Volume 159 — Massachusetts Reports

<p>Personal Injuries —Negligence — Burden of Proof—“Way” under Employers’ Liability Act.</p> <p>The plaintiff, while in the employ of the defendants, was ordered by them to carry a bar of iron down a flight of movable stairs leading into and intended to furnish permanent means of access to a cellar in which the defendants were making some alterations for the owner of the building. There was nothing to show that the steps were not suitable to be placed as they were, or reasonably to be expected to be in such position, or that the defendants had reason to suppose that they were insecurely fastened. As the plaintiff stepped upon the stairs they slipped from under him and he was injured. Held, that there was no evidence of negligence on the part of the defendants. Held, also, that they did not adopt the steps as a way used in their business within St. 1887, c. 270.</p>

<p>Personal Injuries — Gross Negligence — Statute.</p> <p>The plaintiff’s intestate, an employee of a telegraph company, was injured by a train upon the road of the defendant, while endeavoring to remove a telegraph pole which had fallen partly across the defendant’s tracks. The evidence showed that the engineer of the train was in his place and looking ahead, and that before reaching the pole the whistle had been sounded, the brakes applied, and the engine “ given sand,” and that the other employees of the telegraph company had been warned by the whistle and bjr the shouts of their fellows and had got out of the way; but it did not show just how soon the engineer or fireman became aware that the end of the pole was upon the tracks. Held, that there was no evidence to warrant a finding that the engineer or fireman was guilty of gross negligence in failing to stop the train sooner.</p>

Bill in equity to enforce restrictions contained in a deed of real estate. Trial in the Superior Court, before Hammond, J., who reserved and reported the case for the determination of the Supreme Judicial Court, in substance as follows.

<p>Adulterated Milk — Statute — Inference of Fact by Jury.</p> <p>A complaint under Pub. Sts. c. 57, § 5, charging the defendant with having in his possession, with intent to sell, milk to which a foreign substance had been added, is sustained by proof of possession, with that intent, of cream to which boracic acid had been added.</p> <p>A complaint under Pub. Sts. c. 57, § 5, charging the defendant with having in his possession, with intent to sell, milk to which a foreign substance had been added, was heard on an “ agreed statement of facts,” which was not a case stated in writing and filed, but an admission of facts from which the jury were at liberty to draw inferences. Held, that the jury might infer the offence charged from a sale by the defendant from his restaurant.</p>

Petition, by the receiver of the Supreme Lodge of the United Order of the Golden Lion, for instructions as to the disposition of the funds in his hands. This receiver, who was appointed after the decision reported in 156 Mass. 431, also filed his fourth report. The case was reported by Laihrop, J., and on certain questions, not determined by him on the facts then presented, by Knowlton, J., for the determination of the full court. The material facts appear in the opinion.

<p>Partnership — Suit between Partners after Dissolution — Statute of Limitations.</p> <p>A. and B., copartners as stockbrokers, were the owners of a seat in a stock exchange, the seat standing in the name of B. The firm failed and was dissolved in 1873. Although there was no formal settlement of accounts between the partners, it was agreed that the determination of the matter in suit would settle the partnership affairs. In 1888, B. sold the seat. Held, that the statute of limitations was a bar to A.’s claim for a share of the proceeds, and that the doctrine stated in some cases, that where specific articles belonging to a firm are retained for more than six years after the dissolution of the partnership, and then sold by one of the partners, an action may be maintained by the others for money had and received, did not apply. Field, C. J., Allen & Morton, JJ., dissenting.</p> <p>The defendant in an action to recover a share of the proceeds of the sale of a seat in a stock exchange does not, in waiving the defence that the remedy should be in equity, waive his right to set up the statute of limitations with the" same effect as if the suit were in equity, and the case stands as if the plaintiff had sued in equity to enforce a trust against the proceeds of the sale, as he might have done.</p>

<p>Highway by Prescription or Dedication — Discontinuance — Warrant and Vote of Town — Proviso — Highway, Town Way, or travelled Place.</p> <p>A road was laid as a town way in 1731, and the part in which the crossing was situated, at which an accident occurred, was yet such a way, unless discontinued in 1872. In November of that year the town voted that from the time when a new road, laid out and accepted by the town that day, designed to accommodate better the travel which passed over the S. H. Road, so called, should be opened for public use, the S. H. Road between its divergence from the main road near the house of J. and the point where it entered upon and connected with the new road should be discontinued as a public road, provided that the abutting owners on the road thus discontinued should have the right to improve tlie same as a private way for their especial use. The new road was opened in 1875, or before. No repairs had been made by the town on the S. H. Road for many years, and in 1380 signs stating that it was “ not a public way ” were placed at points between which the vote ordered that it should be discontinued, but it had been left open, connecting at either end with public roads, and it had been in continuous use since a time long prior to 1872. It did not appear when the railroad was constructed, but the crossing was planked between the rails, and over it were the usual signs. No evidence was offered to show when the crossing was planked or the signs were erected. Held, that the road was one which the town had the power to discontinue, and that, whatever the nature or amount of travel over it after the vote of discontinuance, it could not have been a highway by prescription, as the accident which caused the death of the plaintiffs’ intestates was less than twenty years after the passage of the vote; that it was not necessary to the legal discontinuance, in addition to the vote or adjudication, that there should be an actual shutting up of the road or an exclusion of travel; that the fact that the vote was to discontinue from and after the time when the new road laid out on the same day should be opened for use, did not make the discontinuance void; that the vote was valid notwithstanding the proviso; and that the road at the time of the accident was not a town way, highway, or travelled place within the meaning of Pub. Sts. c. 112, § 163.</p> <p>A road is not a travelled place within the meaning of Pub. Sts. c. 112, §§ 163-165, unless the railroad corporation has been requested in writing by the selectmen, or required by the county commissioners, to erect and maintain boards at the crossing, and, in the absence of direct proof of such request or direction, the fact that the crossing is planked and that signs are erected over it has no tendency to show that any request or order under the statute has been made.</p>

Tort, for personal injuries occasioned to the plaintiff in consequence of a fall upon some steps in the railroad station of the defendant at Hartford, Connecticut, by reason of ice upon the steps. At the trial in the Superior Court, before Hopkins, J., it appeared that there had been a trial of the case at a former sitting of the court in July, 1891, and that a new trial was granted.

<p>Implied Contract — Burden of Proof — Rights of Vendor and Vendee — Election — Right to Maintain Second Suit.</p> <p>Where the vendee contends that the property is not his, and treats it as belonging to the vendor, and the vendor elects to keep it for the vendee and sue for the entire contract price, he cannot maintain a second suit for the expense of keeping the property, either during the whole time while the litigation was pending, or for that part of it which would have been required to enable him properly to dispose of the property if he had chosen to sell it on the defendant’s account, and, after applying the proceeds, to sue for the balance due him.</p>

<p>Note taken by Purchase or as Collateral — Written Agreement — Composition Proceedings — Liability of Indorser.</p> <p>A written agreement recited that A. had received of B. a note of C. amounting to $1,750, and that when the note was paid A. was to convey to B a certain lot of land," credit to be given of $1,075.” In an action on the note by A, against B., who was an indorser, A.’s oral evidence tended to show that he took the note by purchase for $675, and B.’s that A. took it as collateral. Held, that the ruling that the written agreement showed conclusively that A. took the note by purchase was erroneous, and that the agreement was not inconsistent with B.’s contention that the note was taken as collateral.</p> <p>The discharge of the maker of a note under composition proceedings does not cut off the holder’s claim against the indorsers.</p>

<p>Indictment — Name of Person — Insufficient Allegation.</p> <p>An indictment which charges in the words of the statute that the defendant, at a time and place stated, “ did dispose of one suit of clothing of the value of thirty-five dollars by way of lottery,” is defective in not alleging the name of the person to whom the suit of clothing was disposed of, or, if he was unknown, in not stating that fact.</p>

<p>Counts of Indictment — Joinder of Offences — Examination of Jurors — Statute — Separation of Witnesses — Testimony of Physician — Opinion of Witness— Dying Declarations — Striking out Evidence with Excepting Party's Assent.</p> <p>Four counts, laying different means of procuring the miscarriage of a certain woman by reason of which she died, are properly joined in one indictment, and the provisions of Pub. Sts. c. 213, § 18, allowing the joinder of offences which could not be joined at common law, if it is averred that the different counts are different descriptions of the same act, have no application. These counts do not describe different offences in the sense of the statute, and could be joined at common law.</p> <p>An allegation in an indictment for an attempt to procure the miscarriage of a certain woman, that the defendant did use “a certain instrument, the name of which, and a more particular description of which, are to said jurors unknown,” is sufficient.</p> <p>Under Pub. Sts. c. 170, § 35, the examination of jurors as to interest or bias beyond the inquiries provided for expressly by the statute, was left to the discretion of the presiding judge, which discretion is not taken away by St. 1887, c. 149, providing that the examination may be made by the parties or their attorneys under the direction of court; and the discretion is exercised wisely by not going beyond the usual questions, unless something appears which makes it proper to go further.</p> <p>It is within the discretion of the presiding judge to refuse to separate the witnesses until they have testified.</p> <p>A physician of eighteen years’ practice, who attended a patient in her last illness, ordinarily may be asked, without further qualifying as an expert, what caused her death. In the case in question, the answer was that the death was caused by an abortion performed with instruments when the patient was advanced in pregnancy about five months, and the. physician had previously testified that a week before the death she was delivered of a foetus about five months advanced from conception, and that he was present and assisted at the delivery, and examined the patient before the delivery. Held, that the only element of opinion likely to be involved, beyond what an ordinary eyewitness might be supposed competent to express, was whether the injuries caused the death, and that the court could not say that the presiding judge erred in finding the witness sufficiently qualified.</p> <p>On the trial of an indictment for an attempt to procure the miscarriage of a certain woman, by reason of which she died, her mother may testify as to certain changes in her daughter just before her decease, and that they indicated to her that the daughter was in a state of pregnancy.</p> <p>If, on the trial of an indictment for an attempt to procure the miscarriage of a certain woman, an exception is saved to the testimony of the mother of the deceased as to the statements of the daughter that she was dying, and as to her dying declarations implicating the defendant, the former are admissible to show that the latter declarations were made under a sense of impending death. If believed to express the actual state of the dying woman’s mind, the statements to the mother lay a sufficient foundation for the admission of the declarations, which are made admissible by statute; and if the presiding judge strikes out certain parts of these declarations not specially excepted to on the ground that they were not competent evidence, seemingly with the defendant’s assent, the defendant has no cause of complaint.</p>

Petition, under Pub. Sts. c. 192, § 17, to enforce a lien given by § 14 of that chapter for repairs furnished to a tug-boat in her home port. At the trial in the Superior Court, before Bond, J., it appeared that the tug Glide was a vessel owned in Boston, and engaged in towing vessels in and out of the harbor of Boston to the neighboring ports. The lien claimed under the statute was for labor and materials furnished in repairing the vessel by the petitioners at her home port.

<p>Motion in A rrest of Judgment — Jurisdiction of the Court — Lewd and Lascivious Cohabitation — Allegations of Indictment.</p> <p>A motion in arrest of judgment for a cause existing before verdict, cannot be allowed unless the cause affects the jurisdiction of the court; and an indictment states a case within such jurisdiction which charges lewd and lascivious cohabitation, although the word “ abide ” is used where the statute uses the word “ associated.”</p>

<p>Motion in arrest of judgment, on the ground that the defendant had been acquitted of the charge of breaking and entering, that there was no judgment on which a sentence might legally be imposed, and that the record and the verdict of the jury on the first and second counts were repugnant and inconsistent, and of no force and effect as against the defendant.</p> <p>The record recited that, after a rescript was received from this court overruling the exceptions in the case of Commonwealth v. Lowrey, reported 158 Mass. 18, the defendant, Lowrey, filed this motion, which, after a hearing, was overruled, and he appealed to this court, and that the court thereupon adjudged the appeal to be frivolous and intended for delay, and sentenced the defendant to confinement in the state prison.</p>

<p>Certificate of Slock— Transfer — Attachment and Execution— Statute — Bona Fide Purchaser or Pledgee for Value — Power of Attorney signed in Blank — Delivery.</p> <p>A., the owner of five shares of the capital stock of a railroad corporation, transferred them to B., to whom a new certificate was issued on December 1, 1884. A. lent the stock to B., who testified that the certificate was issued to him in order that he might become a director in the corporation, but it did not appear that A. lent the old certificate to B. for this purpose, or knew that B. was going to use it in this way. A few days after the transfer to B., B. delivered the new certificate to A., having first signed the transfer in blank on the back of the ■ certificate. On February 16, 1886, C. attached the shares in an action against B., in which he recovered judgment for an amount greater than the value of the shares, and they were sold on execution in 1891 to D. Held., on a bill in equity by the executor of the will of the executrix and residuary legatee of A., to compel the corporation to issue to him a new certificate and to restrain D. from preventing such issue, that A. was a “ Iona fide purchaser or pledgee, for value,” and the power of attorney signed by B. in blank was a power of attorney within the meaning of St. 1884, c. 229; that the term “purchase” includes every lawful method of coming to an estate by the act of a party, as opposed to the act of law, and that the delivery of the certificate, accompanied by the power of attorney signed in blank, was sufficient.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. The declaration was in two counts, the first being under St. 1887, c. 270. At the trial in the Superior Court, before Fessenden, J., it appeared that the plaintiff, having caught his foot in a hole in the planking or timbering erected over Fort Point Channel in the defendant’s passenger yard, was struck by a locomotive engine of the defendant.

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

<p>Option to purchase Property—Contract — Agency—Quantum Meruit — Evidence for the Jury — Request for Ruling — Broker’s. Compensation.</p> <p>If A. has an option to purchase property, and agrees with B. to give him the benefit of it for a certain sum, and further agrees to assist B. in procuring a deed from the owner, and B. agrees to give A. the said sum on obtaining the deed, the agreement constitutes a valid contract, and on receiving the deed from the owner, B. is bound to pay A. the sum agreed upon; but in procuring from the owner the agreement to sell, A. must have acted for himself, and not as the agent of B. or as a broker for the owner.</p> <p>A request for a ruling that the plaintiff could not recover more than a quantum meruit for bis services as broker, if entitled to recover anything, was held rightly refused, as it assumed that the plaintiff had been acting as a broker, while the question whether he had been so acting or not was in issue, and as it disregarded the plaintiff's claim that there was a special agreement between the defendant and himself, of which there was evidence for the jury.</p> <p>A request for a ruling on a count on a quantum meruit was in substance that what the plaintiff would be entitled to recover was the usual broker’s commission, as stated in the evidence. The judge instructed the jury that the plaintiff was “ entitled to recover reasonable compensation,” and that that was “ the usual fair market value for the services ” rendered, the judge observing that, if the plaintiff acted as broker, “ the fair, ordinary commission which brokers charge is regarded as a fair compensation for what he should receive.” Held, that the ruling was right.</p>

<p>Deed— Mortgage — Covenant of Warranty ■—Bankruptcy — Discharge.</p> <p>A second mortgage of land recited that the land was “ conveyed subject to ” a certain right of drainage, a certain easement, “ and the mortgage hereinafter named ”; and the grantor covenanted that he was seised in fee of the “ aforegranted premises,” that they were free from all encumbrances “ except a certain mortgage,” describing it, “ the right of drainage, and the easement aforesaid,” that he had good right to sell and convey the same, and that he would ^arrant and defend the same “ against the lawful claims and demands of all persons, except the right of drainage and the easement aforesaid.” The court having decided that the covenant of warranty included the first mortgage, the tenant moved to reopen the case for the purpose of showing that, after a breach of the covenant in the second mortgage and before he repurchased the land, the mortgagor went into bankruptcy and was discharged. Held., that the judge below rightly ruled that the discharge was immaterial.</p> <p>The inuring, by virtue of a covenant of warranty, of an after acquired title obtained by foreclosure of a paramount mortgage, is a technical effect of the covenant, and is not prevented by the disclosure of the mortgage in the body of the deed containing the warranty against it.</p>

<p>Personal Injuries — Negligence — Equipment of Steamer — Fellervants.</p> <p>The plaintiff, who was employed on a steamer as a coal trimmer, having finished bis work at midnight, went forward to his berth. The vessel lurched, he stumbled and fell headlong upon the forward part of the hatch, got up, groped, made a step and fell into the hatchway, and was injured. The deck was lighted by electric lights, which had gone out through causes which the engineer could have obviated. There were lanterns available, and the fact that one of them was not used was due to the omission of a fellow servant. Held, in an action for damages, that, while the plaintiff was not negligent before his first fall, he could not recover, as the negligence, if any, was of fellow servants, and he had failed to show that his injury was caused by inadequate equipment of the vessel, or by any breach of duty on the part of the defendant company.</p>

Petition to the Probate Court, under Pub. Sts. c. 147, § 33, alleging that the petitioner was the wife of Luke Tully; that he failed, without just cause, to furnish suitable support for her, and had wilfully deserted her; and praying that the court would prohibit the husband from imposing any restraint on her personal liberty for such time as the court should direct, or until the further order of the court, and would make such further order as it deemed expedient concerning…

<p>Petition to the Superior Court for a jury to revise the assessment of damages made by the road commissioners of the petitioner for land taken by them in laying out certain town ways in Wrentham. The respondents demurred to the petition. The case was submitted to the Superior Court upon the demurrer and an agreed statement of facts. Hopkins, J. sustained the' demurrer, and dismissed the petition; and the petitioner appealed to this court, and also alleged exceptions. The facts material to the point decided appear in the opinion.</p>

<p>Bill in equity, filed in the Superior Court on September 1, 1892, alleging that the plaintiff was the owner of four parcels of land in Chelsea; that upon each parcel there was a mortgage, the one on the first parcel having been given by the plaintiff to the defendant, and the latter claiming to be the assignee of the others; that on the second parcel there was also a prior mortgage, of which the defendant claimed to be the assignee, and under which he had entered into possession of the premises and taken the rents and profits; that the parcels were of greater value than the mortgages on them, and the plaintiff was willing and had offered to redeem the same, and had demanded of the defendant an account of the sums due on the mortgages, which the defendant had not given him; that under the powers of sale contained in the four mortgages first described, the defendant had advertised the premises for sale by public auction on September 2, 1892; and that after such advertisement the plaintiff again demanded of the defendant an account, which the defendant refused to state. The plaintiff offered to pay the defendant what should be found due on the mortgages; and prayed for an account, for a decree that, upon payment of the amount so found due, the plaintiff should have possession of the premises discharged of the mortgages, and for an injunction restraining the proposed sales.</p> <p>The defendant filed a plea, alleging that, on February 4,1889, the plaintiff filed a bill in equity in the Superior Court against this defendant to redeem the parcel of land first described in the present bill from the mortgage; that on the same day the plaintiff filed in that court a bill against the mortgagee in the third mortgage above described to redeem the land therefrom, and the mortgagor in the second and fourth mortgages above described also filed a bill against the mortgagee therein to redeem the parcels of land therefrom ; that before the hearing on these bills the mortgagee in the second, third, and fourth mortgages died, and the present defendant was his only heir and next of kin, and the sole legatee under and executor of his will; that the plaintiff’s title, if he had any, to either of the parcels described in the second, third, and fourth mortgages had been derived from the mortgagor therein since the pendency of those bills and with full knowledge thereof; that those bills were tried together at the January sitting, 1891, of the Superior Court, and a decree was entered in each case on April 6, 1891, giving the plaintiff leave to redeem the land from the mortgages upon payment of the sums due thereunder, with interest and costs, within sixty days from the date of each decree; and that on January 30, 1892, the plaintiff, not having complied with the decrees, the cases were further heard and a final decree entered in each case dismissing the bill with costs.</p> <p>The plea was adjudged good, and the bill dismissed; and the plaintiff appealed to this court.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the park commissioners of the town of Brookline, claiming to act under St. 1875, c. 185, in making assessments for benefits received from the laying out of a public park in the town of Brookline, adjoining the city of Boston, which has accepted the act.</p> <p>Hearing before Morton, J., who reserved the case for the determination of this court upon the petition and such facts set forth in the answer and return as should appear material. So much of the case as is necessary to the understanding of the points decided is stated in the opinion.</p>

<p>Complaint on the Pub. Sts. c. 98, § 2, in two counts, addressed, “ To Charles Thompson, Esquire, Associate Justice of the District Court of Central Middlesex, sitting in the absence of the Justice.”</p> <p>The first count alleged that ■ the defendant, on July 10, 1892, at Lexington, “ that being the Lord’s day, did then and there do certain business, to wit, the negotiating for the sale of certain land, said business not being then and there a work of necessity or charity.”</p> <p>The second count alleged that the defendant, at the same time and place, “ was wilfully and unlawfully present at a certain public diversion and entertainment then and there maintained, said diversion and entertainment not being then and there licensed by the persons or board authorized to grant licenses in such cases.”</p> <p>The jurat was signed as follows; “ Chas. Thompson, Associate Justice of said Court, sitting in the absence of the Justice.”</p> <p>In the Superior Court, on appeal, the copy of the record of the district court showed that the defendant was convicted on the first count, and acquitted on the second count of the complaint. The record was attested as follows : “ Chas. Thompson, Special Justice of said court, sitting at the request of the Standing Justice thereof.”</p> <p>The defendant filed a motion to quash the complaint for the following reasons:</p> <p>“ 1. Because the complaint is defective and bad in its caption and jurat, which are erroneous, and do not contain an averment of the name of the justice of said court, or that the sitting justice presided and sat at the request of said justice in his absence. 2. Because said first count does not allege that said business was unlawful, and does not describe the kind of business, or that it is not a business connected with or a part of the exceptions contained in the St. of 1887, c. 391. 3. Because said first count does not sufficiently describe the business, or where the land was, or what the so called negotiating was. 4. Because said first count is generally insufficient and bad. 5. Because said second count contains no affirmative allegation and averment of the existence of any diversion or entertainment, and no description of the diversion and entertainment, or a reason why the same is not more particularly described and set out. 6. Because it does not appear that said entertainment and diversion was not a concert of sacred music. 7. Because there is no sufficient, or any allegation whatever, that such diversion and entertainment was not duly and legally licensed. 8. Because said complaint does not bear the seal of any court'or authority whatever.”</p> <p>Richardson, J. overruled the motion; and the defendant excepted.</p> <p>At the trial, the evidence tended to show that the defendant, on Sunday, July 10, 1892, went from Boston to Lexington, where there was a large tract of land, which he, as agent of the owners, had for sale, in lots; that tickets for rides on the railroad were distributed on that day by the defendant to those who wished to go to Lexington to see the lots; and that there were about seventy-five people on the grounds at Lexington on the day in question, walking about and upon the lots.</p> <p>The government introduced evidence tending to show that the defendant had a conversation with one of the witnesses relating to the value, price, size, and location of certain lots; that the defendant exhibited a plan or map of the lots; and that four lots were seen by the witness, and the prices named by the defendant, who told the witness where he could transact the sale, namely, at his office in Boston.</p> <p>There was no other evidence of any sale or other transactions relating to the sale of land on the day in question, except that the defendant was seen talking with other persons on the land.</p> <p>The defendant requested the judge to instruct the jury as follows:</p> <p>“ 1. The negotiating for the sale of certain land, the sale to take place on some other day than the day alleged, to wit, the Lord’s day, is not a violation of the statute. 2. Evidence of conversations in which the parties discussed the sale of certain land and postponing such sale until the Lord’s day was past, is not performing labor, business, or work, in violation of the statute. 3. Showing or displaying property, real or personal, on the Lord’s day, is not in violation of the statute. 4. It is not sufficient to support an allegation of doing business in violation of the statute to prove that the defendant showed and talked about land which he had for sale, but which he refused to sell on the day in question, it being the Lord’s day. 5. Proof of conversations on the Lord’s day about a proposed sale of land at some future time does not support the allegation that the defendant did then and there (to wit, on the Lord’s day) do certain business, to wit, the negotiating of the sale of certain lands.”</p> <p>The judge refused to give the instructions1 requested, and, among other things, instructed the jury as follows: “ If the defendant on said Sunday did this negotiating, talking, offering, making terms, showing the property, inducing people to come there, inducing them to buy, and doing those things which you well understand (but all which it might be difficult to state precisely and exactly) to be negotiating a sale, then you could find him guilty. If not, you should acquit him.”</p> <p>Upon the subject matter of the fifth request the judge instructed the jury as follows: “Well,that depends upon what the conversation was. If it was a casual statement, as I have1 said before, about the piece of land, its situation, or its price, and that was a mere incident to something else, as a walk or visit there, that is one thing, and possibly, probably, an innocent thing; but if he was out there on this land as a matter of business, showing this land to people who were prospecting, going out for the purpose of meeting them and seeing if they would buy, talking with them about the terms, and the price, and the size of the lots, etc., and had a plan and showed that, — I do not say that he did any of these things, —but if he did these things as a business, then it is within your power to convict him of the offence of negotiating for the sale of land on the Lord’s day, as charged in this complaint.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Personal Injuries—Highway Defect — Notice — Due Care — Instructions — Barrier.</p> <p>A notice to a city stated that, on a day named, “ while walking on the highway called C. Street,” a person “ fell into a hole or open trench in said street,” and was injured. At the trial of an action for such injury, it appeared that the plaintiff was hurt by falling into an open trench dug in C. Street by workmen employed by the city for the purpose of laying water-pipes, under the supervision and orders of the superintendent of waterworks of the city; and that the „ trench was about fifteen hundred feet long. There was evidence that, on the day following the accident, the superintendent of waterworks was notified of it, and the place where the plaintiff fell pointed out to him; that he called at the plaintiS’s house and saw her, and was then informed of the accident and the place where it occurred; and that some of the workmen on the trench heard of the accident on the following day. The judge declined to rule, as requested by the defendant, that there was not sufficient evidence to go to the jury that there was no intention to mislead the city by the notice given, and that the city was not in fact misled; and submitted those questions to the jury. Held, that the defendant had no ground of exception.</p> <p>In an action against a city for personal injuries occasioned to a girl thirteen years old by falling into an open trench in a street, while walking along a path by the side of the trench after dark, the defendant has no ground of exception to the submission to the jury of the question whether the plaintiff was in the exercise of due care, under instructions that the plaintiff's knowledge of the existence of the defect was not conclusive against her right to recover, and that. if she knew the street to be dangerous when she started to go along by the trench, and went on, taking her chances, and was hurt, she could not recover, if she knew and appreciated the danger, and, so knowing and appreciating, voluntarily took the risk of getting hurt.</p> <p>No exception lies to the refusal to give instructions in the language requested, if they are given in substance.</p> <p>In an action against a city for personal injuries occasioned to a traveller by falling into an open trench in a street, it is a question of fact for the jury whether barriers erected by the city to protect travellers against the trench were reasonably safe and proper, and whether, after being erected, they were maintained by the city.</p>

<p> Furnishing to Guest in Restaurant Oleomargarine in Place of Butter—Notice to Guest—Statute. </p> <p>The proprietor of a restaurant furnished oleomargarine to a guest in the place of butter. There were signs in conspicuous places in the restaurant bearing the words, “ Butterine Used Only Here,” and on the tables were bills of fare on whicli were printed the words, “ Only Fine Butterine Used Here.” The guest saw neither of the signs, and did not examine the bill of fare; and no oral notice was given to him that the substance furnished to him was not butter. Held, that the proprietor of the restaurant could be convicted of an offence under the St. of 1891, c 412, § 5.</p>

Contract for the breach of a written agreement, executed on November 12, 1892, by the terms of which the plaintiff agreed to sell and convey… Held: as set forth in the will, all the trusts for the benefits of individuals having been performed or otherwise satisfied. If, by the true construction of the will, the land in question cannot be sold or alienated by the plaintiff, judgment was to be entered for the defendant; otherwise, judgment was to be entered for the plaintiff.

<p>Fire Insurance — Evidence — Referee — Husband and Wife — Assignment — Action.</p> <p>In an action upon a policy of insurance against loss by fire, the answer imputed fraud or bad faith to the plaintiff in this, that in his proof of loss he did not set forth the purposes for which, and the persons by whom, the building insured was used, and concealed the fact that it was used as a hotel and summer resort. The defendant, at the close of the plaintiff’s evidence, called several witnesses in support of this ground of defence, and also introduced evidence tending to show that for boarding-houses having more than ten boarders a higher rate of premium would be charged than for dwelling-houses. To meet this evidence, the plaintiff was permitted to testify, in rebuttal, that, before the policy was issued, and at about that time, he told the defendant’s agent that it was his intention to keep boarders. This agent had already testified that he made no difference between the rates for insuring dwelling-houses and those for insuring boarding-houses in the town where the plaintiff’s property was situated. The defendant objected to the plaintiff’s testimony in rebuttal, on the ground that the issues presented by the defendant’s answer and testimony, as above set forth, were no longer material at the trial, because the presiding judge had arranged, with the consent of counsel, to submit two questions only to the jury, namely, whether the plaintiff had voluntarily set the fire, and whether the use of the property had been so changed after the policy was issued as to avoid the same. It did not appear at what stage of the case the questions to be submitted to the jury were settled, or whether it was before or after the admission of the plaintiff’s testimony. Held, that the defendant had no ground of exception.</p> <p>A., who acted as one of three referees in adjusting the amount of loss under a policy of fire insurance, held at the time he so acted a promissory note made by the assured and his wife, which was secured by a second mortgage of real estate, including the property destroyed by the fire ; and he held the note and mortgage to secure him for his indorsement of another note of the same amount given by the wife to a third person, which had not then become due. A. was selected by the two other referees, and his selection was unknown to the assured until several weeks after the award had been made. Held, in an action on the policy, that the court was not required to rule, as matter of law, that A. was not a disinterested referee.</p> <p>Where insured property is transferred from one person to another, and the insurance policy is assigned to the new owner with the assent of the insurer, the assignee becomes the insured and may maintain an action on the policy in his own name; and it is immaterial that the assignee is the husband of the assignor, and that she assigned the policy directly to him.</p> <p>If a policy of insurance against loss by fire covers both real estate and personal property, and the owner transfers the personal property to another, and, with the consent of the insurance company, assigns to him the policy so far as it relates to the personal property, each may maintain an action on the policy for his respective loss.</p>

<p>Mechanic's Lien — Notice — “ Purchaser " — Statute.</p> <p>An owner of property, upon which a mechanic’s lien is sought to be enforced for materials ordered by him in person in behalf of a firm of which he is a member, is a “ purchaser ” of the materials, within the exception of Pub. Sts. c. 191, § 3.</p>

<p>Personal Injuries — Evidence.</p> <p>In an action against a railroad corporation for personal injuries occasioned to the plaintiff by being struck, while engaged in discharging coal from a car into a shed on the side of the track, by reason of the body of the car, which had been tipped up so that a portion of its contents was discharged into the shed, suddenly turning and swinging back, it appeared that the body of the car was hung on two iron rockers resting upon iron bars known as rocker beds, attached to the truck frame at either end of the car; that the rockers were kept in position on the beds by iron pins projecting therefrom and fitting into cavities in the rockers; that the body of the car was kept in a horizontal position by two iron hooks hanging down on either side from the bottom sill of the car and catching on two iron latches which were made fast to the truck frame; and that the hooks were so attached to the body of the car that they swung to and fro, and attached to the hooks on the outside was a heavy piece of iron designed to keep them down over the latch. The plaintiff contended that the reason why the car swung back was because the hooks were bent, defective, and rusty, so that they would not catch upon the truck frame. The defendant denied that the hooks were in that condition, and offered evidence tending to show that the hooks and car were in good order both before and after the accident, and was allowed to introduce evidence that a block could be so used in tipping the car that the hooks would not catch; that a man was there provided with such a block; that he knew how to use it for that purpose; and that he was in fact using it on other cars immediately before the accident; but there was no evidence that a block was used on the car in question. Held, that the plaintiff had no ground of exception.</p> <p>In an action against a railroad corporation for personal injuries occasioned to the plaintiff, while engaged in dumping coal from a car, by reason of the body of the car, which had been tipped up so that a portion of its contents was discharged, suddenly flying back and striking him, he contended that the car was in a defective condition, which the defendant denied, and called as a witness an expert, who, after stating that a car might be in perfectly good order and still fly back by reason of the fault of those who dumped it, was allowed to add that he had seen it done. Held, that the plaintiff had no ground of exception.</p>

<p>Equity — Landlord and Tenant — Mortgage of Personal Property — Use and Occupation — Storage.</p> <p>If a lessor, upon taking possession of the leased premises, during the term of the lease, finds thereon a stock of goods left there by a tenant, who has occupied under an arrangement with the lessee and has abandoned the premises, and the goods are subject to an unpaid mortgage and the mortgagee declines to take possession of the goods or to promise to pay the lessor for storing them, the latter cannot maintain a bill in equity against the tenant and the mortgagee to recover for use and occupation of the premises, and for storage of the goods.</p>

<p>Contract, for the benefit of the Old Colony Railroad Company, for services rendered as a common carrier. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, on agreed facts, in substance as follows.</p> <p>The plaintiff, at the occurrence of the events hereinafter mentioned, was a common carrier, having its usual place of business in Boston, and operating a railroad between the stations of the various railroads, including those hereinafter mentioned, which have their terminal points in Boston. The defendants were co-partners dealing in ice under the name of Winkley and Maddox, having a usual place of business in Boston, and in the year 1890 having part of their stock stored in icehouses on the shore of Smith’s Pond, in the town of Wolf borough, in the State of New Hampshire. In August, 1890, the defendants sold to N. M. Merrick, of Plympton in this Commonwealth, a car-load of ice at a certain price per ton delivered on the cars. There was a side track (constructed on private lands by parties interested in the ice trade) from a railway operated by the Boston and Maine Railroad, and running alongside of the icehouses of the defendants, upon which track cars were pushed up by the Boston and Maine Railroad and left to be loaded. The defendants’ servants loaded the ice in a car thus left on the side track, and informed the station agent at a station of the Boston and Maine Railroad about two miles distant that there was at the icehouses of the defendants a car of ice for “ N. M. Merrick, Plympton, Mass.,” giving the number of the car, and giving no other instruction or information. The Boston and Maine Railroad made a way-bill of the car to “ N. M. Merrick, Plympton,-Mass., via the Old Colony Railroad Company,” and also a bill for the freight charges to Merrick, hauled the car to Boston, and delivered it to the plaintiff to be hauled to the Old Colony Railroad Company. The plaintiff hauled the car from the freight-yard of the Boston and Maine Railroad to that of the Old Colony Railroad Company, and delivered it to the latter company, paying to the Boston and Maine Railroad its freight charges and taking its bill to Merrick so paid and receipted. The Old Colony Railroad Company paid to the plaintiff the amount of the bill so paid to tire Boston and Maine Railroad and the plaintiff’s charges to Merrick for its freight, and sent to Merrick a bill of these charges and its own charges for transportation from Boston to Plympton, and delivered the ice to Merrick at Plympton. Neither Merrick nor any one else has paid these freight charges. The defendants thereafter claimed payment for the car of ice from Merrick, but payment has not been made. The route followed in transporting the car was the usual one between Wolfborough and Plympton, and the sum charged was a reasonable charge for the services rendered by the plaintiff in the transportation of the ice.</p>

<p>Bill in equity, filed December 24, 1891, by the members of the firm of Houghton and Dutton, against the city of Boston and James W. Ricker, its collector of taxes, to enjoin the collection of a tax. Hearing before Lathrop, J., upon agreed facts, the material portions of which are as follows.</p> <p>The plaintiffs have their usual place of business in Boston, and were assessed on the first day of May, 1891, a tax on their stock in trade amounting to $3,402, and the tax was duly remitted to the defendant Ricker for collection. On October 30, 1891, between nine and ten o’clock in the forenoon, a messenger from the plaintiffs brought to the collector’s office, and gave to one of the collector’s clerks, two checks, one for $945, and one for $2,457, the latter of which was drawn on the Maverick National Bank of Boston, and also the tax bill for $3,402. The employee of the collector took the checks, stamped and receipted the tax bill, and gave it to the messenger, and entered the checks on a list which he kept of the checks and moneys received by him that day. Nothing was said by the messenger to the clerk, or by the clerk to the messenger, as to the check.</p> <p>The collector, by his cashier, received during Friday, October 30, the sum of $655,526.45, of which $612,781.97 was represented by checks, including the check in controversy, and, after the closing of the office at two o’clock, P. M., prepared a list of the checks and moneys so received and of the corresponding taxes, and between nine and ten o’clock A. M. of Saturday, October 31, the cashier of the collector handed to the city treasurer the list, checks, and moneys. The city treasurer, by his clerks, caused the checks to be listed and entered on the books of the office, and about noon of that day deposited the checks to the credit of the city in certain banks, the check for $2,457 being deposited byjiim in the National Bank of the Republic, which bank was a member of the clearing-house association, of which the Maverick Bank was also a member. The plaintiffs had sufficient funds on deposit in the Maverick Bank to have paid the check if presented on Friday or Saturday, and the check would have been paid if presented at that bank prior to the close of banking hours on Saturday.</p> <p>On Sunday, November 1, the bank examiner was instructed by the Comptroller of the Currency to take possession of the funds of the Maverick Bank, and close the same for business, and in consequence the bank did not open for business on Monday morning. The check was returned on Monday, November 2, from the clearing-house to the National Bank of the Republic, and was immediately returned by that bank to the city treasurer, and by him to the city collector, and the treasurer removed from his books the credit he had given to the city collector for the check. On Monday, about noon, the cashier of the city collector returned the check to the plaintiffs, and informed them that it was not paid, and demanded payment of the tax.</p> <p>The collector had given no special instructions to the clerk who received the check concerning taking checks or receipting tax bills, and did not know that any check of the plaintiffs was taken until Monday, November 2, when the check was returned to him by the city treasurer. The check was taken in accordance with the usage of the collector’s office of many years’ standing, and is the ordinary usage of business firms in Boston. The custom is for the convenience of tax-payers to receive their checks for the amount of their taxes, receipt their tax bills when the checks are presented in person, and turn the checks over to the city treasurer for deposit and collection. If the amount of the check was credited to the collector by the city treasurer, the tax was paid and the receipt was to stand; that is, the collector takes the check as an impliedly conditional payment, the condition being that the checks will be paid and the amount credited to him by the city treasurer. The well established usage of national banks in Boston, known to the plaintiffs, is, that all checks are exchanged at a clearing-house held every morning by the clerks representing each bank. The exchange takes place at ten o’clock, and includes only checks held by each bank at the close of the previous day’s business, and each bank receiving through its clerk a check from the clearing-house, by usage, has the right to return any of the checks which it has not the funds to pay at any time before twelve o’clock at noon, and the balances due to and from the several banks are settled in money at twelve o’clock of each day. It is also the settled usage in Boston with persons having bank accounts to deposit in their own banks checks received by them on any other bank. This usage is in long standing, and well known at all the banks of Boston, and among those keeping accounts at such banks. The check in question was deposited on Saturday before twelve o’clock, but, in accordance with this usage, was not presented at the clearinghouse until Monday at ten o’clock, at which time the Maverick Bank had failed, and its checks were thrown out of the clearinghouse settlements.</p> <p>The case was reserved, at the request of the parties, for the consideration of the full court; such decree to be entered as justice might require.</p>

<p>Personal Injuries — Street Railway — Due Care — Negligence.</p> <p>A. Street, in a certain city, upon which there were electric railway tracks, had a descending grade. B. Street entered A. Street on one side, and C. Street entered it on the opposite side about fifty feet south of B. Street. A teamster, who was driving two horses attached to a heavy wagon containing coal, came along B. Street and turned into A. Street, looked up that street, and saw an electric car coming down A. Street about four hundred feet from him, at the rate of six or seven miles an hour. He started to cross the tracks diagonally in order to reach C. Street, and, seeing the car close to him, hurried up his horses, but the car collided with his wagon after the horses were across the tracks, and he was injured. The motorman of the car did not sound the gong or halloo to him, and did not apply the brakes until the car was about twenty feet from him. Held, in an action for the injury, that the questions whether the plaintiff used due care and the defendant was negligent were for the jury.</p>

<p>Equity — Objectionable Use by Tenant of Manufactory — Nuisance.</p> <p>The tenant of one story of a building used for manufacturing purposes may maintain a bill in equity to restrain the tenant of the story above, in the floor of which there are holes for the passage of belting which runs the machinery of both tenants, from allowing sand and acids used in his business, and the fumes of the acids, to come through the holes in the floor and injure the machinery and goods of the former.</p>

<p>Contract, to recover for services rendered by the plaintiff to the defendant’s testatrix, Mary C. Wilmarth, from April 1,1883, to July 1,1887. In the course of the trial, the physical condition of the testatrix being an issue in the case, the plaintiff introduced evidence tending to show that from about 1885 to October, 1886, when the testatrix made her will, and afterwards, her mental as well as physical faculties had materially deteriorated. The defendant put in evidence without objection the record of the probate of her will,' which had been contested by the plaintiff in the Supreme Judicial Court and tried by a jury. It appeared from this record that the jury had found that the testatrix was of sound and disposing mind and memory at the time of making the will. At the close of the charge to the jury, at the request of the defendant’s counsel, the court instructed the jury as follows:</p> <p>“ The condition of the person when' she made the will has been tried between this plaintiff and this defendant, that is, the matter of the condition of her mind, and when a matter has been tried it is settled, that is, the question of her sanity; her competency to make a will has been settled by the jury in the trial of that will case. The verdict of the jury that she was at the time of making the will of sound and disposing mind and memory so far as making a will is concerned has been disposed of, and that inquiry is not open in this case. So far as executing the will and being of proper mind and free from undue influence are matters which have been settled.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort at common law, for personal injuries received by the plaintiff while in the defendant’s employ. The material facts were as follows. The plaintiff had been employed two or three days before the accident to work on a machine known as a dryer, which was a structure of wood twelve feet long, six or seven feet wide, five feet high and open at the top, inside of which about one foot from the top was stretched a stout wire netting, on which the cotton goods manufactured by the defendant were laid to be dried. Around the top of the dryer was a wooden moulding about two inches wide and convex on its upper surface. When the cotton was dry it was taken from the dryer and put into bags supported by ropes attached by loops to spikes driven into the beams supporting the ceiling. At the time of the accident the plaintiff had been directed by the overseer having charge of the room to hang the ropes supporting a bag to the spikes, and had stepped upon the moulding of the dryer, and was endeavoring to fasten the rope, when he missed his balance and fell to the floor, receiving severe injuriés. It appeared that the plaintiff had been instructed how to hang the bags by the overseer, who while, giving him a practical illustration said, “ This is the way we do it,” stepped upon the moulding, and, steadying himself with one hand against the beam, hung the rope with the other; and that before the accident the plaintiff himself had successfully put up the ropes once or twice. The plaintiff was not so tall as the overseer, and standing upon the moulding could just reach the beam. It was admitted that the plaintiff would testify that in performing this act he relied to a certain extent upon the instructions and directions of the defendant. Hopkins, J. was of the opinion that there was no evidence which would warrant the jury in finding a verdict for the plaintiff, and directed them to return a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Personal Injuries — Negligence — Evidence — Acts of Plaintiff and of Fellow Servant.</p> <p>In an action of tort for personal injury, the declaration, after narrating the manner in which the accident causing the injury occurred, alleged generally that the defendant corporation by its servants and agents was negligent, and was guilty of a breach of duty toward the plaintiff. The evidence showed that the plaintiff, a servant in the defendant’s employ, had wheeled a heavy piece of machinery upon an elevator, without orders so to do, and had thereupon been ordered to remove it by another of the defendant’s servants; and that while he was endeavoring to remove it from the elevator, the wheels of the truck upon which the machinery had been moved struck the curbing of the elevator well on a level with the floor, and the machinery fell upon the plaintiff and injured him. There was nothing to show that the injury was due to a defect in the elevator. Held, that evidence as to the condition of- the elevator at a time before the day of the accident, and as to the condition of the elevator belt, and as to whether there was anything to prevent the elevator from going below the floor, was rightly excluded. Held, also, that a ruling that the action could not be maintained was correct.</p>

Contract, against the maker, and five other persons as indorsers, of a promissory note. At the trial in the Superior Court, before Bond, J., the defendants did not deny their signatures to the note, but defended on the ground that the note had been fraudulently put into circulation by the Potter-Lovell Company, and that the plaintiff did not take the note for value and without notice.

<p>Writ of Entry — Tax Sale — Merger of Mortgage — A dual Notice — Estoppel.</p> <p>A release to the mortgagee of the equity in premises which have been sold for taxes does not have the effect to work a merger when such merger would deprive the mortgagee of his right to redeem from the tax sale.</p> <p>The words “actual notice of the sale,” in Pub. Sts. c. 12, § 49, mean something more than knowledge of such facts as might be sufficient to put one on inquiry. A mortgagee of property which has been twice sold for taxes, who takes a release from the owner of the equity “ subject to any and all unpaid taxes,” is not thereby estopped to deny that he knew of the tax sales.</p>

<p>Bill in equity, filed in the Superior Court on August 15, 1892, by the assignee in insolvency of Sarah E. Balcom, an insolvent debtor, against her and George F. Wall, as trustee under the will of James H. Wall, to reach and apply the income payable under the will to Mrs. Balcom.</p> <p>The will of James H. Wall was duly admitted to probate, and by item 9 thereof he gave to his son George F. Wall one thousand dollars, in trust, to pay over the income thereof to the testator’s brother, Caleb A. Wall, during his life. He then directed that, “ in addition to said income, said trustee is authorized to pay over any part of the principal sum, at any time, to the said Caleb A. when he shall regard such payment wise and expedient ; but in no event shall any part' of said principal or income be used for the payment of his debts, or any liabilities which may be outstanding at the time of my decease.”</p> <p>By item 14, he gave to George F. Wall five thousand dollars, in trust, “ for the following uses, purposes, and objects, and none other whatsoever, to wit: . . . The income thereof, as it shall become due and payable, and be received by him, to pay over to my daughter Sarah Elizabeth Balcom, formerly the wife of Sumner W. Balcom, for and during her life. In addition to said income said trustee or his successor is hereby authorized to pay over any part of the principal sum at any time to the said Sarah Elizabeth Balcom, when he shall regard such payment wise and expedient, and demanded by the needs and necessities of the beneficiary.”</p> <p>By item 15, he gave to George F. Wall five thousand dollars, in trust, to pay over the income to his daughter Emma Isabella Connell, “ if in the exercise of a wise discretion it shall seem to him proper so to do. In addition to said income, said trustee or his successor is hereby authorized and empowered to pay over any portion of the principal at any time to the said Emma Isabella Connell, as in his opinion her needs require it. It being my object to put the disposition of this trust fund, principal and interest, in the hands of said trustee, to be used for the benefit of my said daughter Emma Isabella Connell, at his discretion.”</p> <p>Item 16 was as follows: “ I have been much perplexed and disturbed as to how I can in justice provide for the two youngest children of my daughter Emma Isabella Connell, as I cannot, owing to their tender years, fully judge what their future will he, and I consider that the future of the oldest son will clearly be of such a nature that I cannot conscientiously provide for it. In not providing for the two youngest, Edith and Arthur, I may possibly be doing a great injustice, and that I wish to avoid. Therefore, I give and bequeath unto George F. Wall the sum of five thousand dollars, to have and to hold the same to him and his legal representatives, in trust, however, for the following uses, purposes, and objects, and none other whatsoever, to wit: ... 2. The income thereof, as it shall become due and payable, and be received by him, to pay over to these two children, Edith and Arthur, not necessarily share and share alike, but to one or both of them in such proportions as he shall deem proper, and according to their respective merits, he himself, the said George F. Wall, trustee aforesaid, being the sole and only judge of their respective merits, and his decision to be unquestioned.”</p> <p>By item 17, in addition to a bequest of five thousand dollars to his wife, Elizabeth, he gave to her, for her sole and separate use and in lieu of dower, one third of all his personal property, and then gave to the Boston Safe Deposit and Trust Company one third of his real estate in trust to pay over quarterly all the rents, profits, issues, and incomes thereof, after deducting all reasonable and proper charges, to his wife, Elizabeth Wall, for her own use.</p> <p>By item 18, clause 2, all the residue of his .estate, real, personal, or mixed, he gave to the Boston Safe Deposit and Trust Company, in trust, to pay over all the rents, profits, issues, and income thereof, after deducting all reasonable and proper charges, to his children, George F. Wall, James H. Wall, Jr., and George F. Wall, “as he will be trustee for my daughter Sarah Elizabeth Balcom, in terms to be hereinafter set forth, and George F. Wall, as he will be trustee for my daughter Emma Isabella Connell, in terms to be hereinafter set forth, in even and equal portions, one fourth to each, for and during the lives and the life of the survivor of them, and likewise during the life of the said Sarah Elizabeth Balcom and Emma Isabella Connell and the survivor of them, the child or children of either of them deceased to receive the portion which would have belonged to said deceased child, saving and excepting the child or children of Emma Isabella Connell, until' the decease of the last surviving one of my said four children, George F. Wall, James H. Wall, Jr., and Sarah Elizabeth Balcom, and Emma Isabella Connell.”</p> <p>By item 20, he gave to George F. Wall a fourth part of the rents, .profits, issues, and income mentioned in section two of item eighteen, in trust, to pay over the income arising therefrom to his daughter Sarah Elizabeth Balcom for and during her life, at his discretion. “ If at any time it shall seem to my trustee expedient to pay over to my said daughter Sarah Elizabeth Balcom any portion of the accrued principal resulting from the reception and retention or investment of the fourth part of the rents, issues, and profits above referred to, to relieve her necessities or lighten her burdens, he is hereby authorized so to do.”</p> <p>By item 21 he gave to George F. Wall a fourth part of the rents, profits, issues, and income mentioned in the second section of item 18, in trust, to pay over the income arising therefrom to his daughter Emma Isabella Connell “ for and during her life, at his discretion. If at any time it shall seem to my trustee expedient to pay over to my said daughter Emma Isabella Connell any portion of the accrued principal resulting from the reception and retention or investment of the fourth part of the rents, issues, and profits above referred to, to relieve her necessities or lighten her burdens, he is hereby authorized so to do.”</p> <p>Item 22 was as follows : “ I have made my will carefully, and after mature deliberation and reflection, and the provisions therein contained have been carefully weighed and considered by me, and as it stands it is the expression of my will and my wishes in regard to the disposition of my property after my decease, and so convinced am I that it is just and prudent in its provisions, that I hereby order and direct that any one of my legal heirs who shall attempt to break this instrument shall be deprived of his or her share under the provisions hereof.”</p> <p>The defendants demurred to the bill for want of equity, and answered denying that there was any accrued income or interest of the five thousand dollar fund bequeathed to the defendant Wall in trust, under the will of James H. Wall.</p> <p>The Superior Court overruled the demurrer, and made a decree for the plaintiff, directing the trustee to account with the plaintiff for all income then and thereafter due and payable upon the fund of #5,000 by him held in trust, until the plaintiff, as assignee, should have received a sum of money which, together with any other assets of the insolvent estate, should be sufficient to pay all claims proved against the estate, with interest thereon at six per cent, together with the costs of the insolvency proceedings and of this suit. The defendants appealed to this court.</p>

<p>Collateral Security — Pledgee’s Interest in Damages for Conversion — Attorney’s Fees — Costs — Appeal.</p> <p>A party holding a fund against which he knows a claim is made by another as pledgee, although not aware that the pledge extends beyond a specific loan which has been paid, pays over the fund to the general owner at his peril.</p> <p>If a party who has received a fund against which he knows a claim is made by another as pledgee does not keep it identified, but has the use of it, he properly is charged with interest from the date of the writ.</p> <p>When a decree is affirmed on appeal, this court usually will not disturb the discretion of the court of first instance as to costs.</p> <p>The plaintiff in a bill of equity not having appealed, the objection that certain items allowed to the defendant should not have been deducted from the fund in the defendant’s hands is not open to him in this court.</p>

Bill in equity, filed May 8, 1891, against George Z. Silsbee, Dudley L. Pickman, and William F. Wharton, as executors, and against Dudley L. Pickman, William F. Wharton, and Walter Hunnewell, as trustees, under the will of William D. Pickman, for an account, and to establish the plaintiff’s right to one half of the profits arising from the sale of a lot of land which was purchased by the defendants’ testator, in his lifetime, on the joint account of himself and the plaintiff.

<p>Division of Personal Estate in Specie — Sales by Auction — Buying in by Administratrix— Allowance of Account — Interest—Dividends — Election — Confirmation of Sale by Distributees — Monument to Intestate — Allowance for Legal Services — Allowance for Box in Safety Deposit Vault.</p> <p>A. died intestate, leaving a widow and heirs at law and next of kin, but no children. His widow, who was entitled to one half of his personal estate, proposed to take one half of certain stocks and bonds belonging to the estate in specie, but the distributees refused assent. Thereupon she sold ten of twenty shares of certain stock, and one of two mortgages of equal amounts, issued or guaranteed by the same company, by public auction, after proper advertisement, at . a price which was fair, but below the appraised value, bought them in herself, took the other ten shares and the other mortgage as her own, and charged herself with them at the auction prices. The distributees elected to hold her liable for their value in money. Held, that the election was conclusive that the sale was a sufficient test of the value of the securities, and that the administratrix should be allowed in her account for the loss between the prices obtained at the sale and the appraised values.</p> <p>An administratrix having charged herself with interest on the price of stocks and bonds taken by her, from the time of the taking to the time of rendering her account, is entitled to the dividends paid since that time.</p> <p>An administratrix, having by a decree of the Probate Court obtained leave to expend a sum of money for the erection of a monument on the burial lot of the intestate, afterward bought another lot elsewhere with her own money, removed thence the intestate’s body, and erected the monument there. Held, that she . was properly allowed that sum in her account, and that the fact that the expenditure was not within the terms of the decree was not conclusive against it, but simply left on the administratrix the burden of justifying it when she rendered her account. ■</p> <p>A charge for legal services rendered to the administratrix in connection with an application to the Probate Court for leave to expend money of the estate in the erection of a monument to the intestate was properly allowed.</p> <p>An administratrix may be allowed in her account for the rent of a box in a safety deposit vault.</p>

<p>Equitable Attachment — Sale of Interest of Cestui que Trust — Insolvency—■ Composition Proceedings — Equitable Lien.</p> <p>A creditor who by a bill in equity seeks to reach and apply in satisfaction of his claim the debtor's interest in a trust fund does not, by filing his bill, acquire a lien upon that interest so as to prevent it, upon the subsequent institution of insolvency proceedings by the debtor, from passing to his assignees, or so as to prevent them from holding it free and discharged of any equitable lien.</p> <p>There is nothing in the original composition act, St. 1884, c. 236, or in the amendatory acts, which provides that, upon the institution of composition proceedings after the insolvent’s estate has been conveyed to assignees in insolvency, it shall ipso facto revest in the debtor, and become subject to any attachment or lien existing or proceeding pending in favor of a creditor at the time when the warrant in insolvency was issued.</p> <p>The sale by the assignees in insolvency, acting in behalf of the debtor, of his interest in a trust fund given by will in order to obtain funds with which to pay the proposed dividend in composition proceedings, though subsequent to the filing of a creditor’s bill, vests an absolute title in the vendee, and does not revest the property in the debtor, so as to make it subject to be reached by the creditor in equity or to give him an equitable lien upon it.</p> <p>Upon the discharge of the debtor in composition proceedings under St. 1884, c. 236, § 10, the property that reverts to and revests in him must be such as then remains in the assignee’s hands, and although it is provided that the court of insolvency may, upon the filing by the debtor of a proposal for composition, stay or suspend insolvency proceedings, there is nothing which forbids it from thereafter authorizing the assignees to sell the estate by public or private sale.</p>

<p>Petition in equity, filed November 22,1892, against George S. Bullens and John Brooks, as assignees in insolvency of the estate of the Potter-Lovell Company, an insolvent debtor, alleging that on July 8, 1892, a petition was filed in the Court of Insolvency, by one or both of the respondents as assignees, praying that the petitioner be summoned to appear before that court, and submit to an examination in respect to the matters set forth in the petition; that a summons was issued, and served on the petitioner, commanding him to appear before the Court of Insolvency and submit to an examination on oath by the assignees or any creditor of the insolvent estate; that the petitioner appeared specially by attorney before the Court of Insolvency and objected to the examination, on the grounds that the petition was not signed or executed by the persons in whose name it purported to be brought, that it was not verified by affidavit as required by law, that no lawful summons had been issued to him by the court, and that the proceedings were irregular, and not in accordance with the requirements of law ; and that he asked that the proceedings be dismissed, and that he be not held to answer, but that the Court of Insolvency refused to dismiss the proceedings, and ordered the petitioner to submit to examination.</p> <p>The prayer of the petition was that this court, in the exercise of its supervisory jurisdiction in equity over courts of insolvency, should arrest and stay all further action on the petition of the respondents, and that it should vacate the order of the Court of Insolvency commanding the petitioner to appear and submit to examination, and order the petition to be dismissed.</p> <p>The petition of the assignees, which was addressed to the judge of the Court of Insolvency for the county of Suffolk, described the petitioners as “ George S. Bullens of Newton and John Brooks of Cambridge, as they are assignees in insolvency of said Potter-Lovell Company, insolvent debtor in insolvency,” and, after setting forth various facts and transactions not material to the understanding of the case, averred that the petitioner and others had “knowledge of things material relating to the assets and dealings of said insolvent corporation,’’ and prayed that they “ be summoned to appear and submit to an examination in respect to the matter aforesaid, and in respect to other dealings and transactions rising out of or touching the premises and otherwise.” The petition was signed “ Geo. S. Bullens,” and the jurat of the magistrate was as follows: “Then personally appeared the above named George S. Bullens and made oath that he had read the foregoing petition and knows the contents thereof, and that the same is true to the best of his knowledge and belief. James J. Myers, Notary Public.”</p> <p>The summons issued on the foregoing petition by the Court of Insolvency commanded the petitioner to appear and submit to an examination “ on oath before the judge of said court, by the assignees or by any creditor of said insolvent estate, touching or relating to any money, goods, effects, or other estate of the insolvent debtor, fraudulently received, concealed, embezzled, or conveyed away by you; or any assets of said insolvent debtor in your possession; or of anything material relating to the assets or dealings of said insolvent debtor, of which you have knowledge.”</p> <p>The case was heard before Lathrop, J., upon the petition alone, the truth of the facts stated therein having been admitted by the respondents. The judge dismissed the petition, and the petitioner appealed, and afterward, at the petitioner’s request, the judge reported the case for the determination of the full court.</p>

<p>Mortgage—Sale by Mortgagee — Advertisement of Sale — Improvements — Inadequacy of Purchase Price—Collusion at Sale — Setting aside Sale — Payment of Purchase Money.</p> <p>Where the advertisement of a sale of land by a mortgagee under a power of sale contained in a mortgage describes the estate as a certain parcel of land, and follows the description of metes and bounds given in the mortgage, but makes no mention of improvements placed on the land by the mortgagor subsequent to the delivery of the mortgage, this fact not being known to the mortgagee until the day of the sale, the sale will not for this reason be set aside at the suit of the second mortgagee, it appearing that the improvements were obvious to those who attended the sale, and there being nothing in the bill to show that there was not a number of bidders present, or that the sale was not conducted as an auction sale should be conducted.</p> <p>Mere inadequacy of price is no reason for setting aside a sale under a power of sale mortgage.</p> <p>There being no allegation, in a bill brought by a second mortgagee to set aside a sale made by the first mortgagee under a power contained in the mortgage, of collusion between the first mortgagee and the purchaser, who was a son in law of the owner of the equity of redemption, or between the first mortgagee and the owner of the equity of redemption, the first mortgagee is entitled to receive the purchase money, which, after the payment of his claim, he will hold in trust for the parties entitled to it; and, as he is entitled to have the sale carried .out, the purchaser cannot be restrained by injunction from paying over the purchase money to him.</p>

<p> Probate Appeal—Jury Issues—New Trial. </p> <p>On an appeal from a decree of the Probate Court allowing a will, the usual issues of testamentary capacity, fraud, and undue influence were submitted to a jury, who found in favor of the executor, and a decree was entered by a single justice of this court affirming the decree of the Probate Court, from which an appeal was taken to the full court. Held, that the verdict of the jury not having been set aside, and the evidence, if any, that was heard by the single justice upon matters not covered by the issues not having been reported, no question of law or fact is presented for revision.</p> <p>After the verdict of the jury in support of a will the appellant filed a motion for a new trial, and submitted affidavits in support thereof. The motion was overruled by a single justice, and the appellant appealed to the full court. Held, that this motion, being on the common law side of the court to which the issues had been sent, was addressed to the discretion of the justice, and that from his order overruling it no exception or appeal lies.</p> <p>Even though an appeal from an order of a single justice, overruling a motion for a new trial made on an appeal from a decree of the Probate Court allowing a will, be regarded as an appeal in equity or probate, yet if it does not appear that the single justice ruled on any question of law, or what facts were found by him with reference to the averments contained in the motion, no question is presented for revision.</p>

<p>Petition, under Pub. Sts. c. 191, to enforce a mechanic’s lien. Trial in the Superior Court, before Thompson, J., who found for the respondents. Both the petitioners and the respondents alleged exceptions, but those of the former only are now material. The facts appear in the opinion.</p>

<p>Replevin of furniture. At the trial in the Superior Court, before Blodgett, J., there was evidence tending to show that the plaintiff was the mortgagee of the property, and entitled to its immediate possession under a duly recorded mortgage, and that subsequently to the recording of the mortgage the property was attached by the defendant, who was a constable of the city of Boston, as the property of the mortgagor, by virtue of a writ wherein the mortgagor was named as the sole defendant.</p> <p>The plaintiff offered evidence that subsequently to the execution of the mortgage, and before the attachment, the mortgagor had sold the property to one Estes. The evidence was excluded, and the judge found for the defendant, solely on the ground that no demand was made on the defendant by the plaintiff as mortgagee after the goods replevied were attached by the defendant. The plaintiff alleged exceptions.</p>

<p>Petition to enforce a mechanic’s lien, under Pub. Sts. e. 191, for labor and materials furnished in the erection of a house in Waltham. Trial in the Superior Court, without a jury, before Richardson, J., who found for the respondent, and at the request of the petitioner, and with the consent of the respondent, reported the case for the determination of this court, in substance as follows.</p> <p>In the autumn of 1890, the petitioner contracted with one Preble, who was the duly authorized agent of the respondent, to furnish labor and materials in the erection of a building upon land of the respondent for the entire contract price of two hundred and eighty-five dollars. After a portion of the materials had been furnished, the petitioner, on September 26,1890, gave notice in writing to the respondent of an intention to claim a lien for the materials thereafter to be furnished by him in the erection of the house on her land. After the service of the notice upon the respondent, the petitioner, at the request of .Preble, furnished and put up conductor pipes in the house of the respondent, at an additional entire contract price of eight dollars and ten cents. The value of the materials furnished under the first contract before the service of the notice was $24.25, and the value of those afterward furnished was $210.02, while the labor performed and furnished thereunder was worth, in all, $127.50. How much of the labor was performed or furnished before the service of the notice, and how much after, did not appear. The contracts were fully completed and performed, and the petitioner ceased to labor on the building of the respondent on October 18, 1890, and within thirty days thereafter he filed in the registry of deeds a statement of account, in which a lien was claimed for the labor performed under the first contract, and for the materials furnished thereunder subsequent to the service of the notice, amounting to $837.46, and also for the entire value of the conductor pipes furnished under the second contract, amounting to $8.10. The judge further found that the petitioner did not wilfully and knowingly claim more than was due him, and that by his statement he had no intention to mislead.</p> <p>On the above facts the judge ruled :</p> <p>“1. That the materials furnished under the first named contract cannot be apportioned so that a lien can be enforced for a part of the said materials, and as notice of an intention to claim a lien for materials was served after some of the materials were furnished, a lien cannot be enforced for any of the materials furnished under said contract.</p> <p>“ 2. That the said statement filed in the registry of deeds is insufficient as far as it applies to the first contract, in that it fails to state the entire contract price, and no lien can be enforced for the labor performed under said contract.</p> <p>“ 3. That a lien should be established to secure the payment of $8.10, and the property be sold, and the proceeds applied to the discharge of said claim.”</p> <p>If the rulings were correct, a decree was to be entered in accordance therewith; if the petitioner could maintain a lien for the materials furnished under the first contract after the service of the notice, and for the labor also, a lien should be established for $'268.85; and if no lien could be maintained for the materials so furnished, a lien was to be established for $135.60.</p>

<p>Petition to establish the truth of exceptions, alleged by the petitioner, in an action brought by him against the respondents, Marquis F. Dickinson, Jr., George F. Richardson, Hollis R. Bailey, and John L. Hunt, as attorneys at law, for negligence in conducting his defence in a certain action brought against him by one Mira Beals in the Superior Court. The exceptions were'disallowed by Braley, J., who presided at the trial in the Superior Court. The facts appear in the opinion.</p>

<p>Personal Injuries ■— Elevator— Statute.</p> <p>The St. of 1882, c. 208, amending the Pub. Sts. c. 104, § 14, and providing that “ all elevator cabs or cars, whether used for freight or passengers, shall be provided with some suitable mechanical device, to be approved by ” the inspectors of factories and public buildings, “ whereby the cabs or cars will be securely held in the event of accident to the shipper rope, or hoisting machinery, or from any similar cause,” requires that an elevator be provided with some suitable mechanical device, to be approved by the inspectors, designed for the purpose of securely holding the elevator in the event of an accident, and does not impose the duty of having such a mechanical device attached to the elevator as will surely and securely, under all circumstances, hold it in the event of an accident.</p>

<p>Exceptions — Inferences of Fact.</p> <p>At the trial, without a jury, of an action, the plaintiff was the only witness, and at the conclusion of his testimony the judge found for the defendants. When the case came on for argument in this court, it was suggested that the bill of exceptions raised no question of law, and an opportunity was given to obtain an amendment of the exceptions from the judge who tried the case. The concluding part of the bill of exceptions, as amended, was as follows: “ The court, assuming the plaintiff was a credible witness, found on the evidence for the defendants, and directed judgment to be entered for them. To this the plaintiff duly excepted.” Held, that no error of law appeared in the exceptions.</p>

<p>Petition to vacate a judgment entered in the Superior Court by agreement of the counsel of the respective parties, in an action brought by the petitioner against the respondent. Hearing before Hammond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The original action was an action of tort for personal- injuries, in which the ad damnum was placed at $3,000, wherein the present petitioner was the plaintiff and the present respondent was the defendant. The action was brought by Edward J. Jenkins, an attorney at law. The writ, dated March 7, 1892, issued out of the Superior Court,, and was returnable in this county. The writ was duly entered on the first Monday of April, 1892, together with the declaration setting forth the cause of action, and Jenkins appeared as counsel of record therein for the plaintiff, and William B. Sprout appeared as counsel of record for the defendant. Jenkins afterwards, on July 13, 1892, made with the defendant a settlement of the action for the sum of $750, which was paid by the defendant to Jenkins. Thereupon Jenkins, representing the plaintiff, and Sprout, representing the defendant, signed the following agreement: “The above case being settled, it is agreed that judgment may be entered therein for the plaintiff for seven hundred and fifty dollars without costs, and that entry may be made of judgment satisfied ”; which agreement was duly filed on July 13, 1892.</p> <p>Evidence was introduced by the petitioner showing that she employed Jenkins as her attorney in the action, and evidence was further admitted, against the respondent’s objection, that Jenkins was not authorized by the petitioner to make the settlement, but was told by her not to compromise for the sum of $750 ; and that the petitioner in no way informed the respondent concerning any authority of Jenkins. There was no evidence tending to show that the compromise and settlement were not made in good faith on the part of the respondent. No evidence was introduced as to whether the settlement was a reasonable settlement.</p> <p>The judge ruled, as matter of law, that Jenkins, as an attorney for the plaintiff, had, under the circumstances, no authority to make the settlement of the case; and.ordered judgment in the original action to be vacated, and the action to be brought forward for trial, upon the petitioner paying to the respondent, or into court for the use of the respondent, the sum of $750, with interest and costs of the respondent in the petition, which sums were paid into the hands of the clerk of the court, in pursuance of the order. The respondent alleged exceptions.</p>

<p>Devise and Legacy — Conveyance by Cestui que Trust to Trustee upon Agreement for Support during Life.</p> <p>A testator, by his will, provided as follows: “ To my beloved wife C. all of the residue of my property, real, personal, or mixed: at any time that she wish: and until she shall wish to use the same, to relieve her from the care, and trouble of taking care of the same, I direct that the trustee hereafter named, to pay her any sum of money, or give her any of said property that there is remaining. At her decease after paying all her debts and funeral charges and erecting suitable gravestones or monuments: all of said property then unexpended to my said son.” He also appointed S. executor and trustee. C. conveyed to S. all of the residue bequeathed to her, in consideration of his agreement to support her during her life, to provide for her a proper burial, and to erect 'a suitable monument over her grave. A jury, upon issues submitted to them, found that she was of sound mind when she executed the conveyance; that it was not procured by the fraud or undue influence of S.; that she, being of sound mind, assented to the allowance of his account; and that such assent was not procured by the fraud or undue influence of S. Held, that a decree of the Probate Court, allowing the account of S., must be affirmed.</p>

Bill in equity, filed January 7, 1885, by the executors of the will of Gideon S. Holmes, to obtain the instructions of the court as to the construction of the will, and alleging the following facts. Gideon S. Holmes, died on February 29,1880, leaving a will, dated March 24,1876, which was duly admitted to probate, and letters testamentary issued to the plaintiffs, the executors therein named. Among other provisions of the will was the following: “ Sixth.

<p>Devise and Legacy — Execution of Power of Appointment — “Request'” — Trust.</p> <p>By an indenture of trust, executed before her marriage, a woman conveyed certain property to trustees upon the trusts to pay the income to her for life, and, at her death, “ to pay, distribute, and convey said trust property and estate to and among such persons or for such objects and purposes as I shall by my last will and testament . . . limit and appoint.” She married, and died, leaving a will, by which she gave all the residue of her property to her husband, his heirs, and assigns forever, “ meaning and intending to include all trust estates over which I may have disposing power, it being my request that my dear husband assign by will what of this property I now leave him he has not expended to such of my relatives as he in his judgment may think may need it.” She left no issue, and no father, mother, or sister, but she left a brother- Her other near relatives were uncles and aunts, and the children of deceased uncles and aunts. Her husband survived her, and died intestate, leaving as his only heir and next of kin his father; and at the death of his wife he was insane, and remained so until his death. Held, that the will was a valid execution of the power of appointment reserved in the deed of trust; that, by the will, the husband of the testatrix took the property absolutely; and that the request in the will did not constitute a trust, but a recommendation to the husband which did not affect his title to the property.</p>

Tort, for personal injuries occasioned to the plaintiff by the falling upon him of a marble slab belonging to the defendant. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in-substance as follows. The defendant was a marble cutter, and occupied in his business the street floor of a building on Beverly Street in Boston.

Tort. The amended declaration was as follows : “ The plaintiff says that the defendant is a street railway company, owning and managing a street railway between Peabody and Salem, in the county of Essex, and the defendant negligently, and without right, left several street railway cars standing unguarded in one of the public streets of said Salem a long time, to wit, for seven days ; that said cars were furnished.with dangerous brakes, with a brake handle on each platform of…

Tort. The declaration was as follows: “ The plaintiff says that he is the duly appointed administrator of Albert G. Gay, late of said Salem, deceased, and that he brings this action under chapter 140 of the Acts of 1886, for the use of the father and mother of said Albert G., (he having left no children and no widow,) as the next of kin of said Albert G. The plaintiff further says, that on October 15, 1890, his intestate lost his life by reason of the negligence and…

<p>Statute of Limitations — Acknowledgment of Debt.</p> <p>A writing, signed by a debtor and delivered to his creditor on the day of its date, in these words, “Rec’d of C.,” the creditor, “ the sum of seven hundred dollars at various times to date, which is hereby acknowledged,” is a sufficient acknowledgment to take the debt, no part of which has been paid, out of the statute of limitations.</p>

<p>Contract upon an account annexed. Writ dated March 24, 1890. Answer: 1. A general denial. 2. The statute of limitations. Trial in the Superior Court, without a jury, before Bond, J., who ruled that the evidence was not sufficient to entitle the plaintiff to recover, and found for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Devise and Legacy — Petition for Instructions — Mortgage—Liability of Personal Estate for Payment of Mortgage Debt.</p> <p>A testatrix, by her will, provided as follows: “ I give and bequeath to my husband, R., my household furniture, barn and house and land, . . . where we now live, outright, and the income of all my real and personal estate as long as he lives; after his death it is to be equally divided among my brothers and sister,” naming them. The will was made three days before the death of the testatrix. Four years previously the estate described in the will was purchased by her by a deed, which named the true consideration, and recited that the estate was subject to a certain mortgage, “ which the grantee is to pay, . . . being a part of the consideration of this deed.” The mortgage became due in about three months after the date of the deed. The testatrix called upon the mortgagee, and said that she had some money coming in soon with which she would pay the mortgage, and asked that the mortgage might remain. No formal agreement for its extension was made by the mortgagee, but it was understood between the testatrix and the mortgagee that it might “ remain ” until the mortgagee desired its payment. She continued to pay interest on tho mortgage while she lived, but the mortgage was not paid. Held, upon a petition by tlie executors of the will for instructions, that they ought not to pay the mortgage debt.</p>

<p>Devise and Legacy — Annuity—“ Representative.”</p> <p>A testator, by his will, gave annuities to his two sons, his daughter, his son in law, and his two sisters, each for the life of the annuitant, to a grandson an annuity “ until my estate is settled,” to a niece an annuity for ten years, and to F., another grandson, an annuity during his minority, and a certain sum when he attained his majority. He then provided as follows: “ At the death of my last remaining child, including my son in law, L., I order my estate to be closed, and the amount left to be equally divided among my grandchildren and the representative of a-ny deceased grandchild, excepting G., and E. the wife of J.; the part of E. I give in trust to her brother A., for her use, free from the claims of said J. or of his creditors, and at her death what may remain I wish to have equally divided among her sisters." To G. he gave a legacy of a certain sum. He also gave other annuities to several persons, one of which was to continue “ during the life of W.’s widow, and during the life of his sister C.” The others were given as follows: “ I give annuities to the following persons, viz.” Then followed a list of six names, with an amount after each. Some of these annuities were changed in amount by codicils, but they were all given generally without any express designation of the term for which they were to be paid. The will contained no in testimonium clause, and the last clause but one was as follows: “ I hereby authorize a majority of my executors or trustees to pay to any one, or more than one, of my grandchildren, or the widows of my grandsons, that may be needy, any portion of surplus income from my estate, after all my legacies have been provided for, not exceeding one hundred dollars monthly to each; any allowance made to my granddaughter E., the wife of J., is to be placed in the hands of her brother A., for her use. And I desire that my estate may be divided as provided in my will, when all but one of my children are dead, and I order my trustees to keep in their hands ” a stated amount of certain bonds and a specified number of shares of certain stock, “ the income of which to be used, as far as needed, to pay the annuity due to such child, and .when the last child dies, this fund is to be divided and paid over, as was provided in my original will, to my grandchildren as specified therein.” By a codicil to his will, the testator excluded one of his granddaughters from sharing in the ultimate distribution of his estate, unless the share exceeded a certain sum, the value of an estate which he had purchased for her in his lifetime, and then she was to receive only the excess. Upon a petition by the trustees under the will for instructions, it appeared that the only annuitants living were one son, two grandsons, and three granddaughters of the testator; that his grandson F. and his granddaughter E. had died; and that some of the deceased grandchildren left a widow and children, and some died testate, and some intestate. Hdd, that the testator intended that the estate generally should be divided when all but one of his children were dead, but that certain specific property should continue to be held by the trustees, the income of which should be used in paying the annuity to the child who remained alive; that the amount and character of the funds to be retained by the trustees to pay such annuitant must be settled by a single justice; that the remainder of the estate was to be divided equally between the grandchildren living at the death of the last but one of the testator’s children, and the representatives of the grandchildren who had died before that time; that the representatives of F. were entitled to share in the amount to be distributed; that the word “representative” meant the distributees of each deceased grandchild under the statutes of distribution, and not his executor or administrator; and that the share of E. should be divided equally among her sisters living at the time fixed for distribution.</p>

<p>Constitutionality of Statute — Equity—Creditors’ Bill — Beneficiary Association — Statute.</p> <p>Section 15 of the St. of 1888, c. 429, enacting that “ the money or other benefit, charity, relief, or aid to be paid, .provided, or rendered by any corporation authorized to do business under this act, shall not be liable to attachment by trustee or other process, and shall not be seized, taken, appropriated, or applied by any legal or equitable process, nor by operation of law, to pay any debt or liability of a certificate holder or any beneficiary named therein,” is constitutional.</p> <p>The right to maintain a bill in equity, under the Pub. Sts. c. 151, § 2, cl. 11, as amended by the St. of 1884, c. 285, to reach and apply, in payment of the plaintiff’s claim, money due from a beneficiary association to one of its members, is cut off by the St. of 1888, c. 429, § 15.</p>

<p>Divorce — Practice—11 Pending” Case — Petition to have Decree Nisi made A bsolute — Statute — Finding.</p> <p>A decree nisi was granted in a libel for divorce, in 1871, and nothing further was done in the case until the April term, 1877, when the following entry was made, by direction of the presiding justice, in that and other pending libels for divorce, in which nothing appeared to have been done for some time: “ Ordered that said libel be dismissed from the docket.” The object of this order was, not to dismiss such cases absolutely, but to relieve the docket and dispense with the necessity of calling them whenever the docket was called, leaving parties, if for any reason further action was required, to move that the entry be stricken off and the case brought forward. Such a motion was made at the hearing of a petition, filed in this court in 1892, to make the decree absolute, and was granted, so far as the justice had power to do so. Held, that the ease was “ pending ” in this court, within the meaning of the St. of 1887, c. 332, which, by § 1, gave the Superior Court exclusive original jurisdiction of all causes of divorce, and, by § 5, provided that the act should not affect any case pending in this court at the time when it took effect.</p> <p>If the libellant in a libel for divorce, in which a decree nisi was entered in 1871, fails to satisfy the justice who hears his petition, filed in this court in 1892, to have the decree made absolute, that the entry of the decree nisi was published, as required by the St. of 1867, c. 222, § 2, the petition must be dismissed, unless he is, by subsequent statutes, entitled to a decree absolute.</p> <p>The libellant in a libel for divorce, brought under the Gen. Sts. c. 107, § 7, after - the St. of 1870, c. 404, took effect, who has obtained a decree nisi, but has failed, to make publication thereof, as required by the St. of 1867, c. 222, § 2, is entitled, under the Pub. Sts. c. 146, § 3, the parties having lived separately for three consecutive years next after the decree, to have the decree made absolute.</p> <p>The libellant in a libel for divorce, in which a decree nisi was entered in 1871, filed a petition in this court in 1892 to have the decree made absolute. At the hearing, the petitioner failed to satisfy the judge that he had made the publication required by the St. of 1867, c 222, § 2, and it was found that the petitioner, after the decree nisi, went to another State and there married again, six or seven years afterwards, supposing that he had obtained an absolute divorce; and that, after living with the second wife a year or so in that State, they came - to this Commonwealth, where they continued to live until her death, about a year and a half before the filing of the petition, and where he still lived. Held, upon report, that the case should stand for a further hearing, in order that the petitioner might show, if he could, that publication was made, or what his reasons were, if any, for supposing that he had obtained an absolute divorce.</p>

<p>Personal Injuries — Negligence — Boxing of Machinery—Condition of Room as to Light—Slippery Condition of Floor — Risk of Employment — Fellow Servant — Allegation in Declaration.</p> <p>An employee slipped on the floor of the room in which he was working, caught his foot between a coupling on the shaft and the floor, and was injured. In an action against the employer, it appeared that under the circumstances there was no duty on the part of the employer to instruct the employee that the coupling on the shaft was not boxed, and the room was properly lighted. There was no allegation in the declaration that the defendant was negligent in allowing the floor to be “ slushy,” but it appeared that, if such was its condition, it was caused by oil from the machinery, of the oiling of which the plaintiff had charge. Held., that, if it was the normal condition of the floor to be wet and slippery, this was a risk which the plaintiff assumed; that if such was not its normal condition, but the slipperiness was caused by the neglect of the man employed to look after the pipes, this was the fault of a fellow servant, and that the plaintiff could not recover.</p>

<p>Personal Injuries — Master and Servant — Dangerous Machine.</p> <p>In an action at common law for personal injuries received by the plaintiff while at work for the defendant, there was evidence that at the time of the accident there was in the room where the plaintiff worked a horizontal shaft, twelve feet long and about one foot above the floor, resting on bearings at each end, to which power was communicated by a belt from an upper shaft; that, to prevent longitudinal vibration of the lower shaft, an iron collar was fastened to one end of it by a set screw, the end of which projected half an inch outside the collar; that such a shaft near the floor was a common and proper method of distributing power to the machinery, and that the device to prevent vibration was in ordinary and common use, and preferable to any other, although the collar could have been secured to the shaft without a projecting screw or nut ; that at the end of the shaft was an upright post, extending from the bearing in which the end of the shaft rested to the ceiling, the object of which was to hold the bearing in place, and to protect any one from getting on to the pulley, belt, or shaft; that the plaintiff, who was sixteen years old, and of ordinary intelligence, had been in the defendant’s employ three months) doing odd jobs about the shop, and at various times, amounting in all to three or four days, working on a machine; that on the day of the accident he was working on a machine the nearest part of which was five feet and four inches from the end of the shaft where the collar was; that on the other side of the shaft, and about the same distance from it, was another machine, at which there was another workman ; that while at work the plaintiff had occasion to pass from his machine to hand some work to the other workman; that in so doing he went “the shortest way, regardless of the machinery, and went right up to the revolving shaft,” instead of going around it as he might have done; that his trousers were caught by the set screw, and he was thrown down and injured; and that when he was caught, as he himself testified, he was not looking down at the shaft, but over it, and straight at. the workman who had just taken the work from his hand, and that he did not know that the screw was there. The evidence was conflicting on the question whether this screw was visible when the shaft was revolving. There was also evidence that the plaintiff “ was not a very careful boy around machinery,” and “ would get too near the machines, and would not apparently know where he was.” Held, that there was no evidence that there was a breach of any duty on the part of the defendant which he owed to the plaintiff. Held, also, that the defendant was not bound to box the shaft, and that the fact that the collar could be secured to the shaft without a projecting screw or nut was not evidence from which the jury would be warranted in finding that the defendant was not justified in using the device.</p>

<p>Equity — Mortgage in Fraud of Insolvent Law — Mortgage not in usual Course of Business — Preference — Findings of Master — Presumptions of Fact — Costs.</p> <p>On a bill in equity, brought by the assignees of H., an insolvent debtor, against M., to set aside a mortgage given to him by H. as a fraud on the insolvent law, it appeared that H. applied to M. for a loan of $6,000, and that a portion of this sum was paid to H. at once, for which he executed a bill of parcels, afterwards exchanged for a bill of sale of his fixtures, and a part of his stock in trade. M. put his hand on the articles, saying that he took possession of them, and told H. that he left them with him as his agent or bailee. A month later, after M. had examined H.’s stock, and a full schedule had been made out, and M. had satisfied himself that H. was doing a profitable business, a mortgage of the greater part of H.’s goods was made for $6,000. M. redelivered the goods covered by the bill of sale, paid to H. a further sum in cash, and agreed to give him the balance of the $6,000 in goods which H. purchased from M. in the line of his trade. The mortgage was executed without haste or secrecy, and with the knowledge and approval of at least two of H.’s principal creditors, who were pot friendly to or co-operating with M., and H. stated to M., to whom the fact that H.’s property was insufficient to pay his debts was not known, that the amount advanced would enable him to pay his debts and go on. For move than a month afterwards H. did go on with his business, and then, upon M.’s discovery that the conditions of the mortgage had been broken, and that probably a fraud had been practised upon him, H. absconded. There was no evidence beyond the fact of his absconding, and the state of his assets, that he kept any property from his assignees, and the indications were that he carried nothing away with him, and that he spent all that he got in paying debts, and in the regular course of his business. Held, that it was impossible to discover any intention of M. to give a preference in this transaction, and that such an intention was disproved by the fact that neither party doubted that the bill of sale given for the money first advanced, whether a sale or a mortgage, was valid.</p> <p>The proposition that if a mortgage is given on the mortgagor’s whole stock in trade, at his only place of business, not merely warrants a finding, but, as matter of law, raises a prima facie presumption, that the mortgage is not given in the usual course of business, and that the mortgagee has reasonable cause to believe that a fraud on the insolvent law is intended, was held to narrow too much the function of the master as a judge of fact.</p> <p>Presumptions of fact generally are questions of fact, and are merely the major premises of those inferences which juries are at liberty to draw, in the light of their experience as men of the world, from the facts directly proved.</p> <p>The question whether a mortgage was not made in the usual and ordinary course of business of the debtor, within the meaning of Pub. Sts. c. 157, § 98, is a question of fact, and whether, if it was not so made, the inference shall be drawn that the mortgagee had reasonable cause to believe that a fraud on the insolvent law was intended, is another question of fact.</p> <p>A loan upon mortgage made to a debtor in embarrassed circumstances for the purpose of enabling him to pay his debts and go on, is not necessarily a fraud on the insolvent law.</p> <p>In proceedings by the assignees of an insolvent debtor to set aside a mortgage given by him in alleged fraud of the insolvent law, where the parties are strangers, and the defendant is not concerned with the fact that the plaintiff is a trustee, the full court, on appeal, will be slow to disturb the discretion of the single judge as to costs where the decree on the merits is affirmed.</p>

Contract, against the executor of the will of William R. Holbrook, to recover the value of a legacy. The writ was dated November 14, 1892. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, which, so far as material to the point decided, appear in the opinion.

<p>Divorce — Libel by Deserting Party — Former Libel.</p> <p>A libel for divorce for desertion, under the Pub. Sts. c. 146, § 1, cannot be maintained by the deserting party, although the desertion was caused by the misconduct of the other party.</p>

<p>Laying out Way across Railroad — Damages—Statute.</p> <p>The laying out of a highway across an existing railroad is such an appropriation of individual property to public uses as to require that the owner shall receive a reasonable compensation therefor ; and, at the trial of a petition for the assessment of damages caused by such a laying out, evidence of the value of the land taken is rightly admitted, and a ruling that the petitioner is entitled to recover for the fair value of its land taken, subject to its use for railroad purposes, is correct.</p> <p>At the trial of a petition by a railroad corporation for the assessment of damages caused bjT the laying out of a street in a city across the petitioner’s railroad, the expenses of making and maintaining in repair the planking,, paving, cattle-guards, fences, signboards, posts, gates, and gate-house are proper elements of damage; but the cost of operating the gates is not to be included in the verdict.</p> <p>The U. corporation constructed a railroad in the city of C. under a statute enacted in 1848, which provided that the railroad should not pass at the same level any highway or avenue to the adjoining city of B. In 1853, the city of C. was given, by statute, full power to determine in what manner the railroad should be constructed across the streets within that city, whether at grade or otherwise, and what securities should be provided and maintained by the railroad corporation at such crossings. Upon a petition of the corporation asking the city council of C. to determine the manner of constructing the railroad across the streets in C., and what securities should be provided and maintained by the corporation,' the city council, in 1854, permitted the railroad to cross the streets and avenues within the city, upon condition that the corporation should provide, set up, and maintain at its own expense, gates wherever the railroad crossed the streets and avenues leading to B., or streets which should thereafter be laid out within the city of C., and one or more men at each crossing to take charge of the gates and to warn travellers of the approach of trains. In 1866, the W. corporation, under statutory authority, took the railroad properties of the U. corporation, and filed a location of the railroad, which, by the statute, it was authorized to locate, construct, and maintain. In 1869, the W. corporation accepted a conveyance of the U. railroad, including all the franchises, locations, lands, and materials belonging thereto, which purchase was also authorized by the same statute, and which conveyance recited that it was intended not to waive but to confirm the title and rights acquired by the W. corporation by its taking and location above stated. The A. corporation, which was the successor of the W. corporation, under the provisions of a statute enacted in 1867, brought a petition against the city of C. for the assessment of damages caused by the laying out, in 1888, of a street in C. across the petitioner’s railroad at a point where its location coincided with the location filed by the U. corporation. Held, that, upon the above facts, the petitioner was not precluded from maintaining its petition.</p>

<p>Libel — Report in Newspaper of Court Proceedings — Mistake in Name of Person mentioned in Report — Right of Person named to maintain Action.</p> <p>A newspaper published the following article: “ H. P. H., a real estate and insurance broker of South Boston, emerged from the seething mass of humanity that filled the dock and indulged in a wordy bout with policeman B.,” etc., referring to a municipal court, and the proceedings of the court in the case. He was, in fact, a real estate and insurance broker in South Boston, and the article was substantially true, except that he should have been called A. P. H. H., instead of H. P. H. There was also a real estate and insurance broker in South Boston named H. P. H., and, in writing the article, the newspaper reporter used his name by mistake. He brought an action against the publisher of the newspaper for libel, and the judge, who tried the case without a jury, “found as a fact that the alleged libel declared on by the plaintiff was not published by the defendant of or concerning the plaintiff.” Held, that this finding was warranted by the evidence. Holmes, Morton, & Barker, JJ. dissenting.</p>

<p>Eviction of Sublessee — Damages — Injunction.</p> <p>On a bill in equity to prevent a continuing trespass, or a permanent injury to the real estate of the plaintiff, the question whether he shall have a prohibitory injunction, or, if the work affecting the property has been done, a mandatory injunction requiring the restoration of the estate to its former condition depends on a consideration of all the equities between the parties, and, in general, where the defendant has gone on without right and without excuse in an attempt to appropriate the plaintiff’s property, or to interfere with his rights, and has changed the condition of his real estate, he will be compelled to undo, so far as possible, what he has wrongfully done affecting the plaintiff, and to pay the damages, and in such a case the plaintiff will not be compelled to part with his property at a valuation, even though it would be cheaper for the defendant to pay the damages in money than to restore the property; but where, by an innocent mistake, erections have been placed a little upon the plaintiff’s land, and the damage caused to the defendant by their removal would be greatly disproportionate to the injury suffered by the plaintiff, their removal will not be ordered, but the plaintiff will be left to his remedy at law.</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 that portion of the plaintiff’s property from which lie had been evicted was an alcove or corner in the basement about twelve by thirteen feet in area; that this was but a small part of the space covered by his lease, and that to restore it to him in its original condition would not only involve material and extensive changes in the different parts of the basement, but would require the removal of a vault enclosed in masonry in the alcove, in which were kept the books of the defendant, and would leave unsupported the vault and safe in the defendant’s banking-room above, in which were kept its securities, bonds, notes, and stocks, to the value of about $5,000,000. It further appeared, that to make the change would cost about $3,500, and would compel the defendant to find some other place of deposit for the contents of the safe while the work was being done, and that the plaintiff’s lease had only about a year and a half longer to run. The defendant asked for a decree which would permit it to retain the space occupied by its vault, and to build a brick wall across enclosing the vault, and to give the plaintiff a space somewhat larger than this in the front part of the basement adjoining the portion covered by his lease, and which should also require it to restore to its original condition, so far as possible, all the remainder of his premises. The plaintiff, who was a mason and builder, and who used the premises only as a place for the storage of doors and window sashes, and other similar property, conceded that the proposed change would not leave his estate in any particular less desirable for any use to which he might wish to put it, and gave as his only reasons for his unwillingness to accept the substituted space that he had not been treated properly by the defendant, and that he thought it easier for the defendant to arrange a settlement with him. Held, that it would be inequitable to compel the defendant to expend a large sum of money, and to suffer in addition great inconvenience and loss in its. business, simply to enable the plaintiff to enjoy for a year and a half the use of the basement, including the space in the alcove, instead of the same basement without that space, and with a greater space added to it on the opposite side towards the front, and that the case showed no such deliberately wrongful conduct on the part of the defendant as should deprive it of the benefit of these equities.</p>

<p>Present: Field, C. J., Allen, Holmes, Knowlton, Morton, Lathrop, & Barker, JJ.</p> <p>Personal Injuries — Loss of Life — Negligence — Due Care — Expert.</p> <p>The plaintiff’s intestate, while in the cellar of a building of the defendant in the performance of his duty as an employee of the water board of a city, for the purpose of reading a water meter, was killed by inhaling gas. There was no evidence as to how the gas got into the cellar, nor any evidence of the defendant’s negligence beyond the facts that the gas was there, and that the ventilation of the cellar was stopped up. Held, that the presiding justice erred in directing a verdict for the defendant; that the jury might have found that the defendant knew, or ought to have known, of a dangerous accumulation of gas in the cellar, and might have averted the danger by opening the ventilator, or putting the meter in a different place; and that, by omitting so to do, the defendant was guilty of negligence toward the deceased, who, though there may have been a perceptible smell of gas when he entered the cellar, the jury might have been warranted in finding, did not take such a risk as put him beyond the protection of the law.</p> <p>In an action for the death of a person caused by inhaling gas, a physician testified that the deceased had a period of conscious suffering before death. The physician had not had any experience of the kind of asphyxiation in question, or with patients, but his general competency as an expert was not questioned. Held, that, although it might not be admissible merely to repeat what a witness had read in a book not itself admissible, still, when one who was competent on the general subject accepted as probably true a matter of detail which he had not verified, the fact gained an authority which it would not have had from the printed page alone, and, subject to the exercise of some discretion, might be admissible.</p>

<p>Personal Injuries — Defective Machine — Master and Servant — Negligence — Evidence.</p> <p>The obligation of a master to see that a machine on which his servant is set to work is in a safe condition, and suitable for the purpose for which it is used, applies to all of its parts; if some of its parts, by reason of its construction and operation, require frequent replacement, such parts, when adjusted in the machine, become as much a part of it as if included in its original construction, and a defect in one of them is a defect in the machine; and the duty of seeing that such parts are not defective is one incumbent on the master, who, if he delegates the duty to persons whom he believes to be, and who are in fact, competent to perform it, is liable for an injury to his servant resulting from their negligence in failing to discover, by the exercise of reasonable care, a' defect in such replaced parts of the machine.</p> <p>In an action for personal injuries occasioned to the plaintiff, a woman, while in the defendant’s employ, by the breaking of a punch in a cartridge machine which she was operating, she testified that she was required to examine the cartridge shells from time to time to see if they were scratching; that, on the day of the accident, she found that they were scratching, and informed the foreman of it, and lie sent for A., the second hand, to look after the machine; that A. took out the dies and punch, and put in new dies and a new punch, and then told the plaintiff to start the machine by a signal, which she did; that the first time the punch went down through the plate and dies all right, there being no shell, but the second time it broke, and caused the injury complained of; that, before she started the machine, she saw a small black mark extending half-way round the punch about in the middle of it; and that “ she did not know what this black mark meant, but that it looked like a knitting needle that had gone rusty and black.” There was also testimony tending to show that the punch broke in the middle; and some of the witnesses testified that they never knew before of a punch breaking in the middle, but that they usually bent or broke at the point. It also appeared that, after the accident, the broken punch was examined by the foreman and A.; that the former passed it to B., who was the defendant’s agent and superintendent, and who examined it and passed it back to the foreman, who threw it away; and that the only other person who appeared to have seen it was a woman, who worked on a machine near the plaintiff, and who testified that she “ could see that it [the punch] was broken in one place in the middle,” but that “ she did not know what the condition of the broken surfaces were, as the foreman sent her to her work.” The foreman and A. testified that they saw nothing the matter with the punch. B. testified that, though he found, on examining it with a microscope, there was a flaw in it, the flaw did not extend to the outside; that he did not think it was possible to have discovered the defect which he saw on the inside of the punch; that, in his judgment, the flaw which he found was not sufficient to have caused the defect; and that bad punches were usually thrown away. The material from which and the manner in which the punches were made, and the system of inspection adopted by the defendant, were in evidence. There was also testimony that, if there was a crack on the outside, it might be filled up in polishing or in turning down the punch. Held0 that the case should have been submitted to the jury.</p> <p>In an action for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the breaking of a defective punch in a machine which she was operating, the plaintiff offered to show that, at a former trial of the case, the defendant’s agent and superintendent, who was called as a witness by the defendant, testified, on cross-examination, that the flaw in the punch might have extended to the outside, and that it might have been discovered. Held, that the evidence was rightly excluded.</p>

<p>Personal Injuries — Negligence — Joint Tortfeasors.</p> <p>If a person has created a nuisance in a public street, and a city is in consequence thereof obliged to pay damages to a traveller on the street, the fact that the city is in fault in not removing the nuisance does not make it in pari delicto with the creator of the nuisance, and prevent recovery against him.</p> <p>A city having been held liable for personal injuries to a traveller on one of its public ways, by falling into an uncovered window well, or sunken area projecting into the way for the purpose of lighting the cellar of a building abutting thereon, thereupon brought suit to recover against the owner of the adjoining premises. In the latter action it appeared that the area, which was lined with bricks laid in courses in cement, abutting at both ends against the foundation walls of the defendant’s building, was not made until after the erectioñ of the defendant’s building, and was not on the defendant’s land; that it had not been made by him, and that he had done nothing to maintain it, but whether it had been made by some one of his predecessors in title or by the city was not shown. It further appeared that the area had been in substantially the same condition for twenty years preceding the accident, and that the defendant had acquired the property six years before the accident, at which time it was, and ever since has been, in the possession of a tenant at will of the defendant’s grantor without any contract with the defendant as to repairs. Held, that there was no fact found which was so conclusive against the defendant that it could be said, as matter of law, that the plaintiff was entitled to judgment.</p>

<p>Tort, by the executrix of the will of William L. Hubbard, for causing his death at a crossing at grade in Richmond by the railroad tracks of the defendant.</p> <p>At the trial in the Superior Court, before Bishop, J., there was evidence tending to show that the deceased, who was between fifty and sixty years of age, but whose sight and hearing were good, was, in the forenoon of May 18, 1891, driving in a wagon along the highway, and that, as he was approaching the railroad tracks of the defendant on the southerly side, he stopped at a point between fifty and a hundred feet from the railroad crossing to wait for the passage of a western bound freight train on the northerly track; that when the rear end of the freight train had passed two or three car lengths beyond the crossing the deceased stood up in his wagon, hit his horse with the lines, and drove upon the track at a slow trot, and was struck by an east bound express passenger train on the southerly track, and received the injuries which resulted in his death. It further-appeared that the passenger train whistled at a whistling post about eighty feet west of the crossing, and again when the deceased drove upon the railroad track, and that he was looking west and saw the express train.</p> <p>One Nichols testified that at the time of the accident he was putting the boards down around the bottom of a hen-house on the westerly side of the highway north of the railroad track; that his attention was first attracted to the scene by the slowing up of the passenger train ; that he then looked up, and saw the wheel of the wagon flying in the air; that he did not see the passenger train, nor did he hear any whistle when he saw the passenger train slowing up, but that he saw the freight train just before the passenger train came up; that he did not see the deceased drive toward the crossing; that he first noticed the freight train just before the passenger train came up, but the freight train had passed out of his sight before he saw the passenger train; that if the freight train was passing that crossing, a whistle from either direction might be heard by one standing near it; and that the passenger train that day was a little late. He further testified: “ I heard the express train whistle before the accident at the crossing; I heard it perhaps for half an hour, of course not as long as that; I could not say whether I heard it whistle at the first whistling post west of the station or not. I don’t know. I was not paying any attention to it. I did not hear any whistle immediately upon the accident happening. I did not hear any bell. I never noticed anything at all about the bell at the time.” On cross-examination he testified: “ I do not say the express did not whistle at the regular whistling post. I did not say whether it did or not. I was not noticing.”</p> <p>One Yen Bremer testified that at the time of the accident he was working for Nichols on the hen-house fence; that he first looked at the passenger train when he heard the engine give a short whistle, and at that moment the deceased was thrown off his wagon. He also testified: “ I did not hear any bell rung that day at the time of the accident. I don’t think I heard any whistle, except this one I spoke of. I could hear the noise of the cars when they passed there.”</p> <p>The defendant also introduced evidence, and the engineer of the passenger train testified, that the whistle was blown at the whistling post eighty rods west of the crossing, and the bell was rung from the time the whistle was blown until after the crossing was passed. The first that he saw of the deceased was just as the horse’s head appeared from behind a ledge of rocks on the westerly side of the road, and he immediately blew a second whistle to give warning at a distance of about two hundred feet from the crossing. When the deceased appeared “ he apparently then was whipping his horse up with the end of the lines to urge him across the crossing; he apparently heard the whistle, and looked right at me when I first saw him.”</p> <p>The fireman of the passenger train testified that there were two long and two short whistles blown at the whistling post, and the bell was rung continuously up to and over the crossing.</p> <p>After the evidence was in the defendant asked - the judge to rule that, upon the whole evidence, the plaintiff was not entitled to recover, and to direct a verdict for the defendant. The judge stated that he should so rule unless the plaintiff desired to go to the jury upon the question of whether the bell was rung or the whistle sounded as required by the statute, and if not, whether the plaintiff’s intestate was guilty of gross or wilful negligence. The plaintiff elected to go to the jury upon these issues, and the judge submitted to the jury, with other instructions which were not excepted to, the following questions, in writing, with instructions, if they should answer either one of the questions in the affirmative, to return a verdict for the defendant; but if they answered them in the negative, to return a verdict for the plaintiff. First, “ Was the bell of the engine of the express train rung continuously, or alternately with the sounding of the whistle of the engine, for the distance of eighty rods from the crossing, and until the engine had passed the crossing ? ” Secondly, “ Was the deceased guilty of gross or wilful negligence at the time of the collision, and did the same contribute to the injury?”</p> <p>The jury answered both questions in the negative, and returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Public Easement — Rights of the Owner of Land under the Highway — Excavation under Sidewalk — Negligent Management of Sewers — Action — Damages.</p> <p>The general easement in the public acquired by the location of a highway extends to the limits of a highway as located, and includes various underground uses, of which the construction of sewers is one.</p> <p>The owner of land over which a highway is laid retains his right in the soil for all purposes which are consistent with the full enjoyment of the easement acquired by the public, subject, however, to municipal or police regulations.</p> <p>The owner of land over which a highway is laid has a right to excavate under the sidewalk, if he thereby violates no ordinances or regulations of the city, or interferes with no existing public use of the street.</p> <p>The owner of land over which a highway was laid extended his cellar under the sidewalk so that its outer wall came just within the outside line of the sidewalk, and to within one or two feet of a sewer in the highway which, on that side, was constructed of common field stones, and deepened the cellar so that its floor was two feet below the level of the bottom of the sewer. The owner of the land brought an action against the city for damages for injuries occasioned by the leaking of the sewage into his cellar. Held, that, in the absence of knowledge that the sewer was improperly constructed, the owner of the land might well assume that it was tight, and due care on his part did not require him to guard against a defective construction of the sewer, the existence of which he had no reason to suspect.</p> <p>The duty of keeping a sewer in repair rests upon the city, and if it is necessary, in order to prevent the leaking of sewage from the sewer into the cellar of abutting premises, to change the location of the sewer to another part of the street, it may be done by the city through its superintendent of sewers without the order of the board of mayor and aldermen, and the city will not be excused for a negligent omission to make the sewer safe merely on the ground that the power to fix its location and to prescribe a plan for its construction rests with the board of aldermen, when that board has not exercised that power.</p> <p>The liability of a city for damages caused by the leaking of sewage from a sewer constructed by it in the highway into the cellar of an abutting owner does not depend upon the assessment of the abutting owner for the cost of the sewer, but upon the injury done to him by the nuisance, and the fact that his premises are not connected with the sewer does not prevent him from recovering for the damages sustained by its negligent construction or maintenance.</p> <p>In an action for injuries caused by the leaking of sewage into the plaintiff's cellar, damages for the- injury to his health and business, where they are specially alleged, as well, as the injury to his property, may be recovered.</p>

<p>Marine Insurance — Freight of each successive Voyage — Deviation — Indorsement on Policy— General Average.</p> <p>A policy of insurance against perils of the seas, fire, etc. insured “ $5,000 on freight, under deck, on board or not on board said vessel, at and from N., via P., to S., and at and thence, privilege lumber port, to ports discharge, and/or loading west coast South America and at and thence to port of advice &/or discharge in Europe or Atlantic United States and fifteen days on vessel in port after arrival.” Then was added, “ Held covered in eve'nt of deviation or ciiange of voyage, for not exceeding eighteen months from date of this policy, at tariff rates of premium.” The freight was valued at §16,000. The policy, which was a general form for both vessels and freight, contained clauses applicable to different classes of risks. Among them was the following: “ It is also further agreed that voyage policies on freight on board or not on board shall attach at the first port specified, as soon as the inward cargo is landed, and no sooner, whether the vessel be under charter or not, and shall terminate at port or ports of destination with the landing of cargo, in proportion as amount hereby insured bears to full amount of freight or charter for the whole voyage insured. Time risks on freight shall attach and terminate in the same manner, applying to each cargo (or voyage, if in ballast and not chartered) successively, or to each charter successively in case vessel be chartered.” Instead of sailing to the west coast of South America from T., where she took on board a cargo of lumber, the ship went to C., and was there chartered for a voyage to M. On December 12,1891, one third of the cargo having been discharged at C., the defendant indorsed on the policy, “ Having deviated from S. and T. to C., this policy now attaches at and thence via Philippine Islands to port of advice &/or discharge in Atlantic United States, and fifteen days on vessel in port after arrival. Addl". prem. @ 2£ §421. Fuller, Pst.” On January 4, 1892, about two thirds of the lumber having been discharged, the ship caught fire and was scuttled and sunk. The cargo was substantially uninjured, and fullfreight from T. was collected thereon. The ship was beyond repair, and was condemned and sold. Held, in an action on the policy, that it covered only the freight of the voyage then ending, and did not insure any part of the freight of the next succeeding voyage, although there was a charter-party outstanding, and although it was assumed that the plaintiff had an insurable interest, and that this construction was not disturbed by the words “ now attaches ” in the indorsement of December 12,1891.</p>

<p>Contract upon two promissory notes, dated December 4,1891, given by the defendant to the plaintiff. The answer was a general denial. The amended answer set forth that, if the defendant “ made the notes mentioned in plaintiff’s declaration, the considerations for the same are illegal and void. And the defendant says the plaintiff is a broker engaged in the sale and purchase of stocks on margin, so-called; and defendant says that he bought certain stocks on margin from the plaintiff; that the notes mentioned in plaintiff’s declaration were given by the defendant to the plaintiff in payment of margins alleged to have been paid by plaintiff for defendant on stocks sold by plaintiff to defendant on margin; and the defendant says that at the time plaintiff sold him said stocks on margin, and at the time said margins were alleged to have been paid by plaintiff for which said notes were given, the plaintiff was not the owner of said stocks, or certificates of stocks, or the assignee thereof, or authorized by the owner or assignee or his agent to sell said stocks, and that there was no intention on the part of the plaintiff to deliver the certificates of stock so purchased on margin as aforesaid, and no intention on the part of the defendant to receive the certificates of stock or pay the price for the same; that there was a mutual understanding between the plaintiff and the defendant that no delivery or receipt of the stock was intended or expected, or any payment of the price of the stock to be made. The defendant further says that the contract for the furtherance of which the notes mentioned in plaintiff’s declaration were given was a wagering contract, and illegal and void.”</p> <p>Trial in the Superior Court, before Hopkins, J., who directed a verdict for the plaintiff, and, at the request of the defendant, reported the case for the determination of this court. If the ruling was correct, judgment was to be entered on the verdict; otherwise, judgment was to be entered for the defendant, or the verdict was to be set aside and a new trial granted. The facts sufficiently appear in the opinion.</p>

<p>Tort, under St. 1887, e. 270, for personal injuries occasioned to the plaintiff, while in the defendant’s employ as a car cleaner, by being thrown over a seat in consequence of the car in which she was working striking a bunting post with unusual force. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p> <p>The case.was argued at the bar in March, 1893, and after-wards was submitted on the briefs to all the judges.</p>

<p>Equity— Deed •— Finding — Presumption.</p> <p>There is no presumption of law, from the fact that one person was indebted to another, that a deed of land given by the debtor to the creditor, absolute in form, was or was not intended as a mortgage.</p> <p>The finding of a single justice sitting in equity, before whom the witnesses testified orally, that a deed is an absolute deed, and was not intended by the parties as a mortgage, will not be reversed upon a full report of the evidence, unless clearly erroneous.</p>

<p>Equity — Agreement of Compromise — Bill to redeem — Partnership — Practice.</p> <p>A bill in equity against A. and B. sought, as against A., to establish a partnership with the plaintiff, and to obtain a settlement of the same by a disposition of the partnership assets and payment of the debts. Before an answer was filed, the plaintiff and A. entered into an agreement of compromise of their respective interests. Afterwards a supplemental bill was filed, setting up the agreement; and A. filed an answer to both bills, admitting the agreement, and making various denials, upon which issue was joined. The agreement recited the suit and the desire to settle it, and the terms agreed on, whereby A. was to arrange for renewing or discharging the existing mortgage indebtedness upon certain property, a theatre, as to which the partnership was sought to be established, to an amount named; and contained the following clauses : “The completion of said arrangements, being the time and condition fixed for the commencement of the operation of this agreement.” “ Upon the completion of said arrangements and conditionally thereon, and simultaneously with the recording of any mortgages or other encumbrances necessary to carry out said arrangements, said ” plaintiff “ agrees to discharge his suit in equity, and to remove from the record any cloud resting thereon by reason of said suit.” “ Upon the completion of the foregoing arrangements, and conditionally thereon, the parties hereto agree to enter into the following relations for the control and management of said property, and for the division of the work to be done in connection therewith.” “ If A. is unable to carry through the arrangements which have been agreed upon with B., and if then he co-operates with ” the plaintiff, “and the two together raise the money to discharge or renew B.’s indebtedness, so that the property is preserved by their joint efforts, then their interests in said property shall be complete and identical throughout in all respects. The management of the theatre, except leasing, to be under the sole charge of A.” Held, that, it being conceded that the mortgage indebtedness had not been discharged or renewed, the agreement was not a settlement of the original case, as against A.</p> <p>Under the general equity jurisdiction conferred upon this court by the Pub. Sts. c. 151, § 4, a person may maintain a bill against A. and B., seeking to establish a partnership with A. in certain property, and to redeem the property from a mortgage given by A. to B., if the partnership is established.</p> <p>A bill in equity against A. and B. sought, as against A., to establish a partnership in certain property with the plaintiff, and to obtain a settlement of the same by a disposition of the partnership assets and payment of the debts. The bill alleged that B. held four mortgages upon the property, the first two being upon different pieces of property and given to secure the same sum, which the plaintiff admitted to be valid mortgages to secure whatever might have been advanced by B. under the same, and the other two mortgages were questioned; and prayed that an account might be taken of the amounts advanced by B., so far as secured by the first mortgage; that the third and fourth mortgages might be delivered up and cancelled; and that the proceeds of a sale of the property, ordered by the court through a receiver, might be applied to discharge the first mortgage and all other legal indebtedness of the partnership, and from the balance to pay to the plaintiff such sum as should be found due to him upon an accounting. Before an answer was filed, the plaintiff and A. entered into an agreement of compromise of their respective interests, which recited the suit and the desire to settle it, and the terms agreed on, whereby A. was to arrange for renewing or discharging the existing mortgage indebtedness, not exceeding an amount stated, and containing several clauses indicating that the agreement was not to take effect as a settlement until this should have been accomplished. After an answer had been filed by B., the plaintiff filed a supplemental bill, setting up the agreement, and offering to redeem the property from the first two mortgages held by B. Held., that the agreement did not cut off the plaintiff’s right to maintain the bill to redeem, as against B.; and that the case must stand for further hearing.</p>

<p>Insolvent Debtor — Fraudulent Conveyance — Preference — Statute.</p> <p>At the trial of a writ of entry brought by the assignee in insolvency of the joint and several estates of A. and B., partners under the name of A. and Company, who were adjudged insolvent debtors on March 23, 1891, the tenant, a bank, claimed title under a deed from B., dated December 15, 1890, and delivered two days later. B., who was the father of A., furnished all the capital of the firm, and attended exclusively to its financial affairs. On October 16,1890, he borrowed §12,500 of the bank, giving his own note indorsed by his firm, on one month’s time. At the maturity of this note, a demand note was given for the same amount, signed and indorsed in the same manner. Payment of this note was demanded by the bank about December 10,1890. On December 17,1890, the demand note was delivered up to B. by the bank, and cancelled. B. paid the bank the interest then due, and indorsed on the note “ New note, December 17, two months,” the bank entering on its books the payment of the note; and at the same time another note for $12,500, on two months’ time, dated December 17, 1890, was discounted by the bank for B. This note was signed and indorsed in the same way, and was secured by shares of stock of a mining company which had been given as security for the previous notes, and by the conveyance to the tenant of the demanded premises, the conveyance containing an agreement to reconvey on payment of the debt. When the conveyance was made, the liabilities of the firm were over $300,000 in excess of their assets. A. had no individual estate, and B.’s individual estate was less than $100,000. The firm owed on overdue notes $44,500, and notes to the amount of about $38,000 came due in December after the date of the conveyance. During the preceding ten years the firm had lost in speculations and paid out over $500,000 in excess of their profits. There was evidence that, on December 10, B. told the president of the bank that the affairs of the firm were terribly mixed up, and that it would be impossible to pay the note at that time; that he also told the president what property the firm had; and that the president then insisted on further security, and the conveyance was made, and he made no further inquiry after that about the firm or B. The president of the bank, who had had fifteen years’ experience as a bank officer, testified that, in his experience as such officer, he did not recall an instance where a tradesman had conveyed a piece of land to a bank as security for a note held by the bank. Held, that there was evidence for the jury on the following propositions : 1. That at the time of the conveyance B. was insolvent or in contemplation of insolvency. 2. That he made the conveyance with a view to give a preference to the bank. 3. That the bank then had reasonable cause to believe B. to be insolvent, or in contemplation of insolvency. 4. That the conveyance was in fraud of the laws relating to insolvency.</p> <p>At the trial of a writ of entry brought by the assignee in insolvency of B. to recover land to which the tenant claimed title under a conveyance from B. about three months before he was adjudged an insolvent, the tenant requested the judge to instruct the jury that." the demandant must satisfy the jury by a fair preponderance of the evidence that B. was insolvent at the time of the eonveyance; and that, if at that time B. was able to meet his obligations as they came due in the ordinary course of business by resort to the means usual among business men, he was not then insolvent, and the verdict must be for the tenant.” The judge declined to give this ruling, and instructed the jury as follows : “A trader is insolvent within the meaning of the statute when he is unable to pay his debts as they mature and become due and payable in the ordinary course of business, as persons carrying on trade usually do. The test is not whether upon a postponement of the payment of the debts and a financial settlement of the trader’s affairs there is property sufficient to pay them all; that is not the test as applied with reference to an insolvent within the meaning of the statute. It is whether the trader is able, as the debts mature and become payable and due, to pay them as traders usually do. -The statute does not contemplate that a person should have his property in such a condition that he can at any and all times pay his debts in lawful money, but he must be able to pay them as they become due, to meet them as business men usually do. The fact that a person cannot pay without borrowing would not render such person insolvent within the meaning of the statute, provided the borrowing for the purpose of paying is in the ordinary course of business as persons in trade usually do. But if, in order to pay a debt as it becomes due, a trader is obliged to transfer a large part of his assets as security for a loan by means of which he makes payment of that par- • ticular debt, at the same time leaving his other debts not provided for which are certain to become due, and not leaving sufficient assets in his hands to meet them when they become due and when he would have no right to expect that he would be able to meet them, such a payment would not be a payment in the ordinary course of business of persons carrying on trade.” In connection with another branch of the case, the judge used this language : “ If the demandant has satisfied you by a preponderance of the evidence that B. at the time of the conveyance was insolvent.” Held, that the tenant had no ground of exception.</p> <p>On October 16, 1890, B., who was a member of a firm composed of A. and B., and had charge of its financial affairs, borrowed a certain sum of a bank, giving his own note therefor, indorsed by his firm on one month’s time. At the maturity of this note, a demand note was given for the same amount, signed and indorsed in the same manner. Payment of this note was demanded by the bank about December 10, 1890. On December 17, 1890, the demand note was delivered up to B. by the bank and cancelled. B. paid the bank the interest then due, and indorsed on the note “ New note, December 17, two months,” the bank entering on its books the payment of the note; and at the same time another note for the same amount, on two months’ time, dateii December 17,1890, was discounted by tile bank for B. This note was signed and indorsed in the same way, and was secured by shares of stock of a corporation which had been given as security for the previous notes and by the conveyance of a parcel of land by B. to the bank, dated December 15, and delivered December 17,1890. At that date the liabilities of the firm were over $300,000 in excess of their assets. A. had no individual estate, and B.’s individual estate was less than $100,000. On December 10, B. informed the president of the bank of the financial condition of the firm, and the latter then insisted on further security, and the conveyance was made. On March 23, 1891, A. and B. were adjudged insolvent debtors; and their assignee in insolvency brought a writ of entry against the bank to recover the land so conveyed by B. to the bank. The tenant requested the judge to rule that, upon the evidence, the conveyance from B. to the tenant was given to secure a contemporaneous and not a pre-existing debt, and that the demandant could not recover; and that if the note of December 17, 1890, was given and received in satisfaction of the demand note of November 18, 1890, and the latter note was thereupon surrendered and cancelled and the interest fully paid, the parties intending to substitute the new note for the eld, that would constitute a payment of that note, and if this was done, without fraud, and if the conveyance to the tenant was given and received as collateral to the note of December 17, then it was not given to secure a pre-existing debt or claim, and was not in contravention of the insolvent law. The judge declined so to rule, and, after giving full instructions to the jury as to the elements necessary to constitute a preference, instructed them that, if there was an agreement between B.and the bank that if B. would make the conveyance tO' the tenant as security for the two months’ note the bank would loan to B. a sum of money sufficient in amount and for the purpose of paying the demand note, and he made the conveyance, received tire money, and paid the demand note, such conveyance and payment by B. would be the same in legal effect as if the conveyance had been made directly to secure the demand note ; that giving him credit was the same as paying him the money; that the question was whether the arrangement by whicli he raised the money and gave this conveyance was for the purpose of paying an existing debt, the demand note; that if that was the purpose, then it was a preference; and that, if ail the other elements were proved, and the new arrangement was for the purpose of paying the demand note, the legal effect would be the same as though he made the conveyance for the payment of the demand note, and not of the two months’ note. Held, that the tenant had no ground of exception.</p> <p>The Pub. Sts. c. 157, §§ 96,98, relating to preferences under the insolvency law, are not in conflict with the U. S. Rev. Sts. §§ 5136, 5137, defining the powers of a national bank, and authorizing it to hold real estate for certain defined purposes.</p>

<p>Public Schools — Instruction of Children — Statute — Burden of Proof.</p> <p>If the person having a child under his control, instead of sending him to a public school or to a private day school approved by the school committee, prefers to have him instructed otherwise, it is incumbent on him, in order to escape the penalty imposed by St. 1890, c. 384, to show that the child has been instructed for the specified period in the required branches of learning, unless the child has already acquired them; and on a complaint alleging a violation of the provisions of the statute, the defendant may show that for a like period of time with the period alleged in the complaint, during the time alleged in the complaint, the child had been instructed in a private day school not approved by the school committee in the branches of learning required by law to be taught in the public schools.</p>

Indictment, charging the defendant with larceny of certain promissory notes and orders for money from one Wright, on October 4, 1889.

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. At the trial in the Superior Court, before Dunbar J., it appeared that the plaintiff lost his arm while removing waste as it accumulated inside of a cylinder. The judge directed a verdict for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, on January 22, 1891, by falling into an elevator shaft, while in the defendant’s employ. Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Patrick Costello testified that he was one of the inspectors of the city of Boston, whose duty it was to inspect buildings in that city, and to perform the duties imposed upon them by the statutes; that he, with another inspector, was intrusted with the duty of inspecting elevators, hatchways, and hoistways; that he inspected the elevator and connections upon which the injury ■to the plaintiff was received on January 19, 1891, and the elevator had not been- inspected prior to that time; that at that time there were no such automatic guards upon the elevator as are required by the statutes; that he was not sure whether there were any guards at all; that, on January 28,1891, he notified the defendant of their absence, in writing, directing that they should be provided ; that the elevator was an electric elevator, and was directly connected with the electric motor; that he could not recollect whether he had received any notice that a new elevator had been put in before the elevator was first used; that, if such notice had been received, the board of inspectors would have inspected the elevator within a day or two after having received it; that the elevator was a new one, and was entirely complete, except that it had no guards; and that the elevator was put in in November, 1890. On cross-examination, he testified that, in his opinion, there was no danger to a careful man ; and that the well was perfectly light, and there was plenty of light to work by.</p> <p>The plaintiff testified that he had been at work on the elevator eight or nine weeks; that he was doing the same work all the time from seven o’clock in the morning until sometimes seven o’clock in the evening, using the same elevator and car all the time, and the elevator was in the same condition all that time; that his duty was to fill, at the lower floor, a coal car which ran upon a track to and in the elevator car, and that track connected with a similar track upon the roof of the building ; that he then caused the elevator to ascend by pulling the rope or wire running beside the elevator car, stopped it at the top floor, or roof, pushed the coal car off, weighed it, noted the weight upon a slate, pushed the car forty or fifty feet along the track to a chute, dumped it, pushed it back, took it down upon the elevator, and repeated the process every few minutes during the day; that the coal car was of iron, about four and a half feet high, and larger at the top than at the bottom, and weighed about one thousand pounds; that the total weight of the car when loaded with coal was about two thousand pounds; that the elevator car consisted of a platform connected with the lifting ropes by side supports connected with a cross-piece at the top, and was provided with no railing or enclosure; that the elevator shaft extended above the roof, forming a tower with a skylight in the top, and was built of brickwork open on one of the sides to form a doorway just large enough for the coal car to pass through; that on January 22, 1891, he loaded the coal car at the lower floor, got on top of it, as was his custom, pulled the rope, the elevator rose, he stopped it at the roof floor, pushed the coal car off upon the scales about nine or ten feet distant, weighed it, returned to the elevator, marked down the weight on the slate which hung there, let down the car, which had sprung up two or three inches upon being relieved of the weight of the coal car, to the level of the roof floor, waited two or three minutes inside the elevator because it was raining outside, then Went out, pushed the coal car to the chute, dumped it, and pushed it back into the elevator shaft, supposing the elevator car to be still there; that the elevator car was not there, but had gone down, in some way and for some reason to him unknown, so that, instead of pushing his coal car on to the elevator, he pushed it into the shaft, and, losing his balance, fell in after it, and down one or two stories, and received the injuries complained of; that he pushed the coal car because that was the only way in which he could propel it; that there were no handles on the car; that he had to stoop over, pressing both hands against the top of the car when pushing it; that he was five feet and seven inches in height, and, from his position behind the coal car, he could see no part of the elevator car; that before he started from the dumping place he could have walked around the coal car and looked towards the elevator; that the track upon which the coal car ran sloped several inches downward from the elevator to the chute; that there were no automatic guards, or guards of any kind, at the opening of the elevator well at the roof, or on any of the other floors; that if there had been he could not have fallen into .the shaft; that the time which elapsed from his leaving the elevator after writing on the slate until he fell into the shaft was not over three minutes ; and that he knew there were no gates of any kind on the elevator, but had never reported that fact to any one.</p> <p>Upon the conclusion of the plaintiff’s evidence, the defendant asked the judge to rule that the plaintiff had not shown a sufficient cause of action, and to order a verdict for the defendant. The judge ruled as requested, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>II a tax, assessed by a city and paid under protest, has been abated by county commissioners, under the Pub. Sts. c. 11, § 71, and the amount so abated has been repaid by the city, interest thereon can be recovered only from the date of the demand for repayment, and not from the date of the abatement.</p>

<p>Personal Injuries — Defective Highway — Electric Wire — Liability of City.</p> <p>In an action against a city for personal injuries caused by a defect in a highway, the plaintiff’s evidence showed that he was hurt by a discharge of electricity from a loose wire which he took hold of with the intention of removing it from the highway ; that the wire was an acoustic wire used without electricity, but it touched an electric wire which had lost its insulation at the point of contact; that it had been hanging loose for three weeks in such a position that the wind might bring it against the electric wire; that at the time of the accident it was caught on a glass insulator so as to be kept in contact with the electric wire; that the want of insulation of the latter could be seen from the street; and that another accident from the same cause occurred a few minutes earlier. Held, that there was evidence for the jury that the defendant ought to have known of the defect.</p> <p>In an action against a city for personal injuries occasioned to the plaintiff by a discharge of electricity from a loose wire which he took hold of with the intention of removing it from the highway, the defendant asked the judge to rule as follows: “From the fact that a small acoustic wire hangs down and on to the sidewalk there is no presumption that it is charged by electricity. There must be actual notice to the city that it is so charged, or the fa,et must have been so apparent that the city should have known it by the exercise of proper care and diligence in time to have prevented the accident.” The judge declined so to rule, and instructed the jury as follows : " The fact that it [the wire] existed in such shape as it was would make no difference. It must be shown to be a defect in the street, and it must have existed long enough for the city to have known of it, or go long that it ought to have known of it by the exercise of due care, ... It is not- claimed that any one knew it, as I understand, that that wire, as it hung there, was charged with electricity. The question is whether in the exercise of reasonable care the city ought to have known it; and on that you will take into consideration what they ought to have known about the condition of tilings before the wire became charged, as bearing on the question of how much care they should have exercised, how much they ought to have watched to notice the dangerous condition of things.” Held, that the defendant had no ground of exception.</p> <p>A city is liable for not abating a defect in a highway, although the defect was created by a third person.</p>

<p>Written Contract — Oral Evidence.</p> <p>A. and B., a corporation, executed a written contract, which recited the sale by A. to B. of certain articles at a price named, payable upon terms stated, and the agreement by A. not to sell the articles to an)' one in the city where B. was located except to B. so long as B. should not sell the articles below a certain price, and should order of A. a certain quantity of the articles each year thereafter. In an action by A. against B. for goods sold and delivered in pursuance of the contract, which was introduced in evidence, B. offered to prove that, before the contract was drawn up, B.’s president and A.’s agent had a conversation upon the latter’s attempt to sell the former some of the articles, in which the former said that, if the articles would answer a certain purpose, he could use them, but that otherwise he did not want them; that A.’s agent replied that they would be found fit for B.’s use; that tile written contract was then signed ; that the articles were sent, and found upon experiment to be unfit for B.’s use; and that A. was notified of the fact, and the articles were returned to A., who refused to receive them. Held, that the evidence offered was rightly excluded.</p>

Tort, by the administrator of the estate of Anna I. Hartley, for causing her death. The declaration contained three counts, one of which was under Pub. Sts. c. 112, § 213. Trial in the Superior Court, before Dunbar, J., who reported the case for the determination of this court, in substance as follows.

<p>Bill in Equity for Specific Performance — Discretion of the Court — Breach of Conti-act — Performance or Ability and Willingness to perform.</p> <p>An application to a court of equity for a specific performance is addressed to its discretion, and the court in considering it will take into account all the circumstances.</p> <p>In order to entitle a plaintiff to a decree for specific performance to convey land, it must appear that he has performed, or been able and willing to perform, his part of the contract, and that the defendant has neglected or refused to perform his part of it. On a bill of equity for a specific performance, there being no default by the defendant or neglect or refusal to perform, a general offer in the bill to perform, the bill having been filed several months after the time for performance and tlie plaintiff not having offered to perform since the breach and shown his ability to perform, and the plaintiff’s request to the defendant to make a deed to a third person, coupled with an agreement to make a mortgage back, were held not to be offers of performance on the plaintiff’s part, even though the defendant may have been ready at the time to make a deed and take a mortgage back.</p>

<p>Tort, by the administratrix of the estate of Maria Burke, for causing her death. Trial in the Superior Court, before Sherman, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff’s intestate was struck by an engine attached to an express train upon the defendant’s railroad, on December 24, 1887, near the Riverside station, in Newton.</p> <p>The person employing the intestate as a domestic testified that she had been employed by her for six or eight months prior to the accident; that the intestate was about twenty-two years of age, and an exceptionally bright Irish girl; that on the night in question the intestate was sent to the station from the house, which was on the north side of the railroad track and about five to seven minutes’ walk from the station, at about twenty minutes past six o’clock, to carry two bundles to two ladies employed at the station, and to bring back a basket of provisions which was to be sent from Boston by train. On cross-examination the witness testified that the intestate was as fully possessed of the faculties of sight and hearing as ordinary people are; that she had been sent to the station before, but never in the night-time; and that the packages she carried were done up in yellow paper.</p> <p>The plaintiff produced a plan of the station and surroundings, by which it appeared that the defendant’s railroad was fenced across Charles Street; that there was an opening in the fence and a platform about eight feet and a half wide running across the tracks to the station platform in front of that opening; that the distance from the fence to the northerly rail of the northerly track was eighteen feet, the distance from the northerly end of the platform to the northerly rail was thirteen feet, and the distance from the station platform to the northerly rail was about thirty-two feet; that there was a step up to the platform inside the opening; that a person on Charles Street could not see the track when approaching the fence, except directly through the opening, which was eight feet and six inches wide; and that the fence was practically a tight board fence about six and a half feet in height, preventing a person from seeing in both directions along the line.</p> <p>It was admitted that there was no way by which the intestate could have reached the station except by crossing the tracks.</p> <p>William G. Bosworth, a police officer of Newton, testified that he had visited Riverside station at least daily for twelve years; and that one must go about eight feet from the fence before he could see clearly, or to the curve in the track, which was about three hundred feet to the east, and the telegraph poles on the left obstructed the view beyond them.</p> <p>Albert E. Barnes testified that on the night of December 24, 1887, he was in the employ of the defendant as an engineer, and ran the engine which was attached to the express train which left Boston at six o’clock; that the train was due at Riverside at nineteen minutes past six; that the train was a few minutes late, and probably reached Riverside about twenty-five minutes past six; and that the signals were all right, and, when rounding up at Riverside station, there was a train there for Newton Lower Falls. He further testified as follows: “ While rounding the station at Riverside, the first thing I saw was a lady’s dress up about that far (indicating about the knee) on the track that I was on ; that was as far as I could see anything up from the ground; the rest was obscured by steam or smoke, or whatever you might call it; you could not see anything except about that high. We were running at a rapid rate, and I shut the steam off with one .hand and grabbed the whistle rope with the other, but before I could make a noise with the whistle the lady was struck by the engine. The night was cold and frosty ; I could not remember whether there was a moon or not; I could not see the station at Riverside until I got up to it on account of the smoke and steam from the train going to Newton Lower Falls. I saw the woman the instant I struck her; she went up into the air, the pilot running like that [illustrating] slid her right up, and of course, going at the speed we were going, I was by instantly, and I could not tell whether she went back under the train or on the side of the train. When she rose in the air from the blow of the pilot, I saw her face; when I got so that I could see the whole of her, I saw her facing the engine then ; previous to that I could not tell you. At that time we were running on to forty miles an hour, I think; an engine and tender are from sixty to seventy feet long, from the back end of the tender to the extreme end of the pilot.”</p> <p>On cross-examination, he testified that he had run an engine on the defendant’s road for nineteen years and eleven months; that the two northerly tracks were express tracks, number one (the most northerly) the outward track, and number two, the inward track; that the other tracks were for the local or circuit trains to run on; that engineers of trains at that time did not whistle at the crossings or stations in Newton, but rang the bell; that he was ringing the bell that night when he struck the woman ; that the head-light was burning brightly, and had been all the way out; that he could not tell how far to the west of the crosswalk the intestate was when he first saw her, but it seemed to him as though she was a little bit west of the crosswalk; that he could not say positively that she was walking toward him on the track; that he noticed that she had bundles when the engine struck her, and they looked like yellow wrapping paper; that it looked to him, approaching her rapidly through the fog and steam, that she was apparently walking toward the train, but he could not say positively that she took a step; that he did not see that she had the yellow bundles before he reached for the throttle, for then all he saw was “ about that much of her face ” (indicating); and that he made a report of the accident, as was usual.</p> <p>The witness further testified that by the time the steam would work up from the engine and rise to the height of a person it would be three or four minutes; that the walking was slippery, and when he got near enough to see the woman she appeared to be looking a little down, from what little he did see of her just from a passing view; that he was running his train in the ordinary way, and omitted no precautions he could use after he saw the woman ; that he was running fast enough extra over the time card to make up the time between Boston and Framingham; and that he was late, and that was the usual thing to do.</p> <p>On re-direct examination the witness testified that from the time he saw the bottom of her dress until she was struck it was only the fraction of a second; that he could not see her feet, or tell whether they were in motion or standing still; that he was going from fifty-six to fifty-eight feet per second; and that he could not swear to any definite location where the woman was struck.</p> <p>At the request of the defendant, the judge ruled that there was no evidence to go to the jury; and directed them to return a verdict for the defendant.</p> <p>If the ruling was right, the verdict was to stand; otherwise, a new trial was to be ordered.</p>

Contract, against Thomas Rice and Ada C. Rice, his wife, upon a promissory note for $800, dated April 28, 1892, payable in three months after date to the order of George K. Paul and Company, under which name the plaintiff did business here, signed by the first named defendant, and indorsed by the other defendant. Trial in the Superior Court, without a jury, before Bond, J., who allowed a bill of exceptions, in substance as follows.

<p>Tort, for breaking and entering the plaintiff’s close in Na-tick, and removing therefrom large quantities of loam, sand, and gravel..</p> <p>At the trial in the Superior Court, before Thompson, J., without a jury, the plaintiff claimed title to the premises under the will of Collins Morse, deceased, the material clauses of which appear in the opinion. The plaintiff offered evidence tending to prove the value, as a commodity, of the materials taken by the defendants. The judge excluded the evidence offered j ruled that, under the provisions of the will, the plaintiff was a tenant for life, and that, as such, she was not entitled to recover the value of the materials taken by the defendants, as a commodity ; and found for the plaintiff in the sum of $100. The plaintiff alleged exceptions.</p> <p>The case was submitted on briefs to all the judges.</p>

<p>Equity Practice — Restriction in Deed—Stable — Statute — Superior Court — Jurisdiction.</p> <p>The findings of a jury, upon issues submitted to them in a suit in equity, not having been set aside, must be taken to be true; but the justice who hears the case upon the question of entering the final decree, may find, on the evidence before him, any other material facts not inconsistent with those findings.</p> <p>Upon an appeal from a final decree in a suit in equity, without any report of the evidence or facts found by the justice who ordered the decree, the only question of law is whether the decree is warranted by the frame of the bill, and is consistent with the findings of a jury to whom issues have been submitted.</p> <p>If the restriction in a deed expires before the entry of a decree in a suit in equity brought to enforce the restriction, so that no injunction to restrain the violation of the restriction can be ordered, damages may be assessed in the decree for any violation which is proved to have been committed while the restriction was in force.</p> <p>The Superior Court has no jurisdiction, under St. 1883, c. 223, to enforce the provisions of Pub. Sts. c. 102, § 39, empowering the Supreme Judicial Court to restrain by injunction the unauthorized erection, occupancy, or use of a stable.</p> <p>The St. 1890, c. 395, by which the Superior Court is given concurrent jurisdiction with that conferred upon the Supreme Judicial Court by Pub. Sts. c. 102, § 39, as amended by St. 1890, c. 230, to restrain by injunction the unauthorized occupancy or use of a stable, does not give to the Superior Court such jurisdiction of a case pending there at the time it took effect, but of which previously that court had no jurisdiction.</p>

<p>Constitutional Law — Statute —Voter.</p> <p>Article XX. of Amendments to the Constitution of the Commonwealth, providing that “ No person shall have the right to vote . . . who shall not be able to read the Constitution in the English language, and write his name,” is valid.</p> <p>Section 22 of St. 1892, c. 351, providing that registrars of voters shall require certain applicants for registration “to read at least three lines, other than the title, from an official edition of the Constitution, in sncli manner as to show that he is neither prompted nor reciting from memory,” and also “ to write his name in the register,” is constitutional.</p>

<p>Devise — Husband and Wife—Statute — Equity.</p> <p>A testatrix, by her will, which was made in 1870 and admitted to probate in 1872, devised the residue of her estate, real and personal, to her son and his wife, “ and to the survivor of them, and the heirs of such survivor, to have and to hold the same forever.” The testatrix died possessed, among other property, of certain shares of the stock of a bank. A certificate of the shares was issued by the bank to the husband and wife, “ and the survivor of them, and the heirs of such survivor,” and the certificate was left by the husband in the possession of the wife. In 1891, the husband undertook, by an instrument in writing, to sell the shares to a third person for a valuable consideration. The bank declined to make the transfer until the outstanding certificate was delivered up, which delivery the wife refused to make. The purchaser then brought a bill in equity to compel her to deliver the certificate to him. Held, that the Gen. Sts. c. 108, § 1, did not apply. Held, also, (Field, C. J., Knowlton and Morton, JJ., dissenting,) that the plaintiff was entitled to the dividends on the stock during the joint lives of the husband and wife, and to the shares in the contingency of the husband surviving his wife; and that, if the wife survived her husband, she was entitled to the shares absolutely.</p>

<p>Insolvency—Assets which pass to an Assignee—Preference — Conflict of Laws.</p> <p>When there are two insolvencies of the same person in different jurisdictions, the title of the assignee to the land of the debtor situated in one jurisdiction must be determined by the law of the place where the land is situated ; and where a mortgage of land in Maine was given by a Massachusettes debtor to a Massachusetts creditor to secure a pre-existing debt, within six months of insolvency proceedings in Massachusetts, which mortgage by the law of Maine was good as against the same assignee appointed under the law of Maine, it was held, that the mortgage could not be avoided by him as assignee in Massachusetts.</p>

<p>Qualified Fee — Alienability of Real Estate — Descent of Real Estate.</p> <p>A testator gave to his “ granddaughter, S., and her heirs on her father’s side,” one third part of all his estate, both real and personal. Held, that S. could convey in fee simple absolute the real estate thereby acquired.</p>

Bill in equity, filed October 13, 1892, praying that the defendant be restrained from using a wall put by him on the line dividing the estate of the plaintiffs from that of the defendant for any other purpose than that of resting timbers thereon, and that he be restrained from building windows therein. Hearing before Hammond, J., who entered a decree for the plaintiffs, and the defendant appealed to this court. The material facts appear in the opinion.

<p>Tobt for conversion. Trial in the Superior Court, before Sherman, J., who reported the case for the determination of this court, in substance as follows.</p> <p>On March 8,1889, the plaintiff borrowed of the defendant the sum of one hundred and sixty dollars, and as security therefor mortgaged to the defendant the personal property claimed in this action, by mortgage and note of that date, both of which were made and executed by the plaintiff and his wife, the provision of the mortgage being that the sum borrowed should be paid within three months from date, and that upon its payment the note should be void. On January 8, 1890, the plaintiff paid the note in full, with interest, and the agent for the defendant testified that at the time of payment the plaintiff said to the defendant’s agent, “ I do not know how long before I shall need this money again,” and that the defendant’s agent said in reply, “ Keep your papers and you can re-borrow what you desire at any time.” This statement was denied by the plaintiff. There was no discharge of the mortgage by the defendant, except such as might operate by the payment of the loan, and the mortgage and note were returned to the plaintiff, who retained them in his possession until March 12, 1890, when he applied to the defendant for another loan, and the defendant at his request went to the dwelling-place of the plaintiff, and, after viewing the property named in the mortgage, loaned the plaintiff the sum of one hundred and twenty-five dollars. No new papers were drawn, but the plaintiff returned to the defendant the old mortgage and note, and there was evidence tending to show that both the plaintiff and the defendant understood and agreed that all the rights, privileges, and powers contained in the mortgage should be revived for the purpose of securing the defendant for the loan then made.</p> <p>The plaintiff continued to pay interest on the second loan, the amount paid by him being according to the rate named in the original note, until January, 1891, when he neglected to make any further payment.</p> <p>On March 26, 1891, the plaintiff having neglected to pay interest as aforesaid, and the principal having been demanded by the defendant of the plaintiff, who neglected to pay the same, the property was taken by the defendant’s agents, against the plaintiff’s objection,, and sold at public auction, according to the terms of the mortgage, for the purpose of satisfying the defendant’s loan. There was evidence tending to show the value of the property.</p> <p>The judge submitted two questions to the jury: “1. Was there an agreement on March 12, 1890, between the parties, at the time of the delivery of the note and mortgage by the plaintiff to the defendant, that the mortgage should be taken and held as security for the sum of one hundred and twenty-five dollars ? 2. What was the value of the property taken by the defendant 1 ”</p> <p>The judge instructed the jury that if their answer to the first question should be “ Yes,” they should find their verdict for the defendant; otherwise, for the plaintiff.</p> <p>The jury answered “ Yes ” to the first question, and to the second, that the value of the property was two hundred fifty-nine j8q2q- dollars; and rendered a verdict for the defendant.</p> <p>If the instructions were correct, judgment was to be entered on the verdict; otherwise, the verdict was to be set aside and judgment entered for the plaintiff for the sum of two hundred fifty-nine dollars, with interest from the date of the writ.</p> <p>The case was submitted on briefs to all the judges.</p>

<p>Writ of Entry — Statute — Levy of an Execution by Sale of Land—Constable — Jurisdiction.</p> <p>The provisions of the Pub. Sts. c. 172, § 29, which require, where a levy of an execution is made by a sale, that “ the officer shall give notice in writing of the time and place of sale to the debtor, if found within his precinct, and shall also cause notifications thereof to be posted up in some public place in the city or town where the land lies, and also in two adjoining cities or towns, if there are so many in the county,” contemplate that the levy shall be made by some officer whose jurisdiction extends over the whole county; and a constable cannot make a levy of an execution by sale of land where he has no jurisdiction in the towns where the statute requires notifications to be posted up.</p>

<p>Libel—Town — Accepting and Printing Report of Committee — Action.</p> <p>A town is not liable to an action for an alleged libel contained in the report of a committee appointed by the town, which report is, at a regularly called meeting, accepted by the town and voted to be printed and circulated, which printing and circulation are subsequently done.</p>

<p>Deceit — False Representations — Statements of Facts—Opinion — Agency — Evidence for the Jury — Right of Officers to bind Corporation by Representation — Letters as Evidence.</p> <p>Thirteen actions for deceit were tried together, founded on alleged false representations of a title insurance and trust company, contained in a letter to A., prepared by its counsel and trust officer, and signed by the company by its president, who had the general supervision of its business, stating that the company had the original documents printed in the advertisements of A.’s bonds, secured by mortgage to the company as trustee upon the B. tract of land ; that it indorsed the estimates of value contained therein made by parties named, “ all of whom are Known as men of integrity and sound judgment touching local real estate value”; that the fact that the company considered the title good in A. appeared from its agreement to issue its policies of title insurance to the several holders of A.’s mortgage to a certain amount, “ fully protecting such holders against loss or damage arising from any defect in said title or prior encumbrance thereon ”; and that from its knowledge of the mortgaged property, and from the situation and prospects of the property, the company was of opinion that the mortgaged property was adequate security for the amount of the proposed loan. The mortgage was by A. to the company as trustee to secure the payment of bonds to a large amount designed to be sold for B., who had conveyed the land to A. for an expressed large consideration. The documents referred to in the letter were certificates giving estimates of the value of the property, signed by the parties named. There was evidence tending to show that the land was not worth more than from a twelfth to a fifth of the estimates, that A. was of no pecuniary responsibility, and that the making of the bond and mortgage was a scheme of B. and A. to defraud purchasers of the bonds. Each of the several plaintiffs bought some of the bonds, having first read the letter and the advertisement recommending the property and containing copies of the several certificates of value. There was evidence that the trust officer and president did not believe that B. and A. were acting otherwise than in good faith, or that the property was insufficient security, and there was evidence on which the plaintiffs relied to show that the trust officer and president must have believed that the land was of much less value than the amount of the bonds, and that the most important statements of the letter were untrue. The bonds purported to be first mortgage bonds, but there was a prior mortgage of §30,000 on the property, of which the company’s officers were aware. Held, that the company was not liable for representations in the letter purporting to be merely expressions of opinion, but that it was liable for the false representation in regard to the title, and for that only, to those of the plaintiffs to whom it was made, and who were induced by it to invest in the bonds.</p> <p>Thirteen actions of deceit were tried together, founded on alleged false representations of a title insurance and trust company contained in a letter intended to be used by A., to whom it was addressed, in selling bonds secured by mortgage of land of A. to the company as trustee. A. was expected to show the letter to those who might become purchasers, and to use it as an inducement to them to purchase. The evidence seemed to indicate that A. sold to but one of the plaintiffs, K., or perhaps to him and three others; but it appeared that the company issued its policy of title insurance to each purchaser upon being paid $1 for each policy after the first; that the plaintiffs received such policies; that It. submitted the letter and the printed circulars-to his customers, including all of the plaintiffs, who suggested that if the bonds could be made payable to order they would like some of them; and that A. reported that this could be done. It. testified that he paid for the bonds on delivery, and that his commission was taken out before payment. Held, that the representations were made to all persons to whom the letter was shown by A., as much as if it had been addressed to them by name; that It. was one of such persons; that the letter was not intended to be used by purchasers from A. to aid them in selling to others; that there was evidence for the jury in favor of all the plaintiffs as to whether they bought of A. through IC. as agent; that, if they did, the representations were made to them, but not if A., first sold to IC. and IC. sold on his own account to the other plaintiffs; and that there was evidence for the jury in favor of all the plaintiffs as to whether the false representations of the company induced them to buy.</p> <p>A corporation legitimately acting as the trustee for bondholders under a mortgage, and paid for the service, and whose business is also that of insuring titles to real estate for a consideration, may bind itself by a representation in regard to the title of the mortgaged property.</p> <p>The president and the trust officer of a title insurance and trust company, who have sole charge and management under the authority of the directors of the business relating to its acting as the trustee for bondholders under a mortgage, for which service the company is paid, may bind it by a representation in regard to the title of the mortgaged property.</p> <p>In an action for deceit founded on alleged false representations of a title insurance and trust company contained in a letter to A., which began, “ We have in our possession the original documents printed in the advertisement of your bonds secured by mortgage to this company as trustee upon the B. tract in this city,” the only representations declared on were contained in the letter and referred only to specific matters, and not to the advertisement generally. And the letter contained no representation in any way applicable to page 3 of the advertisement. Held, that that page was rightly excluded. Held, also, that a question of the defendant’s counsel to the witness A., after the exclusion of that page, which question referred only to a certain writing on the cover of the advertisement, and had no relation to anything contained on page 3, did not make that page competent.</p> <p>An action for deceit was brought on alleged false representations of a title insurance and trust company contained in a letter written by its president. A letter of the company written by the same officer five months afterwards did not necessarily relate to knowledge or opinions which the writer had when the first letter was signed, and had no reference to the matter of fact about which the actionable representation was made in the first letter, but only to the value of the security for the payment of bonds, which in that letter was referred to by way of estimate and opinion. Held, that the last letter was rightly excluded.</p>

Charge of fraud, filed under the Pub. Sts. c. 162, § 17. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows. The defendant applied to the Municipal Court of the City of Boston to take the oath for the relief of poor debtors, on which application an examination was had upon the issue whether he had property above twenty dollars which could be taken on execution.

<p>Contract to recover for the use of two patented machines, under a written instrument executed by the plaintiff and the defendants, by which the plaintiff “ leased ” to the defendants two machines made by the plaintiff for fastening buttons upon boots and shoes, at a certain “ rent,” to be paid by them for each month’s use thereof. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>Contract for Sale of Land — Memorandum — Statute of Frauds.</p> <p>A memorandum, dated and signed by B., recited as follows: “Received of A. one hundred dollars on account of sale of estate number 379 C. Avenue, for the sum of $14,140, subject to a mortgage of 8,000 dollars on 4J- per cent interest, and I agree to pay the 140 dollars as commission to J. Rents and insurance and interest to be adjusted to date. Title to be passed within ten days from date.” In an action by A. against B. upon the contract for the sale of the land, it appeared that the assumption of the mortgage of §8,000 was a part of the consideration, and went to make up the sum of $14,140 mentioned in the memorandum. Held, that, under the statute of frauds, Pub. Sts. c. 78, § 2, the memorandum was suffi- - cient to satisfy the requirements of § 1, cl. 4. Field, C. J. & Knowlton, J. dissenting.</p>

<p>Personal Injuries — Evidence — Negligence — Due Care.</p> <p>The plaintiff in an action for personal injuries lived in a house set back six or seven feet from the northerly side of a street in a city, which in building a sewer had dug a trench and piled the earth on that side of the street covering the sidewalk and trespassing on the land in front of the house so that the plaintiff was more or less walled in. The southerly sidewalk was open, and for about six weeks the plaintiff had walked over the mound of earth, crossed the trench by a plank, and pursued her way on the other side of the street, returning in a similar manner. On the evening of the accident, the pile having been reduced from nine or ten to four or five feet and the earth being soft, the plaintiff started to cross as usual, when, as she was passing the top, something gave way under her foot, and she fell and broke her ankle. There was no pathway through the mound, although the plaintiff’s sister had tried to get the superintendent to make one. Held, that the jury would be warranted in finding that the defendant did not do its whole duty, and that it should have been left to them to say whether the plaintiff’s conduct was a bar to her recovery.</p>

<p>Bill ie equity praying for an injunction to restrain the defendants, Joseph H. Cutter and Seth B. Benson, from continuing the erection of a building over the drain known as Ell Pond Brook; that they be ordered to remove so much of the same as had already be.en built from within the twelve feet, the width and line of the drain, and to restore the walls of the drain as they were before being interfered with by the defendants.</p> <p>The bill alleged that to protect the plaintiff from the waters of Ell Pond Brook, which runs through the plaintiff town and the city (formerly the town) of Malden, St. 1869, c. 878, was passed, the first section of which is as follows :</p> <p>“ The county commissioners of the county of Middlesex are hereby authorized and directed to take and lay out such land, watercourses, and water rights, dams, and other real estate, or interests, or easements, or rights therein, on or adjoining the streams or brooks running from Ell Pond in Melrose and Spot Pond in Stoneham to the tide-water in Malden, as they shall deem necessary for the purposes of proper drainage and the public health; and they are also authorized, for the same purposes, to control the damming up and ■ letting off the waters of said ponds. And they may change, widen, straighten, and deepen the channels of said brooks or streams, in such manner as they shall deem necessary for the purposes aforesaid.”</p> <p>That pursuant to said statute the commissioners laid out the brook as a drain by certain courses, certain portions twenty-five feet wide, certain other portions sixteen feet wide, and in the northerly portion of the town of Melrose twelve feet wide, and directed that the town maintain and keep in repair that portion within its limits; that the town had expended and was expending a large sum of money to maintain and keep open and in repair the drain for the width laid out by the commissioners, and was obliged from time to time to enter in and dig out the brook, and remove the growth and accumulations therein for its entire length within the limits of the town; that the defendant Cutter, under lease and authority of the defendant Benson, the owner of land abutting on the drain, was wrongfully building on and over the drain on the north side of Grove Street, and west of Main Street, a wooden frame building; and that in the process of construction they had caused to be thrown down into the drain stones placed for the embankment thereof, and by their acts were covering the drain and interfering with the maintenance of the same and with the flow of water therein.</p> <p>The defendant Benson in his answer admitted that the town had paid its proportion towards removing the dam and widening and excavating the drain, and made some expenditure in repairing the drain, but denied that it had ever dug out the brook for its entire length within the town. He denied that the county commissioners were authorized by the act to order the town to maintain and keep in repair those parts of the brook or drain within its limits. He admitted that he made a lease of a portion of the premises to Cutter, and that Cutter commenced to build a small wooden building on the premises, and that a corner of the building projected over the drain, but he denied that Cutter in the process of construction had caused to be thrown into the drain stones placed for the embankment thereof, or that he had by his act interfered with the maintenance of the drain or with the flow of water therein. He averred that the corner of the building covered only a small portion of the drain, and that it did not interfere with the flow of the water in the stream, or with entering the drain to remove the obstructions; that in obedience to the requirement of the town he had excavated the drain to the width of twelve feet through his premises, removed all obstructions which would interfere with the free flow of the water, and constructed on each side a faced stone wall, substantially built, for a considerable part of the distance being a cemented wall; that it was essential to any profitable use or enjoyment of his premises that he should have the privilege of covering the drain wholly or in part with buildings ; and that it would not in any way interfere with or obstruct the drain or prevent the keeping of the drain free from obstructions, but on the contrary would protect the drain from obstruction, prevent the growth of vegetation therein, as the flow of water was small during a large part of the year, and would be a benefit and. improvement to all the property in that vicinity as well as to the premises of the defendant. He denied that the town had any title to or interest in the premises, or any interest in the subject matter of complaint in the bill which entitled it to bring the bill, or that it was in any way entitled to interfere for the protection of any easement in the premises for the public use or benefit. He averred that the only right or title in the premises acquired by the action of the county commissioners pursuant to the statute was an easement for the purpose of drainage for the public benefit; and that neither he nor Cutter acting under the lease had in the erection of the building done any act which interfered in any way with the reasonable enjoyment of the easement by the public.</p> <p>The defendant Cutter in his answer denied that under the authority of the act the commissioners directed that the town maintain and keep in repair that portion of the drain within its limits. He admitted the erection of a comer of the building over the drain, but denied the throwing of stones into the drain, ■or interference with its maintenance and with the flow of water therein. He also denied that any rights, privileges, or easements of the town had been interfered with.</p> <p>Trial in the Superior Court, before Hammond, J., who dismissed the bill, and, at the request of the plaintiff, reported the facts and findings to this court in substance as follows.</p> <p>The county commissioners in 1871 ordered “that the dam at the upper privilege, or Dyer’s Mill privilege, be removed, and in such manner that the water standing above the said dam may pass away with as much facility as may comport with the safety of the lower privilege and the banks above, and that the brook and stream be permitted to flow without obstruction from Ell Pond in Melrose and Spot Pond in Stoneham to a point below the present (Dyer) dam and to the water basin or pond of the lower Bartlett privilege.” Agents appointed by the commissioners took down the dam, and the drains were widened, straightened and excavated at an expense of about seven thousand dollars. The towns of Malden and Melrose each paid about one half. The Ell Pond drain was located as follows: “ Beginning at the west line of the location of the Boston and Maine Railroad, near the southerly line of Wyoming Avenue; thence following the present location across Wyoming Avenue, the Boston and Maine Railroad, Berwick Street, and land of J. Worthen, to the north end of said Worthen’s building; thence commencing at a mark on the north end of said Worthen’s building, 18.92 feet from the northwest corner thereof; . . . thence north 13° west 30.65 feet to Ell Pond. The above described line is the centre line of said drain, and said drain is laid out twelve feet wide. . The stakes on each side of said drain are driven eight feet from said centre line, but the location is six feet from said centre line.” The commissioners determined that the cost of proceedings should be paid by the town of Melrose, that for the equalization of the burden of expense for the work performed as compared with the benefits received the town of Melrose should pay to the town of Malden two hundred dollars, and that the town of Malden was to keep in repair and maintain that part of the drain within the limits of that town, and the town of Melrose that part within the limits of Melrose.</p> <p>Annually since that time the town of Melrose has expended money in clearing out sand, muck, weeds, and débris lodged in the brook from such portions thereof as are within the limits of the town, in accordance with the order of the commissioners.</p> <p>The town voted, on March 7, 1891, “ that the selectmen be directed to cause and compel the removal of all obstructions and erections placed by any parties within the lines of Ell Pond Brook and drain as laid out by the county commissioners, and hereafter prevent the placing of any obstructions in said drain; to widen, where necessary to allow the free flow of the water, the culverts under the roadways; to clear out the said brook or drain, and protect its walls by stones where necessary; to request and secure by all proper means the removal of obstructions in said brook and drain within the city of Malden ; also to secure by all proper means the enlargement, if deemed necessary by them, of the culvert under the Boston and Maine Railroad, and of the brook and drain under any building or erection within the lines of the lay out by the county commissioners, and to do all things proper, legal, and requisite to allow the said brook to flow freely and carry off all the water coming therein, instituting if necessary any proper legal proceedings to secure and maintain the said brook and drain free and unobstructed, as laid out by the county commissioners.”</p> <p>Wherever the highways crossed these brooks culverts have been built covering the brooks, and in one highway, where the Spot Pond Brook runs within the located limits of the highway, the brook is covered for a space of about four hundred feet, with two manholes in it dividing the four hundred feet substantially so that there are openings into the brook about every hundred feet. The stream has been widened by the defendant Benson where it runs through his land, being several hundred feet, to the full width of twelve feet, and retaining walls have been built five or six feet high by him.</p> <p>The judge found that the retaining walls were built substantially of stone, part of which were cemented, and part not; that at other points where it passed under the highways the stream had been widened the full width of twelve feet by the town, but not throughout its whole length, it being generally about eight feet wide as left by the county commissioners; that the building which the respondents started to erect was a one-story plain wooden structure, to be used as a blacksmith shop, forty feet by twenty-five feet, resting diagonally over the stream; that the erection of the building at that place would not interfere appreciably with the flow of the stream, nor would it interfere appreciably with the clearing out of the stream; that at one time since 1869 there was an unusual flood of water, raising the stream to a height above its banks and over the highway near the place of this building; that at no other time had it so overflowed ; that since that flood the culvert had been somewhat widened below; that the stream from time to time was more or less obstructed by the accumulation of sand and rubbish, and had to be cleared each year; that the usual method of clearing out the brook was by taking out tfle débris and putting it on the bank ; that the respondents claimed that it would be an advantage to cover the stream entirely so as to keep rubbish from getting into the stream, and weeds from growing in it; that no special damage was shown to any inhabitant at the hearing, but one of the witnesses testified that when the stream overflowed the land it did some damage as a natural consequence of such overflow, and that if the brook was generally covered, preventing the town from getting at it to clear it out, it would be very difficult to clear it out, and would cause extra expense and damage to the town.</p>

<p>Devise and Legacy—Condition — Partition — Description of Premises in Petition.</p> <p>A., who died seised of a parcel of land known as the homestead lot, left a will, which, after mentioning various legacies to certain persons, provided as follows: “I give, bequeath, and devise all the remainder of my estate, both real and personal, wherever or however the same may be situated, to my brother B. and to my son C., (upon the condition that they pay all my debts, and the aforenamed legacies as above required,) to have and to hold, to them, their heirs and assigns forever.” B. and C. were named as executors of the will. B. declined to serve, and C. was appointed sole executor, and gave a bond and due • notice of his appointment. Subsequently C. conveyed his interest in the homestead lot to B. Upon a petition for partition of all the real estate of B., deceased, the Probate Court ordered commissioners to sell all such real estate, consisting of several parcels. At the hearing before a single justice of this court, upon appeal, it was admitted that the legacies mentioned in the will of A. had been paid, but it was in dispute whether or not all the debts had been paid; and it also appeared that such debts, if not paid, were barred by the statute of limitations. The justice was of opinion that the questions arising under the devise and offer of proof so affected the title to the homestead lot that no partition or sale ought to be made of that lot until the title should be settled; and modified the decree of the Probate Court by excluding from its operation the homestead lot. Held, that the devisees under the will of A. took an estate in fee simple, charged with the payment of the debts of the testator; and that the homestead lot was properly included by the Probate Court in the real estate of B.</p> <p>A petition, under the Pub. Sts. c. 178, §§ 48 %■ seq., for partition of all the real estate of a person whose estate is in course of settlement in the Probate Court, need not contain a description of the premises sought to be divided.</p>

<p>Money adoanced to Wife living apart from Husband — Equity — Subrogation.</p> <p>A., who had advanced money to B.’s wife while living apart from B., which money the wife had expended for necessaries, sought to he subrogated in equity to the rights of the persons furnishing the necessaries, and prayed that B. might be ordered to pay her (A.) the amount so advanced. Held, that the bill could not be maintained either on the ground of subrogation or of a general equity.</p>

<p>French Spoliation Claims — Award — Distribution of Money — Next of Kin — Will of the Original Suffer ei—Validity of Assignment.</p> <p>The different parts of the proviso to the U. S. St. of March 3,1891, § 4, (26 U. S. Sts. at Large, 862, 908,) relating to awards in payment of French spoliation claims, to the effect “that, in all cases where the original sufferers were adjudicated bankrupts, the awards shall be made on behalf of the next of kin instead of to assignees in bankruptcy, and the awards in the cases of individual claimants shall not be paid until the Court of Claims shall certify to the Secretary of the Treasury that the personal representatives on whose behalf the award is made represents [sic] the next of kin, and the courts wiiich granted the administrations respectively shall have certified thaf the legal representatives have given adequate security for the legal disbursement of the awards,” as well as the whole legislation on the subject, point to the conclusion that money appropriated by Congress under that statute is to be disposed of under the will of the original sufferer if he left one, and if not it is to pas's under the statute of distributions, and in either case is assets protected by the original probate bond of an administrator or an executor. Field, C. J. & Allen, J. dissenting.</p> <p>An assignment for a valuable consideration of all a person’s interest in claims known as “ French spoliation claims,” intended to include claims afterwards provided for by the U. S. St. of January 20,1885, § 1, (23 Sts. at Large, 283,) and for payment of which appropriations were made under the U. S. St. of March 3, 1891, § 4, (26 U. S. Sts. at Large, 862, 908,) is valid.</p>

<p>Bill in equity, filed January 20,1893, against Charles G. White and Ambrose A. Ranney, trustees under the will of Benjamin F. White, and Henry G. White, the beneficiary thereunder, to reach and apply the income of the latter in payment of an order and mortgage given by him to the plaintiff. Hearing before Holmes, J., who reported the case for the determination of the full court. The material facts appear in the opinion.</p>

<p>Election Act — Certiorari — Mandamus — Validity and Constitutionality of Provisions relating to Caucuses — Placing of Name of Candidate on Official Ballot.</p> <p>Petitions against the Ballot Law Commissioners for a writ of certiorari, and against the Secretary of the Commonwealth for a writ of mandamus, to compel the Secretary to put on the official ballot to be used at the next annual State election the name of the petitioner, as the candidate of a party for the office of Senator, whicli party did not cast three per cent of the entire vote cast for Governor at the preceding annual election, there not being twenty-five legal voters participating and voting in the caucuses which elected the delegates composing the convention that nominated the petitioner, will not lie.</p>

<p>Pauper — Settlement — Residence — “ Living on ” Estate.</p> <p>It seems, that, other conditions of Pub. Sts. c. 83, § 1, cl. 5, being satisfied, a residence in a town sufficient to impose the duty to pay personal taxes is sufficient to confer the rights of settlement.</p> <p>A man cannot be said, within the meaning of Pub. Sts. c. 83, § 1, cl. 4, to be “ living on ” an estate owned by him which he does not occupy, but which is exclusively occupied by another to whom lie has let it.</p>

<p>Loss of Life — Railroad — Collision at Grade Crossing — Negligence.</p> <p>In an action against a railroad company to recover damages for a loss of life by running over a traveller at a crossing, if the burden rests on the defendant under Pub. Sts. c. 112, §§ 163, 213, to prove that the deceased was guilty of gross or wilful negligence, such burden is not conclusively sustained merely by proving that the deceased was familiar with the place and attempted to pass the crossing without looking to see whether a train, was approaching, or attempted to pass in front of an approaching tram which he saw. Other circumstances or elements may be proper to be taken into consideration by the jury in determining the question.</p>

Tort, under the Pub. Sts. c. 102, § 93, to recover double the amount of damage sustained from the bite of a dog. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Tort, by the assignee in insolvency of the estate of Isaac N. Faulkner, for the conversion of certain personal property described in a mortgage given by Faulkner to the defendants. Trial in the Superior Court, without a jury, before Maynard, J., who reported the case for the determination of this court, in substance as follows.</p> <p>It appeared in evidence that Faulkner, between October 20, 1891, and May 19, 1892, executed four chattel mortgages covering substantially all his property, including his household effects. On May 19, 1892, Faulkner purchased of the defendants, and took a bill of sale therefor, “ the entire stock of goods and fixtures in the store on the corner of School and Summit Streets, in. West Springfield, and lot of ice,” according to an inventory to be annexed to the bill of sale, and also “one bay horse six years old, and one express wagon.” The bill of sale also contained a lease of the premises from the defendants to Faulkner for one year, at a rental of $25 per month. Faulkner paid no money to the defendants, but gave them a chattel mortgage to secure the payment of the purchase money ($1,363.63), “ in weekly instalments of twenty-five dollars each, beginning May 23, 1892, without interest, provided instalments are paid at maturity of each instalment,” covering all the property described in the bill of sale, and substantially all the property described in the other four mortgages, except his household effects. It also contained this clause: “ This mortgage is also to cover goods, wares, and merchandise which I may hereafter purchase and place in said store during the continuance of this mortgage. Permission is given to sell said stock of goods in the ordinary course of retail trade, provided the stock is kept fairly up to present inventory.” This mortgage and the bill of sale were executed at the same time, and bore the same date, May 19, 1892, and the mortgage was duly recorded. At the same time, as additional security for the payment of the purchase money, and as a part of the same transaction, Faulkner executed an assignment as follows: “ In consideration of one dollar and other valuable consideration to me paid by Crosier Brothers, of West Springfield, Mass., I hereby transfer and assign to said Crosier Brothers all my right, title, and interest in and to all accounts due me and pertaining to the meat business lately carried on by me, and also to any and all accounts which may hereafter become due me in my meat and grocery business as now carried on by me, with full power and authority to collect the same in my name, by suit or otherwise, until my indebtedness to said Crosier Brothers is fully paid.”</p> <p>After the payment of six weekly instalments ($150), Faulkner made default and ran away. On July 8, 1892, the defendants duly served a notice of their intention to foreclose their mortgage, under the provisions of the Pub. Sts. c. 192, §§ 7, 9, and the notice was recorded in the town clerk’s office of West Springfield on July 9, 1892. The defendants then took possession of the property described in their mortgage, (except such part of it as was claimed by the owners of the four prior mortgages,) and also of the books of account used by Faulkner in his business.</p> <p>On July 29, 1892, Faulkner was declared insolvent, and the plaintiff was duly appointed assignee of his estate.</p> <p>It was agreed that, after the date of the defendants’ mortgage, and before the notice of foreclosure, Faulkner purchased and added to his stock goods to the value of $75.</p> <p>The defendants testified that they did not examine the town clerk’s record of mortgages as to Faulkner’s property, either before or at the time of the sale to him by them, and they had no knowledge of any outstanding mortgages upon his property; and that at the time of the transaction he told them there were no mortgages on his property.</p> <p>Evidence was introduced upon which the judge found as facts, that Faulkner was insolvent on May 19,1892, being the day when the sale took place; that the mortgage and assignment were given by the mortgagor in the usual and ordinary course of his business ; that he had, at the time of giving the same, no intention of going into insolvency, or any purpose of violating any of the provisions of law relating to insolvency in giving the mortgage and assignment, but expected to continue in the prosecution of his business; that he gave the same for a present valuable consideration; and that the defendants, when they received the same, did not know or have reason to believe that the mortgagor was insolvent or in contemplation of insolvency, or that the same was made in violation of the insolvency laws.</p> <p>The plaintiff requested the judge to rule, among other things, as follows : “ 1. The mortgage and assignment were not in the usual and ordinary course of the business of the debtor, and they put the burden upon the defendants to show that Faulkner was not insolvent or in contemplation of insolvency at the time, and that the defendants had not grounds of belief of such insolvency. 2. If it appear that Faulkner was insolvent at the time the defendants took possession, and that the defendants then had reasonable grounds to believe him insolvent, the property acquired subsequent to the date of the mortgage can only be held by the defendants as a pledge could be held, if taken at the time in security for the debt, and the defendants were subject to any disability arising from the insolvency of Faulkner at the time of the taking possession.”</p> <p>The judge declined to rule as requested; and found for the defendants.</p>

<p>Broker’s Commission—Principal and Agent — Evidence of Authority.</p> <p>If A., acting as the authorized agent of B., makes a contract of sale of B.’s land to G., who pays to A. a part of the purchase money, and who for a long time afterwards is able, ready, and willing to take, the property and pay for it the price agreed, and is prevented from doing so by B.’s refusal to carry out the contract, A. is entitled to compensation from B. for making the sale, although C. could not have been compelled to carry out his contract, if he had chosen to set up the statute of frauds.</p> <p>In an action to recover a commission for selling the defendant’s land, the plaintiff’s uncontradicted testimony showed that, two or three years before the sale, the defendant, being informed that he was a real estate broker, told him to sell the property if he could at a price named, and the plaintiff thereupon made some effort to sell it; that afterward, nearly a year before the sale, the defendant wrote him a letter, giving $1,800 as the price of the property, and offering to pay him a certain sum if he would sell it; that, just before the sale, lie telegraphed to the defendant, asking if he would sell for $1,700, and received in reply a despatch, as follows: “No, eighteen is the least I will sell for”; and that thereupon he immediately made a contract of sale for $1,800, which the defendant refused to carry out. Held, that the jury were warranted in finding that the plaintiff was acting under the defendant’s authority in making the contract of sale, and that he was entitled to compensation.</p>

<p>Promissory Note—Gas Company—Statute—Corporation—Authority of Treasurer to sign Note — Defence.</p> <p>The St. of 1886, c. 346, relating to gas companies, does not affect the right of such a company to issue promissory notes.</p> <p>It is not necessary that the authority of an officer of a corporation to sign promissory notes in its behalf should appear in its by-laws, or should have been expressly given by a vote of its directors or stockholders.</p> <p>The treasurer of a gas light company has, by virtue of his office, authority to sign a promissory note which shall bind the corporation. Field, C. J. & Allen, J. dissenting.</p> <p>In an action upon a promissory note signed in the name of a corporation by its treasurer, the corporation cannot contend, in defence of the action, that the act of the treasurer, who, under color of an election to the office, had, without protest or opposition from any source, acted as such officer for a period of three months before making the note, was invalid, because the annual meeting at which he was chosen was not called in accordance with the by-laws.</p>

<p>Marine Insurance — Evidence — Statute.</p> <p>In an action upon a policy of insurance on a vessel against the perils of the seas, if the materiality of a certain representation is in issue, a witness who is the owner of another vessel cannot testify concerning the premium which he paid for insurance on his vessel at another time.</p> <p>The St. of 1887, c. 214, § 21, providing that “no oral or written misrepresentation made in the negotiation of a contract or policy of insurance, by the assured or in his behalf, shall be deemed material or defeat or avoid the policy or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increased the risk of loss,” applies to marine insurance companies.</p>

<p>Contract for the breach of an agreement in writing, executed by the defendant as the party of the first part, and by the plaintiff corporation by C. F. Jewett, President, as the party of the ‘second part, for the publication by the plaintiff of a work to be written by the defendant “in the nature of autobiography, or reminiscences of his life, and the acts and doings of other public men, so far as they may seem to him to elucidate the history of the country or public affairs ”; and containing the following clause: “ The party of the first part agrees to accept full responsibility of all matter contained in said work, and to defend at his own cost any suits which may be brought against the party of the second part for publishing any statements contained in said work, and to pay all costs and damages arising from said suits.”</p> <p>Trial in this court, before Holmes, J., who reported the case for the consideration of the full court, as follows:</p> <p>“ The said contract was duly made between the plaintiff and defendant, and was made without illegal intent, unless and except so far as the words used import one as matter of law. The first question which I report for the consideration of the full court is whether the contract is legal on its face.</p> <p>“ The plaintiff tabes its name from one C. F. Jewett, who, at the date of the contract, owned half its stock, and was its president and manager. The defendant was induced to execute the contract by Jewett, and Jewett was the only man he knew, or with whom he had any dealings..</p> <p>“ In May, 1890, Jewett fled from justice, having forged, over-issued, and pledged one and one half times the stock of- the plaintiff company, and these facts became known to the public. The defendant, when informed of them, declined to go on with the contract. At that time he felt, and expressed to the agents of the plaintiff, a doubt as to the plaintiff’s continued solvency, and this doubt was reasonable. It was very doubtful whether the plaintiff was not liable for the fraudulent over-issue of stock until the decision of this court in Hill v. C. F. Jewett Publishing Co. 154 Mass. 172, which may be referred to. On the other-hand, the defendant was informed and had reason to believe that the other members of the company, being members of the bookselling firm of Estes and Lauriat, as a voluntary act, could and would furnish the company sufficient money to enable it to publish the defendant’s book as agreed, and were willing to have their names, instead of that of the C. F. Jewett Publishing Company, upon the book; but, as it turned out, the C. F. Jewett Publishing Company would have been able to publish the book, the disgrace attaching to the name C. F. Jewett would not have affected sales appreciably outside of New England, and I am not satisfied that it would have affected them very greatly anywhere. The second question is whether the facts ábove stated disclose a legal justification for the defendant’s refusal to complete his contract.</p> <p>“ If the contract was valid, and the defendant was not justified in breaking it, judgment is to be entered for the plaintiff for $2,500, with interest from June 9, 1890.”</p> <p>The case was argued at the bar in March, 1893, and after-wards was submitted on the briefs to all the judges.</p>

<p>Contract — Usage—Validity of Custom — Exceptions.</p> <p>A usage cannot override an express contract, nor can a usage be valid which is in contravention of an established rule of law.</p> <p>A general custom of a port, that “ after a vessel arrives at the port and goes to a wharf designated by the consignee, and due notice has been given to the consignee, and the cargo is taken off and distributed upon the wharf according to the marks and numbers, the care of the goods devolves upon the consignee,” is valid.</p> <p>At the trial of an action to recover a balance of freight money alleged to be due, under a charter-party, upon a cargo of hemp, the defendant sought to withhold from such balance, by way of recoupment, the value of a certain quantity of hemp not received by him. The jury found that there was a general custom of the port of delivery, that “ after a vessel arrives at the port and goes to a wharf designated by the consignee, and due notice has been given to the consignee, and the cargo is taken off and distributed upon the wharf according to the marks and numbers, the care of the goods devolves upon the consignee.” There was evidence tending to show that, from the time the hemp touched the wharf, it was in the custody and control of the delivery clerk employed by the agents of the ship; that it was" his duty to make actual delivery of the hemp to the persons who came for it, and to take receipts from such persons for the hemp so delivered; and that no one had the right to take any of the hemp from the wharf after it had been placed thereon without his permission. It appeared that the bales of hemp, when they reached the wharf, were distributed in different piles in different places under a shed according to his direction; but it did not appear that the plaintiff, either through the delivery clerk or otherwise, undertook the duty of watching the hemp by night, or gave the defendant any assurance that he would exercise over it any supervision in addition to his legal obligations. The defendant contended, upon the argument of exceptions in this court, that the existence of the alleged custom could not affect the rights of the parties, because it appeared that the plaintiff did not act in reliance upon the custom. The exceptions did not show that this point was called to the attention of the judge at the trial, and no instruction as to the legal effect of the acts of the delivery clerk was requested, and no question relating to it was presented to the jury. Held, that the court could not say, upon the exceptions, that the plaintiff assumed to perform a part of the duty resting upon the defendant under such circumstances that he was bound to the exercise of due care in so performing it, and that the defendant relied upon such due care on the plaintiff’s part.</p>

<p>Savings Bank— Title to Deposit—Trust — Equity.</p> <p>Although the interest which a depositor in a savings bank has in the original deposit is not an interest in any particular fund, such a deposit, with the bankbook by which it is represented, may be conveyed in trust and become part of a trust estate.</p> <p>If, after notice by A. that a sum of money deposited in a savings bank by B. as trustee for C. belongs to a fund of which A. is trustee for C., the bank pays the money to B., a bill in equity may be maintained by A. against the bank to recover the sum so paid.</p>

<p>Personal Injuries—Railroad—Due Care—Negligence — Employers' Liability Act — Action.</p> <p>A person employed by a railroad corporation as one of a gang of workmen engaged in repairing a track, the nature of whose work requires him to bend over, with his back in one direction from which trains come, has a right to rely upon the fact that it was the duty of the foreman of the gang to warn him of the approach of a train; and if, by reason of the foreman’s neglect to give him such warning, he is struck by a train and injured, he may maintain an action against the corporation for his injury, under the employers’ liability act, St. 1887, c. 270, alleging that the foreman, being a person intrusted with and exercising superintendence, negligently failed to give warning of the approach of the train.</p>

Tort, by the administratrix of the estate of Patrick Lynch, who, while in the defendant’s employ, and engaged- in cleaning under a switch bar in the defendant’s yard at West Springfield, was struck by a shunted car, receiving injuries which caused his death. The declaration contained four counts, the first three being under the employers’ liability act (St. 1887, c. 270), and the fourth under Pub. Sts. c. 112, § 212.

<p>Guaranty — Construction of Contract.</p> <p>A., who did business as a commission merchant, was the selling agent of C. One B., a banker, discounted for third parties certain notes made by C., and held as collateral security certain goods manufactured by C. The notes not having been paid at maturity, B. drew on A. for the amount due on them. Before the drafts were honored, B. transferred to A. the goods which he so held as collateral security, and executed an instrument, which recited that B. agreed to reimburse A. for any loss “ arising from advances, disbursements, or charges ” made by A. to B., and "to take up certain notes ” made by C. “ and which were discounted by ” B.; that C. had placed with B. certain goods as collateral security for the notes, which collateral security had been transferred to A.; and that “ this guarantee is given to protect ” A. “ in case said collateral security should prove insufficient to reimburse ” A. “ as above.” A. then disposed of the goods and rendered an account of sales to B., and afterwards brought an action against B. for the balance alleged to be due him under the contract. Held, that A. in making up his account had a right to charge the usual commissions for making the sales, and interest on his advancements and disbursements.</p>

Indictment, for unlawfully exposing and keeping for sale intoxicating liquors at Leicester, on July 18, and on divers other days and times between that day and August 8,1892. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.

<p>Personal Injuries — Defective Highway — Burden of Proof—Liability of City.</p> <p>In an action against a city for personal injuries occasioned to the plaintiff by a defect in a highway, under Pub. Sts. c. 52, § 18, the burden of proof is on the plaintiff to show that the defect might have been remedied by reasonable care and diligence on the part of the city.</p> <p>In an action against a city for personal injuries occasioned to the plaintiff by a defect in a highway, the evidence showed that the alleged defect consisted of an accumulation of snow and ice on the sidewalk of a street; that the accident occurred on Wednesday afternoon; that on the previous Sunday snow had fallen about a foot in depth, and had turned to rain and sleet on Monday ; that the weather was clear and cold on Tuesday; that it snowed lightly during Wednesday; tiiat in the middle of the sidewalk a path had been formed, by treading down the snow, from one to two feet wide; that the snow and ice on the sides of the pathway were from six inches to a foot in depth; that there were holes in the pathway made by the feet of travellers; and that the plaintiff, in passing over the way, stumbled on the ice, which was covered with snow, and in trying to save herself caught her foot in a hole and fell down, receiving the injuries complained of. The plaintiff asked the judge to instruct the jury as follows : “ If you find that the accumulation of the ice and snow on either side of the pathway had assumed such shape as to force the plaintiff to walk in the pathway, or if it contributed in any way to the accident, then the character and shape of the snow and ice on either side of the pathway may be considered as a part of the defect complained of.” The judge read this request to the jury, and said: “I do not give you that instruction in precisely that form, but you are entitled to take into consideration the whole situation as the evidence finds it, and if she of her own voluntary motion selected the pathway, believing that was the line of safety, then the character of the i.ce and snow upon the side of that pathway are of no consequence whatever. But if, in passing over that sidewalk generally, she found, as she was passing over it, this accumulation of snow and ice upon either side of the pathway that was dangerous for travel, and in getting from that dangerous position she then stepped into the pathway which was a defective one, then you are entitled, of course, to take into consideration the fact that she was upon a dangerous pathway, upon either side of which there was a dangerous accumulation, and if she in getting out of that exercised due care and received an injury, then she would be entitled to recover.” Held, that the plaintiff had no ground of exception.</p>

Petition, under St. 1890, e. 127, by the administrators of the estate of Samuel Knight, for an abatement of a tax. The case was submitted to the Superior Court, and, after judgment for the respondent, to this court on appeal, upon agreed facts, in substance as follows.

<p>Contract — Patent — ‘1 Invention ’ ’ — Conception of Idea — Evasion of Patent — Equity.</p> <p>A., who had invented a cash-carrier system, for which and for certain improvements made thereon by him he liad obtained letters patent, organized, with two others, a corporation called the B. Company, for the purpose of engaging in the business of manufacturing, selling, and leasing cash-carriers under these patents, which, with all his property pertaining to the business, were transferred to it. Afterwards, a written agreement was entered into between C. of the first part, and A. and his associates of the second part, for the sale to and purchase by C. of all the stock and property of the B. Company, containing, among other representations, the following: “ That said company is the lawful owner of all the patents of the United States, and is entitled to all foreign patents for cash or parcel carrying or store service invented or issued to said ” A., “ and also of all his inventions and applications for any other cash or parcel carrying apparatus.” Some time after the making of this contract, A. obtained a patent for another cash-carrier, of which, at the date of the contract, he had only conceived vaguely three important and essential ideas, which, with others, were afterwards embraced in it, and which he had not reduced to practice; and the first apparatus embodying them was not completed until many months after the contract was made. A corporation known as the A. Company was formed for the purpose of taking an assignment of this patent and engaging in the manufacture of cash-carriers under it. Held, that C. could not maintain a bill in equity against A. and the A. Company for the transfer of this patent.</p> <p>The conception of an idea, except under some peculiar circumstances, does not constitute an invention, although there cannot be an invention without it.</p> <p>The mental conception by A. of an improvement upon an existing apparatus invented by him, unreduced to practice and unexpressed in any physical form or descriptive specification, and described orally by him to others so as to indicate but vaguely the manner in which he proposed to embody and apply it, does not constitute an “ invention ” within the meaning of a representation, in a contract for the sale by A. to B. of certain property, including patents, that A. is the lawful owner of all domestic patents and is entitled to all foreign patents for such apparatus, “and also of all his inventions and applications for any other" like apparatus.</p> <p>A conception does not constitute, under all circumstances, without anything more, an invention, because a skilled mechanic can reduce it to practice.</p> <p>A bill in equity cannot be maintained to restrain the manufacture and use of a patented invention, on the ground that it is an evasion of the plaintiff’s patent, if it is not an invasion of it.</p> <p>One who has sold an article does not impliedly agree that he will not compete with the purchaser in the sale of the same or similar articles, or will not produce or sell anything that may serve as- a substitute therefor.</p>

<p>Personal Injuries — Fellow Servant — Master and Servant — Contractor and Contraclee — Action.</p> <p>Although the servants of different contractors, while engaged in working together on a building, are in a common employment, they are not fellow servants unless they have a common master.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the employ of A., a carpenter, by the negligence of B., a mason in the employ of the defendant, it appeared that the accident happened while the plaintiff' and B. were working together in putting in a ventilator on the roof of a building which A. and the defendant were engaged in repairing, the work on the ventilator being extra work not covered by the contract for repairing the building. There was evidence that A/s men did' not know whether they were working on extra work or contract work; that they worked interchangeably on the work covered by the contract and the extra work; and there was no. evidence that the plaintiff knew that the ventilator was extra work. Held, that the jury would have been warranted in finding that the plaintiff did not cease to be a servant of A., and that he remained under his control or that of his. foreman while engaged in doing the extra work.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the employ of A., a carpenter, by the negligence of B., a mason in the employ of the defendant, it appeared that the accident happened while the plaintiff and B. were working together in putting in a ventilator on the roof of a building belonging to C., which A. and the defendant were engaged in repairing under contracts with C. There was evidence from the defendant himself that B. was not only employed by him, but was his sub-foreman at the time of the accident; that B. was under his exclusive control and responsible to him alone ; that he had an oral contract with C., by the terms of which he was to do all the mason-work on the building, charging C. the cost price of materials and labor, charging so many hours’ work for the men without stating who the men were, and a commission thereon ; that there was no extra work, all the work done by him being done under the agreement mentioned above; and there was nothing to show that B. was not.under his control at the time of the accident. He further testified that he took all his orders from C.’s architect, who made some changes from the original plans which were carried out by himself. Held, that there was evidence on which the plaintiff was entitled to go to the jury.</p> <p>If A. makes an oral contract with B., by the terms of which A. is to do all the mason-work on B.’s building, charging B. the cost price of materials and labor and a commission thereon, A. is an independent contractor, and not B.’s servant; and the fact that he takes all his orders from B.’s architect, who makes some changes from the original plans which are carried out by A., does not change the relation between A. and B., or make the servants of A. the servants of B.</p>

<p>Life Insurance — Equitable Interest— Trustee Process — Statute.</p> <p>An insurance company in 1861, in consideration of a premium of a certain sum paid to it by A., and of the annual premium of a like sum to be paid to it on or before a certain day in every year during the continuance of the policy, insured the life of A. in a certain amount, for the term of life, “ for the benefit of her husband.” The policy contained the following clause: “ And the said company do hereby promise and agree well and truly to pay or cause to be paid, at their office, the said sum insured to the above named party to whose benefit this insurance shall inure whenever the same becomes due, his executors, administrators, or assigns.” A. died in 1891, having paid all the premiums due upon the policy from her separate funds. The company never promised to pay the husband the sum due or to become due under the policy, unless such promise was contained in the policy itself, and had such sum in its possession. Held, that the husband would not be entitled to maintain an action at law against the company on the policy; that his interest therein was an equitable interest only, which could not be reached by trustee process; and that the Gen. Sts. c. 58, § 62, and the St. of 1887, c. 214, § 73, did not affect the case.</p>

<p>Contract — Survival of Obligation — Damages.</p> <p>B. agreed in writing with A. as follows: “ I hereby agree to enter into a formal contract with the H. Water Company when organized, binding myself to take at least seven hundred and fifty ($760) dollars’ worth of water per annum for the period of ten years.” A. accepted the offer, and furnished the consideration. Just afterwards, and before the water was ready for delivery, B. died, and his administrator refused to perform the contract. B. wanted the water to use in his business, which was the manufacture of woollens under a lease with the M. Mills, by the terms of which the mills had a right to terminate the lease within three months of B.’s death, and did so. A. knew the kind of business in which B..was engaged, and that it was carried on under some arrangement with the M. Mills, but did not know what the arrangement was. Held, that B.’s obligation to take the water for ten years survived to his administrator, who was liable upon the contract to A.; and that it was immaterial that the formal or second contract was to be made with another party. Held, also, that A. was entitled to recover the present value of each yearly payment, deducting such sums as the H. Water Company received or ought to have received for water used upon the premises, where it was understood by both parties that B. would take the water, although he had not bound himself to take it then.</p> <p>In an action upon an obligation to take a certain quantity of water at a stated sum annually for ten years, full damages were allowed to be recovered, although the ten years had not elapsed, no objection being taken by counsel.</p>

<p>Personal Injuries — Assumption of Risk—Exceptions.</p> <p>In an action for personal injuries occasioned to the plaintiff, while in the employ of the defendants as selectmen of a town, by the caving in of one of the sides of a trench in which he was engaged in laying pipes for a sewer, there was evidence that he was a man skilled and experienced in this business; that the caving in was caused by the trench being dug through a place where the earth had been washed away more than a year before and the place refilled; and that the plaintiff was ignorant of the fact that there had been a washout. There was also evidence that before the bank caved in it appeared to be shaky and cracked; and that the plaintiff’s attention was called to this, and he said he would look out, that he would keep his eye on it, “ and jump quick enough.” This was denied by the plaintiff in his testimony. On this branch of the case, the jury were instructed that, if the plaintiff knew the risk and voluntarily assumed it, he could not recover; that, if he did not know it, he might recover, if the jury were satisfied on the other parts of the case. At the close of the charge, the plaintiff requested the judge to instruct the jury as follows : “ Any extraordinary danger at the particular place where he was injured, the plaintiff, if he did not know and appreciate it, cannot he held to have assumed.” The judge refused to give this instruction. Held, that the plaintiff had no ground of exception.</p> <p>No exception lies to the refusal to give an instruction in the language requested, if it has been given in substance and in another form.</p>

<p>Contract for breach of an agreement, contained in a deed of land in Chicopee from the plaintiff to the defendant, as follows: “ As a part of the consideration of this deed, the grantee agrees to open and construct a public way to lead from Front Street southerly towards Prospect Street across her land and the land herein conveyed, and to prepare aiid keep the same open for travel until accepted by the city; and the westerly line of the strip herein conveyed shall be the centre of said street. It is herein understood that the said street shall be opened and constructed within thirty days from date of this deed.”</p> <p>Trial in the Superior Court, without a jury, before Maynard, J., who found for the plaintiff; and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Personal Injuries — Negligence — Master and Servant — Defective Appliance.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ, it appeared that he was directed to run a car loaded with stone down from the defendant’s quarry to where the car would be taken away by an engine on a certain railroad; that the track over which he was to pass descended gradually, so that the car moved by gravitation; that, after starting, the plaintiff found that he could not control the car with the brake; and that it ran away with him, ran into some other cars, and the plaintiff’s foot was crushed by the stone. The plaintiff’s evidence tended to show that the brake was defective. Held, that it could not be ruled that the plaintiff was negligent because he did not jump from the car as soon as he saw that there was trouble with the brake, or later, if it would have been prudent to do so, he testifying that his foot was caught so that he could not; or that he was negligent because he let the brake off a lit tie at the beginning, even if the car moved gradually before be did so, the defendant’s witnesses testifying that the car did not move until the brake was loosed.</p> <p>The fact that a car, which, when loaded with stone, is run upon a descending track from a quarry to a point where it is taken away by an engine on a railroad, is furnished by the railroad corporation, will not relieve the owner of the quarry from liability for personal injuries occasioned by a defect in the car to a workman employed by him to run it; and it is immaterial that he is obliged to take whatever car is furnished to him.</p>

<p>Loss of Life in another State — Railroad — Statute — Due Care — Conjectural Manner of Death — Action.</p> <p>In an action against a railroad corporation, under the Gen. Sts. of Conn, of 1888, §§ 1008,1009, (providing that “all actions for injury to the person, whether the same do or do not instantaneously or otherwise result in death, . . . shall survive to his executor or administrator,” and that “ in all actions by an executor or administrator for injuries resulting in death from negligence, such executor or administrator may recover from the party legally in fault for such injuries ” certain damages,) for causing the death, in Connecticut, of the plaintiff’s intestate, who was a brakeman in the employ of the corporation, and had his domicil in this Commonwealth, it is incumbent on the plaintiff to show that his intestate was in the exercise of due care at the time of the injury causing the death.</p> <p>An- action cannot be maintained against a railroad corporation for causing the death of a brakeman in its employ, who, after an accident in the night-time separating the rear portion of a train consisting of a box car and a caboose from the rest, goes forward, by direction of the conductor, with-a lantern from the caboose to investigate the trouble, and is last seen alive going down the ladder on the front end of the box car, and whose dead body is afterwards found lying on the railroad track, and the cause and manner of whose death are purely conjectural.</p>

<p>Attorney and Client — Inference of Authority to bring Suit — Action for Legal Services — Statute of Limitations.</p> <p>An action for services in bringing a suit is not barred by the statute of limitations if judgment was entered within six years.</p> <p>In an action brought in 1892 by an attorney at law for legal services in bringing a suit and in attending insolvency proceedings against the defendant in that suit, in order to prevent his defeating it by getting a discharge, the answer set up the statute of limitations. It appeared that the insolvency proceedings were finished in 1885; and that judgment in the suit was entered in 1888. The plaintiff contended that the services in the insolvency proceedings were only incidental to the suit, and were rendered under an entire contract covering both matters. He testified that, soon after he had brought the suit, the defendant in it went into insolvency, and he was consulted by the present defendant, and at his request did what he did in the insolvency proceedings; and that he did it with reference to the suit and as a part of it. He also testified that he was consulted by three other creditors; and that it was the understanding, from the time that he went to the creditors’ meeting, that the proceedings should be in the interest of all those four creditors. Held, that it could not be said that the judge was not warranted in finding that the plaintiff was entitled to recover the full amount of his claim.</p>

<p>Writ op entrt, to recover possession of a parcel of land in Great Barrington. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the demandants, to this court, on appeal, upon agreed facts, in substance as follows.</p> <p>The tenant claimed title to the demanded premises by virtue of a deed to him of the same from his grandfather, one Miles Avery, deceased, dated January 21, 1888, the consideration for which was expressed to be “ love and affection,” which was executed in the presence of a witness, and which was recorded on January 31,1893; and also under the second clause of the will of Miles Avery, which devised to the tenant, among other things, amy chest and its contents except the bank-books.”</p> <p>The deed was duly executed by Miles Avery at or about the time of its date, and is supposed to have been placed by him with other valuable property in a certain chest owned by him, which was the chest bequeathed to the tenant by the second clause of the will. The will, which was dated May 25, 1889, was duly proved and allowed, and the executor of the will, agreeably to its provisions, delivered the chest and its contents, including the deed, which was found in the chest, to the tenant, on Januarv 28, 1893.</p> <p>Miles Avery retained possession of the demanded premises, and of the chest and its contents, up to the time of his death, which occurred on May 10,1891.</p> <p>The demandants claimed title to the premises under the seventh clause of the will, which was as follows : “ All the residue and remainder of my estate, both real and personal, not otherwise disposed of, shall be equally divided among all of my grandchildren then living.”</p> <p>If the tenant had title to the demanded premises, judgment was to be entered in his favor; otherwise, judgment was to be entered for the demandants.</p>

<p>Negligent Repair of Highway — Private Damage — Action.</p> <p>An action cannot be maintained against a railroad corporation and a city for doing work, which they are autho1 ized by law to do, in altering and repairing a bridge and its approaches forming a part of a public highway, in such a negligent manner that the plaintiff is deprived of the use of the highway for an unreasonable time, and is thereby damaged in his business.</p>