Volume 141 — Massachusetts Reports

<p>Replevin of twenty bags of California wool. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiffs, under the firm name of Rodliff and Eaton, were wool dealers in Boston, and, on or about November 15, 1882, delivered the wool in controversy to one Henry Clementson, a wool dealer and broker in Boston, as hereinafter stated.</p> <p>The defendant was a public warehouseman in Boston, who received the wool in question on storage from Clementson, on or about said November 15,1882, not knowing where he obtained it, and issued a warehouse receipt for the same, described hereafter.</p> <p>On the day after the delivery of said wool, Clementson applied to the Massachusetts Loan and Trust Company of Boston, a corporation whose business is that of advancing money upon staple merchandise, for a loan of $2000 on said wool, then in the public warehouse of the defendant. The company sent a man to the warehouse to examine the wool, and, on his report, made a loan of $2000 to Clementson, taking the warehouse receipt of the defendant, reciting that the wool had been received from Clementson and placed on storage for account of the Massachusetts Loan and Trust Company, the company having no knowledge where Clementson obtained the wool, his statement being that he had purchased the wool to sell upon the market; and the company, being the real party in interest, defended this action.</p> <p>The plaintiff Rodliff testified that, in September, 1882, his firm sold and delivered to Clementson certain California wool, of the value of about $2000, entered the same on their books as sold to him, and made out a bill of sale directly to him, the wool being sold on sixty days’ time, which wool was duly paid for by Clementson; that afterwards, prior to November 14 of that year, the plaintiffs made two other sales to Clementson out of the same lot of California wool, which had been consigned to them for sale; that Clementson, acting as broker in each of these last two sales, received his brokerage, and gave the name of the persons for whom the wool was purchased, namely, Pomeroy and Sons, of Pittsfield; that the wool in both these cases was charged to Pomeroy and Sons on the books of the plaintiffs, together with the entry of brokerage to Clementson; that a bill was also made out directly to Pomeroy and Sons; and that in both these cases the wool was sold on time, and was duly paid for.</p> <p>On or about November 14, 1882, one of the plaintiffs had an interview with Clementson, about which he testified as follows : “ He came in and brought an offer of twenty-two and one fourth cents per pound for some manufacturer. This was for twenty bales of the same lot of California wool. Finally he said he did not want us to know who the manufacturer was ; he wanted to conceal that. I told him I did not know how he could get over it, for I would not sell him that amount or anywhere near it. We made an arrangement that we were to let him have "the wool, and were not to lose our claim upon it, but he was to hand us over whatever he got for it as soon as he got it. I said we would weigh up that wool, and he was to hand us over the check as soon as he got it.” The witness was present when the wool was loaded on the wagon Clementson sent to receive it. The plaintiffs did nothing about collecting pay for the wool until they had learned that Clementson had left the country, and made no inquiry of him relating to the same, the sixty-one days’ credit not having then expired.</p> <p>The plaintiffs asked Clementson who the parties were, and he would not tell them, but said they were as good as Pomeroy and Sons, who were in good standing and credit with the plaintiffs.</p> <p>The wool was sold on sixty-one days’ credit, and was entered on the books of the plaintiff as a direct sale to Clementson, and a bill of parcels was made directly to Clementson, as in the sale to him in September, and no mention was made, either on the books or on the bill, of any other person, or of any brokerage.</p> <p>A statement of the weights was delivered to Clementson, and the wool was thereupon delivered on wagons sent by Clement-son, which took the wool to the warehouse of the defendant, the plaintiffs not knowing where the wool was taken.'</p> <p>. Rodliff further testified that, when the wool left the store, they did not expect to see it again, and only expected to be paid for it; that they knew Clementson was speculating in wool. After the delivery of the wool, Clementson had further transactions with the plaintiffs, and ás late as January 2, 1883; but, on January 5, 1883, learning that Clementson had left Boston, they replevied the wool before the expiration of sixty-one days, having received no payment for it. Early in 1883, Clementson left the country for Demerara, where he still resides. No part of the advance made by the Massachusetts Loan and Trust Company has ever been repaid.</p> <p>It was an undisputed fact that Clementson had not any such offer, and did not act for any such person as the plaintiffs testified that he represented at the time of obtaining the wool.</p> <p>The judge instructed the jury that there were three possible views of the transaction: (1.) that they might find it was an ordinary sale to Clementson ; or (2.) that it was not a sale to Clementson, but was a delivery to Clementson as a broker, with a view to his selling it to some customer, whom he expected afterward to negotiate with, and to consummate a sale with him; and, if they found this, then there was a special provision of the statute which protects persons dealing in good faith with a broker having property in that way, so far as they make advances or loans upon property in pledge, in good faith, to persons who have custody of property as brokers, with authority to sell or dispose of it; or (3.) that it was not a sale to Clementson, or a delivery to him as broker with authority to sell, but that it was a delivery to Clementson, upon his representation that he came from a purchaser, representing him, with an offer for it, — a purchaser whose name he did not disclose, — and that these goods were delivered to him as the agent of that purchaser, as a sale to that purchaser; and if this was the fact, that the plaintiffs were entitled to the property, notwithstanding it was subsequently pledged to the Massachusetts Loan and Trust Company.</p> <p>The judge further instructed the jury, upon the third view, “ that, if this was a transfer upon a false representation made by Clementson, — a representation that he came with an offer from a third person whose name he did not wish to disclose, — and the goods were delivered to Clementson as a sale to him as the agent of this third person whose offer he was bearing, with the view that the property should pass at the time to that third person and thus constitute a sale to such person, from whom payment was to be made subsequently, and the payment to be brought back by Clementson as the agent of that third person, Clementson had no right afterward to deal with that property at all; that he got it into his possession bjr fraud, and he got it into his possession without any authority to make any subsequent sale, or to do anything with it; and that it was wrongly in his possession from the start, and any person who saw fit to advance money upon it or to buy it, however honestly, and in perfect good faith, would be the loser, and the plaintiffs could pursue the property and get it wherever they could find it, whenever the fraud practised upon them should come to their knowledge.”</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

Tort. The declaration alleged that, on February 13, 1883, the plaintiff was in the lawful occupation of a store on Fleet Street, in Boston; that, while in such occupation, the defendant, intending to injure him bodily and ruin his business, unlawfully employed several persons to enter his store for the purpose of maltreating him and throwing him and the contents of his store into the street; that several persons so unlawfully employed entered the plaintiff’s store, and, in…

Tort for personal injuries occasioned to the plaintiff, by the alleged negligence of the defendant.

Contract upon an account annexed, for rent of a room from July 2 to September 3, 1875. Writ dated May 15, 1883. Answer: 1. The statute of limitations. 2. A discharge in bankruptcy of debts existing on July 18, 1876. After the former decision, reported 139 Mass. 12, the case was tried in the Superior Court, without a jury, before Knowlton, J., who ruled that the action could not be maintained, and ordered judgment for the defendant; and the plaintiff alleged exceptions.

Contract in two counts. The first count was upon a promissory note for $280, dated January 13, 1882, payable to the plaintiff on demand, and signed by the defendant. The second count was for $64, money lent by the plaintiff to the defendant. Writ dated July 5, 1884. The defendant, in his answer, relied upon his discharge in insolvency, proceedings having been begun on May 13, 1882, and the discharge having been granted on December 29, 1882.

Tort for personal injuries occasioned to the plaintiff by an alleged defect in a highway in the defendant town. Trial in the Superior Court, before Mason, J., who directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>An action pending in the Superior Court was dismissed under the fifty-fourth rule of that court. On the last day of the term, the general order was passed that judgment he entered in all cases ripe for judgment. The clerk made an entry in the case on the day the action was dismissed, stating that fact, but made no entry in it under the general order. Meld, that the Superior Court had no jurisdiction, upon a petition filed more than a year after the last day of the said term, to order the case to he brought forward upon the docket.</p>

<p>Petition for a writ of mandamus, to compel the mayor of the city of Waltham to sign a license granted to the petitioner by the board of aldermen of Waltham, to be a common victualler. The case was heard upon petition and answer, and reserved, by W. Allen, J., for the consideration of the full court. The facts appear in the opinion.</p>

Contract, upon an account annexed, for work and materials. The defendant filed a declaration in set-off for $50.

Complaint to the Second District Court of Eastern Middle-sex, under the Pub.

<p>A railroad corporation is not bound to exercise the same care towards a passenger who is passing through the station grounds on his way from a train to the highway, that it is under obligation to exercise while the passenger is in the train ; and in an action by a passenger, who was injured by stepping on some shingles lying on the station grounds, an instruction that the railroad corporation was bound to take every possible precaution against injury to the plaintiff, and was liable if human foresight could have prevented it, is erroneous.</p>

<p>Contract to recover money deposited by the plaintiff with the defendant. Trial in the Superior Court, without a jury, before Staples, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff was a depositor in the defendant bank, and had one of its usual books of deposit. This book showed a deposit on May 24, 1875, one on May 24, 1880, two in 1881, and one on April 24, 1882; also various payments, the first being on May 4,1880, and the last in 1883. It was agreed that all these payments were made on forged orders, purporting to be signed by the plaintiff, by her mark, and witnessed, directing the bank to pay the respective amounts to a certain person, who was the nephew of the plaintiff. This nephew forged the orders, and the respective amounts paid by the defendant correspond to the respective orders. Payments were made to said nephew on his presenting the respective orders and the plaintiff’s deposit-book, wherein was entered the amount paid in each case, in the usual way, and the book was then returned to said nephew. In each case the book was stolen or fraudulently obtained from the plaintiff by said nephew, he knowing the place where the same was kept, and taken each time to get money on from the bank. The several deposits, as they appear in the book, were made by the plaintiff herself; and, after entry thereof, she received the book back again. A deposit was made on March 7, 1881. At this time the plaintiff’s deposit-book showed three payments on forged orders. The plaintiff could neither read nor write, but it did not appear that the defendant had any knowledge that the plaintiff could not read, except in so far as such knowledge is imputable from the fact that the plaintiff, instead of signing her name, made her mark¡ The plaintiff had no knowledge that any sum had been drawn on the forged orders until the whole had been drawn, unless such knowledge is imputable to her on the facts herein appearing. The bank had no knowledge or information that the respective orders were forged, or that the book had been stolen or fraudulently taken from the plaintiff. The bank, when it paid the several amounts on the forged orders, paid the same in good faith, and used due diligence in the premises. The deposit-book presented to the plaintiff, when she made her first deposit, contained the by-laws, as they existed on May 24, 1875, the date of the first deposit, and the plaintiff duly subscribed at that time the rules and regulations of the bank (by making her mark, which was witnessed) in the following form: “ The subscribers, whose signatures appear below, or the agents of such subscribers, agree to be governed and to abide by the regulations of this institution, as expressed in the by-laws of the same.”</p> <p>Among the by-laws contained in the plaintiff’s bank-book was one giving the defendant’s trustees power “to alter or amend these by-laws; ” and the following: “ As the officers of this institution may be unable to identify every depositor transacting business at the bank, the institution will not be responsible for loss sustained where the depositor has not given notice of his book being stolen or lost, if such book be paid in whole or in part on presentment.”</p> <p>On September 13, 1875, this by-law was amended by adding thereto the following words: “ In all cases a payment upon presentation of a deposit-book shall be a discharge to the corporation for the amount so paid.”</p> <p>This by-law, as amended, has been in force since that time. The amendment was duly made in accordance with the provisions of the by-laws for their amendment, but the plaintiff had no actual knowledge of such change in the by-laws, unless such knowledge is imputable to her from the facts herein stated, or she is presumed to have such knowledge. The bank did not give the plaintiff a new book with the by-law as amended, nor did the bank request the surrender of the old book and the acceptance of a new book containing the by-law as amended; and it is not the custom of the bank to give notice to depositors of change in the by-laws, or make any change in deposit-books in such cases; and her signature was not requested to the amended by-law, and it is not the custom of the bank to make request for signatures in such cases. The payments on the forged orders were all made after the by-law was amended.</p> <p>On the foregoing facts, the judge ruled that the several amounts paid on forged orders could not be recovered in the action, and found and ordered judgment for the plaintiff for $4.32, the amount admitted by the defendant to be due the plaintiff, and interest on the same from the date of the writ. The plaintiff alleged exceptions.</p>

Contract, with counts in tort. After the former decision reported 138 Mass. 37, the case was tried in the Superior Court, without a jury, before Knowlton, J., who found the following facts: In March, 1882, the defendants, for a compensation to be paid by a commission, undertook to aid the plaintiff in selling one hundred and sixty acres of land in Rock Island County, Illinois, by obtaining, if possible, offers for it and communicating them to him for his acceptance or…

<p>Tort for the conversion of a pearl ring. Writ dated December 29,1882. Answer, a general denial. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The defendants are common carriers, doing business under the name of the Adams Express Company. The plaintiff introduced evidence tending to show that she delivered to the defendants, at their office in Boston, on September 25, 1882, a box secured by a wrapper, string, and seals, which the plaintiff said contained a solitaire pearl ring and a diamond ring of hersthat the defendants carried the box to Washington, D. C., and by one of their messengers delivered it to Alfred Berney, to whom the same was directed; that when the box was opened by him the diamond ring alone was found in it; that afterwards the plaintiff told the defendants at their Boston office that the pearl ring was not received by Alfred Berney; and that neither he nor the plaintiff had had or seen the pearl ring since.</p> <p>The defendants introduced evidence tending to show that the box was carried by them from Boston to Washington in the same condition and with the same contents as when received by them at their Boston office; and that it was so delivered by them to Alfred Berney; that at once, upon the plaintiff informing the defendants of her claim of non-delivery of the pearl ring, the defendants made full inquiry and investigations to ascertain whether the pearl ring had been carried and delivered, but could learn nothing additional, except that their messenger in Washington testified that he received the box for delivery in perfect condition, securely sealed, and so delivered it to Alfred Berney.</p> <p>The plaintiff, who was a witness in her own behalf, testified, among other things, that the pearl ring was given to her in 1864, by her husband, Alfred Berney, who purchased it at that time for that purpose; that she did not know what it cost; that she had worn it since it was given to her; that it was “ a solitaire pearl with a high setting; ” that she did not know the weight of the pearl; that she was not familiar with pearls and had had no experience with them; but that she was familiar with the pearl sued for. It was admitted by the plaintiff, and held by the judge, that she was not an expert in regard to pearls. Thereupon the plaintiff’s counsel asked her the following questions: “ Do you know what the size of that stone was ? ” to which the witness answered, “ I think I do.” “ Whether, by examining other pearls, you can select a stone which will match the one lost, in size, color, and general appearance?” to which the witness answered, “ I think I could.” “ Have you done so ? ” to which the witness answered, “I have.” Two pearls set as solitaire eardrops, and in a case, were thereupon produced and shown to the witness, and she was asked, “ Whether the stones exhibited are the ones selected by you, and do they match the pearl sued for in this action? ” to which she answered, “ I should say they were, as far as I can judge, about the size and color of the one I lost.” “Do they differ in any respect from the one you lost?” to which she answered, “I do not think they do.” To each of these questions and answers, and the producing and showing the two pearls, respectively, the defendants objected, and asked the judge to rule that neither of them was competent as tending to show the value of the pearl ring claimed to be lost; but the judge ruled that each, respectively, was competent for that purpose, and admitted it.</p> <p>The plaintiff thereupon called one Charles M. Foss as a witness. It appeared that he was an expert as to the quality and value of pearls, and had been for thirty-five years. The plaintiff produced and offered to show to the witness the two pearls set as solitaire eardrops, which had been shown to the plaintiff when a witness; to this the defendants objected, but the judge allowed it. The witness was then permitted to testify, against the objection of the defendants, that the fair value of each of the pearls produced was $175, and that the value of pearls was about twenty-five per cent higher in 1864 than now, on account of the premium on gold. On cross-examination, he testified that the value of pearls varied very much; that it depended entirely upon the size, shape, color, and lustre of the pearl; that great study, experience, and skill were required to enable a person to judge of a pearl, and that those produced were very fine specimens; and that a person owning and wearing a pearl, though not an expert, would be able to judge of its general appearance, and would be likely to hit the thing pretty close in trying to match it. There was no other evidence in relation to the value of the pearl ring which was material to these exceptions.</p> <p>The jury returned a verdict for the plaintiff in the sum of 184.93 ; and the defendants alleged exceptions.</p>

Bill in equity, filed April 17, 1884, to have a trust created by the plaintiff, by a certain deed to the defendants William E. Carleton and Charles E. Abbott, as trustees, declared null and void, and that the trustees be ordered to account for and pay over to the plaintiff the whole of the trust fund.

Tort, in two counts. The first count was for breaking and entering the plaintiff’s close in New Bedford, described as bounded on the east by the channel of the Acushnet River; on the south by the southerly line of Howland Street and the extension of said southerly line eastwardly to said channel; and on the west and south by lands of certain persons named.

Complaint, on the Pub. Sts. c. 100, § 12, to the Municipal Court of Boston, alleging that the defendant, on July 12, 1885, was duly licensed to sell intoxicating liquors in certain premises in Boston; that the premises were used by him for such sale; and that he then and there placed and maintained upon said premises a certain screen, blind, shutter, and curtain, in such a way as to interfere with a view of the business conducted upon said premises, and with a view of the…

Contract, against the administrator of the estate of Lois P. B. White, upon a promissory note for $500, dated April 11, 1881, signed by the defendant’s intestate, and payable to the order of the plaintiff. Answer : 1. A general denial. 2. Want of consideration. 3. That the action was prematurely brought. 4. That the note was given as collateral security for an obligation which had been discharged, or the liability under which had never arisen.

<p>Writ of entry, dated August 6, 1884, to recover a tract of woodland in Holden. At the trial in the Superior Court, before Pitman, J., the jury returned a verdict for the tenant; and the demandant alleged exceptions, which appear in the opinion.</p>

<p>In January, 1883, the owner of a lot of woodland executed a lease of it, for two years from April 1, 1888, the lessee to have the privilege of cutting and removing the wood and timber during that time, and agreeing to pay a certain sum on May 1, 1883, with interest from the day of the execution of the lease. The lease also contained an agreement “ that the wood and timber on the described premises shall be held by the lessor as guaranty for the payment” of the sum named and interest. At the same time, the lessee gave the plaintiff a promissory note for the amount named, with interest, payable on May 1, 1883. When the note became due it was not paid, and the parties agreed that it might lie, on interest. The lessor afterwards permitted the lessee to cut and remove some of the wood and timber. Held, that the transaction was not a conditional sale, but was in the nature of a pledge. Held, also, that, after the failure of the lessee, the lessor could acquire no additional title, as against an assignee in insolvency subsequently appointed, by taking possession of the wood and timber, with the consent of the lessee.</p>

<p>Petition for a writ of mandamus, by certain citizens and tax-payers of Springfield, to compel the county commissioners of Hampden to award a contract for the construction of the jail and house of correction in said county to the first-named petitioner, who, as the petition alleged, was the lowest bidder for said work, and was able and ready to furnish good and sufficient sureties for the faithful performance of the contract. The petition further alleged that the commissioners had awarded the contract to other persons, whose bid was larger than that of the first-named petitioner. Annexed to the petition was a copy of the advertisement for proposals for bids, which stated that the commissioners reserved the right to reject any and all bids.</p> <p>The respondents demurred to the petition. The case was heard, upon the petition and demurrer, by Field, J., who sustained the demurrer, and at the request of the petitioners reported the case, for the consideration of the full court, such decree to be entered as justice might require.</p>

<p>Two APPEALS from a decree of the Probate Court, admitting to probate the will, dated August 21, 1874, and the codicil, dated August 30, 1878, of Mary E. Foster, deceased. The cases were heard by Morton, C. J., and reported for the consideration of the full court, upon agreed facts, in substance as follows:</p> <p>At the time of the execution of said will and codicil, the testatrix was the widow of Thomas E. Nichols, and was of sound and disposing mind; and the will and codicil were properly executed and attested in the presence of three witnesses.</p> <p>The testatrix, subsequently to the execution of both the will and codicil, namely, on July 4, 1882, was married to Christopher Foster, and continued to live with him as his wife until her death, on June 25, 1883.</p> <p>There was no issue born alive of either marriage; and said Foster had no knowledge of this will, except that the testatrix informed him after their marriage that she had made a will, but talked of changing it.</p> <p>It was agreed that the only issue raised upon the above facts was whether or not said will and codicil were revoked by the marriage of the testatrix to Christopher Foster.</p>

<p>Bill in equity, filed March 13,1883, alleging that the plaintiff, in 1880, was the owner of a gold watch, a diamond ring, a cameo ring, a gold seal with an onyx stone, and a pair of gold sleeve-buttons, all of which she had received from her husband, since deceased, and which she had lent to the defendant, relying upon Ms promise to return the same; that the defendant, though often requested to return them, had refused to do so; and had secreted them so that the plaintiff couM not replevy them.</p> <p>The prayer of the bill was, that the defendant be ordered to deliver up said articles to the plaintiff, or that he be ordered to expose and exhibit the same so that they could be taken on a writ of replevin; and that the defendant be restrained, pending the proceedings, from selling, secreting, or disposing of any of such articles.</p> <p>On March 15, 1886, an injunction issued restraining the defendant from disposing of said articles.</p> <p>The answer alleged that the defendant had had in his possession and control for a number of years a watch, seal, and diamond ring, which the plaintiff had presented to him, but that some time prior to the service of the injunction he had disposed of said articles, and that they were beyond his control at and for a long time before said service; and that the defendant had returned to the plaintiff the seal ring and gold sleeve-buttons.</p> <p>On January 5, 1885, an interlocutory decree was passed, that all of the property specified in the plaintiff’s bill was the property of the plaintiff; that it be ordered that the same be returned and delivered to the plaintiff, if the same was in the possession of the defendant at the time of the service of the injunction; and that the case be referred to a master to find whether, at the time of the service of the injunction upon the defendant, he had sold the property specified in the bill; and, if he had so sold it, to find the value of the same.</p> <p>An order of reference issued accordingly, and the master found that, at the time of the service of the injunction, the defendant had not sold the property specified in the plaintiff’s bill.</p> <p>A final decree was thereupon entered, that the defendant forthwith surrender and deliver to the plaintiff, her agent or attorney, each and every of the articles of personal property mentioned in the plaintiff’s bill. From this decree the defendant appealed to the full court.</p>

Complaint to the Municipal Court of the city of Boston, alleging that the defendant, on March 6,1885, and on divers other days and times between that day and the day of making the complaint, at Boston, “ was and is an idle and disorderly person, and on said days and times, at said Boston, has neglected all lawful business and habitually misspent her time by frequenting houses of ill fame, gaming-houses, and tippling-shops, against the peace,” In the Municipal Court, and in…

<p>A regulation of the board of aldermen of a city provided that no person having the care or ordering of a vehicle should suffer the same to stop in a street more than twenty minutes. A complaint alleged that the defendant, on a day named, “ was the person then and there having the care and ordering of a certain vehicle, to wit, a cab, and did then and there, without having any license, authority, or appointment, according to law, so to do, suffer said vehicle to stop in a certain public street situate within said city, and called C. Street, for a longer time than twenty minutes.” Held, that the complaint was sufficient.</p>

Complaint to the Municipal Court of the city of Boston, alleging that the defendant, on April 25, 1885, at Boston, “ was the person then and there having the care and ordering of a certain vehicle, to wit, a wagon, and did then and there, without having any license, authority, or appointment, according to law, so to do, suffer said vehicle to stop in a certain public street situate within said city and district, and called Haymarket Square, for a longer time than twenty…

Complaint to the Municipal Court of the city of Boston, alleging that the defendant, on July 31, 1885, at Boston, was duly licensed to sell spirituous and intoxicating liquors in certain premises on Head Place in said Boston ; that said premises were then and there used by the defendant for the sale of such liquors; and that the defendant did then and there place and maintain upon said premises a certain screen, blind, shutter, curtain, partition, &c., in such a way as to…

<p>Bill in equity, filed May 31, 1881, against the Leominster Savings Bank and the First National Bank of Leominster, by a surety on a promissory note delivered to the first-named defendant, for an account of the proceeds of personal property mortgaged to said defendant by the makers of the note as security for the same, and alleged to have been wrongfully disposed of to the last-named defendant; and for the cancellation of the note.</p> <p>The case was heard by W. Allen, J., on the pleadings, the report of a master, and exceptions thereto, and was reserved for the consideration of the full court. The facts appear in the opinion.</p>

Bill in EQUITY, filed June 7,1884, by the assignees in insolvency of Lewis Killam, against Leonard V. Spaulding, Lewis Killam, the Real Estate Improvement Company, a corporation established according to law, Nathaniel T. Wentworth, and thirty-four other persons, alleging the following facts: On December 15, 1883, the defendant Killam was, under a contract with the Real Estate Improvement Company, erecting buildings for it on its land in Haverhill.

<p>Writ of ertry, dated November 11, 1884, and returnable to the Superior Court, to recover a parcel of land in Haverhill. The declaration described the land demanded by metes and bounds; and alleged that the demandants “ were seised of the messuage as aforesaid, with the appurtenances, in their demesne as of fee, within twenty years last past,” and that the tenant had disseised them. The tenant filed a demurrer to the declaration, on the ground that the demandants had not set forth the estate that they claimed in the premises, whether it was a fee simple, fee tail, or for life.* Pitman, J., overruled the demurrer; and the tenant alleged exceptions.</p> <p>The tenant then filed a plea of nul disseisin. The case was tried, without a jury, before Gardner, J., who ordered judgment for the demandants; and reported the case for the determination of this court. If the order was correct, the judgment was to stand; otherwise, the court to make such order, direction, or judgment as was fit and proper for the further disposition of the case. The facts appear in the opinion.</p>

<p>A deed of land described as bounded "on the beach” does not convey the shore below high-water mark, unless this boundary is controlled by other parts of the description.</p> <p>A deed of land conveys no greater title than the grantor has.</p> <p>The taking of sea-weed from an open and unenclosed beach, and the selling of - stones therefrom from time to time, are insufficient to operate as a disseisin of the true owner.</p> <p>In an action of tort, brought in 1876, for breaking and entering the plaintiff’s close and taking sea-weed therefrom, it appeared that the locus was a beach upon the sea-shore, which with the upland had been conveyed to the plaintiff, in 1824 and 1826, by his father; that the deed to the father, given in 1795, by its description did not include the beach; that the defendant showed no record title to the beach; that the plaintiff and his grantor had sold stones and gravel from the beach, and had taken sea-weed therefrom; and that the defendant and his grantor had, for sixty years, taken sea-weed from the beach under a claim of right. Held, that the j udge, who tried the case without a jury, was not bound to find that there was a lost deed of the beach to the plaintiff’s grantor; and was justified in finding for the defendant.</p>

<p>A police officer, arresting a person without a warrant, under the Pub. Sts. c. 207, § 25, for being intoxicated in a public street, is not liable criminally therefor, if ' he acted in good faith, and had reasonable cause to believe such person to be intoxicated, although he was not in fact intoxicated.</p> <p>If a police officer, arresting a person without a warrant, under the Pub. Sts. c. 207, § 25, for being intoxicated in a public street, is indicted for an assault, a judgment of conviction of the arrested person of the crime of drunkenness, rendered by a police court on the day after the arrest, is not conclusive evidence in favor of the officer, at the trial of the indictment, that such person was intoxicated when arrested.</p>

<p>Complaint, under the- Pub. Sts. c. 99, § 10, as amended by the St. of 1883, c. 120, charging the defendants with being present at a certain unlawful game.</p> <p>At the trial in the Superior Court, before Aldrich, J., the evidence showed that the defendants were present at, and also tended to show that they were found playing, said game.</p> <p>The defendants requested the judge to rule, that they could not be convicted, under this complaint, of the offence of being present, upon evidence which showed that they were participating in the game as players; and that the offences of playing an unlawful game and of being present at an unlawful game are distinct and separate offences under the statute. The judge declined so to rule, and instructed the jury that the defendants could be convicted upon evidence which showed that they were present at, although it also showed them to have been playing, the game; and that, although they were participating in the game, they were none the less present, in the sense of the statute.</p> <p>The jury returned a verdict of guilty; and the defendants alleged exceptions.</p>

<p>Complaint, under the Pub. Sts. c. 101, §§ 6, 7, for keeping and maintaining a common nuisance, to wit, a certain tenement in Norwood, used for the illegal sale and illegal keeping of intoxicating liquors, on July 1,1884, and on divers other days and times between that day and April 29, 1885. At the trial in the Superior Court, before Mason, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>At the trial of a complaint for keeping intoxicating liquors, with intent unlawfully to sell the same, a chemist and state assayer testified that he made an analysis of the liquor in question, which was beer, and found it to contain over three per cent of alcohol. Held, that it was competent for the jury to infer that the witness understood the purpose for which he was to analyze the beer, and that he meant to be understood as testifying that the beer contained more than three per cent of alcohol, as shown by an analysis made according to the provisions of the Pub. Sts. c. 100, § 27.</p>

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

Replevin of certain personal property. Trial in the Superior Court, before BarJcer, J., who reported the case for the determination of this court, in substance as follows: Both parties claimed title to the property in question under one William J. Hall, formerly proprietor of a dining-room on Chauncy Street, in Boston, in which the articles were used.

<p>In an action for the price of certain machinery, it appeared that the machinery was constructed by the plaintiff and sent to the defendant, who was erecting a building, by the order of A., who had a contract with the defendant for heating and ventilating the building; and the question at issue was whether A. was authorized by the defendant to order the machinery from the plaintiff on the defendant’s account. A. was a witness for the plaintiff; and there was conflicting evidence upon the questions whether the machinery was included in the contract between A. and the defendant, and whether the machinery was embraced in a suit and settlement between A. and the defendant. Neither party produced the record of that suit in the present action. The defendant asked the judge to rule that it was incumbent on the plaintiff to produce evidence of what was the subject of that suit, and the absence of such evidence was to be weighed as aSecting and discrediting the testimony of A. The judge declined so to rule; and instructed the jury that, where a party knows that evidence is likely to be introduced at a trial inconsistent with his own claim, and, if his claim is well founded, it is in his power to produce other evidence which will control that brought against him, his failure to produce such other evidence should be considered as a circumstance against him; and left it to them to say whether this principle applied to the conduct of either party in this action. Held, that the defendant had no ground of exception.</p> <p>In an action for the price of certain machinery to be used in a building erected by the defendant, ordered from the plaintiff by a third person, whose authority to , order the machinery on the defendant’s account is the question at issue, evidence that the cases in which the machinery was packed were distinctly marked with the defendant’s name and address, in connection with evidence of the sending by the plaintiff of bills of parcels to the defendant, followed by letters demanding payment, to which no reply was made by him, and by a sight draft, which was returned unpaid, is properly submitted to the jury.</p>

<p>Contract upon a promissory note for $200, dated June 10r 1884, payable three months after date to the order of the plaintiff, signed by Cyrus S. Haldemail, and indorsed by the defendant. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The defendant put his name upon the back of the note before it was delivered to the plaintiff. The evidence tended to show that the defendant received no consideration or advantage for his indorsement; and it was not disputed that it was an accommodation indorsement, so far as Haldeman was concerned. The only question at the trial was whether the defendant’s indorsement was for the accommodation of Haldeman alone, or for the accommodation of both Haldeman and the plaintiff. Upon this question, the defendant desired to go to the jury, contending that Haldeman was the agent of the plaintiff to procure the defendant’s indorsement.</p> <p>The plaintiff testified, that, at the time the note was given by Haldeman and indorsed by the defendant, he, the plaintiff, was financially embarrassed, and in a failing condition; that shortly afterwards he did fail, and was, at the time of the trial, effecting a compromise with his creditors ; and that, at the time the note was given and indorsed, he was exceedingly anxious to obtain money or negotiable paper, which he could use by way of discount and with his creditors, in order to “tide over” his embarrassment and to save his business from failure. It appeared that Haldeman was, at the time, indebted to the plaintiff for board in a sum equal to or greater than the amount of the note in question; and that the plaintiff was endeavoring to collect the debt which Haldeman said he had not the money to pay.</p> <p>The plaintiff further testified as follows: “ Haldeman wanted me to take his note for the payment of his bill. I said I could not use it, but if he could get a good indorser, I could use it as money to pay my bills with. I said to him that I could use Goff’s note, knowing that he had had. some business transactions with Goff. I had had one of his notes, and knew that Haldeman was in some way connected with him. So he got Goff’s indorsement, and I used the note, or he came back with the note indorsed by Goff.”</p> <p>Haldeman was called as a witness by the defendant, and testified to his conversation with the plaintiff substantially to the effect, that the plaintiff pressed him for payment of his bill, and that Haldeman’s note with the defendant’s indorsement was suggested; that the plaintiff told him that he, the plaintiff, could not use his, Haldeman’s, note, but could use it if a good indorsement was procured; and that he saw the defendant in reference to his indorsement, and procured it for his, Haldeman’s, accommodation, and not for the plaintiff's accommodation. The plaintiff gave Haldeman credit for the amount of . the note in suit. It also appeared that Haldeman was, at the time of the trial, still boarding at the plaintiff’s hotel, and was still indebted to the plaintiff. It did not appear that the plaintiff was informed of the nature of the conversation between Haldeman and the defendant.</p> <p>The defendant was then called to testify to the conversation which took place between him and Haldeman at the time his indorsement was procured, and in pursuance of which conversation he claimed to have indorsed the note for the accommodation of both Haldeman and the plaintiff; but the judge excluded the evidence, upon the ground that it did not appear that Haldeman was in any sense the agent of the plaintiff to procure the defendant’s indorsement upon the note. The defendant’s counsel then asked the judge if he ruled that there was no evidence of agency for the jury, to which the judge answered affirmatively.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>If C. denies his liability for the destruction of A.’s property by a disaster which also destroyed B.'s property, and, after B. has maintained an action against C. for his loss, A. brings an action against C. in which C. admits his liability, the tribunal assessing the damages has power, in its discretion, to add interest to the sum which it finds to represent A.’s loss on the day it occurred.</p>

<p>A complaint, under the Pub. Sts. c. 57, § 5, alleging, in one count, that the defendant, at a time and place named, sold a certain quantity, to wit, one pint, of adulter, ated milk, to wit, milk containing less than thirteen per cent of milk solids, and, in another count, alleging that the defendant, at the same time and place, had in his possession a certain quantity, to wit, one pint, of adulterated milk, to wit, milk containing less than thirteen per cent of milk solids, with intent then and there unlawfully to sell the same, is sufficient, without further alleging that the milk was analyzed, and found, on analysis, to contain less than thirteen per cent of milk solids.</p> <p>The Pub. Sts. c. 57, § 10, do not prohibit any person not an inspector of milk from making a complaint for a violation of the provisions of the chapter.</p> <p>A complaint, under the Pub. Sts. c. 57, § 5, alleging that the defendant sold one pint of adulterated milk, to wit, milk containing less than thirteen per cent" of milk solids, is not supported by proof that he sold the milk as skimmed milk out of a tank marked as required by § 7, although the milk was watered.</p> <p>A complaint, under the Pub. Sts. c. 57, § 5, alleging a sale of adulterated milk, to wit, milk containing less than thirteen per cent of milk solids, is supported by proof of a sale of milk, which, by the removal of a part of the cream, has been reduced in solids below thirteen per cent, unless the milk was sold as skimmed milk, and out of a vessel, can, or package marked as required by § 7 ; and it is not necessary that a complaint charging such an offence should be drawn under § 6.</p> <p>At the trial of a complaint, under the Pub. Sts. c. 57, § 5, alleging, in the first count, a sale by the defendant, at a time and place named, of adulterated milk, and, in the second count, the having in his possession, at the same time and place, such milk, with intent unlawfully to sell the same, the defendant asked the judge to rule, that, “ if the jury find, on the evidence, that there was a consummated sale, they cannot convict under the second count.” The judge declined so to rule; and, after instructing the jury as to what would authorize a conviction on the first count, instructed them that, “ if they should further find that the defendant kept the same milk with intent to sell it, they would be authorized to return a verdict of guilty on the second count.” Held, that the defendant had no ground of exception.</p>

<p>Under the Pub. Sts. c. 57, § 2, as amended by the Sts. of 1884, c. 310, § 3, and 1885, c. 352, § 4, an inspector of milk cannot appoint an agent who shall have the right, in the absence of the inspector, and without his immediate personal direction and control, to take, by force and against the will of the owner, samples of milk for analysis from a carriage used for the conveyance of milk.</p>

<p>At the trial of an indictment, in several counts, for embezzlement, the defendant was convicted upon a count which charged him with embezzling the sum of $11, while in the employ of P. It appeared that the defendant, a clerk of P., sold certain goods of P. to S., who testified that he paid the defendant therefor $61. The defendant testified that he put the money which S. paid him into the money-drawer, or gave it to the bookkeeper of P. The entry made by the defendant in his own handwriting in P.’s book credited S. with having paid the defendant $50. The government called P.’s bookkeeper as a witness, and was allowed to ask him, “Did your cash run over on the day the money was paid to the defendant by S. ? ” The witness answered that it did not. No books or accounts were introduced in evidence to show the cash balance on that day, or to show the fact testified to by the witness. Held, that the defendant had no ground of exception.</p> <p>At the trial of an indictment for embezzlement, in several counts, there was evidence that, in a conversation between the defendant and his employer subsequently to the alleged acts of embezzlement, the defendant admitted that he had been taking money from his employer “ all along, ever since he began to work for him, and could not say how much he had taken.” It appeared that no allusion was made to the specific matters charged in the indictment by- name, words, or figures. The judge instructed the jury that they should not consider this confession, unless it liad reference to some of the specific matters charged in the indictment. Held, that the defendant had no ground of exception.</p>

<p>The declaration in an action by a corporation alleged that certain persons agreed to form a corporation under general laws, if they could obtain certain machinery from the defendant, and to build a factory for the manufacture of certain goods; that such persons informed the defendant of the premises, and, in the name and for the benefit of the proposed corporation, applied to the defendant, who was a manufacturer of the machinery desired, for such machinery, and informed the defendant that the proposed corporation would proceed with its organization and would build a factory only in case a contract could be made with the defendant for the machinery ; that thereupon the defendant made two contracts in writing, one of which was under seal, to furnish the corporation with the machinery upon certain specified terms ; that afterwards, in anticipation of the defendant’s fulfilling his agreement, a factory was built for the corporation ; that said machinery could not be procured otherwise than from the defendant, which he well knew ; that the persons named, in behalf of the proposed corporation, before its organization was completed, were always ready to receive and pay for said machinery, and frequently demanded the same, but the defendant neglected and refused to furnish said machinery or any part thereof; and that said corporation was now duly organized and existed under the general laws. Held, on demurrer, that the declaration alleged a contract made before the plaintiff had a legal existence, and did not show any contract to which the plaintiff was a party; and that the action could not be maintained.</p>

<p>Under the Pub. Sts. c. 151, § 20, a judge of the Superior Court is not authorized to reserve, for the determination of this court, specific questions of law arising in a suit in equity, whe.n the determination of such questions will not enable this court to enter or order a final decree disposing of the case.</p>

<p>Writ of entry to recover a parcel of land in Brockton. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the demandant; and the tenant alleged exceptions. The facts appear in the opinion.</p>

<p>Contract, against Napoleon Dussault, Francis X. Dussault, and Charles Gagne, on a bond in the sum of $300, dated August 6, 1883, and executed by the first-named defendant as principal, and by the other defendants as sureties, reciting the attachment on mesne process by Julius Fogel of the goods and estate of Napoleon Dussault, to the amount of $300, by virtue of a writ in favor of said Fogel against the said Dussault, dated August 2, 1883, and returnable to the Second District Court for the county of Bristol on the fourth Monday in August, 1883, and the desire of said Napoleon Dussault to dissolve the attachment according to law; and containing the following condition: “ Now, therefore, if the said Napoleon Dussault shall, within thirty days after the final judgment in the aforesaid action, pay to the plaintiff therein named the amount, if any, which he shall recover in such action, and if said sureties shall also within thirty days after the entry of any special judgment in said action, in accordance with section one of the sixty-eighth chapter of the statutes of said Commonwealth passed in the year 1875, pay to said plaintiff the sum, if any, for which such judgment shall be entered, then this obligation shall be void, otherwise it shall be and remain in full force and virtue.”</p> <p>The declaration alleged that, on August 2, 1883, the plaintiff attached the goods of Napoleon Dussault by virtue of a writ dated on said August 2, and returnable to the Second District Court for the county of Bristol on the fourth Monday of said August; that, at the request of said Napoleon Dussanlt, the plaintiff released the said goods and chattels from attachment, and took from the defendants a certain writing obligatory, a copy of which was annexed; that final judgment was entered for the plaintiff in said action, on December 3, 1883, for the sum of $15, debt, and $19.42, costs; that the judgment was unpaid for thirty days after date thereof, and the defendants refused, though often requested, to pay the same; and that the defendants owed the plaintiff the amount of said judgment. Answer, a general denial.</p> <p>Trial in the Superior Court, without a jury, before Aldrich, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared in evidence that the defendants executed the bond declared on, and in consequence thereof the property attached was released; that said bond was filed by the plaintiff on the return day of the writ in said suit, which was duly entered in the Second" District Court of Bristol at Fall River; and that judgment for the plaintiff was entered in the same.</p> <p>The defendants produced in evidence the record of the case in which said bond was filed, which record showed that, on December 3, 1883, the defendant was defaulted, after appearing and filing an answer, and judgment was entered for the plaintiff in the sum of $15; that the defendant claimed an appeal; that a surety was ordered on or before December 10; and that execution issued on December 12, for $15, debt, and $19.42, costs, which execution was returned and filed on September 22, 1884.</p> <p>It was admitted by the defendants that the papers in the original case were not transmitted to the clerk of the Superior Court.</p> <p>The plaintiff contended that, upon the evidence, the defendant in the original case not having furnished a surety on his appeal, the plaintiff was entitled to an execution upon his judgment, which was final, and that the bond declared on was not such a bond as is required by statute in such cases, and therefore could not avoid the requirement of furnishing other sureties or filing a bond for an appeal.</p> <p>The defendants contended that the plaintiff’s remedy, if any, was by a motion in the Superior Court to dismiss the appeal, or to affirm the judgment of the court below, and asked the judge to rule that a bond to dissolve an attachment having been given in the original case, no new bond with surety for an appeal was required by law, and that from the time the appeal was claimed it became perfect, and the judgment appealed from was vacated, and therefore there was no breach of the conditions of the bond in suit, because there was no final judgment; and that it was not the duty of the defendant in the original case to carry the papers to the Superior Court, but that it was the duty of the clerk of the District Court so to transmit the same.</p> <p>Without passing upon the question as to whether the defendants’ requests for rulings were correct statements of law, the judge ruled that the defendants could not, under their answer, be allowed to impeach the judgment in the original suit against the defendant Napoleon Dussault; that, it being the judgment of a domestic court having jurisdiction of the subject matter of the suit, the judgment debtor could not, in the present action, collaterally impeach that judgment; and that, as the three defendants had answered jointly, the only defence open to them would be one common to them all; and as the only defence they offered to make at the trial of this case was to show there was no valid final judgment in the original suit, the judge held they had failed in their defence altogether.</p> <p>Judgment was accordingly given for the plaintiff ; and the defendants alleged exceptions.</p>

<p>In 1869, A. bought of B. a parcel of land which was subject to a mortgage made by B. to a bank to secure his promissory note. The deed from B. to A. excepted the mortgage from the covenant against incumbrances, and contained these words: “ which mortgage the aforesaid A. assumes and is to pay and save me harmless for the same, that being a part of the aforesaid consideration.” In 1871, A., by a quitclaim deed, conveyed the land to C., covenanting that it was free from incumbrances made or suffered by him, and containing a covenant of warranty against the claims of all persons claiming under him. This deed was delivered in 1871, but was not recorded until 1880. In 1878, A. gave a mortgage on the land to the above-named bank, which had no notice of his deed to C., to secure his own note for an amount similar to that of B.’s note to the hank, which was then paid and his mortgage discharged. The note of A., who died in 1880, was unpaid, and the mortgage undischarged, wiien C. presented to commissioners appointed by the Probate Court on the insolvent estate of A. a claim for an alleged breach of covenant, which was disallowed; and C. appealed to this court. Pending the appeal, the land was sold under a power in the mortgage for less than sufficient to pay the note. Eetd, that the claim of C. was rightly disallowed.</p>

<p>In an action of ejectment for the recovery of a term, it appeared that the buildings on the demised premises were partially destroyed by fire during the term ; that the plaintiff did not express or entertain any intention of repairing or rebuilding them; that the lessor removed the remains of the old buildings, and afterwards erected a new building, which was much larger, more expensive/ and more valuable than the old buildings, and yielded larger rents and profits ; and that the lessor, in so doing, acted in good faith, and in the belief that he was entitled to the possession of the premises. Held, that the plaintiff had no ground of exception to a ruling that the measure of damages was the same as it would have been if the defendant had wrongfully withheld possession of the demised premises for the same length of time in substantially the same condition in which they were just before the fire; and that, from the gross rents and profits which might have been received from the estate, there should be deducted a fair compensation for the necessary time and labor involved in the care and management of the premises and in the collection of rents.</p> <p>An action of ejectment for the recovery of a term was referred to an assessor, who found that the fair value of the lease to the plaintiff was a certain sum for each year while he was dispossessed. Held, that the plaintiff was entitled to interest on each yearly sum of the amount named, from the time when it might have been realized by him if he had not been ejected, and that the plaintiff was not entitled to have the interest computed by making quarterly rests, although by the terms of the lease the rent was payable quarterly.</p>

<p>Bill ik equity, filed March 21, 1884, against Sarah E. Proctor, Henry F. Proctor, and George A. Murray, trustees under the will of George K. Proctor, deceased, and Alice M. Proctor. The case was heard by Morton, C. J., and reported for the consideration of the full court, in substance as follows :</p> <p>It appeared in evidence that George K. Proctor died on July 27, 1882, leaving a widow, Sarah E. Proctor, one of the defendants, and two minor children, namely, Lillia F. Proctor, the plaintiff, and Alice M. Proctor. The family had lived together up to the time of the death of George K. Proctor, and continued living together and forming one family for some time after his death and the probate of his will, September 4, 1882.</p> <p>The will of George K. Proctor, in which he was described as of Salem, in the first clause, gave to his brother, Henry F. Proctor, and George A. Murray, all sums received by them from a certain benefit association, in trust, after the payment of certain debts and expenses, “ to invest the residue, and pay over the same to my wife and children, in such sums, and at such times, as in the judgment of my said trustees their necessities may require.”</p> <p>The second clause was as follows: “ Being satisfied that it will be for the best interests and good of my family that my investment in the Produce Exchange Association should be continued, I give and bequeath unto Henry F. Proctor and George A. Murray aforesaid the following property, to wit, all my stock certificates, stock in trade, accounts, ready money, money in bank, leases, insurance policies, and every other thing whatsoever belonging and connected with the business of the Produce Exchange Association, upon the following trust, namely: I direct my said trustees to continue said business, giving to them full power to manage and conduct the same as in their discretion may seem wise and proper, and so long as they shall deem the same a good business investment, except as hereinafter provided; it is also my desire and request that my brother, said Henry F. Proctor, shall personally conduct and give his whole time and attention to said business, the same as he now does, and this trust is created as much with a view to his benefit and interest as that of my family; should he assent to and fulfil the terms of this request, I direct that the net incqme be ascertained as often as once in every six months, and the same be divided equally between my said brother and my wife, Sarah E. Proctor, as long as she continues my widow; the sum thus received by my brother is to be in full compensation for all services rendered by him, both as manager of said business and as trustee, and the sum paid to my said wife to be for her support and the support of my children, Lillia F. and Alice M. Proctor. In case of the marriage of my wife, then the income shall be paid out by my said trustees for the benefit of my wife and children then living, to either or all of them, in such proportional parts as their several necessities may require; that is to say, my said trustees shall have the right to apportion the income according to their discretion; at the decease of my wife, then I direct the income to be paid to my children then living, and the survivor of them. Upon the discontinuance of the business, or should my brother decline to enter upon the conduct of the business as hereinbefore provided, and, in any event, at the decease of my said brother, then this trust shall be terminated, when I direct and empower my trustees to sell, either at private or public sale, said business, with everything thereto belonging, and divide the proceeds thereof, with all accumulations not distributed, equally between my wife and children who may then be living, and the issue of any deceased child by right of representation; provided, however, if my beneficiaries herein named desire to continue said business on their own account, I direct my trustees to transfer the said business with all its belongings to them as it may then stand.”</p> <p>The third clause of the will was as follows: “ I also give, bequeath, and devise unto my aforesaid trustees all my wharf property and privileges at the Willows, on Salem Heck, to hold in trust, as follows: the income from the same to be paid over to my wife while she remains my widow, otherwise to be distributed as hereinbefore provided for the income named in item two, upon her re-marriage. Should my trustees deem it advisable to sell said property, I hereby empower them so to do, either at public or private sale, and the proceeds thereof, principal and interest, paid out to my wife and children in such sums and at such times as the needs of either or all may require.”</p> <p>The fifth clause of the will gave the rest and residue of the estate to the testator’s wife and children, “to be divided equally between them.”</p> <p>Henry F. Proctor and George A. Murray, two of the defendants, are the trustees named in said will, have duly qualified as trustees, and have, since the death of the testator, as directed in the will, continued- and carried on the grocery and provision business, and, every six months prior to the filing of this bill, have ascertained the net profit of the business and paid one half of the same to Sarah E. Proctor, as directed in the will.</p> <p>About the time of the filing of the plaintiff’s bill, the trustees had ascertained the net profit of the business for the six months then next preceding to be $802, one half the amount of which, namely, $401, the part directed' in the will to be paid Sarah E. Proctor, they hold subject to the direction of the court.</p> <p>The plaintiff, at the time of the hearing, was about nineteen years of age, and had entered into a marriage engagement. Some difficulty having arisen between the defendant Sarah E. Proctor and the affianced husband of the plaintiff, the relations between said Sarah E. and the plaintiff became inharmonious, and, in the month of October, 1883, the plaintiff left her mother at Beverly, where she was then boarding, and went to Malden to live with her aunt, where she still continues to live apart from the other members of the family.</p> <p>Without determining whether or not the circumstances were such as fully to justify the plaintiff in going away and ceasing to live with the other members of the family, it is found as a fact that the relations between the parties are such that it would be unpleasant and uncomfortable for the plaintiff to live with said Sarah E. and constitute part of her family. The defendant Sarah E. has refused to apply any part of the amount received by her from the trustees to the support of the plaintiff since the plaintiff ceased to live with her, but declares herself willing to contribute to her support, provided she returns and lives as a member of her family.</p> <p>If, upon these facts, the plaintiff is entitled thereto, either as matter of law or of judicial discretion, the trustees are to be directed hereafter to pay to the plaintiff one third of the one half of the net income of said business directed' in the will to be paid to Sarah E. Proctor; otherwise, the bill to be dismissed, or such other decree to be entered as the court shall deem proper.</p>

Tort for the conversion of certain personal property. Writ dated February 11, 1875.

<p>Petition to the Superior Court, filed October 8, 1883, for a jury to assess damages alleged to have been incurred by the petitioner in the use and occupation of his land and dwelling-house, by reason of the respondent’s elevating its road-bed adjoining the petitioner’s land nine feet, on March 23, 1882, according to a location filed in the city clerk’s office of the city of Boston. Trial before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The petitioner, on February 9, 1883, filed his original petition with the mayor and aldermen of the city of Boston for said damages; and, on April 2, 1883, said mayor and aldermen granted the petitioner leave to withdraw.</p> <p>The petitioner offered to prove the following facts: In 1845, one Wolkins and others owned a parcel of marsh land in what is now called South Boston. The respondent, by virtue of its charter, located its road-bed forty feet wide over and across said parcel, leaving parts of said parcel on both the easterly and westerly sides of said location. Wolkins and others, on June 18, 1845, in consideration of ten cents a square foot, conveyed by quitclaim deed said strip forty feet wide to the respondent and its assigns.</p> <p>The petitioner, by sundry mesne conveyances from said Wolkins and others, on November 30, 1869, became the owner of a part of the parcel of land, with the dwelling-house thereon built about the year 1850, on the easterly side of said forty-foot strip, and bounded thereby for a distance of sixty-six feet.</p> <p>The respondent originally, in 1845, constructed its road-bed at a grade of about two feet above the level of said marsh land, and maintained said road-bed at that grade from 1845 to 1882 along by the petitioner’s land and on the westerly side thereof.</p> <p>In the year 1846, Wolkins laid out and dedicated for public use Ewer Street, a way running westerly from what is now Ninth Street, to and across said railroad, which it intersected at the grade of said road-bed; and Ewer Street was used for more than twenty years as a street leading from Ninth Street across said railroad to Dorchester Avenue, and passed the premises of the petitioner on the southerly side thereof.</p> <p>Ewer Street, from the time of its laying out, in 1846, down to the year 1882, was of gradual descent from Ninth Street to the railroad, and surface water from Ninth Street and the lands abutting on Ewer Street flowed in and over Ewer Street to said railroad land, and thence passed through a ditch and wooden sluiceway built at the intersection of Ewer Street with the railroad road-bed across said road-bed to the marsh land on the westerly side of the railroad. During this period, the premises now owned by the petitioner were drained of all surface water through Ewer Street to said railroad land, and no surface water ever backed or flowed from said road-bed in and upon said premises; and from and after the year 1850, when the petitioner’s house was built, to the year 1882, the land about said house was one foot higher than the grade of said road-bed, on the westerly side thereof, and the sill of said house was four feet higher than said road-bed, there being a basement and cellar under said house.</p> <p>The house and land had enjoyed and received free view, light, and air, during said period, in, through, and over said road-bed, obstructed only by the passing trains of the respondent and by a board fence four feet high, built and maintained between said road-bed and said premises by the petitioner and his grantors; and from the ground to the bottom of each window in the first story the distance was eight feet, the, windows being four and one half feet high.</p> <p>At or about the time railroads were required by statute to erect and maintain fences along their lines (1874), the respondent built a fence along the easterly line of its road-bed across Ewer Street to and connecting with said fence of the petitioner, and maintained its fence across Ewer Street to the year 1882, but without interrupting the flow of surface water from the petitioner’s land and Ewer Street into the ditch and sluiceway aforesaid of the railroad.</p> <p>The respondent, in the latter part of 1882, raised its road-bed along the whole western boundary of the petitioner’s premises, and across the end of Ewer Street, by building upon its boundary line a stone wall of solid masonry, and building a close board fence on top of said wall, the wall being nine feet high and the fence five feet high, the whole structure extending up fourteen feet, more or less, above the grade of Ewer Street and the petitioner’s land. No culverts or drains were provided for said surface water by the respondent in or under said wall; and the respondent filled up its road-bed to a height at least nine inches above said wall, sloping down to the top of the wall.</p> <p>Immediately upon the construction of said works by the respondent, great quantities of surface water accumulated upon the petitioner’s premises and in the basement of his house, said water coming from Ninth Street and Ewer Street, and the lands adjoining thereto, and from off said railroad bed, and remained standing upon said premises and in Ewer Street, because the natural and customary flow of surface water before mentioned had been obstructed and destroyed by said works, and no drainage provided in its stead. The surface water and subsequent accumulations of surface water from the causes aforesaid remained upon and around the petitioner’s premises during the winter of 1882 and 1883, to such an extent as to render said premises unfit to live in and difficult of access. The petitioner thereupon, in said winter, to relieve his premises in a measure from the bad and untenantable condition in which they were put by said structure, was obliged to and did raise his dwelling-house five feet, by a brick cellar wall placed under the same, filled up the former cellar or basement, and filled in his own premises and Ewer Street in front thereof to a depth of three and one half feet at said railroad wall, and for a long distance up Ewer Street, to divert the surface water draining therein from -said premises. Still great quantities of surface water came and continue to come upon the petitioner’s premises from said railroad bed, elevated as it is, being especially noticeable in the winter and during heavy rain-falls; and the petitioner has no adequate means of preventing such drainage upon his premises.</p> <p>Before the petitioner raised his house, said wall with the fence on top extended above the tops of said first-story windows, entirely obstructing the view therefrom and greatly depriving said windows and the house of the light and air which had been enjoyed previously, and, even after the petitioner raised his house, as aforesaid, the top of said fence was on a level with the middle of said windows, and so continues at the present time, greatly obstructing said windows and the light, air, and view appurtenant thereto. The house, which is thirty-five feet long on its westerly side, is situated very near said railroad wall and fence, its northwest corner being five feet and six inches therefrom, and its southwest corner seventeen feet and seven inches; and the obstruction of the light, air, and view from said first-story windows on that side is very great.</p> <p>The petitioner, in raising his house and filling in about the same, was put to an expense of $1000, for money paid out, loss of rent, and labor; and, in addition thereto, the petitioner’s premises are permanently damaged in a further sum of not less than $1000, by being less favorably situated than before the raising of the grade of said railroad, in respect to view, light, and air, and being for all time subjected to great quantities of water from the surface of said road-bed.</p> <p>Upon this offer of proof, the judge ruled that the petition could not be maintained; and ordered the same to be dismissed. The petitioner alleged exceptions.</p>

Tort for killing the plaintiff’s dog. Trial in the Superior Court, without a jury, before Brigham, C. J., who found the following facts: The plaintiff, on February 20, 1884, was the owner of a dog, which was duly licensed' by the town of Reading, and wore a collar, duly marked as required by the Pub. Sts. e. 102, § 80.

<p>In 1873, an attachment was made of all the real estate of C. in a certain county. At that time C. appeared on the records of the registry of deeds as owning a third mortgage on a parcel of land in the county, but nothing more. In fact, this mortgage, and also a second mortgage, the assignment of which to'him had not been recorded, had been assigned by C. to A. after entry for breach of condition. These assignments to and by him were recorded in 1881. At the time of the attachment, he owned the equity of redemption, but the conveyance to him was not recorded until 1881, although before the above-named assignments' were recorded. Held, that A. could maintain a writ of entry, to recover the premises, against the purchaser at an execution sale in pursuance of the attachment.</p> <p>Sunday is excluded from the three days allowed by the Pub. Sts. c. 153, § 8, for filing a bill of exceptions.</p> <p>It seems that a notice, within the time limited by the Pub. Sts. c. 153, § 8, of the filing of a bill of exceptions, deposited in the post-office of the city in which the attorney of the excepting party resides, addressed to the attorney of the adverse party at the place of his residence, is sufficient, although the attorney of the excepting party does not reside within the county in which the court allowing the exceptions is held, and in which the attorney of the adverse party resides.</p>

<p>At the trial of an action for money had and received, the evidence tended to show that a disagreement liad arisen between the plaintiff and the defendant as to which of two lots of land had been originally agreed to be conveyed, the plaintiff contending that it was lot No. 8, and the defendant contending that it was lot No. 7; that, in view of this disagreement, the parties met, and made a new agreement, by which the defendant was to do certain work upon lot No. 7, and then the plaintiff would accept that lot; and that they differed as to the amount of the work which the defendant was to do upon lot No. 7. The plaintiff contended that the defendant had not done ail the work which had been agreed upon, and that the plaintiff was entitled to recover back the money which he had paid towards the price; and the defendant contended that he had performed ail the work agreed upon. There was also evidence that the plaintiff afterwards insisted upon a conveyance of lot No. 8. The judge, in instructing the jury, mentioned the plaintiff’s contention in regard to lot No. 8; stated the subsequent agreement as to the work to be done on lot No. 7; and added, “ And the plaintiff contends that lot 7 was never put in such condition; upon the other hand, the defendant contends that there was no mistake or misunderstanding as to the lot which was the subject of contract, and that no such subsequent verbal agreement about lot 7 was made as the plaintiff contends ; . . . . that, if the plaintiff proved to their satisfaction that his contention was right, and that lot 7 was not put in the condition which the plaintiff contends that the defendant agreed to put it in, then the plaintiff can recover $100 as upon a failure of consideration.” Held, that the plaintiff had no ground of exception.</p>

<p>A widow, who, in the lifetime of her husband, voluntarily leaves, with him, and with no intention of returning thereto, premises owned by him, and occupied by them for three years as a homestead, under the St. of 1851, c. 340, he having conveyed them by a deed in which she joins in release of dower only, cannot maintain a writ of entry to recover the premises.</p>

<p>If a cesspool and its cover, in a highway, are so constructed, that, in a heavy rain, the water which would ordinarily flow into the cesspool lifts the cover off, and leaves a hole into which a person may fall, this is a defect in the way for which the city in which the highway is situated is liable, under the'Pub. Sts. c. 52, § 18, for an injury thereby occasioned, if the city had notice that the cover was liable to come off, or, by the exercise of reasonable care, could have known it, and have remedied it.</p> <p>In an action against a city for an injury occasioned by falling into an open cesspool, the cover of which had floated off during a heavy rain, evidence that the cover had been off several times, during the year before the accident, under similar circumstances, is admissible on the issue whether the defect might have been remedied, or the injury prevented, by the exercise of reasonable care and diligence on the part of the city.</p>

Writ op error to reverse a judgment of the Superior Court in favor of the defendants in error in a personal action brought by them against the plaintiff in error. The errors assigned were an error in law apparent on the record, and four errors of fact. The defendants filed a demurrer, assigning as causes thereof that an error in law and an error in fact could not be joined, and that more than one error in fact could not be assigned.

<p>In an action upon a promissory note, it appeared that the note was made for the accommodation of L., who was not a party to it; that, when the note fell due, the plaintiff agreed with the defendant that, if the defendant would pay him another note made by the defendant and held by the plaintiff, and then due, “the plaintiff would undertake to see and would see L. and collect the note now sued upon from him, and release the defendant from liability thereon and deliver said note to him; ” and that the defendant paid the other note, and, relying upon the plaintiff’s agreement, omitted to take any steps to secure payment of the note in suit by L., as he would have done otherwise. Held, that these facts disclosed no defence to the action.</p>

<p>Contract. The declaration contained two counts, the first count being on an account annexed, for fifteen tons of hay at $15 per ton; and the second for $225, money had and received. Trial in the Superior Court, without a jury, before Blodgett, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff Patton testified as follows : “ In the summer of 1888 I was a member of the firm of C. B. Patton and Company, my partner being P. J. Daly. We had a lease of Long Island, and ran the hotel there for the summer; also cut and baled the hay grown on the island. Some time in September I called at the place of the defendant, a hay-dealer in Boston, and saw a young man in charge, and told him that our firm had some hay we wanted sold; he said, ‘ All right, send it along, and we ’ll sell it at one dollar per ton commission.’ We sent one hundred and eleven bales, and I superintended the delivery of it, and was there all the time, and we paid the teaming. Afterwards I saw the defendant; he said he had got the hay, and that the arrangement I made with the young man was all right about selling it for one dollar per ton; also, that he had sent his own team over and got thirteen bales, weighing 1| tons. That made one hundred and twenty-four bales in all delivered to him. The hay was baled at Long Island, under my supervision and direction ; it was baled so as to weigh eight bales to the ton. I have been buying, selling, and cutting bay for fifteen or twenty years, was in the hay business for years in Louisville, Kentucky, and have handled as much hay as any man of my age. I cut, buy, and sell hay now, at my farm in Walpole. This hay was worth about $17 per ton. After the hay was sent, I called on the defendant two or three times for an account; the last time I called, he told me that the hay was not all sold. I went to the storehouse, and a little lot of loose hay was shown me; it was not our hay. I saw none of ours there. At one of my visits to the defendant’s store, I saw him sell one small lot at the rate of $17 per ton, and another small lot at the rate of $18 per ton. He said he was getting pretty good prices by selling it in small lots. I never could get an account from him about the hay. There never was any question raised about the amount of hay he got until yesterday, when he claimed that he only received one hundred and eleven bales. I told him that I thought he was mistaken ; that he had not credited me with the thirteen bales he took by his own team. We had nothing to do about storing the bay; a commission merchant always attends to that if he has not got a place of his own. The hay was weighed on city scales, the day it was delivered to the defendant, for the purpose of paying for the teaming, as we paid by the hundred-weight.”</p> <p>The defendant objected to the admission of the testimony of Patton, as to the market value of the hay; but the objection was overruled.</p> <p>Patrick J. Daly, the other plaintiff, testified as follows: “ Was a partner with C. B. Patton, as C. B. Patton & Co. Leased Long Island for the summer of 1883; ran the hotel and cut hay there. The defendant was at the island several times during the summer. I was introduced to him by Patton as his partner. Hay was baled at the island; was there in early part of baling; bales weighed two hundred and fifty pounds. Was then taken sick. Know nothing about delivery of hay to the defendant. In November, called a number of times on the defendant for an account. Never could get one. On December 5, rendered the defendant a statement for one hundred and twenty-four bales of hay, and asked for a settlement. He made no objection, but said he had not sold all the hay. After that, and before this suit was begun, I called on him again, and could not get any account. He said the hay was all sold, but there were a few small accounts he had not collected yet.”</p> <p>The defendant was present at the trial, but did not testify, and offered no evidence.</p> <p>At the close of the plaintiffs’ case, the defendant asked the judge to rule that, upon all the evidence, the plaintiffs could not maintain their action; and that the plaintiffs could in no event recover a sum in excess of $14 per ton. But the judge declined so to rule; and found for the plaintiffs in the sum of $225, and interest from the date of the writ. The defendant alleged exceptions.</p>

Indictment for an assault with a dangerous weapon upon one Keenan. Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court, in substance as follows: The government contended that the assault was committed by the defendant’s discharging four bullets from a revolver at Keenan, one of which wounded him, while he was at or near the street door of the defendant’s saloon in Cambridge, and while the defendant was in the saloon.

<p>The commitment, under the St. of 1882, c. 181, § 3, of a child to the custody of the overseers of the poor of a city, by a district court, upon finding that the child was, by the neglect of its parent, growing up without education or salutary control, and in circumstances exposing it to lead an idle and dissolute life, is valid, and the statute is constitutional; but the commitment is not conclusive upon the parent as an adjudication on his right to the custody of the child; and, upon a petition for a writ of habeas corpus to obtain the custody of the child, the parent may show that the cause stated for the commitment no longer exists, that he is competent and fit to have the care of the child, and that the welfare of the child will permit of its removal to its parent’s custody.</p>

<p>Contract for money lent upon a pledge of shares of stock in the Dennett Dental Naboli Company, a corporation formed to promote the use in dentistry of an invented compound called naboli; with counts in tort for false and fraudulent representations. After the former decision, reported 1B7 Mass. 315, the case was tried in the Superior Court, before Staples, J. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Petition, by the selectmen of the town of Brookline, against the board of railroad commissioners of the Commonwealth, and William Aspinwall, to restrain said board from assuming jurisdiction of an appeal by said Aspinwall from a decision of the county commissioners, ordering, upon the petition of said selectmen, certain alterations in a bridge over the Boston and Albany Railroad in Washington Street, a highway in said Brookline, and its approaches. The case was heard by O. Allen, J., and reserved for the consideration of the full court. The facts appear in the opinion.</p>

Tort for personal injuries occasioned to the plaintiff by falling on the sidewalk of Mount Vernon Street, in the defendant city.

<p>Motion to dismiss an appeal from the Third District Court of Eastern Middlesex, on the ground that the bond filed by the appellant, who was the defendant in the action, which was replevin, was defective and insufficient. The defect relied on was that the bond was executed by the defendant alone, without a surety. It was, however, in this form approved in writing by the then attorney for the plaintiff.</p> <p>The Superior Court dismissed the appeal; and the defendant appealed to this court.</p>

<p>A conveyance of land in fee to a husband and wife, prior to the St. of 1885, c. 237, conveyed an estate by entireties, of which he had the right to make a lease good against the wife during coverture.</p> <p>The execution and delivery, by a husband,, of a written lease of land conveyed in fee to him and his wife prior to the St. of 1885, c. 237, determines the rights of a person holding as a tenant at will or licensee of the wife; and the lessee may maintain an action on the Pub. Sts. c. 175, against such person, to recover possession of the premises.</p> <p>At the trial of an action on the Pub. Sts. c. 175, in the Superior Court, on appeal, to recover possession of certain premises leased to the plaintiff, he called witnesses, who testified that the defendant was present and was represented by counsel at the trial of this action in the district court; that one R., a constable, who had since died, was also present, and stated to the presiding judge, in the course of the trial, that he served upon the defendant notice of the making of the lease and of -thfe plaintiff’s claim under it; that there was no denial of the notice on the part of the defendant during that trial; but the witnesses, could not remember whether R. had been sworn or testified as a witness at the time of making such statement. Held, that the defendant had no ground of exception to the admission of the evidence.</p>

<p>A corporation issued certain notes with interest coupons attached, payable to bearer in three years after their date, and containing this provision: “ The holder hereof may ” on a day named, “ or ” on another day named, six months later, “and at no other time, exchange this note, coupons not due being attached, for the stock of the company at par, that is, for one share.” At a meeting of the corporation, held after this issue and before the first date named in the note, it was voted to increase the capital stock, and the stockholders were given the right to take shares at par therein, in the proportion of one new share to three old shares held by them respectively. At the time the notes were issued, there was, in the hands of certain trustees, a sufficient amount of full paid stock of the corporation, subject to its control and not otherwise appropriated, to enable it to perform its contract to deliver stock for the notes. Held, that a bill in equity, filed on the day when the above-named meeting was held, by a holder of said notes, to enable him to share on equitable terms in the benefit of the issue of the additional shares, could not be maintained.</p> <p>Where the terms of a statute of one State which have received a judicial construction are used in a later statute-in another State, that construction is to be given to the later statute.</p> <p>If a person contracting to deliver a certain number of shares of stock at a future day has that number of shares in his possession or control when he makes the contract, the sale of such shares by him before the date of delivery mentioned in the contract does not make the original contract illegal, under the Pub. Sts. c. 78, §6.</p>

Contract to recover the amount of a bank check for $91.08, signed by the defendants, dated March 31, 1883, and payable to the order of Charles Barney. Trial in the Superior Court, before Knowlton, J., who reported the case for the determination of this court, in substance as follows: On March 27, 1883, a young man went to the Metropolitan hotel in Boston, of which the plaintiff was the proprietor, and registered his name. as Charles Barney.

Tort for breaking and entering the plaintiff’s close on North Street, in Boston, and breaking down and destroying the fences and gates thereon. Writ dated October 24, 1884.

Tort for malicious prosecution. Writ dated March 1, 1884. Trial in the Superior Court, before Bacon, J., who reported the case for the determination of this court, in substance as follows; Drake, on August 25, 1883, made a complaint before a trial justice, charging Moyle with wilfully committing a trespass, on August 13, 1883, and unlawfully and wilfully cutting down, carrying away, and destroying three hundred trees, of the value of $30, of the property of Drake.

<p>Tort for personal, injuries occasioned to the plaintiff by an alleged defect in North Street, a highway in.Boston. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows :</p> <p>The plaintiff testified that he was on his way to the. East Boston Ferry, going to his home by his usual route, and was walking down North Street on the southerly sidewalk; that it was snowing at the time, and that two or three inches of snow-had then fallen upon the walk, so that he could not see the face of the walk or the cover of a certain coal-hole therein; that, as he stepped upon what must have been the cover, be felt it slip or turn over, he was not certain which, and that he fell with hie right leg going down into the opening, and received the injuries complained of; that when his leg was in the opening, he saw the cover a short distance from him, bottom side up; and that it had a ring in it in which to put a rope to fasten it down when in place, but there was no rope in it.</p> <p>Charles Dolan testified that he was a policeman, and had been for several years, and had patrolled this street; that this coal-hole was one of three in the sidewalk in front of the premises known as the North End Mission; that he had repeatedly walked safely over this coal-hole when covered by means of this cover, and had seen other people do so; that he had never seen this cover out of place till this time; that he was at the place soon after the plaintiff fell into the opening; that the cover at the time lay at a short distance from the opening, bottom side up; that there was a ring in it with which to fasten the cover down; that there was nothing to show that it was fastened at the time of the accident; that the covers of all coal-holes in sidewalks should be fastened to hold them in place, and the usual way of fastening was to put a rope in the ring in the bottom of the cover and a stick through the rope; that, some months before the accident, complaint had been made that the surface of the covers of the other two had become smooth from wear, and new covers were then put on all three; that it was his duty to examine and report anything wrong in the street he patrolled, and that he always fully attended to this duty; that he had noticed these covers, when in the opening, to be firm and close fitting, tightly set in the sidewalk, presenting no obstruction to travel, and even and regular with the surface of the walk; that he had never seen any cause for complaint against these covers, excepting that mentioned concerning their smooth surface, and that this was remedied before the accident; that these covers, at the time of the accident, were better and stronger covers than those generally used in the sidewalks; and that he never knew, until after the accident, that this cover had not been secured by a fastening made to it under the sidewalk.</p> <p>Benjamin Luscomb testified that, at the time of the accident, he was superintendent in charge of the North End Mission; that, immediately after the accident, he found the cover off and near the hole, bottom up; that he thereupon ordered the janitor to go down into the basement and see to the fastening of the coal-hole covers; that he and the janitor went down to the basement right away, and that he ordered the janitor immediately to procure a rope and fasten this cover in its place; that there were three coal-holes in front of these premises; that the cover of this coal-hole had no rope attached to it, and he did not know whether it had been fastened by means of a rope during the time he was superintendent; that he found a rope" hanging unfastened in one of the other two when he examined them just after the accident; that all the covers were close fitting and tight in place; that he had walked over them a good many times, and had seen others do so safely, and he thought that they were better than any coal-hole covers he had seen in the city, and he had looked at many; and that he had noticed that this one never moved when stepped upon.</p> <p>Edwin S. Hanscom testified that, at the time of the accident, he was, and for five months previously had been, janitor of the North End Mission; that the three openings were designed for the taking of coal through the sidewalk into the cellar; that the other two had been used for that purpose, but the one into which the plaintiff fell had not been used for coal to his knowledge during that time; and that he examined all the covers immediately after the accident, and found none of them fastened.</p> <p>No witness testified as to the condition of the cover or its fastenings at the time it was first put into the walk.</p> <p>The defendant introduced no evidence; but asked the judge to rule, as matter of law, that, upon the evidence introduced by the plaintiff, he had failed to make out bis case, and could not recover, inasmuch as he had failed to offer any evidence of notice or knowledge on the part of the defendant as to the existence of the detect alleged, or any evidence of any opportunity for the defendant, by the exercise of reasonable care and -diligence on its part, to have had any knowledge or notice of the existence of said defect before the happening of the accident. The judge refused so to rule, and submitted the case to the jury upon appropriate instructions, which were not excepted to.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

• Bill in EQUITY, filed January 4, 1883, against James M. Watson, Abram C. Paul, and Daniel Potter, to restrain the defendants from selling or causing to be sold, under two executions in favor of the defendant Watson and against Christopher Nugent and James Nugent, copartners as C. Nugent and Company, both of Newark, in the State of New Jersey, two parcels of land, one situate in Lynn, and the other situate in Grant-ville, in the town of Needham, in this Commonwealth.

<p>The owner of two adjoining lots of vacant land, numbered 3 and 4 on a certain plan, mortgaged them by separate deeds to the same person. The mortgage of lot 3 conveyed the right to erect, maintain, and use for building purposes, a wall on lot 4, to be built and maintained at the equal cost and expense of the owners of lots 3 and 4. The mortgage of lot 4 stated that the conveyance was subject to the right of the owner of lot 3 to erect and maintain a wall on lot 4, to be built and maintained for building purposes at the equal expense of the owners of the two lots. The mortgagor then conveyed lot 4 by a warranty deed, subject to the mortgage upon it, and bounding it on a passageway included in lot 3, with a right of way therein. The grantee built a house upon lot 4, placing the wall next to lot 3 entirely on his own land, and building it at his own expense.' He also, subsequently to so building, paid off the mortgage. After the conveyance of lot 4, the mortgagor conveyed lot 3, describing it as subject to the mortgage upon it. The boundary on the street was stated to be a certain number of feet, including a passageway three feet wide, and the line between the lot conveyed and lot 4 was described as running through the centre of a brick partition wall. The deed also contained a condition that the passageway was to be kept open, not less than three feet wide'and not less than five feet high in the clear, for the benefit of lots 3 and 4. The grantee of lot 3 then built a house, inserting the timbers over the passageway into the wall on lot 4. Thirty years afterwards the owner of lot 3 proposed to build his house higher. Held, on a bill in equity by the owner of lot 4, that the owner of lot 3 had no right to place any further burden on the wall than he had already acquired by adverse use.</p>

<p>A debtor made an assignment in writing to trustees for the benefit of such creditors as should execute the instrument of assignment within sixty days from the date thereof, or within sucii further time as the trustees should allow “in and by a writing ” indorsed on the instrument of assignment. By the terms of the assignment the trustees were to convert the property of the debtor into money, and to distribute the net proceeds pro rata among said creditors. They also were permitted to carry on the debtor’s business of manufacturing so long as they should deem expedient, and to compromise, without any limitation of time, any claims against the debtor. Held, that the term “ a writing ” did not limit the trustees to the allowance of only one extension of the time in which creditors could become parties to the extension. Held, also, that if the trustees, through inadvertence, did not indorse a renewal of time before one extension had expired, this did not render the granting of a subsequent extension illegal, if it were reasonable, under all the circumstances of the case, that such extension should be made.</p>

<p>A person licensed to sell intoxicating liquors cannot be convicted, under the Pub. Sts. c. 100, § 1, of an unlawful sale, upon proof of a sale of such liquors, after eleven o’clock at night, contrary to one of the conditions of his license, by his servant, without his knowledge and consent, and in violation of his instructions.</p>

<p>A. was employed by B., who had contracts for building houses for C. and others, to work thereon. A. worked upon the different houses, and B. paid him money from time to time on account of his work generally, but no account was kept of his work on the different houses, and no application of any payment was made for labor on any specific house. B. failed, owing A. a certain sum. Held, that the payments by B. to A. should be applied to the earlier items of the account; and that A. could maintain a petition against C., under the Pub. Sts. c. 191, to enforce a lien for so much of his labor as was performed upon C.’s house, and which had not been paid for, but not for such as was upon the houses of others.</p> <p>It is no objection to the sufficiency of the statement of account of the amount due a person seeking to enforce a mechanic’s lien, under the Pub. Sts. c. 191, that it gives the total number of days’ labor between two dates named, without specifying the days on which the labor was performed; nor that it does not include all the labor performed by him upon the premises on which the lien is sought to be enforced, with credits for payments admitted to have been made, if it does not include any labor for which payment is not claimed.</p> <p>If a mechanic works on several houses, at day’s wages, and is paid by his employer, from time to time, sums of money on account, the fact that, in filing a lien statement for work done on one of the houses, he incorrectly states the amount due him owing to a mistake on his part of the proper way of appropriating the payments, does not prevent his maintaining a lien, under the Pub. Sts. c. 191, if he does not wilfully and knowingly claim more than is due.</p> <p>A petition, under the Pub. Sts. c. 191, to enforce a mechanic’s lien, brought by one creditor, in which another creditor, who is served with notice thereof, does not appear, and which is prosecuted to judgment for the respondent, is no bar to a petition, subsequently filed, by such other creditor, to enforce a lien upon the same property.</p>

Petition, under the Pub. Sts. c. 191, to enforce a mechanic’s lien. Trial in the Superior Court, without a jury, before Barker, J., who found for the petitioner, and ordered judgment accordingly; and the respondent alleged exceptions. The facts appear in the opinion.

<p>A wife is not entitled to prove, against the estate of her husband in insolvency, a claim for money lent by her to him from her separate estate, and used by him in his business, and for the amount of which she holds his promissory note; and the St. of 1884, c. 293, providing for the proof of equitable liabilities against insolvent estates, does not apply.</p>

<p>A testator, leaving a son, three married daughters, and two unmarried daughters, by his will gave to his son one sixth of the residue of his personal estate; provided that, if one or more of his daughters should die before the probate of the will, leaving no issue, the share given to his son should be proportionally increased ; and “ the remaining five sixths (or other portion, whatever the same may be) of such residue ” he bequeathed to trustees in trust to pay the net income thereof, quarter-yearly or of tener, “ to all-my daughters in equal shares, and the issue of any deceased daughter shall take the mother’s share; ” and further provided that, “ after the decease of the survivor of my daughters,” the trust fund should he distributed to those persons “ who may then take the same as my heirs.” After the testator’s death and the probate of the will, one of his daughters died unmarried, leaving a will, by which she bequeathed the residue of her property to one of her sisters. Held, that no part of the principal of the trust fund was to be distributed until the death of the survivor of the testator’s daughters; that the direction to pay the income of “ the remaining five sixths (or other portion, whatever the same may be)” of the residue “to all my daughters in equal shares,” was a gift to the daughters as a class; and that, in the event which had happened, the surviving daughters took the whole income.</p>

<p>Section 47 of the Pub. Sts. c. 119, providing that “ no member of a committee or officer of a domestic insurance company, who is charged with the duty of investing its funds, shall borrow the same," is directory only; and if such an officer borrows money of such a company, and fraudulently pledges for the loan the negotiable bonds of an innocent third person, the company acquires title to the bonds, although the loan is in violation of the statute and of a rule of the directors, if it acts in good faith and' without notice of the fraud.</p> <p>A loan made by an insurance company to one of its finance committee may be made in good faith and in the usual course of business, although it is in violation of the Pub. Sts. c. 119, § 47, and of a rule of the directors.</p>

<p>Eight actions of contract upon policies of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, against loss by fire upon merchandise in a building in Boston. The cases were tried together in this court, before Holmes, J. The jury returned a verdict for the plaintiff in each case ; and the defendants alleged exceptions, which appear in the opinion.</p>

<p>A. executed to B., “ trustee for myself,” a written assignment of all the money due A. on account of a certain deposit-book issued by a savings bank. B, brought an action against the bank to recover the balance of deposits made by A. The bank admitted the deposits and balance as alleged, and the assignment by A. to B. as trustee, and paid the money into court. Upon motion of the bank, the administrator of A.’s estate was summoned in and admitted as claimant under the Pub. Sts. c. 116, § 31. He denied the validity of the assignment, set up that it was in trust, and claimed the money. Held, that the administrator of A.’s estate was rightly admitted as claimant; that .the controversy between him and B. could be decided in this proceeding; and that the bank was entitled to be discharged.</p>

<p>Petition to a justice of this court, filed June 29, 1885, under the St. of 1883, e. 195, to compel one George A. Wilson to appear and testify before a special committee of the Common Council of the city of Boston. The case was heard by TP. Allen, J., and reserved for the consideration of the full court. The facts appear in the opinion.</p>

Contract to recover $500, money had and received by the defendant to the plaintiff’s use. 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: The plaintiff agreed to purchase of the defendant, who was a real estate broker, certain premises, No. 3 Boylston Place in Boston, for $10,000, in cash, and paid $500 in part payment thereof.

<p>A. and B. entered into a contract, by which A. agreed to sell B. a tract of land, and B. agreed to build ten houses upon it. A. was to advance a certain sum upon each house as the work progressed. B. was to give a mortgage of a certain amount upon each house, and, when the houses were finished, A. was to sell the mortgages, and, after taking out what was due him for the land and for advances, insurance, and other expenses, to pay the balance to B. B. gave C. an order on A. directing him to pay C. the amount of his bill for certain materials furnished for the houses, not exceeding a sum named, “to be.paid when mortgages are placed, and from the amounts realized from said mortgages above the amount due A. for land and advances.” This was accepted by A. in the following terms: “ I will reserve the amounts herein specified from the mortgages herein referred to, and from the amount left after deducting the payments due A. for land and advances, said amount to be paid when the mortgages are permanently placed by me.” B. failed to perform his contract, and A. was obliged to expend a large sum to complete it. A. assigned two of the mortgages at their full value, transferred seven of them as collateral security, on which he received about half of their face value, and held the remaining one himself. B. then conveyed to A. eight of the lots of land, being those not covered by the two mortgages assigned as above stated, by a warranty deed, containing the clause that the premises were conveyed subject to eight mortgages, which the grantee assumed and agreed to pay as part of the consideration. There were unpaid taxes upon the premises, which A. was obliged to pay. The amount of the two mortgages assigned for their full value, and the net value of the eight lots covered by the other mortgages, after deducting the amounts paid out by A., were not sufficient to pay him for his land and advances. Held, that C. could not maintain an action against A. on the order accepted by him.</p>

<p>In an action for deceit in the sale of a quantity of flour, the declaration in which alleged in substance that the defendant falsely and fraudulently represented the flour to be sound and sweet, knowing it to be unsound and sour, and thereby induced the plaintiff to buy it, evidence that the flour was received by the defendant as a part of a large lot of flour, the rest of which was sound, and -which flour, so far as he knew, was all alike, and was kept in the same manner until the sale to the plaintiff, is admissible ; and evidence that the plaintiff examined the flour before buying it, and said it was all right, is also admissible.</p> <p>At the trial of an action upon a guaranty of the soundness of goods sold, it appeared that the written guaranty upon which the plaintiff relied had been altered after it was signed by the defendant. The plaintiff contended that it was altered by the defendant in his office ; and the defendant denied that it was altered by him or by his authority. The plaintiff introduced a witness, who testified that A. brought the defendant’s bill into a store where the plaintiff then was; that a roll of bills was given to A.; and that A. and the plaintiff went out of the store together. The plaintiff then offered to show by this witness that the plaintiff found fault with the terms of the guaranty; and that A. said that “ he was authorized by the defendant to say, if it was not right, to return it to him, and that he would make it satisfactory.” The judge excluded the evidence offered, upon the ground that there was no evidence that A. had any authority from the defendant to receive or make such statements. Held, that the plaintiff had no ground of exception.</p>

<p>If the location of a way refers to a certain plan, and the description in the location and that on the plan differ, but, taking the description and the plan together, the way can be identified with reasonable certainty, the misdescription will not render the laying out of the way void.</p> <p>An objection, that the record of county commissioners does not show that there was sufficient notice of the meeting held for adjudicating upon the question of the common convenience and necessity of a way, and of the meeting for locating it, is not open on a bill in equity to restrain an entry upon and appropriation of land for the way, but can be taken only by a petition for a writ of certiorari.</p> <p>The surveyor of highways of a town, by order of the selectmen, began to build a way within two years after it was relocated by the county commissioners, and built a portion of it; but the town never specifically authorized, by an express vote, the building of the way as laid out. The officers of the town, with its acquiescence, proceeded from time to time to complete other parts of the way. At a meeting of the town, the return of the county commissioners was laid before the town, and the selectmen were instructed to obtain estimates of the cost of grading the way “ according to the instructions of the county commissioners in their report thereon, and to report to the town at its next town meeting.” The selectmen did not report to the town until more than eight years afterwards, when the town voted to grant a certain sum to be expended in repairing the way, “not having reference to settling any land damages for widening the same, if any should arise.” Held, that the town took possession of the land for the purpose of constructing the way, within the two years required by the Pub. Sts. c. 49, § 88.</p>

<p>Complaint on the Pub. Sts. c. 100, § 12, as amended by the St. of 1882, c. 259, § 1, alleging that the defendant, on July 19, 1885, at Lowell, was licensed to sell spirituous and intoxicating liquors in certain premises; that said premises were then and there used by the defendant for the sale of such liquors, under the provisions of the license; and that the defendant unlawfully placed and maintained upon said premises certain obstructions, to wit, certain blinds and curtains, which interfered with a view of the business conducted upon the premises. At the trial in the Superior Court, before Bacon, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>A bill in equity alleged that the defendant orally promised the plaintiff to convey to him certain real estate, if the plaintiff would assign to him a certain policy of insurance; that the defendant had in no part performed his promise; that the plaintiff had offered an assignment of the policy to the defendant, which he had not accepted ; and that the defendant had conveyed the real estate to another person, and the plaintiff had incurred some expenses, relying upon the defendant’s promise. Held, on demurrer, that the contract alleged was within the statute of' frauds, Pub. Sts. c. 78, § 1, cl. 4; and that the bill could not be maintained.</p>

<p>A testator, by his will, gave to his executors for the use of his grandson, A., $2000, the income of which was to be paid to him during the life of his father, B., and then the principal was to be paid to A. or his heirs at law ; and also gave to his executors $3000, to be invested in their names, and, at such times as they saw fit, they were to pay the interest thereof to B.; provided that, if any creditor of B. should attempt to obtain any portion of this sum, the executors should not be held to owe the same or any portion thereof to B., but in such case all of the interest or income then due was to be paid to A., or, if he should not be living, the executors were to retain it for their own use; that, on B.’s death, the $3000 was to be paid to A. or his heirs; and that, if A. should die before B., the $2000 was to be held during B.’s life, and then “be paid in the same way to the heirs at law of said A.” A. died before B., leaving no widow or issue. Held, that the trust fund did not vest in B. upon A.’s death; that B. was not one of the legal heirs of A. under the will; and that the fund should be distributed among those who were heirs at law of A. upon B.’s death.</p>

<p>A bond executed by the treasurer of a corporation was conditioned that he “ shall faithfully discharge his said trust as treasurer, and shall take good care of the corporate funds which may come to his hands, and shall make good to the corporation any losses therein which may accrue by reason of any gross neglect or misfeasance of his, during his official service; and shall faithfully fulfil his duties as treasurer, according to the constitution and by-laws ” of the corporation. The by-laws provided that it should be the duty of the treasurer to take charge of all moneys belonging to the corporation; to collect all fees and taxes; to pay all bills against the corporation when approved by the board of directors; to keep a full account of all receipts and expenditures in a book belonging to the corporation; and to invest the funds of the corporation, with the approval of the board of directors. In an action upon the bond, the plaintiff introduced evidence tending to show that the defendant refused to assist a person authorized by the directors to collect money due the corporation, by furnishing necessary bills and papers; that a book of records of the corporation was found on the defendant’s table with'some of the entries torn out; that he took part with others in seeking a dissolution of the corporation; and that he exposed property of the corporation to be attached by a creditor. Held, that there was no evidence of a breach of any condition of the bond in suit.</p>

<p>In an action by an administrator to recover a sum of money given by his intestate to the defendant, on the ground that the money was obtained by the undue influence of the defendant, there was evidence that the donor was a woman eighty-four years of age, who was sick much of the time, weak in mind and memory, and broken down; that the gift was of a large portion of the donor’s estate; that the defendant, who was not a relative of the donor, was her physician, and attended her frequently; that he had charge of all her affairs, and was her only adviser; that he was consulted by the donor as to employing or discharging servants or nurses, and as to her domestic affairs; that she dressed according to his advice; that she relied upon him for direction in all her affairs; that the gift was made to him without consultation with any one ; that the fact of the gift having been made was kept secret by him until after her death ; and that, when the donor’s relatives visited her, he kept away. Held, that the question whether the defendant exercised undue influence was properly submitted to the jury.</p> <p>In an action by an administrator to recover a sum of money given by his intestate to the defendant, on the ground that the money was obtained by the undue influence of the defendant, the jury were instructed that, when a fiduciary or confidential relation is established between a donor and a donee, a case arises for watchfulness on the part of those who have to pass on the validity of the gift, to see that this confidence has. not been abused by the exercise of undue influence; that the mere existence of such a relation did not, as matter of law, operate to bar the right of the beneficiary to receive such a bounty; that if the donor was of sound mind, and clearly understood the transaction, and exercised a free will in the act, under no restraint or undue influence, such gift would be supported; that the law viewed such transactions with jealousy; that if, at the time of the gift, the donor’s mind was enfeebled by age and disease, though not to the extent of producing mental unsoundness, and the donor acted without independent and disinterested advice, and in the presence of the donee, and such gift was of a large portion of all the donor’s estate, and operated to deprive those having a natural claim to the donor’s bounty of all benefit from the donor’s estate, these circumstances, if proved and unexplained, would authorize a jury to find the gift void, through undue influence, without proof of specific acts or conduct of the donee; and that where the donee was a witness, and other evidence was introduced, the whole matter was for the determination of the jury, and the general burden was on the plaintiff, taking all the evidence, natural presumptions, and inferences together, to establish the proposition of undue influence. Held, that the defendant had no ground of exception.</p> <p>In an action by an administrator to recover a sum of money given by his intestate to the defendant, on the ground that the money was obtained by the undue influence of the defendant, after a witness had testified to a conversation with the intestate about two years before her death, which disclosed her state of mind at that time towards her sister, because of the condition of the sister’s son, evidence was admitted that the sister had living with her a son, who was partially blind at the date of the gift; and that the intestate then knew it. Held, that the defendant had no ground of exception.</p>

Tort for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. After the former decision, reported 137 Mass. 197, the case came on for trial in the Superior Court, before Pitman, J., and the plaintiff offered to prove the following facts; The accident occurred on February 17, 1881, on Aspinwall Avenue, a public street in Brookline, at a point one hundred and forty feet, more or less, distant from Harvard Street.

Contract upon a promissory note. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows: The consideration for the note was forty-six hogsheads of Demerara molasses, sold by the plaintiff to the defendants, and which the plaintiff had purchased of a dealer in New York.

Tort for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows: On March 4, 1882, the date of the plaintiff’s injury, and for some time before, the plaintiff, with her family, occupied a tenement in a dwelling-house on Boylston Avenue, in the city of Boston.

<p>If a will is so ambiguous that a trustee appointed thereunder is unwilling to take the responsibility of action under it, his proper course is to seek the instructions of this court by a suit in equity, and not to render a fictitious account in the Probate Court for the purpose of settling the rights of the parties interested.</p>

The case was heard by Grardner, J., and reserved for the consideration of the full court, upon agreed facts, in substance as follows: The ninth article of the will, after giving several legacies, provided in the second clause as follows: “To the said John B. Callender and Mary H. Tilton the additional sum of two thousand dollars each.” John B. Callender was not a relation by blood or adoption of the testator, and died before him.

<p>Contract for money lent. Writ dated April 30, 1883. Answer, a general denial. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It was not in dispute that the defendant became bishop of the Roman Catholic diocese of Boston in March, 1866, and archbishop of the same in March, 1875; that the Roman Catholic Church of the Immaculate Conception in Lawrence was included in said diocese, and subject to the jurisdiction of the defendant thereof in church matters until 1877; that the title to the land upon which the said church was built, together with the title to the land in Lawrence upon which the Orphan Asylum was erected, were in the defendant until 1877, having been conveyed to him by John B. Fitzpatrick, former bishop of said diocese, by deed in fee simple, dated February 8, 1866, and duly recorded, which deed was executed by said Fitzpatrick through his attorney, James A. Healy"; that said church was not incorporated, and had no organization or determinate membership; and that in 1877 the defendant conveyed, by deeds duly recorded, the said lands and church to certain members of the Augustinian Order, a regular religious order, over which the defendant had no control or jurisdiction.</p> <p>The plaintiff introduced evidence to show that, from June 22, 1866, to December 2, 1875, inclusive, the plaintiff deposited with the various clergymen placed in charge of said church by the defendant up to the time of said conveyance thereof to the Augustinians, and with clergymen thereof in charge at the time the defendant became bishop, and for some time afterwards, various sums of money from time to time, the first of said deposits being made June 1, 1866, upon the agreement and conditions contained in a certain pass-book or deposit-book upon which said deposits were entered, and entries of partial payments or withdrawals and computations of interest were made; that the first book upon which such deposits were made was taken up in 1870 by one Orr, then pastor in charge of said church, and a new one given the plaintiff in place thereof, which new book was introduced as evidence of such deposits, withdrawals, and computations, the last payment thereon being a payment of interest made by said Augustinians on October 2, 1878.*</p> <p>The defendant, being called as a witness by the plaintiff, testified that he held the legal title to most of the church property within his jurisdiction; that under the ecclesiastical law and usages of his Church the bishop or archbishop within his diocese has full power in the administration of church affairs, including the legislative, judicial, and executive powers; that under such law and usages there are no separate parishes in the United States; that the diocese is the parish, and the bishop or archbishop the universal parish priest; that all the power possessed by priests or pastors is delegated from the bishop or archbishop ; that he was a member of the second plenary council of Roman Catholic bishops in the United States, held at Baltimore in 1866; that among the decrees made by said council for church administration and discipline were the following:</p> <p>“No. 192. ... We admonish bishops to watch lest priests by rashly building churches, or repairing them, or in any other way contracting debt, burden the property of the Church or lose credit to the dishonor of religion; hence let them demand at least yearly a financial account, and let them not permit priests to contract debt in the name or for the sake of the Church without written permission.”</p> <p>“ No. 200. . . . But that the bishops may be able to protect themselves against undue meddling of lay tribunals which scarcely recognize the laws of the Church, nothing now is left to the bishops but to take to themselves the fullest administration of property in the presence of civil power, in order that they may provide to have all things done according to the direction of ecclesiastical laws.”</p> <p>The defendant further testified, among other things, that after the decree first above mentioned, so far as said church and its pastors were concerned, he lived up to the requirements of said decree, and had a yearly account of its financial condition, including debts due depositors; that he visited said church as often as once a year; that when he became bishop he took with the legal title to said church property the legal title to certain lands in said Lawrence devoted to a cemetery, in which licenses were granted for burials upon payment of license fees to the pastor; that the taxes which were assessed to him were paid by the pastor of said church, and the insurance and repairs upon said structure were paid by said pastor, all by the defendant’s directions; that he knew there was no legal organization of a church, or any means of determining its membership; that when he became bishop he learned from one Taft, then the clergyman in charge of said parish, that he was carrying on the banking business and had issued deposit-books to a large amount to various depositors; that, if it had been a new question, he would not have permitted it to be carried on, but under the circumstances he thought it the best course to continue the business, until such time as to permit of the business being stopped without loss to the depositors; that he could have stopped the receipt of further deposits if he had chosen so to do, but did not think it wise under the circumstances; that a few days before Taft died, in 1868, he surrendered to the defendant what money and securities he then had, amounting to nearly $40,000, to meet the claims of depositors and others; that he gave this amount, at different times, and in sums varying from $2000 to $3000, to one Doherty, who was appointed by the defendant to succeed Taft as pastor, to meet the current demands of depositors; that, between 1868 and 1870, he raised $41,873 upon his notes secured by two mortgages, one upon said church property and the other upon another piece of church property in South Lawrence, to meet the current demands of the depositors, over and beyond the current supply, and thereafter raised, at three different dates between said years, the sum of $8000 upon his unsecured notes, and paid this sum, together with said $41,873, to said depositors as they demanded it, by and through Doherty; that when one Orr, who was appointed by the defendant to succeed Doherty, left said pastorate, the amount due depositors aggregated $175,000, and remained about the same down to the date of the transfer of all said church property to said Augustinian Society, which became insolvent in 1883; that the amount due depositors from the time he became bishop very largely exceeded in value the entire church property, which was heavily encumbered with mortgages; that he knew this banking business was carried on in a building connected with the church, and which was part of the church property; that in 1870 Orr bought a valuable piece of land on Union Street in said Lawrence, and built thereon a church edifice, and that he thought some of the deposits at said church went into this Union Street property, the legal title to which was transferred to the defendant in 1872 by Orr, after the construction of said edifice, by deed in common form, and by deed in common form was transferred in 1877 by the defendant to John P. Gilmore, one of said Augustinians; that he knew Doherty and Orr continued the banking business upon a large scale; that he thought he did not give them written permission so to do, as provided in said decree Uo. 192, but should have had no hesitation in so doing had he been asked so to do; that he knew the funds received from time to time from various depositors were kept mingled with the revenues of the church, and that out of this common fund were paid all kinds of debts connected with the administration of said church; that he, the defendant, furnished of his own personal funds $20,000, for the construction in part of said Union Street edifice.</p> <p>Upon cross-examination, the plaintiff testified that William Orr, one of said clergymen, received deposits, in 1870, from the plaintiff in pursuance of said system, which deposits the defendant and the plaintiff regarded as forming part of the indebtedness of said Church of the Immaculate Conception, and which were entered upon said book, the same being issued to the plaintiff on January 1, 1870, by Orr, and that Orr announced from the pulpit of said church, prior to 1873, to the congregation thereof, of which the plaintiff was a member, that such deposits would be received, and that the same would be done by permission of the defendant.</p> <p>The plaintiff further testified, on cross-examination, that, when she made the deposits with Or, she expected the bishop of Boston would be liable for the money, and deposited $300 after said announcement; that she remembered no conversation with the said clergymen as to the liability or responsibility of the defendant ; that she saw and read the conditions of deposits on both her books, and assented to the same; that.she understood the money so deposited was for the use of said church, and no other church; that she never looked to the defendant for payment of this claim until said Augustinians were in financial trouble in 1883 ; that Orr did not in his said announcement in church say that the defendant would be responsible for such deposits; that she knew from what she heard and read that said church and asylum had been transferred by the defendant to said Augustinians, in 1877; that she deposited $30 with said Augustinians, after such transfer, which deposit was indorsed on said book; that said indorsement of interest in 1878 was made by one of said order, and accepted by her; that she filed a claim against the Augustinian Society, the same being a corporation under the laws of Massachusetts, in 1883, when proceedings in insolvency were pending against them in the Court of Insolvency for said county; that she originally brought this suit against said corporation, and this defendant; but had since discontinued as against said corporation, and that this suit was brought before said proceedings in insolvency were commenced.</p> <p>The defendant then put in evidence the power of attorney, duly recorded, from Fitzpatrick to said Healy, under which the said conveyances were made to the defendant, in which power of attorney it was expressed that said Fitzpatrick held the property “for ecclesiastical purposes,” and that said Healy was authorized to convey the same to the defendant to hold for the same purposes.</p> <p>The defendant testified, on cross-examination, that under the canon law and the decrees of the plenary council of the Catholic Church holden at Baltimore in 1866, he held the Church of the Immaculate Conception in Lawrence, until he conveyed the same to said Augustinians, in trust for the Catholic congregation of said church for ecclesiastical purposes and public worship in the Roman Catholic form, though apparently by an absolute title of record; that he could not convey or dispose of the same for his own personal benefit, or apply the money arising from the sale of the same to his personal use; that the money deposited by the plaintiff had all been deposited for the use of said church, and that none of the same had been used or received by the defendant; that the system of receiving deposits was in practice before and at the time when he became bishop; that the clergyman in charge of a church for the time being had charge of all its temporalities; that he had never authorized said money to be borrowed on his personal credit, or acknowledged that the same was so borrowed, or agreed to be responsible for the same, and that his only control over the clergy of the diocese was by ecclesiastical discipline, and that he could not remove them from their parishes except for cause, and by ecclesiastical discipline.</p> <p>The defendant further testified, on cross-examination, that in ■ some of the deposit-books issued by the clergyman preceding said Orr, who was placed in charge of said church in 1869, there was something said about such deposits being a lien on said church, or something of that kind; that he did not know that Orr in 1870 called in the deposit-books and substituted new ones therefor; that he did not remember any conversation with said Orr about said deposits; that it belonged to the pastor in charge of such church to make all contracts relating to the temporal affairs of the same, and that they- were not his agents or servants in such matters under the canon law; that he had never received a cent of said deposit; and that, though not so expressed in writing, he conveyed said church and asylum to said Augustinians upon the agreement that they should assume and pay the debt thereof, including said deposits, and that said church had been held and used since 1866 for purposes of public worship. In all of this evidence the defendant was uncontradicted. The defendant testified, on re-direct examination, that the question of his responsibility for deposits was never discussed one way or the other.</p> <p>Orr testified that, in receiving deposits, he had never expressly pledged the credit of the defendant, or stated that the defendant was liable or responsible, and that parties depositing were always informed upon just what conditions their deposits were received.</p> <p>Daniel D. Reagan, a member of said order, testified that the Angustinians continued to receive deposits after the conveyance from the defendant to them; that the Augustinian Society never pledged or had any power to pledge the credit of the defendant, and that they assumed the whole indebtedness of the Church of the Immaculate Conception, at the time the same was conveyed to them by the defendant, and that said corporation was not subject to the control of the defendant.</p> <p>At the close of the evidence, the plaintiff waived her claim to recover said sum of $80 in this action.</p> <p>Upon the foregoing testimony, the same being all the evidence material to the questions raised and the instructions prayed for thereon, the plaintiff contended that the defendant was liable as the principal for whom the money in suit had been borrowed by his agents.</p> <p>The defendant, among other requests for instructions which need not now be stated, asked the judge to instruct the jury that, upon said -evidence, the plaintiff had shown no case against the defendant, and that they must return a verdict for the defendant. The judge refused so to instruct the jury; but did instruct them, that, if the defendant borrowed the money by his agents and put the same into real estate, it was immaterial whether the said real estate was held by the defendant in trust, or absolutely in his individual capacity.</p> <p>The judge also instructed the jury, that agency could not be established by the declarations of one claiming to be an agent, and gave full instructions upon the law of agency and the other questions arising in the case, to which no objections were made, except as herein expressed.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in November, 1884, and was reargued in November, 1885.</p>

<p>A bill in equity, to restrain the maintenance of a dam, whereby the water of a great pond may be raised above its natural level at high water, and of a sluice-way, whereby the water may be drawn off below its natural level at low water, may be maintained by a person suffering special and peculiar damage therefrom; and a person whose land is flowed by means of such a dam, or whose land is cut off from the pond, when the water is lowered, by reason of a strip of land belonging to the State intervening between his land and the water, suffers special damage within this rule.</p> <p>A bill in equity was brought to restrain the maintenance of a dam, whereby the water of a great pond was raised above its natural level at high water, and of a sluiceway, whereby the water was drawn off below its natural level at low water; but contained no prayer for damages. The plaintiff did not ask for damages, at the hearing before the master to whom the case was referred, until after the first draft of the master’s report showed that the amount of damages had not been passed upon by him. The evidence before the master showed damage to the plaintiff, but it was not directed to the amount of damages with reference to a finding upon it; and the amount found by the master was a small sum in gross, which appeared to include matter not the subject of special damages. Held, that the decree should be confined to the relief prayed for; and that the plaintiff must resort to an action at law for redress in damages.</p>

<p>Mortgaged land was permanently injured by water which escaped from a reservoir in consequence of the giving way of a dam built by a city under legislative authority. After the mortgagee had brought an action against the city, which denied its liability, the amount of damages to the land was submitted to arbitration, under an agreement that the city should pay two thirds only of the amount found by the arbitrators. The city paid to the mortgagee two thirds of sucii amount, and received a discharge in full from him. Held, that this settlement, if made in good faith, was a bar to an action by the mortgagor against the city for the damage to the land.</p>

Contract to recover the amount of a draft drawn by the plaintiff, doing business as Leon Weil and Company at Philadelphia, Pennsylvania, March 18, 1879, at four months, upon the defendant, at Pawtucket, Rhode Island, and there accepted by him.

<p>An account between A. and B. in the handwriting of A., containing the item, “ B. Dr. To house lot,” and stating the amount, but not otherwise signed by A., is not a sufficient memorandum in writing signed by him, within the statute of frauds, Pub. Sts. c. 78, § 1.</p> <p>The occupation of, and the making of repairs and improvements upon, premises agreed orally to be conveyed, do not, of themselves, prevent the statute of frauds, Pub. Sts. c. 78, § 1, cl. 4, being a good defence to a bill in equity for specific performance of the contract; but, to have that efiect, such occupation and expenditures must have been induced by the contract, and in reliance upon its performance, and such that adequate compensation cannot be made for them by the defendant except by the conveyance of the premises, so that it will be fraudulent in him to withhold a conveyance, and estop him from setting up the statute against the plaintiff's demand for a deed.</p> <p>A. agreed orally to convey to B. a parcel of land and a house for $700, $10 to be paid each month, and annual interest on the balance until all should be paid, and B. was to make necessary repairs on the house and pay the taxes. B. went into possession, and continued the occupation without interruption for ten years, and during that time spent about $100 in repairs on the house, and set out a few fruit trees and vines, and cleared ofi bushes, and improved a small piece of land, at slight expense. B. had also paid to A., besides the taxes and the $100 above mentioned, about §550 on the contract debt, $400 of which was for interest, and the rest on the principal; and the use of the premises, a reasonable rent for which was $7 a month, was worth over §850. A. then went upon the premises with a surveyor for the purpose of surveying them, and a disagreement arose between the parties as to the lines of the land agreed upon. B. then told A. that he would have nothing more to do with the place, and all he wanted was that A. should pay him what he owed him; and A. told him he would do so whenever B. would leave the house. After the survey was completed, B. expressed himself, but not to A., as satisfied with the lines run, and afterwards built a fence at a cost of $25. B. made no further payment, and there was no further communication between the parties, B. continuing to occupy the premises for eight months longer, when A. entered and constructed a road through them. B. then objected to the making of the road, and demanded a deed, but made no tender of payment. About eleven months afterwards, A. tendered to B. the amount he had paid on the contract above the interest, and requested him to quit the premises. Held, that these facts did not show such a part performance of the contract by B. as to entitle him to a decree for specific performance, on a bill in equity brought by him against A.</p>

<p>A., being seised in fee of a parcel of land containing twenty-five acres, on which there were two dwelling-houses, one of whicli had been assigned to his father’s widow as her dower, conveyed one undivided half of the dower estate to B. Subsequently the guardian of A. presented to the Probate Court a petition setting fortli that it was necessary to sell some part of a certain piece of land containing about twenty-five acres, with two dwelling-houses and other buildings thereon, one of the houses being occupied by the widow (naming her) as her dower, and that the ward was seised of one half of what she holds, and praying for a license to sell the whole estate of the ward. Upon this petition, license was granted to sell “ the whole of the real estate of said ward.” The deed of the guardian conveyed all the land, with a dwelling-house, barn) and other out-buildings thereon, “ reserving the house occupied by ” the widow, “ with the privilege for the owners of said house to use the yard around said house equally with said grantee, also the privilege in the yard front of the barn, also reserving the shed with the land under it on the easterly end of the barn.” The shed was not on the land set off to the widow as dower, though it was occupied by her. The notice of sale stated that the land contained about twenty-five acres, with a house, barn, and other out-buildings. Held, that A.’s undivided interest in the reversion of the dower estate did not pass by the guardian’s deed.</p>

Contract to recover $800, alleged to be due the plaintiff for salary as city solicitor of Lawrence for the year 1884.

Appeal, by the administrator of the estate of Thomas L. Randlett, from a decree of the Probate Court allowing $1500 to Louisa E. Randlett, as the widow of the intestate, upon her petition for an allowance out of the estate of her deceased husband, under the Pub. Sts. c. 135, § 2.

<p>Bill in equity, by the trustees under the will of Charles H. Fabens, to obtain the instructions of the court as to the construction of the will.</p> <p>The bill alleged that the testator died in 1869, leaving a widow, Marie Euphrasie Fabens, and four children, Charles Eugene Fabens, Leonide Euphrasie Fabens, and the plaintiffs, Benjamin H. Fabens and Auguste Jerome Fabens; and that he left a will, executed on June 6, 1867, which was duly admitted to probate, and which was as follows:</p> <p>“ I give my house in Chestnut Street, with the land belonging to it and all my household furniture, to my wife, to have and hold for her lifetime; after her death it is to go in with all my other property as hereafter mentioned.</p> <p>“ I appoint as executors and also as trustees Mr. Joseph Hardy Towne and my sons Charles Eugene Fabens and Benjamin Henry Fabens, with the wish that Mr. Towne shall be the leading man of the three.</p> <p>“ Of all my other property, either in money, stocks, bonds, goods, vessels, real estate, or whatever it may be, is to be reserved in trust for the heirs of my children, my wife and my children to have the income of it, as follows : as fast as the children become of age they will be entitled to their portion of the income, the income to be divided into as many parts as there are heirs, counting my wife as one, (thus to-day there would be five heirs, my wife and four children,) and until my younger children become of age my wife to have their portion in consideration of paying all their expenses, but after being of age and receiving their portion, should they live with their mother, they must pay their portion of expenses, as their mother will not have sufficient for the whole expenses.</p> <p>“ I wish to give my brother Benjamin Fabens five thousand dollars, to be taken out of the money for my life insurance, as he has been very faithful in all his business connections with me, and he will probably be some time without business, but I expect him to aid and assist with his advice about closing my business; this to be paid in six months or before. All property that is not invested the trustees can invest as they think proper, and can also sell and reinvest any of the property, stocks, real estate, or any other.”</p> <p>A codicil to the will, dated December 17,1868, was as follows: “ Should there be any vacancy among the number of executors and trustees named in my will, I wish my beloved wife Marie Euphrasie Fabens should be appointed to fill the vacancy, and also I wish my son Auguste Jerome Fabens on his becoming of age to also be appointed executor and trustee, and I wish that my executors and trustees may be exempt from giving sureties on their official bonds.”</p> <p>The bill further alleged the following facts:</p> <p>Charles Eugene Fabens died on January 22, 1885, intestate, leaving a widow, Bessie H. Fabens, who has been appointed administratrix of his estate and guardian of his three minor children, Marie Euphrasie, Bessie Dyer, and Eugene Jerome.</p> <p>The widow and the other three children of the testator are all living. The children of the testator are all of full age, and Leonide Euphrasie is unmarried.</p> <p>The plaintiffs hold the residue of the testator’s estate, consisting wholly of personal property, and are ready to execute the trusts of his will; but by the death of Charles Eugene Fabens conflicting claims have arisen.</p> <p>Bessie H. Fabens contends that it is the duty of the plaintiffs to pay over to her, as administratrix of the estate of Charles Eugene Fabens, one fifth of the entire residue in their hands.</p> <p>The widow of the testator and Leonide Euphrasie contend that, so long as the widow or any of the children of the testator are living, the trust fund is to be kept together, and only the income thereof paid over to the widow and to the children or representatives of deceased children of the testator; and that Charles Eugene’s share of the income only is to be paid over to those entitled in remainder after his death, and the principal is to remain in trust.</p> <p>The questions raised by the bill are as follows:</p> <p>First. Whether, upon the death of said Charles Eugene, his share of the principal of said trust fund is payable to those who may be entitled in remainder, or whether the trust fund is to be kept undistributed until the death of the widow and of all the children of the testator.</p> <p>Second. Whether, if said share of principal be now sever-able and payable, it is payable to the administratrix, or to the minor children, or to the widow and children of said Charles Eugene Fabens.</p> <p>Third. Whether, if the trust fund is not divisible until after the death of the widow and all the children of the testator, the income thereof belonging to said Charles Eugene’s share is payable to his administratrix, or to his children, or to his widow and children in equal shares.</p> <p>The case was heard by W. Allen, J., and reserved for the consideration of the full court.</p>

<p>Writ of entry, dated July 31, 1884, to recover a parcel of land in Lawrence. Plea, nul disseisin. Trial in the Superior Court, before Q-ardner, J., who reported the case for the determination of this court, in substance as follows;</p> <p>The demandant claims title to the premises by descent, as next of kin and heir at law of Annie J. Rafferty. One Hugh Rafferty, at the time of his death in 1873, was seised in fee simple and possessed of said premises. He left a will, which was duly proved and allowed, the material part of which is as follows:</p> <p>“ Item 12th. I give, bequeath, and devise all the remainder of my property, real, personal, and mixed, of which I shall die seised and possessed, or to which I shall be entitled to at the time of my decease, to my said executors, Patrick Sweeney and Thomas H. Conway, to hold in trust, to use so much of the income thereof as shall be needed to give to my daughter, Annie J. Rafferty, a good and suitable support so long as she shall live; also if she shall ever have a child or children, my said executors shall support them in a proper manner from said income or property during the life of each and all; the balance of said income and the property after the death of my said child, and her child or children (if any), shall all be paid over by my said executors, for the sole use and benefit of the Augustinian Society of Lawrence, a body corporate duly established by the laws of this Commonwealth, in the year of our Lord eighteen hundred and seventy, to said corporation forever.”</p> <p>At the time of Hugh Rafferty’s death, his sole heir and next of kin was his daughter, Annie J. Rafferty, named in said will. She died at Lawrence in 1879, intestate, unmarried, and without issue. The demandant is her heir, being the sister of said Hugh Rafferty. ,</p> <p>The tenant is in possession of said preihises, claiming title in fee thereto under a deed from the Augustinian Society named in said will, to whom said trustees conveyed the same after the death of Annie J. Rafferty.</p> <p>Upon the foregoing facts, the judge ruled that the demandant could not maintain her action.</p> <p>If the ruling was erroneous, a new trial was to be had; otherwise, judgment to be entered for the tenant.</p>

Contract. The declaration alleged that the plaintiff was induced to subscribe for an interest in a certain mine by the promise of the defendants to verify certain written reports as to the condition and quality of the mine, shown to him by them, before asking him for payment of his subscription; that the defendants subsequently represented to the plaintiff that they had fully verified said reports, and, relying upon that statement, the plaintiff paid to the defendants the…

<p>Two actions, one brought by A. against B., and the other by B. against A., and which were pending at the same time, were included in one settlement by the parties, by which A. paid to B. the difference between a portion of the sum sued for by B. and the amount sought to be recovered by A.; and judgment was entered for B. in the action against him. Held, that B. could not maintain an action against A. for malicious prosecution in instituting that action.</p>

<p>Before the St. of 1858, c. 414, § 4, imposing a penalty on any person who, without right, knowingly stands or walks on any railroad track, a private right of way across the location of a railroad could be acquired by prescription.</p> <p>If the instructions given at the trial of a case are correct in themselves, it is no ground of exception that they are not sufficiently-full, if the excepting party did not ask for more specific instructions.</p>

<p>If a writ of error to reverse a domestic judgment rendered in an action is open to the defendant in such action, he cannot set up, in defence to an action on the judgment, that the court had no jurisdiction of the original action because there wag no proper service of the writ therein.</p>

<p>Bill of interpleader, against Elizabeth H. Pingrey and Cara L. Pingrey, to determine the respective rights of the defendants under two policies of insurance issued by the plaintiff. The case was heard by W. Allen, J., and reported for the consideration of the full court, in substance as follows:</p> <p>The plaintiff, on May 25, 1874, issued its policy of insurance upon the life of Franklin A. Pingrey, on his application, he at that time being twenty-one years of age, containing the following clauses:</p> <p>“As soon as the premiums paid, together with such other sums as he may choose to pay, improved annually at the average rate of interest received by the company after deducting pro rata expenses and losses, shall amount to the sum insured, the company agrees to pay to Franklin A. Pingrey the amount of three thousand dollars.</p> <p>“ In case of prior death, the said company do hereby promise to and agree with the assured, his executors, administrators, and assigns, well and truly to pay at their office the said sum insured to his mother, Elizabeth H. Pingrey, within ninety days after due notice and proof of the death of the said Franklin A. Pingrey, during the continuance and before the termination of this policy.”</p> <p>On January 25, 1882, Franklin A. Pingrey surrendered said policy to the plaintiff, who, at his request, issued to him another policy, containing similar provisions to those set forth above, except that this policy was payable to Cara L. Pingrey, the wife of said Franklin A., instead of to said Elizabeth H.</p> <p>No new application for insurance was made by Franklin A. Pingrey, but, upon the surrender of the first policy for cancellation, the second policy was issued, with the following indorsement upon it: “ Original Pol. No. 9372 was issued May 25,1874, of which this is a continuation and is entitled to all its benefits.” Elizabeth H. Pingrey never consented fo the surrender of the first policy.</p> <p>All the premiums on both policies were paid by Franklin A. Pingrey, the assured, when they came due, his mother, said Elizabeth EL Pingrey, and his sister together furnishing him with all, or nearly all, the money necessary to pay the first premium on the first policy; but it did not appear how much of the money for said premium was furnished by his mother and how much by his sister. It did not appear that any other sums besides the premiums were paid upon either of said policies.</p> <p>Some time after taking out the first policy, Franklin A. informed his mother that he had taken it out, but she never saw it until about two years after the time of its issue, when one day he took it from the box where he had always kept it, as he was putting away other papers, and, holding it up, folded, told her that it was the policy; she never read the policy or knew its provisions, except that she understood from her son that he had taken out a policy for her benefit.</p> <p>The insured always kept possession of said original policy un-' til he surrendered it to the company to be cancelled as aforesaid, and he never delivered it to his mother.</p> <p>On February 26, 1880, the assured married Cara L. Pingrey, and, on September 30, 1882, he died without issue.</p> <p>At the time when the first policy was applied for, the assured, being then just twenty-one years of age, was living at home with his father and mother, with whom he had lived" up to that time, and continued to live until his death, the family at that time consisting of his father, mother, sister, and himself. His father was an invalid, and so continued until his death, which was after the death of the assured, and the household expenses were paid principally by his mother, who took boarders. The assured paid no board before May, 1876; from that time until October, 1880, he paid three dollars per week to his mother; and after October, 1880, until his death, he paid her eight dollars per week. -</p> <p>From the time of his marriage, on February 26, 1880, until his death, his wife lived with him and his parents, assisted in the affairs of the house, and lived as One of the family.</p> <p>The first policy was obtained, after consultation between the assured and the other members of the family, with the intention of giving his mother the benefit thereof, he at that time being unmarried.</p>

<p>Tokt for breaking and entering the plaintiff’s close in Billerica, and pulling down and removing a fence thereon. Trial in the Superior Court, without a jury, before Knowlton, J., who allowed a bill of exceptions, in substance as follows :</p> <p>In 1842, Francis Richardson owned a tract of land, which was bounded easterly by the Concord road and westerly by the Concord River. A lane about twenty-five feet wide, bounded on each side by a stone wall with bar-ways at intervals opening into the adjacent fields, extended through it from the road to a point near the river. The entrance to the lane at the road was closed by a gate. On April 12, in that year, Richardson conveyed that portion of said tract lying northerly of the northerly side of said lane by a deed which contained, immediately after the description, the following words: “ with a privilege for him, his heirs and assigns, to use the lane on the south side of said premises to drive his cattle to pasture and his teams for the convenient occupation of said premises.” The defendant has acquired the land and rights conveyed by said deed.</p> <p>A part of the land retained by said Richardson passed to the plaintiff, and the remainder to the plaintiff’s brother; said brother owning the field nearest the road, with that part of the lane upon which it abutted, and the plaintiff the remainder, consisting of several fields and that part of the lane upon which they abutted, lying farther westerly and extending to the river. The plaintiff occupied his brother’s land, under a lease, until May, 1883, when it was sold to the defendant. There was conflicting evidence as to how much the plaintiff’s fields had been used for pasturing in former years, and to what extent cattle had been, permitted to pass from them at will into the lane, and the judge found that no such use was shown as to change the rights of either party under the deed. The defendant’s barn and cow-yard were on the northerly side of said lane, near the road, and he entered the lane therefrom through gates. He used the lane in conveying his manure, hay, and vegetables to and from his fields, and drove his cattle through it to and from pasture.</p> <p>On May 30,1883, the plaintiff put up on his own land, near the line of that bought by the defendant of the plaintiff’s brother, a fence across the lane, with a gate in it twelve feet wide. On the next day the defendant pulled it down and removed it. The plaintiff claimed the right to erect and maintain this fence and gate, to prevent his cattle from escaping into the land sold by his brother to the defendant whenever he wished to use his portion of the lane for pasturing, and whenever his cattle got into the lane through said bar-ways on the plaintiff’s fields.</p> <p>The gate could be readily opened or closed, and when opened it left sufficient space for the passage of teams or cattle, but the necessity of opening and closing it materially interfered with the convenience of the defendant in using the lane.</p> <p>The judge ruled that the erection of the fence and gate was an invasion of the right of the defendant to use the lane in connection with the land conveyed by the deed of April 12, 1842, and found for the defendant. The plaintiff alleged exceptions.</p>

Contract by a member of the defendant society, to recover $20, alleged to be due the plaintiff according to the by-laws of the society.

Complaint, on the Pub. Sts. c. 102, § 112, to the District Court of East Norfolk, alleging that the defendant, at Holbrook, on October 15, 1884, and on divers other days and times between that day and March 12,1885, “ not being then and there first duly licensed according to law, for hire, gain, and reward did unlawfully keep and suffer to be kept in a certain building there situate, and by him .... then and there actually owned, a certain billiard table, for the purpose of…

<p>Indictment in three eonnts. The second count alleged that the defendant, on January 8,1884, at Watertown, “ with intent to cheat and defraud one Charles H. Kidder, and with the view and intent to effect the sale and delivery hereinafter mentioned, did then and there unlawfully, knowingly, and designedly falsely pretend and represent to said Charles H. Kidder that he, the said William M. Devlin, had then authority to draw a certain check and order for the payment of money, to wit, a check and order for the payment of money for the sum of four hundred and eighty-five dollars and ten cents upon the Howard National Bank of Boston in the county of Suffolk and in said Common- . wealth; and that a sum of four hundred and eighty-five dollars and ten cents, belonging to him the said William M. Devlin, was then in the possession of the said Howard National Bank, and that a sum of four hundred and eighty-five dollars and ten cents was then payable and could be paid by the said Howard National Bank on the credit and on the account of the said William M. Devlin, as soon as a check and order for the payment of the same, signed by the said William M. Devlin, authorizing the said Howard National Bank to make such payment, should be presented at the place of business of the said Howard National Bank, at Boston in the said county of Suffolk; and that a certain check and order for the payment of money, purporting to be drawn by the said William M. Devlin on said Howard National Bank, which he the said Devlin then and there had and produced to the said Charles H. Kidder, and which was of the tenor following, that is to say, — ‘ $485.10. Boston, Jan. 8,1884. The Howard National Bank of Boston, Howard Bank Building, No. 19 Congress Street. Pay to C. H. Kidder or order four hundred and eighty-five dollars. Wm. M. Devlin,’ — was then and there a good available check and order for the payment of money for the sum of four hundred and eighty-five dollars and ten cents, and was then and there of the value of four hundred and eighty-five dollars and ten cents; and that he the said William M. Devlin then and there had money in the hands of the said Howard National Bank for the payment of the said check and order for the payment of money; and that he the said William M. Devlin had then and there full power, right, and authority to draw said check and order for the payment of money upon said Howard National Bank for said sum of four hundred and eighty-five dollars and ten cents. And the said Charles H. Kidder, then and there believing the said false pretences and representations so made as aforesaid by him, the said William M. Devlin, and being deceived thereby, was induced, by reason of the false pretences and representations so made as aforesaid, to sell and deliver, and did then and there sell and deliver, to the said William M. Devlin, and accept in payment therefor said check and order for the payment of money, then and there delivered by the said William M. Devlin to the said Charles H. Kidder in payment for the same, one hundred and nineteen sheep, each of the value of four dollars and twenty-five cents, of the proper goods, effects, and personal property of the said Charles H. Kidder. And the said William M. Devlin did then and there receive and obtain the said goods, personal property, and effects of the said Charles H. Kidder by means of the false pretences and representations aforesaid, and with intent to cheat and defraud the said Charles H. Kidder of the same goods, personal property, and effects. Whereas in truth and in fact the said William M. Devlin had not then and there any power, right, or authority to draw said check and order for the payment of money upon said Howard National Bank of Boston. And whereas in truth and in fact the said William M. Devlin had not then in the possession of the said Howard National Bank of Boston the sum of four hundred and eighty-five dollars and ten cents belonging to him the said William M. Devlin. And whereas in truth and in fact a sum of four hundred and eighty-five dollars and ten cents was not then payable by the said Howard National Bank on the credit and on the account of the said William M. Devlin. And whereas in truth and in fact the said check and order for the payment of money was not then and there a good and available order for the payment of the sum of four hundred and eighty-five dollars and ten cents, and was not then and there of the value of four hundred and eighty-five dollars and ten cents.. And whereas in truth and in fact the said William M. Devlin had not then the money in the hands of the said Howard National Bank for the payment of the said check. And whereas in truth and in fact the said William M. Devlin did not then and there have any right, power, or authority to draw said check and order for the payment of money upon said Howard National Bank for said sum of four hundred and eighty-five dollars and ten cents, as he then and there well knew. And so the jurors aforesaid upon their oath aforesaid do say that the said William M. Devlin, by means of the false pretences aforesaid, on the said eighth day of January in the year of our Lord one thousand eight hundred and eighty-four, at Watertown aforesaid, unlawfully, knowingly, and designedly did receive and obtain from said Charles H. Kidder the said goods, personal property, and effects of the said Charles H. Kidder with intent to defraud. Against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided.” 1</p> <p>The third count differed from the second in these particulars only: the name of the person alleged to be defrauded was DeWitt C. Blanchard; the amount of the check was $338.60, payable to the order of said Blanchard; and the number of sheep was ninety-eight.</p> <p>Before the jury were empanelled, the defendant filed three motions to quash the indictment. The first motion assigned the following reasons:</p> <p>“ 1. Because, as alleged, it does not appear what the bargain and sale was, or that the defendant in consequence of such bargain and sale, if any such is sufficiently set out, received said goods from the complainant. 2. It is not properly alleged that the defendant, at the time he made the alleged pretences, knew that they were false; that is, no proper scienter is alleged.”</p> <p>The reasons assigned in the second and third motions, so far as they were afterwards insisted upon, were as follows:</p> <p>“ It is not alleged in any of said counts that Kidder or Blanchard received said check.”</p> <p>“ In none of said counts is it alleged that said defendant received said goods from said complainants.”</p> <p>These motions were overruled.</p> <p>At the trial in the Superior Court, before Pitman, J., Charles H. Kidder, a witness for the government, testified, in substance, as follows: I saw Devlin on the morning of January 8, 1884, and he looked at my sheep in one building and at Blanchard’s sheep in another building, at my request, and one third of the gain or loss on the sale of them was to be mine. Devlin made an offer of five and a quarter cents per pound for my sheep, and four and three quarters cents per pound for Blanchard’s lot. I told Devlin I would sell him both lots at the same time, if Blanchard was willing. I then sent for Blanchard and told him in a private interview with him, within eight or ten feet of Devlin, in a low tone of voice, what Devlin’s offer was for his, Blanchard’s, sheep (Blanchard having nothing to do with my sheep). Blanchard said, if he would not pay any more, to let him have them if he would pay the money for them. Devlin spoke up and said he would pay for them and had plenty of money to do so; I then sold both lots together. I did all the trading, and Blanchard assented to it; nothing else was said. In about an hour after that, it might have been longer or shorter, I had both lots of sheep weighed off to the defendant, driving them on to the scales for that purpose in the weighing-house, and they were so recorded to the defendant by the weigher in his book kept for that purpose. At the request of myself or Blanchard, and after they were so weighed, they were driven back to the same yards, although it is just as customary to put them in different yards, just as it is directed or requested by the buyer, and I cannot say whether Devlin assisted in driving the sheep or not; about an hour or so after the weighing off as aforesaid, Blanchard, Devlin, and I went into the cattle-weighing building on the opposite side of the street to settle up. In the mean time no bill had been made out for the sheep, nor their weights reckoned up; then we reckoned up the amount, and Devlin took out his check-book to give a check. I told him I did not want a check, using an oath, but I wanted the money. Devlin said he had the money, but did not carry it around with him; that he had plenty in the bank; said the check was good; therefore I took the check, being induced to do so by these representations, and nothing further was said about the sheep, and nothing further was done about them. Then I went to Boston to the bank and presented the check; they threw it back, and did not pay it, and it has never been paid. I then returned to Watertown to find Devlin, and looked for the sheep; I found neither; never saw the sheep after this. I next received notice to meet Devlin’s creditors on the following Tuesday, and went to the office of his attorneys, where an offer of settlement on a percentage was made, which was not accepted.</p> <p>DeWitt C. Blanchard, in behalf of the government, testified, in substance, that the bargain and sale of the lot of sheep in which Kidder was to share one third of the gain or loss on the sale of the same, was made by Kidder as Kidder stated in his testimony; that the sheep were weighed off by Kidder to Devlin as stated by Kidder, and all the conversation with regard to the check was had by Kidder with Devlin as testified to by him; that when the bargain and sale was made by Kidder of this lot with Devlin, his assent was given to the sale if Devlin would pay the money, and Devlin said he had money; that he did not know just how he said this ; that Devlin gave him two checks; that all the conversation with regard to the checks, as well as with regard to the weighing off the sheep and the sale of them, was had by Kidder with Devlin ; that nothing further was said or done about the sheep, after they were weighed off and put in the yards, and that he was induced to take the checks by reason of representations made by Devlin to Kidder that he had the money in the bank, and that they were good.</p> <p>The government relied upon the statement and false pretence that Devlin said “he had plenty of money to pay with.”</p> <p>There was other evidence tending to confirm what Blanchard and Kidder said, and also that there was not sufficient money in the bank to meet the checks.</p> <p>There was evidence by several witnesses on behalf of the defendant, tending to show that Kidder had admitted that there were no representations or statements made, as to how or when the goods were to be paid for, until after the sale and delivery of them, and that the sale and delivery had taken place before any checks were spoken of or given, or any representations with regard to checks were made, — which was denied by Kidder.</p> <p>There was also much evidence in behalf of the defendant tending to show that there was a custom or usage well defined, uniform, universal, and of long continuance, that, the bargain of sale having been made between the seller and buyer, the driving of the sheep on to the scales by the seller and weighing them off to the buyer, and having them recorded in the weigher’s book to the buyer and then driven off, whether to the same yard from which they were taken or not, constitutes a delivery. Witnesses for the government testified that they knew of no such custom.</p> <p>There was also evidence that the defendant had a promissory note for f2500 in the hands of one Goodnough’, one of the directors of the Union Market Bank at Watertown, for discount at this time, which had been in his hands for some days, and he promised the defendant to have it discounted; that the defendant spoke to Goodnough on the day or evening of January 7, 1884, about the discount of said note, and Goodnough gave him encouragement that it would be discounted, though he never spoke to the other directors of the bank about it; and that the defendant expected to get this money.</p> <p>There was further evidence that the defendant had been accustomed to borrow a great deal of money of one Donnelly, from time to time, on a credit of a few days, and then repaying the same; that between January 1 and 8, 1884, Donnelly agreed and promised the defendant to let him have between five and six thousand dollars on January 8j 1884, and on the latter day the defendant called upon Donnelly between eleven and twelve o’clock for the money to put in the bank, and he refused to let him have it because he said he had heard that his checks had gone to protest. Kidder and Blanchard testified that their checks were given about or a little before ten o’clock A. M.</p> <p>Upon the foregoing evidence, the defendant presented to the judge forty-one requests for instructions, which, in view of the opinion, it seems unnecessary to state. The judge refused to rule as requested, but instructed the jury on the points covered by defendant’s requests as follows, after reading the statute on which the indictment was found :</p> <p>“ The government must bring its case within the statute, and must prove every element and fact necessary to establish a case under the statute, as in other criminal cases, beyond a reasonable doubt. The government must prove this charge, and not something else; and a mere intention to obtain the property without paying for it, or otherwise to cheat and defraud the owners, would not authorize the conviction of the defendant. The government must satisfy the jury:</p> <p>“ 1. That some of the pretences of an existing fact alleged in the indictment were made by the defendant.</p> <p>“ 2. That they were made designedly, and with an intent to defraud.</p> <p>“ 3. That such pretence or pretences were false.</p> <p>“ 4. That the property was obtained by means of such false pretences, that is, that but for stich pretences the owner would not have parted with his property.</p> <p>“ The defendant contends that he has proved a delivery of the property, according to a custom, before the pretences were made which are relied on, and that therefore the property was not obtained by the defendant through such pretences. His contention that such custom may be established by a preponderance of evidence is correct in law, and, if established as he claims, would affect the owner with knowledge of it; but the jury will consider that a delivery may be an absolute or a conditional delivery, and the law is this: that, if the sale to the defendant was a sale for cash, then it was a conditional sale, and vested no title in the purchaser until payment. A mere constructive, or even a manual delivery, would not in such a case deprive the owner of his property. In order to have such an effect, the delivery must be absolute, under such circumstances as to show a waiver of such condition of sale.”</p> <p>The jury returned a verdict of guilty on the second and third counts, and of not guilty on the first count. The defendant alleged exceptions.</p>

<p>Petition to the Probate Court, under the Pub. Sts. e. 14T, § 33, alleging that the petitioner was the wife of William S. Blackinton of Attleborough, but commorant in the city of New York, in the State of New York; that her husband failed, without just cause, to furnish suitable support for her, and had deserted her; that the petitioner, for justifiable cause, was actually living apart from her said husband; and that there had been born to them one child, Effie M. Blackinton; 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 until the further order of the court, and would make an order for the support of herself, and the care, custody, and maintenance of her minor child.</p> <p>On this petition, the court ordered that the petitioner give notice to William S. Blackinton to appear at a Probate Court to be holden at New Bedford, in the county of Bristol, on the first Friday of August, 1884, at ten o’clock in the forenoon, by delivering to him an attested copy of the petition and this order thereon, fourteen days at least before said court.</p> <p>The return stated that the notice was served as therein required.</p> <p>The respondent appeared specially by attorney, and filed a plea, averring that, at the time of the commencement of the proceedings in the case, he was, and for a long time prior thereto had been, a citizen and resident of the city, county, and State of New York; that he had not at either of said times any residence, or last and usual place of abode, in this Commonwealth, nor any agent or attorney authorized to receive or accept service of any legal process upon him; that in the present case no service was made upon him in this Commonwealth, but the service which was made was made upon him in the city of New York; and that no attachment of any property was made in this case; and praying that the petition and all proceedings thereunder be dismissed for want of jurisdiction.</p> <p>The judge of probate ordered that the petitioner have the custody of her minor child, and that the respondent pay into court the sum of. $40, on account of the costs and expenses of maintaining her suit, and that he pay to the petitioner for and on account of the maintenance of herself and said minor child the sum of $65 for each and every month from and after August 1, 1884, such payments to be made monthly till the further order of the court.</p> <p>From this decree the respondent appealed to this court, assigning the following reasons of appeal:</p> <p>“ The Probate Court had no jurisdiction of the cause, nor of the respondent, and the decree for that reason was and is wholly invalid, null, and void. At the time of the commencement of these proceedings against him, he was, and for many years had been, and ever since has been, and now is, a resident and citizen of the city and State of New York. He had no last or usual place of abode in this Commonwealth, nor any agent or attorney on whom legal service could be made; and no attachment of any property was made in this case. In fact, the notice'in these proceedings was made on him at his office in New York city, and not otherwise. He employed counsel to appear especially for him in said Probate Court, and object to the jurisdiction of said court for the reasons herein stated, and he did so; and he now protests against the jurisdiction of said court and the court appealed to for said recited reasons; and asks that said petition may be dismissed.”</p> <p>Hearing before Field, J., who found the following facts:</p> <p>It was conceded that the respondent married the petitioner in Massachusetts, on October 7, 1868; that both were at the time citizens of Massachusetts, and thereafter they lived in Attleborough, in said State, until December, 1877, when he left her, without cause, and has since resided in New York city, and is an inhabitant and citizen of said State; that there has been born of said marriage one child, who is now eleven years of age; that said petitioner has always resided in said Attleborough since her marriage with the respondent, and now resides there, in a house which he purchased, and the'title of which he procured to be conveyed to her, and in which they both lived together until he went to New York; that the defendant is a member of a firm carrying on a manufacturing business in said Attleborough, but whose principal place of business is in New York, and is the general agent of the firm in said New York city. Notice of the petition was served on the respondent in the city of New York. The appellant did not desire to be heard upon the reasonableness of the amount decreed by the Probate Court, if that court had jurisdiction over him to make the decree.</p> <p>Upon these facts, the judge ordered the decree of the Probate Court to be affirmed; and the respondent appealed to the full court.</p>

<p>Contract for money had and received. Writ dated August 30, 1884. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, in substance as follows:</p> <p>On May 24, 1883, the defendant executed and delivered to the plaintiff a lease, for the term of one year from that date, of premises described as follows: “ The building numbered sixty-three and sixty-five on Endicott Street in Boston.”</p> <p>At the time of the execution of the lease, the defendant was the owner of two adjoining parcels of land, which had been conveyed to him by separate deeds. One parcel was bounded westerly on Endicott Street nineteen feet, and was thirty feet deep, being bounded southerly on Morton Street. The second parcel was immediately in the rear of the first, and was bounded southerly on Morton Street twenty-two feet.</p> <p>Before the conveyance of either parcel to the defendant, there had been erected upon them a brick building, three stories in height, a brick partition wall upon the dividing line between said two parcels extending from the cellar floor to the roof, without door, passageway, or other opening therein. That portion of the edifice to the west of the partition wall was numbered sixty-three and sixty-five in the numbering of the stores and doorways on Endicott Street, the store being numbered sixty-three, and the entrance to the upper part sixty-five, and that portion in the rear to the east of the partition wall was numbered twenty-six Morton Street.</p> <p>In 1880, the defendant removed all of said partition wall on the street floor, except about one foot thereof on each side, and placed an iron girder or beam across the ceiling of the store to support the partition wall above, thus making the entire ground floor into one room. At the same time the defendant broke an opening about five feet in width through the wall in the cellar of said edifice, leaving the sides of the said opening rough and unfinished. All the remainder of said wall is in the same condition it was in before said openings were made.</p> <p>At the same time a stairway to the second floor east of the partition wall was made in the rear and outside of said building, in place of one formerly existing inside. Above said store there is not now, and never has been, any door, passageway, or other opening between that portion of said building to the east, and that to the west, of the partition wall.</p> <p>The foregoing facts in relation to the existence of said partition wall, and the making of said openings therein, were known to the plaintiff before the execution of said lease.</p> <p>The plaintiff entered into, and occupied during the term of said lease, the entire ground floor and cellar of said edifice, and all of the rooms above the ground floor upon the Endicott Street side of said partition wall, but did not occupy the rooms to the east of said partition wall; and the defendant collected from the tenants, they being tenants at will of the defendant at the time of the execution of the lease, in said easterly portion of said edifice, during the term of said lease, the sum of $156 as rent, they never having attorned to the plaintiff. This sum the defendant declined, to pay over to the plaintiff upon demand, contending that the edifice was not one building, but was two buildings, and that the rear rooms above the street floor were not included in said lease.</p> <p>If the court is of the opinion that the rooms above the first floor to the east of the partition wall are included in said lease, judgment is to be entered for the plaintiff for $156; otherwise, for the defendant.</p>

<p>Writ of ENTRY, dated February 6, 1884, to recover a parcel of land in Waltham. The declaration described the land demanded by metes and bounds; and alleged that the demandant was seised of said parcel “ in his demesne as of fee,” and that the tenant had disseised him. Plea, nul disseisin. Trial in the Superior Court, before Brigham, C. J., who reported the case for the determination of this court, in substance as follows:</p> <p>The demandant put in evidence a deed of the demanded premises from Rachel Galbraith to Francis Buttrick, dated June 9, 1876, and recorded June 21, 1876. This deed stated that the premises were conveyed subject to three mortgages held by the Waltham Savings Bank to secure the payment of $4250 and overdue interest, all of which the grantee assumed and agreed to pay. The demandant also put in evidence a deed of the demanded premises from Francis Buttrick to the demandant, dated February 4, 1881, and recorded April 26, 1881, which contained the same statement in regard to the mortgages held by the Waltham Savings Bank which was in the previous deed.</p> <p>The tenant put in evidence a deed of the demanded premises from Rachel Galbraith to the tenant, dated September 5, 1848, but which was not acknowledged until June 4, 1876, and has never been recorded.</p> <p>The evidence tended to prove that, about and before the time when Rachel Galbraith executed and delivered to Francis Buttrick her deed of July 9,1876, both the principal and interest of the debts secured by the mortgages to the Waltham Savings Bank, referred to therein, were overdue and unpaid, and said bank was threatening to sell the demanded premises on account of a breach of the conditions of said mortgages; that thereupon the tenant made an oral agreement with Francis But-trick to give to him Rachel Galbraith’s deed of July 9, 1876, in consideration of Buttrick’s undertaking to pay the interest on the debts due to said bank; that thereupon Rachel Galbraith’s deed of July 9, 1876, was executed and delivered to Buttrick, and he made a further oral agreement with the tenant, that if, within one year thereafterward, the tenant paid to him all of his advances of moneys on Rachel Galbraith’s notes, and all sums paid on account of said mortgages to the bank, and rent of the demanded premises at the rate of $25 per month, he, Buttrick, would reconvey the demanded premises to Rachel Galbraith; that Buttrick paid interest on the debts secured by said mortgages to the bank, and subsequently paid Rachel Galbraith’s promissory notes indorsed by him at the time of receiving Rachel Galbraith’s deed to him; but that neither the tenant nor Rachel Galbraith, up to the time of the sale by auction of the demanded premises to the demandant, and the execution and delivery to him of Buttrick’s deed of April 23,1881, had paid to Buttrick his advances of money, or the rent of the demanded premises, excepting for one month only ; that the tenant had in his possession Rachel Galbraith’s deed to him of September 5, 1848, from that time to the time of the trial of this action, and during all that' time was in possession of the demanded premises; that the demanded premises were sold by auction to the demandant, who was the highest bidder therefor, and thereupon the deed of Buttrick to the demandant of April 23, 1881, was executed and delivered to him; that he afterwards made repairs of buildings and built a building on the demanded premises: and that all the transactions between Rachel Galbraith and Buttrick in relation to the demanded premises, as hereinbefore stated, were conducted with Buttrick by the tenant in his interest.</p> <p>The judge submitted to the jury the following questions only :</p> <p>“ First. Did Rachel Galbraith sign and cause to be delivered to Francis Buttrick the deed purporting to have been made by her on June 9, 1876?</p> <p>“ Second. Had Francis Buttrick, before or at the time of Rachel Galbraith’s deed to him, on June 9, 1876, knowledge of Rachel Galbraith’s deed to John Galbraith of September 5, 1848?”</p> <p>The jury answered the first question in the affirmative, and the second question in the negative.</p> <p>Thereupon the judge ruled that, upon the facts which the evidence tended to prove and the facts found by the jury, the demandant was entitled to a verdict, and directed a verdict accordingly, which the jury returned.</p>

Tort, in two counts, for breaking and entering the plaintiff’s close in Boston. The second count, which only need be mentioned, included in its description the parcel of land marked A B C D on a plan used at the trial. Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court, in substance as follows: The plaintiff now owns the land marked Ridgway on the plan, and the defendants that marked Campbell.

<p>A writ by A. against three persons described them as administrators of the estate of B. The declaration alleged that the defendants, as administrators of the estate of B., owed the plaintiff a certain sum, according to an account annexed. The account annexed began, “ The estate of B. to A., debtor.” At the trial the evidence tended to show that the plaintiff rendered services beneficial to the estate, at the request of one of the defendants, after the death of the intestate, and before the defendants’ appointment as administrators. Held, that the plaintiff was not entitled to a ruling that the words in the writ and declaration designating the defendants as administrators were surplusage.</p>

<p>Comtract against the master of the ship P. 3ST. Blanchard for the wages of the plaintiff as a seaman. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff joined said ship, an American vessel, and signed the shipping articles, in the statutory form, at San Francisco, on March 26,1882 ; he remained on board the ship until December 5,1883, when he was discharged by the defendant, who, pursuant to the United States statutes, signed and delivered to him a certificate of discharge.</p> <p>At the time of the said discharge, the defendant, as provided in the United States statutes, delivered his statement of the plaintiff’s account of wages to the shipping commissioner, and offered to pay the plaintiff at a certain rate of wages, which the plaintiff refused to accept in settlement, demanding his pay as ordinary seaman, $20 a month.</p> <p>In March, 1882, when the plaintiff was employed, the master of the ship was N. W. Blanchard, who signed the shipping articles as such master ; and he, acting for said ship, engaged and hired the plaintiff. From San Francisco the ship sailed to other ports, and finally to Cardiff, Wales. Here Captain Blanchard was taken sick and left the vessel; and on October 12, 1882, the defendant, who was sent from this country by the owners of the ship for that purpose, took command of the vessel at Cardiff and sailed the ship to Hong-Kong, Iloilo, Manila, and Boston, remaining in command until the termination of the voyage at Boston.</p> <p>The defendant asked the judge to instruct the jury as follows: “ 1. The plaintiff cannot recover in this action against the defendant for services on the ship P. 1ST. Blanchard, it being admitted that the defendant was neither the owner nor the master that hired the plaintiff. 2. The temporary master of a vessel is not responsible for the wages of a seaman whom he has not hired, and whom he finds on a vessel of which he takes command in a foreign port, some six months after the seaman was hired.”</p> <p>The judge refused to give these instructions, and ruled that the defendant was liable, under the circumstances, for the plaintiff’s wages that were earned and accrued during the time that the defendant was actually in command of the ship.</p> <p>It appeared in evidence that sundry payments had been made to the plaintiff on account of his wages, both by Captain Blanchard and by the defendant, of which no special application had been made by either. The defendant contended, and asked the judge to rule, that payments made by the defendant should be applied in reduction of the defendant’s liability. All these payments had been made from money of the ship; and the account with the plaintiff, kept by the defendant in the official log-book, was an account with the ship P. N. Blanchard. The payments made by Captain Blanchard were less in amount than the wages that accrued during his command of the vessel. The judge ruled, that, the parties having made no application of the payments, the law would apply all payments so made, either by Blanchard or by the defendant, to the earliest accruing items of the plaintiff’s wages; and that, accordingly, the payments so made by the defendant should be applied to extinguish the balance of the plaintiff’s wages earned during the captaincy of Blanchard, and not satisfied by Blanchard’s payments.</p> <p>The jury found for the plaintiff, for an amount exceeding the amount of his wages earned during the defendant’s captaincy above the payments made by the defendant. The defendant alleged exceptions.</p>

<p>Appeals, by the assignees in insolvency of the defendant corporation, from decrees of the judge of insolvency, allowing the claims of the several plaintiffs. At the trial in the Superior Court, without a jury, before Knowlton, J., it appeared that all the claims were for money paid by the several plaintiffs for shares of special stock of said corporation, the issue of which was declared by this court, in American Tube Works v. Boston Machine Co. 139 Mass. 5, to be invalid. By the terms of the certificates, the stock was redeemable at par after July 1,1885, and was entitled to a fixed half-yearly dividend of three and a half per cent.</p> <p>It further appeared that most of the plaintiffs received their certificates in 1881, and the others received theirs in 1882 and 1883; and that all of them but Butler had received dividends on their stock.</p> <p>There was no offer by any of the plaintiffs to rescind, or to return the certificates of special stock or the dividends received thereon, before the filing of the petition in insolvency by the corporation, which took place on May 12,1883, or before their offer to prove their claims in insolvency; and the only objection made to the allowance of the claims was for this reason.</p> <p>At the time the certificates were delivered and the dividends were paid, both the corporation and the plaintiffs supposed that the stock was legally issued.</p> <p>The plaintiffs were severally allowed to prove for the amount paid by each for stock, without interest, deducting the dividends received.</p> <p>The judge reported the case for the determination of this court.</p>

Bill in equity, by the receivers of the Reading Savings Bank, to obtain the reconveyance of certain mortgages alleged to belong to the bank, and to be in the possession of the defendant. The case was heard by Gfardner, J., and reported for the consideration of the full court, in substance as follows: The Reading Savings Bank was incorporated by the St. of 1869, e. 393.

<p>Contract upon a promissory note for §2167.54, dated November 27, 1878, alleged to be made by the defendants, payable to their own order in four months, and indorsed by them to the plaintiffs. After the former decision, reported 137 Mass. 143, the case was tried in the Superior Court, before Staples, J., who ruled that the plaintiffs were not entitled to recover, and directed a verdict for the defendants; and, at the plaintiffs’ request, reported the case for the determination of this court. If the ruling -was wrong, the verdict was to be set aside, and a new trial granted; otherwise, the verdict was to stand. The facts material to the point decided appear in the opinion.</p>

Tort, by the administratrix of the estate of Jeremiah Mc-Kimble, for causing his death, while a passenger upon the road of the defendant corporation. After the former decision, reported 139 Mass. 542, the case was tried in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows: Jeremiah McKimble took passage on a train of the defendant corporation, leaving Boston at five o’clock in the afternoon of January 10, 1883.

<p>If the plaintiff in an action declares upon an account annexed for work and labor, and offers evidence that his work was reasonably worth a certain sum, and the defendant answers with a general denial, and alleges, and offers evidence, that the work was done under a contract for a certain sum, which has been paid, the burden of proof does not shift, but is on the plaintiff to prove the contract alleged by him, upon all the evidence in the case.</p>

<p>Appeal, by Edward M. Bliss and Carrie F. Ormsby, from a decree of the Probate Court, admitting to probate the will of Elizabeth A. Heywood. The case was submitted, and reserved for the consideration of the full court, upon agreed facts, in substá.nce a.s follows:</p> <p>Elizabeth A. Heywood, being unmarried, and a resident of Indianapolis in the State of Indiana, on January 25, 1882, at said Indianapolis, duly executed the will offered for probate.</p> <p>On the same day, said Elizabeth and Edward M. Bliss, a resident of Worcester, in this Commonwealth, at said Indianapolis, entered into the following agreement:</p> <p>“ This agreement, made and entered into this twenty-fifth day of January, 1882, between Elizabeth A. Heywood, of the city of Indianapolis and State of Indiana, and Edward M. Bliss, of Worcester in the State of Massachusetts, —•</p> <p>“ Witnesseth, that, in consideration of the promise and agreement of said Elizabeth A. Heywood to marry the said Edward M. Bliss, and of the said Edward M. Bliss to marry the said Elizabeth A. Heywood, it is hereby mutually agreed and stipulated that the said Elizabeth A. Heywood shall own, possess, hold, and control absolutely all property which may belong to her at the time of such contemplated marriage, or which she may afterwards acquire in any manner, the same as if she were an unmarried person, free from all authority, right, or control of the said Edward M. Bliss; and shall have full and unrestrained right to dispose of the same; and at her death such property shall descend according to the terms and provisions of the will and testament of Elizabeth A. Heywood, free from all legal right of Edward M. Bliss as her husband.</p> <p>“ And it is further agreed that such marriage shall not work a revocation of the will and testament of Elizabeth A. Heywood, executed prior to said marriage, nor affect her right to alter or change the same during such marriage.</p> <p>“ In witness whereof, the said Elizabeth A. Heywood and Edward M. Bliss have hereunto set their hands and seals this twenty-fifth day of January, 1882.”</p> <p>The parties to said agreement were married on the next day after the agreement was executed, at Indianapolis, and immediately removed to Worcester, where they resided until the death of said Elizabeth, on March 15, 1884, no issue having been born of said marriage. Said Elizabeth had, in the mean time, made no other will, and no codicil to the one offered in this case.</p> <p>Edward M. Bliss had no knowledge of the execution of said will, or of its contents or existence, until after the decease of said Elizabeth, beyond the reference to a will contained in said agreement.</p> <p>The will and agreement were left by the deceased, without the knowledge of said Edward M., in the hands of the appellee, at Indianapolis, at the time of their execution, and were never thereafter in her possession.</p> <p>The appellant Edward M. Bliss is interested in the estate of said Elizabeth as her husband, and the appellant Carrie F. Ormsby as one of the next of kin.</p> <p>At the time of said marriage, the statutes of Indiana provided as follows: “ After the making of a will by an unmarried woman, if she shall marry, such will shall be deemed revoked by such marriage.”</p> <p>Said Elizabeth died possessed of about $12,000 in personal property and $500 in real estate, all of which belonged to her at the time of executing said will and agreement, excepting what may have been added by accumulations of income not expended, and by increase in value.</p>

<p>The Pub. Sts. c. 32, § 12, provide that the clerk of each city or town shall receive from the city or town certain fees for recording marriages and deaths, and that a city or town containing a certain number of inhabitants “ may limit the aggregate compensation ” allowed to the clerk. The city council of a city containing the number of inhabitants specified passed a resolution making the salary of the clerk a stated sum, and providing that he should “ account for all moneys received in his official capacity.” Held, that the clerk was not entitled to the fees above mentioned in addition to bis salary.</p> <p>The fees received by the clerk of a city for licensing dogs, under the Pub. Sts. c. 102, § 84, allowing him to retain to his own use a certain sum for each license issued, the balance to be paid into the treasury of the county, are not received in his “ official capacity,” within the meaning of a resolution of the city council fixing his salary at a stated sum, and providing that he shall account for all moneys received in such capacity.</p> <p>Where the declaration in an action of contract contains two counts, on one of which judgment is entered for the plaintiff and on the other for the defendant, it seems that an appeal by one party only does not reopen the judgment rendered in his favor.</p>

<p>If a railroad corporation takes land for depot and station purposes, under the St. of 1874, c. 372, § 60, and actually uses the land for such purposes, although it allows the station-master, in consideration of his services and the payment of a certain sum, to maintain a boarding-house, stable, and piggery upon, and to cultivate, a portion of the premises, it does not disseise the owner of the land, and he cannot recover the same in a writ of entry.</p>

<p>A bill in equity filed in 1883, against A., his wife B., C., and D., executor of E.’s will, alleged the following facts : In 1872, the plaintiff, on a writ against A., made a special attachment of a parcel of land, standing in the name of B., which A. had caused to be fraudulently conveyed to her. At the time of the attachment, the land was subject to a mortgage made by A. and B. to C., who, in 1873, sold the land, under a power of sale contained in the mortgage, for more than enough to pay the mortgage debt, and paid over the surplus remaining after satisfying the first mortgage to E., the holder of a mortgage upon said land executed after the plaintiff’s attachment. E. died in 1878, and in the same year D. was appointed executor of his will. Both C. and E. had notice, before the payment of the surplus to E., of the fraudulent conveyance, of the plaintiff’s attachment, and of the pendency of his action. In 1883, the plaintiff recovered judgment in the action against A., and execution issued which is unsatisfied. E.’s estate is not fully administered, and his executor received assets within two years before the filing of this bill, which was brought within thirty days after the judgment was obtained, and within one year after the plaintiff had notice of the receipt of such assets. Held, on demurrer by C. and D., that the bill set forth a good cause of action against D., but not against C.</p>

<p>The practice of masturbation by a husband in the presence of his wife, but without compelling her to remain present, which injures her health by its effect upon her feelings, is not “cruel and abusive treatment,” within the Pub. Sts. c. 146, § 1, making such treatment a ground for divorce.</p>

<p>Contract upon certain promissory notes, alleged to have been made by the defendant corporation, payable to the order of E. G. Kelley and William C. Binney, and indorsed to the plaintiff. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>The directors of a corporation authorized certain promissory notes of the corporation to be issued. The treasurer issued them under the seal of the corporation. In an action in which the plaintiff declared on them as sealed instruments, the issue was whether the use of the seal had been ratified. On this point there was evidence that the notes were issued in 1875; that in 1877 and 1878 two of the directors, acting as a committee of the directors, examined them to see if they were genuine; that they pronounced them to be genuine, and from 1878 to 1883 one of them, as treasurer, paid the interest upon them semiannually, and this fact appeared in his annual reports to the corporation, which were accepted by the stockholders ; and that this evidence was uncontradicted. Held, that there was sufficient evidence of ratification to go to the jury; and that a substantive act done by the directors with intent to ratify the act of the treasurer was unnecessary.</p>

<p>A., being insolvent, gave to B., in payment for a preexisting debt, his promissory note indorsed by C., to whom A., with B.’s knowledge, gave a mortgage of personal property not exempt from attachment. B. had reasonable cause to believe A. insolvent, and refused to take his note unless it was indorsed by C., who also refused to indorse the note unless the mortgage was given as security. Proceedings in insolvency were, within four months, begun against A., and his property, including that mortgaged to C., was duly sold by the messenger in insolvency, and the proceeds paid to A.’s assignee. In pursuance of an agreement between B. and C., B. took up the note at its maturity, and C. paid him a certain'sum received from A.’s assignee as a compromise of C.’s claim under the mortgage. This sum was less than the amount of the note, and less than the amount paid by the messenger to the assignee. The assignee, before paying this sum to C., knew that B. refused to take the note unless indorsed by 0., and that the mortgage was given to secure 0. against his indorsement. Held, that the settlement between the assignee and C. was a bar to an action by the assignee against B. to recover the sum paid by C. to B.</p>

<p>Section 28 of the Pub. Sts. c. 139, providing that “ no action shall be maintained against the sureties on a bond given by a guardian, unless such action is commenced within four years from the time of the discharge of the guardian,” begins to run from the death of the ward; and the further provision of the statute, that, “ if at the time of such discharge the person entitled to bring such action is out of the Commonwealth, the action may be commenced at any time within four years after his return,” does not apply to the case where an administrator of the ward’s estate is not appointed until more than four years after the death of the ward.</p>

Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows: The only evidence of the disallowance of the appellant’s claim was a list of claims disallowed at a certain meeting of creditors of the insolvent, which contained the claim in question, made and certified by the register of insolvency.

<p>A widow, within six months after the probate of her husband’s will, filed in the Probate Court a writing, signed by her, stating that the will made provision for her, “ which provision she hereby waives and declines to accept, and hereby gives notice that she will claim her dower in the real estate of said deceased, and so much of the personal estate as she may be entitled to by law.” Held, that this was an election by her to take dower in her husband’s estate; and that she was not entitled to one half of said estate during her life, under the Gen. Sts. c. 90, § 15. Held, also, that the construction of this paper was not affected by a paper filed by her in the Probate Court, after said six months.</p>

<p>A certificate, issued by a national bank, stating that a person named has deposited in the bank a certain sum, payable to the order of himself on return of the certificate properly indorsed, and understood between the bank and the depositor not to be payable until a future day agreed upon, is not in violation of the U. S. Rev. Sts. § 5183, forbidding national banks to issue any other notes to circulate as money than such as are authorized by its provisions.</p> <p>The purchase, by a trustee, with the trust funds, in good faith, of a certificate of deposit, payable at a future day, issued by a national bank, the stock of which was selling at par, and occasionally at a small premium, and which was issuing large numbers of such certificates to individuals, savings banks, and trust companies, is not such an imprudent investment of the trust funds as will make the trustee liable for a loss arising from the failure of the bank before the day stipulated for the payment of the certificate.</p> <p>At the hearing of an appeal by a trustee from a decree of the Probate Court, disallowing an item in his account showing an investment of the trust funds in a certificate of deposit issued by a national bank, and payable at a future day, evidence is admissible that, at and about the time of such investment, the bank issued large numbers of such certificates to individuals, savings hanks, and trust companies; and the evidence of bank examiners, that it is not usual for national hanks to issue such certificates, is also admissible.</p>

Petition to enforce a mechanic’s lien, under the Pub. Sts. c. 191.

<p>A person who takes from an almshouse a minor, whose father is an inmate of a soldiers’ home, and whose mother has been committed to a reformatory institution, who has a guardian, and who will inherit property upon the death of his father, may maintain an action against the minor, after his father’s death, for necessaries furnished to him upon the credit of his expectations of property.</p>

<p>If the papers in a case which comes before this court on appeal are copies of the pleadings, the report of an auditor, and the judgment of the court, the auditor’s report is not properly before this court, unless it appears, in some way, that it was made a part of the record of the court below.</p> <p>In an action for negligently keeping the plaintiff’s goods, the report of an auditor stated that the defendant was the proprietor of a building which he let in suites to tenants for housekeeping purposes, furnishing them with attendance, heat, and water; that the plaintiff had a lease of one of the suites, and desired more room for storing trunks; that the defendant told him there was a general storeroom in which he might put them; that the assistant janitor slept there, and he thought they would be safe; that he had employed a competent man, who- ■ would guard the goods; that the plaintiff afterwards put his trunks there; that afterwards the assistant'janitor went away and did not return ; and that then the contents of the plaintiff’s trunks were found to have been stolen. The report further stated that the auditor found, that, on these facts, the defendant was not an innholder, and was not guilty of gross negligence; and that the plaintiff could not maintain his action. Held, that no error of law appeared.</p>

<p>Under the Sts. of 1876, c. 236, and 1885, c. 8, the trustees under the mortgage executed by the Eastern Railroad Company are bound to cancel all certificates of indebtedness of the company purchased by'tliem with the sinking fund provided for in the mortgage, and are not at liberty to vote upon them in any meetings of the certificate holders.</p> <p>Where the court determines, on a bill in equity, the right of certain trustees, under a mortgage executed by a railroad corporation, to vote at a meeting for the election of directors on certificates of indebtedness of the corporation, held by them for a sinking fund, and thus incidentally determines the validity of votes cast by them, it will not go further and determine who is elected, if it becomes necessary to determine the validity of other votes cast at the same election.</p>

<p>In 1824, a corporation owning a mill-dam and the tenants in common of flats lying northerly of the dam executed an indenture, which, after reciting that the owners of the flats wished to fill them up so as to fit them for buildings, and to have the right to pass therefrom over the dam, provided that a certain straight line should be drawn north of the dam; that the space between this line and the dam should be filled by the owners of the flats, but no building or fixture should be placed south of said straight line, “ it being the mutual intention of the parties that the space thus filled up shall be identified with the said dam for the purposes of a highway, without any impediment or obstruction by either party to be made or procured.” The indenture further provided, that the part of the highway lying between the straight line and the centre of the dam or highway should be kept in repair “ for the purpose of travelling” by the owners of the contiguous lots. In 1828, the tenants in common of the flats, which had then been filled up, made partition of their lands, and a certain lot was set off to ()., one of their number. In 1831, a street was laid out over the dam, but the north line was not specifically defined. In 1835, the mill corporation became the owner of the lot set off to 0. In 1843, said corporation entered into an indenture with the then owners of the other lots divided by the partition of 1828, which, after reciting the indenture of 1824. and the fact that certain of the said owners of lots had erected buildings and steps south of the straight line, provided that the corporation relinquished the right to remove the structures already built, and that houses and steps might thereafter be built as far south of the line as those already built, but no further; and that no fixture of any kind other than the steps should be placed south of the front walls of said houses. In 1846, the mill corporation conveyed a part of said lot owned by it to A., and the remainder to B. Each deed contained the provision that the land was sold subject to the conditions, stipulations, and reservations relating to the erection of buildings made by the owners of the flats, but that nothing therein should be construed to require a building to be placed further north than a certain other building. In 1846-47, A. built a house on his land, conforming to the stipulated line, and fenced in a space in front of the house, and the same has been kept fenced since. In 1857, all the owners of contiguous lots fenced in similar spaces in front of their houses. In 1884, the grantee of A. began to build on the land a bay window projecting two feet and six inches in front of the south line of the house, and over the space enclosed by the fence. Held, that the grantee of B. could maintain a bill in equity against A.’s grantee to restrain him from continuing the window; and that the fact that the owners of other houses near by had built similar bay windows was immaterial.</p>

Tort for the conversion of two portable furnaces, with pipes, registers, register borders, and register boxes. Answer, a general denial.

Contract, to recover the value of a watch, chain, pencil, watch-key, and pocket-book with contents, against the defendants, as bailees of the goods; with a count in tort for the conversion of said goods. Trial in the Superior Court, without a jury, before Mason, J., who reported the case for the determination of this court, in substance as follows: The defendants are partners, and do a large ready-made and custom-made clothing business at their shop in Boston.

Tort for personal injuries received by the plaintiff while in the employ of the defendant corporation, as a section hand.

Contract, against the administrators de bonis non, with the will annexed, of the estate of Moses C. Beal, upon a bond executed by Royal B. Conant as principal, and by the defendants’ intestate as surety, given for the faithful performance by Conant of his duties as cashier of the plaintiff bank; and the last condition of which was, “ that no suit at law shall be brought or founded upon it, unless the same be commenced within the period of twelve months after the connection…

Indictment, on the Pub. Sts. o. 203, § 59, against Charles L. Blood and John H. Evans, for obtaining money by false pretences, on November 30,1881, “ with the view and intent to effect the sale to one Francis M. Andrews, of his, said Blood’s, interest and share ” in a certain business in Boston.

<p>The Pub. Sts. c. 153, § 6, providing that the Superior Court, “ after verdict or decision by the court, may report the case for determination by ” this court, do not authorize the Superior Court, after making a formal finding against the defendants, in an action upon a recognizance given in a criminal case, “ that the penalty is adjudged to be forfeited,” to report the case to this court.</p>

Contract for breach of a written agreement in the sale of goods consigned by the plaintiff to the defendant for sale on commission at fixed prices. At the trial in the Superior Court, before Knowlton, J., the jury returned a verdict for the plaintiffs; and the defendant alleged exceptions to the exclusion of certain evidence, the nature of which appears in the opinion.

Contract for expenses incurred in the relief of Sarah L. Penney, whose settlement was alleged to be in the defendant city. Writ dated September 15, 1888. Trial in the Superior Court, before Enowlton, J., who allowed a bill of exceptions, in substance as follows: The defendant admitted that Sarah L. Penney had a lawful settlement in Malden; but contended that the action was not seasonably commenced.

<p>Tort. Writ dated September 18, 1885. The declaration was as follows:</p> <p>“And the plaintiff says that he is, and has been for many years, a compiler and publisher of directories of cities, towns, and counties in this Commonwealth and elsewhere; that by care, attention, skill, and faithfulness, and after great labor and expense, he had acquired a large number of subscribers among business men and other people, throughout the cities and towns of Bristol county, and elsewhere in this Commonwealth, for ‘ The Bristol County Directory,’ which the plaintiff has compiled and published biennially for many years, and until the acts and doings of the defendant hereinafter complained of; that, at great labor and expense, he had acquired a large and valuable list of advertisers in his said directory, from whom, as well as from the said subscribers to said directory, he obtained a large income, and would have continued to do so, but for the acts and doings of the defendant hereinafter alleged and set forth.</p> <p>“And the plaintiff says that, according to his usual and ordinary custom in the compilation and publication of the said ‘The Bristol County Directory,’ he would have compiled and published the same in this year, A. D. 1885, and he made his preparations therefor, but he says that the defendant and his canvassers, and other servants and agents, in order to injure the plaintiff, and to deprive him of the opportunity of compiling and publishing said directory for said year of 1885, and thereafterwards, and receiving the gains and profits therefrom, and to secure the same to the defendant, together with all the gains and profits arising therefrom, and otherwise to injure the plaintiff and get gain, profit, and advantage to the defendant, knowingly and wilfully, falsely and fraudulently, pretended and represented to many persons, and particularly to the plaintiff’s patrons, the advertisers in said directory and the subscribers thereto throughout said Bristol county, that the plaintiff had gone out of the business of compiling and publishing said directory, that the plaintiff had sold out said business to the defendant,' that the said canvassers and the defendant’s other servants and agents were compiling the materials for the plaintiff’s directory, the same as formerly, and other false and fraudulent representations then and there made, of which the plaintiff is not yet fully informed, and thereby deceitfully and wrongfully induced the plaintiff’s said patrons, advertisers, and subscribers, in and throughout said Bristol county, to give to the defendant their advertisements and subscriptions, and to pay him instead of the plaintiff therefor.</p> <p>“ Whereas, in truth and in fact, the said representations were wholly false and untrue; the plaintiff had neither gone out of the business of compiling and publishing the said directory, as he had done for years before, nor had he sold out to the defendant, nor had he any intention of doing so; nor were the defendant and his canvassers, and other agents and servants, compiling the said directory the same as formerly or for the plaintiff; all of which the defendant, as well as his said canvassers and other servants and agents, well knew. And the defendant did knowingly, wrongfully, injuriously, and deceitfully compile and publish the said ‘ The Bristol County Directory,’ for the year A. D. 1885, and vend and sell the same to the plaintiff’s patrons, advertisers, subscribers, and other persons, as aforesaid. And the plaintiff says that thereby he has been prevented from compiling, publishing, and selling his said directory this year, A. D. 1885, as he has always done heretofore; that he has lost the great gains and profits which he would otherwise have made and received from the sale thereof, and from advertisers in and subscribers to said directory, and has been put to great loss and expense in preparing for said compilation and publication, till he learned of the defendant’s said acts and doings, and thereby he will be hereafter prevented from compiling and publishing said directory except at an increased expense and with diminished profits.”</p> <p>The defendant demurred to the declaration, on the ground that it did not set forth a legal cause of action.</p> <p>The Superior Court sustained the demurrer; and ordered judgment for the defendant. The plaintiff appealed to this court.</p>

<p>Contract upon a promissory note for $1000, in the form “ I promise to pay,” payable to the order of the plaintiff, and signed by “W. H. England, Pres, and Treas., Chelsea Iron Foundry Company.” The answer contained a general denial; and alleged that there was no consideration for the note. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff put iu evidence the note; and the defendant, who was the president and treasurer of a corporation called the Chelsea Iron Foundry Company, organized under the laws of the State of New York, and having its usual place of business in Chelsea, in this Commonwealth, admitted that the signature upon the note was made by him, and that the note was delivered by him to the plaintiff. The plaintiff thereupon rested his case.</p> <p>The defendant then offered evidence tending to show that the consideration of said note was goods sold and delivered by the plaintiff to the Chelsea Iron Foundry Company.</p> <p>The plaintiff objected to the introduction of such evidence, under the pleadings; and asked the judge to rule that the evidence was immaterial and incompetent, under an answer alleging that there was no consideration for the note. The judge declined so to rule, and admitted the evidence.</p> <p>The defendant then introduced a long bill of items, covering many different articles, the bill being headed “ Chelsea Iron Foundry Company bought of William L. Davis,” to which was annexed a receipt signed by the plaintiff, and another piece of paper with figures upon it, not signed by anybody. The original bill footed up $2339.71, but there were a number of erasures and corrections upon it. The unsigned slip of paper had upon it the figures $1953.75; underneath these figures, the figures $503.59, prefixed by the word “ paid” ; and underneath both, the figures $1450.14; underneath the last figures were the word “ add ” and the figures $20, followed by the letters “ disc.” ; and at the bottom, the words “ Due W. L. Davis.” The receipt was as follows : “ Chelsea, Mass., July 19, 1883. Received from the Chelsea Iron Foundry Company fourteen hundred and seventy dollars, of which $1450 is in pay’t of mdse, rec’d by them, and $20 for amount of interest on note of $1000 [the word “ their ” being interlined before the word “note”], four months at 6 per cent, $1470. W. L. Davis.”</p> <p>The plaintiff objected to the introduction of these papers, for any purpose. The defendant thereupon stated that he introduced the evidence to show that the consideration upon which the note was based went to the Chelsea Iron Foundry Company, and not to the defendant; and for the further purpose of showing and proving that, at the time and after the note was given, it was understood, intended, and agreed by both parties that the note was the note of the Chelsea Iron Foundry Company. The judge admitted the evidence, and the papers were shown to the jury. The defendant then was permitted, against the objection of the plaintiff, to testify as to the meaning of the words appearing upon the papers introduced, that the $1000 note mentioned in the receipt was the note in suit, and that the $20 set forth in the receipt and paper was the discount on the note in suit; that the plaintiff had never claimed this note to be the note of the defendant, until the time this action was brought.</p> <p>Further evidence on the same points was introduced, under objection, through the deposition of W. H. Braine, one of the employees of the company, in charge of its works in Chelsea, which was that the goods mentioned in the bill of parcels were furnished to the company by Davis, and used by it; and that the plaintiff had never claimed to hold anybody but the company upon the note; until the bringing of this action.</p> <p>The plaintiff asked the judge to rule, as matter of law, that no evidence of what the intent of the parties was in making the note was competent to affect the contract set forth in said note. The judge declined so to rule; and, among other things, instructed the jury as follows:</p> <p>“The signature makes it in law the note of the defendant.....The defendant contends that he has proved to you, and has offered evidence, which you ought to believe, that it was always understood between him and the plaintiff, and agreed, that this note was the note of the Chelsea Iron Foundry. Company, and not the note of William H. England, and there has been some evidence upon that; but it is not for the court to go through with that testimony.....</p> <p>“ There is no doubt what the consideration of this note was. It appears that the note was given, and it is my duty to say to you that the defendant gave this note in settlement of an account; he has a right to give it, and can bind himself by it, and the other party has a right to take it. All the evidence having gone in, it is for you to decide whether there was any such agreement to alter the effect of this note. If there was any effectual agreement, altering the legal effect of that note, then the plaintiff has not a right to recover.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>A mortgage of all the personal property of a manufacturing corporation, except its book accounts, given by the president and treasurer of the corporation to secure the payment of a preexisting debt, without previous authority or subsequent ratification by, or the knowledge and acquiescence of, the directors of the corporation, is invalid, although the president and treasurer was also the general manager of the corporation, and owned all but two shares of its capital stock.</p>

<p>B., in this Commonwealth, ordered goods by mail of A., in England, with instructions to “ship to care of M., shipping merchant, L., as soon as possible, for his next steamer.” M. was a shipping merchant at L., and owner and agent of the C. line of steamers. This order was filled by A., and the goods were shipped by the C. line and duly received by B. Subsequently B. wrote to A., acknowledging the receipt of these goods, and ordering more goods, saying: “As regards the shipping of the goods just received, you have done everything satisfactory. Ship this order in like manner.” The goods were sent, according to B.’s instructions, to M., who, upon receiving them, wrote to A. as follows: “ Are we to keep them for our steamer sailing 14th inst., or ship by the G., which is a very slow steamer sailing 7th inst., and will not, we think, arrive out before our steamer ? ” The G. was a steamer belonging to a line for which M. was not the agent, and of which steamer he was not the owner. A. replied to M.’s letter as follows: “ Send the goods by the steamer which will arrive first.” Thereupon, without further instructions of any kind, M. caused the goods to be shipped by the G., which foundered in mid-ocean, and the goods were lost. Held, that A. could not maintain an action against B. for the price of the goods.</p>

<p>Bill in equity, filed May 4, 1885, by the assignee in insolvency of the estates of John Lincoln and Volney R. Chamberlin, copartners under the firm name of Lincoln, Chamberlin, and Company, for the appointment of a receiver of the rents and profits of certain land, pending the determination of two writs of entry to recover the same; and for an injunction to restrain the defendant from collecting said rents and profits. The case was heard in the Superior Court, by Knowlton, J., and reported for the determination of this court, in substance as follows:</p> <p>The plaintiff is the assignee in insolvency of John Lincoln and Volney R. Chamberlin, copartners under the firm name of Lincoln, Chamberlin, and Company, and has brought two writs of entry against the defendant and one Lucia W. Chamberlin to recover the real estate described in his bill. The defendant is in possession, and in receipt of the rents and profits, of said real estate.</p> <p>The first of said parcels, called the Moore estate, formerly belonged to J. W. and E. M. Moore, who became insolvent, and of whose estate Yolney R. Chamberlin was the assignee in insolvency. This property was subject to two mortgages given by said J. W. and E. M. Moore, the first to secure the payment of $3000 and the second of $2000.</p> <p>On May 31,1880, Samuel G. Lane, administrator of the estate of the mortgagee, assigned the second of said mortgages to the defendant for $2060, which was paid by Yolney R. Chamberlin from the moneys of Lincoln, Chamberlin, and Company. Cham' berlin negotiated for this assignment, and procured it to be made. On August 12, 1881, Chamberlin, as assignee of J. W. and E. M. Moore, conveyed said estate to the defendant, subject to.the two mortgages above named, for a consideration stated in the deed to be $1400. This money he accounted for as assignee of said J. W. and E. M. Moore, and he paid it from the funds of Lincoln, Chamberlin, and Company, said conveyance having been without consideration as between him and the defendant. Subsequently, the defendant made an entry to foreclose said second mortgage, and filed a certificate thereof.</p> <p>The second of said parcels, called the homestead estate, was bought by Chamberlin, and mortgaged back to the seller for $10,000, on May 14,1874, and has since been occupied by Chamberlin as his homestead. On May 14, 1879, Chamberlin procured said mortgage, upon which there was then due $9000 and accrued interest, to be assigned by the mortgagee to one Thomas Curley, and, on May 15, 1879, to be assigned by Curley to the defendant. Curley was an attorney at law, and took no part in the transaction except to do what Chamberlin requested. At that time the defendant held a promissory note against Lincoln, Chamberlin, and Company for $6500, and $6000 was then indorsed as paid upon it, and that sum, with $1000 made up from other claims she held against said firm, was treated as furnished by the defendant towards the payment for this mortgage, and the balance of $2000 and interest was treated as furnished by Chamberlin, and he paid the entire sum of $9000 and accrued interest from the moneys of Lincoln, Chamberlin, and Company. No indorsement of any payment upon the principal of said note was made at that time, but the interest was indorsed as paid to that date, and the note continues to indicate that $9000 of the principal is still due. The defendant at this time made a note of $2000, payable to the firm of Lincoln, Chamberlin, and Company. In an account of subsequent transactions between the defendant and Chamberlin, he was credited with payments of interest upon $7000, on account of said mortgage, down to about the time of the commencement of insolvency proceedings in his case, but no indorsements thereof were ever made upon said note. The defendant has filed a certificate of entry to foreclose said mortgage.</p> <p>Chamberlin became insolvent as long ago as 1875, and continued so until the commencement of insolvency proceedings in his case.</p> <p>The judge found that a part of his purpose in causing each of said conveyances to be made to the defendant was to hinder, delay, and defraud his creditors, and that the relations of the defendant to him were such, and the business was done in such a way, that she must be holden to have participated in his said purpose, so that the title under which she holds each of said parcels of real estate is fraudulent as against the creditors of Lincoln, Chamberlin, and Company, and of Volney R. Chamberlin.</p> <p>The evidence from which the judge found the participation of the defendant in a fraudulent purpose consisted in a great variety of facts, statements, and circumstances from which inferences could properly be drawn, some of which indicated that her purpose was honest, and others that it was fraudulent. This evidence was of such a nature that the judge found that different tribunals, acting fairly, would be likely to come to different conclusions in determining from it the question of the ■ defendant’s fraud.</p> <p>The judge also found that the allegations of the bill regarding mismanagement and waste of the property by the defendant were not sustained; that the rents and profits of the estates were a little more than $2000 per year; that the defendant was possessed of sufficient property to enable her, in the absence of any large loss, to pay any judgment which the plaintiff would be likely to obtain against her for damages on account of the detention and use of said real estate, if she desired; and that such judgment “may be of doubtful value” solely because it will be unsecured, and the defendant’s situation may be such that it cannot be enforced against her; and dismissed the bill, with costs.</p>