Volume 147 — Massachusetts Reports

Bill in equity, filed August 7,1887, for the specific performance by the defendant of an agreement to purchase land. The facts of the case are as follows.

Contract, by tbe assignee in insolvency of the estate of Isaac H. Taylor, for money had and received. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on an agreed statement of ■facts, in substance as follows.

<p>Devise and Legacy— Children.</p> <p>A testator, after giving, by- a clause in his will afterwards revoked, the income of a part of his estate to a nephew for life, such portion to go at the nephew’s decease to his children “ who may be then living,” gave the income of the residue to the nephew also for life with a devise over “at his decease” of such residue to his “ children,” without more. Held, that the devise included all the nephew’s children living at the testator’s death.</p>

Petition to the Probate Court by Joseph Willard and Charles Steere, counsellors at law, alleging that they were counsel for Lizzie H. Orrok, a minor; that they had rendered professional services in her behalf according to an account annexed to the petition; and praying that Stephen Lavender, the guardian of her estate, might be ordered to pay to them the amount of their account from the estate.

Two appeals from a decree of the Probate Court, allowing a petition, filed June 8, 1886, by William J. Wilson and Ellen M. Wilson, praying for the payment to them of one third of the net proceeds of a sale by partition commissioners of real estate, the property at his decease of Maurice O’Connell. Hearing before Devens, J., who reported the case for the consideration of the full court, in substance as follows.

Cummings to declare void a decree appointing the respondent, David M. Hodgdon, administrator of the estate of William C. Hodgdon, a minor, and to vacate all proceedings on the same. Hearing, on an agreed statement of facts, before W. Allen, J., who ordered the, decree of the Probate Court to be reversed; and the petitioner appealed to the full court. The facts appear in the opinion.

<p>Fraud— Creditor— Special Attachment—Injunction.</p> <p>Equity will not restrain the prosecution of a statutory remedy, if the rights of the parties- can be fairly tried and are fully protected under another provision of the statutes.</p>

<p>Executor—Devise and Legacy — Eesiduary Clause.</p> <p>A bequest “ to each of my nephews, one and all,” will include those already given specific legacies under the will.</p> <p>A testator, after giving various legacies, provided, in the final clause of his will, that “ if in settling my estate there should not be money enough to pay the legatees what I have willed them, then pay one and all pro rata each, or if otherwise, the same pro rata.” Held, that a surplus in the estate was to be divided among the legatees pro rata according to their legacies.</p> <p>The executors were ordered to prepare and fence a cemetery lot, and to deposit funds the interest of which only was to be expended by a contemplated corporation in repairs thereon, and in addition were directed not to pay any legacies till the debts and the expense of fencing were paid and the deposits were made. Held, that the cemetery corporation was not a legatee within the meaning of the final clause of the will.</p>

<p>Complaint under the Pub. Sts. c. 101, §§ 6, 7, by Timothy Ide, dated June 20, 1887, to Nathan A. Cook, a trial justice for the county of Norfolk, alleging that the defendant, at Medway, from November 1, 1886, to June 12, 1887, “did keep a certain building, to wit, a certain dwelling-house, a saloon being kept therein, the same being a place of public resort, the* premises being kept by the said Henry T. Purdy for the illegal sale and illegal keeping of intoxicating liquors, and so the complainant saith that said Henry T. Purdy did then and there maintain a common nuisance.’-’</p> <p>In the Superior Court, on appeal from a sentence by the trial justice to a fine and imprisonment in the. house of correction, the defendant, for the first time, moved to quash the complaint, for the following reasons: 1. Because no jurisdiction was legally conferred on the trial justice, from whose judgment and sentence the appeal in this case was taken, to take final jurisdiction of said complaint, and to try and pass sentence on said defendant for the offence therein set forth, and so this court hath no jurisdiction of said complaint on appeal. 2. Because it is not alleged in said complaint that the building therein mentioned was used for the illegal keeping or sale of intoxicating liquors. 3. Because the place is not alleged with sufficient certainty. Pitman, J., overruled the motion.</p> <p>At the trial, the complainant was called as a witness by the government, and testified that in July, 1886, he had a conversation with the defendant, in which the defendant told him that, if he would go no further with a complaint then pending against him for the violation of the law relating to intoxicating liquors, he, the defendant, would not sell any more. The defendant seasonably objected to this evidence, but, it appearing that the defendant occupied the premises mentioned in the complaint on trial before and since' the date of the conversation, the judge admitted the evidence. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Tax—Real Estate—Abatement — Easement—Cloud upon Title—Water Company.</p> <p>A water company acquired title in and to the waters of a pond, and to a permanent dam and sluiceway connected therewith, and took possession thereof. Held, that, even if the title was to an easement only, a tax was properly assessed to it for the dam and sluiceway as real estate, and that its sole remedy for any excess was by an application for an abatement.</p>

<p>Tort for obstructing tbe station grounds of the plaintiff at Brockton. At the trial in the Superior Court, before Thompson, J., evidence was introduced tending to prove the following facts.</p> <p>The plaintiff is a railroad corporation, with all the powers and subject to all the duties of such corporations in this Commonwealth, and Brockton is one of the largest stations upon its road. It had been the practice of the defendant and other owners of job wagons, for several years prior to August 1, 1886, to go to the Brockton station to wait for trains, and to ascertain if the passengers had any baggage or other merchandise for them to carry. The plaintiff, on or about August, 1886, made a contract with the firm of Porter and Sons, of Brockton, to provide means for carrying all baggage and merchandise -brought, by incoming passengers to such places in the city as they might desire, at their expense. Afterwards, the plaintiff, through its stationmaster at Brockton, and by the order of its general manager and also of its division superintendent, but not by any by-law or vote of its directors or stockholders, notified the defendant and all other owners of job wagons not to come upon the plaintiff’s grounds at Brockton to solicit baggage or merchandise from incoming passengers, and informed them of the contract made with Porter and Sons, but allowed them, however, to come to the station to deliver such baggage and merchandise, and to take away such as they might have previous orders for. The defendant after receiving this notice continued to come upon the premises, and to solicit baggage and merchandise upon the platform of the station from passengers upon the arrival of trains, and refused to depart therefrom when requested by the plaintiff’s agents, though not there to deliver baggage or merchandise for outgoing passengers, or to take it away upon orders received elsewhere.</p> <p>Upon these facts, the judge ordered a verdict for the plaintiff, and reported the case for the determination of this court. If the verdict was correct, judgment was to be rendered thereon; otherwise, judgment was to be entered for the defendant.</p> <p>The case was argued at the bar in October, 1887, and after-wards was submitted on the briefs to all the judges.</p>

Contract to recover for a breach of a warranty of quality of certain soap sold by the defendant to the plaintiffs, and of a promise to advertise it. Writ dated July 12, 1886. At the trial in the Superior Court, before Blodgett, J., there was evidence tending to prove the following facts. The plaintiffs, who did business under the name of M. S. Ayer and Company, were wholesale grocers in Boston, and the defendant was a soap manufacturer in Buffalo, New York.

<p>Carrier — Damages — Evidence —• Hearsay — Appraiser’s Report.</p> <p>The report of an appraiser, since deceased, to an insurer, as to the damage to goods while in the hands of a carrier by sea, is inadmissible in an action by the owner against the carrier to recover damages therefor.</p> <p>The goods were six cases of woollen dress goods, invoiced at $3,510.11, and all the contents of three, worth not less than $1,600, and -varying proportions of them in the other three, were damaged by salt water and soda ash. Held, that a jury would he warranted in finding, as a matter of common experience, that damage of such a nature to such goods could not he less than $500.</p>

Contract to recover for damage to certain packages of walnuts belonging to the plaintiff, while being carried in the defendant’s steamship Samaria. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court, in substance as follows.

Three writs of entry, dated June 14, 1884, to recover adjacent parcels of flats lying in the bed of Muddy River Creek, an arm of the full basin of the Back Bay in Boston. The cases were tried together in the Superior Court, without a jury, before Thompson, J., the only evidence introduced being the report of an auditor to whom the cases were referred. The evidence tended to show the following facts.

<p>Personal Injuries — Invitation to enter Premises — Licensee— Trespasser.</p> <p>A person, wishing to consult a surgeon, whom he erroneously supposed to he attached to a foreign steamship, about bringing his family to this country, went to her wharf on a day of the week other than that when only it was open to the public in the gatekeeper’s discretion. Upon finding the gate open, he went in with a companion, without objection, and reached her deck by a freight gangway. There a supposed officer met them, who said, “ Well, gentlemen,” and who, after the reply, “ Good day, please direct us to the doctor’s cabin,” pointed along a covered passageway, saying, “ Go along that passage, and it is a little beyond the end of it.” Thereupon he followed his companion along the passageway, and, as he was emerging therefrom, upon his companion saying, “Look at those fellows down there,” he turned his head, and almost immediately was struck in the back and knocked into the hold by a bag of flour about to be lowered through an adjoining hatch, at which the vessel was being loaded. Held, that the plaintiff was a mere licensee, if not a trespasser, and that he could not recover of the owner of the vessel for the injuries thus sustained.</p>

<p>Contract on a poor debtor’s recognizance, entered into by David Lockhead as principal and by the defendant as surety. Trial in the Superior Court, without a jury, before Thompson, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Lockhead, against whom judgment had been recovered by the plaintiff, and who was duly arrested on execution, gave notice of his desire to take the oath for the relief of poor debtors, and an examination was had before a master in chancery, who continued it until May 20, 1886, and again until June 2,1886. On June 1, 1886, the magistrate, who intended to be absent on June 2, 1886, notified the plaintiff and Lockhead’s attorney by a notice, which was received by the plaintiff on June 2, 1886, at about six minutes before nine o’clock A. M., that the examination was further continued until June 9, 1886, at nine o’clock A. M. The bill of exceptions recited, that “ the record of said magistrate was made up on the first day of June, A. d. 1886, and showed said case continued until June 9, 1886”; but a copy of the record appended thereto set forth under the word “adjourned ” the following entries only: “ May 20th, ’86, 9 A. M. June 2d, ’86, 9 A. M. June 9th, ’86, 9 a. m.” On .June 9, 1886, Lockhead appeared before the magistrate, and, as the plaintiff did not appear within the hour’, took the oath for the relief of poor debtors, and was discharged from arrest.</p> <p>The defendant asked the judge to rule that the plaintiff could not recover; but the judge refused so to rule, and ruled that the magistrate had no authority on June 1, 1886, to continue the hearing until June 9, and found for the plaintiff. The defendant alleged exceptions.</p>

<p>Bill in equity, filed December 23, 1887, by the trustee under tbe will of Cornelia Loring, against a nepbew and the wives, children, and grandchildren of deceased nephews of the testatrix, for instructions as to the disposition of a trust fund.</p> <p>The bill alleged that Cornelia Loring made a will, dated October 5, 1874, which, after providing for the payment of small legacies to various persons, proceeded as follows :</p> <p>“ Fourteenth. I give to my brother-in-law Nathaniel Goddard the sum of three thousand dollars out of the property held by him for my benefit under the provisions of an indenture, dated June 29th, 1850, signed by him and by my late husband Charles G. Loring and myself.</p> <p>“ Fifteenth. I also give to said Nathaniel Goddard ten thousand dollars out of said property, in trust to invest the same and to pay over the net income thereof to Mary S. Fuller, wife of Henry W. Fuller, during her life, and upon her decease to pay over the principal to her daughters then living, share and share alike, the issue however of a deceased daughter to take a share; and I direct that no bond or sureties on his official bond shall be required of him, as such trustee, and the remainder of said property I give to my son George A. Goddard, or in the event of his decease in my lifetime leaving no wife or children, one half of said remainder to the heirs at law or next of kin of his father at the time of the decease of said George, and the other half to the President and Fellows of Harvard College. In the event of the decease of my son in my lifetime leaving a wife or children, I give the income of the whole of said property to his wife for her life, and, subject only to said life estate in said income, I give the whole of said property to said children, or failing such children I direct that the same -be divided as aforesaid. It is my will that none-of the legacies given in the preceding clauses shall be paid out of the said property held by Nathaniel Goddard, but in case the available funds which-1 shall leave at my decease (other than those named in the first clause of this will) shall be insufficient for the payment of said legacies, I give and appropriate out of the income or principal of the residue of my father’s estate now held in trust under the terms of his will whatever sums may be needed to pay said legacies.</p> <p>“ Sixteenth. I give from the rest and residue of my estate, or from what I have the power of appointment, ten thousand dollars to my son George A. Goddard in trust, to keep the same invested, and to pay so much of the net income therefrom during the lives of my nephews and nieces living at my decease and the survivor of them, to those or the issue of those that are most needy, at such times as he thinks best, he keeping invested any income not divided by him, and upon the death of the survivor to divide the principal and any accrued income amongst the descendants of my nephews and nieces who in his judgment may be most in need of the same. I authorize him by will or otherwise to appoint his successor in said trust. Said trustees to be exempted from giving bonds. I give to the said George A. Goddard all the rest and residue of my estate, together with my share of the principal of the residue of my father’s estate now held in trust under his will, and my share of the income thereof during the lifetime of my brothers, subject to the provisions contained in the last preceding clause, and any other property of which I have the power of disposing by will: but in the event of my son’s decease in my lifetime, leaving no wife or children, I give one half of said residue and other property to the heirs or next of kin of my son on his mother’s side, and one half to the President and Fellows of Harvard College- to be applied by them to the education of young women in such way as may seem best to them. And in case of the decease of my son in my lifetime leaving a wife or children, I give the income of the whole of said residue and other property to his wife for her life, and, subject only to said life estate in said income, I give the whole of said residue and other property to said children, or failing such children I direct that the same be divided as aforesaid.”</p> <p>The bill also alleged that at the time of the execution of the will, and when it was admitted to probate, which it was agreed was on October 25, 1875, there were living the following persons, either relations by blood or connected by marriage with the testatrix: Francis Amory, a nephew; George K. Amory, a nephew, and Adelaide Amory, his wife; Ellen D. Amory, the widow of John L. Amory, a deceased nephew; an unmarried brother, aged about sixty-six years; and a married brother, who was about sixty years of age and whose wife was about sixty-four years of age.</p> <p>The bill further alleged, that the wives of the nephews were not relatives by blood of the testatrix; that Adelaide Amory was divorced from George K. Amory in or about 1881; that George K. Amory had by her two children, who were minors, and both of whom were living; and that John L. Amory left several children by Ellen D. Amory, one of whom was a minor, and another of whom had several children, all of whom were minors; and that Adelaide Amory, if within the clause provided for in the sixteenth section of the will, was one to whom the trustee should from time to time mate payments from the fund therein created.</p> <p>The prayer of the bill was that the plaintiff might be instructed as to whether he had authority to pay any part of the income of the trust fund to Adelaide Amory or Ellen D. Amory.</p> <p>The answer of Adelaide Amory and Ellen D. Amory admitted the allegations of the bill, and contended that they were nieces of the testatrix, and that the trustee had the right to pay to them portions of the trust fund or of the income.</p> <p>The answers of the other defendants also admitted the allegations of the bill, but contended that Ellen D. Amory and Adelaide Amory were not nieces of the testatrix, and were not included within the provisions of the sixteenth clause of the will, and that the trustee had no power to pay any portion of the fund or of its income to them.</p> <p>Hearing on the bill and answers before W. Allen, J., who reserved the case for the consideration of the full court.</p>

<p>Indictment. After the former decision, reported 145 Mass. 392, at a hearing in the Superior Court, before' Sherman, J., on a motion for a new trial on the ground that “ some of the jurors were unduly influenced and expressed a decided opinion of the guilt and innocence of the defendant before the evidence on either side of the case was concluded, and before the arguments of counsel were made, and before the jury were charged on the law and facts of the case,” evidence was offered in substance as follows.</p> <p>One Ross testified that he was one of the jurors who tried the case against the defendant at the April term, 1887; that during the trial Daley, another juror, and himself went into a saloon on Hanover Street in Boston to get some refreshments, and talked about the trial; that the barkeeper asked if they were talking about the White case, and, upon an affirmative answer, added, “Well, I guess the fellow is guilty fast enough”; that, two or three days before the trial began, he heard the case talked about in the court-room; that it was said, but not to him, that the defendant had been tried before, and had secured a new trial by getting a false affidavit from a juror; that he talked with French, another juror, about the case on the second or third day of the trial, on their way to the court-house; that he suspected that French was favorably inclined to the defendant, and was disposed to hang the jury, regardless of the evidence; that he told French that they had better be careful, as the jurors were being watched, that’ if he did hang the jury he would report him to the court, and that he believed that the defendant was guilty; that he had several talks with French outside of the court-house and before the evidence was concluded; that he had never been on a jury before, and thought he was doing his duty; that the presiding judge cautioned the jury not to talk about the case until the evidence was closed, nor allow other persons to talk to them about the case; and that he was troubled at the part he had taken, and in accordance with the advice of a friend, a member, of the bar, he made an affidavit on August 23, 1887, reciting the above facts.</p> <p>Daley testified that he was a member of the jury that tried the defendant; that one day he met Ross, while the case was being tried, and after the adjournment of the court; that they went into the saloon on Hanover Street, and each had some beer and refreshments; that while they were there Ross began talking about the case to him; and that he did not hear the barkeeper make any remark about it.</p> <p>French testified that he was one of the jurors who tried the defendant; that, a day or two before the trial commenced, he overheard a man saying that the defendant had tampered with the jury in a previous trial; that the remarks were not addressed to him, and he did not know who made them; that on the second day of the trial, after the jury were dismissed, and as he was passing out through the corridor of the court-house, he heard some one say, “ There will be no disagreement of the jury in this case,— the damned fool had better have skipped to Canada, and not stay here thinking he could get out of it,—he can’t doctor the jury as he did the jury ” in the previous trial; that he did not know who made these remarks; that during the trial both the foreman of the jury and Ross said that the defendant was guilty; that during the trial Ross charged him with being a kicker and favorable to the defendant, and threatened to report him to the court and the officers if he voted for acquittal; and that during the trial the foreman said that the defendant was a damned rascal and should be convicted.</p> <p>The judge ruled that the testimony of jurors as to conversations between them during the trial, whether in the court-room or out of court, was inadmissible to impeach their verdict, and excluded their evidence on that subject; and that, as matter of law, the defendant was not entitled to a new trial, and in the exercise of his discretion declined to grant it; and, at the request of the defendant, reported the case for the determination of this court.</p>

<p>Bill in equity, filed February 4,1885, in the Superior Court, to reach and apply, in payment of a promissory note given by the defendant Randall to the plaintiff, a United States Treasury draft payable to the order of Randall and in the possession of the defendant Manning. The prayer of the bill was for an injunction to prevent the delivery up or the negotiation of the draft by Manning, who was a resident of Boston, and upon Avhom personal service was made. Service by publication only, in accordance with an order of notice duly issued, was made upon Randall, who was a resident of New York. The defendants, of whom Randall appeared specially, demurred to the bill for want of jurisdiction, on the ground that the debt was barred by the statute of limitations and for want of equity. The demurrers were overruled, and the defendants appealed to this court. Hearing before Barker, J., who found the following facts.</p> <p>The draft, which Avas for $2,646.02, the amount of an award to Randall by the Court of Commissioners of Alabama Claims, was made payable to him at the United States Sub-Treasury in Boston, and was delivered to Manning as his attorney of record. When an injunction was issued, on February 4,1885, as prayed for, and, on February 6,1885, was personally served on Manning, the draft was in his possession and control in Boston, and had not been indorsed by Randall. Thereafter Manning, upon the payment to him of $798.81, the amount of his lien thereon, as mutually agreed by them, for his services and disbursements in securing the award, sent the draft to Randall, and procured his indorsement of it and its subsequent payment at the Sub-Treasury on March 28, 1885, the balance of $1,852.21 being handed over to Randall or his agents. On January 22,1886, a process of attachment for contempt was issued against Manning, as it appeared that he had violated the injunction wilfully and with full knowledge; but at that time he was without, and has continued to remain without, the limits of the Commonwealth, and no service of the order of attachment was ever made upon him.</p> <p>On January 18, 1869, Randall, then a resident of Maine, for a good consideration, made the note in question, payable to the order of the plaintiff, who was also a resident of that State and has ever since resided there. But on November 1,1874, Randall removed his residence and domicil to New York, and since that time he has never been within the State of Maine. An action upon this note was not barred by the statute of limitations of Maine (Rev. Sts. of Maine of 1883, c. 81, § 103), by which actions upon promissory notes must be brought within six years after the cause of action accrued, and actions brought thereafter are barred, except that, “ if a person is absent from and resides out of the State after a cause of action has accrued against him, the time of his absence shall not be taken as a part of the time limited for the commencement of the action.” The statute of limitations of New York, by which actions upon such notes must be brought within six years from the time when the cause of action acQrued, was a bar to an action on the note in that State; but as the plaintiff had never resided in New York or elsewhere without the State of Maine, an action against Randall was not barred by the law of another State or country while the plaintiff had been a resident therein.</p> <p>The plaintiff agreed, in case he was entitled to recover in the suit, to share proportionately the sum recovered by him with one Willard, who simultaneously had filed another bill in equity to apply the same draft to the payment of a debt due to him by Randall.</p> <p>The defendants requested the judge to rule that the case was not within the equity jurisdiction of the Superior Court; that an action on the note was barred by the statute of limitations; that the draft was not “ goods, effects, or credits, or right, title, or interest ” of Randall, such as could be reached in this proceeding; and that a United States Treasury draft could not before payment be reached by an equitable trustee process or otherwise. The judge refused so to rule, made a decree that Manning, because of his contempt in disposing of the draft, should pay out of his own goods and estate to the plaintiff and to Willard, in their proper proportions, the balance of the draft oyer and above the amount of his lien, with interest thereon from March 28, 1885, to the date of the decree; and reported the case for the determination of this court.</p>

Two actions OP tort. The first case was for causing the death of Thomas Daley, the plaintiff’s intestate, and the second case was for his suffering before he died.

Tort for removing a fence at the crossing of Vine Street, a private way in Somerville, by the plaintiff’s railroad. Trial in the Superior Court, without a jury, before Pitman, J., who found for the defendant. The plaintiff alleged exceptions to a refusal of the jndge to rule that there was not evidence sufficient to warrant a finding that the defendant had a right of way, as claimed by him, across the railroad at Vine Street. The evidence appears in the opinion.

<p>Principal and Agent — Contract — Illegal Consideration — Insolvent Debtor — Evidence.</p> <p>A creditor of an insolvent debtor guaranteed payment of part of another creditor’s claim, upon the latter’s agent agreeing, without his principal’s knowledge or authority, to vote for a certain person as assignee; and the principal accepted the guaranty and brought an action thereon. Held, that the action could not be maintained.</p> <p>At the trial the agent’s power of attorney was excluded, there being no evidence that the defendant had seen it or knew of its contents, and evidence of how the plaintiff actually voted for assignee was admitted, the jury being instructed to disregard it as immaterial. Held, that the plaintiff! had no ground of exception.</p>

Bill in equity alleging that the plaintiffs were the “ owners of the claims for the capture ” of the schooner Mermaid, at the time of her capture on the high seas by an insurgent cruiser; that “ judgment was rendered in the Court of Commissioners of Alabama Claims, at Washington, D. C., for the oil catch of the said schooner Mermaid, that is, the value of the oil on board at the time of her capture, to be received and distributed by the said owners according to law among the…

<p>Assignment — Creditors — Trust.</p> <p>A debtor conveyed a large portion of his real estate to his son, who thereupon signed an agreement, which, after reciting the financial embarrassment of the debtor, stated that the conveyance was “ for the purpose of having the same applied in liquidation of his indebtedness, irrevocably, in such manner as I shall deem best, . . . and leaving the time and manner of the sale of said real estate fully at my discretion, and the same to be managed and sold without any interference of” the debtor, and provided for the payment to the debtor of any surplus from the proceeds of the real estate, after deducting the expenses and the amounts paid to creditors. Hdd, that no trust was created in favor of general creditors which could be enforced in equity.</p>

<p>Personal Injuries — Railroad Premises — Licensee— Trespasser.</p> <p>If a person enters a railroad station in the evening to take a train, and, after finding that the last train has gone, remains therein for his own convenience several minutes longer, during which the station-master, the usual closing time having arrived, puts out the lights, he becomes at most a mere licensee, and cannot recover for injuries sustained in leaving the station by reason of the extinguishment of the lights.</p>

<p>Actior on the Pub. Sts. c. 175, to recover possession of a parcel of land in Lowell. At the trial in the Superior Court, before Pitman, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions, the substance of which appears in the opinion.</p>

Contract, in two counts, to recover the price of a dwelling-house erected on land in which the first-named defendant had a right of dower, and the other defendants, her daughters, owned the fee.

<p>Devise — Trust — Income — Residue — Heir at Law.</p> <p>A testator gave four estates to trustees, who were .to pay the net income of two estates to two sons, whose financial ability he seemed to doubt, “ during their joint lives, one half to each, and to the survivor during his life,” the income of the other two estates to his wife during her life, and, at her death, the income of the four estates to the two sons, “ one half to each during their joint lives, and upon the decease of either ” during the life of a third son, “ then to pay one fourth part of said net income of said four estates . . . during the life of the survivor” to the third son, “and the other three fourths to the said survivor so long as both he ” and the third son should live. The fee of the estates was given to the issue of the two sons, or of the survivor if either should die without issue, and, if neither should leave issue, to the testator’s “then heirs at law”; any unexpended income of the trust fund, at the death of either of the two sons, was to be disposed of as he should appoint, otherwise it was to be applied to the benefit of the survivor, his family or children; and the residue of the estate was given to the third son. Held, that the survivor of the two sons, the wife and the third son having died, was entitled to the whole of the income of the trust fund during his life.</p>

Petition, filed on July 14, 1886, by tbe libellee in a divorce case, alleging that, while the libel, which was filed September 2, 1884, and a cross libel, filed by her in April, 1885, were pending, an agreement was filed in both cases, on July 10,1885, by counsel, which provided for “alimony during the pendency of the libels, at the rate of forty dollars per week, from and after April 16, 1885, to be paid once in four weeks ” by the libellant to the libellee; that the sum…

<p>Complaint alleging that the defendant kept and maintained a common nuisance, to wit, a tenement in Quincy, used for the illegal sale and illegal keeping of intoxicating liquors on May 1, 1887, and on divers other days and times between that day and August 20, 1887. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant was, during the time alleged, a retail druggist, and kept a drug store in Quincy, and had no license as such druggist or otherwise to sell intoxicating liquors. Evidence was admitted, against the defendant’s objection, which tended to show that, between June 16,1887, and August 20,1887, sales of pure alcohol for medicinal, mechanical, and chemical purposes were-made on the premises, without certificates being made by the purchasers stating the use for which the alcohol was wanted. The government offered no evidence of sales on the premises of other intoxicating liquors than alcohol during this time.</p> <p>The defendant requested the judge to rule: 1. Upon the evidence, the defendant cannot be convicted of keeping a common nuisance, as charged in the complaint. 2. The defendant was not required to have a certificate of the purchaser in order to sell alcohol for medicinal, mechanical, or chemical purposes, nor to keep a book, nor to conform to the requirements of the St. of 1887, c. 431, §§ 2-4. The judge declined so to rule, but instructed the jury, that, if they were satisfied that the defendant, for any substantial period of time between June 16, 1887, and August 20, 1887, maintained the premises for the unlawful sale of intoxicating liquors, he was guilty; and that sales of pure alcohol for medicinal, mechanical, or chemical purposes, without the certificate described in the St. of 1887, c. 481, § 2, would be illegal, and evidence upon which the jury would be justified in convicting the defendant of the offence charged.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Contract to recover for breach of the covenant of warranty-in a deed of land given by the defendants. Writ dated March 15, 1886. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions in substance as follows.</p> <p>On June 18, 1881, the defendants, Daniel Rodden and Margaret Rodden, by a deed, which contained the usual covenant of warranty, conveyed to the plaintiff a parcel of land in Boston, with the buildings thereon, bounding and describing it, so far as material, as follows: “ Northeasterly by Endicott Street, nineteen feet and eight inches, including the passageway, three feet wide, running southwesterly from said street, northwesterly by land and building now or late of Paine S. Higgins, on a line through the centre of the partition wall, forty-two feet nine inches.” The original deed of the premises, dated May 23, 1843, from Josiah Brown to one Harris, the defendants’ predecessor in title, contained the same description.</p> <p>The wall first mentioned in the deeds as a partition wall was built by Paine S. Higgins, the adjoining owner, entirely on his own land, and the wall and the land under it were owned at the time of the conveyance from the defendants to the plaintiff, and ever since had been owned, by Hugh McLaughlin, who was the grantee of Higgins. This wall was eight inches in thickness, about twenty-eight feet in length and thirty feet in height, and was entirely covered on the end on Endicott Street by the front wall of the house of McLaughlin, and the only connection of the wall with the building on the lot described in the deed from the defendants to the plaintiff was that the said building as it stood at the time of the conveyance was supported on that side by the wall, and it had been so supported for more than thirty years. Adjoining the wall on its southeast face and running the whole depth of the lot was the passageway described in the deed, which was covered, and five and a half feet in height, the fee of which was conveyed to the plaintiff. The southeast face line of the wall was coincident in its whole length with the northwest line of this covered passageway. The defendants had, at the time of this conveyance to the plaintiff, acquired by adverse, use the right to use the wall for the purpose of supporting the building standing on the lot conveyed as it then stood, and without any right to place any additional burden thereon, and without a right to tie into or disturb McLaughlin’s front wall, which covered the end of it.</p> <p>The defendants contended, and asked the judge to rule, that by a proper construction of the deed from the defendants to the plaintiff the boundary line was upon the northwest side iof the southeast line of McLaughlin’s land and buildings. The judge refused so to rule, but ruled that, by the deed from the defendants to the plaintiff, the boundary line upon the northwest side was the middle line of the partition wall.</p> <p>One Stephen Brennan was called as a witness by the plaintiff, and was asked the following question: “ Have you made estimates of the expense of erecting the present building upon the lot as it is described in the deed to the plaintiff, and also an estimate of the expense of erecting it on the land which the plaintiff actually owns, i. e. throwing out the one half of the partition wall and land under-it, so as to get at the difference between these two expenses ? ” The defendants objected to this question; the bill of exceptions recited that “ the question was admitted, and the witness allowed to answer,” but did not disclose what the answer was.</p> <p>It was conceded by the defendants that just prior to the date of the writ in this action the plaintiff had been evicted by McLaughlin from a strip of land four inches wide lying underneath the partition wall and between the northwest line of the covered passageway and a line running through the centre of the partition wall, which strip was the only land for which the plaintiff sought to recover damages. It appeared in evidence, that the plaintiff in August, 1885, before the eviction, had erected, resting it on the partition wall to the extent of the four inches which she then claimed to own, an additional story to her building, which McLaughlin afterwards compelled her to remove; and that she did this after she had received notice, and during the pendency of a bill in equity filed against her by McLaughlin to restrain her from building upon the wall. The defendants asked the judge to rule that the plaintiff could not recover any sum for the value of the new structure; but the judge refused so to rule, and instructed the jury as follows: “ If the plaintiff acted in good faith in the erection of that additional story, believing that she was the owner of this strip of land, as well as the other land about which there is no dispute, in assessing damages the jury should give the plaintiff the value of that portion of the structure which stood upon this strip of land, and that value would not be simply the value of the material, having in view how that part of that structure was related to the rest of the building upon the land.”</p> <p>The defendants asked the judge to instruct the jury that there was no covenant in the deed that the wall in question was a party or partition wall. The judge thereupon gave the instruction, adding, that it was adjudicated in McLaughlin v. Cecconi, 141 Mass. 252, the report of which case was in evidence, “ that so far as the old building was concerned the plaintiff had a right to use that wall as a party wall, and that right had been acquired by use for thirty years.”</p> <p>The building on the land conveyed by the defendants to the plaintiff was a structure of brick, the front and rear walls of which were thirty feet in height, and the ridgepole of the building was some sixteen feet higher than the front and rear walls. The defendants asked the judge to instruct the jury that, u under the laws regulating buildings in the city of Boston in force at the time the plaintiff began the erection of her building, which was subsequent to the enactment of the St. of 1885, c. 874, the plaintiff could not use the said wall for building purposes, and that the plaintiff could not recover of the defendants any damages for loss of building rights on said wall.” The judge declined to give this instruction, and instructed the jury as follows : “ The plaintiff says that she has been greatly injured because of the failure of title to a narrow strip of land, and the right to use that strip as she pleases. The defendants say, that, if she owned this strip of land, she could not put up a building to the height of the present building, using simply the four inches of land and erecting a building upon that wall only four inches thick, because that is prohibited by the statute relating to building in the city of Boston. That is a matter for your consideration, but it would not follow that the land was not of substantial value for that reason.”</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>The first case was a writ of dower, dated October 13, 1885, by the widow of Hiram Peaslee against his devisees. Plea, 1st, that the marriage between the demandant and the devisor was invalid; 2d, that an antenuptial contract between them constituted an equitable defence to the action. Replication, that the demandant’s signature to such agreement was secured by fraud. Trial in the Superior Court, before IIammond% J., who allowed a bill of exceptions, which, so far as material, were as follows.</p> <p>It appeared in evidence that the demandant previously was married to Andrew C. Rowe, who was living on January 20, 1878, the date of her marriage to Hiram Peaslee, and that the demandant obtained a divorce from bed and board against Rowe, on November 4, 1868, in the Supreme Judicial Court holden within and for the county of Middlesex. The demandant introduced in evidence the record of that court, which recited that personal service of the demandant’s libel was made upon Rowe, and that the divorce was granted to her upon his default ; that on April 25, 1872, she filed a petition that the divorce might be made absolute; and that a decree was made, which, after reciting the prayer of the petition, set forth that “ the petitioner appears, and the court, on this twenty-fourth day of May, A. D. 1872, do grant the prayer of said petition. It is therefore, on this twenty-fourth day of May, A. D. 1872, considered by the court that the decree of divorce from the bond of matrimony heretofore entered into between the said Abby D. Rowe and the said Andrew C. Rowe be made absolute”; but the record did not disclose any order of notice or notice to Rowe of this petition. The judge ruled that, as matter of law, the demandant was lawfully married to Hiram Peaslee.</p> <p>The antenuptial contract, dated January 17, 1873, was duly executed and recorded, and after reciting the intended marriage of the parties, and that Peaslee was possessed of land described, with the buildings thereon, situated in Plaistow, New Hampshire, on the northerly side of a certain road, set forth that Peas-lee, in consideration of ten dollars paid to him by the trustee, receipt of which was acknowledged, “ doth hereby give, grant, bargain, sell, and convey” all that land to a trustee, upon the special trusts, “ that from and after the solemnization of the said intended marriage, and during the lifetime of the said Hiram Peaslee, the said trustee shall hold the said estate to and for the sole use of the said Abby D. Rowe, and shall empower her to receive for her own use "all the rents, income, and profit arising from or out of the said trust estate ; and that in case of. the decease of the said Hiram Peaslee, after the solemnization of said marriage, and during the life of the said Abby D. Rowe, the said trustee shall forthwith convey and transfer to said -Abby D. Rowe, in fee simple, said trust estate, and shall execute and deliver all such deeds and instruments as may be needful to transfer the said trust estate unto the said Abby D. Rowe, her heirs and assigns forever; and she stipulates and agrees to receive said transfer, and the same shall be in full satisfaction of her dower, or thirds, which she may claim to have in any lands, tenements, or hereditaments whereof or wherein he, the said Hiram Peaslee, shall at any time during his life be seised or possessed.”</p> <p>The demandant testified, that in April, 1872, Peaslee, when he proposed marriage to her, promised to give her $5,000 and a farm worth $5,000; that he pointed out to her, as the farm that he proposed to give her, a farm at Plaistow, consisting of lands on both sides of the road, as well as other land in the vicinity, and said that he had once sold this farm for $5,000, afterwards buying it back and laying out a large sum in repairs on it; that, at the time the agreement was signed by Peaslee and herself, the demandant had no knowledge of its contents except from statements by Peaslee; that she began to read it at his lawyer’s office, to which he had taken her, and had read not quite half of it, as she thought, when Peaslee, who was walking the floor and looking out of the window, remarked that his horse would not stand, and told her to “ hurry up and read it as soon as you can ”; and that she said to him, “ I suppose it is just as you talked,” and he said, “ Yes,” and she signed it. There was evidence that the entire farm was worth about $1,600, and that the portion described in the antenuptial agreement was a part only of the farm, on the northerly side of the road ; that the statements of Peaslee as to the value of the farm were false, and that the portion described in the agreement was worth less than $1,000.</p> <p>Isaac C. Pear testified that the demandant told him, in a conversation had with her after the engagement, that she had had a proposal of marriage from Peaslee, and that Peaslee proposed to make a settlement upon her; that Peaslee then came into the room, and joined in the conversation; and that Peaslee said that he proposed to settle on her $10,000, of which the farm in Plaistow was to be a part. Ellen I. Smith testified that Peaslee told her, but not in the demandant’s presence, that, “ if he married Mrs. Rowe, he was going to give her ten thousand dollars in money; he was going to give her five thousand dollars in money and five thousand in property, the farm included, I supposed.” The tenants objected to the admission of this evidence; but the judge admitted it, saying he would leave it to the jury to say whether this was an expression of intention, or the admission of an oral contract already made, and that, so far as it was a mere expression of his intention, the jury should disregard it.</p> <p>The tenants contended that, if the demandant’s signature to the antenuptial contract was obtained by fraud, she had ratified and confirmed it after a full knowledge of its contents and effect, and offered evidence of various acts and declarations of the demandant’s, extending from her marriage with Peaslee until after his death, and tending to show such a ratification. This evidence tended to show, among other things, that the demand-ant, during coverture and after she knew the contents of the antenuptial contract, took possession of the farm in Plaistow, orally leased it, took the rents and profits, paid the taxes, and tried to sell it; and that the demandant having in writing, on October 27, 1875, consented to separate from Peaslee, and agreed for $5,000 never to call on him for further assistance, Peaslee, on October 29, 1875, made a promissory note payable to one as trustee, from whom he took a declaration of trust of even date, reciting that the note was to be held for the benefit of the demandant during Peaslee’s life, and that, at his decease, the amount was to be collected from his estate and paid to her, if then his widow. The judge excluded all evidence of acts or declarations during coverture tending to show such ratification. All the acts and declarations of the demandant after the death of Peaslee tending to show ratification were admitted, and instructions as to their effect were given, which were not excepted to.</p> <p>The tenants offered evidence tending to prove that, at the time of Hiram Peaslee’s death, there was a tenant occupying the house and using the furniture of the demandant, and that the demandant collected rent on account of the house' and furniture for the month following his death; that at the time she collected it, she had no knowledge or information that she would thereby forfeit her right of dower, and that she was ready and willing to pay the money into court, for the benefit of whomsoever it might concern; and during the trial the demandant tendered to the tenants’ counsel, and paid into court, the sum of eighteen dollars, which was more than the amount received for the rent of the house and the use of the furniture, and interest on the same.</p> <p>The tenants introduced evidence tending to prove that the trustee under the antenuptial agreement died before Hiram Peaslee; that an administrator of such trustee’s estate was duly appointed, who after Peaslee’s death duly obtained a license to convey the estate contemplated by the agreement to the demand-ant ; that a deed duly executed by such administrator was tendered, at the tenants’ request, to the demandant, and refused by her. Section 10 of the General Statutes of New Hampshire, of 1878, c. 205, put in evidence by the tenant, was as follows: “When any person deceased shall, at the time of his death, hold any real estate in trust for the use of another, and there is no dispute as to the trust or title of the deceased therein, the judge for the county in which such real estate is situate, upon application and notice, may license the executor or administrator of such deceased person to convey such real estate to the person for whose use the same was holden in trust by the deceased, or to such other person as may be designated by said judge.”</p> <p>There was evidence that Hiram Peaslee died on July 11, 1885, testate; that his will contained the following clause: “ I make no provision, in this my last will, for my wife, Abby D. Peaslee, because I have provided for her in an antenuptial contract and deed, dated January 17th, A. D. 1873 and that the demandant filed a waiver of the provisions of his will on August 6, 1885, and made a demand for dower on August 29, 1885; but there was no other evidence of a rescission or of an election to waive the contemplated contract, or that the demandant had ever offered to release her rights under it to the devisees, or requested the trustee to do it.</p> <p>The tenants requested the judge to instruct the jury, in substance, that upon all the evidence the demandant could not recover; that there was no valid marriage between the demandant and Peaslee ; that there Avas no evidence of an election by the demandant to waive the jointure; that the contract was not absolutely void, but voidable; that the contract was not voidable at law for the fraud alleged by the demand-ant; that the demandant could not avoid the antenuptial contract for fraud, without first having returned all the benefits . that she had received under it; and that the- agreement could be ratified during the marriage.</p> <p>The judge refused so to instruct, but gave instructions that were not excepted to, save so far as they were inconsistent with the instructions requested. The jury answered the question, “Was'the demandant induced to sign the antenuptial contract by the fraud of her intended husband, Peaslee ? ” in the affirmative, and returned a verdict for the demandant; and the tenants alleged exceptions.</p> <p>The second case was a bill in equity, brought by the devisees of Hiram Peaslee to restrain his widow from prosecuting her action at law because of the antenuptial contract. The defendant demurred for want of equity. Q. Allen, J., sustained the demurrer; and the plaintiffs appealed to the full court.</p>

<p>Bill in equity, filed March 15, 1887, alleging that the defendant, who was the owner of letters patent of the United States, and the plaintiff, who was the owner of similar letters patent of the Dominion of Canada, executed the following instrument under seal.</p> <p>“ Memorandum of agreement made this sixth day of May, 1886, between William T. Messinger and George B. Adams, both of Cambridge, Massachusetts, which witnesseth as follows:</p> <p>“ Said Messinger agrees to furnish and deliver to said Adams, within three months from this date, one perfect working injector of the sizes one, two, three, four, five, and six, in place of the same number of said machines now in possession of said Adams, the said injectors to be tested under the following conditions, viz.: to be connected with street water-main and steam pressure varying from twenty to one hundred and fifty pounds ; to lift from four to twenty feet steam pressure varying from twenty to one hundred and fifty pounds. Upon delivery of said injectors, so tested, said Adams agrees to pay said Messinger (|500) five hundred dollars in cash.</p> <p>“ Said Messinger further agrees to furnish and deliver to said Adams, within six months from this date, one perfect working injector of sizes seven, eight, nine, ten, and twelve, which shall be tested under the same conditions as numbers one, two, three, four, five, and six, and also to permit said Adams to copy any drawings which said Messinger may make, or have made, of any of said sizes of injectors or alterations therein. Upon the delivery of said injectors, so tested, said Adams agrees to pay said Messinger for said sizes seven, eight, nine, ten, and twelve the list price according to catalogue now printed, with eighty per cent discount, and surrender to said Messinger his promissory note for $181.13, to order of George B. Adams, dated of even date herewith. The foregoing tests shall be made in presence of said Adams, or some person appointed by him for that purpose.</p> <p>“ By the term ‘ injector ’ in this agreement is meant the W. T. M. injectors for steam boilers made under and according to letters patent of the Dominion of Canada issued to said Messinger, dated August 1, 1884, and numbered 19,876, dated September 8, 1884, and numbered 20,162, and dated September 8, 1884, and numbered 20,164, and similar letters patent of the United States.</p> <p>“ Any and all improvements that said Messinger may make in injectors for steam boilers shall be, so far as the Dominion of Canada is concerned, for the benefit of said Adams, and whenever said Messinger shall take out any letters patent of the United States for said injectors for steam boilers, he or his heirs or assigns shall forthwith apply for letters patent of the Dominion of Canada, and upon receiving the same shall immediately, without any further consideration, assign and convey the same to said Adams or his legal representatives, and further that in any business or operation he may engage in under letters patent of the United States, or in any other business, he will not directly nor indirectly do any act to the prejudice of the said letters patent of the Dominion of Canada, or the monopoly thereby secured.</p> <p>“ Witness our hands and seals the day and year first above written. Wm. T. Messinger. (l. s.)</p> <p>Geo. B. Adams. (L. s.) ”</p> <p>The bill also alleged, that the defendant, since the date of the agreement, had taken out letters patent of the United States for improvements in such injectors, viz. Letters Patent No. 350,545, No. 350,546, and No. 350,547, all bearing date October 12, 1886 ; that the plaintiff had always been ready, and had offered specifically, to perforin the above agreement on his part; that the plaintiff had frequently applied to the defendant, and requested him to perform the agreement on his part, but he had refused and neglected to perform the same, or any part thereof; and that by reason of the peculiar nature and construction of such injectors, of which the defendant was the inventor, the plaintiff had been unable to supply himself therewith elsewhere, but could only obtain them at the hands of the defendant, and had suffered great and peculiar and unusual damage by reason of the defendant’s refusal to furnish them, and by reason of the defendant’s refusal to apply for and assign to him Canadian letters patent.</p> <p>The prayer of the bill was, — 1st, that the defendant might be decreed specifically to perform the agreement, and that for the purposes aforesaid all proper directions might be given and inquiries made; 2d, that there might also be an assessment of the damages sustained by the plaintiff by reason of the defendant’s neglect to perform his agreement, and that'the defendant might be ordered to pay the same ; and, 3d, that in the mean time the defendant might be restrained from alienating or encumbering his right to letters patent of the Dominion of Canada.</p> <p>The defendant demurred to the bill on the following grounds: “1. That the plaintiff has not stated such a case as entitles him to any relief in equity against the defendant. 2. That the plaintiff has a plain and adequate remedy at law. 3. That the agreement, specific performance of which the plaintiff prays may be decreed, is a contract for personal services. 4. That the specific performance, which the plaintiff prays may be decreed, requires the exercise of mechanical skill, intellectual ability, and judgment. 5. That the specific performance of said agreement involves the building of a machine embodying a patent. 6. That the securing of letters patent in Canada involves the action of officers of a foreign government, and cannot be the subject of an order for specific performance. 7. That it does not appear by said bill what relief the plaintiff prays for, and the plaintiff’s bill is entirely indefinite and uncertain.”</p>

<p>Contract to recover the costs and expenses of an action pending against an insolvent debtor. Trial in the Superior • Court, without a jury, before Pitman, J., who allowed a bill of exceptions in substance as follows. .</p> <p>The plaintiff entered the employment of the defendant as an operative in 1885, giving his residence as Boston, Mass. After-wards the plaintiff brought an action in the Municipal Court of the city of Boston against the defendant for such services, and attached the defendant’s property. After the entry of this action, the defendant petitioned himself into insolvency, and filed a schedule of his creditors, in which the plaintiff’s name did not appear, but the name of H. McKewan, of Boston, Mass., did appear for the amount then due to the plaintiff for such services. Before the action was tried, the defendant suggested his insolvency in the Municipal Court, and the plaintiff for the first time had notice thereof, whereupon the case was continued, and was still pending. The attachment in that action was not dissolved until the proceedings in insolvency were begun. Under the composition statutes, the defendant paid into court an amount sufficient to pay the plaintiff’s claim in full, .under the name of H. McKewan. The composition was duly carried out, and the defendant received his discharge on December 4, 1885.</p> <p>The last meeting of creditors for the proof of claims was held on November 5, 1885; but those creditors whose names appeared on the defendant’s schedule were allowed one year from September 23, 1885, the date of the first publication of notice of the insolvency proceedings, in which to prove their claims and receive their dividends. On December 4, 1885, the plaintiff, upon hearing that the defendant had received his discharge, offered to prove his claim in the Court of Insolvency against the defendant’s estate under his own name, and to receive for his services the dividend standing to the credit of H. McKewan, as well as to prove a claim for costs and expenses that had accrued in the action in the Municipal Court. The Court of Insolvency allowed the claim for the plaintiff’s services, and caused to be paid to him the sum standing to the credit of H. McKewan, but refused to allow or disallow his claim for such costs and expenses.</p> <p>The judge found that the plaintiff never received any notice of the meetings of the defendant’s creditors, except as stated, and that the amount sought to be recovered in this action consisted of the legal fees, costs, and expenses of the action pending in the Municipal Court, and the expenses of the custody of the property attached, and ruled, as matter of law, that the action could not be maintained, and found for the defendant; and the plaintiff alleged exceptions.</p>

<p>• Two ACTIONS OB' CONTRACT, upon an agreement under seal, dated July 10, 1883, and signed by Thomas F. McGann and by Byron A. Osgood, whq did business under the name of the Osgood Cash Car Company, by which McGann “ agrees to manufacture one thousand cash cars, to be made and finished in good substantial and workmanlike manner, . . . said ears to be made according to the style shown on a sketch or plan marked A, hereunto annexed; the wheels are to be three inches in diameter, and made of best quality of Babbitt’s metal and nickel-plated.” Osgood agreed to pay two dollars and a half for each car so made and delivered. This agreement contained minute specifications as to the material to be used in the rest of the car, and as to the method of manufacture, and bore the following indorsement:</p> <p>“ Boston, July 30, 1883. The plan described in the within contract, marked A, is omitted by consent of both parties, and for further description, for the form and style referred to, is shown in the style and form of the cars now in process of manufacture by Thomas F. McGann for the Osgood Cash Car Company, which style was referred to in said plan.”</p> <p>The two cases were tried together in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, which, so far as material, is as follows.</p> <p>Osgood contended that MeGann did not finish the cars in a workmanlike manner and build the wheels of the cars of the “ best quality of Babbitt’s metal,” as required by the agreement, and declined to accept more than four hundred and nine cars, and these he sold for a nominal sum. MeGann contended that he made and delivered the four hundred and nine cars according to the contract, and was ready to furnish the balance called for by it, but Osgood refused to receive and pay for the same.</p> <p>Evidence was introduced tending to prove that the wheels put by MeGann on the cars were not made of the best Babbitt’s metal. There was also much evidence on the part of experts, which was conflicting, as to what was the “ best quality of Babbitt’s metal,” and as to the proportions of the different metals used in its production.</p> <p>Osgood testified that he had had no experience whatever in regard to Babbitt’s metal, except that he had heard of it and knew that it was á very hard metal.</p> <p>MeGann testified that he went with Osgood, on June 24,1883, to Morey and Smith’s; that Osgood “ wanted to take me there to introduce me to the concern who had made wheels for him, and who, he thought, were the proper persons”; that he introduced him to Smith, saying, “You know just what I want, Mr. Smith, and I want you to go to work and make wheels for this man”; that Smith and Osgood came to his place some time in September, after the contract was signed, and Osgood said to Smith, “ Mr. Smith, are these wheels made of the best Babbitt metal?” to which Smith replied, “ They are of the very best”; and that a car then in court and before the jury was in every respect identical with the car given by him to Osgood as. a model car, save that the original car did not have a belting on top or chasing on the wheels. The judge called attention to the indorsement on the agreement, and asked the witness if he was on July 30 making cars for the Osgood Cash Car Company, and if the car before the jury was the car referred to in the agreement, to which he replied, “ No, sir, I had made them but one car. . . . That is the car, the simple difference is in the belting.” The judge then added, “ I understand that this is the car which he had already made, which is referred to in this indorsement, and which was adopted as the model car, according to which this contract was to be fulfilled.” And to this statement there was no dissent expressed by either party.</p> <p>One Hafey testified, that some time in July or August he heard Osgood, in McGann’s presence, while Osgood was holding a cash car wheel in his hand, ask Smith, “ Is this the best Babbitt metal?” and that Smith said, “ Yes, it is.”</p> <p>The judge instructed the jury as to the material of which these cars were made, as follows: “ Undoubtedly, in the proper interpretation of that contract,'they were to be made of the best quality of Babbitt’s metal. Now, how are you to determine that question, What is the best quality of Babbitt’s metal? We have several formulas here. . . . How are you to determine what is the best Babbitt’s metal as a practical question in this case? Well, gentlemen, some rule must be given, and I think that where there is a difference, such a difference, in the opinion or judgment or experience of men dealing with this article, Babbitt’s metal,— no two of them agreeing, — that if when parties are making a contract, that when these parties came to make their contract, if they selected a quality of Babbitt’s metal which they called the best, and these wheels were to be made of that metal, then, if they were made of that metal, that is a fulfilment of the contract. You will understand, gentlemen, if there is a diversity of judgment as to what makes the best Babbitt’s metal, and no two witnesses agreeing, that if, when parties come to make a contract, one part of which, to wit, the wheels in this case, are to be made of Babbitt’s metal, and the best quality of Babbitt’s metal, if the contracting parties select that particular quality of it which they have then and there before them as the best quality, then, although it should turn out afterwards that, in the judgment of other witnesses, it is not the best quality, that does determine it so far as this contract is concerned, and I therefore instruct you for the purposes of this case, and it seems to me it is the only interpretation that can be given to this contract as it is written, that if there was a model car, including the wheels, which wheels were made of a metal subject to the inspection of the contracting parties, and the agreement was that these thousand cars were to be made in conformity with that style and form and kind of car, including wheels, and every other part of it, and the parties adopted that particular style of Babbitt’s metal as the quality of metal which these cars were to be made of, and treated that as the best quality Babbitt’s metal,- then, if Mr. McGann made the wheels like that one, he fulfilled his contract, although it should turn out that it was not, in the judgment of other witnesses, the best quality of Babbitt’s metal, because they adopted that. ... I say, supposing they did not adopt that as the best quality of Babbitt’s metal, and he undertook independently to say they shall be, then he must see to it that the wheels that he put upon these cars were of the best quality of Babbitt’s metal.”</p> <p>The jury returned a verdict for McGann ; and Osgood alleged exceptions.</p>

<p>Judgment in another State — Joint Contractor — Service of Process.</p> <p>The judgment of a court of another State on a note against five makers jointly, one of whom lives in this Commonwealth and was never served with process there, is no bar to an action against him here on the note, although the judgment was in accordance with the law of that State.</p>

<p>Appeal, by Hanno W. Gage, from a decree of the Probate. Court, made on April 19,1886, appointing William H. Martin as administrator of the estate of his wife, Isabella H. Martin. The appellant filed, among other reasons of appeal, the following: “ That there were no goods, effects, estate, or debts to or by the said Isabella H. Martin, in this Commonwealth, at the time of the appointment of the said William H. Martin as administrator of said estate, and that the Probate Court had no jurisdiction over the subject matter at the time of the said appointment.”</p> <p>Hearing before Gardner, J., who overruled a motion to dismiss the appeal because the appellant, as appeared by his reasons of appeal, was not aggrieved by the decree of the Probate Court, and found the following facts.</p> <p>Isabella H. Martin, who resided, at Portland in the State of Maine, died there on July 18, 1885. Gage was duly appointed administrator of her estate by the courts of that State, on September 15, 1885, upon the petition of her husband. The intestate owned a yacht, which her husband during the summer of 1885 brought from Portland to Salem, and left in charge of a wharfinger for the winter. • Prior to April 19, 1886, Gage, having been duly licensed to sell the personal estate, took possession of the yacht at Salem, and made an agreement to sell her, and delivered her to the purchaser, subsequently, upon payment of the price, giving a bill of sale to him. Martin, after his appointment as administrator, attempted to sell the yacht to another person.</p> <p>The judge refused to rule, as requested by the appellee, that the appellant was not a person aggrieved within the statute, and that this appeal would not lie, and ruled that, at the time of the appointment of Martin as administrator, there were no goods or estate of the intestate in this Commonwealth to be administered upon, and that the Probate Court had no jurisdiction in the premises; and orderéd the decree of the Probate Court to be reversed. The appellee alleged exceptions.</p>

<p>Trade-mark— Use of Name— Contract — Estoppel — Injunction.</p> <p>A manufacturing firm, which called its product “ LePage’s Liquid Glue ” after the name of a partner, with his consent, sold the “ right to use the trade-marks belonging to or in use by said copartnership ” to a corporation, of which that partner became an officer, and which continued to make the glue under the same name, registration thereof being sought by him at the Patent Office. After-wards he left the corporation, and began to do business as “ LePage’s Liquid Glue Company,” and to make and sell “ LePage’s Improved Liquid Glue.” Held, on a bill in equity to restrain him from using those names, that he had parted with the right to use his own name as a trade-mark, and that the use of the word “Improved” did not justify such use; and that an injunction should issue.</p>

Bill in equity, filed April 20, 1887, alleging that the first-named plaintiff was engaged in the business of manufacturing boots and shoes in Lynn, and that he had admitted the other plaintiffs, who were in his employment as operatives, to share in the profits of the business; that there was a voluntary association in Lynn called the Lasters’ Protective Union, composed of persons engaged in lasting boots and shoes, of which the first-named defendant was the president, and…

Bill in equity, filed in the Superior Court on December 4, 1884, brought originally against William R. Cooke alone, and •alleging that on July 12, 1888, the plaintiff was the owner and in possession of a stock of goods in Southbridge; and that on that day Cooke executed a contract, under seal, containing the following provisions. . “ That said Blanchard hereby agrees to sell, and said Cooke agrees to buy, all the stock of goods, fixtures, and merchandise, and property owned…

<p>Corporation — Directors — Mortgage — Power of Sale — Purchase by Director— Writ of Entry.</p> <p>The Pub. Sts. e. 106, § 23, providing that a corporation shall not convey or mortgage its real estate, or give a lease thereof for more than a year, “ unless authorized by a vote of the stockholders at a meeting called for the purpose,” does not refer to foreign corporations.</p> <p>A foreign corporation was authorized, by the laws of the State where it was organized, to make contracts and to purchase and convey necessary real estate, as well as to adopt by-laws to regulate the powers and duties of its officers. The directors, under a by-law authorizing them to manage and control its business, to hold meetings here, and to appoint necessary agents, ordered the president and treasurer, at a meeting held here, to mortgage the real estate of the corporation to secure its notes for borrowed money expended thereon; and these officers gave a power of sale mortgage in its name and under its seal. Held, that the directors acted within their powers, and that the mortgage was valid.</p> <p>The mortgage was duly foreclosed for breach of condition, and the mortgaged premises were sold to the highest bidder, who was the only director not a surety on the mortgage note and who made the purchase in good faith, subsequently conveying undivided parts thereof to others, some of whom were directors. The premises were afterwards sold on an execution issued on a judgment subsequently obtained against the corporation. Held, that the purchase by such director, even if voidable, conveyed the legal title, and that the purchaser at the sale on execution could not maintain a writ of entry against him and his grantees.</p>

<p>Vendor and Purchaser — Bond for a Deed — Condition — Payment — Good Title — Delivery of “ Properly Executed Warranty Deed ” — Evidence — Extrinsic Evidence.</p> <p>A bond for a deed recited that the obligor had “ bargained and sold ” to the obligee certain land, part payment for which was to be in cash and the balance “ on three promissory notes payable ” in one, two, and three years, with the privilege of anticipating payments, and contained the condition that, if the obligor should deliver to the obligee “ a properly executed warranty deed ” upon the obligee’s “ making a demand for the same and fulfilling all the conditions therein stipulated, then this obligation to be void.” Held, in an action on the bond, that the payment of the notes was a condition upon which the.deed was to be delivered; and that the delivery simply of a properly executed warranty deed, without the giving of a good title, would not satisfy the bond.</p> <p>Evidence of conversations between the parties at or about the time the bond was signed as to the deed and the title, as well as between the obligee and the husband of the obligor, after her death and while he was acting as special administrator of her estate, as to the same, was held to be properly excluded.</p>

Tort for personal injuries sustained by the plaintiff while in the employment of the defendants, who were part owners of the ship Benjamin F. Packard. At the trial in the Superior Court, before Mason, J., the only issue tried was whether the plaintiff could recover if his injuries were caused by the negligence of the mate of the ship.

<p>Three petitions, filed October 16, 1884, for writs of review of judgments of tbe Superior Court. The cases were heard together before Devens, J., who reported them for the consideration of the full court, in substance as follows.</p> <p>The respondents severally filed petitions to the county commissioners for the county of Plymouth for the assessment of damages for land taken by the petitioner for its railroad, and the commissioners, having ordered the company to give security for any damages that might be awarded by them, which was done, proceeded to award as such damages, on January 2, 1882, to Charles A. Ransom, $1,700; to Sarah E. Ransom, $950; and to Lyman Mason, $270. Appeals were duly taken by the railroad company to the Superior Court for that county, and the cases were tried at the October term, 1883, verdicts being found against the company, on November 16, 1883, for Charles A. Ransom, $9,497.50; for Sarah E. Ransom, $1,966.56; and for Lyman Mason, $996.50. The company were duly notified that the actions were to be placed on the trial list for that term, but, owing to some misapprehension on the part of its counsel, it was not represented at such trials. Judgments were entered upon the verdicts on November 22, 1883, and executions issued thereon on December 13, 1883. The counsel for the railroad company had no notice of the trials or judgments in the Superior Court until more than four days after the adjournment of the court for that term, and upon receiving this information he presented to the justice of the Superior Court who presided at the trial petitions for writs of review in the cases, and requested an order of notice thereon, which the judge declined to grant. No further action was had in the Superior Court; the petitions for writs of review were not filed with the clerk of said court; and there are no entries of record therein relating to the matter.</p> <p>The executions remained unpaid, and a justice of this court, at a hearing upon bills in equity, filed by the respondents, on August 6, 1884, to restrain the company from entering upon or using the lands, ordered the company to pay to the respondents, without prejudice, before September 1, 1884, an amount equal to the award of the county commissioners and interest, with the costs taxed before them and in the Superior Court, the company assenting to judgments against it for this amount. On August 30, 1884, the company paid to each respondent the portion of the amount so ordered to be paid, and agreed to release a portion of the land taken in lieu of the amount remaining unpaid; but no such release had been given, nor any further amount paid.</p> <p>A review was to be granted only in case the full court should be of opinion that the cases were such that writs of review might be granted therein, and that the company had not lost its right to apply for such writs of review by reason of its previous application to the Superior Court and the refusal thereof; and, in any event, a review was to be granted as to the excess only over and above the awards of the county commissioners, with interest thereon, and with the costs taxed before them and in the Superior Court.</p>

<p>Tort for personal injuries. The first count of the declaration set forth a cause of action under the statute for injuries occasioned by a defect in Commercial ^Street, a highway which the defendant was bound to keep in repair, and alleged that a derrick erected for the repair of a culvert in that street was so insufficiently supported that it fell, by its own weight and by that of a load placed upon it, upon the plaintiff, who in the exercise of due care was lawfully travelling upon the street, due notice- of the time, place, and cause of injury being given. The second count of the declaration set forth a cause of action at common law for the injuries, and alleged that the defendant town, having voted to widen the culvert, which the defendant was bound to keep in repair, and having appropriated money therefor, in executing the work by its agents and servants erected a derrick near the centre of the street for hoisting stone, and so negligently and improperly secured it that it fell, by its own weight and by that of a stone being lifted by it, upon the plaintiff, then using due care and in the lawful use of the street, and greatly injured him.</p> <p>At the trial in the Superior Court, before Blodgett, J., evidence was introduced tending to prove the following facts.</p> <p>The plaintiff, who was a boy twelve years of age, was, prior to the accident, passing along the street a little after noon on his way to school, and sat down upon a rock to watch the operation of the derrick. Upon being warned that his position was not a safe one, he got up, and was starting along the street when he was struck and injured by the fall of the derrick. It was admitted that Commercial Street was a highway which the defendant was bound to keep in repair, and that proper notice of the injury had been given to the defendant. The culvert extended across the street over a running stream, and was about three and a half feet wide and two feet deep, being covered on top with stones and dirt to the depth of several inches. It had become obstructed, and was being made four feet wide and four feet deep for the freer passage of the water, the side walls being constructed of heavy stones. The repairs upon one half of the culvert, extending to the middle of the street, had been completed, and that portion had been put in order for use, and the work was being prosecuted on the other half. No signs or barriers were put up to warn travellers, except that the earth and stone from the uncompleted portion were piled up between it and the portion completed. The derrick had been erected near the centre of the street a day or two prior to the accident, which occurred on April 23, 1885, and was being used in the prosecution of the work for the handling of heavy stones. One of four guys by which it was supported extended into an adjoining meadow, the soil of which was soft and wet, and was there attached to a railroad sleeper bulled in the ground. A chain, to which the guy was fastened, encircled the sleeper, which lay crosswise to the guy and was covered with earth to the depth of fifteen inches or two feet. At the time in question the workmen operating the derrick were engaged in hoisting a heavy stone, weighing about one thousand pounds, which was to be placed in tbe side wall of tbe culvert, and tbe strain upon tbe guy was such that the sleeper was pulled out of the ground, and both the mast and boom of the derrick thereupon fell into the street, one of them striking the plaintiff and inflicting severe injuries upon him.</p> <p>At the annual town meeting, held on March 2, 1885, the defendant town voted, under appropriate articles in the warrant, “ to raise and appropriate for highways, town ways, and bridges $9,000, $700 to be expended by each highway surveyor, balance by selectmen,” and “ to raise and appropriate the sum of $200 for the purpose of enlarging the drain across Broad Street, . . . also the drain across Commercial Street.” Five selectmen and five highway surveyors were elected in the defendant town in that year, one of each class being assigned to each of the five wards of the town. Thomas H. Humphrey was the selectman in charge of Ward Two, in which Commercial Street was situated. At a meeting of the selectmen held on March 6, 1885, an assignment was made of the highways, town ways, and bridges in each ward to the surveyor chosen for that ward at the annual meeting, in pursuance of which the following notice was sent :</p> <p>“ To Weston H. Cushing, Surveyor of Highways for the town of Weymouth : All the highways, town ways, and bridges within the limits of Ward 2 are assigned to you to keep in repair during the current year.”</p> <p>Subsequently Cushing took charge of the work on the culvert, both he and one Richards presenting bills therefor to the defendant, which were paid by warrants drawn by the selectmen.</p> <p>Cushing testified as follows: “ Thomas H. Humphrey told me there was an appropriation of $200 for widening the bridge across Broad Street, also across Commercial Street, and that it would come in with the general work when it came the proper time to do it, or when I saw fit to do it, something like that, — I cannot give his exact words. I got Richards to do the stonework. The selectmen attended to any small affair for the highways in their ward. The culvert was possibly two feet deep inside the stone-work. It was filled with stuff that had collected there. It was four feet wide and four feet deep when we left it. A stream of water flows through it at all seasons of the year. It comes from a small artificial ornamental pond, dammed up from a spring. I know that this work was done outside of the regular appropriation. ... I told Mr. Humphrey there were $200 to spend there. Humphrey told me it would come in with my general work. . . . Cannot swear now what Humphrey did tell me to do about it. In substance Humphrey told me the work was for me to do, when the proper time arrived in the general work. ... I probably had about $1,700 that year; I think the records show I had that. That is all the way I can answer whether I had the $700. I did not get it at one time; but when I did any work as surveyor of highways, I got my pay for it and the pay for my men. I have more or less men in my employ all the time.”</p> <p>The judge ruled that, upon this evidence, the action could not be maintained, directed 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 on the verdict; otherwise, a new trial was to be granted.</p>

<p>Railroad Company — Negligence — Express Messenger — Riding in Baggage Cat— Agreement to assume Risk — Contributory Negligence •—■ Public Policy.</p> <p>If an express messenger holding a season ticket from a railroad company and desiring to ride for the conduct of his business in a baggage car in contravention of its rules, agrees to assume all risk of injury therefrom, and to hold the company harmless therefor, the agreement is not invalid as against public policy, and he cannot recover for injuries caused by the negligence of the company’s servants, to which his presence in the baggage car directly contributed.</p>

<p>Contract to recover the balance of a mutual account between tbe parties. The defendant filed a declaration in set-off, to diminish such balance. Trial in this court, without a jury, before Eevens, J., who reported the case for the consideration of the full court. The case was submitted upon an auditor’s report as an agreed statement of facts, in substance as follows.</p> <p>The two corporations had had business relations with, one another for many years, during which the respective treasurers had lent the funds of each to the other by means of the checks of one in favor of the other. The directors of each corporation had never by vote expressly authorized such loans, but the facts were known to them, and the loans impliedly sanctioned by them. William Gray, Jr., who had become the treasurer of both corporations, continued this practice of mutual lending; and the plaintiff’s claim was for a balance of $365,500 upon this loan account, as appeared by its books. The defendant contended that it was entitled to recover upon its declaration in set-off the sum of $219,114.48, and therefore owed the plaintiff only $146,885.52, and this was the question at issue.</p> <p>Besides the legitimate dealings between the two companies, all of which were conducted and recorded under Gray’s orders, Gray took moneys from both, from 1881 to August 14, 1886, for his own use. Every six months, when the accounts of either company were to be made up, he transferred to that company from the treasury of the other the amount necessary to make his cash account good. These transfers were made by checks of the one mill to the order of the other, made in precisely the same manner as the legitimate transfers of cash from one to the other, and entered in the same manner on the check and stub books of both companies. The transfers were not made by single checks for the amount of the deficiency, but generally by several checks running over a considerable period, and undistinguished from the legitimate payments by one mill to the other during such period, except by the failure to post them from the check-books to the cash-book and ledger.</p> <p>The mode of committing and concealing the frauds was, to some extent, different in the two cases; but evidence of every transaction was preserved, and every dollar taken could be accounted for. The facts appear upon the check-books of both companies, in which the stubs show that the money taken by Gray was taken by checks to his own order, and the money transferred from one company to the other was always by checks payable to the order of the company receiving it. There were, besides, private memoranda, kept by the book-keepers of the two companies, which had been preserved.</p> <p>Each company was in the habit of appointing annually a committee of stockholders to examine the accounts, with authority to employ an expert, the same expert being employed by both, and his examinations being adopted. He examined the accounts usually on or about the days when they were made up, but occasionally at other times, and the committees reported to their respective companies at the successive annual meetings. No officer of either company, excepting Gray, knew of his frauds. They were known to the book-keeper of each company, and upon the evidence, the private accounts were known to the expert, but he was not called as a witness. All the entries on the check-books and on the private memoranda were made by the respective book-keepers by order of Gray.</p> <p>In the ease of the Atlantic Cotton Mills, Gray would take money from that corporation and enter it on his memorandum, no other entry being made except on the stubs of the check-books. Upon this memorandum he would charge himself with all these sums, and would credit himself with payments which he, from time to time, made by deposits to the credit of the companies, and with the amount of his salary. The memorandum was treated as cash, and the discrepancy could not be discovered except by a comparison of the cash on deposit with the amount required by the cash-book, or of the cash-book with the checkbooks, which the plaintiff contended should have been done. The accounts of this company were made up to the fifth days of June and December in each year, and before those dates Gray would cause to be transferred to this company, from the cash of the defendant, from time to time, checks for various sums, amounting in all to the deficit in the plaintiff’s cash as shown on his private memorandum. The plaintiff contended that the amounts transferred by Gray from one company to the other were so transferred for the purpose of paying his indebtedness to the company receiving them; but the auditor found that they were made for the purpose of concealing his deficit.</p> <p>In the case of the Indian Orchard Mills, Gray charged a part of his thefts to certain persons, as if they had borrowed those sums, and kept an account of the remainder upon a memorandum like that kept with the plaintiff. These loan accounts, excepting Gray’s, were fictitious. Gray held notes of these persons, and placed them in that part of the safe, common to the two mills, where the books and papers of the Indian Orchard Mills were kept. These notes did not represent value received from, nor any dealings with, the Indian Orchard Mills, but only Gray’s defalcations.</p> <p>On September 27, 1886, the Indian Orchard Mills brought an action, which is still pending, against one of these persons on a note for $2,000 given to the order of Gray, who indorsed and deposited it in that part of the common safe where the papers of the Indian Orchard Mills were kept, and at the same time took a check of the defendant to his own order for $2,000, and appropriated the same to his own use, entering it as a loan to the maker of the note. The amounts supposed to be lent to such persons were entered in the general loan account on the ledger, and so into the monthly trial balances, and into the annual State returns; but the names of the supposed borrowers did not appear there, nor in the ledger, and were not known to the directors. All of these alleged loans, except a portion of that to one person, were entered on the cash-book and journal of the Indian Orchard Mills with the name of the alleged borrower, and were also carried into the “ loan account ” in the ledger, where, however, the individual names of the alleged borrowers did not appear, it not being the practice of the book-keepers to insert in that account the names of the borrowers. Large transfers to the loan account were thus made from time to time from Gray’s private memoranda, as a mode of concealing his cash deficit.</p> <p>A comparison of the ledger with the cash-book and journal would have disclosed these accounts. These alleged loans were entered on the books in the same way in which all loans were entered, no separate account being kept of such loans! All loans were credited to cash and charged to the loan account on the ledger. The accounts of the Indian Orchard Mills were made up and examined on the last Saturdays of April and October; and the deficiency of cash was made good by checks of the Atlantic Cotton Mills made to the order and deposited to the credit of the Indian Orchard Mills.</p> <p>The net amount taken by Gray for his own use from the plaintiff was $265,786.95, and from the defendant, $267,565.62. The only question is, how the account between them should be made up.</p> <p>When the frauds were exposed, on August 14,1886, the transfers of cash from the defendant to the plaintiff by checks so made to conceal the truth were larger than from the plaintiff to the defendant by the sum of $219,114.48. This balance was, in a certain sense, accidental; depending on the fact that the frauds were discovered about six weeks after the Atlantic Cotton Mills had made up its semiannual account, at which time their cash was made good from the defendant’s treasury, and before Gray had gone far in preparing for the next settlement with the defendant by transferring to its credit checks of the plaintiff, having then transferred about $50,000. From the mode in which the transfers of cash were made, if each company was charged • with the checks transferred to it from the other, the exact amount of money taken by Gray from each company would be lost by each; and this was the mode of accounting contended for by the defendant.</p> <p>The plaintiff contended that the transfers of checks from one company to the other were, in fact and law, payments by Gray to an innocent creditor without notice, and therefore could not be reclaimed; that the losses must be borne as they stood at the time of the discovery of the frauds ; or, which reaches the same result, that the loan accounts between the two companies as they appeared on their ledgers should be taken, the claims in set-off being disallowed.</p> <p>The auditor ruled, as matter of law, that the account should be made up in the mode asked for by the defendant, and that, consequently, the defendant owed the plaintiff $146,385.52, and interest.</p>

<p>Arbitrators — Rule of Court — Fees — Assignment — Recovery in Referees’ Name.</p> <p>Referees under a rule of court may, upon the acceptance of their award, recover their reasonable fees from the parties to the submission.</p> <p>If one party pays the whole of such fees, and takes an assignment of the referees’ claim, he may recover one half thereof from the other party, and, if no objection is made, he may maintain his action in the name of the referees.</p>

<p>Trustee process. Richard Stone and another, summoned as trustees, appeared and filed an answer, and fully replied to interrogatories filed by the plaintiffs. A claimant of the funds in the hands of the trustees also appeared. Trial in the Superior Court, without a jury, before Mason, J., who ordered the trustees to be discharged, and allowed a bill of exceptions, in substance as follows.</p> <p>On September 28, 1886, at about eleven o’clock A. M., Mr. Stone received by mail from Washington a United States Treasury draft payable to the order of the principal defendant, which was indorsed by him by writing his name across the back thereof, and by him was delivered to Mr. Stone, pursuant to a written assignment to the trustees, in trust for the claimant. The validity of this assignment the plaintiffs denied, and it involved questions of law and fact not passed upon by the court. Mr. Stone immediately thereafter deposited the draft, without change or additional indorsement, in the Lincoln National Bank, where he then had a balance to his credit, and the amount of the draft was credited upon his deposit-book and upon the books of the bank in his account. The deposit was made in the usual course of dealing between the bank and Mr. Stone, and nothing was said by him or by the officers of the bank in regard to drawing against such credit. The bank, on the same day, at the close of business hours, sent the draft to its correspondent bank in New York, with other checks and drafts drawn on places west of Boston, charging the same to the correspondent bank at the time when sent, and receiving credit from the correspondent bank as soon as received by it in New York. The Lincoln National Bank had not otherwise heard from the draft since, and had no actual knowledge whether it had ever been presented for payment or not, and no debit entry against the credit had ever been made. At about twelve o’clock, on the same day, the plaintiffs’ writ was served upon the trustees, at which time the draft was still in the actual possession of the Lincoln National Bank.</p> <p>There was evidence tending to show that, by the custom of banks in Boston, checks and drafts received for deposit were credited conditionally, subject to correction on non-payment; that such deposits were not subject to check of depositors until the check or draft deposited was collected, or sufficient time had elapsed for notice of non-payment in due course of business; that in some instances a notice that checks and drafts deposited were so received, and that in their collection the bank acted as agent for the depositor, was printed upon the deposit-book; that the Lincoln National Bank now print the following notice, “ Checks received upon deposit are credited subject to payment,” upon deposit-books, but did not upon those in use at the time of the deposit in question ; that the practice of the Lincoln National Bank, at the time of such deposit, was the same as at the present time, and in accordance with the custom of banks in Boston; that such deposits were entered both on the customer’s deposit-book and in the customer’s account on the books of the bank, in the same manner as deposits of bank bills were entered, and no change was afterward made in the entries thus made, but in case of non-payment of a check or draft deposited, the amount of the same was entered upon the other side of the account; that banks did, in certain cases, pay checks drawn immediately against deposits of checks or drafts, and that, when they did so, the responsibility of the customer, the responsibility of the drawer and drawee of the check or draft deposited, the bank’s knowledge of the genuineness of the paper deposited, and its liability to technical difficulties not apparent upon ordinary inspection, were elements affecting their decision, drafts upon the United States Treasury being subject to peculiar difficulties by reason of the exacting rules of the Treasury Department; that Mr. Stone was of such financial responsibility that the bank, in its discretion, having reference to this and other elements referred to, would have paid his checks drawn against said draft at any time after said deposit.</p> <p>There was also evidence of the course of. business of banks, with reference to checks and drafts deposited by customers, of the transmission to correspondent banks and final presentation for payment, with the character of credits given in the successive transactions relating thereto, and the control of such checks and drafts at the several stages of transmission for payment, tending to show that the credits given to customers for such deposits were absolute, and not conditional, and subject to immediate control of the customer by check against the same.</p> <p>The plaintiffs requested the judge to rule: “ 1. That if, after the deposit by Mr. Stone of the draft in question, and before service of the plaintiffs’ writ, said Stone could have received payment of a check drawn on said bank, had such been drawn and presented, for the amount of said draft, then the trustees are to be charged. 2. That if the cashier of the Lincoln National Bank would have paid a draft drawn by said Stone against said deposit of said draft, and presented before the service of this writ, then these trustees are to be charged. 3. That if such a draft would have been paid by said bank before said trustee writ was served, then said trustees are to be charged.”</p> <p>The judge ruled that, except as affected by the alleged assignment, upon the validity of which he did not pass, if Mr. Stone could have drawn against said deposit as of right, or if the bank or cashier would have paid his check against the deposit, pursuant to any agreement implied by the course of dealing between the parties, or pursuant to any contract obligation, then he was to be charged as trustee; but refused to rule that he was to be charged as trustee if he would have been permitted to draw in the discretion of the bank, and the bank would have paid in its discretion, relying on his responsibility, the character of the paper deposited, or both or all the elements which might affect its discretion when not under obligation to pay.</p> <p>The judge found as a fact, that at the time of service Mr. Stone had not control of the credit entered upon his deposit-book on account of the draft in question, and could not check or draw upon it as of right, but did not pass upon the question whether the bank would have paid a draft by him against the deposit; and the plaintiffs alleged exceptions.</p>

<p>Libel, filed June 25, 1887, for divorce on tlie ground of desertion. Hearing before 0. Allen, J., wlio reported the case for the consideration of the full court as follows. The desertion, which was alleged to have taken place on February 5, 1875, was proved. Immediately thereafter the libellee moved from Boston, where she had lived with the libellant, to Cambridge, and her place of residence was known to the libellant. She has ever since lived in Cambridge and Boston, at different places, but under no concealment. There was no presumption of her death. On October 23,1883, the libellant married again. At this time, the libellee had remained absent from him for seven years together, he not actually knowing her to be living within that time. If, upon these facts, the libellant was entitled to a divorce, then a decree for a divorce was to be entered; otherwise not.</p>

Bill in equity, filed March 2, 1887, for the specific performance by the defendant of an agreement to purchase land.

Bill in equity, by the daughters of Horace Nelson against his widow, to compel the distribution of a fund of $3,000, the proceeds of a certificate of membership issued to him in the Royal Arcanum. Writ dated February 15, 1886. Hearing in the Superior Court, before Hammond, J., who reported the case for the determination of this court, such decree to be entered as law and justice might require, in substance as follows.

<p>Covenant to sell Land — Specific Performance — Waiver—• Tender — Notice — Dower.</p> <p>If the owner of land makes a covenant, his wife not joining, to sell it, and, after preventing the covenantee, who seasonably elects to take it, from tendering the purchase money, conveys it to another, who has notice of the covenantee’s rights, and to whom the wife releases dower for part of the land, the covenantee, who consents that the wife retain that portion, is entitled to specific performance against both the covenantor and his grantee.</p>

<p>Partnership Settlement — Fraud — Equity Practice —■ Multifariousness — Laches.</p> <p>A bill in equity for the opening of a partnership settlement alleged that, in 1881, the plaintiff was induced by the fraud of his partner to make a settlement by which the plaintiff got less than his share; that such partner died in June, 1885, the property disposed of by his will belonging to the partnership; that before his death such partner had purchased other property with firm moneys, and given it without consideration to various persons other than his executors and devisees; and that the plaintiff liad no knowledge of the fraud until June, 1885. The bill was brought against the partner’s executors, devisees, and donees, and was filed immediately after the limit within which the executors could not be sued had expired. Held,, that the bill could be maintained, that it was not multifarious, and that the plaintiff had not been guilty of laches.</p>

<p>Bill in equity, between former copartners, for an accounting. The case was heard on the report of a master, and exceptions thereto alleged by the defendant, by Devens, J., who reserved it for the consideration of the full court. The facts appear in the opinion.</p>

Tort to recover for .personal injuries alleged to have been caused by the negligent use of poisonous dyes by the defendant in making woollen cloths purchased and used by the plaintiff, a manufacturer of caps. Writ dated September 22, 1884'.

Contract to recover certain royalties for the use of a patent. Trial in the Superior Court, without a jury, before Mason, J., who allowed a bill of exceptions in substance as follows.

<p>Devise in Trust — “ Issue ” construed to mean Children.</p> <p>A testator, by his will, gave the residue of his property in equal shares to eight children, and provided that, in case of the decease of either, leaving issue, before receiving a share, “ such issue shall represent and take the parents’ share.” ' Seven of the children were to take their shares outright, but the share of one son was put in trust, such share to go at his decease, if he left no widow, to his "issue,” without more. The son died leaving no widow, but leaving three children, and also grandchildren and great-grandchildren, descendants of two of the three children. Held, that the son’s children were entitled to his share, to the exclusion of his more remote descendants.</p>

<p>Sale of Lands — Oral Agreement — Statute of Frauds — Resulting Trust — Foreign Parties — Jurisdiction.</p> <p>If a person agrees orally with three others to buy land on joint account, each to have one quarter interest in it, and all contributing unequal amounts towards the purchase money, and such person in violation of the agreement procures from the owner of the land a bond for the conveyance of two fifths thereof to himself and of one fifth to each of the others, no resulting trust will attach to such two fifths in favor of the others.</p>

Contract, by the plaintiffs, doing business in New York under the style of A. S. Lazarus and Company, to recover the proceeds of a cargo of molasses consigned to the defendant by Daubon and Company, of Porto Rico, who were indebted to the plaintiffs. The case was submitted to this court on an agreed statement of facts, the material part of which appears in the opinion.

<p>Contract for money had and received. At the trial in the Superior Court, without a jury, before Mason, J., the following facts were agreed.</p> <p>On or about November 1, 1886, the defendants, composing a firm of boot and shoe manufacturers in Boston, sold to J. and S. B. Sachs of Cincinnati, Ohio, certain boots and shoes, and received in payment from that firm a promissory note, dated November 3, 1886, and signed by it. The defendants, in the usual course of business, placed the note with a firm of brokers in commercial paper, with directions to sell it, and such brokers, at about one o’clock P. M. on November 27, 1886, sold the note to the plaintiffs, who had been in the habit of buying commercial paper, including that of J. and S. B. Sachs. Neither the defendants nor any one in their behalf indorsed the note, or made any representations in respect thereof, other than such as may be implied or inferred from the facts stated. Neither the plaintiffs, nor the defendants, nor the brokers, had at the time of the sale of the note any knowledge about the solvency or insolvency, or the continuance in business, of the makers of the note, further than what was known generally to the business community of Boston at the time, and both the plaintiffs and defendants knew the financial standing of J. and S. B. Sachs as given by the mercantile agencies.</p> <p>About two hours before the sale of the note to the plaintiffs, the firm of J. and S. B. Sachs failed, and made a voluntary assignment of all their assets for the benefit of their creditors, to be administered under the insolvent laws of Ohio, which assignment was duly recorded. J. and S. B. Sachs at the making of the assignment ceased to do business, and have not since resumed business, being able to pay only a percentage upon their debts. At the time of the sale of the note, no one of the defendants, nor any one of the plaintiffs, nor the brokers, knew, or had any reason to believe, that J. and S. B. Sachs had failed or made an assignment, or ceased to do business; but, on the contrary, they all supposed or believed that the firm was then doing business at Cincinnati as theretofore. The business of buying and selling business commercial paper is an extensive one in Boston, and is largely conducted through brokers. The transactions in commercial paper so conducted through brokers, including the brokers in question, are confined to the paper of persons actually 'carrying on business; in other words, it is the. universal custom of such brokers not to offer for sale the paper of any person whom they have reason to believe to have failed or made an assignment. The plaintiffs would not have purchased the note if they had known that J. and S. B. Sachs had failed or made an assignment, nor would the defendants or the brokers, if they had known of the failure, have sold it to the plaintiffs without disclosing the fact to the plaintiffs, unless it appeared that they already knew it.</p> <p>The parties, about two hours after the sale of the note, learned for the first time that J. and S. B. Sachs had failed, and immediately thereafter offered to return the note to the defendants, and demanded a return of the money paid by them therefor, claiming that the money had been paid under a mistake; hut the defendants declined to take back the note and repay the money, claiming that there was no mistake, and that the sale was valid. Between the time that the note was delivered to the plaintiffs and the time that they offered to return it to the defendants, there was no change in the affairs of J. and S. B. Sachs, or of the parties to this action, which would prevent their being restored to the same position that they were in before the sale, other than as stated. Subsequently the plaintiffs delivered the note in question to J. and S. B. Sachs, upon part payment thereof.</p> <p>The case was submitted to the court upon such of the above facts as were legally relevant'or material, with a right to draw such inferences as a jury might draw therefrom; and if, upon such facts as are material and relevant, and the inferences therefrom drawn, the court was of opinion that the plaintiffs were entitled to recover, judgment was to be entered for them for the balance due on the note; otherwise, for the defendants.</p> <p>The defendants requested the judge to rule as follows: “ 1. Upon the agreed facts, judgment should be for the defendants in this action. 2. From the agreed facts as stated, there are no inferences of further facts which the court or jury could or ought to draw. 3. If the court finds that neither the plaintiffs nor the defendants at the time of the sale of the note spoke of, or inquired about, or knew anything relative to the then continuance in business of the makers of the note, and that during the transaction the plaintiffs and defendants both stood upon an equal footing, judgment should be for the defendants.”</p> <p>The judge refused so to rule, but ruled as follows : “1. If the court finds that the defendants, through their agents, sold the note to the plaintiffs, as and for the note of a firm then doing business, and not as the note of a firm which had already failed, the plaintiffs are entitled to recover. 2. If the court finds that the defendants intended to sell, and supposed they were selling, and the plaintiffs intended to buy, and supposed they were buying, the note of a firm then carrying on business, and not the note of a firm which had already failed and made an assignment, the plaintiffs are entitled to recover. 3. If the court finds that, under the circumstances of the sale, the note was warranted as being the note of a firm then doing business, and not the note of a party that had failed or made an assignment, the plaintiffs are entitled to recover. 4. If the court finds that, under the circumstances of the sale, the note was represented as being the note of a firm then carrying on business, and not the note of a party that had failed or made an assignment, the plaintiffs are entitled to recover.”</p> <p>The judge found for the plaintiffs; and the defendants alleged exceptions.</p>

<p>Contract against a surety on a bond, given to dissolve an attachment in an action of tort brought by the plaintiff against William H. Swift. Answer, that after the execution of the bond, and before trial of the former action, the plaintiff changed his cause and form of action, by adding a count to his declaration without the consent of, and without notice to, the defendant.</p> <p>The declaration in the original action contained two counts, the first of which was as follows: “And the plaintiff says that he was possessed of a certain sailboat; that the defendant was possessed of a certain steamboat, which was under the care, management, and control of the defendant;' that, while the plaintiff was sailing in his said sailboat lawfully, and in the exercise of due care, the defendant so negligently, carelessly, and unskilfully managed, steered, and piloted his said steamboat, that said steamboat struck upon, in, and against the plaintiff’s said sailboat, rendering it unfit for use, whereby the plaintiff has been put to great damage, and by way of special damage the plaintiff says his said sailboat was worth to him the sum of two hundred dollars; and the plaintiff has been damaged to that extent and otherwise.” The second count was in the same words as the first count, including the words “ managed, steered, and piloted his said steamboat,” and thence concluded as follows: That said steamboat struck against and upon the plaintiff, and smashed the plaintiff’s said sailboat, thereby causing the plaintiff to fall into the water of Boston Harbor, in which the plaintiff had to remain a long time, and where the plaintiff had to struggle hard to keep from di-owning, and was put in great fear of the loss of his life; in consequence of all which the plaintiff was damaged in body and mind, was put in great suffering, rendered unable to work for a long time, and was put to great expense.”</p> <p>At the trial in the Superior Court, before Hammond, J., without a jury, it was admitted that the plaintiff recovered judgment in the original action for fifty dollars, damages, and seventy-two dollars and thirty-three cents, costs of suit; that such judgment remained unsatisfied; that the second count in the original declaration was allowed as an amendment, without notice to the sureties on the bond, and without their knowledge; that the verdict in the original action was a general one; and that counsel in the original action would testify that the second count referred to the same collision as the first count, and that the claim for personal injuries was omitted in the first count through inadvertence.</p> <p>The plaintiff asked the judge to rule that the second count did not introduce a new cause of action which would discharge the defendant as surety.</p> <p>The judge refused so to rule, but ruled that the second count did introduce a new cause of action, and that the liability of the surety was increased thereby, and found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Bill in equity, changed in the Superior Court from an action of contract for money had and received, to establish a trust in the same fund for the benefit of the plaintiff, doing business under the name of J. B. Moors and Company. Hearing before Dewey, J., who made certain findings of fact, and ordered the bill to be dismissed; and the plaintiff appealed to this court. The facts appear in the opinion.</p>

<p>Will— Trust for Charitable Purposes— Cy Pres-—-Framing of Scheme by the Court—Presumption.</p> <p>A testator, by his will, gave the residue of his estate to his executor, “ to be disposed of by him for such charitable purposes as he shall think proper ” ; and the executor died having disposed of only a small portion thereof for such purposes. Held, that the will created a valid trust for charitable purposes, and that the court would frame a scheme to carry out the trust.</p> <p>During his life the testator invested a fund in a trust company for the benefit of a woman, interest to be paid to her for life, witli the privilege upon due notice of capitalizing it, and the principal to be repaid to his executor at her death. The will, after reciting that provision had been made for her, proceeded, “ It is not my wish or purpose that any investment which I have made or hereafter may make for her should be disturbed or changed by this will, but I direct that the same shall remain and be disposed of according to the conditions thereof, in the same way as though this will had not been made ”; and contained a recommendation that she allow the fund to accumulate to a certain sum before drawing interest. Interest was added to the principal for several years, and she received interest on the new capital for twenty years thereafter, until her death, without objection. Held, that the entire fund fell into the residue for charitable purposes, and that her executor was not entitled to the interest thus capitalized.</p>

<p>Bill in equity, under the Pub. Sts. c. 151, § 3, filed October 8, 1887, to set aside an assignment executed by the first-named defendant to the other defendant, Gilbert N. Hall, as in fraud of creditors. Hearing before Q. Allen, J., who found, if competent to do so upon the facts in evidence, that the assignment was made with the intent to hinder, delay, and defraud the creditors of the company, and especially the plaintiffs, and that the other defendant was chargeable with knowledge of such fraudulent intention, and reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Contract of Beneficiary Association — Attachment and Distribution of Safety Fund.</p> <p>A beneficiary association agreed to make assessments at the death of members upon the holders of certificates of membership then in force, and to pay the sums collected not exceeding a limited sum as an indemnity. It collected from members under its by-laws, and deposited with a trust company, a safety fund, so called, which was expressly limited to enure in a certain event to the benefit of certain members only, for the payment of future dues and assessments. This fund was not to be used to make good such indemnity, but, if the association should fail to pay the indemnity, was to be divided among the holders of certificates then in force, deducting the expenses of its management. On the hack of each certificate was a statement that the safety fund would afford substantial protection to members, and also a caution to the holder thereof to “ read carefully all the conditions of this certificate,” to which was added, “ No person should be a party to a contract without knowing all its conditions.” Held, on a bill in equity to dissolve the association upon its failure before the event, that the safety fund was to he divided among certificate holders not in default, including the representatives of such deceased holders, a reasonable sum for its management being first deducted, and that claimants for death losses as such merely were not entitled to share in the fund, and could not attach it by the trustee process.</p> <p>A certificate was to be null and void upon a member’s failure to pay, 1st, dues for expenses payable monthly while it remained in force; 2d, the sum due thereon towards the safety fund within a year from its date; and 3d, duly notified assessments within a time limited. Held, that a failure to pay monthly dues after the association ceased to do business would not forfeit a certificate; that a payment towards the safety fund to entitle a holder to share therein might be made at any time.within the year, though after the date of filing the bill; hut that nonpayment of any assessment, duly made before the latter date, within the limit, would avoid a certificate.</p>

<p>Implied Contract—Services as supposed Wife — False Representations — Administrator.</p> <p>If a woman goes through a form of marriage, and lives with a man as his wife for many years, performing all the duties of that relation, and, after his death, learns for the first time that he had a wife living and not divorced from him; she cannot recover from his administrator for her services as housekeeper under an implied contract with the intestate.</p>

Complaint to the District Court of Northern Berkshire against the defendant, for keeping and maintaining a common nuisance, to wit, a certain tenement in North Adams used for the illegal sale and keeping for sale of intoxicating liquors, from May 1, 1887, to December 16, 1887. At the trial in the Superior Court, before Hammond, J., the jury returned a verdict of guilty, and the judge reported the case for the consideration of this court. The facts appear in the opinion.

<p>Intoxicating Liquors — Common Nuisance — Error in District Court — Jurisdiction of Superior Court on Appeal —- Evidence.</p> <p>Error in the proceedings upon a complaint in a District Court is no ground for dismissing the complaint on appeal.</p> <p>At the trial, on appeal, of a 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, an officer testified that during the time alleged he seized on the defendant’s premises upon a search-warrant a cask of liquor, and on cross-examination stated, without objection, that it was returned by order of the court, the record of which was not introduced. The presiding judge recalled the jury, after they had left their seats at the close of the charge, and directed them to disregard the fact of such return, because the record was not in evidence, but did not allude to the seizure. Held, that the direction was erroneous.</p>

<p>, Indictment alleging that the defendant kept and maintained a common nuisance, to wit, a certain tenement in Pittsfield, used for the illegal sale and keeping for sale of intoxicating liquors.</p> <p>At the trial in the Superior Court, before Hammond, J., it appeared in evidence that the defendant had a license as an innholder, and that he also had a license of the first class and another of the fourth class, under the Pub. Sts. c. 100, § 10, to sell intoxicating liquors at his hotel in Pittsfield, being the tenement in question. The government called as witnesses four minors, all of whom testified that they had purchased and drank liquors at the hotel during the time alleged. Two of these witnesses testified that they purchased liquors of the defendant in person, and the other two testified that they bought liquors of the bar-tender of the defendant in the latter’s absence. The defendant introduced evidence tending to show that he had instructed the bar-tender not to sell liquors to minors, or in violation of any provision of his license, and that one of the witnesses, who testified that he purchased liquors of the defendant in person, had in fact purchased them of the bar-tender, and had so testified on a different occasion.</p> <p>The defendant asked the judge to instruct the jury, that, if they should find that the sales testified to by the government witnesses were made by the bar-tender, without the knowledge or consent of the defendant, and against his instructions, then the jury must return a verdict of not guilty. The judge refused so to instruct, and instructed the jury that the question whether the defendant was sincere in his instructions, and whether they were given- in good faith to his bar-tender, was for them, and that they must say whether he was so sincere; that if a sale of intoxicating liquors in the hotel, during the time alleged in the indictment, by any person employed by the defendant to sell liquor at said hotel, was made without the defendant’s knowledge, and the defendant in no way participated in, approved, or countenanced such sale, the defendant would not be responsible for such sale, but that, nothing to the contrary appearing, evidence of a sale by a servant in his master’s shop of his master's goods there kept for sale would, if believed, warrant the jury in finding that the sale was authorized by the master, and that this would be so although the defendant was not on the premises at the time the sale was made j that the whole question of authority was one for the jury, under all the circumstances of the case, and that there was no presumption of law either way. The judge also instructed the jury, that there would seem to be no other way consistent with the defendant’s innocence for them to explain the testimony of the young men who had testified for the Commonwealth, than upon the theory that these young men had committed perjury, and it was for them to say whether or not they believed this to be the fact.</p> <p>At the close of the charge to the jury, the defendant’s counsel stated that he desired to except to the latter portion, among others, of the charge; whereupon the judge stated that he would modify what he had said about perjury, and instructed the jury that, if they could explain the testimony of the witnesses upon any other theory than that they had committed perjury, it was their duty to do so, and that he would leave that question to them without expressing any opinion as to whether it could be so explained.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Receipt for Personalty attached—Insolvency of Judgment Debtor — Discharge of Receiptor.</p> <p>If the receiptor for property attached permits it to go back into the hands of the debtor, who files a petition in insolvency within four months after the attachment, and his assignee takes the property and applies its proceeds for the benefit of the creditors, no action can be maintained on the receipt.</p>

Complaint under the bastardy act, Pub. Sts. c. 85. At the trial in the Superior Court, before Brigham, C. J., the complainant introduced evidence tending to show that she was delivered of a full time bastard child on February 28, 1888; and that the respondent had sexual intercourse with her on the last of May, 1887, at which time the child was begotten.

Replevin of certain goods, brought by the assignee in insolvency of Charles A. Wright.

<p>Personal Injuries — Highway Defect — Due Care — Exceptions.</p> <p>No exception lies to tlie refusal to give an instruction in the language requested, if it is fully covered by the instructions given.</p> <p>If a casual and not strictly accurate statement of law, made by the presiding. judge at a trial to counsel while arguing, does not, when construed in connection with proper instructions to the jury, modify or qualify them, no exception lies thereto.</p>

Contract to recover the amount of a tax assessed upon the real estate of the plaintiff, on May 1, 1887, and paid under protest. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts, in substance as follows. The plaintiff is a duly incorporated religious society, and is the owner of land and a church edifice thereon in Springfield.

<p>Vagrant — Complaint — Time — Surplusage.</p> <p>A complaint for vagrancy, under the Pub. Sts. c. 207, § 42, is supported by proof that the offence was committed during a substantial part of the time covered by the complaint; and an averment that such offence was committed “ continually ” may be rejected as surplusage.</p>

Complaint to the Central District Court of Worcester, alleging that the defendant unlawfully did keep for sale intoxicating liquors.

Tort for personal injuries occasioned to the plaintiff by an alleged defect in Union Street in the defendant town.

Tort for false and fraudulent representations made by the defendant, whereby the plaintiff was induced to take a lease of a mine, and to purchase certain mining machinery. Trial in the Superior Court, without a jury, before Barker, J., who refused to give certain rulings requested by the defendant, and found for the plaintiff, assessing his damages at a certain sum for the depreciation in value of the lease, because of such representations.

Contract on a promissory note,- dated January 5, 1880, made by the defendant to Benjamin F. Robinson, the plaintiffs’ testator. Writ dated December 15, 1885. The defendant filed a declaration in set-off, for a balance due from the plaintiffs upon certain notes made by the testator to him. The answer to the declaration in set-off, among other things, averred payment, and set up the statute of limitations.

Tort, under the Puh. Sts. c. 100, § 21, to recover damages sustained in consequence of the intoxication of the plaintiff’s husband, caused by the sale of intoxicating liquors to him by the defendant. Trial in the Superior Court, before Brigham C. J., who, after a verdict for the plaintiff, allowed a bill of exceptions, the material part of which appears in the opinion.

<p>Personal Injuries — Railroad — Passenger on Platform.</p> <p>In an action by a passenger against a railroad company, to recover for personal injuries, an instruction to the jury that, if the plaintiff, knowing that the train was about to start, was unnecessarily or improperly on the platform of a car, and was thrown off and injured by the starting of the engine with no unusual or unnecessary jerk, he could not recover, is sufficiently favorable to the plaintiff.</p>

Indictment for adultery with one Albino Jefferds in August, 1887.

Coftract for commissions and services in the sale of real estate for the defendant. The first count of the declaration was upon the following agreement signed by the defendant: “ North Adams, Mass., January 27th, 1886.

Writ oe entry, dated August 5, 1887, to' recover a farm in Great Barrington and Sheffield. Trial in the Superior Court, before Staples, J., who directed a verdict for the demandant, and allowed a bill of exceptions, the material part of which appears in the opinion.

Indictment for rape on Bridget Donovan. At the trial in the Superior Court, before Dunbar, J., it appeared in evidence that the defendant, as he was riding in a carriage, overtook Bridget Donovan on the street, as she was returning home from her work, and invited her to ride to her home; and that upon a pretext he drove into some woods, dragged her from the carriage, and had sexual intercourse with her.

Petition for a writ of certiorari to quash the proceedings of the county commissioners of Hampshire in refusing to abate a tax assessed upon the Williston Seminary by the town of Easthampton.

The eirst case was an action of contract against the administrator of the estate of Porter Dickinson, to recover a balance due the plaintiff as the holder and owner of the following promissory note : “ Amherst, January 9th, 1847. For value received, I promise to pay James Kellogg, or order, five hundred dollars, in one year from date, with interest. Porter Dickinson.” Upon the note was the following indorsement: “Amherst, January 8, 1853.

Two ACTION'S OF tort for slander. The declaration in the first case was as follows: “ And the plaintiff says the defendant publicly, falsely, and maliciously accused the plaintiff of the crime of murder, by words spoken of the plaintiff substantially as follows, to wit: ‘ He (meaning the plaintiff) killed her (meaning the plaintiff’s wife, Mary J. Thomas) by his bad conduct (meaning the bad conduct of the plaintiff), and I (meaning the defendant) think he knows more about…

<p>Tobt for personal injuries occasioned to the plaintiff by a defect in a sidewalk of a street in the defendant town. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, which, so far as material, was as follows.</p> <p>The plaintiff was injured, in the month of January, by falling upon ice upon the sidewalk, which was four feet wide, covered by asphalt, or concrete, laid upon the soil, without curbing on either side, and was constructed by the defendant town. There was evidence tending to show that the soil at the edge of the concrete walk, on either side, was higher than the walk, so that water did not flow off; that, at the point where the plaintiff fell, there was a depression in the surface of the concrete walk, to the depth of from one and a half inches to two inches and three quarters at the deepest point, and running out to a level with the rest of the walk in a distance of three or four feet in length and two feet in width, and that water was collected and held there, 'by reason of the conditions stated, whenever l’ain fell, or snow or ice thawed; that the sidewalk sloped; so that the water flowed off the same, except such as was retained by the alleged hollows and depressions in the concrete, and by the soil on either side of it; that, at the time of the alleged injuries, the water over the sidewalk and in the depression was frozen ; and that the surface of the ice was smooth, level, and slippery.</p> <p>The bill of exceptions recited, that “the plaintiff made no specific requests for instructions, but in the argument to the jury her counsel claimed that it was competent for the jury to find the walk defective, because of the formation of ice upon it, produced by such a condition of the surface of the walk, and of the higher edges, and of the general level of the walk being lower than the land on either side, as caused water to be collected and held upon it in the depressions, and over other parts of the walk, and the water was formed into ice, with smooth, level, and slippery surface; and during the charge, in reply to an inquiry from the presiding judge, asserted such claim.”</p> <p>Upon this branch of the case the judge instructed the jury, among other things, as follows :</p> <p>“ The mere fact that a sidewalk of no unusual slope or construction is slippery by reason of a smooth coating of ice, from whatever cause arising, does not constitute a defect. That is, a smooth coating of ice upon a sidewalk of no unusual slope or construction, even if that ice comes to be there by reason of the freezing of water that stands on it, without outlet, still, if it has no unusual slope in its make, or nature of construction, so as to make it peculiarly dangerous, then the walk will not be defective merely because its construction is such that, in the usual action of the elements, ice forms upon it when freezing weather comes, when there is water upon the walk. The freezing of smooth, level ice does not constitute a defect in any way, and the fact that there are such hollows or basins in the sidewalk as to make them fill with level water which cannot pass off, and that level water freezes, if it freezes into smooth, level ice, does not constitute a defect in the way. But, on the other hand, if the slope, or construction, or formation of the sidewalk is such as to induce the formation upon any portion, or part of it, of masses of ice, which, by reason of their shape, or angle of inclination, are peculiarly dangerous, or more than ordinarily dangerous, having something added to them more than the mere quality of level, smooth, slippery ice, then the fact that the conformation of the sidewalk is such as to produce that kind of masses of ice upon it would constitute a defect. For instance, you take a sidewalk which is a level, or substantially level sidewalk ; if there is in it some depression where water stands, if the nature of the construction of the sidewalk is such that the water merely stands level, and when it freezes, it freezes into a smooth, level expanse of ice, that does not constitute a defect. . . .</p> <p>“ So, if there was a formation of the sidewalk tending to make ice that was bulgy, hummocky, and uneven, or in any such shape as to make the travelling over it of a person using due care unusually dangerous and difficult, beyond the travelling over smooth, level ice, then that formation of sidewalk would be sufficiently defective to render a town or city liable. If you find that there was such a formation of this sidewalk as to produce merely, in the natural and ordinary operation of things, smooth, level ice, then that formation would not be a defect.”</p> <p>At the end of the charge, the plaintiff’s counsel excepted to so much of the charge as related to smooth, level, and slippery iee not being a defect under the conditions named in the charge.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Complaint to a trial justice, alleging that the defendant, on February 11, 1888, at North Brookfield, did unlawfully keep intoxicating liquors for sale. At the trial in the Superior Court, on appeal, before Sherman, J., the jury returned a verdict of guilty, and the defendant alleged exceptions, the substance of which appears in the opinion.

<p>Relocation of Way — Assessment of Damages — Order of County Commissioners.</p> <p>County commissioners, on a petition to them under the Pub. Sts. c. 49, § 13, by the mayor of a city, pursuant to a vote of the city council, for the relocation of a way wholly therein, located it anew, and took in so doing a part of an abutter’s land, their order concluding as follows : “No damages were claimed or allowed, and it is ordered by said commissioners that all costs and expenses of construction in the matter of this relocation be paid by the city.” Held, on a petition by the abutter, under § 32, for a jury to assess his damages, that the city was liable under the order for all land damages that might arise.</p>

Tort for personal injuries occasioned to the plaintiff by reason of the want of a railing at the side of a highway in the defendant town. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, which, so far as material, was as follows. The only question was whether the plain tiff was in the exercise of due care at the time of the accident.

<p>Way — Repairs by Highway Surveyor — Liability of Town for Damages — Petition to Selectmen.</p> <p>If a highway surveyor, who has exhausted the appropriation for his district, makes repairs on a way within the ordinary scope of his authority, hut without the written consent of the selectmen, the town, though not hound to pay therefor, is liable, under the Pub. Sts. c. 52, § 15, for damages thereby caused to an abutter.</p> <p>A petition to the selectmen for compensation for such damages alleged that the petitioner was an owner of land on a way, and sufficiently described it; that he had suffered damage from the removal of earth in front of it for the purpose of repairing the way, whereby he became entitled to compensation; and that the repairs were “ordered and made under the direction and authority” of the selectmen, in October, 1885. Held, that the petition was sufficient, under the Pub. Sts. c. 52, § 15.</p>

<p>Grade Crossing of Railroad by Way — Laying out and Construction by City — Certiorari — Injunction.</p> <p>If a city lays out a way forty feet wide across a railroad at grade, under an order of county commissioners authorizing it to he laid out fifty feet wide, the only remedy of the railroad company is by a petition for a writ of certiorari.</p> <p>If a railroad company refuses to construct its proper proportion of a way laid out across its location at grade, under the Gen. Sts. c. 63, §§ 57-60, (Pub. Sts. c. 112, §§ 119, 123-125,) the city within which it is situated will not be enjoined from entering and constructing the entire way across such location.</p>

<p>Will — Lapse of Legacy — Failure of Trust — Residuary Clause — Equity Practice and Pleading — Bill far Instructions — Personal Claim of Party Plaintiff.</p> <p>A testator, after a legacy to his wife absolutely, devised and bequeathed “ all the rest and residue of my estate, real, personal, or mixed,” to two trustees for her benefit during her life, and, at her death, gave all of such estate to trustees, as follows: certain pecuniary legacies to persons named, and “ all the rest and residue of said estate, to be divided among them equally, share and share alike, to my three sisters.” The testator and his wife died at the same time in the wreck of a vessel. Held, that the legacy to the wife passed by the residuary clause.</p> <p>The first legacies to he given under the residuary clause, after the death of the testator’s wife, were gifts of money to each of her trustees “ for the faithful performance of their trust.” Held, that the gifts to the trustees failed with the trust.</p> <p>The two executors of the will, who were also named as trustees for the wife, brought a petition in equity for instructions as to the disposition of the estate, and one of them appeared and asked to file an answer reciting his personal claim against it, hut was not permitted to do so. Held, that he could not file the answer, but might present his claim at his own expense by counsel other than those who appeared for him as executor.</p>

<p>Survival of A ction for Deceit — Personal Injuries — Lease of Dwelling infected by Diphtheria — Contributory Negligence — Evidence.</p> <p>An action for deceit in letting a dwelling-house infected with diphtheria, causing injuries to the person, survives by force of the Pub. Sts. c. IG5, § 1.</p> <p>At the trial of such an action there was evidence tending to show that the lessor knew that the child of a former tenant had died of diphtheria in the house, which subsequently was fumigated by and made satisfactory to the board of health; that he knew the drains to be in bad condition, as to which he misled the lessee by specific statements; and that the lessee did not know that there had been diphtheria in the house. There was also uncontradicted evidence that the lessee was warned at the time of the letting that the lessor was old, forgetful, and incapable, and that he was to deal only with the lessor’s agent, as well as evidence which, it was contended, showed lack of due care on the part of the lessee. Held, that there was evidence for the jury that the lessor knew or ought to have known that there was special danger of infection from the drains, which he was bound to disclose to the lessee, and which he was not warranted in assuming to be removed by the doings of the board of health; and that the question of the lessee’s contributory negligence was also for the jury.</p> <p>Evidence of the condition of the drains, when they were repaired seven months after the lessee took possession, coupled with evidence of what had been done in the mean time, was held admissible to show their condition at the time the lease was made.</p>

<p>Contract upon a promissory note, dated November 16,1867, payable two months from date to the order of the plaintiff, and signed by the defendant. Writ dated December 5, 1887.</p> <p>Trial in the Superior Court, without a jury, before Dewey, J., who found for the defendant, and reported the case for the determination of this court. If the finding was correct, judgment was to be entered thereon; otherwise, for the plaintiff. The facts appear in the opinion.</p>

<p>Lease of Land—Removal of Building at end of Term — Trade Fixtures.</p> <p>A lease of land provided that the lessee might make additions and alterations in a wooden building thereon, which were to enure to the benefit of the premises at its expiration, and that he might erect other buildings on it for manufacturing purposes and remove them within a limit thereafter. The lessee altered and enlarged the wooden building and fitted it with machinery for a box factory, and erected near it a brick engine-house, complete in itself and wholly unconnected therewith, except that a tin flashing attached to the side of the wooden building was fitted closely to the roof of the engine-house to protect it from the weather. The engine and boiler were placed on solid foundations of masonry, the boiler was connected with an iron smoke stack running through the roof, and the engine was coupled with the machinery by belting and shafting. Held, that the engine-house was not an addition to the wooden building, but a building which the lessee had a right to remove, and that the boiler and engine, as well as the machinery, were removable trade fixtures.</p>

<p>Personal Injuries— Collision between Foot Traveller and Sleigh — Due Care.</p> <p>At the trial of an action for personal injuries sustained by the plaintiff in colliding with a horse and sleigh, there was evidence that there was about a foot of snow on the ground; that a way for teams had been broken out, the plough leaving outside of the beaten track a path about eight inches wide; that, as he was walking on the extreme right of this path, the horse and sleigh came along from the opposite direction at great speed, and, as the driver did not turn but, the shafts of the sleigh, which projected sidewise, struck and injured the plaintiff. On cross-examination, he would not admit that he kept in the path in the assertion of a supposed right to do so, and knowing that the sleigh had such shafts, but testified that, although the driver and himself were not on good terms, he did “just the same as I should with anybody else.” Held, that the question of due care on his part was properly submitted to the jury.</p>

<p>Tort for personal injuries received by the plaintiff while in the defendant’s employment as a brakeman. Trial in the Superior Court, before Dewey, J., who ordered a verdict for the defendant, and reported the case for the determination of this court, as follows.</p> <p>The plaintiff, after having been sent to Boston the previous Saturday for an examination as to color blindness, entered into the employment of the defendant on the day of the accident, which took place on Monday, February 7, 1887. He was on that day put as a brakeman upon a local freight train, which ran from Worcester to Boston. He testified that he might have been over the road before six times in all, during several years, as a passenger; that he had previously been in the employment of the city of Worcester, in the sewer department, for several years; and that he had, at an earlier period, when he first came to this country, been in a freight depot in Boston, on vfche Boston and Maine Railroad, as a freight handler.</p> <p>The evidence introduced tended to show, that, when the train reached Cottage Farm Station, it was running at the rate of about fifteen miles an hour; that the plaintiff, with the brakeman of the head car, was on the tender of the engine, the plaintiff having gone there to learn from that brakeman what might be wanted of him; that the brakeman of the head car had just got down on to the moulding on the after end of the tender to draw the coupling-pin to disconnect the engine from the train; that the plaintiff got down upon the moulding of the tender, apparently to help, whereupon the brakeman of the head car told him to get up again, because he was going to let off the train; that the plaintiff, in order that he might mount the head car, swung himself on to the ladder, which was on the outside . of the car, instead of being upon the end of the car next to the tender, so that in climbing the ladder the plaintiff was upon the south side of the head car; that he was struck by a signal post and knocked from the car, receiving the injuries; that the signal post was about ten inches square, and had on its top a round signal box, intended to display signals to engineers of any obstruction upon the track; that at the point where the signal post stood, there were four tracks running into Boston; that the train on which the plaintiff was a brakeman was upon the second track from the north, being the main east-bound track; that the signal post was placed between the south rail and north rail respectively of the second and third tracks from the north, as near as could be half-way between them; that the distance from the south rail of the track on which the train was moving to the signal post was three feet and a half; that the height of the post and shoulder on which the signal box rested was nearly fifteen feet; and that the car, including the ladder, projected two feet and a half beyond the south rail, and that the height of the car from the rail was twelve to thirteen feet.</p> <p>The plaintiff testified, that he had no knowledge whatever of the height of this post; that he had no knowledge of the proximity of this, or other objects, to the track; that he had no directions given him at all, by any person, in regard to the car, or obstructions on the road, or in regard to his duties on the train, other than as it was a local freight train he found that he was wanted anywhere it might be convenient upon the train in the switching, and that when he had once been on the tender before, on returning to the train, he was told to keep near the brakeman of the head car and he would find what to do; and that when he mounted the ladder he looked forward to see if there was anything in his way, but that the smoke from the engine prevented his seeing.</p> <p>The electrical engineer of the defendant testified that the road at this point was on a curve, and that the curve was such that, as the train moved in an easterly direction, its south side would be on the outside of the curve, and this signal post could be seen but a short distance. There was no evidence, on the part of the defendant, contradicting the testimony of the plaintiff, that he was given no directions other than those stated above.</p> <p>The defendant called witnesses to show that an examination had been made on its railroad for fifteen miles west of Boston, including the neighborhood of the Cottage Farm Station, which is some three or four miles from Boston ; that an examination of the permanent structures and buildings on the tracks of the road disclosed that seven structures in that fifteen miles were as near the track as this post, two of them being signal posts, next to this one in succession, and between the tracks, where the road was a four-track road; that the other objects were bridges, abutments, and a telegraph pole; that these signal posts were, in most cases, placed at a greater distance from the track, but the electrical engineer of the company testified that at this place there was no easily practicable position in which this signal could have been placed for the purpose for which it was intended, other than the position in which it was placed, which was to warn the engineer, coming from Boston on the third track from the north, of any train standing at Cottage Farm Station, and was therefore placed upon the right of this track.</p> <p>The defendant asked the judge to rule that the plaintiff could not recover, as the danger to which he had been exposed and which had caused him his injuries was incident to the employment he bad taken upon himself; that there were no facts, special to the case, to take it out of the rule; and that the dangers incident to the employment defeated the recovery by an employee; and the judge, against the plaintiff’s objection, so ruled, and directed a verdict for the defendant. If the ruling was right, judgment was to be entered on the verdict; otherwise, a new trial was to be granted.</p>

<p>Appeal by Almira J. Fuller, one of the children of Almira B. Brooks, from a decree of the Probate Court licensing the administrator of the latter’s estate to sell the whole of her real estate, because a partial sale would greatly injure the residue.</p> <p>The appellant filed the following reasons of appeal: “ First. The real estate which the petitioner seeks to sell was not at the time of the death of said Almira B. Brooks the property of said Brooks, and the administrator of her said estate had no right or interest in the same. Second. Because the said property and real estate which the administrator seeks to sell is now the property of the appellant. Third. Because the decree is not in accordance with the law and decisions of this Commonwealth.” At the hearing, before Devens, J., the following facts appeared. Oliver Greenwood died in 1849, leaving a widow, Phebe Greenwood. His will, which was duly proved and allowed, contained the following clauses:</p> <p>“ I give to my daughter, Almira B. Brooks, the small house near my dwelling-house, with the land under and around the same, to the amount of one acre, to be laid out for the best accommodation of the house with the least injury to the remainder of the farm, to have and to hold the same to her and to her heirs forever.</p> <p>“ I give to my beloved wife, Phebe Greenwood, the use and improvement of all the residue and remainder of my estate, whether real, personal, or mixed, during her natural life, and, if the income shall be insufficient for her comfortable support, the deficiency shall be made-up from the sale of the property, or such part thereof as may be necessary for that purpose, and I hereby authorize my executor hereinafter named to sell and convey at public or private sale the whole or any part of my real estate with the consent of my said wife. And in case my real estate shall be sold as above, I order the proceeds of the sale to be placed in the hands of a trustee or trustees, to be appointed by the judge of probate, the proceeds aforesaid to be applied first for the comfortable support of the said Phebe Greenwood during her life, and after her decease the remainder, if any, to be applied to the- support and maintenance of my daughter, Almira B. Brooks, and her children, and at the decease of said Almira the remainder, if any, to be divided equally among her children, said trustee to use a wise discretion in the expenditure, always behaving reasonably in the premises.”</p> <p>None of the real estate thus devised was ever sold during the lifetime of either Phebe Greenwood or Almira B. Brooks. After the death of Phebe, all the real estate of Oliver Greenwood remained in the possession and enjoyment of Almira B. Brooks, who was the only child of Oliver and also of Phebe Greenwood, until her decease in 1886. The license to sell covered the real estate devised by the will of Oliver Greenwood. The validity of the decree was not questioned, so far as it related to the property to be devised by the first clause of the will, but only to that devised by the second clause. The appellant contended that under said will the real estate described in the petition of the administrator passed to the children of Almira B. Brooks immediately upon her death; that therefore the administrator had no right or interest in said real estate, and that it could not be sold to pay the debts of the estate of said Almira B. Brooks. The appellee contended that said real estate passed to Almira B. Brooks in fee, as the heir at law of Oliver Greenwood, at the decease of Phebe Greenwood.</p> <p>The judge was of opinion that the question of the title to the real estate was not properly before the court, but, if it was, that the title thereof vested absolutely in Almira B. Brooks upon the death of Phebe Greenwood, and that the decree of the Probate Court should be affirmed, and the case remanded for further proceedings; and reported the case for the consideration of the full court.</p>

Two PETITIONS to enforce mechanic’s liens for labor only performed upon houses owned by the respective defendants.

<p>Private Railroad Crossing — Invitation to Public—View by Jury — Due Care by Person killed.</p> <p>At the trial of an action against a railroad corporation for causing the death of a person at a crossing, there was evidence that the corporation had constructed and planked the crossing; that it connected an open freight-yard with an unenclosed lumber-yard, from which a private way used by many persons led to a highway; that there were wheel tracks leading from a town way into and across the freight-yard to the crossing; that teams of all kinds passed over it daily to and from the'freight-yard and lumber-yard; but there was no evidence of the continuous passage of a team over it in either direction between the town way and the highway. The jury took a view of the locality. Held, that there was evidence to go to the jury that the railroad corporation had held out inducements to the public to use the crossing.</p> <p>On the issue whether the person killed was in the exercise of due care, there was evidence that he approached the crossing, driving his horse at a trot; that the outlook along the railroad in one direction was. cut off by a building and by freight cars standing near the crossing, except at a single point about twenty feet therefrom ; that no tvarning signals were given by a train approaching from that direction, and that, as he got upon the crossing and saw’tlie train, he at first checked his horse and then started him again, when he was struck and killed. Held, that there was evidence that he was in the exercise of due care.</p>

<p>Mortgage of Real Estate — Fixtures — Evidence — View by Master.</p> <p>On the issue whether machines in a calico-printing factory were, as between mortgagor and mortgagee, a part of the realty, it was held, upon evidence reported by a master, who had visited the factory and had seen each machine and the mode of its attachment, that his findings that some of the machines were a part of the realty and others were not, could not be said, as matter of law, to be erroneous.</p>

<p>Tort for personal injuries received by reason of an alleged defect upon a sidewalk on Central Street in Gardner, consisting of a rotten plank. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, which, so far as material, was as follows.</p> <p>There was evidence tending to show that Central Street was the principal thoroughfare between Gardner and West Gardner, and was used by a great many people; that, as the plaintiff was walking with a companion along Central Street, his companion stepped on a rotten plank, and, as it gave way, tilted one end of it, against which the plaintiff tripped and fell, receiving the injuries; that the condition of the sidewalk at that point had been very bad; that one of the selectmen was in the habit of passing over the sidewalk at the place in question in going to and from his work; and that neither the selectman, nor an agent of the town employed to prosecute and defend all actions brought by and against it, had any knowledge of the rotten plank or of any other defect in the sidewalk, and had never noticed its condition until after the accident, and that no defect had been called to their attention by any one. There was also evidence that the Fitchburg Railroad, consisting at this place of a single track, crossed Central Street at grade; that the defective portion of the sidewalk was within the limits of its location, and at a distance of eighteen feet from the nearer rail; and that the sidewalk at this point ran along the edge of the platform of the railroad station, which was raised slightly above it, and was the only approach to the station from that side of the track.</p> <p>The defendant asked the judge to rule, that, as matter of law, the action could not be maintained upon this evidence. The judge refused so to rule, and gave instructions to the jury, not otherwise. excepted to. The defendant contended that, if the place of the alleged defect and injury was within the located limits of the railroad, the town was not liable, and requested the judge so to rule. „ The judge refused so to rule, and instructed the jury as follows:</p> <p>“ I instruct you, if these facts be as claimed by the town, namely, in regard to the position of said alleged defect, as hereinbefore stated, the town would still be responsible for the condition of the highway, and for the defect and want of repair, if there were such, unless the defendant town satisfies you, upon the evidence, that it could not remove or remedy such defect, or want of repair, by .the exercise of reasonable care and diligence, without interfering with the authorized and legal construction, use, and operation by the said railroad company of its railroad, including its road bed and track, also the platform and station connected therewith, as described in the evidence.</p> <p>“ In deciding this question, you are to understand and bear in mind that, by a provision of law, at such grade crossings as are referred to in this case, it is made the right and duty of the railroad company, at its own expense, so to guard or protect the rails of its track, by plank, timber, or otherwise, as to secure for the public travelling on said highway a safe and easy passage across its road, and the rights and obligations of the town, in the premises, are subject to and qualified and limited by these rights and duties of the said railroad company as to the construction, maintenance, and use of its railroad and station and platform.</p> <p>“ And the town is not liable for said alleged defect and want of repair, if it could not have been remedied or removed by the use of reasonable care and diligence on the part of the town, and without any substantial interference with the rights and duties of the railroad company.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p> Insolvent Debtor—Sale in Ordinary Course of Business—Fraudulent Preference. </p> <p>The Pub. Sts. e. 157, § 98, providing that, if a conveyance of property by an insolvent debtor is not made in the ordinary course of business, that fact shall be prima facie evidence that the grantee had reasonable cause to believe him insolvent, apply to conveyances made to pre-existing creditors by way of preference, as recited in § 96.</p> <p>At the trial of an action by an assignee in insolvency, to recover the value of personal property alleged to have been purchased in fraud of the insolvency laws, there was evidence that the insolvent had disposed of his business and part of the personal property used by him therein; that he offered the rest of such property to the buyer, who had been in his employment and whose wife was a creditor for money lent to use in the business, for a certain price; that the buyer, though he considered it worth much less, without attempting to get it for less, at once accepted the offer; that the buyer received a bill of sale, took possession of the property, and gave an order for the price on a savings bank, where he-had no money, but where he afterwards deposited a sum in excess of the order; that he went to the bank with the insolvent’s attorney, who drew it and gave it to the insolvent; that the insolvent at once left the State, and that before the money was paid the insolvent was informed, in the buyer’s presence, that a warrant for his arrest had been issued. 1Held, that there was evidence for the jury on the question whether the sale was made in the ordinary course of business.</p>

<p>Two ACTIONS OE TORT, for breaking and entering the plaintiff’s close on Southbridge Street, in Warren, and passing and repassing thence to and from adjoining land, also on that street. The plaintiffs in each case were the trustees of the Methodist Episcopal Church in Warren. The defendant in the first case, who was the owner of such adjoining land, and the defendant in the second case, who was his tenant, justified under the reservation of a right of way in a deed of Nelson Carpenter, the common grantor of the parties.</p> <p>The cases were tried together in the Superior Court, without a jury, before Dewey, J., who ruled that the defendants were not so justified, and, after a finding for the plaintiffs in each case, allowed a bill of exceptions, the material part of which appears in the opinion.</p>

<p>Petition to the Superior Court, under the Pub. Sts. c. 52, §§ 15, 16, for a jury to assess the damages to land, of which the petitioner was alleged to be the owner, by a change of grade in repairing Southbridge Street in Worcester. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Evidence was introduced tending to show the following facts. The respondent lowered the grade of Southbridge Street, which was a highway, for the purpose of repairing it, by taking away an embankment in front of and adjacent to the land in question, and thereby rendered a retaining wall necessary to support the land.</p> <p>On February 9,1869, the petitioner, as party of the first part, executed to the Boston, Hartford, and Erie Railroad Company, as party of the second part, a lease, containing the following provisions, which alone are material:</p> <p>“ Said party of the first part hath demised, leased, and rented, and doth by these presents demise, lease, and rent, for the term of one hundred years from and after the first day of February, A. D. eighteen hundred and sixty-nine (1869), unto the said party of the second part, and its successors, all and singular, the railway of the said party of the first part, extending from a point in the city of Worcester, in Massachusetts, to Allyn’s Point, so called, some miles southerly of the city of Norwich, in Connecticut, with its railway in said city of Norwich, together with all the lands on which said railway is or shall be located within said terminal points, and which are connected with the uses of said railway, and all the rights, easements, franchises, and privileges in connection therewith, or which are appurtenant thereto, and all the turn-outs, branch tracks, depot grounds, stations, depots, superstructures, erections, and fixtures used therewith and belonging thereto, and the lands and premises on which the same are situate and standing, now used and belonging, and to be used or belonging, or in any wise appertaining to said railroad, together with all and singular the real estate, tenements, hereditaments, and appurtenances of the party of the first part.....</p> <p>“ Said party of the second part agrees that it will at all times keep and maintain said railway, in its road-hed, bridges, superstructures, buildings, grounds, fences, and in each and all things pertaining to the same, and in everything pertaining to the rights and uses of the public connected therewith, in as good order, repair, and condition as when received, and replace and keep up all such of the fixtures, rolling stock, and furniture supplies and other property, as shall be shown by an inventory, to be taken and appended to this indenture, as shall or may wear out, or be destroyed by use, fire, flood, accident, design, or removal; so that at all times there shall be upon and connected with said leased railway all things evidenced by such inventory, in as good condition and to as full extent and amount as shown by said inventory; and such new property or renewals as aforesaid shall be and stand the estate of said party of the first part, in the place and stead of any of like property worn out, destroyed, or removed.....</p> <p>“It is mutually stipulated, that, in case the parties hereto shall agree that any portion of the leased real estate, which shall not be needed in the operation of the railway, or that if a change of location of track and station at Worcester, or at any other place, will be best for the public and the parties hereto, said party of the first part may sell and convey such portion of said real estate, agreed upon as aforesaid, and invest the proceeds in a fund to be known as the improvement fund; and such fund may be applied to the purchase of any new or changed line, or grounds and buildings, in the place and stead of those sold; and if, by such change, or purchase, or construction of new buildings, a greater sum be required than is obtained from the sale of property as aforesaid, said party of the first part is to provide for and pay the same, by issue of new stock or otherwise; and said party of the second part shall pay ten per cent per annum on the amount of such expenditure over and above the amount of funds in the improvement fund; and the new track, grounds, and buildings shall be included under this indenture of lease, for the same time and upon the same terms and conditions that the railway is herein leased.....</p> <p>“ Said party of the first part agrees to do all lawful corporate acts and things, upon request of said party of the second part, to enable it to make any additions to lands for the use of the demised railway, or to enable said party of the second part to improve said railway in its curves, cuttings, embankments, or lines of sight, or depot, or other grounds.”</p> <p>Under the St. of 1884, c. 157, the petitioner took the land in question, which lay between its old location and Southbridge Street, as a part of a new site for a freight station and yard, and duly filed its location of the same on October 27,1885. The petitioner then proceeded to remove the buildings, grade the land, build a freight-house, lay tracks, and prepare the premises for station purposes, and for tracks and yard room to be used in connection therewith, including the building of the retaining wall, the work, except that on the wall, being in process at the time the grade of the street was lowered, and not completed until 1887.</p> <p>The New York and New England Railroad Company, which it was agreed was the legal successor of the Boston, Hartford, and Erie Railroad Company, and owned whatever the lease conveyed, was, at the time of the lowering of Southbridge Street, in possession of and operating all the property and franchises of the petitioner under the lease, except that it did not take actual possession of the land in question until it had been completely prepared for use by the petitioner, in 1887, and after the lowering of the street, when the premises were turned over to it, as successor of the lessee. The expense of taking and constructing the new freight station, yard, and tracks was borne by the petitioner, and was to be provided for by the issue of new stock by it, on which the New York and New England Railroad Company was to pay the same rate as rent as it paid on the existing stock, if there was an excess of expenditure over the receipts from real estate at the old location.</p> <p>The petitioner offered the testimony of an agent of the New York and New England Railroad Company, that he had a conversation with an agent of the petitioner, after the work was done in the street, in which conversation the former demanded that the petitioner should build the retaining wall to protect the property. The evidence was admitted de bene, against the respondent’s objection, and was not again referred to by the judge or counsel. The witness testified that he was acting for his company.</p> <p>The respondent asked the judge to rule as follows: “ 1. The evidence does not show the petitioner to be the owner of the premises, in the sense of the statute, and it cannot therefore maintain the petition. 2. The evidence does not show that the petitioner has any other than a reversionary interest in the premises described, and it cannot recover any damages, except to its reversionary interest, after the expiration of the lease. B. This petition cannot be maintained without joining the New York and New England Railroad as a party.”</p> <p>The judge refused so to rule, but ruled that, upon the facts stated in regard to the title of the petitioner and its occupancy of the premises, which were not disputed by either party, the petitioner was to be treated as owner of the property, within the meaning of the statute, and that its right to damages was the same as if the lease had not been given, and that it was not necessary that the New York and New England Railroad Company should be joined as a party.</p> <p>The jury returned a verdict for the petitioner; and the respondent alleged exceptions.</p>

<p>Complaint for the unlawful keeping for sale of intoxicating liquors.</p> <p>At the trial in the Superior Court, on appeal, before Staples, J., evidence was introduced tending to prove that the defendant and one Murphy, with others, were seen together on the Agricultural Fair grounds in Brockton; that Murphy stationed himself behind one of several carriages there standing, while the defendant, with others, went in among them; that the defendant took a tumbler and a bottle from his pocket, and handed them to one of those with him, and thereupon all of them drank except the defendant; that after they had drunk, one of them handed to the defendant what was thought to be a silver half-dollar, which the defendant took and put in his pocket; that subsequently Murphy was seen to speak to three or four persons, and the transaction was repeated; that the defendant and Murphy did not drink anything on either occasion; that after the second occasion the defendant was arrested and taken to the lockup, where he was searched, and bottles containing whiskey were found upon his person. A witness was asked, against the objection of the defendant, as to what took place immediately after the defendant was arrested and taken away, and was permitted to reply that he saw one of the persons that had been drinking among the carriages give something to Murphy, who' took it, but that he did not know what it was.</p> <p>The judge instructed the jury not to consider the evidence of what occurred after the defendant was taken away, unless they found that the defendant and Murphy were acting together in regard to what was done between the carriages, and were confederates in a common enterprise.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Complaint for keeping and maintaining a common nuisance, to wit, a certain tenement in Brockton, used for the illegal keeping and illegal sale of intoxicating liquors, on May 1, 1887, and “ on divers other days and times between that day and the 18th of September,” 1887.</p> <p>At the trial in the Superior Court, on appeal, before Staples, J., there was evidence tending to prove that the tenement was a dwelling-house with four rooms, each room about twelve feet square; that it was situated on a private way in Brockton; that a good many persons had been seen going into and out of the house nearly every night; that, about September 1st, three men were seen to come out of the house drunk; that the defendant had been seen, prior to September 18th, around the building, but had not been seen to go into it; that, on July 24th, the house was duly searched upon a search-warrant; that there were found eighteen empty beer bottles in the kitchen, a jug and a bottle, each with a little whiskey in it, and a small glass wet with whiskey, in other rooms; that at the time of the search the defendant was sitting by the stove in one of the rooms; and that there were nine men there standing around the room, two of whom .were under the influence of liquor.</p> <p>Evidence was also introduced, that, on September 18th, officers entered the house with a search-warrant; that, when they went in, the defendant stood in the middle of the floor with a pint bottle in one hand and a glass in the other, with a group of men around him; that an officer attempted to take the bottle, but the defendant put it behind him, when one of the group took it and threw it out of the window; that there was a little whiskey in the glass held by him; that, during September 18th, the defendant had been seen to leave the premises, and to return with a bottle in his pocket and a package under his arm; that he was then seen to take a bottle out of his pocket three times, and to give liquor to people in the house; that the defendant, upon his arrest on that day, was asked if he desired to lock up the house; and that the defendant thereupon told the men present that they must go out, and also told another person to fasten the windows, and gave such person the key of the house with which to lock it up.</p> <p>The defendant contended that the evidence as to what occurred, and was seen to occur’, on September 18th, was inadmissible, and asked the judge so to rule, as well as to rule that there was not sufficient evidence to go to the jury. The judge refused so to rule, and instructed the jury that the evidence as to September 18th was not competent except upon the question as to who kept the place during the time alleged, and that upon the question as to the use of the tenement as charged it was not to be considered.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Devise in Trust — Remoteness.</p> <p>A testator devised certain real estate to trustees, in trust, to pay the income thereof to his daughter N. during her life; on her decease, to pay the income of a certain portion of such estate to her daughters A. and M. during their lives, and, upon their decease, to convey “said estate” in fee to the heirs at law of A. and M.; upon the decease of N., to pay the income of the remaining portion of the estate “ to her children ” during their lives, and “ as the children of N. successively decease ” such remaining portion was “ to be conveyed in fee to the heirs at law of all the children of N." At the death of the testator, N. had children living, and it was possible that she might have a child horn afterwards. Reid, that the devise over to the children of N. was of distinct shares, and that the limitation over to the heirs at law of such children as were living at the death of the testator was not void for remoteness, and that the possible partial invalidity of the devise in case of an after-born child to N. would not defeat the devises to such children.</p>

<p>Constitutional Law — Defence to Action on Judgment in Personam against Non-resident — Writ of Error.</p> <p>Under the fourteenth article of the Amendments of the Constitution of the United States, a defendant in an action brought here upon a domestic judgment in personam against him may set up in defence, that he was at the time the original action was brought a non-resident, and neither was served personally with process nor appeared therein; and he is not obliged to resort to a writ of error to invalidate the judgment.</p>

Complaint to a trial justice, for keeping and maintaining a common nuisance, to wit, a certain tenement in Brookfield used for the illegal sale a.nd keeping of intoxicating liquors. In the Superior Court, on appeal, the defendant, after verdict and before judgment, moved in arrest of judgment, on the ground that the complaint covered a future period of time, and did not alíese an offence that had been committed.

Two actions of contract by the receiver of the Lancaster National Bank of Clinton, upon three promissory notes, amounting in all to six thousand dollars, payable to the order of the bank and made by the defendant, each note bearing this indorsement: “ Secured by one hundred seventy-three (173) shares Erie Tel. & Tel.

Complaint to the Police Court of Brockton, for keeping and maintaining a common nuisance, to wit, a certain tenement used for the illegal keeping and sale of intoxicating liquors. The copy of the record of the police court, transmitted to the Superior Court, on appeal, so far as material, was as follows: “Commonwealth of Massachusetts. Plymouth, ss. Police Court of the City of Brockton. Commonwealth v. John Russell. On complaint of J. H. Chase, for common nuisance.

<p>Two BILLS in EQUITY, filed in the Superior Court on May 23, 1887, to prevent the taking of water from a great pond by the defendant city, as authorized by the St. of 1886, c. 353.* The cases were heard together, by Mason, J., upon the bills, answers, and an agreed statement of facts, and were as follows.</p> <p>The North Watuppa Pond is a great pond, situated neat the city of Fall River, about four miles long and from three fourths of a mile to a mile and a quarter wide, fed by springs beneath it, the surface water from the surrounding land, and a few insignificant streams, and is connected by a narrow passage with the South Watuppa Pond, which is also a great pond. In the body of the North Watuppa Pond there is no perceptible current whatever, but at or near the passage into the South Watuppa Pond there is generally a slight current toward the latter, which at times is reversed if a southerly wind is blowing. Both of these ponds have always been freely used for fishing, fowling, boating, the cutting of ice, etc., by the public. The Fall River, an unnavigable stream, is the only outlet of both ponds, receiving water from no other source, and flows out of the South Watuppa Pond, through the city, into Mount Hope Bay, with an average daily flow of twenty-six million gallons. The descent of the river for a mile and a half of its course is gradual, but in the last half-mile it falls rapidly for one hundred and twenty-nine feet, down a succession of ledges, into the bay. Upon the Fall River there are valuable water privileges of an assessed value of 1844,000, which have been utilized for power for many years, belonging to six or seven corporations, whose mills are built over the stream, and who own the bed thereof, and nearly all the land on either side from the head of the fall to tide water.</p> <p>The Troy Cotton and Woollen Manufactory, one of such corporations, was the owner of the privilege nearest the ponds, and its dam, built by a predecessor in title in 1813, and maintained ever since, raised the natural level of the Watuppa Ponds three feet in height, and held back their waters.</p> <p>The Watuppa Reservoir Company was incorporated under the special statute of 1826, c. 31,* for the purpose of constructing a reservoir of water in the Watuppa Ponds for the benefit of the manufacturing establishments on the Fall River, the owners of such establishments and privileges being the sole members of the company, and owning all of its capital stock. In 1827 the company built a dam at great expense across the river, below that of the Troy Company, of such height as to flow the pond two feet higher than that dam, and acquired, by the expenditure of large sums of money, rights of flowage as high as its dam all around both ponds, and on both sides of the river above it, and still continues to maintain the reservoir so formed, and still, with few exceptions, owns and exercises these 'rights of flowage. The expenses of the company are met by assessments upon its members, who are the successors in title of its original members, for whose benefit exclusively it is maintained, and it derives no income from the waters which it controls.</p> <p>In 1871 the defendant city, as authorized by the St. of 1871, c. 183, took one and a half million gallons daily of the waters of the North Watuppa Pend for the purpose of providing its inhabitants with pure water, and paid to the owners of the manufacturing establishments on the Fall Fiver over $50,000 for damages caused by such taking.</p> <p>In 1886 the Legislature passed an act' (St. 1886, c. 353) granting to the defendant city the right to take an additional million and a half gallons daily of the waters of the North Watuppa Pond for all domestic uses, the extinguishment of fires, and for the public uses of the city, without liability to pay any damages other than the State would be legally liable to pay, upon condition that the city, before taking the water, should pass a vote by its city council, and record it in the registry of deeds, stating the quantity to be taken and withdrawn. The city council, on November 1, 1886, passed the requisite vote, -which, on November 6, 1886, was duly recorded in the registry of deeds, by which the city took the quantity of water provided for in the act from the Noi’th Watuppa Pond, in addition to that taken by it under the act of 1871.</p> <p>The city thereupon proceeded to draw, and is now drawing, from the pond a portion of the waters so taken, and contends that it has the right so to do without payment of any compensation to the plaintiffs, and that the Reservoir Company and the manufacturing establishments on the Fall River have no rights or privileges in the same as against the city. The amount of water taken under such vote, and actually withdrawn from the pond, substantially diminishes the flow of the stream, and causes substantial injury to the water power at each privilege, and amounts so far in all to about 1,700,000 gallons daily on an average. The city derives a revenue from the water drawn under both statutes, which is applied to the payment of the expense of running the water-works. There has always been a deficit in such expenses, decreasing from year to year, in which is reckoned interest on the outlay, which has been met by appropriations by the city. These appropriations pay for large quantities of water used by the city for extinguishing fires, watei’ing streets, flushing sewers, and in the engine-houses, school-houses, and other public buildings belonging to or used by the city; and the cost to the city of this water is probably less than the rates chai-ged to other consumer's.</p> <p>The judge ordered the bills to be dismissed; and the plaintiffs appealed to this court.</p> <p>The cases were argued at the bar in March, 1888, and after-wards were submitted on the briefs to all the judges.</p>

<p>Devise with Full Power of Disposition — Conveyance in Fee.</p> <p>A testator devised land to a daughter, “to be kept and retained by her as long as she shall live, and to be disposed of as to her seems proper at her decease, ” with no devise over. Held, that she could convey a good title in fee.</p>

Contract to recover for breach of a bond for a deed, given, in the penal sum of three hundred dollars, by the defendant to the plaintiff. Trial in the Superior Court, without a jury, before Staples, J., who found for the plaintiff, and ordered execution to issue to her i for f29.33.

Tort for personal injuries occasioned to the plaintiff while in the employment of the defendants. Writ dated January 4, 1888.

<p>Complaint for keeping intoxicating liquors with intent unlawfully to sell the same in this Commonwealth. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict of guilty. The defendant then filed a motion to set aside the verdict, for the reason that, “ after the said cause was committed to the jury, and while the jury were deliberating on ' the case, the jury were allowed to separate, and did separate without agreeing on a verdict, and afterwards reassembled in the jury-room and deliberated further upon the case, and after-wards agreed upon a verdict.”</p> <p>At the hearing upon the motion the following facts appeared. The jury retired to consider their verdict, and, after being out several hours, the judge ordered supper to be furnished them; and as the officer was about to take the jurors out, one of their number complained that he did not feel well, and did not wish anything to eat or to go out to supper, and requested the judge to allow him to remain in the jury-room. The judge granted the request, and permitted the juror so to remain under charge of a court officer, while the other eleven went out to an eating saloon, some twenty rods from the court-house, and had supper under charge of other officers of the court, being absent from the jury-room from thirty to forty minutes. The officers in charge of the jurors did not hear them talk about the case, although with them all the time during their absence from their room, and upon their return the case was again considered, and a verdict agreed upon.</p> <p>Upon these facts, the judge overruled the motion; and the defendant alleged exceptions.</p>

Complaint by Daniel W. Hammond to the Police Court of Haverhill, for an unlawful sale of intoxicating liquors at Haverhill, on December 26,1887. In the Superior Court, on appeal, before the jury was impanelled, the defendant moved to quash the complaint for the following reasons: “1. Because the complainant therein, Daniel W. Hammond, is not the mayor or one of the board of aider-men of the city of Haverhill. 2.

<p>Appeal in Criminal Case to Superior Court — Time of Transmitting Certified Copies.</p> <p>The certified copies to he sent, under the Pub. Sts. c. 154, § 39, and c. 155, § 60, to the Superior Court, on an appeal in a criminal case, by a trial justice or by a police or district court, may be filed at any time during the term then next to be held in the county, and before the trial.</p>

Tort for an assault and battery. At the trial in the Superior Court, before Mason, J., the defendant admitted that he committed the assault, on May 12, 1887, at seven o’clock P. M., by striking the plaintiff, and then offered to show that in his absence his wife had been indecently insulted by the plaintiff at four o’clock P. m. on the same day, and that he had been informed of that, fact only ten minutes before the assault, which occurred when he met the plaintiff for the…

<p>Complaint for keeping and maintaining a common nuisance, to wit, a tenement át Brockton, used for the illegal keeping and illegal sale of intoxicating liquors, from May 1,1887, to December 9,1887.</p> <p>At the trial in tbe Superior Court, on appeal, evidence was introduced tending to show that the defendant kept a hotel, known as the American House, comprising the whole of the second story of a building situated at the corner of Church Street and Montello Street in Brockton; that the first story, with the exception of entrances leading from the side and rear of the building to the second story, was divided into four rooms adapted for business purposes; that on two occasions before October 7,1887, the second story was duly searched and intoxicating liquors were found in one of its rooms; that after October 7 one of the rooms on the first floor, which had been unoccupied up to within a few days of that date, was fitted up as ,a bar-room, and subsequently intoxicating liquors were there kept and sold by the defendant; that this room was connected with a room in the second story by means of a dumb-waiter; and that intoxicating liquors were sold in such room in the second story, being brought up on the dumb-waiter from the bar-room below.</p> <p>The defendant requested the judge to rule, that, during the time the bar-room was unoccupied, that room and the second story were separate and distinct tenements, and the evidence offered could be applied to but one of them, and that, if the jury should find that the tenements were so separate and distinct during that time, they should acquit, unless the government should elect upon which tenement it should claim a conviction.</p> <p>The judge refused so to rule, and instructed the jury as follows: “The government must be confined to the charge made, that of the single offence of keeping one tenement. A tenement may consist of a single room or a series of contiguous rooms, constituting the whole or part of a building, under the actual or constructive occupancy and control of the same person, and used for a common purpose. In the present case the government rely upon the fact of the defendant's keeping a hotel called the American House. That is the only tenement for the use of which the defendant can be held liable in this case. What rooms are a part of that tenement is a question of fact for the jury.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Complaint for keeping and maintaining a common nuisance, to wit, a tenement at Brockton, used for the illegal keeping and illegal sale of intoxicating liquors, from May 1, 1887, to December 13, 1887.

<p>Offence against Town and County of Nantucket—Qualification of Inhabitants as Grand and Traverse Jurors—Warning of Town Meeting for Listing and Drawing Jurors — Forgery of “ Discharge for Money.”</p> <p>The inhabitants of the town and county of Nantucket, which are territorially the same, are not disqualified by reason of interest to serve as grand jurors in presenting an indictment for an offence against the town or county, or as traverse jurors at the trial, or to act officially in listing and drawing such jurors.</p> <p>A person was sworn as one of a grand jury, and acted with them in their deliberations and in the presentment of an indictment, his name having been placed in tile jury box and drawn and returned by the selectmen in response to a venire, although previously the town had ordered it to be stricken from the jury list. Held., that, in the absence of evidence of his personal disqualification, the indictment was not invalidated by the irregularity by which he came to serve.</p> <p>At the trial of an indictment for forging and uttering, with intent to defraud a town or county, certain writings, each of which was described as a “ discharge for money,” and purported to be a bill rendered to the town or county and duly receipted upon payment, it appeared that the bills so receipted were forged by the defendant, who was a town and county officer, and were presented by him to the disbursing officers of each as vouchers for the reimbursement of moneys assumed to have been expended by him, but without authority, on behalf of each; and that the amounts therein set forth were duly paid to him, no other writing or claim for such alleged reimbursement being presented by him. Held, that the indictment was sufficient, and that there was no variance.</p>

Indictment for keeping intoxicating liquors for sale at Attleborough, on September 30 and October 8, 1887, with intent unlawfully to sell the same in this Commonwealth.

<p>Evidence of Accomplice — Corroboration.</p> <p>At the trial of an indictment against two brothers for the burning of a barn, a boy, admitted to be an accomplice, testified that they set fire to the barn; that on a day prior thereto one of them expressed a wish that it might be a light night so that the barn might be set afire, and that on the day of the burning, during which he was at their house, they taunted the owner of the barn with regard to evidence previously given by him on a complaint against them. There was evidence from others, that the defendants had on other occasions taunted the owner of the barn because of such evidence, and threatened him with various harm; and that one of them, in the other’s absence, had threatened to burn the barn. The defendants, who denied at the time of their arrest that the boy was at their house on the day of the burning, testified that he was at their house on that day. Held, that there was evidence tending to corroborate the boy’s testimony.</p>

<p>Complaint to the Police Court of Haverhill for keeping intoxicating liquors, on November 11, 1887, with intent unlawfully to sell the same in this Commonwealth.</p> <p>In the Superior Court, on appeal, the defendant filed a plea in bar alleging these facts. The defendant was employed, from August 27, 1887, to November 12,1887, by one Wentworth, as a bar-keeper, to sell intoxicating liquors at the Eagle House in Haverhill, where, on November 11, 1887, intoxicating liquors were duly seized. Subsequently, a complaint was made against him for the illegal keeping of such liquors. On November 14, 1887, a complaint was made against Wentworth for keeping and maintaining a common nuisance, to wit, a tenement used for the illegal sale and illegal keeping of intoxicating liquors from August 20, 1887, to November 12, 1887, at such Eagle House. The city marshal of Haverhill, who prosecuted the latter complaint, understood that the defendant was ready and willing to testify against Wentworth, and needed and intended to use him as a witness ; and, without having any conversation with the defendant, duly summoned him as a witness to testify against Wentworth. The defendant attended the police court as a witness, and was ready and willing to testify against Went-worth, all' of which Wentworth knew, and in consequence thereof pleaded guilty to the complaint.</p> <p>At the hearing, before Bacon, J., on the plea and a demurrer thereto, it appeared that there was no express agreement made with the defendant, or with any representative of his, by the government to protect him from prosecution. The judge overruled the plea.</p> <p>The defendant was then tried, and the jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Appeal, by Josiah A. Ellsworth, from a decree of the Probate Court allowing the account of the executor of the will of Anna Rowe. The will contained the following provisions which alone are material: “ 3. I constitute and appoint William Webster, attorney at law, now of 28 State Street, Boston, as executor and trustee under this will. ... 4.

Tort, against the manager of the Troy and Greenfield Railroad and the Hoosac Tunnel, for personal injuries occasioned to the plaintiff, a railroad brakeman, by catching his foot in an unblocked frog.

<p>Fire communicated from Locomotive Engine— Cause of Action — Damages — Former Judgment—Arbitrators.</p> <p>A judgment against a railroad company for damages, sought to be recovered in one count, to two detached lots of woodland by a fire, set by a locomotive engine on one lot and thence spreading across an intervening lot to the other, is a bar to a subsequent action for damages to the latter lot by the same fire, on the ground that arbitrators, upon whose award the former judgment was entered, did not include therein the damage to such lot.</p>

<p>Petition for the assessment of damages for land taken by the town of Hudson, under the St. of 1883, c. 149, on Gates Pond, a great pond in Berlin.</p> <p>Trial in the Superior Court, before Barker, J., who, after a verdict for the petitioners, allowed a bill of exceptions, which, so far as material, appear in the opinion.</p>

Writ oe entry, dated December T, 1886, to recover a parcel of land on Fruit Street in Worcester. Plea, nul disseisin. At the trial, in the Superior Court, without a jury, before Aldrieh, J., the following facts appeared.

<p>Devise ivith Power to Sell — Reservation of Life Estate.</p> <p>A testator, by his will, “ meaning and intending to make honorable and liberal provision ” for his wife, devised to her an estate for life in his entire estate, “ with liberty to use and appropriate so much of the principal in addition to the income as she may deem necessary for her comfort and support,” with power to sell “ the whole or any part of ” such estate “ at her discretion,” the remainder after her death passing to his heirs at law. Held, that the wife might, in good faith and without regard to the rights or interests of such heirs at law, reserve a life estate in the real estate, and sell the remainder to obtain means for her support.</p>

Petition to the Superior Court, filed on November 21, 1887, alleging that the petitioners were the owners of land on a street in Brockton; that on June 5, 1886, the city council of Brockton established the grade of such street, according to a plan of the city engineer then on file, and passed an order for specific repairs to be made thereon to bring it to the grade so established; that such repairs were duly made, and the grade of the street was lowered, to the damage of the…