Volume 142 — Massachusetts Reports

<p>Bill in equity, filed November 17,1883, by the administrator of the estate of Calvin Morse, to obtain the instructions of the court as to the disposition of certain funds. The case was referred to a master, who found the following facts:</p> <p>The plaintiff’s intestate, Calvin Morse, in 1873, was living in Natick. He was unmarried, and with bis brother, Rufus Morse, and sister, Caroline Morse, lived in a house owned by himself. Maria Hayes was his sister, living near him, and Edgar S. Hayes was her son. The other parties to this suit were the descendants of a deceased brother, Willard Morse.</p> <p>On April 5, 1873, Calvin Morse deposited $1000 in the Natick Five Cents Savings Bank in the name of “ Calvin Morse, Tr. for E. S. Hayes,” and took a deposit-book therefor, numbered 2903. In May, 1873, he gave the book to Edgar S. Hayes (who then and afterwards, till the time of Calvin Morse’s death, had the care of his books and papers, and assisted him in various business transactions), and said, “ Here is a book I want you to take care of; if you outlive me, it is yours.”</p> <p>On June 13,1873, Calvin Morse deposited in said bank $4000, the proceeds of a sale of land. These deposits were made as follows: “ Book 3006, $1000; Calvin Morse in trust for Rufus Morse. Book 3007, $1000; Calvin Morse in trust for Edgar S. Hayes. Book 3008, $1000; Calvin Morse in trust for Caroline Morse. Book 3009, $1000; Calvin Morse in trust for Maria Hayes.” These four books were put in the care of Edgar S. Hayes. Morse informed each of these four persons that he had deposited these sums. To Maria Hayes he said, “ I can control this while I live, but if I die without drawing it, it is yours.” To Rufus and Caroline Morse he said, that he had put in these sums in trust; that he could do what he had a mind to with the money while he lived, but that it was theirs after he died.</p> <p>Calvin Morse knew, at the time of these deposits, that he could not draw interest on any sum over $1000.</p> <p>On November 15, 1873, Calvin Morse drew out the interest which had accrued on these several deposits; and on May 5, 1874, Edgar S. Hayes, under the direction of Calvin Morse, drew the interest on said deposits, for which he accounted to him.</p> <p>At this time, Calvin Morse was informed that, by a change of the statutes, the several deposits could be allowed to accumulate, by interest, to the amount of $1600. He then directed Hayes to let the interest accumulate. Hayes remarked to him, that then he, Hayes, would get more; to which Morse replied, “ What do you care ? I should not think you would find fault with that.”</p> <p>About a year before his death, Calvin Morse said that he should not make a will; that he had provided for his brother and sisters and Edgar S. Hayes by depositing money in the savings bank.</p> <p>The night before he died, Calvin Morse said to his brother and sisters, “ When I am. gone, you take these books and transfer the money to your own names, and say nothing to nobody about it.” Calvin Morse died on March 30, 1881.</p> <p>The deposit-books remained in the possession of Edgar S. Hayes till May 8,1882, when he withdrew from the bank deposits 2903 and 3007. Hayes retained possession of books 3006, 3008, and 3009 till November, 1883, when he delivered them to the plaintiff, the administrator, who has retained them to this time.</p> <p>The case was heard by Meld, J., and reserved for the consideration of the full court; such decree to be entered as justice might require.</p>

<p>The heirs of E. brought, with the knowledge of the administrator-of E.’s estate, a bill in equity against S. with alternative prayers for damages and for specific performance of an agreement to convey certain' real estate. A decree was entered that S. should execute a deed of the same to the heirs within three months, on payment of a certain sum. On the same day, a decree was made by the Probate Court, on the petition of the administrator, licensing him to sell the real estate of E. The only real estate of E. was that which was the subject of the bill in equity. The heirs did not pay S. the amount named in the decree, but brought a bill of review to reverse the judgment rendered in the suit in equity, which bill was dismissed for want of prosecution. Held, that the interest of the estate of E. and of his heirs had determined; and that the decree of the Probate Court must be reversed.</p>

Contract, by the receiver of the Clairmont Savings Bank of ¡New York, against the maker of two checks on the Blackstone ¡National Bank of Boston, for $144.33 and $123.42, dated September 13 and 14,1877, respectively, and payable to the order of C. S. Durling.

Tort, Tinder the Pub. Sts. o. 100, in five counts. The first count alleged that the plaintiff was the wife of William J. Kennedy; that said William J. had the habit of drinking spirituous or intoxicating liquors to excess; that in September, 1884, the plaintiff gave notice in writing, signed by her, to the defendant, requesting him not to sell or deliver such liquor to said William J.; and that the defendant did sell or deliver such liquor to said William J. after the giving…

<p>If a promissory note is attested, before delivery, by a person not a party to it, without the procurement or knowledge of either party, and the note is accepted by the payee without any knowledge that it has been attested, and without relying upon the attestation as a part of the contract, the attestation is not such a material alteration as will make the note void, but may be stricken out; and an action may be maintained upon the note.</p>

<p>Bill in equity, against Isaac B. Rich and Lizzie S. McKenney, to obtain the assignment of a mortgage. The case was heard in the Superior Court by Blodgett, J., who reported the case for the determination of this court, in substance as follows:</p> <p>Certain household furniture, a part of which was exempt by law from attachment, had been attached in the house of the defendant McKenney, and the portion not exempt had been removed therefrom by the officer who made the attachment, on a writ in favor of the plaintiff; the defendant Rich held a mortgage covering all of said household furniture, and was ready to accept the amount tendered by the attaching creditor; and the only question in controversy was whether the attaching creditor, by making such tender, was entitled to an assignment of the mortgage. The judge ruled that he was not entitled to such assignment, and dismissed the bill.</p>

Contract, with counts in tort, by the assignee in insolvency of the estate of Charles H. Abbott, to recover the amount of certain promissory notes, alleged to have been transferred to the defendants, in violation of the provisions of the insolvent law.

<p>Tobt for the obstruction of an alleged right of way across the defendant’s railroad in that part of Boston formerly Dorchester. At the trial in the Superior Court, before Bacon, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>By the St. of 1868, c. 81, certain persons were incorporated as the “ Massachusetts Society for the Prevention of Cruelty to Animals; ” but the objects and purposes were not defined otherwise than by the title of the act. By the St. of 1868, c. 212, § 8, reenacted in the St. of 1869, c. 344, § 7, all fines collected upon the complaint or information of any officer or agent of the corporation under that statute are to be paid over to the corporation “ in aid of the benevolent objects for which it was incorporated." The methods adopted by the corporation are the gratuitous dissemination of papers and essays, and the delivery of free lectures, setting forth the proper treatment of animals; the organization of societies whose members are pledged to the prevention of cruelty to animals; the employment of agents to aid in enforcing the laws upon the subject; and the erection and maintenance of a free hospital for homeless, neglected, diseased, or abused animals, where they may be kindly cared for or humanely disposed of. Held, that the corporation was a “benevolent” and “charitable” institution, within the Pub. Sts. c. 11, § 5, cl. 3, exempting the property of such institutions from taxation.</p>

<p>Before 1874, the statutes of the Commonwealth provided for the appointment of a reporter of the decisions of the Supreme Judicial Court, who was required to be sworn to the faithful performance of his duties. The manner in which the decisions were to be reported, and the time in which they were to be published, were also prescribed. He was paid a salary by the State, and given “the profits arising from the publication of his reports.” By the St. of 1874, c. 43, the reporter was required to keep in a public office the written opinions of the court in all cases argued, until their publication in the reports, and also his dockets and copies of papers in such cases, and to “ afford due facilities for their examination.” By the St. of 1879, c. 280, the Secretary of the Commonwealth was directed to enter into a contract with A. for the publication of the reports, the statute specifying the size, style, and form of the volume, obliging the publisher to sell at a certain price to the public in this State, and at a certain less price to the State, and to pay the reporter a salary. The statute further provided, that the reporter should not be required or allowed to publish the reports; and that the stereotype plates and copyright of the volumes published should be the property of A. Held, that A. had no right, under a contract entered into with the Commonwealth in pursuance of the statute, to the first publication of the opinions of the courtand that any one, although not a citizen of the State, had a right to require the reporter to allow copies of such opinions to be made for the purpose of publication.</p>

<p>Under the St. of 1881, c. 230, the manager of the Troy and Greenfield Railroad and Hoosac Tunnel has no power, for the purpose of saving expense to the Commonwealth, to make an order which violates a contract entered into, under the St. of 1880, c. 261, between said manager and a certain railroad corporation, by the terms of which the corporation is entitled to charge the Commonwealth for the number of miles run by the switching engines of the corporation upon the first-named railroad.</p>

<p>If A., a citizen of this Commonwealth, with knowledge that his debtor residing here has stopped payment, and anticipating that proceedings in insolvency will be begun against the debtor, makes an assignment of his claim to a citizen of another State, without consideration, and the latter, before proceedings in insolvency are begun against the debtor, brings an action upon the claim in said State, and attaches property of the debtor there, this court will, on a bill in equity, by the assignee in insolvency of the debtor, restrain A. from prosecuting the action to judgment, if A. has control of such action.</p>

<p>Trustee process. The Superior Court ordered judgment for the plaintiffs, as against 'the claimant of the funds in the hands of the trustees, and that the trustees be charged; and the claimant appealed to this court. The facts appear in the opinion.</p>

<p>In an action for an illegal arrest, made by authority of a certificate issued by a magistrate upon the affidavit of the clerk of the defendant’s attorney, evidence is admissible, on the issue of the authority of the clerk to act in the matter, of the presence and conduct of the defendant at the hearing, after the arrest, upon the application of the plaintiff to take the oath for the relief of poor debtors, although such hearing was subsequent to the date of the writ in the action for the illegal arrest.</p> <p>The authority of an attorney at law to collect a debt does not cease on his obtaining a judgment and execution, and if, by his procurement, or that of his clerk acting within the general scope of his employment, the judgment debtor is illegally arrested, the principal of the attorney is liable therefor.</p>

<p>Bill in equity, filed November 11,1885, by the executors of the will of William Perry, against John Cummings, to enforce specific performance by the defendant of an agreement in writing for the purchase of a parcel of land in Brockton. By an amendment to the bill, William Perry, the sole heir at law and next of kin of the testator, was made a party defendant. Hear-ing before Devens, J., who reserved for the consideration of the full court the following case :</p> <p>The testator died on May 29, 1884, leaving a will, dated Janu- ' ary 18, 1888, which was duly proved and allowed, of which the plaintiffs were appointed executors, arid which, after giving certain legacies, provided as follows: “I direct and authorize the executors of my will to have full charge of all my real estate, to lease the same and collect the rents, and, as soon as convenient and profitable, to sell and convey the same to any purchaser or purchasers, at public or private sale, without any order of any court or license therefrom; or they may turn over or convey any part or parts of the same .in discharge of any devises or bequests herein, on consent of such devisee or devisees, all as in their judgment may appear best.”</p> <p>On May 13,1884, the testator conveyed several parcels of real estate, of which that which is the subject of this suit was one, to three persons, to have and to hold to them, “ and.their heirs and assigns forever, in trust nevertheless for the said Perry, with full power and authority to said trustees to manage said real estate as they may deem best, to lease, let, to sell and convey the same, or any part thereof, at public or private sale, and to execute and deliver a deed or deeds of the same.”</p> <p>On May 14, 1884, the testator executed the following codicil: “ I William Perry of Brockton in the county of Plymouth and Commonwealth of Massachusetts do make this my codicil to my last will dated the eighteenth of January, A. D. 1883.</p> <p>“ I do hereby give and bequeath to Mrs. Ann Elizabeth Barrell of West Bridgewater in said county the sum of one thousand dollars. In all other respects I hereby confirm said will.”</p> <p>On November 18, 1884, the persons named as trustees in the testator’s conveyance to them of May 13, 1884, by a quitclaim deed, which recited that “ whereas the said William Perry has died, and the said trust created by said deed has terminated,” conveyed said real estate to the plaintiffs, “ executors as aforesaid, their heirs, successors, and assigns, for their use and behoof forever.”</p> <p>On October 21, 1885, the plaintiffs, as executors of Perry’s will, and the defendant Cummings entered into an agreement in writing, by which the plaintiffs agreed to sell and convey to him, upon the payment by him of $500, a certain parcel of land in Brockton, “ such conveyance to be made by deed without any covenants by ” the plaintiffs “ except for their own acts; ” and he agreed to accept the deed, within ten days from the date of the agreement, “ provided a good title to the land be thereby conveyed free from all incumbrances,” and to pay the executors therefor the sum above named.</p> <p>On October 27, 1885, the plaintiffs, as executors of the will of Perry, “ by virtue of the power conferred upon us by said will, and of every other power us thereto enabling,” executed a quitclaim deed of the land named in said agreement, covenanting “that the premises are free from all incumbrances made or suffered by us,” and tendered the same to Cummings and demanded payment of said 1500 of him. Cummings refused to accept the deed or pay the price therefor.</p>

<p>An instrument purporting to be a lease of a great pond, under the Pub. Sts. c. 91, § 12, is not admissible in evidence without proof of the genuineness of the signatures of the commissioners on inland fisheries attached thereto; and a certificate of the Secretary of the Commonwealth, attached to the instrument, certifying that the persons signing the same were at the time such commissioners, and that their signatures are genuine, is not the certificate contemplated by the Pub. Sts. c. 169, § 70, and does not render the instrument admissible in evidence.</p> <p>A complaint on the Pub. Sts. c. 91, § 27, for unlawfully fishing in a certain pond, need not aver that the pond is a great pond or an artificial pond, nor that the defendant was not lawfully engaged in cultivating or maintaining said fish.</p> <p>At the trial of a complaint on the Pub. Sts. c. 91, § 27, for illegally fishing in a great pond, it appeared that a lease of the pond by the commissioners of inland fisheries had been made to the inhabitants of the town in which the pond was situated; that the lease was in possession of the town officers, and was recorded in the town records ; and that there were repeated votes appropriating money to stock the pond with fish, choosing committees to stock the pond and other committees to look after the pond, receiving and acting on the reports of their fish committees, accepting the rules and regulations made by them for the use of the pond, changing the times of fishing therein, and directing their fish committee to apply for changes to the commissioners. Held, that these facts afforded ample evidence, as against the defendant, that the inhabitants were lawfully the lessees of the pond; although there was no formal vote of the town accepting the lease.</p> <p>At the trial of a complaint on the Pub. Sts. c. 91, § 27, for illegally fishing in a great pond, the defendant is not entitled to a ruling that fishing for any other fish than those which were the only useful fish alleged to be cultivated in the pond would be no offence.</p> <p>A person who paddles a boat, in which another is fishing in violation of the Pub. Sts. c. 91, § 27, may be convicted of illegally fishing, within that statute, as a participant in the offence.</p>

<p>At the trial of an action for the conversion of a promissory note payable to A., signed by B. and pledged to the plaintiff, another note, signed by A. and delivered to the defendant, containing the words “collateral in B.’s note,” was put in evidence by the plaintiff, who was then allowed to show, by the testimony of A., that, in a loan of a certain sum by the defendant to A., which that ' note represented, nothing was said about the note in suit, and that A. did not know that it was mentioned as collateral in any note he had given to the defendant ; and the judge ruled that it “ could not be received to affect the right of either party under the note and contract ” admitted in evidence. Held, that the defendant had no ground of exception.</p> <p>In an action for the conversion of a promissory note, several months before its maturity, evidence of the financial condition of the maker of the note at its maturity is inadmissible upon the question of damages.</p> <p>If a promissory note, held in pledge, is delivered by the pledgee to the pledgor for the purpose of procuring it to be discounted, and a third person advances money upon the note, in good faith, and in ignorance of the pledgee’s title, he can retain the note, as against the pledgee, as security for the advance; but if such person knew, at the time the note came into his possession, of the pledgee’s title, he cannot hold it, as against the latter, either for an advance of money upon it as a loan to the pledgor, or as security for any former indebtedness of-the pledgor to him.</p> <p>If some of the evidence at the trial of an action is conflicting, one party is not entitled to a ruling that, upon "the undisputed facts of the case, the jury must find for him, unless the disputed facts were immaterial to the issue.</p> <p>A party to an action is not entitled to have a request for a ruling granted, which fails to state any proposition of law, but asks for a ruling upon certain facts which the jury may find.</p>

Petition, under the Pub. Sts. c. 191, to enforce a mechanic’s lien. Trial in the Superior Court, without a jury, before Knowlton, J., who allowed a bill of exceptions, in substance as follows: The petitioner introduced evidence tending to show the following facts: The petitioner made a contract in writing, dated March 1, 1884, to furnish to' the respondent frame and other building material for a skating rink in Wakefield, at a certain sum per thousand feet.

Tort for personal injuries occasioned to the plaintiff by the falling of an hydraulic elevator in a building in Boston owned by the defendant, while the plaintiff was riding therein. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Petition, under the St. of 1873, e. 360,* for the appointment of commissioners to assess damages for the taking by the respondent of certain land in Charlestown, alleged to belong to the petitioner.</p> <p>Hearing before Morton, C. J., who reported the case for the determination of the full court, in substance as follows:</p> <p>The land alleged to have been owned by the petitioner consisted of the following passageways and street, namely, the passageway between and parallel with First Street and Second Street; the passageway from First Street to Second Street; the passageway from First Street towards Austin Street; and the whole of First Street.</p> <p>The plaintiff derived his title to these parcels of land through two conveyances, as follows: On October 19, 1844, the Charles-town Wharf Company quitclaimed to James Gould all its right, title, and interest in and to First Street, in Charlestown, together with all passageways laid out by said company between First Street and Austin Street, and between First Street and Second Street, running between said streets, or parallel to the same, subject to all the rights, privileges, and easements before conveyed to other persons. On April 28, 1870, Gould quitclaimed the same to the plaintiff.</p> <p>The Charlestown Wharf Company before its deed to Gould was the owner in fee of a large tract of land, including said street and passageways.</p> <p>The lots of land abutting on said street and passageways were conveyed to different persons by said company before its deed to Gould, by the following deeds :</p> <p>1. A deed dated October 3, 1838, of several lots, not now* in controversy, by reference to a plan of one Barker, and the following : “ Also a certain other tract or parcel of land situated in said Charlestown, and being lot numbered seventy-three on said plan, bounded, described and measuring as follows; viz. northwesterly by lot numbered seventy-two on said plan, sixty-nine feet one inch; northeasterly by a common passageway six feet wide, and there measuring twenty-three feet four inches ; southeasterly by a new street forty feet wide, called Second Street on said plan, sixty-four feet one inch; and southwesterly by Front Street twenty-three feet four inches, more or less: the northwesterly and southeasterly boundary lines of said last-described lot are parallel and distant from each other twenty-three feet four inches. Also the right and privilege (appurtenant to said lot numbered seventy-three) to pass in, through, and over said last-mentioned passageway in common with said corporation, its successors and assigns, and all others having the like right.”</p> <p>2. A deed dated October 3,1838, of a parcel of land, described as follows: “Northwesterly by a new street forty feet wide, called First Street on the plan hereinafter mentioned, one hundred and fifty-four feet; northeasterly by Lynde Street, sixty-seven feet; southeasterly by a common passageway six feet wide, and there measuring one hundred and fifty-four feet; and southwesterly by another common passageway six feet wide, and there measuring sixty-seven feet. The above-granted tract of land contains seven lots, numbered sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, on a plan made by Ebenezer Barker, called ‘ Charlestown Wharf Company, section one,’ dated October 3, 1838, recorded with Middlesex deeds. Also a certain other tract of land situate in said Charlestown, containing lots numbered twenty-three and twenty-four on said plan, bounded, described, and measuring as follows; viz. northeasterly by Lynde Street, sixty-seven feet; southeasterly by a new street forty feet wide, called Second Street on said plan, forty-four feet; southwesterly by lot numbered twenty-five on said plan, sixty-seven feet; and northwesterly by a common passageway six feet wide, forty-four feet. Also the right and privilege, in common with said corporation, its successors and assigns, and all others having the like right, to pass and repass in, through, and over each of said passageways, which right and privilege is appurtenant to each of the above-granted lots.”</p> <p>3. A deed dated June 17, 1839, of a parcel of land, described as follows: “ Southeasterly by a new street forty feet wide, called Second Street on the plan hereinafter mentioned, one hundred and ten feet; southwesterly by a common passageway six feet wide, sixty-seven feet; northwesterly by another common passageway six feet wide, one hundred and ten feet; and northeasterly by lot numbered twenty-four on said plan, sixty-seven feet. The above-granted tract of land contains five lots,, numbered twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine, on a plan made by Ebenezer Barker, called ‘ Charlestown Wharf Company, section one,’ dated October 3,1838, and recorded with Middlesex deeds. Also the right and privilege, in common with said corporation, its successors and assigns, and all others having the like right, to pass and repass in, through, and over each of said passageways, which right and privilege is appurtenant to each of the above-granted lots.”</p> <p>4. A deed dated May 31, 1843, of a parcel of land, described as follows: “Northwesterly on land of the Commonwealth of Massachusetts, one hundred and fifty-nine feet and ^; northerly on Austin Street; southeasterly on lots numbered one hundred "and thirteen, one hundred and twelve, one hundred and eleven, one hundred and ten, and one hundred and nine, on the plan hereinafter mentioned, one hundred and twelve feet and ; southwesterly on a passageway six feet wide leading into First Street, so called, twenty-one feet; southeasterly again on the end of said passageway, six feet; northeasterly on said passageway, eighty-one feet and ; southeasterly again on a new street forty feet wide, called First Street, sixty feet; and southwesterly on Front Street by a curved line extending from said Front Street to the land of the Commonwealth aforesaid: the said parcel of land includes lots numbered one hundred and five, one hundred and six, one hundred and seven, one hundred and eight, one hundred and fifteen, and one hundred and sixteen, on a plan of certain lots of the Charlestown Wharf Company, drawn by S. M. Felton, dated May 15, 1843, and recorded in Middlesex Registry. Also a right of way as appurtenant to the said described parcel of land, and to each of the lots contained therein, in and over the said six-feet passageway leading to First Street, in common with the said corporation and its assigns, and all others entitled to a like right, and all other rights, privileges, and appurtenances to the said parcels of land, or either of them, belonging, be said measurements more or less, or however otherwise the said parcels of land may be bounded or described.”</p> <p>5. A deed dated August 1,1844, of a parcel of land, described as follows: “ Beginning on Front Street, at the southwesterly corner of the tract hereby conveyed, thence running northeasterly and bounded southeasterly by lot numbered seventy-three on a plan of the said company, dated October, 1838, sixty-nine feet one inch; thetice running northwesterly, and bounded northeasterly by a passageway six feet wide, laid out on said plan, ninety-three feet four inches; thence running southwesterly, and bounded northwesterly by lot numbered sixty-eight on said plan, ninety-one feet nine inches ; thence running southeasterly to the point begun at, and bounded southwesterly by Front Street^ being the whole of lots numbered sixty-nine, seventy, seventy-one, and seventy-two on said plan, and containing by estimation seventy-four hundred and seventy-two feet, together with a right to use said passageway and said Front Street in common with the owners of the other lots abutting thereon.”</p> <p>If the various deeds of the Charlestown Wharf Company before that to Gould, dated October 19, 1844, conveyed the fee in the said streets and passageways to the several grantees, the petition was to be dismissed; otherwise, commissioners were to be appointed.</p>

<p>Petition alleging that, on or about February 18, 1858, the petitioner was appointed to the office of policeman by the mayor and aldermen of the city of Boston, and became a duly qualified member of the police force thereof; that he continued a member of said police force, under the authority of such appointment, until the passage of the St. of 1878, o. 244, which went into effect on May 14 of said year; that, by the provisions of this act, the government of said police force was vested in three commissioners, appointed by the mayor with the approval of the city council of said city, and the members of the then force were continued in office, subject, however, to removal by said commissioners for cause; that the petitioner was continued in his said office by the provisions of said act until the passage of the St. of 1885, c. 323, which went into effect on June 12 in said year; that, by this act, all the powers vested in said board of police commissioners by the St. of 1878, were vested in a board of police consisting of three persons appointed by the Governor of the Commonwealth, with the advice and consent, of the Council, and, by the provisions thereof, the then members of the police force existing at the time of the appointment of said board were continued in office upon the same tenure as before; that the petitioner was continued in office by said act, and held at said time the important office of chief inspector, to which he had been promoted in the year 1880, having, prior to said promotion, filled every other grade of office in said force; that after the passage of said act, Albert T. Whiting, William H. Lee, and William M. Osborne, all of said Boston, were duly claiming to be appointed as a board of police of said city under the provisions of said act, and as such are now exercising the powers of the same; that, on or about August 31, 1885, the petitioner received a communication in writing from said board, requesting him to resign his office as a member of the police force of said city on or before the first day of September next thereafter; that thereupon the petitioner inquired of said board as to the cause of such request, and if any charges had been brought against him, or if it, the board, had any to prefer, but the board refused to give any legal cause, and stated that no charges had been brought, and that they had none to prefer; that thereupon the petitioner refused to resign from said force, and on September 5 said board of' police passed an order removing him from said police force, and have since refused to allow the petitioner, although willing, to perform the duties thereof; that, under the powers vested by the statute in said board of police, the board has authority only to remove him from his office of policeman for legal cause; that, in exercising such power of removal, they act in a judicial capacity, and can remove him only after charges have been preferred against him, notice thereof given him in writing, a hearing held thereon, with an opportunity for him to present his defence; that the board has refused so to exercise its power of removal, and has attempted to remove the petitioner summarily, and without any legal cause, and in so doing has exceeded its jurisdiction, and its action towards the petitioner is therefore illegal and void; that the action of said board tends to injure the petitioner’s character and reputation; and that, by such attempted removal, if not restrained by this court, he may lose his rights to be retired upon a pension, to which his long years of service make him eligible.</p> <p>The prayer of the petition was, that a writ of mandamus issue to the board of police of the city of Boston, commanding it to restore the petitioner to said office of policeman, or show cause why it should not do so.</p> <p>The answer alleged that, by virtue of the powers conferred upon the respondent by the St. of 1885, c. 823, after full consideration and'investigation, it passed the following vote: “Boston, September 5, 1885. Voted, that Capt. William A. Ham be and he is hereby discharged from the police force of the city of Boston for inefficiency and lack of confidence on the part of this board, to take effect from date; ” and that the petitioner had no right, as alleged in his petition, to be retired upon a pension.</p> <p>At the hearing, before 0. Allen, J., the following facts appeared, and upon them the case was reserved for the consideration of the full court.</p> <p>The vote of the police commissioners set up in the answer was passed by them without any formal charges being preferred against the petitioner, and without any hearing of him before the commissioners.</p> <p>By the St. of 1876, c. 16, the Boston Police Relief Association was incorporated, and it passed certain by-laws, under which the petitioner claims to be entitled to certain benefits.</p> <p>Under a city ordinance of 1876, continued in 1880, a large fund has accumulated, and the petitioner claims to be entitled to certain benefits under the same.</p> <p>Before the removal of the petitioner, the police commissioners orally stated to him that they did not consider him an efficient officer, and that both they and the' public had lost confidence in him, and for that reason they proposed to remove him.</p>

Petition alleging that the petitioners were copartners having their usual place of business in Boston; that on June 26, 1885, they duly recovered judgment against G. I. Robbins, of said Boston, in the Municipal Court of the city of Boston, on which execution duly issued on June 30 ; that, after all due and proper proceedings on the same, said Robbins duly appeared before William E. Cassidy, a commissioner in insolvency within and for said county, for the purpose of taking…

<p>Bill in equity to settle the affairs of a partnership, not already adjusted between the parties, including letters patent and other personal property, and for an account. After the former decision, reported 136 Mass. 260, the case was recommitted to the master, the material parts of whose report, together with the facts, appear in the opinion. The case was heard by 0. Allen, J., and reserved for the consideration of the full court; such decree to be entered as justice and equity might require.</p>

<p>Tort for an assault and battery. At the trial in the Superior Court, before Knowlton, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the. opinion.</p>

<p>In an action of tort against a city for flooding the plaintiff’s land, the plaintiff’s evidence tended to show that the defendant constructed a drain along a street, and thence through a private way to a catch basin near the rear of the plaintiff’s land; that the object of the drain was to carry off surface water, a portion of which naturally ran away from the plaintiff’s land; that in the rear of this land was a small brook or ditch; that the water in wet seasons overflowed the catch basin, rose to the surface of the ground, ran into the brook, and did the injury complained of; and that the ditch or brook ran under a street through a culvert which was insufficient in size and choked up, and thereby water was backed upon the plaintiff’s land. The evidence for the defendant contradicted the facts and causes of damage alleged by the plaintiff. The plaintiff asked the judge to instruct the jury that the defendant could not lawfully collect water not naturally coming near the plaintiff’s laud, and, conducting it by an artificial channel, precipitate it upon his land; that, if the ditch was a natural watercourse, the defendant was bound to make a suitable culvert for it under the street, for the passage of water which might naturally come there or be brought there by the defendant’s acts; that, if the culvert had been maintained by private persons for more than twenty years, it was the duty of the defendant to see that it was not obstructed, even if the waters were not those of a natural stream. The judge declined so to rule, and instructed the jury that the defendant had no right to go beyond the limits of its highways for the disposal of surface water, without the permission of the adjoining proprietors; that, if the owners of the private way assented, the defendant might place the drain therein, and, with the assent of the owners of the land, conduct the water to the ditch and culvert, and the plaintiff could not complain unless he was a riparian proprietor on the brook; that, if the plaintiff was not such proprietor, he could not complain that the brook was so interfered with that the water which flowed into it could not flow out of it; and that, if the defendant improperly constructed the drain, and so negligently maintained it, either by itself or in connection with the culvert, that the plaintiff sustained an injury, he could recover. Held, that the plaintiff had no ground of exception.</p> <p>If the testimony of a witness is contradicted, no exception lies to the refusal of the judge to instruct the jury what their verdict should be if they should believe the testimony of the witness to be true.</p> <p>No exception lies to the refusal to give an instruction in the language requested, if it is given in substance.</p> <p>Mere surface drainage over one tract of land to another, through a ditch, does not constitute a watercourse.</p> <p>In an action, begun in the fall of 1882, for an injury occasioned by flooding the plaintiff’s land in the spring of 1876, and in 1877 and 1878, evidence of the flow-age or damage done in the spring of 1876 is properly excluded, the claim being barred by the statute of limitations.</p>

Contract against the defendant as a common carrier, for failure to collect and return the value of goods entrusted to him for delivery; with a count for money had and received.

Tort for the conversion of certain personal property. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, in substance as follows : Asa D. Dickenson, a witness for the plaintiffs, testified as follows: “I reside in New York, and am manager of the credits of the plaintiffs’ firm in that city, and have been in their employ four years.

<p>Contract upon a bond to dissolve an attachment. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court, in substance as follows :</p> <p>The declaration in the original action in which said attachment was made, containing three counts, was as follows :</p> <p>“ And now comes the plaintiff, who is a minor and sues by his next friend, S. H. Dudley, and says that, on or about the twelfth day of November last, he formed a copartnership with one George E. Sewell, for the purpose of carrying on the drug business in the city of Boston; that together with said Sewell he purchased of the defendant the stock in trade and fixtures then contained in the store numbered 817 Washington Street, in Boston aforesaid, for the sum of $4500, $1700 to be paid in cash and the balance in notes of the firm secured by a mortgage of the stock and fixtures; and the plaintiff says he paid the defendant, in good faith, the sum of $850 in cash, being one half of the cash payment of $1700, and he supposed and was led to believe, both by said Sewell and by said defendant, that said Sewell had also paid said defendant his half of said $1700 ; but the plaintiff says that said Sewell did not pay the defendant the other half of said $1700, and the defendant did not require him to pay the same; that said defendant conspired with said Sewell to secure the plaintiff’s money to the defendant’s use, and did so secure it to the amount of $850; that at or about the same time the defendant promised the plaintiff that, if at any time the firm needed help or time on the notes above mentioned, he, the defendant, would bestow it; but the plaintiff says the defendant utterly failed so to do, but assigned the mortgage and the notes secured thereby to another person, who at once proceeded to foreclose the mortgage and to oppress the plaintiff, although the defendant promised the plaintiff that the assignee would do by the plaintiff the same as the defendant would do; and the plaintiff says he has given up to the defendant any and all rights ever acquired by him from the defendant, and demanded a return of the money paid .by the plaintiff to the defendant, but that the defendant wholly refused to return the same; and the plaintiff says the defendant owes him the sum of $850.</p> <p>“And the plaintiff further says, that after the twelfth day of November last he paid or caused to be paid to the defendant the sum of $200, in pursuance of the agreement made on that day, and that afterwards he gave up to the defendant all rights he ever acquired from him as mentioned in the first count, and demanded from him said $200, together with the $850 in the first count mentioned; but the plaintiff says the defendant utterly refused and still refuses to return the same; and the plaintiff says the defendant owes him said sum of $200 in addition to the $850 in the first count mentioned.</p> <p>“ And the plaintiff further says the defendant owes him the sum of $1050, money had and received to plaintiff’s use, being the same money mentioned in the first and second counts.”</p> <p>A demurrer to the. first two counts in said declaration was sustained, and thereafter the plaintiff, without notice to or consent of the sureties on said bond, filed, by leave of court, an amendment to his declaration, containing two counts, as follows:</p> <p>“ And now comes the plaintiff, and amends the first count in said declaration as follows, to wit: He says that he is a minor, and sues by his next friend, S. H. Dudley; that on or about the twelfth day of November, A. D. 1872, he formed a copartnership with one George E. Sewell, for the purpose of carrying on the drug business in the city of Boston ; that, together with said Sewell, he purchased of the defendant the stock in trade and fixtures then contained in the store numbered 817 Washington Street, in Boston aforesaid, for the sum of $1500, $1700 to be paid down in cash, and the balance in the notes of the firm secured by a mortgage of the stock and fixtures ; and the plaintiff says that he paid the defendant, in good faith, the sum of $850 in cash, it being his half of the $1700 to be paid down in cash; but that said Sewell did not pay his half of said $1700 to the defendant, and the defendant did not require him to pay the same; that in consideration of the premises, and of the cash paid by the plaintiff, the defendant promised the plaintiff that, if at any time the firm needed time or help on the notes above mentioned, the defendant would bestow it; but the plaintiff says the defendant utterly failed to do so, although requested, and assigned the mortgage and the notes secured thereby to another person, who at once proceeded to foreclose the mortgage and oppress the plaintiff, although the defendant promised the plaintiff that the assignee would do by the plaintiff the same as the defendant would do; and the plaintiff says he repudiated all contracts with said Sewell and with the defendant, and gave up to the defendant all rights ever acquired by the plaintiff from said defendant, and demanded back from him the money-paid him as aforesaid; but the defendant wholly refused to receive or accept any propérty or rights acquired by the plaintiff from him, or to pay back the money aforesaid, and the plaintiff says the defendant owes him the sum of $850.</p> <p>“ And the plaintiff, further amending his said declaration, says that on or about the twelfth day of November, A. D. 1872, one George E. Sewell solicited the plaintiff to form a copartnership with him on equal shares, for the pretended purpose of carrying on the drug business in the city of Boston; that the plaintiff did in good faith enter into a copartnership with said Sewell, as he supposed; that the plaintiff was thereupon induced by the defendant and said Sewell to join with said Sewell, his pretended copartner, in the purchase from the defendant of the stock in trade and the fixtures contained in the store numbered 817 Washington Street, in Boston aforesaid, for the sum of $4500, $1700 thereof to be paid down in cash to the defendant, and the remainder thereof in the notes of the firm, secured by mortgage on the stock and fixtures; and the plaintiff says that the defendant and said Sewell falsely and fraudulently represented to the plaintiff that said Sewell had paid his half of said cash payment of $1700, to wit, the sum of $850; and he says that the defendant and said Sewell conspired together to induce the plaintiff to pay the defendant the sum of $850 in cash, it being the plaintiff’s half of said sum of $1700, and that, relying upon the false and fraudulent representations of the defendant and said Sewell, and supposing and believing the same to be true, he did pay to the defendant, in cash, the sum of $850, it being his half of said pretended cash payment of $1700; and that, relying upon the said false and fraudulent representations of the defendant and of said Sewell, and supposing and believing the same to be true, he, the plaintiff, paid or caused to be paid to the defendant the further sum of $200 ; and the plaintiff says that this count in tort is for the same cause of action as the first and second counts, and the third count, in said declaration, it being doubtful to which class said action belongs.”</p> <p>A demurrer to said declaration, as amended, was filed and sustained as to the first count contained in said amendment.</p> <p>A trial was had, and a verdict rendered for the plaintiff upon said two remaining counts, namely, the third count in the original declaration and the latter count in said amendment.</p> <p>Judgment was entered upon said verdict on May 13, 1885, which judgment remains unsatisfied.</p> <p>The defendants contended that the effect of said amendment to the declaration in the original action was to release them from liability upon said bond. But the judge ruled otherwise; and found for the plaintiff in the penal sum of the bond.</p> <p>If, upon the foregoing facts, the defendants, or either of them, were injured by error of law in said rulings, the finding as to them was to be set aside, and judgment was to be entered for the defendants, or such of them as were released from liability on said bond by said amendment, if such was the effect of the amendment; otherwise, judgment was to be entered upon the finding.</p>

Contract, against the Boston and Mystic Valley Railroad Company, Sydney P. Pratt, P. W. Locke, Stephen Dow, Nathan P. Pratt, and J. P. Thompson.

<p>It is no defence to a scire facias against the indorser of the writ in an action, that the plaintiff, in taxing his costs in that action, in which he was the defendant, fraudulently procured the allowance by the clerk of various sums to which he was not lawfully entitled.</p>

<p>A policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 189, against loss by fire upon certain premises, was issued to A., payable in case of loss to B., mortgagee, and providing that the insurer, within sixty days after statement or proof of loss, should either pay the amount of its liability or replace the property. After the policy was issued, A. conveyed the premises to C. A loss occurred, and within a month afterwards B. delivered to the insurer a proof of loss, signed and sworn to by C.; and, more than sixty days before bringing suit, B. delivered to the insurer another proof of loss, signed and sworn to by A. The insurer received and retained both of these proofs without objection, and, though twice asked in writing to inform B. if it required or wished for any further statement, made no reply. Held, in an action upon the policy, that the insurer had waived any defects in the proofs of loss, if any existed.</p> <p>If a policy of insurance is issued to “A., payable in case of loss to B., mortgagee,” and is in the form prescribed by the Pub. Sts. c. 119, § 139, containing the provision that, “ if this policy shall be made payable to a mortgagee of the insured real estate, no act or default of any person other than such mortgagee, or his agents or those claiming under him, shall affect such mortgagee’s right to recover in case of loss on such real estate,” a conveyance of the insured property by A. to C., without the assent of the insurer, although it may avoid the policy as to them, will not affect B.’S right to recover, after a loss.</p> <p>A policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, against loss by fire upon certain premises, was issued to “ A., payable in case of loss to B., mortgagee,” and providing that the insurer, within sixty days after proof of loss, should either pay the amount of its liability or replace the property, or might, within fifteen days after such statement, notify the insured of its intention to rebuild or repair the premises. A loss occurred, and, nine days afterwards, and after an agent of the insurer had examined the premises and appraised the loss, B., at the request of A., who was unable to do so, began to repair the premises. Immediate repairs were necessary in order to prevent further damage. The repairs were duly finished, and were reasonable and proper for the protection of the property. The insurer never notified the insured of an intention to repair. Held, in an action by B. upon the policy, that his acts in making repairs did not defeat his right to recover.</p> <p>A policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, against loss by fire upon certain premises, issued to “ A., payable in case of loss to B., mortgagee,” provided that the insurer might elect, when it was not liable to the mortgagor or owner, either to pay to the mortgagee the loss, or to pay the full amount secured by the mortgage, and to receive an. assignment of the mortgage and debt. A loss occurred, and B., at the request of A., who was unable to do so, made repairs upon the premises which were necessary for the protection of the property. The insurer denied its liability for the loss; and B. brought an action upon the policy. The insurer filed an answer, denying any liability on its part; and, seven months after the action was brought, made a tender to B. of the amount of the mortgage, principal and interest, and requested an assignment of the mortgage and note, which B. declined to make. Held, that the tender was not made within a reasonable time, and was not sufficient in amount.</p>

<p>The first case was an information in equity, filed on November 13, 1885, by the Attorney General, in pursuance of the direction of the General Court,* and alleging the following facts:</p> <p>The defendant is a corporation under the laws of this Commonwealth, owning and operating a railroad therein, with the rights and privileges, and subject to the limitations and restrictions, of railroad corporations, as provided by the general laws and statutes of the Commonwealth, and especially by the St. of 1867, e. 270, § 17.ϯ</p> <p>On April 1, 1882, the corporation had an authorized and paid up capital of twenty million dollars, consisting of two hundred thousand shares of the par value of $100 each, of which twenty-four thousand one hundred and fifteen were owned in part by the Commonwealth by absolute title, and in part belonged to various funds of which the Commonwealth had exclusive control, that is to say, the following funds: the war loan sinking fund, the bounty loan sinking fund, the Troy and Greenfield Railroad sinking fund, and the Massachusetts school fund.</p> <p>On April 1, 1882, the Commonwealth, in accordance with the provisions of the St. of 1882, c. 121, assigned to the defendant corporation said twenty-four thousand one hundred and fifteen shares of the capital stock of the corporation at the rate of $160 per share, and the corporation gave in exchange $400 in money and $3,858,000 in five per cent bonds of the corporation, payable in twenty years from said date, which bonds were issued under the provisions of said act for the purpose of purchasing said shares, and are still outstanding and owned by the Commonwealth ; but the corporation has established no sinking fund to meet the principal or interest of said bonds, and has paid such interest out of the earnings of the corporation. The corporation held said stock until September 27, 1883, and declared no dividends thereon, but declared dividends upon all the stock held by private stockholders at the rate of eight dollars per share annually.</p> <p>The Commonwealth has annually, however, since said transfer, included said stock in making up the value of the corporate franchise of the defendant for the purpose of taxation, has assessed the defendant thereon, and the defendant has paid the taxes in the same way and at the same rate as upon the remainder of its capital stock.</p> <p>On September 27, 1883, the corporation, by its directors, voted to distribute among its private stockholders seventeen thousand five hundred and eighty-eight of the shares of the capital stock received from the Commonwealth; and on December 27 following, it voted to issue certificates of stock for fractional rights under said vote of September 27. The votes so passed were in substance as follows :</p> <p>“ Voted, that the treasurer be authorized to distribute to private stockholders of record at the close of business on the twenty-seventh day of September, 1883, one share for every ten shares held by the respective stockholders other than this corporation; and to issue to holders of less than ten shares assignable certificates for fractional rights, convertible into stock at the rate of one share for every ten rights, if presented at the treasurer’s office on or before the twentieth day of December, 1883, in lots of ten or multiples of ten, the purpose of this vote being to distribute to the private stockholders seventeen thousand five hundred and eighty-eight shares out of the twenty-four thousand one hundred and fifteen shares of the capital stock which were purchased from the Commonwealth of Massachusetts.”</p> <p>“ Voted, that the treasurer may, with the consent of the finance committee, issue certificates of stock for fractional rights under the vote of September 27, 1883, distributing stock to the stockholders when presented in lots of ten or multiples of ten, and pay, after December 31,1883, such dividends thereon as the holders would have been entitled to if the record title to such shares had been completed before November 30, 1883.”</p> <p>All of said seventeen thousand five hundred and eighty-eight shares have been distributed under said vote, and six or more dividends of $2 per share have been declared and paid upon said shares from the earnings of the corporation. When the vote to distribute said shares was passed, the defendant had undivided surplus earnings as follows: on September 30, 1882, the end of its fiscal year, there was a profit and loss balance of $2,632,921.58, and on September 30,1883, this balance amounted to $2,798,795.17. The stock so distributed by vote of September 27, 1883, at $160 per share, the rate paid by the defendant corporation, amounted in value to $2,814,080, and was charged at that amount on the books of the corporation against the profit and loss balance ; but the market value of such stock as was sold on September 27,1883, was $167 per share. Beyond the $2,798,795.17 mentioned above, the defendant corporation had, on September 27,1883, no surplus earnings applicable to dividends, unless a certain fund, called the “improvement fund” on the books of the company, is considered as such. This fund was created as follows:</p> <p>On October 16, 1879, surplus earnings to the amount of $450,000 were set apart according to the following vote: that such earnings, “ amounting in the aggregate to four hundred and fifty thousand dollars, be and the same are hereby set apart and constituted a fund to be known as and called an 1 improvement fund,’ to be subject to such disposition and uses as may from time to time be determined by this board;"’ on October 28,1880, further surplus earnings to the amount of $300,000 were added to the fund, according to the following vote: “ October 28,1880. Voted, that the sum of three hundred thousand dollars be added to the improvement fund, and that the same, with any accretions already or hereafter made to said fund, shall be subject to such disposition and uses as may from time to time be determined by this board.”</p> <p>These two sums, with accretions thereon, made up the amount of the improvement fund on September 30, 1883, to the sum of $761,804.29: but there was no vote of the directors of the corporation authorizing the trustees to distribute such fund, or any part of it, to and among the stockholders *of the corporation, or authorizing them to use such fund for the purpose of making good any distribution of stock or other assets, or to reincorporate such fund into the profit and loss balance.</p> <p>The information further alleged that this stock- so distributed neither was nor represented earnings of the corporation, but was obtained by incurring a funded indebtedness; and that the distribution of said stock was not authorized by the St. of 1882, was gratuitous and without consideration paid by the stockholders or any of them, and was illegal and in violation of the rights of the Commonwealth under the statutes thereof, and especially of its right under the St. of 1867, c. 270, § 17, to purchase of the corporation its road and all its franchise, property, rights, and privileges, by paying therefor a sum therein fixed, and under the Pub. Sts. c. 112, § 61.</p> <p>The prayer of the information .was that the certificates of stock of said seventeen thousand five hundred and eighty-eight shares, or so many of them as have been distributed, be declared void; that the corporation be restrained from paying any dividend on said stock so distributed, and commanded to call in said stock; and for other and further relief.</p> <p>The defendant demurred to the information, and assigned as ■ causes of demurrer the following: “ 1. None of the stockholders of the defendant corporation, among whom the bill alleges that the shares of stock were distributed which the plaintiff asks to have declared void, are made parties to the said bill. 2. The plaintiff has not stated in its bill such a case as entitles it to any relief in equity against the defendant. 3. The plaintiff has not stated in its bill such a case as entitles it to the relief prayed for.”</p> <p>The SECOND case was a similar information, containing the same allegations as the first, and also alleging that the corporation, by its directors, intended to distribute the remaining six thousand five hundred and twenty-seven shares of the twenty-four thousand one hundred and fifteen shares received.</p> <p>The prayer was that said corporation be restrained during the pendency of the suit from making any distribution of said six thousand five hundred and twenty-seven shares ; and for further relief.</p> <p>The defendant demurred to this information, for want of equity.</p> <p>Hearing before Field, J., who reserved the cases for the consideration of the full court.</p>

<p>A. sent- from a distant State to B., the husband of his sister C., in this Commonwealth, where A. formerly resided, a sum of money, which B. deposited in a savings bank, subject to the order of A. upon him therefor. C. bought a parcel of real estate here, and obtained from B., and used in part payment for the same, a portion of A.’s money which he had so entrusted to B. C. then wrote a letter to A., which informed him of such purchase, and contained the following language: “I could not make the purchase until I prevailed after a hard struggle with B. to let me have a little of your money, which he gave me on these terms, that the deed should be made out in my name, that at my death all should be yours; all B. wants is a living out of it whilst he lives, and if you don’t approve of this letter, all the favor I ask of you is to give me one or two years, and I will pay you up your money with thanks, for so doing you will be the means of making me a home whilst myself and husband lives, and after that it is your property forever.” A. received this letter, but did not answer it. C. lived in possession of the estate for nearly eight years, when she died, leaving a will, by which she devised the estate to B for life, and, after his decease, to D., another brother, in fee, upon the conditions that he should pay the expenses of her last sickness and funeral, and should also pay to A. a certain sum larger in amount than that part of his money used as above stated. A. was, soon after-wards, informed of the contents of the will. B. went into possession of the estate, and held it until his death, twenty years after that of C. D., who had lent C. sums of money, and.had also paid the expenses of her last illness and funeral, then took possession of the estate. D. knew, at the time of the transaction, that a part of A.’s money was used without his consent by C. in paying for the estate. A., upon hearing of B’s death, returned to this Commonwealth, and brought a bill in equity against D. for the conveyance of the legal title to - the estate, having refused a tender by D. of the sum directed to be paid him in C.’s will. Hdd, that A., by his loches, had lost the right to assert any claim to the estate which he might have had otherwise; and that he was entitled only to the sum given him by the will of C., with interest from the time of B.’s death.</p>

<p>A bill in equity against A. was inserted in a writ dated April 20,1882. Issue was joined on October 2, 1883. In December, 1883, A. had the case set down for a hearing upon the merits, and insisted upon a hearing unless certain attachments of real estate made upon the writ should be postponed to certain conveyances which he wished to make. An agreement to this effect was made, and the hearing was postponed. On February 21, 1884, the plaintiff filed an amended bill, joining B. with A. as a party defendant. This bill charged no new matter of substance against A. On September 23, 1884, A. filed an application that issues of fact be framed, and that the same be tried by a jury. Process was not served upon B., and he did not appear as a party. On September 25, 1884, A. filed an answer to the amended bill, which differed from his answer to the original bill only in demanding a jury trial. Issue was joined on the amended bill and answer on November 21, 1884. Held, that A., by setting down the case for a hearing in December, 1883, had waived a right to a trial by jury ; and that the subsequent amendment did not avoid the effect of the waiver. Held, also, that the judge, to whom the application to have issues framed for the jury was made, did not, in the exercise of his judicial discretion, err in refusing to allow them to be framed.</p> <p>At the hearing of a suit in equity against A. and B. for conspiring to defraud the plaintiff, no exception lies to the admission in evidence, in behalf of the plaintiff, of declarations of B. relating to the conspiracy, if there is then evidence in the case of the existence of the conspiracy, and the plaintiff offers to produce further evidence, although B. has not been served with process, and has not appeared as a party defendant.</p> <p>The giving in evidence by one party of part of a conversation entitles the other party to introduce so much of the rest of it as relates to the same subject.</p> <p>The plaintiff filed interrogatories to a witness, whose deposition was to be taken on a commission. The defendant objected to each and every interrogatory for form and substance, and waived the filing of cross-interrogatories. The plaintiff then filed additional interrogatories, to which the defendant made the same objections, and also waived the filing of cross-interrogatories. The additional interrogatories were not answered. Held, that this fact did not entitle the defendant to have the deposition excluded.</p> <p>A bill in equity against A. and B. alleged that B., the owner of a mine, conspired with A. to call the price of the mine $200,000, and, in pursuance of such conspiracy, A. and B. made certain representations to the plaintiff, whereby he and A. agreed to buy the mine at that price, organize a corporation to work the mine, and transfer the mine to the corporation,' the stock to be distributed between the plaintiff and A. in proportion to their interests in the mine; that in’ fact B. was willing to sell the mine for $100,000, and received only this amount, the plaintiff paying for his interest at'the rate of $200,000, and A. receiving the difference. Held, that the bill did not allege such a scheme to defraud the public as to prevent the plaintiff from maintaining the bill against A.</p>

<p>If, in an action on the Pub. Sts. c. 175, to recover possession of certain premises, brought in a district court, which has jurisdiction of the cause and of the parties, judgment is rendered for the plaintiff, from which the defendant appeals to the Superior Court, and gives a bond, with sureties, to prosecute his appeal, and the action is entered and tried in the Superior Court, which affirms the decision of the district court, to which exceptions are taken, heard, and overruled in this court, and final judgment for the plaintiff is entered in the Superior Court for possession of the premises, it is not open to the principal or sureties, in an action upon the bond, to question the validity of the judgment on the ground that the appeal should have been completed by a recognizance instead of a bond.</p>

<p>Contract. Trial in the Superior Court, without a jury, before Rockwell, J., who, upon the defendant’s motion, ruled that the plaintiff could not recover upon the facts alleged in his declaration; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>CONTRACT, upon an account annexed, for goods sold and delivered. The case was referred to an auditor, who found for the plaintiffs. At the trial in the Superior Court, before Aldrich, J., the auditor’s report was the only evidence offered by either party. The judge directed a verdict for the amount found by the auditor, and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Information in equity, at the relation of owners of two estates in Boylston Street in the city of Boston, to restrain the ■city, its officers and agents, from enforcing an order, passed by the board of aldermen on August 3, 1885, as follows: “ Whereas in the judgment of the board it will be most conducive to the convenience and interest of the city to remove the sidewalk on Boylston Street adjoining the Common, it is therefore ordered that the superintendent of streets be directed to remove said sidewalk at the expiration of fifteen days from the passage of this order, and to pave that portion of the street now covered by said walk so as to conform to the adjoining part of said street, the expense thereof to be charged to the appropriation for paving.”</p> <p>The defendants demurred to the information, for want of equity. Hearing before Q. Allen, J., who reserved the case for the consideration of the full court. . The facts appear in the opinion.</p>

<p>A bill in equity, against A., B. his wife, and C., alleged that the plaintiff sold goods and lent money from time to time to A., who occupied a store and gave the plaintiff to understand that he was doing business there on his own account under the name of A. and Company; that, on a day named, A. owed the plaintiff a certain sum, being the amount of an open account and of certain promissory notes ; that afterwards all the goods in the store formerly occupied by A. were removed to another store, where they were attached on a writ in an action brought by the plaintiff against A. to recover the amount of said debt, and a keeper was placed therein; that, on the same day, B. brought an action against the plaintiff, and, at A.’s instigation, a keeper was placed in the plaintiff’s store; that C. thereupon claimed to be the absolute owner of said stock of goods attached by the plaintiff, notified the officer who served the plaintiff’s writ against A. to withdraw the keeper, and threatened suit if the plaintiff caused any goods to be removed from the store under his attachment, and the plaintiff then withdrew his keeper therefrom; that, at a date during the time of the sales and loans by the plaintiff to A., B. filed, by A.’s procurement, a certificate in the city clerk’s office, stating that she proposed to do business on her separate account under the firm name of A. and Company, at the store then occupied by A.; that the plaintiff was not informed of the filing of such certificate until after he had brought suit against A.; that the plaintiff was ignorant as to the title under which C. claimed to own said goods, but the plaintiff was told by C., just before the attachment of the goods by the plaintiff, that the whole amount of C.’s claim against the goods did not exceed a certain sum; that the value of the goods above said sum was more than sufficient to satisfy the claim of the plaintiff, who had often been assured by A. that C. held ample security other than said goods for all, or nearly all, of any debt due by A. to C.; and that A. held a lease of certain real estate, which included the store so occupied by him, for a term of years, “ which lease is unassignable by the lessee without the written consent of the lessor, and is terminable at the election of said lessor, if said lessee shall be declared insolvent, or any assignment of his property shall be made for the benefit of his creditors.” The prayer of the bill was for an account, for an injunction, and for general relief. Held, on demurrer, that the bill could not be maintained.</p>

<p>A devise in a will of certain property of the testator to two persons named, “ their heirs and assigns forever, and to the survivor of them and his heirs forever, in trust, to sell, dispose of, invest, and manage the same, and appropriate such part Of the principal and interest as they may deem best, for the aid and support of those of my children and their descendants who may be destitute, and in the opinion of said trustees need such aid,” cannot be upheld as a public charity, and is invalid.</p>

<p>A bill in equity was brought in one county to have a sale of real estate by an executor declared void. Subsequently, the defendant in the first case brought a bill in equity, in another county, against the plaintiff in the first case, to confirm the same sale. The second bill did not refer to the first, and the answer to the second bill pleaded the pendency of the first bill. The facts as they appeared from the bill and answer in the. first case were not identical with the facts as they appeared from the bill and answer in the second case. Held, that, even if the second bill could be treated as a cross bill, the two cases could not be reserved together for the consideration of the full court upon the bills and answers.</p>

<p>Bill in equity, by a member of the Odd Fellows’ Mutual Relief Association, in behalf of himself and the other members, against the association, Henry S. Lee, its treasurer, Addie E. Wetmore, the wife of Davis L. Wetmore, a deceased member of the association, and Abigail C. Wetmore, the mother of said Davis, to restrain the payment of a certain fund to said Abigail. The bill was amended by discontinuing against said Addie E., and making her a party plaintiff. Hearing before W. Allen, J., who dismissed the bill, with costs; and the plaintiffs appealed to the full court. The facts appear in the opinion.</p>

<p>The settlement in the Probate Court of an administrator’s account, showing that he has exhausted all the estate of his intestate in paying the expenses of the last sickness, funeral, and administration, is a good defence to an action brought against the administrator, upon his bond, although the administrator has suffered a judgment to be recovered against him before such settlement of his account.</p>

<p>The demandant in a writ of entry claimed title to the premises by a deed, which was executed and delivered before, but was not recorded until after, an attachment of the premises in an action against his grantor. The tenant claimed title under a levy and sale on an execution issued upon the judgment in the action after the demandant’s deed was recorded. The judgment was for a sum greater than the ad damnum in the writ. Held, that the judgment was erroneous, and could be avoided by the demandant; and that he was entitled to the premises.</p>

<p>A. directed his agent to look for a store for him, and to negotiate for a lease of it. The agent wrote a letter to A., stating that he had been looking at B.’s store, containing a description of the premises, naming the annual rent asked for a term of five years,' and inquiring whether the premises and amount of rent were satisfactory. A. telegraphed to the agent as follows : “If basement included at four thousand secure five years’ lease.” This telegram was handed by the agent to B., who verbally accepted .the offer. Held, that there was not a sufficient memorandum in writing of a contract to accept a lease within the statute of frauds, to enable B. to maintain an action against A.</p>

<p>A mortgage made by A. embraced four different parcels of land. Each of the first three parcels was described separately by a general description referring to the deeds, recorded in a certain registry, by which it was conveyed to him, with an exception of the lots embraced in such parcel which had been previously conveyed by the mortgagor. The fourth parcel was described as “ the land by me owned ” in a certain locality; “ for boundaries and description reference is made to deeds to me recorded in said registry; ” and the deed did not in terms except lots in this locality previously conveyed. In fact, the mortgagor had previously conveyed a portion of the fourth parcel by a deed which was not recorded until after the mortgage was recorded. Held, that such portion did not pass by the mortgage.</p>

<p>A testator, by his will, gave to his widow the use of his homestead and the income of $10,000 during her life. He directed in the third clause that the residue of his estate should be divided into four equal parts; one part he gave for the benefit of his grandson W., the son of a deceased son ; another fourth part he gave to his son G.; the other two parts he gave to trustees to pay the income to his two sons J. and F., in equal shares during their lives, and, on the deatli of either leaving children and a wife, the reversion was to go to such children and wife. The third clause then proceeded, “ but if they leave no issue, then my will is that said reversion in both cases or either case shall go to all my grandchildren in equal shares, as hereinafter provided in reference to other portions of my estate.” By the fourth clause, he directed that the reversion and remainder of the homestead and said 810,000 should be divided into four equal parts; he gave one part for the benefit of his grandson W., upon the same terms named in the third clause; one part to his son G. absolutely; and the other two parts in trust for the use of his two sons J. and F., “on the same terms as hereinbefore provided, .... and with the same disposition of the reversion and the remainder to their wives and children, if any children they should leave, and, if not, then equally to all my grandchildren that may be living.” Held, on the death, unmarried, of J., who survived the widow, that his share of the funds provided for in both clauses of the will should be divided equally per capita among the grandchildren of the testator who were living at the death of J.</p>

<p>A widow, with three children, whose only property was derived from her deceased husband, contemplating a second marriage, made a will, by which she bequeathed all her property received from her first husband to her three children. Her intended husband knew the contents of the will, and orally assented to its execution. The widow then married, and had a child by her second husband. Held, that the will was thereby revoked.</p>

Bill in equity, brought by the plaintiff, in behalf of himself and of all other creditors of Vital Roberts who might become parties thereto, against John Norris, Henry Norris, and Vital Roberts, alleging that, on April 28, 1882, Roberts was doing business in Lowell, and was possessed of certain personal property; that Roberts was indebted to twenty-five persons and firms named, including the plaintiff and the defendants Norris, in amounts specified; that, on said day,…

<p>Information in equity, filed October 3,1884, at the relation of a voluntary committee of citizens residing in the town of Hudson, against the executor of the will of Francis Brigham, his heirs at law, the Hudson Savings Bank, and the said town. The case was heard by Morton, C. J., and reported for the consideration of the full court. The facts appear in the opinion.</p>

<p>A railroad corporation is liable for personal injuries occasioned to a passenger by the unsafe condition of the platform at a station, along which he was walking, after alighting from a train, for the purpose of leaving the station to go to his home, if the platform at that place was fitted and intended for the use of passengers, or was so arranged as to invite them to use it, although the corporation was under no obligation to furnish such a platform, and the proper mode of egress from the station to the nearest highway was in an opposite direction to that in which the passenger was going; and the fact that he intended, after leaving the platform, to cross the railroad at a place where he had no right to cross it, does not make Mm a trespasser, or mere licensee, when and where he was injured.</p> <p>In an action against a railroad corporation for personal injuries occasioned to a passenger by coming into collision with a baggage truck, while walking along the platform at a station, after alighting from a train, the questions whether he backed against the truck, or was struck by it, whether he or the servant of the corporation who was pulling the truck was in the exercise of due care, and whether the platform was properly lighted, are for the jury.</p>

<p>A testator, by his will, provided that, at the death of his widow, two funds should be set apart in trust from the personal property; made a specific devise of a parcel of real estate; gave the trustee power to sell the residue, “ the proceeds of which is to pay the following legacies; ” and then gave three legacies of equal sums. There was a deficiency of the proceeds of the real estate, and a smaller deficiency of the personal property. Held, that the three legacies were specific legacies, and were not entitled to contribution from the personal property.</p> <p>A testator, by his will, gave his property in trust for the benefit of his widow during her life; and, after her death, $25,000 of the personal property was to be set apart for the benefit of the testator’s daughter during her life, and $12,000 for the benefit of the testator's granddaughter during her life. At the death of the daughter, certain real estate, which -was given to her for life, was given to a city in fee for charitable purposes, “ and also $20,000 added to it.” At the death of the granddaughter, $5000 of the $12,000 set apart for her use was given to the city for certain charitable purposes, and “ the other seven thousand dollars of this twelve ” was given to the same city for similar purposes. At the time of the widow’s death the personal property amounted to about $32,000, and it was managed by the trustee as a single fund, and proportionate parts of the income were paid to the daughter and granddaughter. The daughter died, and the fund depreciated so that it was not sufficient to pay the $12,000 directed to be set apart for the granddaughter’s use and the legacy of $20,000 to the city. Held, that the legacy to the city was a general legacy; that the fund directed to be set apart for the daughter became general assets of the estate upon her decease ; and that the personal property existing at the daughter’s death should be divided between the city and the granddaughter proportionally.</p>

<p>Bill in equity to restrain the defendant from removing three breast-wheels, which furnish motive power to its mills, and substituting therefor other wheels of a different construction, namely, turbine wheels. The case was heard by Holmes, J., upon the bill, answer, and agreed facts; and reserved for the consideration of the full court. The facts appear in the opinion.</p>

<p>Contract. Writ dated May 27, 1881. The declaration alleged that, on or about November 26,1880, the defendant agreed that, if the plaintiff would pay him $10,500, he would deliver to the plaintiff forty-five hundred shares of stock in the Napa Consolidated Quicksilver Mining Company; that the plaintiff paid said sum to the defendant, and received from him three thousand shares of said stock; and that the defendant refused to deliver the remaining fifteen hundred shares.</p> <p>The answer contained a general denial, and, in addition to other defences which need not now be stated, averred “ that, if any such contract or transaction as is alleged was ever made or entered into between the plaintiff and the defendant, said contract was illegal and void, and was a fraud upon other purchasers of said stock.”</p> <p>At the trial in the Superior Court, before Brigham, C. J., the evidence tended to show that, in May, 1880, the defendant, who at that time owned a large amount of stock in the Napa Consolidated Quicksilver Mining Company, and who assumed to be able to control the rest of the stock, made an arrangement with one Landers to assist him in selling the entire stock of the company. They employed the firm of Humbert and Company, mining engineers in Boston, consisting of Pierre Humbert, Jr. and John R. Humbert, as agents to sell the stock. They drew up a subscription paper, dated August 5, 1880, which was signed “ Napa Consolidated Quicksilver Company, per Humbert & Co., Agents,” the terms of which appear in the opinion. The plaintiff was the second subscriber on this paper, to the amount of $10,500, and Pierre Humbert, Jr. obtained his subscription by giving him an agreement, dated August 7, 1880, signed in the name of the “ Napa Consolidated Quicksilver Company, per Humbert & Co., Agents,” and which was in these words: “ This is to certify that A. W. Nickerson is entitled to fifteen hundred shares Napa Con. Quicksilver Co. above his subscription free of cost on placement of property.”</p> <p>There was conflicting testimony as to how far the scheme represented by the subscription paper of August was abandoned. There was evidence that at a certain time the defendant told Humbert and Company that the subscription paper must be withdrawn or abandoned, and that from that time forward shares in the capital stock of the company were to be disposed of instead of taking subscriptions for the purchase of the property of the company; and Pierre Humbert, Jr. testified that the plaintiff said to him: “ You need not expect me to take and buy any shares in the new arrangement, unless you carry out the old agreement. I won’t pay my money in unless that be understood.” The witness further testified, that he reported this to the defendant, and the defendant authorized him to see the plaintiff, and say to him, that, if he would pay immediately $10,500, the defendant would give him forty-five hundred shares of stock; and that he told this to the plaintiff. The defendant denied that he said so to Humbert. On November 22, the plaintiff paid $10,500, and received a certificate of three thousand shares of stock, together with $1200, the amount of dividends declared by the company from August 5 to November 26 on said three thousand shares.</p> <p>The jury returned a verdict for the plaintiff, in the sum of $5906.25; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Petition, under the St. of 1846, c. 167, § 13, filed January 29, 1885, by one hundred and nineteen legal voters of Boston for the appointment of three commissioners, who, upon due notice to the parties, might, if they should think proper, reduce the prices for the use of water fixed by the Boston Water Board.</p> <p>The case was heard by W. Allen, J., and reserved for the consideration of the full court; and appears in the opinion.</p>

<p>In an action against a town for an injury occasioned by an alleged defect in a highway, in the night-time, the plaintiff, a woman, testified that she was in a vehicle with her husband, and he was driving slowly. The husband testified that the night was dark and foggy; that he had a rein in each hand, was holding the reins tightly, and was driving down a hill as slowly as the horse could trot. There was other evidence indicating a greater rate of speed. Held, that the question whether the plaintiff and her husband were in the exercise of due care was properly submitted to the jury.</p> <p>If a person, driving along a narrow highway in a town, on a dark and foggy night, and using due care, turns his horse to the left, in order to avoid going down an embankment on the right of the road, which is not guarded by a railing, and comes into collision with a carriage approaching from the opposite direction, and which is on its proper side of the middle of the way, and is injured, the defect is the sole cause of the injury, and he may maintain an action therefor against the town.</p>

<p>The indorser of a promissory note became insolvent and absconded from the Commonwealth before the maturity of the note, and his address was known only to his counsel, a confidential friend, and his immediate family. Before he absconded he left his address with his counsel, who had charge of his affairs, and it was understood between them that his counsel should send him anything relating to his affairs that he deemed important, and that everything sent to his former place of business should be turned over to his counsel. When the note became due, the indorser had no place of business in this Commonwealth ; but his sign remained over the door of the store he occupied before he absconded, and his assignee under a voluntary assignment for the benefit of his creditors was there. The indorser had a domicil in a town of the Commonwealth other than that in which he did business, and this domicil he retained after absconding. The holder of the note knew of the insolvency and of the assignment, but did not know that the indorser had ceased to do business at his former place of business, or that he had a residence here, and, when the note matured, sent notice of its non-payment to the indorser’s former place of business. The indorser did not receive the notice, in consequence of his counsel’s telling the assignee not to send to him notices of protests. Held, that due diligence was used in giving the notice.</p>

<p>Tort for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. Trial in the Superior Court, before Brigham, C. J., who reported the case for the determination of this court, in substance as follows:</p> <p>There was evidence on the part of the plaintiff tending to prove the following facts:</p> <p>On October 13, 1882, the plaintiff, being then between six and seven years of age, while going to school and crossing the track of the defendant’s railroad in Natick, received the injuries complained of. At the time of the injury, the plaintiff had entered upon said track from a path, by which she had come from her father’s house on the north side of the track, and was intending to cross the northerly part of the track, a switch track, then to walk to the westward between the switch track and the north main track, and then to cross over a covered culvert, then over the main track where the same was planked between the rails, to a path on the south side, by the end of the depot platform, and leading diagonally over open ground to Washington Street, and thence to a school-house. The plaintiff had been accustomed, in summer and in winter, to go from her father’s house to school as she was going at the time of her said injury, and over the same places in a reverse direction in going from school to her father’s house. At the time of said injury, a little before nine o’clock in the forenoon, the plaintiff and her sister, who was then between twelve and thirteen years of age, were walking hand in hand on said path, and had entered upon the north side of said track, when they were struck by the defendant’s freight cars moving on said track.</p> <p>The path from said track northerly, for about half the distance to North Street, had existed and been used for twenty-five years, and the rest of said path had existed and been used from fifteen to sixteen years. The path had been used and travelled by persons in going to and from a factory and residences on the north side of the track, and by children in going to and from school over and across the track, on ordinary occasions to the number of as many as one hundred persons per day, and in much larger numbers when there were games or circuses on the vacant lot of land on the north side of the track. Of the persons thus using the path, and crossing to and from the same over the track, some of them passed towards the west, walking between the rails of the track and crossing to the south side of the track, and others of them, after leaving the path, or in entering upon it, in going or coming across the track, going in different directions, according to their convenience. The path was from three to five feet in width, well beaten, hard, worn, and smooth, declining about two feet in six as it approached the track. On both sides of the path there was a ridge from two to three feet in height, caused by dirt thrown up in clearing ditches on the side of the track. On one side of the path there was a cobble wall or stones, upon which dirt had been thrown up to the height of two feet; and there was a clear passage by the path through the ridge to the track. There was no fence or obstruction to passing across and over the track to and from the path. No objection was made by the officers or servants of the defendant to the crossing of the track to and from the path, and no public notices were put up, forbidding the same. Between the rails on the track, from the switch nearest to the path on the east, to the culvert on the west of the path, there was a well-worn and smooth space, trodden down by persons walking to and from the path, over and across the track; and there was an arm of Pegan Brook passing under the covered culvert, and under the defendant’s entire road-bed, to a freight-house yard on the north side of the track. Of said culvert, which is opposite a hand-car house on the south side of the track, a portion only is covered, and there was planking between the rails of the track. The defendant’s servants, in cleaning out the ditch on the north side of the track, did not put earth on the path at its entrance upon the track; but there was no evidence of any instructions so to do from the defendant’s officers, unless such instructions may be inferred from the acts of said servants as the same were from time to time performed. At night, freight cars of the defendant were left standing on the track, sometimes with openings between them opposite the entrance to the path from the track, and sometimes without such openings. The path was not used by the defendant’s servants or agents, or kept open for the defendant’s convenience; and said culvert was not used by the defendant in its business, excepting by its servants to stand upon or to walk over. The switching of cars at the freight-yard was done near the freight-house ; and, for more than a year prior to the plaintiff’s injury, one Nickerson, employed by the defendant to direct the switching of cars on the track, while thus acting near the path, on various occasions warned and prevented persons, who were about to walk to and from the path across the track, from so doing, until cars had passed the path, and, after such cars had passed, such persons crossed the track to and from the path, without being prevented or forbidden so to cross by Nickerson, or by any other of the defendant’s servants.</p> <p>On the morning of the plaintiff’s injury, Nickerson was not at said place; and on said morning three freight cars had been cut off at a crossing, by a flying switch, from a freight train of the defendant going west, the rest of which continued on the main track and passed the station before the three cars thus cut off had reached the flying switch. The three cars were switched upon a side track, and were moving thereon westward at the rate of from eight to ten miles per hour, the grade in that direction from said crossing being downward, with two brakemen thereon, one of whom was at the brake, (there being one brake only on each of said three cars,) at the rear end of the foremost of the cars, with his back toward the west, and did not see the plaintiff, or her sister who was with her. The other brakeman was at the hind end of the rear car, and was not able to see what occurred in front of him. The freight train was from fifteen to thirty minutes behind its regular time in arriving at Natick on said morning. While the three cars were moving along towards the entrance from the track upon the path, the plaintiff and her sister came along the path to the track, looked around, but neither saw nor beard the approach of said three cars, or of any cars excepting an express train on the southerly main track, which passed the station while they stood in the path; and, after the passing of said express train, the plaintiff and her sister went from the path upon the track, to cross the same and go to the west, between the rails of the switch track and the north main track, when they were struck by the foremost of said three cars before they reached the space between the rails. There was no evidence that the view of the track from the path to the eastward was obstructed.</p> <p>The judge ruled that, upon the plaintiff’s evidence, the action could not be maintained; and directed a verdict for the defendant.</p>

<p>Tort for personal injuries. Trial in the Superior Court, before Q-ardn&r, J.,,who reported the case for the determination of this court, in substance as follows:</p> <p>The plaintiff, a boy four years and twenty-three days old, lived with his parents in Athens Street, South Boston, near the corner of C Street, Athens Street being the next street northerly of and parallel to Broadway. He left home on the afternoon of July 29, 1882, in company with his sister Nellie, a girl eleven years of age less a month and five days, to buy candy at a shop on C Street, but on the other side of Broadway from where the plaintiff lived; and while on their way home, and crossing Broadway, the plaintiff was knocked or fell down, and was run over, in Broadway, by one of the defendant’s cars, driven and controlled by its agents, coming from City Point and on its way to Boston, causing the injuries complained of.</p> <p>Broadway runs about east and west, and C Street about north and south. On the southwesterly corner of Broadway and C Street is a cigar shop; on the northwesterly corner is a drug store, kept by one Gleason; on the southeasterly corner is a grocery; and on the northeasterly corner is a shoe shop, kept by one O’Hara. A cross walk, six feet wide, substantially in the line of the sidewalk on that side of C Street, runs across Broadway from the corner on which is the cigar shop to the corner on which is the drug store. The other corners are also connected, respectively, with cross walks.</p> <p>The defendant is a corporation operating lines of street railway from Boston proper to City Point in South Boston, one of which runs through Broadway, a public street, where there are two tracks. The cars going from Boston run upon the southerly track, which is called the outward track ; those coming to Boston run upon the northerly track, which is called the inward track; so that cars meeting pass each other to the right. At and approaching the point of intersection of Broadway and C Street, both streets are substantially level and straight for a long distance. Another line of the defendant’s cars running to City Point, known as the Dover Street line, runs through Fourth Street (the next street south of and parallel to Broadway) to said C Street, thence northerly through C Street to Broadway, turning into the outward track in Broadway, and thence to City Point.</p> <p>The report, after stating that the foregoing facts were not in dispute, and that the evidence in regard to the circumstances attending the accident was conflicting, set forth the testimony of the witnesses in full.</p> <p>The following is a synopsis of the evidence in behalf of the plaintiff, so far as it is material to the points decided.</p> <p>Patrick Collins testified that the plaintiff was his son; that, on the evening of the accident, he started out with his sister Nellie to get some candy; that Nellie assisted his wife in the care of the children; that his wife took in sewing, and Nellie, for the most part, brought the sewing and carried it back.</p> <p>Ellen Collins, the wife of Patrick, testified that she had no one but Nellie to help about the house and children; that Nellie took the children to walk, and had taken them beyond the corner of Broadway and C Street; and that Nellie was kind and attentive to the children.</p> <p>James McDermott testified that he was by Gleason’s drug store, when he heard a shout; that he looked and saw the plaintiff, about five feet from the horses’ heads, on the left-hand rail; that the next thing he noticed was the boy’s being thrown down; that he should say it was the off forward foot of the off horse that threw him down; that he then looked at the driver, and found that he was leaning in a listless attitude, putting on the brakes; that he should think at the time that the driver was either looking down the street or sidewise; that he supposed the boy went under the forward wheel and under as far as the hind wheel, and was dragged a considerable distance, say about twenty feet; that he should say the boy was on the cross walk; tha't the driver was .leaning so that his right leg was toward the dashboard, and his back toward the witness; that the driver, after the boy was knocked down, put on the brakes; that the horses were within the rails; that, when the brakes were applied, the car was going about three miles and a half an hour; that, when he started for the car, he saw a young girl about opposite the middle of the car.</p> <p>On cross-examination, this witness testified as follows: “ The first shout came from the sidewalk, and the next shout, I think, from the driver. The first shout attracted me; saw the boy before I heard the second shout. Just as I heard the shout I threw up my eyes towards the horse car, and then saw the little boy. He was upon the nigh rail, that is, the farthest rail of the nearest track to me. I saw him run across in front of the nigh horse, and get struck by the off horse. I did n’t see anybody with the boy at that time. I didn’t see anybody run across in front of the boy, and I did n’t see anybody run across the track behind him. The driver’s back was toward me; I did n’t see his face. I saw the boy ahead of him on the farther rail from me, running right across.”</p> <p>Frank McCue testified as follows: “ When the accident occurred, I was on the south sidewalk of Broadway, about five feet from the corner of C Street, near the cigar store, intending to cross Broadway to Gleason’s corner. I saw a little boy and girl. When I first saw them, they were crossing in front of me, and passed right along over upon the crossing, and the girl had hold of the boy’s hand. They were going across Broadway from the cigar store toward Gleason’s drug store. When I first saw them, they were just stepping off the curbstone to get on to the crossing. I looked after them for a little while to see where they went to. The little boy had hold of the girl’s hand, and he went as far as the horse car, and the little girl let go of the boy’s hand. I saw the horse car coming down there, and it was going at the usual rate, that is, at a trot. I could not tell how fast they were going, how many miles an hour. This little boy happened to run right around, and he was struck. I could n’t tell whether it was the car or the horses struck him; I am not sure. The horse car, when I first saw the children, was almost up to the second crossing, the one in front of O’Hara’s, coming from City Point. The two children continued to walk, till I suppose the little girl got frightened. She was afraid the pole might strike her, or something, and she let go of her brother, and ran off. The pole was almost right up side of her, when she let go of her brother. They were on the crossing when she let go. They had kept right straight on the crossing from the time they had stepped from the curbstone until she let go of the boy. I did not hear any shout. The horses were between the tracks, in the regular place for them, going at a slow trot. The girl had hold of the boy’s left hand. The boy was next to the horses. I saw him fall, and saw him under the wheels, and helped lift the car off. At the time I saw him fall, the horses were still trotting. The boy was in under the car, and I don’t know, — I suppose some one hollaed to the'driver, I could not tell who it was, that there was a child in under the car. When the child was in under the wheels, I took no notice of the driver; I saw him put on the brake. When the driver first began to put on the brake, the child was seven to eight feet from the crossing in under the wheels. When the little girl let go of the child, I could not tell what she did, or where she went. I noticed her coming along with her brother, and I noticed the two in separating from one another; the girl ran around upon the crossing; I never saw where she went to. The pole was almost up to her, almost side of her. When she let go of the child, I could not tell whether she was between the rails on which the car was coming, or in front of the horses. She was going across on the crossing when she let go. I should think the pole was not more than two feet from hér. I saw how the driver was standing with respect to the horse car as the car came down Broadway just prior to the accident. The best way I could explain it is that he was standing kind of sideways. The driver was standing in the usual place with his right side against the car dasher, and his face turned to the left, looking down C Street, towards Fourth Street. He was standing kind of sideways. I don’t know when he changed his attitude; I don’t believe he changed it until he found out there was a young one under the wheels. He applied his brake as soon as he found out that there was a child in under the wheels.”</p> <p>On cross-examination, he testified: “ The little boy did not pull away from the sister; it was the sister pulled away from the boy. At the time the girl pulled away from the little boy, they were on the crossing, on the outward track that leads down to City Point, between the outward rails, and the car was coming on the inward track. When the little girl pulled away from the little boy, she ran away and left him. The little boy tried to get out of the way as well as he could. The pole of the car was pretty near up side of the boy when the girl pulled away. He ran right around after his sister pulled away from him; right around in front of the horses. I don’t know whether the horses or the car hit him, but he was hit, or he went under the axle of the car, on the farthest side from me. He ran right around the horses’ heads. He curved out around, didn’t run straight. The car was coming so close upon him, he tried to go in front of the horses, and in doing that he had to curve around to his left.”</p> <p>On re-direct examination, the witness testified: “ The child remained on the cross walk until the car came up to him, and then ran around the pole to try to escape from it. In running around the pole, I should think he left the cross walk; he must have left the cross walk, because the pole was almost upon the cross walk.</p> <p>William J. Lowry testified as follows: “ I am a police officer of the city of Boston. I remember the accident to the Collins boy at C Street. It occurred about twenty-five minutes past seven o’clock; it was daylight, the sun had not set. I was on the southerly side of Broadway on the sidewalk, perhaps one hundred an'd twenty or one hundred and thirty feet from the cigar store in the direction of Boston, walking toward Boston. My attention was attracted by some person hollaing quite loud, apparently from across the street and back of me, on Gleason’s side of Broadway. I turned around and looked in that direction. I saw an open car come to a stop suddenly, and I saw people rushing toward the off side from me. The car was in the act of stopping ; the driver seemed to be putting on his brake hard. I did not see the child that got run over at that time when I looked around, nor the Collins girl. There was quite a rush all over the street towards the car, so I could not specify any particular person. I did n’t see any little girl in the vicinity of the horses. I measured the distance from the point of the car pole to the crossing; it was forty-seven feet; found the car and pole to be by measurement thirty-five feet long, and made calculation that the rear end of the car was about twelve feet over the crossing. I measured to the side of the crossing nearest to the car. When I first saw the child, it was directly between the wheels, or the axles of the car, underneath, in the middle of the track; I should think about twenty-four feet from the crossing. The car was apparently coming to a standstill when I looked around. I could not judge how much farther it went; being in a direct line with it, I could not judge exactly, but it apparently was stopping. I noticed the driver braking up his car hard at the time I looked around. I think the child was run over before I looked around.”</p> <p>William P. Carroll testified as follows: “I remember when the accident happened to the Collins boy. I was on the northerly or right-hand side of Broadway, coming to the city, — the same side that Grleason’s apothecary store is on; about seventy-five feet towards Boston from Grleason’s store, going towards C Street. I think it was children in the street playing after the band car that attracted my attention. I know that I looked up, and when I looked up, I saw a girl and a boy crossing from the tobacco store to the apothecary store. I saw a car coming; I saw there was going to be an accident; I didn’t see any way that the accident was going to be avoided. I saw the driver, holding his reins, and looking as if he was looking back the way he had come; he might have been looking down a street, but it looked to me then, taking it all in an instant, that he was looking to his left, up Broadway. I immediately jumped and yelled and ran. The accident, the running over of the boy, the turning on of the brake, and all, was in an instant, as I saw it, — all in a second. When I saw this boy and girl in danger of being run over, it seemed certain they were on the cross walk. When I first saw them, that horse car may have got across the crossing at O’Hara’s, and it may not; all this I saw so quick, and everything at once, that I don’t want to say the car was on the O’Hara crossing. I think myself the car might have got across the crossing, and was between the two crossings. What I saw was an accident going to occur, and that position of the car, and the position of the children, forced that conclusion on me ; there had to be an accident, and I saw no way to avoid it. After I shouted, I heard nothing; only to get to the car. The horses of the car were in the usual place in the centre of the track; they were between the two rails, going in an ordinary trot. I saw the little child when he fell down, and saw him struck by the horses, and the girl just getting away from him. I thought the two children would get under the car; that is the way it looked to me. The little boy was struck by the horse; the other child just escaped. The child falling, the putting on of the brake, and all, was as quick as it could be. The child might have fallen a little bit before, but I don’t want to swear to it. As I have testified before, I believe it all occurred right in an instant, and it is impossible for me to decide which occurred first. When I looked up, I am positive the driver was as I have described, and after the time of the accident I talked to him about it. His position was as I have described it, looking up to what had passed by, — a band car. There was certainly a band car in that vicinity; it came up 0 Street, and went up Broadway toward City Point. There were a number of children in the street; boys and girls together.”</p> <p>On cross-examination, the witness testified: “ I saw the boy get struck by the horse nearest me, — the right-hand horse as the driver was driving. The little girl had just escaped it. She was toward Gleason’s. She ran across right in front of him, as it appeared to me. She had just got off the rail running towards Gleason’s as the little boy was struck. Both were together when I first saw them. At the time the off horse struck this boy, they were just together, and the boy got struck and the girl just escaped it. I saw them separate. I saw them, as I thought, having hold of hands then; I did n’t see them when they took hold of hands. I believe the girl was on the left-hand side of the boy. I saw them with their hands together, and when the boy was struck, I saw the separation right there at the instant the boy was struck. I cannot really state positively which was nearest the horses. I think they separated just as the boy was struck, a little prior; probably it might be a little before the boy was struck. When they separated, they were four feet, or whatever the distance might be, a small distance from the horses’ heads.”</p> <p>Nellie Collins testified as to the buying of the candy, and then starting for home; and that when she started to cross Broadway toward Gleason’s she had hold of her brother’s hand. Her testimony proceeded as follows: “ When I first stepped down on the cross walk, I turned around and saw the band car. I continued walking along on the cross walk. I saw the band car before I saw the one coming from City Point. I saw the latter when it got to O’Hara’s crossing. The horses were on O’Hara’s crossing. This was after I had looked back at the band. We were near the rail the cars come up on from Boston when I saw the horses at O’Hara’s crossing, and walked along. I had hold of Eddie’s hand. Next noticed the horses between the two cross walks. As we walked over the cross walk, Eddie was next to the horses.”</p> <p>She further testified that she heard some one holla, and left Eddie and ran across, because she thought she was going to be knocked down herself. “ The horses’ heads, when I let go of him, were pretty close to us; we were then between the four rails. I do not know who it was I heard shout, or the direction it came from. I let go of Eddie just as soon as I heard it. I was not playing with Eddie, or fooling, or playing with the other children, running around, or doing anything of that kind. I was on the cross walk when I let go of Eddie. I cannot tell whether Eddie was knocked down by the horses or the car.”</p> <p>On cross-examination, she testified : “ Eddie pulled away from me across in front of the horses, before I ran. We were stopping between the outward and the inward tracks. I thought I could get across before the car came. I heard some one holla, and that scared me. I let go of Eddie and left him there.”</p> <p>In answer to a question whether she ran around in front of the horses, the witness answered, “Yes.” Later on, in her cross-examination, she said she did not know whether she ran in front of the horses or in the rear of the car.</p> <p>Mrs. Rhodam B. Eckett testified as follows: “ I started to cross Broadway on the crossing from Gleason’s to the cigar store, and at the same time I saw two children enter the cross walk from the opposite side of Broadway at the cigar store, — a boy and a girl; and I turned around to see if the road was clear; I had already stepped off the sidewalk, I believe; and I stepped back to look up Broadway towards the Point. As I stood looking, my attention was arrested by a shout; the car was coming then; I noticed the car, but I had full time to cross, only that I thought I saw my husband there. The shout attracted my attention, and as I turned, I saw these two children still on the cross walk and the car quite close to them; and the little boy seemed to drag back, and the little girl started ahead, and the little boy made a short hesitation, and then started too. I stood and held my breath. I certainly thought the child would clear the horses, as he did. He cleared the horses, and I could not say if it was the hind foot of the horse or the end of the car that struck the child. The child cleared the horses’ heads.. Then I saw no more. I first saw the car when I first turned up to look if the place was clear. It was a little distance above the upper cross walk, O’Hara’s cross walk. The horses were not more than the length of the horses above O’Hara’s crossing when I looked up. The horses, in my estimation, were trotting as fast as they always do on Broadway. The two children, when I first saw them, were entering on the cross walk, on the cigar-store side. I noticed the children before I noticed the horse car. The children when I first saw them were on the cross walk. When I next saw them they were on the cross walk, I should judge, almost between the two car tracks at the time I heard the shout. I think they were just about entering the track that the car was on, when the little girl let go of Eddie. As near as I can estimate, when the shout was, they were between the two tracks; and when she let go, they were on the cross walk about at the first rail the car was coming down on. The horses were inside the rails as usual. The driver ‘did not commence to put on the brake till after I heard the shout; he commenced before Eddie was down. When the driver commenced to put on his brakes, I should judge the child was just passing in front of the horses. The girl ran forward and cleared the horses, and I thought the little boy would too. She ran towards Gleason’s corner. She did not run back to the other side of the car.”</p> <p>On cross-examination, this witness testified: “ When I looked up, the car was up at O’Hara’s, about the length of the horses, I should say, from the cross walk. Then I saw these little children coming across. I had plenty of time to cross. The car was coming at what, I suppose, you call a trot. My attention was for a moment diverted from the children, by looking for my husband; then I heard a shout, and I looked up, and I saw the ■little boy seem to pull back from the little girl. When that happened, I should think he was just entering on to the last car track. They had crossed the first car track, I am sure, and I should judge they were just entering the second one, the one nearest me, the one the car was on; the shout was what made me look up. I saw that scene in front of the horses, the little boy dragging back. I should judge they were about three feet from the horses’ fore feet; I don’t know how far from their heads. The little boy seemed to hesitate for a minute; the little girl had n’t let go of him then ; the hesitation seemed only momentary ; when she let go and ran, he followed. Then they had n’t hold of hands. The little girl did not run in a curve, and go around the horses’ heads; I could not say about the boy; she cleared the horses, and I think the boy too; he may have swerved a little, but the little girl did not run off the cross walk. I am sure it was not the front feet hit him, nor the pole. He had got across the two horses. It was either the hind feet of the horse or the step at the side; it was an open car. He had cleared the front feet of the horses when he was struck.”</p> <p>Jennie Mullaly testified that she had been a school teacher for seven years in the public schools of Boston; that Nellie Collins came in September, 1882, and left in June, 1883; that she was a child of ordinary intelligence, and was promoted from her room with the other children in whose class she was; that she was sent for absent girls quite often, and was very bright about errands, and very quick.</p> <p>In view of the opinion of the court, it seems unnecessary to state the evidence in behalf of the defendant in detail. It tended to show that the children were not crossing the street on the cross-walk; and the driver and the conductor of the car testified that, after the plaintiff passed the horses, he went several feet towards the sidewalk, and then turned back and was struck by the forward end of the car.</p> <p>At the close of the evidence, the defendant asked the judge to rule that, on all the evidence, the plaintiff was not entitled to recover, on the ground that he had not shown that he was in the exercise of due care, or that his custodian exercised such care, or that the defendant was negligent. The judge declined so to rule, and submitted the case to the jury, under instructions not excepted to. The jury returned a verdict for the plaintiff in the sum of 113,000.</p> <p>If, upon the evidence, the case was properly submitted to the jury, the. verdict was to stand ; otherwise, to be set aside.</p>

<p>If a servant, who is engaged in backing, while standing at his horses’ beads, a loaded van, is directed by his master to mount the van and drive it under a gateway, over which there is a sign, and then to back down, the master being familiar with the practice of so driving vans, and the servant, though an experienced teamster, never having driven under the gateway before, and their relative positions are such that the master has better means of observation than the servant, whose attention is devoted chiefly to the management of his horses, and of seasonably appreciating the dangers attending the act, and the servant, in following the directions of the master, is injured by coming in contact with the sign, the servant may maintain an action against the master for such injury.</p>

<p>At the trial of a petition for the assessment of damages occasioned to land of the petitioner’s intestate by the discontinuance of a street, it appeared that the intestate acquired title to the land under a deed from the petitioner. The petitioner was asked, on cross-examination, if, at any subsequent time before the death of his intestate, he owned said land, or had received a deed of it from any person; to which he answered in the negative. He was then asked- if he did not, after the execution of the deed by him to his intestate, and about the year 1880, give a deed of said land to one R., and in said deed covenant that he was the sole owner thereof; to which he replied that he did not give such a deed, and that, if he did, it was a mistake. The respondent, for the purpose of contradicting the petitioner’s testimony, then offered in evidence the record of a deed of said land from the petitioner to R., given in 1880, and covenanting that the grantor was the sole owner in fee of the land. No objection was made that the original deed was not produced. Held, that the evidence offered was properly excluded.</p> <p>At the trial of a petition for the assessment of damages occasioned to land by the discontinuance of a portion of a street, the petitioner contended that he had acquired by prescription a right of way over a passageway throughout its entire length from said street to a parallel street. The judge refused to rule, as requested by the respondent, that, in estimating the damages, “ no part of the discontinued portion of said street except that on which said passageway abutted should be taken into account.” Held, that the respondent had no ground of exception.</p> <p>At the trial of a petition for the assessment of damages occasioned to land by the discontinuance of a portion of H. Street, there was evidence of the existence of a passageway from H. Street to T. Street, a parallel street; that the petitioner’s land abutted on H. Street and on a portion of the passageway; and that gates and other barriers at different times had been erected across the passageway at places between the two streets, or at the T. Street end; but no witness testified that any gate or other barrier had ever been placed in that part of the passageway between H. Street and the rear of the petitioner’s premises, or that his use of the way had ever been interrupted. The judge instructed the jury, that, if they found that the petitioner, as the owner of the land, had acquired a right of way to and from H. Street over the land which abutted upon the discontinued portion of H. Street, “ it was immaterial whether he had a right to pass to and from T. Street or not.” Held, that the respondent had no ground of exception.</p> <p>At the trial of a petition for the assessment of damages occasioned to land by. the discontinuance of a portion of a street, the petitioner contended that he had acquired by prescription a right of way over a passageway leading from said street to a parallel street. There was evidence.of an open and adverse use of the way under a claim of right for more than twenty years by the owners of the land described in the petition; and there was evidence for the respondent that the owners of the servient estate had from time to time interrupted the use of the way by the petitioner and his predecessors in title. After the evidence on both sides was closed, the respondent asked the judge to rule that there was not sufficient evidence to warrant the petitioner in going to the jury. Held, that this request was rightly refused.</p> <p>A petition for the assessment of damages occasioned to land by the discontinuance of a portion of H. Street alleged that the land was situated on the northeasterly side of H. Street in a certain city, (describing it by metes and bounds,) “ together with a passageway upon the northerly side of the premises.” At the trial, the petitioner contended that he had acquired by prescription a right of way over a passageway throughout its entire length from H. Street to a parallel street. Held, that proof of a right of way only to and from H. Street was not inconsistent with the allegation in the petition.</p> <p>If a private way is laid out for the use of the tenants of an estate abutting thereon, the owner of another estate also abutting thereon may acquire a right of way therein by adverse use, although his use is of the same character as that of said tenants, and does not interfere with their use.</p> <p>On the issue whether a right of way had been acquired by the petitioner by adverse use, the respondent requested the judge to rule, that, if the way was laid out for the benefit of an estate other than that of the petitioner, and was used by the tenants of sucii estate, and by^those having dealings with them, and was also so used continuously, with the knowledge and consent of the owner, by all persons having occasion to pass through the same, including the petitioner, the petitioner could not acquire a right of way over the same by adverse use. The judge said that, if by the terms “ knowledge and consent ” was meant an express consent or permission, as distinguished from a silent acquiescence in or failure to object to an asserted right by the petitioner, the court would grant the request; otherwise, it would be refused. Held, that the respondent had no ground of exception.</p> <p>If the owner of land, abutting on a street in a city, has acquired a right of way by adverse use over a strip of land at the side of his lot, which extends to the street, he may maintain a petition against the city for the assessment of damages occasioned by the discontinuing of the street opposite such strip of land, although the owner of such strip owns the fee in the part of the street which is discontinued.</p>

<p>Action, alleged in the writ to be in contract or tort, in two counts. The second count, which was the only one relied on, was as follows: “ And the plaintiff says that he is the executor of the will of Charles W. Freeland, late of said Boston, deceased, testate; that the said Charles W. Freeland did, in his lifetime, to wit, on June 15, 1883, for value received from said defendant corporation, make his certain writing obligatory, and deliver the same to the defendant, whereby he promised said defendant corporation to pay to it or its order the sum of $24,000 on the fifteenth day of June, 1884, with interest semiannually; and that said Freeland did deliver unto said defendant- corporation, as collateral security for said loan, to be held and safely kept by them, certain property of which he was the owner, to wit, fourteen shares of the capital stock of the Amoskeag Manufacturing Company, a corporation organized and doing business in the State of New Hampshire; that said Freeland did also give to said defendant corporation, at their request, full and special ■ authority to sell said collateral, and apply the proceeds towards payment of said note, in case of default in the payment thereof by him, and that said defendant corporation did then and there, in consideration of such pledge and delivery by said Freeland, promise and undertake faithfully to hold and keep said stock, and redeliver the same to the plaintiff on the satisfaction and payment of said note; that, on or before the maturity of said note, said plaintiff, in order to provide for the payment of said note at maturity, had effected a valid contract for the sale of the said stock at the rate of $2000 per share, said stock to be delivered and assigned on or after maturity of said note, to wit, June 15, 1884; and that, before the maturity of said note, said defendant corporation notified the plaintiff of the loss by them of said note, requesting a new acknowledgment of said indebtedness, which the said plaintiff gave. And the plaintiff sa,vs that afterwards, to wit, on the fifteenth day of June, 1884, he was ready and willing to pay the said indebtedness, and receive back the stock aforesaid, and offered to redeem the same, and demanded the same of the said defendant corporation, but was then informed by said defendant that said certificates also had been by them lost, and that it was out of their power so to return either said note or said certificates of stock, and said defendant refused and neglected, and for a long time continued to refuse and neglect, to return said certificates of stock to said plaintiff, or permit him to redeem the same; that, by reason of said loss, refusal, and neglect, said plaintiff lost his said sale and the benefit thereof, and was deprived of his right to sell the same as he could have done, and that the market value of said stock was on June 15, 1884, $2000 per share; that since said date of maturity, to wit, on or about September, 1885, said stock was found by said defendant corporation, and said debt to said defendant discharged, and said stock received back by said plaintiff, and sold by him at a greatly diminished figure, being the best price that he could obtain, to wit, at $1950 per share, whereby the estate of said testator has suffered the loss of $700, which the plaintiff says was caused solely by the neglect of said defendant to safely keep said property so pledged as collateral as aforesaid. Wherefore he says that the defendant owes him said sum of $700, and interest thereon from the twenty-fourth day of October, 1885.”</p> <p>The defendant demurred to the declaration, on the ground that it did not set forth a legal cause of action. The Superior Court sustained the demurrer, and ordered judgment for the defendant; and the plaintiff appealed to this court.</p>

<p>A bill in equity, brought by a corporation organized and doing business in Connecticut, against a corporation organized under the laws of that State, and its stockholders, alleged that the plaintiff was a creditor of the defendant corporation ; that the defendant corporation had done business only in Massachusetts, and had no property which could be come at to be attached or taken on execution in an action at law; that the other defendants resided in Massachusetts; that in paying for their shares of stock, at the organization of the corporation, they paid partly in money, and partly in property at a valuation, which valuation was greatly in excess of the real value of the property, and this fact was known to them ; and that under the laws of Connecticut, independently of any statutory or penal liability, a person subscribing for stock, or becoming a member of a corporation as an original shareholder, becomes liable to the corporation to pay for the shares the par value thereof, which liability is an asset of the corporation, forms actrust fund for the creditors, and may be enforced by any creditor of the corporation. The bill further alleged that the individual defendants were the organizers of the corporation, and its officers, and were guilty of a breach of trust in not requiring a full payment of the capital stock. The prayer of the bill was, that the value of the property paid in by the individual defendants be ascertained; and that they be ordered to pay to the corporation the amount of their respective deficiencies, so that the same could be paid to the plaintiff in satisfaction of his debt. Held, on demurrer, that the bill could not be maintained.</p>

<p>In an action of contract against a warehouseman, for a failure to keep safely goods entrusted to him, if it appears that the goods were returned in a damaged condition, and that the damage was caused by the fall of the warehouse, the burden of proof is on the plaintiff to show that such damage was caused by the negligence of the defendant or his servants.</p>

<p>Connivance by a husband at an act of adultery, committed by his wife with one person, on the ground of which a libel for divorce filed by him is dismissed, is not an absolute bar to a libel for divorce for a prior act of adultery, committed by her with another person, and not known to the husband at the time he brought the former libel.</p>

Bill in equity, filed Jane 24, 1885, against the city of Newton and Royal Gilkey, assignee in insolvency of the estate of William H. Stewart, alleging the following facts : William H. Stewart, on… Held: and they voted to accept his offer of twenty cents on the dollar in full settlement of their respective claims.

Replevin of six United States mail wagons. Writ dated October 27,1881. After the former decision, reported 136 Mass. 515, the defendant, on March 5, 1884, remitted all but nominal damages, and thereupon, on March 10,1884, moved, in the Superior Court, for judgment for a return of the replevied property.

<p>When the statute of limitations would be a bar to a direct proceeding by the original owner of personal property, it cannot be defeated by indirection within the jurisdiction where it is law. A title which will not sustain a declaration will not sustain a plea. Field, J., dissenting.</p> <p>Two counters, which belonged to A., were, without his knowledge or authority, placed by B. in a shop built by him on his land, nailed to the floor, and used there. Four years afterwards, B. mortgaged the premises to C., who, eight years later, foreclosed the mortgage, and then sold the premises to D., making no mention of the counters. A., who two years subsequently first learned where the counters were, took them from D.’s possession. Held, that D. could maintain replevin against A. for the counters. Field, J., dissenting.</p>

<p>Tort for diverting and obstructing a watercourse, and thereby preventing water from flowing through the plaintiff’s land. Trial in the Superior Court, before Staples, J., who ruled that the plaintiff could not maintain his action ; ordered a verdict for the defendant; and, at the request of the parties, reported the case for the determination of this court. If the ruling was erroneous, the verdict was to be set aside and a new trial granted; otherwise, the verdict was to stand. The facts appear in the opinion.</p>

Contract, in two counts, against Charles S. Whitmore and George B. Brown. The first count was upon a probate bond, executed on May 25, 1875, by Whitmore as principal, and by George Phipps and Brown as sureties, in the sum of $40,000, and conditioned for the faithful performance by the principal of the duties of trustee under the will of Ellen K. Stone.

<p>■ Bill in equity, filed October 4, 1883, under the Pub. Sts. c. 119, § 94,* by a mutual fire insurance company, against the holders of certificates of its guaranty capital stock, to redeem and cancel said stock. Hearing before Field, J., who reported the case for the consideration of the full court, in substance as follows:</p> <p>The plaintiff was incorporated by the St. of 1848, c. 124, by the name of the Lowell Traders and Mechanics’ Mutual Fire Insurance Company, “ for the purpose of insuring dwelling-houses and other buildings, and personal property, within the Commonwealth, against loss by fire, with all the powers and privileges, and subject to all the duties, liabilities, and restrictions, set forth in ” the Rev. Sts. cc. 37,44. From the time of its incorporation until 1854, the company carried on business, in pursuance of its charter, as a mutual fire insurance company only.</p> <p>By the St. of 1854, e. 76, the plaintiff was authorized, on receiving from the subscribers thereto a guaranty capital of $50,000, to be paid in within two years, to “make insurance against fire and against maritime losses, otherwise than on the mutual principle; with all the powers and privileges, and subject to all the duties, liabilities, and restrictions, set forth in” the Rev. Sts. c. 37, “ and in all subsequent acts relating to insurance companies.” The act also changed the name of the company to the “ Traders and Mechanics’ Insurance Company.”</p> <p>The last-named act was duly accepted by said company, at a meeting thereof duly called and held on May 8, 1854; and at an adjournment of the same meeting, on June 19, 1854, the following by-laws, among others, were duly adopted by said company, as an inducement to make subscriptions to said guaranty capital:</p> <p>“ Article 4. The directors shall cause books to be opened for the subscription of a guaranty capital of fifty thousand dollars ($50,000), which shall be divided into shares of one hundred dollars each, and certificates issued therefor in such form as the directors shall prescribe. And, before such books are opened, the directors shall determine the rate per centum of the semiannual dividend by vote, which shall be duly recorded; and the rate then determined shall not be liable to be reduced without the written consent of each and every shareholder.”</p> <p>“Article 10. The funds of this company arising from premiums or assessments, or in any other manner, shall be appropriated to the payment, first, of expenses; second, of losses by fire; third, dividends on the guaranty capital, and to make good any reduction in the amount of said capital; and fourth, return premiums and dividends on policies upon the mutual principle, as they shall expire.</p> <p>“Article 11. In case the guaranty capital shall, from any cause, be reduced, the directors shall assess such sums as may be necessary to restore the same, upon the members of the corporation, in the manner required by the Revised Statutes to pay losses.”</p> <p>“ Article 19. These by-laws, with the exception of the fourth article, may be altered by the votes of two thirds of the legal voters present at any annual or other legal meeting of the company, notice of the proposed alteration having been set forth in the call for such meeting; but the fourth article shall never be altered without the written consent of each and every holder of shares of the guaranty capital.”</p> <p>It was voted “ that the same shall take effect when the capital stock shall be paid in, and that the directors be authorized to receive subscriptions to said capital stock at such times and in such sums as they may determine, and'invest the same according to the provisions of the statutes.”</p> <p>The following by-laws were also adopted at said meeting:</p> <p>“ Article 1. Each person or corporation insured in this company upon the mutual principle shall be a member thereof, and subject to the by-laws and regulations of the company.</p> <p>“ Article 2. The annual meeting of the members of the corporation for the choice of directors shall be holden at the office of said company, on the second Monday in December, in every year, at 2 o’clock P. M. Ten members shall constitute a quorum. All questions shall be decided by a majority vote, except such as shall be otherwise specially provided for in these by-laws. Each member shall be entitled to as many votes as he has policies upon the mutual principle, but no one member shall be allowed more than five votes. Special meetings of the corporation may be ordered by the president, or five directors, and shall be so ordered whenever twenty of the members request it in writing. Notice of all meetings of the corporation, signed by the secretary, shall be given in two or more newspapers published in Lowell, seven days at least before the meeting.”</p> <p>The directors of said company, at a meeting duly held, subsequently to the adoption of said by-laws and votes, voted “ that the semiannual dividend to be paid on the guaranty capital be not less than four, nor more than five per cent, as the directors may from time to time determine.”</p> <p>None of said by-laws or votes have ever been altered or repealed. After the passage of the vote above named, the directors in behalf of the company, and in pursuance of the authority, and upon the terms, conditions, and inducements of the said bylaws and votes, obtained from various individuals subscriptions for, and the due payment of, the sum of 150,000 as a guaranty capital. From 1854, the time of receiving said guaranty capital, until November 8, 1880, the company transacted insurance business upon both stock and mutual principles. It issued two forms of policies, one showing -on its face that it was a stock policy, and the other showing on its face that it was a mutual policy.</p> <p>By the St. of 1870, o. 232, the company was “authorized to increase its guaranty capital, by an addition thereto of the sum of fifty thousand dollars, tobe divided into shares of one hundred dollars each.” This act was duly accepted by the company, and, in pursuance thereof, the company, in 1870, received subscriptions for, and payment by various persons of, the additional guaranty capital, upon the same terms and conditions and inducements as it received the original capital, as above stated.</p> <p>In 1854, when the company obtained its original guaranty capital, it had outstanding risks to the amount of S3,729,834, on' which it had received cash premiums to the amount of $21,483.58. It owed for losses ascertained and unpaid $2422. Its assets consisted of premium notes of policy holders, to the amount of $274,372.33, subject to assessment to twice that amount, and it had cash and other property valued at $6902.96.</p> <p>When the additional guaranty capital was obtained, the corporation had a surplus in cash assets of about $184,000, and premium notes to about $325,000, liable to assessment.</p> <p>Since receiving its original guaranty capital, the company has always kept separate accounts of the business of the stock and mutual departments, and of the receipts and expenditures in each, and none of the assets or earnings of one have been applied to payment of losses or dividends of the other. It has paid from the earnings of the stock department semiannual dividends to the holders of the stock in the guaranty capital, amounting to not less than eight per cent per annum upon the par of said capital, from the time the same was paid in up to July 1, 1883, with the exception of a few months, (the exact time and amount of the omission, if material, to be ascertained by a master in chancery,) and the company has at various times paid from said earnings semiannual dividends of five per cent on said stock.</p> <p>At a meeting of the company on November 8,1880, it was voted, that the company discontinue issuing stock policies on and after November 30, 1880.</p> <p>On January 18, 1882, the company, at a meeting duly called for that purpose, voted to discontinue its stock department, and to redeem its guaranty capital. The validity of this vote is not disputed. The holders of stock of the guaranty capital were not present nor represented at said meeting, and never consented to such discontinuance or redemption. Before the filing of this bill, the company cancelled all policies issued and outstanding in the stock department.</p> <p>At the time of the filing of this bill, there was a surplus of more than $40,000 above the par of its capital stock, accumulated from the earnings of the stock department above said dividends and all expenses, and remaining after the cancelling of said policies. (The exact amount thereof, if material, is to be ascertained by reference to a master.) And in the mutual department there were outstanding policies to the amount of $17,621,921, the cash premiums received thereon being $126,682.98; and the company held premium notes of policy holders to the amount of $253,865.96, liable to assessment to twice that-amount, and cash and other property to the credit of the mutual department to the amount of $881,478.98.</p> <p>The judge found as a fact, if competent, that many of the defendants, the present holders of shares in said capital stock, paid a premium therefor above the par value thereof, and such shares have for many years commanded, and been sold at, a premium in the market.</p> <p>By neither of the acts authorizing said capital, nor by any bylaw or votes of the company or its directors, or otherwise, except so far as appears by the facts and statements herein and the public laws relating to said company, were any time or terms fixed or agreed upon for the liquidation, redemption, or cancel-ling of said capital stock.</p> <p>None of the earnings of- the stock department have ever been paid as dividends to the holders of policies in the mutual department, or applied to payment of losses under policies issued by the mutual department, but the mutual department from time to time purchased shares of stock in the stock department, amounting in the aggregate, to the time of filing this bill, to three hundred and twenty-nine shares, which shares were held as assets of the mutual department, and the mutual department drew dividends thereon from the earnings of the stock department at the same rate as were paid to other stockholders; and the salaries, rents, and other general expenses of the company were divided between and borne by the two departments, in proportion to the amount of cash premiums received in the respective departments, up to the time of the discontinuance of issuing policies in the stock department, since which time the expenses have been divided as the directors have ordered. No policies were ever issued in the mutual department for a longer period than five years.</p> <p>By the Boston fire of 1872, the guaranty capital was impaired to the extent of $31,757.45. No assessment was made upon the mutual policy holders to make good this loss; but the same was immediately made good by premiums received from stock policies issued.</p> <p>The company paid the tax assessed on account of its guaranty capital, and charged the amount so paid in its account of the business of the stock department.</p> <p>The plaintiff contends that it should be authorized to repay to the parties entitled thereto the amount of the guaranty capital, together with such additional sum as said amount, if lent with safe collateral security, would have earned from the date of the filing of its bill up to the date of the final decree in the case.</p> <p>The minority stockholders contended that the legal effect of the payment of the capital was to constitute the subscribers thereto members of a combined company, each with distinct and independent rights; that under the St. of 1854, therefore, the corporation became a stock and a mutual company, or “ combined companies,” each of which had a legal right in the joint management of the affairs of the corporation.</p> <p>It was also contended, that, on the true construction of the St. of 1854 and the by-laws subsequently adopted, the capital was to be devoted to a business in which the stock department or company was the only real insurer, and that the capital was paid in on a trust for the exclusive benefit of the_ holders; that, by law, the guaranty capital, so called, was not in the nature of a debt of the mutual department of a mutual insurance company, but that the capital and surplus were the assets of a stock company, to be distributed on settled principles of equity; that in so far as the by-laws of the corporation purport to guarantee the principal or dividends thereon, or to authorize assessments of mutual policy holders to pay losses on the stock plan, or to make good a deficiency in the guaranty capital, or to exclude holders of shares from being members of the corporation, they were void.</p> <p>It was also contended that the facts did not prove a contract between the parties, or between the mutual company and the original subscribers to the capital; that a decree ought to be entered dissolving. The association; and that the assets of the stock company, including all the reserved or surplus earnings thereof, should be distributed to the stockholders, according to their several shares.</p> <p>Other stockholders contended that the acts, by-laws, votes, and facts above set forth constituted a contract between the corporation and the stockholders, whereby the corporation was bound to pay the stockholders, respectively, four per cent of the par value of their shares semiannually forever; and that, if it were relieved from the obligations of that contract, it should pay said stockholders the fair value of such contract to them, namely, the value of a perpetual annuity equal to $8 for each share in the capital stock; or, if they were not entitled to such compensation, then they were entitled to have distributed among them, pro rata, the full value of all the assets of the stock department, and such further assets, if any, as had been improperly diverted therefrom, or applied to the benefit or expenses of the mutual department.</p> <p>The case was reserved for the determination of the full court upon the questions whether the plaintiff was entitled to redeem its guaranty capital stock, and, if so, upon what terms and conditions, and generally upon all questions of law arising upon the report; it being agreed by the parties, that, if the court should decide, upon the facts found, that the plaintiff was entitled to redeem and cancel its capital stock, and the terms and conditions or principles on which this might be done, then, if any other facts than those found were necessary to be determined in order to apply these terms and conditions or principles to the subject matter, the cause might be referred to a master for that purpose, if the full court or a single justice should approve such a reference.</p>

<p>A bill in equity cannot be maintained to restrain a gas company from digging up, without the consent of the municipal authorities, the surface of the highway in front of the plaintiff’s premises for the purpose of laying gas pipes, if the injury caused to the plaintiff is not of such a serious, permanent character that it cannot be adequately compensated in damages.</p> <p>An information cannot be maintained, in the name of the Attorney General, at the relation of a private individual, to restrain a corporation from digging up the surface of the highway in front of his premises for the purpose of laying gas pipe-, in the absence of evidence that a real and substantial injury exists or is threatened, and that the municipal authorities have refused relief, upon application to them, under the Pub. Sts. c. 106, § 77.</p> <p>An information, in the name of the Attorney General, which is not brought ex officio, but at the relation of an individual, for the protection of his private interests against the acts of a corporation, cannot be maintained for the purpose of restraining the corporation from the further use of its corporate powers, and from usurping public franchises to which it is not entitled.</p> <p>If a suit in equity does not present a proper case for equitable interference, the court will not usually entertain it, although the defendant makes no objection to the jurisdiction of the court.</p>

<p>A trustee under a will filed an inventory in the Probate Court, in which certain shares of stock in a corporation were valued at a certain sum. Subsequently he wrongfully sold the shares, and converted the proceeds to his own use. In an action against a surety on his bond, it appeared that the market value of the shares on the day the same were transferred on the books of the corporation was less than the valuation in the inventory; but it did not appear what the market value was on the day they were sold, or what amount the trustee received for them. Held, that the trustee could- not object to being charged with the valuation in the inventory.</p> <p>A trustee under a will, which gave him the power to sell and dispose of the trust estate, and to reinvest the proceeds, from time to time, as he should deem advisable, filed an inventory in the Probate Court, in which certain shares of stock in a corporation were valued at a certain sum. He then sold the shares for the purpose of converting them to his own use, and appropriated the proceeds. In his subsequent accounts he represented the shares as in his possession. Held, in an action on his bond, that a surety thereon could not object to being charged with the market value of the shares at the date of the writ, with all dividends declared thereon to that time.</p> <p>A testator, by his will, gave certain property in trust for the benefit of two children; and provided that, during their minority, interest was to be added to the principal, and that, after that period, each child was entitled to the income of his portion, and, under certain circumstances, to the principal or a part thereof. When the elder child became of age, the trustee rendered an account of the property held by him for the benefit of both children, including accunnilations to a certain amount; and, two years and a half afterwards, a settlement was made between the trustee and the elder child on the basis of this account, and the income of his proportionate share, with its proportionate accumulation, from the date of his majority to the date of the settlement, was paid to him, together with a certain sum out of his share of the principal as accumulated. In fact, the trustee had before these settlements wrongfully sold and appropriated all of the trust property. Held, in an action against a surety on the trustee’s bond, that the surety was chargeable with interest upon the elder child’s share of the principal, with its share of added accumulation from the date of his majority to the date of the writ; and that a rest was properly made as of the former date. Held, also, that the surety was chargeable with interest on the younger child’s similar share from the date of the elder child’s majority; and that a rest should be made at the date of the younger child’s majority, which was before the date of the writ.</p> <p>If a trustee misappropriates the trust property, and, in an action against a surety on his bond, the surety is charged with the full amount of the trust property to a period later than the misappropriation, a sum equal to commissions which the trustee would have earned if the estate had been properly administered should be deducted, and also the amount of taxes paid by the trustee, although they were paid to conceal his embezzlement.</p> <p>If a trustee sells securities belonging to the trust estate, and converts the proceeds to his own use, in an action against a surety on his bond interest should be computed on the amount converted from the day it is found to be due up to the day of issuing the execution, without making a rest at the date of the writ.</p>

Tort for personal injuries received by the plaintiff while in the defendant’s employ, through the alleged neglect of the defendant to provide safe and suitable machinery and tools, and to give suitable and proper instructions as to the manner of doing the work required to be done by the plaintiff at the defendant’s mill.

<p>A mortgage of land was given to secure the payment of a certain sum of money in instalments at different dates, for which promissory notes were given. A. held two of the notes by gift from a person, to whom they were indorsed by the mortgagee, with an oral agreement to hold the mortgage in trust to secure them: The mortgagee afterwards transferred the other notes and the mortgage to B., who had notice of this agreement. B. received payment of his notes, surrendered them to the mortgagor, and afterwards assigned the mortgage to A. Interest was paid on the two notes held by A., and the mortgage was recognized as outstanding by the mortgagor, who conveyed the land to C. by a deed which alsd referred to a mortgage as outstanding. Held, that A. could maintain a writ of entry to foreclose the mortgage against 0., brought within twenty years of such payment of interest, although the notes were barred by the statute of limitations.</p>

<p>In an action for the conversion of the waters of a spring, it appeared that the plaintiff owned the right, reserved by the grantor in a deed of land, of “ the spring of water on said premises; ” and that a stream of water running on the land was the outlet of a spring a short distance off on the- adjoining land, and was finally lost in the ground. The plaintiff’s evidence tended to show that there was no other spring; and he introduced the evidence of persons who had long lived in the vicinity of the stream and known of it, that it was called a spring. Held, that this evidence was admissible.</p> <p>In an action for the conversion of the waters of a spring, it appeared that the plaintiff owned the right, reserved by the grantor in a deed of land, of “ the spring of water on said premises ; ” and that a stream of water running on the land was the outlet of a spring a short distance off on the adjoining land, and was finally lost in the ground. The plaintiff offered in evidence the declarations of his deceased grantor, made on the land when he conveyed to the plaintiff, that he intended to carry this stream of water off the land, and that he called it a spring. Held, that this evidence was inadmissible.</p> <p>In an action for the conversion of the waters of a spring, it appeared that the plaintiff owned the right, reserved by the grantor in a deed of land, of “ the spring of water on said premises ; ’’ and that a stream of water running on the land was the outlet of a spring a short distance off on the adjoining land, and was finally lost in the ground. The grantee of the land testified for the plaintiff that there was no other water or spring on the land at the time lie purchased it, or during his ownership, than this little stream of water; and that he understood, at the time he purchased, that this stream was the water reserved in the deed to him. Held, that the defendant had no ground of exception to the admission of this evidence.</p> <p>If a deed of land reserves to the grantor, his heirs and assigns, “the spring of water on said premises, and the right to lay down, repair, and rebuild aqueduct and pipe, and convey said water off from said premises, together with the right to fix said spring and do any other act or thing necessary for taking off said water,” and a grantee of the land subject to the reservation puts in an aqueduct, which diverts the water continuously, an owner of the right reserved to the grantor is entitled, in an action against such grantee for an interference with his rights, at least to nominal damages.</p> <p>At the trial of an action for the conversion of the waters of a spring, by means of an aqueduct, if the ruling of the judge requires the jury to find that the defendant put in the aqueduct and withdrew the water without the plaintiff’s consent, the defendant is not entitled, after the charge to the jury is finished, to single out particular circumstances tending to show consent, and require the judge to comment on them specially.</p>

<p>A. sent a postal card, signed by him, to B., containing the following: “ Please send us pice of counter screen like draft.” Upon this card was a draft of a counter screen with the measurements thereof. Held, in an action by B. against A. for the price of the-goods named, that the writing presented a case of incurable uncertainty ; and that the judge properly refused to submit it to the jury to determine whether the letters “pice ” meant “piece ” or “price.”</p>

Complaint, dated November 19, 1883, under the mill act, Pub. Sts. o. 190. Trial in the Superior Court before Staples, J., who allowed a bill of exceptions, in substance as follows: The respondent was incorporated by the St. of 1791, c. 32, as a navigation company, and was authorized to maintain dams across the Connecticut River at Turner’s Falls. It built a dam soon after 1792.

Trustee process. E. C. Lyman and C. E. Shipman, co-partners under the firm name of Lyman and Shipman, were summoned as trustees of the principal defendant. The officer’s return upon the writ stated that he made four successive services upon the trustees, on August 1, 8,15, and 22, respectively.

<p>Trustee process. Writ dated June 24, 1884, and served on the Northampton Institution for Savings and the Trustees of the Smith Charities, summoned as trustees, on the same day.</p> <p>It appeared, from the answer of the Northampton Institution for Savings, that, on July 2, 1879, it received a deposit of $500 from the clerk of the Trustees of the Smith Charities; that a book was issued therefor entitled “ Wm. M. Hayden, payable to the order of the Smith Charities; ” that interest was paid to said clerk as follows: on March 26, 1884, |50.25, and on June 6, 1884, |25; and that the officers of the institution were unable to say whether the deposit was made directly or indirectly for the benefit of the defendant.</p> <p>The answer of the Trustees of the Smith Charities, filed on October 30, 1884, was as follows:</p> <p>“ And now the Trustees of the Smith Charities, summoned as trustees of the defendant in the above action, come, and for answer say that at the time of the service of the writ upon them they had not in their hands or possession any goods, effects, or credits of the defendant. And of this they submit themselves to an examination upon oath.</p> <p>“ And further answering, these Trustees say that they are incorporated under the laws of this Commonwealth to carry into effect the provisions of the last will and testament of Oliver Smith, Esquire, deceased; that by the provisions of said will material to this case, a sum of money, to wit, the sum of five hundred dollars, was lent by the Trustees of said Smith Charities to the principal defendant, and that to secure the payment of said sum with interest, said defendant gave said Trustees his promissory note, and deposited in the Northampton Institution for Savings the sum of five hundred dollars as collateral security for said note; that the principal defendant, having complied with the provisions of said will, the Trustees of the Smith Charities, in pursuance of the provisions of said will, voted to cancel and give up said note to said principal defendant; that this vote was passed by them before the service of the writ upon them in this action.</p> <p>“ Wherefore they say that at the time of the service of said writ upon them they had not in their hands and possession any goods, effects, or credits of the defendant.</p> <p>“ Wherefore they pray that they may be discharged.”</p> <p>In answer to the interrogatory, filed by the plaintiff, “ Do you now claim any right, title, or interest in said five hundred dollars, now in the hands and possession of said Northampton Institution for Savings?” the following answer was made:</p> <p>“ The note given the Trustees of Smith Charities has never been surrendered to said William M. Hayden; if the vote and record of said Trustees of Smith Charities, as set forth in their answer filed October 30, 1884, and hereto annexed, without any surrender of the note to the principal maker, is such an act as releases all our claim to said money or on said note, then we do not claim any interest in said money, except as we may hold it for said William M. Hayden, or as trustees in this suit. A printed copy of said will is hereto annexed. We also annex a copy of said order of Trustees of Smith Charities, and a copy of said note and indorsements. Said Trustees of Smith Charities further state, upon a more careful examination of said note and indorsements, that there is still due on said apprentice note six and dollars, as interest from April 1, 1884, to June 27, 1884.”</p> <p>The copy of the vote and record annexed was as follows:</p> <p>“ June 24, 1884. Voted to surrender the apprentice notes of Lewis A. Day and William M. Hayden, Charles H. Waite and Orson P. Smith, they having paid the interest punctually, and the Trustees being satisfied that they will make good use of the money in the future.”</p> <p>The copy of the note was as follows:</p> <p>“$500. Northampton, June 27, 1879.</p> <p>Value received, I, William M. Hayden of Deerfield, promise to pay to the Trustees of the Smith Charities, or their order, five hundred dollars, in five years from date, or on demand, at the option of said Trustees, at any time within said five years, with interest annually. William M. Hayden.”</p> <p>The indorsements on the note showed that interest on the same had been received as follows: July 22,1880, $30; March 8, 1882, $30; March 26, 1884, $50.25, interest to April 1, 1883; June 6, 1884, $25, interest to April 1, 1884.</p> <p>Annexed to the answers of the trustee was a copy of the will of Oliver Smith. . So much of the will as relates to the question in this case is thus stated by Chief Justice Bigelow, in Smith Charities v. Northampton, 10 Allen, 498, 500 : “By a clause in the testator’s will, he made provision for the selection of certain boys by the trustees, to be bound out as apprentices on certain terms and conditions by him specified, until their arrival at the age of twenty-one years, and in relation to the boys thus selected and bound out he made this further provision: 1 Each of said boys who shall have been bound out as aforesaid, and who shall apply therefor at any time within six years after his arriving at the age of twenty-one, and who shall have conducted himself well and faithfully during his apprenticeship, and also until the time of such application, shall, at the discretion of said trustees, receive a loan of money from the income of this fund, not exceeding five hundred dollars, for a term not over five years, on his furnishing good and satisfactory security for the repayment of the same at the expiration of said term, with the interest thereon annually. And if at the end of the said term the interest shall have been punctually paid, and the conduct of the borrower shall have been such as to satisfy the said trustees that he will in future make a good use of the money, the obligation shall be cancelled and given up without the payment of any further sum than the interest aforesaid.’ ”</p> <p>In answer to further interrogatories, the trustee answered, that, at the time of the deposit, it was understood that interest was to be paid thereon ; that interest was received from the savings institution and applied to the payment of interest on the note; and that, at the time of the service of the writ in this case, there was due from the savings institution, as interest on the deposit, the sum of $27.19.</p> <p>At the hearing in the Superior Court, before Staples, J., both trustees were discharged; and the plaintiff alleged exceptions.</p>

Indictment alleging that the defendant, on September 12, 1885, “together with divers other evil-disposed persons to the number of five and more, whose names are to the said jurors unknown, at Northampton .... unlawfully, riotously, and routously did assemble and gather together, to the disturbance of the public peace, and being so then and there assembled and gathered together, in and upon one Mary Better, then and there unlawfully, riotously, and routously did make an…

<p>Complaint to the District Court of Eastern Hampden, for an unlawful sale of intoxicating liquor to one Pease, on May 27, 1885, at Monson. The record showed that the district court heard the complaint on June 26, 1885, adjudged the defendant guilty, and sentenced him; from which sentence he appealed “ to the Superior Court, next to be holden at said Springfield, within and for the county of Hampden, on the fourth Monday of September next.” Trial in the Superior Court,-before Knowlton, J., who allowed a bill of exceptions, in substance as follows: ■</p> <p>Pease was called as a witness for the government, and testified that, on May 27, 1885, he bought one half-pint of whiskey of the defendant, paying therefor the sum of twenty-five cents. At the request of the district attorney, the witness produced a small bottle of fluid, which he said was the same whiskey which he bought of the defendant, in the bottle in which it was delivered ; and it was admitted in evidence, against the objection of the defendant. It did not appear where said bottle of whiskey had been kept since said May 27. Pease also testified that he was hired and paid to buy said liquor, in order subsequently to testify thereto to convict the defendant, if possible ; that he and one Alberty were together engaged in the business of “spotting ” alleged liquor sellers in Monson; and that Alberty was present at the time said liquor was bought. Alberty testified substantially as did Pease upon all matters material herein.</p> <p>The district attorney, in his argument to the jury, used the following language: “ Where did Pease get that bottle of liquor? Mow there is the bottle of liquor that Pease got there, and we have brought it here for you to see and try. There the liquor is; now where did he get it?” The bottle with its contents was sent out with the jury, who returned a verdict of guilty.</p> <p>After verdict, the defendant filed a motion in arrest of judgment, “for the reason that upon the record of said case it is not now and never has been properly in said court, and that the court has no jurisdiction thereof.” This motion was overruled; and the defendant alleged exceptions.</p>

<p>An indictment for obtaining money by false pretences alleged that the defendant, at a time and place named, falsely represented to A. that the defendant was treasurer and secretary of a corporation established in another State; that the capital stock of the corporation was $400,000; that $200,000 worth of said stock had been subscribed for and paid in in cash, which was chiefly invested in real estate where the corporation was located; that the stock was worth, and was selling for, a certain sum per share, at said place; and that the defendant, on a later day named, by a letter written by him and received by A. on said day, falsely represented that the amount of capital stock subscribed for, paid in, and invested as aforesaid was $192,000, instead of $200,000, as previously stated by • the defendant. At the trial, the government introduced evidence tending to prove the oral statements alleged to have been made by the defendant; and, to prove the modification of these statements alleged to have been made subsequently by letter, introduced a letter written by the defendant to A., the material part of which was as follows: “ The issue of additional stock in the ” corporation “will not be made till” a day named, “as we want to dispose of about $8000 more stock; we have sold $192,000 and want to make it $200,000, • then one half of the capital stock will have been issued. About two thirds of this stock has been taken by old stockholders at par, but part of the stock has sold as high as ” a certain sum “ per share. The new stock does not receive any dividend until ” a day named. The judge refused to rule, as requested by the defendant, that there was no evidence to prove the representation as alleged in the indictment, or that there was a variance between the allegation and the proof as to the letter; and instructed the jury, that, if they should find that the statement in the letter was a correction of the oral statement previously made as to the amount of stock issued, then stated to be $200,000, they would be authorized to convict the defendant, and that the meaning of the letter was for them, but, if it related to a new issue of stock, they must acquit. Held, that the defendant had no ground of exception.</p> <p>Under an indictment for obtaining money by false pretences, a conviction may be had for falsely representing that the stock of a corporation was selling at a certain price, but not for falsely representing that it was worth a certain price.</p> <p>An indictment alleging that, by reason of false representations made by the defendant to A.', as to the stock of a corporation, A. was induced to deliver to the defendant, at a certain town in this Commonwealth, a cashier’s draft for the payment of a sum i amed, is supported by proof that A. sent the draft to the defendant in another State, being directed so to do by a note written by the defendant and left at A.’s place of business in this Commonwealth, whether A. sent the draft from this Commonwealth by the hand of an agent of the. defendant, or deposited it in the mail.</p> <p>An indictment alleged that A., induced by certain false pretences made by the" defendant, (which were set forth,) delivered to the defendant a certain sum of money, in exchange and in payment for a certain number of shares of stock. A bill of exceptions, alleged by the defendant and allowed by the presiding judge, which purported to set out all the evidence material to the questions raised, stated that there was evidence tending to show that A. was induced to send a check, “ a copy of which is inserted in said indictment,” to the defendant. No copy of a check was inserted in the indictment. Held, that a ruling, requested by the defendant, that the evidence would not warrant a conviction, should have been given.</p>

<p>At the trial of a complaint for unlawfully selling intoxicating liquors to a minor, it is error to rule that a sale of such liquors by a servant in his master’s shop, and in the regular course of his master’s lawful business, is prima facie a sale by the master, although the sale is an illegal sale.</p>

<p>At the trial of a complaint for unlawfully selling intoxicating liquors to a minor, it is error to rule that a sale of such liquors by a servant in his master’s shop, and in the regular course of his master’s lawful business, is prima facie a sale by the master, although the sale is an illegal sale.</p> <p>At the trial of a complaint for unlawfully selling intoxicating liquors to a minor, the person to whom the sale was made may testify that he was twenty years and eight months old at the time of the sale.</p>

<p>At the trial of a complaint for keeping intoxicating liquors with intent to sell the same contrary to law, the evidence tended to prove that the defendant kept lager beer with intent to sell the same to be used as a beverage, and to be drunk on the premises. The judge instructed the jury, that “ a license of the sixth class gave to the party holding the same the right to keep for sale and to sell intoxicating liquors for three purposes only, namely, medicinal, mechanical, and chemical, and gave the holder no right to keep for sale or to sell intoxicating liquors to be used as a beverage, and gave no right to keep for sale or to sell intoxicating liquors to be drunk on the premises.” Held, that the defendant had no ground of exception.</p>

<p>Complaint, on the Pub. Sts. c. 100, § 30, to the Central District Court of Worcester, alleging that, on July 6, 1886, certain intoxicating liquors were kept and deposited by Thomas Kelley in a certain dwelling-house, the cellar under the same, the outbuildings, and the premises there situate, to wit, on Woodland Street in Worcester, and occupied by Kelley, a place of common resort being then kept therein, which liquors were intended by Kelley for unlawful sale in this Commonwealth; and praying for a warrant to search said premises for said liquors, that the same might be declared to be forfeited, and that Kelley and all other persons claiming "an interest in said liquors might be summoned to appear before said court, to show cause why said liquors should not be declared forfeited. The complainant, in the body thereof, purported to be made by Freewaldau C. Thayer and Amos Atkinson, and it was signed “F. C. Thayer, Amos Atkinson, complainants.”</p> <p>In the body of the complaint was incorporated the following affidavit: “And I, Freewaldau C. Thayer, one of the above-named complainants, on oath, say that I have reason to believe, and do believe, that intoxicating liquor, such as is above mentioned, has been sold in the house above mentioned by the occupant of said house, and with the consent and permission of the occupant of said house, contrary to law, within one month next before this day, and that said liquor above mentioned is now kept in said house for sale by said Kelley contrary to law, and my belief aforesaid is founded on the following facts and circumstances: Common report is that intoxicating liquors are sold there.”</p> <p>The jurat attached to the complaint was as follows: “ Worcester, ss. Received and sworn to this sixth day of July in the year of our Lord one thousand eight hundred and eighty-six, before said court. E. T. Raymond, Clerk.”</p> <p>The warrant issued on the complaint set forth that the complaint was made by Freewaldau C. Thayer and Amos Atkinson.</p> <p>Certain liquors were seized on the warrant. Said Kelley appeared as claimant thereof in the Superior Court, and, before the jury were empanelled, filed a motion to dismiss the complaint, for the following reasons: “ 1. The offence is not fully, plainly, and substantially described in the complaint and warrant. 2. The names of the complainants are not set out in the warrant. 3. The complaint is uncertain and indefinite as to the place to be searched, and as to the place in which the liquors are alleged to have been kept.” Blodgett, J., overruled the motion, and the claimant excepted.</p> <p>At the trial there was evidence tending to show that a part of the liquors described in the complaint were found by the officer in the cellar of the dwelling-house of the claimant.</p> <p>The claimant asked the judge to instruct the jury that “ the Commonwealth must prove affirmatively that liquors were sold from the dwelling-house described within one month prior to July 6, in order- to warrant the confiscation of the liquors there found.” The judge refused to rule as requested.</p> <p>The jury found that the liquors described in the complaint were kept by the claimant for sale in violation of law; and the claimant alleged exceptions.</p>

Complaint for keeping and maintaining a common nuisance, to wit, a certain tenement in Brockton, used for the illegal sale and illegal keeping of intoxicating liquors, on January 1,1886, and on divers other days and times between that day and June 3, 1886.

<p>At the trial of a complaint on the Pub. Sts. c. 101, § .6, for keeping and maintaining “a certain building,” used for the illegal keeping and illegal sale of intoxicating liquors, a witness testified that, on a certain day, he was in the defendant’s “ house," and bought liquor there, and another witness testified that, on a certain day, he was “ at the defendant’s house, in the front room,” and liquor ivas sold there. Held, that there was sufficient evidence to warrant the jury in finding that the defendant kept and maintained the whole building, and that the same or some part thereof was used for the purpose alleged in the complaint.</p>

Tort, in two counts. The first count was for breaking and entering the plaintiffs’ close in Brockton, and cutting down and carrying away certain trees. The second count was for the conversion of the trees.

<p>In 1863, a ward’s interest in land was sold by his guardian under a license from the Probate Court, of which proper notice was not given. The sale was conducted in good faith. All the other interests in the land were sold at the same time, and the land brought its full value. Expensive improvements were subsequently made upon the land by the purchasers, without knowledge of any defect in the title. The guardian charged himself with the proceeds of the sale in his account, and was charged by the court. Suit was brought on his bond by a subsequently appointed guardian, which was prosecuted by the ward after he became of age in 1882. Held, that these facts constituted an equitable delinee, under the St. of 1883, e. 223, § 14, to a writ of entry, brought by the ward in 1885, to recover his interest in the land.</p> <p>If a guardian’s sale under a license of the Probate Court is void on account of a defective notice, it may be confirmed by a proceeding in equity under the Pub. Sts. c. 142, § 22, although made before the passage of the St. of 1873, c. 253, § 3, of which § 22 of the Pub. Sts. c. 142, is a reenactment.</p>

<p>On a complaint, under the mill act, brought by A. against B., the Superior Court determined that B. maintained his dam higher than he had a right to maintain it in that part of the year between April 12 and November 1. After this adjudication, the jury found that the height of the dam between April 12 and November 1 should be established at its height as viewed on October 16, 1883, and that it should be left open a space'of not less than ten feet in width ; and fixed the past damages, and determined what would be proper compensation for future damages. B. paid both sums. A. afterwards brought an action against B. for maintaining his dam higher than he had a right to maintain it. The judge ruled, “ that the former finding of the court and jury should be construed to mean that the defendant was not required to alter his dám as to height from what it was on October 16, 1883; and that the former jury had a right to fix the height as they did fix it, although the finding of the court, that it was higher than the defendant had a right to have it, had been made.” Held, that A. had no ground of exception.</p>

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

Petition, under the St. of 1882, c. 237,* filed January 22, 1886, alleging that the petitioner is the owner of a certain parcel of land in Northampton, the record title of which is encumbered by an undischarged mortgage upon two undivided sixth parts thereof, dated June 21,1865, from Charles Delano, now deceased, to Harrison O. Apthorp, now deceased, in trust for Sylvester M.' Smith and Charles F. Burt, their heirs and assigtis; that the mortgage was made with a proviso for…

<p>Tort in two counts. The first count was for removing shade and ornamental trees, the property of the plaintiff, standing in front of her residence in East Streét, Amherst. The second count was for breaking and entering the plaintiff’s close, and converting the same trees to the defendant’s use. Both counts were for the same cause of action. Writ dated September 8, 1884. Answer: 1. A general denial. 2. That the defendant was one of the selectmen of Amherst, who had the care of said street under authority of the town, and who caused the travelled road and path to be widened that he, acting as highway surveyor and one of the selectmen, and under authority of the board of selectmen, caused the trees to be removed. 3. That Amherst was the owner of the land and soil upon and within which the trees were standing.</p> <p>Trial in the Superior Court, without a jury, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It was admitted that the plaintiff owned the premises and residence, in front of which, on East Street, three valuable shade trees had stood for sixteen or seventeen years; and that the defendant, in October, 1883, without notice to or leave from the plaintiff, caused the trees to be taken away by a person, who used them for wood.</p> <p>The deed to the plaintiff of said premises and residence, in 1854, bounded the same “ west on East Street.” Ebenezer Mattoon owned the premises in 1789, and, in conveying them in 1830, bounded them “ west on East Street.” The same premises were conveyed by Mattoon’s grantee, and twice subsequently, before the plaintiff took her deed, and were each time bounded “ west on,” or “ westerly by,” East Street. There was no other conveyance of the premises between Mattoon’s and that to the plaintiff. The only other conveyance of said premises was from Noah Dickinson to Ebenezer Mattoon, dated March 11, 1789, wherein it was bounded “ west on a highway.”</p> <p>The trees were planted sixteen or seventeen years before 1888, in the same line with some old shade trees, some of which were two and one half feet in diameter and had become decayed, and they were removed by the plaintiff to set out those in question.</p> <p>East Street runs north and south; and at the place in question was, when the defendant removed said trees, between one hundred and fifty and one hundred and sixty feet wide. The easterly part of it in front of the plaintiff’s premises was a grass plat, in which the trees in question stood, west of which trees was a foot-walk. Westerly of this, a strip was worked for travel. Then an area was grassed over. Then a second strip was worked for travel. Then another grass plat reached to the westerly limit of the highway.</p> <p>The plaintiff had occupied her premises since 1854, and each year until and including 1883 had mowed the grass plat, on which the old trees and those in question stood, in front of her premises, without objection by, and without asking permission of, any one. There had been a door-yard fence in front of said premises, which had been removed some years before the defendant’s acts. It marked the easterly limit of the highway. The trees in question stood westerly of the line of this fence, but considerably east, or on the plaintiff’s side, of the centre of the way.</p> <p>The case was referred to an auditor, who reported that “ the plaintiff at the time of setting out the trees in question had no authority or license, either verbal or written, to do the same, from the selectmen, road commissioners, or any municipal officer of Amherst to whom the care of the streets or roads may be entrusted.” The report was read at the trial, and there was no other evidence touching the question of license or authority, unless the other facts herein stated may be considered evidence on that point. It was admitted that no objection was made to the planting or maintaining the trees by any officer of Amherst, or by the public, or by any one.</p> <p>The defendant was a selectman for 1883. The town voted, in March of that year, that the highways, and bridges be placed in charge of the selectmen. It also voted a special appropriation of $200 “for the East Street road,” which sum was being expended by the selectmen, who had decided what repairs and alterations to make, and the defendant was entrusted with the execution of them by his associates. In making such alterations, the easterly travelled track was moved to the east, but within the limits of the highway, and upon the place where said trees had stood which were cut and removed by the direction of the defendant. No other proceedings had been had by the selectmen, or by the town, relative to altering the said way.</p> <p>On the question of title to the soil within the limits of the highway, to show that it was in the town of Amherst, it appeared that Hadley was incorporated in 1661; that in 1673 its bounds were established as follows: “ Bounds shall run from their meeting-house, five miles up the river and five miles down the river and six miles from their meeting-house eastward.” The second precinct in Hadley was incorporated in 1759, as the District of Amherst. By the St. of 1785, c. 75, § 9, approved March 23, 1786, all places incorporated by the name of districts before January 1, 1777, were declared to be towns, to every intent and purpose whatever. There was no evidence of any conveyance from Hadley to the district, or to the town of Amherst.</p> <p>On March 4,1700, Hadley passed the following votes: “Voted, that three miles and one quarter eastward from the meetinghouse, and so from the north side of Mt. Holyoke unto the Mill River, shall lye as common land forever, supposing that this line will take in the whole of the new swamp. Voted, that the rest of the common eastward shall be laid out in three, divisions, that is to say, betwixt the road leading to Brookfield and the Mill River, notwithstanding there is liberty for the cutting wood and timber, so long as it lyeth unfenced. There is likewise to be left betwixt every division forty rods for highways. And every one to have a proportion in the first or second division. And every one to have a proportion in the third division; and every householder to have a fifty pound allotment. And all others who are now the proper inhabitants of Hadley, from sixteen years old and upwards, to have a five and twenty pound allotment in said common.”</p> <p>In March, 1745, Hadley voted, that “whenever the town measurers have laid out, according to our order, three divisions of land east of our towne, that we desire the clerk to record said lands in the town’s book together, in the same order as they were drawn for by the inhabitants according to the list presented by said measurer, for the doing of which we will pay what is reasonable out of the town rate.”</p> <p>The third division lies between East Street and the Pelham line. The plaintiff’s premises are in said third division, and within the original Hadley, namely, six miles from their meeting-house eastward. East Street is the remainder of one of the old highways.</p> <p>In November, 1787, Amherst passed the following votes: “Voted, to sell some part of the town highways. Voted, that the highways north and south shall be in no place less than six rods wide, where they are now so wide. Voted, that the committee act discretionary as to the width of the cross highways. Voted, to choose a committee to dispose of said highways, or any part thereof, as they think proper. Voted, that [naming nine persons] be the committee aforesaid.”</p> <p>On January 14, 1788, the said committee reported, at a meeting of the inhabitants, that they had, pursuant to the instructions of the town, laid out and surveyed a town way six rods wide between the first and second divisions; and another, between the second and third divisions, of the same breadth, except that, in the way between the second and third divisions, they had laid out the way but four rods wide from the Bay Road to the north side of Stoughton Dickinson’s house lot, and excepting also that in several places the committee had left and reserved the whole breadth of the former way for particular or public use; that the said newly laid ways were within the old town ways, and for the most part contained the county roads.</p> <p>Said committee also reported that they had laid out ways in the same manner across the divisions from west to east, four rods wide; that they had measured out and bounded the several pieces of land at the front, rear, or sides of each man’s lot bounded on the said newly surveyed ways, which pieces of land the town would sell to the respective owners of the lots (if they thought proper) ; that the committee had also appraised each of said pieces of land according to their best skill and judgment, and exhibited to the town a particular list of their locations and appraisements: that the following exhibition showed the names of the men against whose lands the said pieces of land were laid out for sale, then the quantity of land in acres and rods, the several prices by the acre, and the amount of the lands laid out for each man to purchase, from the Bay road north, between the second and third divisions:</p> <p> Owners of Lots and Descriptions. Quantity of Land. Price per Acre. Sums to be </p> <p>Jacob Warner, Jr. 8 rods wide, 19 rods long. 152 rods. £1-0-0 Paid. £0-19-0</p> <p>The report contained one hundred and forty-three pieces, recorded as above. The several sums affixed to the respective names contained in the foregoing list amounted, according to the computation made by the committee, to the sum of five hundred and thirty-three pounds nine shillings and eleven pence, “ but there are several former grants included in the foregoing appraisement which the committee could not without difficulty ascertain, and are therefore left to be deducted from the appraisements respectively.”</p> <p>The committee also reported, that the lands left for a way from Leverett bounds to Mill River, and the lands left between Lt. John Dickinson’s and Justin Williams’s farm in the first division, were not reported by the committee, but were left to be thereafter disposed of by the town as they should think proper.</p> <p>The town voted to accept the report of the committee, and that the tracts of land laid out and described to the persons respectively named in said report “ be and hereby are granted in fee to the said persons and their heirs respectively,” on condition that they pay the sums whereat the several tracts were respectively appraised to the town treasurer, or give security; and that, whenever said payment should be made or security given, the town way in each tract respectively should be discontinued, provided that the lands in said report described to (three persons named) be excepted out of the grant, and reserved to the further order of the town. The land relating to the premises now owned by the plaintiff was not one of the pieces excepted in the report or vote.</p> <p>East Street was by said proceedings narrowed at the place in question, and by a still further narrowing there, hereinafter mentioned, was reduced to its present dimensions. In November, 1809, Ebenezer Mattoon (then owner of the plaintiff’s premises) and two others petitioned the selectmen to insert an article in the warrant for the next town-meeting, to see if the town would allow them to straighten their fences on the east side of the highway, from Mattoon’s garden fence to the lane leading to Clapp’s house, by extending them a few feet into the highway, and make such order thereon as might be thought proper. At a meeting of the qualified voters, December 7, 1809, it was voted, in pursuance of the third article, on the petition of Ebenezer Mattoon, Esq., and others, praying for an alteration in the highway near his dwelling-house, to choose a committee of three to view the ground where the alteration is prayed for, and report their opinion thereof at a future meeting.</p> <p>A committee was chosen, who, at the March meeting, 1810, reported that the land prayed for would not encroach upon the county road, nor do any injury to the street; they therefore recommended to the town to grant the petitioners and others therein named the lands in front of their respective lots, which lands were bounded and described in the plan therewith exhibited, a copy of a portion of which is printed in the margin,* “beginning at the comer of Noah D. Mattoon’s fence and running south 16° west ninety-four rods, to a post in Lt. Noah Dickinson’s fence, a little south of the brook, and appraised the land in front of each man’s lot: To Lt. Noah Dickinson, three quarters of a rod, at seventy-five cents; Ebenezer Mattoon, thirteen rods, at $13.” Other sums to three other persons. - The committee also reported that they had gone further in their appraisement of land than the original petitioners expected, but they found.it would ornament the street without injury to any, and as people were generally desirous of the measure, they presumed to extend their commission to others as well as the petitioners.</p> <p>The committee recommended the town to grant the lands described to the persons named in their report, upon the payment of the sums.affixed to each person’s name.</p> <p>It was admitted at the trial that said Mattoon’s premises were at or about the point marked “ A ” on the plan, the highway as left being immediately west of the straight line west of it.</p> <p>At a legal town meeting, held on April 2, 1810, it was voted, in pursuance of an article in the warrant, to accept the report of the committee appointed at the last December meeting, on the petition of Ebenezer Mattoon, Esq., and others, praying that the town would allow them the privilege of straightening their fence and of enclosing a strip of town land in front of their lands, which report is favorable to the' petitioners, and allows them, together with certain other persons therein named, for the sums therein severally expressed, to enclose each a strip of town land in front of their possessions particularly described and laid down in the same report, which report is on file, and is to be considered part of this record, and the lands therein described granted to the several persons therein named. The way was accordingly narrowed.</p> <p>It appeared that, in June, 1888, the selectmen, by vote of the town, represented to the county commissioners, by their petition, that the boundary lines of East Street had been lost or become uncertain, and prayed them to determine and establish the highway by suitable and permanent monuments. The commissioners accordingly, after due proceedings, adjudged that the highway at the place in question “ is laid ” a certain ascertained number of rods wide, expressed in their decree, and located permanent bounds to indicate the limits of the highway. The location thus ascertained or determined covered the three grass plats and two worked strips hereinbefore described, and left the place where said trees stood east, or on plaintiff’s side, of the centre of the highway.</p> <p>. The plaintiff requested the judge to rule as follows: “ 1. If the trees in question were planted by the plaintiff, sixteen or seventeen years ago, in the same line with ancient trees which had become decayed, and which were removed for the purpose of planting the new ones in front of her premises, on her side of the centre of the street, between her house and the sidewalk on her side of it, and were kept there, without objection by any officer of Amherst or the public, until removed by the defendant, a license to plant them there would be presumed. 2. If Amherst owned the fee in the soil of the highway forty rods wide in 1787, when it voted to sell some part of the highways, and sold to the plaintiff’s predecessor more than half the width of the highway in front of his lot as it then existed, the vote of November 12, 1787, the report of the committee of January 14, 1788, and its acceptance by the town in April, 1788, whereby it granted the same in fee to said predecessor and his heirs, the same would convey the fee to the centre of the highway, and the subsequent conveyances of the lot as thus enlarged, bounding the same on said highway, would convey the fee to the centre to the successive grantees. 3. But if said votes and proceedings did not pass the fee to the centre, and if the fee was still in Amherst thereafter, the vote of April, 1810, granting to Ebenezer Mattoon thirteen rods of land in the highway in front of his land, passed to him the fee to the centre of the road, and the subsequent conveyances of it, through several parties, to the plaintiff, bounding it on said street, passed the fee to the plaintiff. 4. The petition of the selectmen of Amherst, by vote of the town in 1883, setting out that the boundary lines of the highways in question had been lost or become uncertain, praying the commissioners to establish the road, and whereby they obtained an adjudication establishing the way in question covering the locus where the trees stood, estops the town and the defendant in this action from claiming that the town owns the fee in the soil under said road.”</p> <p>The judge refused to give any of said rulings; and found for the defendant. The plaintiff alleged exceptions.</p>

<p>A conveyance of land in trust “ for the benefit of A. for a homestead for his life, and for B. after the said A.’s decease, his heirs and assigns,” gives B. a vested , remainder in fee, which he can alienate in A.’s lifetime.</p> <p>An assignment, under seal, to a town, of a sum of money held in trust for the assignor, purporting to be “ in consideration of one dollar and other valuable consideration,” and the object of which is expressed to be to repay expenses incurred by the town for the support of the assignor as a pauper, and, if anything is left after paying for past charges, to pay for his support in the future, is valid.</p> <p>An assignment of a sum of money will not, after the death of the assignor, be held to be invalid, because, nine years before the execution of the assignment, the assignor was placed under guardianship as a spendthrift, if the person appointed guardian did not accept the office, although the decree of the Probate Court appointing him has not been revoked.</p>

<p>Complaint under the bastardy act, Pub. Sts. c. 85. At the trial in the Superior Court, before Knowlton, J., the jury returned a verdict for the respondent; and the complainant alleged exceptions to the admission of certain evidence, the nature of which appears in the opinion.</p>

<p>Contract, with a count in tort, for the failure of the defendant, who was the plaintiff's agent, to cancel a policy of insurance, as directed. Trial in the Superior Court, without a jury, before Knowlton, J., who found for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>A testator executed three wills, each containing a revocatory clause, and each of which he published and declared to be his last will. At the time he executed the third will, he said he would keep them ail until he made up his mind which he wanted to keep, and would then destroy the two he did not want. He after-wards destroyed the first and third wills. Held, that these facts would warrant a finding, that the testator, in cancelling the third will, intended to revive the second will, without further evidence of a republication of this will.</p>

<p>An insolvent, shortly before the beginning of insolvency proceedings, conveyed chattels to another, in consideration of the grantee agreeing to pay certain mortgages upon the property; and afterwards the grantee, being then in possession of the property, obtained an assignment of one of the mortgages, and an indorsement of the note, then overdue. Held, that the assignee in insolvency of the grantor could maintain an action, under the Pub. Sts. c. 167, § 98, against the grantee, to recover the value of the property so conveyed, less the amount due on the mortgage.</p>

<p>Replevin of a horse, wagon, and harness. Writ dated March 16, 1886. The defendant, a deputy sheriff, justified by virtue of an attachment of the articles in question, on March 15, 1886, on a writ, as the property of one Chauncey Stone.</p> <p>At the trial in the Superior Court, before Bacon, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

Tort for personal injuries sustained by the plaintiff while in the defendant’s employ. Answer, á general denial.

<p>Indictment, against Chester A. Sawyer, William M. Burke, and Ebenezer S. Sawtell, Jr., alleging that the defendants, on July 18, 1886, at Berlin, made an assault upon Appleton D. Parmenter, a constable and police officer of said Berlin, being then and there in the due and lawful execution of the duties of said office, the defendants well knowing said Parmenter to be such officer and so acting in the execution of the duties of said office.</p> <p>Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows:</p> <p>Appleton D. Parmenter testified that he was a special police officer of the town of Berlin, appointed June 9, 1886; that he was patrolling the highway in said Berlin a little after nine o'clock in the evening of Sunday, July 18, 1886, in company with Leonard W. Brewer, another police officer of said town; that when they were at a point in the highway opposite the hotel of one Sydney I. Liscomb, Parmenter was accosted by Liscomb, and asked if he had business in Liscomb’s house, and, before anything further was said, Liscomb, addressing Brewer, said, with an oath, “or you either,” and immediately struck Brewer, whereupon Brewer and Liscomb clinched and engaged in a struggle; that thereupon Parmenter advanced toward the combatants to assist Brewer, when the defendant Sawtell, who had not before been seen or heard, exclaimed, “ Hold on there, Parmenter, don’t strike him; that, immediately after this exclamation, the defendant Burke pulled Parmenter by the coat collar and held him while the defendant Sawyer struck him, and some one of the defendants seized his billy, which he had drawn in assisting Brewer; that the night was dark and rainy, although a light shone on the scene from the hotel, and the defendants were not seen or heard till they accosted and obstructed Parmenter ; and that each defendant appeared separately, and Parmenter recognized each at the time of his appearance.</p> <p>Leonard W. Brewer testified that he lived in Berlin, and was appointed a special police officer just after Parmenter’s appointment, and that he was with him at Liscomb’s on the night of July 18, when he was assaulted; and the witness described the assault substantially as testified to by Parmenter.</p> <p>Arthur A. Staples testified that he was at the post-office in Berlin after the assault, and there heard the defendant Sawtell tell one Moore that he took the billy from Parmenter, and that Burke held Parmenter, and Sawyer struck him.</p> <p>There was also evidence tending to show that, among the duties for which Parmenter and Brewer were appointed, was the surveillance of Liscomb’s house, which, without being a licensed inn, was a place of common resort; that Sawtell came from said house immediately after Liscomb accosted Brewer, as before stated; and that the defendants had lived in the town many years, knew Parmenter and Brewer well, and were well known by them.</p> <p>The defendants testified in their own behalf, and offered evidence tending to show that the defendant Burke was elsewhere at the time of the alleged assault. The defendants Sawyer and Sawtell admitted being in the vicinity at the time, but denied assaulting Parmenter, or knowing that the person assaulted was an. officer.</p> <p>In charging the jury, the judge, after defining an assault, and instructing them as to what constituted an assault upon an officer, in a way not excepted to, further ruled that the jury might infer from the evidence that the defendants knew that Parmenter was an officer, as alleged in the indictment, and that he was in the lawful execution of his office; and that the jury might return a verdict of guilty of the full charge.</p> <p>The jury returned a verdict of not guilty as to Burke, and a verdict of guilty as to Sawyer and Sawtell; and they alleged exceptions.</p>

<p>Complaint for an unlawful sale of intoxicating liquor, at Clinton, on July 4,1886, the same being the Lord’s day, to some person to the complainant unknown. Trial in the Superior Court, on appeal, before Blodgett, J., who allowed a bill of exceptions, in substance as follows :</p> <p>The government offered one Kenney as a witness, who testified as follows: “ I know a place in Clinton, kept by Johq. Molter, on Main Street; the sign is 1 Railroad Restaurant.’ Between seven and half-past seven o’clock P. M., on Sunday, July 4, I stopped on the platform of the railroad station, in sight of Molter’s place; there are two doors opening into the place of business from the street, one leads into the restaurant, the other to the bar-room; the door to the former was open, people were going in thereat, and I followed. I passed through the restaurant, and into the bar-room. There were a settee and some chairs before the bar, four or five men were in the room, a man was behind the bar, and some one called for lager beer; Molter was behind the bar, he served the liquor, and I saw two payments made. This bar-room faces the street, and the bar comes pretty close to the Avindow; one could see right in from the street, as it was daylight; I saw the bar and fixtures behind the bar, such as bottles and the like; the bar is fifteen feet long; behind the' bar are shelves; saw no one come into or go out of the bar-room by the front door; there were quite a number of persons in the restaurant, and four or five in the bar-room. I think the man behind the bar was called John, but I am not positive; this is my impression.”</p> <p>On cross-examination, the witness testified that, in the lower court, he testified that he could not identify the man behind the bar; that he could not now identify him; and that he could not now identify the defendánt, or any one in the bar-room or restaurant.. He further testified, on cross-examination, as follows: “I saw two different persons make payments. I think there were two or three persons in the bar-room when I went in. I went in with íavo or three other persons. I could not say which party paid for the beer. As soon as I saw the payments, I went out. Ho one spoke to me, and I spoke to no one.”</p> <p>Abbot A. Jenkins, a deputy sheriff residing in Clinton, was called by the government, and testified that “ John Molter keeps a small hotel and restaurant, called the Railroad Restaurant; there is'a bar-room on the premises, and it is quite a good-sized place.”</p> <p>The government offered in evidence a license of the first class under the Pub. Sts. o. 100, and an innholder’s license, to do business at said house, both of which were issued to the defendant on or about May 1, 1886.</p> <p>The defendant offered no evidence; but requested the judge to rule that, upon the above evidence, the defendant could not be convicted.</p> <p>The judge declined so to rule; and ruled that there was evidence upon which the defendant might be convicted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Tort for personal injuries occasioned to the plaintiff by a defective highway in the city of Worcester.

Replevin of “ one Emerson piano, style C, No. 30964.” Trial in the Superior Court, without a jury, before Knowlton, J., who allowed a bill of exceptions, in substance as follows: The plaintiff offered evidence tending to show that, on October 2, 1883, one S. K. Elliott obtained from the Boston Loan Company, of which the plaintiff was an officer, $175, and gave for it a promissory note for that amount, payable to the Boston Loan Company one month from that date, and signed “…

<p>A., a manufacturer, had two mills, one of which was run under his own name, and the other under the name of B. He consigned goods to C., a commission merchant, under an agreement that C. should make advances, should sell the goods, and, after deducting his advances, with interest, and his expenses, charges, and commissions, should credit A. with the net proceeds. A. kept the accounts of each mill separate; and he consigned and invoiced the goods to C., who had no knowledge that A. was the sole owner, in the name under which each mill was run. C. brought an action against A., to recover the balance of an account current with tlie mill run under the name of A., to which the answer was a general denial, and payment. Held, that, under the pleadings, A. could not show that there was a balance due him upon the account in the name of B., which should be allowed in this action, or that there were in C.’s hands goods from the mill run in the name of A., which were not included in the account sued on. Held, also, that the expense of printing a part of the goods was properly charged to A., it being shown that this was done under the usage of commission merchants in like cases.</p>

<p>In 1870, A., the owner of land, mortgaged it to D., the condition of the mortgage being the payment of a certain sum of money, on demand, with interest semiannually, and to secure and save the mortgagee harmless for all indorsements, liabilities, expenses, and services, on account of the mortgagor. In 1878, A. mortgaged a portion of the same land to H., by a deed which referred to the mortgage to D. In 1880, D. assigned the first mortgage to S., the consideration expressed being $1. On a bill in equity, brought, in 1884, by H. against S., to redeem the land from the first mortgage, it appeared that, in 1867, the firm of which A. was a member executed an assignment for the benefit of their creditors to S. and others, as trustees, by the terms of which certain property (in which that subsequently mortgaged by A. was not included) was to be sold, and the proceeds, after deducting the disbursements, expenses, and charges of the trustees, were to be divided ratably among the creditors of the firm. S. was permitted to testify, against the objection of H., that, at the time of the execution of the first mortgage it was to be held as security for the payment to S. for all the services he had rendered, or should thereafter render, to A. as trustee under the assignment of 1867, or as his attorney, and also for all advances and payments made or to be made, or liabilities incurred, by S. in behalf of A.; that D. did not make any advances to A., or incur any liability for him; and that these facts were all known to H. when he took the second mortgage. The judge found that this testimony was true, and ordered a decree to be entered that S. was entitled to hold the first mortgage as security for money paid out to the creditors of the firm of which A. was a member beyond what he had received from the assets of the firm, for money advanced to A., and for money paid one of his co-trustees for his services, with interest on these amounts; and that he was also entitled to hold it as security for money due him as trustee, or as attorney, without interest, no demand having been made; but that S. was not entitled to be indemnified against any claim of creditors of the firm, the judge having found that S. had fully executed the trust, although there was evidence that a creditor had recently made a demand upon him. Held, that the decree was right.</p>

<p>A. made a promissory note, payable to a town, which was also signed, before delivery, by a firm composed of B. and C. A. held, at the same time, a note of equal amount, signed by B. and C. individually, as an offset for another note of the same amount made by A. to D. for the use of B. and C.; and the money received by B. and C. from the town on the first-named note was paid by them to D. After this A. held the note signed by B. and C. individually as an offset or protection for his liability upon the first-named note; and there was no other consideration for the first-named note between the makers. A. died, and an executor of his will was appointed. A.’s daughter, who was also the wife of B., in settlement with the executor for her share of A.’s estate, made and signed ‘ with the other heirs of A. an agreement, by which they released to her all their interest as such heirs in certain real estate, and “also all notes held by A. against B.,” and she released to them all her interest in A.’s estate, real and personal. In execution of this agreement, the executor delivered to A.’s daughter the note signed by B. and C. individually, which was received by her as a part of her share of said estate. B. and C. paid interest on the first-named note up to a certain day, when the town made demand upon A.’s executor for payment of the note. Subsequently, two of A.’s heirs, one of whom was the executor, gave to the town their promissory note for the amount of the first-named note, and took from the town treasurer a certificate that it was “ given as a guaranty' or indemnity ” to the town for the first-named note, “ which last-named note has been left with ’’ the executor’s attorney “ for collection,” with a stipulation that the makers of the new note were to indemnify the town against the expenses of collection. The town afterwards brought an action on the first-named note against B. and C. The defendants offered to show, by C., that he had paid to A.’s daughter his one half of the note which she received from A.’s executor; and also offered to show, by the plaintiff’s treasurer, that he had told the defendants that the note in suit was paid by A.’s executor, and delivered up to him. The treasurer testified that the note in suit was paid lfim by the executor, and that he surrendered the note and gave up all claim to it. Held, that the evidence admitted and excluded showed no equitable defence to the action, within the St. of 1883, c. 223, § 14.</p>

<p>The St. of SO & 31 Viet. c. 124, § 7, provides that, if a seaman who is ill has not, through the neglect of the master or owner, been provided with proper food, or water, or anti-scorbutics, the master or owner shall be liable to pay all expenses properly and necessarily incurred by reason of such illness (not exceeding in the whole three months’ wages) by the seaman, but that this “ shall not operate so as to affect any further liability of any such owner or master for such neglect, or any remedy which any seaman already possesses.” Held, that this statute did not take away the right of a seaman to maintain an action against the owners of the vessel for injuries sustained, to a greater amount than three months’ wages, by reason of the failure of the master to furnish proper food and anti-scorbutics, as provided for in the shipping articles.</p> <p>In an action by a seaman against the owners of a vessel for injuries caused by the neglect of the master to furnish suitable provisions and anti-scorbutics, as required by the shipping articles, evidence of the similar sickness, under the same conditions, of others of the crew on board the vessel about the time of the plaintiff’s sickness, is admissible.</p> <p>A seaman, who has shipped on an English vessel under articles sanctioned by the Board of Trade in pursuance of the St. of 17 & 18 Viet. c. 104, and which require the supplying of specified provisions and anti-scorbutics to the crew during the voyage, may maintain an action against the owners of the vessel for injuries caused by the neglect of the master to comply with such requirements.</p> <p>The writ in an action by a seaman described the defendants by the fictitious names of “John Doe and Richard Roe, owners ” of a certain vessel. The vessel was attached, and the writ was served on the master of the vessel, who gave bond with sureties to release the vessel from attachment. No change in ownership occurred while the vessel was on the voyage during which the cause of action arose, up to the time of the attachment. An appearance by counsel was entered for the defendants, and an answer filed. At the trial, the judge was asked to rule that the plaintiff must show the ownership of the vessel by the defendants, as alleged in the writ. Held, that the ruling requested was rightly refused.</p>

Contract, against George F. Wood and William C. Caye, upon three promissory notes, each dated at Louisville, Kentucky, in May, 1883, payable six months after date to the order of Macomber and Greenwood, at the Kentucky National Bank, signed by the defendants in the firm name of George F. Wood and Company, and indorsed by the payees. The answer set up failure of consideration, and that the notes were governed by the law of Kentucky.

Tort for breaking and entering the plaintiff’s close in Richmond, and cutting down and carrying away a quantity of wood and timber; and for converting the same to the defendant’s use. Writ dated October 3, 1883. Trial in the Superior Court, before Bacon, J., who ruled that the defendant had shown no defence to the action; directed the jury to return a verdict for the plaintiff; and reported the case for the determination of this court.

<p>In an action for the use and occupation of certain premises described in a written lease, it appeared that the defendant had not signed the lease; and that the instrument was sent to him, and his son received it and placed it in the defendant’s desk. The plaintiff called the son as a witness, who testified that he showed the lease to the defendant for his signature; that the defendant took it and read it, but did not sign it. The defendant asked the witness, on cross-examination, what the defendant said to him when he had read the instrument “ about accepting, or signing, or executing, or refusing to accept, or sign, or execute, the same.” Held, that the question was admissible as part of the res gestos.</p> <p>The plaintiff in an action testified that he received a letter, and sent it to a friend in another State, and that all that he knew about it afterwards was that his friend wrote that he had mislaid the letter and could not find it. The judge who presided at the trial then allowed the witness to testify to the contents of the letter. Held, that the defendant had no ground of exception.</p>

Complaint, under the Pub. Sts. c. 101, § 7, for keeping and maintaining a common nuisance, to wit, a certain tenement in West Stockbridge, used for the illegal sale and illegal keeping of intoxicating liquors, on May 1, 1884, and on divers other days and times between that day and July 5, 1884.

<p>A deed of a collector of taxes recited that “ no person has appeared to discharge said tax,” and that the collector “ has demanded the same of S., the reported owner of said real estate; ” but the deed did not state that fourteen days elapsed after the demand before advertising the premises for sale, or that the tax was not paid within fourteen days after the demand. Held, that, under the Gen. Sts. c. 12, §§ 22, 35, the deed was void.</p>

<p>In a criminal case, when the witnesses for the government were about to be sworn, the defendant objected to the oath being administered to one of them, a girl thirteen years old, on the ground that she was ignorant of the nature and obligation of an oath. The girl said that she understood that the oath was to tell the truth, and that she would be punished if she did not tell the truth after taking it, but that she did not know how or by whom she would be punished. The judge said he would postpone the decision of her competency, and she could be instructed, if necessary. The next day site was offered as a witness, and was found competent and permitted to testify, against the exception of the defendant. It appeared that, after the adjournment of the court the first day, she was instructed by a Christian minister, who told her that God would punish her, if, after taking the oath, she testified what was not triie; and that she did not know this before. Held, that a bill of exceptions, taken by the defendant, and setting forth these facts, showed no ground of exception.</p> <p>In a criminal case, the testimony of a witness was admitted, without objection, as corroborating the testimony of an accomplice of the defendant. The defendant requested the judge presiding at the trial to instruct the jury that the testimony of the accomplice should be corroborated in some material fact. The judge gave this instruction. The defendant further asked the judge to rule that the evidence of the other witness afforded no such corroboration, but, on the contrary, was contradictory and conflicting, and, if the jury found it to be so, it was their duty to acquit. The judge refused so to rule. Held, that the defendant had no ground of exception.</p> <p>At the trial of an indictment for incest, the judge instructed the jury that carnal knowledge and penetration were necessary to be proved to convict the defendant. Held, that the defendant was not entitled to have the jury further instructed, that, if they could not find, on the testimony of the girl with whom the offence was alleged to have been committed, that the defendant had actual sexual intercourse with her, by penetration, they should acquit.</p> <p>At the trial of a man for incest, it appeared that the girl with whom the offence was alleged to have been committed was- thirteen years old. Medical experts, who examined the girl six weeks after the time of the alleged offence, were permitted to testify to the abnormal condition of the girl’s private parts at the time they examined her, and to the causes which would produce such condition. Held, that the defendant showed no ground of exception.</p>

<p>Judgment by agreement was entered against an attaching officer in an action brought against him for the conversion of the attached property. He then brought an action upon a bond of indemnity given to him by the plaintiff in the writ on which the attachment was made. It was not contended that the judgment by agreement was collusive or fraudulent, either as affecting the parties to it, or others collaterally affected by it; and it was not contended that the officer could have successfully defended the action in which the judgment was entered. Held, that this was, in effect, an admission that there was no defence to that action; and that such an admission rendered immaterial the question whether there was sufficient evidence to show that a person who claimed to be acting as the attorney of the principal on the bond, who directed the officer to make the attachment, and who also instructed him to pay the execution issued on the judgment, had any authority to act for such principal.</p> <p>The condition of a bond given to an attaching officer, to indemnify and save him harmless “of and from all suits, damages, and costs whatsoever, whereunto he may be liable, or obliged by law to pay to any person or persons, by reason of the said attachment,” includes counsel fees reasonably incurred in the defence of an action occasioned by the attachment.</p>

Contract, upon an account annexed, in two items, the first item being, “ To three years’ rent of undivided half of store from March 21, 1880, to March 21, 1883, at $150 per year, $450; ” and the second item being, “ To cash paid for taxes for 1882 on the defendant’s undivided half of store property, $22.10.” Trial in the Superior Court, before Baeon, J., who allowed a bill of exceptions, in substance as follows: It appeared in evidence, and was admitted, that the plaintiff…

<p>Writ of entry, dated March 3, 1883, against the Turner’s Falls Company and the Turner’s Falls Lumber Company, to recover a strip of land at Turner’s Falls. Plea, nul disseisin, with certain specifications of defence, which need not now be stated.</p> <p>At the trial in the Superior Court, before Thompson, J., the jury returned a verdict for the demandant for a portion of the premises described in the writ; and the tenants alleged exceptions, which appear in the opinion.</p>

Complaint to the Second District Court of Eastern Worcester, alleging that the defendant, on July 5, 1886, at Clinton, “ without any authority therefor,” sold intoxicating liquor to a person unknown. Trial in the Superior Court, on appeal, before Blodgett, J., who allowed a bill of exceptions, in substance as follows: The government called one Kenney as a witness, who testified, in substance: “I know where the defendant keeps a public place on Main Street in Clinton.

Contract, upon an account annexed, for two hundred and fifty-three loads of sand, sold by the plaintiff to the defendant.

<p>The twenty-second amendment to the Constitution of the Commonwealth requires the Commonwealth to he divided by the General Court into senatorial districts according to the boundaries of towns and cities and the wards thereof, as they existed on the first day of May in the year in which the census of legal voters is taken that applies to said apportionment and division.</p> <p>The twenty-first amendment to the Constitution of the Commonwealth requires the aldermen of the city of Boston, and the county commissioners of the other counties than Suffolk (in case no special commissioners are provided therefor), to divide tlie assignments of representatives to the several counties apportioned by the Legislature, according to the boundaries of the towns and cities and their wards, as they existed on the first day of May in the year in which the census of the legal voters is taken that applies to said apportionment and division.</p>