Volume 160 — Massachusetts Reports

Contbact. The writ, issued front the Police Court of Holyoke, described the defendant as a corporation. At the trial in the Superior Court, on appeal, before Dewey, J., it appeared that no written pleadings were required in the Police Court of Holyoke except declarations, and such as the statutes make obligatory, and in this case the defendant filed no written answer of any kind in the police court.

<p>Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant, in consequence of which she was thrown from a carriage in which she was riding. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Intoxicating Liquors — Illegal Keeping for Sale — Evidence.</p> <p>At the trial of a complaint for unlawfully keeping for sale intoxicating liquors, with intent unlawfully to sell the same, it appeared that on October 2, the day named in the complaint, three cases' of lager beer were found by officers in a vacant tenement belonging to the defendant’s mother; that this tenement was connected by a frequently travelled path from two to three hundred yards long with a house inhabited by the defendant and his mother; that in the latter house were a saloon and bar, in which there was evidence that, on August 25, the defendant sold lager beer on demand; that on two occasions two or three omen under the influence of liquor were seen coming from the direction of this house; that the defendant two or three weeks before October 2 was seen walking on the path toward the tenement where the lager beer was found; and that no traces of liquor were found in the saloon. Held., that there was some evidence for the consideration of the jury.</p> <p>At the trial of a complaint for unlawfully keeping for sale intoxicating liquors, with intent unlawfully to sell the same, it appeared that on October 2, the day named in the complaint, three cases of lager beer were found by officers in a vacant tenement belonging to the defendant’s mother; that this tenement was connected, by a frequently travelled path from two to three hundred yards long, with a house inhabited by the defendant and his mother; and that in the latter house were a saloon and bar, in which there was evidence from only one witness, A., who was discredited, that on August 25 the defendant sold lager beer on demand. The defendant asked for a ruling that, if there was not a sale to A. as testified to by him, there was not sufficient evidence that the defendant kept the beer in question with intent to sell it contrary to law. The judge instructed the jury, that, if they should find that there was a sale on August 25, as testified to by A., that was competent evidence that on October 2 the defendant was in control of the premises and kept the liquors to be sold contrary to law. Held, that the defendant had no ground of exception.</p>

<p>Intoxicating Liquors — Illegal Keeping for Sale — Evidence.</p> <p>At the trial of a complaint for unlawfully keeping for sale intoxicating liquors with intent unlawfully to sell the same, it appeared that on a search for liquors in the defendant’s premises two soda glasses wet with whiskey and a bottle partly filled with whiskey were found on a table, and, in the same room, a jug filled with whiskey in a barrel partly filled with sawdust; and that on the floor in another room were a dozen empty whiskey bottles and fifty or more corks, while in the cellar under the defendant’s store were three kegs containing liquors. The government put in evidence the defendant’s statement, in reply to a question, that the bottle containing whiskey found with the glasses was his, and that he had it for his own use. The defendant then sought to introduce in evidence his statement, made immediately afterward while in the same room, in regard to the jug found in the barrel; and it appearing that, in the next room, a question was asked him in regard to the corks, to which he answered that they must have worked through the door from the adjoining drug store, he sought to introduce his answer to questions put to him immediately before in regard to the bottles found on the floor. Each of these declarations was excluded by the judge, on the ground that it did not appear to be a part of the same conversation with the answers introduced by the government. Held, that it could not be said that the evidence offered was wrongly excluded.</p>

<p>Intoxicating Liquors — Illegal Keeping for Sale — Agency.</p> <p>At the trial of a complaint for unlawfully keeping for sale intoxicating liquors with intent unlawfully to sell the samé, it appeared that the building in question was occupied by the defendant in part as a hotel and in part as a drug store, the latter being on the first floor, and the former on the floors above; and that a door opened from the store into a hall in which were stairs leading up to the next floor. There was evidence showing the presence of liquors in the store; that, upon the appearance of officers to search the premises, a signal was given by the hotel clerk; that they found in one room of the hotel a man who had been in the defendant's employ, and another man standing at a table holding a bottle containing whiskey in one hand, and a tumbler with a coin, either a quarter or half dollar, in the other hand; that they also found another bottle containing whiskey in a closet in this room; and that they further found in an adjoining room three bottles which had contained whiskey, and several glasses smelling of whiskey, and also empty lager beer bottles and cases in other places in the hotel. Held, that the judge rightly refused to rule that there was no evidence to warrant a finding that the whiskey found in the room in question was kept there for sale by the defendant.</p> <p>At the trial of a complaint for unlawfully keeping for sale intoxicating liquors with intent unlawfully to sell the same, the defendant is not entitled to ask for a specific instruction that there is no evidence that a person was the agent of the defendant to sell or keep for sale liquors found in a certain room upon his premises where such person was present, but it is a question for the jury, upon all the evidence in the case, whether the fact of such agency is proved.</p>

Tort, by the administrator of the estate of Harry L. Grant, for causing his death. Trial in the Superior Court, before Braley, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

Contract, against the administrator of the estate of Polly Crosby, upon a promissory note for $2,500, payable to the plaintiff, and signed “ P. Crosby.” The answer, among other defences, denied the genuineness of the signature to the note. Trial in the Superior Court, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.

<p>Contract, upon an account annexed, to recover $1,450, for services rendered by the plaintiff, as an organist, to the defendant, as pastor of a Roman Catholic church, from January 1, 1883, to May 23, 1889. Answer : 1. A general denial. 2. Payment. 3. Accord and satisfaction. 4. That the plaintiff . agreed with the defendant to render the alleged services without compensation. 5. That the plaintiff directed the defendant to apply to the purposes of the church all sums of money due her for such services. 6. The statute of limitations. Writ dated October 22, 1889. Trial in the Superior Court, before Braley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff put in evidence the report of an auditor, who found that the defendant, the pastor of St. John’s Roman Catholic Church in Clinton, from a date prior to 1882 to May 23, 1889, employed the plaintiff as organist at the church, at a salary of $400 per year; that this salary had been paid to her until May 23, 1889, when she was discharged; that the plaintiff’s claim in this action was for extra services performed by her as organist, from January 1, 1883, to the date of such discharge, at masses for funerals and memorials for the dead, at the rate of two dollars for each service ; that all items of the account prior to October 22, 1883, were barred by the statute of limitations; and further found as follows :</p> <p>“ I find that on June 15,1884, the defendant had paid the plaintiff all there was then due to that date, for both funeral and memorial services, and that she then directed him to retain all her moneys which he might collect for her future services at requiem masses for funerals and monthly memorials of the dead, and apply the same in the construction and decoration of the new church edifice, and that the defendant thereafter received for said services $502, which he expended upon a memorial window, and that this amount so received, as admitted by the defendant in his testimony, being more than otherwise proved in the case for both said funeral and memorial services, would be the sum, to wit, $502, due her from the defendant had he not properly applied the same, by her request and direction, in the decoration of said church. But I find that the defendant did properly expend said sum of $502, as so directed and authorized by the plaintiff. I accordingly find that the plaintiff is not entitled to recover anything of the defendant.”</p> <p>It was agreed at the trial, that, if the plaintiff was entitled to recover anything, she was entitled to recover the above named sum of $502. The plaintiff testified, in substance, that she made an arrangement with the defendant as to the special services sued for, by which he was to pay her two dollars for each service from money collected from the people who had the religious services performed; and that she never authorized him to apply the money so collected as a gift to the church, or for the use of the church. The defendant testified, in substance, that he paid the plaintiff for her services, from money collected from the people who asked for the services, until September, 1884, when, upon his offer to pay her, she refused to take the money, and said that she would accept no compensation beyond her salary for such services; that later he again offered her money for another service, and she again refused to accept it, and said that she presented it to the church and intended to do so as long as she was organist; that he accepted it, and after-wards applied all the money so donated by her to payment for one of the windows of the church; that she never afterwards asked him for any money for these services, or asked him how he was applying the money, or made any inquiry concerning it; that, after her discharge, she demanded the money for the services ; and that he told her that he owed her nothing, and that she had given all of it to the church. Several other witnesses testified that the plaintiff told them that she had given the money otherwise coming to her to the defendant for the use of the church.</p> <p>At the close of the evidence, the defendant asked the judge to instruct the jury, among other things, as follows :</p> <p>“ 3'. If the jury find that the special services referred to were rendered, to be paid for by the persons procuring such services, and that the defendant was to collect such payments and to give to the plaintiff a certain portion of the sums when so collected, then the plaintiff cannot recover against the defendant in this action on the pleadings. 4. If the jury find that any sum of money on account of the special services performed by the plaintiff were deposited or left by her with the defendant, to be applied by him for any purpose, the plaintiff cannot recover in this action on the pleadings. 5. If the jury find that the plaintiff instructed the defendant to retain the sums of money collected by him from the persons procuring the special services referred to in the evidence, and to apply such sums of money to a specific purpose, the defendant is not accountable to the plaintiff for the disposition of such sums of money in this action on the pleadings. 6. If the jury find that the plaintiff stated to the defendant that she should not receive or accept any sums of money to be collected for the special services referred to, and directed that such sums of money should be applied to the purposes of the church, then the plaintiff cannot recover in this action on the pleadings.”</p> <p>The judge declined to give the instructions requested, and, among other things, instructed the jury as follows:</p> <p>“ If you find, taking all the evidence in the case, that the defendant asked this plaintiff to perform these services, and said so to her at the time, or subsequently, either by language or by his conduct, there was an arrangement or agreement made between them that she should render these services, and she should receive the sum of two dollars for each, then I instruct you, as matter of law, that is evidence sufficient to find there was a contract made and entered into between them. If, however, you are left in doubt, or the plaintiff has not so satisfied you, then you will return a verdict for the defendant, and you have no occasion further to consider the case; but if she has satisfied you that this contract was entered into between them, then you come to the consideration of the next issue in the case, and that is, whether five hundred and two dollars, which it is admitted she is entitled to recover, has been paid. Here the defendant says, if at any time I did owe you any sum of money whatever for the services, I have paid that sum of money, because, under your direction and at your request, instead of turning it over to you, I have paid it to the church for general or for specific work, and therefore, that payment having been made at your request, it is equivalent to having made it to you, and I owe you nothing. The parties are at issue as to whether this took place. You will recur to the evidence, and bear in mind what the plaintiff has to say, and what the defendant has to say, and also the witnesses that have been called. . . .</p> <p>“ You are to pass upon all the evidence, and I instruct you the burden of proof is upon the defendant to make out this defence. If he has satisfied you, by a fair preponderance of the evidence, that in 1884, or at any subsequent time, the money which was accruing and coming to this plaintiff for services performed in relation to these ceremonies was to be turned over by him for the purpose of general work, or charitable work, or for these memorial windows, then in that case he has paid the plaintiff, and the plaintiff cannot recover; but if he has failed to satisfy you by a fair preponderance of the evidence, or left it in doubt, then the defence is not made out, and she can recover.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Petition, under Pub. Sts. c. 155, § 23, for costs. The case was submitted to the Superior Court, and, after judgment for the petitioner, to this court, on appeal, upon agreed facts, in substance as follows.

Contract, by the assignee in insolvency of the Florence Tack Company, upon an account annexed, and for money had and received. The defendant filed a declaration in set-off for the amount of certain promissory notes made by the Florence Tack Company, and held by the defendant. Trial in the Superior Court, without a jury, before Aldrich, J., who allowed a bill of exceptions, in substance as follows.

Contract, upon an account annexed, for twenty dollars. The case was submitted to the Superior Court, and, after judgment for the plaintiff in the sum of ten dollars and costs, to this court, on appeal, upon agreed facts, in substance as follows. The plaintiff’s claim was for wages earned in the defendant’s employ in June, 1892, previously to the time of demand and suit brought. The writ was dated June 30, 1892, returnable to the Police Court of Holyoke on July 11, 1892.

<p>Trespass — Assault and Battery — Action — Damages.</p> <p>One who enters the outer door and hall of a house, by permission of the occupant, to deliver milk, does not become a trespasser by entering the latter’s sleeping-room, against his previous commands, for the purpose of presenting a bill to him.</p> <p>An action for an assault and battery may be maintained against a person who, having entered the outer door and hall of a house by permission of the occupant, to deliver milk, enters his sleeping-room, against his previous commands, and takes hold of his arm and shoulders, using sufficient force to awaken him, for the purpose of presenting a bill to him; and the damages to be assessed are not necessarily nominal.</p>

<p>Equity Jurisdiction — Bill by Taxpayers— City— Contract.</p> <p>A bill by taxpayers of a city cannot be maintained, under the general equity jurisdiction of the court, to restrain the city from carrying out an alleged invalid contract.</p>

<p>Tort. The declaration, as amended, was as follows:</p> <p>“ And the plaintiff further says, that on the twenty-fifth day of March, a. d. 1891, at Worcester, the plaintiff’s intestate, being in the employment of the defendant railroad, was engaged in the line of his duty in the freight yard of the defendant railroad as a freight hand in making up a freight train, and that he had stepped in to couple two slowly moving cars to the nearer of two or more stationary cars, and that by reason of the gross negligence of a person in charge of the gang of switchmen in the service of said railroad, intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, certain other cars were negligently and carelessly moved against the said stationary cars, with such force as to cause them to strike the said plaintiff’s intestate, knock him off his feet, and throw him down in front of the moving cars, by which he was run over and severely injured; that as a result of such injuries said intestate languished and languishing died, without however consciously suffering. That due notice of said accident and death was given said defendant; that said plaintiff’s intestate, an employee as aforesaid, being in the exercise of due care, was as aforesaid killed under such circumstances as would have entitled the deceased to have maintained an action for damages against such defendant corporation if death had not resulted. That said intestate was an unmarried man, and his next of kin, in whose behalf this suit is brought, were not at the time of the death dependent upon said intestate’s wages for their support. Whereupon a cause of action has accrued to the plaintiff under the statutes for the benefit of the next of kin of the said intestate named in said writ.</p> <p>“ And the plaintiff further says, that on the twenty-fifth day of March, A. D. 1891, at Worcester aforesaid, the plaintiff’s intestate, being in the employment of the defendant railroad, was engaged in the line of his duty in the freight yard of the defendant railroad as a freight hand in making up a freight train, and that he had stepped in to couple two slowly moving cars to the nearer of the two more stationary cars, and that by reason of the gross negligence of a person in the service of the defendant corporation, who had the charge and control of the signals, switches, locomotive engines or trains upon said railroad, certain other cars were negligently and carelessly moved against the said stationary cars, with such force as to cause them to strike the plaintiff’s intestate, and knock him down in front of .the moving cars, by which he was run over and severely injured; that, as a result of such injuries, said intestate languished and languishing died, without however consciously suffering. That due notice of said accident and death was given said defendant; that said plaintiff’s intestate, an employee as aforesaid, being in the exercise of due care, was as aforesaid killed under such circumstances as would have entitled the deceased to have maintained an action for damages against such defendant corporation, if death had not resulted. That said intestate was an unmarried man, and his next of kin, in whose behalf this suit was brought, were not, at the time of the death, dependent upon said intestate’s wages for their support. Whereupon a cause of action has accrued to the plaintiff under the statutes for the benefit of the next of kin of the said intestate named in said writ.”</p> <p>The> defendant demurred to the amended declaration, and assigned the following grounds of demurrer:</p> <p>“ 1. In the declaration, as amended, the cause of action now appears to be for the death of an employee, but not for conscious suffering, and for that cause of action the plaintiff as administrator cannot maintain this action under the employers’ liability act. 2. The next of kin cannot maintain the action under the employers’ liability act, because they do not appear to be dependent upon the wages of the plaintiff’s intestate for support. 3. The action cannot be maintained under either count, under the Pub. Sts. c. 112, § 212, as amended by the St. of 1883, c. 243, for that it appears that the accident and injury occurred through the negligence of a fellow servant. 4. The action cannot be maintained by the combined provisions of the employers’ liability act and the Pub. Sts. c. 112, § 212, as amended by the St. of 1883. 5. The action is not maintainable under the provisions of either statute, and the two causes of action are improperly joined in both counts in said declaration.”</p> <p>In the Superior Court the demurrer was sustained; and the plaintiff appealed to this court.</p>

<p>Personal Injuries — Child — Negligence of Parent — Action.</p> <p>Although a mother may have been negligent in allowing her young child to be unattended upon a public street, it does not necessarily follow that no recovery of damages can be had against one who negligently runs over it. Such recovery may be had if the child, while upon the street, has done nothing which would be deemed dangerous or lacking in due care, provided its movements had been directed by an adult person of reasonable prudence in charge of it.</p> <p>Where the driver of a quiet horse stops in a narrow street for the purpose of conversation, and the horse is standing still without showing any signs of restiveness or impatience, and is under control, it is not necessarily careless for a young child to run or to be sent across the street in front of the horse.</p>

Tort, against William B. Shattuck and Elizabeth C. Shat-tuck, his wife, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendants and of their servant.

<p>Mechanic's Lien — Mortgage — " Consent ” of Owner of Land— Estoppel.</p> <p>A. furnished labor in erecting a building under a contract with B., who at that time was in possession of the land under a contract to purchase it. 0., the owner of the land, knew that the labor was being furnished. While the work ■was in progress, B. received a conveyance, and, as a part of the same transaction, gave a mortgage to D., who, at the time when lie took the mortgage, knew that the labor had not been paid for. Held, that A. could maintain a mechanic’s lien only for the labor furnished after the date of the conveyance to B.; and that it was subject to the mortgage to D.</p> <p>The facts that the owner of land, upon which a building was being erected by A. under a contract with B., who was in possession of the land under a contract to purchase it, knew that the labor was being furnished, and that lie spoke with B. about furnishing a frame for the house, do not import “consent” on his part in such sense as to satisfy the Pub. Sts. c. 191, § 1.</p> <p>That B., who was in possession of land under a contract to purchase it, and subsequently received a conveyance of it, said that he was the owner of the land upon- which A. furnished labor in erecting a building, and that A. dealt with him believing that he was the owner, do not entitle A. to maintain a mechanic’s lien against B. for the labor performed before the conveyance, on the ground of estoppel.</p>

Bill ir equity, filed in the Superior Court on January 14, 1892, against Moses G-. Crane and Frederick W. Cole, to enjoin the violation of a contract between the plaintiff and Crane, the material provisions of which, together with the facts, appear in the opinion. The case was argued at the bar in January, 1893, and after-wards was submitted on the briefs to all the judges.

<p>Promissory Note — Parol Evidence — Agreement between original Promisor and ordinary Indorser.</p> <p>If the liability of A., who signed a promissory note on the back, is that of an original promisor, and the liability of B., who signed after A., is that of an ordinary indorser, an action by A. against B. cannot be maintained in the absence of an agreement between A. and B. that B. should assume any different liability from that which would result from his signing.</p>

<p>Statute — Informations in Equity — Mandamus — Commerce between the States — Constitutional Law — Obligation of Contracts — Delegation of Legislative Power— Compensation in Case of taking Property for a Public Use. ■</p> <p>It concerns the public, or an indefinite portion of the public, whether railroad corporations not exempted by the railroad commissioners from the provisions of St, 1892, c. 389, shall obey the statute, and therefore the Attorney General, as representing the public, may bring a petition in behalf of the Commonwealth for a writ of mandamus.</p> <p>It is not a sufficient objection to St. 1892, c. 389, that it may incidentally affect commerce between the States, if it does not attempt to regulate such commerce.</p> <p>The constitutionality of St. 1892, c. 389, requiring railroads to provide mileage tickets good upon all railroads in the Commonwealth, cannot depend upon the solvency or insolvency of any particular railroad company at any particular time.</p> <p>When a railroad voluntarily unites with other railroads, and there are special provisions concerning tolls in some of the charters, and none in others, and the union is effected under a statute which provides that the corporation thus formed shall be subject to all general laws then or thereafter in force relating to railroad corporations, whether these special provisions continue in force and are applicable to the consolidated corporation, quaere.</p> <p>The St. 1892, c. 389, requiring railroads to provide mileage tickets good upon all railroads in the Commonwealth, is not in violation of Art. I., § 10, of the Constitution of the United States providing that “no State shall . . . make anything but gold and silver coin a tender in payment of debts.”</p> <p>The St. 1892, c. 389, requiring railroads to provide mileage tickets good upon all railroads in the Commonwealth, and authorizing the railroad commissioners to exempt or exclude any railroad therefrom “ if in their judgment the public welfare or the financial condition of the road require or demand it,” is not unconstitutional on the ground that it contains a delegation of legislative power to the board of railroad commissioners.</p> <p>When property is taken for a public use and is consumed in the use, the provision for adequate compensation ought to be more than a mere right of action against a private person or corporation with the risk of never obtaining satisfaction, and the compensation when made must be made in money.</p> <p>A statute which authorizes one railroad to determine the conditions on which another railroad must carry passengers, and compels one railroad to carry passengers on the credit of another, is unconstitutional. By Field, C. J., Allen & Morton, ,TJ. Holmes & Knowlton, JJ. dissenting.</p> <p>If it be assumed that, under the power to regulate the fares of common carriers of passengers, the Legislature can require the passengers to be carried before the fares have been actually paid in money, the security for the ultimate payment of the fares in money ought to be as certain as that required when private property is taken for public uses, and a statute which does not provide adequate security is unconstitutional. Holmes & Knowlton, JJ. dissenting on this construction of the statute.</p> <p>Without denying the power of the Legislature to determine the form of the contracts which common carriers of persons or merchandise must make concerning transportation, and without considering the authority of the Legislature to delegate this power to a board of public officers, it was held by Field, C. J., Allen & Morton, JJ., that this power cannot be delegated to private persons or corporations. Holmes & Knowlton, JJ. dissenting on this construction of the statute.</p> <p>The St. 1892, c. 389, required every railroad corporation in the Commonwealth to have on sale certain tickets which should be received for fare on all railroad lines in the Commonwealth, as well and under like conditions as upon the line or lines of the corporation issuing the same, and they were to be redeemed by each corporation issuing them upon presentation by any other corporation. The railroad commissioners were authorized in their discretion, on petition, to exclude any railroad from the provisions of the act. Held, by Field, C. J., Allen & Morton, JJ., that the statute required a railroad company to transport passengers and receive therefor tickets which merely gave separate causes of action against another railroad company, and provided no security that they would be redeemed in money by the railroad issuing them when presented for redemption although they might be used for transportation long after they were issued; that the company issuing tickets might impose upon other railroads duties in the carriage of passengers different from those it assumed towards passengers who purchased tickets of itself, and the tickets might be used indiscriminately upon all railroads within the Commonwealth not excluded from the statute, and were not confined to railroads engaged in transporting passengers in connection with the company issuing the tickets; that the railroad commissioners might exercise their power of exclusion in season to prevent loss from a failure of the company to redeem the tickets issued, or they might not; that the rights of railroad companies, ultimately to receive in money the fares of passengers ought not to depend upon the discretion of the railroad commissioners, and if the statute would be invalid but for this discretion, this provision would not make it valid ; and that the statute was void. Lathrop & Barker, JJ. agreed that the informations were rightly brought by the Attorney General, that the court had jurisdiction, and that tile necessary effect of the statute was to apply and appropriate individual property to the public use without the owner’s consent, and without legal provision for reasonable compensation; and that the statute was void. Holmes & ICnowlton, JJ. dissenting.</p>

<p>The first case was a petition by inhabitants, taxpayers and voters of the town of Beverly, for a writ of mandamus to command the Secretary of the Commonwealth not to attest or deliver to the clerk of said town, or to any other person or persons, a copy of the provisions of the articles of city government in the form consented to by a vote of a majority of the inhabitants of the town present and voting at a meeting called for the purpose in response to the propositions provided in St. 1892, c. 377, § 1.</p> <p>The second case was a petition by inhabitants, taxpayers and voters of the town of Beverly, against the Secretary of the Commonwealth and the inhabitants of the town, praying that the votes of a majority of the inhabitants present and voting, at a meeting called for the purpose, to apply for and consent to a city government in such town under the provisions of St. 1892, c. 377, be declared null and void, and that the Secretary be perpetually enjoined from attesting or delivering to the clerk of the town, or any other person or persons, a copy of the provisions of the articles of city government.</p> <p>Hearing before Morton, J., who ruled that St. 1892, c. 377, was unconstitutional, ordered both petitions dismissed, and reported the cases for the determination of the full court. The material facts appear in the opinion.</p> <p>The cases were argued at the bar in October, 1893, and after-wards were submitted on the briefs to all the judges except Barker, J.</p>

Writ of entry, dated January 20,1892, to recover a parcel of land in Fitchburg. Plea, nul disseisin, with a specification of defence, among others, that the demandant was estopped in equity to maintain the action, and that the tenant was entitled to unconditional relief against the same; and also setting up a claim for improvements. Trial in the Superior Court, before Braley, J., who allowed a bill of exceptions, in substance as follows.

<p>Rights of Pewholder — Adverse Possession — Demolition of Pews as Matter of Expediency.</p> <p>Two conveyances of pews in a Roman Catholic church in the form of deeds, except that neither of them was under seal or called for a seal, were executed in 1843 and 1852 by the Bishop, who owned the soil. The conveyances ran to the grantee and his heirs forever, subject to a condition, and described the terms on which the grantee might lose his rights as owner. The grantee brought an action of tort for the destruction jn 1885 of the pews by the defendant, a Roman Catholic priest, who had them taken down under instructions of the archbishop. Thereafter the society held religious services in a new church, and the old building was used for fairs, etc. given by the society, and for a Sunday school. The judge ordered a verdict for the defendant. Held, that the plaintiff was entitled to go to the jury on the question whether he had gained a title to the pews by adverse possession, and that in respect to his rights as owner, if such title should be established, the plaintiff stood in the same position as a pewholder in a church of any other denomination under the general rules of law, which are, that, if it has become necessary to take down a meeting-house if it has become so old and ruinous that its further use is not practicable, the parish or proprietors need not make payment to a pewholder for the removal of his pew; but if a meetinghouse is taken down, or the pews are removed merely as a matter of expediency, the pewholders are entitled to payment.</p>

<p>Personal Injuries — Master and Servant — Action.</p> <p>A. was employed by B. to wheel coal from a coal shed to a fire room. While he was shovelling coal in the shed, a load of coal was dumped through a hatchway in the roof, striking and injuring him. A. had been in B.’s service for four years and a half, and knew the way in which coal was put into the shed, but did not know the exact time when it would be done. The coal was brought up on lighters by a canal, and discharged from the lighters into the shed. During his employment, A. had never been warned by B. when coal was to be delivered. Held, that there was no breach of duty on B.’s part upon which A. could found an action for his injury.</p>

<p>Tort for personal injuries occasioned to the plaintiff, while in the employ of the defendant, by the fall of a staging upon which he was at work. The declaration contained three counts, the first at common law, and the second and third under the employers’ liability act, St. 1887, c. 270, § 1, els. 1, 2, the second alleging that the injury was caused by a defect in the ways, works, or machinery of the defendant, and the third alleging that the injury was received by reason of the negligence of one Thomas H. Campbell, a person employed by the defendant, and intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant was a corporation engaged in the general business of running a sawmill and lumber yard at Holyoke. The staging in question was used in piling the wood, which was drawn from the mill to the wood pile in cart loads; it was first thrown on the ground, then thrown from the ground to the staging, and from the staging on to the pile. The wood which formed the pile was the ends of sawed lumber, which were about stove lengths, and of different sizes. The staging was about fifteen feet high, twenty feet long, and five feet wide, and was held in its place by three brackets, or triangles. Each bracket was fastened to the wood pile by six wooden cleats, one end of each cleat being nailed to the wood pile and the other end to the upright of the bracket, there being three nails at each end of the cleat, and each nail being about two inches long; the cleats were about a foot and a half or two feet long, about two inches wide, and about an inch thick. The brackets were made of three pieces of wood, and, at the time of the injury to the plaintiff, had been in use this same way about two years without accident. Planking to form the platform was placed on the top of the brackets. Some of the witnesses for the plaintiff testified that there was one prop or support under the outer edge of one end of the staging when it fell; also that the wood in the pile was soft, and that nails could not be so firmly attached to soft as to hard wood; but there was evidence in behalf of the defendant that nails would hold more firmly in soft than in hard wood. The staging was put up at three or four o’clock on the afternoon of May 16, 1892, and fell at about seven o’clock on the next morning. The stagings were generally in use at one place from four days to a week at a time.</p> <p>The brackets were moved about from place to place as the progress of the work required. One of the witnesses for the plaintiff testified that the uprights of the brackets were split, and had nail-holes in them from former use; that there were no props or supports specially designed for the outside of the staging; and that lumber could be obtained in the yard of the defendant from which they could be made. The evidence tended to show that there were sufficient material and nails at hand.</p> <p>The staging fell by pulling away from the pile of wood, and the evidence tended to show that the cleats remained fastened to the bracket after the fall of the staging, and that none of the material broke or gave way otherwise than that the cleats were forced away from the wood pile.</p> <p>The plaintiff testified that he had been in this country about ten years; that he worked a year and a half in the yard of the Hampden Mill, and about seven years in a dye-house at Holyoke; that he went to-work for the defendant in March, 1892, and worked until he was injured; that he never had anything to do with staging, and had nothing to do with building the staging which fell. In this he was corroborated' by one Leary, a witness for the plaintiff.</p> <p>The business at the defendant’s mill was under the charge of George S. Lewis, manager and assistant treasurer. There were about 125 or 130 men employed at the mill and in the yard.</p> <p>Robert Welch testified for the plaintiff that Ronald Gillis was superintendent of the yard and had charge of the piling gang before Thomas H. Campbell, named in the declaration, was hired; that while in charge of the piling gang Gillis made these brackets and built the staging to the pile; and that, when Campbell was hired, Campbell built the staging. Some of the witnesses for the plaintiff testified that Campbell ordered one Leary, a member of the piling gang, to assist him in building the staging which fell, and Leary did assist him; that about a month before it fell, Campbell built this staging and ordered another member of the piling gang to assist him; that the latter did assist him; and that these were the only times the staging was built by Campbell. All the witnesses for the plaintiff testified that no one gave any orders to the piling gang except Campbell; that he was the foreman of the gang; that he sometimes worked with his hands ; that he worked when he pleased, and did whatever work he pleased; that when he was working he was overseeing the men and giving them directions; that these two stagings were the only ones built previously to the accident while Campbell was with the gang; that he looked to see if the men were on hand at the proper time, and made inquiries as to absent ones; that he placed the men at work wherever he saw fit; that he hired the plaintiff and one Sullivan at different times upon their application to him for a job; and that after the accident Campbell rebuilt the staging.</p> <p>The office of the defendant was in the yard, and Lewis was much of the time in the office. Some of the witnesses for the plaintiff testified that about half a load of wood was put upon the staging at a time previously to the loads which were put upon the staging which fell, and that after the staging was built, on the day preceding the accident, a whole load of wood was put on by order of Campbell. The plaintiff testified that, on the morning of the accident, Campbell told the men to put a whole load of wood upon the staging, and in this he was corroborated by one Welch and by one Hannifin, but on cross-examination the latter testified that the order was to “ put the load on”; that Campbell remained at the pile twenty minutes or half an hour after he gave the order, and then went to another pile, and was not present when the whole load was put on, nor when the staging fell, but was in the yard; that Campbell directed the plaintiff and Leary to go upon the staging and throw the wood upon the pile; that the plaintiff had just stepped upon the platform, and Leary was about to step on, when the staging gave way and fell, carrying the plaintiff down with it; and that it was usual to have two men stand upon the staging to throw the wood on the pile.</p> <p>Welch 'testified for the plaintiff that it was usual to have two supports to the outside of the stagings which had been built previously to the one which fell, one under each end of the staging.</p> <p>Lewis testified for the defendant as follows: “I take direct supervision of the yard every day when I am there; Gillis is superintendent of the yard; this is his business; he principally devotes his attention to seeing that the men do their duty in piling the wood, and attending to the sale of the wood. In March, 1892, I hired one Thomas H. Campbell to work in connection with the piling gang; Campbell was put to work because he was more competent than the other men I had on the wood in the yard; he had some brief authority; I gave him authority to direct the motions of the men in regard to their work and to work with them; he had no authority to hire anybody, and I never knew him to discharge anybody; he was always working when I saw him; I made it a point, as I always do with all the men, to see that he was at work as one of the crew; I had no knowledge that the staging was overloaded, or that Campbell gave any orders to overload the staging.”</p> <p>On cross-examination, he testified that he was not an expert in relation to the building of stagings; that he did not know how many stagings were in use in the yard; that he never had any particular cause to examine stagings; and that he hired Campbell to work with the men, and to see that they did their work, and that there were not too many on the pile.</p> <p>The plaintiff asked Lewis the following question: “ Did not Campbell have general authority over these men, telling them what to do, and what pile to go to, and how many to do the piling, and who to go on the staging, and who to go on the pile, and who not ? ” To which the witness answered, “ Yes.”</p> <p>Gillis testified for the defendant that he was the foreman of the yard, and had general charge of the yard, having special charge of selling the wood of the defendant corporation; that Campbell and his gang were under Gillis’s authority; that Campbell did manual work; that that was his principal work, but that he had some authority over the men; that at one time Campbell came to him and said he wanted some more men, and he gave him directions to hire them; that he kept the time of Campbell and the men of his gang, and paid them with the money he received from the office; that he had no knowledge that the staging was put up or who put it up; that there was an abundance of nails and material for the erection of the staging; that there was no defect in the materials of which it was composed, and he had no knowledge that at any time a whole load of wood was put upon the staging; that the work of putting the staging together was left to the men; that it was not assigned to any one in particular; that the staging was moved about from place to place as the work required, and was secured to the pile ; that it was the duty of the men to fasten and secure it; and that this duty was not assigned to any one, being left to the men themselves.</p> <p>On cross-examination, he testified that he would not be surprised if Campbell hired a man; that when he saw men at work who had been hired by Campbell, he made no inquiries in regard to them; that there were about twenty-five or thirty men at work in the yard; that he had no assistant in the work of selling wood, and he attended to that business himself; that there was a separate gang of about fifteen men for piling wood; that the yard was large; and that this gang might be at work piling wood a quarter of a mile from where he was at work selling it.</p> <p>Emory A. Ellsworth, an engineer, called as a witness, was asked as follows: “ Now, take a staging fifteen feet high, built with those brackets (showing photograph), a bracket made of three pieces, and fastened to the wood pile with those cross sticks on each side of each upright, there being three uprights, with three nails driven at each end of the cross stick, one into the wood pile and the others into the bracket, there being three brackets and eighteen of those cross sticks together, fastened in that manner, the staging being about five feet wide and about twenty feet long, and having one upright in front, in your judgment would that be a proper staging to build, for putting on a half-load of wood, a dump cart being a load, on the staging, and two men to stand on the staging to throw it up on the pile ? ”</p> <p>To this question the defendant objected, but the judge permitted the witness to answer, subject to the defendant’s exception, and he answered that such a staging would be improper.</p> <p>At the close of the evidence, the plaintiff was required to elect whether he would go to the jury on the first count, or on the second and third counts, and he elected to go upon the latter counts.</p> <p>The defendant requested the judge to rule as follows: — “ 1. Upon the whole evidence the plaintiff is not entitled to recover under the second count of his declaration. 2. Upon the whole evidence the plaintiff is not entitled to recover under the third count of his declaration.” The judge declined so to rule.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Will— Competency of Attesting Witness.</p> <p>A will gave to a town the interest of a fund of about $2,500, to he used each year in the purchase of books for the town library. One of the attesting witnesses was an inhabitant of and a taxpayer in the town, having real estate valued at about $2,500. The valuation of the town was about $500,000; and at the time the will was executed, a library was maintained by the town for the use of all its inhabitants, and the money received from the dog fund, so called, was usually appropriated therefor. Held, that the witness was competent.</p> <p>The fact that an attesting witness to a will, by which the interest of a fund is given to a town to he used in the purchase of bpoks for the town library, may have, as an inhabitant of the town, the use of the books so purchased, does not render him incompetent.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ, on September 12, 1892. The declaration contained three counts, the first two of which were under the employers’ liability act, St. 1887, c. 270, and the third was at common law. Trial in the Superior Court, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The writ was dated October 11, 1892, and was served on October 12, at 9.30 o’clock, A. m., by attachment, and upon the defendant afterwards, on October 15, 1892. The notice of the time, place, and cause of the injury was dated October 11, and was left at the defendant’s house in the afternoon of the same day, and actually received in hand by the defendant on October 12,1892.</p> <p>The plaintiff and the person who took the notice to the defendant’s house testified that they went together to the office of the attorney who made the writ, on October 11, and while they were there the notice was written and the writ was made and dated; and that the notice was then given to the bearer to take to Millbury, where he delivered it at the defendant’s house in the afternoon.</p> <p>The defendant asked the judge to rule that, the notice not having been served before the writ was issued, the action upon the counts under the employers’ liability act could not be maintained. The judge so ruled, and the plaintiff excepted; and the case proceeded upon the remaining count.</p> <p>There was evidence tending to show that the plaintiff was employed to work in the mill yard of the defendant in the latter part of June, 1892; that he was then entirely unacquainted with the defendant’s machinery, and was not in terms employed to work upon any machinery; that he had been frequently called from the mill yard into the defendant’s mill, to take lumber from the rear end of a planer then and there used by the defendant in his works ; that the planer had two sets of knives, one of which planed the upper side of the boards, which were run through it with the aid of rollers, and fed by the person in front in charge of the machine, and the other set of knives, which planed the under side of the boards, and which revolved under the bench, about ten inches from the rear, on a cylinder of about five inches diameter, which knives and cylinder were entirely unguarded, unprotected, and uncovered; and that the lower edge of the knives, as they revolved on this cylinder, were about twenty-seven inches from the floor and under the bench of the planer, except the portion of the knives that projected through the upper planer of the machine to plane the under side of the boards that passed over the knives.</p> <p>There was also evidence tending to show that the knives could not have been seen by the plaintiff while taking-lumber from the rear of the bench, as he stood up; and he testified that he neither knew the danger nor the location of the knives under the planer. It also appeared that the upper knives on the same planer were protected by a bonnet and blower, which covered the knives and took the shavings away; and that the plaintiff had been taking shavings away from the rear of the planer with a shovel as a part of his duty. The plaintiff testified that the defendant took the shovel away from him, and made him use his hands to fill the basket in taking away the shavings; that when injured, the plaintiff’s duty required him, by direction of the defendant, to take away the boards from the rear of the planer; that there was no table or other means of sustaining the boards as they came through the planer close to the rear end thereof, and the shavings had become so full under the end of the planer as to clog up and hinder the taking of the boards away; that the plaintiff, for the purpose of clearing the shavings from the rear of the planer, kicked the shavings with his foot to clear them away while he was also in the act of taking short boards, from two to four feet in length, of which he had an armful; and that his foot struck the knives under the end of the planer, and was cut off. There was evidence for the defence, that the plaintiff had been warned not to use his foot to kick out the shavings, and that other means were provided for that purpose ; all of which was denied by the plaintiff.</p> <p>The plaintiff, for the purpose of showing the neglect of the defendant in not having the knives protected under the mar chine, and that such protection was usual, asked the defendant, who was a witness, the following question: “Don’t you know that Mr. Baker’s planers doing the same kind of work have blowers, and are protected under and on top ? ” This question was objected to by the defendant, and excluded; and the plaintiff excepted.</p> <p>Thomas Strafford, a witness for the plaintiff, testified that he was at work upon Baker’s planer in Worcester, and had been at work on Morse’s planer in Millbury, and had run both planers; that there was a bonnet or blower to take away the shavings on the top cutter of the planer, but that there was nothing of the kind on the rear or lower cutter. He was asked by the plaintiff the following questions: “1. Was there any blower to take away the shavings on the planers doing the same work as Morse? 2. Have you seen, in your experience among planers other than this of Mr. Morse, doing the same kind of work, guards or protection to the knives under the planer? 3. Whether other planers that you have worked upon have anything to take away the boards from the rear of the planer? ” These questions were severally objected to by the defendant, and excluded; and the plaintiff excepted.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Pauper — Husband and Wife — Burden of Proof — Divorce — Justifiable Cause for Living apart — Evidence.</p> <p>In an action by a town against a husband for support furnished to his wife as a pauper while she is living apart from him, the burden is on the plaintiff to prove that she is so living apart for justifiable cause.</p> <p>The commencement of proceedings for a divorce by a husband against his wife on the ground of her cruelty towards him will not of itself alone justify her in leaving his house and enable her to carry his credit with her, if he is willing to provide proper support for her there.</p> <p>In an action by a town against a husband for support furnished to his wife as a pauper while she is living apart from him, evidence of the judgment in a suit for divorce brought by the husband against the wife is rightly excluded.</p> <p>In an action by a town against a husband for support furnished to his wife as a pauper while she was living apart from him, it appeared that the marriage of the parties occurred a little more than a year before the separation; and there was evidence of a lack of harmony between them almost from the time of the marriage. Evidence was admitted, against the plaintiff’s objection, in regard to the relations between them shortly before their marriage, and to the wife’s conduct and conversations in reference to the proposed marriage. Held, that it could not be said that there was error in admitting this evidence.</p>

<p>Personal Injuries — Master and Servant — Action.</p> <p>If, while a telegraph pole is being raised by a gang of workmen, the tool, which is a proper one, used in supporting the pole while it is partly up breaks, and the foreman directs the man holding it to use instead another tool, which is an improper one for the purpose, and the pole falls upon one of the workmen and injures him, he cannot maintain an action for his injury against his employer on the ground of a breach of duty, in the absence of evidence that the latter had not furnished a sufficiency of proper tools within convenient reach.</p>

<p>Devise and Legacy — Realty and Personalty.</p> <p>A testator, by the first clause of his will, directed his executor to pay debts, and “ the legacies hereinafter given, out of my estate,” and by the second clause he gave his real estate and certain personal property to his wife for life. By the third clause he provided as follows: “ All the rest of my personal property, consisting of stocks, bonds, mortgages, cash in hand, and evidences of debt, I give and bequeath to my said executor on the following trusts, viz.” to his wife for life, “ and after her decease, first to pay over to my daughter D. . . . the interest and income of two thousand dollars. . . . After the decease of my said daughter, the principal sum of two thousand dollars to be paid, . . . but if she shall leave no children or grandchildren at her decease, one thousand dollars of said principal sum to be paid to my daughter R. . . . Second, to pay over to my daughter R. the sum of twenty-five hundred dollars ”; and authority was given to advance $500 to her in case of marriage, “ to that extent diminishing the annual income to be paid to my said wife.” By the fourth clause, beginning “ After satisfying the above provisions,” he disposed of the residue, real as well as personal. Held, that the gifts to the testator's daughters in the third clause of the will were to be charged upon the personal estate only.</p>

Complaint for keeping a liquor nuisance in the town of Rock-land, from October 1, 1891, to March 12, 1892. At the trial in the Superior Court, before Mason, C. J., there was evidence tending to show that the defendant kept the premises in question during the time covered by the complaint, and that while so kept the premises were used, with his knowledge and consent, for the sale of intoxicating liquor.

Indictment, charging that the defendant, on March 29,1893, “ did have in his possession, and did offer and expose for sale, and did sell, one trout, said trout having been taken in this Commonwealth, and not then and there being alive.” Trial in the Superior Court, before Sherman, J., who reported the case for the determination of this court, in substance as follows.

<p>Personal Injarles — Defective Highway — Drunkenness — Instructions.</p> <p>In an action against a town for personal injuries occasioned by a defective highway, there was evidence tending to show that the plaintiff was drunk at the time of the accident. At the close of the charge to the jury, the defendant asked for further instructions, first, that the alleged defect must have been the sole cause of the injury, and secondly, that “if the jury find that the plaintiff was more or less drunk, and that this state was a contributing cause to the injury, the plaintiff cannot recover." The judge gave the first in terms, and added, “ If without drunkenness he would not have been injured, then he cannot recover.” Held, that the defendant had no ground of exception.</p>

<p>Mortgage — Bill to redeem — Premature Action — Equity Pleading.</p> <p>A bill in equity to redeem an instrument in the nature of a mortgage, brought before the day named in the instrument for the payment of the money secured thereby, cannot be maintained, although the plaintiff is entitled to redeem at the time of the hearing.</p> <p>A bill in equity to .redeem an instrument in the nature of a mortgage was brought before the day named in the instrument for the payment of the money secured thereby. One paragraph of the bill alleged the execution of the instrument, and that the plaintiff promised to pay the money secured thereby on demand. The answer admitted the allegations of this paragraph, except that the original of the instrument was referred to for greater certainty. After a hearing of facts offered by the plaintiff to show that the contract in regard to the time for paying the money was different from that shown in the instrument, the judge found that the bill was prematurely brought. The plaintiff then first suggested that the answer excluded this defence. Thereupon the defendant was allowed, subject to equities arising from the facts reported, to amend his answer, setting up that he denied that the plaintiff promised to pay the money on demand. Held, that, if an amendment of the answer was necessary, the defendant was entitled to have the benefit of it.</p>

<p>Neglect of Father to support Minor Child — Defence of Illegitimacy of Child,— Effect of Record of former Conviction — Estoppel.</p> <p>The record of the conviction and sentence of a father upon a complaint, under the St. of 1885,c. 176, for unreasonably neglecting to support his minor child, is conclusive evidence that the paternity of the child was determined, and the father is estopped to set up the illegitimacy of the child as a defence to a subsequent complaint under the same statute for a similar offence.</p>

<p>Contract, with a count for money had and received. The answer was a general denial, and the statutes of frauds in both Rhode Island and Massachusetts.</p> <p>At the trial in the Superior Court, before .Fessenden, J., the plaintiff introduced evidence tending to show that in May, 1892, he held six promissory notes against the defendant’s sister, Mrs. Walker, two of which notes, amounting to about $1,200, were secured by mortgages on her farm; that the remaining notes, amounting to about $1,400, were unsecured; that on the 28th day of said May Mrs. Walker made a mortgage of the farm to the defendant for the nominal consideration of $3,000, and also, on the same day, a mortgage of all her stock, agricultural tools, etc. on said farm, for which the defendant paid her no consideration except a promise that he would pay all her debts, including all the plaintiff’s notes, and several small claims amounting to about $250; that the plaintiff, learning of the mortgages, commenced a suit against Mrs. Walker on the notes, and attached the farm on June 1,1892, returnable in Bristol County; that within a day or two thereafter the defendant paid five of the notes, and promised Mrs. Walker to pay the other note, amounting to about $815; that this promise was repeated by the defendant to the plaintiff himself; and that, relying upon said payments and said promise, the plaintiff executed two discharges to the defendant of the prior mortgages on the farm, and also abandoned his suit and attachment against Mrs. Walker, and caused the same to be discharged on the record, and the farm and personal property were conveyed by absolute deeds to the defendant by Mrs. Walker about June 9, 1892, all of which the defendant then held free from all encumbrances, and no consideration was paid therefor except as aforesaid.</p> <p>The plaintiff testified, on cross-examination, “ Mr. Wilson [who was the defendant’s agent] told me that Mr. and Mrs. Carpenter both sent word that they would take care of the last note when it became due”; and when asked, “You had no conversation with Mr. Carpenter, or anybody representing him, in relation to the attachment, — you simply ordered the attachment discharged because you supposed that Mr. Carpenter was going to pay it ? ” answered, “ Yes.”</p> <p>The plaintiff also testified that he had ever since relied upon the defendant to pay the note of $815, and since this action was brought had discharged Mrs. Walker therefrom in writing, and had received from her a power of attorney to bring an action against the defendant in her name; and that payment of this note was demanded of the defendant before this suit was brought, and he refused to pay the same, and sent the plaintiff to Mrs. Walker.</p> <p>The defendant introduced evidence tending to show that he promised to pay the plaintiff only the amount of the ■ two notes secured by mortgage on the farm, that the property conveyed was worth no more than he had already paid, and that his promise, whatever it was, was void under the statute of frauds; and he read and offered in evidence the Rhode Island statute on that subject. The plaintiff then put in evidence, and offered to read, the decisions in Urquhart v. Bray ton, 12 R. I. 169, and Wood v. Moriarty, 15 R. I. 518.</p> <p>Both parties to the action lived in Rhode Island, and all the aforesaid negotiations and conveyances were made and executed in Rhodé Island, and both parties agreed that the law of Rhode Island should govern the case, and that the judge might instruct the jury as to such law, instead of reading the statute and the decisions to the jury.</p> <p>At the close of the evidence, the defendant asked the judge to rule that the plaintiff could not maintain the action. The judge declined so to rule; and the defendant excepted.</p> <p>The judge instructed the jury that, upon this evidence, accordingly as they found the facts to be, they might find for the defendant, or that they might, notwithstanding the promise was only oral, find for the plaintiff, not exactly upon the $815 note as such, but to an amount equal to the sum due on that note. The jury so found; and the defendant alleged exceptions.</p> <p>After the verdict, the defendant filed a motion to set it aside, as against the evidence and the law, and because there had been a mistrial of the case by reason of a mistake, misapprehension, and misapplication of the legal principles applicable thereto. The judge overruled the motion; and the defendant appealed, and excepted.</p>

<p>Insolvency Proceedings — Partnership Note payable to Partner and indorsed to Holder.</p> <p>The holder of a partnership note made payable to one partner and indorsed by him to the holder may prove it in insolvency against the estates both of the firm and of the indorsing partner before any dividend is declared on either.</p>

<p>Intoxicating Liquors — Illegal “ Keeping ” for Sale —Master and Servant.</p> <p>A complaint for unlawfully keeping for sale intoxicating liquors, with intent unlawfully to sell the same, is supported by proof that at the time named therein the defendant had in his pocket, on his person, intoxicating liquor which he intended to sell in violation of law; and it makes no difference that he intended to make the sales in the presence of his employer.</p>

<p>Complaint, for keeping and maintaining a common nuisance, to wit, a certain tenement in Haverhill used for the illegal sale and illegal keeping of intoxicating liquors, on March 1,1892, and on divers other days and times between that day and May 21, 1892. Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Evidence was introduced by the government tending to prove that the defendant was the owner of two buildings adjoining each other and numbered 197 and 199 River Street, in Haverhill. The buildings were separated by an open passageway ten feet wide. The building numbered 197 was occupied by the defendant as a shop used for- the sale of groceries and provisions, and also as a dwelling-house. The shop was upon the ground floor of this building, and the rear part of the shop was divided off from the front by a partition. From this rear room a door led out upon a platform from which steps descended into the passageway. There was no other door which led from the defendant’s building to and upon this platform. Nearly opposite the platform across this passageway there was a door in the building numbered 199 leading into the ground floor of the building, and from the ground floor there was a door leading into the cellar of the building. A witness for the government testified that on May 15, 1892, which was Sunday, he was a special police officer, and observed the two buildings a large part of the day; that during the day sixty men went from the street through the passageway, and turned towards the platform, a large part of them returning to the street after a short stay ; that between the hours of twelve and one o’clock he saw the defendant, wearing a cardigan jacket, come seven times from the platform and cross the passageway, and disappear in the direction of the door in the building numbered 199 ; that the last mentioned door, as well as the door leading to the platform,-was concealed by the method of construction of the building from the view of the witness; that each of the seven times the defendant returned, appearing to have something with him which he held with his right hand under the cardigan jacket; that once the defendant returned carrying something in his left hand, which seemed to the witness, from his post of observation in the third story of a building one hundred and thirty feet away, to be lager beer bottles full of something; and that these journeys across the passageway were each made shortly after men had gone into the building numbered 197, as before described. Another witness for the government, observing the buildings from another point, saw the defendant on the same day come once from the door of the rear room of the shop upon the platform, cross the passageway, and enter the door leading into the building numbered 199, and return with a bundle done up in a newspaper.</p> <p>On May 17, 1892, officers visited the two buildings with a</p> <p>search-warrant. In the cellar of the building numbered 197, and in the part used as a dwelling-house, a large number of empty lager beer bottles were found. A witness called for the government testified that he occupied the ground floor of the building numbered 199 as a tenant of the defendant, and also used the cellar for the storage of coal; that another tenant at the time occupied the upper floor, and had in the cellar coal and some wash tubs ; and that the intoxicating liquors therein were not the property of the witness, and he knew nothing of them. The last named tenant was not called as a witness.</p> <p>The government was permitted to show that, on said May 17, the officers visited the cellar of the building numbered 199, and there found the following articles: 114 bottles of lager beer, 15 gallons of lager beer in a barrel, a pint and one half of whiskey-in two bottles, 17 cases containing lager beer bottles full and half full, one empty beer bottle, 16 empty jugs, one twenty-gallon cask, and one ten-gallon cask. This evidence was admitted, against the objection of the defendant, who excepted to its admission.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Educational Corporation — Maintenance of Public Ferry — Ultra Vires — Action — Principal and Agent — Ratification.</p> <p>It is no defence to an action against an educational corporation, for personal injuries occasioned to a passenger for hire upon a boat used at a public ferry operated by the corporation, through the negligence of the ferryman in managing the boat, that the maintenance of the ferry was ultra vires.</p> <p>It is not necessary that the ratification by a corporation of acts of its agent should be by a formal vote.</p> <p>If a corporation, acting through its managing officers, knowing that a certain business has been carried on by those who assumed to act as its agents in doing it, that the income of the business has been received and the expenses of it paid by its treasurer in his official capacity, and that the balance of the receipts above the expenditures is in its treasury, adopts the action of the treasurer and elects to keep the money, the jury, in an action against the corporation for an injury arising from the doing of the business in question, will he authorized to find a ratification by the corporation of the acts of such agents.</p>

<p>Contract, by the administrator of the estate of Ernest H. Porter, upon a policy of insurance issued by the defendant on the life of the intestate. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Dog — Damage done to Sheep — Liability of Owner to County — Measure of Damages.</p> <p>The owner of a dog engaged with other dogs in doing damage to sheep is liable to the county, under Pub. Sts. c. 102, § 106, for all the damages so done, and not alone for that part done by his own dog; and it makes no difference that one of such dogs belonged to the owner of the sheep.</p> <p>In an action by a county, under Pub. Sts. c. 102, § 106, as qualified by St. 1889, c. 454, to recover of the owner of a dog for the damage done by the dog to sheep, the assessment of damages by the county commissioners is not conclusive, .but the defendant is entitled to show that the amount awarded by them is excessive.</p>

<p>Personal Injuries — Railroad — Negligence — Due Care.</p> <p>In an action by a locomotive engineer employed by a railroad corporation, for personal injuries occasioned by the alleged negligence of the servants of another railroad corporation, there was evidence that the plaintiff was, with the locomotive engine in his charge, lawfully in the defendant’s yard; and that, by the negligence of'the defendant’s servants in giving a wrong signal, his engine went off the track at an open switch. Three attempts were then made to get the engine on the tracks again by attaching an engine of the defendant to the plaintiff’s engine and letting on steam. The coupling of the two engines together was done by the defendant’s servants. In the first attempt, the plaintiff endeavored to assist by pulling the throttle of his engine and letting on steam. His engine was damaged by going off the tracks, the cover on the cylinder head being cracked, and the cylinder rod bent. The plaintiff discovered this condition of things before the first attempt to get his engine on the tracks failed. After this, and before the second attempt was made, the plaintiff got off his engine to fix the cylinder rod, and was off when the second attempt was made, and had just got back to the engine when the third attempt was made. When the first attempt was made the engines were coupled together with a link; at the second attempt they were coupled by a rope, which broke ; and at the third attempt they were coupled by a rope having a link on one end and a hook on the other. The link was fastened in the mouth of the drawbar of the plaintiff’s engine, and the hook, instead of being put into the mouth of the drawbar of the other engine, was placed on top of the drawbar, and was kept in place by the coupling pin. In the third attempt the pin broke, the rope flew back, and the hook struck the plaintiff on the head, and he received the injuries complained of. There was also evidence that this mode of fastening the pin was improper. Held, that the case should have been submitted to the jury.</p>

<p>Oral Promise to buy Land — Trust — Statute — Resulting Trust — Equity Practice — Motion to frame Issue for Jury — Discretion of Court.</p> <p>B. orally promised A., who owned land subject to a mortgage thereon, to attend a foreclosure sale of the same, and to bid it off for him. B. accordingly bid off the land at the sale, received a deed of the same, and gave a mortgage back, the mortgage note being signed by him alone, for the larger portion of the purchase price, paying the balance with his own money, and receiving part only of such balance from A. on the same day. Held, upon a bill in equity by A. against B. for a conveyance of the land, that, under Pub. Sts. c. 141, § 1, B. could not be charged with a trust in respect of the land ; that there was no resulting trust in A.’s favor; and that the bill could not be maintained. Allen & Knowlton, JJ. dissenting.</p> <p>A motion to frame issues for a jury in an equity case is addressed to the discretion of the presiding justice, and this court will not revise such discretion on appeal from an order overruling the motion, especially when it appears that the cáse had been marked for hearing six weeks, and the juries had been excused before the motion was made; and an omission to file a replication does not better the case.</p>

<p>Personal Injuries — Fellow Servant — Master and Servant — 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>Employers’ Liability Act — Election — Separate Allegations in Separate Counts — Notice.</p> <p>All the grounds of liability which there is any evidence to support under St. 1887, c. 270, § 1, els. 1 and 2, may properly be alleged separately in separate counts; but whether they can all be alleged conjunctively in one count, queere.</p> <p>A notice to an employer under St. 1887, c. 270, recited that an employee was killed “ by a stone being precipitated upon him from your derrick as a result of your negligence, and of the negligence of some person for whose negligence you are liable." Held, that the notice was either sufficient, or that the jury might find that there was no intention to mislead, and that the defendant was not misled by it.</p>

<p>Personal Injuries —■ Negligence of a Fellow Servant — Staging as a completed Structure — Specific Acts of Negligence not admissible in Evidence.</p> <p>In an action for personal injuries sustained by the plaintiff while in the defendant’s employ by falling from a staging upon the roof of a house, which staging was put up for the purpose of building a chimney, it appeared that the plaintiff, a mason’s tender, was sent by the defendant to “tend” the defendant’s son, who was building the staging. The defendant furnished an abundant supply of materials for constructing the staging, but it was not built under his supervision. Held, that if the accident was caused by the negligence of the son in selecting improper materials, or in improperly fastening them, it was the negligence of a fellow servant, for which the defendant would not be responsible.</p> <p>In an action for personal injuries sustained by the plaintiff while in the defendant’s employ by falling from a staging upon the roof of a house, which staging was put up for the purpose of building a chimney, the plaintiff cannot recover if there is no evidence which would justify the jury in finding that the defendant undertook to furnish a staging for the plaintiff as a completed structure.</p> <p>In an action for personal injuries sustained by the plaintiff while in the defendant’s employ by falling from a staging upon the roof of a house, which staging was put up for the purpose of building a chimney, the plaintiff offered to show that the defendant’s son, who was building the staging and to “tend” whom the plaintiff had been sent, had previously built another staging which had fallen down, for the purpose of showing that the son was not a competent person to put up the staging. Held, that specific acts of negligence were not admissible for this purpose.</p>

<p>Will — Husband and Wife — “ Written Consent ” to Will — Estoppel — Waiver — Practice.</p> <p>The signature of a husband, who has been named as the executor of his wife’s will, to the petition for his appointment as executor and to his official bond, is not a “ written consent ” to the will, within the meaning of Pub. Sts. c. 147, § 6.</p> <p>The acceptance by a husband of the appointment of executor of his wife’s will, to which he has not assented in writing, and by which nothing is devised to him, does not estop him from claiming his share of her personal estate, under the Pub. Sts. c. 135, § 3, and c. 147, § 6, or amount to a waiver of his claim.</p> <p>It seems, that an administrator de bonis non with the will annexed of an estate cannot maintain an action at law against the administrator of the estate of the executor of the will, in the absence of an account in the Probate Court, for assets which the latter appropriated and assumed to administer, and which cannot be traced or identified as a part of the testator’s estate.</p>

<p>Personal Injuries — Private Way — Due Care — Reasonably Intelligent and Prudent Man — License — Invitation — General Exception to Judge’s Charge.</p> <p>Use of a railroad crossing by the public, unexplained, cannot be said, as matter of law, to raise a presumption of a license; gucere, if it is evidence of one.</p> <p>As against a bare licensee, a railroad company has a right to run its trains in the usual way without special precautions, if the circumstances do not of themselves give warning of his probable presence, and he is not seen until it is too late.</p> <p>In explaining to the jury, in an action by a woman for personal injuries, what he meant by a reasonably intelligent and prudent man, the judge said that they were not to inquire what conclusion a woman or child would come to with reference to the way where the accident occurred, but that the test was whether an ordinarily intelligent and prudent man would understand that there was an invitation to use the crossing as a public way. Held, that, although under a general exception to the charge, no point could be raised, yet, even if the court were to consider it, they should see no error.</p>

<p>Contract — Statute of Frauds — No Evidence of Delivery of Merchandise.</p> <p>In an action for work done, materials furnished, and storage, the evidence showed a contract to employ the plaintiff to build some houses, and a subsequent refusal to do so, and the purchase by the plaintiff, at the defendant’s request, of lumber, in order to be ready to fulfil the plaintiff’s part of the contract. There was no evidence of delivery of any part of the lumber. The plaintiff said to the defendant, that the lumber must be unloaded, and asked what he should do with it; the defendant suggested hiring a piece of land; and when the plaintiff told the defendant that he had found a lot for a certain price per month where they could store it and have room for framing it, the defendant answered that, as it would have to stay there but a short time, they had better put it there. Held, that the action could not be maintained.</p>

Libel for divorce, on the ground of desertion. Hearing before Braley, J., who ruled, as matter of law, that the libel could not be maintained, ordered it dismissed, and reported the case for the determination of this court. If the ruling was right, the order was to be affirmed ; if wrong, a decree of divorce nisi, for desertion, was to be entered. The facts appear in the opinion.

<p>Contract, to recover taxes assessed on the plaintiff by the defendant for his real and personal estate for the years from 1883 to 1891, inclusive.</p> <p>The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, which stated that all of the taxes were paid under protest, or its legal equivalent; that, during all of the years for which the taxes were assessed, the plaintiff carried in to the assessors a list of all his taxable property, as required by law and the published notice of the assessors, and that all of the inhabitants of the defendant city liable to be assessed do not carry in such a list.</p>

<p>Tort, for personal injuries sustained by the plaintiff while operating a circular saw in the employ of the defendant. Trial in the Superior Court, before Braley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that he was a carpenter by trade, and bad worked for the defendant corporation about two years and a half; that one Diman was the defendant’s superintendent, and the plaintiff worked under his orders and direction; that previously to July 5, 1892, there was no guard over the saw in question; that some time in the spring of that year the superintendent brought a guard to the plaintiff, but it was not put in a position for use until July 5, prior to which date he had been requested, both by the treasurer of the mill and the superintendent, to put the guard in position; that the plaintiff then put up the guard over the saw so that it would hang about three feet above the saw, and, by turning a thumb-screw, would drop plumb and even over the saw at the will of the operator; that the guard was a semi-circular piece of iron flat on the sides and hollow inside, suspended by a rod, the ends projecting about five inches beyond the teeth of the saw on either side; that previously to the accident, which occurred on July 8,1892, he had received no instructions or directions from any one as to the use of the guard; that he had never used or seen such a guard before, or ever heard of its use; that he did not know there was any danger attending its use; that, on the day of the accident, he had some seven-eighths boards to saw into half-inch strips; that he fixed his gouge at the side of the saw in the proper position for this work; that this gouge was a movable piece of iron five and one eighth inches high, running parallel with the saw, and intended to keep the boards which were being sawed in a proper position, so that the width of the sawed strip would be even and true; that the work could not be properly done without the use of the gouge; that by turning the thumb-screw he lowered the guard, which was about one and a quarter inches through at the bottom, over the saw as far as it would go ; that the gouge prevented the guard coming down close to the table, and the lower edge of the guard was above the table at a distance equal to the height of the gouge, as one edge of the guard brought up on top of the gouge; that the gouge had to be where it was to saw that kind of stuff; that the saw projected about eight inches above the table horizontally, and one and a half inches vertically; that he sawed off one strip of board, which was left lying on the table back of the saw; that he then pulled the board back again, and was sawing off the second strip, and when the second strip touched the end of the first strip, which was nearly balanced on the farther side of the saw table, the first strip tilted up, and, hitting against the projecting end of the guard, was thrown on the teeth of the saw, and by the motion of the saw thrown with great swiftness and violence against the plaintiff, penetrating his arm and causing the injuries complained of ; that the plaintiff had no time to get out of the way ; and that he had never used the guard, except when he was sawing the strip which hit him, and part of the second one.</p> <p>On cross-examination, the plaintiff testified that he was forty-three years old; that since 1869 his business had mostly been carpentering; that since May, 1890, he had had charge of the carpenter-work of the defendant, and during that time had used this saw every day more or less; that he had charge of the machine, including tables, saw, and gouge, and that it was his business to report if there was any trouble with it; that he was the one supposed to know if there was anything the matter with it; that Diman said that “he had bought me something to keep from cutting my fingers ” ; that he had cut his fingers the winter before on this same saw; that he laid the guard down on the floor; that afterwards Diman asked him when he was going to put it up; that he told him, when he could get at it; that the treasurer spoke to him before it was put up, and wanted to know what he thought of it; that he replied that “ it might be a very good thing to keep the Sawdust off a man, — any further than that he did not think there was much benefit to be derived from it ” ; that afterwards Diman spoke to him again, and told him “ it was time it was put up ”; that “ he wanted it put up before I got hurt, so he would not be blamed for it ”; and that he did not put it right up then, but put it up on the 5th of July.</p> <p>The plaintiff testified further, upon cross-examination, that he formed the idea that the guard was to go over the saw, and to hang over the centre of it, when he was sawing; that he understood that the guard was made for the purpose of coming down over the saw, so that the saw would revolve inside of the opening ; and that that was the proper way to have it when it was being operated, so that it would cover up the top side of the teeth of the saw; that he knew it ought not to come one side or the other of the saw; that the reason he did not draw it down was because it could not come any farther; that he would have drawn it down, if it would have come, so that it would cover the teeth of the saw, because he understood that was the proper place for it; that he would have brought the guard down so it would have just cleared the stick, and would have been between seven eighths of an inch and an inch from the surface of the table; that that is what he would have done if the gouge had not been in the way; that that was. the proper position for it if the gouge had not been there ; that if it had been down there, the stick could not have tipped up in the way it did ; that he had a good many pieces to saw, the sawdust was flying, and he thought he would drop the guard down to keep the sawdust out of his eyes ; that he unscrewed the arrangement and let it drop down, and it brought up on the gouge ; that he could not drop it any farther without getting hold of it and springing it inside of the guage; that that could be done, but it would have required considerable spring to have pressed it inside the gouge; that he did not try it, but he did think of it, because he “ thought the thing was to put down on to the thickness of stock ”; that when the guard came down and stopped on the top of the gouge, he did not think it was down where it was intended to go; that if it had been down where he would have put it if the gouge had not been there, it would have prevented the stick tipping up and getting on top of the saw; and that he knew that at the time.</p> <p>On re-direct examination, the plaintiff testified that neither at the time of the accident nor. at any time before that did he know or think there was any danger of a stick being thrown back in the way this stick was, with the guard in the position it was in at the time of the accident; and that it was part of his duty to saw the stock as he was doing.</p> <p>The plaintiff called as a witness one Mark Phillips, who testified that he had been a millwright for thirty-five years, and had •worked as a carpenter in several mills; that he was familiar with circular saws, and had had charge of them for ten years, and had charge of putting up the saw in the defendant’s mill; that he thought this guard was not a safe and suitable appliance ; that he thought, with the guard in the position it was, resting on the gouge, it would be liable to catch and throw sticks; and that that would be one of the dangers of the guard.</p> <p>On cross-examination, he testified that he had charge of setting up this circular saw, and that the plaintiff worked under him; that he gave him the most responsible work to do; that he was a natural mechanic and a good workman ; that he recommended him to the defendant for its general carpenter; that the proper way to saw sticks of the size in question would be to have a stick about three eighths of an inch with which to push them along through ; that it might be a proper way to saw them without such a stick ; that when the guard was down on top of the gouge, the natural result would be that a stick would tip up and hit the guard; that any carpenter could see this; that he considered this an unsafe and unsuitable appliance, because you cannot see what you are doing; that if he had put the guard down where it was at the time of the accident, he would have kept it down; that if he had thought it was right when he got it there, he should have used it, and should not have used the stick ; that he would not have put it there; that he supposed the guard was intended to be set right over the saw, as near to the saw as it could be put; that the intention was to have the saw revolve inside the opening so that the teeth of the saw would be covered up; and that it was probably not intended that the guard should be used in such a position as it was at the time of the accident.</p> <p>The plaintiff also called as witnesses several other master carpenters, who were familiar with circular saws, and had used a guard like the one in question in the different mills in which they were employed, all of whom testified that they did not consider the guard a safe and suitable appliance for a circular saw, and that it was dangerous because it concealed the saw from sight; and on cross-examination they testified that, if the guard was drawn down over the saw as closely as possible to the wood which was being sawed, they did not think the stick would be thrown back.</p> <p>At the close of the evidence, the judge ruled, as requested by the defendant, that there was no evidence which would warrant a verdict for the plaintiff; and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Personal Injuries — Negligence — Want of Precautions.</p> <p>If, in an action for personal injuries occasioned to the plaintiff’s intestate by the caving in of the bank of a trench in which he was digging, there is some evidence that the defendant had notice of the danger and that the deceased had not, and there is also evidence that the precautions were not taken for the safety of the deceased which the defendant was bound to see taken, the jury are justified in returning a verdict for the plaintiff.</p>

<p>Contract, to recover a balance alleged to be due the plaintiff, according to an account annexed, and in pursuance of an oral promise of payment by the defendant, for labor performed and materials furnished in constructing a cellar for the defendant. The answer, among other defences, set up the statute of frauds. Trial in the Superior Court, without a jury, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared in evidence that the defendant made a written contract with one George L. Titus, under which Titus was to construct a cellar and dwelling-house on the defendant’s land; that Titus employed the plaintiff to build the cellar; that thereafter the plaintiff did build such cellar; and that then Titus became insolvent, and unable to complete his contract with the defendant.</p> <p>Titus testified, in substance, as follows : “ Before I went into insolvency I had a talk with the defendant. He asked me if I was going on with his house. I told him I did n’t think I should. He asked me what was the best thing for him to do, and I told him if he would pay the plaintiff for building the cellar I would throw it out from my business altogether, and he said he would. About two days after that, he came to my house and asked for the contract, and said he was going to pay the plaintiff for building the cellar. I gave him the contracts, which were in writing. I surrendered to him the contracts, with the agreement that he should pay the plaintiff for building the" cellar. I afterwards went into insolvency. No claim was made against the defendant by me nor by my assignee for work done in building the cellar. I informed the plaintiff of the arrangements I had made, and he was satisfied to let me go, and to look to the defendant for his pay. He never presented any claim to me nor to my estate. I had no written contract with the plaintiff for building the cellar. He was to have an entire price for doing all the mason work in the house, including the cellar.”</p> <p>The plaintiff testified, in substance, as follows: “ I made a contract with Titus to do the mason work in the house he was to build for the defendant, including the building of the cellar; the price was to be $555. I began on the cellar in July, 1891, and finished in the same month. After Titus had quitted the business there, I went to see the defendant, and asked him if I could have some money, and he said, ' will give you some money provided Titus will give me the contract papers,’ and said, ' will go up and see him.’ The next day he told me he would give me some money the following day. I went up previously and saw Titus to see if it was all right, and he said it was ; that the defendant had accepted the contract papers and had agreed to pay me for the cellar if I was satisfied, and I said I was. The next day I saw the defendant, and he paid me $125, part payment on the cellar. I gave him a receipt for the amount. At that time he asked me how much I wanted, and I told him I would like to have $250, and he said he had n’t got it, and all ■that he'could give me was $125, and he would give me the rest in a day or two. He did not ask me, and I did not tell him, how much my whole bill on the cellar was. That is all the talk I had with him. I have given up my claim against Titus. I have presented no claim against his estate. I look to the defendant on his agreement to pay me. I had no subsequent conversation with him. No written promise was given to me by him.”</p> <p>The defendant asked the judge to rule that the evidence would not warrant a finding for the plaintiff. The judge declined so to rule; and found for the plaintiff. The defendant alleged exceptions.</p>

<p>Personal Injuries — Defective Highway — Street Railway — Instructions.</p> <p>In an action against a city for personal injuries occasioned to the plaintiff, while driving a pair of horses attached to a coach, by reason of one of the wheels of the coach being caught in a hole between the paving stones forming the bed of a street railway track and one of the rails thereof, and the plaintiff being thrown from the coach, the judge instructed the jury, in substance, that the existence of a legally operated street railway in the road where the accident happened did not affect the responsibility of the city for any defective condition of the road “ which the city by proper care could have remedied without interfering with the lawful and proper operation of the railroad,” and gave an illustration which tended to show his meaning; and further instructed them that the city was not responsible for any injury caused by the lawful and proper construction, operation, and maintenance of the railroad; that the city was responsible for a defective condition which had grown up in the street, if it could remedy or cure it “ without unlawfully interfering with the lawful and proper operation of the railroad ”; and that the plaintiff must satisfy them that the street at the place in question was defective, and that the defect was such that the city could have remedied it “ without unlawfully interfering with the operation of the railroad.” Held, that the plaintiff had no ground of exception.</p>

Tout, for personal injuries occasioned to the plaintiff while in the defendants’ employ, by the alleged negligence of the defendants. Trial in the Superior Court, before Sherman, J., who, upon the plaintiff’s evidence, at the request of the defendants, ruled that the action could not be maintained; directed a verdict for the defendants; and, at the plaintiff’s request, reported the case for the determination of this court.

<p> Support of Paupers in State Lunatic Hospitals. </p> <p>The word “ support ” is used in the same sense in Pub. Sts. c. 87, § 31, as in §§ 32,33, and 34 of that chapter; and a city, having paid the price fixed in § 31 for the support of its paupers in a State lunatic hospital, is not liable for charges for clothing at the hospital and for breakage of crockery.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ as a loom fixer. The declaration contained two counts, one at common law and the other under St. 1887, c. 270. Trial in the Superior Court, before Sherman, J., who ruled, at the request of the defendant, that the action could not be maintained, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion.

<p>Charge for Services — Question upon Cross-examination — Discretion of Presiding Justice.</p> <p>B., while acting for A. under a power of attorney, received a sum of money, from which he deducted a very large amount for his services, no price. having been fixed in advance. In an action by A. against B. to recover the amount deducted, B. having testified what kind of work he was accustomed to do at the time he was acting for A., the latter was allowed to ask B. in cross-examination what wages he was receiving therefor. Held, that there was nothing so special in the services performed for A. as to render this evidence incompetent, although B.’s usual work was not like that which A. employed him to do, and that, moreover, the question was within the range which the presiding justice might permit on cross-examination.</p>

<p>Loan of Money at high Rate of Interest — -Statute — Action.</p> <p>The St. of 1888, c. 388, providing that loans of less than one thousand dollars shall be dischargeable by the debtor upon payment of the principal sum actually borrowed and interest at the rate of eighteen per cent, does not authorize a recovery back of any sum which has been paid in excess thereof, nor make such payment illegal.</p>

<p>Personal Injuries — Negligence — Collision of Wagon and Street Caí-Instructions to Jury.</p> <p>In an action for personal injuries it appeared that the plaintiff was driving with the nigh wheels of his wagon in a rail of one of the defendant’s tracks. There was space enough to drive on the outside without danger of collision. The evidence was contradictory whether he attempted to get out of the rail or drove straight ahead till the wagon and car collided. His view of the car was unobstructed, and there was nothing to prevent him from turning out. Held, that the driver of the ear had a right to assume that the plaintiff would turn out seasonably, and that the jury were rightly instructed that, when the driver became aware that the plaintiff was not going to turn out, it was his duty to do what he reasonably could to avoid a collision ; that the plaintiff could not recover if the accident was due to his own negligence; and that if he was where he ought not to have been, but was not negligent in being there, the driver was bound to do what he reasonably could to prevent injury to him.</p>

<p>Writ of Entry — Deed — Boundary — Evidence.</p> <p>The original owner of land afterwards owned in two separate parcels by A. and B. conveyed, in 1792, to B.’s predecessor in title a “ tract of marsh land ” bounded “ northwardly on said C. upland, a ditch dividing said marsh from said upland ”; and in 1803 he conveyed to A.’s predecessor in title “ a certain piece of upland ” bounded “ southerly on marsh land, ... a ditch dividing said upland from said marsh land.” The ditch in fact did not exactly follow the line of demarcation between the marsh and upland, which line was curved inward towards the upland somewhat in the form of a bow, but it was a straight cut across, like the string of the bow, so that some marsh land was between the ditch and such line of demarcation. At the trial of a writ of entry by A. against B. to recover this piece of marsh land, several witnesses who were familiar with the locus were allowed to testify that the line of the ditch was straight; and that the ditch was apparently the dividing line between the respective lands of A. and B. Held, that the evidence was properly admitted; and that if upon the deeds themselves the true boundary line was doubtful, the evidence warranted a ■ finding that such boundary was the ditch.</p>

<p>Personal Injuries — Elevator — Negligence — Action.</p> <p>A., a boy fifteen years old, who was familiar with the elevator and with the back stairs and halls of an apartment hotel, where, during several months, he had been accustomed to deliver goods to various tenants, went to the hotel with goods to be delivered to certain tenants. The elevator was in two parts, the upper part being a passenger elevator, with an opening into it from the front halls only, and the lower part being a freight box, with no door, but with open-in gs-in to it from both halls; and there was a sliding door to the elevator well which opened on the inside. A. entered the freight box of the elevator as usual, and told the elevator boy that he wanted to stop at certain suites, the first of which was on the fourth floor and the others above that. On the first floor a passenger got into the passenger part of the elevator. When the first suite was reached, the elevator boy stopped the elevator, and told A. that was the floor he wanted. A. opened the door to the elevator well, stepped into the back hall, leaving the goods for the other suites in the freight box, and leaving the door into the elevator well open, and delivered his goods at the back door of the first suite, which was about five feet from the elevator well. The elevator boy went up with the elevator, carrying the passenger. The hall was dark, but when the back door of the suite was open it was light in the hall, and A. could see. A. went back, and, assuming that the elevator was still there, but without looking to see, stepped through the open door and fell-to the bottom of the well, and was injured. A. knew that the elevator boy could not shut the door without raising the elevator and getting from the passenger part of it into the freight box and then lowering it to the door. Held, that A. could not maintain an action for his injury against the owner of the hotel.</p>

<p>Personal Injuries — Due Care — Negligence — Employers’ Liability Act — “ Ways, Works, or Machinery ” — Obvious Peril — Assumption of Risk — Law and Fact — Notice.</p> <p>In an action for personal injuries occasioned to the plaintiff, while in the defendant's employ, by the falling upon him of a bank of earth, it appeared that the bank, which was on the land of third person, was composed of hard-pan and clay with some sand, and was from eight to ten feet high and fifteen or twenty feet long; that the plaintiff, who was a man of middle age, had been in this country but a short time, and had worked in the open air in Ireland, digging with a spade or shovel, but had never used a pick; that when he was first employed by the defendant he was set to work digging up earth and picking up roots; and that, after doing this work for a few days, he was set to work on the bank, and told by the defendant’s superintendent to go down to the bottom, get into the bank, and undermine it, and that the superintendent “ would get on it with bars.” The latter testified that “ they always begin by picking at the bottom of the bank, and when the proper depth is reached they pry the top over with bars, and it falls over.” The plaintiff testified that, after he had been at work for about ten minutes, the superintendent left; that he continued to work for some time, when the bank fell and broke his leg; that “ he saw no one watching the bank; that no one told him of any danger or risk about the bank; that he thought there was no danger or risk about the bank; and he knew nothing at all about it, only just to do what he was told ”; and that when he went to work he noticed that the bank “ leaned out a little at the top.” The superintendent testified that “ a bank with sand in it is more liable to fall than a clay bank, and he meant to guard against it; that when he left the bank he intended to come back very soon; and that he understood all the time he was looking after the bank and the men.” In answer to the question, “ Is it not true that a bank, before it gives way, gives some indication that it is going to fall 7 ” he said, “ Not certainly.” Held, that the question whether the plaintiff was in the exercise of due care was rightly submitted to the jury.</p> <p>At the trial of an action under the St. 1887, c. 270, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the falling upon him of a bank of earth, which he was engaged in undermining by direction of the defendant’s superintendent, the second count of the declaration being upon § 1, cl. 1, of the statute, which gives a right of action for injuries caused by the negligence “ of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works, or machinery were in proper condition,” the defendant is not entitled to a ruling that “ the plaintiff cannot recover under the second count of his declaration, as there was no evidence that there was any negligence on the part of the defendant.”</p> <p>The liability of a bank of earth, upon which laborers employed by a person are at work, to fall when undermined if not shored up, is not a “ defect in the condition of the ways, works, or machinery connected with or used in the business of the employer,” within the meaning of St. 1887, c. 270, § 1, cl. 1, when the work on the bank is simply the levelling of it for the purpose of grading the land of a third person.</p> <p>At the trial of an action under St. 1887, c. 270, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the falling upon him of a bank of earth, which he was engaged in undermining by direction of the defendant’s superintendent, the third count of the declaration, under § 1, cl. 2, of the statute, being based upon the negligence of the superintendent, the defendant is not entitled to a ruling that “the plaintiff cannot recover under the third count, as there was no evidence of the negligence of the defendant.”</p> <p>In an action for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the falling upon him of a bank of earth, which he was engaged in undermining by direction of the defendant’s superintendent, who had left the spot and was absent at the time of the accident, the superintendent testified that the way the bank was to be taken down was by picking at the bottom until a proper depth was reached, and then prying over the top with bars; that he knew there was sand in the bank, and that such a bank is more liable to fall than a clay bank; that he meant to guard against it; and that when he left he intended to come back very soon. He also testified that he was gone only fifteen minutes, but there was evidence that he was gone a much longer time. There was also evidence that the plaintiff knew that the top of the bank was to be pried over with bars; that he did not know that there was danger of the bank falling by the force of gravitation ; and that he had had no experience in work of this kind. There was further evidence, which was contradicted, that some of the plaintiff’s fellow servants got upon the bank and attempted to pry it over just before it fell; and that the plaintiff remained below, knowing this fact. Held, that the defendant was not entitled to a ruling that, “ upon the whole evidence, there was no negligence of the superintendent in failing to warn, or instruct, or notify the plaintiff of the danger of the bank falling, as the peril was obvious.” If an inexperienced workman, who is engaged in undermining a bank of earth, continues to work there after his employer’s superintendent, whose duty it is to watch the bank and to warn him of the danger of its falling, has left the place with the intention of returning soon, and the workman is injured before his return by the falling of the bank upon him, it cannot be ruled, in an action against his employer for the injury, that he assumed the risk attendant upon, the superintendent’s absence, but the question is for the jury.</p> <p>If an inexperienced workman, while engaged in undermining a bank of earth, is injured by the falling of the bank upon him during the temporary absence of his employer’s superintendent, whose duty it is to watch the bank and to warn him of the danger of its falling, it is a question for the jury, in an action under St. 1887, c. 270, against his employer for the injury, whether it was not negligence in the superintendent, who testified that he understood all the time that he was looking after the bank and the men, to allow the plaintiff to work under the bank without shoring up the top of it, or stationing some one to give warning.</p> <p>A notice to an employer, by a person injured while in his employ, stating the time and place of the injury and the cause of it as “ the falling of a bank of earth,” which he was engaged in undermining by direction of the employer’s superintendent, upon whose alleged negligence an action for the injury is based, is sufficient under the St. 1887, c. 270, without referring to the superintendent or to his conduct.</p>

<p>Two motions for a new trial of two actions of tort tried together, on the ground of alleged misconduct of one of the jurors and one of the defendants during the trial. The motions were heard together in the Superior Court, before Aldrich, J., who overruled them ; and the plaintiffs alleged exceptions. The facts appear in the opinion.</p>

<p>Libel for divorce, filed on November 3, 1891, and amended on April 8, 1892, on the ground of desertion. Hearing in the Superior Court, before Corcoran, J., who dismissed the libel; and the libellant alleged exceptions. The facts appear in the opinion.</p>

<p>Loss of Life — Employers’ Liability Act — “ Ways” — Action.</p> <p>A track in the yard of A., owned, maintained, and repaired by him, and used by a railroad under a contract with him for the delivery of freight in the yard, is no part of the railroad’s “ ways,” under the employers’ liability act, St. 1887, c. 270, §§ 1,2; and if an employee of the railroad is killed by a defect in it, an action , will not lie against the railroad on that statute. Knowlton, J. dissenting.</p>

<p>Assumpsit— Covenant — Damages — Active Duties attached to Land — Demurrer.</p> <p>A declaration alleged that there was in the plaintiff town an ancient highway which crossed a stream by a bridge, which way and bridge the town was bound to keep in repair; that the owners of land by a dam below raised the water into a pond, which raised the water back over the highway and bridge and made them impassable; that the owners substituted a new filling of earth, and built at the sides thereof a railing and a new bridge over the pond, the same being done by an arrangement with the plaintiff town and at the expense of the owners; that the same were to be maintained and kept in repair by the owners and their successors at their own cost, and free from expense to the town, forever; that the new work had long been a part of the necessary public highway which the town was bound to maintain and keep in repair; that the burden of maintaining the same ran with the land, etc.; that the owners made a covenant with the town, which ran with the same, that they would maintain the same, and had from time to time done so; that the same by the defendant’s neglect became out of repair, and there was a necessity to rebuild the bridge, which the plaintiff requested the defendant to do, and the defendant refused so to do ; that the plaintiff made the repairs and rebuilt the bridge for a certain sum, which it had demanded of the defendant, but no part of it had been paid to the plaintiff, and the defend" ant owed the plaintiff said sum and interest. Held, on demurrer, that the declaration was sufficient.</p>

Tort, for perspnal injuries occasioned to the plaintiff by reason of an alleged defect of uneven ice and snow upon the sidewalk of a street of the defendant city. At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

Complaint, for unlawfully exposing intoxicating liquors for sale on November 20, 1892. Trial in the Superior Court, before Sherman, J., who overruled the defendant’s plea of former acquittal, and reported the case for the determination of this court. If the judge erred in not sustaining the plea of former acquittal, the verdict was to be set aside; otherwise, it was to stand.

<p>Acceptance of Payment of Debt after Suit brought — Appropriation — Interest — Costs.</p> <p>A lessor, having received payment in full of his debt for rent, cannot have a judgment for interest by way of damages for failure to pay when the rent became due, and it is immaterial that the payment was after suit brought.</p> <p>Where the rights of parties depend, not on a tender, but on the acceptance of a payment which discharged the cause of action, the plaintiff cannot recover costs, even though the payment is made after suit brought.</p>

<p>Motions to Dismiss and in Arrest of Judgment— Continuance of Complaint for more than Ten Days— Consent of Defendant.</p> <p>On a complaint to a police court for unlawfully exposing and keeping intoxicating liquors for sale, the defendant moved in the Superior Court to dismiss, and in arrest of judgment, because it appeared in the record that the trial was continued by the police court for more than ten days without the consent of the defendant. It appeared that the police court had jurisdiction, that it was a court competent to pass the order of adjournment with the defendant’s consent, that the order was apparently for his benefit, that it was passed in his presence and without objection on his part, and that he recognized for his appearance at the time fixed; and there was nothing to show that he did not consent to the adjournment. Held, that his consent was to be presumed, and that the omission to set it forth in terms in the order did not render the proceedings invalid.</p>

<p>Sewer — Order of City Council — Adjudication of Necessity — Unrecorded Waiver of Damages — Certiorari.</p> <p>On a complaint under St. 1890, c. 132, against the defendant, for maintaining a building not connected with" a public sewer, although required to connect it by the board of health, it appeared that the city council, under its charter, ordered the committee on drainage “to extend Section 3 of the Eastern Intercepting Sewer from its present terminus through C. and New C. Streets to W. Avenue ”; that the sewer was laid through private land below the point where it passed the defendant’s house, without other authority than the statute and the landowners’ unrecorded waiver under seal of damages, and that it was laid through the defendant’s land at a place above his own house, and the defendant neither had licensed it nor had been paid for it. Held, that the order was sufficiently definite, and implied an adjudication of necessity; that the sewer was lawful below the defendant’s house, and that it was immaterial that the waiver was not recorded; that if the sewer was unlawful where it crossed the land above, it was not made unlawful throughout; that the failure to keep the plan of the sewer in the city clerk’s office had no bearing on the proceedings; and that a short answer to most of the defendant’s objections was that they could be taken only by certiorari.</p>

Contract, upon a promissory note for $500, dated November 12, 1884, and made payable on demand to the order of the plaintiff. Trial in the Superior Court without a jury, before Blodgett, J., who found for the plaintiff for the full amount of the note with interest; and the defendant alleged exceptions. The facts appear in the opinion.

<p>Bastardy Process — Declarations of Third Party — Photograph.</p> <p>If at the trial of a bastardy process the fact in issue is the paternity of the child, the defendant cannot put in evidence, to establish it, declarations of a third party made in the absence of the plaintiff, that another person is the father.</p> <p>At the trial of a bastardy process the defendant cannot offer in evidence a photograph of a third party, deceased, in order that the jury may judge whether the plaintiff’s bastard child resembles the third party or the defendant, if the circumstances under which the photograph is offered are not disclosed.</p>

<p>Beneficiary Association — Right of Executrix to sue — Defence not set up in Answei — Insurable Interest — Valid Contract — Mortuary Call — Burden of Proof— Estoppel — Condition — Receipt — Forfeiture of Policy — Waiver — Presumption as to duly posted Letter — Acceptance and Retention of Money on Terms.</p> <p>If a policy of a benefit association issued upon the life of a member and payable to A., who is not within the classes of persons who may be beneficiaries, provides that, if A. should not he living at the time of the .member’s death, then the payment shall be made to his heirs at law, the executrix of the member may maintain an action for the benefit of the heirs at law.</p> <p>In an action on a policy of a benefit association issued upon the life of a member and payable to A., his daughter in law, the defence that A. had no insurable in-, terest in the life of the member, that all the premiums were paid by A., and that the contract was void as a wagering contract, is not open, if it is not set up in the answer. The fact that a policy of a benefit association was made for the benefit of a person who could not lawfully be a beneficiary, and that the premiums were paid by such person, will not invalidate the policy provided it was not intended to be merely a wagering contract.</p> <p>Where a failure to pay a mortuary call is set up in defence to an action on such a policy, the burden of proof is on the defendant to show that such call was legally made.</p> <p>The payment by the member of a beneficiary association of an assessment which has not been accepted unconditionally, creates no estoppel to deny its validity.</p> <p>If a benefit association receives and keeps money which is sent to it in payment of a call, but seeks to make its acceptance conditional, it must see to it that notice to that effect actually reaches the payor, and if the benefit association resorts to the mail for that purpose it will be responsible for any miscarriage of the notice in the mail.</p> <p>In the absence of any stipulation in the contract between the assured and a beneficiary association, or in the rules of the association, or of any express or implied request on the part of the assured, or his agents, or those acting for him, there is no rule of law under which the assured can be held to be bound by the association’s act of imposing a condition upon its acceptance and retention of money paid by the assured in answer to a call made by the association, unless notice of such condition is actually brought home to the assured, or to those acting for him.</p>

<p>Tort, for an assault and battery. At the trial in the Superior Court, before Braley, J., the jury returned a verdict •against the defendant, who alleged exceptions. The facts appear in the opinion.</p>

Complaint, charging the defendant with maintaining a liquor nuisance in Lynn, between February 1, 1893, and March 31, 1893. Trial in the Superior Court, before Sherman, J., who reported the case, at the defendant’s request, for the determination of this court, in substance as follows.

<p>Complaint, alleging that the defendant “ unlawfully did keep for sale intoxicating liquors with intent unlawfully to sell the same in this Commonwealth.” At the trial in the Superior Court, before Bishop, J., the defendant asked for a ruling that, upon all the evidence in the case, the jury would not be warranted in finding the defendant guilty of the offence charged in the complaint. The judge declined so to rule, and the defendant excepted. The defendant asked for an instruction to the jury, which the judge gave with a qualification, and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions. The material facts appear in the opinion.</p>

<p>Assessment of Damages for the Taking of encumbered Flats — Evidence.</p> <p>On a petition for the assessment of damages caused by the respondent’s taking of flats belonging to the petitioner, testimony of the latter as to “ the best plan to develop the flats taken, to get the most out of them,” is competent as to unencumbered flats, and not necessarily incompetent as to encumbered.</p>

<p>Tort, for' breaking and entering the plaintiff’s close in Marblehead, and tearing down a structure erected thereon. The answer was a general denial. At the trial in the Superior Court, without a jury, before HopJcins, J., there was evidence tending to show that the plaintiff and defendant owned adjoining premises, and that an open space about three feet wide extended between the houses on the two premises, and a door opened from the plaintiff’s house into this space. The trespass alleged was the entry by the defendant upon this space, and the demolition of a covered structure extending from this door to an outbuilding at the end of the plaintiff’s house. The plaintiff derived her title through her husband, Edward A. Lawrence, who took possession of the premises in 1869, finding them enclosed as at the date of the writ. Shortly after taking possession, he built a covered way over the entire breadth of the space in question between the houses, and extending from the door above mentioned to the outbuilding. Complaint having been made by Susan Gray, the defendant’s predecessor in title, the structure was made narrower by Lawrence. Later, an interview took place between Lawrence and Mrs. Gray, at which they alone were present. No evidence was given as to what was said at this interview, and both Lawrence and Mrs. Gray are dead. Subsequently, in 1876, Lawrence executed the following paper, which was delivered to the defendant for Mrs. Gray and duly recorded: “ Having been allowed the privilege of building a covered passageway in a northwest and southeast direction on the land belonging to Mrs. Susan Gray, between her house and the house of the Rev. Edward A. Lawrence, I do hereby agree and do bind myself and heirs and assigns to pa annual rent of one dollar to said Mrs. Gray or owner of said property, and furthermore do agree to remove said covered passageway on the receipt of notice so to do from said Mrs. Gray or the owner of said property, she giving me, or my heirs or assigns, fourteen days’ notice, and I now declare that I have no right claim or easement whatever in, upon, or under any part of the land on which said passageway is built.” In accordance with its terms, Lawrence made the payment provided for until the death of Mrs. Gray in 1880, but after her death refused to make any payment. Payment was demanded by the defendant, but refused. It was claimed by the plaintiff that this agreement was executed by Lawrence without consideration, under a misapprehension as to his rights.</p> <p>The defendant was asked, on cross-examination, if he ever had any talk with Lawrence in which he refused to pay rent. The defendant answered, “Yes, sir; I told him of this agreement.” He was also asked what conversation he had with Lawrence at the time of his refusal to pay rent. Objection was made by the defendant’s counsel, and the plaintiff’s counsel stated that his contention was that the paper was signed under a misapprehension altogether on Lawrence^s part as to his rights, and he wanted to show what Lawrence said about it afterwards. The judge excluded the question and evidence, and the plaintiff excepted.</p> <p>Mrs. Gray died in 1880, and one Brown was made her administrator. Brown died before the day of the trial, and the plaintiff offered in evidence a receipt dated October 15, 1881, which it was admitted was in the handwriting of Brown, signed by Lawrence, and found among the papers of Brown relating to the estate of Mrs. Gray. The receipt was as follows: “ Rec’d of W. B. Brown, adm’r Est. Susan Gray, one dollar paid him by me erroneously for rent of land.” The plaintiff offered it as evidence of an admission that the payment of rent by Lawrence under the paper executed by him was erroneous, and a disclaimer of right by Mrs. Gray’s estate. The judge excluded the paper, and the plaintiff excepted.</p> <p>In 1883, demand was made by the defendant for the removal of the covered way under the agreement. This was refused, but the demand was not insisted upon. In 1890 the demand was renewed, and, on the plaintiff’s refusal to comply with it, the defendant entered on the premises and tore down the structure.</p> <p>The judge found for the defendant, accompanying his decision with the following memoranda:</p> <p>“ 1. The pleadings do not require a determination, upon the face of the earth, of the boundary line between the estate of the parties; but</p> <p>“ 2. The plaintiff proceeds upon the proposition that the act of the defendant, of which she complains, was committed upon her land, that her close was broken and entered upon; so that</p> <p>“ 3. The burden of proof was upon her to establish the boundary line so as to include within it the act of the defendant. I am not satisfied, by a fair preponderance of the evidence, that the defendant broke and entered the close of the plaintiff, and I find for the defendant.”</p> <p>The plaintiff alleged exceptions.</p>

<p>Unrepealed Statute — Motion in Arrest of Judgment — Motion to Quash.</p> <p>Section 9 of St. 1885, c. 313, establishing a board of registration in pharmacy, is not repealed by St. 1887, c. 267, which repeals § 3 of the former act.</p> <p>An appeal lies from a judgment overruling a motion in arrest of judgment before final judgment. Such an appeal brings up only the questions of law raised by the motion, and does not open other questions raised by a motion to quash not appealed from.</p>

<p>Implements of Gaming — Testimony of Expert — Room used as common Gambling Place.</p> <p>Any article, utensil, or appliance ordinarily used in playing an unlawful game, although not indispensable, is an implement of gaming within the meaning of Pub. Sts. c. 99, § 10, as amended by St. 1887, c. 448, § 2.</p> <p>On a complaint for being present in a place resorted to for gaming and where gambling implements were found, a witness may testify to his special knowledge derived from playing the game more than one thousand times during a period of ten years, although the last occasion was more than a year before the trial, and there had since been changes and alterations in the game of which the witness knew only by hearsay; and even if he testified on the strength of information which he had not personally verified, such testimony might be admissible. A room, on the door of which is the name of a club, which contains a blackboard devoted to “ policy,” and in which all business stops whenever an officer appears, and in which on his visits are found the implements ordinarily used in playing policy, may well be found to be a common gambling place.</p>

<p>Complaint, charging the defendant with violating the provisions of Pub. Sts. c. 69, § 5, by hoarding a ship without obtaining leave, as therein required.*</p> <p>At the trial in the Superior Court, before Bond. J., there was evidence tending to show that the ship was unable to obtain a place at a wharf as desired, and was obliged to anchor in the harbor, that the captain was on board and in charge of the vessel, that the defendant was not a pilot or public officer, and that he had no written leave from any owner or agent of the vessel to go on board.</p> <p>While the vessel was at anchor in the harbor, the defendant went on board, and, before doing any business, approached the captain and obtained permission from him to remain on board. The defendant contended, and asked the judge to rule, that, if the defendant boarded the vessel intending, before he engaged in any business on board, to obtain leave of the captain to remain,' and he did obtain such leave before he engaged in any business on board, he was not guilty of any violation of the statute.</p> <p>The judge declined so to rule, and instructed the jury that the statute required a person to obtain leave of the master or person in charge of the vessel before going on board, and that it would be a violation of the statute if the defendant boarded the vessel before it was made fast to the wharf without first obtaining leave of the master or person in charge.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Contract, to recover $1,499.99 and interest, the price of eighteen car-loads of bark, sold by the plaintiff to the defendants between December 3, 1888, and January 15, 1889.</p> <p>At the trial in the Superior Court, before Fessenden, J., it was admitted by the defendants that the bark was sold and delivered by the plaintiff to the defendants; that the price named in the declaration was the price which the defendants agreed to pay, and that the measurements therein set forth were correct. The case was tried on the defendants’ answer of payment, declaration in set-off for $5,155.24, money had and received by the plaintiff to the defendants’ use, and plea of accord and satisfaction.</p> <p>The declaration in set-off was not filed until the end of the first day of the trial, and was allowed by the judge, on the agreement of parties that, if the verdict should be for the defendants on the declaration in set-off, the verdict should not be for any balance which the jury might find was due from the plaintiff to the defendants. The judge instructed the jury : “It is agreed between the counsel that there shall be no recovery by the defendants against the plaintiff for any surplus over and above the amount that is claimed by him, so that you will not trouble yourself with any figures with reference to any surplus. ... If you find either that there was a payment, or that there was an accord and satisfaction, or that the plaintiff had and received the defendants’ money, under the rules that I have given you, then you will find a verdict for the defendants, providing that you find that the amount that the plaintiff received was equal to the amount of his bill. If the defendants have failed to satisfy you by a fair preponderance of the evidence that there was a payment, or an accord and satisfaction, or that the plaintiff had and received the defendants’ money, then your verdict will be for the plaintiff.” No objection was made or exception taken to the foregoing instructions.</p> <p>The jury returned a verdict for the defendants.</p> <p>When the verdict was returned, both counsel being present, the counsel for the plaintiff suggested, in substance, that, owing to the agreement above stated in reference to the declaration in set-off, there was nothing to indicate whether the jury had found a verdict on that issue, and that knowledge of the finding, if any, on this point was a matter of importance to the plaintiff in case of any future action against him by the defendants, and requested the judge to interrogate the jury on this point.</p> <p>The judge then asked the jury the following questions, to which the foreman gave the following answers: “ Q. On which of the three issues did the jury find for the defendant, payment, accord and satisfaction, or set-off? . A. On no particular one, — on all. Q. Did you find on the set-off? A. Not on that alone.” The jury assented to the answers.</p> <p>The plaintiff’s counsel then suggested that the jury had not agreed on a verdict on any one of the issues of the case; but the judge put no further questions to the jury, and, against the objection of the plaintiff’s counsel, directed the clerk to make the following memorandum entry on the docket: “ In reply to a question by the court, the jury stated that they did not find on the defendants’ declaration in set-off alone.” The verdict for the defendants was received and recorded.</p> <p>The plaintiff duly filed a motion for a new trial on the following grounds : “1. Because the jury did not agree on any verdict for the defendants. 2. Because, if there was a verdict, it was against the evidence and the weight of the evidence. 3. Because, if there was a verdict, the jury did not follow the instructions of the presiding justice in the consideration of the same.”</p> <p>After hearing the parties on the motion for a new trial, the judge found that there was not sufficient evidence to sustain a verdict for the defendants on the issues of payment and accord and satisfaction; that there was sufficient evidence to sustain a verdict for the defendants on the declaration in set-off, and that therefore the verdict should stand.</p> <p>At the request of the parties, the judge reported the case for the determination of this court. If the court should be of the opinion that the verdict should stand, then judgment for the ‘defendants was to be entered on the verdict; otherwise, the verdict was to be set aside and a new trial granted.</p>

<p>Petition for a writ of prohibition to restrain a justice of the Municipal Court of the City of Boston from proceeding to hear the application of Walter Sprange, a debtor arrested on mesne process, to take the oath that he did not intend to leave the State. At the hearing, before Lathrop, J., it appeared that Sprange was arrested on October 28, 1893, on a writ in an action of contract, in which the petitioner was plaintiff, and thereupon Sprange duly recognized that he would deliver himself up for examination according to law ; that upon November 16, 1893, Sprange procured from the Municipal Court of the City of Boston a notice addressed to the petitioner setting forth his desire to take oath that he did not intend to leave the State; that upon the following day both Sprange and the petitioner appeared at the time and place specified in the notice, and the examination was duly continued until the 21st of the same month, at ten o’clock in the forenoon, at which last mentioned date the petitioner duly appeared, but Sprange did not appear, and was defaulted; that upon the 24th of the same month Sprange procured from said Municipal Court a second notice addressed to the petitioner setting forth his desire to take the oath that he did not intend to leave the State, and also the oath for the relief of poor debtors; that upon December 4, 1893, at the time and place mentioned in the last named certificate, Sprange duly appeared and stated that he did not desire to take the oath for the relief of poor debtors, but did desire to take the oath that he did not intend to leave the State ; that the petitoner duly appeared by counsel at the time and place mentioned in the last named notice, for the purpose of examining Sprange upon the notice that he desired to take the oath for the relief of poor debtors, and appeared specially, and objected to any examination of Sprange to take oath that he did not intend to leave the State; and that the respondent, as associate justice of said Municipal Court, had sworn Sprange for examination upon his desire to take the oath that he did not intend to leave the State, and was proceeding, against the objection of the petitioner, to take evidence of Sprange concerning his said intention to leave the State.</p> <p>The justice ruled that a writ of prohibition should issue, and reported the case for the determination of the full court. If the ruling was correct, the writ of prohibition was to issue; otherwise, the petition was to be dismissed.</p>

<p>Embezzlement — Motion to quash — Allegations in Indictment — Joint Interest in Savings Bank Deposit.</p> <p>The allegation in an indictment that the defendant had fraudulently converted certain promissory notes current as money to his own use is a sufficient allegation, if one is necessary, that he had not fully performed his trust or kept the money safely, and it is unnecessary to allege a demand for the return of the money.</p> <p>The finding of the jury that of the thousand dollars deposited in a savings bank in the name of A., for the fraudulent conversion of which the defendant was indicted, five hundred dollars was the property of A. and five hundred of B., must be taken as meaning that A. and B. were jointly interested as owners to the extent of five hundred dollars each in the deposit; and it being competent for the jury to find that the money was withdrawn with the consent of A., and that when it was finally given by B. to the defendant it was received as the property of A. and B., to be kept by the defendant for them as their agent or bailee, it is immaterial that the defendant afterwards deposited it in another savings bank, and that the money eventually converted by the defendant did not consist of the identical bills which the defendant had deposited.</p>

<p>Two actions of tort, for the obstruction of an alleged private way in Boston, known as Freeman Street. The cases were tried together in the Superior Court, without a jury, before Blodgett, J., who reported them for the determination of this court, in substance as follows.</p> <p>In 1812 one Jacob Foster acquired title to a tract of land in Dorchester, including the land through which Freeman Street was subsequently laid out, and over which the defendant corporation filed its location as hereinafter set forth.</p> <p>In 1857 this land passed by the will of Jacob Foster to his two sons, Ira and Jacob, as tenants in common.</p> <p>On June 26, 1860, Ira Foster conveyed one undivided half of the westerly part of the land owned by himself and Jacob in common to Jacob.</p> <p>On March 15, 1871, Ira Foster and Jacob Foster conveyed a portion of the easterly part of the land which they had inherited from their father and owned as tenants in common to* Oliver Ditson and John H. Robinson, by a deed which described the westerly boundary of the land as “ a new street, thirty feet wide, called Freeman Street.”</p> <p>On September 2, 1871, Jacob Foster conveyed to the Old Colony and Newport Railway Company a portion of the land previously conveyed to him by his brother on June 26,1860, by a deed which described the land as “ commencing on Freeman Street,” and, among other boundaries, running easterly “to a point on Freeman Street, . . . thence northerly by Freeman Street,” which land was substantially covered by the subsequent location.</p> <p>On October 4, 1871, the Old Colony and Newport Railway Company, of which the defendant was the successor, filed a location, which gave, among other such distances similarly expressed, the distance of the point of intersection of the base line “ with the easterly line of Freeman Street ” from the northerly line of Foster Street; and, in describing the westerly line of the location, mentioned the “ westerly line of Dorchester Avenue,” the “ easterly line of Freeman Street,” and the “ westerly side of Freeman Street ”; and, in describing the easterly line of the location, referred to the “ easterly line of Freeman Street,” and to the “ westerly line of said Freeman Street,” defining the exterior lines of the location as crossing Freeman Street in the same way that they were defined as crossing several other streets not far distant; and at the end of the delineation stated that “ reference is hereby made for a more particular description to a plan herewith filed,* which showed Freeman Street as an existing street, crossing the railroad in the same manner as Dorchester Avenue crossed it.</p> <p>On August 31, 1872, John H. Robinson and Oliver Ditson conveyed to the defendant a portion of the land previously conveyed to them by Ira Foster and Jacob Foster on March 15, 1871, by a deed which described the land as two parcels, each bounded “ westerly by Freeman Street.”</p> <p>In 1878, in accordance with St. 1878, c. 135, the defendant filed a new location containing a description of the base line, westerly line, and easterly line of the location, substantially identical with that contained in the previous location.</p> <p>After the filing of the location in 1871, the railroad company constructed its road, and when the road was constructed the division roadmaster placed planks between the rails where Freeman Street, as indicated on the plan filed with the location, existed, and the planking has been since maintained by the corporation.</p> <p>In 1888 the defendant obstructed the alleged way by posts and gates. The defendant did not station an agent to open and close the gates.</p> <p>Dorchester Avenue, as shown on the plan, was a public way long prior to 1860.</p> <p>In 1878 John H. Robinson was adjudicated a bankrupt, and Charles B. Fox was duly appointed his assignee, and the real and personal estate of Robinson was conveyed to Fox.</p> <p>On June 26, 1878, Fox, as assignee, conveyed the interest of John H. Robinson in the premises on the corner of Foster Street and Freeman Street, between Foster Street and the railroad location, being part of the premises conveyed by Ira Foster and Jacob Foster to John H. Robinson and Oliver Ditson by the deed dated March 15, 1871, to William R. Clark, Jr., in pursuance of an auction sale.</p> <p>On July 10,1878, Clark conveyed one undivided half of the premises to Oliver Ditson, and on the same date John H. Robinson and Elizabeth Robinson, his wife, in her own right, released one half of the premises to Ditson for the purpose of releasing her dower.</p> <p>By the will of Oliver Ditson the above described parcel was left to the plaintiff in the second case for life, and she is in possession of the same.</p> <p>The plaintiffs in the first case, as devisees under the will of Jacob Foster proved on June 14, 1886, own a portion of the land acquired by him from his father and from his brother on Freeman Street.</p> <p>Freeman Street existed as a street before the railroad was built. Foster, Humphreys, and their tenants have used the crossing of the railroad at Freeman Street with horses and vehicles continuously since the railroad was built. The Ditson land has been vacant, and the owners were not shown to have made any actual use of the crossing.</p> <p>The existence of a travelled place at this crossing, and the fact that it was planked, have been known to the railroad company since its road was built.</p> <p>The passageway across the railroad has been made less convenient by the. erection of gates and posts. When the gates are shut, as they are sometimes by the railroad company, the danger of in j ury from passing trains to persons using the way in vehicles is greater than if there were no gates, and the gates were not reasonably required for the safe operation of the railroad.</p> <p>Upon the foregoing facts the judge found for the plaintiff in each case, and assessed damages in the sum of one dollar. If the finding was warranted by the facts, judgment was to be entered for the plaintiff thereon ; otherwise, the finding was to be set aside, and judgment entered for the defendant.</p>

<p>Insolvent Debtor — Evidence•</p> <p>In an action by an assignee in insolvency to recover the value of the insolvent’s stock in trade from the holder of a mortgage upon it, alleged to have been made in fraud of the insolvent laws, the insolvent’s books of account, in his own handwriting, are admissible in evidence; and computations by an expert from the figures furnished by the books are admissible also, in the discretion of the judge.</p> <p>Jn an action by an assignee in insolvency to recover the value of the insolvent’s stock in trade from the holder of a mortgage upon it, alleged to have been made in fraud of the insolvent laws, declarations of the insolvent that he had received full consideration for the mortgage are properly excluded; and evidence of what the defendant had been told by counsel as to his legal right to make the mortgage loan is also properly excluded.</p>

<p>Personal Injuries — Conduct leading Another into Trap — Negligence — A ction.</p> <p>If a person who undertakes to clean a cesspool in the kitchen of a house, after dipping out and carrying away a number of pailfuls, takes everything away, replaces the cover, and goes off, and the tenant of the house, assuming that the work of cleaning the cesspool has been finished, in the course of her work steps upon the cover, which has not been replaced properly, and a. corner of it tips, and she falls into the hole and is injured, she may maintain an action for her injury against such person.</p>

<p>Personal Injuries' — Declaration— Trial.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ, the declaration alleged, in substance, that while the plaintiff was in the process of oiling a machine it suddenly and unexpectedly started into motion; that when shut off for the purpose of oiling it was likely to start; that the defendant knew or ought to have known that it was likely to start; and that the defendant omitted to caution the plaintiff that it was likely to start. At the trial, the case was tried upon the theory, on the plaintiff’s part, that the machine started of itself; and, on the defendant’s part, that it was started by a fellow servant of the plaintiff. Held, that the judge rightly ruled that the plaintiff had the burden of proving that the machine started of itself; that he could not recover unless he proved this; and that, if the jury were unable to decide what caused the machine to start, he was not entitled to recover.</p> <p>In an action for personal injuries occasioned to the plaintiff by the starting of a machine which he was engaged in oiling, while in the defendant’s employ, if the declaration alleges that the machine was likely to start of itself, and did so start, the plaintiff has no ground of exception to a refusal of the judge to instruct the jury as to the defendant’s duty if the machine was liable to start by the acts of some of his employees, on the ground that the question was not open under the declaration.</p>

<p>Personal Injuries — Evidence — Negligence — Master and Servant — Assumption of Risk.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ, by falling down the well of an elevator operated by an engine in a building in process of erection by the defendant, evidence of previous specific acts of negligence on the part of the defendant’s engineer, known to the defendant’s superintendent, is inadmissible to show negligence of the defendant and of his superintendent in setting the plaintiff at work in a place known, or which ought to have been known, by them to be dangerous by reason of the probability of negligent conduct of the engineer.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ, by falling down the well of an elevator operated by an engine in a building in process of erection by the defendant, the judge instructed the jury, at the plaintiff’s request, that if the defendant’s superintendent set the plaintiff at work in a place known by the superintendent to be dangerous without warning him of the danger, that would constitute such negligence as would enable the plaintiff to recover, if he was in the exercise of due care; and added the qualification, “that, if the danger was an obvious one or one which the plaintiff knew and could see just as well as the men themselves, and it was not concealed, was not hidden, but was something that was incidental to this kind of work, and might naturally happen in working elevators, then it is a risk or hazard which he voluntarily assumed.” Held, that the plaintiff had no ground of exception.</p>

<p>Contract, upon an account annexed, to recover a balance due under a written contract for work done in underpinning the walls of two stores on Washington Street, in Boston, and for certain extra work. Writ dated January 13, 1891. Trial in the Superior Court, before Hichardson, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The contract under which the work in question was done provided that “ if the work is not fully completed at the end of twenty-four days, as stipulated below,” the plaintiffs agreed to forfeit to the defendants “ the sum of twenty-five dollars for each and every day beyond the time named ” ; that the balance sued for, after certain payments, was to be payable “ in thirty-three days after the full completion of the contract”; and in the specifications annexed to the contract, that “ the contractor is to assume all responsibility for damage to persons, property, or estates occasioned by reason of his work.” It was admitted that the work under the contract began on September 7, 1885; and that the twenty-four working days agreed upon for the performance of the same expired on October 3, 1885. There was evidence tending to show that a certain part of the work was done over again from October 19 to 22,1885, which was the last work done upon the premises by the plaintiffs; that, after the plaintiffs had ceased working, the defendants employed masons to examine the work of the plaintiffs ; and that these masons shored up a portion of the front of the premises on Washington Street, and did certain work upon the front walls of the same, from November 5 to 15, 1885. At various times during the entire work, from September 7 to November 15, 1885, a deputy inspector of the city of Boston inspected the same.</p> <p>In November and December, 1885, and January, 1886, actions of tort were commenced by one Zinn, who was a tenant of one of the stores, against the plaintiffs, the defendants, and his lessor, William H. Allen, respectively, for damages alleged by him to have been inflicted upon his estate and business by the plaintiffs while doing their work under the contract, and in January, 1886; and Allen sued the defendants for the damages done his leasehold estate in the same store by the same work of the plaintiffs under the contract. The actions brought by Zinn were settled by the present plaintiffs in January, 1891, and prior to the time when the present action was brought. The action of Allen against these defendants was still pending at the time of the present trial.</p> <p>Upon the foregoing, which was all the evidence introduced bearing upon the question of interest, the defendants requested the judge to instruct the jury that, by the terms of the contract, interest could not commence until thirty-three days after “ the full completion of the contract ”; that the contract could not be held to have been completed fully while said actions were pending or unsettled; and that in no event could interest be allowed prior to the date of the writ in the present action.</p> <p>The judge declined so to rule, and instructed the jury that interest should be computed on the amount due under the contract from and after the expiration of thirty-three days from the substantial practical completion of the work under the contract; and that the mere pendency of said actions did not prevent the plaintiffs’ recovery of interest, if in other respects they were entitled to recover it. The defendants excepted.</p> <p>The judge also gave full instructions as to what would be a full or substantial completion of the contract, or of the work under the same, and also upon the clause in the contract relating to liquidated damages; and instructed the jury that, if the work under the contract was not substantially performed upon the expiration of twenty-four working days from the time the work commenced, they should deduct from the contract price twenty-five dollars per day for each and every day until the contract was substantially completed.</p> <p>No request was made for a special finding before the jury retired. Upon their return with the verdict, which was for the plaintiffs without any deduction, the judge, at the request of the defendants, neither the plaintiff nor his counsel being present, inquired of the jury at what date, if at all, they had found that the work under the contract was substantially completed, and from what, date they had computed interest. The foreman hesitating to answer, another of the jurors said-that they* had found that the work was substantially completed on November 15, 1885, and that they had reckoned interest from December 18, 1885; but another of the jurors, then addressing the court, said that their verdict was the result of a compromise. This was all that was said by any of the jurors.</p> <p>The defendants thereupon filed a motion for a new trial, at the hearing upon which motion they requested the judge to rule as follows: “ The twenty-four working days under the contract having expired October 3,1885, and no waiver as to the provision regarding liquidated damages having been proven, and the jury, in answer to an inquiry by the court, having stated that the contract, or work required of the plaintiffs under the same, was not substantially performed or completed until November 15, 1885, the defendants were in law entitled to liquidated damages for the intervening period under the said contract of twenty-five dollars per day, and, the jury having failed to make this reduction, the defendants are in law entitled to have a deduction of that amount from the verdict, or to a new trial.”</p> <p>The defendants also contended that they were entitled to a deduction from the verdict of liquidated damages for at least sixteen days, during the period from October 3 to October 22, 1885, or to a new trial.</p> <p>The judge overruled the motion; and the defendants alleged exceptions.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant’s servants. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It was agreed that the defendant was a common carrier of passengers and operating a street railway; that it had a lawful location upon Beach Street, in Lynn, and a proper and legal authority to establish in and upon Beach Street an overhead or trolley system of electric power, and to operate its cars by that system ; that Beach Street was a legally located public way; and that the telegraph and telephone poles therein were located and maintained under lawful authority.</p> <p>The plaintiff testified that, on August 11, 1889, he was riding along Beach Street with his daughter in a top buggy drawn by a single horse; that the carriage and harness were both new and in good repair; that his horse was about eleven years of age, very gentle, well broken and easily controlled; that he had. owned it six or seven years, and it had never been frightened \ before by the cars or otherwise, and had been customarily driven by himself, his wife, and his daughters; that the horse had, at least on two occasions before the date of the accident, seen several electric cars in motion in Brookline and Brighton while the plaintiff was driving it, passing very near to them, and had heard the bell rung and the noise made by the motors of these electric cars; that the horse was not frightened at the cars, and gave him no trouble whatever in passing them, but was perfectly calm in their presence; -that on the day of the accident the plaintiff started from his home in Woburn to go to Nahant; that they had travelled about thirteen miles ; that the day was warm ; that when they arrived at Beach Street, in Lynn, the plaintiff’s daughter called his attention to the fact that there was an electric road running through the street upon which they were about to enter; and that he was acquainted in a general way with the width of Beach Street.</p> <p>On cross-examination, he testified that, after entering the street, and just before the accident, his daughter called his attention to the fact that there were no persons upon the street, and that it was unusually quiet; that he saw no person on the street attempting to cross the same up to the time of the accident; that there was no street crossing Beach Street above or below the place of the accident for about three hundred feet on either side; that after entering upon Beach Street his attention was called to the fact of an approaching car; that he was riding on the right hand side of the street with his reins in both hands; that observing a telegraph pole upon the side of the street about twenty or thirty feet distant, and observing that the street was a little narrow, he slackened the pace of his horse and tried to stop it; and that he was going at a jog, perhaps four miles an hour, when he saw the car.</p> <p>. The plaintiff further testified as follows: “ The car approached me. I kept in motion till we got, I should think, some one hundred and fifty feet away. The car kept in motion. I kept in motion till I saw my horse arch up its neck a little, and I said, ‘ I wonder what the matter is,’ and I listened and I heard a noise that I had never heard before on an electric car, — more buzzing. It was a buzzing noise apparently down near the ground under the car, it appeared to me, and also the clanging of the gong. I wondered what they were beating this gong for. I was not on the track, but they made a great noise with the gong and a great noise with the motor. I saw a man I supposed was the motorman. There was one man on front, and whether there was more than one I could not say. This man could not help seeing me, because we were right on a line with each other. The nearer the car came, the noise grew more sharp and acute, until I found that my horse was frightened. I pulled harder, but it began dancing and springing, and, of course, I expected they would stop the car, but they did not, and I did the best I could until the horse jumped, and finally struck this telegraph post with the shaft. I should say the car was seventy-five or one hundred feet away from me, I should think that distance. I was in a bad spot. I should say I was twenty feet away from that pole when the horse became frightened and made the shying. I don’t think they stopped it (the gong) from the time when my horse first took fright, and it rung in my ears as long as I had my senses. The first spring of the horse broke off my right shaft or whiffletree and crossbar and tug on the right side. I saw the shaft hanging, and I knew by the crash that there must be two pieces of wood broken there, but I had n’t any time to make any examination, of course, and braced myself against that to pull, and I held the horse, of course expecting that the car would stop. I expected relief. Then the horse pulled me the second time, pulled me from the right seat down on the dasher, struck my abdomen, bent the dasher over, and I found my chin on the whiffletree. That is theTast that I knew.”</p> <p>He also testified that he knew of no occasion for sounding the gong, except his presence there; that he could not pull the horse off from the pole when it became frightened; that the bell and the noise of the hissing were very loud; and that the car did not stop, but kept the noise going, and continued on.</p> <p>The plaintiff’s evidence was corroborated, in substance, by that of his daughter, who also testified that, when the shaft of the carriage struck the telegraph pole and was crushed, the plaintiff was pulled violently from his seat on to the dasher; and that he regained his seat, and was pulled off again.</p> <p>Mrs. Tufts, a witness for the plaintiff, testified that she was sitting at a front window in her house on Beach Street, where she had lived for five years, on the line of the electric road, about three hundred feet from the place of the accident; that at the time of the accident she heard a loud clanging of the gong on the car, and the buzzing of the motor; that it was an unusual noise and drew her attention; that in consequence she spoke to a third person, who immediately ascertained that an accident had happened; and that this noise continued several seconds.</p> <p>Charles E. Welch and John R. Fay, called as witnesses for the defendant, testified that they were returning from the beach, and had not quite reached the telegraph pole when the plaintiff’s carriage collided with it; that they did not notice any ringing of the bell on the electric car; that they saw the plaintiff’s horse approaching, and it came along at a slow trot until within twenty feet of the telegraph pole, and from eight to twelve feet of the car, when it suddenly made a shy to the left towards the car, which was apparently checked by the plaintiff; • that it then made a violent shy to the right, and collided with the pole while the car was passing; and that the shy to the left, when about ten feet from the car, was the first indication of fright on the part of the horse that either of them saw.</p> <p>The motorman of .the car testified that he rang the bell only three times, and not after he was within fifty feet of the plaintiff’s horse; that up to the time that the horse passed beyond his observation, without turning, he saw no signs of fright; that he was standing on the front platform, with one hand upon the controlling lever, and the other hand upon the brake of the car; that there were a lot of children in the street, that this was a very bad place for children; that they used to come out and run back and forth from one side to the other, to see how many times they could go across before the car reached them; and that there were children there on this occasion.</p> <p>The conductor testified that he was collecting fares on the running board of the car, which was an open car, on the opposite side from the horse and carriage; that he had passengers standing between the seats; and that he did not see the horse and carriage until after the ear stopped, some fifty feet beyond the carriage.</p> <p>The defendant also introduced evidence, which was uncontradicted, that the defendant’s rules forbade reversing the power at all; that the car in question began running on Beach Street, from Central Square, Lynn, to the beach, about five weeks prior to the accident; that it was a new car, and the only car then running, or that had ever run, on that line; that the motor was a new Thomson-Houston motor, manufactured in Lynn, the only kind of a motor then in use in Lynn, and the only kind up to that time and for some time thereafter manufactured by the Thomson-Houston Company; that the only motors prior to and at that time in use in Brookline and Brighton were either the Sprague or Bentley-Knight motors, which made less noise in running than the Thomson-Houston motors, owing to a different arrangement of the machinery, and which were subsequently replaced on those lines by Thomson-Houston motors; and that the bell used on the car was a gong under the front platform, and was rung by the motorman pressing the lever, which came up through the platform, with his foot.</p> <p>The defendant called an expert electrician from the Thomson-Houston Company’s works, who testified that the bell always made about the same sound when rung, no matter what the pressure upon it was; that by reversing the power and putting on the brake a car could be stopped in a distance of from six to eight feet; that reversing the power would be likely to throw all the passengers violently forward, and ruin the motor; that it was a practice that was only resorted to in order to prevent serious accident; and that the buzzing noise of the motor would be diminished as the speed of the motor diminished, and would stop if the power was taken off, leaving only the sound of the articulating machinery and the rumbling of the car.</p> <p>The point on Beach Street where the accident occurred was about one fifth of a mile from Central Square, in Lynn. A section of the street, one hundred feet long, extending about fifty feet in each direction from the pole with which the plaintiff collided, has four dwelling-houses on each side of the street, and the street curves somewhat at this point. Ho contention was made that the speed of the car, four or five miles an hour, was excessive or improper.</p> <p>The defendant asked the judge to instruct the jury as follows :</p> <p>“ 1. Under all the evidence in this case, the verdict must be for the defendant.</p> <p>“ 2. The fact that the motorman kept his car in motion at moderate speed when there was no collision, and no likelihood of any collision, is not sufficient to make the defendant liable.</p> <p>“ 3. Although the jury believes that the motorman saw the horse, and could have stopped his car before it passed the horse, he was under no legal duty to so do, except to prevent collision. If there was no collision, his failure to stop was not negligence.</p> <p>“ 4. The whizzing noises connected with the running of the car, in the absence of any proof that the machinery was not such as was generally used at that time, or defective, is not sufficient to make the defendant liable.</p> <p>“ 5. It is certainly not true in law that street car companies are responsible for horses taking fright at the movement of their cars. They have just as much right to run cars on the streets of the city as other citizens have to drive through the streets with their horses and carriages.</p> <p>“ 6. The motorman of an electric car is not bound to look on both sides of the street while propelling his car, but is sufficiently performing his duty if he watches his track before the car, and sufficient space on each side of the rails, to be sure that he can propel the car at the rate of speed in which it is going without running over anybody or into any vehicle.</p> <p>“ 7. By being empowered to run its cars over Beach Street, and to use the electric system ,of motive power in running its cars on said street, the defendant has necessarily the right to make the reasonable and usual noises incident thereto, whether occasioned by the peculiar whirring sound of the electric motors, or by the rattling of the cars over the rails, or by the sounding of the gong employed to warn the public of the approach of the cars; although such noises may cause much annoyance and danger to those who are driving horses in the immediate vicinity, they must be prepared for them.</p> <p>“ 8. The defendant’s servants, operating one of its cars in a manner authorized by law, are under no obligation to stop such car upon seeing a horse on the side of the street, with room enough between it and the track for the car to pass without collision, merely because the horse shows some signs of fright, its driver apparently being awake to the condition of the horse, and having it under control. Nor is it such negligence as to make the defendant liable for the servants in charge of the car to sound the gong as a warning to the public, and to foot passengers on the street, of its approach.</p> <p>“ 9. Being authorized by the proper authorities to propel its cars where and by the means it did, the defendant had an equal right to the use of the streets with its cars that the plaintiff had with his horse, and this right involved the propulsion of the car at a reasonable rate of speed, and the right to sound its gong for the purpose of warning the plaintiff and others of the approach of the car, and the defendant’s servants in charge of the car were under no obligation to bring the same to a standstill because of the fright of a horse on the street, unless the failure so to do was such as to make a reasonable person anticipate a collision between the car and the horse and carriage.</p> <p>“ 10. It is the duty of the motorman in charge of the electric street car, as it is of a gripman in charge of a cable car, to sound his bell at frequent intervals while propelling his car along the street. This duty becomes imperative when going around curves, approaching curves, or passing along streets in cities in localities where many children use the street as a playground, and under such circumstances the duty of sounding the bell is paramount to that of not sounding it, even though it becomes apparent that this, with the other noises incident to the operation of the car, are contributing to the fright of a horse upon the street.</p> <p>“11. If the jury believe the plaintiff’s statement that, when he ran into the post, the car was one hundred feet away, the plaintiff cannot recover damages for any injury resulting from so running into the post. It was not the duty of the defendant’s agent to abstain from ringing the bell, or to stop his car, because of the fright of a horse one hundred feet away, even if such fright was apparent to the inotorman.”</p> <p>The judge declined to give these instructions, and instructed the jury, in substance, as follows:</p> <p>“ By being empowered to run its cars over the street in questian, and to use the electric system of motive power, the defendant has necessarily the right to make whatever noises are reasonably incident to running its cars over that street, whether those noises are occasioned by the electric motor or by the gong used to warn the public of the approach of a car. . . . The defendant has a right to operate its road in a lawful manner by means of the overhead electric system, and when it does this without negligence it is not responsible for injuries occasioned thereby. The claim is. for damages for an improper exercise of the right to run the cars, for doing that which was outside of what was necessary and proper. This corporation having a right to run its cars through this street and to use an overhead electric system, there were two parties under these circumstances who had a right to the use of the street, the defendant and the plaintiff, and each had a right in the street, . . . and upon each the obligation was laid so to conduct themselves, so to use their property, as not to injure the person or the property of the other, so far as that could be done through the exercise on the part of each of reasonable care. . . .</p> <p>“ First, in regard to the due care which the plaintiff was bound to exercise. He was bound to conduct himself on that occasion like a prudent man. . . . Whatever due care should have led him to do, that he was bound to do; and when you test the question of what was due care on his part, you have a right to put yourselves in his place, and ask, What would any one of us have done, being a reasonable man, acting from motives of reasonable prudence and care, as men of usual care ordinarily act? . . . If you took this road, you will consider whether as prudent men you would have stopped before the plaintiff did; whether you would have stopped before you came so near the telegraph pole as the plaintiff came, as the defendant contends he ought to have done, and have left a clear space of some distance beyond you, so that if the horse became frightened there would not be a telegraph pole so immediately near as this one was. ... If you find that he was negligent in this respect, he cannot recover; but if you find that he was in the exercise of due care, you will proceed to the second question, which is whether there was negligence on the part of the employees of the railway company.</p> <p>“ You will observe that the claim on the part of the plaintiff is, that they kept on ringing the bell and with the movement of the car in the face of apprehended danger when they saw or might have seen manifestations of fright on the part of the horse. You will take all the evidence on this subject into account. You will carefully weigh the evidence, the plaintiff’s testimony, the testimony of his daughter, and perhaps some other testimony in the case tends to establish that proposition, that the horse being frightened, the plaintiff got control of him, and that then the car kept on and the noise kept on until the horse took a second start, the plaintiff lost control of him, and the accident occurred. The motorman and the conductor of the car deny that they saw any manifestations of fright then in the horse. . . .</p> <p>“ I apprehend that this point, the question whether they . . . either did see or ought to have seen the frightened condition of the horse, is a point which it is important in this case for you to determine, because the claim on the part of the plaintiff is not that this company was negligent in the car going along there, making an outrageous noise and proceeding rapidly; . . . that is not it, but it is that under these circumstances it was negligence ; to wit, circumstances of danger attaching itself to the man whom they were meeting; so that whether they saw, or, what I think is the same thing, whether they ought to have seen, manifestations of fright on the part of the horse is, I think, a vital question in this case.</p> <p>“ In order that these points in the case, which I think are the points upon which the case sharply turns, may be exactly defined and brought out in the matter, I will submit to you three questions which I desire you to answer. The first will be, Was the plaintiff in the exercise of due care ? . . . The second is, Did the motorman or the conductor of the car see any manifestations of fright on the part of the horse before the accident, or might they by the exercise of due care have seen such manifestations ? . . . Third, Were the motorman or conductor guilty of negligence in sounding the bell, or in not stopping the car after they saw, or might by the exercise of reasonable care have seen, the manifestations of fright on the part of the horse?”</p> <p>The jury answered each question submitted to them in the affirmative, and found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, while travelling on a highway, by the falling upon him of a piece of iron forming part of the overhead apparatus of the electric street railway owned and operated by the defendant corporation, in Park Square, in Boston. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions, which appear in the opinion.</p>

Complaint, to the Municipal Court of Boston, under St. 1885, c. 342, alleging that certain rooms in Boston were occupied by some person to the complainant unknown, with apparatus, books, and other devices, “for the purpose of registering bets and of buying and selling pools upon the result of trials and contests of skill, speed, and endurance of men, birds, beasts, and machines,” and that the defendant, on June 30, 1893, was “ present in said rooms, and then and there…

Tort, for personal injuries occasioned to the plaintiff by the negligence of the defendant’s servants. Trial in the Superior Court, before Blodgett, J., who reported the case for the determination of this court, in substance as follows. The defendant is a corporation organized and existing under the laws of Great Britain, and owns and operates a line of passenger and freight steamers between Liverpool, Queenstown, and Boston.

<p>Flowage — Devise — Deed — Adverse Use — Non-user and Abandonment of Easement — Evidence.</p> <p>A test'ator by his will gave to his daughter A. the use, improvement, and income of a certain estate, and at her death he gave the estate to her surviving children in fee, but, if no child should survive her, then to the children of his son in fee; and further provided as follows: “ And in order to render more clear my intentions as it regards the disposition of certain portions of my real estate, my wish and desire is that so much thereof as I have devised with limitations shall be and remain in my family at least during the generation which succeeds me, if no longer.” A. afterwards-conveyed to B., by a deed in which her children joined, the estate in question, which included a mill privilege, and "also the privilege of flowing the lands ” adjacent. The testator’s son mentioned in the will had a child living. Held, in an action by the owner of the servient estate against B. for flowing his land, that B. took a good title under his deed.</p> <p>Cutting hay, digging out muck, enlarging and using springs upon land, and occupying a portion of it for a hen-house and hen-yard, by the grantee of the land and his predecessors in title for more than twenty years, is not such an adverse use of the land as will extinguish a right to flow the land not exercised during that time.</p> <p>A right of flowage acquired by grant is not lost by mere non-user.</p> <p>It cannot be ruled that the filling of the raceway, by consent of the owner of a mill privilege, is a conclusive act of abandonment of the right to flow adjacent land, nor that the putting of a wheel into the wasteway is not a user of the easement, but the question of abandonment, in an action for flowing the servient estate, is for the jury. ,</p> <p>In an action for flowing the plaintiff’s land, if he relies upon an'abandonment of the easement by the defendant’s predecessor in title, the predecessor may testify to his intent in doing certain acts as bearing upon the question of abandonment, and may also testify that he paid his tax on the property as a tax on a mill privilege.</p>

<p>Tort, by the administratrix of the estate of George McGivern, for personal injuries occasioned to her intestate, while employed by stevedores upon a steamship owned by the defendants. At the trial in the Superior Court, before Richardson, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions, which appear in the opinion.</p>

• Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant’s servant. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.

<p>Husband and Wife — Title to Bank Deposits and Securities — Inference.</p> <p>If a husband, who for several years keeps an account at a national bank in his own name, deposits therein, at different times, with her knowledge and consent, large amounts of money belonging to his wife, who keeps no bank account in her own name, and there is no evidence that he has withdrawn any considerable part of the money so deposited, for her use, up to the time of his death, which precedes hers, or that any of the money deposited by him in that bank was ever hiS property, the inference will be warranted that she intended neither to give nor to lend to him the money so deposited, but that she permitted it to be deposited in that manner for convenience until it should be invested.</p> <p>If money is deposited in savings banks in the names of “ S. J. and U. M. G., subject to withdrawal by either,” and in the names of “ S. J. and U. M. G., either to draw whole or part,” the two persons named being husband and wife, and the latter surviving the former, and it appears that all but a small sum as to the source of which there is no evidence came from the wife’s property, and that the bank-books were kept in a box to which each had a key, the administrator of the wife’s estate is entitled, as against the administrator of the husband’s estate, to receive the whole amount of the deposits.</p> <p>The fact that securities standing in the name of a husband or marked with the initial letters of his name were bought by him of a third person with the proceeds of property of his wife, and with her knowledge, will warrant the inference that they were so put in his name with her assent, and with the intention that they should become his property, if they are in the nature of permanent investments, and their value is not so large when compared with the value of the property which she retained as to make such an inference unreasonable, and if other securities which were kept in the box with the securities just named are marked with the initial letters of her name.</p>

<p>Life Insurance — Husband and Wife — Evidence — Fraud — Action.</p> <p>In an action by a married woman to recover back the amount of premiums paid by her on a policy of insurance issued upon the life of her husband for her benefit, evidence is admissible to show that she signed his name, without his knowledge or consent, to the examination form on the back of the application for the policy, and that he did not know or consent to the insurance, which acts, by the rules of the insurance company to which the policy was subject, rendered it void.</p> <p>The fact that a married woman deceived her husband, in concealing from him that she had procured a policy of insurance upon his life for her benefit, by signing his name to the examination form on the hack of the application therefor, will not affect her right to recover back the amount of premiums paid by her to the insurance company, if she was innocent of any intention to evade the rules of the company which rendered the policy void.</p> <p>If a married woman participates with the agent of an insurance company, with fraudulent intent, in procuring a policy of insurance upon the life of her husband for her benefit, by signing his name, without his knowledge or consent, to the examination form on the back of the application for the policy, which by the rules of the company to which the policy is subject renders it void, she cannot maintain an action against the company to recover back the amount of the premiums paid by her upon the policy.</p>

<p>Personal Injuries — Railroad — Throwing Mail-bag from, passing Train at Station — Implied Invitation to Public to use Platform — Due Care.</p> <p>A woman, who was residing temporarily in a town, and was going to a railroad station there for the purpose of getting a time-table and to see if there was any change in the time of the running of trains, was injured by being struck by a mail-bag thrown from a passing express train of the railroad corporation, while she was walking along the platform constructed and maintained by the corporation as a passageway to and from the station. In an action against the corporation for her injury, she testified that when struck she was about midway of the platform, which was about nine feet wide; that she did not look or listen for the approach of a train; and that she did not know that mail-bags were thrown off at the point. Held, that there was evidence for the jury that she was properly on the platform by the implied invitation of the defendant, and that she was in the exercise of due care.</p>

<p>Motion for a new trial of an action of replevin, on the ground of misconduct of the jury, which consisted by agreement of eleven jurors, who returned a verdict for the plaintiff in the Superior Court.</p> <p>At the hearing upon the motion, before Richardson, J., the defendant called as a witness John W. Tilton, a deputy sheriff, who had the charge of the jury during their deliberations on the case in their room; and, against the objection of the plaintiff, he testified substantially as follows:</p> <p>“ I heard their deliberations. I overheard what was said by them in the jury room. I heard the jury discussing the case, and I heard them state the result of a ballot. I heard one juror say that eleven ballots should be put into a hat, eight marked for the defendant, three marked for the plaintiff, that one member of the jury should be blindfolded and draw out a ballot, and that the jury should agree upon the result of the ballots so drawn out; then I heard them getting ready to take the ballot and to do it; there was a silence or pause after that during which something was being done apparently; and I heard the matter talked over by them after it was done, and I heard the result. I heard it stated by one of the jurors that the ballot drawn out was for the plaintiff. I heard these words, ‘ The ballot drawn out is for the plaintiff.’ Shortly after, in a few minutes, the foreman rapped upon the door, and said the jury had agreed. The jury immediately came into the court and rendered the verdict.”</p> <p>It appeared that the witness was not actually inside the jury room when he heard their conversation testified to.</p> <p>The plaintiff asked the judge to rule that the evidence of Tilton was incompetent, and inadmissible on the motion for a new trial; and that it was insufficient to set aside the verdict.</p> <p>The judge refused so to rule; found that chance or lot was resorted to by the jury in making up their verdict, and that, before it was done, they had agreed to abide by the result of drawing lots as to the verdict which they should render; and set aside the verdict, and granted a new trial.</p> <p>The plaintiff alleged exceptions.</p>

<p>Power of State Court to enjoin National Bank— United States Statutes.</p> <p>Under U. S. Eev. Sts. § 5242, a State court has no power to issue a preliminary injunction against a national bank; and this provision of the statute is not repealed by U. S. Sts. July 12, 1882, § 4, March 3, 1887, § 4, or August 13, 1888, § 4.</p>

<p> Motion to change by Amendment the Ad Damnum of a Writ. </p> <p>A justice of the Superior Court has power, on the plaintiff's motion, to change the ■ ad damnum of a writ from $10,000 to $15,000.</p>

<p>Personal Injuries — Photograph as Evidence of Physical Condition.</p> <p>While photographs have been admitted for the purpose of identifying persons, or of showing the condition of places and the relative position of objects, if verified by proof that they are true representations, it is doubtful whether they ought to be admitted for the purpose of showing the health, strength, or agility of a person; and a photograph, offered in an accident case, if regarded as evidence of the plaintiff’s physical condition when taken the summer before the accident, would be evidence of his condition at a time so remote that the court would be justified in rejecting it, even though accompanied by evidence that the physical appearance of the plaintiff had not changed in the mean time, especially where there is no difficulty in producing direct evidence of the apparent physical condition of the plaintiff at the time of the accident from persons who saw and knew him.</p> <p>Although common carriers of passengers are required to use a high degree of care towards the passengers carried, they never have been held responsible for all accidents which by any possible means they could have prevented.</p> <p>In an action for personal injuries, the judge instructed the jury that, if a street car had stopped a reasonable time, and the plaintiff did not step from it until after it had started, and was not at the time of starting apparently in the act of leaving, and the conductor did not know or have notice or reason to know that the plaintiff was intending to get off, there was no negligence in starting the car; that if the jury should find that the car had waited a reasonable time, and that the plaintiff was not in the act of leaving when the bell was sounded to start, and the conductor, had no.notipe of the plaintiff’s intention to get off, there was no negligence in starting the car; and that the conductor was not bound to know that every passenger intending to leave had left in the absence of any sign of such intention, and if after waiting a reasonable time he took reasonable means to see whether passengers were leaving, and no one appeared to be leaving, and the conductor did not know or have reason to know that the plaintiff was intending to get off, there was no negligence in starting the car. Held, that the instructions were correct.</p>

<p>Petition to bar Action on undischarged Mortgage — Statute — Decree.</p> <p>The provisions of St. 1882, e. 237, that “ when the record title of real estate is encumbered by an undischarged mortgage,” the mortgagor and those having his estate in the premises having been in uninterrupted possession for the time required, may bring a petition for a decree, to the end that no action shall be brought to enforce title under the mortgage, include a case where the mortgage is undischarged on the record of the proper registry of deeds, whether there is evidence sufficient to satisfy the court that the mortgage has been in fact discharged or not.</p> <p>If no assignment of a recorded mortgage upon land held by A., who is dead, appears of record, and B., to whom the equity of redemption in the land had been conveyed, assuming to act as the assignee of the mortgage, forecloses the same, and afterwards conveys the land by warranty deed to C., who, after the expiration of twenty years from the time limited in the mortgage for the payment of the debt, during which he has remained in undisputed possession of the premises, and no act in recognition of the existence of the mortgage has been done, brings a petition, under St. 1882, c. 237, to bar an action upon the mortgage, he is entitled to a decree, if sufficient notice has been given.</p>

<p>Tax — “ Benevolent ” or “ Charitable ” Society — Statutes.</p> <p>An association, organized under Pub. Sts. c. 115, for “ the promotion of temperance, mutual relief, assistance, and culture, and charity and benevolence,” whose principal income is derived from a fixed, regular compulsory contribution from its members, which is to constitute a fund to be used exclusively for the benefit of the members, is not either a “ benevolent ” or a “ charitable ” society, within the meaning of Pub. Sts. c. 11, § 5, cl. 3, as amended by St. 1889, c. 465, exempting, under certain conditions, the property of such a society from taxation.</p>

<p>Contract, to recover the amount of an instalment alleged to be due upon a premium note given by the defendants on the issuing of a policy of insurance by the plaintiff. The case Avas submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, upon agreed facts, in substance as folloAvs.</p> <p>On April 9,1888, the plaintiff Avas a foreign fire insurance corporation, organized under the laws of the State of Iowa, located at Dubuque in that State, and doing business in this Commonwealth ; but it had not then, and has not since, complied with the statutes of this Commonwealth applicable to such corporations.</p> <p>The defendants on the above named date entered into a contract for insurance with the plaintiff, and they signed the note declared on, and received from the plaintiff a policy of insurance upon their property in Cambridge. The signed application for insurance, with the note sued on accompanying the same, were sent by mail to the office of the plaintiff in Dubuque by the company’s agent in Massachusetts.</p> <p>The defendants, by virtue of the charter and by-laws of the plaintiff corporation, upon the policy issuing to them, became and were members of the corporation during the continuance of their policy of insurance.</p> <p>On August 6,1890, while the policy of insurance was in force, the plaintiff corporation became insolvent, and, by proceedings duly taken in the District Court of the County of Dubuque, in Iowa, made a general assignment to J. K. Deming.</p> <p>Between August 1, 1887, and August 6, 1890, the plaintiff suffered loss and expenses in a sum which rendered necessary an assessment of the balance due on the contract with the defendants, namely, $65.25, which amount, with all the assessments heretofore made on the contract, did not amount in the aggregate to a sum exceeding the amount appearing on the face of the contract; and on January 5,1891, it was ordered by the District Court that the defendants pay the sum above named to Deming as such assignee.</p> <p>The defendants received from Deming notice of such order, namely, to pay $65.25 within thirty days, the notice being dated January 6, 1891.</p>

<p>Motion to dismiss — Appeal — Deposit of Money instead of furnishing Bond with Sureties.</p> <p>An appeal lies, under Pub. Sts. c. 152, § 10, from an order of the Superior Court overruling a motion to dismiss for want of jurisdiction, even if it does not appear that any judgment has been entered on the finding of the jury, provided there is apparently no reason why such judgment should not be entered if the motion to dismiss was properly overruled.</p> <p>The deposit of a sum of money in a district court, to prosecute an appeal instead of furnishing a bond with surety or sureties under Pub. Sts. c. 154, § 52, and St. 1882, c. 95, is not good ground for a motion to dismiss the action in the Superior Court.</p>

<p>Declaration against two Indorsers in one Count — Demurrer — Averment to be taken distributively— Liability of Husband and Wife as Indorsers — Consideration of Promissory Note.</p> <p>Where a declaration against two indorsers in blank of a promissory note contains but one count, the objection that a separate count was required for each, if valid, can only be taken by demurrer.</p> <p>If a declaration against two indorsers in blank of a promissory note alleges separate indorsements by the two defendants, the concluding averment that they owe the plaintiff the amount of said note is not to be construed as alleging a joint liability, but may be taken distributively.</p> <p>A holder for value may take a valid title to a promissory note, although the two indorsers in blank are husband and wife, and although the declaration avers that the husband indorsed the note to his wife, if it appears that she never owned it, and that she indorsed it merely for the purpose of adding her responsibility to the holder, or of making a merely formal transfer of title through herself. Taking a promissory note indorsed in blank by husband and wife on the strength of the wife’s indorsement furnishes a sufficient consideration as against her.</p>

<p>Landlord and Tenant — Lease — Breach of Covenant— Unnecessary Removal of Building — Evidence of Authority and of Action under it.</p> <p>If the lessor of a room in a building in a city, upon receiving notice from the inspector of buildings in that city that the building is deemed by him to be unsafe, takes the building down unnecessarily, when he might cause it “ to be made safe and secure,” as authorized by St. 1885, c. 374, § 111, without taking it down, and without disturbing the possession of the lessee of the room, the latter may maintain an action against him for breach of the covenant for quiet enjoyment in the lease.</p> <p>In an action by the lessee of a room in a building in a city against the owner, his lessor, for breach of the covenant for quiet enjoyment in the lease, if it appears that, upon receiving notice from the inspector of buildings in that city that the building was deemed by him to be unsafe, a tenant who held the premises under a lease for a long term took the building down unnecessarily, when he might have caused it “ to be made safe and secure,” as authorized by St. 1885, c. 374, § 111, without taking it down, and without disturbing the possession of the lessee of the room, proof of a written agreement executed by the owner, the tenant, and a builder, whereby the owner consented to the erection of a new building upon the site, gave to the tenant an option to purchase the estate with the finished building thereon, and took a guaranty for the erection of the building, and evidence that the owner made no objection to the tenant's proceedings, although aware of them, are sufficient to show that the owner gave authority to the tenant to remove the building, and that the latter acted under that authority.</p>

<p>Bill for Instructions — Devise and Legacy — Charitable Trust — “ Guaranteed ” — Forfeiture.</p> <p>Where a bill for instructions is brought by a city, as trustee under a will of property devised to it upon certain charitable trusts, a corporation to which the property is limited over in certain events being made a defendant, and, although no instructions are asked on that point, setting up a claim to the property on the ground that the plaintiff has broken the conditions imposed by the will, the counsel signing the bill are the proper persons to argue it; and the allegation of a forfeiture must be regarded as a plea in bar, which, if made out, would show reason for refusing to give the instructions asked.</p> <p>A testator, by his will, gave to a certain town all his real estate therein, “ and all the pews I may own in the various meeting-houses or churches in and out of town, at my death, with the exception . . . , as a fund for purposes to be hereinafter mentioned, to be disposed of or kept as the town may think proper; the sales, together with the rents and profits and income, from whatever source obtained, to be kept as a perpetual fund guaranteed by the town with six per cent forever, for the purposes to be hereinafter mentioned.” Then followed eleven clauses of directions, including an independent devise to a third person, one of which was as follows: “ Whenever the income from the foregoing bequests shall be sufficient, in the opinion of the managers of said fund, or at least within twenty-five years after my decease, they shall establish and continue for the town . . . forever a female institute for the education of females from the age of ten to twenty years, who are native born,” to be located on land given to the town by the testator. He then provided as follows: “ If the town . . . refuses to accept the above property upon the terms herein specified, or fail to comply with the words or intent of this will, as determined by good judges, or should surrender the property or use it for any other purpose than contemplated in this will, then I bequeath the said property to the Trustees of D. College, to be used by them, in the manner they may think best, for the promotion of science and literature.” The town accepted the property so given, and did not surrender it or use it for any other purposes than those contemplated in the will. Held, that the word “ guaran teed” did not require any contract of the town, but meant that the fund was to be kept whole and applied as directed; and that the managers of the fund were directed to apply a reasonable portion of it to the purchase or construction of a suitable building or buildings for the use of the institute.</p> <p>Upon a bill by a trustee under a will for instructions, if it does not appear that any conflicting claims are made, or are likely to be made, in respect of certain of the matters as to which instructions are asked, and no statement is made in the bill which shows that the present disposition of the trust fund requires the instructions prayed, the court will not consider whether they ought to be given.</p> <p>Certain property was given by will to a town as a fund for establishing a female institute. The will provided that, if the town should “ fail to comply with the words or intent of this will, as determined by good judges,” or should use the property “ for any other purpose than contemplated in this will,” the property should go to a certain college; that the property was “ to be perpetually managed by the selectmen ” of the town ; and that, whenever the town became a city, “ then the government of said city to have the management of said property for the benefit of said city.” The town became a city, and the city established a board of managers of the fund, consisting of the mayor and other city officials and one citizen not a member of the city council; and the city also borrowed from the fund and charged itself interest. Held, that there was no forfeiture of the property by the city.</p>

<p>Partnership — Mistake in settling Accounts — Equity — Statute of Limitations —■ Laches — Decree — Interest.</p> <p>If, in settling the accounts of a partnership, it is found that one partner has withdrawn from the funds of the firm a certain sum in excess of the amount withdrawn by the other partner, and, through a mutual and innocent mistake, the former gives to the latter a promissory note for such sum, instead of for one half of it, a court of equity will grant relief against the mistake.</p> <p>Where a mistake in paying money is one which will be corrected by a court of equity, the statute of limitations does not begin to run until the time when the mistake was discovered, or when, by the use of due diligence, it ought to have been discovered.</p> <p>If, through a mutual and innocent mistake, in settling the accounts of a partnership, one partner gives to the other a promissory note for a much larger sum than that due from him, upon a bill in equity for the correction of the mistake, loches is not necessarily to be inferred from the lapse of more than six years, and the payment of more than half of the principal of the note and the regular payment of interest, before discovery of the mistake.</p> <p>In settling the accounts of a partnership, if one partner, through a mutual and innocent mistake, gives to the other a promissory note for double the amount due from him, upon which he has paid more than one half of the principal and also interest on the whole sum, he is entitled, upon a bill in equity for the correction of the mistake, to a decree for the surrender and cancellation of the note and the refunding of all payments of principal and interest in excess of what would have been due if the note had been for one half of its amount.</p> <p>Interest is not recoverable upon a sum overpaid by one partner to another, through a mutual and innocent mistake, in settling the accounts of the partnership, until a demand, or until the date of a bill in equity for the correction of the mistake.</p>

<p>Devise — Specific Performance of Contract to buy Land — Equity.</p> <p>A testator, by the first article of his will, gave all his property to his wife in fee; and provided, in the second article, that, if she should die intestate, “ or without having made other disposition thereof, then all my said estate, or the proceeds thereof,” should go to his brother and sister; and also provided, in the third article, as follows: “ It is my will that, in case my said wife shall remove for the purpose of permanently residing out of the limits of the United States, or if she shall remove any considerable portion of my said estate or the proceeds thereof out of said limits, then all the provisions of this will for her benefit shall cease to have effect.” Held, that the construction of the will could not be pronounced to be so free from reasonable doubt that specific performance would be decreed of a contract to buy land of the testator’s widow, whose title thereto was derived from the will.</p>

<p>Contract, to recover for- services rendered. At the trial in this court, without a jury, before Knowlton, J., the finding was for the plaintiff, and the defendant alleged exceptions, which were allowed, but which he neglected to enter upon the docket of the full court. The plaintiff thereupon filed the following application in the court, held by a single justice: “ Motion for judgment. Now in the above entitled action defendant comes and moves that the finding in said case may be affirmed, and judgment entered for the amount found due to the plaintiff. By his attorney, Charles P. Searle, attorney for plaintiff.” The following order was passed: “ On the application of the plaintiff, it is ordered that the rulings and orders of the court to which exceptions were taken and allowed be affirmed; it appearing that the defendant who took the exceptions has neglected to enter them in the Supreme Judicial Court.” The defendant contended that the court held by a single justice could not legally pass the order, and excepted to it. The court found that due notice of the application had been given. The defendant contended, in argument, that no notice had been given to the persons summoned as trustees; but whether this had been done or not did not distinctly appear.</p>

<p>Personal Injuries — Railroad — Evidence — Discretion — Receipt and Release — Fraud — Action.</p> <p>If the plaintiff in an action against a railroad corporation for personal injuries has given to the corporation, shortly after the accident which caused the injuries, a receipt in full and a release, which he contends were procured from him by fraud while he was in a dazed condition, the judge, in his discretion, may admit the testimony of an expert that the plaintiff’s mind might be dazed or confused as a result of such an accident as he had described, even though the testimony does not go so far as to show that that result was probable.</p> <p>In an action against a railroad corporation for injuries occasioned to the person and clothing of the plaintiff, who gave to the corporation, shortly after the accident which caused the injuries, a receipt in full and a release, evidence that the oral agreement of settlement was for a small sum, and covered merely the injuries to the plaintiff’s clothing, that the defendant’s agent, who procured the plaintiff’s signatures, represented to him that the receipt was only for the injuries to the clothing, and that the release was merely a form, whereas they both covered his claim for personal injuries also, that the plaintiff, who at the time was in a dazed condition, signed both papers without reading them or knowing their contents, and that his personal injuries were in fact serious, will warrant a finding that the receipt and release were procured by fraud on the part of the defendant’s agent.</p> <p>Where one who has sustained injuries to his clothing and also to his person by a railroad accident has been induced by fraud to execute to the railroad corporation a receipt in full and a release.for both injuries, upon being paid a small sum, which was understood by him to be compensation merely for the injuries to his clothing, he need not return the money so received before bringing an action for the personal injuries.</p>

<p>Personal Injuries — Employers’ Liability Act — Defective Appliance — Negligence — Action.</p> <p>A temporary staging, put up by masons in the employ of a contractor for the purpose of erecting a building on the land of a third person, is not a part of the employer’s “ ways ” or “ works,” within St. 1887, c. 270, § 1, cl. 1.</p> <p>The facts that the superintendent employed by a contractor, who is engaged in erecting a building, gives no instructions to the masons whom he has directed to build a certain piece of wall as to putting up a staging, and is not present when the staging is built, are not of themselves evidence of negligence on his part which will sustain an action against the contractor, under St. 1887, c. 270, § 1, cl. 2, by a person injured while employed as a mason’s tender by the falling of the staging, which is negligently built by the masons, a part of whose ordinary duties it is to build their stagings without special orders.</p>

Tort, for an alleged trespass in closing a private way across the defendant’s railroad in Walpole. At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Libel for divorce on the ground of adultery, alleged to have been committed with one Ford, on June 4, 1892. Trial in the Superior Court, before Braley, J., who allowed a bill of exceptions, in substance as follows.. It was either proved or admitted that the parties- were legally married, and that they lived together as husband and wife at Rockland until June 4, 1892.

<p>Effect of Decree of a Court of another State— Constitutional Law.</p> <p>The effect of a decree of a court of another State having jurisdiction of the settlement of the estates of deceased persons, while it remains unreversed by the court which made it, or by any appellate court, will not be avoided by a court of this Commonwealth on the ground that it was obtained by the fraud, misrepresentation, or gross and wanton negligence and mistake of the defendant.</p>

<p>Petition, filed June 2, 1892, under Pub. Sts. c. 176, to compel the respondent to bring an action to try the title to a part of Singing Beach in the town of Manchester. Hearing before Morton, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>The petitioner at the date of the petition was in the exclusive possession of the premises described in the petition, claiming an estate of freehold therein under a deed from the former owners.</p> <p>The respondent offered to show that on June 27, 1892, after the petition was filed, the Park Commissioners of the town of Manchester duly took in fee certain real estate in the town of Manchester, including the land described in the petition, for a public park.</p> <p>The judge ruled that, if it was a matter of discretion with him, he ought not, if the petitioner was otherwise entitled to a decree at the date of the filing of his petition, to refuse to enter a decree in his favor by reason of the facts offered to be shown by the respondent, and that, if he had ho discretion, those facts would not, as matter of law, constitute a defence to the petition ; and entered a decree that the respondent should bring an action to try the title to the land, counting upon its own seisin of the premises at the date of the petition, and alleging a disseisin by the petitioner on that day, and that in the trial of the action no evidence should be introduced by the respondent tending to show any title acquired by it, by park proceedings or otherwise, without the consent of the petitioner, since June 2,1892.</p> <p>The petitioner objected to a report of the case, on the ground that the decree was interlocutory, and that the respondent could not, at that stage of the case, have had an appeal or exceptions heard. But the judge was of opinion that the respondent would then have been entitled to have its appeal or exceptions heard, but that, if it would not have been so entitled, this report was to be discharged.</p>

Tort, for personal injuries occasioned to the plaintiff by a defect in the sidewalk of a street which the defendant was bound to keep in repair. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which, so far as material, were as follows.

<p>Laying out of Way by City — Form, of Remedy for Damages.</p> <p>The remedy given by St. 1885, c. 269, § 19, the charter of the city of Fall River, providing that any person dissatisfied with the decision of the city council of that city in the estimate of damages caused by the laying out of a way “ may, within one year from the time of such decision, make complaint to the county commissioners,” is not exclusive, and does not preclude an application for a jury to the Superior Court under the provisions of Pub. Sts. c. 49, § 105.</p>

Petition, for the assessment of damages for the construction and maintenance of a drain over the land of the petitioner by the board of health of the city of Taunton. Trial in the Superior Court, before Hopkins, J., who allowed a bill of exceptions, in substance as follows. The respondent filed a motion to dismiss the petition, on the ground that the Superior Court did not have jurisdiction. The motion was overruled, and the respondent excepted.

<p>Tort, for personal injuries occasioned to the plaintiff, while a traveller on the highway, by the fall of snow and ice from the roof of an abutting building owned by the defendant. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff received the injuries complained of while walking on the sidewalk on Essex Street, in the city of Salem, at about half-past two o’clock in the afternoon of March 8, 1890. The building from which the snow fell was situated at the corner of Essex Street and Washington Square, and was about twenty-five feet in height, with a triangular four-sided slated roof, one side of which sloped toward Essex Street at an angle of twenty-seven and one half degrees, and projected eight or ten inches over the line of the street,- with no guards or fenders upon it. There was evidence tending to show that on the night of March 7th the weather was cold, and that it was freezing during that night, but thawed some during the middle of the 8th. One Hart, called by the plaintiff, testified that on March.7 he passed the defendant’s building, and saw snow and ice hanging from the roof over the line of Essex Street; and one Osborne, also called by the plaintiff, testified that he noticed the building at the time of the accident, and in response to the question, “ What had been the condition of that roof for two or three days before that time, the 8th of March, 1890,” replied, “ Well, there was snow and ice there. It was very seldom shovelled off.”</p> <p>The defendant, who was called by the plaintiff, testified that he was a trustee under the will of George Creamer, and as such trustee held the premises in question ; that tenants at will occupied portions of the building at the time of the accident; that a portion of the building was unoccupied at the time, and that for twenty years previous he had employed a man to look after the building during the winter. He offered to show that the roof was of the usual and general construction as to pitch and slope, and that it was a form of construction that had been used for years, and was in use on at least two thirds or three fourths of the buildings on the streets in Salem, but the offer was excluded.</p> <p>The defendant requested the judge to rule that, as the ac- • tian had been brought against him as trustee under the will of George Creamer, it could not be maintained against him in that capacity, but only against him personally, if at all. The judge declined so to rule, or to require the plaintiff to amend her writ, and instructed the jury that “ the defendant has no right to erect or maintain a building, if it be of no unusual construction, so near the street that snow or ice will fall from it, in the ordinary course of things, so as to endanger travellers in passing; and if the building in question was so constructed and maintained, the defendant would be liable without further proof of negligence.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract, for services as an attorney at law rendered to the defendant’s intestate. Answer: 1. A general denial. 2. That the whole of the effects of the defendant’s estate which have come into his hands have been exhausted in the payment of the charges of administration and of debts and claims entitled to a preference. 3. That the plaintiff is not a preferred creditor.

<p>Soldier— Pauper — ■ Reimbursement out of Pauper's Estate.</p> <p>The laws granting State aid, military aid, and soldiers’ relief do not take from their beneficiaries the right to claim support and relief under the poor laws, and a discharged soldilr entitled to soldiers’ relief who does not claim it, but claims and receives support under the poor laws, is a pauper.</p> <p>The fact that a deceased pauper was entitled to soldiers' relief, which had not been afforded him, does not bar an action by the overseers of the poor under Pub. Sts. c. 84, § 32, to recover expenses incurred for his support as a pauper.</p>

<p>Libel — Privileged Communication — Evidence.</p> <p>An action for libel was brought against the members of an investigating committee appointed by a town with which the plaintiff had a certain contract, for defamatory matter contained in a printed report made by them to the town. Held, that in making the report the committee was performing a duty imposed upon it, and was communicating to the voters and taxpayers of the town the results of an investigation in which they had an interest, and which they had the right to know and act upon, and the occasion was such as to protect the committee from liability for such statements contained in the report as were made in good faith, without malice, and with reasonable cause to believe them to be true, and which did not go beyond what was fairly required of them in the discharge of their duty.</p> <p>In an action for libel against the members of an investigating committee appointed by a town with which the plaintiff had a certain contract, the libel set out in the declaration charged the plaintiff, in substance, with larceny, dishonesty, worthless financial standing, and corrupt practices in his profession as a civil engineer. The answer contained a general denial, a plea of privilege, and an allegation of the truth of the charges, except as to the charge of larceny, and as to that and all other statements that they were made in good faith, without malice, and to persons interested in the matters and none other. Held, that upon the issues thus presented the question whether the committee investigated the system of waterworks in process of construction by the plaintiff, or what were the merits of the controversy between the plaintiff and the town for whom the committee was acting, as well as what a sub-contractor in the conduit line which the plaintiff was engaged in building said to another member of the committee not one of the defendants about the system of waterworks, or to the committee about the conduit line, or what the plaintiff said to one of the defendants about an extension of the contract, was immaterial.</p> <p>At the trial of an action for libel against the members of an investigating committee appointed by a town with which the plaintiff had a certain contract, for defamatory matter contained in their printed report to the town, another member of the committee not a party to the proceedings was asked by the defendants whether the committee called on business men in Boston who were engaged in the same kind of business as the plaintiff, and who knew him, to inquire of them as to his financial standing and reputation for honesty, and also whether the servants or agents of the B. Manufacturing Company in Boston told the committee that the plaintiff had been to see them, and had requested them to make cheaper machines for the waterworks which were being constructed for the town for which the defendants were acting at a smaller price than the contract called for, saying that the water commissioners would never know the difference. Both questions were excluded. Held, that the defendants were entitled to show, not only that the report was made by them as the result of their investigations, but, especially in view of the privilege attaching to the occasion, and as bearing on the question of their good faith, that the statements regarding the transaction with the B. Manufacturing Company and regarding the financial standing and reputation for honesty of the plaintiff in substance like those contained in the' alleged libel were made to them by persons who, they had reason to believe, were credible, and under circumstances which justified them in relying and acting upon them, and the exclusion of the questions gave the defendants good ground of exception.</p> <p>At the trial of an action for libel against the members of an investigating committee appointed by a town with which the plaintiff had a certain contract, for defamatory matter contained in their printed report to the town, the defendants, in support of their plea of justification, having testified that at an interview between them and the plaintiff the latter proposed to one H., chairman of the board of water commissioners for the town, that H. should dispose of certain bonds that were to be negotiated by the town in order to raise money to pay for the waterworks and to divide with him any premium that might be received therefrom, the plaintiff, in rebuttal, was asked from what source he was informed that the town was to obtain the money to pay for the waterworks, and further whether he made any bargain with the town to take the bonds, and, having replied to the latter question in the affirmative, he was asked to state what the bargain was, and with whom it was made. One W., a witness for the plaintiff who was present at the interview, was asked to state whether the plaintiff said to the committee that he had entered into a corrupt bargain with H. to share any excess of premiums on the bonds to be sold by the town. Held, that the evidence was properly admitted in reply to evidence introduced by the defendants.</p>

<p>Personal Injuries — Defective Highway — Evidence.</p> <p>In an action against a city for personal injuries occasioned to the plaintiff by falling upon ice which had accumulated in a depression in the sidewalk of a highway, which depression the plaintiff’s evidence tended to show had existed continuously from the previous winter to the time of the accident in the spring, and was so formed as to retain water, the plaintiff has no ground of exception to the exclusion of evidence offered to show that the habitual condition of the depression during the previous winter was that it was coated with ice.</p> <p>At the trial of an action against a city for personal injuries occasioned to the plaintiff by falling upon ice which had accumulated in a depression in the sidewalk of a highway the plaintiff asked a witness, who testified that the day before the injury to the plaintiff she saw ice in the depression, “ Is there anything which causes you to remember particularly the condition of that walk on that day ’ ” The plaintiff admitted that his purpose was to show that the witness remembered it because she slipped on the ice in the depression ; and also that the fact that she slipped had no tendency to show the defendant’s liability. The judge ex- . eluded the question; but the witness was not precluded from stating the extent and particularity of the examination which she made of the place. Held, that it was within the discretion of the judge to exclude the question At the trial of an action against a city for personal injuries occasioned to the plaintiff by falling upon ice which had accumulated in a depression in the sidewalk of a highway on March 22, a police officer testified that he was on duty upon the way in question, and went over the sidewalk at the place of the accident several times a day; and that he did not remember specifically the condition of the sidewalk on March 22. The defendant was then allowed to ask him, “For the period of time from the first of February down to and including the twenty-second day of March, in what condition was the sidewalk ” at the place in question “ kept ? ” Held, that it could not be said that the evidence was improperly admitted.</p>

<p>Indictment, for keeping and maintaining a certain tenement in Natick used for the illegal keeping and sale of intoxicating liquors, between May 1, 1892, and February 18, 1893. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The government introduced evidence tending to prove that the defendant, during the time in question, was the proprietor of the Russell House in Natick, and during that time had an innholder’s license and licenses of the first and fourth classes under Pub. Sts. c. 100, § 10; and that beer was sold upon the premises by the defendant’s bar-keeper to minors at different times between the dates named in the indictment. One of the minors, named Murphy, testified that he bought beer at the defendant’s place of business of Frank Gavin, the defendant’s bar-keeper, on July 4, 1892, on Thanksgiving night, 1892, and on January 8, 1893.</p> <p>At the close of the evidence, the defendant asked the judge to rule that there was no evidence that intoxicating liquors had been illegally sold by the defendant during the time in question, the attention of the judge being called to the fact that the only evidence of sales was of beer.</p> <p>To this the judge replied that, as he remembered the evidence, John Gavin, the defendant’s bar-keeper, had been asked by the district attorney, on cross-examination, whether he had sold intoxicating liquor to Murphy within the time covered by the indictment, to which the witness replied, “ Yes ” ; and that the district attorney then asked, “ What?” and he answered, “ Beer.” The judge thereupon declined to rule as requested; and.the defendant excepted.</p> <p>The judge instructed the jury that, if they found that John Gavin testified as above stated, they would be justified in finding “ beer,” as used by the witnesses, to mean intoxicating liquor; and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Indictment, for an assault with intent to commit rape upon Katie Closeman, on February 28, 1893, at Newton. Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Katie Closeman testified that, as she was walking towards her home, she was tripped up by a man who came up behind her; that she fell to the ground, and while in that position, and while struggling to her feet, and after she got up from the ground, the alleged assault was committed ; that the struggle was going on about five minutes; and that she screamed for help, and he left her as another man appeared.</p> <p>She also testified to what the man said to her, and that she saw the face of the man who assaulted her; that she smelled liquor in his breath; that he had on a dark derby hat and a dark gray overcoat.; that it was about nine o’clock on February 28; that there was no moon and it was snowing, and there was snow on the ground from prior storms; that the only lights on the street were gas lights, the nearest one on the opposite side of the street and some distance away; that she was positive the defendant was the man who assaulted her; and that she had no recollection of seeing him before.</p> <p>The only other testimony to the identity of the defendant was that of Albert W. Frye, who testified that he was at his home not far from the locality of the assault, and heard some one scream, and later heard some one call for help; that he went to the assistance of the person, and as he came near the locality he saw a woman and a man on the sidewalk, and as he was within about a rod of the woman the man came away, and he passed him and went to where the woman was; that from what she told him he went in pursuit of the man, and, overtaking him on a private way, exchanged words with him when they were about two feet apart; that the man went on and Frye followed, and the man turned and threatened him and then went on; that Frye again followed him a little distance farther on a street, the man on one side and Frye on the other, when the man turned back and Frye went on ; that both times when the man spoke to him it was on a private way leading from the street where the assault occurred to the street parallel with it, and there were no lights on it; that the nearest lamp to the place where the assault occurred was four rods away; that there was no moon that night, and it was snowing; and that he identified the defendant as the man he followed, and stated that he had not seen him before that night.</p> <p>The defendant’s father, one of his neighbors, and two of his brothers testified positively that the defendant was at his own home before nine o’clock on the evening of February 28.</p> <p>It was conceded that he could not have been there at that time, if he committed the assault.</p> <p>The defendant asked the judge to instruct the jury as follows :</p> <p>“ 1. Very great care should be taken in weighing the testimony of witnesses who testify to the identity of the party charged with the offence with the party who committed it, where, as in this case, their only opportunity for identifying the party who committed the offence is confined to the space of a few minutes only in the night-time, on the street, with the nearest lamp four rods away, in the midst of a snow-storm, and under most distracting circumstances; particularly where this evidence is contradicted by evidence of an alibi.</p> <p>“ 2. The jury must not take into consideration, in weighing the evidence as to identity, the opportunities of the witnesses to see the defendant since the crime with which he is' charged was committed.”</p> <p>The judge refused so to rule, and instructed the jury as to the facts necessary to be proved to sustain the allegations in the indictment; and upon the evidence as to the identity of the defendant as the person who committed the assault instructed them that, in considering the evidence of Closeman and Frye, the jury should consider the opportunity which each of them had to observe the person concerning whom they had testified; that they should consider the condition of the locality as to light and all the other circumstances shown by the evidence, and the ability of the witnesses during the time they saw the person to observe his features, his voice, his dress, and any other marks of identity of the person whom they saw, so as to be able to describe the person, and to recall any marks of identity afterwards, and to testify to them and to form an opinion from what they saw that the defendant was the person whom they saw; and that the jury must also be satisfied that the witnesses had testified as to the identity of the defendant from what they saw that night, and not to an opinion formed afterwards from what they learned later.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Complaint, for keeping and maintaining a certain tenement in- Lowell, used for the illegal keeping and sale of intoxicating liquors, between May 1 and September 18, 1893. At the trial in the Superior Court, before Bond, J., the following facts were agreed.

<p>Larceny — Confession — Evidence.</p> <p>A confession, made by a person who has been arrested for larceny to a police officer who has him in his custody in the lock-up, and in response to a remark by the officer to him that “ he had better tell the truth,” is inadmissible at the trial of an indictment against him for the larceny.</p> <p>A person who had been arrested for the larceny of some whiffletrees made a confession to the police officer who had him in his custody in the lock-up, in response to the officer’s remark to him that “ he had better tell the truth.” At the trial of an indictment against him for the larceny, this confession was excluded. The owner of the property stolen was allowed to testify that he was present, on the next day after the arrest, when the defendant was arraigned in the district court; that when the defendant was asked whether he was guilty or not guilty, he said “ he did not know anything about the whiffletrees ” ; that the officer to whom the alleged confession was made thereupon asked the defendant “if he was not there when they were taken, and he said he was there, but did not go into the barn ”; that the officer then asked him, “ Did n’t you stay outside ? ” and he said “ Yes”; and that he then asked him “if he waited for” another person named “ to bring out the stuff and went with him and hid them up,” and he said, “ Yes.” Held, that the evidence was properly admitted.</p>

<p>Complaint, on the St. 1886, c. 318, § 2, alleging that the defendant, on August 26,1893, at Boston, sold to Edward Kelly a certain quantity of milk “ not of good standard quality.” Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The evidence for the government tended to show that, in August, 1893, one Edward Kelly, a sample collector of milk, in the employment of the inspector of milk, called at a hotel known as the Bay State House, in Boston, and ordered a breakfast in the dining-hall of the hotel, which was a public house conducted by the defendant and his son on the American plan, so called; that Kelly called for a glass of milk with his breakfast, which was furnished him by the girl who waited upon him; and that a part of this glass of milk was taken away from the hotel in a bottle, and subsequently analyzed by a chemist, and found to contain less than thirteen per cent of milk solids.</p> <p>Kelly testified that he paid thirty-five cents for his breakfast, and nothing for the milk as distinct from his breakfast; that he paid the clerk in the hotel office; and that neither the proprietors nor the clerk knew that he had ordered the glass of milk at the time he made the payment.</p> <p>The evidence for the defendant tended to show that he purchased for consumption in his hotel standard milk only, and all of it at standard prices, and no other quality of milk was used in the hotel, unless as stated hereafter; that the defendant took his milk after it had stood for some hours and poured off the top of the milk in all the cans into small cans, for use on the tables in the dining-hall of the hotel, and saved the residue for use in the hotel kitchen, and instructed all his waiters and other help to allow no milk to be served for the table not taken from the small cans; that the defendant offered no milk of any kind for sale, nor kept any for sale, distinct from his regular meals, and not a part thereof; that he knew nothing of Kelly’s call at his hotel until the commencement of this prosecution; that his regular price for a breakfast was thirty-five cents; and that Kelly would have been charged the same price if he had not called for milk. The defendant’s bills of fare which were used in the hotel at the time of the alleged sale were produced, and no milk appeared thereon.</p> <p>The defendant contended, and asked the judge to rule, that, under a proper interpretation of the statute, he had sold no milk contrary to law, and was not amenable to the statute; and that, if the table girl took milk from the cans designed for the use of the hotel kitchen contrary to his instructions, he was not answerable therefor under this complaint.</p> <p>The judge declined to rule as requested, and instructed the jury that if the defendant’s servant, in the ordinary course of her employment, acting in good faith and intending to obey the defendant’s instructions, delivered to Kelly upon his order the milk in question as a part of Kelly’s breakfast, for which breakfast Kelly paid thirty-five cents, and the milk was not of good standard quality, the defendant was responsible under the statute, notwithstanding the servant negligently and by mistake took the milk from a can which had been set apart for use in the kitchen; but that the defendant was not responsible if his servant, in furnishing the milk upon Kelly’s order, intentionally acted in disobedience of the defendant’s instructions.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Sodomy — Indictment — Statute.</p> <p>An indictment under St. 1887, c. 436, alleging that the defendant at a time and place named “ did unlawfully and feloniously commit a certain unnatural and lascivious act ” with a person named, is sufficient.</p>

Bill in equity, filed May 13, 1893, to enforce an alleged trust in the proceeds of the sale of certain real estate. Hearing before Morton, J., who reported the case for the consideration of the full court, in substance as follows.

<p>Indictment, in three counts, returned into the Superior Court at the June term, 1891, alleging that the defendant attempted to procure the miscarriage of Mary A. Murphy on April 25, 1891, in consequence whereof she died on the following day. After the former decision, reported 156 Mass. 99, the case was tried in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant before the jury were impanelled filed a plea of former acquittal on the second and third counts of the indictment. The government demurred to the plea, and the judge sustained the demurrer; and the defendant excepted.</p> <p>No order or direction was made by the Supreme Judicial Court as to the new trial of the case.</p> <p>At the trial the government offered evidence to prove that Mary A. Murphy came to her death by peritonitis induced by the rupture of her uterus by some instrument, and produced a sea-tangled tent, and offered evidence tending to show that the tent was found in the pelvic cavity of the deceased ; that it had reached that cavity by having passed through the os uteri, and through the posterior wall of the uterus; and that the tent was applied to produce abortion.</p> <p>It was in evidence that the last time the deceased was seen outside of the house of the defendant, where she had been employed as a domestic for eighteen months prior to her decease, was on April 16, 1891; and that she had been about the house, but not well, so as to perform her usual domestic duties, up to Sunday morning, April 26, the day of her decease.</p> <p>It appeared in evidence that Lizzie Murphy, a sister of the deceased, went to the house on Sunday afternoon about three o’clock; and that the only conversation she had with the defendant was when he came into the room where she was with a cup in his hand and a spoon. She testified as follows: “ I asked him what was the matter with my sister, and he said she was bilious, had bile on the liver; it would frighten anybody to see the stuff she vomited. That is all the conversation I had with him.” It also appeared in evidence that the defendant’s wife, her mother, and her niece were present when the witness had the conversation with the defendant; that his family, during the last year that Mary A. Murphy resided in it as a domestic, consisted of himself, his wife, and his two boys, respectively of the age of eleven and nine years, Mrs. Randall, the mother of his wife, and William A. Randall, a brother of his wife, a man about thirty years of age, who was a boarder in the family, and who absented himself from the house on April 25, 1891, and returned on April 27, and on that day, which was the day after Mary Murphy died, he left the house and went elsewhere to reside; and that Mary A. Murphy stated that when she was not well she and Randall did the housework, that he helped her to do it. It was also in evidence that Mary A. Murphy was nineteen years of age at the time of her death; that while she was a domestic in the defendant’s family she was allowed a latch-key, and one afternoon and evening of each week; and that she usually went out at about two in the afternoon and returned in the evening of the same day between nine and ten o’clock.</p> <p>There was no evidence introduced by the government or by the defendant but such as was competent and material on the first count of the indictment.' The same evidence was also competent under the second count of the indictment.</p> <p>Before the argument the district attorney suggested to the judge that he would consent to a change of the ruling sustaining the demurrer, stating that he should rely only on the first count. This statement was made in the presence of the defendant’s counsel, but was not made in the hearing of the jury. The judge declined to change the ruling.</p> <p>The defendant asked the judge to instruct the jury as follows:</p> <p>“ 1. The jury must be as fully convinced of the guilt of the defendant from the circumstances and combination of circumstances as if direct proof had been brought in support of the allegations in the indictment.</p> <p>“2. The case of innocent persons must be of a nature to afford very little evidence; but the jury must be distinctly persuaded of the guilt of the prisoner before they can lawfully return a verdict against him, and the difficulty of proving a negative shall in this, as in all cases of circumstantial evidence, be allowed due weight; and it is not always possible for innocent persons to explain facts that are against them.</p> <p>“ 3. In order to convict on circumstantial evidence, you must be satisfied that the act could not have been done by another person than the person charged in the indictment, and on this point the government must satisfy you beyond a reasonable doubt.</p> <p>“ The trial proceeds upon the assumption, and the government is required to prove, that somebody other than Mary A. Murphy performed the operation, with intent to procure a miscarriage, and the operation which caused her death. If she performed that operation upon herself, this defendant cannot be convicted. And if in regard to that matter, weighing all the evidence carefully, and availing yourselves of the knowledge which it is assumed you have in common with men in general, there is a reasonable doubt in your minds as to whether Mary A. Murphy did in fact perform this operation upon herself, the defendant must be acquitted.”</p> <p>The judge refused to give the instructions requested, and, among other things, instructed the jury as follows:</p> <p>“Now you understand, of course, that a defendant is not obliged, even here, to prove that he is not guilty of the offence charged against him. In theory, the defendant would have a right to rest upon his plea which he records here of not guilty when the indictment is read to him, and say no more, offer no evidence, and it would be the duty of the jury to acquit the defendant unless the government has proved to you with that degree of certainty that is required in criminal cases that the defendant is guilty of the offence charged. He is not to disprove the charge; the burden is on the Commonwealth. . . .</p> <p>“In a criminal case the degree of certainty that is required of the government to establish the guilt of a defendant is, as is sometimes said, that the proof must establish the guilt beyond all reasonable doubt. . . .</p> <p>“ It is not enough in a criminal case for the government to satisfy the jury that there is a well grounded suspicion against the defendant that he committed the crime that is charged against him, no matter how strong the suspicion may be. . . . Something more must be shown than that there is a possibility that the defendant committed the act that is charged against him. Something more than the fact that there is a probability, however strong that may be, that the defendant committed the act charged against him must be shown, before the jury is warranted in finding a verdict of guilty under our system of jury trials in criminal cases. . . .</p> <p>“ But yet the government is not obliged to prove that the defendant is guilty of the offence charged beyond all possible doubt. That is a strictness that is not required. ... It is only the establishment of the charge beyond all reasonable doubt, not beyond all doubt.</p> <p>“ How a reasonable doubt is sometimes said to be a doubt arising on a fair consideration of the evidence in a case, for which a good reason can be given; and it has been explained to be a state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge, — a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. It is that certainty that is required in criminal cases.</p> <p>“A moral certainty is that state of the judgment grounded upon an adequate amount of appropriate evidence, which induces a man of sound mind and of ordinary prudence to act without hesitation in the most important concerns of human life. A juror may be said to be morally certain, when he is so fully convinced by the evidence of the truth of the facts sought to be proved that he would venture to act on his conviction in matters of the highest importance to his own interests. When a juror is satisfied upon the evidence to that extent, then he is satisfied, within the meaning of the law, the case has been established with that degree of certainty that is required in criminal cases. Anything short of that fails to establish the charge; and although the juror may not be able to say that he is satisfied the person is not guilty, yet the verdict must be not guilty, which is only another way of saying that the case is not proven. . . .</p> <p>“ Now there is another matter that applies to this case, and to every case situated as this is, that I desire to call your attention to, and that is the kind of evidence that the government, or that the defendant in the trial of a cause, is oftentimes obliged to rely upon. We have what we term in law two classes of evidence in this particular; that is, we have direct evidence of the fact charged, and we have circumstantial evidence of the fact charged. There is no direct evidence of the fact charged here in this case ; the evidence is circumstantial; and what is meant by that is that the government undertook to establish here certain facts, not the fact that is charged, but certain surrounding facts. And they say, having established those facts, those circumstances, they so surround this case that the inevitable conclusion is that the person committed the act that is charged against him.</p> <p>“ Now sometimes jurymen get the impression that such evidence is not reliable, that it won’t do to rely upon circumstances. Men are so constituted that some .are more easily convinced by some circumstances than others. But experience has shown that, if we were unable to rely upon what is termed circumstantial evidence, there would be very little that could be done in the court-room with reference to criminal business. The only difficulty is, not in the admission of that sort of evidence, but in the care that should be exercised in the consideration of the circumstances, and the drawing of the inference which is asked to be drawn on the one side and the other from the facts that are so established.</p> <p>“ A long experience would have determined, I think, would have satisfied you, that what is termed direct evidence in the court-room is oftentimes more unreliable than circumstantial evidence, and yet you may think that is strange. That is, you say, how can anything be more satisfactory than the testimony of a witness who comes upon the witness stand and swears to the commission of the act, to the seeing of it done himself, by the defendant ? What can be more satisfactory than that?</p> <p>“ If you had been in the court-house very long you would learn that there is very much of that class of evidence that is unworthy of belief perhaps. There are possibilities connected with that sort of evidence which, if you had had much experience, you would see at once make it no more satisfactory than circumstantial evidence. . . .</p> <p>“ There are three counts, as it is termed, in this indictment; and if I understand the position of the government with reference to it, it is that there is no claim made that there should be any conviction here unless it is upon the first count in the indictment. So that I shall have no occasion to explain to you what it would be necessary to prove in order to find a verdict of guilty on what may be termed the second and third counts, and therefore you may return a verdict of not guilty upon the second and third counts, and determine what verdict you should return, and return such a one as you find you are compelled to return on the evidence, on the first count. ...</p> <p>“ Now, in the first place, to begin with the elements in their order, as they are set out, the instrument that it is asserted was used in this case is what has been termed here a sea-tangled tent; and the charge is that this defendant inserted that instrument into the womb of Mary Murphy.</p> <p>“ Now you have to consider here, at the outset, if this instrument was inserted by some one with the intent that is set out in the indictment, whether it was inserted by Mary Murphy herself or by the defendant. For if it was inserted by her, even for the purpose of producing a miscarriage, the defendant cannot be convicted under this count in the indictment. ... If you are unable on all the evidence to determine whether this instrument was inserted by Mary Murphy or by the defendant, then the defendant cannot be convicted upon this count. You must be satisfied that the defendant inserted the instrument. I do not mean to say, of course, that if you are satisfied that he inserted it, that that is sufficient; but that is one step that must be proved, that he inserted it; and if you cannot tell on the evidence whether he did it or whether she did it, then the defendant cannot be convicted. The trial proceeds upon the assumption, and the government is required to prove, that somebody other than Mary Murphy performed the operation, with intent to produce a miscarriage, and that the operation caused her death. If she performed that operation upon herself, the defendant cannot be convicted. And if, in regard to that matter, weighing all the evidence carefully, and availing yourselves of the knowledge which it is assumed you have in common with men in general, there is a reasonable doubt in your minds as to whether Mary Murphy did in fact .-perform this operation upon herself, the defendant must be acquitted. . . .</p> <p>“ How the government claims that there is other evidence bearing upon this question besides” certain evidence referred to, “ as to the possibility of Mary Murphy doing this, and besides the instrument that the defendant had, which they contend the evidence shows had been used, or a similar instrument, upon Mary Murphy, and that it shows that the defendant was the one who had operated upon this woman, and that he had inserted the instrument, that he was the one that had undertaken to remove it because he had inserted it, and they ask you to consider those circumstances. It is claimed that he was at home during all the week prior to this time, and that for this reason he had an opportunity to commit the crime. Here you should bear in mind, however, that the opportunity to commit a crime is not evidence that the person committed it. The want of opportunity is evidence that the person did not commit it. But you can readily see, when a crime has been committed in a particular locality, there might be a hundred persons who had the opportunity to commit the crime, and therefore the opportunity is not evidence that all the hundred persons committed it. Still, it is a matter to be considered always, for the reason that the want of opportunity is evidence that the person did not commit the offence.”</p> <p>At the conclusion of the charge, the defendant requested the judge to instruct the jury that an attempt to remove the tent would not warrant conviction on the first count contained in the indictment; that, in order to, convict the defendant, the jury must be satisfied that no person other than he had an opportunity to insert the tent into the womb of Mary A. Murphy, and , that she did not herself insert the tent into her own womb.</p> <p>The judge refused to give these instructions; and the defendant excepted.</p> <p>The jury returned a verdict of guilty on the first count, and not guilty on the other counts; and the defendant alleged exceptions.</p>

<p>Indictment— Officer of Corporation — Proof of Acts as such Officer.</p> <p>An averment in an indictment for embezzlement, under Pub. Sts. c. 203, § 40, that the defendant at a time and place named was “ then and there an officer, to wit, the financial secretary ” of a certain corporation, is sustained by proof that he acted, and was duly elected and installed, as such officer; and it is immaterial whether or not he gave a bond for the faithful discharge of his duties, as required by the laws of the corporation.</p>

<p>Personal Injuries — Street Railway — Master and Servant — Risks of Employment — Action.</p> <p>A person employed about its car-house by a street railway corporation, who is injured by having his leg caught between the running boards of two open cars, while one is passing the other upon a curve in the tracks leading from the car-house to the street, must be presumed to have so known and appreciated the danger arising from the swing of a car in passing over a curve as being obviously incident to his employment as to preclude him from maintaining an action against the corporation for his injury; and it is immaterial that the risk was increased during his employment by the use of open cars, longer and wider than close cars, if he continued to work without protest or promise of change of conditions.</p>

<p>Loss of Life — Employers' Liability Act — Defective Appliance — Action.</p> <p>While workmen were engaged in raising an iron door which formed half the bottom of a cylindrical furnace, a wooden lever by which one of the workmen was helping to raise the door on its hinges broke, the door swung down and struck an iron lever held by A., another workman, driving it into his body and killing him. In an action under the employers’ liability act, St. 1887, c. 270, for causing A.’s death, there was no evidence that the wooden lever was defective except that it broke, and none that it appeared to be defective or could have been discovered to be so. It had been in use a long time, but was not specially worn at the point of strain. A. was the person in immediate charge of the furnace. The employer kept a stock of lumber of the proper size on hand, and A. could have obtained a new lever at any time by asking for it. Held, that the action could not be maintained.</p>

<p>Partnership — Principal and Agent — Attorney and Client— Compensation far Professional Services.</p> <p>The dissolution of a partnership does not prevent the maintenance of an action for the recovery of a debt due to the firm.</p> <p>If A. employs B. to do certain work, and B., with A.’s assent, employs C. to do parts of the work, B. assuming the responsibility for C.’s work, B. is entitled to recover from A. a reasonable compensation for the work done, without regard to what B. has paid C.</p> <p>In an action by an attorney at law for services rendered, the defendant has no ground of exception to a ruling that, in the absence of any agreement as to the price or value of the plaintiff’s services, he was entitled only to a fair and reasonable compensation.</p> <p>Official salaries paid by the State cannot be taken as a standard or limit of compensation to be recovered in an action by an attorney at law for professional services.</p>

<p>Contract for money had and received. Trial in the Superior Court, without a jury, before Blodgett, J., who found and ordered judgment for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Promissory Note — Principal and Agent — Action.</p> <p>If the president of a national bank for his own purposes obtains a promissory note from a third person without consideration, and the cashier of the bank, although without authority, discounts the note at the president’s request, and places the proceeds to the credit of the latter, who uses them for his own benefit, and does not disclose to the directors of the bank the character of the note or the nature of the transaction, the bank may maintain an action thereon against the maker of the note.</p>

Tort, for personal injuries occasioned to the plaintiff by having her band caught between the rollers of a steam ironing machine, known as a “ mangle.” Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in • substance as follows.

<p>Personal Injuries — Action— Conflict of Laws.</p> <p>If by the law of another State where a personal injury is suffered a recovery may be had there, an action may be maintained for the injury in this Commonwealth, although the plaintiff could not have recovered therefor, if the injury had happened here.</p>

<p>Tort, under St. 1887, c. 270, § 1, cl. 2, for personal injuries occasioned to the plaintiff, while in the employ of the defendant corporation as a freight handler, by the alleged negligence of the defendant’s superintendent. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Evidence tending to show the following facts was introduced. The men who worked in the freight-house, where the plaintiff was employed, were all under the general orders and supervision and control of an officer, known as the foreman of the house. The men were divided up into various sections or gangs of about half a dozen in each. The plaintiff belonged to section No. 1, and these men were to a certain extent under the orders of one of their number, Thomas Grady, who was known as the section boss or section foreman. The duties of the other members of the gang were chiefly in loading, unloading, and trucking freight, whether from cars or teams.</p> <p>On the evening of January 14," 1890, about half past five o’clock, it being dark, an express team belonging to Johnson and Company was driven to one of the doors of the freight-house, containing a bale of burlaps about six and one half feet long, nearly four feet wide, and nearly two feet high, weighing about 2,200 pounds. The team was an ordinary express wagon, having a flat bottom with no sides, except the rear part of the wagon, which had straight sides about a foot and a half high, in order to protect the contents of the wagon from the hind wheels, and had two springs behind and one in front. The front wheels were low enough to turn freely under the wagon. The wagon was about eight feet in length and four feet in width. No question was made that the wagon was in good condition. There was a tail-board, which at the time was let down nearly, but not quite, to the level of the floor of the wagon. The bale was resting on the rear part of the wagon, so that the end of it was partly over the tail-board, coming within about six inches of the end of the tail-board. When the wagon was backed up to the door the tail-board was slightly below the level of the sill of the door.</p> <p>The driver of the team and the door-man, named Riordan, not being able, on account of the weight of the bale, to unload it, Grady, the section foreman, was asked to send assistance for the purpose of unloading it, this being the ordinary custom in such cases. Grady addressed the members of his gang generally, and among them the plaintiff, directing them to go and help the teamster unload the bale, and in response to this direction all of the gang went and assisted in unloading except one who was at the time in another freight-house. The evidence was conflicting as to what part Grady took in the unloading, but the plaintiff’s evidence tended to show that Grady went with the men and remained during the entire time while they were unloading the bale, giving some orders in connection therewith; and that he and Croke, another member of the gang, equally gave signals to the men in the operation of unloading. It also appeared that, if Grady was present, he was in the freight-house all the time, and did not go out upon the team or upon the ground.</p> <p>Similar bales had frequently been brought to the house and unloaded, and the plaintiff had several times assisted in the process and was familiar with the operation and with the kind of team in which the bale was brought. According to the plaintiff’s evidence, the section foreman ordered him and Wheeler, another member of the gang, to get on the team at the further end of the bale and assist in pushing the bale forward, using hooks to grapple it, while the men in front should pry up the end of the bale by means of a truck, and others should grapple with hooks in front and pull. The first time the bale was pried up with the truck, the pressure on the rear of the wagon drove the wagon forward a few inches, while the plaintiff was standing on the front part of it. Grady then told the teamster to trig or block his wheels, and the teamster then descended to the ground, backed up the team, and went through the operation of trigging his wheels, and the unloading was resumed. Then the teamster again got off his wagon and lowered the tail-board until it was level with the floor of the wagon; the end of the tail-board then being within a few inches of the house, and six inches below the level of the sill. Some of the men in the door of the house then inserted the end of a truck into the end of the bale, bearing down on the truck, thus raising the end ; others inserted their hooks and pulled, and the plaintiff and Wheeler, standing in the wagon, inserted their hooks into the rear end of the bale and pushed. In this way the bale was advanced a few inches, and the operation was repeated several times, the truck being inserted under the end of the bale.</p> <p>About ten minutes was consumed in this way, during which time the bale had been moved so that about three feet of it rested upon the sill and floor of the freight-house, the other end still resting on the floor of the wagon. The floor of the wagon extended some two and a half or three feet behind the axle of the rear wheels, and the tail-board extended about one foot and a half farther. The spaces between the sides of the bale and the sides of the wagon were only a few inches, and not enough for a man to stand in. When the end of the bale had been carried three feet into the house, the plaintiff and Wheeler were standing at the rear corners of the bale, with their hooks inserted in the rear of the bale, and at the signal from Grady all of the men made one final effort to push the bale in the rest of the way, the men in the house at the same time prying the bale up so as to ease it over the sill. Just as they began their effort the bale and the men being on the wagon, as before stated, the rear of the wagon settled down and the bale fell between the house and the wagon, and the wagon shoved out into the street, both men falling to the ground with the bail, which fell over upon the plaintiff and caused the injuries complained of. It also appeared that there was a gang plank near by which might have been used, and which, if used, would have prevented the accident.</p> <p>The plaintiff testified that Grady checked the freight, and ordered the men in the gang where to load it; and that they received their orders from him.</p> <p>Charles E. L. Wheeler, called as a witness by the plaintiff, testified that Grady directed the members of the gang what to do, and no other person assumed to direct them when Grady was there ; that, when they had got a proper amount of freight which Grady thought ought to be loaded, he took the receipts and looked the freight over and saw that he got what the receipt called for, and then he put the initials and number of the car that was loaded on to that receipt, and directed the men what to do with it; that he directed the unloading of the bale at the time of the accident; and that it was the general practice of Grady, as well as of the other foremen, when a team had a heavy load, to send men to help take it off.</p> <p>Grady testified, for the defendant, that he was checking clerk for the defendant at the time of the accident; that he was connected with the gang of what they called section one, composed of five men, and was the “section boss”; and that his duties were to take receipts and check the freight into the cars, and see that it was loaded into the right cars.</p> <p>On cross-examination, he testified that these men obeyed his orders with regard to loading the freight into the cars; that he was the only person who gave directions about that; that it was -a part of his duty to see that it was loaded properly; that it was for the foreman of the house to decide which men should tip on and which men should wheel in ; that the witness had no power to arrange matters in that way with the men; that he merely checked the freight for them, and told them to load it; that if the foreman wanted to put a man tipping on the freight he could do so, and if he wanted to put a man in a car he could do so ; that the witness had nothing to say about it; that he had never given any such direction as that; and that he had told the men to wheel freight, and, if there was a man off, lie would take one of these and put him to tipping on freight until the regular tipper-on should come.</p> <p>• Grady further testified as follows :</p> <p>“ Q. Did the driver of the team make any request of you in regard to unloading the team ? A. Yes, sir ; he came down and asked me if I would not get him a man or two to help him get his bale off.</p> <p>“ Q. In consequence of that, what did you do? A. I turned round, and I said, ' A couple of you fellows go down and give this man a hand, and get his bale off.’</p> <p>“ Q. What did they do in consequence of that ? A. Some of them went down.</p> <p>“ Q. Did you go down there at all while these men were attempting to unload this bale ? Did you go down to the door where they were? A. Yes, sir; I went down there once or twice, I believe.</p> <p>“ Q. Did you give any directions to the plaintiff, or any of the men, with reference to the manner in which they should do that work at that particular time ? A. I don’t remember of giving any orders to any man as to what he should do.”</p> <p>Thomas Croke testified that, at the time of the accident, he was tipping freight upon the trucks; and that he and the other men in the gang were given their orders by Grady.</p> <p>At the close of the evidence, the defendant asked the judge to rule that there was no evidence to go to the jury, and to direct a verdict for the defendant. The judge declined so to do; and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed June 6, 1892, under Pub. Sts. c. 136, § 10, by the administrator de bonis non, with the will annexed, of the estate of William Gray, junior, deceased, against James S. Cunningham and James D. Thomson as executors of the will of Catherine H. Cunningham, deceased. Hearing, before Morton, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>William Gray, junior, died in August, 1886, and on the 6th of September following one Edward Cunningham was appointed administrator with the will annexed of his estate. There was found upon the books of Gray an account against Catherine H. Cunningham amounting to upwards of $13,000. Suit was brought by Edward Cunningham as administrator against Catherine H. Cunningham to recover that amount, and the writ was duly entered in the Superior Court on the first Monday of February, 1887. The defendant Thomson appeared for her in that suit. Subsequently, as attorney for her, he offered to consent to judgment for the plaintiff in that action for $10,000, provided no execution should issue thereon before June 1,1887. This was agreed to by Edward Cunningham, and judgment was entered on February 17,1887, a petition for leave to compromise having been in the mean time presented by him to the Probate Court and granted. Thomson represented to Edward Cunningham, that to pay the claim it would be necessary to sell land belonging to Catherine H. Cunningham; that a forced sale would result in a great sacrifice; that he needed until June 1 to bring the land to a market; that he would make payments on the judgment as fast as he sold the land; and that he thought it would all be paid by June 1. Induced by these representations and agreements, Edward Cunningham consented to the delay.</p> <p>On or about June 1, Thomson wrote to Cunningham as follows : “ It is right to inform you that Mrs. C. is unable to pay any part of yr judgment, which I was confident would by this time have been at least very much reduced. If you wish a mortgage of three acres of land for one year at 5 per cent it will be given. Of course it is open to you to proceed with your judgment, and that you may act your pleasure therein I will say that, although this will embarrass me, it cannot now wreck the estate. I will adjust myself to that emergency when it arises.”</p> <p>Thomson, however, testified that he had reason to believe that Cunningham would do nothing. Cunningham took this letter to his counsel, Mr. Richard Stone, who saw Thomson, who told him that he had been trying to sell the land and had failed, and expressed the desire that Cunningham should refrain from levying the execution, and he would endeavor to realize on the land as fast as possible, and pay on the execution. Thomson further urged upon him that the money was not needed for the distribution of Gray's estate, and that the judgment would carry six per cent interest. In consequence of these representations it was agreed that the execution should not be levied, and that the money should not be called for until needed for distribution by the administrator of Gray’s estate; and that in the mean time Thomson should sell the land as fast as possible and pay on the judgment. Mr. Stone saw Thomson occasionally after this, and this arrangement continued.</p> <p>In May, 1888, Thomson made a payment to Cunningham, on account of the judgment, of $2,000. Catherine H. Cunningham died in June, 1888, and on July 23 the defendants were appointed executors of hér will, which was duly proved. On June 28 the heirs and devisees of Catherine H. Cunningham signed a paper requesting and authorizing Thomson to keep the real estate in his charge and manage it as a joint estate. for four years, as he had been doing for the past eighteen months for the testatrix, and agreeing to sign no instrument affecting the land without communicating with him beforehand. Afterwards Thomson saw Mr. Stone and told him these facts, and also told him that the heirs and devisees had put the entire management of the estate into his hands for four years, and he had full authority to manage the estate as.before the death of the testatrix, and he desired that no proceedings should be taken on the execution, and he would pay from the proceeds of the land. Substantially the same thing was said a number of times after by Thomson to ■ Mr. Stone, and, in consequence of the representations and statements thus made, nothing was done to collect the judgment, or to cause a levy of the execution on the land.</p> <p>On November 22, 1889, Edward Cunningham died, and on January 2, 1890, the present plaintiff was appointed administrator de bonis non of Gray’s estate. In June of that year Thomson paid to the plaintiff $1,000 on account of the judgment, and in September of the same year he made another payment of $1,000.</p> <p>Nothing more was done until September 23, 1891, when the plaintiff requested of Thomson a settlement of the balance due, the estate of Gray having reached a point where it was necessary that the amount should be paid for the purpose of distribution. On the same day Thomson replied to the request as follows: “ The executors can pay you nothing, you must look to the heirs.”</p> <p>Several months elapsed, during which the plaintiff endeavored to procure a settlement from the heirs, but without success. There was no unreasonable delay in bringing this bill after the plaintiff received notice that the executors of Catherine H. Cunningham could not pay the balance due. The property of Catherine H. Cunningham consisted of real estate, and was worth at the time of her death more than $100,000 above all claims and encumbrances upon it, and above all her liabilities. The defendant James S. Cunningham was one of the heirs and devisees of Catherine H- Cunningham. He did not object to the agreement made by his co-executor Thomson. The defendants have not filed any account in the Probate Court as executors, and the estate of Catherine H. Cunningham is still unsettled.</p> <p>The plaintiff was employed by Edward Cunningham in April, 1887, to assist him in administering on the estate of Gray, and he continued in that employ until Edward Cunnningham’s death. He knew of the representations made to Edward Cunningham and to his counsel by Thomson, and of the agreement of Edward Cunningham in relation to proceedings to enforce the judgment. After his appointment as administrator, he refrained, in consequence of his knowledge of that agreement, from taking any steps to collect the judgment until the money was needed for distribution. A forced sale of the land upon execution would have resulted in a great sacrifice, and the delay in enforcing the plaintiff’s claim has been advantageous to Catherine H. Cunningham’s estate.</p> <p>If, upon the above facts, the plaintiff was entitled to recover, judgment was to be entered in his favor for $7959.31, and interest from September 8,1890, with costs; otherwise, the bill was to be dismissed, with costs.</p>

The following order was adopted by the House of Representatives on February 2, 1894, and thereupon transmitted to the Justices of the Supreme Judicial Court, who, on February 28, 1894, returned the opinions which are subjoined. Ordered, That the Justices of the Supreme Judicial Court be required to give their opinion to the House of Representatives upon the following important questions of law: — 1.