Volume 151 — Massachusetts Reports

<p>Equity — Mortgage of Real Properly — Payment and Discharge — Equity of Redemption •— Laches.</p> <p>On a bill in equity, filed June 22,1889, for the recovery of land, it appeared that in 1863 it was mortgaged for the term of three years, the buildings' thereon being insured for the mortgagee’s benefit. Subsequently to September 4, 1874, a fire occurred, and the insurer offered to pay the mortgagee if he and the then owner of the equity would give receipts, but the latter refused to do so save upon the assignment of the mortgage to a third person. This was agreed to, and the insurer paid the insurance to the mortgagee, the owner of the equity paid the balance due on the mortgage, and the assignment was made. Afterwards, on October 19, 1874, the owner of the equity, who never agreed to assume the mortgage, conveyed the “ premises ” to one, and on February 1,1876, the assignee of the mortgage assigned it to another, who duly sold the land under a power in the mortgage, and the defendants on June 20, 1876, bought it in good faith and for a fair price from a succeeding purchaser, and entered into possession. On October 20, 1876, the grantee of the owner of the equity of redemption sought in equity to recover the land from the defendants and cause the mortgage to be discharged, but his bill was dismissed by agreement; and on June 12,1886, he conveyed the land subject to the mortgage to the plaintiff, who knew of his grantor’s bill in equity and of its disposition. Held, that the payments by the-insurer and by the owner of the equity to the mortgagee did not operate to discharge the mortgage, that the plaintiff was affected by his grantor’s laches, and that the defendants had the better title.</p>

Tort for tlie conversion of certain furniture. Answer, a general denial, with a further allegation that the furniture “ is and was the property of other parties, and not the plaintiff’s property.” Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows.

Writ oe entry to recover a parcel of land. Plea, nul disseisin. At the trial in the Superior Court, without a jury, before Aldrich, J., the following facts were agreed. George Woollard died on June 25, 1888, seised of the demanded premises, and leaving a will, containing the following provisions, which alone are material: “ Item II.

<p>Married Woman — Agency of Husband — Payment.</p> <p>On the issue whether a husband had authority to loan money and take an assignment of a mortgage as security for it, in his wife’s name and oh her account, and afterwards to receive payment thereof, there was evidence that he and she had money, which was never kept separate but was included in a bank account kept in his name, and which he invested as he pleased; that he had sometimes had mortgages made out to her; and that for several years he had lent his and her money in considerable amounts. Held, that a finding was warranted that he was her general agent, with authority to loan her money on mortgage security, and to receive payment thereof when due, and, upon receiving an overpayment by check, to agree to pay back the balance due the debtor at the same time.</p>

<p>Written Agreement—Oral Contract — Extrinsic Evidence —</p> <p> Weight of Evidence. </p> <p>In an action for the conversion of certain telegraph bonds, assigned by the plaintiff to the defendant under a written contract, by which the plaintiff and another jointly and severally agreed to assign the bonds to the defendant upon their delivery to them when issued by the company, the plaintiff claimed to recover for half the bonds under an oral agreement with the defendant, that, if the plaintiff should be obliged to assign the whole number of .bonds to the defendant under the written contract, the latter should receive half of them for return to the plaintiff through a third person. Held, that the oral contract was distinct from the written contract, and did not control or vary it, and that evidence to prove it was rightly admitted.</p> <p>At the trial the plaintiff testified to the oral contract, and his testimony was corroborated by that of others, and it was not denied that the contract was proved if he testified truly. The jury returned a verdict for the plaintiff, and the defendant’s motion for a new trial was overruled. Held, that whether the plaintiff was to be believed was settled conclusively on the motion for a new trial.</p>

Petition to the Superior Court for a review of a judgment by default upon a writ of scire facias against the petitioner as trustee, alleging that the attorney for the petitioner by mistake overlooked the scire facias when it was upon the trial list of that court, and that in consequence judgment was rendered thereon against the petitioner by default.

<p>Evidence — Declarations — Cross-examination — Exceptions.</p> <p>In an action to recover the price of certain ventilators furnished by the plaintiff for the defendant's building, the latter, before offering any evidence that a certain device for opening and fastening them was to be made to the architect’s satisfaction, and after the plaintiff had denied this, asked the plaintiff on cross-examination what the architect said about it, and the question was excluded. Subsequently, such evidence having been offered, the defendant was permitted to cross-examine the plaintiff as to the architect’s statements. Held, that the defendant had no ground of exception.</p>

<p>Petition for the removal of a cause into the Circuit Court of the United States. Hearing before Knowlton, J., who ruled that the defendant was not entitled to a removal, and reserved the case for the full court. The facts appear in the opinion.</p> <p>The case was argued at the bar in September, 1889, and after-wards was submitted on the briefs to all the judges.</p>

<p>Petition to the Superior Court, filed November 18, 1887, for a jury to assess the damages caused by the taking by the respondent of land of the petitioner for the widening of Liberty Street, a town way in Foxborough, and praying for further time for removing a house partially standing thereon. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that Liberty Street was first laid out- as a town way thirty-three feet wide in 1857, and as then laid out the northerly line of the street formed the southerly boundary of the petitioner’s land. In October, 1887, the town widened Liberty Street, and in so doing took seven feet on the southerly side of the petitioner’s land, into which projected a corner of his house. The report of the selectmen thereon to the town was made on October 10, and accepted by the town on October 19, but contained no provision as to the time within which the trees, fences, and other property on the land taken should be removed. The selectmen, however, in a report made by them to the town, also on October 10, with reference to the laying out of Wall Street in continuation of Liberty Street, stated that “ we have allowed each of the owners of land through which said way passes twenty days after the acceptance of this laying out by the town to take off his trees, fences, and other property which may obstruct the building of such way.” The petitioner put in evidence a notice from the selectmen dated and served on him on October 29, 1887, which stated that the “ selectmen of Foxborough, on the tenth day of this October, A. D. 1887, laid out a widening of Liberty Street in said Foxborough, which widening passes in part over land belonging to you; said part belonging to you included in said widening being described as follows. o [Here follows a description of the land taken.] Said laying out was accepted by the town at a town meeting held on the nineteenth day of said October, A. D. 1887. And in said laying out we allowed each of the owner’s of land through which said way passes twenty days after the acceptance of the laying out by the town to take off all the fences and other property which may obstruct the building of such way. You are hereby notified to remove your trees, fences, and other property v hich may obstruct the building of said way, within twenty days from date of said acceptance.”</p> <p>The petitioner also put in evidence another notice from the selectmen to him, dated November 14,1887, which stated that “At a town meeting of the town of Foxborough, held on the nineteenth day of October, A. D. 1887, the town accepted of a widening of Liberty Street in said town ; a part of said widening took certain land of yours, fully described in notice from this board to you, dated the twenty-ninth day of October, 1887, to which reference is hereby made for a more full and particular description thereof; and in said laying out the owners of land so taken were allowed twenty days from the date of the acceptance thereof in which to remove buildings or materials on such land so taken; and the twenty days so allowed having expired, and you having refused or neglected to take care of or to remove the building or material on the land so taken from you, you are hereby notified that unless you remove the buildings and materials on land so taken within five days from this date, we, as the selectmen and highway surveyors of said town, shall take care of, remove, or sell such buildings and material, according to the provisions of sections 80 and 17 of chapter 49 of the Public Statutes.”</p> <p>The petitioner testified that he did not remove any of said property, and made no effort to do so, and that he made no request for further time, and did nothing further in regard to the property, after receiving either notice; and no sale was made by the town.</p> <p>There was a quantity of stones of various sizes on the petitioner’s land along the line of Liberty Street, forming an irregular pile or wall, which the petitioner had collected from his land, and which had been accumulating for many years. Some of these stones were taken in the widening an.d used in building a sidewalk on the strip of land taken, and adjoining the petitioner’s remaining land, seven feet in width, and varying from ten to twenty-four inches in height above the petitioner’s land, and some were removed and used in building another street,' and a large portion were left upon the land. The petitioner contended that four fruit-bearing apple trees which stood upon the strip of land taken were destroyed in the widening. The petitioner offered in evidence the cost of removing the house, the value of the stones taken and of the trees destroyed in the widening, as bearing on the measure of damages. To this evidence the respondent objected, contending that the property, or such part thereof as belonged to and was part of the realty, had been forfeited by the petitioner; but the judge admitted the evidence.</p> <p>It appeared in evidence that the sidewalk constructed in widening and altering Liberty Street had an average elevation above the land before the taking, and above the petitioner’s adjoining land, of fifteen inches, but that the sidewalk when built was not raised in the main above the centre of the street, which was crowned in the centre ; that the grade of Liberty Street, as to the establishment of which there was no evidence other than the fact that the crown of the street was constructed to its present height, had not been changed since its laying out in 1857 ; that no sidewalk had been constructed on the side next to the petitioner’s land until after the widening, but the public had so used the street on that side as to form a foot-path lower than the crown of the street, and on the same level with the petitioner’s adjoining land taken for the widening, which foot-path had served as a gutter during rainy weather; and that the land opposite the petitioner’s land on Liberty Street was, and had been for some years, owned by Mrs. E. P. Carpenter, whose land had formerly been unenclosed, but she had. before the widening erected a fence seven feet southerly from the southerly line of Liberty Street, which fence extended the whole length of her premises opposite the petitioner’s land. The petitioner contended that this fence had been erected more than twenty years, (which the respondent denied,) and, against the respondent’s objection, offered evidence tending to prove that the public had for twenty years or more used the strip of Mrs. Carpenter’s land between the fence and the southerly line of Liberty Street as a sidewalk, and that thereby the public had gained a right to that strip of land, which was also taken in the widening of Liberty Street and for which she was awarded damages, to be used as a sidewalk by prescription, and consequently the street had become forty feet wide, instead of thirty-three feet wide as originally laid out. The petitioner contended that the jury could not therefore set off, as against the petitioner's damages, any special benefit the widening of the street might have to the petitioner’s land, except from the widening of seven feet taken from his own land. The petitioner offered evidence to show the expense of grading up his adjoining land by a regular slope, so as to conform to the grade of the sidewalk constructed on his land taken by the widening, and of the damage resulting from cutting off his entrance to his remaining land. To this evidence the respondent objected, but the judge admitted it.</p> <p>The petitioner offered evidence, which was admitted against the respondent’s objection, of the cost and expense of providing a fence suitable to the land and locality, the respondent contending that the petitioner should in no event be allowed any greater sum than the value of the fence which existed before the widening.</p> <p>The petitioner requested, among others, the following rulings and instructions to the jury:</p> <p>“ 1. If the highway known as Liberty Street had, previous to the present widening, since its first laying out, been used and occupied by the public, along the side next to the petitioner’s land, at the same grade as the adjoining land of the petitioner, and without any sidewalk except such as had been created by the path along that side of the street which the public had used, this petitioner is entitled to recover for all damages arising from the construction of a sidewalk upon the land taken from this petitioner along the line of the petitioner’s remaining land, and for the raising of the level of the sidewalk constructed upon the land taken from him above the grade of the petitioner’s land, if such raising and construction is a part of the actual work .of widening said street under that taking. . . .</p> <p>“ 3. The use of a sidewalk for twenty years continuously and without interruption by the public as a part of the highway to which it is adjoining, which sidewalk is separated from the lands of the adjoining owner by a fence erected and maintained by the owner thereof, excluding it from his remaining lands, establishes such sidewalk as a public way by prescription. . . .</p> <p>“ 6. The jury may extend the time for the petitioner to remove his building from the highway as established by the taking.”</p> <p>The respondent requested the judge to instruct the jury as follows:</p> <p>“ 1. If the petitioner has not complied with the notice to remove that portion of his building, or any other property, standing on the land taken, and if the expense of said removal is equal to or exceeds the damage caused to the building, or other property, by said removal, then the petitioner cannot recover for any damage to said building, or other property, caused by said removal.</p> <p>“ 2. If the petitioner has not complied with the notice to remove that portion of his building standing on the land taken, and if it would be a proper and reasonable method in widening the street to remove the whole building back on the remaining land of the petitioner, the respondent has a right so to remove said building, and to place it relatively in the same position to the street .as it was before the widening, and the jury in estimating the petitioner’s damages should deduct from the total damages any reasonable expense that such removal might cause.</p> <p>“8. The selectmen having notified the petitioner to remove his building and other property standing on the land taken, and he having refused or neglected to remove said building or property, he cannot now recover for any damages the widening may have caused to said building or other property.</p> <p>“4. Public Statutes, chapter 52, section 15, does not apply to this petition. If in the original laying out of Liberty Street a grade was established, the damages to which the petitioner was then entitled included any changes in the surface of the land injurious to him, and the presumption is that the petitioner received full damages for the injury thus caused, or that he waived his claim to damages. The town had then a right to raise the street through its entire width up to the grade thus established, and the building of a sidewalk up to that grade at any time would not be a change of grade for which the petitioner could recover. If, in widening Liberty Street, the grade to which the respondents had a right to maintain it was unchanged, and the difference of grade between the street and the petitioner’s remaining land was substantially as it was before the widening, then the petitioner cannot recover, as a specific item of damages, any cost of grading the petitioner’s remaining land. If, the crown of the street has remained unchanged since the street was laid out, and there is no record evidence of what the grade at that time was, then the crown of the street must be presumed to be the height of the grade for the entire width of the street.”</p> <p>The judge refused to give the instructions requested by the respondent, and, after having instructed the jury that in determining the amount of pecuniary damage, or loss, if any, suffered by the petitioner, they should ascertain the value of the land taken, and the damage, if any, to the petitioner’s remaining land, and that against these should be offset such special benefit, if any, as the petitioner had received by the widening not shared by the community in general; and having defined the nature of such special benefit, and what would constitute the same, and having cautioned the jury that they should not allow any of the items bearing upon the question of damages to withdraw their attention from this principle, to which instructions no objection was made, also instructed the jury, that, in considering the way in which this widening affects the petitioner’s estate and the damage to his remaining land, it would be necessary for them to consider the cutting off of the building and the changing the grade of the sidewalk, if they found a change to have been effected adjacent to the petitioner’s land; that in considering these points they should inquire what was a proper and reasonable mode of treating the premises after widening, and whether it was a proper and prudent mode to remove the house, or to repair the end cut off; and that in general, in estimating damages, those things which are needful to be done after the widening in order to such use of the premises relatively as the petitioner had before might be considered. The judge further instructed them as follows: “ Under the statute, the selectmen fix a certain time within which the petitioner, in a case like this, may remove his house. The expense of such removal is an element of damage to be considered by you, together with the other elements and all the considerations in the case, in estimating the damages which should be given to the petitioner, in case you deem the removal of the house to be a reasonable and proper thing to do. . . . If these stones, upon the evidence before you, constitute a wall, then they are part of the realty, a part of the real estate, and this petition covers them. If, on the other hand, they were a collection of stones such as is sometimes made for the purpose of use or disposition as occasion may require, and were not a wall, they then are personal property, and are not covered by this petition. ... If there were any proof in this case, if it were a fact that the town had exercised this right of removal of the building, if the town had removed the building, it would be a proper subject, in my opinion, for deduction and offset; but I do not instruct you that you can, in passing upon the question now, — the evidence before you being that the town has not removed the building, —fix a sum to be deducted as the expense of the town, or anticipate that the town will remove it.”</p> <p>The judge gave the first ruling requested by the petitioner, saying that it was given subject to the general principle above stated, and that the jury should so consider it, as well as the third ruling requested by him; and further instructed the jury, “that, if you find this sidewalk before the widening was in use by the public continuously and regularly as a part of said highway for a period of twenty years or more, that throws that portion of the land open to the public, as part of the public street.”</p> <p>The judge also instructed the jury, “I cannot lay down to you an absolute rule as to whether you should determine that a fence or wall is a reasonable and proper thing to be placed by tbe petitioner upon bis line, as it now exists since the widening. I have already stated to you the general principles, that this property is to be treated in a reasonable and proper manner, as a prudent and wise man would do. There are circumstances under which a fence would be a very proper and indeed a necessary thing to be placed upon land after it is opened, or after a street is widened. There are other circumstances under which, after a stx-eet is widened, a jury might well come to the conclusion that a fence or wall would not be properly required by the exigencies of the case, to come in as an element in the estimation of the damages. And therefore I say that this, as well as the other elements in the case, is to be for your judgment and your consideration, under these general principles which I have laid down, as to whether it was a thing which a fair and proper treatment of the premises would call for. ... I am asked to instruct you, that ‘ the jury may extend the timé for the petitioner to remove his building from the highway as established by the taking.’ I give you that instruction, so that, if you see fit to do so, you can extend the time in which the petitioner may remove his building from the highway.”</p> <p>The jury returned a verdict in favor of the petitioner, and extended the time of removing the building to July 15,1888; and the respondent alleged exceptions.</p>

<p>Action — Railroad Structure — Continuing Nuisance — Statute of Limitations.</p> <p>A railroad company, in constructing its road-bed in 1880, built a culvert under it, and, having unnecessarily brought together eight natural streams of water, discharged them through the culvert upon adjoining land at a place different from the original course of any of them, three of the streams never before having flowed over such land at all; and thereafter these combined waters, and also an increased flow of surface water caused by the road-bed, varying witli the seasons, continued to flow through the culvert. The landowner brought no action against the company for any damage to the land, and in May, 1887, he sold it. In July and August of that year, as the result of heavy rains, the land was overflowed, sand was deposited thereon, and the crop of hay was injured. Held, that the railroad structui-e formed a continuing nuisance, that the purchaser could maintain an action against the company for the damage occurring after his purchase, and that the statute of limitations was no bar.</p>

Tort. The amended declaration was as follows: — “ And the plaintiff says that the defendant publicly, falsely, and maliciously accused the plaintiff of corruptly accepting a gift and gratuity, and of accepting a promise to make some gift and do some act beneficial to the plaintiff, under an agreement and with an understanding that his vote, opinion, and judgment should be given in support of a bill to incorporate the town of Beverly Farms, a question then depending in the…

COMMONWEALTH v. MEANEY. [151 Complaint for keeping and maintaining a common nuisance, to wit, a tenement in Newton used for the illegal sale and illegal keeping for sale of intoxicating liquors. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.

Complaint for keeping and maintaining a common nuisance, to wit, a tenement in Watertown used for the illegal sale and keeping for sale of intoxicating liquors, from June 1 to July 23, 1889.

<p>Intoxicating Liquors — Cross-examination — Exceptions — Appeal — Record — Arrest of Judgment.</p> <p>At the trial of a complaint for keeping intoxicating liquors for unlawful sale, there was evidence tending to show that they were so kept to be sold over a public bar; and after the defendant had described the structure in question, the question was allowed to be put to him on cross-examination, against his objection,</p> <p>“Did you keep a bar 1 ” and he replied in the negative. Held, that the defendant had no ground of exception.</p> <p>On an appeal from a district court in a criminal case, the record showed that the defendant was brought before that court by virtue of a warrant to answer to a complaint which was set forth, and that he pleaded thereto, and, after trial and conviction, appealed. Held, that it was too late, after trial and a verdict of guilty in the appellate court, to object that a copy of the warrant was omitted from the record.</p>

<p>Complaint on the Pub. Sts., c. 91, § 58, to the District Court of East Norfolk, alleging that the defendants, on January 18,1889, at Braintree, “ did then and there unlawfully take one thousand smelts in another manner than by artificially or naturally baited hand hook and line, to wit, by means of a seine and net, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>At the trial in the Superior Court, on appeal, before Pitman, J., the defendants before the jury were impanelled renewed a motion to quash, made and overruled in the District Court, on the following grounds: “ Because it does not set forth any offence • because it does not sufficiently describe the act of defendants; and because said complaint is uncertain and insufficient as to acts and means, and does not charge any offence within the meaning of the statute.”</p> <p>The judge overruled the motion; the defendants were then tried and found guilty, and thereupon alleged exceptions.</p>

<p>Intoxicating Liquors — Common Nuisance — Evidence.</p> <p>At the trial of an indictment on the Pub. Sts. c. 101, §§ 6, 7, for keeping a common nuisance, it appeared that the defendant’s tenement was the southerly half of a house with a front and a rear entrance, the other half being divided into two tenements with like entrances; that the defendant was, with his son, in his own tenement just before it was searched, and that just afterwards the son was seen in the front door of the front tenement in the northerly part of the house. Evidence was then offered, that immediately afterwards the son was seen to throw two bottles of lager beer from a window of the rear tenement in the northerly half of the house. Held, that the evidence was competent.</p>

<p>Insolvent Debtor — Assignment for Benefit of Creditors — Advances — Legal Services.</p> <p>An insolvent debtor before he was put into insolvency stopped his business and made a voluntary assignment for the benefit of creditors. The assignee before acceptance took certain property of the insolvent as security for advances made by him in good faith for the payment of wages then due the insolvent’s workmen, for which they were threatening to sue him. Subsequently, the assignee accepted the assignment and collected a sum of money due the insolvent, out of which he in good faith paid for legal services rendered in protecting the rights of all parties. Held, that the assignee was entitled to his advances, and to the expenses incurred by him for such legal services.</p>

Two actions of CONTRACT, to recover wages alleged to be due from the defendants to the plaintiffs. The cases were tried together in the Superior Court, before Staples, J., who refused to rule that the actions were prematurely brought, and that on the evidence-the plaintiffs could not maintain the actions, and submitted the cases to the jury, who returned a verdict for the plaintiffs; and the defendants alleged exceptions. : The facts appear in the opinion.

<p>Railroad— Taking of Land for Station Purposes — Taxation.</p> <p>A railroad company, as required by the St. of 1884, c. 157, § 1, discontinued its location over certain land within the limits of its road, used by it for station purposes, and, as authorized by § 2, took another parcel of land, a narrow strip of which was within its original location but had been sold by it, outside the limits of its road “for station purposes, and for tracks and yard room, to be used in connection therewith." Held, that the whole of the parcel was taken for station purposes, and under the Pub. Sts. c. 112, § 92, and the St. of 1884, c. 157, § 5, was subject to taxation.</p>

<p>Absolute Deed as Security — Sale on Execution, of Debtor's Interest — Writ of Entry.</p> <p>The equitable right of a debtor to redeem from an absolute conveyance, made in good faith but by way of security, cannot be taken on execution unless the land is held “ on a trust for him whereby he is entitled to a present conveyance ” within the meaning of the Pub. Sts. c. 172, § 1.</p> <p>Land was conveyed in good faith by an absolute deed to secure future advances, equal to or exceeding its value, and the grantee afterwards conveyed it to his grantor’s wife, who knew when she took her deed that her husband’s conveyance was by way of security only. Subsequently the land was attached and sold on execution as belonging to her husband. Held, that the land was not held on a trust for her husband, so that his equitable rigiit to redeem could be taken on execution, and that the purchaser at the execution sale could not maintain a writ of entry to recover it from the wife.</p> <p>The demandant asked the presiding judge to instruct the jury, that, if the original deed was given as security for advances, the fact that it was absolute in form would be some evidence of fraud, especially if the grantor was deeply indebted at the time. The judge refused to give the instruction in that form, but instructed the jury that the fact referred to might be considered on the question of fraud. The judge also refused to instruct the jury that knowledge on the wife’s part that the original conveyance was intended as security would be evidence of fraud on her part. Held, that the demandant had no ground of exception.</p> <p>Evidence of declarations of the husband after his conveyance was admitted, without objection, owing to a misunderstanding on the part of the teriant’s counsel. Held, that the evidence was inadmissible to impeach the tenant’s title, and that the judge had a right to direct the jury to disregard it.</p>

<p>Promissory Note — Corporation — Knowledge of Agent — Authority of Treasurer.</p> <p>The president of a bank, acting in his own interest and not in that of the bank, procured the discount of certain promissory notes of a cattle company, given by its treasurer, from the directors of the bank, who had no knowledge or notice of any fact affecting the validity of the notes. Held, that the bank was not chargeable with the president’s knowledge of any such fact, and, in the absence of evidence to the contrary, was warranted in assuming that the company had the power to issue, and its treasurer the authority to give, the notes.</p>

<p>Will — Specific Legacy — Ademption.</p> <p>A testatrix, who owned twenty shares of certain railroad stock at the time of making her will, bequeathed “ ten shares of the stock " to a religious society, provided it should keep a cemetery lot in order, and ten shares to another legatee, and gave none of it to any one else. The rest of the will disposed of different items of her property as it then stood, and of the proceeds of “ the balance of my stock as per my stock-book, my furniture, and all other property not otherwise disposed of by me." Subsequently, she sold the twenty shares and reinvested the proceeds, after which, by a codicil revoking a pecuniary legacy, she republished the will. Held, that the legacy of the stock was specific, and was adeemed by the sale thereof.</p>

<p>Bill in equity, filed in the Superior Court on April 1, 1889, by the owner of lots marked 27, 28, and 44 on a plan, which lots are situated at Nantucket Bluff, so called, in Nantucket, between a public way, called North Street, on the west, and Cliff Avenue, a private way on the east, to restrain the defendant, who was the owner of the lots marked 4, 5, 9, and 10 on the same plan, situated to the east of the plaintiff’s lots, from obstructing the plaintiff’s use of certain ways. A sketch of the material portion of the plan is printed in the margin, North Street was shown on the plan as situated about two hundred feet to the west of the portion thereof included in the sketch, and as diagonally crossing from the northwest to the southeast Mooers Avenue and Nantucket Avenue, shown on the plan, which lead from Grant Avenue into North Street. The case was heard by</p> <p> </p> <p>Hammond, J., who reported it for the determination of this court. The facts appear in the opinion.</p>

<p>Record — Amendment—Verdict — Res Judicata.</p> <p>A case came on for a second trial after the sustaining of exceptions alleged at the former trial. Before it was opened to the jury the presiding judge ordered the record of the former proceedings, which simply showed a general verdict for the plaintiff, to he amended to conform to the bill of exceptions, which recited that the jury, being directed to find a general verdict, and, if for the plaintiS, to answer how much they found on a certain count, returned a general verdict for the plaintiS, and, in reply to the question, said that they found nothing for the plaintiS on that count. The record having been amended, the judge ruled that the case on that count was not open to the plaintiS. Held, that the plaintiS had good ground for exception.</p>

Tobt for personal injuries occasioned to tbe plaintiff while in the defendant’s employment. At the trial in the Superior Court, before Blodgett, J., the plaintiff contended that he was entitled to recover by reason of the defendant’s failure to instruct him as to the danger of the work he was set to do. The plaintiff’s evidence tended to prove the following facts.

<p>Tort, by the administrator of the estate of Nathan W. Fellows, for the conversion of a promissory note.</p> <p>At the trial in the Superior Court, before Mason, J., it appeared that the intestate died on December 10,1887, at the age of eighty-four years and four months; that for several years before his death he had not worked at his trade, which was that of a blacksmith and stone-cutter; that from May 1, 1884, until his death, the defendant, who was the son of a niece of the testator, acted as his business manager and adviser, and was the custodian of his title deeds and bank-books. The defendant, who was called as a witness by the plaintiff, testified, that on August 7, 1884, he lent to one Todd, who was the defendant’s father-in-law, five thousand dollars belonging to the intestate, with the latter’s knowledge and consent, and took the note in question of Todd therefor, which was made payable to the order of the intestate, with interest, in six months from date; that this note was renewed five times, the interest being paid by Todd to the defendant, and by him to the intestate; that just before the note, as renewed, became due, on August 7, 1887, the intestate sent for the defendant to call and see him, and he did so at once, at the intestate’s house; that the intestate said he was not feeling well, and that he had got most through ; that the intestate then went upstairs and came back with the Todd note, and told the defendant that he wished him to have it, and that it was his ; that the intestate got a pen and ink, and wrote his name on the back of the note so that the defendant could use it, and told the defendant that he wished him to have it and keep it, and that he hoped he would make good use of it •, that he had a thousand dollars in the savings bank in addition to his home, which was all clear, and that amount would be more than enough to carry him through ; and that up to the time of the intestate’s death he and the defendant were on very friendly terms.</p> <p>The plaintiff contended that no gift was ever made by the intestate to the defendant, and that, if any was made, it was procured by fraud and undue influence, practised upon an old man in his dotage and unused to business by his confidential adviser and business manager, and offered further evidence tending to prove the intestate’s mental condition. Among other witnesses, the plaintiff called one Ricker, who, against the defendant’s objection, testified that on or about November 4, 1887, he had a conversation with the intestate, in which the latter said, that he might as well spend his money as to leave it in a few days to be quarrelled about; that he wished to spend a sum of money for curbstones around a cemetery lot; and that he proposed to have his will made. One Dennison, called by the plaintiff, testified, against the defendant’s objection, that he had a conversation with the intestate in the early part of September, 1887, during which the intestate showed him a memorandum respecting the Todd note in the defendant’s handwriting, upon which the intestate, referring to this memorandum, said, “What dp you think of that?” that “it was a damnable thing, that he could put Moore through for it and shut him up,” and that he knew nothing about Todd, and had nothing to show for the five thousand dollars he had lent him. The plaintiff testified, against the defendant’s objection, that in the early part of September, 1887, the intestate said to him that the defendant had let Todd “ have some of his money, and he had n’t anything to show for it,” that he should hold the defendant “ accountable for it,” and that the defendant was “ a great rascal.”</p> <p>The judge instructed the jury, in substance, that the plaintiff sought to recover on two grounds; first, that the defendant’s story as to the alleged gift to him was untrue, and was a fraud and pretence, and that there was no gift in form even; secondly, that if there was a gift in form, such were the relations between the intestate and the defendant that there was undue influence exercised by the latter, and it was not the free and intelligent act of the intestate and thus was not valid; that upon the first proposition, namely, that there was actual fraud by the defendant, the intestate’s declarations were not evidence in behalf of the plaintiff; that, if the jury were not satisfied that there was actual fraud, but were satisfied that there was a gift of the Todd note in form, then they were to inquire whether there was undue influence, and upon this question an important element was the condition of mind of the intestate ; that his age and his peculiarities of mind were all competent matters for consideration in determining whether undue influence was exercised; that it was upon this issue that the testimony with reference .to his declarations about his business and about this particular transaction were competent; that they were not competent as evidence of the facts stated by the intestate, but were competent to be considered in estimating the condition of his mind as to how far he was competent to transact business, how far he was susceptible to influence from his confidential agent, and how far he was competent to act independently upon his own judgment; that in the heat of argument counsel had argued to them from the testimony with reference to the intestate’s declarations upon the question of actual fraud; that they were to bear in mind, however, that that testimony was not competent for their consideration upon that question; and that it was competent only upon the question of the mental condition of the intestate, and his susceptibility to the influence which it was alleged was exercised by the defendant, and which they were to consider with reference to all the circumstances of the relations between the parties.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tobt for personal injuries. The second count of the declaration, which was by way of amendment to the first count, contained the following allegations: “ And the plaintiff says that heretofore, to wit, on the eighth day of November, a.d. 1888, the defendant was the owner of, and had the management and control of, a certain vessel, to wit, a boat or barge named and called the Mabel Stoddard; that said vessel was then lying at a certain wharf in said Boston, to wit, at the…

<p>Sale — Married. Woman — Agency of Husband.</p> <p>In an action to recover the price of fertilizers bought by the defendant’s husband, there was evidence that he had conveyed to her his farm, on which she was carrying on the business of farmer and milk-dealer on her own account when the fertilizers were bought; that she employed her husband to carry on the farm for her; and that, as directed by her, he bought everything that was needed on the farm, and that fertilizers of the kind purchased by him were used thereon. Held, that there was evidence for the jury that the defendant’s husband was her agent in the purchase of the fertilizers.</p>

<p>Contract on the Pub. Sts. c. 87, §§ 82, 33, brought by the Treasurer of the Commonwealth, for money paid for the support of an insane pauper in a State lunatic hospital, from February 9, 1886, to June 30,1887. 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>Helena Barrett, who then had a settlement in the defendant city, was on May 21, 1884, convicted of an assault with intent to murder, and sentenced by the Superior Court to the reformatory prison for women for the term of five years. While thus confined she was duly adjudged insane, and removed to the State lunatic hospital at Worcester on February 9, 1886, and her support there was paid for by the Commonwealth until June 30, 1887, her sentence not having then expired. If, upon these facts, the defendant was liable for her support, a certain sum was admitted to be due to the plaintiff.</p>

<p>Attorney and Client — Contract for Professional Services — Public Policy.</p> <p>The retaining of counsel, avowed as such, for a definite sum, to appear before a board of street commissioners and argue the questions whether there is a public necessity for laying out a street, and what damages should be allowed those whose land is taken therefor, is legal.</p> <p>In an action to recover for professional services, there was evidence that the plaintiff, a member of the bar as well as chairman of the city committee of a political party, agreed for a fixed sum with a landowner to appear before the board of street commissioners of the city to advocate the laying out of a street througli his land, and to present his claim for damages; and that the plaintiff, in addition to other services rendered by him, which were not open to question, went at least three times a week for several weeks to see the street commissioners before any public proceedings were begun for laying out the- street. Held, that it could not be said, as matter of law, that there was no evidence of a legal contract.</p>

<p>Personal Injuries — Master and Servant — Railroad — Risk of Employment.</p> <p>The conductor of a switching crew, in charge of all movements of cars within or about a railroad freight yard, and familiar with his duties and the usages of the yard, while acting as such in the daytime, and attempting to couple two cars loaded and handled in the usual way, was struck on the head by a piece of timber projecting from the end of one of the cars, and was killed. Held, that he assumed the risk of what he did, and that an action could not be maintained against the railroad company for causing his death.</p>

<p>Savings Bank— State Tax — “ Deposits ” — Guaranty Fund — Undivided Profits.</p> <p>The guaranty fund and undivided profits of a savings bank are not liable, under the Pub. Sts. c. 13, § 20, to a State tax as “ deposits,” that term denoting only the amounts deposited in the bank, together with all interest and dividends accruing thereon and payable to depositors.</p>

<p>Bill in equity by the surviving trustees under an assignment for the benefit of creditors made by Aaron D. Williams, who was the executor and trustee under the will of Nancy Williams, against such creditors, as well as certain beneficiaries under the will, for instructions as to the distribution of the proceeds of the property assigned to them. The case was heard by W. Allen, J., who made a decree that none of the property assigned was charged with any trust entitling the claims of such beneficiaries to a priority over those of other creditors, but that such beneficiaries might be admitted to share with the general creditors, and reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>jReceivers of Savings Bank — Repudiation of Treasurer’s Illegal Acts — Election.</p> <p>The treasurer of a savings bank had shares of stock belonging to it transferred to a national bank, and, on the pledge of new certificates issued to such bank, borrowed a sum of money in the name of the savings bank. The debt not being paid, the national bank sold the shares of stock under a power given in the name of the savings bank by the treasurer. These acts of the treasurer were entirely unauthorized, and were repudiated by the receivers and trustees of the savings bank as soon as known, and were never ratified. Held, that the receivers could not maintain an action of contract against the national bank to recover the proceeds of the shares sold by it, or the excess of such proceeds above the loan.</p>

<p>Promissory Note — Interest — Demand.</p> <p>The following instrument, “I. O. U., E. A. Gay, the sum of seventeen dolls. for value received. John R. Rooke,”—is an acknowledgment of debt by the maker, and not a promissory note.</p> <p>Interest will be computed in an action on such an instrument, in the absence of contract, usage, fraud, or an earlier demand, from the date of the writ only.</p>

Contract upon four promissory notes, dated December 2, 1887, given by the defendant to the plaintiff. Trial in tbe Superior Court, without a jury, before Lathrop, J., who found the following facts, and reported the case for the determination of this court, in substance as follows. The notes in question were given to the plaintiff in renewal of a promissory note for $167.75, dated December 10, 1886, and signed by the defendant.

<p>Tort for personal injuries occasioned to the plaintiff while in the defendant’s employ by being struck by an elevator car. At the trial in the Superior Court, before Hammond, J., there was evidence tending to prove the following facts.</p> <p>The defendants were tanners, and used in their business a building two stories high, in which there was a freight elevator running from the first to the second floor, a distance of about eleven or eleven and a half feet. The elevator was put in at the erection of the building, in 1877, and was constructed and used to carry leather to and from the second story of the building. The elevator car weighed from five hundred and fifty to six hundred pounds, and ran between two posts, to which were attached wooden slides fitting into wooden grooves in the opposite sides of the car. This elevator well was situated at the end of the building, and on the first floor was between two rooms, called respectively the pressroom and the tanyard-room, and opened into each by means of double doors. These rooms were connected by a door outside of the elevator well, by means of which a person could go from one room to the other without going under the elevator ear through the elevator well. There was also a door opening from each of these rooms near the elevator into the yard outside of the building, forming an outside means of communication from one to the other. On each side of the elevator well in both the pressroom and the tan yard-room, the defendants had caused to be put up, about six feet from the floor, a sign consisting of large black letters, and reading, “ No passing through the elevator well.” On each side of the cross head of the elevator car was placed a sign reading, “ Riding on the elevator strictly forbidden.” There were several such signs on the elevator well in the second story, where there were automatic guards to prevent persons from walking into the well when the doors were open. The elevator was provided upon both stories with double doors, which when shut completely closed in the elevator well. There was no safety apparatus on the elevator car, or any other safety apparatus whereby the car would be securely held in the event of accident to the shipping rod or hoisting machinery.</p> <p>The elevator was of the kind known as the worm or worm-gear elevator, in common and general use, and was sufficient in its plan and construction. The machinery which operated it was set in motion by means of a shipping rod, which was situated inside the well and was reached by the person handling it from the pressroom near the door opening therefrom into the well. There was, as shown by a model used in evidence at the trial, a space of several inches between the opposite sides of the elevator well and the corresponding sides of the car as it hung in the well or passed up and down between the floors of the building. The shipping rod was hung in this space, about an inch from one side wall of the well and several inches from the line of passage of the car, and about five inches from the double doors, opening into the well from the pressroom. To bring the elevator car down it was necessary to push the shipping rod up, and this would cause the drum on which was coiled the rope attached to the car to unwind the rope and lower the car. The operation of the elevator was such that the car in descending would, about a foot from the bottom of the well, strike a dog on the shipping rod, which would throw off the belt causing the car to be lowered, and the car would then stop; and there was a similar dog at the second floor to stop the car in ascending. If the elevator were prevented from reaching the dog at the bottom, the rope on the drum would completely unwind, and would then wind up backwards and pull the car back again to the top of the well. The speed of the elevator, in its usual and ordinary motion, was about fifty feet a minute. The model also showed that the machinery of the elevator was all in plain sight from the second floor of the defendants’ building. If the elevator car should fall from the second story, it would strike an object four feet from the ground with a force of about eight thousand to nine thousand pounds, after allowing for all possible friction.</p> <p>About three weeks before the accident, a steam-pipe used for heating the building burst at a point near the elevator, and the steam, escaping into the well, caused the slides on the posts and the grooves on the car to swell, and the car to stick. One Harmon, a carpenter and millwright, intrusted by the defendants with the duty of keeping the machinery in the building in repair, at once attended to the necessary repairs. The grooves on the car were planed out, and two blocks, each about one foot long, in which were grooves, substituted therefor.- The elevator was then tried, and found to run perfectly, there being a play of one eighth to one quarter of an inch between the slides and grooves to lessen the possible friction. There was no evidence that the elevator ever stuck again. The accident to the plaintiff occurred about a quarter before twelve o’clock, noon, immediately after which he was found under the car, which was then about four feet from the ground going up. During the morning the elevator had been in constant use, and had run perfectly, and immediately after the accident it was examined and operated, and found to work perfectly and without sticking. The plaintiff, when going through the elevator well under the car, had been warned orally not to go there again, and had been cautioned the morning of the accident not to put his head in the elevator well.</p> <p>The plaintiff testified that at the time of the accident he was about twenty-five years of age; that he had been in the employ of the defendants from May 23,1884; that he had used the elevator in question off and on for about two months before the accident; that a part of his duty was to take and collect leather from various places, put it on a truck provided for the purpose, which ran on a track through the tanyard-room near the elevator, run the truck on the elevator car, send the elevator up, ascend himself by means of stairs close at hand, pull the truck off the car and distribute the leather in the drying-room; that he had used the elevator several times that morning; that he did not observe anything the matter with it; that he had just taken down an empty truck and had loaded it up again and brought it into the tanyard-room near the elevator ; that he had then gone to another building across the yard to get a drink of water, (which building was about ninety feet away,) had then come back to the elevator at the pressroom side to the place where the shipping rod was, had stood “ right on the side of the edge of the elevator well,” taken hold of the shipping rod, and shoved it up; that it did not come, and he shoved it up again ; that it did not then come; that he then put his head into the well to see if there was any slack of the elevator rope; that he then shoved the shipping rod up a third time, and then the elevator came down and struck him about the knee, across the thigh, and on the instep, and also struck his upper arms on the muscles and bruised them, and that he then became unconscious; that when he became conscious he was in the tanyard-room near the elevator, and that he did not know whether anything was the matter with the elevator or not.</p> <p>The plaintiff contended that the jury would be warranted in finding, from the nature of the accident, that it would not have occurred if a safety appliance, as required by statute, had been attached to the elevator. There was no further evidence tending to show the cause of the accident, or that the plaintiff was in the exercise of due care. The defendants requested the judge to rule that the plaintiff was not entitled to recover; but the judge refused so to rule, and submitted the case to the jury, upon instructions which permitted them to find that the plaintiff was in the exercise of due care, and could recover for his injuries.</p> <p>The jury returned a verdict for the plaintiff ; and the defendants alleged exceptions.</p>

Tort against a real estate title insurance company for printing and publishing, in the form of and by means of a circular, a false and malicious libel of and concerning the plaintiff, a real estate dealer in Boston. The answer set up, among other defences, the truth of the alleged libel. At the trial in the Superior Court, before Staples, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

<p>Mechanic's Lien for Labor— Statement in Registry of Deeds— Contract Price.</p> <p>A statement, filed in the registry of deeds by a person claiming a mechanic’s lien for labor, recited that the labor was performed under a binding contract for the erection of two cellars, “ the contract price being three dollars per square for excavation, and two dollars and fifty cents per perch for laying the stone, cement to be furnished by me,” and showed the value of the labor performed and the balance due on the contract, without more. Held, that the statement was insufficient in failing to give the entire contract price.</p>

<p>Fraudulent Conveyance — Estoppel — Subrogation ■— Equity.</p> <p>A person lent money to a married woman upon her husband’s assurance that certain real estate standing in her name was her property, and that no mort- ’ gage would be given thereon. Subsequently, on May 16, 1888, she mortgaged - the real estate to secure her husband’s note of that date, which was also secured by his mortgage of personal property. She and her husband then conveyed the real estate to his assignee in insolvency, who was also the husband’s counsel, without consideration, for the benefit of his creditors, after which her creditor attached'specially the real estate in an action at law against her. Afterwards, on June 19, the holder of the note and mortgage of May 16, as well as of the chattel mortgage, assigned the note and both mortgages, and still another mortgage made by the husband upon a mill and fixtures placed by him upon such real estate, to one who took them with notice and for value for the. benefit of the assignee in insolvency to secure the property for the husband’s creditors, and who thereupon gave notice of his intention to sell the real estate for breach of condition of the mortgage thereon. Held, on a bill in equity brought by her creditor to reach and apply the real estate in payment of his debt, and to prevent the sale, that the conveyance thereof to the husband’s assignee in insolvency was fraudulent as to the plaintiff. Held, also, that the plaintiff's equity ■ in the real estate was superior to that of the assignee of the note and mortgages, and that, upon payment to such assignee of the amount secured by it with interest, the plaintiff should be subrogated to the assignee’s rights as holder of the note and the security therefor.</p>

<p>Insolvent Debtor — Fraudulent Preference.</p> <p>A creditor brought an action against a debtor who was insolvent, and attached his property on a writ which was insufficiently served. The creditor’s attorney, after acting for the debtor in attempting to arrange a compromise with his creditors, told the debtor that he could not act for him in the action, but at the debtor’s request asked another attorney to enter an appearance. The latter, who acted without pay as a matter of accommodation, did so, and filed an answer, but, receiving no further instructions, did nothing more. The debtor was defaulted; judgment was entered for the creditor, and execution issued thereon was levied upon the property attached, which was sold, and the proceeds applied to the execution. On the same day insolvency proceedings were begun for the debtor, and an assignee was appointed. The creditor’s attorney in causing appearance to be entered intended to save the necessity of further service on the debtor, and, by collecting his client’s debt in full, to obtain an advantage over the other creditors. The debtor did not, at any time, personally intend to do or to cause to be done anything which would give a fraudulent preference to the creditor. Held, that there was a “preference” within the meaning of the Pub. Sts. c. 157, § 96, on the part of the debtor, and that his assignee was entitled to recover the proceeds of the sale on execution.</p>

<p>Attorney at Law — Individual Liability of Administrator — Writ and Declaration — Amendment.</p> <p>A writ ordered the attachment of the “ goods and estate of G. C. 0., administrator estate of J. W. deceased,” and summoned him to answer to the plaintiff in an action of contract, and the declaration in its title described the defendant by the same addition, and averred that the defendant owed the plaintiff for services performed “ by the plaintiff for the defendant and at his request,” according to an account annexed, and for money to which the plaintiff was entitled by the law of the place where the “ contract between the plaintiff and defendant was performed.” Held, that the action could without any amendment be maintained against the defendant in his individual capacity.</p> <p>At the trial, there was evidence that the plaintiff, an attorney at law, was employed by the defendant’s intestate to prosecute a claim before the Court of Commissioners of Alabama Claims, and filed a petition therefor; that the defendant signed an amendment to the petition prepared and filed by the plaintiff, which set forth that “his attorney in this case” was the plaintiff; and that subsequently the plaintiff rendered services as an attorney to the defendant, and an award for a considerable sum was made to him for the estate. Held, that the evidence warranted a finding that the defendant was liable to the plaintiff.</p>

Libel eor DIVORCE, filed August 25, 1887, brought by a wife against her husband, alleging that he had been sentenced to imprisonment at hard labor for more than five years in a state prison. Hearing before Lathrop, J., who reported the case for the determination of this court as follows. The parties last lived together as husband and wife in Boston early in 1886, at which time the libellee left the Commonwealth.

<p>Tort for personal injuries sustained by the plaintiff, on May 29, 1872, while in the defendant’s employment. Writ dated June 16, 1885. At the trial in the Superior Court, before Blodgett, J., after the former decision, reported 146 Mass. 182, there was evidence tending to prove the following facts.</p> <p>The accident to the plaintiff occurred in the finishing-room of the defendant’s mill, a room filled with machines, including shears and gigs, the latter cylindrical machines for rubbing up the nap of the cloth. The gigs were about five feet high and square, and had upon one side gearing, in plain sight, consisting of three cog-wheels, each about eighteen inches in diameter, and one small cog-wheel about one and a half inches in diameter. The cylinder of each gig stood in an iron frame fastened to the floor by four legs, the bottom of the cylinder at its lowest point being about one and a half feet from the floor. Nothing obstructed the view underneath the cylinder except so far as the cylinder itself did so. The cylinder and the gearing, both of which revolved rapidly, moved always in the same direction. Two of these gigs stood together in the room, the distance between them at the narrowest point from the cog of one gig to the belt wheel of the other being about one and a half feet, with a passageway between them and adjoining machines. The plaintiff was injured by being caught in the gearing at a point three and a half feet from the floor, where the small cog-wheel came in contact with one of the other cog-wheels. The plaintiff and other boys were employed in the finishing-room, and his duty, as instructed by them, was to take cloth from an apron on the back of the finishing shears, and wheel it on trucks through one of the passageways to another room, called the gig-room; also to take cloth from racks and wheel it to the shears and fasten it upon the apron. These racks were small flat platforms about four inches from the floor, and stood directly in front and within six inches of the two gigs, but were not connected with them. The plaintiff’s duties did not require him to go between the machines, or to have anything to do with the gigs for the purpose of oiling them or otherwise, his only duty being to take care of the cloth. The regular way to the gig-room was through the 'passageway above mentioned, but there was room for a man to pass with care between the gigs when they were running, and some of the men and boys occasionally went to and from the gig-room in that way, but the space was not designed or intended for a passageway. One Craven was the overseer of the finishing-room when the plaintiff began to work there, but just before the accident one Miller was made overseer in his place.</p> <p>The plaintiff testified that he was born on February 12,1860 ; that he went to work in the finishing-room in April, 1872; that he had worked for a while previously in the fiock-room, a room adjoining the finishing-room, his only duty being to shovel flocks into a flocking-machine and to carry away the cloth when flocked; that Craven told him when he began work to do what the other boys told him to do; that with the other boys he wheeled cloth from the racks to the shears, and thence when sheared into the gig-room; that he had nothing to do with the gigs, and did not think that he came within two feet of them in doing his work; that after he had worked in the finishing-room about six weeks, on the morning of the accident, as he was returning from wheeling some cloth into the gig-room and was proceeding along the passageway, Miller spoke to him sharply, and told him to get a punch that had been left between the two gigs where Miller had been mending a machine, and then told him to hurry up about it; that he thereupon left his work, and in going to the place where he was told to go he hurried as fast as he could, and went in between the gigs; that he had never done or helped to do anything on a gig, and had no recollection of having previously gone between them, and did not know or believe that he ever looked at or examined these machines; that when between the gigs he began to look for the punch, and, as he could not see anything while he was standing up, he stooped down to see if he could find it; that as he raised himself up the sleeve of his jacket was caught in the gearing and his arm was drawn in and injured; that he did not know until afterwards by what he had been caught; that when he went between the machines and searched for the punch he did not realize that there was any danger; that before and after going into the mill he had not received or been given any instructions with reference to the danger of the machinery or of the gearing, and had no knowledge of the danger of either; that he had no recollection of noticing that the machinery in the gig-room or finishing-room was in operation; and that the only knowledge he had that they were running was from being caught.</p> <p>The plaintiff introduced numerous witnesses, who testified that the plaintiff was at the time of the accident a boy of less than the average intelligence of boys of his age; but this was contradicted by various witnesses of the defendant. There was also evidence tending to show that the place where the injury occurred was dimly lighted. The jury took a view of the place.</p> <p>The judge refused to rule, as requested by the defendant, that, upon all the facts, the jury would not be justified in returning a verdict for the plaintiff; and submitted the case to the jury, with instructions not otherwise excepted to.</p> <p>The jury returned a verdict for the plaintiff in the sum of $5,000 *, and the defendant alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employment. At the trial'in the Superior Court, before Thompson, J., the jury returned a verdict for the plaintiff, on June 5, 1889, and the defendant alleged exceptions to certain rulings of the judge at the trial, which the judge allowed ; and the plaintiff alleged exceptions to the allowance of the defendant’s exceptions. The facts appear in the opinion.

<p>Action of Tort — Declaration — Damages — Evidence.</p> <p>In an action of tort, under a count alleging injury to the plaintiff’s tenement-house from the flow of water from melting ice and snow deposited by the defendant upon a lot of land and private way opposite the plaintiff’s premises, no recovery can be had for injury to the land as distinct from the house, or of nominal damages, if no injury was done to the building.</p> <p>Under another count in the same action, alleging that the plaintiff was hindered and deprived of the free use of the way by the obstructions placed on it by the defendant, evidence of injury to his property, or of obstructions not injurious to the plaintiff personally, is not competent.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by falling down a flight of stairs leading to a tenement occupied by the plaintiff as a tenant at will of the defendant.</p> <p>At the trial in the Superior Court, before Pitman,■ J., there was evidence that the tenement was one of several tenements let by the defendant in the same building, and was situated on the second floor of the same; that the stairs in question led from the first floor to the second floor in the rear of the building, and were owned and controlled by the defendant; that these stairs were used in common by all the tenants in the building, and were the only means of access from the second floor to the cellar, which the tenants used for the storage of fuel and various other articles; that at the head of the stairs was a platform or landing from which access was had to the plaintiff’s tenement through an entry; and that the plaintiff during the evening of March 16, 1888, while going with a light from her tenement through the entry to the stairs, stepped upon the platform, and, her foot being caught by a projecting piece or sliver of board, she was thrown down the stairs and injured.</p> <p>The plaintiff testified that the premises were in the same condition at the time of the accident as when she hired it; that the platform was constructed of old, rough boards, which were covered with slivers and were coming to pieces; that she had frequently observed the condition of these boards during her tenancy as she passed over the stairs, and within a month of the accident had observed that the portion of the board against which she struck her foot was sticking up; and that there had been no change in the condition of the boards since she had occupied her tenement, save what had been caused by the wear of the same.</p> <p>The judge ruled that, on these facts, the plaintiff could not maintain an action, and ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Bill in equity, filed December 5, 1887, against Silas H. Pomeroy, Charles Atwater, and William Turnbull, individually and as trustees under the will of Theodore Pomeroy, and against Theodore L. Pomeroy, by the first named plaintiff and others doing business under the firm name of Samuel Thompson’s Nephew & Co., in behalf of themselves and other similar creditors of the trust estate, to reach and apply such estate in payment of their debts. The case was referred to a master, who allowed the claims of the plaintiffs, and of many other creditors of the estate, and reported specially upon certain other claims made before him. Hearing before 0. Allen, J., who reserved the case, upon the pleadings and the master’s report, for the consideration of the full court. The facts appear in the opinion.</p>

<p>Two ACTIONS OE tort, for flooding the plaintiffs’ premises with surface water.. Writs dated December 22, 1887. The declarations alleged that the plaintiffs, in carrying on a manufacturing business, successively occupied a parcel of land in Westborough, the plaintiff in the first case before December 1, 1885, and the plaintiffs in the second case since that time. The eighth count in the declaration in each ease alleged that the land in question was drained by a ditch entering a common drain, which crossed Brigham Street, a public way, and the Boston and Albany Railroad, and thence passed into the land of Timothy A. Smith; that the plaintiff had a right of drainage through this ditch, and thence through the common drain; that “ the defendants have constructed a large number of drains or sewers, through and by which large quantities of water, which would not otherwise flow through said Brigham Street drain, were turned into said Brigham Street drain, so as to choke it up, so that the water from the land occupied by the plaintiffs could not flow through said Brigham Street drain, but was kept and retained upon the said land; and it was the duty of the defendants to keep said drain clear and unobstructed, but that the defendants carelessly and negligently allowed said drain to become obstructed, so that the water from the land occupied by the plaintiffs could not flow through said Brigham Street drain, but was kept and retained upon said land; and said sewers were so badly and negligently constructed, and so negligently and improperly managed and cared for, that the said Brigham Street drain became filled with earth and refuse, so that the water from the land occupied by the plaintiffs could not flow through said Brigham Street drain, but was kept and retained upon said land, and the water collected by said drains and sewers was turned into said Brigham Street drain and into the aforesaid ditch, and thereby was caused to flow upon the land occupied by the plaintiffs; and because said water was so collected by said defendants, said defendants were bound to keep said Brigham Street drain clear and unobstructed, but they allowed said drain to become so filled with earth and refuse that the water could not flow through said Brigham Street drain, but was kept and retained upon the land occupied by the plaintiffs; and the defendants have entered upon the land of said Smith, and have obstructed and hindered the flow of the water upon said Smith land, and made and placed upon said land a box or trough, which was made of boards or planks, for the water to flow in, but said box or trough was so small and narrow, that the water which passed through said drain under Brigham Street could not flow through said box or trough, but was stopped and held back, so that the water was kept back and retained upon the land occupied by the plaintiffs, to the great injury of the plaintiffs’ business,” in a manner described.</p> <p>At the trial of both cases together in the Supei’ior Court, before Staples, J., there was evidence tending to prove the following facts.</p> <p>From the plaintiffs’ premises, which were situated south of Brigham Street in Westborough, extended a stone drain northerly over intervening land to that street, which was duly laid out as a town way in 1856, and there entered a culvert, which passed under and across the street, and, by permission of the Boston and Albany Railroad Company, under its road, north of that street, into the land of Smith, which lay still farther to the north, and there discharged into Cedar Swamp, so called. In May, 1876, at a meeting of the defendant town called for the purpose, a report of the road commissioners “ upon removing obstructions and causing a free passage of water . . . under the railroad track over the land of T. A. Smith,” was presented, reciting that the commissioners had examined the condition of the existing drain, and found it to be nearly or quite filled up, and almost useless; that the drain could be opened, so as to afford temporary relief; that the culvert under Brigham Street and the railroad would have to be relieved, and that a plank drain eight by twelve inches in size should be built; that the whole work could be done for two hundred and fifty dollars, exclusive of cleaning the stone culvert under the street and railroad; that “ Mr. T. A. Smith, over whose land the plank sewer would have to be laid, is willing to give the town a lease of the privilege for not exceeding five years, for the nominal sum of one dollar (with a proviso that no present right of the town or Mr. Smith shall be prejudiced by this payment). And the commissioners believe that, whether the town decides to accept and construct a more permanent work, as contemplated by the laying out of a sewer through Brigham Street, or not, at this time, it is needful for the health of the village that something should be done for immediate relief. The more permanent work cannot be accomplished to be of any service this season. That the more permanent work is demanded at an early day, no one who understands the situation of things can for a moment doubt.” This report was adopted by the defendant town, and thereupon Smith granted a lease or license to the town for a nominal consideration, for the term of five years, to build the suggested box drain on his land. Immediately thereafter the road commissioners cleared out the culvert under the street and railroad, and constructed and put in the box drain on Smith’s land from the northerly end of the culvert to an open ditch in the swamp, and thenceforward the water passing through the culvert was discharged into and through this drain. The defendant town from time to time constructed a system of sewers under different public streets for carrying off surface water, which with other drains united and led into a sewer which was laid along Brigham Street, and which discharged into and through the culvert across it into the box drain. The surface water by reason of these sewers and drains was accumulated and discharged in greater quantities into the culvert than before, and was caused to flow more rapidly. After the lease or license from Smith expired, in May, 1881, the box drain remained in the same place, without any objection on his part, and continued as before to serve the same purpose in receiving and carrying off the discharge from the culvert. Further negotiations were had with Smith by the defendant town, and on November 8, 1887, it was “Voted, that the town construct a wooden drain from the Boston and Albany land, near Brigham Street, to Cedar Swamp, ... on the terms offered by said Smith to the town, and to enlarge, if necessary, and perfect the drain from the south side of Brigham Street.”</p> <p>The old drain was afterwards removed by the town and a larger box drain put in its place, which, however, was not completed until after these actions were brought. The plaintiffs had gained a prescriptive right to discharge the surface water accumulating on their premises through the stone drain, culvert, and box drain into the swamp. Within six years the stone drain and the culvert had become partially filled up on several occasions, and the box drain had failed at times freely to discharge the water flowing into it; from some or all of which causes the water had been set back, and had overflowed the plaintiffs’ premises, causing the injuries in question.</p> <p>The jury took a view. The defendant asked the judge to give, among others, the following instructions:</p> <p>“ 1. There is no sufficient evidence to warrant a verdict for the plaintiffs on any of the counts.</p> <p>“ 2. There is no evidence to show that the town was under any obligation, as against the plaintiffs, to keep the culvert or drain which crossed Brigham Street free from obstructions. . . .</p> <p>“ 4. There is no evidence that the town had any right to go on the Smith land, at any time after the lapse of five years from 1876, and the mere permitting the first box drain to remain on that land, after the lapse of the five years provided for under the vote of 1876, would not be a tort, for which the plaintiffs could recover against the defendant, even though the box was too small, and obstructed the flow of the water, to the plaintiffs’ injury.</p> <p>“5. There is no evidence to show that the defendants are liable for any obstructions in the culvert under the railroad, nor in the stone culvert on Smith’s land, nor for any obstructions in the culvert [stone drain] south of Brigham Street.”</p> <p>The judge refused so to instruct, but submitted the case to the jury on the eighth count alone, and instructed them, among other things, that the town had the right, in 1876, to go beyond the limits of Brigham Street, by permission of the railroad and of Smith, for the disposition of surface water; that the act of the town, in voting to put in the box drain over the land of Smith, was an act which the town had a right to do; that it had the right to make a contract with Smith for putting in the box drain for the purpose of disposing of its surface water, the arrangement being that such water should go into the culvert, and then be carried along in the stone drain under the railroad, and then through the box drain out into Cedar Swamp; that the five years would expire on May 12, 1881; that there was evidence which would warrant the jury in finding that there was a permission on the part of Smith, even after that time, in the fact that the box drain continued to be there, and • continued to be used, without any evidence of objection, or order to the contrary, on his part; and that if the box drain as maintained by the town, the town having the right to put it in and to maintain it, was an obstruction to the surface water, or caused it to be set back through the plaintiffs’ drain on their land, and if such maintenance of the box was negligence on the part of the town, it would entitle the plaintiff to recover. “ If the town negligently kept and maintained the box in the drain, it being an obstruction in the drain to the passage of water, and if, by reason of such negligence, the water flowed back through the plaintiffs’ drain to their premises, and did them injury, the town would be liable therefor. . . . The town is bound to exercise reasonable care and diligence to keep the culvert free from obstructions, so that the surface drainage can be provided for. If the culvert under Brigham Street, a part of this drain, was negligently suffered by the town to be obstructed, so that it could not carry off this surface water which came down in the manner described, and it thereby was caused to flow upon the premises of the plaintiffs, no other objection existing to recovery, the defendant would be liable. ... In disposing of it, the defendant must not negligently maintain the drain with which it is to be carried off, either as it respects the culvert, or by means of this box drain, if it was an obstruction. The doctrine extends further. If in so improperly constructing various drains other than the one in question, or negligently maintaining them, either by themselves or in connection with the culvert, the arrangement of the drains so constructed and maintained for disposing of the surface water being faulty, the town was negligent, then the town would be liable. . . . Under the eighth count, which alone goes to the jury in each case, the different causes are alleged as operating to produce a certain injury. If you should find that not all the acts alleged in the eighth count operated to produce injury, but that some of them did, you could still find on that count in favor of the plaintiffs.”</p> <p>The jury returned verdicts for the plaintiffs ; and the defendant alleged exceptions.</p>

Tort against Joseph L. Sweet, Eobert F. Simmons, James H. Healey, and John T. Healey, the last two doing business under the name of Healey Brothers, for malicious prosecution in procuring an indictment against the plaintiff to be found by the grand jury, upon the trial of which he was acquitted, charging him with breaking and entering a building occupied by that firm, with intent to steal certain jewelry manufactured by them, and with burning the building in the night-time.

<p>Equity— Trade Secret — Formula for Medicine— Trade-mark.</p> <p>A manufacturer of medicines according to secret formulas of his own, which he sold under various names and labels, died, and his administratrix transferred the formulas and trade-marks by way of gift to one who proceeded to make the medicines with her own plant and appliances, and to sell them under the same names and labels. Subsequently the administrator da bonis non of the original manufacturer conveyed by deed the same formulas and trade-marks to another, who began to make and sell the medicines in the same way as the donee. Meld, that the donee, even if the gift were valid, had no such exclusive right to make the medicines or to use the trade-marks as entitled him to prevent the grantee from making and using them.</p>

<p>Tout for damages caused by surface water overflowing the gutters of a street in the defendant city, and flowing thence over intervening land upon that of the plaintiff. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts as follows,</p> <p>Newton Street in the defendant city is an ancient way, running northerly across a railroad to Charles River. Benefit Street, a private way, leads off from Newton Street at a right angle to the west, between the railroad and the river. The plaintiff’s land is situated on the north side of Benefit Street, towards the river, and about one hundred and fifty feet from Newton Street. Within twenty-five years the tract of land south of the railroad and on the west side of Newton Street had been cut down, and several streets duly laid out over it, running westerly from Newton Street and parallel with Benefit Street, so graded that there was a general slope towards Newton Street. All the surface drainage of this tract, which formerly flowed northerly into the river, was diverted by these streets, and caused to flow into Newton Street. During heavy rains and thaws, the water accumulated in Newton Street from such connecting streets and otherwise flows down that street until it reaches a point north of the railroad and opposite the plaintiff’s land, and then overflows the gutters and street lines, and flows over the intervening land to and upon the plaintiff’s land. The water all flows on the surface of the land in the street gutters, there being no underground drains or other structures which empty water on to the plaintiff’s land. The only underground drain in the vicinity is one which starts south of the railroad and runs under Newton Street to the river. It empties nowhere until it reaches the river, and its only effect is to relieve the flood to the extent of its capacity. The grate over its inlet was sometimes choked up with leaves and papers, so as to prevent its carrying away all the water it is capable of.</p>

<p>Contract — Assignment of Fractional Interest — Equitable Assignment.</p> <p>The mayor of a city during the late civil war made a contract with a person to pay him for credits to be procured upon the quota of the city; and such person after-wards made an assignment under seal of one eighth of his interest in the contract, and of all his claims against the city by virtue thereof, or of whatever he might recover under it by settlement, compromise, or otherwise. Subsequently, the contract having been declared invalid, the city voted a gratuity to such person in return for his services under the contract; and pending a bill in equity brought by his assignee’s administrator to recover one eighth of the gratuity, the city paid over the amount thereof to a trustee for the benefit of all parties in interest, to whom the trustee as well as the city was ready and anxious to pay it. Held, that the assignment included one eighth of all the assignor should receive from the city because of the contract and his services under it, and was not limited to such claim as he might legally enforce. Held, also, that the assignment, upon payment of the money by the city, operated as an equitable assignment thereof, and that the administrator was entitled to receive one eighth of the money.</p>

Contract, on an account annexed, against the administratrix of the estate of Emily St. Pierre, to recover four hundred and seventy-six dollars for medical services rendered the intestate. Writ dated August 31, 1887. The defendant filed a declaration in set-off, alleging that the plaintiff had or held in trust for the intestate the sum of eleven hundred dollars, according to a written agreement annexed thereto. The agreement was as follows : “ Boston, May 1, 1881.

Contract, on an account annexed, to recover rent paid under a written lease from the defendant to the plaintiff, and for expenses growing out of the occupation of the defendant’s dwelling-house. The account annexed consisted of items of rent paid to the defendant, of the expense of caring for and of moving to and from the premises, for repairs thereon, and for the remuneration of the plaintiff and his wife for their services respecting them. Writ dated November 18, 1886.

<p>Private Railroad Crossing — Invitation to Public — Due Care of Person injured.</p> <p>A railroad ran northerly and southerly at a point where a public road came down to a station on the west side of the track. A chemical company had its works on the east side, surrounded by a fence, in which opposite the road was a gate with a lock, marked “ No Admittance,” and maintained a crossing between the gate and the road for the convenience of its own business, by the license of the railroad company. There was a public way near by leading from the road over the track to the works. A person found the gate open, and drove over the crossing through the gate to carry a friend to the works, and was returning by tlv same way just as a train, which he knew was to be expected, approached ' crossing on time. His view towards the train was obstructed by cars r' by the chemical company on a side track provided for the use of the wo1 instead of stopping, he drove upon the crossing and was struck by ,1 and injured. Held., in an action against the railroad company for sue s, that there was no evidence of any invitation or license by the defend /he plaintiff to use the crossing, or of the plaintiff’s exercise of due care</p>

<p>Defective Way—Knowledge of Defect — Cover of Man-hole — Statutory Notice.</p> <p>A horse, while being driven through a largely travelled city square, was injured by falling into a sewer man-hole therein situated. The cover of the man-hole, which was about twenty inches across and was a proper and sufficient one, was slightly misplaced, and the man-hole was open about half an inch. The city had no actual notice of the defect, and it was not known how long the cover had been misplaced. At the trial of an action against the city to recover for the injury, evidence that two or three days before the accident two men were seen cleaning out the sewer through the man-hole was relied on as showing that the city might have had notice of the defect by the exercise of reasonable care and diligence. Held, that the evidence was insufficient for that purpose.</p> <p>The notice required by the Pub. Sts. c. 52, §§ 19, 21, to be given by a person injured in his person or property by a defect in a highway, may, under the Pub. Sts. c. 27, § 117, be served by an officer upon the city or town by an attested copy.</p>

<p>Tort for personal injuries occasioned to the plaintiff, a cab driver, by a collision between the cab and a wagon of the defendant corporation, through the alleged negligence of the driver of the wagon, a servant of the defendant. After the former decision, reported 146 Mass. 596, the case was tried in the Superior Court, before Sherman, J., who refused to rule that the defendant was a public charitable corporation, and was not liable for the negligence of its servants; and, after a verdict for the plaintiff, reported the case for the determination of this court. If the refusal so to rule was wrong, the verdict was to be set aside and a new trial granted; otherwise, judgment was to be entered on the verdict. The facts appear in the opinion.</p>

Contract, to recover a deposit in the defendant bank by the administrator of the estate of William C. McCarthy. Marcus McCarthy intervened as a claimant of the fund under the Pub. Sts. c. 116, § 81.

<p>Personal Injuries — Passenger on Railroad — Contributory Negligence.</p> <p>■ A woman, who was lame, entered a railroad train, as it stopped at a station, by the front platform of the rear car, and, perceiving that car to he full, proceeded to go into the car next forward. The platforms were about six inches apart, and the intervening buffers, the tops of which were nearly level with the platforms, were in contact as the train stood still. The train, upon which she had often travelled, made a shorter stop than usual at that station, and started with a jerk just as, without looking down, she was about to step from one car to the other. She stepped upon the buffers as they separated with the movement of the train, and her foot slipped between them and was injured. Held, that she was guilty of contributory negligence, and could not recover against the railroad company for her injuries.</p>

Writ oe entry, against Cyrus C. Conant and Eunice E. Conant, his wife, to recover a parcel of land in that part of Boston called Neponset. Plea, nul disseisin.

<p>Case stated—Tax on Distinct Parcels of Real Estate — Part Payment under Protest — Action to recover back — Abatement.</p> <p>Upon a case stated, containing no express authority to draw inferences of fact, the Superior Court is confined to ruling upon the effect of the facts stated, as matter of law ; and the only question on appeal is whether such ruling was right, not whether there was any evidence to warrant a finding.</p> <p>A tax was assessed by a city to a person upon church real estate held by him in trust, as well as upon land of his own, all of which had been mortgaged by him to a savings bank; and the next year a tax upon the mortgaged premises was assessed to the mortgagee, which had other taxable real estate in the city. Such person paid the tax for both years upon the church property under protest, and then brought an action at law to recover it back. Held, that his only remedy was by abatement.</p>

<p>Railroad Fare — Stop-over Check — Maine Statute.</p> <p>A railroad ticket, bought in another State for a passage thence to a point in this Commonwealth, was by a statute of the former State good for six years, and allowed passengers to stop over at will. The passenger stopped at an intermediate point in this Commonwealth, and received a stop-over check stating on its face that it was good only for ten days. After that limit had expired, and within the six years, he renewed his journey, and tendered such cheek in payment of his fare, and it was refused. Held, that the statute only referred to transportation in the other State, and that the railroad company could maintain an action here against the passenger to recover his fare.</p>

<p>Action, described in the writ, which was dated July 9, 1888, as an “action of tort and contract,” to recover damages because of the non-delivery to the plaintiff of four shares of preferred .stock in the defendant corporation, and for the conversion of such four shares. The answer contained a general denial, and set up the statute of limitations. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The following facts were agreed. The directors of the defendant corporation, on November 18, 1851, duly voted to call a special meeting of the stockholders on December 10 following, “to take into consideration the subject of preferred stock for the purpose of paying off the floating debt and the bonds of the company becoming due July 1, 1852, and also any other modes of procuring means of paying said debt and bonds, and to act in relation to the above as may be thought proper.” The stockholders on that day, at a meeting duly called and held in pursuance of the above vote of the directors, passed the following vote:</p> <p>“Voted, that the directors of the Cheshire Railroad Company be authorized to create and issue to stockholders five thousand five hundred shares of new stock at par of one hundred dollars per share, on the following terms and conditions, viz.:</p> <p>“ First. Every shareholder shall be entitled to subscribe for and take one new share for every three old shares which he may hold, or in that proportion for a less number, and all subscribers as aforesaid shall be entitled to a dividend of three dollars per share on every three old shares to one new share subscribed for on payment of twenty per cent on said new shares with interest after the first day of January next or before the first day of February next; and on payment of said twenty per cent the certificate of such old shares shall be surrendered, and a new certificate issued for every three old and one new share, to be designated preferred stock, and the said three old shares and the twenty per cent paid on the new share shall be credited as eighty per cent paid on four shares of preferred stock. The remaining twenty per cent on the preferred stock shall be payable on the 15th of June next, and the company shall have the same rights and remedies in the collection of said twenty per cent, and such assessments shall be. regarded and treated to all intents and purposes as an original assessment within the original par value of said stock.</p> <p>“Second. The directors are hereby authorized and empowered to declare and pay semiannually dividends out of the net earnings of this company, not exceeding three per cent semiannually, on such preferred stock, and no dividends shall hereafter be paid upon any other stock of the company now in the hands of stockholders, except the same be paid out of the net surplus earnings of the company after the payment of the dividends on the pre- i ferred stock, and the net earnings of the company are hereby pledged for the payment of dividends to the amount of six per cent per annum on the preferred stock created in pursuance of said vote.</p> <p>“ Third. If after the payment of the dividends upon said preferred stock out of the net earnings of the company there shall be a surplus remaining, semiannual dividends not exceeding six per cent per annum shall be paid out of such surplus on all the old stock remaining unsurrendered, and if there remains any surplus of net earnings after the payment of all the dividends aforesaid, the same may be equally divided upon all the stock of the company, new and old, share and share alike.</p> <p>“jFourth. Every shareholder subscribing for his proportion of new stock at any time after the first day of February next shall be entitled to have his stock preferred in like manner as the above, and be entitled to all dividends declared after his subscription, adding interest from the date of the last dividend to the date of payment for said new shares.</p> <p>“ Fifth. Payment of any of the assessments aforesaid may be made in cash or bonds of the company becoming due July 1st, 1852, and the dividends payable July 1st, 1852, shall be credited to the holders of preferred stock in payment of the assessment due June 15th, 1852, it being understood that assessments may be paid in full on and after January 1st, 1852.”</p> <p>On December 17, 1851, at a meeting of the directors, the following vote was passed: “ Voted, that five thousand five hundred shared of new stock be created, and that the same be offered to stockholders agreeably to the terms of the vote passed at the special meeting of the stockholders held on the tenth day of December, A. D. 1851.”</p> <p>From January 1, 1852, until January 10, 1888, according to a schedule annexed to the report, the defendant had paid only fifty-one semiannual dividends on the preferred stock so created and issued, which dividends varied from two per cent to six per cent per annum, and amounted on an average to less than two and seven tenths per cent. The last three dividends on the preferred stock, however, were at the rate of six per cent per annum, and the two preceding ones were at the rate of five per cent per annum. The defendant received common stock and cash in exchange for the new preferred stock until February 28,1855, at which date there were outstanding 21,582 shares of preferred and 681 shares of common stock, which shares, with the exception of 582 shares of preferred and 148 of common stock cancelled in 1863, constituted all the stock outstanding of the defendant corporation. In 1870 and 1871 a committee of the directors, appointed “ to confer with certain holders of unpreferred stock who have asked or may ask attention.thereto, with authority to arrange the same by purchase or otherwise and to use preferred stock in so doing if they shall think best,” took from one Edwards eighty-two. shares of the common stock which he had purchased, and gave him in return therefor fifty shares of preferred stock, being a portion of five hundred and ninety-two shares of preferred stock which the defendant had previously bought and owned, and which constituted a part of its assets. The plaintiff, who was the owner of three shares of the common stock, in April, 1888, tendered such shares, together with one hundred dollars, and demanded four shares of the preferred stock in exchange therefor. The defendant refused to accept the tender and to issue such preferred stock. The plaintiff also offered to pay the defendant whatever sum, if any, might be due for interest under the vote of December 10, 1851, less interest and dividend as provided therein, but the defendant refused to accept his offer. The preferred shares were worth, at the time of the plaintiff’s tender, $115 per share in the market. The plaintiff contended that the transaction with Edwards was an issue of preferred stock to such Edwards under the vote of December 10, 1851.</p> <p>The judge ruled, as matter of law, upon the pleadings and agreed facts, that the plaintiff could not recover, and found for the defendant. If upon the pleadings and facts agreed the plaintiff could not recover, judgment was to be rendered on the finding for the defendant; otherwise, the case was to stand for trial.</p>

<p>Contract, on an account annexed, to recover certain expenses alleged to have been incurred by the plaintiff because of incumbrances on land conveyed to him by the defendant. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, as follows.</p> <p>On May 12, 1884, the defendant conveyed the land in question to the plaintiff, for seven hundred and fifty dollars, by a deed containing the usual covenant against incumbrances, and the plaintiff mortgaged the land on the same day for six hundred dollars, with interest at six per cent per annum. The plaintiff also mortgaged his personal property for one hundred dollars, with interest at the rate of thirty-three and one third per cent per annum. Subsequently the plaintiff discovered that the land was subject to two mortgages given by the defendant, one of them to one Harris. The defendant thereupon, at the plaintiff’s request, paid off both these mortgages before this action was brought. During the time that these incumbrances existed on the premises, and until they were removed, the plaintiff was put to actual expense in the sum of $73.82, as shown in his bill of particulars. The bill of particulars consisted of thirteen items, which were set forth without explanation. The first six items were for “ three days lost time ”; for “horse hire, visiting Harris”; for “cash paid Charles R. Damon for services”; for “cash paid horse-car fares”; and for “six months’ interest paid on” each of the two mortgages given by the plaintiff. The other seven items were for “cash paid for legal services,” which included payments for “ legal services and advice”; for “drafting two discharges of mortgage $1.00,!’ and “drafting assignment of mortgage”; for “writ in suit for breach of warranty,” and for “ service of writ ”; and for the recording “of discharges of mortgage $0.70,” and of “ assignment of mortgage.”</p>

Tort for personal injuries occasioned to the plaintiff through the alleged negligence of the defendant. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows. There was evidence tending to prove the following facts. The plaintiff was a member of the Boston Fire Department and was attached to a ladder company in the capacity of dog-man.

<p>Tax on Personal Property — Non-resident — Occupancy of Store or Shop — Slock in Trade.</p> <p>A railroad company maintained in a suburban town an extensive stock yard near its tracks, for ttie care of live animals transported over the line, until payment of its lien for freight, and for a convenient place of sale. The keeper of the yard, a resident of the neighboring city, received for his services all the fees paid for the care and feeding of the animals, he furnishing the food, and for the use of the yard. He owned and employed certain personal property in performing his duties, and stored the necessary hay and grain in a barn on the premises. He was also a member of a firm of cattle dealers, having its principal place of business in the city, which was permitted to use an office and other conveniences for transacting business at the yard, and paid precisely the same charges for the privilege as other dealers. Held, that such personal property, including the hay and grain, -was not taxable to such keeper as a stock in trade; and that neither he nor the firm hired or occupied a store or shop at the yard, within the exception of the Pub. Sts. c. 11, § 20, cl. 1, or were taxable in the town.</p>

<p>Tort by the administrator of the estate of one McGoldrick, for causing his death. The declaration, as amended, was as follows:</p> <p>“And the plaintiff says that on the third day of January, 1889, his intestate received personal injuries, in consequence of 'which he died after a few hours; said personal injuries being received while his said intestate was in the defendant’s employ, and engaged in the discharge of the usual duties of his employment upon the defendant’s premises, at or upon ‘ the farm,’ so called, in Boston, and in the exercise of due care, by reason of a defect, of which said intestate was ignorant, in the condition of said defendant’s track, frogs, guard rails and switches, ways, works, and machinery, which defect arose from, and had not been discovered and remedied owing to, the negligence of the defendant, or of some person in the service of said defendant intrusted with the duty of seeing that such track, frogs, guard rails and switches, ways, works, and machinery were in proper condition. And further, that said injuries were caused by reason of the negligence of some person in the service of the defendant intrusted with and exercising superintendence, whose sole and principal duty was that of superintendence, the said intestate being at the time said accident happened in the exercise of due care, and being ignorant of the said negligence of such person. And further, that said injuries were caused by reason of the negligence of some person in the service of the defendant who had charge or control of a signal, switch, locomotive engine, or train, on the said defendant’s railroad, the said intestate being at the time said injury happened in the exercise of due care, and being ignorant of the said negligence of such person. And the plaintiff further says, that he has duly given the defendant written notice of the time, place, and cause of said injury. And the plaintiff further says, that he brings this action under the provisions of chapter 270 of the Acts of 1887, to recover compensation for the death of the said intestate, and not for his suffering.”</p> <p>The defendant demurred to the declaration, on the ground that it did not set forth a legal cause of action. The Superior Court sustained the demurrer; and the plaintiff appealed to this court.</p>

<p>Widening of Way — Assessment of Damages — Set-off of Benefits — Betterments — Enhanced Value from Prospective Improvement — Evidence — Experts.</p> <p>Damages for taking land for the widening and improvement of a way are to be based upon the value of the land regardless of the widening, and are not to include any enhanced value due to the contemplated improvement.</p> <p>On the assessment of damages under § 3 of the betterment act, (Pub. Sts. c. 51.) for the taking of land for widening a way, special benefits resulting from the widening are not to be set off against damages, but are, under § 1, to be separately assessed; and evidence of such benefits or advantages is inadmissible.</p> <p>If buildings standing wholly or partially on land taken for widening a way may properly and reasonably be removed therefrom by the landowner, the expense of removal is a proper element of damage in assessing his damages, as bearing upon which evidence of the actual, reasonable cost of removing them is competent.</p> <p>A real estate dealer in a city, operating in land upon streets leading towards or ' into a suburban town, "who, though somewhat familiar with prices and sales of land in such town, has never lived, bought, sold, or owned land there, or estimated the values of particular lots there as the basis of business transactions, is not qualified to testify as an expert to the value of land in such town taken for the widening of a way, although he has frequently driven past the land and is familiar with it and has conversed with the owner, without having gone upon the land or into the buildings.</p> <p>An expert as to the value of land taken by a town for widening a way cannot testify in regard to awards of damages for the taking of other land for the same widening, in which he participated as one of the selectmen.</p>

<p>Devise for Support — Equitable Attachment.</p> <p>A testator, by his will, gave certain stocks in trust, the income to be paid to his son during his life, and at his death the principal to go “ to his child or children who shall survive him, provided that, if my son shall leave his wife surviving him, then his said wife shall be entitled to her support out of the same so long as she shall remain his widow.” The son died, leaving a widow, who did not marry again, and a son, to whom the trustees paid over the trust fund. Held, that the widow had no interest under the will which a creditor could reach by a bill in equity under the Pub. Sts. c. 151, § 1, cl. 11.</p>

<p>Contract — Measure of Damages — Premature Action.</p> <p>A telegraph company agreed in writing for a term of years with an individual, who was to provide an office together witli operators and a delivery service, to furnish it, to allow him a part of the receipts, and not to open another office in the place during the term. The contract was terminable at the pleasure of either party, by making to the other a cash payment equal to what would have been received if it had been carried out, determinable on the basis of the previous average yearly cash receipts. The company during the term leased its lines to another company, which moved the wires and instruments from the office and took away the business; whereupo'n the individual party to the original agreement brought an action for damages against the lessor. Held, that such lease was a breach of the contract, for which a right of action at once arose; that the damages were to be computed on the basis of the average yearly receipts of the defendant before it made the lease; and that the action was not prematurely begun.</p>

<p>Contract upon a promissory note for fifteen hundred dollars, purporting to be signed by the defendant, made payable to his own order, and indorsed by him to the plaintiff. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Reference under Rule of Court — Award.</p> <p>An action of contract for breach of an agreement in writing was submitted generally by rule of court under the Pub. Sts. c. 188, and the referee made an award absolute in terms, stating, however, somewhat in detail, for the satisfaction of the parties, the evidence and the grounds of his decision. Held, that the award upon the questions submitted was final, and was not subject to revision by the court.</p>

<p>Bank Check — Forgery — Negligence.</p> <p>A forged check, purporting to be drawn upon a bank by a firm which was one of its customers, was made payable to a payee named or bearer. Another bank, of which the firm was not a customer, when the check was presented to it by an unknown person, without attempting to identify him, and upon his indorsing it in the payee’s name, cashed it, and was credited with the amount as money by the drawee. The drawee negligently failed to discover the forgery for a month or two, but then immediately notified the bank cashing the check, which was not prejudiced by the delay. Held, that the bank cashing the check must bear the loss.</p>

<p>Eminent Domain — Constitutional Law — Election between Remedies — Waiver — Equity.</p> <p>If a statute authorizes the taking of land by eminent domain, and provides for an application for a jury to assess the landowners’ damages within a time limited, an owner, by seasonably filing an application, does not waive the right, while it is still pending and before the assessment of damages, to file a bill in equity to test the validity of the taking.</p> <p>A non-resident, who was ignorant of the taking of his land under a special statute until near the end of the year allowed for applying for damages, thereupon, in 1881, filed a petition therefor. Pending negotiations for a. settlement, no answer was filed until 1886, and nothing was done towards a trial until the appointment of an auditor in 1887. The petitioner then informed the respondent that he intended to test the validity of the taking, and the constitutionality of the statute, as well as the auditor’s right to proceed; but for a year did nothing because of the ill health of his counsel. He then retained other counsel, who forthwith brought a bill in equity to test the validity of the taking and of the statute, the auditor having heard only a part of the case. Held, that he had not by any election or waiver deprived himself of the right to maintain the bill.</p> <p>. The St. of 1884, c. 290, authorized the taking by the Commonwealth of certain lands and flats for the improvement of the harbor of Boston, and for furnishing better and more complete accommodations for the railroad and commercial interests of that city, and provided for the compensation of the landowners. Held,, that the taking contemplated was for a public use and that the statute was constitutional, although an incidental and private advantage might result to the Commonwealth by the sale of other lands of its own benefited thereby.</p>

<p>Mortgage — Foreclosure — Notice of Sale.</p> <p>An advertisement of a sale recited that, by virtue of a power contained in a mortgage, “ will be sold at public auction, for breach of the conditions contained in said mortgage deed, on Wednesday, the 30th of June, 1886, at nine o’clock in the forenoon, on the premises, which are described as follows, viz. a certain parcel of land ” described by metes and bounds, and “ comprising all of lot lettered F on a plan of land in L.” Held, that the notice sufficiently described the premises to be sold, and that a sale under it conveyed a good title.</p>

<p>Fraudulent Assignment — Probate Appeal — Decree of Single Justice.</p> <p>On the issue whether an assignment under seal of an interest in an estate to the administrator by the sole heir at law, an elderly woman, was fraudulent and void because of her mental incapacity, there was no evidence of any active fraud on his part; but there was evidence from letters written by her to him, one about two weeks before the assignment and the other about four months later, that she possessed intelligence, and had a full understanding of the arrangement; that her mental condition had not materially changed since that time; and that there was no relationship between them except that the intestate was her grandson and his ward. Held, that the evidence warranted, if it did not require, a finding that she was of sufficient mental capacity to bind herself by the assignment.</p>

Contract on the following memorandum in writing, signed by the defendant: “ I agree to pay $1,000 and interest as stated within on ten days’ notice.” On the back of the paper bearing the above memorandum was the following, signed by the plaintiff: “ Boston, March 12, 1881.

<p>Partnership — Promissory Note.</p> <p>A firm gave a promissory note upon a good consideration to one of its members, and, subsequently becoming insolvent, was dissolved by agreement. The firm creditors were not paid in full, there was no settlement of the partnership concerns, and there was no surplus above debts to be divided among its members. Thereupon the payee indorsed the note to a third person, merely to enable him to sue for the joint benefit of both. Held, that the firm was liable neither to the payee nor to his indorsee.</p>

<p>Replevin of personal property. Trial in the Superior Court, without a jury, before Mason, J., who allowed a bill of exceptions, which, so far as material to the point decided, was as follows.</p> <p>The property in question was mortgaged by the owner by a deed which recited as its date September 3, 1885, but which was recorded in the town clerk’s office in Revere, as appeared by his certificate indorsed thereon, on September 2, 1885. The plaintiff, who claimed title as an assignee of the mortgage, requested the judge to rule, among other things, that the words of the St. of 1883, c. 73, “ shall be recorded within fifteen days from the date written in such mortgage,” must be construed and held to mean that the mortgage shall not be recorded later than fifteen days after the date written in the mortgage ; that where it appears, as it does in this case, on the face of the mortgage, that the record must have been after the mortgage was made, and that the date of the record is not later than “fifteen days from the date written in ” the mortgage, the mortgage was duly recorded, and it is not void by reason of failure seasonably to record it.</p> <p>The judge refused so to rule, and found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Railroad Consolidation — Liability of New Corporation — Demand—Statute.</p> <p>A railroad company under lease issued bonds convertible into shares of its stock at par at any time after the completion of its road, and the lessee guaranteed and paid interest upon them directly to the bondholders. The lessee was then authorized to purchase the bonds and the lessor’s stock, which was still to be convertible for bonds on presentation, and afterwards eaused an exchange of the bonds for new bonds, differing only in being at a lower rate of interest, and mortgaged its own road as additional security for them. Subsequently the road was completed, and the lessor and the lessee, as authorized, united on terms of perfect equality, the new corporation being made subject to all the liabilities and contracts of either corporation. After the consolidation, the new corporation paid interest on the bonds, and a bondholder demanded of it shares of its stock for his bonds. Held, that the new corporation was bound to deliver its own stock for the bonds, or to pay the damages occasioned by such refusal, and that the demand was sufficient.</p>

<p>Replevin— Tille to Personal Property under Assignment of Mortgage.</p> <p>Money was lent, secured by a note and chattel mortgage, both of which ran to an employee of the lender. The note, nnindorsed, was always in the lender’s possession, and the mortgage was always held by him or by the employee. By the lender’s direction, the employee assigned the mortgage to another employee of the lender, the assignee giving to the assignor money supplied by the lender, to whom the assignor returned it. The assignment also was held by the lender, but was missing after the assignee left his employ. Held, that, if the transaction between the lender and his employees was a mere paper one, not under- ■ stood or intended to have any effect as between themselves, the assignee, or one who acquired by assignment only his right to the mortgaged property, could not maintain replevin for the property when in the lender’s possession.</p>

<p>Replevin — General Denial — Conditional Sale — Evidence — Estoppel — Exceptions.</p> <p>In replevin, under a general denial, any evidence is competent which tends to contradict the plaintiff’s averment of title to the property replevied and his right of possession.</p> <p>The buyer of a horse from a dealer, under a conditional agreement in writing, resold it, in violation of its terms, to a third person, against whom the dealer brought replevin; and the answer was a general denial. At the trial, the defendant offered oral evidence to show that, according to a course of dealing between the plaintiff aud such conditional buyer in many similar transactions, the latter was expected thus to resell the horse. Held., that the evidence was competent, and sufficient to warrant a finding that the plaintiff impliedly authorized the sale, or was guilty of fraud or laches, and was estopped to deny the defendant’s title.</p> <p>At the trial, the defendant offered further evidence that the plaintiff, in a conversation which took place about a fortnight after the resale, sent a message to the original purchaser that he had a car-load of horses coming, and wished him to sell as many as he could. Held, that the evidence was admissible in the discretion of the presiding judge.</p> <p>The plaintiff omitted at the trial to allege an exception to a certain portion of the charge of the presiding judge before the jury had left the court-room. Held, that the exception was not properly saved.</p>

<p>Bill in equity, filed in the Superior Court on January 28, 1888, to set aside a settlement between the parties, and a receipt then given by the plaintiff to the defendant, as procured by the latter’s false and fraudulent representations. The case was heard upon the pleadings and evidence, by Dunbar, J., who reported it for the determination of this court, in substance as follows.</p> <p>The bill alleged that the plaintiff and the defendant, and one Arnett, on or about January 1, 1881, entered into an agreement jointly to invent and perfect an improvement in loom temples, and to share equally in the ownership and profits of the invention ; that the defendant should apply for letters patent on the improvement, which were to be issued to him in his own name, and should hold the same when issued in trust for the benefit of the plaintiff, of Arnett, and of himself, and, “ on their demand, should assign to them jointly or separately a one-third interest to each”; that in pursuance of the agreement letters patent were applied for by the defendant, and duly issued in the name of the defendant, but in trust for the joint benefit of the three; that the plaintiff had asked the defendant to assign to him a one-third interest in the letters patent, and the defendant refused to make the assignment; and that the defendant had sold and assigned the letters patent to a third person unknown to the plaintiff, and had refused to disclose such person to the plaintiff, or to render an account to him of the moneys received or profits realized for or on account of such letters patent.</p> <p>The answer alleged that the defendant invented an improvement in loom temples, and agreed that, if the plaintiff and Arnett would assist him in making working models of the same, he would obtain letters patent, and share with them in the proceeds of the same when disposed of; that subsequently the defendant sold the letters patent and an improvement thereon, and all other improvements he might ever make in loom temples,.to the Dutcher Temple Company for the lump sum of $5,800 ; that no sum was fixed on at such sale for the letters patent alone; and that the parties afterwards made a settlement, by which the plaintiff was to receive one sixth of the amount received by the defendant for the patent alone, according to the judgment of the treasurer of that company, or of eight hundred dollars. A replication, filed by the plaintiff, averred that he was induced to enter into such settlement, by which he received $135, by the false and fraudulent representations of the defendant that the latter received .only eight hundred dollars for the patent; that the defendant received five thousand dollars for the same; and that the plaintiff had paid the $135 into court for the use of the defendant.</p> <p>There was evidence that the plaintiff, the defendant, and Arnett, being equally interested in an invention for an improvement in loom temples, entered into the agreement of January 1, 1881; that the patent was issued in October, 1882, to the defendant, and thereafter, on February 27, 1883, the defendant licensed the temple company to use the patent on payment of a royalty to him; that on July 1, 1885, the defendant assigned in writing the patent and an improvement thereon, as well as such other improvements as he might make in the future, to that company for the lump sum of $5,800; that in November, 1885, the plaintiff and Arnett brought a bill in equity identical with the present bill, to which the defendant answered, denying that they had any interest in the invention patented by him or right to share in the profits thereof; that on or about December, 1885, a settlement was had between the parties, in which the plaintiff and Arnett agreed to receive each one sixth of what the defendant received for the patent alone; that at that time the defendant declined to tell the plaintiff what he got for the patent; that subsequently the defendant told the plaintiff that he received only eight hundred dollars for the patent, and showed him the portion of a letter from the treasurer of the temple company, reciting that the writer was of opinion that the patent was worth only that sum, that the plaintiff did not understand that the eight hundred dollars was the part of a larger sum including other things, and nothing of the kind was ever said to him; that the plaintiff thereupon took from the defendant $135 in full settlement, and signed a receipt to that effect; that the plaintiff upon making the settlement intended, if he ever found out that the defendant got more than eight hundred dollars, to bring suit against him again; and that afterwards the defendant settled with Arnett and paid him one thousand dollars. At the hearing on the issue of fraud, the defendant was present and did not testify.</p> <p>The judge found that the allegations of the bill were true; that the settlement and receipt were obtained by the defendant by means of false and fraudulent representations made by him to the plaintiff as to the amount received by him for the letter's patent; and made a decree that the settlement and receipt should be set aside, and deemed to be null and void, “ except in so far as they relate to the fractional share of the profits of said patent which the plaintiff was to receive under the terms of said settlement,” and that the defendant should pay to the plaintiff one sixth of $5,800, or $966.67.</p>

<p>Summary Petition to vacate Judgment — Satisfaction by Payment of Costs — Attorney and Client.</p> <p>The summary petition provided by the Pub. Sts. c. 187, § 17, for setting aside a judgment in any action in which “ the execution lias not been satisfied in whole or in part,” lies where the judgment is for the defendant for costs only, and the plaintiff is the petitioner.</p> <p>Judgment for costs was entered for the defendant in an action, and immediately thereafter, before any execution was issued, his attorney had the costs taxed by the clerk, and exhibited the taxation to the plaintiff’s attorney, who thereupon gave his own check for the amount, and it was paid. The plaintiff, who did not expressly authorize such payment or know of it, afterwards brought a petition on the Pub. Sts. c. 187, § 17, to vacate the judgment. Held, that the payment was a satisfaction of the judgment, and that the petition would not lie.</p>

<p>Devise in Trust — Contingent Remainder — “ Heirs at Law then surviving ” — Release—■Estoppel — Accord and Satisfaction.</p> <p>A testator gave a fund in trust for his wife, directing the trustee to pay over to her what she desired, and, upon her death, to dispose of it according to her will; hut if she made no will, then to pay one half of the fund to his “ heirs at law then surviving, they taking by right of representation,” and the other half to the wife’s heirs, ascertained in the same manner. The wife agreed with his heirs, then consisting of a brother, a sister, and the children of deceased brothers, not to divert the fund from them by will. Subsequently the sister died, leaving a son and a daughter, and the brother then covenanted with the wife to obtain for her from such heirs for a sum of money a release from her agreement. After some of the deceased brothers’ children had given him formal releases, and others had accepted parts of the money, the brother died unmarried, childless, and intestate; and the sister’s daughter, as Lis administratrix, ratified his covenants and releases, and paid other portions of the same money to the rest of the brothers’ children, but did nothing further, except in omitting to tell the wife that she did not intend to give up any personal claim against her. The wife afterwards died, disposing of the entire fund by will away from her husband’s heirs. Held, that the bequest over was to those who were the testator’s heirs at law at his wife’s death, and included his sister’s children. Held, also, that the sister’s children alone were not estopped to enforce the widow’s agreement as to her disposition of the fund by will.</p>

Contract, against tlie executors of the will of Noble Maxwell, to recover $29,000 upon an alleged agreement in writing between the testator and the plaintiff.

<p>Contract on a judgment. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for tbe plaintiff; and tbe first named defendant alleged exceptions, ■which appear in tbe opinion.</p>

Contract for the price of goods sold to F. P. Field and Company, on an alleged guaranty by the defendant. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on agreed facts, in substance as follows. The plaintiff corporation, on November 18, 188T, wrote to the defendant a letter reciting that it had recently “ opened trade with Messrs.

Tort, by the administratrix of the estate of Edward Lewis, for false and fraudulent representations made by the defendant to the intestate.

<p>Promissory Note — Notice by Mail to Indorser's Place of Business.</p> <p>On the issue whether a room to which a notice of non-payment by mail was directed, addressed to the indorser of a promissory note, was his place of business, thus making the notice sufficient within the Pub. Sts. c. 77, § 16, there was evidence that at that time his name was on a glass panel in the door of the room, and on the door post at the street entrance; that an inquiry for him of a person in the room was answered by a statement that he was not in; that he liad been a tenant of the room for a year or two previously; and that lie paid rent and remained and had his goods there, and there received his mail, and was occasionally present, until a later date. Held, that a finding was warranted that the room was the indorser’s place of business when the notice was given.</p>

<p>Divorce— Custody of Child — Modification of Decree.</p> <p>On a petition under the Pub. Sts. e. 146, §§ 29, 32, brought by a husband about two years after a divorce was granted against him for his desertion, for a change in the decree, which gave the wife the custody of their minor daughter, so as to afford him access to the child, there was important evidence from the appearance and manner of the parents in testifying, as well as of the other witnesses, which could not be presented in print; and the single judge hearing the case ordered the decree to be modified so as to give the father an opportunity to see the child from time to time at a convenient place in private. Held, that no exception lay to his refusal to rule, as matter of law, that there was no evidence upon which the original decree could justly be modified.</p>

Tort for personal injuries occasioned to the plaintiff, while in the defendant’s employment, through its negligence or that of its servants and agents. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.

<p>Sale to Spendthrift •—■ Appointment of Guardian — Effect upon Contract.</p> <p>The appointment of a guardian to a spendthrift, under the Pub. Sts. c. 139, §§ 8, 9, after the latter’s purchase of goods, but before their delivery, does not affect his liability for the price.</p>

<p>Intoxicating Liquors — Evidence — Record — Presumption — Exceptions.</p> <p>At the trial, on appeal, of a complaint to a district court for keeping a common nuisance, there was no evidence of the date of the trial in that court except its record, which was not formally put in evidence. The presiding judge told the jury, that this date, if that fact would aid them, was shown in such record. Meld, that the defendant had no ground of exception.</p>

Complaint, dated January 13, 1890, for exposing and keeping for sale intoxicating liquors, with intent unlawfully to sell the same, on January 12, 1890. At the trial in the Superior Court, before Blodgett, J., there was evidence that eight bottles of whiskey and six bottles of lager beer were found on January 12 in a cellar under a tenement occupied by the defendant in a dwelling-house.

<p>Evidence — Hearsay — Declarations — Repetition of Slander.</p> <p>In an action for slander in falsely telling the plaintiff’s workmen that there was arsenic in silk furnished them to work with, whereupon they left his employment, the plaintiff, besides other proof that the defendant spoke to the workmen, offered in evidence their declarations to the plaintiff’s superintendent upon leaving that the defendant told them the story, but they were excluded. Held, that the declarations were improperly excluded.</p> <p>On the issue whether the defendant was responsible for a repetition of the slanderous words, it was held that he was not liable, as it did not appear that the repetition was privileged or authorized.</p>

<p>Petition to the Superior Court, by William Moore against Julia Yalda, for a writ of ne exeat. Mason, J., dismissed the petition; and the petitioner appealed to this court. The facts appear in the opinion.</p>

<p>Public Charity — Cy Pres — Constitutional Law — Impairing Obligation of Contract — Eminent Domain — Talcing of Money.</p> <p>A gift of money was offered to a town, the income to be used in purchasing books for a proposed free public library, upon the conditions that the town should establish the library, and also provide money for purchasing books; that trustees, consisting of the selectmen, school committee, and the settled ministers of the town, should hold and invest the money, and expend the income, and manage the library, subject to the approval of the town; and that, if the library was abandoned or ceased to be kept open for the inhabitants, the gift and any unexpended income should be forfeited to the donor. The offer was accepted by the town, the library was established, and trustees so constituted assumed the management. Two other gifts were made to the library by the same donor, one in l:er lifetime upon terms substantially similar, and the other a bequest without particular designation. Donations to the library were also made by other persons at different times. The St. of 1888, c. 342, was afterwards passed, creating a library corporation, and purporting to authorize it, with the assent of the town, to take the funds, books, and other library property then held by the original trustees, “ to be held and applied by the corporation in the same manner as if held by said trustees.” One donor, the residuary legatee of the original donor, and a majority of the trustees individually, together with the town, assented to the transfer; and the corporation voted the taking, and, upon the failure of the board of trustees to make the transfer, brought a petition for a writ of mandamus to compel such transfer. Held, that the statute was unconstitutional and void, as impairing the obligation of a contract within the meaning of the Federal Constitution, and in authorizing the taking without necessity property already devoted to a public use for another similar use; and that the petition could not be maintained.</p>

<p>Complaint to the Police Court of Brookline, for the unlawful sale of intoxicating liquors. The copy of the record of the judgment of the police court, transmitted to the Superior Court on appeal, was signed, “ Charles F. Perkins, Justice of said Court,” without more, and attested by “ Charles H. Drew, Justice of said Court.” The copy of the complaint accompanying the record of the judgment disclosed that the complaint was subscribed and sworn to before “ Charles F. Perkins, Special Justice,” without more, and was attested by “ Charles H. Drew, Justice of the Police Court of Brookline.” At the trial, the jury returned a verdict of guilty; and the defendant filed a motion in arrest of judgment, on the ground that it did not appear from the record that the complaint was subscribed, sworn to, and tried by such special justice for the reason that the justice of the police court was disabled, or had requested him to act, or that there was a vacancy in the place of justice of that court at the time. The motion was overruled; and the defendant appealed to this court.</p>

<p>Trustee Process. Writ dated July 13, 1888. A special precept of attachment was issued on December 10, 1888, and the answer of the town of Winchester, summoned as trustee of the defendant, who was defaulted, disclosed funds in its hands amounting to one hundred and eighty-one dollars and forty cents. Alexis Cutting appeared as claimant of the funds in the hands of the trustee.</p> <p>The case was submitted to the Superior Court, and, after judgment for the claimant, to this court on appeal, on agreed facts, in substance as follows.</p> <p>The defendant entered into a contract with the town of Winchester to do certain work upon its town hall, and to furnish the materials therefor. On July 19, 1888, upon the completion of the work, he rendered a bill for the same, which was duly approved on that daj? by the building committee, for two hundred and seventeen dollars and trenty-seven cents. On July 12, 1888, he gave the following order to the claimant: “ Winchester, July 12th, ’88. Town of Winchester. Pay to the order of A. Cutting ninety and thirty-two hundredths dollars, value received, and charge the same to account of H. B. Payne.” At about the same time, he gave four other orders to different persons, for sums in all amounting to sixty-five dollars and twenty-seven cents, and varying from the above order to the claimant only in the amounts, and in directing the town to “ charge the same to the account of H. B. Payne.” These orders were left by the claimant and such other persons with the selectmen of the town on July 19, 1888, and were never recorded nor accepted by the town, unless their remaining thenceforth in the hands of the selectmen constituted such an acceptance. The decision as to the claimant’s order was to apply to the four other orders.</p>

<p>Contract upon a promissory note, dated August 22, 1888, and made payable by the defendant, on November 1, 1888, to the order of himself, and indorsed by him in blank. Answer, a general denial. Writ dated April 3, 1889. In the Superior Court, on appeal from the Municipal Court of the city of Boston, the defendant, with the consent of the plaintiffs, filed the following supplemental answer: “ The defendant says, that, since he filed his answer in the above entitled suit, these plaintiffs have recovered judgment against this defendant in an action begun and prosecuted in this court; that said judgment was recovered on the first Monday of July, 1889, and was for the amount of $1,553.01, debt or damages, and $41.30, costs of suit; that in the computation of the amount of said debt or damages, the note sued upon in this action was taken into account, and this defendant’s indebtedness thereon was made a part of the debt or damages awarded by said judgment, as by the papers and record in said suit will appear. Wherefore the defendant says the plaintiffs have no right to further maintain this fiction.”</p> <p>At the trial, without a jury, before Aldrich, J., the following facts in regard to the allegations set up in the supplemental answer were agreed: “ The former action therein referred to was an action between the same parties begun before maturity of the note now in suit; the declaration therein contained three counts, one upon a promissory note, and two upon a special agreement to procure the indorsements of the defendant’s mother upon the last named note and two others, one of which was the note sued on in this case. After judgment had been entered for the plaintiffs in the present suit in the municipal court, and the appeal taken by the defendant had been duly entered in the Superior Court, the plaintiffs recovered judgment in said former suit in the Superior Court by default, and by agreement damages were assessed at the amount due on said three notes, including the one now sued on.” The note in question, and the record of the prior suit between the parties, were put in evidence by the plaintiffs, and no other evidence was offered by either party.</p> <p>The judge refused to enter judgment for the plaintiffs, and found for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Former Judgment — Audita Querela — Res Judicata.</p> <p>In an action to recover for certain labor, the defence was a former judgment upon an audita querela. In the audita querela the plaintiff alleged the doing of work, and the giving of a note to the defendant, to satisfy an excessive execution, and sought to have the judgment upon which it was issued reduced, and the defendant ordered to pay him the balance due; the defendant denied that the work was done in satisfaction of the judgment, alleging that he paid for it otherwise; and the judgment was “ that the plaintiff has no right to maintain" the writ. Held, that the judgment upon the audita querela did not, as matter of law, import that the plaintiff’s labor had been paid for; and that the question was properly submitted to the jury.</p>

<p>Bail — Superior Court — ‘ ‘ Session ’ ’ ■—■ Recognizance — Notice.</p> <p>Section 48 of tlie Pub. Sts. e. 212, providing that, when the Superior Court is “not in session,” bail may be taken in the county of Suffolk by a bail commissioner, means when that court is not in actual session, and a recognizance entered into before a commissioner when that court temporarily stands adjourned to another day is valid.</p> <p>The omission of the bail commissioner to require proof that written notice of the application for bail had been duly served on the district attorney or his assistant, as required by that section, will not render the recognizance invalid, or avail a surety as a defence in an action thereon.</p>

<p>Appeal—Copy of Record — Arrest of Judgment.</p> <p>If the record of proceedings in a district court, on a complaint within its jurisdiction against several defendants, fails to disclose that they severally pleaded or were found severally guilty, the jurisdiction of the Superior Court on appeal is not thereby affected.</p> <p>The failure to transmit to the Superior Court, on an appeal, a copy of a complaint other than that set forth in the copy of the judgment, even if required, does not affect the jurisdiction of that court, and furnishes no ground for an arrest of judgment.</p>

<p>Deed — Watercourse — Rights of Riparian Owners — Non-user — Prescription.</p> <p>The grantee of a mill site and privilege on a stream, whose deed contains no special mention of water rights, acquires a right to the whole natural flow thereof, subject to the rights of the upper riparian owners.</p> <p>Tlie owner of a stream at the outlet of a great pond, while he may dig out the channel, and maintain a reservoir, dam, and gate, and accumulate the water for the benefit of his own mill, and is not obliged to hold back the water or regulate the natural flow of the stream for the benefit of lower riparian owners, cannot unreasonably interfere with the natural flow of the stream, to their injury; and if he conveys a lower privilege, the grantee acquires no right to the use of the reservoir unless stipulated in the deed, though necessary for the beneficial use of the grantee’s mill.</p> <p>The owner of mill sites and privileges upon the outlet of a great pond retained the upper privilege, with a dam, flume, and gate, and in 1825 conveyed a mill site below by a deed reciting that, for the purpose of operating his mill, the grantee might raise the gate “ so as to let as much water run as shall be equivalent to carrying two engines in the grantor’s paper-mill when the grantor does not suffer so much to pass at his paper-mill”; but if the grantor should do so, “the grantees, their heirs and assigns, are not to meddle with said gate, or draw any more water, nor are they' to draw said quantity at any' time except from six of the clock in the forenoon to six in the afternoon of each working day.” In 1828 the grantor conveyed another privilege below by a deed providing that, if the grantor neglected to draw water from the pond “ sufficient to carry two engines as now running in the grantor’s mill from five A. si. to seven o’clock p. m. on each working day,” the grantee might “ draw so much water at any time so neglected by the grantor, and no more.” Both deeds provided that the grantees should bear a just proportion of the expense of maintaining the dam, flume, and gate at the outlet of the pond. In 1829 he conveyed another lower privilege by a deed containing no special mention'd water rights. Held, that the right of the grantees under their deeds was the ordinary right of riparian owners, limited only by the stipulation as to the quantity of water that should be sent down to the- first two grantees ; that the grantor was not required to maintain the dam and gate, or to regulate or hold back the water, for the grantees’ benefit; that his intention in specifying two engines was not to include all the machinery in his mill, as then used by him, as the measure of the grantees’ rights ; and that, under the conveyances, he could not render nugatory the grantees’ right to open the gate and obtain water for their mills by unreasonably letting down the water for his own convenience.</p> <p>The recitals of an ancient deed are inadmissible in evidence to enlarge the estate granted in a prior deed of the same grantor, to the impairment of an intervening title.</p> <p>Riparian rights are not lost by non-user and abandonment.</p> <p>A right by adverse user and prescription to interfere with the natural flow of a stream, beyond the right incident to riparian ownership generally, can be established only upon clear evidence.</p>

<p>Lease — Authority of Agent—Implied Covenant for Quiet Enjoyment — Special Damage.</p> <p>In an action for breach of an implied covenant for quiet enjoyment in an alleged lease in writing, there was evidence that a real estate agent, being told by the defendant who owned an estate to let it for three years at a certain rent, exchanged a paper reciting that he had “leased” the estate to the plaintiff, and describing it, the term, and the rent and the times of payment, signed by him as “agent for” the defendant, for a like paper signed by the plaintiff. The latter immediately entered into possession and paid a month’s rent to the agent, who during the next month told the defendant what he had done, and was paid by him his commission on the stipulated rent for the entire term. Within the term the estate was sold under a prior mortgage, and the plaintiff, upon recfeiving from the purchaser a notice to quit, accompanied by a threat of ejectment by legal process, moved away, the fair rental value of the estate at the time of his removal being more than he was paying. Held, that there was sufficient evidence to warrant a verdict for thé plaintiff; and that a verdict for the defendant was improperly ordered.</p>

Contract against the defendant, as acceptor of the following order for the payment of money: “ Brighton, July 12, 1887. S. J. Wilde, — Please pay G. Fuller & Son one thousand dollars, being amount of second payment due on contract for building house on Foster Street, said payment being due when house is plastered. C. A. Prouty.— July 12, accepted. Samuel J. Wilde.” Writ dated October 6, 1887.

Contract, upon two drafts, for $20,000 and $9,900 respectively, and for $7,000 with interest, as money paid to the defendant’s use. The first draft, which differed from the second only in amount, was as follows : “20,000. McKeesport, Pa., May 17, 1884. “ At sight, for value received, pay to the order of A. Chaudon twenty thousand dollars, and charge this office as per margin. “National Tube Works Co., by E. C. Converse, Asst. Mgr., for President. “To Wm.

<p>Charges of fraud, filed by a judgment creditor resident in New York, under the Pub. Sts. c. 162, § 49, against his debtor, a resident of Vermont, upon the application by the latter to take the oath for the relief of poor debtors. The magistrate found the debtor not guilty of the charges, four of which were charges of gaming with cards in New York and Vermont since the debt was contracted or the cause of action accrued, and discharged him; and the creditor appealed to the Superior Court. At the trial in that court, before Bishop, J., the debtor moved to dismiss these four charges, on the ground “ that the gaming therein set forth occurred outside this Commonwealth, and such gaming is not prohibited by its laws.” The judge overruled the motion, and refused to rule that such charges could not be sustained.</p> <p>The jury returned a verdict of guilty; and the debtor alleged exceptions.</p>

<p>Personal Injuries — Defective Shade Tree in Way — Duty of Highway Surveyor— Evidence of Notice — Res Gestee.</p> <p>If the superintendent of streets of a city, upon being notified that a shade tree standing in the highway is unsound and dangerous, does not proceed to obtain authority to cut down and remove it, as provided in the Pub. Sts. c. 52, § 10, as amended by the St. of 1885, c. 123, § 2, nor take due precaution against the danger, the city will be liable to a traveller thereon who, while in the exercise of due care, is injured by its fall.</p> <p>On the issue of notice to a city of the defective condition of a shade tree in the highway, the declarations of persons as to its dangerous character, while looking at its decayed roots at a time when they were exposed, are competent as part of the res gestee.</p>

<p>Bill in equity, filed March 7, 1889, by Pauline T. Gale and Sarah T. Crowell, against the trustees under the will of John Nickerson, and against Miranda J. Nickerson, to recover certain .legacies given by the will, and distributive shares in his estate.</p> <p>The bill alleged that the will of John Nickerson, who died on May 3, 1869, was duly admitted to probate on November 13, 1869, and, after gifts of money to various relatives, including five hundred dollars to the testator’s sister, Thankful N. Thomas, and twenty dollars each to her daughters, Pauline T. Gale and Abby B. Wait, nieces of the testator, contained the following clauses:</p> <p>“Eighthly, I give and bequeath unto my nephew, Seth Nickerson, the son of my brother Seth, and the children of my brother Eldridge, Eunice S. Nickerson and Miranda J. Nickerson, the residue of my property in equal shares, whether real, personal, or mixed property, to be held in trust by my executors hereafter named, or trustees. In case that my niece Miranda J. Nickerson should marry, then my said property to be held and owned by my said trustees.</p> <p>“Ninthly, I order and ordain my railroad stocks and my bank stocks to remain as they now are, and the dividends to be added to the capital stock as they may arise or accrue. The safe now in my brother’s house I give and bequeath unto my nieces Eunice and Miranda, I order my trustees to put tombstones at my grave, and to pay all my funeral and other expenses, and to pay unto the children of John E. Thomas the sum of twenty dollars each, and I hereby reserve to be kept as a fund the sum of five hundred dollars for the only purpose of keeping my grave and yard in repair by my said trustees.</p> <p>“ Tenthly, I ordain and appoint the said Seth Nickerson, my nephew, and Eunice S. Nickerson, my niece, to be my executors and trustees, without bonds.”</p> <p>The bill also alleged further, that Thankful N. Thomas died on May 18, 1873, and that Abby B. Wait died on September 24, 1879 ; that the plaintiff Sarah T. Crowell was the only daughter and the only surviving child of Abby B. Wrait; that neither the said Thankful N. Thomas nor the said Abby B. Wait received their specific legacies named in the will of the testator, or any part of his estate, and that these legacies have never been paid; that the specific legacy bequeathed to Pauline T. Gale has never been paid; that by the ninth clause of the will a large part of the estate, consisting of railroad stock and bank stock, was conveyed to the said Seth Nickerson, Jr., and the said Eunice S. Nickerson, to be held by them in trust; that the will failed to name the purpose for which the trust was created, and no beneficiaries were named to receive under the trust; that the plaintiffs are informed and believe that said trust property should now be distributed among the heirs at law of the testator, in accordance with the rules of law governing the distribution of estates where no other disposition of the property has been made by the testator, and the purpose for which money and estate held in trust shall be applied has not been declared; that after the death of the said Thankful N. Thomas, her heirs sought to recover the legacy of five hundred dollars named in the will, as said legacy had not been paid to her during her lifetime, and that an administrator was duly appointed and suit instituted for that purpose; that after suit had been commenced, the defendants (who were the nephew and nieces named in the eighth clause of the will) produced a paper which purported to be a release signed by the said Thankful N. Thomas, Abby B. Wait, the plaintiffs, and others, in which the said Thankful N. Thomas, the said Abby B. Wait, and the plaintiffs appeared to have released and assigned to the defendants all of their interest in said estate; that said release purported to have been signed by the said Thankful N. Thomas, and by the said Abby B. Wait, and by the plaintiffs, and that the defendants placed a copy of said release on file, retaining what purported to be the original; that neither of the plaintiffs ever signed or executed such an instrument as said release purported to be, nor ever knew of such an instrument; that the signatures thereto which purported to be their signatures were forgeries, and that this instrument as to them was a false, fraudulent, and forged instrument; that the signatures to this instrument which purported to be the signatures of Thankful N. Thomas and Abby B. Wait were not their signatures; that they never signed the instrument, nor authorized any person to sign it for them, during their lifetime; that they never saw it nor knew of its existence, and their signatures thereto were false, fraudulent, and forged signatures; and that the defendants held this release against the plaintiffs as a valid release, and as a defence to their claim against the estate of the testator.</p> <p>The prayer of the bill was: (1) that the release might be produced in court and cancelled as to the signatures and execution of Thankful N. Thomas, Abby B. Wait, and the plaintiffs; (2) that the trustees be decreed to hold the estate described in the will as railroad stock and bank stock in trust for the heirs at law of the testator; (3) that the trustees might be ordered to pay out of the trust estate to, the plaintiffs such sum as might be found due to them as heirs at law of the testatpr, claiming through Thankful N. Thomas; (4) and for further relief.</p> <p>The defendants demurred to the bill, on the grounds of laches, multifariousness, and for want of equity, of proper parties, and of title in the plaintiffs. The demurrer was sustained; and the plaintiffs appealed to this court.</p>

<p>Corporation — Implied Contract to pay President for Personal Services — Vote — Statute of Frauds.</p> <p>A contract may be implied on the part of a corporation to pay its president for special services, none of which devolved on him as a part of his official duty, rendered to the corporation with the knowledge and approbation of the directors, who had every reason to think that he would claim compensation therefor, although the directors had previously voted that “ no member of the corporation should thereafter receive any compensation for services rendered, unless first authorized by the board, and his compensation fixed,” if the president was not a member of the board at the time the vote was passed, and had no knowledge of the vote; and a previous settlement made with him by the corporation for similar services is not conclusive as to the rate to be allowed him for his later services.</p> <p>An agreement to pay for personal services in selling land, payment for which is to be made when the property is sold and paid for, may be performed within a year, and is not within the statute of frauds.</p>

<p>1'own Division — Employment of Counsel before Legislature— “Interested.”</p> <p>Under the St. of 1889, e. 380, authorizing the employment of counsel by “ any town interested in a petition to the Legislature” to represent it at hearings thereon, a town may employ and pay counsel to oppose its division before a committee of the Legislature.</p>

<p>Tort for taking down the plaintiff’s fence and driving over his land. At the trial in the Superior Court, before Hammond, J., there was evidence that in 1848 Sumner Benson, who then owned two adjoining lots of land, numbered 27 and 67 respectively, conveyed lot 27 to Stillman Benson; that a highway then crossed lot 67, but no public or private way led to lot 27; that subsequently Sumner Benson conveyed lot 57 to the plaintiff, and Stillman Benson devised lot 27 to Maria Clark; that a portion of the highway was duly discontinued and a new highway laid out over lot 57, leaving a short piece of the discontinued highway lying between the new highway and a point where an alleged way by necessity to lot 27 intersected the old highway; that the plaintiff erected a fence across the end of the discontinued portion, and along the line of the new highway; and that the defendants, one of whom was the husband of Maria Clark and all of whom acted as her agents, took down the fence, against the plaintiff’s orders, and drove over such discontinued portion and the alleged right of way by necessity to lot 27.</p> <p>The judge refused to instruct the jury, as requested by the plaintiff, in substance, that Maria Clark had no right of way by necessity over the discontinued portion of the old highway; but instructed them that, if she had a right of way by necessity over the plaintiff’s land from her lot to the highway as located at the time of the grant to Stillman Benson creating such right of way, and the location of the highway was changed to another part of the plaintiff’s lot, she would still have a right of way by necessity over the discontinued portion of the old highway to such newly located highway.</p> <p>The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Contract against Edgar W. Rice, Henry M. Rice, Rebecca S. Rice, Ellen T. Rice, and Edna C. Rice, on an account annexed, with a count in tort for fraudulent conspiracy to prevent the plaintiff from enforcing a mechanic’s lien on real estate. Trial in the Superior Court, before Mason, J., who ruled that there was no evidence to go to the jury on the count in tort, and ordered a verdict for the defendants thereon; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Contract to recover unpaid dividends upon forty shares of stock in the defendant bank. Daniel J. Sawyer, executor of the will of Charles F. Barker, was the claimant of such dividends, and was cited in by the defendant under the St. of 1886, c. 281. At the trial in the Superior Court, without a jury, before Bishop, J., the following facts appeared in evidence.

CONTRACT to recover, in the first count, an unpaid balance upon a sub-contract between tbe plaintiff and the defendant, a contractor with the city of Boston to build a sewer; and in tbe eighth count, to recover, under an alleged agreement between them, a proportionate part of tbe verdict for the defendant in an action brought by him against the city for an amount due upon bis contract, and for damages caused by tbe city’s failure to build a sea-wall to protect the sewer.

<p>Amendment of Writ and Declaration — New Cause of Action — Notice — Increase of ad Damnum, — Discharge of Surety.</p> <p>A declaration recited in a single count the liability of the defendant as indorser of “ a draft, a copy of which, with the indorsements thereon, is hereto annexed,” arising upon the refusal of two firms, “ the drawees therein named,” to pay it. Annexed to the declaration were four drafts indorsed by the defendant, three drawn upon one of the firms, and the fourth upon the other. Subsequently the declaration, without notice to a surety on a bond to dissolve an attachment in the action, was amended so as to set forth accurately in four counts the defendant’s liability as indorser of the same four drafts, each being fully described in a separate and distinct count. The writ was also amended by increasing the ad damnum. Held, that the surety was not discharged by the amendments.</p>

<p>Contract against the defendant, as surety on a written instrument alleged to be a bond. After the former decision, reported 148 Mass. 542, the case was tried in the Superior Court, without a jury, before Barker, J., who found for the defendant, and allowed exceptions, which appear in the opinion.</p>

<p>Personal Injuries — Railroad—Contributory Negligence — Rights of Passenger in Baggage Car.</p> <p>A passenger entered at a station the smoking car of a train on a single track railroad and began to read and smoke. The train started before the arrival of a train due to pass it at that station, and he, noticing that fact after his train was fairly under way, and being apprehensive, from his knowledge of the running of the trains, that a collision might take place at any moment, went into a baggage compartment at the forward end of the car, and there stood with his hand upon the knob of the door prepared to jump, and did jump just before the trains collided, and was injured. Held, in an action against the railroad company, that the question whether he was in the exercise of due care or guilty of contributory negligence was properly submitted to the jury.</p>

Bill in equity filed April 28, 1885, by the members of the firm of Farnum, Reardon, and Company, doing business in Boston as commission merchants, against Frank C. Pitcher and Milford N. Cottle, copartners doing business there under the style of Cottle, Pitcher, and Company, to recover for losses by the plaintiffs in the purchase and sale of corn on the Chicago Board of Trade for the defendants upon orders of the defendant Pitcher, and for storage, insurance, and their…

<p>Bill in equity, filed December 20, 1889, .for specific performance by the defendant of her agreement to purchase land. Hearing before Holmes, J., who reserved the case for the consideration of the full court, in substance as follows.</p> <p>The agreement in question provided that the land should be conveyed by the plaintiff to the defendant “ by a good and sufficient deed, conveying a good title, or no sale.” The title of the plaintiff was derived as follows. On November 21,1860, Charles F. Bray, trustee under the will of James A. Dixon, conveyed the land in question by a deed duly recorded to William H. Vincent, “ trustee for Mrs. Sarah Ellen Dexter,” and to “ his successors and assigns,” habendum “ to the said W. H. Vincent, trustee, his successors and assigns, to their own use forever.” Vincent died in 1876 without having conveyed the land, and'devised all his property, save certain specific legacies of personal property, to his wife for her life, and at her death “ the same is to be conveyed to my sister Sarah Ellen Dexter for the benefit of herself and children.” Mrs. Dexter survived Mrs. Vincent, and died on March 2, 1889, having devised all her estate to her two daughters, who were her only heirs, and who in turn conveyed the land to the plaintiff. The trustees who succeeded Bray under the will of James A. Dixon, and Cordelia Tremlett, the sole heir and cestui que trust under such will, gave quitclaim deeds to the plaintiff in confirmation of' the conveyance of Bray.</p> <p>The defendant refused to accept a deed tendered by the plaintiff in pursuance of his agreement, on the ground that the title was defective “ on account of the danger of a trust turning up, of which we have notice by Bray’s deed to Vincent, trustee, and of the terms of which we are ignorant.” Diligent search and inquiry in the registry of deeds and registry of probate, and among all who might know anything about the matter, failed to bring to light any other declaration of trust, or evidence or intimation thereof. After the bill was filed, the Probate Court of the county of Suffolk, a general citation having been issued by publication to all parties interested, duly appointed a trustee in the place of Vincent under the deed from Bray, as well as a guardian ad litem, of all persons unborn or unascertained, who might be or might become interested under the trust set forth in that deed, and ordered the trust to be terminated, and, with the consent of the guardian ad litem, a release of the land to be given to the plaintiff, which was thereupon done. It was agreed that the probate proceedings should have the same effect as if had and completed before the tender of the deed by the plaintiff to the defendant, and before the bill was filed.</p> <p>If the above facts did not constitute a material defect in the title, a decree was to be entered for the plaintiff; otherwise, for the defendant.</p>

<p>Trust — Partnership — Equitable Attachment.</p> <p>An inventor assigned to a trustee his invention and his application for letters patent therefor, to manage and dispose of the same in his discretion, and to divide the net avails between the inventor and the holders of scrip to be issued. The trustee accepted the trust, and issued the scrip to himself and to others, and contracted a debt for the purposes of the trust. Held, that the scrip-holders were not partners, but were cestuis que trust, entitled to share in the avails of the property when sold; and that the creditor could not maintain a bill in equity under the Pub. Sts. c. 151, § 2, cl. 11, and the St. of 1884, c. 285, to have the trust property sold, and the proceeds applied to the payment of his single debt.</p>

<p>Trust— Capital and Income — Net Income.</p> <p>Where the trustee of an estate held in trust has been obliged to pay taxes upon an unproductive investment received by him from his predecessor, this expense is not to be deducted from the income of other and productive investments, but is to be regarded as a charge upon the principal of the unproductive investment.</p> <p>A testator by his will gave to his wife “the use and income” of all the residue of his estate “during her natural life,” at her death “all my said estate then remaining to be divided equally between my two sisters,” and appointed a trustee to hold and manage the estate during the life of the wife, “ collecting the income for her so far as may be necessary to secure the same to her sole and separate use, and paying the same to her upon her sole receipt.” Held, that the wife was entitled to the net income only of the estate.</p>

<p>Complaint — Appeal — Nolle Prosequi.</p> <p>If a defendant who has been convicted upon a criminal charge in a district court takes an appeal to the Superior Court, the district attorney before the jury are impanelled may enter a nolle prosequi in the Superior Court, without the defendant’s consent, as in other cases.</p> <p>After the entry of a nolle prosequi, if no step has been taken to reeall it or to revive tiie complaint, the defendant is entitled to a formal order discharging him from the complaint.</p>

<p>Indictment, in five counts, against George T. Smith, Samuel P. Smith, and Arthur B. Kendall. The first count alleged that the defendants, on November 9, 1888, at Woburn, with force and arms, “ a certain building, to wit, a house of one John R. Carter, there situate, feloniously, wilfully, and maliciously did set fire to and burn, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.” The fourth count charged Kendall as principal with setting fire to the same house on the same day, and the Smiths with being accessories to the burning. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant Kendall was a fugitive from justice, and the defendants Smith severally pleaded not guilty, and were tried together. The defendants asked the judge to rule that the averments of the first count constituted, under the Pub. Sts. c. 203, § 1, the crime of arson; but the judge refused so to rule, and ruled that such averments set out the offence of burning a building under § 4 of that chapter ; and the defendants excepted.</p> <p>The government was permitted to offer in evidence, against the defendants’ objection, the testimony of John It. Cartel’, the owner of the house set forth in the indictment as burned, that it had formerly been occupied by him as a dwelling-house; that he had rented it to George T. Smith, and that the defendants had moved their household goods into the house, which was not otherwise occupied. Carter described the house as a two-story frame house, situated in Woburn, on the westerly side of Main Street, with a story and a half L, containing a dining-room in the main part of the house, a parlor, a sitting-room, a pantry, and three chambers.</p> <p>Evidence was admitted that George T. Smith procured a policy of insurance from an insurance company, known as the State of Pennsylvania Insurance Company, for Arthur B. Kendall, on certain property claimed by him to have been located in the building alleged to have been burned; that the policy was delivered to George T. Smith; that the insurance company possessed an office copy of this policy at the home office in Philadelphia; that the policy was not produced at the trial, but a demand was made at the trial upon George T. Smith for the original, and Smith failed to produce the same, and the policy was not found among the effects of Kendall. The government was allowed to put in evidence a book, alleged to contain the written portion of the policy, with the testimony of the agent of the company; that, with the printed part known as the standard policy of this Commonwealth, excepting certain signatures and a rider which he described as the lightning clause, the same constituted a true copy of the policy. The judge admitted the evidence, and the defendants excepted.</p> <p>There was evidence tending to show a conspiracy between the Smiths and Arthur B. Kendall and his brother Charles R. Kendall to burn the building for the purpose of obtaining the insurance upon the goods therein, and the acts and declarations of Arthur B. Kendall before the fire, and in furtherance of the conspiracy, were admitted in evidence. There was also evidence that the Kendalls and George T. Smith before the fire had stored two trunks and a case in the house of one Griffin. The government was permitted to introduce in evidence conversations between the Kendalls, which took place in the absence of the other defendants, respecting the course Arthur B. Kendall should take in regard to certain evidence developed at the fire inquest at Woburn, in the course of which Arthur B. Kendall said he wished to remove the trunks and ease from Griffin’s house to some other place, and Charles R. Kendall then informed him that they could be taken to the house of a Mrs. Morrill in West Newton. Evidence was then offered on' behalf of the government, that George T. Smith and Arthur B. Kendall removed the trunks and the case from Griffin’s house, on January 17, 1889, to that of Mrs. Morrill; that, on January 25 following, George T. Smith went to the house of Mrs. Morrill and examined the trunks; and that she afterwards found in the stove situated in the room where the examination was made what looked like the ashes of burned paper. To the admission of the above conversations in evidence, the defendants excepted.</p> <p>The jury were instructed, that Arthur B. Kendall was not on trial, and that evidence of his acts and declarations after the fire could be considered only for the purpose of determining whether or not he was the principal named in the fourth count of the indictment; if that finding was in the affirmative, they must then determine from the other evidence in the case whether one or both of the defendants then being tried were accessories to the act alleged to have been committed by Kendall in the fourth count.</p> <p>The jury returned a verdict of guilty against George T. Smith upon the first count, and of not guilty upon the fourth count of the indictment, and acquitted Samuel P. Smith; and the defendant George T. Smith alleged exceptions.</p>

<p>Chattel Mortgage — Attachment of Goods—Demand of Payment upon Officer.</p> <p>A written demand by a mortgagee of personal property upon an attaching officer, under the Pub. Sts. c. 161, § 75, for payment of the mortgage, is not invalidated by the omission, without fraud, of a small amount of interest from the account.</p> <p>A mortgage of personal property was given, in consideration of cash and five time notes signed by the mortgagee, three of which were sold by the mortgagor, to secure the mortgage note and the performance of the mortgagor’s agreement to admit the mortgagee, at his election, to an equal interest in a partnership. The mortgagee, if he became a partner, was to convey to the partnership all his interest under the mortgage, and receive payment of his notes, when due, from the partnership profits, if any. Held, that a written demand by the mortgagee, under the Pub. Sts. c. 161, § 75, before his notes were due, for payment of the amount named in the mortgage, upon an attaching officer, was an election to have the mortgage paid out of the mortgaged property, and not to enter into the partnership, and that it was unnecessary to refer in the demand to the agreement or to the mortgagee’s notes as forming a part of the consideration.</p>

<p>SoiRE JFACIAS against the defendant, as trustee in a trustee process brought by the plaintiff against William H. Swift, administrator of the estate of Ann McLean, deceased. 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>In the summer of 1886, Ann McLean, who had lived as a servant in the defendant’s family for several years, having become ill, handed to the defendant six hundred and sixty dollars, saying : “ You take this money. When I die, bury me, and keep the rest, because you are the only woman who has ever been kind to me.” The defendant received the money, and, at various times before and after the intestate’s death, paid out of the fund various sums for the expenses of the intestate’s illness and burial, amounting in all to two hundred and sixty-five dollars, leaving a balance of three hundred and eighty-five dollars in her hands, which she claimed as a gift from Ann McLean, and as a payment for her services in attending to her burial and illness. William H. Swift was appointed administrator of the estate of Ann McLean, but no funds belonging to her came into his hands, although he had made diligent search for the same, and none to his knowledge existed except the balance of the fund remaining in the hands of the defendant. The intestate was indebted to the plaintiff for professional services, and he commenced a trustee process against the administrator to recover for the same, and summoned the defendant as trustee, and judgment was rendered, with the administrator’s consent, in his favor in that action, whereupon he brought this scire facias.</p>

<p>Tort for personal injuries occasioned to the plaintiff through the alleged negligence of the defendant city, its officers or agents.</p> <p>At the trial in the Superior Court, before Barker, J., the plaintiff offered to prove, that, in September, 1888, he was convicted of the offence of refusing to support his family, and was sentenced to imprisonment in the workhouse or house of industry established b.y the defendant^ city on Deer Island in Boston Harbor; that the city maintained gas works upon the island for the manufacture of gas for use in and about its various buildings there, as well as a wharf where the coal used upon the island was stored, and from which it was carted among other places to the gas works; that at the time of the accident and during his term of imprisonment the plaintiff was at work, as he had been directed, under the supervision of an officer of the defendant city, in carting coal from the wharf to the works; that in loading or unloading the coal upon or from the cart, by reason of a defect in its construction or in the method of loading it, in either case through the negligence of the defendant’s officers or agents, the load of coal fell upon the plaintiff, who was at the time in the exercise of due care, and injured him; that the defendant had contracted with various persons for the labor of the prisoners in the manufacture of clothing and other articles, from which contracts then subsisting it derived large profits; and that the gas made at the works, and to be made from the coal which the plaintiff was engaged in carting, was used in lighting the rooms where the prisoners were engaged in carrying out these contracts of the defendant city.</p> <p>The judge ruled that the plaintiff could not maintain his action against the defendant, and that his remedy, if any, was against the officers and servants who, the plaintiff contended, were guilty of the alleged negligence, and directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tenants in Common — Partition.</p> <p>A conveyance by one tenant in common of his interest in part only of the common estate will not authorize a cotenant to enforce partition of such part against the grantee, leaving the residue unpartitioned.</p> <p>A tenant in common of four distinct parcels of land conveyed, under an erroneous claim of title in severalty, three parcels to different persons. A cotenant subsequently brought a petition for partition of one of the parcels, against the grantee thereof and his cotenants other than the grantor. Held, that the petition could not be maintained.</p>

<p>Equitable Attachment — Letters Patent—Foreign Corporation — Sale by Master — Assignment in Writing.</p> <p>Under the St. of 1884, e. 285, § 1, a court of equity may order a conveyance of a debtor’s property, upon his refusal to convey it, by a master or other person appointed for that purpose, whenever it is deemed necessary or proper in order to apply it to the payment of a debt conformably to the statute. Field & W. Allen, JJ., dissenting.</p> <p>Letters patent of the United States owned by a Maine corporation doing business in this Commonwealth, whose president, treasurer, and directors resided or had places of business here, were sought to be reached and applied in payment of a debt of the corporation, by a bill in equity under the Pub. Sts. c. 151, § 2, cl. 11, and the St. of 1884, c. 285, service of which was duly had upon the corporation. Pending the bill these officers resigned, and residents of Maine were elected to fill the vacancies, and the corporation withdrew from business in this Commonwealth. Held, that a sale and conveyance of the letters patent by a master might be ordered under the St. of 1884, c. 285, § 1, to satisfy the debt; and that an assignment in writing of the patent by the master to the purchaser, upon the refusal of the corporation to assign it, would be effective to convey the title, and sufficient in form to satisfy the U. S. Rev. Sts. § 4898. Field & W. Allen, JJ., dissenting.'</p>

<p>Complaint under the bastardy act, Pub. Sts. c. 85, alleging tbat the complainant was delivered, on March 9, 1889, of a bastard child, begotten by the respondent on or about May 24, 1888. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The complainant, after evidence that she was delivered of a bastard child, as alleged, testified that the respondent called upon her at the house of Joseph Amber, in Provincetown, in June, 1888; that he was then in a room with her alone, and then had sexual intercourse with her, at which time the child was begotten ; and that the respondent was the only person who ever had connection with her. The complainant further testified that she could not definitely fix the date of such intercourse, but “ knew it was the day after Mr. Amber painted his carpet.” The complainant’s counsel was then allowed to ask her, against the objection of the respondent, these questions : “ Did you meet respondent at Mr. Smith’s in Provincetown two years ago ? ” and, “ What, if anything, has respondent said to you about marriage, — about June last ? ” The bill of exceptions recited that the respondent excepted to the asking of these questions, but did not disclose what the replies of the complainant were, or that she answered them at all. Amber, called as a witness by the complainant, after testifying that the respondent and the complainant were alone together at his house early in June, 1888, was permitted to testify, against the respondent’s objection, that, a day or two before that occurrence, he purchased paint of Thomas W. Dyer, and painted a carpet with it. Dyer, also called as a witness by the complainant, testified, refreshing his memory from an entry in his books, that Amber purchased paint from him on June 4 and 6, 1888. On cross-examination, Amber denied that he admitted to one Vasconcellos that he himself was the father of the child. Vasconcellos was called as a witness by the respondent, and was permitted to testify that Amber had admitted the facts denied by him. The bill of exceptions recited, that, after the respondent’s evidence was in, the complainant recalled Amber, and was allowed to ask him if h„e had heard the testimony of Vasconcellos, and if it was true; but his reply was not disclosed.</p> <p>The judge instructed the jury, among other things, as follows:</p> <p>“Mr. Amber testifies that he painted his carpet the day after he purchased paint of Mr. Dyer, and Mr. Dyer has been called, allowed to refresh his memory from charges in his book, and to testify to the date when he sold paint to Mr. Amber, J une 4th and 6th. This evidence is competent upon the question of the date. The complainant must allege the time when the child was begotten, and she must prove that the defendant was the father of her child, but she need not prove it to be on the exact date alleged in the complaint. . . . That they must first decide whether or not the witness Amber made use of the language testified to by Vasconcellos. If they found that he made use of. declarations, the declarations were to be considered only for the purpose of showing interest or bias on the part of Amber, and for the purpose of affecting his evidence, and for no other purpose. The evidence, if believed, may be used to the extent of entirely destroying Amber’s evidence, but no further, and for no other purpose; and as the evidence has been admitted for that purpose, and that only, it is the duty of the jury to see to it that it is used in no other way, and considered for no other purpose.”</p> <p>The jury returned a verdict of guilty; and the respondent alleged exceptions.</p>

Complaint on the Pub. Sts. c. 100, § 17, for unlawfully bringing into the city of Cambridge for illegal sale there certain intoxicating liquors.

<p>Grand Jury — Evidence — Exceptions.</p> <p>Evidence is not objectionable as disclosing what took place before the grand jury, if the time when secrecy is important has passed.</p> <p>If an objection to testimony was merely general, an exception to its admission will not be sustained upon a technical ground not specified at the trial, which apparently was not in the mind of the presiding judge or of the adverse counsel, and which might have been removed if attention had been called to it.</p>

<p>Tort for a nuisance, namely, the noise of operating and running a paper-mill in Needham day and night during the six months before November 17, 1887, the date of the writ, and within five hundred feet of the plaintiff’s dwelling-house. At the trial in the Superior Court, before Barker, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions to the admission of certain evidence, the nature- of which appears in the opinion.</p>

Action on tlie Pub. Sts. c. 175, against John Linnehan and Bessie' Linnehan, his wife, brought in the Police Court of Chelsea to recover possession of a parcel of land in that city.

<p>Corporation — False Representations — Invalid Certificates of Stock—Non-assessable — Declaration — Demurrer.</p> <p>A declaration disclosing as a whole that it was intended to present a certain case will not be pronounced bad, upon demurrer, for want of technical accuracy of allegation, unless the specific defect is clearly pointed out.</p> <p>A declaration alleged that the defendants knowingly and fraudulently signed, as president and treasurer, and issued, an invalid certificate of stock reciting that the corporation was “ Incorporated under the laws of the State of New Hampshire,” and “ Non-assessable,” and delivered the certificate to enable the raising of money upon it; that the plaintiff in good faith, “relying on the validity of said stock as security,” by placing it as collateral, procured and furnished the money, and, upon a failure to repay him, redeemed the pledge and became the owner of the stock. A demurrer set up that it did not appear that any false representations were made, or, if made, that the plaintiff was deceived by them. Held, that the allegations of the declaration imported material misrepresentations of fact, the plaintiff’s belief in them, and damage to him, and might be construed, in the absence of more specific statement of grounds of demurrer, to mean that his belief was caused by the misrepresentation.</p>

<p>Building Contract—Specifications — Express Warranty — Damages.</p> <p>A writing, signed by a firm of builders and a landowner’s agent, contained only a promise by them “ to furnish all stock and materials of every name and nature mentioned in the specifications, or necessary for the proper performance of the© work so shown or described, and under the superintendence of G. R. C., architect, and identified by the signatures hereto.” Reference was also had to “ the apartment building to be erected” on the land, to the beginning and pushing of the “ work ” to completion, and to payments estimated upon “ the value of work and material” to be made by the agent to the builders, upon the architect’s certificate that “ the terms of this contract are complied with.” The specifications, which were not signed, but were otherwise identified, contained, after a general description of the building, the words, “ The work to be left clean and whole, and warranted tight, including roof, for two years,” and also, after a particular description of the materials and construction of the gutters, conductors, and roof, this clause: “ All to be guaranteed for one year from completion of the building.” Held, that the writing formed a building contract for a completed building; that the contract did not import an express warranty of a tight roof, but at most a stipulation as to its soundness, and that the specifications were referred to merely to show what stock and materials were called for; and that the owner, if the roof was unsound, might recoup from the contract price, as damages, the difference between the value of the roof as completed and as con-traded for, or, if paid for before the discovery of a defect, might recover that difference, including a loss of the use of the premises if naturally involved.</p>

<p>Beneficiary Association — Corporate Name — Approval of Insurance Commissioner — Equity — Trade Name.</p> <p>The approval by the insurance commissioner, under the St., of 1888, c. 429, § 7, of the name adopted by a fraternal beneficiary association, is conclusive, in a private suit, of the right of the association to such corporate name.</p> <p>The American Order of Scottish Clans, a beneficiary association formed under the St. of 1888, c. 429, brought a bill in equity to enjoin certain persons from organizing another association under that act by the name of the “ Order of Scottish Clans,” as well as to restrain the insurance commissioner and Secretary of the Commonwealth from issuing to them the requisite certificate. After service was liad, the organization was completed, and a certificate duly issued to the new association. The plaintiff then filed an amendment to its bill in the nature of a supplemental bill, alleging these facts, and at the hearing the single judge found that the name of the new corporation was so similar to the plaintiff’s name as to be liable to be mistaken therefor. Held, that the plaintiff could not maintain Us bill, either under the statute, or on the ground that it was entitled to have its name protected as a trade name.</p>

Bill in equity to prevent the defendants, as occupants of certain premises upon a public street' in the town of Quincy, from using the premises for the carrying on and exercise of the trade or employment of keeping swine without a permit.

Contract. The amended declaration alleged that the plaintiff sold and delivered all his right, title, and interest in and to fifty shares of the American Conduit and Construction Company, the stock of the company being then held under a pooling agreement by the directors, to the defendant, who agreed to pay him five dollars a share for the stock, but neglected and refused to pay the same.

<p>Tort for slander, by a physician against a Roman Oatbolie clergyman. Writ dated March 21, 1887. The declaration as amended was as follows:</p> <p>“The plaintiff says that, before the speaking of the words herein alleged be was, hitherto bad been, and still is a physician in regular practice in Southbridge, having the reasonable skill and qualification proper and necessary for the practice of that calling, business, and profession, and had always conducted himself therein with great diligence, industry, and propriety, and bad acquired and was acquiring thereby great gain and profit from the practice of bis said calling, business, and profession. He further says, be then was and still is living in lawful wedlock, having been lawfully married, that he then was and still is a person of culture and education, and a person of good moral character and a Christian man, and had always behaved himself with propriety, as a good citizen and a Christian, and was then and still is a person fit for social intercourse and association, professional relations, and practice among the members of the Notre Dame Roman Catholic Church in that place,- and among all Christian people, and with defendant himself. Nevertheless, the plaintiff says the defendant, well knowing the premises aforesaid, but intending to bring the plaintiff into public contempt, infamy, and disgrace with and among all bis neighbors and all the members of the church aforesaid, and to cause it to be believed by them and the said members of the said church that the plaintiff was a person of bad character, and unfit to be employed in his said calling, business, and profession, and an improper person for social intercourse and association among persons of good moral and religious character, and to cause the plaintiff to be deprived of and to lose his said practice in his said calling, business, and profession, and employment therein, and of the gains and profits thereof, and of his social rank and standing aforesaid, and to degrade, vex, harass, and annoy the plaintiff by influencing and preventing the members of said church from employing the plaintiff in his said calling, business, and profession, did heretofore, on a certain day, to wit, on or about the 27th day of February last past, in a certain discourse which the defendant then uttered in the said Notre Dame Roman Catholic Church, and before and in the presence and hearing of the members of said church then and there assembled and congregated, publicly, falsely, and maliciously spoke and published of the plaintiff, in the French language, to said members of the said church and congregation then and there assembled understanding said language, the words following : [here followed words in the French language;] that the words being translated into the English language have, and were understood by the persons to whom they were so published to have, the meaning and effect following, that is to say:</p> <p>“ ‘ During my absence there was a scandal of a marriage. by law in this parish, and you know who this person is. On my return from Europe, when I first heard of it, I thought I would say nothing about it, because I supposed he would not have the sympathies of the people. But I see it is not so, and, on the contrary, this person is gaining the sympathies and favor of the people, and that they are running after this person, and they give him the first places. Why do you run after him so ? Not long ago I was invited to a party where that person was, and I refused to go, because I would not meet an excommunicated person. If any of you are sick and want my assistance, you need not send for me if this person is there, because I will not be under the same roof with him.’</p> <p>“ The plaintiff further says, that the defendant then and there, and by the words then and there spoken, as above alleged, publicly, falsely, and maliciously accused the plaintiff, in his said calling, business, and profession, of being a person who was unfit to associate with persons of good moral and religious character, and to be received and employed by such persons, and unworthy of their favors, thereby meaning the plaintiff, and then and there understood to be the plaintiff, by the audience and congregation then and there present.</p> <p>“ And the plaintiff says, that by means of the said grievances so committed by the said defendant, the plaintiff is greatly injured in his good name, fame, and credit, and in his said trade, calling, and profession, and brought into public scandal, infamy, and disgrace with and among the members of said Catholic Church, and other good and worthy persons, and that such members of said church, and other good and worthy persons, have hitherto, by reason thereof, wholly refused and still do refuse to have any transactions, or discourse, or acquaintance with the plaintiff, as they were before accustomed to have, or to employ the' said plaintiff in his said trade, calling, and profession, and would otherwise have had and done, whereby the said plaintiff has been deprived of the society of such members of the said church, and other good and worthy persons, and of the profits, income, and emoluments of his said trade, profession, and employment as aforesaid.”</p> <p>The defendant demurred, on the grounds, first, that the declaration did not set out a legal cause of action. Secondly, that the words alleged to be slanderous, according to their natural import and meaning, (1) could not injure the plaintiff as alleged ; (2) were “ not slanderous, inasmuch as they do not charge the plaintiff with any crime, do not hold the plaintiff up to contempt or ridicule, and do not appear to have been spoken of the plaintiff in his profession or calling ” ; (3) did not “ accuse the plaintiff in his business of being a person unfit to associate with persons of good moral and religious character, and to be received and employed by such persons, and unworthy of their favors, as alleged in the amended count of plaintiff’s declaration”; and (4) “could not bring the plaintiff into public contempt, infamy, and disgrace; could not cause it to be believed by the members of the church that the plaintiff was a person of bad character and unfit to be employed in his calling, or an improper person for social intercourse, or to cause the plaintiff to be deprived of and lose his practice and the gains thereof, and of his social rank and standing; and could not degrade, vex, harass, and' annoy the plaintiff by influencing the members of the church from employing the plaintiff in his business, as alleged,” and “ do not naturally import an intention on the part of the defendant to do the matters and things and produce the results charged.” The Superior Court overruled the demurrer.</p> <p>At the trial, before Thompson, J., the plaintiff testified that he was a physician engaged in the practice of his profession in Southbridge; that he was a member of the Roman Catholic Church and of the parish of Notre Dame in Southbridge, of which the defendant was pastor; that his first wife obtained a divorce from him in February, 1886; that he was married again on May 8,1886, at Southbridge, during the defendant’s absence in Europe, by a justice of- the peace; that by the canons of the Roman Catholic Church his act of marrying again excommunicated him from that church; that he did not attend church after the date of his second marriage; and that up to February 27, 1887, he was earning in his practice as a physician from eighteen hundred to two thousand dollars a year. The plaintiff was then permitted to testify, against the objection of the defendant, that there was a change in his business after February 27, 1887; that during the first week after that date he did not earn anything, and that subsequently he was not able to earn more than about one dollar per day, until at the end of four months he ceased to practice his profession in Southbridge.</p> <p>The defendant, who was called as a witness by the plaintiff, testified, although against the defendant’s objection, that on March 27, 1887, he said to his congregation, with reference to the case at bar: “ An action has been brought against me. I am not the party sued. Everything falls upon the congregation. Be not disturbed. The congregation is worth sixty thousand dollars. We will see if the church shall destroy the vermin, or the vermin the church.”</p> <p>There was evidence tending to show that the defendant, when speaking the words in question, had in mind the plaintiff’s second marriage, and referred to it; that he occupied from ten to twenty minutes in speaking of the matter; and that the witnesses called by the plaintiff, who heard the words, understood that the defendant referred to the plaintiff. These witnesses testified to the words spoken by the defendant, and, while differing somewhat as to the exact words used by him, collectively testified substantially in support of all the words set forth in the declaration, and alleged to haye been used by the defendant.</p> <p>At the close of the evidence, the defendant asked the judge to give the following instructions among others to the jury :</p> <p>“ 1. That there is no evidence to warrant a verdict for the plaintiff. . . .</p> <p>“ 3. That the words set out do not impute to the plaintiff, as a physician, either professional misconduct or incapacity, and according to their usual and natural import do not relate to him as a professional man, and do not relate to his profession.</p> <p>“4. That there is no sufficient allegation of special damage to make the words actionable. . . .</p> <p>“ 6. That words uttered after the bringing of the suit, and with reference to the same, are not evidence of malice in the original publication.</p> <p>“ 7. That the plaintiff cannot recover in the case at bar by reason of a variance between the allegation and the proof.”</p> <p>The judge refused to give these instructions, but submitted the case to the jury under other instructions not excepted to, which permitted them to find that the words in question were spoken of the plaintiff in respect of his profession as a physician, and were defamatory and actionable per se without an averment of special damage.</p> <p>The jury returned a verdict for the plaintiff, in the sum of $1,500; and the defendant alleged exceptions.</p>

Tort for personal injuries sustained by the plaintiff by falling upon a private sidewalk belonging to the defendant, and negligently suffered by her to remain in a dangerous condition. At the trial in the Superior Court, before Blodgett, J., there was evidence tending to prove the following facts. The defendant was the owner of an estate abutting on West Rutland Square, a public street in the city of Boston.

<p>Two actions OR tort to recover damages caused by the defendants in abating nuisances upon the plaintiff’s premises in Brookline. The cases were tried together in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The evidence tended to prove the following facts. The plaintiffs were the owners respectively of adjoining lots of land fronting on Pearl Street in Brookline, and sloping back from that street to a brook. The defendants other than Russell were the selectmen and ex officio members of the board of health of that town; and he was employed by the board to fill up certain cesspools on the plaintiffs’ premises, which overflowed into the brook, and to connect the houses thereon with a common sewer in Pearl Street. The sewer in that street was laid as deep as it was possible to lay it in order to allow its discharge into the main sewer of the town. On August 1, 1888, the board of health duly voted to notify, and did notify, the plaintiffs, among other persons, to abate within ten days nuisances on their respective premises caused by the overflow of the cesspools into the brook; otherwise, the board would abate the same and charge the cost to them. The plaintiffs failed to comply with the order, and the board, on September 17 following, voted to connect the plaintiffs’ premises with the sewer, and, having duly-notified the plaintiffs of that fact, on September 26 employed Russell, who was an experienced mason, to do the work. Thereupon Russell went with a foreman and laborers upon the plaintiffs’ premises, and proceeded to fill up the cesspools and to connect the houses by means of drains with the sewer in the street. Everything was done under the supervision and direction of the board of health, and in a good and workmanlike manner. The land of the plaintiffs sloped so sharply from the street towards the brook that the drains, when laid from the houses on the rear of the lots to the sewer at the slightest practicable pitch so as to discharge into the sewer at the lowest point, ran for a part of the distance upon and above the surface of the ground. Russell caused gravel to be brought upon the premises, and to be put under and over the drains to sustain them from beneath and to protect and cover them from above, leaving the surface of the ground uneven in places. At the same time a fence standing between the plaintiffs’ lots was torn down, with the exception of the posts, which were left to support planks placed against them to retain the gravel. . Two small hen-houses upon the land of the plaintiff in the second case were also moved out of the way; and, in order to conduct a pipe from one of the drains into a house belonging to the plaintiff in the first case, one of the timbers supporting the kitchen floor was partially cut away. During the laying of the drains, walking over the premises was made more difficult, and the use of the premises was somewhat interfered with; the plaintiffs were deprived of their drainage a portion of the time while the work was going on; and the filling around the drains caused water to run into the cellar of the house of the plaintiff in the second case, and under one of the houses of the plaintiff in the first case, which was built without any cellar. The work was done on the plaintiffs’ premises at intervals from September 26 to November 29, 1888, the delay in each case between the times of working extending over several days. When the work was begun, Russell’s foreman first came upon the premises, and, when asked by one of the plaintiffs what it was proposed to do, replied that he was going to connect the houses with the sewer ; that he had authority from the selectmen; and that if he was interfered with at all he would bring a policeman there and charge four dollars a day for his services; whereupon no further attempt to hinder the work was made by the plaintiffs.</p> <p>On the above facts, the defendants asked the judge to rule, as matter of law, that the plaintiffs were not entitled to recover. The judge declined so to rule, but did rule, at the request of the defendants, that the .proceedings of the board of health were a sufficient justification of all that was done on the premises by any of the defendants, provided they acted in good faith, and, against the objection of the defendants, submitted the cases to the jury upon the question whether the defendants did what they did in good faith. The jury returned a verdict for the plaintiff in each case; and the defendants alleged exceptions.</p>

<p>Easement— Taking by Eminent Domain — Damages.</p> <p>The owners of lots bounding on Pemberton Square in Boston mutually covenanted, among other things, that portions of some of the lots should not be built upon, or not built upon above a certain height; and afterwards the city took such lots for a site for the new court-house. Held, that easements of light, air, and prospect were created by the covenant, and that the city was liable in damages for their extinguishment.</p>

<p>Insolvent Debtor — Discharge — Non-resident Creditor — Promissory Note.</p> <p>A discharge in insolvency under the Pub. Sts. c. 157, §§ 80, 81, is no bar to an action upon a promissory note made here by the insolvent debtor, who is a citizen of this State, and here payable, given by him to a citizen of another State, who has not proved his claim in insolvency.</p>

<p>Joint Contractors — Survivorship — Sharing of Profits.</p> <p>One of several joint contractors, having rendered some services in securing and in performing the contract, died very shortly after it was made, and his fellow contractors went on and completed nearly all the work without his aid. Held, that his estate was entitled to share in the profits realized from the contract, deducting therefrom the cost of extra services the employment of which was made necessary by his death.</p>

Doolittle, as administrator of the estate of Levi Doolittle, deceased, disallowing the disbursements therein stated among the nest of kin of the intestate, and ordering such administrator to pay the amount thereof to Andrew J. Browne, as administrator de bonis non of the same estate.

Sts. c. 136, § 13, filed by James W. Newell, administrator de bonis non of the estate of Isaac Taylor, ordering the respondent, Clarence A. Peaslee, as administrator of the estate of. George S. Paine, to retain $2,503.74, assets of the estate in his hands, to satisfy a claim of the petitioner when it.should become payable. Hearing before Holmes, J., who affirmed the decree, and reported the case, at the respondent’s request, for the consideration of the full court.