Volume 152 — Massachusetts Reports

Petition to the Superior Court for a writ of habeas corpus, alleging that Michael Brown was illegally imprisoned and restrained in the House of Industry in Boston, under a precept issued upon a sentence imposed by the Municipal Court of the South Boston District in the city of Boston, upon a complaint charging him with fraudulently and deceitfully enticing and taking away an unmarried female under the age of sixteen years, for the purpose of effecting a clandestine marriage,…

<p>Shares of Stock — Gift inter Vivos — Delivery of Certificate — Waiver.</p> <p>Shares of stock in a corporation at the death of a testator stood in his name on the corporation books, no written transfer or power of attorney to transfer having been executed by him, and the unindorsed certificate was with his securities in a box in the possession of the executor’s wife. On the issue of a delivery of the stock to her as a gift, the evidence of the testator’s intention to give her the stock was uncertain and equivocal, and consistent with the theory that he meant only to deposit the certificate in the box with his papers. Held, that the evidence was insufficient to show that the testator intended to make her a gift of the stock.</p> <p>The executor, who was charged in the Probate Court with the value of the stock, for the first time before the full court raised the point orally in argument that he ought not to be charged in his account with property in another’s possession. Held, that he must be taken to have waived the objection.</p>

Two actions OE tort, against Arthur Kemp and his wife, Adelaide M. Kemp, to recover damages for injuries resulting from the bite of a dog. The first case was brought by the plaintiff, a minor, for personal injuries, and the second was brought by his father, for the loss of his services, and for the expense of caring for him while he was suffering from his injuries.

<p>Indictment for keeping a common nuisance and intoxicating liquors with intent unlawfully to sell the same. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Criminal Case — Reputation for Honesty — Corroboration of Accomplice — Rule of Practice.</p> <p>In a criminal case, the jury should give to evidence concerning the defendant’s reputation for honesty such weight as they think it deserves, and if, after doing so, they are not satisfied beyond a reasonable doubt of his guilt, they must acquit him.</p> <p>It is a general rule of practice in criminal cases, but not a rule of law, to advise a jury not to convict upon the uncorroborated testimony of an accomplice; and the judge presiding at the trial may, in his discretion, decline to adopt the rule, and may refuse so to advise the jury, or to define corroborative evidence within the meaning of the rule.</p>

Libel for divorce, dated January 1, 1889, brought by a husband against his wife for bigamy and adultery, in which he prayed for the custody of their two sons, about five and six years old respectively. At the hearing in the Superior Court, before Mason, J., there was evidence in support of the averments of the libel, and no misconduct was shown on the part of the libellant.

<p>Mortgage — Execution Sale — Equity of Redemption—Foreclosure Sale — Mortgagor's Right to Surplus Proceeds — Money had and received.</p> <p>A mortgagee of land purchased the mortgagor’s equity of redemption therein at its sale on execution to satisfy another debt due him from the mortgagor, and subsequently bought the land at a sale under a power contained in the mortgage, the proceeds of both sales being in excess of the mortgagor’s entire indebtedness to him. Held, that the mortgagor could maintain an action for money had and received, brought within a year of the sale on execution, to recover the surplus proceeds in the mortgagee’s hands.</p>

<p>Mortgage of Personal Property— Tender of Payment — Bringing Money into Court—Replevin.</p> <p>A mortgagor of personal property, upon a tender of payment by him under tile Pub. Sts. c. 192, § 6, and a non-return of the property, may maintain replevin therefor without bringing the money into court.</p>

<p>Bill in equity, to prevent the executor of the will of Ellen Gaffney from distributing the residue of the estate among the testatrix’s heirs at law, and to compel him to pay it to the plaintiff, as her sole next of kin. Hearing on the pleadings and agreed facts by Eevens, J., who reserved the case for the consideration of the full court, in substance as follows.</p> <p>The testatrix, who died on February 2,1888, by her will, which was dated October 8,1886, and was duly admitted to probate, devised the residue of her estate above debts and funeral charges in trust to the defendant, who was also named executor. The will contained the following provisions, which alone are material :</p> <p>“ I desire my said trustee to pay over the rents, profits, and income of my estate in his hands, deducting all necessary expenses and charges in manner as follows, to wit: to pay the same or apply the same, in such a way and to such an extent as in his discretion is best, to the use and benefit of my son, Daniel Gaffney; and should said Daniel have a child or children, my said trustee is to have full discretion to apply said rents, profits, or income for their benefit, either solely or in such proportions as he may deem fit between said Daniel and his children. In the event of my said son dying childless, I direct my said trustee to hold said estate for the use and benefit of such of my next of kin as in his opinion is or are the most needful or deserving, and, should occasion require him to divide and distribute said estate, he is not compelled to make an equal distribution, but may use his discretion. This trust is to last so long as my son and his present wife are living, and until the youngest of his children, if he have any, shall have attained the age of twenty-one years; and should said Daniel die childless, this trust may expire at any time thereafter when the said trustee wishes.”</p> <p>Daniel Gaffney, the testatrix’s son, died during her lifetime, on June 21,1887, leaving a widow and a daughter, their only child, who died on January 18, 1888. The widow survived the testatrix. The heirs at law of the testatrix living at her decease consisted of the plaintiff, who was her sister, and various nephews and nieces, the children of a deceased brother of the testatrix. Another brother of the testatrix had disappeared, and had not been heard from for thirty years.</p>

Petition to the Superior Court, under the St. of 1887, c. 246,* for damages occasioned to the petitioner from the alleged negligence of the respondent Commonwealth, its officers and agents. Trial in the Superior Court, before Barker, J., who found for the petitioner, and reported the case for the determination of this court, in substance as follows.

<p>Acceptance of Draft—Consideration — Revocation — False Representations.</p> <p>Want of consideration between the drawer and drawee is not a defence to the acceptor of a draft passing before acceptance into the hands of a bona fide holder for value; and the acceptance cannot be revoked after delivery to such holder’s agent, although the fact of acceptance was not known to the holder, and he thereafter made no further advances.</p> <p>The acceptance of a draft already negotiated for a valuable consideration cannot be rescinded on the ground of fraudulent representations made to the acceptor by the drawer, if the holder had no knowledge of the fraud and the drawer was not his agent.</p>

<p>Personal Injuries—•Master and Servant — Negligence.</p> <p>In an action for personal injuries against a steamship company which had undertaken to load a lighter alongside its wharf with cotton, there was evidence that its employees in wheeling the bales on hoard the lighter were to act under the direction of its stevedore, but in throwing them through a hatch into the hold under that of an officer of the lighter; and that such an employee wheeled a bale upon the lighter, and, without receiving or waiting for any orders from such officer, threw it into the hold and injured the plaintiff. Held, that there was evidence that the employee in throwing the hale of cotton acted as the defendant’s servant, and that the defendant was liable for his negligence.</p>

Tort, by the administratrix of the estate of Joseph F. Tuttle, for causing his death. At the trial in the Superior Court, before Blodgett, J., there was evidence that the intestate was killed in the night-time by a freight train at the crossing of the defendant’s railroad by a highway at grade.

<p>Tout, for loss of services of the plaintiff’s wife, resulting from personal injuries occasioned by stepping into the defendant’s coal-hole in a sidewalk on Washington Street, in Boston, and for the expense of caring for her while suffering therefrom. Trial in the Superior Court, before JETammond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence that the plaintiff’s wife fell into the defendant’s coal-hole, which was situated in front of the premises owned by him on that street, by reason of the cover being insecure, and that she was injured. It was admitted that the sidewalk was within the limits of the highway; that the defendant was the owner of the building connected with the coal-hole; that at the time of the accident the building was let to several tenants at will, who paid their rent monthly.; that the building and coal-hole were under the care of a janitor and agents employed by the defendant; .and that thej defendant made whatever repairs were needed inside and outside the building. It appeared that no notice in writing of the time, place, and cause of the injury within thirty days thereafter was given to the defendant, or to the janitor of the building. The defendant requested the judge to instruct the jury as follows:</p> <p>“First. In order to entitle the plaintiff to recover, it must appear in evidence that he gave or caused to be given to the defendant, within thirty days after the accident, a notice in writing of the time, place, and cause of the injury; and such notice is a condition precedent, by statute, to the right of the plaintiff to recover for any injury arising from the alleged defect or want of repair of the highway.</p> <p>“ Second. The coal-hole, being within the limits of the street, was a portion of the highway which the city was under obligation to keep in repair and reasonably safe for public travel; and if the defendant was under obligation to keep that portion of the way in repair, his obligation was the same as the city’s, viz. to use reasonable care and diligence to keep the way safe.</p> <p>“ Third. The defendant is not by law held to be the insurer of the absolute safety of the coal-hole, but is under only the same obligations as are imposed upon the city; that is, he is liable only for neglecting to use reasonable care and diligence to secure the safety of that part of the -way; and if the defendant provided a proper coal-hole, with a proper cover, properly fitted, and with a proper fastening, he has fulfilled his obligation.</p> <p>“ Fourth. If the jury find that the coal-hole was a proper one, with a proper cover, properly fitted, and with a proper fastening, they must find a verdict for the defendant, unless they also find that the defendant had knowledge that the cover was not fastened at the time of the accident.</p> <p>“Fifth. The landlord is not responsible to third parties for the misconduct or injurious acts of his tenants; and if the defendant furnished a proper and safe coal-hole and cover, and fastening, he would not be liable to the plaintiff if through the neglect of his tenant the cover was not properly fastened, unless the fact that the tenant was so using the coal-hole was brought to his knowledge.”</p> <p>The judge refused to give these instructions, and instructed the jury as follows:</p> <p>“ The defendant is not the insurer of the safety of the coal-hole ; he is only held to ordinary care and diligence about it. Was ordinary care exercised about that coal-hole? The defendant himself knew nothing about it, but he must be held responsible for the acts of those to whom he delegated the care of it. On that you will see, among other things, where the coal-hole was. It was in a highway. See how much the highway was travelled; in what part of the sidewalk it is, whether on that part over which people were likely to travel or not; see further what would be likely to be the consequences arising from having it out of order, because the consequences of an accident may properly be taken into consideration by the jury in considering what care should be taken to avoid it. The defendant had the right to use that part of his premises under the sidewalk, providing he exercised due care with reference to people passing over it. The fact that it was a part of the street would not prevent him from using his land under the street, providing he takes proper care for the persons who are going over it. He is not to be held responsible because the coal-hole was there, nor from the fact that there was an excavation under the sidewalk; but the coal-hole and the excavation being there, he is held responsible for such care as ought to be exercised under the circumstances. On that you will see what was the original construction of the coal-hole. Was there a sound cover or not? Did he have any reason to believe that it was out of order? Was any complaint ever made to him or to his agents? If complaint was made to his agents, and the care was delegated to them, their care is the care of the defendant; their eyes are his eyes, their ears are his, and their hands are his, so far as to them is delegated the care of the coal-hole. Of coui’se you will look and see, among other things, whether the hole as originally constructed was such as would be likely to get out of order; you will see what care was exercised by the janitor or others; you will consider how many persons had the right to put coal through the hole; and whether that would increase or decrease the care required about it. It is in dispute as to what was the original condition of the coal-hole and cover. See whether, under all the circumstances, at the time of this accident that cover was in a dangerous condition, by reason of such a lack of care as ought to have been exercised with reference to it, because you must hold the defendant'to such care as properly ought to have been exercised about it.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract, on an account annexed, to recover money deposited with the defendant bank in the name of the plaintiff during her minority. The account annexed was made up of twelve items, consisting of deposits numbered from 1 to 11, made from November 20, 1867, to December 1, 1870, and the remaining item of “ dividends,” in all amounting to five hundred and ten dollars. Trial in the Superior Court, before Brigham, C. J., who ruled that the plaintiff could not maintain her action, and ordered the jury to return a verdict for the defendant, and reported the case for the determination of this court. If the ruling was wrong, and certain evidence was improperly admitted, the verdict was to be set aside and a new trial ordered; otherwise, the verdict was to stand. The facts and nature of the evidence appear in the opinion.</p>

<p>Estate of Deceased Person — Husband and Wife — Real Estate in Fee.</p> <p>Under the St. of 1880, c. 211, (Pub. Sts. c. 124,) providing that the surviving husband or wife of an intestate leaving no issue living “shall take in fee the real estate of such deceased to an amount not exceeding five thousand dollars in value,” to be “ assigned and set out ” by the Probate Court, the survivor takes a vested inheritable estate in fee defined by its value until duly set out or assigned, which descends like other real estate.</p>

<p>Capital and Income — Corporation — Dividend.</p> <p>Profits of a corporation are not appropriated to its capital by the mere fact that it has incurred a debt nearly equal in amount to such profits for permanent improvements.</p> <p>A cash dividend, declared out of profits by a corporation indebted nearly to the amount of such profits for permanent improvements, which is exactly sufficient to pay for the proportion of new stock at par issued at the same time and allotted to each stockholder for subscription, and which the stockholders may elect to invest in the new stock, or may retain, selling the right to subscribe for the new stock which is worth more than par, is not a stock dividend; but is to be treated, as between a life tenant and remainderman, as income.</p>

Bill in equity, filed in the Superior Court on June 6, 1889, by the inhabitants of the town of Needham, and by its selectmen acting as surveyors of highways, against the New York and New England Railroad Company, containing the following allegations: “First.

<p>Equitable Attachment — Insolvent Debtor — After acquired Debt— Trustee Process — Non-resident Creditor.</p> <p>A bill in equity cannot be maintained to reach property in its nature attachable only by trustee process where trustee process will not lie.</p> <p>The limitation of jurisdiction in equity by the Pub. Sts. c. 151, § 2, cl. 11, relates to property of such a nature that it cannot be attached or taken on execution in actions at law, and is applicable to suits brought under the general equity jurisdiction to collect judgments obtained at law.</p> <p>A non-resident creditor, whose claim, though provable, was not proved against an estate in insolvency, but has been reduced to a judgment, cannot maintain a bill in equity under the Pub. Sts. c. 151, § 2, cl. 11, to reach and apply in payment of the judgment a debt which became due to the debtor, who has obtained his discharge, after the insolvency proceedings were begun.</p>

<p>Bill in equity, filed on October 21, 1889, by the surviving trustee under the will of Benjamin Gorham, for instructions as to the disposition of the residue of the estate. The case was heard by Field, J., and was as follows.</p> <p>Benjamin Gorham, who died on September 27, 1855, by his will gave all the residue of his estate in trust for his son, Benjamin L. Gorham, the trustees to have the exclusive control and management thereof, “ and to pay over any of the income, or of the principal if necessary, from time to time, for the education or other wants of said B. L. Gorham, or his issue if he shall have any, as the trustees may think fit, any surplus income to fall into the trust fund; but it is my request and my will that from the income of said property, and from the principal if necessary, there shall be expended liberally from time to time whatever may be necessary to add to his comfort, or contribute to the gratification of his wishes and tastes; upon the death of my son, the trustees are to pay and transfer to his issue, if he shall leave any, all the trust fund real and personal estate in fee simple, discharged from all trusts.”</p> <p>The will also contained the following provisions, which alone are material: “ If my son Benjamin should die without leaving issue, then whatever may remain of what I have given in trust for him and which may be remaining in trust, and whatever I may acquire in case he should die before me leaving no issue, I give and distribute in fee as follows: I give to Mrs. Elizabeth C. Dutton one twelfth part, and to her brother, the Rev. Mr. Lowell, one twelfth part, and to Mr. Francis C. Lowell one twelfth part, and the children of his sister Susan one twelfth part; the remaining eight twelfths I give in fee to such as may be living of the children of my brother Nathaniel Gorham, the children of my sister Mrs. Rebecca Parks, the children of my sister Mrs. Mary Bartlett, and the children of my sister Mrs. Lydia Phillips, each individual nephew and niece to take -an equal share, the issue of any deceased legatee to take its parent’s legacy.”</p> <p>Mrs. Elizabeth C. Dutton died in 1864, intestate, and there was no administrator of her estate; the Rev. Charles Lowell, who was the Rev. Mr. Lowell mentioned in the will, died in 1861, and the defendant James Russell Lowell, his son, was the surviving executor of his estate Francis C. Lowell died in 187-1, and the defendant Edward J. Lowell, his son, was the executor of his estate; and Susan Cabot Lowell, who was the sister Susan mentioned in the will, had two children, of whom Susan Cabot Sohier died in 1868, and the other, John Lowell, was the executor of his sister, and one of the defendants. The nephews and nieces of the testator, children of Nathaniel Gorham, Mrs. Rebecca Parks, Mrs. Mary Bartlett, and Mrs. Lydia-Phillips, died, some of them before the testator, without leaving issue, and all the remainder before his son Benjamin L. Gorham. Of the nephews and nieces who survived the testator and died before Benjamin L. Gorham, some left issue which also did not survive him; and others left numerous descendants immediate and remote, the parents of some of the more remote descendants being alive, and the parents of others being dead. Benjamin L. Gorham died on June 2, 1889, leaving no issue, and the trust fund remained undisposed of in the hands of the plaintiff, as the sole surviving trustee under the will.</p> <p>An order of notice was issued to all persons interested to appear, and published, and more than one hundred persons were made parties defendant, either personally or as the executors or administrators of real or possible parties in interest, among them John Lowell, for himself and as executor of Susan Cabot Sohier; Henry R. Dalton, junior, for himself and as the executor of his mother, Elizabeth L. D. Dalton, whose father, a son of Mrs. Elizabeth C. Dutton, was dead, Sarah L. Barnard and others, whose parents were more immediate descendants of Rev. Charles Lowell, and were alive; Rebecca G. Kettell and others, whose parents, more immediate descendants of 'Mrs. Mary Bartlett, died before Benjamin L. Gorham ; Charles P. Greenough, the administrator of Francis Yose, who died after his mother, Rebecca Yose, a daughter of Mrs. Mary Bartlett, and before Benjamin L. Gorham, leaving no issue; and Rebecca Eld-redge and others, whose parents were more immediate descendants of Mrs. Rebecca Parks, and died before Benjamin L. Gorham.</p> <p>The legal representatives of the legatees — Mrs. Elizabeth C. Dutton, Rev. Charles Lowell, Francis C. Lowell, and Susan Cabot Sohier — contended that the words “the issue of any deceased legatee to take its parent’s legacy,” in the will, did not apply to these legatees at all, and that their shares were payable to them as such legal representatives; while the issue of these legatees contended that the words above quoted did apply to such legatees, and that their shares were payable under the will to such issue.</p> <p>The living issue of deceased legatees contended that the words “ such as may be living,” in the residuary clause, meant such of the legatees as might be living at the death of Benjamin L. Gorham, and that they only were entitled to share in the trust fund; while the legal representatives of deceased legatees contended that the words above quoted meant snch as might be living at the death of the testator, and that they were entitled to share in the trust fund as such legal representatives.</p> <p>The legal representatives of “ issue ” who had deceased after their parents, but before Benjamin L. Gorham, contended that the words “ such as may be living ” referred to nephews and nieces of the testator only; and that upon the death of a nephew or niece the interests of such issue vested immediately, and that such legal representatives were entitled thereto.</p> <p>The issue of deceased legatees under the will, whose parents still living were also the issue of such legatees, contended that all the living issue of any deceased legatee were entitled to their ancestor’s portion in equal shares per capita; while such of the issue of deceased legatees as had no such parents living contended that the issue of such legatees were entitled to share only by right of representation.</p> <p>The judge ruled that it was not necessary to make other persons parties defendant, and reserved the case for the consideration of the full court.</p>

<p>Ancillary Administration — Payment of Legacy — Interest — Widow — Bill for Instructions by Executor.</p> <p>The executor oí a deceased non resident, to whom ancillary letters testamentary have been granted in this Commonwealth, may bring a bill for instructions in this court, if the personal estate found in this Commonwealth is ample for the payment of debts and legacies, the legatees and residuary legatees being within the jurisdiction.</p> <p>A pecuniary legacy to the widow of a testator domiciled in New Hampshire when he died, given and accepted in lieu of dower, homestead rights, and a distributive share in the estate, to be paid to her “as soon as convenient” after his death, and accompanied by a devise of productive real estate here of which she was dowable, will not bear interest until the end of one year from the death of the testator.</p> <p>This court will, in its discretion entertain a bill brought by an executor for instructions as to the payment of interest on a deposit in a trust company on account of a large pecuniary legacy, although the Probate Court might instruct him, or otherwise pass upon the question, in ordering a final settlement and distribution of the estate.</p> <p>A legatee under a non-resident’s will admitted to probate in another State is not required to accept payment of his legacy when tendered by the executor, although the latter, pending probate proceedings here, has been appointed a special administrator of the personal estate found in this Commonwealth, and is afterwards granted ancillary letters testamentary.</p> <p>Legatees are not bound to accept payment of their legacies in instalments when tendered by executors without an order of the Probate Court for partial distribution.</p> <p>Tlie interest upon a legacy remaining unpaid after the expiration of one year from the testator’s death is to be computed at the legal rate, without regard to the rate actually realized or obtainable from safe investments, but not with annual rests.</p>

<p>Will — Specific Devise — Trust Fund.</p> <p>A testator devised his residence in trust for his wife for life, the trustees at her death to convey it to the Home for Aged Men, and, disclaiming any intention to “ impose any restriction upon the absolute title to be conveyed,” suggested its use for a “ home.” After a specific bequest to his wife absolutely, and a gift to her for life of the income of a trust fund of twenty-five thousand dollars to be created out of personal property not specifically bequeathed, the testator stated that he preferred the provisions for his wife “ to aE other devises and bequests of this will,” and directed the specific bequest to be paid to her, and the trust fund to “ be formed before payment of any other legacies, and to be free from abatement ” in case the estate should prove insufficient to carry out the will. Another fund was then to be formed for the testator’s sons, and preferred “ next after ” the devises and bequests already made. At the wife’s death, ten thousand dollars was to be paid out of the twenty-five thousand dollar fund to the Washingtonian Home, and the balance was to be held for the benefit of the sons and a granddaughter. A power to sell real estate conferred upon the executor and the trustees expressly excepted the testator’s residence. The wife died before the testator; and the personal estate after payment of debts was less than ten thousand dollars in value. Held, that the testator’s residence was not to be sold for the purpose of forming the fund of twenty-five thousand dollars; but that the Washingtonian Home was entitled to all the personal estate.</p>

<p>Bile in equity, brought by the trustee under the will of Jared Coffin as tbe successor of the trustees named therein, for instructions as to the disposition of one seventh of the estate. Holmes, J., reserved the case, at the request of all the parties, for the consideration of the full court. The facts appear in the opinion.</p>

<p>Voluntary Association — Label— Trade-mark — Equity Jurisdiction.</p> <p>If a voluntary association of workmen, embracing many members, has adopted for use upon boxes containing articles made by the members a label indicating that the articles were made by some of its members, but not by whom, the right to use which belongs equally to all of them, and continues only while they remain members, a bill in equity cannot be maintained by individual members or officers of the association to restrain an infringement of the label as a trade-mark.</p>

<p>Mortgage — Agreement to assume — “ Pay ” — Set-off.</p> <p>A grantee, who accepts a deed of land reciting his agreement to assume and pay two mortgages thereon made by the grantor, is bound to relieve not only the grantor from all personal liability for the debts, but also the land from the lien of the mortgages ; and if he permits the first mortgage to be foreclosed, the grantor is entitled to recover from him as damages the value of the security which he has lost, up to and not exceeding the amount of the debt secured by the second mortgage, although that mortgage is not yet due and he has not been required to pay anything on account thereof. Field, Devens, and W. Allen, JJ., dissenting.</p> <p>Unliquidated damages for breach of an agreement to pay a mortgage upon real estate cannot be the subject of a set-off.</p>

<p>Tort for false and fraudulent representations in the sale of land. At the trial in the Superior Court, before Brigham,, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

Bill in equity, filed October 24, 1889, by Edwin A. Hills, wbo was the surviving trustee under the residuary clause of the will of Benjamin Gorham, and also the administrator of the estate of Benjamin L. Gorham, the testator’s son, against the next of kin of Benjamín L. Gorham, and against Ellen H. Barnard, Rebecca G. Kettell, Rufus Parks, and others, residuary legatees under the will of Benjamin Gorham, and many others, who were interested under the wills of Benjamin Gorham…

<p>Tort, with a count in contract, against Levi W. Brawley, who died after entry, and his administratrix was summoned in to defend the action. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Partition — Commissioners — Return — Boundary.</p> <p>Upon the question of setting aside the return of commissioners appointed under the Pub. Sts. c. 178, to make partition of lands, parol evidence of their proceedings not appearing in the return is competent, so far as it tends to show mistakes of law made by the commissioners, which materially affect the equality or justice of the partition.</p> <p>Commissioners to make partition may permit the parties to state their preferences and to give their reasons for any particular division of the land, but are not required to hear experts or other witnesses as to the effect thereof upon the parties, or upon adjoining property owned by them in severalty; nor are they bound by admissions made by the parties.</p> <p>If the warrant to commissioners appointed to make partition of lands describes the boundary line of one of the lots as “ running by ” a lane, their return is not irregular because it includes land to the centre of the lane as part of the premises.</p>

<p>Specific Performance — Agreement to convey in Lease.</p> <p>A lease, describing the leased premises as a “ dwelling-house, with barn and outbuildings and all land now being used in connection therewith, being about seven acres, more or less, situated ” on a certain street, contained, besides covenants against waste and underletting, an agreement for the sale of the premises to the lessee. The lessee cut down trees of little value upon the premises, and, being unmarried, allowed the family with which he lived to occupy the premises rent free. After a refusal to convey, upon tender duly made of the agreed price, he brought a bill for specific performance, more particularly describing the premises, and alleging them to be the same as those described in the lease, which allegation the answer did not deny; and all the evidence referred to the leased premises. Held, that the bill could be maintained.</p> <p>A lessee, having the option to buy the leased premises, duly tendered the purchase money to the lessor, but was refused a conveyance. He thereupon ceased to pay rent while continuing to occupy and enjoy the premises, and employed the purchase money in his business. Held, on a bill brought by him for specific performance, that he was chargeable with interest on the purchase money from the time when he ceased to pay rent to the date of a decree therefor.</p>

Two ACTIONS ON CONTRACT, to recover the amount of subscriptions towards the widening and extension of certain avenues in Boston. The cases were tried together in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows. There was evidence tending to prove the following facts.

<p>Contract, to recover for the services of the plaintiff.as treasurer of the defendant corporation from January 2,1879, to May 15, 1881. At the trial, in the Superior Court, before Lathrop, J., a verdict was ordered for the plaintiff; and the defendant alleged exceptions to the exclusion of certain evidence, the nature of which appears in the opinion.</p>

<p>Negligence — Railroad—Death of Employee—Presumption—Rules for -moving Trains.</p> <p>In an action on the Pub. Sts. c, 112, § 212, as amended by the St. of 1883, c. 243, against a railroad company for causing the death of an employee through the negligent employment of an incompetent locomotive engineer, there was no evidence of the engineer’s incompetency aside from the single act of negligence of his causing the death, and it did not appear that his conduct and appearance as a witness before the jury were such as to justify such inference. Meld, that the company could not be said to have been negligent in employing the engineer in that capacity, and that a verdict was properly directed for the defendant.</p> <p>The rules of the company provided, that in the night, at which time the accident occurred, the signal for starting trains was to be made by a peculiar motion of a lantern. Tliis signal was not given at the time of the accident; but the engineer hearing an oral order to “ go ahead,” and incorrectly supposing that the order was intended for him, started his engine, causing the death. Meld, that there was no evidence that the absence of proper rules caused the accident.</p>

<p>Master and Servant — Employers’ Liability Act—Superintendence — Risk of Employment — Evidence of Due Care — General Repute.</p> <p>A quarryman, in general charge of a quarry, finding that the wadding still remained in a hole which he had assisted in drilling and in loading with powder, and had attempted to discharge, negligently assumed that the charge had exploded and passed off through another hole by a connecting crevice in the rock, and, deciding to drill out the wadding, directed a fellow workman to hold the drill while he did the striking, whereupon the charge exploded, injuring such workman. Held, that the risk of such an explosion was not one of those assumed by the workman, and that their common employer would be liable to him under the employers’ liability act (St. 1887, c. 270, § 1, cl. 2) for the quarry-man’s negligence.</p> <p>Evidence of the workman’s belief that there was no danger, after the quarryman assured him that there was none, was held to be competent on the question whether he was in the exercise of due care.</p> <p>The general reputation of such a quarryman as a careful workman, who was admitted to be entirely competent, was held to be clearly inadmissible.</p>

Petition to the Superior Court for a jury to assess the petitioner’s damages for the taking of land in Boston for Franklin Park. Trial before Thompson, J., who allowed a bill of exceptions, in substance as follows. The land in question contained about 606,815 square feet, and was situated upon the northwesterly side of Canterbury Street, which forms a portion of the southeasterly boundary of the park, and was taken by the city for park purposes on April 29,1884.

Contract upon a policy of insurance, dated March 5, 1888, against perils of the seas, whereby the defendant insured the plaintiffs for $3,100, on “fertilizer on board schooner Luta Price at and from Boston to St. Andrews, N. B., free of partial loss.” Trial in the Superior Court, before Staples, J., who reported the case for the determination of this court, which report, so far as material to the point decided, was as follows.

Bill in EQUITY, filed February 25, 1889, by tbe owner of a lot of land on Tremont Street in Boston, on wbicb was a brick dwelling-bouse covering its entire width, against tbe owner of tbe lot adjoining, on wbicb was a like bouse similarly built, to compel tbe removal of an addition built upon tbe wall separating tbe two bouses, so far as sucb addition rested upon tbe portion or balf of tbe wall wbicb was on tbe plaintiff’s side of tbe division line of the estates.

<p>Equity — Bill of Interpleader--Title of Plaintiff.</p> <p>A bill of interpleader alleged that the plaintiff was the treasurer of a corporation organized over thirty years before, to manage and control lands owned by the corporators in severalty; that it had sold and conveyed the lands, and in payment thereof certain bonds “ came into the hands of this plaintiff ”; that a part of these bonds were divided among the corporators in proportion to their former ownership; that a creditor of the corporation was seeking to reach the bonds remaining in the plaintiff’s hands in payment of his claim; and that certain of the corporators had also demanded them in behalf of all, on the ground that, as they had never formally conveyed the lands to the corporation, the bonds were their undivided property. Held, that these allegations did not show that the plaintiff’s title to the bonds was of such a character as to enable him to maintain the bill.</p>

<p>Appeal from a decree of the Probate Court, disallowing in part the account of William A. Dickinson as trustee under a deed of trust. Hearing before 0. Allen, J., who reported the case for the determination of the full court, in substance as follows.</p> <p>On July 28,1881, one Boltwood executed a deed of trust conveying certain real and personal property, which was to be kept safely invested, the income thereof to be paid to certain persons during life, and the principal to be distributed in a manner provided upon the decease of all such persons. On February 5, 1878, the trustee named in the deed of trust died, and on October 7, 1879, Dickinson was appointed his successor. The first account filed by Dickinson, which was allowed on May 3, 1887, disclosed a principal fund amounting to $16,260.05, and contained a list of investments made by him. This account recited that Dickinson on May 9, 1881, bought thirty shares of the Union Pacific Railroad Company of a par value of $100 each at $119 each, the cost amounting, with commissions, to $3,573.75; and that on August 16, 1881, he bought twenty shares more of the same stock at $123 each, which, with commissions, cost him $2,475. These two items were contained in the second or final account presented by Dickinson to the Probate Court, and on July 23, 1888, a decree was entered therein disallowing them. The time has now come for a final distribution of the trust fund, and the sole controversy in the case is whether a loss arising from a diminished value of the above shares shall in whole or in part be borne by the trustee personally.</p> <p>. The evidence which was appended to the report tended to show that conservative trustees were in the habit of investing only about one third of a trust fund in fluctuating securities, which were defined as covering all kinds of stock, and of placing no more than five per cent of a trust fund in any one of that class of securities; that the appellant before purchasing the shares in question made many inquiries of bankers and others thought by him to be persons of conservative judgment, whose judgment he esteemed better than his own, and was advised by them that the investments were safe and prudent investments for him to make; that he purchased more than double the number of similar shares for himself and a sister, and for a college of which he was the treasurer; and that the life, tenant knew of the investments at the time they were made, and made no objection thereto; The evidence also tended to show that the Union Pacific Railroad, which extended from Council Bluffs, Missouri, to Ogden, Utah, there connected with the Central Pacific Railroad, and was largely dependent upon the latter railroad for through freight and travel; that in 1881 its rail road ran through a mountainous and newly settled country, which was largely unproductive; that the Southern Pacific Railroad had just been completed, and trains had begun to run upon it, and had diverted business from the Central and Union Pacific Railroads; that the Northern Pacific Railroad was in the same year in process of construction; that, to obtain new business, the managers used the money of the company to build other lines of road not provided for by its charter, that the road was built at a larger cost than that of any other railroad ; that the money with which to build it was borrowed at a high rate of interest, and its relations to the United States, to which it was largely indebted, were uncertain; that the capital stock of the company was $150,000,000, and its bonded debt in that year amounted to $92,984,625, of which a large share was due to the United States; and that the managers of the company were in bad odor with the public and the press, and the people of Nebraska and Kansas antagonized it because of its high local rates and the difficulty of adjusting claims against it for damages.</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>Collateral Security — Indorsement for Accommodation — Commissions — Colton Futures — Fraud — Bona Fide Holder for Value — Payment by Check — Interest — Costs — Counsel Fees.</p> <p>A debtor pledged to his creditor as collateral security for his indebtedness his promissory note, indorsed for his accommodation as the creditor knew, and also a draft drawn by the debtor on a person indebted to him, who accepted the draft on account of the debt. The acceptor, when the draft became due, delivered to the pledgee in payment thereof certain securities. Held, that the whole proceeds of these securities must be applied by the pledgee to the payment of the debt of his debtor before property of the accommodation indorser which had come into the pledgee’s hands could be used for that purpose.</p> <p>A trust company taking goods in pledge for advances was, by agreement, to charge stipulated commissions upon sales made by it in case of the pledgor’s default. The pledgor failed, and thereafter without compensation negotiated sales of the goods; but the goods were sold under the supervision of the company’s managing officer, at prices approved by him and paid to it, the bills being rendered in its name. In previous like transactions between them, when the pledgor was solvent, the company had allowed him to sell the goods, and had charged no commissions. Held, that a finding was warranted that the trust company was entitled to commissions on the sales made after the pledgor’s failure.</p> <p>A pledgee of goods from the consignee thereof, who at the latter’s- request pays drafts drawn for advances on the same, -with knowledge that the consignee was not authorized to pledge the goods for any loans beyond the amount of the advances, is not protected by the Pub. Sts. c. 71, § 4.</p> <p>If goods consigned to a commission merchant for sale are pledged by him to a trust company, which pays the consignor’s drafts drawn upon the consignee for advances on the goods, the pledgee, upon the failure of the consignee and a sale of the goods under its supervision, is entitled to the usual charges of commission merchants as against the consignor.</p> <p>A pledgee of cotton from the consignee thereof, who pays advances thereon to the consignor, is not entitled to charge against the latter losses upon sales and purchases on “ futures ” against the cotton which were negotiated by him and the consignee without the consignor’s knowledge and consent.</p> <p>A pledgee of cotton, who, after the pledgor’s failure, with his consent and with that of the indorser of collateral security supplied by him, in order to protect the parties in interest against a decline in the market price of cotton, sells “futures” against the pledge, intending to use the pledge in making deliveries 1 under such sale, and then sells the cotton elsewhere for the purpose of greater profit, and purchases “futures ” against those previously sold, whereby a higher price is obtained for the pledge than was obtainable immediately after the pledgor’s failure, should, if charged with the amount actually received, be also credited with the amount expended in the purchase of “futures.”</p> <p>If chattels are pledged merely to secure a pre-existing debt, the pledgee is not a holder for value.</p> <p>Gbods were sold under an agreement by which the purchaser was not to have possession until he made full payment. Some three weeks after, he made a partial payment of the agreed price, and received possession upon giving his cheek for the balance, having at the time no distinct belief that the check would or would not be paid, and having no reason to believe that it would be paid, but the contrary. His failure occurred before the check was presented in the regular course of business through the clearing-house, and at the time of such presentation the purchaser had already pledged the goods to one of his creditors for a pre-existing debt, without any other consideration. Held, that the seller was entitled, in equity, upon surrendering the check, to have the amount thereof paid to him from the proceeds of the goods realized by the pledgee.</p> <p>Upon a bill in equity to determine the title to goods pledged to secure loans and advances, to which there were different claimants, it appeared that the pledgee, who was a defendant, and an active litigant in the case, had had the use of the money accruing from sales of the goods. He was defeated on some of his claims, and the litigation was in part caused by his misconduct. Held, that he was liable for interest upon the sums due to the different claimants from the dates they became due, and was not entitled to have his costs and counsel fees paid out of the fund.</p>

<p>' Writ oe entry to recover a parcel of land in Wakefield. The tenants Rodney Edmands and Josephine A. Edmands, his wife, severally pleaded nul disseisin. The remaining tenant disclaimed title to the premises. The case was referred to the Superior Court, upon the report of an auditor as an agreed statement of facts, and, after judgment for the tenants, to this court on appeal. The report was in substance as follows.</p> <p>The parcel in question consisted of two and a half acres of land, upon which were two dwelling-houses and a barn. The demandant claimed title under four deeds from the collector of taxes of that town, duly given by him in pursuance of sales of the- land for the non-payment of taxes assessed to Edmands for the years 1873, 1874, 1875, and 1876. Edmands owned the premises from 1854 to 1861; but in March, 1861, a mortgage thereon executed by him was foreclosed, and the premises were duly conveyed to one Strong. The record title to the premises stood in the name of Strong from March, 1861, to March, 1882, and the taxes thereon were assessed to him, and paid by him, for some years prior to 1869. The premises were purchased of Strong about the year 1864, and afterwards, by deed dated March 31, 1869, and delivered about the same time, were conveyed to Mrs. Edmands, but the deed was not recorded until March 1,1882. For some years before March, 1869, and since that time, Edmands and his wife have occupied the premises, using one of the houses for a dwelling and letting the other. They have four children, all of whom are minors and reside with them on the premises. From and after the purchase from Strong, the taxes on the premises were assessed to Edmands, and he paid the same up to and including the year 1872. The taxes were never assessed to Mrs. Edmands, nor was any demand for their payment ever made upon her. The assessors in each year in question posted notices requiring the inhabitants of the town to bring in their polls for assessment, but Mrs. Edmands never requested the assessors to assess them to her, or gave them any notice that she was the owner of the premises. The assessors had the means of knowing in whom the title stood, and might have ascertained that fact by inquiring of Strong.</p> <p>The collector in each of these years sold the whole of the premises upon due proceedings had by him, and duly filed and' recorded in the registry of deeds the affidavit of the posting and publishing of the notices of the sale by one Eaton, who acted as the collector’s attorney in all matters pertaining to the sales; and the notices were in fact given as stated in each affidavit, and the auditor found that Eaton was a disinterested person at the time he made each affidavit.</p> <p>The premises were crossed by a private way, and could have been conveniently divided for the purposes of sale. Either dwelling-house or a part of the land could have been sold in either year for an amount sufficient to discharge the taxes, interest, and charges, but the collector each year sold the whole of the premises, stating in each deed that it was his opinion that the “ land could not be conveniently divided, and a part thereof set off, without injury to the residue, and judging it to be most for the public intei-est to sell the whole of said land.”</p> <p>The town had purchased a piece of land containing about five acres, to enlarge a park of which it became the owner before 1878, and in each of the years in question there was included in the annual appropriation of the town a sum to pay the interest on the debt incurred by the town in making this purchase, and this sum was included in the warrant for the collection of the taxes of each year.</p> <p>The collector each year announced to those persons at the sale that he hoped no person would bid a larger amount for the property than the amount or the taxes, interest, and intervening charges, on account of the inconvenience of disposing of the surplus; but there was no refusal to entertain bids made at the sales.</p> <p>The case was argued at the bar in January, 1890, and after-wards was submitted on the briefs to all the judges.</p>

<p>Bill in equity for instructions, alleging that William Wheelwright, late of Newbury port, deceased, by dee<j[ executed in this Commonwealth on March 31, 1858, transferred to the plaintiff as trustee, describing him as “ of Boston,” certain shares in the stock of the Copiapo and Caldera Railroad in South America, on certain trusts set forth in the deed, the first article of which was as follows:</p> <p>“ Fifty shares of the above named railroad stock, or the proceeds thereof in other investments in case they shall be sold, the said Codman shall hold in trust for the benefit of my wife, Martha Gerrish Wheelwright, during her life, paying over to her from time to time the net income thereof upon any order or receipt signed by her. At the decease of the said Martha G. Wheelwright, the said trustee shall continue to hold the said property now represented by said fifty shares of railroad stock for the benefit of my children William Wheelwright, Jr., and Maria Augusta Wheelwright, paying over the net income thereof to them in equal shares upon their several orders or receipts. And when, after the decease of my said wife, my son, the said William Wheelwright, Jr., shall have attained the age of twenty-five years, or if he shall sooner die, then at the time he would have attained such age had he lived the said trustee shall divide the whole principal sum then in his hands,, now represented by said fifty shares of railroad stock, and. all accumulation thereof, into two equal parts or portions, and he shall convey, transfer, and deliver one of the said parts or portions to the said William Wheelwright, Jr., or, in case of his decease, to his heirs at law, as and for his or their absolute property, and the other of said parts or portions the said trustee shall convey, transfer, and deliver to the said Maria Augusta Wheelwright, free from the control of any husband, or, in case of her decease, to her heirs at law, as and for her or their absolute property. And in case either or both of my said children shall decease prior to their mother, their respective shares of said property shall be conveyed, transferred, and delivered to his or her or their respective heirs at law, in the same manner as if he or she or they had deceased subsequently to my said wife.”</p> <p>The eleventh article provided that, “If the said trustee shall decease before the aforementioned trusts or any of them shall have expired, a new trustee or trustees may be appointed in his stead, upon application of the parties or party interested to the judge of probate or to the Justices of the Supreme Judicial Court, or any of them, for the county of Suffolk,” whereupon the trust property was to be transferred to the new trustee or trustees.</p> <p>The bill further alleged, among other things, that the plaintiff accepted the trust; that William Wheelwright, Jr., referred to in the said deed, died in England, intestate, on October 18,1862, unmarried, and before reaching the age of twenty-five years ; that his domicil was at all times in the Commonwealth of Massachusetts ; that William Wheelwright, the grantor in the said deed, died on September 26, 1873 ; that the defendant Robert Codman, Jr. was duly appointed administrator with the will annexed of his estate on December 3, 1888; that the said Maria Augusta Wheelwright, referred to in the said deed, married the defendant Paul Krell, and died domiciled in England, without children, on February 9, 1886 ; that the said Krell is her executor and residuary legatee; that the residue of the said Maria’s property given to the said Krell as aforesaid included real estate in Massachusetts amounting to over ten thousand dollars ; that the said Martha G. Wheelwright, referred to in the said deed, died at Newburyport on August 30, 1888; that the plaintiff was duly appointed executor of her will; and that the defendants Isaac W. Wheelwright, brother of William Wheelwright, senior, Jane Caldwell, sister of William Wheelwright, senior, Catherine M. Atkinson and Harriet H. Barton, sisters of Martha G. Wheelwright, are the persons who would have been the next of kin of William Wheelwright, Jr., if he had survived, his mother and then immediately died, and that the same persons would have been the next of kin of Mrs. Krell if she had survived her mother and then immediately died.</p> <p>The case was heard upon the bill and answers, by Devens, J., and reserved by him for the consideration of the full court.</p>

<p>Taxes — Assessment to Heirs or Devisees — Laches.</p> <p>If a testator’s real estate has duly vested in his devisees, who are not his heirs, by the probate and allowance of his will, taxes thereon are not lawfully assessable to the heirs of the testator under the Pub. Sts. c. 11, § 18, which provide for such assessment to the heirs or devisees of a deceased person, until notice is given of the division of the estate and of their several names; and sales thereafter of such real estate for the non-payment of taxes assessed to such heirs are invalid.</p> <p>Laches is not a defence to a bill in equity to annul a collector’s deed of land sold for the non-payment of taxes as being a cloud upon the plaintiff’s title, although title to the land acquired by adverse possession would be a defence.</p>

<p>Insolvent Debtor—Preference — Sale of Claim to Non-resident — Proof of Claim — Application to this Court.</p> <p>If a resident creditor pending an action on his claim in another State against his debtor, who also resides here, sells the claim to a non-resident, both seller and purchaser knowing that the debtor is then insolvent in fact, and that the sale is made to obtain a preference, the debtor’s assignee in insolvency afterwards appointed cannot recover of the creditor the proceeds of the sale; and an agreement of the creditor, made with the purchaser at the time of the sale, to pay the expense of collecting the claim and to make up any deficit therein, is collateral merely, and does not affect the purchaser’s title to the claim, or his absolute right to control and prosecute the pending action.</p> <p>A claim against an estate in insolvency and the terms upon which it may be proved must be passed upon by the Court of Insolvency before the supervisory jurisdiction of this court conferred by the Pub. Sts. c. 157, § 15, can be invoked.</p>

<p>Bill in equity to prevent the removal of a building alleged to be personal property. The case was heard upon the pleadings and an agreed statement of facts, by Field, J., and was as follows.</p> <p>The land upon which the building stood formerly belonged to one Bryan, and was mortgaged by him to one Fitzgerald. Subsequently the defendant Hayes, the owner of the building, moved it upon the land under an agreement made with Bryan that the building should be and remain personal property, and be removable. The building was twenty-two feet wide and thirty-two feet long, built of wood, with one story and an attic, the lower part being fitted for a store and the upper for a tenement. It stood upon posts sunk in the ground, without underpinning, the space between the house and the ground being boarded in; and a brick chimney within the building rested on the ground. The defendant Hayes sold the building as personal property to the defendant Russell, with whom Bryan also agreed, before the foreclosure of the mortgage, that the building should be and remain personal property. The mortgage was duly foreclosed and the land sold, under a power contained therein, to the plaintiff, who was notified at the time of Russell’s claim of ownership to the building. Subsequently, Russell sold the building to the defendant James Commons, with whom Bryan also agreed that the building should remain personal property and be removable. James Commons employed the defendant Finn to remove the building, and he began to remove the same before the bringing of the bill.</p> <p>The judge ruled, that, although the plaintiff took title with knowledge of Russell’s claim, yet, as it did not appear that the mortgagee ever agreed that the building should be personal property, it became a part of the land covered by the mortgage, and ordered a perpetual injunction to issue against the defendant James Commons, and, at his request, reported the case for the consideration of the full court.</p>

<p>High Seas—Tide Waters — Menhaden Fishery—Jurisdiction of State — Bays — Constitutional Law.</p> <p>The territorial jurisdiction of a nation over the adjacent seas, subject to the common right of navigation, extends by the law of nations to the distance of one marine league at least from the shore, and to bays wholly within the territory of the nation, which do not exceed in width two marine leagues at the mouth; and within this jurisdiction is the right of control over fisheries in such waters, whether the fish are migratory and free-swimming, or free-moving, or attached to or imbedded in the soil.</p> <p>The St. of 1886, c. 192, regulating the taking of fish with nets and seines in Buzzard’s Bay, a bay less than two marine leagues in width at its mouth, and wholly •within the territorial limits and jurisdiction of this State, is not repugnant to the Federal Constitution, and, in the absence of any treaty or legislation by the United States on the subject, is binding upon citizens of other States, and on fishing vessels enrolled and licensed under the laws of the United States.</p> <p>The St. of 1865, c. 212, so far as it relates to the taking of menhaden by the use of the purse seine in the waters of Buzzard’s Bay, is repealed by implication by the St. of 1886, c. 192.</p>

<p>Insolvent Debtor — Fraudulent Mortgage — Reasonable Cause to believe — Agent.</p> <p>A married woman in business, relying upon the promise of a loan to be paid her in instalments and secured by her mortgage, enlarged her business, thereby suspending the ordinary course thereof for a time, during which she contracted debts beyond her ability to pay, for the alterations and for new stock bought by her husband as her business agent Five days before going into insolvency, upon receiving the balance of the loan, she executed a mortgage of all her property to the lender, who then knew that she was insolvent in fact, but believed that the business had been successful, that the debts were incurred in enlarging it, and that she would be able to continue it with the aid of the loan. Interest at fifteen per cent was to be paid on the loan, the husband, who intended that she should go into insolvency when the mortgage was given, agreeing to pay the excess above the legal rate. Held, in an action brought by her assignee in insolvency against the mortgagee to recover the mortgaged property, that there was no rule of law which required a finding that the defendant had reasonable cause to believe that the mortgage was made in fraud of the insolvent laws.</p>

<p>Public Charity—Compromise of Bequest to Town—Parties — Attorney General.</p> <p>On a bill in equity, under the Pub. Sts c. 142, §§ 14-17, to establish a compromise of a charitable devise for the benefit of a town, the Attorney General alone can represent those beneficially interested; and inhabitants of the town, with no peculiar or immediate interests therein distinct from those of the public, cannot intervene by petition to oppose the compromise, or appeal from a decree settling the terms thereof.</p>

<p>Real Action — Death of Demandant — Recovery of Rents and Profits hy Administrator.</p> <p>The administrator of a deceased demandant in a writ of entry, who has not obtained a license to sell real estate, cannot appear and prosecute the action for the sole purpose of recovering the rents and profits of the demanded premises received by the tenant during the demandant's lifetime.</p>

<p>Action upon Judgment— Set-off.</p> <p>In an action upon a judgment obtained upon a promissory note and an account annexed, the defendant may plead in set-off independent claims accruing before the date of the writ in the original action, which were neither pleaded therein nor credited in the account.</p>

<p>Fire Insurance — Preliminary Proofs of Loss — Waiver.</p> <p>An insurance adjuster, who was furnished by a company employing him with blank forms for statements of losses, was directed to ascertain a loss under a policy in the form prescribed by the Pub. Sts. c. 119, § 139, (St. 1887, c. 214, § 60,) and to report to the company. At an interview with the insured, the adjuster, having then no blanks with him, wrote out an informal statement of the loss, and agreed to take it to the home office and shortly to return to the insured formal proofs for execution. He reported to the company, but failed to return the proofs, and the insured several weeks later caused a letter of inquiry to be sent to the company, to which it made reply, placing its refusal to pay on some alleged misconduct of the insured, and not upon any deficiency in the preliminary proofs. Held, in an action on the policy, that a finding was warranted that the company had waived a strict compliance with the condition requiring a formal statement of the loss to be made by the insured forthwith.</p>

<p>Tort for injuries to the plaintiff’s person and to his horse, wagon, and harness, caused by an alleged defect, consisting of a post standing within the limits of a sidewalk in River Street, in Northampton. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Contract on a judgment. The bill of exceptions and a copy of the pleadings and docket entries showed the following facts.</p> <p>The action was brought to recover the amount of a judgment obtained by the plaintiffs against the defendant in another State. The writ, which described both the plaintiff and the defendant as residents of that State, was made returnable in the Superior Court for Hampden County, and, after an attachment of property belonging to the defendant situate in that county was made thereon, was there entered in April, 1889. In May, 1889, before service on the defendant or any appearance on his behalf, the plaintiffs filed a motion, reciting that the defendant at the date of the writ was a resident of Boston in this Commonwealth, and praying that the action be removed to the county of Suffolk. This motion was granted, and the removal ordered. An order of notice for personal service upon the defendant was afterwards issued by the Superior Court in Suffolk County, and such ser- ’ vice was duly made upon the defendant. In June, 1889, a general appearance and an answer to the merits were filed in that county on behalf of the defendant. Subsequently, no amendment of the writ having been made, a motion was filed on behalf of the defendant in Suffolk County, alleging that the “ action was upon the writ rightfully brought in the Superior Court held within and for the county of Hampden and Commonwealth of Massachusetts, and was wrongfully removed to the Superior Court held within and for the county of Suffolk,” and praying that “ the same be dismissed from this court held in the county of Suffolk, and that the papers therein be returned to the Superior Court held within and for the county of Hampden aforesaid, the court in this county having no jurisdiction thereof.” The plaintiffs consented to the granting of this motion, and it was allowed. The papers in the action were returned to the clerk of the Superior Court for Hampden County, and at the March sitting in that county, which began on March 10, 1889, the case was placed on the trial list at the request of the plaintiffs. On March 12,1889, no appearance having been made for the defendant in Hampden County and no order of notice having been issued, the attorneys for the defendant, who appeared and answered on his behalf in the county of Suffolk, filed a paper with the clerk in Hampden County disclaiming all appearance and all authority to appear in that county in the defendant’s behalf. Afterwards an attorney appeared specially for the defendant, and filed a motion to strike the case from the trial list, and another motion to dismiss the action. Barker, J. ruled that the case was properly on the trial list, and overruled both nibtions, and the defendant excepted. The defendant was defaulted, and afterwards, on April 11, 1889, filed a motion in arrest of judgment for want of jurisdiction. The judge overruled this motion also; and the defendant alleged exceptions.</p>

<p>Contract, to recover $500 on a certificate of membership in the defendant company, issued to John O. McCoy, for the benefit of his daughter, Hannah McCoy. Trial in the Superior Court, without a jury, before Barker, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The defendant company was organized on May 10, 1877, under.the name of the Roman Catholic Mutual Insurance Company of the Diocese of Springfield, “ for the purpose of rendering pecuniary aid to the families of deceased members, or to their heirs.” The by-laws adopted by the company contained the following provisions which alone are material.</p> <p>Art. II. § 1: “ Any male Roman Catholic, between the ages of twenty and fifty-one years, residing in the diocese, may become a member of this corporation by paying the required fee and making application in form prescribed.” Art. III. § 6: “ The board of directors shall consist of not more than seventy-five members, and shall have at least three members from each parish. The board shall have supervision of the affairs of the corporation; they may make any laws for their guidance not inconsistent with these by-laws. The president of the corporation shall be a member of and president of the board. The directors in each parish shall receive and decide all applications for membership in their parish; their action shall be governed solely by the rules of the corporation; they shall forward all applications presented to them to the secretary. Seven directors shall constitute a quorum.” Art. XI. § 1: “ The membership of this corporation is limited to one thousand.”</p> <p>John O. McCoy was a Roman Catholic, and a member of the parish of St. Jerome in the above named diocese, in which parish the company had a membership and the requisite number of resident directors. On July 13, 1884, being then more than fifty-one years of age, he duly applied to the company for membership, his application describing him as “ being now about forty-nine years of age,” and reciting his agreement to conform to the by-laws and other regulations of the company. An indorsement upon the application, signed by three of the directors of the company residing in the parish, was as follows: “ We have examined the above application. We know the applicant, and consider him eligible to membership.” A certificate of membership was then issued to him, and thereafter notices were sent to him of the assessments laid by the company, and all such assessments were paid on his behalf until his death, in June, 1889. As early as September, 1887, John J. McCoy, a son of John O. McCoy, with whom he was then living, ascertained from his father’s papers that he was, when he received the certificate from the company, more than fifty-one years of age, and he thereupon wrote a letter to one Geran, a director of the company residing in the parish, through whom the notices had been received, and to whom the assessments had been paid up to that time, stating that his father was above the age required by the by-laws, and asking in substance what should be done to make it right with the company. Geran replied that the by-laws did not apply to the father, because he joined the company before they were adopted, and that it was all right.</p> <p>When the original agreement for the formation of the company was made, there were included among the subscribers to that agreement men who were over fifty-one years of age; but no persons were admitted after the original members except under the by-laws, and upon an application stating that they were under that age. At the time Geran wrote to the son as above, he supposed that the father was one of the original members, received before the by-laws were adopted; but Geran had access to the books and papers of the company, an inspection of which would have shown him the contrary. In reliance upon the assurance of Geran, the subsequent assessments were paid, and nothing was done beyond paying assessments until after John O. McCoy died. When he joined the company, the directors who approved his application either knew or had good reason to know that he was then at least sixty years old. The vice-president of the company was acquainted with him, knew that he was a member and was over age, and took no steps to terminate his membership. No officers of the association other than those already named had any knowledge that he was over age when he joined the company. There was no action taken by the company with reference to his membership, except the receipt of the application for membership fee and the issuing of the certificate, the sending out of notices of assessments, and the receiving of payments and the making of receipts for them. At the time of his death there were four hundred members of the society. After his death, application was made for payment, but was refused because he was over age, the refusal being accompanied with an offer to repay to the parties interested all the assessments which he had paid and his membership fee, being all the money that had been paid in to the company by him.</p> <p>Upon the above facts the judge found for "the plaintiff, and assessed her damages in the sum of $412. If the finding was correct, judgment-was to be entered thereon; otherwise judgment was to be entered for the defendant, or as law and justice might -require.</p>

<p>Indictment in two counts, the first alleging that the defendant at Worcester, from May 2, 1890, to August 11, 1890, “did assist in keeping and maintaining a certain tenement and place there situate then and at the times aforesaid, and there used by the Warren Club for the purpose of illegal selling, distributing, and dispensing of intoxicating liquors, said tenement and place so used as aforesaid being then and at the times aforesaid and there a common nuisance”; the second alleging that the defendant at the same time and place “did keep and maintain a certain common nuisance, to wit, a tenement in said Worcester, then and on said other days and times there used for the illegal sale and illegal keeping for sale of intoxicating liquors.”</p> <p>In the Superior Court, before the jury were impanelled, the defendant moved to quash the indictment, on the ground that two counts, describing different offences depending upon the same facts, were set forth therein; and that it did not contain an averment that the different counts were different descriptions of the same acts. Dunbar, J. overruled the motion; and the defendant excepted.</p> <p>At the trial, the government introduced the testimony of police officers, which tended to prove the following facts. On August 2, 1890, the officers visited the premises in question, and opposition was made to their entering, whereupon they forced their way in. The defendant was found upon the premises in his shirt sleeves, and wearing an apron. He was asked who ran the place, and answered that he ran it. The premises consisted of two rooms, a front room twenty-five feet by twenty, and a rear room about ten feet by fifteen. There were six or eight windows in the front room, and one in the rear room, all of which had heavy curtains. The front room contained seven small tables, arranged around the room against the walls, and sixteen chairs. Twelve men were sitting at the tables, and four of them were drinking lager beer, with bottles and glasses in front of them on the tables. Some of these men who were at a table with bottles upon it, including one Powers and one Davenport, were drinking from bottles with labels upon them bearing names different from their own. In the rear room a table was found on which was a paper bag with five or six pounds of sugar, a sugar-bowl half filled, a plate with slices of lemon, a, shaker, a scallop for straining, spoons, sixteen beer glasses, and twenty-five whiskey glasses. Under the table were a tub with clean water, such as is used at bars for rinsing glasses, and two slop-pails with water and lemon peel in them. At one end of this room was a refrigerator, with a large quantity of lager beer in bottles and several bottles of whiskey in it, lying on the ice. There were twenty-five cupboards or lockers, bearing forty-two names, fitted with doors and locks, and upon a key-board were keys for the locks. One third of the lockers were empty and the rest had in them bottles of whiskey and bottles of lager beer. In one of the lockers, marked H. Kiehl, were found two quarts of corks, a bottle of whiskey, and eight dollars in money; also other bottles marked with the names of other persons. There were eight lager beer cases containing full and empty bottles. All these bottles had on them labels bearing the name of some person, different names being upon the different bottles. The defendant was asked for a list of the members of the club, and a book produced by him bore the name neither of Powers nor of Davenport. In answer to an inquiry as to the name of the club, the defendant replied that it was the Warren Social Club. On August 5, 1890, the premises were again visited, and substantially the same condition of things found. The defendant was there, and fourteen lager beer cases and sixty bottles of lager beer were found in the refrigerator. Fourteen of these bottles of lager beer were marked with one man’s name, and twelve with another. In Kiehl’s locker were found about seventy-five keys that fitted the door to the room. On August 8, 1890, the premises were again visited, and the defendant and Kiehl found handling eleven cases of lager beer which were marked with the same name, and was told that they had just been brought in. In a closet were found seven cases of empty lager beer bottles, and a gallon jug containing whiskey, marked “Warren Club, Worcester.” Each case had a tag on its side marked with a name and addressed to “Warren Club, Worcester.” On this occasion one of the officers said to the defendant, “ I can’t find Powers or Davenport in here,” referring to the list of members, and the defendant made no reply. A tag taken from a jug in the rooms containing whiskey bore the words, “ For the Warren Club, Worcester, Mass.”</p> <p>The defendant put in evidence the certificate of incorporation of the Warren Social Club, dated July 22, 1890, for the encouragement of athletic exercises and the improvement of its members by literary and musical exercises and social gatherings. The defendant testified that he was employed by the club, on July 27, 1890, as steward of the Warren Social Club; that his duties were to care for the place, and wait upon the members of the club; that he took from the members written orders, each signed by the member giving it upon a wholesale liquor dealer, accompanied with the money, and carried both money and order to the dealer’s agent; that one expressman brought the liquor named in the order to the rooms of the club, marked with the name of the member ordering it, and he thereupon put it in the locker of such member; that he had nothing more to do with the liquors, and that the members of the club took them from their lockers as they wanted them, and drank them usually in the front room at the tables; and that he was a member of the club, and did not know the names of all the members. Upon cross-examination, he testified that his wages were fifteen dollars per week; that he did not now know how many cases of beer were ordered before or at about the time of the several visits of the police officers, or the names of the members ordering them; that he supposed the club bought the lemons and sugar, but he did not buy them; that sometimes two members joined in an order for a case of beer; and that it was not a part of his duty to keep the lockers locked. There was evidence tending to show that there were no musical instruments in the rooms, and no books or any kind of literature except two or three newspapers.</p> <p>A paper found in an unlocked locker, on one of the occasions above referred to, which was a printed form of receipt for “ initiation fee ” and “ monthly dues ” to the Warren Club, and a book also found on the top of a locker, in plain sight, projecting over and beyond the top, containing memoranda of purchases of ice, sugar, and lemons, and of express charges on liquors paid by the Warren Club, averaging over ten dollars per day, were admitted in evidence, against the defendant’s objection; and the defendant excepted.</p> <p>The government contended that the club which actually kept the place and used it as charged in the indictment was the Warren Club ; that the Warren Social Club was a sham and a fraud, and did not keep and use the place; and that it appeared by the evidence that it was the Warren Club which actually did so.</p> <p>The defendant asked the judge to give the following instructions, among others: “ 1. That the first count of the indictment cannot be maintained by reason of a variance between the allegation and the proof of the name of the club. 2. That there is no evidence that would warrant a conviction under the second count. ... 5. That in order to a conviction under the first count it must appear that the sole purpose of the Warren Club was the sale, distribution, or dispensation of liquors to its members or others.”</p> <p>The judge refused to give these instructions, and instructed the jury, upon the subject matter embraced in the first count, that it was in controversy whether the Warren Club or the Warren Social Club kept and used the place; that the name of the club must be proved as alleged; that the defendant would be entitled to a verdict of not guilty by reason of a variance, if the name of the club were not so proved; that there was evidence which, as the government claimed, and the defendant denied, established the fact that there was a Warren Club, and that it kept and used the place as charged in the indictment, and that the Warren Social Club was a mere sham and fraud, and did not keep and use the place; and that this claim of the Commonwealth must be proved beyond a reasonable doubt, and if so proved, this branch of the case was established.</p> <p>The jury returned a verdict of guilty on the first count and of not guilty on the second count; and the defendant alleged exceptions.</p>

Indictment in two counts, the first alleging that the defendant, at Worcester, “did assist in keeping and maintaining a certain tenement and place there situate then and at the times aforesaid, and there used by the Pelican Club for the purpose of illegal selling, distributing, and disposing of intoxicating liquors,” from May 2, 1890, to August 11, 1890 ; and the second, that the defendant, at the same time and place, did keep and maintain a common nuisance, to wit, a…

<p>Contract, brought by the administrator of the estate of Eugene Sullivan, to recover $5,000 on a certificate of membership in the defendant association, issued to Sullivan for the benefit of his daughters, Tamzina and Maria. Trial in the Superior Court, before Staples, J., who, after a verdict for the plaintiff, reported the case for the determination of this court. The facts, so far as material to the points decided, appear in the opinion.</p> <p>The case was argued at the bar in January, 1890, and after-wards was submitted on the briefs to all the judges.</p>

<p>Tout for personal injuries caused by tbe plaintiff’s being run over by a vehicle in B Street in that part of Boston called South. Boston. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p> <p>The case was argued at the bar in March, 1890, and after-wards was submitted on the briefs to all the judges, except Morton, J.</p>

<p>Six actions oe tort. The first five cases, in which the writs were dated in May, July, and December, 1887, were for passing and repassing over the plaintiff’s close, and the sixth was for an assault and battery. The cases were tried together in the Superior Court, before Hammond, J., who allowed a bill of exceptions, which, so far as material to the points decided, is as follows.</p> <p>The close, of which the plaintiff Mrs. Weld was the owner, was situated in that part of Boston which was formerly West Roxbury, between the Boston and Providence Railroad, which at that place runs nearly north and south, on the west, and Bourne Street on the east; and was intersected by Hyde Park Avenue, a street running parallel with the railroad, and by Stony Brook. The question at the trial was whether a way over the land of Mrs. Weld, along which the defendants passed, was at the time of the alleged trespasses, as contended by all the defendants, a public way by prescription, or whether it was, as claimed by all of them save Brooks, a private way appurtenant to an estate on Bourne Street belonging to Meyer. This way ran from Bourne Street in a southwesterly direction diagonally over the close of Mrs. Weld, crossing Stony Brook by a bridge and the railroad, to a station on the latter called Mount Hope, and thence beyond the railroad to Roslindale, or to Taft’s tavern in Roslindale. That part of the close which lay to the east of Hyde Park Avenue, as well as a portion of that lying between the avenue and the railroad, was originally part of a larger tract. This tract belonged to Ebenezer Weld, from a period earlier than 1827 np to 1858, with the exception after 1834 of the strip then taken for the railroad location. After his death in 1858, this tract was divided among his children, and his son, John Weld, became the owner of the portions of the close above referred to, and upon his death in August, 1886, devised it with the rest of the close to his wife, the plaintiff, Sybil W. Weld.</p> <p>The evidence was conflicting as to the character of the way above described, and the nature and extent of the travel over it, and also as to its location over the close in question before 1862. The defendants’ evidence, which was contradicted, tended to show a use of this way, which was opened by sons of Ebenezer Weld as a private way, for over twenty years as a public way, adversely and under a claim of right, by people on foot and in carriages, in going to and from the railroad, and otherwise. A portion of the close of Mrs. Weld, lying between Hyde Park Avenue and the railroad, other than that derived from Ebenezer Weld, was conveyed to John Weld on July 16, 1868, by John M. Mayo, to whom it had been conveyed under a like description by Nathaniel Wheeler, by a deed dated December 1, 1846. Both these deeds referred to rights of way through and over the land in question which were granted by Ebenezer Weld in' 1796, and the deed of Wheeler to Mayo also referred to the land conveyed as being “ laid down on said Whitney’s plan, dated 18th October, 1846.” The defendants were permitted to introduce in evidence this deed from Wheeler to Mayo; and no exception was taken by the plaintiffs to its admission. The defendants thereupon offered a plan made by Charles Whitney, dated October 18,1846, and never recorded, as evidence of the existence and location of the way as claimed by them. Upon this plan,' which was identified by a witness as made by Whitney, and as that referred to in the deed of Wheeler to Mayo, was delineated a way over the land in question where the defendants claimed the way used by them existed. This plan, against the plaintiffs’ objection, was admitted in evidence ; and the plaintiffs excepted.</p> <p>The defendants produced an attested copy of a deed, dated September 25,1860, from John M. Mayo to Charles H. Mayo, both of whom were dead, the description in which was of land shown “on a plan made by C. F. Sleeper and recorded with Norfolk County deeds,” and “bounded northerly by a street leading from Bourne Street to and across the Providence Railroad, on land now or late of Ebenezer Weld.” The land referred to as belonging to Ebenezer Weld formed a part of the close of Mrs. Weld, and was the same as that described in one of her writs, being that portion which lay to the east of Hyde Park Avenue. The defendants also produced an attested copy of Sleeper’s plan, which showed the way described in the deed as “ a street leading from Bourne Street to and across the Providence Bailroad ” as wholly upon this portion of her land, and also showed a part of her land which lay between the avenue and the railroad. The defendants were permitted, against the plaintiffs’ objection, to introduce these copies of the deed and plan in evidence; and the plaintiffs excepted.</p> <p>The plaintiffs’ evidence, which was contradicted, tended to show that in or before 1852, and since that time, there was a fence on each side of the railroad across the way, put up by the railroad company, which fences prevented the crossing of the railroad at that point either on foot or in carriages; and that persons thereafter crossed the railroad, if at all, by climbing the fences, or by going through a small opening left in each fence, or by walking or driving around the ends of the fences through the fields and across the railroad.</p> <p>There was evidence tending to show that, in 1867 or 1868, John Weld, then owning the close in question, sold the right to remove a large quantity of sand and gravel from the land east of Hyde Park Avenue; that for this purpose a steam shovel was put on the land, and a side railroad track was laid on ties on the land and across this way, and trains of cars were run back and forth over the track night and day for one or two seasons, carrying away the sand and gravel. The plaintiffs contended, and introduced evidence tending to show, that in removing the sand and gravel the strip of land over which this way ran was excavated to the depth of three or four feet below the surface of the railroad, and back from the railroad towards Hyde Park Avenue some thirty to fifty feet; that, as the excavation extended back from the railroad into a hill, said side track was moved towards Hyde Park Avenue; that the excavation and the passing of the trains of cars loaded with gravel interrupted the free and usual use of the way, preventing teams from crossing, and requiring foot travellers to pass over wherever and as best they could; and that after this work was done, the way, or the place where it ran, was left rough and uneven, and was never repaired or put in order for travel. The defendants contended, and introduced evidence tending to show, that the surface of the alleged way was not substantially changed by the excavation and branch track; and that the travel on the way was not substantially interrupted by these things.</p> <p>There was evidence tending to show that John Weld, who died in April, 1886, about a year before his death put up a fence on the west side of Hyde Park Avenue across this way.</p> <p>The plaintiffs, among other requests for instructions, asked' the judge to instruct the jury as follows:</p> <p>“ 3. That, in order to establish a public highway by prescription or adverse use, the defendants must prove to the satisfaction of the jury that the public generally used the way, drove over it and went over it adversely under a claim of right, not permissively, uninterruptedly for a period of twenty years consecutively. The use and enjoyment of the way must have been adverse under a claim of right, continuous and uninterrupted for twenty years. The use must not have been in any way permissive.</p> <p>“4. If John Weld, the husband of the plaintiff, or his father, Ebenezer Weld, who owned the land from Bourne Street to the railroad and beyond, laid out, opened, or built this way from Bourne Street to the railroad for their use and convenience, or for the benefit of their lands, and left it open, and if persons who have occasion to go that way or the public generally use Or pass over such way because it is so left open, then all such use by the public generally, or by any persons who have occasion to pass over the same, is not adverse, but permissive, and however long continued will not make it a public way; and the public will acquire no rights as against the owners of the land in such way by such use; such use of a way so left open is considered incident thereto, and not adverse, but permissive.</p> <p>“ 5. The way alleged or claimed by the defendants extends from Bourne Street to Roslindale, or Taft’s tavern in Roslindale. A way in order to be gained by adverse use or prescription must be a definite one, ‘with an a quo and an ad quern’ and must be in a definite line, and must be proved as alleged or laid; and if such alleged way extends across the lands of different owners, it must be proved as alleged. The way being an entirety, an interruption in any part or place in the way is an interruption of the whole.</p> <p>“6. The proved or admitted acts of the railroad company in putting up fences on one side or the other, or both sides, of the railroad and across the alleged way, would be or constitute interruptions of the way, and prevent the alleged use of the way being continuous.</p> <p>“ 7. If the jury are satisfied that in 1867 or 1868, by some agreement or arrangement with or consent of John Weld, the bed or soil of this alleged way on the easterly side of the railroad was dug up or excavated to the depth of three to five feet below the level of the bed of the railroad, in the manner testified to by some of the witnesses, and that railroad tracks were laid upon his land and across this way, and gravel trains run over the same for the time and in the manner testified to by some of the witnesses, these acts would constitute interruptions of the use of the way. Such acts done by the consent of the owner of the soil are inconsistent with the existence of a right of way or use of a way over the place. They are acts of ownership and control over the place where the way is, wholly inconsistent with the existence of a right of way in the public or in individuals.</p> <p>“ 8. If the jury are satisfied that John Weld, who died in April, 1886, in his lifetime put up a fence or barrier across this alleged way on Hyde Park Avenue, such act would constitute an interruption of the use of the way.”</p> <p>The judge, who gave the third instruction requested, but refused to give the fourth, fifth, sixth, and seventh requests, instructed the jury, among other things, as follows: “ When the question comes as to whether the public have acquired a right of way by prescription over land where people have also gone in the. exercise of a private right, you are to take into consideration the general situation of the road, the uses that are made of it, and say whether the use made of it by the public .is merely incidental and insignificant compared with that which is made of it by those who have private rights or otherwise. If it is merely insignificant, incidental to the rights exercised by those having a'private right to go there, you would not be justified in finding that the public by prescription have made a public road of it by so travelling. If, however, the public travel is so far greater than the private travel as to satisfy you that the public travel is the main thing, and not incidental to the private rights, then you may be justified in finding it a public road. . . . The travel must be adverse and under a claim of right. If you find that the landowner knew, or might have known, that the public were so using that road in a manner not incidental merely to the private travel, and he silently acquiesced or made no effort to stop it or interrupt it, you would be justified in finding it was adverse to his rights, notwithstanding the fact that there were private rights also there.” The judge gave the eighth request by adding after the words “Hyde Park Avenue ” the words “so as to prevent travel,” and by adding at the end the words “but does not divest acquired rights acquired by prescription ”; and further instructed the jury in respect to said prayer, that, “ if you are satisfied that Weld put up a barrier at the Hyde Park end of this avenue so that they could not get on to the space between Hyde Park Avenue and the railroad so as to prevent travel there, that would be an interruption.”</p> <p>The judge also instructed the jury: “ The plaintiffs contend that the railroad corporation placed a fence upon the westerly side of the railroad, and that that fence was an interruption so as to prevent the twenty years’ adverse use running. If the fence was an interruption to the travel of the public over this spot where the trouble occurred, you should so consider it. If, however, you find that, notwithstanding that fence was there, still the public used the portion of the road which is in controversy for the purpose of going to the railroad as far as the fence, then, notwithstanding the existence of the fence, you would be justified in finding that the travel to the fence was a part of the continuous travel which the public are obliged to show in order to establish the right of way by prescription. ... If you find it did have the effect of making the public cease to go from Hyde Park Avenue towards the railroad on this street, then the travel is no longer continuous and uninterrupted. So, to a certain extent, of the interruption by the gravel train. ... In the first place, you will have to make up your minds as to what were the physical changes on the surface of the road, to see how far the gravel tracks went below or above the grade of 'the old travelled road; and if, notwithstanding the tracks, carriages arid people did go over as theretofore, and if you find that, notwithstanding the gravel tracks and the running of the trains, there was travel over there as there had been before by the public, then I instruct you that you are justified in finding that the gravel track and the train were no such obstruction to the public travel as would prevent the public from acquiring the right to go over there by prescription. If, however, you find that the gravel track and the running of the trains interfered with that road in such a way as that the public did not go over it as they had theretofore gone,-—did not go over it'at all, — that there was a substantial interruption of the travel, — you will then find that the travel was interrupted, and such an interruption would prevent the acquiring of an easement.” The judge also instructed the jury as to the alleged private right of way over the way in question.</p> <p>The jury returned a verdict for the defendant in each case; and the plaintiffs alleged exceptions.</p>

<p>Riparian Rights — Taking by Eminent Domain — Compensation.</p> <p>Under the St. of 1874, c. 196, authorizing the city of Boston, for the purpose of surface drainage, to remove obstructions in and over Stony Brook, and to alter and deepen its channel, and providing for compensation to any person injured in his property thereby, a mill-owner upon the stream, who for more than twenty years has enjoyed the constant flow of its waters as regulated by natural obstructions in the channel and upon its banks, and by culverts under highways and railroads, is entitled to compensation for a diminution of the flow during certain months of the year caused by removing the obstructions and enlarging the culverts.</p>

<p>Lease— Guaranty of Rent—Discharge by New Contract.</p> <p>A guarantor of the payment of the rent reserved in a lease, containing no renewal or extension clause, “in the manner therein mentioned” during the term and for such further time as the lessee should hold, is discharged, if, without notice to him, the lessee continues in occupation beyond the term as tenant at will, under a new agreement with the lessor made before the term expired, at a rent different for a time, but thereafter at the same rate as that reserved in the lease.</p>

Bill in EQUITY, filed March 10, 1885, for a partnership accounting. The case was reserved, upon the pleadings and a master’s report, by Holmes, J., and was as follows.

<p>Three appeals, consolidated under the St. of 1888, c. 290, § 5, by Frederick W. G. May, guardian and executor of the will of Frederick May, from, decrees of the Probate Court disallowing certain items of his account as guardian. The respondents, Sarah E. Skinner and Kate L. White, were legatees under -the will. After the former decision, reported 149 Mass. 375, a hearing was had before Holmes, J., who reserved the case for the consideration of the full court. The facts, so far as material, appear in the opinion.</p>

<p>Contract, with a count in tort, against a sheriff, to recover for the negligence of his deputy in levying an execution. At the trial in the Superior Court, Dewey, J. ordered the jury to return a verdict for the plaintiff, and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Evidence — Declarations — Res Gestee — Principal and Agent.</p> <p>A conversation offered for the purpose of fixing a date, and otherwise irrelevant, is inadmissible where the offer does not point to anything which tends to fix the time when it occurred.</p> <p>An agent’s inventory of notes received for loans for his principal is inadmissible in the principal’s behalf for the purpose of showing that the notes were made at the times they bore date.</p> <p>If a witness testifies that at a date named he saw certain notes, the existence of which at that time is material, a conversation he then had respecting them is not admissible as part of the res gestee.</p>

<p>Intoxicating Liquors — Common Nuisance — Club.</p> <p>If, in a city which has voted not to grant licenses to sell intoxicating liquors, a club, whether incorporated or not, by its agent uses a place for the purchase and storage of intoxicating liquors for its members, and for dispensing to each member upon his order portions of the liquor belonging to and kept for him, the place is a common nuisance, and such agent may be convicted of maintaining the same, under the St. of 1887, c. 206, which provides that all “places used by clubs for the purpose of selling, distributing, or dispensing intoxicating liquors to their members or others shall be deemed common nuisances.”</p>

Replevin, brought by the administratrix of the estate of Nicholas Kent, in her own name, against a deputy sheriff. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows. The defendant, on July 3,1889, attached and took the property in question upon a writ, as the property of one White.

<p>Contract, brought by the administrator of the estate of Frank W. Wheeler for the benefit of Nelson W. Holden and Horace M. Hedden, upon a policy issued by the defendant upon the life of the intestate. The defendant admitted its liability, and paid the amount of the policy into court, and Hoyt H. Wheeler intervened as claimant of the fund. In the Superior Court, Dunbar, J., who tried the case without a jury, found for the plaintiff; and the claimant alleged exceptions. The facts appear in the opinion.</p>

<p>Water Rights — Easement — Implied Grant.</p> <p>The owners of mill privileges entered into an indenture securing to each privilege an interest in a reservoir as appurtenant to and forever inseparable therefrom, and charging each into whosesoever hands it should pass with a share of maintaining the reservoir. One owner, whose pond as fed by the reservoir was necessary to the successful operation of his mill on its outlet, conveyed the mill lot, describing it by metes and bounds, and excluding the pond and outlet and other land of his beyond the outlet opposite the mill, with the right to draw water from the pond through a six-inch pipe so long as the pond was continued, and to take water from the outlet for mechanical uses. On the same day he leased to his grantee for a term of years all the water of the pond, to be drawn through a flume for manufacturing purposes, at a certain rent, which was paid during the term. The grantor reserved in the deed the right to enter to repair the flume, and to maintain a ram and a pipe upon the premises; and in the lease, the right to take from the pond ice and so much water as would pass through such pipe. Held, that the right to have the pond maintained, and to use the water, did not pass to the grantee as an appurtenance under the deed; and that his title was not enlarged by the indenture to include rights not expressly mentioned in the deed.</p>

Bill in equity, by the residuary legatee under the will of Lucius Woodcock, against Theodore E. Woodcock, the executor of the will of Sarah C. Woodcock, the testator’s surviving wife, and Charles T. Munroe, to recover possession of a watch and chain bequeathed by her to the last named. The Superior Court, in which the bill was filed, ordered a decree for the plaintiff; and the defendant appealed to this court. The facts appear in the opinion.

Tort, for false answers alleged to have been made by the defendant in answer to a trustee process. At the trial in the Superior Court, before Dewey, J., it appeared that Carrie A. Ingalls, on May 29, 1888, made an assignment to the defendant for the benefit of such of her creditors as should “ verbally or in writing assent to this assignment to the amount of their claim.” On May 31, 1888, the plaintiff brought an action against Ingalls, and summoned the defendant as trustee.

<p>Guardian of Insane Person — Rescission of Ward’s Agreement — Equity.</p> <p>A testator’s heirs, including a married daughter, being dissatisfied with his will, which was never probated, signed an agreement for the distribution of the estate. Shares of stock in two corporations put in trust for the benefit of such daughter and her husband during life were, after their death, to go to her children, if any; otherwise, to the testator’s grandchildren. Subsequently, she was put under guardianship as an insane person, and after her husband’s death her guardian brought a bill in equity against the trustee and the corporations to recover the property and annul the trust, on the ground that she was insane when she signed the agreement. She died pending the bill, and neither her ad- • ministrator nor such children or grandchildren were made parties defendant. Held, that the guardian had no title to the property such as enabled him further to prosecute the bill; and that the bill must be dismissed.</p>

<p>Tort, for injuries to the plaintiff’s property caused by the overflow of Spot Pond Brook in Malden. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to prove the following facts. Spot Pond Brook, the outlet of Spot Pond in Stoneham, after its junction with Ell Pond Brook, the outlet of Ell Pond in Melrose, passes under Pleasant Street in Malden by a culvert built by it in 1844, and afterwards empties into tide water in that city. After the St. of 1869, c. 378,* entitled “An Act relating to drainage in the towns of Malden and Melrose,” was duly accepted by those towns, the county commissioners of Middlesex proceeded in 1871 to act under its provisions, and made due return of their doings. This return, which was dated December 21, 1875, recited that a petition was presented to such county commissioners in January, 1871, asking for the “drainage of lands in Malden and Melrose, and removing obstructions in brooks and streams in said towns between Ell Pond in Melrose and Spot Pond in Stoneham to the tide water in Malden”; that the commissioners thereupon ordered that a dam on Spot Pond Brook be removed by an agent appointed for that purpose, and that “ the streams or brooks named in said act of 1869 should be located, and their courses and widths described, and the work of surveying and engineering the same” should be intrusted to the same agent. This agent made a report to the commissioners, reciting that the dam had been removed, and the drains “ widened, straightened, and excavated,” and giving the location of the various drains by courses and distances, including Spot Pond Brook on both sides of Pleasant Street, which brook was described as “laid out twelve feet wide.” The return of the commissioners, after setting out the agent’s report, stated that the “ commissioners do now incorporate into (and make the same a part of this return) the above report of the acts and doings of their agent in removing the dam and obstructions, and deepening and straightening and widening the channels of said brooks and streams, and they do also adopt the above location of the said brooks and streams and drains as made in the above agent’s report.” The report concluded by reciting that “ the town of Malden is to keep in repair and maintain that part of the drain within the limits of that town; and Melrose to maintain and keep in repair that part within the limits of the town of Melrose.” Neither the culvert under Pleasant Street, nor Spot Pond Brook below that point, was changed by the commissioners in carrying out the system of drainage adopted by them. In February, 1886, there was an extraordinary freshet, caused by rain and melting snow and ice; and the increased flow of Spot Pond Brook due to the changes made by the commissioners, being obstructed by the Pleasant Street culvert, overflowed its banks above that point. The plaintiff, who was the owner of mill property on that stream above Pleasant Street, was damaged therein by this overflow, and contended that the culvert was insufficient in size, and that its insufficiency was the proximate cause of the overflow, and consequent damage to his property.</p> <p>The defendant, among other requests for instructions to the jury, presented the following: “1. That on the whole evidence the plaintiff is not entitled to a verdict. 2. That by virtue of the St. of 1869, c. 378, and its acceptance by the towns of Malden and Melrose, and the acts of the county commissioners in pursuance of the authority vested in them by said act, the defendant is not responsible for any damage that may have arisen from any defect in «the construction of the culvert under Pleasant Street, in respect to its size or course.”</p> <p>The judge refused so to instruct the jury, but instructed them, among other things, as follows: “ It was the duty of the city to have and maintain at Pleasant Street such a culvert as to size, and in other respects, as would carry off the water with reasonable freedom, and not obstruct and set it back on the lands of the riparian proprietors above; and it was also the duty of the city to use due and reasonable care to keep the culvert free from obstructions which would materially hinder and prevent the free flow of water through it. . . . This would not only include all ordinary freshets usually occurring in the spring or fall, but would also require the culvert to be sufficient for the water of greater freshets than the usual spring or fall freshets, namely, such freshets as have been known to occur once in several years, though not at regular intervals, and which could reasonably have been anticipated. . . . The city was obliged by law so to maintain and care for the culvert that it should be reasonably sufficient, according to the requirements which I have stated, having reference to the condition of the stream and all the lawful structures upon it, and such lawful changes in the character of the stream as might take place and could reasonably be foreseen and provided for. ... It is suggested, and claimed upon the evidence, that the effect of the alteration which the county commissioners made in the streams is such that in times of high water the water flows off more freely, comes down the stream in larger volume, and so makes a greater demand upon the capacity of this culvert. . . .Was the change of such character as to require any alteration or enlargement of the culvert ? And, if so, ought the defendant in the exercise of reasonable and ordinary care to have appreciated and known it ? I think the law to be — and it is what I give to you for the purposes of this case — that the defendant was bound to use reasonable and ordinary care with reference to the circumstances of the case, as those circumstances were known, or ought reasonably to have been known by it; and if there was this change in the condition of the stream, that is, a permanent change lawfully brought about, then that change was part of the body of facts and circumstances with reference to which the defendant was called upon to act, and with reference to which, * under' the rule of reasonable and ordinary care and diligencé, its conduct is to be judged.”</p> <p>The judge also submitted four questions to the jury, of which the first, second, and fourth, with the answers thereto, are as follows: 1st. Was the freshet which occurred in February, 1886, at the time of the damage to the plaintiff, an extraordinary freshet, one that was marked and unusual in degree, beyond common experience, greater than freshets known to occur, though only once in several years, and at no regular intervals, and so excessive in character that it could not reasonably have been anticipated? Answer. No. 2d. Was the culvert in the condition in which it was at the time of plaintiff’s alleged injury, in February, 1886, sufficient to provide for the passage of the water in its high or low annual stages, whether open or frozen or carrying off floating ice, including ordinary annual freshets and also the water of greater freshets than the usual spring and fall freshets, namely, such freshets as have been known to occur once in several years, though at no regular intervals, and which could reasonably have been anticipated ? Answer. No. 4th. Would the culvert have been sufficient under the conditions and circumstances referred-to in the second question, apart from any changes in the stream and flow of water that may have been produced by the action of the county commissioners under the statute of 1869 ? Answer. Yes.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Five PETITIONS for writs of certiorari to quash the proceedings of the county commissioners of Middlesex with reference to taxes assessed upon certain corporations by the city of Lowell. Holmes, J. reserved the cases for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Tenants in Common — Assignment of Mortgage — Foreclosure by Cotenant — Contribution — Notice — Laches.</p> <p>Land subject to a mortgage was given by a testator to his wife for life, and at her death to his sons. The mortgagee entered to foreclose in 1873; and within the three years necessary to complete the foreclosure, one of the sons, upon receiving from him an assignment of the mortgage with all rights under the entry, and from the widow a conveyance of the equity, took possession of the land. The widow died in 1884, and in 1885 such son sold the land to a bona fide purchaser for value. The assignment and entry were duly recorded, but the other sons had no actual notice thereof until after their brother’s death, in 1887, and thereupon brought a bill in equity to redeem the mortgage. Held, that the plaintiffs were entitled to the benefit of the assignment and attempted foreclosure ; that they had not been guilty of laches; and that they might maintain the bill for their share of the purchase money, if satisfied with such remedy.</p>

<p>Jury — Peremptory Challenge — Intoxicating Liquors — Civil Damages — Notice — Evidence.</p> <p>In civil actions, the right of peremptory challenge conferred by the Pub. Sts. c. 170, § 36, extends to bystanders put upon the panel as well as to the jurors regularly summoned, and may be exercised after such bystanders are sworn and at any time before the beginning of the trial.</p> <p>If a notice in writing forbidding the sale of intoxicating liquors to a person having the habit of drinking them to excess does not expressly state the relationship existing between the giver thereof and such person, it must he shown, to support an action against the seller under the Pub. Sts. c. 100, § 25, that he knew or believed that the requisite relationship existed between them; it is not enough that he had reasonable cause to believe that such relationship existed.</p> <p>The action allowed by the Pub. Sts. c. 100, § 25, for the recovery of such a limited sum as may be assessed by a jury for the sale or delivery, after notice, of intoxicating liquors to a person having the habit of drinking such liquors to excess, is essentially a penal action; and in a suit by a daughter for such a sale to her father, evidence may be admitted, in order to assist the jury in assessing the damages, of the circumstances attending each violation of the statute, and of the effect of such violation upon the relations between the plaintiff and her father.</p> <p>At the trial of such an action, in which the declaration alleged, in various counts, the sale of liquors on days specified and during periods including such days, and also permission to loiter on the defendant’s premises, the jury were instructed that the plaintiff need not prove that the sales were made on the particular days alleged; that, to recover under the counts covering a period of time, the plaintiff must show a sale within such period; that under the counts alleging particular days the plaintiff might recover for injuries suffered by reason of a sale made on any day not used as a basis for recovery under any other count; that there must be only one allowance of damages for one sale, and only one sale allowed under any count; and that under the counts for loitering, as for sales, they were to allow damages only for a particular occasion other than an occasion when sales were made. Held, that the defendant had no ground of exception.</p>

<p>Tort, under the Pub. Sts. e. 100, § 21, brought by the administratrix of Charles F. Herrmann against Eleazer F. Orcutt and Fowler L. Washburn, for an assault made upon the-intestate by Washburn while intoxicated by liquors sold him by Orcutt.</p> <p>At the trial in the Superior Court, before Staples, J., there was evidence tending to show that Orcutt sold intoxicating liquors to Washburn, which he drank, and that he thereby became intoxicated, and while so intoxicated he committed the assault in question, which, as the plaintiff contended, resulted in the death of the intestate. The defendant Orcutt offered evidence tending to show that, upon the day the intestate died, Washburn called at his house, and had some talk with the plaintiff and with her husband, the intestate, regarding the alleged assault, and that during that conversation the plaintiff told Washburn that her husband said that Washburn ought to pay him thirty dollars before the following Saturday night, and that Washburn agreed to pay the same.</p> <p>The defendants asked the judge to instruct the jury, that, if the plaintiff recovered anything, she could not recover more than thirty dollars, and interest on the same from the date of the agreement. The judge refused so to rule, but ruled that the jury might take such offer into consideration in estimating the damages, and submitted the case to the jury under appropriate instructions, not excepted to.</p> <p>The jury returned a verdict for the plaintiff in the sum of $793.58; and the defendants alleged exceptions.</p>

Contract to recover the surplus proceeds of a mortgage sale. Phineas Beaman, summoned in under the St. of 1886, c. 281, appeared as claimant of the fund. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, on agreed facts, which appear in the opinion.

<p>Tax — Exemption— Cemetery.</p> <p>A cemetery corporation was authorized by its act of incorporation to devote a limited tract of land, which was thereby exempted from taxation, to a rural cemetery, and to erect thereon a dwelling-house with suitable appendages. After-wards it bought other land on the opposite side of a highway, upon which stood a dwelling occupied rent free by its superintendent, whose salary included this privilege, and two small barns for the horse, carts, and tools used in caring for the cemetery grounds. Subsequently a special act authorized the corporation to take and hold property by purchase or otherwise, any limitation in the original act notwithstanding, to be devoted “ exclusively to the purposes connected with and appropriate to the objects of the corporation.” Held, that by the latter act the purchase theretofore made was confirmed, and the exemption from taxation extended to the land so purchased.</p>

<p>Contract, brought by a judge of probate on behalf of a legatee, against an executor and his sureties upon a probate bond in the form prescribed by the Pub. Sts. c. 129, § 5. Writ dated June 28,1889. Trial in this court, without a jury, before W. Allen, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It was in evidence that the bond was duly executed and filed on June 7, 1887; that the inventory and account were filed on April 9, 1890; and that the account had not been allowed by the probate judge, the citation thereon being returnable at a later date than the trial. The defendants offered to prove that all the assets mentioned in the inventory were received more than three months after the filing of the bond; also, that no creditors had presented claims against the estate which remained unpaid; that at the time of his decease the testator was indebted to the executor in a sum greater than all the assets at any time in the hands of the executor; that all the funeral expenses had been paid; and that at no time had the executor funds with which to pay any portion of this legacy.</p> <p>The defendants asked the judge to rule: 1. That it is no breach of the bond to omit filing an inventory when no assets come into the hands of the executor until after the expiration of three months from the date of the appointment. 2. When the debts due from the testator at the time of his decease to the executor and the burial expenses paid by him exceed in amount all assets at any time received by the executor, and no creditor presents any claims within two years from and after the date of the appointment, it is not a breach of the bond to omit filing an account without being first cited thereto. 3. That the plaintiff cannot maintain this action without showing that some damage has been sustained by reason of the omission of the executor to file either the inventory or account.</p> <p>The judge refused so to rule, and found for the plaintiff; and the defendants alleged exceptions.</p>

Writ of entry, to recover a parcel of land in Charlton. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the demandants, to this court on appeal, on agreed facts, which appear in the opinion.

<p>Arbitration — Submission by Attorney — Trial by Jury.</p> <p>A party to a submission to arbitration under the Pub. Sts. c. 188, purporting to be made by him by his attorney, is entitled, if the award is adverse, to a trial by jury upon the question of the attorney’s authority, and is not deprived of that right because 1ns motion therefor includes other issues, upon which he is not entitled to a jury trial. t</p> <p>A party entering personally or by his authorized attorney into a submission to arbitration, under the Pub. Sts. c. 188, waives his right to a trial by jury; and all questions of fact involved therein as to whether the award is to be accepted, rejected, or recommitted, are to be decided by the court to which it is duly returned.</p>

Tort for personal injuries occasioned to the plaintiff by reason of the want of a railing on a bridge at the side of a highway in the defendant town. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, which, so far as material to the point decided, is as follows.

<p>Contract — Corporation — Paying in of Capital Stock — Filing of Certificate.</p> <p>A contract made by a manufacturing corporation, in the course of its business, before its capital stock has been paid in and a certificate of that fact filed, is not rendered void by the Pub. Sts. c. 106, § 46, forbidding a corporation to “ commence the transaction of the business for which it was organized ” until those things are done.</p>

<p>Petition, filed September 6,1889, for a writ of babeas corpus to the State Board of Lunacy and Charity. The petition alleged that three minor children of the petitioner were restrained of their liberty by such board, by virtue of a warrant issued by the Superior Court; that any cause for depriving him of the care, society, and assistance of such minor children, which existed at the date named in such warrant, had ceased to exist; that he was now able to give them full and proper support, and was competent and fit to have the care and education of such children ; and that their welfare would permit their restoration to him and their removal from their present custody. The warrant, which was annexed to the petition, recited that the Superior Court, on November 2, 1888, after due notice to the petitioner and his appearance and a full hearing, ordered that such children, “ who, by reason of the neglect of their parents, were growing up without education or salutary control and in circumstances exposing them to lead an idle and dissolute life., ... be committed to the custody of the State Board of Lunacy and Charity,” without more. The answer recited that such children were subject to the control of the board until they became of age, unless in its judgment “the object of such commitment has become accomplished”; and that the judgment of the board, which it was advised was conclusive, was that such object had not been accomplished. The case was heard by Devens, J., who ruled, as matter of law, that the petitioner was not entitled to the writ, and could not offer evidence to prove the allegations of his petition, and reported the case for the consideration of the full court.</p> <p>The case was argued at the bar. in November, 1889, and after-wards was submitted, on the briefs, to all the judges.</p>

<p>Landlord and Tenant — Summary Process — “ Possession ” — Notice to quit.</p> <p>A lessee under an undisclosed written lease entered into a partnership to carry on a business upon the leased premises, and the rent was paid to the owner out of the partnership funds. His copartner bought out the lessee and succeeded to the possession of the premises, and in turn sold the business and transferred the possession to his wife. The lessee, having paid the next instalment of rent to the owner, thereupon gave the wife notice to quit, and three days later brought an action against her on the Pub. Sts. c. 175, to recover possession of the premises. Held, that the defendant was a person holding under a lessee, within the meaning of the Pub. Sts. e. 175, § 1, and that the plaintiff was the “person entitled to the premises,” within the meaning of the statute, and could maintain the action; and that the notice to quit was sufficient.</p>

<p>Great Pond—Prescription — Statute of Limitations — Public Nuisance.</p> <p>Under the Colony ordinance of 1647, providing that “ no town shall appropriate to any particular person or persons any great pond containing more than ten acres of land,” a deed made in 1770 by the proprietors of a town to an individual, and purporting to convey a great pond within its limits, is invalid.</p> <p>A prescriptive right to lower the waters of a great pond below low-water mark might be gained by an individual after the enactment of the Rev. Sts. c. 119, § 12, which made the statute of limitations of real actions applicable to suits brought by the Commonwealth; and the amendatory St. of 1867, c. 275, which excepted from such application suits relating, among other things, to the Commonwealth’s title in great ponds, did not operate to divest such prescriptive rights already acquired.</p> <p>The rule that no length of time will legalize a public nuisance does not apply where no other nuisance exists than an abridgment of the public’s enjoyment of property, such as a great pond, by the long continued use of some part of it by an individual under a claim of right, in the way a private owner would ordinarily use it, and where a statute exists permitting the acquisition by disseisin of a complete title thereto against the State.</p>

Tort, brought in the District Court of Northern Berkshire, in which the writ described the defendant as “ Mary Dupuis, otherwise known as Mary Dupue.” The record of the District Court contained the following: “ December 6, 1887, judgment was given for plaintiff for $20 damages and costs taxed at $21.07, from which judgment defendant appeals to the next term of the Superior Court at Pittsfield, on the first Monday of January next. Ordered to file bond in sum of $100.

<p>Bill in equity, brought by the trustees under the will of Benjamin W. Gleason for instructions, as to the disposition of a fund. The case was reserved by Devens, J. for the consideration of the full court, and was as follows.</p> <p>The will of Benjamin W. Gleason, who died on January 19, 1884, contained the following provisions which alone are material:</p> <p>“ Seventh. I give, devise, and bequeath to my trustees, Joseph S. Kendall and William A. Tower aforesaid, all my real estate, of which I may die seised and possessed, of every description, and wherever situated, including all my manufacturing propei'ty, machinery, and water power, to have and to hold the same to the said Joseph S. Kendall and William A. Tower, their heirs and assigns forever, but in trust nevertheless for the following purposes, that is to say: to sell and convey in fee simple my homestead estate to either of my three sons, Charles W. Gleason, Stillman A. Gleason, and Alfred D. Gleason, if either of them shall desire to purchase the same for a consideration satisfactory to my said trustees, and secondly to permit my three sons, Charles, Stillman, and Alfred, to occupy and improve the residue of said trust estate for the joint benefit of my said sons so long as they may desire to do so, my said sons to keep said real estate, manufacturing property, machinery, and water power in good repair and condition, and to keep the same insured to the satisfaction of my said trustees, and to contribute and pay one hundred and fifty dollars per annum for the maintenance of the public worship of Almighty God in the church now established in the village of Rock Bottom in said Stow, my said sons to be subject to no charge for rent so long as they comply with the conditions aforesaid, and I desire that religious worship should be maintained in Rock Bottom so long as the factory is occupied or held by any of my family. If at any time either of my said sons shall express in writing to my trustees a desire that the property so held in trust should be sold, then I direct my said trustees to cause the value of said property to be ascertained upon the appraisal of three discreet and judicious men, to be appointed by my said trustees, and to convey the same by deed in fee simple to either two of my said sons who may wish to purchase at the appraised value thereof, ascertained as aforesaid, but if neither two of my said sons shall desire to become the purchasers of said estate under said appraisal, then I authorize and direct my said trustees, in their discretion, to sell and convey in fee simple said real estate, manufacturing property, machinery, and water power, at such time and in such manner, either at public auction or private sale, as shall in their opinion be most advantageous to said trust estate. It is my request that my said sons shall occupy and improve the factory property and real estate of which I may die seised and possessed (excepting the homestead) jointly so long as they agree, remain steady and respectable men, and can make the business profitable; when they cannot do so, then I direct my said trustees to sell and convey in fee simple the whole of my said factory property and real estate, and to safely invest the proceeds of such sale, and to pay over to each son, as they shall respectively arrive at the age of fifty years, one third of said trust fund, with its accumulations, so remaining in their hands. If either of my said sons shall die before arriving at the age of fifty years, I direct his share to be paid by my said trustees to his legal heirs. . . .</p> <p>“ Tenth. All the rest and residue of my estate of every name and nature I give, devise, and bequeath to my three sons, Charles W., Stillman A., and Alfred D., to be divided between them share and share alike.”</p> <p>Stillman A. Gleason requested the plaintiffs in writing to sell the factory property referred to in the will, and they, having caused the property to be appraised as required in the will, by a deed dated November 28, 1887, and duly recorded, conveyed the same in fee simple to Charles W. Gleason and Alfred D. Gleason, the remaining two sons, who had expressed their wish to purchase the same at such appraised value. The plaintiffs received and invested, and still hold, the proceeds of the sale, which amounted to over $97,000. Subsequently, on August 7, 1888, Stillman A. Gleason died intestate, not having arrived at the age of fifty years, leaving a widow who was duly appointed his administratrix, and as his only next of kin a minor son, for whom a guardian was duly appointed. Neither Charles W. Gleason nor Alfred D. Gleason had arrived at the age of fifty years at the time of the sale, or when the bill was filed.</p> <p>The widow of Stillman A. Gleason contended that the trust was terminated on the sale of the property and the receipt of the proceeds by the plaintiffs, and that she was entitled, either as his administratrix to his entire share thereof, or individually to one third of such share as one of the distributees of his estate; also, that if the trust fund was to be treated as real estate, she still had an interest in it. Charles W. Gleason and Alfred D. Gleason contended that the sale and conveyance to them terminated the trust, and that they were entitled to their share of the proceeds thereof discharged from any trust. The guardian of the minor son of Stillman A. Gleason contended that his ward was entitled, as the only heir at law of Stillman A. Gleason, to the whole of the latter’s share of the proceeds of such sale.</p> <p>The case was argued at the bar in January, 1890, and after-wards was submitted on the briefs to all the judges.</p>

Tort, with a count in contract, to recover damages for interrupting the plaintiffs’ business by cutting off the power. Trial in the Superior Court, before Dewey, J., who reported the case for the determination of this court, in substance as follows.

<p> Railroad Location—Abandonment—Evidence. </p> <p>Upon the issue of the abandonment by a railroad corporation of a strip of land half a rod wide on one edge of its location, there was evidence that, shortly after the road was located five rods wide, the directors passed a vote looking to the narrowing of the location in certain places, and providing how it should be done; that subsequently the damages caused by the railroad to the parcel of which the strip formed a part were awarded, with the corporation’s consent, and the same paid, and a release given, on the basis of a location four rods wide; and that for thirty years thereafter the corporation, maintained a fence which excluded the strip and marked the location as apparently four rods in width. Held, that the evidence was sufficient to go to the jury, and to warrant a finding of abandonment.</p> <p>An abandonment of a right of way is usually and properly shown by acts which do not appear of record; and it need not appear of record in order to be effectual.</p> <p>At the trial of an action against a railroad corporation, its agreement with the owners of land taken by it respecting damages was in evidence, and their signatures were admitted to be genuine A release to. the corporation of such land, purporting to he made on the same date as the agreement, and to be signed by the same owners, and, for the most part, by the same witnesses, and to be acknowledged on the same day before the same magistrate, was offered in evidence for the purpose of showing that the corporation, if the agreement was carried out, was to take a deed of a strip but four rods wide, which fact was conceded in the course of the trial. Held, that the release was sufficiently identified to go to the jury, and if not, an objection to its admission became immaterial.</p> <p>A deed to trustees in temporary possession of a railroad of a strip of land included in its original location, which recited their opinion that increase of business required its purchase, is admissible, on the issue of its abandonment by the railroad, as tending to show that the grantees did not then claim to have a right to use it, although the conveyance was subject to a prior mortgage whose foreclosure rendered the grant ineffectual.</p>

<p>Appeal, by the heirs at law of Catharine M. Houlihan, from a decree of the Probate Court allowing her will. At the trial in this court, before W. Allen, J., upon the issues of due execution of the will, of the mental soundness of the testatrix, and of fraud or undue influence, the jury answered the last issue in the affirmative, and the executor alleged exceptions to the admission of certain evidence, the nature of which appears in the opinion.</p>

<p>Will — Issues to Jury — Evidence — Attesting Witness.</p> <p>On the issue whether a will was induced by the undue influence of the testatrix’s pastor, it is a matter of judicial discretion to admit in evidence, as bearing on her mental condition, a book which she had in her library and was wont to read, containing a vivid description of hell, even if there is no evidence that he furnished, used, or referred to it, or that it produced any effect on her mind; also, if it is admitted, to determine whether the jury should be permitted to take it with them to the jury-room when they retire to consider the case.</p> <p>The opinion of an attesting witness to a will, sought on cross-examination, as to whether the testatrix had sufficient strength of mind to comprehend a clause of the will creating a charitable trust, was held to he properly excluded.</p> <p>At the trial of a probate appeal, where twelve issues relating to the due execution of a will, to the testatrix’s sanity, and to undue influence, were submitted to the jury, the presiding judge may in his discretion refuse to submit to the jury the further issue whether the testatrix was prevented by force or fraud from revoking the will, and also other issues relating to collateral matters.</p>

<p>Petition to the Probate Court, by Phebe A. I. Buffinton, that the respondent, Harriet Maxam, be ordered to render an account as trustee under the will of Borden C. Tallman.</p> <p>The will, except the parts merely formal, was as follows s “ 1st. To my daughter Harriet I give my half of the farm, together with produce, stock, and farming implements thereon, and the rest and residue of all my property, whether real or personal, of whatever name or nature, for the support of my daughter Caroline E., except the following legacies. 2d. To my daughter Phebe Ann I give five dollars. 3d. To my daughter Caroline E. I give five dollars.” The judge of probate entered a decree ordering the respondent to file an account of her trust; and from this decree the respondent appealed, assigning as a reason of appeal that “ the estate all belongs to said Harriet, and she is accountable to no one for the same, or for her doings in relation to the same.”</p> <p>At the hearing in this court, before O. Allen, J., the following facts were agreed. Borden C. Tallman died in -February, 1882, leaving as his only heirs at law his three daughters, Phebe A. I. Buffinton, Harriet Maxam, and Caroline E. Tallman. His will was duly allowed in May, 1882, and .after the former decision, reported 140 Mass. 557, the respondent was duly appointed trustee thereunder, and duly furnished a bond as such. His daughter Caroline was an insane person, and so continued until her death, in July, 1889. The family, until the marriage of Phebe, about 1870, consisted of the father and the three daughters. His relations to all his children were friendly, and both Phebe and Harriet helped to take care of Caroline up to the time of Phebe’s marriage. After her marriage -Phebe frequently visited the family, and was visited by her father, and she assisted in taking care of him in his last illness. One half of the farm on which the family lived belonged to him, and the other half belonged to Harriet. After Harriet’s marriage, which took place about four years before her father’s death, she and her husband, together with her father and Caroline, continued to live on the farm until the father’s death, she having the care of Caroline, and her husband running the farm. After the father’s death, Caroline continued to live with Harriet on the farm, and was taken care of by her until she died. The father had no real estate except the half of the farm devised to .Harriet; and the rest of his estate consisted of $12,000 in personal property.</p> <p>The judge ordered the decree of the judge of probate to be affirmed; and the respondent appealed.</p>

<p>Sale of Clothing Business — Option.</p> <p>An agreement in writing for the sale of a clothing business, to take effect at a future day, in which the seller agreed to sell goods on his own account till that day, when he was to sell and the purchasers were to buy so much of the stock in trade “ not exceeding $1,000 in value ” as should then remain unsold, contained the proviso that the purchasers should “be bound to take only such goods as they themselves shall select.” Then followed the stipulation, that “ in said goods so to be purchased there shall be no single vests or no single coats; the coats and vests purchased shall be coats and vests to match.” Held, in an action brought by the seller for breach of the agreement, that the purchasers had only a right to determine by selection what goods they would take to make up the requisite quantity, and not an option to take any or none of the goods.</p>

Contract to recover for aid furnished to Adeline Shurtleff and her five minor children, alleged to be paupers having a settlement in the defendant city.

Complaint for keeping a common nuisance, to wit, a tenement in New Bedford used for the illegal sale and keeping for sale of intoxicating liquors, from June 24,1889, to July 4, 1889. At the trial in the Superior Court, before Thompson, J., the government introduced evidence tending to prove the following facts.

Indictment for larceny from the person of one Delano. At the trial in the Superior Court, before Thompson, J., the government, in addition to other evidence tending to show that the defendant committed the larceny, introduced evidence that the defendant when with Delano, who was very much intoxicated at the time, was seen to put his hand into Delano’s pockets.

<p>Complaint for keeping a common nuisance, to wit, a tenement used for tbe illegal sale and beeping for sale of intoxicating liquors from May 1, 1889, to January 20, 1890. At tbe trial in tbe Superior Court, before Staples, J., it was admitted tbat tbe defendant was tbe proprietor of a sbop, wbicb was tbe tenement in question. Tbe defendant contended, and offered evidence tending to sbow, tbat bis sbop was a drug store, and that be kept and sold medicines. Tbe evidence introduced by tbe government tended to sbow that intoxicated persons were seen to come out of tbe defendant’s sbop during tbe time alleged; tbat on Sunday, January 19, 1890, numerous persons visited tbe sbop; and that on tbat day, as well as on June 23, 1889, tbe defendant was seen to make single sales of liquor.</p> <p>One Dayton, a witness for the Commonwealth, testified, among other things, that on one occasion, in December, 1889, as he was going by the defendant’s shop, the defendant was standing outside of the door and the witness said to the defendant, “ There is a man who has been drinking a good deal, and he says he bought his liquor at your shop, and the .matter has been reported to the chief of police”; to which Slosson replied, “ Can’t it be fixed up? ” This evidence was objected to by the defendant, because it did not appear that the purchase of the liquor referred to was during the time of the complaint; but the judge admitted the evidence, ruling that unless the jury were satisfied that the purchase of the liquor referred to was during the time covered by the complaint, they must disregard the evidence; and the defendant excepted.</p> <p>At the conclusion of the evidence, the defendant asked the judge to give the following instructions to the jury:</p> <p>“ The mere fact that large numbers of persons were seen going into the store of the defendant on Sunday, January 19, 1890, is immaterial and incompetent on the question of the maintaining of a common nuisance, unless it is supported by evidence that liquor was sold or delivered to them after they went in. If the jury should be satisfied from the evidence that there was a single sale of liquor by the defendant on June 28, 1889, and again on January 19, 1890, these facts would not be sufficient in law to convict the defendant of maintaining a common nuisance as charged in the complaint. If the jury should be satisfied from the evidence that intoxicated persons have been seen coming out of the defendant’s store, the jury would not be justified on that evidence in finding that they obtained any liquor there, but the presumption would still be that they did not get any there.”</p> <p>The judge declined so to instruct, but among other things instructed the jury that, “ if intoxicated people were seen coming from the defendant’s shop, that is evidence to be considered upon the question whether intoxicating liquor is kept for sale there. The mere fact .that large numbers of persons were seen going into the store of the defendant at a particular time, January 19, 1890, only furnishes evidence proper to be considered by the jury in connection with other circumstances of a significant character as indicating that intoxicating liquors are sold there. The fact must exist in connection with circumstances such as indicate that the persons were there as frequenters of a drinking place, and not as mere visitors or as patrons of a drug store.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Two complaints, charging the defendant with keeping intoxicating liquors with intent unlawfully to sell the same. At the trial in the Superior Court, on appeal, before Dewey, J., the government offered evidence of two seizures of intoxicating liquors upon the premises occupied by the defendant’s family.

<p>Intoxicating Liquors — Sale of Cider — Statutory Exemption.</p> <p>A sale of eider by the maker thereof, through a servant or a person hired by him for the purpose, is within the exemption of the Pub. Sts. c. 100, § 1, although the maker has the cider made at a neighboring cider-mill, and does not himself raise all the apples from which it is made.</p>

Two complaints, for keeping intoxicating liquors with intent unlawfully to sell the same.

Contract to recover a balance alleged to be due on an agreement in writing for the construction of a granite monument. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions in substance as follows. The plaintiffs, who composed a firm of granite-cutters, agreed in writing to construct the monument in question for the defendant ; and a warranty was embodied in the agreement, that the work should be free from all imperfections.

<p>Indictment alleging that the defendant, at a hearing in the Probate Court holden at Worcester in the county of Worcester in this Commonwealth, procured “Laura A. Fairbanks of Worcester in said county of Worcester ” to commit perjury. At the trial in the Superior Court, before Aldrich, J., one Laura A. Fairbanks, who was admitted to be the person described in the indictment as of Worcester in this Commonwealth, testified, without contradiction, that at the time she testified in the Probate Court her residence was in Brookline in the State of New Hampshire, and has been there since. The judge declined to rule, as requested by the defendant, that “ there is a variance between the evidence and the allegations of the indictment in this, that the indictment alleges perjury by Laura A. Fairbanks of Worcester, in the county of Worcester in the Commonwealth of Massachusetts, and the evidence tends to prove perjury only by Laura A. Fairbanks of Brookline, New Hampshire.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Town — Overseers of the Poor — Executory Contract — Ratification.</p> <p>The overseers of the poor of a town, whose board 5s annually reconstituted, under the Pub. Sts. c. 27, § 69, by the retirement of one member and the election of another, have no authority, while acting as almshouse directors, to bind the town respecting the management of the almshouse for the next municipal year.</p> <p>An invalid executory agreement for the rendering of personal services to a town, entered into by its board of overseers of the poor, cannot, after the reconstitution of the board by the retirement and election of a member, be ratified by its members acting individually and not as a board; and the continuance of the services thereafter, and knowledge on the part of the new member that there was some sort of an agreement for such services of the terms of which he had been only partially informed, are insufficient to show such ratification by the board.</p>

Petition by tbe administrator of the estate of Sarah Jones to the Superior Court, for a jury to assess the damages caused by the taking by the respondent of land, consisting of beach and upland, of the intestate in Hull.

<p>Intoxicating Liquors — Sales by Licensed Innholder — Labor Day.</p> <p>A licensed innholder cannot, under the St. of 1888, c. 254, § 2, lawfully sell intoxicating liquors on Labor Day, except to bona fide guests or travellers sojourning at the inn, since § 1 of that chapter was amended by the St. of 1889, c. 347, to include this holiday.</p>

<p>Petition for a writ of mandamus to compel the respondent town to repair one third portion of the draw fender of a bridge across the Merrimack River, between the city of Haverhill and the town of Groveland. The case was submitted to this court upon an agreed statement of facts, the material part of which appears in the opinion.</p>

<p>Personal Injuries— Unguarded Elevator Well near Street — Negligence — Due Care.</p> <p>The various stories of a building on a city street, partly let and partly occupied by the owner for workshops, were reached by a common entry, communicating with the street by a door and steps. This entry contained on the first floor several letter boxes placed there by the tenants for the accommodation of the letter carrier upon that route. This carrier, in attempting to enter the building by the steps and door to deposit a letter for a tenant in his box, was injured by a defect upon the premises. Held, in an action against the owner to recover for such injuries, that the jury would be justified in finding that the carrier entered the building by the' implied authority or invitation of the owner.</p> <p>A freight elevator well in a building, partly let and partly occupied by the owner for manufacturing purposes, communicated directly with the street by an opening provided with a sliding door and with a chain to guard it. Separated from this opening by a granite post a foot wide was an open doorway of about the same size and construction, and on the same level from the street, which led by means of a few steps and an inner door to the common entry of the building. owner who operated the elevator and permitted the tenants to use it during the day employed a night watchman, whose duty it was to close the elevator opening at six o’clock. In the entry were letter boxes placed there by the various tenants for the accommodation of the letter carrier upon that route. This carrier on a dark evening, after the watchman had arrived, attempted to enter the building to deposit a letter for a tenant in his box. The place was dimly lighted, and as he felt his way along he stepped into the elevator opening, which was not closed or protected by the chain, and fell and was injured. Held, in an action against the owner for such injuries, that the jury might properly find negligence on the part of the owner and due care on the part of the carrier.</p>

Contract by the administratrix of the estate of Samuel C. Perkins, for money had arid received. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions in substance as follows.

Contract against the principal and sureties on a bond to indemnify the plaintiff, as executor of the will of Ann J. Lichtear, from debts “ due from the estate.” The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, on agreed facts, which, so far as material, appear in the opinion.

Complaint for selling bread in violation of the Pub. Sts. c. 60, §§ 3, 4. At the trial in the Superior Court, before Thompson, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.

<p>Gift by Will to Widow — Restraint of Marriage.</p> <p>A gift by will of the testator’s entire estate to his wife “so long as she remains my widow,” with no other disposition thereof in the event of her marrying again, is of the use of the property during her widowhood only, and is not invalid as being in restraint of marriage.</p>

<p>Appeal from a decree of the Probate Court appointing Francis A. Gaskill trustee of a fund created by the will of John Green. Hearing before Holmes, J., who, at the request of the appellants, reported the case for the consideration of the full court, in substance as follows.</p> <p>Meltiah B. Green received the fund in question, which was bequeathed to him for life by John Green, and has now died leaving no children. His widow, Mary S. Green, who survives him and is entitled to the income of the fund for her life, requests and desires the appointment of Mr. Gaskill. The appointment is opposed by the appellants, who are persons entitled to half of the fund after her death; she is now seventy-nine years old. Mr. Gas-kill has been her counsel in some matters distinct from the present, but is not. acting for her in this case, and is not in any way personally prejudiced as between her and the appellants. The only ground of opposition requiring consideration was based on the fact that Mrs. Green is the executrix of her husband’s will, and that Mr. Gaskill is a surety on her bond as such executrix, with another solvent person, for $10,000; and that, if her husband should be found to be chargeable in any way to the trust fund, the estate in her hands would be chargeable. Her husband left all his property, amounting to much more than the trust fund, to her, and his estate owes no debts. The trust fund exists in specie, and the securities in which it is invested have not declined through his fault, but, on the contrary, so far as appears, have risen in value, and there is no doubt that the fund is ready to be turned over. The only specific ground on which it was suggested that the husband’s estate might be chargeable was that there was received by him from the estate of John Green, and receipted for in a lump sum with the capital, but on a distinct understanding and statement that it was received as interest, the sum of $8,244.35, being accrued interest on the fund since the death of John Green. This the appellants claim should be accounted for by the husband’s estate as added to the principal under the terms of the will of John Green, because it was not actually expended or applied by the husband in his lifetime. There seems to be no ground for the claim, or ground to doubt that Mr. Gaskill will do whatever is required by impartial dealing between the parties concerned.</p> <p>The judge refused to rule that the foregoing facts necessarily and as matter of law made Mr. Gaskill incompetent, and found that he is a proper person to be appointed, and ought to be appointed ; and ordered the decree of the Probate Court to be affirmed.</p> <p>If the refusal to rule as requested was correct, the decree of the Probate Court was to be affirmed; otherwise, such decree was to be made as to the court might seem proper.</p>

<p>Contract for use and occupation. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant set up that she was induced to agree to hire the building and rooms by false and fraudulent representations made to her by the plaintiff, and that she suffered great damage thereby, exceeding the amount of the rent agreed upon; she testified that she had continued in occupation of the premises to the time of the trial, and was still in the occupation of them.</p> <p>The defendant asked the judge to instruct the jury, that, if she was induced to make the agreement by any false representations, or by any fraud on the part of the plaintiff, then the plaintiff could not recover. The judge declined so to instruct the jury, but instructed them that, if they found the defendant made the agreement which the plaintiff claimed, and was induced to do so by any false or fraudulent representations made to her by the plaintiff, they should deduct the amount they found she had suffered thereby, if less than the amount due to the plaintiff from the defendant, and bring in a verdict for the plaintiff for the difference; but if the amount of damages sustained by the defendant through any such false or fraudulent representations was more than the amount due the plaintiff, they should return a verdict for the defendant.</p> <p>The jury returned a verdict for the plaintiff; and £he defendant alleged exceptions.</p>

Indictment for adultery. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions in substance as follows.

<p>Elections — Compensation of Precinct Clerk.</p> <p>The clerk of a city voting precinct, required by statute to attend the meeting of such clerks within a representative district on the tenth day following the election and to make a record of the returns of votes, is entitled, under a vote of the city council fixing the compensation of such clerks at a certain sum per day “ for actual services,” to one day’s pay for attending the meeting, but not to another day’s pay for making the record.</p>

<p>Tort for breaking and entering the plaintiffs’ close. The first count of the declaration was as follows:</p> <p>“ The plaintiffs say that the defendant, on divers days and times, forcibly entered the plaintiffs’ close, being premises now numbered 25 Shavings Street, in said Boston, and more fully described in deed of Daniel Hill to James W. Leatherbee, dated August 15, 1823, and recorded in Suffolk Registry of Deeds, Lib. 285, fol. 117, and tore down, demolished, took, and carried away a wooden stable belonging to the plaintiffs, and standing thereon, and converted the same to his use.”</p> <p>The answer contained a general denial.</p> <p>At the trial in the Superior Court, without a jury, before Bishop, J., the defendant asked the judge to rule that upon this declaration the action could not be maintained, for the reason that the place of the alleged trespass was not sufficiently designated by name, abuttals, or other proper description. The judge refused so to rule, and found for the plaintiffs; and the defendant alleged exceptions.</p>

Libel for a sentence of nullity of marriage. Hearing in the Superior Court, before Lathrop, J., who, at the request of the libellee, reported the following case for the determination of this court. On December 9, 1865, the libellee, then named Elvira E. Basford, and George W. Gibson, both residents of this Commonwealth, were lawfully married at St. Albans, in the State of Vermont, and thereafter lived together as husband and wife in this Commonwealth.

<p>Contract to recover a balance alleged to be due on an account between the parties. The answer set up the statute of limitations. Writ dated May 23, 1889. Trial in this court, without a jury, before C. Allen, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>There was evidence tending to show the following facts. On November 7, 1881, the defendant owed the plaintiffs on account a sum which with interest amounted to |1,810. Samuel D. How-land was indebted to the defendant, and on that day, at the request of tbe plaintiff Buffinton, the defendant gave to the plaintiffs an order on Howland, addressed to him and signed by the defendant, for $1,810, “or any less sum in your hands due me, and charge the same to my account.” Howland was on the same day, or soon after, notified of the giving of said order, and promised to pay the same as soon as he could ascertain the amount in his hands due the defendant. After receiving this order from the defendant, frequent and repeated but unavailing attempts were made by the plaintiffs to obtain a settlement with Howland of the amount the plaintiffs were entitled to upon it until August 8, 1883, when the plaintiffs received from Howland his promissory notes for $1,145.87. At the time of obtaining the notes, the plaintiffs sent to Howland a receipt, signed by them, as follows: “ Received Fall River, 8 mo. 8,1883, from Sam. D. Howland his two notes on three and four months for $1145.87 and discounted at the Massasoit Nat. Bank Eleven Hundred Twenty-five and -AAj Dollars of said amount, viz. on account of Clark Chase’s indebtedness to us.” They also sent through the mail a similar receipt addressed to the defendant, but he denied having received it. The notes were discounted by the plaintiffs, and were renewed from time to time by Howland, and payments made by him from time to time, and at the time of the trial two of the notes, amounting to about $500, were still unpaid. No payment was made upon the order except by these notes, and no entry was made on their books by the plaintiffs until the receipt of the notes, when the plaintiffs’ account was credited with the amount obtained thereon, namely, $1,125.30; and they relied upon this payment to take their case out of the statute of limitations. Some time after the notes were received by the plaintiff's, although just when did not appear, the plaintiffs sent to the defendant through the mail a statement of their account, with the notes received on account of the order credited thereon. After the receipt of the notes, the plaintiffs spoke to the defendant several times in regard to the payment of the balance due on the account, and the defendant replied that the plaintiffs should have collected more than they had from Howland, and that because of the order the plaintiffs could not collect anything further from him. •</p> <p>The defendant introduced evidence tending to show that the order on Howland was taken in full settlement of the balance due from him, and a receipt given at the time, in which the plaintiffs acknowledged the payment of the account by the order, which receipt he had lost; that after giving the order he had given no further attention to the matter, supposing it was settled; that until 1888 no claim had been sent in by the plaintiffs, and then he wrote them a letter denying his liability ; and that he did not know of the giving of the notes by Howland, and never assented to their application on the account.</p> <p>The plaintiffs denied that any receipt was given at the time the order was taken, and contended that the order was taken only for what might be got from Howland, which was to be applied on the plaintiffs’ demand when received; and that the defendant knew that the notes had been given to the plaintiffs by Howland.</p> <p>The defendant contended, and asked the judge to rule, that the claim was barred by the statute of limitations ; that the application of the $1,125.30 must be made on the account as of the date of the acceptance of the order by the plaintiffs ; that no part payment had ever been made by the defendant under such circumstances as to remove the statutory bar; and that the plaintiffs could not recover. The judge refused so to rule, and found as facts, that the order was taken with the understanding that whatever might be received upon it should be applied to the indebtedness of the defendant; that it was not understood that the plaintiffs should accept it in full payment, or as an accord and satisfaction; and ruled that under this state of things, when the plaintiffs settled with Howland by taking his notes, it amounted to a part payment made then. The judge found for the plaintiffs for the full amount claimed.</p> <p>If the finding or ruling was erroneous, the same was to be set aside; otherwise, judgment was to be entered upon the finding.</p>

<p>Constitutional Law—Contagious Diseases among Animals — Summary Killing — Compensation to Owner.</p> <p>Under the St. of 1887, c. 252, § 13, which authorizes the summary killing of animals having the farcy or glanders, with no provision for compensation to the owner, an adjudication of the cattle commissioners that an animal has the disease is not conclusive; and an order issued by them for killing an animal not in fact infected is no defence to those executing the order in a subsequent action by the owner for compensation. (Devens, C. Allen, and Knowlton, JJ,, dissenting.)</p>

<p>Action, described in the writ as in contract or tort, for shutting off the supply of water from the plaintiff’s premises, situated on Mill Street, in Lowell. Trial in the Superior Court, without a jury, before Mason, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The following facts were agreed. The defendant city was empowered by the St. of 1855, c. 485, and by subsequent acts,* to take and hold lands, and to do other requisite acts, and to make rules and regulations for furnishing a supply of water for the use of the city and its inhabitants. By its ordinances the defendant had established a water board and regulations for the management and control of its water supply. Sections 11 and 12 of these ordinances are as follows.</p> <p>“S 11. The annual rent for the use of the water shall be made up and assessed to the owners of estates having a service pipe, and not using metered water, on the first day of March in each year for the year commencing the first day of April succeeding said assessment, and the rates so assessed shall be due and payable in advance on the first day of May following. . . . All charges for specific supplies, or for any three hundred and sixty-fifth part of a year, shall be payable in advance, and before the water is let on.</p> <p>“ § 12. In all cases of the non-payment of the water rates for thirty days after the same are due, the superintendent shall cut off the supply, and the water shall not again be let on, either for the present or any subsequent occupant, except upon the payment of the amount due, together with the sum of two dollars ; provided, that in any case where the water may have been let on by mistake or otherwise before payment of the water rate, and contrary to section eleven, it may be cut off without notice. Unless the water board shall otherwise direct, the foregoing provisions shall apply when two or more parties take the water through the same service pipe, although one or more may have paid the proportion due from him or them.”</p> <p>The annual assessments of water rates payable by the users of city water become due on the first day of April, and cover the amount due from such date up to the first day of April of the following year, and are payable in advance, within thirty days. The assessment of water rates on the premises in question for the year commencing April 1, 1886, was not paid. The plaintiff bank took a mortgage upon the premises on April 28,1885, at which time there were no unpaid water rates thereon, and upon January 13, 1887, duly entered to foreclose for breach of condition, and continued in possession of the same. On or about June 1, 1887, the plaintiff paid the full amount of water rates assessed on the premises for the year commencing April 1, 1887, and on or about August 1, 1887, was notified by the water board that unless the assessments for the year commencing April 1, 1886, were paid, the city water would be shut off from the premises. That assessment not having been paid, the servants or agents of the city, by direction of the water board, shut off the city water, on or about September 3, 1887. This was done in the street, and no trespass on the premises was committed thereby.</p> <p>After evidence had been given by both parties as to the amount of damages sustained, the defendant asked the judge to rule that upon the facts the defendant was not liable in damages to the plaintiff; the judge refused so to rule, and found for the plaintiff in the sum of fifty-sis dollars; and the defendant alleged esceptions.</p> <p>The case was submitted on briefs, on January 20,1890, and afterwards resubmitted, on September 24, 1890, on the same briefs, to all the judges.</p>

<p>Tort, with a count in contract, to recover for a loss by the fall of a barn in South Hadley. The declaration was as follows:</p> <p>“ Count in tort. And the plaintiffs say the defendants became and were tenants to the plaintiffs of a certain barn and premises of the plaintiffs, situated in said South Hadley, which said defendants hired for the storage of hay, and when so occupying and using said barn and premises as such tenants, they wrongfully and unlawfully, and without the license and against the will of the said plaintiffs, stored and filled the barn floors, passageways, and stables of said barn with meal, grain, and fertilizers, all of which were quite weighty, and having also filled the remaining space in the barn with hay and grain, so that the entire space in the barn was filled or nearly filled with material and substance much too weighty, said barn not having been constructed or calculated to sustain such a quantity of heavy grain, hay, and substances as the defendants placed therein; and said defendants so overloaded said barn as aforesaid that the floor gave way. The timbers, braces, and supports of said barn were drawn out of place and broken. The scaffold and roof were broken down, and the entire building badly damaged by reason of the enormous weight so wrongfully and unjustly and improperly placed therein by said defendants. By means of which damage said plaintiffs have lost and will lose the use and rental of said barn, and have been and will be put to great loss and expense to repair the same.</p> <p>“ Count in contract. And the plaintiffs say that the defendants became and were tenants to the plaintiffs of a certain barn and premises of the plaintiffs situated in said South Hadley, which they hired for the storage of hay, upon the terms that the defendants should during the said tenancy use the said barn and premises in a tenant-like and proper manner, and the defendants during the said tenancy used the said barn and premises in an untenant-like and improper manner, filling the stable and barn floors with a large quantity of grain, meal, and fertilizers, in addition to the large quantity of hay and grain stored by said defendants in other parts of the barn, so that said barn was overloaded, and the floors and scaffolds and roof broke down, the timbers and supports were broken, and the barn badly damaged, by reason of which the plaintiffs have lost and will lose the rental of the same, and will be put to great expense to repair the same.</p> <p>£‘ The count in contract is joined with the count in tort, it being deemed doubtful to which of these classes the above cause of action belongs, and both being for one and the same cause of action.”</p> <p>Trial in the Superior Court, before Barker, J., who, after a verdict for the plaintiffs, reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiffs purchased the land on which the barn mentioned in the declaration stood on July 19, 1887. The defendants, as copartners, occupied the barn under an oral lease from the former owners at the time of the purchase, and continued in occupation under that lease until its term expired, July 1, 1888. In June, 1888, the defendants, by an oral bargain, hired the barn of the plaintiffs for another year from July 1,1888, at a rent of seventy-five dollars. On the morning of July 31, 1888, the barn fell, its floors settling and many of its beams being broken. The plaintiffs contended and offered evidence tending to show that the barn fell from overloading, and that the weight put into 'it by the defendants was excessive, and improperly distributed. But the defendants denied this, and contended and offered evidence tending to show that the accident was caused by the defective construction of the barn. It also appeared in evidence, that the defendants remained in occupation of the barn until July 1, 1889, and that they had paid the rent for the full term before this action was brought.</p> <p>When the plaintiffs rested their case, the defendants moved for a verdict, on the ground that the action could not be maintained upon the pleadings and evidence, but the judge overruled the motion; and the defendants excepted.</p> <p>The judge submitted the case to the jury upon instructions, to which no exception was taken, which allowed them to find for the plaintiffs, if they found in fact that the fall of the barn was caused by an apparently unreasonable use of it by the defendants. «</p> <p>If the case was properly submitted to the jury, judgment was to be entered for the plaintiffs ; otherwise, such disposition of the case was to be made as might be proper.</p>

<p>Intoxicating Liquors — Common Nuisance — Agency.</p> <p>Upon the trial of a complaint under the Pub. Sts. c. 101, §§ 6,7, for keeping a common nuisance, evidence that in the defendants’ absence a single sale of liquor was made on Sunday by a young woman, not shown to have been employed by them in their business, who was then washing the floor of the premises, is insufficient to warrant a conviction.</p>

Complaint, made on October 8, 1889, to the Police Court of Newton, alleging that the defendant, at Newton, on April 8, 1889, and on “ divers other days and times between said last mentioned day and… Held: the defendant was tried, found guilty, and sentenced, and duly appealed to the Superior Court.

<p>Contract, against Hammond Reed and Curlys Lyon, for breach of a bond in the penal sum of $1,000, dated October 3, 1852, signed by them, and by others who are deceased, and given to the plaintiff town, the condition of which was as follows : “ The condition of this obligation is such, that whereas the inhabitants of the town of Brookfield have' by their vote agreed and consented that Abel W. Reed, Curlys Lyon, and Micah T. Reed, and Hammond Reed may raise the road and abutments of the bridge in East Brookfield on the road leading from the depot of the Western Railroad to Podunk not exceeding seven and a half feet above the present road, the road abutments of the bridge and railing to be built in a good, substantial, and workmanlike manner, at least twenty-one feet wide, so that all travellers may pass with safety and convenience with their teams and carriages over every part of the twenty-one feet aforesaid, and on a level to meet the banks on each side of the stream passing under said bridge, the whole to be done and completed to the acceptance of Abraham Skinner, Jeremiah Mellen, and Alphonse Howe, a committee of said town chosen for the purpose, and to keep and maintain said raised part or causeway, abutments, and railing in good repair, free of all expense to said town forever. The inhabitants of said town on their part are to build and maintain, a suitable bridge over and upon said abutments forever. Now if the said Abel W. Reed, Curlys Lyon, and Micah T. Reed, and Hammond Reed, their heirs, executors, administrators, and assigns, or any of them, shall well and truly raise and build said road, abutments, and railing as aforesaid, and keep and maintain said abutments, road or causeway, and railing as aforesaid, and in manner as aforesaid, forever, then this obligation to be void and of no effect, or else to remain in full force and virtue.” Writ dated August 30, 1888.</p> <p>Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The road referred to in the bond was a town way, properly laid out by the plaintiff town in 1840, now known as Mechanics Street in the village of East Brookfield. In 1853, the signers of the bond owning land on Seven Mile River, which this road crossed by means of a bridge, desired to build a mill, raise a dam, and improve their mill privilege, and for these purposes obtained permission to raise and did raise the abutments of the bridge, and the road approaches thereto, seven and a half feet, on condition that they should execute the bond in question. The legality and the regularity of the proceedings in raising the road were not questioned at the trial. The only question raised as to the bond was whether, under any circumstances, it was competent for the town to accept it. At the trial, the plaintiff proved the execution of the bond in pursuance of a vote at a legal town meeting of the voters of the town, and introduced evidence showing that a freshet on August 23, 1887, carried away a portion of the dam on the mill privilege, and thereby washed away about one hundred feet of the roadway to a depth of about twenty feet in the middle of the washout, and also damaged some other parts of it; that the waters of the pond were drained through this washout, and continued to run there until stopped by the building of a dam; that on September 6, 1887, the town notified the defendants in writing of the Injury by the freshet, and requested them immediately to repair the same; that, the defendants failing to make repairs to the roadway or to do anything about the matter, the selectmen of the plaintiff town employed one Moore, a civil engineer of large experience in road and bridge building, to examine the premises with the view of devising a plan to repair the highway at the place of the washout; that Moore, after examining the premises, advised them to throw a temporary bridge over the washout as the most economical plan, and the only proper one for the town to pursue under the circumstances, to provide for the travel until such time as the dam should be rebuilt, when the bridge might be removed and the break in the roadway filled with earth; and that the plaintiff adopted his advice, and put in a temporary bridge, and in October, 1889, after the dam was partially rebuilt, removed the bridge, and filled the break in conformity with the plans.</p> <p>The defendants called as a witness one Forbes, who had succeeded by mesne conveyances to the title of the signers of the bond to the mill and mill privilege, subject to the burdens imposed by the bond, and offered to prove a conversation between him and the selectmen subsequent to their adoption of the plan recommended by Moore, the engineer, at which Forbes offered to co-operate with the selectmen in repairing the dam and roadway in such a manner as would have rendered unnecessary and inexpedient the erection of the temporary bridge. It appeared, in reply to a question by the judge, that Forbes did not offer in such conversation to perform the conditions of the bond, and repair the break in the roadway in accordance with its provisions, but that he in substance offered to build a dam outside the roadway, between it and the pond, if the town would fill in the travelled part of the roadway.</p> <p>The judge excluded this evidence, with the remark that he should rule, for the purposes of this case, that if the selectmen employed a competent engineer and followed his directions, that relieved the plaintiff town of any further responsibility in the premises, and he should exclude all evidence subsequent to the adoption of the engineer’s plan except upon the point as to the competency of the engineer, and upon the question whether the selectmen carried out his directions faithfully; and the defendants excepted.</p> <p>The defendants also offered evidence to prove that a temporary way equally good for public travel as the temporary bridge could have been provided at much less expense than the bridge, and that there was no good reason why the washout could not have been filled with dirt and gravel at the time of the erection of the temporary bridge. The judge excluded the evidence; and the defendants excepted.</p> <p>The defendants also introduced evidence, that, for many years between the date of signing the bond and the breach in question, the highway surveyors of the plaintiff town, in making the ordinary repairs upon the highways of the town, repaired the portion covered by the bond, the proportionate cost of the same each year being less than a dollar. It further appeared in evidence, that in 1863 the roadway, in practically the same place, together with a portion of the dam, was washed away during a freshet, and that the road was repaired by those holding under the signers of the bond, who had assumed in deeds from them all their liabilities under the bond.</p> <p>The plaintiff introduced evidence to show that on September 29, 1889, it removed the temporary bridge, and filled up the gap where it stood with dirt and gravel, at an expense of $245.35, and that this was in accordance with the plans of the engineer, and a reasonable expenditure; and asked the judge to rule that this item of expense, so far as the jury should find it to be reasonable and necessary, could be recovered in the present action; and the judge so ruled, against the defendants’ objection ; and the defendants excepted.</p> <p>At the conclusion of the evidence, the defendants asked the judge to rule, as matter of law, “ first, that upon the evidence the action cannot be maintained; and; secondly, that the bond or contract sued on is invalid and void, so far as it relates to the perpetual repair and maintenance of the raised part of the roadway, causeway, and abutments therein mentioned.”</p> <p>The defendants also requested the following instructions to the jury: “ If you find that, since the roadway in question was raised by the defendants, in 1853, the plaintiffs have waived their rights under the contract sued on, or have abandoned the same, then the plaintiffs cannot maintain this action, and the defendants are entitled to a verdict. And, in considering whether the plaintiffs have waived their rights or abandoned the contract, you have the right to take into account the words, acts, and conduct of both parties, to consider who has repaired the road and exercised control over the same; and, in fine, to consider any of the evidence which tends to show the real intention and purposes of either party concerning the matter in controversy.”</p> <p>The judge declined so to instruct, but ruled as follows: “ 1. That the action might be maintained. 2. That the bond was not invalid. 3. That there was no evidence in the case upon which the jury would be justified in finding that there had been a waiver by the town of the conditions of the bond.” The judge further instructed the jury, that, “if the defendants neglected for an unreasonable length of time after due notice to repair the roadway in accordance with the provisions of the bond, and the plaintiff thereafter obtained the services of a competent engineer, competent to advise in such matters, who made a careful and prudent investigation of the circumstances, and recommended a plan for the repair of the roadway, which was adopted by the plaintiff, and by it carried out in a reasonable, prudent, and economical manner, then the plaintiff was entitled to recover what was thus expended by it.”</p> <p>The bill of exceptions concluded as follows: “ The jury returned a verdict for the plaintiff. The defendants being aggrieved by said rulings and refusals to rule, except thereto, and pray that their exceptions may be allowed.”</p> <p>The copy of the record of the Superior Court transmitted to this court contained the following finding by the jury: “The jury find for the plaintiff, and assess damages in the sum of nine hundred twenty-five and dollars.”</p>

<p>Perjury — Indictment — Insolvent Debtor— Examination — “ Chech."</p> <p>In an indictment for perjury, the substantive matter may be shown to be material by direct averment, or by allegations from which its materiality appears.</p> <p>An indictment for perjury against an insolvent debtor, alleging that it was material, upon his examination under oath on a proposal filed by him for a composition with his creditors under the St. of 1884, c. 236, as amended by the St. of 1889, c. 406, § 3, to ascertain whether checks were cashed by him and money collected thereon two days before the insolvency proceedings began, sufficiently shows that the matters inquired of were material to the issue, and is not defective because it does not allege that the checks and money were of any value, or were his property, or because the word “ checks ” is indefinite and uncertain.</p> <p>The Pub. Sts. e. 157, § 70, providing for the examination of an insolvent debtor in writing to be signed by the judge of insolvency and filed in the case, even if it applies to a hearing upon a proposal for a composition under the St. of 1884, c. 236, as amended by the St. of 1889, c. 406, § 3, is not exclusive, but authorizes an examination not in writing which may be proved by parol under the ordinary rules of evidence.</p>

<p>Tort, for personal injuries sustained by the plaintiff, while in the defendant’s employ, by being caught by a set screw projecting from a collar on a shaft, as he was adjusting upon a pulley on the shaft a belt by which an elevator was operated in the defendant’s print works. After the former decision, reported 150 Mass. 77, the case was tried in the Superior Court, before Staples, J., who refused to rule, as requested by the defendant, that the plaintiff was not entitled to recover, and submitted the case to the jury, who returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts, so far as material to the points decided, appear in the opinion.</p>

<p>Complaint for keeping a common nuisance, to wit, a tenement used for the illegal sale and keeping of intoxicating liquors. Trial in the Superior Court, before Thompson, J.," who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared in evidence that the defendant kept the tenement in the premises named in the complaint, and kept for sale hop beer, samples of which were sent to the State assayer, and were testified by him to contain 5.55 per cent and 5.05 per cent of alcohol at 60° Fahrenheit. The defendant offered to prove that he did not know that the hop beer contained the prohibited quantity of° alcohol, or that it was spirituous or intoxicating liquor, and believed that it was not, and did not have any information leading him to believe that it was. The judge ruled that these facts, if proved by the defendant, would not constitute a defence to the complaint.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Writ oe error to reverse a judgment of the Superior Court, rendered in an action of tort to recover for personal injuries occasioned to the defendant in error by a dog owned by the plaintiff in error. The record showed that the answer in the original action contained a general denial, and alleged that the defendant at the time of the issuing out of the plaintiff’s writ “ was and is under twenty-one years of age.” The second paragraph of the plea was as follows: “ And further says that the plaintiff was a minor, as alleged, at the time of said judgment, and that he had no probate guardian or legally appointed guardian ad litem; but that he was in fact represented and defended in said action, in which judgment was recovered, by his father and mother, and that said action was twice tried by a jury, and at both trials the father and mother were present in said Superior Court, and were represented by counsel, and defended said action on behalf of said petitioner.”</p> <p>At the hearing, before Field, J., the facts contained in the second paragraph of the plea were admitted to be true, and the judge reserved the case for the consideration of the full court.</p>

Writ oe entry to recover certain undivided parts of a parcel of land in North Attleborough. At the trial in the Superior Court, before Hammond, J., it appeared in evidence that one Moore, who died in 1888 seised of the parcel in question, in 1887 executed a deed thereof to the tenant.

Writ oe entry to recover a parcel of land in Fall River. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, which, so far as material to the point decided, was as follows. The demandant and the tenant were the owners of adjoining lots of land on Snell Street, in Fall River, and the boundary line between these lots, which formed the easterly line of the tenant’s land, was in dispute.

<p>Taxation of Domestic Animals — Abatement.</p> <p>The owner of a farm situated in two towns, his house being in one and his barn in the other, is taxable in the latter for his horses, which are habitually kept, fed, and watered in the barn, although used on the entire farm, under the Pub. Sts. c. 11, § 20, cl. 3, which provide that “horses . . . kept throughout the year in places other than those where the owners reside . . . shall be assessed to the owners in the places where they are kept.”</p> <p>It seems that an action is maintainable by a collector of taxes to recover a tax, only part of which is legal, the tax-payer’s only remedy being by an application for an abatement.</p>

Two APPEALS from orders of the Court of Insolvency disallowing claims presented against an insolvent corporation. The first case was submitted to the Superior Court on October 3, 1890, and the second case on October 7, 1890, on agreed facts, in substance as follows.

Tort, by the administratrix of the estate of James Connors, to recover for personal injuries sustained by the intestate during his lifetime while in the employ of the defendant.