Volume 149 — Massachusetts Reports

<p>Savings Bank — State Tax — Banking Building — Exemption — “Deposits.”</p> <p>Under the Pub. Sts. c. 13, § 20, exempting from a State tax so much of savings bank “ deposits as are invested in real estate used for banking purposes,” the exemption extends to the whole of a bank building erected by such a bank under the authority conferred by the Pub. Sts. c. 116, § 20, cl. 7, and is not confined to that part of it actually used in the transaction of its business.</p> <p>The “ deposits ” exempted from such tax denote all the funds received from depositors and held by the savings bank for investment, including profits and the guaranty fund required by the Pub. Sts. c. 116, § 24.</p>

<p>Complaint on the Pub. Sts. c. 101, §§ 6, 7, to the Police Court of Newton, for keeping a common nuisance on the first day of August, 1888, and on divers days between that day and the tenth day of September, 1888.</p> <p>Trial in the Superior Court, on appeal, before Mason, J., who allowed the following bill of exceptions :</p> <p>“ The defendant duly pleaded in bar of said complaint that he was tried and acquitted on a complaint relating to the same tenement, and charging the same offence, on the tenth day of September, 1888, by said police court, said complaint covering a part of the time alleged in the complaint on trial, and it was admitted at this trial that on said complaint he pleaded not guilty; that one witness for the government was heard at a trial thereon; and the case continued until the tenth day of September, 1888, when the court nol pros'd the complaint and discharged the defendant. The defendant claimed, and asked the court to rule, that the above facts would be a bar to the complaint on trial, but the court refused so to rule, the defendant excepting; and on a trial upon the merits, the jury convicted the defendant.”</p>

<p>Complaint — Sale of Skimmed Milk — Notice to or Knowledge of Buyer — Question of Fact for Jury.</p> <p>At the trial of a complaint, on the St. of 1886, c. 318, § 2, for selling milk not of the standard quality, there being evidence that the milk was skimmed milk and sold from a measure duly marked, the jury were instructed that the defendant would be liable unless he sold the milk not as pure milk but as skimmed milk, and, further, that he would be liable unless the buyer had notice or knowledge that the milk was skimmed milk. Held, that the latter instruction was erroneous.</p>

Bill in EQUITY by the administrator of the estate of Perez Cushing, to recover certain personal property of the intestate claimed by the defendant as a gift mortis causa from the intestate to her. Trial in the Superior Court, upon issues to a jury, before Dunbar, J., who ordered a verdict for the plaintiff; and the defendant alleged exceptions. The material facts are in the opinion.

Trustee process. Writ dated November 15, 1886. The Globe National Bank, summoned as trustee, filed an answer on October 1, 1887, which alleged, in substance, that on November 15, 1886, the date of the service of the writ upon the trustee, there was deposited with it, to the credit of the defendants, who were among its depositors, the sum of $927.10, and that the trustee had in its hands and possession no other goods, effects, or credits belonging to the defendants or either…

Contract upon an account annexed, for $162, for services in procuring a pension for the defendant. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows.

<p>Bill tn equity, filed November 3,1888, to terminate a trust for the benefit of the plaintiff under the will and codicil of his father, Wilbur F. Claflin, in the residue of his estate, against the trustees under the will and the plaintiff’s mother and brother. The answer of the mother and brother admitted that the plaintiff had the entire beneficial interest in the principal and income of that portion of the trust fund held in trust for him, and made no claim to the same adverse to his right. Hearing before W. Allen, J., who ordered the bill to be dismissed; and the plaintiff appealed to the full court. The case, so far as material, is as follows.</p> <p>Wilbur F. Claflin at his death left a-widow and two sons, of whom the plaintiff was a minor. The will, which was dated July 27, 1885, and named William Claflin, James A. Woolson, and Horatio Newhall as executors ’ and trustees, provided in the second clause that the sum of $50,000 might remain in the hands of one of the executors for the period.of five years, the income during that time to be equally divided between the wife and the two sons, the principal at the end of that period to fall into the residue of the estate; in the sixth clause, that a trust company should hold $100,000 in trust to pay the net' income of three several sums of $30,000 to the wife and sons during their lives, and to pay over the principal of such sums at their death, as they should appoint by will; in the ninth clause, that the persons named as executors and trustees in the will should hold $60,000 to pay the net income of $20,000 to his wife for five years, and, if she should die before the end of that time, to pay over the principal as she should appoint by will, or if she should live to the end of that period, to pay it over to her, and further to pay to each son the net income of $20,000 for ten years, and, if either of them should die before the end of that time, to pay over that amount as he should appoint by will, or, if either of them should live to the end of that period, To pay it over to him; and in the eleventh clause as follows :</p> <p>“ Eleventh. All the rest and residue of all my personal estate I give, bequeath, and devise to William Claflin, James A. Woolson, and Horatio Newhall, all aforesaid, and to the survivors of them, but in trust nevertheless for the purposes following, viz.: to sell and dispose of the same, and to divide the proceeds equally among my wife, Mary A. Claflin, Clarence A. Claflin, my son, and Adelbert E. Claflin, my son, or their heirs by representation.”</p> <p>The codicil, which was dated August 6, 1885, provided that, “ Whereas in item ‘ eleventh ’ in said will I directed the three trustees therein named, viz. William Claflin, James A. Wool-son, and Horatio Newhall, ‘ to sell and dispose of the same, and to divide the proceeds equally among my wife, Mary A. Claflin, Clarence A. Claflin, my son, and Adelbert E. Claflin, my son, or their heirs by representation,’ now then I revoke and annul the provision of said will as above set forth, and instead thereof I declare the trust in the words following, which words are to be taken as a part of said will instead of the words revoked and annulled, viz.: to sell and dispose of the same, and to pay to my wife, Mary A. Claflin, one third part of the proceeds thereof, and to pay to my son Clarence A. Claflin one third part of the proceeds thereof, and to pay the remaining one third part thereof to my son Adelbert E. Claflin, in the manner following, viz. ten thousand dollars when he is of the age of twenty-one years, ten thousand dollars when he is of the age of twenty-five years, and the balance when he is of the age of thirty years.”</p> <p>The will and codicil were duly admitted to probate, and the executors proceeded to settle the estate according to their terms; and when the plaintiff reached the age of twenty-one years the trustees paid over to him the sum of $10,000.</p> <p>The plaintiff contended that he had the entire beneficial interest both in the income of the third part of the rest and residue of the estate and in the property itself, and that no reasons existed why the same should be longer held by the trustees, as such further holding caused him unnecessary inconvenience and expense.</p>

Bill in equity, under the Pub. Sts. c. 151, § 2, cl. 11, and the St. of 1884, c. 285, to reach and apply certain letters patent in payment of a debt due to the plaintiff from the defendant.

<p>Contract against the defendant as acceptor of certain orders drawn by John F. Mead to the order of the plaintiff, and given in payment of building materials furnished and to be furnished by him to Mead, who was erecting a building under a contract, dated March 1, 1882, between the defendant and himself. The case was submitted to this court on an agreed statement of facts, which was filed on April 18, 1888. The case came on for argument in January, 1889, when the plaintiff for the first time filed a motion to discharge the agreed facts. . The material facts appear in the opinion.</p>

<p>Intoxicating Liquors — Licenses — Limit of Number — Statute.</p> <p>Under the St. of 1888, c. 340, proportioning to population the number of licenses that cities and towns may grant for the sale of intoxicating liquors, and providing that “ any license granted contrary to or in excess of the provisions of this act shall be void,” a license duly granted by a town after the act took effect is void if the number already issued by it and then in force exceeds or equals the number permitted by the act.</p>

Complaint to the District Court of East Norfolk for keeping and maintaining a common nuisance, to wit, a tenement in Weymouth used for the illegal sale and keeping for sale of intoxicating liquors, from July 1, 1887, to April 8, 1888. At the trial in the Superior Court, on appeal, before Sherman, J., it was admitted that, on December 6, 1887, the defendant, a druggist, was granted a license of the sixth class, to expire on May 1,1888.

<p>Statutes of Distribution — Descent of Real Estate.</p> <p>Under the Pub. Sts. c. 125, § 1, cl. 1 and cl. 5, relating respectively to the descent of the real estate of an intestate, in default of children or surviving brothers or sisters, to his lineal descendants, or to the issue of such deceased brothers and sisters, and providing that “if all such descendants” (or issue) “are in the same degree of kindred to the intestate they shall share the estate equally; otherwise, they shall take according to the right of representation,”—the nearest descendants or issue in equal degree of kindred to the intestate are to take per capita, and those in more remote degree per stirpes.</p>

<p>Boston — Improvement of Stony BrooTc— Action — Statutory Remedy — Arbitrament and Award — Negligence — Nuisance.</p> <p>The St. of 1874, c. 196, § 1, authorized the city of Boston to improve Stony Brook, and § 2 gave a remedy to “any person injured in his property by any of the acts ” of the city in so doing, while § 9 contained a proviso that the statute should not be construed to “authorize any interference with the estate owned” by a corporation on the brook, or with “its rights in said brook as to the use and purity of its waters.” The corporation brought an action to recover, in certain counts, for damage caused by the setting back of water upon its premises from the negligent manner in which the city did the work below its estate, and, in another count, for that resulting from a scarcity of water during a portion of the year, owing to the changes made above its estate; and referees made an award to the corporation in a gross sum for both kinds of damage. Held, that the city was liable for the setting back of water due to its negligence, but that, in the absence of evidence that the scarcity was due to any negligence on its part, the referees had no power to assess damages therefor; and that the award, as it afforded no means of determining the amount assessed for the latter damage, must be set aside.</p>

<p>Scire facias to charge as trustee the executor of the will of Joseph Kelley, who was summoned as trustee of Henry H. Packer in an action brought by the plaintiffs against Packer. Writ dated January 26, 1888. The answer was as follows:</p> <p>“1. Nul tiel record.</p> <p>“ 2. The defendant says that, as executor of the estate of said Kelley, he gave, in June, 1884, a bond for the faithful discharge of his trust; that this suit was not commenced within two years from the time of the giving of said bond, as required by Pub. Sts. c. 186, § 9 ; that therefore said defendant cannot be held to answer to plaintiffs’ suit.</p> <p>“ 3. The defendant further says, that said Kelley died June 2, 1884, after said original suit was begun, but before said trustee was charged, and before judgment in said suit was rendered; that letters testamentary were granted to said executor on June 23, 1884; that the estate of said Kelley was found to be insolvent, wherefore, on June 9, 1885, said executor represented to the judge of probate for the county of Suffolk the condition of said estate; that on June. 15, 1885, a commission of insolvency issued to certain commissioners to receive and examine all claims against the estate of said Kelley, and to report thereon, all of which appears of record in the Probate Court for the county of Suffolk; that said commissioners gave due notice of said commission, and received and examined all claims presented to them; that the plaintiffs did not so present their claim within six months after the appointment of said commissioners, as required by Pub. Sts. c. 137, §§ 9, 10; that no notice of any sort of this claim was ever given to said court or to said executor other than that given by this writ of scire facias ; that on April 19, 1886, an order for distribution of said estate issued from said court, and a distribution made immediately by said executor, as therein directed, wherefore the said defendant cannot be held to answer to said suit.</p> <p>“ 4. The defendant further says, that by virtue of Pub. Sts. c. 137, § 31, this suit cannot be maintained, it being brought after the representation of insolvency of said estate, and being for a demand in no way entitled to preference, and not being one that would not be affected by the insolvency of said estate, and the assets of said estate not proving sufficient to pay all claims allowed by said commissioners.</p> <p>“ John L. Ayer, executor, by his attorney, Fred. A. P. Fiske.”</p> <p>The plaintiffs demurred to the answer, and assigned for cause of demurrer, “ that said answer, and each and every section thereof, and each and every defence therein attempted to be set up in manner and form as averred, is insufficient in law for the defendant to maintain any defence to the plaintiffs’ writ.”</p> <p>The Superior Court sustained the demurrer; and the defendant appealed to this court. The facts appear in the opinion.</p>

<p>Equity Jurisdiction — Injunction — Suit in another State.</p> <p>This court will not restrain the prosecution of a suit between citizens of this Commonwealth, pending in a court of another State which has jurisdiction of the subject matter and of the parties, on the ground that the decision of such court may differ from that of this court or from that of other courts of equal authority.</p>

<p>Insane Person — Guardianship — Domicil — Prohate of Will—Jurisdiction.</p> <p>If an insane person, of sufficient' mental capacity to change his domicil, in good faith removes his residence to another State pending proceedings here for the appointment of a guardian over him, and if his residence there continues until his death, and is assented to by his guardian after his appointment, he is such a resident of that State that its courts have jurisdiction of the original probate of his will.</p>

<p>Tax — Personal Estate of Deceased Person — Executor — Action by Collector— Statute of Limitations.</p> <p>A tax assessed upon the personalty of a deceased person to his executor is the debt of the latter; and the collector of taxes may, under the Pub. Sts. c. 12, § 21, bring an action against Mm to recover it more than two years from the time of his giving bond.</p>

<p>Assault with Dangerous Weapon — Evidence.</p> <p>At the trial of an indictment for an assault with a billy, the defendant, who was permitted to testify that he had carried the hilly for twenty years, and that he did not carry it for the purpose of assailing the person assaulted, was asked, “ Why did you carry that billy ? ” Held, that the question was rightly excluded.</p>

Complaint for keeping and maintaining a common nuisance, to wit, a tenement in Boston used for the illegal sale and illegal keeping for sale of intoxicating liquors, from June 28, 1888, to December 28, 1888.

Indictment in two counts, charging in the first count a breaking and entering a building, and a larceny, and in the second count a receiving of stolen goods. In the Superior Court, before the jury was impanelled, the defendant filed a motion to quash the indictment for misjoinder of counts. Hammond, J., overruled the motion. At the trial, the defendant’s counsel asked the judge to rule that he could not be convicted on the indictment for larceny in a building.

<p>Complaint on the Pub. Sts. c. 98, § 2, alleging that the defendant, at Boston,' on July 22, 1888, that day being the Lord’s day, “ did keep open his shop there situate, and numbered one hundred and four in Eliot Street, for the purpose of doing business therein ; the same not being then and there works of necessity or charity.”</p> <p>At the trial in the Superior Court, before Dewey, J., the government called several witnesses, showing that the defendant was a tobacconist;. that his shop was at the corner of Eliot Street and Tremont Street, in Boston; and that he kept his shop open, and made a sale of cigars and tobacco, between the hours of eleven o’clock in the forenoon and four o’clock in the afternoon of Sunday, July 22, 1888, that day being the Lord’s day. The defendant contended that he had a right to keep his shop open on the Lord’s day for the purpose of selling tobacco and cigars, and called Dr. F. A. Harris, and, after qualifying him as an expert, asked him numerous questions as to whether or not tobacco and cigars, or either of them, were drugs or medicines ; and as to whether they had any medicinal effect upon the human system; or whether, if used for pleasurable purposes, that fact deprived them of medicinal effect; or whether the fact that a drug is thus used for a pleasurable purpose makes it less a drug. The judge excluded all of these questions; and the defendant excepted.</p> <p>The defendant offered in evidence the United States Dispensatory, for the purpose of showing the medicinal effects of tobacco as therein described; but the judge excluded the evidence, and the defendant excepted.</p> <p>The defendant then called one Benatuille, and, after qualifying him as an expert in the manufacture of cigars, proved by him that a cigar is made of leaf tobacco.</p> <p>The defendant then offered in evidence the record of the case of Commonwealth v. Burwell, tried in the Superior Court in Suffolk County in November, 1887, in which Burwell was charged with the sale of a cigar on Sunday, in October, 1887, and also -called him to show that he sold the cigar on that day, and was discharged by reason of the proof that cigars and tobacco were drugs or medicines. The judge excluded the evidence, and the defendant excepted.</p> <p>No claim was made by the defendant at the trial that he kept or had the right to keep his shop open on the-Lord’s day for any other purpose than that of selling tobacco and cigars.</p> <p>The defendant then asked for the following rulings :</p> <p>“ 1. If the wording of the statute, under which the defendant is sought to be convicted, is so doubtful that your minds are left in a state of uncertainty whether or not the commission of the acts charged against the defendant is or is not a crime, it will be your duty to acquit.</p> <p>“ 2. It is for you to decide both the law and the fact, and if your minds are left in doubt either in regard to the meaning of the statute, or whether or not the matters charged against the defendant have been committed by him or not, it will be your duty to acquit.</p> <p>“ 3. It is your duty to decide both the law and the facts, and if the offence with which the defendant is charged is not clearly embraced in the statute under which he is sought to be convicted, it will be your duty to acquit.</p> <p>“4. In deciding the law as to whether or not this statute intended to make the sale of tobacco and cigars on Sunday a criminal offence, you have no right to extend the meaning of the statute to a case which is not clearly within the meaning of the statute.</p> <p>“ 5. If, from the evidence, you are satisfied that cigars and tobacco are drugs and medicines, it will be your duty to acquit the defendant.</p> <p>“ 6. If, from the evidence, your minds are left in reasonable doubt whether or not cigars are drugs or medicines, it will be your duty to acquit.</p> <p>“7. If the government has not satisfied you beyond a reasonable doubt that cigars and tobacco are not drugs or medicines, it will be your duty to acquit.</p> <p>“ 8. The burden of proof is upon the government throughout the trial, and unless the government has satisfied you beyond a reasonable doubt that cigars and tobacco are not drugs or medi cines, it will be your duty to acquit.”</p> <p>The judge refused so to rule, and the defendant excepted.</p> <p>The judge instructed the jury in regard to their duties undei the Pub. Sts. c. 214, § 17, and said he would first give them some instruction as to the duties of jurors and of the court without reference to that section ; and read to them an extract from the opinion of Mr. Justice Story, in the ease of United States v. Battiste, 2 Sumner, 240, beginning with the words, (on page 243,) “ The learned counsel for the prisoner ” contends “ that, in criminal cases, and especially in capital cases, the jury are the judges of the law,” and ending with the words, (on page 244,) “ or choose from wantonness, or ignorance, or accidental mistake to interpret it.” The judge also referred to the case of Commonwealth v. Anthes, 5 Gray, 185, and told the jury, in substance, that both in that case and in later cases it had been decided in effect that § 17 did not change the law as it had previously existed upon this point; and that the jury had, under that section, or otherwise, no rightful power to determine questions of law involved in the issue, contrary to the instructions of the court.</p> <p>The judge then instructed the jury, that, if they werfe satisfied beyond a reasonable doubt that the defendant kept his shop open to sell cigars between the hours of eleven and four on the day named in the complaint, the same being the Lord’s day, it was their duty to find him guilty. To this ruling the defendant objected.</p> <p>The defendant then asked the judge to give the following ruling: “ The Legislature has authorized the jury to try according to established forms and principles of law all criminal cases, and it is for you to decide what the Legislature meant when they authorized you, after you are instructed, in your discretion, to decide both upon the law and the fact in the issue at bar.” This the judge declined to do, and the defendant duly excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Promissory Note — Guaranty of Interest— Discharge — Subrogation.</p> <p>A religious society, to secure a first and a second mortgage upon its land, both given for money lent, made two promissory notes, eaeh containing a promise to pay the principal sum in five years from date, “ with interest semiannually, at the rate of eight per centum per annum, payable on the first days of January and July of each year during said term, and for such further time as said principal sum, or any part thereof, shall remain unpaid.” A guaranty on each note, of even date therewith, signed by several persons, recited that the loans were made at their request, in consideration of which “we, the undersigned, hereby severally, and not jointly, (one sixth part each,) guarantee ... the punctual payment of the interest on the above note, and in default of such payment by the promisor, we hereby promise to pay the same on demand.” Held, that the payees could maintain separate actions against the guarantors to recover interest accruing after the maturity of the notes, and so long as the principal sums remained unpaid.</p> <p>After the maturity of the notes and a breach of condition of the first, mortgage, the first mortgagee covenanted with the second mortgagee, in consideration of a cash payment by him and of a guaranty for the payment of certain interest upon the first mortgage note until a certain date, not to foreclose the first mortgage before that date without the latter’s written consent; not to indorse any payment so made upon that note so as to operate as a payment of principal or interest thereon; to permit him, at his sole expense, but in the name and for the benefit of the first mortgagee to collect that note; and to sell the first mortgage and note to him upon certain terms, with a proviso that, if such note was not paid or bought by the second mortgagee by that date, the latter was to forfeit all sums already paid by him to the first mortgagee, who upon receiving from any source more than a certain sum was to pay over the excess to such second mortgagee. Held, that there was no discharge of the guarantors.</p>

<p>Legacy — Coupon Bond — Interest.</p> <p>A specific legacy of a coupon bond carries with it an overdue negotiable coupon attached to it at the testator’s death.</p> <p>Interest on a pecuniary legacy is to be allowed after one year from the testator’s death as incident to the legacy.</p>

<p>Personal Injuries—Defective Shade Tree in Way — Removal by Highway Surveyor.</p> <p>A highway surveyor has no power summarily to cut down and remove a shade tree standing in the highway, upon being notified that it is unsound and dangerous to travellers; but, under the Pub. Sts. c. 52, § 10, as amended by the St. of 1885, c. 123, § 2, must proceed to obtain authority to do so upon due proceedings had from the proper municipal authorities, meanwhile taking due precaution against the danger.</p>

<p>Trustee—Appointment — Exemption from giving Sureties — Notice — “ Interested ” Persons.</p> <p>The Pub. Sts. c. Ill, providing in § 16 that a trustee of an estate may be exempted from giving sureties on his bond at the request of “all the persons beneficially interested " therein, and in § 5, that a new trustee may be appointed to fill a vacancy “ after notice to all persons interested,” unless they assent thereto or waive notice under the Pub. Sts. e. 156, § 37, refer to such interested persons only as are in being and have a present vested interest in the estate, and not to such as are not in being nor to such as may become interested in the future.</p>

<p>Poor Debtor—Arrest on Execution—Affidavit — Citation — Recognizance.</p> <p>The affidavit required by the Pub. Sts. c. 162, § 17, when a creditor applies for the arrest of his debtor on execution, is the foundation of the proceedings; and if such an affidavit, which is to the first charge therein specified, is not made until after the magistrate, as required by § 18 in case of such charge, issues notice to the debtor, and until after the return hour of the citation, the citation is issued without authority, the subsequent arrest of the debtor is illegal, and a recognizance entered into by him is void, and no action can be maintained upon it.</p>

<p>Personal Services — Legacy—Evidence — Accord and Satisfaction.</p> <p>In an action for a legacy and for services rendered the testator by the legatee as housekeeper and nurse, evidence was admitted that before the testator’s death it was agreed between them that lie would leave her the legacy and that she would accept it in payment for her services; and she obtained a verdict for the legacy alone. Held, that the evidence was competent to disprove the contract declared on.</p>

Bill in equity to restrain the defendants from filling the mill-pond of the plaintiff, and to compel them to remove material already deposited in the pond. Hearing upon the pleadings and a master’s report, before Holmes, J.,, who, at the request of the parties, reserved the case for the consideration of the full court, in substance as follows. The master found the following facts.

<p>Nuisance — Surface Drainage — Cultivation of Land.</p> <p>The owner of land upon the slope of a hill running down to a mill-pond may cultivate and fertilize it in the ordinary way for garden purposes without becoming liable to the owner of the pond, which is encroached upon so as to diminish the water power by the large amount of solid matter thereby constantly carried into the pond by surface drainage.</p>

<p>Petition for partition of four pai’cels of land on Howard Street and Hampshire Street, formerly North Oak Street, in Lawrence. The case was submitted to the Superior Court, and, after judgment for the respondents, to this court, on appeal, on an agreed statement of facts, in substance as follows.</p> <p>The petitioners were the children and heirs at law of Charles W. Boardman, a son of Benjamin G. Boardman, senior; and the respondents were the legal representatives of Benjamin G. Boardman, junior, of Edwin A. Boardman and of Moses B. Boardman, the remaining sons of Benjamin G. Boardman, senior, of whom only the children and heirs at law of Benjamin G. Boardman, junior, resisted partition.</p> <p>Benjamin G. Boardman, senior, died on March 10, 1858, leaving a widow, Sarah W. Boardman, who was his second wife, and the four sons above mentioned, who were his children by liis first wife. His will, which was duly admitted to probate, contained the following provisions: -</p> <p>“ Firstly, I give to my wife, Sarah, my dwelling-house as now stands, together with all the land, furniture, silver plate, spoons, notes, mortgages with the notes to the same, my books, papers, etc., chattels, at the time of my decease.” Here followed a small appropriation to keep the testator’s burial lot in order, and various legacies to his four sons. “ My will and desire is, if my wife, Sarah, should be married again, and not remain my widow, that my real and personal estate shall revert to my heirs at law. My will is, that my wife, the executrix, shall from time to time present as gifts from me, and through her, to my grandchildren, as her judgment may dictate; also to my sons, as her pleasure may dictate. I submit all to her own judgment, and confide in her to make any small presents. My estate can be closed without much expense, as no appraisement will be made. And lastly, as to all the rest, residue and remainder of my personal and real estate, goods and chattels, of what kind and nature soever, I give and bequeath the same to my said wife, Sarah, during her life only, whom I hereby appoint sole executrix of this my last will and testament. The words ‘estate’ and ‘real’ interlined by me before signed. My desire to your Hon. that you request no bondsman from my wife, as no mistake in the trust and discharge of her duty. Benjamin Greenleaf Boardman.</p> <p>“ In witness whereof, I have hereunto set my hand and seal, and publish and declare this to be my last will and testament, in the presence of the witnesses named below, this nineteenth day of July, in the year of our Lord one thousand eight hundred and fifty-two. Benjamin Greenleaf Boardman.'</p> <p>“ Before signed, during her life only, — my will and desire.” Here followed the usual attestation clause, duly signed by three witnesses, and a codicil of later date diminishing the legacy to his son Charles W. Boardman.</p> <p>Benjamin G. Boardman, senior, at the time of his death, owned a dwelling-house on Ashland Street, in Boston, and land on other streets in that city, as well as in Lawrence. Three of the parcels of land in question, being those situated on Howard Street in Lawrence, were owned by him at that time; but his ownership of the fourth parcel, which was situated on Hampshire Street, formerly North Oak Street, was controverted by the respondents. Sarah W. Boardman, who died on March 2, 1884, conveyed to Benjamin G. Boardman, junior, the dwelling-house in Boston, and “ also all interest, if any, in real estate in State of Massachusetts, city of Boston or county of Suffolk,” but made no other conveyance of the lands in question.</p> <p>In 1857 the parcels of land on Howard Street, consisting of three distinct and separate lots, were collectively designated on the books of the assessors of taxes of the city of Lawrence as “ Lot No. 10 Howard Street,” solely with reference to certain plans of the assessors, and as being all of them situated on that street; and the fourth parcel, composed of two adjoining lots on North Oak Street, afterwards called Hampshire Street, were designated as “ Lots No. 112 and 118 North Oak Street.” On May 1,1857, taxes were assessed to Benjamin G. Boardman, senior, upon these four parcels of laud among others, those upon the three lots on Howard Street being separately assessed to him, and those upon the two lots on North Oak Street being assessed together. The taxes were duly committed to the collector of taxes of Lawrence for collection, and remained unpaid. Subsequently, the collector duly published a notice, dated May 28, 1859, and signed by him as collector, which notice was as follows:</p> <p>“ The owners and occupants of the following described parcels of real estate, situated in the city of Lawrence, in the county of .Essex and Commonwealth of Massachusetts, are hereby notified that the taxes thereon severally assessed for the different years specified, according to the list committed to me as collector of taxes for said city by the assessors of taxes, remain unpaid, and that said parcels of real estate will be offered for sale at public auction on Saturday, the sixteenth day of July next, at ten o’clock in the forenoon, at the City Hall in said Lawrence, for the payment of said taxes, together with all the costs and charges thereon, unless the same shall be previously discharged.”</p> <p>Appended to this notice, under the heading “ Non-residents,” was the following: “Boardman, Benj. G., Boston, Lot No. 10 Howard Street, tax for 1857, f 6.15; Lots No. 112 and 113 North Oak Street, tax for 1857, $0.48 ” ; and an affidavit of one Dike, that between May 28,1859, and July 16,1859, he posted a copy of the notice upon each of the lots, as well as in the City Hall, at least three weeks before the day of sale.</p> <p>The sale by the collector occurred at the time and place stated in the above notice, and was by public auction, and the lots in question were struck off to Benjamin G. Boardman, junior, as the highest bidder therefor, and subsequently the collector gave to him a deed, dated July 19, 1859, duly signed, sealed, and acknowledged by the collector, and duly recorded, which deed, so far as material, was as follows;</p> <p>“ Whereas the assessors of the city of Lawrence have assessed the sum of six dollars and fifteen cents on Lot No. 10 Howard Street, the sum of forty-eight cents on Lots No. 112 and No. 113 North Oak Street, . . . against Benjamin G. Boardman of Boston, as being the owner in possession on the first day of May, A. D. 1857-, of said lots of land, situated in said Lawrence, for a tax in said city of Lawrence, in the lists of assessments they have committed to me to collect, and no person having appeared to discharge the same, although I have fully complied with all the provisions of the law respecting the sale of real estate for taxes assessed thereon and unpaid, therefore know ye, that I, the said Nathaniel Wilson, collector of taxes as aforesaid, in consideration of nineteen dollars and thirteen cents to me paid for the discharging of said taxes and intervening charges by Benjamin G. Boardman of Boston, in the county of Suffolk, in said Commonwealth, (late of the firm of Dennie and Boardman,) the receipt whereof I do hereby acknowledge, do hereby give, grant, bargain, sell, and convey unto him, the said Benjamin G. Boardman, his heirs and assigns forever, the following described real estate, being the land taxed as aforesaid, to wit, all those certain lots of land in said Lawrence, as above named, to wit, Lot No. 10 Howard Street, Lots No. 112 and 113 Oak Street, . . . said lots being so known and designated on the city assessors’ plan of lands in said Lawrence ; no person appearing to take a less quantity of said lots for said taxes and charges. An advertisement for the sale of which for the non-payment of said tax-and incidental charges I caused to be published three weeks successively iii” certain newspapers, “all published in said Lawrence, the last publication being more than one week before the day of sale; also, a notice of the time, place, and cause of said sale of said real estate was posted at the City Hall and other public places in said city, and also upon the real estate, three weeks before said day of sale, the same having been struck off to the said Benjamin G. Boardman, he being the highest bidder therefor, at a public auction, legally notified and held at the City Hall in said Lawrence, July 16, A. D. 1859. To have and to hold the same to the said Benjamin G. Boardman, his heirs and assigns forever, to his and their use forever, subject however to the right of redemption of the owner or proprietor thereof, according to law. And I do covenant with the said Benjamin G. Boardman, his heirs and assigns, that I gave notice of the intended sale of said land according to law, and that I have observed the directions of the law in all respects in the premises, in reference to advertising, posting, selling, and conveying the premises aforesaid. In witness whereof, I have hereunto set my hand and seal, this nineteenth day of July, A. D. 1859.”</p> <p>There was no other evidence as to the manner and form of the tax sale except as above stated and contained in the tax deed and notice of sale.</p> <p>Prior to 1848 the fourth parcel of land, referred to as “ Lots 112 and 113 on North Oak Street,” was mortgaged by one Foley, who then owned it, to Joseph Gass, and on February 26, 1848, Gass delivered to Benjamin G. Boardman, senior, an instrument signed by him, and duly sealed, attested, acknowledged, and recorded in the registry of deeds, which instrument is as follows:</p> <p>“ Know all men by these presents, that I, Joseph Gass, within named, for and in consideration of the sum of ninety-six dollars paid me by Benjamin G. Boardman of said Boston, hereby transfer and assign to the said Boardman all the right, title, and interest which I have to the land described in the within deed of mortgage, and also all my right and title to the debt described therein. In witness whereof, I have hereunto set my hand and seal, this twenty-sixth day of February, A. D. 1848.”</p> <p>The records of the registry of deeds for the Southern District of the County of Essex also contained, as duly recorded, the following, signed and sworn to by two witnesses :</p> <p>“ This is to certify that Chas. S. Newell, attorney for Benjamin G. Boardman, the assignee within named, has this day called upon us to witness his entry upon the premises described in the within mortgage, and he made entry thereon in our presence, and declared that he did it in the name and as the attorney of the within named Benjamin G. Boardman, for the purpose of foreclosing the within mortgage according to the statute, and for breach of condition thereof, this eighteenth day of October, in the year one thousand eight hundred and forty-nine.”</p> <p>The respondents contended that the assignment from Gass to Boardman conveyed only a life estate; that the certificate of entry did not state the facts required by the statute; and was insufficient to foreclose the mortgage, and that Newell was not authorized to make said entry; that the will of Benjamin G. Boardman, senior, devised to Sarah W. Boardman an estate in fee, and that the said petitioners did not inherit any portion of the real estate; that the tax deed was valid, and vested in Benjamin G. Boardman, junior, an estate in fee; and that the petitioners’ remedy, if any, was in equity as cotenants.</p> <p>The petitioners contended th.at Benjamin G. Boardman, senior, owned the premises at the time of his death: that the respondents were estopped from denying that he owned them at the time they were sold for taxes assessed to him as the owner in possession; that the assignment was sufficient to vest the mortgage deed and note in him; that the certificate conformed to the requirements of the statutes, and the mortgage was foreclosed thereby; that the lapse of time since the • entry to foreclose, the acquiescence of all parties, the presumption of regularity in favor of ancient proceedings, the fact that the certificate was indorsed on the back of the deed and its subsequent record, justified and required a finding and ruling that Newell was the lawful attorney of Benjamin G. Boardman, senior, to make said entry; that the children of Benjamin G. Boardman, senior, were tenants in, common and joint devisees of the premises under his will, subject to a life estate in the widow, whereby their relations were of a fiduciary character, not allowing one. of them stealthily to deprive the others of their title by secretly acquiring an adverse title; that, if the tax sale and deed were valid, the respondents can avail themselves of the same only to require contribution, and that partition can be decreed in this case upon condition that such contribution shall be made; that the assessment, notice, sale, and deed were illegal and void; and that the petitioners were entitled to partition.</p> <p>If upon the foregoing facts partition could be had, interlocutory judgment for partition was to be entered therefor; otherwise, judgment was to be entered for the contesting respondents.</p>

<p>Contract upon two policies of insurance, one upon a dwelling-house and the other upon a barn, in the form prescribed by the Pub. Sts. c. 119, § 139, (St. 1887, c. 214, § 60,) against loss by fire, each for three years, from January 24, 1881, and April 2,1881, respectively. Each policy contained the following provisions:</p> <p>“ This policy shall he void if any material fact or circumstance stated in writing has not been fairly represented by the insured, — or if the insured now has or shall hereafter make any other insurance on the said property without the assent in writing or in print of the company, — or if, without such assent, the said property shall be removed, except that, if such removal shall be necessary for the preservation of the property from fire, this policy shall be valid without such assent for five days thereafter, — or if, without such assent, the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency, or consent of the insured, be so altered as to cause an increase of such risks, — or if, without such assent, the.said property shall be sold, or this policy assigned, — or if the premises hereby insured shall become vacant by the removal of the owner or occupant, and so remain vacant for more than thirty days without such assent, — or if it be a manufacturing establishment running in whole or part extra time, except that such establishments may run in whole or in part extra hours not later than nine o’clock p. M., or if such establishments shall cease operation for more than thirty days without permission in writing indorsed hereon, — or if the insured shall make any attempt to defraud the company, either before or after the loss, — or if gunpowder or other articles subject to legal restriction shall be kept in quantities or manner different from those allowed or prescribed by law,—or if camphene, benzine, naphtha, or other chemical oils or burning fluids shall be kept or used by the insured on the premises insured, except that what is known as refined petroleum, kerosene, or coal oil may be used for lighting.”</p> <p>The answer, among other things, set up that the policies were rendered void by an increase of risk caused by the plaintiff without the assent of the defendant.</p> <p>Trial in the Superior Court, after the former decision, reported 144 Mass. 48, before Blodgett, J., who allowed a bill of exceptions, which, so far as material, was as follows.</p> <p>At the commencement of the trial, the defendant waived every defence set up in its answer, except that the policy was rendered void by an increase of risk, before the dwelling-house and the barn were damaged by fire, which occurred on November 16,1883. The dwelling-house, which was in process of erection when the policy upon it was issued, contained sixteen rooms, one of which was finished and furnished by the plaintiff as a bar-room, and was occupied by him as a hotel; and the barn was situated near it. There was evidence tending to show that from April, 1882, to July, 1883, the hotel was used by the plaintiff for the illegal sale and keeping for sale of intoxicating liquors, such liquors being seized on the premises on April 7, 1882, and duly forfeited, and the plaintiff being convicted for the illegal sale of such liquors in April, 1883, and again in June of the same year.</p> <p>The defendant offered evidence tending to show that there was a custom among fire insurance companies doing business in Massachusetts, for many years past, to charge a higher rate of premium for insurance on a building occupied by a person engaged in the business of a common victualler than on a dwelling-house ; that a building occupied for the purpose of carrying on the business of a common victualler, and one occupied as an ordinary dwelling-house, belonged to different classes, it being the general custom of insurance companies doing business in this Commonwealth to charge two or three times as much premium on the former as on the latter, and that a much higher premium would be charged for insuring a building in which intoxicating liquors were illegally sold than on one of the same class in which they were not sold.</p> <p>Upon the question whether the policy became void by reason of the use of the dwelling-house in 1882 by the plaintiff for the illegal sale of intoxicating liquors, the judge instructed the jury as follows:</p> <p>“If it be assumed (and it may be for the purposes of this trial) that such illegal use would vitiate the policy and deprive the plaintiff of the right to maintain an action for a loss by fire while the building was being so used, still, if upon all the evidence in the case you find that that use was temporary, not contemplated at the time when the policy was taken by the plaintiff, and that such illegal use ceased from and after the time when the plaintiff had a license authorizing him to sell intoxicating liquors, the fact that he made an illegal use of the premises in 1882 will not deprive the plaintiff of the right to maintain the action. His right under the policy, if it was suspended while the illegal use of the building was being made, would revive when he ceased to use the building illegally.”</p> <p>The defendant asked the judge to give the jury the following instructions:</p> <p>“1. If you find that during the time for which these policies were issued the circumstances affecting the risk were so changed by the plaintiff Kyte, in the use he made of this building, or in the use that others made of it with his knowledge and consent, that a higher rate of premium would be demanded in its altered state than in its original state, then this policy is void as to the plaintiff Kyte, and he cannot recover for his interest therein, although the fire did not occur from the alteration.</p> <p>“ 2. Nor is the plaintiff Kyte entitled to recover for his interest if he thought this alteration in circumstances did not increase the risk, if in fact it did increase the risk.</p> <p>“ 8. If you find that during the time for which these policies were issued the plaintiff Kyte, by obtaining a common victualler’s license and making use of this building under said license, and legally or illegally selling intoxicating liquors therein,- did increase the risk so that a higher premium must be paid for the insurance of this building thus used than for the insurance of a dwelling-house, then this policy becomes void as to the plaintiff Kyte, and lie cannot recover for his interest therein.</p> <p>“ 4. If you find that by the illegal sale of intoxicating liquors in this building by the plaintiff Kyte, or by others with his consent and knowledge, for a certain portion of the time for which these policies were issued, the risk was for that period increased, this policy is void as to the plaintiff Kyte’s interest, and he cannot recover, although this increase was not permanent and did not cause the fire.</p> <p>“ 5. If you find that while these policies were in force intoxicating liquors were illegally kept and sold in this building by the plaintiff Kyte, or with his consent or knowledge, and that thereby the risk was increased so as to require- a higher premium for its insurance in the changed circumstances, this policy became void as to his interest, and he cannot recover.</p> <p>“ 6. If you find that while these policies were in force the plaintiff did obtain a common victualler’s license, and make use of this building for this purpose, and if you find that a dwelling-house and a building occupied and used by a common victualler do not belong to the same class of insurance risks, and the latter requires the higher premium for insurance, then the plaintiff is not entitled to recover for his interest in this property, although the fire did not occur from the alteration.”</p> <p>The judge gave the second instruction requested, and also the third, with the exception of the words “so that a higher premium must be paid for the insurance of this building thus used than for the insurance of a dwelling-house,” and the fifth, with the exception of the word “ illegally ” and the words “ so as to require a higher premium for its insurance in the changed circumstances.” The judge declined to give the first, fourth, and sixth instructions requested,.saying with regard to the fourth instruction, “ The fourth I shall decline to give; I have given what would be entirely inconsistent with it.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Gaming — Bet upon Foot-race — Recovery by Loser — Demand.</p> <p>A bet upon a foot-race between two is gaming, within the meaning of the Pub. Sts. c. 99, § 1, providing an action for the recovery back of money lost at gaming; a person bringing such an action to recover such a bet must show that he bet his money on the race, that he lost the bet, and that the defendant, acting by himself or an agent, was the winner.</p> <p>If neither of the contestants wins the race, which is declared off, and the money remains in the hands of a stakeholder, no action can be maintained for its recovery from him without a previous demand.</p>

<p>Tort for personal injuries occasioned to the plaintiff by being struck by a locomotive engine belonging to the defendant, at a highway crossing in Ayer. The first count of the declaration was as follows:</p> <p>“ And the plaintiff says that the defendant is a corporation, owning and running a railroad between the city of Boston and the city of Fitchburg; that while driving his team on the highway at a crossing known as Flanagan’s on said railroad in the town of Ayer, in the exercise of due and ordinary care, the defendant, by its agents and servants, and by reason of the insufficient guard and protection at said crossing, negligently ran and drove an engine attached to a long train of ears against the plaintiff, and threw him violently to the ground, and seriously injured him in his person.”</p> <p>Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, which so far as material was as follows.</p> <p>Evidence was introduced tending to show the following facts. The defendant’s railroad at this crossing ran east and west, and consisted of two main tracks, and two side-tracks, one of which was to the north and the other to the south of the main tracks, all four tracks being from six and a half to seven feet, or the usual distance, apart. Trains on the defendant’s railroad coming from Boston and bound west took the north main track, and those east bound the south main track. The highway in question ran north and south, and crossed the railroad at grade at a point about half a mile to the east of a station of the defendant in Ayer. The southerly side-track of the railroad was connected with the south main track by a switch about twenty feet east of the crossing. The defendant maintained neither gates nor a flagman at this crossing. A barn was situated on the east side of the highway and south of the crossing, about thirty feet from the southerly side-track of the railroad. This barn, together with certain woods, cut off the view of persons travelling on the highway, and approaching the crossing from the south, along the railroad to the east, but such'persons upon passing the barn would have an unobstructed view in that direction as far as a curve in the railroad, about twenty-three hundred feet distant. The driver of a four-horse team in passing this barn would, however, be unable to see along the tracks to the east, until his horses were nearly upon the crossing. On March 26, 1887, at about nine o’clock in the forenoon, the plaintiff, who was engaged in.drawing sand with a four-horse team from a sand-pit on the north side of the railroad over the crossing, approached it from the south, and in driving his team over the crossing was struck by the engine of a west-bound passenger train, receiving the injuries.</p> <p>The plaintiff testified, on direct examination, that as he approached the crossing an east-bound freight train was upon the southerly side-track upon the. crossing, and was backing up towards the station to get certain freight cars standing there ; that as he came towards the crossing he held his horses down a little and brought his team to a standstill; that he could not see along the tracks to the east because of the barn; that presently the freight train, the cars having been attached to it, passed by the crossing towards the east; that as soon as it had passed by he started the horses over the crossing, and as soon as the rear cars of the freight train had passed along far enough so that he could look past that train towards the east, he saw the engine of the passenger train coming right upon him; that before he started across the tracks he had seen a west-bound freight train standing on the north main track at the Ayer station ; and that, although he listened, he heard no warning signal of any kind.</p> <p>On cross-examination, the plaintiff testified that, upon seeing the east-bound freight train on the crossing and backing up to attach the freight cars on the side-track, he stopped his horses, so that, as he sat upon the wagon, he was nearly opposite the barn ; that his horses were not frightened at all, and he had driven up quite near to the crossing; that when he started his horses again the freight train, with the cars attached to it, “ was going over and got over the crossing,” and the rear car of the train had got “ more than a car’s length or two cars’ length ” beyond the crossing; that when he started up his horses the freight train was in such a position that he could not see along the north main track to the east; that he was very familiar with the crossing and the railroad at the point in question; that he did not know what train it was that struck him except as he had “ been told since”; that he knew that for several years a morning train from Boston arrived regularly at Ayer about nine o’clock A. M.; that although he saw a west-bound train standing at the station on the north main track, he did not rely on that fact in crossing, because he “ was n’t aware what time it was”; and that the day was a fair day with perhaps snow on the ground, but he had no recollection as to its being windy. The plaintiff also, on cross-examination, in reply to the question, “ Why did n’t you wait, before you started up, until this freight train was out of the way, so you could see whether anything was coming on the west-bound main track ? ” said, “Well, I took all the precaution that I could to look down there, and saw nothing, — I could n’t say why I did n’t wait till they went farther off ”; to the question, “ Why did n’t you wait till that train had gone out of the way, so as to give you a view of the west-bound track? ” he replied, “ I could n’t tell ”; to the further question, “ Then, for all you know, if you had waited a moment, till this freight train had gone down far enough, you would have had an unobstructed view of the main track?” he replied, “ Certainly, if the freight train, — if I had stopped till it got farther out of the way, I could have seen ”; and to the further question, “ Can you tell the jury why you did n’t wait to see if there was a train coming on this west-bound track or not, if you can ? ” he replied, “ I am sure I never thought of that. I thought there was a chance to pass, and I went through there.”</p> <p>On re-direct examination, the plaintiff replied in the negative to the question, “ You have been asked why you didn’t stop till that freight train got out of the way; had you any reason tó believe that a train was coming in the direction of Boston across that crossing ? ”</p> <p>The defendant called as a witness the engineer of the passenger train which struck the plaintiff, who testified that he blew the whistle as he approached the crossing; that there was no freight train on the south main track or side-track bound east; that at the time there was a signal at the Ayer station for him to keep back his train, and he had shut off steam and was going at a rate of from eighteen to twenty miles an hour; and that he was looking along the track in front of him, but had no time after he saw the plaintiff’s horses on the crossing to give a danger signal. The defendant also introduced evidence tending to show that the bell on the passenger engine was rung as it approached the crossing.</p> <p>The judge refused to rule, as requested by the defendant, that “ under the first count of this declaration the plaintiff cannot recover on the ground of any neglect on the part of the defendant, excepting the neglect to furnish a flagman or gate.” The judge also refused to rule, as requested by the defendant, ‘ that upon the whole evidence the jury was not authorized to find a verdict for the plaintiff, and that there was no evidence that the plaintiff was in the exercise of due and ordinary care.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in January, 1889, and after-wards was submitted on the briefs to all the judges, except C. Allen, J.</p>

<p>Exceptions — Incorporated Proprietors of Meeting-house — Meetings — Notice in Warrant — Settlement of Minister.</p> <p>A finding at a trial in accordance with an excepting party’s contention will be taken to be correct as against him on his exceptions.</p> <p>Proprietors of a meeting-house incorporated under the St. of 1840, c. 62, who own a meeting-house erected prior to the passage of the St. of 1845, c. 213, (Pub. Sts. c. 38, § 38,) have no power, unless in pursuance of the provisions of the Pub. Sts. c. 38, §§ 39-41, to settle a minister.</p> <p>If such a corporation, by virtue of owning real or personal estate in addition to its meeting-house, may, under the Pub. Sts. c. 38, § 38, make a contract of settlement with a minister, action had at a meeting with reference thereto is inoperative, unless there is an article in the warrant relating to the subject; and an article “ to transact any other business that may legally come before said meeting ” is not sufficient.</p> <p>In an action by a minister against such a corporation to recover for his services, it was held that the judge, who tried the case without a jury, was warranted in finding that the defendant did not employ the plaintiff, or make any contract with him, express or implied, for his services.</p>

<p>Tort by tbe plaintiffs, as surviving partners of the firm of Francis Brigham and Company, for the conversion of certain bonds as partnership property. The answer, among other things, set up a decree for the plaintiffs on a bill in equity brought by them against the defendant, as executor of the will of Francis Brigham, to recover the value of the same bonds.</p> <p>At the trial in the Superior Court, before Sherman, J., on the issue whether the equity suit was a full bar and defence to the action, the following facts were agreed or admitted.</p> <p>The firm of Francis Brigham and Company consisted of Francis Brigham and the plaintiffs, and was dissolved in 1865. Francis Brigham died on December 7, 1880, at which time the partnership accounts had not been fully settled. The defendant was duly appointed executor of his will, and the bonds in question came into his hands with the other assets of the estate of Francis Brigham. The bonds were issued by the Mexican government, and were never listed at the brokers’ board in New York or Boston, and in an inventory of the estate, duly taken and returned into the Probate Court by the defendant, were stated to be of “ doubtful value.” The bonds were sold by the defendant, on August 29, 1882, through a firm of brokers in Boston, at private sale, and without notice to the plaintiffs, for $2,475, or fifty per cent of their face and market value. No notice was given to the defendant by the plaintiffs that they claimed any ownership or interest in the bonds until October, 1883, when they made a demand on the defendant to deliver the bonds to them.</p> <p>In October, 1883, the plaintiffs duly brought a bill in equity against the defendant, as such executor, to settle the partnership accounts, and to recover their share of the proceeds of the bonds and other partnership property. The bill contained the following allegations:</p> <p>“ First. That the plaintiffs and the said Francis Brigham, on or about the first day of October, A. D. 1850, entered into partnership under written articles of agreement. ... In and by said articles it was agreed, among other things, that said partners should equally share the profits and equally bear the losses of their said partnership business.</p> <p>“ Second. Said partners carried on said business under said articles . . . until November 1, 1865, at which date said partnership was dissolved by mutual consent.</p> <p>“ Third. That there never has been any full settlement of said partnership business.</p> <p>“ Fourth. That soon after said dissolution, to wit, on or be-_ fore the first day of January, 1866, all debts against said partnership were adjusted and paid, and all capital withdrawn, but there remained several unsettled claims due to said partnership, which it was agreed might be collected by either partner and the proceeds divided from time to time equally between said partners.</p> <p>“ Fifth. That on or about the first day of January, 1872, said Bradley received in part payment of one of said claims contracted prior to November 1, 1860, and due to said partnership, certain Mexican government bonds of the par value of $4,950, but which at that date were of little value in the market, and by the mutual, consent of all of said partners said bonds were placed, with other papers belonging to said partnership, in the safe and in the possession of said Francis Brigham for safe keeping till such time as said partners might agree to make a division of the same, and said bonds remained in the possession of said Francis Brigham till his death.</p> <p>“ Sixth. That on the seventh day of December, 1880, said Francis Brigham died, leaving a will, which was duly admitted to probate, and letters testamentary were issued to said Rufus H. Brigham, as executor of said will, and that as such executor said Rufus H. Brigham received and came into possession of the aforesaid articles, and also of said bonds, and that he has disposed of said bonds and received the proceeds thereof to the amount of six thousand dollars, and the plaintiffs are entitled to receive their share of said proceeds as stated herein, vi;s. one third to each, and interest thereon. And the plaintiffs have duly demanded of said executor that he pay to them their share of said proceeds aforesaid, but he refused and still refuses so to do.</p> <p>“ Seventh. That the plaintiffs have not come into possession of any partnership property except as aforesaid, but that the defendant and his said testator have received other property which said defendant ought to account for as a part of the assets of said partnership.”</p> <p>The prayer of the bill was as follows:</p> <p>“ First. That a receiver may be appointed to take possession of said partnership assets, and that an account may be taken of all and singular said partnership matters, and that the defendant be directed to pay to the plaintiffs whatever sums shall be found due to them in respect to said partnership matters, with interest thereon.</p> <p>“ Second. For such other and further relief as to your honors may seem meet.”</p> <p>The bill in equity was duly prosecuted, and a decree thereon was ,duly entered for the plaintiffs against the defendant, as such executor, for their share of the amount which he paid into the estate of Francis Brigham from the proceeds of the sale of the bonds, namely, $1,995.26 including interest, as debt, and against the defendant personally in the sum of $75.46, as costs. Executions issued thereon, and the 'same were paid and the iudgments satisfied.</p> <p>It was claimed on behalf of the defendant, that he acted in good faith, and believed when he sold the bonds that they belonged to the estate of his testator.</p> <p>The jury, in reply to questions put to them as to the value of the bonds when demanded and when sold, stated that they were then worth $4,950. The judge directed them to return a verdict for the plaintiffs in the sum of $1,650, being their share of the value of the bonds above the amount already paid them by the defendant, and reported the case for the determination of this court.</p> <p>If the action could be maintained, judgment was to be rendered on the verdict; otherwise, judgment was to be entered for the defendant.</p>

Tout for personal injuries occasioned to the plaintiff by- reason of the alleged want of a railing at the side of a highway in the defendant city.

Bill in equity to redeem land in Natick from a mortgage, alleging that the land in question was purchased hy the plaintiff’s husband, Martin Cunniff, largely with her money, and was conveyed to the plaintiff by him on April 15, 1887, through a third person, subject to the mortgage; that on July 15,1886, Martin gave his promissory note to the defendant, who duly recovered judgment on the note, and an execution issued thereon; that the equity of redemption in the land was sold…

<p>Bill IN equity, by a minority of the trustees of the Framingham Town Library, originally brought against the majority of such trustees to restrain them from using a portion of the net income of a trust fund in printing a catalogue of the library. The bill was amended by making the Attorney General and the inhabitants of the town of Framingham parties defendant. Hearing upon the pleadings, before W. Allen, J., who reserved the case for the consideration of the full court, in substance as follows.</p> <p>A free public library, duly established by a vote of the inhabitants of the town in 1855, is situated in the centre village of Framingham, and is under the care and supervision of a board of twelve trustees, duly chosen in accordance with the by-laws of the town, of which the plaintiffs and the original defendants are the members. Moses Edgell, by his will, which was duly admitted to probate in March, 1875, provided as follows:</p> <p>“ Item Tenth. All the rest, residue, and remainder of my property of every kind, real, personal, and mixed, remaining at the decease of my said wife and not disposed of by this will, I hereby give, bequeath, and devise unto the inhabitants of the town of Framingham and their successors forever, they to have and to hold the same in trust for the purpose hereafter named, but upon the conditions and subject to the restrictions herein named, as a fund to be known as and called the Edgell Library Fund. Said fund shall remain in the hands of the treasurer of said town, or such other person or persons as said inhabitants may elect for that purpose, he or they giving bonds as directed in item seventh; and said fund shall be invested in the same manner as directed in item seventh respecting said cemetery fund, and the income thereof shall be expended as follows, to wit: first, not less than one third of the net income of said fund shall be expended annually by the trustees of the free public library now located in the centre village of said Framingham in purchasing books for the same; the remaining two thirds of the net income of said fund shall be expended by said trustees in purchasing books for the use of said library, or works of art suitable to adorn the hall or library-room in said centre village, wherein said library may hereafter be kept and maintained, or in defraying the expense of taking care of the same. The foregoing bequest is made upon and subject to the following express conditions, to wit: first, no part of the income of said fund shall ever be expended for the support of any library or library building, or for the purchase of books or works of art for the use of any library except such as shall be located in said centre village; second, no part of the principal of said fund shall ever be expended, and in case any part of said principal should be lost, then no part of the income thereof shall thereafter be expended until said fund by accumulation or otherwise shall have been restored to its original amount; and the treasurer of said town, or such person or persons as may have the charge of said cemetery and library funds, shall annually, at some legal meeting of the inhabitants of said town, submit for their consideration a written report of the condition of said funds, the amount of the same, how invested, the amount of income derived therefrom, and to whom the same may have been paid, and they shall also pay over semiannually to the trustees of said cemetery the net income of said cemetery fund, and to the trustees of said library the net income of said library fund, excepting as herein mentioned in case of loss, and the trustees of said cemetery and said library shall in like manner report the amounts received by them respectively from the income of said funds, and the purposes for which the same may have been expended.”</p> <p>On January 17,1876, the inhabitants of the town duly accepted the gift, and after the decease of the wife of the donor the executor of the will paid over to the town $47,000, the amount thereof, the net income of which the trustees received regularly for the purposes of the trust. The printing and publication of a catalogue of all the books in the library became necessary, and the trustees of the library, at a regular meeting duly held on June 14, 1886, voted to print and publish such a catalogue, and to pay the expense thereof out of the net income of the Edgell Fund, ten trustees, being the original defendants, voting in the affirmative, and two trustees, being the plaintiffs, voting in the negative, and filing a protest in writing thereto.</p> <p>The majority of the trustees contended that they were warranted, under the terms of the bequest and by the authority 'vested in them by the town by-laws, in printing and publishing a catalogue of the library, and paying therefor out of the income of the trust fund. The minority contended that such an expenditure of the income was not within the testator’s intention, but was contrary to the terms of the bequest and to the conditions and restrictions contained in it, and would imperil the possession •of the fund by the town.</p> <p>The case was submitted on briefs to all the judges.</p>

<p>Bill in equity, filed on January 9, 1888, against Alonzo W. Boardman, the assignee in insolvency of the Goulding Mills, to enforce the payment of a claim of the plaintiff against that corporation, under an agreement made by Mr. Boardman with the plaintiff. The bill was amended by making George F. Kendall, the successor of Mr. Boardman as such assignee, a party defendant. Hearing before Field, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>The following facts were agreed. On December 17,1886, and on January 11, 1887, the plaintiff brought successive actions against the Goulding Mills, a corporation duly established and having its usual place of business in Malden, and attached its real estate, other creditors of it meanwhile, on January 5, making like attachments of the same real estate. On April 15, 1887, the plaintiff having recovered judgment against the corporation in its second action of January 11, 1887, and an execution duly issuing thereon, levied on its real estate on March 24, 1887, which levy was suspended. The corporation filed a petition in insolvency on May 14, 1887, the first publication of notice of the issue of a warrant thereon being made on May 16, 1887, and on June 4, 1887, Mr. Boardman was duly appointed assignee, and accepted the trust. On June 4, 1887, the plaintiff obtained insurance against fire on its interest in the real estate attached by it to the amount of $8,000, paying premiums to the amount of $167.48 therefor, in four policies, each of which contained the following: “ In case of any loss or damage, the company, within sixty days after the insured shall have submitted a statement, as provided in the preceding clause, shall either pay the amount for which it shall be liable, ... or replace the property with other of the same kind and goodness, — or it may, within fifteen days after such statement is submitted, notify the insured of its intention to rebuild or repair the premises, or any portion thereof separately insured by this policy, and shall thereupon enter upon said premises and proceed to rebuild or repair the same with reasonable expedition. And whenever the company shall pay any loss, the insured shall assign to it, to the extent of the amount so paid, all rights to recover satisfaction for the loss or damage from any person, town, or other corporation, excepting other insurers; or the insured, if requested, shall prosecute therefor at the charge and for the account of the company.” The policies contained no other provision relating to the substitution or subrogation of the insurer to the rights of the insured.</p> <p>On July 6,1887, the real estate and certain personal property, machinery, fixtures, etc. of the insolvent corporation were damaged by fire; and subsequently the plaintiff collected and received under its policies on account of such damage the sum of $3,111.88 over and above the premiums paid by it on such policies.</p> <p>The plaintiff, by its president, John E. Graham, and Mr. Boardman and one of the other attaching creditors of the insolvent corporation, on August 9, 1887, executed an agreement, which was the agreement in question, as follows:</p> <p>“ Whereas A. W. Boardman has been duly appointed assignee of the Goulding Mills of Malden, we hereby assent to his sale of said mills, including the land on which they stand, the buildings, and all the machinery, engines, boilers, etc., and all fixtures, heating and lighting apparatus, etc., to be sold at public auction; said Boardman hereby agreeing to pay us the several claims now in suit by us against said mills from the proceeds of such sale, after first paying therefrom the tax of the city of Malden; such claims to be paid in the order of their attachment.”</p> <p>Mr. Boardman, on August 25, 1887, sold the real estate and certain personal property of the corporation not under attachment for $8,600, and received from the purchaser a portion of the price on that date, and the balance on September 15, 1887. On October 3, 1887, the plaintiff’s first action of December 17, 1886, then pending, was settled by the payment by Mr. Board-man of $4,059.12 to the plaintiff, and afterwards Mr. Boardman paid the tax to the city of Malden mentioned in the above agreement and the claims of the other attaching creditors of the corporation, leaving a balance of $3,970.72 in his hands, but did not pay the amount due on the execution issued in the plaintiff’s action of January 11, 1887, which, including costs, amounted to $3,868.08, that being the amount of the claim in question. Shortly before February 9,1888, Mr. Boardman resigned as such assignee, and his resignation was accepted, and George F. Kendall subsequently was duly appointed assignee of the corporation, and all its estate was duly assigned to him. No inventory was taken of the property of said insolvent debtor; and it is impossible to determine what proportion of the $8600 received by Mr. Boardman from the sale by him was derived from the sale of the property attached and levied upon by the plaintiff, and what proportion was derived from personal property upon which the plaintiff had no attachment or levy.</p> <p>The judge also found, in addition to the facts agreed, that the property sold by the assignee on August 25, 1887, was the same property as that described in the agreement in question ; that it was not the understanding of both Graham and Mr. Boardman that the amount received by the plaintiff from the insurance policies should be deducted from the claim in suit; that Graham never intended that Mr. Boardman should so understand the agreement; that this matter was not carefully discussed and agreed by the parties, and that, while from some things that were said Mr. Boardman got this understanding, Graham did not have it, and that Graham did not intend to deceive Mr. Boardman in this respect; and that, upon the making and execution of the agreement, the plaintiff discharged its attachment and levy, in order to enable Mr. Boardman as assignee to convey the property described in the agreement free and discharged of the attachment and levy.</p> <p>The judge made a decree, that the balance in the assignee’s hands should be paid to the plaintiff on account of its claim, which at the date of the decree exceeded, with interest, the amount of such balance.</p>

<p>Tort for the conversion of loam and gravel alleged to he the property of the plaintiff, and to have been taken by the defendant from Moon Island in Boston Harbor to the Calf Pasture in Dorchester, in constructing its system of improved sewerage. 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, the material part of which appears in the opinion.</p>

<p>Trustee Process — Shares in Co-operative Bank — Notice.</p> <p>A co-operative bank is chargeable in a trustee process as the trustee of a member at the withdrawal value of his shares, although he lias given it no notice of his desire to withdraw such shares.</p>

<p>Contract to sell Shares of Slock — Stock-Jobbing — Equitable Ownership — Consideration — Option — Tender—Notice — Offer to perform.</p> <p>The equitable owner of shares of stock, held for him on a naked trust, consented to his trustee’s assigning or agreeing to assign them to trustees, to sell and account to the owner for the proceeds, or if not sold within a year to return them to him, his representatives or assigns. On August 9, 1886, before such sale or return of the shares, a person agreed witli such owner to take the shares at the end of a year at the owner’s option, if he failed to secure a bid for the stock within that time. On the evening of August 8, 1887, the owner mailed a lettev to such person, which in due course of mail would reach him on the next day, notifying him that he expected him to take the stock according to the agreement. No reply was made to the letter, although received, and three days later, upon formal demand by the owner for the price and a tender of the stock which had been returned to him, such person refused to take it or pay the money. Held, that the agreement was valid and rested upon sufficient con sideration, that the owner was not obliged to make a tender ad diem, and that the notice of his election and the offer to perform were sufficient.</p>

Petition, filed April 6, 1888, by Charles E. Willard, Caroline I. Abbott, and Carrie F. Abbott, to the Superior Court, for a jury to assess- the damages for the taking of land for a highway in Boston.

<p>False Pretences — Indictment — Mortgage — Merger — Knowledge.</p> <p>One who obtains goods to be delivered to him from time to time by giving a mortgage of personal property which he falsely represents that he owns, is guilty of obtaining goods by false pretences, under the Pub. Sts. c. 203, § 59, the false pretence being a continuing one, and applicable to each delivery of goods.</p> <p>An averment in an indictment for sucli an offence that goods bought were obtained by the false statement on the part of the buyer that he was the owner of certain property, upon which lie gave a mortgage to the seller, thereby inducing him to part with the goods, is a clear and sufficient charge of obtaining goods on false pretences, such false pretence being the direct, and not the remote, means of obtaining the goods, even if they would not have been delivered but for the giving of the mortgage.</p> <p>At the trial of such an indictment there was evidence that the seller parted with the goods on the strength of the buyer’s “ statements and the mortgage,” which statements were false; and that the seller had been warned by the true owner not to deal with the buyer with respect to such property. The presiding judge refused to rule that there was no evidence to support the charge as laid, or that the false pretence was merged In the mortgage, or that, if the seller had the means of knowing that the property was another’s, the buyer could not be convicted. Held, that the defendant had no ground of exception.</p> <p>Upon such an indictment it is only necessary to prove that some definite portion of the goods were obtained by means of the alleged false pretence.</p>

<p>Equity Pleading — Mutual Account—Set-off—Partnership Accounting — Insolvent Debtor.</p> <p>A bill in equity upon a mutnal account imports an offer on the part of the plaintiff to pay any balance that may be found due from him to the defendant, and cross items upon such an account in the defendant’s favor are not matters of set-off, and need not be pleaded to be availed of except when the whole account is set out in the answer.</p> <p>jfhe Pub. Sts. c. 137, § 81, which provide that no action shall be maintained against an executor or administrator after an estate has been represented insolvent, except in certain cases, do not apply to a bill in equity brought by the administrator of a deceased partner whose estate is afterwards declared insolvent against his surviving partner for an account; and the defendant is entitled to a decree if a balance is found due in his favor.</p> <p>Upon such a bill in equity the defendant is entitled to be credited for firm debts paid by him more than two years after the administrator had given bond, but not for a note given by the intestate to him in payment of a balance due him on the account at a certain date.</p>

<p>A ction for Deceit — Declaration — Demurrer — Representation.</p> <p>A declaration in a count in tort for deceit alleged that the defendant, in order to induce the plaintiff to make a contract with a railroad company to build a section of its road, falsely represented that he and another had bought enough rails at a certain price to build it, and that, if the plaintiff would enter into such a contract, they would sell to him at the same price the rails already purchased by them; that the plaintiff, believing such representations to be true, and relying thereon, was thereby induced to enter into a contract with the company for the construction of the section of road, and entered upon its performance ; that the defendant and such other had not then purchased the rails, or any part of them, as the defendant then knew, and therefore did not sell, and did not intend to sell, rails so purchased to the plaintiff; that the plaintiff, under his contract, which he was induced to enter into by reason of the false and fraudulent representations of the defendant, was obliged to purchase the requisite number of rails, and to pay a large price for them; and that by reason of the failure of the defendant to furnish the rails the plaintiff was greatly damaged before he discovered that the defendant had not purchased the rails. Held, on demurrer, that the declaration did not set forth a good cause of action.</p>

<p>City of Lynn — Charter and Ordinance — Superintendent of Streets — Agency — Negligence.</p> <p>The charter of the city of Lynn (St. 1850, c. 184,) confers the power in § 8 upon its city council, as it may by ordinance determine, to “ appoint or elect all subordinate officers, not herein otherwise directed, for the ensuing year, define their duties, and fix their compensations, in cases where such duties and compensations shall not be defined and fixed by the laws of this Commonwealth”; and the street ordinance of the city of 1879 provides, in § 26, that there shall be elected by ballot “a superintendent of streets, who shall perform the duties and exercise the powers of a surveyor of highways under the statutes of the Commonwealth,” and that “he shall continue in office until removal, or until a successor be chosen and sworn to the faithful performance of his duty”, and in § 27, that the superintendent of streets shall perform his duties “ under the care and direction of the mayor and aldermen.” Held, that the superintendent of streets of that city is a public officer, for whose negligence while performing his official duties it is not liable.</p>

<p>Carriel' by Railroad — Connecting Line — Contract — Lien for Freight — Conversion.</p> <p>A carrier by railroad made a written contract with a shipper for the transportation of horses over its own and a connecting line, of which it was not the agent, and in making up the total freight, which the shipper prepaid, allowed less for the carriage over the connecting line than by the tariff of the latter it should have done; and the connecting carrier, upon the arrival of the horses at their destination, refused to deliver them unless the additional freight was paid to it by tlie shipper. Held, in an action for conversion, that the connecting carrier acquired a lien on the horses for the additional freight, although when it accepted them for carriage it might have had notice from the way-bill that there had been an attempt to prepay the freight, and although the contract was shown to it before it refused to deliver the horses.</p> <p>In such action it was held that the shipper was not entitled to go to the jury on allegations of unreasonable delay in the transportation, and of detention of the horses upon the cars, there being no evidence of such delay after their arrival, and the consequences of their subsequent detention being alleged only as a matter of aggravation of a wrongful refusal to deliver them; and that, the refusal to deliver the horses being rightful, negligence, if any, in the care of them while detained, could not be relied upon as a substantive cause of action.</p>

<p>Writ of dower, dated November 2, 1886, by the widow of George B. Trumbull, against his sole heir at law. Trial in the Superior Court, without a jury, before Barker, J., who ruled that the demandant was not entitled to dower in the lands described in the writ, and found for the tenant, and reported the case for the determination of this court, in substance as follows.</p> <p>Susan Bryant, the former owner of the lands in question, died in 1848, and her will, which was dated March 3,1847, after providing among other things for the support and education of her “ adopted son, George Bryant Trumbull,” who was described as the minor child of her sister, Catherine Trumbull, and her sister’s husband, James Trumbull, contained the following provision :</p> <p>“ Sixth. I give, devise, and bequeath to my said adopted son, the said George Bryant Trumbull, all the rest and residue of my estate, real and personal and mixed, of which I may die seised or possessed, or in which I may have any right, and wheresoever found, to have and to hold to him for life and to his lawful issue forever, if he shall die leaving any such issue; but in case he shall decease without leaving such issue, then I give, devise, and bequeath all the said rest and residue of my said estate, real, personal, and mixed, to Harriet Trumbull, Julia Trumbull, and Catherine Trumbull, children of James and Catherine Trumbull before named, to be equally divided between them, share and share alike, and to their heirs and assigns forever.”</p> <p>George B. Trumbull, by himself or his tenants, occupied the lands in question, which passed to him under the above clause of the will, from the time when he became of age until he died, on November 1, 1883, intestate, leaving a widow, the demand-ant, and one child only, the tenant, who was in possession of the lands in question. Harriet, Julia, and Catherine Trumbull, the persons named in the sixth clause of the will, survived the testatrix, and were either living at the death of George B. Trumbull, or had heirs other than him.</p> <p>If the ruling and finding were correct, judgment was to be entered on the finding for the tenant; otherwise, such judgment was to be entered as justice might require.</p>

<p>Railroad — Passenger — Riding on Freight Locomotive — Custom.</p> <p>A person who attempts to get into the cab of a locomotive engine attached to a freight train on a railroad used exclusively for the transportation of freight, to ride for his own convenience, by invitation of the conductor of the train, does not acquire the rights of a passenger, and cannot recover for personal injuries occasioned to him by the starting of the engine, even if he has previously ridden thereon by a similar invitation, and has seen others, including railroad employees, do so.</p>

<p>Declaration—Demurrer — Surplusage — Proximate Cause.</p> <p>A declaration against a street railway company alleged in one count that the plaintiff, a woman, took passage in one of its cars for B., the terminus of the line, and paid her fare; that while the car was on its way she was ordered to leave it, and afterwards forcibly expelled; and that, in consequence of the expulsion together with the defendant’s neglect of duty in not carrying her to B., and of her walk thereto in order to reach her home, she was injured; and in another count, after reciting the same facts, further alleged that, after her expulsion from the car, the plaintiff “ walked to B., her home, there being no other way or means of reaching B.,” and that she was injured by the expulsion, by the neglect to carry her, and by the walk. Due care on the plaintiff’s part was alleged in each count. Held, on demurrer, that the plaintiff under the first count could recover for injuries resulting from her expulsion, and that under the second count she might recover, not only for such injuries, but for those resulting from her walk to B., if that was the natural and probable consequence of the defendant’s act.</p>

<p>Money paid by Mistake — Fraud — Agreement of Compromise.</p> <p>A creditor with others signed an agreement giving his debtor time, with an option to settle for fifty per cent, and the debtor, who mistakenly supposed he owed him twice as much as he did, purporting and intending, as the creditor understood, to pay one half the debt, paid the whole amount to the creditor, who knew the mistake, but did not mention it to the debtor. Held, that the debtor could recover back one half of the amount paid by him.</p>

Contract upon a promissory note, made by one EMridge, payable to the order of the defendant, and indorsed by him to the plaintiffs. Trial in the Superior Court, before Dunbar, J., who, after a verdict for the plaintiffs, allowed a bill of exceptions, which, so far as material, appears in the opinion.

<p>Railroad Consolidation — Liability of New Corporation — Statute.</p> <p>A railroad under lease issued bonds, guaranteed by the lessor, which provided that the holders might convert them into shares of stock of the lessee at par at any time after the completion of its road, — all by the express authority of special statute. After the road was completed, the lessor and lessee united, under a statute which provided that “ the corporation so established shall . . . be subject to all the duties, restrictions, obligations, debts, and liabilities to which, at the time of the union, either of said corporations is subject,” and that “ all claims and contracts . . . against either corporation may be enforced by suit or action, to be commenced and prosecuted . . . against the corporation to be established under this act.” After the consolidation, a holder of such bonds, to whom interest accruing thereon was paid by the new corporation, made a demand upon it for shares of stock as provided therein, but agreed to accept in satisfaction of his demand shares of stock in the new corporation, and the demand was refused. Held, that such bondholder might recover from the new corporation the damages occasioned to him by such refusal, and that his acceptance of interest was immaterial.</p>

Contract upon a poor debtor’s recognizance, entered into by the first named defendant as pi’incipal and by the other defendant as surety, and conditioned among other things that Gomez, who was duly arrested on execution on March 24,1887, should within thirty days from the day of his arrest duly deliver himself up for examination before some competent magistrate.

<p>Nullity of Marriage — Fraud — Decree in another State — Jurisdiction— Insane Pauper — Settlement. .</p> <p>A married woman, who had been insane prior to her marriage but had recovered and was sane and competent to contract at that time, became incurably insane, and was duly committed as a pauper to a lunatic hospital. Subsequently the husband removed to another State, and there procured a decree annulling the marriage, on the ground of fraud in concealing from him the fact of her prior insanity. Notice of the proceedings there were served upon her at the hospital, but she was not in any way represented therein. Held, that such decree was insufficient to annul the marriage here, and could not affect a settlement derived by her from the marriage.</p>

<p>Two indictments for an attempt to destroy a town way, dam, or bridge. Trial in the Superior Court, before Brigham, C. J., who, after a verdict of guilty, reported the case for the determination of this court. The material facts appear in the opinion.</p>

<p>Tax — Building as Real Estate—Payment under Protest—Recovery bach.</p> <p>A building affixed to land cannot be taxed as “ real estate ” apart from the land to which it is attached.</p> <p>If such a building is owned separately from the land as personal property, it cannot be taxed as real estate to the owner so as to create a lien; and if such owner before paying the tax sells it, the purchaser will not succeed to any personal liability of the owner to pay the tax, but, upon paying it after á protest in writing, may recover it back.</p>

<p>Bill in equity, filed October 12, 1888, by tbe executors and to astees under the will of Charles L. Smith, against the trustees and beneficiaries under the will of Stephen Smith, for instructions. Hearing before W. Allen, J., who reserved the case for the consideration of the full court, in substance as follows.</p> <p>Stephen Smith, who was the father of Charles L. Smith, died on April 14, 1875, leaving a will, which was duly admitted to probate, containing the following provisions:</p> <p>“ All of the rest, residue, and remainder of my estate, both real, personal, and mixed, of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, I give, devise, and bequeath as follows, that is to say: I direct that the same be divided into four equal parts as nearly as may be. Three of said four parts I give, devise, and bequeath to my four children: Mrs. Eliza D. Bartlett, wife of John B. Bartlett, Adeline A. Allen, wife of Wm. Henry Allen, Charles L. Smith, and Edward F. Smith, in equal proportions, share and share alike, to have and to hold the same to them, their heirs, and assigns forever, excepting and provided that my said son, Edward F. Smith, shall have twenty-five thousand dollars less than each of the other said children, that sum having been already* advanced to him in his business. I give, devise, and bequeath the remainder, said fourth part, to said Charles L. Smith and John L. Lothrop, of Somerville, Mass., physician, to them, their heirs and assigns, and the survivor of them, his heirs and assigns, but nevertheless in trust, to be managed and improved, with power to sell and convey any part of the same, and reinvest the avails thereof, and to change any investment at any time, to collect the income, and, after deducting a reasonable compensation for their services as trustees, to pay over and divide the same, the said net income, equally among my said children, share and share alike, and to the survivor or survivors of the same, for and during their natural lives, in the event of either dying without issue then alive, and without a will disposing of his or her share of the principal estate, as hereinafter provided.</p> <p>“It is my will that each.of my said children shall have the right and power to dispose by will of his or her share, to wit, one fourth part of the said fourth part, as they may see fit; and in case such disposition is made of the same, the trustees are to convey the same accordingly, discharged of all trusts; but in, case either shall die without such will, leaving issue then alive, his or her share shall be paid and conveyed by said trustees to the issue so left.</p> <p>“ In case all my said children shall die leaving no issue and, without a will disposing of their shares, as hereinbefore provided* then it is my will that the said fourth part, or what may then, remain thereof, go and be paid to my legal heirs, the same as ii then inherited by them of me.”</p> <p>The one fourth part of the estate of Stephen Smith set apart, under the above clause of his will, consisted of three parcels of real estate in Boston: the Minot Hall estate, so called, situated on the corner of Washington Street and Springfield Street; an estate on Brookline Street; and another on West Canton Street. John L. Lothrop and Charles L. Smith were duly appointed trustees under the will of Stephen Smith, and continued to act together as such until the death of Lothrop, subsequently to which Charles L. Smith continued to act as sole trustee in the management of the above named estates, until he died on March 18, 1888, when new trustees thereof were appointed. Charles L. ' Smith, who had never married and had no children, left a will, which was duly admitted to probate, and which, after providing among other things for an annuity for his aunt, Temperance L. Howes, and that the persons named as trustees should be executors, contained the following provisions:</p> <p>“ 2. The Boston Five Cents Savings Bank holds a mortgage for thirty-five thousand dollars, given by me as trustee, on the property known as Minot Hall, situated at the corner of Washington Street and Springfield Street in said Boston. My will is that this mortgage debt be paid off out of my estate as soon as may be conveniently after my decease, and the mortgage discharged. I then give and devise the said Minot Hall estate, that is, all of my interest therein, to James S. Cumston, Wml Henry Allen (my brother-in-law), and Stephen S. Bartlett of said Boston, but nevertheless in trust, as follows, viz.: My father, Stephen Smith, by his last will and testament, dated March 4th, a. d. 1875, and duly probated in the Probate Court for the County of Suffolk, gave and devised one of the four parts into which the residue of his estate named in said will was divided, to myself and John L. Lothrop, and the survivor of us, in trust for the purposes and with the powers specified and set forth therein. Said Lothrop having died, I have been managing and holding the trust estate under said devise of my father as the surviving trustee. By virtue of the power given by my father in said will to his children to dispose by will of his or her portion or share, I wish and do give and devise my share and intei’est in the said Minot Hall estate, held by me as trustee, and in which I have as an individual one fourth interest under the said will, with a power of disposal as aforesaid, to the said Allen, Cumston, and Bartlett, named as trustees as above, to be held, managed, and improved, with power to sell and convey the same, and reinvest the avails thereof, the sale being either at public auction or at private sale as they deem best, and with power to change any investment at any time, the net income realized to be paid and divided equally among rafy brother and sisters, such as may survive me, share and share alike, and to the survivor or survivors of them, for and during their natural lives, in the event of their dying without issue, that is, without children then living, and without a will disposing of his or her share of the principal estate, as hereinafter provided. It is my will that each or either of my brother and sisters shall have, and I hereby give each of them, power to dispose of his or her share or portion of the principal estate hereby devised in trust as they may see fit, by a last will and testament, and in case this is done, then the same is to be conveyed accordingly, discharged of all trust created by this will, the rest of the said property to remain subject to the trust so long as the others may survive. But in case either shall die without a will disposing of his or her share as aforesaid, leaving children then surviving, his or her share of the principal estate shall be paid and conveyed by the trustees then acting to such child or children discharged of all trusts, share and share alike if there be more than one child, the trust continuing as to the balance of the property so long as either my brother and sisters may live.</p> <p>“ S. All the rest, residue, and remainder of my estate, both real, personal, and mixed, of which I shall die seised and possessed, or to which I shall be entitled at my decease, I give, devise, and dispose of as follows, viz.: It is to be divided into twelve equal parts as nearly as conveniently may be. Two of these parts I give and devise to my nephew William Lothrop Allen on his reaching the age of thirty years; should he die before arriving at that age, then these two parts are to go and be conveyed to his mother. Three of the said parts are to go and be paid to> my nephew Stephen Smith Bartlett upon his reaching the age of thirty years, and should he die before arriving at that age then the said three parts are to go and be paid or conveyed to his mother. The said nephews are each to be allowed to have, and are to be paid, the net income of their said respective parts or portions after my decease, and from the time when the division is made as aforesaid in settling my estates, until they shall respectively arrive at the said age of thirty years, if they live so long. The other seven parts are given and devised to the said James S. Cumston, Wm. Henry Allen, and Stephen S. Bartlett, as trustees, for the uses, purposes, and with the powers following, to wit: They are to hold the same in trust, manage and improve the same, with power to sell and convey the same at private sale or public auction, to invest the avails thereof, and to change investments at any time, or to mortgage the same for tlie purposes of the trust, if need be, and but of the net income thereof they are to pay, first, to my cousin, George L. Stafford, yeai’ly the sum of five hundred (500) dollars, in equal quarter-yearly payments; next, the annuity of one hundred dollars a year to my said aunt, Temperance L. Howes, as provided hereinbefore, the same being paid semiannually in equal instalments, and being made a charge only upon the said seven parts. The rest of the said income is to go and be paid to or for the benefit and support of my brother, Edward F. Smith, and his children. The trustees for the time being are to divide and pay the same to or for the benefit of my said brother and his children, in such sums, and in such a way and manner, and at such times, and for such purposes, as they in the exercise of their best discretion may see fit and deem best, for and during the natural life of my said brother, having the right and power at any time, in their discretion, to withhold all or any part of the income from my said brother, and pay and use the same to or for the benefit of his children, and also having the right and power in the exercise of their discretion to withhold any part of the income from either of his children, and to pay the same, or use the money, for the benefit of such other of the children as they see fit, and in such a way as they deem best, the whole matter of the division and expenditure of the money for the use and benefit of my said brother and his children during his life being committed to the full control and discretion of the trustees. Upon the decease of my said brother, leaving children surviving him, it is my will that the principal estate of the said seven equal parts, and all the accumulations thereof then remaining, shall go, subject to the said annuity charge, to his children living at the time of his decease, in equal shares. His or her portion of the income is to be paid to each, until they arrive respectively at the following ages, to wit, the boys thirty years, and the daughters twenty-five years, and when they shall arrive at these ages respectively, or as fast as they do, his or her share shall then be paid to them; that is, their share of the principal sum, discharged of all trusts. It is however provided, that if any of the children of my said brother living at his decease shall not arrive at the said required age for the enjoyment of his or her share of the principal sum discharged of all trusts within twenty-one years after the death of my said brother, then all such shall have and receive and be entitled to his or her portion, discharged of all trusts, at the expiration of that period. In speaking of the children of my said brother under this trust, I mean to include only the children by his present wife, and to exclude such as he may have, if any, by any other wife, should the present one die and he marry again. In case of any of the children of my said brother dying after his decease, and before they become of the requisite age as aforesaid to be entitled to their share of the principal sum, and without children living, then his or her share shall go and be paid to and divided among the surviving brothers and sisters, share and share alike, standing thereafter the same as their other respective portions under this clause of my will.”</p> <p>The two daughters of Stephen Smith, who still survive, contended that the interest of Charles L. Smith in the estates on Brookline Street and West Canton Street did not pass by the residuary clause of his will, but remained to be administered by the estate created under the will of Stephen Smith.</p> <p>The legatees and beneficiaries under the residuary clause of the will of Charles L. Smith contended that his interest in such estates had passed under such residuary clause, and was to be administered for their benefit.</p> <p>Under the residuary clause of Charles L. Smith’s will, besides the property in question, in which his share was of the value of $5,000 only, property passed of the value of $55,000.</p>

<p>Trust — Breach by Trustee — Payment by Sureties—Contribution — Subrogation.</p> <p>A trustee, to secure his private debt, pledged shares of stock belonging to the trust estate to a bank, which sold them and applied the proceeds on the debt. The executors of a surety on the trustee’s bond paid to the trust estate the value of the stock, with interest thereon from and after a certain date, up to which time first the trustee and then a co-surety on his behalf, to conceal the misappropriation and to prevent a further breach of trust, made good to the cestuis que trust the dividends on the stock. Held, that the executors could not recover from the bank, in addition to the amount paid by them to the trust estate, interest thereon prior to such date and during the time such co-surety paid the dividends.</p>

<p>Trust — Suit against Executors of Trustee — Statute of Limitations — Culpable Negligence.</p> <p>A beneficiary under a trust, who liad assigned his interest, assuming to act as such, brought a bill in equity against the executors of the trustee, for a breach of trust, on the last day within the time limited by the Pub. Sts. c. 136, § 9, for suits against executors, both in his own behalf, and, as authorized by them, in behalf of his co-beneficiaries, who believed him to be still a beneficiary, and who did not know that he had assigned his interest until a later day. Held, that such co-benefieiaries were not chargeable with culpable negligence, within tha meaning of the Pub. Sts. c. 136, § 10, in not prosecuting their claim within the time limited, and might maintain another bill in equity for the same cause of action</p>

<p>Contract. The defendants demurred to the declaration; and the Superior Court sustained the demurrer, and ordered judgment for the defendants. The plaintiff appealed to this court. The allegations of the declaration and the grounds of demurrer, so far as material to the point decided, appear in the opinion.</p>

Tort for personal injuries sustained by the plaintiff while in the defendant’s employment. Writ dated November 4, 1887. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, which, so far as material, is as follows.

Contract by the administratrix of the estate of Nathaniel Cummings for the six months’ use and occupation of certain real estate. Trial in the Superior Court, without a jury, before Lathrop, J., who allowed a bill of exceptions, in substance as follows.

<p>Tout for false representations. The amended declaration contained, among other allegations, the following: “ And the plaintiff says that the defendant, then being interested in, and a large stockholder in, and a director, president, and chairman of the executive committee of the Bay Ridge Steamship Construction Company, made and issued, or caused to be made and issued, or allowed and permitted to be made and issued a certain prospectus or paper, a copy of which is hereto annexed marked ] ‘A,’ and bearing his name as president and director, with the purpose of inducing the public to subscribe for and purchase the shares of said corporation, whereby he would derive a pecuniary benefit; that all the statements of said prospectus, both in fact and opinion, were false, fraudulent, and misleading, and especially the statements contained in the said circular or prospectus setting forth the value of the real estate, and thé price paid for it, and the amount of money paid into the capital fund of said property, and the right of the company to extend its piers, were false and misleading; . . . that the plaintiff read said circular or prospectus, and said false and misleading statements, and especially the ones hereinbefore referred to, and believing the same to be true, and relying upon the same as true, was thereby induced to and did subscribe for and purchase a large number of the shares of the capital stock of said corporation. . . ’. And the plaintiff further says, that the shares of said capital stock of said corporation at the time of the issuing of said circular or prospectus, and at all times thereafter, and now, are utterly worthless, and that he has lost all the money so paid by him to said corporation for or on account of said shares.” The prospectus, annexed to the declaration, consisted of a pamphlet of several pages of printed matter. Answer, a general denial. »</p> <p>Trial in the Superior Court, without a jury, before Mason, J., who allowed a bill of exceptions, which, so far as material, was as follows.</p> <p>The plaintiff called as a witness A. Perry Bliven, a director of the company, and, after calling his attention to a specific statement in the prospectus annexed to the declaration, put to him- the question, “ Is that statement true ? ” To this question the defendant objected, on the ground that the question had reference to a representation which had not been specifically set forth in the declaration. The judge ruled that the plaintiff, in introducing evidence as to representations contained in the prospectus annexed to the declaration, must be confined to those representations which were specifically set forth in the declaration, and excluded the testimony.</p> <p>The defendant put certain questions to various witnesses, among them directors of the construction company, all of which the judge, against the plaintiff’s objection, permitted them to answer, those to the directors being admitted as bearing on the question of their good faith, but the bill of exceptions did not disclose what any of the answers to these questions were.</p> <p>The judge made the following finding for the defendant: “ In the above action the court finds for the defendant, and finds specially that the plaintiff did not rely on the statements of fact contained in the prospectus signed by the defendant.” The plaintiff alleged exceptions.</p>

<p>Personal Injuries — Licensee on Land — Dangerous Hole.</p> <p>An open hole in the earth, which is not concealed otherwise than by the darkness of the night, is a danger which a mere licensee going upon the land must avoid at his peril.</p>

<p>Assessment of Taxes on Real Estate — Deceased Owner — “Person.”</p> <p>Taxes on real estate must be assessed, under the Pub. Sts. c. 11, § 13, to the living owners of real estate; and an assessment to a person deceased, who owned such real estate at his death, is illegal and void.</p>

<p>Contract. The declaration was in three counts, the first of which was for the breach of an agreement by the defendants to sell to the plaintiff pure raspberry jam, and the second and third counts for a balance of an account between the parties alleged to be due the plaintiff. Trial in the Superior Court, before Lathrop, J., who reported the case for the determination of this court, the report so far as material being as follows.</p> <p>The following facts appeared in evidence. The plaintiff, a grocer and dealer in jams in Boston, on August 25, 1882, gave an order to the defendants, who were grocers and manufacturers of jams in New York, for raspberry jam, receiving from the defendants at the time the following, signed by them: “Memorandum. . . . Abt 10,000 lbs. raspberry jam, 11 cts., pure,” the word “ pure ” being underscored. No time for delivery was expressly agreed upon in the contract. The plaintiff, after some correspondence with the defendants respecting the credit to be given him, on August 81, 1882, wrote to them: “ Enclosed find check for ($1000) one thousand dollars, to be applied in payment for ten thousand pounds pure raspberry jam, ordered August 25.”</p> <p>Between September 5 and October 6, 1882, the parties had some correspondence as to the quality of various samples of jam submitted to the plaintiff in half-barrels and gallon cans, and on the latter date the plaintiff wrote to the defendants: “ We expect you to ship us without delay ten thousand pounds pure raspberry jam, as per agreement. If sample sent in gallon cans is a pure article, and the berries sound, we would like goods at once. We think we have serious grounds for complaint in the way we have been delayed and bothered, being unable to fill orders.” On October 9 the defendants wrote they would ship twenty-five kegs of about one hundred and twenty pounds each that week, and balance of ten thousand pounds within ten days after hearing from the plaintiff that the quality of that shipment was satisfactory; and at intervals between October 13 and November 21,1882, shipped to him, in four lots, ten thousand one hundred and forty-five pounds of jam. After the first shipment was received by the plaintiff, without an examination of the same, having an order for jam, he sold one keg from that shipment.</p> <p>Before December 14, 1882, the defendants drew a sight draft on the plaintiff for $114.20, which was returned with the indorsement, “Goods not what was ordered, — will write”; and on that date, and again on December 27, 1882, the defendants wrote, expressing their surprise at the return of the draft, and said they had not received any letter of explanation, and asking for an explanation at once. On December 30,1882, the plaintiff replied: “ I have waited for your final shipment to have different shipments for comparison with sample of Thurber’s best goods, sent in gallon cans to represent what was to follow. I have submitted same to experts, who pronounce it totally and altogether inferior to gallon cans. . . . We have entire amount of jam, except one keg sold, and would be pleased to return goods and recover money.” On January 5, 1883, the defendants wrote: “ Unless you at once remit check to cover past due balance of account, $303.38, we shall place it in the hands of our attorney for collection.” On January 13, 1883, the plaintiff wrote, re ferring to a letter received from the defendants’ attorney, saying that the jam sent was not what he ordered, and proved to be a very inferior and unsalable article; that he held it subject to the defendants’ order and risk; and refused to receive it, and asked what disposition the defendants desired to make of the goods; adding, “ I also notify you that I shall hold you responsible for the damage and loss I have suffered by your breach of the contract.” On January 22, 1883, the defendants replied: “ I regret very much your dissatisfaction about that lot of raspberry jam. Having seen the attorney’s letter, I spoke to Mr. H. K. Thurber about it, and after discussing the matter he desires me to say, that, notwithstanding the fact that Mr. Chase insists that the goods were like the sample, he is willing to receive the whole lot back and credit it up to you, together with all freight charges, and in this way settle the matter, as we do not care to lose your trade, and we always desire to give our customers satisfaction. Advise us when and how you ship the jam.” This letter was signed by one Wallis, a salesman, who, it was admitted, was duly authorized. After this letter was received by the plaintiff, he had samples of the goods taken from each of the shipments and put into small glass jars, for the purpose of using the same as evidence of the article received by him in any subsequent action against the defendants for damages, and shipped back all the rest, except the keg sold on October 30,1882, sending to the defendants, on January 25,1883, these statements, with amounts paid for freight and cartage: “We send this day, per Metropolitan S. S. Line (93) ninety-three kegs mdse,” and “ Received 94 kegs, $102.59; returned 93 kegs, sold 1 keg.” No signature was attached to either statement, but they were written on letter-heads of the plaintiff.</p> <p>On February 2,1883, the defendants wrote: “We send you by express to-day a sample of the raspberry jam which we took out of the first keg we opened. I want you personally to examine it, and tell me frankly if you can find any just cause for complaint. As I told you before, we always desire to please our customers, and for that reason we receive it back, and credit it up to you; but we really do not see in what respect the jam was wrong.” To this the plaintiff replied, on February 6,1883: “ Yours of February 2d received, and contents noted. . . . Remit our money at once and oblige.” On February 8, 1883, the defendants wrote: “ As requested by yours of the 6th inst., we beg to enclose our check for $837.86, amount to your credit, which please acknowledge.” No further correspondence passed between the parties. The plaintiff had purchased teas of the defendants in September and October, 1882, and this sum was the amount of a balance remaining after deducting from the $1,000 the bills for such teas, a discount on account, and freight and cartage. No interest on the use of the $1,000 was included in the sum forwarded.</p> <p>The plaintiff testified that, by reason of the failure to receive the jam ordered, he was without raspberry jam, was unable to fill his orders, and thereby suffered damage. He also offered to prove by expert testimony that the alleged jam sent by the defendants was not raspberry jam at all, bat an entirely different article, not salable as raspberry jam, or suitable to use in this market, or of any value.</p> <p>The judge being of the opinion, on the foregoing evidence and offer of proof, that the action for damages on the first count could not be maintained, ordered a verdict for the defendants on that count, a verdict being returned for the plaintiff on the second and third counts as agreed by the parties; and reported the case for the determination of this court. If the plaintiff was entitled to maintain the action on the first count, a new trial was to be ordered; otherwise, judgment was to be entered on the verdict.</p>

Contract on a judgment brought, as recited in the writ, “for the benefit of George M. Rice, assignee ” of the judgment, which it was' alleged was recovered by the plaintiff against the defendant in the Superior Court, on July 12, 1879, and upon which an execution was duly issued and remained unsatisfied in part.

<p>Conversion — Evidence — Sheriff — A ttachment — Fraudulent Conveyance.</p> <p>In an action against a sheriff for the conversion of a horse, there was evidence of its sale and delivery to the plaintiff by an intestate, who owned it. The defendant, who justified under an attachment of the horse in an action by the intestate’s administratrix against his housekeeper for its conversion, after evidence tending to show that the horse was never delivered, and remained in the intestate’s possession till his death, offered evidence that the housekeeper thereafter wrongfully took possession of the horse, claiming to be the owner, but had no title beyond that of an intermeddler; and that the sale to the plaintiff was in fraud of the intestate’s creditors. Held, that the evidence offered was rightly excluded.</p>

<p>Contract— “ Satisfactory Completion ” of Subject Matter.</p> <p>A contract in writing recited that a person agreed with a mill-owner to furnish and set up a system of heating in his mill according to tests and requirements described, and for a price to be paid upon its “ satisfactory completion ”; if such person was unable properly to heat the mill in accordance “ with the requirements,” and was unable to do so within ten days after notice of that fact, he was to remove the system at his own expense, it being distinctly understood that the providing of the entire system was to be done at his own risk absolutely ; “ in the event of the system proving satisfactory and conforming with all the requirements,” the price was to be paid to him “ after such acknowledgment has been made by the owner or the work demonstrated.” Held, that the satisfactoriness of the system was to be determined, not according to the private taste and liking of the mill-owner, but by the mind of a reasonable man, and by the means afforded by the contract.</p>

<p>Personal Injuries — Defective Sidewalk — Cover of Coal-Hole — New Trial.</p> <p>At the trial of an action against a city for an injury caused to a traveller by falling into a coal-hole in the sidewalk of a highway, there was evidence that the cover to the hole was loose, and that the stone into which it was fitted was “rounded underneath,” so that the cover would tip up or turn over when stepped on, and this was apparent from the street; that, although the cover could be securely fastened by a bolt on the inside, it was usually left unfastened ; that this condition of the coal-hole and cover had existed for a considerable time and was known to a police officer of the city, who had reported the fact at his station; and that half an hour before the accident the cover had been removed by one rightfully putting in coal, who upon replacing it neglected to fasten it on the inside. Held, that there was evidence of a defect in the sidewalk, of which the city might have had notice by the exercise of reasonable care and diligence, even if the police officer's knowledge was not of itself notice to the city.</p>

Tort for personal injuries occasioned to the plaintiff while in the defendant’s employment. At the trial in the Superior Court, before Sherman, J., there was evidence tending to prove the following facts. The defendant corporation was engaged in the manufacture of machinery, and on April 27, 1888, the plaintiff, by direction of the defendant’s foreman, was at work on a drilling machine in its shop.

Writ of entry, dated March 15,1888, to recover a parcel of land in Somerville. Plea, mil disseisin. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows. Evidence was introduced tending to prove the following facts.

<p>Equity Practice — Appeal—Chattel Mortgage by Remainderman.</p> <p>The only question before this court, upon an appeal from the final decree of a justice of the Superior Court, sitting in equity, without a report of the evidence or of any of the facts found by him, is whether the decree is supported by the pleadings.</p> <p>A mortgage of personal property, containing the usual covenants and given by one with a vested interest therein subject to an estate for life, will operate as an equitable assignment at least of such interest, which the mortgagee may enforce after the life tenant’s death.</p>

<p>Replevin of two horses, a wagon, and other personal property. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, which so far as material was as follows.</p> <p>The plaintiff testified, in substance, that in June, 1884, one of the horses was bought for her by her father, Russell T. French, with money he owed her previous to her marriage; that the other horse was bought by her father in December, 1884, and was given to her by him ; and that the wagon was purchased for her in June, 1884, by her father, with her money. On cross-examination, she testified that the wagon was purchased with money which her father owed her previous to her marriage, and was for use in her husband’s business. She admitted that she was not present in person at any of the purchases, and did not pay any of the money in personand that she permitted her husband to use the horses and wagon in his business as he pleased, she paying neither for the care nor for the repairs of the same.</p> <p>Russell T. French testified that the plaintiff and himself went to one Britton of Stoughton, and one of the horses was purchased by him for her, the money being paid by her; that he could not tell whether a bill was then given ; that subsequently on three different occasions he gave money to the plaintiff, and accompanied her to Britton when she paid the same to him; and that he could not give the dates nor the amount paid each time, except that the last amount was about sixty dollars. Two receipts were produced, which he testified were given to the plaintiff on those occasions, for the money paid at the time of the respective receipts. One of these receipts was dated at Stoughton, May 7,1887, and signed by Britton, and recited that he had “ received of Mrs. Dora C. Brooks twenty-five j-g-ff dollars on acct. of bay horse ”; and the other, also signed by Britton, was also dated at Stoughton, July 25,1887, and recited that he had “ received of Dora 0. Brooks fifty-four dollars, balance due on bay horse.” The judge admitted these receipts against the defendant’s objection, and the defendant excepted.</p> <p>French also testified that in the same year he purchased of Britton the other horse, giving his note for .it, which he subsequently paid, and that he gave the horse to the plaintiff. A bill of sale, which French testified was given to him for the horse, for the price of which he gave his note, although he did not testify whether it was received by him before or after the payment of the note, was admitted by the judge, and was as follows: “ Stoughton, Mass., Dec. 10th, 1886. Mrs. Dora C. Brooks, To L. G. Britton, Dr. Livery, Sale, and Feed Stable. One bay horse, $120. Ree'd payment, L. G. Britton.” The bill of exceptions did not recite that the defendant objected to the admission in evidence of this bill of sale, or alleged an exception to its admission. French also testified that he purchased the wagon in question, for the plaintiff, of one Clark, and that a bill of sale was given to him by Clark for money paid for the same by him, which bill was as follows: “ Brighton, June 30th, 1887. Dorah C. Brook, bought Clark, one two-horse wagon, one hundred dollars. Paid, S. C. Clark.” The plaintiff offered this bill in evidence, and the judge admitted it against the defendant’s objection, and the defendant excepted.</p> <p>The plaintiff did not offer either Britton or Clark as a witness to testify as to the receipts or bills of sale, nor account for their absence.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Devise of Income — Equitable Attachment— “ Comfort and Support.”</p> <p>A testator, by his will, gave to his wife during her life the income of all his estate, “ to be for her comfort and support,” expressing a wish that she provide for an unmarried daughter, and that a “house and grounds” be kept “as a home for them.” Held, that after the daughter’s death the wife had the absolute disposal of the income during her life, and that it might be reached by her creditors.</p>

<p>Bill in equity, filed in the Superior Court, and a cross bill, to remove a cloud from the title of the plaintiff, and from that of the defendants as the assignees in insolvency of Mayer J. Cohen, respectively, to certain land in Medway. At the hearing, before Pitman, J., the following facts were agreed.</p> <p>Mayer J. Cohen, on August 11, 1886, owned the land in question, and on that day executed and delivered a deed, purporting to convey it to Hyman Cline and Abraham Cline. On August 12, 1886, this deed was sent by mail to the registry of deeds in Norfolk for record, but no money was sent to pay therefor, and the deed remained in the registry of deeds unrecorded until March 1, 1888, when it was recorded. Abraham Cline and Hyman Cline, on March 2, 1888, for a valuable consideration, executed a deed purporting to convey the land to the plaintiff, which deed was recorded in the registry of deeds in Norfolk on the same day. On November 16, 1886, Cohen duly filed his petition in the Court of Insolvency, and was adjudged an insolvent - debtor, and on December 2,1886, the defendants were duly appointed the assignees in insolvency of his estate, and an assignment duly issued to them, and was recorded in Norfolk on April 28,1887. Cohen duly filed a schedule of his property in the insolvency proceedings, which did not include or refer to the land in question as his property.</p> <p>The plaintiff testified that he purchased the land and other property for $3,750, such other property not being very valuable; that he purchased it in good faith, and that he had no notice of any defect in the title; that at the time of his purchase it was subject to a mortgage to one Newell, amounting with interest to $1,416, which mortgage he paid off on March 2, 1888 ; and that since his purchase he had been, and still was, in occupation of it, either by himself or by his tenant. There was also evidence, that, at a meeting of nearly all the creditors, prior to the assignment, the cash-book and ledger of Cohen were produced, the ledger reciting the following: “ April 2d, 1886, sold farm for eleven hundred dollars, three hundred cash, and balance ($800) to be paid in six months, on delivery of deed”; and the cash-book reciting, under date of August 14,1886, “ From farm, $500.”</p> <p>The judge found that, prior to the assignment, the creditors and assignees had knowledge that the land had been sold by Cohen, and some money paid therefor; and that they had reason to believe that a deed had been given to the purchaser. The assignees denied that they had actual notice thereof, and the judge was of opinion that, as matter of law, he was not authorized to find that they or the creditors had such notice.</p> <p>The judge was of opinion that the plaintiff’s deed was not valid as against the assignees, and that the defendants only, upon repaying to the plaintiff the amounts paid out by him, were entitled to relief; and reported the case for the determination of this court.</p>

<p>Intoxicating Liquors — Complaint — “ Mixed Liquor ”—Variance.</p> <p>A complaint on the Pub. Sts. c. 100, §§ 1,27, as amended by the St. of 1888, c. 219, § 1, alleging the unlawful sale of “a quantity of intoxicating liquor, mixed liquor, a part of which is intoxicating,”' is supported by proof of a sale of whiskey.</p> <p>At the trial of such a complaint, the evidence of the government was that the article sold was whiskey; but the defendant introduced evidence that it was a mixture containing whiskey and other ingredients, and was to be used as a liniment or wash, and not as an intoxicating drink. The presiding judge refused to rule, as requested by the defendant, that the government was obliged to prove the sale of an intoxicating mixture, that there was a variance between the government’s evidence and the complaint, and that there was no evidence to support the complaint. Held, that the defendant had no ground of exception.</p>

Contract for breach of an agreement in writing, signed by the plaintiff and the defendant, as follows: “ Boston, Mass., Nov. 10, 1888.

<p>Contract for goods sold and delivered. After the former decision, reported 144 Mass. 71, the case was again tried in the Superior Court, before Mason, J., who, after a verdict for the plaintiffs, allowed a bill of exceptions, which, so far as material, appears in the opinion.</p>

<p>Tort for the conversion of and damage to certain ice. Trial in the Superior Court, before Aldrich, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff and the defendant were proprietors of icehouses on Sprague Pond, a great pond in Dedham and Hyde Park, and had an equal and common right, or right in common, to take ice from any and all parts of the pond.</p> <p>Otis H. Weed, called by the plaintiff, testified as follows: “I am the president of the People’s Ice Company. Icehouses of that company are at the north end of Sprague Pond, and the defendant owns icehouses at the south end of that pond; all the icehouses are near the railroad. Our houses are in Hyde Park, and Mr. Davenport’s are in Dedham. I was at the pond at the time the Davenports were scraping the first snow off from the ice. They had then scraped full half-way of the pond. This was in January, 1888. Afterwards, in the same month, we scraped the snow off of the pond at the northerly end thereof, up to the line where they had scraped previously. This line ran right across the pond from the railroad, at a right angle with the railroad. After a few days, I was at the pond in the morning, and found their teams at work marking and grooving about an acre of ice that we had previously scraped. This was at the westerly side of the pond. They cut eight hundred tons of this ice, and from the manner in which they cut it, affected other ice which we had scraped, so that we were prevented from cutting two hundred tons more. Mr. Davenport told me, at the time they first scraped the ice that winter, that he should not want any ice beyond the line of that scraping. I was at the pond the morning of the day they commenced to cut the ice on our side of the line, and told them that they were trespassing on our pi’operty. The only thing that we did to this ice was to remove the snow from its surface, and to put down stakes so as to show where the line of scraping was. I had been at the pond nearly every day between the -time we scraped the ice and the time they cut it. The day previous to the day they cut it, I went across the pond on the side near the railroad, but not on the side where this ice was cut by defendant. It was five days between the time we cleared the ice and the time when Mr. Davenport cut it.”</p> <p>There was no other evidence that the plaintiff had taken or retained possession of the ice in question.</p> <p>Upon this evidence, the judge ruled that the plaintiff could not maintain the action, and directed a verdict for the defendant, and reported the case for the determination of this court. If the ruling was right, judgment was to be entered upon the verdict; otherwise, the case was to stand for trial.</p>

Bill in equity, filed July 9, 1888, to recover a portion of purchase money paid in cash for land, and to enjoin the negotiation or collection of a mortgage note given for the balance. The case was heard by Devens, J., who reported it for the consideration of the full court, in substance as follows.

<p>Relocation of Way—Notice — Assessment of Damages—Statute.</p> <p>Upon a petition to the Superior Court for a jury to assess damages caused by the relocation of a way, it is not open to the petitioner to object that proper notice was not given him of such relocation, an action of tort or certiorari being the remedy, if any, for a defective notice.</p> <p>The owner of a strip of land taken for the relocation of a way was permitted, by the county commissioners’ order, to remove property upon it within a limited time, after which the town ordered to do the work cut down a hedge upon it as well as trees in front of it within the original limits of the way, and, without any notice to him or other proceedings had, removed a fence and wall forming a single structure remaining upon the strip. Held, upon such a petition, that the owner could not recover the value of the hedge or trees, but was entitled to that of the fence and wall.</p>

<p>Tort by the administratrix with the will annexed of Sir Moses D. Perkins, for personal injuries sustained by him, through the alleged negligence of the defendant while crossing Adams Square in Boston. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, which so far as material was as follows.</p> <p>There was evidence tending to show the following facts. Perkins was injured on October 15, 1885, at about half-past six o’clock in the afternoon, at which time it was dark, the sun on that day having set at two minutes past five o’clock. On that date the defendant was having an additional car track laid through the lower part of Adams Square, which is a public highway in the city of Boston, from Devonshire Street northerly into New Washington Street. The defendant had duly obtained a location from the proper municipal authorities, and a permit to dig up the street, and Core and Company, contractors, were doing the work. A trench had been excavated through Adams Square, except at a point where an existing track called the South Boston track extended from Devonshire Street northerly and westerly into Brattle Street, passing in a curve around the east and north side of the Adams Monument, so called, placed near the centre of the square. This track, with a clear space of several feet on either side, was left unobstructed, for passage between the easterly and westerly portions of the square. At each side of the passage and across the ends of the trench were placed wooden horses as barriers. Between that portion of the trench on the southerly side of this passage and the monument was a pile of dirt thrown up in digging, and then a pile of rails, ten or fifteen in number, thirty feet long and ten or fifteen inches high, lying parallel with the excavation. At the close of work on October 15, a barrier consisting of one or two heavy sticks of timber, and intended to protect passers by from injury by reason of the excavation or of the piles of dirt and rails, had been placed so as to extend from the pile of dirt to the curb of the monument, the middle portion running across and above the pile of rails, and supported upon it by a block of wood placed on the rails. The ends of the rails projected irregularly beyond this barrier and towards the passage, as was variously estimated, from five or eight inches to four or five feet.</p> <p>The shortest route for a person going from the lower or east side of Adams Square over towards Brattle Street was through the passage above described, between the two portions of the trench. There was no cross-walk maintained through this passage. The plaintiff’s testator, who was between eighty-three and eighty-four years old, was seen just before the accident walking at a moderate pace across Adams Square through this passage towards Brattle Street, and at a point about half-way between the monument and the South Boston track was seen to fall. When he was reached by those who came to his assistance, he was lying on the ground within two feet of the end of the pile of rails, and on the side towards Brattle Street, and was found to have been injured. Assistance was rendered him, and he was. taken to his home. The next morning spots of blood were found on the pavement, from twelve to eighteen inches from the projecting ends of the rails.</p> <p>On the question whether the place where the accident occurred was properly lighted, the evidence was conflicting. One witness only testified that there was no lantern on the pile of rails, and that an electric light near by in the square was not burning; while many other witnesses testified that the electric light was burning, and that lighted lanterns were placed on the timbers lying across the pile of rails and all along the trench.</p> <p>Upon the issue as to the defendant’s liability for the acts of those employed to do the work, evidence was admitted tending to show that the work was done under a verbal agreement between Gore and Company, the contractors, and the president of the defendant corporation; that the defendant was to furnish the materials, and the contractors were to procure the permit, supply the labor, and do all the work except the teaming, and were to attend to the lighting and fencing of the place where the work was to be done; that the barriers were placed and the lights set by persons employed by the contractors; and that the rails were left where they were by order of the contractors’ foreman.</p> <p>The judge refused to give the following instructions, as requested by the defendant:</p> <p>“ 1. Plaintiff cannot recover on the whole evidence.</p> <p>“ 2. The plaintiff has not sustained the burden of proof on the question of Mr. Perkins’s exercise of due care, and therefore cannot recover.</p> <p>“ 3. There is no evidence to go to the jury that Mr. Perkins when he fell was in the exercise of due care.</p> <p>“ 4. There is an utter absence of any evidence of what Mr. Perkins’s conduct was just before he fell and when he fell, and so there is no sufficient evidence to justify the jury in finding that he was in the exercise of due care.</p> <p>“ 5. If it is impossible for the jury to say what Mr. Perkins was doing, and what his conduct was just before he fell and at the moment he fell, the plaintiff has not sustained the burden of proof, and the verdict of the jury must be for the defendant. . . .</p> <p>“ 8. Mr. Perkins, being a foot passenger, was bound to keep on the sidewalks and street crossings in passing from the lower to the upper side of Adams Square, and by unnecessarily diverging therefrom he took the consequences, and his administratrix cannot recover.</p> <p>“ 9. The Metropolitan Railroad Company, having employed Gore & Co. to construct the new track, is not liable for any injury suffered by plaintiff’s testator caused by negligence of Gore & Co.’s servants, if there was such negligence.</p> <p>“10. If the jury are satisfied that under this contract between the defendant and Gore & Co. it was the duty of the latter to place proper barriers and lights, then the defendant cannot be held liable for any negligence of Gore & Co. in failing to place the barriers and lights properly, if the jury should find they were improperly placed.</p> <p>“ 11. There is no sufficient evidence of negligence or carelessness on the part of Gore & Co. or its servants in placing the barriers and lights to warrant the jury in finding a verdict against the defendant.”</p> <p>The judge, after instructing the jury that the plaintiff must prove that the testator was in the exercise of such care as a person of his age would ordinarily exercise under the circumstances, said, among other things: “ Something has been said about where Mr. Perkins had a right to walk, and where he had not a right to walk. I do not understand that there is any rule of law in regard to that. A man has a right to walk anywhere in the street or sidewalk, provided he exercises due care. If it is not due care to leave a sidewalk or flagging, then he is not in the exercise of due care. If it was due care, considering all the circumstances surrounding the case, to leave the sidewalk and flagging, then he had a right to leave it if he was exercising due care in leaving it. You are to determine, considering all the evidence bearing upon what was being done there, where the place was that he was walking, what the barriers and the lights were, — everything bearing upon that question, — whether he was at the time exercising due care.”</p> <p>The judge also instructed the jury: “ Some question has been raised about whether the defendant corporation was liable, provided it had made a contract with Gore & Co. to do this work. I do not understand that this railroad company had a right to relieve itself of its duty to the public, when it had permission to open those streets and to mend its ways or lay down new tracks, or that it can avoid or relieve itself from liability for carelessness, by letting out the contract. I therefore instruct you that if Gore & Co. put those rails where they were located, and that the sole cause of the accident was the putting them there and not properly guarding them, then that would not excuse the defendant, and it would be liable for this accident provided you find that the plaintiff was in the exercise of due care, and that Gore & Co. were negligent.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Equity Pleading and Practice — Parties — Voluntary Association — Dissolution — Rights of Minority.</p> <p>A charitable voluntary association was formed to raise a fund to maintain sick and infirm members, and subsequently, by special statute, certain members named therein and their associates were incorporated to provide and maintain a building for its use, and for any other lawful purpose. The association voted to accept the charter, and assumed in some respects to be a corporation, yet continued to act as a voluntary association under its constitution. Held, that the association was not dissolved by the act of incorporation, or by any action of itself or of members with reference thereto.</p> <p>The association formed a division of a national society, which prescribed and could alone change its constitution. An opposition national society was formed, and adopted an organization and constitution, which, while similar in their main features, differed in material respects from those of the old society. A large majority of the members of the association favored the new society and adopted its constitution, and attempted, in opposition to the minority, to take over to it the division as an organized body, and, claiming to be the original association, took possession of its property and maintained and carried on an organization as a division of the new society. The minority, who formed a quorum, thereupon proceeded to elect officers in place of those who had joined the new division, and continued to act as a division under the old constitution, and to maintain fraternal relations with the old national society. Held, that the majority ceased to be members of the old society; and that the old division was not dissolved, but continued to exist and was entitled to such property.</p>

<p>Petition to the Superior Court for a jury to assess the petitioner’s damages for the taking of land in Boston for a new court-house. Trial before Pitman, J., who allowed a bill of exceptions, which so far as material was as follows.</p> <p>The petitioner’s property consisted of a house and lot containing 3,082 square feet, and situated on the easterly side of Somerset Street, with a frontage of thirty-seven feet directly opposite the easterly end of Ashburton Place, which is forty feet wide and leads off from the westerly side of Somerset Street at that point. The petitioner’s evidence tended to show that his property was worth when taken, on August 3, 1885, from $55,000 to $65,000, and that of the respondent that it was worth from $35,000 to $38,000. The estate was shown to have peculiar advantages over other estates in the vicinity in location, being at the highest point on Somerset Sti’eet, the land and street descending each way from the same, and in having light and sun, and a wide outlook in the rear, and in upper stories especially, and in front down Ashburton Place.</p> <p>There was evidence that the petitioner bought the property in 1880, at an auction sale, for $21,700, and that he spent $17,000 in repairs and in remodelling the house, which amount was wisely and judiciously expended; that in so doing he changed it from a dwelling-house to be occupied by one family to a house with separate suites of rooms on each floor, the same being made four stories in front and six in the rear, and adapted to first-class tenants.</p> <p>Phineas A. Stone, an expert in real estate, testified that for many years he had been acquainted with the property, and with that in the vicinity; that, a few days before the petitioner bought it, he carefully examined and estimated the value of the property in question as the agent of a third person. The petitioner asked him, and proposed to show by him, what, in his judgment and opinion, the property was fairly worth at the time of the sale to the petitioner. The respondent objected, and the judge excluded the evidence as incompetent, and the petitioner excepted, whereupon the respondent’s counsel said, “I will withdraw my objection. I don’t want an exception.” The petitioner’s counsel then said, “I will not take it as a favor, after a ruling that it is incompetent evidence.” The judge did not change his ruling that the evidence was incompetent, but said the evidence could be put in, as the respondent had withdrawn his objection; but the counsel for the petitioner then, and for the reason stated, declined to have the question answered. This occurred in the presence and hearing of the jury.</p> <p>The respondent called, as an expert in real estate, Thomas J. Whidden, one of the court-house commissioners, and he testified that as such commissioner he examined the petitioner's house after the work of taking it down had begun; that all the heating apparatus and plumbing had been taken out, as well as the chimney-pieces and portions of the partitions, the city having sold all but the brick and stone in the building; that he examined the building as to what had been done by the petitioner, and in reference to the amount of repairs that had been made; that he formed an opinion from what was left as to what there had been, so as to judge of the rest, but had not looked at the plans of the building. He was then asked this question: “What, in your opinion, would have been a fair cost for the repairs and alterations which you saw there ? ” The judge admitted the question, against the petitioner’s objection, and the witness answered, “ Ten thousand dollars was the sum I fixed as what it might cost to change it.” The petitioner excepted.</p> <p>Whidden was not asked by the respondent, and did not testify in chief as an expert as to the value of the estate, land, or buildings, except as above. He testified on cross-examination, that, in estimating whatsit would cost to do the work of remodelling and making the changes in the house, he arrived at a general estimate of their cost; that he thought it was his duty as a commissioner to estimate the damages, and he examined the property with that view, and made up his mind that the petitioner’s estate was worth $40,000. He was then asked whether he - did not subsequently form the opinion that it was worth $43,000, and was allowed to answer the question under objection: “Well, for the purpose of settlement, I don’t know but I did. I can’t remember.” Whidden, on further cross-examination, said that he estimated the value of the land and that of the building separately ; that he looked at an estate belonging to one Lamb, next adjoining the petitioner’s on the south, and thought it had not been remodelled or changed; that the house on that estate and the petitioner’s house were built at the same time; that he did not think the adjoining house any better than the petitioner’s house before the latter was remodelled ; that the petitioner’s house was worth the most; that the two lots were worth the same per foot, but he thought there were more feet in the petitioner’s estate ; and that he should consider there was an advantage in the location of the petitioner’s house over that adjoining, but “ not much, not a great deal, say $500.” 'He was then asked, also on cross-examination, this question: “ Did n’t you make up your mind that the Lamb estate was worth $43,000 ? ” The respondent objected, and counsel for the petitioner said he was testing the value of the witness’s opinion, and was not asking him about any offer. The judge said it was a matter of judicial discretion, and in the exercise of that discretion excluded it; and the petitioner excepted.</p> <p>The respondent, in introducing evidence of a sale on January 7, 1886, by public auction, of an estate on the southerly side of Ashburton Place, the third house from Somerset Street, and numbered 6 on Ashburton Place, offered to show that the estate consisted of a lot of land containing about fifteen hundred square feet, with a frontage of twenty-seven feet on Ashburton Place; that the front of the house on the lot was covered by mastic, and had twelve or fourteen rooms in it; that the house had been occupied as a dwelling-house, and was constructed for occupancy by one family; that the house, which was thirty or thirty-five years old, had not been remodelled, but was an excellent house, and in very good condition; and that the former owner, one Simpson, was a man of large means, and kept his house in fine order, with an elevator, and everything complete about it. The petitioner objected to the evidence as to what the Simpson house sold for, but the judge admitted it. The price paid for this property at the auction sale was then given as $26,500.</p> <p>The respondent, in introducing evidence of the sale by auction of another estate, on April 27,1888, on Ashburton Place, offered evidence that it was situated at the corner of Ashburton Place and Somerset Street, on the northerly side of Ashburton Place, there measuring twenty-eight feet and containing about nineteen hundred square feet, covered by a brick building four stories high, with forty-two rooms, fitted up and used as a hotel; that an arched carriageway led from Somerset Street, under the rear part of the building, to houses beyond. The petitioner objected to the admission of the above evidence, but the court admitted it, and the price obtained was stated to be $48,600. There was also evidence that the same estate was sold by public auction about two years before for $52,000 or $53,000, but the sale was not carried through because of an alleged defect in the title, and that the sale in question was of the same estate with the same title, and that the title was good, a warranty deed being given.</p> <p>The petitioner objected to the admission of the evidence of either of these auction sales, because, among other things, of the time and the dissimilarity in location and construction and character of the different lots, buildings, and estates, and on the facts. The judge ruled that it was entirely a matter of discretion with him, and admitted the evidence, saying the weight of it was entirely for the jury to determine; and the petitioner excepted.</p> <p>It appeared in evidence that the estate numbered 6 Ashburton Place was bid off by the agent of Benjamin F. Butler, a counsellor at law, to whom a conveyance of the estate was made. The petitioner then called Mr. Butler, who was admitted to be an expert in real estate, as a witness, and he testified that he employed the agent in question to bid off the property, fixing a maximum limit to be bid by him thereon. The petitioner then offered to show what was the limit thus fixed, up to which the agent was authorized by Mr. Butler to bid off the property, but the judge excluded the evidence. The petitioner’s counsel said he would state what this limit was which he expected to prove, if the judge would permit it; but the judge declined to allow him to do so, saying that he might state it in his bill of exceptions, which accordingly recited the limit to be $30,000.</p> <p>The petitioner contended that the evidence offered was competent as affecting the auction sale, and the price already admitted in evidence, and excepted to its exclusion.</p> <p>The petitioner also offered to show, that immediately after the auction sale, on the same afternoon, Mr. Butler was offered an advance of $5,000 on the price at which his agent had bid off the estate; but the respondent objected, and the judge excluded the evidence, and the petitioner excepted.</p> <p>The petitioner also asked Mr. Butler, and offered to show, as affecting the sale as evidence, what, in his judgment and opinion, the estate bought by him was fairly worth in the market at the time of the sale, and what it was fairly worth at the time of the taking of the petitioner’s land. The judge excluded the evidence, and the petitioner excepted.</p> <p>Mr. Butler testified on direct examination that he occupied a part of the building bought by him as a law office, and rented the rest; that he had occupied offices on Pemberton Square, the site of the court-house, for about seventeen years; and that he “ made this purchase in Ashburton Place in order to have a place to stop after the court-house was started.” On cross-examination, the witness, to the question, “ You bought this place on Ashburton Place for what purpose ? ” replied, “ I bought it for two purposes: one to occupy a portion of it as an office; and the other, to rent it as well as I could to help pay my rent.” To the further question, “ You bought it as an office because the court-house had been located in that vicinity ? ” the witness answered, “I could hardly say that; I bought it because I was wonted there; I had been there seventeen years,.— very near there.” On re-examination, the petitioner asked the witness, “ Was all the object you had when you bought it simply for an office ? ” The judge, upon the respondent’s objecting, stated that the witness had been originally examined on the subject, and excluded the question, but permitted the petitioner’s counsel to ask him, “ Have you any further answer to his [respondent’sJ question, as to the reason why you bought the property? ” The respondent’s counsel then said, “I did n’t ask the reason,” whereupon the petitioner’s counsel said that he had asked the witness, “What was his object in buying it?” and the respondent’s counsel then said, “ I asked him as to whether he was governed by one reason, — the fact of the city taking the court-house site ? ” This question was then put by plaintiff’s counsel: “Was that your only reason ? ”</p> <p>The judge ruled that the petitioner had no right to re-examine the witness, and would not permit it to be done; and the petitioner excepted.</p> <p>The witness was then permitted to make this explanation: “ I think it is fair to everybody to say, so far as that is concerned, that if the court-house had gone somewhere else I should have stayed in my old office, and should not have bought anything, — if that will help either side.”</p> <p>The jury returned a verdict for the petitioner for the sum of 145,243.07; and the petitioner, being dissatisfied therewith, alleged exceptions.</p>

<p>Contract against Alexander B. Pinkham and Cornelius A. Russell, doing business under the name of Pinkham and Russell, on two promissory notes, dated March 22, 1886, and April 28, 1886, payable to the order of the plaintiff sixty and ninety days after date respectively, and signed “ Pinkham and Russell.”</p> <p>At the trial in the Superior Court, without a jury, before Sherman, J., the plaintiff introduced the notes in evidence, and rested. The defendants thereupon introduced in evidence a written instrument, signed by the defendants and the plaintiff, and by Otis Eddy and others, which recited the transfer of all the property of the defendants, as party of the first part, to Eddy, as party of the second part, in trust, to dispose of the proceeds of the said property in the manner following, viz.:</p> <p>“ First. To pay all such debts as by the laws of the United States or of this Commonwealth are entitled to a preference in such cases, including claims of persons who have valid liens or other security.</p> <p>“ Second. To pay the costs and charges of these presents, and the expenses of executing the trusts declared in these presents.</p> <p>“ Third. To distribute and pay the remainder of the said proceeds to and among all the parties of the third part, ratably, in proportion to their respective debts; and if there should be any surplus after paying all the parties of the third part in full, then in trust.</p> <p>“ Fourth. To pay over such surplus to the party of the first part, his executors, administrators, or assigns.</p> <p>“ And the party of the first part hereby constitutes and appoints the party of the second part their attorney irrevocable, with power of substitution, authorizing him in the name of the party of the first part, or otherwise, as the case may require, to do any and all acts, matters, and things to carry into effect the true intent and meaning of these presents which the party of the first part might do if personally present. And the party of the second part, hereby accepting these trusts, covenants to and with each of the other parties hereto to execute the same faithfully. And the party of the first part hereby covenants with the said trustee, from time to time, and at all times when requested, to give him all the information in his power respecting the assigned property, and to execute and deliver all such instruments of further assurance as the party of the second part shall be advised by counsel learned in the law to be necessary.”</p> <p>The defendants then introduced evidence, that, at about the date of the above instrument, a meeting of their creditors was called, at which a statement of the financial condition of the firm of Pinkham and Russell, which was insolvent, was made; that they proposed by the above instrument to transfer and convey all their property to Eddy, in trust for the benefit of their creditors; that they did not wish to go into insolvency, but were willing to complete the execution of the instrument, and deliver all their property to the trustee, if the creditors would accept the same in full satisfaction and discharge of their debts; that the defendants’ counsel stated that by signing such instrument the creditors would discharge and release the defendants from their liability to them; that a question arose as to the amount and validity of certain liens on the' defendants’ property, and a committee was appointed to submit such question of the validity of these liens to a third person; that Eddy and a number of the creditors, including the plaintiff, then and there signed the instrument; that at an adjourned meeting of such creditors the committee reported that the liens were valid, and the clause “ including claims of persons having valid liens or other security ” was without objection inserted by interlineation in the instrument; that the plaintiff was present at both meetings, neither note having then matured; and that the defendants’ counsel stated at the adjourned meeting, that, if the above instrument was signed, it was a discharge of all claims, whatever dividend the estate might pay.</p> <p>There was evidence that the plaintiff had received ten per cent of the amount of his claim by a check of the trustee, dated August 4, 1886; but there was no evidence that the plaintiff made any statement in relation to such payment by the trustee, and the plaintiff denied that he ever heard the defendants’ counsel state, that, by signing the instrument, he- was to release the defendants from his claim; and he gave further evidence tending to prove that he had never released them, nor agreed so to do.</p> <p>The defendants asked the judge to rule: “ 1. that it could be shown by parol that the consideration for the assignment to Eddy was the discharge of the indebtedness of the various creditors, notwithstanding the consideration expressed in the deed; 2. that the absence of any covenants in the instrument, on the part of the creditors, created an ambiguity in the instrument, which could be explained by parol evidence; 3. that, by a proper construction of the deed, the plaintiff agreed to receive a pro rata share of his claim in payment or accord and satisfaction of the whole; 4. that by signing this instrument the plaintiff is estopped from denying that he assented to such discharge, settlement, and accord and satisfaction; 5. that the receipt by the plaintiff from the trustee of a percentage of his claim, a pro rata share, without comment or protest, was evidence of accord and satisfaction of the claim; 6. that, upon all the evidence in the case, judgment ought to be given for the defendants.”</p> <p>The judge declined so to rule, and ruled as follows: “It is competent for the defendants to prove, if they can, that the plaintiff, in consideration of the assignment to Eddy, agreed by parol to receive a pro rata share of his claim in payment or in accord and satisfaction of the whole, and the evidence of what was done and said at the meetings when he was present, and the circumstances under which he received a percentage of his claim, are all competent evidence bearing upon that question.”</p> <p>.The judge found as facts that the plaintiff by his conduct consented to the interlineation referred to in the assignment, and that the plaintiff did not agree by parol to release the defendants from the payment of his claim in full; and ruled that, as matter of law, the plaintiff had not released his claim in writing by signing the above instrument.</p> <p>The judge found for the plaintiff for the amount of the notes less the amount of the dividend received from Eddy; .and the defendants alleged exceptions.</p>

<p> Insolvent Debtoi--Assignment in Trust for Benefit of Creditors. </p> <p>An assignment by a corporation to a trustee, after reciting its inability "to pay its debts,” and its desire to convey its property for the benefit of its creditors without any preference, stipulated that such property should be distributed ratably among them with legal priorities; that the attachments of creditors party thereto should be dissolved, and that no such creditor should attach or levy an execution on its property; that no holder of any debt, upon which another was absolutely or contingently liable, should by signing it release such other person, or in any way impair his liability, but should reserve all rights and remedies against him, and “ the same may be as fully enforced as if these presents had not been executed.” Held, that the assignment did not operate to discharge the debts of the corporation, and was no bar to an action by a creditor, pending the carrying out of the assignment, as a preliminary to enforcing the statutory liability of its officers and stockholders.</p>

<p>Coupon Bond — Calling for Redemption — Collateral Agreement — Notice — Estoppel.</p> <p>Municipal bonds, each providing for the payment absolutely of a certain sum on a day named, with interest “ payable semiannually on presentation of the interest warrants hereto attached,” recited that they were issued under an order specified of the city council. The city treasurer, as instructed by the duly authorized committee of finance of the council, made with bankers an agreement to negotiate the bonds, which provided for calling annually a certain number of them by lot for redemption. A purchaser of such bonds, who had no knowledge of the agreement, or that by it they were subject to be called, sold them to a savings bank, and the bonds subsequently were called in for redemption, and payment refused of coupons maturing thereafter. Held, that the savings bank succeeded to an unimpeachable title from such purchaser, and, even if it had notice of the agreement, could enforce the bonds according to their tenor, and recover upon the interest warrants.</p>

<p>Bill in equity, filed April 13, 1886, by the trustee under the will of George W. Perry, against the husband and tbe blood relatives and heirs at law of Judith E. Perry, for instructions as to the disposition of the remainder of a gift to her for life. The case was heard' by W. Allen, J., who reported it for the consideration of the full court, in substance as follows.</p> <p>George W. Perry, of Malden in this Commonwealth, died on April 24, 1877, leaving a will, which was duly admitted to probate on May 26, 1877, and was, with the exception of parts merely formal, as follows:</p> <p>“ First. Unto my wife, Martha Jane Perry, my homestead estate where I now reside, situated on Florence Street in said Malden, to have and to hold the same to her and her heirs and assigns forever ; also unto my said wife all my household furniture and utensils, including all the chattels in my dwelling-house; also unto my said wife the sum of fifteen hundred dollars per annum, during her life. It is my will that the foregoing gifts to my wife shall be in full of all her interest in my estate and in lieu and bar of dower. It is also my will that if any of the above named property should remain undisposed of by my wife at her decease, the same shall descend and belong to my heirs at law.</p> <p>“ Second. Unto my mother, Abigail Perry, the sum of six hundred dollars per annum, during her life.</p> <p>“ Third. Unto my sister, Eliza Bates, my lot of land and the buildings thereon situated in Keene in the county of Cheshire and State of New Hampshire, to have and to hold the same to her and her heirs and assigns forever.</p> <p>“Fourth. Unto Judith Perry, the wife of my brother, Benjamin F. Perry, the sum of five hundred dollars.</p> <p>“ Fifth. All the remainder and residue of my estate, real, personal, and mixed, of which I may die seised or possessed, or to which I may be entitled at the time of my decease, shall be divided into four equal parts, which I give, devise, and bequeath as follows, to wit: one of said parts to my brother, Benjamin F. Perry, to have and to hold the same to him during his life, and at his decease to his heirs at law and their heirs and assigns forever; another of said parts unto Judith Perry, the wife of said Benjamin F. Perry, to have and to hold the same to her during her life, and at her decease to her heirs at law and their heirs and assigns forever; the remaining two parts to my niece, Sarah Jane Harvey, to have and to hold the same to her during her life, and at her decease to her heirs at law and their heirs and assigns forever.</p> <p>“ Sixth. I nominate and appoint my wife, Martha Jane Perry, to be the executrix of this my last will and testament, and I direct that she shall not be required to furnish any sureties on her probate bond.”</p> <p>The only question was who were entitled to that portion of the estate given for life to Judith Perry, under the fifth clause of the will.</p> <p>The testator was domiciled in Malden when the will was executed, and thenceforth until he died. He was born in Keene, New Hampshire, where he resided in his youth, and where his mother, Abigail Perry, and his sister, Eliza Bates, resided at the time of the execution of the will, and in which place the testator at the time of the execution of the will owned two pieces of real estate, which he retained and owned at his death, one of which he devised to his sister Eliza, and the other fell into the residue of his estate. Abigail Perry died before the testator, at Troy, where she had lived for several years in the family of Benjamin F. and his wife, Judith E. Perry, who was the person called Judith Perry in the will. On December 23, 1879, the plaintiff was duly appointed trustee under the will to administer the trusts created thereby other than those relating to the real estate in New Hampshire, which trusts related to personal property, amounting to about $35,000.</p> <p>In 1881 the plaintiff was also duly appointed trustee under the will in New Hampshire, and upon due proceedings had sold the real estate there situated, which consisted of a wood lot, and could not advantageously be divided, and held the proceeds, amounting to about $3,000, in his hands undisposed of.</p> <p>No part of the personal property in this Commonwealth has ever been invested in real estate; and ever since the sale of the real estate in New Hampshire the whole property of the gift under the fifth clause of the will has been personal property.</p> <p>During the life of the testator’s widow, the plaintiff as such trustee duly paid to her from the income of the property not devised absolutely the sum of $1500 per annum, paying the remainder as provided in the will; and after the death of the widow the entire income of such property to those entitled to it under the will, including Judith E. Perry so long as she lived.</p> <p>Judith E. died at Troy, in the State of New Hampshire, on January 24, 1884, where she and her husband had been domiciled and lived together as husband and wife for over thirty years immediately preceding her death.</p> <p>Judith E., who never had a child, left surviving her Benjamin F., her husband, a brother and a sister, and the issue of deceased brothers and of a sister. She also left a will, which was duly admitted to probate, by which she gave all her property, consisting only of personalty, to her husband, the provisions of which will he did not waive.</p> <p>Benjamin F. Perry, who died after the filing of the bill, never had a child, and his heirs at law, who were made parties defendant, consisted of brothers, sisters, a nephew, and a niece.</p> <p>William S. Stearns, counsellor at law of forty years’ practice in the courts of this Commonwealth, called by the blood relatives of Judith E., testified, under objection, that the testator was his client, and that the will was drawn up by him or under his direction, after a consultation with the testator as to what persons he desired should take or have the remainder of the property of which Judith E. had the life interest; that the testator told him, at the time of the execution of the will, that he wished such remainder to go to Judith’s blood relatives, and not to her husband; that the witness then instructed the testator that the term “ heirs at law,” as applied to Judith E. in the fifth clause, would give such l'emainder to her blood relatives in distinction from her husband, and that he wrote the term “heirs at law” in such clause to carry out the intention of the testator that it should go to her blood relatives. The judge found the facts to be in accordance with such testimony, and reserved the question of the competency of the testimony, of any part of it, for the full court.</p> <p>The General Statutes of New Hampshire of 1878, c. 193, § 5, c. 202, § 16, and c. 203, §§ 1, 6, and the cases decided by the Supreme Court of that State, of Richardson v. Martin, 55 N. H. 45, and Wilkins v. Ordway, 59 N. H. 378, were introduced in evidence.</p> <p>The case was argued at the bar in November, 1888, and afterwards was submitted on the briefs to all the judges.</p>

Three appeals by Frederick W. G. May, guardian and executor of the will of Frederick May, an insane person, from decrees of the Probate Court disallowing certain items of his accounts. The appellees, Sarah E. Skinner and Kate L. White, were legatees under the will. The cases were separately referred to the same master, whose several reports, so far as material, were as follows.

<p>Bill in equity, filed July 3, by the plaintiff, to charge the Rockport Granite Company and the Cape Ann Granite Company, as partners with or equitable sureties of Clapp and Ballou, upon contracts under seal -between the two last and the plaintiff.</p> <p>The defendants demurred to the bill, on the ground that the plaintiff had a plain, complete, and adequate remedy at law, for want of equity, because of laches, for misjoinder of parties defendant, and for multifariousness.</p> <p>W. Allen, J., sustained the demurrer, and reserved the case for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Two ACTION'S, the first an action of contract for the breach of a written agreement, and the second an action of tort for slander. The cases were tried together in the Superior Court, before Mason, J., who ruled that the actions upon the. facts in evidence could not be maintained, and directed a verdict, in each case for the defendant; and the plaintiffs alleged exceptions; The material facts appear in the opinion.</p>

<p>Tort to recover damages trom the judges of the Court of Commissioners of Alabama Claims for prohibiting the plaintiff from practising as an attorney in that court. The defendant French, upon whom only service was made, alone defended. Trial in the Superior Court, without a jury, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The following facts appeared in evidence. The Court of Commissioners of Alabama Claims was established by the act of Congress of June 23, 1874, c. 459, re-established by the act of June 5, 1882, c. 195, and continued by the act of June 3, 1884, c. 62. The defendant French was commissioned and qualified as a judge on or about July 5, 1882; the defendant Harlan was also commissioned at or about July 5, 1882, and the defendant Draper not until 1885. The court in 1874 adopted, among other rules, the following: “ Rule V. Any person of good moral character admitted to practise as attorney or counsel in the Supreme Court of any State, or Territory, or the District of Columbia, or in any of the federal courts, on filing with the clerk a written statement of the date and place of such admission, with his name and post-office address in full, may, on motion, be admitted to practise in this court ”; and in 1882, among additional rules, the following: “Rule XIY. All attorneys admitted to practise in the Court of Commissioners of Alabama Claims, as created under the law of Congress approved June 23, A. D. 1874, will be recognized as attorneys in this court, re-established under the law of Congress, approved June 5, 1882.”</p> <p>The plaintiff, who was an attorney and counsellor at law, duly admitted to practise in the Supreme Court of the United States, in the Court of Claims of the United States, and in all the courts of this Commonwealth, was in 1875, on motion, admitted to practise as an attorney and counsellor before the Court of Commissioners of Alabama Claims, and prosecuted before that court many of such claims, and became entitled to receive from the claimants many thousands of dollars.</p> <p>A copy of the “ record of proceedings In re Jerome F. Manning,” in the Court of Commissioners, duly attested, was put in evidence, and recited among other things the following.</p> <p>On July 24, 1885, the court, consisting of the Hon. James Harlan, Presiding Judge, and the Hon. Asa French and the Hon. A. S. Draper, Associate Judges, passed the following order:</p> <p>“ Ordered, That because of flagrant unprofessional conduct on the part of Jerome F. Manning, an enrolled attorney and counsellor at law on the records of this court, he, being uninvited and refused admittance to its consultation room, July 23, 1885, then occupied by the court sitting in chambers engaged in the transaction of its official duties, nevertheless forced his way into said room, and interrupted the court in the prosecution of its official work by unseemly threats, then and there uttered against one of the judges thereof because of an official opinion delivered from the bench in open court by said judge as the organ of the court in the announcement of a decision in a case pending before it; therefore, for the purpose of preventing the occurrence of like attempted intimidations in future on the part of said Manning, and preserving the freedom of the court in the discharge of its judicial duties, the said Jerome F. Manning is hereby commanded to appear before this court, Saturday, July 25, 1885, at ten o’clock A. M., and show cause, if any there be, why his name shall not be stricken from the rolls of attorneys and counsellors at law authorized to practise before this court. The clerk of this court is hereby directed to give notice hereof to the said Manning, by causing an attested copy of this order to be served personally on him forthwith.”</p> <p>On July 25, 1885, after the clerk, by direction of the court, had read the above order in open court, Manning made a statement, disclaiming any intention of interrupting or insulting the court, and asked for a postponement of the hearing until July 27, 1885 ; but the court consented to postpone the hearing only until four o’clock P. M. of the same day, at which hour Manning appeared with counsel, who filed and read affidavits and addressed the court in defence of Manning; and the court thereupon held the matter for advisement.</p> <p>The court, on July 29, 1885, after a statement signed by all three of the judges, which set forth in detail the conduct of the plaintiff as outlined in the above order of July 24, and the circumstances attending his interruption of the court while in consultation, together with the reasons guiding the court in its action, made the following decree: “ Ordered, that for the reasons set forth in the rule to show cause, and in the statement accompanying this decree and made a part thereof, the said Jerome F. Manning be, and he hereby is, prohibited from appearing and acting in this court in relation to any matter or business therein pending, and from exercising in any way the functions of an attorney and counsellor of this court. This decree to stand until further order of the court.”</p> <p>On the same day the court also made the following order: “ Ordered, that the clerk of the court is hereby authorized to substitute the name of any attorney of this court in place of said Jerome F. Manning in any case, upon the receipt of the request in writing from the claimant therein, or from his legal representatives, to that effect.”</p> <p>Subsequently, on October 15, 1885, the court declined to entertain a motion made on behalf of Manning to rescind the order of disbarment of July 29, 1885, and stated the conditions under which only it would grant such a motion.</p> <p>The defendant French admitted that he concurred with the other members of the court in issuing and enforcing the orders of July 24 and 29, and that the plaintiff was thereby damaged, and contended that the Court of Commissioners of Alabama Claims had authority to issue and enforce the same, and that any loss sustained by the plaintiff thereby was damnum absque injuria.</p> <p>The plaintiff introduced evidence tending to show that each of the allegations in his declai’ation was true; contended that Rules V. and XIV. were unauthorized and of no effect, and that the said Court of Commissioners had no power to create a bar, or to admit attorneys thereto, or to expel them therefrom; and asked the judge to make the following rulings:</p> <p>“1. That the Court of Commissioners of Alabama Claims had no authority to make the order made by them touching the plaintiff, on July 29, 1885, and that the same was unlawful.</p> <p>“ 2. That the defendant French, having admitted that he concurred with the other defendants in issuing and enforcing said order of July 29, 1885, and that the plaintiff was thereby injured, the plaintiff is entitled to recover from said French compensation for all losses sustained by him as the direct result of said order of July 29, 1885, and of the enforcement thereof from thence to December 31, 1885.</p> <p>“ 3. That more than two years having elapsed after the reorganization of the Court of Commissioners of Alabama Claims, under the act of June 5, 1882, and after the appointment of the defendant French and the other defendants, but prior to July 24, 1885, the said French and the other defendants had, on said last mentioned day and thereafter, no lawful authority to act as judges of said Court of Commissioners of Alabama Claims.”</p> <p>The judge declined so to rule, found the facts to be as stated in the copy of the record of the court, and ruled that the action could not be maintained; and found for the defendant. The plaintiff alleged exceptions.</p>

<p>Will—Codicil — Trust — Equitable Lien — Statute of Limitations.</p> <p>A testator, after bequeathing all bis estate, consisting of personalty, to his wife absolutely, revoked by a codicil “ so much of said legacy as gives to my said wife, N., my property forever, she to hold said property during her life. I give and bequeath, at her decease, the said property to J. and her son, H., for their use and behoof forever.” Held, that the wife took a life estate, and J. and her son the remainder.</p> <p>An equitable lien in real estate, purchased in the name of such testator’s wife, and partly paid for with the funds of the estate, was held to be rightly established to the extent of such payment in favor of J., who had succeeded to her son’s interest, upon a bill in equity to establish such a lien brought by her after the wife’s death, and more than six years after the purchase; and the statute of limitations is no bar to such a bill.</p>

<p>Libel—Privileged Communication — Evidence — Malice.</p> <p>A letter written by a creditor to his debtor’s husband, a rich man, informing him of her bad conduct before their marriage, for the purpose of compelling him or her to pay an antenuptial debt, which after her marriage she refused to pay under circumstances showing ingratitude on her part, is not a privileged communication.</p> <p>Ih an action for libel brought by such debtor against her creditor, the latter admitted writing and sending the letter, and set up in defence the truth of its subject matter. At the trial, letters of the same general tenor as the letter in question, written by the creditor to her after her marriage, were admitted as showing malice, while they also tended to contradict his testimony; and a letter written by him to her before the marriage, which also tended to show malice, was admitted as contradicting his testimony. Held, that these letters were properly admitted in evidence.</p>

<p>Tout for negligently exposing a water pipe connected with the plaintiff’s greenhouse, while the defendant by its servants and agents was constructing a sewer in Minot Street, on December 2, 3, 1886, so that the water in the pipe froze, thus depriving the plaintiff of water for steam-heating in such greenhouse, and for use on his plants, whereby such plants were injured. Trial in the Superior Court, before Ldthrop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff’s evidence tended to show that the sewer was being constructed by one Gill, under a contract with the defendant, and that one Sheehan, by virtue of an appointment from the superintendent of sewers of the defendant city, acted as an inspector of Gill’s work; that the plaintiff owned a greenhouse on Minot Street, and was a taker of Cochituate water from the city, and that the city water pipes which carried water to him ran through that street; that on Thursday, December 2, 1886, the weather was cold, the temperature being nearly at zero ; that between eight and nine o’clock in the evening, the plaintiff discovered that the water had ceased to run in his greenhouse; and that he then went to the sewer trench and found the water pipe connected with the greenhouse exposed, and the trench open nearly fifty feet on either side of it. The plaintiff testified that the next morning he went again to the trench and notified the engineer that the pipe was frozen, and that he had no water in his greenhouse; and that he then spoke to Sheehan and Gill, who were standing near the trench, of the condition of the pipe, and the probable injury that would result to his property if it were not at once thawed out and protected; that, the pipe not having been thawed out, the plaintiff, on the Saturday morning following, went to the City Hall and notified the superintendent of sewers of its condition, and he directed that Gill be ordered to thaw out the pipe at once and protect it; that when the plaintiff went to the City Hall the flowers were considerably damaged; and that the pipe was not thawed out until the Wednesday following, by which time the flowers were all ruined, with the exception of a few violets. The plaintiff further testified that when he notified Gill and Sheehan that the pipe was frozen the flowers were not injured; that they agreed to attend to the pipe at once, and that he believed that they would do so; and that it was impossible for him to obtain water and convey it to his greenhouse and protect his property.</p> <p>The defendant asked the judge to instruct the jury that the plaintiff could not recover for the following reasons:</p> <p>“1. Because the work of constructing the sewer was the work of public officers, and not of the agents of the city in its corporate capacity.</p> <p>“ 2. That the damages were too remote, the water pipe being the water pipe of the city, and the water which was frozen being the water of the city.</p> <p>“ 3. That the plaintiff’s remedy, if any, was not for negligence in constructing the sewer, but for breach of contract in not supnplying him with water.”</p> <p>The judge declined to give the instructions requested, but instructed the jury in substance as follows:</p> <p>“ The negligence alleged is in the not covering the pipe, or wrapping it so that it would not freeze; and, secondly, in not remedying the defect when there was ample time to remedy it before the plants were injured. . . . Now, gentlemen, if you believe the plaintiff’s story on that point, as to the notice he gave, and as to the delay, you would be justified in finding that there was negligence and carelessness on the part of the agents of the city, and that the plaintiff would be entitled to recover, unless he was guilty of negligence, as I shall presently state to you. If, on the other hand, you believe the testimony of the defendant, that this thing was remedied the moment it was called to the attention of the city, then your verdict will be for the defendant; because, if the plaintiff, after knowing that this injury occurred, did not see fit to call the attention of anybody to it, and have it remedied, that would be evidence of such negligence on his part as would authorize you in finding a verdict for the defendant that he was guilty of carelessness. . . . The defendant says that the plaintiff was guilty of negligence in not remedying this trouble, in not getting'water from some1 where to water his plants and start up his boiler. Well, gentlemen, he has stated to you what efforts he made in that direction, and I instruct you that if he, by the exercise of due diligence, might have got water, then he would not be entitled to recover for the loss of his plants; because, if he could have remedied this trouble, and did not do so through his own lack of diligence, he cannot say that this, large loss which was sustained was due entirely to the negligence of the city. . . . But if he exercised, — and that is a question of fact for you to determine, — if he exercised all due diligence, then the question comes whether or not the injury to the plants was too remote to be recovered in this action. Now upon that point there is testimony here that the agents of the city knew that that water pipe connected the greenhouse of the plaintiff with the main. There is no evidence that they knew it was necessary for the life of the plants that water should be used, but you will be authorized to find that they must have known that, from the general knowledge which everybody possesses as to the need of plants for water. If, therefore, the agents of the defendant knew that the water was cut off by freezing of the pipe, and knew that the water was necessary for the life of the plants, and the plaintiff has testified here that he told them everything would be destroyed unless they did do something, and they carelessly and negligently suffered the water to remain cut off for several days, and in consequence of that the plants were destroyed, then it does not seem to me that the damage is too remote for you to consider, but that the plaintiff is entitled to recover, if he used all due diligence in preventing it, under the principles of law which I have previously stated to you.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract, with a count in tort alleged to be for the same cause of action, for the breach of an agreement of sale. Writ dated August 23, 1887. Trial in the Superior Court, without a jury, before Barker, J., who reported the case for the determination of this court, in substance as follows.</p> <p>On June 8, 1887, the defendant, a dealer in metals in Boston, doing business under the name of I. L. Pratt and Company, sent a telegram to the plaintiff, a dealer in Cleveland, Ohio, in scrap metals, doing business under the name of A. S. Deutsch and Company, with whom he had had previous dealings. This telegram was dated at Boston, addressed to the plaintiff at Cleveland, and read, 44 Can you use six tons car boxes free of Babbitt, eight one eighth, Boston. Terms as before. Wire answer.” On the same day the defendant mailed from Boston to the plaintiff at Cleveland the following letterBoston, Mass., June 8th, 1887. Messrs. A. S. Deutsch & Co., Cleveland, Ohio: Dear Sirs, — We wired you to-day the following: 4 Can you use six tons car boxes free of Babbitt, eight one eighth, Boston. Terms as before. Wire answer.’ They are a good lot, and should like to ship them to you if not sold upon receipt of your early reply. We are, very truly, I. L. Pratt & Co.”</p> <p>The plaintiff received the telegram at Cleveland on June 8, and on the same day telegraphed to the defendant in reply, 44 Seven three quarters best can do. Wire if accepted.” This telegram was received at Boston on the same day by the defendant, who made no reply to it. On June 9, the plaintiff received the defendant’s letter of the day before, and thereupon sent to the defendant a second telegram, as follows: “Will pay you eight cents for brass boxes. Wire if accepted.” To this the defendant immediately telegraphed an answer as follows: “ Your offer accepted. Will ship what we have.”</p> <p>Upon the receipt of this telegram the plaintiff on the same day mailed a letter to the defendant stating: “We wired you this A. M. as follows: ‘ Will pay you eight cents for brass boxes. Wire if accepted,’ to which we received your answer saying: ‘ Your offer accepted. Will ship what we have.’ Please ship as soon as possible, and bill them at the R. R. Co. as scrap zinc, to insure a low i-ate of freight.”</p> <p>Upon receipt of this letter the defendant shipped to Cleveland by railroad 12,953 pounds of brass car boxes, consigned to the defendant’s order, the price of which at eight cents per pound, was §1,036.24, annexing to the bill of lading his draft on the plaintiff for that amount. Before the boxes arrived at Cleveland, this draft was accepted and' paid by the plaintiff, who thereupon resold them in Cleveland to a brass founder, at nine cents per pound. In making the purchase, the plaintiff relied on the defendant’s telegram and letter of June 8, and resold the boxes on the representations made in the letter.</p> <p>Upon the arrival of the boxes, the brass founder found them to be of a quality inferior to that which he had expected, declined to accept them, and returned them to the plaintiff, who thereupon, on June 24, wrote to defendant as follows: “We find the lot of brass boxes you sent us to be the worst lot we have ever handled, and look as if they were the refuse of some brass foundry. We had sold them on the representation you made us in yours of the 8th instant, and we are obliged to take them back solely on account of the poor quality.” The defendant, however, claimed it was a good lot of boxes, and refused to take them back or make any allowance.</p> <p>The plaintiff claimed to recover of the defendant three cents per pound, or §388.59, which was the difference in value at Cleveland, at the time of his purchase, between such boxes as he understood he was purchasing and those which he received.</p> <p>The plaintiff understood from the defendant’s telegram and letter of June 8 that he was purchasing car boxes made of red brass, which form the best quality of car boxes for railroad cars, and are made to be used and are used without a lining of Babbitt metal and so are “ free of Babbitt,” and necessarily constitute a “good lot” of car boxes; and this was the understanding of the term “ car boxes ” in the metal trade at Cleveland, but the defendant was ignorant of that fact. The defendant — in common with other dealers in the metal trade at Boston, where the terms “ car boxes,” and “ brass car boxes,” and “ a good lot of car boxes free of Babbitt ” did not have a uniform meaning—understood the term “car boxes free of Babbitt ” to include boxes made of yellow brass designed to be used with a lining of Babbitt metal, but which had not been so lined, or from which the lining had been removed, and the term “ brass boxes ” to include any brass car boxes, with or without a lining of Babbitt metal; but the plaintiff did not know in what sense the terms were used in the trade at Boston.</p> <p>Of the 12,958 pounds of car boxes shipped to Cleveland 6,000 pounds were yellow brass boxes designed to be used with a lining of Babbitt metal, but never finished, lined, or used on cars, being cast by a mistake from the wrong pattern; of the remaining 6„953 pounds, 6,473 pounds were yellow brass car boxes designed to be used with a lining of Babbitt metal, and which had been so used, but from some of which the lining had not been removed. The defendant bought these 12,473 pounds from a brass founder in one lot, and the remaining 480 pounds were a miscellaneous lot which he had in stock on June 9, some of red brass without a lining of Babbitt metal, and some of yellow brass with such lining. In the whole lot of 12,953 pounds there were 848 pounds of boxes from which the Babbitt metal had not been removed. The fair market value at Boston on June 9 of car boxes of yellow brass with a lining of Babbitt metal in them was five cents per pound.</p> <p>The defendant supposed that the lot of 12,473 pounds was free from Babbitt metal, but knew that the miscellaneous lot of 480 pounds was in part composed of boxes so lined. In preparing his-telegram and letter of June 8, he had in mind only the larger lot which he was then about purchasing, and the sending of the smaller lot as well to the plaintiff was an afterthought ; but he understood that boxes lined with Babbitt metal were a good delivery under the plaintiffs telegram of J une % offering to pay “ eight cents for brass boxes.” He had no intern, tion to cheat the plaintiff in any part of the transaction, and none of the statements in his communications to the plaintiff were intentional misi'epresentations.</p> <p>All of the boxes were brass car boxes of good quality of their respective kinds, but owing to the presence of the lined boxes the whole lot shipped was not “a good lot,” or “free from Babbitt.”</p> <p>The fair market value of the whole lot in Boston on June 9, was seven cents per pound, or $129.53 less than the price paid by the plaintiff. The 848 pounds of boxes lined with Babbitt metal were worth in Boston $25.44 less than the price paid for them in the lot by the plaintiff.</p> <p>The judge ruled that the sale was made at- Boston; that the language used by the parties.in making it was to be construed in accordance with its meaning in the trade in Boston; that upon the facts before recited the plaintiff was entitled to recover in the action; and that the measure of his damages was the difference on June 9, at Boston, between the value of the whole lot of boxes actually shipped and that of an equal quantity of a good lot of miscellaneous brass car boxes free from Babbitt metal; and found for the plaintiff in the sum of $129.53.</p> <p>If the rulings and finding were eorr'ect, judgment was to be entered thereon ; otherwise, such judgment was to be entered as law and justice might require.</p>

<p>Written A greement — Independent Stipulations — Former Verdict — Res Judicata — Estoppel.</p> <p>An agreement in writing between a machinist and a firm provided that the former should make for the latter one hundred machines in good workmanlike manner, at specified prices, according to certain drawings and specifications, and that the firm, within ninety days after the delivery of the machines, should make a new contract with him, to be mutually satisfactory, for not less than one hundred machines more, failing to do which the firm was to take and pay for such speeial'tools specified in the contract that the machinist might make or purchase for building the first machines as remained in serviceable condition. After the first machines were delivered and paid for, the firm brought an action to recover damages for defects therein, and subsequently, after the firm’s refusal to make a new contract or to pay for the tools, the machinist brought an action against it to recover for the value of the tools. Held, that the stipulations of the parties were independent, and that the recovery by the firm in the first action was not a bar to the second action. Held, also, that it was immaterial that the tools were merely supplementary to the ordinary tools of a machine-shop, and were such that with them alone the firm could not construct such machines.</p> <p>For the purpose of making such machines, the machinist bought certain tools other than those specified in the contract, biit necessary for the work. Held, that he could not recover from the firm the value of those tools, although they were useless to him, and were of use only for the purpose of building the firm’s machines.</p> <p>In the first action, the firm, in addition to damages for such defects, sought in another count to recover payments, of which it put in evidence, made by it to the machinist on an open account between them for extra work, but the verdict in that action, although a general one, was alone entered upon the count for such damages; and in the second action, the machinist, in addition to the value of such tools, sought to recover the balance of such open account after deducting such payments. Held, that the machinist was not estopped from recovering such balance, as well as the value of such tools.</p>

<p>Personal Injuries — Child — Due Care.</p> <p>A girl seven years of age, in crossing a city street in the daytime, was run over by a heavy wagon and injured. At the trial of an action to recover for such injuries, there was evidence that the plaintiff, a child of ordinary intelligence, lived on the southwest corner of B. Street, a much travelled highway seventy feet wide, and W. Street; that she had been sent by her mother to find her younger brother, and just afterwards was struck and run over in the easterly gutter of B. Street, a few feet north of W. Street; and that the driver of the wagon was racing his horses at the time, and crossed W. Street on the run; and ' further evidence justifying the inference that she found her brother in the yard of the house on the northeast corner, and was taking him home when' struck. The jury took a view of the locality. Held, that there was evidence for the jury on the questions whether the plaintiff exercised due care in attempting to cross the street, and in avoiding being run over while so doing.</p>

<p>Petition, under the Pub. Sts. c. 186, § 17, for leave to file an information in the nature of a quo warranto, and to restrain the respondent from doing business under the name of the Boston Rubber Company.</p> <p>The petition, as amended, alleged that the petitioner, which was organized under the name of the Malden Manufacturing Company, was in 1855, by special statute, authorized to take the name of the “ Boston Rubber Shoe Company,” whereupon it assumed and had since borne that name; that in 1878 the respondent was organized under the general laws of the Commonwealth then in force relating to business corporations, and obtained a certificate of incorporation, dated August 29, 1878, from the Secretary of the Commonwealth, in the form prescribed by the St. of 1870, c. 224, § 11, which certificate recited that persons named had associated themselves with the intention of forming a corporation under the name of the “Boston Rubber Company, for the purpose of manufacturing and selling articles consisting wholly or in part of india-rubber, or of its compounds, or of similar elastic or vulcanizable substances, and to further deal in all kinds of rubber goods, buying and selling, or receiving the same on commission or consignment, with a capital of forty thousand dollars, and have complied with the provisions of the statutes of this Commonwealth in such case made and provided, as appears from the certificate of the president, treasurer, and directors of said corporation, duly approved by the commissioner of corporations, and recorded in this office”; and certified that the persons named, “their associates and successors, are legally organized and established as, and are hereby made, an existing corporation under the name of the Boston Rubber Company, with the powers, rights, and privileges, and subject to the limitations, duties, and restrictions, which by law appertain thereto”; and that the respondent thereupon assumed and had ever since borne the name of Boston Rubber Company, in violation of the St. of 1870, c. 224, § 8, that name being the name of the petitioner, a previously existing corporation, and in use by it.</p> <p>The petition further alleged, that the petitioner had done a large business in the manufacture and sale of rubber boots and shoes, and that this had been practically its sole business for the last twenty years; that now and for the past thirty years it had been extensively known to the rubber boot and shoe trade throughout the country, as well as by consumers, as the “ Boston Rubber Company,” and that it was constantly receiving letters, orders, checks, etc., addressed to it by that name; that the respondent since its organization bad been engaged in the business of manufacturing and selling articles made from india-rubber other than boots and shoes; that the respondent, however, had recently begun to make preparations for engaging in the business of making and selling rubber boots and shoes, in addition to its other business, in which proposed business the respondent intended to use the name “ Boston Rubber Company,” by putting it on the printed matter used by it and by stamping it on the hoots and shoes to he manufactured by it; that hitherto letters and orders intended for the petitioner, and addressed as above recited, had frequently been first received by the respondent and opened by it, and, upon discovery of the fact that they were intended for the petitioner, had been remailed or forwarded by the respondent to it; that hitherto such confusion of letters, orders, etc. had not been of vital importance to the petitioner, because of the difference in the business of the two corporations, and the petitioner had merely remonstrated with the respondent for using a similar name, without actively opposing such use ; that, however, if the respondent should enter into the same line of business as the petitioner, to wit, the making of rubber boots and shoes, as it threatened to do, this confusion of letters, orders, etc. would be of vital importance to the petitioner and to the public; and that the use of the name Boston Rubber Company by the respondent was the exercise of a franchise or privilege not conferred by law, by the exercise of which not only would confusion as to the identity of the petitioner and the respondent be created in the minds of the public, who would be misled and deceived thereby, but also the business of the petitioner would be injuriously affected, and its private right and interest injured and put in hazard.</p> <p>The prayer of the petition was, that the petitioner be granted leave to file an information in the nature of a quo warranto against the respondent, to cause it to answer to this court by what warrant it bore the name Boston Rubber Company; and for an injunction. The respondent demurred to the petition, as setting forth “ no ground upon which the relief prayed for can or ought to be given by the court.” Hearing on the petition and the demurrer, before JDevens, J., who reserved the case for the consideration of the full court.</p>

<p>Boston — Removal of Subordinate Employee “ for Cause.”</p> <p>Under the St. of 1885, c. 266, § 5, providing that officers and hoards of the city of Boston may remove their subordinates “ for such cause as they may deem sufficient and shall assign in their order for removal,” such a subordinate may summarily be removed by them, without a hearing, upon assigning the cause thereof in the order of removal.</p> <p>A subordinate employed on the East Boston ferries was discharged by the superintendent, and the board of directors subsequently passed an order reciting that “ a communication from the superintendent was received that he had discharged ” such person “ for intoxication while on duty; on motion, the action of the superintendent was approved.” Held, that there was a sufficient order for the removal of such subordinate.</p>

<p>Promissory Note — Fraud — Knowledge.</p> <p>The pledgee of shares of stock as collateral security for the performance of a guaranty, having reason to suspect that the certificate had been fraudulently raised by the pledgor, asked him for further security, and received as such his promissory note before its maturity and bearing another’s indorsement. Held, that, if the pledgee took the note in good faith, and without any knowledge that the indorsement was obtained by the pledgor through a fraudulent suppression of the truth as to the certificate, a failure on his part to make inquiries would not preclude him from recovering on the note.</p>

<p>Personal Injuries — Unguarded Elevator Well near Street.</p> <p>An elevator well, in a building bounding on a city street, communicated directly with the sidewalk through an opening five or six feet wide and about ten feet high in the front wall. The sill of this opening was a stone eighteen inches wide, which did not project beyond the wall, and was raised about three inches above the' level of the sidewalk. While the elevator was being used in hoisting goods unloaded from a wagon standing in the street, the horse attached to the wagon backed it upon the sidewalk, causing travellers thereon to jostle and push one of their number through this opening, then unguarded, into the well, occasioning him injuries. Held, that the' occupier of the building was not liable for such injuries.</p> <p>The St. of 1885, c. 374, § 108, providing for the guarding of elevator openings in the floors of any building in Boston, in which there was an elevator not running in a shaft, was held not to apply to elevator openings through the wall of such a building into a street.</p>

<p>Conversion — Warehouseman — Delivery to Officer for Attachment.</p> <p>A warehouseman, who unlocks the door of a compartment in his warehouse upon the demand of an officer with a writ of attachment, and exposes another’s goods stored therein, which are thereupon attached by the officer, is not liable for a conversion of the goods.</p>

<p>Beneficiary Association —Classification of Risks — “ Spare Conductor ” — Extrinsic Evidence.</p> <p>A certificate of membership in a beneficiary association described the assured, who was killed while acting as a railroad brakeman, as a "spare conductor,” and provided that, if he should be injured while engaged in an occupation more hazardous than his regular employment, the indemnity to be paid in case of death should be that fixed for the more hazardous employment. The association classified the employment of brakeman as more hazardous than that of conductor, and fixed an indemnity for each, but did not classify or fix an indemnity for that of “spare conductor.” Held, that the beneficiary under the certificate was only entitled to the indemnity allotted a brakeman.</p> <p>Evidence that the duties of a spare conductor included those of a brakeman as well as of a conductor was held, in an action upon such certificate, to be improperly admitted.</p>

Contract to recover the price of printing five hundred thousand advertising cards for the defendants. Trial in the Superior Court, without a jury, before Lathrop, J., who found for the plaintiff, and reported the case for the determination of this co.urt, in substance as follows. The plaintiff is a New York corporation doing business in the city of New York. The defendants are copartners, doing business in Boston under the firm name of Chase and Sanborn.

Contract on an account annexed. One item of the account was as follows: “ Sept. 15.

<p>Bill in equity, filed J une 15,1888, for the removal of a sidewalk in Andrew Place in Boston. Hearing before Devens, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>On July 24, 1868, the city of Boston was the owner of a tract of land between Canton Street, now called East Canton Street, and Dedham Street, now called East Dedham Street, and on that day the committee on public lands of the city council, whose powers and duties were derived from a city ordinance relating to the public lands dated May 3, 1864,* voted “that a passageway sixteen feet in width be laid out between Canton and Dedham Streets, so as to make the lots ninety-two feet in depth.” This action of the committee was approved by the mayor, but there was no evidence that it was ever approved by the board of aldermen. This passageway was afterwards laid out of the requisite width, and was called Andrew Place, and the city posted and maintained at each end of it the following notice: “ This is a private way. Dangerous passing.”</p> <p>The plaintiff was the owner of land fronting on East Dedham Street and the defendant of land on East Canton Street, both deriving title from the city of Boston by deeds describing the premises granted to each as bounded in the rear “ by a passageway sixteen feet wide,” which was Andrew Place. The plaintiff, who was a teamster and owned various carts and wagons, including caravans so called, bought his land in 1874, and built on it a stable with entrances from East Dedham Street and Andrew Place. The defendant had erected on its land blocks of tenement houses which contained thirty-four houses, seven of whicli fronted on Andrew Place and had no other entrance, and all of which communicated with it, either directly or through back yards.</p> <p>The defendant had built and continued to maintain a brick sidewalk four feet wide along its whole line on Andrew Place, except at a cross street, and had erected posts in the sidewalk at intervals, and located eight inches or more from its outer edge. It was admitted that, if the defendant had a right to maintain any sidewalk in Andrew Place, the existing structure was a reasonable one. Andrew Place is a thoroughfare considerably used by various teams and vehicles, both calling at the defendant’s houses and passing through, including ice, milk, and city carts, grocer wagons, and lumber teams, none of which have been obstructed by the defendant’s sidewalk.</p> <p>The plaintiff introduced evidence tending to show that he was unable to drive Ms wagons, including water carts and caravans, out of the door of his stable on Andrew Place, and turn them so as to go out over it, without unhitching the horses and lifting the pole over a post in the sidewalk opposite his stable door, and swinging it around and then attaching the horses again; and that sometimes he had to do this a second time in order to get by another post about ten feet farther along; and that before the building of the sidewalk he had no difficulty in getting out. The plaintiff testified that he and others had used the passageway since 1867 without objection, although he owned no land abutting on Andrew Place before 1874; that a space of sixteen feet was necessary to turn round a corner with a water cart, and that he could not turn to any advantage in a passageway less than sixteen feet wide; that his water carts were about ten feet long, and his caravans twenty feet or more, all exclusive of the poles, which were nine feet long. There was also evidence tending to show loss of time and pecuniary damage by reason of such delay.</p> <p>The defendant offered in evidence the St. of 1849, c. 133, and contended that under that statute it was its duty to maintain a sidewalk in Andrew Place; and also that, independently of the statute, the building and maintaining of its sidewalk was a reasonable and proper use of the way which it had a right to make.</p> <p>If the defendant was entitled to maintain the sidewalk, the bill was to be dismissed, with costs; otherwise, a decree was to be entered for its removal, the damages of the plaintiff, if he was entitled to recover any, to be assessed by a master.</p>

<p>Corporation — Contract — Trade Name — Fraudulent Representations — Rights of Minority Stockholders — Equity — Specific Performance.</p> <p>A bill in equity, filed in 1888, alleged that the plaintiff was a stockholder in a cor- . poration chartered in 1853 and engaged in making a certain line of goods; that for thirty years it had been known to the trade by a trade name differing from its corporate name; that a corporation was organized in 1878 with a corporate name the same as the trade name of the senior corporation, and had been engaged in making a distinct line of the same goods ; that both had their principal places of business in the same city; that after the junior corporation was organized the plaintiff objected, both to it and to the defendant who was its treasurer and general manager, to its using its corporate name; that the defendant represented to the plaintiff, and promised and agreed, that it did not intend and was not going to make goods that would interfere witli those of the senior corporation; that afterwards the defendant informed the plaintiff that the junior corporation intended to increase its capital stock, and asked him to subscribe, assuring him, as inducement thereto, that it was not going to interfere with the goods or business of the senior corporation; that these representations were fraudulently made to induce the plaintiff and the senior corporation to cease opposition to the junior corporation’s use of its name, and to induce him to subscribe; that he was thus induced to become a stockholder in the junior corporation, which was preparing to make the same goods as the senior corporation, and use its name in so doing; that the defendant controlled the stock of the junior corporation, as well as the votes of its directors: that a meeting of the junior corporation had been called at which the defendant intended to vote that it' go into the new line of hnsiness, and that his vote would govern the result of the meeting; and that its carrying on such new line in its name would he an unlawful use and infringement of the senior corporation’s trade name and trade-mark, and greatly lessen the value of the stock of both; and prayed that the defendant might he enjoined from doing anything to depreciate the value of the plaintiff’s stock in the senior corporaation, and particularly from voting at any meeting of the junior corporation that it engage in such line of business, and for general relief. Held, on demurrer, that the bill could not he maintained.</p> <p>Another bill brought by the same plaintiff against the junior corporation and its four directors, including the same defendant, contained in substance the same allegations, except that the representations and promises were alleged to have been made by that defendant and the junior corporation to that plaintiff and the senior corporation, and also alleged that the use by the junior corporation of its corporate name in the same line of business as that of the senior would be an infringement and a fraudulent use of the trade name and trade-mark of that corporation, and cause great injury to its business and reputation as well as litigation that would be injurious to its interests; and prayed that the junior corporation be enjoined from using its name in the proposed line of business, and from doing certain acts preparatory to entering upon it, and that the directors be enjoined from aiding that corporation so to do by voting therefor at a corporate meeting, or in any way. Held, on demurrer, that this bill also could not be maintained.</p>

<p>Water Company — Ultra Vires — Eminent Domain — Damages —1 ‘ Springs ’ ’ — Equity — Injunction — Laches.</p> <p>Mill-owners on a stream made necessary reserves of water, under the special act of 1818, e. 35, for the use of their mills in Little Pond, a great pond in the town of B., and drew upon them for nearly sixty-five years. A water company was authorized, by the St. of 1886, c. 269, for the purpose of supplying the town of B. with water, to take land, the waters of another great pond in that and another town, and “the waters of any spring or artesian or driven wells within the town of B. and the water rights connected therewith”; and thereupon, on September 26, 1886, took land near Little Pond and constructed in such land a water gallery, and proceeded to pump from the gallery water which percolated into it from the pond and was intercepted by it on its way to the pond, thus substantially lessening the reserves for the mills. On November 8, 1887, the mill-owners filed a bill in equity to prevent this taking of water from Little Pond. Held, that the water company -had no right to take the waters of Little Pond. Held, also, that the owners were not guilty of laches, and were entitled to an injunction to prevent such diminution of their water supply.</p>

<p>BilTj in equity, filed October 20,1887, under the Pub. Sts. c. 151, § 2, cl. 11, and tbe St. of 1884, c. 285, to reach and apply in payment of a debt due to the plaintiff from the defendant, an attorney at law, sums of money alleged to be due to the defendant from various persons for his fees in prosecuting their claims before the'Court of Commissioners of Alabama Claims. The defendant demurred to the bill, among other things, for want of equity. Hearing upon the bill, answer, and an offer of proof by the plaintiff, before W. Allen, J., who dismissed the bill, and reported the case for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Bill in equity, filed March 81, 1888, to prevent the sale of coupon bonds issued by the Union Cattle Company, a Wyoming corporation, and held by the defendant trust company, which was incorporated in this Commonwealth, as collateral security for a debt due to it from the cattle company. Hearing upon the pleadings and agreed facts, before W. Allen, J., who reserved the case for the consideration of the full court, in substance as follows.</p> <p>The plaintiffs other than the Union Cattle Company were the receivers appointed to wind up its affairs, and other holders of like bonds, who appeared for themselves and for others with like interests. These receivers were appointed by a court of Wyoming Territory, in January, 1888, pending a suit in equity before it to dissolve the corporation and to wind up its affairs; and the corporation was at the same time declared insolvent.</p> <p>The cattle company was engaged in raising and selling cattle in Wyoming until its business was suspended by its insolvency, and its property, all of which pertained to its business, was situated in that Territory and vicinity. The receivers had taken possession of all such property, and were engaged in converting it into money, and the company had wholly ceased to do business and continued a merely formal and nominal existence. The assets of the company, so far as estimated, were far from sufficient to meet its direct liabilities aside from its bonds, and could not be ascertained with certainty, as the title to much of its property was in litigation, and the rest of it had no fixed market value.</p> <p>In November, 1886, the cattle company issued coupon bonds to the amount of 11,400,000. Each bond was dated November 1, 1886, and was duly signed by the cattle company and under seal, and contained the following:</p> <p>“ The Union Cattle Company, a corporation duly organized under the laws of the Territory of Wyoming, promises to pay to the International Trust Company, trustee, or bearer, one thousand dollars, on the first day of November, 1896, with interest semiannually, at the rate of seven (7) per cent per annum. . . . This bond is one of a series of fourteen hundred bonds, bearing even date, and of like tenor and amount, and is entitled to the benefits and subject to the conditions of an agreement between said Union Cattle Company and said trustee, bearing date November 1, 1886, whereby it is provided that a sinking fund of not less than fifty thousand dollars nor more than one hundred thousand dollars in each year shall be applied to the purchase or drawing at par of said bonds, and that the whole issue may be drawn at par on November 1, 1891, or any coupon day thereafter.”</p> <p>The agreement referred to, which was of even date with the bonds, was duly executed by the cattle company and the trust company, and, after stating the purpose of the cattle company to issue the bonds and setting out a copy of one of them, recited that the cattle company was to pay to the trust company, “ on or before the first day of November in each year, until all of said bonds shall be fully paid or cancelled, not less than fifty thousand dollars ($50,000), and as much more at any time, not exceeding $100,000 in any one year, as said company shall see fit to pay, to be held and managed by said trustee,” for the purchase or drawing of bonds in a manner provided for, which bonds were then to be cancelled and delivered up to the company; that the cattle company reserved “the right to call and pay off, at the office of the trustee, on November 1st, 1891, or on any coupon day thereafter, the entire issue then outstanding at par, and accrued coupon interest, upon giving notice by publication ” in a manner stated, interest to cease thereon from the last day of such publication; that the cattle company agreed never to place any mortgage or other lien on its property, unless the bonds were also secured thereby ; that, upon any default by the cattle company, the bondholders might enforce their rights and collect the amount of the bonds, but without any expense to the trust company; that the trust company should receive certain compensation for its services, and should not be responsible save for gross negligence; and that the trust company accepted the trust. The bonds were not secured otherwise than as appeared by the trust agreement.</p> <p>Of the total issue, bonds to the value of $780,000 were sold outright to eleven persons, most of whom were stockholders of the cattle company, and were still held by • such persons except in ease of the defendant. The bonds then remaining, amounting to $620,000, were delivered by the company as security for debts owed by it to various persons, in whose hands they still remained, all of such debts being overdue and unpaid. The coupons maturing on November 1, 1887, were paid, but none have been paid since that time, and the bonds are not publicly dealt in. Bonds of the par value of $59,000 of those originally sold were taken up by the trust company in 1887 with $50,000 paid in by the cattle company to the sinking fund for that purpose, under the provisions of the trust agreement; a small balance of that sum remained in the hands of the trust company, but would all be exhausted by the payment of the fees due to the trustee under the trust agreement.</p> <p>The defendant trust company, in or about November’, 1886, bought bonds from the cattle company to the amount of $100,000, and before May 27, 1887, had sold all but twenty-four bonds, which it still continued to own. On or about May 27,1887, the trust company lent to the cattle company the sum of $60,000, upon receiving its promissory notes for that amount, and also received as collateral security fifty-five of its bonds, for which the trust company signed and gave to the cattle company the following receipt: “ May 27th, 1887. Received of Union Cattle Co. fifty-five thousand dollars in Union Cattle Co. 7 °f„ debenture bonds, the same to be held as collateral security for any liability of said Union Cattle Co. to said Trust Co. 55,000 Union Cattle Co. Bonds.”</p> <p>Since that date a portion of the loan had been paid, but the defendant still held, as representing the balance due thereon, two unpaid promissory notes of the cattle company, amounting to $35,000, one for $25,000, dated September 27, 1887, payable four months from date to the order of the trust company, and the other for $10,000, dated November 29, 1887, and also payable to its order six months from date, and still held the fifty-five bonds above mentioned as collateral security. The defendant claimed the right to sell these fifty-five bonds, to satisfy not only the two notes held by it, but also the twenty-four bonds which it owned, and had served upon the receivers a notice of its intention to sell the bonds upon a day named, as the cattle company “ has failed to pay the note for $25,000 due Jan. 27-30, 1888,” and to apply the net proceeds thereof to the satisfaction of such debts.</p>

<p>Two appeals from decrees of the Probate Court upon petitions for orders of distribution by the administrator of the estate of William C. McCarthy. Hearing before Devens, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>William C. McCarthy, who died intestate on February 6,1888, leaving no wife or issue, was the illegitimate son of Ann Edwards, who died before him and was the only child of one Edwards and his wife. After Edwards’s death, his widow married Lawrence McCarthy, who had children by her, Mary Walsh and Michael McCarthy, both of whom are living, and John and Lawrence, both of whom died before the intestate, leaving children. The Probate Court made decrees of partial distribution to Mary and Michael, and the children of John and Lawrence-appealed to this court.</p> <p>The questions presented at the hearing were, first, Are the uncle and aunt the only next of kin, or are the children of the deceased uncles entitled to any share as next of kin? and secondly, Does the personal property escheat to the Commonwealth ?</p>

<p>Public Charity— Cy Pres— Costs.</p> <p>A testator provided by his will that a part of the net income of a trust fund was “ to be paid semiannually to the trustees of the Physio-Medical College of Cincinnati, Ohio, to be used by the college for the promotion of the medical art, as believed in and favored by me during my lifetime, and in support of that institution, as the trustees thereof shall from time to time determine.” There was no corporation of that name of which C., at whose instance the legacy was given, was president or director, as the testator erroneously supposed, but there was an unincorporated medical school in that city conducted under that name by C. for private profit, and devoted to the form of medical art believed in by the testator, in which C. lectured and taught, alone or with others; and it was this school, which ceased to exist at C.’s death, that the testator meant. A corporation called the Physio-Medical Institute, established at that place, claimed the gift. Held, that the gift was not a public charity; that the gift failed with the donee named; and that costs could not be allowed to the last named corporation out of the fund.</p>

Bill in equity, filed April 26,1884, to restrain the defendant from filling the plaintiff’s mill-pond, and to compel it to remove noxious material already deposited in the pond. Hearing upon the pleadings and a master’s report, before Holmes, J., who at the request of the parties reserved the case for the consideration of the full court, in substance as follows. The master’s report contained the following facts.

<p>Beneficiary Association— Contract— Change of Beneficiary — Fraud — Waioer—“Family.”</p> <p>A beneficiary association, since the passage of the St. of 1882, c. 195, § 2, enlarging the Pub. Sts. c. 115, § 8, so as to permit such an association to assist widows, orphans, “ or other relatives of deceased members,” may, upon the application of a member who before that act made his wife his beneficiary, change such designation to his mother.</p> <p>A member of a beneficiary association took all the necessary steps, so far as he was able, to designate his mother as his beneficiary, instead of his wife, and the association was ready to make the change; but in consequence of the fraud of his wife, acting in collusion with a subordinate officer of the association, the change of designation was not formally effected before his-death. Held, that the mother was entitled to the fund.</p>

<p>Estate of Deceased Person — Widow’s Allowance — Administrator — Accounting— Equity Practice and Pleading — Master — Attorney’s Lien — Set-off — Alabama Claim — Probate Court.</p> <p>The question whether an allowance to a widow from her husband’s estate was properly made by the Probate Court is not open upon a hearing on the administrator’s account.</p> <p>The findings of a master to whom a probate appeal is referred cannot be set aside without definite proof of error, but must be treated as having substantially the weight of the verdict of a jury.</p> <p>An administrator was allowed by a master, to whom a probate appeal as to his account was referred, the amount of an allowance to the intestate’s widow retained by him under an agreement with her in return for valuable services rendered to her by him; the rent of an office, necessarily hired by him for the exclusive use of the estate owing to the large mass of books and papers belonging to it; payments made by him for services performed for him as administrator in the prosecution of claims belonging to the estate; for his services and commissions as administrator; and for services rendered by him to the intestate before his death. Held, that the items were properly allowed.</p> <p>An agreement between an attorney at law and his client for the payment of a certain sum for the former’s professional services in prosecuting Alabama claims of the client, recited that the sum agreed upon “ should in some form be charged upon or paid out of any sums to be recovered on the Alabama claims.” Held, that there was no effective assignment to the attorney of any right in those claims, and that, even if there were, § 3477 of the U. S. Iiev. Sts. would be a bar.</p> <p>An administrator, who, as such, receives the amount of an award of the Court of Commissioners of Alabama Claims upon a claim in favor of his intestate, cannot assert a lien thereon for services rendered by him as an attorney at law to the intestate prior to his death in the prosecution of the claim; nor, if the estate be insolvent, can he set off his claim for such services against such amount.</p> <p>Money paid by the United States out of the Geneva Award upon an Alabama claim created by the U. S. St. of June 5, 1882, is in the nature of a gratuity, and does not pass to an assignee in bankruptcy appointed under proceedings instituted prior to the passage of that act.</p> <p>An administrator who has resigned his trust is not to apply to commissioners in insolvency appointed under the Pub. Sts. c. 137, § 2, to prove a debt due him personally from the estate, when its amount may depend entirely upon the relation in which he stands to the estate, but must present his claim to the Probate Court under the Pub. Sts. c. 136, § 6.</p> <p>The date of a decree of the Probate Court as recited therein cannot be controlled by other evidence upon an appeal from the decree; but the party aggrieved should apply to that court to correct the mistake or error, if any.</p>

<p>Instructions to Trustee — Devise—Estate for Life — Public Charity.</p> <p>A trustee has the right to ask the court for instructions as to his present duties only, and not as to what they may be in the future.</p> <p>A testatrix by her will provided, “I give and bequeath to my friend, the Rev. S. C., of S., the sum of five thousand dollars (85,000) which after his death shall revert to the town afore named strictly on this condition, namely, that said town shall support fairly and permanently a Unitarian clergyman, in which case all interest accruing on above sum shall be used to aid in payment of his salary, failing which it shall revert to my heirs at law.” Held, that S. C. was entitled to the income only of that sum during his life.</p> <p>The testatrix provided that the residue of her estate should “ constitute a fund, to be well invested, the income from which I desire my sisters to apply to the relief and comfort of the poor and unfortunate whom we have aided in past years, and also to others as their judgment may dictate; it is strictly for private charities, and may be known to them, as I consider it, as ‘the James and George fund,’” referring by these names to her deceased sons ; and added, “ It is the best monument I can erect for them.” Held, that the gift was a public charity, which was to be administered by private almsgiving for the poor and unfortunate generally.</p>

<p>Bill in equity, filed April 18, 1888, in the nature of an interpleader for instructions as to the disposition of a fund in the hands of the plaintiff. The case was heard by Devens, J., who reported it for the consideration of the full court, and was as follows.</p> <p>The plaintiff is the treasurer of the Washington Mills, a corporation located at Lawrence. The defendants who appear are the Washington Mills, the Ladies’ Union Charitable Society, a corporation also located at Lawrence, and the treasurer and managers of the Washington Mills Eelief Society. An order of notice to all other persons who had been members of the relief society was issued and duly served by publication, and, no one appearing, the bill was taken as confessed as against such members.</p> <p>The Washington Mills was incorporated in 1859, for the manufacture of cotton and woollen goods. In 1868 its employees formed an association called the Washington Mills Eelief Society, and adopted “ regulations,” which, so far as material, were as follows:</p> <p>“1. The Washington Mills Eelief Society is formed for the purpose of extending, aid to the sick and to those who may meet with accident while employed here. The Washington Mills corporation shall pay three dollars weekly to its funds.</p> <p>“ 2. Every individual employed by the Washington Mills corporation at Lawrence must be a member of this society. Membership will cease on leaving the employment of the Washington Mills.</p> <p>“ 8. The officers of the society shall be a president, treasurer, and secretary, with twelve managers, chosen annually the first week in April by and from the superintendents and overseers. These together shall compose a board of government; decide points of dispute, and manage the internal affairs of the society. Five members of the board of managers at a regularly called meeting shall constitute a quorum for the transaction of business. . . .</p> <p>“5. All disbursements ordered by the board of government' shall be made by the treasurer, who shall not retain in his possession more than twenty-five dollars at the close of any week, but shall deposit the surplus with the treasurer of the corporation, who agrees to return the sum deposited whenever called for by the treasurer of the society, in whose name the funds shall stand. . . .</p> <p>“ 8. The regular contributions of the members shall be made every pay-day, at the time of receiving their wages, to the paymaster, who shall forthwith hand over the same to the treasurer of the society.</p> <p>“ 9. Every member shall pay four weeks’ contributions on entering, and three cents a week thereafter. If a member is discharged from the Washington Mills for dishonesty, drunkenness, insolence, or any crime, he shall not receive any contribution whatever.</p> <p>“ 10. The weekly allowance to sick members shall be two dollars. . . .</p> <p>“ 11. No member shall be entitled to aid who shall not have regularly contributed for at least eight weeks, and been employed by the Washington Mills for the same length of time. But the board shall have power to grant a donation to persons who may be disabled by accident while at work, if employed for a less time than eight weeks, if in their judgment the state of the funds will warrant it.</p> <p>“ 12. The allowance to sick members may continue ten weeks; it shall then be reduced one fourth, and may be extended twenty weeks longer, should sickness continue. At the end of thirty weeks the allowance shall cease entirely; provided that no member shall receive more than fifty dollars in any one year, except by a vote of the board of government. . . .</p> <p>“ 15. The overseers shall be stewards of their respective rooms, and have power to appoint assistant stewards as they may deem necessary and proper, whose duty it shall be to visit, once each week, the sick whose residence does not exceed two miles’ distance from the mills, to make particular inquiries as to the state of illness, and to see that the invalid is well cared for. Any steward who neglects to visit a sick member within two days after receiving notice of sickness shall be fined twenty-five cents for every instance of neglect. ...</p> <p>“ 18. Any member shall have the right of appeal to the directors of the corporation, or their representatives in Lawrence, whose decision shall be final, in case of dissatisfaction with any acts of the board of government.</p> <p>“ 19. These regulations shall be altered or amended only by a vote of two thirds of the board of government, at a meeting specially called for that purpose.”</p> <p>From 1868 to 1885 two thousand persons on the average were in the employ of the mills, changing daily, all of whom became members of the relief society and contributed to its funds. Early in 1885 the Washington Mills proceeded to wind up its affairs, and discharged its employees, at which time the plaintiff had in his hands $10,194.28, as the residue of funds which had been deposited with him by successive treasurers of the relief society, and which he desired to pay over to those entitled thereto. At the last meeting of the board of government of the relief society, held on June 25, 1884, and duly called, the following vote was passed: “Voted, on motion of Mr. Ezra Cox, that, in case of a dissolution of the corporation, the fund of the relief society be put into the hands of the Ladies’ Union Charitable Society, in trust, the principal to be invested, and the interest therefrom to be applied to the support of free beds in their hospital, for the benefit of the operatives of the Washington Mills, or their successors, preference being given to the former operatives; in case none apply, then the free beds may be used for the benefit of others deserving them.” The Ladies’ Union Charitable Society maintains a hospital in Lawrence for the relief of the people of that city and others. No meetings of the board of managers or of the relief society have been held since that date, and the plaintiff still holds the funds of the society.</p> <p>The Washington Mills contended that it was entitled to have the fund paid directly to it; the treasurer of the relief society contended that the fund should be paid to him as such; the Ladies’ Union Charitable Society contended, with the assent of the defendant managers of the relief society, that the fund should be paid over to it.</p>

<p>Petition, under the St. of 1887, c. 380, to the Superior Court, filed September 6, 1888, purporting to be signed by ten “legal voters in the city of Haverhill,” and alleging “that a certain tenement in a building at the corner of Locust and Essex Streets in said Haverhill, which tenement is bounded as follows, southerly by Essex Street, easterly and northerly by land of Mary F. Rugg and others, and westerly by Locust Street, is used for the illegal beeping and sale of intoxicating liquors to the common nuisance of all good citizens; that the occupant of said tenement is John E. King; that the owners of said building are Mary F. Rugg, Mary E. Rugg, Ella A. Chesley, and Willie E. Rugg, all of Haverhill, in the county of Essex. Wherefore your petitioners pray that your Honors will restrain, enjoin, and abate said tenement as a common nuisance, and restrain and enjoin said owners, and occupant, their servants and agents, from continuing or permitting the continuance of said illegal beeping and sale of intoxicating liquors in said building.”</p> <p>At the hearing before Lathrop, J., the respondents contended that the petition was not properly signed, or signed by ten legal voters of Haverhill, as required by the statute, but, for the purposes of the hearing, admitted that the other allegations of the petition were true. The petition was signed by nine legal voters of the city of Haverhill, the tenth signature being as follows: “A. M. Allen.” The petitioners admitted that the name “ A. M. Allen” did not appear upon the official list of qualified voters, or upon the register of voters kept by the registrars of the city of Haverhill, but they offered to prove that Augustine M. Allen, a legal voter of Haverhill, was the person who signed the petition by the name “ A. M. Allen.” The respondents objected to the admission of this evidence, and requested the judge to rule that the same was incompetent, and that evidence other than the official list of qualified voters, or the register of voters kept by the registrars of Haverhill, could not be offered to show that “ A. M. Allen ” was a legal voter of Haverhill. But the judge ruled that the evidence was admissible, and thereupon the respondents, for the purposes of the hearing, admitted that Augustine M. Allen was a legal voter of Haverhill, and that he was the person who signed the petition by the signature “ A. M. Allen.”</p> <p>There was no evidence or claim on the part of the petitioners that the petitioners or any one of them would suffer any damage or injury by the continuance of the alleged nuisance beyond that common to all law-abiding citizens. Whereupon the respondents objected that this cause did not come within the class of equity cases which, in the exercise of a sound discretion, call for a preliminary injunction, and requested the judge to refuse such an injunction. An interlocutory decree ordering a preliminary injunction was, however, made.</p> <p>The respondents requested a ruling that the St. of 1887, c. 380, was unconstitutional, but the judge ruled that the statute was constitutional, and, being of the opinion that the interlocutory decree so affected the merits of the controversy that the matter ought to be determined by this court before further proceedings were, had, ordered a stay of all further proceedings, and reported for the determination of this court the following questions:</p> <p>“ First. Whether chapter 380 of the acts of 1887 is constitutional ?</p> <p>“ Second. Whether, upon the facts stated in this report, the petition was signed as required by that chapter ?</p> <p>“ Third. Whether, upon the facts stated in this report, it was within the power of the justice of this court, in the exercise of his discretion, to order a preliminary injunction? ”</p>

<p>Mortgage — Lease by Mortgagor — Fraudulent Representations — Liability of Mortgagee — Agent.</p> <p>A mortgagee of a dwelling-house was held not liable for alleged misrepresentations as to its sanitary condition made by the mortgagor in possession in letting the same, in the absence of any evidence that he was acting as the agent of the mortgagee.</p>

<p>Contract to recover for a breach of warranty of quality of one hundred and two bales of Ceara rubber, sold by the defendants to the plaintiffs. Trial in the Superior Court, without a jury, before Pitman, J., who allowed a bill of exceptions, which so far as material is as follows. .</p> <p>There was evidence tending to show the following facts. The defendants, who did business under the name of Abe Stein and Company, were importers of rubber in New York; and the plaintiffs, who did business under the name of Henry A. Gould and Company, were jobbers and dealers in rubber in .Boston. The defendants had before the sale employed one Greene, a broker, to sell rubber for them, including that in question, and had given him among others a sample of second quality Ceara scrap rubber. This sample Greene brought to the plaintiffs’ office and gave to them, representing it to be a sample of second quality Ceara rubber then in the defendants’ store. Afterwards the plaintiff Gould went to the defendants’ store, where a large part of the rubber in question was stored, at the broker’s request, to settle terms of payment, and while there made some examination of several bales of rubber, and had an opportunity to examine as many as he wished. He then said to one of the defendants, that, if the rubber examined was a fair sample of the goods, he would buy the rubber in question. That portion of the rubber bought which was stored elsewhere than in the defendants’ store was substantially of the same quality. After this examination, the parties went into the defendants’ office and had some discussion as to prices and terms. The broker then sat down and wrote bought and sold notes, reading them over to the parties line by line as he wrote them, and, after signing them, gave them to the respective parties. The bought note, to which the sold note corresponded, was signed by the broker, and recited: “Sold to Messrs. Henry A. Gould & Co. on account of Messrs. Abe Stein & Co. one hundred and forty-eight (148) bales Ceara scrap rubber, as per samples, viz. forty-six (46) bales of first quality, marked A, at forty-seven (47) cents per pound and one hundred and two (102) bales of second quality at forty-two and one half (42J) cents per pound. . . . All payable by four (4) months’ note to buyers’ own order, with interest at rate of six (6) per cent per annum from delivery.” The rubber was then duly forwarded by the defendants, and delivered to the plaintiffs. Eight of the bales received by the plaintiffs, and still in their possession, were of good second quality, and the remaining bales were of a third quality, and very inferior. The second quality of rubber is well known to the market as distinct from a third or inferior quality. It appeared that there.was no exact standard by which the grade of rubber could be fixed, but that it was a matter of judgment.' The plaintiffs did not see before the sale any bales of third quality rubber, and did not discover that the rubber delivered was not of second quality until some time after the sale.</p> <p>The plaintiffs contended that the purchase of this rubber Was made on the faith of the samples furnished by Greene, and also that the broker’s notes contained a warranty that the goods were of a second quality. The defendants contended that the purchase was made upon the examination of the rubber made by Gould at the defendants’ store, without reference to any other samples; that the same rubber that the plaintiffs bought had been delivered to them, and that the contract had been fully complied with; and asked the judge to rule, as matter of law:</p> <p>“ 1. That the examination of the rubber by the plaintiff Gould was such, and his opportunity for examination so complete, that the plaintiffs cannot maintain this action for breach of warranty.</p> <p>“ 2. That if, at the time of making the contract, the plaintiff Gould had in mind a sample previously shown to him by Greene, and the defendants had in mind the several bales of rubber examined by Gould at the store, and so the parties were not agreed as to the samples named in the contract, there was no contract of warranty on which this action can be maintained.</p> <p>“ 3. That the court must determine whether the samples referred to in the broker’s note were those exhibited by Greene to Gould, or the samples examined by Gould at the defendants’ store.</p> <p>“ 4. That if there be any warranty in the broker’s note, and the court finds as a fact that the samples referred to in the contract were the bales examined by Gould at the defendants’ store, then the warranty is only that the remainder of the one hundred and two bales were of as good quality as those examined by Gould.”</p> <p>The judge refused so to rule, but ruled and found as follows:</p> <p>“ 1. The description in the broker’s note of the one hundred and two bales of Ceara rubber as ‘ second quality ’ amounts to a warranty.</p> <p>“ 2. Such an article is well known in the market as distinct from a third or inferior grade.</p> <p>“ 3. I find that the defendants failed to deliver the article described and warranted.</p> <p>“4. The examination made by the plaintiffs did not relieve defendants from the obligation of their warranty.</p> <p>“5. I find, therefore, that there has been a breach of warranty, and that the defendants are liable to damages.”</p> <p>The judge did not find whether the sample referred to in the broker’s note was the sample exhibited by Greene to Gould, or the samples examined by Gould at the defendants’ store, or whether the rubber delivered to the plaintiffs differed from these samples; ruling that the broker’s note contained an absolute warranty of second quality rubber, and that it was not necessary to determine the question as to which sample was referred to. At the request of the plaintiffs’ counsel, the judge made the further finding, that, upon the whole evidence, there was nothing established inconsistent with the intent to warrant the rubber to be of second quality.</p> <p>The judge found for the plaintiffs; and the defendants alleged exceptions.</p> <p>The case was argued at the bar in March, 1889, and after-wards was submitted on the briefs to all the judges.</p>

<p>Tort for the removal of an oven from a bakery belonging to the plaintiff. Trial in the Superior Court, without a jury, before Lathrop), J., who found for the defendant, and reported the case for the determination of this court, as follows.</p> <p>The plaintiff made a lease of the bakery to one Webster for the term of nine years from July 1, 1881, the lease providing that “ all future erections and additions to or upon ” the demised premises should be delivered up to the lessor at the termination of the lease. The defendant was the assignee from Webster of the lease, and occupied the premises from August 17, 1887‘, till January 19, 1888, and paid rent to the plaintiff. At the date of the lease the premises had for a long period been used as a bakery, and such use continued up to January 19, 1888. Besides two baker’s ovens already in the basement, Webster in 1884 erected another in the basement in the following manner. There was an overhead chimney extending down several feet into the cellar from the floor above, built into and against the cellar wall. There was a portable furnace with a smoke pipe running into the flue of this chimney, which was removed by him. The cellar bottom was of brick with a covering of cement. Without removing the cellar floor, an oven was built upon it against the cellar wall. This oven consisted of eleven or twelve thousand bricks set in mortar to hold the same, and an iron interior and door. The brickwork was “tied in” to the cellar wall as follows: two slots, about two and a half feet long, six inches wide, and four inches deep, were cut into the cellar wall, and the masonry of the oven was built into said slots, so as to “ tie ” the oven to the cellar wall. About two feet and a half of the bottom of the overhead chimney was cut away, leaving the flue exposed, and the oven was built up thereto, so that the flue or smoke vent of the oven became continuous with the flue of the chimney, and each alternate layer or course of the brick of the oven was lapped into the brick of the chimney, so as to make the chimney and oven continuous. A trench, about one foot deep and several feet wide and long, was dug in front of the oven doors. The sides of the trench were banked up with brick to hold the earth back, and the bottom of the trench was concreted. This trench was used to enable the stoker to remove ashes, and it was necessary to the convenient use of the oven.</p> <p>In December, 1887, during the term of the lease, this oven being then out of repair, the defendant, who had purchased the oven, sold it, and authorized the purchaser to remove it. The purchaser did remove it, and in so doing left the holes or slots in the cellar wall open, and left the chimney about two and a half feet shorter than it was originally, and the chimney flue open at the bottom. The draught of the chimney in the rooms above was .thus impaired. The oven was not and could not have been removed intact, but the masonry of which it was composed was knocked down, and the bricks were taken away.</p> <p>The judge found the value of the oven to the building to be one hundred dollars, aside from a damage of ten dollars to the building from the removal; and that the oven was a trade fixture ; and ruled that the plaintiff could not recover for the removal. If, as matter of law, the oven was not a trade fixture, and the plaintiff can recover for the removal of the oven, judgment was to be entered in her favor for one hundred dollars; otherwise, judgment for the defendant.</p> <p>The case was- submitted on briefs to all the judges.</p>

<p>Tort for filling up flats at a public landing place in Newburyport, and interrupting the plaintiff’s right of drainage upon and across such flats into tide-water. Trial in the Superior Court, before Thompson, J., who, after a verdict for the plaintiff, allowed a bill of exceptions, which, so far as material, appears in the opinion.</p> <p>The case was argued at the bar in November, 1888, and after-wards was submitted on the briefs to all the judges.</p>

<p>Bill in equity, filed November 3, 1886, brought originally against the first named defendant alone, for the removal of a portion of a wall standing in part on his land, and for damages for its erection and maintenance. Subsequently certain mortgagees of his estate were admitted as parties defendant. The case was heard by Field, J., who imported it for the consideration of the full court. The facts appear in the opinion.</p>

<p>Deed — Party Wall — Fence — Building Act — Injunction.</p> <p>The owner of land on the north side of a city street conveyed two adjoining lots to different persons, each deed providing that “ the centre of the easterly and westerly partition walls of the houses . . . first erected on the said land shall be placed on the division lines between the granted premises and the adjoining lots,” and that the one who first built such a wall should be paid by the other, upon his using it, one half its cost. The grantee of the westerly lot erected a house on the front part thereof, with such a wall on the division line between the two, and built a wooden fence on the rest of the line. Subsequently, the grantee of the other lot proceeded to build a higher and deeper house thereon, conforming in all respects to a building act in force in the city, and for that purpose to carry up such wall and to extend it to the rear, necessarily displacing a part of the fence. Held, that such additions could rightfully be made without payment being first made of one half the cost of the existing wall, if no injury was done thereto, and that a bill in equity to prevent their being made could not be maintained.</p>