Volume 162 — Massachusetts Reports

<p>Contract in Correspondence — Request for Rulings — Questions for Jury — Approval of Offer — General Objection to Rulings — Instructions on the Facts —Motion for New 'Trial — Affidavits.</p> <p>In an action of contract to recover damages for the refusal to receive and pay for one hundred thousand advertising cards, fifty thousand G. C. and fifty thousand C. B., subject to approval of a sketch and of the first thousand of each, and of which one thousand of each had been sent to the defendant, it appeared that there was much correspondence between the parties, and also conversation and correspondence between the defendant and an agent of the plaintiff. One of the defendant’s letters stated that the C. B. were right, but the delay in sending the G. C. was not right, and the defendant asked how long he must wait for the C. B. Held, that the judge properly left it to the jury to find upon the correspondence and conversation in connection with the other testimony in the case what the fact was in regard to the defendant having approved or disapproved of the cards, and that he properly refused to rule that there was “no approval of the G. C. one thousand in any of the letters, or of the O. B. one thousand.” Held, also, that an exception “ as to that portion of the charge as to the cards being sent for approval” was too general, and that the attention of the judge should have been called specifically to the particulars in which the defendant was aggrieved.</p> <p>If a judge instructs the jury fully, clearly, and fairly on the different matters involved in the trial and to which the testimony related, and dwells upon them no more than is necessary properly to discriminate and explain them for the benefit of the jury, it cannot be said that he instructed the jury on the facts.</p> <p>A new trial will not ordinarily be granted on the ground of newly discovered evi-, dence which goes only to impeach the credit of a witness at the trial; and where affidavits are offered for the purpose of showing a conspiracy between the plaintiff and a witness for him to testify falsely, the question of conspiracy is one of fact for the court.</p> <p>On a motion for a new trial, a paper alleged to be a copy of an affidavit of a witness at the trial, which does not purport to have been signed or sworn to by him, may properly be rejected, and it is within the discretion of the judge to reject an affidavit as filed too late, and to refuse to allow, a motion for a new trial to be amended so as to include the affidavit, and his discretion is not reviewable in this court, the circumstances not being fully disclosed.</p> <p>On a motion for a new trial, an interrogatory to a deponent, as to whether certain statements in an affidavit of a person taken in the case were true, is properly excluded, and requests resting on the interrogatory and the excluded affidavit are rightly refused.</p>

<p>Poor Debtor •— Charges of Fraud — Specif cation of Charges — Arrest of Judgment— Appeal — Authority of Assistant Cleric of Municipal Court of the City of Boston.</p> <p>The question of the authority of the assistant clerks of the Municipal Court of the city of Boston to issue executions, and to sign orders and certificates made by that court, cannot be raised for the first time at the argument in this court of an appeal from an order of the Superior Court'overruling a motion in arrest of judgment upon a conviction there of a charge of fraud filed in poor debtor proceedings in which that question has not been included.</p> <p>An appeal from an order of the Superior Court overruling a motion in arrest of judgment brings up as matter of law only the question of the correctness of the ruling as made upon the motion that was filed.</p> <p>Upon an application by a judgment debtor to take the oath for the relief of poor debtors he was arrested on a charge of fraud, filed by the creditor under Pub. Sts. c. 162, § 17, cl. 5, which charge was as follows: “ And now comes the creditor in the above entitled action and says that the action (upon which execution in said case was issued and the said debtor arrested) ‘ was founded on contract, that the debtor contracted the debt with an intention not to pay the same/ ” The charges were signed and sworn to as required by the statutes. Held, that the action to which the poor debtor proceedings related, and the charge referred, furnished the debtor with all the information that he required.</p> <p>Poor debtor proceedings are in their main features of a civil, and not of a criminal nature, though if a debtor is found guilty upon a charge of fraud he may be imprisoned.</p> <p>When a charge of fraud filed by a judgment creditor in poor debtor proceedings does not by reference to the action or otherwise furnish the particulars necessary to enable the debtor clearly to understand of what he is accused, the creditor may be required to file specifications, and if he fails so to do, the charge may be quashed if seasonable objection is made.</p>

<p>Two ACTIONS OE CONTRACT on poor debtors’ recognizances. The first one was entered into on March 2, 1893, by Porter A. Underwood as principal, and the defendants as sureties. The second one was entered into on the same day by Hosea W. Leach as principal, and the defendants as sureties. The pleadings and all the subsequent proceedings are alike in the two cases, the same questions are presented in both,' and they were argued together.</p> <p>The declaration in the first case alleged, in substance, the recovery of a judgment by the plaintiff in the Superior Court against Hosea W. Leach and Porter A. Underwood, upon which execution was duly issued and returned unsatisfied; that an alias execution was duly issued, and that one Ralph S. Bartlett, on behalf of the judgment creditor, appeared before the Third District Court of Eastern Middlesex for civil business, and made affidavit as required by statute, and that the clerk of the court affixed the affidavit to the execution, together with a certificate of the court authorizing the arrest x>f Hosea W. Leach and Porter A. Underwood; that on March 2, 1893, Porter A. Underwood was by virtue of the execution arrested and taken before a magistrate, where he recognized, with the defendants as sureties, for his appearance within thirty days to submit himself to an examination before some magistrate authorized to act in such cases, first giving the judgment creditor notice of the time and place of the examination, and also of his desire to take the oath for the relief of poor debtors; that the defendant Underwood did not appear and submit himself to an examination according to the terms of said recognizance, but wholly failed to fulfil the conditions thereof, whereby a right of action has accrued to the plaintiff to recover from the defendants the amount of the penal sum named in the recognizance.</p> <p>The second count alleged that the defendants, with one Porter A. Underwood, entered into a recognizance; that Underwood did not within thirty days from the time of his arrest, as mentioned in the recognizance, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by Pub. Sts. c. 162, and the acts amendatory thereof and supplementary thereto, nor did he in any other respect keep Or perform the . conditions of the recognizance; wherefore the defendants owe the plaintiff the amount of the recognizance.</p> <p>Annexed to the declaration was a copy of the execution, which directed the officer to levy upon “ the goods, chattels, or lands of the said judgment debtors,” and a copy of the affidavit of one Ralph S. Bartlett, who, on behalf of the judgment creditor, made oath that “ the debtors named in said execution have property not exempt from being taken on execution, which they do not intend to apply to the payment” of the judgment. The certificate of the court, which was also annexed to the declaration, stated that “ after due hearing the said court is satisfied there is reasonable cause to believe that the charges made in the foregoing affidavit are true; this also certifies that it appears from the evidence before the said court that said debtor has been duly notified to appear before the said court for examination, . . . and has neglected and refused so to appear.”</p> <p>The condition of the recognizance was “ that the said Porter A. Underwood, within thirty days from the time of his arrest, as above mentioned, will deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided ” in Pub. Sts. c. 162, and the acts amendatory thereof and supplementary thereto, “ and appear at the time fixed for his examination, and from time to time, until the same is concluded, and not depart without leave of the magistrate, making no default at any time fixed for bis examination, and abide the final order of the magistrate thereon.”</p> <p>The defendants demurred to the declaration, and assigned as grounds of the demurrer: 1. That it set forth no cause of action. 2. That it did not show that the magistrate purporting to take the recognizance had jurisdiction to take it. 3. That it did not show that any judgment was rendered against the principal in said recognizance by any court having jurisdiction in the premises, or that such other proceedings were taken as to authorize the taking of any recognizance.</p> <p>The Superior Court overruled the demurrer in both cases, and ordered judgment for the plaintiff for the amount of the recognizance ; and the defendants appealed to this court.</p>

<p>Trust — Will — Intention of Testator — Marriage Portion — Power.</p> <p>A testator, by his will, gave one hundred thousand dollars in trust, one half of the income thereof to be paid from time to time to his two granddaughters in such sums and at such times as the trustee should in his discretion consider for the best interest of the beneficiaries, and any balance of income that might from time to time remain was to be added to the principal. He then authorized the trustee, if his grandchildren or either of them should be married, at his discretion “to make and pay to them severally and'to each of them such sum or sums as he may consider reasonable and proper as an advance or marriage portion from the said principal sum or its accumulations.” If either of the granddaughters should decease leaving lawful issue, one half of the principal and its accumulations “ less any advance by way of marriage portion which may have been made to such granddaughter ” should go to such issue, and if either granddaughter should decease without leaving issue then the sum and its accumulations “ less any advance by way of marriage portion which she may have received ” was to be held in trust for the surviving grandchild; and if such surviving grandchild should die without leaving issue, the sum and its accumulations were to go to the testator’s heirs at law. One of the granddaughters married, and soon afterward the trustee paid to her the sum of five thousand dollars asan advance or portion under the power. Held, that the trustee was authorized to make such an advance by way of a marriage portion only ; that the testator did not intend that the whole of the principal sum should be so advanced, and that, by the payment of five thousand dollars to the granddaughter .who married, the power of the trustee to make an advance as to her by way of marriage portion was exhausted.</p>

<p>Two actions OF contract upon a policy of insurance, in the form prescribed by Pub. Sts. c. 119, § 139, insuring the plaintiff Thomas, in consideration of the payment by her to the defendant of the sum of ten dollars and eighty-three cents, against loss by fire for one year from July 14, 1890. The amounts and the property insured were as follows: “$3,000 on her frame dwelling-house situate on Glen Avenue near Coolidge Avenue, Watertown, Mass.; $1,000 on her frame private stable situate near the above dwelling.” On the face of the policy were the words: “Payable, in case of loss, to Joseph Bennett, mortgagee, as his interest may appear.”</p> <p>The first action was brought by the plaintiff Thomas, in which, by the first two counts of the declaration, she sought to recover the sum of $1,000 as the excess of the amount of insurance and loss above the amount due upon a mortgage of the premises, and by the third count to recover the entire amount of the insurance.</p> <p>The second action was brought by Joseph Bennett, the mortgagee of the premises insured, seeking to recover $3,000, which was the amount due on the mortgage.</p> <p>Trial in the Superior Court, before Fessenden, J., who allowed a bill of exceptions in substance as follows.</p> <p>The plaintiff Thomas, on June 5, 1890, bought at auction a parcel of land with a structure and stable thereon situated on Glen Avenue near Coolidge Avenue in Watertown. The structure thereon, which in the policy was described as a frame dwelling-house, had for years, and up to the time of its damage by fire on May 7,1890, shortly before its purchase by the plaintiff, been used as a small hotel, and was known as the Glen Hotel. It was a frame house about seventy-one feet long and forty feet wide, three stories in height, with a piazza in front, and containing about thirty "rooms.</p> <p>One Gleason testified that he was an auctioneer, and that he sold the property at auction to Mrs. Thomas, on June 5, 1890, and that the advertisement of the sale, which at that time he read in the hearing of Mrs. Thomas, described the premises as the “ Glen Hotel.” He further testified, that in 1890 he was an assessor of the town of Watertown, and was familiar with the property in question; that there were on the entrance floor of the house, as he thought, three parlors, a dining-room, reading-room, billiard-room, and bar-room, all of which were numbered; that on the second and third floors there were sleeping rooms, and also on the third floor a large hall in the rear.</p> <p>The plaintiff Thomas testified that the house was built in 1881; that it was always called the Glen Hotel, or the Glen, usually the Glen ; that when she bought it she knew it had been kept as a hotel; that she attended personally at the auction sale on June 5,1890, and that the auctioneer read a notice of what he was going to sell, which described the property as the “ Glen Hotel ” ; that on the same day on which she bought the property she hired one Egan to take care of the place, who remained there about three months, and slept in one of the rooms; that afterward she let a Mrs. Thornell go into the house, and have the use of it for its care, until it and the stable connected with it were destroyed by fire, on May 30, 1891; that she was going to sell it as soon as she got a chance, and was trying to get a family to let it to so as to get a little out of it; and that in November, 1890, she made repairs on that part of the building which had been burned previously, on May 7, 1890.</p> <p>It was admitted tliat there was no written application for insurance, and the plaintiff Thomas offered to show that, at the time the policy was issued, she, the plaintiff Bennett, and the defendant’s agent were ■ together at the plaintiff Bennett’s office in Boston, and that then the premises were described to the agent, who made out the policy in his own handwriting, and that the description of the premises therein was his ; that he was given a general description of the buildings, and was told that the property was formerly known as the Glen Hotel; and that he knew that at the time of the application it was occupied by some one as a care-taker. The plaintiff Bennett testified that he held a mortgage on the property for $3,000, dated July 14,1890, which was in force when the buildings were burned in May, 1891.</p> <p>The defendant introduced the testimony of experts upon insurance rates, who testified substantially that there was an established custom among fire underwriters in Massachusetts to charge a fixed rate of premium upon detached frame dwelling-houses, and a fixed rate on detached frame hotels, and that the rate on such frame dwelling-houses is from twenty-five cents to thirty-five cents a year on a hundred dollars, and is the lowest rate on any class of frame structures; that the rate upon detached frame hotels is six or eight times as much; that a building built for a hotel, containing parlors and dining-room, bar-room, billiard-room, hall, and other rooms for general purposes, and some ten or twelve bedrooms, which building had been used for a hotel until shortly before the date of the policy and had not been remodelled, would belong to the hotel class; and that if such building had been partly destroyed by fire, and it remained unrepaired up to the issuing of the policy thereafter, and was not occupied except as a watchman stayed in the building to take care of it, the premium would be materially increased, and that the working of carpenters in such a building would further increase the premium.</p> <p>At the conclusion of the evidence, the judge ruled that the actions could not be maintained, and directed a verdict for the defendant in both actions; and the plaintiffs alleged exceptions.</p>

<p>Tort, for breaking and entering the plaintiff’s close, and for an assault. Writ dated July 8, 1891.</p> <p>The declaration alleges that Frank B. Trull, J. Soule, and William A. Robes, at the instigation and request of the defendants, by whom they were employed, forcibly broke and entered the dwelling-house of the plaintiff in Somerville, and violently assaulted the plaintiff by striking him a violent blow on the head with a dangerous weapon, and also assaulted the plaintiff’s wife and daughter. Answer, a general denial, and an amended answer alleging, if the defendants, by their agents or servants, “ did assault in the manner alleged by the plaintiff, that said assault was justified by the acts of the plaintiff.”</p> <p>At the trial in the Superior Court, before Hammond, J., tbe jury returned a verdict for the plaintiff; and the defendants alleged exceptions, the material parts of which appear in the opinion.</p>

<p>Writ oe entry, dated December 1, 1892, to recover possession of a tract of land in Boston. Plea, nul disseisin.</p> <p>The demandants are the heirs of Joseph H. Eayrs, who died on March 6, 1865, seised of the demanded premises, and leaving a will, dated December 21, 1857, which was duly admitted to probate, and contained the following residuary clause:</p> <p>“ All the residue and remainder of my property and estate, real and personal, of which I may die seised or possessed, or to which at the time of my decease I may be in any way entitled, I give, devise, or bequeath to my wife, Emily P. Eayrs, for her support, and for the support and education of our only child, Joseph Hearsey Eayrs, 2d. At her decease, all that shall then remain of my said property I give, devise, and bequeath to my said son Joseph, to be held in trust till he shall arrive at the age of twenty-one years, to him, his heirs, executors, administrators, or assigns forever. My said wife, Emily P. Eayrs, is hereby authorized to sell and dispose of any real or personal estate which I may leave, either at public or private sale, as she may deem best.”</p> <p>The son, Joseph Hearsey Eayrs, 2d, died on April 4, 1860, aged four years, and the widow, Emily P. Eayrs, died on March 19, 1892, not having disposed of the demanded premises.</p> <p>At the trial in the Superior Court, without a jury, before Hammond, J., the demandants contended that under the will the widow, Emily P. Eayrs, took a life estate only, and the tenants, who were her devisees, contended that she took an estate in fee.</p> <p>The judge ruled that the widow did not take a fee, and found for the demandants, and, at the request of the tenants, reported the case for the determination of this court. If the ruling was wrong, the' finding was to be set aside ; otherwise, judgment was to be entered thereon.</p>

Tort, for personal injuries sustained by the plaintiff by reason of the alleged unsafe condition of an elevator in a building owned by the defendant. Writ dated March 17,1892.

Contract, upon a poor debtor’s recognizance, entered into on March 2, 1893, by the defendant Leach as principal, and the other defendants as sureties.

<p>Sale of Land — Principal and Agent — Liability of Broker to account for entire Proceeds of Sale — Evidence.</p> <p>By separate written agreements, both executed on the same day, A. and B. each bound himself to convey his land to the order of C. for a consideration named, and to pay him a brokerage commission for effecting a sale of it. Subsequently A., by the direction of C., conveyed his land to B., and gave to C. an order to receive the consideration. C. collected from B. a larger sum than the consideration named, receipted for it, and, after paying over to A. the price named by him, retained for himself the excess which lie had received from B. A. afterward paid C. his brokerage commission. 11 eld, in an action by A. against C. to recover the excess so retained by him, that, if C. was acting as the agent or broker of A., good faith required that he should account to him for all that he received from the sale of his property, and that there was evidence proper to be considered on which it would have been competent for the jury to find that the transaction was in substance one where A. and B. were engaged as principals and 0. was acting as their agent or broker, and whether C. was so acting was a question of fact which should have been submitted to the jury.</p> <p>Evidence of the circumstances under which a written agreement for a sale of land was entered into, and the acts and declarations of the parties under it, are admissible for the purpose of assisting in interpreting and applying the agreement, but not for the purpose of contradicting or varying its terms.</p> <p>The plaintiff agreed in writing to convey land to the order of the defendant for a price named, and to pay him a brokerage commission for effecting a sale of it. The defendant sold the land for a sum larger than the price named by the plaintiff, and retained the difference himself, and charged the plaintiff his commission. Held, in an action to recover the difference, that the plaintiff should have been permitted to show that his property had been and was in the hands of the defendant for sale as a broker on commission before and at the time of signing the agreement, as well as what representations were made by the defendant as to his object in taking the agreement, and its purposes so far as he was concerned, as, if they were of the nature which the plaintiff offered to show, they had a tendency to show that the agreement was procured by fraud and misrepresentation on the part of the defendant.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by a defect in the highway of the defendant town. Answer: 1. A general denial. 2. That no notice was given by the plaintiff of the time, place, and cause of the injury, as required by law. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that in the evening of June 6, 1891, the plaintiff, while wallring on the highway, fell over the root of a tree in the westerly sidewalk of Hyde Park Avenue, at a point not far from an electric light nearly opposite Dell Avenue, and not far from the junction of Central Park Avenue and Hyde Park Avenue. The notice given by the plaintiff, dated June 12,1891, and addressed to the selectmen of Hyde Park, stated that she “ fell over the root of a tree on the sidewalk of Central Park Avenue.” It was conceded at the trial that the plaintiff, in erroneously stating the place of the accident, had no intention to mislead the defendant town. For the purpose of showing that the town was not in fact misled thereby, the plaintiff called as a witness John B. Neale, an inhabitant and taxpayer of the town, who testified that he and his wife were in company with the plaintiff at the time when she fell; that within thirty days after the plaintiff’s injury he called on the chairman of the defendant’s board of selectmen, showed him the root which he had pulled out of the sidewalk at the place where the plaintiff fell, and told him exactly the location of it; that within the same period he told the chief of police of the defendant town where and how the accident happened, and he also went with the superintendent of streets to the place of the accident, and called his attention to the remaining roots, some of which the superintendent then took out, and said he would have the others taken out. This evidence was admitted, subject to the defendant’s objection and exception.</p> <p>The plaintiff testified that she was “ walking along quietly,” and in another place that she was “ walking along comfortably,” with Mr. and Mrs. Neale, when she tripped over something and fell; that there was an electric light there somewhere, but she could not locate it, and when asked why she did not see the thing that she fell over if there was an electric light there, she replied, “ I was talking with either Mr. or Mrs. Neale, and my face was turned away for one thing. I might not have looked at it. Another thing, I never supposed for a moment there was anything out of the way there.” On cross-examination, she testified, “ Had I supposed it was a dangerous place I could have seen perfectly well by looking, but supposing it was all right I did not look.” She also testified that she had previously avoided the sidewalk, and had walked in the street because of the loose stones and debris on the sidewalk, and the fear she had of falling ; but that a short time before she fell her attention had been called to the sidewalk as being in a proper condition to be walked over.</p> <p>There was evidence from which the jury might find that the way was defective at the point where the accident occurred, and that the defect had existed for such a length of time that the jury might infer that the defendant had notice thereof, and that by the exercise of reasonable care on its part the defect might have been remedied.</p> <p>At the conclusion of the plaintiff’s case the defendant requested the judge to rule:</p> <p>I. That upon all the evidence the action could not be maintained. 2. That there was no sufficient notice of the time, place, and cause of the injury given to the defendant town. 3. There was no evidence that the witness Neale had any authority or direction from the plaintiff to notify the defendant town or its officers of the time, place, and cause of the plaintiff’s injuries. 4. -A mere casual conversation by the witness-Neale with any of the town officers in regard to the place of the injury was to be disregarded.</p> <p>The judge instructed the jury that the written notice was not sufficient to entitle the plaintiff to maintain this action, unless she proved that the defendant was not in fact misled by the inaccuracy in stating the place where she was injured, and declined to give any of the other instructions as requested, but instructed the jury that, if they believed the testimony of Neale, they would be authorized to find that the defendant was not in fact misled by the inaccuracy in the written notice.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Exoneration of Specific Devise from Mortgage — Effect of Residuary Devise to Executor with Power to Sell — Rents of Realty devised to Executoi-Account — Estoppel — Mistake.</p> <p>Real estate specifically devised is, in the absence of a contrary intention on the part of the testator, exonerated from a mortgage placed upon it by him, though the personal estate may be insufficient for the payment of general legacies.</p> <p>A residuary devise to the executor, with power to sell the real or personal estate, does not first vest in him the mere power to sell to create a fund for the payment of debts and legacies, with the right to have what may remain, but vests in him at once the title to the residue, with authority to sell any or all of the estate, and apply it to the payment of debts and legacies, and until a sale the rents and profits belong to him as residuary devisee.</p> <p>An executor who, in his first account, erroneously charges himself with the rents of real estate to which he was himself entitled as residuary devisee, is not estopped from showing the mistake, and having it corrected.</p>

<p>Recording Lease during Arguments at Trial — Statute — Right of Lessee or Reversioner to bring Action—Damages for Destruction of Buildings by Fire from Locomotive Engines — Provisions of Written Lease as affecting Third Party — Evidence — Expert.</p> <p>At the trial of an action for damages caused by the destruction of buildings by fire communicated by the locomotive engines of the defendant railroad, it appeared that the plaintiff was lessee under a lease for ten years, which when admitted in evidence had not been recorded, but was recorded during the arguments. At the time of the fire there remained of the term nearly eighteen months, and the defendant contended that the lease was not evidence of any title in the plaintiff as against the defendant, because, being unrecorded, it was void under Pub. Sts. c. 120, § 4. The plaintiffs were in actual possession under the lease at the time of the fire. Held, that if the lease was recorded before the trial was finished, or perhaps even before judgment was rendered, and there was no intervening title of record, the defendant was protected, and, if the rule of evidence relative to the recording of deeds was applicable, it was satisfied by recording the lease during the arguments.</p> <p>At the trial of an action for damages caused by the destruction of buildings by fire communicated by the locomotive engines of the - defendant railroad, the question was raised whether the plaintiff, who was a lessee of the land and buildings thereon, was entitled to recover the full value of the buildings burnt, or whether his damages were to be confined to the injury to his possession during the unexpired term of the lease, leaving to the lessor a right of action to recover for the injury to the reversion. By the provisions of the lease it was the duty of the lessee to keep the buildings insured to an amount sufficient to repair or replace them in case of destruction or damage by fire, and to rebuild them, if burnt, unless excused by the lessor. Held, that the lessee was entitled to recover full damages, as if he were the bailee of the buildings, as personal property, and that his obligation to rebuild the buildings and his right to remove them and erect other buildings gave him an interest in the buildings apart from his interest in the land sufficient to enable him to recover such damages. Held, also, that the lessee could not be asked by the defendant if he had replaced the buildings in compliance with the lease, if the lessor had waived the lessee’s obligation to rebuild, and if the lessor had taken any of the insurance on the buildings, as the liability of the defendant was to be determined on the facts as they existed at the time of the fire.</p> <p>At the trial of an action for damages caused by the destruction of ice-houses by fire communicated by the locomotive engines of the defendant railroad, the plaintiff, who is a lessee of the premises under a lease requiring him to keep the houses insured to an amount sufficient to repair or replace them in case of destruction or damage by fire, cannot be asked by the defendant the valuation of the property by the assessors for the purposes of taxation to prove ttie damages, or how many tons of ice lie had insured in the houses when burned.</p> <p>At the trial of an action for damages caused by the destruction of ice-houses by fire communicated by the locomotive engines of the defendant railroad, the defendant attempted to show by two witnesses that the ice was polluted by the sewage of a neighboring city, and therefore was unmerchantable and of little value. Held, that it was sufficient to say that, so far as the testimony was excluded against the objection and exception of the defendant, it did not appear that the witnesses had such actual knowledge of the condition of the pond at the time when the ice was taken from it as to make the testimony necessarily competent, and as the testimony was somewhat in the nature of an opinion or inference from facts observed at times somewhat remote from the time in question, it was in the discretion of the presiding justice to exclude it on the ground of remoteness.</p>

<p>Tort, to recover damages for the death of the plaintiff’s intestate Cornelius J. Doyle.</p> <p>The declaration, which was in two counts, alleged that the action was brought by the plaintiff for his own benefit, as the father and next of kin of the intestate. The answer was a general denial, and that “the deceased was riding upon a train of the defendant under an express contract and agreement, by which he released the defendant from all liability on account of the alleged injuries.”</p> <p>At the trial in the Superior Court, without a jury, before Dunbar, J., there was evidence tending to show that Cornelius J. Doyle had been for about a year and a half employed as a clerk in the freight department of the defendant at Boston; that he was not employed for any stated period, but was at liberty to quit the employment at any time, and the defendant might discharge him at any time, without breach of contract; that his wages were fixed at a daily rate ; that during his employment and at the time of the injury he lived with his father in Waltham, and usually went each morning and evening to and from Boston on the defendant’s trains; that his work for the defendant closed each day at six o’clock and began in the morning at seven, and he performed no services for the defendant while riding on its trains, or outside the freight office; that after six o’clock on Saturday afternoons he had nothing more to do for the defendant until Monday morning, and the time in the interval was his ; that there was a well known and uniform custom of the defendant, known to Cornelius J. Doyle, to furnish to its employees who worked at Boston and lived at some other place on the line of the road a ticket in the form hereinafter set forth, without other compensation than that the person receiving the ticket should perform services for the defendant in accordance with the terms of his employment; that the rate of wages paid to the defendant’s employees for a given class of work was the same, whether the employee resided at the place where he worked or at some other place on the line, and was furnished one of the aforesaid tickets'; that the deceased was given one of these tickets when he began work, and during the whole time thereafter he had been furnished monthly with tickets of this character, and had used them for transportation between Boston and Waltham ; that each ticket had sixty-two numbers to be punched, and was good for sixty-two rides during the month for which it was issued; and that it was conceded that a person holding one of these tickets might ride upon it whether he was going to and from his work or not, and whether or not he was at the time travelling in the service of the company, or solely for his own private interests or pleasure.</p> <p>The face of this ticket read as follows:</p> <p>“No. 464 Fitchburg Railroad. Employee’s Monthly Ticket. (Not Transferable.) Pass C. J. Doyle, S. F. D., between Boston and Waltham, during the month of September, 1892, unless otherwise ordered. Not good unless countersigned by L. W. Bartlett. Sept. 1, 1892. John Adams, Gen’l Supt. Countersignature, L. W. Bartlett.”</p> <p>On the back of the ticket were the following conditions:</p> <p>“ The person accepting this Free Ticket thereby and in consideration thereof assumes all risk of accidents, and expressly agrees that the company is not a common carrier in respect to him, and shall not be liable under any circumstances, whether of negligence of its agents or otherwise, for injury to the person, or for loss or injury to the property, of the passenger using this ticket.”</p> <p>On Saturday, September 10, 1892, the deceased left his work at the usual hour, intending to return as usual on the following Monday, and went on the defendant’s train home to Waltham, arriving there before seven o’clock. In the evening, after supper, he went to Boston over the defendant’s road solely on a business or pleasure trip of his own, in no way connected with the defendant. At a little before a quarter past ten the same evening he entered a car of the defendant which left Boston at that hour, and took a seat, to be carried to Waltham. While so returning from this trip to Boston and riding on said car by virtue of said ticket, which was punched by the conductor, and while in the exercise of due care, another train of the defendant collided with the car in which the deceased was riding, and he was killed. The collision was caused by the gross negligence of an engineer in the employ of the defendant.</p> <p>The defendant asked the judge to rule that upon this evidence the plaintiff could not recover. The judge refused so to rule, and ruled that there was sufficient evidence upon which to base a finding for the plaintiff, and made such finding accordingly; and the defendant alleged exceptions.</p>

<p>Bill in EQUITY, filed January, 10, 1893, by the mortgagor of certain land in Chelsea, against Mary E. Barnard, Caroline E. Patch, Henry H. Letteney, and Eben Hutchinson, Junior, to redeem the land from a mortgage made to Eben Hutchinson, Senior, on October 24, 1887, to secure a note of that date for $2,200, payable to the order of the mortgagee in four years, with interest semiannually.</p> <p>Hearing in the Superior Court, before Bond, J., who found the facts, and reported the case for the determination of this court. The material facts appear in the opinion.</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>Certiorari— Constitutional Law — Law of Ways of Necessity in its Application to Railroads.</p> <p>The St. 1892, c. 171, entitled “ An Act to require railroad companies to maintain crossings to give access to lands cut off by railroads,” is constitutional, and applies where one conveys a part of his land to a railroad in such form as to deprive himself of access to the remainder.</p> <p>The law that, if one conveys a part of his land in such form as to deprive himself of access to the remainder of it unless he goes across the land sold, he has a way of necessity over the granted portion, applies to the conveyance of land for a railroad by a warranty deed which says nothing about a right of way across the land conveyed and the use to be made of it, although the description shows that a railroad is located there, and a- clause in the deed releasing damages to the grantor’s estate “by reason of the location or construction” of the railroad cannot be construed as a release of the way of necessity to his land beyond; and the fact that the railroad provided and maintained a farm crossing for him for many years indicates that the stipulation was not understood to apply to his right of way.</p>

<p>Bill in equity, filed March 17, 1893, to restrain the defendant from making use of an addition made by the plaintiffs to a certain party wall running from Boylston Street to Providence Street in Boston, between adjoining parcels of land belonging respectively to the plaintiffs and the defendant.</p> <p>Hearing before Lathrop, J., at whose suggestion a statement of the facts was agreed upon by the parties, which subsequently, on account of the illness of the presiding justice, was presented to Knowlton, J., who reported the case for the consideration of this court. If the bill could be maintained, the case was to stand for further hearing, or such other order or decree was to be made as equity required. If it could not be maintained, it was to be dismissed, unless the plaintiffs desired to amend it by changing it into an action at law, in which case they should have leave so to do, unless this court should be of opinion that an action at law could not be maintained. The material facts appear in the opinion.</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>Statute— Transfer of Cases and Form of Order in the Supreme Judicial Court — Indictment for Murder by stabbing with a Knife ■—• Description of Wound — Allegations conformable to Declaration of Rights — Allegation sufficiently stating the Time of Death — Fhotographs as Evidence.</p> <p>The St. 1892, e. 127, entitled “ An Act authorizing the transfer of cases in the Supreme Judicial Court,” was intended to give to the full court, upon application of a party, full power to determine the place of hearing questions of law in any case, including capital cases, and it does not take away the jurisdiction of the justices before whom the trial is had to make such prior orders as are authorized by Pub. Sts. c. 153, § 16, or by St. 1891, c. 379.</p> <p>The St. 1892, c. 127, entitled “An Act authorizing the transfer of cases in the Supreme Judicial Court,” gives jurisdiction as soon as questions have been put in form for hearing, so that nothing remains to be done but to make the formal entry of them in the full court which Pub. Sts. c. 153, § 15, directs the clerk to make “ as soon as may be ”; and there is no good reason why they should first be entered in the county where the trial is had, and then transferred to Suffolk or some other county.</p> <p>An order of this court recited that whereas on a certain date application was made to the Supreme Judicial Court, sitting as a full court in the county of Suffolk for the Commonwealth, by the Attorney General, praying that the exceptions in a capital case be assigned and heard by the full court sitting at Boston for the Commonwealth, upon which application the parties were heard by the full court; it was ordered that the questions of law arising upon the exceptions be assigned and heard by the full court sitting at Boston for the Commonwealth on a specified day and at a certain hour. Held, that the form of the order was sufficient, and that the words “ assigned and heard by the full court sitting in Boston ” are equivalent to “ entered and heard by the full court ” sitting in Boston.</p> <p>An indictment for murder by stabbing with a knife need not allege in what way or in which hand the knife was held.</p> <p>An indictment for murder, which avers that the death ensued from “ one mortal wound” given on the head of the deceased by a knife, is sufficient without a more specific description of the wound.</p> <p>The provisions of Article XII. of the Declaration of Rights, which secure to the accused person the right to have his crime or offence “fully and plainly, substantially and formally, described to him,” only require such particularity of allegation as may be of service to him in enabling him to understand the charge and to prepare his defence.</p> <p>In an indictment for the murder of M. R., the day of the assault was given, the assault resulting in a mortal wound was described, and then followed the words “ of which said mortal wound the said M. R. then and there died.” Held, that the words “ then and there ” related to the time previously stated in the indictment as the time of the assault, and that they sufficiently stated the time of the death.</p> <p>On the trial of an indictment for murder, photographs taken only three hours after the homicide, showing the condition of the premises at the time of the discovery of the crime, and verified to the satisfaction of the court, are admissible in evidence to assist the jury in understanding the situation of affairs at the time and place of the commission of the homicide; and the fact that the defendant did not deny the killing does not affect the competency of the evidence.</p>

<p>Beneficiary Association — Creditoi--Dependent — Statute — Disposition of the Proceeds of the Certificate.</p> <p>Under the Pub. Sts. c. 115, § 8, (as amended by the St. of 1882, o. 195, § 2,) in force when a certificate was issued by a beneficiary association, a member could not designate one who was merely a creditor as a beneficiary; and legislation passed since the issuing of the certificate up to July 23, 1893, the date of the decease of the assured, has not so changed the status of the beneficiary as to entitle him to recover.</p> <p>The fact that the designation of the beneficiary in a certificate issued by a beneficiary association was invalid, does not render the whole contract void, and on the death of the assured his executor is entitled to the money in trust for the benefit of those who at the time the contract was made were entitled to be named as beneficiaries.</p>

<p>Bill in equity, filed October 12, 1892, to remove a cloud upon the plaintiff’s title to certain premises on Avery Street and Haymarket Place in Boston. Hearing before Morton, J., who directed a decree to be entered for the plaintiff, and, at the defendant’s request, reported the case for the consideration of the full court; such decree to be entered as law and justice might require. The facts appear in the opinion.</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>Easement — Prescription — Drain — User.— Registry Laws — Construction of Report.</p> <p>The acquisition of a prescriptive right to use a wooden drain across neighboring land is not prevented by the laying of an earthen drain inside the wooden one.</p> <p>The fact that a drain is laid at the joint expense of the owners of the dominant and servient estates does not import, as matter of law, that the use thereafter is permissive.</p> <p>The acquisition of a prescriptive right to use a drain for the discharge of sink water is not prevented by the use of it also for the discharge of water-closets during a part of the twenty years. On the other hand, if the prescriptive right is only to use the drain, by gaining the former right the dominant owner does not necessarily gain the latter.</p> <p>The registry laws do not extinguish easements by prescription in favor of purchasers without notice.</p> <p>When the plaintiff alone appeals from a decree granting him anjnjunction, whether the defendant can contest the right on which the injunction is founded, qumre.</p>

<p>Tax on Collateral Legacies and Successions — Constitutional Law — Tenant for Life and Remainderman — Annuity — Exemption of Charitable Societies, etc.</p> <p>The St. of 1891, c. 425, entitled “ An Act imposing a tax on collateral legacies and successions,” is constitutional, as the privilege of transmitting and receiving by will or descent property on the death of the owner is a “commodity” within the meaning of this word in the Constitution of Massachusetts, c. 1, § 1, art. 4, and an excise may be laid upon it; and the objections that the tax is unequal because not imposed upon all estates and upon all heirs, devisees, legatees, and distributees, and is unreasonable on account of the exemption in the proviso of the first section, “that no estate shall be subject to the provisions of this act unless the value of the same, after the payment of all debts, shall exceed the sum of ten thousand dollars,” are not well founded. Latbrop, J. dissenting.</p> <p>The provisions of § 2 of St. 1891, c. 425, entitled “ An Act imposing a tax on collateral legacies and successions,” to the effect that where property is bequeathed to a direct heir for life or for a term of years, and the remainder to a collateral heir or to a stranger to the blood, the value of the prior estate shall be appraised and deducted from the appraised value of the property, and the remainder shall be subject to a specified tax, contemplate that the tax shall be computed and deducted from the principal sum and paid over to the Treasurer of the Commonwealth, under § 4, “ at the expiration of two years from the date ” of the executor’s bond, or when the legacy is paid, if paid within the two years; and the amount of the loss of the income of the tenant for life or for years caused by the diminution of the principal of the fund is not to be made up to him out of the principal or out of the general funds of the estate.</p> <p>The St. 1891, c. 425, imposing a tax on collateral legacies and successions, contemplates in the case of an annuity that the tax is to be paid out of the annuity as soon as the annuity becomes payable, and at the time when payments on account of it are made.</p> <p>The exemption under St. 1891, c. 425, § 1, of “charitable, educational, or religious societies or institutions, the property of which is exempt by law from taxation,” from the payment of the tax imposed by that statute, is confined to societies the property of which is exempt from taxation by the laws of this Commonwealth.</p>

Tort, for slander and for an assault and battery. No question arose under the count for assault and battery.

<p>Tort, by the executrix of the will of William L. Hubbard,, for causing his death at a crossing at grade in Richmond by the railroad tracks of the defendant. At the trial in the Superior Court, before Richardson, J., the defendant at the close of the evidence requested the judge to direct a verdict for the defendant. The judge declined so to do, and submitted the case to the jury upon the issue whether or not the defendant was guilty of negligence in not having at the crossing a flagman, gate, or some other method to warn travellers of danger, and upon the issue whether or not the deceased was in the exercise of due care.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The material facts appear in the opinion. The case was formerly reported 159 Mass. 320.</p>

<p>National Bank — Principal and Agent — Evidence.</p> <p>If the cashier of a national bank, assuming to act in its behalf, receives at the bank money left with him as and for a deposit in the bank, the fact that, at the time of receiving it, he agrees that the bank shall at some time in the future invest the money in stocks and bonds for the depositor, and meanwhile shall allow him interest upon it, does not have the effect to exonerate the bank from its liability to refund the money without interest to the depositor on demand, no investment thereof having been made, even if such agreement by the cashier was invalid, and the money did not actually come to the use of the bank, but was misappropriated by the cashier.</p> <p>At the trial of an action against a national bank for money deposited at the bank with its cashier, upon the agreement that the money should be invested by the bank in stocks and bonds, no exception lies to an instruction to the jury that, “if the directors ” of the bank, “through inattention or otherwise, suffered the cashier to pursue and practise a certain line of conduct for a considerable period of time without objection, the bank will be bound by his acts within that line of conduct.”</p> <p>In an action against a national bank for money deposited at the bank with its cashier, it appeared that the money was sent by the plaintiff to the bank at different times, with slips or tickets in substance like ordinary slips or tickets accompanying deposits; that the money was withdrawn on orders addressed to the bank, resembling ordinary checks; and that the sums so paid in and so withdrawn were entered by the cashier on an envelope, and the entry in one instance was verified by his initials, thus: “E. S. F., Cas.” Held, that the envelope was admissible in evidence.</p> <p>In an action against a national bank for money deposited at the bank with its cashier, upon the agreement that the money should be invested by the bank in stocks and bonds, if the issue is whether the plaintiff dealt with the cashier as an individual or as the representative of the bank, evidence of former transactions similar in kind are competent.</p> <p>Although a witness, whose deposition is taken out of the Commonwealth, annexes copies instead of the originals of papers to the deposition, the court in its discretion may allow them to be read.</p> <p>In an action against a national bank for money deposited at the bank with its cashier, upon the agreement that the money should be invested by the bank in stocks and bonds, the issue being whether the plaintiff dealt with the cashier as an individual or as the representative of the bank, a broker testified that his firm bought certain shares of stock for the defendant bank, taking the certificate in the plaintiff’s name, and that his firm had had another account with the bank for several years. Held, that a receipt for shares of said stock in the plaintiff’s name from the witness’s firm signed by the defendant’s cashier as such, previously to the transaction in suit, was admissible in evidence.</p> <p>In an action against a national bank for money deposited at the bank with its cashier, upon the agreement that the money should be invested by the bank in stocks and bonds, the issue being whether the plaintiff dealt with the cashier as an individual or as the representative of the bank, a witness, who was the bookkeeper of the bank, testified that the bank had accounts with brokers in two cities named who bought and sold stocks for its customers if ordered .through the bank; and that these brokers, on occasions prior to the transaction in suit, had bought for the bank certain shares of stock for which certificates were by its direction, as shown by other evidence, taken in the plaintiff’s name. Held, that the testimony was competent.</p> <p>Evidence to show that a bank did not enter on its books a person’s name as a depositor is incompetent, in an action by such person against the bank for money deposited at the bank with its cashier, upon the issue whether the plaintiff dealt with the cashier as an individual or as the representative of the bank, the cashier agreeing that the money should be invested by the bank in stocks and bonds.</p> <p>An exception cannot be sustained to the exclusion of evidence which is contended to have been competent as tending to show a fact which has been found by the jury in favor of the excepting party.</p> <p>In an action against a national bank for money deposited at the bank with its cashier, upon the agreement that the money should be invested by the bank in stocks and bonds, the issue being whether the plaintiff dealt with the cashier as an individual or as the representative of the bank, the question to a witness who had been a bookkeeper for the bank, “ whether or not to his knowledge the plaintiff had any account with the bank” in certain years named, is rightly excluded, there being no suggestion that the witness knew anything about the transactions with the cashier.</p>

<p>Devise and Legacy — Life Estate with Power of Disposition—Objection to ' Auditor’s Report.</p> <p>A devise and bequest to the testator’s wife of “ all my personal and real estate, to have and to hold for her use and her benefit during her natural life, with the right to dispose of the same by gift or will at her decease,” and “ should she decease without will or testament, or any actual conveyance to others of the right of said estate at her decease, then the real estate or its value shall be divided as follows, namely,” gives the widow merely a life estate with a power of disposition.</p> <p>An objection to the report of an auditor, that.the evidence upon which his conclusion is based was inadmissible, should be taken by a motion to recommit the report to the auditor, and cannot be taken for the first time at the trial as a ground for rejecting the whole report.</p>

Complaint, dated December 1, 1893, charging the defendant with keeping intoxicating liquors with intent unlawfully to sell the same. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict of guilty; and the defendant alleged exceptions. The facts appear in the opinion.

<p>Corporation — Validity of Contract — Public Policy — Appraisal of Stock — Specific Performance —• Evidence — Remedy.</p> <p>The fact that conditions printed upon a certificate for shares of stock in a corporation are contained in by-laws of the corporation which may be invalid as such, does not render void the agreement made in accepting the certificate by the person to whom it is issued, if the contract is in substance one which the corporation has power to make.</p> <p>A corporation has the power to agree with a purchaser of shares of its stock that, at his deatli, the shares shall be appraised by the directors of the corporation and transferred to it at the appraised value, if the directors so elect, who, “ whenever, in their judgment, it can be done with safety and advantage to the corporation,” shall “ sell the shares to such persons as shall appear to them, from their situation and character, most likely to promote confidence in the stability ” of the corporation; and such an agreement is not contrary to public policy.</p> <p>Certificates for shares of stock in a corporation recited that they were subject to the conditions expressed in the by-laws of the corporation printed thereon, which provided that the executor or administrator of any deceased stockholder should cause his shares to be appraised by the directors, and should thereupon offer the same to them for the use of the corporation at such appraised value; that if the directors should not, within ten days after the shares were offered to them, take the same and pay the executor or administrator the appraised value, he might sell the shares to any person; and, by an amendment, that it should be the duty of such executor or administrator to offer the shares for appraisal and to be taken by the corporation, if it should so elect, whenever requested by a certain officer within a time limited. A certificate for shares was issued to A., who receipted for the same as follows: “ Received the above certificate subject to the conditions and restrictions therein referred to, and to the by-laws of the company, to which I agree to conform.” At a meeting of the directors of the corporation it was voted that the stock of A., who had died, be appraised at a certain sum per share and taken for the use of the corporation. Held, upon a bill in equity to compel the executor of A.’s will to transfer the shares to the corporation, that the appraisal was valid; and that it was not necessary that the defendant should offer the stock to the corporation for appraisal.</p> <p>If the by-laws of a corporation, containing conditions subject to which the certificates for stock are issued, provide that at the death of a stockholder his shares shall be appraised by the directors of the corporation and transferred to it at the appraised value, if the directors so elect, who are to dispose of it in a certain manner, it is no objection to a bill in equity by the corporation against the executor of the will of a deceased stockholder, whose shares it has so appraised and voted to take for the use of the corporation, for specific performance of the agreement to convey the shares made in accepting the certificate, that the stock was undervalued, there being no fraud in the appraisal, and evidence relating to the value of the stock is rightly excluded; and, no stock in the corporation ever having been sold in the market, but all shares which have been transferred having been transferred to the corporation and disposed of by the directors in the manner provided, an action at law for damages will not furnish an adequate remedy.</p>

<p>Contract, against the Owen Paper Company, a corporation, Henry D. Cone, and Sarah B. Cone, upon the following instrument:</p> <p>“ 125,000. New York, Nov. 11th, 1891. On March 11th, 1892, after date, without grace, we promise to pay to the order of the State Trust Company, at the office of said company in the city of New York, twenty-five thousand dollars in gold coin of the United States of the present standard of weight and fineness, or its equivalent, for value received, with interest at the rate of six per cent per annum, having pledged to the said company the under mentioned security (with authority to sell the same on non-performance of this promise, in such manner as they, in their discretion, may deem proper, without notice, either at any brokers’ board or at public or private sale, and to apply the proceeds thereon), viz. 25 shares Owen Paper Co. stock. In case of depreciation in the market value of the security hereby pledged, or which may hereafter be pledged for this loan, a payment is to be made on account on demand, so that the said market value shall always be at least . . . per cent more than the amount unpaid of this note. In case of failure to do so, this note shall be deemed to be due and payable forthwith, anything hereinbefore expressed to the contrary notwithstanding, and the company may immediately reimburse itself by sale of the security. It is understood and agreed that, if such sale be by public auction, the said company shall be at liberty to purchase for its own account any property offered at such sale, and it is further agreed and understood that the above mentioned securities, or substitutes therefor, or additions thereto, shall also be held as collateral, and be applicable to any other note or claim held against us by said company, and that in case the proceeds of the whole of the collaterals shall not cover principal, interest, and expenses, we hold ourselves bound to pay on demand any deficiency. Owen Paper Co., Henry D. Cone, Tr.”</p> <p>It was indorsed on the back: “ Hy. D. Cone, Sarah B. Cone.”</p> <p>The declaration alleged that the individual defendants indorsed the instrument in blank before delivery, and that payment of the instrument was duly demanded of the maker, which neglected to pay the same, and due notice of its non-payment was given to the other defendants.</p> <p>The answer set up “ that, by the alleged contract of indorsement before delivery of the note declared on, the defendants Henry D. Cone and Sarah B. Cone are not liable upon the said note to the payee, the plaintiff herein, and that by the laws of the State of New York, where the contract was made, they did not by signing the said alleged note or contract undertake to pay the said plaintiff the amount of said note, or any sum whatever ”; and “ that the said alleged contract was made in the State of New York and was there to be performed, and they deny that the plaintiff ever demanded payment of the said note of the maker thereof as required by the law of that State.”</p> <p>The plaintiff filed the following replication:</p> <p>“And now comes the plaintiff, and admitting that the contract contained in the promissory note set forth in the declaration in this case was made in the State of New York and was there to be performed, but not admitting any other of the facts set up in the defendants’ answer, but denying the same, for replication to said answer the plaintiff says that, if the defendants shall prove that the law of the State of New York concerning the contract of indorsement or signature of a promissory note is anywise different from the law of this Commonwealth, it will then appear; and the plaintiff doth allege that the defendants are nevertheless liable to the plaintiff upon said note by the law of New York, and that the defendants Henry D. Cone and Sarah B. Cone signed the same upon the back intending thereby to become liable to the plaintiff thereon, and intending also to become security, surety, guarantor, or indorser for the promisor on said note, and to give the promisor credit with the plaintiff thereon, and the said Sarah B. intending also to give said Henry D. credit with the plaintiff thereon, and that neither said Henry D. nor Sarah B. intended in any event to hold, or to be entitled to hold, the plaintiff liable thereon, but both of said parties did intend that the plaintiff should rely upon their said indorsements, and the plaintiff did so rely, and took said note on the faith thereof, as said Henry D. and Sarah B. well knew and intended, and that in consequence of said facts the said Henry D. and Sarah B., as well as the said Owen Paper Company, are liable to the plaintiff upon said note by the law of New York. And the plaintiff further says that said Henry D. and Sarah B. did, before the maturity of said note, waive demand of payment and notice of non-payment of said note, but that the plaintiff did make due demand for the payment thereof, which was refused, and that the plaintiff has done in that respect all things required by the law of New York to be done in order to hold the said defendants liable upon said note.</p> <p>“ And the plaintiff further says, that since the bringing of this action it has indorsed said noté without recourse above the signature of the defendants Henry D. and Sarah B., and that by the law of the State of New York it is entitled so to do, and that by said law the said two defendants are thereby made expressly liable to the plaintiff upon their said indorsements.”</p> <p>Trial in the Superior Court, without a jury,- before Richardson, J., who reported the case for the determination of this court. Sarah B. Cone alone defended. The facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, and for damages to bis horse and conveyance. The declaration alleged that the defendant so negligently drove her horse, attached to a conveyance, that the plaintiff, his horse and conveyance, were crowded off the road and against a bridge, the conveyance thrown over, and the plaintiff thrown out and injured, and his horse and conveyance damaged. The answer was a general denial.</p> <p>At the trial in the Superior Court, before Richardson, J., there was evidence for the plaintiff tending to show that he drove upon the highway, where the defendant’s conveyance was, from a side street which ran substantially at right angles thereto, passing in the rear of the defendant’s conveyance to the left-hand side of the highway, the defendant’s conveyance then being upon the right-hand side. From this point, the plaintiff followed the defendant’s conveyance a distance of about sixteen rods, and at a distance of from one to two rods in the rear gradually overtaking the defendant’s conveyance, until at a point just west of the entrance to the bridge, when the head of the plaintiff’s horse was about opposite the forward wheel of the defendant’s conveyance, which was about to enter upon the right-hand side of the bridge. The plaintiff was going at the rate of about five miles an hour and the defendant at about four miles an hour, and there was ample space upon the left-hand side for the plaintiff to pass the defendant, and this the plaintiff was then attempting to do. After the defendant’s conveyance had entered upon the bridge it turned from right to left abruptly, and obliquely so that it was upon the left-hand side of the bridge and took up so much of the space on that side that there was not room for the plaintiff to pass without a collision with the defendant’s conveyance. Thereupon the plaintiff, in attempting to avoid a collision, immediately reined in his horse to the left, so that in going a distance of about four feet, and before he was able to stop his horse, the north wheel of the plaintiff’s gig was forced upon the north truss of the bridge for a distance of about three feet, and the gig tipped over toward the south, and the plaintiff was thrown out and injured, and the plaintiff’s horse thrown down. Neither the plaintiff’s horse nor his conveyance collided with the defendant’s horse or conveyance, but the plaintiff’s horse upon getting up passed over the bridge with the gig drawn upon the hub of the south wheel, and at the time the plaintiff was so thrown out the defendant’s driver backed his conveyance over upon the right-hand side of the bridge. The plaintiff’s gig in overturning upon the hub of the south wheel and passing the defendant’s conveyance occupied less space than the gig would have occupied if right side up. The diameter of the wheels of the plaintiff’s gig was considerably less than the width of the gig from the outside of the hubs. The carriage path of the bridge was admitted to be eighteen feet and two inches wide.</p> <p>There was evidence for the defendant tending to show that she entered upon the right hand side of the bridge and at no time passed over upon the left hand side, and she and her driver testified that neither of them saw the plaintiff, or knew that he was attempting to pass, until they saw him fall near her forward wheel, and that neither she nor her driver when entering upon the bridge, or while they were upon it, before the accident, looked back to see whether the plaintiff or anybody else desired or was attempting to pass. The defendant also testified that at the time of the accident her horse was walking, and that neither she nor her driver turned their horse and conveyance from the right-hand side of the bridge to the left-hand side, for there was no person or team approaching them in front, and they had no knowledge of the plaintiff or any one being behind them desirous of passing them, and there was no necessity for them to leave the right-hand side of the bridge.</p> <p>In the argument to the jury, the defendant’s counsel claimed that the plaintiff’s gig in tipping over must have occupied a much greater space between the north truss of the bridge and the defendant’s conveyance than it would if right side up, and that, as there was no collision with the defendant’s conveyance, the latter must have been upon the right-hand side of the bridge; and in illustrating his argument upon this point he exhibited to the jury a sketch representing the plaintiff’s gig standing right side up and also tipped over. The plaintiff’s counsel during his argument to the jury, and for the purpose of illustrating the laws of motion as applied to the plaintiff’s conveyance, and for the purpose also of illustrating his argument that the plaintiff’s gig in tipping over would not occupy the space claimed by the defendant’s counsel, had constructed and placed upon the table in front of the jury and then introduced for the first time a rough representation of the truss of the bridge and of a two-wheeled gig with shafts, which truss and gig so presented did not represent the proportionate height of the plaintiff’s gig to the truss of the bridge. The defendant’s counsel objected to their introduction; and the plaintiff’s counsel stated to the court that he did not desire or propose to use them in any sense as evidence, or to claim that they were a correct representation of the truss of the bridge or of the plaintiff’s gig, but merely desired to use them to illustrate his claim that the gig in tipping over would not occupy more space than if right side up. The judge ruled that the representations of the truss and gig, not having been introduced in evidence or offered earlier in the case, should not be then used by the plaintiff’s counsel in the way proposed, and upon the request of the defendant’s counsel, and against the objection of the plaintiff, ordered them removed from the presence of the jury, stating that if they had been offered before the counsel for the defendant had argued, they would probably have been admitted for the purpose suggested; to which refusal and order of the judge the plaintiff excepted.</p> <p>The plaintiff requested the judge to rule as follows:</p> <p>“ 1. If the defendant’s conveyance was being driven so that any part or all of the same extended over the middle line of the travelled path of the way, or over the middle line of the bridge, then such conveyance was in that part of the way or bridge reserved by law for the use of travellers who might meet the defendant going in the opposite direction, or travellers who might desire to pass the defendant going in the same direction, and if the defendant or her driver drove from the right hand side of the bridge to the left-hand side of the same without first attempting to ascertain whether the plaintiff was behind and about to pass the defendant’s conveyance, and the position of the defendant’s conveyance so taken was the proximate and sole cause of the injury, the plaintiff is entitled to recover if at the time of his injury he was in the exercise of ordinary care and prudence. 2. If the defendant’s conveyance, or any part thereof, was upon the left-hand side of the middle line of the travelled part of such way, or the middle line of said bridge, without necessity sych as to avoid danger of collision with other teams, persons, or objects, then such conveyance was unlawfully there. If the defendant and her servant took no pains to ascertain whether the plaintiff was behind and attempting to pass on the left-hand side, and if this was the cause of the plaintiff’s injury, then he is entitled to recover if he was in the exercise of due care at the time. 3. If the defendant’s conveyance was on the left-hand side of the bridge this fact is some evidence of negligence of the defendant. 4. If, at the time the plaintiff attempted to pass the defendant’s conveyance upon the bridge, there was ample room for him to do so upon the left, he had a right to make the attempt, and such attempt was not negligence, and he was not bound to attempt to pass upon the right. 5. If what the plaintiff did under all the circumstances was that which a man of ordinary care and prudence would have done, then he was not guilty of negligence.”'</p> <p>The judge gave the fifth request, but refused to give the other-requests, except as hereinafter stated, and among other instructions gave the following:</p> <p>“ Among the plaintiff’s requests for rulings is this: If the defendant’s conveyance was on the left-hand side of the bridge this fact is some evidence of negligence of the defendant.’ If that is a fact, it is some evidence of the negligence of the defendant, but I cannot give that without some qualification, because ... a party driving along a road or across a bridge has a right, unless he is about to meet somebody, or unless somebody is behind and wants to pass, to go in the centre of the road, or on the left hand side, or on the right hand side, just as his convenience or pleasure dictates.</p> <p>“ It is only when he is about to meet somebody that the law obliges him to go to the right, and then perhaps I will add, in the other case, when a party is behind trying to pass him, and he has some notice or knowledge that such person is faying to pass him, that he ought to turn to the right or left, whichever the case may be; ordinarily, of course, as the law says, a party passing should pass to the left, and it would naturally follow, although the law does not say so in express terms, that the party in front would naturally turn to the right, because that would be a proper thing for him to do. But at other times when you are driving ... I do not understand it to be your duty to drive on the right-hand side of the road always, under all circumstances, everywhere. Nor do I understand it to be the duty of the party driving along a highway to look behind him or see what is going on behind him. His duty naturally would be to look ahead, in the street.</p> <p>“ The plaintiff also asks me to rule, If, at the time the plaintiff attempted to pass the defendant’s conveyance upon the bridge, there was ample room for him to do so upon the left, he had a right to make the attempt, and such attempt was not negligence, and he was not bound to attempt to pass upon the right. That might or might not be so. . . . If one desires so to pass a person, it might depend upon the circumstances, the situation, and . . . the facts at the time.”</p> <p>The plaintiff at the close of the instructions made the following oral request: “ It was the duty of the defendant before crossing from the right to the left hand side of the bridge to look behind to see whether the plaintiff or some other person were not about to pass.”</p> <p>Thereupon the judge further instructed the jury:</p> <p>“ I simply repeat to you the general duty of a man to look on either side of him, or behind him, under some circumstances. ... I can imagine that if a person were driving through a crowded way, like Washington Street in Boston, where there is a row or two of cars or carriages on either side or behind, he might have to look almost everywhere; and there might be cases where you are driving along a country road, or across a bridge, where your whole duty would be accomplished if you looked ahead. I would say, if there were any circumstances in the case which in the exercise of due care required the defendant to look behind as well as forward', they are for you to consider. ... It is a question for the jury whether the defendant in this case should have looked behind or sideways; and in determining that question you are to bring your knowledge, intelligence, and experience here, and exercise it upon these cases. . . . There may be, or might be, circumstances which would require a party to turn out to the right, without knowing there was any person behind wanting to pass, but I do not undertake to give or state such circumstances.”</p> <p>Thereupon the plaintiff’s counsel orally asked the judge to rule that, before a party can take the risk of driving from the right-hand side to the left-hand side of the bridge, he must look behind him to see if anybody desires or is attempting to pass him upon the left; and the judge then gave the following further instruction to the jury:</p> <p>“ I have just stated that there might possibly be circumstances which would require a man to look, or turn to the right, . . . without notice that there was any person behind, . . . but I do not undertake to state a case to the jury. I have already stated that when a party is driving, and another person comes up behind and makes a request to go by, or undertakes to go by, and the other party sees him or has notice of his presence, then there may be a duty on the part of the person in front to take such course as may avoid a collision and avoid injury.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Petition, for the assessment of damages under St. 1890, e. 428, § 5, as amended by St. 1891, c. 123. By due proceedings in the Superior Court, upon petition of the respondent town and the Boston and Albany Railroad Company, certain grade crossings in the town were abolished, an overhead crossing was constructed, a new way was laid out over the land of the petitioner, and so much of an ancient public way across the railroad as was within its location was discontinued.

<p>Report of Special Master— Equity — Mill-Dam — Decree.</p> <p>No objection lies to the report of a special master if the matters determined by him as stated therein were involved in the issue made up by the parties, and were properly considered by him and included iri the report.</p>

<p>Trespass ■—Board of Health —Infectious Disease — Action— Tenant at Will — Damage to Reversion.</p> <p>The board of health of a city cannot, without the consent of the owner, lawfully establish and use premises as a hospital for patients sick with the small-pox, except under a warrant issued in accordance with the provisions of Pub. Sts. c. 80, § 43.</p> <p>An owner of land, who is not in possession and has no right of possession thereof, cannot maintain an action of trespass guare clausum fregit, but may maintain an action for an injury to the reversion.</p> <p>The owner of a house in a city which, while in the possession of a tenant at will, is taken and used, without the owner’s consent, by the board of health of the city as a hospital for parties sick with the small-pox, may maintain an action against the members of the board for the injury to his reversion, if it appears that such use of the house diminished its rentable value.</p> <p>A tenant at will in possession of a house in a city cannot, as against the rights of the owner, authorize the board of health of the city to establish in the house a hospital for patients afflicted with an infectious disease, and to maintain such a hospital there to the damage of the reversion.</p>

<p>Meaning of Word— Expert — Exclusion of Testimony — Remoteness.</p> <p>A witness cannot testify as to what he understood by a word in a letter to him, if the word is not a technical term, has no peculiar or local signification, and there are no extrinsic facts to create ambiguity, and if also, so far as appears, the witness has no better means of understanding the word than the jury.</p> <p>A witness who was offered as an expert upon the market value of real estate knew nothing about it except what he was told by others, and what he saw of it during a visit of six days. He was permitted to state the facts he observed tending to show its value; and there was nothing to indicate that the judge erred in holding that the witness had no such actual knowledge of market values in the place of location as to make his opinion competent. Moreover, the time to which his information related was more than a year and a half after the time of the alleged fraudulent sale in question, and his statement as to the condition of the buildings on the property indicated a great depreciation in values. Held, that the witness had no such knowledge of the market value of real estate at the place of location as to entitle him to give an opinion in regard to it, and that the testimony might well have been excluded on the ground of remoteness.</p>

<p>Complaint — City Ordinance — “ Stop.”</p> <p>An ordinance of a city was as follows : “ No person shall stand with or permit any team under his care or control to stand across any public highway or street in such a manner as to obstruct the travel over the same, and no person shall stop with any team in any public street at the side of or so near to another team as to obstruct public travel, and no person shall stop with any team or carriage upon or across any crosswalk in any street or highway in the city.” Held, that a complaint for a violation of the last clause of the ordinance, which set out the offence in the language of the ordinance, with a description of the team and a designation of the walk by reference to the street on which it was, was sufficient, without alleging that public travel was obstructed or that the defendant intended to obstruct it.</p> <p>"The following ordinance of the city of Springfield is reasonable : “ No person shall stand with or permit any team under his care or control to stand across any public highway or street in such a manner as to obstruct the travel over the same, and no person shall stop with any team in any public street at the side of or so near to another team as to obstruct public travel, and no person shall stop with any team or carriage upon or across any crosswalk in any street or highway in the city.”</p>

Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to the plaintiff while in the defendant’s employ.

<p>Tort, for personal injuries sustained by the plaintiff while operating a circular saw in the defendant’s employ. Trial in the Superior Court, before Fessenden, J., who, at the defendant’s request, ruled that the plaintiff was not entitled to recover, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Trustee process. Writ dated April 22, 1883. T. L. Haynes, summoned as trustee, answered that at the time of the service of the writ upon him he had certain funds in his hands due the defendants; and that prior to the service of the writ he had received notice that the funds had been assigned to one Aaron Slater, who demanded payment thereof. Slater appeared as claimant of the funds in the hands of the trustee, under the assignment.</p> <p>At the trial in the Superior Court, before Mason, C. J., without a jury, Slater testified that, at the time of making the assignment, the defendants were indebted to him in a large sum; and that the accounts transferred to him by the assignment, including that due from the trustee, being insufficient to secure him for said indebtedness, the defendants, who were doing business in the city of Hew York, confessed judgment to him for the difference between the amount of their indebtedness and the amount due on the accounts so transferred.</p> <p>The judgment having been confessed on the same day that the assignment was made, no general assignment for the benefit of creditors was made by the defendants.</p> <p>The plaintiffs requested the judge to rule that the assignment was invalid against the attachment made by the plaintiffs upon their writ.</p> <p>The judge declined to rule as requested; found for the adverse claimant; ordered that the trustee be discharged with costs to both the trustee and the claimant; and found specially that the assignment by the defendants to the claimant was in consideration of a bona fide existing debt to the full amount thereof, and, at the time of the assignment, the defendants were in an insolvent condition, and the claimant had knowledge of such condition. The plaintiffs alleged exceptions.</p>

<p>Personal Injuries—Defective Highway — Notice of Place — Due Care.</p> <p>A notice to a town that a person has been injured by a defect in the sidewalk of a street at a point “ just northerly of the northerly side of the entrance to the passenger station ” of a railroad company, sufficiently designates the place of the injury, under Pub. Sts. c. 52, § 19, if, in an action for such injury, it appears that the sidewalk was constructed on the easterly side of the street under a railroad bridge, through the easterly abutment of which an entrance led up to a station above, and the evidence tends to show that the injury occurred a little way from the entrance, and not more than fifteen or twenty feet northerly of it.</p> <p>In an action against a town for personal injuries occasioned to the plaintiff by falling, after dark on a snowy night, upon a hump of ice on the sidewalk of a frequented street which is constructed under a railroad bridge, having an entrance therefrom to a passenger station above, although he knew of the existence of the ice, having noticed it earlier in the day, and was not thinking of it at the time when he fell, if he testifies that he was going cautiously because it was slippery, and that he went along as cautiously as he could, and it appears that the sidewalk was in common use, and that another person was using it at the time of the accident, the question whether the plaintiff was exercising due care is for the jury.</p>

<p>Personal Injuries — Defect in Highway— Travelled Way — Instructions.</p> <p>A side of a street may be in such form, and so used, with tile knowledge and acquiescence of a town, as to be a portion of tile travelled part of the way which the town is bound to keep in repair, even though no work has been done upon it to fit.it for the use of pedestrians.</p> <p>At tile trial of an action against a town for injuries alleged to have been caused by a defect in a highway, the judge instructed the jury that the plaintiff could not recover unless the defect was “ within the travelled way,” and in explanation added the words “ that is to say, so connected with it and so used for travel that it may fairly be said to be within the limits of the way, and in such a way as to make the travel upon it unsafe by reason of the want of repair so existing.” Held, that the instructions were correct.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to the plaintiff while in the defendant’s employ. Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that he was employed by the defendant as a spare passenger brakeman, so called ; that it was his regular duty to act as brakeman on the 6.20 A. M. train from Holyoke to Springfield, then to take the 6.50 A. M. train from Springfield to Brightwood as conductor, and bring it back to the Springfield yard without passengers, arriving there about 7.05 A. M.; that again it was his regular duty, at 5.45 p. M., to act as brakeman on a train from Springfield to Holyoke, which was his last regular-duty of the day ; and that between 7.05 o’clock A. M. and 5.45 o’clock p. M. he held himself subject to the orders of one Ray, who used to be called the head conductor, and who had charge of all the brakemen, conductors, and baggage-masters, and to whom the plaintiff was in the habit of reporting regularly.</p> <p>On cross-examination, the plaintiff testified as follows: “ I went to work for the Connecticut River Railroad Company in August, 1885, working in the yard at Holyoke, switching. I stayed there until January 10, 1886, then I went to work as a passenger brakeman with Conductor Miller, to learn to run. I worked on that train for about a week or a week and a half; then I went to work on the head end of the mail train for about a week, and then went on the hind end of the mail train to Windsor, Vermont, for a few days. I continued to be brakeman every day until I was injured. At the time of my injury I came down with Mr. French on the 6.20 train out of Holyoke; then I ran the 6.50 train to Brightwood, which is two miles and a fraction from Springfield; then I used to go into the office and wait for orders. I did not brake after that until 5.45 at night. I used to help the conductor on the 5.45 train; the brakeman had to help the conductor take tickets ; the train went to Northampton, I got off at Holyoke. 1 got back from Brightwood in the morning at 7.05; between 7.05 in the morning and 5.45 at night what I did depended upon what Mr. Ray gave me orders to do. If there was a brakeman off, he would send me on to take his place. I never made any record of the number of times I went out as brakeman after 7.05 and before the 5.45 train in the month previous to my accident. My main business was not tending the electric signals; I did not have charge of all the work that was done on the electric signals; Mr. Ray had charge. I have- seen him work at Holyoke and at Springfield on the electric signals this very same year. I have seen him work at Holyoke a'good many times; if he didn’t find anybody, he used to go himself. I was not sent to put the wires on the rails all the way from Springfield to Northampton ; the head man put the wires on the rails. Dennis Sullivan was the head man; Sullivan did not work under me; he was sent to work with me. I do not know who put the wires in at the point where I was hurt. I did not put the wires in ; I never had any occasion to repair any of the wires in that spot; I have in other spots; if the signal was wrong, caused by a broken wire, I used to put them in sometimes, — not very often; sometimes a week and sometimes two or three weeks would elapse during which I would not go over the tracks on foot.”</p> <p>On re-direct examination, he testified as follows: “I wore a uniform of plain blue cloth, with buttons on the cap, and a badge on the cap ; on the badge it said, ‘ Brakeman, Connecticut River ’; I wore that right along; my wages were $1.75 a day and my regular day was from 6.50 in the morning, when I started for Brightwood. Mr. Ray told me that if I would come down with Mr. French every morning and help him he would allow me a quarter of a day extra; when I came down on the 6.20 train they gave the extra quarter of a day, and when I did not come down on the 6.20 they did not give it to me. They had on the Connecticut River Railroad at that time what is known as regular brakemen and spare brakemen; I was a spare brakeman they have spare brakemen, because sometimes a man might be taken sick and they have got to have a man to take his place. I was for many months and years the only spare brakeman they had; sometimes, in the summer time, they used to have two or three, — two were the most I ever saw. In the discharge of my duties, I had nothing to do with examining or looking over the tracks or these electric appliances.”</p> <p>The evidence for the plaintiff further tended to show that, on the Saturday previous to the accident, which happened on Morn day, December 5, 1892, the plaintiff had received orders from Ray to move a certain signal near the Plainfield Street bridge, so called, about three fourths of a mile north of the scene of the accident. The plaintiff and one Sullivan had worked on this matter all day Saturday, and had not finished it. On Monday morning, after returning from Brightwood and leaving the train in the Springfield yard, the plaintiff went down to the pay car, which was standing on a track running into the roundhouse, some distance south of the scene of the accident. The plaintiff received his pay and went from the pay car to the carpenter shop to get a board to finish the work of moving the signal. He then went back to the pay car to hurry up Sullivan, who was again working with him. The plaintiff and Sullivan then started from the pay car and went north between the mail track and the down main track, so called, the mail track being the one directly west of the down main track. They walked side by side until they reached the south end of the paint shop, where the plaintiff crossed over the down main track and continued along north in the clear space between the two main tracks, Sullivan walking between the rails of the down main track. The distance between the two main tracks from rail to rail was from six and a half feet to six feet and eleven inches. With two passenger trains going in opposite directions, there was not room enough to stand between them. The plaintiff and Sullivan had got about opposite the middle part of the paint shop, where there was a “ two-throw ” switch between the westerly rail of the track and the paint shop, when Sullivan crossed over to the space between the paint shop and the west track, and the plaintiff, looking ahead, noticed a passenger train in motion to back down on the east or up main track. It started from the north side of the entrance to Hampden Park; the engine was on the north end of the train, and there were two or three cars attached to it; and above the engine the atmosphere was smoky. The plaintiff continued along until he had gone about two thirds of the length of the paint shop, that is, up to another switch also between the westerly rail of the down main track and the paint shop, when he turned round and saw a train about two hundred or two hundred and twenty-five feet away, backing up on the down main track. The train was coming from the depot, and was going at the rate of about ten miles an hour. When the plaintiff looked back, the rear end of the other train, which was backing into the depot on the up main track, was right over the bridge at the entrance to Hampden Park. The plaintiff looked at his watch and started to go across and get out of the way, so as not to get caught between the two trains. As he went across, he noticed a banjo signal, so called, on the west of the down main track and just south of the Hampden Park bridge, showing a white face with a dark centre in the middle, which showed that there was a train coming upon that track from the north and in the same block with the signal. As the plaintiff was crossing the down main track to get out of the way of the trains, his foot caught upon a wire and he fell down, and, though he tried to get his foot off, he was held by the wire in such a position that the train, backing out of the depot on the down main track, ran over his foot, necessitating amputation. The wire upon which the plaintiff caught his foot was part of an electric signal system used by the defendant at particular points on its road, the wire being placed at each point in the track where the ends of two rails meet, the object of the wire being to make sure that the current of electricity will be carried, even though the strap iron which is ordinarily used in fastening the rails together should become rusty. The wire was a piece of ordinary galvanized wire, about three sixteenths of an inch in diameter, either end being affixed to the web of either rail by a bolt of some description. The wire ran along the web of the rail until the tie or sleeper was reached, when it ran out on the tie or sleeper in a U-shaped loop, which was fastened by staples at the extreme point and at each of the other two ends of the loop upon the tie. The wire upon which the plaintiff tripped stood up in the air two or three inches above the rail. Another workman in the employ of the defendant had noticed it in the latter part of November, when it stood up from the tie; it was not fastened, had no staple in it, and it was substantially in the same condition on the day when the plaintiff got hurt, except that it stood up higher. The wire was inside of the west rail of the down main track, and was from seven to fifteen feet south of the Hampden Park bridge. The train which struck the plaintiff was the “ Owl ” train, so called, which was due in the Springfield depot at 7.25 A. M.</p> <p>The plaintiff further testified that he knew the times when trains were due; that when trains run into the station at Springfield they have to back out into the yard; that he had “ braked ” on a train that was accustomed to back out into the yard, — the train that leaves at 8.10 P. M. out of Springfield to go to Windsor, Vermont,' and back at 7.25 in the morning; that he was brakeman occasionally on that train; that that was the train which ran over him; that the tracks east of the main tracks were switch tracks for freight -trains; that the freight trains are constantly moving about there, switching; that when he went out there he knew a train was due from the north ; that he knew that the regular trains were liable to come at any time, and freight cars were liable to be switched on the side tracks; that the trains on the main track might be expected to arrive on time; that when they came out of the depot and were going beyond the side tracks up as far as the paint shop, he had seen them back up on the up main track, the track which the cars would go on naturally as they were going north; that he had seen the “ Owl” train back out on the east track, and he had backed them himself on the east track; that he would cross over from the depot on the east track, then go up north of the bridge, then switch back on the west track, and then kick the cars on that track; and that he had done that a hundred times when he was on the train.</p> <p>The plaintiff was asked, upon cross-examination, if there was anything to hinder his going upon the street, and replied that there was a stone wall and a fence three and a half or four feet high at the east side of the railroad, next to the highway.</p> <p>The evidence for the defendant tended to show that the plain* tiff had charge of the electrical system of the defendant, which consisted of eight miles of electrical apparatus, spread over fifty miles of railroad; that, upon the morning of the accident, the plaintiff was seen walking north on the track by the paint shop; that there was a brakeman on the rear end of the train which struck the plaintiff, who hallooed to warn the plaintiff of his danger; that the plaintiff appeared to look around the last time the brakeman hallooed; that when the plaintiff left the pay car he passed by the train which afterwards ran over him; that the train was then standing still on the down main track near the pay car, and some of the men on the train spoke to the plaintiff; that at the time of the accident the train which struck the plaintiff was being kicked on to a side track, which left the main track a little north of the Hampden Park bridge, in the ordinary course of the defendant’s business; that at the time when the plaintiff was struck the train was going six or seven miles an hour; that the ends of the two trains passed each other at the southerly end of the paint shop; and that the wires at the joint on the bridge, and at the joint next south, were laid flat along the rail at the time of the accident.</p> <p>The rear end brakeman of the train that struck the plaintiff, called as a witness by the defendant, testified that he asked the plaintiff, immediately after the accident, if he did not hear him hallooing, and the plaintiff said, “ Yes, but I thought it was the other train”; that the plaintiff was excited at the time; that the witness told the plaintiff that he had done all he could for him ; and that the plaintiff swore at him, and said he had not.</p> <p>One Higgins, a witness for the defendant, testified that, on the morning of the accident, he was standing right north of the bridge, waiting for this train to back from the depot, and was looking out for the train that was coming down from Holyoke at the same time, to flag it; and that he did flag the train, and it stopped.</p> <p>Evidence was also admitted, against the plaintiff’s objection, tending to show that the plaintiff had, on several occasions, boasted about his ability to keep out of the way of trains and not get hurt; and the plaintiff excepted.</p> <p>The treasurer of the defendant corporation testified that the plaintiff had signed his name to the pay-roll under the heading “Machinist,” from December, 1887, to December, 1892; that he received $1.75 a day; that the pay-rolls were made out before they were signed; that in no place on the pay-roll was the plaintiff distinguished as an electrical machinist or electrical engineer, or anything of that kind ; that the wages of machinists were from $4.00 to $1.35 a day, and that the average wages of a machinist who had learned his trade were $2.25 and the average wages of brakemen $1.75 a day.</p> <p>The plaintiff, called in rebuttal, testified that it was no part of his duty to examine the wires in question, or to see whether or not they were securely fastened; and that he never did it.</p> <p>He denied the conversations about his ability to escape trains, and he also denied that he had passed the train that struck him while it was standing still, and that he had talked with any of the men on the train.</p> <p>At the close of the evidence, the judge, at the request of the defendant, ruled that, upon the whole evidence, the plaintiff was not entitled to recover; and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Indictment against John P. Clune and James Malley, found at the September- term, 1893, of the Superior Court, for uttering a certain forged instrument, on December 22,1892, at Springfield. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>An indictment for the same offence was found against Clune and Malley at the May term, 1893, of the Superior Court. Both indictments were found by the grand jury drawn, summoned, and impanelled for the year 1893. The indictment found at the May term was quashed, upon motion of Clune.</p> <p>On the indictment found at the September term, Clune and Malley were duly arraigned, and before the jury were impanelled Clune filed a plea in abatement, upon the following grounds: “ 1. Because said indictment was found and returned without any legal evidence having been presented to or heard by the grand jury who found and returned said indictment. 2. Because said indictment was found and returned by said grand jury without any evidence having been presented to or heard by them with reference to the offence in said indictment alleged. 3. Because no witnesses were heard by said grand jury with reference to the charge in said indictment set forth.”</p> <p>At the hearing upon the plea, Clune offered to prove that at the September term, when the indictment was found, no witnesses appeared before the grand jury, and no evidence was then introduced; that certain grand jurors, who were present at the May term and heard the evidence then presented upon which the indictment was found at that term, were not present at the September term ; and that certain grand jurors were present at the September term who were not present at the May term, when the evidence relating to said offence was introduced. The government objected to the introduction of this evidence. The judge refused to hear the evidence, and to quash the indictment ; and Clune excepted.</p> <p>At the September term, Clune and Malley were duly tried on the indictment found at that term, the jury returning a verdict of guilty as to Malley, and disagreeing as to Clune, and at the May term, 1894, Clune was again placed on trial.</p> <p>The government offered evidence tending to show that on December 22, 1892, Clune went into the tax collector’s office in the City Hall, in Springfield, and there took from a desk, upon which were blank checks on the different banks of the city, as well as blank notes and pieces of paper, something which the tax collector believed to be one of the blanks; that about one hour later on the same day he met the city messenger outside and in the rear of the City Hall, and asked permission, of him to use his desk and paper for the purpose, as alleged by Clune, of writing a note or bill against a person who owed him ; that permission was accorded him, and he went into the city messenger’s office in the City Hall, located on the opposite side of the corridor from the tax collector’s office, but nearer the front of the building, and wrote at the desk in that office for about three minutes; that, still later in the day, as testified by Malley, Clune went to Halley and handed him, at or near a billiard saloon on Main Street, in Springfield, (Halley being uncertain as to the precise place,) an envelope sealed and addressed to the teller of the Chicopee National Bank in that city, and asked Halley to get a messenger boy to take it to the bank and get it cashed; that Halley went into the billiard saloon and then went up Main Street to the north until opposite a certain dry goods store, where he saw a messenger boy, whom he asked to do an errand for him ; that Halley and the boy then walked down Main Street, Halley behind the boy, (the boy testifying that Halley asked him to walk some twenty feet ahead of him,) until they got nearly opposite the Chicopee National Bank, and Halley then gave the boy the envelope which he had received from Clune, telling the boy to go across the street and present the envelope to the teller of the bank, and that he would probably receive some money, and, when he came out, to meet Halley in the hallway next to a drug store, which was across the street from and nearly opposite the bank; that, in pursuance of this request, the boy went to the bank, presented the envelope to the teller, who unsealed the same and drew therefrom the check or order, which was set out in the indictment, and also a letter accompanying the same, requesting the teller to pay the bearer the amount of the check, and purporting to be signed by the drawer of the check; that the teller handed the boy the sum of fifty dollars, and the latter immediately crossed the street to where Halley was standing in said hallway, handed Halley the fifty dollars, and went with him into the drug store, where Halley got one of the bills changed and paid the boy twenty-five cents for his services; and that the boy then passed out and did not at any time see Clune. v</p> <p>Malley testified that, when he came out of the drug store, where he remained some five minutes talking with the clerk, he saw Clune coming diagonally across the street from Court Square, which was the first he had seen of him since receiving the envelope; and that Clune passed over to where Malley was and asked him if he had got the money, and there received the money, less the twenty-five cents paid the messenger boy.</p> <p>Malley testified in behalf of the Commonwealth, and had not been sentenced since his conviction by the jury, as above stated. Malley further testified that, some time after the delivery of the money by him to Clune, the latter, on the same afternoon, gave back to him some part of it; and that later he and Clune went to Hartford, Connecticut, together. Clune admitted going to Hartford, but denied being in the company of Malley. Both returned to Springfield the same evening. A plan of the location may be referred to.</p> <p>The defendant Clune requested the judge to instruct the jury as follows:</p> <p>“1. Upon the evidence and indictment in the case, the defendant should be acquitted.</p> <p>“ 2. If the order described in this indictment was a false, forged, or counterfeit order, and if Clune merely handed or gave the same to Malley for the purpose of having Malley obtain the money upon the same for Clune, and if Malley knew or had reason to know that the order was false, forged, or counterfeit, and if Malley obtained the money upon the same, then Malley was the utterer or publisher of the order within the meaning of the law, and Clune was but an accessory before the fact, and cannot be convicted under this indictment.</p> <p>“ 3. If the order was a false, forged, or counterfeit order, and if Clune, knowing its character, handed the same to Malley and told Malley to get a messenger boy and get the money on the same, and Malley, knowing or having reasonable cause to know that the order was false, forged, or counterfeit, gave the same to the messenger boy, who obtained from the bank the money on the same, and gave the money to Malley, who in turn found Clune and gave the same to him, then Clune cannot be convicted upon this indictment.</p> <p>“ 4. The defendants are improperly joined in this indictment, and Clune cannot be convicted thereon.</p> <p>“ 5. Malley is an accomplice, and it would not be safe to convict Clune upon his testimony, unless corroborated in a material point.</p> <p>“ 6. If Malley was an accomplice of Clune in the forging or uttering of the order, his testimony should be scrutinized by the jury with great care and caution.</p> <p>“ 7. If, in any material point, Malley has wilfully and designedly sworn falsely, it would be unsafe to rely upon any part of his testimony; for if in any particular it was ascertained that material testimony was designedly false, the jury would have no sufficient security that the same might not be true of every other portion of his testimony.</p> <p>“ 8. It is unsafe for the jury to rely upon any uncorroborated statement of a witness who in any one thing has knowingly and wilfully testified falsely.”</p> <p>The judge refused to give the instructions requested, and, among other things, instructed the jury as follows:</p> <p>“ If the order was a false, forged, or counterfeit order, and if Clune gave the same to Malley for the purpose of having Malley obtain money on the same for Clune, and if Clune was not present aiding and encouraging Malley in the uttering of the check, and if Malley knew, or had reason to know, that the order was false, forged, or counterfeit, and if Malley obtained the money on the same, then Malley was the utterer or publisher of the order within the meaning of. the law, and Clune was the accessory before the fact, and cannot be convicted on the indictment. If the order was a false, forged, or counterfeit order, and Clune, knowing it, handed the same to Malley and told Malley to get a messenger boy and get the money on the same, and Malley, knowing or having reasonable cause to know that the order was forged or counterfeit, gave the same to the messenger boy to obtain at the bank the money on the same, and he gave the money to Malley, who in turn found Clune and gave the same to him, and Clune was not present aiding or encouraging Malley at the uttering of the order, then Clune cannot be convicted on this indictment. . . .</p> <p>“ Assuming that Malley got this check from Clune, and got money on it substantially in the way the government claims, he would be an utterer of the check. As I have already said, it is an offence which more than one may be concerned in, and the government claims that Clune is concerned in it, and so concerned as to be a principal. He is so indicted. He says, while he contends he had nothing to do with it, if he had anything, upon the evidence, the whole evidence, as presented before you, he must be deemed an accessory, not a principal. So it is important for you to have clearly in mind the distinction between an accessory and a principal, and that is what is intended to be set out in these requests. A principal is one who in the meaning of the law is present and abetting, assisting, and encouraging the performance, the perpetrating of the crime. An accessory before the fact is one who, not bping present to aid, abet, assist, and encourage, has beforehand procured or taken other steps to have the crime perpetrated. . . .</p> <p>“ It must, therefore, be proved that the abettor was in a situation in which he might render his assistance in some manner to the commission of the offence. It must be proved that he was in such a situation by agreement with the perpetrator of the crime, or with his previous knowledge, consenting to the crime, and with the purpose of rendering aid and encouragement in the commission of it. . . .</p> <p>“ Take the evidence in this case. Suppose the government satisfied you on Clune and Malley having had some transaction about a previous check. Later Clune brought this check, with the note and the envelope addressed, and gave it to Malley, and gave Malley instructions in regard to the messenger boy, and told him about going to the bank and getting this money. What were their relations to each other ?- What was the understanding between them ? Where was Clune in reference to Malley ? Was he in the neighborhood? Was he near by when the money was brought from the bank? Was he near by for the purpose of giving encouragement and counsel, so as to assist him in case any sudden inquiry should be made from the bank, or did he simply, if at all, procure this check, and write the note, and give the envelope with the contents to Malley, with the direction to go and get the money and stay somewhere else, he himself absent so far off as not to be present within the sense and fair meaning of this rule of law? ... It does not depend necessarily upon any given number of feet, or upon any given number of rods. It may depend somewhat upon the nature of the crime. Suppose men were committing a burglary or a robbery of a bank, they might have half a dozen accomplices stationed around. Some might be at a very considerable distance, but there for the purpose of giving an alarm if anything happened, and within such a distance that by some signal arranged they might give the alarm to warn their confederates if somebody was stirring, then they might be found present within the meaning of the law, although not physically present, because present in the sense that they were located there for the purpose of giving warning or other assistance, if necessary, and at such a point that they could, give warning.</p> <p>“ So, here, in dealing with this part of the case, you have to consider the evidence, what took place between Chine and Malley, what their understanding was, where they went, and how they conducted themselves, where Clune was, and with what purpose; and it becomes a matter of fact for you to determine, having these distinctions in mind, whether, if he is connected with it, it is in such a way as to be a principal oían accessory before the fact. If the latter, he could not be convicted under this indictment. They are separate offences, as much as burglary and robbery. . . .</p> <p>“ There is something to be said about one or two matters of evidence. One is the testimony of Malley. He is a competent witness. You have heard his history, you have heard the statement as to his having been convicted and imprisoned, you have heard his statement as to his connection with this case, you have the facts before you that he has been tried and found guilty of this offence, that there has been a motion for a new trial in his case which has not been disposed of, and you have heard the suggestion that he might be influenced in his testimony by some possible advantage which he expects may accrue to himself by testifying. There is no evidence of any agreement between him and any prosecuting officer as to any indulgences or considerations for his testimony. I believe he was asked, and testified there was not. But take it all in all, in the light of all you have learned of him in the case, it is for you to determine the degree of credibility you will give to his testimony. If you believe, if it seems to you reasonable to believe, he is influenced in his testimony by any supposed advantage he may get from it, you have the right to take that into account. That is, it may be conceived as a possible thing that he may expect to get an advantage to himself in testifying, and thereby his testimony may be affected when he would not get anything, and there has been no arrangement to favor him or purpose to favor him. It is one of the things pertaining to our common human nature, in such a way that you have the right to take into account, in judging his testimony, that matter so far as you think you ought to, and, upon his whole testimony, and all you know, it is for you to say what degree of credit you give him. It is sometimes said that if a witness is found to have sworn falsely in one part, he should be disbelieved in anything he says. I do not understand that there is such a rule in law. The jury have the responsibility in such a case resting on them. In any given case, they may be satisfied a witness has sworn falsely with reference to one material matter, so as to make him entirely unworthy of credit; and they may set aside his testimony. In another case, where a witness has testified in regard to four important facts, and testified falsely in regard to one of them, the jury may, nevertheless, believe and think in regard to the other three he testified truly; and if they so think, in the exercise of their judgment they have the right to act upon it. In other words, there is no rule of law that requires a jury to disbelieve a witness in all he testifies because they disbelieve in part. It is a matter which the law leaves in their hands, uncontrolled by any rule.”</p> <p>The jury returned a verdict of guilty; and the defendant Clune alleged exceptions.</p>

<p>Intoxicating Liquors — Illegal Sale and Keeping — Judgment of Forfeiture — Conviction.</p> <p>On the trial of a complaint against intoxicating liquors, under Pub. Sts. c. 100, § 30, no judgment of forfeiture can be rendered unless it is proved that the liquors seized, or some part thereof, were owned or kept or deposited by the person charged in the complaint. A judgment in such case, ordering the delivery of the liquors to a claimant wiio is not named in the complaint, settles nothing as to the legality or illegality of such claimant’s intention.</p> <p>One may be convicted of keeping a tenement used for the illegal sale and keeping of intoxicating liquors, upon proof that he kept the tenement for the purpose of having it used by somebody else for the illegal sale and keeping of liquor, ■ although he did not intend to make any sale himself.</p>

<p>Fishing in Artificial Pond without Permission of Proprietors — Statute.</p> <p>The provisions of Pub. Sts. c. 91, § 27, which impose a penalty for fishing in that portion of a pond, etc. in which fishes are lawfully cultivated or maintained, contemplate in terms that the fish may be cultivated in a portion only of the pond, and the fact that there are other riparian proprietors into whose waters the fish may swim does not prevent the conviction of a person for fishing in such portion of the pond without the permission of the proprietors.</p>

<p>Indictment for A dultery — Divorce — Jurisdiction — Domicil — “ Guilty beyond a reasonable Doubt ” — Instructions.</p> <p>If, at the trial of an indictment for adultery, the defendant having obtained a divorce in another jurisdiction and married again, the evidence with its legitimate inferences may well satisfy the reason and judgment of the jury, and convince them to a reasonable and moral certainty that the defendant’s domicil remained in this Commonwealth, and that his purpose in going into another State was to get a divorce and not to change his home, a request for a ruling that the jury were not justified, upon the evidence, in finding him guilty, as it failed to show beyond a reasonable doubt that he was an inhabitant of this Commonwealth when the divorce was granted, is rightly refused.</p>

<p>Deed — Reservation — Right of Drainage — Easement — Estoppel — Equity.</p> <p>A reservation in a deed of land from B. of “ the right to use the drain across the easterly corner of said premises for the same purposes as heretofore used to said B., his heirs and assigns,” the grantee covenanting with said B., his heirs and assigns, that he will allow said drain to remain open and to be used as heretofore, creates an easement of drainage, which passes by a subsequent deed from B. of the dominant land without express words.</p> <p>A reservation in a deed of land of the right to use the dram across the easterly corner of said premises ” is not nullified by the fact that the drain empties into a cesspool on the servient premises, or by the fact that the line of the drain on the servient estate cannot be fixed without digging.</p> <p>The covenants of freedom from encumbrances and of warranty in a deed of land, over which an easement of drainage has been reserved in the' prior conveyance to the grantor, apply to the estate as subject to the right of drainage.</p> <p>If the reservation of an easement in a deed is express, upon a bill in equity to establish the easement this court will not consider the doctrine of easements reserved by implication.</p> <p>A reserved right oí drainage through an existing drain is not destroyed by the fact that the drain was once enlarged at the joint expense of the owners of the dominant and servient estates.</p> <p>An estoppel to claim a right of drainage is not necessarily established by proof of declarations by the person claiming such right, to the effect that he did not claim under a deed expressly conveying it; especially when there was no intention to mislead and no change of position on the part of the person setting up such estoppel, in consequence of such declarations.</p> <p>A bill in equity to establish a right of drainage by an existing drain through land of another may be maintained, if the right is denied, although the drain has not been actually obstructed or stopped by the owner of such land.</p>

<p>Intoxicating Liquors — Evidence — Instructions — Exception.</p> <p>At the trial of a complaint against an apothecary for unlawfully exposing and keeping intoxicating liquors for sale from May 1 to August 6, 1894, it appeared that the liquors were found in sundry bottles, and that there was also other evidence tending to show that they were kept for unlawful sale. After giving general pertinent instructions not objected to, the judge told the jury that the defendant, as an apothecary, had a right to have intoxicating liquors to be used solely to mix with other ingredients as a medicine, and that, if they should find that they were kept solely for that purpose, they should return a verdict of not guilty, but that if they should find that they were kept for sale they should return a verdict of guilty. There was no evidence which called for any other instructions, the defendant did not testify, there was nothing to show that any part of- the liquors were on hand before May 1, as a part of the defendant’s stock when he held the license to sell for medicinal and similar purposes; and if they were a part of his former stock, there was nothing to show that he was keeping them at the time of the seizure for any other purpose than either to sell or to mix with other ingredients as a medicine. Held, that the defendant’s statement to the police officers at the time of the seizure, that part of the liquors were on hand before May 1 as a part of his stock when lie held the license to sell for medicinal and similar purposes, was not evidence in his favor, that the instructions were appropriate, and that the judge was not called upon after the close to give, at tlie request of the defendant, an instruction founded on an hypothesis of fact of which there was no direct evidence but only a possibility of an inference.</p> <p>If, at the trial of a complaint for unlawfully exposing and keeping intoxicating liquors for sale, reasons given to the defendant’s counsel for refusing a ruling requested by him, and a ruling made in connection with such refusal, were no part of the instructions to the jury, and if they did the defendant no harm, even though erroneous, the defendant has no ground'of exception.</p>

<p>Contract, on a bond in the usual form, given by the defendant as principal and two other persons as sureties, conditioned, among other things, that the defendant, who had been appointed executor of the will of Henry C. Ammidown, should administer the estate according to law, and render an account. The breaches alleged were that the defendant had not administered the estate according to law, and had failed to account.</p> <p>The case was referred to an auditor, who found that in January, 1884, the defendant, out of the funds of the estate in his hands, bought sixty-three shares of the stock of Post and Company, an Ohio corporation, paying therefor $6930 ; that, at the time of such purchase, he was an officer and the principal stockholder in the corporation"; that he made certain representations in relation to the corporation to the widow of the deceased before the purchase; that the widow and the daughter of the deceased, who were the only persons interested in the estate, approved the purchase; that the defendant did not disclose to them that he was the principal stockholder in the corporation, nor that the money was then in the corporation’s hands, loaned to it, nor that the business depended on his own activity and health, nor that he had bought of himself or his wife the sixty-three shares he so conveyed to the testate, nor that, under the Jaw of Ohio, a stockholder in Post and Company was liable to the amount of the par value of the stock held for debts of the corporation, which could be enforced against him as trustee, and which might consume the whole remainder of the trust estate; that the defendant, upon his resignation as executor in 1886, *in settlement with the administratrix de bonis non, turned over to her a certificate for the sixty-three shares of stock; and that the defendant was indebted to the estate in a sum named, which included the amount so paid for the stock.</p> <p>Hearing before Barher, J., who reported the case for the determination of the full court, in substance as follows.</p> <p>The defendant resigned his trust as executor of the will of Henry C. Ammidown in 1886, and Mary T. Ammidown, the latter’s widow, was appointed administratrix de bonis non, with the will annexed.</p> <p>On April 6, 1886, the administratrix received, among other things, a certificate of sixty-three shares of Post and Company stock. The principal question was whether, in determining the amount for which execution should issue against the defendant, a credit should be given for the whole or for any part of the' amount invested by him in the purchase of said sixty-three shares of stock; the defendant contending that the whole amount so invested should be credited, and the plaintiff contending that no credit should be allowed therefor.</p> <p>In addition to the facts stated in the auditor’s report, and bearing upon this question, the judge found that, in making the investment of $6930 of the funds of the estate in said sixty-three shares of stock, and in transferring the shares to the administratrix de bonis non, upon resigning his trust, and in all other matters and things concerning his trust as executor, the defendant acted in good faith and with honest intentions, and that he never intentionally deceived or withheld information from either of the persons interested in the estate; that Mary T. Ammidown was a relative of the family of the defendant, and she had visited in Cincinnati, Ohio, and had there had means of knowledge as to the business and standing of the Post and Company corporation, and that, in assenting to the purchase of the sixty-three shares of stock, she did not act solely upon the representations of the defendant; that for a long time after she had, as administratrix, received the transfer of said stock, and while she retained the same, and received dividends thereon, and voted by proxy at the stockholders’ meetings, the stock was worth as much as, or more than, the amount of the trust funds invested therein, and might have been readily sold for at least that amount, and, if she had declined to receive the same, or had within a reasonable time retransferred or redelivered the shares to the defendant, he could have sold the same for an amount at least equal to $6930 ; that she did not place the stock within the control of the defendant, but herself retained the same until, from causes for which he was not responsible, it became of no value; and that, while there was a liability upon the holders of the stock for the debts of the corporation, those debts have been paid, and were never a source of real danger to the administratrix or to the funds in her hands.</p>

Contract, for money' had and received. After the former decision, reported 160 Mass. 386, the case was tried in the Superior Court, before Hopkins, J., who allowed a-bill of exceptions, in substance as follows.

<p>Indictment, against John J. Walsh and Thomas Casey, for breaking and entering the dwelling-house of Simeon B. Small and George B. Small, on July 26, 1892, at Pittsfield, and stealing therein. Trial in the Superior Court, before Sheldon, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendants testified, and there was other evidence also tending to show, that they had, for several days next prior to the day when the house in question was broken and entered, worked digging a ditch in Dalton not far from the house. They also testified that, upon the night next prior to the day when the house was broken into and entered, they had a fight with some men in Dalton, in which one of the defendants received a severe cut on his right hand, and during which the other defendant hit one of the men with whom they were fighting a severe blow with a club, knocking him down, when the defendants ran away, leaving the man on the ground; and the defendants gave this as the reason for their leaving their work, and also trying to avoid the officers on the day when the house was broken into and entered. Simeon B. Small and his wife testified to seeing the defendants, on the morning of the day during which the house was broken into, near the house of one Lamb, which appeared not to be far from the ditch, where the defendant Walsh was talking to a lady; and that the defendant Casey stood some twenty feet away when Simeon B. Small and his wife were going to their work. The defendants testified that they did not see Simeon B. Small nor his wife that morning. George B. Small testified that he was that morning at his work in that ditch, to which place he walked with Simeon B. and his wife, and that within three minutes after his brother left him the defendants came down where he was and said they were going off .to drink. The defendant Walsh testified, on cross-examination, relative to leaving his boarding place that morning, and the defendants’ counsel contended that he said that he started to go down to the work, meaning to the place where he had been at work, and so argued to the jury, and argued that he did not say that he started to go to work, nor with what purpose he started to the work; whereupon the judge stated, in presence of the jury, that his recollection of Walsh’s testimony was that, he started to go to work. The district attorney argued to the jury that the Smalls met the defendants going toward their house.</p> <p>The judge, when instructing the jury, said that it was in dispute between the counsel for the defence and the prosecuting attorney as to what Walsh had said; that his recollection was that Walsh had said that he started from the house to go to work, and, if he said that, it was for them to say whether the defendants did not change their minds about it after they saw the Smalls and knew the house was empty, and after they left their house to go to work on the ditch; and that the jury must give no more weight to .the statement of the judge as to what the evidence was than they would to the statement of the defendants’ counsel or of the district attorney, but must give no weight to either, and must rely on their own recollection of what the evidence was.</p> <p>The jury returned a verdict of guilty against each defendant; and the defendants alleged exceptions.</p>

<p>Contract, to recover the price of lumber sold by the plaintiff to the defendant. The answer was a general denial. The defendant also filed a declaration in set off, claiming a credit of $50 as a commission for effecting the sale of the plaintiff’s business as blacksmith and carriage-maker at Gardner, Mass. To this declaration in set off, the plaintiff filed a general denial. At the trial in the Superior Court before Bishop, J., the defendant did not contest his liability for the price of the lumber; and upon the question of the plaintiff’s liability for the commission claimed by the defendant, there was evidence tending to show that the plaintiff promised the defendant $50 if he would find him a purchaser for his business, but reserved the right to sell the same by his own exertions; that the defendant endeavored to find a purchaser for the business, described it to sundry persons, at one time took one Bartlett, a resident of Newton, N. H., and at another time Bartlett and one Wentworth, also a resident of Newton, to Gardner to examine the shop and business, paying their expenses; that the defendant also endeavored to induce one Eaton, and one Sanborn, both residents of Amesbury, Mass., to buy the business, and informed them that Bartlett and Wentworth had been to Gardner, seen the shop, and could give them information about it; that the defendant requested Eaton to inform any person who might desire to purchase such a business, that the plaintiff’s business was for sale ; that Eaton went to Newton, N. H., and saw Bartlett and Wentworth about the business; tho,t Eaton informed one Tuxbury that the plaintiff’s business was for sale, that Tuxbury informed one Legro of the fact, and that Tuxbury and Legro went first to Newton, N. H., and talked with Bartlett and Wentworth about the business, and then went to Gardner, saw.the plaintiff, and entered into negotiations with him which resulted in their purchase of the place. There was also evidence tending to show that the plaintiff bad himself advertised in the Boston Globe that his business was for sale, and that Legro had stated to him that he saw said advertisement; but this was denied by Legro, who was a witness at the trial, and testified that he first heard that the plaintiff’s business was for sale from Tuxbury.</p> <p>The defendant requested the judge to instruct the jury:</p> <p>“ If Gleason agreed to pay Nelson $50 if the latter found him a customer for his place, or sold the place for him, Nelson is entitled to the promised commission if the jury are satisfied that the purchasers of the place obtained their knowledge that it was for sale from persons with whom Nelson had negotiated for its sale, and acting upon and by reason of that knowledge went to see the place, and as a result bought it of Gleason.”</p> <p>The judge declined to give this instruction, and, among other instructions, gave the following :</p> <p>' “ If the person standing in the relation of Nelson brought the parties together, introduced them to each other, and then if by negotiations between the parties themselves afterwards they effected a sale, it is sufficient to entitle the man who brought the parties together to his commission, if he himself stood ready to do anything needed to effect the sale in addition afterwards. It is sufficient if the broker subsequently effects the sale by introducing the person to the owner, and by means of such introduction a person becomes the ultimate purchaser, if the broker is ready to do all that is necessary to effect the sale. . . . If the jury are satisfied that the defendant was the effective instrument and efficient cause of bringing about the sale by introducing these parties,- or by bringing them together, then he is entitled to a commission. The defendant is not entitled to a commission if the sale was made to a party not introduced by him to the plaintiff. If it cannot be fairly said that the purchasers were introduced to the plaintiff by Nelson, he is not entitled to a commission; and he is not entitled to a commission unless he did the identical thing for which he was employed, which was to obtain a customer. If he did not obtain a customer, was not the means of doing it, he is not entitled to his commission. If he was the means of doing it, if he did obtain a purchaser, he is entitled to his commission, although he may not have stood by to carry out the purchase after the parties had been brought together. . . .</p> <p>“ The parties had some talk about what the defendant was to do to sell the place. They had some talk about his advertising it. He did not advertise it, he says. But the plaintiff as well as the defendant went to work to sell the place, and the plaintiff did advertise it. Now the defendant saw various people who might become purchasers. He took two of them there, Bartlett and Wentworth, but for certain reasons they did not buy. Then he saw Baton and talked with him about his buying the place, and he might have been a customer, but did not become one. And he said to Baton, If you do not buy yourself, pray tell anybody who you may think possibly will want to buy this property about it, and send them to Bartlett and Wentworth, for they know all about it, having been there.’ Meanwhile, the plaintiff himself was not idle, and presently there came to him these two men, Tuxbury and Legro, and they purchased of him. What was the efficient cause of bringing Tuxbury and Legro to the plaintiff to buy? What was the instrumentality which brought them there to buy? . . . Was it anything which Nelson did directly ? ... Or was it what the plaintiff himself did by his advertisement ? Or was it by what we call an accidental finding out on the part of Tuxbury and Legro of the fact that this property was for sale, and then coming there without the intervention of either the plaintiff or the defendant ? If it was the latter, if it came about without the direct agency of the defendant, he cannot recover his commission. If it came about through the instrumentalities of the plaintiff himself, either by his advertising, or by his interesting other people to purchase of him, then Nelson cannot recover his commission. In order to entitle him to his commission he must satisfy you by a fair preponderance of the evidence that what he did brought these parties together. What he did, as he says, is that he authorized, instructed, and employed Eaton to act in this matter; that Eaton found out Tuxbury and Legro, and set them on the track of this thing, and sent them to Bartlett a.nd Wentworth, and then to the plaintiff, with whom the bargain was made. The plaintiff says it is not so. He says, whatever this man did with reference to anybody else becoming the purchasers through Eaton . . . was a general request or suggestion that Eaton should help him if he could, or interest persons if he could; but it was indefinite, and amounted to nothing, and that what Eaton did amounted to nothing, and the plaintiff says he has produced evidence tending to show that Tuxbury and Legro got their first information from the advertisement put in the newspaper by himself, or by other means which he set in motion. Mere hearsay knowledge of the fact that he wished to sell his property, communicated to the buyer by a- third person not employed by Nelson for the purpose, or authorized by him to make the communication, will not entitle him to a commission, although the customer came to the seller indirectly from Nelson. . . . Was Nelson the cause and instrumentality, the efficient or effective means of bringing these parties together? If so, he is entitled to his commission. But if you are satisfied that what the plaintiff himself did brought him a purchaser, the defendant is not entitled to a commission. If you think the reason why the purchasers came there was from the happening of events which took place without the agency of either the defendant or the plaintiff directly, then the defendant is not entitled to recover his commission.”</p> <p>At the close of the charge, the defendant’s counsel called the judge’s attention to the fact that the term “introduction,” as used by him, might be taken by the jury to mean an ordinary personal introduction, and the judge added: “ I do not mean a personal introduction, a physical personal introduction, where all the persons are present. I mean what is substantially and in reality an introduction, efforts that resulted in bringing the parties together.”</p> <p>The jury returned a verdict for the plaintiff for the full amount claimed in his declaration, without deduction for the defendant’s alleged set-off; and the defendant alleged exceptions.</p>

Tort, against Henry Duckworth and James Duckworth, copartners as H. and J. Duckworth, for personal injuries occasioned to the plaintiff, while in the employ of the defendants, by their alleged negligence. At the trial in the Superior Court, , before Fessenden, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions. The facts appear in the opinion.

<p>Life Insurance — Right of Administrator of Assured to sue — Action.</p> <p>A policy of insurance, not under seal, was issued to A. upon liis life, in which the insurance company agreed to pay to the person or persons designated in the fifth condition of the policy, upon receipt of proofs satisfactory to the company of the death of the insured, a certain sum of money. The fifth condition was as follows: “ The production by the company of this policy, and of a receipt for the sum assured, signed by any person furnishing proof satisfactory to the company that he or she is an executor or administrator, husband or wife, or relative by blood, or lawful beneficiary, of the insured, shall be conclusive evidence that such sum has been paid to and received by the person or persons lawfully entitled to the same, and that all claims and demands upon said company under this policy have been fully satisfied.” B. was named as the beneficiary in the application for the insurance made by A. Held, that the administrator of A.’s estate could maintain an action on the policy.</p>

Tobt, for personal injuries occasioned to the plaintiff by an alleged defect in a highway called Sargeant Street, in the defendant city. At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

Tort, for deceit. The amended declaration alleged that the defendant induced the plaintiff to exchange a parcel of land, with a dwelling-house thereon, situate in Holyoke, which she owned, and which was fairly worth $2,500 over and above all encumbrances, for a farm of his situate in Holyoke, together with ten cows, a pair of horses, five hundred bushels of potatoes, four hundred bushels of corn, and all the tools, vehicles, and other articles of personal property then on…

<p>Exceptions — Contract — Demand — Tender.</p> <p>A point not taken at the trial is not open upon a hill of exceptions,</p> <p>An agreement, signed by the defendant, certified that he had sold to the plaintiff certain mortgage bonds, one of them being called the “ W. bond,” by which the defendant agreed to take back the same bonds on thirty days’ notice, the plaintiff paying him a certain commission. In an action thereon, there was evidence that, in January, 1890, the plaintiff took to the defendant a letter which he had received from a loan company, stating that the mill on WVs land had been burned, and that the insurance company refused to pay. The plaintiff testified that he delivered the “ W. bond ” to the defendant, and said to him: “ I have brought this bond back to you, and I am glad it has so happened that I have a good backer that is able to pay for them and do as he agreed. This bond I bought of you to be paid in thirty days. I deliver it and shall expect you to pay it back according as agreed.” The defendant denied that any demand was made upon him; and his testimony tended to show that he received the bond to collect for the plaintiff. The judge, who tried the case without a jury, refused to rule as requested by the defendant, that “ the evidence being undisputed that at the time the plaintiff took to the defendant the letter of January 6,1890, and the W. bond, no commission was tendered the defendant, and no demand made that the defendant should receive and pay for the said bond, no demand and tender, as contemplated by the contract, was made”; and found for the plaintiff. Held, that the ruling requested was rightly refused; and that the plaintiff’s testimony was sufficient to authorize a finding that a demand was made. Held, also, that, a formal tender having been made to the defendant of the amount of his commission more than thirty days before the date of the writ, if any tender was necessary, the fact that it was not made in January, 1890, was immaterial.</p>

Tort, for personal injuries occasioned to the plaintiff by a defect in a platform connected with a building owned by the defendant in Holyoke. Trial in the ' Superior Court, before Mason, C. J., who allowed a bill of exceptions in substance as follows. It was admitted that the defendant owned the premises in question, and that the relation of landlord and tenant existed between the defendant and the plaintiff’s father.

<p>Argument to Jury — Improper Influence— Instructions.</p> <p>At the trial of an action the plaintiff's counsel in his closing argument made certain observations from which it might be inferred that improper influence had been brought to bear on the jury, but there were no suggestions or intimations during the trial of anything on which they could be based. The defendant’s counsel asked the judge to instruct the jury that there was no evidence to justify the use of the language, that it was uncalled for, and that they should give it no weight. The judge declined so to instruct the jury, hut gave instructions . whicli covered those requested, and told them in substance that they were to decide the case upon the law and the evidence, and nothing else. Held, that the defendant had no ground of exception.</p>

Contract, upon an account annexed, by J. S. Noble and Gr. H. Carter, copartners as Noble and Carter, for goods, consisting of cement and lime, sold and delivered. The answer set up the following defences: 1. A general denial. 2. That the plaintiffs acted as agents only in the sale of the cement, and such agency was disclosed prior to the sale. 3. An express warranty of the quality of the goods, and a breach of the warranty. 4.

<p>Tort, under Pub. Sts. c. 112, § 212, as amended by St. 1888, c. 243, by the administrator of the estate of John Hopkins, for causing his death. At the trial in the Superior Court, before Dewey, J., it appeared that the plaintiff’s intestate was in the employ of the defendant corporation as a brakeman; that on August 17, 1892, in the night time, while engaged in uncoupling cars on a freight train, he struck against a switch-stand, which stood close to the track, and was knocked from the car; and that he received injuries which resulted in his death.</p> <p>The jury returned a verdict for the plaintiff ; and the defendant alleged exceptions. The facts material to the points decided appear in the opinion.</p>

<p>Agreement upon Conveyance of Land — Deduction of Mortgage Debt — Instructions to Jury — Evidence — Statute of Frauds.</p> <p>The declaration alleged that the plaintiff conveyed to the defendant certain real estate, subject to mortgage, and that in consideration thereof the defendant agreed to pay off the mortgage and sell the real estate for the plaintiff’s benefit, and pay over to him the proceeds less the amount paid on the mortgage, and, in case he could not sell the real estate, to pay the plaintiff the market value thereof; that the defendant did pay off the mortgage, but, though requested by the plaintiff, refused to sell the real estate for the plaintiff’s benefit or to pay him therefor. The jury were instructed to return a verdict for the defendant if they found that any debt except the mortgage was to be deducted from the value of the premises, and they returned a verdict for the plaintiff. Held, that it was for the jury to say upon the evidence what the contract was, and that the statute of frauds was not a defence.</p>

<p>Bill in equity, filed in the. Superior Court by Lilian H. Andrews, receiver of the Cary and Moen Company, a corporation established under the laws of the State of New York, and having its place of business therein, to compel the defendant, administrator of the estate of Philip L. Moen, to pay over a balance of money and interest.</p> <p>The bill alleged that the corporation was organized in the year 1888 for the purpose of succeeding a partnership consisting of one A. Cary and one E. A. Moen, and bearing the name of Cary and Moen, and in fact received assignments and conveyances of the property of the partnership, and succeeded to its business; that the capital stock was one hundred and twenty-five thousand dollars divided into twelve hundred and fifty shares at the par value of one hundred dollars each ; that Philip L. Moen, late of Worcester, the defendant’s intestate, subscribed for and agreed to take and pay par value for four hundred and forty-four shares and was bound to pay to the corporation therefor the sum of forty-four thousand and four hundred dollars ; that he did actually pay to the corporation in cash, on June 18, 1888, the sum of four thousand five hundred and ninety-five dollars and sixty-four cents, and on June 20, 1888, the sum of three thousand seven hundred and forty-nine dollars and ninety-nine cents, making a total of eight thousand three hundred and forty-five dollars and sixty-three cents, and the balance of said forty-four thousand and four hundred dollars, to wit, thirty-six thousand and fifty-four dollars and thirty-seven cents, was never paid in any legal and effectual manner, and the said Philip L. Moen remained liable in law and in equity, and his estate remains liable in law and in equity, to pay to said corporation, or the plaintiff as receiver, the balance, with interest thereon from June, 1888; that, with intent to defraud the future creditors of the corporation, and the corporation itself, Philip L. Moen, E. A. Moen, and Cary combined and conspired together, being the owners of a large majority of the stock of the corporation, and E. A. Moen and Cary being the officers and managers thereof, to cause the corporation to receive, in lieu of cash or other valuable property from Philip L. Moen in payment for the balance due for the said four hundred and forty-four shares of the said corporation, certain notes and claims which Philip L. Moen then held against the partnership of Cary and Moen, and in pursuance and execution of the conspiracy the claims were turned over to and received by the corporation in lieu of cash or other.valuable property in alleged payment for the balance of the stock; that the claims against the partnership of Cary and Moen were then worthless and known to be so by said Philip L. Moen and E. A. Moen and Cary, and the alleged payment did not constitute any valid payment for the capital stock, and the same was a fraud upon the corporation and its future creditors, and was in violation of the statutes of the State of New York; that in aid of the combination and conspiracy, and as a part thereof, Philip L. Moen, E. A. Moen, and Cary combined and conspired together to cause the corporation to receive from the partnership of Cary and Moen all the property of the partnership, which was turned over to and received by the corporation at a grossly exaggerated and fictitious value, and to cause the corporation to assume the liabilities of the partnership, among which were the claims held as aforesaid by Philip L. Moen ; that a very large part of the property on which the capitalization of the corporation was based was the nominal balance between the assets of the partnership so as aforesaid grossly exaggerated in value and placed at a fictitious value, and the liabilities thereof; that in fact, at the time the corporation was organized and at the time of the combination and conspiracy, the partnership of Cary and Moen was insolvent, and was known to be so by Philip L. Moen and by E. A. Moen and Cary, and the property and assets of the partnership were of no value whatever above its liabilities, as the parties well knew, and the scheme was knowingly and designedly entered into by the parties with a view to defraud the corporation and its future creditors, by giving it a fictitious credit, and by making it appear that all its capital stock had been paid in in cash or its equivalent; that the corporation thereafter went on and did business, and incurred large liabilities between the date of its organization and April, 1891, and credit was given it by its present creditors on the faith that its capital stock had all been paid in in cash, or its equivalent, and in ignorance of the combination and conspiracy by which a large part of the capital stock was issued to Philip L. Moen without any payment of value therefor; that the excess of the liabilities of the corporation above all its assets was about one hundred thousand dollars, and in the Supreme Court of the State of New York in and for the City and County of New York proceedings were pending, the said Andrews having, been duly appointed receiver, wherein all creditors had an opportunity to prove their claims, and the design of which was to distribute by due process of law pro rata among the creditors all the assets of the corporation ; that by reason of the said combination and conspiracy, and the transactions hereinbefore set forth done in furtherance and in execution thereof, by force of his subscription and of the law of the State of New York Philip L. Moen was bound to pay the whole amount of his subscription for the capital stock in money, and was therefore bound to pay the balance of thirty-six thousand and fifty-four dollars and thirty-seven cents to the corporation, due for the shares subscribed for by him as aforesaid; and that the same had never been paid and was still due from his estate. The prayer was that the defendant be decreed to pay said balance and interest.</p> <p>The defendant demurred to the bill, assigning among other grounds of demurrer want of jurisdiction, want of equity, and a complete remedy at law. The demurrer was sustained by Aldrich, J., and the plaintiff appealed to this court.</p>

<p>False Representations — Damages — Expense of Keeping Horse — Reasonable Time — Allegations of Declaration.</p> <p>In an action to recover damages for the sale of a stallion by means of the false representations of the defendant of the value of the stallion as a breeding horse, the plaintiff can recover, in addition to the difference in value, the expense of keeping the stallion a reasonable time to test him.</p> <p>In an action to recover damages for the sale of a stallion by means of the false representations of the defendant of the value of the stallion as a breeding horse, allegations in the declaration that the plaintiff did expend large sums in the care and maintenance of the stallion until he could test him- as a breeder, and did so attempt to test him, and did thereby incur liabilities and expend large sums, are sufficient to include the expense of keeping the stallion.</p>

Contract, on an account annexed. Writ dated June 27, 1893. The answer was: 1. A general denial. 2. That the plaintiff should prove the sale and delivery of the goods as set forth in his declaration. 3.

<p>Tobt, under the Pub. Sts. c. 53, § 9, to recover the penalty-provided by a by-law of the plaintiff town for failing to remove snow from the sidewalk adjoining the defendant’s tenement and land fronting on Pleasant Street in that town.</p> <p>The by-law is as follows :</p> <p>“ 1st. The tenant, occupant, and, in case there shall be no tenant, the owner, or person, or corporation having the care of any land or building fronting on any street in the village where there is a concrete, stone, brick, or plank sidewalk, shall, after the ceasing to fall of any snow, ice, or sleet, within twenty-four hours cause the same to be removed from such sidewalks, and if the same cannot be wholly removed shall sprinkle thereon sand or other proper substance, so that such sidewalk shall be safe for travel; and in default thereof shall forfeit and pay a penalty of two dollars.</p> <p>“ 2d. The selectmen are hereby instructed to enforce this law in any case of its violation called to their attention, agreeably to section 9 of chapter 53 of the Public Statutes.”</p> <p>Trial in the Superior Court, without a jury, before Dewey, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The defendant owned about two acres of land in one parcel, upon which were two houses, each used for two tenements, which tenements fronted upon Pleasant Street, and stood about twenty feet back from a concrete sidewalk thereon; also a single tenement house, standing about one hundred and thirty feet back from the sidewalk, but connected with the street by a driveway and plank walk. The houses were not built as two-tenement houses, but were old-fashioned New England houses, with front door and hall and stairway in the middle, and rooms on each side. With each tenement was a small garden, the remaining land being occupied by the defendant, though not abutting on the street.</p> <p>One tenement in one of the two-tenement houses was without a tenant from November, 1893, until February 8, 1894, during which time the defendant had care of the same as owner, but the defendant never cleaned snow and ice from the sidewalk in front of the lot. By understanding and agreement with him the tenants were to do this, and there were no limits fixed as to how much each should clean off. All the other tenements had tenants.</p> <p>Snow ceased falling on the concrete sidewalk on January 27, 1894. From that part of the sidewalk in front of the vacant tenement and that part crossed by the driveway the snow was not removed within twenty-four hours (or at any time) after the snow had ceased to fall on the sidewalk, though the same could have been removed, and in front of the occupied tenement was removed by the tenant thereof, who declined to remove the snow in front of the vacant tenement. This tenant used the land in the rear of the whole house for a clothes-yard, and for other purposes.</p> <p>There was evidence that the house in question had one front door and one hall, which door and hall were used in common when both tenements had tenants.</p> <p>The judge ruled, at the request of the defendant, that upon the evidence the plaintiff could not, under the by-law, recover, and found for the defendant.</p> <p>If the ruling was correct, judgment was to be entered for the defendant; otherwise there was to be a new trial.</p>

<p>Personal Injuries — Instructions — Burden of Proof—Presumption — Negligence— Due Care — Expert— Question as to Admissibility of Interrogatory rendered Immaterial.</p> <p>If the instructions given to the jury by the presiding justice cover the rulings asked for by the defendant, and state the law correctly, the defendant has no ground of exception.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s - employ by the falling on him of shafting and pulleys fastened to beams overhead in the defendant’s factory, the judge refused to instruct the jury, as requested by the defendant, that “ No burden rests on the defendant to show or explain the cause of the accident,” and instructed them that the burden was on „ the plaintiff throughout; that under some circumstances the plaintiff’s injur)’, especially where the means of explanation were more likely to be within the control of the defendant than of the plaintiff, was itself evidence of negligence ; ■.. that the breaking of the machinery in connection with a failure of one who presum ably can explain to give explanation might be evidence of want of care in providing it, but this principle had no application to the case; and that the injury, though caused by the breaking of the machinery, was not in itself evidence that the defendant was wanting in due care to provide a reasonably safe place for the plaintiff to work in. The defendant further asked the judge to instruct the jury, “ The measure of the defendant’s duty was to exercise due care in providing instrumentalities for the plaintiff to use, and in providing a safe place in which the plaintiff was to work, and prima facie it is presumed to have done so.” The judge gave the first portion, including the word “ work,” but declined to give the rest, and instructed them : “ Negligence on the part of the defendant must be proved. It cannot be presumed. It is so far a presumption that the defendant discharged its whole duty, that, until it is proved otherwise, it is to be taken that it did so.” Held, that the defendant had no ground of exception.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ by' the falling on him of shafting and pulleys fastened to beams overhead in the defendant’s factory, one of the issues was whether the defend ant had properly inspected the shaft, and he introduced testimony to show that he had done so before the shaft was started, and from day to day while it was running, the witnesses testifying that the shaft ran without vibration, and that standing on the floor they could see if it or the pulleys oscillated an eighth of an inch. The defendant then called an expert, and asked him, “Can you state whether or not an experienced person, looking at a shaft revolving, and pulleys upon that shaft revolving two hundred and fifty revolutions a minute, whether a person can see whether it ran true or not?” and also, “Whether a person standing upon the floor, an experienced person standing upon the floor and watching this, can see any oscillation ? ” ' Both questions were excluded. Held, that even if it did not appear what the answer to the last question wmuld be, it " was to be inferred that it would be to the effect that any oscillation could have been seen by an experienced person in that position; and, assuming that the first question was objectionable in form, the last should have been admitted, as the subject was not one within the common experience of men.</p> <p>Where a new trial was granted on account of the exclusion of an interrogatory to an expert, the court said that it was not necessary to consider whether an interrogatory to another expert, which had also been excluded, was admissible at the stage of the examination at which it was put, even if it would have been admissible earlier, upon which it expressed no opinion, and that at the new trial it might become immaterial, or might arise under different circumstances.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ as a freight brakeman. The declaration was in three counts. The first count, which was at common law, alleged that it was the duty of the ■ defendant properly to inspect the cars of other companies coming upon its road, and that it had failed so to do, in consequence whereof the plaintiff was injured. The second count, which was under St. 1887, c. 270, alleged that the plaintiff was injured while attempting to couple “ two freight cars, both of which were defective in not having suitably constructed and adjusted drawbars and drawbar pockets or sockets,-whereby the head of one drawbar did slip out of place and by the other drawbar, and thereby caused the injury aforesaid; and these cars were used in the business of the defendant, and these defects arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person or persons in its employ intrusted with the duty of seeing that such cars were in proper condition.” The third count, which was also under St. 1887, c. 270, alleged a defective condition identical with that stated in the second count, and then alleged that “ this defective condition was not remedied or discovered owing to the negligence of the defendant, or of some person in its employ intrusted with and exercising superintendence, or whose sole or principal duty was superintendence.”</p> <p>Trial in the Superior Court, before Dewey, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff testified that the accident occurred on December 8,1892, while he was in the employ of the Connecticut River Railroad Company as a yard brakeman; that he had been so employed one week and three days, and that he was one of a number of men employed in switching cars to make up a train which was about to go north, and the train had been to the north end of the yard after water, and three cars were attached to the engine. These cars were backed down against a Delaware and Hudson coal-car, and he made an attempt to couple these cars together ; and the drawbars slipped by and caught his hand. The car nearest to the coal-car was a Michigan Central box-car, and both of them had come over from the Fitchburg Railroad on that morning or the previous night. He further testified that he was employed by one Benjamin, a train-master, and had not received any instructions as to how to shackle the cars together; that in attempting to shackle the cars together he went between them, facing the Delaware and Hudson coal-car, with his right hand upon the coal-car, with one foot inside the rail, and attempted to raise the link with his left hand, and his arm was caught between the dead wood and the head-block; that he could not reach the pin without stepping one foot inside the rail; that that was the way in which he was accustomed to shackle cars ; that the Michigan Central car was loaded with corn, and the Delaware and Hudson car with coal, when received by the defendant; that they were being put into the train to go north over the Connecticut River Railroad; and that at this time the conductor was near the north end of the yard throwing a switch. On cross-examination he testified that he had previously worked nine or ten months for the Fitchburg railroad as yard brakeman, doing the same kind of work, and had experience in coupling cars under the circumstances that existed when he was injured ; that the switch gang consisted of five men working in the Greenfield yard, and he was “ tail-end man ”; and that he could not tell the height of the bunter on the Delaware and Hudson coal-car or on the Michigan Central box-car, but thought that they were nearly the same height, — did not think they would vary an inch, but thought the bunter of the coal-car was “ a little mit'e higher than the other.” He further testified that neither drawbar went under the other, but they slipped by on the side; that the one the link was in went by; that the link was in the drawbar of the Delaware and Hudson car; that it was straight; that he had to hold it and get it into the bunter of the grain-car as it came down; that the drawbar was not opposite the other; that the grain-car struck on the east side ; that he was on the west side, with his face towards the Delaware car; that he could not tell how the cars were going to strike; that the car was coming quite fast, though no faster than usual; that he got the pin into the grain-car, and the link slid right by, striking on the east side of the drawbar; that he could not steer it into the receptacle, as he did not have time to pull a drawbar over there then; that he did not have time to get out of the way, and that he got caught, as there was too much play in the draw-bars. He further testified, on cross-examination, that he never saw a drawbar swing before over an inch; that he never saw drawbars go by in this way before ; that if he had got the link in that was fastened to the coal-car, it would not have slipped by unless the link broke; that he should' say that there was a small drawbar where there should have been a big one, and that the fault of the company was due to the fact that there was too much play between the drawbars; that he did not know, and he only so heard ; that he did not know of any reason why the defendant company was at fault; and that the track on which all the cars in question were was perfectly straight.</p> <p>One Woodlock, called by the plaintiff, testified that he found the drawbars locked by each other, and examined them and found that there was too much play in the drawbar; that there was most play in the pocket of the coal-car, — all of four inches ; that there was not quite so much play in the box-ear; that he had been employed in railroad business for about eight years, and most of the time as a freight brakeman; that he had a chance to observe the play of drawbars during that time, and that there ought not to be over an inch. On cross-examination he testified that cars could not be hauled around curves unless they had some play, or unless they had skeleton drawbars, which none of these cars had ; that there was more than one inch play in this case, and more than was necessary; that he saw the cars in the condition in which they were left; that the drawbars were locked by each other : that he was not observing with regard to the height of the drawbars from the ground, but thought one drawbar was probably two inches higher than the other; that the play of the drawbars was visible to any one who could look at it or inspect it; and he had never seen cars slip by in this way before; that there were inspectors there, Young and Tones, but that he did not see either of them inspect the cars ; and that he took particular notice that the pocket was nine inches wide, and the drawbar in it was only five inches, although he did not take exact measurements, and the pocket was too wide for the drawbars that were in there. He further testified that the mark which indicated that cars had been inspected was the letter “ H ” as a station mark, with the day of the month added ; that he went on each side of the car, and saw no such mark on the cars in question. And on re-cross-examination he testified that he was not looking for those particular marks, and they might have been there for all he knew.</p> <p>One Betters testified that he was employed as a switchman in the Greenfield yard on the day of the accident and was at the place a few minutes after the accident occurred; that the draw-bars were slipped by each other on the side; that he could not say just how much space there was between the drawbars and the socket, but it looked as though there was too much, as though the wrong drawbar had been put in ; that he knew the inspection mark which was put upon the cars with chalk to show that they had been inspected, — for that day it would be “ 8 H ” ; that he did not notice any such marks on the cars; and that he noticed the amount of play in the pocket of the drawbars, and as near as he could say there was four inches play on the Delaware and Hudson car, and two inches play on the other car.</p> <p>Woodlock, being recalled, testified as follows:</p> <p>“ Q. Did you know what the inspection mark was on that day? A. The letter ‘ H ’ was the station mark, with the date of the month.</p> <p>“ Q. So that the inspection mark would be what? A. 8 H.’” He further testified that he went both sides of the car, and did not see any such mark, and that he did not notice any marks at all on either car. On cross-examination he testified that his attention was not called to the marks ; that he was not looking for them; that he did not know whether they were there or not, and that they might have been there for all he knew.</p> <p>One Jones, called by the plaintiff, testified that he was employed under one-Young as foreman in general inspection and repairing of cars; that he was employed at Greenfield a part of the time, and was at work there on the day of the accident; that the proper inspection mark for that day, if the cars had been inspected, was “8H” on the opposite corners of the cars ; that he could not swear -whether the cars were or were not inspected on that day; that in the inspection of cars only Young and Jones were employed, and when inspecting one went on one side and one on the other, — Young on the east side and Jones on the west; that they did not look particularly at the yoke to see how much play there was; that if the drawbar and the bolts that held the yoke or strap were sound, they let the car go; and to the question, “ Can you say whether or not you looked at either of these cars to see how much play there was? ” he answered, “ I could not swear that I ever saw the cars.”</p> <p>At the close of the plaintiff’s evidence, the judge, at the defendant’s request, directed a verdict for the defendant, and reported the case for the determination of this court. If the ruling was right, judgment was to be entered on the verdict; otherwise, a new trial was to be ordered.</p>

<p>Master and Servant — Negligence — Act done by a Servant not as a Means or for the. Purpose of performing the Master’s Work.</p> <p>An act done by a servant while engaged in his master’s work, but not done as a means or for the purpose of performing that work, is not to be deemed the act of the master; and a person who is injured by such act, even if a negligent one, cannot recover damages of the master therefor.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by falling into a trench alleged to have been negligently made and maintained by the defendant’s servants. At the trial in the Superior Court, before Bond, J., it appeared that the trench was dug for purposes of the defendant’s water system on an estate occupied by one Ashline, with whom the plaintiff was a boarder.</p> <p>At the close of the plaintiff’s evidence, the judge, at the defendant’s request, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts material to the point decided appear in the opinion.</p>

<p>Evidence of the Financial Reputation of the Lender of Money — Promissory Note signed by a Mark — Instructions. •</p> <p>While in an action for money lent, or in an action on a promissory note where the consideration is money lent, the defendant may show that the person claiming to have lent the money had no money to lend, and may show his financial condition, he cannot introduce evidence of his financial reputation.</p> <p>In an action on a promissory note payable to the plaintiff on demand, and purporting to be signed by the defendant’s intestate by his mark, the judge refused to instruct the jury, at the defendant’s request, that the evidence from the paper itself should be given less weight than would attach to it if it purported to bear the genuine signature of the plaintiff’s intestate, and instructed them that while he could not say, as matter of law, that the note would not carry as much force as if the intestate had signed it himself, if he were able to write his name, still it was a circumstance for them to take into account in passing upon the evidence. Meld, that the ruling given was sufficiently favorable to the defendant, and that, if the jury were satisfied that the note was executed by the intestate by his affixing his mark to it, it could not be said, as matter of law, that it should be given less weight than if he had signed his name to it.</p>

<p>Personal Injuries — Railroad — Evidence — Foreign Law — Due Care — Action.</p> <p>In an action against a railroad corporation for personal injuries received by the plaintiff in alighting from the defendant’s train in another State, the plaintiff being a resident of still another State, where the defendant lias attachable property, evidence of the law of the last State, under which the plaintiff may, in a case of this kind, be deprived of a right to a trial by jury on the question of damages, and, upon the hearing before the judge, other matters in bar of the action may be presented to reduce the damages, is admissible to explain his conduct in bringing the action here instead of in the State of his residence.</p> <p>It seems, that, if a passenger on a railroad train, which has stopped at a dimly lighted station in the evening, steps from the platform of a car to descend to the platform of tlie station after the train has actually started, but he does not know, and by the exercise of ordinary care and prudence cannot know, that it has started, and is injured, the fact that the train had so started would not of itself prevent the maintenance of an action for his injuries.</p>

Tort, for injuries occasioned to the plaintiffs’ property by the fall upon it of a chimney built and maintained by the defendants. At the trial in the Superior Court, before Braley, J., the jury returned a verdict for the defendants; and the plaintiffs alleged exceptions. The facts appear in the opinion. The case was submitted on briefs to all the judges.

<p>Loss of Life — Employers’ Liability Act — Notice of “ Cause” — Exceptions — Due Care.</p> <p>If a bill of exceptions states that certain requests for rulings were presented to the judge, who declined to give them, and that the exceptions allowed are to “ this refusal to rule as requested and the rulings of the court as made,” and contains the judge’s charge reported in full, the exception to “the rulings of the court as made ” may be treated, not as an exception to the charge as a whole, but as saving exceptions to those rulings which were at variance with the rulings requested, and to which the attention of the judge was specially directed by the requests.</p> <p>A notice to an employer that, at a time and place named, his servant was instantly killed by “ the falling of a derrick upon him on account of the same being improperly or insecurely fastened,” sufficiently states the cause of the injury to permit a recovery under St. 1887, c. 270, § 1, cl. 1 or 2.</p> <p>A bill of exceptions stated that “during the delivery of the.charge the plaintiff’s counsel prepared the following requests for rulings, which he believed were proper because of the matter in the charge and the omissions therein, and at the close of the charge requested the court to give them,” which the court declined to do. Held, that the questions raised by the requests were important and leading points in the case, on which counsel might assume that proper instructions would be given without requests therefor, and that he was not cut off from the presentation of them by the rule that requires requests for instructions on hypothetical statements of fact to be made before the arguments.</p> <p>At the trial of an action under the employers’ liability act, St. 1887, c. 270, §§ 1, 2, for the death of the plaintiff’s husband while in the defendant’s employ, caused by the fall upon him of a derrick, which was alleged to have been in a defective condition and negligently managed by the defendant’s superintendent, the plaintiff is entitled to have the jury instructed that “the same care that people of ordinary prudence would exercise under the same circumstances ” was all that was required of the deceased.</p>

<p>Poor Debtor— Charges of Fraud — Motion in Arrest of Judgment — Motion to dismiss — Qualification of Magistrate — Exceptions — Evidence.</p> <p>Whether charges of fraud filed by a judgment creditor, under Pub. Sts. c. 162, § 17, against his debtor, upon the latter’s application to take the oath for the relief of poor debtors, are sufficiently formal and precise, cannot, under c. 214, § 27, be brought to this court by a motion in arrest of judgment after a verdict of guilty of the charges.</p> <p>A motion to dismiss an action, in which charges of fraud were filed by a judgment creditor, under Pub. Sts. c. 162, § 17, against his debtor, upon the latter’s application to take the oath for the relief of poor debtors, because of defects in the charges, was made at a certain sitting of the court, and related to the charges as they then stood. Amended charges and specifications properly sworn to, and the sufficiency of which was not questioned by the motion to dismiss, were made several months later, and the trial at which the debtor was convicted and sentenced was upon the amended charges and specifications. Meld, that the motion to dismiss was rightly overruled; and that the question of the sufficiency of the amended charges and specifications was not strictly brought before this court by an appeal from the order overruling the motion.</p> <p>If one of several charges of fraud filed by a judgment creditor, under Pub. Sts. c. 162, § 17, against his debtor, upon the latter’s application to take the oath for the relief of poor debtors, is well pleaded, a motion to dismiss the action because of defects in the charges cannot be sustained.</p> <p>A person in the employ of the attorney of record of a judgment creditor, who files charges of fraud, under Pub. Sts. c. 162, § 17, against his debtor, upon the latter’s application to take the oath for the relief of poor debtors, is not disqualified by interest to act as a magistrate in taking the creditor’s oath to the charges.</p> <p>An exception, taken at the trial of charges of fraud filed by a judgment creditor, under Pub. Sts. c. 162, § 17, against his debtor, upon the latter’s application to take the oath for the relief of poor debtors, to the admission of evidence which related solely to a charge of which the debtor was found not guilty, becomes immaterial.</p> <p>Evidence of good reputation is not competent to show that one is not guilty of a dishonorable or unlawful act which is not punishable as a crime.</p>

<p>Evidence — Collateral Issue.</p> <p>The mere fact that, at the trial of an action, a collateral issue may be raised, is not of itself enough to justify the exclusion of evidence which bears upon the issue on trial.</p> <p>In an action for injuries occasioned by the plaintiff’s horse becoming frightened at a flag suspended across a street in a town, and for the suspension of which the defendant is responsible, evidence is admissible to show that ordinarily safe and gentle horses have been frightened at the flag on other occasions.</p>

<p>Writ of Entry — Boundary — Disseisin — A dverse Possession.</p> <p>At the trial of a writ of entry, brought in 1893, the tenant traced his title back to a deed to B. dated in 1831, giving the northern boundary of the land conveyed as A.’s land, and providing that B., his heirs and assigns, were “■ to support all the fence around said land ”; and the deed under which the demandant claimed described his land as beginning “at the southerly corner of B.’s land” on the road, and made B.’s land his northerly boundary. There was evidence tending to show that the fence between the respective lots of the parties, which were adjacent to each other on the same street, stood where a very ancient fence stood ; and the judge, who heard the case without a jury, found that from 1854 to the time of the trial a fence had been maintained in the line of the present fence, and that during that period the several owners of the B. lot had “ openly and continuously held possession under a claim of right, and adversely, of the land northerly of and up to the line of said fence, including the demanded premises.” ' The tenant became the owner also of the land formerly owned by A.; and a survey showed that the measurements on the road and in the rear given in the deed to B., added to the measurements on the road and in the rear given in the deed of A.’s land referred to in the description of the B. lot, were together about six feet less than the actual measurements of the lines of these two lots as occupied by the tenant. The evidence tended to show that this land was formerly of little value, rough, uneven, covered in part with bushes and difficult of measurement. Held, that the judge properly found that the fence was the line of ownership between the parties; and that judgment was rightly ordered for the tenant.</p> <p>If an ancient deed of land provides that the grantee is “ to support all the fence around said land,” and a fence is erected by agreement of the parties in occupation of that and the adjoining land at or about that time, as and for a monument contemplated by the deed, and is so erected without fraud or mistake, and afterwards acted upon by them, a slight variation from mathematical accuracy in fixing its position will not affect its conclusiveness as a boundary.</p> <p>If the grantee in a deed of land, providing that he is “ to support all the fence around said land,” and his successors in title for more than twenty years occupy continuously up to a fence which was on the land at the date of the deed, or was erected there about that time, as a boundary of the lot described in the deed, but which is found by a survey to have been placed six feet beyond the line of such land, the seisin of such grantee will pass by his conveyance of the land, even though the language of the description is the same as that in the deed to him; and a subsequent grantee is entitled to invoke the continuous possession of his predecessors in title to establish a title to the strip of six feet' by disseisin and adverse possession.</p>

<p>Breach of Warranty — Action — Bar — Judgment and Payment in former A ction — Pleading.</p> <p>A judgment by agreement, without a trial, in an action by A. against B. upon a promissory note given in payment for property bought by B. of A., the answer in which alleged that, if B. signed the note, it was obtained by fraud and misrepresentation and without any consideration therefor, and a voluntary payment of the judgment, are not a bar to an action by B. against A. for the breach of a warranty in regard to the condition and quality of the property, although he knew of the breach of the warranty long before he paid the judgment; and the fact that the note contained a stipulation that the title to the property should not pass until the note was fully paid is immaterial in the second action.</p>

<p>Accident Irisurance — Burden of Proof—Law and Fact.</p> <p>In an action upon a policy of insurance against “ bodily injuries effected through external, violent, and accidental means, within the intent and meaning of the conditions ” recited therein, one of which is that no claim shall be valid thereunder “when the death or injury may have happened in consequence ... of any voluntary exposure to unnecessary danger,” and another of whicii is that “ standing, riding, or being upon the platforms of moving railway coaches other than street cars, or riding in any other place not provided for the transportation of passengers, or entering or attempting to enter or leave any public conveyance using steam as motive power while the same is in motion, . . . are hazards not contemplated or covered by this certificate,” the burden of proof is on the defendant, after the plaintiff has shown that the injuries were “effected through external, violent, and accidental means,” to show that they resulted from some of the causes specified in the conditions as not within the insurance.</p> <p>A policy of insurance was issued against “bodily injuries effected through external, violent, and accidental means,” containing conditions that no claim should be valid thereunder “ when the death or injury may have happened in consequence ... of any voluntary exposure to unnecessary danger,” and that “ standing, riding, or being upon the platforms of moving railway coaches other than street cars, or riding in any other place not provided for the transportation of passengers, or entering or attempting to enter or leave any public conveyance using steam as motive power while the same is in motion, . . . are hazards not contemplated or covered by this certificate.” In an action upon the policy, it appeared that the assured was a passenger on a train upon a certain railroad; that he was seen in his usual health in one of the cars of the train late in the evening, just before it reached a station at which trains were accustomed to stop; that he had a ticket for a station farther on, to which the train was going; that the train stopped at the first named station to take the mail; that the night was dark, and there was no light on the platform at the station; that, the train started slowly, and, when it had gone not more than thirty or fifty feet, he was discovered on the ground between the platform and the nearest rail of the track, with his legs crushed by the wheels of one of the trucks which had passed over them ; that he survived about four hours, being unconscious most of the time, and then died from the injury; and that no witness saw the accident, and nothing more was shown in regard to the cause of it. Held, that it could not be ruled, as matter of law, that the burden of showing that the injuries to the assured resulted from some of the causes specified in the conditions of the policy as not within the insurance, was sustained by the defendant, but that it was a question for the jury.</p>

<p>Two actions ON CONTRACT. The declaration was the same in each case, and, as amended, contained five counts. The first count alleged that on March 19, 1892, the defendant, by its agent, agreed with the plaintiffs to insure for a period of one year from March 20, 1892, certain property of the plaintiffs, upon the same terms and conditions as were contained in a policy of insurance in the sum of $2,500, issued by the defendant against loss by fire on the same property, and which expired on that day, and to issue to the plaintiffs, in due course, a policy of insurance in accordance with said contract. The second count alleged that the defendant agreed with the plaintiffs to insure the property upon the same terms set forth in the expiring policy of insurance from March 20, 1892, until said agreement should be superseded by another agreement, or until a policy should be issued by the defendant to the plaintiffs. The third count alleged that on March 20,1892, the defendant insured the plaintiffs’ property for the period of one year from that day. The fourth count alleged that on March 19, 1892, the defendant insured the plaintiffs’ property, and it was agreed that said agreement should continue in force from March 20, 1892, until terminated by notice from one party to the other. The fifth count alleged that on March 19, 1892, the defendant insured the plaintiffs’ property, and it was agreed that- this contract should remain in force from March 20, 1892, for a reasonable time.</p> <p>The cases were tried together in the Superior Court, before Michardson, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiffs, who were copartners, were manufacturers of shoes, doing business in Springfield under the name of the Springfield Shoe Company. The business was conducted by the plaintiff Charles H. Baker, who lived in Springfield, the other plaintiffs living elsewhere. Charles H. Baker is the Baker referred to in the testimony.</p> <p>There were no direct dealings between the plaintiffs and any officer of the defendant corporations, and the plaintiffs’ claim was based upon the dealings between Fred. A. Judd, who, for all pui-poses material to these causes, was admitted by the defendants to be the plaintiffs’ agent, and Thomas R. Weaver, a member of the firm of Ladd Brothers and Company, whose relation to the defendants hereinafter appears.</p> <p>Judd and Ladd Brothers and Company were each insurance agents, and their respective offices were in the same building in Springfield. Judd had charge of writing or procuring all the plaintiffs’ insurance. It had been the practice for several years between Judd and Ladd Brothers and Company, that, where either had insurance to be written which for any reason was not written by the companies represented by him or them, to cause it to be written by the other in companies represented by him or them. In such cases, it did not appear whether the premium was paid by the insured or by the agent procuring the insurance, or whether credit was given for the premium or it was paid in cash.</p> <p>Judd had procured Ladd Brothers and Company to write two policies of insurance, in the Massachusetts standard form, on the plaintiffs’ stock, for the amount of $2,500 each, one in each of the defendant companies. These policies expired on March 20, 1892, which was Sunday. Charles H. "Baker testified that, at an interview with Judd three or four weeks before the expiration of these policies, he told Judd that he wished the policies renewed, but that perhaps he might wish the form changed so as to cover not only stock, but also machinery and fixtures, as did all his other policies. The defendants admitted that the plaintiffs had at the time of the fire more stock in their factory than the amount of their insurance upon stock ; that they intended to renew the two expiring policies, and had done everything that could be expected of them in the way of instructing their agent, Judd, to renew the policies.</p> <p>Judd died after the beginning of these actions, and before the trial, and the only witnesses who testified to the making of the alleged oral contract of insurance were Kelson R. Hosley, a man of seventeen years’ experience in the insurance business, who was at the time, and had been since February, 1880, Judd’s clerk, and Thomas R. Weaver, above referred to. Both were called as witnesses by the plaintiffs.</p> <p>Hosley testified substantially as follows: “ In the latter part of the day, on Saturday, March 19, as near as I can remember, Mr. Weaver called at the office and asked about the policies of Baker and Company, which were expiring the next day. Mr. Judd and I were both in the office at the time, and he (Weaver) stepped up and said, ‘ How about those policies which will expire to-morrow of J. H. Baker? ’ I stood at the desk facing the door and Mr. Judd stood at another desk with his back towards the door, and I spoke up and said, They want to be held,’ or ‘ Hold them.’ Mr. Judd turned round and says he, ‘ Yes, hold them, I want to see Mr. Baker before they are written up; I think there-will be some change in the form, these policies covering all on stock and the balance of the policies covering on machinery, office furniture, and stock. I don’t know but that they are to be written as the other policies were.’ Mr. Weaver says, ‘ All right.’ On the next Monday, about three o’clock in the afternoon, Weaver called in the office and says, ‘How about those policies which I held over Sunday, the Baker policies ? ’ Judd says, ‘ I have not seen Mr. Baker yet, I would like to have you hold them until I can see him.’ Mr. Weaver replied that he would.”</p> <p>On cross-examination, Hosley testified that he understood that the policies were held over Sunday; and that he would not swear whether, in the conversation on Monday, Weaver used the words “ over Sunday ” or not, but that he did not use them in the previous conversation on Saturday.</p> <p>Weaver testified substantially as follows: “On Saturday, March 19, I went into Mr. Judd’s office, carrying some other policies which I had renewed for him, and asked him, ‘ What about the Baker policies ? you gave us the forms for Mr. Mackintosh, but you have not for Mr. Baker ’; and he said that these policies were special policies that covered on stock, and he did n’t think they would want to be renewed, but asked me to hold them over Sunday and he would see Mr. Baker and let me know. In the course of the conversation, Judd said he did n’t know whether they wanted them or not. He asked me to hold them over Sunday till he could see Mr. Baker. I went back to my office and wrote in pencil on the expiration book, opposite the two policies which were to expire, the word ‘ Hold.’ (The expiration book, which was in evidence, was a book kept by Ladd Brothers and Company, showing the date of the expiration of their policies.) I went to see Mr. Judd on Monday about one o’clock. That was the only time I saw him on that day. I had only one conversation with him on Monday. As I was about to go to dinner, I stepped into his office and asked him if he wished those policies renewed. I referred to these policies, and he said that he did n’t think they would be renewed, because he thought that Mr. Baker had reduced his stock and would not require the policies, but that if he wanted the insurance he would let me know. I went out of his office to dinner then, and that is the last I heard of it until after the fire. I did n’t say anything in reply to that. I did not understand at that time that Judd intended for me to hold these policies just as I had held them for a day or two before. That was not the impression that was left on my mind at that time. Mr. Hosley was not there. I did not have any conversation with Mr. Hosley, or in bis presence with Mr. Judd, in relation to these policies at any time on. Monday. I was not in the office at three o’clock that afternoon, and don’t remember seeing Mr. Hosley that day. I wrote the word ‘ Hold ’ there to cover ■ those two policies, and I wrote it Saturday night. It has never been erased. The book is only to show the expiration of policies and as a convenience to show how the policies are disposed of. I did not go back from Mr. Judd’s office that day when I understood that this policy was not to be renewed and erase the word Hold,’ because I did n’t do it in any case. Mr. Judd told me Monday that he had not seen Mr. Baker since Saturday, and he said he was reducing his stock and he did not think that he would want the policies, and said it in a way that I did not promise to hold it any longer. He was about to go to his dinner, and he lived but a short distance from Mr. Baker’s shop, and the impression that he gave me was that he would go to see Mr. Baker. He said in so many words not to renew the policies. I asked him if I should renew those policies, and he said, ‘ No.’ ”</p> <p>No further talk with reference to the alleged oral contracts of insurance occurred, and no act was done with respect thereto.</p> <p>On the morning of Friday, March 25, 1892, the plaintiffs’ factory and the stock and machinery therein were burned. The plaintiffs made due proof of loss; and it was admitted at the trial that, if the plaintiffs were entitled to recover at all, they were entitled to recover the full amount claimed.</p> <p>There was no evidence that the plaintiffs, or any one in their behalf, ever paid or tendered any premiums in respect of the alleged contracts of insurance to either of the defendants, or any one representing them, or that any credit was expressly or impliedly given therefor, except as herein stated. The defendants never demanded the premiums. Charles H. Baker testified that it was Judd’s custom to bring his policies to him at his convenience, and that he never paid for them until Judd brought them.</p> <p>The plaintiffs’ factory was about a mile and a half or three quarters from Judd’s place of business. Both were connected by telephones which were working as the majority of telephones were then working in Springfield. Judd lived about a mile and three quarters from his office, and was accustomed to go to and from his home by street railway cars or his own private team. Baker lived in Springfield, about half a mile away from Judd, and there were social relations between them in addition to their business relations.</p> <p>Baker and Judd did not meet between the time of the expiration of the policies and the day of the fire, but Baker was in Springfield during that interval, and was at his place of business daily. Judd was in Springfield during the interval, and at his place of business daily, but at the time was not in good health. There were two clerks, one man and one woman, in Judd’s office.</p> <p>In respect to the extent of the authority of Weaver to act for the defendants, it was admitted that the firm of Ladd Brothers and Company were the agents of each of the defendants for the purpose of issuing written policies of insurance. In addition to that admission, Weaver testified substantially as follows: “ We have been many years in the insurance business. It is our sole business. We have been agents for the Commercial Union for fifteen or twenty years, and for the Westchester three or four years. Our appointment is in writing. We in fact issued all the policies from the defendant companies in Springfield and vicinity, and they are all countersigned by us as agents. I supposed that I had a right to write the word ‘ Hold,’ and bind the company over Sunday. This has been our habit with respect to these companies all the time since we have been their agents. I can’t say whether the companies knew of it. Mr. Brush, who is the general agent of the Commercial Union, knew we were holding policies in that way say for half a day, and that the effect of that was to continue the insurance for that time. There has never been anything said about it between us. When we mark the policies ‘ Hold,’ it is either to go over Sunday or a holiday, where we cannot see the party. I presume there have been cases where we mark them ‘ Hold ’ where it was not Sundays or holidays. As a rule, the time is limited that we hold it.”</p> <p>Hosley testified that there had been dealings between the two offices all the time while he bad been with Judd; and he had never heard of any limitation of Ladd Brothers and Company’s power as agents of any of the companies they represented.</p> <p>The plaintiffs’ policies which expired March 20, 1892, were introduced in evidence. The following is an extract from each policy in suit: “ This .policy shall not be valid unless countersigned by the duly authorized agent of the company at Springfield, Mass. . . . Countersigned this 20th day of March, 1891. Ladd Bros. & Co., Agents.”</p> <p>The plaintiffs were permitted to offer the testimony of Hosley and of two persons experienced in the business of insurance with respect to the custom among insurance agents as to holding insurance binding. Upon that subject Hosley testified that, as to the renewal of old policies, it was customary in Springfield to give the agent notice to hold the policy expiring, that is, to hold the policy in force subject to receiving a notice of renewal until he received a notice to either drop or to renew or write up the policy; that the meaning of the term “ Hold ” was to keep the policy in force; that the insurance was supposed to continue until the agent received a notice to drop or to renew it, no matter how long; that it was not wholly intended to meet an emergency over a Sunday or a holiday where the parties could not meet, but until the agent could see the assured; that it was customary to hold until notice, or until either he was able to see his principal or his principal was able when he saw him to decide what he would have ; and that he had known of cases where insurance was held for a week, and even for a month.</p> <p>Horace V. Freeman, who had been engaged in the insurance business for twenty-five years and was thoroughly familiar with insurance matters, testified that there was a usage or custom among insurance agents to “hold” policies, which meant to hold the insurance binding until a notice was given that it was to be discontinued within a reasonable time, and that it applied to new insurance and renewals, and referred to the company in which the insurance expired.</p> <p>Upon cross-examination, he testified that the usage of holding was a temporary expedient until the policy could be written; that the time within which, under the usage, a policy could be held was limited by its reasonableness under the special circumstances of each case; that, apart from the circumstances, there was no usage as to what a reasonable time was; and that there were such things as written vouchers, so called, in customary use, which were used where the risk was to be continued any length of time, two or three weeks, but were not always used even then.</p> <p>William A. Cone, who had been engaged in the insurance business in Springfield about twenty-four years and was the representative there of nineteen companies, testified that there was a custom to hold insurance binding at the request of the assured, or a broker, in emergency cases; that such an arrangement was not confined to Sundays and holidays; that if a policy was marked “ Hold,” the duration of it would be a reasonable time under the circumstances; that if a policy was marked “ Hold,” and neither party took any further steps in regard to it for two or three or four days, he should say that the company would be holden; and that, under the custom of transacting business, that would not be an unusual time for a policy to be held.</p> <p>On cross-examination, he testified that if a policy expired on Sunday, and was marked “Hold ” and nothing more, whether it meant that a reasonable time was to hold it until the Sunday had passed by depended upon the understanding had with the assured.</p> <p>Upon re-direct examination, he testified that, if there was an understanding as to holding insurance, “ it is a custom to hold it until the parties meet again and speak about it,” if within a day or two, or a week.</p> <p>At the close of the evidence, the defendants requested the following instructions to the jury:</p> <p>“ 1. Upon all the evidence, the plaintiffs are not entitled to recover.</p> <p>“ 2. There is a variance between the evidence and each and every count of the declaration, and the plaintiffs are not entitled to recover thereon.</p> <p>“ 3. There is no evidence which would warrant the jury in finding that Ladd Brothers and Company had authority to make for the defendants, as its agent, the contract of insurance alleged in either count of the declaration, or testified to by the witness Hosley, or relied upon by the plaintiffs.</p> <p>“ 4. Without payment in some form, or offer or tender of payment to the defendants, or their agent, of the consideration for the alleged promise and agreement of the defendants, this action cannot be maintained, and the verdict must be for the defendants.</p> <p>“ 5. If the jury find that the contract made between the plaintiffs and defendants, acting respectively through Judd and Weaver, was that the policies should be “ held,” that is, that the insurance expressed in the policies should be continued in force until Judd could see the plaintiff Charles JET. Baker, and ascertain his wishes, in such case the insurance continued in force, not until Judd in fact saw Baker, but only for such reasonable time as would afford Judd a reasonable opportunity to see Baker, ascertain his wishes, and communicate them to Weaver; and in determining what such reasonable time was, they had the right to consider where he lived, the conveniences or inconveniences of communication, and all other facts.</p> <p>“ 6. As matter of law, upon the facts disclosed in the testimony for the plaintiffs with respect to the places of business of Judd and Baker, the place of their respective residences, the telephonic communication between their places of business, Judd’s habit of driving to and from his office, and the clerks in Judd’s office, the reasonable time given Judd in which to see Baker had expired before the time of the loss, and the insurance was not then in force.”</p> <p>The judge refused to give the first four instructions requested, gave the fifth, and refused to give the sixth ; and to the refusals to rule as requested the defendants excepted.</p> <p>At the time these requests and refusals were made, the declaration consisted of three counts only; but as the jury were about to receive the instructions of the judge, the plaintiffs amended by adding to their declaration the fourth and fifth counts. Thereupon the defendants renewed their requests for instructions ; and, the judge declining to give them, except as above stated or herein given, the defendants excepted. The defendants then, in addition, requested the judge to rule that there was no evidence which would warrant the jury in finding a verdict for the plaintiffs on the first, second, third, or fourth counts of the declaration, respectively. The judge refused so to rule; and the defendants excepted. ■</p> <p>The judge, among other things, instructed the jury as follows:</p> <p>“You are to look at the parties and their situation, what they knew about each other, whether there had been dealings before, and whether the plaintiffs in the cases had had credit with these companies before, because if they had, if the insurance companies had trusted the plaintiffs before, or if they had let the question of premium remain until after the policies had run, or until after they had expired, you would naturally infer that there was something of the sort if nothing was said about it. So that, while the question of premium is an element in the case, it is not necessary that it should have been expressly agreed upon, in order that you should find that there was a contract or agreement for insurance, because from the circumstances you might find that credit was given. . . .</p> <p>“ It is said, in the first place, that a contract was made on the 19th. What was it if it was made ? Was it an agreement that they should hold this property insured for Sunday only ? If it was, if that was all that was done on Saturday, then unless something more was done on Monday, evidently that contract (made on Saturday, if it was limited to Sunday) would not avail the plaintiffs here, because the fire occurred four or five days after. ...</p> <p>“ Now I have stated to you that there may be, so far as I know, a valid oral contract of insurance for a long period. But when you come to deal with an agent I think that I ought to state to you that, in the case of an agent acting for or representing insurance companies, unless some express authority is given which shows some further power or authority, unless some direction is given beyond what the mere fact of acting as agent implies or carries with it, an agent has only the power to make valid oral contracts of insurance for some temporary purpose incidental to the issuing of policies for long periods of time. That may have some bearing upon the question of what this contract was, whether it was an indefinite period, or whether it was a definite one; whether it was until Mr. Judd could see Mr. Baker, or whether it was for only over Sunday, or what it was; because in determining whether-a certain contract is made, it is proper for the jury to look into all the' facts and the circumstances, and the rights and the powers of all the parties who participate in the transaction.</p> <p>“ So'me of the witnesses in this case have instanced two cases in which valid oral contracts are made, as they speak of them, cases of emergency. Those refer to Sundays and holidays. I do not understand that they intended to say, and I think they could hardly say, that those are the only cases in which such temporary valid oral contracts of insurance might be made.</p> <p>“If you come to the conclusion that a contract of insurance was made until Mr. Judd could see Mr. Baker, the question, it seems to me, appears to be whether or not a reasonable time had expired for that before this fire occurred. Because, if there was an agreement to hold valid insurance upon the plaintiffs’ property until something could be done, and no time was mentioned, then it would not be fair to say that that insurance meant for a }ear or anything like it, unless, indeed, it was some occurrence that would require that length of time. Where a party agrees to do a thing and no time is mentioned, then the law gives him a reasonable time. So that if the agreement between the representatives of these defendant companies and Mr. Judd was that they would hold insurance for a reasonable time for Mr. Baker to be consulted, or to determine some question about it, then you come to the question, which in that case would be a very important one, whether or not a reasonable time had expired. If it had, and Mr. Baker or his agent, Mr. Judd, by their default or by his default, or by his neglect, had omitted to do what they ought to do within a reasonable time, and any loss occurred, then it is due to the neglect or default of Mr. Judd or of the plaintiffs, and that loss cannot be visited upon the defendants.</p> <p>“ So that the questions in this case generally, I think, come down to this: Was there an agreement, valid oral agreement, for insurance here ? what were the terms of it agreed upon ? or if one of the terms was not agreed upon, to wit, the length of time for which they should hold it,—was left for something to be done, and that was not agreed upon, — was that thing done within a reasonable time ? ... If the contract was that the defendants were to hold insurance on the plaintiffs’ property valid and good until notice was given by one side to the other, —■ that the risk was to stand no longer,— then it should stand until notice was given by one side to the other.</p> <p>“ The real question is whether, upon all the facts and circumstances in the cases, these defendant companies had a risk on the plaintiffs’ property on the morning of the 25th of March, when the fire destroyed it; and to that all these other questions are subsidiary, and all the evidence in the cases has any importance only as it bears upon that ultimate question in the case.</p> <p>“If the jury find that the contract made between the plaintiffs and the defendants, acting respectively through Judd and Weaver, was that the policies should be held, that is, that the insurance expressed in the policies should be continued in force until Judd could see the plaintiff Charles H. Baker, and ascertain his wishes, in such case the insurance continued in force, not until Judd in fact saw Baker, but only for such reasonable time as would afford Judd a reasonable opportunity to see him and ascertain his wishes, and communicate with Weaver.</p> <p>“In determining, I will add, what such reasonable time was, you have a right to consider where they lived, what the means of communication were between them, and all other facts and circumstances in the case. That I think renders unnecessary two or three other requests which have been made in that respect.”</p> <p>There were no exceptions to the charge.</p> <p>The jury returned a general verdict for the plaintiffs in each case; and the defendants alleged exceptions.</p>

<p>Auditor's Report — Parent and Child — Liability of Step-son to Step-father for Necessaries furnished during Minority — Finding — Estoppel.</p> <p>If the only evidence introduced at the trial of a case is an auditor’s report, the judge, who hears the case without a jury, is not obliged to accept the conclusions of the auditor upon the facts stated in his report, but may consider all the facts in their relation to one another, and draw any proper inferences from them and reach any conclusion that they will warrant.</p> <p>A man is not bound to maintain the children of his wife by a former marriage, but, if he chooses to receive them into his family and to assume the relation of a parent to them in their daily life, the law will not imply a contract on his part to pay them for services which they render him while members of his family, nor a contract on their part to pay him for their maintenance.</p> <p>In an action, upon an account annexed, by a step-father for necessaries alleged to have been furnished to his stepson during the latter’s minority, it appeared that, as an act of charity, the plaintiff had paid the rent of a house for the defendant’s mother and her children for several months before his marriage to her; that after the marriage he and she and her children lived together as one family for nearly seven years; that so long as his business was prosperous, he supported them liberally, “ treating the children as he would had they been his own, furnishing them spending money, and providing for them as a liberal father in his circumstances would provide for his own sons ”; that for nearly three years of the time covered by the account annexed the defendant was earning small sums of money, all of which were paid to his mother and used for the support of the family; that during all the time covered by this account the defendant’s brother was in like manner earning money and paying it to his mother for the same purpose, and the plaintiff's earnings, after he ceased to be prosperous, were contributed to the common fund and put to the same use; that the defendant’s mother also earned some money, and her relatives made contributions for the support of the family; and that no accounts were kept of the amounts received from these different sources. Held, that these facts warranted a finding for the defendant.</p> <p>It seems, that a step-father, by his conduct in procuring the preparation and allowance of a probate account in which his step-son is held liable for his maintenance while a member of his step-father’s family to his mother as guardian, and by the step-son's action in settling this claim, is estopped from recovering against the step-son for the latter’s maintenance during the time covered by the probate account.</p>

Tobt, for personal injuries 'occasioned to the plaintiff while in the employ of the defendant corporation. At the trial in the Superior Court, before Bond, J., the plaintiff offered evidence tending to prove the following facts. He entered the employ of the defendant on July 5,1892.

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. At the trial in the Superior Court, before Richardson, J., it appeared that the plaintiff, when injured, was working upon a machine called a heel-presser, which was operated by pulleys regulated by a break, and to which power was communicated by applying the foot to a treadle. It consisted also of a fixed headpiece and a movable plate on which heels were placed, and by coming in contact with the headpiece the necessary pressure on the heels was obtained.</p> <p>It further appeared that the injuries were caused by the plaintiff having his hands caught between the headpiece and the plate, while removing some heels which stuck to the plate.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Appeal from a decree of the Probate Court, upon a petition for partition of land in Great Barrington held by tenants in common, ordering a sale of the land. Hearing before Barker, J., who reported the case for the determination of the full court. The facts appear in the opinion.</p>

<p>Corporation — Rights of Holder of Preferred Stock — Statute— Guaranty — Action — Equity.</p> <p>A corporation was authorized by statute to issue preferred stock, the holders of which “shall be entitled to all the privileges of other members of said corporation, including the right to vote upon such stock, in person or by proxy, at all corporate meetings.” The statute also provided that “ the provisions of law relative to special stock . . . shall not be held to apply in case of stock issued under this act.” Held, that an owner of such preferred stock must be regarded as a stockholder, and not as a creditor of the corporation.</p> <p>A statute which authorized a corporation to issue preferred stock provided that “ the holders of said preferred stock shall be entitled to dividends upon the same annually, out of net profits, in preference and priority to the holders of any other stock of said corporation, to the amount of such rate per cent thereon, hot exceeding seven per cent, as may be determined by vote of said corporation prior to issue of the same, which rate per cent of priority shall be expressed in the certificates of said preferred stock, and shall also share pro rata with the holders of the common stock in any excess divided in any year above a dividend on the whole stock at said rate per cent, and dividends to the holders of such preferred stock, at the rate per cent fixed upon, shall be paid for each year from the time of its issue, cumulatively, before any dividends shall be paid upon any other stock of said corporation, and, if so voted and expressed in the certificates, may be guaranteed by said corporation ” ; and also that “ the provisions of law ' relative to special stock . . . shall not be held to apply in case of stock issued under this act.” Prior to the issue of the preferred stock, the corporation determined by vote the rate of dividend to be paid.and the form of certificate to be issued, which in its wording followed the statute, including a guaranty of the dividends. Held, that the effect of the guaranty was not to make the dividends payable absolutely, whether there were net profits or not, and without regard to the circumstances or situation of the corporation, but to add to the statutory liability the direct undertaking of the corporation that net profits which, in the fair judgment of the officers of the corporation, were available for dividends, should be devoted first of all, as between the preferred stockholders and the holders of any other stock, to the payment of dividends on preferred stock.</p> <p>A certificate of shares of the preferred stock of a corporation, the issue of which was authorized by statute, provided as follows : “ The holder of the stock represented by this certificate is entitled to dividends thereon annually out of net profits, in preference and priority to the holders of any stock of said corporation except the preferred stock issued under said act, to the amount of six per cent, which rate per cent was determined by vote of said corporation prior to its original issue; and said holder is also entitled to share pro rata with the holders of the common stock in any excess divided in any year above a dividend on the whole stock of said company at said rate of six per cent The holder of the stock represented by this certificate is entitled to dividends upon it at six per cent for each year from the time of its issue, cumulatively, before any dividends shall be paid upon any stock of said corporation except the preferred stock issued under said act, which dividends are guaranteed by said company, a vote of said company to that effect having been passed prior to its original issue.” Held, that, no dividend having been declared by the corporation, a holder of such certificate could not maintain an action at law against the corporation for the amount of the dividends therein mentioned.</p> <p>A corporation, under statutory authority, issued preferred stock, the certificates of which provided that the holders thereof were entitled to dividends thereon annually out of net profits, in preference to the holders - of any other stock of the corporation, to the amount of a certain rate per cent; that they were also entitled to share pro rata with the holders of the common stock in any excess divided in any 3’ear above a dividend on the whole stock of the corporation at the rate so fixed; and that they were entitled further to dividends on the preferred stock at the same rate for each year from the time of its issue, cumulatively, before any dividends should be paid upon any other stock of the corporation, “ which dividends are guaranteed” by the corporation. The capital of the corporation became seriously impaired, and its indebtedness amounted to a large sum, and was payable on demand or on short time. The assets, though appearing to be largely in excess of the indebtedness, would have suffered a very great shrinkage from the valuation put upon them if disposed of to pay debts or to close up the business. During a portion of the time only were there net profits sufficient to warrant the payment of dividends on the preferred stock at the rate named in the certificates. The directors of the corporation refused to declare dividends, in part because they believed that it would endanger the ability of the corporation to pay its debts, and in part because they did not deem it proper so to do on account of the impairment of the capital. Held, that the directors did not appear so plainly to have acted in disregard of the rights of the preferred stockholders as to justify the interference of a court of equity.</p>

<p>Tort, under St. 1887, c. 270, for personal injuries occasioned to the plaintiff while in the defendants’ employ.</p> <p>At the trial in the Superior Court, before Bishop, J., the defendants moved, at the close of the plaintiff’s case, that the jury be directed to find a verdict for the defendants, on the ground that there was not sufficient evidence to sustain a verdict for the plaintiff, which motion was denied. At the close of the defendants’ case they renewed the motion, which was again denied. The jury found for the plaintiff, and the defendants moved that the verdict be set aside for the reasons that it was against the law, and against the evidence and the weight of the evidence.</p> <p>At the hearing on this motion the records of the Superior Court in this case were produced by the plaintiff, from which it appeared that the verdict found by the jury in this trial was the third verdict found for the plaintiff in this action, and that the preceding verdicts had been set aside upon like motions. The plaintiff asked the court to rule “ that under these circumstances it had no authority to set the verdict aside, either on the ground that it was against the evidence or the weight of evidence, and that it would be an abuse of discretion on the part of the court to set it aside on either of those grounds,”</p> <p>The judge declined to give the ruling requested, and directed that the verdict be set aside upon the ground that it was against the evidence and the weight of the evidence; and the plaintiff alleged exceptions.</p>

<p>- Appeal from a decree of the Probate Court, dismissing a petition for the conveyance, by the executors of the will of ■William H. Phillips, of certain letters patent to a trustee. The case was heard by Knowlton, J., and reserved for the consideration of the full court; such decree to be entered as law and justice might require. The facts appear in the opinion.</p>

Complaint, for unlawfully keeping for sale intoxicating liquors with intent to sell the same unlawfully, on January 14, 1894. At the trial in the Superior Court, before Lilley, J., the jury returned a verdict of guilty; and the defendant alleged exceptions.

<p>Indictment, in two counts, charging the defendant with unlawfully and maliciously, on September 14 and 19, 1893, threatening one Playdon and one Taylor with the crime of having in their possession with intent to sell the same milk not of good standard quality, with intent to extort money from them.</p> <p>At the trial in the Superior Court, before Lilley, J., it appeared that the defendant was duly appointed milk inspector of the city of Lawrence for the year 1893, and there was evidence to sustain the allegations of the indictment, which evidence consisted of alleged conversations between the defendant and Play-don and his two sons, and between the defendant and Taylor in the presence of Taylor’s son.</p> <p>The government offered in evidence two letters, one from B. F. Davenport, a chemist, to the defendant, which was dated Boston, February 20, 1893, and was as follows:</p> <p>“ Your milk samples were not received by me until this morning. We close Saturday at 3 p. m., or as soon thereafter as we can finish the particular work in hand. Hence I cannot mail you my report till the next morning. I shall drop the express a note to call for your return empty cans and box.</p> <p>“ As you see by my report, two of your samples were all right, and the other two, although I have not any doubt that they were watered a little, yet they were so much above twelve per cent solids that I should advise you not to enter them as your first case in court, but with the advice and consent of your mayor to put them on probation upon their payment of all your costs. I accordingly send you bills made out for each of them.”</p> <p>The other letter was from the defendant to Davenport, dated Lawrence, March 21,1893, and was as follows:</p> <p>“ Enclosed find a sample of Oleo, which I wish you to analyze and report as soon as possible, belonging to one J. J. Caveney.</p> <p>“ In regard to those two first samples (of Feb. 20) of milk, Mayor (Alvin) Mack says it would not be advisable to ask those men to pay the charges, and he desires to know if yon will not call those four samples ten dollars, and let your bill go in the first of next month.</p> <p>“ (Paid ten dollars April 13.) ”</p> <p>The defendant objected to the admission of the letters, neither of which was referred to in any óf the alleged conversations. The judge admitted the letters in evidence only for the purpose of showing the intent with which the defendant made the alleged threats.</p> <p>The jury returned a verdict of guilty ; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by an alleged defect in Union Street in the defendant city. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The accident happéned on July 10, 1893. Union Street runs north and south across the Merrimac River, and Essex Street runs from Union Street at right angles, west. Both streets are paved and have sidewalks upon both sides, and are principal streets of Lawrence. A proper flagstone crossing level with the street is laid across Union Street in continuation of the north sidewalk of Essex Street, There is no street crossing over Union Street in continuation of the south sidewalk of Essex Street.</p> <p>The Lowell, Lawrence, and Haverhill Electric Railway comes down Essex Street, and, turning into Union Street, runs south five or six feet from the curbstone of the east sidewalk of Union Street. There is an arc light, the post of which stands at the point where the curbstone of the north sidewalk of Essex Street meets the curbstone of the west sidewalk of Union Street. The light hangs diagonally from this post into the street. There is a row of maple trees on each side of Union Street, standing in the line of the curbstone.</p> <p>During May and the early part of June, 1893, the railway corporation had been distributing along its routes in Methuen, Lawrence, Andover, and North Andover, new rails for rebuilding its tracks. These rails were about thirty feet long, eight inches high, and four inches wide. Four of these rails had been piled in the gutter next to the curbstone of the east sidewalk of Union Street, between and resting against the trunks of two of the trees counting from Essex Street, and from fifty to seventy-five feet south of that street.</p> <p>The plaintiff, who was about sixty years of age, had been to South Lawrence, and at a little past ten o’clock in the evening came north by Union Street on the east sidewalk to the point where this pile of rails lay. There were some people upon the sidewalk, and he started to leave that sidewalk at a point from fifty to seventy-five feet south from Essex Street, and cross to the end of the south sidewalk on Essex Street, at an angle. On leaving the sidewalk, he stumbled over the pile of rails, and received the injuries complained of.</p> <p>The plaintiff testified that he found the crowd on the east side of Union Street to be very great, and there did not seem to be many over on the other side, and he proposed to a friend who was with him tbat they had better go across there, and he stepped on the street and off the curb, perhaps a step and a half, when he caught his foot on a pile of rails and fell over them ; and that, as he recovered himself, he found that the obstacle which threw him over was the rails which the street railway company had placed there.</p> <p>On cross-examination, he testified that he did not see the rails until he fell; that he did not see anything at all; that he put his left foot down first over the curb, and his right foot caught on the rails, that he did not think of looking, but was going across the road, thinking it was perfectly clear; and that he did not look at all to see what was before him, because he did not think there was anything.</p> <p>It was in dispute whether the electric light shone upon the rails so that they were plainly visible, or whether it was dark at that point in consequence of the shade of the trees. The only witnesses present at the accident who testified on this point were the plaintiff and one Addison.</p> <p>Addison, who was with the plaintiff when he fell, testified that the rails were not to be seen by a person walking along there, because it was too dark; that one could see nothing as he walked along; that the branches of the trees overshadowed the place; that he had difficulty in seeing the rails when he turned back to look at them, and had hard work to find them ; and that he could not see his way, nor what he was stepping into.</p> <p>There was no other evidence except what is above stated upon the question of the plaintiff’s care.</p> <p>At the close of all the evidence, the defendant asked the judge to rule that, upon this evidence, the plaintiff had not sustained the burden of proving that he was in the exercise of due care, and was not entitled to go to the jury. The judge refused so to rule; and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tout, by the administratrix of the estate of John Brady, for causing his death. Trial in the Superior Court, without a jury, before Bráley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to show that Brady, the plaintiff’s intestate, lived in Stoughton; and that, on the day prior to the accident, he had been to Campello, a station near Brock-ton, for the purpose of obtaining work, and had obtained employment there.</p> <p>Upon the morning of December 10,1892, Brady took a train on the defendant’s railroad at Stoughton. He entered the car next the engine, which had smoking and baggage compartments, the smoking compartment being next the engine. Soon after leaving the station at Stoughton, Brady, who had been standing in the baggage compartment, fell to the floor of the car. He was picked up by the baggage-master and put in a chair by the open door of the baggage compartment. He remarked that it was cold. The baggage-master shut the door, and assisted him into the smoking compartment of the car by putting his hands under Brady’s arms. He seemed unfit to walk, and his feet dragged. In ■ the smoking compartment he was placed in the corner of a seat next the window, leaning against the window, and two or three times during the run of the train the baggage-master and conductor went and spoke to him, between Stoughton and Campello, leaning over him as they did so. A passenger on the train from Stoughton to Montello, who sat near him on the opposite side of the aisle, noticed that he turned his head slightly to the window, and then turned it back to a forward position, but noticed no other movement. The same passenger, after the train reached Campello, went into the seat behind Brady, and, leaning forward, noticed that his eyes seemed glassy.</p> <p>When the train reached Montello station the engine stopped at the water standard to take water, and all the passengers alighted. The platform at that station does not extend north of the water standard, and to the north there is only the ordinary gravel of a railroad road-bed. The only means provided by the defendant for passengers to leave its premises at Montello was to go south of the station to the street which crosses the track near that point, or to go through a gap in a fence west of the station. All the passengers who left the train at Montello on the morning of the accident walked south and left the station premises by one or the other of the two ways above described.</p> <p>The train stopped at Montello station about two minutes, and then started north and ran up under a bridge for the purpose of running down on another track to the eastward.</p> <p>A switchman in the employ of the defendant testified that he went from the tank-house after the train, and got upon the' rear platform of the rear car with the conductor of the train at Montello station, ■ and rode upon it up to the bridge, and then alighted and walked back; that he then first saw Brady lying beside the north-bound track about thirty-five to forty feet north of the water standard; and that when he saw him some one was assisting him to his feet. No other train passed up the north-bound track after the Stoughton train before Brady was picked up.</p> <p>It was further in evidence that Brady, when picked up beside the track in the place above described, had his foot crushed and head bloody; that the injury infiicte.d was adequate to cause death; and that death did ensue within about six hours.</p> <p>The trains upon the defendant railroad run upon the left-hand track. At Montello station, from a position at a point thirty-five to forty feet north of the water standard, there is no obstruction to prevent a person looking north or south along the tracks, and nothing to prevent one there seeing an approaching train.</p> <p>This was all the evidence introduced by the plaintiff bearing upon the question of liability.</p> <p>The defendant offered no evidence, and asked the judge to rule that the plaintiff could not recover. The judge found as follows : “ Upon this testimony I must find that there has been no unfitness or gross negligence or carelessness shown on the, part of the defendant or its servants or agents while carrying the deceased as a passenger from the place w'here he got in to the place of his destination. I find no proof from which I can draw the inference that there has been any carelessness on the part of the defendant corporation or its servants.” The plaintiff alleged exceptions.</p>

<p>Alienation of Wife’s Affection — Statute of Limitations — Fraudulent Concealment of Cause of Action — Evidence — Confession by Wife to Husband.</p> <p>A husband’s cause of action for the alienation of his wife’s affection accrues at the time when he discovers her in the act of adultery; and an action therefor against her paramour, brought more than six years after such discovery, is barred by the statute of limitations, Pub. Sts. c. 197, § 1, cl. 4.</p> <p>The fact that a wife, although detected by her husband in the act of adultery, denied, by agreement with her paramour, their guilty relations until the expiration of twelve years, when she confessed them, is not a fraudulent concealment of the husband’s cause of action for the alienation of his wife’s affection, within Pub. Sts. c. 197, § 14.</p> <p>A cause of action cannot be said to be concealed from one who has a personal knowledge of the facts which create it, although he may have no other means of establishing his case than by his own testimony.</p> <p>A confession in writing by a wife to her husband, shown by her to no other person, of her guilty relations with another, is not competent evidence against the latter, in an action by the husband for the alienation of his wife’s affection.</p>

<p>Contract, for breach of promise of marriage. At the trial in this court, before Barker, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Eminent Domain— Water Rights—Damages — Evidence.</p> <p>The existence of a dam without a mill on land suitable for a mill site does not give the owner of the land a right, under the Pub. Sts. c. 190, to flow lands of upper riparian owners, but, as the land may have a greater market value on that account, it is proper in estimating the damages occasioned by the taking thereof by the right of eminent domain to take into consideration its value as a mill site, not only in connection with the water power then existing, but also in connection with the right which might thereafter be acquired by the flooding of the lands of upper riparian owners, the limit to the inquiry as to the possible future use of the land being left to some extent to the discretion of the presiding judge.</p> <p>At the trial of a petition for the assessment of damages occasioned to the owner of a dam and of land suitable for a mill site by the diversion of water from the stream above the dam, and by the laying of pipes in the land below the dam, it appeared that the petitioner could not raise a head of water of any practical value, or obtain a reservoir as high as the dam, except by flowing lands belonging to others. The jury were instructed, in substance, that in estimating damages they were to allow the petitioner nothing on account of the dam; that they were to take into account the facts that the petitioner could flow back only about eighty rods on his"own land, by doing which he could raise a head of no practical value ; that by raising a head of water of practical use lands belonging to others-would be flowed, which he could not do without paying them adequate damages therefor; that damages were not to be awarded in reference to the particular situation or circumstances or plans of the owner; but that they might award him such damages as he sustained by the taking of such water and rights as the respondent had been shown by the evidence to have taken, and such damages to his land as it had suffered by the laying of pipes in it, in view of such uses as the same, considered as property, could be profitably applied to, as shown by the evidence. Held, that the instructions were correct. Held, also, that the refusal to rule that the petitioner’s water power “consisted in the difference of level between the surface where the brook first touches and where it leaves his land ” gave the respondent no ground of exception.</p> <p>At the trial of a petition for the assessment of damages occasioned to the owner of a dam and of land suitable for a mill site by the diversion of water from a stream above the dam, it appeared that the petitioner could not raise a head of water of any practical value or obtain a reservoir as high as the dam except by flowing land belonging to others, and evidence was admitted on the question of the value of the land as a mill site and of the uses which could be made of a reservoir so obtained. Held, that evidence offered by the respondent as to the value of the land of upper riparian owners which would be flowed by the petitioner’s dam if a full reservoir were maintained was improperly excluded.</p>

<p>Taxation of Costs — Storage of Goods attached — Officer’s Fees — Case stated.</p> <p>Upon an appeal from the taxation of costs, the judgment of the Superior Court disallowing an item for the storage of goods attached cannot be revised by this court where no facts upon which the correctness of the judgment depends and no ruling of law appear upon the record.</p> <p>A statement of facts agreed to by the counsel of the parties and filed in the Superior Court after a hearing therein, accompanied by a stenographic report of the testimony taken at the hearing, cannot be considered by this court if it does not appear by the record to have been passed on in the Superior Court.</p> <p>An appeal from the judgment of the Superior Court brings before this court only matters of law apparent on the record.</p>

<p>Indictment — Insufficient Allegation—“ In said County ” — Motion to Quash.</p> <p>An indictment which begins with the words, “ Commonwealth of Massachusetts, Worcester ss.,” and then describes the defendant as of Buckland in the county of Franklin, and alleges the offence to have been committed “ at Westminster, in said county,” does not allege with sufficient certainty that the offence charged was committed within the county of Worcester, and a motion to quash the same should be granted.</p>

<p>Mechanic's Lien — Repeal by Implication — Filing of Statement in Registry of Deeds—Overcharges for Labor—Evidence— Question for Presiding Justice.</p> <p>Section 8 of Pub. Sts. c. 191, which provides in the case of liens on buildings and land that certain inaccuracies in the statement to be filed in the registry of deeds under § 6 of the statute shall not invalidate the lien unless the person filing it has wilfully and knowingly claimed more than is his due, is not repealed by the St. of 1892, c. 191, which amends said § 6 to the effect that no statement required by it shall be invalid for certain inaccuracies provided there was no intention to mislead and the parties entitled to notice were not in fact misled thereby.</p> <p>If, at the trial without a jury of a petition to establish a mechanic’s lien, there is evidence of overcharges for labor in the statement filed in the registry of deeds, and also evidence in explanation of such overcharges, it is for the judge to say whether, on all the evidence, the improper charges were made ignorantly, or whether the petitioner wilfully and knowingly claimed more than his due; and the appearance and manner of the petitioner in testifying may be taken into account.</p>

<p>Personal Injuries — Release of Claim — Avoidance of Release — Ratification — Payment back of Money accepted in Satisfaction.</p> <p>A person who accepts a certain sum in satisfaction of a claim for personal injuries, and executes a release therefor under such circumstances as but for the acceptance of the money would entitle him to avoid the same, cannot thereafter, unless fraudulently induced to believe that the money received by him was payment for a part only of his cause of action, avoid the release and maintain an action without first tendering back the sum received.</p>

<p>Petition, dated June, 1893, under St. 1893, c. 340, to compel the respondents to bring an action to try their alleged title to several parcels of land in Abington.</p> <p>Trial before Allen, J., who declined to grant the prayer of the petition, and reported the case for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Perjury — Evidence — Statute — Husband and Wife — Presumption of Coercion.</p> <p>Where a wife at the trial of a criminal case is a witness under the Pub. Sts. c. 169, § 18," for her husband, who is present in the prisoner’s dock, and she commits perjury, there is no presumption that her testimony was given under the coercion of her husband, and she is not exempt from the penalties imposed for the offence.</p>

<p>Equitable Easement — Deed — Restrictions — Assignment of Possibility of Reverter after Breach of Condition Subsequent.</p> <p>The owner of a tract of land divided it into lots, each of which he conveyed subject to the conditions and restrictions that “ the grantee shall within one year from the date hereof cause to be erected on the premises granted a dwelling-house to be exclusively used as a residence for a private family; and no other buildings except the necessary outbuildings requisite and to be used exclusively for domestic purposes shall ever be erected thereon.” ■ Held, that these conditions and restrictions were inserted for the benefit of purchasers who took deeds subject thereto, and that they could be enforced in equity by and against such purchasers and their grantees. .</p> <p>The right of entry on breach of condition subsequent cannot be assigned to a stranger, and if conditions and restrictions in deeds are for the benefit of purchasers and their grantees, they cannot be released to a subsequent purchaser or his grantee without the assent of the other purchasers or their grantees for whose benefit the restrictions.were imposed.</p>

Petition to the Probate Court, by the executor of the will of Sarah B. Horton, the widow of Danforth Horton, for the construction of the will. The record of the Probate Court, transmitted to this court on appeal, consisted of the petition, the citation, the decree, and the notice of appeal.

<p>Probate Appeal— Hearing without the Venue — Insolvent Estate— Creditor.</p> <p>A single justice of this court sitting in equity may order a probate appeal to be heard in a county other than that in which it is brought.</p> <p>The estate of a deceased person was represented insolvent, and commissioners were appointed who allowed the claim of a creditor, and the administrator appealed to this court, where, by a decree of a single justice, from which no appeal was taken, the claim was established, and the cause was remanded to the Probate Court in which a copy of the decree was filed. Subsequently one of the original commissioners resigned and another one was appointed in his place, and further proceedings were had before the commissioners wherein other claims were passed upon by them. Held, that the later proceedings of the com- . missioners did not affect the validity of the decree of this court, and that the creditor whose claim was thereby established was entitled to prosecute a petition to the Probate Court to compel the administrator to file a bond with sufficient sureties, and to collect certain assets of the estate consisting of property alleged to have been conveyed by the intestate in his lifetime in fraud of his creditors.</p>

<p>Savings-bank Book — Title to Deposit — Instructions — Claimant — Gift.</p> <p>In an action to recover money deposited by the plaintiff with the defendant savings bank the exceptions stated that “ there was no evidence that the claimant ever gave the book to the plaintiff, except when the claimant ordered the plaintiff to make withdrawals or deposits.” The plaintiff requested the judge to rule that it was immaterial to whom the money originally belonged; if the claimant delivered the book to the plaintiff and permitted him to exercise control over the same, the gift was complete, and the claimant could not come in and claim the funds. Held, that the ruling was rightly refused.</p> <p>In an action to recover money deposited by the plaintiff with the defendant savings bank, it appeared that the claimant, who intervened under the St. of 1894, c. 317, § 33, deposited the money and took out the book in the name of the plaintiff. The plaintiff requested the judge to rule that, if the book was delivered to the plaintiff without the intention on the part of the claimant of parting with his title to the funds, the verdict must still be for the plaintiff. Held, that the ruling was rightly refused, and that the ruling that it was for the jury to say, upon the evidence, whether the claimant had ever made a gift of the money to the plaintiff, as the plaintiff contended, or whether it was as the claimant contended, was correct.</p>

<p>Complaint, charging the defendant with the alleged illegal sale of intoxicating liquors to one Pierre A. Maguant, at Lynn, on January 27, 1894.</p> <p>At the trial in the Superior Court, before Lilley, J., one Murchison, a witness for the Commonwealth, among other things, testified that the defendant sold a glass of whiskey to Peter Maguant, and in the course of a conversation between the witness, this defendant, and Maguant, Maguant was called Peter by the defendant, and Maguant responded to that name. Upon cross-examination the witness said he had worked in the same shop with Maguant, and had always heard him called Peter, and had never heard him called by the name of Pierre.</p> <p>One Wells and one McKenney, witnesses called by the Commonwealth, testified that the name of Maguant was Pierre A. Maguant. Upon cross-examination they testified that they had never heard any one call him by that name, but that Maguant at one time told them his name was Pierre A. Maguant, and that was the only knowledge they had of what the name of Maguant was.</p> <p>The defendant requested the judge to instruct the jury to return a verdict of not guilty, by reason of a variance, that there was no competent or sufficient evidence to prove that the name of the alleged purchaser of liquor was Pierre A. Maguant, but that the only competent evidence introduced upon the question of the name was that of Murchison, who testified positively that his name was Peter; and that he was commonly known by the name of Peter.</p> <p>The judge refused so to rule, but, with appropriate instructions on the subject, left it to the jury to determine whether the name of the alleged purchaser was Pierre A. Maguant or not; and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Bill in equity, filed December 14,1893, by one of the executors under the will of John Knight, against Edward S. Knight, his co-executor, and others, all children of the testator, to obtain the instructions of the court as to the construction of the fourth article of the will. The case was heard by Barker, J., and reported for the consideration of the full court on the bill, the answers of the several defendants and certain agreed facts, and was as follows.

<p> Servipe of Notice of Filing Exceptions. </p> <p>Under the 31st Hule of the Superior Court a notice of the filing of exceptions left at the office of the attorney of the adverse party in his absence is not duly served unless he actually receives it.</p>

<p>Personal Injuries — Evidence — Remoteness — Other like Facts.</p> <p>On the question whether the illness of the plaintiff was caused by lead poisoning from inhaling dust containing white lead coming from the rubber thread on which he worked in the defendant’s mill, evidence is competent that other persons, some of whom worked at the same time in the same room with the plaintiff under similar conditions, and some of whom worked there under similar conditions a few months before and a few months after him, were ill from lead poisoning; that a former employee of the mill, after working there for three and a half or four months, a short time before the plaintiff was there, was ill and had the same symptoms; and that a physician, at a time which he could not fix exactly, had a number of like cases in patients coming from the same room of the defendant’s mill.</p>

<p> Assault with Intent to commit Rape. </p> <p>A defendant can tie convicted on an indictment charging an assault with intent to commit rape, if the evidence satisfies the jury that his crime was rape.</p>

<p>Personal Injuries — Conduct leading Another into Trap—Negligence — Principal and Agent.</p> <p>In an action for personal injuries occasioned by an explosion in the basement of a building, it appeared that the building had been conveyed by A. to the defendant as trustee for A.’s creditors; that the defendant, by his agent B., had made a written lease of the building to C., who had made an agreement for a sublease of the basement to D., to take effect on a certain day; that in the basement were engines, boilers in a cement-lined pit, and in the boilers was some bi-sulphide of carbon; that, at the time of the lease to C., B. agreed to remove everything in the basement, except a certain engine and a shaft, and retained a key to the basement; and that later B. asked that certain things might remain there, and C. assented if D. did not object. There was evidence that, before the sublease took effect, D. and the plaintiff, who was interested in D.’s business, went to B., just outside the basement, and asked him what things he wanted to have remain; and that B. answered, “ Come in and I will show you.” It further appeared that before this time B. had removed some of the things, and had drawn off some of the bisulphide of carbon, but in the process some of it had been spilled upon the'bottom of the pit; and that the parties went into the basement, and an explosion happened, which according to the plaintiff’s testimony was caused by his accidentally knocking a piece of iron into the pit and making a spark. The plaintiff and D. denied that they had been told by any one of the presence of the explosive. Held, that there was evidence sufficient to be submitted to the jury upon the question whether B., in his alleged invitation to the plaintiff, was acting on behalf of the defendant; and within the scope of his authority.</p>

<p>Loss of Life — Railroad — Negligence — Evidence.</p> <p>In an action against a railroad corporation, under the employers’ liability act, St. 1887, c. 270, for causing the death of C., it appeared that he was run down and killed by the defendant’s engine while standing on the main track of the railroad with his back to the approaching engine, working at a coal car which was on the same track and which was run into; and that the switch had been set so as to send the engine on .to a loop track, and the head brakeman changed the switch with the knowledge of the engineer. The defendant put in evidence that C. had orders to remain at the switch until the train had gone on its way by the loop track, and that he had told the engineer that he would do so. This evidence was disputed; and, in corroboration of it, evidence was offered that until the accident 0. always had been there. Held, that the evidence so offered should have been admitted.</p> <p>In an action for causing the death of C., if a witness for the defendant, having testified on direct examination to a conversation with C. after the accident, on cross-examination concerning it testifies to a similar conversation at a later date, the plaintiff may contradict the later conversation in rebuttal.</p>

<p>Bill in equity, filed in the Superior Court on September 5, 1893, for specific performance of a covenant for renewal contained in a lease of certain premises in Haverhill. The case was submitted upon agreed facts, in substance as follows.</p> <p>Hannah Driscoll, being the owner in fee of certain land in Haverhill, upon which was a building, the lower story of which was used for shops and the upper stories for dwelling purposes, and occupied by several different tenants, executed and delivered, on August 20, 1888, a lease of the lower story thereof to the plaintiff, containing, after the habendum, (which was for the term of five years from September 1,1888,) the following clause: And said lessee is to have the privilege of renewing this lease upon the same terms for the further term of five years.”</p> <p>The plaintiff entered under his lease, and continued to occupy the demised premises down to the filing of this bill, paying Driscoll the rent reserved in the lease as long as she continued to be the owner of the reversion. The land, with the building thereon, was conveyed by Driscoll to the defendant and William H. Floyd, by deed dated December 9, 1891, for a valuable consideration. The deed was duly recorded, and contained full covenants against all encumbrances, except certain mortgages not material to be stated. At the times of the negotiation for the purchase and of the conveyance to them, the defendant and Floyd knew that the plaintiff was in possession of the demised premises, and was occupying them as a tenant of Driscoll for the purposes of a drug store, but they were informed by Driscoll, and believed, that the plaintiff and the other tenants had no written leases. The plaintiff did not inform, the defendant or Floyd of his lease, and neither the defendant nor Floyd made any inquiry of the plaintiff as to the terms of his tenancy. Before the conveyance was made, the defendant procured a search of the title to be made by a competent conveyancer, who pronounced the title to be good.</p> <p>Two months after the conveyance by Driscoll to them, the defendant and Floyd learned for the first time that the plaintiff had a written lease of the premises occupied by him, and were informed of the terms thereof. The plaintiff continued until the expiration of the lease to pay to the defendant and Floyd the amount of rent reserved in the lease at the times therein appointed for its payment, claiming to pay the same under and by virtue of the terms of the lease. The defendant and Floyd accepted the amount of the rent paid by the plaintiff, protesting, however, that it was not received under the provisions of the lease, and that by receiving the same they did not intend in any way to confirm or recognize the lease. It is admitted that they have not ratified the lease, nor admitted it to be valid against them.</p> <p>Prior to the bringing of this bill, Floyd conveyed to the defendant his interest in the property so conveyed to them by Driscoll, and the defendant is now the sole owner of the fee. The plaintiff duly gave written notice to the defendant of his intention to avail himself of the privilege of renewal contained in the lease, and demanded a lease for the additional term of five years. The defendant has refused to renew the lease, has given the plaintiff notice to quit the premises, and has begun proceedings at law to recover the premises and to eject the plaintiff therefrom.</p> <p>The plaintiff, upon a complaint charging him with maintaining a nuisance by using the premises demised in the lease for the illegal sale and keeping of intoxicating liquor, between April 17, 1890, and June 1,1890, was duly found guilty and sentenced at the October term, 1890, of the Superior Court. Driscoll, after judgment upon the complaint, continued to receive the rent from the plaintiff at the times appointed in the lease for its payment, and never took any proceedings to avoid the lease. Neither the defendant nor Floyd has taken any proceedings to avoid the lease by reason of such conviction, except by an allegation in respect thereto in the answer in this cause.</p> <p>The lease was never recorded in the registry of deeds.</p> <p>The case was reserved by Dunbar, J., upon the pleadings and agreed facts, for the consideration of this court.</p>

<p>Fire Insurance — Power of Special Agent to vary Condition of Policy — Oral Contract of Insurance.</p> <p>An agent of an insurance company, ,to whom the company had intrusted blank policies of the Massachusetts standard form, signed by the president and secretary, with authority to countersign and issue such policies, “ and by writing indorsed thereon to renew any of such policies, or to vary the risk therein,” and providing that all of his powers are to be exercised subject to the rules and regulations of the company, “ and, when provision is made therefor in such policy in the manner provided therein,” has no authority to give an oral assent to a removal of property insured by a policy containing a condition requiring the written or printed assent of the company to such removal.</p> <p>A count upon an oral contract to insure property in a place to which it has been removed during the existence of a policy of insurance thereon is not sustained by proof of an agreement to transfer the policy so as to cover the property in the new place.</p>

<p>Personal Injuries — Defective Highway — Evidence.</p> <p>In an action against a city for personal injuries occasioned by falling upon the sidewalk of a street, if the plaintiff contends, and the defendant denies, that at the time of the accident there were ridges of ice upon the walk and depressions in the walk of such a nature as to cause water flowing thereon from the adjoining land to accumulate in such depressions and freeze, evidence that at various times during the same season and before the accident water had been seen coming from the adjoining land, and ridges of ice had been formed upon the walk, and that upon many occasions during the three months before the accident, when the sun shone or it was thawing weather, water ran from the adjoining land upon the walk and froze there, is competent to show that there was such a condition of things that ice was liable to form on the sidewalk.</p>

<p>Deed — Boundary — Ambiguity.</p> <p>If a deed fixes exactly the location of all the lines and boundaries of the land conveyed, its construction cannot be controlled or affected by paroi evidence.</p> <p>A deed described the land conveyed as beginning at a point in the line of a private way, which ran westerly from 0. Street, at the southwest corner of A.’s lot, thence northerly in a line parallel with C. Street and by the land of A. a certain number of feet to an angle, thence northwesterly “ in line of a stone wall ” and by land of B. a certain number of feet, “ more or less, to a point,” thence southerly “ in a line parallel with said G. Street ” a certain number of feet, more or less, to the line of the private way, and thence by the way “ sixty feet ” to the place of beginning. A survey showed the length of two of the lines other than that on the private way to be somewhat less than the distance stated in the deed, which was qualified in each instance by the words “ more or less.” Held, that this part of the description was controlled by the location of the lines and monuments; and that there was no legal ambiguity in the deed.</p>

<p>Money Lent — Exceptions — Trial — Law and Fact.</p> <p>No exception lies to the refusal of the judge presiding at a trial to rule, at the close of the plaintiff’s evidence, that the plaintiff is not entitled to recover, if the defendant does not rest his case upon such evidence.</p> <p>In an action for money lent, the plaintiff’s evidence tended to show that he gave the defendant a bank check for the sum claimed to enable the latter to pay for land which he had bought; and the defendant’s evidence tended to show that the plaintiff owed him the whole amount of the check for advances made by him to the plaintiff at different times. There was also evidence tending to show that in proceedings brought in another court the defendant had testified that, at a date later than that of the last alleged advance to the plaintiff, the latter did not owe him anything; that the defendant used the money obtained by him upon the check in payment for land which he had bought; and that the plaintiff expected when he gave the check to have an interest in the land. Held, that the case was for the jury upon all the evidence.</p>

<p>Indictment not Bad for Duplicity or Repugnancy— Acquittal of Part of Charge and Conviction of the Residue.</p> <p>An indictment which charges an assault with a dangerous weapon, and, by way o further aggravation, that it was with an intent to “ kill and murder,” is not ha. for duplicity or repugnancy; and the defendant may be acquitted of a part oi the charge and convicted of the residue.</p>

<p>Municipal Ordinance— Offer of Proof.</p> <p>An ordinance of the city of Boston which provides that “no person shall carry or cause to be carried on any vehicle in any street a load the weight whereof exceeds three tons, unless such load consists of an article which cannot be divided,” is reasonable, constitutional, and valid, under Pub. Sts. c. 53, § 15 ; and an offer of proof which does not take the case out of the field of regulation by the Legislature, or by the mayor and aldermen as a local tribunal acting under the authority of the Legislature, is rightly refused.</p>

<p>Indictment, for receiving stolen goods on January 29, 1894, at Boston. . At the trial in the Superior Court, before Bond, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.</p>

Indictment, in three counts, for rape on Lizzie Berkman, Sarah Marcus, and Rosa Finklestein, on April 19, 1894; said Lizzie,. Sarah, and Rosa each being alleged to be under sixteen years of age. At the trial in the Superior Court, before Bond, J., the jury returned a verdict of assault with intent to rape Lizzie Berkman and Sarah Marcus, and not guilty on the count charging a rape on Rosa Finklestein. The defendant alleged exceptions, in substance as follows.

Complaint, under St. 1891, c. 412, § 4, to the East Boston District Court, for delivering from a certain vehicle, upon a public street in Boston, oleomargarine made in semblance of pure butter, and not having on both sides of said vehicle a placard in uncondensed Gothic letters not less than three inches in length, the words, “ Licensed to sell oleomargarine.” At the trial in the Superior Court, before Richardson, J., the jury returned a verdict of guilty, and the defendant…

Indictment, in four counts, for embezzlement. At the trial in the Superior Court, before Mason, C. J¡, the jury returned a verdict of guilty upon all the counts ; and the defendant alleged exceptions, the nature of which sufficiently appears in the opinion.

<p>Complaint to the Municipal Court of the city of Boston, charging that the defendant, on June 10, 1894, “did make a public address ” upon certain public grounds of Boston called the “ Common,” without a permit from the mayor of the city, and contrary to the Revised Ordinances thereof. Section 66 of chapter 43 of the “Revised Ordinances of the City of Boston, 1892,” is' as follows: “ No person shall, in or upon any of the public grounds, make any public address, discharge any cannon or firearm, expose for sale any goods, wares, or merchandise, erect or maintain any booth, stand, tent, or apparatus for purposes of public amusement or show, except in accordance with a permit from the mayor.”</p> <p>At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict of guilty, and the defendant alleged exceptions, the nature of which sufficiently appears in the opinion.</p>

<p>Indictment, for two distinct offences of breaking and entering a building with intent to commit larceny, and committing larceny therein. At the trial in the Superior Court, before Bishop, J., the accused was defended by counsel; the jury returned a verdict of guilty on both counts; and the defendant alleged exceptions.</p>

Complaint to the District Court of Central Middlesex, charging the defendant, in three counts, with selling liquor to a man whose name was to the complainant unknown.

<p>Cruelty to Animals — Sufficient Averment in an Indictment — Rejection of Allegation as Surplusage.</p> <p>An averment in an indictment, after the statement of the formal parts and a period of time, that the defendant E. “ was the person having the charge and custody of a certain animal, to wit, a horse, and it was then and during the whole time aforesaid the duty of the said E. to provide the said horse with proper shelter and protection from the weather; and that the said E. did then and during the whole time aforesaid there unnecessarily and cruelly fail to provide the said horse with proper shelter and protection from the weather,” etc., clearly and sufficiently describes the offence in the language of Pub. Sts. c. 207, § 52; and as the insértion of the words “ and cruelly ” adds an immaterial allegation, which is not a part of the description of anything necessary to be mentioned in the complaint, the allegation may be rejected as surplusage.</p>

Complaint, for bringing intoxicating liquors from the town of Acton into the town of Maynard, on July 7, 1893, the defendants having reasonable cause to believe that the same were intended for sale in Maynard in violation of law. At the trial in the Superior Court, before Lilley, J., the jury returned a verdict of guilty against both defendants; and they alleged exceptions.

<p>Statute — Oleomargarine colored to look like Butter.</p> <p>The St. 1891, c. 58, § 1, entitled “An Act to prevent deception in the manufacture and sale of imitation butter,” forbids the exposing for sale of oleomargarine colored to look like butter, and it is immaterial whether the particular purchaser was advised of its real character or not.</p>

Indictment for manslaughter. Trial in the Superior Court, before Sheldon, J., who, after a verdict of guilty, reported the case for the determination of this court, in substance as follows. The case was given to the jury Friday afternoon, June 15 ; and the jury had not agreed at the time of adjournment for the day.

<p>Contract, upon a judgment of the Superior Court, begun by trustee process. Writ dated January 29, 1894. The Franklin Savings Bank, summoned as trustee, answered that, at the time of service upon it, there was in its hands the sum of $133.33, which was subject to the order of the defendant “ upon the fulfilment of certain conditions ”; and this answer was sworn to. The trustee afterwards, by leave of court, filed an additional answer, alleging that the trustee lent the defendant a certain sum of money upon a promissory note secured by a mortgage of real estate in Boston, of which the plaintiff was life tenant, the defendant being the remainderman in fee, and out of that sum retained the sum of $133.33 as a deposit to protect the trustee against the plaintiff’s life estate, and upon the condition that the trustee should surrender the same to the defendant as soon as the life estate should cease as an estate superior to the trustee’s claim; that subsequently the real estate was conveyed to a third person, the plaintiff releasing her interest therein, on January 15,1894, and the mortgage was afterwards discharged by the trustee, and the note surrendered as paid, the trustee having no further claim by reason thereof; and that, at the time of service upon it, the trustee had in its hands said sum of $133.33 as the property of the defendant, with no claim of the trustee thereon, except as the facts above stated would entitle it to any claim. This answer was not sworn to. Robert S. Hall appeared as claimant of the funds in the hands of the trustee, alleging certain facts not necessary to be stated.</p> <p>At the trial in the Superior Court, before Mason, C. J., the defendant alleged exceptions to certain rulings, the nature of which appears in the opinion. The trustee was charged on its answer, and the claimant’s claim was disallowed ; and both the defendant and the claimant appealed to this court.</p>

<p>Contract, against Herbert B. Church and Fred D. Goode, copartners under the name of Herbert B. Church and Company, upon the following agreement:</p> <p>“ Boston, October 5, 1892. Nathaniel E. Taft, Esq., North Oxford, Mass. In consideration of your advancing a certain sum of money to W. E. Ellis, and accepting from said Ellis bis promissory note, and accepting from said Ellis as collateral security for said note one hundred fifty-seven shares of the Burlington Electric Railway Company, we, the undersigned, hereby agree, if said above named note or any renewal thereof remains unpaid in whole or in part at the date of its maturity, to purchase from you the above named block of 157 shares, or as many of them as shall amount to the sum then due to you on the note, with interest. The price to be paid by us for said stock shall be fifteen ($15.00) dollars per share. Herbert B. Church & Go. [Seal.l In presence of Charles I. Rawson, Edward L. Collins.”</p> <p>Trial in the Superior Court, without a jury, before' Hoplcim, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff offered in evidence the agreement declared on, and called as a witness Charles I. Rawson, one of the attesting witnesses, who testified that the agreement was signed by the defendant Church, in the presence of W. F. Ellis, Edward L. Collins, and himself, on the day of its date; that the first time he saw Church was in connection with this transaction, when a promissory note was made by Ellis, some time in August, 1892; that a note, which was put in evidence, was a renewal of the first named note; and that a certificate of stock, which was also put in evidence, was given as collateral security at the time of the transaction, in August, 1892.</p> <p>The note introduced in evidence was dated October 5,1892, and was for $2,000, payable one month after date to the plaintiff, and recited that the maker had deposited “ with this obligation, as collateral security,” a certificate for one hundred and fifty-seven shares of the capital stock of the Burlington Electric Railway Company, “ with authority to sell the same without notice, either at public or private sale, at the option of the holder or holders hereof, on the non-performance of this promise ” ; and was signed by W. F. Ellis.</p> <p>The certificate introduced in evidence recited that W. F. Ellis was entitled to one hundred and fifty-seven shares of the capital stock of the Burlington Electric Railway Company; and contained on its back a printed form of transfer, and a power of attorney to make a transfer of the shares of stock, both signed in blank by Ellis.</p> <p>Charles M. Thayer, an attorney at law, testified that he was counsel for the plaintiff in the transaction in question ; that he had in his possession a note which was surrendered to Ellis at the time the note of October 5, 1892, was given; that at the same time he had in his possession an agreement accompanying the first named note, which he also surrendered ; that, in lieu of the first named note and the accompanying agreement, he received the second note and the agreement in suit; that Ellis was present when he received these papers, and signed the note and handed it to him; that the certificate of stock given with the first note was in his possession, and he kept it; that the second note was protested, and he afterwards called on Church with all these papers to see if he would take the stock as agreed; that “ I asked him if the stock had any value, and he said that, as it was Western stock, it would have more value for him, that he had put some of it on the market, that it would not have so much value to him except for that purpose, and that he did not think it would be of much value to me”; and that Church put him off, and did not take the stock.</p> <p>The defendant Goode testified that he had no knowledge as to either of the transactions of August and November, 1892, until after this suit was brought; that Church had no authority from him to execute any such agreement as that in suit; that the business of the firm was a brokerage business, “ dealing in bonds and investments of that character, and in the promotion of new companies ”; that they were not stockbrokers, and did not handle stocks at all; that he did not know personally anything about the Burlington Electric Railway stock; and that he was not excluded from free access to the books of the firm.</p> <p>The defendant Church testified that he signed the agreement in suit, not on the day of its date, but on October 24,1892; that neither he nor the firm ever received any consideration for signing it; and that the firm dealt only in those stocks in which, they were interested as incorporators and promoters, but that they dealt almost exclusively in municipal bonds.</p> <p>Charles I. Rawson, recalled by the plaintiff, testified as follows: “ When I first saw Church, in August, 1892, at the Union Depot, Ellis paid him twenty-five dollars. Q. Was there any conversation held at that time? A. Yes, the statement of what Ellis wanted him to do was made in my presence, and, upon the suggestion of Church, we stepped around into the telegraph office and Church signed some paper. I can’t tell now what it was,— whether the note or agreement. And for that service he was paid twenty-five dollars by Ellis.”</p> <p>A letter written by C. M. Thayer, as attorney for the plaintiff, addressed to the defendants, notifying them that the note of October 5, 1892, had been protested for non-payment, and calling upon them to take the shares of stock in accordance with their agreement of that date, was put in evidence by the plaintiff.</p> <p>The defendants requested the judge to rule as follows:</p> <p>“ 1. Upon all the evidence, the plaintiff is not entitled to recover. 2. The defendant Church could not, by virtue of general authority as partner, bind the defendant Goode by the contract under seal set out in the declaration. 3. In order to bind the defendant Goode by the contract declared on, the plaintiff must show his previous assent or subsequent adoption thereof. 4. If Church signed the contract declared on without the knowledge of Goode, then Goode cannot be held liable thereon. 5. It is apparent on the face of the contract declared on, that said contract was made and intended for the accommodation of Ellis, and not for the benefit of, or for any consideration moving to, the firm, and the plaintiff must be held, as matter of law, affected with notice thereof, and cannot recover against the defendant Goode without proving his authority given for the making of said contract, or his assent to and ratification thereof. 6. The plaintiff must show, in order to recover on the contract alleged in the declaration, not only that said contract was properly made, and based on a sufficient consideration, but also that the plaintiff, at the time of making said contract, was the owner of the shares therein referred to, or assignee thereof, or authorized by the owner or assignee of his agent to sell and transfer said shares. 7. The authority in the note to dispose of the collateral on certain conditions did not authorize the plaintiff to sell the stock in accordance with the terms of the agreement set forth in the declaration, and said agreement is void. 8. Inasmuch as there is no evidence that the plaintiff ever foreclosed the equity to redeem the stock, and became absolute owner thereof before this suit was brought, he fails to show that he was ever ready and willing to perform his part of the contract, and cannot recover in this action. 9. As there is no evidence as to the value of the stock referred to in the alleged agreement, said stock being still in the possession of the plaintiff, it does not appear how much, if any, the plaintiff has been damaged, and he cannot recover.”</p> <p>The judge declined so to rule, and found for the plaintiff; and the defendants alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff’s intestate, Michael Galvin, while in the employ of the defendant corporation as a freight handler, by being struck by the defendant’s locomotive engine through the alleged negligence of the engineer. At the trial in the Superior Court, before Braley, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts sufficiently appear in the opinion.

<p>Tort, for the loss of the services and society of the plaintiffs wife, and for expense incurred by him in providing surgical attendance for her, occasioned by an injury alleged to have been received by her on April 30, 1891, while a passenger on one of the defendant’s cars, through the negligence of the defendant and its servants. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff introduced evidence tending to show that his wife received severe injuries by the negligence of the defendant, its agents or servants, as set out in his declaration; and that he had expended money for medicines and for the services of physicians who attended his wife on account thereof.</p> <p>The defendant introduced evidence tending to show that there was no negligence upon its part, or on the part of its agents or servants, as the plaintiff contended.</p> <p>The alleged injuries sustained by the wife consisted of a rupture, some six or seven inches in length, extending along the central line of the abdomen, and a fracture of the collar bone.</p> <p>The defendant contended that the injuries were occasioned by the acts of the plaintiff, and were not due to anything happening while the wife was a passenger on its car; that the rupture was an old one, of some months’ standing prior to April 30, 1891; and, in support of this contention, the defendant, without objection, introduced in evidence the testimony of a neighbor of the plaintiff, one Mrs. Helliwell, who testified that, upon a certain day in January, 1890, she was called into the plaintiff's house, where the plaintiff’s wife was on her back on the floor, and the plaintiff had hold of her feet and was kicking her with his boots on, and kicked her twice after the witness went in, while the wife put her hands to her back and leaned over to the right side, and the plaintiff called her crazy; and that these kicks were not upon that portion of her person where the rupture was.</p> <p>The plaintiff introduced in evidence, without objection, testimony of his family physician and others, that his wife, prior to April 30, 1891, had been of a naturally sanguine, cheerful temperament ; and that since that time her disposition and general demeanor had undergone a change, so that she was depressed, nervous, and melancholy. The plaintiff contended that this change was due to the injuries, and should enter into the question of damages, as lessening the value of her society.</p> <p>The defendant put in evidence, without objection, the record of the plaintiff’s conviction, on September 18,1890, of the offence of drunkenness.</p> <p>The defendant then called as a witness one Quinn, the police officer who made the arrest on which such conviction was had, and, on direct examination, asked him to state the circumstances of the arrest.</p> <p>The plaintiff objected, but the witness was permitted to testify that on the occasion of the arrest he was accosted, about eleven o’clock at night while on his beat, by one of three women who stood on the sidewalk in front of the plaintiff’s house, and one of whom was the plaintiff’s wife, but that he thought she did not herself call him ; that, in consequence of what they said, he effected an entrance for them into the house, which was locked, and he found the plaintiff inside in an intoxicated condition ; that he had a scuffle with him; that the plaintiff then, in his wife’s presence, complained of her actions; and that he then arrested the plaintiff for drunkenness.</p> <p>The defendant also called as a witness another police officer, one Ryder, who, against the plaintiff’s objection, was permitted to testify that on two separate occasions, both shortly prior to the time of the arrest above mentioned, he had been called to the plaintiff’s house, and had there found more or less confusi on, and the plaintiff in an intoxicated condition; and that, at the wife’s request, he had endeavored to calm the plaintiff.</p> <p>The plaintiff excepted to the admission of the evidence of both witnesses.</p> <p>The evidence of Quinn and Ryder was introduced by the defendant in mitigation of damages, by tending to show such relations between husband and wife as indicated that the husband did not avail himself of the companionship and society of the wife, the loss of which was alleged, and prevented the same; and the judge in his charge instructed the jury to regard it only as bearing on the question of damages. The plaintiff excepted to this instruction.</p> <p>There was no evidence in the case, otherwise than is above recited, that the plaintiff ever did or offered to do violence to his wife, or that their relations as husband and wife had ever been interrupted.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Foub actions of tobt, for injuries occasioned to the respective plaintiffs hy the escape of gas. The cases were tried together in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared by evidence introduced in behalf of the plaintiffs that the injuries complained of were caused by the escape of gas into the plaintiffs’ apartments from the defendant’s pipes in the street, the plaintiffs inhaling the gas while asleep. The defective condition of the pipe, according to the plaintiffs’ evidence, was that the pipe was rotten, and a large hole appeared there on the morning after the accident, which the witnesses testified was a foot long and two or three inches wide on the top of the pipe. It appeared further that there was no perceptible smell of gas in their rooms when the plaintiffs retired at about nine o’clock in the evening; that they were aroused by a neighbor at about midnight; that notice was sent to the defendant of the escape of gas by a police officer at half-past six o’clock the next morning; and that a competent man was at once sent by the defendant to investigate the leak, and gas was shut off from the whole district by half-past seven o’clock. Evidence was introduced by the defendant tending to prove that the gas-pipe was properly laid; that it was a proper pipe, and, after it had been laid, a drain had been dug from, the house occupied by the plaintiffs to the sewer in the middle of the street, without notice to the defendant; that the ground had settled under the gas-pipe where the drain was dug ; and that the gas-pipe had been broken by the settlement of the ground under it, leaving that portion of the pipe without support. The portion of the pipe which was broken was introduced in evidence, and showed only a small crack running round it. There was no hole on the top of the pipe, as described by the plaintiffs’ witnesses, and the pipe, except where the crack was, was in good condition.</p> <p>The plaintiffs requested the judge to rule that there was evidence enough of want of proper care on the part of the defendant to make it responsible, on the ground that it was bound to conduct its gas in a proper manner; and that the fact that the gas escaped was prima facie evidence of some neglect on the part of the defendant.</p> <p>The judge declined so to rule, and instructed the jury as follows:</p> <p>“ The mere fact that a pipe broke and the gas escaped is not of itself sufficient to establish the liability of the company. It is evidence for you to consider upon the question of neglect; but there is other evidence bearing upon this question of neglect, and so it becomes a matter for you to determine, in view of all the evidence bearing upon the question, the burden being upon the plaintiffs to satisfy you, as a result of all the evidence, that there was in fact a neglect by the defendant, through which, and by means of which, this gas escaped. .</p> <p>“Now, the law requires of the defendant that it shall use reasonable and proper care, under all the circumstances, in selecting its pipe, in laying its pipe, in taking care of it after-wards, looking after it; ■ and this question of reasonable and proper care has reference, of course, to the kind of instrumentality that it was dealing with, and to the possible or probable consequences of neglect on its part. But the principle by which its conduct is to be regulated is one of reasonable and proper care under the circumstances; and that in this case, as in most of these cases, is a question for your judgment.”</p> <p>Upon the counsel for the plaintiffs remarking, “ Your honor has not given the requests I asked for, and so I will except to that,” the judge replied as follows: “Well, you asked me to say that the fact that the gas escaped is prima facie evidence of some neglect on the part of the defendant. I do not choose to use that expression, '■prima facie evidence,’ unless the defendant consents to it. I have already told the jury that it was evidence of neglect, or of negligence, on the defendant’s part, and evidence the force of which it was for them to determine in connection with any other evidence in the case bearing upon the same subject,”</p> <p>The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Tort, under St. 1887, c. 348, for maliciously maintaining a fence unnecessarily exceeding the height of six feet on land adjoining that of the plaintiff, for the purpose of annoying him. At the trial in the Superior Court, before Sheldon, J., it appeared that the plaintiff was the owner in fee of a certain lot of land situate on the easterly side of a county road in Dracut, and the defendants were the owners in fee of another tract of land situate on the westerly side of the road and opposite that of the plaintiff, and that the road was forty-two feet wide.</p> <p>It was agreed that the boundaries described in the respective deeds of the plaintiff and the defendants gave to each the fee in the road to the centre thereof, subject to the public easement.</p> <p>The plaintiff proved all the facts necessary to enable him to maintain his action, provided the property of the plaintiff adjoined the property of the defendants within the meaning of the statute.</p> <p>After the evidence was all in, the defendants asked the judge to rule that the respective properties did not so adjoin, and to direct a verdict for the defendants.</p> <p>The' judge so ruled, and directed the jury to return a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Personal Injuries occasioned to Boy — Instructions as to Use of Machine — Negligence — Due Care.</p> <p>In an action for personal injuries occasioned to the plaintiS, a boy between fourteen and fifteen years of age, while in the defendant’s employ by using a steam punching-machine, there was contradiction in the testimony in regard to the instructions given to the plaintiff as to the avoidance of danger in using the machine. Held, that, if the jury believed the plaintiff, they might well find that there was negligence on the part of the defendant, and that it was also a question of fact for the jury whether the plaintiff, in view of his youth and inexperience, was in the exercise of due care.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by being run over by the defendants’ team. At the trial in the Superior Court, before Maynard, J., the defendants, at the close of the evidence, requested the judge to direct a verdict in their favor. The judge so directed a verdict; and the plaintiff alleged exeeptians.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, by the administratrix of the estate of John A. Morris, for causing his death. Trial in the Superior Court, before Dunbar, J., who ruled that the plaintiff could not maintain her action, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Beneficiary Association — Eoidence — Wronyful Receipt of Funds by Officer of Corporation — Fraud.</p> <p>In an action by the receiver of a fraternal beneficiary association incorporated under St. 1888, c. 429, as amended by St. 1890, c. 341, to recover money alleged to have been wrongfully taken by the defendant from the funds of the corporation while a director thereof, documents and papers on which appear the signature or initials of the defendant in his own handwriting, wherein he is referred to as holding a certain office, are admissible in evidence to show that, lie was such an officer of the corporation.</p> <p>In an action by the receiver of ,a fraternal beneficiary association incorporated under St. 1888, c. 429, as amended by St. 1890, c. 341, to recover money alleged to have been wrongfully taken by the defendant from the funds of the corporation while a director thereof, an extract from a pamphlet is competent evidence, in connection with testimony that thousands of the pamphlets were being issued from the office of the corporation while the defendant was holding a certain office and afterwards, to show that he knew, as stated in such extract, that the reserve fund was held out to the members of the corporation and to the public as a trust fund for the payment of matured certificates, and that it could not be appropriated to any other use, and also to show that in like manner the proceeds of the monthly per capita tax and of the assessments were all to be deposited in securities with the Treasurer of the Commonwealth or held as a part of the reserve fund.</p> <p>In an action by the receiver of a fraternal beneficiary association incorporated under St. 1888, c. 429, as amended by St. 1890, c. 341, to recover money alleged to have been wrongfully taken by the defendant from the funds of the corporation while a director thereof, there was evidence that the semiannual per capita taxes for payment of expenses were sent directly to the secretary general of the corporation, and did not go to the treasurer general; and it appeared that the defendant received his payments through the treasurer general. Held, that, while the evidence in regard to the fund from which the payments of the money which the plaintiff sought to recover were made was not direct and clear, the jury might fairly infer that it was the reserve fund.</p> <p>At the trial of an action by the receiver of a fraternal beneficiary association incorporated under St. 1888, c. 429, as amended by St. 1890, c. 341, to recover $1,500 alleged to have been wrongfully taken by the defendant from the funds of the corporation while a director thereof, there was evidence that he was an officer of the corporation for two years from its organization; that he was a director, and received his salary as such up to the time of the receivership; that on a certain day he made a contract with the corporation to continue for eighteen months from that date to promote the growth and well being of the corporation in certain States, in such form and manner as he should be directed from time to time by certain officers of the corporation, at an annual salary of $1,500, to be paid him by the corporation ; that on a certain day he received $500 from the corporation before any part of this salary had become due, and at the time of the payment, when asked by the bookkeeper what it was for, replied that “ he would tell him what it was for at some future time,” and that he said “ he was in a tight place and had got to use the money ”; that about three weeks later lie received $500, which he receipted for on account of salary, and two months afterwards he received §500 more ; that there had previously been talk by the defendant, or by other officers of the corporation in his presence, as to the likelihood of the corporation being stopped very soon; and that a fund of $10,000 had been set apart by the directors two or three months before for the purpose of perpetuating and defending the corporation. There was also evidence tending to show that the defendant did little or nothing under his contract; and that the payments, by direction of the principal officer, had been charged up to a certain publication as for services of the defendant as editor and publisher. The defendant afterwards told the bookkeeper that the entry on the books should be changed, as the money was paid to him not for the publication, but for lecturing for the corporation and promoting its interest. All this time his salary as director was paid to him separately, and he was preaching regularly on Sundays at a church in another State. The defendant did not testify, nor offer any explanation of these matters. Held, that the case was rightly submitted to the jury.</p>

<p>Land Damages — Expert — Evidence.</p> <p>Whether or not a person called as an expert witness shall be allowed to testify to his opinions in a case, while largely within the discretion of the presiding judge or officer, is yet a question of fact for his decision.</p> <p>At the trial of a petition for the assessment of damages for the taking of land to widen a street in a town in the vicinity of Boston, a person was called as an expert witness who had been long engaged in the real estate business in Boston, and was also an auctioneer. He had been making foreclosure sales in the vicinity of Boston for twenty years, and testified that he had sold land in all parts of tile town in question; that he might have made twenty-five or thirty sales there, or double that number; and that he had made public sales of real estate in almost every town in the vicinity of Boston. Another person, also called as an expert witness, who had been in the real estate business for more than twenty years, although he had never bought or sold land in the town in question, testified that he had been familiar with the value of real estate in the vicinity of Boston, and with the cutting up of real estate. Held, that it could not be said, as matter of law, that the judge erred in finding the witnesses to be qualified as experts.</p> <p>At the trial of a petition for the assessment of damages for the taking of land to widen a street in a town, a witness, who on his direct examination had testified to the price paid two months before the taking for a vacant lot in the vicinity of the land taken on the same street, was asked, on cross-examination, what price was paid two months after the taking for a large lot of land, upon which were a house and a stable, directly opposite the other lot testified to. This evidence was excluded. Held, that it could not be said, as matter of law, that the judge erred in finding that the lot as to which the evidence was offered was not sufficiently similar to the petitioner’s land, and in excluding the evidence.</p>

<p>Contract of Hiring—Enforcement of Negative Covenant — Equity — Inability of Plaintiff to perform— Offer of Bond.</p> <p>A negative covenant in a contract of hiring will not be enforced where, if the court had the power, it would not enforce an affirmative covenant.</p> <p>A., a theatrical manager, and B., a singer, entered into a written contract, by the terms of which A. engaged B. to render services to him for a certain period at a stated salary. The contract also contained the provisions that B. “ hereby agrees to render said services to the best of her ability at any theatre desired by ” A. “ in a correct and painstaking manner ”; and that B. “ hereby agrees that she will not render services at any other place of amusement . . . from the date of the commencement of this contract to its close, except those under the management of ” A. After the contract was executed, but before it was operative, A. became indebted to B. for services rendered under a previous contract, and was unable to pay her, and would be unable to perform his part of the second contract unless the theatrical season proved successful. B. repudiated this contract, and entered into an engagement with another manager. A. thereupon brought a bill in equity to restrain B. from singing except under his management, and, at the hearing, a bond to the satisfaction of the court for the performance of A.’s part of the contract was offered by him. Held, that the bill could not be maintained.</p> <p>Inability on the part of the plaintiff to perform his part of an agreement is a good ground for refusing to enforce the agreement against the defendant in a bill in equity for specific performance.</p> <p>After one party to a contract has, for good cause, refused to perform his part, and has entered into other engagements, the offer by the other party of a bond for the performance of his part of the contract is of no effect.</p>

<p>Tbustee pbocess. Writ dated January 5, 1888. The defendant was defaulted. A. C. Webber, summoned as trustee, admitted that, at the time of service upon him, there was in his hands the sum of $25 due the defendant. Edward B. James appeared as claimant of the funds in the hands of the trustee, by virtue of an assignment to him, under seal, dated July 13, 1887, signed by the defendant, and duly recorded, of all claims and demands which the defendant then had and might at any time have against the trustee for all sums of money due and to become due “ for services rendered under my contract ” with the trustee.</p> <p>Trial in the Superior Court, without a jury, before Blodgett, J., who reported the case for the determination of this court, in substance as follows.</p> <p>It was admitted that the defendant made a contract in writing with the trustee to erect a house for him in Cambridge; that,, for the purpose of securing payment to the claimant for lumber and materials furnished and to be furnished by him for the house described in the contract, the defendant, on July 13, 1887, gave to the claimant the assignment above mentioned; and that the contract mentioned in the assignment was the defendant’s contract with the trustee above referred to. The writ was served upon the trustee on January 5, 1888, and there was then due to the claimant for lumber and materials furnished to the defendant a sum largely in excess of the funds in the hands of the trustee, the funds being the money which had become due to the defendant under the contract between Mm and the trustee.</p> <p>The plaintiffs requested the judge to rule that the assignment covered only so much as became due to the defendant under his contract with the trustee for labor performed by the defendant, or, at the most, only so much as became due to the defendant for labor performed and furnished by him thereunder. The judge declined to rule as requested; ruled and found that the claimant was entitled to the funds in the hands of the trustee; and ordered that the trustee be discharged.</p> <p>If the ruling was erroneous, a new trial was to be granted; otherwise, judgment was to be entered in accordance with the finding.</p>

<p>Three petitions, under St. 1890, c. 428, for the abolition of certain grade crossings in the town of Norwood. After the former decision, reported 161 Mass. 259, the case came on to be heard in the Superior Court upon the question of entering a decree on the decision of the commissioners.</p> <p>The decree, after reciting the previous proceedings in the cause, contained the following provisions:</p> <p>“It is now, after a full hearing of the parties, hereby ordered, adjudged, and decreed that the decision of said commissioners as to Washington, Chapel, and Guild Streets, as shown and set out in their report, be and the same is hereby affirmed, and that the said company and the said town of Norwood shall forthwith proceed to carry out the work of abolishing the grade crossings of said railroad at Washington Street, at Chapel Street, and at Guild Street, in the way and manner set out in the report of said commissioners.</p> <p>“And that Albert E. Avery, of Braintree, in said county, be and is hereby appointed auditor, to whom from time to time shall be submitted all accounts of expense, whether incurred by said road, said town, commission, or auditor, who shall audit the same, and make report thereon to the court.”</p> <p>From this decree the railroad company appealed to this court. The grounds of the appeal appear in the opinion.</p>

<p>Sale by Auction — Statute of Frauds — Agreement — Highest Bid — Action.</p> <p>If the jury find that the talk between a bidder and the auctioneer, at an auction sale of real estate, amounted to an agreement by the auctioneer to knock down the property to the bidder if he should bid a certain amount, and that was the highest amount bid, the agreement is within the statute of frauds, and an action by the bidder will not lie to recover damages for a breach thereof.</p>

<p>Use of Another’s Property by a Town — Express or Implied Contract.</p> <p>If a person’s hose gets mixed with that of a town and the fire department uses it in connection with the town hose in extinguishing fires, supposing that it belongs to the town, an action against the town for the use of the hose will not lie, if no actual contract was made by the town and there were no circumstances from which a contract with the town might be inferred.</p>

<p>Contract, upon a written agreement, dated March 22, 1892, reciting that “there is now due to Joseph R. Beharrell from Edward R. Orcutt a sum of money under and by virtue of a certain written contract,” by the terms of which the plaintiff undertook, “for a consideration therein specified to be paid by said Orcutt at the times and in the manner therein mentioned,” to erect a dwelling-house on Orcutt’s land; that the defendant had taken from Orcutt a deed of such land; and that the plaintiff had, at the defendant’s request, refrained from attaching the property “for the sum due him under said contract”; and covenanting, in consideration of the premises, that the defendant would pay to the plaintiff “ all sums of money now due and to become due to him under said contract according to the tenor thereof ”; and signed by the defendant. The case was referred to an auditor. Trial in the Superior Court, without a jury, before Bishop, J., who found for the defendant; and, at the request of the parties, reported the case for the determination of this court. If the ruling of the judge was wrong, and if, upon the evidence, the plaintiff was entitled to recover, judgment was to be entered in his favor; otherwise, judgment was to be entered for the defendant in accordance with the finding. The facts appear in the opinion.</p>

<p>Unincorporated Association — Contract — Agent acting within Scope of Ms Employment.</p> <p>In an action against the members of a college class, for work done and materials furnished in the publication of a book, there was evidence from which the court might infer that the defendants voted at a class meeting to publish the book, or assented to the vote, and elected as “ business manager of the publication ” A., one of their number, who made with the plaintiff the contract in suit. The court found for the plaintiff. Held, that the contract was within the scope of A.’s employment, and that the defendants had no ground of exception.</p>

<p>Deed — Easement — Right of Way— Contract to work Way for Travel — Estoppel — Statute of Frauds.</p> <p>The grantee of land bounded on a street owned by the grantor and extending to a public street acquires by his deed a right of way to the latter street over the grantor’s land as the way is defined on that land when the deed is delivered, but the grantor is not bound to work the way so that it shall be fit for travel, unless he has promised so to do; and such promise may be shown by oral evidence.</p> <p>The grantee of land bounded on a private street acquires by estoppel a right of way in the street against the grantor and his heirs and assigns only when the grantor owns the street or has the right to grant such an easement in it; and an oral agreement by the grantor to give the grantee a right of way over land of other persons is within the statute of frauds, Pub. Sts. c. 78, § 1, cl. 4.</p>

<p>Tort, for malicious prosecution. At the trial in the Superior Court, before Blodgett, J., the plaintiff offered evidence tending to show that she had long resided in Foxborough, and was the niece of Elizabeth Gray, who was more than ninety years of age and lived in a house on Green Street in Cambridge; that prior to the summer of 1890 she had been in the habit of visiting her aunt at her house in Cambridge, and that the relations between them were friendly; that during the' summer and autumn of 1890 Elizabeth was an invalid, and confined to her room; that in April, 1890, the defendant was appointed by the Probate Court of the County of Middlesex guardian of Elizabeth, who was adjudged to be an insane person, and continued to be such guardian at the time of the criminal prosecution complained of in this action; that late in the summer of 1890 the plaintiff received a message from her aunt requesting her to call upon her, and went to the house in Cambridge and was admitted by the housekeeper, who was employed as such by the defendant; that the housekeeper showed her a letter from the defendant to the housekeeper, which the plaintiff read, and which contained, among other things, these sentences: “ From the time you receive this letter, none of the Grays of Foxborough, their wives or families, can go into that house or see Aunt Elizabeth again until my legal duty in the matter is ended. ... If any person attempts to go into the house or to go upstairs without your consent, you must call a policeman. . . . The Grays of Foxborough can see this, but it is not best to have it taken away.” The plaintiff admitted that she understood from this letter that she was forbidden by the defendant, as guardian of Elizabeth Gray, to visit her aunt at her house in Cambridge, and she testified that at the time when the letter was shown to her she left the house without visiting her aunt’s room. The plaintiff further testified that early in October, before the 20th, she again went to the house of her aunt in Cambridge, upon her aunt’s invitation, and after some talk with the housekeeper, who again called her attention to the prohibition in the defendant’s letter, went to her aunt’s room, saying that her aunt wanted to see her, and she would take the responsibility, and that she remained with her aunt about fifteen minutes.</p> <p>The plaintiff and one Maria Murdock, called by her, admitted on cross-examination that they knew that the defendant asserted that their visits to his ward and their conversations with her made the ward ill.</p> <p>On October 20, 1890, the defendant made complaint against the plaintiff to the Third District Court of Eastern Middlesex, which recited that the plaintiff “ did enter the dwelling-house of one Elizabeth Gray, . . . having been heretofore forbidden to enter said dwelling-house by said George W. Parke, the guardian of said Elizabeth Gray, he the said Parke having then and there the lawful control of said dwelling-house.” The plaintiff appeared to answer, and the case was continued from time to time until February 25,1891, when the case was dismissed, the docket entry being, “ Case dismissed, both parties being in court, and neither objecting.” The plaintiff offered evidence tending to show that after the dismissal of the case the defendant said, in the presence of the plaintiff, that he did not care about the result of the criminal prosecution; that he had accomplished what he had set out to do, which was to keep the plaintiff from the house.</p> <p>At the close of the plaintiff’s evidence, the judge having intimated that the plaintiff had failed to show that there was no probable cause for the prosecution, the plaintiff contended that the.prohibition by the defendant against the plaintiff’s visiting her aunt was not made in good faith, and was an unreasonable and improper prohibition to be made; and requested the judge to rule that she had a right to have this question determined by the jury, and, further, that if the defendant made the prohibition in bad faith, it could not be said that the defendant had probable cause for making the complaint.</p> <p>The judge declined so to rule, and ruled that, upon the evidence and facts as before stated, the defendant had probable cause for making the complaint, and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Expert —Answer to Hypothetical Question. </p> <p>In an action for personal injuries occasioned to the plaintiff’s intestate by being struck and run over by a horse with a sleigh attached, a post-mortem examination more than four years thereafter revealing tumors in the cerebellum, a good practising physician of long experience who knows what the authorities say in regard to tumors may properly be permitted to answer in the following manner a hypothetical question as to the exciting cause of the illness of the plaintiff’s intestate, viz.: “ From the result of the autopsy, knowing that there was a tumor of the brain, I presume that was the exciting cause of the troubles from which he suffered,” although in his practice he had not been familiar with tumors on the brain and did not pretend to understand the cause of tumors.</p> <p>A doctor of medicine may be competent to express an opinion upon the effect of pressure at the base of the brain, whether it arises from tumors or other causes, although he may never have been called to a case where tumors were known to exist there, and in determining the qualifications of a physician the extent of his reading in his profession may be considered as well as his experience.</p>

<p>Contract, upon an account annexed, to recover the balance of an account. Answer, an accord and satisfaction. Trial in the Superior Court, before Dunbar, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The parties entered into an agreement several years before 1889, by which the defendant was to pay the expenses of the development of a vertical loom, of which the plaintiff was the inventor and patentee. The defendant, before 1889, paid to the plaintiff upwards of $3,000 to defray those expenses ; and on January 25,1889, when certain agreements, copies of which were annexed to the defendant’s answer and marked A and B, were executed, the defendant was indebted to the plaintiff on an accounting together in the further sums of $911.50 and $162.37.</p> <p>Agreement A was entered into between the plaintiff, the defendant, and one Henry A. Williams, and provided that, whenever the loom and its patents should become the property of a corporation about to be formed for perfecting the loom and promoting its sale, the plaintiff and the defendant would severally cause the shares to which they were entitled to be issued to Williams as trustee, who should hold the same “ for their joint benefit, in equal shares,” subject to certain conditions recited.</p> <p>Agreement B, which was entered into between the plaintiff and the defendant, provided as follows:</p> <p>“ First. A corporation shall be formed with a capital stock of such amount as shall be mutually agreed upon. Of this capital stock, one fourth shall belong to the parties to whom Field has already assigned; one fourth each to said Field and said Aldrich; and the remaining fourth to the said Field as trustee, to be disposed of as hereinafter mentioned. . . .</p> <p>“ Third. The said Field agrees to dispose of the fourth interest held by him as trustee to the best advantage possible, and apply the proceeds thereof as follows ” : 1. To repay to himself $911.50, being the defendant’s share of expenses incurred to develop the loom from December 1, 1887, to December 1, 1888. 2. To repay to himself $162.37, being advances made by the plaintiff for account of the defendant prior to December 1,1887. 3. To pay his own salary at a certain rate for a certain time.</p> <p>“ Fourth. Any surplus of proceeds of sale of said trustee shares, after meeting the above claims, or any shares then unsold, shall be divided equally between said Field and said Aldrich.”</p> <p>Immediately after the execution of agreements A and B, a corporation was formed under the laws of the State of Maine, with two thousand shares of capital stock, the patent being the principal assets of the corporation. The plaintiff testified that, while he considered the loom of great value, it had not proved a success, as the mills in which it had been placed were not so constructed as to demonstrate its merits, but that in his judgment it would prove a success and a great saving in time over the present looms in mills so erected as to facilitate its operation as a vertical apparatus; that such mills could be easily erected, and he had not disposed of any of the shares in the fourth interest held by him as trustee under the third article of agreement B; and that he had tried to sell them and did not succeed. The plaintiff further testified, on cross-examination, that he was aware that, not long after the corporation was formed, one hundred shares of the defendant’s stock held in trust according to the provisions of agreement A were sold for the sum of $2,000, and the money received therefor. He also testified that, immediately after the execution of agreements A and B, he made a demand on the defendant for the sums declared on of $911.50 and $162.37; and, further, that the patent had a number of years to run. The credibility of his testimony was not questioned.</p> <p>The defendant offered no evidence; and, at the close of the plaintiff’s testimony, asked the judge to direct a verdict in his favor. The judge declined so to do; and directed the jury to return a verdict for the plaintiff for the sums above named, with interest thereon from January 25, 1889.</p> <p>If the ruling was correct, judgment was to be entered for the plaintiff; otherwise, for the defendant.</p>

<p>Evidence — Books of Account—Exceptions — Trial — Instructions.</p> <p>Entries in a defendant’s books of account are not made admissible by the fact that the plaintiff has been seen looking over the books with no more definite evidence that he has seen the entries.</p> <p>No exception lies to the refusal of the judge to repeat instructions which he has given to the jury.</p>

<p>Mechanic's Lien — Breach of Contract by Contractor — Defence.</p> <p>It is no defence to a petition to enforce a mechanic's lien, under Pub. Sts. c. 191, for labor performed for a contractor upon the respondent’s house, that the material furnished by the contractor was not of the quality called for by the contract and the petitioner’s work, through no fault of his, was a damage to the house.</p>

<p> Liability of successive Indorsers of a Note for the Accommodation of a Third Person. </p> <p>Successive indorsers of a note for the accommodation of a third person are liable in the same order as indorsers for value, in the absence of special agreement.</p>

<p>Care of Infants — Notice under Statute.</p> <p>The language of St 1892, c. 318, § 7, which requires any person receiving under his care or control, or placing under the care or control of another, for compensa- ■ tian, an infant under two years of age, to give notice within two days to the State Board of Lunacy and Charity, includes any person receiving an infant and any person placing an infant under the care of another, and relates to the reception of one infant, and has no reference to other provisions of the statute which require a license; and if a mother places her child under the care and control of a person who receives the child and agrees to board, care for, and take control of him, and then receives compensation for his board for the period of ten days, that person violates the statute if he does not give notice to said board within the two days.</p>

<p>The first case was a petition for a writ of prohibition against the board of aldermen of Cambridge. The second case was a bill in equity against the same board. The third case was a petition for a writ of mandamus against the water board of Cambridge. The cases were heard, the first two together, and the third subsequently, and dismissed, by Solmes, J., who, at the petitioner’s request, reported all the cases for the determination of the full court. The facts appear in the opinion.</p>