Volume 145 — Massachusetts Reports

The eirst case was an action for money had and received, brought by the owners of a building in Boston against a lessee of a part of the building, to recover a sum of money which the lessee had received from a person whom he had allowed to place a sign on the outer wall of the part of the building leased to the defendant; and the case proceeded on the ground that the outer wall did not pass by the lease, but remained in the possession of the owners.

<p>A trustee pledged to a bank certain shares of stock belonging to a trust estate as security for the payment of a debt due from him to the bank, the certificate and the assignment of the shares showing that it was held in trust. The bank was subsequently organized as a national bank, received the shares, and, at the request of the trustee, sold the shares and applied the proceeds on the debt, the trust estate receiving no benefit therefrom. The trustee was removed and a new trustee appointed in his place. A surety on the original trustee’s bond was compelled, in an action upon the bond, brought in the name of the judge of probate, to pay to the trust estate the value of the stock. Held, that the surety was subrogated to the rights of the new trustee and of the cestuis que trust, and could maintain a bill in equity against the national bank to recover the amount so paid by him.</p> <p>A. became a surety on a trustee’s bond in 1855. The only account rendered by the trustee in the Probate Court was allowed in 1856, but he from time to time rendered accounts to the cestuis que trust, and paid to them the balances appearing to be due. In 1858, A. received from the trustee certain security, which was believed by all parties to be ample, and which A. surrendered upon being discharged from the probate bond in 1869. In 1864, the trustee pledged to a bank certain stock belonging to the trust estate as security for the payment of a debt due from him to the bank. The certificate and assignment of the stock showed that it was held in trust. In 1867, the bank, at the request of the trustee, sold the stock and applied the proceeds on the debt, the trust estate receiving no benefit therefrom. The trustee was afterwards removed, and a new trustee appointed in his place. It appeared by the accounts rendered by the original trustee that the stock was held by him, and the cestuis que trust did not know.of the breach of trust until August, 1877. In November, 1877, before the removal of the original trustee, an action was commenced upon his bond by order of the Probate Court for the benefit of the cestuis que trust, which was prosecuted by the new trustee. A. defended the action, on the ground that he had been released as surety, but judgment was rendered against him, in 1882, for the penal sum of the bond ; and execution issued for the value of the stock, which was paid by A. In 1884, after such payment, A..brought a bill in equity against the bank to recover the amount so paid by him. Held, that the statute of limitations was not a bar to the suit; and that there was not such ladies as would prevent A. from recovering.</p>

<p>It seems, that the Pub. Sts. c. 171, § 1, providing that “ the court may enter up judgment upon default at any time after four days from the day of default,” do not apply to proceedings upon a complaint under the bastardy act, Pub. Sts. c. 85; and that a judgment in such proceedings is not irregular because entered on the day of a default.</p> <p>If the respondent in a bastardy complaint appears and answers, and is defaulted because not present when the case is called for trial, and judgment is entered on the default, and he did not intend to make default, and his absence is reasonably explained, and if, at a hearing upon his motion that the judgment be vacated, made at the same term of the court at which the judgment was entered, he shows circumstances from which the judge finds that the judgment ought to be vacated and a trial allowed, it is within the authority of the judge to find that the judgment was rendered by mistake, and to bring forward the ease and vacate the judgment.</p>

<p>If the keeper of a livery stable, who, upon learning that a horse in his stable belongs to another person, notifies the owner that the horse is there, and states the amount due for its board, refuses, upon the demand of the owner a few weeks later, to deliver the horse to him unless the whole bill for its board is paid, he waives whatever lien he may have for the board of the horse after the notice to the owner.</p> <p>In an action for the conversion of personal property, a mortgage of the property to the plaintiff, purporting to be executed in the name of a corporation by its president and under its corporate seal, is sufficient prima facie evidence of the incorporation, and of the authority of the president to execute the mortgage.</p>

<p>Contract, with counts in tort.</p> <p>The fourth and fifth counts, upon which alone the trial proceeded, were as follows:</p> <p>Fourth count. “ The plaintiff says that early in the year 1880 the defendant promoted, organized, and set up a bubble company, called the Dennett Dental Nabob Company; that said company was pretended to be organized under the laws of Connecticut, and was pretended by the defendant to have a capital of $1,000,000, fully paid up; that the defendant having offered to sell to the plaintiff six hundred shares of the capital stock of said corporation of the par value of $25 a share, did, with intent to deceive and defraud the plaintiff, falsely and fraudulently represent to him that the capital stock of said company was $1,000,000; that it was all paid in; that said stock was of the market value of $15 a share; that it was in great demand at that price; that all the treasury stock of said company ¿ould be sold at that time for $15 a share; that it had sold at that price until the company had funds enough on hand in its treasury, and it had now refused to sell any more at $15 a share, and had advanced the price to $20 a share; that he had paid all charges, calls, and assessments laid or to be laid upon said shares by said company or the directors thereof; that said company was in a sound financial condition, and that it had property which made the stock then worth $15 a share, and had made such business contracts and engagements as would insure a rapid advance beyond said price ; that the defendant was the 'president of said company, and knew that said company was solvent and responsible, with large business, and that it was a safe and profitable investment at $15 a share. And to further induce the plaintiff to purchase said stocks, the defendant offered and proposed to borrow from the plaintiff the sum of $8000 as a loan, and deliver to the plaintiff six hundred shares of said stock, as security for said loan, and gave the plaintiff the right to purchase said six hundred shares at $15 a share, or to return said stock to the defendant at the plaintiff’s election; and the defendant agreed, if the plaintiff elected to return said stock, to repay the said $3000 and interest on the same, during the continuance of the loan, until the plaintiff should make his election.</p> <p>“ And the plaintiff says that, relying upon said representations of the defendant, and believing them to be true, on or about the first day of June, 1880, he loaned the defendant the sum of $1000, upon the terms so proposed by the defendant; but that the defendant wholly neglected to deliver the plaintiff the six hundred shares of said stock, or any shares, and that the plaintiff received none of said stock until October, 1880; that in truth, and as the defendant then well knew, all ,the representations made by the defendant to the plaintiff were false, and were made solely with intent to deceive and defraud the plaintiff, and to get possession of the plaintiff’s money. And the said Dennett Dental' Nabob Company was a bubble company, and organized fraudulently, without any capital whatever; that no capital was ever paid in; that it never had so much as $1000 in its treasury at any time; that its stock was worthless, and never had any market value, or any value whatever; that it never sold for $15 a share, unless by fraud, and deceit, and not at a fair sale in the open market; that it never had any business; that it was never upon a sound financial basis, but, on the contrary, the said company was then insolvent and the stock worthless; all of which the defendant then well knew.</p> <p>“ And the plaintiff says that in October, 1880, the defendant delivered him 1000 shares of said stock, instead of six hundred shares, as he had agreed, but wholly neglected and refused to give the plaintiff an agreement in writing, setting forth the terms upon which the plaintiff held said stock, though often requested so to do. And plaintiff says that said stock was worthless, and no security; and that he was misled and defrauded by the defendant ; that he has tendered back said 1000 shares of stock to the defendant, and demanded a return of his said $3000 and interest, but the defendant wholly neglects and refuses to return the same.”</p> <p>Fifth count. - “ And the plaintiff says that about the twenty-fifth day of April, 1881, at Boston, the defendant having done all the acts, matters, and things mentioned in the fourth count, and made the representations therein set forth, and being then indebted to the plaintiff in the sum of $3000 and interest, obtained solely in consequence of said representations, took the plaintiff to a certain parcel of real estate in the Dorchester district, and then and there falsely represented to the plaintiff that he was the owner of said parcel of real estate; that he had made arrangements to dispose of part of it, at a large profit, which would enable him to repay the plaintiff said $3000 and interest; that a payment was due on said land in a few days which must be made before he could carry out the trade and get the money to repay the plaintiff; and then and there proposed to the plaintiff that the plaintiff should take 1000 shares of stock in said Dennett -Dental Naboli Company, and raise $2000 for the defendant to make said payment, so the defendant could carry out the trade and repay the plaintiff.</p> <p>“ And the plaintiff says that, at the defendant’s request, and relying on all said representations, he was thereby induced to take said 1000 shares of stock and borrow $1400 on four months’ credit, with a pledge of said stock as collateral, which was all the money he could-raise on said 1000 shares, and so notified the defendant. That the defendant received said $1400 from the plaintiff on or about May 2, 1881, and agreed to pay the notes at maturity, on which said sum was raised by the plaintiff for the defendant at the defendant’s request; that the defendant failed to pay said notes at maturity, and the plaintiff was thereupon compelled to pay them, and did pay them, and redeemed said stock pledged as collateral; that he has tendered said stock to the defendant and demanded said $1400 and interest, but the defendant neglects and refuses to repay the'same.</p> <p>“ And the plaintiff says that all the representations made by the defendant were false, and were known by the defendant to be false when they were made, and that they were made solely for the purpose of defrauding the plaintiff and getting possession of the plaintiff’s money; that the Dennett Dental Nabob Company was a bubble company, gotten up by the defendant without any capital, credit, property, or business; that the defendant used the stock for his own purposes to raise money for himself; that none of the proceeds came to the company; that this expedition to the Dorchester district was part of a scheme to further defraud the plaintiff and get possession of more of his money, and not with any intention of repaying the previous indebtedness ; and the defendant had not made any arrangement to dispose of any part of said land with intent to repay the plaintiff, but then designed and intended to cheat and defraud the plaintiff out of such sum as he might be able to raise by a pledge of said worthless stock, holding out to him the illusive hope that, by raising more money for the defendant, he would thereby enable the defendant to repay the indebtedness theretofore contracted.”</p> <p>After the former decision, reported 141 Mass. 207, the case was tried in the Superior Court, before Dewey, J. The jury returned a verdict for the defendant on the fourth count, and for the plaintiff on the fifth count in the sum of $1866; and each party alleged exceptions, which appear in the opinion.</p>

<p>A corporation, having large tracts of unimproved lands, for the purpose of borrowing money to discharge existing liens upon the lands and to make them available for sale, issued bonds, the interest on which was payable semiannually, and, as security for the payment of principal and interest, conveyed its lands to trustees on the following trusts: 1. To permit the corporation to remain in possession, improve and sell the lands, until default should be made in the payment of the bonds, or the interest thereon. 2. To release from time to time from the lien created by the conveyance such portions as, in the opinion of the trustees and of the president of the corporation, might be safely released without impairing the security for the payment of the bonds. 3. To receive and invest the moneys received from the proceeds of sales of said lands, and to pay therefrom interest due on the bonds and the expenses of the trust, and to apply the residue to the purchase and cancellation of the bonds. The deed further provided that, in case default should be made in the payment of the bonds or of the interest thereof, and for six months thereafter, all the bonds should become payable ; that the trustees then might, and upon the request of a certain number of the holders of the bonds should, enter and take possession of the granted premises, and should thereafter, as attorneys and agents of the corporation, “ so long as said default shall continue,” so manage and dispose of the same as to carry out the purposes of the trust, either by sales of the lands in their then existing condition, or by improving the same and thereafter selling them, with the largest discretion as to quantity, time, notice, and mode of sale, as they might deem reasonable and “for the best interests of all parties concerned in the trust; ” and that the trustees, after applying any surplus proceeds of sales to the payment of the bonds, “ shall restore the residue thereof, and all lands, securities, and other property remaining in their possession after such payment is completed,” to the corporation, “and thereupon this trust shall terminate.” The corporation covenanted that, in case of default continuing for six months, it would, on the request of the trustees, deliver up possession of the granted premises, and make any further conveyance required; and it was “further mutually agreed that, upon payment of the principal and interest of said bonds, the conveyance herein made, and the estate and interests hereby granted ” to the trustees, “ shall be void,” and the right to the lands conveyed should revert to the corporation. Held, on a bill in equity by the bondholders, that the provisions of the deed were inconsistent with a right on the part of the trustees to treat the instrument merely as a mortgage, and to foreclose by entry and lapse of time.</p>

<p>Tort for personal injuries sustained by the plaintiff, on December 17, 1883, by falling into a coal-hole in the sidewalk in front of a house on Wall Street, in Boston. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence tending to show that the plaintiff, while in the exercise of due care, fell into the coal-hole in question. It was admitted that Wall Street then was, and for many years had been, a public street of the city of Boston; that said premises were conveyed to the defendant on November 3, 1883, by virtue of a power of sale contained in a mortgage of said premises, for the purpose of foreclosing said mortgage; that said premises had been conveyed, subject to said mortgage, to Daniel Breslin, on April 20, 1875, and he occupied the same from that date till after this accident; that he quitclaimed said premises to the defendant on November 9, 1883; and that the defendant was the owner of the premises at the time of the accident.</p> <p>Breslin testified that he remained at a rent of $41.67 per month; that the defendant was to give him $25; that the defendant permitted him to remain and pay the rent because the defendant had not paid the $25. It appeared in evidence that Breslin remained in occupancy of said premises, under said oral agreement, from November 3, 1883, till some months after the injuries complained of.</p> <p>One Durnan, a witness for the plaintiff, testified that, after assisting the plaintiff to her home, a few rods distant, he went back and examined the coal-hole, and that there was no chain on the cover, only a three-strand rope about three quarters of an inch thick; that the bed on which the cover lay had filled up with snow and dirt; and that it was liable to slip from the way it was fastened. He also testified, on cross-examination, that the bed-piece, or stone surrounding the coal-hole on which the plate or cover rested, was well worn, chipped off, and broken at the edges; and that it appeared to him this had been so a long time, so that, whether tied or untied from the inside, the cover, on being stepped on, would tip up. It also appeared in evidence that the bed had not changed in this respect during the tenancy.</p> <p>The evidence tended to show that, on the day immediately following the injury, the' coal-hole was repaired by some one other than the tenant, by cutting away the broken edges of the bed-piece and setting the cover deeper in the stone.</p> <p>On the whole evidence, the judge ruled that the action could not be maintained; and ordered the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Bill in equity, filed January 1, 1886, by one of two executors of the will of Arria Cotton, against the Atlas National Bank and Frank B. Cotton, co-executor of said will, to compel the defendant bank to account for and pay over to Frank B. Cotton and the plaintiff, as co-executors of said will, all moneys received by the bank from the sale of certain stocks and from dividends thereon, and from checks drawn by Frank B. Cotton as executor of said will upon the funds of the estate of Arria Cotton deposited with said bank, and to transfer to Frank B. Cotton and the plaintiff, as co-executors of said will, the stocks pledged by her to secure the note of Frank B. Cotton; and to restrain the bank and Frank B. Cotton from transferring and paying over said moneys and stocks to any person except Frank B. Cotton and the plaintiff jointly, as co-executors of said will, and from meddling with the same or exercising any power or authority over the same; and for further relief. Hearing before W. Allen, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>A warrant for a town meeting contained an article “to see if the town will choose the selectmen surveyors of highways,” and an article “ to choose all necessary town officers,” naming those who were to be chosen by ballot, including selectmen, assessors, and overseers of the poor, and -adding “ all of said votes to be on one ballot.” Held, that the town might vote to “ choose the selectmen surveyors of highways,” and “ to proceed to ballot for five selectmen who shall also be assessors, overseers of the poor, and highway surveyors.” Held, also, that ballots subsequently, cast for separate boards of selectmen, assessors, overseers, and surveyors could be rejected except so far as they contained the names of persons voted for as selectmen; and that they were to be counted for such persons.</p>

Bill in equity, filed October 13, 1884, by the holder of a policy of life insurance issued by the defendant corporation, alleging that by the terms of the policy the defendant had constituted itself his trustee for his share of all accumulations of a certain fund, and praying for an account. Hearing before Holmes, J., who reported the case for the consideration- of the full court. The facts appear in the opinion.

Tort for personal injuries. At the trial in the Superior Court, before Blodgett, J., it appeared that the defendant owned a horse railroad on Elm Street, in Somerville, which connected with the horse railroad of the Cambridge Railroad Company; that on November 30, 1882, the same was used and operated by the Union Railway Company under certain leases and contracts ; and that on said day the plaintiff was a passenger upon a car of the Union Railway Company, and received the…

<p>Contract against the administrator with the will annexed of the estate of Mary Chism, deceased, upon an agreement alleged to have been made by her with the plaintiff, on or about-May 23, 1878, to bequeath to him by her last will the sum of $5000, and pay his expenses of a journey to California and Nevada in accompanying her there in the fall of 1878; and also upon an account annexed for services in managing her property, in accompanying her to California and Nevada, and for cash paid by him as expenses on said visit.</p> <p>The case was referred to an auditor, who made the following report:</p> <p>“The defendant is administrator with the will annexed of Mary Chism, deceased. Prior to 1853, Mary Chism, with two sisters, Charlotte and Octavia, kept a boarding-house in Boston. The plaintiff had boarded with them, and in 1853 he married Charlotte Chism. After their marriage the plaintiff and his ' wife continued to board with Mary Chism during the greater part of the time until the death of said Charlotte.</p> <p>“ About 1862, the two sisters, Mary and Octavia, had acquired by inheritance and their savings about $4000, which sum, by advice of the plaintiff, was withdrawn from savings banks and invested in United States bonds.</p> <p>“ Octavia Chism died in August, 1863, and her share in said bonds came into the possession of Mary Chism. In July, 1866, by advice of the plaintiff, Mary Chism invested the proceeds of said United States bonds in the equity of real estate on Bowe Street, afterwards Chauncy Street.</p> <p>“ While Mary Chism was owner of the equity of the Chauncy Street estate, and when there was a prospect of making a profit upon it of about $10,000, she told the plaintiff that if such profit was made by him he should have one half, or a part of it.</p> <p>“ In April, 1868, the equity of the Chauncy Street estate was sold at a profit of $10,000; this sale was negotiated and advised by the plaintiff. Shortly after this sale had been made, Mary Chism told the plaintiff, if he would go on and act as her agent and adviser respecting her investments, she would make a will, giving the plaintiff’s wife a legacy of $5000; and, in the event of the plaintiff’s wife dying before the plaintiff, she would then by a new will or codicil bequeath the legacy of $5000 to the plaintiff. The plaintiff assented to said arrangement, and, a day or two after this conversation, Mary Chism executed a will containing a legacy of $5000 to Charlotte, wife of the plaintiff.</p> <p>“ After the execution of said will, and while it was unrevoked, in June, 1868, Mary Chism purchased an equity in real estate in Washington Street, and sold it at a profit in January, 1869. In January, 1869, the plaintiff intended to purchase on his own account the equity of an estate in Bedford Street, and applied to Mary Chism to borrow 12000, to be used in such investment; she expressed the wish to join in the transaction, and the plaintiff assented. They agreed that she should advance all the money, and, after receiving seven per cent interest thereon, the profits should be equally divided. She did furnish the money, and the title was taken, and mortgage given, in her name. After paying her the seven per cent interest, the profits of this investment were between $4000 and $5000, and were equally divided. The estate was sold, part in 1873, and the balance in 1874. In 1876 she purchased the equity of an estate in Mt. Vernon Street, which she retained at her death. All the above-mentioned purchases and sales of real estate were negotiated and advised by the plaintiff, and made solely upon his judgment.</p> <p>“In June, 1878, the plaintiff’s wife, Charlotte, died. A few weeks before her death, and when it was apparent that she was fatally ill, Mary Chism, with the knowledge of said Charlotte told the plaintiff that she desired to visit California, and a brother who resided in Nevada, and that, if the plaintiff would accompany her there in the fall of that year, she, in consideration of his so accompanying her, and of the services he had rendered, and might thereafter render her, respecting the management of her property, would make, a will giving him $5000, and pay his expenses of the journey. The plaintiff assented thereto; and, thereupon, in May or June, 1878, Mary Chism destroyed the will before mentioned, and executed a new one, wherein she gave the plaintiff a legacy of $5000. At this time Mary Chism’s property was about $23,000, and it had been acquired largely by the advice and management of the plaintiff; and I find that the plaintiff’s advice was valuable and his management judicious, and were given and rendered whenever requested or required, and he has received no compensation therefor, except as stated respecting the Bedford Street property.</p> <p>“In the fall of 1878, and the winter following, the plaintiff accompanied Mary Chism to Nevada and California, and then and thereafter in all respects complied with and fulfilled the aforesaid agreement. And I find that the items of cash paid by him for expenses of the journey, alleged in the account annexed to the declaration, and amounting to $473.24, were incurred by him, and are reasonable, and should be allowed.</p> <p>“ Mary Chism died, October 18, 1883, without issue and unmarried, leaving a will, revoking all former wills, dated December 20, 1880, which was admitted to probate on November 12, 1883, and contains no legacy to the plaintiff.</p> <p>“ Whether or not, upon the facts stated in this report, the plaintiff is entitled to recover any greater sum than said $473.24, is reserved for the ruling of the court.”</p> <p>At the trial in the Superior Court, before Bacon, J., the plaintiff put in evidence the report of the auditor, and rested.</p> <p>The defendant thereupon called the plaintiff, who testified that he was married again in November, 1879; that he did not inform Mary Chism, beforehand, of his intended marriage; that there was no occasion of his doing so; that he did inform her thereof, by a messenger, on the day of the marriage; and that she was not present at the ceremony; nor was any one else, except the necessary parties.</p> <p>There was no other evidence in the case; and, upon the evidence, the judge found for the plaintiff in the sum of $473.24, with interest from the date of the writ, for the expenses of the plaintiff on his journey to California and Nevada. To this finding the defendant alleged exceptions.</p> <p>The judge further found, that the facts stated in the auditor’s report did not sufficiently show that a binding agreement was entered into by Mary Chism with the plaintiff to make a will in his favor; and that the agreement declared upon, whereby she was to bequeath to him by her last will the sum of $5000, was not proved, as alleged; and upon these issues found for the defendant. The judge also found for the defendant upon the items of the account annexed for services rendered in the management of said Mary Chism’s property, and in accompanying her on a visit to California and Nevada. To these findings the plaintiff alleged exceptions.</p> <p>The judge reported the case for the determination of this court.</p>

Tort for the obstruction of an ancient watercourse, described in the declaration as an “ ancient rivulet or stream,” which had existed beyond the memory of man. Answer, a general denial.

<p>Bill ir equity, filed February 1, 1887, by the trustees under the will of Samuel Dexter Bradford, late of Newport, in the State of Rhode Island, deceased, against Rebecca M. Brinley, formerly Rebecca M. Bradford, widow of the testator, and the three children of the testator, to obtain the instructions of the court as to the construction of the will.</p> <p>The case was heard by Holmes, J., and reserved for the consideration of the full court, on the bill, the answers of the several defendants, and certain agreed facts; and was as follows: Samuel D. Bradford, formerly of West Roxbury, the father of the testator, died in 1865, leaving an estate inventoried at $1,595,334. By his will, which was duly admitted to probate, he devised his homestead estate in West Roxbury to his widow for life, with remainder in fee to his two sons, Samuel Dexter Bradford and John H. Bradford. He also bequeathed the sum of $300,000 to trustees, in trust to pay the income to his widow during her natural life, giving her the power to dispose by will of $50,000 of the principal fund, and directing that at her death the residue of the fund should be paid into the “residuary fund ” of his estate.</p> <p>The residuary clauses of this will were as follows:</p> <p>“ All the rest and residue of my property and estate, of whatsoever kind and wheresoever situated, real, personal, or mixed, of which I shall die seised or possessed, or to which I shall be entitled at the time of my decease, or which may, by any means or cause whatsoever, be added to my estate, or come to my heirs or legatees through me, in my right, I give and bequeath to the trustees hereinafter appointed, to be held by them in trust for the following uses, purposes, trusts, and limitations, and no other, viz.: to pay such sums as they shall deem fit and proper for the support and education of my second son, John Henry Bradford, during his legal infancy, and when said son shall attain the age of twenty-one years then to divide the said property and estate mentioned in this item of my will into two equal parts or portions, in such way and manner as they shall deem just and equitable; one of such parts to be for the benefit of each of my sons, Samuel Dexter Bradford, Junior, and John Henry Bradford, and their heirs, and to be paid to them by the said trustees in the following manner, to wit, the part or portion of each of my said sons shall be divided into two equal parts, and one part or moiety be paid to him by the said trustees to be held by him, his heirs and assigns forever, and the other part or moiety shall be held by the said trustees, and the income and interest thereof, as it may accrue, be paid over to him, or his wife or family, if he have any, as the said trustees shall deem proper and expedient, during his natural life, and at his'decease the last-mentioned part or moiety to be paid over to such person or persons, and under such limitations, regulations, and conditions, as he shall by his last will and testament direct and appoint, if he shall leave such an instrument; and if he shall not leave a last will and testament, then to be paid to his children if he leaves any, in equal proportions, share and share alike.</p> <p>“ In case either of my sons shall decease leaving no issue, and having made no testamentary disposition as aforesaid, then I direct the said trustees to transfer all the funds in their hands belonging to the deceased son to the surviving son, to be paid over to him, his wife, family, legatees, or heirs, in the same way and under the same conditions as are heretofore provided for in regard to his own share of my estate.”</p> <p>On January 12, 1873, Samuel Dexter Bradford, the son, died in the city of New York, leaving a will, duly executed at Newport on October 26, 1872, which was admitted to probate on February 2, 1876, in the county of Norfolk in this Commonwealth; and the plaintiffs were appointed trustees thereunder on July 14,1886. The testator left a widow and three children, all of whom are now living and are over twenty-one years of age. His will contained the following clauses:</p> <p>“ Article 1. Except as otherwise provided in the subsequent articles of this will, I give, bequeath, and devise to my wife Rebecca the use, benefit, and enjoyment, during her natural life, of all the estate and property, real, personal, or mixed, whereof I may die seised or possessed, or to which I may-in any manner be entitled, either at law or in equity, of which I am authorized by my father’s will, or by any instrument, to dispose, or to direct or appoint the uses, ownership, payment over, distribution, or other disposition, by my last will or otherwise ; and I direct and appoint the said Rebecca to receive, have, and enjoy, for her own use and benefit, during her natural life, the income of the estate and property devised and bequeathed by my father’s last will for the benefit of myself and my family, or of any other person, whereof I am authorized by my father’s will or by any instrument to dispose of the income, or to direct or appoint the uses, ownership, payment over, or other disposition of such income, and which is not included in the foregoing devise and bequest to her of a life estate or life interest therein. And if, for any reason, any of the devises, bequests, appointments, or directions contained in any of the subsequent articles of this will are wholly or partly prohibited by the law governing the same, or are insufficiently made to take effect as therein intended, then I give, devise, and bequeath to the said Rebecca the use, benefit, and enjoyment, during her natural life, of all the property with respect to which such devise, bequest, appointment, or direction is thus prohibited or insufficiently made, or I appoint the income thereof to be paid to her during her life, according as my power to dispose of or with respect to the same extends.</p> <p>“ Article 2. I give and devise to my said wife Rebecca, to be held and enjoyed by her, her heirs and assigns forever, as her own absolute property, the dwelling-house and all the adjacent land at Newport, Rhode Island, constituting my residence and homestead, and all my interest, right, or title therein or thereto, either at law or in equity. And I give and bequeath to her, as her absolute property, all ready money on hand at the time of my decease; all debts, claims, and demands, due to me; all securities owned by me personally, as distinguished from those held in trust for me ; together with all horses, with their. harnesses and equipments, all carriages and other vehicles, all wearing apparel, watches, jewelry, and other ornaments, all paintings and other works of art, all books, all silver ware, plated ware, china, glass, carpets, linen, and household furniture of every description which I own, or am entitled to dispose of.</p> <p>“ Article 3. Whereas, by the terms of my father's will, certain property, real and personal, including his homestead at West Roxbury, Massachusetts, is bequeathed and devised to be held in trust or otherwise, for the benefit of my mother, during her lifetime, and one half of the «same or of the proceeds thereof may be disposed of by me, subject to her interest therein or the trusts for her benefit; I do therefore order, direct, and appoint that if my said wife is living at the time of my mother’s death she shall have the use, benefit, and enjoyment of that part of said property which is thus liable to be disposed of by me, or of the income thereof, if my power extends no further than to dispose of the income, till the eldest of my children who survives me attains his or her majority. When that event happens, if she is still living, my executors are hereby directed to set apart, out of the said property, a fund for the benefit of said child, consisting of money or securities, or partly of money and partly of securities, to the amount or value of one hundred thousand ($100,000) dollars. When my second child who survives me attains his or her majority, my said executors are directed to set apart for his or her benefit a similar fund of one hundred thousand dollars ; and so on in succession, as each child attains his or her majority, until a fund of the amount or value of one hundred thousand dollars has been set apart for each of my children who attains majority. My said wife shall continue to have the use, benefit, and enjoyment of the remainder of the property, or of the income of such remainder as the case may be, as each successive fund is set apart, (and of the remainder, after all the funds are set apart,) during her lifetime as aforesaid. And I order, direct, and appoint that at any time after my mother’s death my said wife may give to any of my children, or to any issue of such child, absolutely and indefensibly, any part of the capital of the property mentioned in this or in the first article of this will, except such portion thereof as may have been set apart to constitute any of the funds mentioned in this article, or which it is necessary to retain in order to constitute all of said funds. And every division to be afterwards made, as hereinafter provided, shall be made without reference to such gift, the residue only being divided.</p> <p>“ Article 4. Immediately after the death of my said wife, my surviving executors are directed to divide all the estate and property mentioned in any part of this will, except that mentioned in the second article thereof, into as many shares as I shall leave children me surviving, who have also survived till their mother’s death, or who have died and left issue surviving at that time. If my mother dies before my wife, any of the funds which have been set apart as provided in the third article of this will shall be accounted part of the share to which the child or the issue of the child for whom it was so set apart would be entitled at my wife’s death ; but it shall not again be divided as part of the estate mentioned in this article. If, on the other hand, my wife dies before my mother, the division provided for in this article shall be made without reference to the property bequeathed and devised by my father for my mother’s benefit, as stated in the foregoing third article; and after my mother’s death that portion' of said property which is subject to my disposition, as therein stated, shall be divided into as many shares as I shall leave children me surviving, who have also survived till their grandmother’s death, or Avho have died and left issue surviving at that time. And in order to enable them the better to make the division or divisions herein provided for, and to discharge their powers and duties under this will, I hereby bequeath and devise to said executors and the survivor or survivors of them, in trust for the purposes herein mentioned, all the property mentioned in this will, except in the second article thereof, subject to the life estates and interests of my said wife and mother respectively.</p> <p>“ Article 5. Every fund or share to be created or set apart as hereinbefore provided for shall be equal in value or amount, in my executors’ judgment, to every other fund or share to be created or set apart at the same time. Every fund or share created or set apart for the benefit of the issue of a deceased child shall be immediately paid, delivered, or transferred to such issue. Every fund or share created or set apart for the benefit of a child who is then living shall be held and managed by my executors, during the lifetime of that child, in trust to invest and reinvest the same, and to pay over the clear income thereof, deducting expenses, to that child, as the same accrues, and not otherwise, the anticipation of any such income being hereby expressly prohibited. At his or her death, leaving surviving issue, such issue shall take absolutely the capital and unexpended income of such fund or share. But if such child leaves no surviving issue, he or she may dispose of the capital and unexpended income by a last will and testament, but not otherwise. In default of any such disposition, such capital and unexpended income, or the part thereof not disposed of, shall be equally divided between my other children then surviving and the surviving issue of those who may be dead. Such issue to take the share to which the parent would have been entitled if living.</p> <p>“ Article 6. Whenever the issue or surviving issue of any deceased child is mentioned in this will, descendants of all degrees are included ; and the issue of any deceased descendant shall take by representation and in severalty the share which the parent would have taken if living.</p> <p>“ Article 7. If my said wife shall marry again, no property or income to which she is entitled by any portion of this will, except the second article thereof, shall be received by her husband, or liable for her debts or the debts of her husband.</p> <p>“ Article 8. I appoint my said wife to be the guardian of my children, and I desire that my said children make my mother’s house their home during their minority, and my daughters afterwards, except in the event of their marriage. But I wish my eldest daughter, Julia Emma, to continue to live with my mother until the death of the latter.”</p> <p>The real estate in West Roxbury, mentioned in article 3 of the will, was conveyed by the testator in fee to his mother, Julia E. Bradford, long prior to the date of said will, and the real estate mentioned in article 2 of the will, situate at Newport, was conveyed by the testator, long prior to the date of the will, to Arthur W. Austin, in trust for the creditors of said testator and for other purposes.</p> <p>Julia E. Bradford, the mother of the testator, died on August 15, 1886, leaving a will, which was duly admitted to probate, and by which she exercised the power given her by the will of her husband, and disposed of the sum of $50,000.</p> <p>The plaintiffs have received, as trustees, from the residuary estate of Samuel D. Bradford of West Roxbury, the sum of $389,101.43. This sum includes $125,000 which the trustees received from the trust fund of $300,000 created by the will of said Samuel D. Bradford. Rebecca M. Brinley has received no property absolutely under the will of her- husband, except some household property; but she has received since January 1,1876, the income of one quarter of the residuary estate of Samuel D. Bradford of West Roxbury, amounting since the death of her husband to the sum of $156,278.89.</p>

Tort, by the administrator of the estate of Frank E. Bliss, under the Pub. Sts. c. 52, § 17, for the loss of the life of his intestate on April 22, 1885, occasioned by an alleged defect in Grant Street and Bridge Street, in South Hadley.

Tort, to recover the penalty provided by the Pub. Sts. c. 100, § 25,* for selling intoxicating liquors to Isaac N. Taylor, the father of the plaintiff.

<p>At the trial of an indictment for adultery, the evidence was conflicting upon the question whether the parties named in the indictment had occupied the same room; and the judge instructed the jury as follows: “ If they occupied together the room known as the parlor, that is evidence enough to warrant you in finding adultery. That is as strong evidence as is usually found in adultery cases.” This being excepted to, the judge said, “I withdraw those instructions and instruct tile jury as follows: If a married man is found with a woman not his wife in a room with a bed in it, and stays through the night with her there, that is sufficient to warrant a finding of adultery against him.” Held, that the defendant had no ground of exception.</p> <p>Under the Pub. Sts. c. 163, § 12, the judge presiding at the trial of a criminal case may, before exceptions taken to his rulings are reduced to writing and filed, pronounce them frivolous and intended for delay, and proceed to sentence the defendant.</p>

<p>A complaint on the Pub. Sts. c. 98, § 2, for unlawfully keeping open a shop on the Lord’s day, need not negative the exceptions contained in the St. of 1887, c. 391, § 2.</p>

<p>At the trial of a complaint, under the Pub. Sts. c. 100, § 17, alleging that the defendant brought into a certain city spirituous and intoxicating liquors, he having reasonable cause to believe that such liquors were intended to be sold in violation of law, the evidence showed that the defendant brought into the city from a certain town various packages of liquors, some of which were consigned to one D. Held, that evidence of a police officer of the city, as to his search of D.’s place three days before the date of the defendant’s alleged oSence, as to what he found there, and as to D.’s acts and conduct, was competent. Held, also, that it was competent for the government to show, on the issue whether the defendant had reasonable cause to believe that D. intended to sell such liquors in violation of law, that, on the day of the alleged offence, D. was generally known and reputed to be a dealer in intoxicating liquors at his place.</p>

<p>A conviction on a complaint for keeping and maintaining a tenement for the illegal sale and illegal keeping of intoxicating liquors from August 1 to October 4, is a bar to a complaint for keeping the same tenement for the same purpose from May 1 to November 17 of the same year; and the government has no authority to enter a nolle prosequi as to so much of the ofience as is charged in the second complaint to have been committed prior to October 5.</p>

Complaint to the Third District Court of Plymouth, on the Pub.

<p>Tort, by the executor of the will of Erastus Nash, for personal injuries occasioned to the testator by a defect in a highway in the defendant town. Trial in the Superior Court, before Mason, J., who ruled that the action could not be maintained, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Section 4 of the St. of 1849, c. 96, (which statute incorporated the Trustees of the Smith Charities,) providing that the funds of the corporation shall, for the purpose of taxation, “ he equally apportioned among the eight towns named in said will, .... or such of them as shall not have forfeited their rights therein; and said apportionment shall be made, and the assessors of each of said towns shall be notified of the same by the trustees provided for in said will, on or before the first day of May annually; and the portions of said funds thus assigned to the said towns respectively may be assessed therein, in all the taxes legally voted and assessed by said towns,” is constitutional.</p>

<p>Petition, dated October 17, 1885, under tlie Pub. Sts. c. 176, to compel the respondent to bring an action to try its alleged title to a parcel of land in Greenwich. Hearing before Holmes, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>An action against a town for relief furnished a pauper cannot be maintained under the Pub. Sts. c. 84, § 27, except upon evidence of an express and formal notice to the overseers of the poor of the town, and a distinct request to them that the pauper be provided for.</p> <p>An action founded upon an implied contract will not lie against a town for relief furnished a pauper.</p> <p>In an action against a town for relief furnished a pauper, there was evidence that one of the overseers of the poor, in the absence of his associates, agreed to pay the plaintiff (a married woman then living with her husband, and with whom the husband’s father, a pauper, was then living) to take care of the father as long as he lived; that the father lived there until his death; and that the town paid the husband by the month for his support. Held, that the evidence was not sufficient to maintain the action.</p>

Complaint to the District Court of Southern Berkshire, on the Pub. Sts. a. 101, § 6, for keeping and maintaining a common nuisance, to wit, á certain tenement in Great Barrington, used for the illegal sale and illegal keeping of intoxicating liquors, on May 1,1886, and on divers other days and times between that day and October 12, 1886. At the trial in the Superior Court, on appeal, the defendant pleaded guilty ; and alleged exceptions, which appear in the opinion.

<p>On a complaint for selling intoxicating liquors,, there was evidence that there was a delivery of liquor by the steward of a club to one of the members of the club, who paid for it, in a city which had voted to grant licenses to sell intoxicating liquors; and books purporting to be the records of the club were put in evidence. The government contended that the club was organized to defraud the city of a license fee; and that the books and records were not genuine, were founded in fraud, and were gotten up to cover the illegal acts of the defendant. The judge instructed the jury, as requested by the defendant, that if the club was a bona fide club and the liquors owned in common by the members, and the members on receiving liquors gave money in return, it would not be a sale within the meaning of the statute; and that, “if two or more persons unite in buying intoxicating liquor, and then distribute it among themselves, they do not violate the statute, and the intent with which they do this is immaterial. If they intend in this manner to obtain intoxicating liquor to drink without thereby subjecting any person to the penalties of the statute, they still act with impunity.” The judge further instructed the jury, against the objection of the defendant, as follows : “ It is not a violation of law if they unite in good faith in dividing it. If two persons buy a gallon of liquor, and dividedt among themselves, they act with impunity; but if this is a mere device to cheat the government out of its license fee, and "prevent the due execution of law, it is not a protection, and the defendant does not act with impunity." Held, that the defendant had no ground of exception.</p>

Tort, against the owner of a building in Springfield, for personal injuries occasioned to the plaintiff by a fall down the elevator well in said building. Trial in the Superior Court, before Staples, J., who reported the case for the determination of this court, in substance as follows: The plaintiff testified as follows: “ I am a plumber. On May 12, 1885, I was hired by M. J. King, a tenant of a portion of the building, to do some work therein.

<p>Tort, under the Pub. Sts. e. 112, § 214,* for loss of the plaintiff’s goods by fire communicated by a locomotive engine of the defendant. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows :</p> <p>The defendant owns and operates a railroad in this Commonwealth. On March 30, 1887, the freight depot of the defendant at Chicopee was destroyed by fire. The fire was caused by sparks from the defendant’s locomotive engine, which set fire to bales of cotton standing on the platform of said depot.</p> <p>The fire thus kindled was communicated directly to said building, which was destroyed, with its contents, including the goods of the plaintiff, which consisted of numerous articles of household furniture and clothing for himself and family. The property of the plaintiff had been placed on board the cars at Providence, Rhode Island, where he had formerly lived, for transportation to Chicopee, where he had gone to live. The goods were all properly packed in seventy-seven different packages, and carefully covered, so as to protect them against the ordinary hazards to which such ^ goods are liable. The goods arrived at Chicopee on the defendant’s railroad, in due course and time, on Saturday, March 26, and were taken from the cars on the afternoon of that day by the servants of the defendant, and by them placed in said freight depot, where they remained until the building and the goods were destroyed by the fire, as above stated.</p> <p>Some time during the day on which the goods arrived at Chicopee, a teamster, not in the employ of the defendant corporation, nor under the direction or control of its agent at Chicopee, nor at the request or suggestion of such agent, told the plaintiff that some goods had arrived at said depot, which were directed to the plaintiff, and solicited the job of carrying the goods whenever the plaintiff was ready to have them removed. The plaintiff had no other information of the arrival of the goods, and was not asked or notified to remove the same.</p> <p>All these goods were shipped and arrived at one time, and the plaintiff had no other goods in course of transportation for Chicopee.</p>

<p>Tort, under the Pub. Sts. o. 112, § 214, for loss of the plaintiffs’ goods by fire communicated by a locomotive engine of the defendant. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>A beneficiary association was organized under the Pub. Sts. c. 115, §§ 2, 8, for the purpose of defraying the expenses of the sickness and burial of its members, and rendering pecuniary aid to the families of deceased members or to their heirs. The by-laws of the association provided, that, after payment of the expenses of the funeral and of the last sickness, the balance should be paid to the person designated by the member in his application for membership, or last legal assignment, provided such person was an heir or member of the decedent’s family, and, if either of the persons designated should die, the sum which would have been payable to him if he had lived should be paid to the widow of the designator for the use of herself and her minor children. A member of the association designated his wife as his beneficiary. She afterwards obtained a divorce from him, and he, after this, changed the designation to his son and to his married sister, the latter not being a member of his family and not dependent on him for support. Held, that the" wife, by obtaining a divorce, lost her rights under the designation; that the attempted designation to the sister was invalid; and that the son was entitled to the fund.</p> <p>A member of a beneficiary association-organized under the Pub. Sts. c. 115, §§ 2, 8, had certificates in.two classes, each for §1000. Before his death he designated his minor son as his beneficiary to the amount of $500, and his sister as his beneficiary to the amount of $1500. The latter designation was in fact invalid. On his death, the guardian of the son told the president of the association that he thought the son was entitled to §2000. The president did not dispute that the son was entitled to §500, but claimed the balance as belonging to the sister. The guardian yicdded to this claim, believing it to be well founded, and received §500, understanding that the association was about to pay §1500 to the sister, and signed a receipt, acknowledging that the §500 was received in full of all demands or claims against the association. The association then paid the $1500 to the sister. Held, on a bill in equity brought by the son against the association to recover the §1500, that, if the receipt could be construed as an agreement not to claim the §1500, there was no consideration for it. Held, also, that the son was not estopped to maintain the bill by the conduct of his guardian.</p>

<p>Contract, in two counts. The first count was to recover $175.26, the amount of a tax assessed upon the real estate and personal property of the plaintiff on May 1, 1884, and paid under protest. The second count was to recover $179.79, the amount of a similar tax assessed on May 1,1885, and also paid under protest. Answer, a general denial.</p> <p>Trial in the Superior Court, without a jury, before Brigham, C. J., who found the following facts :</p> <p>The plaintiff is an institution organized, under the Pub. Sts. c. 115, on May 19, 1882, for the “ education of boys,” and its property consists of a farm of about four hundred acres, situate in the town of Gill, upon which are two farm-houses, barns, and other buildings adapted to farming purposes, cottages for lodgings, a building styled a recitation-hall, containing a chapel, school-rooms, library, and museum, and a building styled Crosby Hall, containing rooms for about two hundred students, and a dining-hall for the whole school. Of live stock, the property of the plaintiff, there were on the said farm oxen, horses, and swine, bred, reared, kept, and used on said farm; and all of said farm, excepting about ten acres, upon which are said school buildings and their near surroundings, and woodland, is used for tillage, pasture, and other agricultural purposes. Said corporation has no capital stock or stockholders, and has obtained its property by means of gifts of money from persons interested in the objects of the school, and such property is held and managed by fifteen persons, styled trustees, one of whom is president. There are also a vice-president, a secretary, and a treasurer. A superintendent of said farm and school, and from ten to fifteen teachers, reside on the farm.</p> <p>The purpose of the school is to provide a place where young men whose early education has been neglected can be instructed, their physical welfare cared for, and a practical knowledge of work, especially in agriculture, given, by requiring of each member of the school a certain amount, usually two or three hours per day, of manual labor on said farm. The aim of the industrial arrangements is not so much to secure pecuniary benefit as to provide for physical culture, teach how to do various kinds of farm work, form habits of industry, and inculcate right views of manual labor, and especially of agriculture. No person under the age of sixteen years, or not having health, mental ability, and moral character, can be admitted into said school. Boys admitted into the school are required to pay for board and tuition, each $100 per year, payable semiannually in advance. During vacations, the scholars may have occasional employment on said farm for wages, and during terms may also do extra work, for which they are paid. The maintenance of the school depends upon the moneys received from the board and tuition of its scholars, and the products of the farm. The farm is carried , on substantially by the labor of the scholars of the school; and the products of the farm, excepting as hereinafter stated, are consumed in the school, for food of its scholars, fuel, &c. The products of the farm have been hay, corn, rye, potatoes and other vegetables, and butter and milk. The school went into operation in 1881, and has been maintained and carried on since in accordance with the purposes of its organization, as the same are herein stated.</p> <p>Between May 1, 1884, and March 12, 1885, inclusive, there were sold for cash, or exchanged in barter, at current market prices, for other farm products and provisions, products and live stock of the farm to the amount and value of $1047.57, as follows: pork and live hogs, partly for cash and partly in exchange for beef, $180.47 ; five fat cows, not yielding milk, for cash, $160; two cows and their two calves, of imported Angus stock, on credit, of the value of $400; apples, for cash, $124.55; cucumbers, for cash, $26.30; butter, for cash, $11.75; calves, for cash, $9 ; calf-skins, for cash, $3.50 ; in barter with a girls’ school at Northfield, for various farm products, $150. Cows and calves thus sold were part of the live stock kept and bred on the plaintiff’s farm, and fed on its products. Of the hogs and pork thus sold on the farm, the hogs were bred, kept, and fed there upon its products, and upon swill derived from the boarding-house of the plaintiff, and were tended by the scholars. The butter and milk thus sold were the products of the cows kept on the farm and the labor of the scholars. The cucumbers and apples thus sold were also the product of the farm and the labor thereon of the scholars.</p> <p>There is at ISTorthfield, four miles from the plaintiff’s school, a girls’ school, to which is attached a farm, the products of which during the years 1884 and 1885 were interchanged with the products of the plaintiff’s farm, at current market prices, for the mutual convenience of the two schools : and in this interchange the plaintiff furnished to the girls’ school its farm products of the value of $150, and received from said girls’ school its farm products of much larger amount and value, so that the balance of accounts arising out of such interchange of products was, in settlement of such accounts, always largely in favor of said girls’ school. In the summer of 1885, there was a convocation of clergymen and religious persons, for religious objects, which continued during two weeks, on the premises of said girls’ school; and for milk from the plaintiff’s cows on its farm, furnished to said convocation, the plaintiff received in cash the sum of $72.80.</p> <p>All the products and live stock of the plaintiff’s farm disposed of by sale and barter were cultivated, gathered, and tended by the labor of the plaintiff’s scholars; and all moneys received from their sale came to the hands of the plaintiff’s treasurer, and were applied to the maintenance of the plaintiff’s school. All farm products and provisions obtained by the barter of the plaintiff’s farm products were consumed in the plaintiff’s school, for the subsistence of its scholars or of the live stock on the plaintiff’s farm. From the time when the plaintiff’s school went into operation, the products of its farm have largely increased from year to year, but have never been sufficient for the needs of the school, or of the stock on the farm.</p> <p>The assessors of the defendant town, in 1884, assessed taxes upon the plaintiff’s personal property, consisting of the horses, oxen, cows, and swine on said farm, valued at $2934, in the sum of $34.62, and upon the plaintiff’s real estate, consisting of three hundred and twenty-three acres of the land of the said farm, and the two farm-houses, wood-house, two barns, two sheds, two tobacco barns, and milk-house, valued at $11,755, in the sum of $138.70. The defendant’s bill for these taxes, amounting to $175.26, was paid to the defendant’s tax collector by the plaintiff’s treasurer, on February 27, 1885, after due demand, but under protest, in writing, that said taxes had been illegally assessed.</p> <p>The assessors of the defendant town, in 1885, assessed taxes upon the same personal property on the plaintiff’s farm, valued at $2517, in the sum of $31.69, and upon the same real estate and buildings, valued at $11,755, in the sum of $148.10, and these taxes of 1885, amounting in all to $179.79, were duly demanded by the defendant’s tax collector of the plaintiff’s treasurer, who paid the same, with a written protest that the same were illegally assessed. No question was made as to the sufficiency of said demands and protests.</p> <p>In 1884 and in 1885, the defendant assessed no taxes on any of plaintiff’s buildings on its said farm having in them rooms used for school purposes, or for dormitories for scholars, or for eating-rooms, or for recitation-rooms, or for lodging of teachers, or on the superintendent’s house, the chapel, or the library.</p> <p>In 1884, the defendant owed a debt of $10,000, contracted prior to 1882 in contributing to the cost of erecting a bridge over the Connecticut River, and duly raised money by taxation in 1884, including the taxes in suit, to pay interest on said debt. The defendant at the town meeting in March, 1885, duly voted to pay and to appropriate money raised by taxation, and to pay $1000 of said debt of $10,000, and duly raised money by such taxation in 1885, including the taxes in suit.</p> <p>Upon these facts the judge ruled that the action could not be maintained, and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

Complaint to the Central District Court of Worcester, for the sale at Worcester, on June 5, 1886, of intoxicating liquor to one John Buckley. At the trial in the Superior Court, on appeal, before Staples, J., it was admitted that the defendant had a fourth class license, authorizing the sale of spirituous and intoxicating liquors in the town of Millbury at the time alleged in the complaint, and that no licenses were granted in Worcester for the year beginning May 1,1886.

<p>In an action by the payee against the maker of a promissory note, it is no defence, that the defendant, a married woman, was induced to sign the note by threats made to her by her husband, if the payee took the note in ignorance thereof.</p>

<p>In an action on a promissory note, payable to A. and purporting to be signed by B. by his mark and to be witnessed, on the issue of the genuineness of the defendant’s signature, the attesting witness testified that A. and B. were in the room adjoining the one he was in, the door being ajar; that A. wrote the note and read it to B.; that he was then called in to witness the note; that A. said, “ This is B. who is giving his note, and I want you to witness it; ” and that the witness then took the pen out of B.'s hand, read the note, and then witnessed it. Held, that the testimony was sufficient to warrant the jury in finding that B. duly signed the note.</p> <p>When the signature to a promissory note is proved, the note itself is prima facie evidence of consideration.</p> <p>In an action on a promissory note, to which the defence was want of consideration, it appeared that the payee held a note of a son of the maker, and that the maker was the administrator of his son’s estate and his only heir, and gave the note in suit in renewal of the old note. Held, that, even if the old note could not have been enforced at law at the time the new note was given, there was sufficient evidence of consideration for the new note.</p>

Two ACTION'S OF TORT for injuries occasioned to the plaintiffs by reason of an alleged defect in North Street in Fitchburg. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows: North Street is a side street leading from Main Street, and substantially level, and at the place of the accident the land upon each side of the location of the highway is low and wet.

Contract, upon an account annexed, for two hundred and fifty-three loads of sand, at forty cents a load. Held: that the book was competent evidence, in connection with the evidence adduced by the plaintiff, if believed, and was part of the res gestee, and admitted the same. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

Tort. The declaration contained three counts: the first, for an assault; the second, for an assault and for false imprisonment; and the third, for malicious prosecution.

<p>A lessee of a building, who sustains personal injuries occasioned by the defective condition of the building, cannot maintain an action of tort against the lessor, founded upon a breach by the lessor of an agreement to repair the building within a reasonable time.</p>

<p>Contract, for breach of a covenant against incumbrances, in a deed from the defendants to the plaintiff. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, in substance as follows :</p> <p>On August 19, 1836, Nathan Heard, who then owned a farm bounded northerly on a turnpike, and having a house upon it on the southerly side, conveyed to James Estabrook the northerly portion lying between the house and the turnpike. This deed contained the following clause: “ reserving to said Heard, his heirs and assigns, the right of passageway from his dwelling-house to the turnpike aforesaid, and through the premises, as the same is now enjoyed.”</p> <p>The turnpike referred to is now Belmont Street, and the right to use the passageway has been conveyed, in substantially the same language, by several mesne conveyances, from Heard to Ann B. Earle, who now resides on the same premises and in the same house which Heard occupied at the time of his deed to Estabrook.</p> <p>On August 19, 1836, Nathan Heard conveyed to John F. Clark all of his homestead estate, and on October 22,1839, he made, upon the back of that deed, a conveyance to Clark, his heirs and assigns, of “ the right of a passageway from the dwelling-house on the estate to the turnpike,” over the estate conveyed to Estabrook, “ meaning to convey the passageway the same as it is now enjoyed.” The conveyance of the right of passage was recorded on November 22, 1839.</p> <p>On October 3, 1839, Clark conveyed to Edward Earle the estate conveyed to him by Heard, “ excepting the' part of said homestead sold by Heard to James Estabrook,” and also reserving a strip of land lying south and east of the house sold to Estabrook. This strip of land, thus reserved, lies between the land sold to Estabrook and the southerly part of the Heard farm.</p> <p>On November 22, 1839, Estabrook conveyed to Rodney A. Miller the lot bordering on the turnpike, “reserving to the owner and his assigns of the adjoining estate, formerly of said Heard, the right of a passageway from the dwelling-house on said estate to the turnpike aforesaid, and through the premises as the • same is now enjoyed, being the same estate conveyed to me by deed from Nathan Heard, bearing date August 19,1836.”</p> <p>On July 18,1884, the defendants, who had acquired by inherit* anee the estate of Rodney A. Miller, conveyed the lot bordering upon the turnpike to the plaintiff. The deed, after describing the premises by metes and bounds, contained this clause: “ Reserving to the owner of the estate, and others adjoining on the south, a right of passageway over the within granted premises as specified in deed of James Estabrook to Rodney Miller, dated November 22, 1839.” The deed also contained the usual covenant that the premises “ are free from all incumbrances.”</p> <p>At the time of the deed to the plaintiff, the lot immediately south of it was owned by Josephine H. Cutter, who derived her title from Clark. South of this lot was the lot of Ann B. Earle.</p> <p>The plaintiff contended that the right of way possessed by Ann B. Earle by virtue of the clause in the deed from Heard to James Estabrook was an incumbrance on his land ; and that the passageway mentioned in the defendant’s deed to him terminated at the death of John F. Clark or of Edward Earle, both of whom died before the date of the deed to the plaintiff.</p> <p>The defendants contended that the language relating to a passageway in their deed to the plaintiff constituted an exception and not a reservation, and that the same was true of the language in the deed from Estabrook to Miller.</p> <p>The judge ruled in accordance with the defendants’ contention. The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>In an action for breach of a covenant against incumbrances in a deed of land from the defendant to the plaintiff, oral evidence is inadmissible to prove that, at the time the deed was given, and as a part of the consideration, the plaintiff promised to pay an assessment then existing upon the land. .</p>

<p>Indictment, against John Buckley and John Clune, on the Pub. Sts. e. 202, § 29, alleging that the defendants, on May 14, 1887, at Brockton, verbally threatened to accuse one Frank E. White of having committed the crime of burning a building not his own, with intent to extort money, namely, the sum of $100, from the said Frank E. White.</p> <p>At the trial in the Superior Court, before Thompson, J., it was proved, but the attention of the judge was not called to the fact until after the commencement of the charge, that the name of the person referred to in the indictment as Frank E. White was Frank A. White, and not Frank E. White, and there was no evidence tending to show that said Frank A'. White had ever been known or called Frank E. White, until so designated in this indictment. The defendants asked the judge to rule that there was a variance between the allegations in the indictment and the proof, and that, by reason of said variance, the jury should return a verdict of not guilty.</p> <p>The judge stated that the point was too important to be left in doubt, and allowed said White to be recalled and to testify that his name was Frank A. White.</p> <p>The judge refused to rule as requested; but ruled that, if the jury were satisfied that Frank A. White was the person called Frank E. White in the indictment, there was no variance, as contended by the defendants.</p> <p>The jury returned a verdict of guilty against both defendants $ and they alleged exceptions.</p>

<p>A warrant to search for and seize intoxicating liquors, issued under the Pub. Sts. c. 100, § 30, in the form prescribed by § 46, may be executed in the night-time.</p>

<p>Tort against the keepers of an inn, called the Elm House, in Greenfield, for the value of a watch, chain, and a sum of money, alleged to have been stolen while the plaintiff was a guest at the inn. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff, who was a grain-dealer, about fifty years of age, and lived in Erving, came to Greenfield to attend court, as one of the grand jurors. On the first day of court, at noon, he registered as a guest at the Elm House, having on his person a gold watch of the value of about $100, and a gold watch-chain of the value of about $40. The watch was carried in the watch pocket of his waistcoat, and the chain was attached to the waistcoat; and he had in the pocket of his trousers $15 or $20 in money. It was admitted by the defendants, at the trial, that the watch and chain were articles worn or carried on the person, and were reasonable- in value and amount, and that the money was for travelling expenses and personal use.</p> <p>On the evening of that day, about half-past nine, the plaintiff was shown to his room by one of the defendants, who left with the plaintiff a glass kerosene lamp, such as is commonly used in country hotels. There was no gas or other light in the room. On the walls of this room were a large number of pictures of noted singers and actresses and performers, such pictures as are distributed for advertisements. The room was about ten feet wide and fifteen feet long, and had but one door. The plaintiff took the lamp from said defendant, and, as soon as the defendant left, closed the door and locked it, but did not bolt it. The lock was a common mortise lock connected with the door knob. After locking his door, the plaintiff looked at the pictures on three sides of the room, and prepared to retire. His waistcoat, with the watch in it and the chain attached, he laid upon a light stand on the farther side of the bed from the door, and near the head of the bed; his trousers containing the money he laid upon a chair, and retired. When he awoke in the morning, it was found that, during the night, the lock on the door had been picked, the room entered, and the trousers and waistcoat carried away by some person unknown. The waistcoat was soon found in the hallway, and the trousers were found in the street at some distance from the hotel, and the watch and chain and the money had been stolen. The door to the room was found to be slightly open.</p> <p>It appeared that there was a bolt on the inside of said door, about six inches from the top. This bolt was about four inches long and one half-inch in diameter. The door was about six feet six inches high, and opened into the room. The plaintiff did not fasten the door with this bolt, and his attention was not called by the defendants or by any one else to the bolt; and he testified that he did not know it was there until after the robbery.</p> <p>One of the defendants testified that the plaintiff told him, the day following the plaintiff's loss,, that he, the plaintiff, did not bolt said door, that he did not think of it; and another witness, called by the defendants, testified that the plaintiff said, on the same occasion, that he did not see said bolt. The plaintiff denied that he made either of these statements.</p> <p>• The plaintiff testified, on cross-examination, that he had travelled considerably, and had stopped at hotels on numerous occasions ; and that his habit had always been on such occasions, when there were both a bolt and a lock upon the door of his room, to use both the bolt and the lock.</p> <p>The defendants contended that, upon the evidence, the plaintiff must have seen the bolt; that the plaintiff’s loss was attributable to his failure to bolt the door in addition to locking it; and that such failure was such negligence on his part as to exonerate the defendants from liability to the plaintiff. There was no contention on the part of the defendants that there was any negligence on the part of the plaintiff except his failure to bolt the door.</p> <p>The plaintiff requested the judge to instruct the jury as follows : “ 1. The plaintiff having locked the door of his room, his failure also then to bolt the door was not such negligence on his part as would preclude his recovery in this action. 2. The failure of the plaintiff to bolt the door of his room after having locked it, if said bolt was not known to the plaintiff, nor his attention in any way called to the same, was not negligence on his part, and will not preclude the plaintiff from recovery in this action.”</p> <p>The judge declined to give the instructions requested, but submitted to the jury, as a question of fact for them to determine, whether the failure of the plaintiff to bolt his door in addition to locking it was negligence on his part to which the loss was attributable, with appropriate instructions, not objected to, defining negligence on the part of the plaintiff, and its effect on the case.</p> <p>The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Tort for personal injuries occasioned to the plaintiff by a defect in a highway in Amherst. Answer; 1. A general denial. 2. Accord and satisfaction.

Trustee Process. Smith College, a corporation duly established by law in this Commonwealth, was summoned as trustee of the principal defendant. The material parts of the trustee’s answers appear in the opinion. The Superior Court discharged the trustee; and the plaintiff appealed to this court.

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

Bill in equity, by Joseph Steele and Alexander Emery, co-partners under the firm name of Steele and Emery, against H. E. Nash and N. C. Cook, copartners under the firm name of H. E. Nash and Company, and John G. Mackintosh.

<p>Three actions of slander were brought by the same plaintiff against three different defendants for the same or similar defamatory words; and, by agreement of parties, they were referred to the same referee, who heard them together on three consecutive-days, and made an award in each case in favor of the defendant, on which judgment was entered. The certificate of witnesses filed in each case showed that the same witnesses for the defendants attended in each case the same number of days and travelled the same number of miles, with a trifling exception. Held, that the fees for the attendance of witnesses should be taxed in all the cases, but that the fees for their travel should be taxed only in the case in which they were summoned.</p>

Complaint to a trial justice, for keeping and maintaining a certain common nuisance, to wit, a tenement in Leominster, used for the illegal sale and illegal keeping for sale of intoxicating liquors, on April 18, 1886, and on divers other days and times between that day and June 8, 1886.

<p>Complaint for keeping intoxicating liquors with intent unlawfully to sell the same in this Commonwealth. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The government introduced witnesses, who testified that they found upon the defendant’s premises, in different cases, beer in bottles known as lager-beer bottles; that four bottles of this beer were taken by the officers, one from each case. It was agreed that in one of these bottles so taken the beer contained more than three per cent of alcohol, by volume, at sixty degrees Fahrenheit. The contents of the other bottles were not analyzed.</p> <p>The defendant offered to show that, when he purchased this beer, he ordered what is known as three per cent beer, and did not order lager beer; that he did not know that any lager beer was upon his premises; that the case containing the lager beer or beer that contained more than three per cent of alcohol was brought there by the person of whom he ordered the three per cent beer, and was left by mistake; that he purchased this beer in good faith for three per cent beer; and that if he had found, when he opened the beer, that it was lager beer, he should not have sold it.</p> <p>The defendant asked the judge to instruct the jury as follows: “ 1. If you find that the defendant ordered in good faith a beer which the law permits him to sell, known as three per cent beer, and that he did not order lager beer, and that the case of lager was left there at his place by mistake on the part of the person delivering it, and through no fault of his, and that the defendant honestly believed that he had nothing except three per cent beer upon his premises for sale, and did not intend to sell anything which he had not a right to sell under the law, then he should not be found guilty. 2. If the jury shall find that the defendant believed that he had not any lager beer in his possession to sell, but did believe and had good reason to believe that the beer which he had to sell was not lager beer, but a beer known in the market as three per cent beer, which he had a right to sell under the law, and that he did not intend to sell any lager beer, and did not know that he had any lager beer in his possession to sell, then he cannot be convicted under this complaint. 3. Before you can convict the defendant under this complaint, you must be satisfied, upon the evidence, that the defendant knew, or had good reason to know, that the beer which he had in his possession to sell was a beer which he was prohibited by law to sell. 4. If the jury shall find that the lager beer found with the defendant was there by mistake, and that the defendant did not know it was lager beer, and did not intend to sell the same when the opportunity presented itself to him to know the true character of the beer and when he did know the true nature of it, and you find that he would have found out whether it was lager or not when he attempted to sell it, then he cannot be convicted under this complaint.”</p> <p>The judge declined to give any of said instructions in the form in which they were requested, and ruled that, in order to convict the defendant, it must be proved that, at the time referred to, he kept for sale intoxicating liquor, that is, that he kept in his place of business liquor which was in fact intoxicating, intending to sell it as he had opportunity; and that, if that was proved, it would be no defence for the defendant to show • that he was mistaken as to the kind or quality of liquor, or that he ordered or bought it for liquor which was not intoxicating, and believed that it was not intoxicating, or that the person who delivered it was mistaken about its quality.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>At the trial of a complaint for keeping intoxicating liquors with intent unlawfully to sell the same, the defendant admitted that a license issued to him to sell such liquors had been revoked by the board of aldermen granting it, upon proof satisfactory to the board that he had violated the conditions thereof. The defendant, for the purpose of showing that said revocation was invalid, on the ground that he was afforded no reasonable opportunity to be heard, offered to show that he was cited to appear before the board on a certain evening, to attend a hearing upon the revocation of his license; that on that evening he was confined to his bed by reason of illness, and was unable to attend the hearing ; that he was represented by counsel, who presented to the board the certificate of his physician of his physical inability to be present, and requested a continuance of the hearing; that thereupon the city marshal stated to the board, but not under oath, that the defendant was in his saloon attending to business that afternoon, which statement the defendant offered at the trial to prove was incorrect; that it was then voted to proceed with the hearing; that the board refused his request for a continuance, upon which his counsel left; and that, after a hearing, the board revoked the license. The judge ruled that, upon these facts, if proved, the revocation was valid. Held, that the ruling was right.</p>

Tort, for the conversion of a lot of furniture. Answer, a general denial. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows: On December 13,1880, one William T. Carroll mortgaged to the defendant the furniture in question, specifically describing it, to secure the payment of a promissory note for $47 and interest, in three days from date. This mortgage was never recorded.

<p>Tort for an illegal arrest and false imprisonment. At the trial in the Superior Court, before Staples, J., the jury returned a verdict for the plaintiff; and the judge reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Under the Pub. Sts. c. 18, § 1, and c. 181, § 2, the certificate of an entry made for the breach of a condition of a mortgage may be sworn to before a notary public.</p>

<p>In an action upon a policy of insurance against bodily injuries “ effected through external, violent, and accidental means,” and against loss of life resulting from such injuries within ninety days, and containing a condition that immediate written notice shall be given to the company of any accident and injury for which claim is made, and that, unless affirmative proof of death or duration of disability is so furnished within seven months from the time of such accident, all claims based thereon shall be forfeited, the declaration set forth a contract made by the policy; and alleged the death of the assured from bodily injury “effected through external, violent, and accidental means,” which injury occasioned his death within ninety days thereafter, and that due proof of such death and injuries was given to the company. The answer contained a general denial, and alleged that, if the death of the assured should be proved to have occurred within the term of the policy, “ he did not die in consequence of external, violent, and accidental means.” Held, that the defence that the immediate written notice of the injuries required by the policy had not been given was not open under the answer.</p> <p>In an action upon a policy of insurance against bodily injuries “effected through external, violent, and accidental means,” and against loss of life resulting from such injuries within ninety days, and containing a condition reciting that “ this insurance does not cover disappearances,” and enumerating a large number of injuries and death from a variety of causes as not covered by it, including “ intentional injuries inflicted by the insured or any other person,” the declaration set forth a contract made by the policy; and alleged the death of the assured from bodily injury “ effected through external, violent, and accidental means,” which injury occasioned his death within ninety days thereafter. The answer denied every material allegation of the declaration; and alleged that, if the death of the assured should be proved to have occurred within the term of the policy, “ he did not die in consequence of external, violent, and accidental means.” Held, that the defence that the injuries sustained by the assured were intentional was not open under the answer.</p>

Complaint to the Police Court of Gloucester for keeping and maintaining a common nuisance, to wit, a certain tenement in Gloucester, used for the illegal sale and illegal keeping of intoxicating liquors, on July 1, 1886, and on divers other days and times between that day and December 7, 1886.

<p>At the trial of a complaint for keeping intoxicating liquors, with intent to sell the same unlawfully, the only issue in dispute was whether the defendant was the proprietor of a certain saloon. A police officer. testified to an admission of the fact by the defendant at a certain interview when no one else was present. The defendant and two other witnesses testified to a conversation between the defendant and the police officer differing essentially from the version given by the latter. The defendant contended in his argument to the jury that the officer was mistaken. The district attorney contended that, if the jury acquitted the defendant, they would brand th'e officer as a perjurer. The defendant asked the judge to instruct the jury that it was not necessary for the jury to disbelieve the officer in order to acquit; that, if all the evidence left their minds in doubt as to what was said, the defendant was entitled to the benefit of it. The judge did not instruct the jury as requested, but instructed them that the material allegations of the complaint were to be proved beyond a reasonable doubt, and that they were to consider the intelligence of the officer, and whether he understood and interpreted the conversation correctly; and that they were not responsible for the effect, if any, of their verdict upon witnesses. Held, that the defendant had no ground of exception.</p>

<p>Under the Pub. Sts. c. 153, § 8, a ruling of the Superior Court, sustaining a demurrer to a declaration in an action at law, and ordering judgment for the defendant, may be revised by this court on a bill of exceptions.</p> <p>The declaration in an action for libel alleged, in the first count, that the defendant falsely and maliciously accused the plaintiff of conspiring with P. to defraud the neighbors and friends of the plaintiff and P.; and that the defendant caused said false and malicious libel to be published in a certain newspaper, as follows: “As to the E. Company, I doubt not all are willing it should pay a fair dividend, six per cent, even ten per cent, on the actual value of the plant. Here comes the rub, when the N. Company was capitalized for $40,000 its actual value was not §15,000. It was a plan for the T. Company to make a good sale, as no profit could be made with the sharp, bitter competition of the S. Company in the field, and it was a scheme by which certain parties (meaning the plaintiff and said P.) attempted to make $20,000 or more by buying a property worth in the neighborhood of $15,000 and capitalizing it for $40,000, and by selling stock to their neighbors and friends (meaning the neighbors and friends of the plaintiff and-said P.) which was more than half water (meaning that more than half of the par value of said stock represented no assets and was of no real value). In fact, the T. plant at the time it was sold and capitalized for $40,000 was not worth near $15,000, as a large sacrifice had to be made, and was made by the projectors (meaning the plaintiff and said P.), who dare not force the loss of removing the S. competition on the stockholders after making 100 per cent and more on the stock sold.” The second count alleged that the plaintiff was engaged in business in the city in which the newspaper was published; and that the defendant caused to be published in said newspaper “ a false and malicious libel concerning the plaintiff, whereby the plaintiff was greatly injured in Iris trade, business, and employment; ” and set out the publication annexed to the first count. Held, on demurrer, that the declaration was insufficient, in failing to apply the alleged libellous words to the plaintiS, or to show in what sense they were used.</p>

Appeal, by the executors of the will of William Taylor, from a decree of the Probate Court, disallowing certain items in the executors’ account, charging interest to the legatees named in the will on debts due from them to the testator at the time of his death.

The first case and the second case were complaints for keeping intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth. The third case was a complaint for keeping and maintaining a certain tenement used for the illegal sale and for the illegal keeping of intoxicating liquor, the same being a common nuisance.

<p>Complaint for keeping and maintaining a common nuisance, - to wit, a certain tenement in New Bedford, used for the illegal sale and illegal keeping of intoxicating liquors, on April 1,1886, and on divers other days and times between that day and May 22, 1886. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:</p> <p>The defendant was a licensed innholder, and also held a license of the first class for the sale of intoxicating liquors during the time charged in the complaint, which license contained the provision of the statute in regard to innholders.</p> <p>The complainant, Jules Giquel, testified that he went to the premises described in the license, on Sunday, May 9,1886, about noon, with one Partridge and three sailors, whom he and Partridge found in one of the public streets of New Bedford, and invited to go with them where liquor could be sold; that, after visiting one or more places, they" came to the defendant’s place; that the curtains to the front windows on the east side of the defendant’s saloon were drawn so as to cover the entire windows, and the defendant stood inside the saloon, near the window just north of the door leading into the saloon ; that as he, Partridge, and the three sailors stopped in front of the defendant’s place, the defendant pulled the curtains aside, and moved his hand towards the gate leading to a rear door on the south side of the building, which they interpreted to mean to go into the gate into the yard and round the house; that they did so, and went into the defendant’s place at the back door, and found in the saloon or bar-room some twenty-five other persons ; that others came in and went out, some through the front door and some through the back door; that while they were in there five persons got whiskey, drank it, and paid for it; that two or three of the.sailors who went with him got whiskey or rum, and he paid for it; that the curtains to the windows were drawn so as to cover the entire windows at the time of said sales.</p> <p>The bar-room in which the sales were testified to have taken place was the front room on the first floor next to the street; and the windows above referred to were windows looking out of said room.</p> <p>The complainant further testified, that he was employed with Partridge by the Law and Order League of New Bedford to obtain evidence against liquor sellers in New Bedford, and to prosecute such for illegal sales of intoxicating liquor; that they were furnished by said league with money to pay their expenses, and were paid by the day for their labors; that the money they paid out for liquor drank and food eaten by the sailors was money furnished by said league.</p> <p>Partridge testified to similar matters and things; and both he and Giquel testified that the windows to the saloon were about six feet from the sidewalk, and that the house was some three or four feet back “from the line of the street; and another wit- ' ness testified that, standing on the sidewalk in front of the house, one could see into the saloon only a few feet, and could see only down to the waist of a person standing near the window.</p> <p>There was some other testimony as to Sunday, April 25, and May 2, in regard to the use of the saloon on those days. The defendant and his bar-tender were called, and testified, directly contradicting the evidence of Giquel and Partridge.</p> <p>The defendant asked the judge to give the following instructions to the jury: “ 1. An innholder, under a license to sell intoxicating liquor, has a right to sell on any part of the Lord’s day, night as well as day, in any part of his inn, to a guest.</p> <p>2. He has a right to sell to a guest on any part of any day of the week. 3. A guest is one who has resorted to his house for either food or lodging, as lodger, or boarder, or for lunch. 4. One is a guest who goes into such a place for food alone, or for lodging alone, and he would be a guest if only for a lunch or for an hour’s rest; and to such a person the innholder may sell intoxicating liquor under his license. 5. If one goes to an inn for food, and gets it, he may be furnished with liquor under a license to an innholder. 6. Upon Sunday a licensed innholder has a right to have screens or curtains on the windows on his premises in the room in which intoxicating liquor is usually sold, and the law does not apply on that day to an innholder. 7. If curtains to a window that were up would not cut off a view of the premises, or the business done within the room to a passer-by, because they were so high one could not see in, or for any other cause, then the license would not be void or the sale illegal.</p> <p>8. If the curtains were up, but not for the purpose of preventing persons passing by in the street from obtaining a view within the rooms or a view of the business done therein, then it would not make the license void, or the sale for that cause illegal. 9. Persons employed by an association or league to induce the defendant and others to sell liquor for the purposes of prosecuting the defendant and others for violations of their license, are not such persons as are entitled to belief, and a jury should not convict upon the testimony of such hired witnesses.”</p> <p>The judge declined to give the instructions requested, and instructed the jury as follows: “ The license of the defendant as an innholder would be violated, if, in the building to which that license applied, he sold intoxicating liquors to persons not guests, who had resorted to that building, either for food or for lodging, between the hours of eleven o’clock at night and six o’clock in the morning, or on the Lord’s day, or when the windows of the room in which defendant or his servants thus sold intoxicating liquors were so screened by curtains as to interfere with a view of the business conducted in that room, or with a view of the interior of that room. A person, who for a considerable and substantial period of time violates, in the sale of intoxicating liquors, or in the keeping of intoxicating liquors for sale, the conditions of his license in the building to which that license applies, may be convicted of keeping and maintaining that building, at times when that building is so used in the violation of that license, as a common nuisance.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>At the trial of a complaint for an unlawful sale of intoxicating liquor to a person unknown to the complainant, the defendant put in the testimony of one M., that he told the complainant, about a week before the complaint was made, the name of the person to whom the unlawful sale relied on was made. The complainant testified, in answer to the question whether he knew, when he made the complaint, the name of the person to whom the sale was made, that he did not know the man. On cross-examination, he testified that he did not remember that M. told him the name of the person who bought and paid for the liquor; that he could not say, and would not like to say, that he did or did not tell him the name of the person. Held, that the question was properly submitted to the jury, whether the allegation that the name of the person to whom the sale was made was unknown to the complainant was sustained by the evidence.</p>

Complaint to the Police Court of Gloucester, against Michael J. Murphy and David C. Godfrey, for keeping and maintaining a common nuisance, to wit, a certain tenement in Gloucester, used for the illegal sale and illegal keeping of intoxicating liquors, on October 1, 1885, and on divers other days and times between that day and March 26, 1886.

<p>A complaint against A. and B. for keeping and maintaining, at a time and place named, a certain tenement, “ then and there used by said A. and B. as a house of ill-fame, resorted to for prostitution, lewdness, and for illegal gaming, and then and there used by said A. and B. for the illegal sale and for the illegal keeping of intoxicating liquor, said tenement, so used as aforesaid, being then and there a common nuisance,” is sufficient, under the Pub. Sts. c. 101, § 6.</p> <p>It is no objection to a complaint for keeping and maintaining a tenement used as a house of ill-fame and for the illegal sale and illegal keeping of intoxicating liquors, that the time of the continuance of the offence, as alleged in the complaint, extends beyond a period of six months.</p> <p>At the trial of a complaint for keeping a tenement used as a house of ill-fame in G., a police officer testified that he visited the premises on a certain day, and in one of the rooms found two women in bed together, but no man with them, and in an adjoining room found another woman in bed, but with no man. The government then asked the witness, “ What was the reputation of these three women for chastity in G. ? ” The defendant objected to this question, but the judge allowed it to be put, and the witness answered that it was bad. Held, that the defendant had no ground of exception.</p> <p>At the trial of a complaint against A. for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, A. testified that he had nothing to do with the management or control of the premises, but that they were let to B., who alone conducted them during the period named in the complaint; that he, A., had never had any interest in any sale of liquor, or at any time on these premises. On cross-examination, the district attorney asked A. if he had had anything to do with keeping it before the first day named in the complaint; and A. answered that he had not. The district attorney was then allowed to put in evidence tending to contradict A. on this point, and to show expenditures for purchases for the premises for the four months preceding the first day named in the complaint, and was allowed to comment on this evidence in his argument to the jury. Held, that A. had no ground of exception.</p> <p>If, at the trial of a criminal case, certain evidence for the government is admitted without objection, and is competent for some purposes, it is too late for the defendant to request the judge, in the course of the closing argument for the government, to instruct the jury that the evidenced incompetent for any purpose, and that the argument in relation to it should be disregarded by them.</p>

<p>. At the trial of an indictment on the St. of 1884, c. 299, § 43, for altering a ballot cast for a certain officer at a municipal election of a city, secondary evidence of the character of the ballot, which has been destroyed by the city clerk, as required by § 26, is admissible.</p> <p>At the trial of an indictment on the St. of 1884, c. 299, § 43, for altering a ballot cast for a certain officer at a municipal election of a city, if the evidence shows that the ballot came from the ballot-box which was actually used in the election, it is not necessary to show that the ballot has been cancelled by a mechanical device, as provided in § 10 of the statute.</p> <p>An indictment on the St. of 1884, c. 299, § 43, for altering a ballot cast at a municipal election of a city for Nelson S. Wakefield for a certain office, by " drawing lines and marks across the words and name Nelson S. Wakefield,” is sustained by proof that the words and letters “ S. Wakefield ” only were so erased by the defendant.</p> <p>A ballot cast, at a municipal election of a city, for a candidate for an office, who is not elected, is a "ballot cast for any officer,” within the meaning of those words in the St. of 1884, c. 299, § 43, prescribing a penalty for the fraudulent alteration of such a ballot.</p> <p>It is no defence to an indictment on the St. of 1884, c. 299, § 43, for altering a ballot cast for a certain officer at a municipal election of a city, that the fraud was discovered, and the ballot was counted and returned for the candidate for whom it was intended to be cast.</p>

<p>Tort for damages alleged to have been occasioned to the plaintiff by the wrongful acts of the defendant in obstructing the Connecticut River at the plaintiff’s landing place on said river. Writ dated February 5, 1883. At the trial in the Superior Court, before Barker, J., the jury returned a verdict for the plaintiff in the sum of $406.67; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Contract upon a policy of insurance, dated January 15,1885, in the form prescribed by the Pub. Sts. c. 119, § 139, issued by the defendant to the plaintiff, and insuring it for the term of one year against loss by fire, to the amount of $2000, “ on patterns contained in storehouse of Putnam Machine Company.” By the terms of the policy it was to be void if, “ without the assent in writing or in print of the company, .... the said property shall be removed.” The case was sent to an auditor, who found the following facts:</p> <p>The patterns when insured were on the premises of the Putnam Machine Company. About May 1, 1885, they were removed from there to the storehouse of a manufacturer in another part of the city. On October 16, 1885, they were injured by fire, and the amount of the loss was $3482.43.</p> <p>There was no evidence that either the company, or any person acting or claiming to act in its behalf, assented in writing to the removal of the patterns. The plaintiff contended that it obtained a verbal or oral assent to said removal, and a waiver of the written assent called for by the contract. On this point the facts were as follows: The insurance was effected through</p> <p>Lockey and Allison, a firm of insurance agents doing business in Fitchburg, having a place of business not connected with the office of the defendant company, and acting in a similar capacity for six other mutual insurance companies and for several stock companies. Lockey and Allison were supplied from the office of the defendant company with a calendar, on which they were described as agents of the defendant company, and which was used by them as an advertisement, with the knowledge and consent of the defendant. The defendant supplied Lockey and Allison with blank applications, which were filled out by them, signed by the persons seeking insurance, and returned to the office of the company. If satisfactory to the company, a policy was made by the company and sent to Lockey and Allison; and they were authorized to receive the premiums, and settled with the company monthly. The rates were not made up by Lockey and Allison, but by the company.</p> <p>The practice was, when there was any change in the policy, for the agent to send the policy, with an indorsement in writing of the change, to the company for its consent. Slight changes had sometimes been made by these agents, in writing, on the policy, which were afterwards ratified by the company, not, however, changing the substance of the contract, but correcting mistakes. As when a policy was incorrectly made payable to a bank, or when it was made payable to the insured, and should have been made payable to a savings bank. Such a change as the removal of the property from one location to another would ordinarily have been indorsed in writing by these agents, and taken to the company for their consent.</p> <p>The risk was no greater where the property was burnt than at the place of its location when insured, and no additional premium would have been required by the company if it had been asked to consent to the removal.</p> <p>Henry Allison, in his examination in chief, testified as follows: “ Mr. Putnam came to me soon after the annual meeting of the Putnam Machine Company, April 8, 1885. He said they were not going to have castings made by the Putnam Machine Company, but had arranged with L. H. Goodnow. He said they should move the patterns to the storehouse over the office of Goodnow. We knew where it was. I said, 6 All right, go ahead and move the patterns, I will take notice for the company ; bring in your policies and have them indorsed. I do not remember about the rate, whether it is the same. I will come down and see whether it is necessary to make any change in the rate.’ Nothing further was said, before the fire. He did not bring in the policies, and there was no indorsement permitting the removal.”</p> <p>This testimony was not substantially changed on cross-examination, but the witness added, that he did not notify the insurance company of the removal till after the fire, and that the reason he did not was because he forgot it.</p> <p>George E. Putnam, the treasurer of the plaintiff, testified: “ About May 1, 1 told Mr. Allison we were going to change our patterns to Goodnow’s. He said, ‘ All right, go ahead and remove the patterns, and I will accept notice for the companies. Bring in your policies, and I will have them indorsed, and I will go down and see if there will be any change in the rate.’ I did not take the policies to the office, and did not think of it after that, before the fire. I supposed Allison had the power to assent to the removal. Did not know the difference between a stock and mutual company as to power of an agent.”</p> <p>Immediately after the fire, the defendant was notified of the loss and of the facts as to the removal of the property, as above set forth, and afterwards the officers of the company met the adjusters of the various companies in which the property was insured. At this meeting the amount of the loss was discussed, and a reduction of the sum covering the loss was agreed to by the plaintiff, on the supposition that the defendant company would pay its share of the loss. The president of the defendant company, in conversation with Allison at one time, and with Putnam, for the plaintiffs, at another time, on being told that the other companies that had insured had paid their share, said that his company would have done so if the amount of their insurance had been no greater than that of the other companies.</p> <p>The defendant company never waived its right to rely on the clause in their policy as to removal of goods, unless the foregoing facts constitute such waiver. The defendant had no knowledge that the property insured had been removed until after the fire.</p> <p>The auditor found that Lockey and Allison were not authorized to assent to the removal of the property; that the defendant did not assent to its removal in writing, or otherwise; and that the policy was void, and the plaintiff could not recover.</p> <p>At the trial in the Superior Court, before Pitman, J., the plaintiff offered to prove all the facts stated in the auditor’s report, except his finding as to the authority of Lockey and Allison, and also offered to prove the following additional facts: At the time of his conversation with Allison, Putnam, the plaintiff’s treasurer, believed that Lockey and Allison were the agents of the defendant, having authority to give the plaintiff permission to remove the insured property, and in removing said property he acted on said belief. The plaintiff asked to be allowed to go to the jury upon the questions involved.</p> <p>The judge ruled that the jury would not be warranted in finding a verdict for the plaintiff; and directed a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>In an action of tort by a mortgagee of personal property, against an officer who had attached the goods as the property of the mortgagor, it appeared that the mortgage was conditioned to pay the sum of $1000 in one year, “ as stated in my notes dated ” a certain day; and that the demand, made in pursuance of the Pub. Sts. c. 161, § 75, on the defendant, was to pay the sum of $1000, “being the amount of two notes of $500 each, indorsed by me for the accommodation of ” the mortgagor. Held, that oral evidence was admissible to show that the mortgage was intended to indemnify the plaintiff against liability as indorser of two notes of $500 each, signed by the mortgagor; and that the action could be maintained although the notes originally given had been renewed by other notes, also signed by the mortgagor and indorsed by the plaintiff, on delivery of which to the bank discounting the original notes the latter had been delivered to the mortgagor.</p> <p>A demand in writing, made, under the Pub. Sts. c. 161, § 75, by a mortgagee of personal property upon an attaching officer, is not invalidated by including in the sum demanded the amount paid by the mortgagee for costs of protest of the promissory note secured by the mortgage, if the property attached is insufficient to pay more than the noté alone.</p>

<p>A. was arrested wrongfully, without a warrant, on a charge of felony, by two police officers of a city, and taken to the lock-up. Afterwards the city marshal, having reason to believe that A. was innocent, and having made up his mind to . release him, sent him, the assistant marshal taking part in such act, from the lock-up to'the railroad station in the custody of an officer other than those who arrested him, who released him only when on a train, and just before it started. Held, that A. could maintain an action against the five officers jointly for the imprisonment between the lock-up and the train.</p>

<p>If a person attaches mortgaged personal property which is in the possession of the mortgagor under a conditional sale, the terms of which have not been complied with, and, upon the demand of the mortgagee, pays the amount due on the mortgage to the latter, who assigns to him all his right, title, and interest in the mortgage, such person cannot maintain a bill in equity against the mortgagee to recover the amount so paid by him, upon the ground that the payment was made under a mutual mistake as to the validity of the mortgage.</p>

<p>While a bill in equity, brought by a mill-owner on a natural stream against the owner of a reservoir higher up on the same stream to restrain the defendant from preventing the flow of the water to the plaintiff’s mill, and for damages, was pending, the defendant wished a hearing on the question of granting a preliminary injunction postponed, and the plaintiff agreed to this, on the defendant’s promise that sufficient water should be allowed to flow to the plaintiff’s mill in the mean time. Held, that the plaintiff could not maintain an action at law against the defendant for breach of this agreement.</p>

<p>In an action for personal injuries occasioned to the plaintiff’s intestate by the breaking of a machine upon which he was employed by the defendant, the evidence showed that the intestate was found, about ten minutes after the accident, with his body crushed and his bowels disrupted, and that, although breathing, he was unconscious, and died almost immediately in that state. The judge ruled that there was evidence to warrant the jury in finding that a cause of action accrued to the intestate in his lifetime, and survived to his personal representative ; that there was no evidence to warrant the jury in finding that the deceased endured any conscious pain or suffering, and that the plaintiff was only entitled to recover nominal damages. Held, that the rulings were not inconsistent, and were correct.</p>

Petition to this court, dated May 10, 1887, for leave to enter an appeal from a decree of the Probate Court, rendered on April 12, 1886, admitting to probate an instrument purporting to be the last will of Waters B. Barker. Hearing before 0. Allen, J., who ruled that the petition was not seasonably filed, and that the appeal could not be entered; and the petitioners alleged exceptions, which appear in the opinion.

<p>Complaint for keeping and maintaining a common nuisance, to wit, a tenement in Brockton, used for the illegal sale and illegal keeping of intoxicating liquors, on May 1, 1886, and on divers other days and times between that day and August 3, 1886. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows :</p> <p>It appeared that during all of the time named in the complaint the defendant was the holder of a license of the first class for the keeping and selling of intoxicating liquors, and also of a license as an innholder, under the provisions of the Pub. Sts. e. 100; that the licenses were procured to be used and were used for the purpose of carrying on the business of an innholder and seller of intoxicating liquors in the Occidental Hotel, in Brockton.</p> <p>The defendant offered evidence tending to prove that she in no way or manner managed, controlled, or directed said business ■at any time, but left the management, control, and direction thereof, and the employment of necessary help, to her husband, John Hayes; that she did not live in or near said hotel, but in another part of the city, that during all of the period named in the complaint she was upon the premises of the Occidental Hotel but three times, and then only between the hours of nine and ten in the evening, and for the purpose of meeting her husband and of going with him to her home; and that at no other time was she notified, directly or indirectly, of any proceedings whatever at said hotel in violation of the conditions or provisions of her licenses; and there was no evidence in the case that she personally knew of the same.</p> <p>It also appeared that the bar-keeper employed at said hotel during the period covered by said complaint was employed by the defendant’s husband; and there was no evidence that the defendant ever saw or spoke to him.</p> <p>There was evidence tending to prove illegal sales, of intoxicating liquor by the bar-keeper in said hotel within the period named in the complaint.</p> <p>There was also evidence tending to prove that the defendant’s husband, in accordance with her wishes and with her knowledge, and upon her procuring said license to keep and sell intoxicating liquors, instructed the only person employed as a bar-keeper at said hotel during said period never to sell intoxicating liquor to minors or drunken men, or to any but guests of the house after eleven o’clock at night, or in any way to violate any of the provisions or conditions of said- license, but to conduct the business at said hotel according to the provisions of said license in all respects; and that such instructions were reiterated to the barkeeper two or three times a week during said period.</p> <p>It appeared that the defendant’s husband resided with her, and not at said hotel, but that he daily went to the hotel at about eight o’clock in the morning, and remained there until between nine and ten o’clock in the evening, when he left the same for his home.</p> <p>All of the evidence relied upon by the government to show a breach of the conditions or provisions of said licenses related to acts happening between eleven o'clock at night and half past two or three o’clock in the morning, and to the sale of intoxicating liquors, and also to sales to persons other than guests upon the Lord’s day.</p> <p>The defendant’s husband testified that his instructions to said bar-keeper were given in good faith, and with the intent that the same should be obeyed; and the defendant testified that she wished them obeyed.</p> <p>The defendant testified in her own behalf, and was asked by her counsel what instructions were given by her to her husband, (no other person being present at the time she gave them,) that the bar-keeper at said hotel should not sell intoxicating liquors there in violation of the conditions or provisions of her license, and, for the purpose of showing her good faith, what were her reasons then given to her husband for such instructions. To this question the government objected, upon the sole ground that neither the husband nor the wife could testify as to a private conversation with each other; and the judge excluded it.</p> <p>The defendant asked the judge to rule as follows: “1. If the husband of the defendant, with her consent or by her direction, acting as her agent or as manager of the business at the Occidental Hotel during the time covered by said complaint, gave the bar-keeper full and proper instructions as to his duties under said license for the keeping and sale of intoxicating liquors, with proper warnings as to sales to all persons to whom, under said license, such liquors could not lawfully be sold, the jury are to regard such instructions as given by the defendant. 2. If the jury are satisfied as to the defendant’s good faith as to the giving of such instructions and warning, it is immaterial whether her husband acted in good faith or not. 3. If the jury are satisfied that the defendant had only the bare legal proprietorship of the business at the Occidental Hotel, and took no control, direction, or management thereof, and knew nothing of any violations of law in carrying on said business, she is not liable under this complaint.”</p> <p>The judge declined to give the instructions asked for, but ruled as follows:</p> <p>“ 1. Nothing to the contrary appearing, the natural and just inference from a sale, by a servant employed in his master’s shop, of his master’s goods, there kept for sale, would -be that such a sale was authorized by the master.</p> <p>“ 2. If a sale of intoxicating liquor was made in the Occidental Hotel, during the time alleged in the complaint, by any person employed by the defendant to conduct her business in that hotel, without the defendant’s knowledge, and really in opposition to her will, and the defendant in no way participated in, approved, or countenanced such sale, and this is clearly shown by the defendant, the defendant would not be responsible for such sale.</p> <p>“3. Did the defendant, in good faith, give instructions intended to be obeyed and enforced, that no sales of intoxicating liquor should be made in her hotel by any of the persons employed by her to conduct her business there, in violation of the conditions of her license, and did the defendant know that those instructions were disregarded by the persons so employed, in their management of her hotel, and the intoxicating liquors in it?</p> <p>“ 4. In considering whether the defendant acted in good faith in giving instructions as to the conducting of her business in the Occidental Hotel, and intending that her instructions should be obeyed, the jury may consider the defendant’s relations to and practical connection with the business of her hotel, her means and opportunities of knowing how her business was conducted there in the matter of selling intoxicating liquors, and what information her interest and duty in that matter would reasonably induce her to seek and obtain.</p> <p>“5. An instruction would not be given in good faith, which the person giving it, from the nature of the matter to which that instruction applied, and the character of the persons to whom it was given, could not reasonably expect to be obeyed, and which he did not follow by any supervision or care, for the purpose of ascertaining if that instruction was obeyed.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions to the exclusion of the evidence offered, and to the clauses of the charge to the jury marked 1, 4, and 5.</p>

<p>A captive fox is an “ animal ” within the Pub. Sts. c. 207, § 53.</p> <p>A person who lets loose a captive fox to he hunted by dogs may he convicted of subjecting the fox to unnecessary suffering, under the Pub. Sts. c. 207, § 53.</p> <p>A complaint alleged that the defendant had the custody of a fox, and knowingly and wilfully permitted the fox to be subjected to unnecessary suffering, by turning the fox loose to be hunted by dogs, in consequence of which the fox was hunted by dogs, and thereby subjected to unnecessary suffering. The evidence was that the defendant, in the presence of a number of men with dogs, let tile fox loose within two rods of a piece of woods; that the fox ran into the woods, and was at once lost sight of; and that five minutes afterwards the dogs were let loose and ran after the fox ; and there was no evidence that they were seen again that day. There was also evidence that, half an hour after the fox was released, a fox was found dead in the woods, a quarter of a mile away, with his side torn open. Held, that the evidence was sufficient to warrant the conviction of the defendant.</p> <p>A formal defect in a complaint cannot be availed of for the first time in the Superior Court on appeal.</p>

<p>The surety on a joint and several bond, executed to a husband by his wife as principal, cannot avail himself, in defence to an action against him upon the bond, of the incapacity of the principal to contract with her husband.</p>

<p>At the trial of a criminal case, whether the defendant’s counsel shall be allowed to read to the jury provisions of the statutes other than those relating to the offence charged, instead of stating them orally, is within the discretion of the presiding judge, to the exercise of which no exception lies.</p> <p>If a husband takes no part in keeping a tenement owned by his wife, and used by her as a house of ill-fame, for illegal gaming, or for the illegal sale and illegal keeping of intoxicating liquors, he cannot be convicted of so keeping it, if his wife’s acts are done without his consent and against .liis will; and whether he used all practicable means to prevent her from so keeping the tenement is relevant only on the question of his consent or want of consent. _</p> <p>At the trial of an indictment for keeping and maintaining a tenement used as a house of ill-fame, for illegal gaming, and for the illegal sale and illegal keeping of intoxicating liquors, it appeared that the premises in question were owned and conducted by the defendant’s wife; and that he lived there with her, and was present during, and knew of, her illegal acts. The defendant offered evidence to show that, “from time to time during five years prior to the finding of the indictment, he had ordered, directed, persuaded, and used all reasonable and practicable means in his power to prevent his wife from doing any of the acts charged, and that his wife told him the property was hers and she would do as she pleased.” The judge excluded any evidence on this point relating to any period prior to the first date named in the indictment. Held, that the defendant had good ground of exception.</p>

<p>An action on the Pub. Sts. c. 100, § 24, for sales of intoxicating liquor to the plaintiff's minor children, is an action for a penalty or forfeiture, within c. 197, § 4, and, if brought more than one year after such sales, is barred by the latter statute.</p> <p>The delivery of intoxicating liquor to a minor, in pursuance of a sale to his mother, and for her use, is not a sale to the minor, within the Pub. Sts. c. 100, § 24.</p>

Tort, in two counts, for malicious prosecution. The first count alleged that the defendant, at a term of the First District Court of Bristol, on December 2, 1885, falsely and maliciously, and without any reasonable or probable cause, procured the plaintiff to be complained against, for fraudulently removing and concealing certain personal property, on or about July 1,1885, while a mortgage to the defendant was in force upon the same and unpaid.

<p>At the trial of a criminal case, the defendant’s counsel, in his closing argument to the jury, used this language: “If you acquit the defendant of this charge, how will you answer the question of your neighbors and friends as to why you did it 1 You will answer it as your own consciences must feel here. It was not proven. The government failed to convict him.” The counsel was interrupted by the judge, who refused to allow him to pursue that line of argument, on the ground that it was improper. Held, that the defendant had good ground of exception.</p> <p>At the trial of a complaint for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, evidence of a conversation between a witness for the government, who has testified that he was active in the prosecution, and the complainant, who is not a witness, in relation to the matter, is properly excluded.</p> <p>At the trial of a complaint for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, it appeared that the tenement was a hotel, with a bar-room in the basement; that the bar-room could be entered by passing through the office of the hotel and going down stairs, and also by entering a door in the basement. Two officers, who testified that they made a seizure of liquors in the bar-room, stated that, when they passed through the office, they saw the defendant there. The sheriff of the county testified that he had seen the defendant about the office, looking at the books, writing, and giving directions. Another witness testified that he had seen the defendant about the office, giving directions, and had seen him direct a servant to take a card to a guest’s room. The defendant did not testify as a witness. The judge, after instructing the jury as to the defendant’s right not to testify, instructed them as follows: “ If you find, upon the question of the proprietorship of that hotel, he had it in his power to produce witnesses here not known to the government, who could give you further light upon that question, and he does not choose to do it, you may take that fact into consideration when you come to consider whether there is any reasonable theory donsistent with his non-proprietorship of .that hotel and with the evidence. I do not mean to say that his failure to produce the witnesses here will fill up any gap, if you find any, in the evidence of the Commonwealth, but only that when you are to consider the reasonableness of any explanation of his acts here, if any have been proved, with regard to that hotel, consistent with his not being the proprietor of it, you may take into consideration the fact whether or not there is other evidence in his power upon that question which he could place before you.” Held, that the defendant had no ground of exception.</p>

<p>An action against an executor, for breach of an agreement to purchase land, made by his testator, cannot be maintained, if there were defects in the plaintiff’s title of such a kind that he was never in condition to perform his part of the contract, and the testator did not repudiate the contract, but the plaintiff granted delay at his request, and the term of such delay had not expired at his death, and no offer to carry out the contract was made to the defendant, and no demand made upon him before bringing the action.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant town. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows :</p> <p>The notice, duly served on the defendant, stated “ that, while travelling on the highway from Somerset to Dighton across the Broad Cove Bridge, so called, on the 29th of May, 1886, between 5 and 6 o’clock P. M., in consequence of the narrowness of the road and the insufficiency of the barrier, and for want of a suitable wall, railing, or fence, when within fifteen feet of the bridge on the Somerset side thereof, and on the easterly side of the highway, my horse and team got partly over the wall, and I was thrown out of my carriage and severely bruised and injured, and my horse and carriage were also hurt and injured.”</p> <p>It was proved, or admitted, that the road in question was laid out by the county commissioners, and that by statutory authority the commissioners laid out and constructed Broad Cove Bridge and the approaches thereto, and the walls, railings, and barriers. Broad Cove is an inlet of Taunton River, and is tide water. The work was partly in Somerset and partly in Dighton, the middle of the channel, which was the middle of the bridge, being the dividing line. The defendant town was charged with the care and maintenance of the southerly part, which was where the accident happened, and had ever since, down to and including the day of the accident, maintained and kept in repair so much of said road and bridge as were within its limits. There was no question made but that a barrier or wall was necessary to prevent travellers from going off and into the water, which was some ten feet deep, and the surface of which was from eight to ten feet below the level of the top of the wall, and on the east side of the bridge or causeway. The barriers were constructed of stone, and on the east side were from two feet to two feet and three inches in height and twenty inches thick, and solidly built, and at the place of the accident were two feet high. They had been, up to and including the day of the accident, kept and maintained in substantially the same condition as left by the commissioners when they were turned over to the town, except as hereinafter stated. The work was done in 1854. In 1885, the highway surveyor of the town had rebuilt and repaired the same, and raised the east wall some six inches in height.</p> <p>' On the west side of the bridge, and in Broad Cove, persons engaged in oyster fishing anchored their boats, and sometimes tied them to the wall on the west side of the bridge; and this had been done for several years prior to the time of the accident. About four hundred feet to the west of the bridge was a railroad, which crosses the highway to the south of the bridge and between that and the village of Somerset.</p> <p>The plaintiff introduced evidence, that, on May 29, 1886, between five and six o’clock in the afternoon, he was travelling on said highway, on the Somerset side, and along the causeway leading to the bridge; that his horse was gentle, his rate of speed being then six miles an hour; that he held a taut rein on his horse; that his horse was frightened by the oyster boats on the west side of the bridge, and suddenly shied to the east side of the way, and ran into and upon the wall or barrier on the east side; that his horse got up, on to, and astride of the wall with his hind legs, while his fore feet rested inside, on the road; that the right forward wheel of his open buggy went on to the wall, and over to the east side, and the axle rested on the wall, and the left wheel was in the road on the inside, and the right hind wheel also went up on to the top of the wall; that he was thrown out, but still held the reins ; that his horse and wagon came back into the road; and that it was all done and over in an instant. The accident occurred from fifteen to twenty feet from the bridge.</p> <p>The plaintiff had travelled over the road more or less since April 1, 1885, to and from Somerset and Dighton, and knew of the oyster boats and of the walls of the bridge. The plaintiff contended that the wall was defective, because too low; and that the accident was due to that defect.</p> <p>The defendant introduced evidence tending to show that the horse only reared up, and placed his fore feet on the top of the wall.</p> <p>This was all the evidence in the case as to the place, the time, and the cause of the accident, and as to the laying out, construction, and repair of the bridge, road, causeway, and wall. The jury took a view of the premises.</p> <p>For the purpose of proving that the town had notice of the defect, the plaintiff called one Dr. Shurtleff, and offered to show by him that he had met with an accident similar to that which befell the plaintiff, and at or near the same place; but, it appearing that the witness had had no talk with any of the town officers about the accident, he was at that stage of the case asked nothing by the plaintiff in regard to the accident. Subsequently, he was recalled by the plaintiff, and, upon the plaintiff’s counsel stating that he expected to show that Dr. Shurtleff had spoken generally of the accident in the village of Somerset, ■where he lived, and where two of the three selectmen lived, and should contend that it was competent for the jury to find, if such should appear to be the fact, that the selectmen either knew, or by the exercise of reasonable care might have heard, of the accident, the judge ruled that it was competent for the plaintiff to put in evidence of the accident, as bearing on the question of notice to the authorities of the town, but that the evidence was not to be considered by the jury as tending to show that there was any defect, or that there had been any accident. The plaintiff thereupon put the following question: “ Without asking you what the accident was, how generally did you speak of it around the village?” and he answered, “Very little indeed.” The witness further stated, that he had spoken of it but very few times, and to but two or three persons; and the plaintiff put no further questions, and pursued the matter no further.</p> <p>The defendant called as a witness one Edward Buffington, who testified that he was a deputy sheriff, living about a mile and a half from the village of Somerset, but that he was in the village nearly every day, and his business led him through all parts of the village, and brought him in contact with many different people, and he had never heard the accident to Dr. Shurtleff spoken of.</p> <p>At the close of the evidence, the defendant asked the judge to rule that, on the evidence, the defendant was not liable, and to direct a verdict for the defendant. The judge refused so to do.</p> <p>The defendant then asked for the following instructions to the jury: “1. If the injuries for which the plaintiff seeks to recover were due in whole or in part to the narrowness of the highway, the plaintiff cannot recover. Narrowness of the highway, duly located, is not a defect for which the defendant is liable. 2. If the plaintiff’s horse was frightened by an object outside of the limits of the highway, and while so frightened and because of said fright ran into and upon the railing or wall, and the injuries were received of which the plaintiff complains, the plaintiff cannot recover. Such injuries would not be caused solely by a defect in the highway, or want of sufficient railing or barrier. 3. If the plaintiff’s horse, wagon, or himself would not have come in contact with the railing or wall, nor the accident have occurred if the team had passed on in the course in which the plaintiff was driving, if the plaintiff’s horse had not been frightened, the plaintiff cannot recover. 4. The fact that boats with sails were anchored in Broad Cove, and frightened the plaintiff’s horse, would not render the town liable. Broad Cove on the evidence is tide water, over which the town has no control. 5. If the highway and barriers where the plaintiff was injured were in good repair, and in substantially the same condition as constructed and left by the county commissioners when they located the highway and built the barriers or walls, the plaintiff cannot recover. 6. If the plaintiff’s horse, by reason of fright, became uncontrollable, so that the plaintiff could not stop him, or direct his course, or exercise control over his movements, and in this condition came upon the barrier or wall which was defective, the plaintiff cannot recover. 7. The defendant was not obliged to maintain a wall or barrier that under any and all circumstances, such as the rearing up of a horse, would prevent injury to those travelling on the highway. If the wall or barrier in question here was suitable for the ordinary purposes of travel upon such a road in a country town, it was sufficient. If the plaintiff’s horse reared up and placed his fore feet on the top of the wall, but did not go over, and the injuries complained of were thus received, the plaintiff cannot recover.”</p> <p>The judge gave the first, fourth, and sixth requests, and, on the other questions raised, instructed the jury in substance as follows:</p> <p>It makes no difference whether the accident was occasioned by the plaintiff’s horse being frightened by an object either inside or outside of the limits of the highway.</p> <p>The narrowness of the road is not in itself anything which constitutes a defect in this case. It is not required of towns that they should fence their highways, or that they should erect railings or barriers to prevent travellers from driving out of the limits of the highway, or to prevent unmanageable horses from escaping from the limits of the highway. The railings or barriers are required only when some steep bank or other dangerous object or place exists so near to the travelled road as to make it dangerous to travel on the road. In this case the evidence tends to show that this highway was located twenty feet wide through water where the tide rose and fell on each side. It is not contended by the defendant but that some kind of a railing or barrier was necessary at this point. The question would be whether the railing or barrier was a suitable one. In deciding that, it is for the plaintiff to prove, by a fair preponderance of the evidence, that it was not a suitable railing or barrier. Whether or not it was a suitable railing or barrier depends upon whether it was suitable to do that to the ordinary travel which might be expected there, which a railing or barrier is required to do.</p> <p>Towns are not required to provide barriers to prevent a man from deliberately straying out of the highway, or unmanageable horses from escaping from the highway, nor for persons to sit upon or lean against; neither are they bound to erect and maintain barriers to prevent the getting off from the highway and into dangerous places of extraordinary loads, that is to say, if the strength of a barrier is called in question, if it is sufficient to keep in the highway the ordinary load and team which might be expected along there. If a team of extra weight comes along there and breaks it down, the question would be whether or not it was suitable for the ordinary and usual and expected travel. That would decide the question whether or not it was a suitable barrier. So, in order to determine whether or not there was a suitable barrier, you are to take into account the road as it was, you are to take into account the nature and amount of travel which would reasonably be expected to pass over it, you are to take into account all the circumstances which might reasonably and naturally and ordinarily be expected to attend the travel over and upon that road, and you are to say that the object of the rail is not for people to sit upon or to walk upon, that it is in order to protect them from getting into dangerous places in immediate proximity to the highway by the ordinary things which might be expected to happen upon a highway.</p> <p>If you find that the railing itself was not such a railing as ought to have been there, then you can find the way defective by reason of its not having been a suitable railing. But it is not decisive of the case if you find that, because, even if there were not a suitable railing in the place, and a railing were required, the fact that there was not a suitable railing is not sufficient to make the town pay damages for an accident that happened at the point where the railing was insufficient, unless you are also satisfied that the presence of a suitable railing would have prevented the injury and the accident. That is to say, you may be entirely satisfied that the railing was not suitable or sufficient, but the accident may be of such a nature that you fail to be satisfied that the presence of a suitable railing would have prevented the injury; and if it would not have prevented the injury, then you cannot give the plaintiff compensation in such a case for his injury, because, even if the town had discharged its duty, it would not have prevented the injury from occurring. So if you find that there was a want of a suitable railing, the plaintiff must also satisfy you, by a fair preponderance of the evidence, that, if there had been a suitable railing, the accident and injury would not have occurred.</p> <p>The evidence tended to show that the plaintiff’s horse had shied, and had been for some portion of time without his control. The law with reference to that matter is this. If a horse shies, and an accident occurs, if the shying comes because the horse has a vicious habit of shying, then the man would not be in the exercise of due care in driving such a horse; and an accident occurring from the shying of a horse which came in consequence of a vicious habit of the horse would not be an accident for which the plaintiff could recover. But the law presumes that even gentle horses — or rather it recognizes the fact — may sometimes momentarily and occasionally shy and be without the control of the driver. The law with reference to that is to be stated in this way: If from no vicious propensity of the horse, but from some cause which makes an ordinarily gentle and safe horse suddenly start and shy so that he is momentarily without the control of his driver, if the control of the horse would have been immediately regained by the driver if there had been no difficulty or defect in the way, and, while in this condition of want of control, he comes upon a defect, the plaintiff may recover, provided it appears to the jury as a fact, by a fair preponderance of the evidence, that if the defect of a want of a suitable railing, which is claimed as the defect, had not existed, the driver of the horse would have regained the control of the horse before the defect was encountered, that is, before the obstacle that did the damage was encountered, and so the accident would have been prevented. That is to say, applying the illustration, if one’s horse sees some object, and for the purpose of this case I will say either within or without the limits of the highway, and it is ordinarily a safe and gentle horse, and it is suddenly frightened by the sight of this object and so shies, and if while in that act of shying, and before anything like a defect or want of repair in the highway has contributed in any way to what is happening, the driver is thrown out, he cannot recover for any damage he receives in being thrown out, because at that time the horse is beyond his control, although the horse might presently have come under his control again. He would not be prevented from recovery by reason of the fact that momentarily the horse had been out of his control; but for an accident that happens while the horse is out of his control by reason of his shying he cannot recover.</p> <p>When the horse shies and comes upon something which is claimed to be a defect, and which it is claimed the vehicle would not have come in contact with except for the want of a suitable railing, then the question for the jury is this: Can we say that, if there had been a suitable railing there, the control of the horse would have been regained by his driver, and the accident and injury would not have happened ? If the plaintiff makes it appear, by a fair preponderance of all the evidence, that that was the state of things, then he can recover. If he fails to show that, then he cannot recover.</p> <p>There is, perhaps, in this case a very fine point. It is contended here that, if the wall had been higher, the accident would not have happened. It is conceded upon both sides that a wall or barrier of some kind was necessary. This may be the case, that what is erected as a barrier or wall upon the side or within the limits of a highway by the town may be of such a character or nature as in itself to constitute a defect. But the jury must remember this, that no barrier or railing can be erected which is not an obstacle to the progress of a horse or carriage. Its object is to obstruct and stop the progress of a team beyond its limits. So if a horse suddenly shies, and should by shying throw the team against a barrier, and the obstruction caused by the barrier injured the horse or the wagon, or threw out the man, that would not be a cause of action against the town, because it would be the natural and expected result of the very operation of the barrier as a barrier. But on the other hand, if this barrier was so constructed as in itself to be a dangerous object in the highway, and a defect in the highway, the fact that it was intended also as a barrier would not necessarily prevent the plaintiff from recovering upon the ground that it was, although a harrier itself, a defect or an obstacle in the highway. In other words, the fact that a certain structure by the side of the highway or in the highway was erected or maintained by the authority of the town, with the intention of having it as a railing or barrier, — a railing or barrier of some kind being necessary at that place, — would not necessarily protect the town from damage for everything that could happen by the existence of that thing there. The fact that it was intended as a barrier would not make it, so to speak, protected. But there would be the question whether or not it was of such a shape and character that it was a defect in the highway.</p> <p>Then you come to the question whether or not a railing which is too low may also constitute a defect, and for that reason the town or city be liable under some circumstances. The claim here is made that the wall, being about two feet in height, ought to have been higher, and, if it had been higher, the accident would not have happened. With reference to that, all I can say to you is this: if you shall find that the wall as it was there was not a suitable railing or barrier, taking into account the whole location of the place, and the kind and amount of travel, and all those things, and if you shall find that a higher wall would have prevented the accident and injury to the plaintiff, would have enabled the plaintiff to recover the control of his horse, and would have prevented any accident happening, then you may find for the plaintiff, if you believe that that want of height in the railing was the sole cause of the injury.</p> <p>It is not claimed here that the barrier was of any improper material, or that its perpendicular surface next to the road constituted any defect. For any injury which was occasioned by the striking of the wagon or of the horse against the perpendicular side of the wall, you cannot allow damages. If the plaintiff had been thrown out from his carriage by the striking of the wagon or of the horse against the perpendicular side of the wall, the horse shying at the time, for that injury the plaintiff could not recover. But if solely because this wall was too low, and you believe that the injury occurred by reason of the horse and wagon getting on top of the wall, and, if the wall had been sufficiently high for the purpose of ordinary travel there, the horse and wagon would not have got upon the wall, but the control of the horse would have been regained, and the accident averted, then for the consequences of the accident the plaintiff might recover, so far as they came from the horse or wagon getting on the wall because too low. That, as it seems to me, is as far as the law would allow the plaintiff to go, and for the purposes of the case I instruct you that that is the law to govern the case.</p> <p>There is certain evidence in the case that was introduced solely on the question of notice, which you must not consider in any other view of the case. That is, there has been some intimation in the case that some difficulty may have occurred upon this bridge or causeway before. It would not be competent for a plaintiff to show that other accidents had happened at the same place in order to show that the way was defective. If there is before you any evidence tending to show anything of that kind, it is not to be considered by you upon the question as to whether there was any defect in the way or not. It simply bears on the question of notice. It only bears upon that in this way. It is competent for witnesses to say, that upon such and such a time they gave such and such information to the authorities of the town. The question of notice is to be tried upon what were the circumstances of any alleged notice.</p> <p>There was testimony in the case, other than that of Dr. Shurtleff, to which the last instruction would apply.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>An assignee in bankruptcy made a contract with the bankrupt to convey to Mm a parcel of land belonging to the estate, and was authorized by a decree of court so to convey it. At the request of the bankrupt, after the price was paid, the land was conveyed to the bankrupt’s wife, and the deed was delivered to him as Ms wife’s agent. Held, that the conveyance was valid, and that the bankrupt could not maintain an action for a subsequent trespass committed on the land.</p>

<p>The service upon the creditor’s attorney of the original notice of the desire of a person arrested on execution to take the oath for the relief of poor debtors is, so far as the rights of the creditor are concerned, a sufficient compliance with the requirement of the Pub. Sts. c. 162, § 32, that such notice shall be served by giving to the creditor, his agent or attorney, “ an attested copy thereof.”.</p>

<p>In an action upon a paper writing, signed by the defendant, a married woman, and reciting the receipt from the plaintiff of a certain sum to be paid to him in the stock of a certain corporation, or in cash, within a time named, the plaintiff testified that he and the defendant’s husband made a settlement, at the latter’s house, of demands which the plaintiff had against him ; that the husband proposed to give to the plaintiff in settlement the stock named in the paper declared ■ on, or a certain sum, in ten days; that the husband said that the stock was in the defendant’s name; that she was in the house, but was not present in the room with them; that the husband wrote the agreement, and left the room to get his wife’s signature to the paper; and that he soon returned with the paper signed by her. The defendant and her husband were present at the trial, but did not testify. Held, that the judge properly submitted to the jury the question whether the defendant knew of the consideration for her agreement.</p>

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

<p>Bill in equity, by certain legatees under the will of John Tomlinson, to obtain contribution from other beneficiaries under said will. At the hearing in the Superior Court, a decree was ordered for the plaintiffs; and the defendants appealed to this court. The facts appear in the opinion.</p>

Indictment, in two counts, for the embezzlement, on December 15,1886, and on January 15,1887, respectively, of “thirteen hundred and twenty pairs of shoes, each pair of the value of one dollar, of the property” of Warren D. Hill and Frank B. Lippincott. ■ In the Superior Court before the jury were empanelled, the defendant moved to quash the indictment, for the following reason; “ Because there is in said indictment no sufficient allegation or description of the property…

<p>Complaint alleging that the defendant, on July 17, 1887, at Haverhill, kept intoxicating liquors with intent to sell the same unlawfully in this Commonwealth. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows:</p> <p>Austin 0. Sprague, a police officer, testified for the government to facts tending to show that liquor was kept for sale on the day named in the complaint in a certain saloon, in Haverhill, and also as to the presence of the defendant in said saloon upon that day, while a search was being made therein for intoxicating liquors, and to certain acts of the defendant at different times before said day tending to show that the defendant was the keeper of the place, it appearing that Martin E. Snee, the defendant’s brother, was not present on said day. On the cross-examination of Sprague, it appeared that he had seen Martin E. Snee about said saloon before said day, but not so frequently as he had seen the defendant; and that he had never seen any specific acts on the part of Martin E. Snee about said saloon.</p> <p>Sprague was also asked, on cross-examination, if he had not sworn to a complaint to search, charging said Martin E. Snee as the owner of liquors at that place, and he answered, without objection, in the affirmative.</p> <p>Sprague was then shown a certified copy of a complaint to search, and identified the same as a true copy of the process which he had sworn to upon the said July 17, against Martin E. Snee.</p> <p>The defendant introduced evidence tending to explain his presence as an innocent one, on said day; also the testimony of the owner of the building that Martin E. Snee was the tenant of said saloon at said time, and other testimony tending to control the testimony of Sprague as to acts of the defendant prior to said date. The defendant then offered in evidence said certified copy, as tending to contradict Sprague in his testimony, and for any purpose for which it might be competent. To this evidence the government objected, and the judge excluded it.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Contract, upon an account annexed, for services rendered to Samuel Graves, the defendant’s intestate.

<p>Contract, against Nathan F. Blake and John G. Daggett, upon a poor debtor’s recognizance, entered into on September 20, 1886, 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 Bacon, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It was admitted that the defendant Blake was duly arrested upon an execution in favor of the plaintiff, on September 20, 1886, and on the same day, before Edward J. Jones, a master in chancery, entered into the recognizance declared on ; that, on October 13, 1886, Blake, desiring to take the oath for the relief of poor debtors, applied to said Jones, as master in chancery, to fix a time and place for his examination ; and that thereupon Jones issued a notice to the plaintiff, fixing the time and place of the examination as October 15, 1886, at his office in Boston, at three o’clock in the afternoon.</p> <p>It was further admitted, that, at the time and place named therein, Blake appeared before said master in chancery, and, no one appearing in behalf of the plaintiff, took the oath for the relief of poor debtors in the form prescribed by statute, and was discharged. Before the hearing, the attorney for the plaintiff appeared before the master in chancery, and objected to the master’s jurisdiction on account of the service of the notice, and left before the expiration of the hour.</p> <p>The defendant introduced evidence tending to show that the notice was handed by Blake to one Moses P. Brown, a constable, on October 14, for service upon the plaintiff; that Brown took the notice and called with it upon the plaintiff at the latter’s residence and place of business in East Boston, between twelve and one o’clock in the afternoon of October 14; that he then read the notice to the plaintiff, and asked him if he understood it, to which the plaintiff replied, “ Yes; ” that he then asked the plaintiff if he would come, to which the plaintiff replied, “ Yes; ” that Brown and the plaintiff then had some talk in regard to the plaintiff’s claim against Blake, and Brown left; that the next morning Brown, in preparing his return, found that the service of the notice should have been by copy, and thereafter he prepared a copy, dating the copy October 14, and at about eleven o’clock on October 15, the day of the hearing, called with the copy at the plaintiff’s residence, and, not finding him in, left it with the plaintiff’s wife. Brown then made his return upon the notice.</p> <p>The plaintiff introduced evidence tending to show that, at the time the constable read to him the notice, the constable asked him if he understood it, and he replied, “Yes;” that the constable asked him if he would come, and he replied, “ I will see about it.” The plaintiff also testified, on cross-examination, that he knew Brown was a constable; and that he understood the notice when it was read to him.</p> <p>At the close of the evidence, upon the plaintiff’s motion, the judge instructed the jury that there was no evidence for the jury of waiver of the service of the notice in the form provided by law; and directed a verdict for the plaintiff. The defendant Daggett alleged exceptions.</p>

<p>A. borrowed a sum of money from B., and gave him a promissory note therefor, secured by a mortgage of personal property which he liad formerly owned, but which he had previously conveyed to his wife, through a third person. After-wards A., not having paid any part of the sum so lent to him by B., borrowed from B. another sum, and gave him a promissory note for the amount of both loans, secured by another mortgage of the same property; and B. surrendered to A. the first mortgage and note. Both mortgages were duly recorded. A. died without having paid any part of the second mortgage, and B. took possession of the property under a foreclosure of the mortgage. A.’s wife was present and heard A. and B. making the arrangements for the first loan, and knew such loan was to be made on the security of a mortgage of her property, but did not inform B. of her claim to the property; and B. did not know of such claim until after A.'s death. In an action by A.'s wife against B. for conversion of the property, the judge ruled that the plaintiff’s conduct would create, an estoppel against her as to the first mortgage and note, but not as to the second, if the first were in fact paid by the second; and that the giving of the second was prima facie payment of the first. Held, that the defendant had no ground of exception.</p>

Contract, on an account annexed, for work and labor of the plaintiff’s minor son, from March 31, 1884, to March 18, 1885, and from October 5, 1885, to January 4, 1886, at $3 a week, amounting in all to $189. Writ dated May 29, 1886. Answer: I. A general denial. 2.

<p>In an action for personal injuries occasioned to the plaintiff hy falling into a cesspool upon premises owned by the defendant, and occupied by the plaintiff as a tenant at will, there was evidence that the plaintiff did not know of the existence or location of the cesspool; that it was in the yard she had hired and was entitled to use; that it was covered with boards, over which were from four to six inches of earth on which grass and weeds were growing; that it presented the same appearance as the rest of the yard ; that it had never been pointed out to her; that it wag where she passed over it in her use of the. yard; that the boards which covered it were rotten and decayed; that, in stepping upon this covering of the cesspool, she sank into it and was injured; that this cover had been repaired with old boards some time before by the defendant’s direction; and that the defendant was present when this was done. Held, that this evidence should have been submitted to the jury.</p>

Hearing before C. Allen, J., who ordered the warrant to issue, and reported the case for the consideration of the full court; such decree to be entered as justice might require. The facts appear in the opinion.

<p>The operation of the statute of limitations upon a promissory note is not, under the Pub. Sts. c. 197, § 11, suspended by the temporary absence of the maker from the State, but only by absence of such a character as works a change of his domicil.</p> <p>In an action against an officer, for negligently suffering the escape of a person whom he had arrested upon a writ sued out by the plaintiff, the latter is not entitled to recover, as the measure of damages, the amount of his debt against the escaped person, but only such damages as he proves that he has actually sustained.</p> <p>In an action against an officer for negligently suffering the escape of a person whom he had arrested upon a writ sued out by the plaintiff, the burden of proof is upon the plaintiff to show that he had a valuable debt against the escaped person, which he has lost by the act of the officer; and this burden is not sustained by showing that he holds a promissory note signed by such person, which, on its face, was at the time of the escape barred by the statute of limitations.</p> <p>In an action against an officer for negligently suffering the escape of a person whom he had arrested upon a writ sued out by the plaintiff, if the defendant relies, in mitigation of damages, upon the fact that the plaintiff’s debt against the escaped person is barred by the statute of limitations, he is not required to set up such defence in his answer.</p>

Complaint for keeping and maintaining a common nuisance, to wit, a shop, in Malden, used for the illegal sale and illegal keeping of intoxicating liquors, on September 10, 1886, and on divers other days and time's between that day and September 25, 1886.

Complaint to a trial justice, for keeping and maintaining a certain common nuisance, to wit, a tenement in Natick, used for the illegal sale and illegal keeping for sale of intoxicating liquors, on October 1, 1886, and on divers other days and times between that day and November 20,1886.

Complaint for keeping, at Somerville, intoxicating liquor with intent unlawfully to sell the same in this Commonwealth.

<p>It is no ground for an arrest of judgment in a criminal case, that the co£y of the record transmitted to the Superior Court by the trial justice who tried the case is attested by him as “ justice ” only.</p>

Contract, in three counts. The first count was for money had and received to the plaintiff’s use. The second count was for a balance due under an oral agreement. The third count was for a balance found due on an accounting together. Answer : 1. A general denial. 2. Accord and satisfaction. 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>The record of a police court, to which a complaint was made, recited that the defendant, "being asked whether he is guilty or not of the offence within charged upon him, pleads nolo contendere, but, after hearing divers witnesses duly sworn to testify the whole truth, and fully understanding the defence of said defendant, it is adjudged by the said court that said defendant is guilty of said offence; ” and that the defendant was sentenced, and appealed therefrom to the Superior Court. Held, that the record did not sufficiently show that the defendant's plea was accepted by the court, and sentence passed thereupon; and that the defendant had the right to plead anew in the Superior Court, and to have a trial by jury.</p>

<p>If the charter of a city provides that its by-laws or ordinances shall take effect, and be in force, from and after the time therein respectively limited, without the sanction of any court, or other authority whatever, the provisions of the Pub. Sts. c. 27, § 23, and of c. 28, § 2, as to publication of by-laws or ordinances, do not apply.</p> <p>An ordinance of a city, providing that “ no person shall place or carry, or cause to be placed or carried, on any sidewalk, any show-board, placard, or sign, for the purpose of there displaying the same,” is reasonable and valid.</p> <p>At the trial of a complaint for a violation of an ordinance of a city, providing that “no person shall place or carry, or cause to be placed or carried, on any sidewalk, any show-board, placard, or sign, for the purpose of there displaying the same,” it appeared that the defendant walked upon the sidewalk o'f a street in the city, having over his shoulders a piece of oil cloth, which he wore like a vest or coat, on which was printed the inscription, “ Lasters on strike. All lasters are requested to keep away from P. P. Sherry until the present trouble is settled. Per order L. P. U.” Held, that the defendant’s act was a violation of the ordinance.</p>

<p>At the trial of an action of tort, brought by an administrator, under the Pub. Sts. c. 112, § 213, against a railroad corporation, for the death of the plaintiff’s intestate, caused by a collision between a locomotive engine of the defendant and a wagon in which the intestate was driving, at a place where the highway crossed the railroad at grade, there was evidence that between two and three o’clock in the morning the intestate delivered milk to a customer who lived a quarter of a mile from the crossing, and that he had another customer near the crossing on the farther side; that his wagon was more than half-way over the crossing, which was one hundred and sixty-eight feet wide, when the gateman cried, “ Stop,” and shut the gates; that the intestate whipped up his iiorse, the gate-man told him to come on and opened the gate, and the wagon was struck by the locomotive engine, and the intestate instantly killed; and that no bell was rung or whistle sounded, on the locomotive. Held, that the evidence would warrant an inference that the intestate was awake when approaching the crossing, and a finding that the neglect to ring the bell or sound the whistle contributed to the injury; and that the court could not rule, as matter of law, that the intestate was guilty of gross negligence.</p>

<p>Contract upon a policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, against loss by fire, on a building in Brockton. Trial in the Superior Court, before Knowlton, J., who ordered a verdict for the plaintiff, and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>. At the trial of an indictment in several counts for forging and uttering twelve bills of parcels, the defendant filed a motion to quash the indictment, but, instead of arguing the motion at the outset, consented that the court should reserve all his rights under it, with the understanding that it would be disposed of at a later stage of the case. After the case for the government was closed, the motion to quash was argued, and the presiding judge quashed several of the counts of the indictment; but refused to strike out the evidence introduced under these counts. Held, that, if the evidence was admissible under the remaining counts, the defendant had no ground of exception.</p> <p>At the trial of an indictment for forging and uttering certain receipted bills of parcels, the persons whose names appeared on the bills as signers testified that they did not sign them, and that the bills did not represent genuine transactions. The defendant, who appeared on the bills as the purchaser of the goods therein mentioned, used the bills, certified upon them that A. was the owner of the goods, received money for them from A., and gave A. his promissory notes for the amount. Held, that the evidence was sufficient to warrant a conviction.</p> <p>At the trial Of an indictment for forging and uttering certain receipted bills of parcels, evidence is admissible, on the question of the defendant’s knowledge that the bills were forged, that he fabricated certain other unreceipted bills of a like character, and uttered them to the same person to whom he uttered the receipted bills, by a continuous series of transactions, extending some months later than the latest forgery mentioned in the indictment.</p> <p>An indictment for forgery described the instrument alleged to be forged as an acquittance and discharge for money, and set forth a bill of parcels purporting to be receipted. Held, that the instrument was not misdescribed.</p>

Complaint, alleging that the defendant, at Newton, on October 15, 1886, “ did sell to one Michael O’Marra intoxicating liquor.” Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows; Michael O’Marra testified for the government that he was eleven years of age in October last, and then lived at Newton, with his father, mother, and grown-up sister, in the father’s house; that on said day his father gave him fifty cents, and…

Complaint, on the Pub. Sts. e. 101, §§ 6, 7, for keeping and maintaining a common nuisance, to wit, a tenement in Cambridge, used for the illegal sale and illegal keeping of intoxicating liquors, on May 1, 1887, and on divers other days and times between that day and J une 4,1887.

Complaint, under the Pub. Sts. e. 112, § 206, by William F. Batchelder, to the Justice of the Third District Court of Eastern Middlesex, alleging that the defendant, on February 20, 1887, at Cambridge, “ wilfully did throw a certain missile, to wit, a stone, at a certain street railway car of the property of the Cambridge Railroad Company, a corporation duly established by law.” In the Superior Court, on appeal, before the jury were empanelled, the defendant moved to quash…

Complaint, to a trial justice, on the Pub. Sts. e. 101, §§ 6, 7, for keeping and maintaining a common nuisance, to wit, a tenement in Hopkinton, used for the illegal sale and illegal keeping of intoxicating liquors, on May 1, 1886, and on divers other days and times between that day and November 1, 1886.

Contract, for breach of the following instrument, under seal, executed by the parties in the presence of one witness : “ This agreement, made this twenty-seventh day of December, A. D. 1879, by and between the United Society, called Shakers, of Pittsfield and Hancock in said county of Berkshire,-and Franklin A. Brooks of North Adams in said county of Berkshire, witnesseth: That the said United Society agrees to sell and Brooks agrees to buy all the hemlock bark and all the…

Bill in equity against the executors of the will of Willis Phelps, John Wesley Phelps, and Willis Phelps, 2d, alleging the following facts: On March 26, 1885, the plaintiff was divorced from John Wesley Phelps, and said John was ordered by a decree of this court to pay her, as alimony, the sum of $1200 annually, in equal quarterly payments, after the date of the decree.

<p>Contract upon a policy of reinsurance. The case was submitted to the Superior Court, and, after, judgment for the plaintiff, to this court, on appeal, on agreed facts in substance as follows:</p> <p>On October 27, 1884, the plaintiff issued a policy of insurance, numbered 264,895, on certain property of the Indianapolis Cotton Manufacturing Company, against loss by fire, for the term of one year from the date of the policy, “ loss, if any, payable to George B. Yandes, trustee for mortgage bondholders, as his interest may appear.” By the terms of the policy it was to become void, “ if, without the assent in writing or in print of the company, any change shall take place in title or possession.”</p> <p>On the same day, the defendant issued to the plaintiff the policy declared on. This policy was made by filling out the blank form used by the defendant in insuring property directly, and not the form used for reinsurance, and by attaching to the policy a slip, called a reinsurance slip. On this slip was the following; “$2500 on its [the Manufacturers’ Insurance Company’s] liability as insurers under its policy Ho. 264,895, issued at its Indianapolis agency to Indianapolis Cotton Manufacturing Company for $5000, as follows. [Then followed a description of the property.] This policy to be subject to the same risks, conditions, valuations, indorsements, privileges, assignments, and mode of settlement as are or may be assumed or adopted by the Manufacturers’ Insurance Company, and the loss, if any, and expense of adjustment, payable pro rata at the same time and in the same manner as by said company. Other reinsurance permitted.” On a blank space in the. policy were written these words; “It is understood and agreed that the Manufacturers’ Ins. Co. of Boston will retain at its own risk an amount upoiv this risk equal to this policy.”</p> <p>Then followed certain printed provisions, among which were these:</p> <p>“1. If, ... . without the consent of this company written hereon, .... the property be sold or transferred, or upon the passing or entry of a decree of foreclosure, or upon a sale under a deed of trust, or if the property insured be assigned under any bankrupt or insolvent law, or any change take place in title or possession (except in case of succession by reason of the death of the assured), whether by legal process or judicial decree, or voluntary transfer or conveyance; or if this policy shall be assigned before a loss without the consent of this company indorsed hereon, .... this policy shall become void.”</p> <p>“ 3. When property has been sold, and delivered or is otherwise disposed of, so that all interest or liability for loss thereon by fire or otherwise on the part of the assured herein named has ceased, this insurance on such property shall immediately terminate.”</p> <p>“ 7. The use of general terms or anything less than a distinct specific agreement clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction herein.”</p> <p>The property insured was on October 27, 1884, the property of the Indianapolis Cotton Manufacturing Company. It was mortgaged for over $40,000 to George B. Tandes, trustee, as security for certain negotiable bonds.</p> <p>The plaintiff’s policy was taken out by said cotton manufacturing company, in accordance with a covenant in said bonds, to insure the property mortgaged for the benefit of the mortgagee, but this was never communicated to the defendant company, and the premiums were paid by said cotton manufacturing company. Prior to December 6, 1884, a suit was brought to foreclose said mortgage; and, in pursuance of a decree made in said suit, a foreclosure sale of said property was made on December ■ 6, 1884. At this sale, the property was bid in by Henry Schnull, trustee, on behalf of the-holders of the mortgage bonds aforesaid. The sum bid was less than the amount due under the mortgage. By the laws then in force in the State of Indiana, the purchase by Schnull vested the title to the property in him, subject to a right on the part of the Indianapolis Cotton Manufacturing Company to redeem the property mortgaged by paying the amount due upon the mortgage, with interest, within one year after the date of the sale. Upon December 6, the policy issued by the plaintiff was assigned by the cotton manufacturing company, with the consent of Yandes, to Schnull, as trustee, and said assignment of the policy, and the change in the title and possession of the property insured, stated above, were both duly consented to, in writing, by the plaintiff company, the written consent being indorsed on the back of the policy issued by the plaintiff, but were not known or consented to by the defendant company.</p> <p>On December 27, 1884, the property insured was damaged by fire, under such circumstances as to create a liability on the part of the plaintiff company under its policy. Notice of the loss was given by the assured to the plaintiff company on December 29, 1884, and a statement in writing in regard to the loss, in the form required by the plaintiff’s policy, and sworn to by the insured, was rendered to the company on January 6, 1885, and Schnull did all things necessary to entitle him to the payment by the plaintiff company of the loss under said policy. The total amount of insurance on said property, including the plaintiff’s policy, was $30,000. The plaintiff company duly adjusted with Schnull the amount of damage to the property insured at the sum of $24,000, and it was agreed that the immediate loss and damage to the property insured, estimated according to the actual cash value of the property at the time of the loss was $24,000. The plaintiff’s portion of the total loss, namely, $4000, was on January 9, 1885, paid by the plaintiff to Schnull, as trustee. The plaintiff incurred expenses in the adjustment of said loss, amounting to seventeen dollars and fifty cents, and these expenses were reasonable and proper under the circumstances.</p> <p>Notice of the fire and loss was given by the plaintiff to the defendant on Monday, December 29, 1885, the same day on which the notice was given to the plaintiff by Schnull, and proofs of loss, as required by the defendant’s policy, were duly rendered by the plaintiff, and received by the defendant at the Indianapolis office on January 10,1885. The plaintiff retained, at its own risk, an amount equal to the defendant’s policy. The plaintiff demanded from the defendant, on said January 10th, the payment of $2000, its proportion of the loss on the property insured, and $8.75, being one half the amount of the expenses incurred in the adjustment.</p>

<p>A policy of insurance was issued, in the form prescribed by the Pub. Sts. c. 119, § 139, against loss by fire, upon chattels, while contained in a certain house “ occupied the year around.” A loss occurred in May, and during the previous October, and for a few days before and after, the house was unoccupied. The judge instructed the jury that the plaintiff must satisfy them that the building containing the property answered the description in the policy at the time when the contract was made and at the time of the fire, and the attention of the jury was called to the nature of the occupancy as a circumstance to be considered in determining whether the house could be called a building “ occupied all the year around.” Held, that the instructions were sufficiently favorable to the defendant, and that the action could be maintained.</p> <p>Under the Pub. Sts. c. 119, §§ 138,139,181, a misrepresentation made in obtaining a policy of fire insurance is to be deemed material, if the matter misrepresented increases the risk of loss, although not made with intent to deceive.</p>

<p>Complaint on the Pub. Sts. c. 98, § 2, alleging that the defendant, at Boston, on March 13,1887, that day being the Lord’s day, kept open his shop “ for the purpose of doing business therein, the same not being then and there works of necessity or charity.”</p> <p>Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The defendant testified that on Sunday, March 13, 1887, between the hours of eight and nine o’clock in the forenoon, he kept open a shop, situated on Cambridge Street in Boston, and of which he was the proprietor, for the purpose of selling therein, on said day, bread, pastry, and milk; that he also had in said shop certain groceries and fancy articles which he sold on other days, but not on Sunday, and that he did not keep his shop open for the purpose of selling these last-mentioned articles on said Sunday; that he did not make, or cause to be made, the bread and pastry which he was thus selling and intending to sell, but bought the same from time to time of other persons, for the purpose of reselling, as- he did also the milk sold by him; and that milk was usually sold by bakers of Boston to their customers.</p> <p>The defendant further testified that he had a small stove in the rear part of his shop in which his wife sometimes baked a few cookies or ginger-snaps, which he placed in his show-cases and sold with the bread and pastry.</p> <p>The government offered no evidence tending to control the defendant’s testimony.</p> <p>The defendant requested the judge to submit to the jury the question, whether, upon the foregoing testimony, the defendant was a “baker,” within the St. of 1886, c. 82, but the judge declined so to do, and instructed the jury that, if they believed the testimony of the defendant to be true, they might return a verdict of guilty.</p> <p>The jury returned a verdict of guilty; and the defendanf alleged exceptions.</p>

<p>Tort. Writ dated December 8, 1886. The declaration alleged that the plaintiff owned two tracts of land in Orange, the first bounded south by land of the defendant, and north by the highway leading from said Orange to Erving, and the second bounded south by Miller’s River, and north by land of the defendant; that the south side of the first described tract of land and the north side of the second are bounded by the defendant’s land, on which are the roadbed and track of the defendant’s railroad ; that there was a way leading from the first described tract of land over the land of the defendant to the plaintiff’s second lot of land, which the plaintiff had a right to use as a footway and a carriageway; that the defendant erected a fence across said way, filled it with, and placed upon the same, stones, earth, gravel, ties, and iron rails, so that the plaintiff could not use the same as a carriageway, and only with great difficulty as a foot-way, and by reason of obstructing his right of way as aforesaid the market value of the plaintiff’s second tract of land had been greatly decreased, and the plaintiff had been put to great expense, inconvenience, and damage in cultivating said land and harvesting the crops grown thereon. The answer contained a general denial, and alleged that all the acts committed by the defendant were upon the soil and freehold of the defendant, and upon its roadbed and track, and were such as its charter and the rights obtained thereunder permitted it to do.</p> <p>The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, on agreed facts, in substance as follows:</p> <p>On January 12,1849, the tracts of land described in the plaintiff’s declaration, and the tract of land between the same, owned by the defendant, over which said right of way is claimed, were owned by one Rodney Hunt of Orange, and formed one continuous tract of land. On said January 12, 1849, said Hunt, by warranty deed, conveyed in fee to the Vermont and Massachusetts Railroad Company the tract of land now lying between the plaintiff’s two tracts of land, over which said right of way is claimed. This deed described the land by metes and bounds, and following the description were these words: “ The above consideration includes all damage done to my adjoining land in the construction of said railroad by said corporation.”</p> <p>The defendant is now rightfully in possession of said land, through conveyance from the Vermont and Massachusetts Railroad Company, and the same has been occupied and used as a railroad continuously since 1849. On July 31,1874, the plaintiff became possessed of the two tracts of land described in his declaration by a deed of warranty from one Patrick H. McCushing, the said McCushing holding title under one Howe, to whom said Hunt had granted said tracts, the possession of the said Hunt, Howe, McCushing, and the plaintiff being continuous and without interruption. All of the defendant’s acts declared on occurred between July 1, 1880, and July 1, 1885, and were done upon its said described tract of land in the construction and maintenance of its railroad, which it was authorized by law to construct and maintain.</p> <p>The second described tract of land is bounded continuously on the north by land of the defendant, as set forth in the declaration, and on the south is bounded continuously by Miller’s River, so called, a stream of water varying in width from one hundred to one hundred and fifty feet, and there is no approach to said tract either from the east or west, excepting over the land and track of the defendant. There is no bridge or other means of getting over said river, and the only access had by the plaintiff to and from said described tract of land is over the land of the defendant. The plaintiff does not own any land south of said river, which is separated from the nearest public highway, south, by a tract of land about half a mile wide, mostly covered with an unbroken forest. The plaintiff and his grantors have used said right of way openly, adversely, and uninterruptedly for more than twenty years prior to the acts of the defendant declared on.</p>

<p>If a farmer, not a dealer in provisions, kills a hog and sells it, knowing that the purchaser intends to eat it, there is no implied warranty on the seller’s part that the hog is fit for food.</p>

<p>If an assignee in insolvency sells, by leave of the Court of Insolvency, the estate of the insolvent, and, acting through a third person, becomes the purchaser, and manages the estate for his own benefit and for the benefit of other persons, this court will not entertain a bill in equity, brought by a creditor of the estate against the assignee, under the Pub. Sts. c. 157, § 15, to revise an order of the Court of Insolvency dismissing a petition of the creditor seeking to compel the assignee to account for the profits made by him after the sale, unless the persons interested with the assignee in the purchase are made parties.</p> <p>If a creditor of an insolvent estate proves a valid claim against it, the fact that he subsequently participates with the assignee of the estate in a transaction prejudicial to the rights of the creditors affords no ground for expunging his claim, under the Pub. Sts. c. 157, § 35.</p>

<p>Under the Gen. Sts. c. 63, § 45, providing that, after a railroad “corporation has by virtue of its charter taken land or other property for the purpose of its road, it shall, before proceeding to construct the road, furnish a plan of the land to the owner,” and that, if such plan is not so furnished, all the rights of the corporation to enter upon or use such land, except for making surveys, shall be suspended until it has delivered a plan, the failure to deliver a plan of land taken does not invalidate the taking; and a person whose land has been taken cannot, after the road has been completed and has been in use for nearly twenty years, object to such use on the ground that no plan has been furnished him.</p> <p>Although the power to take land by the right of eminent domain which has been granted by the Legislature to a domestic railroad corporation will not pass to a foreign corporation, which by deed succeeds to the rights and powers of the domestic corporation, without the assent of the Legislature, such assent may be gathered by implication from a series of acts of the Legislature.</p>

<p>On a petition, under the Pub. Sts. c. 49, §§ 79, 105, for the assessment of damages caused by taking land for a town way, and damages to the petitioner’s house caused by the taking, there was evidence that the petitioner could not read, and that the road commissioners of the town knew of his inability; that before filing his petition lie had accepted an award of §200 for damages, and had put his mark to a receipt acknowledging full payment of all claims, but which he understood at the time, and declared, to be for the land alone; that the road commissioners expressed no dissent, but said that “that would be all right; ” that the petitioner, on learning what he had signed, repudiated the transaction, tendered the money back to them, giving them a notice addressed to the town, and left the money and the notice in the hands of the town treasurer. Held, that the receipt was not a bar.</p> <p>If a town authorizes its road commissioners to pay a certain sum in full for all damages sustained by an owner of land caused by the taking of his land for a town way, and the commissioners pay the money and take a receipt under such circumstances that their act amounts to constructive fraud, the town cannot, on a petition for the assessment of damages for the taking, set up the receipt as a bar to the petition.</p>

<p>If a dealer in intoxicating liquors, having a license authorizing him to sell such liquors only at his shop, sends a wagon containing liquors to his regular customers, and authorizes the driver to let such customers have what they want from time to time, a delivery of liquor at the shop of a customer by the driver, in pursuance of an order then and there given, is an illegal sale; and the dealer cannot maintain an action to recover the price of "the liquors delivered, although he had previously, at his own shop, made an agreement with the customer to supply him in this manner with such liquors as he should from time to time require.</p>

<p>Machinery upon which a servant was employed became defective and dangerous. The master promised the servant that the defect should be remedied. The servant continued to attend to the machinery, knowing that the defect had not been remedied, and sustained an injury by reason of the defect. Held, in an action by him against the master for the injury, that the plaintiff was not entitled to a ruling that, on these facts, the defendant was liable.</p>

<p>A case pending in court was sent to an auditor. The parties and a third person appeared before the auditor and filed with him an agreement appointing him referee, and submitting to him all matters in dispute between the three, growing out of a certain matter referred to in the declaration. The agreement was headed with the name of the case and the court in which it was pending. The submission was stated to be “ in the above entitled action,” the referee was to report to the court, and final judgment was to be entered in the action upon the coming in of the referee’s report. No rule of reference was issued by the court. Held, that the agreement was not one in pais, and did not work a discontinuance of the action. Held, also, that, as the defendant was not indebted to the plaintiff and to the third person jointly, no rule of reference could have been issued in the action; and that the referee’s award could not be accepted.</p>

Tort, for personal injuries sustained by the plaintiff, a minor, by falling on a sidewalk on Winter Street in the city of Salem. = Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows: The plaintiff testified as follows: “ About nine o’clock on Monday morning, December 21,. 1885, I was walking on the sidewalk in front of the dwelling-house occupied by George It. Jewett, No. 24 Winter Street in Salem.

<p>The charter of a corporation authorized it to convey water by subterraneous pipes to a certain town. A subsequent act authorized it to conduct by subterranean pipes into their own land the waters of certain ponds, for the purposes for which tlie original charter was granted, and, for said purposes, to “ construct, lay down, and maintain any dam or dams, pipes, fountains, or reservoirs, whatsoever, upon and over any land whatsoever.” The statute also provided a remedy for any person injured “ by the taking the water aforesaid.” Held, that the corporation had no power to take the land of a third person and build a dam upon it.</p>

<p>Contract, upon an instrument under seal, dated May 23, 1885, by the terms of which the defendants, six in number, agreed to pay to the plaintiff, on demand, six sevenths of any loss to which he might be subjected as the indorser of a certain note for a corporation.</p> <p>Aaron H. Saltmarsh alone defended. He filed an answer alleging that' the plaintiff, since the execution of the contract declared on, had executed and delivered the following paper, under seal, to one of the joint obligors under the contract:</p> <p>“ Received of L. V. Spaulding §1060.84, in full satisfaction for his liability on the document” signed, &c., and dated May 23, 1885.</p> <p>At the trial in the Superior Court, before Hammond, J., it appeared that on September 20, 1886, the defendants, except Saltmarsh, settled with the plaintiff for their proportionate part of the amount alleged to be due under the agreement declared on, and the plaintiff executed the paper under seal, annexed to the answer, and delivered it to the defendant Spaulding. The plaintiff offered to prove facts showing that, in giving said sealed paper annexed to the answer, there was no intention of releasing the defendant Saltmarsh. The judge ruled that said offer was not material, and that said sealed paper released the defendant Saltmarsh, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Under the St. of 1875, c. 209, a town treasurer has no right, virtute officii, to give a new note of the town in renewal of an old note; and the town is not bound by his assurances as to his authority, or by any custom or usage on his part to act without authority.</p> <p>If the holder of a valid promissory note, signed in behalf of the town by its treasurer, surrenders it to the treasurer and takes from him a new note in renewal, on his assurance that he has authority to hind the town by the renewal, when, in fact, he has not such authority, the treasurer’s conduct is not a fraudulent concealment by the town of the cause of action, within the Pub. Sts. c. 197, § 14, and an action cannot be maintained on the old note, which is not brought within six years after the cause of action upon it accrued.</p>

Tort, in three counts. The first count was for breaking and entering the plaintiff’s close in Attleborough, known as the Falls Pond, and… Held: and now has and holds, and has so had and held since said first day of January, 1887, till the present time, the sole and exclusive right to cut and carry from the Falls Pond — the close described in the first count — all the ice formed or forming on said pond; and the defendants, in violation of the plaintiff’s said rights, entered…

<p>A. made a promissory note, dated May 25,1878, and payable to B. one year from date. A. died on March 81, 1884, and an administrator was appointed and gave bond on April 7, 1884. Said administrator resigned, and an administrator de bonis non was appointed on April 6,1885. Held, in an action on the note against the administrator de bonis non, brought .on April 5, 1887, that the action was brought within the time allowed by the Pub. Sts. c. 186, § 17, and was not barred by the statute of limitations.</p>

<p>Appeal from a decree of the Probate Court, allowing a petition filed by Job T. Wilson, praying for the removal of James H, Wilson, one of the trustees under the will of Deborah Wilson. The case was heard by Holmes, J., and reserved for the consideration of the full court. The facts appear in the opinion-</p>

<p>An action of tort to recover the forfeiture prescribed in the Pub. Sts. c. 179, § 6, cannot be maintained where a tenant in common commits waste in good faith, under an honest belief that he is not a tenant in common.</p>

<p>Contract, against Arthur D. Story and Eli Wilson, on an account annexed, for the price of a mackerel seine, sold in 1885, and for work done on the same in that year and in May, 1886. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows :</p> <p>The seine was purchased, at Gloucester, of the plaintiff, by the defendant Wilson, for the use of the fishing schooner A. M. Burnham, of the burden of one hundred and fifteen tons, of said Gloucester, Wilson being the master of the vessel, and also being the owner of one half of it. The defendant Story owned the other half. The repairs on the seine were also ordered by Wilson.</p> <p>Story alone defended, and contended that, if he was liable at all, he was, under the U. S. St. of June 26, 1884, o. 121, § 18,* only liable for one half of the bill; and requested the judge so to instruct the jury.</p> <p>The judge declined so to instruct the jury, but instructed them that, if Story authorized the purchase of the seine, or afterwards ratified such purchase, he was liable for the full amount of the plaintiff’s bill.</p> <p>The jury returned a verdict against Story for the full amount of the bill; and he alleged exceptions.</p>

Contract to recover a balance of salary alleged to be due the plaintiff for services rendered, as steward and engineer, at the jail and house of correction at Lawrence, in the county of Essex. Trial in the Superior Court, without a jury, before Hammond, J., who allowed a bill of exceptions, in substance as follows: In 1879, the county commissioners fixed the salary of the then steward and engineer at the rate of $775 per annum.

<p>Tort. Writ dated March 8, 1886. The declaration contained two counts. The first count was for the conversion of one horse, one buggy, one wagon, one sleigh, and eleven pieces of furniture. The second count alleged that, on June 10, 1878, the defendant executed the following agreement: “ I, Frederic A. Silloway, in consideration of the receipt of two hundred and twenty-four dollars on my note of this date, payable to Edward P. Shaw, or to his order, in four months from date, I herewith consign for sale to Edward P. Shaw the following merchandise, and as security for the payment of said note and all contracts due from me payable to the order of said E. P. Shaw, and the proceeds of all sales of merchandise herewith consigned, and to satisfy full payment of all contracts said Shaw may hold against me, payable to his order. Consignment.” Then followed a list of the chattels set forth in the first count, and these words: “All stored in house and barn, 14,Fruit St., which I will deliver on demand of said E. P. Shaw. F. A. Silloway.”</p> <p>The second count further alleged that this agreement was given as security for the payment of a promissory note of even date with said agreement, and as security for the payment of all contracts due and payable from the defendant to the plaintiff ; that these contracts were two promissory notes, signed by the defendant and payable to the plaintiff, each being dated October 12, 1878, for the sum of $89, payable four months after date; that the defendant owed the plaintiff a certain sum on these two notes; that the defendant had refused to deliver to the plaintiff the chattels set forth in said agreement, though requested so to do; and that he had within six years converted the same to his own use, and deprived the plaintiff of his security.</p> <p>Trial in the Superior Court, without a jury, before Hammond, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff’s evidence tended to show the following facts: On June 10, 1878, the defendant made and delivered to the plaintiff a promissory note, payable in four months to the plaintiff or his order, for $224, and executed and delivered to the plaintiff, at the same time, the instrument declared on. The chattels enumerated in said instrument were then in the defendant’s possession, and continued in his possession up to the time of the trial. When the note of June 10, 1878, became due, the plaintiff paid a part of it, and gave for the balance the two notes, dated October 12, 1878, described in the declaration.</p> <p>The defendant proved that the plaintiff brought an action against him in the Superior Court, wherein he declared upon said notes of October 12. The answer in said action was a general denial, and the statute of limitations. After hearing, a verdict and a judgment for the defendant were rendered. Neither party introduced any evidence showing upon what ground this verdict was rendered.</p> <p>The plaintiff testified that in October, 1886, he made a demand upon the defendant for the goods enumerated in the instrument of June 10, 1878. This testimony was not contradicted or controlled. The plaintiff also testified that the said new notes had never been paid.</p> <p>The defendant asked the judge to instruct the jury as follows: “ 1. There is no evidence of a conversion, and for that reason there must be a finding for the defendant on the first count. 2. The action cannot be maintained, on the evidence, on either count. 3. The statute of limitations is a bar to this action. 4. The evidence and the writ showing that no demand was made for the goods described in the writing dated July 10,1878, until after more than six years from its date, and that no action was brought until after six years from its date, this action is barred. 5. The writing of July 10, 1878, does not secure the payment of the two notes of October 12, 1878.”</p> <p>The judge declined to give the rulings requested, except the first; and ruled that the action could be maintained. He also found, as a fact, that the demand in October, 1886, was within a reasonable time, and ruled that the statute of limitations was not a bar to the action. He accordingly found for the defendant on the first count, and for the plaintiff on the second count; and assessed damages in the sum of |158. The defendant alleged exceptions.</p>

<p>The St. of 1883, c. 163, incorporated a water company, for the purpose of furnishing the town of M., or any other town or city, with water. Power was given to take the water of a certain brook in M., to purchase other water sources, to take and hold lands for the purpose of conveying water into M., or other town or city, to lay down pipes over any lands, and to enter upon public or private ways under the direction of the authorities of the city or town where such ways are situated. The company was required, when land was taken, to record a description in the registry of deeds of the county in which the lands should be situated. Power was also given to make contracts with M., or with any other town or city, to supply water. It was also provided that the county commissioners for the county in which land taken was situated should require security for damages. The town of M. was given the right to purchase the franchise, and to tax the inhabitants therefor. Held, that the company had the right, under the statute, to acquire water rights outside of M. without acquiring any therein, and, for the purpose of conveying water to another town, to take land, although it conveyed no water to M.</p> <p>The St. of 1883, c. 163, incorporating a water company, and giving it power to take lands, requires, in § 18, the county commissioners, upon the application of the owner of any land taken, to estimate the damages and require the corporation to give satisfactory security for the payment of all damages and costs which may be awarded such owner; and provides that the right of the corporation to enter upon or use such lands, except for making surveys, shall be suspended until it gives the security so required. Held, that the statute made adequate provision for compensation.</p> <p>If a statute giving the right to a water company to take land by the right of eminent domain requires it to file a description of the land taken, “sufficiently accurate for identification," and land is taken in two towns, a description which states the land to be in one town, which does not state the width of the land taken, and which is vague as to the termini, is insufficient.</p> <p>If a statute giving the right to a water company to take land by the right of eminent domain requires it to file a description of the land taken, “ sufficiently accurate for identification,” it is no objection to a description that it does not state the name of the owner of the land taken.</p> <p>A water company, authorized to take land by the right of eminent domain on filing a description “ sufficiently accurate for identification,” filed a description and entered upon the land. The owner brought a bill in equity for an injunction against the company, and the company, after it had filed an answer in the case, filed a new description, and set this up in a supplemental answer. The first description was held to be insufficient, and the second to be sufficient. Held, that no injunction could issue, but that the bill might be retained for the assessment of damages in respect to the entry before the lawful taking.</p>

<p>If the defendant in a suit in equity files a demurrer to the bill, and also an answer, the court may, under Rule 22 in Chancery, allow the answer to he withdrawn, and may hear the case on the bill and demurrer; and it is not necessary that the demurrer should be again filed.</p> <p>If a lease of land contains a provision that, “ if the premises are for sale at any time, the lessee shall have the refusal of them,” and the lessor conveys them to a third person, the lessee cannot maintain a bill in equity, against the lessor and the purchaser, for specific performance of the provision.</p>

<p>A man left his wife and family in August, 1871, to seek work. His wife heard from him only twice after he left, the last time being about three weeks after so leaving, and she never heard of him again, though she made inquiries. At the time he left, his health was “ fair,” although he was then “ drinking hard,” and had been for some years. Held, that these facts were sufficient to raise a presumption of fact that he died before June 21,1881.</p> <p>Under the Gen. Sts. c. 92, § 28, (Pub. Sts. c. 127, § 23,) if a bequest is made to one of a class, who is a relation of the testator, and the legatee dies before the testator, leaving issue surviving the testator, such issue are entitled to the legacy.</p> <p>If, under the St. of 1885, c. 376, the judge of probate directs the amount of a legacy to be deposited in a savings bank, on the representation of the executors that tlie residence of the legatee is unknown, and it afterwards appears that the legatee died before the testator, and that his issue are entitled to it, under the Pub. Sts. c. 127, § 23, the judge of probate should order the amount to be paid to such issue.</p>

<p>If a sole devisee of a farm is appointed one of the executors of the will of his devisor, the executors, with the assent of the devisee, may occupy the farm for the benefit of the estate, and, while it is so occupied, the products of the farm cannot be taken on attachment as the property of the devisee.</p>

Tort for the conversion of certain personal property. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows: Evidence was introduced tending to show that the town of Milford, one of the defendants, contracted with the firm of Mead, Mason, and Company for the construction of a granite stone building for a Memorial Hall in Milford; that Mead, Mason, and Company sublet the stone-work to the plaintiff; that the defendant Swasey…

Contract, on an account annexed, to recover for work done and material furnished in the erection of a Memorial Hall in the town of Milford. At the trial in the Superior Court, Bacon, J., directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

<p>In an action by one town against another town for relief furnished a pauper, evidence is inadmissible, on the issue whether the pauper had his domicil in the defendant town, that, at a previous time, the overseers of the poor of the defendant town, on being notified by a third town that the pauper was in need of relief, took the pauper to their town and furnished such relief. And the fact that the records of the defendant town have been destroyed by fire does not make the evidence admissible.</p>

Petition to the Superior Court for leave to enter an appeal, alleging the following facts: On October 7, 1886, Thomas B. Field, Esquire, a trial justice for the county of Nantucket, in an action of contract brought against the petitioner by the respondent, rendered judgment against the petitioner for the sum of $17.20, damages, and $8.40, costs of suit.

<p>Petition to the Superior Court for a jury to assess damages for the taking of land, by the respondent, to lay out a highway in the town of Berkley. Hearing in the Superior Court, before Barker, J., who ruled that the way was not legally laid out, directed a verdict for the respondent, and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>In an action for personal injuries sustained by the plaintiff, by reason of the carriage in which lie was driving being struck by a car on the defendant’s railroad at a place where it crossed a way at grade, there was evidence that the car, which was slowly descending an incline by the force of gravity, was in charge of a brakeman, and could have been stopped in a short distance if the brake had been applied. There was also evidence that the plaintiff was driving at a moderate trot; that, as he approached the crossing, his head was turned towards the side from which the car was approaching; that the hind wheel of the carriage alone was struck; that as the carriage approached the crossing it was visible from the car; and that cars did not ordinarily run at that time. The plaintiff was so injured that he was unable to give any account of the occurrence. Held, that there was evidence proper to be submitted to the jury on the questions whether the plaintiff was in the exercise of due care, and whether the defendant was negligent.</p>

Tort, for personal injuries occasioned to the plaintiff by a defect in a way in Beverly, which the defendants were bound to keep in repair. Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions, in substance as follows; The plaintiff's counsel, in opening his case to the jury, offered to prove the following facts. There is in the defendant town a public highway called Elliot Street, on which the plaintiff lives.

<p>Writ of entry, to recover a parcel of land in Newburyport, brought against John Carr and Elizabeth H. Carr, his wife. John Carr filed a plea of disclaimer, and died after the action was brought and before the trial, and his heirs came in under the same plea. Elizabeth H. Carr filed a plea of nul disseisin. Trial in the Superior Court before Hammond, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The demandant claimed title by virtue of a deed made to him, as purchaser at a sale duly made on a levy of an execution by a deputy sheriff, which execution was duly issued, after trial and judgment for the plaintiffs, in an action brought by Gustavus F. Swift and another, copartners under the firm name of Swift Brothers and Compan}7, against said John Carr and Edward F. Coffin, as copartners under the firm name of Carr, Brown, and Company.</p> <p>Said lot of land was attached on mesne process, in the above-named action, on April 5, 1884, and the execution was levied in due time and form, so that said attachment was in full force up to the time of said levy.</p> <p>The tenant, Elizabeth H. Carr, claimed title by virtue of two deeds: the first, from John Carr to his daughter, Elizabeth M. Carr; and the second from said Elizabeth M. Carr to the tenant, Elizabeth H. Carr. Both deeds were dated March 1, 1880, and were both recorded on November 21, 1884.</p> <p>The causes of action in the suit on which the attachment was made were five promissory notes, indorsed “ Carr, Brown, and Company.” These notes were delivered to Gustavus F. Swift, senior member of the plaintiff firm, in payment for horns sold by him through his agent, Tuttle Culver, residing in New York city, in pursuance of a contract entered into by the acceptance of a written proposition, and which, before maturity, became the property of said firm of Swift Brothers and Company.</p> <p>Gustavus F. Swift had for two years before, in the years 1881 and 1882, through his agent, Tuttle Culver, sold horns to Carr and Coffin, under the firm name of Carr, Brown, and Company, and said Culver knew them as copartners under that firm name.</p> <p>John Carr went to Chicago in May, 1883, and received said horns, and delivered on his arrival, about May 21, in part payment for the same, two of said five notes, one for $2500, and the other for $2000.</p> <p>Culver met said Carr when he arrived in Chicago, and went with him to Gustavus F. Swift’s place of business, introduced him to said Swift, and saw him deliver said notes.</p> <p>Edward F. Coffin testified that he hired Carr to go and receive said horns, but there was no evidence that either Culver or Swift knew of such hiring. Coffin also testified that, when Culver was in Newburyport, on January 9,1883, arranging with him for a settlement of a small balance due for the previous year’s horns, he told him he was going to take the business, and that thereafter he was Carr, Brown, and Company. Coffin also testified that said firm of Carr, Brown, and Company was dissolved on February 1, 1883, and Carr retired from the firm on that date.</p> <p>Culver testified that no such conversation took place, and that he had no notice of the dissolution of the firm of Carr, Brown, and Company until after the maturity of the five notes in the fall. Culver was the general agent of G. F. Swift.</p> <p>As evidence bearing on the question of notice of dissolution of the firm of Carr, Brown, and Company, and of the withdrawal of John Carr therefrom, and to show that Swift Brothers and Company were not creditors of John Carr at the time of said attachment, in consequence of said notice, the tenant, Mrs. Carr, offered evidence that two letters, one bearing date June 18, 1883, and the other July 9, 1883, each containing one of the five notes, in part settlement for said horns, were mailed on those dates to Gustavus F. Swift, said letters having a printed letter-head as follows: “ Edward F. Coffin, under firm name of Carr, Brown, and Company, manufacturer and dealer in horn combs, tips, and waste, Newburyport, Mass.” To the admission of this evidence the demandant excepted.</p> <p>The jury returned a verdict for the tenant; and the demand-ant alleged exceptions.</p>

<p>Under the Pub. Sts. c. 44, § 46, which imposes upon the school committee of a town, unless the town otherwise directs, the duty of keeping “the school-houses in good order,” and of providing “ all things necessary for the comfort of the scholars,” the committee may lawfully order a tree on a school-house lot to be cut down; and they are not liable for the negligence of those whom they employ to execute their order.</p>

Contract, to recover the sum of $64, paid by the plaintiff, a minor. Trial in the Superior Court, without a jury, before Hammond, J., who allowed a bill of exceptions, in substance as follows: On June 1, 1886, the plaintiff, who was then nearly seventeen years old, bought a bicycle of the defendant, and paid $30 in cash on account of the same. He also signed a paper writing by which he agreed to pay further sums of money from time to time.

<p>If a natural watercourse has its source, body, and outlet in a highway, the surveyor of highways of the town in which the highway is situated may, for the purpose of repairing the highway, change the direction of the watercourse, and convey it in an open ditch along the highway; and the fact that the ditch is dug between the centre of the highway and the land on the side, does not entitle tlie owner of the land, although lie owns the fee to the centre of the highway, to maintain a bill in equity against the highway surveyor and the town to abate the nuisance and for damages; but his remedy is under the Pub. Sts. c. 52, §§ 15,16.</p>

<p>Petition, under the Pub. Sts. e. 191, against Frederick W. Litchfield, Catherine Broderick, and Margaret McNamara, to enforce a mechanic’s lien for labor performed in the erection-of a building in Chelsea.</p> <p>Trial in the Superior Court, before Pitman, J., who ruled that the petitioner was entitled to maintain his lien; and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Contract, against R. G. Fitch, A. P. Moore, and J. E. Moore, upon a promissory note for $5000, signed by the defendants, and guaranteed by D. Alden and J. W. Bradbury. On the note was indorsed a payment of $2000. The plaintiff discontinued as to all the defendants but Fitch. Trial in the Superior Court, without a jury, before Barker, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared that after the reported failure of A. P. and J, E. Moore, and the payment of the $2000 indorsed on the note, the guarantors of the note paid to the plaintiff the principal part thereof, leaving due a balance of $217.50, upon the agreement that the hank was to hold the note as security to the guarantors for the amount paid by them, as well as for the balance remaining due to itself.</p> <p>Subsequently the defendants A. P. and J. E. Moore sent to the plaintiff bank their note for said balance of $217.50, the amount that remained due at that time on the original note, which note so sent has never been discounted or paid, in whole or in part, nor accepted by the bank in discharge of the original note.</p> <p>Upon this evidence, the defendant Fitch requested the judge to rule as follows: “1. The payment made by the guarantors on the note in suit to the plaintiff bank, discharged and released the defendant Fitch from his liability on such note to the amount of said payment, and the plaintiff cannot have its action against said Fitch for such amount, notwithstanding the arrange^ ment said to be made with the guarantors. 2. The giving of the note to the plaintiff bank by the Moores, for the balance remaining due after the payment by the guarantors, extinguished the remainder of the cause of action against the defendant Fitch, and the plaintiff can recover nothing against him in this action.”</p> <p>The judge declined so to rule, but ruled that the aforesaid facts constituted no defence on the part of the defendant Fitch to this action, or any part thereof, and found for the plaintiff for the full amount of its claim, with interest thereon. The defendant alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff, a girl eight years one month and a half old, by being run over - by the defendant’s wagon, on April 17, 1885, on East Eighth Street in South Boston.

<p>In an action by an assignee of a mortgage for the conversion of two horses, against an officer, who attached one of the horses as the property of the mortgagor on a writ in favor of one creditor, and the other horse on another writ in favor of another creditor, the demand made by the plaintiff, under the Pub, Sts. c. 161, § 75, stated that he held a mortgage for 8492, then due, upon the two horses, and referred to the records of a town for further particulars, without stating when the mortgage was given, or by whom, or to whom. The mortgage purported to secure payment of a note for $650, and interest, but did not show when the note would become due, or the rate of interest. The note was payable six months after date, with interest at the rate of three per cent a month. The mortgage and note were made to a third person, and were assigned tó the plaintiff a short time before the attachment. By an arrangement between the plaintiff and the mortgagor, a part of the mortgaged property was sold, and the proceeds applied to the payment of $25 to the plaintiff as a commission, the interest for six months in advance, and $168 upon the principal. Held, that the demand was insufficient. 0</p>

<p>Libel bob divorce, filed April 15,1887, charging the libellee with committing adultery with Charles R. Percival, on June 15, 1886, at Boston, on June 25, 26, 27, 1886, at Revere, on June 26,1886, at Boston, and on September 21,1886, at Revere. The case was heard before jField, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The libellant offered evidence that sexual intercourse was had by the libellee with said Percival, at a hotel in Boston, in the forenoon -of the day of the marriage, and before the marriage, which was on June 15,1886, and also offered evidence of certain familiarities with Percival, consisting of visits by the libellee to the room of Percival in said hotel, within a short time preceding said marriage. To this evidence the libellee objected, and the judge admitted the same solely on the ground that it tended to prove sexual intimacy with the same person who was charged in the libel with acts of adultery with the libellee, after marriage, to support which other evidence was offered and received without objection.</p> <p>The judge found, as a fact, that the libellee was guilty of adultery with Percival, after marriage. The libellee alleged exceptions to the admission of this testimony.</p>

<p>An allegation in an indictment that the defendant “ wilfully did throw a certain missile, to wit, a stone,” at a street-railway car, is not sustained by proof that he threw only a billet of wood.</p>

Bill in equity by the executor of the will of Josiah D. Ashley, alleging that said Ashley died on January 20, 1871, leaving a will, which contained the following clauses: “ To my beloved wife, Mariah Ashley, I give and bequeath all my household furniture and wearing apparel. “ I further give and bequeath to my beloved wife, Mariah, the sum of seven hundred dollars. “To my beloved wife, Mariah, I further give and bequeath the use of all the rest and residue of my estate…

<p>Contract, upon a policy of insurance in the form prescribed by the Pub. Sts. e. 119, § 139, against loss by fire upon stock in trade and furniture in a building in Hardwick. The case was referred to a referee, who made an award in favor of the plaintiff, which award was returned to and accepted by the Superior Court, and judgment entered thereon. The defendant appealed to this court. The facts appear in the opinion.</p>

<p>Under the St. of 1887, c. 437, persons who served in the army or navy of the United States in the time of the war of the Rebellion, and were honorably discharged therefrom, cannot he preferred for appointment to office or employment in the service of the Commonwealth or the cities thereof, without having made application for appointment to office or employment to the civil service commissioners, as required by the St. of 1884, c. '320, and the rules of the civil service commissioners made thereunder.</p>