Volume 161 — Massachusetts Reports

<p>Tort, for the conversion of certain personal property. Trial in the Superior Court, without a jury, before Braley, J., who ruled that the action could not be maintained; found and ordei’ed judgment for the defendant; and, at the plaintiffs request, reported the case for the determination of this court. If the ruling was right, judgment was to be entered for the defendant ; otherwise, for the plaintiff. The facts appear in the >pinion.</p>

<p>Defective Highway — Inference of Want of Diligence by City.</p> <p>In an action against a city for injuries occasioned to the plaintiff’s horse and wagon, very early in the morning, by sinking into a hole in a street, where a trench had been dug for the purpose of laying a drain under a permit from the city, although there is evidence on the part of the city tending to show that the trench was properly filled and left in that condition on the afternoon preceding the accident, the jury will be warranted in finding that, by the use of reasonable care and diligence, the proper officers of the city might have known of the defect in time, to remedy it.</p>

Contract, by the executor of the will of William H. Ward, to recover back the amount of a tax assessed to him as such executor upon the stock in trade of Ward’s estate, on May 1, 1891, by the assessors of the defendant city, and paid under protest by the plaintiff. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, in substance as follows.

<p>Contract, to recover the amount of a subscription by the defendants, as copartners, for ten shares of stock in the plaintiff corporation. After the former decision, reported 156 Mass. 82, the case was tried in the Superior Court, before Bond, J.</p> <p>The jury returned a verdict for the defendants; and the plaintiff alleged exceptions, The facts sufficiently appear in the opinion.</p>

<p>Promissory Note — Discharge in Bankruptcy — New Promise by Debtor.</p> <p>If a creditor who has proved his debt, which is evidenced by a promissory note, and received a percentage thereof under composition proceedings in bankruptcy, delivers the note to the debtor as a loan upon his promise to return it, the subsequent return by him of the note does not, it not being so intended, amount to a new promise in writing by the debtor, within Gen. Sts. c. 105, § 3, (Pub. Sts. c. 78, § 3,) which will avoid the defence of a discharge in bankruptcy in an action upon the note.</p> <p>The mere payment by a debtor, who lias received a discharge in bankruptcy, of a sum on account of a debt which has been discharged, and which is evidenced by a promissory note, is not sufficient to raise the implication of a promise, within Pub. Sts. c. 78, § 3, such as will avoid the defence of the discharge in an action upon the note.</p> <p>A debtor, after his discharge in bankruptcy, wrote to his creditor, “ Enclosed please find our check for” a sum named “as an instalment of a long deferred promise; our regret is that it is not larger, but as opportunity presents itself you may be assured that you will not fail to receive tangible evidence of the purity of our intentions”; and later, “Enclosed please find our bill for” a sum named “receipted, together with our check for” another sum named “to be applied to old matters.” Held, in an action on the debt, that the letters did not contain a new promise in writing by the debtor, within Pub. Sts. c. 78, § 3, which would avoid the defence of the discharge.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, a constable of the city of Boston, by a defect in the defendant’s premises, upon which he had entered for the purpose of serving a civil process. Trial in the Superior Court, before Sherman, J., who directed the jury to return a verdict for the defendant; and, at the plaintiff’s request, reported the case for the determination of this court. If the ruling was right, judgment was to be entered on the verdict; otherwise, the verdict was to be set aside and the case to stand for trial. The facts appear in the opinion.</p>

<p>Sale — Breach of Warranty — Personal Injuries — Master and Servant — Defective Appliance — Damages.</p> <p>If A. buys of B., an experienced manufacturer, with whom he has long dealt, an appliance which he is assured is the best for the purpose for which it is intended, which is of a kind that he has used before in his business, and which, while being used in the proper and ordinary manner in doing the work for which it is designed, breaks, by reason of a hidden flaw which could not have been detected upon a careful inspection, within two months after it is put in use, while in the ordinary course of wear it should have lasted for years, and the accident injures, while in the regular discharge of his duties and without his fault, a servant of A., who, without suit and without notice to B., compensates the servant for his injuries, A. cannot recover, in an action against B. for breach of warranty in the sale, the amount so paid as compensation to his servant.</p>

<p>Tort, under Pub. Sts. c. 112, § 212, by the administrator of the estate of Daniel J. Buckley, for causing his death,' while an alleged passenger on the defendant’s railroad. Trial in the Superior Court, before Dewey, J., who directed the jury to return a verdict for the defendant, and, at the request of the parties, reported the case for the determination of this court. If the ruling was right, judgment was to be entered for the defendant; otherwise, the case was to stand for trial. The facts appear in the opinion.</p>

<p> Devise and Legacy. </p> <p>A testator, at the time Ms will was made, had four sons, four daughters, and children of a deceased daughter living. By his will, he gave two equal ninth parts of the residue of his estate to his two sons A. and B., in fee, and the other seven equal ninth parts thereof to A. and B. and the husband of the deceased daughter in trust, to invest the same and pay the income of one of such equal ninth parts respectively to each of his four daughters, to each of his two sons C. and D., and to the children of the deceased daughter, during their respective lives, “ and if either of the beneficiaries of the said trust shall die leaving no issue surviving, then it is my will that the portions herein given for the benefit of said deceased be equally divided among the others, the issue of any deceased child taking the same proportion as that the parent would have taken if living, and the children of ” the deceased daughter “ taking an equal share with one of her said eight brothers and sisters.” C. died after the testator’s death, leaving no issue. Held, that C.’s share of the trust fund was to be divided into eight equal parts, and A. and B. were each entitled to one of such parts.</p>

<p>Grade Crossing — Land Damages — Counsel Fees — Expenses of Selectmen.</p> <p>An auditor appointed under the provisions of St. 1890, c. 428, § 7, found that certain sums of money paid by a town for counsel fees, and for extra services of the selectmen in defending and settling claims for damages for land taken by the town for the purpose of abolishing a crossing at grade of a public way therein and a railroad, were just and reasonable. Hdd, that these items were improperly disallowed by the Superior Court.</p>

<p>Neglect of Owner of Hotel to provide Means of Escape from Fire — Liability to Action — Statute.</p> <p>The owner of a hotel cannot be said to have violated the provisions of St. 1888, c. 426, § 1, so as to be liable to an action, under § 12, for injuries occasioned by his neglect to provide proper and sufficient ways of egress or other means of escape from fire, until after the inspector of buildings has decided what ways of egress or means of escape are in his opinion necessary, and has given notice thereof in writing to the owner, specifying the same, and the owner has neglected or refused to comply with the order of the inspector.</p>

Contract, for the breach of the terms of a lease. Trial in the Superior Court, without a jury, before Thompson, J., who allowed a bill of exceptions, in substance as follows.

<p>Habeas Corpus — Petition by Stranger — Bringing question before full Court.</p> <p>Where a person imprisoned, who is a minor or a person of unsound mind, is brought before the court on a writ of habeas corpus issued in his behalf on the petition of a stranger who shows no interest in the controversy, a next friend or guardian ad litem may be appointed by the court, and after such appointment the petitioner cannot control the proceedings, and has no right to appeal from the decision of the court.</p> <p>As there are no longer any terms in the Supreme Judicial Court, all proceedings on habeas corpus before a single justice may now be regarded as before a court held by a single justice, and questions of law may be reserved or reported to the full court as in other proceedings before the court held by a single justice.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, a boy eighteen years old, while in the defendant’s employ, by having his arm caught in a machine upon which he was working, on October 4, T884. Writ dated October 3, 1890. At the trial* in the Superior Court, before Blodgett, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Rule of Superior Court — General Order to Clerk ■— Power of Clerk to enter Judgment in Action pending Appeal.</p> <p>Under the 27th Rule of the Superior Court, providing that “ on the first Monday of every month judgment may be entered, in all actions ripe for judgment, under a general order of the court,” and an order passed by the court and addressed to tlie clerk, “ that judgment be entered on the first Monday of every month . . . in all actions pending in said court which are ripe for judgment,” the clerk has no power to enter judgment in an action in which an appeal is pending from the disallowance of a motion to take off a default.</p>

<p> Creditors’ Bill—Husband, and Wife—Premature Suit. </p> <p>A wife filed a petition against lier husband in the Probate Court, under Pub. Sts. c. 147, § 33, and an attachment of his property was ordered by that court, but none could be found which could be attached. Before a decree had been rendered by the Probate Court on the wife’s petition, she filed a bill in equity to reach and apply certain mortgages and mortgage notes of her husband which could not be attached or taken o.n execution in a suit at law, and to hold them until she could obtain a decree in the Probate Court, and to then apply them in satisfaction of the decree. Held, that until it was decided by the Probate Court that she was living apart from her husband for justifiable cause, and was entitled to be supported by him under Pub. Sts. c. 147, § 33, and a decree entered in her behalf for a definite sum of money, there was no debt due to her from her husband, and she was not a creditor within the meaning of Pub. Sts. c. 151, § 2, cl. 11, and § 3.</p> <p>A court of equity cannot decide whether a wife is living apart from her husband for justifiable cause, and is entitled to be supported by him under Pub. Sts. c. 147, § 33.</p>

Indictment for the larceny, on March 30,1893, of a watch and ring from one Thomas Dunn. At the trial in the Superior Court, before Braley, J., one Ellen Sullivan, a witness for the government, was asked on cross-examination, “ Were you ever in jail in Essex County?” The judge refused to allow the question to be answered, unless the record of a conviction of the witness should be produced. The defendant’s counsel replied that he had no such record to produce.

Complaint, to the Police Court of Lowell, for keeping and maintaining a certain tenement in Lowell used for the illegal sale and illegal keeping of intoxicating liquors, between May 1 and November 1, 1892. Trial in the Superior Court, on appeal, before Braley, J., who allowed a bill of exceptions, in substance as follows.

<p>Contract, for the value of a trunk which was destroyed by fire while stored in the defendant’s railroad station at Newburyport. At the trial in the Superior Court, before Bond, J„ there was evidence tending to show that on the evening of March 2, 1892, the plaintiff, having paid his fare, took passage on one of the defendant’s trains from Boston to Newburyport, and that he carried with him on the same train as baggage, duly checked, a trunk containing personal effects only. He arrived in Newburyport at about a quarter before eight in the evening, and proceeded to Amesbury, where he resided. As the night was stormy he left his trunk in the baggage-room of the defendant’s railroad station in Newburyport, intending to send for it the next day. During the night the railroad station was burned, and the plaintiff’s trunk destroyed. It appeared that the fire originated in a closet in the corner of the baggage-room, in which was kept a barrel of kerosene oil, a barrel of lantern oil, some clean cotton waste, and under the barrels some oily cotton waste which had been used.</p> <p>It was agreed that a notice like the following had, for some time prior to March 2, 1892, been posted in the stations of the defendant, and the plaintiff testified that he had seen it posted in the station at Salisbury Point, which was several miles from Newburyport: “ Boston & Maine R. R., notice to passengers. Storage of baggage. A charge for storage of baggage will be made on all baggage remaining unclaimed in the baggage rooms of this road more than twenty-four hours after its arrival at the station to which it is checked. For each piece of baggage, the charge will be twenty-five cents for the first twenty-four hours, or fraction thereof, after the expiration of the specified time of free storage, and ten cents for each additional twenty-four hours, or fraction thereof. The twenty-four hours of free storage will begin at midnight of the day baggage is received, and the charge for storage will begin at midnight of the following day.”</p> <p>This was all the material evidence in the case. The judge, at the defendant’s request, ruled that the action could not be maintained, and directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Petition, filed on November 17, 1893, for a writ of habeas corpus to the Commissioners of Public Institutions of the City of Boston.</p> <p>Hearing before Lathrop, J., who, at the request of the petitioner, adjouz’ned the case into the full court, and reported it to that court for its determination on an agreed statement of facts, in substance as follows.</p> <p>The petitioner is the mother, surviving parent, and duly appointed guardian of ,Mary Wares, a minor, for whose custody the petition is brought. The child was committed to the custody of the Commissioners of Public Institutions of the City of Boston, by virtue of a mittimus issued by the municipal court of the city of Boston on July 7, 1891, under the provisions of the Pub. Sts. c. 48, arid Sts. 1882, c. 181, and 1886, c. 330, during her minority, or until otherwise discharged by due course of law, and the child was placed by them, acting under the authority of the statutes, in a respectable family, where she now is. Prior to the filing of this petition the mother applied to the commissioners for the custody of her child, and, after a full hearing, the application was denied.</p>

<p>Trust — Will.</p> <p>A testator by the fourth article of his will left a sum of money in trust to pay the income to his wife during her life, and after her death to distribute the principal to his children. By the fifth article he established a trust for the shares of his daughters, and by article six he provided that “All moneys herein directed to be given to each of my sons A. and T. shall be held, invested, and managed by my said trustees in separate trusts, and the net income of his several share paid to each of said sons ” during life, with remainder over. By a subsequent article provision was made for another son, and by article nine the residue of the property was given to trustees in trust to invest and manage the same, paying the income to all the children equally, and on a certain day, or sooner if the fund was large enough to give to each child a “ sum of money amounting to not less than $50,000,” to distribute the principal among the children. In a later article he authorized his trustees to sell the trust property. Held, that the share oí A. in the residue, as given in article nine, was to be held for him in trust under the provisions of article six, and that he was not entitled to have it paid over to him absolutely.</p>

<p>Verdict ordered by Judge — Authority of Partner — Fraud — Notice.</p> <p>Where a jury have returned findings upon questions submitted, but have separated without agreeing on a verdict, the presiding justice may nevertheless order a verdict if upon the findings and the whole evidence either party has a clear right in law to a verdict.</p> <p>If by a private agreement the authority of one partner to borrow money for a firm is limited to loans on notes payable to and indorsed by the other partner, and a bank has discounted such notes for the firm, the form of the notes is material but not conclusive evidence upon the question whether the bank should be charged with notice of the limitation of authority in a suit brought by it on a subsequent note made payable to the bank and secured by collaterals.</p> <p>If the president of a bank has noticed indications in the bank account of a firm that the firm was not prosperous, and had seen one member of the firm, wlm carried on its business in Boston, the worse for liquor, and knew that the other member of the firm resided in another city and paid but little attention to the business of the firm, these are suspicious circumstances, but consistent with good faith in taking a note of the firm for value before maturity, and are not enough to justify charging the bank with notice of any infirmity or taint in the transaction.</p>

<p>Writ of entry, against John S. Linnehan and Bessie Linnehan, his wife, to recover possession of certain premises in Chelsea. At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict for the demandant; and the tenants alleged exceptions, which appear in the opinion.</p>

<p>Bill in equity, filed January 5, 1898, against Joel R. Wyman and Irving A. Davis, alleging that on May 22, 1888, the defendant Wyman, who was seised in fee of a certain parcel of land with the buildings thereon; situated in Chelsea, conveyed the estate in mortgage to one Eben Hutchinson to secure the payment of Wyman’s note of even date for $2,000 in three years from its date, and Hutchinson until on or about October 20, 1890, remained in possession of the mortgage and note; that prior to September 14, 1888, Wyman, having purchased the adjoining lot of land, and desiring to secure a loan of $2,600 upon both lots, and to discharge the mortgage above described, applied to Hutchinson for a loan of $2,600 upon the two lots; that thereupon Wyman executed and delivered to Hutchinson a mortgage on both lots to secure a note for $2,600 payable to Hutchinson, which mortgage was dated September 14, 1888, and afterwards recorded; that upon delivery of the mortgage and the note Hutchinson paid to Wyman the sum of $800, and for the further consideration of the mortgage acknowledged to have received full payment of the $2,000 note dated May 22, 1888, and discharged the mortgage to secure the same, and further agreed to have that mortgage discharged upon the record and to deliver up the note of $2,000 ; that by a deed of assignment dated September 22, 1888, and recorded, but simultaneously with the delivery of the mortgage by Wyman to Hutchinson for $2,600, Hutchinson assigned the $2,600 mortgage to the plaintiff, and received therefor the sum of $2,600 in money, $600 of which was paid by him to Wyman'as above stated, the balance of $2,000 being for the purpose of cancelling and discharging the previous note and mortgage of $2,000 signed by Wyman and at that time owned and held by Hutchinson; that thereafter Wyman, until the month of December, 1892, continued semiannually to pay interest on the $2,600 mortgage to the plaintiff; that Hutchinson never discharged upon the record the mortgage for $2,000, nor delivered up to Wyman the $2,000 note which had been paid, but afterwards executed a deed of assignment of that mortgage, dated October 20, 1890, to the defendant Davis, and at some time unknown to the plaintiff delivered to Davis the mortgage note; that the assignment was without the knowledge or consent of either Wyman or the plaintiff, who had no knowledge of the existence of the previous mortgage, and was made fraudulently, and Wyman never knew of the assignment of that mortgage until after Hutchinson fled from the Commonwealth, in May, 1892; that Davis contended that the mortgage for $2,000 so assigned to him by Hutchinson existed as a valid security for the mortgage note, prior to and availing against the plaintiffs mortgage, the same not having been discharged on the record, and had advertised the premises therein described for sale at public auction for the purpose of foreclosing the $2,000 mortgage; and that the plaintiff was ready and willing and offered to pay any sum that might be found due upon Davis’s mortgage, that availed against or was prior to the plaintiff’s mortgage.</p> <p>The prayer of the bill was that Davis might be restrained by injunction from further proceeding with his sale as advertised; that a decree might be entered compelling him to deliver up for cancellation the mortgage so held by him, and to execute a release and discharge of the same; and for general relief.</p> <p>Hearing before Knowlton, J., who found the following facts. Wyman, at the time of making the second mortgage, applied for a loan of $600 in addition to the loan for $2,000 which he had before obtained. By arrangement with Hutchinson the second mortgage and note were made for $2,600, and $2,000 of that sum was by agreement of parties appropriated to the payment of the note of May 22, 1888, for that sum, and to the discharge of the first mortgage, and as between the parties that note was then paid, although it remained in Hutchinson’s hands. On October 20, 1890, Davis bought the first note and mortgage, and paid $2,000 therefor, the accrued interest appearing by indorsements on the note to have been paid; and he bought in good faith, in the belief that the note and mortgage were good and valid obligations in the hands of Hutchinson. The assignment of the mortgage to the plaintiff was recorded immediately after its date, but the assignment to Davis was not recorded until July 9, 1892. There is due Davis the whole principal of the note of $2,000, and interest from May 22, 1892. The first of the mortgages was recorded on May 25,1888, and the second on September 25, 1888.</p> <p>A decree was thereupon entered, sustaining the validity of the mortgage held by Davis, and ordering that, upon the payment by the plaintiff to him within a time limited of the sum of $2,000 and interest from May 22, 1892, Davis should release and discharge the premises from the mortgage; and that, in default of such payment, Davis should hold the premises free and discharged of the mortgage, and the bill should be dismissed.</p> <p>The plaintiff appealed to the full court.</p>

<p>Bill in equity, filed in the Superior Court on July 22, 1893, for the cancellation of a mortgage of land in Chelsea and promissory note secured thereby, given by the plaintiff to Eben Hutchinson, and by the latter assigned to the defendant. At the hearing, a decree was ordered dismissing the bill; and the plaintiff appealed to this court. The facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, on the evening of December 6, 1890, by an alleged defect in Prentiss Street, in the defendant city.</p> <p>At the trial in the Superior Court, before Maynard, J., the plaintiff’s evidence tended to show an accumulation of ice and snow on the street in question, which was a defect, and in no way protected by any sand, ashes, or other substance.</p> <p>The defendant called as a witness one Kanze, who testified, in his direct examination, that on. December 6, 1890, at six o’clock in the evening, there was a small coating of ice over the sidewalk, very thin at the place where the defect was alleged to exist, and he put some sifted ashes on it. On cross-examination, he was asked when it was, after December 6, 1890, that he was first asked the question as to what the condition of the sidewalk was on that day, and he answered, “To the best of my recollection, I think it was either the 29th or 31st of May, 1893,” the date upon which he was called as a witness at a previous trial of this case.</p> <p>In redirect examination of Kanze, the counsel for the defendant asked the following question : “ Let me refresh your recollection whether or not Mr. Devitt came to see you and had some talk with you?” To which the witness answered, “I think Mr. Devitt did come to see me, I am not positive.” He was then asked, “ You don’t remember the date of that?” and answered, “ No.” The following question was then put to him: “ Whether or not you did not, somewhere about the 12th of January, 1891, tell Mr. Devitt that you remembered that the sidewalk was asked that night ” (meaning the night of the accident). To this question the plaintiff objected, but the judge admitted it, and the witness answered, “ By you refreshing my memory, I believe I did ”; and the plaintiff excepted.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract, for money paid “by the plaintiff to the defendants’ use, at their request,” in the purchase of a stable in Norwood. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions to the exclusion of certain evidence, the nature of which appears in the opinion.

Contract, against the executor of the will of Mary R. Popkin, for services rendered at her request. The writ, which was dated May 18, 1891, and returnable to the Superior Court for Suffolk County, described the plaintiff as “ of Chelsea ” in that county.

<p>Foreign Judgment — Jurisdiction — Presumption.</p> <p>In the absence of anything to show the contrary, there is a presumption that the common law of another State is like that prevailing here; but this presumption does not extend to the statutory law of another State.</p> <p>Where a question of the law of another State is in controversy, the party upon whom the burden lies will fail unless evidence is produced to sustain his view; and statutes and decisions which were not put in evidence at the trial cannot be used for the first time at the argument of the case before this court for the purpose of proving the law of such State.</p> <p>It does not fall within the general jurisdiction of a court of chancery, independently of statutory authority, to annul a marriage for the reason that, when it was contracted, the wife had a former husband living; and there is no presumption that such a court of another State had jurisdiction to entertain a suit of that nature, or in such suit to pass an order for the payment of alimony pendente lite, or to enter a final judgment for arrears of alimony, counsel fees, and costs; but the existence of the jurisdiction must be proved at the trial of a suit here to obtain an execution upon the judgment.</p>

<p>Writ of Error—Validity of Sentence — Statute.</p> <p>A sentence to confinement in the house of correction for the term of two years of a person convicted, under Pub. Sts. c. 205, § 4, of endeavoring to “ procure another person to commit perjury, though no perjury is committed,” the punishment prescribed for which is imprisonment in the state prison not exceeding five years, or in the jail not exceeding one year, is not erroneous, under c. 215, §§ 19, 20; and, although a failure to include in the sentence solitary imprisonment, as prescribed by c. 215, § 23, is error, if such error is not insisted upon the judgment will be affirmed.</p>

<p>Insurance against Employer’s Liability for Personal Injuries to Employees — Construction of Policy — Evidence — Custom,.</p> <p>An application for insurance against an employer’s liability for personal injuries to bis employees was fora “ policy to be based upon the following statement of facts which are to be considered as warranties,” among which were the following: “ The employer’s address is 240 Ruggles St., Boston. The employer’s works are situated at (state all) as above and where cutting ice. The trade or business is ice-dealers. The operations carried on by the work-people are cutting and handling ice. The machinery in use is such as is necessary in cutting ice. There is no information tending to vary the risk, except as herein stated — No. The insurance is to cover the expenditure in wages of five thousand dollars.” Upon this application a policy was issued in consideration of a premium which was therein stated to be “ based upon the estimated yearly pay-roll of the employer, amounting to $5,000,” and which also recited that the statements in the application “ the employer warrants to be true, and agrees shall be incorporated herein ”; and further stated that “ the sums paid to the employer shall be for personal injury, within the meaning of this policy, caused to any employee in his service while engaged in the employer’s work in any of the occupations or at any of the places mentioned in the schedule hereto,” which contained the following: “ Description of occupation of employees: All operations connected with the business of ice-dealers.” “ Places at which employees to whom wages are paid are employed: At 240 Buggies Street, Boston, Massachusetts, and elsewhere in the service of the employer.” Held, that injuries caused to employees of the assured by the fall of an ice-house, while in process of construction by him, not in the season for cutting ice, were not within the policy. Held, also, that evidence that it was customary for persons in the ice business to erect their own ice-houses was immaterial.</p>

<p>Personal Injuries — Railroad — Master and Servant — Assumption of Risk — Action.</p> <p>In an action against a railroad corporation for personal injuries occasioned to A., who was in the defendant's employ as a track repairer, the plaintiff’s evidence tended to show that A. and three other track repairers, one of whom acted as foreman, were sent to do work on the tracks, taking with them a small platform car provided with handles at each corner for lifting or pushing it, on which to carry tlieir tools ; that, as they were proceeding on their way, all being engaged in pushing the car, a “ wild” engine, so called, running outside of any schedule time, and of which the men had had no notice, came around a curve in the railroad behind them about two hundred and twenty-five feet away; that, owing to the curve, the engine could not have been seen by the men any sooner, although the foreman kept constant watch for any train approaching in either direction ; that they heard no whistle, or bell, or other warning, until the engine was within sixty feet of them, when two short whistles were given; that as soon as the engine was discovered the men made a motion to lift the car off the track, but the foreman told them not to do so but to give the car a push and get out of the way; and that thereupon all the men gave the car a hard push, and the other men jumped to one side and were not harmed, but A., whose movements were not observed by the others, was struck by the engine and injured. It appeared in evidence that it was a part of the duty of trackmen to look out for “ wild ” engines; and that they had no other means of protection except to take care of themselves. One of the defendant’s rules provided that “ wild trains . . . must run cautiously around curves and over grade crossings, looking out for track-men.” Held, that the rule-had reference to the safety of the train, and not of the trackmen; that the court could not say that A. was subjected to any danger beyond that of which he took the risk; and that the action could not be maintained.</p>

<p>Contract, upon a promissory note for $665.34, dated September 6, 1890, payable six months after date to the plaintiff, and signed by the defendant. At the trial in the Superior Court, before Richardson, J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Eviction — Construction of Lease — Defence.</p> <p>A lease of a building contained the following clause: “ Provided always, that in case the premises or any part thereof shall, during said term, be destroyed or damaged by fire or other unavoidable casualty, so that they shall be thereby rendered unfit for use and habitation, then and in such case the rent hereinbefore reserved, or a just and proportionate part thereof, according to the nature and extent of the injury sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation, and in case of such destruction or damage, or a like destruction or damage by any taking or appropriation by public authority for public uses, then the lessor, his heirs or assigns, may terminate this lease.” Held, in an action for an eviction of the lessee by the lessor, that the fact that the building was destroyed or damaged by fire so that it was thereby rendered unfit for use and habitation was a defence.</p>

<p>Variance between Judgment and Execution caused by Error of'Clerk of Court — Allowance of Amendment to Execution on Motion in subsequent Action in same Court.</p> <p>The Superior Court has power, where there is a variance between the judgment and the execution issued thereon in an action, which is found to have been caused by a clerical error of the clerk of the court, to allow an amendment, substituting in the execution the name of “A., administrator with the will annexed,” for the name “ A., special administrator,” so as to make the execution accord with the judgment; and it is no objection to the allowance of the amendment that the motion therefor was not made in that action, but in a subsequent action to recover land which was attached in the original action as having been fraudulently conveyed to the present defendant, and upon which the execution was levied, both actions having been brought in the same court for the same county.</p>

Tort, for personal injuries occasioned to the plaintiff, while in the defendants’ employ, by the alleged negligence of the latter. Trial in the Superior Court, before Mason, C. J., who, at the defendants’ request, ruled that the action could not be maintained, and ordered a verdict for the defendants; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Dower— Widow’s Right after Twenty Years from Husband’s Death without continued Occupancy of Land — Statute —Bar.</p> <p>Where a widow has not continued to occupy, with the heirs of her deceased lms-. band, land of which he died seised, or to receive her share of the rents and profits thereof, her right of dower is not saved, under Pub. Sts. c. 124, § 13, by the fact that she occupied the land and received the rents and profits with the heirs for several years, if her writ is not brought when she ceases to occupy the land or to receive the rents and profits, and not until more than twenty years after his death, but is barred by § 14.</p>

Two ACTIONS OF TORT, for personal injuries occasioned to the plaintiffs by the alleged negligence of the defendant. The cases were tried together in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, in substance as follows. The plaintiffs were injured by being thrown from a buggy near Hapgood’s Crossing, so called, which is about half a mile from the West Acton station, and between it and the Littleton station of the defendant’s railroad.

Contract, by the administratrix of the estate of Fred L. Keene, upon a policy of insurance against accident, issued by the defendant to the intestate, who was killed while crossing: the tracks of the Old Colony Railroad Company at Brockton, on June 4,.1891.

<p>Personal Injuries—Master and Servant — Dangerous Machine — Risks of Employment — Action — Evidence — Custom.</p> <p>When a person enters the service of another, he impliedly agrees to assume all the obvious risks of the business, including the risk of injury from the kind of machinery then openly used; and it is immaterial whether he examined the machinery before making his contract or not.</p> <p>If the proprietor of a factory has in use a projecting set screw for holding the collar on a shaft upon which is a pulley, although there is a safer kind of set screw in common use, he owes no duty to a person entering his employ to box the pulley or shaft, or to change the set screw for a safer one.</p> <p>A person who was over forty years old and had had considerable experience was employed in a factory to haul piles of soft, loosely coiled hemp along the floor through a narrow space betneen a machine and rows of this hemp. The machine was all boxed in except the end of the shaft and two pulleys thereon projecting from one side. One of the pulleys was fixed tight to the shaft, and the other was loose ami held in place by a collar flush with the end of the shaft, and fastened by a set screw. The screw and shaft stood about three and a half feet from the floor, and were left exposed. The collar and end of tile shaft were round and smooth, but the set screw had a sharp-cornered square head, and stood out perpendicularly from the collar about an inch. He did not know of the set screw, which could not he seen when the shaft was revolving, but whs plainly visible when the shaft was at rest; but he was well a ware of the danger from the moving pulleys ami shaft. While passing the machine in performing his work, he came in contact with it and was injured. Held, that he could not maintain an action against his employer for the injury.</p> <p>In an action for personal injuries occasioned to the plaintiff, while employed in the defendant’s factory, by coming in contact with a machine having a dangerous device, which was in use when lie entered the employment, evidence of a custom in other factories using similar machines to guard the device is immaterial.</p>

<p>Equity— Conveyance of Land — Memorandum of Sale— Trust — Laches — Statute of Limitations — Bar.</p> <p>The description, in a memorandum of sale given by A. to B. of the property sold, as “my right in B. R.’s (my father) estate,” if the only real estate which B. R. owned was his homestead in a certain town, which he devised in equal shares to A. and B., is sufficient, within the statute of frauds, Pub. Sts. c. 78, § 1.</p> <p>A homestead estate was devised in equal shares to A. and B., children of the testator. In 1876, B. signed a memorandum of sale of his share of the estate to A., who thereupon paid B. the price named in the memorandum, which stated no time for performance, and entered into possession of the estate, made permanent improvements thereon, and continued in possession thereof. The testator left debts to a considerable amount and personal property insufficient to pay them, and A. paid the same and discharged the estate from them. In a correspondence between A. and B., the latter expressed his willingness more than once, and as late as 1885, “ to stand by ” the agreement of sale, and did not refuse to convey to A. until 1889. Held, upon a bill in equity brought in 1892 by A. against B. to compel a conveyance of B.’s share of the estate to A., that B. held the legal title as trustee for A.; that the defence of loches had no application ; that the statute of limitations did not operate as a bar: and that the bill could be maintained.</p> <p>The entry of judgment for the tenant in a real action, in which he pleaded nul disseisin, is not a bar to a bill in equity by the demandant, to compel the tenant to convey the same land to him, upon the ground of an implied trust arising out of an agreement to sell the land.</p>

<p>Bill in equity, filed in the Superior Court, as amended, on April 13, 1893, by Bridget Mulcahy and Daniel Mulcahy, her husband, against Joseph B. Fenwick and Minnie L. Fenwick, his wife, to compel the defendants to discharge a mortgage and surrender a promissory note secured thereby. The bill alleged, and the answer denied, that one Eben Hutchinson was the agent of the defendant J. B. Fenwick, and as such agent received and collected from the plaintiff the principal and interest of the mortgage. Hearing before Richardson, J., who found the following facts.</p> <p>In or about the year 1885 the plaintiff, Mrs. Mulcahy, became owner in her own right of a parcel of land, with the buildings thereon, situated in .Chelsea. Her husband, Daniel Mulcahy, transacted all the business relating to the estate for her, she signing all deeds and documents whenever it was necessary by making her mark, not being able to read or write. About December 1,1888, when the plaintiffs were erecting a house on the land, Hutchinson, who was an attorney at law, went upon the premises and asked Mulcahy if he desired to borrow some money. Mulcahy replied that he might want some money in a few days. Shortly afterwards Mulcahy called at Hutchinson’s office in Chelsea, and the result of the interview between Mulcahy and Hutchinson was that Hutchinson agreed to lend the plaintiffs $1,100 in money, and also to assume and pay a mortgage of $1,700 held by Slade and Griffin upon the estate of the plaintiffs, and Mulcahy agreed that the plaintiffs would give Hutchinson a note for the $2,800, secured by a mortgage on the estate. In pursuance of this agreement, on or about December 7,1888, Hutchinson lent the plaintiffs $1,100, paying the same in several sums at different times, and later Hutchinson paid and discharged the mortgage of $1,700, and on December 7, 1888, the plaintiffs signed a note for $2,800, and executed a mortgage upon the land in Chelsea, for a like sum as security for the note, and gave the note and mortgage to Hutchinson. The note was payable to one Henry H. Letteney “ or order,” in three years from its date, and by the mortgage the plaintiffs covenanted to pay the debt to Letteney “ or his executors, administrators, or assigns.” Letteney executed an assignment of the mortgage and note, on December 8, 1888, to Joseph B. Fenwick, one of the defendants, which recited that he did “ hereby assign, transfer, and set over unto the said Joseph B. Fenwick the said mortgage deed, the real estate thereby conveyed, and the note and claim thereby secured.” The terms and conditions upon which the money was lent were fixed by Hutchinson and Mulcahy, and without the knowledge of Fenwick, excepting that Fenwick had asked Hutchinson to get a mortgage of $2,800 for him, and had been told by Hutchinson that he had a mortgage or would get one for him. The note and mortgage were drawn by Hutchinson, or one of his clerks, and were executed by the plaintiffs at his office, and left there with Hutchinson, and the mortgage was recorded by Hutchinson on December 7, 1888, and the assignment was recorded by him on December 13,1888. The mortgage and assignment were taken from the registry by Hutchinson about ten days after they had been left there to be recorded, and, together with the note and an insurance policy, were delivered by. Hutchinson to Fenwick, who has ever since retained possession of them : and the sum of $2,800 was given by Fenwick to Hutchinson at about that time.</p> <p>Hutchinson was the only person whom the plaintiffs believed to have any interest in the note. The plaintiffs never had any talk with Letteney until after Hutchinson had absconded, and they never had any conversation with Fenwick until about July, 1892, when Fenwick for the first time stated to them that he held a mortgage upon their premises. Mulcahy paid to Hutchinson the interest on the note of $2,800 from time to time, and also the principal sum in instalments, on June 19, 1890, November 7, 1890, and March 17, 1891, respectively, and received therefor receipts, the signatures to the same being in the handwriting of Hutchinson. At the times when Mulcahy made the payments to Hutchinson, he saw Hutchinson have a note with the figure $2,800 in the left-hand corner, and his own signature at the bottom, and Hutchinson appeared to write on the back of the note, saying to Mulcahy, “ You don’t need a receipt ; this indorsement will answer.”' Fenwick received from Hutchinson the sums of money indorsed on the back of the $2,800 note held by Fenwick, amounting to $588, and received no more money from any source on account of the note. These indorsements were all in his handwriting, and were made by him on or about the dates when the various sums of interest were paid to him by Hutchinson. If the statements of Hutchinson to Fenwick are admissible in evidence, it was shown and admitted that he stated to Fenwick, at the time that he made the first payment of interest, that he, Hutchinson, would see that Fen-wick received his interest. No talk ever took place between Fenwick and Hutchinson in regard to payments of any part of the principal. Letteney was a clerk or scrivener in Hutchinson’s office, and had no pecuniary interest whatever in the note and mortgage, and no part of the consideration came from him or through his hands, and he simply allowed his name to be used at Hutchinson’s request, as he was accustomed to do. Fenwick never, in express terms, authorized Letteney or Hutchinson to collect any part of the principal. Mulcahy never had any conversation with Hutchinson or Letteney as to why the mortgage was made to run to Letteney instead of to Hutchinson.</p> <p>In July, 1892, Fenwick called at the plaintiffs’ house and informed them that he held a mortgage for $2,800 on their estate. That was the first notice that the plaintiffs had that Fenwick, or any one except Hutchinson, ever had an interest in the note and mortgage, although Fenwick and Mulcahy both lived in Chelsea, and Fenwick knew where Mulcahy lived. When the note for $2,800 was delivered by Hutchinson to Fenwick it was not indorsed, and remained unindorsed until after its maturity, in January, 1892, Fenwick supposing that he had a good title to the note; after the maturity of the note, he took it to Letteney and requested him to indorse it, which he did, without objection and without consideration.</p> <p>The assignment from Letteney to Fenwick was taken by Fenwick without question, he having confidence in Hutchinson on account of his official and professional standing. The assignment was drawn in Hutchinson’s office, and executed there by Letteney at Hutchinson’s request and in his presence. Letteney had no interest in the assignment, received no part of the consideration for it, and none of it passed through his hands. Mulcahy executed the mortgage to Letteney because Hutchinson presented it to him for his signature, and Fenwick received the mortgage from Letteney because it was assigned to him, and without inquiry. The defendant Mrs. Fenwick took an assignment from her husband of the mortgage and note in the usual form, about August 1, 1892, without consideration, and through a third person named McVey. About August 1, 1892, the plaintiffs requested the defendants to execute a discharge of the mortgage and to surrender the note, and they refused to do so.</p> <p>Upon the above facts, the case was reserved for the consideration of this court.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. The declaration contained two counts, the first, which was at common law, alleging that “ said injury was due to the negligence of the defendant, by his foreman and agent, in setting the plaintiff to work on a machine which required an amount of skill which he knew the plaintiff did not possess, and by not notifying the plaintiff of the dangers and perils incident to the use of said machine ”; and the second, which was under the employer’s liability act, St. 1887, c. 270, § 1, cl. 2, alleging that the plaintiff “ was, while in the exercise of due care, injured by a circular saw, upon which he was set to work by the negligence of some person in the service of the defendant intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, and who knew the dangerous character of the above described machine.” Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to prove the following facts.</p> <p>The plaintiff, who was twenty-six years old, was in the employ of the defendant as a laborer, carrying lumber, and on December 24, 1891, was by the defendant’s foreman, Duncan Rideout, directed to work upon a circular saw, called a track saw, sawing butternut wood, saying, “ I want you to saw that to the best of your ability; the wood is bad and knotty, and take the best wood out of it that you can find,” On the morning of that day the plaintiff had asked Rideout, the foreman, if he and another workman named Duncan McGinnis could saw up some lumber called spare waste on a feed saw, and the foreman' said, “No, you do not know anything at all about it.” The plaintiff testified that he never worked upon a circular saw before except six or seven times, a few minutes at a time, and three of those times were with the particular saw that injured him, sometimes sawing white wood, sometimes oak wood, and on this particular day sawing butternut wood; that Rideout gave instructions for the work generally in the room where he was employed; that he worked from three o’clock until fifteen minutes past five, sawing butternut wood one and five eighths inches wide and seven eighths of an inch thick; that he had sawed away a strip thirteen inches wide until it was four inches wide, or less, and ran off tapering at the end; that he ran it up against the saw, and it was too narrow for it to go into the saw, and he went to put his hand on both pieces of the wood back of the saw, pinching the wood to shove it and pull it out, and his hand was thrown by the wood and its force up on top of the saw, and his four fingers were cut off; that he was hired to act as a laborer, to pack lumber from the cellar to the planing-mill, carrying it into the basement so that the moulders could use it, and from the dry-house into the cellar; that the defendant was not present when Rideout set him to do this sawing; that he knew if the saw touched his hands it would go through them ; that when the board was nearly sawed through, and when his hand had got as near the saw as he thought was safe, he put his fingers back of the saw to push the board forward through the saw; that he could pull the board through the saw in that way without getting his hand on the saw; that he did not put his hand over to the other side of the board and take hold of the other edge of the board, because he did not know that he could pull it out that way; that on the day before the accident he had seen Rideout, in sawing a board, push it, when nearly finished, through the saw with a stick, and saw that Rideout’s fingers did not come near the saw in doing so; that he did not know of any difficulty in doing the same way himself, but simply did not think of it; that he had seen Rideout at work on this saw and other saws, and in sorting lumber; and that Rideout kept himself at work pretty much all the time in getting out lumber or piling it up or arranging it, and in operating saws, and was doing that about all of the time that the plaintiff saw him.</p> <p>Duncan McInnis testified that Rideout was his foreman, and was the person who gave him his orders; that he had also seen him grinding tools, piling lumber, and keeping busy generally; that Rideout was grinder there for the moulders, grinding knives, and taking charge in general of the moulders and the saws; that he did not know whether Rideout gave orders to anybody else; that Rideout kept pretty busy at work, and spent most of his time at work; and that he had seen the plaintiff before the day of his injury at work on this same saw.</p> <p>• George W. Dykeman, an expert called by the plaintiff, testified that he had been a sawyer about twenty-six years ; that a board sometimes kicks, that is, comes over the saw; that springy lumber will make it; that butternut wood is springy and dangerous wood to saw; and that the proper way to get a board through the saw when it was almost sawed through was to push it through with a stick, as the plaintiff had seen Rideout do.</p> <p>The judge ruled that, upon the declaration and the evidence, the plaintiff could not recover, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. •</p>

Motion to strike off a default and continue a case in the Superior Court. Hearing before Mason, C. J., who allowed a bill of exceptions, in substance as follows. The action was one of contract, in which the writ was dated December 24, 1891, and was returnable to the Superior Court on the first Monday of February, 1892.

<p>False Arrest — Waiver — Estoppel — Defective Writ — Damages — Exceptions.</p> <p>A person who was arrested upon a defective writ was taken by the officer, at his own request, to the office of a lawyer with whom he consulted, and then to the residence of one magistrate for the purpose of giving bail, and to the residence of another magistrate, where he gave bail, and he also paid for drafting the bail bond and for half of the carriage hire. When the writ was entered he appeared, filed an answer making no objection to the service, placed the case upon the trial list, and consented to dispose of it by an entry of “ Neither party.” Held, in an action against the officer for false arrest, that the above facts would not justify a finding that the plaintiff waived the illegal arrest, or had estopped himself from maintaining an action for damages.</p> <p>An arrest upon a writ which contains no copias clause is illegal; and the officer in making the arrest is a trespasser, and is liable in damages to the arrested person.</p> <p>In an action against an officer for false arrest, it appeared that the plaintiff, by agreement with the officer, was taken on the evening of his arrest to the residence of a magistrate, where he gave bail and was discharged. A bill of exceptions alleged at the trial did not show that the defendant asked for instructions as to the measure of the damages which the plaintiff might recover; nor that any instruction upon that subject was given, except the general one that the plaintiff was “ entitled to recover damages which he sustained in consequence of what the defendant wrongfully did.” Held, that there was no error in this instruction; and that it was not open for the defendant to complain that no specific instruction was given upon the question whether the plaintiff could recover damages for what occurred between the time when he agreed to give bail and his actual discharge.</p>

<p>Personal Injuries — Due Care — Crossing Track in Front of approaching Train.</p> <p>The plaintiff, a yard-master in the freight-yard of the defendant, and familiar with the yard, and with the speed and direction of trains accustomed to pass through it, for the purpose of giving orders to some workmen, attempted to cross the railroad tracks about six hundred feet in front of a rapidly approaching train which he saw, and in so doing caught his foot under some unboxed wires near the rails and a few inches above the surface of the ground which were a part of the mechanism of an interlocking signal system then in process of construction, and fell so 'close to the train that he received a shock by its passing him as well as was injured by the fall. The plaintiff was aware of the position of the wires, which to his knowledge had been for nearly two weeks in the same .position and condition, and the orders which he was about to give did not call for such haste that he could not have waited for the train to pass before crossing the tracks. Held, that the plaintiff voluntarily and needlessly incurred an obvious risk, and that he was not in the exercise of due care.</p>

<p>Bite of Dog— Contributory Negligence — Leading Horse behind Wagon.</p> <p>The leading of a horse behind a wagon on a country road is not such contributory negligence as will preclude the owner from maintaining an action, under the Pub. Sts. c. 102, § 93, against the owner of a dog by whom the horse is bitten while being so led.</p>

<p>Tort, under the Pub. Sts. c. 102, § 93, to recover double the amount of damages alleged to have been sustained from the bite of a dog. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the defendants; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Illegal Keeping— Common Nuisance— Sale ■—• Evidence — Distinct Offences in one Count — Formal Defect — Appeal.</p> <p>On the trial of three complaints for the illegal keeping of intoxicating liquors, for keeping and maintaining a common nuisance consisting of a building used for the illegal sale and illegal keeping of intoxicating liquors, and for an unlawful sale of intoxicating liquors, the defendant, in order to meet the evidence of the government tending to show his proprietorship of the premises in question, put in evidence a lease of the premises from the owner to a third person dated a few days before the date of the alleged offences, and testified that he gave up the premises to such new lessee. The government, for the purpose of showing that the lease "was not given in good faith, and that the place was not given up by the defendant to the new lessee, asked him, on cross-examination, whether on the day the lease was executed he did not state to a certain person that he wanted to have a certain case then pending against him settled, as he had a lot of farming to do, wanted to plant five acres of potatoes, and wanted to be at liberty to do so, and, on his replying in the negative, called in rebuttal the person named in the question to the defendant, who testified that the defendant made such a statement to him. Held, that the question to the defendant and the evidence of the witness were competent.</p> <p>A complaint alleging that on a day named the defendant “ did sell intoxicating liquor, to wit, lager beer, to certain persons whose names are unknown ” to the complainant, does not charge a sale to several persons, but charges several sales to several persons, and combines distinct offences in one count; and as the defect is a formal one, no advantage can be taken of it for the first time in the Superior Court on appeal.</p>

<p>Question of Executors’ Compensation rendered Immaterial — Special Compensation of Trustee — Agreement among Beneficiaries — Executors acting as Trustees — Ratification— Capital and Income — Repairs and Improvements — Error of Accounting.</p> <p>The contention that executors are not entitled to compensation for the sale of real estate does not arise if the commission charged was, with other commissions, disallowed in the Probate Court, and a lump sum was allowed for their ser- • vices, and the allowance was affirmed by a single justice of this court, no reason being shown why the sum so allowed was not a fair and reasonable compensation.</p> <p>A will which contemplated the keeping of nearly the whole principal in the hands of trustees for a long period provided that one of the trustees, who had had the full management of the estate for some years in the testator’s lifetime as his agent under salary, should continue such management, receiving compensation independent of the trustees' commissions at the same rate as his former salary. After the probate of the will an agreement by which this salary was reduced was made by all parties, two of whom afterwards contended that the payments of compensation on this account should be disallowed, because not justified by the will before the trustees were appointed by the Probate Court. Held, that it was the intention both of the testator and the parties to the agreement that there should be no interruption in the services to be rendered, and that the decree allowing the charges far this compensation was right.</p> <p>The same persons were named by a will as executors and trustees, and all the property, real and personal, was devised to them. Without objection they qualified as executors only, and proceeded in the management of the estate as a whole, without objection or protest, distributing the income from time to time among the beneficiaries. Expenditures by them upon the real estate, in the nature partly of permanent improvements, and partly of repairs, were found to be wise, judicious, and necessary. So far as the expense of these charges was defrayed with the capital, two of the beneficiaries contended that they ought not to be allowed, because the executors had not been appointed trustees by the court. Held, that, although it would have been more regular for them to have qualified as trustees in the first instance, they were the persons to whom the property both real and personal was given by the will, and who had a right as trustees to make the expenditures; and that the objection was fully answered by the fact that since becoming trustees they had in that capacity adopted and ratified their acts as executors.</p> <p>Where real property is left in trust to pay the income to one class, and the principal eventually to another class, the general rule is that repairs come out of income and substantial improvements out of capital, and there is no distinction that a line should be drawn at the death of the testator so that repairs then needed should be called improvements ; and if it is impossible for the executors acting as trustees to separate by items the amounts chargeable to reconstruction and the amounts chargeable to repairs, because the repairing was done in the course of reconstruction and by the same men at the same time, an apportionment by the executors of the expense of the work according to their best judgment, charging to income the expense of so much, of the work as they considered repairs, and to capital so much of the work as they considered reconstruction, will not be disturbed by this court.</p> <p>A testator gave his entire estate to trustees to pay over the net income to his six children, two of whom were two of the three executors and trustees. The first two accounts were allowed by the Probate Court without objection, after the publication of citations, and the third was assented to by four of the six beneficiaries, two of whom were executors and trustees, and objected to by two beneficiaries who are the appellants and contestants. The accounts were corrected by crediting to income and charging to capital a certain sum, and the contestants not only claimed two sixths of that sum, but contended that the remaining four sixths should be held by the trustees, so that the contestants would get two sixths of the income of it, the other four beneficiaries being entitled to no part of it, as they had assented to the accounts. Held, that the contention was untenable, as the error was not one of administration but of accounting.</p>

Tort, for trespass alleged to have been committed by the defendant between August 1, 1884, and July 12, 1890, the date of the writ.

<p>Bill in equity against the city of Boston and against Hosea Kingman, Tilly Haynes, and Harvey N. Collison, constituting the Board of Metropolitan Sewerage Commissioners, to restrain them from the performance of a contract by which the sewage of various cities and towns connected with the Metropolitan Sewerage system was to be discharged through the sewer of the defendant city, which was constructed through land taken from the plaintiff.</p> <p>The bill alleged, in substance, that the plaintiff was, on November 5, 1889, the owner of land in Quincy in that part called Squantum., and known as Squantum Head, Moon Island, and Little Moon Island; that on or about that date the city of Boston, acting by its board of aldermen, under the authority of St. 1885, c. 249, took a portion of the land of the plaintiff for the building and maintenance of a system of sewers for the city and for the discharge of sewage theréfrom; that thereafter the plaintiff filed a petition for the assessment of her damages caused by the taking, which petition is now pending in the Superior Court; that the defendant city entered upon the premises of the plaintiff and constructed various sewers, reservoirs, and other structures necessary and proper for the purpose of maintaining its system of sewers, and for discharging therefrom the sewage of the city of Boston alone ; that the city of Boston had no right, by the terms of the taking or by virtue of the statute authorizing the taking, to use or permit the use of the sewers for the discharge of the sewage of any other -town or city than the city of Boston, or to contract with any person, corporation, or officials for the use of the sewers for any other purpose than the discharge of sewage of the city of Boston alone; that on April 27, 1892, the defendant city made a contract with the other defendants, constituting the Board of-Metropolitan Sewerage Commissioners, by which the city undertook and- agreed to take into its sewers which were laid through the land taken from the plaintiff, and to discharge therefrom at its Moon Island outlet, all the sewage caused by the commissioners to be discharged therein ; that the Metropolitan Sewerage Commissioners have constructed a system of sewers for the disposal of the sewage of the cities of Waltham and Newton and the towns of Watertown and Brookline, and of other towns, all of which sewers the commissioners propose to connect with the sewers of the city of Boston, as provided in their contract, in such manner that the entire sewage of those cities and towns shall be discharged through the sewers laid through the land taken from the plaintiff; that the contract and the proposed action of the defendants are unauthorized by law, and by the taking of the land by the city of Boston, and that it will cause serious and irreparable injury to the plaintiff and to the remaining lands owned by her; and that no compensation has been paid or tendered to the plaintiff by the defendants for such use of her land, nor does she have any adequate remedy at law to. obtain compensation for the damages caused by the proposed illegal acts.</p> <p>The prayer of the bill was that the defendants might be enjoined from the performance of the-contract, and from the use of the sewers and the outlet to Moon Island, and of any part of the land taken from the plaintiff, for the discharge of any sewage except that coming from the city of Boston alone.</p> <p>The city of Boston filed an answer, and the Board of Metropolitan Sewerage Commissioners demurred for want of equity.</p> <p>Hearing before Allen, J., who sustained the demurrer, and ordered the bill to be dismissed; and the plaintiff appealed to this court.</p>

<p>Distribution of Surplus by Receivers among Stockholders — Assignment for Benefit of Creditors of Stockholder indebted to the Corporation — Equitable Set-off.</p> <p>The stockholders of a corporation which had become unable to obtain money to carry on its business voted that proceedings be instituted for the appointment of a receiver to take charge of its assets and to close up its affairs. The capital stock was divided into five hundred shares of which A. owned two hundred and fifty, B. two hundred and twenty-five, and other persons the remaining twenty-five. The vote was passed by stockholders representing four hundred and seventy-five shares, of whom B. was one, and the same stockholders united in a request in writing for the appointment of receivers. Thereupon, upon the petition of a creditor of the corporation and of B., receivers were appointed, who, after having discharged in full all the obligations of the corporation to its creditors, had remaining in their hands a considerable amount of money for distribution among the stockholders. When the receivers were appointed, B. was himself indebted to the corporation to an amount far exceeding the amount which finally remained in the hands of the receivers for distribution. Subsequently to the appointment of receivers, B. made a general assignment to trustees for his creditors, to whom his indebtedness exceeded the assets of his estate. The receivers of'the corporation, in accordance with an order of court, assented to B.’s assignment, and became parties thereto, and filed with the trustees a proof of the claim of the corporation against him, to which was annexed a statement that it was “ without waiving any rights in law or equity which we may . have by way of set-off or otherwise on account of dividend or dividends or payments from funds in our hands upon stock of the Cape Ann Granite Company standing in the name of B. at the time we were appointed receivers of said Cape Ann Granite Company.” The assignment executed by B. contained a clause providing that the creditors who should assent and sign should thereby accept and take in payment of their respective debts the dividend payable under the assignment, and that they severally discharged B. from all such demands. The order under which the receivers became parties to the assignment was entered upon their petition, in which it was recited that it was necessary for the corporation to become a party in order to share in the dividends, and that it was for the interest of the corporation so to do, and the decree in terms allowed the receivers to become parties to the assignment, and thereby compound the liability of B. to the corporation, and-to accept the dividends paid under the assignment in full discharge of that liability. Held, that, as the corporation was not dissolved, but continued as an existing corporation, and the certificate of stock owned by B. being held by his trustees, who had paid no dividend under the assignment, the creditors of B. had under the assignment no equity superior to that which he had when he made the assignment, and that the stockholders of the corporation other than B and his trustees had an equity superior to that of B. to the fund in the hands of the receivers, and that a set-off against the claim of his trustees to a distributive share of the funds in tl\e hands of the receivers should be allowed.</p>

<p>Promissory Note— Gift.</p> <p>Where the payee of a promissory note handed it to the maker, saying, “ I will give you this, — this note, as I have never helped D. [his son, and the maker’s husband] hardly any,” and the maker took it, folded it up, and put it in her pocketbook, where it remained for an hour or more, until the payee asked her to let him have it to keep to indorse the interest, and she returned it to him, and continued thereafter to pay interest thereon, the inference is justifiable that both the payee and the maker understood that the handing of the note to the maker was not a full gift; but if the transaction was a completely executed gift, and the new agreement to pay interest was a separate transaction, it is immaterial how much time elapsed between the making of the gift and the new agreement, and this question should be submitted to the jury.</p>

<p>Beneficiary Association — Reserve Fund — Receiver appointed in another State.</p> <p>A receiver appointed by a court of equity in a foreign jurisdiction, to whom an insolvent corporation organized under the laws of that jurisdiction, its officers and agents, are ordered to assign and deliver all its property and effects, and have assigned and delivered them accordingly, is in effect an assignee of such corporation ; and, if he acts under a court of competent jurisdiction of the State by which the corporation was created, and in which its principal offices are situated and its principal business is carried on, he has a standing to intervene in and be heard on a proceeding in this Commonwealth for the appointment of a receiver of the property of the corporation found here.</p> <p>If a person, by attachment or otherwise, has obtained a valid lien on the property • in this Commonwealth of a foreign corporation, such lien is not dissolved by the filing of a bill or the appointment of a receiver, but must be enforced; but where there is no such lien, the general principle is that the property should be so administered that all claimants should receive their equal ratable shares of the whole property of the corporation.</p> <p>A fraternal beneficiary association incorporated and having its Supreme Sitting in another State, with local branches in this Commonwealth holding a charter and working under the jurisdiction of the Supreme Sitting, established a benefit fund wherein members, under specified conditions and regulations, might-become participants, and from which they might receive indemnity when by reason of disease or accident they became totally disabled from following any vocation. The fund was derived from assessments upon the holders of benefit certificates made by the Supreme Sitting of the Order, from time to time, through the local brandies. Eighty per cent of the amount received by eacli brancli on each assessment was sent to the supreme cashier of the Supreme Sitting, while the remaining twenty per cent was set aside and retained by the local branch as a reserve fund, but was the property of the Supreme Sitting, and at all times subject to its control. Held, that the legal title to the reserve fund, which was essentially a part of the benefit fund, was in the Supreme Sitting and not in the different local branches, and was held in trust for all the holders of benefit certificates; and that upon the insolvency of the association, and the appointment of a receiver thereof by a court of competent jurisdiction of the State where the association was organized who was authorized to collect all the moneys belonging to the order in the possession of all the branches wherever organized for the purpose of equally and ratably distributing them among the creditors and certificate holders wherever residing, the receiver might maintain a petition, in a proceeding brought in this Commonwealth by a certificate holder for the common benefit of himself and other certificate holders, to obtain for such distribution the funds held by the receiver appointed here, and, after an allowance to the latter for his charges and expenses and the payment of the expenses of the suit, the balance of the reserve and benefit funds should be transmitted to the foreign receiver, provided that the court by whom he was appointed should distribute the whole fund within its control so that the benefit certificate members of the local branches here should receive the same proportionate dividend as benefit certificate members of branches in other States who should be admitted to share in the fund.</p>

<p>Bill in equity, to obtain specific performance of an agreement for the purchase of an unexpired term of a lease, and to compel the lessor to assent to its assignment.</p> <p>The bill alleged that the plaintiff, on November 1, 1892, was appointed the receiver of the American Protective League, a corporation organized in June, 1889, under the provisions of St. 1888, c. 429; that at the time of his appointment the League held a lease from James J. Grace, at an annual rent of $12,000, of the building numbered 181 on Tremont Street in Boston, running until May 1, 1905; that the League occupied certain rooms in the building for the purposes of its business, and sublet the remainder; that during the period of its occupancy the League, with the knowledge and consent of Grace, had expended more than $20,000 in extending the front of the building to the line of the street, and in otherwise enlarging and improving the premises, thereby increasing the value thereof; that at the date of the appointment of the receiver there remained an unexpired term of twelve years and six months, which was of value; that at divers times between September 13, 1892, and December 20, 1892, and on said December 20, the lessor Grace orally consented, through his counsel and personally to the plaintiff and others, to the sale and assignment of the lease, and to the appropriation of the money that might be obtained therefrom for the benefit of the League and of its creditors and certificate holders; that the plaintiff, relying upon such oral consent of the lessor, obtained a purchaser of the unexpired term, and on December 17, 1892, agreed in writing to assign it, together with certain office furniture in the rooms occupied by the League, to William D. Bradstreet and Joseph Bennett for the sum of $5,600, which sum the purchasers Bradstreet and Bennett agreed in writing to pay therefor; that the defendant Bradstreet signed the agreement for and on behalf of Bennett, as well as on his own behalf, and subsequently, before the filing of the bill, the written agreement was ratified by the defendant Bennett in writing; that at the time of signing the agreement Bradstreet, acting on behalf of Bennett and himself, paid to the plaintiff the sum of one hundred dollars on account of the purchase money as an earnest to bind the bargain, leaving a balance due of the purchase money of $5,500; and that thereafter, on December 28, 1892, the plaintiff as receiver obtained a décree of the court assenting to the contract of sale and assignment of the lease to Bradstreet and Bennett, and authorizing the plaintiff to execute the same.</p> <p>The bill further alleged that the plaintiff had the right to assign the lease without the "consent of Grace, there being no covenant or provision therein affecting or curtailing his common law right to sign the same except that in the words following: “ The said lessee for itself and its representatives further covenants that it or others having its estate in the premises will not assign this lease nor underlet the whole or any part of said premises for any use or occupation which may be fairly considered more hazardous or prejudicial to the value of the premises or of the neighboring property than the ordinary occupation of buildings of like character, nor make nor allow to be made any unlawful, improper, or offensive use thereof, and that no material alterations or additions other than those herein specified shall be made during the term aforesaid in or to the same, without the consent of the said lessor or of those having his estate irithe premises being first obtained in writing allowing thereof ” ; that the assignment to Bradstreet and Bennett was not to be “ for any use or occupation which may be fairly considered more hazardous or prejudicial to the value of the premises or of the neighboring property than the ordinary occupation of buildings of like character,” nor was “ any unlawful, improper, or offensive use” of the premises to be made; that the consent of Grace was not necessary to the validity of the assignment in the hands of the receiver, that Bradstreet and Bennett were bound to accept the assignment which the plaintiff has at all times been ready to give and to deliver to them, and to pay to the plaintiff the balance of the purchase money; that the plaintiff is informed and believes that Bradstreet and Bennett are ready and willing to perform the agreement on their part, and to accept the assignment without the written consent of Grace, if the court finds that such written consent is not necessary to a valid assignment thereof, and to accept it with such consent, if the court finds it necessary; that the agreement of December 17, 1892, was made with the previous knowledge and consent of Grace that a contract for an assignment of the lease was to be immediately made by the plaintiff; that before January 1, 1893, the plaintiff tendered to Bradstreet and Bennett a valid assignment of the lease without the written consent of Grace, and offered to perform all the terms of the contract, but that the defendants Bradstreet and Bennett refused to accept the same or to perform the co’ntract on their part; that on December 20, 1892, Grace was informed by the plaintiff that such a contract had been made, and then consented orally to the assignment and to 'Bennett as an assignee thereof, and made no objection to Bradstreet when informed that he was to be the co-assignee, but that on December 23, and again on December 27, Grace informed the plaintiff that he would consent to no assignment of the lease to any person or persons, and that he should enter upon the premises and take possession thereof; that Bradstreet and Bennett are in all respects fit and proper persons for assignees of the lease, and that no fair or reasonable objection to them as tenants can be alleged by Grace, even if his consent is necessary to a valid assignment of the lease, and that his refusal to give his consent, assuming it to be necessary, is unreasonable, vexatious, fraudulent, and contrary to equity and good conscience, and that he should be compelled ■ by the process of the court to give the same; that on December 30 Grace sent to the plaintiff a written notice alleging that the terms of the lease had been violated by the removal of part of the wall between the leased premises and the adjoining estate, and by other material alterations not specified in the notice which he therein alleged had been made without his knowledge or consent, and that unless the premises were restored forthwith to the condition called for by the lease he would enter to determine it; that the only portion of the wall which had been removed was a small portion of the cellar or basement wall making.an opening from the cellar or basement into the cellar or basement of the adjoining building; that it was made in August or September, 1892, by the lessee and occupant of the adjoining building, who leased from sub-tenants of the League the basement of the premises to be used in conjunction with the basement occupied by them in the adjoining building; that the opening was made with the knowledge and consent of the owners of the adjoining building, who were half owners of the wall, under a permit from the inspector of buildings and in accordance with his directions and the requirements of the building laws, and with the knowledge and consent of the insurers of the building; that the opening is safely and securely made and protected, and is not an injury to the building, but a benefit and improvement to it; that according to the plaintiff’s information and belief Grace knew of the opening at the time that it was being made, and knew that the basement was leased to be fitted up and used as above described, and that, whether or not this information or belief is correct, Grace was informed of the opening, leasing, fitting up, and using in October, 1892, and thereafter on November 5 and Decefnber 2, and on January 7, 1893, he accepted from the plaintiff payment of the monthly rent of $1,000 under the lease from him to the League ; that such a removal was not a breach of covenant of the lease, nor ground for a forfeiture of the same, nor for an entry by Grace to terminate the same, and that if it were Grace has waived the same by accepting rent, and is estopped to enter to terminate the lease; that if the removal or any other alteration in the building is found by the court to be a ground of forfeiture of the lease, and not to have been waived by Grace, the plaintiff is ready to restore the premises forthwith to the condition called for by the lease; and that any other alterations, if such have been made, which the plaintiff denies, were not material, and were done with the knowledge and consent of Grace, and have been waived by his acceptance of rent since receiving knowledge thereof.</p> <p>The prayer of the bill was that Grace might be enjoined from entering to determine the lease; that Bradstreet and Bennett should be ordered to accept an assignment of the lease without the written consent of Grace, and to pay to the plaintiff the sum of $5,500 therefor; and that, if the written consent of Grace was necessary to the validity of the assignment to Bradstreet and Bennett, he might be ordered to give the same.</p> <p>The agreement for the purchase of the lease referred to in the bill was as follows :</p> <p>“ I, William D. Bradstreet, of Boston, offer five thousand six hundred dollars for the unexpired term of the lease of 181 Tremont Street, Boston, held by Henry W. Putnam, receiver of the American Protective League, remaining from and after January 1, 1893, and the following articles in rooms 32, 33, and 34, to wit: standing partitions with glass tops, rail in small room, shelving, carpets, standing desk at window facing toward Boylston Street, and large steel safe nearest Tremont Street. Said receiver to pay the taxes for 1892 and Mr. Dresser’s commission. William D. Bradstreet.</p> <p>“ I hereby accept the above offer, subject to obtaining the assent of Mr. Grace, and of the court if necessary. Henry W. Putnam, Receiver of the American Protective League.”</p> <p>The written instrument referred to in the bill as Bennett’s ratification of Bradstreet’s purchase of the lease was as follows :</p> <p>“ Boston, Dec. 24,1892. Bro. Putnam, — Your note received and contents noted. I will at once see Mr. Bradstreet and have the papers in your hands in season. It strikes me that, as the lease provides for extensive repairs which have been completed, the assent of Grace should also state that the repairs and alterations made meet his approval and are satisfactory. Lease will run to us both. Yours, Joseph Bennett.”</p> <p>The notice of the defendant Grace to the receiver that the terms of the lease had been violated was as follows:</p> <p>“ Boston, Mass., Dec. 30, 1892. Henry W. Putnam, Esq., Receiver. Dear Sir, — I am in receipt of yours of the 30th inst. I hereby notify you that the terms of my lease to the American Protective League haVe been violated by the removal of part of the wall between the leased premises and the adjoining estate, No. 181 Tremont Street, and by other material alterations which have been made without my knowledge or consent, and that, unless the premises are restored forthwith to the condition called for by the lease, I shall enter to determine the lease. Yours respectfully, James J. Grace.”</p> <p>The defendants severally demurred to the bill for want of equity, for multifariousness, and because the plaintiff had a full, adequate, and complete remedy at law.</p> <p>Hearing in the Superior Court, before Mason, C. J., who sustained the demurrer of the defendant Bennett, and overruled the demurrers of the defendants Grace and Bradstreet. The plaintiff and the defendants Grace and Bradstreet appealed, and the Chief Justice reported the case for the determination of this court. The defendant Grace subsequently waived his appeal.</p>

<p>Contract, for breach of an agreement to convey certain land to the plaintiff.</p> <p>The declaration alleged that the defendant, on or about May 25,1892, in consideration of the plaintiff’s promise to buy certain land in Newtonville, agreed to sell, and within a reasonable time thereafter to convey it to him for the sum of $10,000 ; that the plaintiff was at all times ready and willing to pay the purchase price and to accept a deed of the land, but that the defendant, in violation of his contract, subsequently, on June 16, 1892, a reasonable time for the performance of the contract not having then elapsed, sold and conveyed the land to “another person, thereby preventing the performance of his contract with the plaintiff. Answer: 1st, a general denial; 2d, the statute of frauds.</p> <p>Trial in the Superior Court, without a jury, before Maynard, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to show that on May 12, 1892, at an interview between the plaintiff and the defendant, the latter orally offered to sell to the former certain land in Newtonville within a reasonable time for $10,000. Subsequently the plaintiff telegraphed to the defendant, “ I have notified French that I have taken option from you of ISTewtonville land,” and in response thereto received from him a postal card, dated May 13, 1892, saying, “Your telegram is at hand, . . . and the land is yours if you want it. Only do decide quickly as possible.” The parties had a second interview at the Parker House, in Boston, at some time between May 25 and May 27, and the substance of that interview, as related by the plaintiff, was that “ Smith definitely concluded to sell to me. The transaction was concluded definitely. He said I could have the land for ten thousand dollars, and I agreed to take it then and there. There was no question about the sale and purchase for ten thousand dollars of that piece of land. Mr. Smith gave me a plan of the property at the time I bought the property, at the interview of May 25 to 27.”</p> <p>Subsequently the plaintiff received a letter from the defendant, dated June 2, 1892, which was as follows: “I am in a fix, as it looks at this moment. My cousin is guardian for the children, and Mr. Teele, the lawyer, says, as he looks at the case, the guardian must give the title, and the administrator has not the authority. This is the way the matter stands, that I cannot give a title. The moment I talked with Mr. Page, he hustled right round and found a man who would give $10,250, and no commission, and he is proceeding to act on this, and I suppose went to Cambridge this morning; if he carries his point before the judge, I am left. That afternoon at the Parker House, or even early the next morning, I should have said,1 Mr. Williams, this whole matter is in the hands of Messrs. French and Fuller, and I cannot talk with you for less than $11,000.’ I did say this, over and over again, but your persuasive eloquence made me say what I should not have said, and what you would not have said had the relations been reversed. I do not know what I can say more, but to throw myself upon your generosity, and only say, write and let me know my fate.”</p> <p>The plaintiff received a second letter, dated June 17, 1892, . which was as follows: “ The deed is done. Mr. Ross has two deeds, one from me, and the other from Mr. Page. I am very, very sorry for the whole .affair. I throw myself on your generosity, believing you will do by me as you would be done by.”</p> <p>On July 2,1892, in order to obtain further evidence to aid in making out a memorandum sufficient to satisfy the statute of frauds, the plaintiff’s son, who was an attorney in Connecticut, acting in his father’s behalf, wrote to the defendant as follows : “ My father has asked me to correspond "with you in reference to your agreement to sell him the Newtonville land on Watertown, Walnut, and Lowell Streets, for $10,000, and see if we cannot adjust it. You both, do you not, agree that these are the facts of the case ? If so, can’t the whole matter be settled amicably, and without expense to either of you ? ”</p> <p>To this he received the following reply, dated July 6, 1892: “ In reply to yours of July 2, will say, I did say to your father that he could have the refusal of land at Newtonville for $10,000 for ten days, and the next morning, in reply to a telegram, I think, I confirmed the matter by postal. I then supposed I alone could give a title; in two or three days I found out that this could not be done. I immediately wrote to your father what the trouble was. Practically this is how the case stands at this writing, only that another party has a deed of the land from Mr. Page and myself jointly; this I presume you know. I did not receive any written notice within the ten days, or even to this day, that your father would take the land. I was in hopes that your father would think the matter too trifling to pursue. Morally, I do not feel under the slightest obligation. If you go at me through the courts, I will see what I can do to defend myself. At this writing I have not said a word to any lawyer;. I never yefc have been in court, and never desire to be. I have the highest respect for your father. I believe him to be a thoroughly honest man, but it does seem to me he is straining things in this affair. Can’t you prevail upon him to let it drop, and perhaps save lots of tribulation for both of us ? ”</p> <p>The plaintiff further introduced evidence that the defendant, by deed dated June 15, 1892, as administrator of the estate of Kate Page, conveyed the land in question, acting under the license of the Probate Court, for $10,250, to one Ross. The plaintiff also introduced evidence on the question of damages, and at the close of his case the judge ruled that the action could not be maintained, and found for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort, for personal inj'uries occasioned to the plaintiff on June 2, 1890, while unloading bricks from the defendant’s wagon. Trial in the Superior Court, before Maynard, J., who ruled that the action could not be maintained, and directed a verdict for the defendant; and the plaintiff alleged exceptions, in substance as follows.</p> <p>The plaintiff offered evidence tending to prove that he was employed by one Mack, who was erecting a building in Boston, as a laborer under the direction of Mack’s superintendent; that the defendant brought to and delivered at the building a large number of loads of terra-cotta blocks to be used in the construction of the' same; that since early in April it was the practice, when such loads were so delivered, for the defendant’s servants to drive up alongside the sidewalk in front of the building, and let each team as it came up stand in that position while the driver tossed the blocks from the wagon to Mack’s men, who received them and piled them away in the building; that after the first load had been delivered the men placed planks or timbers so that one end should rest on the floor of the wagon and the other end on the floor of the building, making a level platform or walk from the bottom of the wagon to the first floor of the building, and Mack’s men would stand on the planks or timbers, and the man on the plank nearest to the wagon would receive them as the driver tossed them to him, and then he would toss them to the next man, and so they would be passed along till they were delivered into the building ; that this practice was continued quite a long while with no trouble or accident until June 2, 1890, when the defendant sent a load of blocks to the building in a wagon drawn by a pair of horses which had not been used to draw a load to that place before, and which had two weeks previously been brought from the West and purchased by the defendant at auction in Boston ; that the horses were driven up alongside the sidewalk; that the plaintiff at this time stood on the platform nearest to the wagon and received the blocks from the driver, and in turn tossed them to another of Mack’s men nearer the building; that after a few of the blocks had been taken off in that way, the horses suddenly started, throwing the plaintiff and the platform to the sidewalk; that another team was standing in front of the horses, which was driven away just before the accident, and that a large team loaded with iron was passing at the time in the street and making considerable noise; and that a great many teams were constantly passing in the street.</p> <p>The plaintiff testified that “ the teamster drove his team alongside of the curbstone, and threw the reins loosely over the seat. He did not hitch the horses. He did not put any weight to the horses. He did not put any blocks of wood or anything under the wheels. I saw him all the time until he commenced to pass the bricks to me, until I fell. I noticed the horses were fine gray horses. McIntosh’s agent was praising them to Mr. Haniford. I noticed they were restless. I call them green horses, runaway horses. They were, sir.”</p> <p>The teamster had his back turned to the horses and the fore part of the wagon. He commenced at the fore part of the wagon to unload, and had unloaded about seventy bricks when the horses started. I was taking a brick this way, as I would be throwing to one of the gentlemen here (illustrating). And when I faced for the other one, the horses started and I was thrown.</p> <p>On cross-examination, the plaintiff testified, “ I knew of my own knowledge at the time that the teamster did not put any blocks or trigs before the wheels ; I saw that he did not. I saw that he did not when he first drove up. And after I saw it, I and he put these planks on there, and then I went on there to work. And then the team started and the planks fell, and I was on the plank and fell too. I did not get the planks; McIntosh’s teamsters got them. The driver threw the reins across the seat loose, or else he could not throw them on the seat. I was there when McIntosh delivered the first load of brick. I helped unload the load. The planks were used in unloading the first load. I am sure of that. The first two loads the teams did not drive up sidewise to the sidewalk. They drove along; there was no traffic in the street. They backed up endwise, and myself and these other men would go and carry them out; the horses would be out in the street; they did not unload all that way; they unloaded a few that way; when we lightened the team, they backed them up and they put those timbers on themselves •, before they had lightened the team, the tail end stood to the sidewalk.”</p>

<p>Abolition of Highway and Railroad Crossings at Grade — Constitutional Law.</p> <p>The precise manner in which the separation of the grades of an intersecting highway and railway is to be accomplished under St. 1890, c. 428, is to be determined by tile commissioners and the court, and it is unnecessary that a plan or specification showing the nature of the alterations desired should accompany or be set forth in the petition.</p> <p>A petition under St. 1890, c. 428, asking “ that an alteration should be made in said crossing, in the approaches thereto, in the location of said public way, and in the grades thereof, so as to avoid a crossing at grade,” is broad enough to authorize a change in the place of crossing, if, after the change is made, it remains a crossing of the same street, accommodating substantially the same travel, so that it can fairly be called the same crossing removed a short distance to a new location.</p> <p>The St. 1890, c. 428, entitled “ An Act to promote the abolition of grade crossings,” is constitutional.</p> <p>Where two new crossings and two new ways proposed in substitution for one crossing at grade of a railroad and highway are each a considerable distance from the old ones, and the two new ways are each of considerable length, and are more than a fair substitute for the old way, they are more than can be ordered under a statute which, when a crossing is discontinued, authorizes new ways to be built only “ in substitution therefor.”</p> <p>An owner of real estate abutting on a street a portion of which is discontinued in proceedings under St. 1890, c. 428, none of whose land is taken, and none of which abuts on the discontinued portion of the street, has no personal or private interest different in kind from that of other abutters on the street, and he is not entitled to appear and be heard as a party to proceedings under that statute.</p> <p>The appointment by the Superior Court, upon the motion of all the original parties to proceedings under St. 1890, c. 428, for the abolition of a grade crossing, of a person as one of the special commissioners who, prior to such appointment, had been an Assistant Attorney General, and as such had entered an appearance for the Attorney General as the representative of the Commonwealth, which was a party to the proceedings, is not, in the absence of evidence to show interest or prejudice, such an error as requires the report of the commission to be set aside in behalf of persons interested in the proceedings who were not originally parties.</p>

<p>Bill in equity, filed February 24,1893, by certain of the next of kin of Jane D. Royce, to have a bequest of the residue of her property' “ to the Evangelical Baptist Benevolent and Missionary Society, for the benefit of poor churches of the city of Boston and vicinity,” declared void as indefinite and uncertain, and as creating a trust contrary to the rule against perpetuities, and to have the executor directed to pay the residuary fund to the next of kin of the testatrix, in accordance with the statute of distributions. The executor demurred to the bill, on the ground that the bequest was valid, and that the next of kin had no right to claim the fund as undevised property.</p> <p>Hearing on the bill and demurrer before Knowlton, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

Bill in equity, filed August 8, 1893, by the assignees in insolvency of the joint and separate estates of David D. and Irving W. Snow, insolvent debtors, to vacate a judgment and to recover from the judgment creditor the value of property taken on an execution on a judgment obtained by him against the insolvents on promissory notes given by them without consideration prior to the institution of proceedings in insolvency with a view to giving a preference.

<p>Set-off of Homestead Estate — Effect of Devise in Lieu of Dower on Homestead Rights — Effect of Widow’s Absence from Homestead.</p> <p>A person, having from a time prior to 1840 owned land on which was a single house built for one family and having but one front door, acquired an estate of homestead therein. From 1852 until his death in 1889 he, with his wife, lived in one half of the house, while his son, with his family, lived in the other half, but the cellar, hallways, stairs, some rooms in the second story, and the barn were used by them in common. Held, that he had an estate of homestead in the entire estate.</p> <p>The right of homestead is a freehold estate for the life of the husband, and for such further time after his death as his widow shall continue to occupy the homestead, which cannot be affected by the will of the husband.</p> <p>A widow of a person having an estate of homestead, who, on the day after the funeral of her husband, being of advanced age and ill, unwillingly leaves the homestead estate, and lives for two months with neighbors, but who leaves various articles of furniture and household goods on the premises, intending to return, although in fact she never does, is not thereby deprived of her right to have an estate of homestead set off to her.</p>

<p>Water Company — Taking of Franchise — Payment not a Condition Precedent to a Taking by Town — Remedy for Recovery of Price — Constitutional Law.</p> <p>Under St. 1893, c. 281, authorizing a town to take by purchase or otherwise the franchise or corporate property of a water company “on payment to said corporation of the actual cost of its franchise, works,” etc., payment is not a condition precedent to the taking, and the water company cannot maintain a bill in equity to enjoin the town, after the taking and before payment, from preventing the laying of water pipes by the company.</p>

<p>Gaming-house — Being Present where Gaming Implements are found.</p> <p>At the trial of a complaint under the Pub. Sts. c. 99, § 10, as amended by the St. of 1887, c. 448, § 2, for being present in a common gaming-house when gaming implements were found there, it appeared that the building in question was protected with a thick oak door with brass trimmings having on the inside an oak bar fitted into staples attached to the door-case on each side of the door; that officers were unable to gain admittance by knocking, and attempted unsuccessfully to break down the door with a sledge-hammer; that some one inside pushed aside a slide covering a hole in the door and looked out, and after some delay the door was opened, and the defendants were found in a room of the building, walking about; that from this room a stairway enclosed in a solid board partition led to a room above; and that between the ceiling of the lower room and the floor of the upper room were found concealed gaining implements, including cards and a deal box used in playing faro: Access to the place of concealment was obtained by removing the riser of the top step of the stairway, which was fastened by a catch. Some one was heard running up the stairway while the officers were trying to enter the building, and after they had entered one of the defendants came down the stairway'. It also appeared that faro is a game played with playing cards for money. Held, that there was abundant evidence that the building in question was a common gaming-house.</p> <p>Although the Pub. Sts. c. 99, § 10, as amended by the St. of 1887, c. 448, § 2, and the statute in regard to nuisances, Pub. Sts. c. 101, § 6, make it necessary to prove that a building is resorted to for the purpose of gaming, it is unnecessary to prove the offence charged by direct evidence that on numerous occasions persons resorted to the house for this purpose, but the evidence may be circumstantial, or the facts disclosed may be sufficient to indicate that the place was one used as a place of resort for the purpose named.</p> <p>In the Pub. Sts. c. 99, § 10, as amended by the St. of 1887, c. 448, § 2, authorizing the arrest of “ all persons present, whether engaged in playing or not, if the implements of gaming are found in said place,” the word “ place ” refers to the house or building which the warrant authorizes the officers to enter, and is not confined to the room where such persons are found when arrested.</p>

<p>Real Action — Adverse User — Statute.</p> <p>The St. of 1861, c. 100, entitled “ An Act defining the rights of owners or occupants of land adjoining railroads,” applies only to the location of the railroad corporation, and not to land acquired by purchase adjoining the location.</p>

<p>Scire facias on a judgment against one Turner and the defendants as trustees. Writ dated August 25,1891. At the hearing in the Superior Court, before Thompson, J., it appeared that the plaintiff on the first Monday of June, 1891, recovered judgment against one Turner, and that thereafter the defendants were adjudged trustees. On June 17 execution issued against Turner and the defendants as his trustees, and payment thereof having been demanded of Turner and the defendant Glass, and by them refused, it was on August 15 returned into court unsatisfied.</p> <p>The defendants requested the judge to rule, that upon the evidence the action had been prematurely brought, and could not be maintained; that the answer and sworn statement of the defendants must be regarded as true, and could not be con t radiated by the plaintiff; and that upon the evidence, as set f >rth in their answer, the goods, effects, and credits in the hands of the defendants belonged to the firm composed of Turner and one Rideout, copartners, and could not be attached by the plaintiff as the goods, effects, and credits of Turner alone.</p> <p>The judge declined to rule as requested, and ordered judgment for the plaintiff; and the defendants alleged exceptions.</p>

<p>Contract. The declaration alleged that, by the authority of an order of the city council of the city of Boston, approved March 4, 1885, three commissioners were appointed by the mayor to make preliminary arrangements for the erection of a new court-house for the county of Suffolk; that by St. 1885, c. 377, as amended by St. 1886, c. 122, the commissioners so appointed were authorized, subject to the approval of the mayor of the city, to take land for such purpose, and, acting for the city of Boston, within a reasonable time to erect thereon a suitable court-house, work not to be begun, however, until proposals for doing the work should be received, and until contracts with satisfactory guaranties for their performance should be made; that pursuant to the acts so specified the commissioners took land, and advertised for proposals for the erection of the court-house, such proposals to be for doing different parts of the work separately and in different sections ; that the plaintiffs made proposals to the commissioners for doing the stone and brick mason-work, at different times, upon different and separate sections of the work ; that the proposals were accepted, and contracts were entered into in writing between the commissioners and the plaintiffs accordingly, and that the plaintiffs have executed the contracts in part, and are still engaged in the performance of the same; that under the contracts all the work of construction was to be done under the direction and control and subject to the approval of the commissioners, and of a supervising architect appointed by them ; that when they entered upon the work they had a complete and sufficient outfit of tools, machinery, and appliances for its performance, including an ample supply of suitable derricks; that thereafter, to facilitate the general work of construction, and to enable the contractors who from time to time might be engaged in such construction on different parts of the building to carry on the work with uniformity, and to make substantially equal progress in raising all parts of the building, the commissioners and the supervising architect proposed to construct a system of derricks known as the “ Norcross derricks,” such derricks to be- constructed at the expense of the city of Boston, and to be its property unless and until they should be purchased by such contractors; that the contractors were requested by the commissioners and architect to abandon their own derricks, and to adopt and use in common with other contractors the system so to be constructed; that thereupon it was agreed by the plaintiffs and the city of Boston, acting through the commissioners and the supervising architect, that the use of the plaintiffs’ derricks should be abandoned and that the system of “ Norcross derricks ” should be constructed and set up for use by the city, and that the plaintiffs should use the same in the performance of their contracts instead of their own ; that such change was made, and such agreement entered into wholly for the benefit of the city, and not for the convenience or advantage of the plaintiffs, and in consideration thereof it was understood and agreed between the plaintiffs and the commissioners and architect that the Norcross derricks should be constructed under the direction of the commissioners and the architect; that the same should be set up for use by them, and that the city should be responsible for their proper construction, and for setting them up properly and securely, so that they could be used by the plaintiffs with safety to themselves and their employees and without detriment to their work, and in consideration of the plaintiffs consenting to abandon the use of their own derricks, and to use the derricks supplied by the city, the city through its commissioners and the supervising architect undertook and agreed to hold the plaintiffs harmless against all loss or damage to which they might he subjected by reason of any defect in the construction of the Norcross derricks, or any negligence or carelesness in setting them up for use, so long as the city should continue to own them ; that prior to November 9, 1887, the city of Boston, acting through the commissioners and the supervising architect, pursuant to the agreement, caused four derricks of the character described to.be constructed and set up upon certain sections of the court-house then in process of construction by the plaintiffs, and so connected them with one another and with two previously set up on another section by guy ropes and otherwise as to form a connected system over the entire work; that the plaintiffs- did nothing toward their construction or setting up, but that the same was done wholly by the city, pursuant to its agreement with the plaintiffs; that on November 9, 1887, the plaintiffs were informed by the city, through the commissioners and architect, that' the derricks were ready and safe for use, and they were directed to proceed to use them in the further construction of the court-house; that on that day one of the derricks so erected fell, and by reason of its connection with the others caused the whole system to fall; that the derrick which fell was improperly constructed, and improperly, negligently, and carelessly set up by the city, whereby and solely in consequence whereof, and not through any fault of the plaintiffs, the fall was caused; and that the improper construction and negligent setting up of the derrick and its defective condition were unknown to the plaintiffs, and were not, by the use of due care, discoverable by them before or after they began to use it.</p> <p>The declaration further alleged that, while the plaintiffs were using the derrick in the performance of their contract, on November 9,1887, one Gardella, who was employed by them, was struck by the falling derrick and badly injured ; that thereafter, in an action brought against the plaintiffs to recover for such injuries, Gardella recovered judgment for a large sum, to wit, $6,358.72, which judgment the plaintiffs were compelled to pay, together with the sum of one thousand dollars which they were compelled to pay in defence of that action ; and that the plaintiffs have demanded reimbursement and payment to them of the sums so paid, but the defendant has refused to pay them anything, wherefore, as they allege, the defendant owes them the sum of $7,358.72.</p> <p>The order of the city council of the city of Boston referred to in the declaration was as follows: “ In Common Council, Jan. 29, 1885. Ordered, That his Honor the Mayor be, and he is hereby, authorized to appoint three citizens of Boston as commissioners for and in behalf of the city, to make all preliminary arrangements for the erection of a new court-house for Suffolk County, including the preparation of plans and estimates of the cost thereof; to confer with the proper officers of the Commonwealth in relation to the co-operation of the Commonwealth with the city in that behalf; to obtain additional legislation, if necessary, to enable the city to acquire additional land for such building; and from time to time to report their action to the city council with such recommendations as shall seem to them expedient. The compensation of such commissioners shall be fixed by the Mayor, and said commissioners may employ such clerical or other assistance as may be needed; provided, however, that the expense of said commission shall not exceed the sum of five thousand dollars for the present municipal year; and provided further, that the said commissioners shall incur no liability for or in behalf of the city unless specially authorized so to do by the city council.”</p> <p>The defendant demurred to the declaration, and assigned as grounds thereof, that the declaration set forth no cause of action; that neither the commissioners nor the architect were the agents of the defendant, and that they had no authority to enter into any agreement in behalf of the defendant, or to bind it by any agreement in regard to the derricks ; and that there was no privity of contract between Gardella and the defendant, or any liability on its part to him, in respect of any of the matters alleged in the declaration.</p> <p>The Superior Court sustained the demurrer, and ordered judgment for the defendant; and the plaintiffs appealed to this court.</p>

<p>Mechanic’s Lien — Motion to recommit Assessor’s Report.</p> <p>A motion to recommit a report to an assessor is addressed to the discretion of the court, and a decision thereon is not a subject of appeal to this court.</p> <p>If a party desires the findings of an assessor to be reviewed by the Superior Court he should take specific exceptions to the assessor’s findings, and request so much of the evidence to be reported as bears upon the points covered by the exceptions ; and any questions of law raised thereon can be brought to this court.</p>

<p>Personal Injuries — Due Care — Negligence.</p> <p>The plaintiff, a boy eighteen years of age, while in the employ of the defendant, was injured by reason of his hand being caught in the gearing of a spinning machine called a mule. He was, so far as appeared, a person of ordinary intelligence, who had attended the high school and had for a considerable time before . the accident worked on spinning machines. Where the plaintiff worked there were two mules about thirty or thirty-five feet long standing back to back with an alley-way two and a half feet wide between them. In the centre of each mule was a gearing which operated the front part of the mule, called the carriage, and did the spinning. This was protected by a framework consisting of uprights and an arm which, prevented the gearing from being seen. While the plaintiff was passing through the alley-way with one hand in front of him and the other behind him, a way in which he considered it safe and proper to carry his hands, he heard an outcry, turned quickly around, and dropped one of his hands, which was caught in the gearing. There was apparently no occasion for his going into the alley-way, for he testified that the work which he went in there to perform could be done from the front if the machine was stopped, but that he desired to save time by not stopping the machine, so as to make more money. Held, that assuming that the plaintiff was properly in the alley-way, and in the exercise of due care, there was no evidence of negligence on the part of the defendant, and that the plaintiff was not entitled to recover.</p>

<p>Personal Injuries — Passenger.</p> <p>A person who is struck and killed while running very rapidly from the direction of a public street in S. across the premises of a railroad corporation, outside of the passenger station, and across a track on which is an approaching train, apparently witli a view to taking another train which is about to start for B. on the track beyond, is not a passenger for whose death an action can be maintained under Pub. Sts. c. 112, § 212, although at the time of his death lie had in his pocket a ten-trip ticket which entitled him to ride over the railroad between B. and the station in S. where the accident occurred.</p>

<p> Liability of Obligors on Bond to dissolve Attachment after Judgment vacated. </p> <p>The liability of obligors on a bond given to dissolve an attachment ceases when the original judgment is vacated upon petition for review under Pub. Sts. c. 187, §§ 17-20.</p>

<p>Two cases. The first ease was an action of tort for trespass quare clausum fregit. Writ dated December 20, 1890.</p> <p>Trial- in the Superior Court, before Dewey, J., who directed a verdict for the defendant, and, at the request of the parties, reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff proved his title to a parcel of land in Dedham, and the trespass alleged to have been committed thereon, and rested.</p> <p>The defendant then offered evidence tending to prove that he was superintendent and engineer of the water works of the town of Brookline, acting under the direction of the selectmen and water board of the town; that in October, 1890, in the performance of his duties, he entered upon the land of the plaintiff, which was a part of the land taken by the town of Brookline on April 26, 1890, pursuant to St. 1872, e. 343, and St. 1888, c. 131, authorizing it to take land for the erection and maintenance of its water works, and surveyed the same, and set up thereon certain stone bounds which acts constituted the alleged trespass. The defendant proved the acceptance by the town of the statutes above mentioned, and introduced in evidence a vote passed at a town meeting held on April 23, 1890, — under an article in the warrant “ to appropriate money for land for the extension of our water supply, and to authorize the treasurer to borrow the same,” — “ that such land shall be purchased or taken for extension of the water supply of the town as the selectmen and water board for the time being shall decide to be for the best interests of the town, and that the sum of $20,000 be, and the same is hereby, appropriated to pay for the land so purchased or taken.” On April 26, 1890, the selectmen and the water-board of Brookline took the land of the plaintiff, and on June 24, 1890, the taking was recorded in the registry of deeds for the county of Norfolk.</p> <p>The plaintiff thereupon offered evidence tending to prove that in 1874 the town of Brookline took land in West Roxbury containing about seven - and one fourth acres, and constructed thereon a water gallery, and erected water works by means of which water was drawn from Charles River and supplied to the town of Brookline and its inhabitants; that in 1875 it took about twenty-three and one third acres of land adjoining that previously taken, and that the land thus taken and held was all the land necessary and proper for the erection and maintenance of pumping stations, pipes, aqueducts, and other water works necessary and proper for conveying water from the Charles River to the town of Brook-line, and for all other purposes mentioned in the act of 1872; and that on February 7, November 7, December 30, 1889, and on April 26, 1890, the- town took sundry other parcels of land in Needham and Dedham, containing in all about two hundred and ninety-five acres, among the parcels of land.last taken being that of the plaintiff.</p> <p>The plaintiff further offered to show, by expert testimony, that his land was not necessary or useful for the purpose of laying or maintaining aqueducts or pipes, constructing or maintaining reservoirs, or such other works as were necessary or proper for raising, forcing, retaining, distributing, discharging, or disposing of the water which the town was authorized to take from the Charles River, or for any purpose within the authority given by the acts of 1872 and 1888. He further offered to show that the town of Brook-line had laid a pipe across the Charles River from its pumping station on the Boston side to the land taken in Dedham on February 7, 1889, and that it had sunk many wells in the land, and was drawing from them a supply of water, and that from a part of the wells, at least, the water so drawn was not obtained from the river by percolation or otherwise. This evidence was excluded.</p> <p>The plaintiff requested that the question whether the town of Brookline had exceeded its authority under the statutes be submitted to the jury, either under general instructions as to the scope and purpose of the authority given to the town under the statutes, or by special issues framed by the judge. He further contended that the defendant had failed to show that the town had complied with the formal requirements of the statute for taking land.</p> <p>The judge declined to give the ruling requested, and ruled that the question as to whether the town had exceeded its authority and taken more land than it was authorized to take, or any land not within the authority given by the acts of the Legislature, could not be tested in this proceeding; that the defendant had shown that the town had conformed to the formal requirements of the statute as to the method of taking land, and that the defendant’s justification was complete.</p> <p>If the rulings were right, judgment was to be entered for the defendant on the verdict; otherwise a new trial was to be ordered.</p> <p>The second case was a bill in equity, filed June 3, 1893, to remove a cloud upon the title to the land of the plaintiff.</p> <p>The bill alleged that the plaintiff was the owner in fee simple of certain tracts of land in Dedham; that on June 24, 1890, the defendant filed in the registry of deeds for the county of Norfolk an instrument in writing by which it took, or claimed to take, as of April 26, 1890, for the extension of its water supply, pursuant to St. 1872, c. 343, and St. 1888, c. 131, certain parcels of land in Dedham, among them being the land belonging to the plaintiff; that by St. 1872, c. 343, the defendant was authorized to take,hold, and convey into and through it for its use and the use of its inhabitants water from the Charles River, and to take any lands or real estate necessary for laying pipes and aqueducts and maintaining the same, constructing and maintaining reservoirs, or such other works as may be deemed necessary or proper for raising, forcing, retaining, or distributing or disposing of the water; that in 1874, in pursuance of its authority, the defendant took a parcel of land in West Roxbury containing about seven and one fourth acres, and constructed thereon a water gallery, and erected water works, by means of which water was taken from the Charles River, and supplied to the town and its inhabitants; that in 1875 the defendant took a further parcel of land adjoining the land previously taken, containing about twenty-three and one third acres; that the land thus taken and held by the defendant was all the land necessary or proper for the erection and maintenance of pumping stations, pipes, aqueducts, and other works necessary and proper for conveying the water from the Charles River to the defendant, and for all other purposes mentioned in the act of 1872; that on February 7, November 7, and December 30, 1889, and on April 26, 1890, the defendant took sundry other parcels of land in Dedham and Needham, containing in all about two hundred and ninety-five acres, among them being the land belonging to the plaintiff; and that, in pursuance of its alleged right in the land of the plaintiff thus taken, the defendant on October 29, 1890, and at sundry other times, entered upon the land of the plaintiff, and erected boundary stones and otherwise trespassed upon and injured the property of the plaintiff.</p> <p>By paragraphs numbered 4, 5, and 6 of the plaintiff’s bill he alleged that, prior to any of the last four takings or alleged takings of land by the town, viz. on February 7, November 7, and December 30, 1889, and April 26, 1890, the defendant had taken and purchased all the land that it was authorized to take under St. 1872, c. 343, and St. 1888, c. 131; that none of the land comprised within the last four takings was necessary or proper for laying or maintaining aqueducts or pipes, constructing or maintaining reser•voirs, or any other works necessary or proper for raising, forcing, retaining, distributing, disposing, or discharging the water which the defendant was authorized to take from the Charles River ; that especially was the land belonging to the plaintiff not within the authority given to the defendant to take land for the purpose of its water supply; that a large part of the land belonging to the plaintiff was high land of a sandy surface, with a subsoil of ledge and rock, and distant from the river more than eighteen hundred feet; and that river water could not be obtained from it by percolation or '■otherwise, and that it was neither necessary nor fit for any use for which the defendant was authorized to take land; that all the acts of the defendant in taking or claiming to take the land of the plaintiff were beyond the powers of the town, and without legal authority, and in violation of the rights of the-plaintiff; and that the acts of the defendant, and the filing of the taking in the registry of deeds constitute a cloud upon the title of the plaintiff, and that he has no adequate and complete remedy at law.</p> <p>The prayer of the bill was that the taking or alleged taking of the land of the plaintiff be declared void, and that the defendant be ordered to execute to the plaintiff such a release as would remove the cloud upon his title, and that the defendant should be enjoined from taking or claiming to take the land, of the plaintiff, and for the assessment of damages.</p> <p>The answer admitted the taking of the several tracts- of land, as alleged in the bill, and denied paragraphs 4, 5, and 6 thereof. It averred that, after the taking of the land of the plaintiff, the defendant by its servants and agents entered thereon for the purpose of surveying it, and set up certain boundary stones thereon, as alleged in the bill. It further averred, that by St. 1872, c. 343, and St. 1888, c. 131, both of which acts were duly accepted' by it, it was duly authorized to take the various tracts of land as alleged by the plaintiff, and to do all the acts alleged in the premises; that all the land taken by it is either situated in the Charles River or' on its banks, or is surrounded by the river, and is well adapted for the uses of the defendant for its water supply; that all of the land so taken is necessary for the use of the defendant for its water supply, and for the purpose for which it was taken under the statutes; and that all the lands so taken by the defendant are within the water-slied of the Charles River.</p> <p>The defendant also demurred to the bill, and assigned as grounds thereof want of equity, that the plaintiff had a plain, adequate, and complete remedy at law, and loches.</p> <p>Hearing before Morton, J., who, at the request of the parties, reserved the case for the determination of the full court upon the bill and demurrer. If the demurrer should be sustained, the bill was to be dismissed; othérwise, to stand for hearing.</p>

<p>Personal Injuries — Negligence.</p> <p>In an action for personal injuries the evidence entirely failed to disclose liow the accident happened, or what caused it; the plaintiff’s intestate, when asked how it happened, said that he did not know, and the cause and manner of the accident were wholly matters of conjecture. There was nothing to show any defect in ways, works, or machinery of the defendant to .which it might be inferred the accident was due, nor any negligence on the part of the conductor or of any one else in charge of the train or engine. Held, that the action could not be maintained.</p>

Bill in equity, filed January 20, 1893, alleging that on March 18, 1892, the defendant Appleton executed to the plaintiff a lease, for the term of two years from March 15, 1892, of a parcel of land in Brighton, containing about twelve acres, of which premises Appleton was the owner in fee; that on May 15,1892, the other defendant, the Brookline Artificial Ice Company, entered upon the plaintiff’s close and built upon it, and especially around that part of the same known as…

<p>Bill ir equity, filed January 30, 1893, to compel specific performance of an agreement to purchase land.</p> <p>Hearing in the Superior Court, on the bill, answer, and agreed facts, in substance as follows.</p> <p>On May 12,1892, one George E. Fisher, of Kenyon, in the State of Khode Island, who was a devisee under the will of Sarah B. Mayo, deceased, filed a petition under Pub. Sts. c. 120, §§ 19, 20, in the Probate Court for the County of Norfolk, reciting that he had “ an estate in possession in about three quarters of an acre of land, be the same more or less, situated south of North Main Street in the town of Cohasset,” in the county of Norfolk, and “ that said real estate is subject to various contingent remainders under the will of Sarah B. Mayo, late of said Cohasset, deceased,” and asking for the appointment of a trustee, and the sale of the real estate. The petition was signed, “ George E. Fisher, by his attorneys, Simmons and Pratt.” The description in the citation was like that in the petition, except that it did not state that the petitioner had an estate in possession. On the second Wednesday in June, 1892, the Probate Court entered a decree appointing the plaintiff trustee, and authorizing him to sell and convey the real estate in fee simple by private sale or public auction. Subsequent to the entry of the decree appointing the plaintiff trustee and authorizing the sale, one Newhall was appointed by the Probate Court guardian ad litem and next friend to represent the possible issue not in being of George E. Fisher. At the argument in this court, it was agreed, if competent, that the guardian did not take the oath required of him until after the sale of the land by the trustee. The plaintiff, as such trustee, gave bond, and after due notice, pursuant to the order of the court, sold the land at public auction on July 12, 1892, to the defendant, who, through his duly authorized agent, signed an agreement of purchase stipulating that payment should be made “ on delivery of the deed of said land at any time within six days, with a good title.” The plaintiff seasonably tendered the defendant a deed, in which the land was bounded and described as follows: “northerly by said North Main Street about sixteen (16) rods and nine (9) links ; easterly by said highway about twenty (20) links; southerly by land of Mary and Priscilla Lincoln seventeen (17) rods and seven (7) links, and westerly by land of Thomas Reedy, formerly land of Sarah P. Tolman, being the same premises described in a deed thereof from Levi Willcutt to Sarah B. Mayo, dated October 2, 1854, and recorded with Norfolk County Deeds, Book 231, page 211, reference thereto being had.” The defendant refused to accept the deed, or to pay the punchase price.</p> <p>The Superior Court ordered the bill to be dismissed ; and the plaintiff appealed to this court.</p>

<p>Bill m equity, filed August 10, 1893, by the assignees in insolvency of the estate of Moody Merrill, to obtain possession of certain policies of insurance, and for the surrender and cancellation of a certain written instrument purporting to transfer to the defendant the policies of insurance, with a view, as alleged, to give a preference in fraud of the insolvent law.</p> <p>Hearing in the Superior Court, before Hammond, J., who reserved the case for the determination of this court, on facts in substance as follows.</p> <p>The defendant had for many years intrusted the insolvent, Moody Merrill, with the care of a large amount of her property, and had given to him large sums of money for investment for her in stocks and other securities, which were placed in a box kept in Merrill’s safe at his office, but bearing a tag containing, in the defendant’s handwriting, the words, “ Property of Charlotte E. Baker, Boston, Mass.” Merrill collected her interest, and settled with her semiannually, and, a large balance remaining unpaid, he gave her his notes, to which, in July, 1892, she asked for some collateral security. Thereupon, as the defendant testified, he said that he would give to her as security for the notes certain policies of insurance; “ he [Merrill] said he would assign them to me; ... he put them all in my box; ... he said they were collateral security for all those notes; he said he assigned these policies to me for security for those notes; he told me they were all mine; he said they were mine just as much as if I had the money; ... he told me that the writing was to show that these policies belonged to me, and when his estate was settled, or if I should die suddenly, it would be all right, because I saw him put them in the box; ... he said those policies of insurance were mine: that he had assigned them to me, and that he gave them to me.”</p> <p>The defendant further testified, that in December, 1892, not doubting that everything was all right in Merrill’s dealings, she asked him for her box, and in January, 1893, he left it with her for examination; that the policies were in it, wrapped around with a paper, on the back of which was written, in the handwriting of Merrill, “Assignment of policies”; and on the inside in his handwriting, “ Life insurance policies on the life of Moody Merrill, July 25, 1892.” Inside the wrapper was the following written direction: “ Boston, July 25, 1892. In consideration of one dollar to me paid by Charlotte E. Baker, of Boston, widow, I hereby direct James Hewins and Winthrop Minot Merrill, or whoever may settle my estate, in case of my decease, to appropriate the proceeds of Policy No. 121,715, No. 121,716, and No. 121,991 in the Connecticut Mutual Life Insurance Company, and No. 20,550, No. 21,898, and No. 22,947 in Home Life Insurance Company, and No. 166,241 in the Mutual Life Insurance Company of New York, to the payment of any notes or demands said Charlotte may hold against me at the time of my decease, and to pay any balance remaining due after such appropriation from other property belonging to my estate, without waiting to administer upon the same, upon said Charlotte releasing all claim to any stock, bonds, notes, or mortgages held by her or laid aside as collateral security for said notes and demands against me. Witness my hand and seal this twentieth day of July, a. d. 1892. Moody Merrill. [Seal.] ”</p> <p>This writing was enclosed in an envelope addressed in Merrill’s handwriting, “ To James Hewins, Winthrop M. Merrill, or whoever may administer my estate, Boston, July 25, 1892.” This address the defendant testified she read when the.writing, envelope, and policies were put in her box, July 25,1892. After the box had been left with the defendant she kept it in her possession, with its contents, including the policies of insurance, which, before the filing of the bill, the plaintiffs demanded of her.</p> <p>Of these policies three were issued by the Connecticut Mutual Life Insurance Company, and were for $5,000 each ; two of them were fully paid up, while on the third the last premium was not payable until February 28, 1902. They were all payable to the legal representatives of Moody Merrill. Each of them contained this provision: “ This policy is issued and accepted upon the following express conditions and agreements. . . . No assignment of this policy shall be valid unless made in writing indorsed hereon ; and that any claims against this company arising under this policy made by any assignee shall be subject to proof of interest.”</p> <p>Three other policies, for $2,000, $3,000, and $5,000, respectively, fully paid up, and payable to Moody Merrill, his executors, administrators, and assigns, were issued by the Home Life Insurance Company. Each of them provided that “ it is further understood and agreed by and between the parties hereto . . . that this policy shall not be assigned without the consent of the company in writing previously obtained.”</p> <p>The remaining policy, issued by the Mutual Life Insurance Company of New York, was for $10,000, payable to Merrill, “ his executors, administrators, or assigns,” and contained a condition that “ the provisions and requirements printed by the company upon the back of this policy are hereby referred to and accepted as part of this contract, as fully as if they were recited at length over the signatures hereto affixed.” On the back of the policy was the following provision: “ Assignments. This company will not take notice of any assignment of this policy until a duplicate or a certified copy thereof shall be delivered to the company at its principal office; and under no circumstances will the company assume any responsibility for the validity of such assignment; if any claim be made under an assignment, proof of interest to the extent of the claim will be required.” Merrill defaulted on the annual premium payable on April 25, 1893, and in September, 1893, the defendant returned that policy to the company, and on application received in its place a paid up policy for $4,826. This policy contained the provision, “ In consideration of the application for a former policy, No..166,241, and of the surrender of the former policy,” the company promised “ to pay to Moody Merrill, his executors, administrators, or assigns, $4,826, without profits, upon acceptance of satisfactory proofs at its home office of the death of said Moody Merrill during the continuance of this policy, subject to the provisions stated on the back of this policy, which are hereby referred to and made part hereof, and subject to all claims and equities attaching to the ownership of said former policy.” On the back of said policy was the following provision : “ The company declines to notice any assignment of this policy until the original assignment, or a duplicate or certified copy thereof, shall be filed in the company’s home office. The company will not assume any responsibility for the validity of an assignment.”</p> <p>The judge found that these policies, and the paper dated July 25, 1892, set forth in the plaintiffs’ bill, were on that day delivered as collateral security to the defendant for the notes of Merrill, and at the time of their delivery the defendant believed, and from what was said to her by Merrill was justified in believing that the policies were assigned to her as collateral security for whatever was then due or might thereafter become due from him to her; that she read the paper dated July 25, 1892, and understood the language, and that if it has any effect inconsistent with the assignment she did not understand that effect.</p>

<p>Tax — Debts due— Goods, Wares, and Merchandise.</p> <p>Debts due do not come within the description of goods, wares, merchandise, and other stock in trade, taxable under Pub. Sts. c. 11, § 20, cl. 1.</p>

<p>Audita Querela — Deposition — Pleadings as Evidence — Rule of Court.</p> <p>On June 11, 1878, an action was brought by A. on a promissory note for §1,000, signed by B. and indorsed by C., and the ad damnum in the writ was laid at §300. The action was entered in July, 1878, and on July 20 judgment was entered thereon by default for §300. On July 12, 1879, on motion, the judgment was vacated, the action brought forward, the ad damnum was increased to §1,500, and a new judgment entered in favor of A. for $1,116.73 damages. Execution issued, and a small amount was paid thereon. On October 27,1879, A. assigned to C., the indorser, the judgment and execution obtained in July, 1879, and on March 21, 1888, an action was brought on the judgment in the name of A. “ for the benefit of ” C., assignee. This action was defended by B., who set up various equitable defences as against C., but made no mention of the increase of the ad damnum. At the trial it was adjudged that the answer set forth no defence, and a verdict was ordered for the plaintiff, and on May 20, 1889, judgment was entered in his favor for §1,796.13 damages, which was paid by B. On June 6, 1889, B. sued out of this court a writ of error, on which the judgment entered against him on July 12, 1879, was reversed, for the reason that the judgment entered in July, 1878, could not be vacated on a mere motion, and this left the judgment of July, 1878. in force. On September 24, 1891, B. sued out a writ of audita querela to set aside the judgment for $1,796.13 obtained on May 20,1889, and to recover damages. After the action was brought A. died, and his executor was allowed to appear and defend. At the trial the presiding justice found that at some time in June, 1878, and before the entry of the first action, C. paid to A. the amount then due upon the note, and that all the subsequent proceedings set forth in the declaration were begun and carried on by C. for his benefit in the name of A., and without consultation with him, and that the fact that such proceedings were so begun and carried on was known to B. during the pendency of the suit upon the judgment. Held, that as against A., who liad nothing to do with the prosecution of the action on the judgment which was brought m his name for tile benefit of C., and who had received nothing from the judgment, the writ of audita querela would not lie. Held, also, that the pleadings in the action upon the judgment which were offered for the purpose of proving that the issues in this case were involved in that one were admissible for the purpose for which they were offered. Held, also, that the answer in the action on the judgment, which was also offered independently to prove certain facts, and which was signed by B. personally, was competent, as containing deliberate admissions made by him.</p> <p>If the facts testified to in a deposition of one of the parties to an action are material to the issues both in that action and in a later one between the same parties, the deposition is competent evidence in the later action where the deponent has died before the trial.</p> <p>The forty-first rule of the Superior Court, which provides that “ when a deposition has been filed, if not read on the trial by the party taking it, it may be used by the other party, if he sees fit, he paying the costs of taking the same,” does not state a condition precedent; and while it is in the discretion of the presiding justice to exclude a deposition so offered in evidence, if the costs are not paid on the demand of the party taking it, yet if no demand is then made, and the deposition is admitted, it is no ground for thereafter holding it to be improperly admitted that the costs of taking it have not been paid or tendered.</p> <p>A writ of audita querela will be of no avail where the parly complaining has already had an opportunity for defence.</p>

Tort, for injuries occasioned to the plaintiff by being knocked down by a horse driven by the defendant. At the trial in the Superior Court, before Dewey, J., there was evidence tending to show that on June 10, 1891, at about half-past eleven o’clock in the evening, the plaintiff, while crossing on foot a street called West Chester Park, in the city of Boston, was knocked down and injured by a horse attached to a buggy driven by the defendant.

<p>Mortgage — Foreclosure — Authority of Bank Officer — Forcible Entry and Detainer.</p> <p>If a person who purchases an estate at a sale under a power contained in a mortgage, with a provision authorizing the mortgagee to purchase at the sale, is the agent of the mortgagee, and the conveyance to him from the mortgagee and the reconveyance by him to the mortgagee are simultaneous acts, an action against the mortgagor to recover possession of the estate may be maintained by the mortgagee under the Pub. Sts. c. 175.</p> <p>The treasurer of a savings bank has authority to foreclose a mortgage to the bank when directed so to do by the board of investment, if not before by virtue of his office, and his conveyance of the land to a purchaser at a sale under a power contained in the mortgage, and his subsequent acceptance of a conveyance from his grantee, the mortgagee having authority to purchase at a sale, are merely incidental to the powers which existed, or were conferred upon him; and the bank, by accepting the deed and bringing an action to recover possession of the land, ratified his acts.</p>

<p>Mechanic's Lien — Additional Labor to save Lien.</p> <p>It cannot be said, as matter of law, that work done by a mechanic under a contract substantially performed at an earlier date is only colorable because it is trifling in amount and done with the ulterior purpose of saving bis lien.</p>

<p>Two actions of tort, for alleged false representations by the! lessors that a house was in good sanitary condition. Writs dated February 12 and 13,1891, respectively.</p> <p>Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows.</p> <p>On December 7, 1888, the plaintiff, Albert W. Littlehale, hired the premises, furnished, of the defendants, and with his family, including his minor child Blanche, the plaintiff in the second action, entered into occupation thereof, and continued to occupy them as a tenant at will until March 3, 1890. On February 10,1890, the female plaintiff became ill with diphtheria, and during her illness an inspector of the board of health of the city of Boston visited the premises, and detected an odor in a water-closet in the basement of the house, the cause of which the defendants were ordered to remove. In digging under the wall of the basement, in obedience to the order, the defendants discovered an old well, partly beneath and partly outside the house, on the same side as the windows of the sleeping-room of the female plaintiff, but at the other end. The well was partly filled with water and fecal matter from the water-closet, causing a stench. The defendants immediately caused the well to be filled up, and the water-closet to be discontinued. When the well was discovered the water-closet was discharging into it through a lead trap in which were two holes that rendered it useless. The plaintiffs offered evidence tending to show a representation by the defendants of the good sanitary condition of the premises, made at the time when they entered into occupation of the same, which representation was denied by the defendants, and also evidence tending to show that the condition of the well was an adequate cause of diphtheria.</p> <p>The plaintiff in the first action testified, on cross-examination, that he hired the premises for four months beginning December 7, 1888, under a verbal agreement, and that frequently during his occupancy there was an odor about the house which at times was very intense ; that when he renewed his hiring nothing was said by either of the parties with reference to the sanitary condition of the premises; that none of his family used the basement water-closet; and that his daughter Blanche, until the time when she became ill, attended school in another part of the city, and in going to and from school rode on the street cars when she did not walk.</p> <p>The defendants introduced evidence not material to be stated.</p> <p>The judge instructed the jury, in substance, that the injury for which the plaintiffs sought to recover must be shown by them to be the result of a wrong on the part of the defendants*; that it was not a matter for conjecture or speculation, but for proof, of which the plaintiffs must satisfy them affirmatively; and that it was not enough that the condition of the well might be one of the causes that would produce diphtheria, but it must appear that it was the actual cause, and that the diphtheria did result from it.</p> <p>The judge further stated to the jury that considerable had been said with regard to the contract of the parties ; that the plaintiff in the first case said that in April, 1889, he renewed his hiring of the premises, when he told the defendants that, he would take them for a year, and that at that time nothing was said in relation to the sanitary condition of the premises; and that the testimony of the defendants was not materially different, but that they said that the plaintiff in the first case hired the premises up to April 1, 1889, and at that time told them that he would take the premises for a year.</p> <p>The jury returned a verdict for the defendants in both actions ; and the plaintiffs alleged exceptions.</p>

<p>Writ of entry, dated June 18, 1892, to foreclose a mortgage of a parcel of land in the town of Dartmouth, brought by the executor of the will of Jonathan Anthony, the mortgagee, against the heirs at law of the mortgagor, Reuben Anthony. Pleas as to all the tenants, nul disseisin, and that on April 6, 1860, the mortgagee purchased the demanded premises for the mortgagor, who was his son, and at the same time induced his son to execute to him a mortgage thereof; that the demanded premises were purchased on the understanding and agreement that the son was to accept and receive them as his full portion .of his father’s estate; that the mortgage was not given or received as security for a debt, or for money paid or loaned by the mortgagee to the mortgagor, but was given on the express understanding that the mortgagor was not to be called upon to pay it, but that it was shortly to be cancelled and discharged, and that no payment had ever been made upon the principal or interest thereof.</p> <p>One of the tenants, Benjamin P. Anthony, further alleged that the title and possession of the demanded premises had been in himself as the heir at law of Reuben Anthony by open, peaceable, and adverse possession for a period of more than thirty years prior to the commencement of the action.</p> <p>By an amendment to their answer the tenants further alleged that if anything ever was due upon the mortgage the same had been paid.</p> <p>Trial in the Superior Court, without a jury, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The demandant introduced evidence of the execution of a mortgage of the demanded premises, on April 6,1860, by Reuben Anthony to his father, Jonathan Anthony, the demandant’s testator, for $1,600.</p> <p>For the tenants, one Thomas Innman testified that Jonathan Anthony was the father of Reuben, Gould, Joseph, Martha, and Galloupe Anthony; that Reuben bought the demanded premises, which was a farm, in 1860; that.thereafter the witness, who had lived on the farm himself, had several conversations with Jonathan Anthony about it, in the first of which Jonathan asked him if he thought Reuben could get a living there and support his family, to which the witness replied that he did not see how he could do it if he had to pay $90 or $100 interest, and that Jonathan then said that he did not intend that the mortgage should ever trouble Reuben ; and that it was put on the farm to prevent him from making away with it. In a later interview, the mortgagee said that the note or mortgage would never be collected ; that the farm belonged to Reuben and his family; and that the mortgage was put on as a safeguard.</p> <p>Martha A. Albro, a sister of the mortgagor and the daughter of the mortgagee, testified that her father, said he would give Reuben the place if he would sign off that he had got his part; and, in response to her inquiry of him as to why he took a mortgage from her brother, he said that he had not intended to take any mortgage, but that Gould and Joseph thought that he had better do so, as Reuben once in a while would drink too much ; and that then, and once or twice later, her father said that he should give the mortgage back.</p> <p>Edmund Mosher testified that he was the husband of a daughter of Reuben Anthony, and that, in a conversation in 1865 with Jonathan Anthony regarding the mortgage, the latter said he had bought a farm in Dartmouth for Reuben and his children, and he meant them to have it; that Gould and Joseph thought that he had better take a mortgage on it, but that, as he put it on as a safeguard, he was going to take it off; and that after Reuben’s death his son Benjamin P. Anthony had run the farm, and his mother, Reuben’s widow, had lived with him there until her death. On cross-examination he testified that he did not know that Mary Ann Anthony, the widow of Reuben, ever had a lease, and that he was not present when she signed a lease, and did not remember whether he signed the lease as a witness, and was uncertain as to whether he was present on any of the occasions when William Barker visited the farm.</p> <p>Abby F. Mosher, a daughter of Reuben Anthony, testified that she heard conversations between her father and grandfather regarding the mortgage, the first of which was about a year after her father had gone to live on the farm; and that her father asked her grandfather to give him up that mortgage, to which her grandfather replied, “ I will, Reuben; I bought the farm for you for your lifetime, and for your children to have it after you.” Substantially similar statements were afterward made by the mortgagee in the hearing of the witness, who never heard her father or grandfather say anything about paying the mortgage ; that, after the death of her father, her brother Benjamin managed the farm; and that her mother did nothing more than keep house for her brother, who supported her. On cross-examination, the witness testified that all of the foregoing conversations took place within two years after the purchase of the farm.</p> <p>Benjamin P. Anthony, a son of Reuben Anthony, and one of the tenants, testified that in 1860 his grandfather was talking of buying a farm for his father, and that after their return from an examination of the farm in question, which they had heard was for sale, he heard his father say to his grandfather, “ Father, if you will buy me that place and give it to me free and . clear, a warranty deed of it, I will sign off from your property, but I had n’t ought to. It is nothing like the rest will have.” Two or three weeks later his grandfather bought the farm, and said, “Well, Reuben, I have taken you up at your offer; I have bought the place, and you can move into it as quick as you mind to."</p> <p>The witness further testified, that afterward, when his father was living upon the farm, his grandfather occasionally came there, and that several times, when asked by his father to give up the mortgage, his grandfather said that he meant him to have the place; that he did not take the mortgage for any gain of his own, but for his son to have it for his lifetime, and for his children afterward; that his grandfather never asked for any interest or the principal on the mortgage; that after the death of Reuben, on October 29, 1872, the witness carried on the farm himself, paid the taxes, cut the wood and sold it, repaired the buildings, and built a barn; that since the death of his father no one had asked him for principal or interest on the mortgage, and he had never paid any; and that his mother did nothing more about the farm than the general housework.</p> <p>On cross-examination the witness admitted that he had received a letter from Gould Anthony forbidding him to cut wood on the farm, to which he had paid no attention; that William Barker came to the farm about three years before the trial, and said that Gould Anthony and Robert wanted to know if the witness desired to buy the place, to which he replied that he considered that he owned it; that he was positive that his mother, Mary Ann Anthony, never gave a lease of the place; that there was no arrangement by which he was to stay there and beep the buildings in repair and pay the taxes in lieu of rent, but that since the death of his father he had run the place, and considered it as their own.</p> <p>In rebuttal, the demandant testified that he was the son of Jonathan Anthony and co-executor with Joseph Anthony of bis will; that his father died on December 18, 1870; that in 1878 the witness, with his brother Joseph, as executors, gave a power of attorney to William Barker, who foreclosed the mortgage, and gave a lease of the demanded premises to Mary Ann Anthony, the widow of Reuben, who died in 1872; that he wrote letters to his nephew, Benjamin P. Anthony, one of the tenants, forbidding him from thereafter cutting or selling wood, and stating to him that he thought that, if he, Benjamin, would pay to another nephew of the demandant, Robert W. Anthony, a certain amount of rent, the latter would not sell the place ; and that Benjamin and his mother could have the witness’s part of the place rent free.</p> <p>On cross-examination, he testified, that he had no directions from his father regarding the mortgage, and that his father never directed him not to foreclose, or to give the mortgage up and cancel it.</p> <p>William Barker testified, that on December 13, 1878, he went to Reuben Anthony’s place for Gould and Joseph Anthony, for the purpose of entering to foreclose the mortgage, and with a view of leasing the farm, and at that time he went to the house and saw Benjamin Anthony and Mrs. Anthony, and the conversation between them was, in substance, that Gould and Joseph Anthony desired that something should be done by way of asserting their claim, and proposing to lease the premises to the widow of Reuben Anthony.</p> <p>On cross-examination, he testified that he read the lease to Mary Ann Anthony, but that he was not certain that she signed her name to it; that he thought she gave directions to her daughter to sign it for her; that he could not say whether she said she would not sign the lease, or whether he let Mrs. Mosher, her daughter, read it before signing .her mother’s name; that he could, not tell whether Mrs. Mosher knew what she was signing her mother’s name to or not, unless she was present when it was read, and he did not remember whether she was or not; that he thought Benjamin Anthony was present when the lease was signed, although he was not certain ; that at the time of taking the lease no claim was made by Mrs. Anthony or Benjamin that they owned the farm; and that no claim had ever been made by Benjamin or any of the other heirs, or by the widow of Reuben, adverse to the claim of the executors, except that within the two years prior to the trial Benjamin had claimed that the farm belonged to him.</p> <p>Jonathan A. Sisson, a grandson of Jonathan Anthony, the mortgagee, testified that, in March, 1867, he heard Reuben ask the mortgagee if he would give him up the note and mortgage, to which the mortgagee answered, “ No, I shall not, unless you pay it, which I don’t think you ever will, — you know you were not to have but two thousand dollars,” and Reuben replied, “ I know it ”; that the mortgagee then added, “ You know I gave more for the farm than I intended to ”; and that in May, 1867, the mortgagee asked the mortgagor if he could pay him any money on the mortgage, and the mortgagor said, “ No, for I have n’t got it.”</p> <p>Phoebe Goddard testified that, in a conversation between Mary Ann Anthony and Joseph Anthony, twelve or thirteen years before the trial, the former said that her son had the hay all cut and stacked, but that the barn leaked so badly that it was unfit to put the hay in, and that he did not want to go to the expense of repairing unless he could stay there through the winter ; and that Joseph told her to tell Benjamin to repair the bam and put in his hay, and he would make it all right with Gould.</p> <p>Jane H. Sisson testified that Mary Ann Anthony came to her house in Portsmouth, Rhode Island, in 1881, arid said that she had come to have an understanding with Joseph Anthony in regard to the farm she then occupied, and asked her if she knew what they were going to do about foreclosing the mortgage; that after her return from an interview with Joseph, in response to an inquiry as to what conditions had been agreed on, she replied that she was not to be disturbed during her life, provided the taxes were paid, and the place was kept in decent repair.</p> <p>Sarah A. Anthony testified that about fourteen or fifteen years before the trial she heard a conversation between Mary Ann Anthony and Joseph Anthony, at the house of the latter in Portsmouth, Rhode Island, in which she said that she would fix the barn if she and her son could stay there longer, but did not want to put out any money if they could not; and that he told her that they could stay there if they would pay the taxes, and would cut only wood enough to burn, and sell none, and do what was right by the place.</p> <p>Abbie F. Mosher, who signed the lease in behalf of Mary Ann Anthony, being recalled, testified that, in reply to her inquiry as to what the paper was which William Barker desired her to sign, he said: “It is to show we are about to foreclose the mortgage, and that I have notified your mother; she knows it, and you need not stop to read it.” She further testified, that her brother Benjamin P. Anthony was not present at her house when the lease was signed by her.</p> <p>Benjamin P. Anthony, recalled, testified that he never was present when Barker produced a paper, and asked his mother to sign it. This was all the material evidence in the case.</p> <p>It was admitted at the trial that the will of Jonathan Anthony, who at the time of his death was a resident of Portsmouth, Rhode Island, was, on March 4, 1892, admitted to probate in Massachusetts, and Gould Anthony, the demandant, was appointed the executor thereof.</p> <p>• The judge found for the demandant; and the tenants alleged exceptions.</p>

<p>Personal Injuries — Master and Servant — Assumption o f Risk.</p> <p>The plaintiff, a locomotive engineer, was injured while on duty by being carried against a wooden post standing four feet from the track and two feet from the tender beam where he was at the time. The post liad been put up about a week before the accident as a temporary support to a bridge, and the plaintiff, who was an experienced engineer, had passed it daily, but did not know that it was there. Held, that the plaintiff took the risk of the injur}', and that the defendant was not liable. Held, also, that a rule of the defendant forbidding the piling of obstructions within six feet of the track would, if proved, be immaterial.</p>

<p>Personal Injuries — Rights of Passengei Defects on Station Grounds.</p> <p>In the absence of knowledge that only one safe path has been provided by a railroad corporation for leaving a passenger station, and of any notice or direction to take a particular path, a passenger may use any path which appears to be designed and used as a way to the street, and as to him the corporation is bound to see that all such paths are reasonably safe. .• « .</p>

<p>Beneficiary Association — Receiver — Distribution of Funds — Attachment.</p> <p>By a decree of the Superior Court a receiver was appointed for a society purporting to be organized under the provisions of chapter one hundred and fifty-two of the General Laws of the State of New Hampshire, having its location in‘the city of Manchester in that State, and its principal place of business in the city of Boston in this Commonwealth, the object of whose incorporation was to institute lodges throughout the State of New Hampshire and other States and Territories for friendly co-operation and moral and social improvement; to collect and accumulate a fund from which any person holding a certificate of the corporation might be entitled to receive a sum not exceeding $100, according to the terms and conditions of the certificate; to buy, sell, hold, improve, and lease real estate, personal property, and other property necessary or incident to the conduct of such business, and to carry on the business of general brokers in stocks, securities, shares, certificates, bonds, and dioses in action, and in buying and selling the same. The receiver was authorized to take possession of the property and effects of the corporation, to collect all debts due to it, and to distribute the funds among its creditors under the direction of the court. The corporation was directed to deliver to the receiver all assets and property of any kind or nature belonging to the corporation within this Commonwealth, and to execute and deliver to him conveyances and assignments of all its assets and property not within this Commonwealth. Notice was ordered to be sent to all claimants and certificate holders.whose names appeared upon the books of the corporation and who were in good standing, and to be published in certain newspapers, to all claimants and certificate holders to appear and present their claims at a time and place named, before the receiver, who was authorized to hear and pass upon them. Held, that it was evident from the proceedings Of the court, that it intended that the receiver should collect and receive property of the corporation found outside of the Commonwealth, as well as within it, and that holders of certificates resident in other States than this Commonwealth should present and prove their claims before the receiver.</p> <p>A decree of the Superior Court entered upon the report of the receiver of a corporation purporting to be organized under chapter one hundred and fifty-two of the General Laws of the State of New Hampshire, the object of whose incorporation was the institution of lodges throughout the State of New Hampshire and elsewhere for friendly co-operation and moral support, for the collection and accumulation of a benefit fund payable to certificate holders according to the terms and conditions of the certificate, and, as incident to the management of such fund, for the purpose of dealing in real and personal estate and of carrying on the business of general stockbrokers, provided that under the constitution and by-laws of the society all certificate holders who, at the time of the filing of the bill asking for the appointment of a receiver had failed to pay any assessment, including the last one levied, for thirty days after the same was called, and had not been reinstated under the by-laws, must be deemed to have retired of their own motion before the court intervened, and be treated as no longer members in good standing, and held to have no interest in the fund to be distributed. Held, that though this was a different rule from that laid down in New Hampshire where the corporation was organized, it was substantially the same rule as that declared in this Commonwealth in Fogg v. United Order of the Golden Lion, 156 Mass. 431, and was correct.</p> <p>It is doubtful whether an association purporting to be organized under chapter one hundred and fifty-two of the General Laws of the State of New Hampshire, and having its principal place of business in this Commonwealth, the object of whose incorporation is the institution of lodges throughout the State of New Hampshire and elsewhere for friendly co-operation and moral support, for the collection and accumulation of a benefit fund payable to certificate holders according to the terms and conditions of the certificate, and, as incident to the management of such fund, for the purpose of dealing in real and personal estate and of carrying on the business of general stockbrokers, can be called a fraternal benefit corporation within the meaning of St. 1888, c. 429, or whether it was legally established as a corporation under the laws of the State of New Hampshire. If it is'not a corporation, it is a voluntary association of individuals doing business in this Commonwealth under a constitution and by-laws to which all the members have assented, and by which their membership is to be determined, and the members must be regarded either as partners or co-owners of the property, and if the association is not strictly a partnership the property on its dissolution must be distributed among the members in much the same manner as if it were a partnership.</p> <p>The filing of a bill in this Commonwealth against a corporation, and the appointment of a receiver therefor, do not dissolve valid attachments of its property theretofore made, whether in this Commonwealth or elsewhere.</p> <p>A corporation purporting to be organized under chapter one hundred and fifty-two of the General Laws of the State of New Hampshire, with its location in Manchester in that State and its principal place of business in this Commonwealth, the object of whose incorporation is the institution of lodges throughout the State of New Hampshire and elsewhere for friendly co-operation and moral support, for tlie collection and accumulation of a benefit fund payable to certificate holders according to the terms and conditions of the certificate, and, as incident to the management of the fund, for the purpose of dealing in real and personal estate, and of carrying on the business of general stockbrokers, has, it seems, its actual home in this Commonwealth, and its funds held for the benefit of holders of certificates should be distributed here,, so far as the court has power to do this; and it is equitable and more nearly according to the analogy of the provisions of St. 1890, c. 821, relating to the insolvency of foreign corporations, that they should be proportionately distributed among the holders of certificates without regard to their place of residence, and that certificate holders and creditors who have valid attachments or have made proof of claims elsewhere should not be allowed to prove their claims unless the attachments are discharged, or the proofs cancelled, or the property attached or against which proofs have been made is delivered to the receiver here.</p>

<p>Tort, for injuries sustained by the plaintiff while in the employ of the defendant. The declaration alleged that, on June 25, 1891, the plaintiff was employed by the defendant as a lineman upon a fire signal system established by it; that on that day while in the exercise of due care and under the direction and order of the defendant, its servants and agents, and in the course of his employment, he ascended a pole to which were attached the wires of the signal system ; and that the pole was by the defendant, its servants and agents, so negligently constructed, cared for, maintained, and placed in the position it occupied, that it broke while the plaintiff, without knowledge of its condition, was upon it, and fell to the ground, carrying him with it, and injuring him.</p> <p>There was also a count under St. 1887, c. 270. The defendant demurred, on the ground that the declaration set forth no legal cause of action.</p> <p>The Superior Court sustained the demurrer, and directed judgment for the defendant; and the plaintiff appealed to this court.</p>

<p>Malicious Prosecution — Evidence — Damages — Practice.</p> <p>In an action for malicious prosecution on a criminal charge, the plaintiff may show that in the record of “No bills ” returned by the grand jury to whom the alleged criminal charge against him was presented, the substitution of the letter P for the letter F as the initial of his middle name was a clerical error, and that he was the person meant.</p> <p>In an action for malicious prosecution on a criminal charge, evidence as to what the plaintiff paid sureties to go upon the bond required of him for his appearance in the Superior Court, and what he paid for counsel fees, was properly admitted, as was also the evidence as to the nature of the plaintiff’s employment, and the tools required in it, the difficulty which after his discharge he had in obtaining employment, the. amount of his earnings before and after the criminal prosecution, the injury to his feelings and reputation, and the indignity which he suffered.</p> <p>In an action for malicious prosecution on a charge of embezzlement of goods from the defendant’s store, evidence that land was taken by the plaintiff from a purchaser in payment for the goods at a price greatly above its real value would have no tendency to show that the defendant had probable cause for believing that the plaintiff had embezzled the goods, and is not admissible in mitigation of damages.</p> <p>In an action for malicious prosecution evidence as to damages after the date of the writ is admissible.</p> <p>In an action for malicious prosecution on a criminal charge, it is not proper for the defendant to argue to the jury as to the effect of the plaintiff’s motion to dismiss the complaint against him in the Municipal Court.</p>

Tort, for injuries received while in the employ of the defendant, by falling into a hole in the deck of a steam tug owned by the defendant. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows.

<p>Bill in equity, filed November 25, 1892, for the cancellation of a deed alleged not to have been delivered to the defendant, and constituting an alleged cloud on the title of the plaintiff.</p> <p>Hearing before Holmes, J., who entered a decree for the plaintiff, and, at the request of the defendant, reported the case for the consideration of the full court, in substance as follows.</p> <p>The plaintiff, on June 2, 1883, signed and sealed a deed purporting to convey a parcel of land in Boston to the defendant, and caused it to be recorded. He then received it back, and it never was in the possession of the defendant or of any one representing her. The plaintiff never held the deed as the agent or guardian of the defendant or on her behalf, and, when requested by her counsel to surrender the deed, refused so to do. Before such request, but long after he had received the deed back from the registry, he communicated the existence of the deed to the defendant, and spoke to her of the land described in it as hers, as he then supposed it was. The defendant assented so far as she could to the transaction when it was communicated to her. When the plaintiff had the deed recorded he meant to pass the title to the defendant, and supposed that he was doing so. Throughout the transaction he kept possession' of the land.</p>

<p>Beneficiary Association — Attachment — Appointment of Receiver.</p> <p>An attachment of the property of a corporation, if valid when made, is not discharged by the subsequent filing of a bill and the appointment of a receiver of the corporation ; and if the funds attached have been paid over to the receiver by the order of the court without prejudice to the rights of the attaching parties, the receiver takes the property subject to all valid -attachments.</p> <p>The appointment of a receiver is not a bar to suits brought against a corporation before the bill is filed, nor do such suits abate in consequence of such appointment, but the receiver may appear in and defend the suits if the interests which he represents render it proper or necessary.</p>

Writ of entry, dated September 30, 1892, to recover a parcel of land in Wellesley. Plea, mil disseisin, with a disclaimer of any title to the demanded premises except an easement therein. Trial in the Superior Court, before Blodgett, J., who directed the jury to return a verdict for the demandant, and the tenant alleged exceptions, which, so far as material, appear in the opinion.

<p>Personal Injuries — Liability of Public Officers — Public Policy.</p> <p>The plaintiff, who was serving out a sentence at hard labor in the house of correction, duly imposed upon him for a crime of which be had been convicted, was injured by having his band caught in a planing machine, and thereupon brought an action against the superintendent or instructor in the room in which he was set to work, against the master of the house of correction by whom the superintendent was appointed, and against the general superintendent of prisons for the Commonwealth, all of whom were public officers performing public services prescribed by statute. Held, that the action could not be maintained. '</p>

<p>Personal Injuries — Negligence — Due Care — Alighting from Street Car.</p> <p>The plaintiff, who was a passenger on an open electric car, desiring to leave it, motioned for that purpose to the conductor, who gave a signal to the motorman, and the car was slowed up gradually until it stopped at a regular stopping place with the rear platform several feet beyond the crossing of an intersecting street, as required by a regulation of the board of aldermen, and opposite a place in the street upon which it was travelling where the street pavement had been removed, and the foundation of a new road-bed consisting of rubble and cement covered with sand had been laid, but where, the paving blocks not having then been laid, there remained an excavation about six inches in depth. When the car stopped the plaintiff arose from his seat on the right-hand side of the car, took hold of the handle of the seat with his right hand, put his right foot on the running board and his left foot toward the ground, and, glancing around for approaching carriages, but not looking to see where he was stepping, stepped off into the unpaved part of the street and fell on his left side. The accident' occurred in the middle of the forenoon, and there was nothing to prevent him from seeing the excavation if he had looked down, or to prevent him from alighting on the other side of the car where the pavement was in place. Held, that there was no evidence of negligence on the part of the defendant.</p>

<p>Contract, by the administrator of the estate of Edward Hale, against the executors and trustees, of the will of Ezekiel J. M. Hale, to recover a legacy. Writ dated October , 1893.</p> <p>Trial in the Superior Court, without a jury, before Richardson, J., who ordered judgment for the plaintiff, and, at the request of the parties, reported the case for the determination of this court, on agreed facts, in substance as follows.</p> <p>By the seventh article of the will of Ezekiel J. M. Hale, who died on June 4, 1881, he gave to his son, Edward Hale, “ the sum of ten thousand dollars ($10,000), to be paid to him at my decease, if he shall then have arrived at the age of twenty-one years; if he shall not then be twenty-one years old, the same to be paid to him when he shall attain that age. I also give to him the sum of twenty thousand dollars ($20,000), to be paid to him when he shall attain the age of twenty-five years, together with the further sum of twenty thousand dollars ($20,000), to be paid to him when he shall attain the age of thirty years. Also, I give to him the annuity of thirty-six hundred dollars ($3,600), to be paid to him in monthly payments during his life, and at his decease I give to his wife and children, if he shall leave a wife or child alive, the annuity of twenty-four hundred dollars ($2,400), to be paid to them or either of them until the final division of the rest and residue of my estate as hereinafter provided. Provided, however, if the wife of my said son shall re-marry, her interest in said annuity shall at once and forever cease.”</p> <p>Edward Hale, the legatee, was born on May 29, 1863, and died on March 25, 1890, not having attained the age of thirty years. The legacy of ten thousand dollars, payable to him on the decease of the testator or when he reached the age of twenty-one years, and the legacy of twenty thousand dollars payable to him at the age of twenty-five years, were duly paid to him in his lifetime, as well as the annuity of thirty-six hundred dollars.</p> <p>The plaintiff was appointed administrator of the estate of Edward Hale on May 5, 1890, and at a time subsequent to May 29, 1893, when, had the legatee lived, he would have reached the age of thirty years, he brought this action for the recovery of the third legacy, payments of which, on demand, had been refused.</p>

<p>Bill in equity, filed December 13, 1893, by the plaintiff, as one of the next of kin and as assignee of the remaining next of kin of Frederick S. Weber, against the trustees and executors under the will of Frederick E. Weber, seeking to have the.residuary clause thereof declared void, and to have it adjudged that, as to the portion of the testator’s estate not specifically bequeathed or devised he died intestate, and to have such residue held for the benefit of his next of kin.</p> <p>The residuary clause of the will is as follows:</p> <p>“ If, after all the aforesaid legacies and annuities are fully provided for, any surplus should remain in the hands of the trustees, I desire the same to be then distributed among and applied to such objects and purposes of benevolence or charity, public or private, including educational or charitable institutions, and the relief of individual need, regardless of nationality or color, as the trustees for the time being shall deem worthy thereof; and I give the trustees for the time being of such remaining property and estate full power and discretion and authority to appropriate and expend such remaining property in such manner as in their judgment may best promote the objects and purposes above mentioned.”</p> <p>The defendants demurred to the bill, and assigned as grounds thereof, 1st, want of equity; and 2dly, that the bequest was valid, and that there was no intestacy.</p> <p>The Attorney General appeared and answered that in his belief a good public charity was created.</p> <p>Hearing on the bill, demurrer, and answer of the Attorney-General, before Knowlton, J., who, at the request of the parties, reserved the case for the consideration of the full court.</p>

<p>Constitutional Law — Eminent Domain — Breach of Contract — Damages.</p> <p>A town acting through its water commissioners may legally contract to furnish a person with water for use in a boiler to make steam to heat his greenhouse.</p> <p>At the trial of an action for breach of contract by a town to furnish a person with water for use in a boiler to make steam to heat his greenhouse, it appeared that in the regulations which were made part of the contract the right to shut off the water in all cases when it became necessary to make extensions or repairs, and whenever the commissioners deemed it expedient, was expressly reserved. There was evidence tending to show that the damage to the plaintiff was not caused by the exercise of this reserved right, but by a leak which remained undiscovered until after the standpipe had been emptied and there was no longer any pressure in the service' pipes; and the inference was warranted that due diligence was not used to discover such leaks quickly, to shut off the flow of water to the place of the leak, and to start pumping engines so as to prevent the standpipe from being emptied. Held, that the court might properly find a breach of the contract.</p> <p>In an action against a town for breach of contract to furnish the plaintiff with water for use in" a boiler to make steam to heat his greenhouse, whereby injury was caused to his growing crop of lettuce by freezing, the ruling that the plaintiff is entitled to recover the full amount of damage is correct.</p>

<p>Contract, for money bad and received by the defendant to the plaintiff’s use, .being a deposit of five hundred dollars at a sale by auction, under an agreement that it should be forfeited to the seller if the purchaser failed to comply with the terms qf the sale. Trial in the Superior Court, without a jury, before .Hammond, J., who found for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion.</p>

<p>Equity Jurisdiction — Statute — Street Railway — Railroad.</p> <p>When a street railway corporation is constructing its road; in accordance with the powers conferred upon it by its charter, over a location granted to it by the selectmen of a town, and is using or intending to use the safeguards pointed out by the statutes of the Commonwealth, this court has no power to say that it must use other and different safeguards.</p> <p>This court will not consider questions not raised in the court below, and about which nothing appears in the evidence reported.</p>

<p>Contract, against the administrator of a surety on the bond of a trustee given to the plaintiff as judge of the Probate Court for the County of Suffolk. Writ dated October 24, 1892. Answer : 1. A general denial. 2. The statute of limitations.</p> <p>The case was submitted to Barker, J., and by him reserved and reported for the consideration of the full court, upon the following agreed facts, in which the right was reserved to either party to show any further facts material to the case.</p> <p>By the will of Isaac B. Woodbury of Norwalk in the State of Connecticut, which was duly admitted to probate in this Commonwealth, certain trusts were created, and Charles S. Nichols of Salem was named as trustee. In December, 1885, Nichols duly qualified as trustee, and as such gave a bond upon which Henry P. Nichols, the defendant’s intestate, became bound as surety. The second condition of the bond required the trustee to “ manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and to the w.ill of said testator,” and'the fourth condition required that he should “at the expiration of his trust settle his account in said court, and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto.” On .the settlement of the final account of the trustee, on September 15,1892, there appeared to be due from him to the beneficiaries under the will a sum of money, which he, being then insolvent, on demand refused to pay. The sum for which he was so chargeable was the principal and interest of a mortgage originally held by him individually, and afterward, in 1886, by mesne assignments transferred to him as trustee for $8,000,. being more than the value of the mortgaged property. In 1888 the beneficiaries under the will requested the trustee to foreclose the mortgage, and accordingly, on April 30, 1888, having made due entry to foreclose, he sold the premises at auction under a power of sale contained in the mortgage, and, pursuant to a written request of the beneficiaries that “ in case the premises covered by mortgages to yourself as trustee do not find a purchaser at sale for more than enough to cover the amount of mortgages, interest,.and charges, we hereby request you to bid them in for us,” he bid off the property in question for $7,500, that being the highest bid made for the beneficiaries, and being $500 in excess of any other bid made at the auction, and, at the request of the beneficiaries, conveyed it to one Neil-son, in whom the title to the premises still remains, although tender of a deed of the same has since been made by him to the trustee and declined. This investment was subsequently held to be a breach of trust, and was disallowed by the Probate Court, and by this court on appeal in Nichols, appellant, 157 Mass. 20. Neither the investment, nor the breach of trust, nor the foreclosure sale, was ever known to the defendant’s intestate, nor until after March .1, 1892, to the defendant himself. The defendant was appointed administrator on January 20, 1890, and his bond as such was approved on February 3, 1890.</p>

<p>Contract, on a judgment for $300, recovered on January 25, 1892, in the Circuit Court of Boone County in the State of Arkansas, on a policy of insurance issued by the defendant. Writ dated August 9, 1892.</p> <p>Trial in the Superior Court, without a jury, before Richardson, J., who found for the plaintiff, and, at the request of the parties, reported the case for the determination of this court, on agreed facts, the substance of which appears in the opinion. If the finding was correct, judgment was to be entered for the plaintiff; otherwise, judgment was to be entered for the defendant.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by falling into a well of hot water in the defendant’s factory. Trial in the Superior Court, before Corcoran, J., who resigned shortly thereafter, and by the agreement of counsel a bill of exceptions was subsequently allowed by Bond, J., in substance as follows.</p> <p>The plaintiff prior to the accident, which occurred on April 22, 1892, had been employed by the defendant for four or five weeks in the basement of its factory on a roping machine. In the floor of the basement, at one end, was an open tank or well four or five feet across and two or three feet deep, filled with water to within a few inches of the surface of the basement floor. The well was used to catch the drippings of water formed by the condensation of steam in the engines which were near it. It was uncovered, and the floor about it was wet and slippery. From the well the water ran through an overflow pipe into the sewer. For most of the time that the plaintiff worked for the defendant he knew of the well, but was ignorant of the purpose for which it was used. In the course of his employment he had occasion to go to a barrel, which, according to different witnesses, stood from three to ten feet from the well, to get washers for his machine. On the day of the accident, at about half-past ten o’clock in the forenoon, he had placed his tea on a pump which was about two feet from the well to be heated, and as he returned from heating his tea he stopped at the barrel to get some washers out of it, and as he stooped to pick up one which had fallen to the floor he slipped and fell, and both of his feet went into the well, and his legs were scalded up to the knees.</p> <p>At the close of the evidence the defendant requested the judge to rule that the action could not be maintained. The judge declined so to rule; and the jury returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>Trespass — Abandonment of Railroad Location — Evidence. .</p> <p>At the trial of an action of trespass involving the determination of the ownership of a strip of land, it appeared that the strip in question lay between two lines, one of which was two rods and the other two and a half rods westerly of the central line of the defendant’s railroad, which there ran nearly north and south ; that the original location of the railroad at that point was five rods wide ; that when the location was filed the owner of land included in the location lying' next easterly of the strip in question, the boundary line of which separating it from this strip was two rods westerly from the centre line of the location, was also the owner of four other lots southerly of and adjoining the lot lying next easterly of the strip in question, through which the location ran, leaving him the owner of the portions of those lots lying on each side thereof; that after the location was filed, he filed a petition before the county commissioners asking for an assessment of the damages for the taking of the land, in which he alleged that the land taken “ for the building of said railroad and for railroad purposes ” along the edge of the first of these lots, and through the other four lots, was a strip “ four rods in width or thereabouts ”; that upon this petition the county commissioners, as appeared by the record of their proceedings, which was admitted in evidence, awarded damages, describing the land taken as it was described in the petition ; that by an agreement between him and the railroad company, which, together with a deed therein referred to, were introduced in evidence, both bearing the same date as the decree of the county commissioners, it appeared that the defendant was to pay to such owner, within three years from that date, the damages awarded by the county commissioners, and was to receive deeds for all of these lots covering the strip four rods wide through them all, these deeds being delivered in escrow with a provision that any deed might be taken by the company on payment of that portion of the money which was mentioned as the price of the land conveyed by it, and that, if the whole amount was not paid within three years, the deeds should be returned to the grantor, and the railroad company should have no right to the land except that derived from its location, and should be liable for the payment of the commissioners’ award; that the sum mentioned in the agreement was not paid within the time limited therein, and the deed of the lot next easterly of the land in question which had been delivered in escrow was never delivered to the railroad company, although under the agreement it was to be inferred that the land was afterwards paid for in accordance with the award of the county commissioners ; and that this deed described by metes and bounds the strip four rods wide, and to the description were added the words “ the same being the track or road-bed of said ” railroad company “ four rods in width.” Held, that the facts disclosed by the agreement and deed tended to show that of the estate of such owner the railroad company took and paid for a strip of land only four rods wide next easterly of the land in question and extending southward through the next four lots, and that the remainder of the land included in the original location along that line was abandoned, and that these papers, taken in connection with the record of the county commissioners, were competent as tending to show that the railroad company also abandoned the strip of land in question.</p>

<p>Purchase of Gas and Electric Light Plants by Town — Schedule of Property — Call for Stockholders’ Meeting — Ratification by Stockholders of Acts of Directors — Constitutional Law.</p> <p>There is nothing in St. 1891, c. 370, indicating that, after a town has voted at two separate town meetings called as required by § 13 that it is expedient to exerf cise the authority conferred by the statute pursuant to § 3, any additional vote is necessary.</p> <p>The specific.property which a town is required to purchase in accordance with the provisions of St. 1891, c. 370, and the price, time, and other conditions of the sale, are to be determined by the commissioner or commissioners to be appointed under § 13; and if the poles for the support of the wires of an electric light company used in distributing electricity were not legally located, this would not entirely defeat the petition under the statute, and what effect it would have upon the property to be purchased or the price to be paid for it cannot be determined under such petition</p> <p>The schedule of property under St. 1891, c 370, is required for the purpose, not of furnishing such a formal description as may be necessary or proper in a conveyance, but of furnishing such information in detail to a city or town that the parties may intelligently negotiate for the purchase, or, if the parties cannot agree, of furnishing to the commissioners such a bill of particulars as may be necessary or convenient for an intelligent adjudication of the matters which they are to determine. '</p> <p>On a petition by a gas and electric light company to compel a town to purchase its plant, etc., agreeably to the provisions of St. 1891, c. 370, it appeared that a schedule required by the statute was filed by the secretary of the company under the authority of a vote of its directors and that the stockholders at a meeting called to take action upon the proposition to sell, etc., and to transact such other business as should come before the meeting, ratified the action of the directors, but this was more than thirty days after the passage of the final vote by the town that it was expedient to exercise the authority conferred by the statute. It did not appear that there was any change of position on the part of either of the parties between the action of the directors and that of the stockholders, and the petitioner duly filed its petition within sixty days after the filing of the schedule. The town took no action to rescind its votes between tile time of filing the schedule and the vote of the stockholders, if such action could have been taken, and the petitioner never attempted.to repudiate the action of the directors. Held, that the vote of the stockholders must be con sidered as within the call for the meeting at which it was passed, and that, without considering whether the determination to sell the property and to file the schedule according to the statute was within the authority of the directors, and assuming that the filing of the schedule within the thirty days was to be treated as a condition precedent to the right of the company to enforce the obligation of a town to purchase its property, the ratification by the stockholders must he taken as equivalent to original authority.</p> <p>The St. 1891, c. 370, entitled “ An Act to enable cities and towns to manufacture and distribute gas and electricity,” is constitutional.</p>

<p>Poor Debtor-— Jurisdiction — District Court — Prohibition.</p> <p>The St. 1893, c. 396, was not intended to affect the jurisdiction of district and police courts in proceedings for the relief of poor debtors; and a writ of prohibition will not issue to restrain the justice of a police court from examining a debtor arrested on execution, who has made application to him for a notice of his desire to take the oath for the relief of poor debtors, on the ground that the certificate authorizing his arrest and under which he had entered into a recognizance was issued hy a district court of the same county within the judicial district of which neither the debtor nor creditor lived or had their usual place of business.</p>

Indictment for the larceny of a watch, chain, and charm, alleged to be the property of Preston O. Sweet. At the trial in the Superior Court, before Lilley, J., there was evidence tending to show that the name of the owner of the property was O. Preston Sweet, but that he was also known as Preston 0. Sweet, and that he was as well known by the name of Preston O. Sweet as by the name of O. Preston Sweet.

<p>Consolidation of Railroad Companies — Rights of Dissenting Stockholder.</p> <p>Where the Consolidation of two railroad companies has been authorized by legislative authority, a dissenting stockholder cannot maintain a claim for better terms than those given by the vote of consolidation, if such vote was by a majority of the stockholders of each company acting in good faith and within such legislative authority.</p> <p>The provisions of Pub. Sts. c. 105, §§ 41,42, as to the ordinary liquidation or winding up of the affairs of a corporation, do not apply to the consolidation of two railroad companies under legislative sanction.</p>

Petition, filed October 20,1892, alleging that the respondent was the libellant in a libel for divorce, filed February 12, 1891; that a decree nisi was granted therein against the petitioner, and in favor of the respondent, on February 12, 1892; that on April 20 next following, the respondent, well knowing he could not legally marry again, was married to one Annie Rooney, each using an assumed name; that the respondent subsequently, viz. on August 19, 1892, applied for and…

<p>Contract, for the failure to sell and deliver one thousand barrels of flour. Writ dated June 24,1892.</p> <p>Trial in the Superior Court, without a jury, before Maynard, J., who ruled that the action could be maintained and found for the plaintiff; and the defendants alleged exceptions. The material facts appear in the opinion.</p>

<p>Devise in Trust — Vested Remainder.</p> <p>After giving to his wife his household goods, etc., a testator gave the residue of his property to trustees to pay to his wife the net income for life, after her decease an annuity for life to her niece, and as soon as might be after his wife’s decease certain money legacies, one of which of ten thousand dollars was on a condition, and'immediately after his wife’s decease to set apart a trust fund of five thousand dollars for one of his nephews. The sixth clause of the will gave two third parts of the residue to two of the trustees as their own, and the seventh clause was as follows: “ It is my will that said surviving trustees, from and after the deeeasé of my said wife, (subject to the payment of said annuity and legacies,) continue to hold in trust the other undivided third part of said rest and residue of my said property and estate, including the amount of said legacy of ten thousand dollars, should the same be forfeited for non-compliance with the condition thereto annexed, and also including any unexpended portion of said trust fund of five thousand dollars, but in’ trust, nevertheless, to be held, managed, and invested by them with a view to safety and profit, and the net income thereof paid semiannually to my niece A. for and during her life; and, to take effect at her decease, I give, bequeath, and devise said third part to her children, in equal shares, to them, their heirs, executors, administrators, and assigns forever." At the time of the making of the will and at the death of the testator A. had four children, three of whom were living at the time of A.’s decease, one having died previously never having had any children, field, that a right to one fourth of the trust estate vested in each of the children at the testator’s decease, and that the share of the deceased child, so far as real estate being less than five thousand dollars in value, passed to her husband under Pub. Sts. c. 124, § 1, and, so far as personal property, was to be paid over to her administrator to be disposed of according to law as assets of her estate.</p>

<p>Mechanic's Lien — Person acting for Owner — Amendment after Hearing on the Facts — Meaning of “ Contract” in Statute—Insufficient Certificate — Subscribing and Swearing to Statement — Ratification — Rights of Mortgagee under previous Mortgages — Application of Payments by Petitioner — Work done upon Extension over Owner's Line.</p> <p>If a petition alleges that work for which a mechanic’s lien is claimed was done under a contract with E., and that the owner of the land is A., and contains no allegation that E. was acting for A. in making the contract, or that he had any authority under which a lien could be created, the petition is defective; but if, on the case being tried as if the petition had been in proper form, it is proved that when the contract was made one M. owned the property and that E. was authorized by him to make the contract, the petitioner may amend his petition, and make the necessary allegations in accordance with the facts, on such terms as the Superior Court may prescribe, and the lien may then be established in accordance with the findings of the justice who heard the case.</p> <p>The word “contract,” in Pub. Sts. c. 191, § 5, where it is provided that “the lien shall not avail or be of force against a mortgage actually existing and duly recorded prior to the date of the contract under which the lien is claimed,” includes not only formal bilateral contracts, oral or written, but also contracts created by an agreement on one side and action under it on the other side, such as to bring the parties into a contractual relation before the mortgage is recorded ; and when a contract exists, the lien for all work done under it relates back to the time when the contract first became binding, and the making of a mortgage after an agreement has become binding as a contract does not affect the right to have a lien for work afterward done under the contract; but if the arrangement is binding only from day to day, and the petitioner ceases to work for two months, during which the mortgage is made and recorded, and he resumes work in the following month under an arrangement similar to the former one, he has a lien which cannot be enforced against the mortgagee, but only against the owner subject to the rights of the mortgagee.</p> <p>The objection that a certificate, filed under Pub. Sts. c. 191, is insufficient, is, so far as the interest of the mortgagee is concerned, rendered immaterial by the fact that no lien can be enforced against him for other reasons; but the imperfections will not defeat the claim of the petitioner against the owner, as provided in § 8 of that chapter.</p> <p>By Pub. Sts. c. 191,.§ 6, the statement filed in the registry may be subscribed and sworn to by some one in behalf of the claimant as well as by the claimant himself, and a ratification of such a signing is equivalent to an original authority.</p> <p>On the trial of a petition to establish a mechanic’s lien under Pub. Sts, c. 191, evidence that a mortgage claimed to have preference to the lien under § 6 of that chapter was given to secure the payment of money used in paying previously existing mortgages is rightly excluded, as the mortgagee in taking his mortgage acquires no rights under previous mortgages subsequently discharged.</p> <p>At the trial of a petition to establish a mechanic’s lien under Pub. Sts. c. 191, .. findings in regard to the proper application of payments by the petitioner, first to the materials furnished, and afterwards to the labor, will not be disturbed by this court, if warranted by the evidence.</p> <p>At the trial of a petition to establish a mechanic’s lien, the respondent contended that no lien could be established because a portion of the building extended over the line of the land described in the petition upon land of an adjoining owner. The judge found the value of the work done by the petitioner upon the extension of the building over the line, and upon that part standing on the land described in the petition. The dimensions of the building were before the court, and an estimate was made by an expert witness who knew all the facts. It also appeared that there was conflicting evidence as to the mason work done upon each of the parts of the building, the particulars of which were not reported. Held, that it was fair to infer that these particulars may have been of assistance to the judge in applying the other evidence, and that it could not be said that there was no evidence to warrant the finding that the lien should be sustained for the work done upon that part of the building standing on the land described in the petition.</p>

<p>Tort, against the owners of a vessel for personal injuries occasioned to the plaintiff while on board the vessel in harbor through the breaking of a triangle on which the plaintiff was sitting and scraping a mast. Writ dated March 17, 1890.</p> <p>At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict for the plaintiff, and the judge, at the request of the parties, reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Replevin of a horse. Writ dated August 10, 1892. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, in substance as follows.</p> <p>The horse in question was purchased in July, 1890, by Herbert W. Miller, a resident of Boston, through his agent, George Bryden, of Hartford, in the State of Connecticut, who thereafter kept it for him in Hartford. Miller died in September, 1890, and in- the following November the plaintiff, who was his widow, having been appointed administratrix of his estate, demanded the horse of Bryden, who refused to deliver it to her, claiming to own a half interest therein. In March, 1891, Bryden sold and delivered the horse as his own property to Joseph C. Davenport and Ada L. Hyde, both residents of Connecticut.</p> <p>Ancillary administration was subsequently granted to the plaintiff in Connecticut, and in November, 1891, she brought an action in that State against Bryden, Davenport, E. A. Hyde, and one Shillinglaw, for the conversion of the horse, which was in the possession of the three last named defendants, and attached the horse upon mesne process. She recovered judgment against Bryden only, on which execution was issued and delivered to an officer, who, after an ineffectual demand on Bryden for its payment, levied on the horse and advertised it for sale, but before he had sold it it was replevied from him by Davenport.</p> <p>In August, 1892, Davenport intrusted the horse to the defendant, who brought it into this Commonwealth, where it was replevled by the plaintiff. When this action was begun, the judgment recovered in trover against Bryden, who was financially worthless, remained unsatisfied, and the replevin suit of Davenport against the officer was still pending in Connecticut.</p> <p>The case was argued at the bar in December, 1893, and after-wards was submitted on the briefs to all the judges.</p>

<p>Contract, to recover for the use of a party wall. Writ dated February 16, 1892.</p> <p>The first count of the declaration alleged that prior to 1822 Samuel G-. Perkins, who was the owner of two adjoining lots of land on Bedford Street in the city of Boston, built houses thereon with a party wall between them; that he afterward sold them to different purchasers, in each deed the boundary line between the houses being described as “ a line running through the middle of said partition wall”; that in 1870 one of the lots was conveyed to the Union Institution for Savings, which at its own expense strengthened the foundation and built the party wall higher; that in 1871 the other lot was conveyed to the defendants, who built their house higher, and used the wall so built by the Union Institution for Savings; that in 1886 the Union Institution for Savings conveyed its lot to the plaintiff; that the defendants have continued to use the party wall in the manner described, and have never paid for such use, wherefore they owe the plaintiff for the value of such addition. The second count was for a further use of the addition to the party wall made since the plaintiff became the owner of his lot.</p> <p>The defendants demurred to the declaration, and assigned as grounds of the demurrer, that the plaintiff had not stated a cause of action, and that the plaintiff had not set forth any contract between himself and the defendant.</p> <p>The Superior Court sustained the demurrer; and the plaintiff appealed to this court.</p> <p>The case was argued at the bar in January, 1894, and after-wards was submitted on the briefs to all the judges.</p>

<p>Contract, to recover one half of the cost of a party wall. Writ dated September 14,1892.</p> <p>The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, in substance as follows.</p> <p>The plaintiff and Nathan Matthews, Jr., who were owners of adjoining lots of land situated on Falmouth Street in Boston, on Apiil 21, 1888, executed an agreement which, after granting to either party thereto the right to erect a party wall on the boundary line of their respective estates, contained a provision that “ when any portion of any wall so built, extended, or rebuilt shall be used by the party or by the heirs or assigns of the party by whom the portion of the wall so used was not constructed, he or they shall pay to the party who constructed the same, or to his heirs or assigns, owners of the said premises, one half of the actual cost of the portion of the wall (including the piling and the foundation thereof) so used by him or them.” Shortly thereafter, the plaintiff erected such a wall, in accordance with the terms of the agreement.</p> <p>On April 28, 1888, Nathan Matthews, Jr. conveyed his land to his father, the defendant, who on April 30 conveyed the same to William Bassett, at the same time taking back from him a mortgage of the land for $11,300. All the conveyances were made subject to the party wall agreement.</p> <p>In August, 1888, Bassett began the erection of a building on the land conveyed to him, and used the party wall in its construction, but in December, 1888, when the building was completed as far as the first floor, he was adjudged insolvent, and in consequence thereof work on the building ceased until June 20, 1889.</p> <p>In March, 1889, Bassett received his discharge in insolvency, and in April, 1889, he released all his rights in the premises to the defendant, who on June 15,1889, again conveyed to him the premises, taking back a mortgage for $11,300 payable in one year, the consideration of which was the agreed price of the land, and the amount of certain advances agreed to-be made by the defendant by a contract of even date therewith.</p> <p>After this, Bassett, on June 20, 1889, resumed work on the unfinished building, and by August, 1889, had the roof in place. The work was paid for by Bassett partially out of advances made by the defendant, and partially from his own resources.</p> <p>The last named mortgage was on July 18, 1890, assigned by the defendant to one Howe, who on July 28, 1890, made entry to foreclose for breach of condition, and on August 21,1890, sold the premises by auction, under a power of sale contained in the mortgage, to one Robinson.</p> <p>Both Howe and Robinson acted entirely in the interest of the defendant, and never had any beneficial interest in the premises, and the defendant received no consideration for his deeds to Bassett except the mortgages taken back from him. The advances by the defendant to Bassett did not exceed sixty per cent of the cost of the building.</p> <p>The case was argued at the bar in January, 1894, and after-wards was submitted on the briefs to all the judges.</p>

<p>Devise — Power of Disposal by Will.</p> <p>A testator, who was not a lawyer, by his will drawn bv himself gave all his estate to his wife for life with remainder over of portions thereof to nephews and a charity, and the residue he left to his wife “ to dispose of as she may deem expedient, but in the event that she should make no disposition of the same during her lifetime, I give the remainder of my estate not disposed of above to my heirs at law.” Held, that the wife was given a power of disposal thereof by will as well as by deed during her life.</p>

<p>Guaranty — Acceptance of Guaranty — Notice to Guarantor — Discharge of Guarantor.</p> <p>Where the plaintiff signed the promissory note of H. as surety, relying upon a promise contained in a letter to him from the defendant saying, “ If H. needs more money let him have it, or assist him to get it, and I will see that it is paid,” and looked to the defendant solely for reimbursement if called upon to pay the note, he was authorized by the letter in relying upon the defendant as a guarantor.</p> <p>An offer as a guaranty becomes effective as a contract upon the doing of the act specified in the offer, and the doing of the act constitutes the acceptance of the offer and furnishes the consideration.</p> <p>Ordinarily there is no occasion to notify a guarantor of the acceptance of an offer of guaranty, for the doing of the act specified in the offer is a sufficient acceptance ; but when the guarantor would not know of himself from the nature of the transaction whether the offer had been accepted or not, he is not bound without reasonable notice of the acceptance seasonably given after the performance which constitutes the consideration.</p> <p>If notice of the act which constitutes an acceptance of an offer of guaranty is necessary, the implication is that it shall be given in a reasonable way, depending upon the nature of the transaction, the situation of the parties, and the inferences fairly to be drawn from their previous dealings in regard to the matter, and if they are so situated that communication by letter is naturally to be expected, the deposit of a letter in the mail is all that is necessary, though the letter may not be received by the guarantor.</p> <p>A surety upon a promissory note who relies upon the guaranty of a third person for reimbursement is not required, after payment of the note, to attempt to collect the money from the maker, and it is no defence in an action on the guaranty that he did not promptly notify the guarantor of the default of the maker, at least in the absence of evidence that the guarantor was injured by the delay.</p> <p>The guarantor of a surety upon a promissory note is discharged from liability if, at the maturity of the note, the time for its payment is extended without his consent, unless he subsequently assents to the extension and ratifies it.</p>

<p>Personal Injuries — Due Care — Negligence — Employers' Liability Act.</p> <p>At the trial of an action for injuries occasioned by the caving in of the side of a sewer trench which was thirty or forty feet long, twelve or fifteen feet deep, " three feet wide at the top and one and a half feet wide at the bottom, where the plaintiff was at work, there was evidence tending to show that there was no bracing in the trench except two blocks consisting of portions of earth about four feet wide left untouched, so as to form braces which were about twenty-five feet apart; that there was no unexpected or extraneous cause for the caving in of the earth, and that the accident seemed to have resulted from natural causes ; that there was a foreman in charge of the work, whose sole or principal duty in the service of the defendant was that of superintendence, which included the duty of taking proper precautions for the safety of the men at work in the trench ; and that the plaintiff was a person of experience in digging trenches, whose duties did not require him to study the conditions affecting the stability of the earth at the sides of the trench, or to do anything except to work under the directions of the foreman. Held, that the evidence should have been submitted to the jury, who could have properly inferred that the foreman in charge of the work was negligent, and that the plaintiff was in the exercise of due care.</p>

<p>Tort, by the administratrix of the estate of James C. Bertie, for injuries occasioned to her intestate from the alleged negligent failure of the defendant to repair a defective drain on premises occupied by the intestate as a tenant at will. Writ dated December 27, 1892.</p> <p>The declaration alleged that on or about September 1, 1887, the plaintiffs intestate became a tenant at will of the house numbered seventy-six Poplar Street in Boston, paying rent therefor at the rate of thirty dollars per month, and that the tenancy continued to the date of his decease; that in the year 1889 the defendant became the owner of the house, and acquiesced in the tenancy of the plaintiffs intestate, and received from him payment of rent; that in the year 1891 the yard of the premises became out of repair and dangerous, and the plaintiff’s intestate requested the defendant to repair the same, which he agreed to do: and in the course of the repairs the defendant discovered that the drain of the premises was out of repair and in bad condition, and he was informed that certain specified repairs were needed to put the drain into proper condition, but that he negligently refused to make such necessary repairs, and knowingly directed that the drain be imperfectly repaired, and in fact merely covered up and concealed; that the defendant, knowing the existence of the defective drain, neglected to inform the plaintiff’s intestate of the condition thereof and concealed the fact, and, though informed of the condition of the drain and of the danger thereof to the plaintiff’s intestate, he neglected to repair the same, and falsely and deceitfully represented to the plaintiff’s intestate that the repairs had been properly made ; that by reason of such negligence on the part of the defendant, the plaintiff’s intestate, being ignorant of the condition of the drain, contracted typhoid fever therefrom, and suffered greatly in body and mind up to the time of his decease, and was put to great expense for medicines, medical attendance, and nursing, and was incapacitated for labor; and that the plaintiff’s intestate used due care with reference to the drain, but that the defendant did not use due care.</p> <p>The defendant demurred to the declaration, and assigned as grounds for the demurrer, that the declaration set forth no cause of action; that it did not appear that the defendant was under any legal obligation to repair the drain, or that he made any representations in regard to its condition, or made any warranty in respect to the premises; that it appeared that wdren the plaintiff’s intestate became, as alleged, the tenant of the defendant, the latter had no knowledge of any defects, and concealed nothing at the time; and that the existence of a defective drain, of itself, is not such a defect as a landlord is bound to disclose to a tenant, even at the time of the letting of the premises.</p> <p>The Superior Court sustained the demurrer, and ordered judgment for the defendant; and the plaintiff appealed to this Court.</p>

<p>Bill in equity, filed January 9,1894, by the administrator de bonis non with the will annexed of the estate of William Bramhall, to obtain the instructions of the court as to the construction of the will.*</p> <p>At the request of the parties, the case was reserved on the pleadings, by Knowlton, J., for the consideration of the full court.</p>

<p>Divorce — Entry of “ Without Prejudice ” — Jurisdiction — Domicil.</p> <p>On a libel for divorce it appeared that a former libel between the same parties was dismissed for want of jurisdiction “ without prejudice.” Held, that, there being no limitation upon the effect of the words “ without prejudice,” they must be taken to have been used generally, and to mean without prejudice to the right of the libellant to bring a new suit and to try it as if the questions involved were all presented for the first time.</p> <p>The theory of law, that husband and wife are one person, and, wherever the wife may be actually, she is constructively with her husband, is not applicable to a wife who remains in a place where she and her husband last lived together after he is gone, and brings a suit against him for a divorce founded on his misconduct while they were together. She may retain her old domicil, acquired when she and her husband were actually abiding in the same place, and is not compelled to follow him to a place where she never lived merely because before she discovered his offence she intended to go there with him; but this exception to the general law of domicil has no application in suits brought by the husband against the wife for her misconduct.</p>

<p>Contract — A utbority of Borrower to bind Lender for Keep of Horse.</p> <p>A person who lends a horse to another without more does not authorize the borrower to make him answerable for its keep or improvement.</p>

<p>Contract — Maintenance and Champerty — Compensation of Purchaser of Property — Evidence.</p> <p>A contract which contemplates merely a purchase of property, and provides that the services of the purchaser, who is an attorney at law, shall be paid for by giving him a share of the profits to be made by the purchase, is not champertous; and a question to the plaintiff whether he had released his interest in the property to the defendant was rightly excluded, if the plaintiff disclaimed all interest in it, and all the evidence showed that he had no interest, and that there was no question upon that point before the court.</p>

<p>Deceit — Fraudulent Representations—Evidence— Pleading— Counts in Contract and Tort — Verdict — Exceptions — Judgment — Agency — Partners as Joint Tortfeasors.</p> <p>A false statement as to the frequency of the arrival and departure of railroad trains at different hours of the day at a certain railroad station in the vicinity of Boston, made as an inducement to purchase property near that station, has such a relation to the value of the property as to be the subject of a fraudulent representation.</p> <p>In an action for false and fraudulent representations the declaration alleged that the defendant, to induce the plaintiff to purchase a farm near a railroad station in the vicinity of Boston, made false and fraudulent representations to him regarding the frequency of the running of trains between that station and Boston at different hours of the day; that the plaintiff believed the representations to be true, and was thereby induced to purchase the farm. Held, on demurrer, that the times of the running of railroad trains was not a matter so easily ascertainable, under all circumstances, as never to be the subject of a fraudulent representation.</p> <p>In an action for false and fraudulent representations the circumstances under which the representations were made need not be set out in the declaration.</p> <p>In an action for false and fraudulent representations it appeared that the defendant when he made them was acting as agent of the plaintiff. Held, that in a relation of confidence the plaintiff would be warranted in relying on the assertions of the defendant, when he would not if the defendant were representing only an adverse interest. ></p> <p>At the trial of an action for false and fraudulent representations it appeared that the plaintiff, who was a native of Sweden, and spoke English imperfectly, took a train in Boston with the defendant to go to N. S. to look at a farm there with a view to purchasing it; that while in the car waiting for the train to start, the defendant, in response to an inquiry of the plaintiff, undertook to find out for him in regard to the running of the trains between Boston and N. S.; that the defendant went out of the car, procured a time table, and, returning, looked at it, and falsely represented that a train left N. S. at 5.50 in the'morning; that when he made the statement he professed to be reading from the time table, and after he had finished reading from it he put it in his pocket; that later he looked at it again, and stated falsely that there were many trains from Boston to N. S. in the evening; and that the plaintiff exchanged his property in another place for the farm in N. S., the defendant acting as his broker m effecting the exchange, and receiving a commission from the plaintiff for his services. Held, that under these circumstances it could not be said, as matter of law, that the plaintiff was so careless in trusting the defendant that he should be precluded from recovering for the fraud practised upon him in regard to the running of the trains.</p> <p>In an action of tort for false and fraudulent representations with a count in contract for money had and received, to which is annexed a bill of particulars claiming for cash paid “ by mistake and under misapprehension of facts at the time of the conveyance,” etc., evidence may be introduced under that count which will warrant a recovery, and in the absence of a motion for further particulars the count will be considered sufficient.</p> <p>At the first trial of an action in the Superior Court the presiding judge ruled that the action could not be maintained on one of the counts of the declaration, and submitted the case to the jury upon another count, upon which a verdict was returned for the plaintiff, and the defendant alleged exceptions, which were here sustained. To the ruling on the first count the plaintiff alleged exceptions, which were allowed, but were never entered in this court. On motion of the defendant, after the former decision in this court, and after the plaintiff had amended his pleadings, the Superior Court dismissed the plaintiff’s exceptions, but refused t.o affirm the ruling upon the defective count. Held, that the refusal was right, as there was no judgment of the Superior Court to affirm.</p> <p>In an action for false and fraudulent representations a special finding of the jury that the defendants were partners renders immaterial any question as to the sufficiency of the evidence to warrant an instruction in regard to a possible combination or conspiracy of the defendants.</p> <p>An exception of the defendant to a refusal of the presiding judge to rule that the action cannot be mainlained on a given count of the declaration will not be sustained when the bill of exceptions recites that there was evidence tending to prove that count, and nothing appears to show that there was error in submitting it to the jury.</p> <p>Where the declaration contains a count in contract and another in tort, and both are alleged to be for the same cause of action, it is error for the jury to return a verdict for the plaintiff on both counts, and in such a case the plaintiff, as a condition of taking judgment on the finding, should be required to remit his verdict on one of the counts, and the judgment should then be rendered on the other.</p>

<p>Contract. The declaration was upon two notes, one for $1,600 and the other for $100, both being on demand, to the order of Aaron O. Wilder, guardian of Fanny G. North, with interest at the rate of six per cent per annum. The declaration also contained a count on an account annexed for $1,700, for the purchase price of a farm, with interest amounting to $786.53, making $2,486.53, less a credit of $840 for board of Fanny G. North until her death, on January 30,1888, leaving a balance due of $1,646.53. The defendant set up, among other defences, the statute of limitations.</p> <p>The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts, in substance as follows.</p> <p>On October 24, 1882, Aaron O. Wilder of Leominster was appointed guardian of Fanny G. North of Westminster, an insane person, and continued as such until her death, on January 30, 1888. Wilder, acting under a license of the Probate Court, on March 27, 1883, sold certain premises in Westminster to Albion S. North, who bid at the sale the sum of $4,000. The premises were sold subject to a mortgage for $2,600. North gave to Wilder in payment for the land the two promissory notes declared upon. The sale was insufficiently advertised, and was treated as void by Wilder and North, and no formal conveyance was made. Wilder proceeded to sell the premises' again by public auction, on October 30, 1883, all statutory requirements being fulfilled, and the premises were struck off to North at a price which for the purposes of the agreement was admitted to be $4,000. No new notes were given and no pay-merits made on account of the second sale, nor was any agreement made or understanding had as to how or in what manner the premises should be paid for. -On December 5,1883, Wilder executed a deed of the premises to North, but it'was not delivered to North or to his agent until after the bringing of the suit. Save as may appear from facts hereinafter stated, no payments were ever received by Wilder from North on account of the notes, which remained in Wilder’s possession until about February 1, 1891, nor so long as they remained in his possession were any indorsements made thereon, nor except as herein .stated were any payments of any name or nature made to or applied by Wilder or the plaintiff to the account against North growing out of the first or second sale. Wilder sued North upon the notes, and upon an account annexed for the purchase price, the suit being still pending in the Superior Court and the writ being dated July 20, 1890. About February 1, 1891, Wilder indorsed the notes to Elliott H. Peabody, the plaintiff in this action, who had been duly appointed administrator of the estate of Fanny G. North. Thereupon Peabody sued out his writ in this action, dated February 16, 1891, against North. No payments upon the notes or account set forth in Peabody’s declaration have ever been made to Peabody, or to any one for him, by North, or by any other person for North, except as may be inferred from the facts herein referred to. The notes and accounts set forth in Peabody’s declaration are the same notes and accounts set forth in Wilder’s suit and declaration, and they are for the same cause of action.</p> <p>Previously to the first sale Wilder desired North to purchase the premises and to take charge of Wilder’s ward, agreeing to pay him for his charges and disbursements, the sum which should become due therefor to go towards the price to be paid by North for the farm; but no specific agreement was made to that end, and no talk or understanding was had after the first or second sale, except as that understanding might be inferred to continue. North entered into possession, claiming to be the owner of the farm, and took upon himself the care and maintenance of the ward, who remained in his care until her death. No accounting was ever had with Wilder, but the amount expended by North was $1,376.68, as appears in detail in the suit of North v. Wilder now pending in the Superior Court. Wilder credited himself in his account as guardian, filed in the Probate Court, with a portion of the sum due to North under the contract or arrangement.</p> <p>The judge was to draw any inferences of fact from the foregoing facts which might legitimately be drawn therefrom, and if he found for the plaintiff the damages were to be assessed at $924 as of November 1, 1892; otherwise, judgment was to be entered for the defendant.</p>

<p>Falling away of Grade' of Street — Damages — Statute.</p> <p>A petition was brought, under the Pub. Sts. c. 52, §§ 15, 16, for a jury to assess damages occasioned to the petitioner’s estate by raising the grade of a street, which grade was established in 1874, by the street commissioners of the respondent city, and in that year was built to grade, and the 'buildings abutting upon it, including the petitioner’s premises, were raised to conform to the grade, and the damages caused thereby were either released or paid for. In 1890 the whole of the district, including the street in question, fell away from the grade previously established. Held, that, whether the falling away was sudden or gradual, the petitioner had no remedy under the statute.</p>

Tort, for personal injuries occasioned to the plaintiff by being struck by an electric car of the defendant. At the trial in the Superior Court, before Blodgett, J., the following facts appeared. The plaintiff was engaged at about 2.30 p. m. on Saturday, July 23,1892, in taking down a tree standing upon private land abutting upon Warren Street, a public highway in Boston, sixty feet in width, having been employed for that purpose by the owner of the land.

<p>Petition to the judge of probate of the county of Suffolk, by Asahel W. Sawyer and James Henry Freeman, executors of the will of James H. Freeman, late of Boston, deceased, alleging that the estate was so far settled that nothing-remained to be done but to pay the legacies given, and administer the trust created by the will; that the legacies had been paid in part; that the widow, Amanda Maria Freeman, named in the will, who had waived the provisions made for her therein, had been paid in full her thirds, and the allowances made to her by the court; that the expenses of administration had also been paid in full; that the estate could pay but a little over sixty-eight per cent upon the legacies; and that the petitioners were desirous to pay the legacies as far as the estate would pay them, settle their accounts, and administer according to law the trust imposed upon them, which was in the following words, viz.: “ I give to the executors of this will hereinafter named, and the survivor of them, the sum of eight thousand dollars, in trust nevertheless to invest the same and collect the income thereof and therefrom, and pay or expend such income semiannually so far as may he practicable to or for Amanda Maria Freeman, formerly Amanda Maria Farrington, of Franklin, in the county of Norfolk and said State of Massachusetts, so long as she shall live, and upon the death of said Amanda Maria Freeman to pay the whole of said sum of eight thousand dollars and all income thereof then in their hands to Julia Ann B. Lewis, her daughter, named in the following clause of this will, and in case said Julia Ann B. Lewis shall not be living at the death of her mother, then to pay said sum and income, share and share alike, to the issue of said Julia Ann B. Lewis if she leave issue who survive said Amanda Maria Freeman; but if neither said Julia Ann B. Lewis nor any issue of hers shall survive said Amanda Maria Freeman, then said sum of eight thousand dollars and income shall be held to be part of the rest, residue, and remainder of my property, and go and be paid to my nephew James Henry Freeman, hereinafter named.”</p> <p>Julia Ann B. Lewis contended that the same proportion of the eight thousand dollars so given in trust as was paid upon the other legacies given by the will should be at once paid over to her, or, if not, that said proportion be invested and the income therefrom be paid to her until the death of Amanda Maria Freeman named in the will, when said proportion should be disposed of as directed by the will. James Henry Freeman, one of the executors, contended that the same proportion of the eight thousand dollars so given in trust should be invested and the income therefrom paid to him as residuary legatee as undevised property until the death of Amanda Maria Freeman, when said proportion should be paid over as directed by the will. All the legatees named in the will except Julia Ann B. Lewis and James Henry Freeman, contended that the same proportion of the eight thousand dollars so given in trust, should be invested, and the income therefrom paid to all the legatees except the widow, Amanda Maria Freeman, proportionally to their several legacies, until the legacies were paid in full, or until the death of Amanda Maria Freeman, when the whole of said proportion should be paid over as directed by the will. The will contained seven pecuniary legacies, five of which were to a nephew and nieces and the daughter of a niece, and James Henry Freeman, one of the executors, was named residuary legatee.</p> <p>The judge decreed that the executors should pay over to “ Julia Ann B. Lewis the same proportion of said eight thousand dollars ($8,000), given in said trust as aforesaid, as is paid upon the other legacies given by said will, together with whatever income may have accrued thereon in their hands, in full discharge of said trust, and said trust shall thereupon be discharged ”; and James H. Freeman appealed to this court.</p> <p>The parties in interest filed the following agreement:</p> <p>“ It is hereby stipulated and agreed that Amanda Maria Freeman, widow of the testator, waived the provisions made for her in the will, and has been paid her allowances made by the judge of probate of $2,200, and her one third of the estate, which was all personal property, $6,342.64, both amounting to $8,542.64 ; that the net cash of the estate of the testator to pay all the legacies of the will, including the trust fund, the disposition of the income of which during the life of the widow is in question, was $21,228.03 ; that the total amount of the legacies, including said trust fund, was $18,500; that, deducting the $8,542.64, the amount of the widow’s allowances and her one third of the estate, from net cash of the estate, $21,228.03, there is left but $12,685.39 with which to pay all the legacies, amounting to .$18,500 ; that this sum of $12,685.39 pays only a little more than sixty-eight and one half (exactly 68.569189189) per cent of all the legacies, amounting to $18,500, leaving nothing for the residuary legatee; that the estate is fully settled, and all the legatees paid the proportional part of their legacies which the estate is able to pay, except that the executors named as trustees are to properly dispose of the trust fund and the income thereof, which fund is now sixty-eight and one half and a fraction per cent of $8,000, or $5,485.57; that had the widow accepted the terms of the will there would have been the sum of $21,228.03 with which to pay all the legacies, amounting to $18,500, thus leaving to the residuary legatee the sum of $2,728.03.”</p> <p>Julia Ann B. Lewis, the appellee, was at the death of the testator his only child, and of course his sole next of kin, and only heir at law. She has a son living about fourteen years of age.</p> <p>On motion of the executors, Ray F. Lewis, a minor and only child of Julia Ann B. Lewis, was admitted as a party, and Samuel Williston, Esq. was appointed his guardian ad litem, and to represent the interests of persons not in being.</p> <p>Hearing before Knowlton, J.,’ who was of opinion that the decree of the Probate Court should be set aside, and sixty-eight and one half per cent of $8,000, viz. $5,485.57, be held by the executors until the death of Amanda Maria Freeman, and then paid over to Julia Ann B. Lewis if she were then living, and if she were not then living to her issue, if she should leave issue surviving Amanda Maria Freeman; but if neither she nor any . of her issue should survive Amanda Maria, then to James Henry Freeman; that the income of this fund should be divided among the legatees whose legacies were diminished by the widow's waiver in proportion to the amounts which they had respectively contributed to the share of the widow, and that the portion applicable to this legacy of $8,000 should be paid over to the same persons to whom the principal was paid; and if the whole amount contributed by the legatees should be made up by this distribution of income, the income accruing after that time should be paid to James H. Freeman, the residuary legatee.</p> <p>At the request of the parties, the justice reserved the case for the consideration of the full court. •"</p> <p>The case was argued at the bar- in March, 1894, and after-wards was submitted on the briefs to all the judges.</p>

<p>Appeal from Decree of Single Justice — Record — Deposit in Trust Company — Assignment — Ultra Vires.</p> <p>An appeal from the decree of a single justice brings up merely the record of the case, and parties cannot, at least without the sanction of the single justice, add to or diminish the record; and the question before the court, on such an appeal, is whether the decree is justified by the record.</p> <p>Without considering the question whether generally an endowment order has or has not the power to borrow money, or whether an action can be maintained against it upon its promissory note, it has the power to deposit its money in a trust company and to draw it out when needed, and, on the failure of the trust company, a claim against it accrues in favor of the order, which claim the order can assign by way of pledge.</p> <p>The by-laws of an endowment order provided that the officers should be a president, clerk, treasurer, secretary, superintendent, and three trustees; that they should constitute a supreme executive board, with the power of directors; that they should have in general “ all tile powers of the corporation except as limited by the vote of the stockholders ”; and that four should constitute a quorum. On July 25, 1891, E., the supreme treasurer and secretary, and G., the supreme president, having bought the shares of stock of the other incorporators, the other officers resigned except one, who with the two first named continued in office. Notices of these changes were sent to the certificate holders, and no question was made as to the validity of the transaction, or as to the authority of the treasurer and president to conduct the affairs of the order. At the time when E. and G. were elected president and secretary, they held the offices of superintendent and trustee, which offices they did not resign. There was nothing in the by-laws to show that a person could not hold two offices, and when the officers were first elected the same person was chosen both clerk and trustee. The order had a deposit in the A. Trust Company in the names of G., president, and E., treasurer, who, not being able to draw it as the company was in the hands of a receiver, borrowed, on September 25, 1891, a sum of money from the B. Trust Company and gave an assignment in writing of the claim of the order against the A. Trust Company as security therefor. The assignment purported to be the instrument of the order, to be executed by it “ by E., Supreme Treasurer," and to be assented to “ by G., Supreme President.” He.ld, that, without considering whether E. and G. could legally act as directors under the by-laws, so as to hold a directors’ meeting, it was clear that an invalid vote of the directors could be ratified by the order, and as E. and G. were then the only stockholders and passed the vote, and had ever since acquiesced in it, and the order had received the benefit of the money, the receiver of the order could not ask a court of equity to forbid the payment of the debt out of the fund in the hands of the receiver of the A. Trust Company.</p>

<p>Insolvency — Composition Proceedings — Discharge — Assent of Creditors — Statute.</p> <p>In determining under St. 1884, c. 236, as amended by St. 1885, c. 353, § 2, the number and value of the creditors of an insolvent debtor who have proved their claims in proceedings for composition, all are to be counted who have proved their claims up to the point of time when the judge proceeds to decide the question whether the assent filed is sufficient, and the other questions involved in determining whether the composition should be confirmed.</p>

<p>Tort, for personal injuries occasioned to the plaintiff from contact with a wire through which an alternating electric current was being transmitted.</p> <p>The first count of the declaration alleged that the defendant was a corporation engaged in the business of furnishing artificial light and power by means of electricity, and that for the purpose of transmission and distribution of the same it maintained lines of wire attached for their support to standards, posts, or poles erected upon buildings, that on March 10, 1890, such a wire was strung by the defendant over a building numbered 41 on Temple Place in the city of Boston, through which alternating electrical currents were being transmitted; that the currents were of such force as to be dangerous to human life and health if the wire should come in contact with the human body; and that the defendant negligently permitted the wire to be suspended in such a position and at such a distance from the roof that the plaintiff, while in the discharge of his duty as a lineman of the New England Telegraph and Telephone Company upon the roof of the building No. 41 Temple Place, and while in the exercise of due care, was injured by contact with it.</p> <p>The second and third counts were similar to the first, except that they alleged the accident to have occurred by reason of the defective insulation of the wire at the point where the plaintiff came in contact with it; and by the third count the plaintiff claimed damages for his injuries under the provisions of Pub. Sts. c. 109, § 12, and St. 1883, c. 221. Answer, a general denial.</p> <p>The defendant also demurred to the declaration, assigning as grounds therefor, in substance, that the declaration did not contain averments of fact sufficient to create a duty on the ¡Dart of the defendant towards the plaintiff, or to impose upon it any statutory liability.</p> <p>' The Superior Court overruled the demurrer; and the defendant appealed to this court.</p> <p>The case was then tried in the Superior Court, before Dewey, J., and the jury returned a verdict for the plaintiff. The defendant alleged exceptions, the nature of which appears in the opinion.</p>

<p>Tort, for alleged abuse of legal process. Writ dated April 8, 1889. At the trial in the Superior Court, before Dunbar, J„ the jury returned a verdict for the plaintiff, and the defendant alleged exceptions, which sufficiently appear in the opinion. Other counsel than those for the defendant made the attachment in the original ease.</p>

<p>Contract, to recover the value of a cargo of coal. Writ dated September 6, 1892.</p> <p>Trial in this court, without a jury, before Barker, J., who found for the defendants, and, at the request of the plaintiffs, reported the case for the consideration of the full court, in substance as follows.</p> <p>On June 29,1892, in a conversation by telephone, the plaintiffs and defendants made an oral bargain for the sale and purchase of a cargo of Barton coal, and on the same day the plaintiffs wrote the defendants a letter, in which, after recapitulating the conversation, they said, “ We also told you that we could enter your order for 750 tons shipped per Bee Line barge for immediate shipment . . . f. o. b. Weehawken. We have sent the order forward. You can cancel this to-morrow if you find you have not room for it, but we must ask you to telegraph us the first thing in the morning, so that we may know just where we stand. We would say that ‘ Barton ’ coal is second to no free burning coal mined, both as regards quality and preparation.”</p> <p>In response to thi£ letter the defendants telegraphed, “ You may ship the cargo to us at once.”</p> <p>On June 30, the plaintiffs wrote to the defendants, “ Your despatch (You to ship cargo to us at once) received. Order has been entered and accepted, and cargo will be shipped promptly.”</p> <p>The defendants, in the telephone conversation of June 29, in reply to a question of the plaintiffs as to how the cargo should be shipped, replied, “ By the Bee Line of Barges.”</p> <p>The cargo of coal, the parties understood, was not in Boston nor in New Bedford, nor then existing as a cargo, but was to be loaded and shipped from Weehawken, New Jersey, and was to be taken to New Bedford, the defendants paying the freight. By custom, duplicate or triplicate bills of lading were made out, one of which was for the master of the barge.</p> <p>On July 20, 1892, the coal was shipped on board a barge of the Bee Line Company at Weehawken, and consigned to the defendants at New Bedford, neither the plaintiffs nor the defendants having seen the coal at Weehawken. The master left the wharf before the bills of lading were complete, and directed his copy to be sent to the consignee for him. On July 22 the plaintiffs forwarded to the defendants an invoice, and the captain’s bill of lading, marked “Captain’s B/L,” which the judge found was the only one sent to the defendants. It contained the following indorsements: “ Arrived ready to discharge, Wednesday, July 27th, at 7 A. M.” “ Towed from Hart & Akin’s wharf and anchored in stream, Wednesday, August 10th, at 8 A. m.”</p> <p>The defendants received the invoice and bill of lading, and entered them upon their books, but held the bill of lading for the captain of the barge, and delivered it to him subsequently, in accordance with the custom of the port, when the barge was towed into the stream. The barge arrived in New Bedford on the evening of July 26. Early on the morning of the 27th the captain reported to the defendants, and offered to discharge the cargo. The hatches were removed, and the defendants’ laborers made preparations for discharging the vessel; but before beginning to discharge, the defendants went on board the barge, a little before seven o'clock, and, upon inspection of the cargo, stopped all proceedings for discharging the vessel, and telegraphed to the plaintiffs, “ Bluebird arrived, condition cargo unsatisfactory, we refuse the cargo.”</p> <p>The plaintiffs immediately replied by telegraph, “ Alden will be at your office to-day at one forty-five.”</p> <p>After telegraphing, at about eight o’clock of the same morning, the defendants, at the request of the master of the barge, and in accordance with the custom of the port, indorsed on the bill of lading, “ Arrived ready to discharge, Wednesday, July 27th, at 7 A. M.”; and on the same day the defendants and the plaintiffs had an interview at New Bedford. At this interview Hart and Alden went on board the barge and examined the cargo of coal. Hart thereupon told Alden that the cargo of coal was not such coal as they had bought, and that they would not take it, and would not under any circumstances receive it; that it was not merchantable coal, and that they would not have it.' Alden expressed himself that the coal was not of the quality it should have been, nor was it such quality of coal as he had sold him, and it did not correspond to the representation. Alden said he would try to sell the cargo to other parties, and thereupon called upon other persons and offered to sell the cargo. Alden afterwards saw the coal several times, inspected and examined the same, visited the coal dealers in Taunton, Attleborough, Brockton, Whitman, places on Cape Cod, and other places, and made various attempts to sell the said cargo, but did not succeed.</p> <p>On July 30, 1892, the defendants wrote to the plaintiffs: “ Since your Mr. Alden was here the writer has more carefully than before examined the cargo coal of barge Bluebird, and fully confirmed our first examination and report. The coal is poorer in quality and preparation than at first we believed it to be. We shall want the berth where the Bluebird lies early next week.”</p> <p>The barge lay at the defendants’ wharf until August 10, when it was towed into the stream, and at that time the captain demanded the bill of lading as his, and the defendants delivered it to him, after having indorsed upon it, in accordance with the custom of the port, “ Towed from Hart & Akin’s wharf, and anchored in stream, Wednesday, August 10th, at 8 A. m.”</p> <p>From July 27 to August 19 the plaintiffs were trying to sell the cargo, and made no claim on the defendants therefor. On August 19 they wrote to the defendants, “ If you positively refuse to take the cargo of coal shipped per barge Bluebird, July 20, we shall sell the same at once for your account, and shall charge you with all losses that may be made.”</p> <p>To this, on August 20, the defendants replied, “ In reply have to say that we refused to take the cargo of coal per barge Bluebird (invoice dated July 20, 1892), to your Mr. Alden, on big visit here July 27, 1892, this being the day the Bluebird arrived at our wharf.”</p> <p>The barge remained in the stream some weeks, until the owners libelled the coal for freight and demurrage in the admiralty court, and the coal was sold under these proceedings to satisfy their claim.</p> <p>The judge found, as matter of fact, that the coal was not merchantable coal, and ruled that the defendants had a right to reject it on its arrival at New Bedford.</p> <p>The plaintiffs requested the judge to rule, in case he should find that the coal was not merchantable, that the only remedy the defendants had was by recoupment or reduction in the price to the actual value of the coal. They further requested the judge to rule, that the defendants had no right to refuse to accept the cargo at New Bedford, or to there tender the same back to the plaintiffs; and that in order to revest the title in the plaintiffs it was necessary for the defendants to assign the bill of lading or tender the plaintiffs a release of all interest in or claim to the cargo. But he declined so to rule, and ruled that the defendants had the right to refuse to accept the cargo at New Bedford without tendering back the bill of lading and the invoice, or either of them, and without assigning or transferring to the plaintiffs any interest or legal title in the coal which was or might be in the defendants ; and the plaintiffs excepted.</p>

<p>Tort, for personal injuries resulting from contact with a wire charged with electricity. Writ dated January 9, 1892.</p> <p>At the trial in the Superior Court, before Aldrich, J., there was evidence tending to show that at the time of the accident, which happened on May 11, 1891, the plaintiff was employed as a lineman in the fire alarm department of the city of Boston, and that, acting under orders of the foreman of the department and in the course of his duties, he ascended an upright frame structure owned by the defendant erected upon the roof of the building numbered 114 Sudbury Street in Boston, owned by a third person, to the lower arms of which the defendant’s wires were attached, while to the upper arms were attached the wires of the fire department; that after he had completed his work and was descending from the structure, the pliers which he carried in his belt caught on a wire belonging to the defendant, and in reaching around to clear them he touched a charged wire and received a shock that threw him to the roof. The plaintiff’s hands were severely burned by the electricity, and his head was injured by the fall.</p> <p>One Flavel, a fellow workman of the plaintiff, testified that he examined the wires of the defendant immediately after the accident, and saw two bad joints that were bare, and were not taped or insulated, and that these joints were about twelve or fifteen inches from the structure to the arms of which the defendant’s wires were attached, and that the rest of the wire was insulated.</p> <p>The plaintiff offered in evidence a bill rendered by the defendant to the city of Boston, and paid by it, charging said city a proportionate part of repairing the roof upon an adjoining building, where there was another frame of the defendant, and from which the wires of the defendant and said city extended to and were fastened upon the defendant’s frame where the plaintiff was injured. The evidence was admitted, and the defendant excepted.</p> <p>One William Brophy, an electrical expert, testified for the defendant that alternating currents were used on its wires; that a person taking hold of a perfectly insulated wire would not receive sufficient electricity to injure him; that the defendant used as good insulation on its wires as could then be had in the market 5 and that the accident might have happened if the wires of the defendant had been in as good condition as skill, and knowledge could have made them.</p> <p>The undisputed evidence was that mere contact with pne electric light wire, even though bare and uninsulated, would cause no injury, unless other conditions supervened.</p> <p>At the conclusion of the evidence the defendant requested the judge to rule that the action could not be maintained. The judge ruled as requested, and directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract, upon a policy of insurance. Writ dated December 1,1891.

<p>Contract, for the recovery of rent due under a written lease. Writ dated October 18,1892.</p> <p>The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts, in substance as follows.</p> <p>The plaintiff, being on June 1,1891, the owner of a leasehold estate terminating December 31, 1893, caused a form of lease of the remainder of her term to be prepared, which, at the beginning thereof, recited that it was between the plaintiff, as lessor, and William A. Yates, of Vassalborough, Alexander L. Yates, of Waterville, both in the county of Kennebec and State of Maine, Sidney S. Shattuck, of Malden in the county of Middlesex, and George A. Drysdale, of Chelsea in the county of Suffolk, both in the Commonwealth of Massachusetts, doing business under the firm name and style of Yates Bros., Shat-tuck, & Co., as lessees. This form of lease in duplicate original was signed and sealed by the plaintiff, and by the defendants Shattuok and Drysdale. The other two defendants, Yates, being out of the country at the time of the execution of the indenture, did not sign it, although two spaces were left for their signatures with seals affixed. One copy of the indenture thus executed was delivered by the plaintiff for all the lessees to the two who had signed it, and they delivered the other copy to her, and the firm entered upon and occupied the premises. The firm paid rent for one month, and occupied for five months, and then gave notice that they should quit and deliver up the premises, which thereafter remained vacant from October 81, 1891, until April 1, 1892, when they were again rented by the plaintiff to another tenant.</p>

<p>Equity — Appeal — Statute — Entry Fee.</p> <p>The plaintiS filed a bill in equity in the Superior Court, to which the defendant demurred, and on November 9, 1893, the demurrer was sustained, and the bill dismissed with costs, and the plaintiff appealed; all of which appeared in the docket entries of the Superior Court. The plaintifi did not enter the appeal in the Supreme Judicial Court, whereupon, on April 2,1894, the defendant applied to the Superior Court for an execution for costs. The plaintiff thereupon filed his petition in the Supreme Judicial Court for leave to enter his appeal under Pub. Sts. c. 150, § 17. Held, that, although appeals in equity must, under Pub. Sts. c. 151, § 13, be taken within thirty days after the decree, there is no provision that such appeals must be entered in the Supreme Judicial Court within the thirty days ; that in the present case there must be some formal act of entry of the appeal on the docket of the Supreme Judicial Court to entitle the plaintiff to prosecute his appeal in that court; and that under the circumstances he should be permitted to enter his appeal on the docket of the Supreme Judicial Court.</p> <p>The entry of an appeal in the Supreme Judicial Court from a final decree entered in the Superior Court dismissing a suit in equity, is the entry of a suit within the meaning of St. 1891, c. 87, § 1, and a party may enter his appeal on procuring the proper papers and paying to the clerk an entry fee of three dollars, as required by the statute.</p>

<p>Contract. Trial in the Superior Court, before Hopkins, J., who ruled that the action could not be maintained, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>