Volume 155 — Massachusetts Reports

<p>Personal Injuries—Employers’ Liability Act — Notice—Dependency.</p> <p>The notice required by the St. of 1887, c. 270, § 3, as amended by the St. of 1888, c. 155, to support an action against an employer for the instantaneous death of an employee, may be given by some one in his behalf within thirty days from the occurrence of the accident, or by the executor or administrator within thirty days after his appointment.</p> <p>If an unmarried employee, who is instantly killed, leaves as his sole next of kin a brother not dependent upon him and a sister who is dependent, an action against the employer to recover for the death, under the St. of 1887, c. 270, § 2, should properly be brought in her name alone.</p> <p>Under the St. of 1887, c. 270, § 2, giving a right of action against an employer for the instantaneous death of an employee who leaves i>o widow, to the “ next of kin . . . dependent upon the wages of such employee for support," such next of kin, in order to establish a dependency, need not come within the class of persons whom the deceased, if able, was legally bound to support; the fact of dependence is sufficient.</p> <p>An invalid sister unable to work regularly, or to earn enough to pay her doctor’s bills, who has received from a brother on an average from thirty to thirty-five dollars a month for three or four years, and who in fact receives her support from him and is dependent upon him for support, comes within the meaning of the St. of 1887, c. 270, § 2, and may maintain an action against his employer for causing his instantaneous death.</p>

<p>Intoxicating Liquors— Complaint and Warrant—Justice of ike Peace—Name.</p> <p>A justice of the peace, designated and commissioned under the Pub. Sts. c. 155, § 4, and the St. of 1884, c. 286, with authority to issue warrants in criminal cases, may lawfully receive the complaints upon which such warrants are issued.</p> <p>If a complaint is addressed to “ George G. W., justice of the peace, . . . designated and commissioned to issue warrants in criminal cases,” and the jurat is signed “ Geo. G. W., justice of the peace authorized to issue warrants as aforesaid,” the abbreviated name may be assumed to stand for George, and the description following the same refers back to the caption of the complaint, and is sufficient.</p>

<p>Complaint on the Pub. Sts. e. 101, §§ 6, 7, for keeping and. maintaining a common nuisance, to wit, a tenement at Taunton used for the illegal sale and illegal keeping of intoxicating liquors between June 1,1890, and August 14,1890.</p> <p>At the trial in the Superior Court, before Hammond, J., there was evidence that, on August 10,11, and 18, one Michael Lucy visited the tenement in question, where the defendant lived with his wife, and there purchased intoxicating liquors from the defendant’s wife; and that Lucy did not see the defendant on either occasion. The defendant testified that he formerly had a license to sell intoxicating liquors in a store connected with his tenement, but the license expired in 1889, and since that time he had not sold any intoxicating liquors himself nor authorized any one to sell for him; that in his own tenement, so far as he knew, no such liquor had been kept or sold; that he went to New York on August 1,1890, and there remained until August 14; that he had no knowledge of the sales testified to; and that if his wife had sold it at any time it was against his wishes, knowledge, or consent.</p> <p>The defendant requested the judge to instruct the jury that the evidence was not sufficient to warrant a conviction ; but the judge refused so to rule, and submitted the case to the jury.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Complaint on the Pub. Sts. c. 100, § 17, for unlawfully bringing intoxicating liquors into Westport, on March 7,1891, with intent unlawfully to sell the same therein. Trial in the Superior Court, on appeal, before Braley, J., who, after a verdict of guilty, reported the case for the determination of this court. The case, so far as material to the point decided, appears in the opinion.</p>

<p>Tort. The first count was for the conversion of a sailboat, and its tackle and furniture, with four scallop dredges and five bushels of scallops, alleged to belong to the plaintiff, and to be of the value of six hundred dollars. The second count was for unlawfully seizing the boat and the other property described in the first count, and detaining the same, by which the plaintiff, a fisherman, was deprived of the means of supporting himself and family; all of which was alleged to have been done by the defendant maliciously, and with the intent to injure the plaintiff. The third count was for arrest and false imprisonment.</p> <p>At the trial in the Superior Court, before Pitman, J., there was evidence that the plaintiff was an inhabitant of the city of New Bedford, and on October 26, 1888, was engaged in taking scallops from their beds within the waters of the town of Fair-haven without a written permit from the selectmen of that town; that the defendant, a constable of that town duly designated by the selectmen under the St. of 1885, c. 220, § 6, to detect and prosecute any violations of the shell-fishery laws within the town, arrested the plaintiff as he was thus engaged, and seized his boat and tackle and other property therein for such violation; that afterwards, within twenty-four hours, the defendant caused the plaintiff to be confined for three or four hours in a police station at New Bedford, and made a complaint to a district court against him for a violation of the regulations of the selectmen of Fair-haven relative to the taking of scallops, and swore out a warrant against him; that the plaintiff was duly convicted and sentenced in the district court, and appealed therefrom to the Superior Court, which ordered a verdict of not guilty, on the ground that the regulations were invalid, and that the plaintiff had not violated any law of the Commonwealth; that, within fourteen days from the seizure of the boat and such other property, the defendant duly filed a libel in the Superior Court against the same, and the plaintiff duly appeared in such libel proceedings, and filed an answer and claimed the property, which libel was still pending and had never been determined; and that the boat and such other property exceeded in value the sum of one hundred dollars, and were the articles alleged to be converted in the first and second counts in the declaration in this action. The uncontradicted evidence was that the plaintiff was taking such scallops for his own family’s use.</p> <p>The defendant asked the judge to rule that the pendency undetermined of such libel was a bar to the maintenance by the plaintiff of his action on the first and second counts of his declaration ; and that the plaintiff was at the time of his arrest engaged in taking scallops within the waters of such town illegally. The judge declined so to rule, but ruled that the pendency of the libel was no bar to the maintenance of the action on the first and second counts of the declaration, and that the plaintiff was not illegally taking such scallops if he was taking the same for his own family’s use.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in November, 1890, and after-wards, in June, 1891, was submitted on the briefs to all the judges except Lathrop and Barker, JJ.</p>

<p>Railroad— Crossing of Highway — Drainage — County Commissioners.</p> <p>If a railroad company constructs its railroad across an existing highway, and the provision made at the outset by order of the county commissioners for draining the way after a time becomes ineffective, the county commissioners have the power, under the Pub. Sts. c. 112, §§ 135, 136, to make a new order for the effectual drainage of the way at the expense of the company, and by proceedings in equity in this court to have the same enforced.</p>

<p>Personal Injuries — Railroad — Employers’ Liability Act — Ways, Works, or Machinery — Superintendence — Evidence of Custom.</p> <p>If a freight car, which is hauled empty by a railroad company to the terminus of its road for transfer to another road where it belongs, while being shifted there to another train upon a connecting line, causes an injury to a brakeman employed by such company by reason of a defect in the brake-wheel, such car is not a part of the “ ways, works, or machinery connected with or used in the business of the employer,” within the St. of 1887, c. 270, § 1, cl. 1, such as will give a right of action against the company.</p> <p>At tlie trial of an action under the St. of 1887, c. 270, § 1, cl. 2, against a railroad company for personal injuries occasioned to a brakeman in its employ at the terminus of the road by a defect in a freight car belonging to another corporation there being transferred to a connecting line for delivery to its owner, evidence was excluded that the train of which the car had formed a part was not inspected on its arrival at such terminus, and that, as matter of custom, no inspection was made there of cars coming from the direction from which such car had arrived. Held,, that the evidence should have been admitted.</p>

<p>Practice — Abatement — Deposition — Evidence — Promissory Note — Discharge of Indorser — New Promise.</p> <p>If an answer contains both an answer in abatement and an answer to the merits, and the former is overruled, a motion thereupon filed by the plaintiff for judgment is properly denied, and a trial properly had on the merits.</p> <p>If a deposition is put in evidence, and objection thereupon made to certain interrogatories therein on the ground of incompetency of the witness and of immateriality is overruled, and a report of the case does not give the answers or show that the deponent was not competent to testify upon the subject inquired of, or that his testimony was immaterial to the issue, it will be presumed that the state of the testimony authorized the presiding judge to find that the deponent was competent to testify, and that the evidence was material.</p> <p>At the trial of an action upon a promissory note payable to bearer, a letter from the payee’s executor to the plaintiff’s attorney authorizing him to bring an action on the note in the plaintiff’s name was held to be material, and competent evidence upon the issue whether the plaintiff was the bearer of the note.</p> <p>The presumption that a promissory note in the maker’s possession after the payee’s decease has been paid or surrendered is prima facie merely, and the question of its weight is one of fact upon which the finding of a judge, who tries an action brought on the note without a jury, is final.</p> <p>A promise to pay a promissory note by an indorser, who knows that he is discharged for want of notice of its dishonor, made in igorance of the fact that demand was not made upon the maker, is not binding upon such indorser.</p>

Petition to the Superior Court, under the St. of 1886, c. 331, § 2,* for a jury to assess damages caused by the taking by the respondent city of land of the petitioner.

<p>Abatement — Superior Court.</p> <p>Under the Pub. Sts. c. 152, § 10, and c. 153, § 8, the decision of a justice of the Superior Court upon a plea in abatement is final, and is not subject to revision in this court on exceptions or otherwise.</p>

Tort for personal injuries occasioned to the plaintiff. by-falling into a hole in the platform of a station belonging to a railroad leased by the defendant. The case was tried in the Superior Court, before Aldrich, •!., who ruled that there was no evidence for the jury, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. The nature of the evidence appears in the opinion.

Contract, for the alleged breach of an agreement by the defendant to sell and convey to the plaintiff certain real estate in the city of Worcester. Trial in the Superior Court, without a jury, before Aldrich, J., who found and ordered judgment for the defendant, and reported the case for the determination of this court. The case appears in the opinion.

Spooner, as administratrix of the estate of her late husband Walter Spooner, for a license to sell real estate for the payment of debts. The case was heard by Knowlton, J., who reported it for the consideration of the full court, in substance as follows.

<p>The first case was an indictment in four counts, the first count on the Pub. Sts. c. 101, §§ 6, 7, for keeping and maintaining a common nuisance, to wit, a tenement used for the illegal sale and illegal keeping of intoxicating liquors from May 1 to November 1, 1890; the second, third, and fourth counts were each for a single unlawful sale of such liquors within that period. The second and third cases were indictments in two and three counts respectively, the first count in each being similar to the first count in the first case, and the other counts in each being similar to the remaining counts in the first case. The cases were tried in the Superior Court, before Hammond, J., who after a verdict of guilty in each case, allowed exceptions in each, which, so far as material to the points decided, appear in the opinion.</p>

<p>Petition, filed May 3,1890, under the St. of 1882, c. 237,* to free the record title to real estate from the incumbrance of an undischarged mortgage. The case was heard by Knowlton, J., who reported it for the consideration of the full court, and was as follows.</p> <p>On April 23,1850, one Ames conveyed by an absolute deed, the consideration expressed being $2,000, to one Caldwell, his son in law, a tract of land in Easton. This deed was duly acknowledged by Ames on the same day, and was duly recorded on May 7 following. Also on the same day, and as part of the same transaction, Caldwell executed a bond to reconvey the land to Ames in three years on the payment of that amount, with interest. This bond was not recorded until March 15,1860, and was not acknowledged before a magistrate, unless by reason of its connection with the deed the acknowledgment of the deed authorized the register of deeds to treat it as an acknowledged instrument, and to record it as such. Ames remained in possession of the land until he died in 1873, and the year following his death his administrator duly sold the same to one Le Barron, and the proceeds, after payment of debts, were distributed among his heirs at law, the wife of Caldwell, who died before the filing of the bill, receiving her distributive share as such. From 1850 until about 1860 Caldwell lived within four miles from the land in question, and then removed from the Commonwealth, and died in 1873, two months before the death of Ames. Neither Caldwell nor any of his family lived on the land at any time after April 23, 1850, and there was no evidence that any of them ever claimed it; but it was proved that Ames, and those claiming under him, had been in undisturbed possession of it, under a claim of ownership, from that date to the filing of this petition.</p> <p>The petitioners claimed title under Le Barron, and sought to have the record title to the land freed from the incumbrance caused by the non-discharge of the deed and bond, which were alleged to constitute a mortgage. ' The respondents, who were children and heirs at law of Caldwell, were not residents of Massachusetts, and no service was made on them within this State; but they appeared specially and objected to the jurisdiction of the court.</p>

<p>Sale — Implied Warranty of Quality — Evidence.</p> <p>A commercial contract for the sale and delivery of a cargo of ice, which the purchaser has no opportunity to inspect, calls for a merchantable article of that name.</p> <p>At the trial of an action to recover for a cargo of ice sold by the plaintiff to the defendant, the plaintiff put in evidence tending to show that the defendant never notified him of any defect in the quality or condition of the ice until after the action was brought; and to meet this the defendant offered a notarial protest signed and sworn to by him the day the ice arrived. Held, that the protest was properly excluded.</p>

<p>Tort, for flowing the plaintiff’s cellar through a drain connecting with a common sewer in Acushnet Avenue in the defendant city. Trial in the Superior Court, before Hammond, J., who reported the case for the determination of this court, in substance as follows.</p> <p>There was evidence tending to show the following facts. The plaintiff’s premises were situated on Acushnet Avenue, in a section of the city drained by the Willis Street sewer system, so called, which it was admitted was the property of the city. Acushnet Avenue ran from north to south at the foot of a hill past the ends of Sycamore Street, Campbell Street, and Willis Street, all of which ran in an easterly direction down the hill, and were parallel with one another. The sewer in the avenue,' which was twenty-four inches in diameter, was laid therein at nearly a-flat grade, under an order of the city council passed in 1877, and discharged into a forty-eight inch sewer in Willis Street, which extended in an easterly direction across Acushnet Avenue into tide water. A sewer had been laid in Sycamore Street at an earlier period, which was connected with the Acushnet Avenue sewer when the latter was built, and which from a point at which a natural stream was turned into it to its connection with the Acushnet Avenue sewer was thirty-six inches in diameter. The flow from the Sycamore Street sewer was relieved by a fifteen-inch pipe running from the sewer in the avenue at a point opposite that street easterly into tide water. A twenty-four-inch sewer already built in Campbell Street was made to discharge into the Acushnet Avenue sewer after the latter was built. In April, 1888, the plaintiff duly applied for and obtained a permit to enter a private drain into the Acushnet Avenue sewer, and the connection was made by an employee of the defendant city, whose duty it was to do so, at a point about five inches from its bottom; and in so doing the plaintiff complied with the city ordinances and the regulations of the board of health. In July, 1888, the plaintiff caused a water-closet to be put into his cellar by a competent plumber, and connected the same with his drain-pipe, the top of the bowl of the closet being about on a level with the top of the sewer, and being built as high as the space in the cellar would permit. Until August 27, 1888, the plaintiff’s house and cellar were dry and free from water, but on that day, and again in the September and January following, there were heavy falls of rain, and the cellar was overflowed with water and sewage, which backed up from the sewer through the closet and stood in the cellar to the depth of several inches, and created a nuisance.</p> <p>The plaintiff offered by competent evidence to show that the fifteen-inch overflow at the place where the Sycamore Street sewer connected with the Acushnet Avenue sewer was not sufficient to keep the latter from being clogged up; that the Acushnet Avenue sewer was not built large enough to take care of the water and sewage that came from the sewers that ran into it; that the Willis Street sewer (into which the Acushnet Avenue sewer emptied) was not large enough to carry off the water and sewage that emptied into it from the Acushnet Avenue sewer and its connections; and that the overflowing of the cellar was in consequence of the Acushnet Avenue sewer and Willis Street sewer being unable to take care of the water and sewage that came into them, and thus flowing back upon the plaintiff’s premises by reason of the insufficient size of the sewers.</p> <p>No claim was made that the sewers were out of repair, or that they had been clogged up in any way, except so far as they were clogged up by the water and sewage that came into them.</p> <p>The defendant contended that the injury to the plaintiff resulted from a defect or want of sufficiency (if any) in the plan of drainage adopted, and for this it was not liable; also that the size of the sewers, which was fixed by the mayor and aider-men at'the time of their construction, was not subject to the control of the city, and it would not therefore be liable even if the same had been so fixed by the mayor and aldermen of an insufficient size; and that the mayor and aldermen in so fixing the size acted as public officers, and not as agents of the city.</p> <p>The judge ruled that, upon the plaintiff’s proof and the facts offered to be proved, the action could not be maintained, and directed the jury to return a verdict for the defendant. If the ruling and direction were erroneous, a new trial was to be granted; otherwise, judgment was to be entered on the verdict.</p>

Indictment, on the Pub. Sts. c. 203, § 7,* for maliciously burning a building and burning insured property, with intent to defraud the insurer. Trial in the Superior Court, before Bráley, J., who, after a verdict of guilty, allowed a bill of exceptions, which, so far as material to the point decided, appears in the opinion.

<p>False Accusation — Discharge from Employment—Damages — Injury to Feelings.</p> <p>If a false statement unjustifiably made to an employer respecting an employee has the effect to deprive the latter of his employment, on which he relies for his support, such employee, in an action against the person making the statement, may recover for the injury to his feelings.</p>

<p>Principal and Agent — Purchase by A gent — Constructive Trust — Mortgage — Redemption.</p> <p>The lessee and second mortgagee of real estate, who took the lease for the purposes of control and management, though acting discreetly, was unable to meet an interest payment on the first mortgage, and, after vainly trying to induce the owner, whose presence seriously interfered with the proper management of the estate, to fulfil his agreement to vacate, refused to act for him further. The owner then tried to sell the property by auction and at private sale, but failed to do so; and subsequently, at a foreclosure sale under the first mortgage, the lessee, after telling the owner and his attorney and others present that he was there to protect his own interests, bid off the property. Afterwards the owner accepted from the mortgagee the surplus proceeds of the sale above the mortgage and expenses, and gave his receipt therefor. Held, on a hill in equity by such owner against the lessee and the first mortgagee to recover the property, that it could not be said, as matter of law, that the relation of the lessee to the owner at the time of the sale was such as to render the sale invalid; and that a master's finding for the defendants should not be disturbed.</p>

Writ or entry, to recover a life estate in certain real estate in North Attleborough. Trial in the Superior Court, before Sherman, J., who excluded certain evidence offered by the demandant, and ordered a verdict for the tenants; and the tenants alleged exceptions. The nature of the evidence appears in the opinion.

<p>Conveyance in Fee — Easement — Breach of Covenant — Eviction.</p> <p>It seems that a deed of so much land “ as may be covered and flowed by the new reservoir,” in which the grantor reserves to himself and his assigns a right to take soil therefrom, '• or otherwise improve, not interfering on the said flowage,” conveys the fee, and not merely an easement to flow the land.</p> <p>Land was conveyed in fee to a.manufacturing company with a full right of flowing the same, the grantor reserving the right to improve it without interfering with the flowing; and for many years the grantee flowed it in the winter and the grantor cultivated it at other seasons. The grantor’s heirs then conveyed to a married woman, by a warranty deed with full covenants, certain premises which included a small part of the land already conveyed to the company, and after two years of cultivation and flowing as before she conveyed the same premises to a third person, and he to her husband, whose subsequent cultivation thereof was prevented by a longer flowing of the land than usual. Held, that the wife was evicted during her ownership, and her right to sue for the breach of covenant did not fall to the husband; and that the latter could not maintain an action against her grantors for breach of the covenants in their deed.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, a child not quite six years old, by being run down by a horse and carriage, through the alleged negligence of the defendant’s servant.</p> <p>At the trial in the Superior Court, before Hophins, J., there was evidence that on November 14, 1890, and for a month previously, the plaintiff had attended a primary school situated on Brownell Street in the city of Fall River; that about four o’clock in the afternoon of that day, after the school had been dismissed, she left the school yard with thirty or forty other children, and, unattended except by them, proceeded along the sidewalk of that street towards its junction with the east side of North Main Street; that the most direct way to her home was by crossing Brownell Street at this junction, and by proceeding along the east sidewalk of North Main Street; that when she reached the corner two other girls had already crossed, and were standing on the opposite corner; and that she started to cross, and got nearly over the crossing, when she was struck either by the defendant’s horse or carriage, then being driven by his servant from North Main Street around the corner into Brownell Street, and was knocked down, receiving the injuries in question. The plaintiff testified that she was “ skipping ” over the crossing; that she had just called out to one of the girls ahead of her, “ and did not see any horses around before she started ”; and that while she was “ skipping along,” and had got almost across, she was struck and injured as above described. On cross-examination she testified that, if she had not been “ skipping,” she would not have been hurt; and that she knew that if she was struck by a horse and carriage she would get hurt. The plaintiff introduced evidence, which was contradicted, that the defendant’s servant at the time was whipping the horse, and that the horse was trotting as he turned around the corner; and the defendant introduced evidence, which was also contradicted, that the plaintiff was warned by the other girls, who saw the defendant’s horse and carriage approaching, not to go over the crossing; that the plaintiff answered them that she could get over before the carriage; and that she was “skipping” along without stopping when she was struck and run over.</p> <p>The defendant asked the judge to give the following instructions, without more: “ If the plaintiff was ‘ skipping ’ across the way, and was warned of the approach of defendant’s horse and carriage, and, although so warned, refused to stop, and was injured while trying to get across the way before the horse and carriage should reach her, and took the risk of so doing, she was not in the exercise of due care, and cannot recover for injuries received from her coming into collision with the said horse or carriage by reason of her said conduct.” Having read the request to the jury, the judge said: “ I qualify that; it is for you to say whether or not, if she did ‘ skip ’ across, and, refusing to heed the warning, persisted in going across, whether that was due care upon her part; if it was not, then she is not entitled to recover.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Writ of error, to reverse a judgment of the Superior Court.</p> <p>At the hearing, before Knowlton, J., it appeared that William Burgess, the defendant in error, brought an action against George Curran, the plaintiff in error, Thomas Curran, Samuel Ramsbottom, Joseph Simpson, and Lawrence Fielding, on a joint promissory note dated September 21, 1874, and made payable to the Currans, and indorsed by them, and signed by the three last named; that on October 16, 1890, judgment was entered in the Superior Court in favor of Burgess against all five of these defendants; that at the time the action was brought and at the entry of judgment Ramsbottom was not an inhabitant or resident of this Commonwealth, and had no attachable property here, and no personal service was made upon him, the only service upon him being by publication; that due and sufficient service was made on all the other defendants; that Thomas Curran and Joseph Simpson had died since the entry of judgment and before the petition for this writ of error was brought, neither leaving any property, and no administration had been taken out on the estate of either; that the defendant in error was willing to discontinue as to both of these and as to Rams-bottom : that the defendant in error had apparently now no remedy upon the note upon which the original judgment was entered, the same being barred by the statute of limitations; and that an action had been brought by the defendant in error upon the judgment which was still pending.</p> <p>The plaintiff in error contended that the entry should be either, “Judgment for the plaintiff in error, the former judgment reversed,” or simply, “ Judgment reversed.”</p> <p>The defendant in error contended that the entry should be, “ Judgment reversed, and judgment rendered against the defendants George Curran and Lawrence Fielding for the sum for which the original judgment was rendered, with interest added from the date of the original judgment,” or some other entry which shall give to the defendant in error such judgment as the Superior Court should have ordered in the original action.</p> <p>The judge was of opinion that the defendant in error was right in his contention, but, at the request of the plaintiff in error, reported the case for the consideration of the full court, such entry to be made as law and justice might require.</p>

<p>Contract in Writing — Specific Performance.</p> <p>On a bill in equity against a corporation for the specific performance of its agreement with the plaintiff to license him under certain letters patent, it appeared that, when the agreement was entered into, the defendant had the right to make and sell the patented article under a contract with the assignee of the patents, and employed the plaintiff as a travelling salesman; that such license, by the terms of the agreement in question, was to be operative only in the event of the defendant’s abandoning its contract with the assignee, as it had a right to do, and was stipulated for by the plaintiff to protect him against such an abandonment while he was thus employed; that the contract between the defendant and the assignee was never abandoned, but had terminated, as well as such employment, by mutual consent; and that the plaintiff had suffered no damages from the defendant’s neglect to give him a license. Held, that the bill could not be maintained.</p>

<p>Equity — Multiplicity of Suits — Adequate Remedy at Law.</p> <p>A husband and wife brought a bill in equity against a builder and a mason, alleging that the builder agreed with the husband by separate contracts in writing to build for him a house on his land, and one on his wife’s land; that he had substantially completed them, though not entirely in accordance with the contract, and had under an oral agreement done extra work on both; that the husband had made payments in full on account of both contracts and of the extra work, some only of which were specifically appropriated; that the builder claimed to be entitled to further payment, and had sued the husband therefor; that the mason did the mason-work on the house on the wife’s land under contract with the builder or as his employee, the wife not having in any way made herself liable therefor, and had received payments from him on account thereof, and had sued her for a balance alleged to be due him for his work; and that the two actions were brought by the fraudulent collusion of the defendants with intent to defraud the plaintiffs, and to compel them to pay twice for the same work. The plaintiffs offered to pay the defendants anything due them, but insisted that such payment should be a bar to any action by either; and asked that, if the mason's claim was established, the builder might be ordered to repay the amount overpaid him, and for a full and final adjustment between the parties. Held, that each plaintiff had a full, adequate, and complete remedy at law; and that they were not jointly interested in any of the matters alleged by them, and could not maintain the bill.</p>

<p>Contract, to recover for personal services. Trial in the Superior Court, before Hopkins, J., who excluded certain evideuce offered by the plaintiff, and ruled that there was no evidence for the jury of the contract alleged in the declaration as made between the plaintiff and the defendant, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The nature of the evidence appears in the opinion.</p>

Contract, to recover the price of certain barrels of ale, sold by the plaintiff to the defendant. The answer contained a general denial, and set up that the sale was illegal. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on agreed- facts, in substance as follows. The. plaintiff was a corporation doing business as a brewer of ale at Portsmouth in the State of New Hampshire.

<p>Contract, for money paid by the plaintiff for the defendant’s use at the defendant’s request. Trial in the Superior Court, before Braley, J./ who allowed a bill of exceptions, which, so far as material to the point decided, was as follows.</p> <p>The plaintiff introduced evidence that, in the spring or early summer of 1886, a corporation was organized at Haverhill to provide grounds where the game of base-ball could be played and accommodations afforded the spectators; that in June or July of that year the plaintiff, who was the president of the corporation and its principal promoter, asked the defendant to subscribe for a share of stock therein, and the defendant assented and directed the plaintiff to have a certificate therefor issued to him and delivered to his attorney; that neither the defendant nor his attorney paid for the share, and in the autumn of 1886, the corporation being in need of funds, the plaintiff paid to the treasurer the sum of one hundred dollars for such share on the defendant’s behalf, which amount the defendant subsequently promised to repay to the plaintiff. The plaintiff then offered evidence, which was admitted against the defendant’s objection, tending to show that after the issuing of the certificate the defendant at various times in 1886, when games were in progress at the grounds, occupied a seat as stockholder among those which were reserved exclusively for stockholders in the corporation, and for invited guests from out of town, and for representatives of the press. The defendant denied that he attended the games, or ever became a stockholder, or that the plaintiff advanced any money for him.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Personal Injuries — Master and Servant — Negligence — Due Care.</p> <p>A point, which does not appear to have been taken at the trial, is not open upon a bill of exceptions.</p> <p>A dealer in fireworks contracted to “ furnish and fire ” a display thereof for a city celebration, and procured two men to make it for him; and during the display a woman was injured. In an action brought by her against the dealer for her injuries, which were alleged to have been caused by a bomb or a fragment of a bomb, there was evidence that the display was made in an enclosure set apart by the city, the bombs being fired perpendicularly into the air; that near where the plaintiff stood a fragment of a bomb and several rocket shells were picked up; that the enclosure was too small for perpendicular firing to be safe; that insufficient time was taken for preparation, and the firing was done in somewhat of a hurry; that due care in firing bombs required that the mortar should be so aimed that the bombs would not fall upon the spectators; that the substance which hit the plaintiff fell at a place far from where it was intended to fall or safe for it to fall; and that the plaintiff when struck was standing in the midst of the crowd gathered to see the display, and, apparently, in the place where they were expected to stand. Held, that the case was properly submitted to the jury.</p>

Tort, to recover for personal injuries sustained by the plaintiff, an infant, from the bite of a dog. At the trial in the Superior Court, before Hammond, J., it appeared that the name of the plaintiff’s father originally had been inserted in the writ as her next friend, but that before the trial he had been removed by the court upon a petition filed in behalf of the infant; and another person had been assigned by the court to act as next friend.

<p>Two trustee processes. Writs dated November 21, 1889. The cases were submitted to the Superior Court, and, after judgment for certain claimants, to this court, on appeal, on agreed facts, in substance as follows.</p> <p>The plaintiffs in each case were residents of the State of Maryland, and sought to recover in an action of contract for goods sold in that State to the defendants, and brought their actions in this Commonwealth in order to attach funds of the defendants in the possession of the Springfield Fire and Marine Insurance Company, a corporation organized under the laws of this Commonwealth, and having its usual place of business in Springfield in this State. The defendants, who were retail merchants doing business and residing at Spring Hope, Nash County, North Carolina, appeared, and judgments were -rendered against them for amounts exceeding the sum held by the trustee. The trustee filed answers disclosing funds in its possession to the amount of §900 due the defendants at the time of the service of the plaintiffs’ writs upon it, under a policy of insurance, as hereinafter set forth.</p> <p>One Threewitts and one Johnson, both residents of North Carolina, appeared in each action as claimants of the funds in the possession of the trustee, under an assignment made to them by the defendants on November 13, 1889. This assignment, which was valid in the State of North Carolina, set forth that “ Whereas W. V. Bobbitt, of the firm of Bobbitt and Spivey, is justly indebted to his wife, Mary E. Bobbitt, in the sum of $2,500, evidenced by a bond dated first day of January, 1887, bearing interest at rate of eight per centum from date, which amount was used by the said Bobbitt as capital for the commencement of a general merchandise business by the said W. V. Bobbitt and Joseph J. Spivey, under the firm name of Bobbitt and Spivey, in the town of Spring Hope, Nash County, North Carolina,” and whereas that firm was also indebted to certain other residents named of North Carolina, in certain specific sums, and whereas the firm was indebted to various other persons for merchandise, whose names and the amount of whose claims were unknown, therefore the plaintiffs, in consideration of the premises and of the sum of one dollar, had conveyed unto Three witts and Johnson a certain lot of land in the town of Spring Hope, “and all the stock of goods, wares, and merchandise now in the possession of said Bobbitt and Spivey in the said town of Spring Hope; also certain policies of insurance upon the said stock of goods, wares, and merchandise, viz. Policy No. 221 in the Springfield Fire and Marine Insurance Company of Springfield, Mass. . . . Also all the entire stock of whiskey, brandy, liquors, etc. now owned by the said Bobbitt and Spivey in the town of Spring Hope, aforesaid. Also all the accounts, notes, mortgages, or other choses in action, and all other personal property whatsoever, now owned by the said Bobbitt and Spivey.”</p> <p>The assignment further provided that Three witts and Johnson should hold the property conveyed to them in trust, and, after allotting to Spivey an exemption of five hundred dollars, should sell the same, and, after payment of their commissions and the expense of executing the trust, pay the debts due to the creditors named in the assignment, including the wife of Bobbitt, '■'■fro rata, and in full, if there be a sufficiency,” and with the residue, if any, should pay the remaining debts owed by the firm, and hand over the remainder, if any, to the members thereof. At the time the assignment was made, the personal property therein mentioned and the insurance policy issued 'by the trustee to the defendants were delivered to the assignees, but prior thereto a portion of the stock of goods covered by the policy had been destroyed by fire, and the loss thereon was adjusted, so far as the trustee is concerned, at $900; but there was other insurance. The plaintiffs denied the validity of said assignment, as against their attachments in this Commonwealth, and claimed to hold said-funds by virtue thereof.</p> <p>If the claimants were entitled to the funds, judgment was to be entered for them, and the trustee discharged; otherwise, judgment was to be entered for the plaintiffs, and the trustee charged on the answers.</p>

<p>Indictment, on the St. of 1891, c. 125, in two counts, alleging in the first count that the defendant on July 13,1891, did “impose and exact a fine, to wit, a fine of forty cents,” upon one Fielding, then employed by him in his factory in Dudley in weaving woollen cloth, “ for imperfections that had arisen during the process of weaving in the cloth and material woven by the said ” Fielding, while he was so employed and engaged at weaving; and in the second count that the defendant at the same time and place did “ withhold a certain part of the wages of said ” Fielding while so employed and engaged, “ to wit, the sum of forty cents for and on account of imperfections ” in the weaving of Fielding, as set out in the first count.</p> <p>In the Superior Court, before the jury were impanelled, the defendant moved to quash the indictment for the following reasons:</p> <p>“ 1. Because the words ‘ did impose and exact a fine,’ as alleged in the first count of said indictment, do not legally and correctly describe any punishable offence described in the provisions of chapter 125 of the acts of the Legislature of 1891.</p> <p>“ 2. Because the said words are not, in import and substance, the same as those stated in said act, but do in fact constitute the substance of the charge alleged in the said first count, and describe the identity of that which is essential to such charge, so that no words or part of the words of said allegation can be rejected as surplusage.</p> <p>“ 3. Because, if by the provisions of said act it is one offence to impose a fine, and another offence to withhold wages, or any part thereof, then the said words of said count describe two separate and distinct offences, and the said count is defective and bad in law for duplicity.</p> <p>“ 4. Because the second count does not set out, or allege and describe, legally and fully, as required by law, any punishable offence under or described in the provisions of said act.</p> <p>“ 5. Because, obviously, each of the said counts in the said indictment relate to one and the same act of the defendant, neither one of which counts fully and legally describes any punishable offence under said act, as required by law; and because the said, indictment moreover contains no averment that the said several counts describe the same act of the defendant.</p> <p>“ 6. Because the only offence punishable or described in the said act, or provided therein, is, in substance, the imposing of a fine for imperfections that arise in the process of weaving, and the withholding of the wages of the employee therefor, which is not charged in this indictment against this defendant in either count thereof.”</p> <p>Thompson, J. overruled this motion.</p> <p>At the trial the following facts were agreed. The defendant is a woollen manufacturer in the town of Dudley, and employed among other operatives about forty weavers. On May 18,1891, the defendant entered into an agreement in writing under seal with such weavers, whereby, in consideration of the defendant’s employing them and paying them their wages monthly at certain fixed rates, they agreed among other things to accept his employment and serve him faithfully during such employment, and to accept as wages “for all imperfect weaving work such reduced rates and prices, and at such rates and prices less than those paid for perfect work, as the said Perry shall deem reasonable and proper compensation for imperfections in weaving, or imperfect work, and a fair compensation for the work actually done,” and “ to pay to said Perry monthly, from the wages earned in his employ in weaving, the amount of such deductions for imperfect work and imperfections as said Perry on inspection shall find and judge due him for the damage, loss, and injury caused by such imperfect weaving, or imperfections, — whether such deductions be called ‘ fines,’ ‘ deductions,’ or be called by any other name, — which damage, fines, or deductions for such imperfect weaving and imperfections are hereby assumed, and covenanted and promised to be paid to said Perry from wages earned in said employment, as compensation for the loss and injury caused to said Perry thereby.” Among the weavers signing this agreement with the defendant was the Fielding referred to in the indictment, and he had remained in the defendant’s employ continuously since the date of the agreement. The wages earned by Fielding in June, 1891, would have amounted to $21.53, if the cloth woven by him had been free from imperfections, but by reason of such imperfections, which arose during the process of weaving and which injured its merchantable value, the defendant deducted therefrom and withheld from him the sum of fifteen cents and paid him for his work the balance of $21.38. This balance was a reasonable compensation for the work actually done by Fielding during that month, and the fifteen cents so deducted did not represent the actual damage done to the defendant by the imperfect work done by him.</p> <p>The defendant requested the judge to rule, among other things, as follows: “ Chapter 125 of the acts of the Legislature of the year 1891, under the provisions of which the defendant was indicted, is unconstitutional and void, especially because it is in violation of the provisions thereof against granting special advantages to a class of the people as distinguished or distinct from the community, and because also it is repugnant to other fundamental principles thereof.”</p> <p>The judge refused so to rule, and instructed the jury, as matter of law, that, upon the agreed facts, the jury would be authorized to find the defendant guilty, and submitted the case to them.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by being crushed against the timbers of a bridge by a cart belonging to the defendant. At the trial in the Superior Court, Braley, J. refused to rule, as requested by the defendant, that on the evidence the action could not be maintained, and submitted the case to the jury.</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>Information in EQUITY, at the relation of the Harbor and Land Commissioners, for the removal or alteration of certain portions of the defendant’s club-house, situated upon Commonwealth Avenue in Boston, erected in violation of the restrictions in a deed from the Commonwealth under which the defendant derived its title. After the former decision, reported 153 Mass. 447, the case was heard by Morton, J., upon an application by the plaintiff to settle the form of the decree.</p> <p>The evidence of an expert was introduced tending to show that to complete the proposed alterations in the club-house would require from three to four months. It also appeared in evidence, against the plaintiff’s objection, that on May 8, 1891, an application was made to the Legislature to suspend the enforcement of any decree that might be entered against the defendant without waiving any of the Commonwealth’s rights in the premises, but that this application, and a resolve framed in accordance therewith, were referred to the next General Court.</p> <p>The judge ordered a final decree to be entered, by which the defendant was ordered, within three months and at its own expense, and in accordance with certain plans and specifications furnished by it under an order of the court, to remove and alter, among other things, certain portions of its club-house, “as set forth in the said plans and specifications and in conformity thereto, viz. in the manner following, to wit: The solid walls, or 1 screens,’ so called, which close in front the triangular spaces between the two bay windows on each side of the porch, and between the porch and the inner bays, on the first or basement story of the said building, and which form, in conjunction with the front walls of said bays and porch, a continuous basement front, and also the said inner bays with the foundation walls sustaining the same, and also the balconies over the said triangular spaces and over the said inner bays, are to be removed so that the entire space between the said porch and the outer or flanking bays on each side of said porch shall be on the same face as the main front wall of the said club-house.” The decree also ordered the defendant to pay the costs of the suit. The defendant thereupon appealed to the full court.</p> <p>(r. Putnam, for the defendant, contended that the decree directed the removal of the foundations as well as the superstructures of the inner bay windows, and, no objections to such foundations having been raised at any previous stage of the case, so much of the decree as related thereto was erroneous, and should be stricken out; that time should be afforded the defendant to see whether the General Court would pass upon the question whether the Commonwealth would not be content with a declaration of its rights, and refrain from insisting that the alterations should be carried out; and that in arcase of this kind the costs should not be given to the Commonwealth.</p>

<p>Replevin — Estoppel in Pais — Intention to deceive — Exceptions.</p> <p>An intention to deceive is a necessary element of estoppel in pais; and one, whose false speech or action has misled another, is not estopped thereby, unless he knew or ought to have known that his words or conduct reasonably might influence such other’s action.</p> <p>If an officer attaches goods belonging to one, upon a writ against another, relying on a statement made to him by the owner that the goods belonged to such other, the owner is not estopped from claiming the immediate possession of them, unless he had reason to suppose that the false statement might induce the officer so to attach them, and the statement was relied on by the officer to such a degree that, except for it, he would not have made the attachment. In replevin from an officer of goods attached by him as belonging to a third person, where the plaintiff’s ownership was conceded, there was evidence which was contradicted that immediately before and at the time of attachment the plaintiff stated to the defendant that the goods belonged to the person sued, and that he did not claim them as his own until the next day. It did not appear that the defendant knew that the plaintiff was an officer, or was seeking to make an attachment. The presiding judge refused to instruct the jury, as requested by the defendant, that, “ if the facts present a case where the plaintiff by his voluntary acts and neglect to act has misled the defendant to his prejudice, you may find a waiver by the plaintiff of his right to immediate possession and a verdict for the defendant; if the plaintiff by word or act deceived the defendant to his injury in relation to the attachment, and by his word or act the defendant as an officer was led to attach the property in question, you must find for the defendant”; and instructed the jury that if they found that the plaintiff, for the purpose of inducing the defendant to attach the property as belonging to * the person sued, told him it belonged to such person, and that the defendant, relying upon that statement, attached the property when he would not otherwise have attached it, then the plaintiff would be estopped from claiming the property as against the defendant, whom he had thus fraudulently induced to attach it. Held, that the defendant had no ground of exception.</p>

<p>District Court — Special Justice — Jurisdiction — Record.</p> <p>The record of a district court disclosed a complaint addressed to the “justice ” thereof, and purporting to he “received” by the “court,” with the jurat signed by a “ special justice ” thereof, and a warrant and summons bearing the seal of the court, the summons setting forth that the complaint was made before the “court”; but the record did not state that the court was not in session when the complaint was received, or that any fact existed which gave the special justice authority to act. A motion to quash, alleging that the record contained no such statement, and concluding, “ and so it does not appear that said complaint was received, the warrant and summons issued, or any proceedings had before any magistrate having authority or jurisdiction,” was renewed by the defendant on appeal in the Superior Court and overruled, and no amendment of the record was there offered. Held, that the record showed that the complaint was received when the court was in session, and, no reason appearing for the special justice’s acting, the motion should have been allowed; and that a conviction had in the Superior Court could not be sustained.</p>

<p>Guardian and Ward — Insane Person ■—Husband and Wife — Fraud.</p> <p>A guardian has no title or interest in liis ward’s estate, and cannot maintain a bill in equity in his own name to avoid a conveyance or transfer by the ward of his property.</p> <p>A bill in equity, brought in his own name by the guardian of an insane person, will not lie to avoid transfers of property fraudulently procured from the ward while he was not of sufficient mental capacity to bind himself by such transfers, but must be brought in the name of the ward; and the rule against self-stultification does not apply.</p> <p>A husband may sue his wife in equity during coverture to try the question whether certain property, conveyed by the husband to the wife through the alleged fraud of the latter before the marriage, and sought to be recovered by' him, is the separate property of the wife, or belongs to the husband, and ought to be restored to him.</p>

<p>Appeal, by various creditors of the estate of Ebenezer Dale, from a decree of the Probate Court for Suffolk County giving his widow, on her petition, an allowance of $5,000 out of the personal estate of her husband. The case was heard by Allen, J., who affirmed the decrée, and, upon an appeal being taken from his decision, reported the case for the consideration of the full court, upon agreed facts, in substance as follows.</p> <p>Ebenezer Dale had lived with his wife in Boston, passing his summers with her at Gloucester. Both parties were of high social standing. Mr. Dale died on September 9,1889, at the age of forty-six years, intestate and insolvent, leaving personal estate valued at over $168,000, including policies of insurance on his life worth $15,000, but no real estate. There were never any children by the marriage. Before Mr. Dale’s death he and his wife had broken up housekeeping, and it was their intention in the autumn of 1889 to go and live with Mrs. Dale’s father, who was eighty years of age and possessed of considerable property. At the time of her husband’s death Mrs. Dale, who was about thirty-nine years of age, was actually staying at her father’s house, and he charged her nothing for board and lodging. She had an income of $1,200 from her private property.</p> <p>The petitioner produced at the hearing a statement from the assistant registrar of probate for Suffolk County, showing that in the last ten or twelve years there had been about one hundred and twenty-five probate cases in Suffolk County in which the widow’s allowance had been fixed at $2,000 or over, the highest allowance found being $10,000.</p> <p>The case was argued at the bar in January, 1891, and afterwards was submitted on the briefs to all the judges, except Holmes, J.</p>

<p> Estate of Deceased Person—Widow’s Allowance. </p> <p>A delay of two years and eight months after the appointment of an administrator, in filing a petition in the Probate Court for a widow’s allowance under the Pub. Sts. c. 135, § 2, does not make it impossible, as matter of law, to decree an allowance.</p>

<p>Master and Servant — Risks of Employment - Volenti non fit injuria — Negligence — Due Care.</p> <p>A woman, in leaving a mill in which she was employed, by means of steps covered with ice, fell and was injured. In an action against her employer to recover for such injuries, there was evidence that the ice was due to exhaust steam from an engine run by the defendant falling upon the steps and freezing, so as to cause varying degrees of slipperiness in different states of the weather; that the plaintiff was fifty-one years of age and had worked in the mill for thirteen years; that the steps afforded the only means of leaving the mill, and fifty women working in the same room with the plaintiff used them daily; that the plaintiff knew the steps to be icy and more or less slippery in the winter season ; and that at the time of the accident she was going down the steps with a dinner pail in one hand, and holding on to the railing with the other. Held, that there was evidence tending to show that the defendant was negligent and that the plaintiff was in the exercise of due care; that whether the plaintiff assumed the risk was a question of fact for the jury; and that it could not be said, as matter of law, that she appreciated the risk, or that she was not acting under such an exigency as would justify her in going down by the steps, and deprive her act of that voluntary character which is referred to in the maxim, Volenti non fit injuria.</p>

Indictment for abortion, and also charging the defendant with being an habitual criminal under the St. of 1887, c. 435, § 1, in that he had been “ twice convicted of crime, sentenced, and committed to prison in this Commonwealth, with terms of imprisonment of not less than three years each, that is to say,” in December, 1879 and 1882, in each instance “ of the crime of breaking and entering a building in the night-time, with intent to commit the crime of larceny therein and…

<p>Gaming — Forfeiture of Properly — Unlawful Use.</p> <p>The purpose of the Pub. Sts. c. 212, § 9, as amended by the St. of 1885, c. 66, § 1, which provide for the forfeiture of property seized in a gaming-house during the progress of an unlawful game therein, seems to be to subject to forfeiture any property which is unlawfully used in a gaming-house, without proof of guilty knowledge on the part of the owner, and to put upon such an owner, who wishes to have his property secure, the burden of seeing that it is not kept and unlawfully used in such a house.</p> <p>The Pub. Sts. c. 212, § 9, as amended by the St. of 1885, c. 66, § 1, providing for the forfeiture of property seized in a gaming-house during the progress of an unlawful game, require that such property, in the absence of a finding in proceedings thereunder that it was unlawfully used or intended to be unlawfully used, shall be delivered to the owner.</p>

<p>Intoxicating Liquors — Contradiction of Witness.</p> <p>At the trial of a complaint for keeping a common nuisance, the defendant testified that he did not make the sales of intoxicating liquor complained of, but was at the time absent from the place in question, and subsequently introduced other evidence tending to show that at the time alleged he was in another place On cross-examination the defendant was asked, against his objection, if he had not previously had another case in court against him for violation of the liquor law, and if he did not testify at the trial thereof that he was not present at the times when the government witnesses in that case testified he was present The defendant testified that he had had such a prior case against him, and that he testified at the trial thereof, but that he had not in such case testified that he was not present at the times and on the occasions the government witnesses therein testified he was present. Held, that the defendant had good ground of exception.</p>

<p>Intoxicating Liquors — Cross-examination — Contradiction of Witness.</p> <p>The testimony of government witnesses in support of a complaint for unlawfully exposing and keeping for sale intoxicating liquors on a certain day, elicited on cross-examination, denying that they were intoxicated at any time other than that in question respecting which they testified in chief, is immaterial, and evidence contradicting the same is properly excluded.</p>

<p>Bill in equity, filed in the Superior Court, for the specific performance of an agreement by the plaintiff to sell and by the defendant to purchase land. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts; and was as follows.</p> <p>On April 9, 1842, Joseph D. Clark and twenty-five or thirty other persons formed the plaintiff society, with a constitution which adopted as the basis of its religious faith the profession of belief accepted by the General Convention of the Universalists at its session at Winchester, New Hampshire, in 1803, and provided for three trustees to be the executive power of the society and to see that all votes of the society were carried out. On April 3, 1854, Clark for the expressed consideration of nine hundred dollars conveyed the land in question by a deed containing the usual covenants to the plaintiff society, “ to have and to hold to the said First Universalist Society and their assigns, so long as said real estate shall by said -society or its assigns be devoted to the uses, interests, and support of those doctrines of the Christian religion embraced in the Confession of Faith adopted by the General Convention of Universalists held at Winchester, New Hampshire, in the year eighteen hundred and three. And when said real estate shall by said society or its assigns be diverted from the uses, interests, and support aforesaid to any other interests, uses, or purposes than as aforesaid, then the title of said society or its assigns in the same shall forever cease, and be forever vested in the following named persons, and such persons shall be the legal representatives of any of such persons at the time the same so vests as aforesaid in the following undivided parts and proportions, to wit: to Stephen M. Whipple Alanson Cady -^0%, John F. Arnold Joseph D. Clark [Here followed the names of thirty-seven others after each of which was placed a fraction in thousandths]. To have and to hold the above granted premises, with the privileges and appurtenances thereto belonging, to the said grantees, their heirs and assigns, to them and their use and behoof forever, as aforesaid.”</p> <p>On December 16, 1885, Clark executed and delivered to the plaintiff society a quitclaim deed of the same premises, “intending hereby to vest in said society absolutely and in fee simple the title to said premises free and discharged of all the conditions, restrictions, and restraints as to the uses, interests, and purposes for which said premises are to be used and enjoyed by said society, as set forth in my said deed of April 3d, 1854, and to enable said society to sell, lease, or otherwise use and dispose of said premises to all intents and purposes as if no restraints or contingent interests had been created by my said deed or referred to therein.”</p> <p>Upon the land so conveyed to the plaintiff a church was erected, which from the time of its erection to the present time has been occupied and used for religious worship by the plaintiff society, without any change in the profession of faith mentioned in the deed of April 3, 1851, or in its constitution. The agreement in question was made by the parties on April 20,1891, but the defendant, upon the tender of a deed to him from the plaintiff, refused to carry it out, on the ground, among others, that the plaintiff society never was seised in fee simple, but at most obtained only a qualified or conditional fee, and could not convey a good and clear title.</p> <p>The parties having ascertained that between April 3, 1854, and December 16, 1885, Clark had gone into bankruptcy, the plaintiff waived any rights which it might have under the deed of December 16, 1885, and relied for its title upon the deed dated April 3, 1854.</p>

<p>Tort, by the administrator of the estate of James Higgins, for causing his death. The writ was dated June 28, 1891, and the officer’s return thereon disclosed an attachment of certain cars belonging to the defendant found in the possession of another railroad company at Northampton in this Commonwealth. The declaration alleged that the intestate was domiciled in Springfield in the county of Hampden in this Commonwealth; that the plaintiff was duly appointed the administrator of his estate by the judge of probate of that county, on February 11, 1891; that the defendant owned and operated a railroad extending from a point in the State of Connecticut into the State of New York; that on October 24, 1890, the intestate, while employed by the defendant as a freight brakeman and engaged in the discharge of his duty as such and in the exercise of due care, was instantly killed in a collision which occurred through the defendant’s negligence; and that “thereby an action has accrued to the plaintiff, as administrator as aforesaid, to recover damages not exceeding five thousand dollars, by virtue of sections 1008 and 1009 of the General Statutes of the said State of Connecticut,* and he claims damages, us administrator aforesaid, under said laws and statutes.” The defendant demurred, for the reason, among others, that “the plaintiff cannot maintain an action in this Commonwealth under or by reason of sections 1008 and 1009 of the General Statutes of the State of Connecticut.”</p> <p>The Superior Court sustained the demurrer-; and the plaintiff appealed to this court.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ by the fall of a derrick used by it in constructing a dam. Trial in the Superior Court, before Staples, J., who submitted to the jury the question whether the defendant was a corporation, and whether the plaintiff’s injuries were due to the negligence of a fellow servant; and the defendant, after a verdict for the plaintiff, alleged exceptions, which, so far as material to the points decided, appear in the opinion.</p>

<p>Obstruction of Way — Mandatory Injunction — Final Decree — Report — Waiver — Estoppel.</p> <p>It is for the court, in the exercise of a sound discretion, to determine whether a permanent obstruction in the use of an easement entitles the aggrieved party to a restoration of the former situation, and a mandatory injunction will not he issued when it will operate inequitably and oppressively, nor when there has been unreasonable delay by the party seeking it in the enforcement of his rights, nor when the injury complained of is not serious or substantial, and may be readily compensated in damages; while to restore things as they were before the acts complained of would subject the other party to great inconvenience and loss.</p> <p>It is doubtful whether a right to pass, not in a particular line, but everywhere over the premises over which the right is claimed, may be acquired by prescription as a right of way.</p> <p>On the issue whether the plaintiff had acquired a right to use as a passageway the entire area of certain premises before the defendant purchased the same, where it appeared that the parties had substituted another way therefor, and had continued to use the substituted way for many years without objection, it was held that equity would not interfere to compel the defendant to remove a permanent building erected by him on the premises.</p> <p>Where, on a bill in equity for a mandatory injunction for the removal of an obstruction from a way, the presiding justice, as the parties could not agree, appointed, without affording them a hearing, a commission to determine the location and the width of the way, the parties being informed thereof, but making no objection, it was held to be too late for the plaintiff to make objections after the commissioners’ report had been made, and a final decree had been entered.</p>

<p>Complaint, in two counts, charging in the first count a single sale of intoxicating liquor on July 26, 1890, and in the second another similar sale on July 27,1890, in each case to one Phipps. The complaint was addressed to “ George G. Withington, Justice of the Peace in and for the county of Bristol and Commonwealth of Massachusetts, designated and commissioned to issue warrants in criminal cases.” The jurat annexed to the complaint was as follows: “ Bristol ss. Received and sworn to the fifth day of January in the year one thousand eight hundred and ninety-one.. Before me, Geo. G. Withington, Justice of the Peace, authorized to issue warrants as aforesaid.”</p> <p>At the trial in the Superior Court, before Hammond, J., Phipps testified that he went to the defendant’s shop in July and purchased intoxicating liquor of the defendant for himself and a companion named Lemke; that afterwards he went there on a Saturday night with another companion, and made purchases of intoxicating liquor of the defendant, and on the following Sunday went there alone. The defendant objected that evidence of another sale at that time would be incompetent. The district attorney then stated that, as then advised, he thought this was the sale upon which he should rely as the one named in one of the counts. The judge overruled the objection, and the defendant excepted. Against the defendant’s objection, the witness then testified that he then bought intoxicating liquor of the defendant. Lemke, the only other witness, then testified that on July 22 last he went to the defendant’s place with Phipps, and"they had two glasses of intoxicating liquor of the defendant, and Phipps paid for it, and that this was the only time he went there with Phipps. The district attorney elected to rely upon the sales on Saturday evening and Sunday, and the court instructed the jury that they must disregard all evidence of any sales except those so elected. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p> <p>The defendant then filed a motion in arrest of judgment, on the ground that “ George G. Withington had no legal authority to receive the original complaint in this case, or to administer the oath to the complainant, or certify thereto, all of which appears of record; wherefore he says that neither this court nor any other court has jurisdiction to enter judgment against him under said complaint.” The judge overruled the motion; and the defendant appealed.</p>

<p>Personal Injuries — Master and Servant — Defective Machine.</p> <p>In an action at common law for personal injuries received by the plaintiff while at work for the defendant upon a mule spinning-machine alleged to be defective for want of a catch to hold the belt shipper, there was evidence that at the time of the accident the machine was in charge of a machinist sent by a machine company to repair it, and the plaintiff was detailed to assist him; that in so doing the plaintiff stood between the roller beam and the carriage, which was drawn out and at rest; that the belt was still on the drawing-out pulley and the spindles were revolving; that the machinist had occasion to stop the spindles, and took hold of the shipper to throw the belt on to the loose pulley, but his hand was greasy, and the shipper slipped from it and carried the belt beyond the loose pulley on to the drawing-in pulley; that thereupon the carriage was drawn in and the plaintiff injured; and that a catch previously provided to hold the shipper after the belt was thrown had disappeared. Held, that the absence of the catch did not contribute in any way to cause the accident, and that the plaintiff was not entitled to go to the jury.</p>

<p>Contract upon a probate bond, brought in the name of the judge of probate of Nantucket, against the defendant Coffin, who was the administrator with the will annexed of Franklin A. Ellis, as principal, and his- sureties, for the benefit of Sarah A. Shores, formerly Sarah A. Ellis, the daughter of the testator. Trial in this court, before Knowlton, J., who, after a verdict for the plaintiff, ordered execution to issue for a certain sum ; and the defendants alleged exceptions, which, so far as material to the points decided, appear in the opinion.</p>

Replevin of furniture. Trial in the Superior Court, before Sherman, J., who, after a verdict for the plaintiffs, allowed exceptions, which, so far as material to the point decided, appear in the opinion.

<p>Claim against United States — Gratuity — Assignment.</p> <p>A vessel and its crew, during a whaling voyage which terminated on August 17, 1872, rendered certain services in rescuing seamen in the Arctic seas, and a loss thereby resulted to the owners. Subsequently one of the owners conveyed all his interest in the ship to another owner, and afterwards, in May, 1874, assigned his entire interest in the voyage, including in terms claims against the United States, to the same owner. By act of Congress of February 21, 1891, a sum of money was directed to be paid to the owners of the vessel to compensate them for such loss and such services, upon receipt of which they were to give a full discharge of all claims, equitable or otherwise, which they had or thought they had against the United States on account thereof. Held, that the assignment of May, 1874, included the assignor’s interest in the amount subsequently awarded by the United States to the owners of the.vessel; and that the assignment was not invalid under the U. S. Rev. Sts. § 3477.</p> <p>Whether a claim presented by the owners of a vessel against the government of the United States for losses sustained and services rendered in rescuing seamen in the Arctic seas is in any event such a claim as comes within the provisions of the U. S. Rev. Sts. § 3477, qucere. ■</p>

Contract upon a written agreement, by which the plaintiff was to furnish to the defendant an elevator for delivering coal. After the decision of this court overruling the defendant’s demurrer, reported in 152 Mass. 428, the case was tried in the Superior Court, before Sherman, J., who, after a verdict for the plaintiff, allowed a bill of exceptions which, so far as material to the points decided, is as follows.

<p>Petition for a writ of mandamus to restore the petitioner to the office of policeman in the city of New Bedford. Hearing before Allen, J., who reported the case for the consideration of the full court in substance as follows.</p> <p>The petitioner, who was removed on February 3, 1891, from the police force of that city by the mayor, claimed to hold the office of policeman during good behavior, subject to removal by the mayor for cause deemed by him sufficient, after due hearing, according to the tenure of office of policemen fixed by the St. of 1890, c. 319, a statute which had been duly accepted by the voters of that city. On January 21, 1891, a written complaint was filed with the chief of police, setting forth that the petitioner had violated Rule 31 of the police regulations of the city in that he had engaged in political canvassing at two elections of the previous year, and had solicited votes, aid, and assistance from divers voters of New Bedford in the interests of certain political parties and candidates for political office; and on the same day the chief of police transmitted the complaint to the mayor, in accordance with Rule 24 of the police regulations.* The mayor appointed, a time for a hearing, at which evidence was offered in behalf of the complainant, but at which the petitioner offered no evidence, although he was present, having received a notice thereof half an hour before the hearing. The petitioner also appeared with counsel at an adjourned hearing before the mayor, and demanded specifications of the charges upon which he was to be tried, which the mayor declined to furnish. The petitioner then declined to proceed before the mayor, and the mayor declared the hearing closed, and removed the petitioner from office, stating, in his letter to the chief of police notifying him of the petitioner’s removal, that he found him guilty of violating Rule 31 of the police regulations. The petitioner denied the authority of the mayor to remove him.</p> <p>It was agreed that the judge was not called upon to review the findings of fact by the mayor, and the petitioner denied the charges brought against him.</p> <p>On cross-examination the mayor stated that he could not recall just what specific acts he found that the petitioner had committed which he deemed soliciting aid within the meaning of Rule 31; that he did not find that the petitioner had solicited money or any material aid, excepting that he talked politics; and he would not state that he found that the petitioner had talked politics while he was on duty. It was in evidence that the mayor, after his election and before his inauguration, declared, in speaking about this case, that “ he did not care about the evidence; he knew what McAuliffe had been doing; he knew all about it.’’ This evidence was called to the attention of the mayor at the hearing, and he said he would not deny it, but could not recall the conversation. The respondents offered evidence that at the hearing before the mayor testimony was introduced tending to show that the petitioner was at the headquarters of one of the political parties in the Sunday evening preceding the municipal election, in conference with its executive committee; that he had been engaged in political work and had been cautioned as to the consequences; that he had attended a conference as a member of a political committee; and that the petitioner told one Cooper that he had been working to get votes for a political party, and that the petitioner said to the mayor, “I admit I am guilty; what’s the penalty?" and also said to the mayor, at another interview, that, “ if he was going to be removed, he would like to know it so he could resign.’’ There was no other material evidence in the case.</p> <p>The petitioner asked the judge to rule:</p> <p>“ 1. That the petitioner held his office under chapter 319 of the Acts of 1890, and that he could be removed only for an act of bad behavior.</p> <p>“ 2. That the hearing should have been before the committee on police, that the petitioner did not receive due hearing, and that the notice of the hearing and the complaint was irregular and insufficient in law.</p> <p>“ 3. That it was a question of law for the court to determine whether the acts found by the mayor to have been committed by the petitioner amounted to bad behavior or to soliciting aid within the meaning of Rule 31, and that the act so found did not constitute bad behavior and was not in violation of the rule.”</p> <p>The judge found that there was a sufficient complaint or charge against the petitioner, and that he knew what he was charged with, and had an opportunity to meet it, and that in the hearing he was deprived of no legal right, and that the finding of the mayor was sufficient to warrant the removal of the petitioner, and ordered the petition to be dismissed. The petitioner appealed, and the judge reported the case for the consideration of the full court.</p>

<p>Petition for partition. At the trial in the Superior Court, before Hammond, J., after the evidence was all in, the respondent asked the judge to rule that there was not sufficient evidence to warrant the jury in finding a verdict for the petitioner upon the issue framed, and to direct the jury to answer the question submitted to them in the negative. The judge refused so to rule and direct, and the respondent alleged exceptions. The facts, so far as material, appear in the opinion.</p>

<p>Criminal Law — Indictment — Accessory — Subornation of Perjury.</p> <p>A charge of subornation of perjury may be joined with a charge of perjury in the same indictment, and the perjurer and suborner may both be included in it.</p> <p>An allegation in an indictment for subornation of perjury, that the perjurer “ wilfully and corruptly ” testified that she did not do certain things that were set out, whereas she “ then and there well knew ” that she did do those things, is a sufficient allegation that the perjurer testified falsely; and an allegation that the defendant did feloniously and maliciously incite the perjurer to commit perjury in the manner and form aforesaid is a sufficient averment that the defendant knowingly procured the perjury.</p>

<p>Complaint for setting up and using a hackney carriage for the conveyance of persons for hire from place to place within the city of Boston without a license from the board of police. .At the trial in the Superior Court, before Barker, J., the following .facts were agreed.</p> <p>The defendants, Page and Harris, are partners, and carry on a hack, boarding, and livery stable at 783 and 785 Tremont Street, in Boston. Their business consists in letting teams for hire, and in furnishing board for teams belonging to other persons. They had no stand for any of their carriages in the streets of the city of Boston, and never, by themselves or their agents, solicited patronage in the streets or elsewhere, except at their stable, nor did the drivers of their carriages ever accept orders in the streets, or elsewhere outside of the stables of the defendants, and no carriages were ever let except upon orders left at the stable. The defendants at the time of the complaint had no licenses for any of their carriages from the board of police. On April 11, 1890, Joseph P. Glancy, a police officer of the city of Boston, in citizen’s clothes, went to the stable of the defendants and left an order for a carriage to call at the Hotel Worcester, and convey two persons from there to a railroad station. At the hour named, the defendants’ servants harnessed a horse into the defendants’ coupé, and one of the defendants’ servants was directed to drive the coupé to the hotel and convey the persons mentioned by Glancy to the station. This was done, and upon the arrival of the coupé at the station, Glancy, who was one of the two passengers carried, paid the driver one dollar. The carriage, horse, and harness were the property of the defendants; the person receiving the order and harnessing the horse, and the driver of the carriage, were both in the employ of the defendants, and were acting in the usual and ordinary scope of their employment.</p> <p>At the time of the complaint in this case, the carriages owned by the defendants, and which they were accustomed to let, were hacks, victorias, carryalls, Goddard buggies, landaus, a coupé, a phaeton buggy, a light open wagon, a two-seated wagon, and sleighs for the winter time. It was the custom of the defendants never to let their hacks, landaus, victorias, or coupé to any person without sending a driver with them; all the other carriages owned by them they were accustomed to let either with or without furnishing a driver. The defendants wrere also accustomed to furnish drivers for those persons boarding teams at their stable. They were accustomed to let their carriages by the hour or by the day only. It was the general custom of persons hiring carriages at the time of the complaint not to pay the drivers of the carriages, but, as a rule, to pay their bills at the stable of the defendants, and the business of the defendants was mostly a credit business.</p> <p>By the third section of Rule 55 of the board of police of the city of Boston, relating to hackney carriages, it was provided that “ every vehicle used, or to be used, for the conveyance of persons for hire from place to place within said city, except a horse-car, shall be deemed a hackney carriage within the meaning of these rules”; and by the fourth section it was provided that “no person shall set up and use or have charge of any hackney carriage, unless he is licensed thereto by the board of police.”</p> <p>Upon the foregoing facts, the defendants requested the judge to rule that, as matter of law, they were not guilty of the offence charged in the complaint, which ruling was refused; and the defendants excepted.</p> <p>The defendants further requested the judge to rule that the board of police of Boston, upon said agreed facts, had no authority to require the defendants to obtain a license for their carriages, or any of them, and that if the defendants were required by such rules and regulations to obtain a license for any of their said carriages, or for said coupé, such rules and regulations were to that extent unauthorized and void, which ruling the judge refused to give; and the defendants excepted.</p> <p>The judge further ruled that, as matter of law, upon said agreed facts, the defendants were guilty, and directed the jury, against the objection and under the exception of the defendants, . to return a verdict of guilty; which the jury thereupon did.</p> <p>After such verdict, at the request of the defendants, the judge reported the case to the full court for its determination. If there was no error in the aforesaid rulings and directions, the verdict was to stand; otherwise, to be set aside.</p>

<p>Establishment of Exceptions — Duress — Threats of Imprisonment — Secondary Evidence — Rescission of Contract — Entries by Clerk.</p> <p>On a petition to prove exceptions, this court can consider only whether the truth of the bill of exceptions actually and seasonably filed by the aggrieved party is established; in doing this, however, slight errors may be corrected, and details may be added which are necessary in order properly to present the •exceptions relied on.</p> <p>In an action upon several promissory notes, it appeared at the trial that the notes were in the possession of the defendant, who refused, after a demand upon him by the plaintiff, to produce them, claiming that they had been paid. Held, that secondary evidence of the contents of the notes was rightly admitted.</p> <p>Where the question was whether the plaintiff, a clerk in the defendant’s employ, had embezzled money belonging to the defendant, and whether, after being accused of embezzlement by the defendant, the plaintiff had made a settlement with him under duress, through threats of arrest, and the plaintiff, for the purpose of showing the defendant’s mode of business, offered three slips of paper containing entries made by the plaintiff in the course of his employment, most of the entries thereon being subsequent to the time when the plaintiff was first accused, it was held, that the slips were the defendant’s property, made and used in his business, and were properly admitted in evidence.</p> <p>Where the plaintiff made a settlement with the defendant, and as part of the settlement received from the defendant a release of all the plaintiff’s claim against him, and where the plaintiff subsequently rescinded the settlement on the ground of duress, it was held that the release was not property of the defendant in the plaintiff’s hands, and that it was not necessary for the plaintiff to return it to the defendant before bringing suit upon a claim included in the settlement.</p> <p>One who reasonably believes that another has committed a crime, and who by threats of prosecution and imprisonment for the crime overcomes the will of the other and induces him to execute a contract which he would not have made voluntarily, cannot enforce the contract if the other attempts to avoid it on the ground of duress.</p>

<p>Contract to recover the balance due upon an agreement to work for the defendants for a year. Trial in the Superior Court, before Lathrop, J. The plaintiff introduced evidence tending to prove the following facts.</p> <p>The defendants on December 1, 1886, hired the plaintiff to be the foreman of the gang-room in their shoe shop at Brockton, for the term of one year, at a salary of twenty-four dollars a week. The plaintiff was to have charge of a number of men employed in such room, to superintend them and see that they were kept employed, to lay out their work and to see that it was properly done; and the presence of some one acting either temporarily or permanently as such foreman was necessary for the successful carrying on of the defendants’ business.</p> <p>The plaintiff entered on his employment under the contract, and worked for the defendants, and received his pay weekly according to the terms of the contract, until September 8, 1887. On that day he became ill with typhoid fever, and so remained until October 25 following, during which period he was incapacitated for work in the shop, and did not go there, and sent no notice to the defendants of the reason of his absence, of his condition, or in regard to the time he would be likely to remain absent or be able to resume work, except that on the day he was taken ill he informed them that he was ill, and went home. At no time during his illness was the plaintiff dangerously ill, or in danger of death, or of being permanently incapacitated for his work. On October 25 the plaintiff became well, and reported at the shop to go to work in pursuance of his contract. He was then and there told by the defendants that he had been discharged, and that there was a man in his place. This was the first knowledge the plaintiff had of his discharge. There was no evidence that the defendants made any inquiries regarding the illness or condition of the plaintiff during his absence, or gave him any reason for discharging him; nor was there any evidence as to when the discharge was made, or that the plaintiff was notified thereof until October 25.</p> <p>The action was for the balance due for the term of one year, from September 8,1887, to December 1,1887, waiving any claim for salary during the period of the plaintiff’s illness.</p> <p>The defendants asked the judge to rule, as matter of law upon the evidence, that the plaintiff could not recover. The judge so ruled, and ordered a verdict for the' defendants; and the plaintiff alleged exceptions.</p>

<p>Trespass — Mortgage — Partial Release — Mortgagee in Possession — Certificate of Entry — Marshalling of Assets.</p> <p>A mortgagee in possession under a certificate of entry for breach of condition has a sufficient title to enable him to maintain an action of trespass for damage to the premises.</p> <p>A second mortgagee conveyed part of the mortgaged premises by quitclaim deed, ■which did not refer to the mortgages, and in which he warranted against all persons claiming through or under the grantor; and subsequently acquired the first mortgage thereon. Held, that he was not precluded by his prior conveyance from obtaining title under the first mortgage, and enforcing it against his grantee.</p> <p>An agreement by the owner of the equity in mortgaged premises with a third party that a building to be erected thereon by such third party should be the property of the third party, and might be removed by him in case the owner of the equity failed to satisfy an indebtedness to the third party, is invalid as against the holder of the prior mortgage.</p> <p>The plaintiff, holding a first mortgage on an entire-tract of land and a second mortgage on a part thereof, foreclosed both mortgages at the same time, realizing from the foreclosure sale more than was due upon the first mortgage, but less than was due upon both mortgages. Held, that as holder of the second mortgage he had a right to have a proper proportional part of the first mortgage satisfied out of that part of the land which was not covered by the second mortgage.</p>

<p>Foreign Corporation — Filing of Certificate — Service of Execution — Officer’s Fees.</p> <p>The provisions of the St. of 1884, c. 330, which require every foreign corporation doing business in this Commonwealth to appoint the commissioner of corporations its attorney on whom service of process may be made, and to file with him certain papers before beginning to do business here, are directory merely; and a failure to comply with them does not invalidate the contracts of the corporation, nor deprive it of the right to sue in the courts.</p> <p>The right of an officer to charge for the service of a legal process is found only in • the statutes, and is limited by their provisions.</p> <p>Where an execution is levied on personal property, a bill paid for storage for the time between the entry of the writ and the date of the judgment cannot be allowed as part of the expense for serving the execution; but it should be presented to the court as an additional return on the writ before the final judgment, so as to be taxed in the costs of suit and included in the judgment.</p> <p>The fees allowed an officer for serving an execution do not include charges for sums paid for the care of the property two days and two nights after the auction sale on the execution ; nor for the personal services of the officer, in preparing advertisements of the auction sale, posting notices, making schedules of the property, and conducting the sale; nor for small sums paid for articles used incidentally to the sale, and in preparing the property therefor; nor a special fee for a levy.</p>

Contract on an account annexed. The answer contained a general denial and alleged that the debt, if any, arose from the defendant’s acts as guardian of the plaintiffs ; that her accounts in the Probate Court had not been acted upon; and that she had fully paid all claims, if any, due to them. Trial in the Superior Court, without a jury, before Dunbar, J., who found for the defendant, and reported the case for the determination of this court, in substance as follows.

<p>Contract to recover $541.66, for rent of the plaintiff’s store in Boston, for the months of June to October, 1889, inclusive, under an extension of a lease between the plaintiff and the defendant dated September 1, 1887. Trial in the Superior Court, before Dunbar, J., who ordered a verdict for the defendant, and reported the case for the determination of this court, in substance as follows.</p> <p>The following is the material part of the lease relied upon : “ To have and to hold the said store and other premises hereby-leased unto the said St. Louis Stamping Company, and their representatives, from the first day of September, A. d. 1887, during the full term of one year thence next ensuing, unless sooner terminated as hereinafter provided. It is further agreed that this lease may be extended for two years by lessee’s giving thirty days’ notice of such intention, the conditions to remain unchanged, except that an additional eight and one third dollars per month shall be paid, making the annual rent thirteen hundred dollars. Yielding and paying (except only in case of fire or other casualties hereinafter mentioned), as rent, the sum of $1,200 yearly, by equal monthly payments, as follows, to wit: $100 on the first day of each month in every year during said term, and at that rate for such further time as the said lessees or any other person or persons claiming under them shall hold the premises, or any part thereof; the first monthly payment to be made on the first day of October, now next ensuing; and the last monthly payment thereof to be made on the last day of August, A. D. 1888.”</p> <p>It appeared in evidence that the defendant entered on and occupied the premises from the beginning of the term until April 30, 1889, paying rent in monthly instalments of one hundred dollars on the first day of each month up to and including September 1, 1888; and on October 1, 1888, and on the first day of each month thereafter one hundred and eight dollars and thirty-three cents, until the defendant vacated the premises on April 30, 1889, when one hundred and eight dollars and thirty-three cents was paid as rent for the month of April. The defendant gave notice of its intention to quit the premises in March, 1889.</p> <p>Mo notice was ever given of any intention to extend the lease, and there was never any conversation regarding the same until October. 1,1888, when the plaintiff called at the premises and had an interview with one Ferry, employed by the defendant. The plaintiff testified that Ferry wanted to know why the rent was increased; that the plaintiff then showed the lease to Ferry, who said it was all right, and that they should remain; that Ferry said, “ We will continue to pay,” and they did pay. Ferry denied that he said that they should continue to occupy, and further testified that he had no instructions from the defendant company relative to an extension of the lease, and that the lease was kept at St. Louis. The increased rent was paid on October 1, 1888, and thereafter, by Ferry’s personal checks; statements of the expenses of the Boston store, including rent, were sent monthly to the office of the company in New York, and there was evidence tending to show that the defendant company had seasonable notice of the payment by the agent of the increased rent, as provided in case of a renewal of the lease.</p> <p>The defendant introduced in evidence the record, consisting of docket entries and papers in an action in the Superior Court between the same parties, brought to recover rent of the same premises under the same lease for the month of May, 1889, wherein the defendant recovered judgment; and it contended that the judgment in the former action was a bar to this action.</p> <p>The defendant called as a witness a typewriter, who produced a typewritten copy of the notes of the testimony of the former trial, made by the official stenographer, in pursuance of an agreement of the parties filed in the former case, and offered the copy in evidence; but the court excluded it, and the defendant excepted.</p> <p>There was other testimony as to what took place at the former trial, which was admitted subject to the plaintiff’s objection, as follows. The plaintiff on cross-examination testified that there was no evidence at the former trial in regard to payment of the month’s rent then sued for, and on direct examination Ferry also so testified. The latter also testified that in the former action there was evidence as to the extension of the lease, and evidence as to his own instructions and authority relative thereto, and as to a surrender of the lease and delivery of the keys. On cross-examination Ferry testified that evidence was put in on three or four different issues. It also appeared by the papers in the former actipn that the defendant therein denied each and every allegation in the plaintiff’s writ and declaration, and pleaded the statute of frauds, which was not set up, however, as a defence in the present case.</p> <p>If, upon the foregoing evidence, the jury would be warranted in finding a verdict for the plaintiff, judgment was to be entered for him in the sum of $541.65, with interest from the date of the writ; otherwise, judgment for the defendant.</p>

Complaint to the Police Court of Chelsea, alleging' that the defendant at Chelsea kept and maintained “ a certain common nuisance, to wit, a tenement in said city of Chelsea ” used for the illegal sale and keeping for sale of intoxicating liquors from December 1, 1890, to March 2, 1891.

Indictment, in six counts, on the Pub. Sts. c. 207, § 9, al-, leging in the second count that the defendant on September 25, 1890, at Boston, “ feloniously and unlawfully did use a certain instrument, the name of which and a more particular description of which are to said jurors unknown, by then and there forcing and thrusting the instrument aforesaid into the body and womb of a certain woman, to wit, one Ida C. Stewart, otherwise called Ida C. Stuart, with intent of him,…

<p>Indictment, on the St. of 1887, c. 314, § 1, against the defendant, for having in his possession on February 19, 1891, certain lobsters less than ten and one half inches in length.</p> <p>At the trial in 'the Superior Court, before Braley, J., it appeared in evidence that the defendant was a wholesale lobster- dealer in Boston; that shortly before February 19, 1891, he bought and received in Boston a large number of lobsters, caught in and sent from the British Provinces; that soon after the delivery of the lobsters at his place of business near tidewater in Boston, on or about the last named date, there were found among them two hundred and fifty lobsters, each less than ten and one half inches in length, according to the statute measurement rule; that the defendant immediately upon ascertaining that they were less than the proper length, and after the officer had found them, returned them alive into such tidewater. •</p> <p>The defendant requested the court to instruct the jury that the evidence was not sufficient to warrant a verdict of guilty. The judge refused so to rule, and the jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Constitutional Law — Nuisance — Statute — Water-closet.</p> <p>íhe St. of 1885, c. 382, § 2, as amended by the St. of 1889, e. 450, § 2, providing under a penalty that certain buildings in Boston “ situated on a public or private street, court, or passageway, in which there is a public sewer, and every building connected with any sewer, shall have sufficient water-closets connected with the sewer, and shall not have a cesspool or privy, except where in the opinion of the board of health it can be allowed to remain temporarily, and then only as said board shall approve,” applies to violations which continue after its passage, or which then come into existence, and is constitutional as an exercise of the police power.</p> <p>The Legislature by the use of the word “ water-closet ” in the Sts. of 1885, c. 382, §§ 1,2, and 1889, c. 450, § 2, intended an arrangement, then in common use, connected with a sewer, and having a permanent water supply which can be used systematically and regularly for carrying whatever is deposited therein to the sewer, and not a privy vault, which, although connected with a sewer, has no water supply for flushing it, except such as depends on chance.</p>

<p>Intoxicating Liquors — Complaint and Warrant — Statute — Formal Defects.</p> <p>Under the Pub. Sts. c. 100, § 9, cl. 4, a complaint charging a sale of intoxicating liquor to a minor is good, without averring a delivery of the liquor to him, or any averment to show whether the sale was for his own use or that of his parent, or of some other person.</p> <p>The fact that intoxicating liquor was procured to be used in evidence will not prevent a conviction under the Pub. Sts. c. 100, § 9, cl. 4; the prohibition of the statute includes sales for other uses than as a beverage.</p> <p>Where the record in a criminal case»recited that the defendant was brought before a district court by virtue of a warrant in due form of law, and no objection was made in the district court to the form of the warrant, none is open on appeal in the Superior Court, and an omission to send up a copy of the warrant is immaterial.</p>

<p>Complaint — Gaming — ‘1 Policy ” — Burden of Proof— A ccomplice.</p> <p>A complaint to the “ Municipal Court of the city of Boston, holden at said Boston for the transaction of criminal business within the county of Suffolk,” charging that the defendant on a certain day, “ and on divers other days and times between that day and the day of making this complaint,” at Boston, did keep and maintain a tenement “ then and on said other days and times there resorted to for illegal gaming, and then and on said other days and times there by him used for illegal gaming,” is sufficient.</p> <p>On a complaint for keeping and maintaining a tenement for illegal gaming, it is a question of fact for the jury whether the defendant did or did not keep the tenement during a substantial portion of the time alleged, and whether, if kept by him, it was resorted to for illegal gaming, and whether “ policy ” is a form of illegal gaming.</p> <p>At the trial of a complaint for keeping and maintaining a tenement for illegal gaming, the judge instructed the jury that the Commonwealth must prove, beyond a reasonable doubt, all the essential allegations of the complaint; that they must be satisfied that, during some substantial portion of the time alleged, the defendant kept the tenement in question, and that during such period it was with his consent resorted to and used for illegal gaming; that it was not necessary to prove that the defendant was the owner of the premises, or the one who usually kept them, but that it was sufficient if, for a substantial portion of the time, he had and exercised sole charge, control, and management thereof while they were so resorted to and' used; and that it must be proved, beyond a reasonable doubt, that the defendant personally kept and maintained the tenement in question during some substantial portion of the time specified for the purpose of its being resorted to and used for illegal gaming, defining illegal gaming substantially as requested by the defendant. Held, that the defendant had no ground of exception.</p> <p>One who goes to a house alleged to be kept and maintained for purposes of illegal gaming, and engages in such gaming himself for the express purpose of appearing as a witness for the government against the proprietor, is not an accomplice.</p>

<p>Intoxicating Liquors — Druggist — Sale by Servant to Minor — Evidence of Number of Sales.</p> <p>The register required by the St. of 1887, c. 431, § 3, to be kept by a druggist licensed to sell intoxicating liquors, is not an ordinary writing or a public record, and the number of sales recorded therein may be considered as a fact in the mode of conducting his business, to be observed by a police officer in the performance of his duty of inspecting the register, and may be testified to by him, like any other material fact apparent to an observer, in a complaint charging the druggist with having sold intoxicating liquor to a minor.</p> <p>While the criminal liability of a master for the act of his"servant does not extend so far as his civil liability, inasmuch as he cannot be held criminally for what the servant does contrary to his orders, and without any authority, express or implied, merely because it is in the course of his business and within the scope of the servant’s employment; yet if the act is the master’s because done by the servant within his authority, and especially if it is an act which is made punishable even when done in ignorance of its punishable quality, the master is liable as well as the servant.</p>

<p>Criminal Appeal — Amendment of Record—'Removal of Default — Direction of Plea of Not Guilty.</p> <p>In an appealed criminal case, if there is an error in the copy of the record of the proceedings in the court below, an amended copy may be filed at any time before tlie case is submitted to the jury.</p> <p>It is within the discretion of the Superior Court to refuse to take off a default in a criminal case pending in that court on appeal, and to the exercise of such discretion no exception lies.</p> <p>If a defendant in a criminal case refuses to plead, the court may direct a plea of not guilty to be entered, under the Pub. Sts. c. 213, § 37.</p>

Indictment for an assault upon Emily Barlow, a child of the age of eleven years. At the trial in the Superior Court, before Bond, J., there was evidence tending to show that the offence was committed on the afternoon of Saturday, January 3,1891; that at the time Emily lived with her parents, with whom also lived a Mrs. Rough-sedge ; and that the defendant had a lodging-room in the same house. Mrs. Roughsedge was not called as a witness.

Tort, for personal injuries occasioned to the plaintiff by falling into an open cellar-way on the premises of the defendant.

Tort, to recover for personal injuries sustained by the plaintiff, on September 6, 1889, while employed as a mason by the defendant. Held: — when he appropriates it, when he sets it going towards the job ; because I instruct you that, so far as this case is concerned, the teamster who is carting the stone to the job is engaged in the construction of that wall equally with the mason.

<p>Abatement of Tax — National Bank—Shares of Stock — List of Shareholders.</p> <p>Where, on a petition by a national bank for the abatement of a tax, it was found as a fact from the report of a commissioner appointed under the St. of 1890, c. 127, § 5, that for the purposes of taxation the fair cash value of the shares, at which they are assessable by the Pub. Sts. c. 13, § 8, was their market value as found by him, and a ruling was made that upon the facts the assessors had no right to assess the stock upon the basis of the value as shown by the capital stock, the surplus fund, and the undivided profits, irrespective of other evidence in the case, and that such assessment should be abated as to the excess above the fair cash value found to be the market value as first stated, it was held that the ruling was correct; and that the fact that, after filing unwritten protest in due form, the bank paid the full tax assessed less certain discounts, constituted no bar to a recovery.</p> <p>The word “person,” in the Pub. Sts. c. 11, §§ 69, 71, 72, and the St. of 1890, c. 127, § 1, relating to the abatement of taxes, extends to a corporation.</p> <p>A list, with the name of each shareholder, his residence, and the number of his shares, as required by the Pub. Sts. c. 13, § 11, to be furnished to the assessors of taxes where a bank is located, and where, by § 8, all the shares are to be assessed, satisfies, in the case of national banks, the requirement of the Pub. Sts. c. 11, § 72, which provide that no person shall have an abatement of. taxes unless he has filed with the assessors a list subscribed by him of his estate liable to taxation.</p> <p>Whether, under the Pub. Sts. c. 11, §§ 69, 71, and the St. of 1890, c. 127, which provide for the abatement of taxes, the Superior Court should determine afresh, on the facts and within the limits of its appellate action, what a fair assessment would be, and what, if any, abatement is reasonable, irrespective of what the assessors had or had not a right to do, quaere.</p>

<p>Deed— Covenant to stand seised — Estate for Life.</p> <p>The grantor of land, before marriage with the grantee and in consideration thereof, executed and delivered to her a deed of the land, providing that it should take effect when the marriage was consummated, the grantor to have the use of the land during his life, and the grantee, if she survived him, “ to have the right to use and dispose of the said premises for her comfortable support.” Held, that the deed could be construed as a covenant to stand seised, and supported at least so far as to give to the grantee after the grantor’s death an estate for her life, under which she was entitled to the possession of the premises.</p>

Petition, dated September 17,1890, for partition of real estate in Newbury port. Trial in the Superior Court, without a jury, before Sherman, J., who allowed a bill of exceptions, which, so far as material to the points decided, is as follows.

<p>Will — Determinable Fee — Estate Tail — Executory Devise.</p> <p>A testator, by his will, admitted to probate in 1847, devised to his son J. the improvements, rents, and use of a certain farm for life, and, hy a subsequent clause of the will, gave and devised to his grandson E., “the son of my son J., the farm as hereinbefore described, subject to the life estate therein given to my son J., and subject also to the limitation that, if said E. die without issue, then this devise is to go to other son or sons of my son J., if any there should be, and if not, to the heirs of my son J. forever.” J. died without having any other son, and E. came into possession of the farm, claiming title thereto under the will, and in 1891, never having married or had any children, agreed to sell a portion of the farm. Held, that the devise to E. was of an estate tail, and the devise over if he should die without issue intended an indefinite failure of issue, and was a remainder in expectancy after the estate tail, and not an executory devise; and that as tenant in tail he could give a good title in fee simple.</p>

<p>Written Agreement — Extrinsic Evidence.</p> <p>The owner of land upon a brook entered into a written agreement with the owner of a lot fifty feet wide lower down the brook, by which the upper owner was given the right to enter such lot “ for the purpose of digging out a brook and laying sewer or drain pipes through his said land for the benefit” of his own land, agreeing to hold the lower owner harmless “ against any damage on account of said digging.” Held, on a bill in equity, brought by the lower owner to prevent the other from laying and maintaining drain pipes in a trench dug outside of the brook, that the agreement did not authorize the defendant to lay drain pipes through the plaintiff’s land in any other place than the brook.</p>

<p>Tax — Exemption— Trustee — Salem Marine Society.</p> <p>The property held by the Salem Marine Society as trustee, under the St. of 1889, c. 410, “ for the purpose of erecting and supporting a Bethel church in said Salem for the accommodation of seamen to have the Gospel preached to them,” is not exempt from taxation under the Pub. Sts. c. 11, § 5, cl. 3, or cl. 7.</p>

<p>. Personal Injuries — Collision of Vehicles — Negligence — Contributory Negligence— Law of the Road — Misconduct of Juror — Waiver.</p> <p>If a person hires a hackney carriage from its owner for conveyance to and from a certain place, and gives no directions to the driver furnished by such owner and assumes no control over him, and is injured by a collision with another vehicle through the negligence of such driver, it is no defence to the owner of the other vehicle, in an action brought against both owners to recover for such injuries, that the negligence of the owner of the hackney carriage contributed to the accident.</p> <p>In an action for personal injuries resulting from a collision with a vehicle being driven upon the wrong side of the highway in violation of the law of the road, instructions to the jury are correct, that it is a question of fact whether under all the circumstances the driver’s being there is negligence; that the fact that he was upon the wrong side of the way was evidence tending to show that he was in fault, but was not conclusive; and that it was a question upon all the evidence whether or not his being upon the wrong side of the way was negligent, that being a circumstance.</p> <p>If the fact that a juror at a trial takes notes of the evidence and carries them into the jury-room affords a defendant a valid ground of complaint, it is disposed of by a finding of the presiding judge that it had been waived by the defendant.</p>

<p>' Assumpsit—Professional Services — Evidence.</p> <p>In an action for professional services rendered in performing a surgical operation upon the defendant's wife, on the issue whether the plaintiff was responsible for the negligence of the nurses in the hospital where the patient was attended after the operation, it is competent to show that the plaintiff was not the proprietor or manager of the hospital, but that it was in charge of a sisterhood; and it is immaterial that the patient supposed it to be the plaintiff’s private hospital, neither the plaintiff nor any one acting for him ever having made any representation to that effect.</p> <p>In an action to recover for professional services as a physician, another physician was asked, as bearing on the question of the reasonableness of the plaintiff’s charge, whether he knew the plaintiff’s standing as a physician, but it did not appear that the witness testified in regard to it, and at the close of the evidence the defendant’s counsel admitted the reasonableness of the plaintiff’s charge if he used proper care and skill. Held, that the defendant had no ground of exception.</p>

Contract, to recover a deposit made by the plaintiff, under ati agreement of the defendants to convey to him a parcel of land with a good and clear title, or, failing that, to refund to him the deposit. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this, court, on agreed facts, the substance of which appears in the opinion.

<p>Defective Highway— Personal Injuries — Loss of Life — Actions by Administrator— Object frightening Horse — Proximate Cause.</p> <p>A notice, under the Pub. Sts. c. 52, § 18, stating that a person has been injured by a defect in a highway, the defect and cause of the injury being “large stones extending about six feet into the travelled part of said way, . . . piled within the travelled way in such grotesque and unusual shape that they constituted a nuisance by their liability to frighten horses,” is insufficient to support an action for personal injuries caused by a collision with the pile of stones, in the absence of evidence, as required by the St. of 1882, c. 36, as amended by the St. of 1888, c. 114, in cases of defective notice, that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby.</p> <p>The administrator of a person injured by a defect in a highway, who after an interval dies of his injuries, may maintain an action, under the Pub. Sts. c. 62, § 17, to recover for the injuries for the benefit of the estate, and at the same time a second action, under § 18, for the loss of life for the benefit of the widow or children or next of kin of the deceased.</p> <p>In an action under the Pub. Sts. c. 62, § 18, against a city for injuries caused by a defect in a highway, the ground upon which the plaintiff sought to recover was that a horse driven by her shied at a pile of stones in the way, and sprung to the opposite side of the road, so that one of the wheels of the carriage scraped against a stone in another pile there, making a loud noise, but not diverting the carriage from its course, or causing it to tip, or in any way disturbing its equilibrium ; and that the horse was frightened at the noise, and started up, and, after trotting a short distance and going between trotting and running, broke into a run, and in turning a corner into another street "threw her out and caused the injury. There was evidence that the street into which the horse turned led to the stable where it was kept, and that it had an inclination to turn into such a street, so that it was difficult to restrain it from so doing. Held, that the question whether the grating of the carriage wheel upon the stone was the proximate and sole cause of the accident was, even if the horse was frightened by it, properly submitted to the jury.</p> <p>A city is not liable, under the Pub. Sts. c. 62, § 18, for an injury caused by the fright of a horse at a noise produced by the contact of a wheel of a vehicle with a stone in a street.</p>

<p>Personal Injuries — Railroad Passenger — Negligence.</p> <p>The plaintiff, a woman, was a passenger on the defendant’s railroad, arriving in Boston about eight o’clock in the morning. On the station platform was a movable baggage truck or platform about thirty-seven feet long and seven feet wide, the top of which was on a level with the car platforms. This truck rested on wheels, and ran on an iron track parallel with the rails on which the train arrived, so that its edge was very near the sides of the cars. The train was brought.to a stop in such a position that the forward end of the plaintiff’s car was opposite to the truck, so that passengers getting out there would be obliged to step upon it. The plaintiff, with most of the other passengers in the car, got off the forward end of the car on to the truck, and in passing along fell off from it and was injured. Soon after the accident the truck was rolled along towards the end of its track, in the direction in which the plaintiff’s train had been going. Held, that the question whether it was negligence for the defendant to have the truck where it was, and to stop the plaintiff’s ear opposite to it, was a question of fact for the jury.</p> <p>There was evidence that the plaintiff had never come into the station on that train before, but had been accustomed to come in on another track, and to be left in another part of the station; that the car was full of passengers, and that, when it stopped, they were all standing up in the aisle ready to get out; that she was near the middle of the ear, eight or ten being before her and many others behind her, all going forward to get off as quickly as they could; that those before her got upon the truck, which she supposed to be the platform of the station; and that she followed them, and after taking two or three steps upon the truck fell off at the side of it. She was a German, and she testified that she had seen in Germany and other countries high platforms for passengers in railroad stations. She had in her hands some books, a parasol, and other things. Another lady who got off there testified that she stepped down one step in the flight of steps leading from the car, and stepped right to the platform from the step of the car, and that “it was easier if anything than to get on to the regular platform.” Held, that the question whether the plaintiff was in the exercise of due care was for the jury.</p>

<p>Tort, for personal injuries sustained by the plaintiff in a railroad collision on January 19, 1889, near St. Johnsbury, Vermont. At the trial in the Superior Court, before Dunbar, J., the defendant admitted its liability to the plaintiff, and the only question was one of damages. On the issue as to what had been the income of the plaintiff, who was a physician in St. Johnsbury, the judge excluded certain evidence offered by the defendant; and, after a verdict for the plaintiff, the defendant alleged exceptions. The nature of the evidence appears in the opinion.</p>

Contract, by the Treasurer of the Commonwealth, to recover for the support of Catherine Callahan, an insane pauper, in a State lunatic hospital, from October 10, 1887, to Septemr ber 30, 1889.

<p>Tort, for negligently allowing a sewer to be choked so that sewage flowed through a connecting drain into the plaintiff’s cellar. Trial in the Superior Court, before Sherman, J., who ordered a verdict for the defendant; and the plaintiffs alleged exceptions, which, so far as material to the point decided, appear in the opinion.</p>

<p> Application of Payments by Creditor. </p> <p>A creditor receiving payments from his debtor, without any direction as to their application, may appropriate them to any legal debt which he holds against the debtor.</p>

<p>Tort — Master and Servant — Defective Appliances — Knowledge of Defect — Risks of Employment.</p> <p>A servant cannot be said to take the risk of working with defective appliances unless he knows not only the condition of things, but also that danger exists in such condition; if, however, the danger is obvious, knowledge of the condition of things only need be shown.</p> <p>A seaman on a fishing schooner was injured by being struck by a rope, which parted while an attempt was being made to ease the strain on a cable which, on account of the defective condition of the windlass, had become fast. He was of full age, and had been to sea for many years on vessels of the same kind, equipped with similar appliances, and had observed the condition of the windlass before entering upon the voyage. Held, in an action against the owner to recover for the injuries, that the danger was obvious to a person of the plaintiff’s experience; and that an instruction that, if he knew all about the construction of the windlass, he took the risks of the employment, was correct.</p>

Tort, for personal injuries occasioned to the plaintiff, by his falling under a horse car belonging to the defendant. At the trial in the Superior Court, before Aldrich, J., it was admitted that the defendant was a common carrier of passengers for hire by street cars in Boston.

<p>Contract, against the defendant as indorser of the following instrument, the printed words being in Roman, and the written words and figures in Italic letters.</p> <p> </p> <p>This instrument bore upon the back the following indorsement : “ George H. Towle.” Writ dated October 3, 1889.</p> <p>At the trial in the Superior Court, without a jury, before Bishop, J., it appeared in evidence that the above instrument was made out upon the ordinary printed form of bank check of the National Revere Bank, and was signed by Samuel W. Creech, Jr., and indorsed by the defendant to the plaintiff before maturity; that Creech did not pay the same on October 1,1889, and on that day it was duly presented at the bank for payment, and payment was refused, and on the same day it was duly protested and notice of non-payment given to the defendant; and that no other notice was given to the defendant.</p> <p>The defendant requested the court to rule that the instrument declared on was not a check, but was a bill of exchange; that it was entitled to days of grace; that payment of the same should have been demanded on October 4, 1889, and notice of non-payment on that day should have been given to the defendant ; and that upon all the evidence, the plaintiff, as matter of law, could not recover. The judge declined to rule as requested, but ruled that the instrument or exhibit declared on was a check drawn upon a bank; that it was not entitled to days of grace; and that upon all the evidence the plaintiff was entitled to recover.</p> <p>The judge found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract, with a count in tort, for the conversion of seven fish tanks. At the trial in the Superior Court, without a jury, before Barker, J., it appeared that the plaintiff, through the act of the defendant’s servant, and without the knowledge of the defendant, caused the tanks to be placed in the defendant’s place of amusement in Boston, called the World’s Museum; that when the defendant learned that the tanks were there, he made several unsuccessful attempts to get the plaintiff to re. move them, but they had not been removed when the defendant sold the World’s Museum to one Austin, giving him a bill of sale of “all the property now in the World’s Museum,” excepting a piano and some trifling articles, but making no mention of the tanks; and that thereupon the defendant left the premises, and since then had had nothing to do with them. Austin testified that he never saw the tanks, and had never had them called to his attention, nor had he ever made any claim to them specifically ; but that, speaking generally, he claimed to be entitled to whatever was in the World’s Museum at the date of the bill of sale, and not excepted therein. The defendant introduced evidence that at the time of the sale he told Austin that he did not own and did not sell these tanks, and some other things; but Austin testified that all the articles mentioned in the conversation and not to be sold were expressly excepted in the bill of sale.</p> <p>The defendant asked the judge to rule that there was no evidence of a conversion by the defendant, and that upon the evidence the plaintiff could not recover. The judge refused so to rule, and ruled that upon the evidence the plaintiff was entitled to recover upon the count in tort, and on this count found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract upon two promissory notes, signed by Charles A. Kimpton and Alonzo Kimpton, copartners. At the trial in the Superior Court, before Mason, C. J., it appeared that the defendant Charles A. Kimpton before signing the notes in question was in partnership with one Blount, under the style of Blount and Kimpton, and that the firm of Blount and Kimpton became insolvent, and settled with its creditors, among whom was the plaintiff, by a composition. The defendants contended and introduced evidence, which was contradicted, to show that the notes in question were given to the plaintiff for the purpose of securing to him payment in full of his claim against Blount and Kimpton, in pursuance of a secret understanding and agreement made between the plaintiff and the defendants before the plaintiff executed the composition agreement.</p> <p>The defendants called as a witness Charles C. Barton, an attorney at law, who testified that he acted as counsel for the plaintiff and Blount in the negotiations which resulted in the composition, in the dissolution of the firm of Blount and Kimpton, and in the execution of the notes in suit; that he had testified as a witness for the plaintiff, at a former trial of this action in the lower court, where it was tried together with another action, in regard to the above mentioned transactions. The defendants then asked him the following question : “ State the conversations you had with the plaintiff at which the defendant Charles A. Kimpton also was present, at the time of the transactions of the dissolution of the firm of Blount and Kimpton and the compromise with their creditors, so far as such conversations related to the payment of the plaintiff’s claim on the insolvent firm.” The judge ruled that these conversations with counsel were privileged communications, and excluded the question, but admitted other testimony as to what was said by Blount.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>Landlord and Tenant — Personal Injuries — Noxious Odors.</p> <p>In an action brought by a tenant at will against his landlord, for injuries sustained in consequence of noxious odors emanating from a disused privy vault in the yard of the demised premises, it was not disputed that the evidence would warrant the jury in finding that the existence of the vault was not known to the plaintiff, or disclosed to him before the injury, and was not discoverable by the exercise of due care, that he exercised due care, and that his injuries were caused by such odors. There was evidence that the yard, except a narrow strip, was boarded over at the time of the plaintiff’s hiring in December, 1888, including a portion about five by six and a half feet slightly elevated above the rest of the yard; that in June, 1889, odors from the place so elevated made the plaintiff and his family ill, and in the following month his infant child contracted diphtheria and died; that upon taking up the boards from this place there was found an old privy vault filled with fecal matter and stagnant water; that in this place as early as June, 1886, there had been a privy shed with an excavation beneath, and in September of that year the board of health notified the defendant that the vault should be cleaned; that shortly afterwards the shed was removed, and the vault, after a small barrel of lime had been put into it, boarded over; and that the odors continued to come from the place from July, 1886, until it was filled in July, 1889. The plaintiff offered the testimony of an inspector of the board of health, who examined the vault in August, 1886, to show what its condition then was, and also asked a neighbor who moved into a house near by in July, 1886, “ After you moved there, did you have any trouble from offensive odors from that old vault 1 ” and “ Did you, within six months after you moved, have any trouble from offensive odors from this old vault 1 ” but the testimony and questions were excluded. Held, that the evidence was improperly excluded.</p> <p>There was also evidence that the person who let the premises for the defendant to the plaintiff pointed out one H. to the plaintiff, at the time, as the one to apply to for repairs or anything else about the premises; that the plaintiff did so apply to H. on three different occasions, and in each instance what the plaintiff requested was done by H. or under his supervision; that what was done to the vault in 1886 was done by H., assisted by a laborer; that H., both before and after doing this work, was about the premises making repairs; and that soon after the plaintiff complained of the odors, in 1889, the vault was filled by H., assisted by others. The plaintiff testified that soon after the first trouble from odors was experienced, and before the vault was discovered, he had a conversation with H. in regard to the odors. He was then asked, “ What was that conversation t ” and, “ Did you tell H. of the existence of the odors ? ” and both questions were excluded. Held, that the questions were improperly excluded; and that the plaintiff on the evidence admitted and offered was entitled to go to the jury.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by being thrown off a horse car belonging to the defendant and run over. Trial in the Superior Court, before Dunbar, J., who ruled on the evidence that the plaintiff could not maintain the action, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Insolvent Debtor— Composition Act — Discharge — Written Lease — Rent.</p> <p>A mere discharge in insolvency, obtained under the composition act (St. 1884, c. 236) does not operate to release the debtor, by force of the Pub. Sts. c. 157, § 26, from rent accruing under a written lease subsequently to the date named in the discharge.</p>

Tort for personal injuries. Trial in the Superior Court, before Hammond, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

<p>Larceny — Evidence for the Jury.</p> <p>On a complaint for the larceny of a watch from the person, the evidence tended to show that the owner, while standing in a crowd of people near the defendant, immediately after looking at his watch, which he carried in his waistcoat pocket attached to a chain, felt a tug at the chain and a little motion near the pocket; and that he saw the chain drop, and the defendant’s hand then near the pocket, go down quickly by the defendant’s side and behind him or partly so. Held, that a finding was warranted that the watch was stolen, and that the defendant was the thief.</p>

<p>Will — Devise in Trust — Residuary Clause.</p> <p>A testator, by his will, created a trust fund for the benefit of eight nieces, each of whom was to receive one eighth of the income during her life, providing upon the death of any niece that “the eighth part so bequeathed to her shall be thereafterwards paid over or held in trust for my grandchildren, in the manner provided hereinafterwards as to the residue of my estate.” The residuary clause directed that “ all the rest, residue, and remainder ” of his “ property, as also the remainders after the termination of the aforegoing life estates and interests,” be “ held in special trust ” for his two granddaughters, who were sisters, “ the whole of the trust fund ” for one of them being described in one place as “ one half of my whole estate,” and the portion which the issue of one was to receive upon the death of the other without leaving a will or issue as “ the other half part of the trust estate.” Each grandchild was given the power to dispose of the share held in trust for her. After the death of three of the nieces, one of the granddaughters died without issue, having exercised her testamentary power of disposal, and subsequently another of the nieces died, leaving the other granddaughter her surviving. Held, that one half of the eighth held in trust for the niece who died last passed to the devisees of the deceased granddaughter, instead of being held in trust for the surviving granddaughter.</p>

<p>Insolvent Debtor — Collection of Taxes — Suit by Collector — Equity Practice and Pleading — Parlies defendant —Multifariousness.</p> <p>A collector of taxes cannot maintain a bill in equity in his own name, under the St. of 1889, c. 334, § 7, to collect a tax, without averring that the tax had remained uncollected for three months after its committal to him.</p> <p>A judge of insolvency and a register- of insolvency, as well as the assignee of an insolvent debtor under an assignment at common law for the benefit of creditors made before the beginning of insolvency proceedings, are improperly joined as defendants, in a bill in equity under the Pub. Sts. c. 157, § 15, to vacate such proceedings.</p> <p>A bill in equity, which attempts to deal with property of an insolvent debtor transferred by him for the benefit of his creditors by an assignment at common law, and which also seeks to annul and set aside composition proceedings subsequently entered into by the debtor in the insolvency court, is multifarious.</p>

<p>Petition in equity, under the St. of 1890, c. 304, by a foreign insurance company, to determine whether the petitioner was illegally issuing certain forms of policies, as notified by the respondent insurance commissioner. Hearing before Holmes, J., who reserved the case for the consideration of the full court, upon the questions whether the petitioner was lawfully authorized to issue the policies complained of, and whether the judge had a right thus to reserve the case for the consideration of the full court. The facts so far as material appear in the opinion.</p>

<p>Bill in equity, filed in this court under the Pub. Sts. c. 157, § 15, to set aside a composition with creditors and a discharge in insolvency. At the hearing, before Allen, J., the following facts appeared in evidence.</p> <p>The defendants, who were partners, filed, on December 31, 1889, a petition in insolvency, and together therewith filed a proposal for a composition with their creditors, to be paid in cash and in notes to be indorsed by their respective wives. Various hearings were had on this proposal, and claims proved by creditors, including the plaintiff. The plaintiff in the Court of Insolvency urged various objections to confirming the composition, but the judge of insolvency on July 24,1890, made a decree confirming the proposal, and ordering the payment into court within thirty days of a large sum of money, and of the notes so indorsed. This payment was made on August 23, 1890, and distribution thereof at once made among the creditors. The plaintiff and two other creditors refused to accept their shares respectively, and the plaintiff, on November 17, 1890, filed this bill. At the hearing he offered no evidence as to his reasons for the delay, but urged the same objections as in the Court of Insolvency.</p> <p>The judge dismissed the bill on the sole ground that the plaintiff had been guilty of such loches as to debar him from maintaining the same; and reported the case for the consideration of the full court.</p>

<p>Will—Gift to a Class — Right of Representation.</p> <p>Gifts were made in different clauses of a will to “all my first cousins on my father’s side,” “all my first cousins on my mother’s side,” and “all my first cousins,” without more. Held, that those entitled to take under the will were (1) the first cousins living at the death of the testator, and, (2) by force of the ! Pub. Sts. c. 127, § 23, the issue of first cousins who died between the making of the will and the death of the testator.</p>

<p>The first CASE was a bill in equity, filed in the Superior Court by Gardner P. Ladd, executor of the will of Ann L. Chase, against the administrator de bonis non with the will annexed of Thomas H. Chase, and the legatees under the will of .Mrs. Chase and others, as a bill of interpleader, and for instructions respecting the disposition of certain savings bank deposits in the plaintiff’s possession. The second case was a bill in equity, also filed in the same court by such administrator against such executor, to obtain possession of the deposits. The cases were heard in the Superior Court, and in this court, on appeal, on the report of a master to whom both cases were referred, and on exceptions thereto.</p> <p>The master found the following facts. Thomas H. Chase died on January 3, 1869, and by his will, which was duly admitted to probate, appointed his wife, Ann L. Chase, as executrix, and provided, after the payment of his debts and funeral expenses, as follows:</p> <p>“Second. All the rest and residue of my estate, real, personal, or mixed, of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, I give, devise, and bequeath to my beloved wife, Ann L. Chase, to her use and behoof forever. Provided, however, that’my said wife shall cause to be erected on my lot in Merrimac Cemetery in said West Newbury a handsome marble monument, worth at least five hundred dollars. Also, to put the monument now standing on my lot in said cemetery on the lot where Jane Jaques is buried. All to be paid for by. my said wife out of the estate which I have given to her. Provided also, that if any of the property which I have given my beloved wife aforesaid shall not have been expended by her for her support and maintenance during her lifetime, then and in that case my will is that so much of said estate as shall remain unexpended at the time of her decease shall be disposed thereof in manner following, to wit.” Then followed bequests to certain persons, “ to their own use and behoof forever.”</p> <p>The estate of Thomas H. Chase, after paying his debts and funeral charges, and providing for the monument mentioned in the will, consisted of a parcel of land with a house thereon, a farm, and woodland, worth about $1,000, $3,000, and $250, respectively, and personal property amounting to $1,149.62. The income of this estate was insufficient to support the widow, who had no other means of support, and on April 6, 1870, having used for that purpose a part of the personal estate, cutting it down to $1,000, she made a conveyance whereby, in consideration of $2,650 paid by the grantees, she did “ remise, release, and forever quitclaim unto the said” grantees, “their heirs and assigns, a certain tract or parcel of land,” describing the farm by metes and bounds, “ to have and to hold the above released premises, with all the privileges and appurtenances to the same belonging, to the said” grantees, “their heirs and assigns, to their use and behoof forever.” The farm was at this time run out and greatly depreciated in value, and the price was all that it was fairly worth; the house on it was an old one, in poor repair, and requiring some alterations to make it rentable, and the sale was in all respects an advantageous one for the estate. The administrator de bonis non was permitted to testify that the widow told him at the time of the sale that the farm afforded her no income, that she could not improve it or carry it on, and wanted to sell it and invest the proceeds. The master found that the widow “ understood that she derived her authority to sell said farm from the will of her husband, and that she sold and conveyed said farm because the income of her real and personal estate was insufficient to provide for her support and maintenance during her lifetime; and that, whatever may have been her understanding or intention for the future, this sale and conveyance was made by her in strict execution of the power given her by the aforesaid will.”</p> <p>Ann L. Chase died on June 29,1889, leaving a will, by which, after pecuniary legacies amounting to $1,900 to various relatives, she gave to Gardner P. Ladd the residue of her estate, and appointed him her executor.</p> <p>At her death she had $1,000 on deposit in various savings banks, being the personalty remaining from her husband’s estate, the $2,650 received from the sale of the farm, and the accrued interest on both these sums, except so far as used for her support. Ladd has the deposit-books in his possession, one of which stood in the name of “ Ann L. Chase, trustee for Gardner P. Ladd,” and another in the name of “ Ann L. Chase, in trust for Joseph S. Noyes,” the latter showing a deposit for $300 and accrued interest. This deposit was made by her with the intention that the deposit should become the property of Noyes upon her death, in return for services which he had rendered her during her lifetime.</p> <p>The questions raised by the report and the exceptions were, what was the nature of the interest which Mrs. Chase took in her husband’s estate; whether the conveyance of the farm was an execution of the power given her under the will, or whether it operated as a conveyance of her life interest alone; and whether, with the exception of the $300, which it was agreed belonged to Joseph S. Noyes, the rest of the funds in her possession at her death should go to the administrator de bonis non of her husband’s estate, or partly to him and partly to her executor.</p>

Bill in equity, filed in this court by the executors of the will of Nancy D. Cole, for instructions as to the disposition of a legacy. Hearing before Holmes, J., who reported the case for the consideration of the full court, in substance as follows. The testatrix in her will provided, among other things, as follows: “ 4.

Libel for a divorce, filed in this court on February 23, 1886. Answer, a denial of the marriage. Hearing before Devens, J., who reported the case for the consideration of the full court, in substance as follows.

<p>Contract to recover for aid furnished by the plaintiff town to Charles D. Mann, a pauper, alleged to have a settlement in the defendant town. Trial in the Superior Court, before Barker, J., who ordered a verdict for the defendant, and reported the case for the determination of this court. If the case should have been submitted to the jury upon the evidence admitted, together with any evidence offered by the plaintiff and improperly excluded under exception, the verdict was to be set aside and a new trial ordered; otherwise, judgment on the verdict. The nature of the evidence appears in the opinion.</p>

<p>Petition to the Probate Court, brought in the name of Elizabeth Gray, by Maria Murdock and Mary E. Gray, described respectively as “ a neighbor and next friend ” and “ a niece and next friend ” of the petitioner, for the removal of George W. Parke, the guardian of the petitioner, as being “ an unsuitable person to act as such guardian.” Hearing in this court, on appeal from a decree of the judge of probate removing the guardian, before Morton, J., who affirmed the decree; and the respondent alleged exceptions, which appear in the opinion.</p>

<p>Taking of Water Power — Damages — Evidence.</p> <p>On the assessment of damages for the taking by a town of the water power of a combined steam and water mill, after the mill-owner had been allowed to show the cost of furnishing steam power equivalent to the water power taken, the town was allowed to show the cost of an engine which would furnish more power than both the old engine and the proposed new one, and be more economical to run. Held, that the evidence was properly admitted.</p> <p>At the trial of a petition for the assessment of damages for depriving a mill of its water power upon the taking of the waters of a great pond by a town for a water supply, the mill-owner, for the purpose of showing that the water from the great pond was colder than the other waters coming to his mill pond, offered evidence of observations of the temperature of the water in the great pond, and in and about the brooks, meadows, and other ponds in the water-shed between that pond and his mill, made nearly six years after the town had taken the waters of the great pond. No evidence had been offered to show that the relative temperature of these different waters in respect to each other would be the same in the winter when the observations were made as at the time of the taking by the town, or in the average of years. Held, that the evidence might properly be excluded in the discretion of the presiding judge.</p>

<p>® Innkeeper—Sale of Adulterated Milk — Master and Servant.</p> <p>A hotel keeper, who sells milk to his guests to be drunk by them on his premises, may be convicted of an offence under the St. of 1886, c. 318, § 2, if the milk so sold is not of the required standard of quality.</p> <p>If a sale of milk, which is not of the required standard of quality, is made by a hotel keeper’s servant, in the ordinary course of his employment, to a guest to be drunk on the premises, the hotel keeper will be responsible therefor, under the St. of 1886, c. 318, § 2, though he was not present and did not consent to or know of the particular sale.</p>

Contract, to recover for the use of a party wall. At the trial in the Superior Court, without a jury, before Mason, C. J., the following facts were agreed. On April 18, 1874, Eliza H. Pease and Frances A. Burt, be. ing owners of adjoining tracts of land on Worthington Street, in Springfield, entered into an agreement under seal, which was duly acknowledged and recorded, as follows: “It is agreed for valuable considerations moving between the parties as follows.

<p>Personal Injuries—Railroad — Negligence — Brakeman — Fellow Servant.</p> <p>Gravel cars, employed in hauling out stones from a pit, were loaded by means of a swinging box and derrick, resulting in the occasional breakage of a brake-head. Upon the cars being assorted, those containing small stones were kicked on to a side track. One Monday morning a car stood alone on this track, its brake without a brake-head and not set, and the wheels not chocked. Other cars came along the track, and as a brakeman tried to couple them, pushed the stationary car along three or four feet,'and in walking along between the cars he was hurt. Usually such a car with a defective brake was kept with the engine or coupled with other cars, or if left by itself the wheels were chocked; and if a car became obviously dangerous, it was the duty of the workmen to set it one side. A car repairer, who had been coming to the place twice a week, was last there on the Friday before. In an action at common law by the brakeman to recover for his injuries, he testified that he saw a car in the pit without a brake-head on Friday or Saturday, but whether it was this car did not appear. Held, that the negligence, if any, was that either of the plaintiff or of fellow servants, and that the action could not be maintained.</p>

<p>Bill in equity, filed in the Superior Court, to redeem land from a mortgage. The Superior Court entered a decree that the plaintiff was entitled to redeem, and to be subrogated to the defendants’ rights in a certain other mortgage, with costs to the plaintiff; and the defendants appealed to this court. The facts, so far as material to the point decided, appear in the opinion.</p>

<p>Indictment — A utrefois A cquit — Presumption.</p> <p>The mere fact that, in a former indictment for larceny, the description of the things alleged to be stolen was such that the evidence warranting a conviction thereon may also be sufficient to warrant a conviction of larcenies charged in two later indictments, does not of itself raise a presumption that the former offence was the same, so as to support a plea of former acquittal, without further evidence of their identity, especially where in both the later indictments the number of things charged as stolen, and the time of the alleged larceny, differ from the averments of the former indictment, and in one of the later indictments the averment of place also differs.</p>

<p>Bill in equity, filed in the Superior Court, by the executors of the will of John B. Faulkner, for instructions as to whether the National Sailors’ Home or the Boston Ladies’ Bethel Society was entitled to a fund in their hands. Hearing before Morton, J., who, after a decree for the Boston Ladies’ Bethel Society, reported the case for the consideration of the full court, such decree to be entered as law and justice might require. The facts appear in the opinion.</p>

<p>Writ of Entry — Death of Demandant — New Demandant — Exceptions — Judgment for undivided Parts—Conveyance of Easement — Evidence of Pedigree — Presumption — Issue — Death.</p> <p>The widow of a demandant who died pending a writ of entry was held to be properly admitted as a demandant in his stead, under the Pub. Sts. c." 173, § 11, and c. 165, § 15; also the heir of such widow, upon her dying thereafterwards, and before the trial.</p> <p>A ruling based upon an assumption found by the trial court to be erroneous affords no ground of exception.</p> <p>On a writ of entry brought by several demandants, it is not essential that the court should find, or the judgment state, the amount of the undivided interest in the premises to which the individual demandants are respectively entitled.</p> <p>Instruments under seal, by which the grantor quitclaims to the grantee, his heirs and assigns, “ one half of the privilege of the fishing place at the Lower Sands, so called," were held not to be conveyances of any part of the fishing place in fee, but of easements therein, or rights of fishery merely.</p> <p>On a writ of entry alleging the demandants’ seisin in the usual form, various deeds to their ancestor were held to be admissible in evidence to prove that the demand-ants were tenants in common.</p> <p>Upon the question whether a person dying in 1789 left issue, it was held that a granddaughter born in 1833 of his step-daughter who resided in his family until his death was competent to testify as to general repute in the family as to matters of pedigree; and that the presumption was that her testimony that he “ left no issue,” and that “ she never heard that he was twice married, and never heard” that his first wife “ever had any children,” was, in the absence of anything to show the contrary, responsive to proper interrogatories.</p> <p>There is no presumption in law either of marriage or of birth of issue.</p> <p>On the issue whether a person born in 1736 was living when a deed was made in 1810, evidence that bis father who died testate in 1777 mentioned in his will all his children save this son, and that unsuccessful inquiry was made where it was probable that information of him could be found if he was alive at the time in 'question, is, in the absence of evidence to the contrary, sufficient to warrant a finding that he was then dead.</p> <p>Evidence of family repute that a person died without issue, and of the giving of deeds to his land after his death by his collateral heirs, is, in the absence of evidence to the contrary, sufficient to warrant a finding that he died without issue.</p>

<p>Certiorari — Answer of County Commissioners — Evidence of Value— Cross-examination.</p> <p>The answer of county commissioners to a petition for a writ of certiorari should at least set forth a copy of their record, to which they may, if they see fit, add a return or certificate of their rulings and of the facts proved so far as essential, which, as well as the record, will be conclusive as to matters of fact within their jurisdiction passed upon by them; they may besides allege and prove extrinsic facts to show that substantial justice does not require the quashing of their proceedings, and such allegations may be traversed.</p> <p>After a case has been tried to the end by county commissioners upon incompetent evidence, and a decision rendered, and a petition presented for a writ of certiorari to quash the proceedings by reason of the admission of such evidence, no conclusive effect should be given to a statement, then for the first time made in answer to such petition, that after all the evidence was disregarded by the county commissioners.</p> <p>A statement in an answer made by county commissioners to a petition for a writ of certiorari to quash their proceedings in refusing to abate a tax, that all their doings and rulings were correct and legal, and that they did not err in law, either in admitting or excluding testimony or in refusing to make any abatement as alleged by the petitioner, and the further statement that certain evidence, admitted against the petitioner’s objection, was disregarded in their final consultations and in their determination, and did not affect the result at which they arrived, is not conclusive upon the petitioner.</p> <p>Where the value of a particular parcel of real estate is to be determined, recent sales of other similar lands in the vicinity may be shown, but only when they are similar; the mere opinions of other persons, even though assessors of taxes, as to the value of other land in the vicinity, are not admissible.</p> <p>On a petition to county commissioners for the abatement of a tax on real estate, the admission of incompetent evidence, against the petitioner’s objection, of sales of land at a distance not resembling the petitioner’s land, and of a list of appraisements of the real estate of several deceased persons made by appraisers appointed by the Probate Court, was held to be too extensive and important to he justified under the guise of cross-examination, or of giving reasons for the witnesses’ opinion of value, and, together with other incompetent evidence received by the commissioners, also against the petitioner’s objection, to be so great in amount and importance as to lead to the conclusion that injustice was done the petitioner; and that the proceedings should be quashed, and a writ of certiorari issue.</p>

Tort, to recover for injuries occasioned to the plaintiff by driving over a curbstone covered with snow in a private way eon trolled by the defendants. At the trial in the Superior Court, Mason, C. J., at the defendants’ request, ruled that, upon the pleadings and the plaintiff’s opening, he could not maintain the action, and ordered a verdict for the defendants; and the plaintiff alleged exceptions. The facts, so far as material to the points decided, appear in the opinion.

<p>Personal Injuries — Master and Servant — Dangerous Machinery—Due Care.</p> <p>A boy nineteen years old, of average intelligence and capacity but unable to speak the English language, was employed in a cotton mill, and his duty was to feed cotton between two steel rollers in plain sight, immediately behind which revolved, under cover of an iron box, an iron frame called a beater, at the rate of twelve hundred revolutions a minute. The cotton clogged the rollers, and he inserted his hand between them to remove it, whereupon his hand was rolled in and a part of it cut off. He knew that when the cotton was removed the rollers were likely to start up, and, though he had not seen the beater in motion, he had seen it at rest and knew it revolved in close proximity to the rollers. It was no part of his duty to clean the rollers when they became clogged. Held, that he could not recover of his employer for his injuries.</p>

<p> Marriage. </p> <p>A man and a woman, whose domicil was in California, agreed in Oregon to live together “ so long as mutual affection shall exist,” and thenceforwards cohabited and held themselves out to be husband and wife in those States, and in Iowa, New York, and this Commonwealth. Held, that this agreement was not a marriage contract by the law either of California or of Oregon, and that such cohabitation did not constitute a marriage in any of the above mentioned States.</p>

Replevin by a mortgagee of a horse, buggy, and harness. At the trial in the Superior Court, before Hammond, J., there was evidence that the defendant was the keeper of a livery stable in Malden, at which the horse had been boarded by the mortgagor, in whose possession it had been left after the execution of the mortgage, and that he claimed a lien upon it for his charges under § 32 of chapter 192 of the Public Statutes.

Appeal by Edward Sumner from a decree of the judge of probate for Norfolk County, admitting to probate certain instruments purporting to be the last will and a codicil thereto of Sallie Richards Sumner, in which Samuel Crane was named as executor. The case was tried in this court, before Holmes, J., who affirmed the decree, and reported the case for the determination of the full court as follows.

<p>Contract to recover double term fees imposed by the Superior Court upon the defendant as terms for filing answers and demurrers in four actions at law pending against him. A demurrer to the declaration was sustained; and the plaintiff appealed to this court. The facts appear in the opinion.</p>

Tort, for malicious prosecution. Trial in the Superior Court, before Braley, J., who allowed a bill of exceptions, in substance as follows.

Tort, for personal injuries occasioned to David L. Marks, the plaintiff’s intestate, by a collision at a crossing at grade of a highway by the defendant’s railroad, in that part of Boston called Charlestown. Trial in the Superior Court, before Bun-bar, J., who allowed a bill of exceptions, in substance as follows. The evidence tended to prove the following facts.

Bill in equity, filed in the Superior Court on February 8, 1890, to set aside a sale under a power in a mortgage of land in Fall River, and to redeem the land from the mortgage. The case was heard by Sherman, J., who dismissed the bill; and the plaintiff appealed to this court. The facts, so far as material to the points decided, appear in the opinion.

<p>Writ of entry, to recover a parcel of land in Randolph. The tenants pleaded nul disseisin, and for further plea alleged that, if the demandant had any right or interest in the demanded premises, the same was conveyed to her by Henry W. Bragg, the assignee in bankruptcy of one Campbell; that this action was against persons claiming an adverse interest touching the property vested in said assignee, and was not brought within two years from the time when the cause of action accrued; and that the same was barred by the provisions of the statutes of the United States. Trial in the Superior Court, before Bishop, J., who reported the case for the determination of this court, in substance as follows.</p> <p>It appeared from the opening statement by the counsel for the demandant, that Campbell filed his petition in bankruptcy on February 23, 1876; that he was duly adjudicated a bankrupt; that Mr. Bragg was duly appointed the assignee, and an assignment of the estate of the bankrupt made to him on or about March 30, 1876; that the premises in question were a part of the estate of the bankrupt, and passed to the assignee by the assignment; and that the demandant claimed title to the premises under a deed from the assignee, dated January 24, 1889, and made pursuant to authority obtained from the United States District Court.</p> <p>It further appeared that the assignee had never entered upon or been in possession of the demanded premises until the time of the delivery of the deed to the demandant, when entry was made upon the premises by the attorney of the assignee, and the deed delivered upon the premises; and that the tenants and their ancestors had been in the possession and occupation of the premises under a claim of ownership, and had paid the taxes thereon continuously, since 1880.</p> <p>The tenants requested the judge to rule that, upon these facts, the action was barred by the statute of limitations of the United States, and could not be maintained. The judge so ruled; and directed a verdict for the tenants. If the ruling was correct, judgment is to be entered upon the verdict; otherwise, the case is to stand for trial.</p>

<p>Bill in equity, filed on December 23, 1889, by Mark Googins and Ellis P. Miller, to restrain the defendant corporation from obstructing an alleged right of way over its railroad in East Boston. The case was heard by Knowlton, J., who, at the request of the parties, reported it for the consideration of the full court; such decree to be entered as the court might determine. The material facts appear in the opinion.</p>

<p>Contract to recover for the use of a patented machine. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, which, so far as material to the point decided, were as follows.</p> <p>The plaintiff and the defendants, on or about January 7,1889, executed a certain instrument by which the plaintiff “leas'ed” to the defendants a machine made by the plaintiff for fastening buttons upon boots and shoes at a certain “ rent,” to be paid by them for each month’s use thereof. On February 4 following, it was decided by the United States courts that the machine made by the plaintiff and used by the defendants was an infringement of a patent owned by one Morley and others; and thereupon the plaintiff was enjoined from directly or indirectly making, using, or in any way infringing upon such patent. The plaintiff thereupon notified the defendants of the decision, and that the use of the machine would be thenceforward at their own risk, but that, if they continued to use the machine, the rent must be paid to him as theretofore. Soon after February 4, the owners of the patent also notified the defendants that the machine leased to them by the plaintiff was an infringement of the Morley patent; and that they would be required to pay as royalty a sum equal to the whole rent or royalty specified in the plaintiff’s lease, and the defendants continued to use the machine, and thereafter paid as royalty on the machine to the owners of the Morley patent, during the time for which the plaintiff claimed rent, an amount equal to the sum claimed by the plaintiff.</p> <p>If the defendants were exempted from paying the rent in question, judgment is to be entered for them; otherwise, judgment is to be entered for the plaintiff.</p>

<p>Bill in equity, filed in this court on March 11,1890, to compel the defendants to deliver to the plaintiff certain mortgage notes and mortgage deeds alleged to be his property, and so held and concealed by them that the plaintiff could not replevy them. The case was heard by Knowlton, J., who reported it for the consideration of the full court, and was as follows.</p> <p>Mary J. B. Horton, on October 29, 1889, two days before her death, being the owner of the mortgage notes and deeds in question, did, by a deed to the plaintiff in which her husband joined, “ grant, bargain, sell and convey and assign unto the said Richard Bromley, his heirs and assigns forever, all the real and personal estate of said Mary J. B. Horton, of whatever name, nature, or description, or wherever the same may be situated. To have and to hold the same in trust, nevertheless, for the following purpose: to take possession of the same and hold the same or sell or dispose of the same as he shall deem best, and to apply the income of or proceeds of the sale of the same in accordance with the instructions previously given to him by the said Mary J. B. Horton.” It appeared that Mrs. Horton was of sound mind, and executed the deed voluntarily, fully understanding the effect of her act; and it was not contended that there was any evidence which would justify a finding that any undue influence was exercised upon her to induce her to make it.</p> <p>The judge found that before making the deed Mrs. Horton orally instructed the plaintiff to apply the proceeds of the property to be conveyed, consisting solely of personalty worth about $7000, after payment of her debts and certain expenses relative to her burial, to the payment first of what was due the plaintiff for money advanced for her use, and secondly to the proper maintenance and support of her husband during his life, any balance, after applying a comparatively small sum to a purpose not stated, to go to the plaintiff. • The husband of Mrs. Horton, who was about eighty years of age when she made the deed, died in the spring of 1890.</p> <p>The judge also found that the plaintiff was entitled to a decree for the delivery of the mortgage notes and mortgage deeds as requested by him.</p> <p>The defendants contended, first, that the deed conveyed no title to the plaintiff either individually or as trustee, because the trust on its face was too indefinite to be carried out, and because it could not be established against the heirs or next of kin of the grantor by evidence of oral communications made before or after the deed was executed; secondly, that the bill could not be maintained, because the plaintiff did not sue as trustee, but in his own name; and thirdly, that the bill could not be maintained without making the executor or administrator of Mrs. Horton a party.</p> <p>If any of the defendants’ objections were fatal to the plaintiff’s suit in its present form, such decree was to be made, allowing the plaintiff to amend or otherwise, as justice and equity might require ; otherwise, decree for the plaintiff.</p>

Tort, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by falling on a flight of stairs leading from the kitchen into the back yard of a boarding-house in Boston, kept by the defendant. Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.

<p>Personal Injuries—Landlord and Tenant — Fitness for Habitation — Liability of Landlord.</p> <p>The tenant of a dwelling-house, while crossing the yard about three months after hiring the premises, stepped upon the cover of a cesspool which she did not know was there, and, the cover giving way, fell in and was injured. The cover was of iron, level with the surface of the ground, and was set in a wooden frame; and the accident happened solely because the frame was old and out of repair. Held, that the landlord was not liable for her injuries.</p>

Complaint, for embezzlement. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows.

<p>Complaint to the Police Court of Somerville, against Thomas Parks and William H. Riley, alleging that the defendants, on July 25, 1891, at Somerville, “did blast rock with gunpowder without written consent from the board of aldermen of said Somerville,” in violation of an ordinance of that city. Trial in the Superior Court, on appeal, before Braley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The ordinance in question, which was passed on October 20, 1886, provided, under a penalty of “ not less than five nor more than twenty dollars,” that “ no person shall blast rock or stone with gunpowder, giant powder, dynamite, gun-cotton, nitroglycerine, or any other explosive compound, without written consent from the board of aldermen.”</p> <p>The defendants admitted the allegations of the complaint. It was proved or admitted that the blasting was done by the defendants while employed by one Moore, in his quarry, to clear the rock from his land, for the purpose of selling the stone and fitting the land for building purposes, both the stone and the land being of considerable value; that the city of Somerville had about forty thousand inhabitants, and a territory about three miles long by two miles wide, nearly all laid out into building lots and thickly settled; that several houses had been built near Moore’s quarry, and a public street ran by it; and that the ordinance was passed because of complaints from people residing in the neighborhood, who apprehended injury from the blasting done by the defendants.</p> <p>The defendants requested the judge to rule as follows: “ 1. The ordinance is unreasonable and void. 2. The ordinance is unconstitutional, in that it destroys private property without any provision for compensation. 3. The ordinance is not authorized by the common law or by the statutes. 4. If the ordinance is valid, it does not apply to the working of a quarry which has been worked by blasting prior to the passage of the ordinance for the length of time that the quarry upon which the defendants were employed had been so worked. 5. The jury on the foregoing facts should return a verdict of not guilty as to both defendants.”</p> <p>The judge refused so to rule; and ruled that the ordinance . was reasonable, constitutional, and valid.</p> <p>The jury returned a verdict of guilty; and the defendants alleged exceptions.</p>

Indictment, alleging that the defendant, on December 17, 1885, in Italy, was lawfully married to one “Della Iacone Maria Grazia”; and that he, on June 2, 1891, at Quincy in this Commonwealth, unlawfully married one Angelina Campani.

<p>Indictment, for the larceny, on October 4, 1889, at Boston, of certain promissory notes and money, the property of one Wright.</p> <p>At the trial in the Superior Court, before 'Bond, J., on the question of the identity of the defendant, the government introduced evidence of the appearance of his face on the date of the alleged offence. The government then offered evidence by means of a photograph as to how the defendant looked in the face in the year 1887, and also by the testimony of a police officer as to how he looked at the time of his arrest, in August, 1891. The defendant objected to the admission of this evidence, but the judge overruled the objection; and the defendant excepted.</p> <p>The government offered to show, by the testimony of one Watts, a police officer, a certain conversation had by'him with the defendant, which related not only to the larceny in question, but also to other matters not connected therewith. The defendant objected to the admission of so much of this conversation as did not relate to the alleged offence, but the judge ruled that the entire conversation was admissible; and the defendant excepted. Watts was then permitted to testify respecting the whole of the conversation with the defendant, and in addition to give further conversations with the defendant, which did not relate to the offence charged in the indictment, but which went to show that the defendant was a professional thief, and had been engaged in numerous other larcenies throughout the country.</p> <p>The jury returned a verdict of guilty; and .the defendant alleged exceptions.</p>

Replevin, by the administrator of the estate of Mary I. Gould, for a promissory note for $1,400, dated December 7,1887, payable on demand to the order of the intestate, and signed by the Haverhill Aqueduct Company. The defendant filed the following answer: “ And now comes the defendant, and for answer denies each and every allegation in the plaintiff’s writ and declaration contained, as fully as if the same were herein specifically set forth and denied.

<p>Equity — Assignment of Personal Property — Lord’s Day.</p> <p>If the ground on which a bill in equity is dismissed is not stated in the decree, the burden is on the plaintiff, upon a report of the case, to show that, upon the facts which appear, he was entitled to a decree in his favor, and that the court was bound to enter such decree, no matter what may have been the facts which do not appear.</p> <p>An assignment of personal property in trust, executed on the Lord’s day by a single woman eighty years old while in a hospital and suffering from severe injuries, for her own benefit, comfort, and support during life, for her funeral expenses and a burial lot, and for the celebration of masses for the benefit of her father, brother, and herself, any balance to belong to the assignee, may properly be found to be a work of “necessity” or “charity,” within the Pub. Sts. c. 98, § 2.</p>

<p> Mechanic’s Lien—Notice. </p> <p>Under an agreement for the purchase of land, by the terms of which the owner is to advance money for a house, which the purchaser is to begin to build thereon by a certain date, and when the foundations are in he is to convey the land to the purchaser and take back from him a mortgage for the price of the land and the advances, such purchaser has authority to create a mechanic’s lien on the land for labor and materials for the building between the date of the agreement and the delivery of the deed and mortgage.</p> <p>An agreement for the purchase of land provided that the seller should advance money for the erection of a house, which the purchaser was to begin to build thereon by a certain date; and that, when the foundations were in, the purchaser, upon the conveyance of the land to him by the seller, should give a mortgage back to him for the price of the land and the advances. Under separate contracts, each for a round sum, made by the purchaser for labor and materials in furnishing stonework and plumbing for the house, some of the labor under both was performed before the deed and mortgage, which were parts of one transaction, were delivered, but no materials were furnished until after-wards. The stonework was completed, but not fully paid for. The plumbing, which under the contract was to be paid for in instalments as the work progressed, was not complete when work thereon was stopped, the labor and materials furnished being however in excess of the payments. Held, that mechanic’s liens could be maintained for labor and materials furnished under both contracts, although no notice was given to the seller of an intention to claim a lien under either contract. Allen, Holmes, & Knowlton, JJ., dissenting.</p>

<p>Writ of entry, to recover a parcel of land in Boston. Plea, nul disseisin. At the trial in the Superior Court, before Lathrop, J., there was evidence tending to prove the following facts.</p> <p>On June 20, 1867, the Boston Water Power Company conveyed, by a deed duly executed and recorded with Suffolk Deeds, Book 902, page 192, to Daniel Davies, a parcel of land “ bounded easterly by West Chester Park three hundred and five and fifty-six one-hundredths feet, southerly by land now or late of H. T. Arnold one hundred feet, westerly by other land of said Boston Water Power Company three hundred and five and fifty-six one-hundredths feet, northerly by a street thirty feet wide, running parallel to the Boston and Providence Railroad, one hundred feet, and containing thirty thousand five hundred and fifty-six feet.” This deed was duly executed in behalf of the Boston Water Power Company by its treasurer, G. T.' W. Braman. The “ street thirty feet wide,” described in the above deed as bounding on the north the parcel thus conveyed to Davies, constituted the demanded premises, and was then owned by the Boston Water Power Company. By a later deed, Davies conveyed the same parcel to Calvin Swallow, describing it as “ containing thirty thousand five hundred and fifty-six square feet, more or less, bounded northeasterly by West Chester Park extended, three hundred and five and fifty-six one-hundredths feet; southeasterly by land late of Nathan Matthews, now of the grantee, one hundred feet; southwesterly by land of the Boston Water Power Company three hundred and five and fifty-six one hundredths feet; and northwesterly by a street thirty feet wide, running parallel with the Boston and Providence Railroad, one hundred feet.” This deed was dated April 8, 1868, and was witnessed by Braman, but was not acknowledged by Davies, as appeared by the certificate thereon, until July 27,1868, nor recorded with the Suffolk Deeds until July 28, 1868.</p> <p>On the same April 8th, the Boston Water Power Company and Swallow entered into an agreement under seal, which set forth, among other things, that the Boston Water Power Company “ hereby grants and conveys to the said Calvin Swallow and his heirs and assigns the use, in common with said company and its successors and assigns, in a strip of land bounded southeast ... by land of said Swallow two hundred and eighty-eight feet, northwest by a thirty-foot street running parallel with the Boston and Providence Railroad five feet, . . . said strip of land to be used, as aforesaid, in connection with the strip of land next hereinafter described, for all the usual purposes of a passageway for way and drainage”; that Swallow “ hereby grants and conveys to the said Boston Water Power Company and its successors and assigns the use, in common with said Swallow and his heirs and assigns, in a strip of land adjoining on the northeast the strip of land hereinbefore described, and bounded . . . northwest by the thirty-feet street aforesaid five feet, . . . said last described strip of land to be used as aforesaid in connection with said first described strip of land for all the usual purposes of a passageway for way and drainage, and the two strips of land forming one common passageway, situated in the rear of Columbus Avenue and West Chester Park extended, in the city of Boston, being northwesterly of said avenue, and southwesterly of said West Chester Park extended. And said company hereby agrees with said Swallow and his heirs and assigns, proprietor and proprietors of land on both sides of said West Chester Park extended, that the said company will, at its own expense, fill up and grade said West Chester Park to the grade required by the city, as soon and as fast as shall be required by said Swallow and his heirs and assigns (on either side of said park), for their convenience in the erection of buildings thereon. And said company further agrees with said Swallow and his heirs and assigns to pay one half of the expense of constructing the drain to be laid in the passageway hereinbefore laid out and dedicated, and also to pay one half of the expense of constructing the drain to be laid out in a certain other passageway on the other side of West Chester Park, and between land of said Swallow and land of Daniel Davies, which last passageway is described in the deed of said Davies to said Swallow of even date herewith, and recorded with Suffolk Deeds. And said company further agrees with said Swallow and his heirs and assigns, proprietor of land on both sides of said West Chester Park, between said Columbus Avenue and the thirty-feet street aforesaid, that in case said thirty-feet street shall hereafter be discontinued, it, the said company, will lay out a turn way, so called, to the northwest end of each of said passageways, "and for the use of said passageways, said turnways to extend thirty feet northwesterly, and to be forty feet in width, and may be used for such purpose by all proprietors of land bounding on said passageways extending from Columbus Avenue northwesterly thereto, it being understood and agreed by all the parties hereto that the corners of said passageways at their junction with said turnways shall be rounded, for the more convenient entrance to and exit from said turnways. And by said passageways is intended and meant the passageway hereinbefore laid out and dedicated, between land of said company and land of said Swallow, and the certain other passageway on the other side of said West Chester Park, between land of said Swallow and land of said Davies, as laid out and dedicated by the deed of said Davies aforesaid, and said turnways, in case said thirty feet shall be discontinued, may be used by any and all proprietors on either of said passageways, and extending from Columbus Avenue northwesterly thereto. And said company further agrees with said Swallow and his heirs and assigns that in case said thirty-feet street shall be discontinued, and the land over which the same is projected be used and occupied for building purposes, that it shall be used and occupied and sold and conveyed subject to all the same or similar restrictions and agreements as are set forth in the deed of said Swallow to Hiram P. Bean, of even date herewith, and recorded with Suffolk Deeds, to the end that there may be uniformity in the character and location of such buildings from Columbus Avenue through to said railroad.”</p> <p>The agreement also bore the following memorandum, under seal, and signed by Swallow: “ Boston, April 8,1868. It is hereby expressly agreed by the within named Calvin Swallow, for himself and his heirs ■ and assigns, with the Boston Water Power Company and its successors and assigns, and as a part of the foregoing agreement, that whenever the thirty-feet street therein mentioned shall be discontinued as therein referred to, he, the said Swallow and his heirs and assigns, shall then release to said company and its successors and assigns all rights in the said thirty-feet street as a highway, except as to turn ways and restrictions as in said foregoing agreement set forth.”</p> <p>At a meeting of the directors of the Boston Water Power Company, duly notified, held on May 12, 1868, it was voted, “ That the street on the southwesterly side of the Boston and Albany Railroad between Berkeley and Dartmouth Streets, and the street south of the Boston and Providence Railroad between Dartmouth and Camden Streets, be and the same hereby are discontinued, and that the fee of said streets be conveyed to the owners of the land on the southwesterly and southerly sides of said street, the company to be released from all liability of making said streets where so conveyed.”</p> <p>On April 1, 1869, the Boston Water Power Company, by a deed duly executed by G. T. W. Braman, its treasurer, and bearing the indorsement, “ Approved, Charles D. Head, N-Matthews, Directors,” conveyed to Davies two parcels of land, described as being the “ same laid out by said grantor as a street thirty feet wide, parallel with the Boston and Providence Railroad, the land adjoining which was conveyed to said grantee by the Boston Water Power Company, by deed dated June 20, 1867, recorded with Suffolk Deeds, Liber 902, folio 192, and which street was discontinued by said grantor by a vote of the directors recorded herewith. This conveyance is subject to the same restrictions and agreements contained in said deed of the Boston Water Power Company to said grantee, dated June 20, 1867, the said grantor being released from all liability of building and maintaining said street hereby conveyed.”</p> <p>The tenant derived her title under the deed last mentioned from the Boston Water Power Company to Davies. The demandant claimed title under a release of the Boston Water Power Company to him, dated May 10, 1888, of a parcel of land described as “ a part of the land laid out by the grantor as a street thirty feet wide parallel with the Boston & Providence Railroad, and which street was discontinued by said grantor by a vote of the directors ” of May 12, 1868.</p> <p>The judge ruled in effect that the deed to Davies of April 1, 1869, from the Boston Water Power Company, was not within the authority of its vote of May 12, 1868, and ordered a verdict for the demandant; and the tenant alleged exceptions.</p>

<p>Cancellation of Contract — Election.</p> <p>A corporation entered into a written contract of employment with P., an inventor, by the terms of which he was to enter its employ at a certain salary per week, “ during the life of this agreement,” and was to describe the process used in his invention by a writing to be sealed up and deposited with a trust company. They then executed an agreement with the trust company, which, after reciting that P. was to make the deposit with the trust company, and pay a certain sum for its safe keeping, provided that the deposit “ may be withdrawn,” and the care thereof cease, upon a “ written request ” from them to the trust company. The deposit was made, and the employment continued for several months, when the corporation, desiring to close that branch of its business, began negotiations with P., which resulted in an agreement for the cancellation of the contract of employment, under which the business was to be closed up as of a certain date, the salary to be paid to P. to that time, a bonus paid him besides, and an order given him by the corporation upon the trust company for the release of the paper on deposit. The corporation paid to P. the balance due for salary and the bonus agreed upon, which he retained and receipted for “in full settlement of cancellation of contract ”; and it also gave him a written request to the trust company that the deposit might be withdrawn by him. The trust company declined to deliver the deposit to P. without a formal vote of the corporation. After a long correspondence between the corporation and P., and a delay of several weeks, the vote was passed, and the deposit was delivered to P. He then brought an action for salary from the date named in the agreement for cancellation to the date of the delivery of the deposit to him. Held, that a finding was warranted that the contract of employment was terminated at the date named in the agreement of cancellation, and that the action could not be maintained.</p>

<p>Personal Injuries — Master and Servant — Dangerous Machine — Negligence —Due Care — Evidence.</p> <p>A girl seventeen years old was set to work in the afternoon by her employer, without instructions, on a machine for skiving leather, and she undertook to run it as another operative had done. It was not unusual for the machine to be stopped by the leather catching in it, and the rule was that a workman should then be called. She called this workman the next day, and he relieved the machine. A few minutes later, she called him again, and, upon his relieving the machine, he swore at her in her employer's hearing, and told her, “ If this machine gets stuck again, fix it yourself.” She was going to ask a few questions of her employer, but he shook his head and hands, and refused to listen, saying, “ No, no, no ; if you do not work fast, I will send you home.” This frightened her, and she worked faster, and when the machine was stuck again she tried to relieve it, as she had seen the others do, and was injured. In an action against the employer for such injuries, the evidence was that she was a very dull girl, and was slow in her work as compared with the other girls; and she was cross-examined at great length before the jury. Held, that the questions whether tlie defendant was negligent in thus setting her to work, and whether she was in the exercise of due care, were properly submitted to the jury.</p> <p>In an action for personal injuries received by the plaintiff, a girl seventeen years old and inexperienced, while at work on a machine in the defendant's employ, she was cross-examined at great length before the jury, and there was an open intimation that she was feigning ignorance or dulness. Held, that it was within the discretion of the presiding judge to admit testimony from the plaintiff’s former school teachers that she was an unusually dull girl.</p> <p>At the trial of an action for personal injuries received by the plaintiff while in the defendant’s employ, the presiding judge instructed the jury, as requested by the defendant, “ that the burden of proof is on the plaintiff to show both her own due care, and negligence on the part of defendant, which negligence caused the accident,” and declined to give the further instruction, “ and that if the jury are left in doubt on these propositions, or either of them, they must find for defendant.” Held, that the defendant had no ground of exception.</p>

<p>Petition to vacate Judgment —Motion to amend — Writ of Review— Superior Court.</p> <p>The Superior Court has no power to grant a writ of review to set aside a judgment obtained in an action, in the trial of which no error of law or of fact occurred, for the sole purpose of striking out the name of the plaintiff in that action and substituting therefor the name of another person, who, if he should prevail, would hold the money sought to be recovered therein in his own right, and not for the benefit of the original plaintiff.</p>

<p>Personal Injuries — Master and Servant — Negligence of Superintendent. ■</p> <p>In an action under the St. of 1887, c. 270, § 1, cl. 2, for personal injuries occasioned to the plaintiff while in the defendant’s employ through the alleged negligence of the defendant’s superintendent, there was evidence that the defendant was erecting a large building, and employed the plaintiff as a laborer thereon; that some iron beams, about four and a half feet long and weighing about forty pounds each, were placed about three and a half feet from an opening in one of the floors, and had been there for two or three days before the accident; that the defendant’s superintendent, who was on crutches, and in the exercise of his duties was walking about the floor upon which the beams were placed, in order to pass between a pile of planks and these beams, pushed one of the beams with his foot; and that the beam swung around on the other beams and fell off from them and down through the hole in the floor upon the plaintiff, who was at work on the floor below and was in the exercise of due care, and injured him. Held, that the case was properly submitted to the jury.</p>

Contract, upon an account annexed, to recover $800 for services as an architect in drawing plans and specifications for a schoolkouse in the defendant town. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows.

<p>Tort, for personal injuries occasioned to the plaintiff while . in the defendant’s employ and engaged in running a freight elevator, which was alleged to be unsafe and dangerous, and upon which the plaintiff was negligently set to work by the defendant without instructions. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, which, so far as material to the points decided, was as follows.</p> <p>It appeared in evidence that the elevator in question ran from the basement floor in a building of the defendant up through an intervening floor to an upper floor; that the distance between the middle and upper floor was about twelve feet; that this elevator was wholly open at the ends for the loading of goods; that the sides of the elevator were formed of iron rods or braces, which were crossed, forming an open framework, and which attached the platform of the elevator to horizontal crossbeams parallel with the sides of the platform and a little over five feet above it; that the distance between these crossbeams and the edges of the opening in the upper floor, as the crossbeams passed up or down, was but a quarter of an inch; that the elevator was set in motion by means of a shipper rod, seven eighths of an inch in diameter, which extended outside of the line of passage of the elevator from the basement through the middle and upper floors to the top of the apparatus; that this shipper rod at the upper floor was distant between four and five inches from the edge of the opening therein, and the same distance plus a quarter of an inch from the line of passage of the crossbeam on that side; that a person standing on the platform of the elevator, in order to grasp the shipper rod itself above the upper floor, would have to reach his hand through the framework at the side of the elevator and about five inches outside of the crossed braces; that fastened to the shipper rod, between the middle and upper floors, was a-dog, and a person standing on the platform of the elevator as it descended from the upper floor could, by turning the shipper rod round, adjust this dog so as to meet another dog fastened to the upper part of the frame of the elevator; and that, when thus adjusted, the elevator would come to a standstill when the platform was level with the middle floor, but this adjustment could not be made until the dog on the shipper rod could be seen by the one running the elevator, and this was impossible until he had descended far enough to be below the upper floor.</p> <p>The plaintiff testified that he was a little over nineteen years old at the time of the accident, which occurred on September 12, 1888; that he entered the defendant’s employ on November 12, 1887, and from that time until August 18, 1888, he worked on an eyelet machine, which was about the size of an ordinary-sewing machine, and was then discharged ; that he was next employed by the overseer of the department where he got hurt, and went to work there on September 3, 1888; that the overseer told the plaintiff that one Lewis, a boy whom he pointed out to him, would teach him how to run the elevator, how to get warps and do other work, and what rooms the plaintiff was to work in; that the plaintiff went thereupon with Lewis, and during his first two days Lewis worked with him, showing him how to oil certain shafting upon the upper floor, and how to run the elevator; that part of his work was to go to the upper floor with a truck, there load warps on the truck, place the truck in the elevator, and descend with the warps to the middle floor, and there stop the elevator, remove the truck with the warps, and deliver the warps on the middle floor. That as to said elevator, said Lewis instructed him how to start it, — by pulling down on the rod the elevator would go up, and by pulling up on the rod the elevator would go down, and in order to stop it at said middle floor, he could either pull on the rod the way that the elevator was going, or else he could turn the rod, either one; that it was not explained to the plaintiff by said Lewis, or by any one, how said elevator was stopped by turning the rod, nor were the two dogs pointed out to him, but said Lewis turned said rod several times in plaintiff’s presence, but plaintiff did not understand what caused said elevator to stop when said rod was turned; that it was not pointed out or explained to plaintiff how near said crossbeam on said elevator passed to the edge of said upper floor in descending through it; that during the two days that he worked with said Lewis, they went up and down on said elevator about five times on each day, and thereafter the plaintiff used it alone about five times each day to go up and down, until said twelfth of September; that at about half-past eight o’clock in the morning of that day, the plaintiff put a load of warps on the elevator at the upper floor, got on the platform himself, and pulled up on the rod to start it down and the elevator started; that before the elevator had passed below the upper floor, the plaintiff put his hand through the side of the elevator, above where the rods or braces crossed and below the crossbeam, to take hold of the shipper rod, so as to turn it and stop the elevator at the middle floor; and that he took hold of the shipper rod, and while still turning it his hand was caught between the crossbeam on the elevator and the upper floor, and he was injured.</p> <p>The plaintiff also testified, on cross-examination, that the elevator stopped itself at the upper floor, and that the only place where he had to do anything to stop it was at the middle floor; that the time of his getting hurt was the first time he had tried to stop the elevator at the middle floor by turning the rod; that up to that time, after Lewis had left him, he had always stopped it at the middle floor by pulling down on the rod; and that he knew that the shipper rod passed through the upper floor outside of the edge of the opening, and beyond the line of passage of the elevator.</p> <p>There was evidence that the plaintiff was a boy fully as intelligent as the average.</p> <p>The judge refused to rule, as requested by the defendant, that on the evidence the plaintiff could not recover, and submitted the case to the jury.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Personal Injuries — Defect in Highway — Notice of Place. ■</p> <p>A notice to a town, by a person injured by a defect in a highway, stating merely that “ owing to a defect in the sidewalk ” he “ fell over a hydrant,” does not sufficiently designate the place of the injury, within the Pub. Sts. c. 52, § 19, as amended by the St. of 1888, c. 114.</p>

<p>The following order was adopted by the House of Representatives on April 12,1892, and thereupon transmitted to the Justices of the Supreme Judicial Court, who, on May 7, 1892, returned the opinions which are" subjoined.</p>