Volume 158 — Massachusetts Reports

The declaration was as follows: “ And the plaintiff says that at the times hereinafter mentioned, and for many years prior thereto, the defendant was a railroad corporation and a common carrier of goods, wares, and merchandise for hire, duly established under the laws of the Commonwealth, and owned, managed, and operated a railroad extending from and between Littleton, Acton, West Acton, South Acton, Boxboro’, Rockbottom, and Stowe, to said city of Boston, all of said cities…

Tort, for personal injuries occasioned to the plaintiff by being run down by the defendant’s locomotive engine at the station on the defendant’s road at Readville. Trial in the Superior Court, before Maynard, J.,who directed a verdict for the defendant; and the plaintiff alleged exceptions, the material portions of which appear in the opinion. The case was argued at the bar in November, 1892, and after-wards was submitted on the briefs to all the judges.

<p>Writ of entry, to recover an undivided half of a parcel of land in Boston.</p> <p>The case was heard in the Superior Court, without a jury, by Sherman, J., who found that the demandants were children, and the only heirs of Mary Ann McCarty, the alleged wife of the tenant John McCarty; that a deed of the land, dated January 16,1886, was made to the tenant and Mary Ann McCarty, his alleged wife, the material parts of which are as follows: “ Know all men by these presents, that we, George Curtis and Solomon Bolster, trustees, in consideration of twenty-five hundred dollars to us paid by John McCarty and Mary Ann -McCarty, wife of the said John, hereby grant, bargain, sell, and convey unto the said John McCarty and Mary Ann McCarty, as tenants by the entirety and not as tenants in common, a certain parcel of land, ... to have and to hold the above granted premises, with all the privileges and appurtenances thereto belonging, to the said John McCarty and Mary Ann McCarty as tenants by the entirety and not as tenants in common, and their heirs and assigns, to their own use and behoof forever ”; that at the time the marriage ceremony took place between John and Mary Ann McCarty, in 1875, Mary Ann was married to Daniel Leahy who was then and continued for some years to be alive; that Mary Ann and John McCarty continued to live together as man and wife, and the parties agreed that it might be assumed that all the parties to the deed believed that the two were husband and wife; but the judge found that John and Mary Ann were never legally married. Both Leahy and Mary Ann McCarty died before the date of the writ.</p> <p>The judge found for the tenants, and reported the case for the determination of this court. If the finding for the tenants was erroneous as matter of law, on the facts found and above stated, and a finding should have been made for the demandants, then the finding was to be-set aside and judgment was to be entered for the demandants.</p>

<p>Personal Injuries — Admissions showing Inconsistency.</p> <p>In an action for personal injuries the plaintiff’s physician was asked, upon cross-examination, if he did not say to a patient that he did not believe the plaintiff could get anything out of the defendant, because he could not make him stay in bed. He replied that he could not remember. The defendant called the patient, who testified that the physician said to him, in answer to a question, that if the plaintiff had-been hurt badly enough to be confined to his bed, he might recover. Held, that the evidence was admissible to show statements by the physician more or less inconsistent with his testimony, in that they treated the plaintiff’s injury as less serious than he represented it on the stand.</p>

<p>Collision of Teams — Statute — Prima Facie Evidence — Burden of Proof.</p> <p>In an action for damages occasioned by a collision, in a public street, it appeared that both teams were left unattended, and that, at the time of the collision, no persons met each other travelling with the vehicles which collided. The plaintiff requested the judge to instruct the jury, first, that if the defendant’s team, passing along unattended, came in contact with the plaintiff’s team, which was left standing at the side of the street on the left hand of the defendant’s team as it approached, that would be prima facie evidence of the defendant’s negligence; secondly, that the burden would be on the defendant to satisfy the jury that he was not negligent. Held, that the provisions of the Pub. Sts. c. 93, § 1, which relate to persons “ travelling with carriages,” etc., had no application, and that the burden of proof remained on the plaintiff as well after as before the introduction of prima facie evidence of negligence; that a prima facie case calls for evidence on the other side to meet it; and that if evidence of equal weight is introduced so that the two sides are in even balance, the plaintiff fails.</p>

<p>Indictment in three counts, charging the defendants, Lowrey and Johnson, in the first count, with breaking and entering a building and stealing therein; Lowrey, in the second count, with breaking and entering with intent to commit larceny, Johnson being an accessory before the fact; and Lowrey, in the third count, with stealing, Johnson being accessory before the fact. At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict of guilty; and the defendants alleged exceptions. The facts appear in the opinion.</p>

<p>Land taken for Public Improvement — Damages — Evidence.</p> <p>Where damages for land taken under a statute for the' purposes of a public park are to be estimated as in cases of laying out, altering, or widening highways under the Pub. Sts. c. 51, § 3, which provides that the damages shall be fixed at the value of the land before such laying out, alteration, or widening, the owner is to be compensated by the payment of the fair value at the time of the taking. It is the purpose of the Legislature not to permit owners to recover damages at a value enhanced by a public improvement which owes its existence to the change of use of the very land to be paid for.</p> <p>On a petition for a jury to assess damages for the taking of land under a statute for the purposes of a public park, evidence of a printed report of the park commissioners containing a recommendation of their advisory landscape architect ten years previously is too remote to show that the project for a park had taken definite form previous to the time in question, such that the enhanced value of land in the vicinity was founded on a settled plan which did not include the petitioners’ land, and which had ceased to have indefinite features, under which their land was liable to be taken and paid for at a value unaffected by the project.</p> <p>On a petition for a jury to assess damages for the taking of land by a city under a statute for a public park, it appeared that the petitioners conveyed to the city six years previously land adjoining that in question “ for the purposes of a public park,” the deed providing that " a strip not less than sixty-five feet wide adjoining the remaining land of grantors, and in length extending the whole distance where said granted premises bound on the remaining land of grantors, to wit, for a distance of 595^^ feet shall forever be and remain a public way.” Held, that the words “ for the purposes of a public park ” constituted a restriction enforceable in equity, and that, if the jury believed that the value of the land taken from the petitioners was enhanced in value at and prior to the taking, by reason of its abutting upon land so held by the city under the previous deed, they might include such enhancement in their estimate of damages. Held, also, that the provision in regard to the way sixty-five feet wide was a condition, a breach of which would work a forfeiture, and not a restriction enforceable in equity.</p> <p>On a petition for a jury to assess damages for the taking of land by a city under a statute for a public park, the judge declined to instruct the jury that, if they believed that the land had at and prior to the time of taking been increased in value by reason of the contemplated laying out of a park way which was to include land conveyed by the petitioners to the city six years previously, but not the land for the taking of which the petitioners claimed damages, the jury might include such increase in value. Held, that the request would have been correct as applied to a case in which it appeared that there was a definite and settled plan for laying out a defined park which did not include the land taken from the petitioners, and that the taking of the petitioners’ land was for a new and different public improvement.</p> <p>On a petition for a jury to assess damages for the taking of land by a city under a statute for a public park, the judge declined to instruct the jury, as requested by the petitioners, that, if the jury believed that the land had at and prior to the time of taking been increased in value by reason of the likelihood that a public park was to be constructed adjoining, but not including, the land taken, they might include such increase in value in their estimate, and that, if they believed that the land had at and prior to the time of the taking been increased in value by reason of the likelihood that a parcel of land adjoining that in question conveyed six years previously by the petitioners to the city for the purposes of a public park was to constitute a portion of a more extended parkway or system of parks, they might include such increase in value in their estimate. Held, that the requests were rightly refused, because the “ likelihood that a public park was to be constructed adjoining, but not including,” the land taken from the petitioners, did not exclude the possibility that, when the scheme was carried out by locating the park on the land, it would include this land, in which case it would be paid for at its value without increase from the improvement.</p> <p>On a petition for a jury to assess damages for the taking of land, in April, 1890, by a city under a statute for a public park, the petitioners called a witness, who testified as an expert to the value of the petitioners’ land, and further testified that a land company of which he was treasurer had sold, in November, 1891, through him, land directly opposite that of the petitioners, and was asked at what price the sale was made. The judge excluded the testimony. Held, that the exclusion was within the discretion of the judge. Held,, also, that it did not appear that the land inquired about was situated similarly to that of the petitioners, and that its value might have been greatly changed by the location of the park, or by other causes, in the interval between April, 1890, and November, 1891.</p>

<p>Advances by a Partner to his Firm — Covenant to pay Firm’s Debts — Liability of Guarantor.</p> <p>A. covenanted with his partner B. to compromise and settle all the debts of the firm as shown on an annexed exhibit or on the books of the firm, and B. released to A. all his interest in the assets. The agreement was made in contemplation of a possible settlement of the partnership affairs in insolvency, in which event the agreement was to be void. The agreement was of the same date as a stipulation of C., a third party, guaranteeing to B. the performance by A. of his covenant. The agreement and stipulation were apparently on the same paper, and both contracts were presumably part of a single transaction. C. was the principal creditor of the firm, and had no other inducement to execute the guaranty than the fact that he was a creditor. B. advanced to the firm, at different times, certain amounts entered on the books, some of which were entered with the word “ loan ” written on the same line. B. had of the firm cash and clothing to a certain amount, as appeared on the books, except that the prices for clothing were not carried out. B. accepted and relied upon the guarantee of C. as contained in the exhibit, and demanded both of A. and C. the sum claimed by him to be due thereunder. This sum did not appear on the exhibit, and was larger than the sum claimed by C. At the time of executing the agreement, B., on demand, divided with A. a sum which B. had collected of customers of the firm. Held, that C. was not liable under the guaranty for the advances by B. to the partnership.</p>

<p>Tort, under the St. of 1887, c. 270. The material part of the declaration was as follows: “ And the plaintiff says that she is the mother and next of kin of Peter W. Maher; that on or about February 4, 1891, the said Peter W. Maher, now deceased, was employed by the defendant corporation; that while he was so employed, and in the exercise of due care, the defendant so negligently and carelessly ran a car, upon which he was required in the course of his employment to be, under a bridge, and so negligently and carelessly protected him in properly guarding the approach to said bridge, thereby not notifying him of his approaching the same, that he, the said deceased, was knocked off from the said car and killed.” Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff gave to the defendant the notice required by the statute of the time, place, and cause of the injury within thirty days thereafter, and the same was put in evidence.</p> <p>The plaintiff testified that she lived in Binghamton, New York, and had lived there for the last five years; that Peter W. Maher was her son, and had lived there with her, following the business of railroading; that her daughter Hannah had also lived with her during .that time; that her other children were married and lived elsewhere, and her son took care of her, and saw that she wanted for nothing; that he was not away until he came to Boston, which was four or five weeks before he was killed; that he provided the house and furnished all that she needed; that she had no other means of support except working for her living since he lived with her; and that he had sent her some money a week before he was killed.</p> <p>Hannah Maher testified that she was a sister of Peter W. Maher, and lived with him and her mother at Binghamton; that her brother provided the board; that she was twenty-one years old when he died; and that she was a tailoress, and worked as such, and contributed what she could of her wages to the support of her mother, but that she could do very little.</p> <p>Edwin White testified that he was a locomotive fireman, on the New York and New England Railroad, and knew Peter W. Maher at Binghamton; that Maher was a conductor in the Erie Railway yard at Binghamton, and spare conductor and switchman; that he was a skilful, able man in his business; that he met him on the way from Binghamton, and came with him to Boston, and they got employment on the defendant's railroad about January 17, 1891; that Maher was killed on February 4, 1891; that he was then the rear brakeman on a freight train; that the witness did not work on the same train with him, Maher working days, while he worked nights; that he went to the morgue and examined Maher’s body after the accident; that he found' a blow over his eye, a large scar, and the back of his head badly bruised; that his skull Avas broken in at the back; that it looked as if it might have been hit with a sharp edge; that the next morning he Avas coming from Worcester, and his train stopped under the Back Bay Park bridge in Boston, and he examined the bridge and found flesh and hair on the stringer of the bridge, which Avas an iron beam with a flange on the lower side standing out four or five inches, with a rough edge right over the car as it passes under, and on the bridge he found that part of the smoke which covered the paint on the edge of the stringer was knocked off, and he also saw that some of the" wires of the tell-tale were gone; that these wires were about three feet long, connected with a small piece of wood about five feet long, and dangled down so as to hit a man in case he was going under the bridge; that he knew what kind of a car Maher was on at the time he was killed, and had measured the same build of cars; that he knew which car Maher was on because he saw the car that morning when he was on it; that he was getting on his ear then, and had hold of the brake wheel; that that car was the same size as the one he measured, which was twelve and a half feet high; that he measured the distance from the place where he saw marks of flesh and hair to the rail, and it was about fourteen and a half feet; that the brake was about eight inches above the top of the car; that the only way to set these brakes on a car was to put one foot against the dog and bend over, but a man might get down on one knee.</p> <p>On cross-examination, - he testified that he looked the bridge over on February 5, but made the measurements some time, perhaps two months, afterwards; that there were a good many of these refrigerator cars in use which are twelve feet and six inches high; that they are cars which bring provisions from the West, and in his business he was familiar with using them; that the stringer of the bridge on which he saw the marks was the first one toward the east, and it was about even with the abutment of the bridge, but the bridge overhangs the stringer probably two feet; that the tell-tale was about one hundred feet east of the bridge; that the wires of the tell-tale sometimes get broken off, and he had seen them thrown up over the bar, but had never known a brakeman to throw them up; that the point where the Boston and Albany Railroad crosses the Providence division of the Old Colony Railroad is east of the place where Maher was injured; that in going from that crossing toward the west the first overhead bridge that one passes under is the Huntington Avenue bridge, that the next one is the Boylston Street bridge, that the next one is a tower bridge, West Chester Park bridge, and the next bridge the Back Bay Park bridge, where Maher was injured; that in the morning of February 5 he saw blood on the sleepers of number one track under the bridge, near the centre of the bridge; and that there had been a tell-tale there, and the bar of the tell-tale and some of the wires were still there, but a part of the wires were gone.</p> <p>Charles W. Hibbard testified that he was a police officer on the Back Bay, and that the bridge in question came on his beat, and he was familiar with it; that Maher was killed on February 4, as he knew, because his attention was called to it by a man on the defendant’s track; that he then went to the bridge and found twelve of the tell-tales gone from number one track 5 that he had noticed the absence of those wires previously to that, perhaps a week or so; and that he did not examine the place under tbe bridge, but reported to his sergeant, and he went down and brought up some blood and laid it on the sidewalk. On cross-examination, he testified that, when he said that twelve tell-tales were gone, he meant that twelve brass wires which hung over the bar were gone; and that this tell-tale was about ninety or a hundred feet from the bridge.</p> <p>Hector Scott testified that he was a freight brakeman on the Boston and Lowell railroad; that, at the time of the injury to Maher, he was at work on the defendant’s railroad as hind middle-man on the train with Maher; that Maher was the tail-man, and his position was on the rear car; that he was killed about eight o’clock in the morning of February 4, 1891; that they left Boston with the car, caboose, and engine gang; that the gang was composed of the engineer, fireman, conductor, and four brakemen; that they picked up a car at the Back Bay, a Swift’s refrigerator car, which was one of the high cars, and started for Brighton; that this car was taken in the rear, behind the caboose; that this was not customary; that he had not known it to be done before; that he had been in that gang from January 17; that from that time until the morning of the accident, he did not remember that the train had ever been made up in that way; that the brake on the caboose was down on the platform; that he thought the train was going eighteen or twenty miles an hour that morning; that he could not say if that was an unusual rate of speed; that he was in the caboose, and the first he knew of the accident was when they got to Cottage Farm and missed Maher; that they then went back and found that a passenger train had picked him up, just ahead of them; that the train was on number one track when he was killed; that he examined the track and found blood there; that he found twenty to thirty inches’ space of the tell-tale gone over the middle of the track; that that was about where his brake was; and that he could not say what the action of the smoke was that morning. On cross-examination, he testified that, when he said that the tell-tale was gone for twenty or thirty inches, he meant that that width of the wires was gone, but that some of the wires wei'e there; that the blood marks were on number one track, about ten feet west from the east side of the bridge; that the brake-handle was usually on top of the car on freight cars, very few being at the end; that in making up a train, the caboose was not always the farthest from the engine, and sometimes was not there at all; and that he had observed the tell-tale at the bridge two or three days before the accident, and there were a number of wires from the tell-tale missing.</p> <p>John Evans testified that he was freight brakeman on the Boston and Lowell Railroad, and was on the train with Maher the day he was killed; that he was in the caboose at the time he was killed; that Maher was the rear-man, and his position was to take care of the rear end of the train; that it was necessary that the rear brakeman should always be in his position; that the train was going at an unusual rate of speed when he was killed; that he could not say anything as to the smoke of the engine on that morning, it acting differently on different days and in different weather; that the train was made up differently that day, as they had a car that was put on at the rear end of the train; that the caboose was usually the rear end.of the train; that he did not know why this car was on the end instead of the caboose, it was simply a matter of convenience; and that the train was under the control of the conductor. On cross-examination, he testified that, when Maher went out of the caboose, he heard him told to get on the top with the flag, ready to flag the rear end.</p> <p>Charles F. Allen testified that his business was railroading; that he was working on the Old Colony Railroad when Maher was killed; that on the next morning he rode in with White, and saw that some wires were gone on the tell-tale, and there was blood on the bridge and blood on the ground ; and that this was over the number one track, over the place where the brake on the car was.</p> <p>William B. Murphy testified that he was sergeant of the Back Bay Park police, and made an examination of the bridge when he was told that there had been an accident there; and that he found blood on the road-bed, and that the pendants of the tell-tale were nearly all gone.</p> <p>This was all the material evidence in the case, the defendant offering no evidence.</p> <p>The defendant asked the judge to instruct the jury, among other things, as follows: “ 1. Upon all the evidence in the case, the plaintiff cannot recover. 2. The jury cannot find for the plaintiff in the case at bar, on the ground that the car on which Maher was, was negligently run under the bridge. ... 4. There is no evidence upon which the jury can find, in the case at bar, that the car upon which Maher was, was negligently run under the bridge. ... 7. Evidence as to the arrangement of the train is only to be considered upon the question of due care.”</p> <p>The judge refused to give these instructions, except so far as they are embraced in the instructions given ; and the defendant excepted.</p> <p>The judge instructed the jury, among other things, as follows : “ This action is based upon two allegations of negligence, or carelessness, on the part of this defendant; one is, that they ran the car carelessly; and the second is, that they did not sufficiently guard the approaches to this bridge. The plaintiff, in order to maintain this action, must satisfy you of two things. She must satisfy you that the defendant was careless, and careless in the respect in which she charges carelessness; and second, she must also satisfy you that the intestate, the deceased, was at the time of this accident in the exercise of due and proper care, taking care of himself. There is a third proposition which I will state later on, because it does not connect itself directly with these two. You have been addressed upon these complaints, particularly as to the latter one; that is, that the approaches to the bridge were not sufficiently guarded. The particular defect in the guarding of this bridge which is complained of is that these suspended wires or tell-tales were absent, so that, upon approaching the bridge, he had not the benefit of that precaution.</p> <p>“ The next question for you to consider is whether that defect was the cause of this accident; because it makes no difference how defective the machinery may be, or all the apparatus that is provided for the safety of the employees, unless the defect is the cause of the injury; and therefore you are to find in this case, in order to render a verdict for the plaintiff, not only that this was defective, but that that defect was the cause of his injury, of his accident, and cost him his life.</p> <p>“ Then she must prove to your satisfaction that this man was, at the time of the accident, in the exercise of due and proper care. In this case, upon the question as to what this man was doing at the time, of course, you have not the benefit of his statement. You have not the benefit of the statement of anybody who saw him at the instant. You are asked to judge as to whether he was or was not in the exercise of due care by such evidence as has been submitted to you, which tends to show where he was a short time, a few minutes more or less, before this accident occurred, and what he was doing, and what his duty was. He was charged with one of these cars and with a brake there. He was not required to stand at his brake and come in contact with that bridge knowingly. That was not his duty. He was required to take care of the brake, and to use proper skill and care in doing ... it, in performing that duty, and also in taking care of himself.</p> <p>“ You must be satisfied, upon the evidence, affirmatively that he was at the time of this accident in the exercise of that degree of care of a prudent man engaged in that business, and having experience, the experience which the evidence in this case discloses that this man had, — whether more or less, that will be for you to judge, — and from which you are to find that he was in the exercise of care as I have described it to you. If the evidence fails to prove that to your satisfaction, then the plaintiff has failed altogether, because she must satisfy you by proof. ... It must be evidence that brings conviction to your minds, so that you would be willing to act upon it in an important transaction in which you yourselves are interested. ... For the law says that if his own want of care contributed in any measure to his accident, however serious the accident is, the plaintiff cannot recover. She must satisfy you that it was the fault of the defendant throughout, and, if she has satisfied you of that, then, so far as those two propositions are concerned, the plaintiff would be entitled to a verdict.</p> <p>“ Then there is a third question which I referred to a moment ago, that under this action you must be satisfied that the death of this man was instantaneous, in other words, that there was no period of conscious life or suffering after he was struck. If these three questions are answered by you in the affirmative, that the defendant was negligent in not having its tell-tales, and the absence of those tell-tales was the cause of this man’s accident, and that he was in the exercise of due care at the time, so that his own carelessness or want of care did not in any measure contribute to his injury, and you further find that the death was instantaneous, and find all those propositions upon the evidence in the affirmative, then the plaintiff has made out the case, so far as the liability is concerned, and the defendant would be liable, if you are satisfied upon all those questions.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Law of the Road — Collision at Junction of Streets.</p> <p>The law of the road, Pub. Sts. c. 93, §§ 1, 4, does not apply to a highway formed by the junction of two streets which cross each other diagonally.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. Trial in the Superior Court, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The injuries complained of were received by the plaintiff, on June 5, 1891, on Washington Street, at the corner of Summer Street, in Boston. Winter Street is opposite Summer Street and west of Washington Street. It was admitted that Washington Street was an accepted street of the city of Boston on June 5, 1891, and that the horse car hereinafter mentioned was at that time operated by the defendant.</p> <p>John W. Little testified that he was a police officer, and stationed at the corner of Washington Street and Summer Street in June, 1891; that at that time the building at the southeast corner thereof was being repaired, and about one half of the sidewalk on Washington Street was there obstructed; that there was a double track in Washington Street which extended straight down Washington Street and also turned down Summer Street; that the curve began on the crossing, which was about fourteen feet wide, and the curve was a sharp one around the corner into Summer Street; that this was the most crowded corner in Boston from about half-past ten o’clock in the morning until about half-past six o’clock in the afternoon ; that he saw the plaintiff on June 5, 1891, a little after twelve o’clock at noon; that she started across the street ahead of him, and stood about three or four feet from him to the north; that he stood with his body and face turned towards the north, and she stood directly in front of him, with her head turned north, both being between the tracks, her body turned toward the east; that she was struck on the right temple by the handle on the rear dasher of an Atlantic Avenue horse car going north and into Summer Street; that she was on the crossing, and had not been there more than a minute; that at that time the street was clear, and nothing was on the crosswalk, which was about fifteen feet wide, and she stood in about the centre; that the car was going as cars usually go; that the horses were trotting around the curve; that he did not see her in time to save her, but caught her in his arms after she was struck and took her to the sidewalk; that the conductor was off the car turning the switch; and that there was no switchman there. On cross-examination, he testified that he was stationed at the corner for the purpose of stopping cars if likely to interfere with people on foot crossing the street; that he did not stop this car, and had no occasion to; that the distance .between the tracks was about four feet, and the plaintiff was standing between the tracks; that he knew where to stand and be safe, but perhaps another person would not; that the point of the switch was twelve feet south of the south line of the crossing; that the car came close to the curbstone at the southeast corner of Summer Street and Washington Street, and would have to be pretty well on the curve before the rear end could be at the middle of the crossing; that the rest of the crosswalk to the opposite corner was clear; that there was nothing to occasion the plaintiff to stand so near the car; that there was at that time plenty of room for people to stand where there would be no danger of being struck; that no other teams were passing, and there was nothing on the westerly side of the street to cause her to get where she was ; that the car was not going rapidly, jogging around the corner at the regular rate as they always go, and stopped just around the corner on Summer Street, where all those cars make a stop ; that he could not tell how long she had stood there before she was hit; that she saw the car coming, and stopped to let it pass; and that there was nothing unusual in the way this car went round the corner.</p> <p>The plaintiff testified that she was eighteen years old on June 21, 1891; that she was working on Hawley Street in June, 1891; that on the 5th of June she had been on Winter Street, and went down the sidewalk on the south side of Winter Street to Washington Street; that when she got to the corner of Winter Street and Washington Street the street was crowded; that she stepped down from the curbstone, and then stepped back; that the police officer, Little, came towards her, waved his hand, and said, “ Come on ”; that she stepped down and started across the street with him, he taking hold of her arm; that she first saw the car about opposite the store on the southeast corner of Washington Street and Summer Street; that the car was then stopped or just starting in front of the store; that at the time of the accident she was standing close to the officer, on the same line with him, and about four feet from the east track; that she turned her head toward the north, and was looking at teams coming from that direction, but not near enough to injure her, and thought she was far enough from the car to be safe; that she did not know what happened; and that she was struck, and knew no more until she was standing against the corner. On cross-examination, she testified that she knew the corner; that she had been there a great many times, and knew it was a crowded corner; that she saw something yellow go by her; that she first saw the car just starting up, and about fifty feet from her; that she saw the front end go by her; that she knew if she stood too close to the car she would get hit, and that the car could not turn out; that she did not know that the car moved more than twice its length; that she thought she was a safe distance from the car; that she was with the police officer; that she thought she was safe partly because the police officer was there, and partly because she supposed she was safe; and that she did not notice the rear end of the car.</p> <p>Charles Boyer testified that he was a police officer; that he knew the corner of Washington Street and Summer Street in June, 1891; that the grade of Summer Street was lower than that of Washington Street; that there was greater travel there than at any other point in Boston; that Atlantic Avenue cars ran down Summer Street, and all other cars along Washington Street; that Atlantic Avenue cars ran every fifteen minutes, and oftener in summer; that the switch was about fourteen feet south of the south line of the crosswalk, and the east rail of the east track was eight feet from the east curbstone of Washington Street at the line of the switch, about seven feet from the curbstone at the south line of the crossing, and two or three feet from the curbstone at the corner; that at the time of the accident he was standing on the east side of Washington Street, at the curbstone, and about five feet south of the south line of the crossing; that he saw the plaintiff on the opposite side of Washington Street; that officer Little approached her, and motioned her to cross ; that she stepped off the sidewalk and came across the street with him, and both halted by the east track; that Little faced north, and she turned her head north, her body facing east, both apparently looking at the same object; that the handle of the hind dasher struck her on the head hard, she staggered, and Little caught her and brought her to the sidewalk; that it was an open car, and the conductor was off the car attending to the switch, and no switchman was there; and that the horses started off at a smart walk, and he didn’t think they were trotting.</p> <p>The judge, at the request of the defendant, ruled that there was no evidence which would warrant a verdict for the plaintiff, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Equity — Account— Trover — Statute of Limitations—Jurisdiction — Infant — Laches.</p> <p>Where a bill in equity for an account states a case disclosing a liability in traver, which is barred by the statute of limitations, this court will not entertain jurisdiction merely on the ground that the property, when converted, belonged to an infant.</p>

<p>Bill in equity, filed in the Superior Court, alleging, as amended, the following facts.</p> <p>On March 15, 1888, the plaintiff formed with the defendant a copartnership, under the style of “ The Advisory Investment Company, John F. Moors and Prescott Bigelow, Managers,” for the purpose of doing business as brokers of stocks and bonds; and on or about February 6, 1889, the style of the firm was changed to “ Moors and Bigelow.” All the capital of the firm was furnished by the plaintiff, the defendant furnishing a seat on the stock exchange.</p> <p>' On or about J une 6, 1888, the defendant borrowed from the firm the sum of $2,250, and gave as security for the same a promissory note for that amount, signed by Walter Gassett, payable to the defendant or order, and by him indorsed to the firm as follows: “ Pay to the order of the Advisory Investment Company, John F. Moors and Prescott Bigelow, Managers. Prescott Bigelow.” The debt of the defendant was not evidenced by any instrument in writing, but was entered on the firm book of account as a loan to him, and the same still stands upon said book as unpaid. About July 1, 1889, the defendant, as further security for the loan, which was then due, and in consideration of the continuance of the same, gave to the firm a note for $1,750, signed by Walter Gassett, payable to the defendant or order, and by him indorsed to the firm as follows: “ Pay to the order of Moors and Bigelow. Prescott Bigelow.”</p> <p>About October 1, 1889, both of the notes being then overdue and unpaid, the firm, for the purpose of collecting the amount of the notes from the maker, indorsed the notes to the defendant. It was agreed and understood between the plaintiff and the defendant that the notes did not by the indorsement cease to be the property of the firm; that they were not thereby released or discharged from liability to the firm as security for the debt of the defendant to the firm; and that the proceeds of the notes when collected should be applied, as far as might be necessary, to the payment of the debt due from thfe defendant to the firm.</p> <p>On January 1, 1891, the firm was dissolved, and among the terms of the dissolution, which were not in writing, it was agreed that all the assets of the firm, including all debts due to the firm, but not including the seat on the stock exchange, should become the property of the plaintiff individually. The debt of the defendant to the firm, together with the notes held as security for the same, thereby became the property of the plaintiff individually, and the debt of the defendant to the firm became payable to the plaintiff individually. If the defendant should prove the payment, cancellation, or satisfaction of any amount found due from him to the plaintiff, the same did not include said loan or any part thereof, but the record of the loan upon the books of the firm was by mistake entirely overlooked, and omitted in the accounting between the plaintiff and the defendant upon which such alleged payment and satisfaction were based. By the terms of the dissolution the plaintiff assumed all indebtedness of the firm. The debt of the defendant was due and unpaid, although the plaintiff had often demanded payment of the defendant, who refused to pay the same.</p> <p>The defendant claimed, notwithstanding the facts above recited, to hold the notes wholly for his own benefit, and free from any lien in favor of the firm or of the plaintiff; and the defendant proposed and intended and was proceeding to collect the amount of the notes, and intended to use the proceeds of the same for his own purposes, regardless of the rights of the plaintiff.</p> <p>The prayer of the bill was that the defendant be decreed to pay to the plaintiff the sum of $2,250, with interest; that the defendant should hold the notes subject to the agreement above set forth as security for the payment to the plaintiff of $2,250, with interest; that the defendant might be ordered to apply the proceeds of the notes when collected, so far as might be necessary for the purpose, to the payment of the amounts due to the plaintiff; and that, until the amount so due to the plaintiff was paid, the defendant be enjoined from selling, negotiating, or indorsing the notes, or either of them, and from disbursing any amount which had been or should be collected upon the notes, except to apply such amounts to the payment of the amount due the plaintiff.</p> <p>In the Superior Court, a decree was entered for the plaintiff, in accordance with the prayer of the bill; and the defendant appealed to this court. The nature of the evidence appears in the opinion.</p>

<p>Equity — Trust — Parties — Statute of Limitations — Laches.</p> <p>A testator left a widow and several minor children, and by his will, which was admitted to probate, gave, besides other bequests, legacies to his two daughters, and the bulk of his property to the widow in trust for the benefit of his children, to be applied in her discretion. The widow never acted as trustee under the will, and the provisions of the will were never executed. The testator also left a profitable business, which was carried on by the widow, with the assistance of her children, and which increased largely in value. The widow and the children lived together as one family until the children came of age and married, and they assisted her in the work of the house as well as in the business. She was recognized by the children as the head of the household and of the business, and she had the possession, control, and management, with the assent of the children, of all the property left by her husband, and of its increase. There was never any express agreement as to wages, board, or clothing, but all were supported from the proceeds of the business until marriage or death. No account was kept of earnings or services, and no charges were made or credits given, and no books of the business were kept. The two daughters married, each receiving a certain sum upon her marriage, and they continued to render services in the house and in the business after their marriage. Within six years after such services were rendered, the two daughters brought a bill in equity against their mother and brothers to recover their share of the fund. The case was referred to a master, who found that the plaintiffs were entitled to recover a certain sum for their services, their shares of a deceased sister’s legacy, which had not been separated from the estate, and their own legacies, ft was also found that the services of the plaintiffs were rendered upon the understanding, which was common to the plaintiffs and to the defendant, their mother, that the plaintiffs should derive pecuniary benefit from the successful prosecution of the business, and that all were to work together. The understanding did not go so far as to fix the terms or the extent of the benefit they were to receive, but this was left very much to the mother, who took and held the property, but she had not the discretion or right to refuse to allow a reasonable share or sum to the plaintiffs, to be determined in view of the result of the business; and she did not repudiate this understanding, or her obligations under it, until within six years prior to the institution of this suit. Held, that the mother was a trustee; that the plaintiffs were entitled to recover the sums found by the master; that the defendants other than the mother were properly made parties defendant; and that the defences of the statute of limitations and of loches were not open.</p>

Motion by the Old Colony Railroad Company, to the Superior Court, for the acceptance of the award of arbitrators under the Pub. Sts. c. 188. The plaintiff objected that the court had no jurisdiction of the award, because the same had not been properly reported or transmitted to the court within the time required by law. Hearing before Dunbar, J., who overruled the objection, allowed the motion, and accepted and confirmed the award; and the plaintiff alleged exceptions.

<p>Petition under Pub. Sts. c. 191, to enforce a mechanic’s lien. The case was submitted to the Superior Court, and, after judgment for the respondent, to this court, on appeal, on agreed facts, the material portions of which are stated in the opinion.</p>

<p>Writ of entry, dated January 25, 1890, to recover a parcel of land in Boston. Plea, nul disseisin. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The evidence showed that George Makepeace, by a warranty deed dated September 27, 1799, duly acknowledged and recorded on September 28,1799, conveyed the demanded premises to John Hoffman, who was the demandant’s great-grandfather and the tenant’s grandfather. He died in December, 1812, leaving two children, John B. Hoffman and Maria Eliza Hoffman, surviving. The will of John Hoffman, which was duly-proved and allowed on January 18, 1813, provided, among other things, as follows: “After my said wife’s decease, I give and bequeath to my only daughter, Maria Eliza Hoffman, and her heirs born of her body forever, one half of all the property which my said wife may leave at her decease. The other half I give and bequeath to my only son, John Butler Hoffman, and his legal heirs forever, after my wife’s decease.” The demanded premises were afterwards, under a petition for partition of John B. Hoffman and Maria E. Hoffman, duly set off to Maria E. as her share as devisee under said will. Maria E. was twice married. Her first husband was Gilman Collamore. The issue of that marriage was two daughters, who died during their infancy, and three sons, — Gilman, father of the demand-ant, John H., the tenant, and George W. Her second husband was Israel Ames. Israel Ames and Maria E. in her right, by a deed dated October 15, 1835, duly acknowledged and recorded on October 29,1835, conveyed the demanded premises in mortgage, in consideration of $12,000, to the Massachusetts Hospital Life Insurance Company, by words of bargain and sale, with covenant of lawful seisin in fee in the grantors. The defeasance clause was, that upon the payment of $12,000 the deed was to be void. The mortgage was discharged in the margin on October 16, 1865. Maria E. died on November 15, 1845, leaving a will, which was duly proved and allowed on January 5, 1846, by the terms of which she bequeathed the demanded premises to George H. Kuhn, in trust for the joint and equal benefit of her two sons, John H. Collamore and George W. Collamore, with the right in them to revoke and terminate the trust, and upon.request the premises, or any part thereof, were to be conveyed to themselves discharged of the trust. The will further provided that the trustee should take the demanded premises subject to the mortgage of $12,000, and that the trustee should pay the same, so as to hold the testatrix’s husband harmless and indemnified therefrom. On January 19, 1846, Kuhn resigned the trust, and the Supreme Judicial Court, on February 2, 1846, appointed John A. Andrew trustee in place of Kuhn. By a deed dated February 5, 1846, Gilman Collamore, John H. Collamore, and George W. Collamore, in consideration of one dollar paid by Andrew, trustee, did “ grant, remise, release, and forever quitclaim unto the said Andrew, his heirs and assigns forever, all the right, title, and interest, estate, and claim which we, or either of us, have, or might have, as heirs at law of our late honored mother, Mrs. Maria Eliza Ames, late of said Boston, deceased wife of Israel Ames of said Boston, or under the last will and testament of our grandfather, John Hoffman, late of said Boston, merchant, deceased, or in any other manner acquired save the right, title, interest, estate, and claim which we have, whether jointly or severally, under the last will and testament of our late said mother, in and to the following parcels of land, with the buildings thereon,” including, among other estates, the demanded premises. This deed further referred to the fact of the resignation of Kuhn and the appointment of Andrew as trustee, and then recited as follows: “ We do hereby mean and intend to convey and confirm the premises aforesaid, with the privileges and appurtenances thereunto belonging.” The habendum was to Andrew as trustee, “ for the purposes expressed in the will of our late mother, Maria E. Ames, above referred to.” The respective wives of Gilman and George joined for the purpose of release of dower. The deed was acknowledged by all the grantors, and duly recorded on February 21, 1846.</p> <p>By a second deed, dated December 12, 1846, Gilman Collamore, in consideration “of five dollars to me paid by John A. Andrew of Boston, in the county aforesaid, trustee under the will of Maria E. Ames, late of said Boston, deceased, the receipt of which is hereby acknowledged, and for other good and valuable considerations me thereto moving,” by words of bargain and sale, conveyed to Andrew the demanded premises. - The deed also provided as follows: “ be my right, title, interest, and • estate in and to the said parcels of land, and each and every part of them, in whatever manner acquired, whether by devise, descent, or otherwise. This conveyance being made for the further assuring of the title of the said Andrew as trustee under the will of my said late mother, in and by which the parcels of land aforesaid were devised in trust for the benefit of my brothers, John H. Collamore and George W. Collamore, and for the confirming unto the said Andrew, trustee as aforesaid, his heirs and assigns, a full and absolute estate in fee simple therein, as also for the purpose of ratifying and confirming the grant and conveyance made by me jointly with my said brothers to the said Andrew by deed dated” February 5, 1846. Lucinda C. Collamore, wife of Gilman, joined for the purpose of release of dower, and the deed was duly acknowledged and recorded on December 31,1846. The oldest child of the demandant’s father was Maria L. H. Collamore, born on December 3, 1845 ; and it was admitted that the demandant is the oldest son of Gilman Collamore, that the latter was the oldest son of Maria E., and that he died on July 26, 1884.</p> <p>It further appeared that George Putnam, Jr., as administrator de bonis non of the estate of George W. Collamore, deceased, under a license from the Probate Court granted on April 13, 1874, conveyed the estate of George W. in the demanded premises to the tenant, by a deed dated May 30, 1874, duly acknowledged and recorded ; and that Andrew, as trustee, conveyed the demanded premises discharged of the trust to the tenant, by a deed dated September 3, 1874. The demandant testified that the tenant had told the demandant that he had obtained the premises partly under his mother’s will and partly at an auction sale on a judgment he had obtained against his brother George.</p> <p>The demandant also introduced in evidence the answers of the tenant to interrogatories propounded to him in proceedings in the Probate Court, which stated, among other things, that he did not pay Gilman anything to execute the deeds of February 5 and December 12, 1846.</p> <p>The judge ruled that, upon all the evidence, the jury would not be justified in returning a verdict for the demandant; and directed a verdict for the tenant. The demandant alleged exceptions.</p>

Indictment for robbery. At the trial in the Superior Court, before Dunbar, J., the defendant, after a verdict of guilty, alleged exceptions, the substance of which appears in the opinion.

Contract, upon a promissory note, of which the following is a copy : November 29, 1890. ‘‘ Ninety days after date I promise to pay to the order of Bell and Casey two hundred and fifty and dollars at any bank in Boston, value received.

<p>Indictment for Polygamy— Copy of Record of Divorce — Identity — Cohabitation.</p> <p>An indictment for polygamy, under the Pub. Sts. c. 207, §§ 4, 5, alleged that the defendant, at Portland, Maine, unlawfully married C. B. T., being the husband of M. A. B., who was alive, and from whom he had not been legally divorced. The defendant offered in evidence what purported to be a copy of the record of the Supreme Judicial Court of Maine, at a term held at Auburn on the third Tuesday of September, 1890, in a cause of divorce in which Thomas M. Lucas of Auburn, husband of Mary A. Lucas, was the libellant and Mary A. Lucas was the libellee, the libel alleging that they were married " at Brockton, in the State of Mass., May the 6th, 1876, by Rev. F. D.,” and it appearing that the libellant gave notice, pursuant to the order of court, to Mary A. Lucas, who did not appear and was defaulted, and the court granted a divorce for desertion. The presiding justice rejected the copy on the ground that there was no evidence “ that the defendant was the same Thomas M. Lucas named in said record.” The exceptions recited that “Mary A. Lucas, formerly M. A. B.," had testified “that on the 10th day of May, in the year 1876, she was united in marriage with the defendant, whom she saw in court and identified, at Brockton, ... by the Rev. F. D.,” and that “ he deserted her in the year 1881.” The exceptions also recited that there was evidence “ tending to show that in the month of February, a. n. 1890, and at other times, the defendant was residing in the State of Maine, and in the town of Auburn.” Held, that the identity of the names, and the close resemblance of the other facts found in the record of the Maine court, and in the testimony at the trial, in the present case, afforded abundant evidence that the defendant was the same person as the libellant in the record.</p> <p>The words to continue “ to cohabit with such second husband or wife,” as used in the Pub. Sts. c. 207, § 4, mean to continue to live or to dwell together as husband and wife ordinarily do, but, according to the weight of authority, do not neCessarily imply actual sexual intercourse.</p>

<p>Contract, for money had and received. At the trial in the Superior Court, without a jury, before Aldrich, J., there was evidence tending to show that the plaintiff on June 16,1891, owned fifty-two shares of the capital stock of the defendant company, of the par value of one hundred dollars per share; that on that day the directors passed the following vote, namely, “ That a dividend of 20 per cent be paid to stockholders of this date, payable Tuesday, June 23d, 1891 ”; that on said June 16th the annual meeting of stockholders of the company for the election of directors was held immediately after the meeting of directors, according to custom, and duly elected five directors, as provided by the by-laws of the company, two only of the old directors being re-elected, and no director being re-elected who voted for the twenty per cent dividend, though the two who were re-elected were present at the meeting when it was voted; and that on said June 16th, as soon as the stockholders’ meeting adjourned, the directors elected and re-elected thereat met, qualified, organized for the year, and passed the following votes: “ That the vote passed by the directors of this company this day declaring a dividend of 20 per cent on the capital stock of the company, payable Tuesday, June 23d, 1891, be reconsidered and rescinded; the same is hereby rescinded. That a dividend of six per cent, payable June 23d instant to stockholder’s of record this day, be declared in place of the dividend voted at earlier meeting of this board this day.” It also appeared that no money was set aside or provided to pay said dividend of twenty per cent, but the company had ample means and facilities for paying the twenty per cent dividend; that always before money had been provided to pay a dividend before it was declared; that money to pay said six per cent dividend was provided after the meeting and before said 23d-of June by borrowing, and the same was set aside and deposited in bank therefor; that the treasurer sent the check of the defendant on the bank where the money was deposited to each stockholder of record of said June 16th to pay the dividend on his stock at six per cent, including the plaintiff, on said 23d June, 1891; and that the plaintiff declined to accept the check, and returned the money to the treasurer. It further appeared in evidence that no stockholder of the defendant had been paid the twenty per cent dividend for June, 1891; that a majority of the stockholders had accepted the dividend of six per cent paid by checks as aforesaid on June 23, 1891, in full; that the plaintiff, by his attorney, by letter of June 30, 1891, demanded payment of the twenty per cent dividend from the defendant; and that the plaintiff made no objection to the check of the defendant sent him to pay the dividend of June 16, 1891, except that it was for a dividend of six per cent, instead of twenty per cent.</p> <p>The defendant asked the court to rule that the directors elected on June 16 had a right on that day to rescind the vote whereby the twenty per cent dividend was declared payable at a future day; and that the plaintiff could not recover. The judge declined so to rule, ordered judgment for the plaintiff, and reported the case for the determination of this court. If the refusal to rule and order of judgment were correct, judgment was to be affirmed; otherwise, judgment -was to be ordered for the defendant.</p>

<p>Contract, upon four promissory notes, one for $1,000, dated August 7, 1885, and due October 2, 1885 ; one for $550, dated September 8, 1885 ; and two for $200 each, dated respectively September 19 and September 26, 1885; the last three notes being due October 1, 1885. At the trial in the Superior Court, before Dewey, J., it appeared in evidence that the notes were all made by one Patrick Hart, and indorsed before delivery by the defendant. October 1, 1885, was Thursday.</p> <p>The defendant contended that no demand for paj^ment of the notes was made upon the maker thereof when the same came due, or at any other time up to the bringing of suits thereon, and that no notice was given to the indorser within a reasonable time of the non-payment of the notes. The plaintiff and his clerk, one Hogg, both testified that they demanded payment of the three smaller notes of Hart at the office of the defendant, on the 3d of October, between eleven in the morning and one o’clock P. M., and of the $1,000 note on the 5th of October, at the defendant’s office, between ten and one o’clock; and that the notes were produced on both occasions, and shown to Hart and the defendant, who were both present, and payment demanded of Hart by the plaintiff, and that, after Hart had said he was unable to pay them, the plaintiff and Hogg both turned to the defendant and said that Hart would not pay the notes, and they must look to the defendant. The plaintiff’s clerk, Hogg, testified that Hart had no place of business of his own ; that he always looked for Hart at Kellogg’s office between ten o’clock A. m. and one P. M., that for some tizne prior to October 1, 1885, and at that time, he repeatedly found Hart there at those hours ; and that Hart was in the habit of going there at such hours, and used a desk there, but the witness could not say who owned the "desk. Hart testified that he had no place of business anywhere, and there was no evidence that he had any save that relating to Kellogg’s office. Hart at the time lived on Dorchester Avenue, Boston, at the address stated on the bottom of some of the notes. The defendant and Hart both testified that no demand was made upon Hart by either said Parker or said Hogg at the time and place aforesaid, or at any other time; and the defendant, on direct examination, testified that . no notice was given him of the non-payment of the notes by said Parker or Hogg at any time, and that his first knowledge of the non-payment of the notes was about the middle of October, when he heard from Hart that the notes had not been paid.</p> <p>In the cross-examination of the defendant the plaintiff’s counsel offered, as tending to show that said Kellogg did know that the notes were not paid, a letter which purported to have been written by the defendant, bearing the date of October 2, 1885, addressed to the plaintiff, of which the following is a copy :</p> <p>“ Boston, Oct. 2,1885. Assignment of Benjamin W. Parker from Sept. 1 to Oct. 1, 1885, is under any other assignment of any nature. The trustees will be settled to-day it is expected without question, and the money drawn to-day or early to-morrow A. M. H. Kellogg, Jr.”</p> <p>The plaintiff offered another letter from the defendant to the plaintiff, of which the following is a copy:</p> <p>“ Boston, Oct. 1, 1885. Ben: Mr. Hart says to be ready at 12 to-morrow, as he has got a sale of some property to-day at home and will not be in until then. I will call then. Hastily, H. Kellogg, Jr.”</p> <p>The defendant objected to both of these letters, but they were admitted in evidence. The defendant admitted writing and signing both letters before they were offered in evidence. In instructing the jury in regard to the issue of demand and notice, the judge said, in substance, that the plaintiff contended that the receipt of the letters, in connection with other, facts known to him and appearing in the evidence, awakened a feeling of insecurity in his mind, and led him to be careful in regard to making demand and giving notice on the notes, and that if the jury thought the letters under the circumstances in which they were received were calculated to have such effect, they could consider them ; the bearing, reference, and effect of the letters being wholly for their judgment.</p> <p>The judge further instructed the jury that a personal demand on Hart would be sufficient, if made on the three smaller notes due October 1, 1885, at any reasonable time and place in the city on October 3, 1885, and on the $1,000 note due October 2, 1885, if made at any reasonable time and place in the city on October 5, 1885, and that if the jury found that demand on Hart was made at Kellogg’s office at the hours aforesaid, as testified to by the plaintiff and Hogg, such demand would be sufficient, and that no demand at Hart’s residence was necessary. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Promissory Notes — Written Agreement — Indorsement of Married Woman — Consideration.</p> <p>On a bill in equity brought against a married woman on three promissory notes signed by her husband, payable to her order, and bearing her name upon the back under the words, “I hereby charge my separate estate with the amount of this note,” it appeared in evidence that a written agreement was made between the plaintiff and the husband of the defendant referring to the notes, and providing that, if paid to the plaintiff, they should be a settlement in full of all claims between the parties to date ; but if any of them should not be paid, the account should stand as stated in the plaintiff’s ledger. A week or two after the agreement and notes were signed by the husband and left with the plaintiff, the husband brought his wife to the office of the plaintiff, and she put her name on the back of each of the notes under the words referred to. The plaintiff was away, but had left the papers with his bookkeeper. The notes were used by the plaintiff according to the terms of the written contract. Held, that evidence of an original oral agreement that the defendant was to lend her credit to her husband was competent evidence in connection with the other facts to show that the papers when left with the plaintiff were not delivered, but merely left to await completion; that the case was one of an accommodation indorsement, that the words written over the signature of the defendant bad no tendency to show the nature of her obligation, and that, if she made any kind of a contract, her separate estate would be chargeable for the performance of her undertaking as well without these words as with them.</p> <p>The cases which hold that knowledge of the consideration by one putting his name on a note for the accommodation of another is necessary to bind him, are where a note had previously taken effect as a contract, and a new and independent consideration is required for the new contract.</p>

Bill in equity, filed January 27, 1891, by the mortgagor of personal property against the mortgagees.

<p>Certiorari—Board of Railroad Commissioners — Relocation and Union of Railroad Stations — Statute.</p> <p>Two railroad stations can be relocated at the same point in one proceeding under the provisions of the Pub. Sts. c. 112, § 157, and the contention that such a change, necessarily lessening the number of stopping places, is an abandonment forbidden by the provisions of the Pub. Sts. c. 112, § 156, is unsound.</p> <p>A petition was brought by residents of a town, who were legal voters and owners of real estate therein, for a writ of certiorari to quash the proceedings of the Board of Railroad Commissioners approving the proposed relocation of two stations on the line of a railroad and their union in one station. Held, that the petition must be dismissed, because none of the petitioners were parties to the original proceedings before the board, and none of them showed such a state of facts as would entitle them to a private remedy if the action of the board was unauthorized or illegal.</p>

<p>Trademark— Equity — Injunction.</p> <p>Upon a bill in equity to enjoin N. from using the word “Draper” as applied to other oilers than those made by the plaintiff corporation, the following facts appeared. In 1890, the plaintiff corporation purchased the stock in trade and good will of Francis Draper & Co., including the possession of their factory, of which they were tenants at will, and took a covenant from the members of the firm not to engage in the manufacture of oil cans for ten years. A little later, the plaintiff corporation took from the same firm a grant of the exclusive right to the use of the word “ Draper ” for oilers for the same ten years. Draper & Co. had made hardware since 1833, and had put the name “Draper ” on different articles of their make. About 1880, they began to make oilers, and put their name upon them in various forms to denote that the cans were of superior excellence. For some years before 1888, and also since, there have been inferior oilers in the market resembling the genuine article, and called Draper oilers and Star oilers. From 1880 to 1884, one A. bought some cans from Draper & Co., manufactured cans resembling theirs, and marked those in which he dealt “ Draper Oiler Company.” Draper & Co. having stamped a lot of cans made for N. “ Draper Oiler Co.,” A. notified them not to use that label, alleging that he had a copyright on it. To avoid controversy, they then stamped the oilers which they made for N. “F. Draper & Co.,” until 1888, when, becoming dissatisfied with him, they marked the oilers made for him “ Cambridge Manufacturing and Oiler Co.” In 1878, N., until then in the employ of Draper & Co., began to sell their goods on his own account. In 1882, he sold most of the oilers made by them. In 1885, he published a catalogue, calling it “ Catalogue of Draper Oiler Co.” A later one was entitled “ Catalogue of Noera [the defendant] and Draper,” etc. Up to 1887, Draper & Go. made all the oilers sold by N. under the name Draper Oiler Co. After that, N. began to have the less important parts made elsewhere, and then the oilers were completed by Draper & Co. In selling oilers, N. packed them in boxes labelled, “ Draper Steel Oilers.” In 1890, N. sold out to the plaintiff corporation, and for the time went out of business on his own account, and entered the employ of the plaintiff. Later in the same year, the parties released each other from the agreement made at that time. Held, that the bill could be maintained. Held, also, on a bill in equity brought by N. to enjoin the corporation from receiving from the post office any mail addressed to the “ Draper Oil Co.,” that the court would not attempt to dispose of the bill further than to deny the injunction.</p>

<p>Agreement to sell Real Estate — Specific Performance — Statute of Frauds — Delivery.</p> <p>A bill in equity alleged that B., the defendant, by a written agreement under seal, duly authorized by him and for a valuable consideration, agreed to execute on a certain date a bond for a deed of land owned by him, the form of the bond, the price, and the terms of sale to be agreed upon in writing by and between the plaintiff A. and B. This agreement, which was executed by C., describing himself as “agent for B.,” recited that he had received from A, five hundred dollars in part payment of the land in question, “ it being understood that a bond for a deed of said property is to be given to-day by B.” By an unsigned agreement of the same date between A. and B. and another, B. agreed to sell, and A. and another to purchase, the land in question, according to certain terms therein set forth. The bill alleged a demand by A. on B. to execute the bond, and refusal by B., and the prayer was that B. be restrained from making a deed of the land, or placing any encumbrance thereon, and that he be ordered to execute and deliver to A. a bond as aforesaid. The case was referred to a master, who found, upon the evidence, subject to the legal construction of the contracts, that B. put the property in C.’s hands to procure a purchaser, to advertise the same, and to obtain offers of purchase; that C. had no authority to complete a contract of sale without submission to and authority from B.; that A. made to C. an offer, and was informed that it would have to be communicated to B., and that the offer was' subsequently accepted “ subject to a proper written contract being prepared.” It did not appear that B. knew of the receipt for five hundred dollars, but it did appear that A. knew, when he paid the money to C. and obtained the instrument, “ that, although the price was fixed, there were other points to be determined and details to be settled, and what such points and details were, and that the same were to be incorporated into a written agreement, and submitted to and approved by the defendants as terms of the sale.” Held, that it was not necessary to consider whether the receipt for five hundred dollars was sufficient of itself to satisfy the Pub. Sts. c. 78, § 1, cl. 4, inasmuch as some of the essential terms were still to be agreed upon, and to be expressed in an instrument in writing to be signed by the parties; and that it could not be contended that B. ratified the act of C., inasmuch as it did not appear that B. had any knowledge of it.</p> <p>A bill in equity was brought to enforce specific performance of an agreement signed by B. and the other owners of real estate to sell it to A. and another. The agreement was then put into the custody of C., as the agent of B. and the other owners, with authority to deliver it to A. and the other person on his being satisfied of their financial responsibility. There was nothing in the evidence to show that C. acted for any one but the defendants in holding the paper, and the paper was never delivered. Held, that, if C. was not satisfied in his own mind of the fact that A. and the other person were financially responsible, he had no authority from his principals to deliver the agreement; that, until lie did deliver it, they could revoke his authority; and that, although the agreement was signed by the parties, yet as there was no delivery it never took effect, and could not be considered a sufficient memorandum within the statute of frauds.</p>

<p>Trespass — License to plant Oysters — Statute.</p> <p>A license was issued to A., under the Pub. Sts. c. 91, §§ 97, 98, 99, and later statutes, to plant, etc. oysters on the flats in the tide waters of a bay. B. just previously had applied for a renewal of his license of the same flats, and, having failed to take it out, after being notified that it was to be granted, the license was issued to A., who thereafter brought an action of tort under the Pub. Sts. c. 91, § 99, against B. for entering the flats and carrying away oysters. Held, that the statutes contemplate a written and recorded license, and whatever right the defendant might have had if he had called for his second license upon receiving notice that it had been awarded to him, his failure to call for it left it open for the selectmen to grant a license to the plaintiff, and the license so granted was valid, and the fact that oysters planted by the defendant remained upon the territory gave the defendant no right to gather them after the plaintiff obtained his license.</p>

<p>Policy of Insurance — Description — Property insured — Exception rendered immaterial.</p> <p>In an action on a policy of insurance for one year from September 8,1890, at noon, it appeared that the application was made out on that day for the plaintiff by an insurance agent, not an agent of the defendant, and was forwarded to one C., the defendant's agent at O., whom it reached at about noon on September 9. The property intended by the plaintiff to be insured had been bu> ned earlier on the same day. C. made out the policy, and after a delay of a few days forwarded it. The property was described in the policy following the application, as grain “ contained in the Elevator Building of the Ogdensburg Terminal Company at O., N. Y.” On September 8, there were two elevators at O., both operated by the Ogdensburg Terminal Company ; one new, owned by it, the other older, owned by a railroad company, but then let to the Terminal Company. The latter, which contained the plaintiff’s grain, was burned on the 9th, as C. knew; and C. testified that that elevator was known and distinguished as the Railroad Company’s elevator, and the other as the Terminal Company’s elevator. Held, that the court rightly directed a verdict for the defendant.</p> <p>The plaintiff’s exception to the introduction of evidence by the defendant was held to be immaterial by the judge’s directing a verdict for the defendant.</p>

<p>Tort, for an assault and battery on three separate occasions, the first in March, 1889, at Worcester, and the other two in May, 1889, at Spencer. Answer, a general denial. Trial in the Superior Court, before Corcoran, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff’s evidence showed that an assault and battery was made by the defendant upon the plaintiff, who is a married woman, and attempts by him to have sexual intercourse with her without her consent, at Worcester and at Spencer.</p> <p>The plaintiff and her husband were both witnesses, and, after they had testified, the following evidence was admitted, against the objection of the plaintiff, all of which related to transactions unconnected with and over twenty years before the alleged assaults.</p> <p>One Fottler testified as follows: “ I knew the Millers thirty years ago at Hingham; my father bought real estate of them, and I sold goods to them. I visited them in Westborough about the bill six or seven years after; both were present. Mrs. Miller made the remark that they owned the property. I expressed a little wonder at their owning it, not having lived there very long. She said she got the money to pay for it herself, and she turned to her husband and said she knew how to get money out of these rich old fellows; that was the remark. Her husband stood near, and she turned and said as long as her husband did not find fault it was all right.”</p> <p>Charles Tenney of Westborough testified that he was eighty years of age, and very deaf; that he worked for the Millers in Westborough twenty-five years ago; that on one occasion he was called down cellar by the plaintiff to do some work, and soon after they got down she rushed up again and complained to her husband that she had been assaulted; and that he was obliged to leave his place without receiving his wages.</p> <p>Patrick Gately of Spencer testified that he worked for the Millers in Spencer sixteen years ago. He related a conversation with the plaintiff, the details of which were unfit for publication; and which was to the effect that the plaintiff told him that, when they lived in Westborough, her husband got $18 out of a man who assaulted her, and she was so mad because he did not get more that she threw the money in the fire.</p> <p>Charles M. Fay of Westborough testified that, in 1867, he worked for one Winslow in Westborough, and the Millers lived near them; that the plaintiff at one time told him that she was going to sue Winslow for insulting her; and that the witness told that to Winslow.</p> <p>Charles P. Winslow testified that he had lived in Westborough about forty years; that when he returned from the war, he lived near the Millers; that he remembered Fay’s telling what the plaintiff said about him; that previously to this, he was alone with her only once, two or three days before; that he went to Miller’s to get him to go skating; that the plaintiff came to the door, and got him to come in to see the stock; that they looked at the cattle in the barn, and then went into the house; that he did not stop long, and nothing out of the way took place; and that he was not alone with her at other times, and nothing of an improper nature ever took place between them.</p> <p>Charles H. Fayerweather of Northborough testified that he had lived near the Millers in Westborough, which was over twenty years ago, and had dealings with them; that he sold a heifer to them, which they led away with a halter they borrowed of him; that he drove to their home to get the halter, and met the plaintiff, who got it for him; that that was all that took place; that a little later he had a talk with Miller, who told him he must settle for assaulting his wife; that Miller told him to think it over, and later called again and told him he could settle for $50; and that the witness refused to pay him anything.</p> <p>The plaintiff and her husband had both been cross-examined regarding each of the incidents testified to by these witnesses, and had denied them wholly. The judge, in admitting the evidence, instructed the jury that it was to be considered only on the question of damages.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in October, 1892, and after-wards was submitted on the briefs to all the judges.</p>

<p>Contract, upon a promissory note for $184, dated November 22, 1888, payable in ten days after date to the plaintiffs, and signed by the defendant. The answer set up want of consideration. Trial in the Superior Court, without a jury, before Bishop, J., who ruled that the action could not be maintained, found for the defendant, and, at the request of the parties, reported the case for the determination of this court. If the ruling was right, judgment was to be entered for the defendant; otherwise, judgment was to be entered for the plaintiffs. The material facts appear in the opinion.</p>

<p>Tort, under the St. of 1887, c. 270, for personal injuries occasioned to the plaintiff while in the defendant’s employ. Trial in the Superior Court, before Sherman, J., who, at the defendant’s request, directed the jury to return a verdict for the defendant; and, at the plaintiff’s request, reported the case for the determination of this court. If the ruling was correct, the verdict was to stand; otherwise, the verdict was to be set aside and a new trial granted. The material facts appear in the opinion.</p>

<p>Contract — Indemnity —■ Declaration — Demurrer.</p> <p>A., a contractor engaged in erecting a building, and B., an independent contractor engaged in doing certain work on the building, entered into an agreement in writing, by which B. was allowed to use A.'s engines and derricks at the building at a certain rate of compensation, and which contained the following provision : “ If any injury shall be occasioned to any person or property while you [B.] are using such engines or derricks, or as a result of such use, you [B.] are to indemnify us [A.] against any damage or expense by reason of the same, notwithstanding the condition of the engine, derrick, or appliances, or the negligence of our [A.’s] employees upon the derrick or engine, may have caused or contributed to the injury.” Owing to the defective condition of one of the derricks, while B. was using it, an employee of A., who was not working upon the derrick, was injured, and A. paid him a certain sum in settlement of his claim for such injury. Held, in an action upon the agreement, that B. undertook to indemnify A. against the expense incurred by him in his settlement with the injured person.</p> <p>A declaration containing two counts alleged, in the first count, that the plaintiff was engaged as a contractor in erecting a building, and owned certain derricks and their appliances used in the construction of the building; that the defendant was engaged as an independent contractor in doing certain work on the building; that the plaintiff and the defendant entered into a valid written contract, a copy of which was annexed; that on a certain day, while the contract was in full force, and while the defendant was using one of the derricks, the derrick and its appliances broke and gave way, and injured certain persons named; that the breaking and giving way of the derrick and its appliances were caused by their unsafe and defective condition, of which the plaintiff knew, or by the exercise of due care ought to have known; that the injured persons did not know, and by the exercise of reasonable diligence and care would not have known, of such condition of the derrick and its appliances; that the plaintiff, knowing that the defendant was using the derrick, negligently ordered and allowed the injured persons to work for the plaintiff in a place that was dangerous owing to the condition of the derrick and its appliances, and their use by the defendant in that condition, and did not warn the injured persons of their danger; that the injuries were caused by such negligence of the plaintiff; that the injured persons were in the exercise of due care, and were regularly performing the duties of their employment as employees of the plaintiff; that the plaintiff was legally liable to the injured persons for all such injuries sustained by them; that the plaintiff, being threatened with suits by the injured persons, paid each a certain sum by way of compromise and in settlement of their claims ; that the plaintiff gave the defendant immediate notice of the accident, and of his liability therefor, under the contract between them ; that the defendant refused to settle the claims, and the plaintiff, before settling them, gave reasonable notice to the defendant of his intention so to settle them ; and that the defendant owed the plaintiff the amount so paid in such settlements. The second count was similar to the first, except that, in the allegations of knowledge of the condition of the derrick and of negligence, the plaintiff’s “ superintendent” (without naming him) was substituted for the plaintiff himself. By the contract annexed to the declaration, the defendant was allowed to use the plaintiff’s engines and derricks at the building at a certain rate of compensation; and it contained the following provision: “ If any injury shall he occasioned to any person or property while you [the defendant] are using such engines or derricks, or as a result of such use, you [the defendant] are to indemnify us [the plaintiff] against any damage or expense by reason of the same, notwithstanding the condition of the engine, derrick, or appliances, or the negligence of our [the plaintiff’s] employees upon the derrick or engine, may have caused or contributed to the injury.” Held, on demurrer, that the declaration set out a good cause of action.</p>

<p>Bill in equity, filed in the Superior Court on October 26, 1891, by Henry P. Emerson and Frank D. Allen, against Francis E. Galloupe and Francis W. Breed, to declare a trust. The case was heard by Mason, C. J., and reported, at the request of the plaintiffs, for the determination of this court. The facts appear in the opinion.</p>

<p>Fugitive from, Justice — Constitutional Law — Assault — Evidence — Officer — Arrest without Warrant —Possession of Short Lobsters with Intent to sell — Statute.</p> <p>A fugitive from justice, who has been surrendered by another State under the Const. U. S., Art. IV. § 2, cl. 2, upon a requisition from the Governor of this Commonwealth, may be tried here for an offence other than that specified in the requisition, although committed before the fugitive was demanded, without first giving him a reasonable opportunity to return to the State from which he was extradited.</p> <p>At the trial of an indictment for an assault upon A., committed while he was attempting to board the defendant’s boat for the purpose of arresting him, and after he had said to the defendant, “ I am a State officer, and am coming on board,” A. may testify that, at the time of the assault, he was a district police officer and a deputy fish commissioner.</p> <p>A district police officer and deputy fish commissioner has no authority to arrest without a warrant a person suspected of having in his possession short lobsters with intent to sell them.</p>

Complaint to the Police Court of Lowell, for unlawfully-exposing and 'keeping for sale intoxicating liquors with intent unlawfully to sell the same in this Commonwealth, on February 7, 1892, at Lowell. Trial in the Superior Court, before Fessenden, J., who allowed a bill of exceptions, in substance as follows.

<p>Assaulting Officer in Discharge of Duty — Trial.</p> <p>At the trial of a complaint for an assault upon an officer while in the discharge of his duty, the officer testified, without objection, that he was assaulted while attempting to arrest the defendant; and that he had a copias at that time, and so stated to the defendant. The capias was not produced by the government, although called for by the defendant. The judge refused to rule, as requested by the defendant, that, in the absence of the capias, the evidence for the government did not sustain the complaint. Held, that the defendant had no ground of exception.</p>

<p>Writ of error, to reverse a judgment rendered for the Commonwealth, at the May sitting, 1889, of the Superior Court for the county of Dukes County, upon an indictment for poisoning. Plea, in nullo est erratum. The material facts appear in the opinion.</p>

<p>Complaint to the justice of the Police Court of Chelsea, alleging that the defendant, on March 29, 1892, at Chelsea, unlawfully exposed and kept for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth. In the Superior Court, upon appeal, after a verdict of guilty, the defendant moved to dismiss the complaint, and in arrest of judgment. The motions were overruled; and the defendant appealed to this court. The material facts appear in the opinion.</p>

<p>Indictment, in two counts. The first count charged the forging of a deed by Charles W. Bingham; and the second count charged the uttering of the forged deed by Bingham and by Joshua U. Briggs. The defendants were tried together. Trial in the Superior Court, before Braley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>At the opening of the trial, the defendant Bingham moved “ that the trial of these two defendants be separated, and that the defendant Bingham be permitted to go to trial alone, upon the ground that evidence will necessarily be admitted in the prosecution or defence of the defendant Briggs which, though inadmissible on the trial of Bingham alone, will, if the joint trial be allowed, unavoidably reach the ears of the jury to the fatal prejudice of the defendant Bingham, whereby his constitutional right to trial by jury will be violated.”</p> <p>The motion was denied, with leave to resume the same if it became apparent, during the progress of the trial, that the defendant Bingham was so prejudiced; and he excepted.</p> <p>The government, called as a witness John Cornish, superintendent of the Pinkerton Detective Agency, who was permitted, against the objection of the defendant Bingham, to testify to a conversation between himself and the defendant Briggs, in the absence of Bingham, in which Briggs was alleged to have stated to Cornish that Bingham came to him and engaged him (Briggs) to obtain a mortgage upon the property alleged to have been transferred to Briggs by a forged deed; that he (Briggs) obtained the loan through one Creech; that Bingham, claiming to be the duly authorized agent of John L. Barry (whose signature Bingham was charged with forging), instructed Briggs to execute and deliver a certain mortgage to one Fales for $5,000; that the deed was so executed and delivered by Briggs upon such instruction ; that $5,000 was paid thereon to Bingham; and that Briggs received only twenty dollars of the money as a commission.</p> <p>The defendant Bingham moved to strike out this evidence. This motion was denied; and the judge instructed the jury at the time, but not in the final charge, that they were not to consider this evidence in dealing with the case against Bingham. The defendant Bingham excepted.</p> <p>The motion was then renewed on behalf of Bingham for a separate trial of the defendants, by reason of the above ruling. This motion was denied; and Bingham excepted.</p> <p>Bingham called as his witness the defendant Briggs, who, after he had testified that Bingham employed him to get this money upon the mortgage for the benefit of John L. Barry, was asked by the defendant’s counsel, “ After this money was paid over to Bingham, as the agent of Barry, did you see him again?” To which the witness answered, “ Yes, about a week after.” He was then asked, “ At that time did Bingham state to you what he had done with the money ? ” The witness answered, “ He did.” He was asked the further question, “ What did he say he had done with it ? ” This question was excluded; and the defendant Bingham excepted.</p> <p>The jury returned a verdict of not guilty as to the defendant Briggs, and a verdict of guilty as to the defendant Bingham; and Bingham alleged exceptions.</p>

<p>Oleomargarine in Imitation of Butter— “ Expose for Sale ” — Statute.</p> <p>If a person has for sale in his shop oleomargarine colored in imitation of yellow butter, which is kept in a closed and covered refrigerator and cannot be seen by customers, although he has a sign in the shop to the effect that oleomargarine is sold there, he does not “ expose for sale ” such oleomargarine, within the meaning of the St. of 1891, c. 58, § 1.</p>

<p>Personal Injuries — Employers’ Liability Act— Railroad — Negligence — Superintendence.</p> <p>In an action against a railroad corporation, under the St. of 1887, c. 270, § 1, cl. 2, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the negligence of a person in the service of the defendant intrusted with and exercising superintendence, it appeared that the plaintiff was on a hand-car and was run into by a “ wild train,” that is, a train running by special orders and not regularly to be expected at the same time; that the train and the hand-car were moving towards each other round a curved ledge of rock, which prevented their seeing each other until within a distance of from ninety to fifty feet; that the train was on an up grade, going ten or twelve miles an hour, and the- hand-car on a down grade, going from twelve to fifteen miles an hour; that it was a common thing for wild trains to come along, and the plaintiff, who had worked on this road as a section hand for the greater part of the last fifteen years, “ knew about the habits of running the road.” The defendant’s rules provided that “ enginemen and conductors who are to run wild trains or engines will see that the train preceding them carries a red signal for them,” and that this was a notice to section men that a wild train was to follow; that “ if, however, for any reason, it is impossible for them to do so, they must. . . run at a slow rate of speed around all curves”; that “ wild trains will, when a flag has not been sent on a previous train, before turning any curve, reduce rate to a speed not exceeding fifteen miles per hour " ; that “ wild trains may be run over the road on telegraphic orders without notice ” ; and that wild trains should whistle one mile before turning a curve. It also appeared that, in the present case, it was impossible for the wild train to get the red flag on to the train next ahead, because the latter had started. There was no direct evidence that the plaintiff knew the rules, but the section foreman in charge of the hand-car had a copy of them. The plaintiff testified that they did not know when the train was coming; and the engineer of the train testified that he whistled before he got to the curve, perhaps within fifteen or sixteen rods, and, on cross-examination, that there was “no notice to them that train was coming only so far as whistle was concerned.” Held, that the jury would not have been warranted in finding the defendant negligent; and that the defendant could not be held liable on the ground that the conduct of the hand-car was governed by the section foreman, who was a person intrusted with and exercising superintendence, and to whose negligence, while superintending, the accident was due.</p>

Two actions. The first was tort for breaking and entering the plaintiffs close in Conway, and the second was replevin of a heifer. The cases were tried together in the Superior Court, before Maynard, J., who allowed a bill of exceptions, in substance as follows. It appeared that, on October 10, 1890, the plaintiff exchanged a buggy wagon with side springs for a heifer of the defendant ; and that both wagon and heifer were delivered.

<p>Land Damages — Railroad— Sheriff’s Jury — Evidence—Verdict.</p> <p>If a sufficient number of the jurors summoned to try a petition for an assessment of damages for the taking of land for a railroad are not present, it is no objection to talesmen returned by the sheriff under the provisions of the Pub. Sts. c. 49, § 41, that they are not residents of the nearest towns to that in which the land lies, if they are qualified and liable to serve in that county.</p> <p>At the trial of a petition before a sheriff’s jury, for an assessment of damages occasioned to the petitioner by the taking of his land by a railroad corporation, evidence of a declaration of the general manager of the corporation as to the purpose to which the land was to be put is incompetent; and the award by the county commissioners of damages for the taking is also properly excluded.</p> <p>At the trial of a joint petition by three persons before a sheriff’s jury, for an assessment of damages sustained by each petitioner by the taking of his land for railroad purposes, the petitioners contended that each could recover the value of his own land taken and the damages occasioned to his other lands in the same village by the whole taking; and they were allowed to introduce evidence upon this theory. The respondent asked instructions based upon a contrary theory, which were refused. Held, that the verdicts must be set aside.</p>

Writ oe entry, dated May 8,1882, to recover a parcel of land in Lawrence. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the tenants, to this court, on appeal, upon agreed facts, in substance as follows. On September 5, 1877, and for nearly twenty years prior thereto, the demandant was in possession of the land and seised thereof in fee.

Contract, upon an account annexed for one hundred and eight -f-fa dollars, for 2,850 eelskins sold by the plaintiff to the defendant. At the trial in the Superior Court, before Hammond, J., it appeared in evidence that the plaintiff lived in Saugus, and the defendant had its usual place of business in Westfield, and was engaged in the manufacture of whips.

Tort, for breaking and entering the plaintiff’s close in Brain-tree. Answer, a general denial. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, the material parts of which appear in the opinion.

<p>Intoxicating Liquors — Intent— Complaint — Duplicity.</p> <p>A complaint on the Pub. Sts. c. 100, § 17, charging the bringing by the defendant into a town in which licenses of the first five classes were not granted certain intoxicating liquors with intent “ to sell the same himself, to have the same sold by another, and having reasonable cause to believe that the same is intended to he sold in violation of law,” is not bad for duplicity.</p>

<p>Intoxicating Liquors — Illegal Keeping for Sale — Motion for Continuance —» Druggist's License — Screen Law — Complaint — Evidence — Statute.</p> <p>Where there are two shires of a county, in each of which the Superior Court sits alternately, no exception lies to the refusal of the presiding judge to postpone the trial of a criminal case in one of the places to the sitting in the other place three months later, or to adjourn to the latter place for the trial of the case.</p> <p>The provisions of the Pub. Sts. c. 100, § 12, forbidding any person licensed to sell intoxicating liquors and to place or maintain screens or other obstructions in such a way as to interfere with a view of the business conducted upon the premises, apply to licensees of the sixth class, as well as to all other licensees.</p> <p>A complaint against a licensee of the sixth class, for the unlawful keeping for sale of intoxicating liquors, need not aver that the provisions of the Pub. Sts. c. 100, § 12, forbidding any licensee to place or maintain screens or other obstructions'in such a way as to interfere with a view of the business conducted upon the premises, have been violated.</p> <p>It is not necessary to aver in a complaint against a licensee, for the unlawful keeping for sale of intoxicating liquors, or to prove at the trial, that the licensing board had required the defendant to remove the blinds and curtains upon the licensed premises.</p> <p>At the trial of a complaint against a licensee, for the unlawful keeping for sale of intoxicating liquors, the fact that the windows of the licensed premises open upon private grounds does not render it incompetent to prove that the view through the windows, or one of them, was obstructed.</p> <p>At the trial of a complaint against a licensee of the sixth class, for the unlawful keeping for sale of intoxicating liquors, there was evidence that two police officers visited the defendant’s drug store in the evening of the day named in the complaint, and found in a back room connecting with the store, called the “ back shop,” two men sitting, with the gas turned down; that, after turning on the gas, they also found several prescription glasses standing upon a shelf over a sink, and smelling of liquor; that on the shelf near the glasses was a demijohn containing whiskey, and the shelf there was wet with whiskey and showed marks where glasses had been placed; that the officers also found in the cellar a keg containing cider, and on a box near the keg was a glass wet with cider, and the box was also wet with cider where the glass stood; that they also found bottles of ale, recently opened, with some ale in each bottle, and also other liquors in bottles and barrels in the cellar; that there were two windows in the back shop, upon one of which were blinds closed and a curtain pulled wholly down, and the other of which had no curtain, but the view to which was obstructed to some extent by a pile of boxes and barrels in the yard; that the officers called the defendant’s attention to the condition of the prescription glasses, the shelf, and the demijohn in the back shop, and he made no reply; and that at other times near the date of the complaint persons were seen going into and coming out from the back shop under circumstances which might be deemed suspicious. Held, that the evidence was competent, and was sufficient to warrant a conviction.</p> <p>At the trial of a complaint against a licensee of the sixth class, for the unlawful keeping for sale of intoxicating liquors, it is not necessary to prove that cider found upon the defendant’s premises on the day named in the complaint contained more than one per cent of alcohol.</p> <p>If a druggist having a license of the sixth class, sells intoxicating liquors in violation thereof, it is not unconstitutional to impose upon him a penalty, in addition to providing by statute that his license shall be void.</p>

Complaint, to the First District Court of Eastern Middlesex, alleging that the defendant, on January 1, 1892, and on divers other days and times between that day and February 26,1892, the date of the complaint at Malden, unlawfully exposed and kept for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth. Trial in the Superior Court, before Fessenden, J., who allowed a bill of exceptions, in substance as follows.

Complaint, for unlawfully exposing and keeping for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth, on March 25, 1892, at Boston. Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.

<p>Oleomargarine — Sale from Wagon without Placard “on both sides”— Statute.</p> <p>A complaint under the St. of 1891, c. 412, § 4, for selling oleomargarine from a wagon, at a time and place named, the defendant “ not having then and there on both sides of said vehicle the placard, in uncondensed Gothic letters not less than three inches in length, ‘ Licensed to sell Oleomargarine,’ ” is supported by proof that the defendant’s wagon was a covered one, with the front and rear ends open; that on the inside of the cover on each side was a placard, in form and size such as the statute requires; that these placards could be seen from the front and rear of the wagon, but could not be seen from the sides thereof; and that there were no placards on the outer sides of the wagon.</p> <p>At the trial of a complaint under the St. of 1891, c. 412, § 4, for selling oleomargarine from a wagon, at a time and place named, the defendant “not having then and there on both sides of said vehicle the placard, in uncondensed Gothic letters not less than three inches in length, ‘ Licensed to sell Oleomargarine,’ ” the defendant has no ground of exception to the refusal of the judge to rule that this section of the statute “is in conflict with the act of Congress of August 2, 1886, and the rules and regulations of the commissioner of internal revenue thereunder, and is therefore unconstitutional and void.”</p>

<p>Poor Debtor — Commitment to Jail for Contempt — Habeas Corpus — Statute.</p> <p>A commitment of a poor debtor to jail for contempt, under the provisions of the St. of 1890, c. 128, is merely a proceeding in aid of other statutory provisions relating to the collection of judgment debts, and the debtor may obtain his discharge in any of the ordinary methods applicable to an arrest upon an execution; and there is nothing unconstitutional or illegal in such an imprisonment.</p>

<p>Benefit Certificates — Statute — Resulting Trust.</p> <p>A husband took out two benefit certificates in a mutual aid society, incorporated under the Pub. Sts. c. 115, and subject to the St. of 1885, c. 183, each certificate being payable to his wife, who died before him, leaving no issue. Held, that as there was no statute giving the wife a vested interest in the certificate, or no provision therein giving a right to her representatives, the contract was to be construed as payable to the wife only in case of her surviving her husband, and, that contingency having failed, there was a resulting trust in favor of his estate.</p>

<p>Personal Injuries — Crank of Hand-car.— Assumption of Risk—Variance.</p> <p>In an action against a railroad company for personal injuries occasioned to the plaintiff by being thrown from a hand-car in consequence of his clothing being caught by the crank of the car while he was turning the same, there was evidence tending to show that the part of the crank which was taken hold of consisted of a wooden piece through which passed an iron bolt on which the wooden piece turned as the crank revolved; that this iron bolt passed through the arm of the crank, and projected on the other side in all an inch and a half; that the part which projected had a thread cut on it, and a nut screwed down to the arm, the nut being half an inch thick, and the threaded screw projecting an inch beyond the nut. The plaintiff had been in the employ of the defendant for several years as a section hand, and the hand-car on which he was injured had been in use for several days. Held,, that while there was evidence that some other handcars had the end of the bolt welded, and others had the nut at the end of the handle, there was no evidence that a handle made as this one was with a threaded screw projecting beyond the end of the nut was not a well known device, and the fact that it was more dangerous than other devices did not render the employer liable.</p> <p>In an action against a railroad company for personal injuries occasioned to the plaintiff by being thrown from a hand-car in consequence of his clothing being caught by the crank of the car while he was turning the same, the declaration alleged that the pin or bolt became detached from the handle and then became entangled in the plaintiff’s clothing, and that it became detached because it and other parts and attachments of the handle were insufficient and unfit for the use to which they had been applied, while the evidence was that while the plaintiff was turning the crank a bolt at the end of the crank took hold of his coat and threw him over and the car ran over him. Held, that there was a variance between the allegations and the proof.</p>

<p>Personal Injuries — Negligence — Employers’ Liability Act — Evidence — Assumption of Risk by Employee.</p> <p>In an action for personal injuries by A. against B., it appeared in evidence that B. had an arrangement with C. by which C. had charge of a room in B.’s factory in which room A. was at work. C. hired and paid the men, and B. paid C. so much a case for fitting the stock. B. furnished the machinery, including the machine on which A. was injured, power, and everything except labor, and, as B. testified, looked out for the room, though he did not explain the phrase. If the stock was not fit C. informed B., and B. testified that C. had full charge and assumed the responsibility. Whether B. exercised supervision over the work was not clear. He was often about the room and kept the machinery in repair through one D., B. testifying that the arrangement was that he should pay for the repairs, and that C. had the right, if repairs were needed, to go to D. and get a man, and had done so several times; that lie himself had given orders to do so, and had sent out to have some of the machines repaired after something that O. had told him; that he relied on C. to examine the machinery; that he had the right to inspect the machine himself, and was often in the room; and that he never hired anybody to clean the machines, but supposed C. would do it, though he had no agreement with him. B. also spoke of C. as iiis foreman. "C. testified that he was to look after the machines and have them repaired, but was doubtful whether or not at B.’s expense, and that he had usually notified B. of what was needed, but did not expect B. to inspect the machines as a part of the arrangement. The judge directed a verdict for B. Held, that A. should have been allowed to go to the jury, both on the count at common law and the count under the St. of 1887, c. 270, § 4.</p> <p>The inference from the St. of 1887, c. 270, § 4, plainly is, that the employer shall be liable when a contractor does part of his work and an employee of the contractor is injured by reason of a defect in the condition of the ways, works, machinery, or plant furnished by the employer to the contractor which has not been discovered or remedied through the negligence of the employer, or of some person intrusted by him with the duty of seeing that they were in proper condition. By the negligence of the employer is meant his own negligence, in distinction from that of his servant or superintendent, which is included in the latter part of the same sentence in which the negligence of the employer is spoken of.</p> <p>In an action for personal injuries it appeared in evidence that for a part of three years before the accident the plaintiff had worked upon a-machine like that upon which he was injured; that he was twenty-five years old at the time and of ordinary intelligence; and that he knew that there was no automatic guard on the maciiine and no way of preventing the head block from coming down if the machine was out of order. Held, that, having assumed the risk of operating the machine without a guard, the plaintiff could not now claim that one should have been put on.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ as a freight brakeman, by coming in contact with the wooden awning projecting from the defendant’s passenger station at Greenfield. Trial in the Superior Court, before Hopkins, J., who, at the close of the testimony, ordered a verdict for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion.

<p>Contract, by writ dated March 12, 1890. The first count of the declaration was for sixteen thousand five hundred dollars, being money had and received by the defendant to the use of the plaintiff for three years’ rent of the premises in question. The second count was as follows:</p> <p>“ And the plaintiff says the defendant executed and delivered to him a written lease of a certain store, numbered 101 on State Street, in the city of Chicago in the State of Illinois, whereby the defendant, in consideration of a certain rent to be paid by the plaintiff, let said store to the plaintiff for the term of three years, and covenanted that plaintiff should have possession of said premises during said term, and should have the quiet enjoyment thereof; yet the defendant, wholly unmindful of said covenant, took possession of said premises, and excluded the plaintiff therefrom, and let the same to other persons throughout the whole of said term, whereby the plaintiff has lost the enjoyment of said premises and the profits thereof.”</p> <p>The answer alleged that the plaintiff had violated the conditions of the lease, and forfeited all rights thereunder, and that all money received as rent by the defendant was received not to the use of the plaintiff, but of the defendant, and of the owners of the premises in whose behalf the defendant acted in making the lease.</p> <p>Trial in the Superior Court, before Bond, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff introduced in evidence a lease from the defendant to the plaintiff of certain premises in Chicago, dated March 11, 1880, for a term beginning with that date and ending on April 30,1883, for the rent of five thousand dollars per annum. The plaintiff also put in evidence the following letter, written by him to the defendant, dated Boston, March 22, 1880:</p> <p>“ I signed a lease of store 101 State St. in your city at $5,000 per year subject to reference to be approved by you, my individual resources is not sufficient to engage in business without the approval of Mr. Dwight Prouty, who I gave you as my backer, and also to whom I referred you, he withheld his support in the matter much to my disappointment, as I could not go on without his aid in matter of credit, in coming back from your city I submitted the proposition to him and he at once refused, and I supposed wrote you to that effect, as the signing of the lease by Mr. Hale depended on my references I gave it up as settled that you would not forward the lease under the circumstances of Mr. Prouty’s disapproval.”</p> <p>No reply was received by the plaintiff to this letter. The plaintiff did not go to Chicago after the execution of the lease, and never entered upon the premises, or requested or demanded possession, or paid or offered to pay any rent for the same.</p> <p>The plaintiff also introduced in evidence the record of the Superior Court for this county in the suit of the defendant against the plaintiff, showing that the defendant recovered judgment against the plaintiff for five thousand dollars, being one year’s rent. The plaintiff further introduced evidence that in August, 1886, the defendant caused an execution on the judgment to be levied upon the property of the plaintiff, who on August 5,1886, filed in the Supreme Judicial Court a petition for a review of the judgment and for a supersedeas of the execution ; that a writ of supersedeas was issued upon the plaintiff giving a bond with sureties as required by statute, and the petition for review was afterwards dismissed. Suit was afterwards entered in the Superior Court upon the bond, and it was ordered that judgment thereon should be suspended to enable the plaintiff to bring this action and try the same, to allow an offset of judgment as provided by statute. The amount for which execution should issue in the suit on the bond was $7,136.38, being the amount of the original judgment for one year’s rent, with interest to February 19, 1890, and costs.</p> <p>It appeared in evidence, that on May 12, 1880, the defendant made a written lease of the premises described in said lease to the plaintiff, one half to one Hall at an annual rent of $1,800, and the other half to one Campbell at an annual rent of $2,200, to April 30, 1881; that in February, 1881, the defendant, with others interested in the block of buildings in which the leased premises were situated, conveyed the same in fee to one Higgins by deed, in which the defendant reserved the rents from Hall and Campbell to March 1,1881, and that the defendant received as rent from Hall and Campbell, from May 12,1880, to March 1, 1881, $3,222.22, and that he laid out one hundred dollars upon t.he premises to fit them for two tenants; and that at about the time of making the deed to Higgins the defendant made leases of the premises to Hall and Campbell, respectively, for one year beginning May 1,1881, and ending April 30, 1882, by which they were to pay an aggregate rental of five thousand dollars per year, which was paid to Higgins, and that Higgins rented the premises to Hall and Campbell for the term of two years, beginning May 1, 1882, and ending April 30,1884, at an aggregate annual rental of seven thousand dollars. The evidence as to the lease from May 1, 1882, to April 30, 1884, was introduced subject to the objection and exception of the defendant. There was evidence tending to show that the entire rent reserved in the lease last mentioned was not paid, and that the tenants who occupied the store at the time of the execution of the lease to the plaintiff continued to occupy it till May 1, 1880, and paid rent to the defendant.</p> <p>It was not claimed by the defendant that the plaintiff ever consented to the leasing of the store to Hall and Campbell, or that the defendant ever accounted to the plaintiff for any part of the money received by him from Hall and Campbell. The leases to Hall and Campbell were substantially the same in form as the lease from the defendant to the plaintiff.</p> <p>The defendant requested the judge to rule that the plaintiff was not entitled to recover anything; that there was no eviction, and the plaintiff was not entitled to a verdict on the second count; that if the plaintiff did not enter upon the premises, and did not intend to enter thereon or occupy the same under his lease, he cannot maintain the action upon the second count; that if the plaintiff did not enter upon the premises, and did not intend to enter thereon or occupy the same under the lease, he is not entitled to more than nominal damages, if anything, under the second count; that if the plaintiff did not enter upon the premises, he cannot maintain the action upon the second count; that if the plaintiff is entitled to more than nominal damages under the second count, and if the jury find an eviction by the defendant, the plaintiff can recover no more than the difference between the rent which he agreed to pay under the lease and the actual value of the leasehold estate at the time of the eviction ; that if the jury find an eviction by the defendant, and if the plaintiff is entitled to more than nominal damages, he can recover no more than the difference between the amount which he agreed to pay under the lease and the value of the estate which he acquired under the lease at the time of the eviction; that if the jury find that there was an eviction of the plaintiff, and that he is entitled to recover under the second count, he is not entitled to a verdict upon the first count; that if there was a breach of the covenants of the plaintiff, the defendant had a right to enter upon the premises and take possession thereof, and the plaintiff is not entitled to any damages therefor; that if the plaintiff was not disturbed in his possession, there was no eviction, and if he never entered under the lease, or intended so to do, there was no eviction ; and that if the plaintiff did not quit the leased premises in consequence of the acts of the defendant, he is not entitled to recover for an eviction.</p> <p>It was agreed that if the plaintiff was only entitled to recover on the first count, judgment should be entered for the sum of $3,122.20, with interest from the first day of March, 1881. The case was therefore submitted to the jury on the second count.</p> <p>The judge ruled that there was an implied covenant for quiet enjoyment in the lease, and if the defendant, by reason of the leases and conveyance of said premises, intentionally put it out of his power to deliver possession of the leased premises to the plaintiff, the defendant was liable to the plaintiff, on the implied covenant for quiet enjoyment, for the loss of his bargain, and instructed the jury that the rule of damages for the first year of the lease was the proportionate part of the rent reserved in the lease for one year (five thousand dollars) for the time between May 12, 1880, and April 30, 1881, to which sum should be added such sum as the jury should find the rental value of the leased premises to be, for the time from May 12, 1880, to April 30, 1883, over the amount of rent reserved in the lease.</p> <p>No exceptions were taken to the instructions of the court except such as are implied by the refusal to instruct the jury as requested by the defendant.</p> <p>The jury found for the plaintiff, and assessed the damages in the sum of nine thousand four hundred and forty-five dollars and twenty-two cents.</p> <p>If the plaintiff was not entitled to recover, judgment was to be entered for the defendant. If the plaintiff was only entitled to recover on the first count, judgment was to be entered for the plaintiff for the sum of $3,122.20, with interest from March 1, 1881. If the plaintiff was entitled to recover on the second count any greater sum than S3,122.20, and interest as aforesaid, and there was no error in the exclusion of evidence, or in the refusal to rule as requested by the defendant, or in the instructions to the jury excepted to, then judgment was to be entered upon the verdict. If there was error in said rulings and refusal to rule, the Supreme Judicial Court should make such order as law and justice might require.</p>

<p>Tort by the plaintiff, as the next of kin dependent, to recover for the death of her son, William D. Browne, under the St. of 1887, c. 270. Trial in the Superior Court, before Maynard, J., who directed a verdict for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion.</p>

Tort, by the widow of William J. Irwin, under the St. of 1887, c. 270, and the amendment thereof, for causing his death on November 24, 1890. At the trial in the Superior Court, before Braley, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Contract for money had and received, with a count in tort for the conversion of certain shares of stock. Answer: 1. A general denial. 2. A discharge in insolvency. Trial in the Superior Court, without a jury, before Mason, C. J., who allowed a bill of exceptions, in substance as follows. It appeared in evidence that the defendants, constituting the firm of F. A. Hawley and Company, formerly bankers and stockbrokers in Boston, failed in May, 1884.

<p>Contract — Patent — Action.</p> <p>In October, 1883, B. made the following written agreement: “ Received of A.” a certain sum “in full payment for all filters and water-cocks made to date, it being understood A. shall own one undivided half of any patent and improvements that maybe made on said filters; also” a certain sum “for which I am to assign one undivided half of loom-check patent, which is already allowed.” To this was added an oral agreement that, if A. would furnish the money necessary for improving and perfecting the filters and water-cocks mentioned and for manufacturing them for sale, B. would do the work necessary to perfect and develop the invention for the benefit of A. and B. jointly, do the business of manufacturing and selling the filters and water-cocks, and would pay A. one half of the net proceeds of the sale. Under this agreement, in 1883 and 1884, A. laid out several hundred dollars “ for perfecting hydraulic filtering faucet, and for manufacturing filters and water-cocks.” In the summer of 1884, B. got a patent on the water-cock and filter combined in one patent. Later in the same year, B. sold the patent and all the water-cocks he then had for several thousand dollars, and fraudulently concealed the fact until within six years of the date of an action by A. against B. to recover A.’s share of that sum. Held, that an action for a share of the proceeds could be maintained.</p>

<p>Personal Injuries— Gas Company — Evidence.</p> <p>In an action against a gas company for personal injuries occasioned by its alleged negligence in the conduct of its business, a printed notice issued by it to gas consumers, calling attention to the liability of leaks from the digging up of the streets by various corporations, and requesting compliance with certain rules, and which was distributed by its agents within a year before the accident, is admissible in evidence.</p>

<p>Personal Injuries — Railroad — Licensee— Unblocked Frog — Negligence — Law and Fact — Evidence.</p> <p>An employee of a railroad corporation, who is engaged in delivering a car to another railroad corporation upon the latter’s tracks in the regular course of business between the two corporations, is not a mere licensee.</p> <p>If an employee of a railroad corporation is injured by having his foot caught in a frog in the track of another railroad corporation, while engaged in delivering a car to the latter upon its tracks in the regular course of business between the two corporations, it is a question for the jury, in an action against the last named corporation for the injury, whether the defendant was negligent in leaving the frog unblocked, there being evidence that the defendant had assumed the duty of blocking all the frogs, and keeping them blocked, for the safety of its own employees, as required by the St. of 1886, c. 120.</p> <p>In an action against a railroad corporation for personal injuries occasioned to an employee of another railroad corporation, by having his foot caught in an unblocked frog in the track of the former corporation, while engaged in delivering a car to the latter upon its tracks in the regular course of business between the two corporations, it appeared that the frog was about twenty-eight feet distant from the end of a passenger station at a junction where the roads of the two corporations crossed each other. There was evidence from the section, master in charge of the blocking of frogs'at this place, from which it might be found that he had not noticed for three or four days whether the frog which caused the accident was blocked or not; and other men under him were not called as witnesses upon this point. It was also contended, from the appearance and testimony of the section master, that he was not to be believed when he testified that he had blocked this frog shortly before the accident; and it was further argued that other frogs near by were also left unblocked. Held, that it was open to the plaintiff to contend that, if this frog had ever been blocked at all, it had not been in that condition recently before the accident; and if not, that it might be inferred that the defendant or its agents or servants knew or ought to have known the fact.</p> <p>In an action against a railroad corporation for personal injuries occasioned to an employee of another railroad corporation, by having his foot caught in an unblocked frog in the track of the former corporation, while in the performance of his duties in delivering a car upon its tracks, a photograph taken the next morning after the accident, which occurred in the evening, showing the condition of other frogs near by, having been put in evidence without objection, is competent to be used to show 'that the other frogs were unblocked, the defendant's section master having testified, in substance, that he kept all the frogs blocked, including the one which caused the accident.</p> <p>In an action against a railroad corporation for personal injuries occasioned to the plaintiff, resulting in his losing both legs below the knees, a physician testified, without objection, that he had recommended the plaintiff to go South or West for the recovery of his health; that it was necessary that a person should go from here with him; that he was in the incipient stages of consumption; and that, while his injuries would not directly produce this disease, they would produce a .condition of body favorable to its development. He was then allowed, against objection, to testify as to the price for the services of such a trained nurse as would be competent to take care of the plaintiff. Held, that the defendant had no ground of exception.</p>

<p>Promissory Note — Release — Consideration — Evidence — Action — Bar.</p> <p>In an action upon a promissory note, by the payee against the maker, it is competent for the plaintiff to prove that the note was given to him as a part of the consideration for an instrument of release executed by him to the defendant, in addition to the consideration mentioned therein.</p> <p>A promissory note, payable to an executor in his own name, without his official designation, may be enforced against the maker, although founded upon a con; sideration moving from the payee as executor.</p> <p>A release of all debts, demands, actions, and causes of action existing at its date is not a bar to an action by the releasor upon a promissory note given to him by the releasee as a part of the consideration for the release, and of even date therewith.</p>

<p>Appeal, from a taxation of costs in an action of contract begun in the Municipal Court of the city of Boston against the maker and the indorser of a promissory note, and in which one answer was filed for both defendants. Judgment was rendered for the defendants, and the plaintiff appealed to the Superior Court. Only one bill of costs was taxed for the defendants in the Municipal Court.</p> <p>In the Superior Court, the defendants filed separate answers, setting up the same defence, and the indorser setting up an additional defence of no notice of non-payment by the promisor. At the trial, without a jury, the court found for the defendants. A separate bill of costs was taxed by the clerk for each defendant, and, on appeal to the court, the taxation was affirmed ; and the plaintiff appealed to this court.</p>

<p>Motion for New Trial — Rule of Superior Court.</p> <p>The Superior Court has no power to grant a motion for a new trial made by a party to an action, if the moving party has failed to comply with a rule of that court requiring him to cause a copy of the motion to be delivered to the adverse counsel on the day the same is filed.</p>

Contract, upon an account annexed, to recover a commission for selling the defendant’s farm in Sherborn. The answer, among other things, alleged that the plaintiff, by conspiracy with certain other persons, fraudulently induced the defendant to execute an agreement to sell the farm to one of such persons for a price much less than its market value.

Tout, for personal injuries occasioned to the plaintiff by reason of falling on a sidewalk situated in a highway which the defendant was bound to keep in repair.

Petition, filed May 26, 1892, by Albert Metcalf, Gilbert A. Tapley, and Joseph A. Jackson, for a writ of mandamus to the mayor and city council of Boston and the superintendent of streets of the city. Hearing before Allen, J., who, at the request of the parties, reserved the case for the determination of the full court. The material facts appear in the opinion.

Three Actions. The first case was an action of contract, the declaration in which contained two counts, the first of which alleged that, on October 5,1885, the defendant, August Oschwald, and George P. Upham entered into a written lease, a copy of which was annexed, of the basement of the building situated on the corner of Devonshire Street and Milk Street, in Boston, for a term of five years; that, by the terms of the lease, the defendant and Oschwald agreed to pay an…

Tort, for personal injuries. At the trial in the Superior Court, before Bishop, J., there was evidence tending to show that the defendant, who was a livery stable keeper, owned two estates and buildings, Nos. 35 and 37 on Chapman Street in Boston. There was a passageway three or four feet wide between these two buildings, which was used solely as an entrance from the street to the rooms above the ground floor of the building numbered 35.

<p>Petition of the mayor and aldermen of the city of Northampton, under the St. of 1890, c. 428, for the abolition of certain grade crossings in that city.</p> <p>At the trial in the Superior Court, before Aldrich, J., it appeared that commissioners were duly appointed, and after the filing of their report and a motion to confirm the same, and before the court or any justice thereof had made a final decree in the case, the St. of 1892, c. 811, was passed, which statute is as follows :</p> <p>“ Section 1. In the proceedings now pending in the Superior Court for the abolition of certain grade crossings in the city of Northampton, no change shall be made in the grade of the public ways in said city where the same are now crossed by one or more railroads at grade, without the consent of the city council of said city expressed by vote thereof duly recorded.</p> <p>“ Section 2. Before the court or any justice thereof shall make a final decree in said case a copy of such vote certified by the city clerk shall be filed in said case.</p> <p>“ Section 3. This act shall take effect upon its passage.”</p> <p>No vote required by the first section has been passed by the city council, and no certificate required by the second section filed in the case.</p> <p>The judge ruled that the St. of 1892, c. 311, was not within the power of the Legislature, and void; that the consent of the city council was not necessary to a final decree in the case, and made a final decree confirming the report as to certain streets, and rejecting it as to one street, and reported the case for the determination of this court.</p> <p>The case was argued at the bar in January, 1893, and after-wards was submitted on the briefs to all the judges.</p>

Tort, for personal injuries occasioned to the plaintiff, by being thrown from the seat of a wagon, in consequence of a collision with a street car of the defendant in Boston. Trial in the Superior Court, before Hopkins, J., who directed a verdict for the defendant; and the plaintiff alleged exceptions.. The material facts appear in the opinion.

<p>Replevin of certain articles of machinery sold by the plaintiffs to the defendant, upon a contract which recited that the defendant had received of the plaintiffs the articles, a list of which was annexed, and that, if the price set against them was paid as per memorandum in the margin, they were to belong to the defendant, otherwise to remain the property of the plaintiffs. At the trial in the Superior Court, before Thompson, J., there was evidence tending to show that the defendant had returned to the plaintiffs two items upon the contract, so that- there remained in the defendant’s possession at the time of the taking under the writ, one Fifield lathe, opposite which was set the price of $475, and one Prentice drill, opposite which was set the price of $468. The defendant offered uncontradicted evidence tending to show that money, and merchandise accepted as money, had been paid to the plaintiffs upon the contract before the date of the writ, and before the time of the seizure, sufficient to cover the sum of $475, and whatever costs and interest there may have been upon the same, which $475 was the price of the Fifield lathe. There was no evidence tending to show that any application of the moneys paid by the defendant to the plaintiffs had been made by either party.</p> <p>The defendant asked the judge to rule, that, in case sufficient money was paid under the contract by the defendant to the plaintiffs before the bringing of the writ to pay for the first article in the contract, then the money under and by virtue of the terms of the contract should be applied to the payment of such article, and that at the time of the completion of the payment of a sufficient sum of money to them for the payment of the article, that that article then, under the terms of the contract, became the property of the defendant; and that the plaintiffs had no right thereto, and that the same was unlawfully replevied. The judge refused so to rule, and rendered judgment for the plaintiffs; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries to the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence.</p> <p>At the trial in the Superior Court, before Thompson, J., there was evidence tending to show that the defendant had built on the easterly side of its track, and upon its land between Oak Island and Crescent .Beach, two stations on the line of its road between Boston and Lynn, a plank walk over one thousand feet in length for travellers and those who frequented the beaches to walk upon, and that the southerly end of the walk abutted upon another short plank walk, running from a point one foot distant from the easterly rail of the defendant’s track to a bath-house lying east of the first walk; that there was a railing upon each side of the first walk, and upon both sides of the short walk down to a point five feet and half an inch distant from the easterly rail of the defendant’s track, the railing of each walk uniting, and that the only, convenient way of getting off the first walk was by passing from the first to and upon the second walk, and off that end of the second walk which was next to the rails of the defendant’s track; and that people were accustomed to walk down the said walk built by the defendant, go upon the second walk, and cross over the defendant’s track to the buildings lying on the westerly side of the same. There was no evidence that the short walk was constructed by the railroad.</p> <p>The plaintiff offered evidence tending to show that, on June 27, 1889, the intestate started at about nine o’clock P. M. from Oak Island to go to Crescent Beach, where he was to take a train to Boston in company with three other persons, and in doing so walked down the first named plank walk, and turned on to the short walk to pass over the track to the station, which was on the westerly side of the same, near Revere Street, and that when they reached that point on the short walk where the railing ends, they saw an express train coming from Boston and going towards Lynn, which train was then about two hundred feet away, and moving at about the rate of thirty miles an hour, and that they stopped abreast of the post which supports the end of the railing, and the plaintiff’s intestate stood there with a small portion of his body in front of the post, and a portion of his body abreast of and behind the same, while the train passed by. It appeared that some two or three hundred feet southerly from where the plaintiff’s intestate stood there was a curve in the defendant’s track, so that the train just before peaching said point was caused to go in a more easterly directian, that the engine and two or three cars of the train passed the plaintiff’s intestate, and that the steps of the next car struck him, causing injuries from which he afterwards died. The distance from the post where the plaintiff’s intestate stood to the nearest rail of the defendant's track was five feet and one half-inch; the side of the defendant’s cars extended outwards from the rail of the track a distance of three feet.</p> <p>There was evidence tending to show that the steps of the defendant’s cars extended outward beyond the side of the cars a few inches, varying from one and a half inches to three or four inches, and that the steps of the cars upon other roads did not extend outward beyond the sides of the same. The plaintiff offered evidence tending to show that one of the witnesses for the plaintiff, shortly after the accident, put a stick firmly in the space between the third and fourth planks from the defendant’s track upon the short platform, when a train passed by in the same direction as the one which caused the accident, and that the engine and two cars of the train passed.by without disturbing the stick; but that the steps of the car next following struck the same and broke it. The judge excluded the evidence so offered, and the plaintiff excepted.</p> <p>After the jury were impanelled, they were taken to the place where the accident occurred, and took a view of the location and premises, made measurements of such distances as they desired, saw some of the defendant’s cars, and took measurements of the distances to which the steps of the cars extended outward beyond the sides of the cars, and stood nearly on the spot where the testimony showed the plaintiff’s intestate stood when the accident happened, and saw an express train going from Boston to Lynn pass by that point. There was no evidence that the cars they saw, and the steps they measured, and the train which passed, were the same which caused the accident; but neither party made any objection to the action of the jury. After the plaintiff had rested his case, the judge directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Attorney and Client — Executory Agreement to settle Suit under Mistake of Fact — Specific Enforcement in Equity — Election of Remedies.</p> <p>An executory agreement for a settlement of a suit for personal injuries, which was not made of record in the case, and was in fact made by an attorney at law under a mistake of fact as to bis authority, cannot be specifically enforced in equity against his client.</p> <p>When equitable matter can be used as a defence to an action under the St. of 1883, c. 223, § 14, or as the foundation of a suit in equity to enjoin the prosecution of an action, although a party can elect whether he will proceed in one way or the other, after he has elected to proceed in one way and has taken the opinion of the court upon the merits of the proceeding, he ought not, without good cause shown, to be permitted to abandon that, and to avail himself of the chance of obtaining a more favorable decision by a separate proceeding before another tribunal.</p>

<p>Employers' Liability Act — Loss of Life — Action -—Negligence—Election between Counts.</p> <p>Whether an action for the death of a person occasioned, while employed in a sewer trench in process of construction by a town, by the caving in of the walls of the trench, comes within the St. of 1887, c. 270, § 1, cl. 1, as for a death caused “by reason of any defect in the condition of the ways, works, or machinery connected with or used in the business of the employer,” qucere.</p> <p>In an action under the St. of 1887, c. 270, for the death of C., occasioned while employed in a sewer trench in process of construction by a town, by the caving in of the walls of the trench, the declaration alleged that the defects “ in the condition of the ways, works, or machinery . . . consisted in using decayed, rotten, unsafe, and unsuitable planks and timbers for bracing up the sides of the trench of said sewer; that the said planks and timbers used as aforesaid were placed so wide a distance apart on the sides of the trench of said sewer as to be totally inadequate and insufficient to sustain and keep in place the sides of the trench aforesaid; that at the time said C. was killed the bracing had been negligently and carelessly suffered to remain in place a long time, to wit, the space of twenty-four hours, without being tightened or fixed or made secure, and in consequence thereof had become loose, unsafe, and utterly inadequate to sustain and keep in place the sides of the said trench.” The evidence was, that the planks and timbers used for bracing up the sides of the trench were sound, and there was an abundant supply of material furnished; that the shoring and bracing were entirely in C.’s charge; and that he was paid higher wages than the other workmen to superintend the work; and there was conflicting evidence on the point whether he himself put in the shoring and bracing at the place of the accident. The judge ruled that the plaintiff had failed to make out her case, and directed a verdict for the defendant. Held, that the plaintiff had no ground of exception.</p> <p>In an action under the St. of 1887, c. 270, for the death of C., occasioned while employed in a sewer trench in process of construction by a town by the caving in of the walls of the trench, the first count of the declaration, based upon § 1, cl. 1, alleged certain defects in the condition of the planks and timbers used for bracing up the sides of the trench, in the mode of construction, and in not tightening the bracing on the day of the accident; and the second count, based on § 1, cl. 2, alleged that the negligence of the superintendent “consisted in directing and ordering said C. to work at the bottom ” of the trench, and described the condition of the trench as in the first count. At the close of the evidence, the judge required the plaintiff to elect upon which count she would proceed; to which she excepted, and elected to proceed upon the first count. There was no evidence that the superintendent in charge of the work ordered C. to go into the trench; but the evidence was that C. went into the trench of his own motion. Held, that the plaintiff was not injured by being required to elect on which count she should proceed.</p>

<p>Contract, by the administrators of the estate of Arnold B. Sisson, to recover $5,000 upon a certificate issued by the defendant on September 28, 1883, to Sisson. Mary R. Sisson, a sister of Arnold B. Sisson, appeared as claimant of $2,000 of the fund, under an assignment by her brother to her. Trial in the Superior Court, without a jury, before Blodgett, J., who found for the plaintiffs in the sum of $3,000, and for the claimant in the sum of $2,000; and, at the request of the plaintiffs, reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Supplemental Report of Facts — Fraud — Laches.</p> <p>The principal and latest transaction which the plaintiff shareholders of a corporation sought in equity to set aside was a sale on July 17, 1888, by the defendant corporation, to two defendant shareholders. The bill was filed on October 9, 1889. The number of shareholders was small, their relations to each other were such that the business of the corporation was in a general way known to all, the action of the two defendant shareholders was open and unconcealed, and no stockholder made objection to their participation in formal action for the corporation in transactions with themselves until after innocent third persons had acquired rights in the property and the two defendant shareholders had incurred new obligations with reference thereto. Held, that the inference of loches was justified.</p>

<p>Contract, on a recognizance wherein the defendant’s obligation was that the judgment debtor, John P. Jackson, should within thirty days deliver himself up for examination before some court of record, or police, district, or municipal court, or trial justice, giving notice of the time and place thereof, and appear at the time fixed for his examination, and from time to time until the same is concluded, and not depart without leave of the court or magistrate, making no default at any time fixed for his examination, and abide the final order of the court or magistrate.</p> <p>The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts, the material portions of which appear in the opinion.</p>

<p>Equity — Finding of Judge — Executor’s Account — Appropriation to Trust Fund — Interest— Maintenance — Commissions — Probate Appeal.</p> <p>The findings of a single justice of this court sitting in equity, upon questions of fact, will be sustained by the full court upon a report of the case, unless they are clearly erroneous.</p> <p>A., by his will, authorized and directed his executors to set apart a certain sum from his general estate and invest it for the benefit of his son E., during his life, the fund to be paid over at E.’s death to his lineal descendants, or, if he should leave no descendants, to the trustees of a certain college. The executors, in 1877, invested a smaller sum in the stock of a certain trust company which they testified they intended as an investment for this trust. In 1878, a letter from the secretary of the company which mentioned the issuing of a certificate, referred to the subscription as made by “the estate of A.” The certificate under which they held the stock was in the name of “B. and C., executors of the will of A.,” with no other reference to the trust. Neither of the executors, until 1890, informed E. or any one else that the stock was held as part of the trust fund. A statement of account made by one of the executors in 1882 treated the whole amount of the legacy which was to constitute the trust fund as a liability against the estate, and included the stock subscribed for among the general assets of the estate, and put upon it a certain valuation per share. Until the making of the probate account there was never anything on the books of the executors, either in their accounts with E. or elsewhere, to identify the investment as made on account of the trust fund; and in a conversation one of the executors offered to convey to E. and his sister, the testator’s other child, interested as a legatee under the will, other stock which belonged to the executors to make good a loss from this investment. Held, that there was evidence which well warranted the finding that the executors had failed to sustain the burden of proving an appropriation of the stock to the trust for the benefit of E. and his descendants.</p> <p>A testator devised certain lands to his executors, in trust to sell and pay over a certain sum from the proceeds thereof to a college; the surplus, if any, over said sum he gave to his children. The executors sold the land and before making payment to the college lent the proceeds on interest. Held, that the interest, earned by said proceeds belonged, after settlement with the college, wholly to the children.</p> <p>A testator, by his will, gave to his executors all debts due to him, and all his lands in certain States, in trust, “to collect the debts, and to sell any of the lands as fast as may be necessary for the payment of my debts, and the suitable maintenance of my family until my debts are paid, with the expense of executing this trust to that time.” Held, that the executors were not required to furnish maintenance to the testator’s two children after the expiration of more than nine years from his death, although some debts of the testator were still unpaid, and after the family had been broken up by the residence of his son for nearly two years at one time in a foreign country, and the marriage of his daughter, and the death of her husband, and the subsequent death of her mother, even though the mother until her death, and the daughter during the whole of this time, had continued to live in the homestead, and though the son and daughter were again both occupying the homestead; and that the fact that the executors had made payments to the son and daughter as and for such maintenance after the expiration of said nine years, did not preclude the executors from charging such payments in their probate account against the other interests of said son and daughter in the estate.</p> <p>Upon an appeal from a decree of the Probate Court on an executor’s account, this court will not consider the question whether commissions for services in the management and sale of certain land shall be charged against the proceeds of the land, or against a general fund in the executor’s hands for administration under a clause of the will, which provides, after payment of debts, for payment of pecuniary legacies, the form of the account giving to the legatees no notice of such a question.</p>

<p>Tort for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant city. Trial in the Superior Court, before Braley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It was admitted that the following notice was duly served on the defendant on February 3, 1891: “ Lowell, Mass., Feb. 2nd, 1891. To the City of Lowell in the County of Middlesex and Commonwealth of Massachusetts, a municipal corporation : You are hereby notified that on the tenth day of January, 1891, at ten o’clock in the evening of said day, when I was walking, in the exercise of due care, on the sidewalk on the westerly side of Central Street in said city, and nearly opposite premises on the corner of Central and Centre Streets, occupied by William B. Spalding and numbered (1) one on said Centre Street, I fell and sustained severe bodily injuries, and the fall was occasioned by the rough, uneven, hubby, and ridgy condition of said sidewalk where I fell, by reason of an accumulation of ice and snow thereon. This notice is given for the purpose of fixing the liabilities of said city, as I claim compensation for injuries sustained by me as aforesaid. Mary Conners, by John J. Pickman, her Atty.”</p> <p>It was also admitted that Central Street was a public highway, which the defendant was bound to keep in repair, and was one of the main thoroughfares of the city, and extensively travelled by the public. The plaintiff put in evidence a plan, by which it appeared that Centre Street was thirty-four and six tenths feet wide, including the sidewalk, and leading westerly from Central Street; that the premises of Spalding, including the dwelling-house occupied by him on the comer of Central and Centre Streets, and the land connected therewith, extended from the intersection of the westerly line of Central Street with the northerly line of Centre Street sixty-three and one half feet northerly on Central Street and forty-one and two tenths feet westerly on Centre Street; that the sidewalk in front of Spalding’s premises on Central Street was nine and seven tenths feet wide; and that there was a gutter connected with the dwelling-house of Spalding across the sidewalk. The plaintiff’s evidence tended to show that the place where she received her injuries was on the sidewalk on the westerly side of Central Street, at some point included within a distance of seven feet next northerly of the gutter and opposite the premises of Spalding; that the defect was an accumulation of ice and snow, which extended in a northerly direction from the gutter about seven or eight feet.; that the ice was from three to five inches in height at the highest place; that it was rounded at the top and in ridges of irregular shape and formation, which extended from the inside of the walk to the centre of the same; and that it had so existed for some days prior to the accident.</p> <p>It was admitted that there were other premises on the westerly side of Central Street northerly of Spalding’s premises, and also south of Spalding’s premises on Central Street, commencing with the southerly line of Centre Street. The jury took a view of the premises.</p> <p>The defendant offered no evidence, but, at the conclusion of the plaintiff’s case, asked the judge to rule that, on the evidence, there was an inaccuracy in stating the place of the plaintiff's injury; that there was no evidence offered to show that there was no intention to mislead, and the defendant was not in fact misled thereby; and that, upon all the evidence in regard to notice, the plaintiff could not recover. The judge declined to rule as requested.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract, by the depositor for the use of her assignee, to recover the amount of a deposit in a savings bank. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts, in substance as follows. During the year 1887 and thereafter Mary Ann P. Weld had on deposit with the defendant the principal sum of $1,000, the savings-bank book issued to her being numbered 18,420.

<p>Tort, for the conversion of a lot of furniture, etc., the contents of a hotel in Mattapoisett.</p> <p>At the trial in the Superior Court, before Bond, J., it appeared in evidence that William H. Stimpson, the plaintiff’s intestate, who died about January 1, 1888, had owned the property in question, and that the plaintiff herself and George R. Stimpson, her adopted son, who, it appeared, was her fully authorized agent to manage her property and to sell the personal property in question, were the only witnesses as to the title of the plaintiff, and testified that William H. Stimpson did not, to their knowledge, sell this property during his lifetime. It also appeared that the hotel in question, and the land on which it stood, had belonged to William H. Stimpson, and that he had given his wife, Elizabeth Stimpson, the furniture the subject matter of this suit, during his lifetime, not by any conveyance in writing, or by the agency of or delivery to a third person, but by a verbal gift direct to his wife, and that the plaintiff and George R. and Maria W. Stimpson, his wife, had assumed that such gift was valid, and that Elizabeth Stimpson owned the furniture. It further appeared that Elizabeth was appointed administratrix on or about January 1, 1891, for the purpose of bringing this suit; that the suit was brought in that month; that, by mesne conveyances, the real estate had come into the name of Maria W.; that in the fall of 1890 the real estate was put by Maria W. in the hands of one Nason, an agent, to be sold; that at the same time Nason was authorized (if the plaintiff at that time had power so to authorize) to sell the personal property, the subject of this suit, and that Nason was instructed to sell either the hotel alone or the hotel with the furniture.</p> <p>It further appeared that George R. Stimpson was the owner of certain articles of furniture within the hotel, to wit, one gas machine, office counters, one common chamber set, and the gas fixtures in the house, as appeared by enclosure in a letter of October 30, 1890, written by George R. Stimpson to the defendant in this action, a copy of which is hereinafter contained; that, in pursuance of such instructions, Nason, on October 7, 1890, made a written contract between Maria W. Stimpson, in her own right, and the defendant, whereby the said Maria agreed to sell the real estate, including the building and stable and “ all the personal property in said house belonging to me,” full possession to be given at the time of the delivery of the deed, October 17, 1890, “and the bill of sale of all the personal property in said house”; and that on or about October 23 Maria W. and Nason went to Plymouth, and there delivered to the defendant a deed of the real estate, properly executed by Maria W., and a bill of sale, of which the following is a copy *.</p> <p>“ Boston, Oct. 23, 1890. Received of Robert E. Achorn one dollar, in full for the furniture in the Mattapoisett House belonging to me, the same that was included in the sale of said property. George R. Stimpson.”</p> <p>The defendant offered to show by one Bowles, who was called by him as a witness, that William H. Stimpson, the plaintiff’s intestate, during his lifetime told Bowles that he (William H. Stimpson) had put all his (William H. Stimpson’s) property out of his hands, both real and personal. On the plaintiff’s objection the judge excluded the evidence, and the defendant excepted. It was not suggested by the defendant that this statement referred to any other disposition of the personal estate than the gift to the wife, Elizabeth Stimpson. It appeared further that on October 23, 1890, the deeds called for by the agreement were passed, and the cash called for paid at Plymouth ; that at the time there were present Maria W. Stimpson, Nason, and the defendant ; and that at the time of signing the agreement and at the time of passing the deeds and the paying the cash the defendant was occupying the real estate, and was in possession of the personal property in question as assignee of a lease by the lessee of the property which had expired or was about to expire. Nason, among other things, testified that in the spring of 1890 he went to Mattapoisett with George R. Stimpson to examine the hotel and furniture; that George R. Stimpson told him to advertise the property and sell it by private sale, the hotel and furniture; that he (Nason) supposed that the furniture — now the subject of this suit — belonged to Elizabeth Stimpson in her own right, that during the summer of 1890 he saw the plaintiff at his own office and house a good many times, and had talks with her about the Mattapoisett Hotel and furniture in it, and that she told him to sell the personal property and the real estate, — to sell the personal property with the house ; and that at the time of executing the written agreement on October 7,1890, the defendant spoke of the personal property, and the words “ and the bill of sale of all the personal property in said house” were interlined in the agreement by him (Nason) and before the agreement was signed. George R. Stimpson testified that the words “ and bill of sale of all the personal property in said house,” which were inserted in a printed blank in the handwriting of Nason after the words “ full possession of the said premises,” etc., were not in the agreement when the same was shown to him at some time between October 7 and October 23 by Nason, and that the agreement had at that time been signed by both Nason as agent and by the defendant. Nason further testified, that in Septemtember, 1890, while negotiations for the sale were going on, he reported to George R. Stimpson the defendant’s offer of $6,000 for “ the hotel property,” and that he (Nason) as George R. Stimpson’s agent had refused the offer, and then asked for instructions. In reply, George R. Stimpson authorized him (Nason) to sell at $6,500, — “ told me to sell the property to Mr. Aehorn for $6,500, or, if I could n’t do any different, in case I could n’t get $6,500, let him (Aehorn) split the difference ($6,250), including the furniture.”</p> <p>George R. Stimpson testified that Nason told him that he thought he could get $6,500 for the house without the furniture, and that Nason then asked, “ Suppose I could get you $6,000 clear for the house, and my commission above that?” and said, “ I will get my commission clear over and above $6,000, and the furniture not to go ”; that a question was raised by Nason as to the ownership of the gas fixtures and the gas machine, and that Nason asked Stimpson if he owned any furniture in the house; that Stimpson replied that he did own 'one chamber set, and, to avoid any question, would give a bill of sale of the gas fixtures and the gas machine, and throw in the chamber set, and that Nason afterwards showed him the agreement, and that Stimpson then said, “ It is signed for Maria W. Stimpson, and she don’t own a cent’s worth of furniture ”; Nason said, “ That don’t make any difference to you, does it?” Stimpson replied, “ Certainly; it ought to be what I have got.” Nason replied that it made no difference. Nason testified, that at the time the papers were passed at Plymouth, a bill of sale, the same as printed above, was delivered to the defendant; that there were then present Maria W. Stimpson, J. L. Nason, and the defendant. Nason’s evidence on this point was as follows:</p> <p>“ Q. Will you tell us what you said at that time. A. I called for the bill of sale of the personal property that I prepared the Saturday previous for them to sign and have at the record office with him. When we went down in the morning, Mrs. Stimpson handed me another bill of sale. It was not the bill of sale that I prepared; it read different. She said Mr. Stimpson prepared it, as he wanted it his way.</p> <p>“ Q. What was said in Mr. Achorn’s presence ? A. She read the bill of sale and delivered it to Mr. Achorn in my presence.</p> <p>“ Q. What did you say to her there that this bill of sale carried ? A. The personal property in the house at Mattapoisett that he was already in possession of.”</p> <p>Maria W. Stimpson testified that George R. Stimpson handed her the bill of sale in Boston, and that she handed the same to Nason while on the train travelling to Plymouth, and that the same was handed by said Nason to the defendant without remark.</p> <p>Maria W. Stimpson further testified that, when the papers were passed, the defendant asked her for a list of the furniture owned by George R. Stimpson and transferred by the bill of sale, and that she promised to send him such list.</p> <p>The day after papers were passed at Plymouth, George R. Stimpson mailed to the defendant, and the defendant admitted receiving, the following letter :</p> <p>“ Boston, Oct. 24, 1890. Mr. Robert E. Achorn. Dear Sir, Mrs. G. R. Stimpson says you spoke to her regarding list personal property belonging to her or myself in the Mattapoisett House that you purchased. I will send you same soon, and that not belonging to us, Mrs. E. Stimpson, the owner, says may remain, if you desire, until she decides to remove it, or should you be ready to furnish, and it be in your way, let her know and she will immediately remove the same, or she will sell you at appraisal by good parties, if it is such as you want. Yours very resp’fly, Geo. R. Stimpson.”</p> <p>On October 30, 1890, George R. Stimpson mailed, and the defendant received, the following letter:</p> <p>“ Boston, Oct. 30, 1890. Mr. R. E. Achorn. Dear Sir, Please find enclosed list personal property sold to you with Mattapoisett House. Shall be pleased to appraise and sell you, or to agree on price, or, if you desire it not at all, will have it removed at your order, but please let me know by return mail surely your decision; should I receive no answer, shall expect you desire it taken out, and shall of course immediately remove same. I will confer with my mother, the owner, upon any suggestion you make and let you know as aforesaid. Yours, G. R. Stimpson.”</p> <p>This letter contained the following enclosure:</p> <p>“ Boston, Oct. 30, 1890. List personal property that was in Mattapoisett House belonging to G. R. Stimpson, as per bill of sale given Robert E. Achorn, viz. (see letter Oct. 30, 1890) : 1 gas machine, office counters, 1 common chamber-set; gas fixtures in house. Recvd payment, by sale hotel. G. R. Stimpson.”</p> <p>The defendant made no reply to either of these letters, or to several succeeding. About December 1, George R. Stimpson went to Mattapoisett, and for the first time learned that the defendant claimed to have purchased the furniture at the time of the purchase of the hotel.</p> <p>At the conclusion of the evidence, the defendant asked the judge to rule as follows: “If the jury find that the plaintiff, either by herself or her agents, knowingly caused or allowed the defendant to believe that, upon the payment by him of the cash agreed upon in the sale of the hotel and the delivery of the deed of the hotel to him, all the personal property belonging to the plaintiff that was there at the time of such payment and delivery in the hotel, should thereupon belong to him, the defendant, and that the defendant while so believing, and while the plaintiff, either by herself or her agents, knowingly caused or allowed him so to believe, paid such cash, and received delivery of said deed, and that the said personal property was, at the time of such payment and delivery, in the defendant’s possession, the verdict must be for the defendant.”</p> <p>The judge refused so to rule, and ruled that “ the only question for the jury was the assessment of damages.”</p> <p>The jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Agreement between Attorneys — Right to sue — Construction of Contract — Instruction— Unsatisfied Judgment.</p> <p>B., the defendant, signed a contract, in consideration of the promise of A., the plaintiff, to do nothing about a claim of A.’s client against B.’s client until the decision of a suit which B.’s client had against C. and D., and which B. was managing. The contract, which was signed by B.’s client, directed B., to whom it was addressed, when he had collected the money on the suit against C. and D. to pay a certain sum to A., and B. signed underneath the words, “ When the above amount is collected, I will pay the same to A.” The money was collected by B.’s client of D. alone, C. being only the surety on D.’s bond. Held, in a suit by A. against B. to recover the amount named in the contract, that the contract was a binding one; that the jury were warranted in finding that the suit referred to was the suit against D.; that it was immaterial that the whole sum owed to B.’s client was not collected; that the instruction to the effect that, if B.’s client forbade A. to pay the order, A. could not recover, qualified by the statement that, if B. had control over the collection, so that he could receive the money or not as he pleased, his allowing his client to receive it would not make it any the less his collection, was correct; and that the fact that A.’s client, after the breach of B.’s agreement, brought a suit and recovered judgment against B.’s Client upon the original claim against him, which judgment was unsatisfied, did not preclude A. from maintaining his action.</p>

<p>Oral Evidence — Mistake in Consideration of Deed — Right to recover Overpayment — Waiver.</p> <p>Oral evidence is admissible to show that a mistake was made in the computation of the consideration of a deed; and the grantee’s right to recover the amount which he has overpaid is not waived by his acceptance of the deed, or by his payment, after the discovery of the mistake, of a note which he gave as part of the consideration of the deed, and which was received by the grantor as cash.</p>

<p>Personal Injuries — Negligence — Inconsistent Evidence — Question for the Jury.</p> <p>In an action for personal injuries occasioned to the plaintiff by an elevator which the defendants used to get their goods to their premises, the plaintiff’s evidence was confused and inconsistent, in that he stated that he did not perceive that the elevator was in motion until he was injured, and also that he saw two of the defendants’ servants start the elevator. These servants were not fellow servants with the plaintiff, who was a teamster employed by a carrier, and not an employee of the defendants. Held, that however much the plaintiff may have contradicted his own statements, and however dull and inconsistent he may have been as a witness, it was for the jury to weigh his statements and find the facts.</p>

Tort for conversion. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, on agreed facts, in substance as follows.

<p>Memorandum of Contract — Sketch — Oral Evidence — Specific Performance —Reasonable Time — Waiver of Defect in Deed.</p> <p>The rule that, for the purpose of interpreting a document, the court may put itself in the position of the parties, and ascertain by oral evidence their relations to any property which would satisfy the terms of the document, and the presumption that the words used to describe land in a contract to convey the same relate to land owned at the time by the vendor, are to be applied in interpreting a sketch which is part of a memorandum of contract for the sale of real estate.</p> <p>A. brought a bill in equity against B. to enforce the specific performance of an agreement to purchase certain real estate on or before April 16, 1891. The agreement contained the statement, “ provided a release cannot be obtained from present mortgagee to complete transfer as above, the interest shall be allowed said B. at the rate of five per cent per annum until such release is obtained from April 16th, 1891. Other terms and conditions remaining the same.” Held, that the premises were to be conveyed on or before the day named, unless a release from the mortgages to which the land was subject could not be obtained by that day, and that, in the latter event, the transfer was to be completed whenever, within a reasonable time, the release could be obtained.</p> <p>A vendee of land, to be conveyed free of encumbrances, who absolutely refuses to accept performance of the contract of sale upon grounds other than the ground of a defect in the deed, cannot afterwards, in an action for the breach of his agreement to purchase, avail himself of any defect in the deed first tendered, a proper deed having been seasonably tendered to him.</p>

Bill in equity, filed October 17, 1891, to redeem land from a mortgage in Belmont. Held: and that by reason thereof persons who might otherwise attend and bid at said sale may be prevented from attending the same and bidding on said property.” The bill further alleged that Alice H. Dennett, wife of Herbert E. Dennett, was the owner of the equity of redemption.

Bill in equity, filed September 10, 1886. The bill alleged: 1.

<p>Personal Injuries — Negligence — Employers' Liability Act — Fellow Servants.</p> <p>An ordinary weaver, whose usual work is merely to operate a loom, is not a person intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence within the meaning of the St. of 1887, c. 270, § 1, cl. 2, merely because it is also his duty, when his loom gets out of repair, to notify the loom fixer to put it in order. The weaver and loom fixer are fellow servants.</p>

<p>Summary Petition to vacate Judgment — Dismissal of Previous Petition no Bar — Objections to Allegations — Evidence.</p> <p>A general request to rule that a petition to vacate a judgment is insufficient in form, is entitled to no more favorable consideration than a demurrer, which must point out any defect of technical accuracy of allegation relied upon.</p> <p>It is no bar to a petition to vacate a judgment that a previous petition was dismissed without prejudice, by reason of certain formal defects and not upon the merits.</p> <p>Technical objections to the form of allegations cannot be taken by objecting to evidence in support of them.</p> <p>The refusal of the Superior Court to continue a case in order to enable one of the parties to examine the clerk of that court, who was not in the court-house at the time and was not summoned as a witness, is not open to exception.</p> <p>Where there is evidence of sufficient cause for a review, this court cannot revise the finding or the discretion of the justice of the Superior Court.</p>

<p>Bill in EQUITY, praying that the defendants, Mitchell and Lindsay, be restrained from disposing in any way, by sale or otherwise, of the real estate described in the bill. Trial in the Superior Court, before Dunbar, J., who reported the case for the consideration of this court, in substance as follows, such decree to be entered as should seem proper.</p> <p>Martha A. Davis was seised in fee of the real estate named in the plaintiff’s bill, from March 11, 1884, until the day of the conveyance by her to Henderson J. Edwards, hereinafter mentioned. In September, 1890, she was under arrest upon a complaint charging her with a criminal offence, and desired to be released on bail. To enable Edwards, who was without property, to act for her as surety upon a bail bond, a conveyance of this land was made by her to him, the deed bearing date of September 1, 1890. It was recorded in the proper registry of deeds on January 22,1891, at ten o’clock and "fifty minutes in the forenoon. Subsequently Edwards became surety for Davis upon a bail bond or recognizance, and she was released from custody on bail. At the time of this conveyance to Edwards, he executed and delivered to her an instrument in writing, in which he agreed to reconvey the land to her when the complaint against her should be disposed of. This paper was never recorded, and the defendants never had any notice of its existence. It was not produced at the trial. On October 3, 1890, upon the hearing of the complaint, Davis was discharged by the Police Court of the city of Somerville, which had cognizance thereof.</p> <p>On said January 22 the defendant Mitchell brought an action at law against Edwards, and on the same day, at ten o’clock and forty minutes in the forenoon, the defendant Lindsay, a deputy sheriff, made an attachment on the writ of all Edwards’s interest in and to any and all real estate in the county of Middlesex; and at twelve o’clock and twenty-seven minutes in the afternoon of said January 22 Lindsay deposited in said registry a copy of the writ, with so much of his return thereon as related to such attachment.</p> <p>On March 16, 1891, Edwards executed, acknowledged, and delivered a release of his interest in the land to Davis, which contained the following statement: “ The above estate having been placed in my name, September 1, 1890, by said Martha A. Davis, as security to protect me on a bond which I signed on that date for said Martha A. Davis, said bond having been discharged, I therefore make this reconveyance.” This release contained no release of dower, and was not signed by the wife of Edwards, and on March 19, 1891, he executed, acknowledged, and delivered to Davis a quitclaim deed of all his interest in said land, which contained a release of dower, and was signed by his wife. Both these last named deeds were recorded in the proper registry of deeds on said March 19.</p> <p>On June 26, 1891, the defendant Mitchell recovered judgment in the action at law against Edwards for $889.65 damages, and $18.69 costs of suit. On July 11, 1891, execution was issued and placed in the defendant Lindsay’s hands, and on July 24, 1891, he made a levy on the land by virtue of the execution.</p> <p>On said March 19, Davis executed, acknowleged, and delivered to the plaintiff Jones a mortgage of the land to secure a note for $625 and interest, signed by her and payable to the plaintiff Jones, and the latter lent to her the sum represented by said note.</p> <p>This mortgage was recorded in the proper registry of deeds on the same day, to wit, March 19, 1891. From the delivery of the deed from Davis to him, until the delivery of the deed from him to Davis, Edwards had the legal title to the land, but he had no beneficial interest therein after the discharge of Davis by the Police Court, on October 3, 1890 ; and after the last named date he held it upon a naked trust, to reconvey the same to her upon demand, but neither of the defendants had any notice of such trust prior to the filing of the plaintiffs’ bill, except the recording of the release from Edwards to Davis above mentioned.</p>

<p>Loan by Married Woman to Husband — Presumption — Insolvent Estates — Claim against Firm A ssets — Note given to Wife by Husband’s Firm — Dismissal of Bill in Equity.</p> <p>If a wife places in her husband’s hands her separate property, the presumption, in the absence of evidence that he receives it in trust for her, or of fraud practised upon her, is that he can use it as his own.</p> <p>If a married woman lends property to her husband and takes from him an obligation indorsed by his partner, the obligation is provable, if at all, only against the separate assets of the insolvent estates of the signers, and she has no claim against the assets of the firm.</p> <p>A note given to a wife by a partnership of which her husband is a member is void as between the original parties, and equity cannot afford relief.</p> <p>If the plaintiff in a second bill in equity does not seek relief, if the first bill is dismissed, then, on the first bill being dismissed, the second is rightly dismissed also.</p>

<p>Will — Devise and Legacy — “Heirs at Law” — Wife as Heir of Husband.</p> <p>After giving the rest and residue of the testator’s property and estate, real, personal, and mixed, to trustees, in trust to manage the same and make and deliver all deeds proper to invest the purchasers with good titles, “ and using the proceeds of all such sales for the purpose hereinafter described,” the will provided: “ When my estate shall finally be disposed of by my said trustees, or the survivor of them, and all collections made that can be made, then my said trustees, or the survivor of them, shall dispose of the net proceeds in their hands by dividing the same among my heirs at law as provided for by the laws of the Commonwealth of Massachusetts. Payments on account of the first settlement I hereby authorize to be made to my wife, daughter, and son.” Held, that the fact that the estate was to be turned into personalty and the proceeds divided among the heirs at law showed that by those words were meant those entitled to succeed to personal estate in case of intestacy; that the last provision as to payments could not be explained except by assuming that the wife was to share as an heir at law with the daughter and son, as provided for by the laws of the Commonwealth; and that this view was confirmed by looking at the earlier parts of the will, in which the testator three times spoke of his “ beloved wife,” and by the fact that, if she was not to be included, she would be cut off with a scanty allowance, much less than she would be entitled to by law.</p>

<p>Eviction of Sublessee — Damages — Injunction.</p> <p>On a bill in equity to restrain a threatened eviction of the plaintiff by the owner of the fee, it appeared that the plaintiff was a sublessee under a lease assented to by the defendant’s predecessor in title and binding on the defendant; that it would not expire for over three years from the filing of the bill; and that the plaintiff had been injured and was threatened with complete eviction when the bill was filed. Held, that the plaintiff should not be confined to recovering damages on the ground that the injury of an injunction to the owner would be incommensurate with the benefit to the plaintiff, and that an injunction should issue.</p>

<p>Covenant of Warranty — Dedication of Land as Public Park — Right of Assignee to sue.</p> <p>A bill in equity was brought upon a covenant of warranty in a deed under which the plaintiff obtained title, which deed was executed by six grantors to two of their number, in trust, whenever required by a majority of the grantors, to convey by deed “ containing a warranty against all persons claiming under them as trustees under this deed.” The covenant in suit was that of the grantors to warrant and defend the premises “ to the said grantees, the survivors of them, their successors and assigns for the purposes aforesaid.” The trustees conveyed to a corporation, with the limited covenants provided for by the words quoted. The corporation having conveyed a part of the tract to the plaintiff, it was alleged that two parcels had been dedicated to the public as public parks by the six grantors before the delivery of their deed, and that the plaintiff had been evicted by a former decree of this court. Held, on demurrer, that a covenant by several with two of their number will not be enforced at law; that although a covenant of warranty running to the grantee, his heirs and assigns, can be sued upon by the assignee in his own name, slid it does not operate as a letter of credit offering a new covenant to whoever will take the land on the faith of it; that the assignee stands as successor to the original covenantee, and takes the original covenant with all its manifest infirmities, and that the covenant sued upon was confined to the trustees and their successors in the trust.</p>

<p>Trust — Heirs — Remainder — Statute.</p> <p>A testator by will gave property to a trustee to pay the income to a son for life, the principal at his decease to go to the son’s heirs. Upon the son’s death he left a widow, but no issue, and as only next of kin three children of a deceased sister. The fund in the trustee’s possession, which was less than three thousand dollars, was made up of the proceeds of both real and personal estate of the testator. Held, that the whole fund went to the widow.</p>

<p>Will— Trust for Charitable Purpose— Provision regarded as Administrative Detail — Omission to name Trustee immaterial.</p> <p>The following clause in a will constitutes a good gift to charity : “ After the said O. is no longer my widow either by death or otherwise, I give and bequeath all that may then remain of my property for the benefit of the inhabitants of E. and vicinity, for educational purposes. One third part of said property to be appropriated for a building and appurtenances, which shall be located on Quivet Neck in E., and the other two thirds to be a fund for the support of said institution, the interest of said fund to be so appropriated. The whole to be under the exclusive control of the inhabitants of Quivet Neck.” The provision as to the “ control of the inhabitants of Quivet Neck ” is not of the essence of the gift, but is only an administrative detail; and it is not necessary that the testator should have named a trustee.</p>

<p>Parent and Child — Recovery by Mother for Loss of Service, Labor performed, and Expenses.</p> <p>A widow with minor children, who keeps the family together and supports herself and them, with the aid of their services, has very much the slime control over them and their earnings during their minority, and is subject to the extent of her ability to much the same civil responsibility for their education and maintenance, as a father.</p> <p>When a minor child lives with its mother, who is a widow, and is supported by her, and works for her as one of the family, the mother is entitled to recover for the loss of services of the child, and for labor performed and expenses reasonably incurred in the care and cure of the child, so far as they are the consequences of an injury to the child caused by the negligence of the defendant.</p>

<p>Tort, for slander. At the trial in the Superior Court, before Thompson, J., after the jury had retired to deliberate on their verdict, the judge sent for them, and in open court, though in the absence of counsel on both sides, gave them further instructions, as follows:</p> <p>“ I intended to call your attention before you retired to the importance of your coming to a verdict in this case. As you learned from the remarks of counsel, this case has been tried before. It is important, both for the plaintiff and for the defendant, that the jury should come to a verdict. The trial of a case is attended with a great deal of expense to both parties, and to the county. This is the mode provided by law for the trial of cases. There is no reason to believe that there will ever be a jury who will be better able to deal with the questions involved in this case than you are, and you ought to come to a verdict if you can conscientiously do so; and in considering the questions involved, you are to approach them with a disposition to agree; you ought to give proper weight to all the evidence. While it is a verdict of each, as well as the verdict of the twelve, you ought, if you can conscientiously, to come to a verdict; you ought not to say, unless you are compelled to, that you cannot come to a verdict. I shall have to ask you to consider the case further, and hope you will be able to arrive at a verdict.”</p> <p>After a verdict for the defendant, the plaintiff filed a motion for a new trial, which motion was denied; and the plaintiff alleged exceptions.</p>

Appeal, by Mary D. McLea, Willis A. Colson, and Marion E. Talcott, as guardian of Bessie and George Colson, from a decree of the Probate Court for Suffolk County allowing two accounts of George C. Leach as trustee under the will of Elizabeth P. Colson. The second account was rendered by Samuel B. Hopkins, executor of the will of George C. Leach.

Appeal by Anna M. Seaver, executrix of the will of Abraham W. Seaver, from a decree of the Probate Court adjudging that, by the death of the appellant’s testator in- the lifetime of Ada-line K. Nelson, under whose will he was a legatee, his legacy lapsed. The case was heard by Holmes, J., who reserved it for the consideration of the full court, on agreed facts, in substance as follows.

<p>Trespass quare clausum, for entering upon the plaintiff’s premises, situated in Salem, on May 1, 1886, and tearing down and destroying a fence thereon. 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 1669, the plaintiff’s land, marked A, extending- southerly from Main Street, now Essex Street, in Salem, as shown on the following plan, was owned by Henry Kemble; the defendant’s land, a part of which is shown on the plan and marked B, was owned by Alexander Sears; the lot designated on the plan as the Advent Church lot, and certain lots southerly thereof not on the plan and known as the Lynde Schoolhouse and the Ward Estate lots, were owned by Francis Skerry; and the lots marked G and D belonged to Humphry Coombs; all of whom derived title, through mesne conveyances, from Richard Raymond, who originally owned the entire tract. In that year Sears, the owner of the land now belonging to the defendant, having died, his administratrix, by deed dated July</p> <p> </p> <p>30, 1669, conveyed to Skerry an interest in a way as follows: “ An interest and propriety in a highway which I have reserved for my own use which is part of that land belonging to my now dwelling house to say ten foote broad and to run between the house and the land of Humphry Coombs on the west and some lately sold to Henry Kemble now in the possession of George Thomas on the east from the highwaye or common on ye north to run south toward the water side to ye orchard of ye said Francis and to run sixty-nine half foot further along by ye side of ye orchard on the east side.” This way extended southerly from Essex Street to a point somewhere opposite the building known as the Lynde Schoolhouse, which was directly south of the Advent Church, and since 1869 its location has remained unchanged, it has been open and in use in connection with the defendant’s land and with the Advent Church, Lynde School, and Ward lots. For more than forty years a fence has been maintained across the way at the northerly boundary of what is now the defendant’s lot, with a gate in it through which the way is used for the purpose of passing back and forth between the defendant’s land and Essex Street.</p> <p>From 1866 to 1883 the plaintiff’s and defendant’s land and lot C were owned by Elizabeth Hodges, and while she owned the three lots she continued to use the way in connection with the defendant’s land. On her death in 1883 her real estate was sold by public auction, and her heirs, one acting by a guardian, on October 8, 1883, conveyed each of the three lots to three different persons. Lot A was conveyed to the plaintiff, the westerly boundary in the deed being “ then turning and running northerly on a courtway two hundred and twenty-one feet to Essex Street,” and the description ends as follows: “with all the rights in common on said court, it being the estate conveyed to Joseph Hodges by deed,” etc. The easterly boundary of lot 0 in the deed made by the heirs to one Odell, who conveyed it to Jones, the present owner, is, “thence turning and running southerly on a courtway one hundred and twenty-seven feet and nine inches, with all the rights in common on said court.” The westerly and northerly boundaries of lot B made by the heirs to the defendant were, “beginning at the southwesterly corner thereof, thence running northerly by land of Ward, and land now or formerly of Forrester, about three hundred and thirty-seven feet, to a way leading to Essex Street; then running easterly fifty-two feet by said way and land of Hodges ”; and the description ends with “ being the same premises conveyed to Elizabeth Hodges by James A. Farless et al. by deed.” In the habendum of each of the deeds were the words “ to have and to hold with all the privileges and appurtenances.”</p> <p>The defendant entered into possession under his deed, and continued to use the way for the purpose of passing from his land to Essex Street, until the plaintiff, who contended that the way had been discontinued, placed a lock on the gate, and prevented the defendant from further using the way. The defendant then, claiming a right in the way, removed the fence, which is the trespass alleged.</p> <p>The judge ordered judgment for the defendant; and the plaintiff appealed to this court.</p>

Tort for the conversion of a horse. At the trial in the Superior Court, before Bond, J., there was evidence tending to show that the defendant, as constable, attached a horse on a writ against Patrick O’Connor as his property. The plaintiff introduced in evidence a bill of sale of the horse to him from O’Connor, who was his brother in law.

Bill in equity, brought under the Pub. Sts. c. 136, § 26 et seq., by the executor of the will of Caroline A. Wood, against the heirs at law and next of kin of Charles Wood, to charge them on a contract made by Charles Wood, whereby he agreed to protect the plaintiff’s testatrix from a certain contract entered into by her.

<p>Passageway — Abandonment— Change of Grade — Description in Deed.</p> <p>A parcel of land was conveyed to the plaintiff by a deed describing the southeasterly boundary as “ a line running longitudinally through the centre of the brick wall between the premises hereby conveyed and the adjoining estate,” and in the same deed was granted “the right of use in common with the abutters thereon of a passageway on the southeast boundary as now laid out, about five feet wide, for any and all lawful purposes.” At that time there was a continuous brick wall on the southeast boundary of the plaintiffs’ land, and the only access to the passageway was by a gate through the wall. The owner of the adjoining estate subsequently lowered the grade of the passageway, and the plaintiffs then closed their gate by building a solid wall, and opened a coal-hole through the wall on the passageway on a level with the new grade. Held, on a bill in equity to restrain the defendants from changing the grade of the passageway, that even if the opening of the coal-hole was unauthorized, and the use of it on the land covered by the party wall was a trespass, the use of the way by the plaintiffs was rightful ever since the closing of the gate, and that the closing of the gate did not constitute an abandonment. Held, also, that if the use of the coal-hole was not only unlawful in itself, but made the use of the passageway in connection with it unlawful, nevertheless such a continuous use of the passage with the knowledge and against the will of the owner of the fee was notice to him, and all concerned, that the plaintiffs’ claim on the way was not abandoned. Held, also, that if the plaintiffs were bound to take any notice of the acts of strangers to the servient tenement, whose land abuts on one end of the passageway, and who have built on a plan which requires the lowering of the way, such notice was manifested by the maintenance of the coal-hole, and the plaintiffs were entitled to a decree restraining them from so changing the grade.</p>

<p>Common Interest in Fund — Suit by one for the Benefit of all — Equity — Reimbursement of Outlay.</p> <p>When many persons have a common interest in a fund; and one of them, for the benefit of all, brings a suit for its preservation, and retains counsel at his own cost, a court of equity will order a reasonable amount to be paid to him out of the funds in the hands of the receiver in reimbursement of his outlay.</p>

Two BILLS IN EQUITY. The first bill sought a partition of water power under the provisions of Pub. Sts. c. 178, § 76. The second, brought by one of the respondents in the first bill against one of the plaintiffs therein, sought to charge the latter on its covenant to enlarge a canal.

<p>Tort, under Pub. Sts. c. 112, § 213, for personal injuries occasioned to the plaintiff by being struck by a locomotive engine at East Somerville, at the Perkins Street crossing of the defendant’s railroad.</p> <p>At the trial in the Superior Court, before Bishop, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while alighting from, a street car of the defendant.</p> <p>At the trial in the Superior Court, before Hopkins, J., the plaintiff testified that she was sitting on the end of a seat in one of the defendant’s open street cars on the right hand side facing the horses; that, as she approached her destination, she arose, motioned to the conductor to stop the car, and then sat down again; that after the car had come to a full stop she stepped on the running board, and then put her right foot to the ground ; that just as her right foot touched the ground, and while her left foot was on the running board and her left hand had hold of the post of the car, the car suddenly started, without any ring of the bell being given, and twisted her round to the left, throwing her to the ground so that she fell on her left side with her left leg under her, severely injuring her. She also testified that she was thrown “ with a jerk,” that she called it a “ jerk,” and that the car had stopped before she attempted to leave her seat to alight.</p> <p>Witnesses for the defendant testified that the plaintiff got off the car while it was slowing up and coming to a stop, and before it had stopped; that it went some three or four feet from the point where she fell before it stopped.</p> <p>The defendant asked the judge to rule that “ there was no evidence in this case that, while the car was coming to a stop, it was started up with a jerk and the plaintiff was thereby thrown to the ground and injured.” The judge so ruled, and the plaintiff duly excepted.</p> <p>The plaintiff contended, and attempted to argue to the jury, that even if the car had not come to a full stop, yet if the plaintiff was injured by its being carelessly started up while she was alighting, it was a question for the jury whether, under all the evidence in the case, she was in the exercise of due care and entitled to recover. The judge refuséd to allow such argument, on the ground that there was no evidence to support such a claim, and, at the request of the defendant, instructed the jury that, “ as the evidence stands the plaintiff cannot' recover unless the jury find that the car had stopped and was standing still when the plaintiff attempted to alight, and that it was started up by the driver before the plaintiff had fully alighted, and that she was thrown to the ground and injured by such starting of the car.”</p> <p>The jury rendered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs to all the judges, except Solmes, J.</p>

<p>Foreign Corporation — Taxation of Bank Deposit — Inhabitant — Statute.</p> <p>A corporation organized under the laws of another State, having an office and doing a large part of its business in a city in this Commonwealth, cannot be taxed on money deposited by it with a national bank in that city, and the provisions of the Pub. Sts. c. 11, § 20, that “All personal estate, within or without the Commonwealth, shall be assessed to the owner in the city or town where he is an inhabitant on the first day of May, except," etc., do not apply.</p>

<p>Personal Injuries — Defect in Sidewalk — Evidence that no Accident has previously happened — Collateral Issues.</p> <p>It is competent for a jury to find in an action against a city for personal injuries that a hole in a sidewalk nearly circular in form, five and one half inches in diameter one way and six inches the other,'and about an inch in depth at the edges and somewhat deeper in the middle, which hole caused the injuries to the plaintiff, is a defect for which the city is responsible under the Pub. Sts. c. 52, § 38.</p> <p>In an action against a city for personal injuries occasioned by an alleged defect in a sidewalk which the city is bound to keep in repair, it is not competent for the city to show that no accident has -previously happened at the place of the alleged defect.</p> <p>In an action against a city for personal injuries occasioned by an alleged defect in a sidewalk which the city is bound to keep in repair, an official who has had charge of the repair of the streets and sidewalks for some years, and who is familiar with the condition of the streets and sidewalks of many of the cities of the Commonwealth, cannot be asked the questions, “ Whether it is common to find in your experience among the cities that you have visited depressions in the sidewalk caused by irregularities in the paving or covering large enough to admit a portion of the foot, —the foot of an ordinary adult % ” “ Is it an infrequent thing to find depressions to exist between flaggings in different parts of the city 1 ” and, “Is it common for depressions to be found in flagged sidewalks large enough to insert part of the foot ? ”</p>

Bill in equity, to restrain the defendant from enforcing a mechanic’s lien by the sale of the premises, or otherwise, so far as the same was claimed for a certain sum tendered to the defendant and declined by him. The defendant demurred for want of equity. In the Superior Court the demurrer was sustained, and the bill was dismissed; and the plaintiffs appealed to this court. The facts appear in the opinion.

<p>Dissolution of Partnership — Bond — Equity.</p> <p>A bill in equity brought by A. against B. alleged that they were partners, that, on the day of the dissolution of the partnership, A. as principal, with C. as surety, executed a bond to B. for the faithful performance by A. of the contracts of the late firm with its customers; that, to procure C. to sign, A. had to deposit with him a certain sum of money; that the conditions of the bond had all been performed; that B. had had notice and been offered proof thereof, which lie had refused to examine; that he had refused to give up the bond on request; and that C. had refused to. deliver the sum paid to him until the bond had been exhibited to him discharged by B. The prayer was that B. be ordered to deliver up the bond discharged'. Held, that the bill was rightly dismissed, with costs</p>

Tort, for personal injuries. The declaration contained two counts, the first of which was as follows: “ The plaintiff says that the defendant is a corporation, duly established by law, and is the owner of certain buildings on Commercial Street in the city of Boston, occupied by various tenants ; that on or about the second day of January, A. D. 1890, the plaintiff occupied a portion of the building numbered 458 in the numbering of the stores and doorways on said Commercial…

<p>Insurance on Building—Increase of Risk — Meaning of “kept” on the Premises — Ordinary Repairs — Question for the Jury—Testimony of Experts — Discretion of Presiding Justice.</p> <p>A policy of insurance upon a church built of wood provided that the policy should be void if without the assent in writing or in print of the company “ the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency, or consent of the insured, be so altered as to cause an increase of such risk.” While a naphtha torch was being used to burn off the old paint preparatory to repainting, the building caught fire and was entirely consumed. The question was whether a change of this kind, increasing the risk with the knowledge, agency, and consent of the insured was an alteration of “ the situation or circumstances affecting the risk ” within the meaning of the policy. Held, that as the change had existed continuously during the working hours of every day for nearly a month, and the work was not nearly done when it was interrupted by fire, the change of the condition was sufficiently long continued to be deemed a change in “ the situation or circumstances affecting the risk.”</p> <p>The word ‘‘ kept,” as used in a policy of insurance which provides that it shall be void if certain oils and burning fluids shall be kept on the premises, implies a use of the premises as a place of deposit for the prohibited articles for a considerable period of time.</p> <p>In the absence of an express stipulation to that effect, a contract of insurance should not be held to forbid the making of ordinary repairs in a reasonably safe way, and provisions to the effect that the policy shall be void if, without the assent in writing or in print-of the company, naphtha or other oils or burning fluids shall be “ used by the insured on the premises insured,” should not be deemed to apply to an increase of risk or to a use of an article necessary for the preservation of the property. Hence, where paint was removed by the use of a naphtha torch from the outside of a building covered with soft pine sheathing tongued and grooved and put on horizontally, and the weather was hot and dry and the boards shrunken so that in some places there were cracks, and the building caught fire and was entirely consumed, the questions for the jury are, “ Whether the company, if familiar with the condition of the building and the methods usually adopted in making repairs, should have contemplated when it issued the policy that the insured would burn off the paint at such a time and in such a way as it did? Was such a use of naphtha a reasonably- safe and proper way of making repairs on the building under the circumstances ? ”</p> <p>A policy of insurance contained a provision that it should be void if, without the assent in writing or in print of the company, naphtha should be used by the insured on the premises insured. While a naphtha torch was being used to burn off the old paint preparatory to repainting, the building caught fire and was consumed. Held, in an action on the policy, that, as bearing on the question whether the use of a naphtha torch would increase the risk, the company- might show, if it could, by an expert in regard to the rates of premium for fire insurance, that the rates on a building whose paint was to be removed from the outside by the use of such a torch would be higher than if there was to be no such use; but that the expert could not be asked his opinion as an expert as to the actual effect of the use of naphtha in reference to danger from fire.</p> <p>A policy of insurance contained a provision that it should be void if, without the assent in writing or in print of the company, naphtha should be used by the insured on the premises insured. While a naphtha torch was being used to burn off the old paint preparatory to repainting, the building, which was covered with soft pine sheathing, tongued and grooved and put on horizontally, caught fire and was consumed. Held, in an action on the policy, that the testimony of experts in regard to the proper and usual way of removing paint was rightly admitted. Held, also, that, as it is largely within the discretion of the judge to determine how far to go into the trial of collateral issues, he could exclude the question, “ Whether or not the sheathing of the church caught fire at any time previous to the day the church was burned by the use of the torch ? ”</p>

<p>Petition to establish the truth of exceptions alleged by Charles S. Joslin, who was found guilty upon certain counts in an indictment charging him with unlawfully exposing and keeping for sale intoxicating liquors with intent unlawfully to sell the same, and with unlawfully selling intoxicating liquors to minors. The exceptions sought to be established were disallowed by Bond, J., who presided at the trial in the Superior Court. Such facts as are material to the points decided upon the defendant’s petition appear in the opinion.</p> <p>The case was argued at the bar in October, 1892, and after-wards was submitted on the briefs to all the judges.</p>

Indictment charging the defendant in the first count with unlawfully exposing and keeping for sale intoxicating liquors from May 1, 1891, to the first Monday of November, 1891, and in the sixth and seventh counts with unlawfully selling intoxicating liquors to one Henry Bishop, a minor. Trial in the Superior Court before Bond, J., who allowed a bill of exceptions, in substance as follows.

<p>Petition for a writ of mandamus to compel the city of Boston and its mayor to convey Mount Hope Cemetery to the petitioners, in accordance with St. 1889, c. 265.* Upon motion, John Taylor and others, owners of lots in said cemetery, who had paid to the city certain sums of money, which constituted part of the funds mentioned in § 4 of said act, and held by the city in trust to use the income in the perpetual care of lots, were permitted to appear as respondents and file an answer. Hearing before Knowlton, J., who made certain findings of fact, and reserved the case for the full court on the petition, answers, and such of his findings as were competent to be considered. The facts material to the decision are stated in the opinion.</p>

<p>Contract upon an agreement under seal to purchase real estate, dated May 14, 1891, and executed, in the name of the defendant, by his son, William T. Moore. The defence relied on was that the defendant never made or signed the agreement, or authorized any one to sign it for him. Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Besides the agreement of the plaintiff to sell, and the agreement of the defendant to buy, the land in question, the contract contained particular provisions: that the premises should be conveyed within fourteen days from the date of the contract by a warranty deed conveying a good title free from all encumbrances “ except $3,500 ($3,000 of which is at 5 per cent, and $500 at 6 per cent) ”; that interest was “ to be affixed to date of passing papers ”; that for such deed and conveyance the defendant was to pay $6,150, of which $100 was paid when the contract was signed, and that a balance of $2,550 was to be paid in cash on delivery of the deed; that the purchaser was to assume the taxes assessed on May 1, 1891; and that the plaintiff was to deliver possession on or before June 1, 1891. On May 23, 1891, the plaintiff offered to perform her part of the agreement by tendering a deed, which the defendant refused to accept. The only question in dispute was whether the defendant had executed or ratified the contract. For the purpose of proving that William T. Moore had been authorized to execute the contract, and that, if he had not been so authorized, the execution of it had been ratified by the defendant, the plaintiff introduced the following evidence.</p> <p>William. T. Moore, who was present as a witness for the defendant, and was called by the plaintiff, testified that he was the son of the defendant, and was a foreman for the defendant in his business, keeping his accounts; that he was married, and lived in the same household with the defendant; that a short time before the date of the contract he had a conversation with the defendant, and learned that the defendant wanted to move from Boston to Somerville, or some place out of town; that he and the defendant intended to live together in whatever house in Somerville was bought, and that the defendant was to buy it; that he and the defendant visited the property referred to, and walked in and around it, on a Sunday prior to the date of the contract, and shortly before the plaintiff became the owner of the property; that word was sent to the defendant’s stand in Boston by a real estate agent named Matson, who was the agent of the plaintiff, that the plaintiff was willing to sell the property; that the defendant told the witness that he had better go down and see Matson; that he went to Matson’s, taking a blank check with him, and executed the agreement declared on ; that he understood his father wanted to buy the property, if he could get it for that price; that his father knew that it was to be bought for him if it was bought; that the witness passed Matson his own check for $100, and then left an order for the examination of the title; that when he got back to the stand, he told his father that he had left an order for the examination of the title; that he did not remember what his father said; that on that day, or a few days after, he told his father it was understood that there had been $100 paid to bind the bargain, and that, if the balance was not paid, this $100 would be forfeited ; that he told his father the price that was mentioned in the agreement; that his father did not authorize him to sign his name, and that he did not inform his father that he had done so. The agent Matson testified that he called on the defendant and asked him to pay the balance of the purchase money; and that the defendant said he did not want the property, and that the plaintiff ought to be satisfied with the deposit. The plaintiff herself testified that, when she tendered the deed of the property to the defendant, he said he did not want the property, refused to give any reason therefor, and did not state that his son had no authority to sign the agreement. Upon the foregoing evidence, the judge ruled that the written agreement offered in evidence by the plaintiff could not be admitted, and that the plaintiff could not maintain her action; and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs to all the judges.</p>

Two PETITIONS to the Superior Court, for a jury to assess the petitioner’s damages under St. 1889, c. 439.

<p>Mechanic's Lien — Evidence — Materials furnished.</p> <p>A mechanic’s lien cannot be maintained if there is no evidence that portable ranges for which the lien is claimed “ were to be furnished as parts of the several houses in which they were put,” or were “ applied so as to constitute parts of the buildings,” within the meaning of Turner v. Wentworth, 119 Mass. 459, 465. Knowlton & Bathrop, JJ. dissented, on the ground that there was evidence for the jury. Holmes & Barker, JJ. thought that the test of what are materials used in the erection of a building, within the meaning of the Pub. Sts. c. 191, § 1, is structural connection with the building, and so agreed with the majority.</p>

<p>Municipal Ordinance— Ultra Vires—Constitutional Law — State License.</p> <p>The city council of Boston may lawfully forbid public selling in the streets; and an ordinance of the city which provides that no person shall sell, in any street or from any building, any goods or article to any person on the street, except in accordance with a permit from the superintendent of streets, is reasonable, constitutional, and valid; and the fact that the party complained of has a license as a pedler from the Commonwealth is immaterial.</p>

Bill in equity, filed by Albert Sargent and others, being all the next of kin of Otis Sargent, against the Supreme Lodge of the Knights of Honor, a corporation established under the laws of the State of Missouri, A. O. Cullymore and others, trustees of Massachusetts Lodge No. 1226, a subordinate lodge of the order, and one Millie J. Blaisdell, for the purpose of securing the proceeds of a “ benefit certificate ” issued by the Supreme Lodge to the said Otis Sargent.

<p>Tort, to recover damages for injuries alleged to have been caused to land of the plaintiffs by the defendants in raising the grade of a public highway in the town of Revere. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, upon agreed facts, in substance as follows. The defendants justified their acts on the ground that whatever they did was done by them in behalf and as the agents of the town, thereunto duly authorized.</p> <p>On November 13, 1888, at a town meeting of the town of Revere, the defendants, Jonathan Stone, William H. Derby, and Seth Weston, were appointed a committee “ to consider the matter of paving a portion of Broadway on the southeast side, from where the paving now ends to the car stable, provided the Lynn and Boston Horse Railroad Company will put their tracks in the centre of the street and pave between said tracks ”; and also “ to estimate the cost of edgestones, gradings, etc., and report at the March meeting.”</p> <p>At a meeting of the selectmen of said town, held on February 23, 1889, on the petition of the Lynn and Boston Railroad Company, for a relocation of their tracks on said portion of said Broadway and elsewhere, the selectmen voted to grant such relocation, “ beginning at Beach Street and extending their double track through Broadway and the centre of the street to Central Avenue, laying tracks down to present grade of street to a little below Pleasant Street, then gradually coming up till the track will be about eight inches above present grade, making it a proper grade, more or less, as it may require upon survey. . . . The railroad company to pave from fourteen to eighteen inches outside their track, on the northwest side of their track, and between the two tracks.” The land of the plaintiffs on account of which the claimed damages is on the southeast side of that part of Broadway where the tracks were required to be raised about eight inches above the then existing grade.</p> <p>At the meeting of said town, held March 4, 1889, the committee above named made their report as directed. The report stated that “the Lynn and Boston Horse Railroad Company, having asked for and been granted a location in the centre of Broadway, . . . with two tracks in the centre of the street, they to pave all between their tracks and the usual width outside their tracks on the northwest side,” the committee had estimated the cost of the labor and materials required for the proposed work, and recommended that it be done- The report also stated in some detail the figures on which the committee based their estimate of the cost. Thereupon, the town voted, under a proper article in the warrant by which the meeting. had been called, to accept the report of the so called paving committee, to raise the amount of money necessary to defray the estimated cost, partly by taxation and partly by loan, and “ that the same committee do the paving work.”</p> <p>The railroad company proceeded to construct its tracks in conformity with the vote of the selectmen granting it a relocation, and after they were thus constructed the defendants,' acting as the committee of the town under the vote above referred to, caused the street to be paved and repaired in the following manner: the grade of the paving was made to conform to that of the railroad tracks, — that is to say, the edgestone in front of the plaintiffs’ land, on the southeast side of the way, was placed with its top on a level with the car tracks, and the paving was made to slope gradually from the level of the tracks in the middle of the street down towards the edgestone at the side, so that where it came in contact with the edgestone, in the gutter, it was six inches below the level of the tracks and an equal distance below the top of the edgestone. This was the proper and usual way to pave and repair the street undér the circumstances above described, because in order to pave a street so that it shall be safe and convenient for public travel it is necessary that the paving shall be laid with but a slight slope from the middle or highest part of the street towards the sides. And therefore, in paving and repairing Broadway, in accordance with the vote of the town, it became necessary to raise the grade of the street on the southeast side, where the plaintiffs’ land was situated. This was done, the grade being raised, at different points on the plaintiffs’ line, four and a half, six and seven eighths, seven and three eighths, and eight and five eighths inches respectively, the average amount which the grade was raised being a little over six and one fourth inches. On the northwest side of the tracks in front of the plaintiffs’ premises, the grade of the way was raised without paving, the average amount being a little less than ten inches. But on that side of the tracks some of the work of repairing the roadway was done by the defendants and some by the surveyor of highways, who also did the repairing and raising of the sidewalk on that side. The defendants made the repairs which they are stated to have made in good faith, believing they had ample authority. The repairs made were a public benefit, and the defendants received no compensation for their services.</p>

<p>Contract — Fire Insurance— “ Loss or Damage by Fire ” — Proximate Cause of Loss.</p> <p>A building and machinery used for generating electricity for electric lighting were insured against loss or damage by fire, and the jury found that the fire caused a “ short circuit ” of the electric current, which resulted in great damage to the machinery in a part of the building not reached by the fire. Held, that the injury to the machinery caused in this way was a “ loss or damage by fire,” within the meaning of the policy.</p>

<p>Bill in equity, filed on August 16, 1892, by the plaintiffs as lessees, to restrain and enjoin the defendants, their landlords, from disturbing them or suffering them to be disturbed in the quiet enjoyment of the demised premises.</p> <p>The plaintiffs were copartners, doing business under the name of Case, Dudley, and Battelle. The defendants William Minot, Jr., and four others, were the trustees of the Boston Real Estate Trust, of which the said Minot was the actuary. The bill prayed that an injunction might be issued restraining the defendants from further causing, making, permitting, or suffering the continuance of the annoyances complained of during the remainder of the plaintiffs’ lease, and from permitting or causing the continuance of a structure hereinafter described, in so far as it obstructed the admission of light and air, to which the plaintiffs said they were entitled. The court refused to grant a preliminary injunction, and ordered the defendants to make immediate answer. The defendants thereupon filed a demurrer and answer. In their answer the defendants, after admitting or denying the allegations of the plaintiffs’ bill, proceeded to state “that on or about the twentieth day of May, A. D. 1892, they made a lease in writing of the entire premises and building, a part of which the plaintiffs occupy, to one Jordan and another, which lease was expressly made subject to all the rights of the plaintiffs in the premises, and which lease gave to the lessees therein named, subject as aforesaid, certain rights of repair, renewal, and remodelling; that said lease is now in full force; that, as defendants are advised, their lessees are regarding the terms and provisions thereof; and that the defendants are directing, controlling, or doing no work in and about the premises whatever.”' The demurrer having been overruled, the case was heard on the merits before Bond, J., who dismissed the bill, and, at the request of the plaintiffs, reported the case for the consideration of the full court, substantially as follows.</p> <p>The defendants owned a building in Boston, bounded southerly on Bedford Street and northerly on Avon Street. The easterly line of the lot was straight, and the face of the wall of the building on that side was built upon the line of the lot, except about midway between the two streets, where the wall was set back from the line of the lot so as to leave a rectangular space about six and one half feet wide by twenty-seven and one half feet long, wholly on the defendants’ land. The wall of the adjoining building, as it then stood, had in it a corresponding jog or set-back, so that the distance between the walls of the two buildings where both were set back was about seventeen feet. The plaintiffs occupied the second, third, fourth, and fifth stories of the east half of the building under a written lease, which expired on December 31,1892. The premises leased to the plaintiffs extended the whole length of the building from Avon to Bedford Streets, and had an entrance on each street. This lease contained no mention of the open space above described, and no express covenants whatever on the part of the lessors. In it, however, the lessees covenanted, among other things, that they would not make or allow “ any unlawful, improper, or offensive use” of the premises that should be “injurious to any person or property, or liable to endanger or affect any insurance on said premises, or to increase the premium thereof,” and that they would “ conform to such rules and regulations as ” might “ from time to time be established by the lessors for the general convenience and safety of the tenants in the building.” • The lease was dated December 6,1890, and at that time the building was a business or commercial one. The rooms on the floors leased to the plaintiffs were lighted at each end by windows overlooking Bedford and Avon Streets respectively, and also on the east side by windows opening into the light and air space above referred to. There were four of these side windows on each floor, and they were furnished with iron shutters, two at each window, which opened out into the light and air space, and swung back against each other, or against the wall at the sides of the windows.</p> <p>At the Bedford Street end of the second floor of the building, which was the first floor of the premises leased to the plaintiffs, were two offices, with sash partitions, which occupied that end for its whole width.</p> <p>When the plaintiffs brought their bill they were, and for many years had been, commission merchants, doing an extensive business in the sale of goods consigned to them by various manufacturers, and they used the lowest floor of the premises leased to them, not only as a store-room, but as a sales-room. In making sales, it was necessary for them to have a well lighted place in which customers might examine goods, and the plaintiffs used that part of the second floor of the building directly in front of the side windows opening on the light and air space for that purpose. In order, therefore, that the plaintiffs might have the full enjoyment of the premises as they were when leased to them, it was necessary that they should have the full and undisturbed use of the side windows for light and air, and of the space without for opening and closing the iron shutters.</p> <p>Underneath the premises leased to the plaintiffs were one floor and a basement which had been leased by the defendants to, and were occupied by, Bradford and Thomas, who also occupied the west half of the fourth and the west half of the fifth floor under the same lease, which had not expired on May 20, 1892, but was modified by an agreement in writing of that date. This agreement, entered into by Bradford and Thomas of the one part, and the defendants of the other part, provided that on or before June 3, 1892, Bradford and Thomas would vacate the basement, and accept in place thereof the two chambers then vacant on the west side of the building, in the second and third stories, and permit the enlargement of the chimney then serving the engine-room. In consideration therefor the trustees agreed to pay $10,000, to make certain improvements and repairs, to pay any advance in the rates of insurance caused thereby, and to give Bradford and Thomas a right to terminate their lease at any time upon sixty days’ notice. This agreement was made by the defendants in order that they might be able to make a lease of the whole building and estate, subject to the unexpired leases above referred to, to Eben D. Jordan and Eben D. Jordan, Jr., and at the same time give the Jordans possession of the basement.</p> <p>The lease to the Jordans contained among others the following stipulations : “ The lessees take subject to the lease to Case, Dudley, and Battelle, and to the lease to Bradford and Thomas, and to the agreement dated this day between the lessors and said Bradford and Thomas, the obligations of which the lessees hereunder assume and agree to carry out, except that the lessors are to furnish the cash bonus of $10,000. . . . Permission is granted for the lessees to put into the basement of the building boilers, dynamos, and other appurtenances sufficient to supply power, light, heat, etc. to the neighboring buildings occupied by them, and to build a chimney of adequate size in connection therewith.” The term of the lease was eight years and seven months from June 1, 1892, but the instrument was not recorded. After June 1, 1892, when the Jordans went into possession, the defendants did not occupy the premises, or have any control of them, except as landlords. They did not employ any one to do the work upon the premises complained of in the plaintiffs’ bill, or direct or authorize the doing of such work, unless the contrary is held to appear, constructively and as matter of law, upon the facts reported.</p> <p>On June 1, 1892, the Jordans began, by their servants and agents, to place in said basement boilers and other apparatus designed for an electric light plant of a capacity of 250 arc lights, as specified in their said lease, and to erect wrought-iron pipes or chimneys in the light and air space into which the plaintiffs’ side windows opened. The work went on during the summer, and at the time of the hearing, September 15, 1892, these pipes had been entirely finished.</p> <p>By the construction of said electric plant, with its pipes or chimneys, the plaintiffs were greatly annoyed and injured in their business, and in the quiet enjoyment of the premises leased to them, by reason of the noise and dust caused by the work; and the light from the side windows was “substantially obstructed ” by the pipes or chimneys, “ so as to materially interfere” with the plaintiffs’ business. The pipes or chimneys obstructed the admission of light and air, not only by filling a large part of the open space, but also by interfering with the opening of the iron shutters. The extent of such interference was shown by means of a plan.</p> <p>The report further stated that the work done by the Jordans had caused an increased expense to the plaintiffs in their insurance, to the extent of “ mechanics’ permits ” ; and that the operation of the electric plant introduced would prevent the plaintiffs from obtaining a proper amount of insurance on their goods, for the want of which the plaintiffs would not be able to carry on their business on the premises as before, and that such an amount of insurance as they could get must be obtained at an increased cost.</p> <p>After the foregoing facts had appeared, in evidence, it further appeared that the plaintiffs had complained to the defendants, by letter, of the annoyance caused by the alterations aforesaid, in answer to which the defendant Minot had written, among other things, that he would do what he could. In respect to what he had actually done, the defendant Minot, having been called as a witness for the defendants, testified on cross-examination as follows: “ I did nothing, except to go down, or send down, I have forgotten which; I communicated with Jordan and Jordan, and informed them with respect to this letter, and informed them that I would be glad to have anything done to prevent annoyance. That was all I could do.” When asked if he saw what Jordan and Jordan were doing, he answered: “ I saw in this way, — I did not go into the premises; I saw from the street what was going on.” The following question was then asked Whether or not you understand Jordan and Jordan are doing anything other or different than they are authorized to do under this lease?” To this question the defendants objected, and it was excluded, subject to the plaintiffs’ exception.</p> <p>The report concluded as follows: “ I find that the complainants brought said bill in good faith, believing it to be their proper remedy. But on the pleadings and the facts herein reported, being of the opinion and ruling that the plaintiffs were not entitled to any relief, either by way of injunction or damages, against the defendants, I entered judgment dismissing said bill, and report the case for the determination of the Supreme Judicial Court; if the ruling was correct, the judgment is to be affirmed; if the plaintiffs are entitled to damages, the case is to be sent to a master for the assessment of the same; and if the plaintiffs are entitled to any other relief, the case is to be retained or remanded for further proceedings.”</p> <p>The case was argued at the bar in January, 1893, and after-wards was submitted on the briefs to all the judges, except Holmes, J.</p>

<p>Equity — Appeal— Question of Fact.</p> <p>On an appeal from the decree of a single justice in equity, the only question raised was one of fact, and the evidence tended so strongly to support the decree that the court was convinced that the appeal was frivolous. Held, that the prevailing party was entitled to double costs and interest at twelve per cent, and that the decree should be affirmed with such modifications as were rendered necessary by the lapse of time and the order for costs and interest.</p>

<p>Bill in equity, brought to secure possession of three bankbooks alleged to have been given to the plaintiff as a gift mortis causa by her aunt, Julia Murphy, and to have been wrongfully taken and detained by the defendant, who was the administrator of the estate of Julia Murphy. The case was heard in the Superior Court, and a final decree was entered for the plaintiff, from which the defendant appealed. The material facts appear in the opinion.</p>

Tort, for personal injuries received by the plaintiff, a servant in the defendant’s employ, caused by a fall received while moving a bale of cotton by means of an iron cotton hook.

<p>Writ of error, to reverse certain judgments rendered for the Commonwealth. The petition set forth “ that on or about the eighteenth day of October, A. D. 1887, in the Superior Court held at Lawrenee within and for the county of Essex in said Commonwealth, your plaintiff was convicted of the crime of larceny; that on the day aforesaid, in the court aforesaid, he was further adjudged guilty and convicted of having, on the fourth day of January, A. D. 1878, at the Superior Court holden at Salem within and for the said county of Essex, been convicted of the crime of breaking and entering a building in the night-time, and larceny therein, and having been sentenced and committed to the state prison for the term of five years; that on the day aforesaid, in the court aforesaid, he was further adjudged guilty and convicted of having, on the seventh day of February, A. D. 1883, been convicted of the crime of embezzlement, and having been sentenced and committed to the state prison in Concord, Mass., for the term of five years; that by reason of this conviction as aforesaid, your plaintiff was sentenced by said court to be punished by solitary imprisonment one day, and confinement at hard labor for the term of twenty-five years less one day, at the state prison at Boston, Mass., and that your plaintiff is now imprisoned under said sentence.”</p> <p>The assignments of errors so far as relied on were as follows:</p> <p>“ First. That the law under which the plaintiff was sentenced was unconstitutional, inasmuch as its enactment was contrary to the provision of Article XXIV. of the Constitution of Massachusetts, relating, to 6 A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.’</p> <p>“ Second. That the law under which the plaintiff was sentenced was unconstitutional, inasmuch as its enactment was contrary to Article XXVI. of the Constitution of Massachusetts relating to 6 A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.’</p> <p>“ Third. That the law under which the plaintiff was sentenced was unconstitutional, inasmuch as its enactment was contrary to the provision of Article XII. of the Constitution of Massachusetts, relating to 1A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.’</p> <p>“ Fourth. That the law under which the plaintiff was sentenced was unconstitutional, inasmuch as its enactment was contrary to the provision of Article I., § 10, of the Constitution of the United States of America.</p> <p>“ Fifth. That the law under which the plaintiff was sentenced was unconstitutional inasmuch as its enactment was contrary to the provision of Article XIV., § 1, of the Constitution of the United States of America as amended by ‘ Articles in addition to, and amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the legislatures of the several States, pursuant to the fifth article of the original Constitution.’ ’’</p> <p>The record, after setting forth the various convictions as alleged in the petition, stated: “ And the said Frederick Sturtevant, having been twice convicted of crime, sentenced and committed to prison for terms of not less than three years each, is deemed to be an habitual criminal.”</p>