Volume 153 — Massachusetts Reports

Tort for slander. The declaration, omitting an averment of special damage, was as follows: “ And the plaintiff says that the defendant publicly falsely and maliciously accused the plaintiff of the crime of forgery by words spoken of the plaintiff substantially as follows: 6 If you have any receipts different from what I have read, you have forged them.’ And the plaintiff further says, that the defendant publicly, and in the presence of other persons, demanded a certain sum…

Complaint to the Police Court of Newburyport for an unlawful sale of intoxicating liquor on Sunday, October 21, 1888, to Martin Conley. Trial in the Superior Court, on appeal, before Staples, J., who refused to rule that there was no evidence sufficient to be submitted to the jury, and, after a verdict of guilty, allowed a bill of exceptions, which, so far as material to the point decided, appears in the opinion.

Complaint to the Third District Court of Eastern Middlesex, alleging that the defendant at Cambridge kept and maintained “ a certain common nuisance, to wit, a tenement situate in said… Held: and during the time covered by the complaint, such land and buildings were used by the defendant, either alone or jointly with such other persons, for the illegal keeping and sale of intoxicating liquor. The jury returned a verdict of guilty; and the defendant alleged exceptions.

The record transmitted to this court disclosed that Nancy B. Fay filed a petition in the Superior Court, on October 28, 1888, against the town of Upton, for a jury to assess the damages occasioned to her land by the relocation of a highway in that town; that the case was tried in that court at the December sitting of 1889, and the jury returned a verdict for the petitioner and assessed her damages in the sum of twenty-five dollars ; that on May 16, 1890, the respondent town…

<p>Writ op entry, dated January 5, 1888, to recover a parcel of land in New Bedford. Trial in the Superior Court, before Pitman, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The demandant is the widow of Patrick Daley, deceased, and took a life estate in the demanded premises under his will, which was duly admitted to probate on January 2, 1880. She thereupon entered into possession of the premises by taking the rents thereof until a sale by auction of the same by the executor, on October 31,1885, to the tenant, for a fair price and in good faith, under a license issued on October 2,1885, by the Probate Court for the sale thereof to pay the debts of the testator. After this sale the tenant collected the rents. On October 29, 1885, two days before the sale, and within the time limited for taking an appeal, the demandant, by her counsel, filed in the Probate Court her appeal to the Supreme Court of Probate from the decree granting such license. This appeal was not entered at the regular rule day, to wit, the first Monday of December following, but was entered on December 29,1885, by the appellant, an agreement in writing of the counsel for the appellee being indorsed thereon, consenting to such entry. The appeal was thereafter prosecuted in the Supreme Court of Probate, and a trial had upon law and fact. On June 8, 1887, the following decree was entered in that court, and duly filed in the Probate Court: “That the petition be remitted to the Probate Court, there to be continued until the executor’s final account be settled, without prejudice to further action by the Probate Court upon said petition when said account shall be settled.” The final account of the executor has now been settled, and it appears that the premises must be sold, as the only legal mode of paying debts to the amount of $186; but the widow to prevent a sale, if the past sale is not confirmed, is willing to pay the amount herself. No further proceedings appear to have been had in the Probate Court upon the petition for license to sell.</p> <p>The tenant contended that the license was not vacated, because the Supreme Court of Probate never had jurisdiction of the appeal, and could not legally act thereon; that the sale to him was sufficient to enable him to hold the real estate; and that the writ of entry could not be maintained, and the demandant had no right of possession; but the judge ruled that said sale was without any warrant of law, and passed no title to the tenant, and directed the jury to return a verdict for the demandant; and reported the case for the determination of this court.</p> <p>If the ruling was right, the verdict was to stand; otherwise, it was to be set aside, and such order made as law and justice might require.</p>

<p>Town Way — County Commissioners — Amendment—Selectmen.</p> <p>County commissioners may allow the amendment of a petition for the laying out of a town way, which the town is alleged unreasonably to refuse to accept, by omitting an averment that the way was laid out by the selectmen “in accordance with a vote of the inhabitants of said town instructing them thereto.”</p> <p>The laying out of a town way is not invalidated because the application therefor requests the selectmen to lay out a “ public highway.”</p> <p>Under the Pub. Sts. c. 49, § 71, a report by selectmen of the laying out of a town way, duly filed in the town clerk’s office, which recites that, after notice to all parties, they went upon the “ road ” referred to in the application to see and fix the location of said “ way,” describing it by courses, distances, and monuments, is valid, and a sufficient report to the town of the laying out; and such report need not state that no damages were sustained by any one.</p> <p>A majority of the selectmen of a town may act in laying out a town way.</p>

<p>Trustee Process — Distribution — Deposit in Trust Company.</p> <p>The interest of a distributee is equitable only in money ordered by the Probate Court to be paid to him, and, upon bis refusal to receive it, deposited prematurely by the administrator in a trust company, which in its certificate of deposit acknowledges the receipt of the money for the distributee, and promises to pay the amount to the judge of probate or his assigns; and the fund so deposited cannot be reached by trustee process as the property of the distributee.</p>

<p>Married Woman — Conveyance of Separate Estate — Duress by Husband — Trust Deed — Divorce — Return of Wife's Personal Property.</p> <p>A wife, after separating from her husband, sought in equity to recover property which she had conveyed to him previously through a third person. Pending her bill, a settlement was had, and a trust deed executed by both under the advice of able counsel, her brothers, who counselled the separation, and a business man of high standing, the latter with the brothers being the trustees, by which certain property was settled upon him. After securing a divorce from him for his subsequent adultery, and after acquiescing in the settlement for five years, she brought a bill in equity to set aside the trust deed on the ground of duress of goods. Her testimony was contradicted at the hearing, and she was not an accurate witness; and the judge who heard the case found that there was no duress, and dismissed the bill. Held, that the finding was plainly right, and that the bill was properly dismissed.</p> <p>A trust deed, by which a married woman settles property belonging to her upon her husband will not be set aside because of his subsequent adultery, if the deed contains no condition that he shall continue chaste.</p> <p>Property settled upon a husband by a trust deed made by the wife after their marriage, in settlement of differences between them, does not come to him by reason of the marriage, within the Pub. Sts. c. 146, § 24, which authorizes the restoration to a divorced wife of the whole or any part of her personal estate that has come to her husband by reason of the marriage.</p>

Contract to recover $2,500, the price of certain shares of stock sold and delivered by the plaintiff to the defendants,. Trial in the Superior Court, before Sherman, J., who ruled that the action could not be maintained, and directed a verdict for the defendants; and the plaintiff alleged exceptions. The facts appear in the opinion.

Bill in equity, filed in the Superior Court, to reform a deed on the ground of mistake. Hearing before Aldrich, J., who sustained a demurrer to a cross bill filed by the defendants, and certain exceptions to the answer, and made a decree for the plaintiff; and the defendants appealed to this court. The facts appear in the opinion.

<p>Bill in equity, filed by the administratrix of the estate of Pardon A. Burlingame against Henry C. Goodspeed and Franklin Reed, for an accounting. Hearing before Devens, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>Service was had upon Goodspeed alone, and he alone defended. The intestate was indebted to Reed in a sum of money, which was subsequently fixed by a judgment recovered against his estate at $585.67., and Goodspeed, at Reed’s request, applied to him for security for the payment of the debt. The intestate thereupon delivered to Goodspeed a bill of sale of his share in a vessel, and at the same time they entered into the following agreement, dated November 8, 1881:</p> <p>“ Whereas, Pardon A. Burlingame, of Barnstable, has this day given to Henry C. Goodspeed, trustee, of Boston, a bill of sale of !§■ of the schooner Laura A. Burlingame, absolute in form, the parties thereto agree as follows: That upon payment to said Goodspeed, trustee, the amount, if any, that shall be found to be due to Franklin Reed of Bath, Maine, on account of the earnings of said schooner since the year 1873, or when said Burlingame became ship’s husband, said amount to be determined by conference to the said parties; and in case of their failure to agree, then by Horace Loring of Boston, whose finding shall be final; then upon such payment said Goodspeed is to reconvey said of said schooner to said Burlingame.</p> <p>“ P. A. Burlingame.</p> <p>H. G. Goodspeed, Trustee.”</p> <p>Subsequently, upon the death of the intestate, Goodspeed took charge of the vessel as ship’s husband, and out of the earnings thereof retained the sum of $270.01 the portion due upon the share so held by him, and notified Reed that he had that amount in his hands. He also procured insurance upon the share in the sum of $1,000, and, after a total loss of the vessel, received from the insurance company, after deducting the premium note and interest, the sum of $870.20. No request was shown on the part of the plaintiff that there should be any insurance obtained on the share of her intestate, nor was there any evidence of any custom on the part of the manager of the business to insure the various interests of other parties in the vessel, nor was any insurance procured by him on other interests in the vessel.</p> <p>The plaintiff contended that Goodspeed should now account for the sums so retained by him, and pay them into court, with interest, in order that the amount to be held for the payment of the judgment obtained Jby Reed might be ascertained and the balance paid over to her. In procuring the insurance on the interest in the schooner conveyed to him by Burlingame, and in receipting and receiving the insurance money after the loss of the vessel, the defendant described himself as “trustee.”</p> <p>The judge was of opinion that Goodspeed should be ordered to account for the sum of $270.01, with interest from the date when it was received, and should be ordered either to pay the same into court, or to obtain the indorsement of that amount on the judgment obtained by Reed; that the plaintiff was not entitled to demand of Goodspeed the amount received by him for insurance of the that there was no duty upon him, by reason of his acceptance of the bill of sale and his contemporaneous agreement, to keep this interest of the plaintiff insured for her benefit; and that it was not shown that there was any such duty by reason of the fact that he acted as ship’s husband and managed the affairs of the vessel; and ordered a decree for the plaintiff accordingly.</p> <p>The case was argued at the bar in January, 1890, and after-wards, in January, 1891, was submitted on the briefs to all the judges.</p>

<p>Five actions oe tort, under the St, of 1887, c. 270, for personal injuries occasioned to the plaintiffs by the fall of a staging. The cases were tried together in the Superior Court before Dewey, J., who allowed a bill of exceptions, which, so far as material to the points decided, was as follows.</p> <p>The plaintiffs offered in evidence the following notice, dated Springfield, August 26, 1889, and addressed to the defendant, a copy of which was signed and served upon the defendant by the plaintiff in each case :</p> <p>“You are hereby notified that I was injured, August 2d, 1889, by reason of a defective or insufficient staging and the fall of the staging at the new Catholic church building now in process of erection on Chestnut Street in this city.”</p> <p>The plaintiffs contended, and offered evidence to show, that the staging fell by reason of the unsound condition of a ledger board. The defendant contended that he was misled by the notice, and upon this point the evidence was that the defendant came to the scene of the accident soon after it occurred and assisted in talcing away the injured men; and that the fallen staging including the broken ledger board then lay in a heap upon the ground. The defendant, called as a witness by the plaintiff, testified that he saw the condition of the staging at the time as much as any one; that he did not know what defect was referred to in the notice, and had been deceived all along; that he knew what accident was referred to in the notice, and knew that it referred to this accident at this particular place; that he did not know that the ledger board was broken ; and that he knew the cause of the accident, or was presumed to know it.</p> <p>The defendant further testified, that he did not know what made the staging fall, except that the five men had been standing on the staging all the forenoon engaged in carrying heavy stone over it; that Drommie, upon being questioned, told him that Buchanan, who was engaged in handling a stone, “ called me [Drommie] to lift the stone and we got the stone so high (showing), and we let the stone fall down”; and that the fall of a heavy stone upon the staging, from the height indicated by Drommie, would have a dangerous effect upon any staging; and that the staging must have come down because of the falling of the stone upon it. There was no other evidence that a stone fell on the staging, and the plaintiff Drommie denied that he made the statement testified to by the defendant. The plaintiffs offered evidence that no stone fell on the staging.</p> <p>The defendant asked the judge to rule that the notice was insufficient. The judge refused so to rule, but ruled that there was evidence for the jury on the question whether the defendant was misled, and left to them, under instructions not objected to, the question whether the defendant was in fact misled; and the defendant excepted.</p> <p>The defendant also asked the judge to rule, that, “if any of the fellow servants of the plaintiffs, or either of the plaintiffs, not being in any relation of superintendency to the work or men, dropped a stone upon the staging, thereby subjecting the same to unusual and extraordinary strain, which was not reasonably to be expected, and the staging fell because of such unusual and unexpected strain, the plaintiffs could not recover.” The judge being of the opinion that there was no evidence on which to base the defendant’s request above quoted, if the same was correct, except as to Drommie, refused so to rule, and instructed the jury, among other things, that the defendant “ was held to the obligation of having his staging reasonably safe, suitable, and convenient for the uses and the purposes for which it was intended and designed, and to be applied. This obligation rests upon him with regard to his operatives or servants in reference to that staging, provided the staging is used by them with reasonable prudence and caution. The law does not hold him to make a staging that shall be sufficient for any negligent and careless use which the servants may make of it, any unreasonable, reckless, or imprudent use. . . . The plaintiffs have upon them the burden, as all plaintiffs have. They have the duty of convincing the jury that there has been a failure on the part of the defendant to comply with these requirements, and that through this failure they have suffered injury. . . . Not only must the defect be made to appear, but the negligence of the employer, or some one in his employ, and for whose action he is responsible; the negligence of the employer producing the effect must also be established. . . . There is another principle that comes in here. Here are five cases tried together. I said to you that Hogan, while his obligations were to have this staging in such a condition as I have described, had also a right to assume that it would be used with reasonable care and prudence by those men; and if the accident was due to a failure on the part of the men to use the staging with reasonable care and prudence, the staging being otherwise sufficient, he would not be liable. And in this respect, either of these men is liable to be affected in his right of recovery by the carelessness of any other one of Hogan’s servants, not only of the number who are here as plaintiffs, but of any who were working upon this staging. ... If the employer furnishes them with a proper staging, and through the carelessness of one of the men at work upon it an accident occurs, that would not render the employer responsible. And that principle applies in this case so far as there may be facts to sustain it. It is argued here that there is some evidence tending to show such improper use by one of the plaintiffs by dropping a stone.”</p> <p>The jury found for the plaintiff in each case; and the defendant alleged exceptions.</p>

<p>Contract — Town — Soldier — Payment of Bounty.</p> <p>The vote of a town, on May 4,1861, to pay to enlisted soldiers belonging therein, mustered into the service of the United States, a certain sum per month touring such service, was not ratified or confirmed, with respect to service beyond the period of ninety days, by the St. of 1861, c. 222, or by the St. of 1863, c. 38.</p> <p>The St. of 1886, c. 308, authorizing the town of Scituate to pay to a limited amount the claims of certain enlisted soldiers, imposed no legal obligation on the town to pay them the money; and votes of the town that the amount be raised by future assessment, that the treasurer borrow the full amount thereof, and that the selectmen draw in favor of each soldier, from whom a receipt in full was to be taken, did not constitute a contract to do so, and might be reconsidered at any time before the assessment was laid and the money raised.</p>

<p>Separate Maintenance — Probate Court — Publication of Notice.</p> <p>The Pub. Sts. c. 147, § 33, giving the Probate Court jurisdiction of a wife’s petition for separate maintenance, impliedly authorize that court to order the respondent to appear by publication of notice, and to determine the length of time which shall elapse between the last publication and the return day.</p>

Petition for a writ of mandamus, alleging that, on or about February 12, 1884, the petitioner, together with the city of Haverhill and the towns of Peabody, Beverly, Danvers, and Grovel and, all in the county of Essex, duly required the respondents to establish at some convenient place in the county a truant school, in accordance with the Pub. Sts. c. 48, § 14; that the respondents had failed and neglected to establish the school; and praying that they be ordered to do so.

<p>Petition, dated August 3, 1888, brought under the Pub. Sts. c. 176, by the Proprietors of Jeffries Neck Pasture, alleged to be a corporation duly established by law, to compel the respondent to try the title to certain lands alleged to belong to the petitioner, and situated in the respondent town. Hearing before Devens, J., who reserved the case for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Assignment of Dower — Evidence.</p> <p>An assignment of dower by the Probate Court, under the Gen. Sts. c. 90, § 8, (Pub. Sts. c. 124, § 10,) against common right in all the lands of which the husband of the dowress died seised, and duly accepted and enjoyed by her, is conclusive that dower was set out in all his real estate; and on a writ of dower afterwards brought by her, paroi evidence is inadmissible that a part of the real estate duly sold to pay debts was not taken into account by the commissioners in setting out the dower.</p>

<p>Tort. The first count of the declaration, so far as it need be stated, was as follows: “ And the plaintiff says the defendant made a great pond of water near the land of the plaintiff in said Lynn, bounded north by Walnut Street nine hundred feet; east by land of the defendant and other land of the plaintiff five hundred feet; south by land of the plaintiff nine hundred feet; and west by land of the plaintiff five hundred feet; and so maintained the same on the 17th day of July, A. d. 1886, and on divers days since, even to the date of this writ, that the waters of said pond have flowed into and upon her said land, to its great injury.”</p> <p>The answer contained a general denial, and alleged that the defendant ct made the pond declared on by authority of law, under the provisions of chapter 218 of the Acts of the Legislature of the Commonwealth of Massachusetts for the year 1871.” * Writ dated April 21, 1888.</p> <p>At the trial in the Superior Court, before Pitman, J., there was evidence tending to prove the following facts. In 1873, the defendant city constructed a reservoir for the permanent storage of water for the use of its inhabitants, by erecting a dam on land bought by it, opposite land which the plaintiff purchased in 1886. This dam was two hundred and ten feet long and sixteen feet high, and the pond when full covered an area of sixty-seven acres, and had a capacity of two hundred million gallons, the depth of water at the dam being thirteen feet. Before this dam was built, the plaintiff’s land was dry, and affected only in the usual manner by rains. After the construction of the dam and the reservoir, water percolating from the latter saturated the plaintiff’s land, which consisted in part of an orchard, and also flowed a number of acres so that it was unfit for tillage purposes. In 1885, the defendant city raised the dam nine feet, so that the reservoir when full was twenty-one feet and nine inches deep at the dam, and had a capacity of four hundred million gallons. After this increase of height and size of the dam and reservoir, the water rose still higher upon the plaintiff’s land, so saturating and flowing it that it could not be used either for tillage or building purposes, and the water remained upon it during all the seasons of the year.</p> <p>The plaintiff contended that the reservoir and dam were permanent, and, if the jury found for the plaintiff bn the question of liability, that she was entitled to recover damages for the permanent injury to her property; but the judge declined so to rule, and instructed the jury, that, if they found that the defendant was liable to the plaintiff for the injuries to her land as alleged, then she was entitled to recover damages only from the date of the conveyance to her to the date of the writ, and no more; and the plaintiff excepted.</p> <p>One Mullen, a witness for the plaintiff, was asked, on direct examination, What was' the condition of the orchard with reference to water prior to the construction of the pond in 1873 ? The defendant objected to the question, as being too remote from the time of the reconstruction of the dam in 1885; but the judge, after the defendant had stated that it was denied that any water flowed from either the original dam or the present dam upon the plaintiff’s premises, admitted the evidence merely for the purpose of showing the condition of the land prior to the erection of the original dam.</p> <p>There was evidence that the plaintiff had, on many occasions, stated to agents of the defendant city that she would bring an action against it if it did not purchase her land.</p> <p>Upon the plaintiff’s cross-examination, the defendant, for the purpose of showing a bias upon the part of the plaintiff, offered in evidence a paper under seal, of which she had possession, given her on May 28,1888, by her grantor, a corporation, and reciting the assignment and transfer unto her of all its claims for injury to her land, by way of trespass or otherwise, caused by the defendant city or its agents, which accrued while it owned the land; and authorizing her to sue, and to settle in any way, in its name, all of such claims, for her own use and at her own cost and expense. The judge excluded the evidence; and the defendant excepted.</p> <p>It was agreed that all the facts stated and found by the court in the case of Wilson v. Lynn, 119 Mass. 174, might be taken as proven in this case. The defendant asked the judge to rule that this action could not be maintained other than by petition. The judge refused so to rule; and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and both the plaintiff and the defendant alleged exceptions.</p>

<p>Four actions of tort. Two cases were brought by each plaintiff, as administrator, for causing the death of his child at a crossing of the defendant’s railroad in Malden, and the other two cases were brought by each individually for the loss of the services of the children, and for their funeral expenses, respectively. The cases were tried together in the Superior Court, before Barker, J., who directed a verdict in each case for the defendant, and allowed a bill of exceptions, the substance of which appears in the opinion.</p>

<p>Sale of Land — False Representations.</p> <p>False representations made by the seller to the buyer of an enclosed lot of land, that the seller himself had measured one of the lines and that it contained a certain number of square feet, are. actionable, if the buyer relies upon them and is more or less induced by them to purchase, although he is familiar with the lot, and understands that he is buying only the land enclosed.</p> <p>The advertisement of a sale by auction of an enclosed lot of land gave its contents in square feet and its easterly line as 130 feet long. At the auction on the premises before the sale, and after the reading of the advertisement, the auctioneer stated that be and the owner’s husband, who acted as her agent and assented to the statement, had measured the land; that its contents were as advertised, except that the east line was but 107 feet long; and that a warranty deed would be given. The buyer, who was familiar with the lot and understood that he was buying the land as enclosed, believed the statement, and was more or less induced thereby to purchase. The east line was actually but ninety-five and a half feet long, and the other lines varied somewhat, and the contents considerably, from those advertised. The seller did not offer a deed describing the premises in accordance with the auctioneer’s statement, but only a deed describing them correctly. Held, that an action would lie against the seller to recover a part payment of the price made by the buyer.</p>

<p>Insurance — Reinsurance of Risks — Assent to Alienation — Limitation of Action — Recovery of Expenses of Suit.</p> <p>If a policy of insurance provides that any assignment thereof without the assent of the insurance company shall be void, the insurer, upon reinsuring all its risks upon the same basis and subject to the same conditions as in the original contract of insurance, may, as between itself and the reinsurer, assent, in the absence of a stipulation to the contrary in the contract of reinsurance, to an assignment of the policy which results in no increase of the risk.</p> <p>An action upon a policy of reinsurance was held not to be barred by the limitation period fixed in the original policy for bringing suit against the insurer.</p> <p>In an action upon a policy of reinsurance to recover, besides the insurance money, the expense of an unsuccessful defence of a suit, of which the reinsurer had notice, and of the successful defence of another suit, of which the reinsurer had no notice, the former alone was held recoverable.</p>

<p>Master and Servant — Defective Condition of Premises — Risk of Employment Due Care.</p> <p>If an employee complains to Ills employer, but not on his own account, of the defective condition of premises on which he is employed, and, upon an assurance, which does not induce him to remain, that the defect shall be remedied, continues in the employment, with full knowledge of the risk, and is injured by reason of such defect, he must be taken to have assumed the risk, or not to have been in the exercise of due care, and cannot recover against the employer for his injuries.</p>

<p>Corporation— Ultra Vires — Borrowing of Money.</p> <p>A corporation, formed under the Pub. Sts. c. 115, § 2, for encouraging athletic exercises, has the power to borrow money for building a club-house upon land leased by it, within the limit fixed by § 7, which provides that such a corporation may, to a limited amount, “ hold real and personal estate, and may hire, purchase, or erect suitable buildings for its accommodation.”</p>

<p>Tort, under the Pub. Sts. c. 112, § 212, by the administratrix of the estate of Charles K. June, for causing his death. At the trial in the Superior Court, before Thompson, J., there was evidence tending to prove the following facts.</p> <p>The intestate was run over and killed, on November 17, 1887, by an express passenger train on the defendant’s railroad, near its station in Allston. This station is situated on the south side of the railroad, which at this point runs from east to west and consists of four main tracks and a side track. The most northerly main track was used for west-bound trains, and the track next south for east-bound trains. About three hundred and fifty feet west of the station and on the north side of the tracks, stretching along the railroad for the distance of a thousand feet, were situated the defendant’s car shops for the building and repairing of its cars, the most easterly being the freight car shop so called, and the most westerly the paint shop. The westerly end of the paint shop was situated on a public street running north and south, and crossing the railroad at grade. Doors in this end of the paint shop led directly therefrom through a gate to the street, and another door upon the south side of the building opened directly upon the defendant’s yard and tracks. The side track above mentioned was the most northerly of all the tracks, and extended the entire length of the car shops. The station platform extended one hundred and fifty feet west of the station, and from the end of the platform a plank walk four feet wide continued in the same direction at a lower level for about two hundred feet along the south side of the tracks, to a point opposite the east end of the freight car shop, then turned and crossed first the main tracks and then the side track at a level, and ended at a door leading into the shop. Inside of this door was a flight of steps, at the foot of which was a sign, “ Office upstairs,” leading to the office of the master car builder in charge of the shops. This walk was intended for the use of the defendant’s employees in wheeling supplies between the station and the shops. Directly opposite the station, on the north side of and parallel to the four main tracks at a distance of four feet from the most northerly of these, stood a board fence about six feet high, which extended westerly to a point near the plank walk above mentioned, and then turned at a right angle and extended in the same direction as the walk across the side track towards the freight car shop. At this point the side track, after crossing the plank walk, passed through a gate in the fence into the car shops yard. Over this gate, and in plain sight of any one using the walk, was the following: “ Notice. All persons found trespassing on these premises are liable to arrest, and will be prosecuted according to law.” The master car builder purchased all supplies used in the shops, including paints. The intestate, who was a manufacturer and seller of paints, came without invitation to the paint shop at about a quarter past four on the afternoon of the day of the accident, and sought to sell some paints to the foreman in charge of the shop. After a short conversation with him, the intestate said that he wished to take the next train to Boston, and inquired when it would start. Upon being told that a train would go at about ten minutes of five, the 'intestate left the shop by the south door opening upon the tracks, and walked along between the car shops and the side track towards the station. When he reached the plank walk, an eastbound freight train was passing along on the second main track from him and covered the crossing. He walked beyond the plank walk, and upon reaching the angle of the fence turned to the right and passed out upon the northerly main track. At this time a west-bound express train then due was approaching the station running at the rate of from thirty-five to forty miles an hour, its speed constantly increasing. The engineer of this train first saw the intestate when within three hundred feet of him, as he came around the corner of the fence and stood facing the train between the rails, and thereupon began to sound the whistle sharply, but did not put on the air brakes until within twenty-five feet of him. At the sound of the whistle the intestate looked up towards the approaching train and started towards the freight train which was still passing, then turned towards the fence, then again towards the freight train, then back again towards the fence, by which time the engine struck him. To one walking along, as did the intestate, between the car shops and the tracks, a west-bound train approaching on the most northerly main track would be more or less obscured by the projecting angle of the fence, according as he walked along near the buildings or that track. There was no flagman, nor were there sign-boards or gates, at the place where the plank walk crossed the tracks.</p> <p>At the close of the evidence, the judge ruled, (1) that there was no evidence that the intestate at the time he was killed was a passenger; (2) that there was no evidence of any unfitness, gross negligence, or carelessness on the part of the defendant’s servants or agents; (3) and that there was no evidence on which the jury could find that the deceased was in the exercise of due diligence. The judge thereupon ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract to recover $3,000, on a certificate of membership issued by the defendant, a beneficiary association, to Oliver P. Lyon, for the benefit of the plaintiff. Trial in the Superior Court, without a jury, before Blodgett, J., who found for the defendant, and reported the case for the determination of this court. The material facts appear in the opinion.</p>

<p>Personal Injuries — Negligence.</p> <p>In an action for personal injuries to the plaintiff’s intestate, which ended in his being stifled by the smoke from a fire in the defendant's steamship, there was evidence that he was at work with others in a compartment between decks when the fire broke out there; that he delayed a little in trying to escape, seemingly to get something; that the other men ran up a movable ladder through a hatchway to the main deck; that as the last two or three men came up, the hatchway was nearly covered, and soon after was completely covered, by a tarpaulin, in obedience to an order to cover the hatches; that one of the men standing near to the officer who gave the order said, “No, there is a man there,” and again, “It is a shame to cover the hatches and stifle the man”; that the officer replied, “ I don’t care a damn; cover the hatches ”; that a fireman some time after the hatches were closed heard knocking in the compartment; and that, after the fire was put out, the intestate was found dead near the hatchway, with his coat wrapped about his head. Held, that the jury would be justified in returning a verdict against the defendant.</p>

<p>Equity Practice — Finding of Single Justice — Fraud and Undue Influence.</p> <p>The rule that a decree in equity of a single justice will not be reversed on appeal in matters of fact, unless clearly erroneous, applies when the principal witnesses testify orally before him, although part of the evidence, taken by a commissioner, is read to him, and part is documentary; but is less applicable when all the testimony is taken by a commissioner, or is documentary, or both.</p> <p>The decree in equity of a single justice, directing the reconveyance by the defendant of real estate, on the ground that it was conveyed to him by his fraud and undue influence practised upon the plaintiff, a widow sixty-six years of age and in feeble health, was held, upon a full report of the evidence where the principal witness with others testified orally before him, not only not to be clearly erroneous, but to be justified by the evidence.</p>

Tort, by the administrator of the estate of Robert Healy, to recover for personal injuries sustained by the intestate. At the trial in the Superior Court, Barker, J., ruled that there was no evidence of due care on the part of the intestate to go to the jury, and, after a verdict for the defendant, the plaintiff alleged exceptions, which appear in the opinion.

<p>Complaint — Averment of Time — Arabic Numerals — Variance — Obstructing Police Officer — Exceptions.</p> <p>The day of the month in an allegation of time in a complaint may be expressed in Arabic numerals.</p> <p>A complaint alleging that the defendant " upon the body of Jos. T. B. . . . did make an assault, and him, the said Joseph T. B., did then and there beat,bruise, and wound, . . . and other wrongs to the said Joseph T. B. then and there did,” sufficiently shows that Jos. is the abbreviation of Joseph, and that the person assaulted was Joseph T. B., and proof of the latter does not consitute a variance. At the trial of a complaint for obstructing a police officer, there was evidence that the officer had been detailed to keep the streets clear, under a city ordinance the validity of which was not questioned, while a circus procession was passing along; and that the defendant sought to prevent the removal of his horse and wagon from the street. The defendant, who contended that, as a traveller, he had a right to remain there, excepted to refusals to order a verdict of not guilty, to give instructions predicated upon the hypothesis that he was at the time a traveller, and also to give other instructions which were given in substance. Held, that the defendant had no ground of exception.</p>

<p>Motion, filed January 21,1890, for leave to enter a writ dated September 10, 1889, and returnable to the Superior Court at Plymouth on the first Monday of November, 1889. Lathrop, J., denied the motion, and ruled, as matter of law, that the court had no power to allow the writ to be entered, and reported the case for the determination of this court.</p>

<p>Board of Examiners — Return of Votes—Mandamus — County Commissioners.</p> <p>The board of examiners of election returns ordered a town clerk, under the St. of 1885, c. 229, § 1, to transmit a new return of the votes cast in the town for a county commissioner in place of the return first" made by him, which did not show where or when the election was held, or that the record was of a meeting of the inhabitants of the town, unless inferrible from the facts that it purported to be certified by persons described as “ selectmen of the town,” naming it, and was attested by a person described as “ clerk of said town.” The new return, besides having the defects of the first return, was not certified by any persons purporting to be selectmen, and the name of the town nowhere appeared in it. A petition for a writ of mandamus was filed to compel the board to receive the returns and count the votes with those returned from the other towns in the county, and to declare the election of the petitioner as county commissioner, and to notify him thereof. Held, that the board was not bound to receive or ’ treat either return as valid; and that the petition was properly dismissed.</p> <p>It seems that mandamus will lie to enforce the right of a person elected county commissioner to act as such, and to prevent an intruder from performing the" duties of the office.</p>

<p>Personal Injuries — Loss of Life — Negligence of Railroad — “ Train ” — Employers' Liability Act.</p> <p>In an action against a railroad company for personal injuries occasioned to an employee by being crushed between a moving car and a car left standing on another track so near as to leave but five inches between them, it is a question of fact for the jury whether it is negligence for its employees thus to leave a car standing; and if such negligence is found, the act of so leaving it will, in the absence of any other intervening cause, be deemed the proximate cause of the injury.</p> <p>A locomotive and one or more cars, connected together and run upon a railroad, constitute a “train,” within the St. of 1887, c 270, § 1, cl. 3, giving a right of action against an employer for personal injuries caused by the negligence of an employee in charge of a “locomotive engine or train upon a railroad.”</p> <p>In an action, under the St. of 1887, c. 270, § 1, cl. 3, against a railroad company for personal injuries sustained by a brakeman by being crushed between a moving car and a stationary car so near it on another track as to leave a space of less than five inches between them, there was evidence that freight cars were distributed and made up into trains in an extensive freight yard of the defendant by a day gang and a night gang, each having a conductor and a switching engine; that the injured brakeman belonged to the night gang, and -was assisting when injured in making up a freight train to which the moving car was attached; that the night was dark, and be attempted to get upon the moving car in the usual manner of brakemen; and that the day gang had during the afternoon placed cars upon the track where the stationary car was. Held, that whether the stationary car was left where it was through the negligence of a person in charge of a train, and whether the brakeman was in the exercise of due care, were for the jury.</p> <p>Since the passage of the St. of 1887, c. 270, § 2, as well as before, an action cannot be maintained, under the Pub. Sts. c. 112, § 212, as amended by the St. of 1883, c. 43, for the death of an employee caused by the negligence of a fellow servant,</p>

Tort, under the St. of 1887, c. 270, § 2, by the widow of Edward M. Sullivan, for causing his death. Trial in the Superior Court, before Hammond, J., who ordered a verdict for the defendant, and reported the case for the determination of this court.

<p>Right of Way by Necessity — Implied Reservation.</p> <p>If the owner of a tract of land cut off from any public highway by the land of another has a defined right of way appurtenant to the tract over such other land to a highway, and, upon a railroad corporation’s acquiring title to the servient estate for depot purposes, releases to it by deed all his title and interest in the right of way, describing it by metes and bounds, including “ all rights of crossing said depot lot as a private way, if any I have or may appear to have,” no right of way by necessity to the highway will remain to him out of the right of way thus described and released; and his heirs, upon the taking of a part of the tract for railroad purposes, cannot recover damages for the deprivation of a right of way by necessity to the portion of the tract remaining.</p>

<p>Personal Injuries — Dangerous Pitfall — Independent Contractor.</p> <p>If the owner of premises under his control employs an independent contractor to do work upon them, which from its nature is likely to render the premises dangerous to persons who may come upon them by the owner’s invitation, the owner, by reason of the contract, is not relieved from the obligation of seeing that due care is used to protect such persons.</p>

Bill in equity, by the administrator de bonis non with the will annexed of Thomas H. Chase, against the executor of the will of Ann L. Chase and the Danvers Savings Bank, to secure the payment of a deposit alleged to belong to the estate of Thomas H. Chase. The case was reserved by Revens, J., on bill and demurrer, for the consideration of the full court, and was as follows.

<p>Municipal Corporation — Street Lighting — Electric Light Plant.</p> <p>Cities and towns have no authority under existing statutes to erect and maintain works for the manufacture and distribution of electric light for lighting the public streets, or for this and the additional purpose of furnishing light to their inhabitants.</p>

<p>Bill in equity, filed in the Superior Court, to secure the discharge of certain mortgages alleged to be a cloud upon the plaintiff’s title. Hearing before Dewey, J., who dismissed the bill, and reported the case for the determination of this court, in substance as follows.</p> <p>Joshua C. Kent died on July 10, 1872, leaving a will, which, with the exception of parts merely formal, was as follows:</p> <p>“ Second. I give, devise, and bequeath to my beloved wife, Mehitable Kent, all the estate, both real and personal, that I die seised and possessed of, giving her full power to sell and convey the same by deed (part or all of it), and the proceeds thereof are to be used for her comfort, and otherwise as she may think proper.</p> <p>“ Thirdly. After the decease of my said wife all that remains of my estate, not specifically disposed of bjr her, is to be used for the benefit of my two sons, Joshua Kent and Oscar F. Kent, their heirs and assigns, and my request is that some suitable person may be appointed trustee to receive and take charge of said estate, which is to be used for their benefit as said trustee may think proper.”</p> <p>The testator’s wife survived him, and was duly adjudged insane, and a guardian was appointed for her, in January, 1884. One of the testator’s sons, Joshua, died in 1879, never having been married, and Oscar F., who was divorced from his wife in 1881, died in 1884, leaving one child, the plaintiff. The widow continued to occupy the real estate of which the testator died seised, and the guardian at different times, to raise money for her proper and reasonable support, mortgaged such real estate in fee, under license duly obtained of the Probate Court, to the defendant, which mortgages are subsisting and undischarged. After the death of the widow, the plaintiff took possesssion of the real estate as the sole surviving heir of the testator, and contended that the mortgages were void, and should be discharged as a cloud upon his title.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the board of assessors of the respondent city, in assessing taxes upon real estate belonging to the petitioner for the years 1887 and 1888. Hearing before Devens, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Fire Insurance — Arbitration — Limitation of Action — Waive:--Interest.</p> <p>A cause of action will not accrue to the assured, — upon a policy of fire insurance which provides that differences as to the amount of the loss shall, at the written request of either party, be submitted to arbitration, and that no action shall be maintainable therefor until an award has been made, — until after the making of an award or a waiver of arbitration; and such arbitration may be waived orally.</p> <p>The limitation period in a policy of fire insurance for bringing an action against the insurer may be waived orally.</p> <p>Interest will be allowed on the amount recovered on a policy of fire insurance from the date of the writ only, if the amount was not made payable at a fixed time after the loss, or upon the happening of a certain event, and was not liquidated or wrongfully withheld by the insurer, and no demand was made for its payment before the bringing of the action.</p>

<p>Husband and Wife — Alienation of Wife’s Affections — Evidence.</p> <p>In an action for procuring and enticing the plaintiff’s wife to be separated from him, the defendant may disprove any intent, in advising the wife, to cause a separation, and show that his advice was honestly given.</p> <p>Evidence of a plaintiff’s statement, that he was going to make as dirty a case of it as he could for one of the defendants, is admissible to show bias and to discredit his testimony.</p>

<p>Tort. The declaration was in four counts. The first count was for the conversion of one car-load of corn, containing about seven hundred bushels, and of two and one quarter tons of bran. The second count, which was alleged to be for the same cause of action as the first, was for wrongfully causing the plaintiffs to lose the value of the car-load of corn. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Upon the first count the following facts appeared in evidence, or were admitted. The plaintiffs agreed to sell the car-load of corn to one Cousins, to be his upon payment, and allowed him to take possession of the corn upon giving his check to the plaintiffs therefor. When Cousins was allowed to take possession of the corn, the plaintiffs knew that, in the nature of his business, some of it was to be forthwith ground into meal and delivered to customers before it would appear in due course whether the check was good or not. They deposited the check in their bank, and in due course payment was refused by the bank upon which it was drawn, there being no funds of Cousins to meet the check before or after it was given. The defendant caused the corn to be attached, in an action brought by him against Cousins, and afterward took an assignment or bill of sale of it from him. Some of the corn was ground before the check was dishonored, and a part or all of the corn came into the possession of the defendant, and was disposed of by him as his own. The plaintiffs took the check in the regular course of business, and nothing was said to induce them to accept a check instead of cash.</p> <p>The plaintiffs asked the judge to give, among others, the following instructions: “ If the jury find that there was a waiver on account of the representation that the check was good, and it turned out not to be good, then the plaintiffs had the right to rescind the sale and to recover the corn or the value of it, no matter with what purpose the corn was put into possession of Cousins; that the corn came into possession of the defendant, part of it as meal, makes no difference.”</p> <p>The judge refused so to instruct, but instructed the jury, among other things: “ If you find that it was the understanding of the parties, not only that Cousins should have the corn as his corn, but that he was to have it for the purpose of grinding it into meal before the check, in the ordinary course of business, would be dishonored, then I instruct you that, as matter of law, the plaintiffs cannot claim this corn, because the agreement that it should be transferred into meal before they, in the usual course of business, would ascertain whether the check would be dishonored or not, is entirely inconsistent with the theory that it was to be their corn until the check was paid, because they could not know.”</p> <p>The jury returned a verdict for the defendant upon the first count; and the plaintiffs alleged exceptions to the above rulings and refusals to rule.</p> <p>The jury found for the plaintiffs upon the second count, and the bill of exceptions recited that the plaintiffs were dissatisfied with the amount thereof, but did not disclose that they saved any exceptions to any ruling made with respect to it.</p>

Tort, for an assault and false imprisonment. Trial in the Superior Court before Hammond, J., who ordered a verdict for the defendant, and reported the case for the determination of this court, in substance as follows. The plaintiff was arrested on an execution, dated October 11, 1887, and issued upon a judgment rendered against him in favor of the defendant. The affidavit required by the Pub.

Contract on a judgment. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, in substance as follows. The amount sought to be recovered was $13,956.13, which included a judgment for $13,488.03 obtained in 1884 by the plaintiff against the defendant in the Supreme Court of the State of New York, and $468.10, costs of suit.

Complaint under the Pub. Sts. c. 57, § 5, as amended by the St. of 1886, c. 318, § 2, to the Municipal Court of the Charles-town District in the city of Boston, alleging that the defendant, on March 27, 1890, “ did have in his possession milk to which a foreign substance had been added, to wit, annatto coloring matter,” with intent unlawfully to sell the same.

<p>Railroad Commissioners — Highway — Grade Crossing — Certiorari — Mandamus.</p> <p>The St. of 1882, c. 155, and the St. of 1887, c. 282, providing for the construction of a bridge and avenue across the Charles River between the cities of Boston and Cambridge, authorized the city of Cambridge to lay out the avenue on its own side of the river at grade over the Boston and Albany Railroad without the concurrence and assent of the city of Boston; and the board of railroad commissioners had no authority to order the city of Cambridge to construct an overhead crossing over the railroad.</p> <p>Certiorari, and not mandamus, is the proper remedy, if a board of public officers, when required by statute to perform a certain duty, do not refuse to act, but proceed to perform it in a manner founded upon an erroneous construction of the statute.</p>

<p>Game Laws — Seizure without a Warrant — Conversion.</p> <p>A deputy of the game commissioners, who, acting under their orders merely, and intending to enforce the game laws, but without any warrant or an order from any court, seizes game unlawfully exposed for sale, is liable to the person in illegal possession thereof for its conversion.</p>

<p>Contract to recover $2,000 on a certificate of membership in a beneficiary association. Trial in the Superior Court, before Pitman, J., who ruled that the action could not be maintained, and ordered a verdict for the defendant; and reported the case for the determination of this court.</p>

<p>Bill in equity, filed in the Superior Court, to recover $2,500 on a certificate of membership in the defendant association, an Illinois corporation, issued to Pliny M. Cobb, for the benefit of his wife, Nellie L. Cobb. At the trial in the Superior Court, before Hammond, J., a jury go which issues were submitted answered the second issue in favor of the defendant, and the remainder in favor of the plaintiff; and the judge reported the case for the determination of this court. If certain rulings and instructions, to which the plaintiff excepted, were correct, the bill was to be dismissed; otherwise, the verdict upon the second issue was to be set aside and a new trial granted. The material facts appear in the opinion.</p>

<p>Bill in equity, filed in the Superior Court, to establish two mortgages held by the plaintiff upon a parcel of land in Methuen, as against an attachment placed thereon by the defendants. After the former decision, reported 150 Mass. 372, the case was sent to a master, and, after the coming in of his report, was heard by Dewey, J., who ordered a decree for the plaintiff; and the defendants appealed to this court.</p>

<p>Tax — Exemption — Literary Purpose.</p> <p>Real estate, which a corporation organized for the education and religious instruction of children owns and permits to be used as purely incidental to the management of a parochial school situated on another’s adjoining property, and entirely controlled and supported by others than itself, is not exempt from taxation under the Pub. Sts. c. 11, § 5, cl. 3.</p>

<p>Railroad — Riding on Freight Train — “ Passenger ” — Custom.</p> <p>A person who rides without paying any fare in the caboose of a freight train, by the invitation or license of the conductor, cannot recover against the railroad company for personal injuries caused by a collision with another train.</p> <p>A rule of a railroad corporation, forbidding the carrying of passengers upon freight or construction trains without a pass, does not apply only to passengers paying fare, but applies to a former employee riding on a freight train by invitation of the conductor.</p> <p>The testimony of freight conductors on a railroad, that they had, contrary to rule, themselves ridden on freight trains without a pass, and had permitted former employees of the railroad- company so to ride, is, in the absence of knowledge thereof on the part of the officers of the company, insufficient to establish a custom which will render it liable to such an employee so riding as to a passenger.</p>

<p>Contract to recover for the support of a pauper in a State lunatic hospital. Writ dated February 1, 1890. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, which appear in the opinion.</p>

<p>Probate Court — Will—Charitable Bequest — Foreign Statute.</p> <p>Under the Pub. Sts. c. 127, § 3á, the Probate Court has jurisdiction of a petition by the administrator of one of the next of kin of a testator for instructions as to the construction of the will and for an order restraining the administrator de bonis non with the will annexed from paying legacies until the determination of the questions involved.</p> <p>The New York St. of 1860, c. 860, which provides that “ no person having a husband, wife, child, or parent shall, by his or her last will and testament,” make a charitable devise or bequest of more than one half of his or her estate after the payment of debts, applies only to a testator or testatrix who is an inhabitant of that State.</p>

<p>Electric Lighting — Location of Posts — “ Shall”—„Mandamus.</p> <p>The Pub. Sts. c. 109, which provide, in § 2, that lines of electric telegraph may be constructed along highways without incommoding the public, and, in § 3, that the municipal authorities “shall” specify in writing where the posts maybe located, are not imperative, as extended by the St. of 1883, c. 221, and the St. of 1889, c. 398, “ so far as applicable ” to “ lines for the transmission of electricity for the purpose of lighting,” in requiring a board of aldermen of a city to provide for the location of the posts of an electric lighting company.</p>

<p>Constitutional Law — Intoxicating Liquors — Original Package — Indictment — Evidence.</p> <p>The Pub. Sts. c. 100, prohibiting the sale of intoxicating liquors, except as authorized therein, is not rendered inoperative by the omission of an express exception in favor of liquors imported from other States and offered for sale in the original packages.</p> <p>An indictment for unlawfully exposing and keeping for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth, without having any license, appointment, or authority, need not negative that such liquors were imported from another State and exposed and kept for sale in the original packages.</p> <p>At the trial of an indictment for unlawfully exposing and keeping for sale intoxicating liquors with intent to sell the same, evidence of police officers as to what they had seen, in connection with the conduct and management of the place where it was alleged the offence was committed, within seven months of the times alleged, is not so remote that it may not properly he admitted in the discretion of the presiding judge.</p>

<p>The first case was a complaint to the Fourth District Court of Eastern Middlesex, made on July 24,1889, alleging that the defendant, on April 1, 1889, and on divers other days and times between that day and the day of making this complaint, at Stoneham, unlawfully “ did keep and maintain a certain common nuisance, to wit, a tenement situate in said Stoneham, then and on said other days and times there by said William Gay used for the illegal sale and illegal keeping for sale of intoxicating liquor, to the great injury and common nuisance of all the peaceable citizens of said Commonwealth there residing, inhabiting, and passing, against the peace of said Commonwealth and the form of the statute in such case made and provided.”</p> <p>In the Superior Court, on appeal, before the jury were impanelled, the defendant renewed a motion, made by him in the district court, to quash the complaint for the following reasons: “First. Said Fourth District Court had no jurisdiction of said offence. Second. That said Stoneham, where and when said offence is alleged, was not a part of said Fourth District Court, or within its jurisdiction, but was within the jurisdiction of the First District Court of Eastern Middlesex, chapter 312, Statutes 1889. Third. That said complaint and proceedings under the same are insufficient and void.” Bishop, J. overruled the motion ; and the defendant excepted.</p> <p>The defendant thereupon, also before the jury were impanelled, filed another motion to quash the complaint for the following reasons : “ First. Because there is no averment that said illegal sale and keeping of intoxicating liquors was contrary to or in violation of the laws of the United States. Second. Because there is. no averment that said tenement at said Stone-ham was not used for the delivery or sale of intoxicating liquors imported or brought into said Commonwealth from some foreign nation or some other of the United States than this State in the original parcels or packages for sale, keeping, or delivery by the owner under the laws of the United States.” The judge also overruled this motion ; and the defendant excepted.</p> <p>The defendant was then tried, and, among other evidence introduced by the government, there was evidence that, within the time alleged in the complaint, persons who were sober were seen to go into the tenement in question and subsequently to come out in an intoxicated condition; and that on another occasion, also within the time alleged, other persons were seen merely to come out intoxicated. At the conclusion of the evidence, the defendant requested the judge to give the following instruction, among others, to the jury: “That seeing intoxicated persons, if coming out of defendant’s tenement, is immaterial, unless the government proves such persons were sober when they went in.” The judge refused to give this instruction, and submitted the case to the jury with instructions not otherwise excepted to ; and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Certiorari — County Commissioners — Crossing of Way by Railroad — Separation of Grade.</p> <p>A landowner in a city, the direct approach to whose estate by a public street from the principal business section of the city is cut off by the separation at a crossing of the grades of the street and a railroad, and by a discontinuance of the street within the railroad location, resulting in a serious and permanent injury to the estate as well as to others in the vicinity, cannot maintain a petition for a writ of certiorari to quash the proceedings of the county commissioners in abolishing the grade crossing, either on his own behalf or because of an injury to the city.</p> <p>Under the Pub. Sts. c. 112, §§ 120, 129, 130, county commissioners, in ordering the separation at a crossing of the grades of. a railroad and a highway, may change the highway to a place different from that of the existing crossing, if the change is not greater than is reasonably necessary in order to do away with the crossing at grade.</p>

<p>Writ oe ENTRY to recover a parcel of land in Nantucket. Plea, nul disseisin. Trial in this court, before Q. Allen, J., who, before verdict, reported the case for the consideration of the full court. The facts appear in the opinion.</p>

Contract, on the following agreement under seal, dated October 17, 1872, signed by the defendant: “ Know all men by these presents, that I, F. W. A. Bergengren, of Gloucester, county of Essex and Commonwealth of Massachusetts, in consideration of twenty-five hundred dollars to me paid by J. R. Smith, of Wolf borough, New Hampshire, physician, the receipt whereof is hereby acknowledged, one thousand dollars cash, and fifteen hundred dollars in notes signed by said Smith and…

<p>Bill IN EQUITY for instructions. Holmes, J. reserved the case for the consideration of the full court. The facts appear in the opinion. The case was submitted on briefs in November, 1890, and afterwards, in February, 1891, was resubmitted on the same briefs to all the judges.</p>

<p>Replevin, against the assignee in insolvency of John P. Randall and George H. Randall, copartners, who were adjudged insolvent debtors on March 14, 1890, to recover a stock of furniture mortgaged by them to the plaintiff on February 1, 1890. At the trial in the Superior Court, before Dewey, J., the jury returned a.verdict for the defendant; and the plaintiff alleged exceptions, which, so far as material to the points decided, appear in the opinion.</p>

<p>Repair of Way—Raising of Grade — “ Damage ” — Surface Watei— Access.</p> <p>The owner of land adjoining a town way “ sustains damage in his property,” and is entitled to compensation, within the Pub. Sts. c. 52, § 15, if by a raising of the grade of the way in making repairs thereon, besides an obstruction to his access to the land and way, surface water is made to flow upon the land, or to remain thereon, rendering it wet, unhealthy, and less valuable.</p>

<p>Probate Bond — Jurisdiction of Probate Court — Instructions to Trustee.</p> <p>The questions whether trustees under a will shall give bonds payable to the judge of probate under the Pub. Sts. c. 141, and perform the other duties required of trustees who are obliged to give such bonds, are primarily for the Probate Court; and a bill in equity will not lie to obtain the instructions of this court concerning them.</p> <p>A trustee cannot maintain a bill in equity to obtain the instructions of the court as to the distribution of a trust fund, before it is paid over to him.</p>

<p>Chattel Mortgage — Delivery — Sale of Property — Fraudulent Intent.</p> <p>If, by an arrangement between the parties to a mortgage of personal property, the mortgagor is to leave it with the town clerk for record, and to direct him thereafter to forward it to the mortgagee, the acceptance thereof by the clerk for transmission as well as for registration will complete the delivery to the mortgagee.</p> <p>The ofíence of selling mortgaged personal property without informing the purchaser of the existence of the mortgage, and without the written consent of the mortgagee, is complete without proof of a fraudulent intent other than that to be inferred from the mortgagor’s knowingly doing the prohibited act.</p>

<p>Constitutional Law — Municipal Corporation — Appropriation — Public Use.</p> <p>The Legislature has no power to authorize a city or town to appropriate money for the erection of a building to be devoted in part to the use of a post of the Grand Army of the Republic so long as such post shall exist as an organization.</p> <p>The city of Brockton was authorized by the St. of 1890, c. 432, to appropriate a sum of money for the erection of a memorial hall, to be used and maintained “ as a memorial to the soldiers and sailors of the war of the Rebellion." The city council, assuming to act under this statute, passed an order appropriating such sum for the purpose of erecting a “ memorial hall and public library building, ... a portion of said building to be for the use of Fletcher Webster Post G. A. R. No. 13, so long as it shall exist as an organization,” the plans of the building to be approved by “ the trustees of said G. A. R. Post.” Held, that the purpose expressed in the order was not a public purpose, for which a town or city could raise money by taxation, and that the order, even if within the statute, was invalid.</p>

Tort, for personal injuries occasioned to the plaintiff by the caving in of a gravel bank, through the alleged negligence of the defendant city or that of its agents and servants. At the trial in the Superior Court, before Staples, J., the following facts were agreed.

<p>Bill in equity, filed February 11, 1888, to recover damages, and to prevent the defendant from manufacturing and selling certain medicines under the names of “Dr. Spencer’s Queen of Pain ” and “ Spinal Paste or Salt Rheum Cure,” from using certain trade-marks for the same, and from libelling the plaintiff. The case was heard by 0. Allen, J., and reported for the consideration of the full court, and was as follows.</p> <p>No request was made at the hearing that the evidence should be taken down for the purpose of revising the judge’s findings of fact. The judge directed the testimony.to be limited to the following questions: “ 1. What transfers or conveyances there were to the plaintiff and to the defendant, showing the titles under which the parties respectively claim. 2. Whether the parties respectively compound their medicines and remedies from the formulas of Dr. Spencer, and what those formulas are. 3. The dates when the parties respectively began to use the labels and alleged trade-marks.”</p> <p>The following facts were in evidence or were admitted. Dr. Spencer made the medicines in question according to secret formulas of his own, and sold them under the names above mentioned. He died in July, 1883, and Mrs. Spencer, his administratrix, a few days before her own death, on May 4, 1884, said to the defendant that it was her wish that the defendant should have the “ Queen of Pain ” and the “ Spinal Paste,” and the trade-marks, labels, bottles, and everything that went with them, and at the same time handed to the defendant the formulas for these medicines, and the defendant took them. A few days after the death of Mrs. Spencer, her sister, a Mrs. Stetson, orally transferred to the plaintiff a formula in the handwriting of Dr. Spencer for the “ Queen of Pain ” and “ Spinal Paste.” On June 6, 1887, Alanson Borden, administrator de bonis non of the estate of Dr. Spencer, having already ratified the transfer by Mrs. Spencer to the defendant, sold to the defendant “ two dies for stamping bottles, boxes, and any other form of package of Dr. Charles L. Spencer’s Spinal Paste or Salt Rheum Cure, being the same used by said Spencer in his lifetime for that purpose.” On December 16,1887, Borden, as such administrator and as executor of the will of Mrs. Spencer, in consideration of two bun dred dollars, sold the formulas for the “ Queen of Pain ” and the “ Spinal Paste ” to the plaintiff, “ saving and expressly excepting from the sale, transfer, and conveyance aforesaid all the rights and privileges in respect to the subject matter thereof heretofore given or granted by the said Charles L. Spencer, or by myself or any other legal personal representative of either the said Charles L. Spencer or the said Sarah T. Spencer in that behalf.”</p> <p>The judge found that “it was the intention of Mrs. Spencer that the defendant should have the right to use both formulas, with the labels, wrappers, etc. serving to identify the remedies”; and that “there was no fraud on the part of the defendant in obtaining or using the formulas, labels, or wrappers, or so called trade-marks.”</p>

<p>Oral Agreement to convey Land — Statute of Frauds — Specific Performance — Agency— Tenancy in Common.</p> <p>On a bill in equity for specific performance, it appeared that the plaintiff and her six sisters, including the defendant, all of whom were tenants in common of several parcels of land, made an oral agreement, by which the plaintiff was to pay to each a fixed sum, and they were to convey to her their right and title in and to one parcel, on which the plaintiff resided; that after three of them had conveyed to her their respective interests, and each had received the sum agreed, she offered the same amount to the defendant, requesting a release, which was refused; that thereafter, and before the bill was brought, the other two released their rights to her, in accordance with the agreement; and that the defendant offered, for the protection of the plaintiff’s title, to surrender any claim she might have to avoid the conveyances made to her by the other sisters of their respective fractions of the parcel in question, and to recognize their validity. Held, that any injury that might result to the plaintiff by a failure of the defendant to carry out her agreement was insufficient to take the contract out of the statute of frauds (Pub. Sts. c. 78, § 1, cl. 4); and that the bill must be dismissed.</p>

<p>Foreign Corporation — Similarity of Name in Business — Injunction — Equity Practice.</p> <p>The St. of 1889, c. 452, § 2, which prohibits a foreign corporation from carrying on “a banking, mortgage loan and investment or trust business within this Commonwealth in or under a name ” previously used by a domestic corporation, must be construed to mean a banking business, a mortgage business, a loan and investment business, or a trust business.</p> <p>The St. of 1889, c. 452, providing, in § 2, that no foreign corporation shall carry on certain businesses named under a name already in use by a domestic corporation, or so nearly identical as to be misleading, and, in § 3, that any violation thereof shall “ on petition be enforced by injunction,” imports that the business engaged in by the two corporations must be the same, or so similar as to mislead the public, and that the party to bring the petition is the party aggrieved by the action of the foreign corporation.</p> <p>The International Loan and Trust Company, a Missouri corporation, transacted business in Boston under the name of the “International Loan and Trust Company of Kansas City,” both with and without the addition thereto of “ Missouri ” or of “'Mo./' and dealt in investment securities generally, chiefly its own debenture bonds, in the stocks and securities of other companies, and in mercantile paper which it had discounted in Kansas City and had forwarded to Boston for rediscount. It also received money on deposit, for which it issued certificates of deposit, as well as money which it invested for customers. The “ International Trust Company,” a Massachusetts corporation, also transacted in Boston under its corporate name a banking and a loan and investment business. Held, on a petition in equity under the St. of 1889, c. 452, § 3, by the domestic against the foreign corporation, that the latter was engaged in a banking and a loan and investment business within § 2 of that statute, and similar to that engaged in by the former, but that it had a right to do so under the name actually used by it; and that an injunction would issue only to prevent it from carrying on such business here under its corporate name.</p>

Tort, for personal injuries occasioned by the bite of a dog. At the trial in the Superior Court, before Thompson, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Tort, for personal injuries occasioned to the plaintiff by falling from a staging while in the employment of the defendants, who were builders and contractors. Trial in the Superior Court, before Blodgett, J., who ordered a verdict for the defendants, and reported the case for the determination of this court. The facts appear in the opinion.</p>

Two complaints, the first for unlawfully keeping intoxicating liquors for sale in Danvers upon June 17, 1890, the second for there keeping a common nuisance, to wit, a tenement used for the illegal keeping and sale of the same, between March 25 and July 7,1890. The cases were tried together in the Superior Court, before Sherman, J., who allowed a bill of exceptions in substance as follows.

<p>Indictment for the larceny of certain 46 promissory notes, of the amount and of the value in all of three hundred and fifteen dollars.” At the trial in the Superior Court, before Barker, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.</p>

Complaint to the Municipal Court of the South Boston District in the city of Boston, for keeping intoxicating liquor with intent unlawfully to sell the same on September 14,1890. At the trial, on appeal, in the Superior Court, before Barker, J., the jury returned a verdict of guilty; and the defendant alleged exceptions to the admission of certain evidence, the nature of which appears in the opinion.

Replevin of furniture. The writ described each defendant as “ trustee ” of an encampment of the “ Independent Order of Odd Fellows.” At… Held: after the hall was fitted up for their use went into occupation thereof under a lease dated February 1, 1873, providing, among other things, that all “ furniture and property of any kind which may be on the premises during the continuance of this lease is to be at the sole risk and hazard of the lessees ”; that while occupying the…

<p>Tort, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, at the freight yard in Lynn, upon the Eastern Division of the defendant’s railroad. At the trial in the Superior Court, Pitman, J. refused to rule that the plaintiff could not recover upon the evidence, and submitted the case to the jury, which returned a verdict for the plaintiff; and the defendant alleged exceptions, which, so far as material to the points decided, appear in the opinion.</p>

<p>Tort, by the administratrix of the estate of Elisha McCreary, for causing his death upon the Eastern Division of the defendant’s railroad. Writ dated October 24,1889. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, which, so far as material to the points decided, is as follows.</p> <p>The intestate, while in the act of crossing the defendant’s railroad at the Eastern Avenue crossing, so called, in Swampscott, fell down between the rails in an epileptic fit, and was run over and instantly killed by an express passenger train of the defendant. The travelled way called Eastern Avenue approached the westerly side of the defendant’s location at the crossing in question, but had not been laid out over it. The plaintiff contended that the public had acquired a right by prescription to use such crossing, and upon this point the evidence was as follows.</p> <p>One Phillips, called as a witness by the plaintiff, testified, on direct examination, that he was a resident of Lynn, and had been familiar with the Eastern Avenue crossing a good many years; that the Eastern Railroad was first operated about fifty years ago; that the parcel of land where this crossing is situated was divided by the railroad when it was constructed, and was subsequently owned by his (witness’s) brother; that a crossing was built on each side of the railroad bed three or four feet higher than the level of the adjacent land; that a filling was made on each side and planks placed between the rails by the Eastern Railroad Company; that there was a good grade on each side to get upon the railroad, and that about 1878 the planking was removed; that the public used this crossing from 1838 to 1875; that they hauled manure across there; that he had seen “ teams go across there after they took the planking up; there could n’t anything but light teams go across; there was no other way to get across ”; and that “ a year ago no team went across there, because they could not go; the railroad dug a trench on each side of the two tracks so we could not go across with a team; foot passengers went across there; foot passengers have been going across since the railroad was cut there in 1838; teams ceased crossing about a year ago when the trench was dug; prior to that, teams had been going across all the time since the railroad was laid out.” On cross-examination, he testified that Graves, the owner of the land when the railroad crossed the parcel, made some arrangement with the company by which he should be allowed to go back and forth between his two pieces of land; that Graves was a farmer, and used to haul manure across to put on his crops; that he remembered a fence along the line of the railroad, across what is called Eastern Avenue, on one side, with a gate in it, put there by his (witness’s) brother to prevent cattle from getting upon the land; that that gate was kept shut; that Graves had bars on one side that he kept up, and that his brother, the subsequent owner of the property, kept bars there, but people kept taking them down, and cattle got in, and then he put up a gate; that within a few years the railroad had dug trenches on both sides of the road, — deep ditches, — too deep for a team to get across; that foot people could go across well enough; that the trenches kept filling up; that during the last four or five years the defendant had repeatedly erected palisades along the line of its location and across the ends of the avenue, but the witness had taken some of them down; that for some time its agents had done what they could to obstruct travel there ; that Eastern Avenue has not been worked as a highway upon the eastern side of the railroad; that the land there constitutes a part of the witness’s farm, and is open country,—merely level land; that, in spite of the obstructions of the railroad company, there is no trouble for a foot passenger to go over the road; and that, if a man wishes to cross at this spot, he can struggle over.</p> <p>Owen Gaffney, called by the defendant, testified that he was section-master, having charge of the section of the railroad which included the Eastern Avenue crossing; that he had had charge of the section since 1850; that Graves and other parties went through to the narrow piece that was on the other side of the track; that there was one piece cut off from Graves’s farm by the road; that, when the bars were down, some little market wagons would go across there; that during the last forty years there were gates in the first place, and Graves used to keep the gates locked; that he could not say how long gates or bars had been there, but that when the gates were rotted down, bars were put up; and that, after the bars, posts made of sleepers were set up.</p> <p>On cross-examination, he testified that for the forty years that he had known this place people had been going back and forth over it, by climbing the fence; that when there was no fence there, he and his men would nail it up and fix it as soon as they could; that for forty years people had been going to this farm ; and that he never knew any team to go there but Mr. Graves’s team for his farming use. Then followed the question put to him, “ In forty years ? ” to which he replied: “ 0, no, not forty years; twenty-five years after we had the boarded gates. The people went the same as he did, as far as the land was concerned, but there was- no through right of way there; the people would keep going across, the same as they will anywhere; the street was graded, but there was a high knoll on each side coming to the track, very high; there was a temporary grade; there was no grading for people to go over, because there was no right to go there; that he supposed Mr. Graves kept it graded for his own purposes.”</p> <p>Other testimony was introduced by the defendant, to the effect that obstructions had been erected by the railroad company during the last four or five years.</p> <p>The judge refused to rule, as requested by the defendant, that there was no evidence which would authorize the jury to find that the plaintiff’s intestate was rightfully upon the defendant’s premises, but as to the prescriptive right acquired by the plaintiff as one of the public, instructed the jury, among other things, as follows:</p> <p>“ The plaintiff cannot recover, unless the deceased was rightfully crossing the track at the time of the accident, in the exercise of such prescriptive right. ... A prescriptive way, or a way by prescription, may be acquired over a railroad. There are certain requirements to the acquisition of such a way. In the first place, what sort of use gives rise to the acquisition of this right of way ? It may be defined as the public use of a way, as a way, actual, general, adverse, continuous, and uninterrupted for more than twenty years. What is an actual use needs no definition, and the same is true of a general use ; but the word ‘ adverse ’ may suggest different thoughts to different minds. [Here followed a quotation from the opinion in the case of Deerfield v. Connecticut River Railroad, 144 Mass. 325, beginning with the words near the top of page 338, “ To acquire a right of way,” etc., and concluding with the paragraph, which quotation the judge stated he adopted as the definition of “adverse.”] So that the user must be actual, general, adverse; it must also be peaceable, continued, uninterrupted, on the part of the public, for more than twenty years. Now here was a crossing that was constructed in 1838; there was planking put down at that time, and there was a grading up upon each side to the level of the railroad, and the claim is on the part of the plaintiff that a prescriptive right of way was acquired by the lapse of more than twenty years between the time when the kind of user to which I have referred began and its discontinuance. In 1878, or somewhere near that time, the planking was removed, and then, four or five years ago, the palisades were driven down or put down, and they were from time to time removed and renewed, and about a year ago there were trenches cut upon each side, by which travel by carriages was effectually stopped. The statement is, that after the removal of the planking light carriages still continued to go over there, and that after the palisades were put down, or after these posts were put down, there was foot travel still going there. But this is the point. Was the right acquired before the railroad took up the planking, before the railroad put down the posts, before the railroad cut the trenches ? Had the right been acquired by the public by prescription before 1878, by the user to which I have referred, to use that crossing for the purposes of public travel ? If the right was acquired, it could not be taken away by interruptions and by obstructions put there afterwards by the railroad. If the right was acquired, it cannot be taken away by or destroyed by any acts such as have been shown here; but it is for you to consider all these acts as bearing upon the question whether there has been any acquisition of the right.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Sale of Real Estate — Statute of Frauds — Memorandum — Party Plaintiff— Practice.</p> <p>A memorandum of the sale by auction of real estate, signed by the purchaser, which refers to the “ seller,” but neither names nor describes him, and shows that the auctioneers named therein acted only in that capacity, is not sufficient to satisfy the statute of frauds (Pub. Sts. c. 78, § 1, cl. 4).</p> <p>If real estate at the time of, its sale by auction is owned by the former owner’s devisees, or by their grantees, and within the time allowed the purchaser for taking a conveyance title thereto is conveyed, for convenience in conveying it, to a third person having no interest therein, such person cannot maintain an action in his own name against the purchaser to enforce the contract.</p>

<p>Insolvent Debtor — Property covered by Assignment — Equitable Life Estate.</p> <p>The interest of an insolvent debtor in property held for him in trust under a will which provides that no part of the property “ shall, before the payment or conveyance or transfer thereof ” to him, “ be assignable or attachable or trusteeable, or in any way or manner liable for or liable to be taken for any debt, liability, or contract ” of his, “ or be applied in any way or manner to the payment thereof,” will not pass to his assignee in insolvency, under the Pub. Sts. c. 157, §§ 44, 46, which define the “property ” and “estate” of a debtor which will pass to his assignee.</p>

Bill in equity, filed on October 4,1889, by J ames McCarthy and Mary McCarthy, against the Supreme Lodge New England Order of Protection, Sarah J. Judge, and Margaret Quirk, to secure the proceeds of a certificate of membership issued by the defendant corporation to John J. McCarthy. At the hearing, before Field, C. J., the following facts appeared in evidence.

<p>Sale of Real Estate — Statute of Frauds — Memorandum — Designation of Purchaser.</p> <p>A memorandum of the sale of real estate, which does not contain the name of the purchaser or any designation of him whatever, is insufficient within the statute of frauds (Pub. Sts. c. 78, § 1, cl. 4).</p>

<p>Defective 'Division Fence — Death of Animal — Proximate Cause.</p> <p>The owner of pasture land, who is hound by an assignment under the Gen. Sts. c. 25, (Pub. Sts. c. 36,) to maintain a division fence, is not liable for the death of a colt, the property of the owner of the land fenced against, which strays therefrom into the pasture because of the insufficiency of the fence, and, falling into a narrow depression or hole therein, is unable to get up, and there struggles until it dies.</p>

<p> Administrator—License to sell Real Estate. </p> <p>The Pub. Sts. c. 142, § 18, providing that no sale of real estate by an administrator “ by license of court ” shall be avoided because of any irregularity in the proceedings, apply only to sales authorized by the license; and the sale by an administrator of real estate beyond what is necessary to pay debts and charges of administration, under a license to sell only what is necessary for those purposes, is unauthorized, and is not cured by the statute, and is void.</p>

<p>Indictment, in sixteen counts, for obtaining money by false pretences. The second count alleged that the defendant, at Taunton, on January 2, 1889, “ unlawfully, knowingly, and designedly, fraudulently did falsely pretend to the Metropolitan Life Insurance Company, a corporation established and incorporated by the laws of the State of Hew York, (by which said insurance company he, the said Richard J. Dunleay, was then and there employed to solicit and obtain applications to said insurance company for insurance, for a compensation to be paid him therefor by the said insurance company, the amount of which compensation was conditioned among other things upon the number of applications for insurance so obtained by him, the said Richard J. Dunleay,) that a certain paper writing, purporting to be an application for insurance by one Martin Mangion to be issued by the said insurance company to the said Martin Mangion, and which paper writing, to wit, said application, was then and there delivered by the said Richard J. Dunleay to the said insurance company, with intent to obtain from said insurance company the compensation that would be due him, the said Richard J. Dunleay, upon the acceptance by the said insurance company of the said application for insurance, had been theretofore signed, executed, and delivered to him, the said Richard J. Dunleay, by the said Martin Mangion, the person named in said application for insurance, as a proposition and application for insurance to be issued to the said Martin Mangion by said insurance company; by means of which false pretences the said Richard J. Dunleay did then and there, unlawfully, knowingly, and designedly, fraudulently obtain and receive from the said insurance company a large sum of money, to wit, the sum of five dollars in money and one bank check of the value of five dollars, of the money, goods, and chattels of the said insurance company, with intent then and there the said insurance company thereby to cheat and defraud of the same. Whereas in truth and in fact the said paper writing, to wit, the said application for insurance, had not theretofore been signed, executed, or delivered by the said Martin Mangion, the person named in said paper writing, or by any person whatever, to the said Richard J. Dunleay, all of which the said Richard J. Dunleay then and there well knew.” The other counts were all identical in form and language with the second count, with the exception that the name of the alleged applicant for insurance, and the date of the application, were different.</p> <p>In the Superior Court, before pleading to the indictment, the defendant filed a motion to quash the indictment for the following among other reasons: “4th. It is nowhere alleged in said indictment that the pretence therein set forth was believed by the party alleged to be defrauded, or that he was ignorant of its falsity. 5th. It is nowhere alleged in said indictment that the party alleged to be injured relied on said pretence, or was induced thereby to part with the sum of money therein set forth. 6th. It is not alleged that said application was ever accepted by the insurance company, or relied on by them. 7th. The contract of the defendant with said company is not sufficiently set forth to show that the pretence alleged with regard to said application was the cause inducing said company to part with their money.” Thompson, J. overruled the motion. The defendant was then tried and found guilty; and alleged exceptions.</p>

<p>Personal Injuries — Negligence —Dangerous Machine.</p> <p>In an action for personal injuries sustained by the plaintiff, a boy about sixteen years old, while in the defendant’s employ, there was evidence that he was set to work upon a machine for skiving leather, consisting of two small, slowly revolving horizontal cylinders, and a knife just back of them; that his work was to serve the pieces of leather to the cylinders, to be taken up by them and drawn through against the knife; and that the cylinders and their movements were in plain sight, and their operation and effect, in drawing in against the knife whatever came between them, were obvious and constantly demonstrated in their use. The plaintiff testified that the defendant told him that, if he got his fingers in, he would get hurt, and he must look out for his fingers; that he knew that, if he put his fingers where the leather went, they would get caught as soon as the leather would; but that he did not realize the danger that his whole hand might be drawn in. Held, that there was no evidence to warrant a verdict for the plaintiff.</p>

<p>Contract upon a policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, (St. 1887, c. 214, § 60,) against loss by fire. At the trial in the Superior Court, before Mason, C. J., the plaintiff submitted the case upon the report of an auditor, and the judge ordered a verdict for the defendant, and reported the case for the determination of this court. If upon the facts a finding would be warranted for the plaintiff, the verdict was to be set aside and a verdict entered for the plaintiff for a sum agreed; otherwise, the verdict was to stand. The facts appear in the opinion.</p>

<p>Abortion — Evidence — Dying Declarations— Statute.</p> <p>The St. of 1889, c. 100, providing that in a criminal prosecution on the Pub. Sts. c. 207, § 9, for attempting to procure a miscarriage, the dying declarations of the woman shall be admissible in evidence, if her death is alleged to have been the result thereof, is prospective only in its operation, and does not apply to an indictment found after its passage for such an offence theretofore committed.</p>

Contract against a surety on a replevin bond. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, the substance of which appears in the opinion.

Tort, to recover damages for injuries resulting from the bite of a dog. Trial in the Superior Court, before Thompson, J., who reported the case for the determination of this court. The following facts appeared in evidence, or were admitted. The dog in question was the property of one Rogers, who had been in the employ of the defendant for a number of years and lived with him dpon his farm.

<p>Contract for goods sold and delivered. Trial in the Superior Court, without a jury, before Laihrop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff sought to recover against the defendant as an undisclosed principal. The defendant was the lessee of a hotel in Boston, of which from April to September, 1888, one Palfrey was the manager and apparent proprietor. The plaintiff, a dealer in cigars, sold a table and cigars to Palfrey, and charged them on his books to him, crediting him with various amounts paid on account. The goods were resold by Palfrey in the defendant’s hotel, excepting the table, which at the time of the trial was in the possession of the defendant. Palfrey testified that he did not enter the hotel under a contract of agency with the defendant, but with the intention of becoming proprietor, and that the defendant had agreed to assign to him the lease of the premises; that in all his dealings with the plaintiff he had represented himself to be the proprietor of the hotel; and that he bought the goods for his own benefit as such proprietor. The defendant testified that about July 1,1888, he requested Palfrey to render an “account,” and, upon Palfrey’s refusing so to do or to pay him any more money, tried to get him to leave the hotel; and that about the middle of August following he ejected Palfrey from the hotel by force. There was evidence that Palfrey then brought a bill in equity against the defendant asking for specific performance of his alleged contract for the assignment of the lease of the hotel, and that Palfrey, failing to get an injunction to restrain the defendant from assigning the léase to any one else, gave up the possession of the hotel, upon being paid some money, near the close of September. The defendant admitted that, at the hearing upon the bill in equity, he testified that Palfrey entered the hotel as his manager and agent, and that he never gave him authority to act in any other capacity. The plaintiff testified that he believed from the representations of Palfrey that he was the proprietor of the hotel, and knew nothing to the contrary until August, at the hearing above mentioned. The plaintiff sold goods to Palfrey on August 25 and September 1,1888, charging them to him in the same account with the goods previously sold and charged to him.</p> <p>The defendant asked the judge to rule as follows: “1. The defendant is not liable, on the facts proved. 2. That if Palfrey did not make the purchase of goods declared on in fact in the exercise of his authority as agent, and did not represent himself as agent, the defendant is not liable. 3. If the court finds that the plaintiff charged the goods to Palfrey, believing him to be the principal, yet, after finding out the principal, and learning for certain that Palfrey had been discharged as an agent, if he had ever been one, if he still continued to sell Palfrey after such knowledge, and charge Palfrey in the same account as before, the defendant is not liable for the goods sold after such knowledge, or for those sold before. 4. As the principal was undisclosed, if any, the plaintiff could not charge the defendant after the agency had terminated to the knowledge of both Palfrey and the defendant.”</p> <p>The judge refused to rule in accordance with the first, second, and third requests, the second because of the words “ and did not represent himself as agent,” but adopted the fourth ruling requested, and made the following findings of fact. In July, August, and September, 1888, the plaintiff was a dealer in cigars, and the defendant was the proprietor of a building in Boston known as the International Hotel. In April, 1888, the defendant placed one George W. Palfrey in charge of said hotel, as his agent and manager. Palfrey continued to act as such agent and manager until some time in September, 1888. The contract for the goods, the price of which is sought to be recovered in this action, was made by an agent of the plaintiff with said Palfrey, and the goods, consisting of cigars and a table, were delivered to him, and were charged to him on the plaintiff’s books of account. The cigars were bought to be resold to the guests of the hotel, and the table to be used in the smoking-room of the hotel. Until August 28,1888, the plaintiff’s agent supposed said Palfrey to be the proprietor of the hotel. On the day last mentioned, said agent ascertained that the defendant was the proprietor, and that Palfrey was his agent and manager.</p> <p>The judge ruled, “ that the plaintiff is entitled to recover for the goods sold prior to August 28,1888, after deducting the credits set forth in said declaration, and allowed interest from the date of the writ on said balance,” and found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort, under the St. of 1887, c. 270, § 1, cl. 3, to recover for personal injuries occasioned to a brakeman employed by the defendant upon a freight train, through the alleged negligence of the conductor in charge of the train. Trial in the. Superior Court, before Lathrop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence that, on the evening of October 15, 1888, the plaintiff, who was employed by the defendant as a brakeman upon its Providence division, was at work upon a freight train, made up of empty coal cars called dump cars, which left Boston about seven o’clock for East Providence; that besides the engineer and fireman on the locomotive engine, there were upon the train a conductor and several brakemen; that the conductor was in general charge of the train, and the brakemen were subject to his orders; that the plaintiff was stationed at the forward end of the train, a part of his duty being to attend to the coupling and uncoupling there; that among other duties of the conductor was that of taking the numbers of all cars attached to the train and of reporting the same, and of informing the brakemen of any danger resulting from any accident to the train; that all the brakemen on the train were equipped with lanterns, and when the train reached Jamaica Plain it was so dark that they were obliged to use them at their work; that at that point the engine was detached from the train and backed upon a side track to pick up some empty cars, and in so doing the draw-bar upon one of them was broken ; that thereupon the conductor, with the assistance of a brakeman other than the plaintiff, chained this car to the engine; that at this time the plaintiff was at the rear of the train, and knew nothing of the breaking of the draw-bar or of the chaining of. the car to the engine; that shortly afterwards, and before the train started again, the conductor, while on his way to the rear of the train, met the plaintiff and spoke to him expressing his surprise that he was not at the forward end of the train, but omitted to tell him of the broken draw-bar; that the train started on its way, and when it reached Hyde Park the conductor jumped off to take the numbers of certain empty cars which were to be attached to the train, and which stood there upon a side track reaching nearly to Readville, the next station; that meanwhile the train proceeded to Readville, which was a short distance beyond; that, after some cars were left on a side track at Readville, the plaintiff, who was at the time in the second car from the engine, was told by one of the other brakemen, without any specific orders from the conductor, to “Pull your head-pin and come back to Hyde Park after these empties ”; that the plaintiff should properly, under the circumstances, have uncoupled the engine and the first car from the rest of the train for that purpose, but, being ignorant that the draw-bar was broken, he stepped into the car chained to the engine, and, throwing his right leg over the front end of it, stood with his right foot upon an iron foot-rest attached to the car; that, without looking down to see, with the aid of his lantern, whether the draw-bar was all right, he called out to the engineer to back the engine so that he could pull out the coupling pin easily; and that thereupon, as the engine was backed quickly, the tender came in close contact with the front end of the dump car and crushed the plaintiff’s leg, causing the injuries in question. It was admitted that the accident would not have happened but for the broken draw-bar; and that the plaintiff was injured in attempting to uncouple the car from the engine so that the engine might go and do something else.</p> <p>On November 13,1888, .the plaintiff gave the following notice to the defendant:</p> <p>“ The Old Colony Railroad Company is hereby notified that on the fifteenth day of October, 1888, when within one hundred yards northerly from the railroad station at Readville, Mass., on that part of the said Old Colony Railroad Company formerly known as the Boston and Providence Railroad Company, I was injured by my right leg being caught between a dump car and. tender of an engine, I, at the time, standing on the dump car, which was the first car of a train of cars to which said tender of said engine was attached. Said injury was caused by reason of a broken draw-bar on the dump car, which allowed the dollyvarden on the tender of the engine to run up against the end of the dump car, and which caught and injured my leg. This notice is given under the provisions of chapter 270 of the Acts and Resolves of Massachusetts of the year 1887, and of chapter 155 of said Acts of the year 1888.”</p> <p>The plaintiff offered the above notice in evidence, and the judge admitted it, against the defendant’s objection; and the defendant excepted. The judge at the close of the evidence refused to order a verdict for the defendant, and the jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Three motions, by Charles L. James and Eugene B. Abbot, to the Superior Court, for the acceptance of the awards of arbitrators under the Pub. Sts. c. 188. The Southern Lumber Company, Samuel M. Winchester, and J. Edgar Line objected that the court had no jurisdiction of the awards, because the same had not been returned into court within the time required by law. Hearing before Mason, J., who overruled the objection, and allowed exceptions alleged by the Lumber Company and by Winchester and Line, to the exclusion of certain evidence. The cases appear in the opinion.</p>

<p>Personal Injuries — Negligent Construction — Fall of Building — Departure from Architect’s Plan.</p> <p>If a corporation in erecting a building departs from the architect’s plans, and its president actively interferes in directing the removal of stays, thus impairing the strength of the structure, and the building falls under circumstances showing that it was not strong enough, an action against the corporation for personal injuries thereby caused to one employed by it in the work of construction is properly submitted to the jury.</p>

Complaint under the bastardy act, Pub. Sts. c. 85, to the District Court of East Norfolk.

<p>Tobt, for personal injuries occasioned to the plaintiff by a defect in Beachmont Avenue.</p> <p>At the trial in the Superior Court, before Pitman, J., it was admitted or appeared in evidence that Beachmont Avenue was a public highway extending from that part of Boston called Breed’s Island to the town of Revere across Belle Isle Creek; that this creek was a salt water stream from 180 to 190 feet wide at high water, and at low tide only from three to five feet wide, having at low water a well defined channel of that width navigable by row-boats ; and that the defect in question was located, and the plaintiff sustained her injuries, at a point on the avenue between the middle line of the channel of Belle Isle Creek and the northerly or Revere shore of the same. The plaintiff contended that the defect was located within the limits of the city of Boston, and requested the judge to rule that the boundary line between Boston and Revere was on the northerly shore of Belle Isle Creek, and that the town of Revere did not extend to the thread of the stream. The judge refused so to rule, and instructed the jury that, for the purposes of this case, the boundary line between Boston and Revere was the thread of the stream, or the middle of the channel of Belle Isle Creek.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Devise in Trust — Personal Property— Contingent Interest —Per Capita and Per Stirpes— “ Issue.”</p> <p>If personal property is given by a will to trustees, in trust to pay the income to a person during life and on the death of such person to pay the principal sum to his issue then living, the intention is presumed to be that such issue shall include all lineal descendants, taking per stirpes, unless some other language of the will discloses a contrary intention.</p> <p>A testator by his will gave $10,000 in trust, the income to be paid to his son’s wife for life; and at her death the principal to go to her husband, “if then living, and if not, to her issue. And if she should survive her said husband and should leave no issue, I give this $10,000 at her death to all my children then living, and the issue of any deceased child; such issue to take as by right of representation the shares of their respective parents.” The son’s wife, after surviving her husband, died, and left surviving two sons and a daughter, the sole child of a deceased daughter, and the children of one of the two sons, having had no other issue living since the testator’s death. Held, that by her “ issue ” was meant issue living at her death taking by right of representation; and that her two sons and her daughter, and the child of her deceased daughter, would take the principal in equal shares.</p>

<p>Bastardy Complaint — Accusation by Complainant—“Travail" — Exhibition of Child to Jury.</p> <p>The accusation by a woman of a man as the father of her bastard child, made at any time after the pains of her labor have begun and before the delivery of the child, is an “ accusation in time of travail,” within the Pub. Sts. c. 85, § 16.</p> <p>At the trial of a complaint under the bastardy act, Pub. Sts. c. 85, the child may be exhibited to the jury without regard to its age.</p>

<p>Toet for personal injuries occasioned to the plaintiff while employed by the defendants in their tannery. The second count of the declaration, which was framed on the St. of 1887, c. 270, § 1, cl. 1, alleged that the plaintiff, while in the employ of the defendants and in the exercise of due care, “sustained •personal injury because of the falling in and upon him of the roof of said tannery and the piping and fixtures connected therewith and placed thereunder. And the plaintiff says that at the time aforesaid the condition of said tannery and the roof thereof was defective and unsafe, and that said defective and unsafe condition of said tannery and roof had not been discovered and remedied owing to the negligence of the defendants and of the person in the service of the defendants intrusted by them with the duty of seeing that said tannery and roof were in proper condition.”</p> <p>Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, which, so far as material to the points decided, is as follows.</p> <p>There was evidence that, on March 12, 1888, the plaintiff, while employed by the defendants, in passing through the tannery in going from one job to another in the course of his employment as directed by their foreman, was struck down and injured by the falling upon him of the roof of the building and of a steam-pipe attached to the inner side thereof; and that an accumulation of snow on the roof, which the foreman had negligently failed to remove, caused the roof to fall in.</p> <p>The plaintiff offered in evidence a notice, directed to the defendants under date of March 28, 1888, which was as follows : “ Please take notice that Charles Dolan, of Ayer, Mass., while at work in your employ was injured on the twelfth day of March, A. D. 1888, in the leach-room of your tannery at Ayer, Mass., by reason of the falling in of the roof thereof and the falling of the steam-pipes therein, said roof and said steam-pipes both falling upon said Dolan. Corcoran and Parker, Attorneys for Charles Dolan.”</p> <p>The defendants objected to admission of this notice, because it was not signed by the plaintiff in accordance with the St. of 1887, c. 270, § 3, as amended by the St. of 1888, c. 155. The judge overruled the objection, and the defendants excepted.</p> <p>The case was submitted to the jury upon instructions, to which no exception was taken. At the close of the charge, the judge said to counsel, “ Is there anything that either of you gentlemen have to suggest with reference to what I have said?” The counsel for the defendants replied in the affirmative, and gave to the judge a request for the following instruction: “ If the jury find that the building fell on account of the weight of snow upon it, and the defendants were negligent in not shovelling off the same within proper time, the plaintiff cannot recover under the declaration in this case.” The judge refused so to rule, and the defendants excepted.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>Sale of Stock — Evidence for Jury.</p> <p>In an action to recover the price of shares of stock, alleged to have been sold by the plaintiff to the defendant, the plaintiff’s evidence showed that she originally bought the stock of the defendant, who then agreed to buy it back again for the same price; that afterwards she asked him to take it back, and, upon his saying that he would arrange to take it, delivered it to him, and received from him a paper writing setting forth his agreement “ to dispose of and turn into cash ” the stock as soon as possible, and “ to get for her the amount she paid for it ”; that subsequently he stated to her that “ he liad decided to take the stock himself, and would have the money in a few days,” to which she “ made no objection”; and that thereafter she repeatedly asked him for the money, and he as often told her that he would soon have it ready for her; and that he had never paid her for the stock. Held, that the evidence was sufficient to warrant a jury in finding for the plaintiff.</p>

<p>Two COMPLAINTS against the defendant, to the Police Court of Haverhill, one for keeping a common nuisance from February 1 to May 23, 1890, and the other for an illegal sale of intoxicating liquor on July 31 following. The cases were tried together in the Superior Court, on appeal, before Sherman, J., and, after a verdict of guilty in each case, the defendant alleged exceptions, which appear in the opinion.</p>

<p>Sale of Standing Wood — License — Administrator’s Sale of Land — Remedy.</p> <p>A purchaser of standing wood and timber, after severing the trees from the land, has an irrevocable license to enter and remove them; but before the trees are cut, the landowner may revoke his license, leaving him no remedy but an action for breach of contract.</p> <p>The purchaser of standing wood and timber, who does not sever the trees from the land within the time limited therefor, cannot, upon a subsequent sale and conveyance of the land by the owner’s administrator under license of the Probate Court, maintain against such administrator and his grantee an action of tort founded upon the ownership of the wood and timber as chattels, or of trespass guare clausum.</p> <p>A purchaser of standing wood has no such interest in the land before the severance of the trees as to give him a right to pay the debts of the seller upon his dying intestate, either for the purpose of preventing a sale of the land by his administrator, or to enable him to call in question the administrator’s conduct in advertising the sale.</p>

<p>Personal Injuries — Railroad—Master and Servant— Contributory Negligence — Evidence.</p> <p>A brakeman, who had been employed for two years in shifting ears in a railroad freight yard, upon being ordered by the conductor under whom he was working to set two brakes upon a slowly moving freight train, jumped up between two platform ears and set the brake upon one car. Failing to set the other, and intending to set one elsewhere on the train, he put a hand on the sill of each car and proceeded to swing out the way the cars were going, without looking ahead or taking any other precaution to avoid obstructions near the track. When he had swung clear of the cars, he for the first time saw a pile of rails beside the track, and knew he was going to strike as he let go his hold, but it was then too late to help himself, and he struck them, and was injured. Held, that he could not recover against the railroad company for his injuries, either at common law or under the St. of 1887, c. 270.</p> <p>In an action against a railroad company to recover for personal injuries occasioned to a brakeman while jumping from a moving freight train, an offer to prove that in so doing, without looking or being able to see where he would alight or what obstructions he would meet, he was doing only what was ordinarily done by the railroad employees engaged in like employment and under similar circumstances, with the knowledge and approval of the defendants’ superintendent, was held to be properly excluded.</p>

<p>Contract for breach of the following agreement, dated Boston, February 8, 1887, and signed by the defendant:</p> <p>“ Boston, Feb. 8, 1887. Reynolds T. White of Boston, Mass., having this date assigned to me all his right, title, and interest in certain allowance for letters patent, serial number 207,184, I hereby agree, after a full and complete test has been made of aforesaid named invention, and the same proves entirely satisfactory to me, and a stock company has been formed as the result of said invention, after which I will pay to said White the sum of fifteen hundred dollars; also to make over or cause to be made over fifty thousand dollars of the aforesaid capital stock, or said Randall can pay said White for all his right, title, and interest in invention serial number 207,184 the sum of five thousand dollars net cash.”</p> <p>At the trial in the Superior Court, before Mason, J., there was evidence that the defendant had paid the plaintiff fifty dollars on account, and had promised to pay him $4,950 more, but had not done so. There was no evidence that any full and complete test had been made of the invention, or that the same was entirely satisfactory to the defendant, or that any stock company had been formed.</p> <p>The plaintiff contended that the defendant’s agreement contained two distinct and separate contracts; that the second contract consisted of an unconditional promise on the part of the defendant to pay the plaintiff $5,000 for his interest in the invention mentioned in the agreement; and that the defendant had elected to be bound by the second contract.</p> <p>The judge ruled that, while there was evidence to go to the jury upon the question of election, the agreement in question would not admit of the interpretation put upon it by the plaintiff, and ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Fish — Unlawful Taking of Smelt — Complaint.</p> <p>A complaint on the Pub. Sts. c. 91, § 58, to a district court, alleging that the defendant did “ unlawfully take one thousand smelts,” charges but a single of-fence, if the fish were taken at one time and place; and it is competent for the government, at the trial of the complaint in the Superior Court, on appeal, to show the number of the fish taken, for the purpose of fixing the penalty, even though this number might exceed that proved in the district court.</p>

<p>Tort, for the killing of the plaintiff’s horse, and for injuries to her wagon and harness.</p> <p>At the trial in the Superior Court, before Dewey, J., there was evidence that the defendant’s freight yard in Springfield extended from its freight station to an embankment wall which enclosed a highway passing under the tracks, and supported a railroad bridge ; that the top of this wall was at the same grade as the yard, and was unguarded by any railing; that the freight cars in the yard were being constantly distributed about the various tracks and made up into trains ; that the defendant used this freight yard among other things as a place for delivering freight to its customers; that, upon the arrival of freight, the consignee was notified by the defendant’s agent to pay the charges within a limited time and to take the freight away, being given the number of the car and its position in the yard for that purpose; that the consignee would thereupon unload the freight from the car and take it away; that one Gourley, who was in the employ of the plaintiff’s husband, went to Springfield with the plaintiff’s horse and wagon for a load of grain that he went to a store in Springfield, and was there directed to go to the freight yard for the load, and was told the number of the car containing the grain; that he found the car in the freight yard standing close to the wall and the bridge, and went to it with the horse and wagon; and that the horse being frightened by the bumping of freight cars upon an adjoining track, backed over the wall and was killed, and the harness and wagon were injured.</p> <p>Gourley testified, among other things, as follows: “ When I got there, I took the horse by the head for fear of danger. I saw I was in a confined place. I went to back up, cars came down the track, and one jumped against the other like that [showing] -, the beast gave a jump and lifted me off my feet. Then the cars bumped together two or three times more, and seeing nothing to save me — no railing — I was forced to go down ; I could n’t help it. The horse backed over the wall and took me with it. There was no railing on the wall. The cars that bumped together were freight cars on the track just the other side of the track where the car was that I was going to load from. I think they broke out some piece of the train and drove out five or six, and these bumped together. This happened two or three times. Up to the time the cars bumped together, there was no trouble.” On cross-examination, he testified that he was not sent by the plaintiff’s husband, Mi-. Miner, to the railroad, but to a store. “ When I got to the railroad, and before I brought the team from the street, I saw that the car was close to the wall, and close to or partly on the bridge. I saw just how the land lay. I saw that it was close to the wall and offset, and that it was a dangerous place. I led the horse from where it was in the street up towards the car. The reason I did not get in and drive up was because I was afraid of where I was going to back up. I thought I would be safer to have the horse by the head. I saw if I should lose control of the horse, it would be dangerous. I could see all the tracks at the place, and knew it was a freight yard; any man would know that. There were plenty of cars standing round, and men at work running cars up and down. I could see the cars coming down; I knew that when freight cars are started or backed, they will bump. You can’t handle a freight train very well without getting some bumping. I did not ask to have the car moved. I saw the car there. I wanted to get my load on. I knew it was a dangerous place. I thought I might be all right, and I dare say I would if the bump had not happened; it came very sudden. It was the first time I had ever had the horse where there was any bumping of the kind.”</p> <p>One Mesick testified that he was a grain dealer, and was accustomed to have grain come over the defendant’s railroad; and that “ the agent of the company gives us the number of the car, and we go and look it up, and wherever we find it, we take our goods out, and this is the way we have been doing for years.” On cross-examination, he said: “ They give us the number of the car, and we look it up. If we find it is not in a suitable place to unload, we tell them, and they put it in a suitable place. If we are satisfied with the place, we unload it, and if we are not satisfied, we tell them, and they put it where we can unload it ”; that he had had frequent occasion to go there himself; and that it was a very busy place, cars bumping together, and all noises incident to the business.</p> <p>The husband of the plaintiff, in testifying to the value of the horse, upon cross-examination, stated that he bought the horse for his wife about two years previous to the accident, and paid for it in cash; and that the horse at the time of the accident was six years old. The judge refused to permit the defendant to ask him what was paid for the horse when so purchased; and the defendant excepted.</p> <p>The defendant asked the judge to rule and instruct the jury as follows: “ 1. Upon all the evidence in the case, the plaintiff cannot recover. 2. If the defendant conducted its business in its freight yard in the usual and ordinary method of railroads doing such business, and made nq more or different noise in the handling of its trains than is usual, the plaintiff cannot recover for any injury occasioned thereby. 3. If the jury find that the plaintiff, or the person in charge of the horse, saw the condition of the freight yard and wall adjoining, and knew the danger, and voluntarily assumed the risk, the plaintiff cannot recover. 4. If the jury find that the plaintiff, or the person in charge of the horse, knew or would by the use of due care have known of the condition of the premises, and the use that was made of the same, and the dangers incident thereto, and voluntarily assumed the risk, the plaintiff cannot recover.”</p> <p>The judge refused so to rule and instruct, but submitted the case to the jury upon instructions which dealt only with the question of negligence on the part of the defendant, and of due care or contributory negligence on the part of the plaintiff, and which permitted her to recover if the defendant set apart the freight yard for the use of its customers in getting their freight, and had negligently failed to have it in a reasonably safe condition, or to conduct its business there in a reasonable manner, and if Gourley went into the yard by the express or implied invitation of the defendant for the purpose of transacting business between his employer and the defendant, and was at the time of the accident in the exercise of reasonable and ordinary care.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in September, 1890, and after-wards was submitted on the briefs to all the judges.</p>

<p>Corporation— Vote — Authority of President— Contract—Ratification.</p> <p>A vote of a newly formed manufacturing corporation contemplated the payment of royalties to and the purchase from an existing corporation, in addition to tools and material, of “all the other personal estate of said corporation, giving in payment therefor ” shares of stock in the new corporation, to be issued to the president of the old corporation as trustee for the parties in interest, any balance of such shares remaining “ after paying the liabilities ” of the old corporation to be issued to the treasurer of the new corporation. A written contract, purporting to be made between the two corporations, was signed by their presidents, who were the principal creditors of the old corporation, by which the new corporation, in consideration of the transfer of all the stock, tools, material, and machinery of the old one, and of its agreement to license the new one under all its patents, agreed to pay, besides royalties, all the debts of the old corporation. No director or stockholder of the new corporation besides the president knew anything of the particulars in which the contract departed from the terms of the vote. Held, in an action on the contract, that there was no evidence for a jury of the authority of the president of the new corporation to make or sign the contract, or of its ratification.</p>

<p>Tort, under the Pub. Sts. c. 52, § 18, for personal injuries occasioned to the plaintiff by a defect in Causeway Street in Boston.</p> <p>At the trial in the Superior Court, before Staples, J., there was evidence tending to prove the following facts. A trench was dug for a sewer or drain in Causeway Street, a much travelled highway in the city of Boston, under a permit duly issued by the city, extending from the building numbered 55 in that street across the sidewalk and into the carriageway under the tracks of the West End Street Railway Company. This trench was guarded on the south side by a fence and wooden horse stretched across the sidewalk and into the gutter, and the remainder of its length in the carriageway and across the track by another horse. Upon the outer end of this horse was placed a lantern. The only persons guarding the excavation were two employees of the railway company, whose duty it was to move the wooden horse for the passage of cars, twenty of which passed over the trench every hour. The defendant city had stationed no men there, but its officers knew of the existence of the trench and how it was guarded, and, from their knowledge of the number of cars passing the place hourly, had reason to believe that the barrier guarding the trench would be frequently moved. About seven o’clock in the evening of September 20, 1889, the street railway employees improperly moved the horse standing in the carriageway so as to leave an opening between the end of the fence and the horse. Just afterwards, the plaintiff in coming along the sidewalk from the south reached the fence, then turned and walked into the carriageway to the end of it, and then' turned and walked through this opening, and fell into the trench and was injured.</p> <p>The defendant asked the court to instruct the jury, that, if the city had exercised reasonable care and diligence to guard the hole and prevent the accident or injury, it would not be responsible for the momentary negligence of one of the railway company’s employees. The judge refused to give said instruction, and instructed the jury, among other instructions, as follows: “It is a question purely of fact for you whether such barriers or safeguards existed in this case as were reasonably required. No rule of law can be laid down except this general one, that the city must, either by lights, bars, or boards, or in some other way, provide a reasonable safeguard. In ordinary cases, the city would not be liable if those barriers or safeguards were removed by others; but in this case it is competent for the jury to consider the fact that it was known that horse cars would pass the barrier in question, and that it would frequently have to be removed in order that the cars might pass over the trench; and it is for the jury to say, under all the circumstances of the case, whether this barrier was sufficient, whether this was all the city should have done, or whether other precautions, such as planking over the hole, and stationing officers or servants there to warn people, should have been adopted. It is of no manner of consequence in this case to inquire whether there was a liability on the part of the West End Company. The city was bound to take measures to guard that trench, and if the city trusted to the agents of this company properly to guard the hole, the city is liable for their negligence, because it intrusted to them a duty which belonged to itself. It is a duty devolving on them reasonably to guard those premises, and if these agents are negligent it must take the consequences of it. The authority of the city over the street was not abridged by the existence of the railway, and they were therefore liable for the negligence of the railway company in this respect. Did the city do what was reasonably incumbent upon it to do for the safety of travellers, taking into view what the city knew, ox-ought to have known, in relation to the use of the railway, and the necessity of frequently removing the barriers, and as to the manner in which they might be removed, or xxaturally could be removed ? ”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Replevin of a horse, buggy, harness, and robe. Trial in the Superior Court, without a jury, before Bishop, J., who found for the plaintiffs, and reported the case for the determination of this court. If the plaintiffs were not entitled to maintain the action, judgment was to be entered for the defendant; otherwise, judgment was to be entered upon the finding. The facts appear in the opinion.</p>

<p>Contract against the indorser of two promissory notes, for $7,000 and $10,000 respectively. Writ dated August 12,1889. Trial in the Superior Court, without a jury, before Mason, C. J., who found for the plaintiff for $3,366.37, and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Intoxicating Liquors — Sale by Servant to Minor — Druggist — Evidence of Number of Sales.</p> <p>An employer is not criminally responsible for the illegal sale of intoxicating liquor to a minor by an employee, if the employer’s instructions, given in good faith, not to make such sales permit the employee to determine the question of minority from a customer’s appearance merely, and the sale is made under an honest but mistaken belief that the minor is an adult.</p> <p>At the trial of a complaint against a druggist for the unlawful sale of intoxicating liquors to a minor, evidence is competent, on the question of the reasonableness of his precautions to prevent such sales, of the number of sales thereof charged on the defendant’s books near the time of the alleged sale.</p>

Tort, for personal injuries occasioned to the plaintiff while travelling along a highway in the defendant city by the negligence of its servant in blasting rock in excavating for the foundations of a schoolhouse upon adjoining land.

<p>Charges op fraud, filed August 8, 1889, by the complainant in a bastardy process against the respondent, who, after being adjudged the father of the child, was committed to jail on April 10, 1889, for a failure to contribute to its support. The charges which were made upon his application to take the oath for the relief of poor prisoners were, that the respondent, “ since the cause of action accrued ” to the complainant, had “ fraudulently conveyed, concealed, and otherwise disposed of a part of his estate, with a design to secure the same to his own use and defraud his creditors, namely, by ” various conveyances of real and personal estate in July, 1887. Trial in the Superior Court, on appeal, before Sherman, J., who, after a verdict of guilty, reported the case for the determination of this court, in substance as follows.</p> <p>There was evidence of the following facts. The child was begotten on or about December 1, 1886, and was born on August 23, 1887. The complaint was filed on September 13, 1887, and the supplementary complaint on April 30, 1888, and the respondent was duly found guilty of being the father of the child at the March sitting of 1889 of the Superior Court, and an order of affiliation made on April 10, 1889. The respondent had been threatened by the complainant with a prosecution under the bastardy act on or before July 23, 1887. The conveyances mentioned in the charges of fraud were made on July 28, 29, and 30, 1887, successively. To the introduction of evidence of these transfers of property the respondent objected, upon the ground that at the times they were made no cause of action had accrued to the complainant within the meaning of the statute, and argued that the action would not accrue until the child was born alive, and asked the judge so to rule. The judge admitted the evidence and refused so to rule, but ruled that the action accrued prior to the conveyances. The respondent also requested the judge to rule that at the times of the conveyances the complainant was not a creditor within the meaning of the statute; but the judge declined so to rule.</p> <p>If the rulings requested should have been given, then the verdict was to be set aside; otherwise, the verdict was to stand.</p> <p>The case was argued at the bar in October, 1890, and after-wards, in February, 1891, was submitted on the briefs to all the judges.</p>

<p>Will—Public Charity—Cy Pres — Framing of Scheme by the Court — Former Decree.</p> <p>A testator by bis will devised his entire estate to a parish priest, in trust to pay it over to “ the Sisters of Charity, for the purpose of a relief fund for the poor; and the same shall be devoted and appropriated in the first place to the aid of my poor relatives, if any such there be, according to the discretion of the Sisters of Charity; afterwards the said property and estate, and the proceeds and income thereof, or such part of either or both as may be deemed expedient by the said Sisters of Charity, shall be, at such times and in such sums as they shall deem proper, bestowed upon proper objects of charity, in their discretion.” There was .no such order as the Sisters of Charity. Held, that the gift constituted a public charity; and that the court would frame a scheme to administer the trust.</p> <p>A will, in establishing a trust as “ a relief fund for the poor,” provided that preference should be given to the testator’s “poor relatives, if any such there be.” A decree was made in equity in reference to the trust, that payments should be made from the fund to a sister and a niece, the next of kin of the testator, who were poor and in needy circumstances, and that further payments should be made them from time to time according to their need. Held, that the decree did not conclusively determine that such relatives were the only relatives who were to receive any benefit from the trust, or that, as private beneficiaries, they were entitled to the whole fund; but that a later decree might be entered such as the provisions of the will might require.</p>

<p>Probate Appeal—Reasons of Appeal — Partnership — Equitable Interest in Real Estate.</p> <p>The Probate Court decided that an interest in real estate was personal property, and charged an executor therewith in his account. An appeal was taken from the decree, and the reason of appeal filed under the Pub. Sts. c. 156, § 8, was that the executor was not charged to the full value of such interest. Held, that it was open to the executor to show that he was not chargeable with such interest at all.</p> <p>An addition was made with partnership funds to a factory used by a firm, but owned together with the land under it by one of the partners, who made-no express agreement that the addition should be considered as the personal property of the firm with a right of removal; nor could it be inferred from its nature or construction that he ever intended or consented that it should be removed or severed from the soil. There were at all times firm assets enough, exclusive of the land and building, to pay all its debts or any balance due to either partner. Held, that the firm’s interest in the addition must be taken to be an equitable right in real estate, and that the share therein of a deceased partner other than such owner was to be treated as real estate.</p>

Complaint for keeping intoxicating liquors with intent unlawfully to sell the same. Trial in the Superior Court, on appeal, before Bishop, J., who, after a verdict of guilty, overruled a motion in arrest of judgment, and allowed exceptions, which appear in the opinion.. The case was submitted on briefs in November, 1890, and afterwards was re-submitted on the same briefs to all the judges.

<p>Deed — Restriction — Laches — Mandatory Injunction.</p> <p>A deed from the Commonwealth of land on Commonwealth Avenue in Boston stipulated that the front wall of any building erected thereon should be set back twenty feet from the avenue, with a proviso that “ porticos and other usual projections ” appurtenant to such wall might project into the reserved space, subject however to the limitation, among others, that “ no projection in the nature of a bay window,” etc. was to be allowed, “unless any horizontal section of such projection would fall within the external lines of a trapezoid whose base upon the rear line of the aforesaid space does not exceed seven tenths of the whole front of the building, nor exceed eighteen feet in any case, and whose side lines make an angle of forty-five degrees with the base.” Held, that the basement story of such a building, surmounted by a balcony such as had never been usual in this country, was not a “ usual projection ” within the meaning of the deed. Held, also, that each of several bay windows on the building must fall within the external lines of a trapezoid, whose base, while it might overlap upon a portico or balcony, was clear of that of the adjoining bay window, and did not extend beyond the exterior lines of the building, and the combined bases of all the trapezoids must not exceed seven tenths of the whole front of the building.</p> <p>Before the front wall of a building was erected on the land, a remonstrance was made by the proper officers of the Commonwealth against the construction of any unauthorized projections thereon; and after its completion an information was brought for the removal of such projections upon its basement story, as well as of others of a minor character above that story. Held, that no loches could be imputed to the Commonwealth, and that a mandatory injunction should issue for the removal of such projections as were insisted upon, unless so slight as to fall within the maxim de minimis.</p>

<p>Bill in equity, filed in the Superior Court on October 9, 1889, for an account, and for other relief. The defendants demurred, on the ground, among others, of loches. On February 25, 1890, the defendants waived their demurrer, and filed separate answers, which agreed in setting up loches as a defence. The case was heard on August 13, 1890, by Mason, J., who dismissed the bill, and the plaintiffs on that day appealed to this court, and requested the judge “ to report the evidence and the facts found by him in said cause.” On the same day the judge made a report, which, so far as it related to loches, was as follows: “ The court did not rule, as matter of law, upon the pleadings that there was loches on^the part of any of the plaintiffs, but found as a fact upon the evidence that there was such loches as to all the plaintiffs.” The plaintiffs thereupon on the same day filed, and the judge allowed, a bill of exceptions, which concluded as follows : “ At the hearing, the several plaintiffs asked the court to rule as to the several transactions, that the defence of loches was waived by the waiver of the demurrer, and was not open to the defendants. At the close of the evidence of both parties, the defendants requested the court to rule ‘ that the plaintiffs have been guilty of loches in bringing their action, so that they are not entitled to maintain this bill.’ The court reserved its decision of the above questions, and in deciding the case ruled that the defence of loches to the several transactions was open to the defendants, and declined to rule as requested by the defendants, but found as a fact that there was such loches as to all the plaintiffs. To these rulings and findings, and the refusal to rule, the several plaintiffs except. The plaintiffs made no request before the decision for specific rulings or findings upon the question of loches other than as herein stated. All the facts found are reported. To the treatment of the question of loches as a question of fact, and the failure to find and report the subsidiary facts upon which the finding of loches is based, the plaintiffs except.”</p>

<p>Tort for personal injuries resulting to the plaintiff, while in the employ of the defendant as a conductor, from a collision of trains upon the defendant’s railroad. At the trial in the Superior Court, Dunbar, J. ruled, against the plaintiff’s objection, that the action could not be maintained, and ordered a verdict for the defendant; and the plaintiff alleged exceptions, which, so far as material to the points decided, appear in the opinion.</p>

<p>Petition to the Probate Court, by the executor of the will of Michael Hogan, for the construction of the will. The record of the Probate Court, transmitted to this court on appeal, consisted only of the petition, the citation, and the notice of appeal. The petition alleged that Michael Hogan died on April 28, 1889, leaving no widow or child surviving him, but as his next of kin, — all of whom were made respondents, — a brother, Daniel Hogan, of Paterson in the State of New Jersey, and nieces, Maria Keefe, Ella Burns, Maggie Ryan< and Terressa Clarrey, all of Westfield in this Commonwealth; that Michael Hogan made a will, naming the petitioner as executor, which was duly admitted to probate on September 18, 1889; that the assets of the estate, which consisted wholly of real estate, were appraised at SI,250; and that the third and fourth clauses in the will, which alone are material, were as follows:</p> <p>“ Third. I direct my said executor to expend such sum of money as may be necessary to suitably grade and put in good condition my lot in St. Mary’s Catholic Cemetery, in said West-field, arid also to place around said lot a good and substantial curbing.</p> <p>“ Fourth. All the rest, residue, and remainder of my estate, real, personal, or mixed, wheresoever situate and however described, I give, devise, and bequeath to said Charles Green and Peter Tierney, of said Westfield, and their heirs, executors, and administrators, to expend the income, and such part of the principal sum thereof as they may deem best, for the care of and keeping in good condition my said lot in said cemetery, the curbing and grounds of the same, and the monument thereon. The said Green and Tierney, their heirs and executors and administrators, to take and receive such compensation for the care of said lot as they may deem reasonable.”</p> <p>The prayer of the petition was for the construction of these clauses, and for instructions respecting the same. The citation provided for notice by publication in a newspaper, and for personal notice “ to all persons interested in the will and in the estate of Michael Hogan,” and a return thereon, which was sworn to, recited that it had been served as therein required. The judge of probate made a decree that the fourth clause was valid, “ judgment upon said third clause having been waived by the petitioner”; and from this decree the respondents appealed.</p> <p>The case was heard in this court before Knowlton, J., who, at the request of the parties, reported the case for the consideration of the full court, in substance as follows.</p> <p>The testator in his lifetime bought and paid for a lot in St. Mary’s Cemetery, which was the only Catholic cemetery in Westfield, subject to the following condition, set out in the instrument of conveyance: “ The condition of the above sale being that persons bereft of reason in consequence of drunkenness, having fallen in duel, never having received baptism, or having wilfully departed life without receiving the sacraments, or in any way opposed to the Catholic Church, shall be debarred from all rights and privileges otherwise conveyed by this instrument.” The title to this cemetery was in the bishop of the diocese, and was held by him for the use of the church. The testator during his lifetime was a member of the Catholic church in Westfield, which, together with the cemetery, was under the charge of the resident priest. The cemetery was at all times open to the public, and burial services, as well as exercises of a religious and patriotic character, were occasionally held there by the priest. The moneys received as income from the cemetery formed a common fund with those received from the church, although kept separately on the books of the priest for the sake of convenience. In the consecrated portion of the cemetery, no persons except Catholics could be buried under the rules of the Church; but connected with the cemetery was a parcel of ground not consecrated, in which those not Catholics might be buried. The care and use of cemeteries are regarded by" the Catholic Church as sacred obligations. The church through the priest paid for the general care of the cemetery, so that the lots might not become unsightly, or a disfigurement to the cemetery, this care consisting in keeping the lots in order by cutting down the weeds, and other work of like character. The estate of the testator, above debts and charges of administration, amounted to about $1,200. The ordinary care of keeping in order such a lot as that of the testator would not exceed three or four dollars annually.</p>

<p>Personal Injuries '-—Employers’ Liability Act —Death of Employee — Notice by Widow — Negligence of Employer — Due Care.</p> <p>Under the St. of 1887, c. 270, § 3, as amended by the St. of 1888, c. 155, the notice required to be given to an employer upon the instantaneous death of an employee may be given by his widow.</p> <p>An employee, while engaged during the daytime in the course of his employment in assisting to pull a loaded car along a railroad track on the employer’s premises, with his back to the car and fronting in the direction of a ditch across the track, fell into the ditch and was struck by the car and killed. The ditch was open and visible, but unguarded, and the employer had caused it to be dug, without giving warning thereof to his employees, in such a way as to render the track dangerous if used by them as they had.been wont to use it, not knowing of the ditch. Held, in an action under the St. of 1887, c. 270, §§ 1, 2, that it was a question for the jury, in the absence of direct evidence that the deceased knew of the ditch, as to whether there was a defect in the condition of the ways used in the employer’s business which arose from his negligence, and whether the deceased was in the exercise of due care.</p>

<p>Three actions of contract upon three policies of insurance against loss by fire, each in the form prescribed by the Pub. Sts. c. 119, § 139, (St. 1887, c. 214, § 60,) and containing the condition that the policy was to be void if, the premises insured being a manufacturing establishment, such establishment should cease operation for more than thirty days without the written consent of the company indorsed thereon. The cases were tried together before Dewey, J., who excluded certain evidence, and ordered a verdict in each case for the defendant, and reported the cases for the determination of this court. If, in either case, the judge should have sustained the plaintiff’s contention that the above condition was not applicable, the vei’dict was to be set aside, and judgment entered for the plaintiff for the amount of the policy; if the rulings were correct, judgment was to be entered for the defendant in each case.</p> <p>The cases were argued at the bar in September, 1890, and afterwards, in February, 1891, were submitted on the briefs to all the judges.</p>

Writ of entry, dated July 19, 1890, to recover an undivided half of a parcel of land in Lawrence. Plea, nul disseisin. At the trial in the Superior Court, without a jury, before Dewey, J., the following facts were not disputed. John Goodwin, who was seised in fee of the entire parcel, died on December 1, 1889, leaving a widow, Sadie Goodwin, and a son, the demandant.

<p>Intoxicating Liquors— Common Nuisance— Complaint—Videlicet — “ Tenement.”</p> <p>A complaint for keeping and maintaining between certain dates “ a certain nuisance, to wit, a tenement ” in a certain town, used for the illegal sale and keeping for sale of intoxicating liquors, sufficiently sets forth an offence under the Pub. Sts. c. 101, §§ 6, 7, and need not more particularly describe the place so used.</p>

<p>Personal Injuries — Master and Servant — Dangerous Machine — Instructions to Servant.</p> <p>A boy, somewhat over sixteen years of age and of at least ordinary intelligence, was put to work on a picker in a woollen mill. He learned that the machine was dangerous from being told so by those setting him to work and running it, and from helping to clean it several times. It was a part of his duty to gather up and put back into the machine wool blown out of it from an opening therein about two feet from the floor and a foot high by four feet wide, near the mouth of which was a revolving cylinder with teeth on it. In so doing, he had to work carefully, as he knew, because the floor was very slippery. The next day, when at work near the opening, he slipped, his arm went in, and he was injured. Held, that his employer was not liable to him because of any neglect to instruct him as to the danger.</p>

<p>Will — Sanity of Testatrix — Undue Influence — Lost Document— Secondary Evidence — Non-expert.</p> <p>Evidence of statements, made after a testator’s death by a person alleged to have procured the execution of the will by fraud or undue influence, tending to prove such fraud or influence, is inadmissible.</p> <p>On the issues of a testatrix’s sanity and of undue influence, an executor of the will, after stating that he had been consulted regarding an earlier will executed by her shortly before the date of that in question, and that he had failed to find the same, testified that he had inquired regarding it of the person alleged to have exerted the undue influence, that he had searched for it among the testatrix’s papers, and that he had taken every other means he could to find it, but had failed. Held, that the evidence was sufficient to warrant the admission of testimony as to the contents of the lost will.</p> <p>At the trial of the issues of a testatrix’s sanity and of undue influence, the contents of an earlier instrument, whether formally executed as a will or a mere draft or memorandum, made a short time before the instrument in controversy, may be proved in evidence as showing her intentions or wishes at that time as to the disposition of her property.</p> <p>On the issue of a testatrix’s soundness of mind, one of her executors, who had had several interviews with her hut was not an expert, was asked whether he had observed any fact which led him to infer that there was any derangement of her intellect, and was permitted to answer the question, being expressly cautioned, not to state his opinion, but the facts only. Held, that there was no occasion to grant a new trial, there being no reason to suppose that any injustice was done.</p>

<p>Personal Injuries—Railroad Passenger—Invitation to alight — Contributory Negligence.</p> <p>A passenger, a woman, upon a railroad train in the evening, when the brakeman opened and fastened back the door of the car and called out the name of her station, passed out upon the platform, and, receiving no warning from the brakeman, stepped off upon the platform while the train was still in motion, and, falling under the train, was injured. The place where she attempted to get off was dark and badly lighted, and she supposed that the train had come to a standstill. Held, that she was guilty of contributory negligence, and could not recover for her injuries.</p>

<p>Watercourse — Change to Common Sewer — Riparian Proprietor — Prospective Damages.</p> <p>If a city, acting under the authority of a statute, duly appropriates a brook for a main drain and common sewer, a mill owner npon a river into which the brook flows, who has been wont to use the water of the brook to furnish power for his mill, is entitled, upon a petition duly filed under the statute for damages caused by the action of the city, to go to the jury upon the question how much less valuable is such water for use in connection with his land by being made' to flow through a common sewer instead of as before; and in estimating the damages the prospective change in the quality and condition of the water, if any, may be taken into account.</p>

<p>Tort for breaking and entering the plaintiff’s close in New Bedford, described as a dock. Trial in the Superior Court, before Staples, J., who reported the case for the determination of this court.</p> <p>There was evidence tending to prove the following facts. Before April, 1888, the plaintiff became the owner, under various deeds, of two adjoining lots in New Bedford, partially submerged by water, situated between Prospect Street on the west and the Acushnet River on the east as shown on the plan, a sketch of the material portions of which appears in the margin. These lots were described in such deeds as extending easterly to the channel of such river, and were situated within the limits named in the St. of 1806, c. 18, § 1, by the terms of which owners of land on that river within such limits were authorized to erect wharves and docks extending to the channel of the river. Upon the northerly lot was a wharf called Hastings Wharf, which extended easterly to the channel of the river from the foot of a street or contemplated street called Grinnell Street, running at right angles with Prospect Street; and upon the southerly lot was the dock in question, which extended along the southerly side of the wharf and was bounded on the west by a structure made of piles and planking called on the plan “ Edge of wooden structure,” and on the east by the channel. The boundary line between the two lots was the southerly line of Grinnell Street extended, and formed the southerly edge of Hastings Wharf. The dock had been dredged to a width of one hundred feet from the wharf, but only the seventy feet nearest the wharf had been in actual use. On April 20, 1888, the plaintiff conveyed to one Wilcox a tract of land by a deed, which described the granted premises as beginning at a point in “ Grinnell Street in the northwest corner of the lot to be described, and at the northeast corner of land of Jonathan Bourne, Jr., said point beginning one hundred fifty four and feet east of the point of intersection of the south line of contemplated Grinnell Street with the east line of Prospect Street, thence easterly in the south line of said Grinnell Street to a point four hundred feet easterly from the point of intersection aforesaid of the south line of Grinnell Street and east line of Prospect Street, and to the easterly line or margin of the structure of piles and planking extending southerly from said south line of contemplated Grinnell Street; thence southerly by the easterly margin of said structure one hundred feet; thence easterly in a line parallel with the south line of grantor’s wharf at the foot of said contemplated Grinnell Street, and one hundred feet south of said south line of. said wharf, to the channel of Acushnet River. . . . Together with all rights in, to, and over said contemplated South Street and said contemplated Grinnell Street belonging or appertaining to said two last named lots of land. Also the right to take and use the water from the pipe or conduit now laid in and through said contemplated Grinnell Street easterly from Prospect Street. And the said grantor for himself, his heirs and assigns, covenants with the said grantee, his heirs and assigns, that he and they will never place or erect or suffer to be placed or erected any permanent structure or obstruction in, upon, or over the space or area now covered by water and included in the lines of the grantor’s wharf on the north, the structure of piles and planking hereinbefore named on the west, the line parallel to the south line of the said wharf and one hundred feet south therefrom on the south, and the channel of Acushnet River on the east. Said space or area now affording the most convenient means of access by water to the premises herein conveyed to said grantee. And the said grantee covenants with said grantor for himself, his heirs and assigns,, and to and with said grantor, his heirs and assigns, never to remove the stone wall or breakwater extending from the premises conveyed easterly into the Acushnet River.” On the same day, Wilcox conveyed the same premises in like terms to the City Manufacturing Company. On or about May 1, 1889, the defendant, acting under a license of this company, brought into the dock floats, which he secured to the piling and thenceforth used, against the plaintiff’s objection, as landing stages in his business of letting boats for hire; and this is the tort complained of by the plaintiff.</p> <p> </p> <p>The defendant asked the court to rule, that,' upon the evidence, the plaintiff was not entitled to recover, and also that the deeds from the plaintiff to Wilcox and from Wilcox to the City Manufacturing Company vested in the latter a title in fee to the water extending from the structure of piles easterly to the channel of the river and lying between the south line of Hastings Wharf and a line parallel thereto and one hundred feet distant, including the locus in quo. The judge refused so to rule, but ruled that the land deeded to Wilcox did not include the locus to the extent that it had been used by the plaintiff or his grantors as a dock, and directed a verdict for the plaintiff, and reported the case to this court.</p> <p>If any of the rulings asked for by the defendant should have been given, the verdict was to be set aside, and a new trial ordered ; otherwise, the verdict was to stand.</p>

<p>Insolvent Debtor — Fraudulent Preference — Evidence — Reputation.</p> <p>A trader, two days before insolvency proceedings were instituted against him, sold the entire stock in his store, and took the purchaser’s notes in payment therefor. The sale was made late at night, and an agent of the creditor, seeing a light, entered the store, and, on being informed of the transaction, took the notes at the trader’s request in payment of his principal’s account, all of which was not then due. The trader had never before paid his bills until they became due, or otherwise than by check or cash. The agent knew that the trader had bought goods of others on credit, and supposed that he was indebted therefor and had no other valuable assets. Held., in an action by the assignee in insolvency to recover such payment as being a preference, that the question whether it was made in the ordinary and usual course of business was to be passed on as a question of fact.</p> <p>In an action by an assignee in insolvency to recover a payment made by the debtor by way of preference, the latter’s general reputation of doing business on borrowed money is admissible on the issue whether the defendant had reasonable cause to believe him insolvent.</p>

<p>Railroad — Location — Abandonment — Estoppel.</p> <p>In an action to try the title to a small parcel of land occupied by a railroad company in the rear of its C. F. Station, it appeared that a relocation duly filed by the company described the boundary line of the land taken, after running southwesterly “ to the fence ” between its land and that of the plaintiff's predecessor in title, as “thence turning and running westerly on the boundary line ” between them. The location, further to identify the land taken, referred to a colored plan which included the parcel in question. The location and the plan agreed if the line “ running westerly ” was taken to be the line of such fence. Another plan furnished such predecessor in title was colored only up to the parcel in question, but showed it enclosed by a line and marked “ C. F. Station.” Subsequently the company accepted from such predecessor a deed of land describing the granted premises as the “ land of the grantors taken ” by the location, and bounding it by “ land of said company used for C. F. Station," but not including the parcel in question. Soon after, the same grantor gave to the company a license to occupy other land of his, which it ever after occupied, and which would have been of no use whatever if the company was not entitled to the parcel in question. Held, that the location included the parcel in question, and that the acceptance of the deed from the plaintiff’s predecessor in title did not affect the company’s rights under the location.</p>

<p>Contract by an attorney at law to recover for professional services and for disbursements in prosecuting an Alabama claim. Trial in the Superior Court, without a jury, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that the Court of Commissioners of Alabama Claims had rendered judgment upon the claim in question in favor of Benjamin P. Sherman as complainant, and of the defendant as beneficiary ; and that the defendant received a draft from the United States Treasurer in payment of his claim as such beneficiary. The plaintiff testified that he was employed by Sherman to prosecute the claim in behalf of Sherman and various beneficiaries, his compensation to be contingent on his success therein; that the defendant gave an affidavit which was used by the plaintiff in obtaining judgment for him, in which the defendant named the plaintiff as his attorney in the case; and that the plaintiff alone appeared in such case before that court. The defendant testified that he never employed nor authorized said Sherman to employ the plaintiff, and gave other evidence in contradiction of the plaintiff.</p> <p>The judge found as a fact that the defendant did not employ the plaintiff, nor authorize said Sherman to employ him, and did not know that the plaintiff was acting as counsel in said case until after said draft was paid.</p> <p>The plaintiff requested the judge to rule as follows: “ 1. That B. P. Sherman, as agent for the defendant, had lawful authority to bind the defendant, and did bind the defendant (in executing the petition and its amendments) to pay the plaintiff his reasonable and just fees for services and his expenses. 2. That the defendant is estopped from denying this agency, and is bound, as principal, to the plaintiff to pay him what is lawfully his due for his services and expenses. , 3. That the naming by Sherman, in his amendment to his petition, of the plaintiff as the attorney for the beneficiaries (of whom the defendant was one) was lawful authority of the principal, Leland, by his agent, Sherman, and binds the defendant to pay the plaintiff his lawful fees and expenses. 4. That the act of the defendant in receiving the money paid on the judgment in defendant’s favor by the United States was a ratification by the defendant of Sherman’s act in employing the plaintiff as the attorney of the defendant, and binds the defendant to pay the plaintiff his lawful and reasonable fees for his services and necessary expenses incurred in the prosecution of the claim.”</p> <p>The judge refused so to rule, and found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Personal Injuries — Highway Defect — Concurring Cause — Due Care — Statutory Notice,</p> <p>A town may be liable for a defect in a highway, although the innocent act of a third person is a concurring cause of the damage complained of.</p> <p>In an action against a town for personal injuries, it appeared that a telephone wire sloped down from a house to which it was fastened, and rested upon the surface of a highway; that the only support for the wire between the house and a distant point across the highway had been a bracket on a pole in the road; that the bracket had been gone for about a week before the accident, and ! the night before it occurred the wire was down within a foot of the ground;' that the wire caught in the wheels of a wagon approaching that of the plaintiff, and he saw it fifty feet away, and called to the driver, who paid no attention to him; and that he was unable to turn out or to change his seat, and was hurt in bending back in his seat to avoid the wire as it reached him. Held, that there was evidence that the injury was caused by a defect in the highSvay, and that the plaintiff was in the exercise of due care.</p> <p>The plaintiff’s testimony was that the accident happened on February 7, and the requisite notice given by him to the town gave the same date. The town clerk testified, solely from inspection of a memorandum on the notice, that it was received on February 6, and the then counsel for the town testified that he had heard of the accident through the notice during the last month of his official year, which ended on March 4 following. Held, that there was evidence that the notice was given within thirty days of the accident.</p>

<p>Building Contract—Act of God — Implied Condition — Failure of Consideration—Assumpsit.</p> <p>A builder and a landowner entered into a contract, by which the former was to “ make, erect, build, and finish ” a hotel upon the land, and the latter was to do the grading, excavating, stone-work, brick-work, painting, and plumbing, and pay a certain sum as follows: each month seventy-five per cent of the value of the work of the preceding month, the balance in thirty days after completion. The building was destroyed by lightning shortly before completion. Held, that the contract was upon an implied condition that the building when begun should continue in existence until completed; and that neither party could recover damages for a non-performance of the contract, but each might recover from the other, the landowner for what he had paid, the builder for what he had done and furnished, under the same.</p>

<p>Adopted Child— “Issue ” —Widow — Assignment of Real Estate.</p> <p>A child by adoption is “issue,” within the meaning of § 3 of the Pub. Sts. c. 124, which provides that if a husband dies intestate leaving “ no issue living ” his widow shall take his real estate in fee to an amount not exceeding five thousand dollars in value.</p>

<p>Defect in Way — Private Cesspool — Notice — Negligence — Law and Fact.</p> <p>It cannot be said, as matter of law, that a town would have notice of a defect in a cesspool built within the limits of a public way, if it was in fact defectively built and was put in by others than the town itself.</p> <p>The fact of the existence of a private cesspool within the limits of a public way is not decisive of negligence on the part of the town.</p>

<p>Bill in EQUITY, filed February 23, 1888, to prevent the defendant from building upon a lot of land adjoining that of the plaintiff. The ease was heard by Holmes, J., who reported it for the consideration of the full court, and was as follows.</p> <p>In 1839 the Proprietors of Locks and Canals on Merrimack River, from which corporation both parties derived title, owned a tract of vacant land in the vicinity of Middle Street in Lowell, and in its deeds of the same generally inserted, in pursuance of a scheme of improvement, a provision that no building more than twelve feet high should ever be erected on the granted premises of any other material than of brick or stone, with a roof of slate or of some other equally incombustible material. On June 26 of that year, the city council of Lowell passed a resolution authorizing the purchase from that corporation of two lots of land, one on the south side and the other, which was the lot in question, on the north side of Middle Street, the latter to be forever kept open, and the expenditure therefor to be charged to the appropriation for grammar and primary schools. On the same day the city council passed another resolution looking to the erection of a grammar school on the lot on the southerly side of the street. On August 7 following, the defendant city purchased the two lots, and the deed accepted by it of the lot on the north side of the street contained, after the description of the granted premises, the following: “ But this conveyance is made on the express condition that no building shall ever be erected on the above-mentioned premises, and also that no wall or fence shall ever be placed on the above-mentioned premises within less than five feet of Middle Street, and that the same five feet shall forever remain open as a public sidewalk,” without more. Subsequently the defendant built the contemplated schoolhouse on the south lot. On May 18,1844, the Proprietors of Locks and Canals conveyed to the plaintiff another lot of its land, which still remained vacant, adjoining the lot in question on the west, and bounded on the south by Middle Street, on the west by Shattuck Street, and on the north partly by an open square and partly by an open passageway sixteen feet wide. Immediately following the description of the lot was the restriction that no building over twelve feet in height should be erected thereon of material other than brick and stone, or with other than an incombustible roof, or should be placed within less than five feet of Middle Street or eight feet of Shattuck Street, without more. Upon this lot the plaintiff proceeded to build its bank building. On December 29, 1874, the Proprietors of Locks and Canals executed a release to the defendant city of the condition above quoted contained in the deed to it of the lot in question. At the filing of the bill, the defendant threatened and intended to erect a wooden building more than twelve feet high on the lot in question.</p> <p>The plaintiff contended that, for the purposes of light and air, and for safety from fire, it had a right to prevent the defendant from building upon its lot.</p> <p>The judge ruled that the lot in question was not subject to the restriction as to wooden buildings more than twelve feet high, and that the plaintiff had no easement or private equitable right to have the lot in question remain open.</p>

<p>Contract on an account stated and on an account annexed. Trial in the Superior Court, before Barker, J., who reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Contract upon an attested promissory note, dated February 1, 1872, payable one month after date to the order of the plaintiff, and signed by the defendant. Writ dated December 12, 1887. At the trial in the Superior Court, before Barker, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which were allowed, and filed a motion for a new > trial, which was overruled. The facts appear in the opinion.</p>

Tort, for an assault and false imprisonment. The case was submitted to the Superior Court on agreed facts, in substance as follows. The defendant recovered judgment against the plaintiff, and an execution duly issued thereon remained unpaid. On February 8,1888, the defendant applied to a proper magistrate for a certificate authorizing the plaintiff’s arrest.

<p>Life Insurance —Insolvent Estate of Deceased Person — Set-off.</p> <p>An insurance company issued two policies on the same life, one for the benefit of the wife of the assured and of their children, and the other for that of the wife and “in case of her decease prior to that of said assured, for his own order.” An assignment of each policy was made in due form to the assured, of the former by the wife and children, who were then of full age, and of the latter by the wife. The wife died before the assured, whose estate upon his subsequent death turned out to be insolvent. The company had certain claims against the assured, a portion less in amount than the insurance being secured by valid assignments to it of the policies, and the rest being unsecured. Held, that the money due under the policies was to be administered as assets of the estate. Held, also, that the unsecured claims of the company might be set off against the proceeds of the policies.</p>

<p>Contract— Sale of Real Estate — Evidence.</p> <p>In an action to recover a commission on a sale of real estáte, the first count of the declaration alleged that the defendant employed the plaintiff to sell the same, and agreed to pay him a certain commission on a sum named if he should sell the estate for that sum, or an equivalent thereof; the second count was on an account annexed. At the trial the plaintiff’s evidence showed that he sold the estate for a fair equivalent, and that the defendant agreed to pay him the commission on such sum if the estate was either sold or exchanged. This was contradicted by the defendant, who, after testifying without objection that he received no money from the sale, offered to show what was actually received in exchange for the estate, and that it was much less than the sum named in the declaration. Held, that this offer of evidence was improperly excluded.</p>

<p>Contract upon a certificate of deposit for $2,700, dated January 18, 1888, “payable to the order of Charles E. Swain on return of this certificate properly indorsed,” and indorsed by him to the plaintiff. Writ dated August 8, 1889. Trial without a jury, in the Superior Court, before Bishop, J., who reported the case for the consideration of this court.</p> <p>In January, 1888, Swain, at the plaintiff’s request, took the amount represented by the certificate and deposited it for him in the defendant bank, receiving therefor the certificate, which he thereupon indorsed and delivered to the plaintiff. The bank at the time agreed to pay interest at the rate of two per cent per annum upon the deposit.</p> <p>The plaintiff testified that after receiving the certificate he kept it on his person; that, after he had bad it a few days, thinking from certain noises heard by him in the night-time about his room that he was about to be robbed, he tore up the certificate, and the next morning threw away the pieces; and that he supposed he could get his money just the same, because he had previously received money upon a second of exchange when the first of exchange had been lost. There was evidence tending to show that the plaintiff had previously been subject to derangement of mind, and that he drank somewhat, but not to excess. The plaintiff made demand upon the defendant for the deposit on February 1, 1888, and, upon his declining to give bond, the defendant refused payment of the deposit.</p> <p>The plaintiff contended that, upon the evidence, the certificate of deposit was destroyed, and requested a finding of fact to that effect. He also contended that he was entitled to recover judgment without producing the certificate, and interest at the rate of six per cent per annum from the date of the demand.</p> <p>The judge refused to find that the certificate was destroyed, but found as a fact that it was lost, and found for the plaintiff for the amount thereof, with interest at the rate of two per cent from its date to the date of the finding; and ordered judgment not to be entered without the production of the certificate until the filing of a bond by the plaintiff conditioned to save the defendant harmless, to the satisfaction of the court.</p> <p>If the plaintiff should be required, before taking judgment, to give bond, judgment was to be entered on the finding; otherwise judgment was to be entered in such manner and in such amount as should be according to law.</p>

<p>Contract, with a count in 'tort, against the defendant, as owner of the steamship Samaria, for damage to the plaintiff’s trunk and its contents. Trial in the Superior Court, without a jury, before Pitman, J., who reported the following case for the determination of this court.</p> <p>The material facts, as found by an auditor to whom the case was referred, were as follows. The plaintiff took passage on the defendant’s steamer from Liverpool to Boston. He had with him on the ship his trunk, containing articles of clothing and personal property reasonable and proper for an ocean traveller to carry as personal baggage, all of which were entirely ruined on the voyage by the negligence of the defendant. When the plaintiff engaged his passage in London, he received a passage ticket from the defendant’s agent there. This ticket consisted of a sheet of paper of large quarto size, the face and back of which were covered with written and printed matter. Near the top of the face of the ticket, after the name of the defendant corporation and its list of offices in Great Britain, appeared in bold type the following: “ Passengers’ Contract Ticket.” Upon the side margins were variqus printed notices to passengers, including the following: “ All passengers are requested to take notice that the owners of the ship do not hold themselves responsible for detention or delay arising from accident, extraordinary or unavoidable circumstances, nor for loss, detention, or damage to luggage.” The body of the face of the ticket contained statements of the rights of the passenger respecting his person and his baggage, the plaintiff’s name, age, and occupation, the bills of fare for each day of the week, and the hours for meals, etc. At the bottom was printed the following : “ Passengers’ luggage is carried only upon the conditions set forth on the back hereof.” Upon the back, among other printed matter, was the following: “ The company is not liable for loss of or injury to the passenger or his luggage, or delay in the voyage, whether arising from the act of God, the Queen’s enemies, perils of the sea, rivers, or navigation, restraint of princes, rulers, and peoples, barratry, or negligence of the company’s servants (whether on board the steamer or not), defect in the steamer, her machinery, gear, or fittings, or from any other cause of whatsoever nature.”</p> <p>When the plaintiff received his ticket, his attention was not called in any way to any limitation of the defendant’s liability.</p> <p>The judge, upon these facts, found and ruled “ that the contract was a British contract; that, by the English law, a carrier may by contract exempt himself from liability, even for loss caused by his negligence ,• that in this case, as the carrier has so attempted, and the terms are broad enough to exonerate him, the question remains of assent on the part of the plaintiff. This has been decided in Massachusetts to be a question of evidence, in which the lex fori is to govern; that although it has been decided that the law conclusively presumes that a consignor knows and assents to the terms of a bill of lading or a shipping receipt which he takes without dissent, yet a passenger ticket, even though it be called a ‘ contract ticket,’ does not stand on the same footing; that in this case assent is not a conclusion of law, and is not proved as a matter of fact.” Upon the whole case, the judge ruled that the defendant company was not exempted from liability by the contract ticket, and found for the plaintiff.</p> <p>If the rulings were wrong, the verdict was to be set aside, and judgment entered for the defendant; otherwise, the judgment was to be entered on the finding.</p>

<p>Lease—Guaranty of Rent — Renewal of Lease.</p> <p>A lease was made “ for the term of three years ” at a certain rent, the lessee “ to have the right to renew said lease for the further term of two years, if he shall so elect." A guaranty was given for the “ payment of the rent ” by the lessee, “ according to the terms of the lease, providing said lessee shall live to the end of the term.” The lessee elected to renew the lease. Held, that the guaranty did not extend to the additional two years.</p>

<p>A testatrix by her will gave to the Rev. S. C. of the town of S. $>5,000, which after his death was to go to the town, “ strictly on this condition, namely, that said town shall support fairly and permanently a Unitarian clergyman, in which case all interest accruing on above sum shall be used to aid in payment of his salary, failing which it shall revert to my heirs at law.” The town could not lawfully support the clergyman as required. Held, that the gift to the town failed, and the limitation to the heirs at law took effect immediately; and that the money would go to the testatrix’s next of kin.</p>

<p>Eminent Domain — Taking Land already devoted to Public Use — Compensation.</p> <p>The Legislature may take, or authorize a corporation to take, land for a public use, which has previously been appropriated by legislative authority to a different public use.</p> <p>The St. of 1884, c. 271, § 2, authorized the Framingham Water Company to take for a pumping station and filtering gallery land on the border of Farm Pond, which had already been properly procured by a railroad corporation for railroad purposes, and also to take a right of way over the railroad location for the purpose of gaining access to such land.</p> <p>The St. of 1884, c. 271, empowering a town water company to take land, and providing in § 3 that the damages therefor may be assessed as in the case of the laying out of highways, and in § 11 that the company may be required to give security for such damages “ satisfactory to the selectmen of said town,” failing which its rights shall be suspended except for making surveys, makes adequate provision for compensation for the land taken.</p>

<p>Metropolitan Sewerage Act — Constitutional Law.</p> <p>It is within the constitutional power of the Legislature to appropriate money from the treasury of the Commonwealth towards paying the cost of providing a system for the disposal of sewage, embracing in its benefits a number of cities and towns and a large population.</p> <p>The Legislature may also provide that the whole or a portion of the cost of such system of sewerage shall ultimately be borne by the cities and towns which will be able to avail themselves of such system, and that the money to pay the cost thereof shall be advanced in the first instance from the treasury of the Commonwealth, and be repaid by such cities and towns.</p> <p>It is no objection to a statute providing for such advancement of money from the treasury of the Commonwealth, and for a reimbursement thereof by the cities and towns, that the latter will have no ownership in the property of the sewers and works which they are required to pay for, and no right to use the same except under rules prescribed by the Legislature.</p> <p>In order to determine the proportion which each city and town which is able to use the system of sewerage shall contribute towards the cost and expense thereof, it is within the constitutional power of the Legislature to provide that this court shall appoint three commissioners, who shall, after due notice and hearing, and in such manner as they shall deem just and equitable, determine the proportion in which each city and town shall annually pay money into the treasury of the Commonwealth for the term of five years; their award to be returned into court, and to be binding for five years when accepted by the court; and it is not necessary to require that the sums so to be paid shall be in proportion to the benefits received.</p> <p>The cities and towns may be required to make such payments before the completion of the work.</p> <p>The facts that one of the towns included under the act has no local sewers except a main drain, and that another town so included already has an established and satisfactory system of local sewers discharging into the ocean, do not affect the constitutionality of the statute, but relate properly to the amount to be assessed upon those towns.</p>

<p>Bill in equity, filed in the Superior Court, for the reformation of a deed. The case was heard by Sherman, J., who found that the plaintiff was entitled to a decree; and the defendant alleged exceptions, which, so far as material to the point decided, appear in the opinion.</p>

<p>Obtaining Goods by False Pretences — Indictment—Representation of Fact—• Evidence.</p> <p>To constitute the offence of obtaining goods under the false pretence of carrying on business and dealing in the ordinary course of trade within the Pub. Sts. c. 208, § 60, it is not necessary that the pretence should be in the express words set out in the statute; it is enough if it is plainly and intelligibly made in any form of words.</p> <p>An indictment alleged that S. S. D. of B., intending to obtain certain goods under “the false color and pretence of carrying on business and dealing in the ordinary course of trade,” did falsely pretend and represent that “he, said D., was then and there carrying on the business of selling dry goods, wares, and merchandise at retail in two certain stores there in said B., and then and therein in said business dealing in the ordinary course of retail trade ”; and “ that he, said D., was then and there dealing in dry goods, wares, and merchandise in the ordinary course of retail trade, and in the manner in which dealers usually conduct and carry on such business.” Then followed averments of pretences, all of which were merely the particulars and details which made up this general representation and pretence; and it was alleged that by these false representations and pretences the defendant obtained the goods. Held, that the indictment was intended to charge an offence under § 60 of the Pub. Sts. c. 203, and under no other; and that the allegations were sufficient for that purpose.</p> <p>Under the Pub. Sts. c. 203, § 60, providing for the punishment of one who, “ with intent to defraud under false color and pretence of carrying on business and dealing in the ordinary course of trade, obtains from any person goods or chattels,” a representation by a purchaser of goods that he wishes them for purposes of resale, in the regular course of his business as a retail dealer therein, will be taken as a statement of fact, and not as a promise, or a mere expression of a purpose, and if false and fraudulent will justify his conviction of such offence.</p> <p>On an indictment under the Pub. Sts. c. 203, § 60, against a purchaser of goods for obtaining them on the false pretence of carrying on business and dealing in the ordinary course of trade, the testimony of the sellers of the goods as to what led them to make the sales is properly admitted.</p> <p>At the trial of such an indictment, where it appears that the defendant, who previously had paid cash for his purchases, has bought from time to time large lots of goods on long terms of credit, and, instead of selling them at retail in the usual way, has disposed of them for less than half their value, the additional fact that, within about two or three months after the first of these transactions, he went into insolvency and filed a schedule showing very large indebtedness against him, is competent to be considered as confirmatory evidence of his fraudulent purpose in obtaining the goods.</p>

Appeal, by residuary legatees under the will of Anna Jaques, from a decree of the Probate Court allowing to William H. Swasey, the executor, the sum of ten thousand dollars paid by him to Harriet M. Downs as a legacy under the will. The case was heard by Bevens, J., who reported it for the consideration of the full court. The facts appear in the opinion.