Volume 157 — Massachusetts Reports

<p>Tort, for fraudulent representations alleged to have been made by the defendants as directors of the Electric Advertising Company. Trial in the Superior Court, before Maynard, J., who ruled that the action could not be maintained; and directed a verdict for the defendants. The plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Priority of Preferred Stock — Jurisdiction — Pendency of Similar Suit.</p> <p>A bill in equity was brought by certain holders of shares of first preferred stock in a railroad company duly established under the laws of another State, but having a usual place of business in this Commonwealth, and having five of its directors residing therein. The prayer was that the company be enjoined from issuing certain bonds, except with a stipulation that the bonds should be subordinated to the rights and priority of the plaintiffs and other holders of preferred stock. The defendants set up in their answer and demurrer that the plaintiffs had brought a similar suit, then pending in the Circuit Court of the United States for the district in which the railroad was located. Held, that the plaintiffs ought to resort in the first instance to that court which alone could declare the law of the case with authority, and could compel obedience to it by force, and that the bill should be dismissed.</p>

<p> Evidence as Part of the Res Gestee. </p> <p>In an action for money had and received, it appeared that, in consideration of a sum to be paid by the plaintiff to the defendant, three contracts were to be annulled, and the defendant was to convey to the plaintiff land by a deed which the defendant was to leave at a savings bank with its treasurer. The time when the money was to be paid was in dispute, the defendant contending that it was to be left at the bank on a certain day, when he was to leave his deed there and receive the money, and that he had carried out his part of the agreement, but no money had been left there for him ; while the plaintiff contended that it was agreed that a third party was to furnish him with a portion of the money, for which the third party was to receive a mortgage on the land, and that the defendant was first to leave the deed with the treasurer, who was to notify all parties, and then all were to meet the treasurer at the bank and close the transaction, and also that the money was to be at the bank ready for the defendant. Held, that, in support of the plaintiff’s contention, evidence of the third party was admissible as part of the res gestee that “ before the time defendant delivered his deed to said G. [the treasurer] I had money deposited in said savings bank for that purpose. I took it up, and went and told Mr. G. the money was ready any time when the deed was.”</p>

<p>Injunction — Erection of Stable —License from Board of Health.</p> <p>On a bill in equity praying that the defendants be enjoined from erecting or causing to be erected a stable, it appeared that they had received from the board of health of the city a license to erect it, granted under the St. of 1891, c. 220, at a public hearing at which the petitioners were represented. The petitioners wished to introduce evidence of what would be the natural and probable effect of the erection and use of the proposed building according to the terms of the license. Held, that the statute gave the determination of this question to the board of health, and that the bill should be dismissed with costs.</p>

<p>Complaint, on the Pub. Sts. c. 101, §§ 6, 7, to a trial justice, for keeping and maintaining a common nuisance at Natick.</p> <p>At the trial in the Superior Court, on appeal, before Hopkins, J., it appeared' that the defendant pleaded guilty before the trial justice, and was sentenced by him to both fine and imprisonment.</p> <p>The defendant, before judgment, moved to dismiss the complaint for the following reasons:</p> <p>“ 1st. The trial justice who received and heard the complaint and rendered judgment therein was, at the time of so doing, a citizen, resident, and tax-payer of the town of Natick, in which the offence charged in said complaint was alleged to have been committed.</p> <p>“ 2d. At the time of issuing the warrant in this case and hearing this complaint, there was a record of a former convictian of the defendant of an offence similar to the one charged in this complaint, which was well known to the trial justice who issued said warrant and rendered judgment on this complaint. Wherefore the defendant says that said trial justice had no jurisdiction of this complaint.”</p> <p>The government admitted that the facts set forth in the motion were true.</p> <p>The judge overruled the motion; and the defendant alleged exceptions.</p>

<p>Way — Discontinuance — Action.</p> <p>The discontinuance of a part of a street in a city is not a ground of action by an owner of land on another street, into which, opposite his land, the part of the street discontinued runs obliquely, if the means of access to his estate remain ample, although its money value is diminished by the diversion of travel; and it is immaterial that a small point of land, of which lie owns the fee subject to the public right of way, touches the- discontinued part of the street.</p>

<p>Appeal, by the trustee under the will of Isaac B. Woodbury, from a decree of the Probate Court, disallowing an item of $8,140 in his account. The case was submitted to this court, and, after an order affirming the decree of the Probate Court, to' the full court, on appeal, upon agreed facts, in substance as follows.</p> <p>On November 14, 1884, the appellant was the owner of a second mortgage of $5,000, subject to a previous mortgage of $4,000, upon a block of five wooden tenement houses on First Street, South Boston. On July 8, 1885, possession having been taken under the first mortgage, the appellant procured its release, and discharged his second mortgage and took instead thereof two mortgages to himself from the owner of the equity, one for $8,000 and one for $1,000; said mortgages were given by the latter to secure his notes of that date, and the $8,000 note was payable in six months from said July 8, 1885, with interest semiannually at the rate of seven per cent per annum. The appellant lent this money upon the report of one Clark, whom he had often employed to examine property for him, and who examined this estate and reported that the proposed loan was a safe one. Clark was then about seventy years of age, and had acted as an expert in such matters for the appellant and others, and as such had often examined real estate in Lynn, Salem, and Boston for the purpose of ascertaining values. The appellant was appointed trustee under the will of Isaac B. Woodbury, on December 28, 1885, about six months after he had received the $8,000 mortgage in question. At the time he was appointed trustee, a part of the trust fund was invested in real estate, which he sold with the consent and co-operation of the cestuis que trust. On December 28, 1886, after the $8,000 note and mortgage had become due and payable, he assigned the mortgage and the note to one Ainsworth, who on the same date transferred them to the appellant as trustee under the will of Woodbury, the appellant paying therefor $8,000 from a portion of the proceeds of said real estate. The mortgage note was not indorsed by the appellant. At the time of this transfer no further examination was made of the property, and the taxes upon it for 1885 and 1886 were unpaid, and four at least of five houses had been sold for the tax of 18-85 and the tax deeds recorded. The houses are of a cheap class and not in a good location, and before and ever since the mortgage was taken have been occupied, when occupied at all, by a very poor class of tenants, who have been continually changing, causing a large loss of rents and a great expenditure for repairs. At the time the mortgage was transferred to the appellant, the property was not fairly worth more than $5,200, and at no time since has it been worth more.</p> <p>In the spring of 1888, the widow of Woodbury having died, and the trust, which was for her benefit, having terminated, and the heirs desiring to have the funds distributed, Charles P. Wood-bury, one of the heirs, came to Boston in their behalf and talked with the appellant, among other things, about this mortgage and the mortgaged property. The appellant in this conversation told Woodbury that it was a first mortgage on a valuable piece of property rented for $1,200 per year, and that he had so much confidence in it he had lent of his own money $1,000 on a second mortgage of it; in consequence of which statement Woodbury did not go to see the property at all, but acted solely on the appellant’s statement, which he reported to the other heirs, no one of whom had ever seen said property or known anything about it. After some correspondence between Woodbury and the appellant, in which the foreclosure of the mortgage was urged upon him, the appellant wrote that he had advertised the property to be sold on April 80,1888, and that he did not know whether or not he should be able to find a purchaser. On the back of said letter the following was written, and signed by all the heirs and beneficiaries of the trust fund, and sent to and duly received by the appellant: “ In case the premises covered by mortgages to yourself as trustee do not find a purchaser at sale for more than enough to cover the amount of mortgages, interest, and charges, we hereby request you to bid them in for us.”</p> <p>At the sale, pursuant to that request, the appellant bid off the property in question for $7,500, that being the highest bid made for the heirs, and conveyed it to James Neilson, husband of one of the heirs, for their convenience and at their request. There was another bid at the auction of $7,000. After the foreclosure of the mortgage and the conveyance to Neilson, the property was left by him with the appellant for sale, and several letters passed between Nichols, Woodbury, and Neilson in regard to the disposal of it.</p> <p>In consequence of a letter dated May 24, 1889, written by the appellant to him, Neilson immediately came to Boston, and for the first time saw and examined the property, no one of the heirs having up to that time seen it. He found no tenants therein, the houses having been vacated by order of the board of health, and the estates had been sold for taxes, and in the case of some of them the two years’ right of redemption had expired. He called on the appellant for advice, and at his suggestion he procured releases from the holders of the tax titles, took the keys of the property, made contracts for repairs, and repaired the same, and tried through real estate agents to see if he could dispose of it without loss. Finding that he could not, in December, 1889, he demanded that the appellant should take back the property and pay the estate the $8,000 mortgage, with interest from the time of his last accounting, February 15,1887, together with what Neilson had paid out for taxes and repairs upon the same. Various negotiations occurred between the respective parties with a view of disposing of the property without loss, and finally, on April 16, 1890, Neilson caused a quitclaim deed of the premises to be prepared and formally tendered to the appellant, and, on his refusal to accept the same, cited him into the Probate Court to account, and on or about that time endeavored to rent the property to the best advantage, and employed one Bradbury as an agent to take charge of and rent the same. Since May, 1889, the property had been in the hands of an agent suggested by the appellant until the employment of Bradbury.</p> <p>The appellant contends that he acted in good faith and in the exercise of a sound discretion ; and that, even if the investment were an improvident one, the heirs of the testator, the beneficiaries of the trust, have by their acts approved it and taken the investment of the trustee and the mortgaged property into their own control, and relieved him from liability.</p> <p>The appellees contend that the appellant should account for the $8,000, together with interest from the date of his former accounting, and the sums paid by them for repairs and taxes upon the property less what they have received in rents.</p>

<p>Title to Flats—Colony Ordinance — Boundary—Tidal Channel — Fresh-water Stream,— “ Low-water Mark ”—Pleading — Disclaimer—Judgment in Real Action.</p> <p>A channel, to be a boundary to flats, must be one from which the tide does not ebb at low water.</p> <p>In the Colony Ordinance of 1641-47, providing “ that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows,” the proprietor of the land adjoining “ shall have propriety to the low-water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further,” the words “low-water mark” mean the lowest line made by the receding tide with the land, and not the lowest line which a stream of fresh water emptying into the sea, or a cove or tidal river, makes with the land.</p> <p>A writ of entry was brought to try the title to flats in a river lying between marsk lands on the easterly and westerly sides of the river, belonging respectively to the demandants and the tenant. The river was a fresh-water stream, and, prior to 1820, had a large flow in the winter and spring and a diminished flow in summer, and ran unobstructed to a larger river. It was navigable at certain stages of the tide to a point above the demanded premises, and the tide ebbed and flowed to a point above them. Between the lands of the respective parties was an island, which at ordinary high tide was nearly or entirely covered by water, and which was treated at the trial as flats. This island divided the river into two channels, which united below it; one called the easterly channel, which at high water ran nearer the demandants’ land than the centre of the stream, and the other called the westerly channel, which ran nearer the tenant’s land than the centre of the stream at high water. The demanded premises lay between the edge of the demandants’ marsh land and the centre of the westerly channel, and the distance between the two lines was less than one hundred rods. At ordinary low water there was no water on the demanded premises except such as came from the flow of the river, and that was confined to the two channels. Certain dams were built in the larger river in 1820 and 1821, which thereafter affected the flow of the river in question. In 1885, this river was cut off at a certain point, and tide water was cut off at another point. It did not appear where the line of low tide was, except that it was below the demanded premises. The tenant disclaimed as to the land between the edge of the demandants’ marsh land and the centre of the easterly channel. Held, that, under the Colony Ordinance of 1641-47, the demandants were entitled to recover so much of the flats as fell within straight lines drawn from the termini on the banks of the river at the ordinary stage of the water of the side lines of their marsh land to and at right angles with the centre line of the stream. Field, C. J., and Knowlton & Lathrop, JJ., dissenting.</p> <p>In a writ of entry, the tenant filed a disclaimer as to a part of the demanded premises, and more than a year later pleaded nul disseisin. Held, that it was too late, at the argument iu this court, to object for the first time that the disclaimer should liave been filed as a specification of defence with the plea of nul disseisin.; and that it must be regarded as having been so filed.</p> <p>In a writ of entry, the tenant pleaded nul disseisin, with a disclaimer as to a part of the demanded premises. The demandants did not discontinue the action as to the part disclaimed, but the trial proceeded upon the pleadings as they stood, and the court found generally in favor of the tenant. The finding was reversed by this court as to the part not included in the disclaimer. Held, that the tenant was entitled to judgment upon the disclaimer, but that this did not give him title to the part disclaimed.</p>

<p>Insolvent Debtor—Part Payment of Debt in another State without Liability oj Creditor to account to Assignee in Insolvency — Right of Creditor to prove Balance of Claim.</p> <p>A resident creditor of an insolvent debtor, who has obtained payment in part of his claim out of property of the debtor in another State, for which he would not be accountable to the assignee in insolvency, may prove the balance of his claim here without being compelled to account for the amount so received.</p>

<p>Corporation — Authority to make Mortgage — Notice of Meeting — “ Property.”</p> <p>A corporation organized under the Pub. Sts. c. 106, § 11, for the purpose of supplying heat or warmth by the circulation of hot water through pipes to be laid in the public streets and connected by service pipes with the buildings to be warmed, has authority to make a mortgage of its property.</p> <p>A notice, calling a meeting of the members of a corporation organized under the Pub. Sts. c. 106, § 11, stated the object to be “ to consider the question of an issue of bonds of the company secured by a mortgage on its property.” At the time of the notice, the corporation had a leasehold estate in a parcel of land, with an option to purchase it. After the directors had been authorized at the meeting to purchase the land and to mortgage “ any or all of the rights, estate, property, and franchises ” of the corporation, the land was conveyed to the corporation, the property was mortgaged, and the land was paid for out of the proceeds of the mortgage. Held, that the mortgage was authorized “ at a meeting called for the purpose,” as required by the Pub. Sts. c. 106, § 23; and that the fact, that between the time of the meeting and that of the execution of the mortgage the interest of the corporation in the land changed from an estate for years to a freehold estate, did not make it necessary to call a new meeting or to pass a new vote.</p>

<p>Writ of dower, dated September 23, 1889, by the alleged widow of William Loker. Plea, nul disseisin, with a specification of defence that the demandant was not the widow of William Loker. Trial in the Superior Court, before Blodgett, J., who reported the case for the determination of this court, in substance as follows.</p> <p>It was admitted by the tenant that the demandant was entitled to dower in the demanded premises, unless she was barred of dower by a divorce obtained by William Loker from her in the court of Rio Grande County in the State of Colorado; and he offered in evidence a certified copy of the record of such divorce. The demandant contended that the copy of the record did not show a valid divorce ; but the judge admitted it in evidence, and from it the following facts appeared, 1. That on July 24, 1879, William Loker filed in said court a bill of complaint for divorce, alleging that he and the present demand-ant were married in this Commonwealth on August 19,1871; that he was and had been a resident of the State of Colorado for more than a year immediately preceding the commencement of the action; that in March, 1878, the demandant deserted him without cause, and had ever since lived apart from him without sufficient cause and against his will; and that on March 12, 1879, and at various other times since then, she had committed adultery with a person named. 2. That a summons was issued on said July 24, 1879, by said court, requiring the demandant to appear and answer said complaint within a time named. 3. That a return of non est inventus, dated July 28, 1879, was made on said summons by an officer. 4. That an affidavit was subscribed and sworn to on August 1, 1879, by William Loker, in which he stated that his wife resided out of the State of Colorado, and that her residence was in this Commonwealth, and that the officer had made the return above stated. 5. That an order was issued by said court on August 1, 187 9, that service of said summons be made' upon the demandant by publication in a certain newspaper, and that a copy of said summons and a certified copy of said complaint be sent by mail to her residence. 6. That an acceptance of service of said summons, and an acknowledgment of the receipt of a copy thereof and of a copy of said complaint, were made on August 19, 1879, by the demandant in this Commonwealth. 7. That, after a hearing upon said complaint, on November 4, 1879, a decree of divorce was entered by said court in favor of said William Loker for desertion by the demandant.</p> <p>It was not claimed by the demandant that said William Loker went to Colorado for the purpose of procuring a divorce.</p> <p>The statutes, Code of Procedure, and reports of the Supreme Court of Colorado were put in evidence; and it was agreed that the same might be referred to and treated as evidence at the hearing in this court.</p> <p>The judge ruled that the divorce obtained by William Loker in Colorado was valid and effectual in this Commonwealth; and directed a verdict for the tenant.</p> <p>If the ruling was right, judgment was to be entered on the verdict; otherwise, a new trial was to be granted.</p>

<p>Petition, as amended, filed on March 81, 1888, by Timothy C. Whittemore, for an allowance out of funds in the hands of the receiver of the defendant corporation, as compensation for services alleged to have been rendered to the former receivers of said corporation. The case was heard by Knowlton, J., who at the request of the parties reserved it for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Bill in equity, filed in the Superior Court, to determine the disposition of the proceeds of two policies of insurance upon the life of William Proctor. The case was heard by Dewey, J., who reserved it for the determination of this court upon the pleadings and an agreed statement of facts, the material parts of which are as follows.</p> <p>William Proctor, for many years previous and down to the time of the decease of his mother, Harriet Prescott, assisted largely in furnishing her with all that was needed for her comfort, the balance necessary for her support and maintenance being furnished by her other children, mainly by one Emma Rainsforth. During the lifetime of his mother he caused to be issued two policies of insurance upon his life for the sum of $1,000 each, payable to himself on June 17, 1904; or, if he should die before that time, then to “ Solon Bancroft, . . . trustee for Harriet Prescott.” No statement of the trust intended to be created appeared in the policies or was declared in writing. If it be material, and admissible in this case, which the defendant denies, the defendant admits that the plaintiff would testify that said Proctor in his lifetime made oral statements that his design in creating said trust was that from the proceeds of said policies the care and support of his mother should be continued after his decease, which evidence shall be taken as true. The premiums upon said policies, during the lifetime of Harriet Prescott and after her decease, were paid by Proctor. Harriet Prescott died on February 22, 1889, during the lifetime of Proctor, and the expenses of her burial were provided for by him. If it be material and admissible in this case, which the defendant denies, it is admitted that the plaintiff would testify, and the evidence shall be taken as true, that it was the desire of Proctor after the death of his mother to have said policies changed, so that Emma Rainsforth might be compensated for what she had done for her mother; that the same was not done, and no attempt to do so was ever made ; and that Proctor at the time of the death of his mother was ill with the disease of which he afterwards died.</p> <p>Proctor died on October 23,1889, leaving a will, in which the plaintiff was named as executor, and which will has been duly proved and allowed ; and letters testamentary were issued to the plaintiff. In the will no mention or disposition was made of the proceeds of said policies, other than that the will contained a general residuary clause, under which the devisees claim that the executor should account to them for said proceeds. The plaintiff, as trustee, has collected the amounts becoming due on said policies, namely, $1,957.63, which he now holds subject to the order of the court. The defendant has been duly appointed administrator of the estate of Harriet Prescott, arid has demanded of the plaintiff the amounts so collected on said policies, as part of the estate of his intestate.</p>

<p>Tort, for causing the death of Melbourne F. Jones. The defendant demurred to the declaration. In the Superior Court, the demurrer was sustained, and judgment ordered for the defend-* ant; and the plaintiff appealed to this court.</p>

<p>Deed — Life Estate — “ Convey."</p> <p>A, who owned a parcel of land, executed an instrument reciting as follows: “ This indenture, made ” on a day named in 1873, “ witnessed! that I, A. . . . doth hereby lease, demise, and let unto B. and C., his wife, so long as either one of them shall live, and to their legal heirs after them,” the land, describing it by metes and bounds, “and in consideration of one dollar to me paid by B., I hereby convey to them, to have and to hold during their natural lives, and to their heirs after them, all the above named estate, free from the control or interference of any and all persons.” Held, that the conveyance fell within the Pub. Sts. c. 126, § 4; and that B. and C. took by the deed a life estate only.</p>

Petition for a writ of certiorari to quash the proceedings of the county commissioners of Essex in taking certain land in Marblehead for the enlargement of a burial ground. The case was heard by Knowlton, J., who dismissed the petition ; and the petitioner alleged exceptions. The material facts appear in the opinion.

<p>Deed — Mortgage — Covenant of Warranty.</p> <p>A second mortgage of land recited that the land was “ conveyed subject to ” a certain right of drainage, a certain easement, "and the mortgage hereinafter named ”; and the grantor covenanted that he was seised in fee of the “ aforegranted premises,” that they were free from all encumbrances " except a certain mortgage,” describing it, “ the right of drainage, and the easement aforesaid,” that he had good right to sell and convey the same, and that he would warrant and defend the same “ against the lawful claims and demands of all persons, except the right of drainage and the easement aforesaid.” Held, that the covenant of warranty included the first mortgage.</p>

<p>Harbor and Land Commissioners — Statute — Middle Brewster Island.</p> <p>The St. of 1881, c. 196, does not authorize the Board of Harbor and Land Commissioners to locate and define the courses of the boundary lines between adjacent cities and towns on land which is never covered by tide water, whether the land is an island or on the mainland.</p> <p>Middle Brewster Island in Boston Harbor is a part of"the town of Hull and of the county of Plymouth.</p>

<p>Will — Codicil — Construction — Disposition of Equitable Remainder.</p> <p>A testatrix by her will devised the residue of her estate to a trustee, to divide the same “into four equal portions, and hold, manage, and invest one of those portions for the benefit of each of my children, and pay the net income to him or her for and during his or her life, and at his or her decease to pay, distribute, and convey such portion, in equal shares, to and among his or her children and the issue of deceased children, such issue to take the parent’s share.” By a fourth codicil she ratified her will save as changed by the codicil, in which she directed her trustee to “ hold said trust fund during the lifetime of my now living children and grandchildren, paying to them the portions of the income of the aforesaid fund to which they are respectively entitled, annually, or oftener if he shall think fit, during their respective lives ; neither one of my said children or grandchildren to receive any portion of the principal; and the issue of any of my children deceased shall represent their parent and take the portion of said income which their parent would have taken if living.” She also in the codicil gave the trustee discretion to hold the estate as an undivided fund, or to divide it, as he might think best. The testatrix died in 1883, and the trustee apportioned the estate into four separate trust funds. One of the children of the testatrix died soon after his mother, leaving as his only issue a son, who died in 1890. Held, that the child of the testatrix had an equitable life estate in the trust fund set apart for his benefit, and his son an equitable remainder therein; that the latter was not taken away by the fourth codicil, and that the fund should be paid to the executor of the grandson of the testatrix.</p>

<p>Bill in equity, filed on July 22, 1891, to remove a cloud from a title.</p> <p>The bill alleged that the plaintiffs were owners in fee simple of a parcel of land in Worcester, and that the defendant signed, sealed, acknowledged, and had recorded in the Worcester Registry of Deeds the following writing:</p> <p>“ Know all men by these presents that I, Mason O. Wheeler, of Lynn, in the county of Essex and Commonwealth of Massachusetts, claim an equitable interest in all the land conveyed by Ellsworth and Herrick to Richard Leeds of Boston, Massachusetts, and Thomas B. Townsend of Milton, Massachusetts, in June, 1891, said land being the Wakefield Farm, so called, situated in the city and county of Worcester and Commonwealth aforesaid, and I hereby forbid all persons purchasing said land of said Leeds and Townsend, or either of them. Witness my hand and seal this 8th day of July, 1891. Mason O. Wheeler. [Seal.] ”</p> <p>The prayer was that it might be adjudged that the defendant had no interest in the land; that the plaintiffs might be allowed to convert the land into money, holding the proceeds subject to any trust which might exist in favor of the defendant; and that the defendant might be enjoined from interfering with such sale, and perpetually enjoined from setting up any title in the land.</p> <p>The answer set up that the plaintiffs purchased the premises through the defendant, who had control of a bond for a deed, both parties having in view that the defendant should be employed to manage the property, and for his services should have one fourth of the profits.</p> <p>Hearing before Allen, J., who was of opinion that the caveat did not constitute a cloud upon the plaintiffs’ title, ordered the bill to be dismissed without costs, and reported the case for the consideration of the full court.</p>

<p>Recovery of Corporate Tax — Demurrer — Appeal—Unissued New Shares.</p> <p>Under the Pub. Sts. c. 13, §§ 38-40, which provide that in taxing a railroad corporation the aggregate value of the shares in the capital stock is to be taken as a basis of assessment, the Commonwealth cannot include, in estimating such value, proposed and unissued new shares in the capital stock.</p> <p>Where the Commonwealth is the only party defendant, an appeal, taken under the Pub. Sts. c. 151, §§ 13, 16, from a decree overruling a demurrer should be in the name of the Commonwealth, and not in that of the Attorney General.</p> <p>By the Pub. Sts. c. 151, § 19, a party who has by accident or mistake omitted to claim an appeal from a decree overruling a demurrer within the time allowed may be permitted to appeal at any time within one year. Held, where an appeal taken in the name of the Attorney General should have been taken in that of the Commonwealth, that, although the formal objection had not been waived, yet as leave to enter an appeal now might be granted, and as the case had been fully argued on the merits, the substantial question would be considered upon which the decision of the court was desired.</p>

<p>Marriage in another State — Complaint against Infant for Non-support of his Wife.</p> <p>The general rule of law is, that marriage contracted elsewhere, if valid where it is contracted, is valid here, although the parties intended to evade our laws, unless the statute declares such marriage void, or the marriage is one deemed “ contrary to the law of nature as generally recognized in Christian countries.”</p> <p>An infant husband is entitled to his own wages so far as they are necessary for his own support and that of his wife and children, even if he married without his father’s consent, and the ruling of the presiding justice, on a complaint against him for the non-support of the wife, that the “ wife would be entitled to receive support from” her husband, and that he “would be entitled as of right to such portion of his wages as to enable him to support his wife,” and “ that the father could only claim the rest,” is sufficiently favorable to the defendant.</p>

<p>Suit by Receiver — Findings of Single Justice — Bond — Decree.</p> <p>While the receiver of a corporation appointed by a court of equity cannot bring suits in his own name to recover property of the corporation never in his possession unless authorized so to do by statute, or by a decree of a competent court, or unless the title of the property has been conveyed to him, yet if there is no other objection to the maintenance of a bill in equity, it may be amended by substituting the name of the corporation for that of the receiver.</p> <p>The objection of the defendant in a bill in equity was that no proceedings had been taken to ascertain whether certain parties from whom a bond had been taken by replevin, or any other person, had any claim to the bond, and that no decree should be entered until this had been done. Held, that, in the absence of any report of the evidence on the finding of fact of the justice who heard the cause, the court could not say that the objection was not properly overruled.</p> <p>If it is not contended that the decree appointing a receiver required him to give a bond, then the fact that he has not given one is no defence to a suit brought by him. Any person interested can apply to the court to have him give one, if thought necessary,</p> <p>On a bill in equity, brought by a receiver of a corporation to obtain a fund and its accumulations held by a trustee of the bondholders of the corporation as substituted security for a bond which had been lost, the justice found that more than twenty years had elapsed after the maturity of the bond and before the filing of the bill, and that the bond was in the possession of the receiver, no other person having any interest therein, and decreed that the trust be terminated and that the defendant pay over to the plaintiff the original amount with accumulations, less his reasonable fees and expenses. Held, that, unless the parties could agree upon the amount for which the defendant was chargeable, the decree should be slightly changed by requiring that an account should be taken of the condition of the fund, and of any losses or interest or profits for which the defendant was chargeable, and of all allowances that should be made to him, and that when the balance for which he was chargeable was ascertained he should be ordered to convey the securities and the money for which he was chargeable to the receiver.</p>

<p>Adoption — Prolate of Will — Appeals ly Next of Kin — Issues to Jury — Fraud— Unsoundness of Mind — Undue Influence.</p> <p>A single woman, having adopted a son by a decree of the Probate Court, died five years thereafter, leaving a will in which she gave him her entire estate. The will was proved in the Probate Court, and the next of kin appealed to this court. Thereupon the latter presented to the judge of the Probate Court a petition praying that the decree of adoption be revoked and set aside, on the ground of unsoundness of mind of the adopting parent, and of undue influence practised by, and fraud of, the adopted son. The petition was dismissed, and an appeal also taken to this court. The appellants moved in this court to have issues in both cases framed for a jury; in the adoption case, on the grounds of unsoundness of mind and undue influence at the time of the proceedings in the Probate Court and thenceforward until the adopting parent’s death, of fraud upon the judge of probate, and of the petitioner’s ignorance of the facts till after the adopting parent’s death; and in the will case, on the grounds of her unsoundness of mind at the time of her execution of the alleged will and of the undue influence practised upon her by her adopted son. Held, that the decision of a single justice, refusing to frame issues for the jury in either case, was right.</p>

<p>Corporation — Electric Wires — Statute — Injunction.</p> <p>The St. of 1887, c. 382, § 3, provides: “ In any city or town in which a company is engaged in . . . the manufacture and sale of electric light, no other company shall lay or erect wires over or under the streets, lanes, and highways of such city or town for the purpose of carrying on its business, without the consent of the mayor and aldermen,” etc. An information was brought by the Attorney General under the above statute and that of 1885, c. 314, § 13, to restrain the defendant company, which was incorporated since the St. of 1887, from using certain wires over which it furnished electricity for lighting in a city. There were companies in the city engaged in the manufacture and sale of electric light at the date of the act, and the defendant had not obtained the consent required by it. The wires were of three classes: first, two wires in a tunnel under a street, laid without license by a predecessor of the defendant; secondly, wires put up by the defendant and belonging to it, throughout their entire length, except where they crossed the streets, the portions which crossed the streets having been sold by the defendant to its customers, or put up by the defendant for its customers in some instances, in others having "been put up by the customers with the intent to evade the statute; thirdly, wires put up by customers, and belonging to them, the intent presumably being again to evade the statute. Held, that the statute impliedly prohibited the maintenance and use of all the wires, and that an injunction should issue.</p>

<p>Intoxicating Liquors — Question for the Jury.</p> <p>On a complaint for unlawfully exposing and keeping for sale intoxicating liquors, with intent unlawfully to sell the same on the Lord’s day, there was evidence tending to show that two policemen entered the premises on Sunday and found the defendant’s servants and others not in the employ of the defendant, one of whom was drinking ale, and that the defendant was at his home, over a mile away. The servants testified that they were cleaning up the shop; that some of those present were employed to assist them; that no sales were made, and that they had been frequently instructed by the defendant not to sell on the Lord’s day. Held, that it was a question for the jury whether the defendant’s conduct in giving the instructions not to sell on the Lord’s day was suspicious or not.</p>

<p>Probate Appeal — Framing of Issues for Jury — Declarations of Testator to Attorney — Finding of Single Justice.</p> <p>In probate appeals the framing of issues for a jury rests in the discretion of the presiding justice. While the exercise of this discretion may be reviewed by this court on appeal, yet the decision will not be disturbed if the court has no means of determining that the justice who declined to frame issues was wrong.</p> <p>The attorney who draws a will will not be allowed, without the consent of the testator while living, to testify to communications made to him concerning the will, or to its contents; but when the will is presented for probate after the testator’s death, the attorney may testify-as to directions given to him by the testator, so that it may appear whether the instrument presented for probate is or is not the will of the alleged testator.</p>

<p> Town By-Law—Authority of Selectmen—Laying out of Highway—Prohibition. </p> <p>Under a by-law which provides that “ the selectmen shall have full authority, as agents of the town, to employ counsel, to institute and prosecute suits in the name of the town, and to appear for and defend suits brought against it, unless otherwise specially ordered by vote of the town,” the selectmen have authority to appear for the town at a hearing on a petition to the county commissioners for the laying out of a highway, and by reason of their participation therein upon the merits of the petition it is no longer open for the town to object that the proceedings were invalid for want of power in the board as constituted to make the order for the view and hearing and for the giving of notice.</p> <p>The writ of prohibition will not be issued to a court having jurisdiction merely because its proceedings are irregular.</p>

Petition for a writ of mandamus to compel the respondent Wellington to refrain from attempting to act as a member of the board of public works of the city of Pittsfield, and to compel the respondents Daly and Jones to recognize and receive the petitioner as a member of that board, and to act with him as such in the duties pertaining thereto. Hearing before Barker, J., who reserved the case, upon the petition, answer, and agreed facts, for the determination of the full court.

<p>Contract. The writ was dated October 16, 1890. The declaration alleged that on December 8, 1889, the plaintiffs entered into a written contract with the defendant, whereby the plaintiff’s agreed to purchase and the defendant to sell a certain quantity of brick at a certain price, to be delivered on or before June 15, 1890; that the plaintiffs had been always ready to discharge their part of the contract, but the defendant had refused to perform its part-thereof. The answer was a general denial, with allegations of fraud.</p> <p>At the trial in the Superior Court, before Barker, J., the following facts were agreed: that the plaintiffs made an assignment for their creditors at common law on January 8, 1890, and immediately notified the defendant thereof; that the property was held by the assignees pending the insolvency proceedings hereinafter described, and was reconveyed to the plaintiffs on or before April 17, 1890; that on February 4, 1890, the plaintiffs filed a voluntary petition in insolvency in the Court of Insolvency for the county of Middlesex, and on the following day filed in that court a schedule of assets required by law, wherein no mention was made of any interest in the above contract; that on March 13, 1890, a composition on the part of the insolvents was duly confirmed by said court, and in the following May the plaintiffs sent and the defendant received a letter in which the plaintiffs declared themselves ready to perform their part of the contract, and called on the defendant to perform its part thereof.</p> <p>The defendant called one Thompson, its treasurer, who testified that in January, 1890, after the witness had been notified of the assignment, he attended a meeting of the creditors at which , one Noreross, one of the plaintiffs, read a statement of the assets, which made no mention of any interest in the contract; that at some time previous to April 23, 1890, the witness learned, through his counsel, that the schedule of assets filed by the plaintiffs in their insolvency case made no mention of any interest under the contract; that about the last of January, or early in February, 1890, the witness met one Parry, who was an extensive manufacturer and dealer in brick, and one of the assignees under the assignment for the benefit of creditor's, and asked him if, as assignee, he should claim the contract; that Parry said he would talk with his attorney about it; that Parry seemed indifferent about it, and did not leave an impression with the witness that he would claim the contract; that subsequently the witness met Parry, and asked him again if he was going to claim the contract, and he, Parry, answered about the same as before; that the witness, did not have any interview with any of the plaintiffs between January 8 and April 23,1890, in regard to delivering brick under the contract; that some time in April he agreed to sell to others the brick which were to have been delivered to the plaintiffs; that the brick were not in existence when the contract declared on was made, but were to be manufactured at the defendant’s works in Columbia Falls, in the State of Maine; and that no one on behalf of the plaintiffs or their assignees ever paid or offered to pay or to secure to the defendant any money for carrying out the contract.</p> <p>The defendant called one King, its president, who testified that both Glidden and Parry knew that the brick would have to be manufactured; that he had told them so, and that he had no conversation with any of the plaintiffs between January 8 and April 23, 1890.</p> <p>The testimony of Thompson and King was not controverted by the plaintiffs, but it appeared that the defendant did not ask for any money or security for the performance of the contract after the failure, from either the plaintiffs or their assignees.</p> <p>The judge ruled that the evidence contained in the agreed facts, and in the testimony of Thompson and King, constituted no defence, and the jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

<p>Decree of Single Justice — Dissolution of Partnership — Agreement to purchase Assets and Good Will — Agency— Fiduciary Relation — Purchase of Partner’s Interest.</p> <p>It is a well settled rule that the decree of a single justice of this court will not be reversed or modified unless it clearly appears to have been erroneous.</p> <p>■A partnership consisting of A. and B. was dissolved by B.’s giving notice of his ' intention to dissolve, and filing a bill for dissolution. A., relying upon a supposed agreement with C. to assist A. in purchasing the business and good will, agreed to a decree dissolving the firm, appointing B. receiver, and providing a mode of sale of certain partnership assets, including the good will. C. withdrew from the arrangement. A day having been fixed by the court for the sale by auction, A. applied to D., who introduced A. to E., and the latter, having examined into the affairs of the firm, proposed to A. to pay a certain sum for his interest; but when the written agreement was produced, it ran to D. instead of E., and it was then signed, on March 31, by both A. and D without objection from A. The agreement fixed the price at $10,000, provided for additional compensation to A. in case D. should purchase B.’s interest and form a corporation, and stipulated that A. was to sell and D. was to buy for $30,000 certain real estate. On the same day A. gave D. a bill of sale of his interest in the business, with a power of attorney to D. to act for A. in the suit of B. against A., and binding A. to aid D. in purchasing at the sale appointed by the court. D. having in April made demand on A. for a conveyance of the real estate, A. executed with his wife a bond agreeing to convey the same. There was no fraud or misrepresentation on the part of D. or E. in procuring either of these instruments. The sale occurred on April 2. Previously D. without the knowledge of A. had interviews with C., who was anxious to acquire the property. On March 31, D. without the knowledge of A. signed an agreement with C., and C. gave D. $10,000, and D. supposed that he was to act as C.’s agent at the sale. On April 1, the form of the agreement was changed, to the effect that the $10,000 should be a loan. The property was bid off at the sale to D. for $150,000, and C. declined to take it. D. paid the $15,000 required by the terms of sale, and then sold the property for $150,000 to a corporation in another State. A. some time after claimed that the relation between him and I). was one of trust and confidence, and brought a bill in equity against D. for an account. Held, that the relation between A. and D. was not a fiduciary one, that D. was not employed by or acting for A, as his agent, and that the bill could not be maintained.</p>

<p>Tort, in two counts, to recover damages for injury to the plaintiff’s real estate. The writ was dated February 17, 1890.</p> <p>The first count was as follows: “The plaintiff owns an estate with brick buildings thereon, situated on Chardon Street, Boston. The defendant owns and controls the estate next southerly to plaintiff’s estate, with the stable thereon. There is upon the defendant’s estate a large cesspool without drain or outlet, into which filth and the urine of large numbers of horses is emptied; and the defendant has so negligently built, maintained, and caused such cesspool to be used that large quantities of said urine and filth have percolated through the soil and emptied into the basement of plaintiff’s estate, to his great injury and damage, and especially causing him loss of rental of said building, loss of the use of a well thereon, and expenses connected therewith.”</p> <p>The second count was identical with the first, except that it alleged that the filth had been allowed to accumulate on the defendant’s estate, and had percolated through the soil and emptied into the basement of the plaintiff’s estate.</p> <p>At the trial in the Superior Court, before Hammond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries occasioned to the plaintiff by being struck by an elevator in the defendant’s building.</p> <p>Trial in the Superior Court, before Blodgett, J., who directed a verdict for the defendant, and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Findings of Master and Single Justice — Exceptions — Pledge of Slock.</p> <p>If the finding of a master purports to be on the whole evidence, an exception thereto on the ground that the finding is merely a conclusion or inference from the facts previously found is properly overruled.</p> <p>If a justice of the Superior Court finds on the evidence as the master has found, this court will not reverse their findings unless clearly wrong.</p> <p>On a bill in equity to redeem certain shares of stock alleged to have-been pledged to the defendant as collateral security for a loan, it appeared that the transaction was made through an agent of the pledgor or seller, and the defendant’s chief contention was that, whatever the pledgor or seller may have thought, the defendant understood it to be a sale, and this was the only contract with the agent. The certificates were indorsed in blank by the owner, and the contention was, that, if a principal intrusts to his agent certificates so indorsed, he is estopped to set up secret instructions to his agent qualifying or restraining his authority. Held, that there was no occasion to consider this question of law, as the finding that the transaction was a pledge was equivalent to a finding that all the parties so understood it.</p>

<p>Expulsion of Member of an Order—Laws and Rules of Supreme Council — Sufficiency of Charges — Mandamus.</p> <p>A person who, in becoming a member of an order, one of whose purposes is the establishment of a benefit fund for the family, orphans, or dependents of deceased members, submits himself to the jurisdiction of the body, cannot, after his expulsion in accordance with the laws, rules, and usages of the order bring a petition for a writ of mandamus to compel the Supreme Council to restore him to membership.</p> <p>Where the Supreme Council of a body has original jurisdiction in all cases of its own officers and members, but no mode of procedure is specified for their trial, it may adopt such mode of trial as it pleases, subject only to the implied limitation that it must be fair.</p> <p>The trial of a member of the Supreme Council of an order was conducted according to its laws and rules, with such substantial fairness as the nature of the case would admit of. Charges with specifications in writing, sufficiently minute and specific to give him notice of the ground of complaint, were preferred against him, and he had an opportunity to be heard upon them. A committee appointed by the Supreme Council heard the evidence, recommended the plaintiff’s expulsion, and the Supreme Council voted to expel him. Held, on a petition for a writ of mandamus to compel the Supreme Council to restore him to membership in the order, that no inference of unfairness could be drawn from the terms of the report of the committee or from its recommendations of expulsion, and that the charges were sufficient in form within the meaning of the laws, in that they stated clearly the accusation, although not in technical terms.</p>

<p>Charter-Party — Bottomry Bond — Freight — Demurrage — Set-off.</p> <p>A charter-party provided that the vessel was to proceed from a port in Georgia to Surinam, South America, and back to New York or Boston; that the charterer was to furnish at the Georgia port a full cargo of lumber, and at Surinam sufficient cargo or ballast for the voyage ; that the charterer was to pay “ for the use of said vessel during the voyage aforesaid ” certain charges and fees, and a certain sum “ for each and every thousand feet, superficial inch invoice measure, delivered at Surinam, which shall be in full for the voyage out and home, two hundred dollars in specie tó be advanced the captain at Surinam, free of premium, exchange, or commission, the balance payable on return of vessel and proper discharge of cargo. If vessel should be lost after discharge of outward cargo, one half of this charter shall be considered due and payable at Boston ”; and that for each day's detention of the vessel at Surinam, by the default of the charterer or his agent, in excess of thirty running lay days, demurrage at a certain rate should be paid by the charterer. The vessel loaded with lumber at the Georgia port, and proceeded to Surinam, in entering which port she was damaged, but delivered her cargo to the consignee, and was there repaired. To pay for the repairs, the master of the vessel borrowed a certain sum from the charterer’s agent, and executed a bottomry bond to him, by the terms of which the “ vessel, her tackle, apparel and furniture, and freight as per charter-party,” were hypothecated. This bond was assigned to the charterer by the agent. The charterer made certain advances to the master at Surinam as provided in the charter-party. The vessel loaded a homeward cargo, but was detained, by default ’ of the charterer or his agent, a certain number of days over the lay days stipulated in the charter-party. She then started on her homeward voyage, sprung aleak, put into St. Thomas for repairs, was surveyed, condemned, and sold. A draft was drawn there by the master to pay general average and other expenses, to secure which bills of lading for the homeward cargo, shipped by the master by another vessel, were pledged, and to obtain the bills the draft was paid by the charterer. A general average was stated subsequently. Held,, in an action on the charter-party, that neither the freight on the outward voyage, nor demurrage, was included in the bottomry bond; that the advances at Surinam were to be deducted from the outward freight; and that the charterer was entitled to recover in set-off the proportion of the draft drawn at St. Thomas, due from the vessel to the cargo, as adjusted.</p>

<p>Appeal, by Henry W. Blagge and Susan B. Samuels, from a decree of the Probate Court made on February 3, 1892, granting the petition of Francis V. Balch, administrator rie bonis non with the will annexed, of Henry Hatch, and ordering that a certain portion of the funds in their hands, as administrators de bonis non with the will annexed of Crowell Hatch, be paid to Balch, as administrator aforesaid.</p> <p>Hearing before Barker, J., who, at the request of both parties, reserved the case on the petition, decree, order of distribution, and agreed statement of facts, for the full court. The facts appear in the opinion.</p>

<p>Fishing Voyage — Statute — Lien of Master and Seamen — Subrogation,</p> <p>If the catch of a fishing voyage is delivered to the owner of the vessel to he sold, the master and seamen have, under the U. S. Rev. Sts. §§ 4391-4394, no lien which can be enforced against the money received from the sale of the fish; and hence, where the vessel has been sold to pay the demands of the master and seamen, there is nothing to which the mortgagee of the vessel can be subrogated. Holmes, Knowlton, & Morton, JJ., dissenting.</p>

<p>Administrator and Administrator de Bonis non — Accounts — Insufficient Allegation— Waiver.</p> <p>An administrator has the right to file and settle the account of his intestate as administrator de bonis non of an estate in the Probate Court before he can be called upon to deliver all of the assets in his hands belonging to the estate. Field, C. J., Knowlton & Barker, JJ., dissenting as to goods and chattels of the first intestate which remain in specie unadministered and unappropriated.</p> <p>Where, on a bill in equity by an administrator de bonis non to compel the administrator of the administrator de bonis non’s predecessor to deliver the personal property of the first estate to the plaintiff, it appeared that the plaintiff had been appointed administrator de bonis non since the filing of the bill, the court treated the case, no objection being made, as if the plaintiff’s appointment had been made before the commencement of the suit.</p> <p>The question whether an administrator should receive compensation for filing and settling the account of his intestate as administrator de bonis non of an estate in the Probate Court, if his intestate has been guilty of maladministration, is a matter for that court to pass on in the first instance.</p>

Contract, on a promissory note. The writ was dated October 18, 1890.

<p>Bill in equity, filed on November 14,1890, for specific performance by the defendant of its agreement to purchase land.</p> <p>Hearing before Lathrop, J., who reserved the case for determination by the full court, a final decree to be made in accordance with such determination. The facts appear in the opinion.</p> <p>The case was argued at the bar in January, 1892, and after-wards was submitted on the briefs to all the judges.</p>

<p>Indictment, in four counts, for the murder of Deltena J. Davis, on December 23, 1891, by drowning.</p> <p>At the trial in the Superior Court, before Mason, C. J., and Blodgett and Hammond, JJ., the jury returned a verdict of guilty of murder in the first degree against the defendant Trefethen, and a verdict of not guilty for the defendant Smith; and Trefethen alleged exceptions. The facts appear in the opinion.</p>

Indictment, in three counts, for murder. Held: him the said John Whalen in and upon the head of him the said Whalen on the left temple bone thereof upon the left side of said head then and there at Washington aforesaid feloniously, wilfully, and of his malice aforethought did strike, giving unto him the said Whalen then and there with the axe aforesaid by the stroke aforesaid in…

Petition to the Superior Court for a jury to assess the damages caused by the taking by the respondent city of land of the petitioners for the laying of a sewer, under the St. of 1888, c. 354, entitled “ An Act to establish a board of sewer commissioners for the city of Northampton.” At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the petitioners; and the respondent alleged exceptions. The facts appear in the opinion.

<p>Action by Partners— Contract of Individual Partner.</p> <p>A firm consisting of A., B., and C. cannot recover upon the strength of an arrangement made between the defendant D. and C. individually, while the latter was in business alone, and before the existence of the partnership, to the effect that C. might sell merchandise to E. on D.’s credit until he gave him notice to the contrary.</p>

<p>Tort, for personal injuries occasioned to the plaintiff’s intestate in alighting from an open car of the defendant, on May 31, 1890.</p> <p>At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Tort. The declaration was as follows: “And the plaintiff says that the defendant has converted to his own use one meat cart, one spring wagon, one meat box-sleigh, the property of the plaintiff.” The defendant, a deputy sheriff, justified under a writ against the husband of the plaintiff, upon which he attached the property. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows.</p> <p>The plaintiff claimed the property by virtue of an assignment of a mortgage, which mortgage had been given by her husband to one Burke before her marriage, and by Burke assigned to her after her marriage. After the attachment, and before execution, a notice was served on the defendant to pay the amount due on the mortgage, but the defendant did not so pay, but subsequently sold the property in dispute, to satisfy the execution issued on the judgment against the husband of the plaintiff.</p> <p>The plaintiff offered the mortgage, the assignment, and the mortgage note in evidence. The defendant objected to their admission, on the ground that the declaration did not set forth the fact that the plaintiff claimed the property as assignee of a mortgage, but the judge admitted the evidence; and the defendant excepted. The plaintiff also offered in evidence the notice served on the defendant. The defendant objected to its admission, on the ground that the declaration did not set out the fact that a notice had been given, and also that the notice itself was defective and insufficient in not being directed to the officer, but the judge admitted it; and the defendant excepted. The notice, which was dated January 15, 1891, and signed by the plaintiff, was as follows: “Ansel Wright, Esq. Sir, — I hereby demand of you two hundred dollars, with interest at six per cent from Feb. 5th, 1890, deducting from said interest the sum of $7, which $200 and balance of interest is the amount due to me as assignee of a mortgage made by Jas. P. Duggan, and delivered to Thomas E. Burke, and duly assigned to me by said Burke, which mortgage is dated Feb. 5th, 1890, and recorded with Northampton city records of mortgages, in Book 4, page 121, and the assignment is dated July 7th, 1890, and recorded in Book 4 at page 122 of said records, which mortgage covers the property, and one meat cart, spring wagon, and box sleigh, now held by you on attachment, as the property of said Jas. P. Duggan.’’</p> <p>The defendant testified that he had made no objection to the notice until the trial, and he had requested the attorney of the plaintiff not to bring a suit against him until after the plaintiffs in the action against the" husband of the plaintiff in this case would say whether or not they would give the defendant a bond of indemnity; that if said plaintiffs would not give such bond, he would surrender the property to the plaintiff in this action, and the attorney did wait; and that his attorney informed him, when he received the notice, that it was a defective notice, but the defendant did not make this known to the plaintiff or her attorney.</p> <p>The plaintiff introduced evidence that, on April 8, 1889, James P. Duggan, the husband of the plaintiff, borrowed $300 of Mary Clair, the mother of the plaintiff, and had paid no part of it until June 13, 1890, when he received $500 from the trustees of the Smith Charities, under whose rules he had been apprenticed.</p> <p>A check of $200 was a part of the $500, and was indorsed in blank by James P. Duggan and delivered to Mary Clair in part payment of the $300, and it was kept by her in her own possession until the marriage of the plaintiff to Duggan, on June 24, 1890, when Mary Clair gave the check to the plaintiff as a marriage gift. After the marriage the mortgagee pressed for payment of the mortgage debt, and the plaintiff, having kept the check in her own possession since it was given to her, handed it to her husband with instructions to deliver it to her attorney for the purpose of paying the mortgage debt, and having the mortgage assigned to her. The husband took the check, gave it to the attorney, who paid it to the mortgagee, and the mortgage was thereupon assigned to the plaintiff.</p> <p>The defendant offered the evidence of David J. Wright, a dealer in wagons, admitted by the plaintiff to be an expert, who at one time had owned the meat cart and spring wagon. Wright had examined the meat cart, spring wagon, and sleigh in October following the attachment, but there was no evidence or offer of evidence, except as appears in the questions to the witness Wright, as to how the property had been kept or used in the mean time. He was then asked what, in his judgment, was the value of the articles when they were taken by the' defendant, but the plaintiff objected; and the judge excluded the evidence.</p> <p>The witness was then asked: “ Suppose the property from Feb. 23, 1891, up to October of the same year you saw it, had not been used, and had been kept under cover, would there have been any change in the value of the property during that time?” The plaintiff objected to this question on the ground that the property was not kept under cover, but, on the contrary, had been kept exposed to weather and storm from the time of its attachment until late in the spring.</p> <p>The defendant stated that he was prepared to show that the property had been kept under cover, and not used, from the time of the attachment until the time the witness Wright saw it. The judge excluded the question; and the defendant excepted.</p> <p>The defendant asked the judge to rule as follows:</p> <p>“ 1. If the husband took the money himself and paid it to the mortgagee through his attorney, the payment operated as a payment by the husband of his own debt, and the wife cannot recover in this action.</p> <p>“ 2. The plaintiff, being the wife of James P. Duggan, and the assignee of the mortgage given by James P. Duggan, cannot maintain this action.</p> <p>“ 3. If the check was indorsed in blank by the payee, it passed to the husband on delivery to him, and his paying it to his mortgagee through his attorney operated as payment of the debt of the husband.”</p> <p>The judge refused so to rule.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Indictment, in two counts, for the murder of Nellie F. Holmes, the defendant’s wife. The indictment was as follows:</p> <p>“ The jurors for said Commonwealth, on their oath, present that Wallace W. Holmes of Chicopee, in the county of Hampden, on the first day of September, in the year eighteen hundred and ninety-one, at Chicopee aforesaid, in the county of Hampden aforesaid, in and upon the body of one Nellie F. Holmes, feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said Wallace W. Holmes then and there, with his hands and feet, the said Nellie F. Holmes, feloniously, wilfully, and of his malice aforethought, did strike, beat, and kick, in and upon the head, breast, back, belly, sides, and other parts of the body of the said Nellie F. Holmes; and did then and there feloniously, wilfully, and of his malice aforethought, cast and throw the said Nellie F. Holmes down unto and upon the floor and ground, with great force and violence, there giving unto the said Nellie F. Holmes, then and there, as. well as by the beating, striking, and kicking of the said Nellie F. Holmes, in manner and form aforesaid, as by the casting and throwing of the said Nellie F. Holmes down, as aforesaid, several mortal strokes, wounds, and bruises in and upon the head, breast, back, belly, sides, and other parts of the body of the said Nellie F. Holmes, of which said mortal strokes, wounds, and bruises the said Nellie F. Holmes then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Wallace W. Holmes the said Nellie F. Holmes, in manner and form aforesaid, then and there, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.</p> <p>“ And the jurors aforesaid, upon their oath aforesaid, do further present that the said Wallace W. Holmes, at Chicopee aforesaid, in the county of Hampden aforesaid, on the first day of September, in the year eighteen hundred and ninety-one, in and upon one Nellie F. Holmes, feloniously, wilfully, and of his malice aforethought, did make an assault, and the said Nellie F. Holmes, in some way and manner, and by some means, instruments, and weapons, to the jurors unknown, did then and there feloniously,' wilfully, and of his malice aforethought, deprive of life; so that the said Nellie F. Holmes then and there died; and so the jurors aforesaid, upon their oath aforesaid, do say that the said Wallace W. Holmes the said Nellie F. Holmes, in manner and by the means aforesaid, to them the said jurors unknown, then and there, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace of said Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided."</p> <p>Trial in the Superior Court, before Mason, C. J., and Dewey and Hopkins, JJ., who allowed a bill of exceptions, in substance as follows.</p> <p>The government called as a witness Mary J. York, who testified that the defendant and Nellie F. Holmes were married in July, 1882, and that the last time she ever saw either of them was nine years ago, and offered to prove by her certain threats made by the defendant against Nellie F. Holmes, and also certain ill treatment of her by him, all of which, both ill treatment and threats, were in and prior to May, 1883, but after their marriage. This evidence was admitted, against the defendant’s objection; and the defendant excepted. The government further offered to prove, by one Charles S. Kenyon, a son of Nellie F. Holmes by a former marriage, certain ill treatment and threats at various times and places, the last of which were about three years before the alleged murder. The defendant objected to the admission of this testimony, but the court ruled that “ for the purpose of showing continuous bad treatment, the court would allow evidence of any such treatment after marriage”; and the defendant excepted. *</p> <p>Kenyon then testified that the defendant threatened to kill Nellie F. Holmes in Montreal, in the year 1888, and also testified to threats of a like nature made previously to this, at various times from 1882 down to 1888, in Pawtucket, R. I., and in Albany and Binghamton, N. Y.; that in Albany the defendant held Nellie F. Holmes by the throat on the floor, and with a knife in his hand threatened to cut her throat; that in Binghamton the defendant came home with two revolvers and chased her from the house; that the witness often saw the defendant strike and ill use her at different places where they lived; and that all of this occurred more than three years preceding the alleged murder.</p> <p>Fred E. Crandall testified that five years and a half ago, while living in Providence, R. I., he heard the defendant threaten the life of Nellie F. Holmes; that he saw the defendant, at that time and place, also strike her; and that, four years and a half ago, at the same place, the defendant threatened to break her back and to kill her.</p> <p>Ellen Crandall testified that in Pawtucket, five years ago, she heard the defendant threaten to kill Nellie F. Holmes; and the witness also testified to the defendant making further threats thereafter, at Providence, to kill Nellie F. Holmes, and hack her to pieces ; that the witness saw the defendant, at the same time and place, strike and choke Nellie F. Holmes; that on another occasion, at the same place, and about the same time, the witness saw xthe defendant holding Nellie F. Holmes by the throat, with a pistol in his hands pointed at her head ; that the defendant was also kicking her, and threatening to kill her; that she saw the defendant, about four years before the time of the alleged murder, in Montreal, kick Nellie F. Holmes so that she fell on the floor, and also at the same place she saw the defendant take her by the hair of the head, drag her off the bed on to the floor, and choke her. It appeared that, after living in Montreal, the defendant and his wife were separated for about fifteen months; that they then lived together for a time in Holyoke, and moved to Chicopee in the winter of 1890-91.</p> <p>The government also offered the evidence of eleven other witnesses to threats of the defendant against the life of his wife, and to acts of violence by him upon her, in July and August, 1891; that on August 14, 1891, the defendant, in conversation with one Haskell, said that he was leaving off drinking and was going to be a better man, and said, “ You know that my wife sued me fpr non-support.” The witness said that he did not know it. “ Well,” said the defendant, “ I want to have you remember one thing, she ’ll never live to see that day come off.”</p> <p>One Nash also testified that, in the same conversation, the defendant said, “ The woman would never- live to see the day she would get it.” The government had previously introduced evidence that Mrs. Holmes had begun a proceeding for separate maintenance in August, 1891.</p> <p>The body of Mrs. Holmes was found on November 3, 1891, buried in the cellar of the house which the defendant and his wife occupied down to the time of her disappearance, on September 1, 1891.</p> <p>The government offered to prove by Dr. L. M. Tuttle, who was medical examiner of Holyoke and who made the autopsy, that certain sand or dust was found in the windpipe of Nellie F. Holmes at the time of the autopsy ; that the mouth and nostrils were filled with sand, which sand in the windpipe must have been inhaled either during life or by artificial respiration ; that the sand in the mouth very nearly filled the mouth; that it was crowded right in, and the mouth was open; and that it might have got in by sand being thrust into the mouth. The defendant objected to the admission of this evidence, but the court admitted it; and the defendant excepted.</p> <p>Similar evidence as to dust and sand in Mrs. Holmes’s throat was given in detail by the four physicians who took part in the autopsy. No witness testified whether he was before the grand jury, or as to what appeared before the grand jury. There was also evidence, on the part of all the physicians, that the cause of the death could not be positively stated, from the appearance and their examinations of the body, which was much decomposed when found, but they all testified that a quantity of clotted blood was found in the lower left side of the abdomen, which resulted from a rupture of blood-vessels during life, and which might have been the result of violence, and have caused the death. There was also other evidence against the defendant.</p> <p>At the close of the evidence, the defendant moved that the indictment be quashed, on the ground that, at the time the indictment was drawn, the grand jury knew of the possible cause of death; that the defendant had been brought to trial without notice that this evidence was to be produced; and that he had not been fully, formally, and sufficiently informed of the charge. The court overruled the motion ; and the defendant excepted.</p> <p>The defendant asked the court to instruct the jury as follows:</p> <p>“ 1. Upon the evidence, the jury must be satisfied beyond a reasonable doubt that Nellie F. Holmes was killed by a kick, blow, or in other ways, as set out in the first count of the indictment, or they must return a verdict of not guilty. 2. The jury, upon the evidence, must return a verdict of not guilty. 3. There is a variance between the allegations of the second count and the evidence, and for that reason the jury must return a verdict of not guilty.”</p> <p>The court refused to give the instructions asked for, and instructed the jury upon these points, in substance, as follows:</p> <p>“ The proof must conform to the allegations. If all the material allegations in either of the two counts are proved beyond a reasonable doubt, there must be a verdict of guilty. If all the allegations upon the one count, or upon the other, that are material to some crime set out in the indictment are not established beyond a reasonable doubt, there must be a verdict of not guilty. In the second count one of the allegations is that the way and manner, the means, instrument, and weapon, by which the deceased was deprived of life, were to the grand jurors unknown. That is a material allegation. It is an allegation as to which it has been repeatedly held there need not be any affirmative evidence introduced ; if nothing appears with reference to the question whether the grand jury knew or did not know the way and manner, means, instrument, or weapon, that was the effective cause of the death of the deceased, the allegation of ignorance in the indictment itself would be sufficient. But when there is evidence bearing upon that question, whether the grand jury knew or did not know, the burden is upon the government to establish beyond a reasonable doubt that the grand jury did not know the way and manner, or the means, instrument, or weapon, by which the deceased was deprived of life. . . . This is a question of fact for you to determine upon the evidence, whether the allegation in that count is sustained by the evidence before you, that the grand jury did not know. You are to keep in mind that the test is not what the grand jury might have known by proper effort, but what they did in fact know. So far as the means of information shown to have been before them helps you to determine what they did in fact know, so far it can be considered. But the test is, did the grand jury in fact know in what way and manner, by what means, instrument, or weapon, Nellie F. Holmes was deprived of life. If you are satisfied upon the evidence, beyond a reasonable doubt, that they did not know, then the second count of this indictment is sufficient to sustain conviction, if its other allegations are also established.</p> <p>“ In the first count there is the allegation of the use of a great variety of means in perpetrating the crime. To sustain a conviction under that count, or to prove the allegations of that count, it is not necessary to prove that all the means set out in that count were in fact used, or were in fact effective in causing death. It is sufficient that it be proved that death resulted from some one of them, or any of them combined. After what has been said upon the allegation of ignorance in the second count, it cannot be very material whether the government sustains this charge as it is set out in the first count or as set out in the second count. If the jury should be in doubt upon the allegation in the second count, then there could be a conviction only in case the government has proved the allegation in the first count. But if you are satisfied, upon the evidence, that at the time when the indictment was found the grand jury did not know which of the means caused the death, then it would be quite immaterial whether the government succeed in making it certain that death followed in the manner set out in the first count, or as set out in the second count.”</p> <p>The jury returned a verdict of guilty of murder in the first degree; and the defendant alleged exceptions.</p>

<p> .Devise and Legacy. </p> <p>A testator by his will, after disposing of a certain sum in legacies, gave “ the dividends and income of my shares of stock of ” certain banks named, including the C. Bank, “to the amount of ten thousand dollars ” to a certain charitable institution, and directed that “ it be kept as a permanent fund, . . . the income of which only shall be expended,” that “in the expending of said income ” preference should be given to a class of persons named, and that “ the said shares of bank stock shall not be sold unless it becomes absolutely necessary.” By another clause of the will, he gave a similar amount to another charitable institution, to be constituted in part of certain specified shares of stock, and the balance of the sum to be made up from other property not specifically devised. By a third clause of the will, after certain devises, he gave all the residue and remainder equally to the two institutions, to be added to the fund given by the preceding clauses, “ and to be a permanent fund, the income only to be used.” The testator had in his own name shares in the banks named, the aggregate market value of which was $7,800. In addition to these shares, there were sixteen other shares of the stock of the C. Bank, of the market value of $2,300, in which the testator was interested. The certificates for the sixteen shares stood in the name of the testator’s sister F., who died five years previously, and who owned them until her death, and who by her will gave the rest and residue of her estate to the present testator and' her brother J. “ to have and to hold the same to them and the survivor of them and to the heirs of such survivor forever ” The testator and J. were appointed administrators with the will of F. annexed, and took possession of all her estate, including the sixteen shares of stock, but did not change the certificate. J. died four years later, and up to that time the dividends on the sixteen shares were drawn sometimes by the testator and sometimes by J. The testator, whose will was made three months after J.’s death, was appointed administrator of J. ’s estate, but never qualified. After the testator’s death, A. was appointed adminstrator of J.’s estate, and made no claim to the sixteen shares. A. was also appointed administrator de bonis non with the will annexed of the estate of F., and filed an inventory including the sixteen shares. Held, that the testator intended to give to the institution first named the shares of the banks specified in that clause, either standing in his own name or in which he had the beneficial interest under the will of F., to the amount of $10,000 in market value.</p> <p>A testator by his will gave “ the use of my share of the homestead and furniture, and of all property save small legacies left as a residue and remainder, for one year after my decease, and as much longer as she shall choose to stay and use the same,” to H.; “ and after the settlement of my estate, I give to her during her life the use of three fifths, and to her brother, J., the use during his life of two fifths of the rest, residue, and remainder of my estate,” the same to “ be held in trust for him ” by the executor of the will; and provided that “ whatever household furniture there may be over and above the wants of H., I wish her to distribute among family relatives, according to her best judgment.” Held, that the testator meant to give to H. the use of the testator’s share of the homestead and furniture so long as she should choose to stay at the homestead, charging her to distribute among the family relatives any furniture which she might not herself want; that “ the rest, residue, and remainder” of his estate included all his property (except the share in the homestead and furniture) not needed to satisfy the legacies given in the preceding clauses of the will; that of the residuary property H. was to have the use during the time reasonably consumed in the payment of debts and legacies and othqr matters connected with the settlement of the estate; and that the court could not determine what was intended by the words “ save small legacies.”</p>

<p>Contract, for breach of the following agreement: “ $250. Springfield, Mass., May 7, 1888. Received of Mrs. J. R. Murray $250 on account of purchase of house and lot 343 Worthington Street, at $6,000. She is to have deed of the property when $1,000 is paid; $5,000 to remain on mortgage, at five per cent interest; $250 to be paid every three months until $1,000 is paid. Amaziah Mayo, by A. N. Mayo.”</p> <p>At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Insolvent Debtor — Jurisdiction — Absent Defendant — Payment into Court — Laches.</p> <p>It is no objection to the jurisdiction of this court to entertain a bill in equity, under the Pub. Sts. c. 157, § 15, to set aside a decree of the Court of Insolvency, that service on the insolvent, who has left the Common wealth, is by publication of an order requiring him to appear and answer in accordance with the 5th chancery rule.</p> <p>The payment of money into the Court of Insolvency, under the St. of 1884, c. 236, as amended by the St. of 1885, c. 353, as a percentage on claims of creditors under a composition confirmed by that court, should be large enough to cover all the claims against the debtor according to his schedule, except so far as the amount is modified by the proofs previously allowed by the court.</p> <p>An insolvent’s schedule of creditors contained the name of A., a foreign creditor, and of B., a domestic creditor; and both had notice of the insolvency proceedings, but they did not prove their claims, and no deposit wras made on account thereof. The order of deposit for the payment of claims'proved, the deposit in pursuance of the order, and the order of discharge were made on the same day. A. learned that there was no deposit for him three months afterwards. Two months later, he brought a bill in equity under the Pub. Sts. c. 157, § 15, to set aside the decree of the Court of Insolvency granting the discharge, and B. was allowed, upon his petition, more than a year afterwards, to join in the bill. The justice who heard the case found that B. “ expressed to a representative of the insolvent his indifference to the insolvency proceedings, his intention not to prove, and his expectation of adjusting matters to his satisfaction outside of the courts, and this was his state of mind in fact ”; that the insolvent was warranted by the conduct of A. in understanding that he declined to accept the offer of composition; that A. subsequently offered to prove his claim, if something more than the amount of the composition could be secured to him; and that “ the plaintiffs owed, and did not show, the most exact diligence in asserting their rights, in view of the interests of third persons, including creditors who had attached in suits which were pending against the insolvent.” Held, that the bill should be dismissed.</p>

<p>Railroad— Contract — Award of Commissioners — Pleading — Finding.</p> <p>Two railroad corporations, the A. corporation and the B. corporation, executed a contract for the joint operation of their roads under the management of one agent, the joint net income to be divided between them, sixty-nine per cent, thereof to A. and thirty-one per cent to B. During the continuance of this contract, which expired in October, 1878, no terminal charges were claimed by either corporation from the other, and during that time the corporations jointly owned as tenants in common the freight-houses in the terminal city, in the proportions above stated; and the title so continued until November, 1880, when B. conveyed its interest in the freight-houses to A. From October, 1875, to October, 1880, A. occupied the freight-houses for its terminal business, and no charge was made by A. against B. for terminals, or by B against A. for rent of the freight-houses. In January, 1879, B. filed a petition with the Board of Railroad Commissioners, requesting that, as the two corporations could not agree on the reasonable compensation for which A. should draw over its road the passengers, merchandise, and cars of B., and provide for it suitable depot accommodations, (as each was required to do by the St. of 1877, c. 372, § 166,) the commissioners would determine the question, and apportion to the corporations their respective shares of the expenses, receipts, and income of the traffic. The commissioners awarded “ that A. shall at reasonable times draw over its road the passengers, cars, and merchandise of B., and provide convenient and suitable depot accommodations therefor; and in consideration of its so doing, and in full compensation therefor, the receipts and income from the transportation in which said corporations are so jointly interested shall be apportioned pro rata between them on the basis of the mileage of said transportation over their respective roads.” They also awarded a certain rate per mile for the use of cars; and recited in the award that, “by the understanding of parties, the question of ’ terminal freight charges was not considered or included.” After January, 1879, when the award took effect, the services specified therein were paid for according to the terms of the award; and A. subsequently paid B. for the use of its portion of the freight houses and grounds. A. afterwards brought an action against B. for terminal charges on freight from October, 1878, to October, 1880. Held, that the action could not be maintained.</p> <p>Two railroad corporations, the A. corporation and the B. corporation, executed a contract for the joint operation of their roads under the management of one agent chosen by concurrent vote of the directors of both corporations, the joint net income to be divided between them, sixty-nine per cent thereof to A. and thirty-one per cent to B. While the contract was in force, the agent employed C. for the two corporations. C. becoming dissatisfied with the amount of his salary, an arrangement was made by which C. bought a dwelling-house with money furnished by A., and gave A. a mortgage of it. Afterwards the house was conveyed by C. to A., and his mortgage and note were surrendered. C. paid no interest on the mortgage, and no rent; and he and his successor in the employment occupied the house as part compensation for their services. The net profits of the business of the two corporations were divided from time to time between them as required by their contract, but no sum was included in the accounts for the.use of the house, a fair rental for which was §250 a year. A. brought an action in the Superior Court against B. to recover thirty-one per cent of that sum during several years while the contract was in force, alleging that the omission to include it in the accounts was by mistake, and that it was due A, “ as money had and received to its use.” The case was referred to an auditor, who found, as matter of law, that the plaintiff was not entitled to recover. The defendant set up in its answer, and contended, that, if the plaintiff had any legal claim growing out of the use of the house, it was for the use and occupation of the house, and not for money had and received; and asked the court to rule that, upon the pleadings and report, the plaintiff was not entitled to recover. The court, trying the case without a jury upon the auditor’s report as the only evidence, "found and ruled that the plaintiff was entitled to recover” a certain sum. Held, that the finding of the Superior Court was right; and that an amendment of the count was not necessary in order that the plaintiff might take judgment on the finding.</p>

<p>Trial— Trust in Personal Property — Evidence.</p> <p>That a case proved at the trial differs from that stated by the plaintiff in his opening affords the defendant no ground of exception, if the evidence was competent under the pleadings.</p> <p>In an action at law to recover money purporting to be conveyed, by an instrument under seal, to the defendant absolutely, oral evidence is admissible to show that the money was conveyed to the defendant in trust, to keep it and to pay it over to the plaintiff on demand.</p>

<p>Arbitrament and Award— Corporation— Contract — Ultra Vires.</p> <p>If tlie.parties to a submission to arbitration agree orally that certain items of the claims submitted shall be heard and determined separately and in the first instance by the arbitrator, and join in a request for such hearing and determination to the arbitrator, who assents thereto, and full hearings on these items are accordingly had, and arguments are made, and an award upon them is'reduced to writing and duly published by reading the same to the parties, a subsequent revocation of the submission to arbitration does not affect such award, which is a valid defence to an action by one of the parties against the other upon a claim covered by the award.</p> <p>The directors of two railroad corporations, the A. corporation and the B. corporation, respectively, executed an agreement for the joint operation of their roads, under the management of one agent, for a certain limited time, which contained the following stipulation. “The road-bed, bridges, superstructures, depots, buildings, and fixtures of each road shall be kept as near as may be in like relative repair from their present state and condition.” There was no express ratification or adoption of this agreement by the stockholders of the two corporations until the next year, when the stockholders of each voted to extend the contract for twenty years. Meanwhile, committees of the directors of each corporation had agreed that the B. corporation was in an inferior condition to that of the A. corporation, that this inferiority was equivalent to the cost of re-, placing three hundred tons of old rails with new, and that, in the final settlement, the iron of the B. corporation should be left in the same relative worse condition, or otherwise its improved relative condition should be paid for by the B. corporation on its separate account. This adjustment was adopted by the directors of each corporation. At the termination of the contract, the rails of the B. corporation were not in a relatively worse condition than those of the A. corporation, and the cost of replacing three hundred tons of old rails with new at that time would have been $9,711.88. This improvement in the condition of the road of the B. corporation was paid for out of the joint fund, thirty-one per cent, of which belonged to the A. corporation. Held, upon a bill in equity by A. against B. for an account, that A. was entitled to recover thirty-one per cent, only of $9,711.88, and not the whole of that sum.</p> <p>In an action between two railroad corporations, one chartered in this Commonwealth and one in another State, upon a claim arising out of a contract for the joint operation of the two railroads, this court cannot declare the contract ultra vires, no such defence being set up in the answer or taken in the lower court, and no provision of statute nor decision in either State being cited in support of the defence, and there being nothing to show that the contract was ever objected to by the Legislature or by any public board or officer of either State.</p>

<p>Writ of entry, to foreclose a mortgage of land in Northampton, described as follows: “ A certain tract of land bounded northerly by land now or formerly of Charles Dayton and land now or formerly of Justin Thayer’s estate; easterly in part by land formerly of Charles Delano and in part by land of the Connecticut River Railroad Company; southerly by land now or late of the heirs of Dennis Ryan; westerly partly by King Street and partly by land of said Connecticut River Railroad Company.” Plea, nul disseisin. Trial in the Superior Court, without a jury, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The demandant, which was a corporation, produced in evidence a mortgage purporting to be signed by Anson Harrington and witnessed by one Sarah Harrington. Sarah Harrington was not called to prove the execution of the mortgage. The demandant proved that its president had made inquiry for her in Northampton and searched the county records, but had not found or learned of her. George Harrington, a witness for the demandant, testified that Sarah Harrington was living in the State of New York; that she had been at his house on a visit within three weeks, and had since returned home. The judge ruled that the execution of the deed might be proved by secondary evidence; and the tenant excepted. The demandant then called said George Harrington, who testified that he was the son of Anson Harrington, and had seen him write; that the signature to the mortgage looked like his father’s, he thought it was his father’s signature, but he had not seen him write or been written to by him for more than twenty years, (he had been dead fourteen years,) and that he would not swear that the signature was his. The demandant offered no evidence of the handwriting or signature of Sarah Harrington. The deed was then admitted in evidence.</p> <p>It appeared that the mortgage was given on February 4,1869, to secure a loan of $2,500, payable in one year, with semiannual interest at six per cent; that the rate of interest had been reduced to five per cent, and that the same had been paid to the present time, except the last two instalments, which were overdue. The demandant offered in evidence a deed to the tenant of the land described in the mortgage, which deed contained an identical description of the locus, and also a recital that the grantee should assume and pay the mortgage; and also offered in evidence the deeds of two former owners of the land. The description in these of the locus was, as to abuttals and boundaries, the same as that in the Harrington mortgage. There was no evidence offered to show that the tenant had ever been in possession of any land bounded as in these deeds. It was admitted by the demandant that no land of the Connecticut River Railroad had at any time abutted on or bounded the demanded premises, save as the railroad ran through the middle of the same and divided it. Except as to the railroad, evidence was offered which tended to show that the abutters named in the writ were correct. The demandant proved that a peaceable entry had been made in its behalf by its president upon the demanded premises.</p> <p>It appeared that the demandant kept a record of its acts, but no evidence was offered of any action or vote taken or recorded by it in relation to the foreclosure of this or other mortgages by action at law, or any authority given the president to act for the corporation, except the following, passed at a meeting held on May 12, 1891: “ Voted that the President of the Trustees of the Smith Charities is hereby fully authorized to sign checks and drafts and do all business incident to the ordinary duties of the corporation.” The president, who was the only one of the trustees present at the trial, testified that he had been a trustee for several years; that the amount due on the mortgage was $2,654.24; that he had brought the action; that the other trustees knew of this, and had informally and individually authorized the suit; that the president of the corporation is its general manager and chief executive officer of the business of the corporation, which was principally to keep the fund invested in mortgages and other securities, and make the payments directed by the will of Oliver Smith; and that he had not known of the foreclosure of any other mortgage held by the corporation by bringing suit upon it.</p> <p>No evidence was offered to show that the demandant had given notice to the tenant to vacate the demanded premises; and it was admitted that she had no notice.</p> <p>The tenant asked the judge to rule as follows:</p> <p>“ 1. The demandant, three incorporated trustees who keep a record of its acts, does not show any legal action or vote warranting the bringing of this action or authorizing the president of the board to bring the same, and it cannot be maintained.</p> <p>“ 2. The demandant cannot maintain this action without previously giving to the tenant as mortgagor a reasonable notice to quit and deliver up the demanded premises.</p> <p>“ 3. The demandant, having elected its remedy by making a peaceable entry upon the premises, had no right to maintain this action after such entry and before foreclosure thereunder.</p> <p>“ 4. There was a material variance between the allegation and description of the land in the demandant’s count and the proof offered in support thereof.</p> <p>“ 5. The demandant’s evidence did not disclose that sufficient and adequate inquiry had been made or sufficient means taken to procure the attendance or evidence of the attesting witness to the Anson Harrington mortgage, and, upon such evidence as was offered, secondary evidence of his signature could not be offered.</p> <p>“ 6. The execution of the Anson Harrington mortgage was not proved.”</p> <p>The judge refused so to rule; ruled that, upon the foregoing evidence, the action could be maintained; and found for the demandant in the sum of §2,654.24, and ordered conditional judgment therefor. The tenant alleged exceptions.</p>

<p>Personal Injuries — Sewer — Liability of Selectmen—Due Care — Negligence — Action — Evidence.</p> <p>In an action against the selectmen of a town for personal injuries occasioned to the plaintiff by the negligence of the defendants, in failing to provide suitable means of support for the sides of a trench in which they had employed the plaintiff to lay pipe for the purpose of building a public sewer in one of the streets of the town, the questions whether the sides of the trench, the falling in of which was caused by a wash-out, were properly supported, and whether the plaintiff, who was experienced in building sewers, and was ignorant of the washout, in digging out the sides of the trench to the extent which he did in order to lay the pipe, and in failing to observe the condition of the sides of the trench, was in the exercise of due care, are for the jury.</p> <p>The selectmen of a town, who are engaged in building a public sewer in one of its streets, are liable to an action for injuries occasioned to a person employed by them to lay pipe in the bottom of a trench, by reason of their failure to provide a proper support for the sides of the trench.</p> <p>In an action against the selectmen of a town for personal injuries occasioned to the plaintiff by the negligence of the defendants, in failing to provide suitable means of support for the sides of a trench in which they had employed the plaintiff to lay pipe for the purpose of building a public sewer in one of the streets of the town, the records of the town, showing the laying out of the sewer by the selectmen, and the votes of the town accepting the location and appropriating money to build the sewer, are admissible in evidence.</p>

<p>Contract, to recover the amount of certain taxes paid by the assignees of the Winona Paper Company. The cases were submitted to the Superior Court, and, after judgment for the plaintiffs, to this court on appeal, on agreed facts, which, so far as material, appear in the opinion.</p>

<p>Personal Injuries — Master and Servant — Minor — Due Care — Negligence.</p> <p>In an action for personal injuries occasioned to a boy fourteen years old by having his hand crushed between the rolls of a lap-winder in the defendant’s cotton mill, it appeared that he had been employed in the mill for about three weeks, not having worked in a mill before, but that he was not hired to work upon the lap-winder, although it was in his sight when at his work, and he had noticed how it operated; that he was hired to mind the cards, mend broken ends, keep the cards clean, and the floor clean around four sections; that he was told by the overseer of the room to attend to that work and to no other; and that he was injured while assisting a workman in doubling the laps, who called him to do so, and who had always called some one to his assistance for that purpose, but liad always called a man previously. The evidence was conflicting whether the workman was the second hand of the room, or merely a card-grinder, and so a common laborer; and whether he gave the plaintiff any instructions. There was also evidence that the plaintiff was not very smart, and was rather dull; and that he did not respond to the workman’s call until called three times, the last time with an oath. Reid, that the questions whether the plaintiff was improperly at the lap-winder when injured, and whether he was in the exercise of due care and the defendant was negligent, were for the jury.</p> <p>If the overseer of a room in a mill imposes upon a workman labor which it is impossible for him to perform without assistance, and knowingly acquiesces in his obtaining the assistance from such other workmen in the room as he chooses to call, and the workman in good faith, and for the purpose of performing such labor, though not in the exercise of good judgment, orders a boy to assist him who is unfit by reason of inexperience and lack of instruction, and who, while rendering such assistance, is injured, the owner of the mill stands in the relation of master to the person injured.</p> <p>Where a workman in a mill is injured by having his hand caught in a machine, the running of which is stopped promptly, and before his hand is released another workman starts the machine for the purpose of extricating the injured hand, and not in the prosecution of his work, although the act is careless and causes further injury, the employer, if liable for the original injury, is liable also for the aggravation of the injury.</p>

<p>Contract, against the trustee under the will of George W. Upham, for money had and received. Trial in the Superior Court, before Maynard, J., who, at the defendant’s request, ruled that the action could not be maintained, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion.</p>

<p>■ Contbact, against the executor of Mary Dewitt, to recover five hundred dollars upon an agreement made by the plaintiff with the defendant’s testatrix in her lifetime.</p> <p>At the trial in the Superior Court, before Maynard, J., the plaintiff testified as follows:</p> <p>“ I saw Mrs. Dewitt in the fore part of August, 1883, in Oxford. I went there from Homesburg, a suburb of Philadelphia. That was on Sunday morning, August 11th. On Monday, August 12th, I and my aunt went out walking through the garden, soon after breakfast. We returned in after our ramble through the garden, and were seated in the sitting-room on the old hair sofa talking over things, and she holding me by the hand. She said, 1 Ben, there are few left to come to my funeral. I have thought a great deal of you for coming to your uncle’s funeral and bringing that large box of flowers in that terrible snowstorm we had, when our friends could not reach here from Boston, and you coming here from Philadelphia. I want you to attend my funeral, Ben, if you outlive me, and I think you will, and I will pay all expenses and I will give you five hundred dollars. I want you to come.’ I agreed to come if I lived, and they notified me of her death. After talking of the many gone and the few left, she says, 11 want you to come to my funeral. If you will agree to come and attend my funeral if you outlive me,’ as near as I can give the precise language, ‘ I will give you five hundred dollars and pay all expenses. It is a good ways to come, but I want yap to come.’ I promised upon my honor to attend her funeral if I was a living man, and they informed me in time to get there, and I was able.</p> <p>“ I saw my aunt again in 1885. I was at the funeral of my mother, and after it was over I went and called upon my aunt. Aunt says, ‘ Another one is gone of the family, and we shall go soon, but don’t forget your agreement or promise to attend my funeral.’ I says, ‘ I sha’n’t do it, aunt, and I shall come if I am able and they let me know in time to get here.’ I am not quite positive, but I am very sure she says, ‘ Ben, I am going to give you five hundred dollars in the will, one half that your uncle did.’ My aunt died in 1887. I attended her funeral. I attended it on account of my promise. The writing on that envelope is my aunt’s, and the paper in it is also in her handwriting. It came into my possession, I cannot tell exactly when, but soon after I returned from my aunt’s funeral. It came to me sealed, and I cut it open with my scissors.”</p> <p>The paper was as follows:</p> <p>“ $500.00. Oxford, August 14th, 1883. If Benjamin A. Earle should come to my funeral, I order my executor to pay him the sum of five hundred dollars. Mary Dewitt.”</p> <p>The defendant offered no evidence, and the plaintiff having rested his case, the judge directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Railroad Accident — Animal — Barrier at Crossing of Private Way — Evidence— Trespass — Negligence—.Due Care.</p> <p>In an action against a railroad corporation for causing the death of the plaintiff’s horse, which escaped from his land adjoining the railroad, through an open gate, which, together with a gate on the other side of the tracks, had been erected at his private crossing by the corporation ten or twelve years previously, evidence that bars had been used there formerly instead of gates is immaterial.</p> <p>In an action against a railroad corporation for causing the death of the plaintiff’s horse, which escaped from his land adjoining the railroad through an open gate which had been erected at his private crossing by the corporation, the plaintiff having testified that the gate had been out of repair by being sagged and difficult to shut, and allowed to remain open for several years, it was held that the exclusion of the question, on cross-examination, whether he had ever requested the defendant to repair the gate before the accident was within the discretion of the court.</p> <p>In an action against a railroad corporation for causing the death of the plaintiff’s horse, which escaped from his land adjoining the railroad through an open gate which had been erected at his private crossing by the corporation, evidence that the gate had remained open nearly all the time for about two years, that the defendant’s section-master had repeatedly passed through it without attempting to shut it, and that it was in such a condition that it could not be opened or shut by a reasonable effort on the part of those having occasion to pass through it, will warrant the jury in finding that the defendant neglected the duty imposed upon it by the Pub. Sts. c. 112, § 115, to keep the gate in proper repair.</p> <p>The fact that a horse escapes from the control of its owner, and passes from his land adjoining a railroad through an open gate, at his private crossing, on to the railroad tracks, does not make the horse a trespasser, or preclude the maintenance of an action against the railroad corporation for causing the horse’s death.</p> <p>In an action against a railroad corporation for causing the death of the plaintiff's horse, which escaped from his land adjoining the railroad through an open gate which had been erected at his private crossing by the corporation, there was evidence that the gate had remained open nearly all the time for about two years, that the defendant’s section-master had repeatedly passed through it without attempting to shut it, and that it was in such a condition that it could not be opened or shut by a reasonable effort on the part of those having occasion to pass through it. There was also evidence that the plaintiff and others, who were accustomed to use the crossing, had habitually left the gate open for two years or more, that it had become sagged and warped, and that its sagging was , caused by its being left open. The plaintiff testified that he and his servants always closed the gate during the first five or six years after it was erected, that it was left open because it was difficult to shut, and that he used to shut and open it when he could; and his servant testified substantially in a similar manner. Held, that the questions whether the plaintiff exercised due care in use of the-crossing, and whether the defendant’s negligence in failing to repair the gate was the sole cause of the accident, were properly submitted to the jury.</p>

<p>Personal Injuries — Due Care — Negligence — Burden of Proof.</p> <p>In an action to recover for the pain and suffering of the plaintiff’s intestate, and for money expended for the services of physicians by reason of injuries received by him while in the defendant’s employ, the only person who was in the room at the time of the accident testified that she saw the intestate going up the ladder with an oil can in his hand, that she heard the can drop, and looked up and saw him falling between the girt and the shafting. Held, that the evidence did not disclose anything from which the cause of the accident could be reasonably inferred, and that the burden on the plaintiff to show that his intestate was in the exercise of due care was not sustained.</p>

<p>: Petition, filed in August, 1891, for the review of a judgment for $678.17 and costs, obtained by the respondent against the petitioner in July, 1891, in an action in the Superior Court. 'Hearing in the Superior Court, before Bond, J.</p> <p>The only cause of complaint was the failure of the petitioner’s attorney to attend at the trial and to notify the petitioner of the time when the case would be reached. The petitioner’s affidavit was as follows : “ I did not know of trial until I was served with notice of sale on execution. I did not receive any notice of trial of any kind from anybody.”</p> <p>The petitioner’s attorney made the following affidavit:</p> <p>“ I was employed by Elmer A. Sylvester, of Orange, to defend an action of Z. A. Hubley, of Worcester, against him and his brother Amasa, entered in the Superior Court for the County of Worcester on or about February, 1899, and entered my appearance accordingly and filed an answer to the suit. It was continued from term to term until November sitting, when it was placed on the trial list, but by agreement of parties was continued again. ... I had kept my client, Elmer A., posted as to the case, and having received no pay for my services I had spoken to him several times about it, and that he must pay, in part at least, if he wished me to continue to act as his counsel, and he promised again and again that he would call and pay me, but never did. After Mr. Field [counsel for the plaintiff] notified me that he should place the case on the trial list for June sitting, I again notified Elmer A., I think more than once, that the case would be heard in June, and that he must pay me something if he expected me to appear and try the case for him, for I should not go to court at my own expense. He again said he would pay me, but never came near me. I notified him by word of mouth and by letter several times before the case came off, and as he made no response I felt under no obligations to appéar at the trial, and did not. I relied principally upon Elmer A. for my pay, and not upon Amasa, as the latter had no attachable property, and did not claim to have any defence to the action.”</p> <p>The attorney did not withdraw his appearance from the case. It was agreed that, if Elmer A. Sylvester were present, he would deny that he received any notice from the attorney, as stated by the latter in his affidavit.</p> <p>The petitioner alleged that he had a good defence to the action. The judge ordered that a review be granted, and the respondent alleged exceptions. .</p>

<p>Trustee process. Writ dated May 19, 1891, upon which the plaintiff attached, as the property of the principal defendant, and as in her possession, a certain piano, then in the house occupied by her, upon which, at the date of the attachment, May 20, 1891, there were of record two mortgages given by her, one to Sarah F. Heald, dated December 21, 1889, for the nominal consideration of $400, and one to Frank H. Howe, dated May 17, 1890, for the nominal consideration of $75. Sarah F. Heald and Frank H. Howe, summoned as trustees, each answered that, at the time of service upon them, they had no funds, goods, effects, or credits of the principal defendant in their possession. The principal defendant was defaulted on January 29, 1892.</p> <p>The plaintiff, bn February 4,1892, filed interrogatories to the alleged trustees respectively, in answer to which Sarah F. Heald stated that she had a mortgage of a piano given to her on December 21, 1889, by the principal defendant, to secure a promissory note also given to her by the principal defendant; and Frank H. Howe stated that he took a mortgage of the piano from the principal defendant on May 17, 1890, for $75, lent her at the time, which she had never repaid to him, but which she still owed.</p> <p>Trial in the Superior Court, without a jury, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that on May 23, 1891, while she was still mortgagee of record, the alleged trustee Sarah F. Heald brought an action of replevin for the piano, which was then, and still is, under said attachment, against the deputy sheriff who made the attachment, in which action judgment was rendered in favor of the principal defendant therein. The principal defendant in the present action was called as a witness by the plaintiff, and was the only witness, and testified as follows:</p> <p>“ Q. What relation are you to Sarah F. Heald ? A. I am her mother.</p> <p>“ Q. What relation to Frank H. Howe ? A. His sister.</p> <p>“ Q. Whether at this time, the 21st of May, you owned a piano that was in your house? A. The piano was not in my possession, it was in the house.</p> <p>“ Q. Did you own the piano on that day ? A. No, sir.</p> <p>“ Q. Did you ever own that piano? A. Yes.</p> <p>“ Q. When did you first own that piano ? A. Some four or five years ago.</p> <p>“ Q. How much did you pay for it? A. I paid four bum dred dollars.</p> <p>“ Q. Did you pay for it at once or in instalments ? A. Instalments.</p> <p>“ Q. Whether you had paid for that piano in full on the 21st of December, 1889 ? A. Yes.</p> <p>“ Q. Have you ever given a mortgage on that ? A. Not until I gave it to my daughter.</p> <p>“ Q. Sarah F. Heald ? A. Yes.</p> <p>“ Q. Do you know when you gave that mortgage ? A. I gave it at the time it is recorded on the city books. They will show.</p> <p>“ Q. Have you ever given another mortgage ? A. I have never given her any other mortgage.</p> <p>“ Q. To any one? A. Yes.</p> <p>“ Q. Do you know when you gave the second mortgage ? A. I don’t remember the date.</p> <p>“ Q. To whom did you give that? A. To my brother, Frank Howe.</p> <p>“ Q. What, if any, consideration was paid to you by Sarah F. Heald at the. time you gave the mortgage for four hundred dollars ? A. There was something — about one hundred and fifty dollars I think — exchanged hands.</p> <p>“ Q. Had she given you anything before that as a part consideration for this mortgage? A. She had worked for me a long while.</p> <p>“ Q- How long? A. I cannot give you the dates; a very long time.</p> <p>“ Q. Where was your daughter living at this time ? A. With me.</p> <p>“ Q. How long had she been living with you ? A. I cannot tell you the exact dates.</p> <p>“ Q. Cannot you give any idea how long your daughter was living with you prior to the time you gave this mortgage; had she been living six months with you ? A. Yes, longer than that.</p> <p>“ Q. During this time did she work for you ? A. Yes, sir; she did.</p> <p>“ Q- What, if anything, did you pay her ? A. Four dollars a week.</p> <p>“ Q. In addition to that she roomed there and boarded there at your home ? A. Yes.</p> <p>“ Q. Had she any other home at this time ? A. No, sir.</p> <p>“ Q. She was not living with her husband any during this time ? , A. No, sir.</p> <p>“ Q. That was all the money that passed at the time this mortgage was given, one hundred and fifty dollars ? A. Yes.</p> <p>“ Q. Since that time has she given you any money ? A. No, sir.</p> <p>“ Q. And she has continued to live with you since ? A. No, sir; she has travelled.</p> <p>“ Q. How long after did she continue to live with you ? A. Not very long.</p> <p>“ Q. You never paid back any part of it ? A. No, sir.</p> <p>“ Q. Whether you have sold that piano subject to this mortgage ? A. I have sold my interest in it.</p> <p>“ Q. When did you do that ? A. I don’t remember; some time before this affair came up.</p> <p>“ Q. To whom did you sell your interest ? A. I sold it to my daughter.</p> <p>“ Q. Mrs. Heald ? A. Yes.</p> <p>“ Q. Will you please state just what you did at that time ? A. I gave her a bill of sale of it.</p> <p>“ Q. Have Frank H. Howe and yourself and your daughter been present at any time when you three have had conversation about the matter of your selling your interest to your daughter ? A. I don’t remember.</p> <p>“ Q. Did n’t you testify, in the trial of that replevin suit, that you and your daughter and Mr. Howe talked this over, that you said to your daughter, ‘ I can’t pay this, and I might as well give it up to you,’ and Mr. Howe said,c All right ’ ? A. I think something of the kind was said, but I don’t remember.</p> <p>“ Q. That is to say, you said something of the sort at the other trial ? A. I think something of the kind was said.</p> <p>“ Q. At the time you gave the mortgage to Frank H. Howe, what consideration, if any, passed from him to you ? A. Seventy-five dollars.</p> <p>“ Q. In what ? A. In money.</p> <p>“ Q. Did you give him a note ? A. No, sir.</p> <p>“ Q. Did you give your daughter a note ? A. No, sir.</p> <p>“ Q. Has Mr. Howe ever paid you any part of this money ? A. Mr. Howe paid me money at the time.</p> <p>“ Q. Have you ever paid Mr. Howe any part of the money ? A. No, sir; I have not.</p> <p>“ Q. This money was all given to you at the time his mortgage was given ? A. Yes.</p> <p>“ Q. His mortgage was given before you had sold your interest in that piano to your daughter ? A. I don’t remember; of course it must have been.</p> <p>“ Q. You have no doubt this second mortgage was given before you sold your interest in that piano to your daughter ? A. No, sir.”</p> <p>On cross-examination, the witness testified as follows:</p> <p>“ Q. How much is due your daughter upon that mortgage which you gave her ? A. I could n’t tell exactly just how much. There must be considerable due.</p> <p>“ Q. Has any part of the four hundred dollars been paid by you to her ? A. No, sir.</p> <p>“ Q. How did you arrive at that figure four hundred ? You say your daughter gave you one hundred and fifty dollars in money; what did the other two hundred and fifty represent? A. It represents the balance of what I owed.</p> <p>“ Q. What did you owe her for ? A. For work.</p> <p>“ Q. You owed her two hundred and fifty dollars for work ? A. Yes, I owe her still.</p> <p>“ Q. Has any part of that four hundred dollars ever been paid to her by you ? A. No, sir.”</p> <p>On redirect examination, the witness testified as follows:</p> <p>“ Q. Let me ask you if it was not stated, at the time you gave that bill of sale to your daughter, that it cancelled your indebtedness to your daughter ? or did she not take that piano in payment ? A. I suppose it was.”</p> <p>The plaintiff asked the judge to rule, that, upon all the evidence in the case; there was not, at the time of the attachment, any valid existing mortgage upon the piano to either of the alleged trustees, or anything due them from the defendant upon either of the mortgages then of record.</p> <p>The judge refused to rule as requested, and found and ruled that the mortgages were valid subsisting mortgages at the time the attachment was made; that there was then due to Sarah F. Heald, upon the mortgage held by her, the sum of §150 and interest from the date of the mortgage; and that there was due to Frank H. Howe, at the time said attachment was made, the sum of §75 and interest from the date of the mortgage.</p> <p>The plaintiff alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on February 20, 1892, against August L. Larson, Margaret R. Maxwell, and Alexander Maxwell, and alleging the following facts.</p> <p>The defendant Larson, on and before December 8, 1891, was the owner in fee of certain real estate, situated on Elizabeth Street in Worcester, consisting of a lot of land and buildings thereon. Desiring to sell the premises, he placed the same in the hands of one Henry S. Bacon as his agent to sell and convey them for him; and Bacon, acting for Larson, executed an agreement in writing to sell and convey the real estate to the plaintiff, as follows: “ Worcester, December 8th, 1891. Received of Charles J. Johnson fifty dollars as forfeit money in case he fails to accept of a deed of land upon Elizabeth Street in Worcester from August L. Larson, for which he is to pay three hundred dollars cash down, and give said Larson his note at six months satisfactorily indorsed for two hundred dollars with interest; said deed is to be accepted subject to two mortgages on said estate, one for four thousand dollars and one for fifteen hundred dollars, which mortgages said Johnson is to assume and pay as a part of the consideration; if the deed is accepted the fifty dollars is to be accounted as a part of said three hundred dollars, said deed to be presented on or before January 1st, 1892, or the fifty dollars is to be refunded, interest to be paid by grantor to December 1, 1891, grantee to have benefit of income from December 1, 1891. Henry S. Bacon.”</p> <p>At the time of the execution of the agreement Larson had no real estate on Elizabeth Street in Worcester other than that above described. On January 1, 1892, and at all times prior thereto, and after the execution of the agreement, the plaintiff was ready and willing to accept a conveyance of the real estate, and pay the price therefor, in accordance with the terms and conditions of the agreement. Larson, on January 1, 1892, and at all times prior thereto, and after the execution of the agreement, refused to execute and deliver to the plaintiff a deed of the real estate in accordance with the terms of the agreement. On or about December 11, 1891, Larson, well knowing that his agent Bacon had executed the agreement to convey the real estate to the plaintiff, conveyed the same in fee to the defendant Margaret R. Maxwell, by deed duly recorded; and on or about January 25, 1892, made another conveyance of the premises to Margaret R. Maxwell for the purpose of correcting any errors in the first deed to her, which deed was duly recorded. At the time Margaret R. Maxwell accepted the deeds, she had full knowledge of the agreement made by Larson to convey the premises to the plaintiff.</p> <p>The prayer of the bill was, (1) that Larson might be ordered to convey the real estate in fee to the plaintiff, in accordance with the terms of the agreement; (2) that the title and interest of Margaret R. Maxwell, derived under either of the deeds to her from Larson, might be declared void; (3) that Margaret R. Maxwell might be ordered to convey to the plaintiff all her interest and title under said deeds, and that the defendant Alexander Maxwell might be ordered to release to the plaintiff all right of curtesy or other statutory rights in the real estate; (4) that Margaret R. Maxwell might be ordered to pay over to the plaintiff the income and rental value of said property, which she had received or might thereafter receive; (5) and that each of the defendants might be enjoined from making any conveyance or placing any encumbrance on the real estate, and for general relief.</p> <p>The defendants demurred separately to the bill, the defendant Larson assigning, among other causes of demurrer, that the agreement as to the part to be performed by him was an alternative agreement, and did not bind him to give a deed of"any land to the plaintiff; and that the plaintiff had a plain, adequate, and complete remedy at law. The other demurrers also set up want of equity. Hopkins, J., sustained the demurrers, and dismissed the bill; and the plaintiff appealed to this court.</p>

<p>Tort, in five counts, for fraudulent representations. The fifth count, which is the only one material to be stated, alleged, in substance, that on July 7, 1887, the defendant, in order to induce the plaintiff to subscribe for shares in and to become one of a syndicate of persons to purchase certain real estate situated in the county of Jackson and State of Missouri, called Grafton Place, falsely represented to the plaintiff that the defendant, together with one Voorhees and one Gregory, as copartners, had purchased said Grafton Place for the sum of $62,456, and that they held the real estate by a good and clear title, so that if the plaintiff should purchase an interest in the real estate by becoming one of the syndicate, nothing more would need to be paid by the plaintiff than his share of the taxes assessed on the real estate, and that everything about the real estate was “ straight and right,” and that the real estate was situated in Kansas City, in said county of Jackson; that in fact none of the copartners had paid said sum in good faith for the real estate, and the same was encumbered by a mortgage for the sum of $38,456, and the real estate was situated near the town of Independence, in said county of Jackson, at a distance of nine miles from Kansas City, all of which the defendant well knew; that the plaintiff, being ignorant of the existence of the mortgage, and of the price really paid by the copartners, or any of them, and of the situation of the real estate, and relying on and believing in the'representations of the defendant, was induced by means thereof to pay to the defendant for one share in the syndicate the sum of one thousand dollars; that on June 15, 1888, an assessment of $253.17 upon the share owned by the plaintiff was called for and demanded by the defendant for the purpose of paying the interest and a portion of the principal sum of the mortgages; that to induce the plaintiff to pay the assessment, and with intent to deceive the plaintiff, the defendant falsely represented to the plaintiff that the plaintiff was the only member of the syndicate who had not paid his assessment, and that the payment of the assessment was necessary to preserve the rights and interests of the plaintiff in the real estate from being taken under the mortgages, and that the real estate was situated in Kansas City; that in fact several members of the syndicate had not paid their assessments on their shares, and the real estate was not situated in Kansas City, all of which the defendant well knew; that the plaintiff, being ignorant of the fact whether the assessments had been paid or not by the other members of the syndicate, and also being ignorant of the situation of the real estate, and in order to protect the interests which he had acquired, by means of the misrepresentations of the defendant, from the mortgages, paid to the defendant the assessment of $253.17; and that by reason of the mortgages and the situation of the real estate the plaintiff’s interest in the real estate and his share in the syndicate were of no value, and he had wholly lost the sums of $1,000 and $253.17,- so paid by him. Answer, a general denial. Trial in the Superior Court, before Corcoran, J., who directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Complaint, to the Central District Court of Worcester, for unlawfully keeping for sale intoxicating liquors, with intent unlawfully to sell the same, on July 9, 1892, at Worcester. Trial in the Superior Court, on appeal, before Fessenden, J., who allowed a bill of exceptions, in substance as follows.

<p>Contract, for breach of the covenant of seisin in a deed of “ a certain tract of land situated in Albany City, county of Albany, State of New York.” Trial in the Superior Court, without a jury, before Braley, J., who found and ordered judgment for the defendant, and, at the request of the parties, reported the case for the determination of this court. The material facts appear in the opinion.</p>

<p>Civil Damage Act — Constitutional Law — Finding — Bond of Licensee — Effect of Misrecital — Mistake.</p> <p>Section 21 of the Pub. Sts. c. 100, rendering a licensed seller of intoxicating liquors liable for injuries occasioned by an intoxicated person whose intoxication was caused by him, is constitutional.</p> <p>A finding by a justice of the Superior Court, sitting without a jury, that the bond required by the' Pub. Sts. c. 100, § 13, to be given by a person licensed to sell intoxicating liquors was filed in the office of the clerk of the town issuing the license, and recorded by him, on the day when the license was issued, authorizes a finding that the town treasurer had approved the bond; and it also warrants the inference, in the absence of evidence to the contrary, that the delivery of the license and of the bond were substantially one transaction.</p> <p>A recital in a bond given under the Pub. Sts. c. 100, § 13, by a person licensed to sell intoxicating liquors by the selectmen of a town, that he had "been licensed ... by the mayor and aldermen of the town,” does not avoid the bond.</p> <p>If a town clerk, supposing that a bond given under the Pub. Sts. c. 100, § 13, by á person licensed to sell intoxicating liquors by the selectmen of the town, is invalid on account of a misrecital in it, requests a new bond of the licensee, who thereupon executes a second bond, and this court declares the first bond to be valid, the second bond will be held to have been executed under a mistake, and to be ineffectual to found an action upon.</p>

<p>Railroad Accident — Grade Crossing — Flagman — Evidence — Due Care — Negligence.</p> <p>In an action against a railroad corporation, under the Pub. Sts. c. 112, § 212, for • causing the death of the plaintiffs intestate at a crossing at grade of a highway in a town by the railroad, evidence that, twelve years before the accident, the defendant’s lessor, another railroad corporation, had, in compliance with an oral application of the selectmen of the town, maintained a flagman at the crossing, is properly excluded; and the fact that the defendant covenanted in the lease to use the railroad in accordance with the laws of the Commonwealth, and to maintain “the demised railroad properties,” which consisted of “ tenements, tracks, depot grounds, stations, superstructures, and fixtures,” in the same condition they were then in, does not enlarge the plaintiffs rights.</p> <p>In an action against a railroad corporation, under the Pub. Sts. c. 112, § 212, for causing the death of the plaintiffs intestate at a crossing at grade of a highway by the railroad, a record of the county commissioners, showing that the defendant’s lessor, seventeen years before the accident, had brought a petition against another railroad corporation for damages for taking a part of the petitioner’s land and occupying a part of its location, and reciting that the acts of the respondent would make the crossing so unsafe as to require the presence of a flagman, is rightly rejected.</p> <p>In an action against a railroad corporation, under the Pub. Sts. c. 112, § 212, for causing the death of the plaintiffs intestate at a crossing at grade of a highway by tile railroad, there was evidence that, after the defendant came into possession of the railroad under a lease, it continued to employ the same station agent, one C., who had been employed by the defendant's lessor; and that C. for some time afterwards continued to flag trains at the crossing. C. testified that he ceased to flag the trains a year and a half before the accident; and that he was not employed to flag tile trains, but did so because he deemed it for the defendant’s interests to do so. Other witnesses testified that they had seen C. flagging trains at the crossing within a short time before the accident, but they could not state any specific dates within seven months previously. Tiie plaintiff offered in evidence a statement made by C., immediately after the accident, explaining why he had not flagged the train. Tiie plaintiff also called C. as a witness, and offered to show by him that he stated after the accident that he did not flag the train because the section hands were at work near the crossing when tile accident occurred. This evidence was excluded. Held, that the plaintiff'had no ground of exception.</p> <p>In an action against a railroad corporation, under the Pub. Sts. c. 112, § 212, for causing the death of tile plaintiff’s intestate at a crossing at grade of a highway by the railroad, evidence that the intestate was about seventy-three years old and in good health, except that she was slightly lame, that she wore glasses because she was near-sighted, it not appearing that she could not see well with glasses, that she lived thirty rods from the crossing, and all the way from her house to the crossing the tracks of the railroad were visible in the direction from which the train came for a distance of a quarter of a mile, and that in the daytime she walked from her house on to the crossing, where she was struck and instantly killed, without looking to see if any train was coming, will warrant the presiding judge in ruling that there was no evidence of due care on her part, and in directing a verdict for the defendant.</p> <p>In an action against a railroad corporation, under the Pub. Sts. c. 112, § 212, for causing the death of tile plaintiff’s intestate at a crossing at grade of a highway by the railroad, it is immaterial that there was some evidence that the whistle on the engine was not blown before the accident at the usual place for blowing it, if it appears that the bell was rung.</p> <p>If it is customary for a railroad corporation to have a flagman at a crossing at grade of a highway by the railroad, and he is absent, this does not excuse a traveller on tile highway from looking to see if a train is coming before he attempts to cross the railroad tracks, when there is no obstacle to prevent his seeing.</p>

<p>Contract, for money had and received. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, in substance as follows.</p> <p>In 1889 one William Walker carried, and on previous occasions had carried, to the defendant bank, which was located at Webster, a number of instruments in writing indorsed in blank by the plaintiff and himself, a copy of one of which is as follows: “ $150. So. Woodstock, Ct., March 4,1889. Received of W. H. Walker, this day, one bay horse, Vinton horse, one express wagon, for which I promise to pay said Walker or order one hundred and fifty dollars, five months from date, at First Nat. Bank, Webster, with interest at per cent. Said property to be and remain the entire and absolute property of said Walker until paid in full by me. And I hereby agree not to sell or dispose of and to keep said property in good order and condition, as the same now is. And should said horse die before said sum is fully paid I hereby agree to pay all sums due thereon. And should said property be returned to or taken back by said Walker, I agree that all payments made thereon may be retained by said Walker for the use of said property. Charles H. Moore. Witness, I. L. Edmunds.” The amount of such instruments was about $4,400.</p> <p>Walker then supposed the instruments to be negotiable promissory notes, and the defendant, understanding and believing them to be negotiable promissory notes, discounted them for Walker, and credited the proceeds thereof to his account upon their books. The defendant in discounting them relied largely upon the strength of the plaintiff’s indorsement. There was no want of certainty on the part of either Walker, the defendant, or the plaintiff as to the actual contents of the several papers. The plaintiff, who lived in Thompson, Connecticut, about four miles from Webster, had indorsed the instruments at Walker’s request, and solely for his accommodation, supposing them to be promissory notes. He received no consideration for his indorsements. The plaintiff believed, at the time of his indorsements, that, if he had to pay the amount of the instruments, he could hold the property described therein as collateral security for the payment. The plaintiff indorsed these instruments understanding that it wras Walker’s purpose to raise money by obtaining their discount, and that it was to aid him in this that the indorsements were requested. He did not at first know where the discounts were to be obtained, but prior to January 1, 1889, he was informed by one of its directors • that the defendant bank was discounting for Walker notes with the plaintiff’s indorsement, and was asked by him for a statement as to his financial condition and the amount of his indorsements for Walker; and the plaintiff, in reply, stated his financial condition, and that he thought that he was then indorser for Walker to the amount of $2,200 or $2,300; and he also stated that he understood that lie was liable to pay in case Walker did not.</p> <p>In June, 1889, Walker disappeared, making no provision for the payment of his indebtedness to the defendant. The defendant caused the instruments, as they became due, to be protested, of which the plaintiff had notice. After Walker’s departure, the plaintiff deposited with the defendant bank $1,300, directing that it be applied to the payment of the instruments upon which he was indorser, as they should mature. Of the -money so deposited $1,061 was applied as directed. The plaintiff, desiring to obtain possession of certain of these instruments before they were due, went to the defendant bank and got three of his own notes discounted, and paid the proceeds thereof, and a certain small sum besides, amounting to $710.20, to the defendant, for an equal amount of these instruments not yet due, and the same were thereupon delivered to him by the defendant. At the time the plaintiff deposited the $1,300 with directions as above stated, and at the time he paid the $710.20 for the instruments not yet due, he still supposed them to be negotiable promissory notes, and that he was liable on them as indorser. Afterwards he was advised otherwise, and refused to pay any more of the instruments, whereupon the defendant bank brought suit against him on one of these instruments in Connecticut, which was decided in his favor. See First National Bank of Webster v. Alton, 60 Conn. 402.</p> <p>This action is brought to recover back the money so received by the bank, namely, the sums of $1,061 and $710.20, making in all the sum of $1,771.20; and it is agreed that the declaration may be taken as if it specified these two sums and the aggregate of them.</p>

<p>Eminent Domain—Waterworks — Statute — Damages — Evidence.</p> <p>The title of a statute is, in a legal sense, a part of the statute.</p> <p>The St. of 1818, c. 85, was entitled “ An act to incorporate the proprietors of mills on M. River, in B.,” the purpose of which was to make reserves of water in the ponds named in the statute by erecting dams “ to raise the water in said ponds as high as its original bounds, to lower the outlets of said ponds, and to ■ draw off such portions of said waters from any of said ponds, in such quantities and at such times as they, or a major part of them, or their special agent for that purpose, shall judge best for the interest of all concerned.” .The corporation and others brought petitions, under the St. of 1885, c. 217, § 4, for the assessment of damages resulting from the joint taking by the towns of A., B., and C., under the authority of that statute, of all the water of G. Pond, lying partly in the town of A. and partly in the town of C. It appeared at the trial, that the corporation owned a dam which held up and regulated the waters of G. Pond, and certain land and flowage rights used in connection therewith, at or near the border of the pond, which dam and land and flowage rights were taken by the respondents under the St. of 1885; that the corporation itself owned no mill and carried on no industry, and never issued any stock; that the other petitioners were owners of several mill sites below, on the M. River, which is the outlet of G. Pond to the sea; that all the petitioners, owners of mill sites on the stream below, with the exception of one, were members of the petitioner corporation; and that the corporation, for at least sixty years previously, had always drawn and let down the stored water for the best convenience of the mill-owners members thereof on the stream below. The respondents asked the judge to rule that, if any of the petitioners could recover against the respondents, it was the petitioner corporation alone; and that, if the petitioners, the mill-owners below, could recover for the loss of any of the water of the pond, it could only be for the overflow in .excess of the storage capacity, as fixed by the St. of 1818, and by the dam erected by virtue of that statute. The judge refused so to rule, and instructed the jury upon the rights of the petitioner corporation and of the mill-owners on the stream to recover damages in accordance with the rule laid down in Watuppa Reservoir v. Fall River, 134 Mass. 267. Held, that the respondents had no ground of exception.</p> <p>The St. of 1885, c. 217, authorized three towns named to take, singly or jointly, for the use of their inhabitants, the waters of a certain pond in two of the towns, and the waters which flowed into or from the same, together with any water rights connected therewith, and also all lands, rights of way, and easements necessary for holding and preserving such water; and, in § 4, provided that “ the said towns, or such of them as act jointly, shall jointly pay all damages sustained by any person or corporation in property by the joint taking of any land, right of way, water, water source, water right or easement, or by any other thing done by said towns, or such of them as act jointly, under the authority of this act.” Petitions were brought, under § 4, by a corporation which owned a dam that held up and regulated the waters of the pond, and certain land and flowage rights used in connection therewith, and by owners of several mill sites below on a river which was the outlet of the pond to the sea, for the assessment of damages resulting from the joint taking by the three towns of all the water of the pond. Held, that the judge rightly ruled that the corporation was entitled to recover the market value of its dam, land, and flowage rights which were taken, as property distinct from the right to use the water of the river, and that the mill-owners could recover for the injury to their estates in being deprived of the use of a part of the water of the stream by the taking by the respondents.</p> <p>At the trial of petitions by mill-owners on a river which was the outlet of a pond, for the assessment of damages resulting from the joint taking by certain-towns, under the authority of a statute, of all the water of the pond, the respondents offered to prove that a certain amount of the waters used by them in the exercise of the powers given them by the statute would necessarily be returned by percolation, after use, to the water-shed of the river below the pond, and become available to the mills for mill purposes, and that the amount so returned could be ascertained with reasonable accuracy, and offered to show what that amount would be. Held, that the evidence offered was rightly excluded.</p> <p>Allen, Knowlton, and Barker, JJ. dissenting.</p> <p>Certain towns, under the authority of a statute, took jointly, for the use of their inhabitants, the water of a great pond. A corporation which owned a dam, which was also taken, that held up and regulated the waters of the pond, and several mill-owners below on M. River, which was the outlet of the pond, all of whom except one S. were members of the corporation, brought petitions for the assessment of damages resulting from the taking of the water of the pond. At the trial, it appeared that S. was the riparian owner of a mill site on a branch of M. River called B. River, which, with another branch called F. River, formed a small island in M. River, just below the dam of A., who was one of the petitioners ; that A.’s dam extended across M. River at the fork where the two branches separated; that the wasteway of A.’s dam emptied into B. River, and the raceway into F. River, and the two branches came together below the privilege of S.; that S. had a mill-pond and mill on B. River, below the waste-way of A.’s dam, and actually used the water that flowed over the wasteway of this dam into B. River, but he used none of the water used by the A. privilege, as that emptied into F. River; that S. built his dam and mill in 1872, and A.’s mill and dam were erected prior to 1830; that whatever water A. customarily used, and was using at about the time of the taking, was not in excess of what he had been using without interruption for at least twenty years prior to the taking, and was at least as much as naturally flowed through F. River; and that S. owned no land on F. River, but that A. claimed title to land on both sides of F. River. The respondents asked the judge to rule that, upon the facts, S. “ only received the water he did receive by the sufferance of A., and was not entitled to recover in this action.” The judge refused so to rule, and instructed the jury, in substance, as follows: “ The A. dam, having been constructed upon this stream and equipped to use a certain amount of the water there, had the prior title, prior ownership, to the water thus appropriated. And as to that the mill-owner subsequently locating below, to wit, S., would have no claim. But as to the water of the stream not thus appropriated by A., S. became the prior occupant and has prior ownership, and A. could not afterwards raise his dam to the prejudice of S. as to what remained of that power. Now, in determining the value of the water privilege to S., you are to assume that the right of A. is limited to the dam as he has erected it, to the appropriation of the water as he has made it, and that S. is entitled to whatever remains, to have it come to his mill unobstructed.” Held, that the respondents had no ground of exception.</p>

<p>Estate of Deceased Person — Statute of Limitations — New Assets.</p> <p>A. made four promissory notes to B., who died, and whose husband and sole distributee, C., without taking out administration, indorsed the notes for value, without recourse, to D. Later, D. brought a bill in equity against the administrators of the estates of B. and C., and against A., upon which it was decreed that D. was the beneficial owner of the notes, except so far as they might be needed by the estate of Bi, and that A. should pay the notes to B.’s administrator. E. was appointed administrator of the estates of B. and C., and inventoried tile notes as part of the estate of B. A. then got fraudulently from D. a release of the notes and decree, giving D. his note for $600. Afterwards D. brought another bill in equity to have the release set aside, and to compel A. to receive back his $600 note. D. then died, and his executor became a party plaintiff in his place; and he also filed an inventory and included the $600 note in his schedule of assets. Upon that bill in equity, it was decreed that D.’s executor have leave to sue A. at law in the name of E., A. having the right to set up such defences as he had. Subsequently a suit was brought, judgment was obtained, and the amount of the execution was paid by A. to the attorney who appeared for E. on the record, but who in fact was employed hy D.’s executor. On the same day, which was more than two years after the appointment of D.’s executor, A. brought an action against him, and attached by trustee process the sum which he had thus previously paid to the attorney. To this action, the executor pleaded the special statute of limitations, Pub. Sts. c. 136, § 9. Held, that the action could not be maintained.</p>

Bill in equity, filed April 17, 1891, by the executors of and the trustees under the will of Edward S. Philbrick, against Arthur Mills, praying that a piece of land held by the testator in trust for himself and Mills be sold, and the proceeds applied as provided in the trust agreement. Hearing before Barker, J.. who entered a decree for the defendant, and reported the case for the determination of the full court. The facts appear in the opinion.

<p>Foreign Judgment— Corporation — Evidence—Agency—Service of Process — Statute of another State.</p> <p>A corporation organized under the Pub. Sts. c. 115, witli authority to transact the business of accident insurance, issued a policy to A., a citizen of Indiana, who was killed by accident, and a judgment in an action on the policy was recovered by the beneficiary in Indiana. The statutes of that State provided that process against a foreign corporation might be served upon certain officers named, or, in their absence, upon certain others, including its “ general or special agent ”; that “ if none of the aforesaid officers can be found, then upon any person authorized to transact business in the name of such corporation ”; and that, when a corporation had an office or agency in any county for the transaction of business, “ service upon any agent or clerk employed in the office or agency shall be sufficient service upon the principal ”; and further as follows : “ Any person who shall, directly or indirectly, receive or transmit money or other valuable thing to or for the use of such corporations, or who shall in any manner make, or cause to be made, any contract, or transact any business for or on account of any such foreign corporation, shall be deemed an agent of such corporation.” In an action against the corporation here upon the judgment, it appeared that the policy was delivered to A. in Indiana, in pursuance of an application made there by him; that other like transactions had been similarly entered into between the defendant and other persons in Indiana; that the defendant was in the habit of forwarding notices of assessments upon its Indiana members with the request to pay the same to B., whom it designated as local secretary in that State, and of receiving from him remittances of sums paid to him by members there upon such assessments, less his commission, as well as of transmitting through him communications relating to proofs of death; that he rendered accounts to the defendant every third month upon blanks which it furnished; that it acknowledged to him tlie receipt of the moneys which he remitted to it at the home office here; and that he had an office for the transaction of the defendant's business in the county where the action was brought, process in which was served upon him. Held, that the defendant liad no ground of exception to the admission of certain interrogatories in a deposition of B., in answer to which he testified that he was the defendant’s local secretary for Indiana, and recited the circumstances of his engagement as such by one C., representing himself as the defendant’s travelling agent. Held, also, that the following evidence, offered by the defendant, was properly excluded: 1. Evidence that the defendant never had, by virtue of any vote, any such officer as a local secretary'. 2. Evidence of the defendant’s secretary that no officer of the defendant, and no one in its home office, had written such a letter as B. testified that he received from the defendant, asking him to act as its agent for Indiana, and which he had mislaid or lost. 3. The defendant’s by-laws, which it offered for the purpose of proving that B. was not its authorized agent. Held, also, that, under the statutes above cited, B. was the defendant’s agent.</p> <p>A statute of another State, providing that service of process in an action there against a foreign corporation doing business therein may be made upon any agent or any person authorized to transact business in the name of the corporation in that State, is within the power of its Legislature to enact, and gives its courts jurisdiction of an action against such a corporation so served with process.</p>

<p>Poor Debtor — Recognizance — Jurisdiction of Magistrate.</p> <p>Under the Pub. Sts. c. 162, §§ 27, 31, as amended by the St. of 1888, e. 419, §§ 5, 7, a poor debtor’s recognizance, entered into before a special justice of a district' court, which does not appear by the record to have been taken by the justice when exercising the powers and duties of the court, is void.</p>

<p>Tort for personal injuries. Trial in the Superior Court, before Dewey, J., who, at the plaintiff’s request, reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff testified that he was born in Bavaria, and had been in this country about three and a half years, three years of which time he lived in Syracuse, New York, where he worked at his trade of shoemaking; that he left Syracuse on October 3, 1891, intending to go to Boston in search of employment at his trade, and arrived in Huntington the next day, which was Sunday; that in the afternoon of the same day, while at the defendant’s station in Huntington, a freight train of the defendant passed slowly by without stopping, going in the direction of Boston; that this train was composed of an engine and ordinary box or house cars and open coal cars, to the number of twenty or more in all; that, as the train passed, two tramps, whom he first met at the station, got upon the train, each taking a different car, and he then climbed upon one of the coal cars which had coal on it, and was back of the ones occupied by the tramps, and sat down on the coal, intending to be carried on his way to Boston; that in a few minutes afterwards both of the tramps walked back on the train and occupied the same car with him; that the next car behind the one on which he and the two tramps were riding was a box car, and in the rear of that were several more cars of the same kind belonging to the train ; that after riding between three and four miles, and when about one quarter of a mile westerly of the station at Russell, he heard some one towards the rear part of the train shout, “ Get off, fellows, or I will throw you off ”; that he looked- around, but saw no one; that, upon hearing the same order repeated, he looked around again, and found that it came from a brakeman on the train, whose name he had since learned was Walton, whom he then saw standing above him on the top of the adjoining box car, which was back of the car occupied by the plaintiff and the two tramps; and that the brakeman again repeated the order to get off, or he would throw them off, at the same time raising a club which he held in his hand, whereupon the two tramps immediately jumped off.</p> <p>The plaintiff further testified that be was afraid of the brakeman, and afraid to get off on account of the speed of the train, and remonstrated with the brakeman, and said to him, “ I can’t get off, the train go too fast for me, I am afraid,” and asked him to stop the train so he might get off; that the brakeman replied, “Never mind, get off or I will throw you off”; that the plaintiff again said he was afraid to get off, because the train was going too fast, and entreated him to stop the train and he would get right off; that the brakeman thereupon replied, “ I will throw you right off,” at the same time raising the club which he held in his hand, and making a move as if to come down upon the plaintiff, by putting one foot on the steps leading from the box car where he.was standing; and that thereupon the plaintiff attempted to alight from the car, and in so doing was thrown down and drawn under the wheels of the car, which crushed his right leg so that it became necessary to amputate it, which was done as soon as surgical aid could be summoned.</p> <p>The plaintiff, on cross-examination, testified that on his way from Syracuse he rode from Albany to Chester concealed in a freight car of another train of the defendant without paying his fare, through the connivance of another brakeman of the defendant ; that when he arrived at Chester he had two dollars and twenty-five cents in his pocket, and that he spent no money there; that he walked from Chester to Huntington on the railroad track; that, after leaving Huntington, the train stopped about one quarter of a mile westerly of Russell to let another train pass, so that the plaintiff might then have got off if he had desired, but he did not want to get off, and intended to ride clear through to Boston; that this stopping of the train occurred before he was ordered off; that the first time he was ordered to get off was just at the time when the train started; that he knew he had no right to ride on this train; and that he thought and believed that he was liable to be put in the lockup for it.</p> <p>It was in evidence that, when the plaintiff got off, the train was going from eight to ten miles an hour, down grade.</p> <p>It was admitted that Walton was a brakeman on the train in question at the time of the injury complained of; that his duties and powers were those of an ordinary freight brakeman; and that there was a conductor on the train, but his exact position on the train did not appear.</p> <p>After the plaintiff had rested his case, the defendant asked the judge to rule that the action could not be maintained. The judge so ruled; and directed the jury to return a verdict for the defendant. If the ruling was right, judgment was to be entered on the verdict; otherwise, the case was to stand for trial.</p>

<p>Tout, for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant town. At the trial, in the Superior Court, before Corcoran, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts, so far as material to the point decided, appear in the opinion.</p>

<p>Attachment of bulky Personal Properly — Statute — Officer — Levy — Abandonment.</p> <p>Iron lathes and planers in use in a factory, weighing from sixty-five hundred to eighty-two hundred pounds, except one weighing fifteen hundred pounds, attached by an officer whose return states that, by reason of its bulk, the property cannot be immediately removed, are within the Pub. Sts. c. 161, § 69; and the officer is not prohibited by the statute from leaving the attached property in the owner’s use.</p> <p>The fact that bulky personal property, which has been attached by an officer proceeding under the Pub. Sts. c. 161, § 69, is allowed to remain in the owner’s use for thirteen months before the levy of execution upon it, does not constitute an abandonment of the attachment.</p>

<p>Indictment, the first count of which, the other counts being of similar tenor, alleged that the defendant, at Taunton, on March 1, 1889, “ knowingly, falsely, and fraudulently did utter and publish as true a certain false, forged, and counterfeit paper writing, with intent then and there thereby to injure and defraud, he the said” defendant “then and there well knowing the said paper writing to be false, forged, and counterfeit, which false, forged, and counterfeit paper writing is of the tenor following.” Then followed an application for a policy of life insurance containing numerous questions and answers.</p> <p>In the Superior Court, before the jury were impanelled, the defendant moved to quash the indictment for the following reasons : “1. The allegations of the indictment set forth no offence described by the Public Statutes or the amendments thereof. 2. There is no offence described which is punishable at common law. 3. There is no offence described in the indictment.”</p> <p>Braley, J., overruled the motion; and the defendant appealed and excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Will — Evidence of Testamentary Capacity.</p> <p>Upon the trial of an issue whether a testator was of sound mind, a witness, who has observed a failing, mentally and physically, in the testator’s condition for twenty years, and has noticed a decided change for the worse in the last three years preceding the making of the will as compared with former years, but who was neither an attesting witness to the will, nor an attending physician, nor an expert in matters of mental condition, cannot be asked, “ Whether, from the general appearance of the testator, he considered him capable of making a contract, or of transacting important business ? ”</p>

<p>Oleomargarine and Butterine — Exposing for Sale without License — Statute — Complaint.</p> <p>Oleomargarine and butterine are “ provisions,” within the meaning of the Pub. Sts. c. 68, § 1; and a complaint on § 16, for going about carrying and exposing them for sale without a license, cannot be sustained.</p> <p>Where a bill of exceptions was inartificially drawn, this court construed it as intended to raise the question which the court decided.</p>

<p>Evidence — Conversation through Interpreter.</p> <p>Where two persons, who speak different languages, and who cannot understand each other, converse through an interpreter, a third person, who is present and hears the conversation, but who understands only one of the languages, may testify to it as he understands it, upon the trial of an indictment against one of the persons for committing an abortion upon the other, on the occasion of the conversation.</p> <p>The fact that a conversation was had through an interpreter affects the weight, but not the competency, of it as evidence.</p>

<p>Joint Action by Legatees — Amendment of Declaration — Discretion of Presiding Judge.</p> <p>A gift, after the death of the widow of the testator, of the residue of an estate in five shares to certain legatees named, is not a joint gift, and the legatees on the death of the widow, cannot bring a joint action for the conversion of the estate.</p> <p>Where the residue of an estate is given to the widow of the testator for life, and, after her death, in five shares to certain legatees named, a suit for a conversion of the estate after the deatli of the widow should be brought by the administrator de bonis non with the will annexed, the executors having deceased, and not by the legatees.</p> <p>If a demurrer to a declaration in an action brought by a legatee for the conversion of property belonging to the estate of his testator is sustained, it is within the discretion of the court to refuse to allow the name of the administrator to be substituted for that of the plaintiff; and to the exercise of this discretion no exception lies.</p>

<p>Personal Injuries — Ultra Vires — Negligence of Railroad—Grade Crossing.</p> <p>In an action against a railroad company for personal injuries, it appeared that the tracks of the A. Railroad, the B. Railroad, and the C. Railroad crossed a street at grade, that gates were operated by a gateman, and that they were the only gates on the whole crossing and were used when any train passed on any of the roads. The plaintiff was struck by a moving train on the tracks of the C. railroad, and the negligence of the gateman in raising the gate before the passage of the train was the negligence relied upon by the plaintiff to sustain his action. The gateman was employed by the A. company, which company the plaintiff sued. There was no express contract between the companies as to the gateman, and no implied contract, unless one arose from the fact that the A. company employed the gateman and paid him, and the other companies repaid the A. company five eighths of his wages. Held, that the presiding justice erred in directing a verdict for the defendant on the ground that the action should have been brought against the 0. company.</p>

<p>Altering Ballot — Evidence — Statute.</p> <p>At the trial of an indictment on the St. of 1890, c. 423, § 181, for altering a ballot cast at an annual State election, the ballot, which has not been destroyed by the town clerk, pursuant to § 101, but has been preserved and produced, with the other ballots of the precinct, under an order of the Superior Court, before the grand jury which found the indictment, is admissible in evidence.</p>

<p> Complaint for having Oleomargarine with Intent to sell illegally. </p> <p>On a complaint under the St. of 1886, c. 317, § 1, charging the defendant with having in his possession, with intent to sell, oleomargarine in a tub not marked as required by that section, the exceptions recited that the tub “ was not, on the date of the offence alleged in the complaint, exposed for sale, nor was it so situated that it could be seen by customers of the defendant,” and that it also appeared “ that the defendant had bought said package for the purpose and with the intention of selling the said oleomargarine contained therein at retail in said store, but that he did not intend to sell the oleomargarine contained in this tub, or expose the same for sale until the marks had been examined, and, if not marked in accordance with law, to mark the tub before opening the same.” Held, that these facts showed that the defendant had no intention of selling the oleomargarine in the form in which it was, but was storing it with the intention of properly marking the package, if it was not already properly marked, before he offered the oleomargarine for sale or intended to sell it, and that the jury were not warranted in finding the defendant guilty.</p> <p>Because of the absolute prohibition against selling intoxicating liquor without a license, the intent to sell may be often inferred from facts which would not warrant the inference of an intent to sell other merchandise in the form in which it was found, when the person having it in his possession had a right to sell it if it was properly marked, and had the right to so mark it after receiving it, and before he exposed it for sale or intended to sell it.</p>

<p>Complaint, under the St. of 1886, c. 317, § 1, charging the defendants with having in their possession, with intent to sell, oleomargarine in a tub not marked as required by that section.</p> <p>In the Superior Court, on appeal, before the jury were impanelled, the defendant renewed a motion, made by him in the district court, to quash the complaint “ because it does not appear by said complaint that the complainant therein is a person authorized by law to institute the same.” Braley, J. overruled the motion, and the defendant excepted.</p> <p>It appeared from the evidence that the defendants, who were copartners, had a license from the United States government to sell oleomargarine at retail, in quantities not exceeding ten pounds; that an inspector of the State Board of Health went down into the cellar of the defendants’ place of business, and directed a clerk of the defendants to give him a sample of oleomargarine from the tub in question, which he did, the piece being about a quarter of a pound; that this tub contained about sixty pounds of oleomargarine, was in the original package as received from the manufacturers, fastened in the usual manner by tin strips nailed to the cover and sides, and had never been opened before; that there were also eight or ten other sixty-pound tubs of oleomargarine also stored in the same place, on top of each other, which had never been opened; that the tub in question was legally marked on the top and sides, but had no mark on the bottom; that it further appeared that the defendants had never sold any oleomargarine from the cellar, but it was always brought, a tub at a time as needed, from the cellar to the store above, and the packages opened and sold at retail from a butter case or refrigerator, and that no sales were ever made from a tub unless it was properly marked and stamped; that if a tub was found to be unstamped or unlettered according to law, the tub was stamped or lettered before any sales were made therefrom ; that the defendants had purchased the said packages of oleomargarine and stored them in said cellar for the purpose and with the intention of selling them at retail as above described, but that they did not intend to sell this oleomargarine or expose the same for sale until the law had been fully complied with. No question was made that the defendants complied with all legal requirements as to notices, wrappers, etc.</p> <p>The judge declined to rule, as the defendants requested, that there was not sufficient evidence to convict, and ruled, as matter of law, that there was sufficient evidence to sustain a conviction.</p> <p>The jury returned a verdict of guilty; and the defendants alleged exceptions.</p>

<p> Agreement to pay Third Party from whom no Consideration moves. </p> <p>In case of an agreement between two parties, upon sufficient consideration, that one will pay, out of funds in his hands belonging to the other, a specific sum to a third person who is not a party to the agreement, and from whom no consideration moves, no action lies in favor of such third party to recover the money of the party holding it. In the case in question, the third party did not claim that he could recover the sum, if it was not specific.</p> <p>In case of an agreement, upon sufficient consideration, that one of the parties, A., will pay out of funds belonging to the other, B., a specific sum to a third person, C., who is not a party to the agreement between A. and B., and from whom no consideration moves, evidence is inadmissible, in bar of an action by C. to recover the money of A., that, a day or so after the time of the first payment under the agreement between A. and B., B. abandoned and broke his contract, and A. was obliged to complete the contract at a loss; and that, at the time of refusing, to pay C., he, C., was told by A. that B. had broken his contract, and that on a certain date, after refusal by A. to pay C., C. commenced an action against B. to recover the claim in suit.</p>

Writ oe entry, to recover an undivided fourth part of an estate in fee in “ a dwelling-house, . . . also the land under and adjoining the same,” as devised by the will of Edward C. Austin of Nantucket. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the tenant, to this court, on appeal, on agreed facts, in substance as follows.

Indictment for adultery, averring that on September 18,1892, the defendants at Haverhill “ did commit the crime of adultery, by then and there having carnal knowledge of the bodies of each other.” At the trial in the Superior Court, before Fessenden, J., the defendants requested the judge to instruct the jury that in order to convict they must find that the act of sexual intercourse was completed by emission.

<p>Bastardy Process — Appearance — Evidence.</p> <p>In bastardy cases, the proceedings in the lower court are merely to compel the appearance of the defendant in the Superior Court, and where in that court a supplemental complaint is filed, it is too late, after an appearance has been filed, to object either to irregularities in the lower court or to the jurisdiction of such court.</p> <p>A bill of exceptions stated that a written general appearance for the defendant had been entered upon the docket of the Superior Court by its clerk, at the oral request of one of the counsel for the defendant, before the motion to dismiss the complaint, which was under the Pub. Sts. c. 85, was made, the defendant not having filed a general appearance in writing. Held, that the entry was a sufficient “ appearance in writing,” within the St. of 1885, c. 384, § 7.</p> <p>There was nothing in the testimony in a bastardy case which would warrant a finding that the brother of the complainant acted as her agent in making the complaint. The inference was that he procured the complaint, and induced her to go to court and sign it. Held, -that evidence of what was said by the brother of the complainant at a certain interview with the witness, which evidence was offered in connection with what the complainant testified in relation to her brother’s making the complaint, was rightly excluded.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by a carding machine while in the defendants’ employ. Trial in the Superior Court, before Fessenden, J., who, after the plaintiff had put in his evidence, directed a verdict for the defendants; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Petition in Equity — Conspiracy — Equity Jurisdiction — Statute.</p> <p>The remedy in case of a conspiracy which constitutes a misdemeanor at common law is by indictment.</p> <p>A petition set forth that the petitioners, employees of a mill corporation, left work upon the refusal of their demand for higher wages; that the treasurer and superintendent of the corporation sent the names of the petitioners to the officers of other corporations in the same city on a list called a black list, which informed the officers that the petitioners had left the mill on a strike; and that thereupon the treasurer and superintendent conspired together and with the officers of other mills, and agreed not to employ the petitioners, with intent to compel them either to go without work in the city, or to go back to work for the mill corporation at such wages as that corporation should see fit to pay them. It did not appear by the petition that any of the petitioners had existing contracts for labor with which the treasurer and superintendent interfered. The prayer was that the respondents, the treasurer and superintendent, be restrained from annoying the petitioners and interfering with their rights to earn their livelihood at their trade, and that they be enjoined to withdraw and destroy all black lists or other devices issued by them or their orders mentioning the names of the petitioners. Held, that, if the injury constituted a cause of action, the remedy was by an action of tort to be brought by each petitioner separately. Held, also, that the only grievance alleged continuing in its nature was the conspiracy not to employ the petitioners, and that there were no approved precedents in equity for enjoining the defendants from continuing such a conspiracy, or for compelling the defendants either to employ the petitioners or to procure employment for them with other persons.</p> <p>Equity has, in general, no jurisdiction to restrain the commission of crime, or to assess damages for torts already committed. Courts of equity often protect property from threatened injury when the rights of property are equitable, or when, although the rights are legal, the civil and criminal remedies at common law are not adequate. In the case in hand, however, the rights which the petitioners alleged the defendants were violating were personal rights, as distinguished from rights of property.</p> <p>If this court were of opinion that a suit in equity did not lose its essential characteristics when brought as an action of contract or of tort, under the St. of 1853, c. 371, it seems manifest that an action at law, brought under the St. of 1887, c. 383, by bill or petition with a subpoena, instead of by an original writ, does not lose the essential characteristics of an action at law.</p> <p>The intention of the St. of 1887, c. 383, is that each proceeding under it must be treated either as an action at law or as a suit in equity, with the incidents which, by established practice, or by other statutes, attach to the particular action or suit, and that the pleadings and procedure must conform to this view. The provision in § 3, that the court may issue “ any writs, orders, injunctions, or other processes necessary, at any stage of the proceedings, ” adds little or nothing to the powers of the courts under other statutes.</p>

Tort, for personal injuries occasioned to the plaintiff, in attempting to cross Temple Street in Newburyport, the easterly end of which street entered, but did not cross, Federal Street at about a right angle. At the trial in the Superior Court, before Bond, J., the plaintiff requested a ruling that, upon the whole evidence, the plaintiff was not entitled to recover.

<p>Diversion of Water from a Well — Easement — Deed — Percolation.</p> <p>In a quitclaim deed by A. to B. of land on which was a dwelling-house then occupied by B., this clause immediately followed the description : “ together with the privilege of drawing water from a pipe laid in the ground from a well on my adjoining land to said Davis house as now used.” There was no covenant of warranty against the demands of all claiming through A., who, at the time of the execution in 1878, was the owner of one parcel of thirty acres, of which the premises conveyed were a part. B.’s lot was on the northerly side of a public street, and a private way was afterwards laid out adjoining the land in the rear. The dwelling-house was about one hundred and fifty feet from the well, on lower ground, and was supplied with water from the well by a pipe by gravitation. In 1890, C. took from A. a warranty deed of a lot on the private way opposite B.’s, but east of the well. The westerly line of C.’s land was about fifteen feet from the east side of the well, and no portion of the pipe or well was on his land. The ground at the mouth of the well was about six feet higher than the surface of C.’s land. On June, 1891, C. constructed by excavation on his land a reservoir, the southerly side laid up in brick and the northerly in stone, the bottom of which was a foot lower than the bottom of the well. This reservoir, which was about twenty feet from the well, was used to supply water to C.’s factory on other premises by a four-inch pipe until November, 1891, when C. discontinued its use. B.’s house' was supplied with water from the well, until September, 1891, when B. connected the house with the public aqueduct. In an action brought by B. against C. for diversion of water from the well, the evidence tended to show merely that water which would have percolated into the well save for the construction of the reservoir was, in consequence of its construction and use, caused to percolate into it, and so cut off from the well. B. did not contend that he had an action unless C. took his land charged, by the operation of B.’s prior deed from the same grantor, with an easement in favor of B.’s land. Held, that the language of the clause in question in the deed from A. to B. was satisfied by holding that it gave the plaintiff the right to draw water whenever that portion -of land designated as the well, remaining intact as a structure adapted to receive and hold such water as might percolate into it, contained water which would gravitate to the house through the pipe; and that the finding by the Superior Court for the defendant was rightly ordered.</p>

<p>Statute — Written Signature.</p> <p>When a wife gives notice under Pub. Sts. c. 100, § 25, requesting a person not to sell liquor to her husband, it is not necessary that the notice shall be signed in her own proper handwriting. It is enough if her name is signed for her by another person in her presence and by her request, she knowing and understanding the contents and object of the notice.</p> <p>The provisions of the Pub. Sts. c. 3, § 3, cl. 25, that, “ when the written signature of a person is required by law, it shall always be the proper handwriting of such person, or, in case he is unable to write, his proper mark,” are intended to require a signature in the proper handwriting of a person only in those cases where, by express language, or by usage, or by implication arising from the nature of the document to be signed, a written signature is required by law, as the direct personal act of the person whose name is to be signed.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by being thrown off a car propelled by electricity, belonging to and operated by the defendant, by reason of a worn and defective switch in the defendant’s track. At the trial in the Superior Court, before Aldrich, J., the plaintiff testified that he was riding as a passenger, standing on the right-hand side of the front platform smoking and talking with another passenger; that while he did not know or seek to learn while on the car whether there were vacant seats inside the car in which he could have sat down had he chosen to do so, he testified that, from recollection, he presumed there were; that the car when approaching and almost upon the switch in question was going slowly, at the rate of two or three miles an hour, from its own momentum; that he saw the motorman look down over the dasher to the left and then straighten up and let on some power; that immediately the car jolted and lurched to the left; that the motorman swayed to the right, and then the car jumped forward with great violence, the whole electric power having been pulled on by the motorman, and the plaintiff, together with the other passenger on the front platform, the conductor and the motorman were instantly thrown off, the car running off the track and into the side of a car-house with great force.</p> <p>The plaintiff could not say, nor was there any evidence tending to show, whether he was holding on to any part of the car either before or at the time of the accident, or whether, when the car came in contact with the switch in question and jolted or lurched to the left, he held on, or tried to hold on, to any part of the car, or made any effort to save himself from falling or to break the force of the fall.</p> <p>There was evidence tending to show that there were vacant seats inside the car, and that before the accident the conductor notified the plaintiff and other passengers that there was room inside where they could be seated.</p> <p>The material portions of the judge’s instructions to the jury weré as follows:</p> <p>“ The full court has decided that if a passenger voluntarily and unnecessarily rides on the platform of a steam car, and there gets hurt, he cannot recover, because the very fact that he undertakes to ride on the platform when the car is in motion, instead of riding on a seat within the car, when he might do so, is held to be an act of carelessness on his part which will prevent him from recovering damages for an injury sustained by him while so riding on the platform.</p> <p>“ But the same court has also decided that it is not necessarily negligent for a passenger to ride on the platform of a horse car in motion. ... In the first case, the court says, as mattllfcb. law, the passenger would be careless; but in the second case, the court leaves it to the jury to say whether the passenger riding on the platform of a horse car is or is not careless. And it is for the jury to determine whether a passenger so riding upon the platform of a horse car was in the exercise of proper care. The reason for this distinction is undoubtedly this: the steam car is propelled or driven by-a great force, the tremendous power of steam, and is or may be driven at a very high rate of speed, and the danger attending the employment of great power, great forces, and moving at great speed, is greater than when the vehicle in which we are riding is drawn or propelled by horse power at a less speed. . . .</p> <p>“ The car in this case was propelled by electricity. If a car propelled by electricity is driven by a force which is as uncontrollable and as powerful as steam, and this car may be driven by electricity at the rate of twenty miles an hour through your streets, as in some instances in some places these cars are, it is to be said the danger does not arise from the mere fact of the employment of steam, . . . but because steam is a power of great force and energy, and drives or draws the car at great speed, and you can’t control it as readily as you can a horse you have in hand. ... If electricity employed in propelling these street cars is a force that may drive the car at a speed equal to that of the steam car, as the motion of the steam car ordinarily is, there would be attending the employment of this force, or this element, the same dangers that might attend the employment of steam; and whether you drive your car by electricity at a high speed, or by steam at a high speed, would n’t make the difference between danger and safety; but it is the fact of the force, and the rapidity with which the car or vehicle is driven. . . . Whether a man standing upon the platform of a street car propelled by electricity is to be held to be as guilty of a want of due care as when he stands upon the platform of a car driven by steam, is a question which I am not going to decide in this case, but which I shall leave to you. . . . Would a prudent man, — would a man using ordinary prudence and care, taking care of himself, and seeing a seat on the inside of the car where he may sit and be secure, —• would he still stand upon the front platform of a car)|tiven by electricity? If standing upon the platform as above described would be an act of carelessness, or a failure to exercise such a degree of care as men of ordinary prudence would exercise under the same circumstances, and the plaintiff was thereby hurt, he cannot recover in this case, because that would be contributory negligence on his part. ... If you find there was no defective or worn-out switch, which is the only ground upon which the plaintiff seeks to maintain this action, you will have no occasion to deal with the other questions in the case. But if you find there was a defective and worn-out switch, then, in passing upon the question as to whether the plaintiff was in the exercise of due care in standing upon the platform at the time and as he did, you will remember the car was moved by electricity and that the defendant was a passenger carrier, bound to provide suitable conveyance. ... If the passenger carrier in this case, the defendant, had provided seats within its car where all its passengers could be seated, must it still be held responsible for the safety of a passenger who insists voluntarily and unnecessarily in standing upon the platform outside of the car, driven as this car was by electricity?</p> <p>“ In considering the question of due care, you will inquire not only whether it was due care for the plaintiff to stand as he did under the circumstances disclosed by the evidence, but also whether, when the car came in contact with the switch, the plaintiff then used what means were in his power, and what a prudent man would have used, to secure himself from falling, or to break the fall.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions to that portion of the instructions relating to the law of the due care required of a passenger on electric street cars.</p>

<p>Contract for goods sold and delivered, according to account annexed, by several bills, each on four months’ credit. The writ was dated October 22,1889, at which time items from the account from No. 1 to 10, both inclusive, as amended by items Nos. 20 and 21, were more than four months old, and overdue under the terms of the sale.</p> <p>Said items amounted to........$3,064.85</p> <p>There were credits as follows: —</p> <p>1889, Sept. 7, By cash......$500</p> <p>“ 27, “ “ ...... 1,000 1,500.00</p> <p>Balance.............$1,564.85</p> <p>The bills presented by items .Nos. 11 to 18 inclusive of said account annexed were not due according to the four months’ credit given on each. Said items amounted to $1,965.18.</p> <p>The defendant admitted his liability for the balance of $1564.85, but denied his liability for the sum of $1,965.18, on the ground that the action was prematurely brought as to the same.</p> <p>At the trial in the Superior Court, before Blodgett, J., there was evidence tending to show that on September 27, 1889, when the defendant paid the one thousand dollars he admitted the account of the plaintiffs; that on October 4, 1889, he owed about fifteen thousand dollars to merchandise creditors; that he knew he was insolvent and that his entire assets did not exceed ten thousand dollars; that he thereupon formed a corporation with a capital stock of ten thousand dollars, consisting of his entire assets; and that he owned the entire capital stock, which he contemporaneously transferred to another as security for debts amounting to about nine thousand dollars. It was admitted that the sale of the defendant’s individual business to the corporation was for the purpose of securing creditors, and the plaintiff offered to show that on or about October 18, and on October 22, the defendant admitted the sale to the corporation ; that he owed about sixteen thousand dollars for merchandise, of which the plaintiff’s claim was a part; that he knew he was insolvent at the time, and that the creditors preferred as above knew it; that he intended to prefer and secure them; and that he then (October 18 and October 22) had no property with which to pay the plaintiffs.</p> <p>The plaintiffs asked the judge to rule that the action for the whole balance of the account could be maintained :</p> <p>“ 1. Because the defendant, knowing himself insolvent, had made a fraudulent conveyance of his property to and for the benefit of parties knowing him to be insolvent, with the intent to defraud the plaintiffs, and devest himself of any property applicable to their said claim.</p> <p>“ 2. That by reason of said fraudulent conveyance the whole of the plaintiff’s account became at once due and payable, regardless of the terms of credit on which the goods were sold.</p> <p>“ 3. That the defendant’s conduct prior to and on September 27, 1889, in failing to pay any of said four months’ bills when due, in admitting the account of the plaintiffs, stated and shown September 27, 1889, as the amount he owed said plaintiffs, and in then paying $1,000 on account thereof,'—that these acts were an admission that the whole amount was then due, and a waiver that any part thereof was not due on October 22, 1889.</p> <p>“4. That the defendant’s admission on October 22, 1889, before the writ was brought, that he owed about $16,000, of which the plaintiff’s claim, as in suit, was a part, was a waiver of any right to claim that any part thereof was not then due.”</p> <p>The judge declined so to rule, and ruled that the plaintiffs could maintain their action for the bills therein, which were due according to the original terms of sale, viz. $1,564.85, but not for the four months’ bills which had not in time matured at the date of the writ, viz. $1,965.18: and the plaintiff alleged exceptions.</p>

<p>Contract, against the administrators of the estate of Oakes S. Soule. The declaration contained several counts, one of which was upon an account annexed, containing three items, each for one year’s salary, beginning March 1, 1888, amounting in all to $3,150, and interest to March 19, 1890, amounting to $497.88, and also containing a large number of items of credit; and another count was upon a promissory note for $2,000, dated February 27, 1871, payable in one year to the plaintiff or his order, with interest at seven and three tenths per cent per annum, payable semiannually, signed by the defendants’ intestate, and secured by a mortgage of real estate. The answer contained a general denial, and alleged payment.</p> <p>Trial in the Superior Court, without a jury, before Dunbar, J., who, at the request of the parties, reported the case for the determination of this court, in substance as follows.</p> <p>The report of an auditor, to whom the case had been referred, was put in evidence, the material portions of which are as follows: “ The plaintiff worked for his brother, O. S. Soule (the defendants’ intestate), for a yearly salary. In their dealings on this subject of salary of the plaintiff, the brother used a small account-book of the plaintiff’s, and for a number of years prior to 1888 in this book the plaintiff entered items of charges against himself to the credit of his employer, and at some time each year the book was given by the plaintiff to O. S. Soule to examine, and settlements, when made, were made to March 1st. In 1887 they had a final settlement to March 1, 1887. Within a few weeks after March 24, 1888, the plaintiff handed his brother the plaintiff’s account-book, containing memoranda of accounts of money or goods received by the plaintiff, or retained by him from money collected for his brother since the last settlement. O. S. Soule retained the book in his possession for a few weeks, a,nd less than a month, and then the plaintiff took it from the office and saw from the book that O. S. Soule had entered $750 as the salary of the plaintiff for the year March 1, 1887, to March 1, 1888. I state the salary account for three years, as follows, charging the plaintiff with the amount which in the declaration he admits having received.” Then followed an itemized account, showing the amount due on account of salary to be $740, which included interest on the balance due at the end of the first and third years to the date of the writ, and also interest allowed to the defendants on an overpayment to the plaintiff during the second year.</p> <p>“ The next item of the plaintiff’s declaration is a note for two thousand dollars. The defendant claimed that the note was paid January 15, 1890, when the mortgage given to secure this note was discharged by the plaintiff. I do not find any payment on this note, except as admitted in the declaration, and find to be due on this note: Principal, $2,000; interest from February 27, 1872, to March 19, 1891, $2,782.76.</p> <p>“ The note for $2,000 declared on by the plaintiff was secured by a mortgage, and on January 15, 1890, the mortgage was discharged by a discharge in ordinary form, under seal, which stated that the mortgagee acknowledged that he had received from the mortgagor named in the mortgage ‘full payment and satisfaction of the same.’ The plaintiff’s counsel asked the plaintiff to ‘ state what was said in reference to a discharge of mortgage, the first time it was mentioned,’ and counsel said he offered this to show that the note was not paid, and was retained by the plaintiff, with the consent of O. S. Soule. The defendants objected to evidence to contradict the language of the discharge. I admitted the question, and plaintiff answered, ‘ January 1, 1890, O. S. Soule said to me, “I am going to give a deed of the lumber yard, and when I do, I want you to sign a discharge, and as quick as I have given deed I shall settle up with you.” I said I would do it.’ The plaintiff’s counsel asked the plaintiff whether any part of the note had been paid, which question was objected to by the defendants, on account of the discharge; but I admitted the question. The plaintiff’s counsel asked the plaintiff to state a conversation between himself and O. S. Soule, on the 16th of January, relating to the settlement of the note, and the defendants objected. I admitted the evidence.”</p> <p>The auditor’s report and the discharge of the mortgage were all the evidence introduced at the trial. Upon the evidence, the defendants requested the judge to rule that the plaintiff could not recover for interest upon any of the items in the account annexed, prior to the date of the writ, and that the plaintiff could not recover upon the count on the promissory note.</p> <p>The judge ruled that the items of interest contained in the auditor’s report upon the items in the account annexed, and upon the credit items, could not be recovered in this action on this evidence; and that the plaintiff could recover, upon the count on the note, the amount reported by the auditor. If the plaintiff could recover the items of interest and upon the note, judgment was to be entered on the auditor’s report. If the plaintiff could not recover the items of interest, and could recover upon the note, judgment was to be entered on the auditor’s report, excluding such items of interest on the items of the account annexed as were allowed the plaintiff and defendants respectively by the auditor.</p>

<p>Registering Bets and Selling Pools — Joint Liability of Participants.</p> <p>At the trial of a complaint on the St. of 1885, c. 342, against A., B., C., D., E., and F., for being present in certain rooms occupied with apparatus and devices for the purpose of registering bets and of buying and selling pools, and engaged in the business of registering bets and selling pools upon horse races, it appeared that'the rooms in question were occupied for the purpose of registering bets and selling pools ; that there were a hundred or more people there; that A. was at the door keeping watch, and occasionally turning some one away; that B. sold tickets, and C. paid the bets; and that D., in the next room, received througli a telegraph instrument news as to the progress of the races, and informed E. and F., who wrote it upon a blackboard for the information of those present. Held, that the judge rightly refused to rule that there was no evidence in the case from which the jury could find any one of the defendants guilty.</p>

<p>Assaulting attaching Officer— Title to Personal Property — Justification.</p> <p>It is no justification for an assault upon an officer, while removing goods which he had attached on a writ against A., upon whose premises they were, that the defendant was acting for B., who had bought tile goods previously at a sale upon an execution in his favor against A., but whose title had never been completed by a delivery and possession of the goods, he allowing A. to retain them until the attachment.</p>

<p>Complaint, alleging that the defendant, on April 26, 1892, at Boston, sold to Edward Kelly a certain quantity of milk containing less than thirteen per cent of milk solids.</p> <p>At the trial in the Superior Court, before Blodgett, J., the following facts appeared.</p> <p>The defendant was the proprietor of a restaurant in Boston where milk was kept for sale. On April 26, 1892, Edward Kelly, who was employed by the inspector of milk as a collector of samples, entered the restaurant for the purpose of obtaining a sample of milk for inspection, being at that time engaged in his regular duty of obtaining samples for the inspector’s office. He presented himself at one of the tables in the restaurant, and called for a glass of milk, for which he paid five cents. He took a portion of the milk from the glass to the office of the inspector, which upon analysis proved to be below the legal standard. The person of whom the sample was obtained did not know that a sample had been taken for inspection. Kelly appeared in the restaurant as an ordinary customer of the place, and did not inform the defendant of the fact that he was a collector of samples in pursuit of his employment, and that he had obtained a sample for collection.</p> <p>The defendant requested the judge to instruct the jury as follows: “ If the person who obtained the sample for inspection was a duly authorized collector of samples, and entered the restaurant of the defendant in the regular pursuit of his employment as collector for the purpose of obtaining a sample for inspection, it was his duty, when obtaining the sample to give the person of whom it was taken an opportunity to ask for a sealed sample of the same, and, if he failed to do so, the defendant cannot be convicted ”; which instruction the judge refused to give.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Indictment for subornation of perjury. In the Superior Court, the defendant moved to quash the indictment for the following reasons: “ 1. Because no crime or offence is fully, plainly, substantially, and formally described or set out therein. 2. Because it sets out no crime or offence against the laws of the land or the statutes of this Commonwealth. 3. Because it is insufficient and bad in law on the face of it. 4.

<p>Writ of entry, dated July 21, 1890, to recover a parcel of land in Southampton. Plea, nul disseisin. After the former decision, reported 154 Mass. 429, the case was tried in the Superior Court, before Dewey, J. The jury returned a verdict for the demandant; and the tenant alleged exceptions, which appear in the opinion.</p>

<p>Insolvent Debtor — Right of Assignee to sue Debtor for Property assigned but - not delivered.</p> <p>An assignee in insolvency cannot maintain an action of contract against the insolvent debtor for property included in the assignment which the debtor neglects or refuses to turn over as required by law.</p>

<p>Complaint to the First District Court of Bristol, alleging that the defendant, on October 2, 1891, at Taunton, was drunk by the voluntary use of intoxicating liquor.</p> <p>At the trial in the Superior Court, on appeal, before Bond, J., Edwin H. Evans, the city marshal of Taunton, was called as a witness, and testified, without objection, that the defendant had been convicted of drunkenness in February and March of the current year prior to the present complaint.</p> <p>The defendant asked the judge to rule that he could not be sentenced under the St. of 1891, c. 427, which ruling the judge declined to give; and the défendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant moved in arrest of judgment, for the following reasons; “1. From the record it appears that there is no punishable offence alleged. 2. Under the St. of 1891, c. 427, this court has no power to impose a sentence for the first offence of drunkenness. 3. The St. of 1891 is in violation of the Bill of Rights incorporated in the Constitution of Massachusetts.”</p> <p>This motion was overruled; and the defendant appealed to this court.</p>

<p>Tort. The declaration was as follows: “ And the plaintiff says that he was seised in fee of a certain large tract of land situated in Attleborough, in the county of Bristol, and at large expense he platted said land into house lots, and laid out and set off a way or street, called Foley Street, thirty feet in width, by which street all of said house lots were bounded, and to which street all of said house lots were adjacent; that thereafterwards this plaintiff made sale of one of said house lots to this defendant, by a deed wherein the land so sold to the defendant is described as bounded by said street; that the plaintiff has made sale to divers persons of certain house lots so bounded on said Foley Street, and has for a long time offered for sale the house lots so platted and bounded by said Foley Street, as is well known to this defendant, and this plaintiff now holds the larger portion of said lots in fee, but subject to sale as opportunity may offer. That said Foley Street extends along all of said house lots to the public highway in said Attleborough, and is the only way of access therefrom to said highway. That the said defendant McCarthy, well knowing of the intention of this plaintiff to sell said house lots, and intending to injure this plaintiff and hinder the sale of said lots, has entered upon said Foley Street, and has taken sole and exclusive possession of said Foley Street, and has erected fences thereon, and has enclosed said Foley Street to his own private use, and has excluded the plaintiff therefrom, and has dug up and subverted soil thereof, whereby the plaintiff has been deprived of the use and benefit of his lands, his lands have been greatly depreciated in value, the sale thereof has been greatly hindered, and this plaintiff has been put to great expense, loss, and damage.”</p> <p>Trial in the Superior Court, without a jury, before Braley, J., who found for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Breach of Promise of Marriage — Evidence.</p> <p>In an action for breach of a promise of marriage, evidence that, before the plaintiff’s acquaintance with the defendant, she “ had had an intimacy with several different men,” is rightly excluded, although evidence of the plaintiff’s reputation for unchastity is admitted.</p>

<p>Petition for partition of three parcels of land in Lawrence. The case was submitted to the Superior Court, and, after judgment for the respondents, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>Assault and Battery — Witness— Trial.</p> <p>At the trial of an indictment for an assault and battery upon A., it appeared that A. and the defendant had an altercation, which was followed by blows; and the defendant contended that he acted in self-defence. B., who was present at the altercation, testified for the defendant, that he had started to go away, when, hearing blows, he turned round and saw A. with a cane uplifted over the defendant, who thereupon struck A. Upon cross-examination, B. denied that he had so testified, and stated that no blows were struck until he had turned round and saw A. with his cane uplifted; whereupon the defendant’s counsel sought to re-examine B. upon this point. The district attorney objected to the re-examination; and the judge then said to the defendant’s counsel, “ If there is any matter about which the witness has not been inquired of, you may reexamine as to such matter, but I shall not permit a re-examination merely because a witness has made a statement in his direct examination which he has denied on his cross-examination, and in such examination has appeared badly, for the purpose of removing the effect of such appearance.” The defendant’s counsel disclaimed any such purpose, and excepted to the remark of the judge-characterizing the witness as having appeared badly. The judge then stated to the counsel that it was not intended to characterize the appearance of the witness, but to call the attention of the counsel to the limit of are-examination; and that, for the purpose of limiting the re-examination, it was for the court to consider the appearance and statement of the witness, and the question asked on re-examination. Full instructions were given to the jury upon all parts of the case. Held, that the defendant had no ground of exception.</p>

Indictment, in two counts. The first count, which is the only one material to be stated, alleged, in substance, that the defendant, on December 18, 1891, at Fall River, with intent to cheat and defraud David Hollingworth, and to induce Hollingworth to deliver to him certain goods, wares, and merchandise, unlawfully, knowingly, and designedly falsely pretended and represented to Hollingworth that he was then the proprietor and keeper of a shop which was then being carried on…

<p>Easement — Deed — Reservation — Exception — Estoppel — Implied Grant —• Secondary Easement — Prescription — Lost Grant.</p> <p>In 1833, A., B., and C. conveyed to a railroad corporation a strip of land sixty-six rods long and forty feet wide, bounded easterly and westerly by other land of the grantee, and northerly and southerly by lands of the grantors. Following the description were the words, “as now staked out by the engineer of said corporation, and partly graded for a railroad, reserving to ourselves the right of a passageway over said railroad, which passageway is to be constructed and kept in repair by ourselves.” Then followed an habendum in fee, with full covenants of warranty and seisin. The land thus conveyed Was a portion of a tract of about twenty acres, which fronted on a certain street in a city, and ran back southerly therefrom. The effect of the conveyance was to cut the land of the grantors in two parts, leaving the southerly part without access to a public way. The last survivor of the grantors died in 1867. The railroad corporation did not file its location until 1835, and there was no existing way across the land when the deed was executed. Held, that the right of way was a reservation only for the lives of the grantors and of the last survivor, and not an exception.</p> <p>In an action against a railroad corporation for the obstruction of an alleged right of way over tile railroad, it appeared that, in 1833, the owners of a portion of a tract of land known as the T. land conveyed a strip of the land to the corporation, reserving to themselves a right of way over the railroad, which terminated in 1867 by the death of the last survivor of the grantors. In 1840, P., who owned in fee all the T. land except so much as had been conveyed by the deed of 1833, conveyed to the corporation a strip of land fifteen feet in width, and extending across his land. This strip adjoined the land of the corporation, and was on the south side of it. This deed made no reference to any right of way. In 1845, P. conveyed to the corporation a strip of land on the north side of the railroad, apparently of the same width as that conveyed by the deed of 1840. This deed contained the following clause: “ Reserving also to myself and my representatives forever the right of passage to and from the crossings heretofore secured to us and those holding under us over said railroad. It being understood that I herein relinquish all claims for damage of whatever kind against said corporation, their successors and assigns, prior to this date.” There was no evidence that P. was living when the acts of obstruction complained of were done. Held, that the word “ crossings ” in the deed of 1845 was evidently a clerical error for “ crossing,” which was undoubtedly the crossing reserved in the deed of 1833; that the word “ heirs ” being omitted, a reservation in fee was not created; and that, if the plaintiff had P.’s rights, these .rights would cease on P.’s death, and the burden of proof was on the plaintiff to show that P. was living.</p> <p>To work an estoppel, a statement must be particular, clear, and unambiguous.</p> <p>The owners of a portion of a tract of land known as the T. land, which fronted on W. Street in a certain city, conveyed, in 1833, a strip of the land to a railroad corporation, reserving to themselves a right of way over the railroad, which terminated in 1867 by the death of the last survivor of the grantors. In 1873, the corporation filed a new location, taking a narrow strip of land lying adjacent to and southerly of a strip conveyed to the corporation by one P. in 1840. A. was then the owner of the strip taken, and also of land lying southerly of it, the whole being part of the T. land. In 1874, A. conveyed the strip so taken to the corporation by a deed containing the following words, after the description of the land conveyed : “ Reserving to myself and my heirs and assigns a right of way across the tract of land hereby conveyed to the crossing heretofore secured to me over the said railroad to W, Street.” Held, in an action by A. against the corporation for the obstruction of the alleged right of way over the railroad, that the corporation was not estopped by the acceptance of the deed to deny A.'s right to cross the railroad; and that A. had not such right of way by implied grant.</p> <p>A reservation, in a deed of a strip of land to a railroad corporation, of a right of way, over the strip conveyed, does not give the grantor a right of way over the railroad as a necessary incident or secondary easement.</p> <p>A recital in a deed can be relied upon only in an action upon the deed between the parties to it.</p> <p>In an action against a railroad corporation for the obstruction of an alleged right of way over the railroad, it appeared that the owners of a portion of a tract of land known as the T. land, which fronted on W. Street in a certain city, and ran back southerly therefrom, conveyed, in 1833, a strip of the land to the corporation, reserving to themselves a right of way over the railroad, which they agreed to keep in repair, and which terminated in 1867 by the death of the last survivor of the grantors. From and after the date of that deed, the grantors and their assigns used, during the lives of the grantors, under the reservation in the deed, a farm-crossing over the railroad, and over so much of the original T. land as lay between the railroad and W. Street, to and from W. Street. In 1866, when the plaintiff bought a portion of the T. land, he found planking between the tracks, and gates in the fences on both sides of the railroad. These gates existed at least as late as 1869. The plaintiff, from the date of the deed to him until the planking was removed by the corporation in 1883, used the crossing adversely and under a claim of right, for the purpose of carting dressing on to his land from W. Street, and carting hay from it to W. Street. During the period of his occupancy, there had been no buildings on his land, and the land had been used only as grass land. He did nothing in the way of maintaining the planking, and there was no evidence that the corporation did anything towards it. There had been " no planking there since 1883. In 1886, the corporation built, and it has since maintained, a fence along the northerly line of its roadway; and since 1883 there has been no provision for the passage of vehicles across the rails and sleepers of the railroad. Held, that the plaintiff had not a right of way over the railroad by prescription.</p> <p>Where the origin of an easement is known, a lost grant is not to be presumed.</p>

<p>Dower — Assignment after Twenty Years from Husband’s Death — Statute — Bar.</p> <p>Under the Pub. Sts. c. 124, § 13, a widow, who for more than twenty years after her husband's death has occupied, with his heirs, land of which he died seised, and of which she was dowable, or has without their objection received the rents and profits of such land, may, without being barred by § 14, bring a petition for the assignment of her dower, whenever the heirs seek to hold their shares of the rents and profits in severalty.</p>

<p>Divorce — Practice — Evidence — Bona Fide Marriage by Libellant before Decree Nisi is made Absolute — Right to have Decree made Absolute after-wards — Finding of Good Faith.</p> <p>Rule 5 of the rules of the Superior Court for the regulation of practice in divorce is as follows: “ At any time before the expiration of six months from the granting of a decree of divorce nisi, the libellee, or any other person, may file, in the office of the clerk for the county in which the libel is pending, a statement of objections to an absolute decree; such statement to set forth the facts on which it is founded, verified by affidavit.” Section 6 of the St. of 1887, c. 332, giving the Superior Court original jurisdiction of causes of divorce, provides that such court “ shall establish all necessary rules to regulate the practice under this act.” Held, that it is within the power of a single justice in a divorce case, where a cause arises, after the six months, which may influence his decision in refusing to make a decree absolute, to admit evidence thereof.</p> <p>A libellant in a libel for divorce, who has obtained a decree nisi, and who, after waiting the time required by law, believing and having reasonable ground to believe that he has obtained a decree absolute, and being guilty of no negligence, marries again and cohabits with the person he has married, is entitled nevertheless, to have the decree nisi made absolute.</p> <p>A woman obtained a decree nisi in divorce proceedings in this Commonwealth. Before the expiration of six months, while living in another State, she wrote to her attorney in the divorce proceedings to have the papers of her divorce sent to her at once, and asking if it was necessary for her to appear personally to have the divorce granted; and in the same month she received a reply from her attorney stating that the six months would not expire until the next month, that he would then attend to having the decree made absolute, and that it would not be necessary for her to appear personally. The attorney was prevented from attending to the matter by reason of illness. The libellant, supposing that her attorney had attended to the matter, and that her divorce had been made absolute, after the six months had expired, without doing anything more as to her divorce, married again in the other State, in good faith, believing that she had a legal right so to do, and lived with the man whom she had married until she learned that the divorce had not been made absolute, and that the marriage was not valid. Held, that these facts would warrant a finding that the libellant was not guilty of negligence; and that she honestly believed and had reason to believe in the existence of a fact which, if true, would have made her remarriage lawful.</p>

<p>Contract upon a poor debtor’s recognizance, entered into under the Pub. Sts. c. 162, § 28, by Isaac L. Rice as principal, and by the defendant as surety. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>Examination of Juror — Statute — Discretion of Presiding Justice — Argument to Jury — Return of Jury for Instructions.</p> <p>Under the Pub. Sts. c. 170, § 35, the examination of jurors as to interest or bias beyond the inquiries provided for expressly by the statute, was left to the discretion of the presiding judge, which discretion is not taken away by the St. of 1887, c. 149, providing that the examination may be made by the parties or their attorneys under the direction of court; and the discretion is exercised, wisely by not going beyond the usual questions unless something appears which makes it proper to go further.</p> <p>The district attorney said to the jury in his argument in a criminal case, “ The grand jury ask you to find the defendant guilty.” The counsel for the defendant asked the judge to stop the district attorney, but the judge refused. It did not appear that the district attorney pressed the argument further after he was interrupted. Held, that as, so far as it appeared, the jury at the proper time were instructed to disregard such an argument, or were given some other instructions embracing that instruction and equally favorable to the defendant, the mere failure to stop the district attorney was not a ground for a new trial.</p> <p>After the jury had had a criminal case under consideration for several hours they came into court. The judge asked the foreman if they desired further instructions, and the foreman said, “ This man here [pointing with his finger to a juryman near him] would like to have further instructions.” The juryman asked a question, which the judge answered, and the latter then read to the jury the instructions given in the case of Commonwealth v. Tuey, 8 Cush. 1,2. The defendant requested the judge to direct a mistrial on account of the action of the foreman; but the judge declined so to do. Held, that the defendant had no ground of exception.</p>

<p>Indictment for keeping and maintaining a common nuisance, to wit, a tenement in Freetown, used for the illegal sale and keeping of intoxicating liquors from June 1, 1891, to August 1, 1891.</p> <p>At the trial in the Superior Court, before Bond, J., the Commonwealth called William T. Pierce as a witness, who testified that on Sunday, July 5,1891, he bought of the defendant, at his store in Freetown, a bottle of lager beer. Counsel for the Commonwealth then asked him if he had ever seen any intoxicating liquor about the premises, or if he had ever seen the defendant receiving or carrying any at his store in Freetown. The witness answered that he had not. Counsel for the Commonwealth then asked the witness whether or not this morning on the cars coming over from Fall River, in conversation with one Marvel, he did not say to him, that during the month of July he frequently saw Tripp coming out of his house with a tray and glasses of lager beer, carrying them to the other side of the street. This question was objected to because, as counsel for the defendant stated to the court, the district attorney had asked Marvel, who sat near him within the bar, in a tone sufficiently loud for the jury to hear, “ When did he tell you and where ? ” and that Marvel had replied in as loud a tone, “ On the cars this morning.” The court allowed the question to be answered, and the defendant duly excepted thereto. The witness then answered, “ I do not remember saying so. I don’t think I said any such thing as that.” The district attorney then asked the following question • “ Did you say to Marvel, this morning on the cars, that you saw him go across from the house carrying bottles ? ” The witness answered, “ I never saw him carrying them across the street. I might have seen him carrying out bottles and putting them in his team. I cannot say what kind. I was so far off I could not see. I should think cases of lager beer bottles. I have seen him carrying them away two or three times, two or three cases at a time. I have seen him carrying them away three or four times.” The defendant objected to the counsel for the Commonwealth questioning Marvel and to Marvel’s reply in the manner above described, that it was irregular and improper in the conduct of the trial, and also objected to the question asked the witness Pierce, claiming that the whole proceeding was irregular and improper, and asked to have the whole matter stricken out. The court overruled the objection. The Commonwealth did not call Marvel to contradict Pierce. The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Indictment — Plea in Abatement — Bias of Grand Juror.</p> <p>A plea in abatement to an indictment will not be sustained on the ground that one of the grand jurors by whom it was found, being otherwise competent and qualified to serve, had before the meeting of the grand jury made a personal investigation into the guilt of the accused, and had secreted himself in a room with an officer for the purpose of listening to declarations and admissions made by the accused concerning the crime, and had heard such declarations and admissions, and had listened to statements of officers to the effect that the accused was guilty, and had thereupon formed an opinion and believed him to be guilty before and at the time of the investigation of the case by the grand jury.</p>

<p>Abortion — Evidence — Allegations of Indictment.</p> <p>Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular or even an illegal manner.</p> <p>It is not necessary to the maintenance of an indictment under the Pub. Sts. c. 207, § 9, for an attempt to procure the miscarriage of a woman, to aver that the woman was in fact pregnant, or that the defendant knew, believed, supposed, or suspected that she was pregnant.</p>

<p>Writ of Entry — Evidence of Title in the Tenant by Adverse Possession — Finding of Justice.</p> <p>On a writ of entry, in which the demandant claimed that the tenant had disseised him of a tract of land, there was evidence against the demandant that a fence had been maintained along the side of the demanded premises since 1863 for keeping out cattle, that the land had been planted for several years at about that date, that it had been let to one or more tenants, and that during this whole period there was nothing to show any inference or assertion of title on the part of the demandant or his predecessors till after the building of a house on a part of the land in question in 1887. Held, that as all the evidence against the demandant was to be taken at the strongest, the court could not say that there was no evidence of title in the tenant by adverse possession sufficient- to be considered and weighed.</p> <p>The evidence necessary to prove adverse possession varies with the character of the land.</p> <p>On a writ of entry it was held that the finding of the justice who had the advantage of seeing the witnesses must stand.</p>

<p>Lien for Repairs on a Vessel — Statute — Jurisdiction.</p> <p>A petition was brought under the Pub. Sts. c. 192, § 17, to enforce a lien given by § 14 of the same chapter, for repairs furnished a tug-boat in her home port. A motion to dismiss for want of jurisdiction was allowed by the Superior Court. Held, that that court had a right to exercise the jurisdiction which the statute purported to confer upon it. Morton & Knowlton, JJ. dissenting.</p>

Tort for personal injuries occasioned to the plaintiff by reason of the alleged want of a railing at the side of a highway in the defendant city. At the trial in the Superior Court, before Bishop, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

<p>Estate of Deceased Person —Administrator as Creditor — Accounting.</p> <p>The fact that an administrator or an executor is a creditor of the estate which he represents does not prevent him from recovering the amount of his claim. The proper method for him in such a case is to credit himself with the amount in his account. If his claim is disputed, the mode of procedure is provided for by the Pub. Sts. c. 136, §§ 6, 7.</p> <p>If .a deposit in a savings bank in the name of an intestate is partly of the money claimed by the administrator, he may treat the whole as assets of the estate, and recover as a creditor, in the manner pointed out in the statutes, the amount due him.</p>

<p>Personal Injuries — Dangerous Machine — Instructions to Servant — Evidence.</p> <p>In an action for personal injuries against a mill corporation, it appeared in evidence that during the interval between his arrival in this country and the date of the accident the plaintiff had become familiar with the use of machinery; that he was thirty-two years old when injured, and at the trial about a year thereafter spoke English so as to testify without an interpreter, and was of ordinary intelligence ; that the machine on which he was working was simple in construction and operation, and neither out of repair nor wanting in any appliance; that he was set to work with a fellow servant who was running it, and helped him start it; that the fellow servant went away, saying nothing to the plaintiff, who supposed the man would return, though he did not know, and while attempting .to operate the machine as he had seen his fellow servant operate it he was injured. Held, that neither the defendant nor any of its superintendents were negligent in not warning or instructing him concerning it.</p> <p>In an action for personal injuries sustained by an employee in a mill, evidence of declarations made by the overseer in charge of the room in which the plaintiff worked immediately after the accident, and while the plaintiff was lying on the floor after being removed from the machine, in the nature of admissions of negligence on the part of the overseer in relation to the accident, is inadmissible.</p>

<p>Action to recover Tax on Personalty — Domicil — Declarations as a Part of the Res Gestee.</p> <p>To acquire a domicil there must be a residence in a place, and an intention to make that place one’s home.</p> <p>Declarations of a person accompanying a change of his abiding place have always been held competent to explain the change as a part of the res gesteebut declarations in such cases are often admissible on a broader ground than as a part of the act of removing from one place to another. The intention of the person removing is competent to be proved as an independent fact, and anything which tends to show' his intention in making the change may be introduced if it is free from objection in other particulars. The intention may be inferred from acts and conduct, and conduct which tends to show the intention is competent for that purpose. Declarations which indicate the state of mind of the declarant naturally have a legitimate tendency to show intention.</p> <p>When one has changed his place of abode, and the question arises whether he intended to change his domicil, all his acts and conduct which fairly indicate his purpose in that particular within a reasonable time before and after the event may be put in evidence, together with the declarations accompanying such acts.</p>

<p>Contract— Written Order— Oral Instructions as to charging Merchandise — Election hy Plaintiffs.</p> <p>In an action for the price of merchandise sold for the use of an electric light company, the judge found as a fact that the contract was made by the defendant. The.testimony was that the defendant gave a written order, signed by him in such . a way as to charge him on its face, and orally instructed the plaintiffs to charge the goods to the company. The company was incorporated when the order was given, but no capital had been paid in. The defendant and another person built the whole electric line with their own funds, keeping the account in which the plaintiff’s debt appeared among others in their own books, and afterwards received substantially all the stock of the company in payment for it. JEM, that whether or not the form of the order was enough, without more, to warrant the finding, supposing the company to have been the principal, in view of the charge to the company upon the plaintiffs’ books, the judge was warranted in finding that the real principal as well as the mouthpiece of the transaction was the , defendant, so that although he used the name of the corporation in such a way as to bind it to the plaintiffs at their election, still, when they had discovered the facts, they had the right to recover of him.</p>

<p>Contract, upon a promissory note for $12,500, dated June 18, 1886, and made "payable four months thereafter to the order of the defendant, and by him indorsed. Trial in the Superior Court, without a jury, before Braley, J., who found for the plaintiff for the full amount of the note with interest; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Indictment, charging the defendant with an assault with a dangerous weapon, in Fall River, in and upon one Mary A. Powers. At the trial in the Superior Court, before Bond, J., there was evidence tending to show that the defendant, having been annoyed on the night of July 21,1891, by different persons ringing his door-bell and insulting him when he came to the door, went out of the house into the street and fired a pistol, the. bullet from which struck one Mary A. Powers, who was standing at the corner of two streets about two hundred and sixteen feet distant; that it was quite dark at the time; that both streets were in a thickly settled portion of the city, and that there were liable to be people on both streets and passing the corner at the time when the shooting took place. The defendant, who was under the influence of liquor at the time of the shooting, admitted that he fired the revolver, and stated that when he did so he looked up and down the street to see if there were any persons on the street; that he did not see any, and that he fired the revolver, pointing it towards the ground to let the persons who had been annoying and insulting him know that he had a pistol, in the belief that they would keep away from his house and not further molest him, and that he did not see Mary A. Powers, and that he did not intend to shoot her, or any other person; and the Commonwealth admitted that he did not intend to shoot her.</p> <p>The defendant requested the judge to instruct the jury that “ the fact that the firing of the pistol by the defendant was an unlawful act, or that it was in violation of the city ordinances, did not make it an act wrong in itself and done with evil intent, and did not render the defendant criminally liable for the result of the shooting.” The judge gave this instruction, adding that it was a circumstance which the jury had a right to consider on the question of the conduct of the defendant. The judge also instructed the jury, that it was not necessary for the government to prove that the defendant intended to shoot Mary A. Powers, or any person, but that if they found that the defendant discharged the revolver in a grossly careless and negligent manner, or in a wanton and reckless manner, and by so doing wounded Mary A. Powers, he was guilty of the charge in the indictment.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Complaint for selling intoxicating liquor to a minor. At the trial in the Superior Court, before Thompson, J., the jury returned a verdict of guilty, and the defendant alleged exceptions, the material portion of which appears in the opinion.</p>

Tort, for assault and battery. The defendant pleaded justification as a duly qualified police officer, and recited in his answer “ that the plaintiff was arrested by the defendant on October 10, 1890, for being intoxicated and committing a breach of the peace in a public place, . . . and the plaintiff, having been arrested by the defendant as aforesaid, assaulted the defendant with a weapon dangerous to life.” The arrest was without a warrant.

<p>This was an action of tort. Trial in the Superior Court, before Fessenden, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff introduced evidence tending to show that he was a police officer of Boston ; that three or four weeks prior to the time when he received the injuries hereinafter mentioned, the defendant, who was a livery stable keeper, furnished for hire to the city of Boston a horse to be used by the mounted patrolmen of Boston; that the horse was examined and tried at the defendant’s stable by one of the mounted police officers of Boston, and selected by him and taken for use by the city of Boston; that for several weeks thereafter the horse was ridden by this officer, who testified at the trial that the horse was free from all faults and in every way suitable for the purpose for which it was hired; that the plaintiff, acting in the due discharge of his duty, mounted the horse and rode it toward the defendant’s stable; that while the plaintiff was so riding the horse, and while he was in the exercise of due care, the horse became restive and uncontrollable, shook its head, bolted, and ran violently upon a sidewalk, threw the plaintiff and fell upon him, breaking the plaintiff’s leg, and otherwise injuring him; that the plaintiff had had experience in riding and managing horses before the injury; that the horse had been ridden by other patrolmen, and had not shown any symptoms of viciousness or bad habits, or defects in any way; that there was a scar in the mouth of the horse, which scar “ looked as if caused by a cut.” There was no further evidence concerning the scar. The plaintiff testified, on cross-examination, that he thought the horse at the time of the accident must have had a fit, or blind staggers, or something of that kind.</p> <p>The report further recited, that, “ at the close of the plaintiff’s evidence, the defendant requested me to rule that on all the evidence the plaintiff could not recover. In reply to a question put by me, the counsel for the plaintiff stated that there was no evidence upon which it could be found by the jury that the defendant, prior to the accident, knew, or by the exercise of reasonable care or diligence could have known or discovered that the horse was as described in the declaration. The plaintiff claimed, and requested me to rule, that the defendant was bound to furnish a suitable horse, and that, if the horse at the time of the accident was unmanageable and unsuitable, the defendant was liable to the plaintiff in the action, without regard to the defendant’s knowledge or negligence ; qnd that, it appearing that the horse was unmanageable at the time of the accident, a prima facie case was made out as to the negligence of the defendant. I declined to rule as requested by the plaintiff, and ruled that, upon all the evidence, the plaintiff could not recover. At my direction, the jury returned a verdict for the defendant. If the foregoing ruling and direction were correct, judgment is to be entered on the verdict; otherwise, the verdict is to be set aside, and a new trial granted.”</p>

<p>Decision of School Committee—Rights of Pupils — Revision by Court.</p> <p>The decision of the school committee of a city or town, acting in good faith in the management of the schools upon matters of fact directly affecting the good order and discipline of the schools, is final so far as it relates to the rights of pupils to enjoy the privileges of the school, and is not subject to a revision by a court.</p>

<p>Personal Injuries — Due Care — Negligence.</p> <p>In an action for personal injuries it appeared that the plaintiff was directed by the defendant, his employer, to go upon the roof of the defendant’s barn and make certain repairs; that, to enable him to get there, the defendant placed one ladder against the eaves and then drew a second on to the roof and fastened the bottom of the second to the top of the first with a rope; that the plaintiff went up and worked on the roof; and that, when he started to come down, the rope fastening the upper ladder came untied, the ladder fell, and the plaintiff fell with it. The jury returned a verdict for the plaintiff. Held, that, upon the evidence, the court could not say that the case was not a proper one to submit to the jury.</p>

<p>Trustee Process — Money received from Sale of Real Estate as Administrator — Contingencies.</p> <p>The plaintiff sought to charge a trustee for money received from a sale of real estate as administrator to pay debts of the intestate. The process was served after the Probate Court had granted the license to sell, but before the sale. While the administrator had obtained a license to sell the whole of the real estate, the court assumed, under the trustee’s answer, that the form of the license was to sell under the statute the “ whole of the estate, or of such part thereof as may appear to be most for the interest of all concerned.” Held, that the trustee was rightly discharged, because, if the administrator should decide to sell only enough to pay the debts, the remainder would descend to the heirs, and would not be affected by the trustee process; while, if the heirs should advance money to pay the debts rather than to have their real estate sold, no sale would be likely to be made.</p>

<p>Malicious Prosecution— Trustee Process — Amendment — Discretion of Court.</p> <p>An action of tort for malicious prosecution cannot be commenced by trustee process.</p> <p>If it is in the power of the Superior Court to allow an amendment of the writ in an action for malicious prosecution commenced by trustee process, the principal defendant having answered generally and without objection until after the plaintiff’s evidence has been introduced, it is within the discretion of the court to refuse to allow such amendment, and to the exercise of such discretion no exception lies.</p>

<p>Highway Defect — Liability of Town for Negligence of Superintendent of Waterworks ■—• Evidence.</p> <p>In an action for injuries occasioned to the plaintiff’s horse and wagon by a defect in a high way in the defendant town, it appeared that the accident occurred on a steep incline in the way, where a trench had been dug six months previously for the purpose of laying a water-pipe to supply the people living on that street with water from the town’s waterworks. There was evidence that the trench was four and a half to five feet deep, and a great deal of water came into it from the sides or bottom, so that to lay the pipe the workmen were obliged to dam up the trench to hold tile water in different sections while laying pipe below, and when the pipe was laid in the section below they were accustomed to take away the dam and let down the water, and afterwards fill up the trench by throwing earth into the water, and in some portions treading it down; that they could not tread down some portions of it, owing to the water and the soft condition of the filling in the trench; that there was a soft spot, when they dug the trench, near the place of the accident; that the loam and soft material which came out of that spot were thrown back upon the water in the trench ; and that the workmen did not tread that down through fear of going in themselves. The superintendent of the waterworks, who had charge of laying the pipe, and who visited the place once or twice a day, denied that there was such a soft spot as testified to by other witnesses ; but said that, if there was such a spot, filling in with loam would not make a safe job, and that a proper way to do the work would be to remove the loam and put in gravel. It appeared that the weather was dark and stormy at the time of the accident, and there had been a steady fall of rain for the two preceding days; that the plaintiff’s horse suddenly sank into the road bed, going in up to his crupper, with his nigh forward foot resting on solid ground on the opposite side of the ditch; and that the nigh side of the wagon also sank into the ditch, and the earth in the trench was soft to the depth of about four feet. Held, that the action could be maintained.</p> <p>If the work of laying water-pipes in a street of a town is intrusted by the town authorities to the superintendent of its waterworks, the town is liable for the negligence of the superintendent or that of his servants in failing properly to fill the trench dug for the purpose of laying the pipes; and in an action against the town by a person injured, six months afterwards, by reason of such negligent filling of the trench, the jury will be warranted in finding that the town either had notice of the defect, or by the exercise of reasonable diligence might have had notice of it.</p> <p>In an action against a town by a person injured by reason of the negligent filling of a trench dug in a street of the town for the purpose of laying water-pipes, there was evidence that there was a soft spot when the trench was dug near the place of the accident; and that the loam and soft material that came out of that spot were thrown back upon the water which had come into the trench. The superintendent of the town’s waterworks, who had charge of the work of laying these water-pipes, and who also had charge of certain work on a reservoir dam in the town, testified that there was a spot full of loam and soft material found on the line of the dam during the building of it. He was then asked by the plaintiff as to the manner of filling that spot. Held, that the question was rightly excluded.</p> <p>In an action against a town by a persoh injured by reason of the negligent filling of a trench dug in a street of the town for the purpose of laying water-pipes, a witness, called as an expert by the plaintiff, testified that he had been a civil engineer and contractor for about twenty years ; that he had had a wide experience in laying pipes and filling trenches ; and he was allowed to testify to the best methods of filling trenches; and he testified further that he had heard the evidence as to the way in which the trench in question had been dug and filled. He was then asked by the plaintiff, “ What would be the condition of such a ditch as that after filling in the manner in which you have heard stated ? ” and, “ What would be proper care to-be used upon that trench, and how long should it be looked after and cared for 1 ” Held, that these questions were properly excluded.</p>

<p>Equity — Specific Performance — Deed— Use.</p> <p>In 1883, A. conveyed, for a valuable consideration, a parcel of land, of which he was seised in fee, to C. “ and her heirs and assigns, in trust, nevertheless, to the use and behoof of said C. during her natural life, with full power to sell and convey the same, or any part of the same, as she may need the same for her comfortable support; and if any part shall remain unsold, then such remaining part shall be in trust for the use and behoof of the grantor and his heirs and assigns, and B. and his heirs and assigns ”; and the habendum was, “ To the said C. and her heirs and assigns, to their own use and behoof, in trust to the uses and purposes before named.” By the will of C.’s husband, there was devised to her another lot of land in the same town, with the buildings thereon, “ to have, hold, use, and enjoy during h§r natural life, with full power and authority to sell and convey in her own name the whole or any part of said lot or buildings, as she may need the same for her comfortable support ” ; but if any part of the same should at her decease remain unsold, the same was devised to A. and B. In consideration of the conveyance from A. to- C. in 1883, C., by a deed of quitclaim, released to A. and B. the lot devised to her by her husband. In 1891, C. died, without having conveyed any portion of the land described in the deed of 1883. Her heirs at law were certain grandchildren, who were minors. Held, that A. and B. could maintain a bill in equity for the specific performance of an agreement, executed after C.’s death, to buy the land described in the deed of 1883, by the terms of which agreement A. and B. were to convey “ a good and sufficient and clear title to the same, free from all encumbrances.”</p>

<p>Misconduct of Juror — Evidence — New Trial — Discretion of Court.</p> <p>At the hearing of a motion for a new trial of an action which resulted in a verdict for the defendant, for personal injuries occasioned by a collision of the plaintiff’s team with the defendant’s car, on the ground that one of the jurors before whom the case was tried, after the arguments had been made and before the charge of the judge had been given, went alone to view the premises where the accident happened, and made inquiries of persons there concerning the accident, the juror was asked by the defendant, “ Did you see or hear anything at the time you viewed the premises alone that influenced your mind one way or the other in relation to this case, or anything that influenced your mind against the plaintiffs or their causes in any degree ? ” Held, that the question was properly excluded.</p> <p>At the hearing of a motion for a new trial of an action for personal injuries occasioned by a collision of the plaintiff’s team with the defendant’s car, on the ground of misconduct of one of the jurors before whom the case was tried, it appeared that, after the arguments had been made and before the charge of the judge had been given, the juror went alone to view the premises where the accident happened, and made inquiries of persons there concerning the accident, and also asked one who had been a witness in the case where he stood at the time of the accident, and the place was pointed out to him. The jury had taken a view of the premises previously by direction of the court. Held, that the judge, in the exercise of his discretion, properly granted a new trial.</p>

Petition to enforce a mechanic’s lien, under the Pub. Sts. c. 191, for labor performed and materials furnished in the erection of a building in Boston. Trial in the Superior Court, without a jury, before Mason, C. J., who allowed a bill of exceptions in substance as follows. The case was heard upon the following agreed facts.

<p>Religious Society — Pews — Subscriptions — Liability of Corporation.</p> <p>In an action against a religious society it appeared that in 1857 all but twenty-eight of the pews were sold or otherwise disposed of. The moneys raised for the support of public worship and other parochial charges and for repairs of the meetinghouse were from and after that time assessed upon the pews according to the valuation under the St. of 1845, c. 213, § 1, (Pub. Sts. c. 38, § 38,) and continued to be so assessed year by year until 1883. In 1858, the society being in debt for part of the cost of erecting its meeting-house, a committee which was appointed to obtain subscriptions recommended a vote authorizing it “ to take subscriptions for the purpose of paying the debt, with the agreement that said subscribers may at any time receive the amount of their subscriptions in pews, and that all sales of pews shall be divided among such subscribers as do not take pews in proportion to their subscription till the amount is refunded.” The report was accepted> and it was voted that the committee be “ authorized to solicit subscriptions to cancel the debt of the society on the terms therein proposed.” It appeared that at a subsequent meeting the committee reported “ that the amount required to pay off the debt of the society was nearly made up, whereupon parties came forward and made up the deficiency.” The plaintiffs’ testator and intestates were subscribers and members of the corporation, and each had previously owned and occupied one of the pews in the meeting-house. To each subscriber a receipt was given by the treasurer, stating that it was for subscription for the payment of the debt, “ the same to be returned him as provided by vote of the society, March 2, 1858.” The land and the meeting-house thereon were sold in 1889, and up to that date none of the twenty-eight pews unsold in 1857 had been disposed of. The sums paid by the subscribers were never returned in money or in pews. In March, 1883, the parish committee recommended that “ for one year at least, in lieu of pew taxes, a subscription be taken from everybody willing to recognize it to be their duty to help support public worship in our town ”; and at an adjourned meeting on April 23,1883, it was voted to adopt the terms reported by a committee to solicit subscriptions, which terms were in the form of a subscription, the payment to be in lieu of all rent of pews, and “ all present engagements of pews are to continue in force, and that any subscriber not at present owning or hiring a pew to have privilege of seats in pews at present unoccupied.” Thereafter the expenses, etc. were paid by subscriptions obtained upon the above terms, instead of by assessments levied on the pews. The plaintiffs’ testator and intestates continued to be members of the corporation and to hold their pews, and they were regular subscribers to the society’s annual expenses under the terms adopted by the vote of April 23, 1883. The actions were brought to recover the sums paid in 1858. Held, that these sums were not loans, but gifts, and that the transaction was not the substitution of one set of creditors for another, but an extinguishment of the debt of the society. Held, also, that the society was not liable for having, by the sale of the meeting-house, put it beyond its power to allow the subscribers to take the amount of their subscriptions in pews, or to divide among them the proceeds of the sales of pews.</p>

<p>On April 5, 1893, the following order was adopted by the House of Representatives, and on April 10, 1893, by the Senate, and was transmitted on April 22,1893, to the Justices of the Supreme Judicial Court, who, on April 28, 1893, returned the answer which is subjoined.</p> <p>“ Whereas, By resolves dated May 21, 1886, the Legislature obtained the opinion of the Justices of the Supreme Judicial Court of the Commonwealth upon the proper construction of the Constitution, especially in regard to the meaning and effect of the words ‘ ward of a city ’; and</p> <p>“ Whereas, Such opinion reversed the action of the Commonwealth as taken in 1865 and in 1875, and compelled the decennial apportionment in 1885 of senators and representatives to be made according to the lines of the wards in cities as they existed on May 1, 1885, instead of the lines of new wards made after the taking of the decennial State census; and</p> <p>“ Whereas, The Legislature by suitable enactments, and more ' especially by chapter 437 of the Acts of 1888, has undertaken to provide that the various cities of the Commonwealth may, between February 10 and May 1 in the year 1895, make a new division of their respective territories into wards, — but, of course, not by any reference to the decennial State census which will be taken on the first day of May, 1895; and</p> <p>“ Whereas, On the first day of May, 1895, there will be in every city the wards which have been in existence since 1885, which wards will be recognized at the State election in November, 1895, and at any special State election until November, 1896; and</p> <p>“ Whereas, the above cited opinion of the Supreme Judicial Court has set forth that, under the laws in force in 1886 (and which have since been repealed), there was ‘ one system of wards for the purpose of electing councillors, senators, and representatives, and a different system of wards for all other purposes ’; but the said court has not decided whether there can be, at the same time, two distinct systems of wards for the purpose of electing councillors, senators, and representatives;</p> <p>“ Therefore, It is ordered by the General Court, in each branch thereof, that the opinion of the Justices of the Supreme Judicial Court be required upon the following important questions of law: — '</p> <p>“ First. In ease any city, in accordance with the terms of any statute upon the subject, shall have undertaken to make a new division of its territory into wards, in the State decennial census of 1895, to be taken and returned into the office of the Secretary of the Commonwealth, shall the enumeration of legal voters residing in each ward of «such city be made according to such new division, or according to the ward lines which have been the indivisible parts of councillor, senatorial, and representative districts since 1885, and which will continue until the State elections in November, 1896?</p> <p>“ Second. Under the terms of the Constitution, the census is to be taken in 1895, and a new apportionment of senators and representatives is to be made by the General Court at its first session thereafter, viz. in 1896. But by Articles XXI. and XXII. of the Amendments to the Constitution, the enumeration aforesaid shall determine the apportionment of representatives and senators 6 for the periods between the taking of the census.’ What provision is made for the apportionment and election of members in the year following the census and before the new apportionment?</p> <p>“ Third. Does the requirement that the decennial enumeration of legal voters shall specify the number residing in each ward in a city establish a constitutional provision that cities must always contain wards? If so, is there any definition establishing what constitutes a ward ? ”</p>