Volume 143 — Massachusetts Reports

<p>Contract for breach of an agreement in writing, the material parts of which were as follows:</p> <p>“ May 24, 1883.</p> <p>“ To George Barrie, Philadelphia.</p> <p>“ Sir: I hereby subscribe for one copy of the Art Treasures of America, in ten portfolios, at fifteen dollars each, as published, on the following terms of subscription, which terms of subscription cannot be altered or modified:</p> <p>“ 1st. The Art Treasures of America, to be completed in 10 portfolios at $15 each.</p> <p>“2d. Each portfolio to contain 16 impressions of photogravure plates, India • proofs, lettez’ed, and 50 pages of text or full-page wood ezigravings.</p> <p>“3d. The portfolios to be issued at intervals of about two months.</p> <p>“ 4th. This edition is limited to twelve hundred copies, but no more copies will be issued than are subscribed for; and the publisher reserves the right at any time to advance the price to new subscribers.</p> <p>“ 5th. Each copy of the work to contain a special title bearing name and address of its subscriber; and the publisher guarantees to furnish impressions and paper equal. in all respects to the specimens shown.</p> <p>“ 6th. Portfolios to be delivered, carriage prepaid. Payment only to be made for each portfolio after such delivery.</p> <p>“ 7th. No terms, conditions, or representations other than here printed will be binding on subscriber or publisher; azzd the szzbscriber hereby acknowledges receipt of a copy of these terms.</p> <p>“Enoch Earle.”</p> <p>The declaration also contained a count on an account annexed, the first item of which was, “Nov. 3, 1883. To Portfolio 3, Art Treasures, $15,” and the second, “Jan. 26,1884. To Portfolio 4, Art Treasures, $15.”</p> <p>The answer denied that the defendant signed the cozztract; alleged that, if he signed it, he was induced to do so by certain false and fraudulent representations made by the agent of the plaintiff, that no portfolios were delivered to .him, and that, if delivered, they were of no value, and not equal to the sample shown him, or as required by the terms of the contract; and denied that the plaintiff had performed his part of the contract, or that the defendant had refused to perform his part thereof.</p> <p>Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff introduced evidence tending to show that he delivered the first portfolio under said contract, by the Adams Express Company, at the house of the defendant, some time in July, 1883, for which he received, some time afterwards, a check for $15, from the defendant; that, some time in August or September following, the plaintiff, by said express company, delivered a second portfolio, under said contract, at the defendant’s house, for which he afterwards received the defendant’s check for $15; that, some time in October following, the plaintiff sent to the defendant’s house by said express company another portfolio, which the defendant refused to take; and that the remaining seven portfolios were never delivered to the defendant, although the plaintiff had been ready to deliver the same, but the defendant refused to accept them, and notified the plaintiff of his refusal.</p> <p>The defendant offered evidence to show that his signature to said contract was obtained by certain false and fraudulent representations made to him by the plaintiff’s duly authorized agent, upon which representations the defendant relied; but, it being admitted by him that he had neither returned nor offered to return the portfolios received, as above stated, by him, the judge excluded this evidence.</p> <p>The defendant also offered evidence of certain statements made by the plaintiff’s agent to the defendant as to the place where his name and address would appear upon said portfolios, and the way and manner in which said name and address would be printed and would appear, as provided in the fifth clause of said contract; which evidence was excluded.</p> <p>It appeared, or was admitted by the parties, that one Prentice, who occupied a tenement in the same house with the defendant, had made with the plaintiff a contract similar to the one between the plaintiff and tbe defendant; that the portfolios for both Prentice and the defendant were sent in one package, and so delivered at the house; that, after arriving at the house, they were separated, and, by a mistake, those with Prentice’s name on the title page were delivered to the defendant, and those with the defendant’s name were delivered to Prentice, the books being in all other respects alike, and that these facts were known both to Prentice and the defendant; but that neither the defendant nor Prentice ever notified the plaintiff of these circumstances, and the plaintiff did not know of the mistake until after this action was brought. The judge ruled, that good faith upon the part of the defendant required that, if he intended to rely upon these circumstances as a non-delivery under the contract, he should have notified the plaintiff; and that, not having notified the plaintiff, he must be considered as having waived the defect, if any there was, in the delivery.</p> <p>The defendant asked the judge to rule, that, under said contract, he was not bound, upon discovering the fraud practised upon him, either to return the portfolios received, or to receive the other eight. The judge refused so to rule, and ruled that, if the defendant desired to rescind the contract for fraud, he should have returned or offered to return the portfolios.</p> <p>The jury returned a verdict for the plaintiff for $68.06, and the defendant alleged exceptions.</p>

Tort, for breaking and entering the plaintiff’s close, in Warren. Writ dated September 27, 1884. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows: The land in question is a triangular piece of land, situated on the northwesterly side of Maple Street;, in Warren. Maple Street is an old county road, leading from Warren to Springfield, via Brimfield, of which the original location and the time of making are unknown.

<p>The St. of 1882, c. 119, § 2, authorized a water company to take and hold any real estate necessary for laying and maintaining aqueducts and pipes, and to lay its water pipes through any private lands, with the right to enter upon the same and dig therein for that purpose. Section 3 provided that “said corporation shall, within sixty days after taking any land under the provisions of this act, file and cause to he recorded in the registry of deeds .... a description of any land so taken, sufficiently accurate for identification, with a statement of the purpose for which it is so taken, and shall also notify the owner of any such land of the taking thereof; and the title of the land so taken shall then vest in said corporation.” The corporation filed in the registry of deeds a plan, purporting to show the location of the “pipe line,” and containing a declaration that the corporation “has taken for the purpose of laying its main pipes the lands of ” certain persons named, “which lands are described as on the above plan.” The plan showed the courses and distances of the line through tracts of land which were marked with the names of the supposed owners. The point on a certain pond where the line began, the other terminus of the line, and the points where the line crossed the boundaries of the land of the persons named, were not defined with'reference to monuments, or distances from monuments; and the width of the line was not defined, although the plan had on it “ 14 inch pipe from pond to Main Street.” There was no declaration on the plan that the waters of any pond, brook, or river had been taken. Held, that the location was invalid.</p> <p>If a water company is authorized to take land for the purpose of laying its pipes, by a statute which prescribes the remedy for a person injured thereby, and the company does not comply with the requirements of the statute by filing a description of the land taken “ sufficiently accurate for identification,” a woman through whose land pipes are laid is not estopped to deny the sufficiency of the description by the fact that a petition (which was afterwards discontinued) to have the damages assessed for the taking was brought, under the statute, with her knowledge, in the name of her husband; nor is she to he considered as having thereby waived her right to bring an action at law against the company for the trespass.</p>

<p>Contract for goods sold and delivered, on an account annexed, which was headed “ John Lee, Agent, bought of Hosmer, Codding, and Company,” and the items of which were dated from September 12, 1884, to February 5,1885. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared in evidence, that, prior to May 25,1883, the plaintiffs, who were wholesale shoe dealers in Boston, had been doing business with said John Lee, who was a retail dealer in New Bedford, as agent for his wife, and had given him credit to the amount of about $100, and on said date had an account open on their books with him as “John Lee, Agent,” the form of which account was never changed; that, on said May 25,1883, the defendant, at the request of Lee, and for the purpose, as he testified, of obtaining for Lee a larger credit, went to the store of the plaintiffs in Boston, and had a conversation with one of the firm.</p> <p>The plaintiffs contended that, in this conversation, the defendant represented himself as the principal of John Lee, and that all the goods previously furnished to John Lee, agent, and then unpaid for, and all goods thereafter to be delivered to John Lee, agent, were thereafter on his, the defendant’s account and responsibility, and for which he was and would be personally liable.</p> <p>The defendant contended that, in this conversation, he merely explained to the plaintiffs the resources of which Lee as agent could avail himself, and, among them, the fact that he promised to assist Lee if necessary, and so long as Lee should conduct himself properly, to the extent of $1500 or $2000, as he had been in the habit of doing previously; and denie.d that he represented that he had any interest in Lee’s business.</p> <p>It also appeared that, on said date, Lee, as agent, was indebted to the defendant in the sum of about $1500. The plaintiffs testified that it was solely upon the strength of this conversation that they brought this action against the defendant; and that, upon this conversation, the credit was thereafter given to the defendant instead of to John Lee, agent for his wife, as before.</p> <p>Upon cross-examination, the defendant testified that he had never told or written to any one that John Lee was.his agent; that Lee was not his agent at the time of the conversation above referred to, nor at any other time; that his only relation to Lee was that of a creditor; and that there was no change in his relations with him after that conversation. The plaintiffs thereupon offered in evidence three paper writings, signed by the defendant, the first of which, dated October 31,1883, and addressed to “Winch Brothers,” was as follows: “Yours received in regards John Lee standing. I will say he is my agent here in Hew Bedford, and you may let him have what goods he wants until you hear from me to the contrary.” The second, dated October 26, 1883, was as follows: “ Gentlemen,—What Mr. Lee stated to you is correct, he is my agent in Hew Bedford, and in regards to the amount of goods he wants, let him have what he wants until you hear from me to the contrary.” The third, dated August 22, 1883, and addressed to the “ Bureau of Credits,” was as follows: “ Sirs, — I received your letter inquiring if I was responsible for John Lee bills. I am at present. If there is any that is not paid when due, send me word, and oblige.”</p> <p>The defendant admitted his signature to these several papers, but denied all knowledge of having written them, or of their existence, for any purpose, and especially for any purpose in any way affecting the plaintiffs.</p> <p>The defendant objected to the admissibility of'each of the papers as produced, on the grounds, first, that, being dated long after the conversation upon which the plaintiffs relied, they could throw no light upon the alleged contract; secondly, that, as they did not appear to he written to the plaintiffs, or in any way intended for them, or in fact communicated to them, they could have had no influence upon the plaintiffs in their course of business; and, thirdly, that, as there was no envelope, postmark, or other evidence that said papers ever left the possession of the defendant, they were not competent even to contradict the defendant, and in fact did not contradict him until some evidence was offered to show from what source said papers came.</p> <p>The judge admitted said papers for the purpose of contradicting the defendant’s testimony. There was some evidence tending to show that the first two of said writings were written and mailed by the order of the defendant; and the defendant further admitted, on cross-examination, that the third of said writings was written by him and sent to the Bureau of Credits.</p> <p>There was evidence tending to show that the defendant was in the habit of spending much time in the store of Lee, during the time covered by the items of the account in suit; and that he had given directions as to the affairs of said store.</p> <p>It also appeared in evidence, upon the cross-examination of the defendant, that on said May 25,1883, he called at the office of the Bureau of Credits, after calling on the plaintiffs.</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

Actioh on the Pub. Sts. c. 175, to recover possession of a certain tenement in Taunton. Writ dated July 6, 1885, and, as shown by the officer’s return, served on that day.

Tort for personal injuries sustained by Denis Blanchette, the plaintiff’s intestate, while in the defendant’s employ. Trial in the Superior Court, before Thompson, J., who reported the case for the determination of this court, in substance as follows: The defendant is a corporation engaged in the manufacture of cotton goods at Fall River.

Complaint to the Police Court of Gloucester for keeping and maintaining a common nuisance, to wit, a tenement in Gloucester, used for the illegal keeping and illegal sale of intoxicating liquors, on February 13, 1886, and on divers other days and times between that day and March 26, 1886.

Contract upon a promissory note, payable to the order of the plaintiff, and signed by the defendants. Answer: 1. A general denial. 2. Payment. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows: The action was tried upon the issues presented by the pleadings.

Petition to establish the truth of exceptions alleged by Darius Hadley and Margaret Andrews in an action brought against them by Jeremiah Watson, and disallowed by Mason, J., who presided at the trial in the Superior Court.

Complaint to the Central District Court of Worcester, on the Pub.

<p>An indictment for an assault upon a female child under the age of ten years, with intent to unlawfully and carnally know and abuse her, may be maintained upon § 28 of the Pub. Sts. c. 202, which provides that “ whoever assaults a female with intent to commit a rape shall be punished,” although the child makes no resistance.</p> <p>At the trial of an indictment, under the Pub. Sts. c. 202, § 28, for an assault upon a female child under the age of ten years, with intent to unlawfully and carnally know and abuse her, the defendant asked the judge to rule that the jury must be satisfied, not only that the defendant intended to gratify his passions on the person of the child, but that he intended to do so at all events, and notwithstanding any resistance on her part. The judge declined so to rule, and instructed the jury that they must he satisfied that the defendant made the assault with the intent charged in the indictment, and although the offence of carnally knowing and abusing may not have been committed, because of a change of intent after the assault was made, yet if the assault was made with the intent charged, they would be warranted in returning a verdict of guilty. Held, that the defendant had no ground of exception.</p> <p>At the trial of an indictment, under the Pub. Sts. c. 202, § 28, for an assault upon a female child under the age of ten years, with intent to unlawfully and carnally know and abuse her, the defendant introduced evidence tending to show that, at the time relied on by the government, he was in another State than that in which the offence was alleged to have been committed. The defendant asked the judge to rule that the burden of proof was on the government to prove that the defendant was at the time and place necessary for the commission of the crime alleged, and that, if the jury had a reasonable doubt of the defendant’s presence at such time and place, the defendant must be acquitted. The judge declined so to rule, and instructed the jury that the government must prove all the allegations of the indictment beyond a reasonable doubt; and that it must be proved that the defendant was at the time and place charged in the indictment, the offence charged being one which could not be committed unless the defendant and the girl were in immediate proximity to each other. Held, that the defendant had no ground of exception.</p>

<p>Contract, in two counts. Tbe first count was upon an account annexed for work and materials, and tbe second count was upon a promissory note. The case was submitted to tbe Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, upon agreed facts, in substance as follows:</p> <p>On April 15, 1879, the defendant was indebted to the plaintiffs in the sum of $882.56, the amount and debt intended to be covered by tbe first count .of the declaration. The defendant was then in embarrassed circumstances, and was endeavoring to make a compromise with his creditors at twenty cents on the dollar of his indebtedness; and certain of his creditors had signed such an agreement of compromise, which provided that it was “ not to be binding unless signed by all the unsecui’ed creditors.”</p> <p>The plaintiffs declined to sign said paper, unless the defendant would agree to give to them a note for the remaining eighty per cent of their debt.</p> <p>To this the defendant assented, and the plaintiffs signed said agreement, and received said note for eighty per cent. Thereafter the agreement for twenty per cent was signed by others of the creditors of the defendant, after the names of the plaintiffs.</p> <p>The agreement was not signed by all the unsecured creditors of the defendant.</p> <p>One Stewart, who had a claim against the defendant amounting to $185, refused to sign said paper, and was subsequently paid by the defendant in full.</p> <p>After said paper had been signed by all the creditors whose names appear upon it, the defendant paid to the plaintiffs and the other signers of the compromise twenty per cent of the amount of their claims. Except as above stated, no part of the account in suit has been paid. Demand had been made thereon prior to April 15, 1879.</p>

Contract upon a promissory note for $2500, dated January 21, 1858, payable on demand to Timothy Aldrich, the plaintiff’s testator, “ with interest annually,” signed by the defendant, and witnessed. Writ dated January 27, 1885. Answer: 1. A general denial. 2. Failure of consideration. 3. The statute of limitations.

<p>Bill in equity, filed April 1, 1885, alleging that the plaintiff was the owner of two parcels of land in Boston, each of which was subject to a mortgage for $1700; that the defendant was the assignee of the mortgages, and, contending that there had been a breach of condition of each of the mortgages, had entered upon each parcel for the purpose of foreclosing the mortgage thereon, and had advertised the same for sale on April 3, 1885, for breach of condition, under a power contained in such mortgage, the alleged breach being the non-payment of interest; that the plaintiff was, and ever had been, willing and ready to pay any and all sums of money that might be due under either of the mortgages; that he had offered to pay, and had tendered-to the defendant, whatever sums of money might be due and payable upon said mortgages, or either of them; and that the defendant claimed to be entitled, in addition to whatever sums might be due as interest on said mortgages, to a large amount for expenses and damages, and had refused to accept of the plaintiff the amount justly due, which had been tendered, and which the plaintiff was ready to bring and to pay into court.</p> <p>The prayer of the bill was for an injunction to restrain the sale, and for an account of what was due; and that the plaintiff might be allowed to redeem the premises from the mortgages.</p> <p>The subpoena issued on the bill was served on the defendant personally, on April 3, 1885, at thirty-five minutes after eleven o’clock in the morning.</p> <p>The answer left the plaintiff to prove his ownership; admitted that the defendant was the assignee of the mortgages, and had advertised for sale the lands thereby conveyed; and denied the other allegations of the bill.</p> <p>At the hearing, before Devens, J., the plaintiff put in evidence a notice which he had caused to be recorded, on April 3, 1885, at forty minutes after eleven in the morning, in the registry of deeds for the county where the lands included in the mortgage were situated, which set forth the pendency of this suit, in conformity with the Pub. Sts. c. 126, § 13. It also appeared in evidence that at the sale, which took place on said April 3, at three o’clock in the afternoon, the plaintiff gave notice to all parties present that this bill had been filed, and that the above-mentioned notice had been recorded; and it was proved that the plaintiff was the owner of equities in the premises referred to.</p> <p>The judge found that the interest was overdue on the mortgages, and that the defendant was entitled to sell the premises, and had advertised the same for sale; that, although the plaintiff knew that the interest was overdue, he neither tendered such interest, nor made any offer or tender which it was possible for the defendant to accept; that, although the plaintiff repeatedly said he would pay the same, was ready to pay the same, &c., on being urged to make any actual offer or tender thereof, he wholly failed to do so, and had no intention of delivering to the defendant any sum which he could accept; that, while the defendant was ready to receive the interest only, had the same been tendered, he also contended that the costs of advertising the lots for sale, &c., should also be paid; that the charges and costs claimed were not unreasonable, if he had any right to charge for counsel fees paid by him for preparation of papers for advertising; that he did claim for this $25, which was a reasonable sum; that, although the plaintiff objected to the charges as unreasonable, he failed to make any actual offer or tender whatever, although requested so to do if he objected to any of the charges incurred by the defendant; and that, both as to interest and charges, the plaintiff not only failed to make any actual tender, but wholly neglected and practically refused so to do when requested.</p> <p>On the whole case, the judge was of opinion that the bill should be dismissed, and that by filing the bill the plaintiff did not deprive the defendant of his right to advertise and sell the mortgaged property. The judge ordered the bill to be dismissed; and, at the request of the plaintiff, reported the case for the determination of the full court.</p>

<p>If there have heen successive sales of land to different purchasers, for non-payment of taxes assessed thereon, a bill in equity to redeem the land, brought by the original owner against the last purchaser, cannot be maintained, if the right to redeem, as against the first purchaser, has been lost by failure to bring the bill within five years, as specified in the Pub. Sts. c. 12, § 66, from the first sale, although five years from the last sale have not expired; and it makes no difference that the plaintiff is an infant.</p> <p>If there have been successive sales of land to A., B., and C., for non-payment of taxes assessed thereon, and the original owner of the land brings two bills in equity to redeem the same, one against B. and the other against 0., and the latter bill is dismissed because not brought within five years, as specified in the Pub. Sts. c. 12, § 66, from the sale to A., a decree entered in the suit against B., which was brought within the five years, that B., upon receiving what was due him, should execute and deliver to the plaintiff a deed of release of the land, may be vacated to enable B. to amend his answer, and set up the sale and conveyance to C., the plaintiff’s suit against him, and the decree in that suit.</p>

The eirst case was an action of tort for assaulting the plaintiff, and forcibly ejecting her from a car of the defendant.

Contract. The declaration was as follows: “ And the plaintiff says, that, on the twenty-ninth day of August, 1873, she became the owner of certain real estate situate in Milford in. said county, bounded and described in the deed of that date from John J. Callenna to her, recorded in the registry of deeds, B. 905, p. 470, and on the tenth day of April, 1874, she executed a mortgage deed with power of sale — her husband Edward Walpole joining therein — to George H. Ball,…

Trustee PROCESS. The H. 1ST. Slater Manufacturing Company, summoned as trustee of the principal defendant, answered that, at the time of the service of the writ upon it, it had not in its hands or possession any goods, chattels, or moneys of the defendant; and also answered certain interrogatories filed by the plaintiff.

<p>At the trial of a petition for the assessment of damages caused by the taking by a railroad corporation of land of the petitioner, recent reports made by one of the corps of United States engineers, transmitted by the Secretary of War to the United States Senate, and by that body ordered to be printed, are inadmissible in evidence for the purpose of showing that the road-bed of the corporation protected the remaining land of the petitioner from being washed away by the sea, and that a special benefit was thus received by the petitioner from the location of the railroad, which should be considered in estimating the damages.</p> <p>At the trial of a petition for the assessment of damages caused by the taking of land by a railroad corporation, the respondent tendered a deed of release of a part of the land, which purported to be “in consideration of one dollar and the settlement of claim for land damage.” The releasees were described in the deed only as “the heirs of C.” It did not appear that the petitioners were the heirs of C. Seld, that evidence of the release was rightly excluded.</p>

<p>Indictment for the murder of Richard JST. Lawton. Trial before Morton, C. J., and Holmes, J., who allowed a bill of exceptions, in substance as follows :</p> <p>After the drawing by the clerk of the court of the names of certain persons named, and before such persons were sworn, and before the jury were empanelled, the defendant’s counsel challenged each of said persons; and alleged as a cause of challenge, that each of said persons was not a legal juror, was not legally drawn, and was not competent to serve, for the following reasons: “1. Because it does not appear from any venire served for drawing and summoning jurors, that either or any of the persons above named were drawn by a selectman of the town in which he resides, in accordance with the provisions of the statute. 2. Because no indorsement or return is made upon any venire by any person having authority under the statute to make such indorsement or return, that either of said persons named was legally drawn to serve as traverse juror in this case, or at this sitting of the court. 3. Because the statute requires that jurors shall be selected by drawing ballots from the jury box; that this drawing of ballots shall be done openly in the presence of the selectmen by one of their number; that the names of the persons borne on the ballots so drawn should be indorsed on the venire under which the drawing takes place; that there is no return, indorsement, or certificate made by any person authorized thereto, or other competent evidence upon any venire returned, of the fact that the name of either of said persons above named was selected or drawn in the manner or by the person authorized by statute to make such selection or drawing.”</p> <p>The defendant, before either of said persons named was sworn, presented to the court the venire upon which each of said persons was summoned to attend court, as evidence of tlie causes of challenge alleged. No other evidence was offered by the defendant, and it was not disputed that the jurors in fact were properly drawn. Copies of the venires and of the officers’ returns thereon were annexed to the bill of exceptions. They were similar to those printed in the margin.*</p> <p>The court refused to allow each of said persons to be set aside for the causes assigned; ruled that, as it was not contended that the truth of the officers’ returns could be controlled, there was sufficient evidence that each person was legally drawn, returned, and summoned; and, against the objection of the defendant, permitted each of said persons to be sworn as jurors. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Indictment for obstructing a certain public way in Berkley, on January 1, 1885,'by placing a fence and gate across tbe same. Trial in the Superior Court, before Barker, J., who allowed a bill- of exceptions, in substance as follows: The way in question was a town way located in that part of Berkley known as Assonet Neck.

<p>At the trial of an indictment for keeping and maintaining a tenement used for the illegal sale and keeping of intoxicating liquors, if the defendant has a license of the first class, under the Pub. Sts. c. 100, to sell such liquors at the premises described, and the government relies on violations by the defendant of the conditions of his license, the defendant is not entitled to ask, on cross-examination, a witness for the government, who has testified to the character of the premises during the time covered by the indictment, and to his familiarity with the premises for eight years before, what was the character of the premises during the time covered by the indictment as compared with what it was before the defendant occupied under his license.</p> <p>At the trial of an indictment for keeping and maintaining a tenement used for the illegal sale and keeping of intoxicating liquors, the situation of the tenement and that of the one adjoining, which was also occupied by the defendant, may be such in reference to each other that the u§e made of the latter is evidence that the former was kept for the illegal sale of intoxicating liquors.</p> <p>At the trial of an indictment for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, it appeared that the defendant had a license of the first class, under the Pub. Sts. c. 100, to sell such liquors at premises situated at the corner of two streets; and the government introduced evidence tending to show, among other things, that intoxicated persons congregated on the sidewalk at the corner of said streets. The defendant asked the judge to rule “ that evidence of drunkenness or disturbance on the street and street corner, not shown to be connected with the defendant, or with the defendant’s premises, is not competent to prove violation by the defendant of his license.” The judge declined so to rule. Held, that the defendant had no ground of exception.</p>

Complaint for keeping and maintaining a common nuisance, to wit, a certain tenement in New Bedford used for the illegal sale and illegal keeping of intoxicating liquors, on April 1, 1886; and on divers other days and times between that day and May 22, 1886.

<p>Complaint, on the Pub. Sts. o. 100, § 9, cl. 4, alleging that the defendant, on June 1, 1884, at New Bedford, unlawfully sold intoxicating liquor to one Jane O’Connell, she being then and there a minor, under the age of twenty-one years. At the trial in the Superior Court, before Staples, J., the following were admitted by the parties to be the facts, for the purpose of the trial:</p> <p>On a certain day in June, 1884, Jane O’Connell was a minor under the age of twenty-one years. Her mother, a woman of full age, furnished her with money, and sent her to the defendant’s place of business in New Bedford, to buy a half-pint of whiskey. She told the defendant that her mother sent her for a half-pint of whiskey for the mother’s use. Thereupon the defendant delivered the whiskey to Jane, the mother not being present, and Jane paid him for it with the money so furnished by her mother. She then carried the liquor to her mother, and delivered it to her for her use. The defendant was duly licensed, at the time, to sell intoxicating liquor, and could lawfully sell and deliver it to the mother personally.</p> <p>The defendant asked the judge to rule that an allegation of sale to Jane could not be sustained upon these facts, as Jane was the agent of a disclosed principal.</p> <p>The judge refused so to rule; and instructed the jury that, upon these facts, if believed, the jury were warranted in convicting the defendant.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Indictment alleging that the defendant, at New York, in the State of New York, on November 8, 1881, was lawfully married to one Clara B. Power; and that he, on August 19,1886, at Attleborough, in this Commonwealth, unlawfully married one Nettie I. Rollins. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows:</p> <p>To prove the fact of marriage in New York on November 8, 1881, as alleged, the government produced as a witness Clara B. Lee, the alleged wife, who testified that she and the defendant left Attleborough on November 7, 1881, and went to Boston, where, late in the evening, they took the cars for New York, arrived there the next morning, and went to a clergyman and were lawfully married; that they remained there until about noon of the same day, when they returned to Boston, arriving there in the evening of that day, November 8; that they took a room and boarded at 43 Pleasant Street, in Boston, until the following Saturday, when they returned to Attleborough; and that they lived together as husband and wife, and were reputed to be such, until June 16, 1886, when she left him.</p> <p>The defendant testified that he and Clara never went to New York, and denied that any marriage was ever solemnized between them anywhere; and further testified that, on Monday, November 7, they went to Boston, as she stated; that they then went to 43 Pleasant Street, in that city, and cohabited until the following Saturday, when they returned to Attleborough, where they lived together as husband and wife until said June 16, when she left him. His testimony as to being and remaining in Boston from Monday night until Saturday was corroborated by the landlady of 43 Pleasant Street, and by her daughter.</p> <p>The defendant was seventeen years old, and said Clara was between fifteen and sixteen years of age, when they went to Boston together.</p> <p>On Wednesday, November 9, while in Boston, Clara wrote to her mother, in Attleborough, that she and the defendant had been to New York, and were married there. He had knowledge of this letter at the time, and, while they were living together, never denied that such was the truth; but, on the question whether he ever said that they were so married, or was merely reticent upon the matter, the evidence was conflicting.</p> <p>She testified that the clergyman by whom they were married gave her a marriage certificate, which she lost before they returned to Boston. No record of the marriage could be found in New York, though diligent inquiry was made therefor.</p> <p>The principal issue to the jury was whether they were married in New York, as testified to by Clara.</p> <p>To rebut her testimony, the defendant put in evidence, that, after the alleged marriage, upon being remonstrated with for supposed immodest or improper conduct, in going to ride and being out late at night with other men than her husband, she had said, “ I have a right to do as I please; ” and that the brother of the defendant asked her if she thought her conduct was becoming a married woman, to which she answered, “ I have a right to do as I please; you cannot prove our marriage.”</p> <p>A sister of the defendant testified, that the defendant and Clara lived together in the same house with her during the spring of 1883; that Clara had been out, without her husband, late on the night of April 26 and 27; that she left her home early in the evening of April 29, leaving her husband, and at about one o’clock in the morning of April 30 the witness heard voices near the house ; that the witness raised the window, and saw Clara walking and talking with a man named Titus, another woman accompanying them; that the witness said to her, “ Clara, come back into the house where you belong; ” that she answered, “ I will not, I have a right to do as I have a mind to; ” and that she went away with this man and woman, and did not return during the night.</p> <p>The defendant then asked the witness what was the chai’acter or reputation of the woman who was with Clara and Titus. This question was objected to; and the defendant stated" that he offered the evidence in connection with the conversation, as tending to show that Clara did not consider herself under marital obligations, and, in that view, he proposed to show that her associate then was a lewd woman. This evidence was excluded. The defendant also, in connection with what she had said, offered evidence to show that Clara then, and at other times during said cohabitation, associated with lewd persons, and at other times sought privacy with men other than the defendant; but the judge excluded all this evidence.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Replevin of a boat. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows: The plaintiffs put in evidence a mortgage to them of the replevied boat from William H. Chadwick, dated January 8, 1885, and duly recorded on January 9, 1885, in the office of the town clerk of Nantucket.

Petition to enforce a mechanic’s lien, under the Pub. Sts. o. 191. Trial in the Superior Court, without a jury, before Brigham,, C. J., who allowed a bill of exceptions, in substance as follows: The petitioner, a carpenter and builder, performed the labor stated in his petition, beginning on February 28, 1884, and-ceasing on March 19, 1884; and the prices for such labor, stated in the petition, were reasonable.

Replevin of the following articles, among others: three kettles, one upright tubular boiler of twenty horse-power, one iron tank, and one platform scale.

Writ of entry to recover a parcel of land in Nantucket. Trial in the Superior Court, before Bacon, J., who directed a verdict for the tenant; and the demandants alleged exceptions. The facts appear in the opinion.

Complaint dated September 11,1885, on the Pub. Sts. c. 80, §21, by Phineas W, Eeccord, alleging that the defendant, at Fairhaven, on August 24, 1885, was duly served, personally, by one of the constables of Fairhaven, duly and legally authorized to serve the same, with an order in writing issued by the board of health of Fairhaven, directing the defendant at his own expense, within forty-eight hours from the date of the service of said order on him, to remove a certain…

Writ oe entry, dated May 15, 1885, by the administrator of the estate of Joseph G. Horton, to recover a parcel of land in Rehoboth. Plea, nul disseisin.

<p>Tort for the conversion of certain machinery, tools, and goods. The defendant, a United States deputy marshal, justified under a writ against Daniel H. Murphy, Dennis F. Murphy, and Patrick E. Burke, copartners, and the present plaintiff, by virtue of which he attached and held the property in question. Trial in the Superior Court, without a jury, before Thompson, J., who allowed a bill of exceptions, in substance as follows:</p> <p>Said writ issued from the Circuit Court of the United States, was dated December 21, 1885, and. was returnable on May 15, 1886. The attachment was made on December 22, 1885.</p> <p>Daniel H. Murphy, Dennis F. Murphy, and Patrick E. Burke, as copartners, carried on the business of manufacturing jewelry at North Attleborough. On September 25,1885, they mortgaged said machinery, tools, and goods to the plaintiff, to secure notes which were payable on demand. At the time of said attachment, the mortgagee had not foreclosed said mortgage nor taken possession of said property, but the same was in the possession of the mortgagors. On December 23,1885, the plaintiff made a demand in writing on the defendant, setting forth the amount of her claim; but the defendant did not surrender to the plaintiff any portion of said property, nor pay or tender any part of the sum claimed within ten days after said demand.</p> <p>The plaintiff put in an auditor’s report in her favor, and rested. The defendant offered no evidence, but, upon the above evidence, requested the judge to rule that the defendant had the right to attach the goods, and to hold them by virtue of said attachment; and also moved for a nonsuit.</p> <p>The judge declined so to rule; and found for the plaintiff The defendant alleged exceptions.</p>

<p>Complaint to the Police Court of Lynn, for keeping intoxicating liquors on June 12, 1886,' with intent unlawfully to sell the same in this Commonwealth. Trial in the Superior Court, on appeal, before Pitman, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared that on June 12, 1886, the police officers of Lynn, while executing a search-warrant, seized a barrel of ale on the defendant’s premises.</p> <p>James H. Carroll, a witness for the government, testified that the defendant (not being represented by counsel) in said police court testified in his own behalf, among other things, that the ale seized was a present to him from one McCormick, and offered a receipted bill from McCormick to him, dated June 9, 1886, in which a barrel of ale was charged; that, the paper being read, the defendant said it was the wrong paper, and had been passed in by mistake, and requested the justice of the police court to return said paper to him; that the justice refused so to do, and ordered said paper to be impounded. The witness here identified the paper or receipt above referred to.</p> <p>The defendant then asked the judge to order that said paper be returned to him, it being then on file in the Superior Court.</p> <p>The judge refused to consider the question at that time, on the ground that it was a collateral matter, or to make any order .in the premises. Said paper was then offered in evidence by the government, and the defendant objected to the introduction of the same. The judge overruled the objection, and ruled that said paper was competent and admissible in evidence.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>The docket of a police court is the record of proceedings in that court until the record is extended, and is sufficient proof of those proceedings.</p> <p>If the clerk of a police court, in which a complaint under the bastardy act, Pub. Sts. c. 85, is made, instead of transmitting to the Superior Court certified copies of the complaint and warrant, as required by § 7, transmits the original complaint and warrant, and they are lost from the files of the Superior Court, secondary evidence of their contents is admissible at the trial in that court, and the case is properly tried upon the supplemental complaint.</p> <p>At the trial of a complaint under the bastardy act, Pub. Sts. c. 85, evidence of an act of sexual intercourse between the complainant and a man other than the respondent, from three to six months before the alleged bastard was begotten, is inadmissible, in the absence of evidence of any intimacy continuing between such man and the complainant down to the time of the begetting.</p>

Contract upon a written instrument, with counts for money-lent. Trial in the Superior Court, without a jury, before Pit-man, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Writ oe review to reverse a judgment obtained by the defendant in review against the plaintiff in review, wherein the principal question tried was the alleged misconduct of the defendant in review, while acting as a constable of the city of Boston, in the collection of a claim of the plaintiff in review from one Hellbach, in violation of the Pub. Sts. e. 159, § 45.

<p>Complaint, alleging that the defendant, on January 6, 1886, at Boston, he having a license of the first class, under the Pub. Sts. c. 100, to sell intoxicating liquors, unlawfully sold such liquors to Michael A. Parsons, who was then and there an intoxicated person. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows :</p> <p>It was admitted that the defendant was licensed, as alleged. Michael A. Parsons testified, for the government, that, on January 6, 1886, he went into a Methodist church on Bromfield Street, in Boston, at twelve o’clock noon; that he had been drinking more or less for three days; that upon the street he did not show it, and, when he entered the church, there was nothing about him that would indicate to any outside person that he had been drinking, or was under the influence of liquor; and that, although he had attended to his business as usual during the three days including the sixth day of January, he had no distinct recollection of what occurred.</p> <p>William H. Pratt testified that he was in said church on said sixth day of January at the noon prayer-meeting; that he saw Parsons there, and that Parsons was intoxicated; that he tried to keep him quiet; that Parsons went out of the meeting, and that the witness walked with him down Bromfield Street and up Washington Street; that near the entrance to Ordway Place, Parsons eluded him, and the next he saw of Parsons he was going up Ordway Place and entering the saloon of the defendant ; that Parsons walked rapidly, and he followed him as rapidly as he could; that he had no previous acquaintance with Parsons, and had never met him before the day in question: that when Parsons entered the saloon of the defendant, he followed him in; that Parsons called for whiskey and soda of the defendant, who was behind the bar; that he told the defendant not to sell to Parsons, as lie was drunk; and that the defendant poured out a glass and gave it to Parsons.</p> <p>Rev. D. H. Ela testified that he conducted the prayer-meeting at said church; that he saw Parsons in there; that, from his movements, he was apparently drunk; that his speech, as he came forward, was thick; and that he smelt of liquor, and had the look of a drunken man.</p> <p>Two other witnesses testified, in substance, that Parsons was drunk at the church at the time in question, and smelt and acted like a drunken man.</p> <p>One Vinal, a police officer, testified, for the government, that, shortly after two o’clock on January 6, he went with Pratt to the defendant’s saloon, and said to him that he was charged with selling liquor to an intoxicated person whom Pratt forbade him to sell to; and that the defendant replied, “ Yes, but he is no more intoxicated than you are; he is over in the Milliken House; go over with me and satisfy yourself,” — which Vinal and Pratt declined to do.</p> <p>The defendant testified that- he kept the saloon under his license; that Parsons was perfectly sober when he entered his place, as sober as when he testified a few moments before on the stand; that Pratt did not request him not to sell Parsons the drink; that he let Parsons have whiskey and soda; and that, on his asking for pay, Parsons told him he would make it all right, and the witness said it was right if Parsons so understood it.</p> <p>The defendant was corroborated by one Mallory, clerk of the Milliken House, who testified that Parsons was sober when he came from the defendant’s place to the Milliken House; and that the distance between the two places was not more than twenty feet.</p> <p>One Ely testified that he saw Parsons two hours after he was in the defendant’s place; and that Parsons was sober. Parsons himself testified that he had no recollection of being in the defendant’s place.</p> <p>The defendant requested the judge to instruct the jury as follows : “ The defendant must have sold liquor to an intoxicated person, knowing him to be intoxicated at the time when the sale was made, in order for the jury to convict him.”</p> <p>This instruction the judge declined to give, but instructed the jury that it was immaterial whether the defendant knew that Parsons was intoxicated at the time of the alleged sale; and that if Parsons was, in fact, then and there an intoxicated person, and the defendant sold him intoxicating liquor, as alleged in the complaint, it was sufficient to warrant a conviction.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Indictment, in four counts, for burning a building in Marlborough, on December 15, 1885. At the trial in the Superior Court, before Staples, J., it was contended by the government, and evidence was introduced tending to prove, that the fire was of incendiary origin. This was not disputed or denied by the defendant. The evidence relied upon by the government to convict the defendant was wholly circumstantial.

<p>A member of a voluntary association, formed for the enforcement in a certain city of the laws against the illegal sale of intoxicating liquors, and for the prosecution of violations of those laws, is incompetent to sit as a juror on the trial of a complaint for such a violation, instituted by an agent of tbe association, who is furnished by it with money to pay his expenses in carrying on the wort, and is also paid for his services.</p>

<p>JJ., who, for a commission, had agreed with C. to lend him his credit, and who had security for any liability which he might incur, offered to buy of A. for the use of C. a number of bales of rags at a certain price per pound. A. declined to sell at this price, and offered to sell at a higher price. Subsequently, in the absence of B., an arrangement was made between A. and C., by which C. paid A. the difference between the two prices, and A. delivered the rags to C., and charged B. with the amount offered by him. Held, that there was no contract between A. and B. Held, also, that the fact that B., on receipt of a bill of the goods, gave a promissory note for the amount, did not of itself, as matter of law, amount to a ratification of the transaction.</p>

Contract for money paid. Writ dated November 18, 1884. The answer, among other defences, set up the statute of limitations.

Bill in equity, filed February 12, 1884, to redeem land from a mortgage.

<p>Contract to recover $600, money bad and received by the defendant to the plaintiff’s use. Writ dated February 16,1885. The answer alleged that, in February, 1884, the defendant had in its hands and possession the sum of $542.25, standing in the name of Mary Townsend; that the defendant was summoned as trustee, and the funds were attached, in an action against John Townsend, as funds belonging to him, but standing in the name of Mary Townsend; that the defendant was charged as trustee of John Townsend in said action; that judgment was entered against the defendant as trustee on February 21, 1885, and execution issued thereon; that, upon demand of an officer, the defendant paid to him the sum of $74.71, to satisfy said execution ; and that, after satisfying said execution, and deducting the sum of $24.24, the costs of the trustee in said action, and sums withdrawn, there remained in the hands of the defendant, with the dividends, the sum of $485.44, which the defendant was ready to pay to the person to whom the same belonged.</p> <p>At the trial in the Superior Court, before Bacon, J., there was evidence tending to show that, more than three months before this action was brought, the plaintiff went to the defendant bank and asked the treasurer for the funds standing in her name, and that the treasurer replied that she had no funds in the bank; and the treasurer testified that he declined to pay the money to the plaintiff because the funds claimed were held by trustee process, and that, if they had not been so held, he would have paid her.</p> <p>The plaintiff testified that the money was her own, and this was not contradicted; and her husband, who was summoned in as claimant, disclaimed said funds.</p> <p>It appeared that the by-laws of the defendant bank provided that no funds should be withdrawn from the bank without ten days’ notice in writing of such intention to withdraw the same, and, when the sum was more than $200, said notice should be three months. It was not contended that any notice in writing had been given by the plaintiff; but there was evidence tending to show that the bank had paid without notice such sums as the plaintiff had demanded.</p> <p>The defendant contended that, upon the evidence and the pleadings, the action could not be maintained. The judge so ruled, and directed a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Contract upon the following order, dated November 2,1883, addressed to the plaintiffs, and signed by the defendant: “Please ship to F. B. Brightman, Charlton City, Mass., one fire-proof safe, with patent inside bolt work, size No. 3, for which I agree to pay sixty-five dollars after receipt of safe, as per back of this order. The safe remaining the property of Morris and Ireland until paid for.” On the margin of the face of the order was written: “ Sold by McGregor. This order subject to Morris and Ireland’s approval, and not to be countermanded. Safe to be delivered on cars in Boston, Mass.” On the back of the order, the terms of payment, by instalments, were specified, $10 on receipt of the safe, and the balance in monthly instalments, the last instalment being payable in five months. Writ dated December 28, 1883. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeai’ed in evidence that the plaintiffs, who are engaged in the business of selling safes, in Boston, received the order declared on by mail from one McGregor, their selling agent, who then resided in Worcester, on November 3, 1883, being the day after the same was signed and delivered to McGregor by the defendant; and that, on said November 3, the plaintiffs, without further knowledge or information from the defendant or their selling agent, shipped the safe, and delivered it on board the cars in Boston.</p> <p>The defendant, to prove that the order was never intended to take effect as a contract, against the plaintiffs’ objection, introduced in evidence the following letter, dated November 3, 1883, addressed to McGregor, and signed by the defendant: “ Please countermand order for safe given yesterday. I have thought the matter over since talking with you and cannot see my way clear to take it at present. No doubt my change of mind may annoy you, but I know my own affairs best, and you would be much more offended if I should fail to meet payments. When I have collected in my accounts closer, and am feeling more secure in regard to my bills, will then give you an order, say 60 or 90 days hence, but cannot in good judgment at present.”</p> <p>The defendant testified that, he sent this letter to McGregor by mail the day after he signed and delivered the order to McGregor; but the plaintiffs had no knowledge of this letter until informed of it by tbe following letter from tbe defendant to them, dated November 26, 1883: “ Your card at hand. I do not demur about payment of freight, but allowed myself to be over persuaded against my better judgment; but Mr. McGregor told me the safe would not be shipped for three or four days, so that I felt that I should have time to think the matter over, and did reconsider when the utter foolishness of the thing came upon me, when second thoughts showed me my inability to meet my payments. It was upon a Friday when I talked with Mr. McGregor, the very next mail conveyed to him a statement of my feelings and prospects, and requested him to countermand the order. In reply he telephoned me and said he would do so.”</p> <p>The defendant was further allowed to testify, against the plaintiffs’ objection, that the contract was signed and delivered to McGregor with the understanding that McGregor was not to transmit the order to his principals, but was to keep it in his possession for three or four days, during which time the defendant, if he should make up his mind that he did not want the safe, could so write to McGregor, and that thereupon McGregor would destroy the order, and, until the expiration of the three or four days, would not treat the signed contract as an order. The letter from the defendant to McGregor was sent' by the next mail.</p> <p>The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.</p>

<p>A., who was a brickmalcer, wished to borrow money of B., and, to secure him, leased his brick-yard to him, and thereafter the manufafcture of bricks was carried on by A. in B.’s name, all the profits belonging to A. A. also gave to B. a mortgage of land as further security. Certain bricks were manufactured for a contractor, who paid for them ; and certain others were also made for the same person, which proved to be of an inferior quality, and were rejected by him. In an annual statement of accounts between the parties, B. gave credit to A. for the bricks accepted, and also for those rejected, by the contractor. In the statement of the next year, the price of the rejected bricks was charged back against A., and on the same day B. gave to A. a paper, containing the following : “ This is to certify that I agree in final settlement with A., and when A. shall make good all demands or obligations which I may have against him, to deduct from the amount that may be due me” the amount allowed for the rejected bricks in the previous settlement. The next year B. gave to A. another paper, containing the following: “ This is to certify that I agree that, in final settlement with A., all the net profits I may make on the brick-yard during any and all of the years I may hire and run the same, shall go towards paying his indebtedness to me, as I run the yard for no other purpose than to assist him in paying such indebtedness.” A bill in equity brought by A. to redeem the land from the mortgage was referred to a master, who found that B. received on a day named a certain sum more for the bricks sold than he accounted for to A., which should be allowed to A. on final settlement; and that A. should also be allowed the price of said rejected bricks ; and, in stating the account between the parties, the master placed the item of the rejected bricks before that for the bricks sold, and reckoned interest to the date of such statement on all items on both sides of the account, except on the price of the rejected bricks, and on the sum so received by B. for the bricks sold in excess of that accounted for. Held, that A. was entitled to have interest computed on both sums from the date of the receipt by B. of the last-named sum.</p>

<p>At the trial of a petition for the assessment of damages caused by the taking by the respondent, a water company, of the water of a certain pond, and diverting it from flowing in its natural channel through the petitioner’s land, it appeared that the respondent, in 1883, acting under its charter, took the water of the pond; that the petitioner owned land near by, through which a brook from the outlet of the pond flowed ; that, some three miles down stream, the S. Company owned mills, and claimed to own the right to stop the flow of the water from the pond by a dam at the outlet, and also to draw down the water through the outlet, at its pleasure ; that, about seven months after the respondent had taken the water of the pond, the S. Company conveyed to the respondent all its right in and to the water of the pond ; that, in 1774, the proprietors of the common and undivided lands in jthe town where the pond was situated passed a vote, giving to one D. the right to drain off the water of the pond, and to build a dam at the mouth of it; and that a succession of deeds followed, beginning with one from D., with another from his representatives in 1818, and finally coming down, by mesne conveyances, to the S. Company, granting such rights as the grantors respectively had to the use of the pond and the outlet thereof, for stopping or letting off the water of the pond. The respondent asked the judge to rule that the respondent, by the deed from the S. Company, acquired and succeeded to the rights of that company in the pond and in the outlet thereof in all respects, whether for stopping or letting off the water from the pond ; and that the deeds' in this case showed a right in the S Company to stop and let down the water in the pond at its pleasure, and its right was conveyed to the respondent. The judge declined so to rule, and instructed the jury that a prescriptive right might be acquired by the respondent and those under whom it claimed to regulate the flow of the water of the pond, but that it must allow the water, of the pond to flow through the channel of the brook, and that the deeds were only some evidence of a prescriptive right to regulate the flow of water, Held, it being conceded that the grant to D. was only for his life, that the respondent had no .ground of exception.</p> <p>At the trial of a petition for the assessment of damages caused by diverting a stream from flowing throúgh a meadow of the petitioner, which had never been used for the cultivation of cranberries, although cranberries grew on it in a wild state, the petitioner claimed damages for the loss of the possible use of his meadow for the cultivation of cranberries ; and was allowed to ask a witness — who had never cultivated cranberries, but who knew of a cranberry bog, who was connected with a company interested in cranberry meadows, who had seen the petitioner’s land once, and who thought he knew something about cranberry culture, although he had never made any experiments in the raising of cranberries, or in the flow of water over them — what in his judgment was the value of the water that would be sufficient to flood the petitioner’s meadow. Held, that the respondent had no ground of exception.</p> <p>A bill of exceptions which merely states that a party offered the testimony of a witness on a certain point, and the judge excluded it, and does not state what the witness would have testified, shows no ground of exception.</p> <p>At the trial of a petition for the assessment of damages caused by the taking by the respondent of the water of a pond, and diverting it from flowing in its natural channel through the petitioner’s land, a bill of exceptions, alleged by the respondent, set forth that, on cross-examination of a witness called by the respondent, the petitioner was allowed to ask the witness as to a settlement made by the witness with the respondent for damages caused to the land of the witness by the same taking. The hill of exceptions did not state what the witness testified to on his direct examination. Held, that no ground of exception appeared.</p> <p>The declarations of a juror, after the verdict in a case has been rendered, as to his reasons for arriving at the verdict, and the manner in which the verdict was arrived at by the jury, are inadmissible in support of a motion for a new trial.</p>

Replevin of certain personal property. Writ dated December 13, 1884. The defendant, a deputy sheriff, justified under an execution against George L. Eames, by virtue of which he seized the property in question.

<p>Complaint, on the Pub. Sts. c. 98, § 2, to the First District Court of Eastern Middlesex, alleging that the defendant, at Melrose, on October 25,1885, “ that day being the Lord’s day, unlawfully did take part in a certain game, to wit, the game of cards, against the peace of said Commonwealth, and the form of the statute in such case made and provided.”</p> <p>In the Superior Court, on appeal, before the jury were empanelled, the defendant filed a motion to quash the complaint, for the following reasons: “ 1. Because no offence is charged. 2. Because there is no averment that the game of cards is an unlawful game. 8. Because there is no averment that the defendant took part in an unlawful game.”- Staples, J., overruled the motion.</p> <p>The defendant was then tried, and was found guilty; and he alleged- exceptions.</p>

Complaint under the Pub. Sts. o. 57, § 5, charging the defendant with having in his possession, on October 17, 1885, at Boston, adulterated milk, with intent unlawfully to sell the same.

<p>Indictment under the Pub. Sts. c. 57, § 5, charging the defendant with having in his possession adulterated milk, with intent unlawfully to sell the same. . Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:</p> <p>To prove that the milk was adulterated, the government called as a witness one Jordan, who testified that he was not an inspector of milk, -but was an analyst in the inspector’s employ; that he received from one Mullen, an employee of said inspector, the milk upon which this indictment is founded; and that he analyzed said milk. Under objection, Jordan was permitted to state the result of his analysis from memory, using a memorandum made by him at the time of analysis to refresh his memory.</p> <p>No evidence was introduced of any record or preservation as evidence of the result of such analysis or test; no evidence of any certificate of such result, and no certificate of any kind, was introduced; and no evidence of compliance with.the Pub. Sts. c. 57, §§ 1, 2, was offered.</p> <p>The defendant, when objecting to the introduction of this evidence of analysis by Jordan, requested the judge to rule as follows: “ 1. Before evidence of the result of an analysis of milk can be introduced, the government must prove that the requirements of the Pub. Sts. g. 57, § 1, have been complied with. 2. The government must prove that the requirements of the Pub. Sts. a. 57, § 2, have been complied with, before the analysis of milk can be introduced in evidence. 3. Evidence of the result of an analysis of milk is not admissible in evidence, unless a certificate or record of the result of such analysis has been made by a sworn inspector. 4. Evidence of the result of an analysis of milk is not admissible, unless said analysis is made by a sworn inspector. 5. Evidence of the result of an analysis of milk is not admissible, unless the facts of such analysis are testified to by a sworn inspector. 6. An analysis of milk made by any person other than a sworn inspector is not admissible in evidence.” The judge refused to give these rulings; and the evidence of Jordan as hereinbefore set forth was admitted.</p> <p>Jordan further testified, that, by reason of the requirements of the St. of 1884, c. 310, § 4, he reserved a portion of said sample, which he sealed; and, upon cross-examination, he described his method of reserving and sealing said portion as follows: he took one half of the sample of milk received by Mm; to that half part he added a few drops of carbolic acid to preserve it; then he poured the part containing the carbolic acid into a bottle, into which he put a cork; he then cut the cork close to the top of the bottle, and over it spread sealing-wax.</p> <p>A chemist and analyst called by the defendant testified that he received said half part so reserved from the inspector’s office between three and four months after July 18, the date of the taking of the milk; that, when given to him by Jordan, there was a cork only in the bottle; that it was not sealed; that he called Jordan’s attention to the fact that said bottle was not sealed, and that Jordan then retook the bottle and sealed it at that time; and that he analyzed said portion, and found that fermentation of the milk had taken place. The evidence of said chemist was contradicted by Jordan.</p> <p>The defendant requested the judge to instruct the jury as follows: “ 1. If the jury find, on the evidence, that the portion of the sample reserved was put into a bottle, and a cork only used as a cover to the bottle, this was not compliance with the St. of 1884, c. 310, ■§ 4, as to the sealing of such reserved portion. 2. If the jury so find the fact, they should find for the defendant.” The judge refused to give these rulings, and instructed the jury that they might consider the evidence as bearing upon the credibility of the government witness; that, if the government relied on the method of proof by certificate, provided in the statute, they must conform to all its provisions; but when, as here, they relied on the oral evidence of the analyzer, such evidence was not incompetent, and that it would warrant a conviction, if it satisfied the jury, beyond a reasonable doubt, that the milk which the defendant had in his possession with intent to sell was adulterated, within the definition of the statute.</p> <p>The defendant further requested the judge to instruct the jury, that, as matter of law, the reservation of a portion of the sample taken, with the addition of carbolic acid, is not a reservation of a portion of a sample in accordance with the St. of 1884, e. 310, § 4. This ruling the judge refused to give, and ruled that it was a question of fact for the jury, under proper instructions.</p> <p>The defendant further requested the judge to instruct the jury as follows: “ 1. There is no lawful evidence upon which the jury can find the defendant guilty of having adulterated milk in his possession, as no certificate or record of analysis has been introduced in evidence. 2. There being no evidence of any record of any test or analysis of the milk, in accordance with the Pub. Sts. c. 57, § 2, there is no legal evidence for the jury to consider.” These instructions the judge refused to give.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Complaint to the Municipal Court of the city of Boston, on the St. of 1885, c. 342, § 1, alleging that the defendant, on January 3, 1886, and on divers other days and times between that day and the day of making this complaint, July 3, 1886, at Boston, “did keep a certain room in the second story of the building numbered two hundred and twenty-one in Washington Street, in said Boston, and within said district, and did then and on said other days and times there occupy said…

- Complaint,, under the Púb. Sts. e. 100, alleging that the defendant, on September 8, 1886, at Boston, unlawfully exposed and kept for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth.

Indictment, against Charles A. Trider and Mary Smith, for adultery. Trial in the Superior Court, before Eammond, J., who allowed a bill of exceptions, in substance as follows: The government called as a witness Asahel A. Smith, who testified, in chief, that he was the husband of the female defend- . ant, and this was admitted by the defendants.

Complaint under the bastardy act, Pub. Sts. c. 85, alleging that, on May 8, 1885, at Worcester, the complainant was delivered of a female child, which was born alive, and was a bastard; that she accused the respondent of being the father of said child; and that he got her with child on or about August 1, 1884, at Worcester.

CoNTEACT praying for relief in equity, under the Pub. Sts. c. 151, § 5. In the Superior Court the case was referred to a master, who found the following facts : In October, 1878, the defendant, who was the owner of the whaling barque Clarice of Edgartown, sold to the plaintiff six sixty-fourths of the vessel, and made a contract with him by which the plaintiff was to go, as master of the vessel, on a whaling voyage of forty-two months, for a certain lay.

Contract upon a poor debtor’s recognizance, entered into under the Pub. Sts. c. 162, § 28, by Rodolphus J. Croacher as principal, and by the defendant as surety, and containing the usual conditions.

<p>Bill in equity, by the executors of' the will of Edward Merrill, to obtain the instructions of the court as to the construction of a codicil to the will. The case was heard by Holmes, «7., and reserved for the consideration of the full court. The facts appear in the opinion.</p>

<p>The St. of 1883, c. 176, § 1, authorized the city council of a city to lay out a street over tide water, and contained no reference to the Pub. Sts. c. 49. Held, that, by necessary implication, the provisions of this chapter applied, and that, under § 105, on a petition to the Superior Court by a person whose land was injured by the extension of the street, if the petitioner recovered a less amount than had previously been awarded to him, the city was entitled to its costs.</p> <p>The St. of 1883, c. 176, authorized a city to take lands for the purpose of abating a nuisance; and provided that, if a person whose land was taken should agree with the city as to the amount of damages, it should be paid forthwith ; if not, he might apply to the Superior Court, and the proceedings should be the same as in the case of lands taken for the laying out of highways. At the trial of a petition by a person whose land had been taken under the authority of the statute, it appeared that no agreement had been made between the parties as to the amount of damages ; and that no award had been made by the city. Held, that, under the Pub. Sts. c. 49, § 105, the petitioner was not entitled to costs.</p>

Writ of entry to recover a parcel of land in New Bedford. Plea, nul disseisin. Trial in tbe Superior Court, before Barlcer, J., who directed a verdict for the tenant; and the demandant alleged exceptions. The facts appear in the opinion.

<p>In an action for injuries sustained by the plaintiff while in the defendant’s employ, there was evidence that the defendant, a railroad corporation, was the owner of a yard, in which was a building used as a blacksmith’s shop, opposite the door of which was a track, which from the door to the corner of the building, a distance of about twenty-two feet, gradually approached the building, so that at the corner there was not room for a person to pass between the building and a car on the track; that the plaintiff was employed as a blacksmith, but was accustomed to assist, when called upon, to move cars in the yard; that he had been there for many years, and was familiar with the premises, but had not assisted in moving cars on this track, and had not been between the track and the corner of the building; that, on the day of the injury, in answer to a call from the foreman of the shop, he went to assist in moving a car on this track; that, when he took hold of the car, he saw the building and the space between the track and the building; and that, while moving the car, he was injured by being crushed between the car and the corner of the building. Held, that it could not be ruled, as matter of law, that the evidence would not warrant the jury in finding negligence on the part of the defendant, and the exercise of due care by the plaintiff.</p>

<p>Bill in equity, filed July 12,1886, to restrain the defendant corporation from entering upon and using the tracks of the plaintiff corporation upon a portion of Williams Street in New Bedford. The case was heard by Devens, J., and reserved for the consideration of the full court. The facts material to the points decided appear in the opinion.</p>

<p>The first case was a bill of interpleader, filed May 5, 1884, against William Pool, Catherine Pool, his wife, and Charles W. Anthony, to determine the ownership of a sum of money, being the surplus proceeds of a sale of land under a power contained in a mortgage to the plaintiff bank.</p> <p>The second case was a bill in equity, filed May 20, 1884, by Catherine Pool and William Pool, against said bank and Anthony, to set aside the sale and conveyance of said land, and to redeem the same from the mortgage.</p> <p>The cases were heard together by W. Allen, J., and reserved for the consideration of the full court; such decrees to be entered as law and justice might require. The facts appear in the opinion.</p>

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

Contract against the sureties on a recognizance, which recited that Silas F. Washburn had been brought before the Municipal Court of the South Boston District in the city of Boston, on a complaint charging him with the crime of adultery, and was conditioned that he should personally appear before the Superior Court for the transaction of criminal business next to be holden at Boston, at April term, 1885, “ and then and there to answer to said complaint and abide the order…

<p>A member of a beneficiary association, formed under the St. of 1874, c. 375, cannot designate his “ estate ” as the object of the money payable at his death.</p> <p>If a by-law of a beneficiary association, formed under the St. of 1874, c. 375, provides that no change of designation, by a member, of the person entitled to receive the aid derived from his membership, shall be valid without the consent and approval of the directors, the last will of the member, not approved by the directors in the lifetime of the member, has no force as a change of designation.</p> <p>If the executor of the will of a member of a beneficiary association, formed under the St. of 1874, c. 375, receives from the association the amount due on a benefit certificate, he take's it in trust to pay over to the person entitled thereto.</p> <p>Although the amount derived from the benefit certificate of a member of a beneficiary association, formed under the St. of 1874, c. 875, forms no part of his estate, yet, if his estate is very small, and a person whose right to such benefit is controverted knowingly receives from the executor, by the consent of the next of kin, a portion of the money derived from the benefit certificate, which portion is much larger than the estate, and, without being induced by fraud, releases his claim to the “ estate,” he thereby gives up all claim to the amount received from the benefit certificate.</p> <p>If the executor of the will of a member of a beneficiary association, formed under tiie St. of 1874, c. 375, lias received from the association the amount due on the death of the member, and the persons who by the by-laws may be designated as beneficiaries are dead, or have relinquished their rights, and the will cannot operate as a designation of the beneficiaries, the executor takes the money in trust to distribute it in accordance with the rules established by the statute of distributions, and not as assets of the estate.</p> <p>There is no presumption that the law of another State corresponds with a statute of this Commonwealth.</p> <p>The by-laws of a beneficiary association, formed under the laws of another State, provided that the sum payable on the death of a member should be paid “ to such person or persons as the deceased may have designated to receive the same; ” and, if no such designation had been made, then, in the order named, to the widow, children, mother, or “the legal representatives of such deceased member.” A member of this association designated said sum to be paid to his “ estate.” He left no widow, child, or mother, but left certain next of kin, and also made a will, by which he gave certain legacies, and which was admitted to probate in this Commonwealth. The association paid the money to the executor of the will. Held, in the absence of evidence that the designation was invalid by the law of the other State, that this money was to be administered in accordance with the will, so far as not required for other lawful purposes.</p>

<p>A contract of bailment, made by the bailee with the agent of an undisclosed principal, who is a minor, cannot be rescinded by the bailee on the ground of the bailor’s minority, without delivering the goods to him, even if the contract is voidable; and it is immaterial that the bailee would not have made the contract, if he had known that the bailor was a minor.</p>

<p>B., as administrator, acting under a license of the Probate Court, sold real estate of his intestate, and the proceeds were paid to his counsel. An action was then brought against B. on a private debt, and his counsel was summoned as trustee. Subsequently B. was discharged from his office, and an administrator de bonis non was appointed, who appeared as claimant of the fund. Held, that the trustee was entitled to be discharged; and that the administrator de bonis non was entitled to have the proceeds awarded to him.</p>

<p>In an action against a railroad corporation for malicious prosecution, the plaintiff’s evidence tended to show that he entered the defendant’s train at L., intending to go to S.; that he had previously ridden in the same train with the same conductor a great number of times within a year or two ; that, on this occasion, when the conductor asked him for his ticket, he offered a ticket of the defendant corporation, which read “ L. to S. and return,” on which he had already ridden from L. to S. on a previous day; that the conductor refused to accept the ticket, and demanded of the plaintiff payment of his fare; that the plaintiff replied that he had taken no money with him because he thought the ticket was good, and asked the conductor why it was not good, to which the conductor said that it was not good for a passage in that direction, and said the plaintiff must pay his fare or get off; that the plaintiff said that he did not want to walk either to L. or S., and that he would pay the fare at night, to which the conductor retorted that that was what all tramps said; that the plaintiff then offered to allow the conductor to keep the ticket as security; that the conductor refused the offer, and told the plaintiff that he would fix him when they got to S.; that the conductor, who was a railroad police officer, after informing the plaintiff that, if he did not pay fare, he should arrest him or have him arrested on arrival at S., allowed the plaintiff to retain his position in the train until he arrived at S.; that, when the train arrived at S., a police officer, who had been previously notified by the conductor, entered the train, and, at the conductor’s request, arrested the plaintiff, before he left or attempted to leave the car; that the conductor afterwards made a complaint against the plaintiff for evad- . ing the payment of fare by leaving the car without having paid his fare ; and that the plaintiff was tried on this complaint, the conductor being a witness, and was acquitted. Held, that there was evidence that the complaint was made without probable cause.</p> <p>A passenger on a railroad train refused to pay his fare. On the arrival of the train at the place where the passenger intended to leave the train, and before he left, he was arrested, at the request of the conductor, who was a railroad police officer, by a local police officer, without a warrant. Held, that the arrest was not necessarily, as matter of law, an arrest by the conductor as a railroad police officer. Held, also, that if the conductor, in making the request for the arrest, acted merely as conductor, and within the scope of his employment, the arrest was not authorized by the Pub. Sts. c. 103, § 18, and constituted an assault and false imprisonment, for which the passenger could maintain an action against the railroad corporation.</p>

Writ oe ENTRY to recover a parcel of land in Lynn. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the tenant, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.

<p>H the final account of the executor of the will of A. is allowed by the Probate Court, and an administrator de bonis non of A.’s estate assents to the account as allowed, the debts and charges against the estate having been paid, one entitled to a share of the reversion in a trust fund to be accounted for is a “person aggrieved,” within the meaning of the.Pub. Sts. c. 156, § 6, giving such person a right to appeal from the decree of the Probate Court.</p>

<p>Bill in equity, by the trustee under the will of Moses Perley, to obtain the instructions of the court as to the construction of the will. The bill alleged the following facts:</p> <p>Moses Perley died on May 25, 1857, leaving a will, which was duly admitted to probate, and contained the following provisions: “ 1st. After paying my just debts and funeral charges I give and bequeath to my beloved wife, Nancy Perley, the income and improvement of my house near Parker River Bridge in Newbury aforesaid, during her natural life, and also a handsome maintainance from my estate.</p> <p>“ 2d. I give and bequeath to my son, John Perley, six hundred dollars to him and his heirs forever.</p> <p>“ 3d. All the rest and residue of my estate, real or personal, of every name and nature, I give the income and the improvement of the same to my children, to wit, John Perley and Sarah Lambert, wife of George Lambert, and at their decease the said real and personal estate shall revert to their children, and also the above described estate given to my beloved wife after her decease, to them and their heirs forever.”</p> <p>At the death of the testator, his wife, Nancy Perley, his daughter, Sarah Lambert, wife of George Lambert, and his son, John Perley, were all living. The wife, Nancy Perley, died soon after the death of the testator, the daughter Sarah died on March 1,1865, and the son John died on June 26,1885. George Lambert is still living.</p> <p>Sarah Lambert had five children, four of whom were born during the lifetime of the testator, and were living at the time of his death; namely, Hannah, born on August 24, 1845; Georgiana, born on June 12, 1849; Maria C., born on September 4, 1851; and Sarah P., born on March 26,1855. One of said five children, named John, was born on December 19, 1857, after the death of the testator. Of said five children, John died on June 19, 1864, and Sarah P. died on February 8, 1868, both during their minority, unmarried and without issue; Maria 0. married William Clement, and died on February 8, 1871, without issue, and her husband is still living; Hannah married Charles Nowell, and died on September 17, 1869, leaving one child, named Emma J. Nowell, born on October 31, 1867, who is now living. The husband of said Hannah is dead. Georgiana married Henry E. Keyes, and is now living.</p> <p>John Perley, the son of the testator, had three children, all born after the testator’s death, namely, Sarah A., Susan B., now the wife of Patrick J. Hanley, and James M., all of whom are now living.</p> <p>The case was heard by 0. Allen, J., who made a decree that the devise in the third clause of the will created a vested remainder in the children of the testator’s children, opening to let in the afterborn children of said children; and the trustee was instructed and directed to distribute said fund as follows: one eighth to said Georgiana Keyes; one eighth to George Lambert, administrator of the estate of Maria C. Clement; one eighth to George Lambert, administrator of the estate of Hannah Nowell; one eighth to George Lambert, administrator of the estate of ,Sarah P. Lambert; one eighth to George Lambert, sole heir of John Lambert; one eighth to James M. Perley; one eighth to Sarah A. Perley ; and one eighth to Susan B. Hanley.</p>

<p>Trustee process. Writ dated September 22,1884. Arthui’ F. Williams was summoned as trustee of the principal defendant ; and Edward A. Foster appeared as claimant of the funds in the hands of the trustee, under an assignment from the defendant Downes. The case was submitted to the Superior • Court, on an agreed statement of facts signed by the plaintiffs, by the assignees in insolvency of the defendants, and by the claimant. That court found that the claimant’s claim was not sustained; charged the trustee upon his answer; and, the defendants being defaulted, ordered judgment for the plaintiffs. The claimant appealed to this court. The facts appear in the opinion.</p>

<p>Contract to recover the value of a satchel and its contents, alleged to have been lost, while the plaintiff was riding as a passenger in one of the defendant’s cars, through the negligence of the defendant’s servants. Trial in the Superior Court, without a jury, before Staples, J., who ruled that the action could not be maintained; found for the defendant; and reported the case for the determination of this court. If the ruling was right, judgment was to be entered for tbe defendant on tbe finding; otherwise, a new trial to be had. The facts appear in the opinion.</p>

<p>Neither the selectmen of a town nor its highway surveyors have power, without a vote of the town authorizing it, to make a contract for the construction of a way ordered by the county commissioners, and pledge the credit of the town therefor; and a vote of the town appropriating a certain sum “ for highways ” does not confer such authority.</p>

Tort for personal injuries occasioned to the plaintiff’s intestate by the alleged negligence of the defendant. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the admission of certain evidence, the nature of which appears in the opinion.

<p>In an action upon a written contract executed in the name of a corporation by its president, it appeared that there was no vote, either of the corporation or of the directors, giving the president authority to execute the contract; that, under the by-laws, the directors might confer upon him such authority; that there were five directors, of whom the president was one; and there was evidence that one director besides the president knew of this contract; but there was no direct evidence that the other three directors had any knowledge of it. The judge instructed the jury, that, if “the corporation, represented by its entire board of officers, knew of and ratified the contract, it would be as binding as if the corporation had authorized it by express vote; ” and further instructed the jury as follows : “ But all directors of a corporation are presumed to know what it is their duty to know, what they are able to know, and what they undertook to know when they accepted the responsibility of directors, and a jury have a right to suppose that the directors of a corporation have a knowledge of its concerns. In the absence of direct and positive evidence of the knowledge of the directors, jurors have a right to assume that they are doing what they were appointed to do, and that they know what they are appointed to know.” Held, that these last instructions were erroneous.</p>

Petition to tlie Superior Court, filed November 19, 1884, for the assessment of damages caused by the taking by the respondent of land and water-rights of the petitioner, under the St. of 1872, c. 188.* Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows: The petitioner introduced evidence tending to show that, prior to December 1, 1874, he was an inhabitant of Lincoln, and the owner in fee of land therein, bordering on…

Contract upon five promissory notes, payable to tbe order of tbe plaintiff, and signed by the defendant.

<p>A bill in equity by A., administrator of B.’s estate, and C., B.’s son, against the administrator of D.’s estate, D.’s two children, and the trustee under his will, alleged two successive partnerships, the first between B. and D., and the second between A., “ using and representing the estate of B.,” and D.; that D. died, leaving A. the surviving partner; that certain parcels of real estate were bought with partnership funds, and were partnership property, but for convenience the legal title of part was taken in the name of D., and part in the name of one of his children, as well as part in the name of B., and part in the name of C.; that certain personal property belonging to the firm was in the hands of D.’s administrator, and other personal property in the hands of D.’s other child; and that all the defendants refused to surrender or make division; and prayed for accounts, to ascertain what property was in the hands of the defendants severally, and that a division might be ordered. Held, on demurrer, that the bill was multifarious.</p>

<p>Tort, in ten counts, to recover the penalties provided by the Pub. Sts. g. 112, § 191, for several violations by the defendant corporation of an order passed by the board of railroad commissioners, under the St. of 1885, c. 338. The case was submitted to the Superior Court, and, after judgment for the plaintiff in the sum of $2000, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>A sleeping car company is bound to use reasonable care to guard from theft the property of a passenger occupying a berth in a car, and if, through want of such care, such personal effects of a passenger as he may reasonably carry with him are stolen, the company is liable for the loss; and the company cannot avoid its liability by posting in the car a notice disclaiming responsibility for personal property in berths, if the notice is not known to the passenger.</p> <p>In an action against a sleeping car company for the loss of a passenger’s property by theft, the evidence tended to show that the property of two passengers in one car was stolen from their berths during the same night; that the porter of the' car was found asleep at an early hour of the morning in a position from which no view could be had of that part of the car in which the passengers were asleep; and that the porter was required to be on duty for thirty-six hours continuously, which included two nights. Held, that there was evidence of negligence on the part of the defendant proper to be submitted to the jury.</p>

Libel for divorce, filed August 10, 1885, on the ground of adultery. Hearing before 0. Allen, J., who reported for the consideration of the full court the following case : Both parties lived in Massachusetts before their marriage to each other. They went to Portsmouth, New Hampshire, to be married, and were married there in May, 1884, he being twenty-one and she seventeen years old.

<p>Tobt for the conversion of a quantity of boots and shoes. The answer contained a general denial, and set up releases of the cause of action. The plaintiff filed a replication, alleging that the releases were obtained by duress; to which the defendant rejoined that, by reason of laches, the plaintiff could not avoid the releases for duress. At the trial in the Superior Court, before Mason, J., the plaintiff introduced in evidence an auditor’s report in Ms favor. The defendant offered no evidence; and the auditor’s report, and certain documentary evidence relating to the plaintiff’s insolvency, not material to he now stated, were all the evidence introduced. Upon this evidence, the judge ruled, as matter of law, that the plaintiff was entitled to recover, and directed a verdict accordingly; and the defendant alleged exceptions. The facts material to the point decided appear in the opinion.</p>

<p>In an action to recover damages .for breach of a covenant against incumbrances contained in a deed of land, oral evidence is inadmissible to prove that, a few days before the execution of the deed, the parties agreed that, in consideration that the defendant would execute the deed to the plaintiff for a certain sum, the plaintiff would assume a liability to an assessment upon the land 'for betterments.</p>

Action on the Pub. Sts. e. 175, to recover possession of a tract of land, with a dwelling-house thereon, in Stoneham, occupied by the defendants as tenants at will of Thomas G. Grundy and Susanna Bate, who, on September 1, 1888, executed a lease of the premises to the plaintiff. Writ dated November 14, 1888. At the trial in the Superior Court, before Mason, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions, which appear in the opinion.

<p>An action, under the Pub. Sts. c. 99, §§ 1, 2, to recover of the owner of a building treble the amount of money lost therein by gaming, does not survive against the legal representatives of the defendant, either at common law or by the Pub. Sts. c. 165, § 1.</p>

<p>If the mortgagor of personal property consents to the removal of the property from his possession by a third person, such removal does not amount to a conversion of the property; and the mortgagee cannot maintain an action therefor against such person.</p> <p>If personal property of two persons is mingled, and one makes a bill of sale of his ■ own, reserving the rights of all other persons, such sale does not of itself amount to a conversion of the property of the other.</p> <p>If the personal property of A. and B. is mingled, and, while in the possession of B.,' the claim of A. to a portion of the property is not controverted by B., who tells A. to take his own, this does not of itself amount to a conversion of A.’s property, although B. has previously sold the whole to a third person.</p> <p>If B. sells the property of A. to a third person, he is not responsible to A. fqjr the subsequent wrongful acts of the third person in respect to the property.</p>

<p>A. made two complaints against B., the first in order to obtain a warrant to search for intoxicating liquors alleged to be in B.’s possession with intent to sell the same contrary to law; the second, in order to obtain a warrant to search for intoxicating liquors in B.’s possession, alleged to be illegally transported by him, he having reasonable cause to believe that they were intended to be sold in violation of law. B. was acquitted on the first complaint, and convicted on the second. B. then brought an action against A. for malicious prosecution in making the first complaint. Held, that evidence given at the trial of the second complaint was inadmissible to show a justification for making the first complaint. Held, also, that evidence of the subsequent conviction of a third person for illegally selling a portion of the liquors so transported by B. was inadmissible to show probable cause on A.’s part for making the first complaint.</p> <p>In an action for malicious prosecution, in making a complaint in order to obtain a warrant to search for intoxicating liquors alleged to be in the possession of the plaintiff in a certain town, witli intent to sell the same contrary to law, the fact that the plaintiff collected money in the town for liquors brought there in the name of a third person, and for liquors brought to fill orders given to such person in the town, affords no justification to the defendant for making the complaint.</p>

Tort, by the administrator of John Moynihan, Jr. The declaration alleged that the defendants were contractors and builders, and as such were erecting a building on the corner of Pearl Street and Atlantic Avenue, in Boston; that among the contrivances, appliances, and machinery used in the erection of said building were a rope and gin, which were carelessly and negligently left unguarded by the defendants,- whereby the plaintiff’s intestate, travelling along the highway…

<p>If goods, consigned by A., tbe owner, to B., and of which A. has the right of immediate possession, are attached by C. upon a writ against B., and C. refuses to deliver them to A. upon his demand, B. having also notified C. of A.’s ownership of the goods and directed their delivery to him, A. may maintain an action of tort in the nature of trover against C. for the goods.</p>

Bill in equity to restrain the defendants, the proprietors of a mercantile agency, from publishing the plaintiff’s name and business standing in their records and books. The defendants demurred to the bill for want of equity. The case was heard on the bill and demurrer, before W. Mien, J., who reserved it for the consideration of the full court.

Tout for personal injuries received by reason of an alleged defect upon a sidewalk at the corner of Kirk Street and Merrimack Street in Lowell, consisting of an accumulation of ice and snow.

<p>A parcel of land in a city was bounded in part on W. Street and in part on M. Street. There were on the land a mansion-house, with a stable and greenhouse attached, fronting on W. Street, and a smaller house fronting on M. Street. The assessors of the city taxed this estate to the owner, and, in the valuation list, entered the estate as follows : “ House, W. St. $3200. House, M. St. $1600. Stable, $400. Greenhouse, $200. Land, 6 acres, $1800. Aggregate value of real estate, $7200.” Held, that, under the Pub. Sts. c. 11, § 53, the assessment of the tax was valid.</p>

<p>A cause of action for a personal injury accrued to a citizen of this Commonwealth, while in another State, against a railroad corporation which, under the laws of each State, operated its road as a continuous line. By the laws of the other State, such a cause of action did not survive his death, but his administrator might bring a special penal action, for the benefit of persons named. Held, that the administrator of the person injured could not maintain an action at common law in thi3 Commonwealth, under the Pub. Sts. c. 165, § 1, against the railroad corporation.</p>

<p>In an action against a railroad corporation for injuries to cattle, in the transportation of them from a ship lying at a wharf to quarantine grounds in W., by reason of improper cars being used, and by delay in their transportation, it appeared that the cars used were box cars provided with doors, but not with slats upon the sides to promote ventilation, and were also without cleats upon the floor by which the animals could maintain their footing; that the only quarantine grounds for imported cattle in this Commonwealth were at W.; and that the only railroad by which cattle could be transported there was that of the defendant. The defendant offered to show that box cars similar to those furnished for the conveyance of the plaintiff’s cattle had always been used by the defendant for carrying cattle to the quarantine grounds, and also how such cars liad usually been equipped in regard to their floors. The judge excluded this evidence; and ruled that the defendant might show that box cars were used by other railroads for the transportation of cattle, and the mode of equipment of their floors. Held, that the defendant had no ground of exception.</p> <p>In an action against a railroad corporation for injuries to cattle, in the transportation of them from a ship lying at a wharf to quarantine grounds in W., by ¡ reason of improper cars being used, and by delay in their transportation, a witness for the plaintiff was asked as to the value of a cow which was found dead among the plaintiff’s herd on its arrival at W., “ having regard to its market value at the time in the nearest place to W. that he knew of where there was a market for it, and the cost of getting it there, and the risk; ” and was further asked, “ on the same basis,” as to the injury to the herd, if it had at its arrival been put up for sale; and answered, that “ a hundred dollars a head would not have covered” it. The plaintiff subsequently asked of the witness what was his estimate of the injury to the cattle sustained at the time, “if such judicious and proper measures were taken as a prudent man would take to put them in proper condition for sale, to make them fit for market,” and “what his own estimate would .be of the actual damage, from the experience of that night, assuming that he could have an opportunity to cure it by the usual judicious and prudent course.” To this he answered that the damage would be from $20 to $30 a head. The verdict of the jury showed that no rule of damages more unfavorable to the defendant than $20 a head was adopted. Held, that the defendant had no ground of exception.</p>

<p>Where an assignment is made in trust by a debtor for the benefit of his creditors, one creditor cannot maintain an action at law against the trustee to recover his whole debt, or a larger part than the trustee admits to be due, although there has been wilful neglect on the part of the trustee in collecting the assets of the debtor.</p> <p>In an action by a creditor against a trustee under an assignment made by a debtor for the benefit of his creditors, the declaration was for money had and received, with interest thereon. The answer contained a general denial, and also a denial that the defendant had received the money, except the sum of $45.20, and alleged that, before the return day of the writ in the action, the defendant tendered to the plaintiff the sum of $47, including $1.80 costs, being all the costs that had accrued, which the plaintiff had received. The defendant was allowed to testify, that on the day of the date of the writ he made up his account as trustee, and there was due the creditors twenty per cent of their claims; that he tendered the sums mentioned in his answer, which were received by the plaintiff on account; and that the sum of $45.20 was more than twenty per cent of the plaintiff’s claim, with interest to the day of tender. The judge instructed the jury, that if they found that the sum paid, exclusive of costs, equalled twenty per cent of the amount due the plaintiff, with interest from the date of the writ, their verdict should be for the defendant. Held, that the plaintiff had no ground of exception.</p>

<p>Contract upon an account annexed. The answer set up a submission to arbitration, and an award in favor of the plaintiff; and that the amount of the award had been paid by the defendants. Trial in the Superior Court, without a jury, before Blodgett, J., who found for the plaintiff; and the defendants alleged exceptions. The facts appear in the opinion.</p>

<p>The holder of a large number of inland bills of lading of 'corn issued by a railroad corporation, which he had received as collateral security for a loan of money to the consignee, delivered them to the railroad corporation and took from it receipts, which set forth the indorsement of the bills of lading to the pledgee, that notice was to be given to him of the arrival of the corn, and the rate of freight. By the contract of pledge, the consignee agreed to pay the freight. As the corn arrived, the freight was charged to the consignee, and not to the pledgee; and, when delivering the corn, the corporation did not insist upon its lien for freight. The pledgee at one time gave the consignee an order on the railroad corporation for a portion of the corn, which stated that the consignee was to pay all charges of shipment. The consignee at another time obtained all the corn then in the possession of the railroad corporation by means of false representations, and, to facilitate the obtaining of the corn, paid the freight on the same. Held, in an action by the pledgee against the railroad corporation, that the defendant was entitled to deduct the freight from the value of the corn wrongfully delivered by it.</p>

<p>A. by his will devised the remainder of his estate to B., to be disposed of by him for such charitable purposes as he should think proper, and authorized him, or whoever should execute the will, to sell the real estate. The will also nominated B. as executor. B. was duly appointed executor, and sold the real estate, and died many years afterwards, not having rendered any account to the Probate Court; and his estate was insolvent. Held, that, under the St. of 1884, c. 293, an administrator de bonis non of the estate of A. was entitled to prove, before commissioners appointed upon the insolvent estate of B., a claim for the amount received by B. from the sale of the real estate, and not accounted for. Held, also, that the burden of proof was on the administrator of the estate of B. to show that the money so received was expended by B. as directed in the will of A.</p>

Writ of entry, dated July 24, 1885, against Margaret Brown, Michael Foley, and Patrick McLaughlin, to recover a parcel of land in Wakefield.

<p>A man and a woman were married in 1852. There was no ante-nuptiaf contract in regard to her property. She was possessed of a sum of money, and in 1856 bought certain shares of stock in a bank. The certificate was taken in tire name of her husband, but was kept by her, and in 1859 he gave her a paper, in ' which he stated that the certificate was purchased with her money, and promised to transfer it “ to her heirs or executors.” In 1864, the bank became a national bank, and in 1879, upon his written statement that the original certificate was lost or stolen, the husband received from the bank a new certificate, and gave a bond of indemnity against any claim on the old certificate. The old certificate was retained by the wife, who did not know that the new certificate was issued until after her husband’s death. The dividends on the sto.ck were for a time collected for the wife by a third person, but subsequently they were collected by the husband, and used by him for his own purposes ; and the wife never claimed any interest in these latter dividends. The bank always treated the husband as the owner of the stock. He died in 1883, his wife surviving him, leaving a will, by which he gave these shares of stock to their child. Held, that the husband had reduced the shares of stock to his possession. Held, also, that the husband, by giving the paper writing to the wife in 1859, did not make himself a trustee of the stock for her.</p> <p>A widow who has waived the provisions made for her in her husband’s will cannot maintain a bill in equity, against the executor of his will, who was his son, and another child, to recover her share of certain personal property, alleged to have been transferred to the defendants by the testator in his lifetime, in fraud of the plaintiff’s rights.</p>

<p>A. and B. executed a written agreement, by the terms of which certain securities were to be placed in the hands of C. for collection; if a certain sum with interest, which was less than the amount of certain promissory notes held by A. and indorsed by B., was paid by B. to A. on or before a day named, A. was to assign to B. all his rights in the securities, and C. was to hold the securities for B., and all sums collected on them were to belong to B.; if B. did not pay the sum stated to A. on or before the day named, C. was to apply the sums collected on the securities to the payment of the amount due upon the notes, and account to B. for the surplus. A. also covenanted that, if said sum was paid to him on or before the day named, he would not sue B. upon the notes. B. did not pay the sum named in the agreement within the time therein specified. Afterwards C. collected a certain sum upon the securities held by him, and paid to A. a sum which was less than the amount due upon the notes. Held, on a bill in equity by A. against B. and C. to enforce the trust created by the agreement, that time was of the essence of the- contract; that oral evidence was inadmissible to show any intention or understanding of the parties other than that expressed in the contract ; and that A. had not lost his right to have the money collected upon the securities applied in payment of the notes, by not demanding payment of B. or bringing suit against him upon the notes.</p>

<p>An order of a justice of this court, on a probate appeal, declining to allow an amendment to an issue of fact framed for the jury, cannot be revised by bill of exceptions, but only by appeal.</p> <p>On the issue whether a codicil to a will was induced by the fraud or undue influence of one of the legatees, the jury were instructed that the burden was on the contestant to satisfy the jury that the legatee exercised this fraud and undue influence ; and that .it was a question of fact for the jury whether the testator was induced to make it by the fraud and undue influence of the legatee. Held, that the person contesting the validity of the codicil had no ground of exception to the refusal of the judge to rule that the jury might find that so much of the codicil as contained a bequest to the legatee in question might be stricken out, and the remainder of the codicil established, if the codicil was induced by his fraud and undue influence.</p>

<p>Three manufacturers of a certain kind of curtain fixture, under different letters patent owned by them severally, desiring to avoid competition, formed a corporation in which they were the only stockholders, and an agreement was executed by the corporation, of the one part, and the three manufacturers, of the other part, by the terms of which the manufacturers gave the corporation the sole right to sell said curtain fixture for three years, the corporation agreeing to buy, at a specified price, all that the manufacturers might make, and the manufacturers acting as the selling agents of the corporation, and receiving a commission on goods sold by them. The agreement further provided, that, during the term of the contract, the manufacturers should not dispose of their patents except upon such terms that a transferee should be bound by the agreement ; and that they should not dispose of their stock in the corporation without the written assent of a majority of the stockholders. Held, that the agreement was not void as against public policy; and that the court would restrain by injunction one of the manufacturers from selling goods on his own account, in violation of the agreement.</p>

<p>Bill in equity, against Eliza 0. Goodell and Daniel M. Chamberlain, to set aside a deed of certain land in Southbridge, dated January 5, 1881, given by Goodell to Chamberlain, as fraudulent against creditors of Goodell, or upon a secret trust for her benefit.</p> <p>At the hearing in the Superior Court, before Bacon, J., the following issue was framed for the jury: “ Was the conveyance made by Eliza C. Goodell to Daniel M. Chamberlain of the real estate described in tbe plaintiff’s bill made with intent to defeat, delay, or defraud her creditors, or on a secret trust for her, express or implied, and did Daniel M. Chamberlain participate in said fraudulent intent and purpose ? ”</p> <p>After the evidence was all in, the plaintiff asked the judge to direct the jury, that, upon.all the evidence, they should find the issue in the affirmative, on the ground that there was no evidence to sustain the contention of the defendants; and the defendants asked the judge to direct the jury, that, upon all the evidence, they should find the issue in the negative, on the ground that there was no evidence to sustain the contention of the plaintiff.</p> <p>The judge granted the request of the defendants; directed the jury to find the issue in the iiegative; and reported the case for the determination of this court.</p> <p>If this direction was wrong, the verdict was to be set aside, and a new trial granted, unless the court should determine that the plaintiff’s motion ought to have been granted, in which case judgment was to be entered for the plaintiff. The nature of the evidence appears in the opinion.</p>

<p>Contract on a bond in the sum of $800, dated February 19, 1884, executed by the defendant, and conditioned for the conveyance by her to the plaintiff, upon tender by the plaintiff of a certain sum within one year from date, of a parcel of land in Fall River, described as bounded “ northerly, by other land of said Mary E. Tucker, sixty feet; easterly, by land of grantor, one hundred and five feet; southerly, by Field Street, sixty feet; and westerly, by land of Robert Holdsworth, one hundred and five feet.”</p> <p>Trial in the Superior Court before Hammond, J., who allowed a bill of exceptions, in substance as follows:</p> <p>A few days before the maturity of the bond the plaintiff notified the defendant that she would be ready to take the deed and pay the money, and called with her husband on the defendant and her husband on February 17, 1885, with the money.</p> <p>The defendant’s husband showed the deed he had had prepared. This described the southerly boundary as follows: “ South by the north line of contemplated Field Street.” The plaintiff’s husband read the deed through, and the plaintiff objected to the use of the word “ contemplated,” and made no other objection to the deed tendered, at any time before the trial of the case. The defendant refused to strike out the word “ contemplated.” On February 18, the parties again met at the defendant’s house, and the deed was again tendered; the plaintiff again refused to take the deed unless the word “contemplated” was struck out; this was again refused. On February 19, the parties again met, and the same objection was made. During the day, the plaintiff consulted counsel as to the legal effect of the word “contemplated,” and as to whether it complied with the terms of the bond; but the deed was not shown to counsel. In the evening the parties again met, and the plaintiff, besides her husband, brought with her one Greenwood. The plaintiff demanded a deed, and the defendant offered and tendered the same deed, and again the plaintiff objected to the use of the word “contemplated,” and demanded that it be struck out. Greenwood took the deed, read it through, and then compared it with the bond, and then stated to the defendant that the word “ contemplated ” was the only objection made. The plaintiff refused to take the deed. At the trial she said, on cross-examination, that the only objection she had to the deed was the use of the word “ contemplated,” and her husband testified the same way.</p> <p>The defendant’s husband in her presence said, “ I tender you this deed; ” the plaintiff refused to take it, and made no other objection. The deed never passed out of the defendant’s possession, except, at the various interviews, for inspection and comparison with the bond, neither did the plaintiff ever ask to take it for the inspection of her counsel. The plaintiff never showed the deed to counsel, or other person skilled in conveyancing. It was not contended by the defendant that the plaintiff or her husband had any special knowledge of conveyancing, or of the legal language of deeds.</p> <p>It appeared that the lot in question was one of a large number laid out on the defendant’s farm, a plan thereof having been made, and duly recorded.</p> <p>Field Street was not a public highway, and had no existence except on said plan, but was open to public travel its full width, and extended from Stafford Road, or Six Rod Way, to the public highways. The evidence at the trial showed that the boundaries in the deed tendered passed all the land in the bond by a good title and correct description, except only that the southerly boundary was south by the north line of contemplated Field Street, instead of by Field Street.</p> <p>During the trial, the judge ruled, as matter of law, that, under the circumstances above disclosed, the use of the word “ contemplated” was the same in legal effect, as far as the validity of the deed was concerned, as if it had been omitted. The plaintiff, at the close of the evidence, for the first time objected to the expression “south by the northerly line of contemplated Field Street,” as not in compliance with the terms of the bond. The defendant contended that, upon the evidence, there had been a waiver on the part of the plaintiff of any such defect. The judge ruled that this was a matter of fact for the jury to determine.</p> <p>Upon the question of waiver, the plaintiff requested the judge to instruct the jury as follows: “ 1. Unless the defendant offered to give a deed without the word ‘ contemplated,’ as requested by the plaintiff, the plaintiff cannot be held to have waived other objections to the deed tendered. 2. If the defendant had offered to give a deed omitting that word, the plaintiff would still have the right to object to the whole of the southerly boundary of the deed, because it is expressed ‘ by the northerly line of Field Street,’ instead of ‘southerly by Field Street,’ as expressed in the bond, whether she raised the objection before action brought, or on the completion of the evidence at the trial, and before argument to the jury. She was not bound to accept a deed bounding on the northerly line of a street instead of by a street. The deed tendered was not such a deed as the plaintiff was bound to accept. The words used, ‘ on the line of a street,’ instead of •' by a street,’ have not the same legal effect. 3. To make a waiver of a defect valid, the jury must be satisfied that it was made understandingly by the parties, and was so understood by them. If such a defect in the boundary is not such as an unskilled person would ordinarily understand, the defendant has no right to infer that it was waived by silence, unless from all the circumstances the defendant had a right to infer such a waiver. 4. If she had received the deed with ‘contemplated’ stricken out, and was ignorant of the distinction between bounding on the line instead of by the street, she still would have a remedy on her bond for failure to bound the premises as stipulated therein.”</p> <p>The case went to the jury only on the question of waiver. After instructing the jury on the point as to the use of the word “ contemplated,” as before stated, and the question of damages, the judge proceeded as follows:</p> <p>“ The deed however bounds by the northerly line, therefore you will see that there was a variance between the land called for by the bond and the land described in the deed. That variance consisted in excluding from the land called for by the bond that portion which was in the street. Now that was a material variance; it was not such a deed as the plaintiff was entitled to receive in that respect, and were it not for the question of waiver, I should rule to you, as matter of law, that it was not such a deed as the plaintiff was entitled to receive, and that no proper deed was tendered; but the defendant comes into court and says that is an objection which the plaintiff here has not a right to insist upon, because she waived it when the deed was tendered. You may have rights, gentlemen, and you may waive them, but there are times when you must insist upon them, or forever hold your peace as to those rights. The question is, whether you are satisfied upon the evidence that the plaintiff waived that objection to the deed. Did she waive it ? You have seen her upon the stand. You can understand the nature of the thing which she did waive, the nature of the variance, if anything was waived at all. Was it waived?</p> <p>“ The parties met apparently for the purpose of carrying out the contract. If that deed was unsatisfactory in any respect, it was then the duty of the plaintiff to make known to the defendant in what respect it was unsatisfactory, so that the defendant could fix it, and change it to make it satisfactory.</p> <p>“ The law upon the subject is substantially this: if the plaintiff at that interview waived all objections to the deed excepting this one arising from the word ‘contemplated,’ or if she used language at that interview which was intended and calculated to convey to the defendant the idea that she waived all other objections, then all objections which could have been fixed at that time are waived, and she has gone by the time when she could insist upon it.</p> <p>“ If the plaintiff waived, or used such language as was intended and calculated to convey to the defendant the idea that she waived, this objection to the deed, which she now insists upon, then upon the evidence in the case I instruct you that she cannot here insist upon it. If you find that she did waive it, then your verdict will be for the defendant. If you find that she did not waive it, then your verdict will be for the plaintiff.”</p> <p>After retiring to consider the verdict, the jury returned and the foreman asked for further instructions. The judge thereupon said to the jury:</p> <p>“ I instruct you, for the purposes of this case, that if the plaintiff was willing to take that deed, notwithstanding this variance, but insisted on a change in the other respect, — namely, as to the word ‘ contemplated,’ — whether she knew there was a variance or not in this case would be immaterial. If she was willing there to take that deed, and made no other objection to it, except that the word ‘ contemplated ’ was there when it ought not to have been, or by her language intended and calculated to give the plaintiff the idea that she would take the deed if she would change it as to ‘ contemplated,’ and made no trouble about this, then she cannot now insist that the deed was wrong in that particular.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Appeal, by the assignee in insolvency of the estate of Duncan S. Elliott, from a decision of the Court of Insolvency allowing the claim of the plaintiff against said estate. Trial in the Superior Court, without a jury, before Thompson, J., who allowed a bill of exceptions, in substance as follows:</p> <p>On July 16, 1868, Duncan S. Elliott executed a mortgage of his real estate to the Bristol County Savings Bank, to secure his promissory note of even date for the sum of $1700. This mortgage contained the usual power of sale.</p> <p>On July 8, 1869, Elliott gave a second mortgage of the same real estate to the plaintiff, to secure a promissory note of even date for $1300. This mortgage contained a power of sale, and in the clause against incumbrances excepted the prior mortgage to said bank.</p> <p>On February 20, 1885, a petition was filed- in the Court of Insolvency by one of Elliott’s creditors, to have him declared an insolvent debtor. Upon that petition the first publication of notice was on February 21, 1885. On March 18, 1885, Elliott was adjudged insolvent, and a warrant was issued. On April 10, 1885, the first meeting of creditors was held, and the defendant was duly chosen assignee, and an assignment of said debtor’s estate was duly made to him, and recorded.</p> <p>The bank never proved its claim in insolvency, but, proceeding under the power of sale in its mortgage, published according to law a notice of the foreclosure of the mortgage, and that the mortgaged premises would be sold by virtue of the power of sale on October 5, 1885. This notice was addressed to Duncan S. Elliott, to the plaintiff, and to all other persons interested in the mortgaged premises. No notice of the intended sale was given by the bank to the assignee or to the plaintiff, other than said published notice, and the plaintiff gave no notice of the sale to the assignee, and the defendant never knew of the sale until afterwards. In accordance with the notice, the bank sold the property under its power of sale, for the sum of $2150. The plaintiff was present at the sale by her agent, to see that the property was not sold for an inadequate price; and the property brought its fair market value.</p> <p>The mortgage to the bank contained this clause in the power of sale: “ rendering the surplus of the purchase money, if any there be, over and above the said sum and interest as aforesaid, together with a true and particular account of said sale and charges, to the said Duncan S. Elliott, the grantor, his heirs, executors, administrators, or assigns.”</p> <p>No account of the sale, or of the proceeds or payment of the proceeds, was ever given to the assignee by any one, until the presentation of the proof by the plaintiff. The bank accounted with the plaintiff for the proceeds of the sale, and, after deducting its claim, with the costs and charges of the sale, paid to her the balance, $337.43. This amount she indorsed upon her note on October 20, 1885. After the payment of this amount to her, she presented her claim for the balance due on the note to the Court of Insolvency, which allowed the same at an adjourned third meeting, on February 12, 1886. The defendant asked the judge to rule, as jnatter of law, on the facts in evidence, that the plaintiff was not entitled to have her claim allowed. The judge so ruled, and found for the defendant; and the plaintiff alleged exceptions.</p>

Contract upon a promissory note for $100, dated June 21, 1884, payable to the plaintiff one year from date, and signed by the defendant.

Petition to enforce a mechanic’s lien for labor performed or furnished, under an entire contract, by the petitioner, on a house for one Crispen, who was acting under a contract with the respondent.

Two’ actions OE CONTRACT, against Rickard Peaslee and Benjamin W. Morrill, copartners under the name of Benjamin W. Morrill, and against Charles H. Peaslee. The first action was brought to rehover $225, for the use and occupation of certain premises in Haverhill for the months of July, August, and September, 1885. The second was to recover $75, for the use and occupation of the same premises in the month of October, 1885.

<p>Contract, in two counts. The first count was for the breach of an oral contract to lay a hard-pine floor in a certain public hall, in consideration of the plaintiff’s agreement to cement one hundred and fifty-four yards of cellar bottom for the defendant. The second count was upon an account annexed for cementing said cellar bottom. Answer, a general denial. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff testified that, on April 5, 1884, he entered into an oral agreement with the defendant, by which he agreed to convey to the defendant two houses, situated on Washington Street, in Malden, in consideration of the sum of 15000, to he paid to him by the defendant, together with a lease of a hall belonging to the defendant for the term of five years, to be made by the defendant to the plaintiff; that, after the above agreement was made, but during the same conversation, the defendant promised to put a hard-pine floor into the hall when the plaintiff should request it; that he, the plaintiff, promised to cement the cellars in the two houses when the defendant should request it; that all agreements between the parties relating to the houses and hall, and all matters connected therewith, were made on said day; that the keys of the hall were delivered on that day, when the agreement to convey was completed; that a deed of the houses and a lease of the hall were made on April 7, 1884, by the plaintiff’s direction; and that on April 10 the deed was acknowledged, and both the deed and the lease were delivered, and the $5000 paid.</p> <p>The deed and the lease were put in evidence by the plaintiff.</p> <p>The plaintiff further testified, that, on April 15, 1884, he was requested by the defendant to cement the cellars, which he did, and soon afterwards requested the defendant to put the hard-pine floor into the hall, but the defendant' refused so to do, unless the plaintiff would first tell him what he was going to let the hall for; and that he repeatedly requested the defendant to put in the floor, and the defendant always refused, except upon that condition.</p> <p>Upon cross-examination, it appeared that both the deed and the lease were silent as to any agreement to cement the cellars and to put a hard-pine floor into the hall; and the defendant objected to the admission of oral evidence to prove such an agreement.</p> <p>At the close of the plaintiff’s evidence, the defendant requested the judge to rule that “ no verbal agreement between the parties to a written contract, made before or at the time of the execution of such contract, is admissible to vary its terms or to affect its construction; ” and that the plaintiff, upon the evidence, could not maintain his action. The judge so ruled.</p> <p>The plaintiff then requested the judge to allow the case to go to the jury upon the second count. The judge refused so to do; and directed the jury to return a verdict for the defendant upon both counts. The plaintiff alleged exceptions.</p>

<p>A testator-by his will gave to his grandchildren named, the survivors or survivor . of them, the use and improvement of all the residue of his estate during their lives, in equal shares; “ and, when they shall respectively decease, to their respective heirs, executors, administrators, and assigns.” Held, that the grandchildren took, as tenants in common, life estates in the real property of the testator, with contingent remainders to their heirs.</p> <p>A testator by his will gave to his four grandchildren, the survivors or survivor of them, the use and improvement of all the residue of his estate during their lives, in equal shares; “ and, when they shall respectively decease, to their respective heirs, executors, administrators, and assigns.” The four grandchildren survived the testator, and one of them, a woman, married and had issue born alive, who died before her. She died intestate, leaving a husband and the other three grandchildren of the testator surviving her; and she left no property other than her one-fourth interest in the testator’s real estate, which interest was less than §5000 in value. Held, that, under the Pub. Sts. c. 124, § 1, her husband took her one-fourth interest.</p>

<p>Contract for breach of an agreement to purchase the shares of stock named in the following written memorandum, executed in two parts :</p> <p>“ 200 shares. Boston, .Nov. 10, 1881. I have sold to F. H. Williams & Co. two hundred shares of the stock of the Milton Mining and Milling Company, at one and thirty-three one-hundredth dollars per share, payable and deliverable, buyer’s option, sixty days, with interest at the rate of six per cent per annum. W. J. Mann.”</p> <p>“ 200 shares. Boston, Nov. 10, 1881. I have bought of W. J. Mann two hundred shares of the stock of the Milton Mining and Milling Company, at one and thirty-three one hundredth dollars per share, payable and deliverable, buyer’s option, sixty days, with interest at the rate of six per cent per annum. F. H. Williams & Co.”</p> <p>Answer, a general denial. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff proved that the parties entered into the agreement as set forth in the foregoing memorandum, but submitted no evidence as to the organization of any company, corporation, organization, or association known as the Milton Mining and Milling Company.</p> <p>After the plaintiff had rested his case, the defendants requested the judge to rule that, upon the evidence, a verdict must be entered for the defendants for the following reasons: “ 1. Because no evidence other than the certificates of stock of the company, purporting to be duly issued, and the original contract executed by the parties, has been introduced to prove the existence of any organization, corporation, company, or association that had any right to issue the shares of stock, the price of which the plaintiff seeks to recover in this action. 2. Because no evidence other than the certificates of stock of the company, purporting to be duly issued, and the original contract executed by the parties, has been introduced to show the existence of the subject matter of this contract, the price of which the plaintiff seeks to recover in this action. 3. Because the plaintiff has not proven that any corporation or organization was ever duly and legally organized, authorized to issue certificates, for the payment of which this action was brought. 4. The plaintiff has not shown that the certificates were duly issued by any corporation or association legally organized.”</p> <p>The judge refused to give the instructions requested by the defendants; and ruled that the making of this contract by these parties recognized the existence of this corporation and the subject matter of this contract, and that no other proof of the same was necessary. The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

Tort, for an assault and false imprisonment. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows : It appeared that, on May 27, 1884, at about half-past one o’clock, p. M., a constable duly attached, on civil process, certain personal property of the defendant in the defendant’s bake-shop, and duly deputed the plaintiff as keeper thereof in said shop.

Contract upon an agreement, partly printed and partly-written, of which the following is a copy, the words printed in italics being those which were in writing: “ To James R. Osgood & Co. “ Boston, Mass., July 3,1880. “ Please register my name as a subscriber for one copy of the Memorial History of Boston, bound in cloth at $6.35 per volume, which I hereby agree to receive of James R. Osgood & Co., their agent or assigns, and to pay the price per volume indicated above, upon…

<p>Replevin of forty-two hogsheads, two tierces, and one barrel of molasses, on board the schooner Mary Ellen, in the port of Boston, alleged to be unlawfully taken and detained by Fendley Parsons, the master of the schooner, William H. Law, the owner of the schooner, and Frederic 1ST. Lambert, the alleged consignee of the molasses. Writ dated June 27, 1881. The answer was as follows: “And now come the defendants in the above-entitled cause, and for answer to the plaintiffs’ writ and declaration deny that they or any of them unlawfully and without justifiable cause took the goods of said plaintiffs, as alleged and described in the writ. And they further say, that all said goods were the property of and belonged to the defendants, and were not the property of the plaintiffs, and the defendants were and are entitled to the possession thereof.”</p> <p>Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiffs introduced evidence tending to show that the molasses replevied formed part of the cargo of two hundred and fifty-five hogsheads and twenty-three tierces shipped by Fowler and Company of Cienfuegos, Cuba, to the plaintiffs, as consignees under advances, on the brig Happy Return, of which one Creighton was master, at Cienfuegos, on April 25, 1881; that thereafter, on April 30, said brig with her cargo put into the island of Grand Cayman, in distress, in a leaking and unseaworthy condition, said island being about one hundred and eighty miles south of Cienfuegos; that afterwards, on May 11, said brig was condemned, and was sold by auction on May 24; that said cargo was landed there, and afterwards, on May 25 and 26, was sold by order of the master, by public auction; that at said sale the defendant Law, either directly or through agents, purchased out of said cargo the molasses replevied, and the same was by his agent, one Thompson, shipped on the schooner Mary Ellen to Boston, under invoice and consignment to the defendant Lambert.</p> <p>The plaintiffs also introduced evidence tending to show that such sale of the cargo at Grand Cayman was unnecessary, without authority from the owners, and unjustifiable, and was made without communication with the owners or underwriters; and that means of communication existed.</p> <p>The deposition of the defendant Law was taken by the defendants, and it was read to the jury by the plaintiffs, and the evidence introduced by the plaintiffs that the molasses replevied was consigned to the defendant Lambert was contained in this deposition, wherein Law also testified that he came to Boston on board the Mary Ellen at the same time she brought the molasses.</p> <p>The defendants introduced evidence tending to show that such sale was necessary and justifiable, and that no means of communication with the owners and underwriters existed.</p> <p>The defendant Lambert testified that the first he knew of this cargo of molasses was on June 27, 1881, when he found the captain of the Mary Ellen waiting for him at his office on Commercial Street in Boston; that he found that the vessel had arrived the night .before, and the captain-handed him the invoice of the molasses; that he then took some money and started for the custom-house to enter the molasses; that he did not then know</p> <p>where the molasses was purchased, that there was any salvage claim, or any of the facts in regard to its leaving Grand Cayman ; that he and the captain went directly to the custom-house, and there he entered the vessel and the cargo; that they were detained at the custom-house between two and three hours in attending to this business, having to see several persons and go from office to office; that he then paid the duties on the molasses, in all $344.80, and took a receipt therefor; that he at the same time gave a bond to pay any additional duties that might be found due upon regauging the molasses; that the inspector afterwards found there were seven hundred and twenty-four gallons over, and that, on July 30 following, he accordingly paid to the government the further sum of $48.95 as duties,'for which he took a receipt; that, although the goods at the time of this last payment had been replevied, he made the payment because he had signed the bond and was obliged to; that, while he was paying the duties on June 27, there was a person at the custom-house who made some inquiries about the cargo, but did not tell him what he wanted; that he saw him two or three times at the custom-house, and he was looking at the witness; that he followed the witness to two or three places, but he could not swear that he was in the cashier’s room when the duties were paid; that the witness got a landing permit, which he gave to the captain, and then went back to his office, and then one Magoun and two other persons, one of them the same person he saw at the custom-house, came in and demanded the cargo; that they represented the American Lloyds; that they replevied the molasses at that time; that they made no tender of the duties, and have never done so; that the cargo was still on board the vessel; that it was replevied from the hold of the vessel; that no freight was paid by any one; and that the vessel belonged to the man who shipped the molasses, R. M. Thompson, and was in his name.</p> <p>On cross-examination, the witness testified that there might have been other conversation between himself and the men who came to his office; that there was something said about an agreement as to bondsmen, but that he remembered nothing else; that he was acquainted with Magoun, and everything was pleasant between them; that he told them, if'they replevied it, he should have to give it up. “ Of course I refused to give up the molasses at first; they asked me before the replevin, and I said I would not give it up, and they replevied it. One of the parties was an officer.”</p> <p>Lambert also testified that he had known Law seven or eight years; and that he had transacted business with Law for one or two years, selling him goods for shipment to Grand Cayman, and receiving back cargoes from Law consigned to him, Lambert.</p> <p>No other evidence was introduced by either party in regard to Lambert’s acts or connection with the matter, or of the dealings or interviews of the plaintiffs with- him. The counsel for the plaintiffs stated in argument, that the plaintiffs were willing to repay to Lambert the duties upon said molasses paid by him.</p> <p>The defendants requested the judge to instruct the jury as follows: “ If the defendant Lambert paid the customs duties due to the government upon the molasses replevied, upon its arrival, in ignorance of any claim of the plaintiffs to title or possession, and made this payment with the knowledge of the plaintiffs or their agents, and without objection from them, they cannot maintain this action without proof that the amount so paid has been tendered to him.”</p> <p>The judge declined to give the instruction requested, and instructed the jury as follows: “ In this case, the plaintiffs make no question as to their equitable duty to repay to Lambert the amount of duties paid by him, and express their readiness to do so; and it may be taken for granted that, if he had claimed such repayment before replevin, it would have been their legal duty to have tendered such payment, but the law does not compel vain and formal tenders where the conduct of the party dispenses with them; and, if the jury are satisfied that the defendant Lambert made no disclosure to the plaintiffs or their agent of the amount of said duties, and made no claim whatever to the repayment, and that, from his relation to the cargo, and the general and absolute refusal to surrender the same, a tender on the part of the plaintiffs would have been useless, the defendants cannot now set up the failure to make such tender as a bar to this suit. That is the law which I give you in relation to the last prayer of the defendants.”</p> <p>The judge instructed the jury upon all the other questions raised at the trial, and to his instructions thereon no exception was taken. The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions.</p>

<p>An owner of land which is in the actual possession of a tenant cannot maintain an action of tort in the nature of trespass for an act which is not alleged in the declaration to he an injury to the reversion.</p>

<p>On the day of the date of a writ in which a bill in equity, by A. against B. to redeem land from a mortgage given by A. to B., was brought, C. bought A.’s equity of redemption in the land at a sale on an execution issued upon a judgment in an action against A., and a deed of such equity was executed and delivered to C., and was duly recorded. B. had previously assigned the mortgage and the note secured by it to C., and the assignment was duly recorded. Service of the writ was afterwards made on B., and C. was also made a party defendant. Neither the writ nor a copy was deposited in the office of the clerk of the court until subsequently, when the suit was entered. More than one year after the levy of the execution upon A.’s equity, C. conveyed the land by a quitclaim deed to A. B. received, while he held the mortgage, and before the suit was begun, a certain sum, which was more than sufficient to satisfy the mortgage debt. Held, that the bill could not be maintained to redeem the land; that the bill should be dismissed as to C.; and that A. was entitled to a decree against B. for the amount so received by him.</p> <p>On a bill in equity to redeem land from a mortgage, the defendant died pending the suit, and the executor of his will was made a party defendant. The bill was maintained only as a bill to recover a sum overpaid the original defendant by the mortgagor on the mortgage. Held, that execution should issue, as at common law, for the sum overpaid, with interest, against the goods or estate of the original defendant in the hands of the executor; and that another execution for costs should issue against the goods, estate, and body of the executor.</p>

Tort for the conversion of a lot of whiskey. The answer denied the conversion, and that the whiskey was the property of the plaintiff; alleged an assignment of the plaintiff’s claim to one Vanderveer, and the bringing of a suit thereon by Vanderveer in New York, where the defendant resided; and further alleged that the whiskey belonged to one Mrs. Reilly, of Boston, and was sold by due process of law against her.

<p>A complaint on the St. of 1886, c. 318, § 2, alleging that, on the first day of July, . 1886, the defendant had in his possession “ one pint of milk not of good standard quality, that is to say, milk containing less than thirteen per cent of milk solids, with intent then and there unlawfully to sell the same within this Commonwealth,” is sufficient, without negativing the exception of the months of May and June.</p> <p>The St. of 1885, c. 352, § 6, provides that § 9 of the Pub. Sts. c. 57, (which relates to the sale of adulterated milk,) “is hereby amended so as to read as follows.” The St. of 1886, c. 318, § 2, provides that § 9 of the Pub. Sts. c. 57, “ is hereby amended so as to read as follows.” In each section, after the words quoted, there follows a sentence which covers the whole subject of the original section. Held, that the St. of 1886, c. 318, § 2, was a valid enactment.</p> <p>The St. of 1884, c, 310, § 4, providing for the reservation and sealing, before commencing the analysis, of a portion of the sample of milk taken for analysis, is impliedly repealed by the St. of 1886, c. 318, §§ 1, 3.</p>

<p>A corporation, which is incorporated “ for the purpose of manufacturing fabrics of wool and worsted or of a mixture thereof with other textile materials,” may maintain an action for groceries, dry goods, and other similar articles, sold and delivered by and in the name of a person who is keeping a store as the undisclosed agent of the corporation, to a person not in the employ of the corporation, who retains and uses the goods, even if the contracts of sale are not within the powers conferred upon the. corporation by its charter.</p>

Motion to dismiss an appeal from a trial justice, on the ground that no legal appeal was taken. The Superior Court dismissed the appeal; and the plaintiffs appealed to this court: The facts appear in the opinion.

<p>Petition, filed August 5, 1884, under the St. of 1875, e. 200, § 3, for the appointment of commissioners to determine the parties benefited by defences to protect the banks of the Connecticut River, built in accordance with the provisions of said statute,* and to apportion the cost thereof.</p> <p>The record of the county commissioners made on August 4, 1884, which formed part of the petition, showed that the total expenditure to September 1, 1876, was $9221.15; and that- the total amount of principal and interest to the date of the record was $14,309.12. The difference between these amounts was arrived at by making rests in 1877 and 1880, and charging interest on the new principal composed of principal and interest, and deducting certain sums for materials sold in tliose years, these sums being less than the interest then due.</p> <p>Commissioners were appointed in accordance with the prayer of the petition; and they on December 20, 1884, filed in this court a report of their doings. The report stated that the amount expended in protecting the banks of the river, with accrued interest thereon, was $14,809.12 ; that the Massachusetts Central Railroad Company had located its road from Northampton to Boston, and partly constructed the same, and in so doing had built stone piers and abutments in and on the banks of the Connecticut River, in partial completion of a railroad bridge within its location, one of which abutments was located where the river had been making rapid, encroachments, and had partially undermined its foundation and threatened the road-bed adjacent thereto, and under and about which abutment considerable of the work in question was done ; that, in pursuance of the St. of 1883, c. 64,* Samuel N. Aldrich, Thomas H. Perkins, and Henry Woods had bought and then owned all the property which had belonged to the said Massachusetts Central Railroad Company, including said abutment and road-bed, with the purpose to convey the same to the Central Massachusetts Railroad Company; that a new corporation had been organized in accordanee with said statute by the name of the Central Massachusetts Railroad Company; and that the Massachusetts Central Railroad Company, Messrs. Aldrich, Perkins, and Woods, and thef Central Massachusetts Railroad Company were all represented at the hearing by counsel.</p> <p>The report further stated, that the commissioners determined and decreed that the towns of Hadley and Amherst, the city of Northampton, the county of Hampshire, and the Massachusetts Central Railroad, or the Central Massachusetts Railroad Company, or Samuel N. Aldrich, Thomas H. Perkins, and Henry Woods, whichever may turn out to own the franchise of said railroad, were benefited; that said town of Hadley should pay eight thirtieths of said expense, the town of Amherst one thirtieth, the city of Northampton eight thirtieths, and the county of Hampshire eight thirtieths; that the Massachusetts Central Railroad, or the said Samuel N. Aldrich, Thomas H. Perkins, and Henry Woods, or the said- Central Massachusetts Railroad Company, should pay five thirtieths of said expense; and that the commissioners submitted to the court which of the parties last mentioned should pay said five thirtieths.</p> <p>After the decision of this court, reported 140 Mass. 181, that the commissioners could not submit this question to the court, the case was recommitted to the commissioners; and they, after a hearing, found that Samuel N. Aldrich, Thomas H. Perkins, and Henry Woods, “the owners in fee of the property mentioned in chapter 64 of the laws of 1883,. are benefited, and should pay of the costs of said work five thirtieths of the whole.” In other respects the commissioners affirmed the report already made.</p> <p>After the supplementary report was filed in this court, an appeal to a jury was claimed by Northampton and Hadley, and by Aldrich, Perkins, and Woods.</p> <p>The cause was then tried before Field, J., who reported the questions arising at the trial, for the determination of the full court, in substance as follows :</p> <p>The city of Northampton contended, and asked the judge to rule, that its appeal opened to the consideration of the jury the entire question of what parties were benefited, and the proportion to be assessed to each. The judge ruled that the appeal only opened the question of the liability of the city, and the amount of it. Said city, by its attorney, stated in open court, that, unless its appeal opened the whole question of parties and proportions, it did not desire to have submitted to a jury the single question between it and the county whether the proportion should stand or be changed.</p> <p>All the parties appealing contended that there was such laches, in law and in fact, that no portion of the actual expenditure could be recovered. It was admitted that the entire expense, $9221.15, was incurred prior to September 1, 1876, and that no expenditure except for interest was made after said date. If the evidence was competent, it was agreed that the county commissioners would testify, and the petitioners offered to show by their testimony, that the delay to petition for the appointment of the special commissioners was to see the effect of their work done, and to determine if it was necessary to do any more work than had been done to properly protect the river banks. The judge rejected this evidence, and ruled that there was no laches which would prevent an assessment against parties benefited.</p> <p>It was also objected by the appellants, that interest charged formed no part of the actual expenditure which was to be assessed. The judge ruled that interest could be included.</p> <p>Aldrich, Perkins, and Woods contended, and asked the judge to rule, as matter of law, that they were not liable for any portion of said expenditure. It was admitted that the work done in 1875 and 1876 was a benefit to the structures, which were then the property of the Massachusetts Central Railroad Company; that said company was duly authorized, and did, by mortgage deed dated January 1, 1880, and duly delivered and recorded, convey all its franchise and estate to Thomas Talbot and others, in trust to secure certain bonds of said railroad company thereafter to be issued; that on September 1, 1884, said mortgage was foreclosed, by sale, and, under the authority of the St. of 1883, e. 64, Aldrich, Perkins, and Woods purchased the same for and on behalf of the bondholders secured by said mortgage, in accordance with the provisions of § 3 of said act, and still hold the same for the purposes provided therein. The judge declined to give the ruling requested.</p> <p>Aldrich, Perkins, and Woods further asked the judge to give the following ruling: The St. of 1875, c. 200, creates no lien on the franchise and property of the Massachusetts Central Railroad Company for said work, or against bona fide grantees taking title subsequent to the completion of said work. If Aldrich, Perkins, and Woods took their title on or after September 1, 1883, seven years at least after the work was completed, and there was no lien on said franchise and estate, they cannot be made liable for any assessment for said work.</p> <p>The judge refused, on the undisputed facts, to give these rulings, but ruled, for the purposes of the trial, that, if the structures and property of the Massachusetts Central Railroad Company were benefited, as found by the commissioners, the real property held by Aldrich, Perkins, and Woods, as grantees and trustees under the purchase and conveyance to them, pursuant to the St. of 1883, o. 64, might be held liable for the proportion of the expense found by the commissioners, although they personally could not be held liable.</p> <p>The county of Hampshire desired that the report of the special commissioners be accepted; and contended, as to the amount to be assessed, that all parties were concluded by the county commissioners’ record, made August 5, 1884, that the total, principal and interest, to August 1, 1884, was $14,309.12, as there stated; and that interest should be computed since said date on said sum.</p> <p>The judge ruled that the sum to be assessed (the same not' being otherwise in dispute than as before stated) was $9221.15, with interest from September 1,1876, to the date of the verdict, deducting certain admitted credits.</p> <p>The jury found that the actual expenditure incurred, under the St. of 1875, e. 200, including simple interest to the date of the verdict;, was $14,221.31; and apportioned twenty-five thirtieths of this sum between the county, the city of Northampton, and the towns of Hadley and Amherst, in the manner stated in the commissioners’ report. The verdict as to the remaining five thirtieths was as follows: “ And that the real property formerly of the Massachusetts Central Railroad Company, and now conveyed to and held by Samuel N. Aldrich, Thomas H. Perkins, and Henry Woods, pursuant to chapter 64 of the acts of 1883, pay the remaining five thirtieths, to wit, $2370.22; and that the said Aldrich, Perkins, and Woods pay the same as trustees out of said property held by them in trust.”</p>

<p>Under the St. of 1880, c. 196, § 3, providing that any beneficiary association may hold, as a death fund belonging to the beneficiaries of anticipated deceased members, an amount not exceeding one assessment, and that nothing in the section shall be held to restrict such death fund to less than 810,000, a beneficiary association holding such a fund, when a loss occurs, is not obliged to pay the loss out of the fund, but may make an assessment therefor; and the fact that it designates such fund as a reserve fund is immaterial.</p> <p>A certificate of membership issued by a beneficiary association to C. provided that a failure to comply with the rules of the association as to payment should render the certificate void. A rule of the association also provided that, if an assessment was not received within thirty days from the mailing of the notice, it should be taken “ as sufficient evidence that the party has decided to terminate his connection with the association, which connection shall thereupon terminate, and the party’s contract with the association shall lapse and be void; but said party may again renew his connection with the association by a new contract made in the same manner as at first; or for valid reasons to the 'Officers of the association (such as a failure to receive notice of an assessment) he may be reinstated by paying assessment arrearages.” C. was habitually unpunctual in. paying his assessments, and, in many instances, the association received the assessments after they were due, and the officers required him to sign certificates that he was in good health before’ they would reinstate him. The association levied an assessment, which C. failed to pay within thirty days, and he died without paying the same. Held, in an action by the administrator of his estate to recover the amount of his certificate of membership, that there was no evidence of a waiver by the association of the provision of the certificate as to payment of assessments.</p>

<p>Bile in equity, alleging the following facts:</p> <p>Jacob Foss died on June 2,1866. By his will, which was duly admitted to probate, after making many specific devises and bequests, he appointed three persons as executors of his will, and gave them authority to dispose of the remainder of his real and personal estate, stating it to be his wish that the sale of no part of his estate be forced, and none of the same be sacrificed; and that he did not anticipate that the whole could be disposed of “ under a term of ten years more or less.” The will further provided as follows:</p> <p>“ Thirty-fourth. All the rest and residue of my estate, real, personal, and mixed, I give, devise, and bequeath to my nephews and nieces, in severalty, to share and share alike, except William A. Foss, my brother Luther’s oldest son. And I hereby direct that my executors above named pay the same to my said nephews and nieces, in equal proportions, whenever, at the end of each six months, there shall be a sufficient sum to divide two hundred dollars or more to each, except William A. Foss aforesaid, until the whole of my estate is disposed of; as follows, to wit: To those that have severally arrived at the age of twenty-one years, one half of their portion; and to the guardians of those not arrived at the age of twenty-one years, one half of said minors’ portion; — the other half of said portions to be invested by my said executors in some safe and permanent security or securities, as they shall think best, and be by them held in trust, for the benefit of my said nephews and nieces, the income of which shall be equally divided between them during their lives, annually, or oftener, as my said executors may think best, according to the nature or source of said income; and, at the decease of either of the said nephews and nieces, I give and bequeath such one’s half portion and interest on the trust fund to his or her legal heirs: and, at the decease of all my nephews and nieces, I give and bequeath the principal of said trust fund to their legal. heirs, — including William A. Foss’s heirs, my brother Luther’s oldest son.”</p> <p>The executors named in said will having discharged their duties as executors and declined to act as trustees under said will, the plaintiff, on July 17, 1880, was duly appointed and is now sole trustee under said will, and has qualified by giving bond. The property left by the testator was wholly 'personal, and has so remained under the trust.</p> <p>On May 27, 1885, Lucy D. Sischo, a niece of the testator, and having, under the thirty-fourth clause of the will, an interest in the trust fund, died, leaving Esek Sischo, her husband, and Peninnah F. Sischo, her only child, fifteen years of age, surviving.</p> <p>There are twenty-nine nephews and nieces of the testator still living, including William A. Foss; and the said Peninnah claims that one twenty-ninth part of the trust fund should now be paid over to her or to her guardian, but the plaintiff is in doubt whether he is not bound to retain such portion in trust until all the nephews and nieces have deceased. »</p> <p>The plaintiff asked for instructions on the following points:</p> <p>1. Whether their portion of the principal of the trust fund should now be paid to heirs of the said Lucy D. Sischo, or whether the fund is to be kept undistributed until all the nephews and nieces have deceased.</p> <p>2. 'Whether the defendant Esek is an heir of the said Lucy within the meaning of said will, and if so, to what portion of the trust fund or income he is entitled.</p> <p>Esek Sischo filed an answer disclaiming any interest in the trust fund.</p> <p>The other defendants submitted their claims to the consideration of the- court, a guardian ad litem being appointed for Peninnah F. Sischo.</p> <p>Jabez Fox, Esq., appointed by the court to represent persons not ascertained or not in being, having an interest in the trust fund, filed an answer, in which he contended that the fund should be kept intact until all of the testator’s nephews and nieces should decease.</p> <p>The case was heard by Gardner, J., on the bill and answers, and reserved for the consideration of the full court.</p>

Appeal, by the trustee under the will of Thomas Cordis,* from a decree of the Probate Court, disallowing an item in the trustee’s account of $221.65, being the “ Reserve of income of government bonds to cover principal toward reduction of premium.” Tbe case was heard by Field, J., and reserved for the determination of the full court; such decree to be entered as justice might require. The facts appear in the opinion.

<p>In an action of replevin of household furniture and a piano, the plaintiff became nonsuit, and returned the property. It appeared that, during the time of the detention, the defendant did not purchase nor have the use of other similar property. The plaintiff asked the judge to instruct the jury, that the defendant’s damages should be fixed at the interest of the money value of the property during the time it was detained. Held, that this request was rightly refused.</p> <p>If a bill of exceptions sets forth a request for a ruling which was refused, and does not state the ruling given, and the request for a ruling was rightly refused, it will be presumed that proper instructions were given.</p>

<p>Contract, on an account annexed. At the trial in the Superior Court, before Aldrich, J., the plaintiff put in evidence the report of an auditor to whom the case had been referred, and rested. The auditor’s report did not set forth the testimony of the witnesses examined before him. The defendant testified as a witness. The plaintiff then called the auditor as a witness, and he was allowed, against the objection of the defendant, for the purpose of contradicting the testimony of the defendant, to state what the defendant testified to at the hearing before him.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Complaint under the bastardy act, Pub. Sts. c. 85, beginning as follows: “ The voluntary complaint, examination, and accusation of Nellie Tacey, of Lowell, in the county of Middle-sex, single woman, taken on oath before the justice of the Police Court of Lowell; ” and upon which was a certificate of the clerk, reciting that it was sworn to “ before said court.” In the Superior Court, the respondent moved to dismiss the complaint, for the following reasons: “ 1.

Petition to enforce a mechanic’s lien. At the trial in the Superior Court, before Mason, J., the petitioner offered a certificate of his account, duly filed in the registry of deeds; but it appeared, from the evidence of the petitioner, that the certificate was sworn to before a magistrate who was at the time the attorney of the petitioner in said matter.

<p>Contract, in two counts. The first count alleged that the defendant, for a valuable consideration, took the plaintiff’s heifer, and promised carefully to pasture it upon the defendant’s premises, and to return it to the plaintiff when requested to do so; and that the defendant neglected and refused to return the heifer to the plaintiff upon her request. The second count alleged that the defendant so negligently pastured the heifer that it was killed or died. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It was admitted that the defendant received the heifer at Mel-rose, in this Commonwealth; and that he was to drive it to Groton, New Hampshire, pasture it there during the summer, and drive it back to the plaintiff in the fall, for an agreed price to be paid by the plaintiff.</p> <p>The plaintiff sought to maintain the action on two grounds: first, that the defendant promised to return the heifer to the plaintiff in the fall, or to pay what it was worth if he did not return it; and secondly, that, in pasturing said heifer, the defendant was negligent, and that- by reason of such negligence the heifer was killed.</p> <p>No exception was taken to the instructions given to the jury as to the first ground on which the plaintiff sought to maintain the action.</p> <p>The defendant received the heifer in the spring, drove it to Groton with other stock, and kept it in his pasture of about three hundred acres with about seventy-five other heifers and cows until some time in October, when it was found dead in the pasture.</p> <p>The plaintiff offered evidence tending to show that the defendant said that the heifer was killed by wild steers or wild animals which got into the pasture. The defendant denied that he said this, and offered evidence tending to show that the death of the heifer was caused by her having been cast; and the defendant also offered evidence tending to show the character of the pasture, how it was fenced, how often he saw the heifer and the other stock in the pasture, and what care he took of them.</p> <p>As applicable to the second ground on which the plaintiff relied in support of the action, the judge gave to the jury full instructions as to the degree of care the defendant was bound to use in pasturing said heifer, and to these instructions the plaintiff did not except; but the judge also instructed the jury that the burden was upon the plaintiff to prove that the death of the heifer was caused by the failure of the defendant to use proper care.</p> <p>The plaintiff requested the judge to rule, “that, if the jury found that steers or wild animals got inside the pasture and killed the heifer, or if cows in said pasture did or caused injuries, the defendant would be liable.” The judge declined so to rule.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>The first case was a bill in equity, filed March 19, 1886, by the assignee of Michael H. Brennan, an insolvent debtor, to recover possession of five shares of the capital stock of the Phoenix Brewing Company, alleged by the assignee to be illegally withheld from him by William Smith and Robert S. Engle, co-partners under the firm name of Smith and Engle.</p> <p>The second CASE was a petition, filed May 3,1886, by Smith and Engle, to revise a decree of the judge of insolvency refusing the petitioners permission to expunge a portion of their proof of claim in the insolvency proceedings of said Brennan.</p> <p>The cases were heard together by Holmes, J., and reported for the consideration of the full court, in substance as follows:</p> <p>M. H. Brennan filed a voluntary petition in insolvency on October 12, 1885, and, with said petition, an offer of composition. On said day Smith and Engle were creditors of Brennan to the amount of $440, of which $200 was secured by -the pledge to them of said five shares of the Phosnix Brewing Company’s stock. On November 11, 1885, Robert S. Engle went to the office of the counsel of Brennan, and there signed and swore to the proof of the claim of Smith and Engle against Brennan’s estate, which proof had been made out by the attorney of Brennan for the whole amount of Smith and Engle’s claim against Brennan, without reading said proof and without seeing what was the amount of the claim inserted in the proof, said proof of claim being made in the form provided by statute, and containing the clause that the creditor had no security for said sum or for any part of said sum. Engle knew, at the time he made said proof of claim, that Smith and Engle held said five shares of stock as security for $200 of their claim.</p> <p>Smith and Engle voted upon the sum of $440 for the acceptance of Brennan’s offer of composition, as did all the creditors of Brennan who had proved their claims at the time said offer was confirmed, being twenty-three in number, and $8000 in amount; but said offer of composition was never carried out. Smith and Engle voted upon the sum of $440 for the election of said Nichols as assignee; and the result of the vote for assignee would have been the same whether Smith and Engle had abstained from voting or had voted against the election of Nichols. Smith and Engle had no fraudulent intent.</p> <p>Smith and Engle, on March 22, 1886, duly petitioned the judge of insolvency for leave to-expunge their proof of said $200 of their claim;* but the judge of insolvency,'after hearing, refused to allow them to expunge said proof, and dismissed their petition.</p> <p>The third meeting of the creditors of Brennan took place on May 14, 1886, and no dividend has been declared in said case. Brennan has not received his discharge, nor have Smith and Engle voted upon or given their assent to his discharge.</p> <p>The court was to make such order as might be required.</p>

<p>Contract against the defendant, as acceptor of the following order:</p> <p>“ $500. Boston, August 19, 1882.</p> <p>“Bartholomew J. Hartigan, pay to the order of Proctor & Drummey five hundred dollars, value received, anu charge the same to the account of</p> <p>.“James Walsh.</p> <p>“ To be ,paid out of the last payment.</p> <p>“ I accept this order.</p> <p>“B. J. Hartigan;”</p> <p>Answer, a general denial, and that the acceptance was conditional, and related to the last payment to be made on a contract which, at the time of said acceptance, was in force between said Walsh and the defendant; that Walsh never performed said contract; and that no last payment ever became due and payable to Walsh, to which said order would apply. By the terms of the contract, a copy of which was annexed to the answer, Walsh agreed to build a house for the defendant for $2700, and the defendant agreed to pay him therefor in instalments, the last two being $600 on the completion and acceptance of the building, and $800 in thirty-one days thereafter.</p> <p>After the former decision, reported 139 Mass. 554, the ease was tried in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiffs put in evidence the order, the signatures thereto being admitted, and introduced evidence, which was uncontradicted, that, at the time the order was accepted, the defendant was owing to Walsh the sum of at least $500; that he afterwards paid Walsh that amount; that that sum was the last payment actually made by the defendant to Walsh under said contract; that, relying upon the acceptance of said.order, they furnished to Walsh, for the defendant’s building, lumber to the amount of $250 after said acceptance; and that, before said acceptance, they declined to furnish any more lumber for the building, unless they were paid for what they had furnished, or an order was accepted by the defendant.</p> <p>The plaintiffs also introduced evidence of a demand upon the defendant for payment of the amount of the order, made immediately after Walsh broke his contract, and again after said building was completed by the defendant.</p> <p>The defendant was permitted, against the objection and exception of the plaintiffs, to introduce evidence tending to prove that the meaning of the words on the order, “ to be paid out of the last payment,” meant, and were understood and agreed by the parties to mean, that the order was only to be paid out of the last payment to Walsh provided for in the contract, and that, if Walsh did not fulfil his contract so that said payment became due and payable, the defendant would not be liable to tbe plaintiffs on said order. The evidence upon this point was conflicting.</p> <p>The defendant was also permitted, against the objection and exception of the plaintiffs, to introduce evidence that the defendant’s architect, Lafield, told the plaintiff Proctor to write into the order the words, “ to be paid out of the last payment under the contract;” that Proctor took the order and wrote in the words,. “ to be paid out of the last payment,.” and returned the order to Lafield, saying that there was not room to write the rest, and that would do just as well; and that Lafield and the defendant assented to it.</p> <p>It was not controverted that Walsh absconded, and did not complete the building according to the contract. It was also conceded that, at the time Walsh abandoned the work, the defendant had paid him in all $1300, the last $500 of it having' been paid after the acceptance of said order; that the payment was made without the knowledge or consent of the plaintiffs; and that that was the last payment that ever became due to Walsh from the defendant, or that was paid to him on account of said ■ contract. It was also in evidence, uncontroverted, that, after Walsh had absconded and abandoned the contract, the plaintiffs went to the defendant and offered to complete the building according to Walsh’s contract for the sum of $1200, — but whether the plaintiffs offered to apply the order in suit as a payment of $500 towards said $1200 was in dispute, — which offer the defendant declined, and completed the building by hiring the work done by days’ work. The building was so completed by the defendant, and has since been occupied by him.</p> <p>The plaintiffs requested the judge to instruct the jury as follows : “ 1. The order is evidence of an assignment by Walsh of so much of his money in the hands of the defendant to the plaintiffs, and the acceptance by the defendant is evidence that he would owe so much money, and this is a direct contract between the defendant and the plaintiffs to pay a certain sum at a time after the acceptance. 2. The direction to be paid out of the last payment is a designation of the funds out of which the payment was to be made; and if payment was due to Walsh after the acceptance which he received, then the defendant is liable. 3. The direction to be paid out of the last payment is a designation of the funds out of which the payment was to be made; or if a payment was due to Walsh after that, that must be regarded as the last payment to Walsh, unless another payment actually became due, and the defendant would be liable, upon the acceptance of the order, to the plaintiffs, and would be entitled to deduct the amount of the order from said payment. 4. Even if this was a part of the order, it was by no means a condition precedent to the right of action by the plaintiffs that Walsh should complete the contract personally, and the defendant could complete it, and, after taking out his expenses in so doing, he would be bound to apply the balance in the same manner as he would have done had Walsh completed the contract ; and, in completing it himself, he became liable to follow the contract, and not vary it, and use reasonable care for the benefit of the plaintiffs. 5. If the jury should find that the sum of $500, by the terms of the order, was to be paid out of the last payment under the contract existing between Walsh and the defendant, and also find that the defendant, in completing the building after Walsh left, did not follow the contract, but varied it, he abandoned the contract; and if, after the giving of .the order to the plaintiffs, he paid Walsh a sum equal to the amount of the order, and it was the last payment he paid him, ' this was the last payment under the said contract, and he should be held liable. 6. It is immaterial whether Walsh completed the contract or whether the defendant completed it; if, after this order was accepted, there was at any time the sum of $500 or any other sum due Walsh from the defendant under the contract, the defendant had no right to pay it or any part of it to Walsh without the knowledge and consent of the plaintiffs, but it was his duty to retain to the amount of the order on the defendant’s final or last settlement with and payment to Walsh, and pay the same to the plaintiffs. 7. The defendant, after accepting the' said order, had no right to make any advance to Walsh that should reduce the sum due Walsh on the final settlement below the amount of the order.”</p> <p>The judge declined to give the instructions requested, but instructed the jury that, under the pleadings, the verdict of the jury must be for the defendant, if, at the time of the acceptance, the words “ to be paid out of the last payment ” were understood and agreed by the parties to the order to refer to the last payment called for by the contract; that, if they believed the words “ to be paid out of the last payment ” were understood and agreed by the parties to refer to the last payment called for by the contract with Walsh, and if Walsh failed to compíete the contract without fault on the part of the defendant, the time of payment never arrived, and the fund from which payment was to be made, never existed, and the defendant was not liable on this acceptance, under these pleadings; and that, by the legal effect of the words “ to be paid out of the last payment,” considered in connection with the contract between the defendant and Walsh, the order was not payable until thirty-one days after Walsh had fulfilled that contract, and then out of the $800, the fund which then would become due to Walsh.</p> <p>The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Complaint to the Police Court of Somerville, on the Pub. Sts. e. 100, § 17, alleging that the defendant, on September 13, 1886, at Somerville, “ said Somerville being then and there a city in which licenses of the first five classes for the sale or for the exposure or keeping for sale of spirituous or intoxicating liquors are not granted, did bring into said city of Somerville intoxicating liquor, to wit, lager beer, with intent then and there in said Somerville to sell the same himself in violation of law, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>In the Superior Court, on appeal, before the jury were empanelled, the defendant moved to quash the complaint, because it did not set forth any offence known to the law, and did not follow, in substance, the Pub. Sts. c. 100, § 17. Thompson, J., overruled the motion. The defendant then entered a plea of nolo contendere, which was accepted by the government; and alleged exceptions.</p>

Complaint for keeping and maintaining a common nuisance, to wit, a certain tenement in Natick used for the illegal sale and illegal keeping of intoxicating liquors, “ on the first day of August, in the year of our Lord eighteen hundred and eighty-six, and on divers other days and times between that day and the third day of September, and on said third day of September,” 1886. ■ In the Superior Court, on appeal, before the jury were empanelled, the defendant renewed a motion…

<p>Under the Pub. Sts. c. 104, §§ 14, 22, providing that the openings of elevators and well-holes upon every floor of a factory shall be protected in a manner specified, and that any corporation, being the owner of a factory, shall be liable for all damages suffered by any employee by reason of a violation of the statute, an employee cannot maintain an action against his employer for an injury caused by such violation, unless at the time he was injured he was in the exercise of due care.</p> <p>In an action for personal injuries occasioned to the plaintiff, while in the defendant’s employ,.by falling into an unguarded elevator well in the basement of the defendant’s mill, there was evidence that the plaintiff was thirty-seven years old, and had been in the defendant’s employ for four or five years ; that by his contract he was to have a certain sum per day while learning, and more when he was taught; that all the floors of the mill, except the one where he was injured, were provided with self-closing hatches at the elevator openings ; and that at the opening where the plaintiff fell it was so dark, by reason of the construction of the mill, that the opening could not be seen or discovered until reached. The plaintiff testified that he knew of the existence of the elevator well, and was looking for it to shun it when he fell into it; that he knew it was there somewhere, but did not know exactly where; that he was walking quite fast; and that he went into the elevator hole so quick that he did not know whether he was stepping long or short. Held, that there was no sufficient evidence of due care on the part of the plaintiff to entitle him to maintain the action.</p>

<p>A. and B. entered into a contract in writing, by the terms of which A. agreed to work for B., at a certain rate per day, for a year, and, if B. continued in business, at an advanced rate for the second year. During the first year, B. took in C. as a partner, and the business continued as before, except that B. gave up to C. the direction of the work. A. worked for the firm, after its formation, until the end of the two years, receiving his pay weekly at the rate agreed upon for the first year. He then brought an action against B. on the contract to recover the extra rate for the second year. The judge admitted evidence of admissions of C. in regard to the contract; instructed the jury that, if the defendant continued business with a partner during the second year, he would be continuing business within the meaning of the contract; and left it to the jury to determine, as a question of fact, whether the defendant gave up business. The jury returned a verdict for the plaintiff. Held, that the defendant had no ground of exception.</p>

<p>If A., the owner of a parcel of land, agrees with B. that B. may take gravel from the land at a certain price per cubic yard, and A. afterwards makes a deed of the land, this does not operate as a revocation of the license to B. to enter upon the land, if thé deed is colorable, and A. remains in possession and control of the land; and A. may maintain an action for gravel taken from the land by B. after the conveyance.</p>

<p>Contract, by persons doing business in Philadelphia in the State of Pennsylvania, against Eliza F. Booth and Margaret Kidd, copartners, doing business under the firm name of the Spring Brook Mills Company, on an account annexed, for goods sold and delivered in 1883. Writ dated May 17, 1884. Answer, a general denial.</p> <p>Trial, in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence tending to show that the business of manufacturing woollen goods had been carried on by the defendants and other persons, as stated below, at Millville, in the town of Blackstone, from August 20, 1881, to January 1,1884, under the name of the Spring Brook Mills Company, B. Booth, Agent; that the defendants carried on said business under said name from August 20, 1881, to October 8, 1882, when they contended that they sold said business to Benjamin Brynes and John D. Brynes, who continued to carry on said business under the same name from that time to January 1, 1884; that the purchasers had nothing to do personally with the running of the mill, but the business was conducted the same as before, with B. Booth as agent, and with the same employees ; and that neither the plaintiffs nor their agents ever knew the purchasers or heard of them, or either of them, until a short time before this trial.</p> <p>It also appeared that the plaintiffs had dealt with the Spring Brook Mills Company during all of said time, and that at the time the defendants sold out, or pretended to sell out, as aforesaid, the Spring Brook Mills Company did not owe the plaintiffs anything.</p> <p>It also appeared in evidence, that, at the time the defendants went into business, they filed married women’s certificates in the town clerk’s office at Blackstone, showing that they were doing business on their separate accounts, as copartners, under the name of the Spring Brook Mills Company, B. Booth, Agent; that, at the time they sold said business, they filed a statement in said town clerk’s office, showing that they had ceased to do b.usiness; and that the defendants properly advertised the dissolution of their firm in a newspaper called the Uxbridge Compendium, which was the newspaper published nearest to the place where said business was carried on. There was no evidence as to whether the plaintiffs ever knew that the defendants had ever had any interest in the Spring Brook Mills Company, except what might be inferred from the filing of said married women’s certificates, and the other surrounding circumstances, until after the goods had all been delivered upon which this action was brought. None of the plaintiffs testified at the trial.</p> <p>The plaintiffs contended that there had been no dissolution of the partnership, and also that they had received no notice of the dissolution of the firm consisting of the defendants; and these questions were in issue before the jury when the defendants asked the judge to rule, that, if the plaintiffs never knew that the defendants were the responsible parties in the Spring Brook Mills Company, and the Spring Brook Mills Company did not owe them anything, at the time the defendants ceased to do business, then the plaintiffs were not entitled to actual notice of the dissolution of the firm consisting of the defendants.</p> <p>The judge refused to rule as requested, and instructed the jury upon the question of notice as follows: “ It appears by the evidence in this case that the plaintiffs, with that degree of carelessness and negligence which some tradesmen indulge in, had never ascertained that Eliza C. Booth and Margaret Kidd were really the Spring Brook Mills Company, and did not know it. I instruct you that that makes no difference. If they had been dealing with the Spring Brook Mills Company, consisting of these parties, and the Spring Brook Mills Company, while they were so dealing, paid its bills, the defendants had no right to step out and leave the plaintiffs in the lurch, with irresponsible parties put in their place, without giving notice. And if you find that they had been dealing with the Spring Brook Mills Company while it was made up of the defendants, then they had no right to step out and put other persons in their place without giving actual notice to the persons with whom they had been dealing, and without giving actual notice to the plaintiffs.”</p> <p>The jury returned a verdict for the plaintiffs in the full amount claimed; and the defendants alleged exceptions to the refusal to rule as requested, and to the instructions given.</p>

<p>Bill in equity, filed July 23 1883, to restrain the defendant from doing certain acts and making certain changes on the land of the plaintiff in Clinton, and constructing a carriage road over it, within defined limits, over which the defendant claimed a right of way. The case was referred to a master, whose report was in substance as follows :</p> <p>In 1853, one T. W. Lewis owned'a parcel of land in Clinton, lying easterly of High Street, and abutting thereon. In that year he conveyed that part of the land lying farthest from the street to J ames Patterson, by a deed containing the following: “ Said J. Patterson, his heirs and assigns, shall forever have the right to a passage through to High Street eighteen feet wide, and bounded on the south by the line between said Lewis and A. Knight, but is not to injure or destroy any fruit trees now in a bearing state. Said J. Patterson is to build and keep in repair the fence between him and said Lewis.” At the time of this conveyance, there was no means of access from a public street to the land conveyed except over the passageway granted. In 1857, Patterson, by the purchase of another piece of land, acquired a right to pass to Walnut Street, a public street lying easterly of the lots in question.</p> <p>In 1857, the plaintiff acquired title, through mesne conveyances, of the remaining land of Lewis, subject to the right granted to Patterson.</p> <p>Patterson died in 1865; and in 1879 the executor of his will conveyed to the defendant the lot conveyed by Lewis to Patterson, together with all the land lying easterly of it to Walnut Street.</p> <p>Patterson in the spring of 1857 built a fence extending the whole length of the division line between the lots now owned respectively by the plaintiff and defendant, with a gate not over four feet in width at the southerly end of the fence, next to the adjoining land of A. Knight. This fence, which extended across the whole width of the passageway, was maintained in substantially the same position continuously until July, 1888. At the time of building this fence, and for many’ years previously, as far back as 1849 or 1850, there had been a footpath from the lot now owned by the defendant to High Street, and the gate was placed at the southerly end of the fence built by Patterson, so as to accommodate this footpath. The path entered the plaintiff’s lot near the southerly side of the eighteen-foot passageway, passed south of two apple trees which stood within about three feet of the southerly side of the plaintiff’s lot and near the gate, and then turned towards the northerly side of the eighteen-foot passageway, and so on to High Street. The plaintiff’s lot was originally quite rough and ledgy, with a steep descent towards High Street; and especially at a point about one third of the distance down the lot, and just above the plaintiff’s house, where a ledge cropped out from north to south, there was a descent of about five feet in a distance of twelve feet. The evidence proved to the satisfaction of the master that it would be impossible to construct a practicable way for vehicles over the passageway, without a considerable cut or fill, or both, at this point at least, in the descent.</p> <p>Five apple trees are now standing on the lot which were standing there when the grant of the passageway was made to Patterson, and one which was then standing was cut down by the plaintiff about twelve years ago. Of these six trees all but the two already mentioned as near the gate in the fence were proved to be in bearing condition at the time of the said grant; but in reference to those two the evidence on this point was uncertain. Two of the six trees were situated just above or east of the ledge; one of the two three feet north of the southerly line of the passageway, and the other directly opposite to it, and close to and either just north or just south of the northern line of said passageway. The footpath appeared to have turned northerly after passing the two trees near the gate, to avoid the southerly of .these trees near the ledge, the branches of which spread widely and near the ground ; and, before the northerly tree was cut down by the plaintiff, the branches of the two trees intertwined across the passageway so that it was difficult for a person to pass between them in the footpath with an umbrella spread open, and it would have been impossible to pass through with any vehicle without cutting away the branches of the trees.</p> <p>The house of the plaintiff stands near the westerly end of his lot with its front nearly bounding on the northerly side of the passageway. About twelve years ago the plaintiff built a barn on his lot easterly from and adjoining his house, and extending about to the ledge mentioned; and, in order to get access to his barn, he excavated and graded somewhat the land easterly and southerly of his house, so as to make over the passageway and his other land a practicable road to the barn. Before this, it had been impossible to pass beyond the house easterly with vehicles in the passageway. After making the excavation, the plaintiff built a retaining wall from the easterly side of his barn southerly, along the westerly side of said ledge, and extending a few feet within the eighteen-foot passageway. At the termination of this wall he erected a flight of wooden steps where the footpath reached the ledge for the accommodation of those using the passageway; and at the same time he cut down the apple tree mentioned, which stood near this wall. The plaintiff used the passageway for planting grass and vines, excepting the part occupied by the footpath, from the time of his purchase of the land to August, 1883; and for over twenty years before the last date he maintained clothes-posts within the limits of the passageway, but about two feet northerly of the foot-path, and used them for hanging out clothes to dry.</p> <p>The plaintiff was permitted to prove, and did prove, against the objection of the defendant to the admission of the testimony, that Patterson, soon after the plaintiff bought his lot, told him that he, Patterson, had a footway through the land to High Street, and that the plaintiff might use, occupy, and plant the land as he saw fit, up to the footpath; and that he told several other persons that he had a footpath through the plaintiff’s land to go to the post-office, market, &c.</p> <p>The plaintiff was also permitted to prove, and did prove, against the objection of the defendant, that about July 2, 1883, the defendant went on to the plaintiff’s land with his agents; cut down and took away so much of the fence between the plaintiff’s and defendant’s lands as extended across the eighteen-foot passageway; took away the steps; filled and graded westerly from the ledge for a distance of about twelve feet, with material which .he brought from his own land, to a depth next the ledge of about four feet and nine tenths; cut off a limb from the apple tree next above the ledge which extended across a portion of the passageway, and which was about ten inches in diameter near the trunk of the tree where it was cut off; took up and removed the clothes-posts; and turned the retaining wall round to a right angle with its former position, so as to support the material brought on for the purpose of filling and grading the passageway west of the ledge; and that the effect of this grading was to turn back the surface water, which before had flowed away from the barn, towards and upon the house and barn of the plaintiff. These acts were done by the defendant for the purpose of making the passageway passable for vehicles from his lot to High Street, and were necessary for that purpose.</p> <p>The master found, upon these facts, that the clause in the deed to Patterson, according to its true construction and intent, granted only a footpath within the eighteen-foot limits from his land to High Street; and that, if a passageway for vehicles was granted by said clause in his deed, the evidence of non-user and the accompanying acts and words of Patterson showed an abandonment or surrender of tbe right to use the passageway for that purpose.</p> <p>At the request of the parties, the master also reported the following facts agreed upon by them: High Street in 1853 was, and still is, a business street in Clinton, whereon the principal shops and stores are located. Walnut Street in 1853 was, and still is, occupied by private residences and public buildings, and has convenient and direct connection with High Street. A tenement house was built by the defendant on the lot conveyed by Lewis to Patterson, in 1882 and 1883.</p> <p>The case was then heard, by a single justice of this court, on the report of the master, and a decree was entered that the defendant be perpetually restrained from using the right of way as a drive or carriage way, or from making any changes on the surface thereof for such use. The defendant appealed to the full court.</p>

Tort, for breaking and entering the plaintiff’s close in West-borough. Writ dated December 15, 1885. Answer, a general denial. The case was submitted to the Superior Court, on an agreed statement of facts, in substance as follows: The plaintiff was at the time of the alleged trespass the owner in fee of a certain tract of land in the town of West-borough, the title to which she derived through mesne conveyances from Moses Gr.

<p>Contract upon a policy of insurance, dated March 4, 1884, in the form prescribed by the Pub. Sts. c. 119, § 139, issued to Horace Batcheller and assigned to the plaintiff, against loss by fire, upon a school-house in Sutton. The answer alleged that the plaintiff had no insurable interest. Trial in the Superior Court, before Hammond, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The school-house of School District No. 7 in Sutton was destroyed by fire before September, 1875. On February 28, 1876, a committee duly chosen by the'legal voters of the district executed a contract in writing, under seal, with Horace Batcheller, “in behalf of said district, for building for them a schoolhouse.” Batcheller covenanted “to grade the lot agreed upon by said district for their school-house, according to the direction of the said committee; to put in the foundation, furnish the underpinning and door-steps, and furnish all the material of every kind; and to make, erect, build, and finish, in a good, substantial, and workmanlike manner, upon the site designated by said committee, a school-house for said district,” according to certain plans and specifications. The school district, by its committee, covenanted and agreed to pay Batcheller “ for the same completed ” the sum of $748, the whole amount to be paid “ on the completion and acceptance of the school-house.”</p> <p>At the meeting of the district on February 26, 1876, it was voted, on motion of Horace Batcheller, “ to get the school-house insured as soon as completed; ” and that “ L. Taylor should get the building insured, but not before the day of completion.”</p> <p>At a meeting held on March 7,1876, pursuant to a vote of the meeting, a building contract was made,- and at that meeting it was voted that Batcheller should give no bonds. Up td this time it had been a controverted question where -the school-house should be erected. There was evidence tending to show that Horace Batcheller specially advocated and pressed upon the district a location near his own house at South Sutton Four Corners, so called; that he was the active adviser and advocate to the district of such change in the location of the school-house; that at a legal meeting held on March 16, 1876, it was voted, in accordance with the express desire of-Batcheller, “To change the location of the school-house lot; ” and “ to locate the lot on P. Johnson’s land west of Widow Kelly’s.” This last location was the one which had been advocated by Batcheller, and was the one agreed upon by him and the committee of the district pursuant to this vote as to the location of the school-house, and was the one upon which the school-house was actually built. The house was built according to the contract.</p> <p>After the school-house was built there was difficulty in settling matters with Batcheller in full, he claiming for extra work a sum exceeding $600, which was not paid by the district. But on or before May 16, 1876, he had been paid by the district the whole contract price for building the school-house, which had been finished in 1876, and which was continuously occupied by the district from that time until the existence of the district was terminated by the Legislature’s abolishing school districts in 1882; after which the town of Sutton occupied the building uninterruptedly for the regular terms of school, including the term ending in the latter part of February, 1884.</p> <p>In 1877, on the adjustment of another small matter with the district, which was ruled to be immaterial in this case, Batcheller signed and gave the following receipt for the contract price:</p> <p>• “ South Sutton, May 16, 1876.</p> <p>“ Received of Edwin H. Leaver, treasurer for School District No. 7, $748 in full for building a school-house according to contract and specifications thereto annexed.”</p> <p>On March 5, 1881, at a legal meeting, and under the appropriate article in the warrant, the district voted to raise $25 for insurance and repairs, and the evidence tended to show that this insurance applied to the school-house building in question; that Batcheller was present at the meeting, engaged in the discussion as to "what company the district had better insure in, and subsequently had a conversation with one Morse in regard to calling a new meeting to change the insurance company, which meeting however was not called.</p> <p>At all other meetings of the district at which the building of the school-house, the insurance thereof, or the location thereof was mentioned, Batcheller, as the evidence tended to show, was present, and in them he was an active participant.</p> <p>The evidence further tended to show that at the time Batcheller was advocating a change of location of the school-house to the spot where it was finally built, which was near his house, he was not the owner of the land upon which the house was built, but that it was owned by Pliny F. Johnson ; that Batcheller \ made a proposition in a meeting assembled, and also to the committee who had been empowered by the district to build the school-house, that, if they would change the location and locate the school-house upon Johnson’s land, he would build the same for $748, and would give the district the land.</p> <p>After the vote to locate and the entering upon a contract with the town, namely, on April 26, 1876, Batcheller purchased from Johnson the land upon which the school-house was located, and took a deed thereof to himself.</p> <p>There was evidence tending to show that Batcheller caused a deed of the lot to be prepared by a scrivener, by which he conveyed the land to School District No. 7 contemporaneously with or shortly after the conveyance by Johnson to him. This deed was never delivered, but the scrivener and others testified that Batcheller, then and afterwards, said that he should deliver the deed if the school district continued, but that if the school districts were abolished, and the town became charged with the maintenance of schools, he should not deliver the deed. The school-house was constructed, as buildings ordinarily are, on firm and permanent foundations set in the earth, and not on posts or wooden blocks.</p> <p>There was evidence tending to show that, after the conclusion of the school in February, 1884, Batcheller took actual possession of the school-house, and took the lock from its door and placed a new lock upon it; and that on March 4, 1884, he advertised the house and lot for Sale by auction, to take place on March 22.</p> <p>There was also evidence tending to show that Batcheller moved the school furniture from the building to his own barn at his own house; that the inhabitants of Sutton thereupon, on March 20, 1884, brought a bill in equity in the Supreme Judicial Court seeking to restrain Batcheller from any further interference with the school-house; alleging that the district owned the same, and seeking to compel Batcheller specifically to perform his agreement aforesaid, by conveying the land upon which it stood to the town.</p> <p>On the hearing for a preliminary injunction, held in Boston on April 4, 1884, after due notice given on April 1, an injunction pendente lite was granted against Batcheller, restraining him from interfering with the building, and a mandatory injunction requiring him to restore at once the furniture to the building until the further order of the court. When this decision and decree were announced, Batcheller and his wife, the plaintiff, were both present. On the morning of the next day, April 5, the school-house was burned to the ground, and Batcheller, after returning home from Boston on the evening of the 4th, at night caused the furniture which he was ordered to restore to be replaced in the building, and it also was destroyed. Subsequently, the inhabitants of Sutton, unwilling to rebuild upon that site, and not caring to prosecute any claim to the land after the building was burned, consented to a decree of “ bill dismissed,” to dispose of the case.</p> <p>The plaintiff’s title to the real estate was acquired by a deed from Willard J. Littlefield, on March 21, 1884. Littlefield obtained his title from Horace Batcheller on the same day, and was merely the medium of transfer of title from him to his wife. Mrs. Batcheller on the same day conveyed to her husband, through the said Littlefield, another piece of land which she owned; and she said that was the consideration for the deed from her husband through Littlefield to her.</p> <p>It appeared that the insurance which the district voted to procure, on. motion of Batcheller, in 1875, as above stated, was procured for five years in the Worcester Mutual Insurance Company, was renewed in the same company at the end of that five years by the district, was cancelled by that company in consequence of some litigation in which Batcheller, early in 1884, sought to recover from the school district in one suit, and from the town in another, rent for the school-house.</p> <p>It was offered to be shown by the defendant, that the town insured the school-house building in the Fitchburg Mutual Insurance Company at that time, and had since been paid by the said company insurance on the building. This evidence was ruled out by the judge; and the defendant excepted.</p> <p>The defendant contended that, upon these facts, there was a question for the jury whether or not there was any such agreement between Batcheller and School District No. 7 as made the school-house the personal property of the district while Batcheller held the title to the land, or until the time of the fire.</p> <p>The judge, being of the opinion that, upon all the facts offered in evidence, the jury would not be justified in finding that the school-house was personal property as between Batcheller and the town, ruled that there was an insurable interest in the plaintiff, she being the legal owner of both the land and the schoolhouse át the time of the assignment of the policy to her and at the time of the fire ; and, it being admitted that the value of the pi’operty insured was not less than the amount of the insurance, directed a verdict for the plaintiff for the amount insured, with ■ interest.</p> <p>If the defendant had a right to go to the jury, a new trial was to be granted; otherwise, judgment to be entered on the verdict.</p>

<p>Indictment, in three counts, on the Pub. Sts. c. 112, § 212, to recover, for the use of the widow of Edward B. Allen, a fine, by reason of the loss of his life, from being pushed off the step of a car of the defendant by an employee thereof, and then being run over by the car.</p> <p>The second and third counts, on which the case was tried, were as follows:</p> <p>Second count. “ And the jurors aforesaid, on their oath aforesaid, do further present, that the Brockton Street Railway Company, a corporation duly and legally established in said Commonwealth, and duly authorized and empowered to operate, and to propel, draw, drive, and run cars, by the power of horses attached thereto, over, along, and upon the street railway hereinafter described, was on the tenth day of March, in the year of our Lord one thousand eight hundred and eighty-five, the owner of a certain street railway, leading and extending along the highway known as Main Street, in the city of Brockton, in said county of Plymouth, and was then and there in full occupation, possession, operation, management, control, and use of said street railway, and was then and there a common carrier of passengers over, along, and upon said street railway, and that said corporation, on the said tenth day of March, at Brockton aforesaid, by its servants and agents, they being thereto directed, and being then and there engaged in the service and business of said corporation, did propel, draw, drive, and run, by the power of horses thereto attached, and at a high and extraordinary rate of speed, a certain car for carrying passengers, said car and the front platform and steps thereto attached being then and there heavily laden with passengers of said corporation, over, along, and upon said street railway, and at a place thereon near the junction of Nilsson Street with the highway aforesaid ; and that, by reason of the unfitness and gross negligence and carelessness of said servants and agents, while engaged in said business as aforesaid, said servants and agents, with gross negligence and carelessness, did then and there conduct; propel, drive, draw, and run said car, laden as aforesaid, at a high and extraordinary rate of speed as aforesaid, at the place aforesaid, and that one of said servants and agents, to wit, one Charles E. Fenner, with gross negligence and carelessness, and while engaged in the business of said corporation as aforesaid, and while said car was being propelled, driven, drawn, and run at the high and extraordinary rate of speed aforesaid, at the place aforesaid, did get off from the said front platform and the steps thereto to said car attached, in a grossly negligent, careless, hasty, and improper manner; that one Edward B. Allen, of Brockton aforesaid, was then and there, at the place aforesaid, a passenger on said car, on said street railway, and was then and there, at the place aforesaid, standing and being carried on one of the aforesaid steps of said( car, by said corporation, as such passenger aforesaid, and was not then and there in the employment of said corporation; and that, by reason of the unfitness, gross negligence, and carelessness of said servants and agents while they were engaged in the business of said corporation, as aforesaid, and while they were propelling, drawing, driving, and running said car, by the power aforesaid, at the high and extraordinary rate of speed aforesaid, over, along, and upon the street railway aforesaid, at the place aforesaid, and by reason of the unfitness, gross negligence, and carelessness of the said Charles E. Fenner in getting off from said platform and steps in the manner aforesaid, at the place aforesaid, said Edward B. Allen was thrown down, from the steps aforesaid, upon the track of said street railway, and was then and there struck and run over by the wheels of the car aforesaid, and then and there and thereby divers wounds, bruises, and injuries were inflicted in and upon the head, body, and limbs of him, the said Edward B. Allen, of which said wounds, bruises, and injuries the said Edward B. Allen thereafter, on the twelfth day of March, in the year of our Lord one thousand eight hundred and-eighty-five, died.</p> <p>“ And so the jurors aforesaid, on their oath aforesaid, do say, that by reason of the unfitness and gross negligence and carelessness of the servants and agents of said Brockton Street Railway Company, while engaged in its business as aforesaid, on the tenth day of March aforesaid, at the place aforesaid, the life of the said Edward B. Allen, he, the said Edward B. Allen, being then and there a passenger of said corporation as aforesaid, and not being in its employment, was lost in the manner and form aforesaid : whereby said corporation has become liable to a fine of not more than five thousand dollars, nor less than five hundred dollars, to be recovered by indictment, and to be paid to the executor or administrator of the said Edward B. Allen, for the use of the widow of said Edward B. Allen, and that Carrie I. Allen, of Springfield, in our county of Hampden, has been duly appointed and is administratrix of the estate of the said Edward B. Allen; that said Edward B. Allen died as aforesaid, leaving a widow, the said Carrie I. Allen, and no children. Against the peace of the said Commonwealth and contrary to the form of the statute in such case made and provided.”</p> <p>Third count. “ And the jurors aforesaid, upon their oath aforesaid, do further present, that the Brockton Street Railway Company, a corporation duly and legally established in said Commonwealth, was on the tenth day of March, in the year of our Lord one thousand eight hundred and eighty-five, the owner, proprietor, and operator of a certain street railway situate in Brockton, in said county of Plymouth, extending and leading over, along, and upon a street, there known as and called Main Street, and was then and there a common carrier of passengers over,'along, and upon said street railway, and as such owner, proprietor, and common carrier of passengers, by its servants and agents, on said tenth day of March, at said Brockton, did run, conduct, and drive a certain car over, upon, and along said street railway, in and upon which said car one Edward B. Allen was then and there a passenger, and not being then and there in the employ of said railway company, said servants and agents being then and there engaged in the business of said company, and having then and there, as such servants and agents, the care and management of said car, and being then and there unfit persons to be employed by said company in such service, and, by the unfitness and gross negligence and carelessness of its said servants and agents, the said car, in and upon which the said Edward B. Allen was a passenger as aforesaid, was then and there run, conducted, and driven with great, unreasonable, and improper speed, and in a grossly negligent, careless, and improper manner, and that while the said car was being so conducted, run, and driven over, along, and upon said street railway, in the negligent, careless, and unskilful manner as aforesaid, the said Edward B. Allen, being then and there a passenger on said car as aforesaid, was then and there, by reason of the unfitness of, and by the gross negligence and carelessness of, the saidj servants and agents, pushed and thrown off of the said car down on to and upon the track of the said street railway, and being then and there so, as aforesaid, pushed and thrown off of said car and down on to and upon said track, was then and there struck and run over by the wheels of said car, wheréby divers injuries, bruises, and wounds were then and there inflicted on the head, body, and limbs of him, the said Edward B. Allen, of which said injuries, bruises, and wounds the said Edward B. Allen thereafter, to wit, on the twelfth day of March, in the year of our Lord one thousand eight hundred and eighty-five, died.</p> <p>“ And so the jurors aforesaid, upon their oath aforesaid, do say that, by reason of the unfitness and gross negligence and carelessness of the servants and agents of the said Brockton Street Railway Company, while engaged in its business, as aforesaid, on the tenth day of March aforesaid, at Brockton aforesaid, the life of the said Edward B. Allen, being then and there a passenger of said corporation, as aforesaid, and not being in its employment, was lost in the manner and form aforesaid: whereby said Brockton Street Railway Company has become liable to a fine not exceeding five thousand dollars nor less than five hundred dollars, to be recovered by indictment, and to be paid to the executor or administrator of the said Edward B. Allen, for the use of the widow and children of the said Edward B. Allen, and that Carrie I Allen, of Springfield, in the county of Hampden, has been duly appointed and now is administratrix of the'estate of the said Edward B. Allen; that said Edward B. Allen died as aforesaid, leaving a widow, to wit, the said Carrie I. Allen, but leaving no children. Against the peace of the Commonwealth and contrary to the form of the statute in such case made and provided.”</p> <p>Before the jury were empanelled, the defendant filed the following motion:</p> <p>“ And said defendant moves that the second count in said indictment be quashed, for the reason that the same is insufficient in form, and does not set forth any offence with precision, accuracy, and certainty, for the following reasons : First. There is no averment that the life of said Allen was lost by reason of the unfitness and gross negligence or carelessness of any servant or agent of said corporation.</p> <p>“ And said defendant moves that the third count in said indictment be quashed, for the reason that the same is insufficient in form, and does not set forth any offence with precision, accuracy, and certainty, for the following reasons: First. There is no averment that said Edward B. Allen was a passenger on said car. Second. There is no averment that the life of said Allen was lost by reason of the unfitness and gross negligence or carelessness of any servant or agent of said corporation.</p> <p>“ And now comes the defendant and moves that each count in said indictment be quashed, for the reason that each count is vague and uncertain, and too general in its allegations, in that neither count does with sufficient certainty and accuracy set out and aver how or in what manner or in what respect or particular said servants or agents of said company were unfit or grossly negligent or careless.”</p> <p>Barker, J., overruled the motion; and the defendant excepted.</p> <p>The evidence for the government tended to show that, in the morning of March 10, 1885, Edward B. Allen was a passenger on a car of the defendant corporation, and was standing on one of the steps of the front platform; that one Fenner was driving the car; that one Ashley got on to the car to relieve Fenner, to enable him to get his breakfast; that Ashley took the reins, and Fenner immediately got off, as if in a hurry, on the side where Allen was, while the car was in rapid motion, and Allen was pushed or struck against by Fenner, and fell to the ground, and was run over by the car; and died two days afterwards.</p> <p>The defendant’s evidence tended to show that Fenner remained on the car some time after giving the reins to Ashley, and did not get off until after Allen had fallen to the ground.</p> <p>The defendant requested the judge to instruct the jury as follows: “ If the jury find that, at the time Fenner was attempting to get off the car, he was not engaged in the business of the street railway company, they must, under this indictment, return a verdict of not guilty, even though they should find that the other driver was guilty of gross negligence and carelessness, and unfit for his duty.”</p> <p>The judge refused to instruct the jury as requested; and instructed them as follows : “If the jury find the cause of Allen’s fall was that he was pushed of struck against by Fenner, as Fenner was in the act of leaving the car, and that Fenner's act at the time, and in the way in which you shall find that it was performed, was a grossly negligent and careless act, then it would be sufficient to fix the liability of the defendant, upon this indictment, if at the time Fenner was engaged in the business of the company, and this is a question of fact. If a driver, after relinquishing his charge and control of the horses, the reins, and appliances to his successor, immediately starts to leave the car in pursuance of a common intention between him and the driver to whom he relinquished the same, in order that the latter should then and there assume his turn at the driving, rather than at any other time and place, to enable the first driver then and there to leave his work and the car, the act of the first driver in so leaving the car may be found to be an act performed when he was in the business of the company. But if there was no present intention on the part of Fenner to leave the car immediately upon relinquishing the driving, and he remained upon the car to be carried on to his place of destination, his act in leaving the car subsequently, when that place of destination was reached, would not be an act done while engaged in the business of the company.” The judge also gave other instructions appropriate- to the case.</p> <p>The jury, returned a verdict of guilty; and the defendant alleged exceptions.</p>

Bill in equity, filed December 17, 1883, to restrain tbe defendant from selling by auction, in pursuance of a power contained in a mortgage from tbe plaintiff to tbe defendant, several parcels of land in Pembroke. A preliminary injunction was issued. Tbe answer alleged that tbe condition of the mortgage was broken.

<p>Writ of entry, dated December 18, 1885, by Eliza B. Daggett and Henry W. Daggett, to recover a parcel of land in Tisbury. Plea, nul disseisin. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The demandants are the heirs of Timothy Daggett, who died intestate in August, 1874. Timothy Daggett formerly owned the premises in question; and the tenant claimed title under a deed executed to him by said Timothy. The consideration named in the deed was $800. It was dated and acknowledged on April 23, 1872, and was recorded on July 20, 1874. The tenant, upon the execution of said deed, entered into possession of said premises, and improved the same by building a cottage thereon, and has been in possession since the date of the 'deed until the present time. This entry and possession were with the knowledge and without the objection of Timothy; and the tenant testified that they were with his consent.</p> <p>The demandants contended that the deed had never been delivered except in escrow. Eliza B. Daggett, the only one of the demandants who was called as a witness, testified that on the occasion of the making of the deed she and her mother were present, and also her father, Timothy Daggett, the scrivener John Holmes, and the tenant, who was at that time boarding at the house of Timothy, where Eliza also lived, and who was at the time engaged to be married to Eliza; that the deed was prepared, signed, and acknowledged, and was thereupon given to her; that Timothy said that she was to keep the deed until they were married, or until Silas sold the land, and that whenever he sold the land he was to pay her (Eliza) the three hundred dollars named as the consideration for the deed; that she thereupon took the deed and kept it; that about two years after-wards the tenant asked to see the deed, and she handed it to him; that he then asked to keep it among his own papers; and she said she was afraid he would have it recorded; that he said, “Do you think I w;ould do such a thing as that?” that she then made no objection to his keeping it, and allowed him to take it and put it among his own papers; and that she did not know that he had it recorded until some time after it was done.</p> <p>The tenant denied that such a transaction took place at the time of making the deed, and testified that the deed was at once delivered to him, under a promise by him that he would not have it recorded; that Eliza afterwards obtained the same from his papers without his knowledge; that when he discovered it he got it back again and had it recorded; and that afterwards she again obtained possession of it. '</p> <p>The tenant also put in evidence the record of a judgment in an action of replevin brought by him against said Eliza JB. Daggett. The record showed that the writ was dated June 1,1876, and alleged that a quantity of furniture and “ one deed of a cottage lot ” were detained by said Eliza; that Eliza in her answer claimed certain of the articles (among which the deed was not mentioned) as her property, denied detaining the others, or that they had been in her possession, and concluded as follows: “ And if the plaintiff shall show that they were in her possession, then the same was with the permission and desire of the plaintiff, and he could have taken them away when he pleased.” The record further showed that in 1878 judgment was entered for the plaintiff, by agreement, for certain of the articles, including “ deed of cottage lot.”</p> <p>It further appeared in evidence, that Silas and Eliza were never married to each.other, and that they ceased to be engaged sopn after the death of Timothy; that during the time of their engagement Silas had a wife living, from whom he has since obtained a divorce, and Eliza had a husband living, who is- still living, and from whom she has not been divorced; though she testified that she had consulted legal counsel, and had been advised that she needed no divorce.</p> <p>The tenant testified that he paid nothing for the land, but that the same was conveyed to him by Timothy upon his undertaking to build a cottage on it, so that thereby the value of Timothy’s other land might be enhanced; which undertaking he, Silas, immediately carried out.</p> <p>At the conclusion of all the evidence, the tenant asked the judge to rule as follows: “ 1. Even if the deed was delivered as in escrow to Eliza B. Daggett, if she afterwards voluntarily sur-rendered the deed to the grantee and into his exclusive custody and control, then the delivery was complete, whatever misrepresentation may have been made by him to her with regard to that delivery. 2. The judgment in the suit in replevin was conclusive, as between the parties thereto, as to the title to said deed, and the plaintiff Eliza B. Daggett was estopped thereby from asserting that she could rightfully claim to hold the said deed, as against the tenant, for any purpose whatever.”</p> <p>The judge refused to give any of the rulings requested, and instructed the jury, as requested by the demandants, as follows: “ If the deed of Timothy Daggett was delivered to his daughter, Eliza B. Daggett, to be kept by her until the performance of any condition or conditions by Silas Daggett, the person named as grantee therein, whether the conditions were the payment of money, marriage, or any other act or event, it was not a complete deed, but in escrow only, and could not pass any title to Silas Daggett until the performance of the condition or conditions, or the happening of the event or events. If the jury are satisfied, by a fair preponderance of the evidence, that the deed was so delivered in escrow, and that the Conditions or events, without the performance or happening of which it was not to be delivered, had not been performed or happened at the time the deed came into the possession of Silas Daggett, then, however he may have obtained possession of such deed, unless with the consent of the grantor, Timothy Daggett, it was void and of no effect, no title passed thereby, and a verdict should be found for the demandants.”</p> <p>The judge further instructed the jury as follows: “If you find that Timothy Daggett, at the time it was executed, delivered the deed to Silas Daggett, you may find a verdict for the tenant. If you find that this deed was not delivered, but was put into the hands of Eliza as an escrow, not to be delivered until the happening of one of those events, neither of which has happened, you may find for the demandants.”</p> <p>The jury returned a verdict for the demandants; and the tenant alleged exceptions.</p>

<p>On a petition for the assessment of damages sustained by reason of the laying out of a way by a town over the petitioner’s land, the respondent offered to show that the premises in question were, from fifteen to nineteen years before 1886, dedicated, at common law, by the owner thereof to the public, as a public square or park ; that such dedication was then accepted by the public, but not under any statute or by vote of the town ; and that public use thereof for all purposes of a public park had continued since then to the present time. Held, that the evidence was admissible.</p> <p>If land is taken to widen a public street, under the Pub. Sts. c. 49, the benefit which may be set off, under § 16, against the damages sustained by a person whose land is taken in part, is not prevented from being special by the fact that the lands on the other side of the street, none of which are taken, are benefited in like manner.</p>

<p>In an action by a child against a corporation for personal injuries sustained by the plaintiff from falling down a precipitous place in a vacant.lot where he was playing, the lot being in the rear of the premises where he lived, and separated therefrom by a picket fence with a gate, the only evidence tending to connect the defendant with the lot was that the fence and gate were built by the defendant’s workmen about five years previously, and that the workmen had a key to the gate. There was no evidence to show that the defendant owned, or occupied, or had the care of the lot; or that it had any right to place a fence along the brow of the precipice ; or that, at the time of the accident, it used a road leading through the gate, or left the gate open on the day of the accident; or that it ever, in any way, induced or invited the plaintiff or other children to come upon the vacant ground to play ; or that it ever did anything more than merely to suffer and permit the use of the lot by children. Held, that the action could not be maintained.</p>

<p>In an action against a corporation for personal injuries, the plaintiffs evidence tended to show that the defendant contracted with another corporation to take out a condenser and put in a new one, and for that purpose sent to the latter’s place of business one A. as its agent, with authority to employ all necessary labor and materials to do the work; that A. employed the plaintiff and others to assist him in the work, and asked the plaintiff if he had any blocking, to which the plaintiff replied in the affirmative, and A. told him to get it, which direction the plaintiff repeated to another, who procured three blocks and a piece of joist for a cross bar; that, under A.’s direction, one block was placed on one side of a hole in the floor of a room, and the other two blocks were placed in a similar position on the opposite side of the hole, one on top of the other, the cross bar was placed across the hole upon the blocking, a chain cable was attached to the cross bar by a strap, and hung down through the hole, and the whole arrangement was used as a hoisting apparatus; that none of the blocking was fastened; and that, while so used for hoisting, the blocking slipped and the cross bar came down the hole, and injured the plaintiff. The plaintiff also offered evidence that, with the articles actually used in constructing the hoisting arrangement, and no more, it could not be made safe for the work to be done. There was no evidence that anything broke, or that the materials were defective. Held, that it could not be ruled, as matter of law, that it was the duty of the defendant to furnish the materials. Held, also, that if it was the duty of the defendant to furnish materials, and the accident was caused by an error of judgment on the part of A. in not fastening the blocks together, the plaintiff could not recover, in the absence of evidence that means of fastening could not readily have been had.</p>

<p>Tort, by tbe administrator of tbe estate of Frederick Bar-stow, to recover, for tbe benefit of tbe next of bin, for tbe death of said Barstow, wbieb occurred on May 14, 1885. Trial in tbe Superior Court, before Thompson, J., wbo, at tbe defendant’s request, ruled that tbe action could not be maintained; directed a verdict for tbe defendant; and reported tbe case for tbe determination of this court. If tbe ruling was wrong, tbe verdict was to be set aside; otherwise, judgment to be entered thereon. Tbe facts appear in tbe opinion.</p>

<p>A deed of land to A., after the description and before the habendum, which conveyed a fee, contained the following clause : “ And said grantors agree that no building shall be erected on said lot next east of said granted premises nearer to the west line of said lot than four feet, being the east line of the premises hereby conveyed.” The grantors owned the adjoining land referred to, and subsequently conveyed it to B. Held, that the word “ agree ” in the clause quoted must be read as meaning “grant,” and attached an easement in fee to A.’s land; and that the fact that the grantors did not mention the incumbrance in their subsequent deed to B. was immaterial.</p> <p>If B. buys land upon which his grantor has previously erected a structure which violates an easement created by a prior deed of adjoining land from the same grantor to A., of which easement B.’s deed gives him no notice, A. cannot maintain an action against B. for continuing the structure before requesting its removal.</p>

<p>If a person is induced by the fraudulent representations of the promoter of a corporation to subscribe for shares of stock in the corporation, and pays his subscription to the person holding the office of treasurer, he cannot, by rescinding the contract, maintain an action for money had and received against the other shareholders, even if the incorporation is invalid, and the shareholders are partners.</p>

<p>In a suit in equity an appeal lies to the full court from the refusal of a single justice to order an issue to he framed for a jury.</p> <p>On a bill in equity to set aside a compromise made by the defendant with his creditors, on the ground that the plaintiff’s assent thereto was obtained by fraudulent misrepresentations, that the defendant concealed some of his property, and that he unlawfully preferred some of his creditors, who were parties to.the compromise, the defendant is entitled to have issues framed for a jury.</p>

<p>Petition for a writ of mandamus, hied January 18, 1886, ' alleging the following facts:</p> <p>By the St. of 1875, c. 185,* the city of Boston was authorized, upon the acceptance of said act by a majority of the legal voters of said city, to appoint three park commissioners, who should constitute a board of park commissioners, and who should'have power to locate within the limits of the city of Boston one or more public parks; and for that purpose, from time to time, to take in fee, by purchase or otherwise, any and all such lands as said board might deem advisable therefor, and to “ lay out and improve ” any such park or parks. This act was duly accepted by a majority of the legal voters of said city, and three park commissioners were duly appointed thereunder.</p> <p>The board of park commissioners, claiming to act under the authority conferred upon them by the St. of 1875, e. 185, on December 27, 1879, passed an act or order locating and laying out in the said city of Boston a public park, known as the Back Bay park; and thereafter, on the same day, passed an order, which, after reciting that, pursuant to an act of the board, a public park was located and laid out in the city of Boston at an estimated expense of $465,226.10, and that certain estates named in a schedule referred to had been benefited by the location or laying out of said park, and due notice had been given of the intention of the board to assess betterments thereon, proceeded as follows : “Voted, that the estates named in the schedule be, and they hereby are, respectively charged with the sums therein severally “bet against them, such sums so assessed not exceeding one half the amount of the adjudged benefit to the estates by the said location and laying out.”</p> <p>The petitioners furnished about seventy-five per cent of the lands taken for said park, for which they were paid by the city of Boston the nominal price of ten cents per square foot.</p> <p>The petitioners are also owners of parcels of land, named in said schedule, upon which betterments were assessed, and, except one, have paid or settled for such betterments.</p> <p>Said park consists of about one hundred and six acres, and is located in said city of Boston, within the area bounded by the Charles River, West Chester Park, Huntington Avenue, Long-wood Avenue, and Brookline Avenue, with entrances from Beacon Street, from West. Chester Park, from Boylston Street, from Westland Avenue, from Huntington Avenue, from Long-wood Avenue, and from Brookline Avenue.</p> <p>The board of park commissioners have adopted a plan for the construction and improvement of said park, which, in general, provides for graded and macadamized driveways over said six entrances, which are to be ornamented and broken up with waterways, and with enclosures for grass, flowers, and shrubs, and the whole park is to be surrounded by broad carriageways and footways, with a bridge over the Muddy River entrance; and the interior is to be about one half of water and one half of level areas, to be suitably filled, levelled, and seeded, while the interior slopes are to be graded, seeded, and set out with trees, shrubs, and flowers; and, in addition, there is to be a roadway over the centre of the park, with a large bridge arching the waterway.</p> <p>Of these improvements, said drive, carriage, and foot ways have in no manner been graded, and, for about three fourths of the distance, are below .grade, with large amounts of filling yet to be done, with rough and broken surface, with piles of stone scattered about, and with about one half of the whole of said carriageway rendered utterly impassable because covered with material brought from Sudbury River for grading the slopes, piled up to a height of from four to ten feet. The entrance of Muddy River to the park has not been filled or bridged, and on a large portion of said drive, carriage, and foot ways, by which alone access is to be had to the land of the petitioners, substantially nothing has been done for the past three years.</p> <p>Of the slopes on the interior of said park, only about one fourth have been completed, but upon the greater portion no work has been done. Of the level areas of land within the park, only about six or eight acres have been levelled and graded, and on the forty or fifty acres remaining very little has been done. Of the dredging for waterways within the park, about one half has been done. Of the filling required for the roadway dividing the park, about one third has been done.</p> <p>The lands of the petitioners have been greatly reduced in area by reason of the large number of acres taken for said park, and, in consequence thereof, their remaining lands are to a large extent bordering on said park and its. approaches, and are dependent upon the completion of said park for access, sale, and utilization; and more especially are they so dependent, for the reason that buildings for dwellings and other purposes are to be erected around said park and entrances, to which access can alone be had by the use of said carriage and road ways.</p> <p>Up to the present time, taken as a whole, the location and laying out of said park have been an injury rather than a benefit to the lands of the petitioners, although they have paid to the city of Boston, for betterments and increased taxes assessed on account of said park, very large sums of money.</p> <p>The city council of the city of Boston for the year 1885 appropriated for said park only the sum of $45,000, and, with the present progress in the construction of said park, it will take from ten to twelve years to complete the same.</p> <p>To complete the park according to the design adopted by the park commissioners will cost, in addition to what has already been expended, about $500,000, not including the proposed macadamizing of the roadways. There has been expended up to December 1, 1884, in the purchase of land for the park, $459,360.42, and for construction, $1,019,652.63. It is contended by the park commissioners, in their last annual report, that the city has received up to December 31, 1884, from the petitioners and other tax-payers, from increased taxes and betterments by reason of the locating and laying out of said park, the sum of $1,508,736.92. The appropriation for each year has been as follows : 1877-78, $450,000 ; 1879, $120,000 ; 1880, $214,000; 1881, $202,000; 1882, $200,000; 1883, $100,000; 1884, $150,000; 1885, $45,000.</p> <p>The petition further alleged, that, the park commissioners, having with due authority located and laid out said park over large areas of mud flats and marshes, and having adopted a plan for the construction and improvement of the same, and the petitioners having paid large sums of money for betterments and increased taxes because of the alleged benefits to their lands by reason of the locating and laying out of said park, there was an obligation and duty on the part of the said mayor and city council at once to appropriate the money necessary properly to construct, improve, and complete the same; that said mayor and city council had delayed unreasonably to make appropriation for the construction, improvement, and completion of said park, and had refused and neglected to make sufficient appropriation therefor, to the great loss, detriment, and injury of the petitioners ; and “ that the debt limit, as provided by law, of the city of Boston, will in all probability be reached the present year, when your petitioners fear that the mayor and city .council will then claim that they have no power or means to complete said park.”</p> <p>The prayer of the petition was, that a writ of mandamus issue, directed to the mayor and city council of the city of- Boston, commanding them at once to appropriate sufficient money for the completion of the public park on the Back Bay in the city of Boston, located and laid out by the said board of park commissioners on December 27, 1879, according to the plan or plans which they have adopted for the construction, improvement, and completion of said park.</p> <p>The respondents filed a demurrer to the petition, assigning the following causes of demurrer: “1. That the petition does not state any cause or ground for the issuing of a writ of mandamus -as prayed for. 2. That the petition does not show any failure on the part of the respondents to perform any part of their official or municipal duties. 8. That this court will not and should not assume to control the respondents in the exercise of the discretion by law imposed upon and vested in them in regard to the appropriation of moneys for municipal purposes.”</p> <p>On September 9, 1886, the petitioners filed a supplemental petition, alleging the following facts:</p> <p>The mayor and city council of the city of Boston, in making the annual appropriations for the current year, omitted to make any appropriations for the construction or completion of said public park on the Back Bay of the city of Boston, or of any public park authorized by the St. of 1875, c. 185, in said city, and only appropriated a sum sufficient to pay the office expenses of said park commissioners, namely, the sum of $10,000 ; that during the current year no work of construction has been done on the public park on said Back Bay, or on any of the public parks in said city, authorized by the St. of 1875, c. 185; and that the condition of the lands of the petitioners, and the work, streets, and park area of the said public park on the Back Bay, remain the same as they were at the time of the filing of said petition.</p> <p>The mayor and city council of the city of Boston made request to the Legislature of this Commonwealth, sitting for the current year, for the passage of a,n act authorizing the city of Boston to borrow money for the construction of its public parks; and said Legislature, in accordance with said request, passed an act to authorize a loan for the construction of public parks in or near the city of Boston, being the. St. of 1886, o. 304, which was approved June 21, 1886, and which provided as follows:</p> <p>u Section 1. For the purpose of defraying the costs and expenses of constructing the parks established by the city of Boston, the city council of said city may, by a vote passed in the manner provided by section 7 of chapter 29 of the Public Statutes, authorize its treasurer to issue, from time to time, to the amount of five hundred thousand dollars each year, and to a total amount not exceeding two million five hundred thousand dollars, negotiable bonds or certificates of indebtedness, payable in not exceeding fifty years from their date and bearing interest at a rate not exceeding four per cent per annum, to be denominated on the face thereof Public Park Construction Loan.</p> <p>“ Section 2. Said treasurer shall sell said bonds and certificates, or any part thereof, from time to time, and retain the proceeds thereof in the treasury of the said city, and pay therefrom the expenses incurred for the purposes aforesaid.</p> <p>“ Section 3. Upon the passage of the said vote the board of park commissioners of said city shall without delay proceed with the construction of said parks, and shall carefully and judiciously expend the amounts aforesaid in such construction.</p> <p>“ Section 4. The debt and loans authorized by this act shall not be included within the limits fixed by section 2 of chapter 178 of the acts of the year 1885.</p> <p>“ Section 5. This act shall take effect upon its passage.” Although said act was approved on June 21, 1886, and the city council of Boston have had several meetings since that time, they have wholly neglected and failed, and unless commanded by this honorable court the petitioners believe will continue to neglect and fail, to authorize the loan as provided in said act, or to appropriate money or authorize the borrowing of any money the current year for the construction of the public park on said Back Bay, or any of the public parks of said city.</p> <p>The respondents filed a demurrer to the supplemental petition assigning the same causes of demurrer as are contained in the demurrer to the original petition.</p> <p>The case was reserved, on the pleadings, by W. Allen, J., for the consideration of the full court.</p>

Tort for personal injuries. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows: It appeared that the defendants, who were dealers in furniture and upholstery goods, were, at the time of the injury complained of, tenants in possession of a store, No. 24 Bromfield Street, in the city of Boston, of which and of a basement underneath the same they had sole control; that in front of the store, in the sidewalk, was an…

<p>Complaint to the Municipal Court of the city of Boston, alleging that the defendant,- on September 15, 1886, at Boston, “ had in his possession twenty lobsters, which said lobsters were each then and there less than ten and one half inches in length, measuring from one extreme of the body thereof extended to the other extreme of said body, exclusive of the claws and feelers of said lobster.”</p> <p>In the Superior Court, on appeal, before the jury were empanelled, the defendant moved to quash the complaint, for the following reason:</p> <p>“ Because no offence is therein described with reasonable or substantial certainty, and because the provisions of the statute upon which said complaint is founded are utterly repugnant to each other, and void, and no complaint can be maintained thereon.”</p>

<p>A complaint, alleging that the defendant, at a time and place named, sold intoxicating liquors to be drunk on his premises, he “ not having then and there any license, authority, or appointment” to make such sale of said liquors, “to be drunk on the said premises as aforesaid,” is sufficient, although, at the time of the sale, the defendant holds a license of the fourth class, under the Pub. Sts. c. 100, to sell intoxicating liquors not to be drunk on the premises.</p> <p>At the trial of a complaint for an unlawful sale of intoxicating liquors “ to a man whose name is unknown to said complainant,” it is not necessary to prove that the person to whom the alleged sale was made was, in fact, so unknown.</p> <p>At the trial of a complaint alleging an unlawful sale of intoxicating liquors “ to be drunk on the premises ” of the defendant, and that “ said intoxicating liquors were thereupon then and there so drunk on said premises,” it is not necessary to prove that the liquors alleged to have been so sold were, in fact, drunk upon the defendant’s premises; and such allegation may be rejected as surplusage.</p> <p>At the trial of a complaint for an unlawful sale of intoxicating liquors 'to be drunk on the defendant’s premises, a police officer testified that he entered the place of business of the defendant, who had a license to sell intoxicating liquors not to be drunk on the premises, and saw the defendant standing behind the counter, and a person standing in front of the counter, who held a glass of ale in his hands, which he had raised to his lips, and which he returned to and placed upon the counter without drinking any of the contents of the glass; and that the officer saw no money paid. The defendant asked, the judge to rule that, upon these facts, the government had not sustained the complaint; but the judge refused so to rule. Held, that the defendant had no ground of exception.</p>

<p>At the trial of an indictment for an assault and battery, if the defendant introduces evidence that he was not the aggressive party, but acted in self-defence, and was severely beaten by the other party, and was confined to his bed for weeks, he may also show that, during his confinement, he complained of pain and suffering in limbs and body.; and the fact that he made such complaints may be proved by the testimony of his wife.</p>

<p>Indictment on the Pub. Sts. c. 207, § 4, alleging that the defendant, on April 21, 187.1, at Manchester, in the State of New Hampshire, was lawfully married to one Celeste Scruton; and also that the defendant, on June 80, 1886, at Braintree, in this Commonwealth, unlawfully married one Anastatia Ring.</p> <p>At the trial in the Superior Court, before Blodgett, J., the government called the first wife as a witness, and she testified, on cross-examination, that her name, at the time of her marriage with the defendant, was Celestia Scruton, and not Celeste. The witness pronounced “ Celeste ” in two syllables, with the accent on the last. There was no other evidence as to the pronunciation and sound of “ Celeste.” After the evidence in the case was closed, the defendant asked the judge to rule that there was a variance between the name Celeste, as alleged, and the evidence; but the judge refused so to rule, and submitted the question to the' jury, instructing them that, if they found that the names “Celestia” and “Celeste” were usually and ordinarily pronounced alike, there would be no variance.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Bill in equity, by two of tbe executors of tbe will of Willis Phelps, against the third executor and other persons having an-interest under said will, asking the instructions of the court as to the construction of the will. The case was heard by W. Allen, J., on the bill and answers, and reserved for the consideration of the full court, and was as follows:</p> <p>Willis Phelps died on November 25, 1883, leaving a will, dated October 27, 1881, which has been duly admitted to probate, and contains the following clauses:</p> <p>“ I give and dispose of my property as follows, viz.:</p> <p>“To Willis Phelps, son of John Wesley Phelps, three thousand dollars, to be paid to him when he shall arrive at the age of twenty-two years, provided the executors of this will, or a majority of them, shall think him at that age capable of managing the same prudently, and with economy; if not, he is to receive the income of the same annually, after he shall be twenty-two years of age.</p> <p>“To Henry Willis Phelps, Jr., my grandson, I give three thousand dollars, or the income of the same, on same terms as above named for Willis, my grandson.</p> <p>“ To Mariah Bartlett Phelps, three thousand dollars.</p> <p>“To Mary Isabella Phelps, to Lucy Phelps, to Annie Warner Phelps, all children of my son Henry Willis Phelps, I give two thousand dollars each, to be paid to them when they shall arrive at the age of twenty-five years (25), or if any of them should be married before they arrive at that age they are to receive the same when married.</p> <p>“ Provided, my grandsons Henry Willis Phelps, Jr., or Willis Phelps (one or both) shall wish to have a college education, they shall receive six hundred dollars each, annually, for their support, to be paid by my executors at such times as they shall think advisable, as long as they shall remain in college, not exceeding four years each.</p> <p>“ To Mariah Smullen and Mary Mack (who have been in the family many years), one hundred dollars each.</p> <p>“ After deducting the above donations, gifts, and provisions, one half of the income of the remainder of my property (both real and personal) I give to my son Henry Willis Phelps, for the support of himself and family, — at his decease to be disposed of to his legal heirs as he shall desire or direct (by will or otherways).</p> <p>“ The income of the other half of my estate, both real and personal, after deducting, as provided above, is to be given to my son John Wesley Phelps, for the support of himself and son Willis Phelps, 2d. (The support of the son shall be as the father shall elect.) One half of this half of my estate is to be disposed of at the decease of my son John Wesley, to his heirs, as he shall direct, provided no part of the same shall be given to her who is or has been known as Fanny Their.</p> <p>“ The other half of the same, which my son, John W., is to receive the income from, shall go to my grandson, Willis Phelps, 2d, provided the said executors, or a majority of them, at the decease of my son, John W., shall judge said grandson to be a person of good habits and capable of managing the pi-operty with skill and prudently; if not, it is to go to my legal heirs.</p> <p>“Authority is given to my executors to sell and.dispose of any and all of my real estate in the State of Massachusetts, and to invest the proceeds.</p> <p>“All debts due me from either of my sons at my decease', which were contracted previous to January 1st, eighteen hundred and eighty-one, shall be cancelled (1881), provided they shall cancel all debts from them against my estate previous to that date.</p> <p>“I hereby appoint my son Henry W. Phelps, George W. Phelps, and Charles Marsh of this city, as executors of this will, without bonds.”</p> <p>Two years have elapsed since the plaintiffs gave bond for the performance of their duties as executors, and due notice was given of the appointment of the plaintiffs and the defendant Henry W. Phelps as executors of the will, and all claims against said estate have been paid, and there is remaining a large amount of personal and real estate, situated in this State, to which the provisions of the will are applicable.</p> <p>The bill set forth the contentions of the different defendants,' which sufficiently appear in the opinion, except one contention of John W. Phelps, which was that his interest could not be attached on trustee process. The plaintiffs asked for instructions on the following points:</p> <p>Í. The relation of the executors to the real estate of the testator, whether they are vested with the legal title in fee, and, if so vested, then subject to what trusts as to Henry Willis Phelps, John Wesley Phelps, Willis Phelps, 2d, and the family and heirs of Henry Willis Phelps, and the heirs of John Wesley Phelps.</p> <p>2. As to the personal estate of the testator, whether they are to hold the same upon trust, and, if so, for what length of time and subject to what trusts as to the persons last above named, or are to pay the same into the hands of the residuary legatees.</p> <p>3. As to the legacies to Willis Phelps, 2d, Henry Willis Phelps, Jr., Mary Isabella Phelps, and Annie Warner Phelps, whether the fund to meet said legacies shall be invested and the current earnings thereof paid to the residuary legatees until the principal of the said legacies become payable, or whether the accumulated earnings of a fund invested to meet said legacies shall be reserved and paid to the legatees, together with the principal of said legacies, at the time when the legacies themselves become payable, and whether the investments to meet said legacies shall be made separately, so that éach legacy shall bear, separate and apart from the others, the risk of loss thereon, or whether the legacies ought to be invested together as a general fund, out of which the legacies shall be paid as they respectively become due.</p>

<p>If a husband, before the expiration of three years after his wife has deserted him without cause, files a libel against her for a divorce for adultery committed by her after leaving him, he cannot, after the expiration of the three years, maintain a libel against her under the Pub. Sts. c. 146, § 1, for a divorce on the ground of desertion.</p>

Tort. The declaration was as follows: “ And the plaintiff says that the defendant caused to be published in a newspaper called the ‘ Fall River Daily Herald,’ printed and published in Fall River in said county, a false and malicious libel concerning the plaintiff, a copy whereof is hereto annexed and is as follows: ‘ Thomas Wilson (meaning the plaintiff) stole a shawl from a wagon on Spring Street yesterday afternoon.

<p>By the charter of a city, the administration of all the fiscal, prudential, and municipal affairs of the city was vested in the city council. By the city ordinances, a superintendent of highways was to he chosen, who should be removable at the pleasure of the city council, and who should act under the direction of the committee on streets, ways, and sewers, which was a committee of the city council; and special provisions showed his subordination to the city council and to its committee. A stone-crusher, owned by the city, and operated, under the direction of its superintendent of streets, for the purpose of crushing rocks and stones to be used in keeping the streets of the city in proper condition for travel, upon land belonging to the city, which land for a period of nearly three months was used exclusively in the preparation of materials for repairing the streets and ways of the city, damaged the adjoining land by depositing dust thereon. Held, that the owner of such land could maintain an action therefor against the city.</p>

<p>Under the Pub. Sts. c. 50, § 4, where a common sewer is intended not only to serve as an outlet or means of discharge for other common sewers, but also to benefit the lands abutting upon it, no part of the cost need be assessed upon the owners of lands along the line of the tributary sewers.</p>

<p>Certiorari does not lie to quash the proceedings of the municipal authorities of a city in appointing a police officer, in alleged violation of the rules established by the St. of 1884, c. 320, for the improvement of the civil service of the Commonwealth.</p>

Tort, to recover the penalty provided by the Pub. Sts. c. 100, § 25, for selling intoxicating liquors to William Tate, the husband of the plaintiff.

<p>The trade-marks “A. N. Hoxie’s Mineral Soap,” and “A. N. Hoxie’s Pumice Soap,” are assignable; and if the assignee uses them to denote soaps made according to the formulas of A. N. Hoxie, and not to denote that they are made by said Hoxie, he may maintain a bill in equity to restrain an infringement of the trade-marks.</p> <p>A manufacturer, who had acquired trade-marks in two kinds of soap manufactured by him, entered into a partnership with another, under articles in writing by 'which he contributed the good-will of the business he was carrying on, with the tools, implements, and fixtures. On the dissolution of the partnership, he conveyed to his former partner, by a bill of sale, “ the following goods and chattels, namely: All my right, title, and interest in and to all and singular the partnership property belonging to the firm, meaning hereby to sell and convey all my interest in the entire assets of the firm.” Held, that the trade-marks became, by the articles of copartnership, a part of the property of the firm; and that they passed by the bill of sale. Held, also, on a bill in equity by the purchaser under the bill of sale to restrain the seller from making and selling said two kinds of soap, from using wrappers bearing the trade-marks, and from doing matters tending to injure and impair the good-will of the business, that the plaintiff was entitled to an injunction, except as to the making and selling the soap.</p>

<p>Bill in equity, filed April 19, 1886, against Thomas Belger and Mary E. Belger, to restrain the defendants from erecting a building on land owned by the second-named defendant in the plaintiff city, to be used as a blacksmith shop, and to compel the removal and abatement of the same as a nuisance. Hearing before Devens, J., who ordered a decree to be entered for the plaintiff, in accordance with the prayer of the bill; and reported the case for the consideration of the full court. The facts material to the point decided appear in the opinion.</p>