Volume 140 — Massachusetts Reports

<p>Replevin of certain personal property. Writ dated April 27, 1882.</p> <p>The case was referred to an auditor, who found that neither the plaintiff nor the defendant was the owner of the goods replevied; and that the plaintiff was entitled to the possession of said goods at the time they were taken from its possession, and was now entitled to the possession of the same.</p> <p>Trial in the Superior Court, without a jury, before Bacon, J.5 who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff put in evidence the report of the auditor; and the following facts were also proved or admitted.</p> <p>The plaintiff town organized a fire department in 1871, and in the same year erected a new engine-house. In 1871, fire engineers were appointed by the selectmen of the town, and have thus been annually appointed since, and these fire engineers have duly appointed, from time to time, enginemen composing the company,' of which on April 21, 1882, the defendant was a member. These enginemen have always been paid by the town. In 1881, the duly appointed engineers of the town appointed the defendant, and the other persons who acted with him in removing from the engine-house of the town the goods replevied, as hereinafter stated, to be enginemen for the year beginning May 1, 1881. From 1871 to the present time, the term during which enginemen have been appointed to serve, subject to discharge by the engineers, has begun on May 1 in each year.</p> <p>In 1871 this company was called Brookline Engine Company, No. 1, and consisted of forty-five men; but in 1876 the engineers (the town having adopted steam instead of hand engines) discharged twenty men, thus reducing the number to twenty-five, and they afterwards still further reduced the number of enginemen in this company.</p> <p>Ever since 1871, the town has owned and kept in its engine-house a fire engine. In this building there was provided by the town a room for the use of the enginemen, where they have held their meetings, and which they called their “parlor.” They had their own constitution and by-laws, and kept their own records.</p> <p>The defendant first became a member of the company in July, 1872.</p> <p>The property replevied constituted the furniture of this room, called the “ parlor,” on April 21, 1882, when the company at a special meeting passed the following vote: “Voted to remove the company’s furniture from the 6 parlor ’ to-night, and that it be divided.” In pursuance of this vote, the property replevied was removed from the engine-house the same evening, by the defendant and the other members of the engine company, and taken to the dwelling-house of the defendant, where a portion of it was discovered by the officers of the town, and replevied.</p> <p>At the same meeting of April 21, 1882, an informal vote was taken to ascertain how the members stood on disbanding. A majority of seven were in favor of disbanding, and the others “ were willing to abide by the voice of the majority.” It was then voted to adjourn to April 25.</p> <p>At the meeting of the company held on April 25, 1882, the record of the last meeting was read and approved, and it was “Voted that we disband, it to take effect at 12 o’clock midnight, April 30, 1882; also, if it is the wish of the board of engineers, we will continue to answer the alarms until another company is appointed to succeed the present company.” It was also “Voted that the vote to disband be given to the engineers.”</p> <p>No other meeting of the company was held until May 1,1882, when the new enginemen appointed to succeed the old company met and organized. It further appeared that the company ha,d been in the habit each year of voting in members, and of sending the lists of their members to the engineers for their approval.</p> <p>The furniture mentioned in the writ was purchased, in the spring of 1872, by a committee of the enginemen who then constituted the company, from a fund made up as follows: $125 was paid by the town on February 5', 1872, on the recommendation of the engineers, towards furnishing the engine-house; $700 was raised by subscription by the citizens of the town for the purpose of assisting the engine company in fitting up and furnishing their part of the new engine-house, and added to the fund; and the sum of $100 was furnished by the then existing engine company, being prize money received at a contest with another company.</p> <p>There was also evidence that this fund was further increased by an assessment laid upon the members of the company of that year. All the money raised was put into one fund with the money furnished by the town, and was expended by the committee in the purchase of the furniture. The furniture thus purchased was placed in the room of the engine-house of the town called the “parlor,” and was not removed therefrom until said removal on April 21, 1882, except on one occasion, when it was temporarily removed while the room was being painted, and immediately afterwards returned to said room. It has been used by each succeeding company in said engine-house since it was first bought and placed therein.</p> <p>There was evidence tending to show that the town exercised no control over the furniture except through its enginemen, the members of the company, and did not claim it as its property.</p> <p>On the foregoing evidence, the defendant contended, and asked the judge to rule, that the company was a voluntary association ; that the property replevied belonged to himself and the other persons who constituted the company on April 21, 1882; and that they had the right, having voted to disband, to remove the property and divide it among themselves.</p> <p>The judge declined so to rule; and ruled that the company was not a voluntary association, inasmuch as the members, though elected by the company, were subject to approval by the engineers of the town, an"d were paid by the town; that the company had no right to remove and divide the property; that, when the company dissolved, the property went to the town in trust; and that the town was entitled to recover; and ordered judgment accordingly. The defendant alleged exceptions.</p>

Replevin of certain personal property. Writ dated June 2, 1882. The plaintiffs, nineteen in number, are described in the writ as members of the Washington Engine Company of Holbrook.

Tort for personal injuries occasioned to the plaintiff, on November 27, 1883, by falling down a flight of stairs on the outside of, and attached to, the building known as the City Hospital, in Boston.

<p>A person who executes as surety a prohate bond in blank, and entrusts it to his principal to be filled in and delivered to the obligee, is bound by the instrument as delivered, although the principal, before delivery, inserts in the bond a larger penal sum than that agreed upon between him and the surety, if the obligee has no notice, from the face of the bond or otherwise, of the unauthorized act of the principal.</p>

<p>Replevin, by the assignee in insolvency of Lawrence B. Norris, of a lot of machinery. The case was sent to an auditor, whose report was in substance as follows:</p> <p>The plaintiff claims title to the replevied articles as a part of the personal estate of the debtor. The defendant is the owner of the real estate and building in which the replevied property was situated, and contends that the machinery was part of the realty, and passed to him by the deed by which he acquired title.</p> <p>The real estate, consisting of about twenty-five thousand feet of land in Woburn, with buildings thereon, was conveyed, on November 29, 1870, by James Tweed to A. J. Parker. There was no machinery in the building at the time of this purchase. Parker on the same day mortgaged the property to Tweed for $3000.</p> <p>He put in an engine and boiler, and necessary shafting, and the following machinery: one planing machine, one moulding machine, one jointing saw, one combination saw, one jig saw, and one turning-lathe. These are a portion of the articles replevied. Parker occupied the building as a planing-mill and wheelwright’s shop.</p> <p>On June 1, 1871, Parker gave a second mortgage for $1500 to James Tweed, of the same real estate. On September 18,1875, Parker gave a third mortgage for $3000 upon the real estate to said Lawrence B. Norris. In none of the above conveyances is any reference made to machinery.</p> <p>On September 18, 1875, A. J. Parker, with John F. Parker, described as his copartner, executed to said Norris a mortgage for $3000 of the personal property on said real estate, namely: “ One1 planing machine, one moulding machine, one stationary engine and boiler, and all other machinery and tools that are now in our shop, situate on the westerly side of Prospect Street, in the Centre Village of said Woburn.” This mortgage was duly recorded in the office of the town clerk of Woburn, and was subsequently foreclosed and sold; and by conveyances under said sale came to said Norris.</p> <p>Norris took possession under the mortgage of September 18, 1875, and foreclosed and sold the real estate to John W. Johnson, by deed dated June 22, 1877. On the same day Johnson conveyed the real estate to Norris.</p> <p>In March, 1878, Norris formed a copartnership with R. C. Huntress and W. B. Beatty, under the style of R. C. Huntress and Company. He put in a new foundation for the planer (which is hereinafter described) and added the following machinery : one cutting-off saw, one fitting saw and matcher. This firm occupied the mill for planing and box-making until September 1, 1878, when it dissolved. Norris then took the business in his own name, and from time to time, down to 1882, put in the other machinery named in the writ. He continued to use the mill as a planing and box mill, with a sign on the outside, “ Planing and Moulding Mill,” which sign continued on the building till its purchase by the defendant.</p> <p>Early in 1883, Norris gave to one Samuel M. Barker a bill of sale of the above-described machinery, whereupon involuntary proceedings in insolvency were commenced against Norris, and on January 18,1883, the plaintiff was appointed assignee. The property was not removed from the building by Barker, but suits were instituted by the plaintiff against Barker, which were adjusted, and on May 11, 1883, Barker conveyed his title in the machinery to the plaintiff. The machinery remained in position in the building until replevied, and until after a view had by the auditor in 1884.</p> <p>On April 30, 1883, Sarah H. Tweed and Henry Tweed, as executors of the will of James Tweed, deceased, under the power of sale in the mortgage from Parker to Tweed, dated June 1, 1871, and in execution of said power, conveyed the real estate to the defendant Park.</p> <p>The machinery was in the mill at the time of the sale to Park, affixed to the building as hereinafter described. Park entered into, and has since retained,' possession of the real estate. There was no evidence of any declaration at the sale as to whether or not the machinery went with the building, and no reference to it in the notice of sale or in the deed to Park. The defendant contended that, by his purchase of the real estate, he acquired the title to the machinery, and refused to deliver it to the plaintiff upon his demand.</p> <p>The following is a description of the machinery replevied, and a statement of the manner in which it was affixed to the building:</p> <p>1. Planer in the basement of the mill, and fastened by four bolts or lag screws, one through each foot, into a foundation of masonry sunk about two feet into the earth, with plank on top; also by two bolts or lag screws, through bearing of planer, into the floor of the basement, which is laid snug to the foundation; operated by a belt and pulley; the floor timber cut about one sixteenth through to accommodate the pulley.</p> <p>2. Moulding machine in basement beside the planer, and fastened to floor by four bolts or lag screws, one through each foot; also fastened, by two bolts, to the support of the building; operated by belt and pulley, to accommodate which the floor timber was cut about one sixteenth.</p> <p>3. Combination saw, also in basement, near the moulding machine, and fastened to the floor by four bolts or lag screws, one through each foot; operated by belt and pulley; one of the supporting timbers was cut about one eighth through to accommodate the belt and shipper.</p> <p>4. Wood-turning-lathe, als'o in basement, on the south foundation wall of building; fastened by an iron rod through the power end into a large stone in the foundation; also spiked to the floor by spikes through each of six legs; operated by belt and pulley, to accommodate which a floor timber was cut one fourth through.</p> <p>5. Jig saw in the basement, near the lathe, fastened by two bolts to sill of building and two bolts through floor joist above; also nailed through supports; operated by belt and pulley, to accommodate which a floor timber was cut one fourth through, and a floor joist cut two thirds through.</p> <p>6. Upright drill in the shop on second floor of mill, fastened to floor by three bolts or lag screws through foot of drill; operated by belt and pulley. Four holes cut through floor and one through partition.</p> <p>7. Small upright drill in same room with No. 6, and fastened to floor by three bolts or screws through foot of drill; operated same as No. 6.</p> <p>8. Splitting or fitting saw on the second floor of mill; fastened by cleats and nails, and operated by belt and pulley; belt running through two holes cut in floor.</p> <p>9. Splitting or fitting sa.w on same floor with No. 8; fastened to floor by four bolts or lag screws; operated by bélt and pulley; floor cut in two places, and floor timber cut to run belt.</p> <p>10. Splitting or fitting saw, same floor with No. 8; fastened to floor by nails through legs; operated by belt and pulley, with belt running through floor through two holes cut for that purpose.</p> <p>11. Squaring-up saw, with treadle, on second floor; fastened by four bolts or lag screws, one through each leg; also two bolts or screws through hangers, and braced, bolted, and nailed by a table to floor; belt and pulley, belt running through two holes cut in floor.</p> <p>12. Squaring-up saw, with swing, in second floor; hangs from floor joists of third floor, to which attached by four bolts and nails; operated by belt which runs through floor in two holes cut, and a floor timber cut one third through.</p> <p>13. Grooving or matching machine on second floor; fastened to floor by two bolts from two legs; run by belt, for which two holes were cut through floor.</p> <p>14. Grooving or matching machine, near No. 13; fastened to floor by four lag screws, one to each foot of machine; run by belt, for which two holes were cut through floor.</p> <p>15. Grooving or matching machine, on third floor; fastened to floor by nails; operated by belt running through two holes cut in floor.</p> <p>16. Splitting saw, on third floor; fastened to floor by four bolts; operated by belt running through floor, for which two holes were cut, and a hole cut through floor to accommodate a shipper.</p> <p>17. S. A. Wood planer, on third floor; fastened to floor by four bolts or screws; operated by belt running through two holes cut in floor, and another hole cut for the shipper.</p> <p>18. Resawing machine, on third floor; fastened to floor by nails, and cleats fastened around legs; operated by belt running through two holes cut in the floor, and another hole cut for a shipper.</p> <p>19. Dovetailing machine or locking machine, on third floor; fastened to floor by four bolts or lag screws; operated by belt; two holes cut through floor, and timber brace cut one fourth through.</p> <p>20. Sand-paper machine, on third floor; fastened to floor by nails and cleats; operated by belt and pulley, running through two holes cut in floor.</p> <p>The report concluded as follows: “ Upon all the evidence, I report that the title to the replevied property was in the plaintiff, and that he is entitled to recover the same.”</p> <p>After the auditor’s report was filed in the Superior Court, it was agreed that it might be taken as an agreed statement of facts.</p> <p>The case was then heard, and a judgment was ordered for the plaintiff. The defendant appealed to this court.</p>

<p>A testator by his will gave to his son J. a certain sum “ to be held in trust as hereafter directed,” and to the three children of J., naming them, each “ one hundred dollars as hereafter directed; ” appointed a certain person trustee to hold the sum of money given to J. so “ that he shall have no right to demand any part of said legacy; ” ordered the trustee to grant to J. such aid and assistance as his situation might require until the whole sum was expended, and, upon his decease, whatever remained was to be “ equally divided among and between his children then living; ” empowered the trustee, upon being satisfied that J. would take care of himself and his property, to pay over the whole sum to J., and thus discharge himself as trustee; and directed the trustee to take the full care of J.’s "children's legacy until they arrive to a legal age to receive it; if they should need it sooner, then pay it over to or for them with the interest it has gained or received.” By a codicil to his will, the testator gave to J.’s children, naming them, a certain parcel of real estate, “ which J. now has as his homestead; ” provided that, if there were af terborn children of J., they should receive equal shares with the others; and further provided as follows : “ This estate I give in trust the same as mentioned in my aforesaid will; and I hereby order and direct said trustee to not allow any account or claim against the said J. or his heirs’ legacies previous to the date of this codicil, from my estate, but to see that the full amount of the legacy to him and his heirs be saved for them, the trustee to be fairly paid and to receive the same from said legacies, and to have the same duties and power in this codicil as given in said will. Held, that the use and occupation of said real estate was not given to J.; and that the trustee was entitled to charge the trust estate held for J. with the rent of the real estate.</p>

<p>Tort. The declaration contained two counts. The first was in the nature of trover for the conversion of certain boards and building material. The second was in the nature of trespass. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>A mortgagee of land executed and acknowledged an assignment in blank of the mortgage, and orally authorized his son to find a purchaser, write in the latter’s name as grantee, and deliver the assignment. The son did so, the assignee not knowing that the son was acting as agent in any respect except to deliver the assignment. Held, that the assignment was valid.</p>

<p>Contract upon a policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, against loss by fire, for one year from March 15, 1883. The amounts and the property insured were as follows: “ $500 on bowling alleys, balls, and pins; $300 on pool table, pool balls, and cues; $100 on saloon furniture and fixtures; $50 on stock in trade, chiefly cigars and ginger ale; all contained in the second story of Knapp’s frame building, situate on the east side of Main Street, opposite Belmont Street, Brockton, Mass.”</p> <p>Trial in the Superior Court, before Aldrich, J., who reported the case for the determination of this court, in substance as follows :</p> <p>It appeared that the property described in and insured by said policy was owned by Warren R. Spurr and Edward W. Spurr, until February 28, 1882, when they agreed to sell the same to Herbert A. and Edwin R. Hinckley, and received from Herbert A. Hinckley, who was the brother of the plaintiff, the following written instrument, signed and sealed by him.</p> <p>“ Know all men by these presents, that I, Herbert A. Hinckley of Barnstable, in the county of Barnstable, in the Commonwealth of Massachusetts, have received and hired of Warren R. Spurr and Edward W. Spurr of Brockton, in the county of Plymouth and Commonwealth aforesaid, the following described articles of furniture, namely: four bowling alleys ; four sets of tenpins, bottle and straight; thirty-nine balls; one rifle gallery; two rifles and two targets; fifteen chairs; one pool table; sixteen pool balls ; one clock; two show-cases; one counter; twelve cues and cue racks; one ball rack; thirty lamps and fixtures; one large five-gallon oil can; pool table cloth and brush; and all other fixtures and implements whatsoever, including two stoves, in second story of the building owned by George L. Knapp, on the east side of Main Street, in said Brockton, used as a bowling alley.</p> <p>“ For the use of the above-mentioned articles, and as a rent for the same, I have this day paid to the said Warren R. Spurr and Edward W. Spurr the sum of two hundred and fifty dollars, and promise further to pay to them and their legal representatives the sum. of fifty dollars per month, (the first payment to he made on the 1st day of April next,) until such time as the sums so paid and to be paid by me shall amount to the sum of eleven hundred and twenty-five dollars, at which time said rent shall cease, and the said articles become my absolute property. But in case of failure to pay said rent as aforesaid, the said Warren R. Spurr or Edward W. Spurr may, without being deemed guilty of any trespass or tort, and without thereby rendering themselves liable to refund any sums received by them as rent as aforesaid, enter any house or place where said articles may be, and take possession of and remove said articles therefrom. And I further agree that, so long as said rent shall be payable as aforesaid, I will not injure, sell, mortgage, or relet the said articles, or remove the same from said building, and that in case of failure to pay the said rent, I will on demand return the said articles to the said Warren R. Spurr or Edward W. Spurr, or their legal representatives.”</p> <p>Said Herbert, at the same time, signed and delivered to the Spurrs a promissory note, dated February 28, 1882, by which he promised to pay them $875 in the manner following: “ $50 thereof monthly, until said principal sum is fully paid, the first payment to be made on the first day of April next, with interest at six per cent per annum, payable monthly.” The note also contained this clause: “ This note is given to secure a furniture lease — instalments — between the parties hereto, of even date herewith, interest not as payment of the same.” On the back of the note were indorsements of $50 and interest each month from April 1,1882 to April 1,1888, both inclusive. The Spurrs thereupon delivered said property to Herbert A. Hinckley and the plaintiff, who at the same time paid the Spurrs the sum of $250 in cash.</p> <p>The plaintiff also put in evidence two proofs of loss, in which he stated that he was the owner of the insured property.</p> <p>The plaintiff further put in evidence tending to show that, after the fire hereinafter referred to, the Spurrs began an action against him to recover the amount due them on account of said property, by a trustee process, wherein the defendant was summoned as trustee, but that, after service on the trustee, said writ was abandoned and never entered in court.</p> <p>The plaintiff called as a witness Warren R. Spurr, who testified, that he knew the property described in the policy, as he and his son, Edward W. Spurr, bought it from one Keith, about Christmas, 1881, for the sum of $1000; that about February 28, 1882, he and his son sold the property described in the policy to Herbert A. and Edwin R. Hinckley, by the furniture lease aforesaid, and that it was afterwards used by them; and that on or about said date he and his son received from Herbert A. Hinckley the written instrument and note above referred to; that since February 28, 1882, several payments had been made to him and his son upon the note, as shown by the indorsements thereon, all but two or three of which had been paid by the plaintiff, and that about $200 was due him and his son at the time of the fire, August 6, 1883; that he saw the fire, and saw afterwards, on the morning following the fire, on the premises occupied by the plaintiff, a partially burned fragment of the billiard table; that some time after February 28, 1882, (he could not tell exactly when,) he was present at a conversation between Herbert A. and Edwin R. Hinckley, when Herbert said he was sick, and that he wished to sell out his interest in the property, described in the furniture lease, to Edwin; that at the time of this talk there was an instalment of money due him and his son; and that, after Herbert said he was sick, Edwin asked him (Spurr) if he would give him time on the instalment then due, and he said he would.</p> <p>The plaintiff testified as follows: “ At the date of the policy I was the owner of the property described in and insured by the policy. I bought it from Herbert in June, 1882. Herbert said, in the first week of June, 1882, that he was sick, and wanted to sell out the business to me. There was then an instalment due Spurr, and he was present at the conversation. I asked Spurr if he would give me time, and he said he would give me till the following Saturday. I paid Spurr the instalment then due, and Herbert had nothing to do with the property after this conversation, or with the place. I am sure the conversation took place during the first week of June, 1882. Herbert said he was sick, and had rather lose what he had put in than stay there, and said he did not suppose I would want to keep the place going, as I had outside business. I promised to save Herbert harmless from the note given to the Spurrs, and take the property off his hands and pay him what was right; and when we reckoned what he had drawn out, there was about $6 due him, and I paid him. I had possession and ran the business after that. When I last saw the property, on the Saturday before the fire, it was in Knapp’s Block in Brockton. I ran the business there, from the first week of June, 1882, until the last week of June, 1883. A license was issued by the mayor and aldermen of Brockton, to Herbert and myself, on June 12, 1882. This license expired May 1, 1883. I applied for a new license in May, 1883, but none was issued to me. There was no playing of bowls, billiards, or pool there, after the last week of June, 1883, to my knowledge. I was not in Brockton when the fire took place, but was in Barnstable. There was some $175 and interest due the Spurrs upon the furniture lease and note, at the time of the fire. In the last week of June, 1883, I was notified that no license would be granted, and I closed my place. The police officer who notified me had not got to the bottom of the stairs before my place was closed, and I did no business in the place after that. My brother Herbert died in October, 1882. I paid the money to Herbert when I bought him out, on June 1, 2, or 3, 1882. I am sure I bought him out and made this payment during the first week of June, 1882. After the first week of June, 1882,1 ran the place for hire, gain, or reward until the last week of June, 1883, when I stopped. Herbert had no interest in the place after the first week of June, 1882. Herbert had the lease. It was never transferred to me. I was not in Brockton at the time of the fire, but am told it occurred on August 6, 1883. ”</p> <p>Edward W. Spurr testified that the property described in the policy of insurance, formerly belonged to his father and himself together, and was sold to Herbert A. and Edwin R. Hinckley; but the lease was made out in the name of Herbert.</p> <p>The plaintiff then put in evidence a license from the mayor and aldermen of Brockton, dated June 12, 1882, authorizing Herbert A. Hinckley and Edwin R. Hinckley to keep four bowling alleys and one pool table on the second floor of Knapp’s Building, in Brockton, until May 1, 1883.</p> <p>The plaintiff admitted that from the first week in June, 1882, he ran the bowling alleys and the pool table and other property described in the policy, in connection with a shooting gallery in Knapp’s Block in Brockton, for hire, gain, and reward; that he had no license for the keeping of said pool table and said bowling alleys for hire, gain or reward, except the license above referred to ; and that for the period after May 1, 1883, he had no license whatever.</p> <p>The plaintiff produced evidence which would warrant the jury in finding a total destruction by fire, on August 6, 1883, of the property insured, within the terms and meaning of the policy declared on.</p> <p>The defendant offered no evidence, but at the conclusion of the plaintiff’s evidence requested the presiding judge to rule that, upon the whole evidence, the plaintiff was not entitled to recover. The judge so ruled, and directed a verdict for the defendant.</p> <p>If the ruling was correct, judgment was to be entered upon the verdict; otherwise, the verdict to be set aside and a new trial granted.</p>

<p>Bill in equity, filed August 25, 1879, to redeem a parcel of land in the town of Florida, in this Commonwealth, from a mortgage held by the defendant. The case was heard by W. Allen, J„ on the report of a master and exceptions thereto, and reserved for the consideration of the full court. The facts appear in the opinion.</p>

<p>Contract, upon an account annexed, for money had and received. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows:</p> <p>The defendant is, and for the four years preceding has been, one of the county commissioners of Bristol. The sums of money set forth in the account annexed to the declaration were paid to the defendant by Charles D. Burt, who, at the time of making said payments, was the master of the house of correction for said county. These sums of money were paid by Burt on account of said county, and were by him charged to the county; and he was allowed said sums in the settlement of his accounts with the county treasurer as for “expenses of selling shoes,” and said amounts were paid to him by the treasurer out of the funds of the county.</p> <p>Burt employed the prisoners in said house of correction in manufacturing shoes, and employed the defendant, on account of his knowledge of the shoe trade, to go to Boston and other places to sell the shoes so manufactured, claiming the right so to employ him under the authority of the Pub. Sts. c. 220, § 56, requiring him, as such master, to cause the articles manufactured by the prisoners to be disposed of to the best advantage. It was necessary for Burt to employ some one, as his own duties were such as to prevent him from personally attending to the matter. The services so rendered by the defendant were useful to the county, and assisted the master materially in disposing of the shoes so manufactured to the best possible advantage, and the arrangement was an economical one for the county.</p> <p>The sums in question included no allowance whatever for the time or the services of the defendant, but only his actual travelling expenses while so employed by Burt in selling shoes.</p> <p>While so engaged, the defendant was performing no service for the county in his capacity of county commissioner or otherwise, unless his employment by Burt was such a service. The sums so paid to the defendant were entered on the books of Burt, and allowed in his accounts with the county treasurer, as paid to the defendant individually, and not to him as county commissioner. The defendant, Burt, and the county treasurer acted under the advice of the then Attorney General, in charging, allowing, and paying said sums. The defendant has received the whole amount of salary due him as county commissioner, besides, and not including, the sums named in the account annexed.</p> <p>If, on the foregoing facts, the defendant had a right to receive and retain the sums so paid him, in addition to his salary, judgment was to be entered for him; otherwise, judgment for the plaintiff.</p>

Writ oe dower. Trial in the Superior Court, before Brigham, C. J., who ruled that the demandant was entitled to her dower; directed the jury to return a verdict accordingly; and reported the case for the determination of this court. The facts appear in the opinion.

<p>An executor, who is also residuary legatee, and who has given a bond to pay debts and legacies, cannot be sued personally, on a judgment recovered against him as executor, in an action by a creditor of the testator.</p>

<p>Property of the defendant in an action was attached more than four months before the institution by him of insolvency proceedings. He was defaulted pending such proceedings. The plaintiff thereupon suggested these proceedings, and, before the St. of 1885, c. 59, took effect, obtained a special judgment against the property attached. Execution issued, reciting the judgment for the plaintiff for the amount of the debt and costs, to be levied only on the property attached. The execution was returned satisfied in part only. Held, that the judgment was a final judgment; and that the plaintiff was not entitled to have a further judgment entered, or process issued, for the unsatisfied balance of his debt.</p>

Bill in equity, by the executors of the will of Charles L. Haley, against the Boston Belting Company, John G. Tappan, the assignees in bankruptcy of said Tappan, Elisha S. Converse, the treasurer of the Boston Belting Company, William H. Furber, its manager and clerk, William Lowry, and Edward F. Lowry.

Bill in equity, filed August 22, 1883, to restrain the erection of a building in violation of the provisions of a deed, and to compel its removal or alteration. The case was heard, and reserved for the consideration of the full court, by Devens, J., upon the following agreed facts: In 1872, the plaintiff was the owner of a large lot of land in that part of Boston formerly Roxbury, and bounded in part by Clifford Street, Warren Street, and Woodbine Street.

Tort for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. Trial in the Superior Court, before Mason, J., who ruled that there was no evidence for the jury, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>A tenant in fee simple of land, subject to the life estate which the widow of at intestate, without issue, has, under the Gen. Sts. c. 90, § 15, in an undivided halj thereof, may maintain a petition for partition against the widow, as to so mucl, of his interest as he has in possession; and the court may, under the Pub. Sts c. 178, § 65, order the land to be sold.</p>

Tort for personal injuries occasioned to the plaintiff by an alleged defect in A Street in the defendant city. Trial in the Superior Court, before Barker, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Under the Pub. Sts. c. 112, § 125, authorizing a highway or town way to he laid out across a railroad previously constructed, a footway may be laid out.</p>

Bill in equity, filed September 16, 1882, by the trustee under the will of Samuel Goddard, prayipg for instructions as to the construction of the will.

<p>Bill in EQUITY, by the administrator with the will annexed of the estate of Daniel L. Gibbens, to obtain the instructions of the court as to the construction of the will. Hearing before Devens, J., who reserved the following case for the consideration of the full court.</p> <p>The will of Daniel L. Gibbens, who died on August 16, 1853, contained the following provisions :</p> <p>“ I give to my wife, Mary B. Gibbens, the use of all my household furniture, plate, pictures, boobs, and utensils; also all the family stores, which shall be in the house at the time of my decease, and destined for family maintenance. All such articles as are not consumed in the use, and shall remain in existence at my wife’s marriage or decease, shall then go to my children, they to share the same equally. I also devise and bequeath to my said wife, to hold during her widowhood, all my estate, real, personal, and mixed, upon the trust, and for the intent and purpose, that by and from the net income and produce thereof she may maintain herself and our family as now composed, and a,Ford a home to those of my unmarried daughters who shall desire to join the family hereafter.”</p> <p>“In case my said wife shall marry after my decease, then upon such event happening she shall receive only one third part of the net income of my real estate, and one fourth part of the net produce of my personal property; the residue of such income and produce shall thereafterwards, during the continuance of my wife’s life, be equally distributed to and among my children.</p> <p>“ At the decease of my wife, all my estate, real and personal, shall go to and be equally divided among my children, the issue of a deceased child standing in the place of the parent.”</p> <p>A subsequent clause of the will gave the widow power to sell certain real estate; directed that the proceeds should be invested, the income to be taken by the widow for the use of herself and family; and provided that “ the capital sum, at her death, is to be equally distributed among my children.”</p> <p>The testator had been twice married. He left a widow and nine children surviving him, four of whom were by his first wife and five by his second wife.</p> <p>On April 11, 1858, Harriet L., one of his children by his first wife, died. By her will, she left the bulk of her property to the children of her father by his first marriage. Of this will, Joel Wheeler, one of the defendants, was appointed executor.</p> <p>The widow of Daniel L. Gibbens died on January 9, 1884. The estate of Daniel L. consisted of money and personal property, and of real estate. By an agreement of the parties, the real estate has been sold, and the proceeds, except a sum of money equal to the share which would have come to Harriet L. had she survived the widow of the testator, have been paid over.</p> <p>The children of the first marriage contended that Harriet L. took a vested interest in the estate of her father; and that one ninth of the property should be paid to her executor. The other children contended that her interest was contingent upon her suiwiving the widow of the testator.</p>

Tort for a nuisance, namely, the maintenance and use of a steam-engine, boilers, and machinery for generating electricity for lighting purposes at the defendant’s works on Middle Street in Lowell, and within five hundred feet of the plaintiff’s dwelling-house. Writ dated November 22, 1883. The defendant justified under a license from the mayor and aldermen of. Lowell.

Tort for a nuisance, namely, the maintenance and use of steam-engines, boilers, and machinery for generating electricity for lighting purposes at the defendant’s works on Middle Street in Lowell, and within five hundred feet of the plaintiff’s dwelling-house. Writ dated April 24, 1884.

<p>The owner of land mortgaged it to A., and then mortgaged it to B., who had notice of the earlier mortgage, and who recorded his mortgage before the mortgage to A. was recorded. After both mortgages were recorded, B. assigned his mortgage to C., who had no actual notice of the mortgage to A. Held, on a writ of entry by A. against C., that C. had the better title to the land.</p>

Bill in equity, originally brought by Mary E. Jenks, and prosecuted by the executor of her will, against the defendant as administrator of Sarah Jenks, and also in his personal capacity, to compel him to indorse a promissory note, and to pay the amount due thereon to the plaintiff. Hearing before Devens, J., who reserved the case for the consideration of the full court. The facts appear in the opinion,

<p>A testator, by his will, after expressing the hope that one or both of his sons would carry on a manufacturing business formerly carried on by his father and subsequently carried on by himself, and reciting that his son T. was a minor, gave all his manufacturing property to A. and two others, in trust “to continue and carry on without interruption, till my son T. shall arrive at the age of twenty-one years, the manufacturing business now carried on by me, in the same general manner said business is now carried on, taking up and continuing said manufacturing business as the same shall be found at my decease.” At the time of the testator’s death, it had long been his habit to consign about half the goods of his manufacture to a firm of which A. was a member and in which he had a certain share of the profits, allowing the firm commissions and guaranty on sales; and the trustees continued to do the same after the testator’s death. The testator was a member of this firm; and, by his will, his estate remained interested in it for some time after his death. Held, that a charge for commissions and guaranty on sales might be allowed to said firm after the testator’s death; and that A. might be allowed his share of such charge.</p>

Tort against Betsey Kimball and John A. Bond. Writ dated November 23, 1880.

<p>Under the Pub. Sts. c. 102, §§ 12, 16, an innholder is, in the absence of an express contract to the contrary, liable for a loss by theft of the property of his guest, although the guest knowingly fails to comply with a reasonable regulation of the inn, if the loss is not attributable to the non-compliance with such regulation.</p>

Indictment for an assault upon one Fanny Hill, on March 22, 1885. at Northampton. At the trial in the Superior Court, before Barker, J., there was evidence tending to show the following facts : About two years before the time of the alleged assault, the defendant worked for J. B. Parsons, in Northampton, and occupied a bed-room in his house. At the time of the alleged assault, Patrick Rockett, a workman for Parsons, occupied said room.

Indictment charging the defendant with burning, on June 22, 1882, a certain building, owned by one Joseph Cushing, situate in Fitchburg, and used by the defendant as a candy manufactory.

Tort for injuries to the plaintiff’s horse occasioned by a defect in a highway in the defendant town.

Tort for the conversion of a railroad car. Trial in the Superior Court, without a jury, before Barker, J., who allowed a bill of exceptions, in substance as follows: The car in question was, at the time of the alleged conversion, owned by the Grafton Centre Railroad Company, and was then, and for a long time previously had been, part of the rolling stock of that company in actual use on its track, and has ever since remained there.

<p>Writ of entry to recover a parcel of land on Furnace Street, in North Adams, being that marked by the letters A, B, C, and D, on the plan printed in the margin.* Plea, nul disseisin. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared that Benjamin F. Robinson had conveyed nine adjoining lots situated on the west side of Furnace Street to different persons, and, among others, to the demandants, and to the tenant’s grantors. The demandants put in evidence all the deeds of these nine lots, in chronological order, against the objection of the tenant. By the description in the deeds, it appeared that the first lot conveyed was the extreme northern one, which began at an elm tree, (which tree as a monument was fixed and certain,) thence by a line running south on said Furnace Street (the boundaries of which were not in dispute) four rods, and thence by courses and distances to the place of beginning. The lot next conveyed was the one next south, and began at the southeast corner of 'the lot first conveyed, and ran south on Furnace Street four rods, to a contemplated street two rods wide. The third lot conveyed began at the southeast corner of said contemplated street and Furnace Street, and ran south on the latter street four rods, and thence by courses and distances to the place of beginning. The description in the remaining deeds, down to and including the deed of the O’Hearn lot, dated November 15, 1875, and referred to as a boundary in the tenant’s deed, each began at the southeast corner of the lot next north, and ran south four rods on said Furnace Street, and thence by courses and distances to the place of beginning.</p> <p> </p> <p>The demandants introduced these deeds to fix the southeast corner of the O’Hearn lot, referred to in the tenant’s deed, and contended that the southeast corner of that lot became certain by measuring south on Furnace Street from said elm tree thirty rods, the combined distance on Furnace Street of the lots and the width of said contemplated street, as appears by the description in the deeds and by Brown’s plan hereafter referred to.</p> <p>The demandants put in the evidence of F. S. Smith, a civil engineer, and a plan made by him, to fix the southeast corner of the O’Hearn lot at a point thirty rods from said elm tree. On cross-examination, Smith testified, against the demandants’ objection, that certain modern fences now on said lots corresponded with the southeast corner of the tenant’s lot as claimed by her, and not according to the plan and survey he had made, starting from said elm tree. The only monuments referred to in these deeds were the contemplated street, the elm tree, and the southeast corners of the lots.</p> <p>The demandants then introduced the deed of Benjamin F. Robinson to William Harrington of the extreme southern lot conveyed, dated March 16, 1874, which contained the following description: “ Commencing at the southeast corner of 'land I sold H. E. Bailey, thence southerly on the old Notch Road four rods; thence westerly eight rods; thence northerly’ lour rods, to land I sold Bailey; thence easterly on Bailey’s land to place of beginning.” Also the deed of said Robinson to Richard and Eliza Murphy, dated April 26, 1879, containing the following description: “ Beginning at the northeast corner of land of William Harrington,. thence northerly on the road four rods, to land of E. O’Hearn; thence westerly eleven and a half rods on said O’Hearn’s line; thence southerly four rods, to land of William Harrington; thence easterly on said William Harrington’s north line nine rods and three links, to the place of beginning.” After the conveyance to Richard and Eliza Murphy, Harrington reconveyed to said Robinson the lot which Robinson had previously conveyed to him.</p> <p>The demandants then put in evidence their deed from said Robinson, dated February 14, 1881, containing the following description: “ Commencing at the southeast corner of land of Richard and Eliza Murphy, thence southerly on the Notch Road four rods; thence westerly eight rods; thence northerly four rods, to land of Richard and Eliza Murphy; thence easterly on land of Richard and Eliza Murphy, to place of beginning.” Also the deed of S. Proctor Thayer to the tenant, dated March 8, 1884, containing the following description: “ Beginning at the northeast corner of land of John Barrett and wife, thence northerly on the road four rods, to land of E. O’Hearn; thence westerly eleven and a half rods on said O’Hearn’s land; thence southerly four rods, to land of said Barrett and wife; thence easterly on said Barrett and wife’s north line nine rods and three links, to the place of beginning.”</p> <p>The demandants offered to prove that if there ever was a conveyance from Robinson of the land next north of the Harrington lot to H. E. Bailey, such conveyance had never been recorded; which fact was admitted by the tenant.</p> <p>The demandants contended that the northeast corner of the Harrington lot and the southeast corner of the Murphy lot was identical with the northeast corner of the Barrett lot and the southeast corner of the tenant’s lot, and-that both corners were at one and the same place, and both dependent on the southeast corner of the Bailey lot, and therefore uncertain, because there was no way of ascertaining the true southeast corner of the Bailey lot, in the absence of any knowledge as to what land was sold to Bailey; and that, as said southeast corner was in doubt, the only way to fix the northeast corner of the demandants’ lot and the southeast corner of the tenant’s lot was to measure back south on Furnace Street four rods from O’Hearn’s line, referred to in the tenant’s deed as a boundary which was fixed and certain, and there to fix a point as the boundary between the lots of the demandants and the tenant.</p> <p>The tenant contended that the southeast corner of the Bailey lot was not in doubt, and that it was four rods north of the stone wall hereinafter referred to, and called William Harrington, who testified that at the time he took his deed from Robinson a stake was pointed out to him by the agent of the grantor, thereto specially authorized, as the northeast corner of his lot and the southeast corner of the Bailey lot, and that said stake was four rods from the stone wall and on the line of Furnace Street; and also put in the evidence of John C. Bailey, then occupying the third lot north of the Harrington lot, that, at the date of the Harrington deed, he knew of said stake being at the place testified to by Harrington. This evidence was admitted, against the objection of the demandants.</p> <p>The tenant proved by Robinson, that he had given to H. E. Bailey a bond for a deed of the land lying next north of the Harrington lot, and that said bond was probably among his papers, but he could not tell until he had looked them over. The tenant offered no evidence as to the description in said bond, and the demandants were ignorant of it. The tenant then asked Robinson what was the southern boundary of the Harrington lot; and, against the objection of the demandants, the witness stated that it was the stone wall. The tenant then introduced a plan, not referred to in any of the deeds, made by F. P. Brown in 1872, and asked said Robinson if that was a plan of his lots. The demandants objected to the question and to the introduction of the plan, but the objection was overruled, and the witness stated that it was a plan of his lots. Against the objection of the demandants, the tenant then asked the witness which loti ás marked on Brown’s plan, he sold by said bond to Bailey. The witness answered, “ Lot No. 2 on the plan.”</p> <p>The tenant, against the demandants’ objection, then put in the evidence of John C. Bailey and Daniel Manning, who occupied Lots 4 and 5, tending to show that a division fence was erected by them between said lots, in the place where a corner stake was pointed out to John C. Bailey by Robinson as the northeast corner of the John C. Bailey lot, on said street, and to correspond with it, at the time he went into the occupation thereof under a written agreement to purchase, and prior to the date of the O’Hearn deed, which fence would correspond with the division line between the demandants and the tenant as claimed by the tenant.</p> <p>The tenant then called William Harrington, who testified, against the demandants’ objection, that at the date of his deed, March 16, 1874, and directly after the delivery thereof on the same day, he went with the agent of the grantor for that purpose, who pointed out to him a stake as the northeast corner of the Harrington lot and the southeast corner of the Bailey lot, and that it was at the place where the tenant now claims her southeast corner to be, and it remained there until 1879. It appeared that H. E. Bailey was, during 1873 and 1874, in occupation of the land described in the bond to Bailey; but what were the boundaries called for by the description in the bond could not be shown, and the tenant made no offer to show the same.</p> <p>On the part of the demandants there was evidence tending to show that the deed to William Harrington, although dated March 16, 1874, was not in fact made or delivered until September 18, 1874; and that down to September 18, 1874, Harrington had no conveyance of, or bond or agreement for, the premises described in said deed, but from March 16, 1874, to September 18, 1874, did have an agreement for the purchase of one of the other lots, and for that only.</p> <p>It appeared also that the grantor conveyed none of these lots until nearly two years after Brown’s plan was made. The demandants introduced evidence, which was not controverted, that the grantor did not convey the lots according to the Brown plan, but began at an elm tree ten and a half feet north of the northern boundary of said lots as plotted on said plan. A contemplated street was marked on Brown’s plan, eight rods south from the northern boundary of said lots as marked on said plan, and by said plan it runs westerly nearly at right angles from said Furnace Street.</p> <p>The description in the deed of the extreme northern lot to Dennis Buckley, dated February 24, 1874, beginning at the elm tree, was as follows: “ Beginning at the southeast corner of B. F. Hathaway’s land on the old Notch Road, thence south on the old road four rods; thence westerly nine rods, so by turning north to be four rods to land of B. F. Hathaway; thence east on land of Hathaway to place of beginning.” The description of the lot next south was as follows: “ Commencing on the old road at Dennis Buckley’s southeast corner of land, thence southerly on the old road four rods to a contemplated new road leading from the old road westerly, which is to be two rods wide; thence westerly five and three fourths degrees north, nine rods; thence northerly four rods; thence easterly on said Buckley’s land to place of beginning.” The lot of land on the south side of said new road was bounded as follows: “ Commencing at the southeast corner of said new road, thence running southerly on the old road four rods; thence westerly one half degree south, nine rods; thence northerly to the new road; thence easterly on the new road to the place of beginning.”</p> <p>The tenant contended that the contemplated street, mentioned in the deed of Lots 2 and 3, was fixed by Brown’s plan, and not at a point eight rods from the elm tree, as called for in the deed of Lots 2 and 3 aforesaid. The tenant offered no evidence to show the location of said contemplated street except Brown’s plan. No street has ever been opened either at the point marked on Brown’s plan or where called for by said deeds.</p> <p>The demandants then asked the judge to instruct the jury as follows: “1. The jury should not consider the evidence of Benjamin F. Robinson that said stone wall was the southern boundary of the demandants’ lot, and, further, that it was not to be considered by them as fixing or controlling the northeast corner of the demandants’ lot. 2. If the jury find the southeast corner of 1 land I sold Bailey,’ or the so-called Bailey lot, is in doubt, then the O’Hearn line, and the courses and distances mentioned in the tenant’s deed, must control and fix her southeast corner by measuring back four rods south on Furnace Street from said O’Hearn’s line. 3. If the jury believe the deed to Harrington was not in fact made until after said stake was so pointed out to him, and while he had an agreement for the purchase of another lot and not of the one finally conveyed, they should not consider the evidence of Harrington as to said stake. 4. The true southeast corner of the Bailey lot, as a monument, was the dividing line between the lots of the demandants and the tenant; and if the jury, in the absence of said bond, and without any knowledge of the description therein, were in doubt as to the true location of said southeast corner, they should fix it by measuring back south on the road four rods from O’Hearn’s southeast corner. 5. The jury cannot find what or where the southeast corner of ‘ the land I sold Bailey ’ was, without seeing the bond, or having some knowledge of the description therein; and, as said bond was not introduced or the description therein proven,, they must fix the southeast corner of the tenant’s lot by reference to the other monument, courses, and distances mentioned in the tenant’s deed.”</p> <p>The judge refused to give any of the instructions asked for by the demandants, but instructed the jury in a manner not objected to. The jury returned a verdict for the tenant; and the demandants alleged exceptions.</p>

<p>Want of consideration between the drawer and acceptor of a foreign bill of exchange is no defence to an action against the acceptor by the payee, although he took the bill before acceptance.</p>

<p>A ruling of the Superior Court, upon the trial of a complaint for flowage, that the complainant is entitled to maintain the complaint, and excluding evidence offered by the respondent, is interlocutory only, and exceptions thereto, entered in this court before the case is finally disposed of in the Superior Court, will be dismissed.</p>

<p>A search-warrant, attached to a complaint, directed the officer to enter “ the house and premises mentioned in the above complaint.” The language of the complaint was, “the house and premises of E. D. of G., in said county of H.” E. D. Was the only man of his name in G., and both owned and occupied the house searched, and owned no other house there or in the county. Held, that the words "the house of E. D.” meant the house occupied by him; that the words “ and premises ” referred only to the premises used and occupied in connection with the house ; and that the warrant was sufficient.</p> <p>Under the Pub. Sts. c. 212, §§ 3, 4, a warrant issued by a district court in one county, directing the officer to search a house in that county for goods stolen in another county, is properly made returnable to the court which issued it.</p> <p>Under the Puh. Sts. c. 212, § 1, a search-warrant need not set forth that the court issuing it is satisfied that there is “ reasonable cause ” for the complainant’s belief that the goods are concealed in the building directed to be searched; nor, under § 4, that there is “satisfactory evidence” to justify a warrant to search in the night-time.</p> <p>A search-warrant is not a “ civil process,” within the Pub. Sts. c. 98, § 6, prohibiting the service of such process on the Lord’s day.</p>

<p>In an action for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by falling into an unguarded elevator well in the basement of the defendant’s mill, the plaintiff testified that he had been in the defendant’s employ for several years; that he knew of the existence of the elevator well; that, on the morning of the accident, he was ordered by the foreman to go down into the basement to help put on an engine belt, and “ to hurry ” so that the foreman could start up; that he examined the first four belts by feeling of them (not being able to see whether they were on or off) while passing under them; that he started along the line of the main shaft for the last belt, and, being nearer the elevator well than he thought, he walked into it; that he did not know whether there was or was not any fence to the well; that he was looking for the elevator well to shun it, and was thinking of it; that he knew it was there somewhere, but did not know exactly where; that he was walking quite fast, because the foreman had told him to hurry; and that he went into the elevator hole so quick that he did not know whether he was stepping long or short. Held, that the defendant was entitled to a ruling that there was no sufficient evidence of due care on the part of the plaintiff; and that he took upon himself the risk involved in the position of the well.</p>

Replevin of one horse, one harness, one wagon, and one frame shop building.

<p>To constitute a gift of a sum of money, deposited in a savings bank by one person in the name of another, without the latter’s knowledge, the depositor retaining possession of the deposit-book, the money must be deposited with the intention of making a gift of it to the person in whose name it is put, and it must be accepted by him.</p> <p>Upon the question of the intention of a person, who has deposited money in a savings bank in the name of another without the latter’s knowledge, retaining the deposit-book himself, a letter from the treasurer of the bank to the depositor, who has also deposited money therein in his own name, notifying him that a certain sum was standing to his credit in the bank on which he was not entitled to interest because in excess of one thousand dollars, and, after the death of the depositor, his declarations relating to the deposit, are competent in an action by the person in whose name the deposit was made against the bank.</p> <p>Upon the question of the intention of a person, who has deposited money in a savings bank in the name of A. without his knowledge, in holding the deposit-book, the taking of an order on the bank signed by A. for the payment of a certain sum to the depositor, and, after the latter’s death, his declarations and letters respecting it, preceding and accompanying it, are competent in an action by A. against the bank.</p> <p>In an action against a savings bank by a person in whose name a sum of money had been deposited, without his knowledge, by another, it appeared that an order on the bank for the payment of a certain sum to the depositor, to be signed by the plaintiff, came to him in a letter, which was not in the writing of the depositor, but was signed in his name by another person, whose agency was not shown; and that this order was signed by the plaintiff, and returned to the depositor. This letter was excluded. Held, that it should have been admitted.</p> <p>In an action against a savings bank by a person in whose name a sum of money has been deposited in the bank by another, no exception lies to the exclusion of declarations of the depositor, in relation to making his will, after the gift of the' money so deposited was completed.</p>

<p>No exception lies to the refusal to give a ruling requested which is not applicable to the facts proved.</p> <p>It is not the duty, nor within the power, of the selectmen of a town to erect a railing within a public way for the purpose of changing the line of travel; and, in an action against the town for an injury caused by such a railing, it is a question of fact for the jury whether the way is thereby made defective.</p>

<p>The right which an insolvent debtor has in a policy of insurance on his life, payable to him in case he survives a certain day, which day is after the first publication of notice, passes to his assignee, under the Pub. Sts. c. 157, § 46.</p> <p>An insurance company was summoned, by a special precept of attachment, as trustee of the principal defendant in an action against P. At the dates of the action and of the issuing of the trustee process, there was an outstanding policy of insurance issued by the trustee on the life of P. “for the benefit of the children of P.,” and providing that, “ if the said insured shall survive until ” a certain day, which was before the service of the trustee process, “ then the said sum insured shall be paid to him.” After the action was brought, and , before the service of the trustee process, P. went into insolvency, and C., his assignee in insolvency, appeared as claimant of the fund, his claim stating, if “the amount due .... was, at the time of the issuing said special precept of attachment, by the terms of said policy the property of said P. and liable to attachment as his estate, that the same belongs to him, the said 0., as assignee aforesaid, and he therefore claimi the same.” Held, that the claim was sufficient.</p>

<p>If a debtor, against whom, upon his application to take the oath for the relief of poor debtors, charges of fraud are filed by his creditor under the Pub. Sts. c. 162, is found guilty by the magistrate of one of such charges, and not guilty of the other, and is sentenced accordingly, and does not appeal from the sentence, the creditor is not entitled to appeal therefrom, although the charges are under different clauses of § 17.</p>

Contract upon a promissory note for $2020, dated New York, February 12,1884, payable two months after date to the order of the defendant, signed by Israel C. Cornish, and indorsed as follows: “For value received, pay John J. Johnson or order, and I hereby waive protest of within note.

Tort for personal injuries received by the plaintiff while in the employ of the defendant corporation.

Petition, by the county commissioners of Hampshire, under the St. of 1875, o. 200, for the appointment of commissioners to determine the parties benefited by defences to protect the banks of the Connecticut River, built in accordance with the provisions of said statute, and to apportion the cost thereof. Hearing upon the report of the commissoners, before 0. Allen, J., who reserved the case for the determination of the full court. The facts appear in the opinion.

<p>A will made several specific devises and bequests; in the fourth clause it gave to trustees a certain sum to be held upon certain trusts therein defined; in the tenth clause it gave to the trustees the residue of the estate remaining “ after paying all previous bequests and legacies ” upon certain trusts therein named, different from those created by the fourth clause; and appointed one of the trustees executor. The executor rendered a first and second account, both of which were approved, seven years after the will was proved, in which he credited himself with having paid to the trustees under the fourth clause the trust fund therein named. The trustees rendered an account four years later, which was allowed, and in which they charged themselves with said trust fund, and with yearly interest thereon for nine years, and credited themselves with the payment of such interest to the cestuis que trust. The second account of the executor, which was not a final account, showed a Certain balance due him from the estate ; and he has continued to act as executor since. An action upon the bond given to the judge of probate by the trustees was referred to an assessor, to ascertain the amount for which execution should issue. The assessor found that the trustees had misappropriated a large part of the trust fund and of the income thereof, which, with interest, amounted to a certain sum, for which execution ought to issue, and that the sum which by the executor’s second account appeared to be due him from the estate should not be deducted. Held, that execution should issue for the amount found due by the assessor, with interest to the date of the execution.</p>

<p>Under the Gen. Sts. c. Ill, § 16, an action upon an indenture, hy the inspectors of a state almshouse, binding as an apprentice a state pauper, is barred, unless brought during the term of apprenticeship, or within two years after the expiration thereof.</p>

<p>K. conveyed to F. a quarry in L., bounded by other land of K., with a covenant as follows : “ And I do for myself, my heirs, executors, and administrators, covenant with the said F., his heirs and assigns, that I will not open or work, or allow any person or persons to open or work, any quarry or quarries on my farm or premises in said L.” By mesne conveyances A. became possessed of the quarry conveyed to F., and B. of the surrounding land referred to in the covenant; and A. brought a bill in equity to restrain B. from quarrying stone on his land. Held, that the bill could not be maintained.</p>

<p>A decree of the Probate Court, duly passed, approving and allowing a will, cannot be revoked and annulled for fraud, by this court sitting in equity.</p>

<p>In an action upon two promissory notes signed by the defendant’s husband, who died before the trial, and by the defendant, it appeared that there had been a previous note, given by the defendant’s husband for a debt to the plaintiff, in an amount equal to the aggregate of the two notes in suit; that this note had been indorsed by the plaintiff, and had been discounted at a bank of which one W. was cashier; that, just before it became due, the defendant’s husband sent for W., who agreed to renew the note, if the plaintiff would indorse it; and that, according to the defendant’s testimony, the plaintiff came to see her husband, and agreed to take care of the note, saying that he would have it put into two notes, and adding: “ Don’t worry about these at all. I will take care of them. All we want of you is to get well.” The defendant further testified, that nothing was said to her about signing any note; that she had no property at the time, but had a policy of insurance, which would be available only at her husband’s death. The defendant’s daughter testified that she went to the bank to get a power of attorney to her for her father to sign; that she obtained this from the attorney of the bank; that W. gave her the two notes in suit, pointing out how they were to be signed, and saying, “ Take them home to your father, and tell your father to sign there and your mother there ; ” and that she knew that the two notes were to take up the former note, because she was told so by her mother. The defendant and her daughter testified, against the plaintiff's exception, to the conversation which took place at the time of signing the notes, in substance, to the effect that the daughter repeated what W. had said; that the defendant’s husband said, “I do not see why your mother’s name should be on there ; ” that he sank back, and said, “ I guess it is all right; ” and that the power of attorney was signed by the husband, after which the daughter signed his name as it appeared on the notes, which the defendant then signed. The defendant further testified, that she had never been spoken to about signing the notes; that she did not think of binding herself on the notes; that she signed them at once after her daughter signed them; that her daughter went right back with the notes; and that her husband was very sick, and she thought the plaintiff was very kind not to worry her husband about the note. Held, that there was no evidence that the defendant was induced to sign the notes by fraud on the part of the plaintiff. Held, also, that evidence of the conversation which took place at the time of signing the notes was admissible, so far as it formed a part of the act done by the defendant.</p>

Tort for personal injuries occasioned, on Sunday, October 8, 1882, to the plaintiff, while in the employ of the defendant as an engineer upon a locomotive engine, by reason of an alleged defect in the defendant’s track. Trial in the Superior Court, before Rockwell, J., who ruled, as requested by the defendant, that the plaintiff was not entitled to recover, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>An employee in a mill was ordered by the foreman to go up a ladder, which was standing against a belt box into which a revolving shaft ran at right angles, and nail a board on the box. The employee, who had worked in mills for a long time, and was acting within the scope of the duties which he had undertaken, was injured by his apron and jacket catching on the shaft while he was nailing on the board. The shaft was plainly visible, and was seen by him; and he could have moved the ladder to the opposite side of the box, where there would have been no danger. Held, that he could not maintain an action against his employer for the injury so received.</p>

<p>Contract, in two counts, by the administratrix of the estate of Waitey Ann Noble, against the administrator de bonis non with the will annexed of the estate of Augustus Noble. The first count was for money lent, and the second count was for money had and received.</p> <p>At the trial in the Superior Court, without a jury, it appearing upon the reading of the papers, and from the statements of counsel, that Augustus Noble and Waitey Ann Noble in their lifetime were husband and wife, and that this action was brought to recover from the husband’s estate a sum of money which he received from his wife a few months before his death, upon his promise to return it, or a like sum, to her in a short time, Rockwell, J., without hearing any evidence, ruled that the action could not be maintained on either count of the declaration; and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

<p>The owner of land, having a right to flow, by means of a dam, adjoining land which is used for pasturage purposes, is not entitled to remove an ordinary farm fence erected on the servient estate, while he is not exercising his right of</p>

Tort for the conversion of a quantity of wood. The defendant, a deputy sheriff, justified under an execution against one Atkins, by virtue of which he took and sold the wood as the property of Atkins. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

Contract upon a policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, against loss by fire, in the sum of $2000, upon a frame building in process of erection in Palmer, and on materials used in building the same, for three years from April 13, 1883.

<p>A guardian is liable to his ward for the rent of the ward’s real estate which he received, or which he might have received by the use of due diligence.</p> <p>A guardian is liable to his ward for the loss to the ward of the value of his real estate sold, for the non-payment of a tax assessed thereon, more than two years before the ward became of age, the guardian having the means to pay the tax, derived from the rent of the real estate; but the guardian is not so liable to a ward who became of age before the sale.</p> <p>Two sons and two daughters, after the death of their parents, continued to occupy the house left by their father, forming one family. One son and one daughter were of age, and the others were minors. The elder son, who was appointed guardian of the minors, contributed to the support of the family, but a larger part of the household expenses were paid by the younger son, who was industrious and of good character, out of the wages earned by him, which he was allowed by his guardian to receive and retain. No account was kept of the amounts expended by either of them. The younger daughter did the housework, and the elder daughter was an invalid, unable to work. Held, in an action upon the guardian’s bond, that he was not guilty of a breach of duty towards his ward in allowing him to receive his wages and to apply them towards the support of the family. Held, also, that the younger daughter was not entitled to claim wages for her services over and above what her support was fairly worth.</p>

<p>An exception to the admission of immaterial evidence cannot be sustained, unless the excepting party shows that he lias been prejudiced thereby.</p>

<p>In an action in this Commonwealth on a promissory note, made and payable in another State, the question whether the note is negotiable is, in the absence óf evidence of the law of such State, to be determined by the common law, and the St. of 3 & 4 Anne, c. 9, as declared by the decisions of this Commonwealth. A promissory note, payable “ ninety days after date,” and containing on its face a power of attorney authorizing a confession of judgment “at any time hereafter,” is not negotiable.</p> <p>A promissory note, made and payable in another State, contained on its face a power of attorney “to confess a judgment without process in favor of the holder of this note.” Judgment was rendered against the maker of the note, in favor of an indorsee, by a court of the State where it was made, upon a confession of judgment by virtue of the warrant of attorney contained in the note. The judgment creditor then brought an action on the judgment in this Commonwealth. Held, that, although the note was not negotiable according to the law of this Commonwealth, the action could be maintained.</p>

<p>Tort for personal injuries occasioned to the plaintiff, while in the employ of the defendant, by the fall of a staging. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence tending to shqw that the committee on highways, duly appointed by the defendant city, directed the highway commissioner of the city to erect a building to hold and cover a machine used solely by the city for crushing stone for macadamizing the public ways in the city; that said commissioner employed Augustus S. Gates, a master carpenter and builder, to furnish, under the commissioner’s superintendence, the labor and tools required in the erection of said building; that there was no plan to work by furnished by said commissioner or committee; that general directions as to dimensions and con-, struction were given by the commissioner, who was a farmer and not a carpenter, and who gave no directions as to the detail of building, nor as to the staging; that the city was to furnish and did furnish all the materials for the erection of said building, and paid Gates for his own services and for the services of carpenters employed by him; that, after the frame of the building was put up and boarded, Gates directed one Green, a journeyman carpenter employed by him, to erect a staging for the purpose of shingling the roof of the building, and to use therefor certain brackets which belonged to Gates, and which he had previously brought to the building, and which were afterwards used in the erection of the staging by Green; that the staging was composed of the brackets for support, and of lumber furnished by the defendant, and was properly and safely erected, except as hereinafter stated; that shingles were placed upon the staging, and Gates, with three journeymen under him, including the plaintiff, was at work upon the staging shingling the roof of the building ; and, after a few courses had been laid, the men approached the centre of the staging for the purpose of chalking the line to mark for another course, and, while they were near the centre of the staging, the bracket underneath where they were standing broke, by reason of imperfection and insufficiency therein, and the plaintiff, with the others, fell to the ground, a distance of about twenty-two feet, and received the injuries complained of; that the bracket was manifestly unfit and unsafe for the purpose for which it was used, and was the sole cause of the accident; and that there were no materials or appliances furnished by the defendant for the erection of the staging, except those used by Green.</p> <p>There was no evidence of any failure by the defendant to furnish lumber and materials when requested by Gates; and it was in evidence, and not controverted, that the commissioner of highways, when the work began, requested Gates to make out a schedule of whatever lumber was needed in erecting the building ; that Gates thereupon made out a schedule; and that all the lumber called for was furnished by the defendant.</p> <p>Upon the above evidence, the judge ruled that there was no evidence which would warrant the jury in finding a verdict for the plaintiff; and directed a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>The provision of the Pub. Sts. c. 83, § 1, cl. 4, that “ any person of the age of twenty-one years, having an estate of inheritance or freehold in any place within the State, and living on the same three years successively, shall thereby gain a settlement in such place,” does not apply to a married woman.</p>

<p>Tort for personal injuries occasioned to the plaintiff by a defect in Lamartine Street in the defendant city. Trial in the Superior Court, before Gardner, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff offered evidence tending to prove that, on December 17, 1881, he gave the defendant the following written notice: “ You are hereby notified that James Grogan of said Worcester, at or about 6h. 30m. P. M. on the twenty-first day of November, A. D. 1881, was travelling on foot on Lamartine Street in said Worcester, and upon that part of said street next easterly of the stone bridge over the sewer or canal; that said street at that place was then and there out of repair and defective for the lack of sufficient railing upon the northerly side of said street next easterly of said sewer. Said sewer was also defective because of the lack of sufficient railing at said point. The ground at said location sloped abruptly for several feet, making it unsafe and dangerous for public travel, and while said Grogan was then and there travelling, by reason of said lack of railing on said street and sewer and of said abruptness, he fell down the bank iijto said sewer and was greatly injured. Said defect might have been remedied and the injury might have been prevented by reasonable care and diligence on the part of said city. And that action is to be brought against said city to recover the amount of the damages sustained as aforesaid, and this notice is given within thirty days of the time of said accident, in accordance with the provisions of chapter 234 of the laws of 1877.” It appeared that said Lamartine Street was not a public way, but was a private way uniting directly with Mill-bury Street, a public way in said city.</p> <p>The plaintiff testified that, in the evening of November 21, 1881, he was walking on the northerly side of Lamartine Street; that it was dark, and he could not see; that he had reached a point from five to seven feet, more or less, from the end of a bridge over the canal or sewer, when he stepped into a kind of drain, made of dirt and not bricked, which ran across the sidewalk diagonally; and that he stumbled and fell headlong into the sewer, not being able to get control of himself from the time he first stumbled until he struck on the bottom of the sewer. He described the drain or gully into which he stepped as being a foot deep on the side of the walk towards the middle of the street, and deeper on the outside towards the sewer, and as descending towards the sewer. On cross-examination, he testified that he stepped into the drain or gully, and fell; and that that was the cause of the accident.</p> <p>There was evidence tending to show that, in 1872, the sewer or canal and the bridge were built by the city; that since then the street and bridge had been used as a way; that the embankment was within two feet of the sidewalk; that the inclination or declivity continued from the side of the street to the canal; and that, at the point where the plaintiff stumbled, there was a retaining wall, extending from the end of the bridge as it spanned the canal to said point, and farther west. There was no other evidence as to how the accident happened, the plaintiff being alone at the time. He called two other witnesses, who described the gully or drain in about the same manner as the plaintiff, there being some slight difference in the witnesses’ testimony as to the precise distance of the gully from the end of the bridge.</p> <p>It appeared that there was no railing on Lamartine Street where the plaintiff fell over; that there was no notice that Lamartine Street was dangerous, as is provided by the Pub. Sts. a. 49, § 95; and that there was no railing by the side of the canal or sewer.</p> <p>The defendant asked the judge to rule that the notice was not sufficient to warrant a verdict on the evidence, and to direct a verdict for the defendant; but the judge refused so to do. Th$ jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tort for breaking and entering the plaintiff’s close in Worcester. The defendant justified his acts under a right of way over the plaintiff’s land.

Tort for personal injuries occasioned to the plaintiff by being thrown from his wagon by a collision with the defendants’ wagon. At the trial in the Superior Court, before Mason, J., the jury returned a verdict for the defendants; and the plaintiff alleged exceptions to the exclusion of certain evidence, the nature of which appears in the opinion.

<p>In an action upon a promissory note for $3000, the defendant set up want or failure of consideration for the note; and testified that the nbte and $500 were given upon the plaintiff’s promise to deliver to him forty shares of the stock of the N. Company. The plaintiff, in his opening to the jury, stated a different consideration. The defendant, to fortify his testimony, offered in evidence an agreement signed by the plaintiff, which began as follows: “ In consideration of $3500 paid me by ” the defendant “ for forty shares of the N. Company’s stock, part of which is held in note secured by said stock.” This agreement was excluded. The plaintiff’s signature was admitted; and the defendant testified that the agreement referred to the note in suit. Held, that the agreement should have been admitted.</p>

<p>A bond, which was not dated, and did not contain an approval of the adverse party or of the justice, recited in its condition an appeal from a judgment given by a district court in favor of the plaintiff in the action, but did not state against whom it was given, when it was rendered, or the amount thereof, either in debt or costs. The record of the district court showed that the appellant recognized before the court with sufficient sureties, but made no mention of any bond. Held, that the bond did not comply with the requirements of the Pub. Sts. c. 154, § 52, and the St. of 1882, c. 95; and that the appeal was rightly dismissed.</p>

<p>In 1853, H. conveyed land to a railroad corporation by a deed which provided that the corporation should furnisli H., his heirs and assigns, with a “ convenient ” crossing over the railroad at grade, the precise spot to be thereafter designated by H., to be constructed “ entirely within the limits of the land herein conveyed” to the corporation, and “forever after to be maintained” by it. Soon after the date of the deed, H. indicated the spot where the crossing should be located, and a crossing was there built on its own land by the corporation, adapted to the grade of tilt: road as then fixed, which crossing was not then obstructed by gates or bars ; but, in 1884, the corporation erected such obstruction, and an assign of H. brought an action therefor against the corporation. Held, that he was entitled to have the way kept open without gates or bars. Held, also, that the expense of making new approaches to the crossing on the land of H., rendered necessary by a change in the grade of the railroad, could not be recovered of the corporation.</p>

Tort for breaking and entering the plaintiffs’ close, namely, a burial lot in Milford, and taking and carrying away a monument, er.ected there by the defendants under a contract with Rachael Steele, the widow of- David Steele, who was the plaintiffs’ father and the owner of said lot at the time of his death. Trial in the Superior Court, without a jury, before Barker, J„ who found for the plaintiffs; and the defendants alleged excep tians. The facts appear in the opinion.

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

Tort for personal injuries received by the plaintiff while in the defendant’s employ. Trial in the Superior Court, before Aldrioh, J., who allowed a bill of exceptions, in substance as follows: The plaintiff offered evidence tending to show the following facts. He came to Worcester in the summer of 1882, and let himself to the defendant to work on a sewer.

<p>The plaintiff's counsel in an action is not entitled, in his closing argument to the jury, to comment upon the filing by the defendant of an amended answer during the trial, and to contend that, by a comparison of the amended answer with the original answer, a simulated defence is shown; and an exception lies to the refusal of the presiding judge to instruct the jury that the fact of such amendment of the answer is not a subject of comment, and should not influence their verdict.</p>

<p>In an action by A. for the obstruction by B. of a right of way, it appeared that C., who was the owner of a large tract of land, sold a part of it to B., reserving a strip of land on one side of the lot conveyed “ for an open passageway to be used in common by the said C. and B. and their heirs and assigns forever; ” that the description in the deed to B. covered this strip; that C. subsequently sold the adjoining lot to A. by a deed which contained no reference to said passageway, but provided for another passageway, which gave A. access to the rear of his lot; and that, before the deed to A. was made, the rear end of the passageway in question had been closed up by a substantial board fence, so that it no longer furnished access to the lot sold to A. B. offered to show that C., while the owner, had said that he should relinquish this right of way when he sold the adjoining property ; and that the fence was erected by him in order to abandon and extinguish the passageway. Held, that this evidence should have been admitted.</p>

<p>Petition, under the Pub. Sts. c. 191, to enforce a mechanic’s lien. The case was submitted to the Superior Court, and, after judgment for the respondent, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

Tort for breaking and entering the plaintiff’s close in East Bridgewater. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows: There was evidence tending to show that the plaintiff owned on the east side of the line which was in controversy between the parties, and the defendant on the west; and the question in the case was as to the exact location of the west line of the plaintiff’s premises.

Contract to recover S1000, deposited in the defendant bank by Thomas H. Sullivan, the plaintiff’s intestate, “in trust for Edward Sullivan,” who appeared as claimant of the fund. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the plaintiff; and the claimant filed the following motion : “ And now after verdict for the plaintiff, comes Edward Sullivan, who was made defendant in this action under the provisions of the Pub.

<p>Contract against the surviving partner of the firm of J. Lovejoy and Sons, to recover a balance of rent reserved in a lease under seal of certain premises for the term of ten years from June 24, 1873, at an annual rental of $12,500, payable quarterly on the twenty-fourth days of March, June, .September, and December in each year, respectively. Trial in this court, before Field, J., who reported the case for the determination of the full court, in substance as follows:</p> <p>The only question in the case related to the four years from December 24, 1876, to December 24, 1880, inclusive, the plaintiffs claiming to recover an alleged balance due for these years, and the defendant contending that the plaintiffs had been fully paid all rent due during said four years.</p> <p>The testimony of the defendant was in substance as follows: The premises were occupied by him for the sale of carpets. In the fall of 1876, business having been dull and for a time having been conducted at a loss, he sought the plaintiffs, and represented to them that his business was unprofitable, that he was unable to pay the full rental of the premises, and stated to them that he should fail in business unless the rental was reduced. The plaintiffs thereupon verbally agreed to reduce the rental for the term of one year, beginning with December 24, 1876 (the commencement of a quarter under the lease), by the sum of $2000, so that the same should be $10,500 per annum for that year. This reduced rent the defendant paid, when or after it became payable during that year, by negotiable checks, and the plaintiffs received the same without objection, and gave receipts for the same each quarter in the manner following: “ $3125. Boston, April 2, 1877. Received of J. Love joy & Sons three thousand one hundred and twenty-five dollars in full for rent store 178 and 179 Tremont Street to March 24. P. J. & B. E. Hastings.” At each quarterly payment, the sum of $2625 only was paid by the defendant, according to said verbal agreement.</p> <p>In the fall of 1877, the defendant was desirous of taking a partner into the firm, and putting in more capital, and informed the plaintiffs that business was still dull, and he was still unable to pay the full rental of the premises, and that he should be obliged to fail unless the rent was reduced for the ensuing three years. The defendant also offered to prove that he said to the plaintiffs, that, if the rent should be reduced by the sum of $2500 per annum, he would take in a partner for the ensuing three years, and would borrow the sum of $40,000, and put the same into the business. The defendant testified that the plaintiffs thereupon agreed to reduce the rent for the three years commencing December 24, 1877, by the sum of $2500 per annum, so that the same should be $10,000 per annum for those years.</p> <p>The defendant offered to prove that he thereupon admitted said partner, and raised said sum of $40,000 and put it into the business; and testified that he paid this reduced rental, when or after it became payable, for the quarter ending March 24, 1878, by his negotiable check, and the plaintiffs gave him the following receipt therefor: “$3125. Boston, April 1, 1878. Received of J. Lovejoy & Sons thirty-one hundred and twenty-five dollars in full to March 24 of rental 178 and 179 Tremont Street, as per lease. P. J. & B. E. Hastings.” But no receipt in full was ever 0 given thereafter.</p> <p>No evidence was offered that the plaintiffs ever agreed to accept the new partner or the new firm as a tenant, or claimed to hold for the rent any persons except those who executed the lease.</p> <p>In June, 1878, the first-named plaintiff filed a bill in equity against her husband, the other plaintiff, charging certain irregularities on his part in the management of these premises, and a receiver was appointed, who continued to manage the premises and collect the rents thereof from June 24, 1878, to January, 1880.</p> <p>During this time the defendant paid, by negotiable checks or notes, the reduced rental to the receiver, after but not as it became payable, with the exception of the quarter ending December 24, 1880 (which he paid to the plaintiffs), the plaintiffs upon each payment authorizing the receiver to receive such reduced rental; but no receipts in full were given therefor.</p> <p>At the termination of the receivership, the receiver filed his account, containing the items of rental received, and the same was assented to by the plaintiffs’ counsel, and allowed by this court.</p> <p>After the termination of the receivership, the defendant paid to the plaintiffs, by negotiable checks, the reduced rental only, after but not as it became payable, until the termination of said term of three years, which expired on December 24,1880, but no receipts were given therefor.</p> <p>The plaintiffs received the amounts so paid without objection, and without demanding any further payment of rent, or demanding the full rent reserved under the lease, until on or about October 1,1880, when they contended that the defendant should pay full rent for the year 1880, and presented a bill for the same.</p> <p>After December 24, 1880, the defendant resumed the payment of the full rental reserved in the lease. The lease expired June 24, 1883, and the defendant thereupon surrendered the premises.</p> <p>The judge r.uled, against the objection of the defendant, that the above evidence and offer of evidence, if received, and if believed by the jury, would not authorize a finding that the plaintiffs were not entitled to the balance of rental during these four years, being the difference between the rent paid by virtue of the verbal agreement and the rent reserved in the lease ; namely, the sum of $2000 for the first year and the sum of $2500 for each of the other three years; and, the defendant stating that he had no other defence to the action, the judge directed the jury to return a verdict for the plaintiffs for the full amount claimed.</p> <p>If the ruling was correct, the verdict was to stand; otherwise, a new trial to be granted.</p>

<p>Bill in equity, by the trustees under the will of' Thomas Bartlett, to obtain the instructions of the court as to the construction of said will. The case, as it appeared from the bill and answers, upon which it was reserved by Field, J., for the consideration of the full court, was as follows:</p> <p>Thomas Bartlett died on December 10, 1856. His will, which was duly admitted to probate, contained, among others, the following provisions :</p> <p>“ 5. Item, I do give, devise, and bequeath my estates on Washington Street and Devonshire Street in said Boston, with all the rights, privileges, and appurtenances therewith ever used, or in any way thereto belonging, to my said daughter Maria Hall, to my son-in-law Jonathan Dwight, and to my grandson Thomas Bartlett Hall, to them their heirs and assigns forever, but in trust to and for. the trusts, uses, and purposes hereinafter expressed and declared, and none other.</p> <p>“In trust, after defraying and paying all necessary repairs, taxes, insurance, and other necessary charges, to permit my said daughter Maria Hall to take and receive, to her own use and her separate use, two thirds of all the net rents, issues, and income, free from the debts, control, or interference of any husband or husbands she may in future have, for and during the full term of her natural life; and in like manner to permit my other daughter, Ann Dwight, to take and receive, to her own separate use, the other one third part of all the net rents, issues, and incomes of the estates aforesaid, for and during the full term of said Ann’s natural life, free from the control, interference, or the debts of her present husband, Jonathan Dwight, Esquire, or any future husband or husbands she may have; and, upon the decease of either of my said daughters, then further</p> <p>“ In trust to pay over equally to the child or children of such deceased daughter, the same share of the said rents, profits, and incomes, their mother, if living, would have been entitled to receive by the provision aforesaid, during the lifetime of my surviving daughter, but in case such daughter who shall first decease leave no issue then living, then the whole of said rents, issues, and income of the estates aforesaid are to be paid to or be received by my daughter who may survive, during her lifetime ; and</p> <p>“ In trust lastly, at the decease of the said surviving daughter, to grant, surrender, and convey the estates aforesaid, with all accumulation or income then unexpended, to the issue or children of my said two daughters, Maria Hall and Ann Dwight, whd may then be living, to be equally divided among all such issue or children share and share alike, to them and their respective heirs and assigns forever in fee simple.</p> <p>“ 6. Item, two thirds of all the residue and remainder of toy estate real, personal, and mixed, of what kind, name, or quality Soever, or wherever to be found, I give, devise, and bequeath to my said daughter Maria Hall to her and her heirs forever, without reserve, limitation, or restriction, and the other one third part of the said rest, residue, and remainder of my said estate I in like manner give, devise, and bequeath to toy other daughter, Ann Dwight, to her and her heirs forever, without limitation, reservation, or restriction.</p> <p>“ The difference made in the provision for my two daughters arises not in any difference in my affection towards them who are equally dear to me, but wholly in consequence of the state of them respective families,”</p> <p>On August 14, 1873, Maria Hall died; and on August 28, 1884, Ann Dwight died. Maria Hall had five children, three of whom were living at the death of Ann Dwight. The other two children of Maria Hall were Joseph A. Hall and Annie B. Parker, both of whom died before Ann Dwight. Joseph A. Hall left two daughters, one of whom, Annie B. Simmons, is living; the other died before Ann Dwight, leaving seven children, all of whom are living. , Annie B. Parker died before Ann Dwight, leaving three children.</p> <p>Ann Dwight left two children, both of whom are living.</p> <p>The questions presented were as to the persons entitled to the trust property, and to the proportions in which they should take: whether it should be divided among the five children of Ann and Maria; whether the children of Annie B. Parker are entitled by representation to the share of the property to which their mother would have been entitled if living at the death of Ann; whether the surviving child of Joseph A. Hall is entitled to one half of the share to which her father would have been entitled if living at the death of Ann, and the children of his deceased daughter to the other half; or whether the property should be conveyed, in equal shares, per capita, to all the children or issue of Maria Hall and Ann Dwight living at the death of Ann.</p>

<p>Bill in equity, filed January 17, 1884, against David H. Bidwell, and Nathan W. Harris, administrator of the estate of Henry A. Bidwell, alleging the following facts:</p> <p>On January 1,1881, David H. Bidwell made four promissory notes, payable, with interest, in six, eight, ten, and twelve months after date, respectively, to the order of Comstock, Castle, and Company. These notes, amounting in all to $1658, were indorsed by the payees to the plaintiff, and the defendant Bidwell owes the plaintiff the amount thereof, with interest.</p> <p>The defendant Bidwell is the son of Henry A. Bidwell, who died intestate, leaving real and personal estate of great, value, in which the defendant Bidwell has a distributive share. The defendant Harris is sole administrator of the estate, and no distribution of it has yet been made.</p> <p>On September 5, 1882, the plaintiff brought an action on the promissory notes, against David H. Bidwell, in the Superior Court, in which action Harris, as administrator, was summoned as trustee. In answer to interrogatories, the trustee alleged that the defendant Bidwell was indebted to his father’s estate, on certain promissory notes, to the amount of $6410.71, with interest thereon, and that said sum, with interest, being set off against the share or claim of the defendant, as heir or distributee of his said father, would exceed his distributive share in the estate. On the filing of these answers, the plaintiff applied to the court to frame issues to try the validity of the notes last mentioned ; but the court refused the application. ■</p> <p>Early in 1880, the defendant Bidwell went to Colorado and started in business, and obtained goods, wares, and merchandise on credit, representing that he. had a large capital and was thoroughly solvent and entitled to credit. Among the goods so obtained were the goods for which the notes, now held by the plaintiff, were given in 1881. Bidwell bought and improved certain parcels of real estate in Colorado; and in November, 1880, made an assignment of all his property in Colorado, and by said assignment preferred his father, Henry A. Bidwell, and certain other creditors, but did not prefer the payees or holders of said last-mentioned notes. Bidwell, prior to the assignment, gave to Henry A. first mortgages, for a large amount, on his Colorado land. The assignee under said assignment has sold the assigned property for a sum sufficient to pay all the preferred claims; and the land covered by said mortgages is worth, at a fair market value, more than the- amount of the mortgages.</p> <p>The first note- signed by the defendant Bidwell, and payable to Henry A. Bidwell, was either never delivered to Henry A. Bidwell for a valuable consideration, or, if it was ever so delivered to him, it is amply secured by said assignment and mortgages ; and the other notes were either never delivered to Henry A. Bidwell, or, if they were ever delivered to him, were each and all made and delivered by David H. Bidwell wholly without' consideration, and for the fraudulent purpose of covering up and concealing the distributive share of David in his father’s estate, and of preventing the creditors of said David H. from having recourse to said share for the collection of their just claims. If the last-named notes were ever delivered to Henry, he accepted the same well knowing that each and all of them were wholly without consideration, and fraudulent and void, and combining and conspiring with David to defraud said David’s creditors as aforesaid.</p> <p>On a true showing of the accounts between David H. Bidwell and Henry A. Bidwell, it will appear that the said David did not owe the said Henry at the times at which the said notes purport to have been made and delivered, and at the time of the death of said Henry, the amounts represented by said notes; and it will further appear that said Henry at the time of his death held good and sufficient security for all the validly subsisting notes and obligations of said David to said Henry, and for all the other indebtedness of said David to said Henry ; and that the said notes, or some of them, were made wholly without consideration, and are fraudulent and void.</p> <p>The defendant Bidwell has no property which can be come at to be attached or taken -on execution in a suit at law against him.</p> <p>The defendant Bidwell, or the defendant Harris, or both of them, have in their possession, custody, or power certain books, papers, documents, or writings relating to the allegations or charges in this bill, and by which, if produced, the truth thereof, or of some part thereof, will appear.</p> <p>Henry A. Bidwell died in March or April, 1882, and the defendant Harris was appointed administrator of his estate at some time prior to July 1, 1882. No application has been made to the probate court to determine the validity of the notes payable to Henry A. Bidwell, or to set off the same against the distributive share of the defendant Bidwell, but the defendant Harris pretends that it is his intention to make such application ; and the plaintiff says that the discovery sought to be obtained by this suit will be of material benefit to him if any proceeding to try the validity of said notes is commenced in the probate court, and that said discovery cannot be had in said court.</p> <p>The bill contained twenty interrogatories relating to the validity of the notes of the defendant Bidwell held by the defendant Harris, and to the assignment in Colorado.</p> <p>The prayer of the bill was, that the defendants be required to answer the interrogatories; that the notes held by Harris be delivered up to be cancelled; or, if any of them were valid, that Harris be required to exhaust all other securities for said liabilities before applying David’s distributive share of his father’s estate; and for further relief.</p> <p>The defendants demurred to the bill for want of equity.</p> <p>The case was heard, on the bill and demurrer, by Field, J., who sustained the demurrer. The plaintiff appealed to the full court.</p>

<p>Indictment, against Richard Preece, James Burns, and Erick Guerin, alleging that they, on October 27, 1883, in the nighttime of said day, at Northampton, feloniously burnt “ a certain building, to wit, a warehouse, the property of the New Haven and Northampton Company, a corporation duly organized under the laws of the Commonwealth, .... and occupied as a warehouse by the Williams Manufacturing Company, a corporation duly organized under the laws of said Commonwealth.” At the trial in the Superior Court, before RocTcwell, J., the jury returned a verdict of guilty against each defendant; and they alleged exceptions, the nature of which appears in the opinion.</p>

<p>If the treasurer of a town obtains money from a bank on a promissory note of the town, and uses the money in paying proper town charges, he cannot be convicted of an embezzlement of the money, although he does not account for it to the town, and although such use of the money is contrived as a part of a scheme to defraud the town, to cover up an embezzlement of money already made or one intended to be made.</p> <p>No exception lies to the refusal to give an instruction which is based on a portion of the evidence only.</p>

Complaint, on the Pub. Sts. c. 100, § 30, to the Second District Court of Eastern Worcester, alleging that, on August 8, 1884, certain intoxicating liquors were kept and deposited by Patrick H. Morrison in a certain building in Clinton, with intent to sell the same unlawfully in this Commonwealth; and praying for a warrant to search said premises.

<p>A person, licensed as an innholder, and to sell intoxicating liquors to be drunk on the premises, may be convicted of keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, if he sells and delivers such liquors to persons on the Lord’s day, although, before supplying such persons with liquors, he requires them to eat a cold lunch placed on a table at which the liquors are served.</p>

Complaint, in two counts, for keeping and maintaining a common nuisance, to wit, a certain tenement in Buckland, used for the illegal sale and illegal keeping of intoxicating liquors, on May 1, 1883, and on divers other days and times between that day and May 31, 1884.

<p>Indictment, on the Pub. Sts. e. 207, § 4, alleging that the defendant, on January 23, 1880, at New York, in the State of New York, was lawfully married to one Nettie Wilfert, and the .said Nettie then and there had for his wife; and that the said defendant afterwards, to wit, on September 3,1883, at Uxbridge, in the county of Worcester, feloniously and unlawfully did marry and take to wife one Bridget Parrón, the said defendant “ then and there being married, and the lawful husband of said Nettie Wilfert, the said Nettie being his former wife and living; and said McGrath never having been legally divorced from said Nettie, whereby, and by force of the statute in such case made and provided, the said McGrath is deemed guilty of the crime of polygamy.”</p> <p>In the Superior Court, the defendant, before the jury were empanelled, moved to quash the indictment, for the following reasons : “ 1. Because there is no allegation that the defendant, on January 23, 1880, at New York, was then and there a single man unmarried. 2. Because there is no allegation that Nettie Wilfert named in said indictment was, on September 3, 1883, then the wife of said defendant, or then living.” This motion was overruled; and the -defendant excepted.</p> <p>At the trial, before Bacon, J., the government called Nettie Wilfert as a witness, who testified that she was married in New York to the defendant under the name of George H. Baker, on January 24, 1880; and also introduced a certificate from the records of the church by the pastor of which she was married, showing the marriage to have taken place on that day. This was the only evidence in the case relating to the first marriage alleged.</p> <p>The defendant called witnesses, who testified that, on October 15, 1876, at Providence, Rhode Island, the defendant, under the name of John McGrath, was married to one Catherine Tobin, which fact was uncontested by the government. There was also evidence tending to show that the defendant and Catherine lived together as husband and wife, after their marriage, in Providence; that they were so living together on Christmas, 1879; that between the middle and last of January, 1880,. they separated, Catherine going to Boston; and that they were not divorced.</p> <p>The defendant asked the judge to rule that there was a variance between the allegation in the indictment of the marriage of the defendant to Nettie Wilfert and the proof; but the judge refused so to rule.</p> <p>The defendant also asked the judge to instruct the jury as follows: “1. If the jury are satisfied that the defendant was lawfully married to Catherine Tobin in 1876, the presumption of law, in the absence of evidence to the contrary, is that said Catherine was alive on January 24, 1880. 2. If the jury are satisfied that the defendant was married to said Catherine in 1876, and that Catherine was seen alive a month prior to January 24, 1880, the presumption of law, in the absence of evidence to the contrary, is that she was alive- on January 24, 1880, and the jury would be warranted in so finding. 3. The government must satisfy the jury beyond reasonable doubt that the first marriage alleged in the indictment was legal and valid.”</p> <p>The judge refused so to rule, but instructed the jury as follows : “ The government is bound to prove beyond reasonable doubt that the defendant was married to one Nettie Wilfert in New York, and also that he was afterwards married to Bridget Farron at Uxbridge, as alleged, and that Nettie Wilfert was then alive. Under ordinary circumstances, if these facts were proved, the case would be complete for the government, but, in the present case, it is alleged in defence that the defendant was not lawfully married to Nettie Wilfert, because, prior to that time, he had been married to one Catherine Tobin. The burden of showing this is upon the defendant, and he must also show that the said Catherine was alive at the time of the alleged marriage to Nettie Wilfert, and then his lawful wife; if he satisfies you of these facts, he would be entitled to an acquittal. There is no presumption that said Catherine was alive at that time, but it must be proved as a fact that she was. If there is any presumption about it, the presumption is that Nettie Wilfert was lawfully married, and was his lawful wife, if the jury find that a ceremony of marriage took place between the defendant and said Nettie.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Complaint for keeping, on June 7, 1884, at Danvers, intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>If a complaint for placing and maintaining a screen, blind, shutter, and curtain upon premises licensed for the sale of intoxicating liquors, describes the premises as “the front room in the first story” of a certain building, the fact that the license produced in evidence covers the room alleged in the complaint and also the cellar under the same does not constitute a variance.</p>

Complaint to the Municipal Court of Boston, alleging that the defendant, on September 5, 1885, at Boston, unlawfully exposed and kept for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth, he not having any license, authority, or appointment, according to law, then and there to expose, keep for sale, or sell said liquors. In the Superior Court, the defendant filed a motion to quash the complaint, on the ground that it was insufficient.

<p>At the trial of a complaint for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, it appeared that the defendant was a licensed innholder, and also had licenses of the first and fourth classes to sell intoxicating liquors. A witness, who lived opposite the defendant’s hotel, testified that he had seen many people go in and come out of the hotel every day, mostly on Sunday, and once he had counted fifty persons go into the hotel in one hour; that he saw many drunken people about the place; that, on one occasion, he saw some men come out of the hotel, making considerable noise, and engage in a quarrel in the street near the hotel; that on Sundays he had seen many persons going over a passageway toward the rear of the hotel, iu which the bar-room was situated, but he could not tell whether they entered the hotel; that on Sundays he had seen people go in and come out of the hotel drunk and fighting; and that he saw the defendant there at various times. Held, that there was evidence, proper to be submitted to the jury, tending to show that the defendant illegally sold intoxicating liquors on the Lord’s day to persons who were not guests.</p>

<p>If, after the bringing of an action by a mortgagor against a third person for the conversion of the mortgaged property, the mortgagee takes possession of it for breach of the condition of the mortgage, such taking is an application of the property for the benefit of the mortgagor, and should be considered by the jury in mitigation of damages, although the foreclosure was not complete at the time of the trial, and although the mortgagee has sold a portion of the mortgaged property, and has transferred another portion to the defendant.</p> <p>The making of a second mortgage of personal property, after the bringing of an action by the mortgagor against a third person for the conversion of the same, is not an abandonment of the cause of action.</p>

Tort for personal injuries occasioned to the plaintiff, on November 8, 1881, by reason of a defect in the flooring of a bridge in Huntington, which was a county way. After the former decision, reported 138 Mass. 74, the case was tried in the Superior Court, before Barker, J. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>A member of the board of health of a town has no authority, against the consent of the owner or occupant, to take possession of a dwelling-house in which a contagious disease exists, and of the furniture therein, to the exclusion of such owner or occupant, and to carry away and destroy portions of the furniture, or to station a person on the premises with instructions to prevent ingress to and egress from the same, except in the manner pointed out in the Pub. Sts. c. 80.</p> <p>In an action against a member of the board of health of a town, who unlawfully took possession of the furniture in a house in which a contagious disease existed, and destroyed it, the defendant asked the judge to rule that the measure of damages was the market value of the property in its infected condition. The judge refused so to rule, and instructed the jury that the plaintiff was entitled to recover what the property was worth at the time it was taken, taking into consideration how much the value had been affected by its exposure to infection. Held, that the defendant had no ground of exception.</p>

Contract for expenses incurred in the relief of Emma J. Haley and her two minor children, whose settlement was alleged to be in the defendant town. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows: Emma J. Haley, whose maiden name was Emma J. Bonney, was born in Hanover, in this Commonwealth, about January 9, 1845.

Tout. The declaration was as follows : “ And the plaintiff says, that, on the twenty-eighth day of December last past, the 'defendants’ servant, George Baily, who was at the time watching and guarding the defendants’ lumber-yard and had charge thereof, unlawfully, without cause, and maliciously, made an assault upon him, and beat and bruised him, and so injured the plaintiff that he hath been put to great pain and suffering, hath lost much time and labor, and spent…

Tort for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant town.

Information in equity, at the relation of the Harbor and Land Commissioners, to restrain the erection of bay windows or projections extending into or over a passageway in the rear of the defendant’s house on the corner of Boylston Street and Exeter Street in Boston. Hearing before JDevens, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

Tort for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant’s servant. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows : The plaintiff was six years and seven months old at the time of the accident.

<p>If the owner of land employs a broker to sell it for a stipulated compensation, the broker is entitled to receive that sum, if, in pursuance of his employment, he substantially effects a sale by introducing to the owner a person to whom the owner sells the land.</p>

<p>Under the Pub. Sts. c. 161, § 84, it is within the discretion of the Superior Court, to the exercise of which no exception lies, to refuse to issue an order for further service of the writ in an action.</p> <p>The giving of a bail bond by the defendant in an action is not a waiver of his right to object that the service of the writ was insufficient.</p>

Contract upon a policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, against loss by fire, in the sum of $1000, for one year from June 8, 1883, upon certain machines, tools, and fixtures contained in a building in Newton.

<p>The first case was an action of contract, by the collector of taxes of the city of Boston, to recover the amount of a tax assessed as of May 1, 1883, by the assessors of said city, upon certain personal property held in trust by the defendant corporation for the New England Car Trust. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, which appear in the opinion.</p> <p>The second CASE was a petition for a writ of certiorari, to quash the proceedings of the respondents in refusing to abate the same tax. The case was heard before Devens, J., who reserved it for the consideration of the full court. The facts appear in the opinion.</p>

<p>A testator, by his will, of which H. was appointed executor, gave the residue of his estate to H., “ to be disposed of by him for such charitable purposes as he shall think proper.” H. paid all the debts, legacies, and funeral expenses of the testator, but rendered no final account, as executor, to the Probate Court, and gave no bond as trustee. Held, that the residuary estate was given to H. in trust; and that the sureties on his bond as executor were liable for so much of such' estate as was received by him, and not disposed of for “ charitable purposes.”</p> <p>Under the condition of an executor’s bond, “to administer,'according toclaw and the will of the testator, all his goods, chattels, rights, and credits, and the proceeds of all his real estate that may be sold for the payment of his debts and legacies, which shall come to the possession of said executor, or of any other person for him,” the sureties on the bond are not liable for the proceeds of real estate sold by the executor by authority of the will, and not needed for the payment of expenses, debts, or specific legacies.</p> <p>In an action against the sureties upon the bond of an executor, to whom the residuary clause of the will gave a fund to be disposed of by him for charitable purposes, a book, purporting to be an account of such fund, supplemented by the receipts of the respective societies to whom funds were given, and showing a payment of a certain sum to such societies, is admissible in evidence; but entries in a “ family expense book,” including items as payments to charities, for taxes, and personal gifts, are not admissible.</p> <p>In an action against the sureties upon the bond of an executor, to whom the residuary clause of the will gave a fund to be disposed of by him for charitable purposes, there is no presumption that the residue unaccounted for by him was paid out in accordance with the terms of the trust; but the burden of proof is upon the sureties to establish that fact.</p> <p>In an action against the sureties upon the bond of an executor, to whom the residuary clause of the will gave a fund to be disposed of by him for charitable purposes, if there is no wilful breach of duty by the executor, simple interest at six per cent should be computed upon the residue unaccounted for, from the date when this duty should have been performed to the rendition of judgment, and added to the principal sum, from which should be deducted his commission.</p>

Indictment, against Maud Ruisseau and Lyman S. Eaton, in three counts, for adultery. The first count alleged the offence to have been committed on September 24, 1885. Each of the other counts alleged a distinct offence, on May 24, 1885, and on January 24,1885, respectively. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows: There was evidence that Mrs. Ruisseau was the wife of a man other than the co-defendant.

Indictment in sixteen counts against John C. Hayes, Frank Williams, Charles Goldstein, and Marks Levi.

Complaint to the Second District Court of Eastern Middle-sex, for keeping and maintaining a common nuisance, to wit, a certain tenement in Waltham, used for the illegal sale and illegal keeping of intoxicating liquors, on November 1, 1883, and on divers other days and times between that day and March 17, 1884.

Complaint to the Police Court of Newton, alleging that the defendant, on April 18, 1885, at Newton, unlawfully exposed and kept for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth. Trial in the Superior Court, before Q-ardner, J., who allowed a bill of exceptions, in substance as follows: There was no evidence that the defendant exposed said liquors, but there was evidence tending to show that she kept them with intent to sell them.

<p>A., in fraud of his creditors, conveyed land to B., and B. mortgaged the land to C., who took the mortgage without notice of the fraud and for a valuable consideration. After the mortgage deed was recorded, a creditor of A. levied upon and sold “ all the right, title, and interest of A. in the land.” Held, that the levy and sale were valid, under the Pub. Sts. c. 172, § 27.</p>

<p>Writ of entry, dated November 11, 1884, to recover a parcel of land in Amherst. Plea, nul disseisin. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The demandants are the heirs at law of Erastus Cowles, who died on October 28,1884, intestate, being then seventy-one years and nine months old. His wife died in 1861. The tenant claims under a deed from Erastus Cowles, dated August 28, 1884, and purporting to be “in consideration of one dollar, and other good and valuable consideration, rendered and paid ” by the grantee.</p> <p>Erastus Cowles for over thirty years before the date of this deed was seised and possessed of the land in question, it being his homestead.</p> <p>The demandants contended that the deed was a secret transaction. There was no evidence that there was any injunction of secrecy placed upon the witnesses to the deed, but Mr. Dickinson, one of the witnesses to the deed, on cross-examination, said that he might have told Mr. Clark, the insurance agent, the day after the deed was made, at the time he took the insurance policies to him, at the request of Mr. Cowles, to have the assent of the company to the transfer of said policy, that “ they did not care to have anything said about it.”</p> <p>There was evidence tending to show that a neighbor (Mrs. Howland), who knew that something had been done, but did not know that a deed had been made, said to Mrs. Marsh, one of the witnesses to the deed, about a week before Mr. Cowles’s death, that she hoped that, if any compensation had been given Mrs. Merchants, money would be given her instead of anything else. Mrs. Marsh said she did not feel at liberty to tell what had been done. Mrs. Carrie F. Dickinson, one of the witnesses to the deed, on cross-examination, said that she had not, prior to Mr. Cowles’s death, said anything to anybody except her husband about making the deed.</p> <p>The demandants called Edwin W. Clark, the insurance agent, and offered to prove by him that, on the second day after the deed was given, he met Mrs. Carrie F. Dickinson; that the matter of the insurance and the deed was spoken of between them, and that she requested him to say nothing about the deed and the transaction. The judge excluded the evidence.</p> <p>The demandants contended, and there was evidence tending to show, that Erastus Cowles, at the time he executed the deed, had not sufficient mental capacity to do the act, but was insane, and not of sound and disposing mind and memory; that he was then in such a weak and feeble condition of mind and body as to be easily influenced; and that the deed was procured by the undue influence and fraud of the tenant. There was evidence on the part of the tenant tending to show that Mr. Cowles was of sound and disposing mind, and that he executed the deed of his own volition, and without any undue influence from any one.</p> <p>The demandants called Henry C. Graves, who testified to doing certain work at the Cowles house in the spring of 1884, and that he had lived in Amherst for several years, and knew Erastus Cowles well during that time, and had met Mr. Cowles near the time of the execution of the deed, both before and after. He was asked the following question by the demandants: “If you have an opinion as to the mental condition of Erastus Cowles on August 28,1884, founded upon facts and circumstances within your personal knowledge, state what that opinion is, and the facts and circumstances upon which it is founded.” The judge excluded the question.</p> <p>The jury returned a verdict for the tenant; and the demand-ants alleged exceptions.</p> <p>After the verdict, the demandants filed a motion for a new trial on account of the alleged misconduct of one of the jurors. A hearing was had upon the motion; and the judge found the facts to be as follows:</p> <p>During the trial, and before the close of the evidence, Emerson Searle, a juror, residing in Northampton, had occasion to go from the post-office across the street to a store, upon private business, at a time in the day when the court was not in session. He crossed the street alone, and upon the sidewalk met two persons, one of whom was Challes Smith, the other Dr. Thomas Gilfillan. Neither of these persons knew that Searle was a juror, and neither of them was in any way engaged or interested in the case or the parties, or acting for or in behalf of either party. Charles Smith was about eighty years of age, had a store near where the meeting occurred, and was well known as a man whose faculties were much impaired by his advanced age. Searle did not seek any conversation with either Smith or Gilfillan, but, upon being accosted by Smith, stopped, was made known by Gilfillan to Smith, who did not recognize him, and was asked by Gilfillan what case was on trial in court. Searle replied, that it was the case of Cowles against Merchants; and Gilfillan asked if that was the case where the man deeded the property to the woman who took care of him. Searle replied, “Yes,” and thereupon Smith said, in substance, that he thought the man had a right to do what he did; that it was too common, in these days, after a man was dead, for the widow or heirs to question his right to dispose of his property, and that he did not care how many witnesses there were, or what the evidence was, it would not change his mind about the deed standing. Searle made no reply, and took no further part in the conversation than as above stated, and moved off alone about his own business. Searle had no improper motive in anything which he did upon the occasion, and neither Gilfillan nor Smith had any intention to interfere with the administration of justice.</p> <p>The conversation was partially overheard by an eavesdropper, who stood at such a distance as to catch incorrectly some portions of it, and who reported what he thought he heard to some person, who, after the trial, reported it to the demandants’ counsel.</p> <p>The demandants asked the judge to rule, as matter of law, that any conversation had by an outside person with, or in the hearing of, a juror during the trial of a cause, the natural or reasonable effect of which would be to affect the mind of such juror, would require the setting aside of a verdict and the granting of a new trial. The judge declined so to rule; and ruled that, upon the foregoing facts, he was not required, as matter of law, to set aside the verdict and grant a new trial; and, being of the opinion that the interests of justice did not demand that the verdict should be set aside and a new trial granted, overruled the motion. The demandants alleged exceptions.</p>

<p>The Pub. Sts. c. 27, § 11, authorizing a “ town ” to raise money by taxation “ for the purpose of celebrating any centennial anniversary of its incorporation,” refer to the act which was the beginning of its corporate existence, whether as a district or as a town.</p>

<p>Contract, to recover $182.87, for services performed for the defendant town as a temporary collector of taxes. Trial in the Superior Court, without a jury, before Brigham, C. J., who found the following facts:</p> <p>The defendant town, at its annual town meeting, on March 21, 1881, elected William C. Phelon to. be collector of taxes for the ensuing year, having previously, on the same day, voted to let the collection of taxes to the lowest bidder, and William C. Phelon having bid the collection of taxes for nine mills on a dollar for money actually collected. William C. Phelon failed to give the bond required by the Pub. Sts. e. 27, § 124. Thereupon the following paper, purporting to be signed by “J. C. Carpenter, M. B. Miller, and W. E. Barnes, Selectmen of Gran-ville,” and dated July 1, 1881, was on that day delivered to the plaintiff:</p> <p>“ To John W. Phelon, of Granville, Hampden County, Mass.: Whereas William C. Phelon, who was elected collector of taxes at the last annual election of said town, has failed to give the bond required by law of collector of taxes, and the office of collector has thereby become vacant, and is declared vacant by the subscribers, we, the subscribers,' hereby appoint you, the said John W., collector of taxes, pro tempore, of said town.”</p> <p>J. C. Carpenter, M. B. Miller, and W. E. Barnes were the duly elected and qualified selectmen of the defendant town for the year 1881; but J. C. Carpenter only signed said paper, and he put upon it the names of the other two selectmen, when they were not present, and without any authority or direction from them, unless such authority or direction is implied in the oral agreement of the said three selectmen, prior to the making of said paper, that the plaintiff should be appointed collector of taxes, as stated in said paper.</p> <p>Upon said paper, at the foot thereof, appears a certificate of a justice of the peace, that, on July 15, 1881, “ the above-named John W. Phelon personally appeared and made oath, according to law, that he would faithfully collect the taxes of the town of Granville according to law.”</p> <p>The certificate was delivered by the plaintiff to the clerk of the defendant town, recorded by him, and returned to the plaintiff, who has had the certificate in his possession since. When it was thus returned did not appear. The certificate was not otherwise filed with said clerk, or in his office. No assessors were elected by the defendant in the year 1881.</p> <p>Subsequently to the making of said paper, purporting to be the appointment of the plaintiff to be collector of taxes, the plaintiff executed and delivered to the defendant a bond in such sum as was required by said three selectmen, and with sureties to their satisfaction, for the faithful discharge by the plaintiff of the duties of the office of collector of taxes, agreeably to the provisions of the Pub. Sts. c. 27, § 124.</p> <p>Subsequently to the giving of said bond, namely, on August 26,1881, all of said selectmen committed to the plaintiff a warrant, signed by all of them, for the collection of the defendant’s taxes.</p> <p>The plaintiff, after said warrant was so committed to him, collected taxes — assessed by the defendant’s selectmen and stated in said warrant — amounting to the sum of $7300, and paid over the same to the defendant’s treasurer.</p> <p>There had been no vote of the defendant fixing the compensation of the plaintiff for collecting said taxes.</p> <p>The plaintiff and the defendant’s said selectmen made an express oral contract that the plaintiff should receive, for his services in collecting taxes under the warrant committed to him as aforesaid, one per cent of the amount of the taxes collected by him; but that, if, in addition to the taxes to which said warrant related, the plaintiff should collect certain school district taxes, he should be paid more than one per cent of the amount of such school district taxes collected by him. The plaintiff collected such school district taxes, and was paid for his services in doing so by the selectmen. The plaintiff made no formal return upon said warrant of his proceedings under the same in collecting said sum of $7300.</p> <p>The treasurer of the town for 1883 reported to the defendant that he had received of the plaintiff, on the tax bill of 1881, $1446.66, and said treasurer’s report was accepted by the defendant in town meeting.</p> <p>Upon these facts, the judge ruled that this action could not be maintained, and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort against two of the three persons constituting the board of selectmen of the town of Southbridge for the year 1883. The declaration alleged, that for three years prior to November 6, 1883, the plaintiff had resided continuously in the town of South-bridge, and had not changed his residence; that he was entitled to vote at the election for state, county, and other officers, held on said day; that, on November 1,1883, his name was on the register of voters, and upon the lists of voters; that the plaintiff appeared before the defendants, as selectmen of Southbridge, at a meeting of the board of selectmen, held on November 3, 1883, and furnished it'with evidence of his qualifications as a voter, and requested that his name should not be erased from said register and lists of voters, and also appeared at the polls at said election, and, offering his ballot, demanded the right and privilege of voting; and that the defendants knowingly and wrongfully caused his name to be erased from said register and lists of voters, and wrongfully refused the ballot so tendered by the plaintiff, and deprived him of the right and privilege of voting. The answer contained a general denial, and averred that the name of the plaintiff was not borne upon any list returned to the defendants by the collector of taxes for said town as of a person who had paid to him any state or county tax since the last preceding return of said collector. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff offered evidence of his qualifications as a voter at the time set out in his declaration, and to show that the defendants were members of the board of selectmen of Southbridge at the time alleged. He also offered evidence, which was not controverted, that on November 1, 1883, his name was recorded upon the record of persons entitled to vote in said town, known as the register of voters, kept by the selectmen, as required by law, and that he had voted at previous elections in said town, and that he had a legal right to do so by reason of residence and taxation; that prior to November 3,1883, he received from one of these defendants notice to appear before the board to show cause why his name should not be erased from said register; that he appeared before the board, before the close of registration, at a meeting of the board for revising and correcting the lists of voters, and answered such questions as were put to him by the board, and made such statements as he chose to make to them.</p> <p>The evidence was conflicting as to what took place before the board, and as to the time of the meeting.</p> <p>The plaintiff’s evidence tended to show that he went before the board on Friday evening, about eight o’clock, and Wheeler asked him if his wife had gone to Binghamton, N. Y.; to which he replied, that she had gone there temporarily, and might be back at any time, and might not be back at all; that she had taken such household goods as she wanted, and he had sold the rest; that he had been to the tax collector to pay his tax, and he could not find that any had been assessed to him; that he had paid a tax the year before, and had his tax bill with him; that his wife was living in a house belonging to him; that he did not intend to go there himself to live, but intended to stay in Southbridge; and that his business was there, and he intended to continue to make it his home there.</p> <p>The defendants offered evidence tending to show that the plaintiff appeared before the board on the Saturday afternoon before election, and, in answer to questions put him and otherwise, stated that he had moved his family to Binghamton, N". Y., in April, 1883; that they were to remain there permanently; that there had been no separation or divorce; that he had sent part of his household goods, and had sold the rest; that he was not assessed in Southbridge that year, but had been the year before; and that he claimed a home with his wife,1 but that he claimed the right to vote in Southbridge1. At the close of this interview the plaintiff was informed that the matter under consideration would be determined later.</p> <p>It was also in evidence, that at a later hour, and before ten o’clock in the afternoon of the Saturday preceding the election, representations were made, by a person other than the plaintiff, as to the law of domicil applicable to the plaintiff’s case and in the interest of the plaintiff’s right to registration, and thereupon, a vote being had by the board, the defendants voted that he had lost his domicil in Southbridge, and the third member of the board, stating that he was not willing to deprive the plaintiff of the right to vote, voted that he had not; and that the third member of the board, acting as clerk, having kept on a separate paper a list of the corrections to be made upon the register by the action of the board in accordance with said vote, afterwards, and without further consultation with, and without the actual knowledge of, the defendants, and before election day, erased the plaintiff’s name from the register of voters, and also from the check list to be used at the election then next to be had.</p> <p>The plaintiff offered evidence tending to show that on election day he went to the polling place to vote, and selected his ballot; that he found the defendant Wheeler with the voting list, who said to him, “Your name is stricken off the list,” and in reply to his inquiry, “Why? ” said to him, “ Because your wife went away, and you have not been assessed this year; ” that he demanded his right to vote, and Wheeler said to him, “ You cannot vote; ” that he declared to him that he had complied with all the requirements of law, and had a right to vote;' that he did not know which one of the three selectmen had charge of the ballot box and was receiving ballots, and that he did not offer his ballot to any one at the ballot box.</p> <p>The defendants offered evidence tending to show that on election day the defendants did not have charge of the check list; that Paige, the third member of the board, had charge of the ballot box, and the defendant Wheeler was acting as moderator of the meeting; that the ballot box was upon a table, upon a platform, and that voters passed up on to the platform to the check list, and, their names being found and checked, passed on to the ballot box and deposited their ballots; that the plaintiff did not go on to the platform- or by the check list, or offer his ballot to any of the board, or attempt to do either; that standing upon the floor of the hall he was informed by Wheeler, who looked at the register of voters, and said that his name was not upon the check list, and in answer to the question, “ Why? ” was informed by Wheeler that it was because he had stated to the selectmen that he claimed a home with his wife; that he thereupon said he had as good a right to vote as Wheeler had, and, after a suggestion by a bystander to demand the right to vote, he said, “ I do demand the right; ” that the plaintiff addressed Wheeler only, and neither of the other selectmen was appealed to or took any part in the conversation.</p> <p>It was conceded at the trial that the plaintiff was domiciled in Southbridge in the year 1882, and was at that time a legal voter; and that the only ground upon which it was contended by the defendants that he had lost his right to vote in that town in 1883 was by a change in his domicil from Southbridge to Binghamton.</p> <p>The defendants asked the judge to instruct the jury as follows: “1. The action cannot be maintained against either of the defendants, unless the plaintiff actually tendered his ballot, and it was refused by the defendants. 2. It cannot be maintained against both of the defendants, unless he actually tendered it to both of them, and they refused to receive it. 3. It cannot be maintained on the ground that the defendants erased his name from the list. 4. It cannot be maintained against either of the defendants, unless he offered them proof of his qualifications, before the close of registration, that was reasonably sufficient to satisfy men of fair and impartial minds, and that ought to have induced them in this particular case to put his name upon the register for the election in November then next ensuing. 5. It cannot be- maintained, unless the evidence of his qualifications was reasonably satisfactory, and not such as leaves the question in doubt. 6. A mere declaration that he claimed the right to vote, unaccompanied with an actual tender of his ballot, is not sufficient in law to constitute a tender of his vote that will support this action. 7. The action cannot be maintained against either of the defendants unless they had omitted his name from the voting lists after it had been returned to them by the collector of the town of Southbridge as that of a person who had paid a tax since the last return of the collector.”</p> <p>The judge refused to instruct the jury in the language of the foregoing requests, but instructed them as follows: “ The only cause of action set forth in the plaintiff’s declaration upon which he can recover, if he can recover at all, is for erasing his name from the register of voters, and not for refusing his vote at the polls on the day of the election. The action can be maintained if, upon all the evidence in the case, the jury are satisfied that the plaintiff appeared at a meeting of the selectmen, held for receiving evidence of the qualifications of voters and correcting the lists of voters, and furnished them with satisfactory evidence of his qualifications as a voter. The jury must find that the evidence furnished by the plaintiff to the selectmen was sufficient to show that he had not changed his domicil, and that the defendants caused his name to be erased from the register of voters. It will not be sufficient to enable the plaintiff to maintain his action, to produce such evidence to the jury upon this trial, without also showing that he furnished the same to the selectmen at the time and place before stated, when the selectmen met to revise and correct the list of voters. The plaintiff can have but one domicil at the same time, and his domicil in Southbridge will continue until he acquires or gains one elsewhere. To effect a change of domicil, the intent to change must be accompanied with an act of change, and the jury are to say whether there is evidence in the case to show a change of domicil. The defendants are liable, if the plaintiff furnished them sufficient proof of his qualifications as a voter, as aforesaid, without proving that they wilfully and maliciously caused his name to be erased.”</p> <p>The jury returned a verdict for the plaintiff, in the sum of $400; and the defendants alleged exceptions.</p>

<p>Contract to recover $76.99, for expenses incurred in the support of Johanna Hanley and her infant child as paupers. Writ dated February 9, 1884. Trial in the Superior Court, without a jury, before Barker J., who allowed a bill of exceptions in substance as follows:</p> <p>It appeared that on December 28, 1881, Johanna Hanley fell into distress in the plaintiff city, and was taken by its overseers of the poor to the Worcester City Hospital, which was maintained by the plaintiff, and was supported there by said overseers until February 13, 1882; and that during that period she was delivered of a child, which was also supported at said hospital until January 21, 1882, when it was taken away and placed by said overseers under the care of a nurse.</p> <p>On January 7, 1882, said overseers duly notified the overseers of the poor of the defendant town of the facts relating to said paupers, and requested their removal; and on January 21,1882, the overseers of the poor of the defendant duly answered, denying that said paupers had a legal settlement in the defendant town.</p> <p>The overseers of the poor of the plaintiff city, on or about March 1, 1882, paid to the nurse in whose care said child had been placed by them the sum of $9.85, for twenty-three days’ board and care of said child; and in this action the plaintiff seeks to recover said sum of $9.85 so paid for the board of said child, and also the sum of $67.14 for the board and attendance of the mother, Johanna Hanley, from December 28, 1881, to February 13, 1882, being six weeks and five days at the rate of $10 per week, which price it appeared was a reasonable charge for her support.</p> <p>Johanna Hanley was the wife of Francis E. Hanley, who was the son of Francis Hanley, deceased, and the plaintiff contended that Francis Hanley acquired a settlement in the defendant town under the provisions of the Pub. Sts. c. 83, § 1, cl. 11, which settlement, if acquired, it was agreed that Francis E. and said paupers followed.</p> <p>Francis Hanley, who had resided in the town of Westborough for about a year prior thereto, was enlisted and mustered into the military service of the United States on January 27, 1862, as part of Company H, 15th Regiment Massachusetts Volunteer Infantry, and died while in said service, on July 5, 1862.</p> <p>To prove that Francis Hanley was assigned to the town of North borough as part of its military quota, the plaintiff produced and offered in evidence the following documents:</p> <p>1. A supplementary descriptive roll of recruits forwarded to Camp Cameron from Worcester, Mass., dated January 29,1862, and sent by H. P. Jorgenson, recruiting officer of the 15th Regiment, to Adjutant General Schouler, and entitled “ Descriptive Roll of Recruits of the 15th Regiment of Infantry in the Massachusetts Volunteers under the command of Colonel Devens. Enlisted by Lieut. H. P. Jorgenson, Recruiting Officer 15 Reg.”</p> <p>2. The list of soldiers claimed by the selectmen of North-borough in a return to the Adjutant General’s office, made in pursuance of General Order No. 38 dated August 21,1862, an extract from which order is printed in the margin.* The name of Francis Hanley did not appear on this return.</p> <p>3. A list of soldiers claimed by the town of Westborough in a similar return to the Adjutant General’s office, upon which was the name of Francis Hanley, but the number of the regiment into which he had been enlisted was not stated therein.</p> <p>4. The table made by Adjutant General Schouler in October, 1862, assigning quotas to cities and towns, in numbers but without names, under General Order No. 52, an extract from which order is printed in the margin.† In this table the quota of the town of Northborough was stated to be ninety-seven, and the town was credited with seventy-eight men “ then furnished,” and nineteen men were “ called for.” These four documents were produced from the Adjutant General’s office.</p> <p>5. A printed book, entitled “ Record of the Massachusetts Volunteers 1861-1865, published by the Adjutant General under a Resolve of the General Court. Boston, Wright & Potter, Printers to the State, No. 79 Milk Street, 1870.” In this book, volume 2, in a list of the soldiers of the Fifteenth Regiment, appears the name of Francis Hanley, and opposite his name, in a column marked “ Residence or place credited to,” is printed “ Northborough.”</p> <p>The resolve referred to in said title, e. 98 of the' Resolves of 1866, was put in evidence. There was no further evidence in relation to this book. To the admission of this book as evidence the defendant objected, but the judge admitted it.</p> <p>Walter A. Kezar, called by the plaintiff as a witness, testified that he had been a clerk in the office of the Adjutant General of this Commonwealth from July, 1863, to the present time; and, against the objection of the defendant, was permitted to testify that in 1862 Francis Hanley was assigned by the Adjutant General to the town of Northborough as a part of its quota, that he was able to state this from an inspection of the descriptive roll (No. 1) ; that this department in 1862 was governed by the place of residence stated on the descriptive rolls in assigning credits to towns ; that he was able to state this from his knowledge of the custom of the department after he was employed there in July, 1863; that in said table (No. 4) Francis Hanley was included in the number of men credited to the town of Northborough ; that the Adjutant General made up said table (No. 4) from the residence stated in the descriptive rolls ; that the fact that the town of Westborough claimed Francis Hanley in its return (No. 3) had no effect in making up said table (No. 4), as the name of the regiment in which he was enlisted was not stated in said return. It further appeared from the evidence of Kezar, that there were no records of the department showing any assignment of credits by name to towns, and that he (Kezar) had no knowledge of what was done in the department until after his employment there in July, 1863, except as the same appeared of record, or what he had learned after his said employment. To the admission of all this evidence the defendant objected, but the judge admitted it.</p> <p>There was no other evidence that Francis Hanley was ever assigned to, or allowed as a part of, the quota of Northborough, under any call of the President during the civil war.</p> <p>The defendant asked the judge to rule- as follows: “1. There is no sufficient and competent evidence to prove that Francis Hanley was ever assigned to, or allowed as a part of, the quota of Northborough. 2. The plaintiff cannot in this action recover for the board and attendance furnished to Johanna Hanley by the plaintiff city prior to February 9, 1882, and can only recover the sum of $9.85, the amount paid, by the overseers of the poor of the plaintiff city for the board of the child and for the board and attendance of the mother which was furnished within two years prior to the date of this writ.” The judge declined so to rule, but ruled that the foregoing evidence was competent and sufficient to show that Francis Hanley was assigned to the town of Northborough as a part of its quota, and found for the plaintiff in the sum of $83.58, being the full amount claimed, with interest from the date, of the writ.</p> <p>To the admission of the foregoing evidence, and to the above rulings and refusals to rule, the defendant alleged exceptions.</p>

Bill in equity, filed February 7,1884, by William L. Wood, Sarah A. Collins, and Viola R. A. Belknap, against the town of Westborough, Charles Aldrich, and Abner Prentiss, and alleging the following facts : On April 6, 1877, the defendant Aldrich executed a mortgage of a parcel of land in Southborough to W. B. Wood, to secure a promissory note for $3140, to be paid in semiannual payments of $100 each, the first payment to be made in six months from said April 6.

<p>Bill in equity, filed May 21, 1884, to have declared void a mortgage deed executed by Azubah Brigham, the plaintiff’s testator, on the ground that said Azubah Brigham at the date of the execution of said deed was not of sufficient mental capacity to execute the deed. The bill alleged, and the answer admitted, that the plaintiff derived his title from the will of Azubah Brigham. The case was heard before Aldrich, J., who, allowed a bill of exceptions, in substance as follows:</p> <p>The following issue was submitted to the jury: Was Azubah Brigham of sufficient mental capacity, at the time the mortgage deed referred to in the bill was executed, to transact the business of executing such deed ?</p> <p>The mortgage deed was executed on June 15, 1882. The mortgagor died on December 6,1888, leaving a last will, executed on October 11,1882, by the provisions of which the plaintiff was made residuary devisee and legatee, and he was also one of the executors of the will.</p> <p>The defendants offered evidence tending to show that the mental capacity of the mortgagor was no less on June 15, 1882, than on October 11, 1882.</p> <p>The defendants offered in evidence the petition of the plaintiff for the probate of said will in the Probate Court for the county of Worcester; and as evidence of the mental soundness and capacity of the mortgagor at the date of the will, four months after the execution of the mortgage, they offered the adjudication of the Probate Court admitting the will to probate. The evidence was excluded, not on the ground that the date of the execution of the will was too remote from the date of the. deed, but on the ground that the adjudication of the Probate Court was not admissible for the purpose for which it was offered, on the issue before the jury; and the defendants excepted.</p> <p>Dr. William Curtis, one of the executors of the will, was a witness for the plaintiff. He testified that he was the family physician of Mrs. Brigham, the mortgagor, to the time of her death. He testified to various facts, and to his opinion that she was disqualified from doing such business as the execution of said mortgage deed at the time she signed it, by reason of her mental unsoundness. The first-named defendant, after the appointment of Curtis as executor, in April or May, 1884, had a talk with him about the' said mortgage. The defendants offered, to show by the evidence of said defendant, that, in said talk in May or April, 1884, Curtis did not state or contend, and never had stated or contended to him, prior to the bringing of this suit, that the mortgagor was incompetent to execute this mortgage when it was made. This evidence was excluded, and the defendants excepted.</p> <p>The jury answered the question submitted to them in the negative; and the defendants alleged exceptions,</p>

<p>A boiler and engine, cast together and weighing fifty-six hundred pounds, not attached to real estate except by being belted to shafting, do not necessarily, as matter of law, pass under a mortgage of the real estate, although they cannot be removed except by removing a shed built over them to protect them from the weather, or by enlarging an entrance to another building on the land.</p> <p>Machines separately constructed, adapted to the work carried on in the building in which they are, but which can be used in the same business elsewhere, and which are secured in position by nails, screws, cleats, and braces, and belted to shafting, do not necessarily, as matter of law, pass under a mortgage of the building and the land on which it stands.</p>

<p>A judgment was rendered for costs on a nonsuit of the plaintiff in an action in which the defendant was summoned to answer “ unto M., next friend of H., a minor.” M. entered the action, and appeared in it as the attorney for the plaintiff. Eleven years after the judgment was rendered, M. filed a petition for a review of the judgment, alleging that it should have been rendered against H., and not against M.; and that he had no knowledge that the judgment was against him until within one year before filing his petition. Held, that the judgment was not rendered “in the absence of the petitioner,” within the Pub. Sts. c. 187, § 22; and that the petition was filed too late.</p>

Tort for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant town.

<p>Petition to establish the truth of exceptions alleged by Horace H. Bigelow in an action brought against him by Augustus B. R. Sprague for publishing in a pamphlet a libel concerning said Sprague, which exceptions were disallowed by Barker, J., who presided at the trial in the Superior Court.</p> <p>The petition was referred by this court to a commissioner, to hear the parties and report his findings. So much of the commissioner’s report as is material to the points decided appears in the opinion.</p>

Petition for partition of a parcel of land in Somerset. At the hearing upon the question whether interlocutory judgment for partition should be awarded, the respondents contended that the premises should be sold, and could not be advantageously divided; but the court ordered an interlocutory judgment to be entered for partition. No exception to or appeal from that order was taken.

<p>Complaint for a violation of an ordinance of the city of New Bedford. At the trial in the Superior Court, before Mason, J., the jury returned a verdict of guilty ; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Complaint, in several counts, to a trial justice, for unlawful sales of intoxicating liquors. At the trial, in the Superior Court, on appeal, before Bacon, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Indictment, charging the defendant with procuring and hiring one Benjamin P. Soper to commit perjury, upon the trial of a complaint in the Police Court of Lynn, charging Elizabeth M. Hollis, the wife of the defendant in this indictment, and one John Rood, with the crime of adultery. The indictment alleged that, at the trial of said complaint, Soper testified that he went up a ladder and looked through a window into a room, and saw Elizabeth M. Hollis and John Rood lying together upon a sofa in said room, and that while they were lying together upon said sofa, he, said Soper, saw them committing adultery; whereas, in truth and fact, the said Soper did not go up a ladder, and did not look through a window and see the said Hollis and Rood lying together in said room, and did not see them committing adultery.</p> <p>Trial in the Superior Court, before Blodgett,• J., who allowed a bill of exceptions in substance as follows:</p> <p>It was admitted that Soper testified in the Police Court as stated in the indictment.</p> <p>Soper was called as a witness for the government, and testified that he did not go up the ladder, and did not look through the window, and did not see Mrs. Hollis and Rood lying upon the sofa and committing adultery.</p> <p>The government offered other evidence tending to show that the relative positions of the sofa and the window were such as made it impossible for any one to see the sofa, or persons lying upon it, by looking through the window, and then rested.</p> <p>The defendant then called one Mrs. May, and offered to_ show by her that, before the time when the alleged adultery was committed, as sworn to by said Soper in the Police Court, she had seen the said John and Elizabeth in the act of embracing and kissing each other, and in other acts of familiarity, but the judge ruled that the evidence was irrelevant, and excluded it.</p> <p>The defendant testified, in his own behalf, that he and Soper were together when Soper went up the ladder and looked in at the window, and that, immediately before Soper went up and looked through the window, he himself did the same thing, and then saw the parties on the sofa and in the act of adultery.</p> <p>After the testimony for the defendant was closed, the government called the said Rood and Elizabeth M. Hollis as witnesses, and offered to prove that at the time in question they did not commit the crime of adultery, and, the defendant consenting that this testimony might be received at this stage of the trial, Eood and Hollis each testified that at the time in question they were not upon the sofa together, and did not commit adultery.</p> <p>The defendant did not thereafter renew the offer of the testimony which had been excluded, as before stated.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Complaint, on the Pub. Sts. c. 100, § 12, to the Municipal Court of Boston, alleging that the defendant, who was licensed to sell intoxicating liquors on certain premises, used by him for such sale, placed and maintained upon said premises a certain screen, blind, shutter, curtain, and partition, in such a way as to interfere with a view of the business conducted upon the premises. and with a view of the interior of said premises.

<p>Indictment on the Pub. Sts. c. 202, § 32, in eight counts. The first count alleged that the defendant, on March 24, 1885, at Boston, “feloniously, wilfully, and maliciously did mingle a certain quantity, to wit, two ounces, of a certain poison, to wit, white arsenic, with certain food, to wit, two quarts of meal, with intent then and there that the same should be cooked and eaten ” by one Lillian C. Cram, “ with the intent then and there to injure and kill ” said Lillian C. Cram.</p> <p>The second count was in the same language as the first, except that the words Elizabeth A. were used instead of Lillian C.</p> <p>The third and fourth counts were similar to the first and second, respectively, except that the date of the offence was alleged to be on April 19, 1885.</p> <p>The last four counts corresponded to the first four, respectively, except that the poison was not designated, and a more particular description of it was alleged to be unknown.</p> <p>In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment, because it was not set forth or alleged in either count thereof that the defendant knew that said poison alleged to have been mingled with said food was arsenic or poison. Aldrich, J., overruled this motion.</p> <p>It appeared at the trial, that the defendant had lived and boarded at the house of said Elizabeth A. Cram for some months prior and up to March 25, 1885, when he left; that, on May 19, 1885, said Elizabeth A. Cram and Lillian C. Cram ate of some bread, made the day before from certain Indian and rye meal, which, they testified, had been in their house at the time of and prior to the defendant’s leaving, and that, upon eating said bread, they became violently sick; that, about the middle of February, 1885, the defendant bought a small box of what is known as “ Rough on Rats; ” and again, on the 20th of the same month, he bought another box of the same article, both manufactured by Ephraim S. Wells of New Jersey. These boxes were not in evidence, and there was no direct evidence as to what became of them other than the declaration of the defendant himself at the time of purchasing the same, that he wanted them for the purpose of killing cats and rats. But there was evidence tending to show that there was but one article called “Rough on Rats;” that that article was manufactured by said Wells; and that it was a uniform article.</p> <p>Dr. Babcock, a chemist and a witness for the government, testified that he received at different times a quantity of Indian and rye meal, and a small piece of brown bread, to analyze. This piece of bread was a part of the loaf of which Elizabeth A. Cram and Lillian C. Cram had eaten, as above stated, and the meal analyzed by Dr. Babcock was part of the several parcels of meal out of which the bread was made. He testified that in seven hundred grains of the Indian meal he found nineteen grains of white arsenic; and that in seven hundred grains of the rye meal he found five and eight-tenths grains of white arsenic; and in the bread he found a large quantity of white arsenic, but did not determine the amount. He also made an analysis of a box of “Rough on Rats,” manufactured by said Wells; and testified, against the defendant’s objection, that the material in the box which he examined consisted almost wholly of white arsenic, colored with a little lamp-black.</p> <p>The judge instructed the jury that, before they could find that the defendant had purchased white arsenic in the shape of the article called “ Rough on Rats,” they must first determine that the article of that name purchased by the defendant was the same as that analyzed by Dr. Babcock.</p> <p>On cross-examination of Elizabeth A. Cram, a witness for the government, it was shown that she had preferred several other charges against the defendant prior to the finding of this indictment, and furnished the police with evidence thereof, in order that they might procure warrants thereon for the defendant’s arrest; and that she had charged him with cutting her dead husband’s picture and several dresses, upon leaving her house, March 25, 1885, and that on this charge she procured his arrest on April 4, 1885, for which an indictment was pending.</p> <p>The defendant contended that these various charges, including the charges in this indictment, were all parts of a premeditated plan on the part of Elizabeth A. Cram to persecute the defendant ; and, to show this, as also to contradict said witness, he offered to prove that the injuries to said picture were done a year before, and that said witness knew that the defendant could not have been guilty of that charge; but this evidence was excluded, as relating to a collateral matter, which was itself the subject of an indictment now pending against the defendant.</p> <p>After the evidence was all in, the defendant asked that the first four counts be dismissed, because of a variance, inasmuch as it was not shown that the two ounces of arsenic in two quarts of meal were the proportional equivalent of the five and eight-tenths grains of arsenic found in seven hundred grains of rye meal, or the nineteen grains of arsenic found in seven hundred grains of Indian meal. But the judge refused so to do.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>If a person is licensed to sell intoxicating liquors “in the front room and rear room” on a certain floor of a building, and is not required by the licensing board to remove the partition between the two rooms, that partition is not within the provisions of the Pub. Sts. c. 100, § 12, and the St. of 1882, c. 259, § 1, although it may obstruct the view of the interior of one or the other of such rooms from the public street.</p>

Indictment, on the Pub. Sts. c. 210, § 8, alleging that the defendant, on July 28, 1884, at Malden, “ a certain building, to wit, the dwelling-house of one Sylvester K. Abbott, there situate, in the night-time of said day, feloniously did attempt to break and enter, with intent the goods and chattels in said building, then and there being found, then and there feloniously to steal, take, and carry away, and in such attempt did then and there break and open three windows in…

<p>At the trial of a complaint against a married woman, for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors, the evidence showed three sales, two in the presence of the defendant's husband, and a third when he was in the yard outside the kitchen where the sale was made. As to this last sale, the jury were instructed that “no presumption arises that sales made by the wife, when the husband is on the estate, or on the premises, not in her presence, are made under constraint of the husband, and the defendant would be liable for any such sale so made.” Held, that the defendant had good ground of exception.</p>

<p>At the trial of a complaint for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors, a witness testified, for the government, that she had several times procured liquor at the defendant’s house ; and that she went to the house on a certain day to get liquor. On cross-examination, she denied that she liad ever been forbidden by the defendant to go to Ms house, and also denied that she had any ill feeling towards the defendant. The defendant offered to prove that, at one time several months before the time of the alleged offence, when the witness had gone into the defendant’s yard to get water, the defendant had ordered her to leave the yard, and to keep out of it in future. The judge excluded the evidence offered. Held, that the defendant had no ground of exception.</p> <p>At the trial of a complaint for keeping a tenement used for the illegal sale and illegal keeping of mtoxieating liquors, an ofiicer, who searched the defendant’s premises and made a seizure of liquors, was asked, on cross-examination, whether, at that time, he had reason to believe, and believed, that there were other places in the town where liquors were sold in violation of law, and where no search or seizure had been recently made by him. This question was excluded. Held, that the defendant had no ground of exception.</p>

<p>At the trial of a complaint for keeping intoxicating liquors with intent unlawfully to sell the same, there was evidence that the defendant had been acquitted on a charge of keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, upon the same evidence as that produced at the present trial. The judge ruled that such judgment of acquittal was evidence competent to be considered by the jury in the defendant’s favor, but was not conclusive. Held, that the defendant had no ground of exception.</p> <p>No inference either for or against the defendant in a criminal case can be drawn from his omission to testify as a witness.</p>

<p>The Superior Court has no jurisdiction, under the St. of 1883, c. 223, of a petition, under the Pub. Sts. c. 27, § 129, by ten taxable inhabitants of a town, to restrain the town from an alleged illegal expenditure of money.</p>

<p>If a trial justice, in an action against the administrator of an estate, erroneously renders a judgment for damages and costs against the estate, and the execution issued thereon is declared illegal, an order of the Superior Court, upon a petition for a writ of scire facias to obtain a new execution on. the judgment, that execution should issue against the estate for the damages, will be affirmed by this court, upon the plaintiff entering a remittitur for the amount of the costs;</p>

Complaint for an unlawful sale of intoxicating liquor, on January 21, 1885, at Easton.

Contract upon a promissory note for $135.98, dated December 11, 1883, payable in twenty days after date, to the order of the plaintiffs, and signed by the defendant. Trial in the Superior Court, before Staples, J., who directed a verdict for the plaintiffs; and the defendant alleged exceptions. The facts appear in the opinion.

Petition, by ten taxable inhabitants of the city of Taunton, alleging that said city, by its city council, had voted to pay from its treasury the sum of $200 for the purpose of paying the Taunton Cadet Band for twelve public concerts to be given by said band in said city; that only two of the concerts had been given by said band; and that none of the money had yet been paid.

<p>A. was surety on three promissory notes made by B., in which C. was beneficially interested. An action had been begun upon them, and, B. having gone into bankruptcy, they had been proved against his estate. A., after some negotiation with 0. about a compromise and settlement of his liability, paid a sum, which was much less than the amount of the notes, and received back an agreement, by which C. as principal, and the other owner and the holder of the notes as sureties, agreed to indemnify and save harmless A. from the notes, and from any judgment upon the same. The agreement continued as follows: “It is expressly agreed that said sum paid by A. is not in part payment of said notes, or either of them, and is not to be applied in any manner to diminish or affect said notes, or the liability of said principal or sureties, but the same is paid by A. and received by C. as the consideration of this indemnity,” Subsequently the creditors of B. formed a corporation, and purchased his business by leave of court. A. then brought an action against 0., on the ground that the result of that transaction and of his payment had been to give C. enough more than the full amount of his debt to enable him to reimburse A. to the extent of such payment. Held, that the action could not be maintained.</p>

<p>An objection that the declaration in an action on the Pub. Sts. c. 136, §§ 26, 27, against the heirs of a deceased person, for a breach of the covenants in a deed of land from him to the plaintiff, does not allege that the estate of the deceased has been settled, and that the defendants have received any estate from him, must be taken by demurrer; and it is too late to take it at the trial.</p> <p>In an action for a breach of the covenants in a deed of land, the construction of the .deed is for the court.</p> <p>A deed of land contained the following boundaries : “ thence southerly by the highway to land of M.’s mill privilege, thence southerly by M.’s land to the highway ; ” and also contained general covenants of seisin, against incumbrances, and of warranty. Held, that the deed referred to the “ land of M.’s mill privilege ” merely as a monument or boundary of the land conveyed; and that the mill privilege was not taken out of the operation of the general covenants of the deed.</p> <p>Mere non-user of a mill privilege for more than twenty years, if unaccompanied by any decided or unequivocal acts of the owner inconsistent with the continued existence of the easement, will not extinguish it.</p>

<p>Indictment in three counts. The first count alleged, that on July 1, 1883, certain articles, the goods, chattels, and property of the Boston and Lowell Railroad Corporation, were feloniously stolen, and that the defendant afterward, on the same day, “ the goods, chattels, and property aforesaid, so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive and have, and did then and there aid in the concealment of the same,” he “ well knowing the said goods, chattels, and property to have been feloniously stolen, taken, and carried away.”</p> <p>The second and third counts were similar in form, but the property was in each differently described, and at a different date, namely, on August 1, 1883, and September 1, 1883, respectively.</p> <p>In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment, “ for the reason that no crime or offence is fully and plainly, substantially and formally described therein; in that it sets forth three distinct allegations of larceny, but does not clearly state whether there were one, two, or three receivings of the articles alleged to have been stolen, each allegation of feloniously receiving referring to all the preceding articles mentioned in the several allegations of theft.” This motion was overruled; and the defendant excepted.</p> <p>At the trial before Brigham, C. J., the evidence for the government showed that certain old material, iron, and metals, such as are mentioned in the indictment, having been stolen from the Boston and Lowell Railroad Corporation, were afterward, on August 29, 1883, found in the shop of the defendant, who was a licensed junk-dealer in Cambridge.</p> <p>James McCarty, a witness for the government, testified that he wa.s in the employ of the Boston and Lowell Railroad Corporation a number of years; that, for a long period before August 29, 1883, while in such employ, he had been in the habit of appropriating iron and other materials of the corporation which were taken from old cars in the repair shop, and selling the same to the defendant; and that the defendant induced him to procure them for him.</p> <p>This witness was indicted in said county for the larceny of said property, forfeited his recognizance, and his sureties have been sued, which suit is now pending. After default and suit, he has come into court and pleaded guilty to the indictment, but has never been sentenced.</p> <p>Two police officers, Murray and Moore, testified, for the government, that they went to the defendant’s junk-shop on said August 29, and learned from him that he had no book as required to be kept by junk-dealers; that, with two other persons, employees of said corporation, they found there a considerable quantity of old iron, among which was the property described in the third count of the indictment; and that the property so described was taken away and restored to said corporation. A small portion of the property thus taken was positively identified as belonging to said corporation, and the remainder resembled property which belonged to it.</p> <p>The two police officers also testified that the defendant, when asked where he obtained the property taken away, replied that he bought it of a man on the street whom he did not know; that he lived on Third Street, and he did not know his name; but that he finally said, on being pressed, that his name was McCarty, and that he worked on the Boston and Lowell Railroad.</p> <p>Against the objection of the defendant, officer Murray was permitted to testify that, as inspector of junk-shops, which office he then held, in May, 1883, he went to see the defendant at his shop in regard to whether he should receive a new license, and then asked him whether he kept a book, such as the law requires of junk-dealers, and he said that he had not; that he, Murray, told him he must do so, and, if he did not, he should report against his receiving a new license; and that the defendant then promised to keep a book, and Murray reported in his favor, and he had a new license granted him.</p> <p>The defendant testified that he bought the property of McCarty, but that he honestly did so; that he had known McCarty by sight for a long time before he bought anything of him; that he saw him frequently pass his premises on his way to work, but did not know where he was employed; that he knew he lived near by, on Third Street; that McCarty took him to his house, and showed to him there the first lot sold him, telling him in explanation that he bought it, attached to wood, as old material, pointing out to him the wood, which was broken and piled up as fire-wood, and saying that he had opportunities of purchasing such old material. He further testified, that there was nothing he purchased of McCarty but what junkmen usually deal in and have, and the property in itself would excite no suspicion if presented for sale to a dealer in junk; that he was sixty-two years old; that he had lived in Cambridge twenty-four years, and was engaged in the junk business all that time there, receiving a license each year; that he had a family, and was a real-estate tax-payer; that he did not say to the officers that he did not know of whom he bought the property, and that, on the contrary, he told them at once, without hesitation, that he bought it of McCarty; that he gave the officers information where McCarty lived; and that, when McCarty was afterwards arrested by these officers, he identified him at the police station as the man of whom he bought.</p> <p>Two witnesses, large wholesale dealers in junk in the city of Boston, testified, for the defendant, that the prices paid to McCarty were fair market prices for the material when purchased, and more than such was now worth; that such property was commonly found in junk-shops and dealt in by junk-dealers; and that, while the offering of a single spring for sale by a stranger might be suspicious, the offering of a quantity of this material, by one known to the dealer, would excite no suspicion that it had been dishonestly obtained.</p> <p>None of the property was produced in court by the government, but certain coil springs and an elliptic spring were shown in court by the defendant, which were junk, and had come from the junk-shop of one of the wholesale dealers mentioned; and the witnesses for the government in the employ of said railroad admitted that these were good samples of, and in as good condition as, the property bought of McCarty.</p> <p>The defendant introduced the testimony of many respectable witnesses, all of whom were old residents of Cambridge, and had lived and done business very near to the defendant, some upon the same street with him, and had known and seen him and those who knew him almost daily for many years. Among these were the chief of the state police, aldermen and ex-aldermen, and members of the council and of the legislature. All of these witnesses testified to the uniform good character of the defendant.</p> <p>The defendant asked the judge to instruct the jury as follows: “ 1. If the jury are not satisfied beyond a reasonable doubt that the accused knew that the goods were stolen, he is entitled to an acquittal. 2. To justify a conviction, it is not sufficient to show that the accused had a general knowledge of the circumstances under which the goods were stolen, unless the jury are also satisfied that he knew that the circumstances were such as constituted larceny. 3. Good character, like all other facts in the case, should be considered by the jury, and if therefrom a reasonable doubt is generated in the mind of the jury as to the guilt of the accused, it is their duty to acquit.”</p> <p>The judge refused to give these instructions, and, upon the matters embraced therein, instructed the jury as follows:</p> <p>“ When a man is put on trial charged with a criminal act, he has a right to put in evidence the reputation which he has from those who know him, his character in other words, by way of rebuttal of the inference that he might be likely to commit the act of which he is accused; if a person is charged with any act which implies dishonesty, he has a right to put in his reputation of being an honest man in order to furnish evidence that the character of the man accused is such that one would not be likely to expect crime to be committed by him. Character may properly be thrown into the scale to increase any reasonable doubt that the jury might have on the case in question; of course character is no excuse, a good name is no answer against decisive evidence; it is in a case where the evidence is doubtful, and the mind of the jury is in doubt, that the evidence of good character is thrown into the scale in behalf of the man; of course, if a man should come before a jury, a credible witness, and say he saw the accused party commit a crime, it would be no answer for that party to say ‘my character has always been good.’ It is important, where the evidence to convict is doubtful, that it should be thrown into the scale in his favor, but where the evidence is strong, and his guilt is impressed on the minds of the jury, of course it is not of the slightest consequence.</p> <p>“ He must know that the goods were stolen, but he does not need to know the hour nor day they were stolen; he must undoubtedly have notice which would put him on his guard as knowledge that the goods were acquired and turned over to him by a person not taking them by mistake, not by right, but taking them as thieves take them, that is, for the purpose of defrauding the railroad and cheating them out of their property.”</p> <p>The defendant’s counsel here suggested, “ by larceny,” and the judge gave this further instruction;</p> <p>“ By the taking and carrying away of property, it is the fraudulent taking away of the property of another for the purpose of converting it to the taker’s use to deprive the owner of it. These goods must have been taken that way, and were stolen goods; they must have been taken by McCarty as thieves take them, not by mistake or accident, or by taking from those who had no right to give, but taking when he knew that he had no right to take them.”</p> <p>The jury returned a verdict of guilty on the third count, and of not guilty on the other counts; and the defendant alleged exceptions. ,</p>

Complaint to the Municipal Court of the city of Boston, on the Pub. Sts. e. 57, § 5, alleging that the defendant, on July 12, 1884, at Boston, had in his possession one pint of adulterated milk, to wit, milk containing less than thirteen per cent of milk solids, with intent to sell the same.

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

<p>An ordinance of the city of Boston, providing that no person shall, except by permission of the committee of the city council having charge of the public grounds, deliver a sermon, lecture, address, or discourse on the Common, or other public grounds, is reasonable and valid.</p> <p>At the trial of a complaint for the violation of an ordinance of a city, which is a reenactment of a similar ordinance, evidence that the previous ordinance had been repeatedly violated and disregarded is immaterial and inadmissible.</p> <p>The provision of the Pub. Sts. c. 27, § 21, requiring the by-laws of towns, after approval by the Superior Court, or a justice thereof, to be recorded in the office of the clerk of that court, does not, by force of the Pub. Sts. c. 28, § 2, apply to the ordinances of the city of Boston.</p> <p>The provision of the Revised Ordinances of the city of Boston, that they “ shall be published two weeks successively in three daily newspapers published in the city,” is directory, and a compliance with it is not a condition precedent to the validity of an ordinance, especially if the ordinance is a reenactment or continuation of a similar ordinance which was duly published.</p>

<p>Contract, for the benefit of M. B. Slocum, for the breach of a bond executed by the defendant Riley as principal, and by the other defendants as sureties, and conditioned for the faithful performance by Riley of his duties, as a constable of the city of Fall River, in the service of all civil processes committed to him. After the former decision, reported 138 Mass. 336, the case was tried in the Superior Court, before Staples, J., who directed a verdict for the defendants ; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>A., who held a first mortgage on certain premises, given by B., of which there had been a breach of the condition, paid a second mortgage ón the premises, and also certain debts owed by B. for which his equity of redemption had been attached. B. then conveyed the premises, by a warranty deed absolute in form, to A., who gave to B. a bond conditioned to reconvey the premises to him upon the payment of a certain sum within one year. B. did not pay the sum named within the year, and, by an oral agreement between the parties after the expiration of the year, B. continued to occupy the premises, and paid a stated sum monthly to A. as rent, for five years, when A. gave him a notice to quit, in due form and duly served, for nonpayment of rent. Held, that A. could maintain an action on the Pub. Sts. c. 175, against B., to recover possession of the premises.</p>

<p>The charter of a corporation, which was granted by a foreign government, provided that no subscriber to the capital should be individually liable for any debt or liability of the corporation beyond the par value of the stock subscribed by him; and that no holder of stock in the corporation should be proceeded against for the collection of any debt of the corporation until judgment thereon should be obtained against the corporation, and an execution on such judgment should be returned unsatisfied. Held, that a bill in equity, by a creditor of the corporation, to reach the amount remaining unpaid upon a subscription for the stock of the corporation, could not be maintained, unless the plaintiff had recovered a valid judgment against the corporation.</p> <p>The charter of a corporation, granted by the Dominican government, constituted a part of a document called “ Convention for the lease of the Peninsula and Bay of Samana, and for other purposes.” By one article, the charter was to become operative on January 1,1873, and was to continue in force for ninety-nine years, upon condition that the corporation should pay to the Dominican government a certain sum annually, in advance, on the first day of January of each year. The next article provided that “ this convention ” might be declared null and void by “ the government of the said republic ” whenever the corporation should fail to fulfil the conditions established in the preceding article, except in case of war, or of other controlling circumstance duly attested, when thirty days’ grace should be allowed, counting from the first day of January of the year in which the payment should he made. The corporation was organized, and the rental for the first year, which was due January 1, 1873, was duly paid. In November, or December, 1873, the government which had granted the charter was overthrown by a revolutionary army under G., and a provisional government was established. In the latter part of December, 1873, G. was elected President, and on April 6,1874, took the oath of office, but he acted as President, and was, in fact, the supreme executive of the republic from the beginning of December, and was recognized as such by the citizens. From December into March, the corporation had various communications and dealings with the G. government, which it also recognized as the government of the republic. More than the thirty days of grace allowed by the charter in case of war had elapsed; and, on March 25, 1874, the G. government made a decree, reciting the stipulation for rent in the charter, the dealings between the corporation and the present government, and the default on the part of the corporation; and declared that the agreement entered into between the Dominican government and the corporation for the renting of the peninsula and bay of Samana “ is, and is declared from this date to be, in virtue of that agreement itself, rescinded in all its parts, and null, and of no value or effect.” The decree also provided that “ the company shall make good the amount for reexchange for the drafts protested through its default, and the proportionate amount of the rent which is due from the first of January to the date of this decree.” The corporation was thereupon forcibly ejected from the territory which it had occupied, and has never since had any possession or control of the property which had been possessed and occupied by it before under the grant; and the corporation has never since been recognized by the Dominican government as a corporation under its laws. A consul appointed by the G. government was recognized by the United States government on July 18, 1874. A creditor of the corporation brought an action against it in the State of New York on April 8, 1874, in which judgment was rendered against the corporation on January 14,1875. Held, in an action by the creditor to enforce the liability of a stockholder of the corporation, that the corporation was dissolved by the decree of the G. government of March 25, 1874and that the judgment against the corporation was void for want of jurisdiction.</p>

<p>It is no defence to an action under the Pub. Sts. c. 136, § 19, against an administrator de bonis non, with the will annexed, that the original executor, who was also the residuary legatee, gave a bond to pay debts and legacies.</p> <p>A testator by his will bequeathed $500 to his wife, “ to -be held in trust by her ” for his granddaughter until the granddaughter should be fifteen years of age, then to be deposited in the bank for her by her guardian until she.should be twenty-one years of age; the granddaughter “ to have the interest thereof each year.” The will also gave the residue of the estate to .the wife, and appointed her executrix. The wife gave bond to pay debts and legacies, but gave no bond as trustee. She, however, set apart $327.50, which would have amounted to $500 on the granddaughter arriving at the age of fifteen years, which sum she afterwards used for her own purposes, and died without paying the legacy. An administrator de bonis non, with the will annexed, was appointed, who filed an account, which was allowed by the Probate Court, after notice by publicatiou. At this time the granddaughter was a minor, without a guardian, and had no personal notice of the filing of the account. Many years afterwards, when the granddaughter was of age, she brought an action against the administrator de ■ bonis non to recover the legacy and interest. Held, that the action could be maintained.</p>

<p>A claim against a city for damages occasioned to land by changing the grade of a street cannot be submitted to arbitration under the Pub. Sts. c. 188.</p>

Writ of review to reverse a judgment recovered by the defendants in review against the plaintiff in review. Trial in the Superior Court, without a jury, before Mason, J., who allowed a bill of exceptions, in substance as follows : The defendants in review, shoe manufacturers in Haverhill, in 1876, caused to be shipped from Philadelphia a packing-case containing a show-case which had been used by them to exhibit boots and shoes at the Exposition.

<p>In an action for obstructing a watercourse by a dam, and thereby preventing the flow of water to the plaintiff’s pond, there was evidence, in behalf of the defendant, that, in making a pond on ins own land, he tapped some springs of water, and that more water at all times ran down to the plaintiff’s pond, through the watercourse, after the construction of the defendant’s pond than before, by reason of the raising of the defendant’s draw-gate from time to time, the overflow from the pond, and leakage. Held, that the defendant was not entitled to a ruling, that, if because of the defendant’s opening up new sources of supply to his pond, the overflow or amount that ran down to the plaintiff’s pond was equal to or larger than before, the plaintiff could not recover.</p>

<p>Contract for breach of an agreement to sell and deliver a quantity of straw board. Writ dated March 3, 1884. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:</p> <p>Rufus Thomas, one of the plaintiffs, testified that the plaintiffs were engaged in the manufacture of boxes, some of which were made of straw board, in Lynn; that in the latter part of August, 1879, one Charles N. Wells, who was a travelling salesman of the defendants and a son of one of the defendants, called upon the witness, at his place of business in Lynn, and asked him to purchase straw board, an article the defendants dealt in as middlemen; that after some talk as to price and the condition of the market, the plaintiffs agreed to buy fifty tons of straw board, with the privilege of having fifty tons more, if they, the plaintiffs, elected to take it, at the price of fifty dollars per ton, five per cent off in sixty days, or three per cent additional off if paid for on delivery; the straw board to be delivered in Lynn, at the depot of the Eastern Railroad Company, free of expense to the plaintiffs, within six months from said time, to wit, the last week in August, 1879, and in such quantities and in such sizes as the plaintiffs should require and order; that a few days after this conversation Charles 14. Wells again called upon said Thomas at his place of business, who informed him, the said Wells, that he would take the one hundred tons under the terms above set forth. The plaintiffs also called one Horace F. Simonds, who at the time of the making of the alleged contract was in the employ of the plaintiffs as bookkeeper, and conducted and wrote the correspondence of the plaintiffs in business matters, who testified substantially to the same effect, in relation to said contract.</p> <p>It was admitted that the plaintiffs had had no dealings with the defendants from the June prior to the making of the alleged contract. The defendants admitted the right and authority of Charles N. Wells to make such a contract, but denied that the same was made; it was admitted by the defendants that they had sold and delivered straw board after the last part of August, 1879, but denied that it was sold under any contract for one hundred tons.</p> <p>The defendants introduced as evidence certain letters written by the plaintiffs to the defendants after August, 1879, and within the alleged time of six months, which the defendants claimed contained statements inconsistent with the plaintiffs’ claim that such a contract was made, and also letters written by the defendants to the plaintiffs in answer to letters of the plaintiffs. A letter dated November 14,1879, written by the defendants to the plaintiffs, was put in evidence, in which the defendants stated that the plaintiffs’ order was filled. Other letters passed between the parties, and up to this letter of November 14, 1879, whenever a letter was sent by the plaintiffs to the defendants that required an answer, the defendant Wells answered it. A letter dated November 15,1879, from the plaintiffs to the defendants, was put in, and was an answer to the letter dated November 14. In this letter the plaintiffs stated that they had bought fifty tons, with the privilege of having fifty tons more at the same price. The plaintiffs then offered in evidence a letter dated November 17, 1879, which they contended was in answer to their letter of the 15th. No other answer to said letter was sent. This letter was signed “ White & Wells,” and underneath the firm name was written “ C. N. Wells.”</p> <p>The defendant Wells was called as a witness by the plaintiffs to prove the handwriting of the letter, and, in answer to the plaintiffs, against the objection of the defendants, testified that the letter had the appearance of the handwriting of said Charles N. Wells, but that he would not swear to it.</p> <p>Prior to this, a letter dated July 8, 1878, purporting to have been written by Charles N. Wells, had been put into the case, the genuineness of which was not disputed. The plaintiffs contended that a comparison of this with the offered letter would establish the genuineness of the latter. The defendants objected to the admission of this testimony, but the judge admitted the same.</p> <p>This letter of November 17 was then, against the objection of the defendants, read to the jury, and put in evidence. The letter contained the following: “Yours of the 15th is at hand and contents noted. Your understanding about the board is correct, and you shall have it at the price named by me when at your place, and as fast as the mill can make it.” No direct evidence was offered tending to show that Charles N. Wells had any authority to answer any letters for the defendants, or had anything to do with the defendants’ correspondence.</p> <p>After the plaintiffs had closed their case, the defendant Wells, in his own behalf, testified that Charles N. Wells was not, and never had been, authorized to do any letter writing for the defendants, that it was no part of his duties, that it was the duty of the defendant Wells, that he had charge of it, that he alone had the right to do the correspondence, and that all letters written by his firm were copied in a letter press before being sent away; that he never saw the letter purporting to have been written by his son and salesman until it was produced in court, and that he never heard of it before the trial of this cause; and that when he received the letter of November 15,1879, he did not answer it, as he thought his letter of November 14th was final and sufficient.</p> <p>It also appeared that this letter purporting to have been written by his son had not been in a letter press; that it was written on paper that was the same as the defendants used in their office, and had their printed letter-head upon it.</p> <p>The salesman, Charles N. Wells, was not present during the trial, and it appeared in testimony of the defendant Wells, in his own behalf, after the letter had been put in, that he was travelling somewhere in the West for a firm other than the defendants, and was not at the time of the trial in their employ; that his father did not know where he was; that he had seen him some ten days before the trial, but he did not suppose the case was coming on for trial this term, and did not keep him for a witness; and that his son never informed him that he had written any létters to the plaintiffs.</p> <p>The presiding judge left it to the jury to determine whether said letter should have any effect against the defendants upon the whole evidence, and in view of the law, which was fully stated by the judge, in a manner to which no exception was taken.</p> <p>It was agreed that, if the plaintiffs were entitled to recover, they were entitled to recover for the failure to deliver forty-six and six fortieths tons, and that the measure of damages should be ten dollars per ton.</p> <p>The jury were instructed, that, if they found for the plaintiffs, they must compute interest from the date of the demand, which was December 3, 1879, and not from the date of the writ.</p> <p>The jury returned a verdict for the plaintiffs in the sum of $605.54; and the defendants alleged exceptions.</p>

Contract, against Amos C. Bradford and Henrietta Bradford, on an account annexed, for rent of a store in Salem.

<p>Writ oe entry, dated June 12, 1882, by the assignee in bankruptcy of Frederick Perley, to recover a parcel of land in Danvers. Plea, nul disseisin. The tenant was also allowed to file an amended plea, alleging that the action was barred by the U. S. Rev. Sts. § 5057.</p> <p>Trial in the Superior Court, without a jury, before Staples, J., who allowed a bill of exceptions, in substance as follows :</p> <p>Frederick Perley was seised of the demanded premises, and in peaceable possession of the same, under a deed from John B. Peirce and others, dated April 1, 1859, and recorded April 2, 1859, which possession continued until the commencement of proceedings in bankruptcy against him, in the United States District Court for the District of Massachusetts, on December 23, 1868. He was adjudged a bankrupt tin January 21, 1869," and on February 10, 1869, Horace L. Hadley was appointed assignee.</p> <p>Perley received his discharge on March 6, 1875.</p> <p>On March 20, 1880, Hadley was removed as assignee, and the demandant was appointed assignee on the same day. The proceedings in bankruptcy are still pending.</p> <p>It did not appear that Hadley or the bankrupt ever disclosed the interest of the latter in the demanded premises to the court, or applied for or obtained leave to dispose of the same at private or public sale, or accounted to the court in any way for the proceeds of any sale of the demanded premises; or that Hadley ever collected or demanded said proceeds, or any part thereof, from Perley. Hadley testified that, in view of a contemplated sale, it was at one time intended to apply to the court for leave to sell the premises, but the attempt was abandoned.</p> <p>It appeared that, on March 1, 1870, for the consideration of $200 actually paid by the tenant to Perley, to his own use, Perley executed to the tenant a deed of the demanded premises, which was recorded on July 15, 1870; and that the tenant immediately entered upon the same, claiming title, and is still in possession thereof. It further appeared that, on April 14, 1871, Hadley, as assignee of Perley, conveyed the demanded premises to the tenant by a quitclaim deed, reciting a nominal consideration, and containing an habendum to the grantee to the grantee's use, and the usual covenants; and which was recorded on August 81, 1871; but, in fact, no consideration was paid by the tenant, nor has any money received from him ever been paid to the assignee of Perley, or accounted for as part of his estate. It was admitted by the demandant that the tenant acted without fraud, and in good faith.</p> <p>Upon these facts, the judge ruled that the title to the land in question was in the tenant, as against the demandant; and that, if the law was otherwise as regards the title, the limitation in the U. S. Rev. Sts. § 5057, applied, and was a bar to this action; and found for the tenant. The demandant alleged exceptions.</p>

<p>Under the Pub. Sts. c. 191, no lien can he maintained for labor performed in hauling lumber and sand to the premises upon which the lien is sought to he enforced, although the lumber and sand are intended to be used in the construction of a house, and portions of them are actually so used.</p>

<p>Libel for divorce, on the ground of adultery. Hearing before Holmes, J., who found that the libellee committed adultery on September 19, 1888, and on the question of the libellant’s connivance thereat reported the case for the consideration of the full court, as follows:</p> <p>“ On the day before the adultery was committed, the libellant, having begun to suspect his wife in connection with a man then lodging in his house, requested his son in Boston to telegraph for him to come to Boston the next day, if he did not come to town in the morning. The next day the telegram arrived; the libellant informed the libellee of its arrival, "that he must go to Boston, and that he should probably not return that night, and that, if he did, he should not return till late; but, in pursuance of an interview with counsel, he secretly made arrangements to be driven to his house about half-past eight o’clock that evening. By reason of the libellant’s necessary visits to Boston, and otherwise, frequent opportunities for adultery existed, but this particular one would not have existed except for the scheme as stated herein. The usual hour of going to bed was about nine. Between half-past eight and nine, the libellant drove with a witness to his house, as he had arranged. He arrived before the lights down stairs were put out, and stopped for a moment, and then drove round a square, taking about five or six minutes, and then came back. At about nine the lights down stairs were put out; shortly after, that in the libellee’s room was extinguished; and, from what was seen in the lodger’s room, the libellant was led to suppose that the libellee had entered it. He then at once entered the house, secretly, with the witness, went up stairs, and found the libellee and the above-mentioned lodger in bed.</p> <p>“ The foregoing conduct of the libellant constituted a scheme to detect the libellee if she was guilty, but there was no corrupt intent that adultery should be committed, or any assent to or connivance at it, unless the foregoing conduct amounted to connivance, as matter of law, which I ruled it did not, and ordered a decree of divorce to be entered.”</p> <p>The decree was to stand, or the libel to be dismissed, according to the decision of the court upon this point.</p>

<p>The Probate Court, in passing upon the allowance of the account of a trustee under a will, may determine whether the trustee has accounted to the parties entitled to the income of the trust fund for the whole of the income; and the question of the correctness of such determination is open in this court on appeal.</p> <p>If a trustee under a will, who holds a fund in trust to pay the income to a person during his life, with remainder over, makes an investment in bonds which are payable at a day certain, and are bought at a premium, he is not obliged to pay the entire net income to the tenant for life, but is entitled to deduct such an amount from the actual interest received on each bond as will, by successive deductions, make good to the capital the amount of premium paid upon the original purchase of the bond, without regard to the market value of the bond at the time of making such deductions. Morton, C. J., 0. Allen & Holmes, JJ., dissenting.</p>

<p>A. and B. bought a quantity of goods in their own names, giving a promissory note therefor, signed by each. They then sold the goods to a corporation, making no reservation of any separate interest in either vendor. A., on behalf of himself and B., settled with the corporation for the amount due, receiving in full payment of their debt in part money and in part shares of stock in the corporation, and gave the corporation a receipted bill for the price of the goods and interest. B. then brought an action, joining A. as plaintiff, against the corporation, to recover his proportion of the original debt. Held, that the settlement made by A. with the corporation released the latter from further liability to A. and B.; and that the action could not be maintained.</p>

<p>Tort for an injury caused to the plaintiff’s omnibus by a defect in a highway in the defendant city. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows :</p> <p>John P. Dary testified, for the plaintiff, that, on February 1, 1884, at about half-past seven o’clock in the evening, the night being quite dark, he was in the plaintiff’s employ, and driving the plaintiff’s omnibus, drawn by two horses and loaded with passengers, from Taunton to Dighton; that, as he was driving in the middle of the travelled way on Fourth Street in Taunton, he came to the railroad bridge over said street; that, as he drove under the bridge, the top of the omnibus struck or caught against the bridge, and the omnibus was injured; that the omnibus was of the usual size and height; that he did not go through Fourth Street on his regular route, but that there were passengers on that street to be taken up; and that he had never been on said street with an omnibus before. On cross-examination, the witness stated that he had been through Fourth Street before perhaps a dozen times; that he had driven ordinary carriages through it, and had never noticed that the bridge was too low; that an ordinary carriage went through all right; that he was driving at the rate of six miles an hour, and had driven the omnibus three or four months; that he paid no attention to the bridge, and was talking with passengers on the seat with him; and that it was not so dark but that he could see the-bridge as he approached it.</p> <p>It appeared that Fourth Street was a public highway, which the city was bound to keep in repair ; that there was no notice of danger posted up there; and that the omnibus failed to clear the bridge by less than six inches.</p> <p>J. L. Macomber, Jr., testified that he was superintendent of streets of the defendant city; that the grade of the street under the bridge could have been lowered a foot, and the water provided for by a drain to the river; that the road-bed under the bridge was the lowest part of the street within fifty rods of the bridge; that there were dwellings abutting on the street; and that it was generally considered a dangerous place.</p> <p>It further appeared that Fourth Street, prior to December 14, 1870, was a private way, having the same name; that the county commissioners, on December 28, 1865, upon the petition of the Dighton and Somerset Railroad Company, now the Old Colony Railroad Company, after due proceedings had, ordered and decreed that said Fourth Street “ shall be passed by said railroad by a bridge over said road, without any change in the grade of said road, said bridge shall be made eleven feet in the clear above the grade of said road, the abutments shall be of stone, and shall be placed, the northerly abutment outside the limits of said road, the southerly abutment five feet within the limits of said road.” It appeared that the bridge referred to in the evidence is the same authorized to be built by said decree.</p> <p>It also appeared that Fourth Street was laid out and accepted as a public highway by the city council of Taunton on December 14, 1870; that the same was laid out thirty-five feet wide, and in the laying out no change of grade from what it was as a private way was provided for; that the laying out excepted “ the land within the above lines covered by the abutments of the Old Colony Railroad Company’s bridge; ” and that, between 1865 and 1870, the Old Colony Railroad Company had succeeded to all the rights and liabilities of the Dighton and Somerset Railroad Company.</p> <p>William Merrill testified, for the defendant, that he lived near Fourth Street, and that the grade in the centre of the street under the bridge was higher now by about one foot than sixteen years ago. He thought gravel had been drawn on there. Two other witnesses testified to the same effect.</p> <p>It further appeared that, at the time of the accident, the measure from the surface of the street to the bridge above was eight feet eight and one half inches.</p> <p>The defendapt asked the judge to rule, that, upon the foregoing evidence, the plaintiff could not recover. The judge declined so to rule, and ruled that if the city, since the laying out of the street, on December 14,1870, had raised the grade thereof under the bridge, so that the way at that point, in view of the height of the bridge above, became dangerous and unsafe to travellers lawfully travelling thereon and using due care, this would be a defect or want of repair, within the meaning of the statute; and that, if the same might have been remedied, and the damage and injury might have been prevented by reasonable care and diligence on the part of the city, and the injury in question occurred through such defect or want of repair, the plaintiff using due care, and the city had reasonable notice of the defect or want of repair, or might have had notice thereof by the exercise of proper care and diligence on its part, the city was liable. The judge gave other appropriate instructions, not excepted to.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Petition to the Probate Court, by Phebe A. I. Buffinton, that the petitioner be appointed trustee under the will of Borden C. Tallman.

Petition to the Probate Court, under the Pub. Sts. e. 147, § 33, alleging that the petitioner was the wife of Simon Silver-man; that her husband failed, without just cause, to furnish suitable support for her, and had deserted her; and that the petitioner, for justifiable cause, was actually living apart from her husband; and praying that the court would prohibit the husband from imposing any restraint on her personal liberty for such time as the court should direct, or…

<p>If a testator, by his will, gives a pecuniary legacy to his widow, and she accepts such provision, a specific bequest of personal property, and, if that is insufficient, a specific devise of land, to other beneficiaries, must abate in. favor of the legacy to the widow, if the abatement of the general legacies is insufficient for the purpose.</p>

<p>A child adopted under the St. of 1871, c. 310, § 8, acquires, under the Gen. Sts. c. 69, § 1, cl. 3, the settlement of its father by adoption; and, if such child becomes pregnant before a new settlement is acquired, an overseer of the poor of the town in which the adoptive father has his settlement may maintain a complaint under the bastardy act, Pub. Sts. c. 85, § 2.</p>

<p>In November, 1874, a city laid out land for an extension of H. Street. Before said laying out, the city laid out a sewer through the middle portion of the proposed extension, and, as the sewer was filled, its top was levelled off by the city, and made passable for driving with carriages over a part of said extension. The city also removed an old wall which partly obstructed the entrance to the extension from C. Street, and placed curved or corner edgestones at the corner of C. Street and the extension, but in the line of and in C. Street; it located a place for a sidewalk on the south side of the extension, and curbed it with cut edgestones for about fourteen feet west of the west line of C. Street and about four feet from a sand-catcher built on the extension ; and it built a paved gutter from C. Street to the sand-catcher, which was a brick structure, under ground, with an opening into the gutter. Within two years after November, 1874, the city used the sand-catcher, and cleaned it out twice a year; it altered the sand-catcher, raised the ground of the extension at C. Street and near the sand-catcher, and repaved the surface of the extension where the water ran into the gutter, for a few feet, for the purpose of providing for the surface water and water coming from C. Street and H. Street east of C. Street. Since November, 1874, the extension has been open, passable for carriages for a certain distance, and the public has used it largely for carriages. Held, that the city, within two years from the laying out, took possession of a part of the land laid out for the extension of H. Street, for the purpose of constructing the way.</p>

Tort, in two counts. The first count was for an assault and false imprisonment, and the second count was for malicious prosecution. Trial in the Superior Court, before Crardner, J., who reported the case for the determination of this court, in substance as follows: The plaintiff offered to prove the following facts.

<p>Contract for money had and received, brought by Wilbur F. Gile, as guardian, in the name of his ward, to recover $5000. Writ dated May 4, 1885. The answer contained a general denial ; and alleged that, in the appointment of the guardian, the Probate Court had no jurisdiction, as the ward was living in Canada at the date of the appointment. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff called Mary I. Derome, who testified as follows: “ I was married to Thomas A. Derome in 1877, at Medford, and shortly after we went to reside at Boston, where we lived together down to November, 1881, when I left my husband, and went to reside at Lawrence, where I was born, and where, since November, 1881, I have resided with my mother. When I went back to Lawrence I intended to make my home there, and have ever since had such intent, and made it my residence. We had only one child, a daughter, named Alphonsine Isabell Derome, now seven years of age. When I left my husband, our daughter remained in his custody, at Boston. Mr. Gile was appointed guardian of my child, at my request, after the death of my husband, who died at Boston, October 14, 1884, in an asylum for the insane, where he had been confined some six or eight months prior to his death." Upon cross-examination, the witness testified that, both before and since the death of her husband, she had endeavored to obtain the custody of the child; that she was informed by the defendant that the child was sent to a sister of the father, at a convent in Montreal, in 1882, where she had since remained; that the defendant told her the father desired the child to be educated there; that she only knew what the defendant told her about it; that she knew her husband had a sister who was a member of the order, in charge of a convent at Montreal; that her child was not sent there with her knowledge or consent; that her husband was a Frenchman, who at one time kept a jeweller’s store in Boston ; and that she left him because she could not live with him on account of his treatment of her.</p> <p>The plaintiff introduced in evidence a certificate of membership issued to Thomas A. Derome by the New England Relief Association, a corporation duly established under the laws of this Commonwealth, by the terms of which the association agreed to pay a sum equal in amount to the number of the surviving members of the association, not exceeding $5000, within sixty days after due notice and proof of the death of Thomas A. Derome, “to John Vose, in trust for Alphonsine Isabell Derome, daughter.”</p> <p>The plaintiff also introduced in evidence a decree of the Probate Court, dated January 12, 1885, appointing Wilbur F. Gile, of Lawrence, guardian of the plaintiff, who was described therein as “ of Lawrence.”</p> <p>The defendant admitted that, on March 31,1885, he received from the New England Relief Association, under said certificate, the sum of $5000, for which he gave a receipt.</p> <p>The plaintiff called Wilbur F. Gile, who testified that, in January, 1885, after his appointment as guardian, he made a demand upon the defendant for all of the estate of his ward in the defendant’s possession; that, on April 14, 1885, he gave to the defendant a certified copy of his appointment as guardian, and then demanded the $5000 received by the defendant of said association; and that the defendant refused to comply with each of said demands, and, at the last-named interview, said he should not give up the money to the witness until compelled so to do by the courts.</p> <p>The plaintiff admitted that, at the date of said appointment, she had no estate in this Commonwealth, except her interest in said certificate in the possession of the defendant, who lived in Boston; that Thomas A. Derome was a native of Canada, and came to this Commonwealth about fifteen years ago, where he lived down to the time of his death; and that, when said certificate was issued, he was in the employ of the defendant.</p> <p>The defendant asked the judge to direct the jury to return a verdict for the defendant, upon the grounds that the Probate Court had no jurisdiction to appoint a guardian of the plaintiff, and because it appeared that the defendant held said sum of $5000 under an express trust.</p> <p>The judge ruled that the action could not be maintained; and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Land was conveyed by a deed to “ M., wife of J.” In a suit in equity by J. and others to remove a cloud from their title to the land, held, that it was competent for J. to testify that the grantee named in the deed was his wife; that she was dead ; and that the other plaintiffs were her only children.</p> <p>It is too late for the defendant in a bill in equity, after a hearing upon the merits, to object that the plaintiff has not filed a replication in writing; and the court is not required to dismiss the bill for that cause.</p> <p>At the hearing of a bill in equity to remove a cloud upon the title to land, if the evidence shows that the purchaser at a sale of the land for the nonpayment of taxes assessed thereon failed to pay the collector of taxes the sum bid by him, and to receive a deed, within ten days, as required by the Pub. Sts. c. 12, § 41, a deed delivered to him by the collector afterwards is properly held to be void, and a cloud upon the title.</p>

The first case was a bill of interpleader against Betsey Perry, Augusta F. Wallace, and James P. Hicks, executor of the will of Samuel B. Perry. Betsey Perry died pending the suit, and her administrator, Benjamin Gr. Perry, was made a defendant. The ease was heard in the Superior Court, before Pitman, J., who found the following facts: The plaintiff belongs to the class of corporations mentioned in sections 8-10 of o. 115 of the Pub. Sts;, and in e. 195 of the St. of 1882.

Bill in EQUITY to restrain the defendant from erecting and using a stationary steam-engine, boilers, and other machinery, and a brick engine-house and chimney, within five hundred feet of the plaintiff’s dwelling-house, in Newburyport. The case was heard by W. Allen, J., and reserved, at the plaintiff’s request, for the consideration of the full court. The facts appear in the opinion.

<p>No appeal lies from a decree of the Probate Court appointing commissioners to receive and examine the claims of creditors against the estate of a deceased person, which has been represented insolvent by the administrator, although the decree is made without notice to the creditors.</p>

<p>A. was appointed administrator of an estate, and gave a bond with B. and C. as sureties ; and, without a decree of the Probate Court, distributed a large portion of the estate among the heirs, of whom A. was one, and converted the remainder to his own use. He was removed from his office, and B. was appointed his successor, and gave bond with C. and another as sureties. No property of the intestate was delivered by A. to B., except certain promissory notes. A. was adjudged insolvent, and an assignee of his estate was appointed. B. resigned as administrator, and D. was appointed in his place, and brought an action against B. and the sureties on his bond, in which judgment was rendered for D. for the full amount of the property of the intestate which came into the hands of A., less said promissory notes and the amount of certain small accounts paid by A. B. and C. paid the full amount of this judgment to D. The estate was not finally settled, and all the unpaid accounts against the estate, payment of which could be enforced, amounted to a smaller sum than that paid by B. and C. upon the judgment against them. B. and C. then brought a bill in equity against D., A., his assignee, and the heirs of the intestate, asking that, upon the settlement of the estate, B. and C. might be subrogated to the rights of the distributees, after the payment of all debts, to the extent that the latter had received advances by the acts of A. Held, on demurrer, that the bill could be maintained.</p>