Volume 146 — Massachusetts Reports

Two actions oe tort. The first case was for the conversion of certain articles of personal property, and the second case was for the conversion of a sum of money. The defendant, a deputy sheriff, justified in each case, by virtue of an attachment of the articles as the property of Rozel P. Pickert and Hattie E. Pickert.

Complaint, under the Pub. Sts. c. 91, § 27, alleging that the defendant, on December 23, 1885, at North Andover, “in a certain pond called the Great Pond, otherwise known as Lake Cochickewick, said pond being a body of water of more than twenty acres in area, and being wholly situated in said North Andover, the whole of said pond being then and there a place where useful fishes were then and there lawfully artificially cultivated and maintained, unlawfully did fish without…

<p>Contract. Writ dated December 27, 1884. The declaration contained three counts. The first count was to recover the sum of $3167.17, as a balance found due the plaintiff on an accounting together. The second count was on an account annexed to recover the sum of $1316.31. The third count was as follows: “ And the plaintiff says that it was agreed by and between the plaintiff and defendant, that, in consideration that the plaintiff and his son should work up certain stock of the defendant, which had been owned and used by the firm of A. H. Herring and Son, in the business of manufacturing shoes, the plaintiff should have as his property whatever remained of said stock after paying from the same a certain note for the amount of $2770.94, which the defendant held for the benefit of the creditors of said A. H. Herring and Son, and a certain claim amounting to $1840.55, which the firm of A. W. Downing and Company (of which the defendant was a member) held against said A. H. Herring and Son. And the plaintiff says, that, in pursuance of said agreement, said stock was worked up by the plaintiff and his son, and said note and claim was paid therefrom, and there remained of said stock, after said payments, property of the value of $1816.31, which the defendant retained and refused to -deliver to the plaintiff, and deprived the plaintiff of.”</p> <p>Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows :</p> <p>The plaintiff introduced evidence tending to show the following facts: The firm of A. H. Herring and Son, which consisted</p> <p>of the plaintiff and his son Edwin A., failed in March, 1883. Their business was that of manufacturing boots and shoes, in Haverhill. Their liabilities at the- time of their failure amounted to about $8000, and their assets, which consisted of stock in the various stages of manufacture, manufactured goods, and leather, machinery, and accounts, were worth to them, to use in their business, about $7000, but to sell at forced sale were of much less value. Among the creditors was the firm of Amos W. Downing and Company, leather dealers, who held a claim against them of about $1850. The defendant and his brother, Amos W. Downing, were members of this firm. A. H. Herring furnished the entire capital stock of A. H. Herring and Son, but it did not exceed in amount the sum of $500. He was on friendly terms with Amos W. Downing and Company, and was an old friend of Amos W. Downing.</p> <p>Upon the failure of A. H. Herring and Son, a meeting of their creditors was called. The creditors present were disposed to deal easily with the debtors, and voted unanimously to settle for forty cents on a dollar. An attempt to settle on that basis proved unsuccessful, owing to the refusal of two or three creditors (one of whom resided out of the State) to accept it, and the plaintiff and his son continued, without interruption, to work the business along until June 11, 1883. At that date the amount of their liabilities and the value of their assets remained substantially the same as at the time of their failure; but, having no credit, and little money, they were unable to continue, and were liable at any time to suit and attachment.</p> <p>On June 11, 1883, A. H. Herring and Son signed and delivered to the defendant a receipted bill of parcels of all the assets of A. II. Herring and Son, for the expressed amount of $2770.94, and the defendant on the same day signed a promissory note of that date for the sum of $2770.94, payable to the order of A. H. Herring and Son, in six months from date, without interest.</p> <p>Both parties admitted that $2770.94 was all that the goods were fairly worth to sell; but there was testimony in the case, which, as before stated, tended to show that said goods were of much greater value to the plaintiff, to be used by him in business in connection with his customers.</p> <p>The note and bill of sale were both taken by the defendant, and retained in his possession, and the testimony of both parties tended to show that the note was retained by the defendant, as the property of A. H. Herring and Son, for the benefit of their creditors.</p> <p>The sum of $2770.94 was supposed by the parties to be forty per cent of A. H. Herring and Son’s indebtedness. The plaintiff and his son, Edwin A., differed in their testimony of the conversation with the defendant at the time the bill of parcels and note were given, but it was upon this conversation and the other evidence in the case that the plaintiff based his right of action, admitting, as' he did, that, if he was entitled to recover on one count, he could not recover on the other.</p> <p>The plaintiff testified that the note and the bill of parcels were signed on or about June 11, and that, at that time, this conversation took place: “ I. told Downing that we would give him a bill of sale for forty per cent, the sum that the creditors voted to take, or were willing to take, and he to give a note for that amount. He said he would take the bill of sale, and give his note for that amount, and their said that we might go on as before, and continue to manufacture, and raise the amount of the indebtedness, the forty per cent, and that, if there should be anything over after paj'ing that, it should be mine.”</p> <p>Edwin A. Herring, who was present at the interview testified to by his father, gave the following testimony : “ On June 11, 1883, we took to Downing this bill of sale of the entire stock and business, amounting to some $2700 or $2800. Prior to that time, we wished to sell the property for the amount that the majority of the creditors, all the creditors that attended the meeting, had agreed to take, for the purpose of preserving that for them. We therefore went to Charles Downing, and asked if he would not buy it for that amount. He said he wished us to bring over a statement of the amount of property that was there, with its value, what it was fairly worth in the business. We did so. We made out an itemized account; we went through the stock at the time we made this second schedule for Downing, and made an estimate of what it was worth to the business. We took the schedule to him. He had the schedule before him on his desk when we had the interview, and was glancing over the items of it, and asked some questions for information about the schedule and about the values. I know one thing he said, referring to the items of tools and implements which were set down, I think, at, about S1100, and said, ‘ I shall not want them. You may have them.’ There may have been some remarks made about the schedule, and then he said, ‘ Why, there is enough here to pay off the note to the creditors and pay our claim in full, and then leave you four or five hundred dollars.’ I said, ‘ Yes, and more.’ He said, ‘ I will take it.’ I do not know whether it was at that interview or not, but in connection with it he said to father, ‘ Now I want you to go to work and work this out. I shall expect you to get me the note, and want you to go right on and work out this amount to the best of your ability.’ ”</p> <p>The plaintiff and his son further testified that, at the interview of June 11, nothing was said about wages, and that some few days after, upon inquiry of the defendant as to what they should do about their living expenses, were told by him to draw them out of the business.</p> <p>The plaintiff testified that frequently thereafter the defendant told him that all there was in the business after paying the note belonged to the plaintiff, and that the defendant had no interest except to help him.</p> <p>• It further appeared in evidence, that the plaintiff continued the business from June 11, under the name of A. H. Herring, agent, in that name buying and selling goods, collecting and paying out money, and depositing money in- the bank and drawing the same out. .</p> <p>The defendant, however, had given his credit to the business ; and purchases, though made in the name of A. H. Herring, agent, were made on the defendant’s credit. These purchases, however, were largely from Amos W. Downing and Company. Between June 11, 1883, and January 1, 1884, the plaintiff drew out of the business, for his living expenses, at irregular times, and in irregular amounts, $377.</p> <p>The defendant testified that, after a conference with his brother, Amos W. Downing, he agreed to buy the assets of A. H. Herring and Son, for a sum equal to forty per cent of their indebtedness; that the plaintiff said that he would work for just simply a living out of it; that he asked the plaintiff, “ How much will that living cost you ? ” and the plaintiff said that he could live for nine dollars a week, and would.</p> <p>On September 13, 1883, A. H. Herring and Son filed their petition in insolvency, and were duly adjudicated insolvent debtors on October 16, 1883. At the first meeting of their creditors, Amos W. Downing was appointed assignee of their joint and separate estates. On May 6, 1884, they received their certificates of discharge. Upon the election of the assignee, the note was delivered to him.</p> <p>The plaintiff never called the attention of his assignee to the claim made in this action, did not insert it in his schedule of assets, and never conversed about the subject with the assignee. At the time of the sale of the stock to the defendant, the creditors knew and approved of the transaction, but there was no evidence that they knew of the alleged contract whieh was the foundation of this action. Amos W. Downing lived in Haverhill, was a witness at the hearing of this case before an auditor, and was present at the trial in the Superior Court.</p> <p>The plaintiff also testified that, shortly before January 1,1884, the defendant proposed to the plaintiff that one Cram, who was related to the defendant’s wife, should put some money into the business, and have an interest therein; that the plaintiff assented to the suggestion, and thereupon, on January 1,1884, an account of stock was taken. The account of stock showed that there was sufficient in the business to pay the note for the benefit of the creditors, and leave $3740 in the business; but this account only showed $390 in money. Cram became a partner in the business, which was thereafter carried on by the plaintiff and Cram, under the name of Downing and Cram. The plaintiff testified that the defendant told him that the $8000, which was credited to the defendant as capital, belonged to the plaintiff, but that he (the plaintiff) could not appear in the business, because he had not obtained his discharge in insolvency. On the ledger of Downing and Cram, Downing was credited with $3000, and Cram was credited with $1500. The plaintiff was debited with the sums, irregular in time and amount, by him drawn out, amounting in all, between January 1, 1884, and July 22, 1884, to $477.46. Cram was debited in the same way with $385. No other personal account appeared in the ledger or books of Downing and Cram.</p> <p>The plaintiff testified that the amount of $3000, which was left in said business on January 1, 1884, was arrived at by giving the defendant, at his request, a check for $290.20, and by setting aside $450 for the plaintiff to use for personal expenses. The defendant denied that there was anything said about setting aside any money for the plaintiff’s use, nor did the defendant testify that there was at any time any arrangement as to the plaintiff’s compensation, other than that which the defendant testified to as occurring on June 11, 1883.</p> <p>Before July, 1884, the note was paid in full to the assignee, to whom it had been delivered. In July, 1884, the defendant, under circumstances which were in dispute, sold the assets to Cram, the value of the same at the time being sufficient to pay the claim of Amos W. Downing and Company in full, and leave a balance of $1316.31. This balance the defendant has retained.</p> <p>The case went to the jury on the first and third counts only. The defendant asked the judge to rule that, upon this evidence, the action could not be maintained, because the right of action had vested in the assignee.</p> <p>The judge refused so to rule, and instructed the jury that the action might be maintained with the assent of the assignee, and that it was competent for the jury to find such assent from the assignee’s knowledge of the pendency of the suit, his non-interference with it, and his attendance at the hearing before the auditor, and at the trial in the Superior Court.</p> <p>The defendant al.so asked the judge to rule that there was no evidence for the jury on the third count, and to direct them to return a verdict for the defendant on that count; and also asked for a general ruling, that, on the evidence, the action could not he maintained. The judge refused so to rule.'</p> <p>The case was submitted to the jury under instructions, which were not excepted to, except as hereinbefore stated, and they returned a verdict for the defendant on the first count, and for the plaintiff on the third count. The defendant alleged exceptions.</p>

<p>Mortgage — Sale on Execution.</p> <p>If a mortgagor by one deed mortgages two parcels of land, and subsequently conveys his equity of redemption in each.parcel to a different grantee, he so far severs his interest in the different parcels by these conveyances that it is no ground of objection that his interest in each parcel is levied upon and sold separately on an execution against him.</p>

<p>Contract, by the administrator of the estate of Marshall F. Barrett against the administrator with the will annexed of the estate of Mary F. Hart, upon the following promissory note:</p> <p>“ $600. Concord, N. H., December 10, 1867.</p> <p>“Value received, I promise to pay to Marshall F. Barrett, or his order, the sum of six hundred dollars, with interest at the rate of five per cent, payable annually. Mary F. Hart.”</p> <p>Writ dated June 19, 1886. 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 the day the note was given, Mary F. Hart was in Concord, in the State of New Hampshire, where she resided, and she continued to reside in said Concord up to the time of her decease. She owned real estate in Woburn, in this county, when the note was given, and subsequently. After the note was given, she visited in said Woburn for a few days, and her presence there was known by Barrett, the plaintiff’s intestate. She died testate on June 3,1870, and by her will gave to her two daughters, Mary D. Hart and Sarah L. Barker, a life estate in the real estate situate in Woburn, and nominated them executrixes of her will. This will was duly proved and allowéd in Merrimack county, New Hampshire, in September, 1870, but no letters testamentary or of administration were ever issued in that State. In December, 1870, a copy of the will was filed and recorded in this county as a foreign will, on petition of said executrixes, who also petitioned that letters testamentary be granted to them; but, by reason of their failure to file a bond, no letters testamentary were ever issued to them, or either of them, and the estate remained unadministered until April 14,1885, when, Mary D. Hart having died, and Sar'ah L. Barker having declined to accept the trust, the defendant was duly appointed administrator with the will annexed of the estate of Mary F. Hart by the Probate Court for this county, and gave due notice of his appointment as required by law.</p> <p>Marshall F. Barrett, who during his whole life was a resident of Woburn, died on April 5, 1883, and the plaintiff, Parker L. Converse, was appointed administrator of his estate by the Probate Court for this county on June 26, 1883; he accepted the trust, and is now administering the same.</p> <p>The affidavit of notice of his appointment was filed on June 29, 1883, and the note in suit is described in his inventory of the estate filed in the Probate Court on August 22, 1883. On August 3,1885, he for the first time demanded of the defendant payment of said note, which was refused.</p> <p>Interest on the note in suit was paid annually by themaker during her life, and, after her death, by her daughters above named, the last payment being made on December 10, 1882. These payments were indorsed on the note by a friend of the payee, acting as his agent and at his request.</p> <p>If, upon these facts, the plaintiff was entitled to recover, judgment was to be entered for him for the sum of $600, with interest at the rate of five per cent per annum from December 10, 1882; otherwise, judgment to be entered for the defendant.</p>

Replevin. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, in substance as follows: Prior to ETovember, 1884, Sumner Fickett was engaged in the retail grocery and provision business at Boston.

<p>Trustee process. Writ dated February 24, 1887. Cyrus Wakefield, summoned as trustee, answered, that, at the time of the service of said process upon him, he had in his possession certain jewelry of the defendant, namely, one pair of ear-rings and one cross, of the value in all of §600; and that he held the same as security for the payment to him by the defendant of the sum of §1886.88, which sum the defendant owed him.</p> <p>In response to interrogatories filed by the plaintiff, the trustee answered that he and the defendant were married in this Commonwealth on January 17, 1871; that they were divorced here, by proceedings begun on December 17, 1885, in which a decree nisi was entered on May 3, 1886, which was made absolute on November 10, 1886; that, while they were husband and wife, he advanced certain sums of money to her, and, at her request, paid certain of her bills; that the jewelry in question was bought by him between 1873 and 1880, and was given by him to his wife; and that in December, 1885, it was handed to him by his wife, when no one else was present. The trustee declined to state what was said to him by the defendant at that time.</p> <p>The Superior Court ordered the trustee to be charged ; and he appealed to this court.</p>

Tort for personal injuries. The third count of the declaration was as follows: “ The defendant carelessly and negligently removed the planking of a certain passageway, thereby uncovering an excavation and hole beneath, and neglected to properly guard the same, and warn and notify those' using said passageway of the removal of said plank, and the existence of said opening, excavation, and hole; and said passageway was thereby rendered unsafe to those using the same.

<p>Writ of review. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions the substance of which appears in the opinion.</p>

Indictment under the Pub. Sts. e. 101, § 9, alleging that the defendant, from June 1, 1886, to February 4, 1887, “ had- under his control a certain building, .... and did then and there, while said build-ing was so under his control, unlawfully and knowingly permit a certain tenement in said building to be used by one Edward H. Galligan of said Canton for the illegal sale and illegal keeping for sale of intoxicating liquors,” and that said Galligan kept and maintained a…

Complaint alleging that the defendant, on April 23, 1887, “ did sell to Robert Rooney one pint of milk not of good standard quality; that is to say, milk containing less than thirteen per cent of milk solids.” Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions in substance as follows: The defendant made a special contract with the wife of Rooney, by which he was to deliver to her each day one quart of the milk of one dairy, and fulfilled his…

<p>Petition to the Probate Court under the Pub. Sts. c. 147, § 33, by Catherine Kavanaugh, alleging that she was the lawful wife of Morris Kavanaugh; that her husband failed, without just cause, to furnish suitable support for her; that the petitioner, for justifiable cause, was actually living apart from her said husband ; and praying that the court would prohibit the husband from imposing any restraint on her personal liberty, and would make an order for her support. The following indorsement was upon the petition: “ I, Jas. H. Loomis, guardian of said Morris Kavanaugh, hereby waive further notice, and request that a hearing and decree be had forthwith. James H. Loomis.”</p> <p>On this petition the judge of probate made a decree that, “ due notice of said petition having been given to the said Morris Kavanaugh, and to James H. Loomis, his guardian, .... said •husband be, and hereby is, prohibited from imposing any restraint on the personal liberty of said petitioner; and that said guardian pay to her for her support, from income of estate of said Morris, the sum of three dollars per week, provided one third of the net income of the property of said ward, in the hands and control of said guardian, shall amount to as much as that sum; but if it shall amount to less than that sum, then said guardian shall pay to the petitioner such proportion of three dollars per week as one third of said net income shall amount to.”</p> <p>From this decree the respondent appealed, and filed the following reasons of appeal, as amended:</p> <p>“1. That the court had'no authority to decree a payment or payments of money by the respondent, he being at the time of the institution of these proceedings, and at the time of said decree, unable to pay said money, or to comply with said decree, by reason of being under guardianship as a spendthrift by former decree of said Probate Court.</p> <p>“ 2. That the guardian was not made a party to the proceedings.</p> <p>“ B. That the court had no authority to decree a payment of money by the respondent to the petitioner, he being by order and decree of this court unable to pay.</p> <p>“ 4. That the court had no authority to make a decree ordering the guardian to pay money as decreed.</p> <p>“ 5. That the court had no authority to order a conditional or fluctuating decree.</p> <p>“ 6. That the court did order a conditional or fluctuating and uncertain and indefinite decree.</p> <p>“7. That the court only has authority to make a definite decree in this case, if any, for a fixed time of payment.”</p> <p>It was agreed by the parties, that, when the petition was brought, the respondent was under guardianship as a spendthrift by a former decree of the Probate Court for the same county, and so continued; that the guardian, James H. Loomis, was not made a party to the proceedings; and that Loomis made the indorsement on the petition before the decree.</p> <p>Hearing before Holmes, J., who reserved the case for the consideration of the full court.</p>

<p>Public Officer — Be Facto and Be Jure — Road Commissioners.</p> <p>Road commissioners are public officers for whose acts a town is not responsible.</p> <p>A town, not having accepted the St. of 1871, c. 158, or the Pub. Sts. c. 27, §§ 7A-77, elected “ road commissioners,” who, while performing the duties of that office, committed a trespass. Held, in an action against the town therefor, that they were road commissioners de facto, the validity of whose election could not be collaterally impeached.</p>

<p>Personal Injuries — Landlord and Tenant — Roof—Snow.</p> <p>The owner of a building with a steep and unguarded roof, who lets it to a tenant, reserving only the right to enter the “premises to repair the same,” is not liable to a person injured by a fall of snow from the roof while travelling with due care upon the adjoining highway, it not appearing that the tenant might not by the use of reasonable care have prevented the accident.</p>

Bill in equity to compel the reconveyance of land on the ground that the transaction by which the defendant’s testator gained title was in substance a mortgage. Writ dated December 24,1885. In the Superior Court the case was referred to a master, who found the following facts: In 1869 the plaintiff bought the land in question, subject to a mortgage, and proceeded to erect a tenement house.

<p>Two petitions for juries to assess damages for the taking of land in Boston for a new court-house. The cases came on for trial together in the Superior Court, before Blodgett, J., who dismissed the first petition and allowed a bill of exceptions, which appear in the opinion.</p>

Contract on a bond executed by the defendant and others as sureties, and by Frank T. Fay as principal, reciting that they were “holden and stand firmly bound unto Wilbur M. Bell,” and conditioned that Fay, who had been arrested on mesne process in an action of contract in which Bell was also plaintiff, should appear before the Superior Court, abide its final judgment, and not avoid. The bond was approved by a master in chancery.

<p>Advances — Pledge — Bill of Lading — Sale — Commission.</p> <p>A banker made advances to leather merchants on hides, for which bills of parcels were given to him or bills of lading taken to his order or indorsed to him with power to take possession and sell for his security or reimbursement. He indorsed the bills of lading to the firm to get the hides from the carriers, and gave it the custody upon its express agreement to hold as his agents and to redeliver the identical hides when tanned. Held, that the banker took the title to the hides, and did not divest it by his indorsement or release of custody.</p> <p>On the failure of the firm the hanker took possession of the hides as they arrived, and sold them at private sale through reputable brokers at fair prices. Held, that the sales were valid, and tiiat the banker was entitled to a reasonable compensation.</p> <p>A trustee of the firm, holding under a voluntary assignment for the benefit of creditors, charged the banker commissions for sales of leather, and for tanning hides in the vats to prevent their loss. Held, that the former item and the latter item, above a certain limit, were rightly disallowed.</p>

<p>Bill in equity to reach and apply real estate in payment of a debt. In the Superior Court issues were framed for a jury, and Pitman, J., allowed a bill of exceptions, which, so far as material, appear in the opinion.</p>

Replevin of certain goods. Trial in the Superior Court, without a jury, before Hammond, J., who allowed a bill of exceptions in substance as follows : The plaintiff ordered the goods from wholesale druggists in Boston to be shipped to her by express C. O. D. The goods were so shipped, nailed up in two boxes, and accompanied by an itemized bill.

Two ACTIONS OF contract. The declaration in each case alleged that the defendants, who were the heirs of Levi Gage, had, by a deed dated December 28,1880, and acknowledged on December 31, 1880, conveyed an undivided half of a lot of land to the plaintiff; that each deed contained a covenant against incumbrances ; and that the owners of other lots, named Williams, Pomeroy, Flint, and Clark, had each the right “to take and carry water from and through said land to his…

<p>Keplevin of horses and other personal property. Writ dated November 6,1886. Trial in the Superior Court, without a jury, before Staples, J., who allowed a bill of exceptions in substance as follows:</p> <p>It appeared in evidence that one Thompson, on April 26,1886, mortgaged certain personal property to the plaintiff, consisting of the stock, tools, and fixtures in his meat, fish, and vegetable market, in Springfield, and the two horses, one wagon, three single harnesses, and one business sleigh, described in the writ. The mortgage, which was put in evidence, described the property named in the writ as “ used in connection with said business,” and provided that on default the mortgagee might sell the mortgaged property, and out of the proceeds “discharge any claims or liens of third persons affecting the same.” The plaintiff relied on said mortgage as entitling him to the possession of the property. It appeared that the mortgage was given to secure the payment of a promissory note, given by Thompson to the plaintiff, of even date with, the mortgage, for the sum of $325 and interest, and for other purposes, as set forth therein. The note and mortgage were dated April 26, 1886, and the mortgage was duly recorded on April 27, 1886. Thompson, from the date of said mortgage to about October 12, 1886, carried on the business of buying and selling meats, fish, and vegetables, and the horses in question were used in the delivery of goods in the business.</p> <p>The defendant was in the employ of Thompson in the market, as a salesman,- also peddling fish, and keeping books during the whole time. The horses were kept at the defendant’s barn, about one and a half miles from the market, during the whole time, and were there when the mortgage was made, although it did not appear that the plaintiff then, or afterwards, prior to Thompson’s disappearance, knew where they were kept. The defendant furnished the grain and hay eaten by the horses during the whole time, and claimed that Thompson owed him therefor the sum of about $30. It appeared that the defendant and Thompson had a settlement on May 8,1886, when the defendant was paid for keeping the horses to that date; and it is for the keeping after that date that the defendant claims a lien. Thompson absconded on or about October 12, 1886, and has never returned. Before he left, he put all the property described in the writ into the custody and care of the defendant, and directed him to notify the plaintiff of his leaving, which he did. Evi-dence was offered tending to show a detention of the horses by the defendant prior to November 6,1886, the same being detained by the defendant on the ground that he had a lien thereon for the expense incurred by him in keeping them. It did not appear that the defendant had taken any steps provided in the statutes towards the enforcement of his lien, except as herein set forth.</p> <p>The defendant asked the judge to rule, that he had a lien upon the horses for their keeping, as against the plaintiff’s mortgage, both for the time intervening between the first interview, on October 12, 1886, and the date of plaintiff’s writ, November 6, 1886, and also for the whole time he kept them for said Thompson.</p> <p>The judge declined so to rule, and found for the plaintiff as respects the horses; and the defendant alleged exceptions.</p>

<p>Contract for work done and materials furnished. Trial in the Superior Court, without a jury, before Dewey, J., who found for the plaintiff, and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Contract upon an agreement in writing, dated June 22, 1885, entered into between the plaintiffs and -the defendants, to transport the United States mails between Mashpee and Sandwich.</p> <p>At the trial in the Superior Court, before Pitman, J., without a jury, it appeared that the plaintiffs were contractors with the United States for transporting the mails between these towns, and had authority to sublet the contract.</p> <p>The agreement provided that the defendants should transport the mails from Mashpee to Sandwich and back six times a week from July 1, 1885, to June 80, 1889, inclusive, on such schedule as the Postmaster General might direct. There was a schedule annexed to the agreement, which provided for leaving Mashpee daily, except Sundays, at 5 o’clock A. M., and arriving at Sandwich at 7.30 o’clock A. M., and leaving Sandwich at 11 o’clock A. M. and arriving at Mashpee at 1.30 o’clock P. M. The defendants lived and did business at Sandwich, and the defendant Keenan testified that he could not perform the contract without pecuniary loss, unless the schedule time for carrying the mails should be changed so that he could carry the mails from Sandwich to Mashpee and return each day so as to allow him to live and do business at Sandwich. The plaintiffs produced evidence tending to show that the defendant Keenan refused to carry the mails as provided in the schedule annexed to the agreement, and that the plaintiffs, on or about July 10, 1885, sublet the contract to other parties at an advance of forty dollars a year above the price stated in the agreement with the defendants.</p> <p>The defendant Keenan offered evidence tending to show that the plaintiffs, at and before the execution of the agreement, fraudulently promised the defendants that, if they would execute the agreement, the plaintiffs would secure a change in the schedule time of carrying the mails, so that he could carry the same from Sandwich to Mashpee and return, and fraudulently represented to him that the plaintiffs could easily secure such a change in the schedule time from the Postmaster General; that the defendants, relying upon such promise and statement, signed and executed the agreement; and that the plaintiffs did not secure such a change in the schedule, and made no effort to do so, and that the plaintiffs knew, at the time that they made the statement, that they could not secure such a change in the schedule.</p> <p>The judge rejected the offer of evidence, and found for the plaintiffs; and the defendants alleged exceptions.</p>

<p>Contract on a poor debtor’s recognizance, entered into by the first-named defendant as principal, and by the other defendant as surety, and containing the usual conditions.</p> <p>At the trial in the Superior Court, before Mason, J., it appeared that the plaintiff duly recovered judgment against Henderson in the Municipal Court of the city of Boston, on May 29, 1884, and that execution duly issued on the judgment, but was returned in no part satisfied, and without service. On September 3, 1884, an alias execution on the judgment duly issued, and on September 8, 1884, the plaintiff made an affidavit, in due form of law, before Edward J. Jones, a master in chancery, that he believed, and had good reasons to believe, that Henderson “ has property not exempt from being taken on execution, which he does not intend to apply to the payment ” of the claim; and that Henderson “ contracted the debt with an intention not to pay the same.” Thereupon Jones, upon an ex parte hearing, granted a certificate “ that, after due hearing, I am satisfied there is reasonable cause to believe that the charge made in the said affidavit is true; and satisfactory cause having been shown, I hereby authorize the arrest of the said debtor on the annexed execution ”; and annexed the affidavit and certificate to the alias execution.</p> <p>On November 1, 1884, Henderson was arrested in Boston by an officer duly qualified to make the arrest and serve the execution, and carried before Edward J. Jenkins, a commissioner of insolvency, before whom he gave the recognizance.</p> <p>On November 24, 1884, Henderson duly gave notice of his intention to take the oath for the relief of poor debtors, before Henry W. Bragg, a master in chancery, and several hearings were had. On March 7, 1885, pending the examination, the plaintiff duly filed before Bragg charges of fraud, among which was the one sworn to in the affidavit, and hearings were had on such charges. The hearings on the charges of fraud were continued from time to time, and finally to April 18, 1885, at one P. M., at which time the plaintiff and Henderson appeared and remained during the whole hour, and after the lapse of the hour the plaintiff, before the appearance of the magistrate, departed. The magistrate, Bragg, was not in attendance within the hour, and did not appear and attend until a quarter past two o’clock, nor did any other magistrate attend in his place, and there were, no further adjournments or proceedings had.</p> <p>The defendants contended that the affidavit was made by the plaintiff falsely, fraudulently, and without probable cause, and that the plaintiff did not, at the time he made it, believe or have good reason to believe the affidavit to be true.' The plaintiff, before any evidence was offered by the defendants, asked the judge to rule that no evidence could be offered or introduced in this action to control or affect the affidavit, or to show that the affidavit was false, fraudulent, or made without probable cause, or that the plaintiff did not believe, or had no good reason to believe, that the affidavit was true; but the judge refused so to rule, and admitted evidence to show that the affidavit was false and fraudulent, and made without probable cause, and that the plaintiff did not believe, and had no good reason to believe, the affidavit to be true at the time of making.</p> <p>The judge instructed the jury, that the burden of proof was upon the defendants to establish the defence of fraud, and it must be proved affirmatively; that it was not sufficient to show that Henderson intended to pay the debt when he contracted it, nor that the plaintiff when he made the affidavit had no good reason to believe that Henderson did not intend to pay the debt when he contracted it; that, while it was necessary for the defendants to prove both these propositions, they must go further, and prove that the plaintiff did not believe the affidavit when he made it, and that it was in fact a corrupt affidavit; that if the defendants proved all this, and that the magistrate’s certificate authorizing the arrest was obtained by the fraud and perjury of the plaintiff, the plaintiff could not avail himself of the arrest thus obtained as the foundation of his cause of action, but as between the plaintiff and these defendants the arrest and recognizance would be void, and their verdict should be for the defendants; but that if the defendants had not sustained the burden of proof, and established wilful fraud and perjury on the part of the plaintiff, their verdict should be for the plaintiff in the penal sum named in the recognizance.</p> <p>The jury found for the defendants; and the plaintiff alleged exceptions.</p>

<p>Trust and Trustee— Title—Private Sale—Notice.</p> <p>A testator, after bequeathing to each of his four children the income of a specified sum to be held in trust, gave to them the residue of his estate, real and personal, to be divided equally between them share and share alike, to them, their heirs and assigns forever.” After the marriage of a daughter, the testator by a codicil directed that “all the property and estate so given my said daughter in addition to said income in said will shall be paid” to a trustee, “to be invested” for her benefit, and provided for the disposition of the trust fund by the trustee at her death. Held, that the trustee took the legal title to both the real and personal estate, with power to sell and convey.</p> <p>A notice of a sale of a trust estate under the Pub. Sts. c. 141, § 21, addressed to the “ heirs at law, next of kin, and all other persons interested ” is sufficient.</p> <p>A trustee, after the lapse of a year from the granting of a license to sell at private sale, is not obliged by force of the Pub. Sts. c. 142, § 18, cl. 4, to sell by public auction.</p>

Contract to recover twenty-nine cents, the fare between Boston and Melrose Highlands. Trial in the Superior Court, on appeal, without a jury, before Mason, J., who reported the case for the consideration of this court, in substance as follows: The following facts were admitted by both parties.

<p>Appeal from a decision of the Court of Insolvency, disallowing the claim of the appellants against an insolvent estate. The appeal was heard in the Superior Court, without a jury, by Mason, J., on agreed facts, which, so far as material, are as follows:</p> <p>On March 30, 1883, the appellants, as trustees, made a lease to McDewell and Adams of the premises numbered 156 Tremont Street in Boston for a term of ten years “ from the first day of November, A. D. 1884,” at a yearly rent of $10,000, payable in equal monthly payments, the first payment to be made on December 1, 1884. The lease provided that, if the “ lessees shall be declared bankrupt or insolvent according to law, or if any assignment shall be made of their property for the benefit of creditors, then and in either of said cases the lessors, or those having their estate in the said premises, lawfully may, immediately or at any time thereafter, and whilst such neglect or default continues, and without further notice or demand, enter into and upon the said premises, or any part thereof, in the name of the whole, and repossess the same as of their former estate, and expel the said lessees, and those claiming under them, and remove their effects (forcibly if necessary), without being taken or deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant; and thereupon the lessors may, at their discretion, relet the premises at the risk of the lessees, who shall remain for the residue of said term responsible for the rent and taxes herein reserved, and shall be credited with such amounts only as shall be by the lessors actually realized. Also, that in case the premises, or any part thereof, shall during said term be destroyed or damaged by fire,” the rent was to be proportionately abated until the said premises should have been put in proper condition for use.</p> <p>On October 15, 1884, the lessees, who were in possession of the premises under an agreement with prior lessees, made a voluntary assignment for the benefit of creditors, and on November 1, 1884, the lessors entered upon the premises to terminate the lease, and from and after December 1, 1884, were in possession of the premises.</p> <p>On December 2, 1884, the lessees filed a petition in insolvency, subsequently filing a schedule of creditors,,which included their liability under the lease. On December 30, 1884, the appellees, who had been chosen assignees of the estate, filed in the Court of Insolvency a disclaimer of the lease.</p> <p>On February 21, 1885, the lessors relet the premises for the residue of the term at a reduced rental, and their claim, which was disallowed, was for the difference between the rent reserved in the original lease and such reduced rental and certain minor matters.</p> <p>The judge found-for the appellees, and reported the case for the determination of this court.</p>

Contract against the defendant, as the maker of a promissory note dated May 20, 1880, payable “on demand, after date,” to the order of John Everitt, and by him indorsed to the plaintiff. Writ dated May 21, 1886. The answer set np, among other defences, the statute of limitations.

Tort for the obstruction of a right of way across the defendant’s land in Fall River. The plaintiff’s husband was joined as 'a party plaintiff.

Complaint to the Municipal Court of the city of Boston, in two counts.

Complaint for keeping and maintaining a common nuisance, to wit, a certain tenement used for the illegal sale and keeping for sale of intoxicating liquors. At the trial in the Superior Court, on appeal, before Aldrich, J., the defendant was a witness in his own behalf, and the government offered in evidence a record showing his previous conviction of a similar offence.

Complaint for keeping and maintaining a common nuisance, to wit, a certain tenement used for the illegal sale and keeping for sale of intoxicating liquors from May 1, 1887, to September 19, 1887. At the trial in the Superior Court, on appeal, before Aldrich, J., it was admitted that the defendant was the proprietor and had control of the Prospect House, a public hotel in Cambridge.

<p>Essex County — Insane Person — Support — Statute.</p> <p>Essex County may recover for the support of an insane person in its receptacle for the insane, under the Pub. Sts. c. 87, § 49, and is not restricted to § 47, as limited by the Pub. Sts. c. 220, §§ 60, 61.</p>

Complaint dated August 23, 1887, alleging that the defendant on April 1,1887, at Medway, “ and on divers days and times between said first day of April and the first day of November, eighteen hundred and eighty-six, did keep intoxicating liquors with intent to sell the same.” ■ At the trial in the Superior Court, on appeal, before Blodgett, J., evidence was admitted, against the objection of the defendant, that on July' 3, 1886, a seizure of liquors was made in the…

Complaint to the Municipal Court of tbe city of Boston, for an unlawful sale of intoxicating liquors on August 14, 1887, to Daniel H. Drew.

<p>Lottery — Indictment — Evidence.</p> <p>An indictment on the Pub. Sts. c. 209, § 1, alleging that the defendant “ did set up and promote a certain lottery, .... which said lottery was then and there for money,” is sufficient.</p> <p>At the trial of an indictment for setting up and promoting a lottery, the evidence described a game substantially like the policy or envelope game, and the judge ruled that, if the evidence was believed, “it was a lottery and a setting up and promoting a lottery,” and that the jury would be warranted in finding the defendant guilty. Held, that the ruling did not go too far.</p> <p>On cross-examination a witness was asked if a person, present with him on another occasion when the game was played, did not charge him with having picked up on the floor a ticket produced at the trial, and with having proposed to swear that it was bought of the manager of the game. Held, that the exclusion of the question was within the judicial discretion.</p> <p>If it does not appear with certainty that several transactions were not parts of one continuous setting up and promoting a lottery, the government is not obliged to elect one transaction on which to go to the jury.</p>

Complaint to the First District Court of Eastern Middlesex, alleging that Charles O. Tay and Frank J. Daley, on January 15,1887, “ did expose and keep for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth,” at Stoneham, without any “ license, authority, or appointment.” At the trial in the Superior Court, on appeal, before Hammond, J., the complainant testified for the government that Daley kept a saloon on Central Street, wherein were…

<p>Bill in equity, filed August 25, 1879, to redeem a parcel of land in the town of Florida, in this Commonwealth, from a mortgage held by the defendant. After the former decision, reported 140 Mass. 49, the case was again heard by W. Allen, J.., on a further report of the master and exceptions thereto, and reserved for the consideration of the full court. The facts appear in'the opinion.</p>

<p>Appeal by the Boston and Maine Railroad from a decree of the Probate Court, entered November 16,1885, allowing the will of Sarah Pendergast, formerly of Haverhill, who died in 1822.</p> <p>Trial in this court before Morton, C. J., who reported the case for the consideration of the full court, which, so far as material, is as follows:</p> <p>The executor claimed that the appellant had no right to appeal from the probate of the will; but it was agreed that the title of the appellant to real estate devised by the will might be affected by the establishment of rights under the will if it was admitted to probate, and the judge ruled that the appellant had the right to appeal.</p> <p>The following issue among others was submitted to the jury: “4. Was Sarah Pendergast a married woman, having a lawful husband alive at the time of the execution of said will ? ” The executor offered in evidence the writing propounded for probate as the will of Sarah Pendergast, which was delivered to him in 1884, having been found among papers in the possession of one of her heirs, and which, so far as material, was as follows: “ I, Sarah Pendergast, of Haverhill, in the county of Essex and Commonwealth of Massachusetts, being of sound mind, memory, and understanding, do make, publish, and declare this my last will and testament, in manner following: .... 1. T give, devise, and bequeath unto my grandson, Samuel Frink, Jr., and his heirs and assigns forever, all my real estate, consisting of a small lot of land situate in said Haverhill, with a small dwelling-house and barn on the same; and in case the said Samuel Frink, Jr., shall decease in my lifetime, I will that my daughter Elizabeth Frink shall have, hold, and enjoy the aforesaid real estate, and at her decease to be equally divided between her children.....In witness whereof I have hereunto set my hand and seal this thirty-first day of October, in the year of our Lord one thousand eight hundred and seven. Sarah Pendergast. [Seal.]”</p> <p>It appeared that in 1859 one of the heirs of Sarah Pendergast brought suit against the appellant to recover possession of a portion of the land devised by the will, and the executor offered in evidence a deed from Mary Ayer to “ Sarah Pendergrass, of Haverhill aforesaid, widow,” dated December 25, 1801, and duly recorded, which purported to convey the premises claimed by the demandant in that suit, together with testimony tending to show that the deed was found with the file of court papers in that case. The appellant objected to the admission of this deed; but the judge admitted it, on the ground that the recitals contained in it, and the fact that the grantee received it, and acted under it, had a bearing upon the question whether the husband of Sarah Pendergast, as it was conceded that she had been previously married, was living when she executed the paper purporting to be her will. There was also evidence tending to show that the tradition and repute in the family were that Pendergast died soon after his marriage.</p> <p>The appellant requested the judge to make the following rulings : “ 1. That, as matter of law, the paper offered could not be admitted to probate as a will, by reason of the lapse of time since it purported to have been executed, and the death of the testatrix. 8. That upon the evidence the jury would not be authorized to find that Sarah Pendergast was a widow at the time of the execution of the instrument propounded. 4. That, in determining whether or not Sarah Pendergast was a widow when she executed said instrument, the jury would have no right to consider the fact that she executed a paper purporting to be a will as evidence that she had legal capacity to execute a will devising land.”</p> <p>The judge declined so to rule; the appellant excepted to such refusal; and the judge submitted the issue to the jury, under instructions not otherwise excepted to.</p> <p>If the rulings and refusals to rule, made under the exception of the appellant, were incorrect, another trial of the issues was to be had; if otherwise, the case was to stand for further proceedings in this court.</p>

<p>Public Charity—Cemetery Corporation — Negligence.</p> <p>A cemetery corporation, which voluntarily uses its funds for objects akin to the purposes of its organization, is not a public charity, but is liable to the proprietor of a grave for the negligent burial of a stranger therein.</p>

<p>Bill in equity, filed March 25,1884, by two of the administrators of the estate of George W. Simmons against the surviving partners of the firm of George W. Simmons and Son, one of whom was the remaining administrator, for an account and for the recovery of an amount due the estate. On January 29, 1887, the bill was amended so as to make the surviving children of said Simmons, and the representatives of his widow and of a deceased child, parties defendant. The case was referred to a master, whose report, so far as material, is as follows:</p> <p>On February 1, 1869, George W. Simmons, who had been engaged for many years in the business of manufacturing and selling clothing at “ Oak Hall,” so called, numbered 32 and 34 North Street, in Boston, formed a copartnership with his son, George W. Simmons, junior, and Philip A. Spofford. By the terms of the partnership, George W. Simmons was to receive eighty-two per cent of the profits, George W. Simmons, junior, ten per cent, and Philip A. Spofford eight per cent of the same; and this arrangement continued until the death of George W. Simmons, except that his share of the profits was from time to time reduced, and the share of the profits of George W. Simmons, junior, was correspondingly increased.</p> <p>George W. Simmons died, intestate, on December 14, 1882, leaving a widow and seven children. The balance of capital to his credit on that day was §66,480.10; to the credit of the defendant Simmons, §9,584.29; and to the defendant Spofford, §5,203.29; making a total capital of §81,267.48. The widow was entitled to one third of her husband’s interest, and the children, including the defendant Simmons, were entitled to the remaining two thirds.</p> <p>Immediately after the death of George W. Simmons an account of stock was taken by the firm, and on December 20,1882, the defendants Simmons and Spofford foi*med a new copartnership under the firm name of G. W. Simmons & Co., by the terms of which the former was to receive ninety-two per cent of the profits and the latter eight per cent of the same. The new firm paid the liabilities, and began business at the same place with the stock and assets of the old firm, and without any new capital, and have continued to do a profitable business. No consent was given by Virginia A. Beals, Edith W. Beals, or Frances A. Henshaw, three married daughters of George W. Simmons, or by the representative of the last named daughter and her children, to such use and appropriation of the stock and assets of the old firm, and they always objected thereto; but the same was concurred in by the widow and the other three children, besides the defendant Simmons. The heirs were not able to agree upon the appointment of administrators upon the estate, and the Probate Court, on February 5, 1888, appointed two administrators, of whom the defendant Simmons was one. From this decree an appeal was taken, and in November, 1883, the plaintiffs and the defendant Simmons were appointed administrators by the Supreme Judicial Court.</p> <p>On September 1, 1883, the widow and the three children last named executed the following writing: “ The undersigned desire, and do hereby give their consent, that their respective shares in the interest of G. W. Simmons (deceased) in the firm of G-. W. Simmons and Son, Oak Hall, shall remain in the business as at present conducted by G. W. Simmons and P. Augustus Spofford under the name of G. W. Simmons & Co. for a period of three years ; simple interest to be paid reckoned at rate of seven (7) per cent yearly, —payable quarterly or monthly if desired.”</p> <p>On August 27, 1883, the surviving partners paid to two of the heirs, and to the representative of the third, who had not consented to the use by the firm of their interests in the estate, the sum of $20,000, taking the following receipt therefor: “ Boston, August 25, 1883. Received of George W. Simmons and T. Augustus Spofford, surviving partners of the firm of George W. Simmons and Son, the sum of ($20,000) twenty thousand dollars, the same to be accounted for in settlement of the estate of George W. Simmons, deceased, as received on account of our respective shares in his interest in the firm of George W. Simmons and Son, and which to that extent shall be discharge of the liability of the surviving partners to us as heirs of said deceased, directly or through administrators. This receipt is executed without prejudice to our further claims on said surviving partners, whether through administrators or otherwise, and is strictly limited to the business and assets of Oak Hall.” Before and after this payment the defendants Simmons and Spofford expressed a willingness to pay to the parties to this receipt the whole amount to which they were entitled, but without offering any specific sum or rendering any account whereby it could be ascertained. The parties could never agree as to the methods of ascertaining, or as to the persons by whom such amount should be ascertained, but said defendants were willing to have the books examined by an expert who should be suggested by tbe parties seeking tbe examination. No person to act as such expert was suggested, though requested by said defendants. Offers were made to have the amount determined by arbitration, but no names fqr arbitrators were ever suggested or agreed upon; and said defendants were active in urging and procuring the bringing of the present suit, as the only means of fixing the amount of their liability.</p> <p>Among the individual debts of George W. Simmons, deceased, was a subscription of $5,000 to the stock of a new corporation called the Craighead and Kintz Manufacturing Company, and a note amounting with interest to $13,433.33, secured by mortgage of real estate at Ballardvale. The subscription of $5,000 was paid on May 4, 1883, by the defendant Simmons, out of the assets of the firm, under a written agreement, dated April 27, 1883, and signed by the widow and the surviving children, and the representative of the deceased daughter and her children, which provided that the subscription might be “ paid out of any personal assets of the estate of said George W. Simmons, deceased, the widow and each of the heirs to bear their proper proportion of the payment. They also agree that said sum of five thousand dollars so to be paid shall be considered as so much personal estate taken out of the estate subject to administration, and that they will protect each other if any contingency shall arise requiring the widow and heirs of said George W. to make restitution to the administrators when appointed. The purpose of this agreement is to enable said corporation to get in all its capital, and to provide for the five thousand dollars subscribed by said George W., payment of which could not now be enforced, but which we are willing to pay according to our several interests and liability (if any exists), and so to take so much of the personal assets out of the administration.” The mortgage note was paid in the same manner, on December 7, 1883, under an agreement, which was dated June 21, 1883, and signed by the same persons, and was as follows: “ The undersigned hereby request Geo. W. Simmons to pay — out of any available assets of the estate of Geo. W. Simmons, deceased — the mortgage on the Ballardvale real estate, the amount of the mortgage to be allowed him in his settlement with the administrators of the estate when appointed.”</p> <p>Among the assets of the estate in the possession of the defendant Simmons were fifteen St. Paul and Sioux City bonds of one thousand dollars each. These bonds were sold by brokers in New York, employed for that purpose by the defendant Simmons when the market reached prices satisfactory to him, and the proceeds, with interest and coupons, amounting to $18,807.64, were paid over to the defendant Simmons by the brokers, in one payment by check, in February, 1885. This check was delivered by him to the plaintiff Kobinson, who gave a receipt therefor, dated February 11, 1885, and held the proceeds as a part of the estate in his hands. The defendant Simmons, when he began to sell these bonds, intended to apply the proceeds to the Craig-head and Kintz subscription and the Ballardvale mortgage, and ordered them to be sold for that purpose, but at the time of the payment of the subscription, on May 4, 1888, none of the bonds had been sold ; and at the time of the payment of the mortgage, on December 7, 1883, three bonds only had been sold, realizing $3,436.25, in the hands of the brokers. The other debts of the estate have been paid, the payments being largely made by the defendant Simmons out of the assets of the new firm. ' The amount so paid before the appointment of administrators was $11,792.45, and that paid subsequent to such appointment was $25,041.18; the balance of $14,607.85 over and above the mortgage being made up principally of interest on mortgage notes of George W. Simmons, deceased. The defendant Simmons collected the rents of the real estate, and paid the taxes and other expenses thereon. The net income received by him from the real estate up to February 1, 1885, was $15,448.95, which sum was paid into the general fund of the new firm, and was credited on their books to the estate of George W. Simmons, to which account also were charged all the disbursements and other expenses on account of the real estate.</p> <p>The master found that at the death of George W. Simmons a considerable portion of the stock then on hand was partially manufactured clothing, and that the only way to realize the fair or substantial value of such goods was to deal with it as the defendants did, by completing the garments, adding new materials, and disposing of them at retail; that if the unfinished clothing had been sold, either in large or small lots, in the condition in which it was on December 14, 1882, a small percentage only of its cost could have been realized ; that the manner in which the defendants dealt with the whole stock was necessary in order to obtain its full value; that if any allowance was to be made to the defendants for their skill and services in realizing the full value of the whole stock, such allowance would be equal to twenty per cent of the profits, to be deducted from the share of George W. Simmons, deceased; and that, if profits were to be allowed to the estate of George W. Simmons and to the defendants in proportion to the amounts of capital standing to their several credits, and without regard to the share of profits which the parties were severally receiving at his death, the value of the services of the defendants in earning them was forty per cent of such profits; and reserved for the decision of the court the rule for the measure of the liability of the surviving partners, upon the facts stated in his report.</p> <p>Hearing before Devens, J., who reserved the case for the consideration of the full court.</p>

Tort for personal injuries sustained by the plaintiff on May 29, 1872, while in the defendant’s employ. Writ dated June 16, 1885. Trial in the Superior Court before Aldrich, J., who allowed a bill of exceptions, in substance as follows: The accident to the plaintiff occurred in the finishing-room of the defendant’s mill, a room filled with gigs, shears, and other machines, all of which were run by steam or water power.

<p>Release — Seal — Seamen’s Wages — Fraud or Coercion — Statute.</p> <p>The mutual release of wages by master and seamen before a shipping commissioner, provided for by the U. S. Rev. Sts. § 4552, need not be made or authenticated under seal, and is conclusive if it is executed and attested as required, without fraud or coercion.</p>

Writ oe entry, dated October 1, 1886, to recover a parcel of land in Stoughton. The case was submitted to the Superior Court, and, after a judgment for the tenant, to this court, on appeal, on an agreed statement of facts, in substance as follows: On September 27, 1854, the plaintiff owned a tract of land in Stoughton, which was bounded on its easterly side by land of O. Ames and Sons.

<p>Negligence — Personal Injuries — Evidence — Due Care.</p> <p>A contractor to do the carpenter-work on a brick building in process of erection, who hires an experienced carpenter in the full possession of his faculties to do the furring on a room, is not bound to maintain artificial lights to prevent his wandering out of a regular passageway, and will not be liable to him if he so wanders in the darkness, and, falling through an opening in another room, is injured.</p> <p>Evidence of the usage of builders as to guarding the openings in the floors of buildings in process of construction is competent on the question whether an experienced carpenter, who is injured by falling through such an opening, was in the exercise of due care.</p>

The appeal was heard in the Superior Court, and, after a judgment dismissing the appeal, in this court, on appeal on an agreed statement of facts, in substance as follows: The appellants, owners of a store in Boston, made a new lease thereof, on January 21, 1885, to the appellee Allen, who was occupying the premises under a guaranteed lease.

<p>- Complaint, under the St. of 1885, c. 342, § 1, by one Chase, to the Municipal Court of the city of Boston, alleging that at the time of the commission of the offence therein set forth a certain room'in a certain building in Boston “ was kept and occupied by some person whose name is unknown to said Chase, with apparatus, books, and other devices—a more particular description of said apparatus, books, and devices is to said Chase unknown —. for the purpose of registering bets, and of buying and selling pools upon the results of trials and contests of skill, speed, and endurance of men, birds, beasts, and machines,” and that the defendant, on May 28, 1887, “ was present in said room, and then and there engaged in the business and employment of registering bets and selling pools upon the results of certain trials and contests of speed between contesting beasts, to wit, contesting horses.”</p> <p>In the Superior Court, on appeal, before the jury were impanelled, the defendant renewed a motion, which was made and overruled in the Municipal Court, to quash the complaint, for the following reasons: “1. That the complaint herein does not fully, plainly, substantially, and formally allege against him any crime or offence known to the laws of this Commonwealth. 2. Because the apparatus, books, and other devices referred to in said complaint are not described, nor are the uses and purposes for which they were designed and intended set forth ,• nor is it alleged in said complaint that said apparatus, books, and other devices were not intended and designed for use for lawful purposes. 3. Because said defendant is therein charged with being engaged in both the business and employment therein set forth. 4. Because the defendant is therein alleged to have been engaged in the business and employment of both registering bets and selling pools. 5. Because the method or manner of registering the bets and selling the pools, referred to in said complaint, is not stated or described, and because said bets and pools are not defined or described; nor are the facts and circumstances connected with the alleged registering of bets and selling of pools, referred to in said complaint, set forth or referred to. 6. Because the trials and contests of speed between contesting beasts, viz. contesting horses, therein referred to, are not sufficiently described; and because said contesting beasts, viz. contesting horses, are not sufficiently described. Bacon, J., overruled the motion.</p> <p>At the trial, the first witness called by the government testified to numerous visits to the room between May 18 and May 28, 1887, inclusive, and that upon these occasions the defendant was present in the room, and engaged in doing certain things specified by the witness, which tended to show that the defendant was then and there engaged in the business named in the complaint. The defendant objected to the admission of evidence connecting the defendant with the room upon more than one date, and demanded that the government should elect a particular date upon which it would rely. The judge ruled that the evidence objected to should be admitted for the purpose of showing the character of the business carried on in the premises, and declined to order the government to elect a particular date upon which it would rely for conviction until all the evidence was in. When the evidence was in, the government elected May 28,1887, as the date upon which it would rely. In his charge to the jury, the judge referred to the evidence which had been admitted, as to what took place in the premises at different times from that named in the complaint and relied upon by the government, and instructed the jury that they should consider it only as it related to the question whether the premises were kept for the purpose named in the complaint on May 28, and for that purpose alone. -</p> <p>Upon cross-examination of the government’s witnesses, it appeared that in the court below evidence was introduced tending to show that the defendant was engaged in the business named in the complaint in the premises referred to upon several dates other than May 28, and a stenographer, called by the defendant, on cross-examination, produced a memorandum made by him in the trial below, that counsel for the defendant “ claimed that the evidence was not sufficient to prove that any offence was committed on the date named.” The defendant requested the judge to order a verdict for the defendant, on the ground that the government had failed to show that the offence upon which it sought to convict the defendant in the Superior Court was the identical offence upon which he was convicted in the court below; but the judge declined so to rule.</p> <p>The defendant requested the judge to require the government to elect whether it would ask the jury to convict the defendant of being in the business, or in the employment, referred to in the complaint; and also whether he would ask the jury to convict the defendant of being engaged in the business or employment of buying or selling pools, or in that of registering bets. The judge declined to comply with this request, and ruled that, if the defendant was proved to have been engaged either in the business or employment of buying or selling pools or registering bets he might be convicted.</p> <p>The defendant requested the judge to instruct the jury as follows : “ 1. In order to convict, the jury must find every element present in the case; viz. that the defendant was, upon the date named, present in a place or room fitted with apparatus, books, and other devices designed and intended for the purpose of registering bets and of buying and selling pools upon the results of certain trials and contests of speed between contesting beasts, to wit, contesting horses, and was then and there engaged in the business and employment of registering bets and selling pools upon the results of said trials and contests. 2. The things sold by the defendant, if he sold anything, must have been pools within the meaning of the statute, and that the following are standard definitions of a pool: ‘ the stakes played for in certain games ’; ‘the stake played for in certain games of cards.’ 3. If the jury are not satisfied beyond a reasonable doubt that it was true, at the time the complaint was drawn, that Chase, the complainant, did not have and could not give a more particular description of the apparatus, books, and other devices in the premises named in the complaint than that contained in the complaint, there is a variance between the allegation and the proof, and the jury must acquit the defendant. If, Chase had, and could have given, a fuller and better description of said apparatus, books, and devices, he was bound to do so, and the absence of it is fatal to the complaint. The offence must not only be proved as charged, but it must be charged as proved.”</p> <p>The judge declined so to instruct, but gave the following instructions : 1. In order to convict they must find every element present in the case; viz. that if the defendant, at the time named, was present in any such place as that named in the statute, that is, any place like or similar to that named in the statute, and was then and there engaged in any such business or employment as that named in the statute, he would be guilty. 2. A pool, generally speaking, is a combination of stakes; and within the meaning of the law, a pool is money that has been paid in by those who have bought a right in it, and which is to be paid over to the winner, if he gets the right number in a game of chance. 8. The character of the apparatus, books, and other devices referred to in the complaint, was immaterial, and need not be proved; and the evidence which had been offered by the defendant, tending to show that Chase, the complainant, at the time the complaint was made by him, had and could have given a more particular description of said apparatus, books, and devices than that contained in the complaint, was immaterial.</p> <p>After a verdict of guilty, the defendant moved in arrest of judgment, assigning the same reasons as for the motion to quash. This motion was overruled; and the defendant alleged exceptions.</p>

<p>Contract for breach of the following agreement: “ Boston, December 24, 1885. Sold for account of Messrs. Schramm & Co., Maroim, Brazil, through Messrs. Smith and Schipper, New York, representing, to the Boston Sugar Refining Company, Boston, a cargo of about four hundred tons more or less of Maroim brown sugars at five and one eighth cents per pound, duty paid, landed terms. Less 2-J per cent payable in cash ten days from average date of delivery. Sugar to be shipped per Swedish schooner Sylphide (or in case of disaster to that vessel by another vessel) to Boston during January or February, 1886. Settlement basis 84° test, allowance at l'ate of J^c. per degree down, -jV c. per degree up, fractions of a degree pro rata.”</p> <p>At the trial in the Superior Court, before Blodgett, J., it was admitted that the contract was made by the defendant’s agent with one Verplanck, a broker, who represented in Boston Smith and Schipper, the plaintiff’s agents in New York. The parties agreed that the clause in the contract, “ Settlement basis 84° test, allowance at rate of c. per degree down, Jg c. per degree up, fractions of a degree pro rata,” referred to a test of the cargo by the polariseope, and provided for an adjustment of the price according to the test, five and one eighth cents per pound to be paid in case the cargo tested 84°, and Jg of a cent per pound less, and ^ of a cent per pound more, in case of variation from that test.</p> <p>The plaintiffs introduced evidence tending to show that the Sylphide was loaded at Aracaju, the port of Maroim, in Brazil, between February 17 and 20,1886, with a cargo of Maroim sugar (which was manufactured during the months from October, 1885, to January, 1886), and that she arrived in Boston, with her cargo in good condition, on March 80,1886; that her cargo was landed and placed in the warehouse of the defendant; and that, on being tested with the polariseope in the manner required by the contract, it tested 79-j*^°; after which the defendant wrote to Smith and Schipper, the agents of the plaintiffs in New York, that the sugar was not a proper quality to have shipped under the contract, and declined to receive it.</p> <p>It was admitted that the parties afterwards by agreement sold the cargo without prejudice, and that the net proceeds were applied to the reduction of the plaintiffs’ claim, the difference between the contract price and the net proceeds of the sale being $3,929.88, which amount it was agreed that the plaintiff was entitled to recover, if entitled to recover at all.</p> <p>The plaintiffs read in evidence the deposition of the captain of the Sylphide, which set forth that he was in command of the “ brig Sylphide. I have been in command of her from June, 1885, when she was launched. We call it a schooner in Sweden; here you call it a brigantine or topsail schooner.” And the defendant requested the judge to rule that the plaintiffs had not made out a case, because they had not shown that the cargo was shipped by a schooner called the Sylphide; but the judge refused so to rule, saying that the description was well enough upon the evidence, and that, if the defendant had any right to insist upon any variance, it had waived it.</p> <p>The defendant contended that it was induced to make the contract by false and fraudulent representations made to it by Verplanck, who acted for the plaintiffs in negotiating the sale, and further relied on the untruth of these representations inducing the contract, as constituting a defence in equity. One Foster, the president of the defendant company, testified that he conducted the negotiation for the purchase of the sugar named in the contract with Verplanck; that he knew that the crop of sugar at Maroim was a crop that came in from October to January ; that “ Verplanck offered me a cargo of sugar coming from the port of Maroim, in Brazil, and described that cargo to me as eighty-four test sugar ”; and that “ a variation of one degree nothing would be said about; I think a variation of two degrees they might complain; anything more than that would be serious ; anything more than that, I think they would try to get an allowance on it.” On cross-examination, he testified that Verplanck “ offered to me a cargo of Maroim sugars of eighty-four degrees test”; that he could not describe Verplanck’s language fully, but that that was his best recollection; that “possibly, it wouldn’t be out of the way,” though he did not remember, Verplanck might have come to him with a telegram stating^ “You are authorized to offer a cargo of sugar ex Sylphide from Maroim, 84° settlement basis, a sixteenth up and a tenth down”; and that he did not think that Verplanck had been guilty of any fraud, and that he did not think that he would be.</p> <p>The defendant’s counsel admitted to the court that he had no evidence to show that Verplanck or Smith and Schipper knew at the time of the sale that the quality of the cargo was not as defendant claimed it was stated by Verplanck, or that the crop of Maroim sugar for that year was an inferior one ; and the plaintiffs admitted that they had not informed Smith and Schipper, when authorizing them to sell this cargo, or prior to such sale, that the crop of Maroim sugar that year was inferior.</p> <p>At the conclusion of this testimony, the judge asked the defendant’s counsel whether he intended to change the testimony, or to offer any other evidence of fraudulent representations to support the defence on this point; and the defendant’s counsel having stated that he did not, the judge said, “ I will not say that there is not some evidence of a misstatement of fact ” in regard to the cargo, but ruled that there was no evidence to support the defence on this point, and that the defendant had failed to establish the equitable defence on which it relied; to which ruling the defendant excepted.</p> <p>The witness Foster was asked, on cross-examination, whether the market price of sugar had not fallen between the time of the contract and the time when the cargo in question was landed, and answered, first, that he did not remember, and finally, that he thought it had, but could not say how much; and Verplanck, when asked how much the market price of sugar had fallen between the date of the contract and the date when this cargo arrived, answered, “ Three eighths of a cent,” and said that the amount claimed by the plaintiffs was in fact the difference between the contract price and the market price of the sugar, and was seven sixteenths of a cent a pound less than the contract price. The defendant objected to the admission of this evidence, but the judge admitted it.</p> <p>The defendant further contended, upon the evidence, first, that the sugar delivered was not Maroim sugar; secondly, that there was a usage in the sugar trade in Boston by which the defendant, under a contract like the one in suit, was entitled to reject the sugar, if, when tested by the polariscope, it did not show the test within two or three degrees of the settlement basis fixed in the contract; but the judge, without objection from either party, submitted to the jury, as the only questions of fact in issue, whether the sugar delivered was Maroim sugar, and whether the usage upon which the defendant relied existed, under instructions to which no objection was taken.</p> <p>The jury found for the plaintiffs ; and the defendant alleged exceptions.</p>

Contract to recover $7,000 upon two certificates of membership issued by the defendant on the life of Edward A. Clapp. The declaration alleged that the certificates were issued on February 18, 1885, and March 9, 1885, respectively, and were payable to the plaintiff; and that Clapp died on February 8,1886.

<p>Libel — Construction — Character.</p> <p>The publication of an article by a manufacturer cautioning the public not to form an opinion of goods of his manufacture from those advertised by a tradesman as of “ first quality,” since they were sold to him as “ damaged,” is not actionable as an imputation on the tradesman’s character.</p>

<p>Promissory Note — Payment — A dminislralor — Evidence.</p> <p>An agreement by an heir with an administrator that notes held by the latter may be deducted from her distributive share before the final settlement of the estate will not amount to payment of the notes.</p>

<p>Bonds—Coupons — Days of Grace — Election — Shares of Stock—Damages — Specific Performance.</p> <p>Bonds for the payment of money and interest coupons thereon are not entitled to grace.</p> <p>If bonds issued by a corporation provide for payment at maturity, in money or in shares of stock at the option of the holder, the former to be raised from a sale of the latter, time is of the essence of the contract, and a. bondholder who on Monday, the day of maturity being Sunday, offers his bonds for conversion into shares, is too late.</p> <p>A corporation issued bonds payable by statute in money or in shares of stock at or before maturity at the election of the holder, and, the bonds maturing on Sunday, at three o’clock on the Saturday afternoon before, that being the close of its business hours, sold and transferred to a trust company all the shares uncalled for and legally issuable for money to redeem the outstanding bonds. A bondholder was told, when he applied at the treasurer’s office at about ten minutes after three o’clock to convert his bonds into shares, that he was too late, and did not in consequence present his bonds for conversion on that afternoon. On Monday he surrendered his bonds for their par value in money, not waiving thereby any rights to the shares or to their value. Subsequently the bondholder brought a bill in equity against the corporation for relief, and, upon its being merged in another corporation, joined the latter as a party defendant. Held, that he had seasonably exercised his right of election, and that he was entitled, not to specific performance, but only to the market value of the shares at the maturity of the bonds.</p> <p>An insurance company which makes an investment in unauthorized bonds may enforce the payment of the bonds.</p>

<p>Railroad—Passengei—Loss of Life — Due Care — Statute — Declaration.</p> <p>If a passenger on a railroad car alights at his destination, and, after the train has passed on, starts away from the station over an adjacent crossing of a highway at grade to go to some other place, he ceases to be a passenger.</p> <p>A woman alighted from a railroad train upon a station platform near the crossing of a highway at grade, where the gates were down, and, as soon as the train had passed, without waiting for the gates to be raised and without looking to see whether a train was approaching on the other track, hurried over the crossing and was killed. The crossing was covered with planks for the entire width of the railroad, platforms sloping down to the tracks stretched away from it on either side, and there was nothing to prevent passing from the platforms to the crossing. Held, that there was no evidence that she was in the exercise of due care.</p> <p>An action is not maintainable against a railroad under the Pub. Sts. c. 112, § 213, for the loss of life of one not in the exercise of due care, if the declaration is framed on § 212, and merely avers that the deceased while a passenger, or while not a passenger in the exercise of due care, was killed by the negligence of the defendant, its servants or agents.</p>

<p>Beneficiary Association — Assessments — Payment — Forfeiture — Waiver.</p> <p>The levy and acceptance of assessments by a beneficiary association without condition, after the conditional acceptance of a prior overdue payment, is a waiver of the right to avoid a certificate for delay of payment.</p>

<p>Contract — Consideration — Evidence — Pleading.</p> <p>The payee of a note promised that, if the maker would assent to a compromise of a claim that would lessen such maker’s share in an estate, he would accept the percentage taken to settle the claim in full settlement of what was due on the note. The assent was given, the compromise was made, proving beneficial to the estate, and full recovery was had on the note, the maker pleading a general denial and payment only. Held, in an action for breach of the agreement, that there was evidence of consideration, that it was not a release or satisfaction, but collateral, and that the judgment on the note was no bar.</p>

Replevin of household furniture. Writ dated June 4, 1877. An amended answer filed by the defendant on October 24, 1884, to avail himself of the St. of 1883, c. 223, § 14,*' alleged that he was the assignee of a second mortgage of the replevied goods; that he took possession of the goods for breach of condition ; that the first mortgage was given to one Ridgeway; that the plaintiff, on May 23, 1877, became the assignee of the first mortgage, and that on or about June 14,…

Cortract upon a promissory note payable to the order of the plaintiff’s testator, and signed by the defendants. Answer, want and failure of consideration. At the trial in the Superior Court, before Knowlton, J., the jury returned a verdict for the defendants, and the plaintiff alleged exceptions, which, so far as material, appear in the opinion.

<p> Master and Servant—Negligence—Personal Injuries. </p> <p>A machinist and engineer, who undertakes extra work for extra pay, first examining the place and receiving particular directions, within three feet of a rapidly revolving shaft, which he knew was in operation, and is caught hy a set screw projecting from a collar on the shaft next a journal which he had once before oiled, the screw being of a kind in common use, with the nature and use of which he was familiar, cannot recover from his employer for an injury so received.</p>

<p>Writ of entry, dated August 16, 1884, to recover a parcel of land in Newton. Plea, nul disseisin. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, which, so far as material, was as follows:</p> <p>The demanded premises were a strip of land bounded on the east by Rowe Street, on the north by land of the demandant, on the west by land now or late of Washburn, and on the south by land of the tenant. The northerly line of the demanded premises was indicated by a retaining wall recently erected by the tenant, and the southerly line by a straight line, which was at its westerly end fourteen feet and six inches north of the centre line between the two present middle tracks of the railroad, and fifteen feet and six inches north of the centre line at its easterly end. The demanded premises, the land of the demandant, and that of the tenant opposite thereto, were formerly a part of the poor-house farm of the town of Newton.</p> <p>The demandant offered in evidence a deed, dated May 15,1847, from the town of Newton to William Jackson, which conveyed to him the poor-housé farm, “ being represented on a plan drawn by Seth Davis, dated April 80,1847,” and “ reserving and excepting nevertheless so much of this parcel of land as belongs to the Boston and Worcester Railroad Corporation, whose road runs through the same”; that in 1877 she had acquired title, by mesne conveyances from Jackson, to that portion of the land so conveyed to him which, was situated on the northwesterly corner of Rowe Street and the railroad; that the southerly boundary of her land on the railroad was indicated by a picket fence with turned posts; that the fence stood on the southerly line of the demanded premises, and was erected in 1852 by one Adams, who then owned the land of the demandant; that from and after 1852 she and those persons through whom she claimed had occupied the demanded premises; that the tenant destroyed a portion of the fence in 1880 and the remainder in 1883, and since those years had occupied the parts of the demanded premises north of the portion of the fence so destroyed; and introduced othe deposition of Washburn, who testified that the fence stood on the southerly line of the demanded premises. The demandant contended that she was entitled to maintain her action by proof of more than twenty years’ adverse possession of the demanded premises.</p> <p>The tenant offered in evidence a deed dated September 25, 1833, from the inhabitants of Newton to the Boston and Worcester Railroad Corporation, of which the tenant was the successor, conveying, in consideration of three hundred dollars, “ the receipt whereof is hereby acknowledged,” a strip of land through the poor-house farm about forty-six rods long and about two rods wide at its easterly end and about three rods wide at its westerly end, “ as now staked out or fenced for said corporation railroad,” and covenanting “ that said inhabitants will and their assigns shall make, keep, and maintain at all times hereafter a good and sufficient wall or walls, fence or fences, on the boundary lines between their own lands aforesaid and the premises above granted, which fences or walls shall be forever kept, maintained, and made at their expense and the expense of their assigns.”</p> <p>The tenant also offered evidence that the records of the town of Newton contained a copy of a warrant, dated October 23, 1838, for a town meeting to be held on November 12, 1838, article 4 of which was as follows: “ To see if the. town will authorize the selectmen to sell so much land on each side of the Worcester Railroad near the poor-house as will make the line straight” ; that the record of the meeting of November 12,1838, contained the following action under article 4: “ 4th article was referred to the selectmen ”; that on October 1,1839, the “ selectmen of the town of Newton, in consideration of eighteen dollars to us paid by the Boston and Worcester Railroad corporation, the receipt whereof is hereby acknowledged,” conveyed to it “ two certain strips or parcels of land, being a part of the poorhouse farm in said Newton, containing about forty-eight square rods lying on both sides of said railroad as it passes through said poor-house farm, and making together with what said railroad corporation had previously purchased a lot of land fifty-six feet wide and about forty-six rods in length. The northerly line of said northerly strip of land being thirty-one feet from the northerly rail of said railroad track,” or thirty-eight feet from the centre line between the two present tracks of the railroad; and that the treasurer’s books of the town of Newton contained the following entry: “1840, Jan. 1, Cr. Cash of Boston and Worcester Railroad for additional land, and removing fences, $30.66.” It appeared that the premises described by the deed of 1839 were not wholly occupied by the railroad until 1883.</p> <p>Edward D. Bolton, called by the tenant, testified that he was a civil engineer; that between April, 1871, and December, 1873, he took certain measurements by which he got the position of the picket fence with the turned posts adjoining the demandant’s land; that he measured from the centre line between the two existing tracks of the railroad to the picket fence, which was situated northerly, and distant from the centre line twenty-seven and ten one-hundredths feet on Rowe Street, and seventeen and seven tenths feet at the other end thereof; that he also measured from the centre line to where certain fences then were on the southerly side of the railroad opposite the picket fence, and that the measurement was twenty-seven and ninety-five one-hundredths feet near one Kimball’s; that he should say that the Kimball fence was, an old fence, as it was weather-beaten and had been built some time; that twenty-eight feet measured from the centre line northerly extended into the land beyond the fence he found on the demandant’s land, to some extent. On cross-examination, he stated that he did not know whether the fence existing on Kimball’s land at the time of the survey corresponded with the present fence there or not.</p> <p>Walter Shepard, called by the tenant, testified that he was a civil engineer ; that the retaining wall, which was built in 1883 upon the demanded premises, was built upon a line parallel with and twenty-eight feet northerly from the centre line, between the centre tracks, which were in the same position as the tracks which existed there in 187 3 ; that the wall was placed upon the line which he obtained from the deed dated October 1, 1839; that a line measured thirty-one feet northerly from the north rail of the first railroad track that was built by the railroad would agree with the face of the retaining wall as it existed at the time of the trial; that the southerly line of a strip of land fifty-six feet wide would agree with the fence on the south side of the railroad, against the land of Kimball, as it existed at the time of the trial; and that, to get a strip of land fifty-six feet wide, measuring from the present fence against Kimball’s land, it would be necessary to come out as far as the face of the retaining wall on the northerly side of the railroad.</p> <p>The tenant further introduced in evidence a deed dated June 6, 1843, from the “selectmen of the town of Newton” to the Boston and Worcester Railroad Corporation, conveying, “ in consideration of twenty-seven dollars to us paid ” and “ the receipt whereof is hereby acknowledged,” a strip of land adjoining that previously conveyed on the north, “ with the condition that said corporation build at their own expense all the fence necessary on the southerly line of said lot separating the same from the railroad, — said fence to be of as good quality as that lately removed by said corporation, — and when built, said town is to maintain tlie fence on said line hereafter forever.” It did not appear that any portion of the land described by the deed of 1843 was occupied by the railroad prior to 1883.</p> <p>The tenant asked the judge to rule and instruct the jury as follows : “ 1. That the vote of the town of Newton of November 12, 1838, under article 4 of the warrant, authorized the selectmen to sell so much land of the poor-farm as would make the line straight. 2. The deed of the selectmen of Newton, dated October 1, 1839, and the receipt of the consideration thereof by the town, if proved as facts, establish the boundary of the land of the town and the railroad company, and the town of Newton and persons claiming through or under it are bound thereby. 3. On the evidence in this case, the demandant has shown no title to any part of the strip of land the northerly side of which is parallel with and twenty-eight feet northerlj' from the centre or base line of the railroad. 4. The deed of September 25, 1833, the deed of October 1, 1839, and the deed of June 6, 1843, to the railroad corporation, if the jury shall find that the town of Newton received the consideration of said deeds, determine the extent of the exception of the deed from the town of Newton to William Jackson, and the jury are authorized upon the evidence to find that, when said town conveyed to Jackson its poor-farm, it did not convey to him any of the land described in said first mentioned deeds, but that the same then belonged to the railroad corporation. 5. The recital in the deed of Newton to Jackson, excepting therefrom whatever then belonged to the Boston and Worcester Railroad Corporation, taken in connection with the fact that the deeds to the company purported to convey the property on which the railroad then existed and was in operation, may be taken by the jury as an admission by the town that those deeds conveyed title to the company.”</p> <p>The judge declined so to rule as requested by the tenant, but instructed the jury that the deed of October 1, 1839, and the deed of June 6, 1843, were not operative to convey any title whatever to the Boston and Worcester Railroad Corporation, and said, “ So far as the deed of 1839 is concerned, I rule to you, as matter of law, that that deed did not convey to the Boston and Worcester Railroad Company the piece of land which the parties who made that deed intended to convey; but if the Boston and Worcester Railroad occupied or did have possession of only that, if they took a valid deed by that, then I should rule to you that the demandant could not obtain adverse possession; but that is not material, as I have ruled to you as matter of law that no title to that piece of land passed to the Boston and Worcester Railroad Company; ” that the case was to stand as if those deeds had never been given ; that, if the jury should find that the demandant, and;those under whom she claims, had had open, exclusive, and adverse possession of the demanded premises from 1852 to 1880, then, so far as was necessary to obtain a title by adverse possession, the demandant had shown herself to come within the rule; that, if they found for the demandant up to the fence, they should find, upon the evidence, as matter of fact, the line upon which the fence was constructed and maintained, because the demandant does not claim that she has a claim to land south of that fence; and that “ no adverse occupation of the land belonging to the railroad corporation since 1852 will give any title against it.”</p> <p>The jury found that the tenant had disseised the demandant of so much of the demandéd premises as lay north of a line which was twenty-seven and ten one-hundredths feet north of the centre line between the two middle tracks of the railroad at the easterly end, and seventeen and seventy one-hundredths feet north of the centre line at the westerly end, of the demanded premises, which was the line of the fence as placed by the tenant’s witnesses, and northerly of the line as placed by the demandant and by Wash-burn. The tenant alleged exceptions.</p>

Two actions OP tort, by the administrators of the estates of Frederick W. Granger and of Frederick Murray, for causing their death. The second count of the declaration in each case, which alone need be stated, alleged that the intestates, while in the exercise of due care and not passengers or in the defendant’s employment, were killed at a crossing of the defendant’s railroad through the negligence of the defendant. Answer in each case, a general denial.

<p>Contbact, upon an account annexed, for the expenses of the funeral of the defendant’s testatrix. Writ dated June 18, 1886. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions in substance as follows:</p> <p>Louisa Constantinides, the plaintiff’s wife and the defendant’s testatrix, died on October 28, 1884, possessed of separate estate, all of which she gave to her son, the step-son of the plaintiff, by her will admitted to probate on November 17,1884. The plaintiff had no knowledge of the will until three weeks after her death, before which time he had contracted, and on October 27, 1884, had paid a bill for her necessary funeral expenses, which it was agreed was reasonable. It was not contended that the defendant had, prior to or after his appointment, made any promise of payment.</p> <p>The defendant asked the judge to rule that the plaintiff could not recover, and the judge so ruled, and ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract to recover $629.75, $580 being for stone-work upon the defendant’s lot in Calvary Cemetery, under a written agreement dated September 22, 1884, and signed by the plaintiff and Denis A. Linehan, and $49.75 upon an account annexed, for work done and materials furnished in connection therewith. Writ dated September 2, 1885.

Contjract to recover $5,000 on a certificate of membership in the defendant association issued to Thomas G. Rice.

<p>Tort for personal injuries sustained by the plaintiff while at work upon a preparing machine in the defendants’ mill.</p> <p>At the trial in the Superior Court, before Knowlton, J., it appeared that in the room in which the accident occurred there were ten of these machines, in the management of which five men, including one Casey, were regularly employed, and that the plaintiff, then a boy about fourteen years of age, was on that day regularly at work in the same room, but not on any of these machines.</p> <p>The plaintiff contended, and introduced evidence tending to show, that at the time of the accident there was a usage or custom in the defendants’ mill, permitting the workmen regularly employed in running these preparing machines, when obliged to be temporarily absent therefrom, to call upon other of the defendants’ employees engaged in the same room to look after and run the machines during such temporary absences; and in order to show that he was, at the time of the accident, employed by the defendants to work on this machine, and as the only evidence of such employment testified that, on the day of the accident, shortly before it occurred, Casey went out, and that the plaintiff had a conversation with him as he was about to go, the terms or substance of. which were not put in direct evidence, and that, in consequence of this conversation, he tended Casey’s machine during his absence.</p> <p>The defendants contended, and offered evidence to show, that this custom or usage authorized the operative, under the circumstances mentioned, only to call on workmen regularly employed in running similar machines to attend to and run his machine during his absence ; that the custom did not extend so far as to permit the calling in of any except workmen engaged on similar machines, or so far as to warrant the plaintiff, or any person of his age and inexperience, in attempting to run the machine; that the plaintiff was not required, in the discharge of his duties, to attempt to do so, or to go into close proximity to it; that the accident occurred while the plaintiff was attempting, without right, authority, or direction, and against positive orders, to run the machine; that when Casey left his machine, shortly before the accident, as testified to by the plaintiff, he called one O’Brien, who was employed on a similar machine, and so within the custom; and that, during Casey’s absence, O’Brien was engaged in tending Casey’s machine, together with his own.</p> <p>The defendants called O’Brien as a witness, who, in reply to the question, “ Did you have any talk with Casey at the time, or just preceding the time, that Casey went away from his machine?” was permitted, under objection, to state the conversation between Casey and himself.</p> <p>The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Contract for breach of warranty of soundness in the sale of a horse.

Petition to the Superior Court, alleging that, on May 20, 1887, the respondent recovered judgment against the petitioner in the Municipal Court of the city of Boston for the sum of $69, damages, and $12.88, costs of suit, in an action of contract; that an execution issued on said judgment on May 21, 1887, which was unsatisfied; and praying for a supersedeas, or stay of the execution, and that a review of the action might he granted.

<p>Contract— Construction— Written Agreement.</p> <p>A written agreement by the assignee of a mortgage to pay to his assignor “one half of the amount collected on said mortgage over and above”.or “in excess” of the sum paid by him in cash upon the assignment, must be construed to mean the gross amount so collected, without deducting expenses or disbursements.</p>

<p>Certiorari — Pleading — Betterment — Sewer Assessment— Notice — Ordinance.</p> <p>If a petition for a writ of certiorari to quash an assessment levied by the mayor and aldermen of a city is reserved by a single justice of this court for the consideration of the full court, upon a petition sworn to by the petitioner, and an answer filed by a succeeding board, the averments of the answer are to be taken as true.</p> <p>Under the Pub. Sts. c. 50, § 1, as to the laying and making of common sewers, the mayor and aldermen of a city may order a sewer to be “built” by a joint committee of the city council.</p> <p>Notice need not be given by the mayor and aldermen of a city of their intention to lay out and construct a sewer, and to levy assessments therefor, to a person to be benefited thereby.</p> <p>It is no objection to a sewer assessment that a mayor and aldermen called in another person to assist them in making it.</p> <p>The sewer ordinance of Holyoke of 1875, §§ 2, 5, requiring the superintendent of sewers to keep and submit to the mayor and aldermen an account of the cost of constructing a sewer, and to report a list of the persons benefited, is directory merely; and his failure to do so will not avoid a sewer assessment.</p> <p>Sewer assessments may, as a mode of equitable adjustment, be divided by the mayor and aldermen of a city “into three classes, direct benefit, remote benefit, and more remote benefit.”</p> <p>A notice in writing of a sewer assessment, with a demand of payment, given to a person benefited, by a city treasurer, under an order of the mayor and aldermen directing him to collect it, is sufficient.</p> <p>The petition also alleged that the order of levy applied only to “ abutters,” the petitioner not being such; that the city records did not show the expense of the sewer; that no benefit was derived from the same; that the assessment was not made by the board, which had never made any legal assessment; that other persons similarly situated or abutting on the sewer had not been assessed; and that the time when the proportions of assessments should be paid had not been fixed. The answer of the board alleged that the use of the word “ abutter ” was a clerical error that had been corrected; that the records did disclose such expense; that the question of benefit could not be raised; that the board had made the assessment and that it was legal; that all persons benefited had been assessed; and that such time had been fixed. Held, that the writ ought not to issue.</p>

<p>Petition to tbe judge of probate, by the three sisters of Luther Slater, against his executor and widow, for the construction of the will. The material clauses of the will were the following:</p> <p>“ Item. I devise and bequeath to my beloved wife, Ella S. Slater, the use, income, and improvement of my two dwelling-houses, land, and the appurtenances, situated on the corner of Austin and Temple Streets in that part of Cambridge in said Commonwealth called and known as Cambridgeport. To have and to hold the same to her for and during her natural life. She to keep said dwellings in good repair and insured for a reasonable amount, and to pay all taxes on the same.</p> <p>“ Item. I give and bequeath to my said wife, Ella S. Slater, one half of all the personal estate which I shall possess at the time of my decease. To have and to hold the same to the said Ella S. Slater, her heirs and assigns, to her and their use and behoof forever.</p> <p>“ Item. I devise and bequeath to my three sisters, N. Catharine Emerson, Elizabeth A. Slater, and Mary A. Slater, the reversion or remainder of said dwelling-houses in Cambridgeport, the land, and the appurtenances, and all pi’ofit, income, and advantages that may result therefrom, from and after the decease of my said wife, to them and their use and behoof forever. I also give to my said sisters all the furniture of mine which they may have now in their possession.</p> <p>“ Item. All the rest and residue of my estate, real, personal, or mixed, of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, I give, devise, and bequeath to my said three sisters, H. Catharine Emerson, Elizabeth A. Slater, and Mary A. Slater, as joint tenants, share and share alike; should either of my sisters die before me, then the surviving sisters shall receive the share of the deceased sister, to be divided equally; in case of the death of two of my sisters before my death, then I direct that the surviving sister shall have and receive the whole of the residue of my estate.</p> <p>“ Item. I do nominate and appoint Charles E. Hurlbut of said Worcester to be the executor of this my last will and testament. I hereby request my said executor to beep all my buildings insured for a reasonable amount, and to keep said buildings in proper repair, and I further request my said executor not to sell any of my real estate unless my sisters or the survivors or survivor of my said sisters shall request in writing such sale to be made, and I hereby authorize and empower my said executor, or whoever shall execute this will, if in the performance of the duties of the trust it becomes necessary or expedient to sell any or all of my real estate, and my said sisters, the survivors or survivor of my said sisters, shall so request in writing, then I give to my said executor, or whoever shall execute this will, power and authority to sell any of my real estate at auction or private sale, and to execute and declare good and sufficient deeds to convey the same.</p> <p>“ I hereby devise and desire that my said executor shall have and receive a commission of five per cent on all the rents which he shall collect and receive for the use of my real estate, and shall have the use of the house he now occupies free from rent while he shall act as my executor, which said commission of five per cent and the free use of the house he now occupies shall be' payment in full as executor of this will, and for all his services as executor.</p> <p>“ I further direct my said executor to collect the rents monthly, to pay all taxes upon my said estate, and to reserve from each monthly payment of rent one twelfth of the amount due for taxes, and to pay the balance of the rents, after deducting his commission of five per cent, to the persons who shall be legally entitled to have and receive the same by this will.”</p> <p>The petition alleged that the executor had distributed and paid over all the personal estate in accordance with the will, except certain bonds and papers that were stolen and never came to his hands; that he had filed his third account showing no assets in his hands; that" more than two years had elapsed since his bond was filed; and that the estate had been fully settled, unless by reason of any question arising under the will.</p> <p>The petition also alleged that the executor claimed the right arid duty to continue to act as executor under the will; that his executorship would not expire until the same had been carried out and performed, and the bonds and papers recovered, notwithstanding the distribution of assets; and that he had the right to collect rents and pay taxes, insurance, and repairs upon the house now occupied by him so long as he occupied it, and also taxes, insurance, and repairs upon the real estate devised to the petitioners, and to continue to occupy the house rent free.</p> <p>The petitioners contended that the executor had performed all the duties imposed upon him by the will, and that he had no right to continue to charge commissions or to have his house rent free, and asked the judge of probate to decree that the trust was terminated, and to hear and determine the following questions arising under the will:</p> <p>“ 1. Is the distribution of assets, leaving no balance in the executor’s hands, to be considered a final account and termination of his trust, or is said executor, by reason of said requests, directions, and power to sell, to continue as such for the purpose of complying therewith ? 2. Do said requests, directions, and power impose a trust not terminated by the distribution of the personal estate, or a mere power, the purpose of which was accomplished upon said distribution ? If the former, what is the duration of the trust ? 3. How long, by the terms of the will, has the executor a right to collect the rents and be paid therefor in free house rent and commissions of five per cent? 4. Has the executoi’, if said requests, directions, and power impose a trust continuing after said distribution, the right to deduct and pay taxes, repairs, and insurance upon the house occupied by him rent free from the rents of the real estate devised to the residuary devisees? 5. Does any request, direction, or power conferred by the will impose any such trust as longer to necessitate the continuance of an executor ? and if so, what is that request, direction, or power? 6. Is it the intent of the testator that all the duties of the executor, and his payment for their performance in commissions and house rent, should cease upon distribution of personal assets ? If not, upon the happening of what event or events do they cease ? ”</p> <p>The judge of probate made a decree, that no trust was created by the will of Luther Slater which was not terminated upon the distribution of the personal property, and that the duties of the executor ceased when such distribution was made. From this decree the respondents appealed.</p> <p>The case was heard in this court, before Gardner, J., who made a decree that the will created a trust in the executor which was not terminated upon the distribution of the personal property, and that the duties of the executor did not cease when the distribution was made, but would continue during the life of the widow; and reversed the decree of the judge of probate. The petitioners appealed to the full court.</p>

<p>Contract to recover the value of certain goods, with a count in tort, for the conversion of the same, alleged to be for the same cause of action. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiffs delivered the goods on August 2, 1-884, to the defendant, a common carrier by water between Boston and Norfolk, Virginia, and took from it a bill of lading, which recited the reception of the goods, and stated that they were to be transported “to the wharf of the above-mentioned company at N., and there to be delivered to the order of Chas. H. North & Co., or his assigns, if called for by him or them, as in this contract provided, he or they paying freight and charges thereon, and average, if any.”</p> <p>In the margin of the bill of lading, under the printed words “ Marks and Numbers,” were written the following:</p> <p> </p> <p>Across the face of the bill of lading the following words were written: “ Notify M. E. Skirven, Windsor, N. C.”</p> <p>From Norfolk the usual and only practicable route for merchandise destined for Windsor, North Carolina, was by Lawson’s Express from the wharf of the defendant at Norfolk to the Seaboard Railroad, at Portsmouth, Virginia, thence to Plymouth, North Carolina, and thence by steamer on the river Cashia to Windsor, these several connecting lines being independent of each other. The goods arrived and were landed on the wharf of the defendant at Norfolk, on or about August 4, 1884, and were then delivered by it to Lawson’s Express, with the following instructions only, as contained in his receipt:</p> <p>“ For ord?J M. E. Skirven, Windsor, N. C.” notify</p> <p>Lawson’s Express delivered the goods to the Seaboard Railroad, and gave to it the same instructions. The defendant collected its charge for carrying the goods of Lawson’s Express, which collected that sum and its own charge in addition, of the Seaboard Railroad, on delivery of the goods. The goods arrived safely at Windsor, and were there delivered to Skirven by the last carrier in the line, without requiring him to produce the bill of lading. On or about August 2, 1884, the plaintiffs indorsed the bill of lading in blank, and sent it, attached to the receipted bill for the goods, by the Adams Express Company to Windsor, directing it to present the bill to Skirven for payment, and, upon receiving payment thereof, to deliver to him the receipted bill and the bill of lading. Subsequently, the Adams Express Company returned the receipted bill and the bill of lading to the plaintiffs, and informed them that they had presented the bill to Skirven, who had refused to pay it.</p> <p>The agent of the defendant, who had charge of its business in Boston, testified de bene, under objection, that the defendant had been engaged for many years in carrying merchandise from Boston to Norfolk, including merchandise marked for points beyond Norfolk ; that it was the general custom of the defendant line, and of other steamship lines and railroad companies in Boston and New York, when they received merchandise for transportation marked for points beyond the ends of their lines, to forward the same from the end of their lines by connecting lines to its destination, in all cases where bills of lading or receipts were issued similar to the one in question ; but that, so far as he knew, the plaintiffs had no knowledge of this custom.</p> <p>The evidence for the plaintiffs was, that they had no such knowledge; that this was the only order ever received from Skirven, and that their understanding of the contract was that the goods were to be held at Norfolk until Skirven paid for them, and presented the bill of lading to the defendant, properly indorsed.</p> <p>The defendant requested the judge to instruct the jury that the duty of the defendant was only to transport the goods to Norfolk as a common carrier, and to forward them from that point to Windsor, North Carolina; that if the defendant delivered the goods to the connecting carrier at Norfolk, in good order and condition, with proper instructions in regard to forwarding and delivering the same, it was not liable to the plaintiffs in this action ■, and that upon the evidence the plaintiffs were not entitled to recover. But the judge refused so to instruct the jury, and instructed them that, upon the evidence, the plaintiffs were entitled to a verdict as a matter of law. The jury returned a' verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>Appeal by John M. G. Parker from a decree of the Probate Court appointing guardians for him as an insane person.</p> <p>Trial in this court, upon issues submitted to a jury before Knowlton, J., who allowed a bill of exceptions, which so far as material was as follows :</p> <p>The deposition of one E. T. Shepard, a medical expert in insanity, was offered in evidence for the appellant, to show that the appellant was sane and capable of taking care of himself. The judge ruled that the deposition was inadmissible, on the ground that in the interrogatories filed, and in the commission issued by the clerk of the court to take such deposition, the name was written “ E. S. Shepard.” The appellant then offered to show by the testimony of James H. Carmichael, in whose handwriting the interrogatories were, that the middle initial of Shepard’s name, as written in the interrogatories, was made for a T and not an S, and that it was his habit to write T in that form; but the judge excluded this evidence.</p> <p>The appellant then offered to show that the same deposition was offered in evidence, and read to the jury by the appellant’s counsel, without objection, at the former trial of this case in this court; and contended that, if there was any valid objection to the admissibility of the deposition by reason of any supposed discrepancy in the middle initial of the name of Shepard, such objection should have been made when the deposition was first offered in evidence; and that, as the appellees had not so objected, they must be held to have waived such objection.. The statement by one of tbe appellees’ counsel, that he had not noticed the supposed discrepancy in the name at the former trial, was not controverted by the appellant. The judge ruled that the objection had not been waived, and excluded the evidence.</p> <p>The jury returned a verdict that the appellant was insane; and the appellant alleged exceptions.</p>

Tort for slander in publicly accusing the plaintiff of being a prostitute.

Contract on a bond, bearing date August 13, 1884, to the plaintiff, by the defendant Charles Stebbins as principal, and by the other defendants as sureties, filed and approved on September 1, 1884, and containing the following condition: “ The condition of this obligation is such that whereas the said William Pray, by the consideration of the justice of the First District Court of Eastern Middlesex holden at Malden within the County of Middlesex for civil business on the…

<p>Replevin of three horses by the plaintiffs, as the assignees in insolvency of George W. Davis.</p> <p>At the trial in the Superior Court, before Bacont J., Davis testified that the horses were bought by his order, in May or June, 1886, and were boarded at the stable ,of the defendant, who was a stable-keeper. They were then sold and taken from the stable of the defendant, and afterwards they were repurchased through one Bridges, who brought them back to the stable of the defendant. On cross-examination, he testified that he furnished the money and Bridges transacted the business; that Bridges and himself shared both profits and losses; and that Bridges had no salary or fixed commission, though he denied that there was any partnership between them.</p> <p>The judge instructed the jury: “ The plaintiffs must show that they are either the owners, or part owners, of the property replevied. If you find that the assignees were entitled to the possession of the property by being owners or part owners, they are entitled to the verdict in their favor. If Davis was not owner or part owner, the plaintiffs cannot maintain their action. If the defendant had no title to the property, a part owner would be entitled to maintain replevin. Whether Bridges was a part owner or not in the property has nothing to do with the case, if you find Davis was a part owner. The title of Davis passes to his assignees in insolvency.”</p> <p>The jury found for the plaintiffs; and the defendant alleged exceptions.</p>

Scire pacías against a surety on a bail bond. Writ dated November 12, 1886. At the trial in tbe Superior Court, before Pitman, J., without a jury, the following facts appeared: The plaintiff brought an action against one Mapleson, who, upon his arrest on mesne process, on January 16, 1886, gave the bail bond as principal, with the defendant as surety.

<p>Bill in equity, filed December 6, 1886, against Henry W. Foote, trustee under the will of Eliza A. Dwight, and against Chapman Dwight, her son, to compel the payment of the income of a trust fund, created by the will for the latter’s benefit, to the plaintiff as his assignee.</p> <p>Hearing on the bill, answers, and agreed facts, before 0. Allen, J., who reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>City — Mayor and Aldermen — Sewer.</p> <p>A city is liable, under the Pub. Sts. c. 50, relating to sewers, for the cost of a sewer built by direction of the aldermen with the approval of the mayor.</p> <p>In July, 1883, the board of aldermen of Boston, under the sewer ordinance of 1883, which provides in § 1 for the choice of a superintendent of sewers to "take charge of the building and repairs,” and to make “ all contracts for the supply of labor and materials” of all sewers, under its'direction,passed an order directing the superintendent to construct a sewer in H. Street, and in January, 1884, passed a further order, directing him to act during that year under the orders of its committee on sewers. In August, 1884, the superintendent, acting alone, made a contract for the construction of a portion of the sewer in H. Street. Held, in an action to recover for the cost of that portion, that the order of January, 1884, did not supersede the ordinance or the order of July, 1883, and that the city was liable.</p>

<p>Will — Devise and Legacy — Trust ■— Interest.</p> <p>If a testator by his will gives the income of a legacy to his son and to his son’s wife, and provides that upon their death the legacy is to be paid over by the executor, “ with interest and income to their son R. for his own use and on the decease of the said R., if he dies without children as he is unmarried,” to the residuary legatee, R., who survives his parents, is married, and has children, has an absolute right to the legacy.</p> <p>A beneficiary may authorize his trustee to do what otherwise would be a breach of trust, or release and agree to hold him harmless for such an act after it is done.</p> <p>An executor, after making payments out of a trust fund and depositing the balance with a trust company for the benefit of a life tenant, to all of which the remainder-man agreed, made a further payment out of the fund, without his knowledge or agreement, to secure more frequent payments of income to the life tenant. After the latter’s deatli the remainder-man made a demand upon the executor for the fund, stating that the trust company, which had agreed to repay the fund to the executor within sixty days of proof of the life tenant’s death, was ready to pay it over. Held, that the remainder-man could not recover for the payments assented to by him, but that the executor was liable for the fund as undiminished by the unauthorized payment. Held, also, that interest was recoverable on the latter payment from the life tenant’s death, and on the balance of the fund from the date of the demand.</p>

Bill in equity, filed February 8, 1887, against the surviving trustee under tbe will of Joseph B, Whall, to terminate a trust created by the will, alleging the following facts. Joseph B. Whall died in November, 1858, leaving a widow, the plaintiff, and, as his only heirs at law and next of kin, Joseph H. Whall, a son by a former wife, and Grace H. Whall, a daughter by the plaintiff.

<p>Tort for a nuisance, namely, the ringing of a church bell. At the trial in the Superior Court, before Staples, J., there was evidence tending to prove that the plaintiff, who lived with his father in a thickly settled portion of Provineetown, had received a sun-stroke, and was carried home and a physician called to attend him; that directly opposite his father’s house across a street but twenty feet in width was a Roman Catholic Church, of which the defendant was the clergyman in charge; that one of the incidents of the plaintiff’s illness was that loud noises might throw him into convulsions; that the defendant was informed by the physician and the plaintiff’s father of the probable consequences to the plaintiff of the ringing the bell upon his church, and was requested not to ring it; that the defendant refused to refrain from ringing the bell, but caused it to be rung eight times upon the next Sunday, as usual, twice before each of the four services held upon that day; that the plaintiff, the windows of whose room were shut, was thrown into violent and painful convulsions at each time that the bell on the church was rung, as well as when other bells in the town were rung, or a whistle on a steamboat in the harbor was blown, and once when the town clock struck; and that the convulsions increased the illness and retarded the recovery of the plaintiff.</p> <p>The judge ruled that the plaintiff was not entitled to recover, and ordered a verdict for the defendant; and reported the case for the determination of this court. If the ruling was wrong, the verdict was to be set aside and a new trial granted; otherwise, judgment was to be rendered on the verdict.</p>

<p>Bill in equity, filed October 11, 1884, to establish trusts for the benefit of the plaintiff .under the wills of her grandfather, William Paine, and of her father, Frederick William Paine.</p> <p>The case was heard by Meld, J., and reserved for the consideration of the full court, on the pleadings and an agreed statement of facts, and was in substance as follows.</p> <p>William Paine died in 1833, leaving a will, whereby he devised the residue of his property as follows :</p> <p>“ Fourth. As to the residue of my property, it is my desire that the same should be secured for the benefit of my grandchildren, the children of my son, Frederick William Paine, reserving the use of the personal property and the net income of the real estate to Ann C. Paine, wife of said Frederick, during her life and widowhood, upon the contingency of her surviving her said husband; and to this end I give, devise, and bequeath all my estate, real, personal, or mixed, and wherever the same may be found, not before disposed of in this will, to my son, Frederick William Paine, and his heirs forever. To have, hold, and possess the same to him and them upon the trusts and to the uses hereinafter mentioned, and to no other use, trust, or purpose whatever; that is to say, the said Frederick shall annually receive the rents, interest, and profits of said estates, and, after deducting the necessary expenses for repairs, taxes, and other charges in and about the same, shall retain the balance in his own hands, to be applied by him at his discretion for the support, maintenance, and education of the children of the said Frederick and his present wife, Ann C. Paine, including the children now born as well as such as may at any time hereafter be born to them, either before or subsequent to my decease. And in the event of the decease of my said son, his said wife, so long as she shall survive him and continue his widow, shall in like manner receive the said rents, interest, and profits to her own use and for the education and support of my said grandchildren at her discretion. Upon the event of the demise of my said son, I direct that the judge of probate for said county of Worcester shall appoint one or more trustees to take upon him or them the execution of these trusts, who shall stand seised of said estates in the same manner as I have directed in case of my son Frederick during his lifetime, and as fully as if they were personally named in this will. And the said trustee or trustees so appointed shall hold said estates to the following trusts ; that is to say, to pay over the balance of said trust funds to Ann C. Paine, my daughter-in-law before named, during her life or widowhood, and upon the event of her contracting a second marriage, then it is my will that said trustee or trustees shall stand seised of said real estates and hold and possess said personal property to the use of my said grandchildren, the children of Frederick William and Ann C. Paine, during their minority, and whenever either of said children shall arrive at full age, said trust, as it relates to him or her respectively, shall cease and determine, and said child shall stand seised in fee simple of his or her share in said real estate and personal estate, in the same manner as if it had been bequeathed to him or her without the intervention of trustees. Provided, however, that said trust shall not determine during the lifetime of my said son, nor until the death or second marriage of the said Ann 0. Paine. Upon the termination of said trust, said property shall he equally divided between such of said grandchildren as may then be alive, and if either of them shall decease before a division of said property, leaving lawful issue, the issue of such deceased grandchild shall be entitled to the same share in the distribution as his or her ancestor would had they been living.</p> <p>“ In case my son should not accept the trust hereby vested in him, or in case of his subsequent resignation of the same, or in case of a vacancy in the trust at any time, then one or more trustees shall be appointed by the judge of probate, the Court of Chancery, or other proper tribunal, in manner as is hereinbefore directed. And the said trustee or trustees so appointed shall stand seised of said estates and personal property to the uses herein specified. Provided, however, that no trustee shall be appointed during the lifetime of my said son without his consent.</p> <p>“ The trustees herein provided for shall in all cases render an inventory of said estates and funds from time to time, as they may be ordered by the proper tribunal, and shall give satisfactory bonds for the faithful execution of said trusts. Provided that no other security shall be required of my said son, while in the execution of said trust, but his own personal bond. Any other trustee shall pay over the net proceeds of said estates, real and personal, to the joint order of my said son and his said wife during their lives, and to the order of the survivor of them during life, or during the widowhood of the said Ann C. Paine, to be by them appropriated as is before provided. It is my further direction, that my said son or his wife shall never be held to account for the rent, income, or use of such parts of my property or chattels as they shall personally occupy, and such personal occupation shall not be construed to impair this trust.</p> <p>“ My trustees, whether appointed by me or by any proper tribunal, shall have power to sell and pass deeds of any part of my real estate (excepting the home farm and every part thereof), either in fee simple, absolute, or upon mortgage or any less estates, and for the proceeds of any such conveyances they shall render an account as is before provided, and the same shall be applied solely for the improvement of said estates, or for the education and maintenance of my said grandchildren.”</p> <p>Frederick William Paine held the position of trustee under this will, from 1833 to September, 1869, when he died, and the defendant, Nathaniel Paine, was appointed trustee in his stead on November 16, 1869, and has so continued ever since. Nathaniel Paine proceeded to convert the greater part of the home farm so called into money by sales under a decree of the Probate Court, and established from the proceeds a trust fund, which, as increased by other sales from time to time, he invested in income-yielding securities. The income upon these securities, and the rents and profits of real estate remaining unsold, were paid over by the trustee, after deducting expenses and charges, to the defendant Ann C. Paine, without seeing to its application by her in any part for the support of the plaintiff, who is a child of Ann C. Paine and Frederick William Paine, and grandchild of William Paine, or that any part of the same was paid to her or accumulated for her use and benefit. Ann C. Paine invested the income, rents, and profits, including all accumulations not consumed by her in her own support, or in the support of her children other than the plaintiff, in various ways, and on or before May 1, 1884, gave large sums, as well as the mansion-house on the home farm purchased by her, to the defendant George S. Paine as voluntary gifts, and gave to the defendants George S. Paine and James P. Paine all of the accumulations of income, rents, and profits. The plaintiff has received no part of the income of the trust fund or rents and profits, and has, under the belief that she was entitled to a vested share and interest therein, allowed the same to accumulate for her future use and benefit.</p> <p>Nathaniel Paine contended that, upon paying the income of the proceeds of the sales of the homestead farm and such rents and profits to Ann C. Paine, his powers and duties, as trustee under the will, regarding the income and rents and profits, ceased; and the defendant Ann C. Paine contended that by the terms of the will she became the absolute, sole, and exclusive owner of such income and rents and profits, with the right to dispose of the same to George S. Paine and James P. Paine, to the exclusion of the plaintiff and the children of deceased grandchildren of the testator, both before and after its accumulation and investment; that the gifts of accumulated income and rents and profits to George S. Paine and James P. Paine, not consumed in her personal support, or necessary for their personal support and maintenance, were made by her as of right, and that the plaintiff had no right, title, or interest in any part of the income derived from the proceeds of the sales of land of the homestead farm, or rents and profits, by reason of any devise, bequest, or trust in the will.</p> <p>The plaintiff contended that, by the terms of the will, she had a vested right and interest in the income of the proceeds of sales of land of the homestead farm, and in the other rents and profits, and in all accumulations thereof; that she had a right to allow the same to accumulate for her future use and benefit, and was not thereby deprived of her right to the same; that both the trustee and Ann C. Paine were bound tt> see that the income, rents, and profits were applied or accumulated for her use and benefit, in common with the application and accumulation thereof for the use and benefit of Ann 0. Paine and the other grandchildren of the testator; that the conveyances of the accumulated income and rents and profits by Ann C. Paine were in violation of her rights thereto under the will, and against the intention of the testator; and that the trustee, Ann G. Paine, George S. Paine, and James P. Paine, were bound to account to her for her share of such accumulated income and rents and profits.</p> <p>On November 16, 1869, Frederick William Paine died, leaving a will. After directing his debts and funeral expenses to be paid, he devised the residue of his property as follows: “ Fourthly. I give to my wife, Ann C. Paine, all the rest of my estate, whatever the same may be, to be at her sole use and disposal. My said wife is fully acquainted with my reasons for this disposal of my estate, and will by her own last testament do what is right and just to my children and their natural heirs.” On the settlement of his estate, the residue in money was paid over to Ann G. Paine.</p> <p>Ann C. Paine invested the money received by her on the settlement of her husband’s estate in securities, all of which she assigned to George S. Paine and James P. Paine as gifts, and conveyed to them all of the real estate and other property received by her from that estate as their absolute property, to the exclusion of the plaintiff and the children of deceased children of Frederick William Paine, and retained no property in her hands or possession to be disposed of by will.</p> <p>Ann 0. Paine, George S. Paine, and James P, Paine contended that the will of Frederick William Paine vested Ann C. Paine with an absolute title, and the right to dispose of the same by deed and gift during her lifetime, to the exclusion of the plaintiff, and that the conveyances by her were valid under the will.</p> <p>The plaintiff contended that Ann C. Paine had only the use of the property, and not the absolute title to it, and could dispose of the same by will only to her children and their natural heirs, and that her conveyances and gifts to George S. Paine and James P. Paine, in exclusion of the other children of the testator, were in violation of the intention of the testator as expressed in the will.</p> <p>If the court were of opinion that the plaintiff had any title and interest in the income of the proceeds of the sales of the homestead farm under and as devised or bequeathed by the will of William Paine, or in the rents and profits of his unsold real estate, or any title or interest in the estate of Frederick William Paine under his will, the case was to be referred to a master to state the account thereof; otherwise, the bill was to be dismissed.</p>

<p>Bill in equity, by the administrator and various creditors of Ruth Holbrook, against the sole heir of Joel Holbrook, and her guardian, to reach and apply to the payment of their claims certain real estate conveyed to Joel Holbrook upon his giving a bond conditioned to provide “ all things necessary ” for the “ convenience, comfort, and necessity ” of Ruth Holbrook so long as she might live. The defendant demurred to the bill for want of equity. At the hearing in the Superior Court the demurrer was sustained and the bill dismissed; and the plaintiffs appealed to this court. The facts appear in the opinion.</p>

<p>Two BILLS IN EQUITY, under the Pub. Sts. c. 161, § 1, cl. 11, to reach and apply, in payment of debts due to the plaintiffs from Joseph D. Brown, his interest in'the residue of . the estate of his wife, Lucy R. Brown. The bills alleged the following facts.</p> <p>The plaintiff in the first case recovered judgment against Joseph D. Brown, on October 17, 1884, for the sum of $545.89, damages and costs, no part of which had been paid; and the plaintiff in the second case recovered judgment against him on June 26, 1882, for $160.45, damages and costs, of which only $8.72 had been paid.</p> <p>Lucy R. Brown, who was seised of real estate in this Commonwealth “ of the value of $10,000 and other real and personal property of a value to the plaintiffs unknown,” died on March 24, 1886, leaving a will, which was duly admitted to probate, and which, with the exception of parts merely formal, was as follows:</p> <p>“ I give to my daughters Lucy R. Vialle and Elizabeth Worthley $1,000 each. I give to my son Joseph D. Brown, Jr., one hundred dollars. It is my desire that my husband should have his support out of my property during his life ; therefore all the rest residue, and remainder of my estate both real and personal, after the payment of my just debts, funeral charges, and the legacies before named, which are to be paid within six months after my decease, I give and devise to my daughters Abby Brown and Mary Brown, and their heirs and assigns forever, subject to the condition that they support their father during his life. I hereby nominate my son Joseph D. Brown, Jr., to be the executor of this my last will and testament; as witness my hand and seal this 12th day of June, A.D. 1883.”</p> <p>Abby Brown and Mary Brown “ accepted the above recited devise and bequest of Lucy R. Brown,” and “ Joseph D. Brown, under and by virtue of the said will, became entitled to a property right, title, or interest, legal or equitable, in the property and estate of said Lucy R. Brown, which cannot be come at to be attached or taken on execution in a suit at law against said judgment debtor.”</p> <p>The prayer of each bill was that Abby Brown and Mary Brown might be restrained from alienating the interest of Joseph D. Brown; that they might be ordered to pay to the plaintiffs sums equivalent to his support during his lifetime and until the debts were paid; and for general relief.</p> <p>The defendants, Joseph D. Brown, Abby Brown, and Mary Brown, demurred to the bills for want of equity, and on the ground that Joseph D. Brown had no interest in his wife’s estate that could be applied to the payment of the plaintiffs’ debts; and the remaining defendant, Joseph D. Brown, Jr., demurred to the bills for want of equity, and because he was not a proper party. At the hearing before a single justice, the demurrers were sustained and the bills dismissed; and the plaintiffs appealed to the full court.</p>

<p>Will — Annuity — Capital and Income — Executor — Probate Court — Appeal — Master.</p> <p>A testator gave to his wife an annuity of $400, “ if the income of my estate not herein bequeathed to her or to the payment of said debts and funeral expenses shall amount to that sum,” and left her the use of “ the house in which we now live ” for life, but requested his executor to furnish her with a suitable house elsewhere if she desired. The widow continued to live in the house, and the executor deducted from the gross income, applicable to the payment of the annuity, the amount paid out for repairs, taxes, water rates, insurance, and interest on a mortgage on the house. Held, on an appeal from a decree of the Probate Court allowing the executor’s account, that the annuity was to be paid out of net income, and that the deductions were rightly made.</p> <p>General expenses of administration incurred for the benefit of the whole estate are chargeable to capital, and not to income.</p> <p>If a master on such an appeal declines to revise the compensation allowed to the executor, his report will be recommitted if the appellant so desires.</p> <p>A stable in the rear of the house occupied by the testator, which was used by him in connection with it, was let by the executor, and the widow claimed the rent. The master did not set forth very clearly the connection between the house and the stable, nor whether he excluded the claim because the words “house in which we now live” could not include a stable, or on a finding that it was not so connected with the house as to pass with it. Held, that the testator’s use did not necessarily establish that the quoted words included the stable, and that it could not be said that the master was wrong.</p>

Contract upon a promissory note purporting to be signed by the defendant.

Tort by the administratrix of the estate of Daniel Maguire, for causing his death in the elevator of the Hoosac Tunnel Dock and Elevator Company, in Charlestown.

Bill in equity, under the Pub. Sts. c. 157, § 15, to vacate proceedings in insolvency instituted against the plaintiff upon the petition of the defendant.

Bill of interpleader against Catherine Callahan and Hannah Keefe, to determine to whom a sum due upon the death of a member of a beneficiary association should be paid. Hearing before Devens, J., who reported the case for the consideration of the full court. The facts appear in the opinion.

Bill in equity, filed September 19, 1887, against the trustees under the will of Joshua Sears, to terminate a trust created for the benefit of the plaintiff in the residue of his estate. The bill alleged the following facts.

<p>Lease — Covenant to Insure — Forfeiture — Equitable Relief.</p> <p>Equity will relieve against a forfeiture incurred by the breach of a covenant to insure in a lease of real estate, caused by accident or mistake, if no actual damage has been sustained by the lessor.</p> <p>A lease of real estate contained a covenant that the lessee should keep the buildings “ properly and fully insured, at all times during said term, in safe offices to be approved” by the lessor, to whom the insurance money was to be payable, and also contained the usual condition for re-entry on breach of any of the covenants without notice or demand. The lessee, a woman, at the expiration of policies which were satisfactory to the lessor, intending in good faith to have them renewed in the same amounts and form, took out through an insurance broker new policies, which, without her knowledge, were made payable to a mortgagee. The lessor, who had sustained no actual damage, without any demand upon the lessee, or any notice that the insurance was unsatisfactory, made an entry for an alleged breach of covenant, and thereafter refused to consult with the lessee as to changing the form of the policies. Held, that equity would relieve against such a breach of the covenant as was made by the lessee.</p>

<p>Three Petitions for writs of certiorari to quash the proceedings of the county commissioners of Middlesex in abating taxes assessed upon certain corporations by the city of Lowell.</p> <p>In the etrst CASE the petition alleged in substance that the assessors of the city of Lowell, on May 1, 1886, duly assessed a tax upon the Merrimack Manufacturing Company, a corporation having its usual place of business in that city; that the corporation did not file with the assessors a list of its estate liable to taxation in the city for that year, duly subscribed and sworn to by it, within the time specified by the assessors for bringing in such lists; that the tax commissioner of the Commonwealth determined the value of the real estate and machinery of the corporation taxable in the city for the year 1886 at a less value than that determined by the assessors, and gave it notice thereof on September 27, 1886; that the corporation applied in writing, in pursuance of the notice from the tax commissioner, on October 19, 1886, to the assessors for an abatement of its tax; that on October 28, 1886, the corporation filed with the assessors a list of all its real estate and machinery liable to taxation in the city for that year, and made oath thereto, and at the same time a hearing was had before the assessors upon its application; that the assessors on November 16, 1886, refused to abate the tax, of which they gave notice to the corporation on December 8, 1886 ; that the corporation made a complaint to the county commissioners of Middlesex for a reduction of the valuation by the assessors of all its real estate and machinery, and for an abatement of the tax, and filed the same with the clerk of the commissioners on December 17,1886 ; that notice of the complaint was duly given, and the petitioner appeared before the commissioners at the hearing thereon; that the commissioners found that the corporation did not file with the assessors a list of its estate liable to taxation in the city for the year 1886, subscribed and sworn to, within the time specified by the assessors in their notice for bringing in such lists; that the commissioners also found that there was no good cause why such list was not seasonably brought in or filed by the corporation; and that thereupon the petitioner moved that the complaint be dismissed, on the ground that no such list had been brought in or filed by the corporation with the assessors within the time specified by them, and no good cause had been shown why such list had not been seasonably brought in or filed; but the commissioners overruled the motion, and ruled that they had jurisdiction in the premises, and legal right and authority to hear and determine the matter of the complaint, upon the ground that the tax commissioner had placed a lower value than the assessors upon the property of the corporation, and so notified the corporation, and ordered the hearing to proceed.</p> <p>The petition also alleged that the assessors valued all the machinery and real estate of the corporation in various lots ; that at the hearing before the commissioners, and before any evidence was offered, the corporation filed an amendment to its complaint, which set forth that four lots only, covering its cotton and print yards, so called, were overrated, and that “ your petitioner will not contend at this hearing as to the assessment of its other property by said assessors ”; and that the amendment was allowed by the commissioners, against the objection of the petitioner that they had no right or authority to allow the same, and that it was too late so to do.</p> <p>The petition further alleged, that the corporation, at the hearing before the commissioners, called as a witness Charles H. Dalton, who then was and had been the treasurer of the corporation since October, 1877, and previously thereto for more than twenty years had been treasurer and manager of similar corporations, but had not bought or sold any land for manufacturing purposes in Lowell; and that he was permitted to testify, against the objection of the petitioner on the ground that it was incompetent and irrelevant, as to the number of shares of stock in the corporation held by trustees, guardians, charitable institutions, corporations, and individuals, as to what was the market value of the stock on or just before May 1, 1886, and as to what the corporation’s land in its cotton and print yards was worth for manufacturing purposes.</p> <p>' The petition further alleged, that the petitioner offered to show by competent evidence the fair cash value of all the real estate and machinery of the corporation on May 1, 1886, but the evidence, against the objection of the petitioner, was excluded by the commissioners; that the commissioners ruled that, under the amendment to the complaint, they were limited in their inquiry and determination to the fair cash value of the property specified in the amendment, but that they would hear the evidence as bearing upon the value of the property in the cotton and print yards; that the commissioners also ruled that, as matter of law, they could not determine the true value of all the real estate and machinery on that day ;■ that the commissioners further ruled that the inquiry before them was not to determine the true value of all the real estate and machinery, or to determine between the valuations thereof made by the tax commissioner and the assessors, but only the value of the items of property of the valuation of which the petitioner complained; that the commissioners further ruled that the petitioner was bound by the valuation by the assessors of all property not included in the amendment to the complaint; and that the commissioners, upon evidence of the fair cash value of the real estate and machinery specified in the amendment to the complaint, abated a certain portion of the tax.</p> <p>The petition averred that the commissioners erred in making the abatement, for the following reasons : “ 1. In that they overruled the motion of said petitioner to dismiss said petition. 2. In that they ruled that, notwithstanding no list had been brought in as aforesaid, and no good cause had been shown why the same had not been seasonably brought In or filed, they had jurisdiction in the premises, and legal right and authority to hear and determine the matter of said petition. 3. In that they allowed said amendment to said complaint. 4. In that they admitted the evidence aforesaid of Charles H. Dalton. 5. In that they excluded the evidence of said city to show the fair cash value of all said real estate and machinery on May 1, 1886, except for the purposes aforesaid. 6. In that they ruled, as matter of law, that they could not hear evidence or determine the true value of all said real estate and machinery on May 1, 1886. 7. In that they ruled that the inquiry before them was not to determine the true value of all said real estate and machinery on May 1,1886, or to determine between the valuation made by said tax commissioner of all said real estate and machinery, and the valuation of the same made by said assessors. 8. In that they did not find and determine the value of all said real estate and machinery. 9. In that they, without hearing evidence as to the true value of all said real estate and machinery, undertook to find its true value. 10. In that they entertained jurisdiction of said company’s petition filed as. aforesaid. 11. In that they abated a portion of the tax on said machinery. 12. In that they abated any portion of the tax.”</p> <p>In the second case, the petition was substantially like that in the first case, except that it alleged that the Boott Cotton Mills, which was the corporation assessed, brought in to the assessors a list of all its estate liable to taxation in 1886 within the time specified by the assessors; and that, at the hearing before the commissioners on its complaint for. an abatement of the tax and an amendment thereto, the corporation called as a witness Charles J. Goodwin, agent of the Indian Orchard Cotton Mills, who, after testifying that he had been agent of these mills since 1868, and had been engaged in cotton manufacturing in New Hampshire for thirty years prior thereto, and had not examined the land of the corporation, was permitted to testify, against the objection of the petitioner that the same was incompetent, that he thought that twenty cents a foot would be the outside price of land in Massachusetts for manufacturing purposes.</p> <p>In the third case, the petition was substantially like that in the first case, except that the Tremont and Suffolk Mills, which was the corporation assessed, at the hearing before the commissioners on its complaint for an abatement of the tax and an amendment thereto, called as a witness Henry F. Coe, formerly agent of the Washington Mills of Lawrence, who, after testifying that he had had to do with the purchase of mills with water power in Lawrence and in Vermont, was permitted to testify, against the objection of the petitioner that it was incompetent, what mill water power was worth in Lawrence.</p> <p>An answer filed to the petition in each case by the commissioners alleged “ that the facts and rulings therein set forth are correctly stated, and that the copies thereto annexed are true copies of the originals, and that no error appears upon their record, and that said petition does not set forth any legal cause for granting the prayer thereof.” Hearing upon the petitions and answers before Hevens, J., who reserved the cases for the consideration of the full court.</p>

<p>Partnership —• Dissolution — Bankruptcy of a Partner —• Notice — Evidence — Pleading — Insolvent Debtor — Composition with Creditors ■— Constitutional Law — Election — Waiver.</p> <p>The bankruptcy of a partner after a firm has dissolved is as effective notice of the dissolution to a creditor as if it had been caused by the bankruptcy.</p> <p>Evidence of such bankruptcy to prove such notice is admissible in an action by the creditor against the partner, though not set up in the answer.</p> <p>A creditor whose debt accrued before the passage of the St. of 1884, c. 236, as amended by the St. of 1885, e. 353, providing for compositions with creditors in insolvency, by accepting the benefit of such a composition, waives his right to object that those statutes are void as to his debt as impairing the obligation of contracts.</p>

<p>Practice — Report — Savings Bank — Deposit in Trust — Gift — Evidence.</p> <p>Upon the report of a ease for the determination of this court, whether a judge who tried the case without a jury was warranted in making a finding, the only question is whether there was any evidence to sustain the finding, not whether the evidence is worthy of belief.</p> <p>Evidence that a savings bank depositor “in trust,” who kep.t the deposit-book, shortly before his death told the person named as beneficiary that the deposit “Iput in for you” in the savings bank, “that money is yours,” will justify a finding that there was a perfected gift to that person.</p>

<p>Bill in equity, filed January 14, 1887, by George White, trustee under the will of Henry Robinson, against Rosalba C. Stanfield, Anna E. Robinson, Dora Hidell, and Clifford Brigham, administrator of the estate of Edward Gray Robinson, for instructions as to the disposition of a trust fund.</p> <p>The bill alleged that Henry Robinson made a will, dated October 14, 1848, which was, with the exception of parts merely formal, as follows :</p> <p>“ I give to my wife Isabella Robinson all my wearing apparel household furniture horses, carriages, plate, watches, and jewelry, and also my library.</p> <p>“ I give to my son Edward Gray Robinson, my farm in the State of Michigan, to have and to hold the same to him his heirs and assigns to his and their use in fee simple.</p> <p>“I give to my daughter, Mrs. Rosalba Cecilia Stanfield the sum of fifteen thousand dollars, and if her husband Mr. M. M. Stanfield shall at my decease be indebted to me by note or otherwise either solely or jointly with others, then this bequest shall be applied to the payment of any such indebtment of said M. M. Stanfield.</p> <p>“ I give to William W. Stone and Thomas Lamb, both of said Boston, the sum of fifty thousand dollars to be held by them in trust for the benefit of my said wife during her natural life. They shall invest the same in United States six per cent stock payable in eighteen hundred and sixty-eight if the same can be done on reasonable terms, if it cannot, then in such other manner as they shall judge safe and judicious, and they shall pay the net income of said fund, to my said wife in equal quarter-yearly payments during her natural life for her sole separate and individual use, and upon her decease the principal of said fund shall be disposed of as part of the residue of my estate. The provision which I have herein made for my said wife shall be in lieu and in full satisfaction of her right or claim to dower or thirds from or out of my estate.</p> <p>“I give to the said Stone and Lamb the further sum of twenty thousand dollars to be held by them in trust for the benefit of my adopted daughter Rosalia Peale (the daughter of the late Rembrandt Peale) during her natural life. They shall invest the same in such manner as they shall judge safe and judicious, and shall pay the net income, of said fund to said Rosalia, in equal quarter-yearly payments during her natural life for her sole separate and individual use, free from the control or interference of any husban.d with whom she may at any time intermarry, and such payments shall be made only on her own individual receipts or orders, executed on or after the days when they shall respectively become payable and upon her decease the principal of said trust fund shall be disposed of as part of the residue of my estate.</p> <p>“ I give to the said Stone and Lamb the further sum of ten thousand dollars, to be held by them in trust for the benefit of my said daughter' Rosalba Cecilia Stanfield during her natural life. They shall invest the same in such manner as they shall judge safe and judicious, and shall pay over to her the net income of said fund in equal quarter-yearly payments daring her natural life, for her sole separate and individual use, free from the control or interference of her present husband or any husband with whom she may at any time hereafter intermarry, and such payments shall be made only on her own individual receipts or orders, executed on or after the days when they shall respectively become payable; and upon her decease the said trustees shall pay over and distribute the principal of said trust fund to and among her lawful issue the lawful issue of any deceased child of my said daughter taking their parent’s share. But if my said daughter shall leave no lawful issue living at the time of her death, then the said trustees shall pay over and distribute the principal of said trust fund to and among her heirs at law.</p> <p>“ I give to the said Stone and Lamb the further sum of fifteen thousand dollars, to be held by them in trust for the benefit of my three grandsons Henry Hugh and George the sons of the said Rosalba Cecilia Stanfield. The said trustees shall invest the same in such manner as they shall judge safe and judicious and they shall expend the net income of the said fund quarter-yearly for the maintenance and education of my said grandchildren until they shall respectively attain the full age of twenty-one years, and as each one attains that age they shall make over to him one equal third part in value of the principal of said fund, but if either of them shall die under that age his share shall go in equal parts to the survivors or the whole to the survivor if only one shall live to reach that age, such additional share or shares not to be paid to him or them until he or they respectively shall reach the said age of twenty-one years, provided however that if my said daughter should have other children born to her they shall have the benefit, in equal proportions among themselves, of the share or shares, of any one or more of my said three grandsons who may die under the age of twenty-one years in the same manner that such deceased grandson or grandsons would have if living, but if only one of my said three grandsons should live to become twenty-one years of age, and only one after-born child of my said daughter should live to reach that age, then the principal of said trust fund shall be divided between them equally, their respective shares to be paid them when they become twenty-one years of age. But if no child of my said daughter shall live to become twenty-one years of age, then the principal of said fund shall be disposed of as part of the residue of my estate.</p> <p>“ I give to my nephew John Henry Towne of Philadelphia the sum of twenty thousand dollars to be held by him in trust for the benefit of my son Charles Robinson during his natural life, tie shall invest the same in such mann'er as he shall judge safe and judicious, and shall pay over the net income of said trust fund to my said son Charles in equal quarter-yearly payments during his natural life, and the principal of said fund upon his decease to his heirs at law.</p> <p>“ I give to said John Henry Towne the further sum of ten thousand dollars to be held by him in trust for the benefit of my son'William Gwynn Robinson during his natural life. He shall invest the same in such manner as he shall judge safe and judicious, and shall pay over the net income of said trust fund to my said son William Gwynn in equal quarter-yearly payments during his natural life, and the principal of said fund upon his decease to his heirs at law.</p> <p>“ I give to said John Henry Towne the further sum of ten thousand dollars to be held by him in trust for the benefit of my son Edward Gray Robinson aforenamed during his natural life. He shall invest the same in such manner as he shall judge safe and judicious and shall pay over the net income thereof to my said son Edward Gray in equal quarter-yearly payments during his natural life, and the principal of said fund on his decease to his heirs at law.</p> <p>“ I give to the parties who may be entitled to the income of the several trust funds aforesaid, to each of them a sum equal to one quarter-year’s interest in advance on their respective funds, said sums to be paid to them as soon as may be after my decease, with interest on said sums from the day of my death until paid. It is also my intention that the said parties shall receive full interest on the amounts of their respective funds at the expiration of each quarter after my decease, and therefore until the aforenamed trustees shall have received from my executors the full amounts which they will be entitled to claim for the establishment of the said several funds, I direct my executors at the expiration of every three months after my decease to pay to each of the said parties any deficiency there may be in the income of their respective funds to make up full interest on the respective sums which I have directed shall be invested for their benefit.</p> <p>“ I also give to the aforenamed Stone and Lamb the further sum of twenty-five thousand dollars, to be held by them in trust for the benefit of my brother, Mr. John Robinson, and my sister Mrs. Hannah Ganott, both of Coventry, England, during their joint lives. The said trustees shall invest the said sum in such manner as they shall judge safe and judicious, and during the joint lives of my said brother and sister they shall pay over to my said brother two thirds of the net income of said trust fund, and to my said sister one third part of said net income, in equal half-yearly payments, and upon the decease of my said brother two thirds of the principal of said trust fund, and upon the decease of my said sister one third part of the said principal shall be disposed of as part of the residue of my estate, and upon the decease of either of them the remaining two thirds or one third part of the same trust fund, as the case may be, shall continue to be held in trust by the said trustees, and the net income thereof shall be paid to the survivor of my said brother and sister, during his or her natural life. All sums to be so paid to my said sister are to be for her sole separate and individual use free from the control or interference of her present husband or any husband with whom she may hereafter intermarry, and shall be paid only on her individual receipt or orders, executed on or after the days when the several sums to be paid her shall become severally due and payable.</p> <p>“It is my will that neither of the said trustees shall be required to give bond for the faithful discharge of the duties of the said trusts or either of them. They shall have authority from time to time to change the mode of investment of the several trust funds committed to them respectively as they shall judge judicious, they shall not either of them be accountable for any loss, or diminution in value, which may happen or accrue to either of the said funds by reason of any error of judgment on their part. The said Stone or Lamb' shall neither of them be accountable for the acts or doings of the other, and each of the said trustees shall be accountable only for his own actual receipts, and his own wilful defaults.</p> <p>“ All the rest, residue, and remainder of the property and estate of which I may die seised or possessed, including the reversions of the several trust funds aforesaid, which I have directed shall be disposed of as part of the residue of my estate, I give, devise, and bequeath to my son, George Mosher Robinson, to have and to hold the same to him, his heirs, executors administrators and assigns to his and their use and behoof forever, provided however, and it is hereby declared that this bequest is contingent as to the several reversions of the said trust funds and as to each of the said reversions, the same shall not vest in the said George unless he shall survive the party or parties upon whose decease the said reversion shall fall into the residue of my estate, and if the said George shall not be living when any one or more of the said reversions shall fall in, then I give and bequeath such reversion or reversions to the lawful issue of said George, who may be then living, the lawful issue then living of any deceased child of the said George taking their parent’s share. But if neither my said son George nor any lawful issue of said George shall be living at the time of the falling in as aforesaid of any one or more of the said reversions, then from the amount of such reversions, I give the sum of ten thousand dollars to my adopted daughter the aforenamed Rosalia Peale, the sum of ten thousand dollars to my nephew Henry Robinson of Glasgow Scotland, son of my brother John Robinson aforenamed. The sum of ten thousand dollars to my said wife Isabella Robinson, and the sum of ten thousand dollars to each of my three grandchildren, Henry, Hugh and George sons of my aforenamed daughter Rosalba Cecilia Stan-field, making in the whole, the sum of sixty thousand dollars thus charged upon the said reversions in case of the death of my said son George and failure of his issue as aforesaid, and if there shall afterwards be any surplus, remaining of said reversions, or either of them, I give the same to my nephew the aforenamed John Henry Towne. But if there shall not be a sum sufficient to pay said six bequests in full of ten thousand dollars each, then they shall be abated equally, and in case any one or more of the said seven legatees shall die before the happening of the contingencies which would entitle them to receive the said sums so bequeathed to them, then it is my will, that his, her, or their legal representatives whether legatees or heirs at law shall stand in his, her, or their stead in all respects and be entitled to demand and receive the said several sums in the same manner that he she or they would if living and if by reason of depreciation in value or from any other cause, there shall not be realized from my estate, an amount sufficient to pay in full the legacies herein given and to establish in full the several trust funds which I have directed shall be created, and leave besides a surplus of ten thousand dollars, for my son George Mosher Robinson as residuary legatee, then and in such case, a ratable abatement shall be made from the said several trust funds, except the fund for the benefit of my wife, (which is at all events to be made up to the full amount of fifty thousand dollars,) to such extent as may be needful to secure to my said son George as residuary legatee the full sum of ten thousand dollars. And if such abatement shall be made, from the said trust funds, then upon the death of my said wife and my said adopted daughter, Rosalia Peale, or either of them, the principal of their respective trust funds shall be appropriated as far as need be to make up and restore to the several funds so reduced the amounts so abated, from them respectively with interest thereon from the time of my death, before the said principal of said funds, or either of them, or any part of the same shall be paid to the person or persons who may then under the foregoing provisions be entitled to receive the same.”</p> <p>The bill also alleged, that this will was duly admitted to probate on November 27, 1848 ; that John Henry Towne was duly appointed trustee under the will on December 17, 1849 ; that as trustee he received the sum of $10,000 in shares of stock and cash from the executor of the will, and invested it in personal securities, paying the income thereof to Edward Gray Robinson as directed by the will; that Towne died in April, 1875, and the plaintiff was on January 10, 1876, duly appointed trustee under the will; that the plaintiff as such trustee received from the executor of Towne the capital of the trust fund in personal securities and cash; that he had invested it in mortgages, and it amounted to the sum of $11,420.25, the income of which had been paid to Edward Gray Robinson each year during his life, the last payment having been made to him on July 1, 1886; that Edward Gray Robinson died on October 16,1886, leaving a widow, Anna E. Robinson, a sister, Rosalba C. Stanfield, and a niece, Dora Hidell; that Clifford Brigham had been appointed administrator of the estate of Edward Gray Robinson; and that these were the only persons who claimed to be heirs or legal representatives of Edward Gray Robinson, or entitled to receive the fund.</p> <p>The bill further alleged, that Brigham, as administrator, claimed the whole of the trust fund, both principal and interest; that the wife claimed the whole of the trust fund, except the income accruing between July 1 and October 16,1886; and that the sister and the niece each claimed one half of the fund, except the income accruing between the same dates.</p> <p>The prayer of the bill was that the plaintiff might be instructed as to what parts of the fund, if any, the defendants were entitled.</p> <p>The answer of the defendant Brigham alleged that he claimed that the income of the trust fund accruing between July 1,1886, and October 16, 1886, should be paid to him as personal property of Edward Gray Robinson of which he died intestate, “ and as to the principal of said trust fund, this defendant submits to such order or decree as to this honorable court shall seem meet and proper.”</p> <p>The answer of the wife admitted the allegations of the bill, “ excepting that she claims to receive from complainant only one half of the principal of said trust fund.”</p> <p>The answers of the sister and niece each admitted the allegations of the bill.</p> <p>Hearing upon the bill and answers before C. Allen, J., who reserved the case for the consideration of the full court.</p>

<p>Corporation— Creditor — Payments to Directors — Fraud.</p> <p>Payments made by a corporation, intending in good faith to go on and develop valuable patents owned by it, to its directors of money borrowed from them in the ordinary course of business, are not recoverable from such directors by a creditor of the corporation whose debt at the time was not due and payable.</p>

Two ACTIONS OF CONTRACT upon poor debtor recognizances, entered into 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.

<p>Marine Insurance — Freight — Abandonment — Total Loss — Cargo — Evidence.</p> <p>A loss of more than half a cargo of coal in specie by perils insured against authorizes the abandonment and a claim for a total loss of freight, insured under a valued policy, though the actual freight lost and the cost of forwarding the cargo left is less than one half the valued freight.</p> <p>In an action on such a policy upon freight on a cargo of two hundred and seventy-four tons of coal, also insured by the defendant, there was evidence that the defendant had paid the owners of the cargo as for a total loss; that forty or fifty tons were thrown overboard to save the vessel; that “great seas” washed some coal out of her; that thirty to forty-five tons were lightered; that a “ very little " was used by the steam pumps of a wrecking company; and that she was not further discharged until she reached a port, where forty tons remaining were taken out of her. Held, that a jury would be warranted in finding that more than half the cargo was lost by perils insured against.</p>

Contract against Daniel E. Kempster, William L. Faxon, and Stiles Frost, as copartners, doing business under the firm name of the Kempster Roller Skate Coufpany, to recover for certain boxwood rolls sold and delivered to them.

Contract to recover a balance due for wages. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows. On October 15, 1885, the plaintiff assigned in writing all his wages then due, or that might become due, from the defendant, to John K. Harriman, until October 1,1886, to secure a grocery bill. When the action was brought, the plaintiff was still indebted to Harriman, and so remained at the time of the trial.

<p>Husband and Wife — Promissory Note — Consideration — Public Policy.</p> <p>A husband guilty of extreme cruelty to his wife, who thereupon left him and consulted counsel as to obtaining a divorce and alimony, gave a note to a trustee for her benefit, in consideration that she would drop the divorce proceedings and “return to him and live with him as his wife”; and the wife returned to him and lived with him as his wife until his death. Held, that the consideration for the note was illegal. — C. Allen, Holmes, & Knowlton, JJ., dissenting.</p>

<p>Judgment — Review — A bsence — Laches.</p> <p>A judgment by default in a civil action against a defendant, on whom personal service was made and by whom an appearance was entered, is not rendered in his “ absence,” within the Pub. Sts. c. 187, § 22, and a petition for a review, filed more than a year after it has been rendered, but within a year after he had notice thereof, is too late.</p>

Tort for damages caused by surface water, accumulated in a catch-basin in Bartlett Street in Beverly, percolating into the cellar of the plaintiff. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows.

<p>Contract. Writ dated November 1, 1886. The first count of the declaration alleged that the defendants owed the plaintiff $2,500 for breach of a written agreement signed by the parties and annexed thereto, the material parts of which were as follows:</p> <p>“ This agreement, made this sixteenth day of March, A. D. 1886, by and between Robert Bishop, of Boston in the Commonwealth of Massachusetts, party of the first part, and Elisha L. Palmer, Frank L. Palmer, Edward A. Palmer, and George S. Palmer, copartners together, doing business under the firm name and style of Palmer Brothers, at Montville in the State of Connecticut, parties of the second part; and the Massasoit Manufacturing Company, a corporation doing business at Fall River in the Commonwealth of Massachusetts, party of the third part, witnesseth:</p> <p>“That whereas said party of the first part is engaged,in the business of manufacturing and selling bedquilts and comfortables, and is also engaged in the business of buying, selling, and dealing generally in cotton waste; and whereas he is desirous of selling out his business as a manufacturer of bedquilts and comfortables, together with all his plant, machinery, and stocks, manufactured and unmanufactured, now on hand, and of wholly giving up and going out of said business for the next five years, and is also desirous of selling that part of his cotton waste business which is' done or transacted in whole or in part in the city of Fall River, in said Commonwealth, and with any and all of the mills doing business in said city:</p> <p>“ Now therefore, in consideration of the premises, and of the sum of five thousand dollars ($5,000) to be paid by the parties of the second and third parts in the manner and at the times hereinafter specified, the party of the first part hereby sells, assigns, transfers, and delivers unto the parties of the second part his entire business plant and enterprise as a manufacturer of and dealer in bedquilts and comfortables, together with the good will of said business, and all and singular, the machinery, implements, and utensils used by him in said business, and constituting said manufacturer’s plant.....</p> <p>“ And for the consideration aforesaid, said party of the first part hereby, sells, assigns, transfers, and conveys to the party of the third part all that portion of his waste business which is transacted or done in the city of Fall River, in the Commonwealth of Massachusetts, with any and all corporations doing business in said city; and he hereby assigns and transfers to said party of the third part all his existing contracts, whether verbal or written, with any of such corporations, or with firms or persons, and all rights thereunder, including rights of renewal; and also the good will of his said business and trade with the corporations in said city of Fall River. This clause does not have reference to buying and selling from individuals. It being the intention of said party of the first part absolutely and completely to sell and transfer to said party of the third part his entire cotton waste business, trade, and dealings, and the exclusive right to deal and do a cotton waste business with and purchase cotton waste of any and all of said corporations, for the period of five years from the date hereof.</p> <p>“ And said party of the first part hereby, for himself, his executors, administrators, and assigns, covenants and agrees with said parties of the second and third parts and each of them, and their executors, administrators, successors, and assigns respectively, that for and during the period of .five years from the date hereof he will not either directly or indirectly, in his own name or in the name of any other person or persons, continue in, carry on, or engage in the business of manufacturing or dealing in bedquilts or comfortables, or of any business of which that may form any part.</p> <p>“ And he further covenants and agrees as aforesaid, that for and during said period he will not enter into the cotton waste business in said city of Fall River with any corporation, firm, or person located and doing business in said city; and especially that he will not, directly or indirectly, in his own name or in the name of any other person, buy, or influence, or procure other persons to buy, any cotton waste from said mills, in said city of Fall River, or belonging to or controlled by any corporation located in said city, and that he will not, either directly or indirectly, make any bid therefor, or influence any other person so to do, in connection with the waste business in said city, or the purchase of waste from such parties.</p> <p>“ And he further covenants and agrees that he will not buy or offer to buy of any person whatever the waste produced by the corporations known as the Granite Mills, Troy Cotton and Woolen Mills, Richard Borden Manufacturing Company, and Pocasset Manufacturing Company.</p> <p>“And the said parties of the second and third parts, in consideration of the sale and delivery of said business, plant, and property, and said cotton waste business and contracts, and the faithful performance of the covenants and agreements herein made by the party of the first part, agree to purchase said business plant and property, and said cotton waste business, and to pay therefor to said party of the first part the sum of five thousand dollars in ten equal monthly instalments, the first five hundred dollars to be paid on the first day of July, 1886, and the remaining instalments on the first day of each month thereafter, until all are paid.”</p> <p>The declaration contained a second count, upon an account annexed, for the recovery of the same amount.</p> <p>The defendants demurred to the declaration, assigning the following grounds of demurrer:</p> <p>“ 1. That the allegations, matters, and facts set forth in said declaration, and in each count thereof, do not in law constitute a cause of action against these defendants, or either of them. 2. For the reason that the contract annexed to the plaintiff’s-declaration, a breach of which is set forth in the first count thereof as the cause of action relied on therein, and which contract is referred to in the second count of said declaration, for a breach of which the sums claimed in said second count purport to be due, is an unlawful contract and a contract in restraint of trade, is -against public policy and void, and cannot be enforced at law. 3. That both counts appear to be for the same cause of action, and the cause of action set forth in each count arises under said contract for a breach thereof by the defendants in failing to pay the plaintiff the amount claimed in said counts; but it appears by said contract that one of the considerations for said payments was the covenants and agreements of the plaintiff therein not to manufacture or be interested in the manufacture or sale of bedquilts and comfortables, as therein set forth, anywhere whatever, and without any limitation as to place, during the period of five years therein named, and also the covenants and agreements of the plaintiff in said contract to the effect that he will not enter into competition with the Massasoit Company, one of the defendants, at Fall River, for the purchase of cotton waste, or bid therefor directly or indirectly against or in competition with said company for said waste; all of which agreements, covenants, and considerations are illegal and void, in restraint of trade and against public policy, and fraudulent, and said contract is illegal and void, in restraint of trade and contrary to public policy, and cannot be enforced by the plaintiff. 4. That it appears by.said contract that the considerations of any and all the agreements and undertakings of the defendants therein, for a breach of which the plaintiff sues, are illegal and void, and that said contract is illegal and void, and in restraint of trade and contrary to public policy, and void.”</p> <p>The Superior Court sustained the demurrer, and ordered judgment for the defendants, and the plaintiff appealed to this court.</p>

<p>Tax — Collector of Taxes — Bond — Interest.</p> <p>A collector of taxes, who was chosen by a town as being the lowest bidder, paid over, in accordance with his bond, the full amount of the taxes committed to him, whether actually collected or not, at the dates specified, but withheld the interest added to all taxes unpaid after a certain time by a vote of the town under the Pub. Sts. c. 11, § 67, and collected by him from the delinquent taxpayers. Held, that he was entitled to such interest.</p>

Petition praying for the appointment of commissioners under the St. of 1886, c. 269, § 10, to determine the price to he paid by the… Held: at which it was voted to contract with Wheeler and Parks, contractors, for the construction of the works, and on October 19, 1886, the petitioner entered into a contract with them, by which the franchise and other property was to be mortgaged to secure an issue of bonds, to be delivered to them, and all the bonds and stock less the…

<p>Habeas corpus to the superintendent of the Lyman School for Boys, issued on November 7, 1887, upon the petition of Martin Sennott, verified by his oath, which represented that his son, Mark Sennott, a minor of the age of-fourteen years, was unlawfully restrained of his liberty by the superintendent of that school; and that the superintendent was holding him upon a mittimus issued by the Police Court of Fitchburg upon a judgment of that court rendered against him upon a complaint charging him with breaking and entering, the record of which judgment was as follows:</p> <p>“Commonwealth of Massachusetts. Worcester ss. By virtue of a warrant issued on this complaint, the defendant is before the Police Court of Fitchburg, in the county of Worcester, on the eighth day of July, A. D. 1887, and said complaint is read to him, and he says that thereof he is not guilty. Continued to July 12, when, after hearing all matters and things concerning the same, it is adjudged by the said Police Court, that said defendant is guilty. Continued to August 9, for sentence. When it is thereupon ordered by the said Police Court, that the said defendant be committed to the State Board, to be sent to the Lyman School. Committed. Wylm G. Hayes, Clerk.”</p> <p>The mittimus was as follows:</p> <p>“ Commonwealth of Massachusetts.</p> <p>“ Worcester ss. To the sheriff of our county of Worcester, his deputy, any constable of the Commonwealth, or any constable of any town or city in said county, tbe State Board of Health, Lunacy, and Charity, the visiting agent of said board, or either of his assistants, Greeting :</p> <p>“ You are hereby commanded, in the name of the Commonwealth of Massachusetts, forthwith to convey and deliver into the custody of the State Board of Health, Lunacy, and Charity, the body of Mark Sennott, a boy between seven and seventeen years of age, now before the Police Court of Fitchburg, in said county, on complaint of C. H. D. Stockbridge, made under oath, against said defendant, for that said defendant, heretofore, to wit, on the third day of July, in the year eighteen hundred and eighty-seven, at Fitchburg, in said county, the store of W. W. Smith, there situate, did break and enter, with intent the goods and chattels in the same store then and there being to steal, take, and carry away, and then and there, two revolvers, of the value of six dollars, of the money, goods, and chattels of W. W. Smith, in the same store then and there being found, then and there in .the same store did steal, take, and carry away.</p> <p>“And, after hearing all matters and things concerning the same, and all persons entitled thereto, having been duly summoned and notified of the pendency of said complaint, as required by law, it is adjudged by said court that said defendant is guilty, and it appears that he is of the age of years and months, and upon request of the visiting agent of the State Board of Health, Lunacy, and Charity, said board is hereby authorized to take and indenture, or place in charge of any person, or in the Lyman School,.said boy, till he attains the age of twenty-one years, or for any less time; and if said boy prove unmanageable, to transfer and commit him to the State Reform or Industrial School, subject to such conditions as are now defined by law for admission to said schools, till he attains the age of twenty-one years, or for any less time, or until he is otherwise discharged in due course of law.</p> <p>“Witness, Thornton K. Ware, Esquire, at Fitchburg, this ninth day of August, in the year of our Lord one thousand eight hundred and eighty-seven. Wylm G. Hayes, Clerk.”</p> <p>The return upon the mittimus, dated August 9, 1887, and signed by a constable of Fitchburg, set forth that “ by virtue of this warrant I have this day conveyed and delivered the body of the within named defendant into the custody of the State Board of Health, Lunacy, and Charity, as within directed.”</p> <p>At the hearing before JDevens, J., where it appeared that Mark Sennott was a boy between seven and seventeen years of age, and that he was held in custody by the superintendent solely by virtue of the mittimus, the petitioner moved that he be discharged from his imprisonment for the following reasons: “1. Because he says the Police Court had no jurisdiction, and its judgment is void, in that the record discloses the fact that the case was disposed of contrary to the laws of said Commonwealth which provide for the trial of juvenile offenders. 2. Because the mittimus issued on said judgment is irregular, and contrary to the laws of said Commonwealth, and the imprisonment of said boy by virtue thereof is unlawful.”</p> <p>The judge overruled the motion, and ruled that, the judgment having been rendered by a court which had jurisdiction of the person and offence, the validity of its judgment and commitment could not be inquired into on a writ of habeas corpus, but must stand until reversed on a writ of error; and reported the case for the consideration of the full court. If the ruling was right, the prisoner was to be remanded; otherwise he was to be discharged.</p>

<p>Corporation — Equity Pleading — Multifariousness — Laches.</p> <p>A bill in equity by a stockholder, for himself and other stockholders, brought against the corporation and a part only of the directors, for wrongful mismanagement, is not maintainable unless it shows that redress has been sought of the corporation itself, or of the existing board of directors, or that such seeking would be useless; and this requirement is not satisfied by an allegation that one of the directors, who is a party defendant, controls the majority of the stock, and elects such a board as he may choose, but with no averment of fraud or misconduct on the part of the other directors.</p> <p>The joinder, in a bill in equity by a stockholder to secure the payment of dividends, of a request that such be paid out of moneys ou hand, and a demand that the corporation should seek the restitution of moneys misapplied by it for the making of further dividends, does not make the bill multifarious.</p> <p>Such a bill is not maintainable for former dividends wrongfully withheld from certain stockholders not made parties plaintiff.</p> <p>A bill in equity, filed in December, 1886, alleged that improper investments had been made by a corporation, the last but one being in 1881, as appeared in its books, while the plaintiff was a director or treasurer, but did not aver fraud in the making or objection, or ignorance on his part; that the salary of the president had been raised for a term ending in 1875; and that a loan of money had been obtained in 1874, upon which interest was thenceforth paid. Held, that the plaintiff had been guilty of such laches as to prevent his maintaining the bill.</p>

Bill in equity, filed April 8,1887, by the surviving executor of the will of George Cummings, to obtain the instructions of the court as to the payment of the annuity mentioned in the second clause, and the distribution of the residue provided for in the sixteenth clause. The will, omitting the parts merely formal, was as follows: 1. “ Imprimis.

Complaint on the Pub. Sts. c. 100, § 80, to James T. Joslin, a trial justice for the county of Middlesex, alleging that, on August 29, 1887, certain intoxicating liquors were “ kept and deposited by Zephrin Lucia of said Hudson, in a certain hotel and barn situate on the north side of Main Street, in Hudson Centre, known as the Valley House and barn in the rear thereof, next east of the Bakery Building, occupied in part by Geo.

<p>Indictment on the St. of 1886, c. 318, § 2, alleging that “the jurors for the Commonwealth of Massachusetts, on their oath present, that John V. Schaffner, of Boston aforesaid, on the fifteenth day of May, in the year of our Lord one thousand eight hundred and eighty-seven, at Boston aforesaid, unlawfully did have in his possession' milk to. which a certain foreign substance had been added, to wit, annatto coloring matter, a further description of which said jurors cannot give, with intent then and there unlawfully to sell the said milk within this Commonwealth.”</p> <p>In the Superior Court, after the jury was impanelled and sworn, the defendant moved'to quash the indictment for the following reasons: “ 1. The indictment sets forth and describes no crime or offence known to the law. 2. A complaint for the same cause, and founded on the ■ same identical facts, was sworn out against this defendant, and has been disposed of in this court.” Bacon, J., overruled the motion.</p> <p>At the trial, it appeared that two samples of milk were taken from the defendant’s wagon, on the same day, and substantially at the same time. The defendant requested the judge to require the government to elect as to which sample it should rely upon; but the judge refused to comply with this request, and admitted evidence as to both samples, against the defendant’s objection.</p> <p>A milk inspector, called by the government, who testified that, upon testing the milk, he found it to contain some annatto coloring matter, was asked, on cross-examination, whether the quantity found would be injurious to health, but, upon objection by the government, was not permitted to answer. A chemist, called by the government, testified that he had analyzed both the samples taken to ascertain the standard quality of the milk, and was asked to state what he found the quality of the milk to be, and replied, under the defendant’s objection, that “ the milk was of a low grade.”</p> <p>One Bowker, called by the defendant as an expert, was asked, on cross-examination, if he wrote a certain letter, to which he replied in the affirmative. To impeach the testimony of this witness the government was permitted to introduce in evidence, against the defendant’s objection, a letter, addressed by the witness to one Tarbell, in relation to tbe coloring of vinegar, which was as follows: “ Office of Dr. H. L. Bowker & Co., Manufacturing Chemists, 295 and 297 Franklin Street. Dn H. L. Bowker, State Assayer for Massachusetts. Boston, July 17, 1884. Mr. E. Tarbell: Dear Sir, — Your vinegar tests am’t 4jVt per cent of acetic acid, or 30 grains soda test. The new law requires 5 per cent, and nothing short. You can use a little of our vinegar acid, and fetch it up at small expense. Yours, H. L. Bowker & Co.”</p> <p>After the evidence was all in, the defendant asked the judge to rule that the indictment was not sufficient to warrant a verdict of guilty, because it did not describe or set forth any crime or offence known to the law; but the judge ruled that it was sufficient, and so instructed the jury. The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Bill in equity, filed August 19, 1887, to redeem land from a mortgage. Hearing before Devens, J., who reserved the case, on the bill, answer, and agreed facts, for the-consideration of the full court. The case was submitted on briefs to all the judges. The facts appear in the opinion.</p>

Contract to recover f8,000 on a certificate of membership in the defendant association, issued to Edward A. Clapp for the benefit of his wife, Ellen M. Clapp. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows.

<p>Adverse Possession — Evidence — Declarations.</p> <p>Evidence that a tenant, a single woman, in a writ of entry took possession of the demanded premises under an alleged verbal gift from an uncle and occupied them for twenty years, but “ never did anything without consulting him ” during that period; that she told her friends that she was the owner of the premises ; that she let a portion, with her uncle’s approval, and collected the rent thereof; that, as she testified, “as regards the tenants, to them I always acted as owner”; that the members of her father’s family, who lived with her for much of the time, paid her no rent; that she did “ papering or whitewashing, or something like that,” to the premises; that her uncle paid the family expenses before and during the twenty years till he died; that he paid for insurance, water rates, repairs, and the taxes, which were assessed to him, as afterwards to his heirs; and that sisters of her uncle, who acknowledged his ownership, occupied part of the premises rent free before and after the tenant took possession, one of whom, as his agent, collected rents of certain tenants, contracted for repairs, and paid therefor with money furnished by him, will not authorize a finding that the tenant acquired a title by adverse possession.</p> <p>Declarations of an alleged donor of land thereafter as to his ownership, and how the donee occupied it, and his entry of it in an inventory of his property, are incompetent on the questions whether there was a gift, and whether the donee held it by adverse possession.</p>

Contract for the breach of an agreement in writing, dated November 12,1887, by the plaintiff to sell and by the defendant to purchase, at a price named, a parcel of land in Brockton, “ containing fourteen acres, more or less.

<p>Alabama Claims — War Premiums— Gift — Bankruptcy — Assignee.</p> <p>Money paid by the United States, out of the Geneva Award, under the U. S. St. of June 5,1882, for the reimbursement of war premiums paid from 1861 to 1865, ' constitutes a gift to one who paid such premiums, and will not pass to his assignee in bankruptcy under an assignment made in 1875. — Field & W. Allen, JJ., dissenting.</p>

<p>Bill in equity to restrain the defendants, who were the lessees and owners of T Wharf, from using a common passageway between the private docks of Commercial Wharf and T Wharf as a berth for vessels. The defendants demurred to the bill, among other grounds, for want of equity, and because the owners of T Wharf were not proper parties. Hearing before Gardner, J., who made certain findings of fact, and reserved the ease for the consideration of the full court. Certain plans were used at thé hearing, a copy of so much of which as is material appears in the margin of the next page. The case was argued at the bar in January, 1888, and afterwards was submitted on briefs to all the judges. The facts appear in the opinion.</p>

<p>Indictment, returned into the Superior Court on September 10, 1887, alleging that the defendant kept and maintained a common nuisance, to wit, a tenement in Stoughton, used for the illegal sale and illegal keeping of intoxicating liquors, on January 1, 1887, and on divers other days and times between that day and August 9, 1887. Trial before Pitman, J., who, after a verdict of guilty, allowed the following bill of exceptions:</p> <p>“ The government introduced the testimony of three constables of said town of Stoughton, Callahan, Vanston, and Lane, each of whom testified to a seizure of liquors made at the defendant’s drug store, in said Stoughton, on the sixteenth day of July, 1887, of rum, gin, and whiskey, in quantities of less than three quarts each, contained in six ordinary druggist’s ornamental shelf bottles, and one cocoa wine bottle. The latter was, at the time of seizure, on the prescription case, and the former were on the shelves of the store with other similar bottles, in an ordinarily conspicuous position. In the back room was a keg that had contained whiskey, and a bottle with some ale, and in the cellar a number of empty ale and porter bottles. No other intoxicating liquor was found. It was in testimony that the defendant’s store was an ordinary druggist or apothecary store, with the stationery, fancy goods, cigars, medicines, and soda fountain usually found in an ordinary country drug store. The defendant was not present at the time of the seizure. There was also evidence that on the night ' of the 4th of June, 1887, the defendant and one Roach came out of the back door of said store in a state of intoxication; that persons had been seen coming from the shop under the influence of liquor; that persons who came out on the street drank from bottles, and that on two occasions the defendant had been seen to fill bottles from bottles in the store, and give them to customers, and had been seen to conceal from the sight of the officers bottles which he had filled for customers, as the officers stepped in. There was no evidence of a sale of liquor by the defendant. The Commonwealth rested.</p> <p>“ The defendant first called Hiram Blanchard, one of the selectmen of said Stoughton and the clerk of the board, and offered to show by the records of said board of selectmen, that at the time of the seizure said defendant had made application to said board of selectmen for a license of the sixth class under the statutes of 1887, and that five days after the complaint was made, which was the foundation of this indictment, such license was granted to the defendant, and was still in force; but the evidence was excluded by the court. The defendant called one Amasa Lucas, who testified that he lived next door to the defendant’s said drug store, and never saw any drunken people go in or out of said store, and never bought or knew of any one else buying liquor of said defendant. Upon cross-examination by the district attorney, he was asked if he had not complained of the place to constable Callahan, to which he replied that he never had, but that he once had some conversation with Callahan alone on the street about the defendant’s store. The district attorney asked what the conversation was, to which the defendant objected. The objection was overruled, and the question was put.</p> <p>“ The defendant, among other things, asked the court in charging the jury, to rule that, ‘in determining the intent with which the defendant kept liquors which may have been upon his premises, the jury are to consider all the evidence in the case, including the evidence of his purchasing the stock as a whole from his predecessor, the evidence of the officer as to a license, the brief period which elapsed between the date of the finding the liquors and the granting of the license, and the situation in the store in which the liquors seized were kept.’ This ruling was given as far as the words ‘ including the evidence,’ &c., with the following comment: ‘ Then follows a recital of evidence, supposed to be favorable to the defendant, which I omit because I am not bound to select any particular parts of the evidence, as the Supreme Court have said, in order to help out an argument for the defendant.’ The court also instructed the jury, in regard to the license of the defendant, as follows: ‘There was no license at this time, and it is entirely immaterial whether there was a license afterwards, because no man is justified in selling liquor in anticipation of getting a license later on.’ ”</p>

Complaint alleging that the defendant, on November 26, 1887, at Boston, unlawfully exposed and kept for sale, intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth. Trial in the Superior Court before Sherman, J., who allowed a bill of exceptions, which, so far as material, was as follows.

<p>Indictment for the murder of Prince Arthur Freeman by poisoning. At the trial, before Field and JSkowlton, JJ., there was evidence tending to prove the following facts.</p> <p>In February, 1885, Freeman occupied a tenement in South Boston with his wife, Annie Freeman, who was a sister of the defendant, and their two children. On February 20, 1885, the defendant called upon her sister, staying but a short time, and on February 28, 1885, again went to her sister’s house to take care of her, and there stayed until Mrs. Freeman died, on February 26,1885, after an illness of about three weeks. The children had been taken to the defendant’s house in Cambridge on February 22, and, immediately after the death of his wife, Freeman went to live with the defendant, and thei-e remained, with his children, one of whom died in April, 1885. In 1882 Freeman took out a certificate of insurance for $2,000 in the United Order of Pilgrim Fathers, his wife being the beneficiary named in the certificate, and after her death, on or about May 13, 1885, appointed the defendant his beneficiary under the certificate, as authorized by the by-laws of the order. Freeman, while still an inmate of the defendant’s family, died, on June 27,1885, after an illness of about six days, from the effects of arsenic administered to him by the defendant. From a period prior to 1885, the defendant had been indebted to different persons to the amount- of six or seven hundred dollars, which she was unable to pay, and for which she had been hard pressed by her creditors, and this indebtedness she paid off out of Freeman’s insurance, which she duly received from the order on September 23, 1885.</p> <p>The government contended — and offered, for the sole purpose of establishing the defendant’s motive in killing Freeman, evidence to prove — that prior to the death of Annie Freeman the defendant had formed the plan and intention of securing to her own use the $2,000 of insurance, and as a means of accomplishing this result, and as a part of the scheme, determined first to kill her, then to induce Freeman to make her the beneficiary under the certificate, and then to kill him. Upon this offer the court ruled as follows; “ If evidence direct or circumstantial is offered and admitted tending to show that this defendant knew before her sister’s death of the existence of the insurance, and that it could be transferred on the death of her sister to herself, and made payable to herself on the death of her brother-in-law, and that she before her sister’s death had formed in her own mind a plan or intention to obtain this insurance for her own benefit, and this plan or intention continued to exist and be operative up to the time of the death of the brother-in-law, then we are of the opinion that evidence may be offered that her sister died of poison, and that this defendant administered it as a part of the method employed by her to carry this plan or intention into effect, in connection with evidence that she. administered poison to her brother-in-law as another part of the same plan or intention. We think that evidence of this knowledge and plan or intention on the part of the defendant, if there be any, should first be offered, that the court may judge whether it is sufficient to warrant the introduction of evidence that the sister died of poison administered by the defendant.”</p> <p>The government thereupon offered evidence to prove such a scheme on the part of the defendant, which was admitted. This contention of the government, and offer of evidence of the alleged scheme and intention of the defendant, the arguments of counsel, and the above ruling of the court thereon, were all made in open court, in the presence of the defendant, but in the absence of the jury. The evidence so far as material was as follows.</p> <p>Susan S. Marshall testified that the defendant remarked to her that Prince Arthur Freeman was insured in or had joined the order about the time he joined it in 1882; that during the sickness of Mrs. Freeman, at the defendant's request, she assisted in taking care of her; that while she was there the defendant expressed the opinion that Mrs. Freeman would not live ; and that immediately after. Mrs. Freeman’s death the defendant requested her to use her influence with Freeman to take his children and come to live with her.</p> <p>Mrs. Mary J. Wright testified that she lived in the same house ■with Mrs. Freeman in South Boston at the time of her death; that she frequently saw the defendant while she was taking care of her sister; that she frequently heard the defendant say, before her sister’s death, that she was satisfied her sister would never recover; that on one occasion the defendant said that she had hád a terrible dream, and that she knew her sister would never get any better, as whenever she had a dream like that there was always one of the family died, and that she knew her sister would never recover; that at the time the defendant came, Mrs. Freeman seemed to be getting better, when, all at once, she seemed to sink very fast; that the defendant asked her, before and after Mrs. Freeman’s death, to use her influence with Freeman to come and live with her with the children after her death; that on one occasion the defendant requested Freeman to go into the chamber where his wife was, and when she came out she said, “ There, I have fixed it all right now, — any little rings, or anything that Annie has, I have had distributed so that there will be no trouble if anything should happen to her, and the children are to come to me ”; and that the defendant expressed the opinion that Mrs. Freeman would not recover, and within a day or two after she came to take care of her said to various persons who came in that her sister would never recover.</p> <p>Mary L. Moore testified that on three occasions during Mrs. Freeman’s sickness, and while the defendant was there, she took care of her during the night; that the defendant did not seem to think her sister would recover; that the defendant desired her to use her influence with Freeman to come and live with her after his wife’s death; that Freeman’s life was insured, and that it was in her sister’s name; and that after Mrs. Freeman’s death the defendant told her that the Freemans were going to live with her, and that she did not wish them to live with his relatives.</p> <p>Belle M. Clough testified, that she was an intimate friend of the defendant’s family ; that she attended the funeral of Mrs. Freeman at South Boston, and returned in a carriage with the defendant from the cemetery; that on the way she had a conversation with the defendant about the insurance, and the Freemans living with her; that the defendant said she wished them to live with her, but that Mrs. Melvin, a sister of Freeman, was very anxious to have him live with her; that the defendant said that all Mrs. Melvin wanted was to get the insurance made over to her, but that she had the best right to it, and it was her sister’s request that it should be made over to her, and she wanted it; that the defendant said that she had requested her daughter to use all her influence upon her uncle to go and live with them, as her daughter had a great deal of influence over him; that at the supper after the funeral at Freeman’s house, the defendant had a conversation with him about the insurance; that she was very anxious to have him come as soon as possible to her house to live, and he said that he would come just as soon as he could get the things at the house straightened out; that the defendant wanted to know if the insurance was made over to her, and he said it was not, but should be; that the defendant said that his mother and sister were anxious to have him come with them now that they saw he had an insurance, but before that they did not care anything about him ; that the subject of insurance was afterwards quite frequently spoken of by the defendant, who said that she was afraid that Freeman would not make the insurance over to her ; that he was going over to his folks every Sunday, and she thought they had a good deal of influence over him, as he had changed considerably, and was not as pleasant at the house with her; that on the evening that Freeman was taken sick, June 22, the defendant asked the witness to go over to Boston with the defendant’s daughter, to a colony of the order of which he was a member, to see if all the papers were right in case anything happened to him, whether the defendant would get the insurance, and if all the assessments were paid up; that the defendant sent over to see about the insurance once or twice afterwards before his death; and that some time after Freeman’s death the defendant said that the insurance was made over to her to take care of the child, and that after she had paid all of Freeman’s bills there was very little left for the boy.</p> <p>Florence A. Stanwood testified, that she was secretary of the colony of which Freeman was a member, and went over to the defendant’s house the day before Freeman’s death, because of a message from her daughter and the witness Clough; that there was a conversation about the insurance in the presence of the defendant and Freeman; that she informed them that the papers were all right; that after the interview the defendant went with her into the parlor, and there requested her not to tell about the insurance; and that the defendant said that Mrs. Melvin, as soon as there was some money coming, would want to take care of the children for the sake of it.</p> <p>William Foster testified, that he was at the defendant’s on the day of Mrs. Freeman’s death, and had a conversation with the defendant, who said that there was an insurance of two thousand dollars in the colony of the Pilgrim Fathers, and that the insurance had been made over to her ; that she would not have taken Freeman if the insurance had not been made over to her; that probably Freeman’s friends would want the insurance papers, but that she did not think they would find them, for they had been put away where she thought they would be unable to get them.</p> <p>The government offered evidence tending to prove the death of Annie Freeman by arsenic, knowingly administered by the defendant.</p> <p>The defendant objected to the admission of this evidence, on the ground that no evidence, and no sufficient evidence, had been offered to prove the alleged scheme and intention of the defendant; that no sufficient foundation had been laid for the introduction of any evidence relating to the cause of the death of Annie Freeman, or the defendant’s connection therewith; and that it was not competent, notwithstanding any evidence of the scheme or intention, to prove the 'cause of the death of Annie Freeman, or the defendant’s connection therewith; but the court overruled the objection, and admitted the evidence.</p> <p>The court ruled, and instructed the jury, that, upon a trial of a defendant for the commission of a crime, evidence that at another time he committed a similar crime could not be received or considered as tending to show that he committed the crime for which he was on trial; that evidence tending to show that the defendant killed her sister, Annie Freeman, was not to be considered as indicating that she would be likely to kill Prince Arthur Freeman; and that all the evidence in relation to the death of Annie Freeman was only to be considered so far as it bore upon the question whether the defendant, at the time of the alleged murder of Prince Arthur Freeman, was actuated by the motive which was imputed to her by the Commonwealth, to obtain for her own use the life insurance money payable on his death.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Bill in equity to restrain the defendants from cutting down the grade, eight or ten feet, of a private way, called Myrtle Street, in Haverhill. The case was heard on a master’s report, and exceptions thereto, by C. Allen, J., who ordered a decree for the plaintiffs; and the defendants appealed to the full court. The facts appear in the opinion.

Tout for personal injuries sustained by the plaintiff, on May 10, 1884, while in the defendant’s employment. At the trial in the Superior Court, before Bather, J., there was evidence tending to prove the following facts.

<p>Tort for personal injuries occasioned to the plaintiff, a cabdriver, by a collision between the cab and a wagon of the defendant.</p> <p>At the trial in the Superior Court, before Blodgett, J., evidence was introduced tending to show that the defendant was incorporated under the St. of 1874, c. 61,* for the protection of life and property at fires in the city of Boston, and that the collision occurred while one of its wagons, with its regular complement of men, was responding to a fire alarm; that the wagon was proceeding along Washington Street in a northerly direction; that the cab, upon which the plaintiff was sitting, was one of several cabs standing in a line upon the easterly side of Washington Street between the easterly track of a street railway and the curbstone; that the plaintiff’s cab and horse were not drawn up lengthwise of the street and as near as possible to the curbstone, but that the horse was facing the sidewalk at an angle so that the body of the cab projected eighteen or twenty inches into the street beyond the line of the other cabs; and that the wagon of the defendant was driven negligently into the cab, causing the accident.</p> <p>The defendant asked the judge to instruct the jury as follows r</p> <p>“ 1. If the plaintiff, at the time of the accident, was violating the ordinance of the city of Boston, to wit, ‘ Every owner, driver, or other person having the care and ordering of a vehicle shall, when stopping in a street, place his vehicle and the horse or horses connected therewith lengthwise with the street, as near as possible to the sidewalk,’ that was an unlawful act, and he cannot recover in this action. 2. If that unlawful act contributed to cause the alleged injury, the plaintiff was not in the exercise of due care, and therefore he cannot maintain this action. 3. Under section 3, chapter 61, of the Acts of 1874, ‘The officers and men of the Boston Protective Department, with their teams and apparatus, shall have the right of way, while going to a fire, through any street, lane, or alley in the city of Boston,’ said defendant is not liable for an accident caused by the collision of one of its teams, while going to a fire, with a vehicle standing in the streets, in violation of either of the city ordinances. 4. If the plaintiff, at the time of the action, was violating the ordinance of the city of Boston, to wit, ‘ Every driver of a vehicle shall remain near it while it is unemployed' or standing in a street, unless he is necessarily absent in the course of his duty and business, and he shall so keep his horse or horses and vehicle as not to obstruct the streets,’ that was an unlawful act, and he cannot recover in this action. 5. If that unlawful act contributed to cause the alleged injury, the plaintiff was not in the exercise of due care, and therefore he cannot maintain this action.”</p> <p>The judge refused to give these instructions, but instructed the jury as to the effect of a violation of the ordinance as to the position of a vehicle and horse while standing in a street, stating that the rule was applicable to both ordinances, as follows:</p> <p>“ Bearing in mind the provision of the regulation as to the position of a vehicle when not in motion, I instruct you as to the law, that if, at the time of the injury to the plaintiff, he allowed his carriage to stand in the street in violation of this ordinance, such violation is evidence of negligence on his part; and, if such negligence directly contributed to the injury, the plaintiff cannot maintain the action. It cannot be said, as matter of law, that the fact that the plaintiff was violating a city ordinance necessarily shows negligence that contributed to the injury. Whether the position of the plaintiff’s horse and carriage, in violation of an ordinance, did or did not contribute to the injury, is a question of fact for the jury; and in determining this question, the jury will take into consideration all the surrounding facts and - circumstances.....The plaintiff must prove that his position was not so carelessly taken as to contribute to the collision; and the fact that his position was in violation of the ordinance is not conclusive proof of negligence which contributed to the injury. Or, stating the general rule in a somewhat different form, the fact that the plaintiff is engaged in violating the law does not prevent him from recovering damages of the defendant for an injury which the defendant could have avoided by the exercise of ordinary care, unless the unlawful act contributed proximately to produce the injury. . . . . If, applying these rules, you are of the opinion that there was no negligence, in other words, no carelessness, on the part of the plaintiff, which directly contributed to the injury, then the plaintiff is entitled to maintain this action, if he proves another proposition; and as to that, the burden is upon him. And that proposition is, that the defendant’s servants, in the care and management of this wagon, at the time the plaintiff was injured, were negligent.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries sustained by the plaintiff by being thrown from a car of the defendant. Trial in the Superior Court, before Pitman, J., who ordered a verdict for the defendant, and reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff testified that he lived on the line of the defendant’s railroad, and that on the afternoon of December 15, 1885, instead of taking a train that stopped at his station, as he intended, he entered another train by mistake; that after the train had started, the conductor, on looking at his ticket, told him that the train was an express train that did not stop at his station ; that the conductor then said to him, “You will have to ride as far as Canton Junction, take the two rear cars, and come back at half-past eight”; that he “immediately got up to take the two rear cars ”; that while on his way, as he was passing from one car to another, he met a woman coming towards him; that he had just time to turn on his heel to let her pass, “when the train gave a lurch to the left, threw me off my balance, and I instinctively threw out my left hand to grasp the railing between the two cars, and this lady was thrown against me, and the next thing I knew I found myself lying on the track and that I had been hurt”; and that there was no gate on the platform of the car.</p> <p>If the plaintiff was entitled to go to the jury on the above facts, then the verdict was to be set aside, and a new trial granted; otherwise, judgment was to be entered on the verdict.</p>

Contract, against Ranford Worthing and Henry E. Irvine, upon two promissory notes, dated November 14,1881, and payable in two months, made by the El Gaehi Mining Company, and indorsed by them and other directors of the company. The plaintiff discontinued as to Irvine. Trial in the Superior Court, without a jury, before Mason, J., who allowed a bill of exceptions, in substance as follows.

<p>Trespass — Title — Dower •—■ Evidence — Prohate Court.</p> <p>A person in actual occupation of land may maintain trespass against any one except the real owner, or one having the right of possession.</p> <p>A dowress in occupation of land may, in an action of trespass against a stranger, put in evidence, on the question of her possession, probate proceedings setting off the land to her, which, whether valid or invalid, have never been doubted.</p>

<p>Deed — Name — Registration — Constructive Notice.</p> <p>The registry of a deed executed by J. N. H, in which he calls himself J. H., by , which latter name he is equally well known in the town where he lives, is constructive notice to all persons of the transfer of the title.</p>

Contract. The original declaration was for use and occupation of certain premises, according to an account annexed, the several items of which were for the “ use of store basement, corner of Hartford and Wendell Streets,” in Boston, between dates specified. The plaintiff filed an amended declaration “ for warehouse room furnished by the plaintiff for the storage of an engine, the property of the defendant,” according to the same account annexed.

<p>Contract to recover $819.56, for breach of the following agreement, signed by the defendant and others: “Provincetown, January 17,1879. Having employed Benjamin Lancy, of Provincetown, to collect, or aid us in collecting, our several claims against the Union Wharf Company, of said Provincetown, we hereby agree to pay him fifty per cent of any amount received on our several claims, whether said company shall settle with or without going into insolvency, — the undersigned to pay no expense, not even from their one half of whatever may be received.”</p> <p>At the trial in the Superior Court, before Hammond, J., there was evidence that the plaintiff by his efforts, and through proceedings in the Court of Insolvency instituted by him, and at his own cost and expense, collected for, or caused to be paid to, the defendant, the sum of $1,639.13 of the latter’s claim against the wharf company.</p> <p>The judge ruled that the agreement was champertous, ordered a verdict for the defendant, and reported the case for the determination of this court. If the ruling was correct, judgment was to be entered for the defendant; otherwise, for the plaintiff.</p>

Tort for libel. The declaration also contained counts for damages for the expulsion of the plaintiff from membership in the defendant society, and for the lapse of his certificate of insurance. Trial in the Superior Court, without a jury, before Barker, J., who found for the defendant, and reported the case for the determination of this court, in substance as follows.

Contract to recover one half the cost of a party wall. Writ dated November 23, 1886. At the trial, without a jury, in the Superior Court, before Mason, J., the following facts were agreed.

Tort. The declaration, as amended, alleged that the plaintiffs -were the owners of a schooner, which was proceeding up the Charles River with a cargo of sand; that the defendant, as authorized by statute, owned and maintained a drawbridge for the passage of trains across that river; that the defendant was required by law to open the drawbridge and afford all proper accommodation to vessels having occasion to pass the same; that the schooner, having occasion to pass the…

Contract against George W. Twitchell and John Eliot, as former copartners under the name of George W. Twitchell and Company, on a promissory note payable to the order of the plaintiff, and signed by “ Geo.