Volume 154 — Massachusetts Reports

<p>Tort, to recover .damages for alleged wrongful acts of the defendant, in that, in an action of contract, brought by him against the plaintiff to recover the sum of $4,522.45, he maliciously placed the ad damnum in the writ at $40,000, and maliciously caused to be made various attachments, each in the sum last named, upon the real and personal property of the plaintiff, to his great damage.</p> <p>At the trial in the Superior Court, before Lathrop, J., the plaintiff offered to prove that the defendant on February 7,1889, sued out a writ in an action of contract, in which the damages were laid at $40,000; that on February 9 two successive attachments, each in the sum of $40,000, were, under the defendant’s instructions, placed on the plaintiff’s real estate, which was worth many times the amount owed to the defendant by the plaintiff; that on February 12, 1889, the defendant caused an attachment in the same sum to be placed upon the plaintiff’s stock of goods and merchandise, valued at about $100,000, situated in his stores in Boston, and a keeper was put over the same who remained there for two days ; that at this time the plaintiff was, as the defendant knew, absent from the Commonwealth for the benefit of his health; that' subsequently, in the absence of the plaintiff and upon the statement of his counsel, an order was obtained in the Superior Court reducing the ad damnum in the writ to $10,000; that the defendant did what he did maliciously, and for the avowed purpose of injuring the plaintiff; and that by these acts of the defendant the plaintiff had been greatly damaged. It also appeared that the original action in which the attachments were made had not been terminated when the present action was brought, but was still pending before an auditor.</p> <p>The judge ruled that the present action was prematurely brought, and ordered a nonsuit to be entered; and the plaintiff alleged exceptions.</p>

<p>Contract, for the price of goods sold and delivered by the plaintiff to the defendant. The answer contained a general denial, and alleged, in addition, that by an agreement in writing between the parties the defendants were to be selling agents for the plaintiff for certain goods manufactured by it, and at prices fixed by it, and were “ to have the privilege of purchasing goods on their own account at net prices less their commission of the above mentioned line of goods,” and the plaintiff was to pay the defendants commissions monthly on such purchases and sales; that the plaintiff broke this agreement by refusing to fill contracts made by the defendants, and to pay them their commissions, and to allow them to purchase goods on their own account; that subsequently an oral agreement was made between the parties, by which the goods were to conform in quality and weight to certain samples, and to be sold at a certain price; and that the defendants advertised the goods as conforming to the samples at a price based upon the price agreed upon with the plaintiff, and the plaintiff increased that price and reduced the weight and quality, because of which customers refused to take the goods. The defendants also filed a declaration in set-off.</p> <p>Trial in the Superior Court, before Blodgett, J., who, after a verdict for the plaintiff, reported the case for the determination of this court, in substance as follows.</p> <p>The defendants admitted the sale and delivery of the goods specified in the declaration at the prices therein mentioned, and that there was no defect in the quality of any of the goods so sold, and also admitted that they were not entitled to maintain their declaration in set-off. The goods sold were goods which the defendants were entitled to buy, and the plaintiff was bound to sell, under one of the provisions of the contract between the parties set out in the answer. The judge ruled that none of the matters alleged in the defendant’s answer, other than those waived by the admission as before stated, would constitute, if proved, a defence to this action, or would entitle the defendants to any reduction of the damages claimed by the plaintiff; to which ruling, the defendants excepted.</p> <p>If the ruling was right, judgment was ,to be entered on the verdict; otherwise, the verdict was to be set aside and a new trial granted.</p>

<p>Bill in equity to compel George A. Dary, trustee under the will of Miriam W. Stedman, to pay over to Abby S. T. Hovey, administratrix of the estate of Charles A. Hovey, one quarter of one ninth of the residue of the estate of Mrs. Stedman. The case was heard by Holmes, J., who reported it for the consideration of the full court, in substance as follows.</p> <p>The other defendant, who was joined by order of the court, is Miriam P. Adams, the daughter and heir at law of Charles A. Hovey. Mrs. Stedman by her will appointed her husband and two sons executors, and among other things gave six ninths of the residue of her estate to trustees, in trust to pay the income of one ninth to her son, Josiah Stedman, Jr., and the income of each of the other five ninths to each of her five daughters, one of whom was Miriam W. Priest, during their respective lives, and “ in trust further, upon the decease of my said son Josiah Stedman, Jr., and of my said daughters as the same shall happen in the order of Providence, leaving issue, then to grant, surrender, and 'convey to such issue, their heirs and assigns forever, the said share or sixth part of which the parent received the income as aforesaid, to be equally divided among such issue, share and share alike; but in the event of the decease of my said son Josiah Stedman, Jr., or either of my aforesaid daughters, without leaving issue, then the share of said trust property, with all accumulation thereon, so devised for the use of such son and daughter so dying without issue, shall be held by my trustees aforesaid, for the use of my surviving sons or daughters, to be equally divided among them, and the shares devised in trust are to be held upon the like trusts and purposes herein already before declared and finally to be conveyed, divided, and distributed among their issue as hereinbefore provided; and in order to facilitate the settlement of my estate I do hereby authorize and empower my said executors hereinafter named, or such of them as shall accept the trusts, to grant, sell, alien, or convey any part or the whole of the real estate of which I shall or may die seised or possessed, at and for such prices or sums of money as he or they may think proper, with full power to sign, seal, acknowledge, and deliver any deed or deeds which counsel learned in the law may judge necessary and proper to convey a complete and perfect title in fee simple to such real estate; the proceeds of such sales to be held and accounted for by my said executors in lieu and instead of such real estate, but without any obligation on the part of the purchaser or purchasers to see to the application of the purchase money, any law or usage to the contrary notwithstanding, and all this without any application to any court or courts for such license; and moreover, from” and after the time of the transfer of my estate into the hands and custody of my said trustees, as in my said will is contemplated, I do give and grant to my said trustees the same power of sale hereinbefore given and granted to my said executors, authorizing my said trustees from time to time to convert real estate into personal and personal estate into real estate as convenience may require, provided however my said trustees are to hold the proceeds of such real estate as they may make sale of for the same uses and purposes, and none other, as the real estate so sold should have been held for.”</p> <p>In 1867, after the death of the testatrix, Josiah S. Priest, one of the sons of Miriam W. Priest, and two other sons of hers who did not survive her, conveyed by deed, in consideration of one thousand dollars, their interest under the will to Charles A. Hovey. The defendant trustee, acting under the power given by the will, and by direction of the Probate Court, sold most of the real estate, consisting of four separate parcels, for $31,300, two of them being sold in 1883 and 1885 respectively, and the remaining two in 1888. Hovey married a second time, and died on June 19, 1886, intestate, leaving a daughter, Miriam P. Adams, and a wife, the plaintiff. Mrs. Priest died on May 31, 1888, leaving issue, including Josiah S. Priest. It was agreed that, as things turned out, the deed to Hovey operated to convey one quarter of the ninth of which Mrs. Priest had enjoyed the income. The defendant, acting under a decree of the Probate Court made on November 12, 1888, paid over to Miriam P. Adams one quarter of the one ninth of the proceeds of the real estate sold by him. The only question considered was whether, as between the defendant trustee and the administratrix and the heir at law of Hovey, the proceeds of the sales made by the trustee were real or personal estate.</p> <p>If the defendant was protected by this decree, or if the proceeds were to be treated as real estate, the bill was to be dismissed ; otherwise, a decree was to be entered for the plaintiff.</p> <p>The case was argued at the bar in November, 1890, and after-wards, in February, 1891, was submitted on the- briefs to all the judges.</p>

<p>Tort for an assault and battery. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence that the plaintiff, who was in the defendant’s employ, went to the defendant’s office where a dispute arose respecting the amount due the plaintiff for work done for the defendant; and that the defendant ordered the plaintiff to leave the office, whereupon he left. The plaintiff testified that after leaving the office it occurred to him that he had a bill against the defendant for certain hay, and that upon his returning to the defendant’s office for the purpose of demanding payment of this bill, he was struck by the defendant. A witness for the plaintiff testified, on cross-examination, that he knew the defendant very well. He was then asked, against the plaintiff’s objection, “ Is Mr. Ross a thoroughly peaceable man as far as you know?” and he was permitted to answer, “As far as I know; I never heard of his making any assault before ”; and the plaintiff excepted.</p> <p>The judge instructed the jury, among other things, “ that the secret purpose of the plaintiff to return to the store for the sake of getting payment of his hay bill, he having been ordered out, is not to bear upon the conduct which the defendant should exercise toward the plaintiff, unless the defendant knew, or had reason to know or believe, that the return of the plaintiff was for a purpose other than that for which he was originally there.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tax — Exemption — Literary Purpose.</p> <p>If a corporation, organized "for the purpose of cliffusing knowledge and promoting intellectual improvement ” in a certain city, occupies a hall in a building owned by it for a few evenings only each winter for a course of lectures on literary and scientific subjects, and during the rest of the year lets the hall for various purposes, the estate is not exempt from taxation under the Pub. Sts. c. 11, § 5, cl. 3, although the income derived from letting the hall is devoted exclusively to making provision for such courses of lectures.</p>

<p>Personal Injuries — Negligence — Fencing Railroad—View by Jury.</p> <p>A boy strayed from a public street upon an adjacent railroad track, and was run over and injured at a point where it was customary to unload freight from the cars on to teams standing in the street. At the trial, sixteen months later, of an action against the railroad company to recover for such injuries because of its neglect to fence the track, the plaintiff’s evidence did not show affirmatively that a fence at such point would' not have obstructed the convenient use of the railroad. The presiding judge ruled that the plaintiff could not recover, and ordered a verdict for the defendant; and the plaintiff alleged exceptions which recited that the jury took “a view of the premises,” without more. Held, that the plaintiff showed no ground of exception.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. At the trial in the Superior Court, before Lathrop, J., there was evidence tending to prove the following facts.</p> <p>The defendant was a manufacturer of candy, and on October 9, 1888, the plaintiff, who was then twenty years old and had been in his employ for about a year, was set to work by his foreman to clean one of the machines in his factory. This machine was fastened to the floor, and consisted in part of an upright cylinder for receiving the sugar paste out of which a form of candy was made. At the bottom of the cylinder was a revolving screw for seizing and forcing the paste through the small holes of a disk, placed opposite the end of it, whence it appeared in the form of long pipe-stems, which were then dried and cut up into pieces. This screw was made to revolve by a belt connecting a fixed pulley on the machine with a driving pulley attached to the main shaft of the factory. Alongside this fixed pulley, and separated from it by the distance of half an inch, was a loose pulley on the machine. To stop the machine when in motion, it was only necessary to throw the belt from the fixed to the loose pulley by means of a shipper, so called, which was made of wood and placed at a distance of about eighteen inches from the cylinder, and worked up and down. To shift the belt from the loose to the fixed pulley, the shipper was pulled down. This shipper was improperly secured at the end, and was loose. When the machine was to be cleaned, a trough upon the top of the cylinder, and from which the paste was fed into it, was taken off, and the interior of the cylinder including the screw exposed to view. When the plaintiff was ordered to clean the machine, it was not in motion. The cylinder was cleaned by pouring in hot water to melt the paste sticking to the different portions of its interior, so that it would float off with the water through the bottom of the machine, or by scraping off such paste therefrom. A small iron scraper was sometimes used thus to remove the paste, and rags were used to wipe out the inside of the cylinder. The plaintiff proceeded to clean the machine by pouring hot water into the cylinder to melt the paste still sticking to iv,. Some of the paste stuck to the screw, and the plaintiff put her left hand down into the cylinder to take it off with her fingers. At this moment the belt shifted from the loose pulley to the fixed pulley, and the screw began to revolve, and the plaintiff’s hand and arm were caught, and she suffered the injuries in question.</p> <p>Other machines in the defendant’s factory had previously started of themselves, and this machine, after the belt had been thrown off by the shipper, had started of itself a month before the accident, as well as afterwards. One Genary, an expert called by the plaintiff, testified, among other things, that in his opinion the machine was defective in that it was not put up properly; that the driving pulley upon the main shaft had a convex surface, instead of a flat surface such as it should have had, and was so situated with reference to the fixed pulley that the tendency was to draw the belt from the loose pulley when the machine was not in motion on to the fixed pulley, and thus to start the machine; and that this tendency was increased by the looseness of the shipper. The plaintiff testified that when she put her hand in the cylinder she did not know that there was any danger in so doing; that she had never seen any other machine that she had worked on start of itself; but that she had seen other machines in the factory, upon which she was not at work, start of themselves, which fact she had not reported because she did not think it her duty to do so.</p> <p>The defendant testified that he had never had his attention called to the fact that the machine started of itself until this accident ; and that he had never heard and did not believe that the machine could start of itself. The defendant’s foreman testified that in his judgment the machine could not start of itself without help, and that he had never heard or known that anything was the matter with the machine; and the defendant’s engineer and carpenter both testified that they had never heard of this machine starting of itself.</p> <p>The judge refused to rule, as requested by the defendant, that the plaintiff was not entitled to recover, and submitted the case to the jury; and the defendant, after a verdict for the plaintiff, alleged exceptions.</p>

<p>Arrest without a Warrant — Misdemeanor.</p> <p>A peace officer is not authorized to make an arrest in this State, without a warrant, for a past misdemeanor committed in another State.</p>

Contract for breach of covenant in a bond for a deed. Trial in the Superior Court, before Thompson, J., who ordered a verdict for the defendant, and reported the case for the determination of this court, in substance as follows.

<p>Personal Injuries — Master and Servant—Employers' Liability Act.</p> <p>In an action for personal injuries brought by an employee, in which there were two' counts in the declaration, the first at common law and the second under the St. of 1887, c. 270, § 1, there was -evidence that the plaintiff, while engaged in helping another servant of the defendant in planing a board on a planing machine, started to go to the other end of the machine, slipped or stumbled, put his' hand on the machine, and was hurt; that there was an open floor in front of the machine by which he could have gone, although it was somewhat obstructed by unfinished work, but he went back of the machine instead; that there was a space of three feet and one inch between the back of the planing machine and a band saw at which a man was working within this space; that some small pieces of wood had been piled up against the back of the planing machine by a fellow servant of the plaintiff, making a pile about a foot high and eight and one quarter inches wide, and leaving a clear space of not more than fourteen inches; and that the plaintiff had known of this pile for about a fortnight. The plaintiff, as required by the presiding judge, elected to stand upon the second count, whereupon the judge ruled that there was no evidence to go to the jury, and ordered a verdict for the defendant. Held, that the plaintiff had no ground of exception.</p>

<p>Employers' Liability Act — Loss of Life — Due Care — Burden of Proof— Report after Nonsuit.</p> <p>If, in an action brought under the St. of 1887, c. 270, § 2, for causing the death of an employee, the evidence introduced is as consistent with carelessness on his part as with his exercise of due care, the plaintiff does not sustain the burden of proof, under § 1, that the deceased was in the exercise of due care and diligence at the time he was killed, and the action cannot be maintained.</p>

<p>Exceptions — Trustee Process — Mortgaged Personal Property — Attachment and Sale — Interest.</p> <p>Questions of law arising upon an order of the Superior Court, made pursuant to the Pub. Sts. c. 161, § 80, for the payment to a mortgagee of personal property under attachment of what is due on the mortgage, may thereupon be brought to this court by a bill of exceptions.</p> <p>The provisions for the sale of personal property under attachment contained in the Pub. Sts. c. 161, §§ 89-103, if applicable to mortgaged personal property which has been attached, are nevertheless subordinate to the rights of the mortgagee, under § 80 of that chapter, to have the amount due on the mortgage ascertained as therein provided, and payment thereof ordered or the property restored, irrespective of any such sale or the proceeds thereof.</p> <p>If personal property mortgaged to secure a note bearing interest at a rate greater than six per cent is attached, and an order made under the Pub. Sts. c. 161, § 80, for the payment of what is due thereon to the mortgagee, interest is to be reckoned on the note at the same rate up to the date of the order, notwithstanding the attachment.</p>

<p>Bill in equity, filed March 7, 1888, for the reformation of a deed given by the first named plaintiff, as trustee under the will of Moses Pond, to Ellen M. Hopkins and Gertrude D. Payne, two daughters of Ellen M. Dunlap, a deceased daughter of the testator, who alone defended. The case was heard by C. Allen, J., and was as follows.</p> <p>Moses Pond died on May 3, 1870, leaving four sons and three daughters, who either survived him or left issue surviving at his death. The widow also survived him, and died on August 26,1878. His will, after various bequests and a provision for an annuity in favor of the widow, which was to be a charge on both his real and personal estate, by the fifth article, conveyed all his real estate to “ my friend Samuel G. Bowdlear and my sons Joseph A. Pond and George E. Pond,” in trust to pay one third of the net income quarterly to each of his three daughters, Ellen M. Dunlap, Eliza B. Pond, and Caroline A. Prince during their natural lives respectively, and on the death of each daughter to convey one undivided third part of such real estate as the daughter so dying should by will direct; but in case such daughter died intestate, then to convey such third part in fee to her heirs. By the same article, he also authorized his trustees to mortgage the estate to raise money “ for the purpose of paying off any subsisting mortgages on said premises, and also for the purpose of paying any money which they may be required to pay under the seventh article of this will.” By the sixth article of the will, the residue of the testator’s estate was given to his four sons, to be equally divided between them, to be held by them “ subject however to the provisions in the next article.” The seventh article of the will was as follows : “ I intend to make the division of my property as nearly equal as possible, so that each of my sons and daughters shall have one seventh of it. But as the value of the real estate given to my daughters may vary, by reason of the payment of mortgages and other circumstances, and the residue left to my sons may also be lessened or increased from various causes, therefore, if any one of my said sons or daughters, or said Bowdlear, shall think the division I have made of my property unequal, then, at any time within two years after my death, on the request of either of my said sons or daughters, or said Bowdlear, a valuation shall be made of the said real estate given in trust for my said daughters, and also of the said residue of my property left to my said sons, the valuation to be made as it was at the day of my death, and if on such valuation it shall appear that the value of my interest in said real property given in trust for my said daughters subject to the mortgages thereon is not equal to three sevenths of all the property, real, personal, and mixed, left by me, after deducting debts, legacies, and charges of administration, then I direct my executors hereinafter named to pay out of my personal property to the said trustees such sum as may be necessary to make the amount of property held by them three sevenths of all the property I may leave, after deducting debts, legacies, and charges of administration, the sum so paid to said trustees to be held and safely invested on the same trusts as are declared concerning the said real estate given in trust, and if possible to be applied towards payment of the mortgages on said real property given in trust; but if, on the other hand, the said residue given my said sons should not be equal to four sevenths of the whole value of all the property, real, personal, and mixed, left by me, after deducting debts, legacies, and charges of administration, then I direct the trustees named in the fifth article to pay to each of my four sons such sum as may be necessary to make the amount of property received by each of my said sons under this will one seventh of all the property I may leave after deducting debts, legacies, and charges of administration; and in order to facilitate the valuation of my property for the purpose aforesaid, in case the valuation made by the appraisers appointed by the Probate Court is not satisfactory, I direct that one person be appointed for the purpose by said Bowdlear, one by said executors, and the third by the two so chosen, whose valuation or that of a majority of them shall be final for the purpose aforesaid.”</p> <p>Neither Bowdlear nor either of the testator’s sons or daughters requested a valuation of the testator’s estate under article seven of the will within two years after the testator’s death. An appraisal of the estate was made in March, 1872, by three appraisers appointed by the Probate Court, whose return however was never sworn to by either of the executors or filed in court. This appraisal was mislaid, and was not found again until April, 1889, and its contents were not known to the defendants. The estate remained undivided by the consent of those interested therein, and the entire income was treated as a common fund, and distributed semiannually among those entitled thereto, from the time of the death of the testator to the filing of the bill. If the property were to be divided as directed by the will, there would be an inequality in the shares, and the daughters’ shares would be the larger. In August, 1879, two of the sons of the testator received their respective shares of the estate by having the same credited against debts owed by them to the estate. On October 20 of the same year the first named plaintiff was appointed and qualified as sole trustee under the will, and he immediately of his own motion, as directed by the will, executed the deed in question, of one undivided third part of the testator’s real estate which he held as such trustee, to the defendants. On January 30, 1880, the heirs of Moses Pond entered into an agreement, reciting that they each had consented to the postponement of the final settlement of the estate, owing to the depressed condition of the real estate market and to other causes, that two of the testator’s sons who had received their shares in full were paid the same as a step towards such settlement, and that the balance of the estate was held for the benefit of the other parties to the agreement. The parties also agreed to a valuation of the estate made on July 1, 1879, which appraisement, “ made pursuant to a direction in the will of Moses Pond and for the purposes of the trust in said will created, must be taken as final.” After further recitals relating to the management of the estate, but not mentioning the deed in question, the parties to the agreement released the executors and trustee of the estate of Moses Pond “ from any liability which may have been or may be incurred by them or either of them by reason of the facts or things herein recited as having been done.” This agreement was signed by the guardian of Gertrude D. Payne in her behalf, she being a minor.</p> <p>The plaintiffs desired to mortgage the real estate of the testator to raise funds to equalize the shares of the sons and daughters, but the defendants refused to mortgage the portion conveyed to them by the deed in question. The plaintiffs contended that this deed, made by the trustee without first having placed a mortgage on the entire real estate for the purpose of equalizing such shares, was contrary to the testator’s intention and was void, and ought therefore to be set aside, or reformed so that it should appear that the property was conveyed subject to liability to such mortgage.</p> <p>The judge dismissed the bill, with costs; and the plaintiffs appealed to the full court.</p>

<p>Devise in Trust—“ Heirs at Law ”— Sale of Real Estate—Wife as Heir of Husband.</p> <p>A testator domiciled in this Commonwealth by his will gave the residue of his estate, “real, personal, and mixed,” in trust for the benefit of his wife, with a power in the trustee to sell the whole or any part thereof, and directed the trustee, “ upon the decease of my said wife, then to pay and convey in fee all the trust property, as it then exists " to the testator’s brother, “ if then living, but if he is not then living, then to convey the same in fee to his then heirs at law.” The brother survived the testator and died before the wife, intestate, and domiciled in another State, leaving a sister as his only next of kin, and a widow. Both of these survived the testator’s wife, the brother’s widow having meanwhile married again. The trustee sold the real estate, and the trust fund amounted at the death of the testator’s wife to more than $20,000. Held, that the fund was given to those who would be entitled by the laws of this State to succeed to real estate in case of intestacy if the brother had died at the moment appointed for the conveyance; and that the brother’s widow was entitled to an estate of inheritance in the fund up to $5,000, under the Pub. Sts. c. 124, § 3, but not to a life interest under that statute in one half of the remainder of the fund.</p>

<p>Equity — Setting aside Fraudulent Sale — Return of Purchase Money — Offer of Repayment in Bill — Interest.</p> <p>Upon a bill in equity to set aside a sale by an assignee in insolvency of the property of the insolvent debtor, where, upon a full report of the evidence, there was evidence that the purchaser knew that the price paid by him was too small, it was held that the findings of the single justice who saw and heard the witnesses, that the sale was made for a grossly inadequate price in fraud of the creditors, and that the purchaser participated in the fraud, ought not to be disturbed; and the sale was set aside, with costs to the plaintiff.</p> <p>If an assignee in insolvency sells property of the insolvent debtor under license of the Probate Court, and by collusion with the purchaser an inadequate price is received, the purchaser, upon the sale being set aside, is entitled to a return of the purchase money, and may be allowed interest from the date of payment, and is to be held chargeable with the profits, if any, received by him.</p> <p>A bill in equity, brought by an assignee in insolvency for the insolvent’s benefit, to set aside a collusive sale made by a former assignee, need not contain an offer to repay the purchase money, but the court may make the relief granted conditional upon such repayment.</p>

<p>Intoxicating Liquors — Illegal Transportation—Aiding and Abetting.</p> <p>An employee of an express company, which is engaged in the illegal transportation of intoxicating liquors to a no license city, may himself be convicted of that offence, if after their arrival in the city he aids in forwarding them to their destination therein, having reasonable cause to believe that the same were intended to be sold there in violation of law, although he had no personal knowledge that the particular liquors had been ordered or were coming until they reached the company’s city office, and did not himself bring, or manually aid in bringing them into the city, and could not have prevented their transportation there.</p>

<p>Tort for personal injuries occasioned to the plaintiff by an alleged defect in Washington Street in the defendant city. At the trial in the Superior Court, before Staples, J., the jury 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>

Indictment in five counts for a conspiracy to obtain goods by false pretences.

<p>Contract, by the administratrix of the estate of Charles Badenfeld, to recover five thousand dollars on a certificate of membership in the defendant association issued to the intestate, who was the husband of the plaintiff. The certificate contained, among other provisions not material, the following: “ In the event said member shall sustain during the continuance of his membership bodily injuries effected through external, violent, and accidental means, within the meaning of the conditions herein recited, and such injuries alone shall have occasioned death within ninety days from the happening thereof, then we agree to pay to his wife, Bertha Badenfeld, if surviving, or, if not surviving, to his heirs or legal representatives, five thousand dollars, . . . provided always, First, members are required to use all due diligence for personal safety and protection. . . . Fifth, ... no claim shall be made under this certificate . . . when death or injury may have happened in consequence ... of any voluntary exposure to unnecessary danger. . . . Ninth, no suit or proceeding at law or in equity shall be brought to recover any sum herein, unless the same has been first referred to the arbitration of just and competent men.”</p> <p>At the trial in the Superior Court, before Pitman, J., it appeared in evidence that the intestate came to his death in the train-house of the Boston and Lowell Railroad Station in Boston, on December 26, 1888. It was admitted that there had been no reference to arbitration of the plaintiff’s claim, either as regards the amount thereof, or as to the question of the liability of the defendant; and that the plaintiff had never requested such arbitration.</p> <p>There was evidence that the intestate came into the train-house at about half past nine o’clock on the morning of the day of the accident; that'in this train-house were numerous parallel tracks for passenger trains, with platforms between extending out of the train-house to the north; that the most easterly track was called track No. 8, and the track next westerly, and separated from it by a platform, was called track No. 7; that between track No. 8 and the easterly wall of the train-house was a platform, over which a car standing on the track would extend about six inches; that projecting from such easterly wall were iron girders twenty-five feet apart and supporting the roof, which rendered this platform of varying width, being about five and a half feet in the clear between the edge of the same and the wall itself, butj only about two and a half feet where the girders projected into the platform, thus leaving a space of about two feet only between the side of a passenger car standing on the track and the face of the girders; that this platform was intended for the use of train hands, and not for that of passengers, though sometimes used by the latter; that the platform intended for the use of passengers, and which was generally used by them in getting upon or in alighting from cars standing on track No. 8, was the platform between that track and track No. 7.</p> <p>There was further evidence that the intestate came into the train-house alone, and inquired of the gateman at one of the gates through which passengers went in going to and from the cars, respecting the trains for East Cambridge, and was told that the next train for that point left at a quarter past ten from track No. 7; that he at the same time showed the gateman a ticket for a single passage between Boston and East Cambridge; that the quarter past ten train had not yet backed into the train-house, and the only train then standing in the train-house was one standing on track No. 8, which was due to leave at ten o’clock A. M.; that the intestate, upon being told that the train then standing on track No. 8 left at ten o’clock, asked the gateman whether that train did not stop at East Cambridge, and was told that it did not; that the intestate then proceeded to walk about the train-house, and up and down the platforms between the tracks, and was last seen by the gateman at about a quarter before ten o’clock, when the intestate accosted him; that the ten o’clock train was made up of two passenger cars, the forward one of the two being a smoking car; that upon the departure of the ten o’clock train, and as soon as the rear end of the rear car had passed along, the gateman saw the intestate lying dead upon track No. 8, his head lying upon the westerly or left hand side of the more easterly rail nearly severed from the body, and the rest of the body crowded in between that side of the rail and the edge of the outside platform; that at the time the train started, the intestate was not upon the rear platform of the smoking car, or upon either platform of the rear car; and that, as this train stood in the station, the forward platform of the smoking car was about twenty feet from the point upon the track where the body of the intestate was found. There was no evidence that the intestate was seen by any one after he spoke to the gateman, about a quarter before ten o’clock, and no evidence of the cause of his falling upon the track and in front of the car wheels, which passed over him and occasioned his death.</p> <p>At the close of the plaintiffs evidence, and also at the close of the defendant’s evidence, the defendant requested the judge to nonsuit the plaintiff, on the ground that, there having been no arbitration or request for arbitration, the present action could not be maintained; but the judge refused to do so, and the defendant excepted. The defendant also requested the judge, at the close of all the evidence, to direct a verdict for the defendant, which the judge also refused to do, and the defendant excepted. The defendant also requested the judge to give the following instructions to the jury:</p> <p>“ 1. That, upon all the evidence in the case, the plaintiff is not entitled to maintain the present action. . . .</p> <p>“ 3. That if the jury find that the deceased, while on the platform on the right of track No. 8, fell, or was struck by the moving train and knocked under the car, the plaintiff is not entitled to recover in the present action.</p> <p>“ 4. That if the jury find that the deceased attempted to get off the train while in motion, and in so doing fell or was knocked under the car, then the plaintiff is not entitled to maintain the present action.</p> <p>“5. That if the jury find that the deceased, while being on the platform above mentioned, had a fit or illness of any kind and fell under the car, then the plaintiff cannot recover in the present action.</p> <p>“ 6. That the deceased, in being on the platform in question, was not using all due diligence for personal safety and protection.</p> <p>“ 7. That if the jury find that this platform on the right of track No. 8 was obviously not intended for the use of passengers, and was obviously a dangerous place, then the deceased was not in the exercise of all due diligence for personal safety and protection ; and if the jury find that the deceased, while being on such platform, by reason of illness or otherwise, fell or was struck by the moving train and knocked under the car, then the plaintiff cannot recover in the present action.</p> <p>“ 8. That if the jury find that the deceased voluntarily placed himself in a position of danger, and his death occurred in consequence thereof, the plaintiff cannot recover.”</p> <p>The judge refused to give these instructions, but instructed the jury, among other things, as follows:</p> <p>“ Did the deceased meet his death in a careless way ? that is, with a lack on his part of due diligence ? Of course that renders it necessary to discuss somewhat and to apply the law somewhat to hypothetical cases.” The judge then read the defendant’s seventh request. “ I cannot give you that instruction in the way in which it is asked. I cannot rule to you, as matter of law, that the finding of the party upon that platform, whatever you may think of the situation of the platform, or its use or intended use, necessarily, as matter of law, proves that the party was not in the exercise of due care. Of course, if you. find that that platform was not intended and not prepared for the use of passengers, and did not present any invitation to passengers, and was obviously a dangerous place, then the law would impose upon him a different measure of care when he was in such a dangerous place than the rule of due diligence would impose upon him if he was in a safe place, and it may be that the jury would be justified in finding, if he was there unnecessarily and improperly, with no excuse or reason for being there, that that act constituted a lack of proper care. But, on the other hand, I cannot say that you may not find in the case — it is not for me to say whether you can or cannot — reasons or excuses for his being there which would be consistent with the exercise of due care in being in that place, notwithstanding the contingencies and dangers named in the prayer. I must therefore leave that to you upon this consideration.” The judge then read the eighth request of the defendant. “ I give you that instruction, with this qualification: 6 If the deceased voluntarily placed himself in a position of danger, without any reasonable excuse therefor, then the plaintiff cannot recover.’ The other prayer which I shall give you [the fourth] relates to his leaving the train, upon the suggestion that he left the train while it was in motion ; and the law upon that matter I may as well give in the exact language of the Supreme Court.” The judge then quoted the opinion in Gavett v. Manchester & Lawrence Railroad, 16 Gray, 501, 507, beginning at the words, “ It cannot be doubted,” and ending with the words, “ evidence of carelessness ”; and then proceeded: “ It will be for you to say, if you reach this part of the case, whether the defendant, upon all the evidence and upon all the circumstances of the case, has satisfied you, as in other civil cases, so that you can feel that degree of assurance that you would act upon in a business matter, — has made it so probable that you would say, speaking in a business way, that you were satisfied that the deceased was not in the exercise of due diligence. Of course, you are not required to be sure of it, but only to be satisfied by a fair preponderance of the evidence. If it is left in such a state that you cannot be satisfied, then the defendant has failed in its attempt to make out that defence. To recapitulate. You will first determine whether this is a case of accidental death, or a case of suicide, the burden being upon the plaintiff in that. If you decide that in favor of the plaintiff, you will then decide whether the deceased was in the exercise of due diligence; or rather, more exactly, whether the defendant has proved that he was not in the exercise of due diligence. If you find either of these propositions as the defendant contends, then the defendant is entitled to your verdict ; if you find them both as the plaintiff contends, then your verdict will be for the plaintiff for the amount which I have indicated.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract to recover a balance due under a building contract. Trial in the Superior Court, before Blodgett, J., who ruled, against the defendant’s objection, that a certain claim of the defendant could not be sustained upon evidence introduced by him, and directed the jury not to consider it; and, after a verdict for the plaintiff, the defendant alleged exceptions. The nature of the claim and the evidence appears in the opinion.

<p>Judgment recovered in another State — Service — Agreed Statement — Inference of Fact—Practice.</p> <p>The presumption in favor of the validity of a judgment rendered in another State does not extend to a case where it appears from the record that the defendant was not a resident of that State, and it does not appear that service of process was made on him there.</p> <p>An order of notice, issued by the Supreme Court of New Hampshire, recited that the defendant in an action brought therein was not a resident of that State, and directed service upon him by publication, or by giving him a copy in hand, or by leaving it at his last and usual place of abode; and the officer's return thereon recited that he gave to the defendant such a copy, but did not disclose where he did so. In an action brought here on a judgment subsequently recovered there, an agreed statement of facts, which contained a stipulation that inferences of fact might be drawn, recited only that the order was served “ either in New Hampshire or Massachusetts,” without more. Held, that it did not appear that there was service of process on the original defendant in New Hampshire, and that the judgment must be treated as invalid.</p> <p>It seems that, if it is desired to present to the full court the question of law whether an agreed statement of facts will warrant a particular inference of fact, it can best be done by an exception taken at the hearing.</p>

<p>Bill in equity, for the specific performance of an agreement between the plaintiff and the defendant. Hearing before Knowlton, J., who reported the case for the consideration of the full court, such decree to be entered as law and equity might require. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1890, and afterwards, in June, 1891, was submitted on the briefs to all the judges, except Barker, J.</p>

<p>Eminent Domain — Nuisance — Remedy.</p> <p>The St. of 1881, c. 303, § 3, empowering the city of Boston, for the protection of its water supply and the abatement of a nuisance, to take land at or near the line of a certain sewer and to construct works for treating the sewage and freeing it from noxious and offensive matters, and providing for compensation for the land so taken, did not authorize the city to create a serious nuisance to the neighboring estate of a private owner by offensive odors and filthy percolations into and through the soil; and such a nuisance, if created, does not constitute a substantial taking of such neighboring estate, compensation for which must be sought under the statute, but recovery therefor may be had in an action of tort for damages.</p>

<p>Contract, with a count in tort, by the administrator of Luigi Dama, to recover the proceeds of certain coupons collected by the defendant. At the trial in the Superior Court, before Levthrop, J., the defendant testified, in substance, that before June 10, 1887, he had rendered certain services for the intestate, who was his brother in law, for which he had not been paid, and that on that date the intestate, being on the eve of departing for San Francisco, delivered the coupons in question to him, and told him to remit the proceeds thereof to the intestate, but if the intestate never came back, to keep the coupons the proceeds of which had not been remitted, as partial compensation for his services. The defendant in one portion of his testimony stated that the intestate said, “ Keep them in part pay for services,” and in another, that he said, “ You. keep these, and if the worst should happen that I fear, you will have these to partly pay you.”</p> <p>The plaintiff requested the judge to instruct the jury, that, if Dama had a right to the proceeds of the coupons if he had lived, there was no valid gift or pledge of the coupons to the defendant in case of his death. The judge declined so to instruct the jury, and instructed them, in substance, that, if they believed the testimony of the defendant, — to wit, “that, inasmuch as he had rendered certain services to Mr. Dama prior to that time, and made certain advances, he was to take those coupons, and although he was to remit them as they became due, if Mr. Dama lived, still, if the worst happened and he did not come back, he was to keep these to pay himself for, or in part compensation for, what was due,”—the arrangement to which he testified gave him a valid title to the coupons, and their proceeds so far as not remitted to Dama at the time of his death.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in January, 1891, and after-wards, in June following, was submitted on the briefs to Allen, Holmes, Morton, and Lathrop, JJ.</p>

<p>Contract on a promissory note, dated June 6, 1889, and payable three months after date at any bank in Boston, and indorsed by the defendant.</p> <p>At the trial in the Superior Court, before Hammond, J., the plaintiff, for the purpose of showing that the note was duly protested for non-payment, offered in evidence a paper, purporting upon its face to be a notarial certificate of one Briggs, with a seal thereon, setting forth that on September 9 he made demand for payment of the note at a certain bank in Boston, and protested the note for non-payment. The defendant contended that there must be some evidence of the signature of the notary, and also some evidence that Briggs was a notary at the time the note was protested. The judge ruled that the certificate was admissible without such evidence, and admitted the certificate, against the defendant’s objection; and the defendant excepted.</p> <p>The plaintiff further testified, that he received two notices on September 10, about nine A. M., from the cashier of the bank, of the dishonor of the note, and that on the same day, and about ten A. M., he mailed one of these notices to the defendant, postage prepaid, and addressed to him at Waltham, by depositing the notice in a post-office box in a public street, and about five minutes’ walk from the post-office building in Waltham. There was no evidence introduced as to the time or manner of collecting letters deposited in this post-office box, or what length of time would elapse after a notice so deposited would reach the post office itself.</p> <p>The defendant asked the judge to rule that the deposit of the notice in a post-office box on the street was not sufficient, and that it should have been deposited in the post office itself; but the judge refused so to rule, and the defendant alleged exceptions.</p> <p>The jury returned a verdict for the plaintiff ; and the defendant alleged exceptions.</p>

<p>Petition for partition of a parcel of land in Marlborough, originally filed and amended in the Probate Court, and thence removed to the Superior Court under the Pub. Sts. c. 178, § 46, alleging that the estate could not be advantageously divided, and praying that commissioners be appointed to make partition thereof by a sale and conveyance, and to pay over the proceeds of the sale in such manner as to make the partition just and equal. At the trial in the Superior Court, without a jury, Hammond, J. found that “the petitioner is entitled to have partition as prayed for in her amended petition as to all the land described in said amended petition”; and the respondent alleged exceptions to certain rulings and refusals to rule by the judge. These exceptions were examined and allowed by the presiding judge, and were duly entered upon the docket of the full court fpr argument.</p> <p>The case was submitted on briefs, in January, 1891, upon the question whether the exceptions had not been entered prematurely.</p>

<p>Intoxicating Liquors — Common Nuisance — Original Package — Constitutional Law.</p> <p>Since the XT. S. St. of August 8,1890, the agent in this Commonwealth of a wholesale dealer in intoxicating liquors in another State, who sells or offers for sale such liquors, whether in the original packages or otherwise, shipped to him by such dealer, although he sells no other liquors, may be convicted of keeping a common nuisance under the Pub. Sts. c. 101, §§ 6, 7.</p>

<p>Contract of Sale— Conditional Agreement — Demurrer.</p> <p>A contract in writing, dated April 26, 1887, for the sale by W. to H. of letters patent for a manufacturing process not yet made a commercial success, stipulated as one of the conditions of sale that H. or his assigns should pay to W., his heirs or assigns, $2,500 in one year from May 1, 1887, and on the same day in years following other sums with that aggregating $250,000, “ it being understood and provided ” that, if any such payment when due and demanded was not paid or tendered within sixty days after such demand, the contract was to be void. The contract also provided that H. might at any time within twenty years of May 1, 1887, pay $100,000 to W., and acquire a complete title to the patents, and, further, that H. might assign it to any person or corporation subject to the conditions of payment, and if such assignee should make payment “ at or before the conclusion of any calendar year,” or should “ make the special single payment on or before May 1, 1889, as above stipulated,” the sale was to inure to his or its benefit, otherwise the contract was to determine. The first payment mentioned in the contract was duly demanded of H. on May 1, 1888, and was not paid by him within the time limited, and an action was brought against him by W. to recover the same. Held, that the contract did not constitute an absolute sale to the defendant, but merely secured to him certain rights in the patent, which were to be kept alive by annual payments or lost by failure to make the same; and that the action could not be maintained.</p>

<p>Complaint — Municipal Court of Boston — Jurisdiction — Registering Bets — Pool Selling — Evidence.</p> <p>It is not necessary to a conviction on a complaint under the St. of 1885, c. 342, § 1, that the defendant’s business should embrace both registering bets and buying or selling pools; if it embraces one of them, it is within the statute; if it embraces more than one, it still may be one business and' one offence.</p> <p>A complaint addressed to the Municipal Court of the city of Boston charging the defendant, after the allegations of city, county, and State, with committing an oBence “ within the judicial district of said court,” is sufficient as to place to give the court jurisdiction.</p> <p>A complaint alleging that the defendant, in a certain room “ occupied with apparatus, books, and devices . . . for the purpose of registering bets and selling pools upon the results of trials and contests of skill, speed, and endurance of men and beasts, was present then and there in said room engaged in the business and employment of registering bets upon the result of a certain trial of speed of beasts, to wit, upon the result of the racing of certain horses whose speed was to be tried by racing,” charges an offence within the St. of 1885, c. 342, § 1.</p> <p>On a complaint under the St. of 1885, c. 342, § 1, there was evidence that in the room in question, which contained an office, stood a blackboard with names and figures thereon, understood by a witness who had been there many times to be the names of horses and jockeys; that another witness copied from the blackboard certain names understood by him to be those of horses, and asked the defendant, who had been seen there repeatedly before marking on the blackboard, what he would give him on them, and the defendant answered twenty to one; that the witness then gave the defendant some money and the list of names, and the defendant went into the office, stopped a minute, returned and gave the witness a ticket with the words “ Combination Play or Pay ” printed at the top, and with “ 1st Race,” “ 2d Race,” etc., printed in a column underneath, and the names selected by the witness written against certain of the races thus: “ 1st Race, Picknicker “7th Race, Tattler etc., and at the bottom of the ticket was written “ 10/50.” Held, that the evidence was sufficient to warrant a conviction.</p> <p>A witness who testifies to a transaction as having taken place on a certain day may properly be allowed to refresh his recollection from memoranda made by him respecting the transaction on the night of that day.</p> <p>At the trial of a complaint on the St. of 1885, c. 342, § 1, for being present in a room engaged in the business of registering bets, the presiding judge, in giving an instruction requested by the defendant, added that the defendant was as liable for what he directed others to do illegally in his presence as if he did it himself, and refused to instruct them, as the defendant requested, that if the defendant made a bet and another registered it, or. if the jury found that the transaction in evidence was selling pools, the defendant was not liable. Held, that the defendant had no ground of exception.</p>

<p>Complaint, addressed to the Municipal Court of the city of Boston, alleging that “ Henry Chase of the city of Boston in the county of Suffolk, in behalf of the Commonwealth of Massachusetts, on oath complains that Thomas Watson at Boston aforesaid, and within the judicial district of said court, with force and arms, in a certain room situated within said city and district, which said room was then and there occupied with apparatus, books, and devices, a further description whereof is to said Chase unknown, for the purpose of registering bets and of selling pools upon the results of trials and contests of skill, speed, and endurance of men, beasts, birds, and machines, and upon the results of games and competitions, was present then and there in said room, engaged in the business and employment of selling pools upon the result of a certain game, the same being a trial and contest of the skill of men, to wit, a game of base-ball, to be played by men.”</p> <p>In the Superior Court, on appeal, before the jury were impanelled, the defendant renewed a motion filed by him in the Municipal Court, to quash the complaint, on the following grounds: “1. No offence at common law or under the statute is charged. 2. That the part of the city of Boston in which the room charged is situated is not described or set out or located by description, the jurisdiction being merely asserted. 3. The selling of pools and registering of bets is not charged as the business and employment. 4. Nor the name of the keeper or occupant of the room charged set forth or charged, nor charged as being unknown to the complainant. 5. Nor when, where, or by whom the game of base-ball charged was to be or was played.” Barker, J. overruled the motion.</p> <p>At the trial there was evidence that the room in question contained a small box office, a number of settees, and two blackboards on which were written names, as Washington, Pittsburgh, New York, and Philadelphia; that across the top of one of the blackboards was written the word “ Brotherhood ” ; that at the left edge of this blackboard was a column of figures running from 1 down to 16; that opposite each number were written four abbreviations of names, those in the first line as read from left to right being “ Buff., Pitts., Cleve., Chic.,” and in the second line the first three of these repeated with the addition of “ Phila.,” and opposite the figure 10, “ Brook., Pitts., Cleve., Phila.” One Randall, a witness for the government, testified that on July 1,1890, he visited the room, having been there several times during the month before; that the defendant was standing on the floor, and he went up to him and asked him for No. 10, and gave him some money; that the de-' fendant said nothing, but went into the office and immediately returned and gave him a ticket, at the top of which was printed “ 10,456,” and underneath, the figure 10 was written with a lead pencil; that afterwards he saw the defendant and asked him “ if combination 10 had won ”; and that he knew that the transaction in which he participated was a pool, but did not know of any other person making a wager at the time. To the question, “ What did combination 10 mean? ” this witness was permitted, against the defendant’s objection, to answer, “ It is four names placed on the blackboard right along in a row; that is a combination, and there are sixteen of these rows, four names in each row. They are different. Ten is one special row.” To the question, “ What do these names on the blackboard signify ? ” he was permitted, under like objection, to answer, “ As far as I know they signify base-ball clubs.” And the defendant excepted.</p> <p>One Lent testified that he accompanied Randall on his visit to the room in question , that he knew that the transaction participated in by Randall and the defendant was a pool, but that he did not see any fund of money, but knew that there was one, and understood that the defendant held it and made payments from it; that he did not know of anybody else participating in the transaction; and that on the same night after he got home he made a memorandum on a slip of paper of the position of the numbers and names on the blackboard. This witness was then allowed, against the defendant’s objection, to use this memorandum to refresh his recollection; and the defendant excepted.</p> <p>The defendant requested the judge to instruct the jury as follows : “ 1. There is no evidence in this case upon which the jury can find the defendant guilty of the offence charged. ... 3. Also, that equal or unequal amounts risked against other equal or unequal amounts by or between one or more, one or more to be determined by the result of an uncertain event, or series of uncertain events, is not a pool. It is a wager. 4. Also, that if the jury find from the evidence that the paper in evidence was part of a transaction by which Randall was to receive any definite amount of money in case the Brooklyn, Pittsburgh, Cleveland, and Philadelphia base-ball clubs should all win in certain contests between themselves and some other club, which were to be played at any certain time, or about July 1, 1890, and should not win or receive any money if either one of said clubs should fail of winning in such contest, and that the sole business and employment in which the defendant was engaged was in making like wagers with customers, of which the transaction with Randall was one of a series, that is a variance, and the jury should find a verdict of not guilty.”</p> <p>The judge refused so to instruct, but instructed the jury, among other things, as follows: “ It is not necessary to prove that he sold any particular pool. It is not necessary to show just exactly what was done in that place every day. The charge is not for keeping the place, nor for selling pools, but for being in such a place engaged in the business of selling pools. Where an uncertain event or series of uncertain events are so combined, and all stakes are so combined as to go to the winner, that is a pool; and I also give you the instruction that a pool, generally speaking, is a combination of stakes, and within the meaning of the law a pool is money that has been paid in by those who have bought a right in it, and which is to be paid over to the winner if he gets the right number in a game of chance. “ Pool ” is a word of common acceptance. You see it in the newspapers, and hear it in common conversation, and you know its definition, very likely, and what its acceptation when applied to the business of selling pools in the community. I do not suppose all betting is selling pools, but certainly those things are pools which I have defined. If you believe there was this place on July 1, fitted up as charged in the complaint, and the defendant was there engaged in the business of selling pools, you should find him guilty. If you are not satisfied of this, you should find him not guilty.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Defect in Highway — Actionable Negligence.</p> <p>A 'town is not liable for an accident caused by a defect in a highway culvert so constructed that such a defect was likely to occur in the remote future, where the defect had not existed at the time of the accident for such a length of time as to make the town chargeable with notice thereof, and there had been no such defect in the way at that place for more than a year previously, although there was much heavy travel over the road.</p>

<p>Tax — Executor and Administrator—Abatement.</p> <p>An executor or administrator must not only make the return called for by § 38 of the Pub. Sts. c. 11, of the property in his hands liable to taxation, but must in addition, in case of a partial or total distribution, give notice thereof, under the Pub. Sts. c. 11, § 20, cl. 7, to the assessors, stating the names and residences of and the amount paid to the several parties interested who are residents of this Commonwealth, in order to discharge his duty and avoid taxation, if it is within three years of his appointment, for the amount last assessed to him.</p> <p>If an executor, who has nearly distributed the estate in his hands, is assessed on the first of May for the amount assessed to him in the preceding year, and is allowed by the assessors until June 15 to bring in a list of the property in his hands, and does not give to them the notice and information required by the Pub. Sts. c. 11, § 20, cl. 7, in case of a distribution, until the November following, he cannot be said to have complied with the statute, and is liable for the amount so assessed to him.</p>

<p>Defect in Highway — Implied Notice.</p> <p>The fact that a way is so constructed that it is not likely to keep in good condition for a great length of time will not impose liability on the town which is bound to keep it in repair, unless the danger is so imminent that it can fairly be said to show a want of reasonable care and diligence to omit guarding against it at once.</p> <p>In an action to recover for personal injuries occasioned by an alleged defect in a highway which the defendant town was bound to keep in repair, it appeared in evidence that the defect consisted in a softening of the earth in the road, under the influence of a heavy storm, due to the digging of a trench for a water-pipe about six months before the accident, and that the road had been used meanwhile without the earth softening or any danger or defect existing until within an hour of the accident; and there was no claim that the town had notice, or might by the exercise of reasonable care and diligence have had notice, of the actual softening of the earth. Held, that the plaintiff was not entitled to go to the jury.</p>

<p> Written Receipt—Extrinsic Evidence. </p> <p>A receipt in the following form, “ Received of D. W., Treas., five hundred dolls., being amount received from lectures given by Rev. H. B. C. in Hollis Street Church for memorial window to be put into said church as per agreement,” is not conclusive evidence of full payment and satisfaction, but is ambiguous, and paroi evidence is admissible to show what the agreement referred to was.</p>

Tort, for injuries received by the plaintiff’s horses while upon the defendant’s railroad. Trial in the Superior Court, before Pitman, J., who, after a verdict for the plaintiff, reported the case for the determination of this court. The facts appear in the opinion.

<p>Superior Court—Vacation of Judgment— Writ of Error.</p> <p>The Superior Court has no power on a mere motion, after the term at which judgment is rendered upon a default without fraud, error, or mistake, and after the lapse of several more terms, to vacate the judgment, bring forward the action, amend the writ by increasing the ad damnum, and enter judgment against the defendant for a larger sum, whether notice is given to him of the motion or not.</p>

Contract for labor performed and materials furnished by the plaintiff in painting the defendant’s house. At the trial in the Superior Court, without a jury, before Pitman, J., it was agreed that the report of an auditor, to whom the case was referred, should be treated as an agreed statement of facts.

<p>Tort, for negligently moving a building. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared, in evidence that the plaintiff made a contract in writing with one Powers to move and fit up certain buildings in Somerville, by the terms of which Powers was to do the work in a workmanlike manner; that Powers contracted with the defendants, George A. Richards and Sylvester Richards, to move the buildings for an agreed sum, namely, one hundred dollars; and that before the defendants had completed the moving of the buildings Powers gave up his contract, but the defendants continued to carry out their contract to move the buildings.</p> <p>The plaintiff offered to show that the moving of the buildings by the defendants was done in a careless and negligent manner, and that the buildings were damaged thereby. The judge excluded this evidence, and ruled that, if it was proved that the moving was done in an unworkmanlike, unskilful, and negligent manner, it would not entitle the plaintiff to recover against the defendants in this action, as there was no privity of contract between the plaintiff and the defendants, and ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Contract, against Frank S. Hammond and Edgar G. Scripture, for money lent by the plaintiff to the defendants as members of the firm of Hammond and Scripture. Scripture alone defended.</p> <p>At the trial ih the Superior Court, before Thompson, J., the evidence tended to show that on November 17,1888, the plaintiff, through her husband as her agent, lent to the firm of Stewart, Hammond, and Mead, of which firm the defendant Hammond was a member, one thousand dollars of her own money, and received therefor a promissory note for that amount payable on demand to her order, signed by Hammond and indorsed by him before delivery to her in the name of the firm; that the defendant Scripture was not a member of this firm; that the firm of Stewart, Hammond, and Mead shortly after was dissolved, and the firm of Hammond and Scripture afterwards formed, on April 1, 1889 ; that about May 17, 1889, Hammond called upon the plaintiff’s husband and told him that he was a partner with the defendant Scripture, and then said, “ I want to settle up with you,” at the same time telling him that he would like to retain the money for the benefit of the firm of Hammond and Scripture; that the plaintiff’s husband then proceeded to inquire as to the financial standing of Scripture, and, finding it good, in a subsequent conversation with Hammond told him that the firm of Hammond and Scripture could have the money; that Hammond then drew a promissory note payable on demand to the order of the plaintiff for $1,240, which he signed with his own name and indorsed in the name of the firm of Hammond and Scripture, and delivered it to the plaintiff’s husband for her. The evidence further tended to show that the defendant Scripture knew nothing of the loan, or of the giving of the note last referred to, until demand was made upon him in September, 1889.</p> <p>At the conclusion of the evidence, the judge ruled that the plaintiff was not entitled to recover, and ordered a verdict for the defendant; and the plaintiff excepted. By agreement of parties, if the plaintiff was entitled to recover, the verdict was to be set aside and judgment entered for the plaintiff in the sum of one thousand dollars; otherwise, judgment was to be entered upon the verdict.</p> <p>The jury returned a verdict for the defendant Scripture; and the plaintiff alleged exceptions.</p>

<p>Exceptions — Negligence — Employers’ Liability Act — Evidence of subsequent Acts.</p> <p>An exception to the exclusion of a question cannot be maintained, when there is nothing in the bill of exceptions to show what the testimony of the witness would have been, if admitted, or what the party putting the question offered to prove thereby.</p> <p>If an accident happens through the alleged negligence of an employer, his subsequent acts in taking additional precautions to prevent other accidents are not admissible in evidence, in an action against him for the injuries occasioned, either at common law or under the employers’ liability act (St. 1887, c. 270, § 2), for the purpose of showing that such precautions were needed at the time of the accident.</p> <p>If evidence is properly excluded when offered by a plaintiff, but becomes competent in consequence of evidence offered by the defendant, the former, to avail himself of it, should offer it again in rebuttal.</p>

<p>Corporation — Shares of Stock—Fraudulent Issue by President — Previous Misconduct.</p> <p>The president of a corporation, who was not the proper officer to issue certificates of stock, his duty with regard thereto being merely to affix his signature, was allowed access to its blank certificate-book and to the corporate seal, and availed himself thereof to issue forged certificates away from its office. He had, witli the knowledge of the corporation, been guilty of previous misconduct in transferring shares of stock standing in his name to a third person, instead of to associate stockholders, as he had agreed to do. Held, that the corporation was not liable for the president’s act in issuing such forged certificates.</p>

<p>Replevin of certain clothing. Trial in the Superior Court, before Dunbar, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiffs, who were wholesale clothing dealers, before October 28, 1889, sold various lots of clothing to one Levy, who was a retail clothing dealer, who never paid for them. On that day Levy made an assignment for the benefit of creditors to the defendant, and the latter took possession of the goods. The plaintiffs on the same day, upon learning of this assignment, brought this action, and took from the defendant the clothing in question, which formed a part only of the lots sold by them to Levy. On October 31, Levy went into insolvency, and was duly adjudged an insolvent debtor, and his assignee in insolvency elected to rescind the assignment to the defendant, and intervened to defend this action for the benefit of the estate. The plaintiffs were allowed to prove a claim against the estate for the balance of the clothing sold by them to Levy. The plaintiffs introduced evidence tending to show that the sale of goods to Levy was induced by his fraud.</p> <p>The defendant asked the judge to rule, that upon all the evidence, and especially by reason of their having proved their claim against the estate in insolvency, the plaintiffs could not maintain the action ; but the judge refused so to rule, and submitted the case to the jury on the issue as to whether the goods were obtained by fraud.</p> <p>The jury returned a verdict for the plaintiffs, for nominal damages. If the defendant was entitled to the ruling requested by him, judgment was to be entered in his favor, and for a return of the goods; otherwise, judgment was to be entered for the plaintiffs upon the verdict.</p>

<p>Tort, against Elizabeth C. Carroll and Shadrach F. Swift, for breaking and entering the plaintiff’s close. Trial in the Superior Court, before Mason, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The premises in question were situated in the town of Plymouth, and formed a part of the plantation belonging to the tribe of Herring Pond Indians, which was not allotted among them under the St. of 1850, c. 168, and under § 6 of that chapter remained the common lands of the tribe. Anthony T. Johnson, a member of the tribe, to whom land was allotted under that statute, and who had an interest in such common land, on January 20, 1870, executed a mortgage to one Briggs of “all the real estate I own in the town of Sandwich and county of Barnstable, and also all the real estate I own in Plymouth, county of Plymouth and State aforesaid, consisting of homestead and dwelling-house I reside in, and outbuildings and woodland and cleared land, of whatsoever name or nature, and however bounded or situated.”</p> <p>Under the St. of 1869, c. 463, upon due proceedings begun in the Probate Court in September, 1870, commissioners were appointed by that court to make partition of such common land, and, Johnson having meanwhile died, allotted the land, including the premises in question, which would have been his if he had lived, to “heirs of Anthony T. Johnson”; and their report was confirmed by the Probate Court. The plaintiff claimed title by mesne conveyance through one of the heirs of Johnson. The widow of Briggs, as his devisee, became the owner of the mortgage, and, after duly entering to foreclose the same for breach of condition, assigned to the first named defendant all her right, title, and interest acquired by such entry; and the plaintiff received notice of the assignment on September 14, 1889. The first named defendant thereupon took possession of the premises in question, claiming the rights of a mortgagee in possession of land under a mortgage for condition broken, and, together with Swift as her agent, entered upon the premises and took a portion of a cranberry crop growing thereon ; and this was the tort complained of by the plaintiff.</p> <p>The judge upon these facts ordered judgment for the plaintiff in the sum of twenty dollars, which was agreed to be the damages sustained by the plaintiff. If, as matter of law, the ruling was erroneous, judgment was to be entered for the defendants ; otherwise, for the plaintiff.</p>

<p>Contract to recover the price of hops sold by the plaintiffs to the defendant. Trial in the Superior Court, before Staples, J., who ordered a verdict for the plaintiffs, and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Two Actions OF TORT, for personal injuries occasioned to the plaintiffs by a collision at a crossing at grade of a highway by the defendant’s railroad in East Boston. The cases were tried together in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to show that on Sunday afternoon, August 19,1888, at about two o’clock, the plaintiffs, who were husband and wife, were driving along Bennington Street in East Boston in a covered carriage, and were approaching from the west a crossing at grade of that highway, first by the double tracks of the Boston and Maine Railroad, and then by those of the defendant, which at that point ran parallel and alongside each other from north to south; that the afternoon was pleasant and the weather was clear; that just west of the Boston and Maine tracks ran Bremen Street across Bennington Street at an angle, and parallel with such railroad tracks; that from the westerly line of Bremen Street to the westerly rail of the easterly track of the defendant’s railroad is about one hundred feet in a direct line, but along the line of Bennington Street the distance was somewhat farther; that from that line at a point in the middle of Bennington Street there was an uninterrupted view for half a mile southerly along such easterly track; that as the plaintiffs approached the crossing a train of the defendant was approaching from the south along this easterly track; that there were gates at the crossing, which were up at the time and were not lowered, and there was neither gateman nor flagman at the crossing; that the flagman placed at the crossing, who was employed by the Boston and Maine Railroad and paid by both companies, was never on duty on Sunday except between eleven and twelve o’clock in the forenoon, and the gates were never lowered on Sunday except during that hour; that the bell of the locomotive engine of this train was not rung or its whistle sounded as the train approached the crossing; that the plaintiffs in crossing Bremen Street both looked along the tracks in both directions, but could not see the train because of cars standing in the way on other tracks; and that Mr. Merrigan then drove along, and, the carriage coming into collision with the train, the plaintiffs severally were injured. The evidence that the plaintiffs could not see the train before proceeding to cross the defendant’s track was contradicted, and the defendant offered evidence that at the time the plaintiffs looked the train was in plain sight, and not more than five hundred feet from the crossing.</p> <p>There was evidence that the gates at the crossing were erected about eight or nine years before the accident; and the plaintiffs offered in evidence an order of the mayor and aldermen of Boston, passed in June, 1879, requesting the defendant to erect gates at this crossing, and service of this order upon the defendant’s treasurer was admitted by the defendant. The evidence thus offered was admitted, against the defendant’s objection, and the defendant excepted.</p> <p>The judge instructed the jury that this order was not material on the question whether gates were there required or not, but added: “ If you find that that order was communicated to the railroad and that they acted thereon, or that action was taken thereon by their consent and procurement, then, so far as action was taken by the railroad, you may properly consider it as an admission on the part of the road that such a thing is reasonably necessary, — that those gates were reasonably necessary for the public security.” To this instruction the defendant excepted.</p> <p>The defendant requested the judge to rule as follows: “ If the jury find from the evidence that the plaintiff, before entering upon the crossing, and at a time when he was within one hundred and fifty feet of the track upon which the defendant’s train was approaching, looked along the track in the direction of the train, and that at that time the train was visible to any one who looked, and that it was within five or six hundred feet of the crossing, and that the plaintiff then kept on and endeavored to cross the tracks, he cannot recover in this action, and the verdict must be for the defendant.”</p> <p>The judge refused so to rule, but, having instructed them that the act of the plaintiff in the first case in driving upon the crossing bound his wife, further instructed them: “I instruct you that this plaintiff, travelling upon that highway in broad daylight, in the conditions shown by the plaintiff, was bound to look and see whether a train was approaching. ... If he approaches a crossing where there are gates, which by their shape and appearance indicate to him that it is the custom to shut them when trains pass, or that they are there for the purpose of being shut when trains pass, he may take that fact into consideration on the question of how much he himself must look, but it does not excuse him from looking. He must look out for himself, and has no right to rely wholly upon the gates. On the question of how far he shall look, and to what extent he shall look, he may properly take the existence of the gates into consideration. ... If he looked, he must be held to have seen that which was plainly to be seen where he looked, and if he looked to the extent to which you think he ought to have looked, and that engine was in the line of his vision plainly to be seen, he must be held to have seen it, there being no suggestion of a defect of vision on his part; and if, seeing the engine approaching the highway, he chose to start across and take his chances, the damage must rest where it falls, and is in no degree attributable to the railroad corporation in such a manner as that he can recover of them for such damage.”</p> <p>The judge then gave the following ruling requested by the defendant: “ If, when the plaintiff approached the crossing and came within the limits of Bremen Street, the train on the defendant’s railroad was in plain sight and approaching the crossing, it was the plaintiff’s duty to look and not to attempt to cross, and if he did look and then attempted to drive across, and his horse or carriage was struck by the train, he cannot recover in this action.”</p> <p>The jury returned a verdict for the plaintiff in each case; and the defendant alleged exceptions.</p> <p>The cases were argued at the bar in January, 1891, and after-wards, in June, were submitted on the briefs to all the judges, except Field, C. J.</p>

Libel by a husband to obtain a divorce on the ground of adultery. Trial in the Superior Court, before Lathrop, J., who found that the libellant was guilty of connivance, and ordered a decree to be entered dismissing the libel, and reported the case for the determination of this court. If the evidence did not warrant the finding, or if, as matter of law, the order was wrong, a new trial was to be granted; otherwise, the decree was to stand.

Tort, for personal injuries occasioned to the plaintiff while attempting to get on an electric car of the defendant company while in motion. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, which, so far as material to the point decided, was as follows.

<p>Divorce — Alimony — Tenancy by the Curtesy — Trust — Cloud upon Title.</p> <p>A husband obtained in another State a legal and absolute divorce from his wife, who resided and was the owner of land in this State, for a cause other than adultery. Before he had instituted proceedings for alimony here, or sought to secure the same by attachment or otherwise, she conveyed such land to a third person. Held, that such former husband had no right or interest as tenant by the curtesy initiate in the land, nor any interest therein depending on any possible claim for alimony.</p> <p>The owner of four undivided fifths of a parcel of land, one fifth by inheritance and tile other three fifths by purchase by separate conveyances from his three brothers, conveyed “ all his right, title, and interest in and to ” such parcel, “ my interest in such estate being three undivided fifths of the same,” and referred to two only of the three conveyances. The grantee conveyed the land to the grantor’s wife, who conveyed them to a bona fide purchaser for value. Thereafter the original grantor claimed an undivided fifth in the parcel, and notified such purchaser that the conveyance was on a trust for thé benefit of his children; but this was not declared in writing. Held, that such grantor had conveyed all his interest in the land, and that the notice did not in any way affect or cloud such purchaser’s title.</p>

<p>Kansas Corporation — California Stockholders — Enforcement of Personal Liability.</p> <p>A resident of New York cannot maintain an action in the courts of this State against a resident of California, to establish the personal liability of the latter as a stockholder for the debt of a corporation having no place of business in this State, and organized under laws of Kansas providing for a special and limited liability on the part of a stockholder, when no judicial proceedings have heen taken in that State to ascertain and establish the liability of the defendant as such stockholder.</p>

Writ of entry, to recover a parcel of land in Cambridge. The case was submitted to the Superior Court, and, after judgment for the demandant, to this court on appeal, on agreed facts, which, so far as material to the point decided, appear in the opinion.

<p>Bill in equity, filed in the Superior Court on August 80, 1890, against James J. Grace and the American Protective League, to prevent the defendants from altering a building. The case was heard by Mason, J., and reported for the determination of this court, and was as follows.</p> <p>The plaintiffs composed the firm of Brande and Soule, dentists ; and the defendant Grace was the lessee of premises numbered 181 Tremont Street, in Boston, which included a six-story building set back from twelve to fourteen feet from the sidewalk of that street. The unoccupied land between the building and the street was included in his lease, and was used as a part of the sidewalk, but had never been dedicated to the public. On or about February 1, 1888, Grace executed a sublease, with a covenant therein for quiet enjoyment of a portion of the building, described as “ the rooms numbered 1, 2, 3, and 4, located on the second floor of building numbered 181, and located on Tremont Street in said Boston, with all the rights and privileges thereto belonging, . . . from the first day of March, A. D. 1888, during the following term of four years (4) thence next ensuing, expiring February 29, A. D. 1892.” These rooms included the front rooms on that story, and from them an uninterrupted outlook was to be had into the street. The plaintiffs, who were already in occupation of the rooms as tenants of Grace, continued thenceforward to occupy the rooms, and to do a profitable business in dentistry there, and allowed their signs attached to the outside face of the front wall to remain there. Subsequently Grace sublet the entire premises to the American Protective League for a term of years, which corporation proceeded to alter the building by taking down the original front wall thereof, and by extending its side walls to the street line and erecting a new front wall to the -entire height of the building, so as to enclose the rooms leased and occupied by the plaintiffs, and to interpose another room between them and the street. This bill was then brought by the plaintiffs to prevent such alterations from being made, and a temporary injunction was issued to prevent the defendants from taking down so much of the original front wall as enclosed the second story of the building. The plaintiffs then discontinued as to Grace, and filed a supplementary bill praying that the defendant corporation might be prevented from making its proposed alterations. At the hearing, the judge made a final decree that the injunction already issued should be continued to the end of the plaintiffs’ tenancy, but ruled that the plaintiffs had acquired no right to the light and air which would be obstructed by the other proposed alterations, and refused an injunction to prevent the same. The defendant corporation thereupon proceeded to erect, and had completed the new front wall, and had extended the side walls of the building so as to unite with the same, thus cutting off the light and air from the plaintiffs’ front rooms, and covering up their business signs upon the external surface of the original front wall.</p>

<p>Conflict of Laws'—Promissory Note — Indorsement — Lex Loci Contractus.</p> <p>If a promissory note is indorsed in another State, according to the laws of which the contract of indorsement is not an absolute one, but the liability of the indorser, as between himself and any party taking the note with notice, is dependent upon the understanding or agreement of the parties, the lex loci contractus will govern in an action brought here against the indorser, and evidence is admissible to prove an oral agreement between the parties to which such indorsement was made subject.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by reason of the want of a railing at the side of Pleasant Street, a highway in the defendant town. At the trial in the Superior Court, before Thompson, J., there was evidence that Pleasant Street led from the centre of the defendant town northerly, towards the town of Hudson; that between these points the Berlin Road, so called, diverged from the west side of Pleasant Street; that a triangular-shaped piece of land lying between these ways beyond the point of divergence was rough and stony, and from being level with the roads at that point gradually sloped from Pleasant Street to the Berlin Road as the distance increased between them, forming a bank; that by the side of the Berlin Road was a hollow; that no railing or barrier of any kind existed at the time of the accident upon this piece of land between the two ways ; that the plaintiff on the evening of December 9, 1887, which was dark and misty, was driving from the centre of the town along Pleasant Street towards his home on the Berlin Road; that he was on the lookout for the Berlin Road, and as he approached the point of its intersection with Pleasant Street saw a gray line which looked like the travelled part of that road; that he drove upon it, and it turned out to be the triangular piece of land above mentioned; and that his horse passed over the bank into the Berlin Road, and a forward wheel of his wagon went into the hollow beside it, and he was thrown out upon that road, and sustained the injuries complained of.</p> <p>The plaintiff requested the judge to rule as follows: “In an action against a town to recover damages for an injury alleged to have been occasioned by a defect in a highway, occasioned by the want of a railing or barrier, the town will be liable therefor if such barrier or railing was necessary for the proper security of travellers, and would have prevented the happening of the injury complained of.”</p> <p>The judge refused so to rule, and instructed the jury, among other things, as follows: “ It is provided, — and that is a special provision of the statute, — ‘ if any person suffers bodily injury or damage through a defect, or want of repair or of sufficient railing in or upon a highway, causeway, bridge,’ etc., that, under certain conditions, be may recover. So that it makes the railing of certain places in highways reasonable and necessary. But a railing is not for the purpose of preventing a party from straying out of the highway. Towns are not obliged to keep people within the road. . . . But the town is obliged to put barriers where they are necessary to make a highway reasonably safe for travellers. ... It is very important to keep this in mind: that a railing is not to keep travellers in the road but it is for the purpose of making travel on the road, and not in the fields, safe and convenient. Where there is a dangerous place, where there may be a steep bank, or a hole, or a river, that is in such close proximity to the travelled part of the road as to make travel on the road dangerous, then it is the duty of the town to rail such a place. And you can see that there may be cases where a man might trip and fall when exercising ordinary care, and be thrown over a wall, or down an embankment, and you would say that the road was not safe because of the liability of a man who was travelling upon that road to receive such an injury, to fall, or to have such accident happen to him as incident to the travel upon the road. It is necessary to provide against such accidents as that, and to have barriers put up so that a person travelling upon the road shall not be put to such hazard as that, or to those risks and hazards which are incident to travelling upon such a road. ... It may be a question of fact, or it may be a question of law, whether a place is in such immediate proximity to the travelled part of the way as to make the travel upon the way unsafe. There are cases where it is ruled, as matter of law, that twenty-five feet is so far out of the travelled part of the road as not to require any railing upon the street, or any barrier, to make the way safe and convenient; that is, if a party strayed out twenty-five feet, he was doing it at his own risk. If he gets so far away from the travelled part of the road as that, he takes his chances; that is, that towns are not obliged to protect travellers against liability of that kind.</p> <p>. . . The defect or the failure on the part of the town for which it is undertaken to charge the town, is a failure to put a barrier on Pleasant Street so as to prevent the traveller from getting into the place where this accident is said to have occurred. . . . If you ascertain where the accident was, then you will be able to determine with considerable minuteness and accuracy how far the party was, at the time he received the accident, from Pleasant Street. And that may be an important fact for you to ascertain and determine. If it was out of the way twenty-five feet, I rule, as matter of law, that there is not .any liability. There is nothing here to show that the town was obliged to rail the road to Berlin at all. It is not with regard to that that complaint is made. I do not know how it would stand any different from what it does if this was not a road where the Berlin Road is. Supposing there was not a road there. Supposing this was a bank in a field which adjoined the road. I do not see how the liability would be any different. The fact that that is a town road, I do not see that that changes it. The town was not bound to rail Berlin Road so that people coming upon Berlin Road through the fields should not receive some damage thereby. But the town is called upon to protect, reasonably, travellers upon the highway by suitable railings where there is a place in such immediate proximity to the travelled part of the way or road as to make the travel upon the road dangerous.”</p> <p>At the close of the charge, the counsel for the plaintiff called the attention of the judge to the last part of his charge, and the judge then said, in substance: “ Whether the position of Berlin Road affects the question of the reasonableness of a railing is a question of fact for you to determine. All questions of fact are for the determination of the jury. The court has no right to express any opinion upon questions of fact. As to whether it was necessary for Pleasant Street to be railed at the place where it is claimed it should have been railed, is a question of fact for the jury to determine; and you are to take all the facts into consideration, among which is the position and character of Berlin Road, and the fact of its being a street.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Bill in equity, for instructions as to the disposition of the income of a trust fund given by the will of Enoch T. Cobb. Knowlton, J. reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Bill in equity, filed in the Superior Court, to enforce the restrictions in a deed. The case was heard by Dewey, J., who reported it for the determination of this court, in substance as follows.</p> <p>The plaintiff was the owner of four lots of land, and the defendant the owner of a single lot, on Westminster Street in Boston, extending back eighty-five feet therefrom, being a part of nine lots situated on that street between Williams Street and Sterling Street. They both derived title from the Tremont Improvement Company, the former owner of the entire nine lots, which conveyed them all by deeds containing the following restrictions : “ The premises are sold subject to the restrictions, that the front line of all buildings thereon shall be placed equidistant from, and at the distance of not less than eight feet back from the street; that no building thereon shall be of less width in front than twenty feet; that the main part of such buildings shall be not less than two stories in height, exclusive of the basement and attic ; that they shall have no L more than two stories in height; that such buildings shall be of brick, stone, or iron, and shall be used for dwelling-houses solely, or such public buildings as shall be approved by the mayor and aldermen.” Each deed also contained a reservation of a right of private passageway over the rear of the lot thereby conveyed. The defendant’s lot was upon the corner of Westminster Street and Williams Street. A predecessor in title of the plaintiff, who owned all the other eight lots, built a brick block of eight houses upon them, each two stories high, with a marble front placed eight feet back from Westminster Street. Each house was about forty feet deep and was built without an L, and the land in the rear of each was used as a yard. This block was built upon insecure foundations and the houses settled and moved therefrom irregularly, so as to cause a change in the front line of the houses. One of the plaintiff’s houses adjoining the defendant’s lot at the front corner nearest that lot was nine and six tenths feet back from the street, and at the farthest front corner nine and twenty-eight one-hundredths feet back from it. Another house of the plaintiff’s on the second lot from the defendant’s lot was also more than eight feet back from Westminster Street. To the ordinary observer, however, the whole block of houses appeared to be on a line with and equidistant from the street. Prior to the filing of the plaintiff’s bill, the defendant had begun to lay the foundation of a building upon his lot, which had previously been unoccupied. He proposed to build a substantial structure of brick, four stories high, including the story in the French roof, fronting upon and having its entrance upon Williams Street, with a bay window on Westminster Street extending from the ground to the top of the building, commencing near the corner at Williams Street. The proposed building was to be constructed without an L, but was to be one building of uniform height, covering substantially the whole of his lot, except eight feet on Westminster Street, and the space of ten feet on the rear end of the lot reserved for a passageway. The line of the building, except the bay window, was to be not less than nine and a half feet back from Westminster Street, and substantially the same distance from that street as the front line of the plaintiff’s dwelling-house on the adjoining lot. The greatest width of the bay window was to be eleven and a half feet, and its greatest depth one and a half feet, so that no part of the wall of the building, including the bay window, was to be nearer than eight feet to Westminster Street. The building was to be divided into suites or apartments, and was to be occupied as a dwelling-house.</p> <p>The judge found that the defendant’s building, if erected as proposed, would injure the plaintiff’s adjacent houses, especially in excluding light and air, by reason of being built so high and extending at the same height over nearly the whole lot.</p>

Peck, successor of the trustee named in the will of John Boles, for the construction of a residuary clause. The case was heard by Knowlton, J., and reserved for the consideration of the full court, and was as follows. The will was dated September 8, 1886, and, after gifts to the testator’s wife, and to his sons, Prescott and Jerome, and to his daughters, Maria E., and Eliza A., wife of Abel G. Peck, contained the following: “ Eighth.

<p>Tort, for personal injuries occasioned to the plaintiff by- falling down the stairs of a building in Boston owned by the defendants. Trial in the Superior Court, before Pitman, J., who submitted the case to the jury upon the evidence, on the questions of the defendants’ negligence and of due care on the part of the plaintiff, and, after a verdict for the plaintiff, the defendants alleged exceptions. The nature of the evidence appears in the opinion.</p> <p>The case was argued at the bar in November, 1890, and after-wards, in June, 1891, was submitted on the briefs to all the judges.</p>

Tort, for alleged libels, contained in articles published in January and February, 1889, in successive issues of the Boston Daily Advertiser. .The declaration was in four counts.

<p>Personal Injuries — Employers’ Liability Act — Negligence.</p> <p>In an action under the St. of 1887, c. 270, § 1, cl. 1, for personal injuries to an employee engaged in storing ice occasioned by the alleged neglect of the employer to provide suitable hoisting appliances, there was evidence that the cakes of ice were hoisted up a steep incline from the top of which a run led into the ice-house; that a rope, passing around a drum on the engine and through a gin-wheel at the top of the incline, ended in a loop to which were attached the ice tongs; that in hoisting, the rope wound around the drum until the ice reached the top of the incline, when it was stopped by stopping the engine ; that the gin-wheel was so situated that when the(lee reached the top of the incline it swung over into the run; that the plaintiff was employed to guide the ice from the top of the incline to the run, and to unhook the tongs from the ice and pull them back ; that at the time of the accident, when a cake of ice reached the top of the incline, the plaintiff took hold of the loop to guide the ice on to the run ; that, the rope not being stopped, his hand was drawn therewith into the gin-wheel, which was a few inches above his head and within his reach; that a wire { run through the rope, with its ends twisted together to serve as a mark, was the only means by which the engineer was notified to stop the engine; that this wire had not moved from its place ; and that the engineer, instead of stopping the engine when the ice reached the top, “ went a few inches farther ” for this cake of ice because it was larger than usual. Held, that the plaintiff was not entitled to go to the jury.</p>

<p>Tort — Admissions by Agent — Evidence.</p> <p>In an action against a railroad company for setting back the waters of a stream upon the plaintiff’s premises, evidence is admissible that the defendant’s officers, in discussing at different interviews with the plaintiff his claim for damages, did not at any time deny the defendant’s liability.</p> <p>At the trial of an action against a railroad company for setting back the waters of a stream upon the defendant’s premises, an admission of the defendant’s liability by an attorney, to whom the plaintiff was referred by the defendant’s president, is not competent in the absence of proof that the attorney was referred to in such a way as to constitute him an agent of the defendant, with authority to make admissions or promises to the plaintiff; and such proof, if offered at the close of the defendant’s case, may, in the discretion of the presiding judge, be rejected as toó late.</p>

<p>Watercourse — Surface Water — Pollution.</p> <p>A small and occasional increase of the flow of surface water into a stream, and the pollution of its waters by the usual impurities from streets, both occasioned by the due construction by a city of a system of surface drainage in some of its streets and ways, does not, apart from statute, afford a cause of action against the city to an owner lower down the stream; but his remedy, if any, is under the statute.</p>

<p>Contract, for breach of an agreement to lease certain rooms on the sixth floor of the Boylston Building in Boston. Writ dated April 20, 1889. Trial in the Superior Court, before Pit-man, J., who ordered a verdict for the defendants, and reported the case for the determination of this court. If the plaintiffs could recover on the evidence in any form of action, the verdict was to be set aside and the case stand for trial; otherwise, judgment was to be entered upon the verdict. The facts appear in the opinion.</p>

<p>Petition by a wife to the Probate Court for separate maintenance and the custody of children.</p> <p>In the Superior Court, on appeal, before Barker, J., it appeared in evidence that the parties were husband and wife, and before October 14,1889, lived together on a farm near Edgar-town, in a dwelling-house situated about one hundred feet from that of the respondent’s father, and in the same yard. There was also evidence, which was contradicted, that on several occasions from August 18 to November 29,1889, the respondent addressed profane language to the petitioner, and, when provoked by her, was guilty of various acts of personal violence towards her. The evidence also tended to show that after October 14,1889, the petitioner each night went to the house of the respondent’s father and there slept, and did not again sleep in the same house with the respondent, and thenceforward denied him access; that each morning before breakfast she came to the respondent’s house and prepared the breakfast for the household, and throughout the day performed all her usual duties about the house and in the care of the children, until in the evening again she went to her father in law’s house to sleep; that she pursued this routine daily until the evening of December 20,1889, when, after getting supper and putting the children to bed, she went to the other house, where she slept; that on the morning of December 21 following, without returning to the respondent’s house, or notifying him of her change of plans or intention, she went to Edgartown and filed this petition in the Probate Court.</p> <p>The judge found that during the period from October 14 to December 21, so far as her husband was concerned, she had the intention of making an absolute separation between them, and simply waited for what seemed to her a favorable and proper opportunity to make that separation. The judge refused to rule, as requested by the respondent, among other things, as follows:</p> <p>“1. That although the wife occupied a separate bed in the house of her father in law, near by in the same yard, the parties were not during that period, to wit, from October 14, 1889, actually living separate and apart from each other. That during that period they were living together, within the meaning of the law.</p> <p>“2. That to constitute the condition of actually living separate and apart from each other, within the meaning of the statute, there must have been some continuity. It must have existed a period of at least twenty-four hours, and the respondent submits that the undisputed facts in evidence show that they were living together up to the morning of the day she signed her petition. . . .</p> <p>“4. That, upon the facts shown, the parties were not actually living separate and apart from each other at the time she signed the petition.</p> <p>“ 5. That from and after November 29, the evidence does not disclose any plausible cause for her to leave her husband; that her acts subsequent to that time, and up to December 21, show that she had condoned any act of his of which she might complain, and for that reason she cannot maintain her petition for the causes relied upon. . . .</p> <p>“ 7. That, upon the whole evidence, the petitioner has not shown sufficient cause for any decree in her favor under the statute, and that, as matter of law, taking the whole evidence into account, the respondent is entitled to a decree that the petition be dismissed.”</p> <p>The judge ruled that it was competent for him to find upon the evidence that she was, at the time of bringing her petition, actually living separate and apart from her husband; and that he was not required, as matter of law, to find that the petitioner had condoned her husband’s misconduct.</p> <p>The judge made a decree in favor of the petitioner; and the respondent alleged exceptions.</p> <p>The case was argued at the bar in October, 1890, and after-wards, in June, 1891, was submitted on the briefs to all the judges.</p>

<p>Estate of Deceased Person — Limitation of Action— Guardian — License to sell Real Estate — Removal of Administrator.</p> <p>A claim for a balance due to a ward from a guardian deceased intestate, upon an account filed by him in his lifetime, which is not allowed by the Probate Court until more than six years after the taking out of administration on his estate, is within § 13 of the Pub. Sts. c. 136, which provides for the retention of assets to meet causes of action not accruing within two years thereafter; and may be presented to that court at any time before the estate is fully administered.</p> <p>A decree of the Probate Court showing a balance due from a guardian to his ward upon the expiration of the guardianship, and the refusal of the guardian or his representative to pay it over in accordance with such decree, create a debt in favor of the ward, for which he may sue in his own name.</p> <p>Pending a petition to the Superior Court, under the Pub. Sts. c. 136, § 13, upon which no order has been made, for the retention of assets ,to meet a claim against the estate of a person deceased intestate not accruing within two years . from the taking out of administration thereon, a petition will not lie for a license to sell the real estate to meet the same, and a refusal by the administrator to apply for such a license affords no ground for his removal.</p>

<p>Writ op entry, to recover a parcel of land in Norwood. Trial in the Superior Court, before Pitman, J., who ordered a verdict for the tenants, and reported the case for the determination of this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1890, and afterwards, in June, 1891, was submitted on the briefs to all the judges except Lathrop and Barker, JJ.</p>

<p>Carrier by Sea — Surgeon — Assault — Negligent Vaccination.</p> <p>If the surgeon of a foreign steamship, bringing immigrants to a port of this country where the quarantine regulations require vaccination as a prerequisite to landing, vaccinates one of them whose behavior indicates consent on her part, whatever her unexpressed feelings may be, he is justified in his act, and the ship-owner is not liable therefor as for an assault.</p> <p>A ship-owner who provides a competent surgeon, whom the passengers may employ if they choose, is not liable for his negligence in the medical treatment of a passenger, either at common law or by the U. S. St. of August 2, 1882, § 5, which requires every vessel transporting immigrant passengers to carry a surgeon or medical practitioner, “ who shall be rated as such in the ship’s articles, and who shall be provided with surgical instruments, medical comforts, and medicines,” and makes the master of the vessel liable to a penalty for its violation.</p> <p>In an action against a steamship company for assault by a ship’s surgeon in vaccinating a steerage passenger brought to a port in this State, evidence consisting of the printed quarantine regulations of the port, to the effect that only such steerage passengers as held certificates from such surgeon that they had been vaccinated would be allowed to land without detention or vaccination, and of testimony that such regulations were carried out, was held to be properly admitted.</p>

<p>Contbagt, for breach of an alleged agreement to employ the plaintiff as the lowest bidder to erect the new Chamber of Commerce for the defendant, which agreement was entered into with him by a building committee appointed under the following vote, passed on October 9, 1889, by the defendant’s stockholders: “Voted, that a committee of five be appointed by the chairman of this meeting, of whom the president shall be one, with full powers and authority to procure plans and specifications for a building, and make all contracts for the erection and completion of the same, subject to the approval of the directors.” At the trial in this court, before Holmes, J., the jury, as requested by the judge, assessed the amount of the plaintiff’s damages, and answered in the affirmative the following questions submitted to them:</p> <p>“ 1. Did the committee on building purport to make a contract on behalf of the defendants by which they agreed to accept the lowest bid in case the building was built substantially in accordance with the plans and specifications submitted, without reserving the right to reject bids in that .case? 2. If such contract was made, was it approved by the directors? 3. If such contract was made, was it within the ostensible authority of the committee? 4. Was the building, as finally contracted for, a building substantially in accordance with the said plans and specifications ? ”</p> <p>The judge thereupon directed a verdict for the defendant, and reported the case for the consideration of the full court. If the direction was wrong, judgment was to be entered for the plaintiff for the amount of damages found by the jury.</p> <p>The case was argued! at the bar in March, 1891, and after-wards, in June following, was submitted on the briefs to all the judges.</p>

<p>Corporation— Certificate — Fraudulent Representations — Action of Deceit.</p> <p>If the officers of a foreign corporation execute the certificate required by the St. of 1884, c. 330, § 3, to enable the corporation to file it with the commissioner of corporations in order that the corporation may do business in this State, an individual who finds it there on file, and is induced by misstatements contained therein to take the promissory notes of the corporation, cannot maintain an action of deceit therefor against such officers.</p>

<p>Bill nr equity to obtain a share of the income of a trust fund. Allen, J. reported the case for the consideration of the full court.</p> <p>The case was argued at the bar in November, 1890, and afterwards, in September, 1891, was submitted to all the judges except Field, C. J. and Barker, J.</p>

<p>Railroad—Deed of Right of Way — “ Family ” — Limitation of Grant.</p> <p>The grandchild of the grantor of a right of way to a railroad corporation, by a deed which provides that “the said grantor and his family shall have and enjoy the right of free passage ” in its cars over the railroad “ so long as the land and appurtenances hereinbefore described shall continue to be used ” for railroad purposes under its charter, after ceasing to be a member of such grantor’s household, is not entitled to a free pass over the railroad as one of his family.</p>

<p>Bill in equity, filed December 5, 1887, in this court, under the Pub. Sts. c. 151, § 2, cl. 11, and the St. of 1884, c. 285, § 1, to compel the defendant to sell and transfer his membership in the Boston Stock Exchange, and to apply the proceeds to the plaintiff’s claim. On December 31, 1888, a decree was entered by a single justice, which recited the defendant’s indebtedness to the plaintiff in the sum of $6,050, and that the defendant had no property that could be reached or taken on execution in an action at law, and ordered him forthwith to sell and transfer such membership in due form, and out of the proceeds of such sale, after satisfying the claims of the Exchange or of members thereof, if any, to pay to the plaintiff the balance remaining, to an amount not exceeding the amount of his claim. From this decree the defendant, on January 25, 1889, appealed to the full court. On March 26, 1889, one Davenport filed a petition, reciting that on March 22,1889, he had been duly appointed the assignee in insolvency of the defendant’s estate, and praying that he might intervene in the case and prosecute the defendant’s appeal for the benefit of creditors, which petition was allowed. On April 18, 1889, Davenport filed a supplemental answer, to which the plaintiff filed a replication on July 16,1890. • Subsequently, on February 18,1891, the plaintiff and the assignee signed and filed an agreement in writing, which recited that the defendant, pending his appeal and before going into insolvency, transferred his membership in the Stock Exchange, and, after satisfying various claims due the members thereof, had left in his hands the sum of $1,547.83, which amount he thereupon paid over to his counsel, in whose hands it still was, subject to the control of the assignee in insolvency, to which sum the plaintiff claimed to be entitled; and that there had been proved against the plaintiff’s estate in insolvency claims amounting to $3,052, besides which there were claims unproved amounting to $3,500, exclusive of the plaintiff’s claim.</p> <p>Field, C. J., at the request of both parties, reserved the case upon the original appeal, the pleadings subsequent thereto, and the agreed statement of facts filed by the parties, for the consideration of the full court, such decree to be entered as justice and equity may require.</p>

<p>Ancient Grant — Great Ponds — Colony Ordinance — Possession — Injunction.</p> <p>The Colony ordinance of 1647 was extended so as to become a part of the common law of Plymouth Colony, by usage and judicial decision, only from 1692, the date of the Province Charter.</p> <p>By the Pocasset grant of March 5, 1680, from the Plymouth Colony to certain individuals for a substantial sum of money, the waters within the territory described in the conveyance, including great ponds so far as they lay within it, and the water rights connected therewith, passed to the grantees as private property before the colonial ordinance of 1647, devoting great ponds not then appropriated to private persons to the public use, went into effect in that Colony.</p> <p>Where the whole of one great pond, and part of another great pond connected with it, were conveyed to certain individuals as private property by the Plymouth Colony prior to 1692, neither the Colony as owner of the remaining part of the second pond, apart from the exercise of sovereign powers, nor its grantee thereof, could draw off the water to the detriment of the first grantees.</p> <p>It seems that the Watuppa Reservoir Company, a corporation made up of the representatives of the several mills on the Fall River, which has built and maintains a dam at the outlet of the Watuppa ponds, and controls the whole water power in the interest of such owners and for their benefit, has a sufficient possession to entitle it to an injunction to prevent a diversion of the water from such ponds.</p>

<p>Bill in equity, against Thomas F. Hernon and Ellen F. Hernon, filed in the Superior Court on August 4, 1890, to have certain real estate applied in payment of the plaintiff’s claim. The case was heard by Dewey, J., who reported it for the determination of this court, and was as follows.</p> <p>The bill alleged that Thomas F. Hernon represented to the plaintiff that he had bargained for a parcel of land in Boston, which was described, and was to have a deed of the same and to build a house thereon; that he entered into a contract with the plaintiff to perform the labor and furnish materials in constructing the same, and the plaintiff had done so to the extent of $722.50, which amount was still due to the plaintiff; that after the plaintiff had begun the work, on March 28, 1890, Thomas F. caused this parcel to be conveyed, and himself conveyed other land owned by him, through a third person, to Ellen F., in fraud of his creditors; that both defendants “ participated in said fraudulent intent in both of said conveyances”; and that Thomas F. had “no attachable property standing in his own name, and that all of said conveyances were made for the purpose of delaying, defeating, and defrauding the creditors of said Thomas F. Hernon, and of securing said property to his use and benefit.” The bill then proceeded: “ Seventh. That the labor and materials so done, performed, and furnished by the plaintiff upon the said house upon the employment of the said Thomas F. Hernon have gone into the estate so caused to be conveyed to the said Ellen F. Hernon, as stated in the third item in this bill of complaint, and that the same was done, performed, and furnished with the knowledge and consent of the said Ellen F. Hernon, and that she is liable therefor.” The prayer of the bill was that the sum due the plaintiff “from the said defendants, each or either of them,” might be ascertained and decreed to be paid to the plaintiff, and that such real estate, or so much as might be necessary, should be applied to such payment.</p> <p>The' defendants, on August 28, 1890, demurred to the bill for want of equity, and “ because the plaintiff had a full, adequate, and complete remedy at law.” The defendants on the same day filed an answer which denied that the conveyances in question were made to Ellen F. in fraud of creditors, and alleged that Thomas F. in making the contract with the plaintiff acted as the agent of Ellen F.; and that the plaintiff had failed to perform his contract. Subsequently the counsel for the parties signed an agreement that the case might be “ marked for hearing for Thursday, November 13,1890.” The replication was filed on December 2,1892; and the case came on to be heard on the same day, and the parties with their witnesses were then before the court. The defendants then asked leave to file an amendment to their answer, reciting that they desired a trial, by jury of the facts involved in the case. The judge, upon the plaintiff’s objecting, declined to allow the amendment and the framing of issues for a jury, and directed the trial to proceed. After finding that the conveyances were not made by Thomas F. with the fraudulent purpose alleged in the bill, and that in making the contract with the plaintiff he was acting for and in behalf of his wife, with full authority as her agent to bind her in the premises, of all of which the plaintiff was ignorant, the judge made a decree that the plaintiff “ recover of the defendant Ellen F. Hernon for the work and labor performed .and materials furnished . . . the sum of five hundred and fifteen dollars,” with the costs of suit, “ and that execution issue therefor in due form, and that the bill be dismissed without costs as to the defendant Thomas F. Hernon.”</p>

<p>Railroad — Private Crossing — Right of Way — Extinguishment of Easement License.</p> <p>Since the St. of 1874, c. 372, § 81, (Pub. Sts. c. 112, § 113,) a structure, by which a landowner whose lands have been appropriated by a railroad company may conveniently cross the tracks at the same grade, or over or under the same, may be ordered, if the county commissioners judge it reasonable for his security and benefit.</p> <p>An easement may be extinguished, revoked, or modified by a paroi license granted by the owner of the dominant tenement, and executed by the owner of the servient tenement.</p> <p>If a paroi license- is to do that upon the licensee’s own land which prevents the further enjoyment by the licensor of an easement in the land, such a license ' when executed is irrevocable, and the effect of it is to extinguish the easement. On the issue whether a right of way across the plaintiff’s railroad tracks enjoyed by the defendant had been extinguished by his license to the plaintiff to close up the way conditioned upon another suitable way being furnished to the defendant, which condition the plaintiff had performed, the plaintiff, against the defendant’s objection, offered evidence that, on account of the great increase of the plaintiff’s business the condition of affairs had become such that it was not safe for the operation of the road to continue such way; and that additional accommodations, which, if built on the plaintiff’s land, would necessarily extend across and close up the way, were absolutely necessary for the accommodation of the travelling public. Held, that the evidence was properly admitted.</p>

<p>Will — Power of Appointment — Assets.</p> <p>A testatrix' out of the income of a trust fund gave an annuity to her son G., to whose children one seventh of the fund was to go at his death, and directed the rest of such income to be divided among her six daughters during their lives, the share of the income of each at her death to be paid to her issue “ until the time at which the principal estate is to be held' and distributed as hereinafter is provided for, and to the use of my grandchildren ”; if no issue, to her surviving sisters and their issue. The will then provided that “each and every of my daughters are authorized to dispose of their several proportions of the principal of the trust estate by will or other testamentary instrument, which power shall be exercised to take effect only in the event that the daughter exercising the power herein conferred shall decease without issue her surviving”; and in a later clause, that “ at the decease of the survivor of my seven children, the estate in the hands of the trustees, subject to the provisions hereinbefore made for my son and his child or children him surviving, shall be divided into shares equal in number to the number of my grandchildren then living, excluding from such number the child or children of my son G. unless they shall be the sole surviving grandchildren, and one share shall thereafter be held in trust for each grandchild.” G. died before his sisters, one of whom, S. P., afterwards died leaving no issue, having disposed by will of her share in her mother’s estate. Held, that S. P. had a right to make a disposition of her share of the principal of the trust fund to take effect upon her death; and that such share became in equity a part of the assets of her estate, and was to be paid over to her executors to be administered by them.</p>

<p>Park — Dedication to the Public — Acceptance.</p> <p>In 1866 six landowners united in a plan to establish a seaside resort, and became the sole stockholders and directors of a laud company, to which the land was conveyed, four directors forming a quorum and having the powers of the entire board. The land was laid out, and plans were prepared showing among the lots open spaces, one, afterwards called Ocean Park, being delineated on a plan recorded in August, 1867. Other land was bought, and a new plan recorded in 1870, showing three parks, including Ocean Park, which alone was somewhat changed in boundary as appeared on a plan dated June, 1871. A few lots were sold in 1867 and 1868, and later sales were rapid and numerous. Printed copies of tlie plans, that of 1867 with Ocean Park added, were widely circulated as advertisements of the sale of lots, and were kept in the directors’ room for free distribution. At the outset those interested discussed the leaving of such spaces open, the lots fronting thereon being deemed preferable, and at sales assurances were freely given that they would always be kept open. Four of the directors declared that it was the intention to make these spaces public parks; another admitted that he had seen and himself given away the plans; and the remaining one, who thought too much land was devoted to parks, afterwards acquiesced in the opinion of the majority. These spaces were used by the public as parks before the year 1880. Held, upon an information filed in August, 1887, to prevent interference with the public use of the parks by one to whom the company attempted to convey them in 1885, that there was an intention on the part of the owners to dedicate them to the use of the public as parks, and that the same had been used by the public enough to show an acceptance thereof. ,</p> <p>The acceptance of a dedication of land to the public at common law need not be very specific or appear of record, and need not be by the town in which the land lies.</p> <p>Upon the dedication of a park to the public at common law, the fee remains in the original owners.</p> <p>The grantee of land of which a previous dedication has been made to the public is bound by such dedication, whether it appears of record or not, and cannot claim to be a bona fide purchaser for value, especially if he is put upon inquiry, and malees a laborious investigation of the facts, and pays much less than the value of a clear title to the land.</p>

<p>Tort. Trial in the Superior Court, before Thompson, J., who allowed the following bill of exceptions:</p> <p>“ This was an action to recover for an injury to the plaintiff’s building, the injury consisting in the breaking of a light of plate glass in the front of said building. The plaintiff claimed that the glass was broken by the carelessness of the defendant’s servant. It appeared at the trial, that the glass was broken by one McCullock, while he was engaged in delivering a load of coal to the plaintiff, which had been ordered by the plaintiff of the defendant, who was a dealer in coal. The defendant claimed, and offered evidence tending to show, that at the time of the delivery of the coal McCullock was not his servant or in his employ, and undertook to deliver the coal without his direction or knowledge. It appeared that McCullock was a member of the defendant’s household, accustomed to be in and about the defendant’s coal-yard, and that he took the coal from the defendant’s yard and on one of the defendant’s wagons. It also appeared at the trial, that, subsequent to the delivery of the coal and with a full knowledge of the accident and of the delivery of the coal by McCullock, the defendant presented a bill for the coal to the plaintiff, and claimed that the plaintiff owed him for the same. The court found as a fact that the glass was broken by the carelessness of McCullock in delivering the coal, and that at the time of the delivery of the coal McCullock was not in fact the agent or servant df the defendant, or in Ms employ, but found that the delivery of the coal by McCullock was ratified by the defendant, and that such ratification made McCullock in law the agent and servant of the defendant in the delivery of the coal. And the court ruled that the defendant, by his ratification of the delivery of the coal by McCullock, became responsible for his negligence in the delivery of the coal. To this ruling the defendant excepted, and now excepts, and prays that his exceptions may be allowed.</p> <p>“ The case was tried by the court without a jury, and the finding of the court was for the plaintiff.”</p> <p>The case was submitted on briefs in November, 1890, and afterwards, in September, 1891, was submitted on the same briefs to all the judges except Field, C. J.</p>

<p>Tort, for injury to the plaintiff’s horse. At the trial in the Superior Court, before Mason, J., it appeared that the plaintiff’s horse and the defendant’s horse were both left facing each other, unattended and unfastened, on Hanover Street in Boston. The evidence introduced by each party tended to show that his horse was approached and interfered with by the horse of the other party; and that the injury in question resulted. The defendant’s evidence tended to show that the plaintiff’s horse walked up to the defendant’s horse, and began to bite his neck in a playful manner, and that in this way the horses and harnesses became entangled, and the injury resulted ; and that the plaintiff’s horse was apt to step up to other horses standing near and play with them by biting them on the neck. The defendant called one Curtis, who was a member of a firm whose shop was situated near where the plaintiff’s horse was accustomed to stand, and he testified that he knew the plaintiff’s horse, and had seen it standing there two or three times a week; but that all he knew of the habits of the horse was what he saw it do with the horses of the firm, which he generally turned the other way. The witness was then asked, “What was the habit of the plaintiff’s horse with reference to other horses standing near?” Upon the plaintiff’s objecting, the evidence was excluded, and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and the défendant alleged exceptions.</p> <p>The case was argued at the bar in November, 1890, and after-wards, in September, 1891, was submitted on the briefs to all the judges.</p>

<p>Contract — Unascertained Promisee — Bight of Beneficiary to sue — Covenant.</p> <p>A covenant cannot be created to arise wholly in the future between the covenantor and a party who at the time is unascertained, and from whom no consideration is to move, and who is not in any way privy to any present agreement by the covenantor.</p>

Contract on a promissory note, dated June 9, 1883, signed by Charles W. French, and made payable to the order of Ferdi nand F. French in one month from date, and indorsed in blank by him, and he alone defended. Trial in the Superior Court, before Staples, J., who refused to order a verdict for the defendant, but ordered a verdict for the plaintiff; and the defendant alleged exceptions. The case appears in the opinion.

<p>Mutual Mistake — Reformation of Deed — Appeal — Findings of Single Justice.</p> <p>Upon a bill in equity to reform a deed, so that its northerly line should exclude a building, and its easterly line, which was described as running “ west about ten rods ” to land of certain heirs, should read “ west two rods,” it appeared on appeal from a decree of a single justice dismissing the bill, upon a report of the whole evidence, that the oral testimony as to the northerly line was conflicting, and that the only evidence as to the easterly line was the scrivener’s testimony that, in copying the description from an earlier deed, he read the word “two” as “ ten.” In the printed copy of this deed annexed to the report the word was printed “ ten,” and upon inspection of the deed it was impossible to determine whether the word was intended for ten or two. There was no dispute as to where the land of such heirs was. Held, that the decree should not be reversed.</p>

<p>Dog — “ Owner or Keeper ” — Several Liability — Election.</p> <p>Under the Pub. Sts. c. 102, § 93, making the “ owner or keeper ” of a dog liable for injuries caused by it, the owner and keeper are not jointly and severally liable as tortfeasors; and, after the recovery of a judgment for such an injury against one of them, which remains unsatisfied by reason of his taking the poor debtor’s oath, an action cannot be maintained against the other for the same injury.</p>

<p>Personal Injuries — Negligence — Railroad Turn-table — Implied Invitation — Child— Trespass.</p> <p>A boy, attracted to railroad premises by a turn-table thereon left unlocked or unguarded near a public highway, or in an open and exposed position near the accustomed or probable place of resort of children, cannot recover for personal injuries sustained while at play upon the turn-table, either on the ground of an implied invitation to come there, or of a duty on the part of the corporation to refrain from ordinary negligence in its management of the turn-table.</p>

<p>Contract, to recover the price of five barrels of whiskey, sold by the plaintiffs to the defendants. Writ dated May 10, 1889.</p> <p>At the trial in the Superior Court, before Hammond, J., it appeared in evidence that the plaintiffs were non-residents, having their usual place of business in the city of Philadelphia, and that they sold the whiskey in question to the defendants, and had not béén paid for the same ; that the whiskey was sold to the defendants, whose place of business was in Boston, through one Woodbury, an agent of the plaintiffs having a place of business in Boston, who notified the plaintiffs of the sale; that the whiskey was sent by the plaintiffs from Philadelphia, in accordance with the notice from Woodbury, by a common carrier selected by the plaintiffs, and delivered at the defendants’ place of business in Boston at the plaintiffs’ request, the last delivery being in April, 1889; and that the whiskey when delivered to the defendants was in the original unbroken package in which it was shipped from Philadelphia.</p> <p>The defendants offered to show that the contract for the whiskey was made with Woodbury in Boston, and that it remained the property of the plaintiffs until it reached the defendants’ place of business in Boston; and that neither the plaintiffs nor Woodbury had any license or authority to sell intoxicating liquors in Boston.</p> <p>The judge ruled that, if the jury were satisfied that the defendants received the whiskey under the contract, the plaintiffs were entitled to recover, notwithstanding the fact that they had no license, if they delivered the whiskey in the same unbroken package in which it left Philadelphia, and, the defendants not desiring to go to the jury on the question whether the whiskey was thus delivered in the original package, ordered a verdict for the plaintiffs; and the defendants alleged exceptions.</p>

<p>Pledge by Partner — Non-performance of Promise — Sale of Collateral — Application of Proceeds to Firm Debt.</p> <p>Shares of stock were pledged by a member of a firm to secure a loan to him from a bank, then holding the firm’s acceptances. He gave the bank a demand note made out upon a printed form furnished by it, reciting that “ on the non-performance of this promise ” the bank might sell the stock and apply “ the net proceeds to the payment of-this note,” accounting to him “for the surplus, if any ”; and that “ such surplus, or any excess of collaterals upon this note,” should be applicable “to any other note or claim against me held by said bank.” Upon a demand he made partial payments, but failed to pay the residue, requesting the bank to make the balance a time loan, which the bank refused, it being understood, however, that the demand should not be pressed without further notice. This notice the bank gave, and, upon non-payment, sold the stock for an amount sufficient to pay what was due on the note, and leave a balance in its hands. Held, that there was a non-performance of the promise contained in the note, which entitled the bank to sell the shares. Held, also, that the bank could apply the balance in its hands to the payment of the firm acceptances remaining unpaid.</p>

<p>Will—Residuary Clause — Aleatory Gift.</p> <p>A testator, by his will, after giving his only son one half of one seventh of the income of a trust fund, and each of his six daughters one seventh and one sixth of one half of one seventh of the same, provided that, “ if any one or more of my said daughters or son shall decease, leaving no child or children living at the time of such decease, the principal sum of which such deceased daughter or son may have had the income for life shall be distributed to the surviving daughters and son; that is to say, the income for their several lives, and the principal to their children, as above provided and arranged.” The son and the daughters survived the testator, and the son then died leaving one child, and subsequently one of the daughters died childless. Held, that the son’s child was entitled to share in the principal of the share of which the deceased daughter received the income; and that this right was not modified by a codicil which increased the son's share of income to one seventh.</p>

<p>Contract, against “ Daniel S. Pratt, as he is executor of the will and estate of Susan B. Pratt.” The declaration was as follows: “ And now comes the plaintiff and says that Daniel S. Pratt made a promissory note, a copy whereof is hereto annexed, marked A, payable on the terms and conditions confcained in the contract, a copy whereof is hereto annexed, marked B ; and the said Susan B. Pratt, deceased, indorsed said note, (see copy of indorsement on back of said note,) and the said Susan B. Pratt became and was a joint promisor; that the plaintiff is the owner of said note, and this' defendant as administrator owes the plaintiff the amount thereof, and interest thereon.” The copy marked A was as follows:</p> <p>“•$351.14. Wellesley Hills, March 5, 1884. Four months after date, I promise to pay to A. J. Fiske & Co. at their office in West Newton, Mass., three hundred and fifty-one -^g dollars, same being for amount of balance of $219.49, now due upon the contract made with A. J. Fiske, October 30th, 1882, and including also the amount of said Fiske & Co.’s bill to Novémber 23d, 1883, for roofing and sundries, amounting to $131.65, upon the express understanding and agreement of the promisor and the indorsers of this note that it shall be held and carried upon the terms and conditions of said contract of October 30th, 1882, and in no other way. The signatures of said promisor and said indorsers to this note being by mutual agreement their assent to the addition of said $131.65- to the balance now due on said contract, and incorporated in this note as part of said contract from March 5th, 1884, until paid in full.” This instrument bore the following : “ Indorsed by Susan B. Pratt, party to contract.” The contract referred to in the declaration, and annexed thereto and marked B, was dated October 30, 1882, and was between Andrew J. Fiske, party of the first part, Daniel S. Pratt, party of the second part, and Susan B. Pratt, party of the third part, and contained the following: “The said Fiske, the party of the first part, in consideration of one dollar, and for the further consideration of a certain promissory note payable to him, signed by the said Daniel S. Pratt of the second part, and indorsed by the said Susan B. Pratt of the third part, dated October 30th, 1882, running four months from that date, and amounting to three hundred thirty-two dollars, receipt of both of which is hereby acknowledged, doth hereby covenant and agree with the parties' of the second and third parts that he will, at the maturity of the said note, (at the end of four months from its date,) renew the same, and will continue to renew it from time to time in the manner hereinafter specified during the full term of three years from the date of this instrument and said note. . . . And the said Susan B. Pratt of the third part hereby agrees to indorse the original note for three hundred thirty-two dollars, and its renewals during three years, with the express understanding and agreement of said Fiske, that her liability in consequence of such indorsement shall be limited to thirty-three dollars for each four months note or twenty-five dollars for each three months note.”</p> <p>The defendant demurred ,to the declaration, on the ground, among others, that it did not appear from the declaration that “ due notice of the non-payment of the note declared on was ever given to the defendant or his testator.”</p> <p>The Superior Court sustained the demurrer, and the plaintiff appealed to his court.</p> <p>The case was submitted on briefs in March, 1891, and after-wards, in July following, was submitted on the same briefs to all the judges except Field, C. J.</p>

<p>Promissory Note — Commencement of Action — Account annexed—Alabama Claim—Commissioners' Fees — Practice — Attorney and Counsellor.</p> <p>An action may be brought upon a promissory note which by its terms is payable “ when the United States pays judgments ” under §§ 5 and 8 of the U. S. St. of June 5, 1882, upon the “ Alabama Claims in the so called class 2 cases,” if the United States has in the main paid all judgments of the first class in full, and over thirty-five per cent of the greater part of those of the second class, and has substantially exhausted the fund.</p> <p>A single charge for services by an attorney, in writing different letters upon the same day and relating to the same subject matter, may be inserted in one item of an account annexed.</p> <p>Section 847 of the U. S. Rev. Sts. regulating “commissioners’ fees ” relates to the commissioners appointed by the Circuit Courts of the United States under § 627, and does not affect a private agreement between an attorney and a commissioner appointed by the Court of Commissioners of Alabama Claims, providing for a certain charge per day for taking depositions.</p> <p>Instructions issued by the Court of Commissioners of Alabama Claims to commissioners appointed and authorized to take testimony to be used in the trial of causes pending therein, which were not put in evidence at the trial of an action brought by such a commissioner for his services in such a cause, will not be first received at the argument in this court of exceptions taken at such trial.</p> <p>An attorney who, for good cause, but without the consent of the court or of his client, withdraws from the conduct of a suit then upon the trial list, in which his client has other counsel, is not thereby precluded from recovering for his previous services in the suit.</p>

<p>Guardian of Minor — Notice of Appointment — Adoption of Illegitimate Child — Notice to Father.</p> <p>Publication of notice is not essential, under the Pub. Sts. c. 139, §§ 2, 3, to the validity of an appointment by the Probate Court of a guardian for a minor under fourteen years of age.</p> <p>Notice to the father of an illegitimate minor of an application for its adoption is not required by the statutes of this Commonwealth; the written assent thereto of its guardian is sufficient.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ.

Contract, upon a promissory note for five hundred dollars, dated October 29,1887, and made payable on March 1,1888, and signed by the defendant. Writ dated December 11, 1890.

<p>Intoxicating Liquors — Common Nuisance—“Place.”</p> <p>A hotel is a “ place ” within the meaning of the Pub. Sts. c. 101, § 6, providing that “ all buildings, places, or tenements . . . used for the illegal keeping or sale of intoxicating liquor, shall be deemed common nuisances.”</p>

Contract, for breach of the covenant of warranty in a deed of land. Trial in the Superior Court, without a jury, before Braley, J., who found for the plaintiff; and the defendant alleged exceptions, which, so far as material to the points decided, appear in the opinion.

<p>Railroad — Contract of Transportation — Unloading Live Stock — Usage.</p> <p>A railroad company, under its contract to transport and deliver certain horses and to store them if not called for, which stipulates that it will not be liable as a common carrier after their arrival at the “ place of destination and unlading,” that “live animals will only be taken at the owner’s risk ” during “ transportation, loading, and unloading, unless specially agreed to the contrary,” and that freight “ must be taken away within twenty-four hours after being unladen from the cars,” is bound to unload the horses, though at the owner’s risk, irrespective of a local usage or general regulation of the company requiring consignees to unload live stock.</p>

<p>Petition for a writ of certiorari. The case was heard by I)evens, J., and reserved by him. for the consideration of the full court. The facts appear in the opinion.</p> <p>The case was submitted on briefs, in November, 1890, and afterwards, in June following, was submitted on the same briefs to all the judges except Field, C. J. and Lathrop, J.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by being run down by the defendant’s locomotive engine at the crossing at grade of its railroad and Spring Street in Boston. Trial in the Superior Court, before Mason, J., who ruled that upon the evidence the action could not be maintained, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. The nature of the evidence appears in the opinion.</p> <p>The case was argued at the bar in January, 1891, and after-wards was submitted on the briefs to all the judges.</p>

<p>Two COMPLAINTS, for unlawfully exposing and keeping for sale intoxicating liquors with intent unlawfully to sell the same. The complaint in each case was addressed “To A. J. Fargo, a Special Justice of the District Court of Hampshire,” and the jurat thereon was signed “ A. J. Fargo, Special Justice.” The warrant issued upon each complaint was also signed “ A. J. Fargo, Special Justice.” Neither the complaint nor the warrant bore a seal of the court.</p> <p>In the Superior Court, before the jury were impanelled, the defendant filed the following motion to dismiss the complaint: “1. Because said complaint and warrant are not in due form of law. 2. Because there is no seal of the District Court of Hampshire attached to the complaint or warrant in said case.</p> <p>3. Because ifc does not appear that A. J. Fargo, Esq. had any right or authority to receive said complaint or issue said warrant.</p> <p>4. Because said complaint and warrant are not sufficiently signed, sealed, and executed according to law. 5. Because no offence known to the laws of the land is plainly and formally, fully, and substantially alleged, charged, or set forth in said complaint and warrant.”</p> <p>At the hearing before Thompson, J., upon this motion, it appeared that A. J. Fargo was a special justice of the District Court of Hampshire, and that this court had both a clerk and a seal. The judge overruled the motion, and the defendant excepted.</p> <p>The defendant was then tried, and the jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff, while employed by the defendant in its steam saw-mill.

<p>County Commissioners — Crossing of Way by Railroad — Separation of Grade — Sharing of Expense by City — Petition in Equity by Tax-payers.</p> <p>A city will not be enjoined, upon the petition of ten tax-payers under the Pub. Sts. c. 27, § 129, from paying its share of the expense of abolishing a level crossing therein of a street and railroad, upon due proceedings had under the operation of which important rights have accrued, because the opinion of the mayor and aldermen as to the necessity thereof, transmitted to the county commissioners as required by the Pub. Sts. c. 112, § 129, was not expressed by formal vote or evidenced by record; such an objection, if sound, should be taken before the county commissioners at the beginning of the proceedings, and if taken for the first time upon such a petition comes too late.</p> <p>The Pub. Sts. c. 27, § 129, authorizing petitions in equity by ten tax-payers of a city or town to prevent the illegal expenditure of money, are not intended to afford means of testing, by proceedings purely collateral, questions affecting the validity of the findings or decrees of other tribunals.</p> <p>Tax-payers in a city, who have no particular interest in a schoolhouse lot therein taken in separating the grade, at a crossing of a street and a railroad, cannot maintain a petition under the Pub. Sts. c. 27, § 129, to prevent the payment by the "city of its share of the expense of such separation, upon the ground of a want of authority in the county commissioners, even if the commissioners could not lawfully take any part of the lot for the purpose of abolishing the crossing. A petition by ten tax-payers, under the Pub. Sts. c. 27, § 129, to prevent a city from paying its share of the expense of separating the grades of a railroad and a street at a crossing, which is filed immediately after a vote by the city council to raise the money, but more than a year after the order of county commissioners prescribing the work and an award fixing the city’s share of the expense were made, cannot be maintained where the crossing is located near the centre of the city, and the railroad company has already incurred large expense in prosecuting the work.</p>

<p>Tort. The declaration alleged that Selina Hawks was the owner of a parcel of land in Greenfield, through which flowed Cherry Bum. Brook; that by means of a dam built across the brook below her land a pond of fresh water of the area of about eight acres was formed upon her land, “ creating thereon a valuable privilege for cutting and harvesting ice ”; that on January 1,1889, she sold to the plaintiff this privilege for the term of one year; and that the defendants, intending to deprive the plaintiff of the profit of harvesting the ice, opened a gate in the dam and drew off the water, whereby the ice thereon, which the plaintiff was engaged in harvesting, settled into the mud at the bottom of the pond and was destroyed, to the great damage of the plaintiff. The answer contained a general denial, and set up that the defendant’s acts were done under the direction of one Warner and one Sanderson, who had a legal right to draw the water from the pond in question.</p> <p>Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, which, so far as material to the points decided, was as follows. It appeared in evidence that the ice in question was formed upon a pond, a part of the waters of which covered land of which Hawks owned the fee; that on January 1,1889, she sold to the plaintiff the privilege of cutting and storing what ice might form thereon for the term of one year from that'date; that the defendants were ice-dealers, and acted as agents of Warner and Sanderson, who owned the dam by which the pond was created; and that the water was caused to be drawn off regardless of the plaintiff’s rights, and for the purpose of destroying the ice. The ease was tried as if the action were against Warner and Sanderson. The plaintiff was allowed to introduce in evidence, against the defendants’ objection, the condition of the ice at the time the water was drawn off, the amount of ice in condition to harvest, how long it would take to harvest it, the minimum and maximum temperature at about that time, the fair price per ton for harvesting the ice, and the worth of the ice if harvested and placed in the ice-house. One of the plaintiff’s witnesses testified, on cross-examination, that many risks attended the harvesting of ice.</p> <p>The judge instructed the jury that the rule of damages might be stated generally, that, where one party has wrongfully injured, entirely destroyed, or impaired the value of another’s property, he must make it good to the party injured; that he must restore to the injured party his property, or the value of that which he has destroyed or impaired; that the true measure of damages in this case, if they found for the plaintiff, would be the market or cash value of the ice harvested and deposited upon the shore of the pond, less the expense of so harvesting and depositing it; and that to determine that value it would be necessary for them to find upon the evidence the quantity of the ice, the expense of harvesting and depositing it on the shore, the value of the ice so deposited, and then deduct the expense from the aggregate value of the ice on the shore, and the difference would be the amount of damages the plaintiff could recover. No objection or exception was taken to this statement of the rule of damages, if the plaintiff was entitled to recover the value of the ice.</p> <p>The jury returned a verdict for the plaintiff ; and the defendants alleged exceptions.</p>

<p>Tort, for personal injuries occasioned to the plaintiff in the defendant’s mill, from the alleged negligence of its employees. Trial in the Superior Court, before Sherman, J., who refused to rule that, upon the, evidence, the plaintiff could not recover, and, after a verdict for the plaintiff, allowed exceptions, which, so far as material to the point decided, appear in the opinion.</p>

<p>Robbery — Joint Indictment — Instructions to Jury.</p> <p>On an indictment for robbery against H. and R, it appeared that, as they were riding with the person robbed, H. seized the reins, stopped the wagon, and, jumping out, said, “ We are two to one, so give us what you’ve got,” meaning whiskey in such person’s possession and being so understood; and that at the same time H. told R., who was riding behind, to hold the horse, which he did, and H. took the whiskey, and both drank from the bottle. H. was defaulted. The presiding judge refused a ruling requested by R., that he could not be convicted unless it was found that he participated by some act or word at the time in the assault or menace by which the person robbed was induced to give up his property, and instructed the j ury that, if both defendants were engaged in a joint enterprise to rob such person, it was not necessary for both to do the acts of violence or of putting him in fear; it was enough if one did them, and the other was ready to assist and was aiding and abetting the one who did them in what he did; but that if R. “ did not participate in the purpose of H., and had no purpose to rob, and did not join in the purpose, if he was not there to aid and abet, and if his seizing of the horse was not for that purpose, he is not to be found guilty.” Held, that R. had no ground of exception.</p>

<p>Town Way — County Commissioners — Eminent Domain — Talcing Property devoted to Public Use.</p> <p>County commissioners may take a strip of land from a schoolhouse lot for a needed town way, where the use of the lot for school purposes, though considerably impaired, will not be wholly prevented.</p>

<p>Slander — Contradiction of Witness — Damages.</p> <p>In an action of slander in falsely telling the plaintiff’s workmen that there was arsenic in silk furnished by him to them to work with, if the plaintiff calls the mother of one of them as a witness to the fact that a machine for working the silk was removed from her house after the words were spoken, in order to show that such workman was deterred from longer working for him by the defendant’s statement, and she testifies that she cannot fix the time when the words were spoken, it is discretionary to admit evidence that at a former trial she testified that the words were spoken before the machine was removed.</p> <p>Damages claimed by such plaintiff for the trouble to which he was necessarily put, in order to determine whether there was arsenic in the silk and to protect his employees, will not be reduced because a company in whose general employment he was, and to which he was accountable for the time so spent, had told him that no deduction would be made by reason of lost time from the salary which it had paid him.</p>

<p>Writ op entry to recover possession of a farm in Southampton.</p> <p>At the trial in the Superior Court, before Barker, J., the contention on the part of the demandant was that the farm was conveyed to the tenant in fraud of Gilbert M. Hall, who was a creditor of his sons, George W. Hall and her husband, Leander C. Hall. There was evidence that George and Leander became the owners of the farm in 1884, as tenants in common; that Leander and his wife occupied the farm as a home, George living with them some of the time; that on February 17, 1888, Gilbert made a demand through an attorney upon his sons for payment of his claim, by a letter which was received by them on Saturday, the 18th; that on Monday following one Stannard, the tenant’s father, together with George, Leander, and the tenant, were at the farm, and talked about conveying the same; that on the same day they went from Southampton to Springfield, to an attorney’s office, and there deeds were drawn up from George and Leander to Stannard, and from the last named to the tenant; that the deed from Stannard was then executed and handed to Leander, who was directed by Stannard to carry it to Northampton to the registry of deeds for record; that the deed from Stannard to the tenant was carried home by him for his wife to sign, and subsequently was delivered to the tenant and duly recorded; and that Leander on the next day went to the registry of deeds and handed the deed to a clerk, but requested the clerk not to record it at the time, and went away, but soon returned and directed it to be recorded. The demandant then offered to show that when Leander entered the registry of deedá he was flushed in the face, appeared very much excited, acted as if nervous and in a hurry, and asked where the record of attachments was kept; that the clerk directed him to the office of the clerk of the courts, and he hurriedly went out of the room towards that office; and that he soon returned smiling, and said, “ It’s all right, you may record it.” The judge, upon the tenant’s objection, excluded the evidence thus offered; and the demandant excepted.</p> <p>The judge also excluded, upon the tenant’s objection, the following letter, written and signed by Leander, to the attorney of Gilbert: “Southampton, February 22, 1888. J. B. O’Donnell. Dear Sir, — Tours of the 17th at hand. I was not aware that there was any claim against us in that line. We will call and see you as soon as my brother is well enough to ride up there. Tours respectfully. L. 0. Hall.”</p> <p>There was also evidence that Gilbert brought an action upon his claim against George and Leander on April 6, 1888, and made a special attachment of the premises in question; and that subsequently, upon his recovery of judgment against them for the sum of $922.04, the farm was duly sold on execution and conveyed to the demandant. There was also evidence, that at the time of the conveyance to the tenant she had no personal property, and that she had none at the time of the trial; and that money was paid by Stannard for the farm to George and Leander at the time of the conveyance.</p> <p>The judge ruled that there was no evidence to sustain the claim of the demandant, and directed the jury to return a verdict for the tenant; and the demandant alleged exceptions.</p>

<p>Conte act, against the administrator de bonis non, with the will annexed, of the estate of Chloe A. Berry, on a bond for a deed signed by the plaintiff and by the testatrix.</p> <p>At the trial in the Superior Court, before Staples, J., the jury 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>The case was submitted on briefs in November, 1890, and afterwards was submitted on the same briefs to all the judges except Field, C. J.</p>

<p>Deceit — False Representations — Pleading.</p> <p>In an action of deceit, it is not enough to allege a false representation, but in some form it should be alleged that the representation was fraudulently made.</p> <p>Under a declaration for false representations, not alleged to have been made scienter or upon the defendant's personal knowledge, evidence that the defendant made the representations in question is immaterial.</p>

<p>Contract of Sale —Warranty — Rescission.</p> <p>A statement in a letter of instructions from a seller to bis agent relative to hams offered for sale, that “ there is an occasional ham sour in the marrow,” coupled with the question, “ Why do you not get the buyer to try them off in body and marrow, and make a careful inspection, and report best bid for them ? ” is not a warranty that not so many as one third of the hams were sour in the marrow.</p>

<p>Contract, to recover a sum of money voted to be paid by the defendant in compromise of a claim of the plaintiff, upon which an action of tort brought by her against the defendant was still pending in the Superior Court. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts, which, so far as material to the points decided, appear in the opinion.</p>

Contract, against the executor of the will of Martha G. Wheelwright, upon a covenant in an indenture under seal, dated February 13, 1885. The case was heard in January, 1890, by Meld, J., and reported by him for the consideration of the full court, and was as follows.

Contract, brought by an infant for wages alleged to be due him from the defendant. Trial in the Superior Court, without a jury, before Bond, J., who found for the plaintiff for the amount claimed by him, and allowed a bill of exceptions, the substance of which appears in the opinion.

Bill in equity, filed in the Superior Court, alleging that the plaintiff, on or about December 16,1889, became a party to a promissory note for $2,000, with his son, George T. Bryant, running to the defendant corporation, and at the same time assigned to it in writing thirty shares of its capital stock owned by him, of the par value of $3,000; that there was no legal consideration for the plaintiff’s becoming a party to the note, or for such transfer of shares, but^the…

<p>Two ACTIONS OF TORT, for personal injuries occasioned to the plaintiffs respectively by an alleged defect in a highway which the defendant town was bound to keep in repair. The cases were tried together in the Superior Court, before Mason, C. J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence that the highway in question was a much travelled way leading from Westfield in a westerly direction to Granville; that on April 14, 1890, in the' evening, the plaintiff Phelon started to drive home from Westfield to his home in Granville along this way, accompanied by the plaintiff Pomeroy; that his horse was safe and his wagon and harness suitable, and he was well acquainted with the road and its condition; that, in driving, the plaintiff Phelon sat on the right hand side of the wagon seat towards the northerly side of the road; that the portion- of the road where the defect was alleged to exist was lined with trees on either side, and when they approached it at about nine o’clock it was very dark; that at the point in question was a covered stone culvert extending entirely across the way, and a short distance to the east of it a rock cropped out within the way projecting above the surface from three to six inches; that the travelled part of the way was from thirteen to fourteen feet in width, and had been wrought for travel during the year before; that within the way as thus wrought, towards the southerly or left hand side thereon as the plaintiff was driving, there was on either side of the culvert a mud-hole from five to seven feet in length running with the road and from five to six feet in width, in which the mud was from six to eighteen inches deep; that west of the culvert, and on the northerly side of the road, was a ditch or gutter, which was about one and a half feet below the level of the road and was made in building the road; that scattered along the northerly side of the way, west of the culvert and north of the ditch, "were from ten to twelve pieces of rock, some of which had been blasted out of the road and deposited there, and the nearest of which was within three feet of the travelled part of the way; that this condition of things had existed for two or three weeks, and during that time, as the plaintiff Phelon had noticed, teams going over the road had kept on the northerly side thereof until the culvert and the mud-holes were passed ; that north of the mud-holes and between them and the ditch the road was comparatively hard, and the driving there was better than on the southerly side; that the space thus travelled between the mud-holes and the ditch was barely sufficient for one team to pass; that just before the plaintiffs reached the projecting rock, the plaintiff Phelon, knowing that he was coming to a dangerous place and that the horse was accustomed to the road and knew more about going in the dark than he did, allowed his horse in the darkness to go unguided around the mud-holes and past the culvert; and that the horse walked past the first mud-hole of the culvert and for ten or twelve feet beyond it, and then started to trot, when the wagon was in a moment tipped over, and the plaintiffs were thrown out, the plaintiff Pomeroy striking upon a rock about six feet from the travelled part of the way nearly opposite the westerly mud-hole, and both were injured.</p> <p>The defendant requested the judge to rule that there was no evidence to warrant a finding that there was a defect, or that the plaintiffs, or either of them, were in the exercise of due care; but the judge declined so to rule, and submitted the cases to the jury.</p> <p>The jury returned a verdict for the plaintiff in each case; and the defendant alleged exceptions.</p>

<p>Contract, upon an account annexed, to recover $15,000 for the plaintiff’s “ services in negotiating sale of brewery property” belonging to the defendants, with counts upon an alleged agreement by the defendants to pay the plaintiff the same amount for the same services.</p> <p>At the trial in the Superior Court, before Mason, C. J., it was in issue whether, in negotiating a sale of the defendants’ brewery, the plaintiff acted as their agent or as the agent of one Untermeyer, who represented certain capitalists desirous of purchasing such property. The defendants, in order to show that the plaintiff was the agent of Untermeyer, introduced evidence that one Sinclair had several interviews with the plaintiff and Untermeyer; that Untermeyer told Sinclair that he was negotiating for breweries, and urged Sinclair to see and persuade the defendant Houghton to sell to Untermeyer for the price that he communicated through the plaintiff. The defendants then offered to show what the interview was between Sinclair and Houghton ; but the judge, upon the plaintiff’s objection that it was not had in the presence of the plaintiff, excluded the testimony; and the defendants excepted. The defendants then introduced evidence that the plaintiff requested the defendant Houghton to have an interview with Sinclair, and that Houghton told the plaintiff that he would hear what Sinclair might have to say, and the plaintiff said he would speak to Sinclair about it; that thereupon the plaintiff did go to Sinclair and requested him to see Houghton ; and that Sinclair, at a subsequent interview, the plaintiff not being present, said to Houghton, “I want to advise you to sell your brewery; they offer you a pretty good price, and I think you had better take it.” The plaintiff objected to further evidence of this interview, on the ground that it took place in the absence of the plaintiff, and the judge excluded the testimony; and the defendants excepted.</p> <p>The plaintiff testified that, at the first interview he had with Houghton, the latter asked him, “ How is it about the commission in selling breweries ? ” and he replied that commissions at present at good prices were five per cent on what he got; and the plaintiff testified further, that the defendant Houghton agreed to give him $25,000 commissions. No other evidence was offered as to the value of the plaintiff’s services.</p> <p>The judge instructed the jury, in accordance with the plaintiff’s contention, that, if he had not proved the special contract alleged to have been made by him with the defendants for such commission, then the plaintiff was entitled, upon his account annexed, to recover for the value of the services rendered by him; and the defendants excepted.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>Toet, for personal injuries occasioned to the plaintiff while in the defendant’s employ. The declaration, which was in four counts, alleged that the plaintiff while in the exercise of due care was injured in the defendant’s factory; the first count, which was at common law, alleged that he was injured by a failure of the defendant to give him sufficient instructions as to his duties, and to notify him of the dangers and perils incident thereto; the second, which was framed on the St. of 1887, c. 270, § 1, cl. 1, alleged that he was injured by the failure of the defendant, or of some person in his service intrusted with that duty, to keep the ways, works, and machinery in proper condition; the third, which was framed on the St. of 1887, c. 270, § 1, cl. 2, alleged that he was injured by the negligence of some person in the defendant’s service intrusted with and exercising superintendence, and whose sole and separate duty was that of superintendence; and the fourth, which was also at common law, alleged that he was injured by the defendant’s failure to furnish suitable machinery and appliances for the prosecution of the plaintiff’s work as an employee, and negligence in not keeping them in good repair and condition.</p> <p>At the trial in the Superior Court, before Mason, C. J., there was evidence that the plaintiff, who was at the time of the accident seventeen years and eleven months old, was employed at that time, and had been thus employed for some seven or eight weeks, upon a carding machine in the defendant’s factory; that upon the side of this machine, in plain sight, were about eighteen gears of various sizes, moving in different directions, and some of them revolving very rapidly; that enclosing this machine, and at a distance of about five inches therefrom, was an iron fence made of light iron rods and bars, which covered the gears, and was so constructed that one half of it formed a gate; that this gate was made to swing automatically, and when closed rested upon a tongue or dog projecting from the side of the m.achine, and was secured by the bottom rail of the gate resting in a slot or groove near the end of this tongue; that it was the safer way thus to have the gate shut automatically; that waste material would accumulate both under and over the gears of this machine, and it was a part of the plaintiff’s duty to remove this waste, and he had been instructed by the defendant’s foreman to do so when the machine was in motion; and that just before the accident, and shortly after eight o’clock in the morning, the plaintiff, in order to remove waste from the machine, opened the gate and stood in the gap thus formed, as it was necessary to do, and while thus at work was struck in the back by the gate as it swung to, and was pushed or fell forward upon the machine, and was caught by the gears and seriously injured. The only defect relied on by the plaintiff was the defective condition of the gate in this, that when the gate came to, instead of the bottom rail sliding upon the tongue and falling into the slot and there remaining, it would strike against the end of the tongue and there remain only until the vibration of the machinery caused it to rebound, when it would stand open a foot or two; or if the bottom rail did slide into the slot, it would not remain fastened there, but the jar of the machinery would dislodge it and cause it thus to stand open unless moved by hand. The plaintiff, in describing the accident, testified that in freeing the gears from waste he stepped “ between the fence and the machine, and put my arm in and pulled the waste away. There was more waste there than usual. As I was doing this, the gate slammed on me and knocked me in between the gears. I had both hands on the waste, trying to release it. I was there about a minute before I got caught.”</p> <p>On cross-examination, the plaintiff admitted that he could see well enough at the time he was injured ; that he could see the gears plainly, and saw they were running, and could see where he put his hand; that he knew the gate was standing open, and no one swung it on to him, but he thought he hit the gate with his back as he was getting up, after taking the waste from underneath the gears, when he had to go down on his knees and was getting up to take the waste from the top of the gears. He testified, “ I know I must have touched it when getting up.” He also testified that he knew that if he got caught in the gears he should get hurt, and that he “ did not need any instructions about that.”</p> <p>At the conclusion of the evidence, the judge, at the defendant’s request, ruled that the plaintiff must elect to proceed under the first and fourth counts, or, the third count having been waived, under the second count; and the plaintiff excepted. The plaintiff elected to go to the jury on the first and fourth counts, and the judge thereupon, at the defendant’s request, ■ ruled that the evidence was not sufficient to go tó the jury, and ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

. Contract, upon an account annexed, to recover $1,449.49, with interest thereon from June 12, 1884, when it was alleged demand was made for the same. The answer set up the statute of limitations. Writ dated June 7,1890.

<p>Tort, under the Pub. Sts. c. 52, § 18, for personal injuries caused by an alleged defect in a cross-walk in a highway of the defendant town. At the trial in the Superior Court, before Bond, J., the defendant was permitted, without objection, to show the population of the town, the population of the different villages in the town, and the proportion of the inhabitants in the village where the accident occurred that would naturally use the cross-walk, and it also offered some evidence as to the number of miles of highway which it was bound to keep in repair. The defendant was also permitted, against the plaintiff’s objection, to show the amount of money raised for the repair of its highways for the year in which the injuries were received, and the amount of money actually expended for that purpose. There was no evidence as to the valuation of the town, and a question as to the tax rate for the same year was excluded.</p> <p>The judge instructed the jury that, in determining whether the alleged defect or want of repair might have been remedied, or whether the alleged injury might have been prevented by reasonable care and diligence on the part of the town and its officials, they might take into account the population, the amount of money expended by the town in the repair of its highways, and the situation of the place where the injury happened.</p> <p>The judge further instructed the jury as follows: “ Evidence has been introduced as to the amount of money the town raised this year, 1889, for the repair of its highways, and no evidence has been introduced as to the valuation of the town with a view of determining the burden which the ways, or the repair of the ways, were upon the town that year. They raised that amount of money. Now, in view of the amount that was raised, of the amount which it would have cost to have remedied this defect, if you find that there was one, you will say whether by the exercise of reasonable care and diligence on the part of the town this defect might have been remedied.”</p> <p>The plaintiff excepted to these instructions, and especially to so much 'thereof as instructed the jury to consider the amount of money the town raised during the year in which the accident occurred, and also to the admission of the evidence as to the money raised and spent by the town for the repair of its highways.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tort, by the administrator of the estate of Martin Dacey, for causing his death. Trial in the Superior Court, before Mason, C. J., who, after a verdict for the defendant, allowed exceptions, which, so far as material to the point decided, appear in the opinion.

<p>Petition, by George F. Smith and Mary J. Seymour, administrators with the will annexed of Mary Ann Smith, and by the legatees under the will, for instructions as to the distribution of the proceeds of certain real estate. The case was heard by Knowlton, J., who reserved it for the consideration of the full court, in substance as follows.</p> <p>The testatrix was the sole owner of a lot of land in Monson, and she and her daughter, Mary J. Seymour, were the owners each of an undivided half, as tenants in common, of an adjoining lot, on which was a dwelling-house in which the testatrix lived. By the first article of her will the testatrix provided as follows: “ To my daughter, Mary J. Seymour, who owns the homestead and the adjoining land jointly with myself, Í desire to be given one half of the proceeds of all the real estate held by us in the town of Monson, county of Hampden, and State of Massachusetts, to wit, the estate bounded.” Here followed a description by bounds which included both of the lots above mentioned. The lot of which the testatrix was the sole owner, and her undivided half interest in the other lot, had been duly sold under license of the Probate Court.</p> <p>Mary J. Seymour contended that she was entitled to one half of the proceeds of the testatrix’s interest in the lot which they owned together as well as one half of the proceeds of the other lot, while the remaining parties contended that she was not entitled to any of the proceeds of the testatrix’s interest in the real estate held in common.</p>

<p> Equity—Res Judicata. </p> <p>An equity case, in which it was sought to apply a trust estate to the payment of certain claims, was sent to a master, under a rule that all claimants, including the three trustees thereof, should establish their claims before him, and that those not doing so should be barred from sharing therein. The master reported the claims thus allowed, including debts of the second class, so called, which were incurred while the trust was being managed by one trustee alone, who had secured the other two trustees by a bond with surety. The two trustees, who were represented before the master and made no objection to his report, and whose counsel argued the case before this court, filed a petition in the case, more than a year after a rescript was sent ordering payments of claims of the second class, for a reconsideration of the former decision. Held., that the petition came too late.</p>

<p>Fraudulent Conveyance — Evidence.</p> <p>On a writ of entry, brought under the Pub. Sts. c. 172, § 49, to recover a parcel of land as standing fraudulently in the tenant’s name, it appeared that the demandant sustained personal injuries while in the employ of the tenant’s husband, and twelve days later the husband conveyed the demanded premises to her, and that afterwards the premises were duly sold and conveyed to the demandant upon an execution issued on a judgment recovered by him against the husband. The demandant was then permitted to introduce evidence that, before the conveyance to the tenant, the husband, after being asked to pay the demandant the wages due him, was told that the demandant intended to hold him liable for the accident, and therefore declined to give him a receipt in full of all demands. Held, that the evidence was competent as bearing upon the alleged fraudulent intent of the husband.</p> <p>The demandant also introduced evidence that a short time before the verdict in the original action, and after the verdict, and again at the time of the levy, his attorney made a search for real and personal property belonging to the husband without finding any. Held, that it could not be said that the evidence was improperly admitted.</p>

<p>Intoxicating Liquors — Evidence — Contradiction of Witness.</p> <p>The admission of a question put to a defendant in a criminal case, respecting a fact which his counsel in his opening admits and which the defendant’s reply so far as responsive denies, affords him no ground of exception.</p> <p>At the trial of a complaint for keeping intoxicating liquors with intent unlawfully to sell the same, a witness who, according to the testimony, was found in an intoxicated condition on the defendant’s premises just before the complaint was made, denied that fact, and further testified that he had not drunk intoxicating liquor for the past two years. Held, that he might be contradicted by evidence tending to show that he had been intoxicated repeatedly during that time.</p>

<p>Tort, for seducing the plaintiff’s wife. Answer, a general denial. At the trial in the Superior Court, before Staples, J., there was evidence that from April, 1883, to April, 1885, the plaintiff and his wife were in the defendant’s employ, he as a farm laborer and she as housekeeper; that during that time the plaintiff witnessed various acts of familiarity between his wife and the defendant, but said nothing to the defendant about them; that in May, 1885, the plaintiff left the defendant’s employ, assigning as a reason that the defendant had stepped between him and his wife; that in the June following he came to the defendant’s house and saw him, and was paid by him his wages; that he then left the defendant’s house, leaving his wife there, but taking his daughter, who was then fourteen years of age, with him, and a part of his household goods; that subsequently he sent his daughter back to the defendant’s to board, and she remained there with her mother; that thenceforward he had no communication with his wife until the trial; and that the plaintiff’s wife was delivered of a child at the defendant’s house in October, 1889, and the defendant continued to pay her for her services during the entire time, and from and after her confinement paid the daughter for her services.</p> <p>The plaintiff was permitted to testify, against the defendant’s objection, that when he returned to the defendant’s house in June, 1885, he was with his wife in a room adjoining that in which the defendant was, and that, in the presence of his daughter, he then asked his wife to go away with him, but she refused.</p> <p>The defendant asked the judge to rule, among other things, that, “ if the husband and wife were living in a state of separation, the action cannot be maintained because of criminal connection alone”; but the judge refused so to rule, and submitted the case to the jury.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court, by George Dana, as an heir of Ebenezer Dana, against the only daughter of the other heir, his brother E. Beaman Dana, deceased intestate, and her guardian, and the administrator of his brother’s estate, to establish a resulting trust in favor of Ebenezer Dana in land conveyed to E. Beaman Dana. The Superior Court entered a decree establishing the trust; and the defendants appealed to this court. The material facts appear in the opinion.</p>

<p>Bill IN equity, filed in the Superior Court, to redeem a parcel of land in Sutton from a mortgage. The case was referred to a master, and, upon the coming in of his report, the Superior Court made a decree that the plaintiff should have possession of the land upon payment of a certain sum to the defendant; and the plaintiff, being dissatisfied therewith, appealed to this court. The case, so far as material to the points decided, appears in the opinion.</p>

<p>Executor— Carrying on Business — Personal Liability— Opening to Jury.</p> <p>In actions of contract seeking to charge the defendants personally for goods purporting to he sold to the W. F. Co., and upon notes signed with that name, the plaintiffs’ counsel in his opening stated that W. D., whose executors and residuary legatees the defendants were, formerly did business alone under that name, and gave and indorsed notes signed “ W. F. Co., S. F. D., Treasurer,” by his son and manager S. F. D., who was called the “ Treasurer”; that after his death the business went on without a break in the same way as before, and the notes were in the same form except that they were indorsed by S. F. D., who continued to be treasurer and manager; that the contracts sued on were made since W. D.’s death; that the business debts outstanding at W. D.'s death were paid out of the same; and that all these facts except the last were known to the plaintiffs. The counsel then added, that the plaintiffs were aware that the defendants’ evidence would tend to prove that, by agreement of the executors, S. F. D. took the business, assuming the liabilities and taking the assets, and earned it on as his own; that this evidence the plaintiffs might not be able to control, but did not admit; and that they claimed the right to hold the defendants on the facts stated, unaffected by such private arrangement. Held, that the counsel’s reference to the defendants’ case did not import an admission of the facts referred to, and that the plaintiffs were entitled to go to the jury.</p>

Appeal, by Alice M. Fay, from a decree of the Probate Court that the omission of her father, Frederick C. Vanderford, to provide for her in his will was intentional, and was not occasioned by accident or mistake. At the trial in this court, before Holmes, J., upon the issue framed and submitted to a jury, whether such omission to provide for the appellant was intentional or whether it was occasioned by accident or mistake, the jury answered that it was not intentional.

<p>Contract, against the administratrix with the will annexed of the estate of George Patridge, to recover $810 for personal services rendered by the plaintiff to the testator as a housekeeper. The answer contained a general denial, and set up an accord and satisfaction by a gift to the plaintiff in the testator’s will.</p> <p>At the trial in the Superior Court, before Staples, J., there was evidence that the plaintiff rendered the services in question to the testator from March, 1883, to the date of the testator’s death, on August 12,1886, receiving from him in his lifetime no pay therefor beyond two small sums of money ; that the testator, by his will, which was dated August 6, 1886, and- of which Dr. Charles H. Davis and Sarah A. Williams were two of the attesting witnesses, gave to the plaintiff certain real estate, which she had sold for $8,000; and that the plaintiff knew before the testator’s death that he intended to give her this real estate in his will.</p> <p>The defendant called Dr. Davis, who testified that he “ was present when George Patridge’s will was made,” and, against the plaintiff’s objection, was permitted to testify that the said George, when the will was being written, said that he wanted the plaintiff to have the house, because she had always been kind to him and faithful, and done the right thing for him, and that would be in compensation for what she had done. He did not remember that the plaintiff was in the room when this was said, but had the “ impression ” that she was; that she was about the house, in the room or near it.</p> <p>Sarah A. Williams, called by the defendant, was permitted to testify, against the plaintiff’s objection, that she “ was present when George Patridge executed his will”; that the plaintiff was not present; that Micajah, his brother, said to George, “ You want to leave the house to Rebekah, because she has done so much for you?” and George nodded his head, and mumbled, “Yes.”</p> <p>The judge refused to rulé, as requested by the plaintiff, that there was no evidence of satisfaction of the plaintiff’s claim, and instructed the jury that, if it was understood and intended by and between the plaintiff and George Patridge that the provision made for her in the will should be and should operate as compensation for her services, and the same was so accepted by her when the will became effectual, then she cannot now claim any further compensation; and that the evidence of Dr. Davis was not competent, upon the question of an agreement between George Patridge and the plaintiff, if they should find that the plaintiff was not present at the time of the conversation recalled by him.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract, brought by Drayton Hillyer, Henry C. Dwight, and William C. Skinner, doing business as Dwight, Skinner, and Company, upon a promissory note for $32,150.46, dated March 26, 1889, payable to the order of that firm and signed by the defendants, Mary W. Dickinson and George Stuart Dickinson. At the trial in the Superior Court, before Aldrich, J., the defences relied on were, (1) that the defendants were induced to give the note by the fraudulent representations of the plaintiffs that the indebtedness of Samuel F. Dickinson, the son and brother of the defendants respectively, who was in financial straits, was insignificant beyond what was due to their firm and covered by the note, and that the giving of the note by the defendants would substantially relieve him from his embarrassment and enable him easily to resume business, whereas Samuel F. Dickinson at the time owed from $65,000 to $75,000, and was hopelessly insolvent ; (2) that the plaintiffs at the same time, and as part of the same transaction, promised to take back certain wool sold by them to Samuel F. Dickinson for use in his business, which was still on hand and unmanufactured, and thereby reduce the amount which would be due to their firm from the defendants upon the note, but that the plaintiffs did not intend to take back such wool, and intended at the time not to fulfil their promise.</p> <p>The judge refused to rule, as requested by the plaintiffs, that there was no evidence for the jury upon these issues, and submitted the case to them.</p> <p>The jury returned a verdict for the defendants, based upon the first issue; and the plaintiff alleged exceptions. The nature of the evidence appears in the opinion.</p>

<p>Certiorari— County Commissioners — Discontinuance of Way over Railroad.</p> <p>The owner of land intersected by a railroad and abutting upon a highway crossing the same, who has no title within the railroad location and whose land at a point very near the highway is connected by a private crossing, is not entitled to maintain a petition for a writ of certiorari to quash the proceedings of county commissioners in discontinuing so much of the highway as crossed the location, although, by reason of the proximity of his house and land to the railroad, he has occasion to use the highway over the railroad oftener than that portion of the public who are farther off.</p>

<p>City — Sckoolhouse Lot — Encroachment of Wall — Nuisance.</p> <p>If a city, in adapting a lot of land to schoolhouse purposes, builds and maintains a retaining wall between the lot and land of an adjoining owner, and, by the action of the elements or otherwise, without his fault, the wall comes upon his land and continues there, it becomes a nuisance for which the city is responsible to such owner.</p>

<p>Nuisance — Prescription — Findings of Jury.</p> <p>In an action for a nuisance, namely, the use and operation of a steam hammer near the plaintiff’s house, two questions were put to the jury: first, whether the defendant had acquired a prescriptive right; secondly, whether the hammer was a nuisance; and they were instructed, in addition to certain rulings as to the acquisition of such a right by prescription, that they would have no occasion to consider prescription unless they first found that the hammer was a nuisance entitling the plaintiff to damages. The first question was answered in the affirmative, the second in the negative. Held., that the finding that the hammer was not a nuisance made the rulings as to prescription immaterial.</p>

Libel, filed by Hugh Franklin, for a divorce from Delia M. Franklin, on the ground of adultery.

<p>Contract, for money had and received, to recover the rents and profits of real estate situated in Rhode Island, and held in trust by the defendant for the plaintiff. Writ dated March 22, 1886. Trial in the Superior Court, at the December sitting of 1890, before Staples, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The defendant offered evidence, which was not controverted, that the plaintiff brought a bill in équity, in the Supreme Court of Rhode Island, against this defendant, on December 9, 1884, alleging that the defendant had, since 1852, held the legal title to certain real estate in Providence, in trust for the plaintiff during the plaintiff’s absence in California, and had meanwhile received the rents and profits of the same, and praying that the estate might be decreed to belong to the plaintiff, and that the defendant be ordered to convey the estate to the plaintiff and to account to him for the rents and profits, and pay over the same; that the defendant appeared in that suit, and filed an answer therein; that, after due proceedings had, that court entered a final decree, on August 17, 1889, in which said real estate was decreed to be the property of the plaintiff, and the defendant was ordered to pay to the plaintiff, within sixty days, the sum of $6,820.69 and costs, which amount included the rents and profits up to the time of the decree; that no part of this sum had been paid, and no security therefor had been given; and that the defendant had no property in Rhode Island, and that he had never been a resident of that State.</p> <p>It was admitted that the rents and profits sought to be recovered in this action were of the estate referred to in the suit in equity, and the same rents and profits which were the subject of that suit; and that the decree in that suit was for the balance of all the rents and profits which were chargeable to the defendant, during all the time covered by this suit, after deducting all credits which the defendant was able to prove in the suit in equity.</p> <p>Evidence was admitted, against the plaintiff’s objection, that another action between the parties was pending at the time of the trial in the Superior Court, upon the Rhode Island decree, for the payment of said sum found therein to be due the plaintiff, which action was begun in November, 1889.</p> <p>The judge ruled that the decree in equity was a judgment which constituted a defence to this suit, and directed a nonsuit. If the rulings were correct, judgment was to be entered on the nonsuit; otherwise, a new trial was to be granted.</p>

<p>Exceptions — Waiver — Defect in Highway — Implied Notice — Reasonable. Diligence.</p> <p>A question not raised in the court below is not open on a bill of exceptions; and if raised and not argued, the excepting party will be deemed to have waived it. A statement by the plaintiff, in an action for personal injuries, to his physician as to his symptoms at the time, if made for the purpose of medical treatment and advice, is admissible in his favor, although the interview was only a day or two before, or possibly during the trial.</p> <p>In an action for personal injuries caused by a defect in a highway which the defendant city was bound to keep in repair, it appeared in evidence that the accident was caused by a washout due to the escape of water from a sewer-pipe laid in the way five years before; that this pipe, from its composition and the nature of the soil, was likely to last from three to ten years only, as the defendant's superintendent of streets was informed at the time; that within four or five months of the accident a depression in the surface of the way about fifty feet distant was filled by the defendant without further examination, and within a fortnight a washout had occurred about twenty feet distant, and the city dug down there and replaced all the pipe which appeared to be defective, and examined the projecting ends of what was left and found them all right, but made no further examination; and that upon taking up the pipe after the accident it was found to be in bad condition and full of holes. Held, that it was a question for the jury whether the defendant did or did not exercise reasonable care and diligence in preventing the defect which caused the accident to the plaintiff ; and that the case was properly submitted to them.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by being struck by a locomotive engine at a crossing at grade of the defendant’s railroad and a highway in Westfield. At the trial in the Superior Court, iDewey, J., at the close of the evidence, refused to rule, as requested by the defendant, (1) that “ upon all the evidence in the case the plaintiff cannot recover,” (2) that “ the plaintiff was grossly negligent, and such negligence contributed to her injury,” and (3) that “ there is no sufficient evidence to warrant the jury in finding that the plaintiff was not grossly negligent, or that her negligence did not contribute to the injury ”; and submitted the case to the jury upon instructions, to which no exception was taken.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The nature of the evidence appears in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ as a brakeman in its freight-yard at Holyoke.</p> <p>At the trial in the Superior Court, before Barker, J., the plaintiff testified that on December 23,1889, he was in the employ of the defendant as a brakeman, and for two or three months before that time had worked in its Holyoke yard, and was familiar with the same, and with the position, construction, and working of the various switches therein situated; that during the forenoon of that day he was engaged in assisting to make up a freight train, of which one Campbell was the conductor; that two box cars were to be cut off from the train, and Campbell told him to uncouple them; that he then went between the two cars and within the rails to uncouple them, and walked along between the cars; that the cars were going slowly, and a man could keep up with them without walking very fast, but the speed was increasing as it was down grade ; that the coupling-pin stuck when he tried to pull it out, and he asked Campbell, who was on the top of the forward one of the two cars, to set up the brakes and relieve the pressure on the pin; that as the car slackened he felt his foot go into a hole under a switch rod connected with one of the switches beside the track; that, failing to get his foot out by pushing it with the other foot, he threw himself out from between the cars, and, the wheels passing over his leg which remained fast, he was injured ; that some of the brakemen in uncoupling cars reached in between them from a position outside the rails, and others stepped in between the rails; that he was accustomed to go between the cars; that it was just as safe to pull the pin when between the rails as outside of them, and might be safer; and that he had worked over and about this switch during the time he was in the yard, and had never-noticed any hole there.</p> <p>There was also evidence that the switch to which the rod was attached under which the plaintiff’s foot was caught was called a stub switch, and was not of a modern pattern, but was similar to other switches used in that freight-yard; that this rod, by which the rails were moved, extended across the track, being clamped to the under side of each rail; that the rod was placed over the soil of the road-bed and between two of the ties ; that it was necessary to leave a space under the rod for the purpose of- beeping it free from snow and ice, the smallest space practicable being half an inch, and the usual space about two inches; that the distance of this rod from the edge of the tie where the plaintiff’s foot slipped under it was five and a half inches, and from the bottom of the rod to the soil directly under it was the same distance ; that the formation of the land at this point was such that surface water accumulated on one side of the track; that the hole under the rod was scooped out between the ties, and had been there about a week, and sloped from one rail to the other, and looked as if it had been dug out for a drain to carry off the water thus accumulating; and that after the accident the depth of this depression under the rod was reduced to a depth of one and a half inches, so that a man’s foot could not slip under the rod.</p> <p>The defendant’s yardmaster testified that it was not necessary for a brakeman to go between the rails in pulling a coupling-pin, and that he never did it himself ; that there was no difficulty in reaching in to draw the pin from outside the track, though brakemen frequently went between the rails for that purpose; and that (but in this he was contradicted by the plaintiff) he had had occasion to speak to the plaintiff about going in between the rails for that purpose, and had told him on the day of the accident, and before it happened, that he did not wish to see him do it again.</p> <p>The defendant asked the judge to rule as follows: (1) “ That upon all the evidence the plaintiff cannot recover ” ; (2) “ If the jury find that the plaintiff had been informed by the yardmaster that it was unsafe to go between the tracks, and directed him to keep out from between them, he cannot recover for any injury received while going between the tracks, it not appearing that it was necessary for him to do so ”; and (3) “ If the jury find that, on going between the cars and rails to remove the pin, plaintiff found that he could not draw the pin, and continued to walk between the cars and between the tracks, until the brakeman should apply the brake so as to give him slack, and was injured while so walking, he was not in the exercise of due care, and cannot recover.”</p> <p>The judge refused so to rule, and submitted the case to the jury upon the questions whether the defendant was negligent and the plaintiff was in the exercise of due care, instructing them, among other things, that if the plaintiff found he was exposed to a danger to which he ought not to have been exposed, and, knowing and realizing the same, he continued in the defendant’s employment, then he was to be held to have accepted the additional risk which he need not to have accepted unless he saw fit, and could not recover for any injury resulting therefrom; and that if he knew that there was a dangerous place in the track, and understood there was an arrangement which might catch his foot if he went between the rails and walked there with one car in front of him and one behind him, without its being his duty to do so, then he could not recover, because he was incurring a known danger, and not in the exercise of his duty.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Weit oe entry, dated December 7,1886, to recover a parcel of land on Fruit Street in Worcester. After the former decision, reported in 147 Mass. 613, the action at law was changed in the Superior Court to a suit in equity.

<p>Husband and Wife — Estate in Entirety— Conveyance of Husband’s Interest to Wife.</p> <p>Where an estate is held by a husband and wife in entirety, he may make a valid conveyance of his interest to his wife, through a third person.</p>

<p>Personal Injuries—Owner of Building — Lease — Furnishing Steam Power by Appliances on Leased Premises — Negligence — Due Care — Proximate Cause — Evidence.</p> <p>If the owner of a building, who is engaged in furnishing for hire steam power to adjoining buildings, after leasing a part of his building, continues thus to furnish power by means of appliances upon the leased premises, he is bound to exercise reasonable care to see that such appliances are in suitable condition to perform the work without danger to persons rightfully on the premises and themselves in the exercise of due care; and if he, or his servants or agents, are negligent in the use or management of such appliances, such a person in the employ of Ills lessee, who is injured thereby while in the exercise of due care, is entitled to recover of him for the injuries so sustained, irrespective of the lease or of any duty of the lessee under it to care for such appliances.</p> <p>On the issue whether the owner of a building engaged in furnishing steam power for hire to adjoining buildings used ordinary prudence and'care in the use and operation of certain shafting and pulleys for that purpose, evidence is competent that a shaft which broke and injured a person rightfully on the premises, was not sufficiently supported and should have had an additional hanger, that shelving underneath it would have tended to afford protection and was often placed under shafts similarly hung, and that safety would have been promoted by a larger shaft.</p> <p>Under a declaration, in an action for personal injuries, alleging that the plaintiff was injured by a fall of a shaft through the “negligence and carelessness of the defendant,” evidence is admissible that a subsequent examination of the broken ends of the shaft disclosed dark streaks extending from one third to one half way around it, as though there had been a flaw or a previous crack in it.</p> <p>On the issue whether the owner of a building engaged in furnishing for hire steam power to an adjoining building, after leasing rooms in the building, used and exercised control over shafting and belting situated in such rooms, evidence is competent that, after an accident resulting from the breaking and fall of a shaft in the room, he repaired a stairway therein damaged by the fall, and caused a belt also therein to be sheathed, and evidence is also competent that his engineer continued to oil the shaft until it fell, and to lace the belts thereon when necessary, although the lease is already in evidence.</p> <p>If the owner of a building, after leasing a part thereof, negligently continues to furnish power to an adjoining building by the use of improper appliances on the leased premises, and one of his lessee’s employees is injured, the failure of such lessee or of his other employees to give to the employee injured any warning of the danger, does not constitute negligence, or a want of due care, on the part of such employee, or relieve such owner from the consequence of his own carelessness or of that of his servants.</p> <p>On the issue whether the plaintiff, who was employed in a printing establishment and was injured by the fall of a shaft hung over a stairway connecting the fourth and fifth floors of the same, was in the exercise of due care, there was evidence that the plaintiff was a type-setter and worked on the fourth floor, and it was her duty to carry galleys of type to the fifth floor; that she remembered starting to go up the stairway with a galley of type, but nothing more until she found herself in the hospital; that a foreman, after sending a boy to the engineer to notify him that something was wrong, a few seconds before the shaft fell, called out from the top of the stairway to keep off the same; and that several other employees noticed that the shaft was out of order shortly before it fell, and some of them working near the plaintiff heard the foreman tell the boy to warn the engineer. It did not appear that the plaintiff’s attention was called by any one to the condition of the shaft, or that she heard any remark about it. Held, that the evidence was sufficient to enable the jury to pass fairly upon the question of due care on the plaintiff’s part, and that it was properly left to them to do so.</p>

<p>Andover Theological Seminary — Visitors — Board of Trustees.</p> <p>While under the original act (St. 1780, c. 15) incorporating the “Trustees of Phillips Academy at Andover,” the trustees are constituted the sole visitors of the corporation, it is not inconsistent with the design of the founders of the Academy that such trustees should accept and manage, under the authority of a legislative act (St. 1807, c. 22), donations for a different but kindred purpose, and permit supervision of their conduct in this department by a board of visitors appointed by the donors.</p> <p>The visitors of the Andover Theological Seminary, in taking original proceedings to remove a professor therein charged with teaching erroneous doctrines, act in a strictly visitatorial capacity, and the board of trustees of that institution are entitled, if they so desire, to be made a formal party to such proceedings, and to have an opportunity to be heard. (Field, C. J., dissenting.)</p>

<p>Bill in equity, filed in the Superior Court, to enforce an agreement entered into on April 3,1888, between the defendant, described as of Montgomery, as the party of the first part, and Charles N. Stimpson, as the party of the second part, as follows: “ The party of the first part hereby agrees to sell, and the party of the second part to purchase, a certain estate, situate in said Montgomery, and bounded as follows, to wit, [here followed a description of the estate in question,] and contains about seven eighths of an acre, buildings thereon also included. Party of second part to have possession of said premises May 1st next, and to pay party of first part the sum of six hundred dollars for said described premises; and of said sum has paid fifty dollars down, and agrees to pay the sum of fifty dollars on the first day of May next, and one hundred dollars annually thereafter, till the whole sum is paid, with interest annually on the whole sum unpaid. Party of first part to keep said premises insured for the benefit of party of second part, as his interest may appear ; and if party of second part leaves the house vacant at any time, he is to pay for all extra insurance, and party of second part to pay all taxes assessed on said premises. Upon the payment of all sums that shall be due, with interest as aforesaid, the party of first part hereby agrees to convey the above described premises to the said Stimpson, his heirs or assigns, by good and sufficient deed of warranty in usual form, free of all incumbrances. This agreement is a duplicate.”</p> <p>The bill alleged that, on April 3, 1888, Stimpson paid the defendant, pursuant to the above agreement, the sum of fifty dollars, and on May 1 following the further sum of fifty dollars; and on the date last named entered into possession of the premises described in the agreement; that after Stimpson had made improvements on the buildings during that and the following month to the value of one hundred dollars, the buildings were totally destroyed by fire on June 18, 1888, being then valued, as on April 3, 1888, at eight hundred dollars; that on March 4, 1889, Stimpson duly assigned his rights in the agreement to the plaintiff, who herself entered into possession of the premises ; that the defendant had refused on demand to pay, first to Stimpson and then to the plaintiff, the difference between that sum and what was due the defendant from Stimpson, or to convey the land to either; that before April 3,1888, the defendant had insured the buildings for eight hundred dollars, for his own benefit, for a term ending in 1891, of which Stimpson was informed when the agreement was made; that Stimpson and the plaintiff had paid all the taxes assessed on the premises since the agreement was made; and that immediately after the fire the defendant, without consulting with Stimpson and without his knowledge, adjusted the loss with the insurance company, and accepted from it as full indemnity the sum of six hundred dollars, and surrendered the policy to the company.</p> <p>The prayer of the bill was that the defendant might be ordered to execute and deliver to the plaintiff a good and sufficient warranty deed of the land free of incumbrances, and to pay to her so much of said sum of eight hundred dollars as was not needed to discharge Stimpson’s obligations to the defendant under the agreement.</p> <p>At the hearing, before Maynard, J., it was admitted, in addition to the facts set out in the bill, that the defendant before the assignment by Stimpson tendered to him the difference between what Stimpson owed the defendant and the amount of the insurance received by the defendant, which Stimpson refused to accept, but demanded the sum of two hundred dollars in addition thereto, and a deed of the land. It was admitted that the buildings made up the chief value of the premises, and that the land after the fire was only worth about fifty dollars. The judge found that, when the agreement was entered into, it was understood by the parties thereto that the insurance of eight hundred dollars already procured by the defendant sufficiently fulfilled the defendant’s agreement to keep the buildings insured for the benefit of Stimpson.</p> <p>The judge ordered a decree to be entered for the plaintiff, as indemnity for the loss of the buildings, not exceeding the sum of eight hundred dollars, less the balance of the purchase money due the defendant under the agreement, with interest; and the defendant appealed to this court.</p>

<p>A doption—Fraud — Probate Court — Appeal — Next of Kin — Laches — Practice — Amendment.</p> <p>An appeal lies, under the Pub. Sts. c. 156, § 6, from a decision of the Probate Court dismissing a petition to revoke a decree of adoption on the ground of fraud practised on the court.</p> <p>The next of kin of an adopting parent, who but for the adoption would be his heirs at law, may petition the Probate Court to annul the decree of adoption on the ground of fraud.</p> <p>Laches will not be imputed to non-resident next of kin of an adopting parent, who, upon discovering after such parent’s death that the decree of adoption was procured by the fraud of the adopted child, petitioned the Probate Court within a few months thereafter to revoke the decree, in the absence of anything to put them upon the inquiry earlier, or to show that the delay has operated to such child’s prejudice.</p> <p>A petition to the Probate Court to annul a decree of adoption, brought by the next of kin of the adopting parent, who but for the adoption would be his heirs at law, alleged that the adopting parent, being at the time of unsound mind and under the undue influence of the respondent, was induced by means of such unsoundness and the undue influence and fraud of the respondent to apply for the respondent’s adoption, and to concur in the proceedings; that these facts were suppressed by the respondent and concealed from the court; and that the decree was procured by lfieans of the fraud thus practised upon the court. Held, that the petition, upon the addition of an averment that such parent left property, but no valid will, would state a case calling for the interposition of the court.</p>

<p>Bill in equity, filed in the Superior Court on September 5, 1889, to prevent the defendant from maintaining a dam across a creek flowing into Cataumet Harbor in Falmouth, in the county of Barnstable, and from flowing the plaintiffs’ land. Hearing before Mason, J., who ordered the bill to be dismissed. and, after an appeal had been taken by the plaintiffs to this court, made the following report of the facts.</p> <p>The plaintiffs were the owners of about three fourths of an acre of marsh land adjoining the creek above referred to; and the defendant had built the dam across the creek in question, under the provisions of the St. of 1889, c. 383,* and by the license of the board of harbor and land commissioners, so as to flow about sixty acres of his own land and that of the plaintiffs, so that they were deprived of the use of it. The dam was partially constructed, and the plaintiffs’ land appreciably flowed, but no substantial damage was done before the passage of that statute.</p> <p>This dam was erected and is maintained for the purpose of creating and raising a pond for the culture of useful fishes, and the pond raised by the dam is well stocked with trout. The immediate purpose or intention of the defendant and those interested with him was not to perform a public service, but to engage in the culture of useful fishes for their own personal pleasure and profit, and the pleasure and profit of particular persons to whom they should sell rights to fish in the pond. It was not their purpose to supply the market with such fishes, nor to supply them to the public by any means, direct or indirect. The land of the plaintiffs had small market value for any use to which it could be applied other than that for which it is now used by means of the defendant’s dam. There was at the time of the passage of the act, and is now, much land in Barnstable County similarly situated, having small market value for any purpose to which it can be applied by its separate owners, which would be enhanced in value if it were shown by successful experiment that such land could be profitably used for the cultivation of useful fishes under the powers conferred by the act.</p> <p>The case was argued at the bar in March, 1891, and after-wards, in September, was submitted on the briefs to all the judges.</p>

<p>Contract to recover double the expense of building a division fence and the fence viewers’ fees. The case was submitted to the Superior Court on the following agreed statement of facts.</p> <p>The record title to a lot of land in Bluff Street in Worcester stood in the joint name of the defendants, who were man and wife, without the knowledge or consent of the wife, who had no actual use, occupation, or ownership in the estate. The defendants’ lot had not been enclosed, and was not improved by them, except that it was leased to third parties for the storing of carts and trucking material thereon. The plaintiff, who was the owner of an adjoining lot, and was improving the same by building thereon, requested the defendants to build a division fence with him at the equal expense of both, and the defendants refused. The plaintiff then called in the fence viewers, and they duly adjudged a fence necessary, and directed it to be built, and, upon the defendants’ failing to carry out the order of the fence viewers, the plaintiff built the entire length of the fence.</p> <p>Aldrich, J. ordered judgment for the plaintiff against the defendant husband and in favor of the wife; and the husband appealed to this court.</p>

<p>Petition, under the Pub. Sts. c. 191, to enforce a mechanic’s lien. At the trial in the Superior Court, without a jury, before Aldrich, J., it was admitted that a sub-contract to do mason-work and furnish labor and material, entered into by the petitioner with a contractor with the defendant city to build a schoolhouse, was an entire contract for the entire price of over $13,000; and that a balance of $794.50, claimed by the petitioner for labor only, was still due him, and was less in amount than the value of the labor performed or furnished by him in carrying out his sub-contract. The only question was whether the statement filed by the petitioner in the registry of deeds respecting the labor performed by him was sufficient. This statement, after stating the nature of the contract and the entire amount due under the same, with sundry credits, and disclosing the balance due him of $794.50, contained the following:</p> <p>“ The sum of $5,223^^, is the worth of the labor performed and furnished, as per the-schedule of items hereto annexed:</p> <p>" To labor by the following men, between September 2d, 1889, and May 1st, 1890.</p> <p>“ Hunt, 11 hours, @ 38§ per h. $4.27. [Here followed many similar items, amounting with the first item to $4,048.19.] “ Labor of myself, between Sept. 1st, 1889, and May 1st, 1890, 900.00 “ Labor laying 1100 yds. concreting, @ 25c. pr. yard, in the last part of August, 1890, and ending August 30th, 1890, 275.00 $5,223.19”</p> <p>The petitioner asked the judge to rule that the recital in the statement, filed by the petitioner in the registry of deeds, of the item of labor performed or furnished by him, although stated in hours instead of days, was a sufficient compliance with the requirements of § 6 of the Pub. Sts. c. 191, which requires that “ the number of days of labor performed or furnished, and the value of the same, shall also be stated.” The judge refused so to rule, but ruled that the statement was insufficient in not giving the number of days of labor performed or furnished, and in giving the time of a portion of the labor in hours, and of another portion of the labor no item either in hours or days, and that the petitioner’s lien was not established; and found for the respondent. The petitioner alleged exceptions.</p>

<p>Oral Promise— Consideration of Marriage — Statute of Frauds — Memorandum.</p> <p>A bill in equity was brought by the plaintiff, as “administrator of the estate” of his deceased wife, for his own benefit as her husband, to recover property conveyed by her while alive to the defendant for distribution at her death. The plaintiff relied on her oral promise, made to induce him to marry her, that it should at her death belong to him and his son E., and upon the unsigned fragment of a letter from her, setting forth; “ All I have will be yours and E.’s when I have done with it, but I must hold it while I live. . . . Do not feel that there is any change in my feelings towards you; indeed, am more attached to you now than ever, but it is best for us to decide as we can hold out.” The bill set out the fragment alone, alleging that the rest was lost. Held, that the ante-nuptial contract relied on was within the statute of frauds, and the written memorandum was not sufficient to satisfy the statute. Held, also, that if the bill was to be construed as seeking to obtain the property not only for the plaintiff’s own benefit, but also as assets of his wife’s estate, it was clearly bad for multifariousness.</p>

Petition, filed in the Superior Court, for the termination of a trust. The case was heard by Barher, J., and was as follows.

<p>Intoxicating Liquors — Common Nuisance — Evidence for Jury.</p> <p>At the trial of an indictment on the Pub. Sts. c. 101, §§ 6,7, for keeping a common nuisance, to wit, a tenement used for the illegal sale and keeping of intoxicating liquors, there was evidence that the defendant had a bottling establishment at the place in question, and was also an expressman; that a keg such as beer came in had been found on the premises; that cases of empty bottles were unloaded from his team there, and were replaced by what seemed to be full bottles, and deliveries made therefrom, especially in the night-time; that the driver had been seen to deliver a case of lager beer at a house near by; and that the defendant had said that the beer delivered by him was bottled in another town. Held, that the evidence was sufficient to warrant a conviction.</p>

<p>Tobt, for personal injuries occasioned to the plaintiff, a girl between eighteen and nineteen years of age, by stepping into an open register hole in the defendant’s store.</p> <p>At the trial in the Superior Court, before Hammond, J., there was evidence that the register hole was in the floor of the store, and was about eighteen inches in diameter; that this hole ordinarily was closed by an iron grating, and was nearly opposite and about a foot in front of the end of a showcase about ten feet long, and at the end of the store farthest from the entrance door; that on the morning of the accident the grating had been removed for the purpose of cleaning it, and was returned to its place in about twenty minutes; that meanwhile the plaintiff called at the store twice; that in the showcase nearly opposite the hole were certain articles which the plaintiff at her first visit looked at and asked the price of from a clerk; that the store was well lighted, and the register hole was in the line of any person entering at the door by which the plaintiff entered, and could easily be seen by persons entering the store; and that the defendant had directed a clerk to warn all persons entering the store to look out for the hole. The defendant and the clerk both testified that the clerk seasonably warned all persons, including the plaintiff, to look out for the hole. The clerk testified that he warned the plaintiff on the occasion of her first visit to beware of the hole, and that the plaintiff then looked at it. The plaintiff testified that she did not hear the clerk’s warning or see the hole, and that a warning given her by the clerk at the time of her second visit came too late to prevent her from stepping into the hole; that at her second visit she entered the store, placed her hand on the showcase, and so walked up the store, looking at the articles in the showcase, and that her attention was wholly given to them ; that she did not look in front of her to see where she was going, and that if she had so looked the accident would not have happened.</p> <p>The defendant asked the judge to rule that the plaintiff’s action could not be maintained on the evidence; but the judge refused so to rule, and submitted the case to the jury, with instructions to which no exception was taken.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>The following order was passed by the Governor and Council on December 16, 1891, and transmitted to the Justices of the Supreme Judicial Court, who, on December 31, 1891, returned the answer which' is subjoined.</p>