Volume 156 — Massachusetts Reports

<p>Scire facias on a judgment of the Superior Court against the defendant, as trustee of James W. Newcomb. The Superior Court ordered judgment for the defendant; and the plaintiff appealed to this court.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ as a freight brakeman, on June 8, 1890. The declaration contained two counts, one at common law, and the other under the employers’ liability act. The answer was a general denial.</p> <p>At the trial in the Superior Court, before Bond, J., it appeared that the plaintiff had worked as a brakeman for the defendant off and on for two years; that his train arrived at Cottage Farm from Worcester at about one o’clock on the morning of June 8th ; that it consisted of thirty-five or forty cais, five or six of which were oil-tank cars; that about ten or twelve cars were to be separated from the train at Cottage Farm and left; that the place where the pin was to be pulled to separate the train was between a Boston and Albany flat car with an oil tank on it, and a box car; that the tank car was ahead of the other and would be the rear car of the twenty or, twenty-three cars attached to the engine after the pin was pulled; and that while the train was approaching Cottage Farm, before it stopped, the plaintiff tried to pull the pin between these cars.</p> <p>The evidence as to the rate of speed at which the train was then moving was conflicting, the plaintiff putting it at about fifteen miles an hour when he first tried to get the pin, and at seven or eight when he finally pulled it; while Whitney, a brakeman called by the plaintiff, who was on the same car with him, said that when the pin was pulled the train was almost at a standstill.</p> <p>The plaintiff got on his knees at the end of the tank car, between the tank and the end of the platform, being a space about thirty-four inches wide, and at about the middle of the car, and reached over with his right hand to get the pin, putting his left up to the block of wood at the end of the tank to feel for a grab-iron. Finding no grab-iron, he put his hand over the block, so as to save himself when the engineer started ahead. There was no brake on that end of the car. The slack of the shacklings was out and the bunters of the cars were wide apart, and the plaintiff could not pull the pin because it was held by the strain of the train, the brake on the rear of the train being set. The plaintiff called to have the engineer start the engine back against the train. The engineer did so and the plaintiff pulled the pin and called, “All right,” and the motion was given by Whitney to the engineer to pull ahead. He did so, and the oil tank shifted and caught the plaintiff’s hand.</p> <p>The plaintiff said that he did not know whether the train started up suddenly or not, at the time the tank caught his hand. Whitney, on being asked whether the train at this time started easily or with a jerk, said that starting with a jerk is something that will happen on any freight train; that there is a good deal of slack in a given number of freight cars, and it is very hard to start the same as you start a passenger train ; that it did start with a jerk; that when the engine is pushing back against the cars, and the slack is out, there is always a succession of jerks between all the cars as the engine starts up, and it cannot be otherwise; that he could not swear whether it was a usual or unusual jerk; that there was considerable slack to a certain number of cars, and a considerable jerk; and that some of the Boston and Albany tank cars he had seen had handles on the ends and some had not. Sibley, the engineer, called by the ■defendant, said that he started the engine at this time by letting the brake off and giving it a little steam; that he did not start with any unusual jerk; and that he did nothing out of the ordinary in the way of. starting the train.</p> <p>The plaintiff said that he had not noticed the block of wood before the moment he went to pull the pin; that he knew at Worcester that he was to pull the pin between these cars at Cottage Farm; that he had never seen any of these tank cars when the tank was not close up to the end block so a man could not get his hand in; that there was room between this tank and block for his hand, so that the back of his hand did not touch anything; that he knew there was oil in the tank, as he heard it splashing back and forth, and that the car was loaded with oil, as he had noticed the way-bill. He said he was familiar with the duties of brakeman ; that he had never in his whole experience taken hold of the block on an oil-tank car before; that his fingers were down on the inside of the block, towards the tank, so that he could hold on; that as soon as he got the pin he was supposed to give the notice to go ahead, but not if he was in a dangerous position; that there was nothing else on the rear of this v car to get hold of but the block; that he had worked with this engineer before, and had known him to throw a train so as to throw men off their feet. Whitney examined this oil tank car later on the same morning, and found that the blocking was an inch and a half or two inches away from the tank. He said that there would be no danger of any one’s falling off the flat car when the draw-bar heads were held close together by the engine shutting back against the train, and no danger until the car was started ahead by the engine, and that the engine would not start until the man who pulled the pin called, “All right.” He further testified, that, on his examination of the blocking later in the morning, the blocks appeared to him out of place, but he would not swear that it was not the shrinkage of the blocking that caused the gap; that a man could tell that the block and tank were separated if he put his hand in between; and that it looked as though the blocking had worked away from the end of the tank. He said that every oil tank car had a brake on one end and none on the other, and that is true of all flat cars; that his usual way of pulling the pin on a flat car is to lie lengthwise on it on his belly.</p> <p>One Adams, master car-builder on the Boston and Albany Railroad, called by the defendant, testified that the tank is kept from sliding endwise by the blocks at the end, which are about ten inches square, and cut to fit the shape of the end of the tank; that the block is bolted down, and also secured by horizontal bolts or straps, secured to timbers near the centre of the car; that the tank is also held in place by other blocks and by iron straps; that the tank weighs about eight tons when empty, contains about four thousand gallons of oil, which weighs between seven and eight pounds a gallon ; that on the end on which there is no brake the distance from the tank to the end of the car is about twenty-two inches, and from the head of the draw-bar to the end of the car about twelve inches; that when the car was originally constructed the blocking was held tight as it could be to the end of the tank, drawn up by the straps or bolts; that from the shrinkage of the timbers when green wood is used, and from use, the tank always works a little way from the blocks; that when the cars come to us for any repairs we always find that the tank is a little way from the blocking; that there have never been any handles put on these blocks, or anywhere on the car; and that there is no provision made for a man to hold on upon these cars, nor upon flat cars in general.</p> <p>At the close, the plaintiff waived all claim upon the evidence of any neglect of the superintendent.</p> <p>The defendant asked the judge to rule as follows: “ 1. That upon the whole evidence, the plaintiff cannot recover. 2. That there was no legal obligation upon the defendant to furnish handles for the plaintiff to take hold of when engaged in uncoupling the cars. 3. That there is no evidence upon which the jury can find that the plaintiff was injured by reason of the negligence of the engineer, in failing to stop, start, manage, or control the train in a proper manner. 4. That there is no evidence upon which the jury can find that the tank car was in any way defective.”</p> <p>The judge refused so to rule, but left the case to the jury, instructing them that the only allegations of neglect on the part of the defendant left to them to consider were the allegations, “ 1. That there was a defect in the construction of this oil tank car, and 2. That the locomotive engineer was negligent in the starting, stopping, or management of the train.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract upon two drafts, the first of which was as follows: “ $544.50. Regina Flour Mill Company. St. Louis, October 18th, 1886. Thirty days after date pay to the order of ourselves (with exchange on New York or St. Louis) five hundred and forty-four AA- dollars. Value received and charge the same to account of Regina Flour Mill Company, per Geo. H. Backer, Secy.

<p>Tort, by the administratrix of the estate of Frederick Thyng, to recover for his death and suffering from injuries received while in the defendant’s employ as brakeman.</p> <p>At the trial in the Superior Court, before Barker, J., there was evidence tending to show that, on July 3,1889, the intestate was the rear brakeman on a train of freight cars which was near the station at Concord, and was going from six to eight miles an hour; that the seventh car from the end broke apart from the car ahead of it; that neither of these cars belonged to the defendant ; and that the intestate who was on the front end of the seventh car fell between the cars, and was found badly injured under the forward truck of the seventh car, and subsequently died.</p> <p>Charles Dean, conductor of the train, testified:</p> <p>“ On the seventh car there was a double-mouthed drawbar. On the eighth car was a single-mouthed drawbar. The pin and link in the rear end of the eighth car were right, and in place. I did not see the pin used in said double-mouthed drawbar*. One of the men threw it down the bank, and got another pin. I got the other pin from the caboose. The new pin that was put in the double-mouthed drawbar might have stuck out from the bottom of the drawbar fully half an inch, or perhaps an inch. I have been conductor on this train about seven years, and am familiar with the double-mouthed drawbars. When new, they have an ordinary pin about ten inches long, though I never measured one. It comes down from the bottom of the drawbar so that you can see the end of it. They vary a good deal in length. When new, they have a pin chained to the car that comes down about an inch from the drawbar. The seventh car was a refrigerator car. There was a frog on the top of the hill, nearly a mile east of the Concord station: we call it the sand-hill. We passed that at about fourteen or fifteen miles per hour. The grade from that point to the Concord station is about thirty-seven feet to the mile, down grade. The single-mouthed draw-bar does n’t always need as long a pin as the double-mouthed bar. The mouth of the single drawbar came about even with the lower jaw of the double drawbar. In coming down such a grade as that, the cars will not bump into each other, because the train is held back by the rear end. They put on the brakes at the top of the hill. Brakes were put on somewhere on the grade by the head man, I suppose, and the middle man. The rear man always holds the train down grade from the rear end. In passing frogs and switches, a pin will jump up and down, more or less, sometimes it will hop up and we cannot find it, and other times it will hop up and stick right on the dead wood which comes across over the top of the drawbar. A pin is more liable to hop up when a slack is loose than when it is tight. I never knew one to hop up when the train was tight; My attention was called to the breaking apart of the train because we stopped so quickly and made such a sudden jerk, the rear end of the train not running more than twenty or thirty feet.</p> <p>“ Double drawbars are common on the road. Thyng worked for me about two years, and had worked as a brakeman before he worked for me. It was part of bis duty as a brakeman to shackle and unshackle cars. The same sort of pins are ordinarily used with double-jawed drawbars as with the single. We don’t make any distinction if the pin comes down through. We have an extra supply of pins on the train, kept in the caboose and on the engine. When making up trains in the yard there are always pins and links lying around. If I was making up a train myself, and saw that there was an imperfect pin in a certain place, I would get another and put it in the place of it. That has always been the rule. ...</p> <p>“ I think Thyng would not have anything to do with making up or shackling this train. I believe there was a switching engine made up the train. After the train is started, it is the duty of all to look up the couplings, and see that the train is made up right. I had charge of the caboose where the pins and links are kept. I said the pins were lying around in the yard, no particular place for them. There are more or less pins, always some, around where you can find them. There is no particular place for any particular kind. You can find almost any kind of a pin or link any time in the yard.”</p> <p>William H. Campbell and Charles A. Wakefield, head and middle brakemen testified in corroboration, Wakefield testifying as follows: “ On the seventh car was a double-mouthed drawbar. The coupling on the eighth car was all right. On the coupling of the seventh car I found that the pin was up a little, resting on the edge of the hole, — on the upper edge of the lower hole. The pin was slightly bent, — very slightly, I should judge. It fitted the hole loosely, but not as loosely as some. I threw the pin away, down the bank. It was not bent so that we could not use it. It was twelve inches long, or a little over. I think it came even with the bottom of the drawbar. Should say the end of the pin was mostly square.”</p> <p>Dean, recalled, testified: “The conductor of the switching engine had charge of making up the freight trains in the yard. As conductor of this train I had nothing to do with making it up in the yard; my duty first commenced when the train was made up. It is the business of all of us to see that the train is all right. As the train passes out of the yard, we watch it and see that it goes all right. At that time the brakemen are on the train at their brakes in their places. The brakemen who go on the train do not have anything to do with making up the train or inspecting it before it leaves the yard.”</p> <p>The pin which the witness Wakefield threw away was shown' to the witness, who testified that it was about the average length, and was such a pin as is ordinarily used on double-mouthed as well as single-mouthed drawbars.</p> <p>The defendant requested the court to rule that the plaintiff .could not maintain her action. The court so ruled, and ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract to recover the balance of a promissory note.</p> <p>At the trial, in the Superior Court, before Hopkins, J., it appeared that part of the name of the maker had been torn off the note, and that after its maturity, on October 12,1882, the defendant paid to the plaintiffs the sum of one hundred and twenty-five dollars, and thereupon received from the plaintiffs the note and a receipt “ in full settlement of all accounts to date.”</p> <p>Upon the question whether the note was delivered to the defendant for the purpose of being cancelled and extinguished, there was conflicting evidence. The plaintiffs asked the court to rule that, upon the evidence, the defendant had made out no defence, and that the plaintiffs were entitled to recover the balance of the note after deducting the payment.</p> <p>The court declined so to rule, and instructed the jury as follows : “ If the plaintiffs, at the time they received the sum of one hundred and twenty-five dollars from the defendant, and gave him a receipt in full of all demands therefor, surrendered to the defendant the note in suit, with the intention that the same should be cancelled, and that the debt thereby evidenced should be extinguished, and intended to give to the defendant the balance of the debt, and that the payment made was to be in full for said debt, then the plaintiffs cannot recover upon the note; but if the defendant asked the plaintiffs to take a part of the amount due them, and to give him the note and receipt in full of all accounts, in order that he might exhibit the same, and the defendant received the note and receipt upon his promise that he would pay the balance, and the plaintiffs surrendered the note and gave the receipt upon his promise to make payment subsequently of the balance, then the plaintiffs would be entitled to recover.”</p> <p>The jury returned a special finding that the plaintiffs intended to receive the one hundred and twenty-five dollars “ in full for the debt then due,” and further returned a general verdict for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Civil Damage Act — Pleading — Averment of Time — Knowledge of Plaintiff — Statute of Limitations.</p> <p>An action was brought under the Pub. Sts. c. 100, § 21, to recover damages caused to the plaintiff by her husband in consequence of his intoxication, produced by liquor sold to him by the defendant. There were seven counts, six of which alleged a sale and delivery on or about a specified date, and the seventh alleged sales and deliveries on or about a specified date and at divers other times between that date and the date of the writ. Held, that it was not necessary under any of the first six counts to prove the averment of time as laid, the only absolute limit being that the time must be within the statute of limitations applicable to the action; that knowledge by the defendant that the plaintiff’s husband was accustomed to get intoxicated, or had been intoxicated within six months next preceding the sale of intoxicating liquors to him, need hot be shown ; that under the last count a sale on one occasion within the time alleged could be proved; that the allegations of the different counts were not in terms .that the defendant wholly caused the intoxication of the plaintiff’s husband, it being sufficient to prove that the defendant caused it in whole or in part; that the cause of action was not within the Pub. Sts. e. 197, § 3, and that it had not been contended that the time within which the action might be brought was not six years next after the cause of action accrued.</p>

<p>Construction of Statute — Jurisdiction.</p> <p>The St. of 1887, c. 332, § 1, which provides that the Superior Court shall have exclusive original jurisdiction of all causes of divorce and marriage, including all powers as to alimony, the custody of children, or otherwise, theretofore exercised by the Supreme Judicial Court, does not confer upon the Superior Court jurisdiction of cases arising under the Pub. Sts. e. 146, § 30, which provides that if, after a divorce decreed in another State or country, minor children of the marriage are here, the Supreme Judicial Court may make like decrees as to their care, custody, education, and maintenance as if the divorce had been decreed in this Commonwealth.</p>

Contract for the amount of a reward. The declaration alleged that the defendants, on or about November 22, 1889, by public advertisement, offered a reward, signed by them as u Selectmen of Milton,” to any person furnishing evidence that would lead to the arrest and conviction of the person who shot Edward Cunningham on November 21, 1889, by inserting “ the same in various newspapers, and placarding it by written or printed posters in various public places; that the…

<p>Statute of Limitations — Part Payment by Partner.</p> <p>A part payment of a debt by a partner, without special authority from a copartner, but within six years of the suing out of the plaintiff’s writ, takes the debt out of the statute of limitations.</p>

<p>Bill in equity, filed in the Superior Court by the executor of a deceased partner for a partnership accounting. Hearing on the bill, answer, and master’s report, before Dewey, J., who reserved and reported the case for the consideration of this court.</p> <p>The bill alleged that the testate George A. Chapin and Charles E. Chapin and Charles T. Chapin were in partnership in Boston, which partnership was dissolved by the death of George A. in February, 1888; that by the terms thereof, which were not in writing, George A. and Charles E. were each entitled to one half the profits* except that Charles T. was entitled, to a certain contingent interest and to a fixed amount yearly; that the assets were in the hands of the defendants; that a large balance was due from the defendants to the plaintiff as executor, and that the defendants refused to account; that Charles T., in consequence of his knowledge of the business as clerk, was intrusted by Charles E. with the duty of settling the partnership affairs; and, thus acting as agent of the surviving partner, Charles E., the said Charles T. bought at an auction sale the partnership plant or equipment, excepting the stock on hand, the good will, and the right to obtain the lease of the premises, and Charles T. was liable to the plaintiff “ to the amount of the excess of the value of plaintiff’s share at the date of said sale, to wit, Sept. 17, 1888, over any payment made by him applicable thereto.”</p> <p>The answer admitted the partnership as between George A. and Charles E., but denied that Charles T. was ever a member of the firm; alleged that Chapin, Wood, and Company held the assets, having purchased the same from Chaides E., who purchased the same at a sale by public auction held under his own direction as surviving partner, and further admitted that there had been no final settlement of the partnership accounts, and that there was due the plaintiff the sum of $1,367.21 only.</p> <p>The master found that Charles E. sold the partnership property for but little more than half its value, and found further that from the value of the equipment should be deducted the amount of deterioration, and from the balance thus obtained the amount of the purchase money, and reported, “ subject to the ruling of the court thereon, as matter of law, that of the balance thus ascertained, viz. $1,920.95, said Charles T. Chapin is liable to the plaintiff’s testator as to one of two equal partners, and interested equitably in one moiety of the balance thus ascertained, for one half of said last balance of $1,920.95, or the sum of $960.48, with interest from Sept. 17, 1888; and said Charles E. Chapin for all said George A. Chapin’s share, as hereinbefore found, not paid by said Charles T. Chapin.”</p>

<p>Will — Priority of Legacies.</p> <p>A testator, by the first five articles of his will, made specific, bequests and devises to his two minor children, including the homestead estate, which was an expensive establishment; by the sixth article he created a trust for the maintenance and education of his daughter, and by the seventh article a similar trust for his son; by the eighth article he gave a large sum of money in trust for the additional benefit of the children, the trust to terminate at a probably distant period, and the interest of the son to be inalienable, for the declared purpose of protecting him and his family from want; by the ninth, tenth, eleventh, and twelfth articles he gave numerous large pecuniary legacies, the largest being to his brother, his sister, and her children, who were dependent upon him for support either wholly or mainly, to other near relations, and a few friends, including one gift which the testator hoped to have applied to purposes not disclosed; and by the thirteenth article he made bequests “ out of any property which may then remain ”; and by the fourteenth article he gave in trust “ all which then remains of the property and estate.” There was a deficiency of assets. Held, that there was nothing to warrant a presumption that the testator intended to prefer ills children, and that the legacies in the sixth to the twelfth article of the will inclusive all abated in equal proportions.</p>

Petition for review, praying for a writ of review of a judgment of the Municipal Court of Boston.

Tort for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by reason of an elevator falling upon him. After the former decision, reported 151 Mass. 121, a trial was had before Hammond, J., who ordered a verdict for the defendants, and, at the request of the plaintiff, reported the case forth e determination of this court. If the ruling was wrong, the verdict was to be set aside ; otherwise, judgment on the verdict.

<p> Conduct of Juror. </p> <p>After the jury in a criminal case had agreed upon a verdict and were returning to the court-room, a juror, without the knowledge of any one, separated from his fellows and left the courthouse to go to dinner. When his absence was discovered, the presiding justice instructed the officer in charge of the jury to keep the other jurors together in the court-room, and to seek the missing juror and bring him back. This having been done, a verdict of guilty was rendered in the usual manner, the defendant being present, but his counsel absent. The presiding justice afterwards talked with the juror and the officer who went in search of him, and was satisfied that the juror had not during his absence conversed with any person in regard to the case, and found that the separation did not prejudice the defendant. Held, on a motion to set aside the verdict and for a new trial, that the facts were not, as matter of law, inconsistent with the finding of the presiding justice, and that the verdict was not invalidated.</p>

Complaint, addressed to a trial justice, alleging that the defendant did keep and maintain a certain tenement used for the illegal sale and keeping for sale of intoxicating liquors. The defendant, being convicted before the trial justice, appealed to the Superior Court.

<p>Complaint to the Municipal Court of the city of Boston, under chapter 49, section 25, of the Revised Ordinances of 1890, that the defendant, being the owner of a lot of land abutting on a private passageway which he had the right to use, suffered certain filth “ to remain on that part of said passageway abutted by and adjoining said land.” The ordinance is as follows: “ No owner or occupant of land abutting on a private passageway, and having the right to use such passageway, shall suffer any filth, or waste or stagnant water, to remain on that part of the passageway adjoining such land.”</p> <p>The defendant moved to quash the complaint, on the grounds that it did not set out any violation of or offence under the ordinance ; that it contained no allegation of the length of time the filth had been suffered to remain by the defendant; and that it did not set out any of the defendant’s right to use the passageway. The court overruled the motion; and the defendant alleged exceptions.</p> <p>The case was then submitted, upon a statement of facts agreed upon, which, so far as material, appears in the opinion.</p> <p>The defendant requested the judge to instruct the jury that the ordinance was unreasonable and indefinite, and that it imposed duties which the defendant lawfully could not be required to perform.</p> <p>The judge declined to give the rulings, and directed the jury to bring in a verdict of guilty, and the defendant alleged exceptions.</p>

Complaint to the Municipal Court of the West Roxbury District of the city of Boston for criminal business, charging the defendant with a violation of the rules of the board of park commissioners of the city.

<p>Motion for New Trial — Declarations of Juror of Statement in Jury-room—■ Exceptions.</p> <p>On a motion for a new trial, evidence of statements to other persons made by a juror,subsequent to the verdict, of what he said in the jury-room during the deliberations of the jury is inadmissible; and the testimony of two of the jurors that there had been no evidence at the trial to show that the defendant kept one of the worst houses at a certain locality and cheated everybody, “ except the statement of the juror H./’ by which was meant his statement in the jury-room, cannot be regarded as evidence of what that statement was; and if it could, it would be excluded on grounds of public policy.</p> <p>The provisions of the Pub. Sts. c. 153, § 12, as amended by the St. of 1891, c. 362, include exceptions taken to the rulings of a single justice before whom a motion for a new trial is heard, and by whom it is decided, and are not confined to exceptions taken in the course of the trial of the case itself.</p>

<p>Conversion — Law of another State — Auditor’s Report — Ruling.</p> <p>Laws of other States must he proved in this Commonwealth as facts, and ordinarily, in a trial hy jury, the question must be left to the jury to decide as a fact what the law of another State is, if it becomes material to be determined; but where the evidence consists of a statute or judicial opinion, its construction is for the court.</p> <p>A., being a resident of New Hampshire, gave in that State a mortgage of personal property there situate to B., and afterwards, with B.’s consent, removed the property to this Commonwealth. In an action of tort for conversion brought by B. against the assignee in insolvency of A., evidence of three kinds was introduced to determine what the law of New Hampshire was, namely, a certain chapter of the General Laws of that State, seven judicial decisions, and the auditor’s report. Held, that the law of New Hampshire applicable to the case was a question of fact for the jury; that, as in the brief for the plaintiff, there was no reference to any section of the chapter relied on, and as in the defendant’s brief it was expressly stated that the law of New Hampshire depended on decisions, the statute was not to he considered; that as the auditor’s statement of the rule of law was expressly limited to the effect of a mortgage against creditors in New Hampshire, and had no application to creditors in this State, and as, moreover, the auditor did not state any rule of law in New Hampshire applicable to the facts which he found, a ruling of the presiding justice intended to clear up the difficulty arising upon the auditor’s report was erroneous, in the absence of evidence showing beyond controversy,as a fact, that such ruling was the law; and that the court could not assume that the law of New Hampshire upon the subject in question was like that of Massachusetts.</p>

<p>Contract to recover certain instalments of interest upon thirty-two thousand two hundred dollars of bonds.</p> <p>At the hearing in the Superior Court, before Thompson, J., it appeared that by the St. of 1854, c. 226, the Treasurer of the Commonwealth was authorized to issue bonds in its name to the amount of $2,000,000, and to deliver the same to the treasurer of the Troy and Greenfield Railroad Company under certain conditions, one of which was that the company should issue to the Commonwealth a bond of indemnity in the said sum of $2,000,000; that soon thereafter, in July, 1855, the railroad company executed to the Commonwealth a mortgage and bond conformably to the provisions of said statute; that by the St. of 1855, c. 394, the defendant town and each of fourteen other towns were authorized to subscribe for shares of said railroad, “ provided the inhabitants of such town or towns, at a legal town meeting duly called for that purpose, shall vote by a two-thirds vote to subscribe for such shares in accordance with the terms of this act, to pay for the same out of the town treasury, and to hold the same as town property, subject to the disposition of the town, for public purposes, in like manner as any other property which it may possess,” and “ said towns are hereby authorized to raise, by loans or taxes, any sums of money which shall be required to pay the instalments on their respective subscription to said stock and interest thereon”; that on July 30,1855, the above railroad company executed a mortgage to Jerome V. C. Smith and others to secure the payment of bonds to the amount of $900,000, which were the first bonds of the company secured by mortgage except the bond of indemnity to the Commonwealth; that thereafter, in April, 1858, the town of Williamstown voted in town meeting to subscribe to the capital stock of the Troy and Greenfield Railroad Company to the extent of three hundred and thirty shares upon certain conditions, one of which was, “ To protect the town against the possibility of loss of the stock from such a contingency as the sale of the Troy and Greenfield Railroad by the bondholders, the first mortgage bonds of the Troy and Greenfield Railroad Company to the extent of thirty-three thousand dollars shall be placed in the Adams Bank under charge of a committee to be appointed by the town, to be held until the town shall be satisfied that such security is no longer necessary, and shall direct the committee, by a vote of the town at a general or special meeting, to surrender them ”; and that subsequently thereto, and before the town bonds were issued, bonds to the amount of $33,000, which were secured by the mortgage to Smith and others, dated July 30, 1855, were deposited in the bank for the security of the town.</p> <p>Upon these facts, and others which are now immaterial, the court found for the plaintiff in the sum of $2,368.63. The defendant alleged exceptions, and, at his request, the court reported the case for the determination of this court.</p>

Four ACTIONS of tort, for personal injuries occasioned to the plaintiffs by coming in contact with a dead wire hanging within a few feet of the ground across an electric wire in the street of the defendant city. The cases were tried together in the Superior Court, before Dunbar, J., who reported them for the determination of this court. The report recited the following facts.

<p>Mortgage of Personal Property — Partnership — Preference.</p> <p>A mortgage of partnership property, signed by the partners in their individual names, need not disclose the undertaking to be on the part of the partnership in prder that the record thereof shall constitute the notice required by law.</p> <p>The mere knowledge by a mortgagee, at the time that the mortgage was given, that one of the purposes of the mortgagor was to hinder and delay his creditors, is not sufficient to justify the jury in finding that the mortgagee participated in such purpose.</p>

Contract to recover the amount of a subscription by the defendants, who were copartners, toward the erection of a factory. At the trial in the Superior Court, before Hammond, J., it appeared that the defendants signed the subscription paper in question.

<p>Tout for personal injuries occasioned to the plaintiff by falling into a hole in the floor of a building in Boston, owned by the defendants.</p> <p>At the trial in the Superior Court, before Mason, 0. J., there was evidence tending to show that one Franklin M. Slade was, at the time the injuries were received, a tenant at will of the defendants; that the plaintiff was employed by one Charles Hurley to assist in removing a number of baker’s troughs manufactured by Slade for Hurley, and that, after the said troughs were completed, it was the duty of Hurley to remove them from the premises; that, on the day on which the injuries were received, the plaintiff, while assisting in the removal of one of the troughs from the premises, stepped into a hole eighteen inches long by fourteen inches wide, which hole was in the floor of the premises from which the troughs were to be removed ; that at the time the plaintiff was in the exercise of due care; that the hole was unguarded, uncovered, and unprotected ; that there had never been any barrier around the hole at any time, and that there was none at the time of the injuries complained of; that no cover had ever been made for the hole, and no scuttle had been constructed to cover it, but that it was usually covered by pieces of plank about four or five inches wide and perhaps a foot and a half long ; that the hole had existed in the floor for ten years prior to the date of the injuries ; and that the hole was near the centre of the floor in the room occupied by Slade, and was used for the transmission of boards and other material from that floor to a floor below. Anna M. Slade, called by the plaintiff as a witness, testified that she had never had any knowledge of the existence of the hole, or of anything relating thereto, until after the injury, and this testimony was not controverted.</p> <p>The court ordered a verdict for the defendants, and the plain- . tiff alleged exceptions.</p>

<p>Master and Servant — Employers’ Liability Act — Regaining Consciousness before Death — Dependency.</p> <p>Leaving to conjecture the question whether an employee of a railroad, who was injured at a certain time, regained consciousness before his death on the same day, is not a sufficient compliance with the provisions of the St. of 1887, c. 270, § 2. The testimony of the plaintiff, the next of kin of the deceased, who was killed while in the employ of a railroad, that she was his half-sister and had two children, that he used to come in and see her and sometimes gave her money, that he sent her money every other week or so to pay her rent, and that she had no other means of support but her earnings, and since his death had had to support herself, is not sufficient to prove that she was dependent upon his wages for support within the meaning of the St. of 1887, c. 270, § 2.</p>

<p>Amendment — Right to Trial by Jury.</p> <p>If a party does not file a notice that he desires a trial by jury in the Superior Court, as required by the Pub. Sts. c. 167, § 69, “ before the parties are at issue, or within such time thereafter as the court may by general or special order direct,” he takes the risk of any amendments that may thereafter be allowed by the court, and after the time provided for filing such a notice by the general rule of the court has elapsed, it is in the discretion of the court, on amendments being allowed which change the issues or introduce new ones, to grant or deny to any party the right to file the notice required by the statute.</p>

Bill in equity, praying that the defendants he restrained from further constructing or maintaining certain windows or any new windows in their building, and that the building be restored to its original condition so far as the windows were concerned.

<p>Devise — Residuary Clause — Execution of Power.</p> <p>A general residuary devise will operate as an execution of a power to dispose of property bjr will, unless there is something to show that such was not the testator’s intention.</p>

Contract. The declaration alleged that the plaintiff gave to the defendant a deed dated July 17, 1884, conveying “ a certain tract of land ” containing nine and acres situated in Wellesley, and also “ the right to lay and forever maintain, without any charge for rent or damages, a line of water-pipe through ” certain other land of the plaintiff adjoining the tract, as set forth in the deed; that immediately after the description in the deed is the following grant: “ meaning…

<p>Indictment, in three counts, returned into the Superior Court at the June term, 1891, alleging that the defendants attempted to procure the miscarriage of Mary A. Murphy, on April 25, 1891, in consequence whereof she died on the following day.</p> <p>In the Superior Court, before the jury were empanelled, the defendant Henry M. Leach moved to quash the indictment, on the ground that it charged in the first count that the defendants committed the offence therein described, and also charged the same act to have been committed by some persons to the jurors unknown ; that in the second count it charged that the defendants incited, etc. some person to the jurors unknown to commit the offence, and also charged that a certain person to the jurors unknown committed the acts described in said count; and that in the third count it charged a distinct felony from that charged in the other counts, in that it charged the defendants as accessories after the fact. Blodgett, J. overruled the motion; and the defendants excepted.</p> <p>At the trial the government offered evidence to prove that the death was caused by peritonitis induced by the rupture of the uterus by some instrument, and produced a sea-tangle tent, and offered evidence tending to show that the tent was found in the pelvic cavity of the deceased, and that it had reached that cavity by having passed through the os uteri and through the posterior wall of the uterus, and that the tent was applied to produce abortion ; and further offered the testimony of physicians to show that it was impossible for the deceased to have inserted the tent herself, and that it would be impossible for a woman unaided to insert a tent into her own uterus. The defendants offered the testimony of one Mary Elizabeth Hadley, to show that she could use and had used sea-tangle tents upon herself for a legitimate purpose. The evidence was excluded.</p> <p>The defendants offered evidence of the declarations of the deceased, about five months prior to her death, as to her health and condition. The court excluded the evidence, but allowed testimony of anything said by the deceased indicating present pain, without assuming what her condition was at the time. The defendants offered the testimony of one Margaret Haywood, to show that the deceased had refused to see her sisters more than seven months before, when they called, with nothing to show the reason for or the circumstances of her refusal. The court excluded .the evidence, allowing the defendants to offer testimony tending to show that even longer back than seven months before her death the relations between the deceased and her sisters were not friendly, and to prove anything that she said to her sisters.</p> <p>The defendants asked for several instructions to the jury, one of which was: “ 3. That in order to convict on circumstantial evidence you must be satisfied that the act could not have been done by any other person than the persons charged in the indictment, and on this point the government must satisfy you beyond a reasonable doubt.” The court refused to give this instruction.</p> <p>The jury returned a verdict of not guilty as to Sarah E. Leach, and of guilty as to Henry M. Leach, who alleged exceptions.</p> <p>The case was argued at the bar in November, 1891, and after-wards was submitted on the briefs to all the judges.</p>

The first CASE was an actipn of contract, to recover damages for failure of the defendant to perform an oral agreement to grade and build a street, and cause the city water to be put therein. Trial in the Superior Court, before Barker, J., who directed a verdict for the defendant, and the plaintiff alleged exceptions.

<p>Coktract, upon an award of referees, under a written agreement to submit to them the settlement of matters in dispute. Hearing in the Superior Court, before Mason, C. J., who ruled that the plaintiff was entitled to recover the amount of the award, and interest thereon; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Estate of Homestead — Insolvent Debtor — Pleading.</p> <p>Where an estate of homestead has been acquired in land of greater value than the limit of the homestead exemption, and the surplus has been alienated by sale or transfer according to law, the owner of the residue may maintain a writ ol entry to recover the land subject to the right of homestead.</p> <p>Whether, in case of a writ of entry brought by an assignee in insolvency against a grantee of the insolvent on the ground that the conveyance was made in fraud of the insolvent laws, a homestead right in the insolvent which gives the tenant no right of entry can be relied on for any purpose under the general issue, and whether, if pleaded under Rule 52 of the Superior Court, it would be a defence even pro tanto to any one except the insolvent, quazre.</p>

<p>Writ of entry, to recover two lots of land in Boston, one about forty-two feet long and three feet eight inches wide, on the easterly side of the demandant’s estate on Spring Lane, between that and the estate of the heirs of Susanna Lambert, and the other of the same width, immediately in front of the first mentioned strip, thirteen feet three inches long, reaching from the first strip to the line of the Susanna Lambert estate on said lane, according to the accompanying plan.</p> <p> </p> <p>It was admitted that the heirs of Susanna Lambert owned and now own the first mentioned strip of land (marked A) in fee (over which the demandant once had a right of passage), unless the demandant had got it by adverse possession; but it was contended by the latter that it had had exclusive adverse possession of the same for over twenty years, and that therefore, by the statute of limitations, the tenants were estopped from disputing its title.</p> <p>It was further contended by the demandant, that it had, by exclusive continuity of adverse possession, acquired the strip of land in front of the aforesaid passageway BACD, measuring thirteen feet, and of the same width. The tenants claimed to own the fee of said passageway c D E E, and the right to use it. Thej claimed no fee in this thirteen-foot strip B A c D, except that right to pass over it, and the right also which they had in common with the public, and the further right of opening and abutting upon this strip, and having windows thereupon, and denying the right of anybody to build upon or occupy the same, because it was a public highway which, by its peculiar situation, conferred benefits upon them. The demandant put in the deed of 'Minot to Campbell, dated July 30,1800, and the deed of John Driscoll to the Old South Society, dated April 15, 1819.</p> <p>For the purpose of showing the title by limitation, the demand-ant offered communications from third persons, and mere records of its corporate doings from time to time in regard to the property ; which were excluded, and the demandant excepted.</p> <p>After the conclusion of the demandant’s case, the court ruled that there was not sufficient evidence to warrant finding twenty years’ adverse possession of either of the parcels of land, and directed a verdict for the tenants; and the demandant alleged exceptions.</p>

<p>Bill in equity, filed on March 25, 1884, by two of the administrators of the estate of George W. Simmons, against the surviving partners of the firm of George W. Simmons and Son, one of whom was the remaining administrator, for an account, and for the recovery of a:i amount due the estate. The case was reported 146 Mass. 167, and now comes up on questions of law arising upon the master’s report upon recommittal.</p> <p>By this report it appeared that the three partners, George W. Simmons, Sr., George W. Simmons, Jr., and Philip A. Spofford, in making up their accounts, figured interest upon the share of each partner in the capital, and received such interest as part of the expenses of the business before profits were divided. It was claimed by the dissenting heirs of George W. Simmons, that in ascertaining the balance due them respectively from August 27, 1883, when the surviving partners ceased to employ the whole or the principal part of the capital of the intestate, the account should be made up on the same basis. The other question presented by the report was whether the estate of the widow of George W. Simmons was to be charged with one third of the amount of a mortgage paid off by the firm, in pursuance of an agreement to which the widow was a party.</p> <p>Hearing before Holmes, J.,'who reserved the case for the consideration of the full court.</p>

<p>Personal Injuries — Due Care — Negligence — Evidence.</p> <p>Eive empty passenger cars were standing upon the siding opposite a station; the incoming train passed by the station on the main track, and, after reaching the switch, was backed down upon the side track and coupled to the stationary cars. After the incoming train had passed the station, upon which from a hundred to a hundred and twenty-five people were waiting to take the train, the plaintiff tried to get into one of the stationary cars, upon the platform of which four or five people were standing, and was injured. Held, in an action against the railroad company to recover damages for the injuries, that evidence that the doors of the stationary cars were locked was competent, as the locked doors may have prevented the plaintiff from getting on board the train earlier, and the crowd of passengers may have led him to hurry when he did try to get on.</p> <p>Empty passenger cars were standing upon the siding opposite a station; the incoming train passed on the main track, and after reaching the switch was backed down upon the side track and coupled to the stationary cars. Held, that it was not a rule of law that a passenger was guilty of contributory negligence if, after a signal had been given to start the train, he attempted to get on, the train being then at rest.</p> <p>In an action against a railroad corporation for personal injuries alleged to have been sustained by the plaintiff by being thrown to the ground by the starting of a train which he was attempting to board, it was held that a request for a ruling tiiat “if, when the signal to start the train was given, the plaintiff was neither getting upon the train nor appeared to be approaching it for that purpose, there was no negligence on the part of the defendant or its servants,” was properly refused, as the jury were justified in finding that, under the circumstances stated, tlie plaintiff’s theory of the case would be sustained.</p> <p>Although a defendant at the trial may orally admit something which is put in issue by his answer, the court in its discretion may receive evidence, the same as if the admission had not been made.</p>

<p>Personal Injuries — Negligence of Fellow Workmen.</p> <p>A truck consisted of a plank about four feet long and a foot or more wide, across one surface of which, near its centre, was attached an iron roller, revolving upon an axis held to the side of the plank by suitable bearings. When placed upon the floor with the roller down, the instrument could be easily moved about with a load resting upon the plank, and when placed with the plank down, it was intended to remain stationary, and beams or planks could then be moved by resting them upon the roller and moving them while so supported. It was a movable tool, complete and in good order, and only dangerous, as any heavy object is dangerous, if carelessly allowed to fall from above on a person below. It was liable, when used for certain purposes at the edge of an open well, to fall into the well, to prevent which it could be fastened to the floor on which it rested, or blocked with a cleat; but when used as a vehicle on which to transport articles by its own motion, fastening or blocking would wholly prevent its use. While placed with the plank down and stationary, and in use by fellow workmen in landing upon the floor of an upper story heavy planks hoisted by a block and fall, the truck fell through an opening in the floor upon the plaintiff’s intestate, who was on the story below. Held, in an action under the St. of 1887, c. 270, for personal injuries occasioned to the plaintiff’s intestate, that the absence of any appliance for blocking or fastening did not make the truck a defective tool or machine; that the duty of using it in a safe manner was the duty of the ordinary workman who handled and used it, rather than a duty of the employer or a duty of superintendence; that the omission to use appliances for blocking or fastening was not negligence of a superintendent, or want of superintendence, but negligence of fellow workmen; and that the plaintiff could not recover as against the employer.</p>

<p>Tort, for false and fraudulent representations and concealment made by the defendants, whereby the plaintiff was induced to purchase certain real estate in Boston.</p> <p>At the trial in the Superior Court, before Dunbar, J., the jury returned a verdict for the plaintiff, and, in answer to a question submitted by the court, found the defendants liable both for false representations and for fraudulent concealment; and the defendants alleged exceptions.</p> <p>The facts, so far as material, appear in the opinion.</p>

<p>Replevin of a desk. At the hearing in the Superior Court, before Barker, J., there was evidence tending to show that the plaintiffs sold the desk to one Gilman on a written conditional lease dated June 3, 1889, the title to remain in the plaintiffs until the desk was paid for by instalments; that on November 23, 1889, after the desk had been less than half paid for, it was attached by a constable on a writ in favor of one Way against Gilman, which writ was duly returned into court, and judgment for the plaintiffs rendered thereon ; that, when the attachment was made, the desk was in a building where it had been delivered by the plaintiffs to Gilman; and from which it was removed by the constable to a public warehouse of the defendant, and, the defendant being absent, the constable deputized the defendant’s employee, who was present, as his keeper, and received from him a warehouseman’s receipt for the desk,- and that the plaintiffs demanded the desk from a servant of the defendant in charge of the warehouse, who refused, under the defendant’s instructions, to deliver the same, and thereafter the property was taken from the warehouse on the writ of replevin, and the attachment remained in full force.</p> <p>The defendant requested the court to rule that the action could not be maintained, but the court refused so to rule, and found for the plaintiffs'; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in November, 1891, and after-wards was submitted on the briefs to all the judges.</p>

<p>Personal Injuries — Highway Defect — Statutory Notice.</p> <p>Where an archway three feet wide and three or four feet high served as an entrance to steps leading down to an arched and covered passageway, which ran through a brick block built up to and forming the line of the highway, and no part of the steps, archway, or passageway was within the limits of the highway “ except a portion of the steps which did not come above the surface but were covered by planking, making the street at that point even and regular with the rest of the highway and of the proper width,” it was held that the city was not required, in the exercise of reasonable care, to have a railing at the archway, and was not liable for injuries occasioned to a traveller who, in the exercise of due care, slipped down and slid from the sidewalk through the archway and down upon the steps, and was injured.</p> <p>A notice to a city, by a person who has been injured by a defect in a way, stating that while travelling on foot “ along the sidewalk on Tremont Street, in said Boston, opposite Indiana Place, between Church Street and the bridge over the Boston and Albany Railroad, directly in front of the alleyway or subway of brick building numbered 369, said alleyway being numbered 369 in figures thereon, I was injured by falling into a hole in said sidewalk, in which the steps leading down into said alleyway projected, said hole being without suitable guard, protection, light, or other warning, and being concealed by a loose board unsecured and covered with snow,” sufficiently complies with the provisions of the Pub. Sts. c. 52, § 19, as amended by the St. of 1882, c. 36.</p>

<p>Assignment in Insolvency — Attachment — Jurisdiction in Equity.</p> <p>About two weeks before parties were adjudged insolvent under the laws of this Commonwealth, and a month before the assignment, a Massachusetts creditor attached personal and real estate of the insolvents situated in other States. There were subsequent attachments by creditors foreign to Massachusetts more than sufficient to exhaust the property. Held, that this court had no jurisdiction in equity in a bill brought by the assignees in insolvency against such creditor to compel him to carry on the suits, or to allow the assignees to do so on condition that the creditor was indemnified for costs and expenses.</p> <p>An assignee in insolvency under the laws of this Commonwealth has the right to ■ prevent a Massachusetts creditor from doing anything to hinder the assignment from having the effect which the statute intended it to have, but that is all; and the provision of the Pub. Sts. c. 157, § 47, on its face, is only intended to apply to proceedings in this Commonwealth.</p>

<p>Petition for a writ of mandamus to compel the respondent to pay over to the treasurer of the petitioner a fund received by the respondent under the act of Congress approved August 30, 1890. Hearing before Solmes, J., who reserved the case for the determination of the full court.</p> <p>The case was argued at the bar in January, 1892, and after-wards was submitted on the briefs to all the judges except Field, C. J.</p>

<p>Personal Injuries — Negligence — Due Care — Instructions.</p> <p>A person who attempts to get upon a horse car while it is in motion after being directed to wait until the car stops, and who persists in attempting to get on and is injured by running against the arm of a passenger on the step of the car, cannot maintain an action against the company owning the car.</p>

<p>Personal Injuries — Negligence— Use of Streets by Railroad.</p> <p>A railroad corporation authorized by statute and the ordinances of a city to operate a dummy in a street of the city is not liable to a traveller therein for damage caused by the fright of a horse at the noise made by the escape of steam through the safety valve of the dummy, although the dummy had been standing at one place in the street for half an hour.</p> <p>The provisions of the Pub. Sts. c. 112, § 169, which relate to the use of the streets and highways by ordinary steam railroads at crossings, and of § 224, which relate to railroads for private use, have no application to a corporation which is using the streets under a special charter.</p>

<p>Personal Injuries — Negligence — Report of Accidents to Railroad Commissioners.</p> <p>In an action for personal injuries occasioned to the plaintiff’s intestate, while wrongfully on one of the defendant’s trains, by being pushed therefrom, while it was in motion, by one of the defendant’s servants, it was held that there was no error in the refusal to permit the plaintiff to show that the defendant had been notified by the railroad commissioners to report accidents of this kind as required by the Pub. Sts. c. 112, § 208, and had failed to report this one.</p>

<p>Tort for personal injuries occasioned to the plaintiff while in the defendant’s employ. Trial in the Superior Court, before Hammond, J., who ruled that, upon the evidence, the plaintiff could not maintain the action, and ordered a verdict for the defendant; and reported the case for the consideration of this court. If the rulings were wrong, the case was to stand for trial; otherwise, judgment was to be entered on the verdict. The facts appear in the opinion.</p>

Scire eacias for a judgment and execution against the defendant as the trustee of the plaintiff in Atwood v. Dumas, 149 Mass. 167. The Superior Court charged the defendant trustee in the original suit, and ordered judgment thereon; and the defendant trustee appealed to this court.

<p>Delivery of Deeds as Collateral Security — Insolvent Debtor — Preferences.</p> <p>A., who was insolvent and knew himself to be so, hired money of B., who had reason to believe A. insolvent, upon the proposal made by A. at the same time, and as part of the request for the loan, to give B. real estate as security therefor. Owing to causes over which B. had no control, nearly two weeks elapsed before A. was able to deliver to B. warranty deeds of two lots of land as security for the loan. A little over a month thereafter A. filed his voluntary petition in insolvency. Held, on a hill in equity brought by the assignee of A. against B. for a reconveyance, or for an order compelling B. to pay the petitioner the value of the lands so conveyed, that, in the absence of evidence that B. had reason to believe that the conveyances were made in fraud or evasion of the provisions of the insolvent law, a decree should he entered that the deeds were taken as security, and allowing the assignee, if he should so elect, to redeem within a certain time upon paying what should appear to he due; otherwise, the bill to be dismissed with costs.</p>

<p>Bill in equity, filed on June 7, 1890, praying that the defendant be restrained from constructing a public road along a strip of land taken by the plaintiff for laying its water-pipes. Hearing before Holmes, J., who reserved the case for the consideration of the full court, in substance as follows.</p> <p>The St. of 1865, c. 131, declared that the city of Boston through the agency of the Cochituate Water Board might lay and maintain one or more suitable lines of pipes from the reservoir therein provided for to a convenient point in its line of pipes leading from its reservoir in Brookline to the city, and might take and hold by purchase or otherwise such lands or real estate as might be necessary therefor, and might carry and conduct the pipes over or under any watercourse, or any street, turnpike, road, railroad, highway, or other way, in such manner as not to obstruct or impede travel thereon, and might enter upon and dig up any such road, street, or way for the purpose of laying the said pipes, and for maintaining and repairing the same.</p> <p>By virtue thereof the city took portions of a strip of land from various owners, private persons, in different parcels, including the lands covered by Clinton Road, then owned by the heirs of Benjamin Goddard, and extending from Beacon Street to Boylston Street, in Brookline, and also including a parcel taken from the Boston, Hartford, and Erie Railroad Company, and occupied by its tracks at the time of the taking.</p> <p>About 1869 the city laid down water-pipes in the strip so taken, and have since maintained them; and a portion of the same, in which the pipes were laid and are now maintained, consists of a piece of land about 40 feet in width and about 425 feet long, lying between Sumner Road, so called, — a public way of the town, laid out on February 8, 1886, across the line of pipes, — and Boylston Street, also a public way of the town, beneath the surface of which last street the pipes extend and connect with other pipes of Boston, extending through the streets and other connecting streets to and into the city.</p> <p>The length of the strip from Chestnut Hill Reservoir to Boylston Street is about 7,500 feet, and was partly private land and partly public ways ; and about 4,800 feet of this strip is entirely within the limits of the town, and pipes are laid therein beneath the surface of what was before the taking, and is now except as affected by the taking, private land.</p> <p>About the time of the laying down of the plaintiff’s pipes, the plaintiff constructed and it still uses, as necessary to the control and distribution of its water Sowing through the pipes, a gate chamber, so called, affording access to three gates used for the control and distribution of its water, and the gate chamber is placed within the limits or boundaries of Clinton Road, which is a public way of the town duly accepted and allowed at a town meeting, January 15, 1889. This way extends from Sumner Road to Boylston Street, is Sfty feet in width, runs longitudinally over the course of the location of the pipes between Sumner Road and Boylston Street, and includes within its side lines so</p> <p>much of the strip forty feet in width, described in the taking, as lies between Sumner Road and Boylston Street. The location of Clinton Road contained the following reservation, to wit: “ In said location of said road there is hereby reserved to the city of Boston and its assigns all the rights which said city now has to lay and maintain pipes beneath the surface of said way as so laid out for the conducting of water to said city, and also all other rights and easements in the soil beneath the surface of said way as so laid out which are now enjoyed .by said city under the statutes of the Commonwealth, and especially under the provisions of chapter 131 of the Acts of 1865.”</p> <p>It further appeared that the town was proceeding to dig up the surface of the way to construct the same, without interfering or intending to interfere with the gate chamber; that Clinton Road forms a direct connection between Buckminster Road, a public way extending from Chestnut Hill Avenue to Sumner Road and Boylston Street; that the roof of the gate chamber is about four feet below the surface of the ground, and will be about two feet below the surface of Clinton Road when completed; that through this chamber run certain pipes of the complainant; that the bottom of the chamber will be twelve feet below the surface of the way when completed; that the pipes in the same will be twelve feet below the surface ; that in each of the pipes is a gate or shut-off for letting on or shutting off the water; that the gates can be operated from the surface of the ground, but that, if it is deemed desirable by the city to have and continue to maintain their present large-sized gate chamber and gates in their present position, the same can be so maintained, operated, and repaired as well after the construction of the street as now; that although the city has in some places laid water-pipes above the ground, the same cannot be said of the present construction ; that the pipes are below the surface, and it will probably never be necessary to lay them above it in the strip crossed by the way in question; that the gate chamber and gates can be maintained as well after the construction of the street as now; and that nothing in the laying out will require any alteration in the plaintiff’s water-works beyond the making of a new crossing for the gate chamber at an expense less than the sum awarded for damages to the city by the laying out.</p>

Tort, for personal injuries occasioned to the plaintiff by being struck by the defendant’s locomotive engine at Hyde Park.

<p>Construction of Deed — Exception — Right of Way.</p> <p>A party in 1850 conveyed to a railroad company by a warranty deed two pieces of land, “ together with the right to maintain and use said pieces of land for a railroad, hereby releasing aE claim for damages for making, maintaining, and using said railroad. Reserving the passway at grade over said railroad where now made." The passageway connected two tracts of land separated by the railroad, the larger of which was otherwise wholly inaccessible. This way had been used before the railroad was laid out, and its use was continued without objection thereafter. No petition for damages or a crossing was ever presented to the county commissioners. Held, in an action of tort against the railroad company for the obstruction of the passageway, that it was the intention of tile parties that the passageway should be annexed as a perpetual right to the larger tract, and that, as the railroad company had not seen fit to rely upon its location and the rights acquired under it, leaving its grantor to his petition for damages and a crossing, it must be deemed, as between its grantor and itself and their respective successors in title, to have elected to hold under the deed, and not under its location, and that it could not set up any claim under its location inconsistent with the rights given or reserved in the deed.</p> <p>An exception may be created by words of reservation in a deed.</p> <p>Whether, in a given ease, the language of a deed shall be construed to create an exception or reservation, will depend upon the situation of tile property and the surrounding circumstances, in the absence of a declaration by the parties in the deed of their intention.</p>

<p>Restriction in Deed — Acquiescence.</p> <p>Where the plaintiff conveyed land subject to the restriction that it should be occupied only for a private dwelling-house, it was held that the plaintiff’s acquiescence in the actual occupation of the land for two dwellings, his knowledge and approval of the changes which the defendant proposed to make, and the change in the defendant’s situation induced by the plaintiff’s conduct and words, made it unjust to permit the plaintiff to enforce the restriction against the defendant, even if it was to be construed as the plaintiff claimed.</p>

<p>The first case was a bill in equity, filed in this court for a specific performance of an agreement to convey land. The second case was a bill to reform the same agreement, or to have it surrendered and cancelled. Hearing before Lathrop, J., who, at the request of the parties, reported the cases for the consideration of this court. The facts in the two cases, so far as material to the points decided, appear in the opinion.</p> <p>The cases were argued at the bar in January, 1892, and after-wards were submitted on the briefs to all the judges.</p>

<p>Breach of Contract — Election — Parol Evidence — Damages.</p> <p>A. delivered to B. one hundred and fifty bonds, B. agreeing to return seventy-five of them in a certain event, to buy of A. thirty-two like bonds for a certain price, and to lend A. a sum of money on other like bonds. A. brought trover against B. to recover the one hundred and fifty bonds, on the ground that he could repudiate the contract because of B.’s bad faith, but recovered only the seventy-five bonds returnable on the happening of the event. Held, that" the alleged bread: of the defendant’s promises was left untouched and was the-proper subject of an independent action.</p> <p>Election exists when a party has two alternative and inconsistent rights, and is-determined by a manifestation of choice. But the fact that a party wrongly supposes that he has two such rights, and attempts to choose the one to which: he is not entitled, is not enough to prevent his exercising the other, if entitled to it.</p> <p>Considerations in addition to and not inconsistent with those set forth in a written instrument, may be shown by paroi evidence.</p>

<p>Evidence of Collateral Facts— Confessions — Instructions—Variance.</p> <p>In prosecutions for forgery and for uttering forged paper proof is admissible in order to show an intent to defraud by the forgery, and also to show knowledge on the part of the accused with reference to the particular document which lie is charged with uttering, that at or near the time of committing the alleged offence he had passed or had in his possession other similar forged documents.</p> <p>Where, in an indictment charging the defendant with the forgery of a check and with uttering the same, knowing it to have been forged, there was evidence of alleged statements or confessions of the defendant, which related in part to other checks found upon him or passed at about the time of the indictment, it was held that as all the statements were pertinent to the question whether the checks were forgeries, and as that question was in law pertinent to the issue, the evidence was competent.</p> <p>' Where instructions requested were the same in substance as those given, those requested were properly refused.</p> <p>Where an indictment alleged the making and uttering of a false check or order for money of a certain tenor, and there was no evidence that the maker, whose name was forged, had an account with the bank on which the check purported to be drawn, or any right to draw upon the bank, the court rightly refused to rule that there was no evidence to warrant a conviction, or that there was a variance between the allegation and the proof in that the words “ order for money ” in the indictment implied a mandatory power in the maker of the check, while upon the proof it did not appear that the alleged maker had any right to command the bank to pay the check, or any check.</p>

<p>Personal Injuries — Risk of Employment — Due Care.</p> <p>A railroad brakeman, knowing that to turn a switch was incident to his employment, knowing its location and the manner of operating it, and knowing also the manner of making a flying switch, undertook, while aware that the cars were approaching, to turn the switch, and, before he could get out of the way, he was struck and injured. Held, that he could not maintain an action against the railroad company for the injuries.</p>

<p>Equity Jurisdiction—Conveyance of Real Estate — Insanity — Fraud and Undue Influence — Parlies in Equity — Demurrer.</p> <p>Under the Pub. Sts. c. 151, § 4, which confers upon this court general equity jurisdiction, a bill in equity will lie to declare a deed void, and for a reconveyance, even if the plaintiffs might have resorted to a real action.</p> <p>An heir, who did not join as plaintiff in a bill in equity brought to declare the deed of an intestate void, may be made a party defendant, even if she should elect to affirm the deed.</p> <p>Specific defects must be distinctly pointed out in a demurrer, if it is intended to argue them, so as to give the plaintiff an opportunity to amend before the case is brought to this court.</p>

<p>Mechanic's Lien — Contract Price — Action at Law — Pleading.</p> <p>A. and B. agreed in writing that B. was to receive a deed of land from A. on pay. ing the balance of the purchase price, of which B. had already paid a part, and</p>

<p>ccount annexed— Tenant at Sufferance — Remedy for Breach of Contract.</p> <p>Rent is recoverable under an account annexed which contains an item therefor.</p> <p>A lessee under a paroi agreement, who is at his own request permitted to remain in possession of premises for more than a month, is liable to pay rent therefor. The remedy by an action of tort for conversion as the consequence of the breach of an agreement does not exclude the maintenance of an action of contract upon that agreement.</p>

<p>Intoxicating Liquors — Resale in another State.</p> <p>A sale of intoxicating liquors in this Commonwealth, with knowledge of the seller that they were to be resold by the purchaser in another State contrary to its laws, and with a view to such resale, will not support an action for the price in this Commonwealth.</p>

Indictment under the St. of 1890, c. 448, alleging that the defendant was an itinerant vendor, engaged temporarily and transiently in selling and exposing for sale clothing in a building in Dennis without license or authority. Trial in the Superior Court, before Dewey, J., who refused to rule that, upon the facts, the defendant could not be convicted on the indictment.

<p>Jury to revise Award — Railroad Crossing — Apportionment of Cost.</p> <p>The judge who presides at a trial by a jury to revise and determine matters of fact in an award under the Pub. Sts. c. 112, §§ 129-134, St. 1882, c. 135, and St. 1885, c. 194, should allow the jury to hear all the competent evidence, and instruct them upon such pertinent principles of right and justice as either party may desire him to call to their attention. He need not lay down any specific rule of award or apportionment, because none has been ordered by the Legislature.</p> <p>Where the whole duty of a jury in revising the award of a special commission under the Pub. Sts. c. 112, §§ 129-134, St. 1882, c. 135, and St. 1885, c. 194, was to apportion between a railroad company and a town the cost of the alteration of a crossing, it was held immaterial upon whose petition the changes were ordered, and whether the result sought could have been obtained without altering the crossing.</p> <p>A charge to a jury empanelled to revise the award of a special commission apportioning the charges of the alteration of a railroad crossing, that the parties should pay for the benefits respectively received, is correct.</p>

<p>Delivery of Goods to Carriel Title — Trustee Process.</p> <p>When goods are to be manufactured by a seller according to sample, and forwarded by a carrier to a buyer at a distance, the seller’s delivery of goods conformable to the contract to the carrier as bailee for the purchaser passes the title; and if the buyer ships them back to the seller by the same carrier, the •last may be charged therefor by the seller in trustee process.</p>

<p>Discharge in Bankruptcy — Statute.</p> <p>A discharge in bankruptcy satisfies neither the literal meaning nor the policy of that provision of the Pub. Sts. c. 157, § 87, which declares, “ Except that a debtor who has paid all the" debts owing by him at the time of his previous insolvency, or who has been voluntarily released therefrom by his creditors, shall be entitled to a discharge in the same manner and with the same effect as if he had not been previously insolvent.”</p>

<p>Personal Injuries — Negligence— Construction of Building — Jury Trial.</p> <p>Where the plaintiff, who was carefully reaching to take hold of the post and stair rail to guide herself down the stairs of the defendant’s building, and stepping forward to do so, suddenly fell down stairs and was injured, and it appeared that she knew she had reached the stairs and saw their construction, and there was no evidence that the place was insufficiently lighted, and nothing to connect the defendant’s conduct in the construction of the stairs with the injury, it was held that an action for the injuries would not lie against the owner of the building.</p>

<p>Lewd and Lascivious Cohabitation — Evidence — Explanation of Cross-examination — Evidence too remote — Instructions.</p> <p>At the trial of an indictment for lewd and lascivious cohabitation, evidence tending to show cohabitation, the practice of fornication or adultery, and so much publicity and evil example as to lead to a visit from the overseers of the poor on the complaint of the judge of probate of the county, is sufficient to warrant a conviction.</p> <p>At the trial of an indictment for lewd and lascivious cohabitation, a witness called by the government may testify that he was married to the female defendant, and to the place where they were married, without the production of the record of the marriage.</p> <p>Where, at the trial of an indictment for lewd and lascivious cohabitation, a witness for tile government testified, on cross-examination, that some years before he found his wife, the female defendant, sitting with a man and thought it improper because of the man's reputation, it was held that the counsel for the government might ask what that reputation was.</p> <p>Where, at the trial of an indictment for lewd and lascivious cohabitation, the husband of the female defendant appeared as a witness for the government, it was held that counsel for the defendants could not go into the sources of the trouble between the witness and his wife by asking him if he returned from a voyage a few years previously affected with syphilis.</p> <p>Where, so far as appears, the jury have been instructed fully upon a matter in issue, a request for further instructions thereon is properly denied.</p>

<p>Intoxicating Liquors — Evidence ■— License — Owner of Premises — Matter of Discretion.</p> <p>At the trial of an indictment for keeping and maintaining a tenement used for the illegal sale and keeping of intoxicating liquors,^acts done by another upon the defendant’s premises with the apparent purpose of concealing the liquor from the officers are competent, as furnishing some reason to infer that he was acting in the defendant’s interests, under his employment; especially when taken in connection with the subsequent evidence, that he was with the defendant when the latter applied for a license to keep the premises as a hotel.</p> <p>At the trial of an indictment for keeping and maintaining a tenement used for the illegal sale and keeping of intoxicating liquors, testimony of an officer that he found empty lager beer bottles on the premises which were not there at the time of the former seizure, a little over a month previous, is admissible, as having a tendency to show a replenishing of the stock, and to support the charge of the indictment.</p> <p>At the trial of an indictment for keeping and maintaining a tenement used for the illegal sale and keeping of intoxicating liquors between April 1 and the first Monday of September, 1891, evidence that the defendant applied for and obtained a license some time in April is competent to identify him as keeper of the premises.</p> <p>Whether sufficient notice has been given to warrant the introduction of secondary evidence of an innholder’s license is a preliminary question of fact for the presiding justice to determine, and his finding is not subject to exception.</p>

<p>Intoxicating Liquors — Evidence.</p> <p>At the trial of a complaint for unlawfully exposing and keeping for sale intoxicat- ' ing liquors, there was evidence that on the morning of Sunday, the day alleged, two officers entered at the front entrance, and another by breaking in a door, which was locked in his face, at the rear of the defendant’s premises. There was beer, freshly drawn, under the bar, and a bottle of whiskey and a glass were upon the bar. The defendant was absent, but his two bar-keepers in their shirt sleeves, and from seven to nine other men, were present. Held, that these facts unexplained would warrant the inference that the bar-keepers were intending to sell intoxicating liquors, and that such evidence would warrant a finding that they were acting by the defendant’s authority.</p> <p>There is no rule in this Commonwealth that a witness must be believed simply because he is not impeached and tells a plausible story.</p>

<p>Intoxicating Liquors — Complaint — Specific Allegation.</p> <p>A duly registered pharmacist, under the St. of 1889, c. 270, who has a license under the Pub. Sts. c. 100, § 10, “ sixth class,” may be convicted for a violation of the provision thereof which requires that the sale of liquor shall be “ to such per-, sons only as may certify in writing for what use they want it,” under a complaint for making an unlawful sale under the Pub. Sts. c. 100, § 1, which complaint does not contain a specific allegation setting forth the omission to require such certificate.</p> <p>The fact that the St. of 1889, c. 114, so amends the Pub. Sts. c. 100, § 18, that a violation of the provisions of a license of the sixth class under § 10 does not work a forfeiture of the license, does not the less make a sale in violation of a license of this class an illegal act.</p>

<p>City Ordinance — Allegation in Indictment.</p> <p>The allegation, in an indictment for keeping a troublesome dog, that the acts charged are contrary to the form of a city ordinance, allows proof of the ordinance in any competent way, and it is immaterial that the bound volume in which the ordinance appears was not referred to in the indictment.</p>

The first case was a complaint to the Municipal Court of Boston, alleging that the defendants exposed for sale oleomargarine contrary to the provisions of the St. of 1891, c. 58. Trial in the Superior Court, on appeal, before Sherman, J., who, after a verdict for the Commonwealth, reported the case for the determination of this court.

<p>Bill in equity, brought for the dissolution of a partnership and an account. The case was referred to a master, and reserved upon his report, and exceptions thereto, by Lathrop, J., for the consideration of the full court.</p> <p>The articles of copartnership, entered into May 1, 1887, provided that the copartnership should continue for five years, and then stipulated as follows:</p> <p>“ Second. That the capital to be used in said business shall be fifteen thousand dollars, to be brought in by said Edward A. ICinney, Jr. forthwith, and said Edward A. Kinney, Jr. shall receive interest thereon at the rate of six per cent per annum, payable semiannually.</p> <p>“ Third. That all the necessary rents and expenses, and all losses which shall be incurred in said business, shall first be paid out of the profits of the same, and next out of the capital of the said copartnership, or if the same be deficient, by the said Kinney.</p> <p>“ Fourth. Said Andrew J. Maher shall be allowed to draw three hundred thirty-three dollars monthly, as payment for his services; if the profits are not sufficient, the same to be paid from the principal; and if the principal be not sufficient, by said Kinney.</p> <p>“ Fifth. All the profits of said business, after deducting all expenses and losses, the interest on said sum of fifteen thousand dollars capital, and the salary paid to said Maher, shall be divided between said partners as follows, viz.: to said Kinney three fourths, and to said Maher one fourth.”</p> <p>The master found that Maher through illness was unable to attend to the business after June 12, 1889; that on March 18, 1890, the present bill was brought, and a decree for dissolution entered on July 15,1890, and that the defendant was entitled to the sum of $4,366.66 as compensation, at the rate provided by article fourth of the copartnership articles, for the period between the dates of June 12, 1889, and July 15, 1890.</p> <p>The case was argued at the bar in December, 1891, and after-wards was submitted on the briefs to all the judges.</p>

Tort, for personal injuries occasioned to the plaintiff by an alleged defect in the sidewalk on Middlesex Street in Lowell. At the trial in the Superior Court, before Hammond, J., the jury returned a verdict for the defendant, on the ground that they were not satisfied that the defect was within the limits of the way as laid out by the defendant city; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Contract, upon judgments of the Court of Common Pleas in Pittsburgh, Allegheny County, Pennsylvania. The two actions were tried together, by agreement of parties, before Sherman, J. The jury returned verdicts in both cases against the defendants, Crafts and Foote, and they alleged exceptions. The facts appear in the opinion.</p>

<p>Personal Injuries — Demurrer — Due Care — Notice — Employers’ Liability Act.</p> <p>In a demurrer which goes to the whole ground of action, or to the whole defence stated in the answer, it is sufficient to aver the cause in the general words of the Pub. Sts. c. 167, § 12; but where mere defects or omissions in the form of statement are relied on, they must be specially pointed out.</p> <p>In a declaration in an action of tort for an injury received by the plaintiff, the employee of a railroad corporation, an averment that the plaintiff “duly" gave notice of the time, pla.ce, and cause of the injury is sufficient.</p> <p>Where, in an action of tort for an injury received by the employee of a railroad corporation, a notice is given, purporting to be for the person injured, by an attorney at law, especially if he afterwards represents the plaintiff in his action, express authority to give the notice, if such notice is necessary, may be presumed, in the absence of anything to show the contrary.</p> <p>In an action of tort for an injury received by the employee of a railroad corporation, the evidence tended to show that it was customary to examine trains in motion, and that the plaintiff was inspecting such a train ; that the other train came upon him unexpectedly and rapidly, without such warning and signal as he might well expect to have; that his duty.called upon him to work in dangerous places, where it would be careless for ordinary persons to go; and that there was a brakeman upon the coming train who, according to the usual custom, and in the proper discharge of his duty, would either slacken the speed of the train or give sufficient warning to enable the plaintiff to get out of the way. Held, that there was sufficient evidence for the jury that the plaintiff was in the exercise of due care.</p> <p>The provisions of the St. of 1887, c. 270, § 1, cl. 3, which provide for recovery in case of personal injury caused to an employee “ by reason of the negligence of any person in the service of the employer who has the charge or control of any signal, switch, locomotive engine, or train upon a railroad,” include, in case of a railroad corporation, every person, and must be deemed to mean any person in the service of the company who has charge or control for the time being of the train by which the employee was injured,</p>

<p>Devise—11 Dome ” —Residuary Clause — Condition — Absolute Estate.</p> <p>In a petition by executors for instructions as to the construction of a will, the testator’s intentions must be gathered from the will itself, viewed in the light of existing circumstances •, and declarations as to his wishes and intentions are inadmissible.</p> <p>Where a bequest was, “ To my sister E. a home at my house as long as she lives, and I direct that my executors attend to this,” it was held, from the character of the testator’s family, the extent of his property, the nature of his dwelling-house, the physical condition, advanced age, and moderate income of the legatee, and her relations to the testator, the meagre provision made fur her in the residuary clause of the will, the fact that she had received from the testator in her lifetime when living in his home her support after becoming unable to work, and the statement in the bequest, “ arid I direct that my executors attend to this/' that the testator intended that the executors should not only allow her to live in the house, but that they should furnish to her there her necessary food and fuel, though not her clothing; and that, the daughter’s constant attendance upon the mother being contemplated, the same, construction was to be given to another article of the will devising to the daughter a home at the house so long as her mother should live.</p> <p>By the residuary clause of his will, a testator provided that “ One half of my remaining property I give in trust to my executors, to be given to my daughter C. as soon as they shall dispose of the same. . . . The above provision for 0., my daughter, is made on condition she remains single. This provision has reference to what is given my daughter by clause 3 as well.” Clause 3 was as follows: “To my daughter C., the house on High Street in said Westborough, now owned by me, and in which she lives.” Held, that C. was entitled to her share of the residue as soon as the executors should dispose of the same.</p> <p>A pecuniary legacy to the testator’s adopted son, “ in trust to my executors,” goes to the legatee absolutely free from any trust.</p>

<p>The first case was a complaint to Oscar A. Harden, Esq., a trial justice for the county of Norfolk, charging the defendant with the illegal keeping of liquors in Canton on April 20, 1890.</p> <p>At the trial in the Superior Court it appeared that, at the trial before Mr. Harden, the defendant, on a complaint for the same offence sworn out May 15, 1890, had been brought before Thomas E. Grover, Esq., a trial justice for the same county, on the 19th of the same month, and that the case had been several, times continued, finally to June 17th following, when it was continued nisi.</p> <p>Bishop, J. declined to rule, as the defendant requested, that the above proceedings amounted in law to a discharge of the defendant, and constituted a defence to the prosecution, and the defendant alleged exceptions.</p> <p>It appeared that the defendant was in the first instance brought before Peter Daily, Esq., a trial justice, for examination, on December 10, 1890, but there was nothing in the record to show how the jurisdiction was transferred to Mr. Marden. The presiding judge overruled the defendant’s motion to quash the proceedings.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Contract, against Luther H. Felton and Frederic L. Felton, copartners under the name of Felton and Son; Nahum Chapin and George F. Chapin, copartners under the name of Chapin, Trull, and Company; Daniel R. Sortwell and Alvin F. Sortwell, copartners under the name of Sortwell and Company; and William Ward, Thomas A. Ward, and Frederick H. Ward, copartners under the name of William Ward and Sons.</p> <p>The declaration was as follows:</p> <p>“ And the plaintiff says that the defendants are rum distillers, and that on or about Sept. 12, 1889, they entered into an agreement in writing, which was drafted for them at their request' by the plaintiff, who was employed by them, for the purpose of effecting a complete and permanent unity of interest between their several distilleries, in the form of a copartnership or trust, a copy of which agreement is hereto annexed, marked A, and made a part of this declaration.</p> <p>“ And the plaintiff further says, that by the terms of said agreement the business of the distilleries belonging to the defendants, and of such other distilleries as should become united in interest with them, was to be capitalized at one million dollars, and it was agreed that the amount of said capital might be increased, if necessary. It was further provided by said agreement, that a complete plan of such unity of interest and for tho accomplishment of the other purposes therein contemplated should be prepared at once, and that in all other respects the purpose contemplated should be consummated at once, and that all future action to which the defendants should agree was to be binding upon them, and, in the event of any difference between them, any and all action should be binding upon the defendants to which any two of them should agree who together represented a majority in interest, with the addition, so far as concerned legal matters, of John E. Parsons, and, so far as concerned all other matters, of the plaintiff.</p> <p>“ And the plaintiff says that he performed a vast amount of work for the defendants, at their request, and expended a large sum of his own money in connection with said agreement of Sept. 12, and that thereafter, on Oct. 16, 1889, the defendant Frederic L. Felton, duly authorized thereto by the firm of Felton and Son-, made an agreement with the plaintiff in behalf of the defendants, a copy whereof is hereto annexed, marked B, and made a part of this declaration, by which it was agreed that, the defendant Sortwell or the defendant Chapin assenting, there should be paid to the plaintiff ten per cent of the original capitalization of one million dollars, provided for by the agreement of Sept. 12, 1889, above referred to, for and in consideration of the services rendered by the plaintiff to the trust arranged between the defendants as per said agreement of Sept. 12, 1889, and in consideration of other services and attention to be given to the interests of said combination or trust by him, except in the matter of service that might be rendered by him as an officer of the trust. And the plaintiff says that he has rendered whatever services were required of him by the defendants, and was and is ready to render any other services, and to give all necessary attention to the interests of said combination or trust, and he has faithfully performed or has been ready and willing to perform all which was required or to be required of him under or by virtue of said agreements, all of which is well known to the defendants. And the plaintiff says that Sortwell & Co., who, with said Felton and Son, represent a majority in interest, have agreed and assented in behalf of the defendants as provided in said agreement of Oct. 16, 1889, and the plaintiff says he is entitled to $100,000 of the original capitalization aforesaid, but the defendants have refused, and, though often requested by the plaintiff, do still refuse, to carry out their agreement. And the plaintiff says the defendants owe him $100,000, and interest thereon from Nov. 1, 1889, to the date of plaintiff’s writ.”</p> <p>The agreement A set out that the above named parties, “ being desirous of effecting a complete and permanent unity of interest between their distilleries, and also between their and other distilleries, and, preliminary to that purpose, wishing at once to accomplish such unity of interest between themselves, leaving details and the union of other distilleries to be arranged hereafter,” covenanted and agreed that from and after November 10, 1889, “ the business of their several distilleries shall be united in interest; the proprietors of each distillery shall contribute its business to the common interest; and the subscribers, as proprietors of their several distilleries, shall be interested in the united business of such distilleries ” in the proportion therein set forth. It further set out the undertakings as declared, article 7 providing as follows : “ A complete plan for such unity of interest and for the accomplishment of the other purposes "herein contemplated shall be prepared at once, and in all other respects the purpose contemplated shall be consummated at once. All future action to which the four representatives above mentioned shall agree shall be binding upon the subscribers. In the event of a difference, any and all actions shall be binding upon the subscribers, to which shall agree two of the above representatives, together representing a majority in interest, with the addition, so far as concerns legal matters, of John E. Parsons, and, so far as concerns all other matters, of Richard 0. Sibley.”</p> <p>The material part of the agreement B was as follows:</p> <p>“ For and in consideration of the services rendered by R. 0. Sibley to the trust arranged between Messrs. Ward, Sortwell, Chapin, and Felton, as per agreement of Sept. 12, 1889, and of other services and attention to be given to the interests of said combination or trust by him, except in the matter of service that may be rendered as an officer of the trust, it is hereby agreed by and between R. C. Sibley and Frederic L. Felton that, Mr. Sortwell or Mr. Chapin assenting:</p> <p>“ 1. R. C. Sibley is entitled to receive ten per cent of the original capitalization of one million dollars provided for by the said agreement of Sept. 12, 1889.”</p> <p>“ 2. For the management of the affairs of the trust a board of directors shall be appointed, to consist of five, namely, Messrs. Ward, Chapin, Felton, Sortwell, and Sibley. That a majority of interest of that board, together with R. C. Sibley, shall control the acts of the board.”</p> <p>The defendants demurred to the declaration, on the ground that the alleged agreement set forth as a part of said declaration was uncertain, indefinite, and incomplete, and did not purport to be a final or complete contract or agreement between the alleged parties thereto, but only preliminary to the indefinite purposes and objects set forth or referred to therein; and the same was not a definite, complete, final, or binding agreement between the alleged parties, or any of them, in regard to the subject matters thereof, but was null and void in law.</p> <p>The Superior Court sustained the demurrer, and ordered judgment for the defendants; and the plaintiff appealed to this court.</p>

<p>Forcible Entry and Detainer — Probate Appeal — Guardian and Ward — Decree.</p> <p>The removal of a guardian by a decree of the Supreme Judicial Court terminates the guardianship, and the sending the case back to the Probate Court for further proceedings does not qualify the terminating effect of the removal.</p> <p>When the guardianship of an insane person has terminated, and a controversy has arisen between third parties, one of whom claims under a contract made with the ward after the termination of the guardianship, the reason ceases for regarding the decree of the Probate Court as conclusive on the question of the ward’s sanity.</p> <p>A guardianship may be terminated as well by death, removal, or resignation as by a discharge, and no method is provided in which, after a guardianship has for any cause ceased, the decree on which it was based may be annulled.</p>

<p>Special Finding of Jury — A dverse Possession — Admission — Purchase of Outstanding Claim of Title.</p> <p>A writ of entry to recover a parcel' of land will not lie under the Pub. Sts. o. 196, § 1, if neither the demandant nor his predecessor in title was seised or possessed of the demanded premises within twenty years from the date of the writ; and the fact that the defendant did not honestly believe that he had title to the land is immaterial.</p> <p>The evidence was conflicting whether or not, about four or five years before the bringing of a writ of entry to recover a parcel of land, the tenant offered to purchase the land of the demandant’s predecessor. Held, that the judge rightly left to the jury what the conversation was, and instructed them that the mere attempt to purchase by the tenant would not be decisive against his claim, as his motive may have been to pay something to avoid litigation on account of some doubt he may have had as to the validity of his title; but if the conversation was an admission that he had and claimed no title to the land, then it was important evidence, as tending to show that his possession during the twenty years was not adverse.</p> <p>A person in possession of land, claiming ownership, may purchase an outstanding claim of title from a third person, without abandoning or impairing his own title by adverse possession.</p>

<p>Personal Injuries —Waiver of Exceptions — Evidence — Negligence — Duty of Railroad — Refusal to rule — Due Care.</p> <p>In an action against a railroad company for injuries occasioned to a brakeman in its employ, an exception to the admission of evidence that the platform by the track was a proper place for the plaintiff to run upon was waived by the defendant’s counsel stating in his closing argument that he should not contend that the boxing or planking was not a place where brakemen were likely to run in the performance of their duties, or that it was not convenient for them to run there, or that the defendant had not reason to contemplate that the brakemen would so use it.</p> <p>In an action against a railroad company for injuries occasioned to a brakeman in its employ, there was evidence that the accident, which occurred after dark, was caused by a loose board on a platform beside the track. Held, that evidence was admissible to show the presence of such a board at or near any place where, on the evidence, the jury would have been warranted in finding that the accident took place.</p> <p>In an action against a railroad company for injuries occasioned to a brakeman in its employ, it appeared that the plaintiff was injured while running in the night on a platform on which he had a right to run in the discharge of his duty. Held, that the court could not say, as matter of law, that he was guilty of negligence in stepping on the edge of the platform, although but a few inches intervened between him and the moving cars.</p> <p>An action was brought against a railroad company for injuries occasioned to a brakeman in its employ by stepping on a loose board on a platform beside the track. Held, that the jury were rightly instructed that it was incumbent on the defendant, not only to employ suitable persons to keep its works in repair, but also to use reasonable diligence to see that they performed their duty.</p> <p>In an action against a railroad company for personal injuries sustained by a brakeman in its employ, the defendant asked the court to instruct the jury that it was entitled to reasonable notice of the existence of the defect complained of, and an opportunity thereafter to repair the same. Held, that the request was rightly refused, as it entirely omitted to refer to the liability of the defendant, if the latter might, by the exercise of reasonable care, have known of the defect.</p> <p>In an action against a railroad company for personal injuries, the refusal to rule that upon the whole evidence the plaintiff was not entitled to recover was held to be correct, as it was a question for the jury whether the plaintiff ivas in the exercise of due care, and there was evidence of negligence competent to be submitted to them.</p>

<p>Tort, for injuries occasioned to the plaintiff on January 21, 1890, in consequence of alleged defects in a public way in the defendant town. The defects alleged consisted of insufficient width of the way in a causeway leading to a culvert, and the want of sufficient railings, fences, and barriers thereto, the plaintiff contending that in consequence thereof the buggy in which'he was riding was thrown from the causeway.</p> <p>The defendant admitted that the way at the place in question had been in substantially the same condition for several years before as it was at the time of the alleged accident, and that the defendant had notice of such, condition.</p> <p>The defendant offered in evidence the population of the town, the assessed valuation of the property therein, the rate of taxation, and the amount of the appropriation for highways, all for the year 1889, and the number of miles of public ways therein. The evidence was admitted.</p> <p>The selectmen of the town were surveyors of highways at the time of the alleged accident.</p> <p>Two of the selectmen who were in office at the time of the alleged accident were called as witnesses by the defendant. The plaintiff offered evidence of statements made, since the accident, by one of them named Whitaker, to the effect that he had long known the way at the place in question to be unsafe, and that he had, since he had been in office, been trying to have the same repaired. The evidence was excluded.</p> <p>Whitaker when on the stand had, on cross-examination, denied making such statement, whereupon the plaintiff introduced evidence tending to prove that such statements were made by Whitaker, the same being the evidence which had been excluded.</p> <p>The plaintiff requested the court to instruct the jury that evidence of admissions of one of the selectmen as to the dangerous character of the road is admissible as tending to show that fact.</p> <p>The court declined so to instruct the jury, and instructed them that the statements, if made by Whitaker, were admissible only to contradict him, and had no other effect as against the defendant.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Two ACTIONS OE tort, brought by Michael Creed, administrator, and individually arising out of the same injury, and tried together in the Superior Court, before Dunbar, J. It appeared that the defendants, by virtue of a contract with the Chelsea Gas Company, were engaged in the erection of poles to support electric wires and lights on Williams Street, a public highway in Chelsea; that Williams Street is thickly settled at the point where the accident is alleged to have…

<p>Tort for personal injuries occasioned to the plaintiff, on May 15,1890, while in the defendant’s employ. The declaration was as follows:</p> <p>“ First count. And the plaintiff says that he was engaged in the work of storing hay in a building off Huntington Avenue, in Boston, in said county of Suffolk, and was in the exercise of due care. And the plaintiff says that the defendant, by its servants and agents, had piled certain bales of hay near to where the plaintiff was working, as aforesaid, so negligently and carelessly that the same fell upon the plaintiff while so at work, and struck him upon the neck and back, thereby severely injuring him. And the plaintiff says that the cause of the falling of the said bales of hay and of the said injury was the negligence and carelessness of the defendant's servants and agents in storing and piling the said bales in an improper and unskilful manner.</p> <p>“ Second count. And the plaintiff says that he was employed by the defendant to work in the defendant’s building, situated off Huntington Avenue, in said Boston, and was in the exercise of due care. And the plaintiff says that, while he was employed as aforesaid under the direction of the defendant’s superintendent, certain bales of hay fell upon the plaintiff, striking him upon the neck and back, and severely injuring him. And the plaintiff says that the cause of the falling of said bales and of the said injuries was the negligence and carelessness of the said superintendent in directing the plaintiff to work in a dangerous and unsafe place, which the said superintendent knew and ought to have known to be dangerous, and of which the plaintiff was ignorant, and also by the negligence and carelessness of the defendant’s superintendent in carelessly and negligently piling said bales of hay in an improper and unskilful manner. And the plaintiff says that the principal duty of said superintendent was that of superintendence; and the plaintiff says that within thirty days from the time of said accident and injury he gave written notice to the defendant of the time, place, and cause of said injury.”</p> <p>Trial in the Superior Court, before Hopkins, J., who, after the evidence was all in, directed a verdict for the defendant, and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Tort for injury to the plaintiff’s goods, caused by the leaking of water from pipes wdiich the plaintiff contended the defendant was bound to keep in repair, but had negligently suffered to be out of repair.

<p>Tort, against the Old Colony Railroad Company and the Union Freight Railroad Company, under the St. of 1887, c. 270, by the plaintiff, as widow of one Isaac Trask, to recover for his death, caused on the tracks of the Boston and Maine Railroad, in Boston, on May 18, 1890. Trial in the Superior Court, before Barker, J., who, at the close of the evidence, directed a verdict for both of the defendants, and ordered a judgment to be entered for the Old Colony Railroad Company, without prejudice to the right of the plaintiff to prosecute his action against the Union Freight Railroad Company, as though it had been the sole defendant.</p> <p>It appeared in evidence that the tracks of the Union Freight Railroad Company were laid upon Causeway Street, and from Causeway Street through Haverhill Street to the end thereof, where the tracks of the Boston and Maine Railroad began. The tracks of the Union Freight Railroad Company were constructed with longitudinal sleepers, connected by cross ties, upon which were laid the ordinary flat street railway rail. The track of the Boston and Maine Railroad Company was the ordinary steam-railroad T rail track, laid upon cross sleepers, and the two tracks, which were level, physically connected, so that engines and cars could and did pass from the one to the other.</p> <p>The Boston and Maine Railroad track was a spur or branch track, extending from its main tracks to the track of the Union Freight Railroad, and was used to transfer freight from its main tracks to the track of the Union Freight Railroad Company.</p> <p>The track of the latter company was maintained and kept in repair by that company, and the track of the Boston and Maine Railroad was maintained and kept in repair by that company. The Union Freight Railroad Company had nothing to do with maintaining or repairing the track of the Boston and Maine.</p> <p>The plaintiff’s counsel claimed to recover only on account of an alleged defective joint in the Boston and Maine Railroad track, by which he claimed that the death of Trask was caused.</p> <p>It appeared that cars to be delivered or transferred from the Boston and Maine Railroad to the Union Freight Railroad were usually placed upon the above described Boston and Maine track, or the connecting Union Freight track, there being no exact position for them to be placed upon either track. They were sometimes left wholly upon the Boston and Maine, sometimes wholly upon the Union Freight track, and sometimes partly upon each.</p> <p>The Union Freight Railroad Company’s engine, with its men, would come down upon its track, and connect with and draw out the cars thus left. Generally it could fasten upon the cars without going upon the Boston and Maine tracks, but sometimes it was obliged to go down upon these for that purpose.</p> <p>After the engine was fastened to the cars, the brakeman or flagman of the Union Freight men working with the engine would go over the cars to free or loosen the brakes, and after the connection had been made between the cars and the engine, the engine and cars were wholly managed by the Union Freight employees; and in loosening brakes and bringing out the cars they would have often to be upon cars then on the Boston and Maine portion of the track, and in motion.</p> <p>A few feet beyond the end of the Union Freight track, and at the right hand side of the Boston and Maine track, was a small freight-house, known as the “ little house.”</p> <p>On the morning of May 18, 1890, between one and two o’clock, a train of twelve ice cars was standing by the “ little house,” so called, some of the cars upon the Union Freight track towards Causeway Street, and some upon the Boston and Maine track alongside of the “ little house,” and some upon the Boston and Maine track beyond the “little house,” toward the main line.</p> <p>In the right hand rail of the Boston and Maine Railroad track, coming from Causeway -Street toward the main line of the Boston and Maine Railroad, and about six feet beyond the farther corner of the “little house,” there was a defective joint. At this joint there was no fishplate to connect the rails, and the end of the farther rail nearer the main line was about two inches higher than the end of the rail toward Causeway Street, and there was a space of about two inches between the ends of the rails.</p> <p>There was evidence that the end of the farther rail rested in the chair, of which the spikes were loose and stuck up half their length, and the end of the nearer rail toward Causeway Street did not rest in the chair, but was on the ground. The joint was described as old, bad, rusty, and dirty, and the spikes and the chair as rusty, and the whole chair as “ loose to kick,” and there was evidence as to what was required in a good joint.</p> <p>The dummy of the Union Freight Railroad Company, with a gang of men, consisting of an engineer, fireman, two brakemen, and two flagmen, in charge of a conductor by the name of Grace, backed down on the Union Freight Railroad Company’s track on Haverhill Street, between one and two o’clock on the morning of May 18, 1890, and coupled on to the train of ice cars above described, for the purpose of drawing them out upon the Causeway Street track. Isaac Trask, who was one of these brakemen, got upon the train at the forward end, on the Union Freight track, and went backward along the train, throwing off the brakes preparatory to starting; he was seen going along the top of the train toward its rear end, and when he had let off all the brakes on all the cars, and was on the Boston and Maine track, he gave a signal to the fireman of the dummy from the rear end for the train to go ahead. Ho one else was on the top of the cars, but the other trainmen were at their proper stations.</p> <p>One Callahan, a brakeman, testified that he was standing on the ground, by the side of the train, just beyond the “ little house ”; that soon after Trask gave the signal to go ahead, he gave an order to Trask to signal to stop the train; that at this time Trask was standing on the train, on the side of the train opposite the 66 little house,” about the middle of the third car from the1 rear end of the train; that immediately after giving the signal, Trask went forward on the cars toward the dummy to the forward end of the third car, and the witness heard a noise between the front end of the third car and the back end of the fourth car from the rear of the train, that sounded like the noise of setting brakes; and that the noise appeared to be at a point about fifteen feet back of the farther corner of the “ little house,” toward the Boston and Maine line, and nearly up to the bad joint, as the train moved toward Causeway Street, but the witness could not see Trask.</p> <p>Callahan further testified, that, immediately after the accident, he examined the brakes between the third and fourth cars where he had heard the noise, and found the brake on the front end of the third car from the rear of the train fully set, and that on the back end of the fourth car partly set. These brakes were arranged with sill steps, so called. The dog and ratchet were on a sill step about ten inches wide, and about eighteen inches below the top of the car; and such brakes could not be set by a man standing on the top of a car, but must be set by one standing on the sill step, in order to work the dog into the ratchet with his foot, as the wheel of the brake was turned ; and that after the accident he went back with the fireman, one Burdain, and found Trask’s lantern and hat lying near together between the rails of the Boston and Maine track, within a few feet of the joint above described, and almost opposite to it, and about a foot nearer the draw than the joint.</p> <p>Burdain testified that he was in the cab of the engine; that he saw Trask get upon the head of the train with a red lantern, and go back over the tops of the cars, throwing off brakes; that when Trask had reached the rear end of the train, Trask gave him the motion to go ahead, and the dummy then started slowly forward towards Causeway Street, at a speed of about one or two miles an hour. After proceeding a short distance, Trask gave him a motion to stop, and almost immediately after-wards he saw Trask’s lantern whirl round and disappear; that at the time he had no idea that an accident had occurred, and the motion of Trask’s lantern gave him no intimation thai; anything unusual had happened; that he first knew of the occurrence of the accident when the dummy had pulled up beyond the switch, and the conductor called out to him to stop, and told him that there was something under the train, which after-wards turned out to be Trask’s body.</p> <p>There was evidence that the ice cars were from fourteen to fifteen feet long, with two wheels at each end, the axles being about three feet from the ends, and that in passing over a bad joint the cars would give a quick, strong sway and jar, and would be affected more than an ordinary freight car of twenty-eight or thirty feet in length; that the space between the cars was from two and a half to three feet.</p> <p>The first blood spot was found on the track about six feet from the joint before described, in the direction in which the cars were moving, and nearly under the farther corner of the roof of the “ little house ”; that the body was found at the switch on Haverhill-Street, on its back, the head toward the left side of the track, as the train was going; that the body was almost cut in two; and that there were spots of blood, etc. between the first place and the place where the body was' found.</p> <p>There was evidence that Trask was in perfectly good health, and sober, at the time of the accident; that he had worked as flagman or brakeman, off and on, for about two months, during which time he had repeatedly come in upon this track of the Union Freight Railroad Company, for the purpose of taking cars from the Boston and Maine Railroad, and that all the work was night work.</p> <p>The judge reported the case to this court for its determination. If the ruling at the close of the evidence was correct, judgment was to be entered on the verdict for the Union Freight Railroad Company; if incorrect, the verdict was to be set aside, and a new trial ordered.</p>

<p>Action of contract upon an indemnity bond given to a savings bank by Daniel W. Murphy, as principal, and Newell S. Atwood and Berthier R. Ballou, as sureties. The defendant Murphy was defaulted. The bond recited that Ellen Murphy at the time of her decease had deposited in the plaintiff institution for satdngs a certain sum of money; that Daniel W. Murphy, her executor, was unable to find the deposit-book, and was desirous of drawing the deposit; and provided that Murphy should indemnify the plaintiff corporation “ from and against any and all claims of any other person or persons ” to the deposit, etc.</p> <p>It appeared in evidence that Ellen Murphy of Stoughton, the testatrix, had in her lifetime an account with the plaintiff, beginning March 30, 1871, and closed on October 5, 1883, by the payment of the balance due her; that there was also upon the books of the plaintiff another account, also in the name of Ellen Murphy of Stoughton, opened on December 16, 1879, and still open at the giving of the bond sued on ; that the full name of the last named depositor was in fact Ellen L. Murphy, but the plaintiff did not know this until 1889; that Ellen Murphy, the testatrix, died soon after her account was closed, and upon demand made upon the plaintiff by the defendant Murphy, who supposed that the testatrix had an open account with the plaintiff, and that the pass-book was lost, found the open account standing on its books in the name of Ellen Murphy, but in fact belonging to Ellen L. Murphy, and paid the amount thereof to the defendant Murphy, and took for security the bond sued on; that afterwards, in 1889, Ellen L. Murphy appeared, produced the pass-book containing the account as paid to Ellen Murphy, proved property to the same, and the plaintiff paid her the amount thereof; and that at the time, and also when the bond was given, the plaintiff had in its possession the deposit-book of Ellen Murphy, but did not discover it till after the money was paid.</p> <p>Aldrich, J. directed a verdict for the defendants Atwood and Ballou. If such direction was right, judgment was to be entered upon the verdict; if wrong as to either or both of the defendants, then judgment was to be entered for the plaintiff accordingly.</p>

<p>Conveyance to Trustees for Creditors — Demurrer — Rights of Creditor.</p> <p>The members of a firm, both individually and as members, conveyed all their property to trustees for those creditors who should become parties to the conveyance “ratably and in proportion to the amounts due to each of them respectively, without any preference or priority, the creditors of said copartnership being first paid out of the copartnership property, and the creditors of said individuals out of the individuals’ private property respectively, and in case there shall be any surplus of the said trust property or effects after fulfilling the said trusts, then upon trust” that the trustees should convey the same to the assignors. There was a covenant by which the creditors severally agreed to take the estate in full payment of their debts, and release the debtors ; and the instrument provided that “ All claims for the purposes of this agreement shall be made up as cash on the date hereof.” The plaintiff was the payee and holder of a promissory note, signed by the firm as principal and by the members individually as sureties, which note had not matured at the time of the assignment. Since then the plaintiff had been paid its debt in full, made up as cash on the day of the assignment, and brought this bill in equity to recover interest. The assets of the trustees of one of the partners were more than enough to pay the interest, after paying all of his individual debts; but the assets of the partnership, together with the surplus of the individual estates of the partners, after paying the individual creditors, were insufficient to pay the firm creditors in full. Held, that the scheme was to divide the property ratably among the individual creditors and the firm creditors, the latter being “ first ” paid out of the firm assets, and the former out of the individual assets; that no force could be given to the use of the word “ first,” unless the surplus of one class, if any, should be applied to meet a deficiency in the other; that the effect of the provision that all claims should be made up as cash was to make up each creditor’s claim, by adding or abating interest, as of the date of the conveyance, and that, as the plaintiff had been paid its debt so made up in full, it had by becoming a party to the conveyance released the firm and its members, to whom the surplus of the proceeds of their property, if any, was to be paid after the trusts were fulfilled.</p>

<p>Promissory Note — Gift.</p> <p>If the payee undertakes to give the maker the principal of a promissory note and to retain the interest during his life, and keeps possession of the note for the purpose of having a claim for his interest, the attempted gift is a nullity; but after a title has passed by a completely executed gift, the donee’s rights are not affected by permitting the property to go into the possession of the donor for a special purpose.</p>

<p>Legatee of Fractional Part of Residue — Suit against the Administrator of Deceased Executor.</p> <p>A legatee of a fractional part of the residue of an estate in process of being administered in the Probate Court under a will cannot, in a suit at law, under the Pub. Sts. c. 136, § 19, recover of the administrator of the estate of the deceased executor of the will the amount of the legacy before the amount of the residuum has been ascertained, either in the Probate Court or by an action on the bond.</p> <p>As the administrator of a deceased executor is not charged with the administration of the first testator’s estate, an action cannot be brought by a legatee for a legacy against him, even if he is liable as administrator of the executor to the administrator de bonis non of the testator’s estate which the executor has not accounted for or has wasted or converted to his own use.</p>

Tort by the administratrix of the estate of Elisha McCreary, for causing his death upon the Eastern Division of the defendant’s railroad. After the decision in the former case, reported 153 Mass. 300, a trial was had in the Superior Court, before Blodgett, J., who ruled that, under the Pub. Sts. e. 112, § 212, the action could not be maintained, and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Petition, under the Pub. Sts. c. 191, to enforce a mechanic’s lien, for labor performed and materials furnished in the construction of a house on a lot of land in Cambridge owned by the respondent. The petitioner’s certificate recited that he “ performed said labor and furnished said materials by virtue of contract with E. H. Collapy, who was rightfully acting for the owner.”</p> <p>At the trial in the Superior Court, without a jury, before Aldrich, J., the respondents requested the court to rule that the suit could not be maintained, because the certificate did not contain “ a description of the property intended to be covered by the lien sufficiently accurate for identification,” and that the same could not “ be reasonably recognized from the description." The court refused so to rule, and directed that a decree be entered for the petitioner; and the respondents alleged exceptions. The material facts appear in the opinion.</p>

<p>Master and Servant — Scope of Employment.</p> <p>A bill-poster employed to post up bills in certain places went to a town about fifteen miles away and deposited them in the road. Two of the bills were blown by the wind against the horse of the plaintiff’s intestate, so that he took fright, ran away, and was killed. Held, in an action for the price of the horse against the owner of the bills, that, even if there was any evidence that the person who ; put the bills in the road was the defendant’s servant, and not an independent contractor, he was not acting within the scope of his employment, and the defendant was not liable.</p>

<p>Death after leaving Street Railway Cat Passenger — Due Diligence — Taking Case from Jury.</p> <p>One who steps from a street railway car to the street is not upon the premises of the railway company, but upon a public place where he has the same rights with every occupier, and over which place the company has no control. His rights are those of a traveller upon the highway, and not of a passenger; and if he is killed immediately after leaving the car by being struck by another car, his administratrix cannot maintain an action against the railway company under the St. of 1886, c. 140.</p> <p>While it may not be, as matter of law, negligent for one to leave a street car while in motion, or to attempt to cross a street car trdck without looking to see whether a car is approaching, yet neither of these acts is evidence of due care; and where the undisputed testimony showed that, in spite of warnings from those in his immediate vicinity, a passenger on a street railway car suddenly, without precaution, alighted therefrom, and was struck by another car and killed, it was held that his administratrix could not maintain an action against the railway company under the St. of 1886, c. 140.</p> <p>B, as a matter of common knowledge and experience, the court can see that, upon all the undisputed facts, the plaintiff’s intestate was not in the exercise of due diligence in alighting from a street railway car, and that his death, caused by , being immediately struck by another car, was in part attributable to his want of such diligence, the jury may be properly told, as matter of law, in an action against the company, that the plaintiff cannot recover.</p>

<p>Personal Injuries — Exception — Exclusion of Question — Release — Charge to Jury.</p> <p>A bill of exceptions which states that a party offered to ask a witness a certain question, and that the judge excluded it, without disclosing what reply was expected, or what was to be proved thereby, shows no ground of exception. , After a witness has testified on a subject at length and in detail, a question calculated to call out merely a repetition of the same testimony, either in substance or in detail, is properly excluded, in the absence of any statement from his counsel that any other answer is sought or expected.</p> <p>Where a party brought an action for personal injuries, alleging that he could neither read nor write, but not alleging that he did not know English, and it appeared that he had signed a release before the bringing of the action, which release he alleged was procured by fraud and signed by mistake in ignorance of its contents, it was held that the question put to him by his own counsel,</p> <p>“ Do you know the meaning of the word ‘ release ’ 1 ” was both faulty in form and immaterial.</p> <p>It is within the power of the court not only to state in its charge the evidence which has been given, but to show the jury the questions upon which the facts which it may prove bear, leaving to them its application.</p> <p>Where the plaintiff’s counsel stated, after the charge, that he excepted to the statement made therein that there was nothing to show that the plaintiff was not a man who understood the ordinary transactions of life, and the presiding justice said that if it had been suggested, or there had been anything to show, that the plaintiff was not a man of ordinary capacity, then he withdrew that part of the charge, and it did not appear that the counsel pointed out any such suggestion or made any request for the withdrawal of that part of the charge in response to the offer, it was held that the most natural construction of the reply to counsel was that it was itself a withdrawal of the instruction objected to; but if it was not to be so construed, and if the presiding justice had mistaken the position of the case and had inadvertently assumed a condition of facts different from the true one, that it was the duty of counsel, after such a statement, to call attention to the fact that there had been suggestions of incapacity, and that he could not complain that the instructions were not modified without showing his response to this offer on the part of the court.</p> <p>When a man capable of acting for himself, and who understands the ordinary transactions of life, understandingly and for a consideration executes a written release, it is a principle of law that his act discharges his cause of action, and it is the right and duty of courts to state and enforce the principle when the proper occasion arises.</p> <p>It is always within the province of the court, in charging the jury, to state as uncontroverted facts circumstances which, upon the pleadings and the evidence, although material, are not- in dispute, and to state what rule of law it will be proper for the jury to apply, if, in connection with such admitted facts, they shall find other facts from the evidence.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by falling into an elevator well in a public hotel in Boston, known as the Thorndike House.</p> <p>Trial in the Superior Court, before Hammond, J., who, at the close of the plaintiff’s testimony, ordered a verdict for the defendants ; and the plaintiff alleged exceptions. The material facts appear in the opinion.</p>

Contract, on an account annexed. The declaration contained a claim for various lots of worsted yarn delivered in September, 1886, each lot containing, a certain number of pounds, at a certain price per pound.

<p>When Cause of Action accrued — Account dated after Date of Writ.</p> <p>A case was sent to an auditor, who found for the plaintiS, and was tried by a jury on the auditor’s report with the same result. The declaration was on an account annexed for services, and the account, which gave a general description of the services without any dates, was dated three days after the date of the writ. The defendant did not set up in his answer that the services were performed after the date of the writ, and, apparently, no such question was raised before the auditor or at the trial. Held,, that the jury might well have found ’ that the auditor liad found that the services had been performed before suit, and that the date of the account was a clerical mistake. Held, also, that the court rightly refused to rule, as matter of law, that it appeared from the pleadings and evidence that the cause of action did not accrue until after the date of the writ.</p>

<p>Master and Servant — Negligence.</p> <p>In an action for negligently setting fire to the plaintiff’s premises, there was evidence that a workman who was sent by the defendant, a plumber, to make repairs in the plaintiff’s shop, took a lamp into a shafting box to mend the pipe, knowing that the box was soaked with oil. Held, that the judge was warranted in finding that a plumber who knew his business would not set fire to the box unless he was careless, and that, on the other hand, the plaintiff was warranted in assuming that the condition of the box was obvious, and would be noticed by the workman, and that the workman was aware that oil is easily ignited by flame.</p>

<p>Personal Services — Employer's Liability Act—Superintendence.</p> <p>The negligence for which the St. of 1887, c. 270, § 1, cl. 2, makes the employer liable, is that of a person “ intrusted with and exercising superintendence.” The employer is not answerable for the negligence of a person intrusted with superintendence, who at the time of, and in doing the act complained of, is not exercising superintendence, but is engaged in mere manual labor, or the duties of a common workman.</p> <p>Unless the act itself is one of direction or of oversight, tending to control others and to vary their situation or action because of his direction, it cannot fairly be said to be one in the doing of which the person intrusted with superintendence is in the exercise thereof, within the meaning of the St. of 1887, c. 270, § 1, cl. 2.</p>

Contract, to recover forty dollars for carting mortar to a building in Boston, and forty-nine dollars for materials furnished and labor performed and furnished in repairing certain portions of the walls and ceilings thereof.

<p>Lease of Dwelling — Implied Agreement of Fitness for Habitation.</p> <p>Where the agreement of record shows that the facts were to be treated by the Superior Court as evidence from which inferences of fact might be drawn, the only “matter of law apparent on the record ” which can be considered on an appeal is the question whether the judgment is warranted by the evidence.</p> <p>One who lets an unfurnished building to be occupied as a dwelling-house does not impliedly agree that it is fit for habitation, but in.a lease of a completely furnished dwelling-house for a single season, at a summer watering place, there is an implied agreement that the house is fit for habitation without greater preparation than one hiring it for a short time might reasonably be expected to make in appropriating it to the use for which it was designed.</p>

<p>Accident Insurance — Death — Meaning of Policy — Instructions to Jury.</p> <p>The condition in a policy of insurance providing for payment was proof that the insured should have sustained bodily injuries through external, violent, and accidental means, within the intent of the by-laws of the association and the conditions of the policy, and such injuries should have occasioned death within ninety days. The conditions referred to were that benefits should not extend to any case in which there should be no symptom or visible sign of bodily injury, nor in which death or disability occurred from disease or from any surgical operation, or medical or mechanical treatment, unless undertaken to relieve injuries entitling the member to the benefits of the association, “ nor to any case except where the injury is the proximate cause of the disability or death.” The insured, who died of peritonitis localized in the region of the liver, and induced by a fall, had previously had peritonitis in the same part, and the previous disease had produced effects which rendered him liable to a recurrence of it. In an action upon the policy by the widow of the insured, the judge charged the jury that the question whether peritonitis, if that caused his death, was to be deemed a disease, and the proximate cause of death within the meaning of the policy, depended upon the question whether or not before and at the time of the fall he was suffering witli the disease. If he was, then, although the disease was aggravated and made fatal by the fall, he could not recover; but if, owing to existing lesions caused by the disease, he not having the disease at the time, peritonitis was started, the defendant was answerable, although, if there had been a normal state of things, the fall would not have occasioned such a result. Held, that this ruling gave an interpretation to the language of the policy which was in accordance with the apparent intention of the parties, and which made the contract a beneficent provision for the beneficiaries named in it.</p> <p>Although the defendant’s exception to a refusal to instruct the jury was not argued, and was understood to be waived, the court observed that the instruction given on the point was sufficiently favorable to the defendant.</p>

Petition to enforce a mechanic’s lien, under the Pub. Sts. c. 191. Trial in the Superior Court, before Thompson, J., who found for the petitioners; and the respondent alleged exceptions. The facts appear in the opinion.

Contract, to recover a commission of two and one half per cent on the sale of a piece of real estate in Duxbury.

<p>Review — Bond — Evidence.</p> <p>A town which petitioned for review, under the Pub. Sts. c. 187, § 17, gave, according to § 19 of the same chapter, a bond signed by one of the selectmen as principal and the other two as sureties. The Pub. Sts. c. 161, § 101, authorize the execution of such a bond by any person other than the party, and the approval in the same manner as if executed by the party, if good reason appears to the magistrate approving. Held, that there was no ground for the suggestion that this only authorized the execution of a bond by a third person as agent. Held, also, that, while there might be a doubt from the language of the statute whether a finding of good reason was not implied by a simple approval, yet sufficient reason appeared on the face Of the papers in the fact that the petitioner was a town, and the respondent by appearing and going to trial waived the objection if there was any.</p> <p>Evidence, at the hearing on a petition for review, that the respondent sent a bill to the petitioner for the services for which he afterwards recovered the judgment sought to be reviewed, and that the bill was for a less amount than he sued for, conforms to the allegation of the petition that the petitioner believes that there is a good and substantial defence to the action; and the bill as an admission that less was due than was recovered tends to prove this allegation pro tanto.</p>

439, § 13. The award stated that the St. of 1889, c. 439, provided for the construction, maintenance, and operation of two systems of trunk and intercepting sewers within the city of Boston and seventeen other cities and towns in the Charles and Mystic River valleys. The first system, known as the North Metropolitan system, and having its outlet at Deer Island, included the East Boston and Charlestown Districts of Boston, and thirteen other cities and towns.

Tort, under the St. of 1887, c. 270, for personal injuries occasioned to the plaintiff while in the defendant’s employ. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

<p>Husband and Wife — Agency — Ratification.</p> <p>When a husband acts for his wife in the management or disposition of her property, and when his action naturally tends to accomplish her known wishes in regard to it, it needs but little evidence to warrant an inference that the action was authorized by her.</p> <p>On the issue whether the defendant authorized her husband to employ the plaintiff to sell or exchange her farm, or ratified his act of employing the plaintiff in her behalf, it appeared that the defendant’s husband assumed to act for her, and she availed herself of what he did, so far at least as to go with him and examine the property proposed to be given in exchange, after he had conducted the preliminary negotiations and had examined it himself. The plaintiff testified that the husband professed to have a right to employ a broker to dispose of the farm, and that he called it his own. The defendant’s husband testified that his negotiation did not look to the employment of a broker. Facts appeared at the trial which would justify the court and jury in believing that the defendant, conniving with her husband, deliberately attempted to suppress important evidence. Held, that the above facts were sufficient to warrant an inference that the defendant’s husband was originally authorized to make the arrangement which he made with the plaintiff, or that the defendant was informed of it and ratified it.</p> <p>The suppression of important evidence is always a fact to be weighed against the party suppressing it.</p>

<p>Promissory Note — Insolvency — Election — Statute.</p> <p>A. sued upon a firm note made while B. was a member thereof. B.’s defence was that, at dissolution the remaining partners agreed to pay outstanding debts, including the note, that they afterwards went into insolvency, and that A., having proved against them, discharged B. by force of the Pub. Sts. c. 157, § 125. It appeared that A.’s proof was subsequently expunged on his own petition; and he testified that, when he proved, he did not know of the partners’ agreement to pay the debts of the old firm. A. excepted to so much of the record of the insolvency proceedings as showed a petition that B. be adjudged a member of the firm, which petition had been dismissed by the judge of insolvency. Held, that A. proved on the footing that the remaining partners were properly in insolvency without B., and the judge had decided that they were, and that the decision had no bearing on the question whether the plaintiff was ignorant, as he claimed, of their agreement to pay the firm debts.</p>

<p>Tort, by the administrator of Daniel Sullivan, to recover under the Pub. Sts. c. 112, § 212, for injuries causing his death on June 8, 1887.</p> <p>At the trial in the Superior Court, before Mason, C. J., there was evidence tending to show that Sullivan and another boy named Scanlan were playing ball near the coal shed of the defendant on Lehigh Street, in Boston, and that the ball, while the game was in progress, was batted so that it fell upon the roof of the coal shed ; that the boys started to get the ball, going up into the interior of the coal shed out upon the roof of an ell through a window in the shed, and climbed upon the roof of the coal shed from there; that Sullivan procured the ball and threw it down, and then came in contact with two naked copper wires fastened to the roof of the shed, and used by the defendant to conduct electricity, and received injuries from which he died. The electric wires were used in the ordinary lawful business of the defendant, and were not designed as a trap. The plaintiff saved several exceptions to the exclusion of evidence, and also an exception to the refusal to submit the question of the due care of the plaintiff’s intestate to the jury.</p> <p>The judge, at the defendant’s request, directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Bill in equity, by the executor of the will of Eleanor Perry against Ella P. Smith, the next of kin of the administratrix, the administrator de bonis non with the will annexed of James Perry, the administratrix’s husband, and certain legatees under his will. The case was heard by Knowlton, J., who reported it for the consideration of the full court. The facts appear in the opinion.

<p>Exception — Evidence — Approval of Contract.</p> <p>It is a general rule that, where the bill of exceptions does not purport to state all the evidence, but on the contrary says that there was other evidence tending to prove the essential parts of the plaintiff’s case, an exception to the ruling of the presiding judge to a verdict will be overruled; yet where, in an action on an order drawn by a builder on the defendant society and accepted by it, the question of approval of the work by the building committee of the church as provided for in the order was the one pressed before the full court, it was held that the evidence was sufficient to warrant a finding for the plaintiff.</p>

Bill in equity, for instructions. Allen, J. reserved the case for the consideration of the full court. The facts appear in the opinion.

Tort, to recover for injuries occasioned to the plaintiff by an alleged defect in a public street in Cambridge, called Crescent Avenue. The injury was alleged to have been caused by a dead telephone wire hanging down into and upon the sidewalk of the street, and upon and across an electric light wire fastened to the Street side of the factory of A. H. Hews and Company, by whom the plaintiff was employed.

<p>Check — Presentment — Liability of Maker.</p> <p>A. had no funds in a bank and no authority from the bank to draw upon it. B. had a deposit account with the bank, and had given it authority to pay and charge to his account checks signed by A.; and the bank had been in the habit of so doing. An action was brought by the payee against A., the drawer of three checks, given for value, dated December 16, 1889, one for two hundred and fifty dollars, bearing a pencil memorandum, “ Draw Dec. 19th ”; one for one hundred and twenty-five dollars, bearing a similar memorandum, “Draw Dec. 26th”; and one for one hundred and twenty-five dollars, with a memorandum, “ Draw Dec. 28th.” The deposit of B. was never sufficient to pay any one of the checks, the bank had no authority to allow the account of B. to be overdrawn by the payment of such checks, and there was no evidence that it had ever pursued such a course. Meld, that the plaintiff was excused from presenting the checks, and that the defendant was liable.</p>

<p>Statute — Evidence — Negligence in Management of Sewers.</p> <p>In an action for damages occasioned by the filling up of the plaintiff’s docks by sewage discharged from the defendant’s sewers, it was held competent for the plaintiff to introduce in evidence a statute requiring the substitution of water-closets for privies in buildings situated on a street in which there is a sewer, and to show that the flow was largely increased after the substitution was made in a great number of houses along the line of the sewers which emptied their contents near the plaintiff’s wharf.</p> <p>Where, in an action for damages occasioned by the filling up of the plaintiff’s docks by sewage discharged from the defendant’s sewers, the report stated that the case was submitted to the jury under instructions not excepted to, it was held that it must be assumed that the plaintiff corporation was permitted to recover only on a finding by the jury that it was injured by the negligence of the defendant in the management of its sewers and the discharge of its sewage, and that the plaintiff had a right to erect wharves and artificially deepen its docks to make its property available for use, and its doing so did not relieve the defendant from liability for the consequences of the defendant’s negligence.</p>

<p>Joint City Convention — Counting of Ballot — Collector of Taxes— Mandamus — Bond.</p> <p>Although the use of the writ of mandamus to try the title to an office is unusual, yet it may be resorted to as the speediest and best method of settling the dispute of two rival claimants of a municipal office.</p> <p>After two ineffectual ballots of the joint convention of a city council held on January 5, 1892, pursuant to the St. of 1873, c. 154, § 13, to elect a collector of taxes, a third was had, all the members voting, K. receiving fifteen and P. thirteen votes, and the mayor who presided declared K elected. A dispute arose over the second ballot, in which P. received fourteen, K. ten, and B. three votes, and there was one scattering vote, which the tellers and then the mayor declared to be illegible, and the mayor decided that no choice had been 'made. Some members thought that the vote was intended for P., and that it should • be counted for him. At a joint convention held two weeks thereafter, P. was declared elected a collector of taxes; the convention, without first attempting to remove K. for cause, under the St. of 1873, c. 154, § 13, voting that “ the third ballot, being the one which resulted in the choice of K. as collector of taxes, at the meeting of January 5th, be declared void.” The board of aldermen refused to accept the bond of K, on the ground that he was not elected to the office, and that P. was elected. Held, on a petition for a writ of mandamus brought by K. against the board of aldermen, that the writ should issue declaring P. not elected to the office, and commanding him to refrain from usurping the office and performing the duties, and declaring K. to have been duly elected thereto, and commanding the board of aldermen to consider the bond presented by him, and to accept or reject it as it might or might not be found satisfactory to them, and in the form required by law.</p> <p>This court cannot compel the board of aldermen of a city to approve a bond which is required by the Pub. Sts. c. 27, § 124, to be a bond “with sureties to their satisfaction.”</p>

<p>Trust Deed—Heirs of surviving Daughter— Tenant by the Curtesy.</p> <p>Trust property was to be divided to the heirs of a surviving, daughter of the creators of the trust, “in such shares and in the same manner as they would have held the same by the laws of Massachusetts if the said surviving daughter had died seised thereof in fee simple.” Held, that the surviving daughter had no power of disposition over the property by will, but that her husband, on her . death leaving no issue, was a statutory heir to an estate not exceeding five thousand dollars in value.</p>

<p>Commissions on Sales — Alleged Partnership.</p> <p>In an action for one half of the commissions upon certain merchandise sold by the defendants, it appeared that the contract, as applied to the only facts of which there was any evidence, showed that the parties, representing different interests, made an agreement, for a good consideration, which gave them no rights in common in the business conducted by the defendants, and gave the plaintiff no right to control the business or interfere with it. In consideration of what the plaintiff undertook to do for the defendants, they agreed to give him a commission on their sales, and the plaintiff sued for what he should receive in fulfilment of their agreement. Held, that, in the absence of evidence that the plaintiff was in partnership with the defendants, or that the commissions were made conditional on the defendants making profits, the plaintiff was entitled to recover.</p>

Contract, to recover for two hydraulic passenger elevators, with pumps, tanks, and piping and steam heating apparatus erected by the plaintiff in two apartment houses of the defendant in Boston. Trial in the Superior Court, before Ilophins, J., who directed, a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Foreclosure of Mortgage — Surplus — Interpleader—Plea in Abatement — Interest.</p> <p>When one sells the property of another by virtue of a power, the law implies an obligation that he shall account for and pay over the proceeds of the sale. The mortgagee under a power of sale mortgage obtains his power to sell from the mortgagor; but if before the sale the mortgagor has parted with his title to another person, who at the time of the sale stands in the relation of owner, the law, independently of any contract in the power, makes it the duty of the seller to pay the surplus to such owner. And in an action brought by the mortgagor’s grantee against the mortgagee, which action submits to the court the legal construction of the conveyance, it is open to the defendant to contest either its validity or its construction, as well as the amount due upon it, if a mortgage; and the fact that, in some possible controversy between himself and other parties, such parties may make claims with reference to it as to which the decision in the case in question will have no effect, is immaterial.</p> <p>The pendency of another action must be pleaded in abatement, and not in bar, and if the defence to an action is that the matter in controversy is already the subject of litigation, in which the rights of the parties may be adjudicated by a competent tribunal, the plea should show that the parties are before that tribunal. and that their rights may be there determined.</p> <p>The pendency of a bill in equity is not usually a sufficient ground for sustaining a plea in abatement to an action at law. If the defendant in the action at law is entitled to any advantage from the pendency of the bill, it is only by injunction from the equity court to stay the proceedings at law.</p> <p>If a mortgagee after a foreclosure sale under the power in a mortgage renders to the attorney of the mortgagor’s grantee an account of the sale showing a surplus, and files the same day a bill of interpleader asking that the title to such surplus may be determined, he is chargeable to the grantee in an action at law for such surplus, with interest thereon, from the day of rendering the account and filing the bill.</p>

Tort, for personal injuries occasioned to the plaintiff by striking her head upon a projecting sign placed against a post at the outside corner of the landing of the defendant’s building. Trial in the Superior Court, before Blodgett, J., who directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Endowment Order — Rights of Certificate Holder — Statute— Trust — Injunction.</p> <p>A corporation incorporated “ for the purpose of doing an insurance business, as provided in chapter four hundred and twenty-nine of the acts of the year eighteen hundred and eighty-eight,” is not within the authority of § 8 of that statute, if it employs paid agents in procuring business other than in the preliminary organization of local branches, and the certificate holders may refuse to pay further assessments under their certificates without incurring a forfeiture, and come into equity for distribution of the fund, which is a trust, especially where all proper efforts to obtain relief in the order have been made and have failed.</p>

<p>Contract, brought by the administrator of the estate of Joseph H. Poor, to recover S3,000 on a benefit certificate in the defendant corporation, issued to Poor for the benefit of William L. Putnam, “ dependent friend.”</p> <p>The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on agreed facts, which appear in the opinion.</p>

<p>Treasurer of Corporation—Action for Services — Foreign Law — Recoupment.</p> <p>In an action against a corporation, brought by the plaintiff for services as treasurer, it appeared that the defendant was organized under the laws of New York to build and operate an elevated railroad in Brooklyn. The capital was fixed at $1,000,000, and $50,000 was paid at the organization to the commissioners of rapid transit, who retained $5,150, and gave a check for the balance, $44,850, to the order of the plaintiff as treasurer. The statutes of New York were not put in evidence. Five per cent of the capital stock was required to be paid to the commissioners, and K., S., A., and W. paid this sum, with the understanding with B., one of the promoters, and R., that what was received back should be paid to them. The directors voted to buy certain patent rights for $994,850. This sum and the $5,150 made up the $1,000,000. R. testified that he first gave his check for $994,000 or $995,000 for the stock of the company, and that this was given back to him for the patents, but that afterward, in substitution, he gave a check for $950,000, which was returned to him, and that he drew an order on the treasurer for $44,850, payable to K., being “ for balance due me on elevated railway patents,” which the plaintiff, as treasurer, paid to K., who distributed it among the contributors. The check for $950,000, and this order, made up the amount of $994,850, which was agreed to be paid to R. for the patents. The original agreement was that one third of the capital was to go to S., A., K, and W., one third to B. and S., and one third was to be held as treasury stock. The holders besides K., S., A., W., B., R., and the plaintiff, had only small amounts of stock, for which they had paid nothing, and which had been put in their names to make up the number of subscribers required by law. Held, that the ruling asked for, that the payment by the plaintiff was a violation of his duty as treasurer, and caused a damage to the company much greater than the amount of his claim against the company, was rightly refused, because it might appear, if the statutes of New York were in evidence, that the payment by the plaintiff was not a violation of his duty under the vote to buy the patents, and because the jury might find that all interested in the stock had authorized or ratified the payment.</p>

<p>Way by Necessity — Duty of the Owner of the Servient Estate — Tenancies created after the Adverse Use has commenced.</p> <p>Whether, on a conveyance of a lot of land, a way by necessity arises by implication from the deed in favor of some other lot of the grantor can only be determined by an examination of the title of all the land surrounding this other lot.</p> <p>Where a right of way is known to exist, it may be that acts of the owner of the dominant tenement in using the way, if consistent with his right, are to be referred to it, unless a different claim of right is made known to the owner of the servient tenement; hut this rule can have no application where it is not shown that the owner of the servient tenement knew of any right of way, and acquiesced in the user on the ground that it was in pursuance of the right.</p> <p>As a right of way by necessity once existing may .cease in consequence of the conveyance of either the dominant or servient estate, or of other estates surrounding the dominant estate, or of the grants of private rights of way, or of the laying out of public ways, it may often be true that it is as much the duty of the owner of the servient estate as it is that of the owner of the dominant estate, to ascertain when the right of way ceases.</p> <p>The fact that certain persons have a right of way by grant does not prevent other persons from acquiring a prescriptive right to the use of the way.</p> <p>The rule that the acquisition of an easement by adverse use follows the analogy of the acquisition of title by adverse possession, and that a disability arising after the adverse use has commenced and has become known to the owner of the servient estate does not suspend the acquisition of the right or extend the time necessary to acquire it, applies to tenancies created after the adverse use has commenced.</p>

<p>Will — Devise of Remainder — ‘ ‘ Families. ’ ’</p> <p>A testator by his will provided that the remainder of his estate should be equally divided between the families of himself and his first wife and of himself and his second wife. By his first wife, who had been dead many years, he had two children who survived him, H., who was also married and had two children, and C., who was unmarried. H. and his wife and children were not living with the testator when the will was made or when the testator died, but formed one household by themselves. By his second wife, who survived him and who waived the provisions of his will, pursuant to the Pub. Sts. c. 127, § 18, the testator had one child, F., who also survived him; and at the time of his decease, this wife and the child, who was unmarried, resided with the testator. Held, that the testator did not use the word “ family " in the sense of including only the persons actually living with him as part of his household at the time when the will was made, and that the residue was to be divided, one half to F., one fourth to H.¡ and one fourth to C.</p>

<p> Certified Check—Liability of Drawer. </p> <p>If the drawer in his own behalf, or for his own benefit, gets his check certified and then delivers it to the payee, the drawer is not discharged; but if the payee or holder in his own behalf, or for his own benefit, gets it certified instead of getting it paid, then the drawer is discharged.</p>

<p>Tort, for personal injuries occasioned to the plaintiffs by the ■ explosion of a mortar used in a display of fire-works on the evening of September 27, 1888. At the trial in the Superior Court, the jury returned a verdict for the defendant, and Hammond, J. reported the case for the determination of this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1891, and after-wards was submitted on the briefs to all the judges.</p>

<p>Tobt, in the nature of trespass quare clausum. The plaintiffs discontinued their action against all the defendants except Frederick Gr. Whitcomb. Trial in the Superior Court, before Barker, J., who reported the case for the determination of this court, in substance as follows.</p> <p>No evidence was offered except the report and the supplementary report of an auditor to whom the case had been previously committed by the court under the ordinary rule, and except an offer to prove that two or three years before the bringing of this action the plaintiffs sought, in an action against the city of Boston, reported 139 Mass. 426, to.recover damages for injuries now complained of in this action.</p> <p>The material parts of the auditor’s report, after reciting the orders of the aldermen and common council, and petitions and reports, and the doings of Henry M. Wightman, as stated in Cavanagh v. Boston, 139 Mass. 426, were as follows:</p> <p>“ At the time of the acts complained of, the plaintiffs were, and have ever since been, the owners in fee of the northerly half of Wales Island and the flats adjacent thereto, situated in South Bay, in the city of Boston. Said Wales Island is a piece of upland marsh, and said northerly half thereof contains about forty-four thousand feet of upland, and there are about seventy thousand feet of flats adjacent and appurtenant thereto. The plaintiff John Cavanagh and his brother occupied together said upland for the storage of lumber and stock, and said flats for the storage of rafts, piles, and scows; and they there did a large pile business. Said flats were so landlocked and protected from wind, storm, and unusual roughness of water, as to form a very necessary and valuable place for the storage of rafts, piles, and scows, and for the conduct of a pile business. For some time previous to 1880, great complaint had been made to the city of Boston of a nuisance in a part of said bay above said Wales Island, being on flats in said bay south of the plaintiffs’ flats and away from them. No nuisance existed on the plaintiffs’ flats. In June, 1880, an order requesting the board of health to cause said nuisance to be abated was passed by both branches of the city government of Boston. In July, 1880, an order making a special appropriation for the purpose of constructing a dam across South Bay to abate said nuisance, and authorizing said board of health to have said dam constructed, was passed by both branches of said city government. At a meeting of the board of health, September 6,1880, it was voted to request the city engineer, then Henry M. Wightman, to abate said nuisance by erecting a dam according to a plan submitted by him. Thereafter said Wightman proceeded to ask for bids for the construction of said dam, and to make contracts for the labor and the materials to be used. A dam was then built in South Bay, — being begun and finished, so far as it ever was finished, in the fall months of 1880, — commencing upon that part of Wales Island belonging to the plaintiffs, and running three hundred feet in and upon the flats appurtenant to their upland to Pine Island Channel, so called, in and across said channel, and for some two hundred feet to the embankment of the New York and New England Railroad. The entire length of said dam was five hundred and twenty-two feet, with sluices twenty-four feet in length, and consisted of a line of sheet piling driven between two rows of spruce piles. Said piles were driven in pairs fifteen feet apart, except at the sluices, where they were driven full six feet apart. Said sheet piling was securely spiked near the top to a double line of spruce stringers, which were bolted to the piles with one inch in diameter wrought-iron bolts. A trench was dug some four feet deep, eight feet long, and two feet wide, upon the upland of the plaintiffs, and the piles and said pile sheeting were driven from about seven to ten feet into the flats.</p> <p>“ The defendant Whitcomb made said Wightman a bid for doing part of the work on said dam, which bid was accepted by said Wightman. And on or about October 4,1880, defendant Whit-comb went upon said South Bay, and upon the upland and flats of the plaintiffs, with tools, timber, piles, and men, and constructed in said upland and over and in the plaintiffs’ flats three hundred feet of said dam. And defendant Whitcomb did trespass upon the close of the plaintiffs, as they have declared. The fair rental value of the part of said Wales Island belonging to the plaintiffs is $500 per annum.' Said dam and construction has never been removed, and is still standing upon said upland and flats.”</p> <p>The auditor was of “ opinion that it was the duty of the plaintiffs to remove, as quickly as they reasonably could, said construction from their upland and flats, so as to diminish as far as they could the damage that might be caused by the building of said dam; that at least three months should be allowed the plaintiffs in which to remove said dam; and that the plaintiffs were entitled to the reasonable cost of removing so much thereof as was upon their land and flats, and that the materials thereof removed were valueless.”</p> <p>The auditor found that reasonable cost to be $1,192.50, to which sum was to be added the loss of the rental value of the close for three months, making the total sum of $1,817.50, which sum the auditor found to be due the plaintiffs for damage done them. The auditor said: “It was claimed by the plaintiffs that they were entitled, in a fair estimation of damages, to the rental value of their property from the day they say it became valueless to them, — say, from October 4,1880, to the date of the writ in this action, viz. to September 2, 1886. Being of contrary opinion, I have found them entitled only to the amount of said rental value for the time it would reasonably take to remove said construction on their land, to wit, for three months. If the court is of opinion that the plaintiffs were entitled to receive said rental value from said October 4, 1880, to said September 2, 1886, then to the aforesaid sum of $1,192.50 should be added the sum of $2,958.26, making in the total the sum of $4,150.76, which last named sum, in such case, I find to be due the plaintiffs in this action.”</p> <p>By the supplementary report the auditor found and reported that the defendant Whitcomb was liable for one half part of the damages which the plaintiffs are entitled to recover, and that the defendant Edwards (since discontinued against) was liable for the other half part thereof.</p> <p>The plaintiffs requested the judge to rule, and to instruct the jury, that they were entitled to recover a verdict for $2,075.38 and interest, being the half part of the larger sum found by the auditor; and the defendant Whitcomb requested him to rule that the plaintiffs were entitled to recover only the sum of $658.75 and interest, being the half part of the smaller sum found by the auditor. The judge ordered the jury to return a verdict for the latter amount. If the ruling was right, judgment was to be entered on the verdict, with proper interest; if wrong, and the plaintiffs’ request for ruling should have been granted, the verdict was to be set aside, and judgment entered for the plaintiffs in the sum of $2,075.38, being one half of the larger sum found by the auditor, with interest.</p>

<p>Variance — Exclusion of Evidence — Exceptions — Existence of Contract — Negligence of Contractor or of Owner of Land — Injury from Dust — Loss of Rent — Failure to except — Instructions.</p> <p>A plaintiff in an action of trespass testified to the matters set forth in the declaration, and also, apparently without objection, to other trespasses. Held, that a ruling was rightly refused that there was a variance between the declaration and the proof, and that the plaintiff could not recover for any of the acts or injuries shown by his evidence. Held, also, that if the defendant wished to exclude evidence of other trespasses he should have objected to it at the time, or have asked the judge afterwards to instruct the jury not to regard it.</p> <p>The principal question in an action of trespass arose out of the defendant’s contention that the work was done under a contract, and that the trespasses were caused by the negligence of the servants of an independent contractor. In the-first part of the bill of exceptions was a long paragraph beginning with the words, "It appeared,” and several lines further on were the words, “ that the defendant let all of the mason-work on the said building to one S., a contractor, under a special contract,” etc. The exceptions later set forth the evidence at length bearing on the question of the existence of an oral contract. Held, that the words “It appeared” were not to be interpreted as meaning that the existence of the contract was a conceded fact, and also that there was no error in submitting the question to the jury whether any such contract was made.</p> <p>The general rule that the owner of land is not liable for the negligence of the servants of an independent contractor does not apply, “ if the performance of a lawful contract necessarily will bring wrongful consequences to pass unless guarded against.”</p> <p>In an action for trespasses alleged to have been committed by the defendant upon the plaintiff’s estate while the former was putting up a building on his land, instructions that, if in the erection of the wall x>f the building there would be incidentally some dust, it would not be actionable, though somewhat inconveniencing the plaintiff, but if it proved to be a serious inconvenience and injury, which would deprive the plaintiff of the enjoyment of his premises for any considerable length of time, it would be actionable, were held to be correct.</p> <p>If the plaintiff has a cause of action against the defendant for trespasses committed upon his estate by the erection by the defendant of a building on his land, he is entitled to compensation for the diminution in his business and profits occasioned by the defendant’s acts, and evidence of loss of rent is admissible.</p> <p>If it does not appear that a party aggrieved excepted to the exclusion of certain evidence, this court will not consider whether it should have been admitted.</p> <p>In an action of trespass in the instructions to the jury as reported in the bill of exceptions no reference was made to certain evidence as a subject matter of damages. Held, that, as the bill stated that full instructions were given upon all other parts of the case to which no exception was taken, the court, must assume that appropriate instructions were given upon this point.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by falling from the front steps leading into two houses in Boston belonging to the defendant. At the trial in the Superior Court, before Barker, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The nature of the evidence appears in the opinion.</p>

<p>Indictment in four counts, purporting to charge the crime of attempted bribery of one Allen, a milk inspector.</p> <p>At the trial in the Superior Court, before the jury were impanelled, the defendant moved to quash the indictment, on the ground that it did not appear therein that Allen was at the time an executive, legislative, or judicial officer, or that there was then pending before him, or to come before him in his official capacity, any matter which might, could, or would be influenced by the alleged acts of the defendant; that it did not appear that the samples of milk taken by Allen from the defendant were not of good standard quality, as required by law; and that it did not appear that the samples of milk were analyzed, or otherwise satisfactorily tested. Hopkins, J. overruled the motion.</p> <p>The first count alleged that Allen “took certain specimens of milk, then and there being in the custody and possession of one Nathan B. Lapham, hereinafter named, with intent then and there of him, the said Nathan B. Lapham, to sell and exchange the same ; and thereafter.wards, to wit, on the day and year last mentioned, the said Thomas O. Allen, then and there being such inspector of milk as aforesaid, in the further performance and discharge of his duty as such inspector of milk, caused said specimens of milk so as aforesaid taken, being then and there in the custody and possession of the said Nathan B. Lapham, with the intent then and there of him, the said Nathan B. Lapham, to sell and exchange the same as aforesaid, to be analyzed or otherwise satisfactorily tested; . . . that the said analysis and test showed that the said specimens of milk, so as aforesaid taken by the said Thomas O. Allen, being then and there in the custody and possession of the said Nathan B. Lapham, with the intent then and there of him, the said Nathan B. Lapham, to sell and exchange the same as aforesaid, were not of. good standard quality, in violation of the laws as aforesaid then and there in force in relation to the inspection and sale of milk; and thereupon it became the further duty of the said Thomas O. Allen, as such inspector of milk, to record the result of said analysis and test, so as aforesaid made, and preserve the result of said analysis and test as evidence, and to institute a complaint for such violation as aforesaid of the provisions of the laws as aforesaid in respect to the inspection and sale of milk then and there in force in said Commonwealth; and that the defendant unlawfully, wickedly, and corruptly devising, contriving, and intending to tempt, seduce, bribe, and corrupt the said Thomas O. Allen, then and there being an inspector of milk as aforesaid in, of, and for said city of Lowell, duly appointed and qualified as such, and as such engaged then and there in inquiring into the quality and kinds of milk sold and exchanged, and the manner and methods of the sale and exchange, of milk then and there being made in said city of Lowell, to prostitute and abuse his, the said Thomas O. Allen’s trust, and to violate his, the said Thomas O. Allen’s duty, as such inspector of milk as aforesaid, towards the good people of this Commonwealth in the aforesaid matters and in other matters which might and would properly come before him, the said Thomas O. Allen, as such inspector of milk as aforesaid, he, the said Nathan B. Lapham, on said thirty-first day of January, in the year of our Lord one thousand eight hundred and ninety-one, at Lowell aforesaid, in the county of Middlesex aforesaid, did wickedly, wilfully, unlawfully, and corruptly offer and give to the said Thomas O. Allen, then and there being an inspector of milk as aforesaid, a large sum of money, to wit, the sum of two hundred and fifty dollars, with intent thereby then and there wickedly, wilfully, unlawfully, and corruptly to influence the act, opinion, decision, and judgment of him the said Thomas O. Allen, as such inspector of milk, in the discharge and performance of his duties as such inspector of milk, in favor of the said Nathan B. Lapham.”</p> <p>The government offered evidence tending to show that Allen was duly appointed milk inspector for the city of Lowell; that the defendant was a dealer in milk in Lowell; that on January 28, 1890, Allen took from the defendant’s milk wagon two samples of milk; that Allen tested said samples with the lactometer, and they stood at 12.20 and 12.60, respectively, the standard being 13.00; that on January 31, 1890, Allen met the defendant on the street, near the office of the board of health,, with whom Allen had his office, and the defendant asked him how his milk stood; that Allen referred to a memorandum which he had with him, and told the defendant what the result of the test was; that Allen also said to the defendant, “ You won’t be prosecuted, the milk was not low enough to justify an analysis or a prosecution ”; and that the defendant then said to Allen, “I want to see you,” and Allen replied, “Come up into the office.” They ascended the stairs toward the office together, and Allen said, “ I have n’t any key to the office as yet, and we may not get in, as it is about time for them to close it.” Upon reaching the office, Allen partly opened the door, and the defendant then said to him, “I won’t go in,” and handed him a package. Allen took it, and said, “ What is this ? ” to which the defendant replied, It is for you,” and immediately left, without saying anything further. The package was a large closed envelope. Allen took it into the office, and exhibited it at once to certain members of the board of health who were present, and opened it. It contained two hundred and fifty dollars in bank-bills, and a sheet of paper on which was written a list of eleven names of milk dealers in Lowell, among them that of the defendant.</p> <p>It further appeared, that pure milk is frequently below the standard required by law; that Allen had never known, before or since said test, of the defendant’s selling or having for sale any milk which was adulterated or below the standard required by law; and that the defendant had never made to Allen any request, offer, or promise in relation to his official duties as milk inspector, except as herein stated.</p> <p>The defendant requested the judge to instruct the jury that there was no evidence sufficient to support the first count.» The judge declined to give the instruction.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Complaint—Neglect to support Wife — Evidence — Ruling.</p> <p>On a complaint under the St. of 1885, c. 176, charging the defendant with unreasonably neglecting to provide for the support of his wife, the defendant set up that his neglect was not unreasonable in view of her conduct, and charged her with breaches of her marriage duty, and with having declared that she would not live with him. Held, that the record of a decree of the Probate Court upon a petition by the wife for separate maintenance, declaring that the wife was living apart from the defendant for justifiable cause, and ordering him to pay her sixteen dollars a month; and the record of a libel by the husband for divorce on the grounds of drunkenness and cruelty, and a decree dismissing the same after hearing, were both admissible in rebuttal.</p> <p>If it ever be true that an offence short of a cause for divorce will justify a husband as against the Commonwealth in neglecting to support his wife, whether in a particular case cruelty or intoxication falling short of that will be enough, must depend on the circumstances, and the question is for the jury.</p>

<p>Intoxicating Liquors — Plea in Bar—Former Acquittal—Evidence.</p> <p>In the case of a complaint in a district court charging the defendant with keeping a common nuisance, a tenement used for the selling and keeping for sale of intoxicating liquors, the record stated that the defendant was discharged because it did not appear that there was probable cause to believe him guilty. Held, that this did not show an acquittal which would bar conviction on an indictment in the Superior Court.</p> <p>While, in an indictment for keeping a common nuisance, a tenement used for the selling and keeping for sale of intoxicating liquors, the defendant is not bound by what was said by a stranger on the premises, yet a remark, made apparently in his hearing, in reference to the approach of the officers, and his conduct in immediately afterwards “ grabbing ” a bottle of whiskey and carrying it from the bar-room and breaking it, may well be considered in connection with other circumstances tending to show his guilt.</p>

Bill in equity, filed on April 7, 1890, by Henry C. Thacher and Thomas C. Thacher, copartners, judgment creditors under the Pub.

<p>Restriction in Deed — Acquiescence— Changed Conditions — Refusal to enjoin — Damages.</p> <p>A tract of land was divided into lots which were sold subject to restrictions in the deed, which restrictions were designed to make thedocality a suitable one for residences. Owing to the general growth of the city and the use of the neighborhood for business, the purpose of the restrictions could no longer be accomplished. Held, on a bill in equity brought by the owner of one of the lots praying that the owner of two of them be enjoined from violating the restrictions relating to the erection of out-buildings, that it would be oppressive and inequitable to give effect to the restrictions; and, since the changed condition of the locality had resulted from other causes than their breach, to enforce them in this instance could have no other effect than to harass and injure the defendant, without effecting the purpose for which the restrictions were originally made.</p> <p>A bill in equity was brought to enforce the restrictions in a deed, but, on account of changed circumstances, the court refused to grant an injunction. It appeared by the master’s report that the plaintiffs were entitled to some damages. Held, that, as tile plaintiffs had no remedy at law against the defendants, the bill should be retained for the purpose of assessing the plaintiffs’ damages.</p>

<p>Employers’ Liability Act — Loss of Life — Due Care.</p> <p>If all the circumstances attending an accident are in evidence, the mere absence of evidence of fault on the part of the person injured may justify an inference of due care; but where there is an entire absence of evidence as to what the person killed was doing at the time of the accident, it is not enough to show that one conjecture is more probable than another in order that his administrator and next of kin may recover. There must be some evidence to show that he was in the exercise of due care.</p>

<p>Tort. Trial in the Superior Court, before Maynard, J. who reported the case for the determination of this court, in substance as follows.</p> <p>On February 1,1883, the plaintiff executed and delivered to the defendant corporation the following agreement.</p> <p>“ Old Colony Railroad Company, Boston, Feb. 1, 1883. Whereas under the rules of the Old C°l°ny Railroad Company passengers are not allowed to ride in the baggage car of any trains, but the undersigned, holder of a season ticket, being engaged in the express business, is desirous of riding in such car for the more convenient despatch of his business as an ex-pressman, it is understood and agreed that, in consideration of said company allowing him to ride in baggage cars on its trains, the undersigned will assume all risk of accidents and injuries resulting therefrom, and will hold said company free and discharged from all claims and demands in any way growing out of any injuries received by him while so riding. Stephen D. Hosmer.”</p> <p>The plaintiff then purchased a season ticket similar to that issued to all persons who desired to purchase them, entitling him to the rights of a passenger on the defendant’s road and good for three months, and thereafter from time to time purchased similar tickets, and was allowed to ride in the baggage cars of the passenger trains on the defendant’s road, for the more convenient despatch of his business as an expressman, until August 19, 1890, when he was riding in a baggage car conducting his business as an expressman, having a season ticket, and was injured while himself in the exercise of due care, and thereby damaged to the extent of two thousand dollars, by an accident, which arose as follows.</p> <p>An obstacle had been carelessly left on the track by employees of the defendant while they were engaged in repairing it. The train in which the plaintiff was riding was thereby derailed. It consisted, in the following order,of an engine, which was thrown on the roadside; the baggage car, which was thrown on its side, and the framework of the body of which was unbroken ; a Pullman car thrown off the track in line with it; a smoker thrown diagonally across the track; passenger car No. 263, which was a total wreck; car No. 262, the front end of which was off the track; and four other cars which remained on the rails. There were three hundred and ninety-one passengers, of whom twenty-three died from the accident, and some sixty or seventy were more or less seriously injured. The larger portion of injured passengers were on the totally wrecked car, but the remainder were scattered through the various cars including those that remained on the track. The only other persons in the baggage car were the conductor and baggage master of the train, who were not seriously injured.</p> <p>The defendant asked the judge to rule that, on the foregoing evidence, the plaintiff was not entitled to go to the jury. The judge so ruled, and directed a verdict for the defendant. If the plaintiff was entitled to go to the jury, the verdict was to be set aside and judgment entered for the plaintiff in the sum of two thousand dollars; otherwise, the verdict was to stand.</p>

Contract, on a check drawn by the defendant to the order of one F. A. Dearborn, on Saturday, August 20,1887, and postdated to the following Monday, August 22, 1887. Trial in the Superior Court, without a jury, before Thompson, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

<p>Tort for personal injuries occasioned to the plaintiff by the falling of an elevator in a warehouse belonging to the defendant.</p> <p>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 that the plaintiff had been long employed as a porter by one Dallinger, and that on August 19, 1889, he was employed by Dallinger in his warehouse on Broad Street in Boston, which warehouse Dallinger leased of the defendant; that there was an elevator on the premises used for hoisting and lowering merchandise; that the elevator machine was situated in the top story of the leased premises, open to view; that the steam power which ran this elevator was furnished by the defendant, in accordance with a contract in the lease, from a power-house separate from the leased premises; that in this power-house was the engine from which said elevator and several other elevators in adjoining buildings were operated, and that this engine, together with all the machinery which transmitted the power to the various elevoting machines, was under the defendant’s exclusive management and control, and the engineer in charge of this engine was employed by the defendant, and oiled the machinery on the premises leased to Dallinger; that ever since the plaintiff’s employment there had been notices on the elevator signed by the defendant, stating that the elevator was for freight only, and forbidding persons from riding upon it; that the plaintiff had seen and read the notices before the accident occurred; that he understood the notices, but in spite of them was accustomed to ride on the elevator; that on the afternoon of August 19, 1889, the plaintiff went to the fourth floor of the building in company with two other servants of Dallinger, and there they placed on the elevator two cases of goods and a truck, weighing about seven hundred pounds in all; that the sides of the elevator were cased off from the lofts by strips of wood or scantling, between four and five inches apart; that within and on one side of the elevator well— to wit, left hand side as you enter from the front, the rear being against the wall of the building — were the two shipper ropes connecting with three pulleys on the top floor, running clear of the elevator and outside of its line of passage within the well; that the elevator was started down by pulling the right hand one down, and up by pulling the left hand one down, and could also be started either way by either one of the shipper ropes alone by an opposite motion ; that there were goods piled up against the side of the elevator on the fourth floor where the shipper ropes were, and that in order to start the elevator the plaintiff had to step upon it; that on this occasion he did so, and then turned to his left, took hold of the ropes, pulled down the right one, but the rope did not come ; then he pulled again and the rope did not come, but the elevator was moving; that he put both hands on the rope to bring it, and pulled all he could, and the rope did not come as it usually did, but the elevator descended quickly; that he was flustered, tried the other rope, which would have a tendency to take the elevator up; and that he tried to catch hold of the cleats on the side of the elevator, but could not hold on and had to go down with the elevator, which was precipitated into the cellar, and he was seriously injured.</p> <p>The plaintiff testified that there was no other way for him to start the elevator than that which he adopted, because the sides of the elevator well were so piled up with goods that he could not reach the ropes by there putting his hands between the scantlings, but was obliged to enter it from the front; and he further testified, on cross-examination, that the storing of the goods about the side of the well was done either by himself or under the direction of Dallinger; that the defendant, Foster, had nothing to do with it, and that Dallinger occupied the whole building.</p> <p>The jury took a view, saw the elevator raised and lowered by the defendant’s engineer, without going upon the elevator, by standing at the side of the elevator well and pulling the shipper ropes, which were without the line of passage of the elevator. This was done in every floor, except where goods were so piled about the elevator well as to make it impossible to get to the left hand side of the well, where and within which the shipper ropes were situated.</p> <p>The judge directed a verdict for the defendant. If the ruling was wrong, the verdict was to be set aside; otherwise, judgment was to be entered upon the verdict.</p>

<p>Promissory Note — Joint Obligation — Discharge in Insolvency.</p> <p>An insolvent, who has fulfilled all the requirements of the Pub. Sts. c. 157, and has received his discharge, is protected from a contingent obligation to a joint maker of a promissory note made before the insolvency, as well as from his obligation to the holder of the note.</p>

Tort, for personal injuries occasioned to the plaintiff, on February 20, 1890, at about 6.03 p. M., by falling on a concrete walk on the defendants’ premises, leading from the door of their mill to a public street, called River Street, at Readville.

<p>Plea in Abatement—Jurisdiction of Cause and Parties — Exceptions.</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, whether the question be one of law or fact.</p> <p>The Superior Court had jurisdiction of a cause of action and of the parties, but the judge ruled that the writ was brought in the wrong county. Held, that, the question being properly raised by a plea in abatement, the ruling could not be revised by this court.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, an employee of the proprietors of a circus, while riding in a car belonging to the proprietors, drawn by the defendant company over its road under a written agreement.</p> <p>Trial in the Superior Court, before Bishop, J., who directed a verdict for the defendant, and reported the case for the determination of this court. If the ruling was right, judgment was to be entered for the defendant; otherwise, the case was to stand for trial. The facts appear in the opinion.</p>

Tort, for personal injuries occasioned to tlie plaintiff, by the falling upon him of a bank upon the defendant’s premises. At the trial in the Superior Court, before Bishop, J., there was evidence tending to show that the plaintiff, who was a stone mason, worked in the fall of 1889 for one James Smith in laying the foundation walls for a building on the defendant’s premises, which extended from Kingston Street to Edinboro Street in Boston.

<p>Tout, by Alfred H. Howland and George A. Ellis, copartners doing business as Howland and Ellis, for libel.</p> <p>' The declaration alleged that the plaintiffs were civil engineers and contractors, and that the defendant published, circulated, and caused to be published and circulated, a false and malicious libel concerning the plaintiffs, a copy whereof was annexed, . whereby the plaintiffs were greatly damaged in their business as well as in their reputation, and especially had suffered great damage and loss of profits on contracts and employment in their business as civil engineers and contractors for the building and construction and superintendence of the construction of water works.</p> <p>The plaintiffs also filed, in support of their allegation of special damage, a specification of the contracts claimed to have been lost by reason of the alleged libel.</p> <p>The libel complained of was contained in the report of an investigating committee appointed by the inhabitants of the town of Maynard, which was printed in a newspaper published in that town, and which recited that a contract in writing was made on August 14, 1888, by the water commissioners of the town with the plaintiffs, who agreed to build a complete system of water works for the town for a certain sum, to be done on or before December 1, 1888; that on said December 1 but a small portion of the works had been completed, and the plaintiffs had not exerted themselves to complete the same; that the plaintiffs after said December 1 applied to the water commissioners for an extension of time, which was granted upon the condition that the plaintiffs would sign a proper extension in writing, which the commissioners prepared and submitted to them for their approval; that the plaintiffs refused to sign the extension ; that the committee believed that the written extension was just and equitable to both parties, taking into consideration the time of the year, “ and the manner and way Howland and Ellis had been conducting and prosecuting the work, and the additional light and knowledge that they had received since August 14th last concerning the characters and financial standing of Howland and Ellis, especially in regard to Howland ”; that the commissioners, on December 17, notified the plaintiffs in writing to quit work; that the committee found “that the greater part of the work performed before December 1 was not done in accordance with the terms of the contract, and that the water commissioners were justified in withholding their approval and acceptance of the same,” and the particulars in which the work was claimed to be defective were specified in detail; and that the committee found that the specifications in the hands of the commissioners differed from those in the possession of Howland, and, knowing the commissioners’ standing, “we determined to know Howland’s. This was the result. The first man we interviewed on the standing of Howland, who was a man your whole committee had confidence in, told us that Howland would steal, that he caught him at it, and gave instructions to all his help to watch him whenever he came into his place of business; that his ability as civil engineer was not to be questioned, but that he was dishonest, a smooth, plausible, oily talker, and that his note for a thousand dollars was not worth ten cents. We followed this up among other well known business concerns, and were unable to find anything to his advantage either as a square business man, or as to his financial standing. Mr. McClellan sent him to Montgomery, Ala., where he was working for him under a salary, to obtain the franchise to put in water works in that place. Howland took the franchise out in his own name, and returned to Boston, and tried to sell it to McClellan, his employer. McClellan told him that he guessed he would dispense with his services. The Chapman Valve Company, in whose employ he was, instructed him to get up a book illustrating and describing their works. He did so; got the book copyrighted in his own name, and tried to make them pay him before he would allow them to dispose of the books. He went to the Blake Manufacturing Company, and tried to induce them to construct the pumps called for in the specifications in the possession of the water commissioners of poorer and cheaper materials, and cut down the cost two thousand dollars, saying that the water commissioners will never know the difference, and they will answer all purposes. The Blake Manufacturing Company informed him they did not do that kind of business.” The report went on to recite that the committee decided that the specifications in the hands of the commissioners were the right ones; that, after the committee had made this investigation in regard to Howland, he came before the committee and made certain favorable statements regarding himself and relating to the work, “ but could give us no light on why he permitted the work to be performed in this unsatisfactory manner, — we had investigated him before we met him ”; that, under the contract, the plaintiffs were to satisfy the commissioners of the discharge of all liens before they were entitled to pay; and that the plaintiffs had received from the town a certain sum, and transferred to one Rice all their rights and claims against the town to a certain amount, “and it looks to us as if Howland and Ellis did not intend to pay for the material now in town, or for the labor performed.” The report then reflected severely upon one of the water commissioners named Nyman, and stated that “ we believe he has aided and abetted Howland and Ellis, and worked against and wilfully and intentionally neglected the-interests of the town; that he is ready and willing to aid them in their scheme to swindle the town ”; and closed as follows: “We recommend that the town have nothing more to do with Howland and Ellis, except to settle up with them, if they can in any way that is for the interest of the town, and if not, oppose them in every way possible; for we believe that Howland and Ellis have no claim against the town under their contract which entitles them to recover anything.”</p> <p>The answer contained a general denial, set up generally the truth of the alleged libellous statements, and averred that the publication was a privileged communication.</p> <p>Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance, as follows.</p> <p>There was evidence tending to show the following facts. The plaintiffs are civil engineers and contractors for water works, with an office in Boston, and a large business in twelve or thirteen of the United States. Some time in August, 1888, the plaintiffs contracted with the town of Maynard to construct in and for said town a system of water works; work was begun thereon in August, 1888, before the signing of the contract, and a contract was signed some time in September, 1888. Three citizens of the town of Maynard, namely, Thomas Hillis, Thomas Naylor, and Frank W. Nyman, were elected water commissioner's at a regularly called meeting of said town, in June, 1888, and were intrusted with the superintendence of the construction of the water works, and with the power to make and sign contracts for the work. The work was not completed on.December 1, 1888, the plaintiffs contending that the time had been extended; and shortly thereafter the plaintiffs were forbidden by the water commissioners to proceed further with the work. Afterwards various disputes, controversies, and differences arose between the plaintiffs and the water commissioners respecting the contract and its execution, and on January 24, 1889, the town of Maynard, at a meeting regularly and duly called for that purpose, appointed a committee consisting of A. G. Haynes, L. Maynard, George Flood, Augustus Newton, H. H. McGrail, Joseph W. Reed, and A. D. Holt, and empowered them to investigate the trouble between the water commissioners and the plaintiffs, and instructed the committee to report concerning the same to the town. The committee proceeded to investigate said matters, and made a written report of their investigation to the town at a special town meeting on March 8, 1889. The report was adopted by the town at its special meeting, and ordered to be printed and circulated, and the full text of the report was printed in the Maynard Enterprise, a newspaper published in said Maynard, March 9, 1889. The report in the Maynard Enterprise contained and constituted the alleged libel on the plaintiffs. The defendant is a corporation engaged in the business of manufacturing pumps for steam and water purposes and pumping. machinery, and has stores and offices for the transacting of its business in Boston, New York, and Philadelphia, and has factories in Warren and Cambridge, in this Commonwealth; E. C. Turner is treasurer and general manager of said corporation, and George Foran and Wilbur D. Fiske are in the employ of said corporation as salesmen, with power to negotiate contracts of sale and manufacture.</p> <p>It was admitted by the defendant that E. C. Turner was the treasurer and one of the directors, having general financial charge of the business of the defendant corporation in 1889, and up to and including the date of the trial.</p> <p>John F. Wood, called by the plaintiffs, testified that he was the publisher of the Maynard Enterprise in 1889, and identified the paper containing the alleged libel as having been printed in his establishment in Maynard, on March 9,1889; that he should judge that he printed from three hundred to five hundred copies; and that he thought he also printed it in another form.</p> <p>Thomas Hillis, called by the plaintiff, testified that in 1888 and 1889 he was chairman of the board of water commissioners of the town of Maynard ; that prior to August 10, 1888, the witness had received bids for machinery and boilers from the defendant through Foran, and on said August 10 the witness notified Foran that the water commissioners had accepted the defendant’s specifications ; that shortly afterwards a contract for the water works at Maynard was signed by the plaintiffs and the water commissioners; that some time after May, 1889, the town of Maynard placed its order with the defendant for the pumping machinery; and that the defendant had since put in the pumping machinery in accordance, substantially, with specifications contained in the contract between the town and the plaintiffs, with only a slight variation to reduce the price.</p> <p>Upon cross-examination, the witness testified at great length regarding various statements in the alleged libel, to wit, .to the making of changes in the contract with the town after the same was signed and delivered, to imperfections and defects in the work that was performed under said contract upon the .water works, to conversations in regard to said defects with the plaintiffs and their agents, and in reference to the payment of money under said contract, and to conversations with the plaintiffs in reference to an extension of said contract. The plaintiffs objected to this evidence, upon the ground that, under the answer, the defendant should not be permitted to introduce any evidence of the truth of the matters contained in the alleged libel, because it had not specifically set up the truth of any fact except in the general answer. The judge admitted the evidence, and the plaintiffs excepted.</p> <p>Joseph W. Reed, called as a witness for the plaintiffs, testified that he was one of the committee appointed by the town of Maynard to investigate “ the Howland and Ellis matter ”; that he'went to the office of the defendant with other members of the committee, and there saw Foran and Turner, who were told by them that they were a committee from the town of Maynard; that they gave the committee information, the substance of which was afterwards introduced into the report; that the report as it appeared in the Maynard Enterprise was the same as the report to the town; that on March 11 the witness met Foran, who asked the witness to send him some of the Maynard Enterprise extras; that the witness purchased twenty-three of these papers in Maynard, and sent them to Foran at the defendant’s office; and that Foran subsequently paid him for these papers.</p> <p>George Flood, called as a witness for the plaintiffs, testified that he was a member of the committee of investigation; that he went to the defendant’s office with the other members of the committee; and he corroborated the evidence of Reed as to the conversation with Foran and Turner in regard to the plaintiffs, and the incorporation of its substance into the report.</p> <p>Albert F. Hall, called as a witness by the plaintiffs, testified that he was an engineer and draughtsman in the employ of the defendant; that some time after March 9, 1889, Turner came into the office provided for the witness by the defendant, and gave him a copy of the Maynard Enterprise extra, containing the report of the investigating committee; that the witness read the paper, and showed it to one Kohler, his assistant, who read it; that the witness handed it to one Howard, his pattern maker, and he read it, and returned it to the witness, after which the witness returned the paper to Turner; and that the witness had asked Turner for the paper, having heard before of its publication.</p> <p>Wilbur D. Fiske, called as a witness for the plaintiffs, testified that he was a salesman in the employ of the defendant; that a portion of his duties consisted in making contracts for the supply of pumping machinery to water companies or towns, in connection with it; that he made a proposal on behalf of the defendant to the plaintiffs ; that some time during the spring of 1889 he made a contract through the water commissioners with the town of Maynard for pumping machinery; that he had seen one of the Maynard Enterprise extras containing the report in the office of the defendant, the first one he saw being in the hands of Foran, shortly after it was published; that after that he saw three or four more of them, and knew that Foran had some of these papers; and that Foran gave him one, which he laid on his desk, but did not show it to anybody.</p> <p>Myron L. Henry, called as a witness for the plaintiffs, testified that he was an accountant in the employ of the defendant; that he had seen some of the Maynard Enterprise extras in the rear office of the defendant prior to October, 1889; that the package containing the papers had been given him by Foran, but how long previously to October he could not state; that he had heard in the office of the defendant that there was such a paper previously to the time of his receiving the package; that there were twenty copies in this package; that he took one out, read it, and put it back, and placed the package in the safe of the defendant by direction of Foran.</p> <p>John G. Berry, called as a witness for the plaintiffs, testified that he was a civil engineer in the employ of the plaintiffs; that on March 15,1889, he went to the office of the defendant, and there saw Foran, who gave him a copy of the Maynard Enterprise extra, saying, “ Read it at your leisure, and show it to your water committee ”; that the witness had told Foran that he had friends in Marion, Ohio, who were interested in the water works which were to be put in there by the plaintiffs; that thereupon Foran gave a start, and said, “ Hold on a minute, I have got something to show you ”; and that Foran then went to his desk, got out the paper, and handed it to him.</p> <p>On cross-examination, the witness testified that he went there with the purpose and intention of getting one of those papers if he could; and that he did not tell Foran that he was in the plaintiffs’ employ.</p> <p>James Adams, called as a witness for the plaintiffs, testified that he was cashier of the Blackstone National Bank in Boston ; that Turner was a shareholder in the bank, and the defendant kept a large deposit there; and that George F. Blake, the president of the defendant company, was one of the directors of the bank. The witness further testified as follows: “ Some time after March 11,1889,1 received a paper from Mr. Turner, which was folded in the ordinary way. I never examined the paper and did not read it. I understood it contained a report of the town committee in relation to a transaction with which Howland and Ellis had been connected. I folded the paper, and mailed it to our correspondent at Peoria, Illinois. It was directed to the First National Bank of Peoria, Illinois. Mr. W. E. Stone was the cashier of that bank, and, from information recently received, I suppose a person by the name of Bergen was connected with that bank. I do not recall that there was any correspondence between me and any one in connection with that paper before I sent it. I am not aware that I informed Mr. Turner of the use I intended to make of it. I had sent an inquiry to him that I would like to know. This inquiry was sent by Mr. Moore, one of the clerks in the employ of the Blake Manufacturing Company, who came to our bank, and who had been accustomed to do the banking business. This paper was handed to me by Mr. Moore, to the best of my knowledge. When he handed it to me he said substantially, ‘ Here is the paper, here is the report of the committee,’ or something similar to that. Before I received the information that I would have a report sent to me, I am under the impression that I knew there was a report printed, but cannot tell from whom I learned it. The message I sent to Mr. Turner" was, that, if he had any information in regard to the standing of Howland and Ellis, I should be happy to hear from him at any time.”</p> <p>On cross-examination, the witness testified: “ My impression is that there was a request for this information, and it came by letter from the First National Bank of Peoria. I have searched for that letter and have been unable to find it. . . . It was a brief letter, and there was nothing in it to fix in my mind the date of its receipt. The First National Bank of Peoria has an account with the Blacks tone National Bank of Boston, and it is the only bank in Peoria that has any business dealings and affairs with us. It has been our correspondent for some half-dozen years. When I received the inquiry I considered of whom I would make inquiries regarding it, and do not remember making inquiries from any other person than the Blake Company.”</p> <p>Charles B. Moore, clerk in the employ of the defendant company, testified as follows: “ I have heard there was such a report as that contained in the Maynard Enterprise extra, and I remember taking a paper from Mr. Turner down to the Blackstone Bank. Mr. Adams, the cashier of the bank, asked me one day what our people knew in regal’d to Howland and Ellis. These were the words, to the best of my remembrance. I am sure there was not anything said as to their financial standing. I told Mr. Adams we knew nothing about them. I said that the Blake Company knew nothing about them. He asked me, ‘If you should hear anything, will you kindly let me know ? ’ That was all he said that I remember of. I said I would, and went back to the office. I spoke to Mr. Turner about it, I could not say whether it was the next morning or the day after it. I told him Mr. Adams had inquired in regard to Howland and Ellis. He said he could say nothing about them. Some days after this, when I was in Mr. Turner’s office waiting to get the deposit from him to take to the bank, he handed me a paper and asked me to give it to Mr. Adams. I put the paper in my pocket and gave it to Mr. Adams when I got to the bank. The paper was folded, and I could not tell exactly what it was. I did not unfold it, or look at the heading of it, or have any idea what it was, or form any idea about it. I said to Mr. Adams, ‘ Here is a paper which Mr. Turner wished me to give you.’ Up to that time I had never heard of a report, or that any such thing had been printed. ... I should say four or five days elapsed between the time Mr. Adams spoke to me and the time I got the paper and carried it down to him.”</p> <p>John B. Dean, called as a witness for the plaintiffs, testified that he was a newsdealer in the town of Maynard; that he had sold about five hundred copies of the paper containing the report; that he had had several applications for the papers after they were all sold; that all of them were sold in one day, except a few which were sold on the following Monday; and that he had the entire distribution of them.</p> <p>James C. Dolan, called as a witness for the plaintiffs, testified that he resided in Peoria, Illinois, and was one of the aldermen of that city during the years 1888 and 1889, and was a member of a special committee to take charge of the water works business; that he first met the plaintiff Howland in the latter part of 1888 or the beginning of 1889 ; that at that time Howland had gone to Peoria with a proposition to purchase the water works system ; that several meetings were held by this committee, but no contract had been awarded up to April 2, 1889, about which time the witness saw a paper containing the alleged libel; that Alderman Bergen, who was a member of the committee and who was also teller of the First National Bank of Peoria, showed it to him; that he also saw it again, and read part of it in the presence -of Bergen and a third person; and that he never saw it again, either in the council chamber, or in the rooms where the committee were holding meetings, or anywhere else.</p> <p>On cross-examination, the witness testified: “ I won’t say it did n’t have an effect on my mind, it most certainly would have an effect; it might be the determining question; it would depend upon what I knew of the people. It would not affect me unfavorably towards Howland, because I was favorably impressed with him, and am to-day.”</p> <p>John Warner, called as a witness for the defendant, testified : “ I reside in Peoria, and was mayor of that city in 1888 and 1889, and was a member of the special committee on water works. About the middle of March, I remember seeing a paper similar to the Maynard Enterprise extra. It was handed to me in the mayor’s office, by Alderman Bergen. I gazed over it slightly. . . . When it was shown to me by Mr. Bergen no one was present but he and myself. I do not know how he came to show it to me.”</p> <p>Marshall M. Tidd, called as a witness for the defendant, testified:</p> <p>“lam a civil engineer, carrying on business in Boston; have been an engineer for something over forty years, and my practice has extended from Nova Scotia to California.</p> <p>“ Q. Did you ever give any instructions, Mr. Tidd, to your help or workmen, or subordinates there, to watch Howland whenever he came into your place ? A. I did; yes, sir.</p> <p>“ Q. Has he ever stolen anything from you that you caught him at ? A. Not that I know of.</p> <p>“ Q. Did he ever steal blue prints or plans from you that you caught him at ? A. Not that I know of.</p> <p>“ Q. Have you given instructions to all your help, Mr. Tidd, to watch Mr. Howland when he came into your office ? A. My present help, I suppose you refer to.</p> <p>“ Q. To all of your help. A. I am not sure that I could say all, because some have been very temporarily in my employ.</p> <p>“ Q. Well, at and about March and February, 1889, had you given such instructions to all your help ? A. I did, sir.”</p> <p>Wilbur D. Fiske, recalled, testified: “ In September or October, 1888,1 went to see Mr. Howland, at his office in Boston, in reference to the pumps for the Maynard works. Mr. Howland had sent down for somebody to come to his office, and in response to the message I went. My recollection of the conversation with him is, that he had made some changes in the piping, had left out some recording gouges, and some few things like that, and wanted a specification of machínery leaving out these gouges and double piping, and he wanted the price reduced. He said that Mr. E'oran had given a promise or made a promise of a reduction in the price. I took the matter under advisement, figured up the job, and made a reduction in the price. Mr. Foran came into the store the next day, and together we went up and saw Mr. Howland, because Mr. Foran knew more about it than I did. Our conversation was on the reduction of the price. Mr. Howland wanted to reduce the price of the machinery about two thousand dollars. We said we would not reduce the price. Mr. Howland said we had expensive boilers and an expensive boiler maker; that in some other contracts he had a cheaper boiler maker, and engaged an engineer to watch the process of constructing the boilers, and therefore got a good job, and saved several hundred dollars on a pair of boilers, or on boilers, and that we could do the same. We answered, we would not do it. We said we were not in that kind of business. Mr. Howland said he could furnish that machinery under our specifications by other builders, and that he was not obliged to have the machinery built by the George F. Blake Manufacturing Company. He spoke about the water commissioners, and said something in regard to making the pumps cheaper, and that it would be all right providing the water commissioners accepted them. I don’t recollect just how he put it, but that was the substance of it as near as I can recollect, that the water commissioners would not’ know the difference. I think he said we had guaranteed that machinery to the commissioners.”</p> <p>On cross-examination, the witness testified as follows: “ When I met Howland and Ellis the question in discussion was regarding price. I don’t know as the words c poorer materials ’ were used. The substance of it was to cheapen the whole thing. One way indicated by Howland was to get a cheaper boiler maker, — to pay less price to our workmen. ... I think Mr. Howland made us an offer of $10,500 ; our proposition was $11,191. We went back to Mr. Turner, and reported the offer to him.”</p> <p>Edward C. Turner, called as a witness for the defendant, testified : “ I am treasurer of the George F. Blake Manufacturing Company. . . . The matter of the water works at Maynard was first called to my attention in the latter part of July or the first of August, 1888. Mr. Foran, one of the force, went up there then, -and substantially had. charge of the business there. The first time I saw this newspaper publication was on the forenoon of Saturday, March 9, 1889; as I came into the office of the Blake Company Mr. Foran had it in his hand. Afterwards Foran came to my desk and read it to me; I was indorsing checks at the time; on the following Monday he handed me another of those papers; I sent that to James Adams, cashier of the Blackstone National Bank, in response to his request for information; I think I sent it that Monday, or a day or two later, I don’t know positively; I sent Mr. Moore, our messenger, to the bank ; I handed it to Moore in my office, and he put it in his pocket; I never afterwards saw that paper. Mr. Foran gave me another of those papers, I should think on Thursday or, Friday of that week ; I put this one in my pocket and carried it to my home; I carried it back again to the city, and stopped at the factory; I had there some conversation with Mr. Hall on the subject of Maynard. He said he would like to see some of those papers, and I gave, him that one, or loaned it to him to read; afterwards he gave it back to me, and I gave it to Foran, and told him to have it locked up carefully; I don’t know what Foran did with it. Since that time I have never seen any of these papers about my place, on the desks, or exposed in any way. ... I remember a committee of men coming to my place some time in February or January, 1889, I should think; I think there were three or four men; I don’t remember their names, except that of Mr. Reed, the chairman. When I first saw them they were sitting down around Foran’s desk. I was introduced to them by Foran, and they said they were an investigating committee. I was engaged in conversation with them five or ten minutes, I think ; I said nothing to them with reference to this water works business at Maynard; I told them that the correspondence was at their disposal, or in sight if they wished to see it; that they were at liberty to look at it if they wished ; the correspondence, I think, between the town of Maynard and, I suppose, Howland. I never heard or was told that Howland and Ellis were not favorable to putting in our pumps. When I talked with the investigating committee I did not tell them that Mr. Howland had been trying to bribe us to put in imperfect work or cheaper material. I did not tell them anything of the kind, nor that by reason of his offer to us he was attempting to swindle the town of Maynard. Nothing of that sort was said or intimated. I did not say anything or hear anything said to that committee to the effect that I or the company was ready to back up what we knew about Howland and Ellis in court. I never remember anything of that sort being said.”</p> <p>George F. Foran, called as a witness by the defendant, testified as follows:</p> <p>“ I am a salesman in the employ of the George F. Blake Manufacturing Company. I first saw this paper on the morning of March 9, 1889. I was standing by my desk, and Mr. Naylor came in and handed it to me. I commenced to read it, and before I had finished Mr. Fiske came to the door. I commenced to read it over again and read it entirely through. That same morning I showed the paper to Mr. Turner, and then gave it back to Mr. Naylor. I never saw that copy afterwards, and it was never, to my knowledge, in the place or about the premises of the George F. Blake Manufacturing Company again. At noon on that same day I saw another copy of the paper in the hands of Joseph Reed, chairman of the investigating committee. I asked Mr. Reed if he would let me have that paper ; he said he would not. Then I asked him if he would get me some of them, and he said he would. A little after two o’clock on that same day Mr. Reed came to the store and gave me that paper. I can’t tell what was done with that special paper. On Monday morning, March 11, I had a package of papers at the office. I opened the package and there were twenty-three papers in it. I have never had any other papers than the twenty-three that came in that package and the one that Mr. Reed gave me. I put those twenty-three papers in my desk. Afterwards I took one out and gave it to Mr. Turner. I never afterwards saw that paper. I took another one out and gave it to Mr. Fiske. I don’t know what he did with it. I never saw it afterwards. Two or three days later I took another and gave it to Mr. Turner. I don’t know what he did with it, and have no knowledge of what became of it.</p> <p>“ In the same week, either Friday or Saturday, I took another of those papers and gave it to Mr. Berry, one of Mr. Howland’s employees. Mr. Berry and Chief Engineer Adamson, of the United States re'ceiving ship Wabash, of the Charlestown Navy Yard, were present in the office at that time. I had never met Mr. Berry previous to that time. Mr. Adamson came in first, and I was engaged in conversation with him when Mr. Berry entered. Mr. Adamson introduced Mr. Berry to me, and told me he had been on a trip with him. . . . Mr. Berry said he had been on either the cruiser Boston or Chicago, and I turned to a photograph in a book and showed him some machinery on .the boats, and other things that would be interesting to him, and explained the different styles of machinery to him. When I struck some water works pumping engines, he told me he had recently had some letters from friends at home, and that there was a possibility they might put in a system of water works some time during the summer or fall. I asked him where he lived. He said he lived at Marion, Ohio. ... We then returned to my desk, and Mr. Berry brought up the subject of water works again, and we went into it quite fully. ... We talked for some time, and Mr. Berry asked me for my card, saying he would like to know whom he had been talking with. Then he started towards the door, and as we got about to the door, Mr. Berry said, ‘ I think preliminary surveys have been made by a concern named Howland and Ellis.’ I was a little surprised. I said, ‘ Howland ? ’ He said ‘ Yes, do you know anything about them ? ’ I hesitated a moment, and said, ‘ Is it of special interest to you ? ’ He said, ‘ Yes.’ I then went to my desk without saying anything further, took out a copy of the Maynard Enterprise extra, which was folded, and handed it to him, saying, 1 This paper contains the report of a committee of the town of Maynard, where the firm of Howland and Ellis had a contract.’ He thanked me for it, and put it in his pocket without opening it. We had no further conversation, and they went out. I did not see Mr. Berry after that time until May 2, in Boston. He told me he was working in Boston for Howland and Ellis. . . . On March 19, 1889, I received some instructions from Mr. Turner about these papers, and I went to my desk, took them out, counted them, rolled them up in a brown-paper wrapper, and wrote on it ‘ Copies of Maynard Enterprise.’ 1 gave them to Mr. Henry, and he locked them up in the safe.</p> <p>“ On the same day, a little later, I went there, got the package from Mr. He.nry, took out two copies, and gave them to Mr. Turner. They were for the counsel, I believe. That left eighteen in there. On the following day, or the day after, Mr. Turner gave me two papers. I went and obtained the package from Mr. Henry, and put the two papers in, making the number twenty. I have seen the package once or twice very recently. I remember the time when the investigating committee of the town of Maynard came to our place. ... I had a conversation with them, and after I got through talking with them I thought they would like to see Mr. Turner, and I asked him to come out and speak to them a minute. I brought him out, and introduced them to him. This was the first time I had met that committee, and the only time. Previous to this I had had some conversation with Mr. Howland about this machinery. On August 8 I put in a bid to .the water commissioners, and on August 13 Mr, Howland sent a messenger down for me to come to his office, and in response to this I went to his office. He asked me why I had n’t handed the bid to him in answer to his specifications. I told him that there were lots of things in there we didn’t believe in ; that parts of the pumps he called for we didn’t build, and did n’t consider necessary; that the water commissioners had advertised for bids, so I had bid to the water commissioners direct. Mr. Howland told me that, as he was engineer for those works, everything that went in would be according to his instructions. I left him at that time, and went down to the office, and came back with a special proposition. After that, the first meeting that I remember seeing him specially was on October 2.”</p> <p>The witness then corroborated the testimony of Wilbur D. Fiske, in substance, as to their interview with Howland on October 2.</p> <p>Frank W. Nyman, called in rebuttal as a witness for the plaintiffs, testified that he was a water commissioner of the town of Maynard, and was present when the contract referred to in the libel was signed. He was permitted to testify at great length to the circumstances of signing the contract, and to the work performed under the contract by the plaintiffs. The witness was asked the following question : “ Before the contract between the town of Maynard and Howland and Ellis was made, did you make any inquiries so as to ascertain the business reputation of Howland and Ellis ? ” This question was objected to by the defendant.. The judge excluded it; and the plaintiffs excepted.</p> <p>The plaintiffs’ counsel then said, “I propose to offer evidence of the business reputation of the plaintiffs and of their individual standing and reputation.” This evidence was objected to by the defendant. The judge excluded it; and the plaintiffs excepted.</p> <p>The plaintiffs requested the judge to instruct the jury, among other things, as follows:</p> <p>“ 1. If the officers having charge of the business affairs of the defendant corporation, or its agents, acting on behalf of the corporation in the course of their employment, participated in the preparation of the libel by furnishing any part of the libellous matter, and after it was printed circulated it, such acts would make the corporation liable equally with those who wrote it and published or printed it. The corporation would be liable as one of the originators of the libel, or for any damages which might result from its public sale or private circulation.</p> <p>“ 2. If the treasurer of the defendant corporation, intrusted with the general superintendence of its business affairs, furnished or permitted any person employed by the corporation to furnish, or assented to the employee furnishing, any part of a libel of the plaintiffs, and after it was printed circulated it, gave it away, lent it, or handed it to any person or persons to be read, then the defendant corporation is liable as the originator, composer, and publisher of all that is contained in the libel. It would be answerable in damages for any injury which the plaintiffs have sustained or reasonably may sustain by reason of its circulation by its agents, officers, servants, employees, or by others.</p> <p>“ 3. If any agent, employee, or servant of the defendant corporation in the general course of his employment furnished any part of the libel, and after it was printed circulated it by giving it away, or by handing it to others to be read, the defendant corporation would be liable as fully as if it had composed and printed the whole paper. It would be liable in damages to the plaintiffs for all injuries to the plaintiffs in their business or reputation by the general circulation or sale of the libel.</p> <p>“ 4. If the jury find that the defendant corporation, by its servants or agents, in the usual course of their employment, were in any wise concerned or aided in the production or publication of the writing, the corporation is liable.</p> <p>“ 5. If the jury find that the defendant corporation, by its servants or agents, in the usual course of their employment, and in the interest of the defendant corporation, provided or furnished any part of the materials and statements contained in the alleged libel which are untrue, the corporation is liable.</p> <p>“ 6. If the jury find that the treasurer of the corporation by his acts ratified the acts of the other servants and agents of the corporation in the furnishing of the materials for the publication of the libel, such ratification is the ratification of the corporation, and the corporation is liable, and the circulation of the libel after it was printed would be in law evidence of such ratification.”</p> <p>The judge declined to give the instructions requested, but, among other things, instructed the jury as follows:</p> <p>“ What is meant by publication ? The word in its legal sense is not identical in signification with the meaning of that word as popularly and commonly used. A publication in a legal sense is simply the communication of the defamatory matter to some third person. . . .</p> <p>“ Now in this case there is evidence that a large number of copies of a newspaper, printed and published in the town of Maynard, contained the report of the investigating committee, the matter upon which the plaintiffs rely in support of this action, and there is no dispute that a certain number of copies of this paper came into the possession of agents and servants of the defendant corporation, and were for a time in the place of business of the defendant corporation ; that of itself would not be a publication on the part of the servants or agents of the defendant corporation, or on the part of the corporation itself. . . .</p> <p>“ A corporation is liable in damages for the publication of a libel, as it is for its other torts; but to establish its liability, the publication must be shown to have been made by its authority, or to have been ratified by it, or to have been made by one of its servants or agents in the course of the business in which he was employed.</p> <p>“ To prove publication, some one of the three things to which I have called your attention must be proved.</p> <p>“ Now, upon all the evidence in the case, I think it my duty to instruct you, as matter of law, — and I do give you that instruction, — that there is no evidence of any publication made by the authority of the defendant corporation, or that any publication of the alleged libel was ratified by it. When I say ‘ made by the authority of a corporationI may illustrate my meaning. Suppose the directors of the corporation, having charge of its affairs, at a meeting passed a vote authorizing and directing the publication of this article, and the circulation of it; that would be a publication by the authority of the corporation, — or if there had been a publication made, the directors, acting in behalf of the corporation, and practically constituting for the time being the corporation, might ratify the publication ; but I think, upon all the evidence in the case, there is nothing which will justify you in finding a publication by authority of the defendant corporation, or the ratification by the corporation of a publication of this libel. Nor is it necessary that either of these two things should appear to enable the plaintiffs to maintain this action, because the corporation of necessity must act by agents and servants, and the corporation may be charged with publication if those agents or servants in the course of their employment, and within the apparent scope of their authority, publish the libel; and if they publish the libel in the course of their employment, and because of their employment, intending, it may be, to promote the interests of the employer, the defendant corporation, the corporation is chargeable with those acts, and there is the same liability there would be if the corporation, by vote of the directors, authorized the publication of this libel. Or, in other words, stating it briefly, as I did at first, if it appears that the publication was made by one of its servants or agents in the course of the business in which he was employed, that is enough to subject the corporation to liability. ...</p> <p>“ There is evidence tending to show that a certain number of copies of the alleged libel came into the possession of Mr. Turner, and there is evidence, which is not controverted, showing that either Mr. Turner or Mr. Foran delivered or sent certain copies of the paper containing the alleged libel to three or four different persons. . . .</p> <p>“ Now the question to which I wish to direct your attention at present is whether, upon the evidence, you find that Turner and Foran, in putting these copies in circulation, in giving them to the persons I have named, were or were not at the time acting as the agents and servants of the corporation in the course of the business in which they were employed. Of course it might be true that Mr. Turner might publish a libel, meaning by that communicating the defamatory matter to a third person under such circumstances that the corporation of which he was treasurer and general manager would be in no way affected. Mr. Turner might be liable himself, but his employer would not be liable. ...</p> <p>“ Now suppose Mr. Turner had felt some interest in that matter, and suppose Mr. Turner, having a copy of the paper containing the libellous article, had given that paper to a friend of his, or sent it to any person by mail, that would be a publication undoubtedly of that libel, for which Mr. Turner might be liable ; but nobody would claim upon these facts only, nothing further appearing, that the corporation in whose employ Mr. Turner was — the George F. Blake Manufacturing Company — would be subjected to any liability whatever. Other facts might appear of such a character that it would be competent for the jury to find that in giving or sending that paper he was acting in the course of his employment, and within the apparent scope of his authority, so as to charge his employer with liability; but if nothing appeared other than what I have assumed to be true in stating the case by way of illustration, the employer would not be liable.</p> <p>“ Now you will consider what the relation was that Turner and Foran sustained to the defendant corporation. You will consider the relation, so far as the evidence shows it, between this corporation because of the business it carried on, and the plaintiffs because of the business in which they were engaged. You will inquire whether Mr. Turner, whether Mr. Foran, put in circulation copies of that paper, thinking that in some way, directly or indirectly, it might benefit the corporation in whose employ they were. In other words, it all comes back to this, — and I do not much aid you by stating anything more, — you will determine, upon all the evidence in the case, whether the publication was made by the servants or agents of the defendant corporation in the course of the business in which they were employed. And if you say, the burden being upon the plaintiffs to prove that fact, that they were put in circulation by the servants or agents of the defendant corporation while acting in the course of the business in which they were employed, that is sufficient to charge the defendant corporation with liability. . . . If you find that a publication was made by Turner and by Foran, or by one or the other, but made, not in the course of their employment, but as individuals, on their own account, without regard to employment by the defendant corporation, there is no case as against the corporation. The suit should be brought against Mr. Turner personally, or against Mr. Foran personally. On the other hand, if the report is a libel upon the plaintiffs, and was published by the defendant, the plaintiffs are entitled to a verdict, unless the defendant proves something affirmatively which constitutes a defence.</p> <p>“Now consider the defence upon the ground set up in the answer, —that the allegations contained in the alleged libel are true. The defendant must prove, in order to support this defence and to be entitled to a verdict, that all the ■ defamatory charges are true. The justification must be as broad as the chai "ge, and must justify the precise charge made in the printed paper. But if the libel, as in this case, contains distinct and separate imputations against the plaintiffs, each being severable from the rest, so as to be intelligible by itself, and the defendant has proved the truth of one of such distinct charges, such proof will be a defence as to that charge, and the plaintiffs can have no damages by reason of its publication unless they prove that it was published with malicious intention. . . .</p> <p>“ If the defendant, in reference to any one of these distinct charges, has proved the truth of the charge as made, and there is no evidence that the defendant’s servants in making the publication had a malicious intent, then the defendant, as to that particular charge, has shown a defence, and you will not take it into consideration if you come to the question of damages. Taking, however, the whole publication, it is my duty to say to you that the defendants have not justified the publication of the alleged libel, because, as to several of the charges which you may find to be defamatory and to be libellous concerning the plaintiffs, there is no attempt to prove their truth. . . .</p> <p>“ There are two publications in this case, as to which I think it is my duty to say that the occasions were not such as to constitute those publications privileged communications upon uncontroverted testimony in the case. The giving of a paper to Hall, the giving of a paper to Fiske, would not be privileged communications to Hall and Fiske; and you may take that as an instruction in matter of law, and leave those for the time being out of consideration. But the defendant says that as to two other publications, — namely, the publication to Berry, and the publication by sending a copy by Moore to the cashier of the Blackstone National Bank, the latter of which was forwarded to Peoria, and came into the hands of Bergen, and was shown by Bergen to some of his associates upon the city committee, — that these communications were privileged communications, and that this action cannot be maintained for those publications, unless the plaintiffs satisfy you that those publications were made with actual malice. . . . Now in regard to the copy of the paper which went to Peoria, I give you an instruction as requested by the defendant, and it is to this effect. If the jury find that Mr. Bergen was a member of the city government of Peoria, and of its water works committee, and an officer of the Peoria Bank, and that the Blackstone Bank was the Boston correspondent of said bank, and that said Bergen, through said Peoria Bank, addressed to said Blackstone Bank an inquiry as to the plaintiffs and their standing, and if the jury find that thereupon a copy of the libel was sent by the defendant in good faith, and in the belief that it was true, to said Blackstone Bank, in honest response to inquiry of it by said bank as to the plaintiffs and their standing, and that thereafter said Blackstone Bank forwarded said copy to said Peoria Bank, and that through the latter bank the said copy was communicated to a member or members of said committee by the hand of said Bergen, then the publication of that copy by the defendant under those circumstances was privileged, and, even if it resulted in the loss of the Peoria contract by the plaintiffs, still they cannot recover anything from the defendant on account thereof, and of said publication, unless the jury further find that said publication was made by defendant with actual malice. ... If you find, and only if you find, that the facts are as assumed in this statement, will the publication-be a privileged communication.</p> <p>“ And as to the copy given to Berry, I give you this instruction. ... If the defendant gave a copy of the libel to Berry, there having been no previous publication by the defendant, and Berry in procuring such copy acted as the agent of the plaintiffs, and at their request, and such publication was procured with the view to bringing action, the publication was privileged. . . . If you find that Berry, although he thought procuring such a copy might aid the plaintiffs, did it of his own motion, then the giving of a copy to Berry would not be a privileged communication, unless certain other facts appear. ... If you find that application was made by Berry to Foran for information in regard to the standing of Howland and Ellis, and Berry said to Foran that it was a matter in which he was interested, then Foran would have the right, in response to that inquiry, to give a copy of the paper to Berry, assuming, and always assuming, that Foran himself acted in good faith, honestly believing that the charges contained in the printed paper were true in fact.</p> <p>“ Now you must determine what the facts are in regard to the publication to Berry, and then, keeping in mind the rules I have given you, will say whether or not the publication to Berry was privileged, and you will say whether or not the publication by Turner, sending a copy to the cashier of the Blackstone Bank, which was forwarded to Peoria, was in fact a privileged communication.</p> <p>“ But there is something more of great importance to be considered in regard to this ground of defence. If there was actual malice, that destroys the privilege. If you find that the occasion when the publications were made was such as to constitute it prima facie a privileged communication, still if you are not satisfied that Turner or Foran acted in good faith, believing that the charges contained in the printed matter were true, the publication would not be privileged. And further, the publication would not be privileged if, upon all the evidence in the case, yon are satisfied that the publications were made with actual malice. . . . Malice may consist in a direct intention to injure another, or in a reckless disregard of his rights and of the consequences that may result to him. The-jury may draw the inference of malice not only from extrinsic facts, as, for instance, from proof that the defendant lcne'w the charges to be false, or had no reason to believe them to be true, but also from the terms in which the communication is made. If the jury find that the language in the printed paper is intemperate and extravagant, and that it manifestly exceeds the just limits necessary and proper in order to answer any inquiry which had been made by any person interested, this circumstance would tend to show malice. And as bearing upon the question whether the publication to Berry and the cashier of the Blackstone Bank were privileged, you may well consider the fact that the printed paper contains what the plaintiffs claim is defamatory matter in regard to the negotiations and dealings between the plaintiffs and the defendant corporation. Did Mr. Turner believe that those statements in regard to the negotiations between the plaintiffs and his corporation were true? If he had no belief about it, did he act recklessly, knowing, if you find he did know, that such a charge was contained in the paper, in putting that paper into circulation ? And the same inquiries may be made in regard to the paper put in circulation by Foran. If Foran did not act in good faith, honestly believing that the charges contained in the printed paper were true, the publication by him was not privileged. It was not privileged if there was any malice in fact, — a desire to injure Howland and Ellis possibly, because by injuring Howland and Ellis some advantage might result to the defendant. And what I say about the publication by Foran applies as well to the publication by Turner, by giving a copy of the paper, or sending a copy of the paper, through the Blackstone Bank to Peoria.</p> <p>“ If the printed paper is a libel upon the plaintiffs as a firm, and it was published by the defendant, and as to some or all of the defamatory matter the defendant has established no defence, either on the ground that the charges are true, or that the publication was privileged, the plaintiffs are entitled to a verdict.”</p> <p>The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Personal Injuries — Street Crossing — Due Care — Negligence.</p> <p>In an action for personal injuries alleged to have been occasioned to the plaintiff by the negligence of the defendants’ servant, in driving too fast, when, by reason of the gathering darkness and the close proximity of a high loaded team, he was unable" to see whether any one was on the crossing about to pass immediately before him, it was urged by the defendants that it is always negligent for a pedestrian in the streets of a city to attempt to cross behind a high loaded team until it has passed so far as to enable him to see that no other team is coming from behind it on the other side. Held, that the question whether there was negligence on the plaintiff’s part, or on the part of the driver of the team, or on the part of both of them, was for the jury, and that while the plaintiff should take precautions, and endeavor to ascertain whether he was exposing himself to danger, the question as to what precautions were necessary was a matter of fact, and not of law.</p>

<p>Validity of Marriage — Legitimacy.</p> <p>Where two persons have contracted marriage in "good faith in the belief that each can lawfully marry, and it is subsequently discovered that the marriage is void because one of the parties has a former husband or wife alive, a libel for annulling tlie marriage cannot be maintained by the survivor after the death of the other party.</p>

<p>Contract — Specifications — Extrinsic Evidence — Warranty.</p> <p>Duplicate papers were prepared setting forth a bilateral executory contract. One only was signed by A., one of the contracting parties, and delivered by him to B., the other contracting party. A. offered to show, in an action thereon, that it was agreed that the paper was only a partial memorandum, that it did not contain all the provisions of the contract, and that, as part thereof, B. orally warranted a refrigerator. Held, that the paper was consistent on its face with the view that it was intended merely as specifications, and not as containing the ■ whole contract; that the conduct of B. in not signing it was consistent with this view, and that the question whether it was delivered by A. to B., and assented to by the latter as containing the whole contract, was one of fact for the jury, under suitable instructions.</p> <p>An executory bilateral written contract may be varied by a subsequent oral agreement between the parties. The contract when modified by the subsequent oral agreement is substituted for the contract as originally made, and the original consideration attaches to and supports the modified contract.</p>

<p>Devise — Power to sell Real Estate.</p> <p>A testator, by his will, ordered “ that the real estate shall not be sold, divided, or disposed of in any way (excepting the income) till S'., my youngest son, shall have attained the age of twenty-five years; then, if thought best, the real estate may be disposed of in such a way as my surviving children may judge best.” Eeld, that, F. having attained the age of twenty-five years, the heirs of the testator had power to sell the real estate.</p>

<p>Sale of Insured Property — Breach of Condition.</p> <p>In order to constitute a breach of condition of a policy of insurance which provides that the policy shall be void in case of a sale of the property insured, it is immaterial whether the consideration of the conveyance is of substantial value or is merely the technical consideration which is said to be imported by the execution of a deed.</p> <p>Even if a creditor has an insurable interest in the estate of his debtor when conveyed to an assignee in insolvency, yet an interest of that kind would not be a continuation of the former interest of the insured under a policy which provides that the policy shall be void in case of a sale of the property.</p>

<p>Surface Water — Artificial Channel—Tenant at Will — Negligence.</p> <p>A private landholder has no right to collect water into a definite artificial channel and discharge it upon his neighbor’s land; and where the artificial channel is a drain pipe connecting with a public sewer into which surface water flows, a jury is warranted in finding that the landholder was negligent in leaving the drain pipe open, without anything to prevent the flow of water back from the sewer.</p> <p>An action was brought against a landholder for flooding his neighbor’s premises with surface water. The plaintiff was tenant at will of persons who hired the premises of the defendant under a written lease which contained a clause exempting the defendant from liability for loss or damage by fire, “ water, or otherwise.” Held, that, as the action was not brought against the defendant as the owner of the building, the clause did not apply and the action could be maintained.</p> <p>If the jury, in an action for flooding the plaintiff’s premises with surface water, have found by their verdict that the defendant did not use the same care in the construction and management of his cellar as is usual with men of ordinary care and prudence under similar circumstances, the fact that an extraordinary storm contributed to the plaintiff’s injury does not exonerate the defendant.</p>

<p>Motion in Arrest of Judgment— Case reported.— Matter within Discretion of Presiding Justice.</p> <p>After a verdict for the defendant in an action of contract, the case was reported to this court by the justice of the Superior Court before whom it was tried, and judgment was entered for the plaintiff. The defendant sought to have the judgment arrested in the Superior Court merely by producing the record of the original verdict in his favor. The motion was overruled, and he appealed to this court. Held, that the motion was properly overruled.</p> <p>The report by a justice of the Superior Court, after stating the case and the evi- ” dence, concluded, “ The court ruled that upon the evidence the plaintiff was not entitled to recover, and ordered a verdict for the defendant, which was returned, and now, with the assent of both parties, reports the case for the determination of the Supreme Judicial Court, both parties agreeing that, if upon the foregoing evidence the jury would be warranted in finding a verdict for the plaintiff, judgment is to be entered for him for the sum of $511.65, with interest from the date of the writ, otherwise judgment for the defendant.” This court having directed that judgment be entered for the plaintiff, the defendant moved in arrest in the Superior Court, and, the motion having been overruled, he appealed to this court contending that there was no agreement of record for such judgment, and the report containing a statement of such agreement was not a part of the record of the Superior Court. Held, that such a report made in pursuance of the Pub. Sts. c. 153, § 6, for the purpose of obtaining the determination of this court, was, for this purpose at least, a part of the record of the case.</p> <p>A motion to discharge an agreement as to judgment, to set aside a verdict, and to order that the action stand for trial for certain reasons assigned, is addressed to the discretion of the justice of the Superior Court, and an appeal therefrom presents no question of law to this court.</p>