Volume 144 — Massachusetts Reports

<p>Tort, for being expelled from one of the defendant’s cars. Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The plaintiff introduced in evidence a contract between the Pennsylvania Railroad Company of the first part, and the defendant corporation of the second part, the material portions of which are as follows:</p> <p>“First. The party of- the second part, in consideration of the covenants and agreements hereinafter mentioned on the part of the first party, to be by them kept and performed, hereby agrees with the party of the first part that they will furnish drawing-room cars and sleeping cars to be used by said first party for the transportation of passengers, sufficient in the judgment of the president of said first party to meet the requirements of travel on and over their line of railroad, and on and over all lines of railroad which they now control or may hereafter control by ownership, lease, or otherwise.</p> <p>“Second. The said party of the second part hereby agrees that they will keep the carpets, upholstery, and bedding of each of the said cars in good order and repair, and renew and improve the same when necessary, at their own expense, excepting repairs and renewals made necessary by accident or casualty happening to said cars while running upon the road of said first parties. It being understood that the said first parties shall be paid all damages to said cars of every kind occasioned by accb dent or casualty.</p> <p>“ Third. The said party of the second part hereby agrees, at their own cost and expense, to furnish one or more employees, as may be needful upon each' of said cars, whose business it shall be to collect fare for the accommodations furnished in said cars, and generally to wait upon passengers therein, and provide for their comfort.”</p> <p>“ Fifth. It is hereby mutually agreed that the said employees of the second party, named in article third of this agreement, shall be governed by, and subject to, the rules and regulations of said first party, which are or may be adopted from time to time for the government of its own employees.....</p> <p>“ Sixth. The said party of the first part, in consideration of the use of the aforesaid cars, hereby agrees to haul the same on the passenger trains on their' own line of road, and on all roads which they now control, or may hereafter control, by ownership, lease, or otherwise, and also on all passenger trains on which they may, by virtue of contracts or running arrangements with other roads, have the right to use such cars and facilities, in such manner as will best accommodate passengers desiring the use of said cars. And, the said party of the first part shall, at their own expense, furnish fuel for the cars, and materials for the lights, and shall wash and cleanse said cars, and shall also keep said cars in good running order and repair, including renewals of worn-out parts, and all things appertaining to said cars necessary to keep them in first-class condition, except such as are provided for in article second of this agreement.”</p> <p>“ Eighth. The said party of the first part further agrees" that the said party of the second part shall be entitled to collect from each and every person occupying said cars such sum for said occupancy as may be usual on competing lines furnishing equal accommodations, and that such rules and regulations shall be mutually agreed upon as will most favor the renting of seats and couches in said cars.”</p> <p>The plaintiff also offered in evidence the answers of George M. Pullman to interrogatories propounded to him by the plaintiff, in which he testified that the ordinary train conductors of the Pennsylvania Railroad Company have full and entire authority over the porters and conductors of the Pullman cars, in regard to the matter of determining who shall ride in the cars, and under what circumstances, and in regard to every other thing, except the detail of keeping the Pullman cars and their furniture in good condition and suitable for the comfortable accommodation of passengers.</p> <p>The Pennsylvania Railroad Company was operating, in 1882, a line of railroad from New York to Baltimore, passing through Philadelphia. The plaintiff testified that, in March, 1882, he purchased of the Pennsylvania Railroad Company, at its office ■ in New York, a first-class ticket, called a return ticket, good for five days, for transportation between New York and Philadelphia and return, sold at a reduction in consideration of the sale for the round trip and the limitation in time. He proceeded to Philadelphia, and thence to Baltimore. On March 18, at eleven o’clock in the evening, he purchased, at the ticket office of the passenger station of the Pennsylvania Railroad Company, in Baltimore, a ticket from Baltimore to Philadelphia. He had then in his possession the return portion of his round-trip ticket purchased in New York, and good from Philadelphia to New York, and it was his intention to proceed directly to New York on a train then nearly due at Baltimore from the south. The same agent who sold the plaintiff the ticket from Baltimore to Philadelphia also had charge of the sale of tickets for the Pullman sleeping cars, and, when the plaintiff purchased his ticket to Philadelphia, he at the same time applied to this agent for a sleeping-berth ticket to New York. The agent refused to sell him the latter, and told him that, in order to get a berth to New York, he would have to buy a ticket to New York; that he could not sell him a sleeping berth to New York on a ticket to Philadelphia. The plaintiff testified that he tried to explain to the ticket seller that he already had a ticket from Philadelphia to New York, but that the agent, being engaged in a dispute with another person, did not attend to him.</p> <p>When the train for New York arrived at the Baltimore station, the plaintiff entered the sleeping car for New York, which was a car owned by the defendant and managed by the Pennsylvania Railroad Company under the contract above set forth, and asked the Pullman conductor for a berth to New York. There were berths in it then unoccupied. The Pullman conductor asked the plaintiff to show him his railroad ticket. The plaintiff thereupon produced his ticket from Baltimore to Philadel- ' pliia, and the return half of his round-trip ticket between New York and Philadelphia. The Pullman conductor thereupon informed the plaintiff that he could not sell him a berth in the New York sleeping car on those split tickets; that he had received orders not to sell any sleeping-car berths except to those holding through passage tickets, intact, to the point to which sleeping accommodations were desired. He offered to sell the plaintiff a berth in the Philadelphia sleeping car, and, when this car reached Philadelphia, there to provide him with other accommodations for sleeping, but this the plaintiff declined. Nothing further took place except discussion until the Pennsylvania, Railroad Company’s train conductor came into the car. The train conductor took up the plaintiff’s railroad ticket from Baltimore to Philadelphia, and, as the plaintiff thinks, punched it, and put it in his pocket. The train conductor was then told by the Pullman conductor that the plaintiff desired sleeping accommodations to New York. The train conductor informed the plaintiff that he could not have sleeping-car accommodations to New York in that car, upon the tickets which he had produced. The plaintiff then offered to pay cash fare between Philadelphia and New York. The train conductor replied to the plaintiff, that, in order to have sleeping-car accommodations in the New York sleeping car, he must either have a through railroad ticket to New York, intact, or pay the regular cash railroad fare from Baltimore, where he took the train, to New York, and refused sleeping-car accommodations in the New York car upon any other terms. The plaintiff did not offer such a ticket, and declined to pay the cash fare. The conductor did not offer to return the ticket from Baltimore to Philadelphia; and it did not appear that the plaintiff demanded its return, or called the conductor’s attention to it. The train conductor went out of the sleeping car and returned several times, and had some conversation with the Pullman conductor, which the plaintiff did not hear.</p> <p>The train conductor several times requested the plaintiff voluntarily to leave the car, and the plaintiff refused to do so. The plaintiff testified that he had made up his mind not to leave the car until he was forced to do so, or some show of force was exhibited. The Pennsylvania Railroad Company’s conductor then laid his hand upon the plaintiff’s shoulder, saying, “ I think I see what you want.” The plaintiff rose to his feet. The Pullman conductor then took hold of the plaintiff’s arm. The plaintiff turned around and then walked to the door of the car, the train conductor in front of him, and the Pullman conductor behind him. The train conductor opened the car. door, still keeping in front of the plaintiff. Upon the platform the plaintiff hesitated, and the Pullman conductor again took hold of the plaintiff’s arm and led him across the platform into the next car, holding his arm all the way from one car into the other car. The train was at this time in motion. Before leaving the Pullman sleeping car, the plaintiff tendered to the Pullman conductor the price of a berth. The plaintiff also testified, upon cross-examination, that, when the Pullman conductor took hold of his arm as he rose, he did the plaintiff no injury; and that he did the plaintiff’s arm no injury when he led him from one car to the other.</p> <p>There was no evidence that the Pullman conductor used any force toward the plaintiff, or touched him, except by taking hold of the plaintiff and leading him in the manner above described.</p> <p>The plaintiff testified as follows: “ At the time I was led from the sleeping car into the next car, it was a dark night, about midnight, and the train was an express, and was a fast-running train, and the wind was blowing. The Pullman conductor led me across the platform; the train conductor went ahead and opened the doors for us. The car into which I was led became very cold before morning, so much so that I took off my overcoat and put it over my legs, which trouble me in cold or storm, having been wounded in my legs at Shiloh. In consequence of this cold, I took a severe cold, was unable to attend to business for a time, and I suffered severe pain. The car into which I was taken was provided with reclining chairs; I think it went through to Hew York, and I paid my fare for the reclining chair to said Pullman conductor. The Pullman conductor said he would give me one of these chairs. I said, 1 If this is the best I can have, I will take it.’ I could not sleep in that car. I think it was as well provided, so far as everything but temperature, as such reclining-chair cars usually are. It was a very good car, better than the ordinary accommodation furnished in the simple ordinary passenger cars of the road. I made no complaint to the porter that the fire was not kept up. I think I asked for a blanket, and got one. I know of no request which I made for accommodation in the way of comfort, such as was adapted, of course, to the kind of car I was in, that was not complied with. I did not request any special fire to be made up, stating that I was cold and required it. I asked for nothing but a blanket.”</p> <p>The rule of the Pennsylvania Railroad Company relating to the sale of berths in the Pullman sleeping cars, signed by the general passenger agent, was put in evidence by the defendant, and was as follows: “ On and after receipt of this notice you will refuse to sell Pullman seat checks or berths to persons not supplied with a through passage ticket, intact, and you must decline to sell to a point beyond, on presentation of tickets reading ‘ between intermediate stations.’ ”</p> <p>This was all the evidence offered by the plaintiff. The defendant asked the judge to rule that, upon the evidence, the plaintiff could not maintain his action. The judge so ruled; and ordered a verdict for the • defendant. If the ruling was correct, judgment was to be entered on the verdict; otherwise, a new trial to be had.</p>

<p>Under the fourteenth article of the Amendments of the Constitution of the United States, a judgment in personam against a person who is not a resident of this Commonwealth, who does not appear in the action, and who is not served personally with process within the Commonwealth, is invalid.</p> <p>A. brought an action in the Superior Court upon a judgment obtained therein against B., in which action personal service of the writ was made upon B., who appeared therein, and set up in his answer that the judgment was erroneous, because there was no sufficient service upon him in the original action, and that, before the judgment was obtained, he had paid in full the debt upon whicli it was founded. The judge ruled that error in the original judgment could not be set up in the action thereon, and, upon exceptions, this ruling was sustained; and upon the other issue presented the judge refused to permit B. to go to the jury. B. afterwards applied to the Superior Court for leave to show that the claim on which the judgment was based had been paid and extinguished before the judgment was rendered; and the court, in its discretion, refused to permit this. Held, that B. had not waived his right to bring a writ of error to reverse the former judgment.</p>

<p>Contract, upon a poor debtor’s recognizance, entered into under the Pub. Sts. o. 162, § 28, by Robert S. Clisby as principal, and by the defendant as surety, and containing the usual conditions.</p> <p>At the trial in the Superior Court, before Brigham, C. J., the following facts appeared:</p> <p>Within thirty days from his arrest, Clisby appeared before Frederick D. Ely, a trial justice, .having first given the notice required bylaw. The hearing was continued from time to time, and on January 10, 1885, it was continued to March 14,1885, at four o’clock p. M.</p> <p>On February 25,1885, Ely tendered to the Governor of Massachusetts his resignation of the office of trial justice, to take effect on March 2, 1885. Upon receipt of said resignation, the Governor asked Ely if there were pending before him, in his office of trial justice, an)7 matters which would require the exercise of his said office therein after March 2, 1885, and offering, if such was the fact, to withhold acceptance of said resignation until such matters were disposed of. Thereupon Ely called upon J. E. Cotter, an attorney at law, who had appeared before Ely, and had acted as counsel for the plaintiff in all the proceedings before Ely, informed him of said resignation, and of the proposal of the Governor in relation to the acceptance of said resignation, and the withholding of such acceptance until Ely could attend to matters pending before him, and said to Cotter, “The only matter you have pending before me is Clisby’s; do you wish to prosecute that further ? If necessary to protect parties, I shall ^sk the Governor to withhold acceptance of my resignation until these matters are disposed of.” Cotter said in reply, “ Don’t do that on account of the Clisby matter.” Ely then said, “ I did not suppose you would care to have me do so, as Clisby is in insolvency, and you would probably gain nothing by a hearing.” Cotter assented to this remark, and afterward, when Ely and Cotter parted, Ely said to Cotter, “ Then I will not let the Clisby matter stand in the way of my resignation.” Cotter said, “ Do not do so.” Cotter, in the course of this interview, said, “ The case of Clisby was not originally my case, and I was acting for Ivilton, the original counsel in the case.” Ely thereupon said, “ I did not know that, and so came to you as the only counsel I had known in the matter,” and Cotter replied, “ That is all right.” Ely’s resignation of his office of trial justice was accepted, took effect on March 2, 1885, and Ely acted thereafter no further in the matter of Clisby’s application to take the poor debtor’s oath.</p> <p>On March 14, Clisby appeared at the time and place to which the case had been continued. Ely not being then a magistrate authorized to act according to law, nor being present, Clisby procured the attendance of A. B. Wentworth, a trial justice, to act in the place of Ely, for the purpose of further continuing said case. At this time, the plaintiff appeared by counsel before Wentworth, and objected to the authority or right of Wentworth to continue or hear the case, but Wentworth, at the request of Clisby, ordered said case to be continued before him to April 11, 1885. On this last date, Clisby appeared at the time and place to which the case had been continued by Wentworth. There was no appearance in behalf of the plaintiff; and Wentworth, on said day, examined Clisby as to his property, and administered to him the oath for the relief of poor debtors, and ordered him to be discharged.</p> <p>On these facts, the defendant requested the judge to rule, as matter of law, that the conduct of the plaintiff, through his attorney, waived all formalities of the debtor’s appearing before Ely; and that the plaintiff was estopped from setting up as a breach the failure of the debtor to appear before Ely. The judge refused to rule as requested, and ruled that the defendant was in default in the performance of the condition of the recognizance, and that the facts stated did not, in legal effect, constitute a waiver by the plaintiff, by which the defendant’s liability was avoided; and ordered judgment for the plaintiff for the penal sum of said recognizance, and assessed damages and awarded execution in favor of the «plaintiff in the sum of $138.17, being the amount of the plaintiff’s judgment against Clisby, with interest.</p> <p>The defendant alleged exceptions.</p>

<p>Tort for personal injuries received by the plaintiff while a passenger on the defendant’s car, in Everett. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff introduced evidence tending to show that she took the car at the station of the Eastern Railroad Company in Everett, for the purpose of going to Malden, her home; that when the street car arrived at the railroad station, there were a number of persons who had come upon the train and intended to take the street car to Malden; that it was an open car, and, when it arrived at the station, every seat was taken.</p> <p>The plaintiff testified that she knew, when she got upon the car, that every seat was taken; that she stood up between two seats which extended across the car, and between the passengers seated on one seat and the back of another seat; that she stood in front of two persons, about half-way between them, within about a foot or eighteen inches of the edge of the car, and about midway between the ends of the car; that she took that position because she did not wish to wait for another car; that after the car had proceeded a certain distance, to Everett Square, it became necessary, in order to go to Malden, for the car to go around a curve; that the car was very much crowded, containing about sixty-seven passengers, some of whom were standing between the seats, in positions similar to that occupied by her, and on other parts of the car, and she remained in this position while the car was going around the curve; that, when the car got about half around the curve, it went so rapidly and with such force that she was thrown out upon the ground and received the injuries complained of; that she had been holding on with her hands to the back of the seat in front of her until the jerk produced by the car going around the curve at so rapid a rate of speed wrenched her hands from the seat which she had been holding on to up to that time; and that the conductor of the car received fare of her while she was so standing, and before her injury.</p> <p>The defendant offered evidence tending to show that, when the crowd came from the railroad station to get upon the car, the conductor, in a loud tone of voice, which the pla,intiff and others must have heard, proclaimed that there was no room in the car except for people to stand up, and that there were no seats. The plaintiff and others testified that they did not hear the conductor so state. The defendant’s evidence also tended to show that, when they arrived at the curve, the car only went around with the necessary rapidity for a car and horses to go around a curve; that, in order to go around a curve of a street railroad, it was necessary for the horses to get a certain start; and that, upon open cars, there was no provision made and no facilities for people to stand up, unless it might be upon the running board, or upon the front and rear platforms. This was an ordinary open street car.</p> <p>Neither the defendant nor its agents or servants made any objection to the position of the plaintiff before her injury.</p> <p>The only opportunity for standing up was between the knees of the passengers sitting, and the back of the seat in front. The evidence was conflicting as to the rate of speed at which the horses went around the curve when the plaintiff was injured, and as to how other passengers were affected thereby. There was also evidence tending to show that the plaintiff, when she stood in the position which she described, did not take hold of a post which extended from the bottom to the top of the car, at the outside edge of the car, within eighteen inches of her, which was held on to by other passengers who were standing on the foot-board, but she simply stood with her hands upon the back of the seat in front of her. There were several witnesses on the part of the plaintiff who corroborated her testimony that the car •went very rapidly around the curve; and several witnesses on the part of the defence who testified that the car went slowly, and that there was no unusual force or shock, and no more than was customary and necessary for the car to go around the curve.</p> <p>The defendant asked the judge to rule that the plaintiff, having assumed the position which she did, was wanting in due care under the circumstances, and there was nothing to go to the jury. The judge declined so to rule, and submitted the case to the jury.</p> <p>The defendant then asked the judge to give the following instructions, among others: “2. If the jury believe the plaintiff took an unsafe position in standing up between the seats in an open car, she cannot recover.....6. The defendant is only bound to carry passengers in the usual manner, and while occupying places provided for them; and, if the plaintiff took a place or position on the car where there was no provision for passengers, the defendant is not liable, if such position contributed to the accident.”</p> <p>The judge declined to give the instructions requested; and instructed the jury, that the plaintiff, in order to recover, must prove that, under all the circumstances of the case, she was in the use of due care.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tort for the conversion of three horses, three carriages, and three harnesses. Answer, a general denial. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows: The plaintiff claimed title under a bill of sale made by William Harrington.

<p>Neither at common law, nor under the Pub. Sts. c. 84, § 6, is a married woman, whose husband is living, under legal obligation to support their children, even if the husband is imprisoned for crime; and her right to acquire a settlement, under the Pub. Sts. c. 83, § 1, cl. 6, 7, by a residence of five years, is not taken away, under § 2, by her receiving money, during the five years, to be used for the board of her pauper child.</p>

<p>If an insolvent debtor mortgages to a person most of the property used in his business, not to secure a preexisting debt, but in consideration of a sum of money then advanced to him, being nearly the value of the property, and the mortgagee acts in good faith, not knowing of the mortgagor’s insolvency, or that the mortgaged property comprises about all of his property, and the mortgagor does not realize his condition, but makes the mortgage to meet immediate wants, expecting to go on with business and to receive collections so as to pay off the mortgage debt within a month, in an action by the assignee of the insolvent debtor to recover the value of the mortgaged property, it cannot be ruled, as matter of law, that the transaction was a fraud; but it is a question for the jury whether it was “in the usual and ordinary course of business of the debtor,” within the Pub. Sts. c. 157, § 98.</p> <p>At the trial of an action by the assignee of an insolvent debtor, to recover the value of property mortgaged by the debtor to the defendant, the plaintiff is not entitled to offer the testimony of witnesses “that the giving of a mortgage, such as the mortgage in question, would not be in the usual and ordinary course of such business.”</p>

Tort, against a constable of the city of Boston, for accepting insufficient sureties on a bond taken by him in the service of á replevin writ. Trial in the Superior Court, before Pitman, J., who reported the case for the determination of this court, in substance as follows: The plaintiff called as a witness the clerk of the Superior Court, who produced the writ, bond, and record of the replevin suit wherein said bond had been taken.

<p>An account due to the firm of A. and B. by C., and an account due to C. by A. after the dissolution of the firm by the death of B., do not constitute a “ mutual and open account current,” within the meaning of the Pub. Sts. c. 197, § 8 ; and all the items of each account, not contracted within six years before the date of the writ in an action upon the account due the firm, by A. as surviving partner, against C., who files his account against A. in set-off, are barred by the statute of limitations.</p>

<p>Two actions OF tort. The declaration in the first case was as follows:</p> <p>“ The plaintiff says that she has been for a long time, and now is, a resident of Wellfleet, in said county of Barnstable; that during said time she has been held in great respect by the inhabitants of said Wellfleet; that on or about March 12, 1886, certain workmen engaged in digging on a certain street or road in said Wellfleet, discovered protruding from a bank of earth on which they were digging at the side of the road something which seemed to be the arm or leg of an infant; that thereupon, upon further digging, the body of a child of about the age of four days was then and there dug out of said bank of earth; that, upon investigation, then and there it appeared that a piece of folded cotton cloth had been tied around the neck of said infant so tightly as to strangle it, and that its head had been beaten in by some kind of an instrument; that at the time the defendant made the statements hereinafter set forth, the above facts relative to said infant were well known in said Wellfleet by all its inhabitants; and that it then was the common belief of the town authorities and of the said inhabitants that said infant had been brutally murdered by some person or persons, and had been surreptitiously buried in said bank of earth for the purpose of concealing the commission of the crime.</p> <p>“ The plaintiff further says, that neither before nor after the discovery of said infant did the defendant have any reasonable ground for believing, or expressing an opinion, that the plaintiff was the mother of said infant, or was in any way connected with the murder or burial of said infant, and as a fact the defendant did not have such an opinion or belief; notwithstanding all which the defendant, with the intent to cause it to be believed that the plaintiff was the mother of said infant, and was a participant in its murder and burial, and also with the intent to bring the plaintiff into hatred, contempt, and disgrace, and also with the intent to incite and instigate criminal proceedings against her, and thereby to cause her mental and physical suffering and great pecuniary expense, and with the intent to injure her mentally and physically, did, on divers times, in presence of divers persons, and in divers places, before the bringing of this writ, publicly, falsely, and maliciously accuse the plaintiff of being the mother of said infant, and of being a participant in its murder and burial, by words spoken of and concerning the plaintiff substantially as follows: ‘ That child is Aunt" Jerusha’s, and Eliza Higgins took it away.’ ‘ It is my opinion that Aunt Jerusha had that child, and Eliza Higgins took it away.’ 1 In my opinion that child belonged to Aunt Jerusha, and Eliza Higgins was her . aid.’ ‘ In my opinion Jerusha Young had that baby, and Eliza Higgins buried it.’</p> <p>“ The plaintiff further says, that, in consequence of the vile and slanderous statements of the defendant as aforesaid, she became an object of suspicion to the authorities of said Well fleet and to the inhabitants thereof, causing her great mental and bodily suffering and serious damage to her reputation. Wherefore she claims damages as alleged in her writ.”</p> <p>The declaration in the second case was the same as that in the first, with the additional allegation that the plaintiff “ is the lawful wife of Solomon R. Higgins, likewise a resident of said Well-fleet, and is the mother of a family of children; ” • and that the defendant also spoke the following words of and concerning the plaintiff: “My boy told me that Liza Higgins had that young one in her cellar two or three days, and he says that Bart Oliver told him so.”</p> <p>The defendant demurred to the declaration in each case, assigning in the first case the following grounds of demurrer: “1. It appears from said declaration that the words alleged to have been spoken by the defendant were spoken of one called Aunt Jerusha and one Jerusha Young, and not of Jerusha A. Young, and there is no allegation in the declaration that the plaintiff was ever known or called by the name Aunt Jerusha, or by the name of Jerusha Young, or both. 2. The words alleged to have been spoken by the defendant do not by their natural import, or as connected with the state of facts alleged as existing at the time of such speaking, charge the commission of any crime or misdemeanor whatever, and the plaintiff’s declaration does not so allege. 3. The plaintiff’s declaration does not allege that the defendant, at the time of the alleged speaking of slanderous words, or at any time, believed, thought, or suspected that the infant referred to in said declaration had been murdered. 4. There is no allegation in said declaration that said infant had been murdered.”</p> <p>The demurrer to the declaration in the second case differed from that in the first casé only in the first ground assigned, which was as follows: “ 1. .It appears from said declaration that the words alleged to have been spoken by the defendant were spoken of one Eliza Higgins and one Liza Higgins, and not of Eliza H. Higgins, and there is no allegation in the declaration that the plaintiff was ever known or called by the name of Eliza Higgins or Liza Higgins, or both.”</p> <p>The Superior Court sustained the demurrers, and ordered judgments for the defendant; and the plaintiffs appealed to this court.</p>

<p>Contract, by Lawrence Kyte, for his own benefit, and for the benefit of Charles Q. Tirrell as mortgagee. The declaration contained two counts. The first count was on a policy of insurance against loss by fire, dated January 24,1881, for $2000, issued by the defendant to the plaintiff, and covering property described as “ his two and one half story frame dwelling-house ” in Natick, for the term of three years. The second count was on a similar policy, dated April 2, 1881, for $400, issued by the defendant to the plaintiff, and covering property described as “ his new frame barn and shed attached thereto.” Each policy was in the form prescribed by the Pub. Sts. c. 119, § 139.</p> <p>At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the plaintiff in the sum of $2193.08; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Bill in equity, filed May 21, 1884, by a devisee of real estate, to set aside a mortgage upon it given by his devisor, Azubah Brigham, to the defendants, to secure payment of the sum of $3356.64, in one year, with interest, this amount being represented by two promissory notes; and to remove a cloud upon the title to the property.</p> <p>The bill alleged that, at the time of giving the mortgage deed, Azubah Brigham was very aged, sick, and infirm, and that her mental powers were so weakened and impaired by age and sickness that she was wholly incapable of transacting the -business of executing and delivering a deed of her property, and was of unsound mind. The bill also alleged that the deed was procured by fraud and undue influence on the part of the defendants.</p> <p>The answer admitted that, at the time of the execution of the mortgage, the mortgagor was aged, but denied that her mental powers were weak or that she was incapable of transacting the business alleged in the bill, or was of unsound mind. The answer also denied that there was any fraud or undue influence on the part of the defendants.</p> <p>Three issues of fact were framed for the jury, as follows: “1. Was Azubah Brigham of sufficient mental capacity at the time the mortgage deed referred to in the bill was executed to transact the business of executing said deed ? 2. Was said deed procured by the fraud or undue influence of the defendants, or either of them? 3. What was the amount of the debt justly due from said Azubah Brigham to the defendants at the time said mortgage deed was executed, and which the parties designed to secure by the mortgage ? ”</p> <p>At the trial of the issues, the jury answered the first question in the negative, and could not agree upon the second. The third was not submitted to them. After the exceptions in the case and the motion for a new trial had been overruled (see 140 Mass. 411), the plaintiffs counsel moved that the order directing issues for the jury be set aside, so far as it related to the second and third issues, on the ground that they were no longer material ; and that a decree be made granting the relief prayed for in the bill.</p> <p>At the hearing upon this motion in the Superior Court, before JS/nowlton, J., the following facts were agreed: The consideration of the notes described in the mortgage was indebtedness from Azubah Brigham, the mortgagor, which had then been for a considerable time due, a part of it to one of the mortgagees, represented by a note which was given up, and a part to the other of the mortgagees. The defendants contended that the previous indebtedness equalled the amount of the notes, and the plaintiff admitted that it was nearly, if not quite, as large as the notes ; and both parties agreed that nothing else of value entered in to make up the amount .named. The mortgage was made op June 15, 1882, and the mortgagor died in December, 1883, without having made any claim, or done anything else regarding the mortgage or the title to the property after the mortgage was made. The plaintiff was present with Azubah Brigham and the defendants at the making of the mortgage.</p> <p>The mortgagor’s estate was declared insolvent by the Probate Court after the bill was brought. JSTo question was made that the defendants were seeking to hold and enforce the mortgage for the payment of the notes described in it.</p> <p>Upon these facts and the verdict of the jury, the judge ruled that the plaintiff could avoid the mortgage, and that a court of equity might properly grant the relief prayed for; ordered that the order directing issues of fact for the jury be set aside, so far as it related to the second and third issues, and a decree be entered as prayed for; and, at the request of the defendants, reported the casé for the determination of this court.</p> <p>If the plaintiff was entitled to the relief prayed for, a decree was to be entered accordingly; otherwise, such other order to be made as law and justice might require.</p>

Tort. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, upon agreed facts, in substance as follows : One Mary A. McGuire recovered judgment against the city, of Boston for $775.77 damages, and $36.60 costs, for an injury received by her by falling on the sidewalk in the highway in front and a part of the estate No. 66 Hanover Street, in Boston.

Bill in equity, filed December 30, 1884, by Frederick C. Floyd and Charles A. Jackson, copartners under the name of the Inquirer Publishing Company, to enforce specific performance of an agreement to renew the lease of a newspaper.

<p>Petition to the Superior Court, under the Pub. Sts. c. 195, § 1, for damages for a breach of the following contract, entered into on December 27, 1878, between the inspectors and superintendent of the state workhouse in Bridgewater, acting in behalf of the Commonwealth, of the first part, and the petitioner of the second part:</p> <p>“That said party of the first part agrees to furnish to said party of the second part all the inmates of said workhouse which said superintendent may not need for the farm work and other necessary work of said workhouse, to be employed by said party of the second part in the manufacture of shoes, or such other business as said inspectors and superintendent may approve of; also to furnish to said party of the second part sufficient work-room for the employment of said men, properly heated, with all water that may be necessary (not, however, including any water for furnishing power in any form); also to furnish one officer to take charge of the said men so employed. All the above to be furnished to said party of the second part for and during the term of six months from the first day of January next.</p> <p>“ Said party of the second part agrees to employ said men so furnished in the manufacture of shoes, or such other business as said inspectors and superintendent may approve, and to furnish and employ at least one competent man to take charge of said inmates during the hours of labor, and instruct them in the business to be carried on during said term of six months, and agrees to pay to said party of the first part the sum of two hundred and fifty dollars, to be paid as follows : one hundred and twenty-five dollars in three months from said first day of January, and one hundred and twenty-five dollars at the end of six months from said date.</p> <p>“ And it is understood and agreed by and between the parties hereto that this agreement at the end of six months may be renewed and extended, and that said party of the second part shall have the privilege of extending this contract for the term of five years after the termination' thereof, he, the said party of the second part, paying for the labor of said inmates at the rate of one thousand dollars per year, in equal quarterly payments.</p> <p>“ And it is further understood and agreed that in case the present number of inmates available under this contract shall be reduced below one hundred in number, the amount to be paid by said party of the second part shall be reduced pro rata.”</p> <p>Trial before Pitman, Mason, and Barher, JJ., who found for the respondent; and, with the consent of parties, reported the case for the determination of this court.</p>

<p>The jurisdiction given to the Superior Court by the Pub. Sts. c. 195, § 1, “ of all claims against the Commonwealth which are founded on contract for the payment of money,” does not extend to the obligation imposed by the Pub. Sts. c. 86, § 26, upon the Commonwealth, to reimburse the expense incurred by a town in the support of a state pauper.</p>

<p>In an action for goods sold by the plaintiff to the defendant, the answer to which was a general denial and payment, the delivery of the goods was not denied by the defendant; and the transfer of stock in a corporation, from the defendant to the plaintiff after the delivery of the goods, was not denied by the plaintiff. The defendant contended, and testified, that the transfer was made in payment for the goods, in pursuance of an agreement, under which the goods werd delivered, that the stock should be taken in payment. The plaintiff testified that a third person, who owned fifty of the one hundred shares for which the certificate was issued, came to the plaintiff and took up his fifty shares, and gave a new certificate for the defendant’s shares, such person being the secretary and treasurer of the corporation issuing the stock. Held, that the defendant - had no ground of exception to the admission of this evidence.</p> <p>In an action for goods sold, if the defendant rests his defence upon oral evidence that a transfer of stock, absolute on its face, from the defendant to the plaintiff, after the delivery of the goods, was intended as payment for the goods, it is competent for the plaintiff to contradict this by oral evidence that the stock was taken as collateral security for such payment.</p> <p>Iv bxcfhbdn an action for goods sold, the defendant has no ground of exception to a refusal of the judge to rule that, if certain stock, transferred by the defendant to the plaintiff after the delivery of the goods, was taken by the plaintiff as collateral security, and had not been tendered back to the defendant, the action could not be maintained.</p>

<p>A policy of insurance upon a vessel, against the perils of the seas, provided that the insurer should not be liable for any partial loss “ on the vessel or freight, unless it amounts to seven per cent,” and, by a clause attached to the margin of the policy, the insurer agreed to “ cover the risk of loss by collision, according to the decisions of the courts of Massachusetts prior to 1858, provided that the company shall not, in any case, be liable for a greater sum than the amount insured by this policy.” This court decided, in 1852, that underwriters insuring a vessel against perils of the sea are bound to pay the assured the amount paid by him to the owners of another vessel for damages suffered in a collision witli the vessel insured, occasioned by the negligence of the master and crew of the latter. The insured vessel came into collision with another, was herself alone in fault, and the damages which her owner was compelled to pay the owner of the other vessel did not amount to a sum equal to seven per cent of the value of the vessel, as agreed in the policy. Held, that no action could be maintained on the policy for the amount so paid.</p>

<p>On a petition to prove exceptions, this court may, in its discretion, on the filing of the report of a commissioner to whom the petition has been referred, recommit the report to the commissioner, with directions for him to report the evidence, although the party who moves that this be done did not at the hearing before the commissioner request him to report the evidence.</p> <p>After the filing of the report of a commissioner, to whom a petition to prove the truth of exceptions lias been referred, it is too late to object that the petition is not verified in accordance with the 30th rule of this court.</p> <p>In an action for goods sold, books of original entries, supported by the suppletory oatli of the person who made the entries, are not admissible in evidence to prove to whom credit was given.</p>

Contract upon a poor debtor’s recognizance, entered into on October 27, 1885, by Albert W. Mann as principal, and the defendant as surety, and containing, among the usual conditions, that Mann should, within thirty days from said October 27, “ deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof” as by law.provided.

Contract upon a judgment recovered by the plaintiff in a district court of the Territory of New Mexico, in an action upon a policy of insurance issued to the plaintiff by the defendant on October 29, 1884. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.

Contract upon án account annexed. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.

<p>Bill in equity, filed May 6, 1886, alleging the following facts:</p> <p>In 1832 Israel Thorndike was seised in fee of a parcel of land in Boston, at the corner of Beacon Street and Belknap Street, now Joy Street, shown on a plan (a sketch of a part of which is printed in the margin of the opposite page) ; and laid out a passageway, five feet wide, running westerly from Belknap Street over the rear portions of lots 1 and 2.</p> <p>On July 11, 1832, Thorndike convejmd lot 2 to Abigail Joy and another, “ together with all the rights, easements, privileges, and appurtenances to the granted premises belonging, particularly a right and privilege in common with me, my heirs and assigns, in a five feet passageway leading from the northeasterly corner of said land to said Belknap Street, and reserving to me, my heirs and assigns forever, the right and privilege of using as a passageway in common with said grantees, their heirs and assigns, a strip of land five feet wide across the northerly end of said granted premises, the said passageway to be maintained and supported at the comhion expense of the several abutters." This lot is now owned by the plaintiff.</p> <p>On the same day Thorndike conveyed lot 4 to Thomas H. Perkins, bounding it southerly in part on the passageway, “ with all rights and privileges to the same belonging, particularly to the right of use in common with the abutters thereon of the said five-foot passageway on the south boundary to the distance of ninety-five feet from Belknap Street.”</p> <p>On October 13, 1832, Thorndike conveyed lot 3 on Beacon Street to one Clark, “ together with the right of use forever in common with the other abutters thereon of a five feet passageway .... to Belknap Street, for any and all purposes at any and all times.”</p> <p> </p> <p>In 1837 Thorndike mortgaged lot 1 to one Upham, “ subject to all existing rights lawfully enjoyed in a five feet passageway across the northerly part of said premises.” *</p> <p>The plaintiff derives his title to lot 2 by a deed executed in 1882, which contains this clause: “ The premises are conveyed with the benefit of and subject to a five feet passageway running across the rear of said parcel.”</p> <p>The defendant derives his title to lot 1 by a deed executed in 1885, which conveys the land, “ subject to such rights as any person or persons legally have in and over a passageway five feet in width running from said Joy Street westerly across the northerly end of said land.”</p> <p>Said passageway was designed to be used, and heretofore for many years and since the laying out of said passageway has been used, by the several abutters thereon, for the purposes of passage, air, light, ventilation, and prospect, for the delivery of supplies and the removal of refuse matter, and for the ordinary and usual purposes of a passageway, including, among other things, access in case of fire and for purposes of building; and the plaintiff, for the due and proper enjoyment of all of said and similar purposes, is entitled to have said passageway kept open and unobstructed to Joy Street, and from the ground upward, for its full width of five feet, and to use and enjoy the same for all of said and similar purposes, as he has heretofore done, and has a right to do.</p> <p>The defendant, who is erecting an apartment house upon lot 1, the rear wall of which apartment house extends up to the line of said passageway, is putting out two rows of bay-windows on the rear wall of said apartment house, overlooking and jutting out and projecting over said passageway, as follows :</p> <p>The row of bay-windows nearest Joy Street projects over said passageway for a distance of eighteen inches beyond the face of the brickwork of said rear wall from a point seven feet nine and a half inches above the level of the said passageway, and is sixty-five feet six inches in height, and fourteen feet six inches wide. The other row of bay-windows projects over said passageway for a distance of thirteen and a half inches beyond the face of the brickwork of said rear wall of said apartment house from a point seven feet three inches above the level of said passageway, and is sixty-five feet six inches in height and eight feet and ten inches wide.</p> <p>The prayer of the bill was that the court would decree that the plaintiff is lawfully entitled, for the uses and purposes herein-before named, to have said five-foot passageway kept open and unobstructed to Joy Street, and from the ground .upward, for its full width of five feet; and that the plaintiff be restrained from permitting said two rows of bay-windows, or any part thereof, from jutting out into and projecting over said five-foot passageway.</p> <p>On May 25, 1886, the plaintiff had leave to amend his bill by alleging that, prior to 1837, while Thorndike was the owner of lot 1, Perkins erected on lot 4 a brick dwelling-house four stories in height, .fronting on Belknap Street, and bordering on said passageway ; 'that said house, without objection, was erected with windows on every story, opening on said passageway, which windows, twenty-two in all, have remained and been enjoyed by the owners and occupants of said house until the present time, without objection from the other abutters on said passageway.</p> <p>The answer alleged that said passageway was designed for the ordinary and usual purposes of a city passageway of that width leading to the rear of dwelling-houses and closed at one end; denied that it was designed to be used for light, air, ventilation, and prospect, or for access in case of fire, or for the purpose of building. It further admitted, for the purpose of the case, if competent as evidence, that the owner on the opposite side of said passageway opened windows as stated; but alleged that any use of said passageway for light, air, prospect, or ventilation was merely incidental, and not matter of right; and denied that said passageway was ever used for access in case of fire or in case of building, except that the defendant had used that part of said way on his own land in erecting the present building; and admitted that, if occasion had arisen, the said way would have been used without objection for purpose of access for building, or in case of fire.</p> <p>The case was heard on the bill and answer, by W. Allen, J., who ordered a decree to be entered dismissing the bill. The plaintiff appealed to the full court.</p>

<p>A testator by his will gave the residue of his estate to his brother D., upon the condition and subject to the charge of paying annually to the mother of the testator’s two illegitimate daughters, “ during her life,” a certain sum, and a certain other sum annually to each of the daughters “ so long as both they and their said mother shall all live,” and, upon “the death of either” of the daughters, a larger annuity to the survivor “ during the life of their said mother; ” and further provided that, upon the death of each daughter, D. should pay to her surviving children a sum named, and that, if either daughter should die without leaving issue, D. “ shall retain said sum to his own use.” Held, that the testator’s daughters were entitled to the annuities given by the will only during the life of their mother. Held, also, that, although one of the daughters was unmarried, and fifty-three years and nine months old, and her mother was dead, D. was not entitled to the fund given for the benefit of her issue.</p>

<p>A. was engaged in the business of “ manufacturing, purchasing, and selling cloaks and garments and all materials therefor; ” and B. was in his employ as manager, buying and selling stock and materials, and employing clerks, servants, and workmen, under an agreement between the parties by which it might “ be terminated by either party, by giving to the other sixty days’ notice in writing of the desire so to do.” A. also agreed to give B. “ the right and privilege to purchase, within the limit of time of such notice, the said business, at the cost price of the stock, of the fixtures and machines, and the lease of the premises” where the business was carried on. While the agreement was in force, A. wrote to B. as follows, “I give you sixty days’ notice to leave my employ.” On the last day of the sixty days, B. wrote to A. that “ I have decided to avail myself of the right and privilege given me in our agreement to purchase the business,” and asked A. to join with him “in ascertaining the cost and the amount to be paid by me; ” but he made no tender or offer to pay the amount, and had not the means or ability to pay the same. It was a matter of discussion between the parties at the inception whether the time should be fixed at thirty or sixty days, and, when about half of the sixty days after giving the notice had expired, A. called B.’s attention to the notice, and urged him, if he intended to make the purchase, to he making his preparations to do so, and B. asked for an extension of the time. Held, that time was of the essence of the contract; and that B. could not maintain a hill in equity against A. for specific performance of the contract.</p>

<p>CONTRACT, upon a promissory note for $1000, dated April 24, 1883, payable, on demand, to the plaintiff, and signed by the defendant. The answer contained a general denial, and continued as follows:</p> <p>“ And further answering the defendant says, that, at the time he received the $1000, in consideration of which the note mentioned in the plaintiff’s declaration was given, the plaintiff had in his possession the sum of $5000, in trust to divide, and which it was his duty to divide, into three parts, giving to the defendant one third of the same, and this the plaintiff promised to do if the plaintiff should not be required to account to the court for said $5000 as administrator of the estate of his father, Joseph G. Perley, deceased; and at the time said note was given the plaintiff promised and agreed that if he should not be called upon to account for said $5000 to the court, as aforesaid, and as soon as he should be free from liability to be held to answer for the same to said court, he would surrender and give up to the defendant said promissory note, and would pay to the defendant the balance of his share of said $5000 ; and the defendant says, that before the commencement of the plaintiff’s action the plaintiff was released from all liability to account for said $5000 as administrator of the estate of the said Joseph G. Perley, and was in duty bound, not only to surrender said promissory note, but to pay over to the defendant the balance of the defendant’s third of said $5000. Wherefore the defendant says that the plaintiff has no right to recover anything of the defendant in said action.”</p> <p>Trial in the Superior Court, without a jury, before Pitman, J., who allowed a bill of exceptions, in substance as follows :</p> <p>The plaintiff offered the note in evidence, and rested his case. The defendant then introduced evidence of declarations and admissions alleged to have been made by the plaintiff tending to show that one Joseph G. Perley, (the father of the plaintiff and of the defendant,) who died on April 19, 1883, leaving a large amount of personal property and real estate, and "whose only heirs at law were the parties to this action and a sister, a few weeks prior to his death gave the plaintiff the sum of $5050, with instructions to pay certain claims against him, and to make a present of $100 to one Parsons, and then to divide the remainder between the plaintiff, the defendant, and their sister.</p> <p>The defendant further testified that he received the $1000 for which the note in suit was given a short time after the father’s death; that the money was given him by the plaintiff as an advanced payment from his portion of said $5050; and that the note was given as a memorandum to show payment, only to be enforced in case the plaintiff was called upon to account for said amount in the Probate Court.</p> <p>Subsequently to the giving of the note in suit, the plaintiff was appointed administrator of the estate of his father, and settled the estate, making no mention in the Probate Court of the $5050, and making no charge of any debts or charges against the estate.</p> <p>The plaintiff denied making any declarations or admissions as contended by the defendant, but contended, and introduced evidence tending to show, that his father gave him a portion of the $5050 for services rendered him; that the balance was given him by his father, with directions to make certain presents and pay certain debts owed by Lis father, to pay all funeral expenses and charges, to provide for the care of his burial lot, and the balance as a gift to himself, which he was to keep as his own; that subsequently he lent to the defendant $1000 out of the whole amount, and took the note in suit; and that he had paid out money as directed by his father, and had paid all bills against the estate, and the charges of administration, out of the same.</p> <p>The plaintiff further contended, that,'after deducting these sums from the whole amount, even if the defendant was entitled to any portion of said sum, it would be much less than the amount claimed on the note; but that neither the defendant nor his sister had any interest in the balance left after paying out these amounts.</p> <p>Upon this evidence, the plaintiff contended that the burden of proof was on the defendant to show that the money was in the plaintiff’s hands in trust for the defendant. The judge ruled that the real issue was as to the consideration of the note ; that the question was whether the defendant obtained the plaintiff’s money, or his own; that the plaintiff’s case required him to prove the proposition on which he relied; that the defendant’s answer was only an explanatory denial; and that the burden of proof did not shift from the plaintiff. The judge found for the defendant; and the plaintiff alleged exceptions.</p>

<p>If a final decree of a justice of this court, sitting in equity, is appealed from, without a report or request for a report of the evidence or facts upon which the decree was made, the only question presented is whether the decree is warranted by the allegations and prayer of the bill.</p> <p>A conveyance of land, “in trust for the uses of a Sabbath school and for the diffusion of Christian principles as taught and practised by Christian Evangelical denominations, with power to erect, repair, and renew from time to time all buildings necessary to carry out the object and purposes of the trust,” constitutes a public charity.</p> <p>Land was conveyed to A., B., and C. " in trust for the uses of a Sabbath school and for the diffusion of Christian principles as taught and practised by Christian Evangelical denominations, with power to erect, repair, and renew from time to time all buildings necessary to carry out the object and purposes of the trust; ” and “ with full power to sell or exchange said land and improvements, whenever, in the judgment of said trustees or of their successors, another location would better subserve the objects and purposes of said trusts.” A building was erected on the land by the trustees, and was occupied and used for the uses and purposes named in the trust deed. Afterwards A. and B., without the consent and against the wishes of C., conveyed the premises to a religious corporation, discharged from all trusts named in the trust deed. On the same day, without C.’s knowledge or consent, A. and B. received from the corporation a deed purporting to convey to A., B., and C. as trustees, to be held upon the trusts stated in the original trust deed, a certain other parcel of land, recited to be given as an exchange for the premises conveyed to the corporation. Four days later, without C.’s knowledge or consent, A. and B. reconveyed to the corporation the parcel of land which the corporation had previously conveyed to the three trustees. This deed was without consideration other than the conditions stated therein, which bound the corporation to erect upon the premises a building suitable for Sabbath school work, and, in substance, to perform all the trusts imposed upon the trustees by the original trust deed ; and provided “ that, when these premises or some other which may be substituted for them shall cease to be- used in accordance with the foregoing conditions, the same shall revert to the grantors or their successors, to be held under the original trust.” Held, that C. could maintain a bill in equity against A. and B. and the corporation to have the several conveyances declared void, and to compel a reconveyance of the land named therein.</p>

Bill in equity, by one of two trustees under the will of Louisa J. O’Brien, against Emery B. Fisher, the other trustee, and in his individual capacity, and Gardner P. Fisher, brothers of the… Held: upon the death of one of the .tenants for life, that the surviving tenants for life were entitled to have the deficiencies in their annuities satisfied out of the released fund.

<p>A bill in equity will not lie to remove a cloud upon the title to land in the possession of the defendant under the foreclosure of a mortgage thereon, as the plaintiff has a plain, adequate, and complete remedy at law by a writ of entry.</p>

Complaint on the Pub. Sts. c. 57, § 5, charging the defendant with having in his possession adulterated milk, with intent unlawfully to sell the same. At the trial in the Superior Court, before Thompson, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.

<p>Under the Pub. Sts. c. 127, § 34, and c. 156, §§ 5, 6, the Probate Court has jurisdiction of a petition by the executor of a will for instructions as to the construction of the will; and from the decree of that court thereon any person aggrieved may appeal to this court.</p> <p>A testator by his will gave pecuniary legacies to certain persons, and provided that, if any of them “ shall die before my decease, I give the sums, which I have given to them respectively, respectively to those persons living at the time of my decease, who shall then be next of kin respectively of those of them whom I may survive.” One of these legatees died in the lifetime of the testator, leaving as his nearest relatives a brother and three nephews, sons of a deceased brother, all of whom survived the testator. Held, that the brother of the legatee was entitled to the legacy, to the exclusion of the nephews.</p>

<p>A town, which, under the Pub. Sts. c. 50, lawfully takes land and constructs a common sewer therein, whereby a well upon land not taken, and not adjoining land taken, is made dry, the well being fed by water percolating through the soil, is liable, under the Pub. Sts. c. 49, §§ 14, 16, 68, and c. 50, § 3, to pay damages therefor to the owner of the land in which the well is situated.</p>

<p>Complaint to the Police Court of Lowell, alleging that the defendant, on December 8, 1885, at Lowell, at the regular annual municipal election of said city, held on said day, when a vote was taken upon the following question, “ Shall licenses be granted for the sale of intoxicating liquors in this city ? ” the vote being then and there by separate ballot, “did upon the question aforesaid, to wit, Shall licenses be granted for the sale of intoxicating liquors in this city ? wilfully, fraudulently, knowingly, and designedly give in more than one ballot at one time of balloting at the vote and election aforesaid,' 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 filed a motion, which was also filed and overruled in the Police Court, to quash the complaint, for the following reason among others : “ That the said complaint sets forth no offence against any law or laws of this Commonwealth.” Staples, J., overruled the motion. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>In an action against a street railway corporation for personal injuries occasioned to the plaintiff by being thrown to the ground from a horse car, in which she was a passenger, through the alleged act of the conductor of the car in ringing the bell and starting the car while she was attempting to alight therefrom, evidence that, immediately after she struck the ground, the conductor, who came to her assistance, said that it was his fault, is inadmissible.</p> <p>In an action against a street railway corporation for personal injuries, an agent of an insurance company testified for the defendant, that be solicited from the plaintiff, at a date subsequent to the injury, an application for a policy in the company he represented; that the plaintiff made such application, and he had with him on the witness stand a blank application sucli as was used by him at the time; that he asked the plaintiff the usual questions, and wrote down the answers on the blank, which the plaintiff afterwards read and signed ; that the original blank application thus filled and signed was at the office of the company in another State; that he had made efforts to get the original from that office, but, instead of the original, what purported to be a copy thereof was sent him, which he produced; and that it was an exact copy of the original signed by the plaintiff. The defendant then offered the copy in evidence; and the judge admitted it. Held, that the plaintiff had no ground of exception.</p>

Contract upon a poor debtor’s recognizance, entered into on May 24,1884, under the Pub. Sts. c. 162, § 28, by the first-named defendant as principal, and the other defendant as surety, and containing the usual conditions. Trial in the Superior Court, before Blodgett, J., who ruled that the action could not be maintained, and directed a verdict for the defendants ; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>The writ in an action was dated September 5, 1884, and was returnable to and entered at October term, 1884, of the Superior Court. The plaintiff was described in the writ as of another State, and the defendant as “ having his usual place of business ” in this Commonwealth. The defendant appeared specially, and, on October 22, 1884, filed a motion to dismiss the action, on the ground that no legal service of the writ had been made upon him, and, on November 6, 1884, he filed a plea in abatement, alleging this and other facts. On December 29, 1884, the last day of the return term, the defendant filed a petition, together with a bond with sureties, for the removal of the action to the Circuit Court of the United States, on the ground that the plaintiff was a citizen of another State and he himself a citizen of this Commonwealth. He had previously at that term, by order of court, filed an answer to the merits, in which he declared that he did not waive his motion to dismiss or his plea in abatement. The defendant filed with the petition for removal a motion, in which he stated that he had filed the petition without prejudice to his motion to dismiss or to his plea in abatement ; that neither the motion nor plea had been heard or determined; and, as the court was about to adjourn without day, he prayed that, in case said motion should not be allowed and said plea should not be sustained, the court would order the removal of the action, as prayed for in said petition. Thereupon the case was “ continued nisi,” for the purpose of giving the court an opportunity to hear and determine said motion and plea, “ reserving the defendant’s right to remove.” At January term, 1885, which was the next term, said motion and plea were heard and overruled, and the defendant excepted, and was given until a certain day to file his exceptions, but filed none. The case was upon the jury trial list for that term, and for all the subsequent terms up to the time it was reached in its order at January term, 1886 ; and the defendant took no further steps for the removal of the action until it was reached for trial, when he called the attention of the court to what he had done, and asked that the action be removed. The Superior Court found as a fact that the parties were citizens of different States, as alleged in the petition ; ruled that the right to remove the action under the petition had been waived ; and that the request for removal, made when the case was reached for trial, was made too late; and denied the petition. Held, that the defendant had no ground of exception.</p>

Petition for partition of certain land in Cambridge. The case was submitted to the Superior Court, and, after judgment for the respondent, to this court, on appeal, upon agreed facts, in substance as follows : Bridget Burke died on March 21, 1883, leaving a husband, the petitioner in this case, and three children by a former marriage.

Libel for a sentence of nullity of marriage. Hearing before W. Allen, J., who -reported for the determination of the full court the following case: The parties were married on November 20, 1882, both being residents of this Commonwealth. The alleged reason of the invalidity of the marriage is that the libellee had a former husband living.

Motion to accept and confirm an award of arbitrators under an agreement of submission, dated December 31, 1885, signed and acknowledged by the parties before a justice of the peace, and providing that the award should be “made and reported within six months from this day to the Superior Court.” On June 4, 1886, the parties signed an agreement, which was not acknowledged before a justice of the peace, by which the time within which the report of the arbitrators was to be…

<p>It is not necessary to the validity of a will that it should be read by or to the person executing it; it is sufficient if the court is satisfied, by competent evidence, that the contents of the will were known to and approved by the person executing it, at the time it was executed as a will.</p>

<p>An assignee in insolvency cannot maintain a bill in equity to relieve the real estate of the insolvent from the incumbrance of a mortgage thereon, executed by the insolvent when a minor, and not ratified or disaffirmed by him after coming of age.</p>

<p>Under the Pub. Sts. c. 15i, § 50, the Municipal Court of the city of Boston has jurisdiction of a complaint for keeping intoxicating liquors with intent to sell the same unlawfully.</p>

Indictment, against Edward H. Galligan and James Galligan, for keeping and maintaining a common nuisance, to wit, a tenement in Canton, 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 September 6, 1886.

<p>The members of an unincorporated beneficiary association, organized by charter from a state council, which is subordinate to a national council, cannot maintain a bill in equity against the officers of the state council, after the charter of the association has been declared forfeited by the state council, to recover possession of property formerly belonging to the association, upon the ground that the charter was illegally declared forfeited, until they have exhausted the remedies prescribed in the constitution and laws of the national council, which give a right of appeal from the action of a state council.</p>

<p>The selectmen of a town, under a vote of the town authorizing it to do so, made a contract with a water company for three years, at a certain rate a year, for the service of a certain number of hydrants. At the expiration of the three years, a town meeting was duly called to consider an article in the warrant, to see what action the town would take with reference to a supply of water for fire and other service. Under this article, it was voted “ that the selectmen be authorized to renew the contract for ten years with the ” water company at a reduced rate per year. Held, that the contract authorized by the vote did not come within the provisions of the Pub. Sts. c. 27, § 27; and that, by the vote, the town did not incur a debt, within the meaning of the Pub. Sts. c. 29, § 1.</p> <p>The Pub. Sts. c. 110, §§ 15, 16, authorizing a city or town in which an aqueduct is situated to put conductors into the pipes for the purpose of drawing water therefrom in case of fires, and empowering the selectmen to make provisions for taking water for protection against fire, have no application to a water company whose charter does not confer a similar power upon the town in which it is situated, or upon the selectmen.</p>

<p>If assets of a partnership are in the possession of one of the partners at his death, and are sold by the executor of his will for less than their value, and the amount received is accounted for as assets of the estate, the surviving partners, on a bill in equity against the executor in his capacity as executor, are only entitled'to recover their proportion of the amount actually received, with interest. _</p>

Tort for personal injuries sustained by the plaintiff on January 15, 1886, by reason of an alleged defect in a sidewalk in one of the streets of the city of Waltham. Answer, a general denial.

Tort for personal injuries occasioned to the plaintiff while at work with a pile-driver in the defendant’s employ. At the trial in the Superior Court, before Thompson, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

Contract, by the assignees in insolvency of the firm of Fitz and Martin, against Charles H. North and S. H. Skilton, co-partners under the firm name of Charles H. North and Company, to recover $610, alleged to have been obtained of Fitz and Martin by the defendants as a fraudulent preference.

<p>Appeal, by the assignee in insolvency of the estate of William H. Murray, from a decision of the Court of Insolvency, allowing the claim of the plaintiff against said estate. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff offered to prove that she was born on July 7, 1860; that William H. Murray, the insolvent debtor, who was her father, was duly appointed her legal guardian by the Probate Court on April 2, 1878, and then took upon himself that trust, and had remained and acted as such guardian ever since; that he instituted proceedings in insolvency, and the time of the first publication of the notice of issuing the warrant upon his petition in insolvency was February 5,1885, and the defendant was duly appointed assignee on March 3, 1885; that the insolvent, while guardian of the plaintiff, and prior to April 30,1878, received into his hands as such guardian $2000 in money, her property, from the estate of his father, James J. Murray; that the sum claimed in this action was a large part of said $2000, with some interest accrued thereon; that the insolvent never received, or had in his hands as the property of the plaintiff, as her guardian, any other property; that she had not, and never-had, any other property; that he had never had any sums due him from or charges to be made against the plaintiff as his ward, or against her said property; that at the time of instituting proceedings in insolvency, and long before that time, and while he was such guardian, the insolvent had appropriated to and for his own use and benefit in his own business, and without the consent of the plaintiff, all of the principal sum of said $2000; and that said William H. Murray had never filed any inventory, and had rendered no account as such guardian to the Probate Court, and had never been cited or requested by his ward or any one else to render such account to said court, but she knew that he owed her, as her guardian, said sum, and claimed it and demanded it of him. -</p> <p>The assignee contended that this action could not be maintained ; that there was not a debt or claim which could, under the laws concerning insolvent debtors, be proved or allowed in the proceedings in insolvency, or could in law be prosecuted in the Superior Court, at least until the guardian of the plaintiff had rendered to and settled his account in the Probate Court; and asked tlie judge so to rule.</p> <p>The judge ruled that the plaintiff could not prove her claim until the amount of the same had been ascertained and determined by the Probate Court in the settlement of the account of the insolvent debtor, as her guardian; and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort, for injuries sustained by the plaintiff on December 5, 1884, while in the defendant’s employ. At the trial in the Superior Court, before Rockwell, J., the evidence for the plaintiff tended to show the following facts :</p> <p>The plaintiff was injured while at work on a carding machine. This machine consists of a large cylinder covered with a strip of wood, called the lag. In this strip card-pins are driven. Back of this cylinder is another called the worker, which works flax or jute into form to pass over the cylinder. This is also covered by a lag. Above the worker and the large cylinder, forward of the worker and within a foot or two of it, is another cylinder, called the stripper, which is also covered by a lag. The worker more or less frequently gets clogged with jute or the other material used, and has to be picked with a hook to enable it to do good work. The pins get bent or torn out, and have to be supplied, and the lag has to be mended with more or less frequency.</p> <p>At the time the plaintiff was injured, he was engaged in picking the worker. The hook got caught, and went into a hole in the lag, and before he could let go of the hook his hand was drawn into the machine, which was in motion, and he sustained the injuries complained of.</p> <p>The lags would not do good work unless kept in repair, and men were employed to look after them and keep them in repair, either by putting in new pins, or by replacing the old lags with new. When the machine was examined after the accident, holes were found in the lag on the worker, caused by the pins coming out.</p> <p>The defendant’s evidence tended to show that there was no better carding machine than the one in use; that it was examined after the accident, and found to be in repair; that not enough pins were broken to injure the machine; that the lags were repaired or renewed when they failed to do good work; that pins got out frequently; that it was the duty of the overseer to keep the machines in repair; that a man was kept at work putting in pins in the lags; that the machines were regularly inspected once a week to see if the pins were broken or dull; that, if not enough pins were out of repair to affect the work, nothing was done to the machine; and that the lags had been on the machine in question about a year.</p> <p>The defendant asked the judge to give several instructions to the jury, of which the third was as follows: “ The making of</p> <p>such ordinary repairs as the machine requires, and the keeping of it in order from day to day, may be entrusted to servants, and if the master employs competent servants for that purpose, and supplies them with suitable means, the master performs his duty.”</p> <p>The judge instructed the jury, on this part of the case, as follows: “ I am unable to give that instruction without some modification. It is apparent, by the testimony' here given, that the defendant had an establishment, a factory; that there was a superintendent for this factory; that in the rooms, each room or collection of rooms, there was an overseer; and that there were servants in the room, all under the control and supervision of the superintendent and overseers. Now, to say, as this request asks me to, that the whole duty of the defendant was performed by engaging suitable persons to work in this room the plaintiff was working in, and doing nothing more, I think, cannot be law accurately stated. But it is certain in this Commonwealth, it is certain by the law, that the employer is not liable for injury to the person employed, the servant, as he is called in legal language, if the injury is occasioned by the neglect of fellow servants. And although the principles of that law have been discussed, and the proposition made to the Legislature to change it, it has not been done. But to say that the mere fact that .proper employees have been employed in each of these rooms, who have been employed as fellow servants, whose business is to take care of these machines, I think, would not be proper instructions, but should be coupled with the provision that it always appeared that the employer had been using all reasonable care in the supervision of the overseers and superintendent of the establishment. It must appear that all these have done their duty. It would not be entire compliance with duty if they simply employed servants to take care of these machines. But if suitable persons are employed to take care of these machines, and to see that they are not dangerous, and that care seems to be exercised continually, and all under the oversight and care of the foreman, overseers, and superintendent, then I think that the instruction should be given, and that the duty of the company has been discharged by such appointment and such supervision. Servants so employed are co-servants of the plaintiff, and the defendant is not liable. They are fellow servants, I believe, in the eyes of the law, and the defendant is not liable for their neglect under ordinary circumstances.”</p> <p>' The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>If a defendant in a suit in equity has appeared, and the bill is taken for confessed against him for want of an answer, he still has the right to be heard upon the form of the decree, and to appeal from it.</p> <p>After a decree in a suit in equity had been entered, that the bill be taken for confessed against the defendant, who had appeared but had filed no answer, a final decree against him was made, from which he appealed. The defendant was then, and for some time before had been, an insolvent debtor; and this fact had been brought to the attention of the court, but not by himself. The assignee in insolvency of his estate, on the day after the final decree was entered, filed a petition asking that the decree be vacated, and that he be allowed to appear and defend the case. He also appealed from the decree against the insolvent. The court allowed him to become a party, file an answer, and try the case on its merits, provided the appeals should be withdrawn, and the answer filed within a certain time; but refused to vacate the decrees. The appeals were withdrawn, and the answer was filed within the time specified. After the hearing on this answer, the debtor filed a plea setting up his discharge in insolvency. The judge who presided at the hearing on the issue raised by the answer of the assignee refused to allow the assignee to try the case on the merits, and refused to consider the question of the debtor’s discharge, on the ground that the plaintiff had had no opportunity to impeach its validity. Held, that, at the trial upon the issues raised by the pleadings, the assignee was entitled to try the case on the merits, and was not precluded from so doing by the fact that the decrees against the original defendant had not been vacated. Held, also, that the. debtor was to have leave to plead his discharge, and to be heard upon it.</p> <p>B., the owner of a stock of goods in a store, made a contract in writing with C., by which B. agreed to sell, and C. to buy, the goods for $14,214.94. C. was to have possession of the goods, with full authority to sell the same as a retail dealer. ■ Eor the security of B., the legal title of the goods was to remain in B., until $14,214.94 was paid, with interest at seven per cent; and the title was to vest in C. “ in the proportion to the amount which at any time he. shall have paid on account of said $14,214.94, and interest.” C. covenanted and agreed that B. should be “ the legal owner of a fractional part of the stock of goods in said store, whether it be these goods or goods subsequently purchased by said C., which fractional part shall at all times bear the same proportion to the balance of $14,214.94, and interest, then unpaid and due from said C., that the whole amount of goods now bears to said sum of $14,214.94.” C. was to pay, out of the proceeds of sales made by him, the expenses of the store, and was to have the right to use the proceeds of sale to purchase new goods in the regular course of business, and to take from the proceeds a certain sum each month for his own use. C. was also to take an account of stock twice a year, and to pay over to B. the net proceeds of the goods sold. C. was also to keep the goods and other goods afterwards purchased insured, the insurance to be payable to B., who, in case of loss, was to collect the insurance, pay to himself the amount then due from C., and pay the balance to C.; and if he was unable to collect the full amount, B. was to bear “ that proportion of that loss which the amount due to him from said C. bears to said sum of $14,214.94, with interest at the rate aforesaid, at the time of said loss.” C. took possession of the goods, made sales, bought other goods, and made partial payments, when B., for breach of condition on the part of C., entered and took possession of all the goods then remaining, against C.’s consent. At this time the value of the goods in the store was $14,500, of which about $6000 worth had been bought by C., but not paid for. At the time the goods were sold by B. to C. the price stated was their fair value. Held, that the contract was one of a conditional sale, and was not in effect a mortgage. Held, also, that the clause as to B.’s interest in the goods was to be interpreted as if it read, “ B.’s fractional part shall at all times bear the same proportion to the whole amount of goods as the balance of $14,214.94, and interest, then unpaid, bears to $14,214.94.” Held, also, that if the contract was not actually fraudulent, as against the creditors of C., and B. rightfully took possession of the goods, before they were attached and proceedings in insolvency were instituted, and retained possession, his title to the extent of his interest was good against C.’s assignee in insolvency ; and that this applied to the after-acquired goods, as well as to those sold by B.</p>

<p>A part of a machine used in a cotton mill consisted of a pulley, over which a chain passed, to one end of which was hung a weight. An extra weight was hung by a raw-hide lacing to a hook made of wire, fastened into the chain to which the other weight hung. The extra weight did not come with the machine, and was not specially intended as a weight. It had been used upon the machine for about two years for the purpose of moving more rapidly a part of the machine, but the weight had been off at times during the two years, and the machine operated successfully without it, although better with it. A person who was employed upon the machine was injured by the falling of the weight, in consequence of the breaking of the lacing. Held, in an action for such injury, that, there being no dispute how the weight was attached, or as to its purpose, it was rightly ruled that the weight was a part of the machine.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the employ of the defendant, by the falling of a weight, in consequence of the breaking of a lacing by which the weight was hung to a hook fastened into a chain attached to a machine on which the plaintiff was at work, the defendant asked the judge to instruct the jury as follows : “The duty of seeing that the lacing by which the weight was put on the machine was properly secured, or was a suitable one, was a duty which the defendant could delegate to an employee ; and if it was delegated, and the employee was provided with suitable means to repair or replace the lacing, then the neglect of such employee to see that the same was properly renewed or was a suitable one was the neglect of a fellow servant of the plaintiff, and the plaintiff cannot recover for any injury caused by such neglect.” The judge declined so to rule, and instructed the jury as follows : “ If the master provides suitable appliances and competent persons to attend to them, he has done his duty. If he provides proper persons to see that his machinery is kept in proper condition to use, and the injury is caused by the negligence of the person so employed, the master is not liable, and a person so employed to keep the machinery in repair is a fellow servant, within the rule. If you find that the weight, as tied up by the lacing, was not a proper machine, and the defendant knew or ought to have known it, the defendant is liable, if the accident happened while the plaintiff was in the exercise of due care.” Held, that the defendant had no ground of exception.</p>

<p>Scire facias against the executor of the will of Abigail Barker, deceased, to enforce the personal liability of the defendant, upon a suggestion- of waste of said estate, under the provisions of the Pub. Sts. c. 166, § 10. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows: Abigail Barker died in August, 1877, leaving a will, in which the defendant was named as executor and residuary legatee. The will was duly proved, the defendant was appointed executor, and gave a bond in the penal sum of $500, conditioned to pay all debts and legacies, and took the entire estate. The defendant duly published notice of his appointment, and no further proceedings were had in the .Probate Court; the defendant filing no inventory and no account, and not representing the estate as insolvent. The estate of the testatrix at her decease consisted of certain lands in Boxford, and of bank stocks.</p> <p>On December 28,1878, the plaintiff brought an action against the defendant as executor, to recover a debt due from the testatrix, and, at September term, 1879, of the Superior Court, recovered judgment therein. Execution duly- issued upon this judgment, and was placed in the hands of an officer, who made demand upon the defendant for sufficient goods or estate of the testatrix to satisfy the same; and, the defendant refusing to satisfy said execution, or to exhibit any goods or estate of the testatrix to be taken upon the same, it was in part satisfied by a sale of certain real estate of the testatrix, and so returned to court.</p> <p>Thereupon an action was brought by the plaintiff against the defendant, as executor, upon his bond, and judgment was rendered therein for the plaintiff, and execution issued for the amount of the penal sum of the bond, which amount was paid and applied in further part satisfaction of the original judgment and execution, leaving a balance due and remaining unsatisfied upon said execution, on May 27, 1881, of $609.63, which amount has never been paid.</p> <p>No insufficiency of assets was set up in the original action, but it was tried upon its merits. The estate left by the testatrix was larger than the amount of the judgment recovered by the plaintiff. The first-mentioned action, in which the plaintiff recovered judgment against the defendant as executor, was founded upon a promissory note signed by the testatrix.</p> <p>Soon after the defendant gave his bond and was appointed executor, in October, 1877, the plaintiff exhibited said note to the defendant, and demanded payment thereof.</p> <p>The bank stock belonging to the testatrix at her decease consisted of eleven shares, and was worth about $1400, and was larger in value than the balance due the plaintiff upon his judgment and execution.</p> <p>The defendant offers to prove that the testatrix, at her decease, was indebted to the defendant for care and support in the sum of $900, an amount which, together with the amount paid in the action upon the bond, was equal to the value of the bank stock; that, at the time he gave his bond, he was ignorant of the plaintiff’s claim, and- supposed that the estate of the testatrix was ample to pay all liabilities; that, on February 28, 1878, and September 3, 1878, the defendant, as executor, transferred to himself in his individual capacity all of the bank stock, in payment of the indebtedness of the testatrix; and that the bank stock and the land sold upon the plaintiff’s execution were all the estate left by the testatrix.</p> <p>To this offer of proof the plaintiff objects, upon the ground that it is incompetent and immaterial for the defendant to prove the allegations in his offer, or either of them; but, if it is competent and material, the plaintiff admits, for the purposes of this case, that the defendant could prove the facts stated in his offer.</p>

<p>Contract to recover the amount of a tax assessed upon personal estate of the plaintiff on May 1, 1883, and paid under protest. Trial in the Superior Court, without a jury, before Rockwell, J., who found for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Tort, for being expelled from a car of the defendant corporation on September 7, 1885. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows:</p> <p>The plaintiff resides in the Charlestown District of Boston, and has his usual place of business at No. 16 Boylston Street, Boston. The defendant is a corporation owning and operating a street railway in Boston.</p> <p>On September 7,1885, at about 6.25 A. M., the plaintiff entered a car of the Middlesex Railroad Company, a corporation also owning and operating a street railway in Boston, on Main Street, opposite Winthrop Street, in said Charlestown District, for the purpose of going to his place of business. The streets through which said Middlesex car was run on said September 7, and through which it and a certain number of the other cars of said Middlesex Company were then, and are now, regularly run every six minutes, are as follows: From Charlestown Neck, through Main Street to City Square, through City Square to Warren Avenue; through Warren Avenue to Warren Bridge; over Warren Bridge to Beverly Street; through Beverly Street to Charlestown Street; through Charlestown Street to Hay market Square; through Haymarket Square to New Washington Street; through New Washington Street to Washington Street; through Washington Street to Summer Street; through Summer Street to Lincoln Street; through Lincoln Street to Beach Street; through Beach Street to Federal Street; through Federal Street to Kneeland Street; through Kneeland Street (stopping to leave and receive passengers at the Old Colony and Boston and Albany stations) to Lincoln Street; through Lincoln Street to Beach Street; through Beach Street to Washington Street; through Washington Street to Boylston Street; through Boylston Street to Tremont Street; through Tremont Street to Scollay Square; through S coll ay Square to Cornhill; through Cornhill to New Washington Street; through New Washington Street to Haymarket Square; through Haymarket Square to Charlestown Street; through Charlestown Street to Beverly Street; through Beverly Street to Warren Bridge; over Warren Bridge to Warren Avenue; through Warren Avenue to City Square; through City Square to Park Street; through Park Street to Warren Street; through Warren Street to Main Street; and through Main Street to Charlestown Neck.</p> <p>To ride over the entire distance traversed by the car two fares of five cents each were required. A passenger could ride on a single fare of five cents to the corner of Tremont Street and Boylston Street; but it required another fare of five cents to ride back to Charlestown Neck. Soon after entering said car, the plaintiff paid the conductor of the car the sum of eight cents, and received from the conductor an eiglit-cent check, so called, in due form and dated the same day, and being a check of the kind referred to in the Pub. Sts. c. 113, § 47. The plaintiff left said car at the corner of Washington Street and Summer Street, and walked directly to his said place of business, No. 16 Boylston Street. He remained at No. 16 Boylston Street until shortly before 9.45 A. M., when, desiring to go to No. 17 Union Street, he left his place of business, went directly therefrom to Tremont Street, walked down Tremont Street until a car of the defendant corporation overtook him, and got upon said car on Tremont Street, between Mason Street and West Street, for the purpose of going to No. 17 Union Street, which is between North Street and Hanover Street.</p> <p>The streets through which the Highland car was run on September 7, and through which it and a certain number of the other cars of said Highland company were then, and are now, regularly run every ten minutes, are as follows : From West Roxbury Park, through Blue Hill Avenue, to Dudley Street; through Dudley Street to .Hampden Street; through Hampden Street, to Northampton Street; through Northampton Street to Shawmut Avenue; through Shawmut Avenue to Tremont Street; through Tremont Street to Scollay Square; through Scollay Square to Court Street; through Court Street to Hanover Street; through Hanover Street to New Washington Street; through New Washington Street to Haymarket Square; through Haymarket Square to Canal Street; through Canal Street to Causeway Street; back through Canal Street to Haymarket Square ; through Haymarket Square to Sudbury Street; through Sudbury Street to Court Street; through Court Street to Scollay Square; through Scollay Square to Tremont Street; through Tremont Street to Shawmut Avenue; through Shawmut Avenue to Northampton Street; through Northampton Street to Hampden Street; through Hampden Street to Dudley Street; through Dudley Street to Blue Hill Avenue; and through Blue Hill Avenue to said West Roxbury Park.</p> <p>The nearest point to No. 17 Union Street reached upon said Highland car is at the corner of Hanover Street and New Washington Street; and the shortest distance from the Highland track at that point to said No. 17 is through Hanover Street, Friend Street, and Union Street, and is four hundred and fifty-nine feet. The nearest point to said No. 17 Union Street reached upon said Middlesex car is the crossing of New Washington Street and Elm Street, and the shortest distance from the Middlesex track at that point to said No. 17 is through Elm Street and Union Street, and is four hundred and twelve feet.</p> <p>After the plaintiff had got upon said Highland car, the conductor thereof demanded the plaintiff’s fare; and thereupon the plaintiff tendered to the conductor said eight-cent check, which he had received from the conductor of the Middlesex car. The conductor of the Highland car refused to receive said check, and, the plaintiff refusing to pay any other fare, the conductor compelled the plaintiff to leave said car at School Street, on Tremont Street.</p> <p>If the court should be of the opinion that said eight-cent check was good for the ride which the plaintiff was taking upon the defendant’s car, judgment was to be entered for the plaintiff for the sum of $ 150; otherwise, judgment to be entered for the defendant.</p>

Contract, for breach of an agreement to convey to the plaintiff certain real estate on Cedar Park in Melrose. Answer, the statute of frauds.

Tort, for an alleged libel, contained in the following words : “ Probably never in the history of the Ancient and Honorable Artillery Company was a more unsatisfactory dinner served than that of Monday last. One would suppose, from the elaborate bill of fare, that a sumptuous dinner would be furnished by the caterer, Dooling; but instead, a wretched dinner was served, and in such a way that even hungry barbarians might justly object.

<p>Contract. Writ dated March 14, 1882, and returnable to the Superior Court. The declaration contained two counts. The first count was for money had and received. The second count, which was alleged to be for the same cause of action, contained the following: “ The plaintiff says that on the twenty-eighth day of September, 1881, she paid to the defendant four-thousand dollars, which it then agreed to apply in payment for forty shares, of the par value of one hundred dollars each, of capital stock in the Pacific National Bank in an increase of said capital stock in the amount of five hundred thousand dollars, which increase of five hundred thousand dollars it then agreed to make, and to -issue to her, within a reasonable time after the said twenty-eighth day of September, forty shares of said increase of capital of the par value of one hundred dollars each. And the plaintiff says that the defendant did not so apply said four thousand dollars for the use and benefit of the plaintiff, as it was bound to do, and it did not, within a reasonable time thereafter, issue and give to her, nor has it at any time issued or given to her, forty shares of said stock, of the par value of one hundred dollars each, in an increase of five hundred thousand dollars of said capital stock, as it agreed to do, but has wholly failed so to do, and it owes her said four thousand dollars, with interest thereon since the same was paid to it as aforesaid.” The answer, in addition to a general denial as to each count, alleged that the defendant “is, and ever since the year 1877 has been, a national banking association duly organized and established under the law of the United States; that on September 13, 1881, the directors of the defendant association, being thereto duly authorized, voted to increase the capital stock of said association from five hundred thousand to one million dollars; that thereupon the plaintiff, being the holder of forty shares of the capital stock of said association, became entitled to take forty shares of the new stock upon paying four thousand dollars therefor to the association on or before October 1 then next ensuing; that on or about September 28, 1881, the plaintiff paid the defendant four thousand dollars for said forty shares of new stock, and subsequently, before this action was begun, the same were placed in her name, and a certificate was issued to her therefor.”</p> <p>The case was removed by the defendant to this court, under the Pub. Sts. c. 152, § 8, where it was tried, without a jury, before W. Allen, J., who reported it, in substance as follows:</p> <p>The defendant is a national banking association, organized under the laws of the United States, by articles of association, of which the fifth article is as follows: “ The capital stock of this association shall be two hundred and fifty thousand dollars, to be divided into shares of one hundred dollars each ; but the capital may be increased according to the provisions of § 5142 of the Revised Statutes to any sum not exceeding ten hundred thousand dollars; and, in the case of the increase of capital of the association, each stockholder shall have the privilege of subscribing for such number of shares of the proposed increase of the capital stock as he may be entitled to according to the number of shares owned by him before the stock is increased.” By article 6, power is given the directors “ to provide for an increase of the capital of the association, and to regulate the manner in which such increase shall be made.”</p> <p>The association also adopted by-laws, of which § 11 is as follows: “Whenever an increase of stock shall be determined upon, it shall be the duty of the board to notify all the stockholders of the same, and cause a subscription to be opened for such increase; and each stockholder shall have the privilege of subscribing for such number of shares of new stock as he may be entitled to subscribe for, in- proportion to his existing • stock in the bank. If any stockholder shall fail to subscribe for the amount of stock to which he may be entitled, within a reasonable time, which shall be stated in the notice, the directors may determine what disposition shall be made of the privilege of subscribing for the new stock.”</p> <p>On September 13, 1881, the capital stock of the defendant was #500,000, of which the plaintiff owned forty shares, which stood in her name on the books of the defendant, and for which she held a certificate. On that day the directors of the defendant voted “ that the capital of this bank be increased to one million dollars, and that the stockholders of this date have the right to take the new stock at par to an equal amount to that now held by them.” And a notice of such increase, signed by the cashier of the defendant, and dated September 13, 1881, was sent to and received by the plaintiff, as follows: “ At a meeting of the directors of this bank held this day, it was voted, that the capital of this bank be increased to one million dollars, and that the stockholders of this date have the right to take the new stock at par in equal amounts to that now held by them. Subscription to the new stock payable October 1st. Parties desiring to anticipate payment will be allowed interest to that date at four per cent per annum.”</p> <p>No subscription books were opened, and the plaintiff did not subscribe for any stock in said increase of capital, but on September 28, 1881, she paid to the defendant #4000, and received a receipt, signed by the said cashier, as follows: “ Received of Mary J. Eaton four thousand dollars, on account of subscription to new stock.”</p> <p>The whole amount of increase of capital to $1,000,000, being $500,000, was never paid in, and no notice was ever transmitted to the comptroller of the currency that said additional $500,000 had been paid in, or that the whole amount of such proposed increase of the capital to $1,000,000 had been paid in, and the comptroller never issued a certificate stating that the said capital stock had been increased to the amount of $1,000,000, voted as above set forth. Nor did he ever certify his approval of such increase, or that it had been duly paid in as a part of the capital of said defendant, and no action was taken by him respecting any increase of stock from that of $500,000, except as hereinafter stated. Only $461,300 of said proposed increase of $500,000 was ever taken or paid in, all of which was paid in prior to November 18, 1881, and was used in the general business of the bank with its other funds. On November 18, 1881, the defendant became unable to meet its debts and liabilities, suspended payment thereof, failed to redeem its circulating notes, and thereupon closed its doors to business.</p> <p>Daniel Needham, a duly appointed examiner of national banks, having made an examination of said bank, and having reported its condition to the comptroller of the currency, was, on November 18, 1881, placed in charge and possession of said bank, and of all its funds, assets, records, and books, by said comptroller. The bank remained under the exclusive charge and in the possession of Needham-, with its doors closed to business, until on or about March 18, 1882, the directors thereof having in the mean time no possession or control over the assets of said bank, or of the moneys received or paid out on account of the bank, except under the supervision, control, and authority of said examiner.</p> <p>On December 13, 1881, the directors of the defendant passed the following votes:</p> <p>“Voted, that whereas it was voted by this board, on the thirteenth day of September last, that the capital of this bank be increased to one million dollars, and that the stockholders of this date have the'right to take the new stock at par in equal amount to that held by them; and whereas the stockholders were duly notified of said vote, and also that subscriptions to the new stock should be payable October 1st ; and whereas $461,300 of said new stock has been taken and paid in; and whereas $38,700 thereof has not been taken and paid in, voted, that said $38,700 of said stock be and is hereby cancelled and deducted from said capital stock of $1,000,000, and that the paid up capital stock of this association amounts to $961,300.</p> <p>“Voted, that the comptroller of the currency be notified that the capital of this association has been increased in the sum of $461,300, and that the whole amount of said increase has been paid in as part of the capital of this association, and that he be requested to issue his certificate of said increase to this association according to law.”</p> <p>On the same day, the cashier of the defendant, by direction of the directors, and upon suggestion of the comptroller that such a certificate should be sent to him, sent the following certificate, signed and duly sworn to by the cashier, to the comptroller of the currency, together with a copy of the foregoing votes: “ It is hereby certified that the capital stock of the Pacific National Bank of Boston has been increased, pursuant to the articles of association of said bank, in the sum of four hundred and sixty-one thousand three hundred dollars, all of which has been paid in, and that the paid up capital stock of said bank now amounts to nine hundred sixty-one thousand three hundred dollars.”</p> <p>On receipt of said certificate and copy, the comptroller of the currency sent to the directors of the defendant the following certificate signed by him, under seal, and dated December 16, 1881: “ Whereas satisfactory notice has been transmitted to the comptroller of the currency that the capital stock of the Pacific National Bank of Boston, Mass., has been increased to the sum of four hundred and sixty-one thousand three hundred dollars, in accordance with its articles of association, and that the whole amount of such increase has been paid in: now it is hereby certified that the capital stock of the Pacific National Bank of Boston, Mass., aforesaid, has been increased as aforesaid in the sum of four hundred and sixty-one thousand three hundred dollars; that said increase of capital has been paid in to said bank as a part of the capital thereof; and that the said increase of capital stock is approved by the comptroller of the currency.”</p> <p>There was no vote of the stockholders of the defendant relating to the increase or reduction of its capital stock.</p> <p>On December 16, 1881, the comptroller also sent to the defendant the following communication, signed by him, and under seal: “The entire capital stock of the Pacific National Bank of Boston, Massachusetts, amounting to nine hundred and sixty-one thousand three hundred dollars ($961,300) having been lost, notice is hereby given to said bank, under the provisions of section 5205 of the Revised Statutes of the United States, to pay the deficiency in its capital stock by an assessment of one hundred per cent upon its shareholders pro rata for the amount of capital stock held by each, and that if such deficiency shall not be paid, and said bank shall refuse to go into liquidation as provided by law, for three months after this notice shall have been received by it, a receiver may be appointed to close up the business of the association according to the provisions of section 5234 of the Revised Statutes of the United States.”</p> <p>No certificate of stock in said proposed increase of capital in the amount of $500,000' was made by the bank, nor was any certificate in said claimed increase of $461,300 received by or offered to the plaintiff; but when the certificate from the comptroller, made December 16, was received by the bank, a certificate of forty shares in said claimed increase of $461,300 was made by the bank, which was never called for, taken by, or tendered to the plaintiff, but still remains in the certificate book, and she was then registered in the stock register of the bank as the owner thereof, without her knowledge. No certificates in said claimed increase were ever tendered by the bank to the persons to whom they were made, but certificates were delivered to them when called for. No communication was made to the plaintiff with reference to said vote of the directors of December 13, or to the change in said proposed increase, or to said certificate of the comptroller, or to said certificate made to her; and she never assented to any change in the proposed increase in the sum of $500,000.</p> <p>On January 10, 1882, before the opening of the annual meeting hereinafter referred to, she made the following demand upon the defendant in writing, delivered to its directors:</p> <p>“ Boston, January 10, 1882. To the Pacific National Bank: The conditions upon which you received four thousand dollars of me on the twenty-eighth day of September, 1881, not having been performed, I hereby demand payment of said four thousand dollars. Mary J. Eaton.”</p> <p>On December 10, 1881, the directors voted to call the annual meeting of the stockholders, to be held on January 10,1882, and thereupon a notice thereof was sent to and received by the plaintiff. This notice was also printed in the newspapers then published in Boston.</p> <p>At this meeting the said examiner made a report of the condition of the bank, and among other things the following votes were passed:</p> <p>“Voted, In accordance with the notice of the comptroller of the currency, dated December 16, 1881, there be and hereby is laid an assessment of one hundred per cent upon the shareholders of the Pacific National Bank of Boston, Mass., pro rata for the amount of capital stock of said bank held by each shareholder.</p> <p>“Voted, That the board of directors notify each shareholder of said assessment and collect the same forthwith.”</p> <p>The whole number of votes cast was 5549, representing 5549 shares of stock, of which 5494 were in the affirmative and 55 in the negative.</p> <p>The plaintiff attended said meeting by her authorized attorney under the following proxy, signed by her, which was not filed with the bank, and on which no vote was cast:</p> <p>“ Know all men by these presents that I, the undersigned, stockholder in the Pacific National Bank, do hereby appoint J. H. Benton, Jr., true and lawful attorney, with power of substitution for myself and in my name, to vote at the meeting of the stockholders in said company upon my forty shares of said stock, to be held at Boston, January 10, or at any adjournment thereof, with all the power I should possess if personally present, hereby revoking all previous proxies. And this proxy does not apply to anything but my forty shares of the original stock of said bank.”</p> <p>Notice of said assessment and vote was forthwith given to the plaintiff by said bank, but she never paid any part thereof.</p> <p>The total amount paid in to said directors by the stockholders, on the assessment agreed upon at said meeting of January 10, 1882, was S742,800, and it was all paid in prior to May 20, 1882.</p> <p>On March 18, 1882, by permission of the comptroller of the currency, the directors took possession of the assets of said bank, opened its doors to business, and continued to do a general banking business, lending money, receiving and paying deposits, and paying debts and expenses, until May 20, 1882, but made no losses on new loans during that period. The bank was closed to business on May 20,1882, and the directors voted to go into liquidation ; and thereupon Linus M. Price was appointed receiver thereof by the comptroller of the currency, and continued in charge of said bank, and of its assets, books, papers, and records, until March 18, 1886, when Peter Butler was appointed by said comptroller receiver thereof in place of said Price, and said Butler has ever since been in charge of said bank, and of its assets, books, papers, and records.</p> <p>-The only authority of the bank to increase or reduce its capital was under its articles of association and the by-law herein-before set forth, and §§ 5142 and 5143 of the Revised Statutes of the United States, which are as follows :</p> <p>“ Any association formed under this title may, by its articles of association, provide for an increase of its capital from time to time, as may be deemed expedient, subject to the limitations of this title. But the maximum of such increase to be provided in the articles of association shall be determined by the comptroller of the currency; and no increase "of capital shall be valid until the whole amount of such increase is paid in, and notice thereof has been transmitted to the comptroller of the currency, and his certificate obtained specifying the amount of such increase of capital stock, with his approval thereof, and that it has been duly paid in as part of the capital of such association.</p> <p>“ Any association formed under this title may, by the vote of shareholders owning two thirds of its capital stock, reduce its capital to any sum not below the amount required by this title to authorize the formation of associations ; but no such reduction shall be allowable which will reduce the capital of the association below the amount required for its outstanding circulation, nor shall any such reduction be made until the amount of the proposed reduction has been reported to the comptroller of the currency and his approval thereof obtained.”</p> <p>The report concluded as follows : “ Upon the trial before me, I found the foregoing facts, subject to any objection by either party as to their materiality or competency; and, at the request of the parties, reserve the case for the consideration of the full court.”</p>

Tort for personal injuries sustained by the plaintiff while at work upon a carding machine in the defendant’s mill. Trial in the Superior Court, before Mason, J., who ruled that, upon the evidence, the plaintiff could not maintain the action, and directed a verdict for the defendant. The plaintiff alleged exceptions, which appear in the opinion.

<p>Petition to the Probate Court, under the Pub. Sts. c. 147, § 33, by Hannah Doole, alleging that she was the lawful wife of William J. Doole, and that her husband failed without just cause to furnish suitable support for her; 'and praying that the court would prohibit the husband from imposing any restraint on her personal liberty, and would make an order for her support.</p> <p>On this petition the judge of probate made a decree, on October 14, 1885, that “ the said William J. Doole do pay to the said petitioner the sum of fifteen hundred dollars forthwith, such sum being decreed to be the whole sum to which the said petitioner shall be entitled by way of separate support.”</p> <p>From this decree the petitioner appealed, and subsequently filed the following reasons of appeal:</p> <p>“ 1. That the decree purports to be in full for support during the remainder of the petitioner’s life, and that the amount granted to her is manifestly insufficient for her apparent needs during the probable length of her life.</p> <p>“ 2. That the said decree was based upon calculations of the value of the husband’s property manifestly erroneous.</p> <p>“ 3. That it in no wise provided for any counsel fee for the petitioner’s counsel, and would compel the petitioner to pay and reimburse a third person therefor out of money awarded to her solely for her support.”</p> <p>The case was heard in this court, before 0. Allen, J., on a motion by the respondent to dismiss the appeal; and the judge reported the case for the consideration of the full court, in substance as follows:</p> <p>At the hearing it appeared that the petitioner had legal counsel during all the proceedings; that by assent of both parties the judge of probate fixed a sum in gross; that he gave to the petitioner her choice whether to have a decree for the payment of $1500 in gross or $6 a week; that she elected the sum in gross; that $25 was paid to her after the judge announced what his decree would be, but before the formal entry of it on October 14; that on October 15, 1885, the sum of $1475 was paid to her by her husband, and she signed a receipt for the $1500, dated that day; that no offer to return the same has ever been made by her; and that she claimed an appeal on November 10, 1885, and filed her reasons of appeal on November 20, 1885, as appears by the paper on file.</p> <p>The petitioner’s counsel contended, that; by virtue of the Pub. Sts. o. 156, § 13, the petitioner had a right to keep the money and prosecute her appeal.</p> <p>The judge held, that, by accepting and keeping the $1500 she had elected to accept the decree as final, and could not prosecute an appeal therefrom for the reasons stated in her reasons of appeal; and ordered the appeal to be dismissed.</p> <p>The petitioner appealed to the full court.</p>

<p>Bill in equity, filed January 26, 1886, by the assignee in insolvency of the estate of Reynolds T. White, against said White, John J. McNutt, and Edward Hobbs, containing the following allegations:</p> <p>On September 10, 1885, the plaintiff was duly appointed assignee of the estate of said Reynolds T. White, an .insolvent debtor, and on the same day all the estate, real and personal, of said White, including all the property of which he was possessed, or which he was interested in or entitled to, on August 5, 1885, was assigned to the plaintiff, as assignee, by the judge of the Court of Insolvency.</p> <p>Among the property of said White, on August 5, 1885, were certain letters patent of the United States.</p> <p>All of said patents, before said September 10, were assigned to the defendant McNutt as collateral security for a loan, which loan the plaintiff is informed and believes has been paid, but said assignments to McNutt have never been recorded in the Patent Office as required by law.</p> <p>The plaintiff is informed and believes that McNutt has assigned one of said letters patent to the defendant Hobbs, at the request of said White, but the same has never been delivered, and that said assignment by McNutt to Hobbs is wholly without consideration and void.</p> <p>The plaintiff has demanded of White said letters patent, but White refuses to assign the same to him.</p> <p>McNutt does not claim any interest in said letters patent, and is willing to assign the same to the plaintiff with the consent of White.</p> <p>The prayer of the bill was, that it might be ascertained to whom said letters patent rightfully belonged on August 5, 1885, and what interest, legal or equitable, White had in said letters patent on said day; and that if it were found that on said day said letters patent belonged to White, or if assigned by White to McNutt as security for a loan which has since been paid, or if held by Hobbs without consideration, said party or parties holding the legal title to said patents might be ordered to assign said letters patent to the plaintiff; and for an injunction.</p> <p>The defendants demurred to the bill, for want of equity ; and it was agreed that the facts alleged in the bill were admitted for the purposes of this suit.</p> <p>The case was heard upon the bill and demurrer, by Holmes, J., who, upon the filing of the above agreement, overruled the demurrer, and, at the request of the defendants, reported the case for the consideration of the full court; such decree to be made as justice and equity might require.</p>

Tort for negligence in the transportation of a cow. Trial in the Superior Court, before Hammond, J., who reported the case for the determination of this court, in substance as follows : The defendant consented to be defaulted, and that judgment should be entered against it in the sum of $80.

Bill in equity, filed March 23, 1878, to restrain the foreclosure of a mortgage of a parcel of land, and to compel the mortgagee to release the land from the mortgage.

<p>If a person, who has been arrested by a police officer without a warrant, under the Pub. Sts. c. 207, § 25, for being intoxicated in a public place, consents to his discharge from custody without a complaint being made against him, intending thereby to release any damages on account of a failure to make the complaint, and such agreement is fairly and intelligently made, he cannot maintain an action against the officer for an assault and false imprisonment.</p>

Complaint on the Pub. Sts. c. 101, §§ 6, 7, for keeping and maintaining a certain common nuisance, to wit, a tenement in Natick, used for the illegal sale and illegal keeping of intoxicating liquors, on August 1,1886, and on divers other days and times between that day and September 16, 1886. At the trial in the Superior Court, before Thompson, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.

Tort. The declaration alleged that, on May 12, 1885, the defendant made an assault upon the plaintiff, and, with intent to maim and disfigure the plaintiff, with the defendant’s teeth bit, mutilated, and tore the plaintiff’s nose. Answer, a general denial.

<p>Tort for breaking and entering the plaintiff’s close in that part of Boston formerly West Roxbury, and keeping the plaintiff from the use, possession, and improvement of the same from September 1, 1882, to the date of the writ, September 12, 1885. Trial in the Superior Court, before Mason, J., who reported the case for the determination of this court, in substance as follows:</p> <p>One Gilman Page was, in 1868, the„ owner of land which included the premises described in the plaintiff’s declaration. Gilman Page died in 1881, leaving a will, which was admitted to probate on July 25, 1881, by which he devised his real estate to the plaintiff, upon certain trusts declared in the will; and the plaintiff duly qualified, and was duly appointed trustee under the will, on or about the last-named date. The town of West Roxbury, in 1868, duly took certain land and premises, which included the land described in the declaration, under and by virtue of the St. of 1868, c. 223 ; * and duly filed in the registry of deeds for the county in which said land was then situate a description and statement as required by the statute, and in all other respects óomplied with the statute. Thereafter the town of West Roxbury was by law duly annexed to, and became part of, the city of Boston ; and said city succeeded to and became entitled to all the rights obtained by said town under said taking. Afterwards, on or about November 1, 1882, the defendant, by virtue of a contract with the city of Boston, became a tenant at will of said city as to the land described in the plaintiff’s declaration; and, as such tenant, the defendant entered upon the premises on or about November 1, 1882, and erected thereon certain structures, and has used and occupied the same from said last-named date down to the date of the plaintiff’s writ. During said time the defendant has paid rent to the city of Boston for said premises as its tenant, under his contract with said city. On the day of the date of the plaintiff’s writ, the plaintiff entered upon the land and premises described in his declaration, for the purpose of repossessing himself of the same.</p> <p>Upon the foregoing facts, which were agreed, the judge found for the defendant. If the finding was right, the same was to stand, and judgment -to be entered thereon ; if the plaintiff was entitled to recover, the case was to be remitted to the Superior Court for the assessment of damages.</p>

<p>Under the Pub. Sts. c. 115, § 8, the sum payable upon the death of a member of a beneficiary association is not attachable by a creditor of the beneficiary by trustee process, while it remains in the hands of the association; and the creditor cannot maintain such process by proving that the person to whom the certificate was issued was not in fact a member of the corporation issuing it, or that its funds were not obtained in compliance with the law regulating such associations.</p>

Contract upon four promissory notes, each for $130, and all dated March 1, 1879, payable three, six, nine, and twelve months after date, respectively, to the order of the plaintiff, and signed by the defendant. Writ dated August 28, 1885. The answer, among other defences, set up the statute of limitations as to the first note.

Contract for money had and received, with interest. Trial in the Superior Court, without a-jury, before Bacon, J„ who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Contract upon a promissory note for $184.50, dated November 20, 1882, payable in two years from date to the order of the plaintiffs, and signed by the defendant. Writ dated April 14, 1886. Answer, a general denial. Trial in the Superior Court, without a jury, before Hammond, J., who allowed a bill of exceptions, in substance as follows: The plaintiffs proved the note, and rested their case.

<p>Petition, under the Pub. Sts. o. 49, §16, for the assessment of damages to the petitioner’s property by the laying out of Sterling Street by the city of Boston. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows :</p> <p>It appeared that nearly two years after the laying out of said street, and before this trial, but six months after a former trial, in which the jury did not agree, and fifteen months after the bringing of the petition, the city constructed a brick sidewalk on said Sterling Street, abutting on the petitioner’s land, one half the cost of which was over $200 ; and that, under the Pub. Sts. o. 50, § 20, and the city ordinances in accordance therewith, it was usual and customary for the city to assess one half of the cost of sidewalks on the abutters, but that the building of brick sidewalks was never done except on petition of the abutters, and then only when the superintendent of streets deemed it advisable and had money to do it with.</p> <p>The petitioner asked the judge to rule, that, on these facts, the amount of such probable assessment could be reckoned as an independent and substantive ground of damages sustained by the petitioner.</p> <p>The judge declined so to rule, and ruled as follows: “ It has appeared in the trial, and it is admitted, that, since the taking of the petitioner’s land, a sidewalk has been built adjoining the premises in the new street. It is also admitted, that the law imposes on the owner of the premises, namely, the petitioner, the obligation to pay one half of the cost of the sidewalk; and also that it imposes on the owner or occupants of the premises the duty of keeping the sidewalk clear from snow, so as to be in this respect in a proper condition for travel; and evidence has been introduced tending to show, as it is claimed, the cost of the sidewalk, and also the probable cost yearly of keeping the sidewalk clear from snow. On the other hand, it is contended by the city, and that you should be satisfied on the evidence, that the work of keeping the snow from the sidewalk along such premises as these are shown to be is in fact usually done by the tenant and occupants, and involves no expense to the landlord or owner. All these questions of fact on both sides are for your consideration. But your verdict must have reference to the condition of things as they were at the time of the taking, and neither the owner’s share of the cost of building the sidewalk, nor the expense, if the facts are as claimed by him, of keeping it clear from snow, can be laid before you and considered by you as in themselves substantive and independent elements or grounds of damage ; but if you find as a fact that there was at the time of the taking of the petitioner’s land, and growing out of that taking, a probability that a sidewalk would afterwards be built, involving expense to the owner, either in the erection or care of it, and that such probability affected the market value of his remaining premises, whether favorably or unfavorably, you will give it such force and influence in making up your verdict as you think it ought to have; and the evidence which has been laid before you on the subject of the sidewalk and the expenses it involves, or is likely to involve, to the petitioner, is only competent for you to consider in the manner and with the limitations here stated.”</p> <p>The jury returned a verdict for the respondent; and the petitioner alleged exceptions.</p>

Tort, in two counts. The first count was as follows : “ And the plaintiff says, that, on or about April 1, 1884, the defendant represented to the plaintiff, that he was the treasurer and agent of the National Heat and Light Company ; that said company owned an invention or apparatus, used as an attachment to stoves, whereby petroleum or its products were used for fuel in stoves; that said apparatus or invention was of great value; that experiments had been made therewith,…

<p>Tort, for obstructing, on November 1,1883, and continuously from that time to April 17, 1886, the date of the writ, a private way leading from a county road over land of the plaintiff, and thence, along and over the land of the defendant, to a burial ground owned by the plaintiff. Answer, a general denial. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>In 1805 a tract of land was conveyed to the plaintiff, which comprised the land now occupied by a burial ground, and the ' land west of it to the county road. Over the latter parcel the road-bed of the defendant’s railroad was constructed in 1846,</p> <p>■ running north and south. At the time the railroad was built, the only roadway to the burial ground was a private way running from the county road.</p> <p>In 1849 the town of Deerfield conveyed to the defendant, by warranty deed, land described as follows: “A certain tract of land situate in said Deerfield, lying west of the enclosed part of the burying ground near the depot in said Deerfield, being all of the land of the said town there situate taken by the said railroad company according to the plan of the survey and location thereof filed in the office of the clerk of the courts for the said county of Franklin, to which said plan reference may be had for a particular description of the land hereby conveyed.”</p> <p>It appeared that there was no survey and location of the land which the defendant contended was conveyed by this deed on file in the office of the clerk of the courts for the county of Franklin, although there were two books of plans of the location of the railroad in said office, which contained the locations to within a few hundred feet of the land in question on either side. The defendant was permitted to put in evidence its private office plans of its location.</p> <p>There was evidence of a protracted controversy between the plaintiff and the defendant, extending from 1846 to the time of giving the deed in 1849, and that the money received for this deed was appropriated by vote of the town, on July 28, 1849, “ for the purpose of fencing the burying ground, removing and fitting up the hearse-house, and, so far as it will go, for grading the road leading to the Town Street cemetery,” but there was no evidence how much, if any, of said money was used for said grading.</p> <p>The plaintiff contended, among other things, that no plan of the location of the defendant’s railroad over the land of the plaintiff had ever been filed; that no land of the plaintiff had been legally taken by the defendant; that, there being no description in the deed of the land thereby intended to be conveyed, all the land the defendant could hold under said deed was what it had actually occupied; and that from 1855 to 1883 the defendant had occupied no portion of said private way.</p> <p>In 1855 Ephraim Williams and others petitioned the selectmen of Deerfield, setting forth that the road leading to the cemetery and depot was unnecessarily steep and difficult of ascent, and requesting that an alteration be made “ in the now travelled road, by carrying the same about the width of the present road to the east, and by commencing the ascent of the hill two or three rods north of the house of Arad Munn.” A town meeting was thereupon duly called, the warrant for which contained the following articles, among others: “ Article Y. To see if the town will cause the road to the Town Street cemetery to be graded, agreeable to the petition of Ephraim Williams and others. Article YI. To see if the town will raise a sum of money, and how much, for grading the road to the burying ground, and act thereon.” At this meeting the following votes were passed: “ Yoted, on article five, that the selectmen be a committee to grade the road to the burying ground agreeable to the petition of Ephraim Williams and others. Yoted, on article six, that the assessors be authorized and directed to raise a sum not exceeding one hundred and fifty dollars, for the purpose of grading the said road to the burying ground.” No other or subsequent vote of the town appeared with reference to the action of the selectmen under these votes.</p> <p>There was evidence, that in 1855, after these votes of the town, the way was changed so as to pass along the land claimed by the defendant, until it joined the old way at a point near where the old way crossed the track of the railroad.</p> <p>The defendant put in evidence a paper, signed by two of the selectmen of Deerfield, a majority of the board, and by the president of the defendant corporation, and dated May 28, 1855, as follows:</p> <p>“ Memorandum of an agreement between the inhabitants of Deerfield, of one part, by their selectmen, who are for that purpose lawfully authorized, and the Connecticut River Railroad Corporation, by D. L. Harris, their President:</p> <p>“ Whereas, the present road from the Academy Lane to the cemetery in Deerfield, beginning near the dwelling-house of Arad Munn, is inconvenient in its present location, and the said inhabitants desire to make a new road, beginning northerly of said Munn’s house and near the house of Joel Sexton, thence running up the side of the railroad embankment, and over a portion of the land taken and belonging to the said railroad corporation', and thence to the railroad track where the present road crosses the same:</p> <p>“Now therefore the said railroad corporation, willing to accommodate said inhabitants, as far as may be, hereby gives them a license to make and use said road, and to maintain the same until said corporation shall give them notice to discontinue the same, reserving to said corporation the right to give such notice at any time when they may deem it for their interest to do so. And the said inhabitants, accepting said license, hereby agree to the terms and limitations of the same which are herein expressed.”</p> <p>There was evidence that one Hoyt made a plan of the proposed new road, and that a copy of this plan was filed in the town clerk’s office of Deerfield, the certificate of filing being in the handwriting of the then clerk of Deerfield; and that Hoyt placed the stakes for the road in 1855; but there was no other evidence that he was employed by the town or its selectmen to make the plan or place the stakes; and there was no other evidence that the town had any notice of the existence of the paper of May 28, 1855; and no evidence that the town took any action thereon.</p> <p>The plaintiff contended that it had a right by prescription to the use of the way; and, to show such right, it put in evidence the petition of Williams and others, above referred to, and the votes of the town thereon ;• also a vote of the town in 1873 to build a new fence around the burial ground; and the fact that the fence was built, and the materials therefor were carted over this road. There was also evidence .that when the road was built a fence was moved back on to the railroad embankment; that the road had since 1855 been used for carrying materials to repair fences and build new ones; and that the bodies of a number of paupers had been taken over the road for burial between 1855 and 1883, in a hearse owned by the town.</p> <p>The- defendant also put in evidence tending to show that for the -proper construction of its track, and to lay another track, it was necessary to extend its embankment so as to cover part of the way in question ; that the east track was carried as near the east line of location‘as was practicable, and that the filling for the west track necessarily encroached upon the way in question, where it ran parallel to the course of the railroad.</p> <p>The defendant also put. in evidence a notice to discontinue said road, served upon the town in 1885.</p> <p>The defendant requested the judge to instruct the jury as follows: “ 1. The plaintiff has not shown such use of the way as would give it a prescriptive right to its use as claimed. 2. If a road was built in 1855 substantially in the location marked upon the Hoyt plan, and the same was in whole or in part upon the land of the railroad as shown by the copy of its location, the pliintiff could not by the use shown thereof: acquire-a right of way over said proposed way. 3. The selectmen of Deerfield had authority to accept in behalf of the town the license granted them by the paper of 1855, and all acts done under the license and all use made of the road built under it were, upon the evidence in the case, permissive, and the plaintiff’s use was not adverse, and no right of way was acquired thereby. 4. If the selectmen of Deerfield represented to the officers of the defendant corporation that they had authority from the town to enter into the contract of 1855, and if the defendant relied upon this representation and by reason thereof authorized the building of the road upon its land as provided in said contract, the plaintiff would acquire no right to the use of said way until the defendant was notified that the plaintiff was not using it by virtue of the license or permission therein contained. 5'. If the railroad company laid its second track in a reasonable and proper manner, and in so doing necessarily filled up a part of the way which before that time the town had used, it had a right so to do, and the plaintiff cannot recover. 6. If the jury find that a part only of the way built in 1855 was over a part of the way used prior thereto, and if the jury find that so much of the road as was outside of the location of the old road was built and used by permission of the defendant corporation, the plaintiff cannot recover.”</p> <p>The judge declined to instruct the jury as requested; but instructed them as follows:</p> <p>“ The first controverted point in the case is, was there a valid taking of the land occupied by the railroad as its location in 1846. There is no controversy that the taking xvas effected by filing in the office of the clerk of the courts a plan of the survey and location, if it was effected at all. There is no controversy, on the one hand, that, if such plan was filed, it did effect a valid taking, or, on the other, that, if it was not filed, no valid taking was effected. If there was a valid taking, then the property right of the plaintiff in this way was extinguished. It is not material to determine whether it was extinguished by the taking, or whether it was extinguished by the deed in 1849.</p> <p>“ If you find that the roadway was extinguished, or the plaintiff’s right in it, we then have to consider whether the plaintiff has since 1849 acquired a right of way across these premises. One of the claims of such acquisition is that it was acquired by prescription, by which is meant an open, adverse use, under a claim of right, continued' for twenty years. No evidence tending to show that this roadway was treated as a public way, that it was repaired by a highway surveyor as a public road, is admitted to show use by the town in its corporate capacity, and it could have no tendency to show such use. So far as, if introduced at all, it could show anything, it would show that the road was not a private way to this cemetery property, but would tend rather to show that it was simply a public way, which it was the surveyor’s duty to keep in repair. But the plaintiff contends that in 1855 this road was entered upon by the town, through its agents appointed for that purpose, and worked. That is such an act as would constitute an open, adverse use of this way. It would be such an act as would assume a claim of right, if nothing else appeared; but it is in evidence that a committee, appointed to enter and in behalf of the town grade the roadway in question, entered into an agreement with the defendant in which they purported to act for the plaintiff, and in which the defendant purported to give to' the plaintiff a license to enter and occupy the roadway in question. No authority is shown for the selectmen, who were the committee appointed by a vote of the town to grade the road in question, to execute such an-agreement with the defendant, and no agreement in that paper is binding upon the town in the sense that the town is to be deemed to have recognized or assented to the claim of the defendant, that it could control the roadway in question; but if the selectmen appointed to enter, as agents of the town, to grade the road in question, instead of entering under the rights of the town, obtained from the defendant corporation permission to enter and grade the road, and entered under that permission, their acts cannot be deemed the acts of the town, nor by them could any rights be acquired by the town.</p> <p>“ If it is shown that the town had notice that its committee had entered under a license from the defendant corporation, then any use made of the way in question under that license would be deemed to be a permissive use, and would not be adverse to the rights of the defendant, and would not be means of acquiring any right to use the way. If under the license, which this paper undertook to give to the town, to make and use said road and maintain the same until the defendant should give notice to discontinue the same, if the town had notice of that license, and used the way under it, it would acquire no rights by such use, whether that use was in constructing, repairing, or travelling over the way, for however long continued, until there was notice of the revocation of the license, and continuing the use under some other claim, under some other right than that derived from the license. No rights would be acquired, however long used or continued by the selectmen. They having no authority from the town to execute this paper, unless the town is shown to have had notice of it, any other acts of the town than the acts of these selectmen cannot be affected by anything in this paper.</p> <p>“ How, the defendant says that the plan referred to in this agreement was found in the custody of the town clerk of Deer-field, bearing upon it the filing of a former clerk of the town, who was clerk at the time of the execution of this license; that the committee to whom it had been given, and by whom it was executed in behalf of the town, were at the time the selectmen of the town; and that you ought fairly to find, as matter of fact, from these facts, that a portion of the agreement itself, to wit, the plan which was a part of it, was in the custody of the town and its officers connected with the acts under it, that the town in fact did have notice of the license and acted under it, and that all of its acts from that time to the time of the obstruction of the roadway.in 1883 are to be by you referred, as matter of fact, to a permission obtained in 1855 from the defendant, and are not to be deemed adverse. If you find the town did have such notice and did act upon it, or used the way under a right obtained from that paper, then it is entirely immaterial for how long; and in any event those acts of repairing or reconstructing, in 1855, that were done by the committee who executed this agreement, cannot be treated as acts of the town adverse to the rights of the defendant- corporation. The plaintiff contends that at a later period than 1855, after the construction of that way, and by other agents than the committee that executed this agreement, the town repaired the way in question, and that on other and different occasions it used the roadway to carry materials to the burial ground for the repairs of a fence enclosing it, and on one occasion the repairs involved substantially the rebuilding of it. There is also some evidence of the entire construction of a fence around the cemetery, which by some of the witnesses was said to have been done by the town, and all the materials to have been carted over this road in question; and by another of the witnesses, to have been done by contract by a contractor who assumed to do the whole, and he carted his materials over that road, and those were not carted by the town. If that was the case, the acts of the contractor are not the acts of an agent of the town, but having made a contract to rebuild or entirely construct a fence around the cemetery, getting his material there as he chooses, his use of the way would not be a use by the town. The town also contends, that for a large number of years it used this roadway in going to and from the burial ground to bury its paupers, and that, in the use of the burial ground for its own town purposes, it passed and repassed over this roadway in question. Now those were acts of a kind that would, if continuous and uninterrupted and under a claim of right in the town itself, and continued a sufficient length of time, give a right by prescription ; but it is an essential element to acquire a right by prescription that the use should be continuous. It is not sufficient if once or twice, or occasionally, during a period of twenty years, the town should pass up and down this roadway to bury its paupers. The use of the road by the town for a passageway to the burial ground for the purpose of burying paupers to the number of twelve or fourteen from 1861 to 1883 is not such an open, continuous, uninterrupted, and adverse use as would give a prescriptive right of way to the town, but it is evidence of such use, and in connection with further use may constitute such an open, continuous, uninterrupted, and adverse use; but twelve or fourteen times in twenty years would not be a sufficient continuance to constitute an open, continuous, uninterrupted, and adverse use of the way, by which a right of way was to be acquired, nor would it be evidence of such use, if it was under this permission from the defendant corporation.</p> <p>“ If you find that the town did have notice of the agreement which its committee attempted to make, although the committee had no authority to make it, and entered into the use of the way under rights that the town supposed had been acquired under it, such use would not be, in the assertion of its own rights, adverse to the rights of the defendant, and could not be the basis of acquiring such rights. You are to take all the evidence together, what the acts of repairing, the acts of hauling fence materials, the use to bury paupers, — how extensive it was. By giving you instructions in regard to the number of twelve or fourteen paupers, I do not mean to say that there is no evidence of a greater number than that. It is for you to say how many are proved to have been carried, and it is for you to say whether, taken in connection with all the use that is shown by the town in its corporate capacity, not any use which individuals may have made of it, whatever their rights or however they got them, but by the town and its agents, whether it has shown such use of the way that it can be said, as matter of fact, to be continuous, open, uninterrupted, and adverse to the rights of the defendant, for twenty years prior to November 1, 1883. If it is, then, notwithstanding the roadway had been extinguished in 1849, the town would have acquired a new right, and would be entitled to recover in this action for this obstruction.</p> <p>“ Upon one or the other of these two grounds the plaintiff must recover, if entitled to recover at all. If it shows by a fair preponderance of the whole evidence, that the original plan of the survey and location was not filed in the office of the clerk of the courts, then the original property rights of the plaintiff were never extinguished. If that was filed, they were extinguished. If the plans were filed, there is no controversy but that the limits of the taking were such as would include the place where the obstructions complained of were placed. That is, there is no controversy that the second track and the extending of the embankment are within the location acquired by the original taking, if there ever was a valid original taking. Now, if you find, upon a fair preponderance of the evidence, that there was no valid original taking, then you are to find for the plaintiff. If you do not find that, but find there was a valid taking, and that the property rights of the plaintiff were extinguished either in 1846 or 1849, it is entirely immaterial which, then you must find for the defendant, unless you find that after 1849 there was twenty years of open, adverse use of this roadway by the town in its corporate capacity. If that is established, then the plaintiff is entitled to recover.”</p> <p>The jury returned a verdict for the plaintiff ; and the defendant alleged exceptions to the refusal to give the instructions requested.</p>

<p>A corporation organized under the laws of another State, which has obtained a judgment in that State against a corporation also organized under the laws of that State, may maintain a bill in equity in this Commonwealth against the officers of tHe debtor corporation, for discovery of the names of its stockholders and of the number of shares held by each, if the officers reside in this Commonwealth and the books of the corporation are kept here, in order, by a suit in the other State, to enforce a personal liability imposed upon such stockholders by the laws of' that State.</p>

<p>In an action of replevin of a machine, it was admitted that the machine formerly belonged to the plaintiff, a corporation, and was delivered by it to A. on July 17. The defendant, who was the assignee in insolvency of A., contended that the machine was delivered on an absolute sale to A. under an order sent to the plaintiff’s place of business on July 6. The plaintiff contended that the delivery was under an order, by which the machine was to remain the property of the plaintiff, received from A. at his place of business on July 13 by B., an agent of the plaintiff to solicit orders, and communicated by him the next day to C., the plaintiff’s president, who had authority to accept orders and make sales. B. and 0. were allowed to testify as to the communication of A.’s offer of July 13 by B. to C., for the purpose of showing that the machine was delivered under the latter order. Held, that the defendant had no ground of exception to the admission of this evidence.</p> <p>In an action of replevin of a machine, delivered by the plaintiff to the defendant, if the evidence is conflicting whether the plaintiff delivered the machine on an absolute sale on four months’ credit under an order of a certain date, or on a conditional sale, by which the machine was to remain the property of the plaintiff until paid for, under an order of a later date, it is competent for the plaintiff to show that the defendant's reputation for financial ability was poor.</p>

<p>In an action against a city to recover the amount of a betterment tax assessed for improvements on a street in the city, and paid under protest, the orders passed by the city council for the improvements cannot be impeached for alleged defects in the notices preceding them; but sucli defects can be availed of by certiorari only.</p> <p>It is no objection to the validity of a betterment tax assessed for improvements on a street in a city, that the adjudication of the board of aldermen is only that the estates mentioned “have been benefited,” and does not declare that they receive any benefit beyond the general advantage to all real estate in the city ; nor is it any objection that the record does not show the actual expense of the improvements, if the actual expense was more than double the amount of the assessment, and the record discloses a liability for land damages, fixed by lapse of time, of a sum which is double the amount of the assessment.</p> <p>In an action against a city to recover the amount of a betterment tax assessed for improvements on a street in the city, and paid under protest, if the adjudication of the board of aldermen is that the estates named have been benefited “ by the widening,” and the sums assessed are declared not to exceed one half the amount of the adjudged benefit to the estates “by the said widening,” as they did not in fact, the plaintiff is not entitled to a ruling that any assessment upon his land of a share of the expense of grading was void, the expenses apart from grading'being double the amount of the assessment, and there being nothing to show that the assessment took grading into account.</p> <p>It is no -objection to the validity of orders for improvements on a street in a city, tliat they were passed first by the board of aldermen and then by the common council in concurrence, and not in joint convention, the city charter providing that the- board of "aldermen and the common council “in their joint capacity, shall be denominated the city council,” and requiring all petitions to be first acted on by the mayor and aldermen, and giving an appeal to “any person aggrieved by any proceedings of the mayor and aldermen or of the city council under this provision.”</p>

<p>If a person, who is charged with keeping intoxicating liquors for sale unlawfully, relies upon a license authorizing him to sell such liquors, dated before the day of the alleged offence, the government may show that the bond required by the Pub. Sts. c. 100, was not filed, the license fee was not paid by the defendant, and the license was not issued, until after the day of the alleged offence ; and such license affords no justification for the defendant’s acts.</p>

Complaint on the St. of 1885, e. 352, § 8, to the Municipal Court of the city of Boston, alleging that the defendant, on October 13, 1886, had in his possession one pint of skimmed milk, containing less than nine and three tenths per cent of milk solids, exclusive of fat, with intent unlawfully to sell the same.

<p>Complaint on the Pub. Sts. e. 98, § 2, alleging that the defendant, at Boston, on November 21, 1886, that day being the Lord’s day, “ did keep open bis shop there situate, and numbered fifty-one in Salem Street, for the purpose of doing business therein, the- same not being then and there works of necessity or charity.” Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence for the government tending to show that the defendant was the proprietor of a meat-shop, at No. 51 Salem Street, in Boston; that he resided in the rear part of said place; that on Sunday, November 21, 1886, at about eight o’clock in the morning, the defendant’s shop was open, and the defendant cut and furnished certain meat to women and children, who went into and came out of the shop; that he was seen to take something, supposed to be money, from the persons to whom meat was delivered. It further appeared from the government witnesses, that the defendant was a Hebrew; that the persons who got meat there on this Sunday morning were Hebrews; and that the shop was not open after ten o’clock in the forenoon of that day.</p> <p>The defendant offered evidence that he was a Hebrew, a preacher in the Hebrew synagogue, and especially designated and appointed by the High Rabbi to slaughter and prepare meat for food after the law and manner of the religion of the Hebrew people; that he conscientiously believed that the seventh day of the week ought to be observed as the Sabbath, and that he actually refrained from secular business on that day; that he did not, on account of his religious belief, supply meat on Saturday; that the people of his synagogue could not obtain the same on that day; that he did not on this Sunday keep open his place to do business with the public; that the shop door was closed, but not locked ; that this building in which he lived was open on the morning in question for the sole purpose of supplying necessary meat prepared and furnished by him in compliance with the law and manner of the religion of the Hebrew people, and was supplied to Hebrews, members of his congregation, and to no others. The judge excluded this evidence, and ruled that it was immaterial for what purpose the shop was open ; that it was no defence under this complaint to show that the defendant’s place was necessarily open; and that the question of necessity or charity was not open to the defendant."</p> <p>The defendant asked the judge to rule as follows: “1. Keeping a shop open on Sunday morning for the sole purpose of supplying necessary meat to Hebrews, who, on account of their religious belief, are obliged to obtain the same on Sunday morning prepared in. a special manner, is not a violation of the Sunday law. 2. If the jury find that the defendant, a preacher in the Hebrew synagogue, and specially designated to slaughter and prepare meat for food after the law and manner of the religion of the Hebrew people, had the place where he lives open on Sunday morning to supply necessary food to members of his congregation, and to no others, the jury must bring in a verdict of not guilty. 3. If the defendant did not keep open his place to do business with the public, but to supply meat, in accordance and in compliance with the- religion of the Hebrews, to his own people only, he is not guilty of violating the Sunday law.” The judge declined so to rule.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>A person who has the charge and control of a shop, and carries on the business thereof, although both the shop and the business are owned by another, may be convicted of keeping open the shop on the Lord’s day, in violation of the Pub. Sts. c, 98, § 2; and, in the complaint for such violation, the shop is properly described as his shop.</p>

<p>An action for false imprisonment will lie for the misuse or abuse of legal process after it has issued, beyond the mere fact of arrest and detention.</p> <p>In an action by A. against B. for false imprisonment and the abuse of legal process, there was evidence that A. had formerly been the treasurer of a railroad corporation, and, as such, had given a bond with B. as surety; that the corporation brought an action upon the bond against A. and B., for money wrongfully ■ appropriated by A. to his own use in payment of a claim for services, without the approval of the board of directors; that the corporation recovered judgment; that B. procured an indictment to be found against A. for the purpose of compelling him to pay the debt, on which he was arrested and held until- he made a settlement. A. offered to show that, at the trial of the action on the bond, the defendants offered the testimony of a majority of the directors who were present at the meeting where his claim was considered, to show that they understood that the claim was to be paid in full, which evidence was excluded; and that, when the case came before the Supreme Court, it was submitted on a brief by B., who acted as counsel; and that in his brief he assumed as a fact the existence of the assent of a majority of the directors. Held, that the evidence as to the brief was inadmissible to show that B. knew the fact to be as therein assumed.</p>

Tort, for breaking and entering the plaintiff’s close in Boston, and cutting down a fence and posts thereon. Writ dated September 16, 1885. The answer alleged that the defendant had a right of way over the land of the plaintiff, four feet in .width, and that the fence and posts taken down obstructed said passageway.

<p>An insurance company issued a policy of insurance on the life of A., payable to him as soon as the premiums, together with such other sums as he should pay, should amount to the sum insured. In case of his prior death the company agreed with A. to pay the sum insured to his mother. The policy further provided that, after the payment of two full premiums, it should not lapse. The intention of A. was to make the policy for the benefit of his mother, who furnished him with money to pay part of the first premium. The mother never had possession of the policy. A. subsequently married, and, without his mother’s assent, surrendered the policy to the company, and took out a new one for the same amount payable to his wife. This policy contained the statement that it was a continuation of the first policy. A. died before his payments amounted to the sum insured. Held, that the first policy was a settlement in trust for the benefit of the mother, which A. could not revoke; and that the mother was entitled to the proceeds. Held, also, that the company was not liable on the second policy.</p>

<p>A judgment was obtained in another' State in favor of A. for the benefit of B., A. having no beneficial interest in it. A. died soon after, and his widow. C.. was appointed his executrix, and assigned the judgment to B. B. afterwards brought an action in the Superior Court on the judgment in the name of A. Held, that the Superior Court had authority to allow an amendment of the writ, substituting the name of C. as executrix for that of A., and stating that the action was brought for the benefit of B.</p>

<p>If the alleged mortgagee of personal property is summoned, under the Pub. Sts. c. 161, § 79, as trustee of the alleged mortgagor in an action against the latter in which the property is attached, under the Pub. Sts. c. 161, §§ 69, 70, and the trustee’s answer disclaims all right as mortgagee, and shows that there is no mortgage and no debt, the discharge of the trustee by the plaintiff does not dissolve the attachment.</p>

Contract upon a promissory note for $2000, dated July 6, 1872, payable to the plaintiff in one year from date, signed, in the presence of a witness, by Susan M. Van Doren, containing indorsements of interest paid, and having the defendant’s name on the back, and also under a guaranty of the payment of the note dated July 8, 1873. The declaration contained three counts: the first against the defendant as an indorser; the second, as a guarantor ; .and the third, as a maker.

<p>B., who was a domestic servant and had no means except her wages, hearing that her father, who had been a stranger to his family for years, had died in another State, leaving property there, consulted A., an attorney at law, in regard to recovering it, and gave him a power of attorney to collect her share of it. A. orally agreed with her to take charge of her case upon the terms that she should furnish money for all actual expenses, and that, in the event of success, he should charge more for his services than if he was sure of his pay in the outset ; and A. rendered services under this agreement. Subsequently, a written agreement was signed by B., which recited that she had retained A. and authorized him to retain counsel in the other State, and that “ said counsel and attorney are to depend upon the contingency of success for the fees for all services rendered ” in the case; agreed that A. and the counsel so employed “ shall in view of the uncertainty of the result in their payment be entitled to very large and liberal fees, in no event to exceed fifty per cent of the amount collected ly them.” Afterwards B., without notice to A., employed other counsel, and, on trial, recovered a certain sum. Held, in an action by A. against B. to recover for his services, that the contract under which they were rendered was not void for champerty or maintenance.</p>

Bill in equity, filed August 22, 1885, against Honora Werner and Charles O. Hunter, to restrain the erection of a building in violation of the provisions of a deed, and to compel its removal.

<p>A. brought an action against a corporation, in which its property was attached, and a bond given to dissolve the attachment. After A. had obtained a verdict in his favor, the sureties on the bond brought a bill in equity alleging the above facts, and that A., while treasurer, gave a false certificate that the capital stock of the corporation had all been paid in, and was liable, under the Pub. Sts. c. 106, § 60, for the debts of the corporation, and that the corporation was insolvent and had no property which could be taken on execution. The bill sought to restrain A. from obtaining judgment against the corporation, and from suing upon the bond. Held, on demurrer, that the bill could not be maintained.</p>

<p>After an action had been tried in a municipal court upon the merits, and a finding made for the plaintiff in damages, it was continued for judgment to await the disposition of another action. After the disposition of that action, the plaintiff filed a motion “ to have judgment entered in the above-entitled action,” on which was indorsed, signed by the defendant’s attorney, “ It is agreed that this motion may be filed and allowed.” Judgment was entered, and the defendant appealed to the Superior Court. In that court, the plaintiff moved that the appeal be dismissed, on the ground that the judgment appealed from was rendered by the defendant’s consent. The court dismissed the appeal. Held, that the judgment of the municipal court was not such a judgment by the consent of the defendant that he was not aggrieved by it and could not appeal from it.</p>

<p>Tort for personal injuries sustained by the plaintiff by the fall of a portion of one of the porcelain shades of a lamp fixed in the upper part of a car of the defendant, in which the plaintiff was a passenger, alleged to have been caused by the defendant's negligence.</p> <p>Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The whole of the evidence touching the question of the defendant’s negligence was as follows: The plaintiff was a passenger on the train, and was a minor, about four years of age. The lady who accompanied and had charge of her testified that they took the train leaving Boston in the afternoon, on April 9, 1885, to go to Faneuil; that the lamps in the cars were not lighted; that before reaching Columbus Avenue station, which is the first station out of Boston, and two or three minutes’ ride in the cars from it, she heard a crash over her head, and, an instant after-wards, several pieces of the porcelain shade fell from the upper part of the car into her lap; and that one struck the plaintiff on the face, and inflicted the injuries complained of. Another witness testified that she saw a piece of the shade falling, and saw it strike the child; that it came from the porcelain shade of a lamp directly overhead, and in the top of the car, which was a fixture in the car. A third witness testified that she saw pieces of the shade on the floor of the car, and saw the conductor take down the remaining portion of the porcelain shade, which he did by standing with his feet on the two opposite seats and reaching up to the lamp fixture in the top of the car. It appeared that, just after the accident, the conductor took the names of several witnesses to the accident.</p> <p>The defendant rested its case, and upon this evidence requested the judge to rule that, the plaintiff could not recover. The judge refused so to rule; and ruled that, upon the evidence, the question of the defendant’s negligence was a question of fact for the jury.</p> <p>The jury returned a verdict for the plaintiff in the sum of $5000; and the defendant alleged exceptions.</p>

<p>Under the St. of 1871, c. 239, (Pub. Sts. c. 77, § 16,) a notice to an indorser of a promissory note of its non-payment, duly deposited, postage prepaid, in the post-office in the town in which he lives, the direction on the envelope in which it is enclosed containing only his name and that of the town, is sufficient, although he lives on a street which has a name, if the houses on the street are not numbered, and there is no postal delivery by carriers; and the facts that he did not receive the notice, and that another person of the same name lived in the town who did not receive it, are immaterial.</p>

<p>Contract upon an order for $600, dated March 13, 1882, drawn upon the defendant by John Campbell in favor of the plaintiff, and payable out of the “ last payment.”</p> <p>Trial in the Superior Court, without a jury, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>When said order was drawn, Campbell was building a house for the defendant, and was indebted to the plaintiff for materials used in the construction of the house. After the order was drawn, Campbell brought suit against "Russell, claiming a balance due him on account of said building. His answer filed in that suit, among other defences, set up the order now in suit, with other orders drawn by Campbell, alleged that he had “promised to pay them out of any funds of the plaintiff in his hands,” and contended that “ the ' amount of said orders should be deducted from the plaintiff’s claim.” Russell testified that he had never seen the answer, and did not know its contents.</p> <p>The plaintiff offered in evidence the answer'of Russell above mentioned, for the purpose of showing a conditional acceptance of said order. This evidence was excluded.</p> <p>The plaintiff also offered to show an agreement made in open court, at the trial of said action of Campbell against Russell, by the respective attorneys of Campbell and Russell, that the amount of the Johnson order with others should be deducted from any verdict recovered in favor of Campbell, and judgment entered for the remainder; but it did not appear that Russell knew anything about said agreement, this action not having been brought at that time. This was excluded.</p> <p>The plaintiff also offered in evidence the judgment in said action of Campbell against Russell, for the purpose of showing that the verdict therein against Russell was sufficient in amount to cover this and the other orders; and that execution issued for an amount which was more than enough to cover the present order, and was returned satisfied in full. This was also excluded.</p> <p>No other evidence was offered by either party as to whether or not anything was due from the defendant to Campbell.</p> <p>The judge found specially that nothing was due from the defendant to Campbell, and found generally for the defendant. The plaintiff alleged exceptions.</p>

<p>If a writ of replevin in favor of A. is placed for service in the hands of a constable, who opens a storehouse and takes the goods described in the writ, and does not prevent an agent of A., who accompanies him, from taking away certain goods of B. which are stored there, claiming a right to do so, and B. thereupon brings an action against the officer for allowing B.’s goods to be taken, recovers judgment, which is satisfied, and then executes a written instrument assigning to the officer B.’s judgment against him, together with any and all claim and right of action B. might have against A. for the goods, and authorizing the officer to sue for and recover the same of A. for his own use, B.’s claim is extinguished by the satisfaction of his judgment against the officer, and the officer cannot maintain an action in B.’s name against A.</p> <p>A writ of replevin in favor of A..was placed for service in the hands of a constable,' who opened a storehouse and took the goods described in the writ. The officer was accompanied by B., as A.’s agent, who had the mortgage under which A. claimed the goods which were to be replevied, and discovered that the description in it Covered property not mentioned in the writ. B. also found in the store, mingled with the goods to be replevied, numerous other articles which he believed to be, and told the officer were, the same covered by the mortgage. Upon his statement and representation that the mortgage covered all the goods in the store, the officer allowed B. to remove said other property, as he claimed a right to do. A. received the property so removed, and ratified the acts of B. in relation thereto. C., the owner of the goods so taken, brought an action against the officer for allowing them to be taken, and recovered judgment, which was satisfied by the officer. Held, that the parties were not in pari delicto; and that the officer could maintain an action against A. for the amount of the judgment so paid by him.</p>

<p>A petition to revise a decree of the Probate Court, allowing a will, which decree has been affirmed, upon appeal, by this court, must be heard in the first instance in the Probate Court.</p> <p>If a petition to the Probate Court, to reopen a decree made by that court and affirmed by this court, is wrongly dismissed for want of jurisdiction, this court will affirm the decree, if, for any reason, the petition ought to be dismissed.</p> <p>A petition to revise a decree of the Probate Court, allowing a will, filed after an unexplained delay of sixteen years, seeking to re-open only matters which were open and tried in the Probate Court before the decree allowing the will, and all of which were raised in the reasons for appealing from the decree filed in this court, which affirmed the decree, and not alleging that there is any newly discovered evidence upon the issues which it seeks to retry, is rightly dismissed.</p>

Contract, upon an account annexed, for money had and received. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

<p>The indorser of a promissory note, who had a place of business in the city where the note was dated, failed in business, and made an assignment for the benefit of his creditors, under which the assignee had authority to carry on the business for completing the manufacture of stock and materials on hand, and otherwise so far as should be necessary for the purposes of the trust. The assignee continued the business, until long after the note became due, at the place of business of the indorser, where the sign with his name remained, and retained the indorser’s box in the post-office, which continued to be used exclusively for the business, and in which letters addressed to the indorser were placed, and taken out by the assignee. The indorser left the Commonwealth after the assignment, and did not return until after the note became due, but retained his domicil in a town in the Commonwealth, where his family resided. He gave no instructions in regard to forwarding his mail from the city where his former place of business was, although he had counsel there who was to communicate to him any matter of importance affecting his interest. The holder of the note duly sent notice of its non-payment by mail .to the indorser, addressed to him„ in said city, and it was received at his former place of business; but the indorser did not receive it, in consequence of his counsel’s telling the assignee that he had no duty in regard to such notices. The holder of the note, when he took it, knew where the indorser’s place of business was, and he had no notice or knowledge of the discontinuance of the business, or of the removal of the indorser from the place of business, except what might be inferred from knowledge of the failure and of the assignment; and he believed, at the time the notice of non-payment was given, that the indorser did business and resided in said city. Held, that on these facts it might properly be found that due diligence was used in giving the notice.</p>

<p>Before the enactment of the St. of 1886, c. 140, authorizing such an action, a street railway corporation was not liable to an action of tort for the loss, by reason of its negligence or that of its servants, of the life of a person, whether a passenger or not.</p>

<p>After a criminal complaint has been entered in the Superior Court, upon appeal, the entry of a nolle prosequi by the prosecuting officer, by the procurement of tlie defendant’s attorney, his discharge not being ordered by the court, is not such a termination of the prosecution as will enable him to maintain an action against the complainant for malicious prosecution.</p> <p>If a person does nothing more than to make a complaint to a magistrate against another for an offence, and the latter is arrested under a warrant duly issued by the magistrate, who has jurisdiction of the subject matter and of the party, the complainant is not liable to an action by the arrested person for assault and false imprisonment, although the complaint is defective.</p>

Contract, for injury to a quantity of apples stored with the defendant.

<p>Contbact to recover $1000, alleged to be due the plaintiff as- the beneficiary of John W. Morey, deceased, who during his lifetime was a member of the defendant corporation. Trial in the Superior Court, before Knowlton, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Writ of entry to recover a parcel of land in that part of Boston formerly Brighton. Plea, nul disseisin. At the trial in the Superior Court, before Knowlton, J., the demandant claimed title under a levy of an execution, the land having been specially attached as the property of the tenant’s husband, standing in her name. The tenant claimed title under a deed from her husband, made shortly before their marriage, which deed the demandant contended was fraudulent and void as against the husband’s creditors. The jury returned a verdict for the demandant; and the tenant alleged exceptions to the admission of certain evidence, the nature of which appears in the opinion.</p>

<p>Tort, for breaking and entering the plaintiff’s close, in Bourne, and catching and carrying away from the waters within the plaintiff’s premises ten ‘trout. Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:</p> <p>It was agreed that, on April 8, 1886, the defendant landed upon the plaintiff’s flats, having come thereto by water, and landing from his boat. Thereupon, the tide being out, the defendant walked along the narrow strip of land or soil between high-water mark and low-water mark, in part consisting of shingle and gravel, and also in part covered with sedge grass, for the purpose of fishing; and he did, while so standing or walking, fish; that he was forbidden by the plaintiff, but continued so to stand, walk, and fish, claiming the right to do so ; that the waters facing said shore are the open, navigable, tidal waters of Buzzard’s Bay; that the damage done to the plaintiff’s close was small; and that the defendant walked, at times, in fishing as aforesaid, within one hundred rods of high-water mark, but he at no time went above high-water mark.</p> <p>On these facts the judge found for the plaintiff; and the defendant alleged exceptions.</p>

<p>A testator left a widow, and no children except an adopted daughter, E. By his will, he gave all his property to a trustee, in trust to pay all the income to his wife during her life, and also gave, at her death, pecuniary legacies to certain of his and her nephews and nieces, describing them as “my nephews and nieces; ” and then provided as follows: “ After the payment of the foregoing legacies, I give, bequeath, and devise all the remainder of my estate to my adopted daughter, E., wife of H., in her own right; but if the said E. shall die without issue before the decease of my said wife, then I give, bequeath, and devise said remainder to the heirs at law of ,my said wife.” E. died without issue. The testator’s widow died subsequently, having had no children of her body, but having adopted H., who survived her. Held, that, under the Pub. Sts. c. 148, §§ 7, 8, H. did not take under the devise to the " heirs at law " of the testator’s wife.</p>

<p>In an action for personal injuries sustained by the plaintiff by falling into a coal-hole owned by the defendant, who was the owner of the building, on the issue whether the plaintiff’s evidence showed that the cover of the coal-hole was insufficiently guarded, a witness! for the plaintiff testified that he saw the cover immediately after the accident and there was no weight attached to the under side of it; and that, on the night before the accident, he stepped on the cover, and it came off. On cross-examination, he testified that, a month before, he saw, while at a certain place in the cellar, a weight attached to the cover. There was other evidence for the plaintiff that the cover could not be seen from this place in the cellar. Held, that the issue should have been submitted to the jury.</p>

<p>Certain shares of stock in a corporation were pledged as collateral security for the payment of a promissory note, with power to sell the same at public or private sale. After the maturity of the note, the payee frequently wrote to the maker, stating that he must sell the stock unless something was paid on the note. About a year and a half after the maturity of the note, the payee wrote to the maker that he should sell the stock on a certain day, which was seven days later. The maker made no reply to this letter, and on the day named the payee sold the stock to A., and applied the proceeds in part payment of ' the note. The old certificate was sent to the maker, who was the treasurer of +he corporation issuing the stock, and he, as treasurer, made the transfer on the books of the corporation, and issued a new certificate to A. About two years afterwards, the corporation sold out to another company of which the maker was also treasurer, and he, as treasurer, issued new stock to A. in exchange for the old stock. The maker did not, at the time of these transactions, make any objection to the sale, or to the notice given to him, nor at any time before the action was brought, which was seven years after the sale. Held, that these facts would warrant a finding that the maker had waived any further notice of the sale than he had received.</p> <p>A policy of life insurance was pledged as collateral security for the payment of a promissory note, with power to sell the same at public or private sale. The maker of the note, having been pressed for payment, wrote to the payee, fifteen months after the "maturity of the note, that he could pay him a certain sum for the policy. The payee replied, that he had been offered a larger sum for it, and, unless the maker could pay him that amount, he should sell it. The maker made no reply, and, seven months later, the payee sold the policy for its value at that time, and notified the maker of the sale. He never made any objection or complaint for over seven years. Held, that these facts would warrant a finding that the maker had waived any further notice than he had received.</p> <p>In an action upon a promissory note, payable within a certain time after date “ with ten per cent annual interest," in which the plaintiff recovers judgment, if there are two partial payments on the note after its maturity, interest is to be computed on the principal at the rate of ten per cent to the time of the first partial payment, which is less than the interest due; and is then to be computed on the principal to the time of the next payment, and both payments, which together are more than the interest then due and enough to reduce the principal below the original amount, are to be subtracted; and interest is then computed on the balance to the date of the judgment.</p>

<p>A. bought dne hundred shares of stock in a corporation through B., who acted for her as a friend, without pay. One month later, B. ordered a broker to buy one hundred shares more on sixty days’ credit, and deposited the first purchased shares as security. Ten days 'afterwards, A. asked B. how she should know, if anything happened to him, that she had any stock. He said he would give her something to show her title, and wrote, signed, and delivered to her the following order, addressed to the broker: “ The 100 shares of stock you purchased for me ” on a day named, “ for which you have been paid, and the 100 shares you purchased for me” on a later day named, “buyer 60, receiving from me the one hundred shares of stock as collateral security, were bought by me for A. Please deliver the stock to her, if she calls for it at any time.” Six months afterwards, A. ordered B. to sell her stock, supposing that she had the original shares; and a hundred shares regarded as hers by B. were sold at a loss. A. subsequently attempted to repudiate the transaction set forth in the above order, and brought an action against B. for the conversion of the first one hundred shares of stock. Held, that A. must be presumed to have understood the contents of the written order; that her silence ratified the purchase, and consequently the pledge; and that the action could not be maintained.</p>

<p>If a statute authorizing a town to take land for waterworks requires the town to file in the registry of deeds a description of the land so taken, and provides a remedy for a person injured by the taking, a description filed by the town, which includes land taken on which there is a dam and a mill privilege capable of flowing adjacent-land, must include the land flowed, in order to enable the town, in an action of tort by the owner of the land flowed, to justify under the statute, and confine such owner to his statutory remedy.</p> <p>If, under a statute authorizing a town to take land for waterworks, and requiring the town to file in the registry of deeds a description of the land so taken, the town takes land on which there is a dam and a mill privilege, attached to which is a prescriptive right to flow certain meadows to a certain height, and describes as taken “all the water rights and other privileges and appurtenances ” of the land taken, this is a taking and description only of the right to flow to the point to which the owner of the prescriptive right was entitled to flow; and, in an action of tort by the owner of the land flowed against the town, a special finding by the jury that the town has flowed to a greater extent than the mill owner had a right to before the taking by the town establishes the right of action.</p>

Petition for a writ of mandamus to compel the respondents to issue an order for a jury to revise an assessment of damages for land taken by the city of Somerville for a way, under the St. of 1871, c. 182. Hearing before Holmes, J., who reported the case for the consideration of the full court. The facts appear in the opinion.

Appeal, by the trustees under the will of John Hooper, from a decree of the Probate Court, disallowing two items in a supplemental account of the appellants. Hearing before Crardner, J., who reported for the consideration of the full court the following case. John Hooper died in 1854, leaving a widow and six children, among the latter, Dwight B. Hooper.

Contract for breach of an agreement to convey to the plaintiff certain real estate in Stoneliam. Answer, the statute of frauds.

<p>Petition to the Superior Court for a jury to assess the damages sustained by the petitioner by the taking of four parcels of land, on May 25, 1883, by the board of park commissioners of the city of Boston, under the St. of 1875, c. 185. At the trial, before Brigham, C. J., the jury returned a verdict for the petitioner ; and the respondent alleged exceptions, which appear in the opinion.</p>

Contract, by an attorney at law, for professional services. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows : The charges made for the plaintiff’s services are reasonable, and the services were, in fact, rendered at the request of E. L. Goodwin, Frederick Knapp, J. A. Hayford, and others, then the standing committee under the by-laws of the defendant society, in the suit…

Tort for a nuisance, namely, the maintenance and use of a steam-engine, boilers, and machinery for generating electricity for lighting purposes at the defendant’s works in Lowell, and-within five hundred feet of the plaintiff’s dwelling-house. Writ dated November 22, 1888. The defendant justified under a license from the mayor and aldermen of Lowell.

<p>Tobt, for personal injuries sustained, through the alleged negligence of the defendants in leaving open and unguarded a hoistway in a building in Boston, at the corner of Franklin Street and Arch Street.</p> <p>Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was in the rear of the building in which the accident happened, and at the corner nearest to Franklin Street, a hoistway running from the basement to the top story. It was partitioned off from the various rooms through which it passed, but could be communicated with from each floor by means of doors opening from the hoistway into the several rooms, which when closed were secured by bolts slipping into sockets attached to the wood-work of these partitions. Upon opening one of these doors, the interior of the hoistway was exposed. When not in use, the hoistway upon each floor could also be closed by two trap doors, which met together in the middle of the hoistway on a line perpendicular to the entrance to the hoistway, but, when the hoistway was in use, the trap doors could not be closed. Between the threshold of the entrance door to the hoistway and the trap doors was a planked space of one and a half feet. In the roof at the top of the hoistway there was a dram over which revolved a rope and chain of sufficient length to be lowered, when required, to the basement'; there was also on each floor, connected with the entrance to the hoist-way, a movable pole or bar with sockets fitted thereto, which bar could be put in position as a guard or barrier; but, when the trap doors were shut, there was no occasion for the bar, and it was then sometimes in position, and sometimes left in the hoistway, and sometimes left standing in or near the hoistway, according as the parties had occasion to go upon the trap doors or not. Sometimes when the trap doors were open, the bar was also out of position. When the trap doors were down, they were upon a level with their respective floors; and when the entrance doors to the hoistway were open, they were capable of being used in connection with the rest of the story.</p> <p>The defendants had a lease from the owner of the building, dated March 1,1880, of “ the first floor and basement beneath ” in the building, which lease contained this clause: “The hoist-way is to be enjoyed and used in common with all the other tenants in the building.”</p> <p>The plaintiff had a lease from the owner of “all the chambers ” in the building, “ over the store on the street floor; .... to have and to hold the said chambers, premises, hereby leased,” etc. The lease also gave him “ the use of the hoistway, in common with the owner or occupants of the store and floors below.” The lease also contained this clause: “ And the lessee further promises that he will keep whole and in good condition all the window and other glass on the premises.” The plaintiff occupied only the second story of the building, having sublet the third and fourth stories.</p> <p>It appeared that, in fact, for many years, the plaintiff had used the trap doors, when in position, for the purpose of unloading boxes of merchandise, and that skins had been beaten there; that inside the hoistway, and opposite to the entrance of it, there was upon the plaintiff’s story a window which could only be reached by passing over the trap doors when in position; and that this window was in summer time frequently raised as a means of ventilation for the entire floor, and the plaintiff also was, and for a long time had been, in the habit of beating and shaking mats from this window. It did not appear that any of these uses to which the plaintiff thus put the hoistway and the trap doors when in position were ever objected to, or known by, the owner of the building.</p> <p>The method of operating the hoistway was as follows: If the defendants desired to transfer merchandise from the street through the hoistway to their basement, which was several feet below the level of the street, their boy would first open a door, the bottom part of which was on a level with the street, and extended above the level of their trap doors, and led from the hoistway to the street; and would then lift up the trap doors, which were on a level with their store floor, would then go up the stairs to the top of the building, stopping at each floor as he went up, and, if found closed, opening the left-hand trap door on each floor, leaving the right-hand trap door still in position. Arriving at the top, he would unroll the chain and rope from the drum, and lower it to the defendants’ floor, whence it would be taken into the street and attached to the merchandise there standing, which would then be hoisted and lowered into the defendants’ basement. During this operation both the trap doors would remain open upon the defendants’ floor, but only one (the left-hand trap door) would be opened upon the second and upper floors.</p> <p>The defendants’ boy testified, that, if he found the bar in position, he left it there, and if it was not in position he did not touch it nor even look for it; that he knew that it was dangerous to leave the trap door up without such bar, and knew that the bar was there, and knew for what it was intended; but nevertheless had never, either on the day of the accident or before, taken down or put up such bar. when opening the trap door upon the plaintiff’s or any of the upper floors. The defendant Todd also testified, that he knew it was dangerous to leave' the trap door up, but that he never instructed his boy to put up the bar when leaving the trap door up, either on the day of the accident or at any other time, and never gave him any instructions about the bar.</p> <p>The defendants’ boy also testified that he was thus in the habit of opening trap doors on the floor of the plaintiff’s story and upper stories at all times of the day, without giving any notice to the plaintiff or other occupants of such floor other than such as was given by going through the premises for the purpose, and it appeared that in fact on the day of the accident, just before the accident happened, he had thus opened the trap door on the plaintiff’s floor, without giving any other notice than such passage through his floor, to the plaintiff.</p> <p>As bearing upon this use of the hoistway, there was evidence tending to show that, in 1881, one Goss, the superintendent of the occupant of the upper floor, made an agreement with the plaintiff and the defendants that each of the tenants of the building who used the hoistway, rope, and chain should hoist the same, after using them, to the drum, and that each occupant should take care of and shut his own trap doors at night, if the trap doors had not previously been shut, and that no tenant should have any responsibility for the closing of trap doors on any floor but his own; that the occupants and their employees ever after acted upon this agreement, and that there was no agreement, understanding, or practice as to placing any bar across the doors on either floor. The defendants, however, testified, that, with the exception of putting up the chain, there was after the agreement no change in the method of operating the hoistway from what it was before the agreement.</p> <p>All this evidence, however, was denied by the plaintiff’s testimony, who offered evidence tending to show that there was in the spring of 1881 an arrangement made between him and the defendants, by which any person who had any occasion to use the hoistway at any time should himself open the trap doors, and should, when he was through with the hoistway, himself close the trap doors ; and the plaintiff also offered evidence tending to show that, for a long timé prior to the accident, that in fact had been the course pursued by the defendants, by himself, and by other occupants of the building; namely, that the person using the hoistway should open the trap door, put up the bar, shut and bolt the door, and, after getting through using it, the same person would pull up the chain and shut the trap door.</p> <p>Some of the plaintiff’s witnesses testified that the trap doors were frequently left open, and that it was the practice of the plaintiff's men to close the trap doors of the plaintiff’s floor, if open, the last thing at close of work; but it was contended by the plaintiff, and there was evidence on the part of the plaintiff tending to show, that this was not in accordance with any agreement made between the parties, but was doné as a matter of general precaution at night.</p> <p>About noon on January 3, 1884, the plaintiff placed in the right-hand corner of the hoistway, which was cooler than the rest of the premises on that story, a basket of chickens, some of which he was intending to take home with him at night. The basket rested partly on the right-hand trap door and partly on the wood-work separating the trap door from the wall of the hoistway. Both trap doors were then down in position, and it appeared that neither the plaintiff nor the defendants, nor any one in their employ, that day used the hoistway, or opened the trap doors, until they were opened by the defendants, before the accident. Some time in the afternoon, about two o’clock, according to the plaintiff’s testimony, and a little after half-past four, according to the defendants’ testimony, the boy of the defendants, at their request, and with their authority, came upstairs to the plaintiff’s store, and, without giving any notice to any one other than his appearance and such noise as the operation of the hoistway might make, unbolted and opened the entrance door. He testified, and this was ribt contradicted, that he found no bar up or inside the hoistway, and that he opened the left-hand trap door, leaving in position the right hand trap door, and went away, closing and bolting the door leading from the plaintiff’s store to the hoistway; but did not put the bar in position or look for it, or make any inquiry for it. He also testified, that, even if he had looked for it or seen it, he should not have put it in position. The testimony of the plaintiff showed, and this was not contradicted, that the bar was always just inside or just outside the hoistway, where it could easily be seen and reached; but no one of the plaintiff’s witnesses testified that on the particular day of the accident he had actually seen the bar. The hoistway remained in the condition in which the boy left it until the accident happened. When the boy came through the plaintiff’s store to open the trap doors as above stated, the plaintiff was in the store; but the testimony left it in doubt whether the plaintiff was aware of the boy’s entrance, or of what he had done.</p> <p>All of the defendants’ testimony tended to show that the merchandise, for the moving of which the hoistway was used, arrived at the defendants’ store a little after half-past four o’clock in the afternoon; that the trap doors were then opened; that it took some time, until about five o’clock, to operate the machinery of the hoistway; and that the merchandise had been raised and lowered into the defendants’ basement, and the trap doors of the defendants closed and put into position about five minutes before the accident.</p> <p>The defendants’ counsel, in his opening, stated that the boy, when he opened the trap door on the plaintiff’s floor, saw the basket of chickens in the hoistway, but this boy was present at the trial and testified that he did not see the basket of chickens.</p> <p>About five o’clock, the plaintiff put on his coat and prepared to start for his train, which left from the station of the New York and New England Railroad Company at a quarter-past five o’clock. He then went towards the hoistway, and unbolted and opened the door leading from the store to the hoistway. He testified that he looked straight before him, and that the bar was not up in the sockets, and that he then walked, into the hoistway without stopping to ascertain its condition further, as confidently as he would anywhere, and that his sole purpose was to get his chickens, and then fell through the open space occupied by the left-hand trap door when shut, to the defendants’ floor, sixteen feet below, striking on his feet and back, and sustaining the injuries of which he complained.</p> <p>There was evidence tending to show that the hoistway was dark at the time, and also that both of the gas lights, which were nearly in front of, and about nineteen feet from the entrance door of the hoistway, were burning, one of them quite dimly, when the plaintiff opened the entrance door of the hoist-way. There was no claim on the part of the plaintiff that his rights in this1 case were affected by any ordinance of the city of Boston, and the plaintiff did not call the attention of the court to any statute affecting the case.</p> <p>The plaintiff requested the presiding judge to instruct'the jury as follows: “ 1. If a person for his own purposes and advantages, by removal of trap doors or otherwise, creates an excavation or hole near or adjoining the premises of another, and knows that such hole may be dangerous to the occupant of the neighboring premises, it is his duty, independently of any. agreement, whenever he makes such excavation or hole, to take such steps as are reasonable, by bars or otherwise, to protect and guard it; and if he fails to do so, and a person is, while in the exercise of due care, injured by such neglect, the latter may recover therefor. 2. The general principle of law is, that one person must so use his own property and rights as not unnecessarily to interfere with the property and safety of his neighbor’s. 3. If the jury find that there was an agreement between the plaintiff and the defendants to the effect that, whenever the defendants used the hoistway, they should see that the bar was put up, then, if the defendants negligently neglected such duty, the plaintiff, if in the exercise of due care, may recover for any injury which he has received in consequence of such neglect of the defendants.”</p> <p>The judge refused so to instruct the jury; and, after giving them instructions on the question of due care on the part of the plaintiff, to which no exceptions were taken, continued as follows:</p> <p>“ It appears that the accident occurred in a certain building in this city, which you have seen, and there is no dispute between the parties that in the corner of that building there is a hoist-way extending from the upper story to the basement, closed in by doors, having trap doors on the inside. In the first place, at this point, the rights of the plaintiff in that hoistway are determined by the terms of a written lease under which he holds, and the duty of the construction of that lease and the definition of his rights under it are imposed by law upon the court; and I instruct you that, if you find .that hoistway to be constructed in the manner I have described, the plaintiff had no rights in it under his lease, except to use it for the purposes of the hoist-way. And the lease does not entitle the plaintiff to use the hoistway for the storage of merchandise. While using it for such a purpose, he was not in the exercise of rights conferred by the lease.</p> <p>“ If you find the testimony given by the plaintiff himself to be correct, namely, that at the time he met with the injury he entered the hoistway designedly for the sole purpose of getting some chickens which he had stored in it during a portion of the day, then the defendants were not under any legal obligation to the plaintiff, while so using the hoistway, to keep the same in a safe and suitable condition for such use, and the plaintiff used the same at his own risk; unless the plaintiff satisfies you that the defendants put themselves under such legal obligation by virtue of some agreement or understanding made by the defendants with the plaintiff to protect the plaintiff while using the hoistway for such purpose, not contemplated in its erection. Under the lease of the defendants, and upon the undisputed evidence in the case, the defendants had the right to use the hoistway from the basement to the top story in common with the plaintiff and other tenants; and their obligation, at common law, to the plaintiff, apart from any special agreement which I shall hereafter refer to, was an obligation to the plaintiff to use due and ordinary care in reference to the hoistway, while the plaintiff was also using it for the purposes of a hoistway. And, by the common law, if he used it for the purpose of storing chickens, and went there, intentionally or designedly, for the sole purpose of getting the chickens, while so using it, the defendants were under no legal obligation to him as to the care of the hoistway and bars. So that, if the plaintiff is entitled to recover in this case, he is entitled to recover by virtue of some understanding and agreement, which the burden is upon him' to satisfy you was made and had with the defendants as to the care and use of the hoistway.</p> <p>“ In passing upon the question of whether there was any such agreement and understanding, — for that is the critical point in this part of the case, — you must carefully consider all the facts of the case; whether or not this hoistway was designed and adapted for the use of a hoistway only; whether or not it was liable to be used at all times during the day by different tenants as a hoistway. And if the defendants made any agreement or had any understanding with the plaintiff as to how they would manage the hoistway and take care of the same after using it, was this understanding and agreement with reference to some use of the hoistway outside of and apart from the purpose for which it was designed, or had it reference only to the use of the hoistway as a hoistway ? Did they put themselves, and did the plaintiff understand that they put themselves, under obligation as to care to the plaintiff while using the hoistway for some other purpose than that of a hoistway?</p> <p>“ Unless the plaintiff satisfies you that the defendants did, by some understanding or agreement, put themselves under such obligation and have failed to keep it, the plaintiff is not entitled to recover. He must satisfy you that the defendants had an understanding or agreement with him, which covered the uses of this hoistway for other purposes than that of a hoistway, and that such understanding or agreement has not been kept by them.</p> <p>“ I ought perhaps to allude to the claim of the defendants. The defendants contend that they made a special agreement, by which, in substance, each tenant was to care for the doors upon his own floor, and of course it would be the legal duty of the defendants, if they are to avail themselves of such an agreement as that to exonerate themselves from other liabilities, to prove the agreement. °The burden is upon the defendants to satisfy you of such an agreement, and, in that connection, I give you this instruction: If the jury believe, upon the evidence, that there was an arrangement or understanding between the plaintiff, the defendants, and Goss that whoever used the hoistway was to hoist the rope and chain to the drum after such use, and that each tenant was to see to closing the trap doors upon his own floor, and that no agreement or understanding respecting the placing of any bar across the entrance was made between the parties, the plaintiff is not entitled to recover in this action.</p> <p>“If the jury shall find upon the evidence, that the bar across the door into the hoistway, upon the plaintiff’s landing, was left by the plaintiff and his servants sometimes in and sometimes out of place, and that the same, upon the day of the accident, as left by the plaintiff, was not in its position across the door, and that the plaintiff, without stopping to ascertain whether or not it was in its position as a barrier across the door, entered upon the hoistway for the purpose of removing chickens therefrom, and that there was no agreement or understanding between the plaintiff and the defendants that any bar should be placed across the plaintiff’s door when the defendants were using said hoistway under their lease, the plaintiff cannot recover.</p> <p>“ In the absence of any agreement or understanding between the parties, in relation to the placing of a bar across the plaintiff’s entrance to the hoistway, the mere omission, by the defendants’ servant, to place a bar across such entrance, does not of itself furnish a ground of action to the plaintiff for injuries received from the absence of said bar. But, in order to recover, the plaintiff must satisfy the jury that the defendants, by their servants, removed a bar which had been placed as a barrier across said entrance, or failed to place it in the position required by said agreement or understanding.’’</p> <p>The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Tort, by the administrator of the estate' of Robert Gulline, under the Pub. Sts. c. 52, § 17, for the loss of the life of his intestate on June 7, 1884, occasioned by an alleged defect in Central Bridge, over the Merrimac River, in Lowell. Trial in the Superior Court, without a jury, before Blodgett, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The judge found the following facts: There is in the city of Lowell a bridge- across the Merrimac River known as Central Bridge, which the defendant is by law bound to keep in repair. There was a defect or want of repair in said bridge, as hereinafter set forth, and, by reason of said defect' or want of repair, the life of said Robert Gulline was lost on June 7, 1884. The defendant had previous reasonable notice of the defect or want of repair; and, within the timo required by law, due notice in writing was given to the defendant of the time, place, and cause of said loss of life, in which notice damages for said loss of life were claimed of the defendant.</p> <p>The bridge is built of iron, four hundred and sixty-eight feet in length, with a roadway in the centre thereof thirty-two feet nine inches wide, and a footway on each side nine feet four inches wide, and six inches higher than the level of the roadway. Upon the outside, on both sides of the bridge, there is an iron fence about five feet high. Along the whole length of the bridge, in the sidewalks on either side, and within a few inches of the roadway, there are latticed iron columns about ten inches square, thirty feet in height, and placed at a distance of about twelve feet apart. From the top of each column to the bottom of the next column on the same side of the bridge were parallel diagonal iron braces about three fourths of an inch in thickness, five inches wide, and thirteen inches apart; and these braces ran through the planking of the sidewalk and connected with the columns under the same. Other than these posts or braces there was ho obstruction between the sidewalk and the roadway. The flooring of the footways was of two-inch pine planking ; and the space between the separate pairs of diagonal braces, placed at regular distances apart, was large enough for a horse and carriage to be driven from the roadway on to the foot-way. When the plank sidewalk was laid, where these braces went through the same, slots were cut into one side of the planks so that the same could be put down around the braces, and, upon three sides, between the two parallel diagonals comprising one set of braces, there was nothing to support the planking.</p> <p>At a distance of seven inches southerly from one of these latticed iron posts, and on the west side of the bridge, where two parallel diagonal braces (which were eleven and five eighths inches apart from each other) went through the planking to connect with the latticed iron pillar, by bolts underneath the planking, there was a hole in the planking of the bridge eleven inches square between the braces, which had been made by the breaking in of the planking. Through this hole the plaintiff’s intestate fell into the river below, and was drowned. The hole constituted a defect or want of repair, of which the defendant had reasonable notice, as above stated, and this hole had existed at least for several weeks prior to the accident, and, in respect of this hole, the bridge was faulty in construction.</p> <p>The plaintiff’s intestate, who was seven years of age, and a bright boy for his years, resided with his father in a part of Lowell called Central ville, which was on the north side of the river, the city proper being situated on the south side, and the plaintiff had frequently passed over the bridge; and there was nothing to intercept the view of this hole except as herein stated, but neither the father, the mother, nor the son knew of any hole or defect in the bridge.</p> <p>Upon the question of due care, the plaintiff introduced the -following evidence, which was all the evidence introduced by him on this point.</p> <p>He testified as follows: “On June 7, 1884, about eight o’clock in the evening, I was going home to Central ville with my wife, my little girl three years old, and my son Robert, who was seven years old. The little girl began to cry just before we got on the bridge, and wanted her mother to carry her. I said to the mother, 1 You go on the other side of the bridge, and she will walk with me well enough.’ The mother then crossed to the east side of the bridge and left me with the two children, the little boy on the right hand and the little girl on the left, on the sidewalk on the west side. Going over the bridge the little girl began to cry, and I said, ‘ Robert, go around the other side and take hold of the little girl’s hand,’ and he said, ‘ I will, father, but I will clip this post first.’ (The post indicated was the one near the hole above described.) He did go, and I walked directly on, and looked around after going three or four yards, and there was no boy to be seen. I went directly home and found the boy was not there, and, after some conversation with my wife, I went to look where I left the boy, and saw the hole.”</p> <p>Upon cross-examination, the plaintiff testified: “ I have lived in Centralville for twelve months. The boy lived with me all the time. I crossed the bridge every day to work. The boy left me when I was about fourteen yards on the bridge. He had hold of my right hand. Said he wanted to 1 clip the post,’ or throw his arms around it, — call it hugging. The post is a latticed post, where the boys had been accustomed to climb. I was nearly opposite the post when he spoke of clipping it and left my side. I didn’t see him any more. I did not glance about, but went three or four yards and looked around. I made no inquiry about the boy’s disappearance. Saw no opening at that time. Went directly home. Arrived there between nine and ten o’clock. Waited some twenty minutes or more for my wife. I stayed in the house a half-hour, and then went to the hole, and then to the police station. At the entrance to the bridge there is an electric light, and another electric light a short distance from and nearly over this hole.”</p> <p>The father made no objection to the boy “ clipping ” the post, though he knew the boy intended so to do. Between the time when the boy let go the father’s hand, and the time when the father looked around, the boy went through the hole in the bridge.</p> <p>Upon this evidence, and upon the facts found by the judge as hereinbefore stated, the defendant asked the judge to rule that the plaintiff’s evidence was insufficient in law to show the due care required to maintain the action; and that there was no evidence of due care on the part of the plaintiff, or of his intestate, or of those in charge of the intestate. The judge declined so to rule; and found for the plaintiff, and assessed damages in the sum of $500. If, as matter of law, the judge should have ruled as requested by the defendant, judgment was to be entered for the defendant; otherwise, judgment for the plaintiff on the finding.</p>

<p>Section 7 of the St. of 1885, c. 345, providing that “no person hereafter naturalized in any court shall he entitled to be registered as a voter within thirty days of such naturalization,” is in conflict with the Constitution of the Commonwealth, and is void.</p>

<p>Bill in equity, against Oliver Prescott, Frederick C. S. Bartlett, William E. Bird, Charles Greene, executor of the will of Roscoe Greene, deceased, James M. Cross, administrate!- de bonis non of the estate of Alfred Greene, deceased, and Welcome A. Greene, alleging the following facts:</p> <p>Thomas A. Greene died on December 14, 1867, leaving a will, which was duly proved and allowed on January 3, 1868, and which, after certain specific bequests, devised the residue of his estate to his wife for life, and contained the following clause.: “ I give and bequeath to the children of my brother, Welcome A. Greene, to be divided equally among them, all the residue and remainder of my estate after the decease of my said wife, to them, their heirs and assigns, forever; it being my intention, if any of these should die leaving issue before the reception of this bequest, said issue shall be entitled to one share thereof by right of representation.” Said residue and remainder consisted of personalty of the value of about $82,000, and of realty of the value of about $5000.</p> <p>At the time of the making of the will, and at the testator’s death in 1867, his said nephews and nieces were ten in number, namely, two nieces and eight nephews, of whom the defendant Welcome was one, and who thereby became entitled, as legatee under said will, to one tenth part of said residue and remainder.</p> <p>After the death of the testator, Roscoe Greene, another of said ten legatees, died, in July, 1871, leaving a will duly admitted to probate, by which, after certain specific bequests, he gave all the residue and remainder of his estate and property to his sister, Maria Louise Greene, and his seven brothers, including said Welcome, equally.</p> <p>Roscoe’s estate, independently of his said legacy from his uncle, Thomas A. Greene, was more than ample for the payment of all his debts, funeral expenses, and other charges and liabilities of and upon his estate, and specific legacies, so that the defendant Welcome became entitled, under Roscoe’s will, to a clear one eighth part of Roscoe’s legacy under Thomas A. Greene’s will.</p> <p>In September, 1871, the defendant Charles Greene was duly appointed executor of the will of Roscoe, and became qualified as such. 1</p> <p>Alfred Greene, the brother of Roscoe and of Welcome, was also one of said ten legatees, and as such entitled to one tenth part of the residue and remainder of Thomas A. Greene’s estate. Alfred was also one of the residuary legatees of Roscoe’s will, and as such entitled to a clear one eighth part of Roscoe’s legacy under Thomas A. Greene’s will, making Alfred’s whole interest in Thomas A. Greene’s estate nine eightieth parts of the residue .and remainder thereof.</p> <p>In February, 1874, Alfred died intestate, leaving his six brothers and his two sisters, his only heirs at law and next of kin, and, in September, 1877, the defendant James M. Cross was duly appointed administrator de bonis non of Alfred’s estate. Alfred’s estate, independently of his legacy under his said uncle Thomas’s will, and of his legacy under his brother Roscoe’s will, was more than ample for the payment of all his debts, funeral expenses, and all other charges and liabilities upon and of his estate, whereby said Welcome, on Alfred’s decease, became entitled, as heir and next of kin to Alfred, to a clear one eighth part of Alfred’s interest in Thomas A. Greene’s estate, namely, to one eighth of Alfred’s nine eightieth parts thereof.</p> <p>On October 31, 1868, after the death of Thomas A. Greene, but before the death of either Alfred or Roscoe, the defendant Welcome, whose whole interest then in the estate of Thomas A. Greene was his legacy of one tenth part thereof, made an assignment of his said legacy to the defendant Oliver Prescott, upon certain trusts, namely, to apply the same to the payment of a debt owing from the defendant Bird to the estate of Thomas A. Greene, the amount of which debt does not appear in said assignment, and to pay over the surplus of said legacy, after paying said debt, to Welcome, his executors, administrators, and assigns.</p> <p>After the deaths of Roscoe and of Alfred, namely, on July 29, 1875, the defendant Welcome having before that time wrongfully and fraudulently taken and converted to his own use the sum of $7000, which had been entrusted to him by his sister, the plaintiff, to be held in trust for her sole and separate use, she being then married, he, said Welcome, in consideration thereof, then and there undertook and promised to convey and assign to the plaintiff, as security for said sum of money thus wrongfully and fraudulently taken from her, all his right, title, and interest' in and to said estate of Thomas A. Greene, deceased, and thereupon made and delivered to the plaintiff his promissory note for the sum of $7000, dated July 1, 1875, payable to her or order, one year after date, with interest at seven per cent per annum, payable semiannually, and also made and executed to the plaintiff a transfer and assignment in writing, and under seal, of all his, said Welcome’s right, title, and interest in and to said Thomas A. Greene’s estate, including as well said Welcome’s original legacy under Thomas A. Greene’s will as his interest in said estate as devisee of Roscoe and as heir and next of kin of Alfred, to have and to hold to her, the plaintiff, her heirs and assigns, as security for the payment of said note.</p> <p>The transfer and assignment was dated July 1, 1875, but "was made and executed on July 29, 1875, and was recorded in the records of personal property in New Bedford on August 10,1875. Said transfer and assignment was expressed to be made subject to the above-mentioned assignment to Prescott of said Welcome’s original legacy under Thomas A. Greene’s will.</p> <p>Lydia M. Greene, widow of Thomas A. Greene, died on November 6, 1883.</p> <p>The defendant Bartlett was duly appointed administrator de bonis non with the will annexed of the estate of Thomas A. Greene, and qualified as such in December, 1883.</p> <p>Thereupon the plaintiff, on December 10, 1883, through her attorney in fact, James M. Cross, gave to said Bartlett, administrator, notice in writing of said Welcome’s transfer and assignment to her, and that said administrator must hold Welcome's share therein until her claim was satisfied, the receipt of which notice Bartlett in writing acknowledged on December 12,1883.</p> <p>Upon receiving said notice, or before receiving the same, Bartlett obtained from the records of deeds of personal property in New Bedford, or otherwise, a copy of said Welcome’s assignment and transfer to the plaintiff, and knew the contents thereof.</p> <p>Afterwards, and about January 16, 1884, Bartlett, as administrator, being ready to divide and pay among and to the legatees of Thomas A. Greene the sum of $72,000, part of the personal estate of said testator, it was agreed by and between the eight surviving legatees and Charles Greene, executor of the will of Roscoe Greene, James M. Cross, administrator of the estate of Alfred Greene, and said Bartlett, administrator, that the shares of Roscoe and Alfred in Thomas A. Greene’s personal estate should not be paid to their representatives, but directly to the eight surviving legatees, they being the only persons beneficially interested in said shares of Roscoe and Alfred.</p> <p>The division of said sum was accordingly made, and thereupon, without the consent or knowledge of the plaintiff, and notwithstanding the notice to Bartlett of the plaintiff’s claim and title to said Welcome’s share and interest in said estate, and although Bartlett knew that the whole amount of the debt secured by said Welcome’s assignment to Prescott, as claimed by Prescott, did not exceed the sum of $6986.66, yet Bartlett paid over the whole of the $9000, which was the share of said Welcome, to Prescott, who also then and there had full notice and knowledge of all the premises, and of the plaintiff’s claim and title to Welcome’s share and interest in the estate of Thomas A. Greene; said Bartlett then and there taking from Prescott an agreement to indemnify him against the plaintiff’s claim therefor.</p> <p>Upon receiving said $9000, or soon after, Prescott, well knowing all the premises, after deducting from said sum the sum of $6986.66 in satisfaction of the amount claimed by him to be due upon the debt secured by said assignment to him, without notice to the plaintiff, unlawfully paid over to said Welcome the residue of said $9000, namely, the sum of $2013.34, Prescott taking indemnity from Welcome therefor.</p> <p>Immediately on learning of said payment by Bartlett to Prescott, and on January 15, 1884, the plaintiff, by her attorney, Cross, gave notice by letter to Bartlett that said payment to Prescott was wrongful, and forbade Bartlett to make any further payment out of said Welcome’s share of said estate to Prescott, which letter was acknowledged in writing by Bartlett on January 18, 1884.</p> <p>Upon hearing of said payment by Prescott to said Welcome, the plaintiff, by her attorney, gave notice to Prescott that she should look to him for the money so paid said Welcome, and also gave notice to Bartlett that the trusts of said assignment to Prescott having been, as Bartlett well knew, fully performed and executed, he had no right to pay to Prescott, and Prescott had no right to receive from him, any further sum out of the share of Welcome in said estate of Thomas A. Greene, and that Bartlett would be held responsible for all moneys and property then in his hands, or which should come to his hands, as such administrator, to which said Welcome was or should.be entitled.</p> <p>Notwithstanding these notices, Bartlett afterwards, and on March 4, 1884, made another division of the sum of $8800 of said personal estate of Thomas A. Greene, and paid to Prescott the further sum of $1100 of the share of said Welcome in the personal estate of Thomas A. Greene, Bartlett taking indemnity therefor from Prescott.</p> <p>On March 4, 1884, Prescott wrote to the plaintiff’s attorney that, in disregard of the above facts, he should receive from the administrator, and pay over to said Welcome, the balance of the property so coming to said Welcome, namely, said $1100, and take said Welcome’s indemnity therefor.</p> <p>The share of the two sums of $72,000 and $8800, so divided, to which said Welcome was entitled under his own legacy from Thomas A. Greene, was $8080; the balance of said first division of $9000, namely, $920, and the whole of the second division of $1100, were on account of his share in Roscoe’s and Alfred’s estates.</p> <p>Only a small part of said debt of $7000, secured to the plaintiff by said assignment from said Welcome, has been paid, and there is now due to her thereon, including interest, the sum of about $11,000.</p> <p>The plaintiff has applied to said defendants Welcome, Bartlett, and Prescott, to pay to her all of the share of Welcome in the estate of Thomas A. Greene, which was acquired by him as legatee of Roscoe Greene and as heir to Alfred Greene, and also all of Welcome’s legacy under the will of Thomas A. Greene over and above the amount of the debt secured by the assignment of said legacy to Prescott; but they have refused the plaintiff’s demand, and they all deny that the plaintiff has any right, title, or interest in or to any part thereof, pretending that the assignment to Prescott was of all Welcome’s interest in said estate, as well of that which he afterwards acquired from his said brothers, as of that which he then had as legatee of Thomas A. Greene, and also pretending that said transfer and assignment to the plaintiff was invalid and of no effect, because it was not recorded in the records of mortgages of personal property in New Bedford within fifteen days from July 1, 1875, the nominal date of said assignment, and because the assignment to Prescott was an absolute conveyance and assignment of all the interest of said Welcome’s estate, and left him no assignable interest therein.</p> <p>The prayer of the bill was, that it might be declared that said transfer and assignment from Welcome to the plaintiff was a good and valid equitable assignment of all his right, title, and interest in and to the estate of Thomas A. Greene, as well of Welcome’s own legacy, subject to the payment thereout of the debt secured by the assignment to Prescott, as of said Welcome’s shares in the legacies to Roscoe and Alfred; that it might be declared that Prescott was not entitled to receive from said administrator, and said administrator had no right to pay to Prescott, any part of the share of the estate of Thomas A. Greene belonging to said Welcome as legatee of Roscoe or as next of kin to Alfred; that an account might be taken of what was due from Bird to the estate of Thomas A. Greene, and secured by the assignment to Prescott from said Welcome; that an account might be taken of the personal estate and effects of Thomas A. Greene that have come to the hands of said administrator, Bartlett, and of the shares thereof to which said Welcome was entitled as legatee of Thomas A. Greene, as legatee of Roscoe Greene, and as next of kin of Alfred Greene, respectively; that the defendants Prescott, Bartlett, and Welcome might be severally decreed to be liable to the plaintiff for, and might be ordered to pay and make over to the plaintiff, all of the money so paid by Bartlett to Prescott, and by Prescott to Welcome, over and above the amount of Bird’s debt secured by the assignment to Prescott, with interest thereon; that the defendant Bartlett, administrator, might be restrained from paying to Prescott or to Welcome any part of the share of Welcome of or in the personal assets of the estate of Thomas A. Greene, that are now in the hands of said administrator, or that may hereafter come to his hands; and for other and further relief.</p> <p>The defendants, except Cross, severally demurred to the bill, for want of equity, for multifariousness, because the plaintiff had a plain, adequate, and complete remedy at law, and because the matters complained of in the bill and the relief sought were exclusively within the jurisdiction of the Probate Court.</p> <p>At the hearing, the demurrers were sustained, and the bill dismissed; and the plaintiff appealed to the full court.</p>

Tort for personal injuries occasioned to the plaintiff by a piece of zinc falling or being blown by the wind upon her from the roof of the defendant’s house.

<p>If a person who, after having served in the navy of the United States as part of the quota of a town in this Commonwealth, and having been honorably discharged, in 1864, enlists again as part of the quota of another town, and during the term of his second enlistment is convicted of wilful desertion in 1864, § 3 of the St. of 1865, c. 230, enacting that the provisions of the statute in relation to the acquirement of a settlement by those who had served in the army and navy of the United States shall not apply “ to any person who shall have been guilty of wilful desertion,” prevents him from gaining the settlement which, but for his desertion, he might have acquired by virtue of his first enlistment.</p> <p>Contract for money expended by the plaintiff in the relief of William Hastings, a minor child of Bernard Hastings, whose settlement was alleged to be in the defendant town. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

Replevin of one. hundred and twenty-four bales of rags. The answer, among other things, set up two circulars of the United States Treasury Department relating to the importation of old rags, dated December 22, 1884, and June 10, 1885, respectively, also a regulation of the board of health of the city of Boston relating to the disinfection of imported rags, dated June 1, 1885, the material parts of which circulars and regulation appear in the opinion; that the rags replevied…

<p>If A., supposing that B. owns certain land, enters into a contract under seal with him to build a house on the land, to be paid for by three promissory notes of B., and, before the contract is completed, ascertains that the land belongs to 0., and, being induced by fraudulent statements of C. as to B.’s financial ■ ability, completes the contract, all of the notes having been tendered and two of them accepted by A., he cannot then rescind the contract and maintain a petition against C. to enforce a mechanic’s lien, under the Pub. Sts. c.,191, on the ground of an implied contract on the part of 0. coexistent with the contract with B.</p> <p>If a person has furnished labor and materials, in the construction of a house, under an entire contract with a person not the owner of the land, and has given no notice to the owner of his intention to claim a lien for the materials, and cannot distinctly show what the labor was worth, he cannot enforce a mechanic’s lien, under the Pub. Sts. c. 191, for either the materials or the labor.</p> <p>A mechanic’s lien cannot be enforced, under the Pub. Sts. c. 191, for the amount in which land has been enhanced in value by the labor and materials expended upon it by the petitioner.</p> <p>If A., supposing that B. owns certain land, enters into a contract under seal with B. to build a house on the land, and, before the contract is completed, ascertains that the land belongs to C-, and, being induced by the fraudulent statements of C. as to B.’s financial ability, completes the contract, A. cannot then rescind the contract and maintain a petition against C. to enforce a mechanic’s lien, under the Pub. Sts. c. 191, to the prejudice of a person, who, in good faith and for a full consideration, has taken a mortgage of the land while the contract was in force.</p>

<p>A testator, by his will, gave to his wife “ the nse and income, during her natural life, of all my property and estate, personal and real, for her support, comfort, and enjoyment, or for any other purpose as she may in her judgment deem necessary ; and if said income shall in her judgment be insufficient for her support, comfort, enjoyment, or for any other purpose for which she may wish to spend money, it is my will that she may spend the proceeds arising from the sale of any of my personal or real estate; and I hereby give her power to sell in her sole and individual name any of my persona] or real estate, and to convey and transfer'by deed or other instrument, in her own name, for the above-named purposes, or for investment or reinvestment; ” and gave one half of the residue of his estate remaining at his wife’s death to his sister. The testator’s sister died before his wife, who sold none of the estate. Held, that the wife took a life estate coupled with a power; and that the limitation to the sister was valid, and passed to the administrator of her estate.</p>

<p>Ií A. delivers to B. certain bonds, for two distinct considerations to be performed by B., the first for the benefit of a third person, whereby an advantage enures to A., and the second for A.’s own benefit, and B. performs the first but not the second, A. cannot, without returning to B. the benefit received from him, rescind the contract, and maintain an action of tort in the nature of trover against B. for the conversion of the bonds, by proof that B., when he entered into the contract, fraudulently intended not to perform the second consideration, although the benefit received by A. from the performance of the first consideration is of sucii a nature that it cannot be returned.</p>

<p>• A. and B. executed an indenture, whereby B. covenanted that he would “transfer to her, the said A., the moneys originally deposited in her name in ’’ a certain bank, “amounting to about $284.” Previously to the date of the indenture, there was on deposit in said bank, to the credit of a third person $284, and to the credit of A. a larger sum, both of which sums had been transferred to B. A. received a bank-book containing a credit of $284, which sum had been transferred to her by B. A. was an ignorant woman, who signed the indenture with her mark, the same having been read to her. Held, in an action by A. against B. for a breach of the covenant, that the description therein of the deposit must prevail over the statement of the amount, and include the larger sum; that the receipt of the bank-book by A. created no estoppel; and that interest was properly allowed, no demand being necessary.</p>

Contract for money had and received by the defendant to the plaintiff’s use.

<p>Contract upon a policy of insurance, issued by the defendant corporation, against bodily injuries to "J. J. Murray, for the term of one year from September 14, 1883, and payable to the plaintiff. The material provisions of the policy appear in the opinion. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows:</p> <p>Murray was in the employ of the Boston, Barre, and Gardner Railroad Company, and was killed by a freight train on the road of that corporation on December 26, 1883.</p> <p>Edward Doody, a witness for the plaintiff, testified that he was the conductor of the freight train which caused Murray’s death; that he was in the saloon car at the time of the accident, which was in the forenoon ; that the first he knew of it was the picking up of Murray, just below a certain crossing; that while in the car he heard a whistle for the crossing, and, a few minutes later, he heard a whistle for brakes; that he helped the brakemen; that the first thing he saw, after the train was stopped, was Murray, who was behind the train, lying beside the rail on the outside of the track; that he was the first man who approached Murray, and he spoke to him, and Murray replied ; that the witness, the engineer, and the fireman of the train picked Murray up and put him into the saloon car; that his legs appeared to be broken, and his head was bloody; that the train then went on, and Murray died in a few minutes; and that Murray was conscious from the time the witness went to him until he died. On cross-examination, the witness testified that he sent a brakeman back to notify Murray’s foreman of the accident; and that, when the brakeman was so sent, Murray said that he did not want the witness to tell the foreman; that he did not want the foreman to know anything about it.</p> <p>It had previously been proved that Murray went out that morning from Worcester on a passenger train, and reported at a certain station to the section foreman, who sent him off with his pick and shovel to clear the snow from the rails at crossings, the first crossing being the crossing where he was killed: that there were ten or twelve inches of old snow on the ground ; and that there had been a fall of three inches of new light snow the preceding night.</p> <p>A. W. Mitchell, a witness for the defendant, testified that he was the engineer of the train which killed Murray; that the condition of the" track was slippery, caused by a light snow; that there was deep snow on each side of the track; that as the train approached the crossing in question, it being a down grade, he sounded the whistle at the whistling post nearest to the crossing, and, rounding a sharp curve, he saw what he thought to be a coat on the snow, but, on getting nearer, he saw a man lying on his face, his feet towards the engine and his limbs covered with light snow; that the coat did not seem to have much of any snow on it; that he whistled for brakes, and sounded the whistle for the man to get off; that the man did not move, and he reversed the engine; that the man did not start, and the fireman applied the tender-brake; that as the train struck him, the clothing caught on the scraper and threw him one side; that one limb might have gone under the front wheel; that, the clothing held and kept him from being thrown under the train and -mangled; that he was drawn quite a distance, and then thrown out to one side; that, before the man was struck, his arms were lying out in front of him, and his face was down on the snow; that he was lying lengthways between the rails, with his head towards the crossing ; that a pick or shovel was standing up in the snow on the right of the track, near him; and that he heard the man say, “ Don’t tell Mike,” meaning his foreman. On cross-examination, the witness testified, that, after rounding the curve, he could see the crossing for perhaps thirty rods ; that he was about twenty rods from the crossing when he saw the coat; that, when he first discovered the man, he whistled for brakes and reversed his engine, and then gave a succession of short whistles for the man to get out of the way ; that at the time of the accident he had been an engineer for two and one third years, and had previously been a fireman for three or four years ; that there was difficulty in stopping the train in thirty rods ; and that he opened the sand-box.</p> <p>The plaintiff, for the purpose of controlling the testimony of Mitchell by showing him to have been reckless and to have run over the deceased unnecessarily, recalled Doody, and, against the defendant’s objection to both the competency of the evidence and the qualification of Doody to give his opinion, he was allowed to testify that he had been a brakeman before he was conductor; that the train ought to have been stopped quicker than it was, and in from three to five minutes; that he could not tell how far it would go after all the appliances were used for stopping the train ; and that his idea was forty or fifty rods.</p> <p>On cross-examination, the witness testified that, when the whistle sounded, he was in the caboose, looking out at the rear end of the train.</p> <p>The plaintiff also put in evidence tending to show that the railroad was nearly straight for a long distance from said crossing toward the north; that the planking on the crossing could be seen by a man standing on the track at a distance of about ninety rods from the crossing; and that, if a man was elevated as high as the engineer would be in his cab, he could see said planking for a considerable distance farther.</p> <p>At the conclusion of the evidence, the defendant asked the judge to instruct the jury “ that there is no sufficient evidence in this case to warrant the jury in finding that the deceased was in the exercise of due diligence for personal safety and protection at the time of the injury, and that therefore the plaintiff cannot recover.” This ruling was refused, and that issue was submitted to the jury, the judge ruling that such due diligence or due care must be proved by the plaintiff affirmatively.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Petition to the Superior Court, under the Pub. Sts. c. 49, § 79, filed May 18, 1886, by Michael Sullivan and Julia Sullivan, alleging that they were the owners of a certain parcel of land in Fall River on the northerly side of Bank Street, a public highway; that .their land adjoined Bank Street, and extended along the northerly side of the same from Seventh “ Street to Chestnut Street, now Eighth Street; that on May 18, 1885, the mayor and board of aldermen of Fall River passed the following order: “ Ordered, that the superintendent of streets be and he is hereby authorized and directed to cause to be laid granite curbing on the north side of Bank Street from Seventh Street to Chestnut Street; ” that in pursuance of said order, and in execution of the powers conferred thereby, the superintendent of streets caused said granite curbing to be laid in Bank Street between Seventh Street and Chestnut Street, and, in laying said curbing, the grade of Bank Street was lowered, and the surface thereof was cut down several feet in places along the line of the petitioners’ land, abutting on Bank Street, below its former established level, thereby greatly injuring and damaging the petitioners’ land, and the buildings standing thereon, abutting on Bank Street; that a year had not elapsed since the passage of said order by virtue of which the repairs and alterations were made; that neither at the time of the passage of said order, nor at any time since the same was passed, had the mayor and board of aldermen, or their successors in office, estimated, assessed, or paid any damages to the petitioners for the injury which they had suffered in their property by reason of said repairs and lowering of the grade of Bank Street; and praying for a jury to estimate and assess said damages. ■</p> <p>The answer admitted that the order of May. 18, 1885, “viz. a duly recorded order for specific repairs,” was passed as alleged; and that in pursuance of said order, and in execution of the powers conferred thereby, the superintendent of streets laid said curbing; and averred that he did not vary the legal grade of said street as duly established by the records of said city in 1870, but conformed to and obeyed the same; that the petition was not brought within the period allowed by the statutes, and not within one year from the establishment of said grade in 1870; that the Superior Court had no jurisdiction of the petition ; and that, if any work had been done, except as above stated, the same was illegal, and nothing was recoverable therefor in this proceeding.</p> <p>Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared that on December 28, 1870, the city council laid out Bank Street from Oak Street to Chestnut Street, now Eighth Street, and established its grade at the time of location, and awarded no damages; that said street was petitioned for and the petition filed with the city clerk on April 4,1870 ; that shortly after, and within a year, the respondent removed large stones or boulders and part of a ledge from Bank Street, coated the same with gravel at the surface, and put the street in a passable condition ; that it was wrought for travel and opened for public use, and was used as a public street or highway; that about two years after, when stones began to show through the surface, more gravel was put upon the street, and .at other times since then up to 1885 the superintendent of streets put gravel upon said street, and kept it in repair for public travel, and it was used as a public highway; and that said street was, for a short distance, in front of the petitioners’ property, from the corner of Seventh Street, at the grade as established at the time of opening said street.</p> <p>The order of May 18, 1885, was executed by the superintendent of streets upon the grade established in 1870, and the injury complained of was occasioned by the laying of the curbing. The superintendent of streets is also the surveyor of highways.</p> <p>The petitioners own all the property on the northerly side of Bank Street between Seventh Street and Eighth Street, and owned the same on December 28, 1870.</p> <p>In 1875, water pipes were laid in the southerly side of Bank Street, four and a half feet below the surface as opened to public travel, between Seventh Street and Eighth Street, and were laid, at the request of the petitioners, by the respondent.</p> <p>In 1878, a sewer was constructed in Bank Street from Eighth Street about one hundred feet, or about midway between Seventh Street and Eighth Street, by the respondent, at the request of the petitioners; said sewer was constructed about four feet below the surface of Bank Street. It appeared that sewers are not constructed by any fixed rule establishing the depth below the established grade.</p> <p>There was also evidence that the respondent made 'repairs upon Bank Street, such as filling in after the water pipes were laid and the sewer constructed, and filling in cavities after taking out large stones at the time the street was opened for travel.</p> <p>There was no evidence of any orders for specific repairs other than those passed on December 23, 1870, and May 18, 1885. The city did nothing up to 1885 towards working Bank Street to the grade of 1870.</p> <p>The respondent requested the judge to rule that the petitioners could not introduce evidence showing that they suffered damages resulting from the order of May 18, 1885, as set forth in the petition, said order being merely to lay curbing, and that no damage could be incurred, as the order itself did not affect their property, but related to a line in the street; and that the petitioners did not file their petition within one year from the order of December 23, 1870, locating and establishing the grade of said street. The judge refused so to rule.</p> <p>It also appeared that the petitioners’ land was cut down in some places, the deepest cut being three feet ten inches.</p> <p>The respondent requested the judge to instruct the jury as follows: 111. The petitioners are entitled only to such damages as they have sustained by reason of the order of May 18, 1885, which was an order for specific repairs, and related only to the laying of curbing in said street. 2. The city is not liable for acts done in excess of said order by any of its servants, and the petitioners cannot recover under their petition for any damage sustained by the cutting down and working said street by the superintendent of streets. 3. The grade has not been changed since it was established in 1870, and the petitioners are barred by the Pub. Sts. o. 49, § 79, from bringing this petition for damages for working said street to the established grade of 1870. 4. The surveyor of highways cannot change or alter an established grade of a street once made and established by the mayor and board of aldermen, and acts done in the repairs of said street were not an alteration or change of the grade, and such acts of repair did not alter or change the grade of said street as established in 1870. 5. There was no abandonment of said location and grade of 1870 by reason of repairs done by the superintendent of streets, or by laying a sewer to accommodate the petitioners’ premises, or by laying water pipes without regard to any established grade.”</p> <p>The judge refused to give the instructions requested, and instructed the jury as follows :</p> <p>“ This is a case of specific repairs, and the petition was rightfully brought under the Pub. Sts. c. 49. If the city, in passing the order of May 18, 1885, left the superintendent of streets to place the curbing, without specifying the grade at which it should be placed, and he assumed that the grade of 1870 was the grade intended by the order, and acted upon that assumption and placed the curbing upon that grade, and wrought the sidewalk to meet that grade, without any notice from the city that the .grade of 1870 was not intended by the order of May 18, 1885, then the city may be held liable, if that grade was not in fact the true grade of the street, and the petitioners suffered damage by reason of the placing of the curbing. The grade fixed in 1870 was not necessarily the grade of Bank Street of May 18, 1885; the city may so act with reference to the grade of the street as to give the party whose land abuts upon it the right to assume that a different grade has been established by the city from that fixed by an order by the city council, and entitle the party to damages for a change of such assumed grade.</p> <p>“ In this case, it is left to the jury to say whether or not the city has so acted with reference to the grade of Bank Street as to give the petitioners the right to assume that the grade as it existed just prior to the order of May 18, 1885, was the true grade of Bank Street.</p> <p>“ The jury have the evidence as to the laying out of the street in 1870, as to its being wrought and opened for public travel, the laying of water pipes and sewer pipes through the street, and the repairs upon it from 1870 to May, 1885, and from this evidence the jury will determine whether or not the city had abandoned the grade as fixed in 1870, and adopted the grade as it was in fact from 1870 up to May 18, 1885.</p> <p>“ If the jury find that the city had abandoned the grade as fixed in 1870, and adopted the grade as it was just prior to the order of May 18, 1885, and that under said order of May 18, 1885, the superintendent of streets placed the curbing at the grade as fixed in 1870, and cut down the sidewalk to meet that grade and to accommodate the sidewalk to it, as indicated by the placing of the curbing, and made necessary on account thereof, and the petitioners suffered damages thereby, then the petitioners may recover.”</p> <p>The jury returned a verdict for the petitioners; and the respondent alleged exceptions.</p>

<p>A bill in equity, by the administrator de bonis non,.with the will annexed, of an estate, against the former executor of the will, alleging merely that the defendant, as executor, sold real estate under a power in the will, and misappropriated the proceeds, and refuses to account for them, cannot be maintained as a bill for an account.</p>

<p>Tort for the conversion of certain personal property. Trial in the Superior Court, without a jury, before Bacon, J., who found and ordered judgment for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

Contract, by the widow of James Addison, who during his lifetime was a member of the defendant corporation, an association formed under the St. of 1877', c. 204, to recover $8000, which sum was also claimed by James Macdonald, administrator of the estate of Mary E. Pratt, a daughter of Addison, who survived him. Trial in the Superior Court, without a jury, before Barker, J., who, at the request of both parties, reported the case for the determination of this court.

<p>Bill in equity, filed May 11, 1886, to compel thé defendant to convey to the plaintiff a certain parcel of land, devised to the plaintiff by the will of his wife, Jane Moore, and alleged to have been held by the defendant in trust for her as her property, which trust was terminated. The answer, admitting that the defendant had held the parcel in trust for the plaintiff’s wife, who was the defendant’s sister, during her life, alleged that, by her decease, it had become the property of the defendant in fee.</p> <p>The case was heard by Devens, J., and reported, for the consideration of the full court, in substance as follows:</p> <p>The parcel of land in question, on which there was a small house, was conveyed to the defendant on August 11, 1846, by-John A. Brown and others, “in trust for Jane Allen, .... wife of Thomas Allen, and her heirs and assigns forever.” The consideration was stated to be |700, “to us paid by Daniel Stinson in trust for Jane Allen.” At the time the deed was made, Mrs. Allen’s first husband was living, being at that time insane, and he died on August 19, 1847, in an insane asylum.</p> <p>On May 27, 1848, Mrs. Allen was married to the plaintiff. She occupied the premises from the time of the conveyance to her decease, and the plaintiff occupied it with her after his marriage. At the time of her marriage with the plaintiff, or immediately thereafter, she and the plaintiff demanded a deed of the premises to the plaintiff from the defendant, which he declined to make. Immediately after this refusal, Mrs. Moore made a will, which was duly proved and allowed, by which she devised this parcel, together with all her other property, to the plaintiff.</p> <p>The defendant offered to prove, and the evidence was received de bene, that, at the time the purchase was made, he had in the hands of his sister, Mrs. Allen, about $300 of his savings, which had been deposited with her by him from time to time without special appropriation by him, which sum was devoted to this purchase by his assent; that she had nearly enough money, which came to her from her father, to complete the purchase, and that she paid the rest of the $700; that her then husband was insane; that she had no children, and was then forty-two years old; that she was to live on the estate as long as she lived, and it was then to come to the defendant, and that she had no right to sell or give it away; and that the deed was made to him in trust for that reason. This arrangement or agreement was entirely oral, and the only evidence of it was the testimony of the defendant.</p> <p>The plaintiff paid the taxes on the premises during his occupation, and also put a barn of small value upon the place, and to some extent filled in the land.</p>

<p>A petition to this court, under the Pub. Sts. e. 13, § 64, to recover the amount of a tax assessed to and paid by a corporation upon the market value of the shares of its capital stock, cannot be maintained for an overvaluation of the shares.</p>

<p>Tort for personal injuries sustained by the plaintiff, while in the defendants’ employ, through the alleged negligence of the defendants. Trial in the Superior Court, before Brigham,, C. J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to show the following facts :</p> <p>The plaintiff was nineteen years and two months old at the time of the accident; he was injured while in the employ of the defendants at their woollen mills in Newport, New Hampshire, on October 18, 1888. At the time of this injury, he was employed on a “Parks and Wilson’s Improved Rotary Shearing Machine.” The object of this machine is to shear the nap off woollen cloth. The cloth passes close to a stationary knife plate, over against which is a rotating cylinder, on which are eighteen knife blades, over which there was no guard; the nap projects between the knife plate and the blades, and is sheared off as the cloth passes by. As the cloth comes up from the floor, it passes over a rod, and then over and under various rollers, and then over a brush. From the time when it passes over the rod to the time when it passes over the brush, it is covered up so as not to be easily reached. After leaving the brush, it passes over an open space five inches wide, and then over a smooth iron plate seven inches wide, and then under the knives. There was testimony on both sides, which was uncontradicted, that the cloth moves about two feet in three seconds; that the proper place to guide the cloth and smooth out the wrinkles is at certain points where the cloth passes over the rod; and that, if a wrinkle should come on the plate, the proper thing to do is to throw back the rotating cylinder, and allow the cloth to pass through uncut', or to stop the machine. The plate was about five feet wide; and the cloth on which the plaintiff was working was three feet wide.</p> <p>The plaintiff testified that he was first engaged by the defendants on September 15,1883, having never before worked in mills of any kind; that he was employed in tying up cloth, and in various departments, before he was put at this machine, and had been employed at this machine about two weeks in all, off and on, at the time of his injury; and this testimony was not contradicted. He also testified that he was instructed by the defendants’ superintendent, who was foreman of his room, to guide the cloth with his left hand between the iron plate and the brush, and keep it smooth at one or the other of certain points in the open space of five inches above referred to, and, in case of wrinkles, to take them out with his right hand on the roller, and that he was told to look out for the knives; that he was told to look out and not put his fingers under the shears; that he told the superintendent he would look out, and that that was all the warning of danger which he received ; and that he knew that one Thompson cut the first joint of his finger off with the machine before this accident. On cross-examination, he testified that he did not know that his hand would be drawn in by the moving clqth; and that he had no idea it would go up with the cloth. The defendants introduced evidence contradicting the plaintiff as to the instructions given.</p> <p>The plaintiff further testified, that, at the time of the accident, while standing at the left-hand side of the machine, he saw a fold coming under one of the rollers; that he at once walked across to the right-hand end of the machine; that while guiding the cloth over the iron plate, with his left hand raised above his head, he attempted to pull out the fold on the roller above referred to under the machine with his right hand, and that, while looking down at his right hand and at the roller under the machine, his left hand was drawn into the knives and two of the fingers cut off; that his right hand was three and a half feet from his left hand; that, though he knew the knives were dangerous, the special danger of his hand being drawn in by the rapidly moving cloth did not occur to him. The knives were open to view, and had no guard of any kind, and the plaintiff-testified that he saw them; that to put his fingers against the knives from the front of the machine he had to extend his arm about its full length; and that the knives were about the level of his chin.</p> <p>The plaintiff then introduced evidence as to the proper manner of using the machine (which the defendants’ witnesses confirmed), and as to the danger of using it in the manner in which the plaintiff testified he was instructed to use it.</p> <p>Charles Carr, who had been a mechanical engineer for twenty-five years, and a builder of machines for over thirty years, and had seen these machines in operation, then testified that it was not safe to put the hand on the iron plate with the cloth travel-ling at the rate of a foot a second.</p> <p>The plaintiff then proposed to ask him the following question: “ State whether or not, in your opinion, the danger of the operative’s hand being drawn under the knives, if placed upon the cloth, or in the neighborhood of the plate, to smooth out a wrinkle or to guide the cloth, is a danger which would be obvious to an inexperienced operative.” This question was excluded.</p> <p>The plaintiff then proposed to ask the witness if he had ever seen guards on these machines. This question was also excluded.</p> <p>The plaintiff then proposed to ask the witness his opinion as an expert, as to whether guards should be used on these machines. This question was also excluded.</p> <p>The plaintiff then proposed to ask the witness if these machines came from the manufactory provided with guards, to be used or not, as the owners of the machines might choose. This question was also excluded, but the judge stated that he did not rule beyond this exact question, namely, whether these machines as manufactured are supplied with guards covering the knives; that if there was any evidence that 'this machine was supplied with a guard which the defendants took off, that would be another kind of fact; and that he did not understand that the plaintiff offered any such testimony.</p> <p>The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>