Volume 150 — Massachusetts Reports

<p>Sale on Margin —Wagering Contract—Public Policy — Broker — Law of another State.</p> <p>Where the rights of parties to an action are governed by the common law of another State, in the absence of evidence of such law decision will be made according to the law of this Commonwealth. *</p> <p>A wagering contract is illegal and void, as against public policy, and a broker who knowingly makes such a contract and advances money on account thereof, at the request of his principal, cannot recover either the money so advanced or commissions for his services.</p> <p>Brokers in Chicago made a contract with a firm in Boston, in consideration of orders from the latter to buy and sell pork for future delivery, to make such purchases and sales of equal amounts thereof in their own names on the Chicago Board of Trade, and to procure them to be set off against each other according to the usages of that board; that the firm should only be required to pay to them, or be entitled to receive, the difference between what the pork cost and what it was sold for; and that the firm should put up certain margins and pay the brokers their commissions. The firm gave the orders and furnished the margins, and the brokers made the purchases and sales, and set them off against each other at a loss. Held, that the contract was a wagering contract, and that the brokers could recover neither their commissions nor the losses incurred by them in settling such differences, although the sales and purchases made by them might be valid.</p>

<p>Sewer A ssessment — Burial Ground — Exemption from, Taxation.</p> <p>A sewer assessment cannot be laid, under the Pub. Sts. c. 50, §§ 4, 7, upon a cemetery corporation’s land, which, by its charter, is perpetually set apart as a burial place for the dead, and can neither be sold, used for profit, nor appropriated to any other purpose.</p>

<p>Bill in equity, filed March 19, 1888, by the plaintiffs, as the • owners of an estate on Hanover Street in Boston, against Isaac Farrington, the owner of an adjoining estate, the Suffolk Savings Bank for Seamen and Others, the mortgagee of such estate, and the administrator of James W. Johnson, the lessee of a large portion thereof, for the removal of that part of a building belonging to the defendant Farrington which stood upon the estate of the plaintiffs, and for damages. The case was heard by Field, J., who reserved it for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Insolvent Debtor — Fraudulent Conveyance — Real Action■—Compromise — Entry of “ Neither Party ” — Accord and Satisfaction.</p> <p>An assignee in insolvency brought a writ of entry to recover land conveyed in fraud of creditors, and, being duly authorized to compromise the action upon payment of costs by the tenant, entered into an agreement in writing with the tenant that the entry of “neither party” might be made; and the tenant paid the costs. Held, that there was evidence of accord and satisfaction of the cause of action.</p>

<p>Deed — Mutual Mistake — Equitable Defence.</p> <p>At the trial of an action by a grantee against a grantor for a breach of warranty of title to a part of land described in a deed, it appeared that the parties orally agreed to buy and sell “ only what the defendant owned ”; that the defendant had no title to the part in question; that the deed was drawn by the plaintiff, and the defendant, though illiterate, did not have it read to him, but signed it supposing that it covered only the land he owned; and that the mistake, if any, of the plaintiff in so drawing the deed was in understanding that the defendant owned and agreed to sell and convey such part. The judge submitted to the jury these issues: Was the description in the deed, in purporting to convey more than the grantor owned, “ inserted in the deed by accident or by mutual mistake” ? and, Did the parties orally agree before the deed was executed that the grantee was to buy and the grantor to sell only what he owned, and " did they attempt to embody said agreement in said deed ” ? The plaintiff requested an instruction to the jury, that, if the plaintiff “ supposed at the time of taking the deed that it did convey ” the part in question, they must answer the issues in the negative, but the judge refused so to instruct, and the plaintiff excepted. The jury answered the issues in the affirmative, and returned a verdict for the defendant. Held, that the exceptions must be sustained, and the verdict and findings set aside.</p>

<p>Tort to recover damages for an ouster of a term of years. Trial in the Superior Court, without a jury, before Barker, J., who found for the defendants, and reported the case for the determination of this court, in substance as follows.</p> <p>Frederick L. Ames and Helen A. Ames, as the owners of an estate numbered 48 on Winter Street in Boston, gave a lease thereof to Forbes Wight, who did business under the name of Forbes Wight and Company, for the term of five years from February 1,1881. Helen A. Ames died on December 13, 1882, and the defendant other than the first named held by descent all the title which she had in the leased premises. This lease, which contained no covenant against subletting a portion of the demised premises, provided as follows: “ And provided also that these presents are upon condition, that, if the said lessee or his representatives or assigns do or shall neglect or fail to perform and observe any or either of the covenants contained in this instrument which on his part are to be performed, or if the said lessee shall be declared bankrupt or insolvent according to law, or if any assignment shall be made of his property for the benefit of creditors, then and in either of the said cases the lessors or those having their estate in the said premises lawfully may, immediately or at any time thereafter, and whilst such neglect or default continues, and without further notice or demand, enter into and upon the said premises or any part thereof in the name of the whole, and repossess the same as of their former estate, and expel the said lessee and those claiming under him, and remove their effects, (forcibly, if necessary,) without being taken or deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and that upon entry as aforesaid the said term shall cease and be ended.” The report was silent as to the payment of rent by Wight, or of taxes on the leased premises.</p> <p>On May 25, 1881, Wight made a sublease for one year of a portion of the building, consisting of a room numbered 1 and a suite of rooms numbered 10 therein, at an annual rent of five hundred and ten dollars, with the privilege of extension to February 1, 1886, providing for re-entry by Wight for breach of any covenant, with no covenant against subletting, but with an express covenant by the plaintiff to pay rent to Wight. The plaintiff entered and took possession under this lease, and exercised the privilege of extension to February 1, 1886, by remaining in possession and paying rent under the lease after the end of the year for which the lease was given. The plaintiff continued in personal possession of the premises leased to him until February, 1883, when he underlet them to tenants at will, who thereupon entered into possession. In January, 1884, Wight “ failed,” and the defendants then put a janitor in the building, and made an arrangement with Wight by which he collected the rents for them. On February 2, 1884, the plaintiff wrote to the first named defendant a letter, in which he said: “ Hearing that Mr. Forbes Wight had failed, I write to ask if my lease from him for rooms Ho. 1 and 10 at 48 Winter St. is in any way affected thereby, and if I shall continue to pay rent to Wight as heretofore.” On the same day a reply was sent to the plaintiff, signed on behalf of the first named defendant, which contained the following: “ In reply to your favor of this date, I will say that for the present it is all right for you to pay rents to Mr. Wight, who is acting as the agent of Mr. Ames in collecting them. If there is to be any change, I will see that you are notified.” On February 14, 1884, the plaintiff paid the instalment of rent due on February 1, 1884, for the preceding January, and received a receipt therefor signed “ Forbes Wight & Co.” On March 4, 1884, Wight executed what purported to be an assignment of “ goods, wares, and merchandise,” situated on the leased premises, for the benefit of creditors, which was signed by himself, by his assignee, and by one other person only, who was not described. On March 11, 1884, Wight indorsed on the lease from the Ameses to him a surrender of all of his rights under it, and on the same day the following letter was sent by the first named defendant to the plaintiff: “ I beg to notify you that Mr. Forbes Wight no' longer holds a lease of the building 48-50 Winter Street, and that from and after this date, and until further notice, the rent due from you will be due and payable to the undersigned.”</p> <p>The plaintiff, in a letter written by him to the first named defendant on March 17, 1884, acknowledged the receipt of his letter of March 11, and inquired, “ Do you propose to give me a lease for the principal term of my lease from Wight, viz. two years from February 1, 1884, or in the reading of the lease ‘ to February 1, 1886.’ ” To this letter the plaintiff received the following reply, under date of March 20, 1884:' “We expect to find a party who will take a lease of the whole building just as Mr. Wight did, under which circumstances you can undoubtedly go on just as you have been in the building, and if we do not find such a party we shall be glad to have you remain as our tenants.” On March 24, the plaintiff made another payment of rent, due March 1, for the preceding month of February, and received therefor another receipt, dated March 1, and signed by Wight; both of the receipts received by him being on bill-heads of “Forbes Wight & Co., Importers and Retailers.” On May 7,1884, the plaintiff’s tenants of the suite of rooms numbered 10, mentioned in the lease to him, were put out of possession of them by the defendants, and the tenant of room No. 1 attorned to the defendants as his landlords, induced thereto by their threats to eject him unless he should so attorn, and thereafter paid rent to the defendants, informing the plaintiff of that fact, and refusing to pay further rent to him; and the defendants have since been in possession of the leased premises. Between March 24 and April 19 there was further correspondence, the plaintiff on April 10 first acting by attorney, in which the plaintiff insisted on his rights, and on April 15 denied that he was under any obligation to pay rent to any one, and in which the defendants refused to regard him other than as a tenant at will.</p> <p>The first named defendant, in his sworn answers to the plaintiff’s interrogatories, testified that he was informed by his counsel that after the above assignment by Wight, and after Wight had surrendered all his rights under the lease from the Ameses to Wight, all persons claiming under that lease, or under Wight as lessee thereunder, who were in possession of any portion of the premises, either attorned to the defendants or vacated the premises. The plaintiff testified that he never paid rent to the defendants, or either of them, and that he never acknowledged either of them as his landlord.</p> <p>It did not appear that there was any breach of the conditions of the lease from the defendants to Wight, or that any tenancy at will was established between the plaintiff and the defendants, or that the defendants gave any notice to quit to Wight or to the plaintiff, or conveyed the premises, or made any other lease thereof than the one to Wight, or took any possession of the premises, or made any entry for breach of condition of the lease to Wight, except so far as may be inferred from the facts and evidence above stated.</p> <p>If the finding was right, judgment was to be entered for the defendants; otherwise, such judgment was to be .entered as law and justice might require.</p>

<p>Contract, by the administratrix of the estate of Smith Curtis, foi a balance due upon the following promissory note:</p> <p>“ Boston, April 1, 1876. For value received, I promise to pay to Smith Curtis, or order, the sum of ten thousand dollars, five years from date, at the rate of six, 6|, one half per cent per annum, payable semiannually. Six months’ notice in writing to be given to promisor or his representative if payment at the end of said term will be required, or before enforcing payment if said note is allowed to run over the term above limited, this note being given in full satisfaction and payment of all demands.</p> <p>“ George B. Bigelow.”</p> <p>On the back of the note, among other indorsements of payments of interest signed by the intestate, were the following :</p> <p>“ January 29, 1879, received on account of the within nine hundred seventeen yg-g dollars, interest in full to date, also seventeen hundred and seventy dollars of principal.”</p> <p>“ January 22, 1880, received on account of interest on the within, twenty dollars.”</p> <p>The answer was as follows: “ And now comes said defendant and says that he made a writing to the same effect as that declared upon, but he denies that there ever has been any demand for payment as therein required; and he further says, that after making the said writing, to wit, the twenty-ninth day of January, in the year 1879, the father of this defendant paid to Smith Curtis, the plaintiff’s intestate, the sum of twenty-six hundred and eighty-seven dollars and six cents, being all the interest accrued on the sum of ten thousand dollars, the amount specified in said writing to that date, and also the sum of seventeen hundred and seventy dollars on account of said principal sum, upon the consideration and distinct agreement of said Curtis that he would not thereafter sue or molest this defendant in any way by reason of the writing declared, or attempt to enforce said claim, but this defendant might make any further payments at any time thereafter that he might wish; and he prays judgment if the plaintiff ought to have or maintain this action against him.” Writ dated July 17, 1886.</p> <p>Trial in the Superior Court, before Hammond, J., who, after a verdict for the plaintiff, reported the case for the determination of this court, as follows.</p> <p>The plaintiff contended that, in March, 1883, a notice was given by Curtis to the defendant, which notice was as follows: “ Mr. Geo. B. Bigelow, —In your note dated April 1,1878, for ten thousand dollars, given to Smith Curtis, I give you notice I require payment of said note according to terms. Yours truly, Smith Curtis.” She offered evidence that one Dexter, on March 10, 1883, wrote the above notice at the request of Curtis, who then signed it; that Dexter put it into an envelope addressed to the defendant at the Old State House in Boston, and placed the same, postage paid, in the United States mail; and that on the envelope was a request that the letter, if not delivered in five days, should be returned to Dexter, and that it was not returned. The plaintiff introduced other evidence tending to show that at a trial of another action the defendant testified that he had no recollection of having received the notice, but that it was possible he might have done so. There was evidence that the defendant, a year and a half before March 10, 1883, removed from the Old State House to another building on Washington Street in Boston, where he remained until after March 10,1883; but there was no evidence that the defendant’s new address was known to the postal authorities, unless that fact can be presumed from the usual course of postal service in the city of Boston. The defendant testified that he had no recollection that he made any request that his letters should be forwarded to his new address, or that they were so forwarded; that he had no reason to believe that his letters were regularly or usually forwarded from the old to the new address, but that at that time he was, and for years had been, a lawyer in active practice, and daily received letters at his office by mail; and that he saw Curtis a number of times after March 10, 1883, and before his death, and no mention was made of the demand.</p> <p>The defendant offered to prove, by competent evidence, that on January 29, 1879, his father, Samuel Bigelow, conveyed a piece of real estate to Curtis for the sum of fifteen thousand dollars, receiving forty-five hundred dollars in cash and a portion of the balance in an indorsement upon the note in question; that Curtis agreed with Samuel Bigelow, in consideration of this conveyance, never to molest or trouble the defendant for the balance due upon the note ; and that the interest to January 29, 1879, and seventeen hundred and seventy dollars of the principal of the note, were then paid by this conveyance and indorsed upon the note. The plaintiff admitted that these sums should be allowed upon the note, but objected to the introduction of the evidence, on the ground that the agreement with Samuel Bigelow was not a bar to this action. The defendant contended that this defence was open to him under the St. of 1883, c. 223, if not before that statute, and asked the judge so to rule; but as Samuel Bigelow was neither a party to the note nor to this action, the judge ruled that, notwithstanding the St. of 1883, the defence was not open to the defendant, and excluded this evidence offered to support it; and the defendant duly excepted. The defendant then moved that Samuel Bigelow be summoned in as a party to this suit, so that the defence would become competent ; but the judge ruled, as matter of law, that Samuel Bigelow could not be summoned into court for that purpose, and overruled the motion.</p> <p>Upon the question whether the defendant received the notice of March, 1883, the defendant asked the judge to rule:</p> <p>“ 1. That there was no evidence of the delivery of this notice of March 10, 1883, to the defendant.</p> <p>“ 2. That the presumption of the delivery of a letter sent postpaid through the mails to the person to whom it is addressed does not apply to a case where the letter is directed to a place from which the person to whom it is addressed has removed.”</p> <p>The judge declined to give either of these instructions, and instructed the jury that there was a presumption that a letter sent postpaid through the mails is delivered at the place to which it is addressed; and that if the person to whom it is addressed has removed from that place and has informed the postal authorities of .the place to which he has removed, or if the authorities otherwise know the new address, it is a presumption, in the absence of other evidence, that the letter is delivered to him at the new address; but that this was simply a presumption, and the jury were to consider upon the whole evidence whether the notice was received. The jury were further instructed to bring in a verdict for the plaintiff, if they found that the defendant received that notice; otherwise, for the defendant.</p> <p>The defendant contended that, as matter of law, the note did not bear interest from its date at the rate of six and a half per cent, and asked the judge so to rule, which he refused to do; but upon the question of the amount of the verdict, if for the plaintiff, he instructed the jury, that, upon the question whether interest should be allowed from the date of the note, they might take into consideration the subsequent acts of the parties, and if they were satisfied from the subsequent dealings of the parties with reference to the note that the parties interpreted the note as one bearing interest from its date and acted upon that interpretation, the jury would be warranted in reckoning interest from its date. The defendant excepted.</p> <p>The jury returned a verdict for the plaintiff for the balance due on the note, with interest from its date, upon which judgment was to be entered if the rulings and refusals to rule were correct.</p> <p>The case was submitted on briefs to all the judges.</p>

<p> Evidence. </p> <p>On an indictment for larceny, evidence was held competent as tending to identify the stolen property, although it also tended to prove another larceny by the defendant.</p>

Bill in equity, filed December 5, 1888, alleging, in substance, that the defendant insurance company for many years prior to July 7, 1881, conducted its business in two classes, and kept the assets and liabilities of each class distinct from each other; that the plaintiffs before and after that date were policy holders of the second class; that on that date, the assets of the second class being in excess of its liabilities, the defendant, by a vote of a few of its policy…

Holmes, J., affirmed the decree, and an appeal was taken to the full court. Subsequently the appellant waived his appeal, and the appellee filed a motion to the full court that the decree appealed from be affirmed.

<p>Practice — Divorce — Non-entry of Exceptions.</p> <p>If, upon granting a decree for divorce and alimony, the Superior Court allows a bill of exceptions, which the excepting party fails to enter in this court, an application for an affirmance of the decree should be addressed to the Superior Court.</p>

<p>Complaint for unlawfully selling intoxicating liquors to Daniel Curry, a minor, on May 28, 1888. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to show the following facts. The defendant held licenses of the first and fourth class for the sale of intoxicating liquors, and kept a saloon in New Bedford, the front door of which opened on Water Street, and the back door on a yard leading to Griffin Street. On May 28, 1888, Curry went to the back door of the saloon, and the defendant’s bartender sold to him a small bottle of whiskey.</p> <p>Julia Mendoz, against the defendant’s objection, testified that she had often seen the boy Curry going to the defendant’s saloon; that on the Saturday previous to May 28, 1888, she saw the defendant sitting in the front window of his bar-room, and at the same time the boy Curry go into the saloon; that the defendant got down from the window, and in a few minutes the boy came out; but she could not say whether the boy got anything or not.</p> <p>The defendant denied all knowledge of the sale in question, and testified that Curry was not in his shop on the Saturday previous to May 28, nor at any time to his knowledge; and that he did not allow minors in his saloon, and had so instructed his bar-tender. The bar-tender testified that he never sold or delivered any liquor to Curry, and that he had been instructed by the defendant not to sell or deliver liquor in any way to minors, or to allow them about the premises.</p> <p>The defendant requested the judge to instruct the jury as follows:</p> <p>“ 1. If the jury find that the defendant’s servant, without the defendant’s knowledge, authority, or consent, sold and delivered intoxicating liquors to a minor, such sale and delivery would not be an offence committed by this defendant, and he must be acquitted.</p> <p>“ 2. An unlawful sale of intoxicating liquors by a servant during the absence of his employer, is not a sale by the employer for which he can be convicted without evidence of knowledge and consent to the general violation of the law by his servant, and in the absence of evidence of such knowledge and consent the defendant must be acquitted.</p> <p>“ 3. If the defendant ordered or instructed his servant not to make unlawful sales of liquors, and the servant during the absence of his employer makes an unlawful sale of intoxicating liquors, such sale does not constitute a criminal offence for which the defendant is responsible, and he must be acquitted.</p> <p>“ 4. The government must not only prove that the defendant’s servant made an unlawful sale of intoxicating liquors, but it must also prove that such unlawful sale was within the scope of the servant’s authority, and in the absence of such proof the defendant must be acquitted.</p> <p>“ 5. An unlawful sale of intoxicating liquors by a servant at the back door of premises licensed for the sale of liquors is prima facie the unlawful act of the servant, for which the employer is not liable without affirmative proof that the sale was made in the presence of or with the consent of the employer.</p> <p>“ 6. If the defendant’s servant wilfully or in violation of his instructions out of the usual course of his employment sells intoxicating liquors to a minor, such sale would not make the defendant liable for the act of his servant, unless the Commonwealth proves that such sale was made with the knowledge or consent of the defendant. . . .</p> <p>“ 8. While a man may be liable for acts of his servant in a civil action, which acts are contrary to express orders of the employer, the mere presence of an employer when a criminal act is committed, unless the employer consents to it and participates in it by such consent, does not constitute him a criminal.”</p> <p>The judge gave the first, fourth, fifth, and sixth instructions requested, and declined to give the others, but gave other instructions upon the subjects therein referred to, to which no objections were made, except that they were not in all respects equivalent to those requested and refused.</p> <p>The jury returned a verdict of guilty, and in answer to a question by the judge said they, did not regard the evidence as to anything previous to May 28, 1888; and the defendant alleged exceptions.</p>

<p>Town Division — Judicial District — Justice of the Peace.</p> <p>If a town, forming with other towns the judicial district of a District Court, is divided by the incorporation of a part thereof as a new town with a new name, such new town, in the absence of anything to the contrary in the act of incorporation, as well as that part of the original town which retains the old name, will continue to belong to the same district.</p> <p>A justice of the peace, with authority to issue warrants in criminal cases arising anywhere within the district, whose residence falls within the new town, may continue to issue warrants in such cases as arise therein, as well as elsewhere in the district.</p>

<p>Indictment — Conclusion — Constitutional Law.</p> <p>Section 16 of chapter 213 of the Public Statutes, providing that no indictment shall be quashed because it does not conclude against the peace of the Commonwealth nor against the statute in such cases made and provided, if the omission does not tend to prejudice the defendant, is not unconstitutional as in conflict with Article XII. of the Declaration of Rights.</p>

Complaint on the Pub. Sts. c. 203, § 74, for the sale of personal property in the defendant’s possession, and received by him upon a written and conditional contract of sale, with intent to defraud, before performance of the conditions precedent to acquiring the title to such property.

Complaint to the First District Court of Bristol, in two counts, against Caleb S. Miller and Charles H. Elderkin, charging them both in the first count with having received stolen goods on February 3, 1889, the property of one Whittaker, and in the second count with having received stolen goods on February 5,1889, the property of one Fish.

<p>Intoxicating Liquors — Common Nuisance — “ Tenement ” — Election.</p> <p>On a complaint for keeping and maintaining a common nuisance, to wit, a tenement used for the illegal keeping and sale of intoxicating liquors, there was evidence that the defendant occupied and controlled a room in one part of a building as a saloon, and a room in another part as a living room or kitchen, and sold such liquors in both of them. Held, that such different uses would not make these rooms distinct tenements, and that the government could not be required to elect in which room the defendant’s tenement was.</p>

<p>Bill IN equity, filed in the Superior Court on February 16:, 1888, to remove a cloud upon the title of the plaintiff to a lot of land in Cottage City. The case was heard by Brigham, C. J., who made a decree for the plaintiff, from which the defendant appealed to this court; and was as follows.</p> <p>On November 30, 1878, the plaintiff became the owner of the land in question, being a portion of a tract known as the 16 Offset or Goat Pasture.” No permanent bounds or fences were ever established or maintained between the land in question and the remainder of the tract. In 1879 and 1880 taxes upon the land were duly assessed to the plaintiff, and were paid by him. In 1880 the assessors of Cottage City also assessed taxes upon the same land to Amoz Smith, who never had any record title thereto, or claimed to own it, but who used it for many years for pasturage purposes with the oral permission of a former owner. Upon the non-payment of such tax by Amoz Smith, the collector of taxes of that town, on June 21, 1882, sold the land by public auction to one Woodward, who subsequently conveyed it to the defendant.</p>

Replevin of a horse and harness. At the trial in the Superior Court, before Bishop, J., it appeared that the defendant, a deputy sheriff, attached the horse and harness in an action of contract brought against the husband of the plaintiff by a judgment creditor of the husband, but not of the plaintiff; that at the time of such attachment the plaintiff was carrying on the business of farming and of selling milk, on her sole and separate account, in the town of Somerset; and…

<p>Tort for personal injuries. The declaration alleged that the “plaintiff was employed by defendant to work in its mill; that it was the duty of defendant to furnish plaintiff with proper, safe, and suitable machinery and implements to work; that defendant, wholly regardless of this duty, negligently and carelessly furnished plaintiff with dangerous and improper and defective machinery and implements with which to perform his work; that by reason of this negligence and carelessness of defendant, while plaintiff was engaged in the work for which he was employed by defendant, and while he was in the exercise of due care,” the plaintiff was injured.</p> <p>The answer, among other things, denied that the plaintiff was injured while engaged in the work for which he was employed by the defendant, and while in the exercise of due care, and alleged that he “ was injured through his own carelessness, from a wilful disregard of his instructions, and from endeavoring to perform work beyond the scope of his duties, and which he had been expressly told never to do.”</p> <p>At the trial in the Superior Court, before Bishop, J., it appeared in evidence that the plaintiff was injured by being caught in a set screw while in the act of putting a belt on a pulley which was connected with an elevator up and down which his work required him to pass, and which was about twenty feet from the elevator, and the only purpose of which was to run the elevator.</p> <p>The plaintiff testified that he was twenty years old at the time of the accident; that he had worked for the defendant two years in all, as a spare hand in the dye-house, to do all the odd jobs; that he had been engaged in carrying cloth from .the third story of the mill down to the basement to be dyed for about two weeks before the accident; that he had to use a truck, start from the dye-house, and go through the basement, and use an elevator to go up into the third story, and load the truck with cloth and carry it to the basement again, using the elevator; that there was no man to run the elevator regularly, but every man that came there had to run it; that he started it himself every time he had to use it; that the elevator was run by belting extending from the main shaft to three small pulleys, one to start it up, one to let it down, and a loose pulley in the centre; that just before the accident he was about to use the elevator to carry him from the third story to the basement; that at the time the elevator belt was off the main pulley on the main shaft; that another workman put it on for him, and he started the elevator down to the basement; and that “ when the elevator got into the basement the belt came off again. The elevator was at the third story when the belt was put on, then it was started down ; when it came down, the belt came off again. Then I went up to put it on and got caught. There was a large open hogshead directly under the shafting standing on the basement floor; there was a plank laid across this hogshead. I got on top of this hogshead standr ing on the plank to put the belt on. Then I got caught on this set screw on the right side. I had my back to the elevator, standing between the wall and the pulley, and while in that position, with the belt in my hand, was caught by the screw and whirled round the shafting and thrown off. After I was caught I looked and noticed this set screw right where it had caught me. I did not notice it before. I tried to get away to hold back to save myself from being carried around. I was whirled round the shafting, and all my clothes torn off. I noticed the shafting this morning. The. collar and set screw were moved. It was right up against the hanger at the time I was injured, on that part of the shaft that came between the wheel and the hanger. The collar and set screw were there at that time ; they are not there now. The collar projected an inch and a half or two inches from the hanger. The set screw was placed on the collar to fasten it to the shaft, and projected between one and two inches from the shaft, and was about an inch from the collar.”</p> <p>The plaintiff was asked, “ Was there anybody whose duty it was to put the belt on the pulley when it was off? ” The plaintiff was permitted, against the objection of the defendant, to answer this question, and replied in the negative; and the defendant excepted.</p> <p>On cross-examination the plaintiff testified: “ When I was caught, I got up on the plank on the hogshead right under the shafting to put oh the belt. The pulleys were in motion, and turning at the rate of one hundred and fifty revolutions a minute. Just as quick as I got caught, I looked down and noticed the set screw in my clothing. The plank was between six inches and a foot wide. It was rather dark in the basement, . . . always dark in there. . . . When I was set to carrying cloth from the running-room to the dye-room I knew how to run the elevator and did not need any instructions. The pulleys connected with the elevator were in a rather dark position, you could not see them distinctly. The pulleys themselves were all in sight. You could not see the small parts, any set screw. The main portion of the machinery was all in sight, and had been so during the whole time I worked there. There was nothing about the situation of the pulleys and the arrangement with relation to each other but what I had seen all the time I was working there.”</p> <p>The plaintiff called as a witness one Kelley, and, after he had testified that he had worked for the defendant at intervals for twenty years, and was working for it when the plaintiff was injured, proposed to show by him that the belt was frequently off, how it was put on, and who put it on; and “ that there was not anybody specially charged with that; that everybody did it that had to use the elevator, — had to put the belt on.” The judge excluded the evidence, and the plaintiff excepted.</p> <p>The defendant called as a witness one Catterall, who testified that he had been for many years in the defendant’s employment; that there was a man in the defendant’s employment whose duty it was to repair the belts; that he was called the beltman; that if there was anybody in the works that wanted any belts fixed they went to him; that he attended to putting on belts, and in general to everything connected with the belts; that he knew where this belt was, and, if it came off half a dozen times a day, he understood they would go to the beltman to get it put on; and that he had seen people come to the belt-man to have him put belts off and on.</p> <p>The judge, at the defendant's request, directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tort for the conversion of a litter of pigs. At the trial in the Superior Court, before Dunbar, J., it appeared in evidence that the defendant, a deputy sheriff, attached the pigs as the property of John Lockwood, the husband of the plaintiff, in an action brought against him by a creditor of his.

<p>Widow — Assignment of Real Estate in Fee—Vested Remainder.</p> <p>Under the Pub. Sts. c. 124, § 3, a widow is not entitled to an estate in fee not exceeding five thousand dollars in value in lands in which the only interest of her husband was a vested remainder.</p>

<p>Two ACTIONS OE tort. The first case was brought by the plaintiff, a minor, for personal injuries, and the second was brought by his father, for the loss of his services, and for the expense of caring for him while he was suffering therefrom.</p> <p>At the trial of both cases together in the Superior Court, before Dunbar, J., on the question whether the boy was in the exercise of due care at the time he was injured, there was evidence tending to show that he was about twelve and a half years old, bright and large for his age and entirely healthy, with good eyesight and hearing; that he was used to horses and to driving them, and was familiar with street cars, upon which he had frequently ridden; that on the day of the accident, which was bright .and clear, he was stopping at the house of his uncle, on the easterly side of Purchase Street in New Bedford; that he was familiar with the locality, and knew that this street, which was fifty feet in width and had a street railway track running through the middle of it, was the main travelled thoroughfare of the city; that his uncle sent him after a piece of ice, and he left the house for that purpose; that as he came out of the house he looked up the street towards the north and saw an ice cart approaching him; that at the same time he saw no street car, although he looked for one; that the cart was being driven along between the car track and the westerly sidewalk, with its nigh wheels on the westerly track; that he started towards the north diagonally across the easterly sidewalk and the street towards the approaching cart; that upon reaching a point between the car tracks and opposite the driver of the cart he turned and walked along between the tracks towards the south, keeping pace with the cart for a distance of between eighty and ninety feet; that as he walked along he shouted to the driver that he wished some ice, but the driver, although looking at him, made no response; that he shouted to the driver a second time with like result, when he noticed that the driver turned his horses to the right so as to clear the wagon-wheels from the car track; that thereupon he was struck by the horses of the street car, which approached him from behind, and was seriously injured; and that he did not hear the car before he was struck, nor did he have any warning of its approach.</p> <p>The boy testified, on cross-examination, that he stood still for a few seconds while the driver was turning his horses away from the car track before the horses attached to the car hit him; that from the time when he shouted to the ice-cart driver for the second time until he was struck, fifteen to twenty seconds elapsed; that the cart had not fairly passed him when he was injured; and that when struck he was standing on one of the rails of the track. In answer to the question, “ Knowing the whole use that street was put to, you stood there without looking at all for five minutes, that is, from the time you left the house, to see if any car was coming, ■—that is it, is it? ” he said, “ Yes, sir, I thought I could hear a car if it was coming.”</p> <p>The plaintiffs also called as a witness the driver of the ice-cart, who testified that the plaintiff at the time he was struck was walking towards the south between the two rails of the horse-car track; that the weight of his cart and the load of ice in it was about ten tons; and that as it moved on the pavement of the street it made a great deal of noise.</p> <p>The plaintiffs also introduced evidence tending to show that the car was from five to ten minutes behind time, and that the driver of the car was hurrying to meet another car; that when at some distance from the boy, the driver shouted to him, and after the car had moved about its length he shouted again; that after about the same interval of time he shouted again, and then put on the brakes; that when he shouted the third time the horses were within a few feet of the boy; and that the car was about half full of passengers, and could have been stopped in about half its length at the speed at which it was going.</p> <p>The judge refused to order verdicts for the defendant, and submitted the cases to the jury.</p> <p>The jury returned a verdict for the plaintiff in each case; and the defendant alleged exceptions.</p>

<p>Complaint for keeping and maintaining a common nuisance, to wit, a certain tenement in New Bedford, used for the illegal keeping and illegal sale of intoxicating liquors, from July 1, 1888, to April 12, 1889.</p> <p>At the trial in the Superior Court, before Brigham, C. J., it appeared that the defendant had a license as a common victualler, and that he also had a license of the first class to sell intoxicating liquors in the tenement in question.</p> <p>There was evidence that persons had been frequently seen in the tenement, and also on the street near it, who were habitual drunkards, drunk, or more or less intoxicated, and under the influence of intoxicating liquor; and that the defendant had been seen to sell to persons in the tenement who were drunk, or under the influence of liquor, and in different stages of intoxication. The defendant’s evidence tended to show that he had never made any sale to any person drunk, or to an intoxicated person.</p> <p>The defendant requested the judge to rule and instruct the jury, “that the Words ‘to an intoxicated person’ in clause 4, section 9, chapter 100, Public Statutes, means a person who is so far intoxicated as to be in that condition which constitutes the crime of drunkenness punishable under the laws; that a sale to a person under the influence of intoxicating liquor would not be illegal, unless the person to whom it was sold is shown to have been so far under the influence thereof at the time of the sale as to constitute the crime of drunkenness.”</p> <p>The judge refused to give these instructions, or so to rule, but instructed the jury as follows :</p> <p>“ There would have been a violation of the defendant’s license, if, during the period and on the premises to which his license applied, and during the time alleged in the complaint, it was proved beyond reasonable doubt that the defendant sold intoxicating liquors to a person known by the defendant to be an habitual drunkard, or to a person who was intoxicated in any degree, or to a person who was known to the defendant to have been intoxicated within the six months next preceding such sale ; and the proof of sales to a person or persons of either of these classes would cause defendant’s license to be void, and would support this complaint and warrant a conviction upon it.</p> <p>“ In determining whether there were such violations of his license by defendant, the frequent presence, during the time alleged in the complaint, of drunken persons in or about or near the defendant’s licensed premises would be evidence of circumstances which the jury would have a right to consider in connection with all the other proved circumstances of the case, giving to each of them such reasonable explanations as they admit of, upon the question whether such drunken persons obtained the liquors which caused their drunkenness from the defendant, whereby they were made more or less intoxicated, or when they were known by defendant to be habitual drunkards, or when defendant knew that they were persons who had been intoxicated within the six months next preceding the time of their obtaining intoxicating liquors.</p> <p>“ Defendant’s license would not be violated by one or more sales of intoxicating liquor to a person to whom intoxicating liquor could be lawfully sold under a license, who was in no degree intoxicated at the times of such sales, notwithstanding such sales caused the intoxication of the person to whom they were made; but after that intoxication of that person had in any degree taken effect, the defendant could not continue to sell intoxicating liquor to that person without a violation of the conditions of defendant’s license.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Husband and Wife — Separate Maintenance — Allowance — Attachment of Husband's Real Estate-— Successive Executions— Officer'sReturn — Amendment— Probate Court.</p> <p>If an attachment of a husband’s real estate is made under the Pub. Sts. c. 147, § 36, on a wife’s petition for separate maintenance, the Probate Court, to enforce the payment of an allowance to her for her support, may issue successive executions until the property attached is exhausted, and the attachment will continue until that time; and the levy of such an execution will confer a title good against a grantee of the husband after the attachment.</p> <p>An amendment to the return of the attaching officer, made in accordance with the facts, and to show that a valid attachment had been made, was held to be properly allowed.</p>

<p>Bill in equity, filed March 7, 1889, by the administrator with the will annexed of the estate of Rebecca W. Robinson, against the legatees under the will and the administrator of Jarvis W. Robinson, a deceased legatee, for instructions as to the distribution of the estate. The case was heard bj D evens, J., who reserved it for the consideration of- the full court, in substance as follows.</p> <p>Rebecca W. Robinson died on August 16,1888, leaving a will, dated July 12, 1880, which was, with the exception of parts merely formal, as follows :</p> <p>“ 1. I give, devise, and bequeath all my household furniture, silver ware, books, -and pictures unto my five children, Ellen R. Douglass, Jarvis W. Robinson, Isabel E. Cushman, Arthur B. Robinson, and Adelaide R. Mackreth, share and share alike, and to be divided at their pleasure, by and between them.</p> <p>“ 2. I give, devise, and bequeath all my wearing apparel, my jewelry and China ware, to my three daughters, the aforesaid Ellen R., Isabel E., and Adelaide R., share and share alike, and at their pleasure to be divided by and between them.</p> <p>“ 3. Whereas, two of my children, namely, said Ellen R. and Jarvis W., have already obtained loans in anticipation of what they might hereafter receive in the distribution of my estate, and have given their notes therefor, which I now hold against them, my will is, and I do order, that any such notes, if remaining unpaid at the time of my decease, and also any notes given in renewal thereof, or any further loans or additional notes, both principal and interest due thereon, be taken as a part of my estate to be divided, and that in the division thereof as hereinafter directed, such notes or loans be paid by a set-off betwixt the debt so due to my estate, and the legacy given from my estate.</p> <p>“ 4. I order that all my estate, including the notes or loans named in the third section but excluding those items of personal property mentioned in the first and second sections, be divided into' five equal shares.</p> <p>“ 5. One such share shall be distributed to Ellen R. Douglass and her children as follows: to her daughter, Harriet R. Douglass, two thousand dollars; to her son, Willard R. Douglass, two thousand dollars; and the rest of said share to the said Ellen R. Douglass.</p> <p>“ 6. One of said shares I order to be distributed equally between my son Jarvis W. Robinson and his four children, Gertrude A. Robinson, Willard H. Robinson, Edith J. Robinson, Nelly L. Robinson.</p> <p>“ 7. One of said shares shall be distributed unto Isabel E. Cushman and her child, as follows: to her son, Willard R. Cushman, two thousand dollars, and the rest of said share to the said Isabel E. Cushman.</p> <p>“ 8. One of said shares I give, devise, and bequeath unto my son, Arthur B. Robinson.</p> <p>“ 9. One of said shares shall be distributed unto Adelaide R. Mackreth and her child, as follows: to her daughter, Fanny R. Mackreth, two thousand dollars, and the rest of said share to the said Adelaide R. Mackreth.</p> <p>“ 10. The foregoing division of my estate I make with equal love and affection towards all my children, and in view of all circumstances, believing that it will operate with substantial justice to all of them, and be the best for each and all.”</p> <p>The property of the testatrix, both at the date of the will and at her decease, amounted to about two hundred thousand dollars. This sum, which included the notes and loans referred to in the will, was in the plaintiff’s hands, ready for distribution. Jarvis W. Eobinson at various times until August 16,1886, when he died insolvent, received -loans of money from his father, and, after his father’s death, from his mother, the testatrix, for the support of himself and his four children. These loans, which at the date of the will amounted to ten or twelve thousand dollars, at the time of the testatrix’s death had increased to over twenty-three thousand dollars, and were represented in part by notes given by him to his father and mother. After the death of his father, Jarvis was dependent for the most part on the assistance which he received from the testatrix for the support of himself and family. After the death of Jarvis the testatrix continued to furnish funds for the support of his children so long as they formed one family. Mrs. Ellen E. Douglass in like manner owed about five thousand dollars to the estate of the testatrix.</p> <p>The children of Jarvis contended that the indebtedness from him to the estate should be set off against his proportion of the share devised to him and his children; the other legatees contended that such indebtedness should be deducted from the entire share given to him and his children.</p>

<p>Beneficiary Association — Contract — Beneficiary —• Trust.</p> <p>Under the St. of 1885, c. 183, a beneficiary association may insure a member for his own benefit, in which case the proceeds of the certificate after his death will go to his executor or administrator as a part of his estate.</p> <p>A beneficiary association, organized in 1878 and having no by-laws relating to its contracts with its members, after the passage of the St. of 1885, c. 183, received an application for membership in which the applicant, in reply to the question "Ear whose benefit is this contract made? ” wrote "Myself,” and thereupon a certificate was issued to him on a printed blank, reciting in print that upon his death the proceeds thereof would be paid “ to the executors or administrators of said member, in trust, however, for, and to be forthwith paid over to, his heirs at law.” Held, that the certificate was issued in pursuance of the powers conferred by that statute, and that the proceeds thereof after the member’s death formed a part of his estate to be disposed of under his will.</p>

Contract. The declaration alleged that Edwin R. Burr on March 1, 1864, being then eighteen years old, enlisted in Company E, 58th Regiment Massachusetts Volunteers, and was duly mustered into the military service of the United States during the late civil war, to the credit and upon the quota of the defendant city, and served until he was honorably discharged on July 14, 1865 ; that Edwin R., whose present residence was in New Bedford, had never otherwise gained a settlement…

<p>Credibility of Witness —• Conviction of Crime — Evidence — Malice — Assault.</p> <p>Under the Pub. Sts. c. 169, § 19, evidence of the conviction of a witness of any crime is admissible to affect his credibility.</p> <p>At the trial of an action for an assault upon the plaintiff by the defendant, while he was removing a division fence between their respective estates, it appeared that the plaintiff’s husband claimed a right of way over the defendant’s premises, which the defendant disputed, and, for the purpose of showing malice on the defendant’s part in making the assault, evidence was admitted that he dug a trench across such way, into which the husband, while attempting to pass over it, fell and was injured. Held, that the evidence was improperly admitted.</p>

<p>Libel for divorce, dated April 19,1888, brought by a bus-band against his wife, alleging that in August, 1880, she “ utterly deserted your libellant, and has continued such desertion from that time until the present time.”</p> <p>At the hearing in the Superior Court, before Dunbar, J., the libellant introduced evidence, which was contradicted, tending to show that the libellee deserted him seven or eight years before the date of the libel. There was evidence that the libellee filed a petition to the Probate Court for separate maintenance, under the Pub. Sts. c. 147, § 33, alleging that for justifiable cause she was actually living apart from her husband; that on April 3, 1885, the judge of probate, upon a hearing before him, made a decree that, “ it appearing that the petitioner is living separate and apart from her said husband for justifiable cause,” the husband should pay to her a certain sum each month until further order of the court; that no appeal was taken from this decree; and that it was in force at the time of the hearing, and was being complied with by the libellant.</p> <p>The libellee asked the judge to rule that the decree of the Probate Court was a bar to the maintenance of the libel, but the judge refused so to rule, and granted a divorce nisi to the libellant; and the libellee alleged exceptions.</p>

Bill in equity, filed in the Superior Court on August 20, 1888, to redeem land from a mortgage. The case was heard on the pleadings and an agreed statement of facts, by Blodgett, J., who reserved it for the determination of this court, in substance as follows. The first named defendant, a resident of Germany, is and has been for many years engaged in the business of manufacturing and selling ales, and the other defendant was his attorney and representative.

<p>Rescission of Sale — Conversion—Goods sold and delivered — Amendment by adding Count in Tort — Verdict — Appeal — Filing of Bond.</p> <p>In an action for goods sold and delivered, brought by the seller against the buyer, there was evidence that, after a completed sale of lumber delivered in part at the defendant's farm and in part elsewhere, the parties mutually agreed that the plaintiff should take the lumber away, the portion stored at the farm within a reasonable time and the rest at once; that the bill rendered was destroyed; and that thereupon the plaintiff sold the lumber to a third person, and the defendant appropriated a part of it to his own use. A verdict was returned for the plaintiff, subsequent to which he was allowed to amend his declaration by adding a count in tort for the conversion. Held, that there was a rescission of the sale and a revesting of title in the plaintiff, and that the verdict, improperly returned upon the count in contract, could not be supported by the amendment.</p> <p>In an action in a district court judgment was rendered for the plaintiff, and the defendant appealed and secured an extension of time for filing his bond. Subsequently the plaintiff also appealed, and more than twenty-four hours later, but within the defendant's extended time, filed the usual bond, with sureties, which thereupon was approved. The defendant took no further steps, and the plaintiff entered the appeal in the Superior Court, a trial was had before a jury, and a verdict was returned for the plaintiff, after which the defendant for the first time objected that the plaintiff’s bond was not seasonably filed. Held, that the Superior Court might properly take jurisdiction of the appeal.</p>

Complaint alleging that George W. Ham, at Haverhill, on June 23, 1888, “ unlawfully did keep intoxicating liquor with intent unlawfully to sell the same in this Commonwealth, he, the said Ham, not being authorized to sell the same in said Common wealth for any purpose or by any legal authority whatever.” Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.

<p>Personal Injuries— Master and Servant — Dangerous Machinery — Risks of Employment — Fellow Servant’s Negligence — Evidence.</p> <p>A mine was reached through a vertical shaft by a bucket lowered by the unwinding of a rope from the uncoupled drum of a hoisting-engine and usually controlled in its descent by a brake operated by the engineer. Laborers employed in the mine entered the bucket to descend as usual, and, upon word being given, the engineer started to let it down, but soon found that the brake was not holding. The bucket fell rapidly for many feet, when it was suddenly stopped by planks across the shaft, and the laborers were hurt. In actions against the employer to recover for such injuries, there was evidence that the brake, besides a loss of initial efficiency, was in design and original construction insufficient; that there were safer contrivances for controlling such a descent, some of which the defendant used elsewhere about the mine; and that gearing used in hoisting had, through wear and a change made in it by the defendant, become less useful as a possible means of stopping the bucket if the brake failed to hold, and in fact proved ineffectual to stop the bucket at the time; also that no person had previously been hurt in going down in the bucket. Held, that the cases were properly submitted to the jury, who were warranted in finding verdicts for the plaintiffs.</p> <p>At the trial evidence was admitted that there were other appliances for lowering a bucket than that used by the defendant which would have been safer; that slips on other occasions had been brought to the knowledge of the defendant’s superintendent of the bucket while it was in use in hoisting ores, and, upon the question whether the holding quality of the leather forming the friction surface of the brake had become impaired from the effect of steam upon it, that there was machinery at the foot of the shaft operated by steam and its use, from which steam escaped into the engine-building. Held, that the evidence was properly admitted.</p>

<p>Promissory Note — Signing by Corporation— Corporate Seal — Agent.</p> <p>A promissory note reciting in the body thereof, “ we promise to pay,” but with nothing there to indicate to whom “ we ” referred, bore upon its face, in the usual place of signing, the name “John Roach,” beneath which was written “ Treasurer,” and had in addition the impression stamped upon it of a large circular corporate seal, around the outer edge of which appeared in print, “ New York Skating Rink Construction Company,” and in the centre of it “ Incorporated 1884,” so placed that the circumference passed through the final letter of “Roach” and through the word “Treasurer.” Held, that the note was the note of the company.</p>

Tort against the administrator of the estate of Harrison Garfield, for damage to the plaintiff’s mill property, caused by the bursting of a reservoir dam which was built and maintained by Garfield and others. Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, which, so far as material, is as follows.

<p>Extrinsic Evidence to explain Written Agreement — Contract of Sale — Evidence — Declarations.</p> <p>An agreement in writing recited that it was "understood” between two that one of them was “ to have a warranty deed of the Mansion-House property, and for that reason a certain promissory note” made by the other, who owned the property, and held by the first, " is to be cancelled when the deed is delivered or put on record; otherwise, the note to remain in full force.” On a hill in equity for the specific performance of the agreement, oral evidence was offered of facts and circumstances which tended to show that the “ warranty deed ” referred to was a deed of the property already made, subject to mortgages thereon which the grantee was to assume and pay, by its owner, the maker of the note for the benefit of the holder, and deposited by such owner in the hands of a third person, and that it was upon the delivery of this deed by the third person to the holder that the note was to be cancelled. Held, that the evidence was properly admitted.</p> <p>Declarations of the holder of the note, that the maker said to him, at different times before and after the agreement was executed, that he purposed to give such holder a clear title to the property, were held, to be rightly excluded.</p>

<p>Contract. The original declaration was as follows : “ And the plaintiff says that said Jackson and one Oscar Bar dwell were the owners of a certain tract of land situate in Greenfield in said county, upon which land and constituting" a part of the realty were four ice-houses. And the plaintiff says that in consideration of eleven cows and two horses, which he, the said plaintiff, delivered to said Jackson and which he, the said'Jackson, accepted, he, the said Jackson, bargained and sold to him, the said plaintiff, the said four ice-houses and sundry tools, and further agreed to give him five days’ work with a double team. And the plaintiff says the said Jackson delivered to him the said tools and has performed for him three days’ work with a double team and no more. And the plaintiff says that after-wards the said Jackson and Bardwell conveyed said land and said ice-houses by a good and sufficient deed of warranty to one Caroline M. Boutwell, who has taken possession of said premises, and forbidden the plaintiff to interfere with the same.”</p> <p>Subsequently the plaintiff was permitted to amend his declaration by adding a count upon an account annexed, the only item of which recited that the defendant on December 3, 1886, owed the plaintiff six hundred dollars for eleven cows and two horses.</p> <p>The answer, among other defences, contained the following: “ The defendant says that he had the said cows and horses from the plaintiff under and in pursuance of a special contract by and between the plaintiff and the defendant, which special contract has never been rescinded; that the defendant was engaged in a profitable business, to wit, the business of cutting, storing, and selling ice in Greenfield; that he had a large number of regular customers, and owned certain tools for cutting ice, and certain ice-houses ; that the plaintiff was also engaged in the ice business in said Greenfield, and in consideration that the defendant would withdraw from said ice business and from competition in the same with the plaintiff, and would transfer to said plaintiff the tools and ice-houses aforesaid, and upon request of the plaintiff perform five days’ work with his team for the plaintiff, the plaintiff delivered the cows and horses aforesaid to the defendant, and the defendant did withdraw from the business of cutting, storing, and selling ice and has not since engaged in the same, and did transfer said tools and ice-houses to the plaintiff, and has performed three days’ work with his team for the plaintiff, and has been at all times and is now ready to perform the other two days’ work when requested by the plaintiff, and the plaintiff has never-requested the defendant to perform the other two days’ work, and the plaintiff has had the possession, use, and benefit of the said tools and ice-houses, and of the work performed by the defendant, and of the defendant’s withdrawal from the said business of cutting, storing, and selling ice.”</p> <p>Trial in the Superior Court, before Barker, J., who reported the case for the determination of this court, in substance as follows.</p> <p>On August 12, 1885, Jackson, who had previously erected an ice-house on land adjoining a pond, while in possession of both under a lease, with one Bardwell took from the owner a warranty deed of the land including the pond, in which deed no mention was made of the ice-house. Subsequently Jackson, with Bardwell’s knowledge and consent, erected three additional ice-houses, which with the ice-house already built Bardwell acknowledged to belong to Jackson as his individual property, with the right to remove them. These ice-houses were joined together, and could be removed from the premises without any substantial injury to the freehold. Each was about forty feet long, twenty-five feet wide, and twenty feet high to the eaves; the studding was tenoned to the sills; they were boarded inside and out with cheap spruce boards; the roofs were made of the same material and battened; the sills rested upon thin fiat stones placed from six to eight feet apart, with the exception of one corner where the ground was lower, where there was a low stone wall extending under the sill a few feet, and were in the main a little higher than the surface of the ground, and were banked on the outside with sawdust to prevent the air from circulating under them.</p> <p>On December 3, 1886, Jackson, who for several years had been engaged in the ice business, using the ice-houses therein and getting his ice from the pond, entered into the agreement set out in the answer, in pursuance of which Handforth delivered to Jackson the cows and horses, which were valued at four hundred and fifty dollars, and Jackson delivered to Handforth the ice tools, valued at one hundred and fifty dollars, and performed three days’ work with a double team, and had not been requested to perform the other two. It was also agreed between them that the ice-houses should be the1' property of Handforth, and that he might remove them from the premises. Subsequently, on the same day, Jackson and Bardwell leased the pond to Handforth for the term of five years, “ with the land adjacent thereto on which the ice-houses now stand, and so much land adjacent thereto as may be necessary for cutting, storing, and removing the ice from said pond and ice-houses, with a right of way, to pass and repass, on foot and with teams, at all seasons, from said pond and ice-houses to the highway, over and across the land of the lessors. . . . This lease does not include the ice-houses on said premises, which are the property of the lessee, and the lessors agree may be removed by him, or his executor's, administrators, or assigns, at or before the expiration of this lease or any renewal thereof.”</p> <p>Handforth immediately entered into possession of the premises under the lease, and of the ice-houses, and, except as stated, has continued in possession of them. Jackson ceased from this time to be engaged in the ice business. The sale of the good will of the business was a part of the agreement, and Handforth has had the benefit of such good will. Jackson and Bardwell continued to own the leased premises until June 10,1887, when they ex, ecuted to Caroline M. Boutwell a warranty deed of them, which was subsequently, delivered. This deed did not mention or in any way refer to the lease, or to the ice-houses, or to any rights of Handforth in or to the same. In the summer of 1887, Mrs. Boutwell tore down one of the ice-houses, contending that she had no knowledge of the existence of the lease, or of Handforth’s claim of ownership in the ice-houses, and forbade his removing any of the lumber. The ice-house torn down by her was in a ruinous condition, and not in use at the time, and she did not remove any of the material from the leased premises. At the time when Mrs. Boutwell took her deed, she had actual notice of the lease, and that the plaintiff claimed ownership in the ice-houses, with the right to remove them.</p> <p>Handforth did not contend that he could not have removed the ice-houses at any time between December 8, 1886, and June 10, 1887, and at no time during the trial sought or contended that he had the right to recover damages, as such, for a breach of any part of Jackson’s agreement, but sought only to recover the value of the personal property which he had delivered to him under it, deducting the value of the tools and labor received.</p> <p>The plaintiff asked the judge to rule that the contract set forth in the answer was illegal and void, and could not be set up in defence of his claim; the judge refused so to rule, and, upon the above facts, found for the defendant. If the ruling and finding were correct, judgment was to be entered for the defendant; otherwise, such judgment was to be entered as law and justice might require.</p>

Contract to recover the amount of a tax assessed upon personal property of the defendants for the year 1886. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, in substance as follows. The plaintiff was the collector of taxes in the town of Leverett for that year.

<p>Contract against the defendant, as a surety on a promissory note of which W. M. Hayden was the maker, dated September 7, 1881, payable on demand to Seward and Willard, and bearing the following ‘indorsements: “ Received of W. M. Hayden five dollars, September 7,1881. December 12, 1882. Received ten dollars.” Writ dated September 7, 1887. The answer set up, among other defences, the statute of limitations.</p> <p>The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, in substance as follows.</p> <p>The plaintiff, as surviving partner of the firm of Seward and Willard, the payees of the note, had the legal title to the note. The payments indorsed on the note were made by Hayden without the knowledge of the defendant. Judgment was to be rendered for the defendant if the note is barred by the statute of limitations; otherwise, for the plaintiff.</p>

<p>Tort for slander, in accusing the plaintiff of subornation of perjury. The declaration in various counts alleged, in substance, that Peter Borlin was insured against loss by fire, under a policy issued by an insurance company doing business in this Commonwealth, upon a barn as well as upon a portion of its contents owned by him; that the barn and such contents, as well as three valuable cows belonging to the plaintiff and in the barn at the time, were burned; that after the loss Borlin prepared and rendered to the company a statement in writing, which he signed and made oath to, setting forth the value of the property insured and his interest therein, with other facts required by the company in the policy, in order that he might recover from the company the damage he had sustained; and that the defendant publicly, falsely, and maliciously accused the plaintiff of the crime of attempting or endeavoring to incite and induce Borlin to commit the crime of perjury, by words spoken of the plaintiff substantially as follows: He [meaning the plaintiff] tried to make or get Peter Borlin to swear that the cows owned by the plaintiff which Borlin was keeping for him were his [Borlin’s] cows, so that the plaintiff might get the pay for his cows from the insurance company through Borlin and by means of his [Berlin’s] perjury.</p> <p>At the trial in the Superior Court, before Dewey, J., it also appeared in evidence that the insurance policy referred to in the declaration was in the form known as the Massachusetts Standard Policy, prescribed by the Pub. Sts. c. 119, § 139; and that the defendant spoke the words of and concerning the plaintiff, substantially as alleged.</p> <p>The defendant requested the judge to rule, that, upon all the evidence, the action could not be maintained, inasmuch as the oath to be made, in order to make a “ statement on oath ” as required on proof of loss by the insurance policy, was not an oath which, if falsely taken could subject the person so taking it to punishment for the crime of perjury. The judge declined so to rule, and ruled that, if there was a loss sustained by fire under the policy by Borlin, and the provisions of the policy relating to the manner of proving the loss by a statement on oath had not been waived by and were required by the insurance company, such an oath as would be required for the proof of loss under the policy was an oath required by law, within the meaning of section 2 of chapter 205 of the Public Statutes, and, if falsely taken, would subject the person so taking such false oath to punishment for the crime of perjury.</p> <p>The jury found for the plaintiff; and the defendant alleged exceptions.</p>

Complaint, on the Pub. Sts. c. 100, § 30, alleging that, on January 10, 1889, certain- intoxicating liquors, “ and divers implements of sale and furniture used and kept and provided to be used in the illegal keeping and sale of said liquors,” were kept and deposited by Patrick Libbey, of the city of Lawrence, “in a certain tenement situate on Essex Street, and numbered 136 on said street, in Lawrence, in said county, and occupied by said Libbey as a place of common resort…

<p>Contract by the administrator de bonis non of the estate of Frederick B. Bridgman, against the administrator of the estate of Eugene Bridgman, upon the following instrument:</p> <p>“$126.00. Belchertown, July 19, 1873. For value received, I promise to pay F. B. Bridgman’s estate, or order, one hundred and twenty-six dollars on demand, with interest annually. Eugene Bridgman. Witness: A. Bridgman.”</p> <p>Writ dated March 13,1886. The answer set up, among other defences, the statute of limitations.</p> <p>At the trial in the Superior Court, before Blodgett, J., without a jury, there was evidence that the above instrument, which was offered in evidence, was duly signed by the defendant’s intestate in the presence of the attesting witness; that before July 19, 1873, Frederick B. Bridgman had deceased, and administrators of his estate had been appointed; that before the date of the plaintiff’s writ, such administrators had died; and that the plaintiff was duly appointed administrator of the estate.</p> <p>The judge ruled that the instrument was not a witnessed promissory note, within the meaning of the statute, and was therefore barred by the statute of limitations, and found for the defendant; and the plaintiff alleged exceptions.</p>

Writ of ENTRY to recover an undivided eighth part of a parcel of land in Easthampton. Plea, nul disseisin. Trial in the Superior Court, without a jury, before Aldrich, J., who allowed a bill of exceptions, in substance as follows.

<p>Deed—Covenant of Warranty — Mortgage — Assumption by Grantee.</p> <p>A deed of land to S. recited that the grantor was seised in fee of the “granted premises, that they are free from all incumbrances, except two mortgages, . . . which mortgages said S. assumes and agrees to pay,” and contained a covenant “ to warrant and defend the same ” in the usual form. Held, that the covenant of warranty applied to the grantor’s equity of redemption only, and that the grantor, upon non-payment of one of the mortgages and its foreclosure, did not become liable to the grantee for breach of that covenant.</p>

<p>Indictment for obstructing a highway in Chester. At the trial in the Superior Court, before Sherman, J., the following facts were agreed.</p> <p>The road, of which the alleged highway in question was a part, extended in a generally easterly direction from Blandíord to Chester, but from the top of Smith Hill, so called, in Chester, it ran in a direction somewhat north of east until, after crossing the defendant’s railroad at grade, it joined the old Springfield and Albany turnpike road, which at that point was east of the railroad and parallel with it, and connected Chester Factories and Huntington. In 1855 a petition was filed with the county commissioners, alleging that the highway in question, called therein the “ east road,” and described as leading from Blandford to Chester Factories, “is hilly and rough at the north end; that public convenience requires an alteration to be made in said road, commencing at the top of Smith Hill, so called, in Chester, thence running in a northeast direction until it intercepts the road leading from Chester Factories to Huntington,” and praying the commissioners “ to view the premises and take such action as the public good requires.” After due proceedings had upon this petition, the commissioners granted the prayer of the petitioners, and located a new piece of road, forty rods and eight links in length, by the following order: “ Commencing at a stone monument on the westerly side of the old Springfield and Albany turnpike road, then running ” south and west by various courses and distances “ to a stone monument on the northerly side of an old road. . . . The first course is six rods wide at the commencement, and three at the end, with straight side lines, and the remainder of the highway is three rods wide.” In accordance with this order, the new piece of road was built, diverging from the old road on the top of Smith Hill, where was placed the “stone monument on the northerly side of an old road ” referred to in the order, and, after running somewhat more north of east than the old road and crossing the defendant’s railroad again at grade, it formed a new junction with the turnpike road at the “ stone monument on the westerly side ” of it, at a point nearer Chester Factories by about thirty rods than the old junction. About January 1, 1885, the defendant erected upon its own land a fence across the old road, at its junction with the turnpike road, which fence was the obstruction complained of.</p> <p>At the time the new piece of road was built, the railroad a,t the old crossing was planked, its rails were guarded, and a signboard of warning was there placed across the old road, all of which continued for many years afterwards. The town of Chester kept the old road in repair for ten years after the building of the new road, and travellers continued to pass and repass along the old road to and across the defendant’s railroad until the fence referred to was built. One Smith, whose shop was upon the turnpike road nearly opposite its junction with the old road, had within ten years bought land upon the old road and erected a dwelling-house upon it, and by reason of the obstruction in question was obliged to go around by the new road to reach his shop, and to go to either Chester Factories or Huntington.</p> <p>The judge ruled, as matter of law, that the proceedings of the county commissioners and their adjudication, and the construction of the new road in accordance therewith, did not discontinue the old road, and, after the defendant had consented to a verdict of guilty, reported the case for the determination of this court.</p> <p>If the ruling was incorrect, the verdict was to be set aside, and judgment was to be entered for the defendant; otherwise, the verdict was to stand.</p>

Tort. The declaration, which contained two counts, both alleged to be for the same cause of action, was as follows: “ First Count.

<p>Insolvent Debtor — Deposit by Creditor to cover Fees — Repayment.</p> <p>A creditor, upon commencing insolvency proceedings against his debtor, made the deposit required by law for the payment of fees with the register of insolvency, but never obtained an order of court for its repayment. The assignee had no knowledge of the deposit until after final distribution of the funds in his hands had been ordered and nearly completed. Held, that the assignee was not liable to the creditor for the amount of the deposit.</p>

Tort. The declaration, which was in three counts, alleged, in substance, that the plaintiff was a hack man, and was employed in carrying a passenger to the station of the defendant at its terminus in Springfield; that while the passenger was in the act of alighting from his carriage to go to the station of the defendant and take her train, and while the plaintiff was in the exercise of due care, the defendant so carelessly and negligently managed its trains and engines that…

<p>Bequest in Trust —■ Exercise of Discretion by Trustee — Removal.</p> <p>A testator, by his will, bequeathed various small sums of money in trust to the same trustee, one of which was to be paid to a son, “ as by sickness or other misfortune he may need the same, provided, moreover, that any and all such pay'ments shall be left entirely to the good judgment of the said trustee,” any unexpended balance thereof at the son’s death to go to the trustee and his heirs. ,The son, who himself continued in good health, because of sickness and death in his family incurred unusual expenses,' and applied to the trustee for a sum less than the fund, being unable otherwise to meet such expenses without a sale or mortgage of his homestead. The trustee, who was unfriendly to him as well as influenced by his pecuniary interest, refused to help him, on the ground that he was entitled to assistance only for a misfortune personal to himself. Held, that the trustee should be directed to pay to the son the amount of such expenses, but that he need not be removed.</p>

<p>Complaint for keeping and maintaining a common nuisance, to wit, a tenement in Milford used for the illegal sale and illegal keeping for sale of intoxicating liquors, from November 1 to November 20, 1888.</p> <p>• At the trial in the Superior Court, on appeal, before Brigham, C. J., there was evidence that the defendant had a license as an innholder. The defendant introduced in evidence a license of the first class, which certified that “ the board of selectmen of the town of Milford have granted a license to John Stratton, doing business at Lincoln House, Memorial Hall Square, to sell, or expose or keep for sale, until May 1st, 1889, spirituous or intoxicating liquors to be drunk on the premises.”</p> <p>The judge, against the defendant’s objection, “ ruled and instructed the jury, that the last named license would not constitute a valid defence to the complaint, because the room or rooms in the Lincoln House, the place covered by the license, in which liquor might be kept, was not duly specified in the license.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Master and Servant — Negligence — Defective Machinery — Dmployers> Liability Act — Cumulative Remedy — Statutory Notice.</p> <p>The St. of 1887, c. 270, § 1, cl. 1, giving to an employee exercising due care a right of action for an injury caused by “ any defect in the condition of the wayo, works, or machinery connected with or used in the business of the employer,” arising from the employer’s negligence, or that of any one in his service intrusted with the duty of seeing that such ways, works, or machinery are in proper condition, is not a bar to an action at common law, brought by an employee for personal injuries caused by a defect in such machinery, for which such an action might have been maintained before the passage of that statute.</p> <p>The notice required by the St. of 1887, c. 270, § 3, so far as applicable to a cause of action under § 1, cl. 1, applies only to cases, if any, within that clause, in which there is no common law right of action, unless a plaintiff with a remedy at common law should insist upon relying upon the statute alone.</p>

Two complaints, each dated June 20, 1889, to a trial justice in and for the county of Norfolk, in the first case for drunkenness, and in the second case for a breach of the peace.

Two ACTIONS, alleged in the writ to be in contract or tort, to recover damages sustained by the refusal of the defendant corporation to recognize as valid certain shares of stock held by the plaintiffs, or to allow them to be transferred, and to issue new certificates therefor. The cases were submitted, on agreed facts, to the Superior Court, and, after judgment in the first case for the plaintiff, and in the second case for the defendant, to this court, on appeal.

<p>Promissory Note — Street Railway Corporation — Authority of Treasurer.</p> <p>A stock-broker, who was the treasurer of a street railway corporation, wrote to a customer that she could lend the proceeds of bonds sold by him for her to the corporation, and she told him that she would so lend a part thereof to it, and left the amount in his hands, receiving from him therefor a note made in its name by him alone as treasurer. She was ignorant of and made no inquiries as to its by-laws, which provided that he could sign notes only as the directors might require, which notes, to bind the corporation, were to be countersigned by the president, but acted in good faith, believing that he also acted honestly and had authority to make the loan and to give a note therefor binding upon the corporation. The treasurer, who had no such authority in terms, and was a defaulter, used the loan to cover up his defalcation by paying debts of the corporation. Held, that the customer could not recover against the corporation, either upon the note, or for money had and received.</p>

The first ease was a bill in equity, filed January 24, 1887, by Somerville P. Tuck against Jerome F. Manning and John Noble, to reach and apply in payment of a debt due from Manning to Tuck the interest of Manning in certain funds paid by the plaintiffs in the second and third cases to Mr. Noble as clerk of this court, and still held by him, and the second and third cases were bills in equity pending in this court, in each of which petitions were filed by Tuck, on February…

<p>Personal Injuries — Defect in Way— Contributory Negligence — Exceptions.</p> <p>An action cannot be maintained against a town on the Pub. Sts. c. 52, § 18, to recover for personal injuries resulting from a defect in a highway, where the injuries resulted directly from the plaintiff’s negligence as well as from the defect, if it cannot be determined what part of the injuries was caused by either, or that any substantial injury would have been received but for such negligence.</p> <p>At the trial of such an action there was evidence tending to prove that the plaintiff, while riding with her husband in a sleigh, was violently thrown from her seat, in consequence of a defect in the highway, upon an iron brace of the sleigh, which had been broken or loosened, and which projected upwards eight or ten inches from the side of the sleigh, and was thus injured. The presiding judge refused to instruct the jury, as requested by the plaintiff, that “in this case there was a distinction between accident and injury, and if the broken or loosened brace was not a contributing cause to the plaintiff’s being thrown from the sleigh, but only contributed to the injury received, she could recover,” but instructed them that, if the brace made the sleigh unsafe, and was a contributing cause of the injury, and if its condition would have been discovered by the plaintiff when she started on her journey if she had exercised reasonable care, then she could not recover, whether she knew of its condition or not, and, no specific exception being taken thereto and no other requests being made, submitted the case without objection to the jury, who returned a verdict for the defendant. Held, that the plaintiff had no ground of exception.</p> <p>A point not taken at the trial is not open upon a bill of exceptions.</p>

<p>Indictment on the Pub. Sts. c. 102, §§ 120-122,* in eight counts, alleging that the defendant on June 24, 1888, and at other times, at the town of South Hadley, in the county of Hampshire, “ did run a steamboat for the conveyance of passengers in and upon the waters of the Connecticut River at said South Hadley, such waters not being then and there within the maritime jurisdiction of the United States, and did then and there land and receive passengers from and upon said steamboat in and within the town of South Hadley aforesaid, without then and there first obtaining any license or authority from the selectmen of said town of South Hadley to run said steamboat for the conveyance of passengers as aforesaid, and not then and there having any license or authority therefor.”</p> <p>In the Superior Court, before the jury were impanelled, the defendant moved to quash the indictment, for the following reason, among others: “ 4. Because it is not alleged in said indictment, or in any count thereof, that said defendant carried said passengers as aforesaid for hire.”</p> <p>Brigham, C. J., overruled the motion, and the defendant excepted.</p> <p>At the trial there was evidence tending to show that at the times alleged in the indictment the defendant carried persons to and from the city of Holyoke and a landing at a point above high-water mark about one and a quarter miles above the dam at Holyoke, on the east side of the river, alleged to be within the limits of the town of South Hadley, in a steamboat of which he was in possession; and that on June 24, 1888, the defendant collected fares of twenty-five cents from each person on board of the steamboat for the “ round trip,” including the right to enter a grove leased by the defendant, to which grove the persons went from the landing place. Among other evidence for the purpose of proving that the point at which the boat landed was in South Hadley, “ a map of the State of Massachusetts, purporting to be made 6 by order of the Legislature in 1844, Simeon Borden, Superintendent,’ was introduced in evidence, subject to the defendant’s objection.”</p> <p>It was admitted that the defendant had not obtained any license from the selectmen of said South Hadley to run the steamboat.</p> <p>The judge refused to rule and instruct the jury, as requested by the defendant, among other things, as follows:</p> <p>“ 3. That there is no evidence that the Connecticut River between Springfield and Hadley is not within the maritime jurisdiction of the United States, and the defendant must be acquitted.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Will — Next of Kin—Blood Relations.</p> <p>A testatrix, whose father survived her, put her entire estate in trust to secure his support during life provided he should remain unmarried and himself contribute thereto, directing the trustee, if the income and his contribution were insufficient therefor, to use the principal for that purpose; she also gave him a small annuity; in case of his remarriage she ordered her estate at once to be distributed “ as if my father were deceased ”; at his death or remarriage she provided for the payment of various legacies, and for the creation of several trust funds, one of which at the beneficiary’s death was to go to her next of kin, share and share alike; subject to these gifts and trusts, she gave one third of the residue of her estate to her husband’s next of kin, and two thirds to her own, “the larger part to my next of kin; as from my family and loin my estate has been in this proportion enlarged.” Numerous blood relations of the testatrix and of her husband survived the father, who never remarried, and, after the payment of the legacies and setting apart of the trust funds, there remained a substantial residue to be distributed. Held, that the next of kin, both of the testatrix and of her husband, were to be ascertained as of the time of her father’s death; and that by next of kin was meant the nearest blood relations of her husband and of herself living at that time, or the legal representatives of any since deceased.</p>

<p>Composition with Creditors — Promissory Note — Discharge of Surety.</p> <p>A composition agreement, under seal, which never took effect because not signed by all the creditors, without which signing by its terms it was not to be binding, contemplated the debtor’s release upon the payment of a certain percentage of the debts on or before a certain date, and was signed, among other creditors, by the payee of a promissory note made by the debtor as principal and by another as surety. Held, that no agreement to give the debtor time, such as would discharge the surety, could be inferred.</p>

Two trustee processes. George D. Robinson, administrator of the estate of Edward J. Vinton, was summoned as trustee in each case. The cases were tried in the Superior Court, without a jury, before Dewey, J., who reported them for the determination of this court. The material facts appear in the opinion.

Contract to recover the amount of certain taxes on personal property, paid under protest. The case was submitted to the Superior Court on an agreed statement of facts, which, so far as material, is as follows. The plaintiffs are building contractors, doing business under the firm name of Norcross Brothers, with a principal place of business in Worcester, and with stone yards in that city and in Boston, where they cut and deal in stone.

<p>Execution — Sale of Land —Abandonment of Levy — Alias Execution.</p> <p>An execution was put into the hands of an officer and duly levied by a sale of land, but the purchaser, who paid down part of the price, was unable and refused to pay the balance or to take the deed. Afterwards the creditor and the officer abandoned the levy; the proceedings thus far were treated as a nullity; and the execution was handed back to the creditor’s attorney with no return upon it. The sixty days from the date of the execution having elapsed, the attorney in good faith indorsed upon it a certificate that it had never been in the hands of an officer and was unsatisfied, whereupon an alias execution was issued, on which the land was again sold. Held, that the alias execution was valid, and the sale under it'conveyed a good title; and that the first purchaser was entitled to have his money back.</p>

<p>Tort for an injury caused by the overflow of a common sewer through a connecting drain into the plaintiff’s cellar.</p> <p>At the trial in the Superior Court, before Staples, J., the plaintiff’s evidence tended to prove that the sewer in question was duly built in a street of the defendant city in 1881; that the plaintiff, in 1884, duly laid a private drain from the bottom of the cellar under his shop, which was situated on that street, and connected it with the sewer for the purpose of draining his cellar: that the drain, which was constructed with a proper fall, consisted of a cement pipe, untrapped, and with the end in the cellar left open at grade with the bottom of the cellar, and with nothing to prevent the flow of water from the cellar into the drain, or to prevent the influx of sewage from the sewer through the drain into the cellar; and that, in 1887, sewage and water from the sewer flowed through the drain into the cellar, and filled it to a height of several inches above the opening of the drain, causing damage to the plaintiff’s property therein.</p> <p>Charles A. Allen, an hydraulic engineer and the city engineer of the defendant city, who was admitted to have had a large experience in the construction of sewers and waterworks, was asked the following question: “ Suppose a cellar is dug where the shop of the plaintiff is, and of the depth described; suppose the premises to be constructed as plaintiff testifies to, is it proper construction to leave an open sewer pipe at the cellar end, as was done in this case ? ” The witness was permitted to answer the question, against the plaintiff’s objection, and replied, “No, sir, I do not consider it proper ”; and the plaintiff excepted. The judge thereupon directed the jury to answer specially whether the plaintiff was negligent in leaving open the end of the drain pipe in the cellar at grade.</p> <p>The jury answered the question in the affirmative, and returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tobt for an assault and false imprisonment. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows.

Contbact in three counts, by Francis R. Abbott, Charles Kee, and William B. Kempton, against Herbert L. Hapgood and Alvord Smith, “ late copartners under the name of Hap-good and Smith,” to recover damages for the breach of agreements to furnish certain match machines and match splints.

Bill in equity, filed in the Superior Court, on April 11, 1889, to prevent the removal by the defendants of any fence built by the plaintiff across a way alleged by them to exist over his land in Worcester, and to recover damages for the removal by them of an existing fence.

Tort. The first count of the amended declaration was for damages caused by the alleged misconduct of the defendant in conducting a sale under a foreclosure of a mortgage of personal property given to him by the plaintiff; the third count was for a conversion of part of the property sold, which it was alleged was not covered by the mortgage. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, which, so far as material, is as follows.

Tort. The declaration alleged, in substance, that the plaintiff, in a former action brought by him against the defendant for the conversion of a derrick, recovered judgment for the value of the derrick only, which judgment Was satisfied; that by a mistake he failed to aver and claim in that action certain special damages which resulted from the conversion, namely, the loss of profits from a valuable contract which he had, and which was thereby seriously interfered with, and…

<p>Prívale Way — Deed — Evidence.</p> <p>The entry upon and continued occupation of land, and the use of a way as appurtenant thereto, under a warranty deed purporting to convey the land and the right of way as appurtenant to it, are some evidence of title to the one, and of a right to use the other, against one who shows no right to interfere with such use.</p> <p>In an action to recover damages for changing the grade of a private way opposite the plaintiff’s land, there was evidence that a deed of the land to the plaintiff’s wife, to whose title he had succeeded, purported to give her a right of way in such way; that she entered immediately into possession under the deed, and with the plaintiff had occupied the land, and with others had used the way ever since; that deeds to the defendant and others bounded them upon such private way; and that the defendant, although his deed gave him no specific right in the way, had always used it for thirty-three years in common with others who had a right to use it. The presiding judge at the trial refused to rule, as requested by the defendant, that, as it did not appear that the grantor of the plaintiff’s wife had any right in or to such way at the time he gave the deed to her, the evidence was not sufficient to justify a finding that the plaintiff had any right of way in such way. Held, that the defendant showed no ground of exception.</p>

<p>Bill in equity, filed in the Superior Court on November 28, 1887, by the collector of taxes of the city of Newburyport, against the defendant corporation, and Elisha P. Dodge, Henry B. Little, John L. Dodge, and Eben Sumner, its president, treasurer, and directors, to compel them to pay to the plaintiff the amount of a tax assessed upon the corporation by the city for the year 1884. After the former decision, reported 148 Mass. 226, the case was heard on the report of a master, by Hammond, J., who ordered the bill to be dismissed; and the plaintiff appealed to this court. The material facts appear in the opinion.</p>

<p>Two ACTIONS OF contract on the covenant against incumbrances in two deeds from the defendants to the plaintiff, each conveying an undivided half of a lot of land in Orange. After the former decision, reported 146 Mass. 70, the cases were tried together in the Superior Court, without a jury, before Barker, J., and were, so far as material, as follows.</p> <p>In 1865 one Carpenter, who then owned the plaintiff’s lot, acquired title to land lying to the west of it, called the Pomeroy lot.' The Emory lot, so called, upon which was a well or spring, was situated northeast of the plaintiff’s lot. At that time a pipe was laid from this spring underground through and across the plaintiff’s lot, and extended into the Pomeroy lot, and had supplied a dwelling-house upon the latter with water since 1838. No grant by deed or conveyance was ever made by the owner of the Emory lot of a right to take water from the spring to supply the Pomeroy lot, and no right by prescription was ever gained so to supply it. In 1866 Carpenter conveyed the Pomeroy lot by a warranty deed, in which no mention was made of the water or of the pipe, although at the time the water still ran through it, with his knowledge, and so continued until he died seised of the plaintiff’s lot. Subsequently the defendants acquired title to the plaintiff’s lot, and in 1880 she in good faith and for value took from them warranty deeds covenanting against incumbrances. At that time the pipe was entirely buried in the ground, so that its existence and use in conveying water to the Pomeroy lot were not apparent, and the plaintiff had no knowledge thereof at the time of the conveyance to her. In May, 1885, the supply of water from* the Emory spring to the Pomeroy lot, which had continued up to that time, was cut off, and in November of the same year the house on the lot was connected with a pipe in the adjoining street, and since that time has been supplied from that source.</p> <p>The judge ruled that the plaintiff was entitled to recover, and found for her in each case, and reported the cases for the determination of this court. If the ruling was correct, judgment was to be entered upon the finding; but if no right to maintain the pipe in the plaintiff’s lot passed to the grantee of the Pomeroy lot, by implication, by the deed from Carpenter to him, and no incumbrance on the plaintiff’s lot was created thereby, judgment was to be entered for 'the defendants.</p>

Complaint for keeping, on December 22, 1888, at Milford, intoxicating liquors with intent unlawfully to sell the same in this Commonwealth.

Two complaints for keeping, at Milford, intoxicating liquors with intent unlawfully to sell the same, on October 16 and November 12, 1888, respectively. At the trial of the cases in the Superior Court, before Brigham, C. J., there was evidence tending to show the following facts.

<p> Attachment of Hay—Married Woman. </p> <p>Hay in a barn on a farm may be attached in an action at law against its owner.</p> <p>A married woman owned a farm, as well as certain personal property thereon, and lived with her husband upon it. The husband, by her consent, carried on the farm in his own name, on his own account, and for his own benefit, in the ordinary manner of conducting a farm, having in connection with it the use of such personal property, and while so carrying it on raised and gathered a quantity of hay. Held, that the hay was the property of the husband, and was liable for his debts.</p>

Libel for a divorce, filed February 13, 1889, in the Superior Court in and for the county of Worcester, by a wife against her husband, for adultery. Hearing before Blodgett, J., who allowed a bill of exceptions, which, so far as material, is as follows. The parties were married at Fitchburg, in the county of Worcester, on May 22, 1873, and lived there together as husband and wife until April, 1886, in which month the libellee went to Quincy in the county of Norfolk to work.

<p>Fixtures—Mortgage of Personal Property — Replevin.</p> <p>The owner of machinery attached it to his factory, which with the land under it was already subject to a mortgage, and subsequently mortgaged the machinery as personal property. The mortgagee, having foreclosed the mortgage upon the machinery for breach of condition, replevied it from a third person who had acquired possession of it, but who did not claim title to it under the mortgagor, or anybody else. Held, that a finding was warranted that the machinery was personal property belonging to such mortgagee, and that he could maintain the action of replevin.</p>

<p>Two ACTIONS OF CONTRACT, the first upon a bond, given by the defendant Shea as principal and by the other defendants as sureties, to prosecute an appeal from a judgment rendered by the Third District Court of Southern Worcester in favor of the plaintiff, in an action brought by him against Shea; and the second upon a bond, signed by Shea as principal and by the defendant as surety, to dissolve an attachment in the same action. The eases were tried in the Superior Court, before Dewey, J., who allowed in each a bill of exceptions, in substance as follows.</p> <p>The appeal-in the original action from the district court was duly entered in the Superior Court, and judgment there rendered for the plaintiff, whereupon an execution issued, which was returned as wholly unsatisfied by Shea within thirty days from the entry of such judgment. The record of the district court in the original action, signed by the justice of that court, contained the following:</p> <p>“The plaintiff appears and enters his action; the defendant also appears and for plea says he does not owe, as set forth in said plaintiff’s said writ, and thereof puts himself on trial; upon which plea issue being joined, the further hearing is continued from term to term till the fifth day of November, A. D. 1884, when, the parties being fully heard and understood, it appears to the said court that the plaintiff’s declaration is proved, and that the defendant does owe in manner and form as the plaintiff declares. It is therefore considered by the said court, that he, the said John Miller, recover against the said Timothy Shea the sum of thirty-one dollars and forty cents, damage, and the costs of suit, taxed at twenty-one dollars and two cents. From which said judgment against him the said Timothy Shea appeals to the Superior Court, . . . and gives bond with sufficient sureties, ... to prosecute his said appeal with effect, and pay all such costs as may arise after the appeal, in thirty days after judgment.”</p> <p>The bond to prosecute the appeal was in the usual form, and was dated November 8, 1884, and, together with the bond to dissolve the attachment, which was dated September 19,1884, was filed in the Superior Court on November 10, 1884.</p> <p>The defendants contended, and asked the judge to rule, that the appeal bond was not seasonably given, and that the Superior Court never had jurisdiction of the original action; that the judgment was erroneously rendered, and the condition of this bond had not been broken; and that this action could not be maintained. The judge declined so to rule, and directed a verdict for the plaintiff; and' the defendants alleged exceptions.</p>

<p>Tort for personal injuries occasioned to the plaintiff by falling down a flight of steps leading from the street to a tenement which he occupied, and which was let to him by the defendant.</p> <p>At the trial in the Superior Court, before Blodgett, J., there was evidence that the steps afforded the only means of access from the street to the tenement; that there was a platform at the head of the flight of steps; and that on the evening of October 11,1888, the plaintiff in going to his tenement stepped upon a loose board or plank in the platform, which tipped up and threw him down the steps, causing the injuries. It was admitted that the record title to the tenement was in the defendant’s wife.</p> <p>Upon the question whether the plaintiff was the defendant’s tenant, there was evidence tending to show that, in November, 1887, the plaintiff called upon the defendant, and asked him if he had a tenement to let, and that the defendant said, “ Yes,” and gave the plaintiff the key to the tenement in question, which the plaintiff afterwards occupied; that, in talking with the defendant about repairs to the tenement, the defendant said that he should not do much in the way of repairs, because he intended to make a change in the building; that the plaintiff paid the rent in full for each month, from December 1, 1887, to October, 1888, to the defendant, who nearly always gave receipts therefor in his own name; that after the accident the plaintiff told the defendant that he had been injured, and, although no claim for damages was made, the defendant said that, if it was anything he was to blame for, he was ready to make it right, and that he would see the plaintiff again about it. The defendant testified that he never told the plaintiff that his wife owned the premises ; that he let them at her request, and as her agent, and was accustomed to collect the rent "and give receipts therefor in his own name; that he and his wife used the money so collected by him for her in common ; that he did not keep it distinct from his own money, but sometimes paid it to her, and sometimes deposited it in the bank in his own name, and used it in his business. The defendant did not call his wife as a witness.</p> <p>There was no evidence that the defendant had actual knowledge of the defect in the platform before the accident; but there was evidence that at the time of the accident the steps and platform were in the same condition and in the same place as when the plaintiff hired the premises; that in the summer of 3888 the defendant was notified that the steps were out of repair and dangerous; and that the defendant passed over the steps from time to time when he went to the building to collect the rent and for other purposes.</p> <p>The defendant asked the judge to rule as follows:</p> <p>1. “ That the plaintiff could not maintain his action, on the ground that there was no evidence from which the jury would be authorized to find that the defendant was the landlord of the plaintiff at the time of the injury.”</p> <p>2. “If there was any defect in the platform or stairway, knowledge of that defect must be brought to the knowledge of the defendant before he can be charged with any liability therefor. If the jury find that there • was such a defect, but that it was not known to the defendant at or previous to the accident, then they must find for the defendant in this action.”</p> <p>8. “ The obligation of the landlord to repair common ways and passages has not been extended so far as to require a reconstruction of the ways on a different plan, if the ways as they existed when the premises were hired were not altogether convenient or safe by reason of some fault in the original plan which was apparent.”</p> <p>The judge refused so to rule and to give the instructions requested, and instructed the jury, in substance, that it was the duty of the defendant to use reasonable care to keep the platform and steps in proper condition, and that he would be liable, although he had no actual knowledge of the defect, if the plaintiff was injured solely because of the defendant’s failure to use reasonable care to keep the steps in proper condition; and submitted the case to the jury, with other instructions not excepted to, except as they were inconsistent with those requested and refused.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Equitable Attachment — Widow’s Right to Dower.</p> <p>A widow's right to have dower assigned to her out of the lands of her deceased husband cannot be attached or taken on execution in an action at law.</p> <p>The creditor of a widow who is entitled to dower which has not been assigned to her, and who is in occupation of the lands of her deceased husband under the Pub. Sts. c. 124, § 13, may maintain a bill in equity, under the Pub. Sts. c. 151, § 2, cl. 11, as amended by the St. of 1884, c. 285, to reach and apply in payment of his debt her right to have her dower assigned to her out of such lands.</p>

Complaint, dated March 1, 1888, under the bastardy act, Pub.

<p>Complaint for keeping and maintaining a common nuisance, to wit, a certain tenement in Brockton for the illegal keeping and illegal sale of intoxicating liquors. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence that the tenement in question was a dwelling-house, owned by the defendant and occupied by him and his family; that between this dwelling-house and another building on the same street was an alley about twelve feet wide, common to both and extending their entire depth; that there were three doors opening into the alley from tenements in such other building, and one from the defendant’s dwelling-house; and that there was a lumber yard in the rear of and at some distance from the dwelling-house, to which there was access from the alley. A police officer testified, for the government, that on Sunday and Monday, February 4 and 5, 1889, he saw several men, at different times, carrying bottles from the alley to a crowd of men in the lumber yard; that some of these men drank from the bottles, and. subsequently there were signs of intoxication in the crowd; that he did not know in any instance what was in the bottles, nor could he see from which of the tenements or doors leading into the alley the men who brought the bottles to the crowd came, or that they passed into or from either of the doors, or either of the tenements , that on Monday evening police officers searched the defendant’s tenement; that the dining-room was sheathed on all sides with wood to a height of from three to four feet from the floor; that a piece consisting of four boards of this sheathing was found to be loose; and that upon removing them a hollow place was disclosed in which were found concealed two two-gallon jugs, one full and the other partly full of whiskey, a pitcher with from a pint to a quart of .whiskey, two tunnels, one of which was wet, and also an empty jug smelling of whiskey.</p> <p>The defendant requested the judge to rule as follows:</p> <p>“1. That the mere possession of intoxicating liquor in a dwelling-house would not authorize the jury to find that it was kept with intent to sell. ... 3. That upon all the evidence in this case the defendant cannot be legally convicted of the offence charged in this complaint.”</p> <p>The judge declined to make the third ruling, but gave the first request, with this modification : “ that the mere possession of intoxicating liquor in a dwelling-house would not authorize the jury to find that it was kept with intent to sell; but the fact that such dwelling-house is a place of common resort, or that a stock of liquors was kept there, and the circumstances under which the stock of liquors was kept, would be evidence for the jury upon the question whether such stock of liquors was kept for use in the defendant’s family, or as merchandise for sale.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Writ op ENTRY, dated March 16, 1889, to recover a parcel of land in Abington. Plea, nul disseisin. At the trial in the Superior Court, before Hammond, J., the jury returned a verdict for the tenant; and the demandant alleged exceptions, which appear in the opinion.

<p>Arrest — Police Officer de Facto and de Jure — False Imprisonment.</p> <p>A person who assumes to arrest another for a crime, and attempts to justify such arrest as properly done by him as a police officer, must show not merely that he was an officer de facto, but that he was duly and legally qualified to act as such officer.</p> <p>In an action for false imprisonment, where the defendant justified his arrest of the plaintiff on the ground that it was properly made by him as a police officer, there was evidence that he met the plaintiff, and said to him, “I am a police officer, and I arrest you ” for an offence named by him, and that he made a return upon a warrant issued upon a complaint subsequently made by him against the plaintiff for that offence, which return recited the arrest, and was signed by him as a police officer. Held, that there was no evidence sufficient to warrant a finding that the defendant was a police officer.</p>

Contract by the administrator de bonis non, with the will annexed, of the estate of John Joslin, against Charles H. Rhoades, guardian of Ellen M. Joslin, wife of the testator, to recover a balance of the proceeds of a sale made by him as guardian of certain real estate devised by the will for her benefit. Ellen M. J. Carter was admitted as a claimant of the fund, under the St. of 1886, c. 281.

<p>Tort for the conversion of one share of stock of the defendant, a Kansas corporation. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts, in substance as follows.</p> <p>The plaintiff purchased the share in question of Jeremiah P. Jones, the executor of the will of Allen H. Goss. The will, which was duly admitted to probate on September 18, 1882, after a provision for the payment of debts and for the support of the testator’s wife during her life out of the estate, and various pecuniary legacies to each of his daughters and grandchildren, contained the following provisions:</p> <p>“ Fifth. The residue of my estate, after the payment of the debts, legacies, and expenditures before stated, I devise to remain and accumulate until the decease of my said wife, and upon her decease it is my will that whatever estate shall then remain, whether of the original amount or of its accumulations, if any, shall be equally divided between my two daughters aforesaid, to hold to them and their heirs forever.</p> <p>“ Sixth. I appoint Jeremiah P. Jones, of Georgetown, executor of this my last will and testament.”</p> <p>The widow of the testator is living. The share in question! was purchased by the executor with the funds of the estate, and was held by him under the provisions of the will. The executor executed and delivered to the plaintiff a formal assignment of such share upon the back of the certificate, in accordance with the defendant’s by-laws, which provide that the shares of its capital stock shall be transferable only on the books of the company in person, or by attorney duly authorized, at their office in the city of Boston, on surrender of the stock certificate. The share in question was sold by the executor to the plaintiff for the purpose of making a change of investments for the benefit of the trust described in the will; and the defendant had notice of this purpose at the time the plaintiff demanded the transfer to be made to him.</p> <p>The plaintiff, having the certificate and assignment with him, on July 9, 1887, tendered the same to the defendant at its office in Boston, and demanded a transfer of the share to him, and a certificate to be made to him, and at the same time delivered to the defendant a copy of the will. The defendant declined to accept the surrender of the certificate and assignment, and declined to transfer the stock to the plaintiff, or to make a certificate to him, solely on the ground that the executor was not authorized to make such sale for the purpose of making a change of investment. The plaintiff waives all claim or fight to the share in question, and offers to transfer the same to the defendant.</p> <p>If on the foregoing facts the plaintiff was entitled to recover, judgment was to be entered in his favor for the sum of one hundred and fifteen ffg dollars, and interest from the ninth day of July, 1887; otherwise, judgment was to be entered for the defendant.</p> <p>The case was submitted on briefs to all the judges.</p>

<p>Town Way — Alteration — Discontinuance.</p> <p>The Pub. Sts. c. 49, § 66, providing that “ a town, at a meeting regularly called for the purpose, may discontinue any town way,” does not authorize a town to discontinue a longitudinal strip along and within a town way by changing one of its side lines.</p>

Contract to recover for aid furnished by the plaintiff city to Lewis Haynes, a pauper alleged to have a settlement in the .defendant city. At the trial in the Superior Court, without a jury, before Hammond, J., the only question in issue was whether Samuel W. Haynes, from whom the pauper derived his settlement, acquired a military settlement in the defendant city.

Complaint, dated May 11,1889, to the Municipal Court of the city of Boston, alleging that the defendant, on November 11,1888, “ and on divers other days and times between that day and the day of making this complaint, at said Boston, and within the judicial district of said court, did keep a certain house of ill-fame, there situate, then and on said other days and times there resorted to for the purpose of prostitution and lewdness, against the peace of said Commonwealth,…

<p>Sale of Intoxicating Liquors—Repeal of Statute — Autrefois Acquit—Evidence — Credibility of Witness.</p> <p>A complaint, dated March 25,1889, charged the defendant with unlawfully selling intoxicating liquor on February 14 preceding, and she was convicted on March 29. Pending an appeal to the Superior Court, the St. of 1889, c. 114, amending the Pub. Sts. c. 100, § 18, so as to make the punishment for that offence more severe, went into operation on April 18, the same day that the St. of 1889, e. 268, providing that the amendment should not apply to prior offences, was passed. Held, that the defendant’s liability under the Pub. Sts. c. 100, § 18, was preserved by the Pub. Sts. c. 3, § 3, cl. 2, notwithstanding the St. of 1889, c. 114, and irrespective of the St. of 1889, c. 268.</p> <p>An acquittal, on a complaint for maintaining a tenement used for the illegal keeping and sale of intoxicating liquor, is no bar to a complaint for the illegal sale of such liquor, even if the sale relied on at the trial of the latter was given in evidence at the former trial.</p> <p>At the trial of a complaint, after the defendant had testified, the record of her former conviction for a like offence was admitted in evidence, and the government was permitted to ask her, on cross-examination, questions tending to identify her as the person named in the record. Held, that the defendant had no ground of exception.</p>

Bill in equity, brought by the holders of promissory notes and bonds of the Thayer and Judd Paraffine Corporation, an insolvent debtor, against the trustee under a mortgage from the corporation to secure such bonds, and against its assignees in insolvency and certain other creditors, to compel a sale of the mortgaged property, and the payment of a due proportion of the proceeds to the plaintiffs.

Complaint to a trial justice for keeping and maintaining a common nuisance, to wit, a tenement in Hudson, used for the illegal sale and illegal keeping for sale of intoxicating liquors, from August 1, 1888, to January 31,1889. At the trial in the Superior Court, on appeal, before Thompson, J., it appeared in evidence that the defendant had a fourth class license, granted by the selectmen of the town of Hudson, for the year beginning May 1, 1888.

Indictment on the Pub. Sts. c. 209, § 1, alleging that the defendant disposed of a horse by way of lottery on December 9, 1887, at Needham. Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, in substance as follows.

Complaint for the sale, on March 7, 1889, of intoxicating liquors. Trial in the Superior Court, before Pitman, J., who reported the case for the determination of this court, in substance as follows. The defendant, in making the sale in question, acted as the bar-keeper of one Powderly, who was duly licensed to sell intoxicating liquors by a license covering the date of the sale.

<p>Complaint — A gency — Intent.</p> <p>A complaint on the St. of 1886, c. 817, § 1, charging the defendant with selling imitation butter at retail without a descriptive wrapper, need not allege that the sale was actually made by the defendant’s agent.</p> <p>At the trial of such a complaint there was evidence that the sale was made by the defendant’s agent, acting within the scope of his employment, and that he was supplied with wrappers properly marked for covering the article sold; and the presiding judge refused to instruct the jury, as requested by the defendant, that if the agent’s failure to use the wrappers was the result of inadvertence on his part, and not intentional, the jury would not be justified in convicting the defendant. Held, that the defendant had no ground of exception.</p>

Indictment on the St. of 1886, c. 329, § 3, for seduction. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.

Indictment in one count, on the Pub. Sts. c. 203, § 1, alleging that the defendant, on April 3,1887, at Braintree, “ did set fire to a building not his own, to wit, the dwelling-house of one Melvin Thayer, situate in said Braintree, and the said dwelling-house of Melvin Thayer, then and there, by the kindling of said fire feloniously, wilfully, and maliciously, did burn and consume.” At the trial in the Superior Court, before Sherman, J., the government introduced evidence…

Indictment, returned at July term, 1888, of the Superior Court for the county of Nantucket, in twenty-two counts, for forging and uttering certain writings, each of which was described as a “discharge for money,” and purported to be a bill rendered to the town or county of Nantucket by various persons or firms, for personal services, for rent of post-office box, and for articles furnished to the town or county, and to have been duly receipted upon payment thereof.

<p>Insolvent Debtor — Voluntary Proceedings — Attorney — Mortgage to secure Counsel Fees.</p> <p>A mortgage, executed in good faith by a person about to file a voluntary petition in insolvency to an attorney at law to secure him a reasonable compensation for services to be rendered in procuring a discharge in insolvency, is valid.</p>

Williams, administrator of her estate with the will annexed. Trial in this court before Devens, J., who allowed a bill of exceptions, in substance as follows. The will was executed on March 25, 1885. This issue was submitted to the jury: Was Polly Crosby, at the time of the making and execution of this will, of sound and disposing mind and memory?

Petition to the Superior Court, filed on June 6, 1888, for a jury to assess the damages to the petitioners’ land by the laying out of a way in the respondent city. Trial before Aldrich, J., who allowed a bill of exceptions, in substance as follows. Evidence was introduced tending to prove the following facts.

<p>Insolvent Debloi--Non-resident Creditor— Waiver — Composition — Proof of Claim.</p> <p>A non-resident creditor, by accepting the benefit of an offer by an insolvent debtor of a composition with creditors, under the St. of 1884, c. 286, as amended by the St. of 1885, c. 353, is bound by a discharge in insolvency granted to the debtor.</p> <p>An insolvent debtor, pending insolvency proceedings against him in this Commonwealth, filed in the insolvency court a schedule of creditors, containing the name, residence, and amount of claim of a non-resident creditor. The debtor afterwards made an offer of composition and complied with an order for a dividend made thereon by paying the requisite amount into court, and received his discharge in insolvency. The creditor, who was duly notified of all the proceedings, then wrote to the register of insolvency requesting him to remit the amount of his dividend, and, on the register’s refusal to send it without a receipt, sent him a receipt which expressly acknowledged that he had received the amount as a “ dividend in matter of composition ” of the debtor. Held, that the claim had been proved within the meaning of the Pub. Sts. c. 157, §§ 80, 81, and was barred by the discharge in insolvency.</p>

<p>Foreclosure of Mortgage — Sale by Mortgagee — Good Faith—Inadequacy of Price.</p> <p>At the time and place appointed for a sale under a power contained in a first mortgage of land, there were no bidders present, and the sale was then adjourned, and several times afterwards, no one at any time being present except the auctioneer and the mortgagee’s agent, and no notice of any adjournment being given except by oral proclamation at the time by the auctioneer. Finally the land was sold, three months after the time named in the original notice, to the agent for the mortgagee, for much less than its market value. A second mortgagee, who had requested the first mortgagee to notify him when he should take action looking to a sale, did not hear of the proceedings until nine o’clock in the evening of the day before the sale, having merely received a letter which gave the day without stating the hour or place of the sale, and having been unable upon inquiry in the neighborhood to learn anything about it. Held, that the first mortgagee, in executing the power of sale, had failed to exercise good faith and the proper diligence required of him for the protection of the interests of the second mortgagee, and that the latter was entitled to redeem the land from the first mortgage.</p>

<p>Personal Injuries — Master and Servant — Employee’s Voluntary Assumption of Risk — Due Care — Employers’ Liability Act.</p> <p>An employee in a mill undertook of his own free will to make repairs, outside of his regular duty, on a defective pulley and belt, upon the suggestion of a fellow workman who had no authority over him, and with the mere consent of his own immediate superior. He built a staging, and, just before the time for stopping the machinery for the day, was standing with his arm upon the staging, facing the belt and about twelve inches from it, looking up at it, and waiting for it to stop, when the belt came off and caught his arm, and he was injured. Held, that he voluntarily took the risk of an obvious danger, and could not recover under the St. of 1887, c. 270, § 1, although he was in the exercise of due care.</p>

Tort for personal injuries occasioned to the plaintiff in an accident upon the defendant’s railroad, through the alleged negligence of its servants. Trial in the Superior Court, before Mason, J., who reported the case for the determination of this court, in substance as follows. It was admitted that at the time when the injuries were received the plaintiff was travelling upon a free pass given to him at his solicitation by the general manager of the defendant corporation.

<p>Mortgage — Fraudulent Representations — Estoppel ■— Equity.</p> <p>A woman, without business experience, bought a mortgage of land, and proposed to take an assignment thereof from the mortgagee and a deed of the land from the mortgagor. A business man, holding himself out as her friend, represented to her, with a design to mislead, that it was irregular and not business-like to have the mortgage assigned, and advised her to have it discharged. She followed his advice, in ignorance that he was a creditor of the mortgagor, and by his assistance discharged the mortgage, and he caused an attachment to be placed upon the land before she got the deed. Held, that his conduct was clearly fraudulent, and estopped him from setting up any claim under the attachment, and that she was entitled to relief in equity.</p>

<p>Contract upon a policy of insurance for $2,000, dated October 1, 1887, upon a dwelling-house and barn, in the form prescribed by the Pub. Sts. c. 119, § 139, (St. 1887, c. 214, § 60,) against loss by fire for five years. At the trial in the Superior Court, before Mason, J., the following facts were admitted.</p> <p>For a long time before the date of the policy, and from that time until April 27, 1888, inclusive, when the buildings were wholly destroyed by accidental fire, these buildings had been vacant and unoccupied, and the agent of the defendant, by whom the policy was issued to the plaintiff, knew that they were vacant and unoccupied at the time he issued the policy.</p> <p>After the description of the buildings in the policy and in the body thereof were stamped in print the words “ occupied for dwelling purposes only,” followed by the words in writing “ permission to remain vacant thirty days without prejudice.” The policy also contained the following: “ This policy shall be void ... 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 the assent in writing or in print of the company”; and the only defence was, that at the time of the fire the policy was void under this last clause.</p> <p>The judge ruled that, upon the above facts, the avoiding clause of the policy did not apply; and ordered a verdict for the plaintiff for $2150, a sum agreed by the parties, and reported the case for the determination of this court.</p> <p>If the ruling was correct, judgment was to be entered on the verdict; otherwise, a new trial’was to be ordered.</p>

<p>Trust for Charitable Purposes — Cy Pres.</p> <p>A testator, by his will, gave in trust a parcel of land for a site for a hospital, as well as money to construct necessary buildings therefor and to pay its current expenses. A bill in equity was filed by the trustees, alleging that the site was not suitable, and a decree was made authorizing its sale and the investment of the proceeds in other land for the same purpose. Subsequently, before the land was sold, other land with the buildings thereon, both suitable for a hospital, was given to the trustees, and they then brought a supplemental bill in the nature of a bill for a review for leave to sell the land devised to them and to invest the proceeds in income-bearing securities for the support of the hospital. Held, that the erection of the hospital on the land devised was not an essential condition of the gift, and that it might properly be sold and the proceeds used in defraying the current expenses of the hospital.</p>

<p>Equity — Finding of Single Justice —Jaw and Fact— Confirmation of Void Sale by Executoi— Probate Appeal.</p> <p>The finding of a single justice of this court, that the plaintiff in a bill in equity-shows no equity calling for the interposition of the court, involves both law and fact, and, so far as it is the latter, will not be set aside unless it is clearly erroneous.</p> <p>A testator devised real estate to his wife for life, with remainder to his children, and the executor, after an appeal seasonably taken from a probate decree on his petition authorizing its sale to pay debts, sold it, and in 1885 conveyed it in the usual form to a purchaser in good faith for value, who entered into possession and made improvements. The widow and children brought a writ of entry in 1888 to recover possession, pending which the purchaser filed a bill in equity, in 1889, on the Pub. Sts. c. 142, § 22, against them and the executor, to confirm the sale to him. Meanwhile the petition was remitted to await the settlement of the executor’s final account, which disclosed a balance due from the estate, and the widow was willing to pay it to prevent a sale of the real estate, if the former sale was not confirmed. At a hearing on the bill, a single justice of this court found that the plaintiff showed no equity against the defendants, and dismissed the bill. Held, on appeal, that the facts did not require a setting aside of the finding of the single justice, and that the bill must be dismissed.</p>

Three actions OE tort. The first case was for personal injuries occasioned to the plaintiff, on September 5, 1887, by-being struck by a locomotive engine, while riding with her husband and daughter in • a carriage along a highway, at a crossing of the defendant’s railroad at grade in Beverly. The second and third cases were brought by the administrator of the husband and daughter against the defendant, for causing the death of his intestates in the same accident.

Complaint for keeping and maintaining a common nuisance, to wit, a tenement in Randolph used for the illegal sale and illegal keeping for sale of intoxicating liquors, from July 1, 1888, to July 31, 1888. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows. There was evidence tending to prove the following facts.

Complaint for an unlawful sale of intoxicating liquors to Morris Wolf, on Sunday, May 19,1889.

<p>Indictment in six counts. The first and fourth counts charged the defendant Mullen with being an accessory before the fact to distinct breakings and enterings with intent to commit larceny by one Ellis; the second and fifth charged Ellis with distinct larcenies; and the third and sixth charged Mullen and one McGuiggin and one McCormack with receiving the stolen goods. The first count was as follows:</p> <p>“ The jurors for the Commonwealth of Massachusetts on their oath present, that Edward Ellis, of Boston aforesaid, on the thirtieth day of September, in the year of our Lord one thousand eight, hundred and eighty-eight, at Boston aforesaid, with force and arms, a certain building there situate, to wit, the building of one Nelson H. Brown, in the daytime of said day, did break and enter with intent then and therein to commit the crime of larceny, and six clocks, each of the value of two dollars, of the property, goods, and chattels of the said Brown, in said building then being found, did then and there, in said building, feloniously steal, take, and carry away; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided.</p> <p>“ And the jurors aforesaid, for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that Patrick Mullen, of Boston aforesaid, before the said felony and breaking and entering with intent to commit the crime of larceny were committed, in manner and form aforesaid, to wit, on said thirtieth day of September, with force and arms, at said Boston, did feloniously and maliciously incite, move, procure, aid, counsel, hire, and command the said Ellis the said felony and breaking and entering with intent to commit the crime of larceny in manner and form aforesaid to do and commit; against the peace of said Commonwealth and the form of the statute in such case made and provided.”</p> <p>At the trial of the defendants together in the Superior Court, before Hammond, J., Ellis was found guilty; Mullen was found guilty of being an accessory, and acquitted of the receiving; and McGuiggan and McCormack were acquitted; and the defendant Mullen alleged exceptions, which appear in the opinion. The case was submitted upon briefs.</p>

Indictment for burning the barn of Edward L. Pierce, in Milton. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, which, so far as material to the points decided, is as follows.

Action, alleged in the writ to be in contract or tort, to recover damages caused by the refusal of the defendant corporation to recognize as valid certain shares of stock held by the plaintiff, or to allow them to be transferred, and to issue new certificates therefor. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts, which appear in the opinion.

Contract on a poor debtor’s recognizance, entered into under the Pub. Sts. c. 162, § 28, by the first named defendant as principal, and by the other defendant as surety, and containing the usual conditions. After the former decision, reported 146 Mass. 89, the case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts, which, so far as material, appear in the opinion.

<p>Loss of Life — Master and Servant — Brakeman on Railroad—Due Care — Employers’ Liability Act.</p> <p>A freight brakeman upon a railroad, being ordered generally by the conductor of a train to do the coupling as it was being made up about noon on a clear day, attempted to couple from the north side of the track two flat cars loaded with sticks of timber, which on that side dangerously projected towards each other beyond the ends of the cars, and, his head being caught between the ends of two of the timbers as the cars came together, he was instantly killed. He might have coupled them in safety either from the south side of the track where the timbers did not project, or by stooping down below the projecting timbers. Held, in an action against the railroad company under the St. of 1887, c. 270, § 2, for causing his death, that he was not in the exercise of due care within the meaning of § 1, and that the action could not be maintained.</p>

Contract brought by the surviving partner of a firm composed of Robert Wiley and Solon L. Wiley, doing business under the name of the Athol… Held: at which a report of a committee, chosen on March 6, 1876, to investigate the subject of a water supply for the town and to act for it with reference to contracting for the same, was presented, which report, after referring to the above contract with the Wileys, recited that “ the committee have located for use of the town fifty…

Tort for personal injuries occasioned to the plaintiff on May 25, 1886, while in the defendant’s employment.

Bill iu equity, filed in the Superior Court on April 30,1888, by the administratrix of the estate of Thomas E. Tateum, to recover a balance of the proceeds of a certificate of membership in a beneficiary association issued to the intestate, and made payable to the defendant. The defendant demurred for want of equity, and on the ground that the plaintiff had a plain, adequate, and complete remedy at law. Dewey, J., overruled the demurrer.

<p>Evidence — Impeachment of Witness — Corroboration.</p> <p>In an action by a married woman for the conversion of a horse attached as her husband’s property, on the issue whether it belonged to her or to him, his evidence was that he was not the owner. To discredit him, it was shown on his cross-examination that he had formerly included the horse in a chattel mortgage given by him; but he added, without objection, that he was ignorant of that fact when he signed the mortgage, and that upon finding it out he told the mortgagee the horse was not his and was improperly included. Thereupon the mortgagee was permitted to testify, in corroboration of the husband, that soon after the mortgage was signed, and before the attachment, the husband came to him and told him the horse did not belong to him, and ought not to be in the mortgage. Held, that the testimony of the mortgagee was competent.</p> <p>The defendant sought to ask another witness whether the mortgagee did not tell him after the attachment that he considered his title to the horse as good as to any property named in the mortgage. Held, that the question was clearly incompetent.</p>

<p>Infant — Payment of another's Debt — Avoidance of Contract — Agency.</p> <p>An infant, with the assent of his mother, agreed to work for a creditor of his deceased father for weekly wages somewhat in excess of what his services were then worth, one half to be paid to him and the other half to be applied by the creditor to the payment of his claim. When the debt had been thus paid the creditor discharged him, his services for the entire time being worth the wages agreed upon. Held, that the infant was not precluded when he became of age, as matter of law, from avoiding the agreement, although it had been fully executed, and from recovering the balance of wages due him without restoring the consideration; and that the creditor in paying the wages to himself did not act as the infant’s agent.</p>

<p>Bastardy Process — Suplemental Complaint — Superior Court — Jurisdiction — Waiver.</p> <p>After a supplemental complaint in a bastardy case has been filed in the Superior Court, it is too late for the respondent, after appearance, to object for the first time that the justice of the peace to whom the original complaint was made, and by whom the warrant was signed, had no jurisdiction to receive the one or to issue the other.</p>

<p>Judgment— Set-off—• Res Judicata.</p> <p>In an action of contract in the courts of the District of Columbia, a valid plea setting up a claim properly a matter of set-off was filed by the defendant, and issue was joined thereon. At the trial, upon the defendant's offering to prove his plea in set-off, the plaintiff objected, and the presiding judge, upon a full statement of the nature and amount of the defendant’s claim and argument by counsel, ruled, as matter of law, that “ the claim pleaded in set-off could not be sustained, and that no evidence in support of it could be admitted,” and excluded all evidence to prove it, and a verdict and judgment were rendered for the plaintiff. Held, in an action on the judgment, that the matters pleaded in set-off in the original action were res judicata.</p>

Tort for personal injuries occasioned to the plaintiff through the alleged negligence of the defendant. Trial in the Superior Court, before Sherman, J., who reported the case for the determination of this court, the report, so far as material to the point decided, being as follows. There was evidence tending to show the following facts.

<p>Agency — Public Officer — Fraud — Joint Tortfeasors — Conspiracy — Declaration — Demurrer.</p> <p>A declaration, in an action by a city against a former chairman of its water board and another person, alleged that the board was authorized to buy land for the city for a reservoir; that the chairman, of whose position, knowledge, and authority the other defendant had knowledge, knew and shared in determining the action of the board regarding the purchase; that both together, taking advantage of this and intending to defraud the city, corruptly agreed that the chairman should impart to the other the doings of the board in selecting the land and the parcel it considered fit for a reservoir site, whereupon such other was to become the purchaser; that the board should afterwards buy it at an advanced price from him, and that the profits should be divided between them; that in pursuance of this agreement the chairman revealed the particular lot thought suitable by the board to the other, who thereupon bought it, and the board, influenced by the chairman, subsequently purchased it from him at an advance; and that the two divided the profits of the transaction. Held, that the declaration disclosed a good cause of action against both defendants for the injury sustained by the city.</p>

<p>Personal Injuries — Master and Servant — Railroad — Freight Brakeman — Due Care — Negligence — Obstruction by Side of Track.</p> <p>A freight brakeman on a railroad, in getting upon a moving engine in the course of his duty, was injured by striking against some sleepers in its freight-yard, piled five weeks before within seventeen or eighteen inches of the track, which he failed to remember or did not know were there. Held, in an action by the brakeman against the railroad company, that it was a question for the jury whether the plaintiff was in the exercise of due care and the defendant guilty of negligence. The -section master, who shared with others the responsibility of supervising the place, and who had received printed instructions signed by the general manager to see “ that no wood, lumber, ties, or other obstructions are piled within six feet of the track,” was daily on the spot, and knew that the sleepers should have been piled in another place. Held, that whether the company had so intrusted the section master with the performance of any part of its duty of supervising its tracks as to-render itself liable to the brakeman for the section master’s negligence was also a question for the jury.</p> <p>At the trial, the presiding judge refused to instruct the jury, as requested by the defendant, “ that, if the defendant had used reasonable care in° the supervision of the section men and of the use of the yard, the plaintiff could not recover for the neglect of the section men in leaving the ties by the track, or the neglect of the yard-master or the section master or road-master in failing to have them removed, or to report that they were there,” but instructed them, in substance, that the defendant would be liable if its supervising agents, although intelligent and' competent, neglected their duty, if they were doing the master’s duty; and that the real question was whether the defendant had failed through its appropriate servants and agents to exercise such care and supervision as it ought to have exercised to prevent the sleepers from being where they were. Held, that the defendant had no ground of exception.</p>

Contract against John P. Barnard, Jr., and Howard W. Barnard, as principals, and against Fred M. Smith as surety, on a bond given to dissolve an attachment in the usual form, in an action of contract brought by the plaintiff against the Barnards.

Contract against the defendant James as principal and the other defendants as sureties on a bond given by them to dissolve an attachment in an action brought by the plaintiff against James and another, and conditioned for the payment of any judgment against them which James should fail to pay. Trial in the Superior Court, before Bishop, J., who reported the case for the determination of this court, as follows.

<p>Personal Injuries — Negligence — Railroad — Master and Servant — Fellow Servant — Risk of Employment.</p> <p>Freight cars were made up into trains on a railroad wharf as they were loaded from vessels by being hauled or “ kicked ” into position by a stationary engine. A car inspector, in the employ of the railroad company upon the wharf, and familiar with this method of moving the cars there, notified the conductor of a train to leave a space between a defective car and other cars of the train; and, while he was standing in that space making repairs upon the car, a newly loaded car was “ kicked ” up against such other cars, pushing them upon him and instantly killing him. Reid, that the accident resulted either from his own negligence or from that of a fellow servant, and that the railroad company was not responsible.</p>

<p>Personal Injuries — Negligence—Due Care — Invitation to Premises.</p> <p>At the trial of an action for personal injuries, there was evidence that the plaintiff, a customer at a public dining-room kept by the defendant, was wont to enter it by a certain door and sit at a certain table; that, on the day of the accident, having dined at another table, she arose, and, for the purpose of leaving the room, opened another door, and, without observing whither she was going or paying any heed to her steps, passed through it, fell down a flight of stairs, and was injured. Held, that the plaintiff was not in the exercise of due care, and could not recover for her injuries.</p>

<p>Private Nuisance — High Fence — Abatement — Judicial Discretion — Exceptions.</p> <p>In an action under the St. of 1887, c. 348, for maliciously maintaining a fence unnecessarily exceeding six feet in height, the defendant before trial voluntarily cut down the fence, hut to a point still exceeding that height, and the verdict was for the plaintiff. Held, that, under the Pub. Sts. c. 180, it was within the discretion of the presiding judge, to the exercise of which no exception lay, to order an abatement of the fence to a height not exceeding six feet.</p>

Petition to establish the truth of exceptions alleged by John P. Squire and others, in an action brought against them by Cornelius McCart, and disallowed by Bishop, J., who presided at the trial in the Superior Court. The petition was referred by this court to a commissioner, to hear the parties and report his findings, his report, so far as material to the point decided, being as follows.

Petition to the Superior Court for a jury to assess damages caused by the relocation of Walnut Street in Wellesley. At the trial in the Superior Court, before Barker, J., the jury returned a verdict in favor of the petitioners ; and the respondent alleged exceptions, the substance of which appears in the opinion.

<p>Contract to recover salary, as a police officer of the city of Boston, from October 21, 1878, to July 16, 1888. Writ dated August 2,1888. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, which appear in the opinion.</p>

<p>Written Agreement — Extrinsic Evidence — Equitable Defence — Conduct of Juror.</p> <p>After the construction by this court of a clause in a written agreement, evidence offered by one of the parties, at a subsequent trial, to prove that in point of fact they meant and intended something else, and that at the time of signing it they made an oral agreement different from and inconsistent with that construction, is incompetent.</p> <p>A party is not entitled to offer oral evidence to vary a written instrument by virtue of the St. of 1883, c. 223, § 14, permitting equitable defences in actions at law, if it does not appear that the offer has reference to the rights conferred by that statute, or that any such question was either raised upon the pleadings or presented at the trial.</p> <p>After the jury in a civil case had agreed upon a verdict and were returning to the court-room, a juror without the knowledge of any one separated from his fellows and went home. When his absence was discovered, the judge presiding at the trial instructed the officer in charge of the jury to keep the other jurors together in the court-room and to seek the missing juror and bring him back. This having been done, the verdict was rendered in the usual manner. At the hearing of a motion for a new trial, the juror was permitted to testify that he left the rest of the jury supposing that the court had adjourned, and that during his absence nothing occurred to influence him with regard to the case; and the judge found that his conduct worked no injury to the plaintiff. Held, that the verdict was not invalidated, and that the testimony of the juror was properly admitted.</p>

<p>Use and Occupation—Implied Agreement to pay Rent — Attachment — Insolvent Debtor.</p> <p>If an attaching officer or messenger in insolvency expressly refuses to become responsible for the rent of premises on which he leaves goods of the debtor, a promise on his part to pay for the use and occupation thereof will not be implied, although the owner of the premises did not agree that the officer or messenger should not pay rent.</p>

Complaint, dated August 22, 1888, to the Police Court of Newton, alleging that the defendant, “ being then and there armed with a dangerous weapon, to wit, an axe,” on that day at Newton, with force and arms upon one Hart “ then and there being an assault did make,, and said Hart did then' and there beat, wound, and ill treat, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.” The record of the Police Court,…

<p>Complaint for keeping and maintaining a common nuisance, to wit, a tenement in Woburn used for the illegal keeping and sale of intoxicating liquors from November 1, 1888, to January 28, 1889. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to prove the following facts. The defendant had a license of the first class to sell intoxicating liquors, and occupied for that purpose a room in a building in Montvale Avenue, lighted by four windows, one of which was in the front of the room and faced that avenue, and the remaining three were in the side of the room, and fronted upon an open lot bounding upon the avenue. On successive evenings during the time in question, the front window was covered by a wooden shutter. At the same time, however, a full and complete view of the interior of the room could be obtained through the side windows by a person standing upon the open lot or upon the avenue.</p> <p>The defendant requested the judge to instruct the jury, that the closing of a shutter over one window in a place in which the business of keeping and selling intoxicating liquors is carried on under a license of the first class does not make the license void, if a reasonable and sufficient view of the interior of the premises and of the business conducted upon the premises can be obtained through other windows which are left open and uncovered by shutters or other obstructions; that the word “interfere” as used in the statute means “prevent”; that the closing of a shutter upon one window in a place in which the business of keeping and selling intoxicating liquors is carried on under a first class license renders the license inoperative and ineffectual during the time such closing continues, but at other times (during the term covered by the license) the license justifies the licensee in keeping and selling intoxicating liquors upon the premises, if it has not been revoked by competent authority.</p> <p>The judge declined so to instruct the jury, and instructed them as follows: “ The closing of a shutter over one window in a place in which the business of keeping and selling intoxicating liquors is carried on under a license of the first class does not make the license void unless it materially interferes with a view of the business conducted upon the premises, or with a view of the interior of the licensed premises; but if the shutter materially interferes with a view of the interior of the licensed premises, or with a view of the business conducted upon the premises, then the license thereby becomes void. Whether it does or not so interfere with a view of the interior of the licensed premises, or with a view of the business conducted upon the licensed premises, is a question of fact for the jury; and if it was such an interference, then the license thereby became void, and if the defendant after that time kept intoxicating liquors for sale upon the licensed premises, he kept them, so far as the license is concerned, in violation of law.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Complaint for keeping and maintaining a common nuisance, to wit, a tenement in Randolph used for the illegal sale and illegal keeping for sale of intoxicating liquors from. May 1 to October 4, 1888. Trial in the Superior Court, before Pit-man, J., who, after a verdict of guilty, allowed exceptions, which, so far as material to the point decided, appear in the opinion.</p>

Complaint on the Pub. Sts. c. 207, § 52,* alleging that the defendant at Weymouth, on September 8, 1887, unnecessarily failed to provide a horse, hired by him and in his custody, with proper food, drink, and protection from the weather for the space of twenty-four hours thereafter. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions in substance as follows.

<p>Receipt for Personalty attached—Insolvency of Judgment Debtor — Discharge of Receiptoi--Levy.</p> <p>A receiptor, bound to keep the goods safely and redeliver them to the attaching officer on demand, otherwise within thirty days from the rendering of judgment in the action for taking on execution, delivered them to the debtor, who, after using them in whole or in part in his business, went into insolvency. Judgment was rendered against the debtor in the action two days, and execution issued thereon one day, before the first publication of notice, and the attaching officer minuted on the execution the time he received it, but made no demand on the receiptor, and did nothing further. Held, that the officer acquired no lien on or right to the goods, and could maintain no action upon the receipt.</p>

<p>Tort. The declaration was as follows:</p> <p>“ And the plaintiff says that the defendant, on the third day of August last past, exclusively occupied, used, managed, and controlled, and long prior to said date had exclusively occupied, used, managed, and controlled, a parcel of unenclosed land, situate in said Gloucester, adjacent to and abutting upon a much travelled street or way, known as Tremont Street; that there were then upon said land several, to wit, three or more, railroad tracks, which diverged from the main track of the so called Eastern Division of a railroad then operated by the defendant, and terminated on, or closely upon, said Tremont Street; that on said date the defendant exclusively occupied, used, managed, and controlled said diverging or side tracks, and long prior thereto had exclusively occupied, used, managed, and controlled the same; that on or about said third day of August the defendant ran a freight car on to one of said side tracks, and left the same standing thereon at a spot very near to said Tremont Street; that, as the defendant then well knew, the doors of said freight car were very heavy, and ought to be securely fastened or attached to the body or frame of said car; that when the defendant placed said car upon said track the defendant well knew that one of said doors was not securely, carefully, or properly fastened or attached to the body or frame of said car, but was liable, upon receiving a slight touch, to become detached from the same, and to fall violently to the ground; that, although said door could then have been, and ought to'have been, shut and locked, or in some way securely fastened or attached to the body or frame of said car, nevertheless the defendant carelessly and negligently suffered, allowed, and permitted said door, while in said unsafe, dangerous, and insecure condition, to remain open and unlocked, and in no way carefully or properly fastened, secured, or attached to the body or frame of said car, well knowing that said car then was, and would be, an enticing, attractive, and inviting object to children, and well knowing that children then were, and long prior thereto had been, accustomed to play in, upon, around, and about such cars as might happen from time to time to be placed upon any of said side tracks.</p> <p>“ And the plaintiff further says, that on said third day of August he, being then upwards of eleven years of age, was travelling on that part of said Tremont Street which was in the vicinity of the side track upon which said car was standing, and saw said car with its open door, and was thereby enticed- and invited to look into said car, and thereupon did undertake to look into said car, exercising therein as much care as could reasonably be expected of a child of his years and capacity ; and that in attempting to look into said car he carefully touched said door, and immediately said door fell upon him, causing a compound fracture of his right knee, and in consequence thereof he has been put to great bodily pain and damage.”</p> <p>The defendant demurred to the declaration, on the grounds that it did not state a legal cause of action; that it alleged no duty on the part of the defendant towards the plaintiff, nor any breach thereof; and that it showed the plaintiff to be guilty of contributory negligence.</p> <p>The Superior Court sustained the demurrer, and ordered judgment for the defendant; and the plaintiff appealed to this court.</p>

Tort for personal injuries occasioned to the plaintiff by an alleged defect in a sidewalk in the defendant city. Trial in the Superior Court, before Lathrop, J., who directed a verdict for the defendant, and allowed a bill of exceptions, which, so far as material to the points decided, appear in the opinion.

<p>Mortgage of Real Estate — Fixtures — Cotton Machinery — Trover.</p> <p>On the issue whether certain machinery in a cotton mill was, as between mortgagor and mortgagee, a part of the realty, an agreed statement of facts showed that the machines, most of which were large and heavy, were all procured for use in manufacturing cotton cloth; that while there were changes in the kinds of goods manufactured, the machines were not intended to be moved from place to place, but were intended to be put in position and there used with the building until they should be worn out, or until, from some unforeseen cause, the real estate should be put to a different use; that most of them were fastened to the floor for the purpose, among others,'of steadying them when in use; that apparently they had been attached to the building and connected with the motive power with a view to permanence; and that certain loom beams, which were laid upon the looms when in use, although not fastened thereto, were essential parts of the looms. Held, that it could not be said that the machines, including the loom beams, were personal property, for the conversion of which trover would lie.</p>

Contract by Albert D. Handy and John A. Lincoln, co-partners doing business under the name of Handy and Lincoln, against Johanna Tracy, administratrix of the estate of Patrick Tracy, upon two promissory notes, one dated April 16, 1885, for $200, and the other dated August 2, 1885, for $100, signed by the intestate, and payable to the order of Handy and Lincoln', one in one month from date and the other on demand, with interest at the rate of four and five per cent per month.

Tort for personal injuries sustained by the plaintiff while driving in a highway, in a collision with an ice-cart of the defendant. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.

Bill in equity, filed February 18,1889, for the specific performance by the defendant of an agreement to purchase land from the plaintiff. The case was heard by Knowlton, J., and was as follows.

<p>Contract by a deputy sheriff to recover certain damages, costs, and expenses, for which he had become liable in three actions brought against him for the alleged conversion of goods in levying an execution in favor of the defendant. Trial in the Superior Court, before Dewey, J., who reported the case for the determination of this court, in substance as follows.</p> <p>On August 17, 1882, the defendant brought an action against Maria D. Mann and Birney Mann, her son, both of whom resided together on a farm, and the writ was placed in the hands of the plaintiff, who was directed to make an attachment under it of all the personal property that was attachable on the farm. The plaintiff proceeded to attach, among other things, certain live stock and the whole of a mow of hay, except two tons, which however were not separated from the rest of the mow, and left the property on the farm in charge of a keeper. The defendant recovered judgment against the Manns, and an execution, duly issued thereon on December 10, 1883, was placed in the hands of the plaintiff, who proceeded to levy it by a sale of the property attached. The defendant was present at the sale; but as to the mode to be pursued in levying the execution the plaintiff acted upon his official responsibility, and without any directions from the defendant. When the plaintiff was about to sell the hay, he was notified that Mrs. Mann claimed two tons thereof as exempt from the levy and sale. The plaintiff, for the reason that more than that amount had been consumed in keeping the stock attached up to that time, was of opinion that he was not required by law to exempt any of the hay, and thereupon declared his purpose, in the presence and hearing of the defendant, and without any expressed assent or objection by him, to sell all the hay in the mow. The plaintiff, acting in good faith, without any purpose of injuring the Manns or either of them, and in the discharge of what he believed to be his legal duty, proceeded to sell the hay; and the defendant bid thereon, and finally bought it, and had the avails thereof in part satisfaction of his execution. The entire proceeds of the sale were duly .paid over by the plaintiff to the defendant. Subsequently three actions were brought against the plaintiff for the conversion of part of the property attached and sold by him as above, one of them, brought by Mrs. Mann, being for the conversion of the two tons of hay. The plaintiff successively notified the defendant of these actions, and had one or more interviews with him on the subject; but the defendant declined to appear in them, or to take upon himself the defence thereof, and disclaimed any responsibility to the plaintiff in relation thereto. Thereupon the plaintiff, acting upon the advice of counsel, entered upon the defence of the three actions, and incurred the expenses in question, including counsel fees. Mrs. Mann recovered judgment against him for the value of the hay and for her costs, the entire amount being paid by the plaintiff to her before the date of the writ.. In the other two actions the plaintiff recovered judgment, and execution issued to him for his costs, no part of which bad he been able to collect.</p> <p>Upon the above facts, the judge ruled that the plaintiff was not entitled to recover, and found for the defendant. If the finding was correct, judgment was to be entered thereon; otherwise, judgment was to be entered for the plaintiff, or a new trial ordered.</p> <p>The case was submitted on briefs in October, 1888, and after-wards, in September, 1889, on the same briefs, to all the judges.</p>

<p>Writ of entby, dated March 3, 1883, against the Turner’s Falls Company and the Turner’s Falls Lumber Company. Plea, mil disseisin, with a claim for an allowance for improvements. After the former decision, reported 142 Mass. 590, the case was tried- in the Superior Court, before Hammond, J., who, after a verdict for the demandant, allowed a bill of exceptions, which appear in the opinion.</p>

Action in which the writ, which was dated December 15, 1888, described the defendant as “ the Providence and Stoning-ton Steamship Company, a corporation duly organized and established by law, and having its usual place of business in Boston, in the county of Suffolk.” The officer’s return upon the writ was as follows : “ Suffolk, ss. Boston, December 19, 1888.

<p>Manual Delivery of Deed—- Evidence of Intent.</p> <p>On the issue whether a deed of land, signed by the grantor, passed into the hands of the grantee so as to convey the title, the grantor may be permitted to testify that she never parted with the possession of the deed with the intent that it should take effect as a deed.</p>

Action of tort, begun by the trustee process in the Superior Court in the county of Suffolk. The writ, which was dated May 12, 1888, described the alleged trustee as “ having a usual place, of business in Boston ” in that county.

<p>Laying out of Way — Action of Tort for Damages — Amendment — Waiver — Estoppel.</p> <p>A way was duly laid out on November 29, 1886, and an action of tort for damages alleged to result therefrom was brought in the Superior Court on November 25, 1887, but no declaration was inserted in the writ, and nothing was filed in the clerk’s office until the year after the adoption of the order had expired. The answer set up that the alleged acts were done in the location and construction of a public way. At the trial an amendment was allowed changing the process into a petition under the Pub. Sts. c. 49, §§ 32, 105, for the assessment of damages. Eeld, that the amendment was improperly allowed, and that the defendant city had not impliedly assented to or estopped itself from objecting to its allowance.</p>

<p>Contract, upon an account annexed, against the executor of the will of J ames H. Coon, to recover the value of certain building stone. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff made a contract with the firm of Currier and Kilham to erect a mill for it upon its land, and that firm made a sub-contract with the defendant’s testator to lay the foundation walls and furnish the stone therefor. The testator in excavating for the foundations discovered in the land considerable stone suitable for the walls, and made use of it in laying them. The plaintiff contended that the defendant should pay for the stone so found and used by the testator, and that the law would imply a contract to that effect from the situation and condition of the parties.</p> <p>The judge instructed the jury upon the general features of the case, and upon an express and an implied contract, in terms not excepted to by either party; and the defendant, among other requests for rulings, made the following: “ The plaintiff to recover must show that there was an agreement between Mr. Coon and the plaintiff to pay for those stone, — a meeting of the minds of the parties on such an agreement.” The judge refused so to instruct, but instead gave the following instruction: “ If by that is meant an express agreement, of course that is not necessary; but so far as an implied contract is concerned, it must be made to appear that the circumstances were such, and the relation of the parties such, that the jury will imply an agreement to pay for them, and that the minds of the parties met on that proposition.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract to recover back money paid by the plaintiff city to reimburse the defendant city for aid furnished to Lewis Haynes, a pauper. At the trial in the Superior Court, without a jury, before Dewey, J., there was evidence tending to prove the following facts. The defendant furnished the aid in question to the pauper, who was in need of immediate relief, and notified the plaintiff thereof.

Bill in equity, filed in the Superior Court on March 30, 1889, to prevent the foreclosure of a mortgage of land. At the hearing, before Lathrop, J., there was evidence tending to prove the following facts. Charles C. Kendall, the owner of the land, which was situated on National Street in Boston, gave the mortgage in question to the defendant on April 17,18864 and it was duly recorded.

<p>Insolvent Debtor — Married Woman — 11 Person ’ ’ — Promissory Note —■ A gent to Jill Blanks — Indorser — Affidavit.</p> <p>An application to this court, under the Pub. Sts. c. 157, § 15, to vacate proceedings in insolvency, does not bring before it the whole case, but only those points respecting which the petitioner alleges that he is aggrieved.</p> <p>A married woman indorsed a printed blank promissory note, at her husband’s request, and handed it to him, with the knowledge that it was to be filled up and used by him, but never saw it again. Afterwards he filled up the blank and signed it in her absence, and negotiated it before maturity at a bank which took it in good faith for full value. She received directly no consideration for it, though the proceeds were used partly for the family expenses. Held, that she was liable as indorser upon the note.</p> <p>In an action, described in the writ as an “ action of contract,” against a married woman, an attachment was made on her property, which she did not dissolve before the return day of the writ. No declaration was contained in the writ, nor did she ever demand a copy thereof. Held, that she was liable to be proceeded against in insolvency, under the Pub. Sts. c. 157, § 112.</p> <p>A petition in insolvency against a married woman alleged that an action, in which she had failed to dissolve an attachment, was duly entered, and was still pending against her, but did not aver in terms that service of the writ was made upon her. On an application under the Pub. Sts. c. 157, § 15, to this court, it was agreed by counsel that such service was actually made. Held, that she had no ground of complaint.</p> <p>The affidavit appended to a petition in insolvency recited that its allegations were true, according to the best knowledge and belief of the affiant. Held, that the affidavit was sufficient.</p>

<p>Equity Practice — Trade-mark.</p> <p>A bill in equity, to prevent the infringement of the trade-mark N S by the use of the symbol N & S, alleged that a cigar dealer adopted the letters N S as a trademark to designate cigars of a certain style and form of superior and uniform workmanship, and manufactured for him exclusively from a certain standard grade of tobacco; that he sold his business, and with it assigned the trade-mark, to the plaintiff, who continued under that trade-mark to sell the same cigars, which were also made exclusively for him by the same manufacturer; that labels on the cigar boxes gave the location of the factory, and, after his pur-' chase, the plaintiff’s name as the successor to the business and trade-mark, with a notice that the N S brand as originally manufactured continued to be made by the same person for the plaintiff. A decree made by a single judge, enjoining the defendant, recited that the letters N S constituted a valid trade-mark used to represent a cigar of a certain and distinct kind, that it was assignable, and that it was a symbol which did not indicate personal selection “further than that it was the name of cigars of a certain size, quality, and shape.” Held, on appeal, the evidence not being reported, that the decree was warranted by the allegations of the bill, and should be affirmed.</p>

<p>A woman, married or unmarried, cannot lawfully be appointed a notary public, or, if duly appointed and qualified, legally perform any acts pertaining to the office.</p>

<p>The Legislature has the power under the Constitution to authorize the cities and towns within the Commonwealth to manufacture and distribute gas or electric light for use in their public streets and buildings, and for sale to their inhabitants.</p>

<p>The Justices of the Supreme Judicial Court declined to give an opinion to the House of Bepresentatives upon the following question: Have towns and cities in. the Commonwealth the power under existing laws to manufacture gas or electric light for use in the public streets and buildings in such cities and towns, or for sale to the citizens of such cities and towns ?</p>