Volume 139 — Massachusetts Reports

Appeal by the heirs at law of Henry L. Batchelder from a decree of the Probate Court allowing the will of said Batchelder. At the hearing, before 0. Allen, J., the jury returned a verdict for the executors; and the appellants alleged exceptions to the exclusion of certain evidence, which appear in the opinion.

Contract for the breach of an oral agreement to allow the plaintiff the use of a hall in Chelsea, in a building owned by the defendant. Trial in the Superior Court, before Grardner, J., who directed a verdict for the defendant, and reported the case for the determination of this court. The facts appear in the opinion.

<p>Appeal from a decree of the judge of insolvency, disallowing the plaintiff’s claim against the estate of the defendant corporation. Trial in the Superior Court, without a jury, before Bacon, J., who found for the plaintiff, and reported the case for the determination of this court, in substance as follows :</p> <p>Both parties are manufacturing corporations, established under the general law. In December, 1880, the defendant owed the plaintiff, for borrowed money, $12,800, the debt bearing interest at the rate of seven per cent. On December 30, 1880, the defendant corporation, by a vote of three fourths of its general stockholders, voted to issue special stock to the amount of $100,000, to be subject to redemption at par after July 1, 1885, on which a fixed half-yearly dividend of three and one half per cent was to be paid, and authorized the president and treasurer to issue certificates for said stock, in which should be expressed the amount of dividend to be paid, and the date after which the stock was redeemable. The notice, dated December 23, of said meeting of December 30, was for a meeting “ to consider whether the corporation will issue $100,000 of preferred stock.” No subscription was ever made to this special stock, nor any assessment ever voted or made thereon, nor time fixed at which it should be paid in.</p> <p>On January 21, 1881, the plaintiff surrendered to the defendant the evidences of its indebtedness of $12,800, and paid to it $7200 in money, and received from it two certificates, one for twenty-six shares, the other for fourteen shares, each certifying that the plaintiff was the proprietor of the number of shares specified “ in the special stock of the Boston Machine Company, subject to the by-laws, the same being transferable by assignment in the books of the corporation upon a surrender of this certificate. Said special stock is redeemable at par after the first day of July, 1885, and is entitled to a fixed half-yearly dividend of three and one half per centum.”</p> <p>The plaintiff entered its debt against the defendant upon its books as paid, and opened an account of special stock in the Boston Machine Company, to which it charged the stock at $20,000, and in which it subsequently credited the dividends received upon the stock as interest upon special stock. When the plaintiff took these certificates, there was nothing said as to whether the full amount of $100,000 special stock had been taken or subscribed. The plaintiff’s treasurer, who took and paid for the certificates, testified that when he did so he supposed that the whole amount of the special stock had been taken or subscribed for, but that shortly after he ascertained it had not been, and that he supposed it would not be binding on the plaintiff unless it was so taken.</p> <p>On July 1, 1881, the plaintiff took its dividend of three and one half per cent upon its $20,000 of special stock. On January 1, 1882, it took a similar dividend, and on July 1, 1882, it took another similar dividend, knowing at each of these times that the whole amount of the special stock had not been subscribed for or taken.</p> <p>A special meeting of the stockholders of the defendant company was called for June 8, 1882, “ to consider the question whether the corporation will issue special stock to the amount of two fifths of its actual capital, pursuant to the provisions of section 42 of chapter 106 of the Public Statutes of this Commonwealth.” The record showed that this meeting was adjourned to June 9, and that at this adjourned meeting, there being present more than three fourths of the general stockholders, it was voted “that special stock of this corporation be issued to the amount of two fifths of the actual capital, in shares of the par value of five hundred dollars each, which shall be subject to redemption by the corporation at par on and after the first day of July, A. D. 1885, and on which a semiannual dividend of three and one half per cent' shall be paid.” The vote also authorized the president and treasurer to issue certificates for said stock, in which should be expressed the amount of dividend to be paid, and the time when the stock was redeemable; and provided that certificates issued under the former vote of the corporation of December 30, 1880, might be exchanged for certificates issued under this vote, if the holders so desired. On July 12, 1882, at the suggestion of the defendant, the plaintiff surrendered the certificates received by it on January 21, 1881, and received from the defendant a certificate for forty shares, similar in form to the certificates surrendered.</p> <p>Only $51,500 of said special stock was ever taken or paid in, and this fact appeared by the reports of the treasurer of the defendant corporation at its annual meetings. It was therein called “preferred stock,” and the only other stock mentioned was the capital stock.</p> <p>A special meeting of the stockholders of the defendant corporation was called on February 24, 1883, to consider and vote upon the following matters: “1. Whether the company will</p> <p>call in the balance not already called in of the special stock voted to be issued by the company. 2. Whether the company will increase its capital stock by the issue of a further amount of special stock, and to what amount.” The record of this meeting stated the names of the stockholders present, and that th& following votes were passed: “Voted, that the matter contemplated by the first article of the call be laid on the table. Voted, that special stock of the corporation be issued in shares of the par value of five hundred dollars each, which shall be subject to redemption by the corporation at par on and after the first day of July, A. D. 1885, and on which a semiannual dividend of three and one half per cent shall be paid, to an amount which shall make the entire special stock, including that already authorized, $130,000. The president and treasurer are authorized to issue certificates for said stock, in which shall be expressed the amount of dividend to be paid, and the time when the stock is redeemable ; and any stock not taken by the stockholders, after notice to be given under the provisions of section 37 of chapter 106 of the Public Statutes,- may be disposed of by the directors at not less than par value thereof, as they may determine.”</p> <p>On January 1, 1883, the plaintiff received a dividend of three and one half per cent upon its special stock. On March 2,1883, the defendant corporation failed, and suspended payment. On March 28, 1883, a special meeting of the stockholders of the defendant was held, at which the assistant treasurer (the treasurer being in Europe) of the plaintiff attended, but did not vote on any question, and, on being asked, said he was not there to vote, and it was voted to go into insolvency, and the president was authorized to file a petition for that purpose.</p> <p>The first attempt of the plaintiff to rescind or to avoid the effect of the issue of the certificates of stock to it was made on April 28, 1883, when it delivered the following communication (signed in its corporate name by its assistant treasurer) to the defendant’s treasurer, addressed to the defendant corporation:</p> <p>“ Pursuant to vote of the directors of the American Tube Works, I hereby notify you that the issue and transfer of special stock of the Boston Machine Company and of certificates therefor to the American Tube Works, and payment therefor, are disavowed and rescinded by the American Tube Works, and I demand the return of the money and other considerations paid and given therefor, and the said stock and each and every share and certificate thereof, and all sums paid by the Boston Machine Company as interest, and dividends on each and every share of said stock, are hereby rendered back upon the return of the money and other considerations paid and given therefor.”</p> <p>On May 12, 1883, the defendant was duly adjudged insolvent upon its own petition. The plaintiff subsequently presented its claim against the estate, and it was disallowed by the judge; and the plaintiff appealed.</p>

<p>Contract upon an account annexed, for rent of a room from July 2 to September 3, 1875. Writ dated May 15, 1883. Answer : 1. The statute of limitations. 2. A discharge in bankruptcy of debts existing on July 18,1876. Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows :</p> <p>The defendant made the contract alleged. On January 80, 1878, under the bankruptcy laws of the United States, he obtained a discharge from all debts provable against his estate in bankruptcy which existed on July 18, 1876.</p> <p>On October 7, 1880, the defendant wrote to the plaintiff the following letter: “ When I come to Boston I will call and see you. I mean right; I will also pay something on account.”</p> <p>On February 28, 1881, the defendant wrote a letter to the plaintiff, containing the following: “ I shall pay you something as soon as possible.”</p> <p>After said letters, and before this action, the defendant was in Boston, and had the ability to pay the account declared on.</p> <p>The judge ruled, upon the above facts, that the defendant’s letters constituted a new promise in writing by him to pay said account; and that this new promise avoided in legal effect his defence in this action of the statute of limitations, and of a discharge in bankruptcy; and found for the plaintiff, and ordered judgment accordingly. The defendant alleged exceptions.</p>

<p>Contract for expenses incurred in the support of Maurice Roach, a pauper, from December 8, 1881, to February 24, 1883. 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>Maurice Roach was born in Kittery, in the State of Maine, and neither he nor his parents ever lived in the defendant town. On April 9, 1861, which was before the beginning of the Rebellion, he entered the naval service of the United States at Boston, being there duly enlisted and mustered in for the term of three years as a coal-heaver on board the steamship Minnesota. He was honorably discharged from the service on May 11, 1864.</p> <p>The act of Congress of July 4, 1864, § 8, relating to navy credits, provides as follows: “ That all persons in the naval service of the United States who have entered said service during the present rebellion, who have not been credited to the quota of any town, district, ward, or State, by reason of their being in said service and not enrolled prior to February twenty-fourth, eighteen hundred and sixty-four, shall be enrolled and credited to the quotas of the town, ward, district, or State, in which they respectively reside, upon satisfactory proof of their residence made to the Secretary of War.”</p> <p>Commissioners were appointed by the Secretary of War to ascertain what credits the State of Massachusetts, and the different subdivisions of the State, were entitled to under the U. S. St. of July 4, 1864, § 8. The instructions of the commissioners, given to their clerks to guide them in making assignments of men under the above act, were to copy the rolls of the receiving ship, and to credit only those who had joined the service subsequently to April 18, 1861. After assigning to the different towns, districts, and wards, men resident therein, the commissioners distributed proportionately among said towns, districts, and wards, men to whom no town had proved a right, but who were nevertheless to be credited to the State at large.</p> <p>In the above distribution, which was made in 1864, Roach was assigned as a part of the quota of the defendant town. The town had no knowledge of such assignment until the year 1878.</p> <p>If Roach had a legal settlement in the defendant town at the time the expenses sued for in this action were incurred, judgment was to be entered for the plaintiff; otherwise, for the defendant.</p>

Contract to recover the amount of a tax assessed upon personal estate of the plaintiff for the year 1883, and paid under protest. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, in substance as follows : The plaintiff, on May 1, 1883, was an inhabitant of Belmont, where he voted and paid taxes upon his poll and all his personal property.

<p>Bill hi equity, filed December 8, 1883, to remove a cloud upon the title to four parcels of land in Boston. Hearing before 0. Allen, J., who reported for the consideration of the full court the following case :</p> <p>From 1870 to 1881, John H. Butler owned four estates in Boston, and was assessed therefor legally. On July 1, 1881, said estates were sold to John H. Stark at collector’s sale, lawfully held, for the tax of 1876 lawfully assessed, and the deed was placed on record before May 1, 1882, and the estates were not sold or transferred to any other person until after May 1, 1882.</p> <p>Said estates were assessed to John H. Stark on May 1, 1882, and the same were sold to the defendant on August 30,1883, for non-payment of the taxes assessed.</p> <p>In December, 1882, John H. Butler sold his title to said estates to the plaintiff, who paid to John H. Stark the amount paid by him to the city under the sale of July 1, 1881, together with all interest and expenses thereon, and took from said Stark a deed of the estates, which was immediately recorded. The plaintiff has never offered to redeem said estates from the defendant.</p> <p>On the above facts, the judge found that said estates were properly and legally assessed to John H. Stark on May 1, 1882, and were legally sold to the defendant; and dismissed the bill.</p>

<p>C. delivered a certificate of twelve shares of stock in a corporation to B., a broker, for the purpose of speculation on joint account. B. sold the stock and received the proceeds, but falsely represented to C. that he had the stock in his possession, and paid C. the dividends on it for several years. B. died, and A., his wife, was appointed administratrix of his estate. After her appointment, C. applied to her for his stock, and A., with funds belonging to B.’s estate, bought twelve shares of said stock, had it transferred to C., took the certificate in C.’s name, and delivered it to him, C. thereupon signing and giving to A. the following instrument: “Received of A., adm’x of the estate of B., twelve shares of ... . stock; I agree to hold her harmless in any manner from loss arising out of her above action.’’ A. charged the cost of this stock in her first account as administratrix, but the Probate Court disallowed it, and no appeal was taken from such decree. Subsequently the estate of B. was adjudged insolvent. Commissioners were appointed, whose report of the allowance of creditor’s claims was confirmed. The second account of the administratrix, showing a balance in her hands, was allowed; and an order of distribution to the creditors was made. No claim was proved against the estate for or on account of said stock. C. executed the above instrument upon the information and in the belief that the shares named therein were the identical shares which he had previously owned, and which had been found by A. and returned to C. as his property; and A. understood her husband's estate to be insolvent before delivering said shares to C. Held, that A. could not maintain an action on the instrument against 0.</p> <p>No exception lies to the admission of evidence in behalf of the defendant which corrects that put in by the plaintiff.</p> <p>A count for money paid can be sustained only by proof that the money was paid at the defendant’s express or implied request.</p> <p>No contract can be implied in addition to an express contract in writing relating to the same subject matter.</p>

<p>The Prov. St. of 1692-3 (5 W. & M.) c. 13, § 2, providing that any one building on his own land in Boston might set half his partition wall on his neighbor’s land, and that the neighbor, when he should build, should pay for half of so much of the wall as he should build against, has never been in force in this Commonwealth.</p>

<p>If a mortgagee, in selling by auction the mortgaged premises- under a power in the mortgage, acts in entire good faith, and fully conforms to the terms of the power, this court will not set aside the sale because there was only one bidder at the sale, and the premises were sold for less than their value.</p> <p>The fact that an auctioneer, who sells mortgaged premises under a power in the mortgage, was not licensed as such will not invalidate the sale, if the mortgagee was ignorant of that fact, and the mortgagor was not injured by it.</p>

<p>Land to which an insolvent holds the legal title, upon an implied trust in favor of another, does not pass to the assignee as “ property of the debtor which might have been taken on execution,” within the meaning of the Pub. Sts. c. 157, § 46, although no declaration of trust has been recorded.</p>

Contract upon the following instrument, dated February 28, 1873, and signed by the defendant: “ I hereby guarantee to Mrs. Ellen Thorne the fulfilment of Charles R. Thorne, Jr.’s agreement to pay her the sum of fifty dollars a month; and in default of his paying the same, I agree to pay the same myself.

<p>If a debtor, arrested upon an execution, when taken before a magistrate, declares that he does not desire to take the oath for the relief of poor debtors, and is committed to jail, the magistrate is not authorized, upon the debtor’s desiring subsequently to take such oath, to take a recognizance entered into by the debtor, under the Pub. Sts. c. 162, § 28.</p>

Contract for breach of a promise of marriage. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>A release by a son of all Ms interest in the estate of Ms father given him by his father’s will, is not a bar to an action by the son, against the executor of his father’s will, on a promissory note given the son by his father in his lifetime.</p> <p>The terms of a settlement of certain claims of A. against the estate of B. were reduced to writing, and, in an action by A. against the executor of B.’s will on another claim, the executor relied upon the settlement as a bar to the action. Held, that oral evidence was incompetent to show that the claim in suit was understood at the time to be embraced m the settlement. Held, also, that the executor could not be allowed to testify that he would not have made the settlement, except on the ground that every claim was released. Held, also, that the omission of A. to mention the claim could not be considered as fraudulent.</p>

<p>The mortgagee of a parcel of land took another mortgage covering the same 1 parcel and also another parcel, on which last parcel there was no prior mortgage. Afterwards H., for a good consideration, promised in writing to pay the promissory note secured by the second mortgage, with a provision that the mortgagee should then assign said mortgage and note to him. The mortgagee gave notice of a sale, under a power in the second mortgage, stating that it would be subject to the prior mortgage; and both parcels were offered, and sold free from incumbrances for an entire price, and conveyed to the purchaser accordingly, without the assent of H. Held, that the mortgagee could not maintain an action against H. on his agreement to pay the mortgage note.</p>

Contract for work and labor. In the Superior Court the case was submitted to a referee, by agreement of parties and under a rule of court, whose judgment was to be final. The referee found in favor of the plaintiff.

Action on the Pub. Sts. c. 175, to recover possession of certain premises in Reading. Writ dated February 2, 1883.

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

Contract upon a policy of insurance against loss by fire. Trial in the Superior Court, without a jury, before Rockwell, J., who found for the plaintiff; and reported the case for the determination of this court. The facts appear in the opinion.

<p>The Probate Court has no power to allow costs after a final decree has been entered in the controversy in which the costs accrued.</p>

<p>If the competency of evidence depends upon the existence of special circumstances to entitle the party objecting to its exclusion to a new trial, it must appear in his bill of exceptions that such special circumstances existed, and that the evidence was offered for that purpose.</p>

<p>Weit of entry to recover a parcel of land in North Adams. Plea, nul disseisin. Trial in the Superior Court, before Gardner, J., who directed a verdict for the demandant, and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>If an employer, on an occasion which renders the words privileged, accuses his employee, in the presence of a third person, of stealing money from him, the fact that the employer does not have a full belief that the employee is guilty does not render the words the less privileged, if he honestly suspects him of committing the crime.</p>

<p>The recitals in a warrant issued by a justice of the Superior Court, under the Pub. Sts. c. 80, § 88, for a jury to revise an order of the board of health of a town, that the court was not then in session in the county where the order was made, and that a failure of the applicants for the warrant to appeal from the order was caused by mistake, are not conclusive; and if the court was then in session in such county, and no hearing was had upon the question whether the failure to appeal was caused by mistake, the warrant and the proceedings under it are void.</p> <p>On an application to a justice of the Superior Court, under the Pub. Sts. c. 80, § 88, for a warrant for a jury to revise an order of the board of health of a town, a warrant issued, dated October 27, requiring the sheriff to empanel a jury on November 15, and containing the recitals that the court was not then in session in the county where the order of the board of health was made, and that a failure of the applicants to appeal from such order within three days was caused by mistake. On November 12, application was made to the same jus. tice to change the time of empanelling the jury to November 23. He did so by changing the date in the warrant from November 15 to November 23; and nothing further was done at that time. Held, that the warrant could not be considered as issued on November 12; and that, even if it could be so considered, and if the court was in session on that day, the warrant would not be valid unless the judge then passed upon the question whether the failure to appeal within three days was caused by mistake.</p>

<p>A person on the Lord’s day, partly for exercise and partly to make a social call, walked a mile to the house of a friend, spent the evening there with him and another friend, accepted the latter’s invitation to go to his hotel in a carriage, thus deviating one eighth of a mile from his direct route home, spent a quarter of an hour at the hotel, and, while walking home therefrom, sustained an injury through a defect in a highway. Held, that he was not “ travelling,” within the Pub. Sts. c. 98, § 3; and could maintain an action against the city bound to keep the way in repair.</p>

<p>On a bill in equity to redeem land from a mortgage, an interlocutory decree was entered that the plaintiff be allowed to redeem; that the defendant be allowed for the improvements made on the premises; and that the case be sent to a master to report the amount due on the mortgage, and the value of improvements placed on the land, after deducting the rents and profits. Held, that the plaintiff was not precluded at the hearing before the master from showing that no improvements had been made on the land.</p> <p>The mere fact that a mortgagor knows that a person in possession of mortgaged land, and who contemplates buying the mortgage, is putting buildings on the land, and makes no objection thereto, does not prevent him, on a bill to redeem the land, from contesting the reasonableness of the improvements.</p> <p>After the parties to a mortgage liad negotiated for a release of the equity of redemption, the mortgagee moved a dwelling-house upon the land. Execution of the release was deferred by the mortgagor, and was never made. The house was destroyed by fire after a decree was entered on a bill in equity that the mortgagor was entitled to redeem, but before the account was taken. Held, that the defendant was not to be allowed for the improvement.</p> <p>On a bill in equity against two persons to redeem a parcel of land from a mortgage, if one of them alone has received rents and profits more than sufficient to pay the mortgage debt, he alone should be ordered to pay such surplus, and costs.</p>

<p>The first case was an appeal from a decree of the Court of Insolvency refusing to expunge the appellee’s claim from the list of debts proved and allowed at a meeting of the creditors of the firm of W. L. Gifford and Company. The case was submitted to the Superior Court, and to this court on appeal, on an agreed statement of facts, in substance as follows:</p> <p>On March 29, 1883, a petition was filed in the Court of Insolvency setting forth the insolvent condition of W. L. Gifford and Company, and praying that the joint and several estates of Willard F. Woodward and William L. Gifford, who composed the firm, be seized and distributed, and further proceedings had thereon as in such cases is by statute provided.</p> <p>Due notice of the filing of this petition was given by publication by the register of insolvency, on March 31, 1883 ; and after due notice of the filing of the petition had been given to Woodward and Gifford, and a full hearing had thereon, they were, on May 11, 1883, duly adjudged insolvent debtors, a warrant of insolvency was issued against their joint and several estates, and the appellants were duly appointed assignees.</p> <p>On September 14, 1883, David Dean presented to the Court of Insolvency a claim against the estate of Willard F. Woodward, upon a promissory note dated April 19, 1883, the consideration of which note was money lent by Dean to Woodward on the date of the note. Dean then knew of the publication of the filing of the petition in insolvency, and that W. L. Gifford and Company’s store had been closed by legal process, and that the firm was then in financial difficulties, though he supposed Woodward had property enough to pay all his debts.</p> <p>No account of the money received by Woodward has been rendered to the Court of Insolvency, nor has said money, or any part thereof, been passed over to the assignees by Woodward.</p> <p>The assignees objected to the allowance of said claim by the Court of Insolvency at the time the same was presented, but it was allowed against the estate of Woodward, without a hearing thereon, by mistake.</p> <p>The assignees did not discover that said claim had been inadvertently allowed until the time for an appeal therefrom to the Superior Court had expired, and thereupon, on February 26, 1884, they made application to the judge of insolvency to summon Dean to appear before the Court of Insolvency, and give evidence concerning the proof of said claim, and praying that the court, after hearing thereon, would expunge and alter said claim, on the ground that the same was founded on illegality and mistake. A full hearing was had thereon, Dean appearing and testifying as to said note, as above set forth.</p> <p>On April 11, 1884, the judge of the Court of Insolvency rejected the petition of the assignees, and refused to expunge said claim.</p> <p>The Superior Court ordered the appeal to be dismissed, and judgment to be entered for the appellee; and the assignees appealed to this court.</p> <p>The second case was a bill in equity filed on October 11, 1884, and setting forth the same facts as in the first case. The defendant demurred to the bill for want of equity. The case was heard on the bill and demurrer by 0. Allen, J., and reserved for the consideration of the full court.</p>

<p>Contract upon a poor debtor’s recognizance, entered into under the Pub. Sts. c. 162, § 28. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court on appeal, upon agreed facts, which, after stating the arrest of the debtor, and his entering into the recognizance in suit, stated that on a certain day the debtor procured from a master in chancery a notice of his intention to take the oath for the relief of poor debtors, a copy of which notice, with the officer’s return thereon, was annexed. The copy of the notice showed that it was in the usual form, and stated the time and place for the examination of the debtor. The return of the officer stated that at a certain time Ije “ served the within notice, by giving an attested copy thereof ” to the attorney of the judgment creditor. At the time stated in the notice delivered to the officer, the debtor appeared before the magistrate, and was discharged, neither the judgment creditor nor any one in his behalf appearing.</p> <p>The agreed facts further stated, that the officer served upon the attorney for the judgment creditor a notice not stating any time when the debtor would submit himself for examination. A copy of this notice was annexed, which showed that the notice stated the day, but not the hour, for the examination of the debtor.</p> <p>The agreed facts concluded as follows: “ If, upon the foregoing facts, the court is of opinion that there has been a breach of the defendants’ recognizance, judgment is to be entered for the plaintiff, as provided by statute; otherwise, judgment is to be entered for the defendants.”</p>

Tort for personal injuries occasioned to the plaintiff, on November 21, 1879, by a defect in a highway in Salem.

<p>A deed of a parcel of land described it as bounded north fifty-six feet by a certain street, “east two hundred feet by other land of said grantors on a passageway,” south fifty-six feet by certain land, and west two hundred feet by another street. The grantors owned no part of the streets, and no passageway in fact existed. Held, that no part of the passageway was on the land'conveyed.</p>

<p>The parties to an action pending in the Municipal Court of the city of Boston agreed that the action might be discontinued without costs to the plaintiff, and judgment was entered accordingly. After the adjournment of that court without day, but within the time allowed for an appeal, the plaintiff presented to a judge of that court a paper repudiating the agreement, on the ground that it was obtained by fraud, and claimed an appeal to the Superior Court. The judge permitted the paper to be filed, and allowed the appeal; and the case was entered in the Superior Court. Held, that that court had jurisdiction of the appeal.</p>

Contract, on an account annexed, for goods sold and delivered on May 20, 1881. Writ dated March 16, 1883, and returnable to the Superior Court. Answer, a general denial. The plaintiff filed the following interrogatories to be answered by both of the defendants: “ 1. Did not you purchase from the plaintiff, at or about the date specified in the account annexed to the plaintiff’s declaration, the goods specified in said account ? “ 2. Have you paid for them ? “3.

<p>Bill IN equity by two of the heirs at law of Samuel Q. Cochran, and legatees under his will, against the trustees under his will and the other heirs at law and legatees, to have certain trusts established by the will declared void, or, if held to be valid, that they be decreed to be terminated, and that an annuity given by the will to the testator’s widow be declared to be intestate estate, she having waived the provisions of the will. The case was reserved on the bill and answers, by Qolburn, J., for the consideration of the full court, and appears in "the opinion.</p>

<p>Tort. The declaration contained two counts. The first was in the nature of case, for mutilating a promissory note by removing the defendant’s name therefrom. The second was in the nature of trover, for the conversion of the note.</p> <p>At the trial in the Superior Court, before Brigham, C. J., at the close of the evidence, the judge declined to give certain rulings requested by the defendant, and submitted to the jury certain specific questions; and, upon answers to them being returned, directed the jury to return a verdict for the plaintiff for the full amount of the note. The defendant alleged exceptions, which appear in the opinion.</p>

<p>if the answer to a declaration for goods sold and delivered alleges that the goods were delivered under a special contract, and sets out the contract, which contains several stipulations, and further alleges that the plaintiff has failed to perform the contract, and that the goods delivered have been paid for, evidence that the defendant has been injured by the breach of the contract on the part of the plaintiff is inadmissible, if it appears that the goods delivered have not been paid for.</p> <p>If evidence is admitted which constitutes a variance, this court will not grant a new trial on account of such variance, if the case has been fully and fairly tried, but will permit the pleadings to be amended.</p>

<p>A bill in equity brought under the Gen. Sts. c. 113, § 2, cl. 11, by a creditor not a resident of this Commonwealth at the time of the first publication of proceedings in insolvency against his debtor, to reach and apply, in payment of the debt, the interest of the debtor in the assets of a copartnership of which he was a member, acquired since such first publication, was dismissed, on the ground that the plaintiff could not thus obtain a lien upon such property before he had obtained a judgment at law upon his debt. Held, that the decree was not a bar to an action at law upon the debt.</p>

Bill in equity, filed June 19, 1884, to redeem a parcel of land in South Boston from three mortgages.

<p>Bill in equity by the executors of the will of Lizzie F. Bacon, and certain legatees thereunder, against the executor of the will of Eliza F. Eddy, Lucy Stone, wife of H. B. Blackwell, Susan B. Anthony, and other legatees thereunder, and the Attorney General, to compel ■ the executor of said Eddy’s will to pay over to the plaintiffs the residue of her estate. The bill alleged the following facts :</p> <p>Francis Jackson, the father of said Eliza F. Eddy, died in 1861, leaving a will, by the sixth article of which he gave $5000 to Wendell Phillips, Lucy Stone Blackwell, and Susan B. Anthony, in trust, “ to be expended by them without any responsibility to any one, at their discretion, in such sums, at such times, and in such places as they may deem fit, to secure the passage of laws granting women, whether married or unmarried, the right to vote, to hold office, to hold, manage, and devise property, and all other civil rights enjoyed by men ; and for the preparation and circulation of books, the delivery of lectures, and such other means as they may judge best.” By the eighth article he gave one third of the residue to a trustee, to pay the income to his daughter, Eliza F. Eddy, during her life, and upon her death one half of the income to the trustees and on the trusts named in the sixth article, and the other half to Mrs. Eddy’s daughter, Mrs. Lizzie F. Bacon, during her life, and, on the death of Mrs. Bacon, the principal to the trustees and on the trusts named in the sixth article.</p> <p>It was held by this court that these bequests were not a charity. See Jackson v. Phillips, 14 Allen, 539.</p> <p>In consequence of this decision, certain agreements, releases, and a partition were made, by which one third of the residue of Mr. Jackson’s estate became the property of Mrs. Eddy, subject to being held in trust for herself for life, and thereafter, as to one half, for her daughter, Mrs. Bacon, during her life. Mrs. Eddy died, December 29," 1881, leaving a will by which she. gave absolute legacies to the amount of $24,500 to various persons therein named. This disposed of all her estate except what came to her from her father’s estate. Her will then provided as follows:</p> <p>“ What is.left after paying the above legacies I direct shall be divided into two equal portions; one of said portions I leave to Miss Susan B. Anthony, of Rochester, in the State of New York, as her absolute property, and the other portion I leave to Lucy Stone, wife of H. B. Blackwell, as her own absolute and separate property, free from any control of him. I request said Susan and Lucy to use said fund thus given to further what is called the Woman’s Rights Cause. But neither of them is under any legal responsibility to any one or any court to do so.”</p> <p>The bill further alleged that this residue was substantially the estate received from Francis Jackson; that the will was intended by the testatrix to defeat the decision of this court, before mentioned; that the testatrix had no personal acquaintance with Lucy Stone or Susan B. Anthony; that said gift was intended as a gift in perpetuam to the said cause, and was, without limit of time, upon trust in favor of said cause; and that said cause was not a charity within the meaning of the law, and was null and void.</p> <p>The defendants demurred to the bill for want of equity. The case was heard by 0. Allen, J., on the bill and demurrer, and a decree was entered sustaining the demurrer, and dismissing the bill. The plaintiffs appealed to the full court.</p>

Contract upon the following agreement in writing, dated December 13, 1880, and signed by the plaintiff and the defendant : “ We, Hannah and Grant Connor, agree to pay Catherine Hennessey seven hundred and fifty dollars on second mortgage on a house, 58 Northfield Street, owned now by Hannah and Grant Connor.

<p>Upon a judgment in replevin in favor of a party for part of the chattels, aid against him for the residue, his appeal from the judgment against him does not reopen the judgment in his favor.</p> <p>If a horse which is boarded at a livery stable is allowed by the stable keeper to be used by its owner in his business, and is sold by the owner, without the knowledge of the stable keeper, while the horse is away from the stable, the stable keeper loses his lien; and he cannot regain it by taking the horse from the possession of the purchaser.</p>

Contract to recover for services as steward and mariner on the schooner Winner, of which the defendant was master, from January 2, 1883, to March 19, 1883, at $35 per month, the balance claimed amounting to $86 and interest. After an appeal from the Municipal Court to the Superior Court, the defendant was allowed, without costs, to file an amended answer, setting forth a settlement and release under seal.

Contract for breach of an agreement to sell and exchange certain real and personal property. Writ dated December 12, 1883.

<p>In an action for a malicious prosecution, the following facts appeared: The plaintiff was the tenant of the defendant under a lease which gave the lessee the right to make such alterations “ as do not injure the existing buildings, or impair their strength, or affect any insurance thereon, but no others,” and the lessee covenanted not to use the building in any manner that shall be “ liable to endanger or affect any insurance on said building, or to increase the premium thereof.” The lessee removed a rear wall of the leased building. The lessor was notified by his insurer that the insurance was thereby terminated, and he paid an additional premium to have it continue ; and, acting under the advice of counsel, brought an action of ejectment against the lessee, (which was the alleged malicious prosecution,) and judgment was entered for the lessee. There was conflicting evidence of experts, put in by each side, without objection, on the question whether the risk was injuriously affected by the change. Held, that' there was no evidence to be submitted to the jury of want of probable cause in bringing the ejectment suit.</p> <p>A cause of action for breaking and entering the plaintiff’s close cannot be joined in one count with one for malicious prosecution.</p>

<p>A bond was given to an officer with condition to indemnify him from all suits, damages, and costs whereto he might be liable or obliged by law to pay by reason of levying a certain execution. The owners of the property levied on recovered judgments against the officer, whereon executions were issued. Held, that, in an action on the bond, the obligor was liable for the amount of the penalty, although the executions had not been paid by the obligee.</p>

<p>A constable, in serving a replevin writ for a mortgagee of personal property, permitted the mortgagee’s agent to remove certain articles not named in the writ, upon the agent’s representation that they were included in the mortgage. The mortgagor recovered judgment against the constable for such removal. Without paying the judgment, the constable brought an action against the mortgagee: founded upon an alleged implied promise of indemnity. Held, that the action could not be maintained.</p>

<p>An antenuptial contract between A. and B. recited that A. had agreed to accept a certain provision to be made for her by B. as a substitute for all the rights, claims, and interests to which she might be entitled in or to the real and personal estate of B. in the event of her becoming his widow. A sum was then stated, to be paid one half in six months and one half in twelve months after the death of B. A. covenanted that she accepted the provision in lieu and in full satisfaction of all dower and homestead, and of all other rights to which she might at any time thereafter be entitled in or to any land of B., and in full satisfaction of, and as a substitute for, any distributive share, part, or allowance to which she would be entitled in or to the personal estate or property of B. in the event of her becoming his widow; and that the instrument should be a bar, both in law or equity, to any claim A. might make to any part of the real or personal estate of A. except the provision made for her. B. died, and A. petitioned the Probate Court, under the Pub. Sts. c. 185, § 2, for an allowance from B.’s estate. The executor of B.'s will brought a bill in equity to restrain A. from prosecuting the petition. Before the hearing on the bill, A. received from the executor the sum stated in the contract. Held, that the plaintiff in the bill in equity was entitled to a decree.</p>

<p>Bill in equity, filed May 16, 1883, alleging that, on December 26, 1881, the owners of a certain mine in Arizona executed a bond to one Dowley to convey the mine to him, on or before March 1, 1882, for $50,000; that on January 18, 1882, Dowley assigned the bond to William H. Nichols, the time of payment of the purchase money being extended to January 1, 1883 ; that on March 13, 1882, William H. Nichols agreed to sell one fifth of said mine and of said bond to the plaintiff, one fifth to the defendant, one fifth to one Saunders, and two fifths to other persons, the plaintiff making payment on account of his interest; that in November, 1882, William H. Nichols became insolvent, and notified the plaintiff and the other purchasers that he could not pay the obligors in the bond the balance of the purchase money, and that they might negotiate directly with the obligors; that thereupon, on November 20, 1882, the plaintiff, the defendant, and Saunders executed an instrument, under seal, wherein they covenanted and agreed to and with each other as follows:</p> <p>“ 1. To entrust to Henry M. Rogers the sole, absolute, and untrammelled control of our respective interests, authorizing him to distribute them as he from time to time may deem best, provided only that he reserves to us, respectively, some interest in the mine, or in the stock of the mine provided the mine be put into a stock company.</p> <p>' “ 2. The several sums of money paid or to be paid by us, respectively, to said Rogers, are to be used by him in such manner as his best judgment may approve. That such sums of money are not loaned to him or received by him for any purpose but to try to save to us, respectively, some portion of .the money or of the mine to which we are respectively entitled under our respective agreements with William H. Nichols. Should such sums of money as have been or are to be paid to said Rogers be lost by him, he is in no event to be held personally responsible therefor.</p> <p>“ 3. The said Rogers shall be entitled to receive from the shares of mine or money obtained by him a reasonable compensation for his time and services.</p> <p>“ 4. The said Rogers, in consideration of the premises, agrees with the parties hereto, and with each of them, to use his best energy, skill, and judgment to bring to a successful result the recovery of the mine or the money of the parties hereto, and obtain for them substantial and positive benefits from his labors in the premises.”</p> <p>The bill further alleged, that the plaintiff and Saunders advanced money to the defendant, and that the defendant, on December 5, 1882, obtained a conveyance of two fifths of the mine, and on December 8,1882, agreed to sell to one Miller one tenth of the mine, and on December 25, 1882, obtained a conveyance of two fifths of the mine; that the defendant now holds four fifths of the mine, less the one tenth sold to Miller, to wit, seven tenths of the mine, and all the personal property in trust for the benefit of the plaintiff, Saunders, and the defendant, who have each contributed one third of the purchase money; that on February 15, 1883, the plaintiff requested the defendant to convey to him his interest and render an account.</p> <p>The prayer of the bill was that the defendant execute to the plaintiff a conveyance of seven thirtieths of the mine, and of one third of the personal property and all rights acquired under the bond and agreement.</p> <p>On January 24, 1884, the bill was amended by alleging that the parties to the agreement did not intend, at the time of the making thereof, or afterwards, that the defendant had a right thereunder to hold said property for the purpose of working the mine, or of organizing a company thereunder; that neither of them had pretended that the defendant had such right, or to do anything further under the agreement; but that it was understood and conceded by all parties in interest that each party was entitled to receive a conveyance of his share as soon as the account of the defendant was settled.</p> <p>The amended bill further alleged that the defendant bought of one Warren one tenth of the mine, and gave him therefor the sum of $1300, and also a tenth of the same mine, which last-named tenth the defendant bought of one Chilson, and paid for with funds contributed by the plaintiff, Saunders, and the defendant; that the defendant now denies that the plaintiff has any interest in the tenth purchased of Warren, and claims to hold it to his own use; and that the defendant had not in this transaction acted in good faith, but had acted fraudulently and in bad faith.</p> <p>The defendant demurred to the bill as amended, for want of equity.</p> <p>The case was heard on the bill and demurrer, by Holmes, J., who ordered a decree to be entered sustaining the demurrer and dismissing the bill. The plaintiff appealed to the full court.</p>

<p>Bill in equity, filed April 12, 1884, - by one of several cestuis que trust, to have the defendant, who was one of several trustees under a deed of trust, removed from the office of trustee, and to have a suitable person appointed in his place.</p> <p>The defendant filed a petition^ alleging that he was a citizen of. the State of Massachusetts, and the plaintiff a citizen of the State of Maine; and that the matter in dispute exceeded, exclusive of costs, the sum or value of five hundred dollars; and prayed for the removal of the case to the Circuit Court of the United States.</p> <p>Hearing before Colburn, J., who reported the case in substance as follows, and reserved it for the consideration of the full court:</p> <p>The requisite bond, with good and sufficient surety, was made and filed with the petition for removal, and it was admitted that the parties at the time of filing the bill were, and still are, citizens of different States. The plaintiff opposed the defendant’s petition, on the ground that the action was not removable under the statutes. The defendant offered two affidavits, in support of the averment that the amount in controversy, exclusive of costs, exceeded the sum or value of five hundred dollars; and no counter evidence was offered or objection made to the admissibility of the affidavits, if it was competent in this case to prove by any testimony the facts so sought to be proved.</p>

<p>A testator by his will directed the trustees thereunder to hold the residue of his property “invested as they may receive the same, or at their discretion to sell or exchange the same.” From before the date of his will to his death he was a member of a partnership whose articles provided that, if any member should die, his executors should be entitled to his share of the profits up to the time of taking the second semiannual account after his death. The articles also declared that, the business requiring no capital, none was contributed, but provided for loans to the firm by the partners when needed, at a specified rate of interest. At the time of his death he had lent the firm a large sum of money. Held, that profits received by the trustees over and above interest on the loans should be treated as capital, and not as income.</p>

<p>The city of Boston took the waters of Farm Pond, under the St. of 1872, c. 177. Section 4 of the act provided that nothing in the act should be so construed as to prevent the inhabitants of certain towns from taking from the pond so much of the water granted as should be necessary “for all ordinary domestic and household purposes, and for the generation of steam.” A manufacturing corporation in one of the towns drew water from the pond for generating steam, and for grinding, washing, and cooling rubber. Held, on a bill in equity by the corporation to restrain the city from interfering with the plaintiff in the use of the water, that grinding, washing, and cooling rubber were not purposes for which the inhabitants had a right, under the act, to use the water; and that, until the unlawful use was discontinued, the plaintiff had no standing in court.</p>

Writ oe entry, dated May 26, 1881, to recover a parcel of land. Trial in the Superior Court, before Knowlton, J.* who allowed a bill of exceptions, in substance as follows: In May, 1874, this demandant brought a libel for divorce against her husband, Charles H. Sewall, and attached thereon the demanded premises, which were then the property of her husband, and in his possession.

Tort for acts done by the defendant as a trial justice. Trial in the Superior Court, without a jury, before Rockwell, J., who rendered a judgment for the defendant; and the plaintiff appealed to this court. The facts appear in the opinion.

<p>Appeal by Lizzie G. Robbins and others from a decree of the Probate Court admitting to probate a certain paper writing, dated May 13, 1881, purporting to be the last will and testament of Caira Robbins. The case was tried in this court, before Holmes, J., upon the issues: 1st. Whether the alleged will was duly executed. 2d. Whether Caira Robbins, at the time of the execution of the alleged will, was of sound and disposing mind and memory. 3d. Whether she was unduly influenced to make the alleged will. The judge allowed a bill of exceptions, in substance as follows:</p> <p>After the formal execution of the will had been proved, and the counsel for the executor was about reading the same to the jury, the appellants objected to its admission, on the ground that a subsequent will, dated June 7, 1881, which contained a revoking clause, had been found by a jury to have been duly executed. The judge admitted the will, and the appellants excepted. At this stage of the case the alleged subsequent will was not in evidence, but at a later stage it was put in, together with the record of the trial thereof, from which it appeared that, although the jury found that the will was duly executed, they also found that, at the time of the execution thereof, Caira Robbins was not of sound and disposing mind; and that the decree of the Probate Court admitting the will to probate was reversed.</p> <p>The appellants offered in evidence a deposition of Eli M. Robbins, a citizen of New York, taken under a commission issued by this court in the case of the alleged will of June 7. It appeared from the deposition, a copy of which was annexed to the bill of exceptions, that it related to the state of mind of Caira Robbins during a period of time covering the dates of both instruments. The judge refused to admit the deposition.</p> <p>The appellants called one Currier, the attending physician of Caira Robbins at the time of executing the alleged will, in regard to her condition of mind at that time and during her last illness. On cross-examination, the witness having stated that he should not want to swear how many days he attended court at the former trial, the counsel for the petitioner put into the witness’s hands his certificate of attendance, and for the purpose of testing his memory was allowed to ask the question, “ Having looked at the certificate, can you now recall the number of days you attended ? ” To which the witness answered, “I can’t; I jumped at it.” He was then asked, “Do you know how many days you were paid for attending before this hearing ? ” To which he answered “ Two, I think.” To both of these questions the appellants objected.</p> <p>The appellants offered evidence of what Sylvia Holbrook, deceased, one of the attesting witnesses, had said as to Caira Robbins’s capacity to make a will. The judge excluded it, ruling at the same time that Holbrook’s signature raised no presumption that she thought Caira capable of making a will.</p> <p>There was evidence tending to show that there was no substantial or material change in the mental condition of the testatrix between the execution of the instrument of May 13 and the execution of that of June 7, and that she was suffering at both of said dates from senile dementia, a mental disease of slow progress. The record as to the instrument of June 7 showed that it was not admitted to probate, and that the jury had found that, at the time of executing it, Caira Robbins was not of sound mind.</p> <p>The appellants requested the judge to instruct the jury as follows: “ If the jury find that there was no substantial or material change in the mental condition of Caira between the time of the execution of this will, or paper writing, in controversy, and June 7, 1881, the jury are bound to find that said Caira Robbins was not of sound mind at the time this will was executed.”</p> <p>The judge refused so to rule, and instructed the jury as follows: “ You are not bound to take the condition of June 7 as a starting point, and compare Caira’s condition with that. You must assume that she was incapable of making a will at the particular moment when she tried to on that day. But there is not much evidence, specifically directed to that moment, as to what that condition was, before us; and the thing you have to make up your mind about is whether she was capable of making a will on May 13, and that you are free to decide as you believe «on all the evidence in the case. I must leave it to you how you will use, and what weight you will attach to, the fact that she could not make a will when she tried to on June 7.”</p> <p>The jury found the first and second issues in the affirmative, and the third in the negative. The appellants alleged exceptions.</p>

<p>The Court of Insolvency may order the assignee of an insolvent estate to pay out of the assets a reasonable sum for the use of leasehold property, by the messenger and assignee, for the storage, sale, and delivery of goods of the insolvent estate, until the lease is disclaimed by the assignee in the manner provided in the Pub. Sts. c. 167, § 26.</p>

<p>If an owner of land dies after his land has been injured by the discontinuance of a way, his executor or administrator is the proper party to bring a petition for damages, under the Pub. Sts. c. 49, § 86.</p>

Petition to the Superior Court, filed January 19, 1883, for a jury to assess damages caused to the petitioner by the taking of a portion of its land and water power by the respondent, in the construction of its railroad.

<p>The answer to a petition, under the Pub. Sts. c. 176, to compel the respondent to bring an action to try his alleged title to a parcel of land, averred that the respondent conveyed the land to the petitioner by a deed which contained a clause that the conveyance was made upon the express stipulation that a dwelling-house should he moved or erected on the land-within three years, at a cost not less than a certain sum. The answer further averred, that the stipulation was material; and that the petitioner had broken it; and that the respondent had not as yet made any claim upon the petitioner for any breach of the agreement. Held, on demurrer, that the stipulation did not constitute a condition; and that the petition must be dismissed.</p>

<p>On the issue whether a person was insane at the time of making a contract, evidence of his mental condition eight months-afterwards was excluded. Held, that the party offering the evidence had no ground of exception.</p> <p>On the issue whether a person is insane on a certain day, if the plaintiff puts in evidence that such person was insane at an earlier time, and that the insanity was not of a temporary character, the burden of proof is not on the defendant to show that he was sane on the day in question.</p> <p>On the issue whether a person was insane on a certain day, the judge presiding at the trial is not bound to instruct the jury that, “in the absence of frenzy or raving madness, delusion is the true and legal test of insanity. An insane delusion consists in the belief of things as real which do not in fact exist, or which a rational person would not believe.”</p> <p>The fact that a judge in his instructions to a jury states that certain evidence was offered, but was not admitted, and must not be regarded, when in fact the evidence was admitted, does not afford ground of exception, unless the attention of the judge is called to the misstatement.</p>

<p>Punctuation may be disregarded in construing a statute.</p> <p>The St. of 1846, c. 167, § 1, authorized the city of Boston to take the water of Long Pond, “and the waters which may flow into and from the same, and any other ponds and streams within the distance of four miles from said Long Pond, and any water-rights connected therewith; ” and also to “ take and hold any land on and around the margin of said Long Pond, not exceeding five rods in width, .... and on and around the said other ponds and streams, so far as may be necessary for the preservation and purity of the same, for the purpose of furnishing a supply of pure water for the said city of Boston.” Held, that water-rights might be taken, so far as might be necessary for the preservation and purity of the water; and that the words “and any water-rights connected therewith ” were not limited to the “ other ponds and streams,” but included Long Pond itself, and the waters whicli might flow into and from the same. Held, also, that, under this statute, the city might take a prescriptive right to pollute the waters of a stream running into Long Pond; and that it was not necessary for this purpose to take the land on the sides of the stream.</p> <p>Under the St. of 1846, c. 167, § 1, the city of Boston filed a taking of all the waters of Long Pond, “ and other brooks and streams, whether permanent or temporary, entering into the same, .... and all the water-rights thereunto belonging, or in any wise appertaining, for the sole use and benefit of said city.” Held, that this included the waters of any stream running into Long Pond, and any right then existing to pollute the waters of such stream.</p> <p>After the taking of the waters of a stream for the purpose of supplying a city with pure water, a prescriptive right to pollute the stream cannot be acquired.</p> <p>If a pond and the waters of a stream running into the pond are taken for the purpose of supplying a city with pure water, it is no defence to a petition in equity, under the St. of 1884, c. 154, for an injunction to restrain a person from polluting the stream, that the city has, by means of a dike, prevented the waters of the stream from running into and polluting the waters of the pond.</p>

<p>Under the Pub. Sts. c. 166, § 9, giving this court power to allow a probate appeal to be entered where a party aggrieved by a decree of a Probate Court omits to prosecute it, “without default on his part,” and where “it appears that justice requires a revision of the case,” a justice of this court, on a petition for leave to enter an appeal from a decree admitting an instrument to probate as a will, found that the party was not in default, and reported the case for the consideration of the full court, stating that the petitioner’s evidence tended to show that the testator was of unsound mind at the time of executing the will, and that the respondent put in evidence to the contrary; and that the judge ruled that the petitioner was bound to show more than that the case was a debatable one, and such as might fairly have been submitted to a jury, if duly entered; that the petitioner should prove to the satisfaction of the court that justice required a revision of the case; and that the evidence of the petitioner failed to do this. Held, that no error appeared.</p>

Complaint to the Municipal Court of the city of Boston, under the Pub.

Complaint to the Municipal Court of the city of Boston, for the violation, on June 21, ,1884, of a regulation of the board of aldermen of said city, which provides that no owner, driver, or other person having the care or ordering of a vehicle, shall suffer the same to stop in a street of said city for more than twenty minutes.

Indictment charging that the defendant, on June 1, 1884, and on divers other days and times between that day and December 2, 1884, at Needham, “ near the dwelling-houses of divers good citizens of the said Commonwealth, and also near divers public streets and common highways there situate, then and there did keep and maintain, and yet doth keep and maintain a large number of swine, to wit, five hundred; by reason whereof divers large quantities of noisome, noxious, and…

<p>In 1871, a husband advanced money to his wife for the benefit of her separate estate, and she, in consideration thereof, made a promissory note payable to A. or hearer, and executed to A., as security therefor, a mortgage of a parcel of land. A. assigned the mortgage to the husband, and delivered the note to him. The husband afterwards, during the life of the wife, assigned the note and mortgage to B., who entered to foreclose the mortgage, and brought a writ of entry, against a person claiming under the wife, to recover possession of the land. Held, that the writ could be maintained.</p>

<p>By an accident to a freight train on the Troy and Greenfield Railroad, (then operated by the Fitchburg Railroad Company under a contract, by the terms of which the manager of the first-named road was authorized, in case of an accident thereon, to direct the clearing of the road, when necessary to prevent delay to other roads,) a large number of swine were let loose from the train, and scattered on and about the tracks. The manager directed his servants to collect them, and put them in a safe place. The servants took them to the barn-yard of the plaintiff, in his absence and without his license. On his return, he did not assent or object. He was asked to feed the swine, and did so, and collected a few of them himself, placing them in his yard Afterwards he assisted in taking them away, and sent a bill for food and services, and for the damage done to his grass. Neither the plaintiff nor the manager knew that the swine were diseased at the time they were in the plaintiff’s yard, but it afterwards appeared that the swine were then diseased, and that the disease was communicated to the plaintiff’s swine a few minutes after the swine were placed in his yard. Held, in an action against the manager for the loss thus sustained, that the manager acted within the general scope of his authority. Held, also, that it could not be ruled, as matter of law, that the manager had been guilty of a trespass, and was liable for the loss of the plaintiff’s swine.</p>

<p>Water-rights belonging to different owners were taken by a water company, for the purpose of supplying a town with pure water, under a statute which provided that damages occasioned by the taking should be assessed and determined in the manner provided when land is taken for highways. Separate petitions were filed, and the cases were heard together before a sheriff’s jury, which awarded to some of the owners larger damages than had been awarded by the county commissioners, and to one owner a less sum. Held, that none of the petitioners were entitled to have costs taxed against the water company; but that the prevailing parties were entitled, under the Pub. Sts. c. 49, § 56, to have their costs paid from the county treasury. Held, also, that the provisions of the Pub. Sts. c. 49, §§ 18-24, did not apply.</p>

<p>Writ of entry to recover a lot of land in the city of Worcester. Plea, nul disseisin. Trial in the Superior Court, without a jury, before Blodgett, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The land in dispute was a triangular tract on the northerly side of Dix Street, marked on a plan used at the trial, a copy of which is printed in the margin,* as “ Demanded Premises.” It</p> <p> </p> <p>Dix Street. 46 ft. appeared that all the land lying next northerly of Dix Street and between Wachusett Street on the east and Goulding Street on the west was formerly owned by Henry Goulding, and was divided into lots and sold by his executors. The tenants’ lot was at the corner of Dix Street and Wachusett Street, and the demandant’s lot was part of the lot next westerly, and the question was as to the westerly boundary of the tenants’ lot and the easterly boundary of the demandant’s lot, under the following deeds:</p> <p>On February 20,1869, Goulding’s executors conveyed the corner lot to Blackmer and Kelley, (under whom the tenants derive their title,) by the following description: “ A certain lot of land situated in the city of Worcester, on the westerly side of Wachusett Street and northerly side of Dix Street, bounded and described as follows, to wit: beginning at the southeasterly corner of the lot conveyed, and at the intersection of said streets; thence running northerly by Wachusett Street one hundred and thirty-four feet, to land of the heirs of Henry Goulding; thence running westerly by land of the heirs of said Goulding, sixty feet; thence running southerly by land of said heirs at right angles to said Dix Street one hundred and twenty-five feet to Dix Street; thence running easterly by Dix Street sixty-one feet more or less to the first-mentioned bound, containing 7770 feet more or less.”</p> <p>On October 8,1869, said executors conveyed the residue of the land between the tenants’ lot and Goulding Street to one King, by a deed which contained the following description: “Lot of land on the northerly side of Dix Street, bounded as follows: beginning at the southeasterly corner of the lot at a corner of land of Kelley and Blackmer and running westerly on Dix Street one hundred and eighty feet to a new street about to be made; thence turning and running northerly on said new street one hundred and twelve and a half feet, to land belonging to the estate of the late Henry Goulding; thence turning and running easterly on said Goulding estate one hundred and eighty feet, to land of Kelley and Blackmer; thence turning and running southerly on land of said Kelley and Blackmer one hundred and twenty-five feet, to the place of beginning on said Dix Street.”</p> <p>It was agreed that the new street referred to was Goulding Street, and the corner of Goulding Street and Dix Street was a known and fixed bound.</p> <p>On May 8, 1871, King conveyed to the demandant a part of said lot, forty-five feet wide on Dix Street, bounded as follows:</p> <p>“ beginning at the southeasterly corner thereof at corner of land of Kelley and Blackmer, and at a point one hundred and eighty feet distant from the easterly line of Goulding Street, thence northerly on land of Kelley and Blackmer one hundred and twenty-five feet, to land of the estate of Henry Goulding; thence westerly on said land of Goulding forty-five feet; thence southerly and parallel with the first-described line one hundred and twenty-five feet more or less, to said Dix Street; thence easterly on Dix Street forty-five feet, to the place of beginning.”</p> <p>The corner of Dix Street and Wachusett Street was a known and fixed bound, and the northerly line of Dix Street was a known and fixed line.</p> <p>If the third line described in the deed of the executors to Blackmer and Kelley is drawn at right angles to Dix Street, it strikes a point on Dix Street eighty feet and fifty-two one-hundredths of a foot from Wachusett Street, and one hundred and sixty-one feet and ninety-four one-hundredths of a foot from Goulding Street. In such case, the tenants’ line on Dix Street is eighty feet and fifty-two one-hundredths of a foot in length, and is shown by the westerly dotted line, and their lot contains 9101 square feet.</p> <p>If the third line described in said deed to Blackmer and • Kelley is drawn so as to strike Dix Street one hundred and eighty feet easterly from Goulding Street, the tenants’ line on Dix Street is sixty feet and a half in length, and their lot contains exactly 7770 square feet.</p> <p>The demandant offered evidence tending to show that, before the several lots were sold by the executors of Henry Goulding, they prepared a plan of them, which was produced at the trial; and it was testified by one of the executors, that the lots were sold by said plan, but there were no monuments at the corners of the lots when the deeds were given, and there was no evidence that Blackmer and Kelley saw the plan before they took their deed. Said plan showed the tenants’ lot to have a line of only sixty feet and a half on Dix Street, and showed that the westerly line did not make a right angle with Dix Street.</p> <p>The demandant also offered evidence tending to show that, in the year 1876, he erected a fence between his said lot and the tenants’ lot, (Kelley, who had bought Blackmer’s interest, then being the owner of the tenants’ lot,) and by Kelley’s consent it was placed on the line as claimed by the demandant, and remained there several years, and until removed by the tenants a short time before this suit was brought.</p> <p>The demandant asked the judge to rule that it was a question of fact, on all the evidence, whether the tenants’ westerly line was to be drawn at right angles to Dix Street, and asked a finding in fact that it was to be drawn at an angle to said Dix Street, so as to strike said street sixty and a half feet from Wachusett Street. The judge ruled, as matter of law, that the said line was to be drawn at a right angle to Dix Street, without regard to the evidence outside of the deeds; and found for the tenants. The demandant alleged exceptions.</p>

<p>A delivery by a wife to her husband of a check payable to the order of a third person does not necessarily constitute the husband the agent of the wife to receive the amount of the check.</p> <p>A husband having a check in his possession, which had been delivered to him by his wife, and which was signed by her and was payable to the order of a third person, said to this person that the wife had given it to him (the husband) and he wanted it cashed. The third person gave the husband the amount of the check, and collected the money from the bank. Held, in an action by the wife against the third person, for money had and received, that the statement of the husband was not evidence against the wife, either that the check was a gift to the husband, or that he was authorized to receive the proceeds of it.</p>

<p>Contract, against the executrix of the will of Isaiah C. Ray, for money had and received. Writ dated May 12, 1883. The declaration also contained a count in tort, as follows: “ The plaintiff says the defendant’s testator, in his lifetime, made a declaration of trust, a copy whereof is hereto annexed, whereby he undertook and agreed to hold the property therein described for the benefit of the plaintiff, and to deed the same to him, his heirs and assigns, or to dispose of the same when and for his best advantage. And the said testator fraudulently, secretly, and without the knowledge or consent of the said plaintiff, conveyed the said property, by a good and sufficient deed, to one Mary A. Norton, the wife of the said plaintiff, and thus deprived the plaintiff of the use, enjoyment, or advantage of the same.”</p> <p>The copy annexed, signed by the defendant’s testator, and dated January 2, 1866, was as follows: “ Be it known that on the third day of July a deed of sale was made from the estate of Rodolphus Norton—on the twenty-seventh day of December, 1865, the same was acknowledged in my favor — of a certain lot of land, situated in the town of Edgar town in the county of Dukes, Commonwealth of Massachusetts, for the sum of five hundred dollars — and be it known that I now hold the same in and for the benefit of Wm. T. Norton in trust, and am ready at any and all times to deed the same to him, his heirs and assigns, or to dispose of the same, when and for his best advantage, he paying all expenses and charges for the same.”</p> <p>Trial in the Superior Court, without a jury, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared that, on December 27, 1865, Isaiah C. Ray, the defendant’s testator, bought at the plaintiff’s request, with the plaintiff’s funds and for his benefit, a dwelling-house and lot in Edgartown, and received a deed of it, running to himself and his heirs, without disclosing any trust. On January 2, 1866, Ray executed and delivered to the plaintiff the paper, a copy of which is annexed to the declaration.</p> <p>On November 1, 1869, Ray executed a deed of this lot to the plaintiff’s wife “ during her natural life, if she remains unmarried.” Ray sent this deed to the plaintiff’s wife at Edgartown. She took the deed, got it recorded, and paid for recording it.</p> <p>The plaintiff had no knowledge or information of the making of said deed until a short time before the commencement of this action, and did not authorize it in any way. At the time it was made, his wife lived apart from him, and has done so ever since. There was no evidence how or by whom the property was occupied or managed prior to that, but the plaintiff’s wife has continuously resided upon it since. At one time, it did not appear when, Ray offered the plaintiff’s landlady a sum of money, if she would get and bring to him the declaration of trust, without the plaintiff’s knowing it.</p> <p>The plaintiff claimed to recover, as damages, the value, at the date of the writ, of the estate conveyed by the deed to his wife. The judge found this to be $278.85, and found for the defendant ; and at the plaintiff’s request, and with the defendant’s consent, reported the case to this court for its opinion upon the questions of law involved.</p> <p>If, as matter of law, upon the foregoing facts, the plaintiff was entitled to recover, judgment was to be entered in his favor for $278.85, and interest thereon from the date of the writ, or such other order to be made as law and justice might require; otherwise, judgment for the defendant.</p>

<p>In 1855, a guardian, acting under a license from the Probate Court, and intending to convey her two minor wards’ one undivided fifth each of a lot of land, in which she had an estate of dower, by mistake convej'ed “ two undivided fifths of two undivided thirds ” of the lot. Through the agency of G. she became the purchaser, and made improvements, and in 1867, after the wards became of age, conveyed the land to G., who made costly improvements. The guardian did not invest the proceeds of the sale for the wards’ benefit, and did not pay over or account for the same. The wards did not know of her transaction with G., and had only a general knowledge of the visible improvements. Held, on a bill in equity by the assignees in insolvency of G., filed in 1880, against the former wards, to prevent them from setting up a title to the land, that the bill could not be maintained.</p>

<p>Tort for personal injuries occasioned to the plaintiff by an alleged defect in a highway, which highway it was admitted the defendant was bound to keep in repair. Trial in the Superior Court before Staples, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff introduced evidence tending to show, that he was driving his horse and wagon over said highway at about seven o’clock in the evening of August 25, 1882; that his horse was gentle and trusty, and he was driving with due care; that, at a point about sixty feet east of “ Dry Swamp Ditch,” so called, his horse was frightened by a rabbit suddenly leaping from a thicket and darting across the way, and the horse shied toward the south side of the road, and the wheels of his wagon toward the south side of the road went down into a gutter on that side of the road; that the road at that point was eight or nine feet wide, from shoulder to shoulder; that the wheel rut on the south side of the road was about ten inches from the shoulder of the road on that side; that the said shoulder was abrupt and precipitous, falling off to the depth of twenty-two inches into said gutter, at an angle of seventy degrees; that there was no railing at that point on the highway, and but one set of ruts; and that he was thereby thrown out of his wagon and was injured. He also testified that the road at that point was so narrow that two carriages could not safely pass abreast; that it was not safe for a carriage to go with one wheel in the gutter; that the north side was grown up with bushes quite near to the shoulder; that bushes grew up close to the shoulder on the south side, so as to conceal the steepness of the bank; that measuring from the south wheel rut, on the level of the road, out over the gutter a distance of two feet, and then measuring perpendicularly to the soil of the gutter, the distance was twenty-two inches; and that, within thirty days after the accident, he gave due notice of the time, place, and cause of the injury to the town, by delivering to one of the selectmen thereof a written notice, dated September 20, 1882, which specified the defect to be “ the improper grading of said road, and the want of proper railing by the side of said road.”</p> <p>The plaintiff also offered evidence to show that, within two weeks after the time of receiving said notice, one of the town road commissioners, having charge of repairs of this section of the road under the statute, repaired said road at the point of the accident by filling in the gutters and widening the road four or five feet to the south; as tending to show an admission, on the part of the town, that the highway at this point was defective at the time of the accident. The judge excluded this evidence, there being no evidence of any vote of the town authorizing such repairs, or of any ratification of the acts of the commissioner.</p> <p>The judge instructed the jury, that the only thing to be considered, with respect to the question of a defect in the way, was whether there should have been a railing at the point where the accident occurred; that, under the notice served on the town, they should consider the narrowness of the way, and the character of the declivity, not as substantive defects, but as bearing upon the question whether or not there was need of a railing at that point; to which instruction the plaintiff excepted, claiming the right to have the narrowness of the way considered as a substantive defect.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>A person who gets upon a railroad train after it has started does not become a “passenger,” within the Pub. Sts. c. 112, § 212, until he reaches a place of safety inside of the car intended for him to ride in, and no action can be maintained for his death, if he falls off the platform of the car, and is killed.</p> <p>Running a railroad passenger train at the rate of thirty miles an hour on a straight track is not gross negligence, within the Pub. Sts. c. 112, § 212.</p>

<p>If a declaration contains several causes of action, and a general verdict is returned for the plaintiff for nominal damages, he has no ground of exception to any ruling given at the trial, or to any refusal to rule, unless such ruling or refusal to rule relátes to the question of damages.</p>

<p>To a writ of entry in 1882, the tenant filed a disclaimer to so much of the demanded premises as lies southward of the old channel of a certain river, namely, “ where said river was in 1840, and previous to the formation of the present or new channel.” There was no evidence that there was anything to indicate where the channel was before 1840. Held, that the disclaimer was too uncertain and vague to have any effect.</p> <p>A testator, by his will, expressed his wish that a certain island should “be kept for the benefit of my children,” the income to be divided among them, "to them and their heirs; and I do hereby request and order that my executors have the care of the same, and collect and pay over the rent to my said children, all the rents and income to be equally divided between them, and if hereafter my said children should think best to sell and dispose of said island, they may have the right to do so, — the proceeds to be equally divided.” Held, that the fee of the island was in the children, and not in the executors; and that the children could maintain a writ of entry to recover possession of it.</p> <p>At the trial of a writ of entry, a quitclaim deed, more than thirty years old, of the land in question to the demandant’s father, signed by persons purporting to be agents for the freeholders and proprietors of common and undivided lands in the town where the demanded premises are situated, accompanied by evidence that the grantee entered under the deed, and was in possession of the land, is admissible in evidence, even if the deed did not convey title.</p> <p>At the trial of a writ- of entry to recover possession of an island, there was evidence that, for more than twenty years, the demandant and his ancestor had sold sand and drift-wood from the island; that they had made leases of cottage rights, and had conveyed one parcel in fee. Held, that the evidence was sufficient to establish a title against one who was a mere intruder.</p> <p>A tenant in a writ of entry, who is a mere intruder, is not entitled to an instruction that the demandant must show a perfect title.</p>

Tobt, under the Pub. Sts. c. 100, § 21, for injuries to the plaintiff resulting from the intoxication of his wife, caused by intoxicating liquor sold to her by the defendant.

<p>Tort, under the Pub. Sts. o. 112, § 212. The second count of the declaration, which alone need be stated, alleged that the defendant was a corporation owning and operating a railroad between Boston and Portsmouth, and was a common carrier of passengers between said places; that William K. Merrill, the plaintiff’s intestate, was a passenger on a train of the defendant; and that, while he was a passenger as aforesaid, the defendant, by the gross carelessness of its servants and agents, drove an engine and cars of the defendant against him, whereby said Merrill was killed. Answer, a general denial.</p> <p>Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, which, after stating that the pleadings might be referred to, was in substance as follows:</p> <p>The evidence introduced by the plaintiff tended to prove that the deceased was a passenger on a train approaching the station at North Beverly from the west; and that, before the train reached the station, it stopped, and the name of the station was called by the defendant’s servants or agents, and thereupon the deceased went down the steps of the car in which he was riding, stepped from the lower step, and disappeared with a train which passed in the opposite direction upon another track.</p> <p>Frederick A. Prescott, a witness called on behalf of the plaintiff, testified that he was in the train on which the deceased was riding, just before the accident; that, as it approached North Beverly station, but before it reached the station, it stopped, and the witness, who sat in a car in the forward end of the train, but not the car in which the deceased was riding, but whether it was the next car or not he did not know, heard some one call the station; and that almost immediately afterwards the express train, by which the deceased was struck, flashed by on the side towards the station, on the other track. He was then asked, “Did you notice whether anybody left the train or not, or got up?” This question, being objected to, was withdrawn, and witness was asked, “ Did you notice that anything took place?” Objection was made to this question, on the ground that the witness was not in the same car with the deceased. This was overruled, and the witness’s answer was, “I noticed that people went towards the door, and the door was closed after.”</p> <p>Annie Symonds testified to being on the same train as the last-named witness, and to its stopping as before stated; that she was in the rear car, while the deceased, it appeared, was in the smoking-car, and there were several cars between them. She was then asked, “What did you do?” She answered, “I got up and went out on the platform on the forward end of the car, and, as I stepped on the platform, an employee of the road, who wore a badge and was the same person who had taken my ticket, said, ‘Wait and I will help you down.’ He went down the steps of the car, and I went down the steps, and I got down to the ground.” This question and answer were admitted, against the objection of the defendant.</p> <p>Mary J. Gibney testified that she was upon the train, but did not know the position of the car in which she was, except that there were other cars between her car and the rear, and other cars between her and the engine. The following questions and answers were admitted, subject to the defendant’s objection :</p> <p>Qu. “ Did you hear anything said or anything called before the train stopped? Did you hear any name or place called?”— Ans. “ North Beverly.”</p> <p>Qu. “ And by whom was it called, do you know ? ” — Ans. “ I do not know.”</p> <p>Qu. “In what maimer was it called?” — Ans. “North Beverly. I rose up out of my seat, and got out of the car.”</p> <p>Qu. “ Did you rise up before you heard the words North Beverly?” — Ans. “No, sir.”</p> <p>The evidence introduced by the defendant tended to show that the train on which Merrill was did not stop before the express train passed, but that it slowed down to the rate of from two to five miles an hour; that the station North Beverly was not called by any one in the defendant’s employ until after the express train had passed and the station had been reached, and, generally, that the defendant’s servants and agents were not negligent.</p> <p>The defendant requested the judge to instruct the jury as follows: “ It is incumbent upon the plaintiff, in order to recover in this action upon the second count, to prove that the deceased was in the exercise of due care.” The judge declined so to rule.</p> <p>On points not involved in or connected with the rulings heretofore mentioned as objected to, the judge gave appropriate and full instructions, which were not excepted to.</p> <p>The judge further instructed the jury as follows: “ Passing all the matters not in controversy, and which are assumed by both parties, for the purpose of determining whether Mr. Merrill was a passenger, it becomes us to inquire whether this train stopped. I may say in reference to all the counts in the declaration, it is essential to inquire whether this train upon which Mr. Merrill was riding stopped. Unless it be proved that that train came to a full stop before he got off, he cannot recover upon any count in this declaration. He cannot recover, first, because he does not show himself to have been a passenger at the time he received the injury. If he left that train while it was in motion, he was neither a passenger nor a person in the exercise of due care. So that if he left that train while it was in motion, that is the end of this case in any light in which you may consider it. There can be no recovery on either of the counts if he left the train while in motion.</p> <p>“ The evidence by which the plaintiff seeks to establish the fact that that train did come to a full stop is the testimony of Prescott, that the train came to a stand-still, and, after it came to a stand-still, the station was called, and after that the express train dashed by; and the testimony of Mrs. Symonds, who was in the rear car. She says the train stopped, and she got up and went out; that one of the employees helped her to the ground, the express train passed, and she felt the current of wind and dust; all this testimony is competent only on the question whether the train stopped. What she did is competent only as it bears upon this question, whether the train stopped. It is not of any consequence whether she was invited by an employee to alight. She was in the rear car, and no inducement for her to alight would have a bearing as to whether the deceased was induced to alight. But her testimony, what she did, is competent for you to consider. It is competent on whether, as she says, the train came to a full stop. She says she went- out on to the ground, and was put back upon the steps, and after being so put back the train passed by.</p> <p>“ Then the testimony of Mrs. Gibney. She says, ‘ The train stopped, and I got off.’</p> <p>“ Now upon this evidence it is for you to say whether the plaintiff has proved by a fair preponderance of evidence that the train came to a full stop. If you find it is proved that the train stopped, it then becomes necessary to inquire whether the station was called, and whether it was called by any person authorized to call it. It is not material whether the station was called, unless called on the car where the deceased was, or within his hearing. For although the train had stopped, if the stop was at a place not a station, and there was no action on the part of the corporation to induce a passenger to leave the cars, any one leaving the train at such a place would cease to be a passenger.</p> <p>“ The testimony of Prescott is, that the station was called, ‘ North Beverly,’ by the same voice that had called the other stations, and after that the express train dashed by. And Prescott’s testimony in relation to his position in the train is to be borne in mind; that he took the car near the forward end of the train; that he started for the smoking-car, but changed his mind and entered the car near the forward end; he is not able to say whether it was the third or fourth. Mrs. Gibney says she does not know the position of the car in which she was, except that there were other cars between her car and the rear, and other cars between her and the engine which she passed by when she left. She says, ‘I did not get out until I heard North Beverly called, when I got out; felt the jar of the train passing, but did not see it.’ The testimony of George W. Wood is, that he was in the smoking-car; the train stopped; somebody called,</p> <p>‘ North Beverly, North Beverly.’ Frank A. Trask testified that he was in the smoker, and the station was called just as the train stopped, either at the rear end of the car or the front of the next car. He saw the express train pass.</p> <p>“ The burden of proof is upon the plaintiff to establish that the station was called. Unless he establishes this fact, he fails to establish the fact that he was a passenger at the time of the injury. If you find that the plaintiff’s intestate was a passenger at the time he received the injury, you will have no occasion to consider whether he was in the exercise of due diligence.</p> <p>“ And, in addition to the proof that the station was called, you must be satisfied, upon the whole evidence, that Mr. Merrill, when he got off the train, did not know that it was not the station. If he was acquainted with the locality, — if, from his acquaintance with the locality, he could at the time know that the announcement of the station was a mistake, that he was not at the station, — he would have no right to avail himself of the mistake of the corporation to leave the train. In determining that, you are to take into account the time of day, and whether he did know, or had reasonable cause to know, that the train was not at the station. If he knew, or had reasonable cause to know, that the train had not arrived at the station, he could not take advantage of the mistake of the corporation and leave the train. But if he was induced by agents of the corporation to believe that the station had been reached by the announcement of persons authorized by the corporation to announce, and acted upon that, then he would retain his rights as a passenger, and be entitled to protection accordingly as a passenger.”</p> <p>No further or other instructions were given bearing upon or in relation to the testimony excepted to, or to the point upon which the judge was requested to rule.</p> <p>The jury returned a verdict for the plaintiff, on the second count of the declaration, in the sum of $2900. The defendant alleged exceptions.</p>

<p>Bill in equity, filed February 28, 1884, against James W. Aldrich, trustee under the will of Elizabeth K. Purinton, Alice S. Longley, Elizabeth K. Haskell, Mary K. Boyce, and Lizzie W. Aldrich. The bill alleged, in substance, that on January 7, 1872, George W. Keene, Elizabeth K. Purinton in her own right, Pelatiah Purinton, her husband, and William S. Boyce, trustee for Lydia G. Aldrich, executed, under seal, to William F. Snow and William A. Messinger a lease, which was duly recorded, of certain land in Lynn, for the term of nine years ■from October 7, 1871, which lease contained the following covenant : “ It is hereby agreed by the parties hereto that this lease may be extended or renewed, at the expiration of the time herein mentioned, for a further term of ten years,” at a certain rent.</p> <p>The bill further alleged, that, with the assent of the lessors, ' the lease was, on February 12, 1875, assigned to the plaintiff, who entered into possession thereunder, and occupied the premises during the remainder of the nine years’ term; that, on the expiration thereof, the plaintiff demanded of the lessors and those having their estate in the premises that the lease be extended and renewed for the term of ten years from October 7, 1880, which demand was and still is refused. The prayer of the bill was, that the defendants be ordered and decreed to extend and continue the lease, on the conditions therein set forth, for the term of ten years from October 7, 1880, and for further relief.</p> <p>The defendants Elizabeth K. Haskell, Alice S. Longley, and Lizzie W. Aldrich filed a plea to the bill, alleging that Avis Keene, by her will, which was admitted to probate on December 3, 1867, devised one undivided third part of the land in question to William S. Boyce, “to have and to hold the same to him during the natural life of my daughter, Lydia G. Aldrich, upon the trusts and to the uses following, to wit, to take and receive the rents, profits, and income thereof, and therewith to pay all necessary charges and expenses in and about the same; and the residue of such rents, profits, and income to pay to my said daughter, Lydia G. Aldrich, annually, to her sole and separate use, and on her sole' receipt.</p> <p>“And I do hereby authorize and empower the said William S. Boyce, if he shall judge expedient, to sell and convey, for such price as he shall deem proper, in fee simple or for any less estate, any part or the whole of the real estate given him in trust as aforesaid; and the proceeds thereof to invest or put at interest on good- security, and the income or interest of the same to pay to my said daughter as aforesaid; and I do further authorize .and empower the said William S. Boyce, from time to time, to pay to my said daughter any part of the principal of such proceeds, to her sole use and on her sole receipt, as in his judgment she may need for her comfortable support and maintenance.</p> <p>“ And I do direct the said trustee to pay the residue of said property which shall remain at the decease of my said daughter to the children of my said daughter, in equal proportions; and the children of any child who may have deceased to be entitled to the same share as his or her parent would have been if then living.</p> <p>“ The remainder or reversion of said real estate, from and after the decease of my said daughter, Lydia G. Aldrich, I do give and devise, in equal proportions, to her children who may be then living, provided, that if any of her children shall have died and shall have a child or children living at that time, then such child or children is to be entitled to the same share as his or their parent would have been if then living, — to have and to hold the same, to them and their respective heirs, to their respective use forever.”</p> <p>The plea further alleged, that Boyce was duly qualified as trustee under said will, and entered upon the execution of said trust, and continued therein until his decease, which was several years prior to the expiration of said lease; that the said trust was, by its terms, terminated by the death of Lydia G. Aldrich; that the parties to this plea, as the children and representatives of the deceased child of Lydia G., were entitled to said third, and had entered into possession of the same; that Boyce had no other estate, right, or power in said premises than was granted him under said devise; that the agreement or covenant to renew said lease entered into by him was void and of no effect against these defendants; that after the decease of said Boyce, Charles F. Coffin was duly appointed trustee as his successor, and was such upon the expiration of the lease; that he has since resigned, and James E. Breed was appointed in his place, and that he continued as trustee thereof until the death of Lydia and the consequent termination of said trust; that the defendants are cotenants, in common and undivided, with the other defendants, in said premises and land adjoining the same, being a parcel of land formerly belonging to Avis Keene, who devised the same to the defendants or their respective grantors, and since her death the whole land has been held in common and undivided; and that the agreement and covenant to renew, on the part of the lessors named in said lease other than said Boyce, being an agreement to lease or convey an undivided part of a divided portion of an estate in common, was voidable, and void and of no effect, as against these defendants.</p> <p>The defendants Mary K. Boyce and James M. Aldrich filed a separate plea, adopting the statements of the other plea.</p> <p>Hearing, before Bevens, J., on the bill and pleas, who reserved the case for the consideration of the full court.</p>

Bill in equity, against Silas Fairchild, Gilbert Hawkes,' and Amos F. Breed, to compel the conveyance to the plaintiff of one undivided tenth part of a certain parcel of land in Lynn, called the Merry Place. The defendants Fairchild and Hawkes were defaulted. The defendant Breed filed a plea, setting up title to the land.

Petition for a writ of certiorari to quash the proceedings of the county commissioners of Essex, in refusing to abate a tax assessed by the city of Lynn, on May 1, 1882, upon the estate of the petitioner. The case was heard by 0. Allen, J., and reserved for the consideration of the full court, upon agreed facts, in substance as follows.

<p>A deed, which described the grantors and grantees as the heirs at law of E., released and quitclaimed a lot of land on the north side of a street, describing it by metes and bounds, being the same premises conveyed to E. by a certain deed, “ -ogether with all our right, title, and interest in the land between said lot and the sea, lying on the southerly side of said street. The said E. died seised of said estate.” At the time of his death, E. was seised of the lot first described in the deed, and of an undivided interest in a large tract of land on the southerly side of the street, which tract embraced land not only directly in front of the lot on the north side of the street, but east and west of that land. One of the grantors, at the time the deed was executed, held, as heir of E., an undivided fortieth part in the lot north of the street and in the tract south of it, and also, by an independent title, an undivided fifth part in the tract south of the street. Held, that the deed included the entire tract south of the street, and not merely the part directly in front of the lot on the north side of the street. Held, also, that as to this tract only the title which the grantors had therein as heirs passed; and that the independent title of the grantor mentioned did not pass.</p> <p>One tenant in common of a tract of land bordering upon the sea' enclosed a portion by a bank wall, and placed upon a part of it a fish-house, not fastened to the soil, and susceptible of easy removal, and a pump. He afterwards let the fish-house, receiving rent therefor, paid taxes on the house, but not, eo nomine, on the land. The other tenants in common used the fish-house as they found it convenient to do’ so. The pump was used as a common convenience by the neighborhood; and the land thus enclosed was used as a place of common resort for smoking and conversation, and as a place where all might draw up their boats. Held, that such use and occupation, even if continued for twenty-nine years, would not amount to an ouster of the cotenants.</p>

Contract, on an account annexed, for goods sold and delivered on November 18, and December 4, 1882. Answer: 1. A general denial. 2. That, if the goods were sold at all, they were sold to the firm of George J. Raymond and Company, in which, firm the defendant was not a partner, and had no interest.

<p>In an action to recover the balance due on a contract for building a house, the defendant contended that the work was done so unskilfully that the floors had settled. The auditor’s report, introduced by the plaintiff, found this to be the fault of the architect, for which the plaintiff was not responsible. Held, that evidence was properly excluded, that in a house similar to this, planned by the same architect, in which some of the timbers and spans were of the same dimensions and materials as in this, and some different, the timbers had not sagged nor the floors settled.</p> <p>In an action to recover the balance due on a contract for building a house, the defendant contended that the building was not completed at the date stipulated therefor. The auditor’s report, introduced by the plaintiff, found the delay to have been occasioned by extra work done at the defendant’s request. Held, that a question to the architect, whether the extra work “ was of such a character as to render it impossible ” for the plaintiff to complete the building by said date, was properly excluded; the defendant being permitted to show what extra work had been done, and how long it would take to do the same.</p> <p>No exception lies to the rejection of a witness offered as an expert, on the ground that the witness was not qualified as such, if the bill of exceptions fails to state the evidence upon which the decision was made.</p>

Contract, by Harvey Silver and Zeba Gay, against Eben D. Jordan and Charles Marsh, copartners under the firm name of Jordan, Marsh, and Company, and Isaac Hayden, upon an account annexed, to recover $7280.87, principally for making articles of machinery for the defendants. Writ dated December 23, 1867. At October term, 1882, the plaintiffs, of their own motion, discontinued as to Hayden, and the suit proceeded against Jordan and Marsh alone.

<p>In 1874, a lease of a building in a city was made for the term of ten years, the lessee agreeing to pay rent and taxes. The tax-bills were made out to the lessor, and he, in 1875 and 1876, sent them to the lessee, who paid them to the city. In 1877, the lessor agreed orally that, if the lessee would pay rent then due, and thereafter pay rent promptly, he would assume the taxes. The lessor paid the taxes for several years, ending in 1882. Two months after paying the taxes for that year, the lessor notified the lessee that, unless he would renew the lease, he would be called upon for the taxes of that year. The lessee refused to renew the lease. Held, that these facts constituted no defence to an action by the lessor against the lessee for the amount of. the taxes of 1882.</p>

Contract to recover back a betterment assessment, assessed upon land of the plaintiff by the selectmen of Brighton, before the annexation of that town to the city of Boston, for the widening and alteration of Market Street, and paid by the plaintiff under protest. Trial in the Superior Court, without a jury, before Pitman, J., who found for the defendant. The plaintiff alleged exceptions, which appear in the opinion.

<p>Before the St. of 1884, c. 380, providing for service of process upon a foreign corporation having its usual place of business in this Commonwealth, a foreign corporation was sued here, its property was attached, and an attested copy of the writ left with its treasurer. Held, that the cause was not so “commenced by the service of process,” within the Pub. Sts. c. 169, § 25, that the plaintiff could take a deposition by serving notice of the taking of the same upon the treasurer of the corporation.</p>

The record showed an item for service of writ, $5.86, which included a charge of $3, for “ custody and keeping; ” also $1, for a “ commission,” and $10, for “ commissioner’s fee; ” and a certificate of the clerk that the last was taxed according to an affidavit of the plaintiff’s counsel that he paid the same, the commissioner not returning any fees.

<p>If a bankrupt debtor orally promises to pay a creditor’s debt in full, if the creditor will sign an assent to his discharge and enable him to obtain it, and the debtor, after having thus obtained his discharge, gives, in execution of his oral promise, a written promise to pay the debt, no action can be maintained thereon.</p>

Contract, to recover $102.71, upon the following instrument in writing, signed by the defendants and indorsed on a lease of a house in Boston, executed by the plaintiff as lessor and by A. L. Baker as lessee: “Boston, November 1, 1881.

<p>An action cannot be maintained against an administrator for the expense of a monument erected over the grave of his intestate by a third person, at the request of the widow of the intestate; and the St. of 1878, c. 228, does not apply.</p>

<p>Several railroad corporations having connecting lines between B. and C. formed an association, under a specified name, for the transportation of goods between those places. An agent was appointed in B., with authority to receive goods there and to give a bill of lading for their transportation. This bill of lading did not mention the names of the several corporations, but only the name of the association. Held, that the corporations were liable jointly and severally for the loss of goods received by their agent for transportation.</p> <p>Several railroad corporations having connecting roads between B. and C. formed an association called the Despatch Company, for carrying goods between those places. Their agent issued a bill of lading, acknowledging the receipt of goods to be carried by the E. Railroad, and thence by the Despatch Company to C., and there to be delivered to the agents of connecting steamboat or railroad company, and by them to be delivered to the next connecting steamboat or railroad company, until said goods shall reach the point of destination. The bill of lading further provided, that the Despatch Company should not be liable for certain risks; and that, in case of loss whereby any legal liability might be incurred, “ that company shall alone be held answerable therefor in whose actual custody the same may be at the time of the happening thereof; ” and that, in case of loss “ for which either of said companies may be liable, it is agreed that said company shall have the benefit of any insurance effected by or for account of the owner of said goods.” Held, that for a loss occurring between B. and C. the owner of the goods could maintain an action against all the corporations forming the association.</p>

<p>The fact that a woman, sixty years old and weighing about two hundred pounds, noticed, before attempting to ascend an accumulation of snow and ice upon a street crosswalk, that it was very rough and slippery, and that to reach a safe foothold on the sidewalk she must step nearly two feet over a ditch and glare ice, is not conclusive evidence, in an action by her against the city for an injury resulting from such defect, that she was not in the exercise of due care in attempting to cross.</p>

Tort. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows: One Henkle had recovered judgment against the plaintiff for a defect in a sidewalk in Boston, caused by a coal-hole cover. The plaintiff sought in this action to recover of the defendant the amount of said judgment, on the ground that the coal-hole belonged to a house owned by the defendant.

<p>Contract for breach of warranty in the sale of a piano. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows ;</p> <p>At the time of the alleged contract the defendants were engaged in the manufacture of pianos, and the plaintiff was a dealer in pianos, both parties carrying on their business in Boston. On January 6, 1883, the plaintiff ordered a piano of the defendants, who, at the time of taking the order, knew that he intended to offer the same for sale in his warerooms. There was evidence that, soon after the piano was delivered to him, the rosewood with which the case was veneered began to check, and that, by reason of the checking, which he contended was due to poor workmanship and the use of poor materials, the piano could not be sold, in the usual course of business, except at a reduced price. The case was not made by the defendants, but was made and veneered by a manufacturer of piano cases, by whom it was sold to the defendants, and the defendants at the time of the sale to the plaintiff had no knowledge of the alleged defect; and it was not contended that in making the sale there was any fraud on their part.</p> <p>The plaintiff contended that the piano was sold to him with an express warranty; and, further, that, if the jury found there was no express warranty, he was entitled to maintain this action on the ground of an implied warranty, and asked the judge to instruct the jury as follows :</p> <p>“ 1. Where a person manufactures an article and sells it for a particular purpose, the law implies a warranty that it is fit and proper for that purpose ; and there is no exception as to latent undiscoverable defects. 2. Where a manufacturer undertakes to supply goods manufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article; and there is also an implied warranty by the vendor, as the manufacturer, against such defects as are not apparent by inspection. 3. If a man buys an article for a particular purpose, made known to the seller at the time of the contract, and relies upon the skill or judgment of'the seller to supply what is wanted, there is an implied warranty that the thing sold will be fit for the desired purpose. 4. If a man sells generally, he undertakes that the article sold is fit for some purpose ; if he sells it for a particular purpose, he undertakes that it shall be fit for that particular purpose. Therefore, if the defendants sold the piano in question to the plaintiff as a dealer in such instruments, and to be by him offered for sale, there was an undertaking on the part of the defendants to furnish the plaintiff such a piano as could be properly sold to the public in the ordinary course of trade; and if the defendants undertook to furnish a first-class piano to the plaintiff, then they must be held to furnish such an instrument as the plaintiff could properly offer and sell to the public as a first-class piano ; and if the piano in question was not such a one as the defendants were bound to give the plaintiff, then there was a breach of warranty, for which the defendants are liable.”</p> <p>The judge declined to give any of the foregoing requests for rulings, but, among other instructions which were not excepted to, instructed the jury that, in the absence of any express warranty, there was no implied warranty as to the quality of the piano, and the defendants were only bound to furnish an instrument which was merchantable and salable as a piano, and which might be sold at some price as a piano.</p> <p>The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>In an action by a seaman against the owner of a vessel, for injuries resulting from the failure of the master of the vessel, after the leg of the seaman was fractured, seasonably to put him ashore, where he could have proper surgical assistance, it appeared that, a few hours after the accident, the vessel was within an hour’s sail of a place where such assistance could have been procured, and that the master kept him on board two days, and until the port of destination was reached. The judge refused to instruct the jury, as requested by the defendant, that, if the master believed that the delay in taking the seaman to the port of destination would not be serious, nor involve any serious result, the master was not in fault; and instructed them that they were to consider the condition of the plaintiff, the situation of the master, the ease with which he might reach another port, the probability of finding medical attendance, and all the other circumstances, and to determine whether the plaintiff had sustained the burden of showing that the decision of the master was otherwise than reasonable and proper. Held, that the defendant had no ground of exception.</p> <p>A seaman’s leg was fractured at sea by a cause for which the owner of the vessel was not responsible. In an action by him against such owner, for injuries resulting from the neglect of the master of the vessel in not seasonably putting him on shore, there was evidence of the following facts: After the leg was broken, the master bound it up too tightly, so that the circulation was impaired, A few hours after the injury, the vessel was within a few miles of a port, to which it could have readily gone, where surgical assistance could have been obtained, but the master proceeded to his port of destination, arriving there two days afterwards. During this time, the seaman was kept in a warm place, and no medicine or opiate was furnished him; and, on his arrival at the port of destination, erysipelas was found to have set in, the leg showed signs of improper treatment; it was swollen, and was black and smelt badly, and a splint could not be applied for four weeks. There were indications of gangrene, a discharge of pus, an abscess, and a high fever. A person usually recovers from such a fracture in eight weeks. The bones of the leg in this case were not united after nineteen months. Delay in setting and in surgical treatment causes the fractured ends of the bones so to injure the soft parts as materially to retard the healing, and lessen the chances of recovery. Held, that a ruling requested, that there was no evidence distinguishing the injury caused by the fracture and that by the delay in treating it, was properly refused.</p> <p>In an action by a seaman against the owner of a vessel, for injuries resulting from the failure of the master of the vessel, after the seaman’s leg was fractured, seasonably to put him ashore, there was evidence that, after nineteen months in hospitals, and after several operations, the bones of the leg had not united, and that, in the opinion of an expert, the man would always be lame. Held, that a ruling requested, that there was no evidence that the plaintiff was crippled for life, was properly refused.</p>

<p>Petition for a writ of certiorari to quash an order of the board of aldermen of the city of Boston, approved on August 19, 1874, assessing the petitioner a proportional part of the expense of constructing a sewer between Dudley Street and Quincy Street, in that part of Boston formerly Dorchester. The case was reserved by JDevens, J., for the consideration of the full court, and appears in the opinion.</p>

<p>A. shipped a cargo of sugar to B., and gave him authority to sell the same. The bill of lading recited that the shipment was by order of B., and that the sugar was deliverable to his order, and made no mention of any agency. B. indorsed the bill of lading, and delivered it to a bank of which he was a director, and pledged the cargo to the bank as security for a loan by the bank to him. This loan was approved by the board of directors, at a meeting at which B. was present. Held, that B.’s knowledge of the fraud was not imputable to the bank; and that an action by A. against the bank, for the conversion of the sugar, could not be maintained.</p>

<p>In an action against a city for personal injuries occasioned by an accumulation of ice and snow upon a sidewalk, a witness for the plaintiff, who had testified as to the character of the defect at the time of the accident; was asked, “ How long had the walk been in substantially that condition prior to that time, if you know 1" Held, that the defendant had no ground of exception.</p> <p>If a private way in a city is opened and dedicated to the public use, within the meaning of the Pub. Sts. c. 49, § 94, the city is not, under § 95, liable for an injury caused to a person by a defect therein, if it has posted a conspicuous and legible notice, at the point where the person entered the street, that the way is private and dangerous, whether the notice was seen or not.</p>

<p>The St. of 1882, c. 93, authorizing a certain town to pay bounties to soldiers who reenlisted in a certain regiment in 1864, and were credited to the town, is unconstitutional.</p> <p>A town cannot raise money by taxation to pay the expense of a committee directed by a vote of a town to procure from the Legislature the passage of an act, which act, when passed, is unconstitutional.</p> <p>A town, in November, 1881, voted to appoint a committee to appear before the Legislature and procure certain legislation desired, with authority to employ counsel. The legislation was procured, and the town voted, in September, 1882, to pay the bill of the committee. Three days afterwards, a petition was filed, under the Pub. Sts. c. 27, § 129, to restrain the town from paying the bill. Held, that the petition was seasonably filed.</p>

<p>A debtor, after his discharge in insolvency, wrote to his creditor expressing his desire to pay all his debts, and his hope and trust that he would be able to pay the debt of his creditor in the future, mentioning partial payments made, and regretting that he could not do more. Held, insufficient to prevent the operation of his discharge.</p>

<p>If a bill in equity for specific performance contains also a prayer, in the alternative, for damages, and a decree is entered for specific performance, which is not appealed from, and the case is sent to a master to state an account, it is too late afterwards to move for a decree for damages, where there is no disability on the part of the defendant to perform the contract.</p> <p>A bond was conditioned for a conveyance of certain parcels of land on the obligee paying $5000 within five years, with interest from the date of the bond at eight per cent semiannually, and all sums expended by the obligor in making improvements or removing incumbrances, with like interest from the dates of the several payments. Held, on a bill in equity, by the obligee against the obligor, for specific performance of the agreement, that the defendant was chargeable with rents and profits after a sufficient tender was made, but was not chargeable for rents and profits accruing before the tender. Held, also, that the defendant was properly allowed for the expense of pulling down a building for the purpose of making an improvement, although the building was not rebuilt, on account of the tender being made. Held, also, that the defendant was properly allowed the cost of getting a release of dower from the obligor’s grantor, it being an incumbrance on the land. Held, also, that, as the defendant’s refusal to accept the tender was owing merely to a denial of the authority of the person who made the tender, the defendant was entitled to interest on the amount due, from the time of the tender to the date of the filing of the bill in equity.</p>

<p>A will provided that the testator’s son should, for the space of ten years from the time of receiving the same, have the use of a certain legacy bequeathed to the testator by his sister, the son paying a certain rate of interest, “principal and interest to be repaid to my estate at the end of said ten years.” In other places in the will this was spoken of as a loan to the son. The son was appointed executor of the will. In 1869, the son received the sum bequeathed by his father’s sister, and died in 1870. In 1873, the executor of the son filed an account of the son as executor, in the Probate Court, showing a balance due by the son to his father’s estate, and a statement that this balance was the principal sum of the legacy. This account was allowed by the Probate Court. Held, in an action, brought in 1880, in the name of the judge of probate, by an administrator de bonis non, with the will annexed, of the father’s estate, against a surety upon the bond given by the son as executor, that the son took the legacy to his father as a loan, which was not due at the time of his death. Held, also, that the account filed in 1873, and the action of the court thereon, did not estop the defendant from showing that the sum stated to be the balance of the account was a loan to the son under the will.</p>

<p>Under the Pub. Sts. c. 116, § 36, the judge of a probate court may authorize an executor, who holds money under a will for the purpose of keeping a cemetery lot of the testator and the fences thereon in suitable condition, to deposit such money in a savings bank, in perpetual trust, to the uses mentioned in the will.</p>

Contract, against Charles S. Whitmore, George B. Brown, and John Johnson, executor of the will of Othello O. Johnson, on a probate bond, dated May 22, 1877, and executed by Whit-more as principal, and by Brown and Othello O. Johnson as sureties, in the sum of $40,000, and conditioned for the faithful performance by the principal of the duties of trustee under the will of Dexter Stone.

<p>Appeal, by the surviving executor of the estate of Benjamin E. Bates, from a decree of the Probate Court, made on January 2, 1883, on the petition of the administrator of the estate of William W. Bowers, filed November 8, 1882, ordering the said surviving executor to pay to the petitioner interest at the rate of seven and a half per cent on $12,000, from November 1,1877, to April 5, 1881.</p> <p>The case was heard by O. Allen, J., and reserved for the consideration of the full court, upon the following agreed facts:</p> <p>The estate of said Bates having been represented insolvent, commissioners were appointed, who allowed the claim of the petitioner, as such administrator, for $12,184.93. This claim was founded on a note bearing interest at seven and one half per cent, upon which $12,000 of the principal was due on November 1,1877. The sum allowed by the commissioners was made up by computing interest on $12,000 at seven and one half per cent from November 1, 1877, to January 14, 1878, the time of the death of Bates. On October 28, 1880, pursuant to the order of the Probate Court, the executors paid the petitioner $6092.46, being fifty per cent of the sum allowed.</p> <p>On April 5, 1881, upon the petition of creditors representing that the estate was solvent, the court ordered “ that said executors set aside such sum as shall be sufficient to pay all the disputed claims against them, and to convert so much of the property of said estate into money as shall be sufficient to pay a second and final dividend of fifty per cent upon the claims which have been allowed against said estate, and from which allowance no appeal has been taken and is now pending, with interest on said claims, and that said executors pay such final dividend and interest on the first day of June, 1881.”</p> <p>On June 1, 1881, the executors paid the petitioner $6092.46, being the remaining half of the principal of the claim allowed, and the additional sum of $2254.20, being interest at six per cent from January 14, 1878, to the times of payment on $12,184.93.</p> <p>The estate is solvent, and the executors have in hand assets sufficient for the payment of the petitioner’s claim, and all other claims proved against the estate.</p> <p>If the petitioner was entitled to interest in addition to the amount already paid, and if it was competent for the judge of probate to allow the same on the petition now pending, the decree appealed from was to be amended, and judgment entered for the sum of $519.62, being interest at seven and a half per cent on $12,000 from November 1, 1877, to the times of payment, less the interest already received.</p>

<p>Contract, on an account annexed, for money paid, to the amount of $549.63, for duties, freight, custom-house charges, and labor and money expended upon a certain fluting machine ordered of the defendant by the plaintiff, and delivered to the plaintiff; with a count for a breach of warranty in not furnishing the machine which the defendant warranted and guaranteed to furnish.</p> <p>The answer contained a general denial, and a special denial of any breach of contract. The defendant also filed a declaration in set-off, for the price of the machine and interest, amounting to $944.15.</p> <p>Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff relied upon the order for the machine, and its acceptance by the defendant, together with statements and representations by the defendant to the plaintiff before the machine was ordered. The order and the acceptance were in writing, and were as follows:</p> <p>“Lowell, Mass., July 9, 1881.</p> <p>“ Mr. R. N. Cottrel, Dobroyd. House, Bolton, England, now at Montreal, Canada.</p> <p>“ Dear Sir: You will please make for us one of your latest improved eight-tool fluting machines, so arranged as to flute both card and spinning rolls. The price of the same to be £175 (one hundred and seventy-five pounds), boxed, and delivered free on board at Liverpool. The above price to include one full set of working tools and index gears necessary to cut the above-mentioned rolls.</p> <p>“We are in great want of the above machine, and trust you will push it forward without delay, and let us have it sure in the two months after receipt of order as promised. Please acknowledge receipt of this and oblige,</p> <p>“ Very truly yours,</p> <p>“A. T. Atherton, Treasurer.</p> <p>“ Montreal, July 28, 1881.</p> <p>“Dear Sir: I am extremely obliged for your order for the fluting machine which came to hand yesterday. It shall be packed and delivered in Liverpool complete, with one set of eight tools and one set of eight index plates, price £175 net. You may rely upon having a first-rate machine, which will do your work in a satisfactory manner; it shall be put in hand at once and forwarded as soon as ever possible.</p> <p>“ Yours very truly,</p> <p>“ Robt. N. Cottrel.”</p> <p>The plaintiff introduced evidence tending to show that the machine failed entirely to do the plaintiff’s work, namely, to flute eight-card feed rolls at one time.</p> <p>It appeared that the plaintiff made some alterations and changes in the machine in the attempt to make it do his work. The plaintiff introduced evidence tending to show that these alterations and changes were an improvement and benefit to the machine, and increased its facility to do his work, but that the machine still failed to do it.</p> <p>The defendant asked the judge to instruct the jury as follows:</p> <p>“ 1. The contract between the parties being in writing, expressed in the order for the fluting machine, sent by the plaintiff’s treasurer on July 9, 1881, and accepted by the defendant in his reply of July 28, 1881, no paroi evidence of conversations between the plaintiff’s agent and the defendant is admissible to control or modify the terms of said written order; it being agreed by the parties that the defendant literally complied with the written order, by delivering on board ship, in the harbor of Liverpool, in good order and condition, the machine and appliances called for by the terms of said written order, to wit, one of his latest improved eight-tool fluting machines, so arranged as to flute both card and spinning rolls, such as are used in England.</p> <p>“2. The language of the defendant’s letter containing his acceptance of the order expresses no warranty that the machine would flute the plaintiff’s card rolls. The acceptance was completed, and the contract effected, in the first paragraph of defendant’s letter of July 28. The words following the acceptance, ‘ You may rely upon having a first-rate machine, which will do your work in a satisfactory manner,’ do not constitute a warranty, and formed no part of the inducement to the purchaser, for they are subsequent to the completion of the contract, and are gratuitous and without consideration.</p> <p>“ 3. If the conversation between the defendant and the plaintiff’s superintendent in its shop, prior to the date of the order, is admitted in evidence, as affecting the contract, unless the jury are satisfied that the defendant fully understood that the plaintiff’s rolls differed materially from the English rolls, and, so understanding, agreed to make the machine specially adapted to flute the plaintiff’s rolls, then no agreement was implied in accepting the plaintiff’s order that the machine should meet these differences. In this particular the minds of the parties did not concur and meet.</p> <p>“ 4. If the court or jury shall find a breach of warranty by the defendant in the sale of the machine, yet, the contract not being legally rescinded by the plaintiff, the measure of damages recoverable by the plaintiff for such breach of warranty is not the amount of outlays by the plaintiff for custom dues, freight charges, or alterations upon the machine, but the measure of damages fixed by law is the difference in value at the point of delivery of the machine, namely, at Liverpool, between the contract price (that being the only evidence of value) and the actual market value of the machine as furnished by the defendant.”</p> <p>The judge declined to give any of these requests for instructions as prayed for, but admitted evidence of paroi conversations between the defendant and the plaintiff’s agent prior to the date of said written order; and instructed the jury that they might consider said conversations in ascertaining the real contract between the parties.</p> <p>The judge further instructed the jury, that, there having been no legal rescission of the contract by the plaintiff, if the jury should find a breach of warranty by the defendant in the sale of the machine, then the measure of the damages recoverable by the plaintiff is the difference between the contract price (if there is no other evidence of value) of the machine as made and delivered, and its value now where it is; and in computing such damages the jury might ascertain what the plaintiff had already expended in material and labor in an honest endeavor to make the machine flute the plaintiff’s card rolls, and also what the plaintiff would be obliged to expend to effect that result.</p> <p>Other instructions were given by the presiding justice, which were not objected to by the defendant.</p> <p>The jury returned a verdict for the defendant in the sum of $292.26; and the defendant alleged exceptions to the refusal to rule as requested, and to the instructions given, which are set out above.</p>

<p>The St. of 1881, c. 172, incorporating a part of the territory of a town into a new town, provided, in § 6, that “ the annual excess, if any, of maintaining the public schools ” in the part remaining after the division, over and above the expense of maintaining the public schools in the new town, should be ascertained “ on the basis of the average number of scholars in the public schools of legal school age” for the preceding year; and the new town should pay of such excess in the proportion which its valuation, in the preceding year, bore to the valuation of the part remaining in the old town; and that the new town should pay to the old town “ a sum of money, the annual interest of which, at five per cent, shall equal in amount the part of such excess.” Held, that “the average number of scholars in the public schools ” meant the average membership of the public schools, as shown by the school register, and not the average attendance. Held, also, that “ of legal school age ” included all members of the public schools under twenty-one years .of age. Held, also, that the grades of the schools in the two towns could not be- taken into consideration. Held, also, that interest on the cost of the school-houses could not be included in estimating the expense of maintaining the schools for the preceding year. Held, also, that interest, on the amount the new town was to pay the old, did not begin to run until the final decree on a petition, provided for by the statute, for commissioners to determine the amount to be paid.</p>

<p>Libel for divorce, on the ground of desertion, filed January 16, 1884, and brought by an insane person, by her guardian. The libel alleged the time of desertion to be on or about January 15, 1876, and that the desertion had continued from that time to the filing of the libel. Service was made by publication, but the libellee did not appear.</p> <p>At the hearing, before Devens, J., the libellant did not appear as a witness, her physicians having advised that, on account of her mental condition, she should not be brought into court to testify. The sisters of the libellee were represented by counsel, who was allowed to act as amicus curice.</p> <p>The evidence introduced by the libellant tended to prove the following facts:</p> <p>The parties were married on November 29, 1875, and lived together, about six weeks at Brookline, Massachusetts, at the house of the libellant’s father, the libellee not contributing in any way towards her support. The libellee then disappeared, and has never returned. He gave no notice of his intention to leave his wife, and no reason or explanation of his so doing, and has never since attempted to see or communicate with her in any way, and has contributed nothing in any way towards her support. Until within the last two months she has lived in Brookline with her father and brother, and very near to the residence of the libellee’s sisters. Several times within the last seven years the libellee has been in Brookline or the adjoining towns, but has never been seen by the libellant or by her relatives. The libellant, upon her father’s death in 1882, inherited considerable property. After the husband’s disappearance, the wife’s reason and understanding began to fail, and she was placed under guardianship as an insane person, by a decree of the Probate Court for Norfolk county, on May 2, 1883. After the husband’s disappearance, she resided with her father until his death, in December, 1882. The mental condition of the libellant is now such that she has no rational or settled wishes or opinions, and cannot think or converse clearly or correctly on any subject. Before his death, the father of the libellant took some action in the libellant’s behalf towards obtaining a divorce, and the present proceedings are brought with the approval and at the request of the brother and sister of the libellant, who are her nearest of kin, except a half-brother who is under guardianship as an insane person; and, while they deemed their sister to have been cruelly treated by the libellee, their principal reason for desiring the divorce was, that any claim on the estate of the wife by the libellee, as husband, should she decease, might be cut off thereby.</p> <p>The judge, being in doubt whether the court should grant a divorce upon the above facts, reported the case for the decision of the full court. If, in the opinion of the court, the above facts would, if proved, be sufficient to entitle" her to a divorce, a decree of divorce was to be entered in favor of the libellant, on account of the libellee’s desertion; otherwise, the libel to be dismissed without prejudice.</p>

<p>In an action on a promissory note, there was evidence that the payee had a claim against the maker’s wife, of whose estate the maker was administrator and sole distributee; that the note was given in settlement of this claim; and that the payee forbore to prosecute her claim for services until it was barred by the statute of limitations. Held, that there was sufficient evidence of consideration.</p> <p>If A. makes a claim upon B., and B. delivers his promissory note to A., and by his words or acts induces A. reasonably to understand that it is delivered in settlement of the claim, it is no defence to an action on the note that B. secretly intended it as a gift.</p>

<p>In empanelling the jury for the trial of a criminal cause, the clerk drew and called the name of a juror; but through misapprehension of the name, both by the juror called and by another person, who was in attendance as a juror, duly summoned and qualified, the latter took his seat on the jury, was sworn, and served during the trial. Held, that the defendant, if not injured by the mistake, was not, of right, entitled to a new trial.</p>

<p>An indictment on the Pub. Sts. c. 207, § 15, for publishing a paper containing obscene language, must, at least by some general description, identify the paper.</p>

<p>The laying out of a sewer is not invalidated by the fact that the vote of the selectmen of the town laying it out was not recorded until seven months after the vote was passed, and after the sewer had been constructed, the selectmen who passed the vote having continued in office and had the custody of the records. That the size of a sewer as laid out varies two inches in diameter from that shown on the plan referred to in the vote of the selectmen of a town is immaterial, upon the question of the validity of an assessment made on a landowner for the cost of the construction of the sewer.</p> <p>It is no objection to the validity of an assessment made upon a landowner, for the cost of the construction of a sewer, that, when the sewer was laid out, the town had not adopted any system of sewerage, although it was then authorized by statute to do so, if such system was adopted before the assessment was made. The provisions in the Pub. Sts. c. 50, § 7, giving cities and towns the right to adopt a system of sewerage for a part or the whole of its territory, and to provide that assessments under § 4 shall be made upon owners of estates within such territory by a fixed uniform rate, based upon the estimated cost of all the sewers therein, according to the frontage of such estates on any street or way where a sewer is constructed, are not limited to those persons described in § 4, who enter their drains into the sewer, or who, by more remote means, receive benefit thereby.</p> <p>After a town had adopted the system of sewerage provided for in the Pub. Sts. c. 50, § 7, it laid an assessment on the owners of land for their proportional part of the cost of making a sewer in a certain street, “ within that part of its territory to which the system of sewerage adopted by vote of the town ” of a certain date “ applies, based upon the estimated average cost of the sewers therein, according to the number of feet of frontage of their said estates thereon,” at a certain rate per foot of frontage. Held, that it sufficiently appeared that the assessment was laid under this system.</p> <p>A warrant to the collector of taxes of a town, issued and signed by the selectmen, after referring to a copy of an assessment made upon a landowner for the cost of the construction of a sewer, directed the collector to collect it “ according to law,” and did not direct him how to dispose of the money when he received it. There was no informality in the proceedings of the collector under it. Held, that the warrant was valid.</p>

<p>Bill is equity to abate a nuisance. The case was heard, upon bill and demurrer, before Devens, J., who reserved it for the consideration of the full court. The facts appear in the opinion.</p>

Tort for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows: Both parties were employed by one Augustus Chace, the plaintiff as a common laborer, and the defendant as a superintendent.

<p>A testator by his will gave a legacy to each of his children “ who may survive me; ” gave to his wife the income of the remainder of his estate during her life; and then provided as follows: “ After the decease of my said wife, I give, devise, and bequeath all my estate, both real, personal, or mixed, to my children who may then be living, in equal shares, and in case either of them shall have died leaving legal heirs, then such heirs shall be entitled to the share which their deceased father or mother would have been entitled to if living, to hold to them and their respective heirs and assigns forever.” Held, that the testator’s children took a contingent remainder in his real estate.</p>

<p>Contract upon a policy of insurance, dated January 19,1882, against perils of the seas, whereby the defendant insured the plaintiffs, “ lost or not lost, five hundred dollars on advances on board the schooner Madame Roland, free from claim for particular and (or) general áverage.”</p> <p>Trial in the Superior Court, before Mason, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The policy put in evidence showed that the words “ advances on board the schooner ” were written in place of the printed words “ outfits, catch, cargo, or the freight on said cargo,” which were struck out. The policy was issued to the plaintiffs by George Steele, the local agent of the defendant at Gloucester. Steele had authority to take risks and to countersign and issue policies, which were furnished him by the defendant, signed by its president and secretary. Steele was also the president of the Gloucester Mutual Fishing Insurance Company. The plaintiffs testified that the policy in suit was issued by him under the circumstances following: The plaintiffs were owners of the fishing schooner Madame Roland, which vessel they had recently bought of Steele, who was largely engaged in the fishing business in Gloucester; and which they equipped for and employed in the hand-line cod fishery. They had insured this vessel and her outfits in the above-named Gloucester company; and they had, as they supposed, all the insurance they could have on the vessel and on the outfits in that company. Some time after the policy was issued, Steele came to the plaintiffs’ place of business in Gloucester, and told them that they were not sufficiently covered on their vessel, and ought to have more in case of total loss; that he could write $500 in the Boston Marine Insurance Company for them; they asked him how he was going to write it, and he said, “ I shall not call it ‘ outfits.’ I shall call it ‘ advances ’; and it will be all right.” He then showed them a list of persons in Gloucester for whom he had written policies in that way; after some talk, they agreed that he should do it, and after a few days he sent them the policy in suit. All the evidence as to conversations between Steele and the plaintiffs was introduced against the objection of the defendant.</p> <p>The plaintiffs also testified, that the schooner was making fishing trips from Gloucester to Georges Bank, the trips varying in length from two or three weeks in spring to five or six weeks in summer; that her crew consisted of a captain and nine men, who did not receive wages, but took shares of the catch instead; that each trip was settled by itself; and that the mode of settle^ ment was, to divide the proceeds of the whole catch (which came into the plaintiffs’ hands, and was sold by them) into two equal parts, first deducting from the whole the amount expended in bait and ice for the trip, and to assign one part to themselves as owners, and the other to the crew; to deduct from the crew’s share the amounts expended for milk, towage, scrubbing vessel, medicine chest, wood, and water; and then to divide the balance of the crew’s share among the members of the crew in proportion to the quantity of fish caught by each man. If any sums had been advanced by the owners to any member of the crew before or» during the trip, such amount was deducted from his individual share before paying it over to him.</p> <p>They also testified, that on or about July 19,1882, the schooner left Gloucester upon one of these trips; that it was to be one of the longer trips, for which more stores were taken than for the shorter ones; and that they had on board the vessel when she started upon this trip provisions worth $175.66, stoves, kitchen furniture, and tin ware worth $146.74, lines, hooks, and other fishing gear and tools worth $128.95; also ballast, ice, salt, casks, and other articles of outfit worth $375.75. They also testified that they furnished the captain with $100 in bills to buy bait. The defendant objected to the above testimony as to what was on board the schooner, on the ground that it was not evidence of any advances on board her.</p> <p>They also testified, that, prior to the sailing of the schooner on this trip, they had advanced certain sums to the different members of the crew, amounting in all to $60.14; which sums were to be repaid by the men to whom they were made out of their respective shares of the proceeds of this trip when the same should come to be settled as above.</p> <p>The plaintiffs called one Gore, an average adjuster of large experience in Boston, who testified that the word “ advances ” had not a fixed and definite meaning, of itself, in the business of insurance, but that its meaning depended upon the circumstances under which it was used, and that it was sometimes used to describe an interest which could not be otherwise described; that under the circumstances of this case the word “ advances ” might apply to any pecuniary interest in anything put on board the vessel; that he had examined the lists of articles which were put on board this schooner, and that everything on those lists might properly be insured as “ advances.” The evidence of this witness was admitted, against the defendant’s objection. On cross-examination, he testified that “ outfits ” would be a better word than “ advances ” to describe the articles on board the schooner; that, if insuring them himself, he should so describe them; that he could see no reason for striking out the printed word “ outfits ” in the policy, and writing in “ advances on board,” if outfits were to be insured thereunder; that the word “ advances ” meant commonly “ advances to crew,” or “ advances on account of freight; ” and that it had been used in one of these meanings in the larger portion of those policies in which he had known it to be used.</p> <p>The plaintiffs further testified, that, on or about August 8, 1882, they received the following telegram from the- captain of the schooner: “ S. W. Harbor, Maine, Aug. 9, 1882. Sch. Madame Roland run ashore Black Island, near Mount Desert, three o’clock this A. M. Total loss. Send instructions; ” — that they immediately handed this telegram to Steele, and told .him that they considered the vessel as abandoned and on his hands; that Steele thereupon asked leave to append their names to a telegram to the master, and they assented; that they never took charge of the vessel again, gave no further orders respecting her, and did not of their own knowledge know what was done with her, though they had since seen her at Gloucester.</p> <p>The plaintiffs called one Margeson, who testified that he was sent to Black Island by Steele to bring the vessel to Gloucester; that he found her on the rocks, bilged, with her cabin and forecastle partially washed away; that on his arrival at the vessel some things had been taken out of her and put on the island, namely, some cable, and some of the sails, blocks, and rigging of the vessel; that there were some other articles on shore, but he could not remember what, except that there was a broken stove, and possibly a firkin and some tin pans, but they were of no value; that the fish taken during the trip were also on shore in a damaged condition, but he could not remember how many fish there were, nor how much they were damaged; that he chartered a small vessel to take the cable, sails, and rigging, and the other articles taken from the vessel, and the fish, to Bass Harbor, where he sold the fish by auction, and accounted for the money to the Gloucester Insurance Company; that he could not tell the exact amount received by him, but that his recollection was that the fish sold for only about enough to pay the freight from Black Island to Bass Harbor; that the schooner was afterwards got off and brought to Bass Harbor, where the sails, cable, rigging, and other articles were put on board, and taken in her to Gloucester; that, on arrival there, the cable, sails, rigging, and other articles, were put into the plaintiffs’ warehouse at the request of Steele, where they remained until delivered upon the order of the Gloucester Insurance Company.</p> <p>The plaintiffs also called Peter Manning, one of the crew of the schooner on this trip, who testified that, before she ran ashore, the captain had put into Shelburne, ISTova Scotia, and bought 18,000 herring there, but that nothing had been put ashore from the schooner at that place; that up to the time she ran ashore they had taken from ten to fifteen thousand pounds of fish, all of which were saved in a damaged condition.</p> <p>The plaintiffs testified, that a fair price for the herring bought for bait, at that time, was fifty cents a hundred; that the fish on board were worth from $3 to $3.50 a hundred pounds; that they had never received any money on account of them, and did not know of their own knowledge what was done with them or with any money received for them; that they did not know where the captain was, but thought he had sailed from Gloucester since then; that, since the loss of the schooner, one of them had never seen him at all, and the other only once, and then not to speak with him; and that they had never asked him for any account of the fish or any money received for them, or about anything saved from the vessel. They also testified that on September 7, 1882, they delivered to Steele a letter signed by them, of which the following is a copy: “ Gloucester, Mass., Sept. 7,1882. To the President and Directors of the Gloucester Mutual Fishing Insurance Company: Gentlemen, We hereby give you notice, that we abandon to your office the sch. Madame Roland, insured under your policy No. 187; ” and also at the same time another letter exactly like this, except as to the number of the policy referred to, and except that it was addressed to Steele as agent of the Boston Marine Insurance Company.</p> <p>The above was in substance all the evidence introduced by the plaintiffs. The defendant introduced no evidence, but asked the judge to rule that, upon the evidence above reported, or so much of it as is lawfully admissible, the plaintiffs could recover nothing in this action. The judge refused so to rule, but ruled that the plaintiffs could not recover under this policy for loss of outfits, but that they might recover only for the amount of advances to crew ($60.14), and the amount furnished the captain to buy bait ($100) ; that these two interests were covered by the policy, and that there was evidence which would justify the jury in finding that they were totally lost. To these rulings the plaintiffs and the defendant excepted. A verdict was then taken for the plaintiffs by consent, under these rulings, for $160.14, with interest from the date of the writ.</p> <p>If these rulings were right as to the amount advanced the crew, or as to the amount furnished to buy bait, or as to both, judgment was to be entered for $60.14, or for $100, or for $160.14, accordingly, with interest from the date of the writ, provided that the ruling as to outfits was also right. If the last-mentioned ruling was wrong, there was to be a new trial.</p>

<p>Exceptions to the rulings of a master, to whom a bill in equity for the redemption of land from several mortgages has been referred, upon the allowance or dis-allowance of premiums paid for insurance and charged in the mortgagee’s account, will be overruled, if the provisions of the mortgages relating to the insurance are not before the court.</p> <p>If a mortgagee refuses to accept payment of the mortgage debt, bearing interest at a greater rate than six per cent, when tendered by the mortgagor, except upon compliance with an illegal demand, on a bill in equity to redeem from the mortgage, interest should be allowed the mortgagee only at six per cent from . the time of the tender.</p> <p>The sum paid by a mortgagee, upon taking possession of the premises, for water-rates due from the mortgagor, to prevent the supply of water from being cut off, is properly chargeable to the mortgagor in the mortgagee’s account.</p> <p>In the absence of proof of negligence or want of due diligence on the part of a mortgagee to procure rent for a tenement on the mortgaged premises, he is not chargeable with the same; and the fact that the mortgagee properly put the mortgagor out of the tenement, which thereafter for a time remained unoccupied, is not sufficient to charge the mortgagee with the rent.</p>

<p>Tort. Writ dated October 29, 1883. The declaration as originally filed contained two counts. On May 19, 1884, a demurrer to the declaration was sustained, and no exception or appeal was taken. At the same term, the declaration was amended by adding a third count, and by inserting certain words in the first and second counts. The plaintiff had also leave to amend her writ by adding after the word “ tort ” the words “ or contract, the plaintiff being doubtful to which class of actions this action belongs.”</p> <p>The declaration as amended was as follows:</p> <p>“ 1. And the plaintiff says, that, on or about May 7,1883, she attended, with a large number of others, and whosoever wished and had tickets therefor, a musicians’ ball, at the end of the triennial celebration of the Handel and Haydn Society, in Boston, in said county, and had tickets therefor, and was rightly and properly present on that occasion; and she says that the defendant is by profession a caterer, and holds himself out to the public to be skilled in the preparation and compounding of foods and drinks, and claims to furnish the public with good and wholesome food and drink; and the defendant was employed to cater at said ball for all who might attend the same, whether more or less, if they so desired, and to furnish, for all who might wish, good and wholesome food and drink, and to be paid therefor, by each and every person who partook thereof, the sum of $1.25; and the defendant undertook and agreed to cater and furnish good and wholesome food at said ball, to whomsoever wished, and paid as aforesaid; and defendant did do the catering, and was himself present at said ball, and attended to overlooking and superintending the catering on said occasion, and furnished the attendants and waiters for that purpose, who waited upon and furnished the food and drink called for or eaten by each and every person.</p> <p>“ And the plaintiff says, she, having a lawful right to do so, having a ticket therefor purchased from the defendant, and paid for to the defendant, at the price of $1.25, ate of the food furnished by the defendant on that occasion, and given to her by the defendant or his waiters, and the same was partaken of by the plaintiff, trusting and believing that the same was wholesome and good, and safe to be eaten, and had been properly prepared by the defendant; but the plaintiff says said food was not good and wholesome, and properly prepared, but was improperly and negligently prepared, and was unwholesome, poisonous, dangerous, and unfit to be eaten, and by reason thereof the plaintiff was poisoned and greatly injured, and made very sick, and endured thereby for a long time, even to the present time, great pain and suffering, and was subjected, by reason thereof, to great expense for medical attendance and medicine, and was obliged to have, and did have, nurses to wait upon and attend her in her sickness, and massage treatment; and she further says, by reason thereof, she was not able to attend to her usual and ordinary duties in her profession of music, and was so unable to attend to them for many months, and is still so unable to attend to them, and was lastingly and permanently injured.</p> <p>“ And she further says, that, at the time she was so poisoned and injured, she had made contracts and engagements to sing at concerts and give music lessons, and by reason of said poisoning and sickness she was unable to fulfil her contracts and engagements, and was subjected, by reason thereof, to great pecuniary loss; and she says further, that, by reason thereof, she was obliged to live in a different manner and at a greater expense than she otherwise would have done, not only in having nurses, medicine, and medical attendance, and massage treatment, but to obtain, at a great expense, delicacies she otherwise would not have had to obtain, and to go away to the sea-shore and other places, at great expense, for the recovery of her health.</p> <p>“ 2. And, for a second and further cause of action, the plaintiff says, that, on or about May 7, 1883, a musicians’ ball, at the end of the triennial celebration of the Handel and Haydn Society, was held in Boston; that she attended the same, having a lawful right to do so, with a large number of others, and whoever wished to, and had a ticket therefor; that at said ball refreshments and supper were furnished to all those who wished and had tickets therefor, to wit, supper tickets so called, paid for the same at $1.25 per plate; that the defendant, being a professional caterer, and holding himself out to furnish good and wholesome food and drink, and to be skilled in the preparation of the same, undertook and agreed to do the catering at said ball, and furnish proper, good, and wholesome food and drink for same, to whomsoever wished and had tickets therefor, and paid therefor the sum of $1.25 per plate; and plaintiff says the defendant did the catering at said ball, and was present and superintended the same, and furnished the attendants and waiters therefor, who waited upon and furnished each and every person who wished for food and drink; and defendant furnished tables and chairs and all things necessary to the catering on said occasion. And the plaintiff says that she, having a lawful right to do so, and having a ticket therefor, partook of the food and drink furnished by the defendant on that occasion, trusting and believing that the same was good and wholesome, and fit and suitable to be eaten, and had been properly and carefully prepared by defendant; but the plaintiff says said food and drink were not good and wholesome and properly prepared, but were improperly and negligently prepared, were poisonous, unwholesome, and unfit to be eaten, and, by reason thereof, the plaintiff was poisoned and greatly injured and made very sick, and endured thereby for a long time, even to the present time, great pain and suffering, and was subjected, by reason thereof, to great expense for medical attendance and medicine, and was obliged to have, and did have, nurses to wait upon and attend her in her sickness, and massage treatment; and she further says, by reason thereof, she was unable to attend to her usual and ordinary duties in her profession of music, and was so unable to attend for many months, and is so unable to attend to them, and was lastingly and permanently injured; and she further says, that, at the time she was so poisoned and injured, she had made contracts and engagements to sing at concerts and give music lessons, and by reason of said poisoning and sickness she was unable to fulfil her contracts and engagements, and was subjected, by reason thereof, to great pecuniary loss; and she says further, that, by reason thereof, she was obliged to live in a different manner and at a greater expense than she otherwise would have .done, not only in having nurses, medicines, and medical attendance, and massage treatment, but to obtain, "at great expense, delicacies she would not have had to obtain, and to go away to the sea-shore and other places, at great expense, for the recovery of her health.</p> <p>“ 3. And the plaintiff further says, that, on or about May 7, 1883, she attended, with a large number of others, and whosoever wished, the triennial ball of the Handel and Haydn Society, in Boston, and bad a ticket therefor, and was rightly and properly present on that occasion; and she says that the defendant is by profession a caterer, and holds himself out to the public to be skilled in the preparation and compounding of foods and drinks, and claims to furnish the public with good and wholesome food and drink; and the defendant was employed to cater at said ball for all who might attend the same, if they so desired, and to furnish good and wholesome food and drink, and to be paid therefor at the rate of $1.25 a plate, to all who paid for or were furnished with supper tickets, so called; and the defendant undertook to and did do the catering at said ball, and was himself present, attending to overlooking and superintending the catering, and furnished the attendants and waiters therefor, who waited upon and furnished the food and drink for each and every person who partook thereof; and the defendant furnished all the tables and chairs and other things necessary to do the catering on that occasion.</p> <p>“ And the plaintiff says, that supper tickets, so called, were issued on said occasion at $1.25 each, entitling the holder thereof to the supper and refreshments furnished by the defendant on that occasion; and she says she had, or was furnished with, such a ticket; and the $1.25, so paid for said ticket, was paid over to the defendant, and the defendant, in consideration thereof, undertook to and did furnish plaintiff with food and drink on that occasion, and she ate of the same, trusting and believing that the same was wholesome and good, and safe to be eaten, and had been properly prepared by the defendant; but the plaintiff says that said food and drink were improperly and negligently prepared, and were unwholesome, poisonous, dangerous, and unfit to be eaten; and by reason thereof the plaintiff was poisoned and greatly injured, and made very sick, and endured thereby for a long time, even to the present time, great pain and suffering, and was subjected, by reason thereof, to great expense for medical attendance and medicine, and was obliged to have, and did have, nurses to wait upon and attend her in her sickness, and massage treatment; and she further says, by reason thereof, she was unable to attend to her usual and ordinary duties in her profession of music, and so unable to attend for many months, and is still so unable to attend to them, and was lastingly and permanently injured; and she further says, that, at the time she was so poisoned and injured, she had made contracts and engagements to sing at concerts and give music lessons, and, by reason of said poisoning and sickness, she was unable to fulfil her contracts and engagements, and was subjected, by reason thereof, to great pecuniary loss; and she says further, that, by reason thereof, she was obliged to live in a different manner and at a greater expense than she otherwise would have done, not only in having nurses, medicines, and medical attendance, and massage treatment, but to obtain, at great expense, delicacies she would not otherwise have had to obtain, and to go away to the seashore and other places, at great expense, for the recovery of her health.”</p> <p>The defendant demurred to the declaration, assigning the following reasons therefor: “ 1. The said declaration does not, nor does either count thereof, state a legal cause of action in the manner or with the substantial precision and certainty required by the statutes and by the rules of law and practice in this Cdmmonwealth. («.) Because neither the ticket referred to in the plaintiff’s declaration, nor a copy thereof, nor the legal effect thereof, is set out and made part of the plaintiff’s declaration. (5.) Because divers alleged causes of action are averred, without specifying from which cause the plaintiff’s injury is claimed to have arisen, and for some of which causes as set forth, if not for each and all of them, the defendant is not liable, (c.) Because of repugnancy between the averments in the different counts of the declaration. 2. Counts in contract and counts in tort are improperly joined in the said declaration. 3. Said declaration does not, nor does either count thereof, allege any relation or duty of the defendant to the plaintiff, for the breach of which the plaintiff’s action will lie, nor does the declaration or either count thereof allege any breach of any such relation. 4. Said declaration does not, nor does either count thereof, anywhere aver any wrongful act or omission of duty of the defendant, for which he can be held responsible to the plaintiff. 5. Said declaration does not, nor does either count thereof, allege knowledge on the part of the defendant of any defect in any food or drink alleged to have been supplied by the defendant, or any negligence in the selection of either.”</p> <p>The Superior Court sustained the demurrer, and ordered judgment for the defendant; and the plaintiff appealed to this court.</p>

<p>A. made an assignment of his property, in trust for the benefit of his creditors, to B., which did not require the written assent of the creditors, and which provided that, if A. should be adjudged insolvent, B. should convey the property to the assignee in insolvency. C., a creditor of A., brought an action against him, in which B. was summoned as trustee; and afterwards C. assented verbally to the assignment, and presented his claim, which was allowed by B. at a sum agreed upon between them. Subsequently A. filed a petition in insolvency, and was adjudged an insolvent. Held, that, the assignment being valid, and assented to by C., B. was entitled to be discharged as trustee.</p>

Conteact for the rent of certain rooms in a building in Boston, for the year 1879, under a written lease.

Tort. The amended declaration alleged that the defendant was a common carrier of passengers for hire, with their baggage, and a warehouseman, having charge of such baggage, after the arrival of the same at its place of destination, until called for by passengers; that the plaintiffs delivered two trunks, containing hats, caps, and straw goods, to the defendant, at Gloucester, to be by it transported to Salem, and on their arrival there to be properly warehoused and cared for…

<p>Tort for injuries occasioned by the construction of a dam. across South Bay, in Boston. At the trial in the Superior Court, before Staples, J., the plaintiffs’ evidence tended to show the following facts:</p> <p>At the time of the acts complained of, the plaintiffs were, and have ever since been, the owners in fee of the northerly half of Wales Island and the flats adjacent thereto, situated in said South Bay.</p> <p>At a meeting of the common council of the city of' Boston, held on June 3,1880, the following order was passed: “ Ordered, That the board of health be requested to cause to be abated the nuisance at present existing in the South Bay, east of the New York and New England Railroad, and the expense attending the same to be charged to the appropriation for health.”</p> <p>At a meeting of the board of aldermen of said city, held June 10, 1880, the said order was referred to the committee on health, in concurrence with the vote of said council, passed June 3, aforesaid. At a meeting of said board of aldermen, held July 6, 1880, the eighth annual report of the board of health of the city of Boston, dated May 1, 1880, made as provided in the Public Statutes, was received and sent down; and at a meeting of the common council, held July 8, 1880, said report was placed on file. This report, among other matters referred to, contained the following:</p> <p>“ The flats between Dorchester Avenue and the New York and New England Railroad, near Washington Village, are left bare at low tide, and are a source of very offensive odors. The deposit from sewers, and the unclean filling which takes place more or less each year, add very much to their offensive condition. Each year since complaints have been made, the board of health have added clean gravel to cover the worst part of the nuisance, and with good effect; but to remedy the whole evil would involve an expenditure of money too large for the appropriation of this department. If the whole of those flats above the Norway Iron Works could be kept covered with water to a depth of two feet by means of a dam, we think that all reasonable complaints would subside; but, so far as we have been able to ascertain from good authority, the great cost of the dam and the risk of damage to adjoining structures would not justify us in the attempt. Clean gravel and deep water alone will effectually abate the nuisance which must till then continue to arise from such filthy mud. A plan is now under advisement by the joint committee on health, by which it is hoped that an inexpensive dam can be built from the rear of the Norway Iron Works on Dorchester Avenue to the New York and New England Railroad, and which would keep the flats covered at all times.”</p> <p>At a meeting of the common council of said city, held March 29, 1880, the following petition, signed by Daniel J. Cross and others, was presented: “ To the city council of the city of Boston : We the undersigned respectfully represent that a portion of South Bay, lying between Dorchester Avenue and the New York and New England Railroad, has become an intolerable nuisance; we therefore request your honorable body that you will take immediate action to abate said nuisance by flowage or otherwise.”</p> <p>At a meeting of said common council, held July 12, 1880, said committee on health, to whom was referred the petition of said Cross, reported thereon, that the subject had been duly considered and by them referred to a sub-committee, which had consulted the city engineer, who submitted a statement that a temporary dam as high as grade 5, city base, could be built, which would flood to a depth of two feet, and the estimated cost of which would be $4600; and the committee recommended the passage of the accompanying preamble and order: “Whereas, the board of health has declared a nuisance exists, consisting of offensive flats on the territory between the track of the New York and New England Railroad Company and Dorchester Avenue, which can be abated by the construction of a dam at an estimated cost of $4600, and as the annual appropriation granted to said board does not contemplate such an expenditure, it is hereby ordered, that the committee on finance be directed to furnish the means for the abatement of the aforesaid nuisance.” This report was accepted, and the said order passed by both branches of said city government.</p> <p>At a meeting of the board of aldermen, held July 26,1880, the following report was submitted by the committee of finance of said board: “ South Bay Nuisance. The committee on finance to whom was referred the report of the committee on health, covering an order that this committee furnish the means for the abatement of the nuisance existing on the territory between the track of the New York and New England Railroad and Dorchester Avenue, would respectfully report the accompanying order granting the request: ‘ Ordered, that the auditor of accounts be and he hereby is authorized to transfer from the reserved fund the sum of $4600, and that said sum constitute a special appropriation for the purpose of constructing a temporary dam across South Bay, between the New York and New England Railroad track and Dorchester Avenue, for the abatement of the nuisance on the flats therein located; and that the board of health is hereby authorized to have said temporary dam constructed at an expense not exceeding the sum herein provided.’ ” This order was passed.</p> <p>At a meeting of the common council, held July 29, 1880, said report and order for a transfer of $4600 from the reserved fund for the construction of a temporary dam across South Bay, between the New York and New England Railroad track and Dorchester Avenue, for the abatement of a nuisance, was passed in concurrence.</p> <p>At a meeting of the common council, held September 23,1880, it was ordered that the committee on health be requested to report to the city council why the nuisance existing in the South Bay has not been abated, an order having been passed and the money appropriated for the same, July 29. This order of September 23 was passed by the common council, and by the board of aldermen in concurrence:</p> <p>At a meeting of the board of aldermen, held November 1, 1880, said joint committee on health reported that “ no further action is required on the order to abate a nuisance on South Bay, said nuisance now being abated; ” which report was accepted, and the same was sent down to the common council. At the last-named meeting of the board of aldermen, the committee on health reported on said order of inquiry respecting the nuisance on South Bay flats, “that the cause of delay in abatement of the nuisance was unavoidable. The work is now progressing and will be completed in a few days.” This order was likewise accepted and sent down to said council. At a meeting of said council, held November 4, 1880, both the last-named reports were accepted in concurrence.</p> <p>All of the foregoing orders were duly approved by the mayor of said city. On September 8, 1880, Henry M. Wightman, the city engineer of Boston, presented a petition to the board of harbor commissioners of the Commonwealth, for a license “ for the construction of a temporary dam in the South Bay from the New York and New England Railroad embankment to Wales Island, so called, .... for the purpose of abating a nuisance existing in that portion of the South Bay south of the dam.” Said board thereupon granted the license.</p> <p>On or about September 15, 1880, workmen, acting under the direction of Henry M. Wightman, who was at this time city engineer, constructed the dam in question, in accordance with the license of the harbor commissioners, and the cost of building the dam was paid for out of said appropriation. The easterly portion of said dam was built across the flats, and upon a part of the portion of the island owned by the plaintiffs, by driving piles and pile-sheeting into the flats and island, and with gates in the part known as Pine Island Channel, which adjoined said flats. By reason of the omission properly to ballast said dam, said gates were washed away, and the dam was weakened. After this occurred, a large amount of stones and slag were strewn upon the flats along both sides of said dam, and a quantity of larger stones were put into the space in Pine Island Channel, which was left open by the washing away of the gates. Said dam was not securely built, and the water has since the erection of the dam gradually undermined the same, and is now flowing out in large quantities underneath the dam, and washing away the bottom of the flats of the plaintiffs. By reason of the confinement of the waters of South Bay by said dam, there has been carried away by the rushing of said water by and over the easterly end of said dam, a large portion of the island owned by the plaintiffs; and this washing away might have been prevented by the building of the dam higher at that end of the island. The tide ebbs and flows in South Bay and about said island; and, before the erection of this dam, the plaintiffs used the island for keeping and storing piles and other timber owned by them, partly together and in part separately; and such use has been to a large extent prevented, the approach to the island from the harbor of said city has been obstructed, and the free flow of water about the island has been almost stopped.</p> <p>The nuisance complained of existed on flats in said bay south of the plaintiffs’ flats and away from them, and no nuisance existed on the plaintiffs’ flats.</p> <p>The charter of the city of Boston, St. 1854, o. 448, provides in § 40 as follows: “ All the power and authority now by law vested in the city council, or in the board of mayor and aider-men, relative to the public health, and the quarantine of vessels, shall continue to be vested in the city council, to be carried into execution by the appointment of one or more health commissioners ; or in such other manner as the health, cleanliness, comfort, and order of the city may, in their judgment, require, subject to such alterations as the Legislature may from time to time adopt. The powers and duties above named may be exercised and carried into effect by the city council in any manner which they may prescribe, or through the agency of any persons to whom they may delegate the same, notwithstanding a personal exercise of the same, collectively or individually, is prescribed by previous legislation; and the city council may constitute either branch, or any committee of their number, whether joint or separate, the board of health for all or for particular purposes.”</p> <p>The ordinances of the city of Boston relating to said board of health are as follows :</p> <p>“ Section 1. Of the Ordinances on Health. It shall be the duty of the mayor to be vigilant and active in protecting the public health; to see that the laws and ordinances in relation to the same are enforced; to communicate his views to the board of health or the city council from time to time, as he may deem expedient; and he shall have power to call upon the police and the various city officers to aid him in the performance of these duties.</p> <p>“ Section 2. Committee on Health. There shall be appointed annually in the month of January a joint committee of the city council on the health department, consisting of two aldermen and three councilmen. It shall be the duty of said committee to examine as often as once in each month the records and accounts of the board of health; and also to examine all applications for appropriations for the health department, and report thereon to the city council.”</p> <p>“ Section 5. Board of Health. In the month of November, in the year 1872, or as soon thereafter as may be, the mayor shall appoint, subject to the approval and confirmation of the city council, three persons not members of the city council, who shall constitute the board of health of the city of Boston. The persons so appointed shall enter upon the duties of their office forthwith, etc. The members of said board shall at all times be subject to removal by the mayor for cause. For their services they shall receive such compensation as the city council may from time to time determine.”</p> <p>“ Section 7. The board of health, as hereby constituted, shall have and exercise all the powers vested in, and shall perform all the duties prescribed to, the city council or the board of aider-men as a board of health, under the statutes and ordinances now in force; and shall have power to appoint such subordinate officers, agents, and assistants in addition to those hereinafter designated as they deem necessary, and may fix their compensation and the compensation of the clerk before mentioned, provided that the whole amonnt of such compensation shall not exceed the sum appropriated therefor by the city council.”</p> <p>“ Section 9. The said board of health shall annually, in the month of May or June, present to the city council a report made up to and including the thirtieth day of the preceding April, containing a full and comprehensive statement of the acts of the board during the year, and a review of the sanitary condition of the city.”</p> <p>The ordinances and votes of said city relating to the office of said city engineer are as follows:</p> <p>“ Section 2. There shall be chosen annually on the first Monday of February, or within sixty days thereafter, by concurrent vote of the two branches of the city council, a city engineer, who shall be a citizen of Boston. He shall hold his office for one year from the first Monday of April in the year in which he shall be elected, unless sooner removed; he may be removed at the pleasure of the city council, and vacancies may be filled at any time for the unexpired term. He shall receive such compensation as the city council may from time to time determine.</p> <p>“ Section 3. Said engineer shall perform all such services for the city of Boston as properly come under the direction of a civil engineer, and shall be consulted on all important matters relating to public improvements of every kind where the advice of an engineer would be of service. He shall take charge of all such structures and public works of the city as the city council, or any committee of the city council, or of either branch, may direct; and under their direction he shall prepare all plans and specifications for such structures, and shall prepare or cause to be prepared under their direction all contracts for the same. He shall measure, or cause to be measured, when required by any committee of the city council or of either branch thereof, all work done by contract for the city, and shall certify the same. He shall be the custodian of all city plans belonging to his department.”</p> <p>The defendant put in evidence the following record of the board of health of said city of Boston:</p> <p>“ At a meeting of the board of health, held September 6,1880, voted: Whereas this board doth adjudge the flats in South Bay, lying northwesterly of Dorchester Avenue and between said avenue and the track of the New York and New England Railroad, when uncovered, a nuisance, the source of offensive odors and exhalations injurious to the public health and comfort, therefore, ordered, that the city engineer be requested to abate said nuisance by erecting a dam from the northwesterly side of island in the rear of Samuel H. L. Pierce’s lumber and planing mill to the track of said New York and New England Railroad, according to a plan submitted by said engineer, at an expense not exceeding forty-six hundred dollars.”</p> <p>The defendant further offered in evidence the following letter, written and sent, on September 6, 1880, by the clerk of said board of health to the city engineer: “ At a meeting of the board of health this day, it was voted to request the city engineer to abate a nuisance on Dorchester Avenue, by erecting a dam from the northwesterly side of an island in the rear of Samuel H. L. Pierce’s lumber and planing mill to the track of the New York and New England Railroad, according to a plan submitted by you, at an expense not exceeding forty-six hundred dollars.”</p> <p>To the admission of this order and letter the plaintiffs objected.</p> <p>It appeared that there was no other dam save the one in question to which the acts and proceedings aforesaid, as shown by the evidence on both sides, could relate.</p> <p>The defendant then put in evidence, without objection, the bills for building said dam.</p> <p>This was all the evidence in the case material to the question of liability. The judge ruled that the action could not be maintained ; and directed a verdict for the defendant. The plaintiffs alleged exceptions.</p>

Bill in equity, filed April 21, 1884, for the specific performance of an agreement to purchase land, the terms and conditions of the sale, so far as now material to the case, being as follows: “Ten days given to examine title, and if, upon examination of the records, it shall appear that any material act or thing is necessary to be done or performed, in order to perfect the title to said premises, which the seller is unable to do or perform, within a reasonable time, not…

<p>If two persons enter into an oral contract, by the terms of which one agrees to sell, and the other agrees to buy, certain goods at stipulated prices during a specified time, and, after a part of the goods have been delivered and paid for according to the contract, the seller refuses to deliver the rest of the goods ordered, or to fill future orders under the contract, unless the buyer will agree to pay a higher price than that named in the contract, and the buyer consents to pay and pays the advanced price upon receipt of the goods, he cannot maintain an action against the seller for breach of the original contract.</p>

Tort, for personal injuries sustained by the plaintiff while in the defendant’s employ. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows: The plaintiff testified that, in August, 1882, when fifteen years old, in pursuance of an arrangement made by his mother with one Cox, one of the defendant’s foremen, he entered the defendant’s service.

<p>A testator by his will gave the residue of his property in trust to pay ail of the net income to his wife during her life, and at her death to distribute the fund among those who would take as distributees of his personal estate, if he had died intestate immediately after the death of his wife. At her death, the trust fund contained bonds for the payment of money, with semiannual coupons attached, payable at different times. The trustee collected the coupons as they matured. Held, that, under the Pub. Sts. c. 136, § 25, the amounts received by the trustee from the coupons not payable at or before the time of the death of the wife, being coupons for interest for six months, which had begun to run at her death, should be apportioned between her estate and the distributees under the will of the testator, according to the proportional part of the six months which in each class of coupons had elapsed at her death.</p>

Petition to the board of railroad commissioners, under the Pub. Sts. c. 113, §§ 48-52, to determine the compensation to be paid by the respondent for the use of a portion of the petitioner’s tracks, since July 4, 1882. On this petition a hearing was had and an award made, which was returned to this court.

<p>Under the Pub. Sts. c. 162, an infant is not liable to arrest for debt upon a civil process.</p>

<p>Although an infant is exempt from arrest for debt, either upon execution or mesne process, he cannot maintain an action for an illegal arrest and false imprisonment against the person aiding the officer in making the arrest, if the arrest was made upon a valid writ; and the fact that the infant notified the defendant of his infancy at the time of the arrest is immaterial.</p>

<p>Contract upon an award of arbitrators. The agreement of submission, dated September BO, 1882, and signed by the parties, recited that certain disputes and differences had arisen between them concerning their rights under or growing out of a certain joint traffic contract entered into in 1857, and which continued for twenty years from October 1, 1858; and that the Nashua and Lowell Railroad Corporation, on April 17, 1880, brought a bill in equity in the Circuit Court of the United States for the District of Massachusetts for the recovery of the sums claimed to be due to it. Then followed this recital:</p> <p>“ And whereas, it has been agreed by and between the said parties to said suit to refer the said claims and all other claims now existing in favor of either party against the other to arbitration, upon the understanding that said arbitrators shall be governed in their determination and award by the rules of law applicable to the case, but without prejudice from any defence based on the statute of limitations, unless such defence would be good and valid in law if pleaded to the bill in equity aforesaid, commenced April 17th, 1880.” The agreement then stated that the parties submitted all demands of either against the other which originated before October 1,1880, to the determination of Elias Merwin, William S. Gardner, and Waldo Colburn, “ the award of whom, or of the greater part of whom, shall be final; and if either of the parties neglects to appear before the arbitrators, after due notice of the time and place appointed for hearing the parties, the arbitrators may proceed in its absence, and the arbitrators may make such award respecting costs and expenses as they shall judge reasonable, including a compensation for their own services ; and the parties further agree that they will respectively obey, observe, perform, fulfil, and keep the award of the said arbitrators of and concerning the premises. It is understood and agreed that the same rule and limitation of time as to the statute of limitations shall govern the arbitrators aforesaid, if said statute is pleaded by either party.”</p> <p>• Annexed to the agreement were certain exhibits, containing a statement of the claims of the respective parties. On August 7, 1883, the arbitrators signed their award. The instrument began by stating that the arbitrators met the parties on February 23, 1883, and proceeded as follows: “ It was then agreed by the said parties, that it was desirable that the arbitrators should first hear, consider, and determine the claims of the Nashua and Lowell Railroad Corporation marked 6 Numbers 3, 4, 5, and 6 ’ in their statement of claims annexed to said agreement, entitled Exhibit 1, before entering upon a hearing of any other claims of either party under said submission, and, with the consent and at the request of both parties, the arbitrators thereupon and upon subsequent days, namely, on the twenty-fourth and twenty-sixth days of February, 1883, proceeded to hear the respective parties in reference to said third, fourth, fifth, and sixth claims of the Nashua and Lowell Railroad Corporation, at each of which hearings the respective counsel aforesaid were present, and having fully heard and considered the respective proofs and arguments of the said parties in reference thereto, the subscribers, on the twenty-third day of May, 1883, at Boston, made their final award and determination in respect to said claims, and announced the same to the said parties, who were present by their said counsel, in the words following, namely:</p> <p>“ ‘ Several of the claims made by the Nashua and Lowell Railroad Corporation against the Boston and Lowell Railroad Corporation were by consent of both parties submitted to the referees for their award and determination, with the under•standing and reservation that the remaining claims made by the respective parties were to remain open, either for adjustment by the parties themselves, or for future hearing and determination by the referees. The items submitted to the referees, and upon which they have been requested to pass, are those numbered 3, 4, 5, and 6 in Exhibit 1, annexed to the agreement of reference. The referees have considered these items, and are of the opinion, and so award and determine, that the Nashua and Lowell Railroad Corporation is not entitled to ■recover anything from the Boston and Lowell Railroad Corporation in respect to either of said items.’ ”</p> <p>The award then stated, that the hearing of any other claims ■under the submission “ was then by agreement of all parties ” adjourned to June 29, 1883; that, at a hearing on the day to -which the matter had been adjourned, the counsel for the Nashua and Lowell Railroad Corporation presented a motion for a rehearing as to the law involved in the fifth claim, and in so much ■of the sixth claim as accrued after June 25, 1877; that this motion was overruled; that the further hearing was adjourned until August 1, 1883; and that on July 30, 31, each of the arbitrators received from the Nashua and Lowell Railroad Corporation certain papers, copies of which were annexed to the award.</p> <p>The first paper purported to contain a vote of the directors of the defendant corporation, passed July 5, 1883, which, after reciting the proceedings before the arbitrators, proceeded as follows : “ Now, therefore, resolved, under the circumstances above set forth, that this corporation will revoke said submission, and •refuse to proceed further under the same, unless the referees will either make a special report of their findings of fact and rulings of law in relation to the fifth claim, and that portion of the sixth arising after May, 1877, or else unless this corporation shall be permitted to amend the said submission by striking out or withdrawing therefrom the said fifth claim, and that portion of the sixth claim which has accrued or arisen since the vote of June 25th, 1877.”</p> <p>The second paper, dated July 30, 1883, was signed by the .corporate name of the defendant, by its president. It contained, after numerous recitals, the following: “Now, therefore, the Nashua and Lowell Railroad Corporation, in pursuance of said vote, does hereby revoke the said submission and all the authority therein and thereby conferred upon Elias Merwin, William S. Gardner, and Waldo Colburn, as arbitrators named therein, and does hereby terminate, so far as it lawfully may, any and all power heretofore given them to act under the said submission.”</p> <p>The award then stated, that on August 1,1883, the arbitrators met the parties, according to adjournment; and that the counsel for the Nashua and Lowell Railroad Corporation handed to the arbitrators a paper of which the following is a copy :</p> <p>“At a meeting of the directors of the Nashua and Lowell Railroad held at Boston, August 1, 1883, at nine o’ clock in the forenoon, the president having laid before the board a copy of an instrument of revocation of the submission entered into on the 30th day of September last, between this company and the Boston and Lowell Railroad Corporation, said submission being executed by him in behalf of this company, in pursuance of the directors’ vote of July 5th last, it was voted that the course so taken by him be ratified and approved, and that the directors will treat the said submission as no longer in force.</p> <p>“ A true extract from the record. Attest: W. W. Bailey, Clerk.”</p> <p>The award then stated that the arbitrators were of the opinion that they were bound to proceed with the hearing if either party so desired, and so informed the parties, and that they were ready to hear them; that the counsel for the Nashua and Lowell Railroad Corporation stated that that corporation did not intend to proceed further; and that he then withdrew.</p> <p>The award then stated the further proceedings before the arbitrators, and concluded with a “ summary,” which began as follows:</p> <p>“The subscribers, having fully heard the respective parties under said submission, so far as they desired to be heard, and having fully considered their respective proofs and arguments, do now, in addition to their final award and determination of May 23,1883, as hereinbefore set forth, award and determine, and this is our final award and determination in the premises, namely:</p> <p>“ (1.) That the Nashua and Lowell Railroad Corporation is not entitled to recover any sum of the Boston and Lowell Railroad Corporation by reason of any of the claims specifically made by it or embraced by said agreement of reference against said Boston and Lowell Railroad Corporation.”</p> <p>Then followed an award in favor of the Boston and Lowell Railroad Corporation, on their claims, to the amount of 112,148.88.</p> <p>Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was contradictory evidence whether the statement of the arbitrators contained in the clause beginning “Several of the claims,” and ending with the words, “ by the referees,” was correct, the defendant insisting that such statement was not correct, and the plaintiff insisting that it was correct. The other facts stated in the award were not in dispute.</p> <p>The defendant took the ground that the only assent given by it was to the determination by the arbitrators in the first instance of certain questions of law as preliminary, and that they might pass upon such legal questions, and announce the result, before proceeding to consider other claims embraced in the submission, and before passing upon such other claims, and that the defendant never assented to any partial and final award being made, so as to be binding on the defendant before the revocation was notified to the arbitrators. The plaintiff contended that the statement in the award was true.</p> <p>Thereupon the defendant contended, and requested the judge to rule, as follows: “1. The clause in the submission stating that it was entered into 6 upon the understanding that said arbitrators shall be governed in their determination and award by the rules of law applicable to the case,’ operated as a limitation or restriction of the power of the arbitrators, so that their determination of matters of law was not final. 2. If the arbitrators treated the' submission as making them final judges of all questions of law raised before them, and undertook to pass finally upon all matters of law laid before them, and did so in such a way that the defendant was deprived of all means of revising their legal rulings, except by revoking the said submission, and the defendant did revoke the submission for that reason, then such revocation was legally justifiable., 8. Whether the defendant’s revocation of the submission in this case was legally justifiable or not, it operated to deprive the arbitrators of all further power of action under the same.”</p> <p>The plaintiff asked the judge to rule, whatever he might find upon the question of fact in dispute, that the plaintiff was entitled to a finding in its favor for the amount of the award, and interest on the same; but the judge declined so to rule.</p> <p>The judge refused to give the first two rulings requested by the defendant, but did give the third ruling requested, and thereupon found for the defendant. The plaintiff alleged exceptions.</p>

<p>Error in fact cannot be assigned in a writ of error, where the matter of fact might have been put in issue and tried in the original action.</p> <p>A judgment against two debtors jointly is not discharged by the commitment and subsequent release from arrest of one of the debtors, but remains in full force against both.</p> <p>If a court has acquired jurisdiction of a case by the fact that the person summoned as trustee has his usual place of business within the territorial limits over which the court has jurisdiction, the subsequent discharge of the trustee does not oust the court of its jurisdiction over the remaining parties.</p> <p>If the plaintiS in an action, for the purpose of giving the court jurisdiction, inserts in the writ the name of a fictitious trustee, described as having his usual place of business within the territorial jurisdiction of the court, a writ of error cannot be maintained to reverse a judgment entered for the plaintiS in the action.</p>

Bill in equity, filed April 25, 1884, against Henry H. Earl and the New England Mutual Aid Society, a corporation established by law in this Commonwealth. An amendment of the bill, filed September 15, 1884, joined Clinton V. S. Remington as a party defendant.

<p>A testator by his will gave the residue of his estate “ equally to the Authorized Agents of the Home and Foreign Missionary Societies to aid in propagating the Holy religion of Jesus Christ.” Held, that extrinsic evidence of the facts known to the testator at the time he executed the will, the names by which he was accustomed to call the missionary societies, or by which they were usually called and known in the religious society with which he worshipped, the interest shown by him in any particular missionary society, and the contributions which he made for missionary purposes, was admissible to aid in identifying the societies intended by the will.</p> <p>A bequest to a missionary society, “ to aid in propagating the Holy religion of Jesus Christ,” is a good charitable bequest.</p>

<p>Contract on a bill of exchange for $2500, dated at San Francisco on April 3, 1883, signed by one B. W. Owens, and drawn, at sight, upon the defendants, payable to the order of the plaintiff. The declaration contained two counts. The first count alleged that the defendants had accepted the bill; and the second count alleged that they had promised to accept it.</p> <p>Trial in the Superior Court, without a jury, before Mason, J., who reported the case for the determination of this court, in substance as follows:</p> <p>It appeared that the defendants were wool commission merchants, doing business in Boston ; and that, in the latter part of the year 1882, one B. F. Owens, a wool dealer doing business in San Francisco, consigned to them one hundred and fifty-four bales of wool, for sale for his account on commission. At the time of the consignment, the defendants advanced him the sum of $8200 on the security of the wool, by paying two drafts made upon them by Owens, one dated October 30, 1882, for $3600, which was paid on November 6, 1882, and one dated November 23, 1882, for $4600, which was paid on December 2, 1882.</p> <p>It further appeared that, from that time forward, there was frequent correspondence between Owens and the defendants in regard to the value of the wool and the probable prices to be obtained for it, the evidence tending to show, on Owens’s estimate of the value of the wool still unsold in the latter part of March, 1883, there would be a balance due him by the defendants of about $3800; while upon the defendants’ estimate, as conveyed to Owens by their letters and telegrams, the balance due him would not be over $3000.</p> <p>It further appeared that, early in March, 1883, Owens telegraphed the defendants several times, asking for further advances, which the defendants at first refused to make, but, on March 27, telegraphed Owens as follows: “Party has not approved 15 c. wool. Value lot 6 at 16, lot 8 at 18; market very dull. Draw fifteen hundred.” To which Owens sent the following reply: “ Will you accept thirty days’ draft two thousand dollars ? Answer.” To this the defendants responded as follows, on April 3: “ Think we can get fourteen cents for ninety-nine bales very best. Market is dull, and we advise selling before new clip arrives. If you decide to sell, draw twenty-five hundred dollars on demand; if not, draw not over fifteen hundred.” To which Owens replied as follows, on the same day: “ Sell ninety-nine bales fourteen cents; hold lots six and eight twenty cents.”</p> <p>On receiving the despatch of March 27, Owens took it to the plaintiff bank, and obtained the discount from the bank of his draft on the defendants for $1500. He gave no notice-to the defendants of his having drawn this draft, and the first they heard of it was on April 6, 1883, when it was presented to them for payment, and was paid.</p> <p>On receiving the telegram of April 3, Owens’s clerk took it to the plaintiff’s cashier with the draft for $2500, and asked to have the draft discounted, saying that Owens was authorized to draw it, and showed the telegram. The cashier asked whether Owens had authorized the sale of the wool proposed in the telegram, and was told that he had, and was shown the telegram from Owens to the defendants of April 3, set forth above. The cashier then credited Owens’s deposit account with the amount of the draft, and took the same.</p> <p>The defendants had no notice of this draft until it was presented for acceptance, on April 12, 1883, when acceptance was refused, and it was subsequently duly presented for payment, which was also refused. The draft was then duly protested for nonpayment and returned to the plaintiff, and the draft is now owned by it. Owens drew out of the plaintiff bank his entire account, except $26.75, before the bank had notice of the dishonor of the draft of April 3.</p> <p>The evidence tended to show that the bank acted in good faith in the transaction.</p> <p>On the above, with the other evidence in the case, the judge made the following findings:</p> <p>The defendants intended by their telegrams of March 27 and April 3 to authorize Owens to draw but $2500 in all. The telegrams sent, under the circumstances, as between the defendants and Owens, conferred no authority to draw more than $2500 in all. A man of ordinary intelligence, in Owens’s place and with Owens’s knowledge, using reasonable care, would have understood the telegrams of March 27 and April 3 to give authority to draw but $2500 in all. Owens is not shown to have knowingly perpetrated fraud in exhibiting the telegram of April 3 to the plaintiff bank, and raising $2500 upon it, as he may have acted from careless reading of the telegram in question. The defendants understood the telegram from- Owens of April 1 to be an inquiry whether he could not draw for $2000 at sixty days, in place of the $1500 authorized by the telegram of March 27 ; and the defendants were justified in so understanding it, and this construction was the natural construction when said telegram was considered with reference to the whole correspondence The plaintiff bank negotiated the bill of exchange in good faith, relying upon the telegram of April 3. The bill of exchange in suit, drawn at sight, differs materially from the bill on demand, authorized by the telegram.</p> <p>The judge found for the defendants. If, upon the above facts, the plaintiff was entitled to recover, judgment was to be entered for it; otherwise, for the defendants.</p>

<p>Contract, by the administrator of the estate of George E. Foster, to recover one half of the loss resulting from the purchase and sale of one hundred shares of stock in a railroad corporation. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff offered evidence tending to show the following facts: On June 3, 1881, Foster gave an order to Jackson and Curtis, brokers, doing business in Boston, to buy and carry for his account one hundred shares of the stock in question. Foster was in the habit of dealing with said brokers on margins, and he did not, at 'the time of giving said order, or at any time subsequently, deposit any margin or make any payment on account of said purchase; but said brokers were carrying other stocks for him at that time on margin, and his account with said brokers was considered good enough to warrant said purchase for him by them on margin. Jackson and Curtis did not personally purchase said stock, but sent the order therefor to McGinnis Brothers and Fearing, brokers in New York, their agents, sending no money and making no payment on account of a margin to McGinnis Brothers and Fearing. The latter were carrying other stocks on margin for Jackson and Curtis, and the state of their account was considered sufficient to warrant such a purchase on the credit of Jackson and Curtis. . McGinnis Brothers and Fearing bought said stock, and received a certificate therefor, but in whose name said certificate was, or how indorsed, did not appear. McGinnis testified that his firm bought the stock, and, on January 4, 1881, received the stock, and paid $5000 therefor, which was charged to the account of Jackson and Curtis; that, after the certificate passed, it was held for their account; and that he did not know in whose name the certificate stood. Neither Foster nor Jackson and Curtis ever had a certificate of said stock; and McGinnis Brothers and Fearing never knew Foster in the transaction, nor of his having any interest in said stock, nor would they have recognized any direction of his relating thereto, unless said direction came through Jackson and Curtis.</p> <p>Said stock was carried in the manner aforesaid from the time of its purchase down to the time when Foster died, in September, 1881. On September 19, 1881, the plaintiff was appointed administrator of Foster’s estate; and on September 23, 1881, the plaintiff sent a note to the defendant, requesting him to inform the plaintiff what interests he had in connection with Foster Thereupon the defendant called upon the plaintiff, and stated that he had a half interest in said stock. The plaintiff asked him to settle his share of the loss. The defendant said that he was then unable to settle his share of the loss on the stock if then sold, that the market price was then less than its cost, but he wished the plaintiff to carry the same along for him, and the plaintiff consented to do so.</p> <p>Afterwards certain correspondence ensued between the plaintiff and the defendant, which was put in evidence, and the substance of which was as follows: On February 11, 1882, the plaintiff wrote to the defendant stating that he was unwilling to carry the stock any longer except upon a margin which would make him secure, and requesting the defendant to advise the plaintiff what course the defendant wished to be pursued. To this letter the defendant replied on February 15,1882, stating that he one day happened into Foster’s office, and Foster told him that he had purchased the stock in question, and said that he might have a half interest in it if he wished; and Foster told him that he, Foster, would hold the stock for a profit, and he would not have to put up a cent, and would be given half the profits. The letter then proceeded as follows: “Regarding this as a disposition on his part to do me a favor, and give me an interest in a purchase in which I should share only in the profit, (he having previously stated to me that he would give me an opportunity to make some money,) I of course accepted, and I am satisfied that, if Mr. Foster had lived, he would have given me any profit that might have accrued, and would never have called on me for money, or held me responsible in any way. Therefore I do not consider that I am in any sense responsible.” To this letter the plaintiff replied, on February 16, declining to accept the statement, and reminding the defendant that in September he had admitted his liability and asked for further time. On March 21, and April 8, the plaintiff wrote to the defendant asking authority to sell the stock. On April 10, the defendant wrote to the plaintiff as follows: “In regard to the matter that you write to me of, I refer you to the letter sent you some time ago. I then told you all that I know, and the truth.” On April 12, the plaintiff wrote to the defendant, stating that he proposed to sell the stock in the course of a few days, and demanding one half of the loss; and on April 25, the plaintiff wrote again, that he had sold the stock, and stating the account.</p> <p>The plaintiff never held a certificate of said stock, nor did he pay for and receive the same; but, on April 25, 1882, he gave Jackson and Curtis an order to sell the same, and Jackson and Curtis sent said order to McGinnis Brothers and Fearing, and they reported a sale thereof at $36 per share. The plaintiff settled with Jackson and Curtis on the basis of such sale at $36 per share. At the trial, no question was made as to the sale of the stock at said rate, and the loss thereon.</p> <p>The plaintiff called the defendant as a witness, who testified that he was a friend of Foster’s; that he had performed some work for Foster at his house as an artist; that Foster was highly pleased therewith, and on one occasion, at the defendant’s studio, told the defendant of some fortunate speculations he had had in stocks; that he then suggested that he would some time give the defendant a chance to make some money; that one day he informed the defendant that he had purchased said shares of stock, and told the defendant he could have one half interest in the same; that the defendant replied he could not spare the money to put up as margin for the same; that Foster said he need not put up anything, as he would look out for that; that Foster stated that he always held on to his stocks, and sold at a profit, and he would not sell at a loss; that the defendant accepted the offer; and that Foster never called on him for any money during his lifetime, nor for anything else, although the price of said stock after its purchase continually went down; that when he called on the plaintiff he stated these facts, but the plaintiff seemed to disregard them, and he wrote them in the letter of February 15. The plaintiff denied' that the defendant had so stated to him, but contended that the defendant admitted he had a half interest for profit or loss on the stock. This was all the evidence offered by the plaintiff.</p> <p>The defendant offered no evidence, and rested his case, and requested the judge to rule that the plaintiff had not made out a case, because the contract was illegal, as a gambling contract; because it was a contract for the sale of goods, wares, and merchandise exceeding fifty dollars in value, without any memorandum in writing, or any delivery or acceptance, or any payment of earnest; and because neither Foster nor the plaintiff was the owner or assignee of said stock, nor authorized by the owner or assignee thereof, or his agent, to make an agreement for any sale or transfer of any interest therein. But the judge declined so to rule.</p> <p>The defendant then requested the judge to instruct the jury as follows: 1. There is no legal and competent evidence in this case of any contract which is binding upon the defendant. 2. There is no evidence in this case that the plaintiff or his intestate was the owner or assignee of the owner of the stock in question, or authorized by the owner or assignee thereof, or his agent, to sell or transfer the stock in question, or any interest therein; and the plaintiff cannot recover, either on any contract or conversation between Foster and the defendant, or Bullard and the defendant. 3. The evidence in this case shows that the contract between the plaintiff’s intestate and the defendant was to sell a certain interest in one hundred shares of railroad stock, and was required by the provisions of the Public Statutes to be in writing. Not being in writing, it is not enforceable against the defendant. 4. The evidence in this case shows that the contract between the plaintiff’s intestate and the defendant was to sell or transfer a certain interest in one hundred shares of railroad stock; and the provisions of the Public Statutes of this State require that the plaintiff’s intestate should be at the time of making the contract the owner or assignee of said stock, or authorized by the owner or assignee thereof, or his agent, to sell and transfer said interest therein. 5. The burden of proof is on the plaintiff to establish a contract between the plaintiff’s intestate and the defendant which is legal and valid, and does not violate any of the requirements of the foregoing statutes. 6. There is no evidence in this case to show when the contract was made between Foster and Smith, and therefore there is nothing to show whether the stock had been bought pursuant to the order given or not. The plaintiff cannot therefore recover. 7. If the jury find that the stock was bought upon the order of Foster, and for his account, and was thereafter held by McGinnis, as McGinnis testified, and the defendant orally agreed to share equally in the profits and losses which might result from the purchase and sale of the stock, then such contract is illegal, and cannot be enforced against the defendant.</p> <p>The judge declined to instruct the jury as requested, but instructed them as follows: “ If the jury find that the stock was bought upon the order of Foster, and for his account, and was thereafter held subject to his order and control, and that, after the purchase, Foster and the defendant orally agreed to share equally in the profits and losses which might result from the purchase and sale of the stock, the plaintiff is entitled to a verdict for one half of the difference between the cost of the stock, with interest from the time of purchase to the time of sale, and the price at which it was sold; and to one half of the difference so found interest should be added from the date of demand of payment.”</p> <p>The judge further instructed the jury, that the action could not be maintained, unless they found that the contract between Foster and the defendant was, in substance, that Foster should pay to the defendant one half the profit upon the sale of said stock, in consideration of the promise of the defendant to pay to Foster one half the loss if the stock was sold at a loss; and that such a contract was not a contract for the sale of goods, wares, and merchandise, and was not within the statute of frauds.</p> <p>The jury returned a verdict for the plaintiff; and the defend ant alleged exceptions.</p>

<p>Bill in equity, filed April 21, 1883, by the only surviving child of John D. Williams, deceased, to restrain the defendant, doing business under the name and style of John D. & M. Williams, from the further use in his said business of the name of John D. Williams. Hearing before Devens, J., who reported for the consideration of the full court the following case:</p> <p>The firm of John D. & M. Williams was formed in 1812, and consisted of John D. Williams and Moses Williams, his brother; and they continued the business under the firm name until April 5, 1831, when David W. Williams, a son of John D. Williams, was taken into the firm as a member thereof.</p> <p>On November 4, 1836, John D. Williams retired from said firm, and by an instrument under his hand and seal, bearing that date, relinquished “ to the said Moses Williams and David W. Williams all his interest of every kind to all the property of every name and nature which the said John D., Moses, and David W. hold as copartners under the style and firm of John D. & M. Williams, and also the full right to use the same style of John D. & M. Williams under which to trade in future.”</p> <p>On January 22, 1849, David W. Williams, so far as he acquired any rights to the firm name under the preceding instrument, by an instrument in writing transferred the same to said Moses Williams, his copartner, and retired from the firm.</p> <p>John D. Williams died on August 28, 1848, and Moses Williams was appointed the sole executor of his will, gave bond as such executor, and assumed and fully discharged the trusts, duly rendering his final account as such executor to the Probate Court, which account was accepted and allowed by said court on April 15, 1861. Neither in said account, nor in any other account down to 1882, when Moses Williams died, had he made any inventory or rendered any account of the interest of John D. Williams in said firm name, or of the value thereof.</p> <p>On February 1, 1866, Moses Williams — who had, during the whole of the mean time, done business as before under the name of John D. & M. Williams, and who had associated with himself as partners, about the year 1849, Barney Cory, and his two sons Moses B. Williams and Thomas B. Williams — retired and withdrew from said firm, which had up to that time been carrying on business under the old name and style of John D. & M. Williams. Upon thus retiring from business, Moses Williams, by an instrument under his hand and seal, released to Barney Cory, Moses B. Williams, and Thomas B. Williams, “ parties of the second part, all his interest in the merchandise and stock of the said firm, and in the debts due to said firm, and in the claims which said firm now has against any person or persons whatsoever, except those mentioned in the schedule hereto annexed. The said Moses Williams also consents, so far as he has the legal right, that the said parties of the second part may use for any firm of which they may become members the name of John D. & M. Williams.” This instrument was signed by Moses Williams, Barney Cory, Moses B. Williams, and Thomas B. Williams.</p> <p>By an instrument of the same date as the above, Barney Cory, Moses B. Williams, and Thomas B. Williams formed a copartnership with the defendant, who is a grand-nephew of John D. and of Moses Williams, under the firm name and style of John D. & M. Williams; and Moses Williams sent- notices to two persons who had had business with the firm, stating that he had retired from the firm, that Otis E. Weld had become a partner, and that the latter would, with the other partners, carry on the business “under the old name and style of John D. & M. Williams.” The retirement of Moses Williams from said firm was published in four Boston papers several times about that date. The plaintiff about this time took a morning newspaper, which she testified she believed was the Boston Post, one of the papers in which said retirement was published. She then lived in a house next to that of Barney Cory; and she was in the habit of going to see Moses Williams twice a year, — when she went out of town, and when she came home. Moses Williams, during his lifetime, was a prominent citizen of Boston, and was well known in the business community.</p> <p>The plaintiff testified that she was, in fact, unaware that Moses Williams had withdrawn from business and retired from said firm; and that, until the time of his death, September 12, 1882, she supposed he was still a member thereof.</p> <p>After his retirement from said business, in 1866, Moses Williams, down to the year preceding his death, when he became confined to his house by sickness, continued to use the same desk in the store which he had previously occupied, and was frequently seen there by the husband of the plaintiff, whom he used to consult about wines, as he had done for many years, and who repeatedly informed his wife, the plaintiff, of having thus met Moses Williams at said store.</p> <p>After February 1, 1866, Barney Cory, Moses B. Williams, Thomas B. Williams, and the defendant carried on said business, under the firm name and style of John D. & M. Williams, until October 9, 1866, when Moses B. Williams died; and thereafter the survivors carried on said business, under said name and style, until June 3, 1878, when Thomas B. Williams died; and thereafter the survivors carried on the same business, under the same name and style, until August 18, 1882, when Barney Cory died, leaving the defendant the sole survivor, who has ever since, as sole proprietor, carried on said business, and claims the right so to do, under the firm name and style of John D. & M. Williams.</p> <p>The defendant, at the time of the hearing, had not settled the affairs of his copartnership with Barney Cory; but a large sum of money still remained due from him, as surviving partner, to Cory’s administrators.</p> <p>As soon as the defendant became a partner, on February 1, 1866, the names of the partners, namely, Barney Cory, Moses B. Williams, Thomas B. Williams, and Otis E. Weld, were painted upon the front of the store occupied by the defendant and his copartners, and these names remained so until about January 1, 1867. It appeared that the husband of the plaintiff was at the store very frequently during this period, but he testified that he did not remember seeing the defendant’s name painted on said sign as a member of the firm.</p> <p>Moses Williams, after his retirement from the firm in 1866, and prior to his death in 1882, made several checks payable to the order of John D. & M. Williams, and also wrote to said firm two letters, dated July 9, 1877, and April 15, 1878, addressed to Messrs. John D. & M. Williams.</p> <p>It was not contended that the defendant had any right to the use of the name of J. D. Williams or John D. Williams in his said business, either alone or in connection with the name of M. Williams, except as the same may be derived from the written instruments and facts herein referred to.</p> <p>On or about November 26, 1878, the plaintiff had, upon one occasion, sent by messenger to the store where Barney Cory and the defendant were then doing business under the name of John D. & M. Williams, a written order for some cooking wine, addressed to Messrs. Williams; and, upon another occasion, there had come into the possession of the firm a torn tag, which had apparently been tied to a demijohn, and bore upon its face the name of the plaintiff in her own handwriting, and immediately above her name, in the handwriting of some other person, the words “ J. D. & M. Williams; ” but when these words were written upon the tag, and by whom, did not appear.</p> <p>The plaintiff testified that she did not, prior to said Moses Williams’s death, know that he had ceased to be a member of said firm. Considering the publicity given to the notice of dissolution, and the foregoing facts proved, the judge declined to find that she had no such knowledge, although he stated that he was not prepared to find otherwise, and did not find it to be shown that she actually had this knowledge.</p> <p>The plaintiff is the only surviving child of John D. Williams ; but there are still living issue of other deceased children, being grandchildren and great-grandchildren of John D. Williams, to the number of more than forty persons, many of them bearing the name of Williams, and one of them the name of John D. Williams. It was not contended that the defendant had received the written consent of the plaintiff, unless said order and tag were intended as such consent.</p> <p>It was admitted that, at the time of the filing of the bill, there was no executor, administrator de bonis non with the will annexed, or other probate representative of John D. Williams; •and that there never had been any except Moses Williams.</p>

<p>Bill in equity, filed September 22, 1883, against Lewis W. Tappan, Jr., Augustus N. Clark, and Ellen Lyons, to redeem certain land in Boston from a mortgage. Hearing before Devens, J., who reported, for the consideration of the full court, the following ease:</p> <p>On September 11, 1871, Lemuel Pope mortgaged the land in question to George A. Simmons, trustee under the will of Ephraim Harrington, to secure the payment of a promissory note of $37,669.59 in three years from that date. Simmons also received at the same time two other promissory notes, each secured by a mortgage, as collateral security for the payment of the original mortgage debt.</p> <p>On October 20, 1871, Pope conveyed the land to Frederick H. Rand, subject to the mortgage to Simmons, which mortgage Rand was to assume and pay. On March 29,1872, Rand mortgaged the land to Pope to secure the sum of $1098. On October 28, 1872, Pope assigned this mortgage to the plaintiff.</p> <p>On September 1, 1873, Rand and his assignees in bankruptcy, the latter being thereto duly authorized, quitclaimed the land to the defendant Tappan. This deed made no mention of any mortgages.</p> <p>On February 5, 1875, Simmons assigned the first mortgage to Tappan, and also one of the mortgages taken by Simmons as collateral security. The amount of the debt secured by the first mortgage was at this time $2824.20.</p> <p>On March 18, 1875, there was a breach of the condition of the first mortgage, and Tappan made an entry for the purpose of foreclosing the mortgage. The certificate of the two witnesses, prescribed by the Gen. Sts. c. 140, §§ 1, 2, was in the usual form, and was duly recorded.</p> <p>On June 29, 1875, Tappan caused the land embraced in the collateral mortgage to be sold, and bought it himself; the fair value of this land was at the time $1250.</p> <p>On June 8, 1877, Tappan conveyed the premises by a warranty deed to one Newton, who, on December 24,1877, conveyed the same by a warranty deed to the defendant Clark. On July 2, 1883, Clark conveyed a part of the land to the defendant Lyons.</p> <p>The plaintiff testified, that he first knew of the entry of Tappan to foreclose the mortgage about two months before the filing of this bill.</p>

<p>If a policy of insurance on goods in transit contains no clause specifically subrogating the insurer to the rights of the insured in case of a loss through the fault of a carrier, it is no defence to an action on the policy for a loss insured against, that the insured has', by a contract with the carrier, given him the benefit of any insurance effected, if there is no fraud or concealment on the part of the insured in effecting the insurance.</p> <p>A provision in a contract of carriage, that the carrier incurring liability by reason of loss or damage to the goods sustained during transportation shall have the benefit of any insurance which may have been effected upon the goods, is not within the clause in a policy of insurance on the goods, that “ this insurance shall be void in case the policy or the interest insured thereby shall be sold, assigned, transferred, or pledged, without the consent in writing of the insurer.”</p>

<p>Contract to recover $15,000, the amount of a check, dated September 3, 1883, drawn on the plaintiff by Benjamin F. Burgess and Sons, in favor of the Massachusetts Loan and Trust Company, and by it deposited, on September 3, with the defendant. Trial in this court, before 0. Allen, J., who reported the case for the consideration of the full court, in substance as follows:</p> <p>The plaintiff and defendant banks are members of an unincorporated association called the Boston Clearing-House Association, whose rules and course of business are the same as set forth in the cases of Merchants' Bank v. Eagle Bank, 101 Mass. 281, and Exchange Bank v. Bank of North America, 132 Mass. 147, to which reference is to be made.</p> <p>Benjamin F. Burgess and Sons were depositors with the plaintiff bank and kept a bank account with it, and Benjamin F. Burgess was one of the plaintiff’s directors. They were indebted to the plaintiff in the sum of $83,000 on three notes, payable on demand, with a pledge of warehouse receipts for twelve hundred and seventy hogsheads of sugar as collateral security, and in the further sum of $129,500 on three other notes, payable on demand, with a pledge of United States bonds and other securities as collateral. Demand was made for the payment of the notes for $83,000 on the 23d or 24th of August, 1833, and, within two days after the demand, Burgess told the plaintiff’s president that he had sold or bargained to sell two hundred and seventeen hogsheads of the sugar; and the warehouse receipts were thereupon entrusted to Burgess, as agent of the bank, to enable him to deliver the sugar so sold, with the understanding that the money received for the sugar should be brought to the bank and applied on the debt. The sugar was sold on August 23, to Nash, Spaulding, and Company, who gave their check for $7500, dated September 1, and payable to Benjamin F. Burgess and Sons. This check was deposited with the plaintiff by that firm, on September 1, to the credit of Benjamin F. Burgess and Sons, and the same was entered to their credit in their bank account, the plaintiff not knowing at the time, nor until September 5, that it came from the sale of the sugar. Prior to that time, when Burgess and Sons had been allowed to dispose of goods pledged by them as collateral security to the plaintiff bank, they had usually deposited the money or check received upon the sale thereof, and then given their own check for the same amount to pay to the bank the amount received from the sale of the collateral security. There was no evidence of any prior instance in which they had failed, in this or in some other way, to return to the bank the proceeds of such sale, to be applied upon the debt.</p> <p>On the morning of September 4, there was an apparent balance of $17,145 56 to the credit of the firm of Burgess and Sons, the item of $7500 being included as an item to their credit, entered on September 1, as above stated. During the forenoon of September 4, three checks of Benjamin F. Burgess and Sons, of $1000, $225, and $200, respectively, were paid over the counter by the plaintiff. On the same day the check in controversy in this action came from the defendant bank to the plaintiff bank through the clearing-house, where it had been provisionally paid, in accordance with the usual course of business in the clearing-house. This check was received by the plaintiff at about noon, and was in the first instance entered to the debit of Benjamin F. Burgess and Sons on the plaintiff’s books; but at about one o’clock the president of the plaintiff received the following communication, signed by the agent of J. S. Morgan and Company: “ Please take notice that any and all property and merchandise in your hands, pledged to you by Benjamin Burgess and Sons, and the proceeds of any such property and merchandise, is, and the same are, so far as not required for the purposes of such pledge, the property of, and must be accounted for, and paid over to, J. S. Morgan and Company.” This led the president to think that Burgess and Sons were in financial trouble, and he then discovered that no payment from the avails of the sugar had been made upon the indebtedness for which the sugar had been pledged as collateral security. He looked at the condition of their bank account, and immediately gave directions to send back the check of $15,000 to the defendant, and to demand the repayment of the money, as the check was not good; and the entry of it in the account of Burgess and Sons was erased. At the same time, by the direction of the president, there was debited to the account of Burgess and Sons $29,500, which was the amount of one of the notes held by the plaintiff bank against them, for which other collateral was held as security, and this was afterwards, on the same day, corrected by substituting $23,000, the balance of one of the notes for which the sugar was held as collateral, upon which demand had been made. The messenger started from thé Merchants’ Bank with the check at two or three minutes after one o’clock, and demand was accordingly made upon the defendant at from seven to twelve minutes after one o’clock, on September 4, on the ground that the check was not good; and repayment was refused. The defendant had entered the check of $15,000 to the credit of the Massachusetts Loan and Trust Company on the day of its deposit, and the defendant did not change its position towards said company in the interval between one o’clock and the time when the plaintiff’s demand was made as aforesaid.</p> <p>Where there is not enough money on deposit to pay a check in full, the ordinary custom is to return the check as not good.</p> <p>The plaintiff held no surplus of security upon either branch of the indebtedness of Burgess and Sons which could be applied to make good the $7500. The president of the plaintiff bank, who was the only principal officer testifying, and who gave the directions for the return of the check, had no knowledge on September 4 that the sugar pledged as collateral security was not sufficient to secure all of the notes of Burgess and Sons held by the bank for which the collateral was given.</p> <p>Burgess and Sons borrowed from the plaintiff, upon memorandum checks, $2000 on August 29, and $6000 on August 31, which sums were placed to their credit on those respective dates. Burgess handed the checks of his firm for these amounts to the teller of the plaintiff bank, asking that his firm might be credited with the amounts thereof, and the checks “held over and charged in the next day.” These checks were not at the time entered in the account upon the plaintiff's books to the debit of Burgess and Sons, but were merely kept in the drawer as memorandum checks. Burgess was desirous of getting this transaction out of the books of the bank.</p> <p>On September 1, after making the deposit of $7500 received from the sale of the sugar, Burgess directed the teller to charge the two memorandum checks in the account, which was accordingly done, and these two charges are shown by the items of $6000 and $2000 in the statement of account as checks charged on that day. In this way he returned and repaid the money credited in the two checks to Burgess and Sons. Burgess and Sons were not entitled to the credit obtained on September 1 by the deposit of the check for $7500.</p> <p>The defendant contended that the remedy of the plaintiff, if any, was not against the defendant, but against the Massachusetts Loan and Trust Company; that the plaintiff got the benefit of the sale of the sugar by applying the proceeds on another loan; and that for the above reason, and also in any view of the case, there was no such mistake of fact as would entitle it to recover.</p>

. Tort for personal injuries occasioned to the plaintiff by a defect in a highway, in Hyde Park, alleged to be an approach of a bridge over the defendant’s railroad, which the defendant was bound to keep in repair.

Contract, in three counts, against W. A. Calkin and Louise Cherrington, to recover the balance of a promissory note for $3000, dated August 31, 1875, payable to Hepsibeth Pierce or order, in instalments of $100 once in each three months, signed by the defendant Calkin, and indorsed by Pierce. It also bore upon the back the signature of the defendant Cherrington.

<p>There may be a bargain and sale of goods sufficient to transfer the title, and thus to support an action for goods bargained and sold, without any such delivery as will amount to a transfer of possession.</p> <p>A. sold B. certain shares of stock “payable and deliverable, buyer’s option, sixty days.” By the rules of the stock exchange, of which both parties were members, on all contracts for stocks sold on time either party might require deposits to be made at any time during the existence of the contract; and the seller might have the privilege of depositing the whole amount of the stock sold in lieu of the cash, in which case the margins should be paid to him by the buyer and the amount credited on the contract. Two days after the sale in question, A. called for a margin of a certain per cent of the contract price, and, on the next day, deposited the certificate of the stock with a trust company, with a power of attorney for its transfer executed in blank. The trust company gave A. a receipt for the stock, agreeing to deliver it upon the return of the receipt indorsed by A. and B.; and B. paid A. the amount of the margin called for. Held, that this transaction amounted to a transfer of the title, subject to the right of A. to require the trust company to obtain the price before surrendering possession of the certificate; and that, after the expiration of the sixty days named in the contract, A. could maintain an action against B. for the balance of the price.</p> <p>If a broker, at the time he sells a certain number of shares of stock, has in his possession certificates for that number of shares of such stock which he was duly authorized by his principal to sell for him, this takes the case out of the statutory provision against stockjobbing, Gen. Sts. c. 105, § 6.</p>

<p>An action for use and occupation will not lie against the assignee in insolvency of a debtor, who, at the time of the filing of his petition, was a tenant at will of certain premises, merely upon proof that the goods of the insolvent were allowed to remain on the premises for about two months thereafter, and that ; during said time the assignee entered with workmen, who for several days were engaged in removing the goods.</p>

Tort, by the administratrix of the estate of Jeremiah Mc-Kimble, for causing his death. The declaration contained two counts. The first count alleged that the intestate was a passenger on the defendant’s train, and was killed while leaving the same on January 10, 1883, at Charlestown, when the train stopped, through the defendant’s negligence and the gross negligence of its servants.

Contract upon a promissory note for $129, dated April 22, 1882, payable to the plaintiff or order, and signed by the defendant. Answer, want of consideration.

<p>In an action by the payee against the acceptor of an order, above whose acceptance were written the words, “ To be paid out of the last payment,” a written contract, existing at the time of the acceptance, between the acceptor and the drawer, for the erection of a house, and a conversation, before the acceptance, between the parties to the order and the acceptor’s architect, referring to the contract, are admissible in evidence to aid in the construction of the order.</p>

Tort for personal injuries. Trial in the Superior Court, without a jury, before Gardner, J., who reported the ease for the determination of this court, in substance as follows: The plaintiff was in the employ of the Boston and Albany Railroad Company, as a laborer and track repairer, and, on August 5,1882, was, under the direction of said railroad company, rightfully on its track, engaged in the performance of his duties, and in the exercise of due care, when an express…

<p>If the language of a section of the Public Statutes is ambiguous, or susceptible of two constructions, the court, in determining its meaning, will consider the lan guage of the statutes of which it is a revision.</p> <p>Under the Pub. Sts. c. 11, § 4, and c. 13, §§ 48, 46, 57, the shares of stock of a corporation organized under the laws of this Commonwealth to build a railroad in a foreign country are taxable to the owner for state, county, or town purposes.</p>

<p>R., the agent of T., the owner of a lot of land, made an arrangement with N. to buy the land, but at no definitely fixed price. N. entered into a contract with a builder td erect a block of houses, for which he was to be paid in instalments, partly in cash and partly in promissory notes guaranteed by R. After the houses were partially completed, to enable T. to get the benefit of the improvements placed upon the land, T., with knowledge that N. was insolvent, executed a deed of the land to N. at a price more than twice its real value without the improvements, and N. made a mortgage of the same back to T., to secure his promissory note for a sum of money much greater than the value of the land without the improvements. The note was payable at a fixed time. It was also under seal, and referred to the mortgage. The mortgage gave N. the right to pay the debt in instalments from time to time. T. subsequently, and before the maturity of the note, assigned the mortgage and note to trustees, in trust to pay certain unsecured creditors, and to pay over the surplus to him. Subsequently these creditors, by an instrument to which T. was not a party, agreed with the trustees to extend the time of payment of their claims. Held, on a bill in equity by the assignees in insolvency of N. against T. and his trustees, that the assignees were entitled to redeem the land from the mortgage on pay- , ment of its value without the improvements; and that the trustees did not stand in the position of bona fide purchasers for a valuable consideration. Held,, also, that the creditors were not necessary parties to the bill. Held, also, that the court would not act on a suggestion, made for the first time in this court, that R. should be made a party, it not appearing that the rights of the plaintiffs as against the defendants could not otherwise be determined.</p>

<p>A person of full age and ordinary intelligence entered the employ of a railroad corporation as a freight truckman, loading and unloading cars in its yard and shifting freight in its freight-houses. After working in this capacity about three years, he was directed to perform, in addition to his regular duties, those of a fireman, from one to three hours a day, upon an engine which was used to shift freight cars in the yard, where there were many tracks, sidings, frogs, and switches, and to make up trains. He had acted as such fireman about twenty times, when, while standing on the footboard of the engine, with his back towards the direction in which it was moving, and waiting for its speed to slacken so that he could get off, he was jolted off, and injured. He had been brought up on a farm, and had ridden but six times in railroad cars. In an action against the corporation, he testified, that the engine was going so fast that he thought it unsafe to get off; that he never got off the engine at any other time when it was in motion, except when it was nearly at a standstill; and that he used to observe a jolting of the engine as he stood in the cab. Held, that the injury was caused by one of the risks assumed by him in his employment; and that the action could not be maintained.</p> <p>If a servant, of full age and ordinary intelligence, upon being required by his master to perform other duties more dangerous and complicated than those embraced in his original hiring, undertakes the same, knowing their dangerous character, although unwillingly and from fear of losing his employment, and is injured by reason of his ignorance and inexperience, he cannot maintain an action against the master for such injury.</p>

<p>Contract on a promissory note for $3000, dated July 31, 2 868, purporting to be signed by Thomas Corey, the defendant’s intestate, payable five years after date to the order of the plaintiff. On the margin of the face of the note were these words: “Given as collateral security with agreement.” Writ dated August 10,1877. The action was originally brought by Amelia H. Costelo; and the plaintiff was allowed to substitute, in place of herself as party plaintiff, the present plaintiff, for her benefit. See 134 Mass. 280.</p> <p>Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The defendant contended that the note produced by the plaintiff was not the note of Thomas Corey, but was forged by the plaintiff, or by his procurement, and that the original note given with the agreement had been paid, and surrendered to Thomas Corey, and that the contract embodied in said note and agreement had been settled and discharged by said Corey in his lifetime.</p> <p>Certain papers purporting to be signed by Thomas Corey were offered by the plaintiff as standards of comparison. As to each of these, S. N. Aldrich, an attorney at law, whose name appeared as an attesting witness on each, called by the plaintiff, testified as follows: “ I knew Thomas Corey. I was acting as his attorney at the time these papers were drawn. I had been his attorney for some years previous. The body of all these papers is in my handwriting, and they passed through my office in the usual course of business. I witnessed the several signatures of Thomas Corey upon these papers. I do not remember seeing Corey sign these papers, but know that I either saw Corey write his name on them all, or that he acknowledged the signature to be his before I attested them.” Three of these papers were conveyances of real estate, and one a discharge of a mortgage. These were under seal, and were acknowledged by Corey before said Aldrich as a justice of the peace. The other paper was a building contract between Corey and one Kirby, and was signed by both parties to the contract, but not acknowledged. To the admission of these papers as standards the defendant objected; but his objection was overruled, and they were admitted.</p> <p>The defendant introduced evidence of experts, and of persons familiar with the writing of Corey, tending to show that the note in suit was not filled out or signed by Corey. Upon the question whether the note was forged by the plaintiff, the defendant offered one Wanton A. Weaver as a witness, who was asked the following questions: “ Do you know anything about his '(Costelo’s) making, by tracing, promissory notes, or notes in imitation of genuine notes?” “Did he between the years 1872 and 1875 tell you anything about making imitations of notes by tracing ? ” “ Did he show you how, by means of a lamp" and the use of a table, he made, by tracing, imitations of people’s signatures, during the same time ? ”</p> <p>All these questions were objected to by the plaintiff (not on account of form), and were excluded. The defendant disclaimed any intention of proving a distinct or substantive offence upon the issue of genuineness.'</p> <p>The defendant produced from the custody of the administrator a small diary of Corey’s, which he offered to show, by the administrator, contained daily entries made in the handwriting of Corey, by which he proposed to show certain entries made by Corey relating to said note and showing payment thereof by Corey. The defendant admitted that this was not Corey’s account-book or book of daily charges, and there was no evidence, except from the dates of the entries themselves, that they were made at the time they purported to be made; but the. defendant contended that it was admissible as a memorandum in the handwriting of Corey, made at the time it purported to be made. Said entries were excluded.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Accounts of a trust estate, kept by the trustee on the ledger of a firm of which he is a member, being the only accounts kept by him during the time they cover, are admissible in evidence in an action against a surety on his bond; and it is immaterial that the entries were made by another, if they were made under the personal direction of the trustee.</p> <p>An account in the form of a probate account, and semiannual accounts of a trust estate, rendered by the trustee to his cestui que trust, with explanatory letters in regard to them, are competent evidence in an action against a surety on the trustee’s bond; and it is immaterial that the accounts were falsified, and that the trustee had disposed of the property with which the accounts charge him.</p> <p>In an action against a surety on a trustee’s bond, the evidence of a partner in business of the trustee, that he deposited a sum named, the proceeds of certain bonds belonging to the trust estate, in a bank to the account of the firm, is admissible.</p> <p>In an action against a surety on a trustee’s bond, the surety is chargeable with a sum received by the trustee as part of the income of the trust fund, which he has not paid over to the cestui que trust, but which he has applied to make up a deficiency in the investment of capital.</p> <p>In an action on a probate bond, the findings of an assessor upon matters of fact will not be revised by this court upon exceptions thereto, if they are established by a fair preponderance of the evidence introduced before him.</p> <p>If a trustee sells securities belonging to the trust estate at a price less than their original cost, and fraudulently appropriates the proceeds, a surety on his bond is chargeable, in an action thereon, with the value of such securities at the time of their sale and conversion, in the absence of evidence that the securities had increased in value after the sale and during the continuance of the trust.</p> <p>If a trustee wrongfully sells securities belonging to the trust estate, and converts the proceeds to his own use, in an action against a surety on his bond interest should be computed on the amount converted from the day it is found to be due up to the day of issuing the execution, without rests.</p>