Volume 163 — Massachusetts Reports

Contract, upon a promissory note for $266.30, dated July 5, 1891, payable four months after date to the order of the plaintiffs, signed “ Geo. J. Raymond & Co.,” and indorsed “ Raymond Skate Co., per J. M. Raymond, Treasurer.” The declaration alleged that the note was made by “ Hattie D. Raymond, then doing business under the firm name and style of George J. Raymond & Co.” Answer: 1. A general denial. 2.

<p>Loss of Life — Street Railway— Child — Due Care of Parent — Law and Fact.</p> <p>A boy two years and eight months old lived with his parents in a house on a place, so called, about two hundred feet distant from a street upon which an electric railway ran. There was a yard outside of the house enclosed by a fence with a gate opening from it into the place, and on the gate was a catch to fasten it, and also a rope, sometimes used for the same purpose. There were older children in the family, who attended school, and who had been instructed to fasten the gate whenever they passed in or out. One of them, a girl seven years old, who once had been punished by her mother for leaving the gate open, went out of the house after dinner into the yard on her way to school, and left the gate open as she passed out. The boy followed her from the house into the yard, and went out upon the street, where he was run over and killed by an electric car. His mother, who was engaged in her household work, saw him follow his sister out of the house, and learned of the accident ten or fifteen minutes afterwards. Held, in an action against the railway corporation for causing his death, that it was a question of fact for the jury whether the mother was reasonably careful in allowing the boy to go out into the yard alone, and in not watching him after he went out.</p>

<p>Mechanic’s Lien — Exceptions — Statement of Account—Consent of Owner—• Worth of Labor.</p> <p>If the statement of account filed by a person seeking to enforce a mechanic’s lien, under Pub. Sts. c. 191, for labor furnished under a contract for labor and materials in the erection of a house, sets out the amount due, which the court finds to be the true amount, it is no objection to the statement that it does not set out the contract price or the credits to be allowed for materials to the person with whom the petitioner contracted, it being admitted that there was no intention to mislead, and it being found by the court that the party entitled to notice of the statement was not misled by it, as provided for in St. 1892, c. 191, amending Pub. Sts. c. 191, § 6.</p> <p>A. held an agreement from B. to sell him the land on which a building was being erected by A., on condition that the latter should complete the building at his own expense and in his own behalf, B. making the advances for that purpose, which were to be paid back before the land was conveyed. C. made with A. a sub-contract to furnish labor and materials in the erection of the house. B. saw 0. at work, and afterwards told him that he had given A. the money to pay him. Held, upon a petition by C. against B. to enforce a mechanic’s lien, under Pub. Sts. c. 191, for labor furnished under his sub-contract, that this agreement was with the consent of the owner of the building, within § 1.</p> <p>A finding of the judge upon the trial of a petition to enforce a mechanic’s lien, under Pub. Sts. c. 191, for labor furnished under a contract in the erection of a house, that the labor was reasonably worth what was charged for it, disposes of a request for a ruling which was refused, that the petitioner could not charge a profit on his own labor, or on the labor which he furnished, above the amount which he actually paid for the labor, or which was the going price of that class of labor.</p>

<p>Lease of Machine — Construction of Contract—Penalty — Damages.</p> <p>The owner of certain machines for sewing buttons let them to another under a written instrument, by the terms of which the lessee agreed to keep an account of 'tlie number of buttons sewed, and to pay for the use of the machines at the rate of twelve cents a thousand. The instrument then provided that, if the lessee failed to keep and render such an account, the lessor might at his option either employ a person to keep the account, “ or the lessor may, if he prefers, charge said lessee, in lieu of said twelve cents per thousand, the sum of five dollars per day for each of said machines while and so long as said lessee shall fail or neglect to render accounts of the number of buttons as above provided, and in either case said lessee hereby agrees to pay the reasonable compensation of such person employed as above specified, or to pay to the lessor the full price per day for said machines, as above agreed.” Held, in an action upon the instrument, that the provision for payment at the rate of five dollars a day was not a penalty, but such rate was the estimated equivalent of what would be due by account for the time when the lessee failed to keep an account; and that judgment was to be entered upon the basis of such rate.</p>

<p>Ejectment, by the administratrix with the will annexed of the estate of Herbert W. Miller, to recover the residue of a term of a lease, made by the. defendant to the testator, of certain premises on Howard Street in Boston, and damages for withholding the same. Trial in this court, before Holmes, J., who, at the plaintiff’s request, reported the case for the consideration of the full court. If either of certain rulings was wrong, there was to be a new trial; otherwise, judgment was to be entered for the defendant. The facts sufficiently appear in the opinion.</p>

<p>Tort, for trespass upon the plaintiff’s land and wharf, with a count in contract. Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff introduced evidence tending tó show that in the year 1886 the board of alderrqen of the defendant city, by an order duly passed, and approved by the mayor on June 28,1886, laid out a common sewer through Granite Avenue, Adams Street, and Minot Street, which sewer became when constructed the property of the city.</p> <p>On June 30,1886, the city entered into a contract for thé construction of the sewer with John A. Gill, which contract was in: traduced in evidence by the plaintiff, and provided, among other things, that the contractor was “ to furnish all the materials except as hereafter specified, and do all the work according to the plans and specifications ” set out; that the excavation was to be made true to the line and grade as given to the contractor, and, if the material was unsuitable for forming the bottom, a further depth was to be excavated “ as directed by the superintendent or inspector in charge ”; that only such length of trench was to be opened at once “ as directed by the inspector”; that the earth excavated was “ to be compactly placed along the trench, so as to be as little annoyance as possible to abutters, . . . and no obstruction to be placed upon the sidewalks ”; that the trenches and banks were to be kept lighted and fenced as provided in the city ordinances, “and the contractor to be responsible for all damages arising from, or in consequence of, the construction of the sewer ” ; that all sewers or drains were to be connected with the work “ as directed by the superintendent or inspector”; that the earth should be removed and the street cleaned up as the work proceeded, “ to the satisfaction of the inspector ”; that certain notice should be given by the contractor .to any railroad corporation before entering on its location, “ and every provision for safety required by them, or by the inspector, must be complied with ”; that certain notice should also be given to any street railway corporation, in crossing or in opening trenches beneath its tracks, and the work performed so as to permit the passage of cars, “ unless by special direction of the superintendent ” ; and that the work was to be finished by a date named.</p> <p>The contract also contained the following clauses :</p> <p>“ The work to be kept perfectly clean from dirt, brick-bats, etc., as built, and the whole done to the satisfaction and acceptance of the superintendent of sewers, and subject to his inspection and direction at all times. . . .</p> <p>“ None but citizens of Boston to be employed on this work, and the contractor to whom this contract is awarded must agree to comply with this rule. . . .</p> <p>“ The city will furnish as near the line of the work and in such quantities as practicable all the bricks, cement, pipes, and branches, manhole and catch-basin curbs and covers, and slants.”</p> <p>The work of constructing the sewer was begun soon after the date of the contract.</p> <p>The plaintiff was in 1886, and at the time of the acts complained of, the lessee of three undivided fifths of a lot of land, part of which consisted of a wharf adjoining Granite Avenue on the easterly side, being the land described in the declaration, and owner in fee of the remaining two undivided fifths thereof. There was evidence tending to show that, in the course of the construction of the sewer in Granite Avenue in the summer and fall of 1886, large quantities of material excavated from the trench, consisting of rock and gravel, were thrown and deposited on the line of the same by the men at work in the trench. The location of the easterly line of Granite Avenue was in controversy at the trial; but the evidence for the plaintiff tended to show that the material so excavated was thrown upon and also spread beyond said easterly line, as it was claimed by the defendant, to and over some of the plaintiff’s land. A portion of the material excavated from the trench was left where it was originally deposited, and was described as forming, at the time of the trial, a pile about fifty feet long in the longest part, and about twenty-five feet wide; originally, it was somewhat larger. There was evidence that large quantities of water were pumped from the sewer trench, which went on to the estate of one Mullen, and ran from there upon land claimed by the plaintiff to be part of her estate, and across that estate to the river; and that bricks used in the construction of the sewer were landed upon the plaintiff’s wharf.</p> <p>Thomas J. Young, called as a witness by the plaintiff, testified that he was superintendent of sewers of the defendant city in 1886 ; that, in the exercise of his duties as such superintendent under the contract with Gill, he visited the place of the work in Granite Avenue from three to five times a week; that there were officers under him, the chief engineer of the department and two inspectors, and these officers were present, under the terms of the contract, at different times while the work was going on, from July, 1886, to March, 1887; that he saw Gill and his men putting the earth upon the lines of the sewer in the place where they did put it; and that he saw no reason to, and did not, stop them, and did not think that he had any right so to do.</p> <p>Granite Avenue opposite the plaintiff’s land, was laid out three rods wide. The sewer trench was a little easterly of the middle line of the street, on the side nearest the plaintiff’s land, the westerly side of the street being reserved for travel during the construction of the sewer. Young testified further, that Gill might have carted the rubble excavated away from the ditch, and carted it back again, or he might have piled it a great deal higher than he did, covering a smaller space of ground; that he should think these were all the courses open to him; that it could not be carted back along the street and deposited on the street; that there was surplus material deposited on the street then from the part of the. sewer which had been completed; that about four fifths of the material excavated went back into the trench ; that it was a very deep cut there; and that the material took up nearly all of the street.</p> <p>In pursuance of the obligations on the part of the defendant under the contract to furnish the brick to the contractor, the city made a contract with the firm of Ham and Carter to furnish a quantity of brick to be delivered upon the work mn the line of the sewer, and Ham and Carter unloaded such brick on the plaintiff’s wharf and carted them with teams from the wharf across the plaintiff’s land to Granite Avenue, and delivered them to the city upon the work on the line of the sewer. It did not appear that there was any arrangement between Ham and Carter and any one representing the city that Ham and Carter should use the wharf or cross the plaintiff’s land in delivering the brick; but it did appear that such use was known to the superintendent of sewers, that no objection was made by him to such use, and that at the time the work on the sewer was commenced he talked with one Pierce about unloading brick on that wharf. There was evidence that some of the brick landed on the wharf were sold and delivered by Ham and Carter to other parties in the neighborhood.</p> <p>Upon the foregoing evidence, the judge ruled that the defendant was not liable for the trespasses complained of; and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

Contract, against the surety upon a poor debtor’s recognizance. Trial in the Superior Court, without a jury, before Bond, J., who found for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Sewer—Validity of Assessment — Laying out of Sewer.</p> <p>So far as an assessment, under Pub. Sts. c. 50, § 7, for "the cost of constructing a sewer is concerned, it is unnecessary that the laying out of the sewer should be before its construction.</p> <p>A way in a town was laid out and wrought as a private way, and a sewer was constructed through it by the owners of the land. Houses were built on abutting lots, and drains were laid from them connecting with the sewer. The owners of the way and of the sewer obtained permission from the selectmen of the town to enter the sewer into a larger one, which was a part of the general system of sewers in the town, under an arrangement that, if the sewer should not after-wards be laid out by the town, the right of drainage should be on such terms as the selectmen might impose. Afterwards the way was laid out as a public way by the selectmen, and their action was duly adopted by the town. Previously to the laying out it was agreed between the selectmen and the owners of the way and of the sewer that the town should pay the owners the actual expenses which had been incurred in constructing the sewer. The owners then -made deeds of release of the land included in the way and of the sewer laid therein, and the town paid them the cost of constructing the sewer, and adopted the sewer as a part of its system of sewers. These agreements and transactions between the owners and the selectmen were in accordance with a long established practice of the town in similar cases. Held, that there was such a laying out of the sewer as made it one of the town’s sewers, and subjected the land abutting on the street to assessment under Pub. Sts. c. 50, § 7.</p> <p>The fact that abutters on a private way in a town bought houses and lots with drains running into the sewer which had been constructed^ in the way by the owners thereof, does not affect the right of the selectmen to lay an assessment, under Pub. Sts. c. 50, § 7, in favor of the town, after the purchase of the sewer by the town from the owners of it, if it does not appear that such abutters had acquired any rights, as against the owners of the fee, which would prevent the sale of the sewer to the town.</p>

<p>Composition Proceedings — Right of Appeal to Superior Court.</p> <p>In proceedings for a composition in an insolvency case, the debtor, if dissatisfied with the allowance of a claim against his estate, has no right of appeal to the Superior Court.</p>

<p>Bill in equity, filed in the Superior Court on May 18,1893, by James H. Wentworth and Irving W. Ireland, copartners under the name of James H. Wentworth and Company, and Frank F. Marcy, against the S. A. Woods Machine Company, a corporation, and Albert L. Harwood, administrator de bonis non of the estate of Alfred Fitzpatrick, deceased, to restrain the defendant corporation from taking, by writ of replevin or otherwise, certain machines under alleged leases, and to compel the defendant Harwood, as administrator, to pay to the defendant corporation all sums found to be due it under such leases.</p> <p>At the hearing, it appeared in evidence that Fitzpatrick, the intestate, entered upon and became possessed of certain premises in Newton in January, 1889, with the intention of purchasing the same and erecting a planing mill thereon; that on February 19,1889, Fitzpatrick, for a valuable consideration, gave his promissory note for $4,000, payable in three months from its date, to the plaintiff Marcy, secured by a mortgage of the machines, fixtures, and implements on the premises; that on March 19, 1889, Walter C. Lawrence, the owner of the premises, conveyed them to Marcy by warranty deed; that on January 22, 1891, Fitzpatrick gave to Marcy a bill of sale, in the usual form, of the machines, implements, and fixtures included in the mortgage above mentioned, and Marcy took possession of the same and discharged the mortgage; that on January 28, 1891, Fitzpatrick filed his petition in the Court of Insolvency for the county of Middlesex, was duly adjudicated insolvent, and on January 14, 1892, obtained his discharge; that on January 30, 1891, Marcy, by deed of indenture, leased to Fitzpatrick the premises in question, with the machinery, fixtures, etc., for the term of one year, and the lessee occupied under the same; that on May 7, 1892, Marcy, at the purchase price of $10,000 and the assumption of an existing mortgage, delivered to Fitzpatrick a warranty deed conveying to him the premises, and Fitzpatrick thereupon gave his promissory note for the purchase price, and secured the payment of the same by a mortgage of the real estate and also a mortgage of the machines, fixtures, and implements thereon; that Fitzpatrick occupied the premises and carried on the business of a planing mill from his entry thereon in January, 1889, until his death on August 11, 1892; that on September 13, 1892, Isaiah T. Loveland was appointed administrator of the estate of Fitzpatrick, and continued as such until February 10,1893, when he died; that on March 14, 1893, the defendant Harwood was duly appointed administrator of the goods and estate of Fitzpatrick not already administered; and that in December, 1892, Marcy, under the powers and for the breach of the conditions in the mortgage given by Fitzpatrick to him, and for the purpose of foreclosing the same, took possession of the real estate, fixtures, and machines described therein, and afterwards, on December 23, 1892, by deed of indenture, leased the real estate, machines, fixtures, and implements to the plaintiffs James H. Wentworth and Company.</p> <p>Elroy 1ST. Heath, the treasurer of the defendant corporation, testified, in substance, that Fitzpatrick had bought many machines of the corporation for use in his business; and that all had been paid for except three, which went into his planing mill, and which were delivered to him under written instruments, dated respectively February 15, April 9, and April 20, 1889, reciting that he had “ borrowed and received ” of the corporation the machines, the price of which was stated, and containing the following provisions: “ If the price set against them is paid as per memorandum in the margin, the property is then to belong to such borrower, otherwise it remains the property of S. A. Woods Machine Co. Notes and drafts, if given, are not to be considered as payments until they are paid, and all part payments are to be forfeited- by non-payment of the balance at the time stated; in the mean time the borrower is to keep the property in good order, and may use it free from any other charge. And said borrower agrees to pay such price as per memorandum, and to keep the property sufficiently insured for the benefit of the said S. A. Woods Machine Co.” They also contained a “ memorandum of payments to be made,” consisting of one cash payment, and the balance in a series of promissory notes.</p> <p>The witness further testified that the price of two of the machines was $800 each, and of the other $900; that Fitzpatrick gave the corporation the notes called for by the terms of the instruments, some of which were paid at maturity, and others were not, and upon the latter he made small payments in cash at different times and gave renewal notes for the balance, and these latter notes were themselves renewed several times in many instances, the amounts thereof being reduced by partial cash payments ; that these- payments were applied to the notes falling due, without regard to the particular instrument; that, at the time of his death, there was due on these notes the sum of $518.39, without interest; that this sum had not been paid ; and that the corporation never made any claim under the forfeiture clause in the instruments.</p> <p>Several letters from the corporation to Fitzpatrick, urging payment of amounts overdue, and also letters from the corporation to the administrator of his estate, calling attention to the matter, and asking for payment of the balance due, were put in evidence. There was also evidence that the machines in question weighed from three thousand to forty-five hundred pounds each; that they rested on the floor of the mill, and were fastened merely by screws through holes in the legs for the purpose of steadying them; that they were of a regular stock pattern, they could be removed without injury to the building, and were suitable for use in any other planing mill; that Fitzpatrick had the machines insured as personal property, “ with the loss payable to the ” corporation “ as their interest might appear ” ; that in the insolvency proceedings of Fitzpatrick the corporation was included in the list of creditors, its security being described as leases; and that the corporation did not prove any claim against the insolvent estate. The defendant Harwood testified that the amount of Fitzpatrick’s estate, including outstanding claims, was about $1,600; and that the amount of his indebtedness, outside of the claim of the defendant corporation, exceeded $6,500.</p> <p>A decree was entered adjudging that the machines were the absolute property of the defendant corporation, and that the plaintiffs were entitled to no relief against the defendant Harwood; and dismissing the bill, with costs. The plaintiffs appealed to this court.</p>

<p>Salary of Officer of County Jail — Power of Board of Aldermen of Boston — Approval of Mayor — Statute — Action.</p> <p>The power of the board of aldermen of the city of Boston as county commissioners to fix the salaries of the officers of the jail of the county of Suffolk is not taken away by St. 1885, c. 266.</p> <p>It seems, that a regulation of the board of aldermen of the city of Boston as county commissioners, fixing the salaries of the officers of the jail of the county of Suffolk, need not be presented to the mayor for his approval, under St. 1885, c. 266, § 10.</p> <p>Whether an action for salary due an officer of the jail of the county of Suffolk should not be brought against the city of Boston, instead of the county, quasre.</p>

<p>Personal Injuries — Negligence — Due Care — Evidence.</p> <p>In an a'ction for personal injuries occasioned to the plaintiff by being shot by the defendant while they were on their way in the Maine woods to a hunting camp on a road bordered by woods and brush, it appeared that there was no reason to expect that any persons were in the vicinity except the party of which they were members, and that the members of the party rode or walked as they chose, those walking not always keeping together, and at a time when both the plaintiff and the defendant were on foot the plaintiff sat down alone in the woods a few feet from the nearest wheel rut and was shot by the defendant, who had discharged his rifle at a partridge, not knowing that the weapon was pointed toward the plaintiff. The defendant excepted because the plaintiff was permitted to introduce evidence that members of the party rested along the route, both in the road and oft' the road in the bushes, without direct evidence in every instance that it was done with the knowledge of the defendant. The evidence was conflicting as to whether there were bushes about the place where the plaintiff was sitting when the defendant fired, and the plaintiff testified that when he first saw the defendant approaching he did not appear to be about to shoot, and that on the instant after, upon seeing him raise the weapon, he cried out to him, “ Don’t shoot.” Held, that the conduct of the members of the party with reference to keeping in or going out of the roadway might reasonably be expected to be the same at the time of the shooting as it had been during the journey, and that the jury might reasonably infer that, if members of the party rested outside of the roadway, that fact must have been observed by and become known to the defendant in the course of the journey, and that the evidence as to members so resting was relevant. Held, also, that the court could not rule, as matter of law, that the plaintiff was negligent, and that requests based upon the theory that, as matter of law, the plaintiff was not in the exercise of due care, were rightly refused.</p>

Complaint, for a warrant to search for intoxicating liquors, alleged to be kept in a building in New Bedford occupied by Edward E. Wright as a drug store, and intended for sale by him in this Commonwealth contrary to law. The Wright Drug Company appeared, and claimed the liquors seized as its own.

<p>Tort, for false imprisonment and for malicious prosecution. Trial in the Superior Court, before Sherman, J., who, at the defendant’s request, directed the jury to render a verdict for the defendant; and the plaintiff alleged exceptions, the nature of which appears in the opinion.</p>

<p>Replevin— Order for a Return — Exceptions.</p> <p>In an action of replevin no exception lies to the order of the court for a return of the chattel to the defendant if the bill of exceptions fails to show that the court had no power to order the return.</p>

<p>Maritime Law — General Average — Cesser Clause in Charter-party.</p> <p>The obligation to contribute to a general average loss, or to general average expenses, springs from the law itself, and not from any contract between the parties concerned, and rests upon the vessel, the cargo, and the freight in proportion to their respective values, and upon the owners of each in proportion to the value of their property at risk; and it may be enforced by resorting to a lien upon the property saved from the common peril, or by action against the persons bound to contribute.</p> <p>A charter-party contained the following clause: “ It is further agreed that all liability of charterers under the agreement shall cease as soon as the cargo is shipped on board. All questions, whether of demurrage or otherwise, to be settled with the consignees, the owner and captain looking to their lien on cargo for this purpose.” Held, that, under this clause, the charterer, who was also the owner of the cargo, was not released from his obligation to contribute to the payment of general average expenses. Morton, J. dissenting.</p>

<p>Contract, to recover $250, the balance alleged to be due the plaintiff under a contract to furnish the electrical appliances for a school building in the defendant city. Trial in the Superior Court, before Fessenden, J., who declined to rule, as requested by the defendant, that the plaintiff could not recover; directed the jury to return a verdict for the plaintiff; and, at the request of the parties, reported the case for the determination of this court. If, upon the facts agreed, the jury would have been justified in finding for the plaintiff, judgment was to be entered upon the verdict; otherwise, judgment was to be entered for the defendant. The facts appear in the opinion.</p>

<p>Devise of an Estate in Fee Simple — Statute.</p> <p>A devise by a testator to his wife of all his real property, “ for her sole use and comfort during her natural life, and to her heirs and assigns forever, ” gives an estate in fee simple; and the provisions of Pub. Sts. c. 126, § 4, do not apply.</p>

Conteact, for coal sold and delivered by the firm of Shorey and Brickett to the defendant. Answer: 1. A general denial. 2. Payment.

<p>Equity — Decree — Amendment — Meaning of Allegation.</p> <p>When a decree on its face is consistent with law, and may have been justified by the evidence, and when it agrees with the frame and carries out the plain object of the bill, this court will not go into nice verbal criticism of the bill for the first time on appeal.</p> <p>A bill in equity was brought to restrain the defendant from disclosing processes and formulas which in his contract with the plaintiff he had agreed not to divulge to any person or corporation, and the decree recited that matrices made by the defendant from the formulas and processes “ as manufactured prior to the filing of the bill and to the hearing of the cause ” came within the agreement. Held, that the words quoted referred to one kind of matrix only, the manufacture of which was begun before the date of the bill and was continued up to the hearing, and that the allegation that the defendant’s matrix was ■ covered by his agreement was of the same scope as the decree, although the decree used the plural instead of the singular.</p>

<p>Petition for Damages for repairing Highway — Amendment— Statute.</p> <p>The Superior Court has power to allow an amendment changing a petition under Pub. Sts. c. 52, § 16, for damage to property by reason of any raising, lowering, or other act done for the purpose of repairing a way, into a petition under Pub. Sts. c. 49, § 79, for the assessment of damages occasioned by the laying out of the way, if, when the proceedings in the Superior Court were begun, the petitioner had the right to the latter remedy, and if the work relied upon in support of the amended petition was the cause of action relied upon in the petition originally filed.</p>

Contract, upon a poor debtor’s recognizance, entered into by the first named defendant as principal and by the other defendant as surety, and containing the usual conditions. Trial in the Superior Court, without a jury, before Blodgett, J., who found for the plaintiff; and the defendants alleged exceptions. The facts appear in the opinion.

<p>Bill in equity, filed June 7, 1894, for the appointment of a receiver of the defendant corporation; for the appointment of a trustee, as successor of the trustee named therein, to act under a mortgage of “ all its estate, real, personal, and mixed, of whatever nature or description, now owned or hereafter to be acquired,” given by the corporation to secure the payment of an issue of bonds, two of which were held by the plaintiff; and for a foreclosure of the mortgage. Hearing before Morton, J., who reserved the case for the consideration of the full court; such decree to be entered as law and justice might require. The material facts appear in the opinion.</p> <p>The case was argued at the bar in December, 1894, and after-wards was submitted on the briefs to all the judges.</p>

<p>Personal Injuries — Due Care — Negligence —Unsafe Appliance.</p> <p>In an action for personal injuries occasioned to an employee by the falling on him of a door set in grooves which he was lifting by main strength, it appeared that the plaintiff knew that the door was not in the condition in which it was intended to be used and that it wanted the appliance which would make it safe, and that if he had notified the defendant’s carpenter it would have been put in proper condition, but he had not notified him and it was not the carpenter’s duty to inspect the door of his own motion. Held, that the plaintiff was not entitled to demand, instead of repairs, such secondary precautions as would make it safe to use the door in an unnatural way, and that the action could not he maintained.</p>

Tort, for personal injuries occasioned to the plaintiff by an alleged defect in a highway in the defendant city. Trial in the Superior Court, before Mason, C. J., who ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Breach of Contract— Evidence — Damages.</p> <p>In an action for breach of a contract of hiring, the defendant has no ground of exception to the exclusion of evidence, upon the cross-examination of the plaintiff, offered to show that his personal reputation as to credit among dealers was so poor that he could not get credit to carry on the business in which he attempted to work after his wrongful discharge from the defendant’s service.</p> <p>In an action for breach of a contract of hiring, brought before the expiration of the contract period, the plaintiff is entitled to recover damages for the unexpired portion of such period subsequent to the time of trial.</p>

<p>Intoxicating Liquors — Evidence — Prosecution of Defendant no Bar to a Use of the Testimony in another Case — Stopping Counsel in Argument — Instructions — Silence as an Admission — Failure to call Witnesses.</p> <p>At the trial of a complaint for keeping and maintaining a liquor nuisance three police officers testified that on a certain day they visited the defendant’s tenement, and in the kitchen found four men sitting with bottles of beer, out of which they had been drinking; that the defendant was there, and that they took the bottles and beer from the men, who objected, saying in the hearing of the defendant that they had bought and paid for the beer, and that the officers ought not to take it. Held, that, if the statement was to be believed, it fairly, although not necessarily, implied that the men bought the beer there, and not that they bought it elsewhere and carried it to the defendant’s kitchen to drink it.</p> <p>The prosecution of a person for keeping intoxicating liquor with intent to sell it unlawfully is no bar to a use of the testimony in the case to prove him guilty of keeping and maintaining a common nuisance.</p> <p>At the trial of a complaint for keeping and maintaining a liquor nuisance three police officers testified to finding four men in the defendant’s kitchen, and in his presence, drinking liquor, which they took from the men under their protest that the liquor was theirs and that they had paid for it. The counsel for the defendant interrupted the district attorney in his argument that the evidence was true from the failure of the defendant to call the men as witnesses, and that it would not be safe for the government to summon them, as they were friends of the defendant and would favor him, on the ground that, until it appeared that the men were under the control of the defendant or could be produced by him, and that they knew about the case, no inference could be drawn against him, and that the government was as much under obligation to produce the men as the defendant. The judge declined to stop the district attorney in his argument. Held, that the defendant had no ground of exception.</p> <p>At the trial of a criminal case the judge instructed the jury that, if a statement was made in the hearing and presence of a person which affected his rights or was criminating to him and he remained silent, such silence was tantamount to an admission of the truth of the facts stated, provided the same was heard and understood by such person, and he was not in custody or under restraint, but at liberty to reply or explain, and provided such statement was of such a nature, and made under such circumstances and by such persons, as naturally to call for a reply. Held, that if, instead of saying that silence was “ tantamount ” to an admission, the judge had said that it was in the nature of an admission, the instructions would have been strictly accurate, but that the inaccuracy, if any, was eliminated by the jury being told that if they found the facts as contended by the government “ they would give to the circumstance such weight and significance as they thought it entitled to.”</p> <p>At the trial of a criminal case the judge instructed the jury that, if there was evidence to rebut that of the government which might be furnished by witnesses other than the defendant, and if the evidence against the defendant was such that he would be expected to call them, his failure so to do would be a circumstance to be considered and given such weight and significance by the jury as they thought it entitled to, and from which they might infer, if they thought the inference warranted and a reasonable one, that such witnesses would testify unfavorably to the defendant; but that unless it appeared that such witnesses were within the defendant’s control, and could be procured by him, the jury were to give no significance to his failure to call them. The judge declined the defendant’s request to give the further instruction that, if it did not appear that the witnesses were under the defendant’s control, the government was under the same obligation to produce the witnesses as the defendant, and that their non-production by the government was to be considered as much against it as against the defendant. Held, that the defendant had no ground of exception, especially as there were circumstances from which the jury might well have inferred that the witnesses were under the defendant’s control and could be procured by him.</p>

Complaint, for unlawfully selling intoxicating liquors. At the trial in the Superior Court, before Bishop, J., it appeared in evidence that at the time of the alleged offence the defendant was a hotel waiter in the employment of two persons duly licensed by the board of police commissioners of the city of Boston as innholders, and to sell liquors of any kind as such inn-holders to be drunk in the inn or hotel described in their license; that while acting in their employment…

Tort, for personal injuries occasioned to the plaintiff on June 1, 1898, while in the employ of the defendant.

<p>Life Insurance—Warranty in Application for Policy—“ Misrepresentation” — Statute — “ Attended ” by Physician.</p> <p>An application for a policy of life insurance stated that it was “ declared and warranted that all the statements and representations contained in ” the same were “material” and “true,” and, “ with the stipulated premiums,” should “be the sole basis of the contract ... if a policy be issued . . . thereon, and that if any concealment, or fraudulent or untrue statement or representation be made,” the policy should be void. The application contained certain questions and answers, at the end of which, and above the applicant’s signature, was the following: “I hereby warrant said answers to be true." The policy recited that, “ in consideration of the stipulations and agreements in the application herefor and upon the next page of this policy, all of which are a part of this contract,” and in consideration of the payment of the premium thereon, the company promised to pay to the beneficiary a certain sum upon satisfactory proofs of the death of the assured. Held, in.an action upon the policy, that St. 1887, c. 214, § 21, relating to the effect of a “ misrepresentation” made in the negotiation of a policy of insurance, applied to the policy in suit.</p> <p>If a person goes to the office of a physician and tells him that he has coughed and spit blood, and desires him to make a physical examination, to which he submits, receiving a prescription and paying for the physician’s services, and subsequently calls again at the latter’s office, consulting him professionally and paying him a fee, such person is “ attended ” by a physician, within the meaning of the question in an application for a policy of life insurance, “ When and by what physician were you last attended, and for what complaint ? ”</p>

<p>Life Insurance—Misrepresentation in Application for Policy — Law and Fact — Exceptions.</p> <p>In an action upon a policy of life insurance, the application for which contains an agreement that its answers and statements shall be part of the contract of insurance, and that any false, incorrect, or untrue answer shall render the policy void, whether answers and statements in the application were misrepresentations, and, if so, whether, under St. 1887, c. 214, § 21, they were “ made with actual intent to deceive,” or “the matter misrepresented increased the risk of loss,” are questions of fact for the jury.</p>

<p>Equity— Trade Name—Injunction—Breach of Agreement—Multifariousness.</p> <p>The plaintiff in a suit in equity against A. and B. was formerly in partnership with A., carrying on a law and collection business under the name of “ E. & 0.,” each owning a one-half interest in the firm. This business had been carried on under that name for twenty years, and for the last twelve years by the plaintiff and A. The plaintiff conveyed to A. his one-half interest “in the business of law and collections of the firm of F. & C.,” except as stated in an instrument of even date signed by the two, reserving to himself “the name ‘F. & C.,’ excepting as agreed in said ” instrument. In that instrument A. conveyed to the plaintiff “all his right and interest in the name F. & C., with all the printed stationery and envelopes now on hand printed in that name”; and reserved “ the right only to advertise he was lately of said firm, and to indorse checks in that name for collection or deposit only that pertain to business now in the hands of F. & 0. or their correspondents, and to collect bills now due said firm ”; and agreed to vacate the office occupied by the firm by a day named, and assign his interest in the lease to the plaintiff, who assumed the rent on the lease. The instrument further provided that all cases pending in court should remain in the plaintiff’s charge, “ subject to the right of the clients.” Immediately after this agreement was signed, A. took an office in the same building in which the business of F. & C. had been carried on, and entered into partnership with B., an attorney at law, who had formerly been employed by F. & 0. A. and B. then sent to the former clients and correspondents of F. & C. circulars announcing the dissolution of the partnership between the plaintiff and A., and the formation of the new firm of A. and B., who, “having purchased the entire interest of” the plaintiff “in the business of F. & C., . . . will continue to carry on the same business ” at the place stated; and containing the following: “ All inquiries relating to old matters formerly in the hands of F. & C. should be made of, and all communications addressed to,” A. and B. They also sent to the correspondents of F. & 0. a notice, as follows: “In all matters of business of F. & C. now in your hands, make all checks, drafts, etc. payable to the order of ” A. and B. “ only, and address all communications and correspondence to ” A. and B. This was signed “F. & C.” Held, that these facts did not entitle the plaintiff to an injunction against A. and B.</p> <p>A bill in equity to restrain the doing of certain acts, which does not allege that the defendant was continuing to do such acts when the bill was filed, shows no ground for an injunction.</p> <p>A person who was formerly in the employ of a firm, and who engages in a similar business, displaying upon his office a sign containing underneath his name the words “ late of ” the firm, will not be enjoined, if the sign is not painted in such a manner as to be likely to mislead the public.</p> <p>The plaintiff in a suit in equity against A. and B. was formerly in partnership with A., carrying on a law and collection business under the name of “ F. & C.,” each owning a one-half interest in the firm. The plaintiff conveyed to A. the farmer’s one-half interest “ in the business of law and collections of the firm of E. & C. ”, except as stated in an instrument of even date signed by the two, reserving to himself “the name ‘F. & C.,’ excepting as agreed in said” instrument. In that instrument, A. conveyed to the plaintiff “ all his right and interest in the name F. & C.,” and reserved “ the right only to advertise he was lately of said firm, and to indorse checks in that name for collection or deposit only that pertain to business now in the hands of F. & C. or their correspondents, and to collect bills now due said firm ”; and agreed to vacate the office occupied by the firm by a day named, and assign his interest in the lease to the plaintiff, who retained the office. The instrument further provided that all cases pending in court should remain in the plaintiff’s charge, “ subject to the right of the clients.” A. immediately took another office in the same building, and entered into partnership with B., an attorney at law, who had formerly been employed by F. & C. Held, that A. and B. had no right to advertise that they were -the successors of F. & 0. Held, also, that it was a violation of the agreement between the plaintiff and A. for the latter or his firm to solicit clients who had pending cases to withdraw them from the plaintiff’s control, and to turn over the management of them to B.</p> <p>A bill in equity by A. to restrain B. and C. from doing certain acts as partners, in violation of a written agreement executed by A. and B. upon the dissolution of a partnership existing between them, is not multifarious.</p>

<p>Equity — Creditor’s Bill — Interest in Partnership — Statute — 1 ‘ Debt ’ ’ —• Performance of Contract.</p> <p>Upon a bill in equity under the Pub. Sts. c. 151, § 2, cl. 11, as amended by the St. of 1884, c. 285, to reach and apply the defendant’s interest in a copartnership in payment of a debt due the plaintiff from him, the court has the power to establish the plaintiff’s debt, although he is not a judgment creditor.</p> <p>A bill in equity under the Pub. Sts. c. 151, § 2, cl. 11, as amended by the St. of 1884, c. 285, to reach and apply the defendant’s interest in a copartnership in payment of a debt due the plaintiff from him, set forth an agreement in writing made on a certain day, whereby the plaintiff sold and the defendant bought an undivided one-half interest in another partnership then existing between the plaintiff and A., for a sum named, in six months from the date of the agreement, provided the plaintiff could buy from A. his interest; and alleged the immediate purchase by the plaintiff of A.'s interest, and a notification to the defendant thereof. Held, that the bill showed that there was a “debt” due from the defendant to the plaintiff, within the statute.</p> <p>A bill in equity under the Pub. Sts. c. 151, § 2, cl. 11, as amended by the St. of 1884, c. 285, to reach and apply the defendant’s interest in a copartnership in payment of a debt due the plaintiff from him, set forth an agreement in writing made on a certain day, whereby the plaintiff sold and the defendant bought an undivided one-half interest in another partnership then existing between the plaintiff and A., for a sum named, in six months from the date of the agreement, provided the plaintiff could buy from A. his interest; that the plaintiff and defendant, on the same day the agreement was made, entered into written articles of copartnership, to continue until dissolved by the mutual agreement of the parties, which.partnership was conditional upon the purchase by the plaintiff of A.’s interest in the partnership between him and A.; the immediate purchase of tills interest and notification thereof to the defendant; and a delivery to the defendant of a bill of sale of a one-half interest in the tools and machinery formerly owned by the copartnership of the plaintiff and A., which tools and machinery constituted the whole of the property and assets of this copartnership ; and that the defendant had ever since acted as a copartner with the plaintiff, and had never demanded any further or other assignment or conveyance of the same to him. Held, that the bill showed performance by the plaintiff of his part of the contract with the defendant.</p>

<p>Will— Codicil— Construction—After-born Children.</p> <p>After appointing executors and trustees a testator gave by his will to his trustees “ as many thousand dollars as I shall have grandchildren at my decease, that is one thousand dollars to each grandchild, in trust.” By a codicil which confirmed the will “so far as this codicil is consistent therewith,” the testator directed his executors and trustees to pay to certain of his grandchildren, naming them, the sum of one thousand dollars each, within six months after his decease, “it being the amount bequeathed to them in my will_in section third.” Then follow the words, “ The clause in section three in my will is amended in this codicil so that my executors and trustees are to receive one thousand dollars for each of the children of my son, C., and invest the same,” etc. C. had three children living at the death of the testator, and two children were born subsequently. Held, that, taking the will and the codicil together, it was manifest that the testator intended to limit his bounty to his grandchildren living at his decease.</p>

<p>Railroad Accident— Grade Crossing — Ringing of Bell — Due Care — Negligence.</p> <p>In order to recover damages of a railroad company under Pub. Sts. c. 112, §§ 212, 213, for causing the death of a person at a crossing, it must be shown that the deceased was in the exercise of due care, and that the defendant neglected to sound its whistle or to ring its bell as required by Pub. Sts. c. 112, § 163, as amended by St. 1890, c. 173, § 1.</p>

<p>Promissory Note — Failure of Consideration — Breach of Contract —Right of Rescission — Waiver — Action — Corporation — Authority of Receiver — Evidence.</p> <p>A paper writing signed by A. recited a sale of land by him to B., and a receipt of part payment in cash and an agreement to give two promissory notes for the balance, and contained an express covenant to convey the land to B. by a good and sufficient deed on payment of the notes. It also provided that, if B. should fail to make the payments, A. might consider the sale void so far as the agreement to convey land to B. was concerned, and might sell the land, giving notice to B. of the time and place of sale, and apply the proceeds in part payment of the notes. The notes were given in accordance with the agreement, and were of even date therewith, and the paper and the notes were parts of the same transaction. Held, in an action by A. against B. on the notes, that, in addition to the express covenant to convey the land to B. on his making the payments, there was an implied covenant to hold the land under the contract in readiness to be conveyed at the appointed time ; and that a conveyance of the land before the maturity of the first note, which put it out of the power of A. to make a good title to B., was a breach of the contract which justified B. in rescinding it. Held, also, that a letter written by B. to the bank where the note was left for collection, stating that A. had failed to perform certain promises made when the note was given, and that until he did the things promised, “ I do not feel like paying anything more on the land,” was not a waiver of B.’s right to rescind the contract or to defend on the ground of A.'s breach of it; it not appearing that B. then knew what A. had done, nor that he intended to waive any rights, nor that A. took any action in reliance upon the letter.</p> <p>If a promissory note is given to a corporation in part payment of land, which the corporation agrees by an instrument of even date to convey to the maker by a good and sufficient deed on payment of the note, and before the maturity of the note the corporation executes a trust deed of all its real estate, including that sold to the maker of a note to secure the payment of bonds which are issued and sold, there is a total failure of the consideration for the note, and no action can be maintained thereon by the corporation against the maker.</p> <p>An appointment of a receiver of a corporation does not, apart from a statute or an order of court, make him so far the representative of the corporation that he can bring suits for it in his own name, or bind it by admissions in pais made outside of the performance of his official duties.</p> <p>A corporation sold land to A., taking his promissory note in part payment, and executing an instrument of even date by which it agreed to convey the land to A. by a good and sufficient deed on payment of the note. Before the note matured, the corporation made a trust deed of all its real estate, including that sold to A., to secure the payment of bonds which were issued and sold. In an action in the name of the corporation against A. upon the note, the defence to which was a failure of consideration, a report made by a receiver of the corporation to the stockholders, bondholders, and creditors, which did not appear to have been made in the performance of any official duty, but apparently was volunteered with a purpose to serve the interests of persons connected with the corporation, was admitted in evidence. The nature of the receivership did not appear. Reid, that the report was not admissible.</p>

<p>Tort, for personal injuries received by the plaintiff, while in the defendant’s employ, from the blow of a swinging spile. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that, on the day of the accident, he was employed by the defendant on a vessel called the Daisy, which was a barge or lighter about sixty feet in length, without motive power of its own, but fitted with a derrick and boom and accompanying block and falls, and a steam hoisting engine to operate the same; that the only persons employed on the Daisy at that time were Walter Terry, the captain of the boat, and the plaintiff, who were also the only hands belonging to that boat; that Terry was over the plaintiff, who obeyed his orders; that the Daisy was at a wharf in Fall River, and, together with another vessel called the Archer, and also belonging to and engaged in the defendant’s business, was unloading spiles about thirty-five feet in length •, that the Archer was a steam barge, and was also fitted with a derrick and steam hoisting engine similar to those on the Daisy, and on the day of the accident had a crew of five men, employees of the defendant; that the Archer came alongside of the Daisy with a load of spiles, of which six had been transferred and the remainder were being transferred from the deck of the Archer to the deck of the Daisy; that the crew of the Archer fastened a chain around a spile, then by means of the Archer’s derrick and engine raised the spile from the Archer’s deck and lowered it so as to rest transversely across the rails of the two boats, and finally fastened the'Daisy’s chain around the spile, and by means of the derrick and engine of the latter boat laid the spile lengthwise on the Daisy’s deck; that the plaintiff had nothing to do with fastening the spiles or hoisting or lowering them on either boat, except that he would occasionally lend a hand in taking hold of the spile and steadying it into place on the Daisy’s deck, and at the time was doing other things on the deck besides helping to steady the spiles; that several minutes before the accident, he was standing on the after part of the Daisy, and was sent by Terry to put some boards over an iron casting which projected four inches above the deck at about ten feet from the bow; that he then had to go the length of the boat and hunt up two pieces of board which he then fixed around the casting; that he laid the boards down, and while there, as he went to turn away, be heard some man sing out, “ Look out, Charlie ”; that he just turned his head, saw a shadow, and felt a shock, and that was all he remembered ; that when he had gone along with the boards and had put them down, he did not have time to look around to see what they were doing, and after he heard the cry of “Look out,” he did not have time to get out of the way; that when he started forward to cover the casting the men were not in the act of hoisting on board of the Daisy, and at the time he went forward they were hoisting over there, but although it was possible for him to see the hoisting he did not take notice of it; that from the time he started with the boards to the time of the blow from the spile it was three or four minutes; that he did not notice whether they were using guide ropes in the hoisting to control and direct the course of the spiles; that, if they were not using one, there was no guide rope on board either boat; that at previous times he had seen them hoisting and put on a guide rope to beep the spiles from swinging, and sometimes they hoisted without a guide rope; that he had worked on the Daisy eight or nine years; that during the last five years of that period a similar operation of transferring spiles from the Archer to the Daisy had occurred perhaps once or twice when he was present; that he knew the men came there to transfer the spiles from the Archer to the Daisy, and that they were going to hoist them with those derricks; that the work of hitching the spiles on to the derrick and of hoisting them was in his plain view when he was looking at them; that he knew they were going to lift the timber when they got ready, and everybody was out of the way, and did not suppose that they were ready to start when they did; that the work of transferring the spiles previously begun and carried on had been suspended while some old lumber was being removed from the Daisy’s deck to make room for additional spiles; and that the work of transferring the spiles did not begin again until he started forward.</p> <p>William F. Bennett testified for the plaintiff that he was captain of the Archer on the day of the accident, and saw the accident happen; that the plaintiff was within three or four feet of the smoke-stack; that the end of a spile thirty-five feet in length struck the plaintiff between the shoulders, knocking him down and breaking his leg; that the spile was hung on the Daisy’s boom, and no guide rope was used; that the spile swung very near the place where it was intended to swing, but caught against the ratlines on the rigging of the Daisy, and caused the end to lift a little, and so fell upon the plaintiff; that, to the best of his recollection, the plaintiff had turned away from the smoke-stack when struck, and was about sidewise to the spile; that there was nothing to obstruct his view from the spile, if he had looked that way; that from the time the spiles began to be chained on the derrick until the signal was given to hoist, it was two or three minutes, and that the hoisting itself occupied about a second; that the defendant had no storehouse where he kept appliances, tools, and ropes, except on board the boat; and that there were plenty of ropes on board the boat.</p> <p>Robert Nicholson, after having been qualified as an expert in the manner of the use of derricks and the hoisting of timbers, particularly on barges similar to the Daisy, was asked the following question: “Whether or not, having heard the derrick described, a derrick equipped as this was, without a guide rope, is a safe and proper derrick to raise spiles of that kind?” and answered, “No.” The defendant objected to the question and answer, but they were admitted; and the defendant excepted. The witness then testified as to what a guide rope consisted of, and that there ought to be a hook attached to it; that properly it ought to be fastened to the hook in the block when raising a stick of timber like the spile; and that the guide rope was to keep the stick from going away from where it ought to go.</p> <p>The same witness was also asked the following question: “What would be the usual and proper way of attaching a guide rope there? ” referring to the hoisting on the Daisy. To which he answered: “ To take that hook, and hook right into the block to keep the boom and fall from swinging too fast after it is raised from its bearing.” This question and answer were admitted, against the defendant’s objection; and the defendant excepted.</p> <p>Walter D. Terry testified for the defendant that he had been engaged in the business thirteen years; that he did not use a guide rope for hoisting spiles when two vessels were side by side; and that they considered it safer without them.</p> <p>At the close of the evidence, the defendant asked the judge to direct a verdict for the defendant, upon the ground that the plaintiff had failed to offer sufficient evidence of his due pare; but the judge refused so to do.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract upon two promissory notes, and for money had and received.</p> <p>'At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the plaintiff; and the defendant filed a motion for a new trial, on the ground that the verdict was against the evidence and the weight of the evidence, but failed to deliver a copy thereof to the plaintiff’s attorney, as required by Rule 46 of that court. The defendant subsequently filed another motion to set aside the verdict, and for a new trial, on the ground of newly discovered evidence, and also filed in support of the latter motion the affidavits of. Abraham Bilafsky, Thomas P. Kennedy, Morris Fleischer, and Louis Goldsmith, respectively. Bilafsky stated that he was a witness at the trial, and that in his testimony he unintentionally made a mistake in regard to the facts” which he testified to, and gave the particulars as to which his testimony was incorrect. The other affiants were not witnesses at the trial, Fleischer and Goldsmith deposing as to certain conversations had with the plaintiff after the trial.</p> <p>The two motions were heard together, and the defendant offered no excuse for failing to produce the witness Kennedy at the trial, except that the importance of his evidence had not been anticipated. The plaintiff objected to the allowance of the first motion, on the ground that no copy of the motion had been delivered to him, as required by Rule 46 of the court; and the judge for that reason took no action on this motion.</p> <p>The plaintiff also objected to the allowance of the second motion, because the affidavits contained no legal ground for setting aside the verdict and ordering a new trial; because the affidavit of Bilafsky contained no new evidence, but only a change of testimony on a point on which the witness had been fully examined and which had been called to his attention at the trial; because the point was not material to the issue in the case; because the new testimony, as offered by the affidavit, was in direct contradiction of the defendant and of the other witnesses offered on his behalf, and was cumulative, and tended to corroborate the plaintiff’s evidence; because the new evidence offered in the affidavit of Kennedy was in direct contradiction of the defendant and of the other witnesses offered on his behalf; and because the failure to produce the witness at the trial was in no way accounted for or excused. The judge overruled the plaintiff’s objections to the allowance of this motion, ruled and found that the affidavits showed legal grounds for ordering a new trial; and for that reason alone set aside the verdict and ordered a new trial, but said that on the affidavits of Fleischer and Goldsmith alone he would not grant a new trial. The plaintiff alleged exceptions.</p>

<p>Levy— Officer's Return on Execution — Service on Debtor — Posting of Notification — Validity of Sale — Statute —1 ‘ Equity ” — “ Lands’ ’ — Variance —Amendment.</p> <p>An officer’s return on an execution levied upon land of the debtor contained the following recital: “ I gave notice in writing to the within named judgment debtor of the time and place of sale by leaving the same at her last and usual place of abode, and by mailing a like notice to her address, as described in said execution, in a securely sealed envelope, fully prepaid.” Held, that this return satisfied the requirements of Pub. Sts. c. 172, § 46, and showed sufficiently, (in the absence of evidence to the contrary,) that the place of service was within the officer’s precinct, and was the last and usual place of abode of the debtor.</p> <p>Under Pub. Sts. c. 172, § 29, providing that the officer shall give notice in writing to the debtor of the time and place of the sale of land on execution, and “ shall also cause notifications thereof to be posted up in some public place in the city or town where the land lies, and also in two adjoining cities or towns if there are so many in the county,” the posting of one notification in the town where the land lies is sufficient.</p> <p>The recital in an officer’s return upon an execution, that he took “ all the right in equity ” which the debtor then had “ to redeem the following described mortgaged real estate,” does not invalidate a sale of the land upon the execution, although at the time of the levy there had been no breach of the condition of the mortgage.</p> <p>The word “ lands,” in an execution directing the officer to cause the debt to be satisfied “ of the goods, chattels, or lands of the said judgment debtor,” embraces any interest authorized by the law to be taken.</p> <p>If an execution issued upon a judgment recovered by the plaintiff as executor recites a recovery by him personally, and it appears from the record that this defect is merely a clerical error, an amendment will be allowed as of course from the record without other evidence, and the execution may be treated as amended in the trial of a writ of entry to recover land sold on the execution.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, by the widow of John Mears, for causing his death. Trial in the Superior Court, before Dunbar, J., who, at the defendant’s request, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for- personal injuries occasioned to the plaintiff while alighting from a train of the defendant in the station at Lynn, on the evening of December 29, 1892. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the defendant, and the plaintiff alleged exceptions, the nature of which sufficiently appears in the opinion.</p>

<p>Personal Injuries — Master and Servant — Assumption of Risk — Negligence — Evidence.</p> <p>If a person who voluntarily undertakes to whitewash the walls and ceiling of a card-room in a mill while the machinery is in operation, and who has been specially cautioned to look out for the pulleys and shafting, receives injuries which cause his death by coming in contact with a revolving shaft, as a result apparently of losing his balance while at work standing upon an elevated staging, no action can be maintained, either at common law or under the employers’ liability act, St. 1887, c. 270, for his injuries; and it is immaterial that there was a key way in the end of the shaft which made it more likely to catch his clothing than a plain shaft, the shaft being in the same condition when he was hurt as when he began to whitewash the room.</p> <p>In an action for personal injuries occasioned to the plaintiffs intestate while in the defendant’s employ, by coming in contact with a revolving shaft having a key-way in the end, the evidence of a witness called as an expert to show that a keyway in a shaft enhances the ordinary dangers of a revolving shaft is properly excluded.</p>

<p>Personal Injuries — Due Care — Negligence—Explosion caused by Torch held • by Fellow Workman.</p> <p>An employee cannot recover for personal injuries received while painting the inside of a tank by the explosion of gas generated by the varnish used by him, wbicli explosion was caused by a lighted torch held by a fellow workman at the employee’s suggestion, if there is no evidence that the varnish was different from what the employee had used for twelve years, or that the employer knew of any difference, or that he contemplated the use of a torch.</p>

<p>Personal Injuries — Duty and Liability of Keeper of Livery Stable in furnishing Horse — Inference of Knowledge of Viciousness of Horse.</p> <p>It is the duty of the keeper of a livery stable to furnish .to a hirer a horse which does not have a vicious habit of running and kicking, and if he knows of the existence of such habit in a horse, or if, by the exercise of reasonable care to ascertain whether the horse was suitable for the use of hirers, he ought to have known that it was dangerous, he is liable for such injuries as result from his wrongful conduct.</p> <p>If the keeper of a livery stable lets to a hirer a horse somewhat advanced in years, which he has owned for more than a year, and which has long had a habit frequently manifested of viciously kicking and trying to run away when started for home after having been out for a considerable time, and this viciousness has been known before the owner bought it to persons who never owned the horse, in an action against the owner for injuries occasioned by the viciousness of the horse to the hirer, who was free from fault and in the exercise of due care, the jury will be warranted in inferring knowledge on the part of the defendant of such viciousness.</p>

<p>Petition, for the assessment of damages caused by the laying out and construction of a way called Governor Avenue in the defendant city over land of the petitioner, which was a stone quarry, including damages to his remaining land. At the trial in the Superior Court, before Mason, C. J., the jury returned a verdict for the petitioner; and the respondent alleged exceptions, which appear in the opinion.</p>

<p>Malicious Prosecution — Exceptions — Pleading — Action.</p> <p>If an action for malicious prosecution is brought to this court by exception to the refusal of a ruling that, upon all the evidence, the plaintiff cannot maintain his action, and the bill of exceptions only purports to set forth all the evidence showing that the defendant acted in or controlled the prosecution, and not all the evidence in the case, that point alone will be considered, and the question whether the plaintiff failed to make out a want of probable cause is not open.</p> <p>If all the counts of a declaration are for the same cause of action, it will not avail the defendant to have some of them held to be bad or unsupported so long as one stands.</p> <p>It is not a defence to an action for malicious prosecution that a third person swore to the complaint, if he acted in good faith on the defendant’s information, and the defendant intentionally induced him so to do.</p>

<p>Intoxicating Liquors —Evidence — Exceptions.</p> <p>At the trial of a complaint for keeping a liquor nuisance evidence was introduced that four men drove up to the defendant’s house; that one of them entered and then returned with a bottle, from which they all drank; that one of them went back and came out with the bottle filled again; and that the defendant accompanied him as far as the piazza and stood there as they drove away. It did not appear from the bill of exceptions that this was all the evidence in the case. Held, that it could not be said that the evidence was inadmissible; it might have been made competent by other evidence; although the court did not mean to intimate that, if it stood alone, it would be incompetent.</p>

<p>Oleomargarine — Statute—Repeal — Constitutional Law.</p> <p>Oleomargarine artificially colored by annatto so as to cause it to look like yellow butter produced from pure unadulterated milk, or cream from the same, is within the prohibition of St. 1891, c. 58, § 1, which statute has not been repealed, and is constitutional and valid as applied to oleomargarine so colored.</p>

<p>Confession — Evidence.</p> <p>At the trial of a criminal case it appeared that the defendant had a conversation at the police station with the chief of police, who, before testifying as to the conversation, testified that no inducement or promise was held out to the defendant and no threats were made, and that the defendant said what he did freely and voluntarily; and the exceptions recited that “ full and appropriate instructions were given to the jury.” Held, that the defendant had no ground of exception.</p>

<p> Petition in Insolvency against Corporation—Statute—Dissolution of Attachment. </p> <p>A petition in insolvency cannot be maintained against a corporation which failed to dissolve an attachment within the time provided in Pub. Sts. c. 157, § 136, but dissolved the same before the actual filing of the petition. Knowlton, J. dissenting.</p> <p>The attorney of an attaching creditor has authority to release the attachment, and a paper addressed to the register of deeds reciting that the attachment is dissolved and requesting that such fact be noted on the record of attachments, signed by the attorney, and delivered to the debtor’s attorney for the purpose of dissolving the attachment, has the effect to dissolve it at once, and before the entry is made on the record.</p>

Tort, against David B. Gurney and Charles P. Slack, co-partners as C. P. Slack and Company, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendants. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows. The defendants at the time of the injuries complained of, and for some time before, were the proprietors of certain mill property in Whitman, where all the parties resided.

<p>Tort, for personal injuries occasioned to the plaintiff in the State of New Hampshire, while in the defendant’s employ as brakeman, by the breaking of a stake inserted in the defendant’s freight car.</p> <p>Trial in the Superior Court, before Richardson, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, the material portions of which appear in the opinion.</p>

<p>Trademark— “ Dover ” — Patent — Trade Name — Statute — Unfair Competition — Equity.</p> <p>A word which might become a valid trademark when applied to an unpatented article may not be so when applied to a patented article.</p> <p>Where one who has a patented article gives to it and puts upon it a name, and calls it by that name and by no other, and it becomes known to the trade and to the public exclusively by such name, then, as a general rule, the right to the exclusive use of the name ceases with the termination of the exclusive right to make and sell the article.</p> <p>A person who has used a name as descriptive of a patented article, but in which he has no trademark, is not entitled, after the expiration of the patent, to protection under Pub. Sts. c. 76, § 1, providing that trademarks are not to be used without the consent of the owner.</p> <p>If a person has used a name as descriptive of a patented article, and not as a trademark, he cannot maintain a bill in equity, after the expiration of the patent, to restrain the use of the name by another person upon an article made by the latter, on the ground that he is injuring the plaintiff by unfair competition, merely by showing that the defendant is making and selling an article similar in kind and under the same name as that of the plaintiff.</p>

<p>Personal Injuries — Street Railway—Negligence— Action.</p> <p>An action cannot be maintained against a street railway corporation for personal injuries occasioned to a passenger in its car, on the ground that it ought to have avoided a runaway horse and herdic attached which ran into it and did the damage, as it was making a sharp turn into a street on the opposite side from the street down which the carriage came, and the driver of the car was stopping for passengers on his side; it being conjecture whether he knew that the carriage was coming.</p>

<p>Damages to Vessel — Evidence of Time of Tide.</p> <p>In an action for damages to the plaintiff’s schooner caused by grounding in a dock in F., where it was to deliver a cargo of coal to the defendant, under a bill of lading stipulating that fifteen feet of water at high water or an ordinary tide were guaranteed, the plaintiff alleged that the grounding was due to the want of the guaranteed depth of water, to which the defendant replied that the schooner did not come in until the tide had fallen. It appeared that the accident happened between a quarter to seven and seven o'clock in the morning. The defendant, for the purpose of proving that high tide on that morning at P., which was fifteen miles from F. in a straight line and more by water, was at half-past five o’clock, offered in evidence an automatic register of a tide gouge kept by the city of P. and used by the United States in calculating the tides. This evidence was excluded; but the expert who produced the register was allowed to testify, from his data as to the tide in P., to a time of high tide in F., and he fixed it between twenty and thirty-eight minutes past five. There was other evidence that, under conditions like those testified to on the morning in question, the difference in the time of high tide at P. and F. would not be more than five or six minutes ; and direct evidence of the state of the tide at F. was put in by both parties. Held, that it could not be said that the ruling excluding the evidence offered was wrong.</p>

<p>Contract — Administrator — Action — Set-off — Promissory Note — Unauthorized Indorsement by Wife of Husband’s Name — Ratification by Administrator of Husband’s Estate.</p> <p>If A. and B. execute a contract, by the terms of which A. is to deliver goods manufactured by him to B., who is to make certain advances of money, and A. dies before the contract is fully performed, and his estate is insolvent, and the administrator of his estate makes an agreement with B. to deliver the goods on hand pursuant to the contract with A., and B. is to account to and pay the administrator for the goods so delivered without regard to or giving any credit for the advances made by B. previously to A.’s death, the administrator may maintain an action in his individual capacity against B. for the goods delivered under the agreement, and B. is not entitled to set off a claim against A.’s estate for advances made to him under the contract.</p> <p>If the wife of a payee of a promissory note in good faith indorses the note in his name without his authority, he being unconscious by reason of illness, and the note, having been indorsed also by a third person for the payee’s accommodation and at the wife’s request, is discounted, and its proceeds go into his estate before his death, and the maker pays the note at maturity in ignorance of the nature of the indorsement, the administrator of the payee’s estate may ratify the act of the wife in so indorsing the note.</p>

Contract, to recover sixty-nine cents, the amount of a fare on the plaintiff’s railroad between Boston and Franklin. Trial in the Superior Court, without a jury, before Bond, J., who allowed a bill of exceptions, in substance as follows. Edwin G. Cowell testified that he was a conductor in the plaintiff’s employ; and that he was the conductor on the train leaving Boston at six o’clock in the evening of May 26, 1893, and had been running on that train about three or four days.

<p>Tort, for personal injuries occasioned to the plaintiff by an alleged defect in an elevator in a building owned by the defendants in Boston.</p> <p>Trial in the Superior Court, before Richardson, J., who, upon all the evidence, ruled that the plaintiff could not recover, and directed a verdict for the defendants; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Trover — Demand — Waiver — A ction.</p> <p>A. delivered a desk to B. under an agreement for purchase on the instalment plan, by which A. had the immediate right of possession on B.’s failure to make the specified payments. B. fáiled to make these payments. C. attached the desk in a suit against B., and told the officer to put the desk “ where they would not know where it was.” 0. had also said that A. had been trying to get a desk, but he had' got it put away where A. could not find it. Held, that, upon these facts, A. could maintain an action for the conversion of the desk by C. without proof of a demand.</p> <p>If A. delivers property to B. under an agreement for purchase on the instalment plan, by which A. has the immediate right of possession on B.’s failure to make the specified payments, and the property is attached and taken from B.’s possession by C. in a suit against B., who thereupon declines to make any payments until the property is returned to him, and A. then replevies and returns the property to him, this does not show a waiver of A.’s right of possession for non-payment by B.</p> <p>It is not necessary, in order to maintain an action of trover, that the defendant should have it in his power, at the time the action is brought, to give up property which he previously has converted to his own use.</p>

<p>Contract, upon a poor debtor’s recognizance, entered into by Porter A. Underwood as principal and John F. Simmons as surety. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, which recited that the plaintiff was entitled to recover judgment against the defendants for the penal sum of the recognizance sued on unless the following facts entitled the defendants to a finding in their favor, in which case judgment was to be entered for the defendants.</p> <p>Subsequently to the arrest of the defendant Underwood on the original execution, where the defendant Simmons went surety, as declared on by the plaintiff, the plaintiff on November 24,1893, caused the arrest of Thomas Smythe, another of the judgment debtors named in the original judgment, on an alias execution, and Smythe was duly committed to jail on said last named day, having declared before a judge of the Municipal Court of the City of Boston, that he did not desire to take any oath, or to recognize in any manner.</p> <p>On August 3, 1894, the plaintiff, as appeared by indorsement on the execution, declined to pay any support for Smythe after said August 3, and the further indorsement of the jailer appeared thereon bearing date of the following day: “ The within named debtor, Thomas Smythe, having claimed support as a pauper, the within named judgment creditor therefore ordered his discharge from imprisonment, under section 46 of chapter 162 of the Public Statutes', and I have discharged said Smythe from imprisonment.”</p>

<p>Tort, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by having his hand crushed in a pile-driver. The declaration contained two counts, the first of which was at common law, and the other under the employers’ liability act, St. 1887, c. 270. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Personal Injuries — Employers’ Liability Act — Negligence — “ Ways, Works, or Machinery ” — “ Superintendence ” —Law and Fact.</p> <p>If there is no defect in the material, plan, or construction of a staging, the presence of a stone upon it, by the falling of which personal injuries are occasioned to a workman, is not a defect in ways, works, or machinery within the meaning of St. 1887, c. 270.</p> <p>While, in an action for personal injuries occasioned to the plaintiff by the falling upon him of a ledge stone from a staging near which he was working, the jury might have found that the sole or principal duty of the defendant’s foreman was that of superintendence, they were rightly directed to return a verdict for the defendant if the evidence did not justify a finding that the foreman was negligent in not discovering that the ledge stone was so placed as to be liable to fall.</p>

Indictment, in two counts, charging the defendant, in the first count, with breaking and entering the dwelling-house of Edward S. Tead in the night-time, with intent to commit larceny, and with being an habitual criminal, four convictions, sentences, and committals to the state prison of this Commonwealth for terms of not less than three years each being set forth in the indictment; and in the second count, with attempting to break and enter in the night-time said…

<p>Way — Deed — Reservation ■— Injunction—Damages.</p> <p>A., who owned land upon a public street, erected thereon a long wooden block of tenements facing on the street, and, in the rear and south of the block, several houses, and laid out a driveway running east and west between the rear of the block and the front of the houses, and also passageways at the east and west ends of the block leading from the driveway to the street. These ways were intended by A. as passageways or driveways to and from the street, and were in actual use by owners, tenants, and others having occasion so to use them, when A. conveyed one of the houses to B., by a deed which bounded the land in part as “ running north ... to a driveway, thence easterly on said driveway,” and which also contained the following reservation: “Reserving that the said driveway between said houses as now laid out shall remain open and common to all parties having right to enter therein.” B., when he took his deed, gave back to A. a mortgage which contained the same description and reservation as in the deed. A. then conveyed the block above mentioned to C. by a deed describing the land in part as “ running south ... to a driveway running in rear of said lot to be conveyed; thence turning by said driveway east ... to a driveway, . . . reserving hereby all rights of passage as now laid out in the driveways and passageways connected with said premises, and the same are never to be closed or obstructed while said premises remain as now laid out, except the parties now or hereafter owning the surrounding premises mutually agree to alter and rearrange the same.” The mortgage given by B. to A. was subsequently foreclosed by D., the son of, and acting as agent for, A., who made to D. a mortgagee’s deed, under the power of sale contained in the mortgage, of the entire premises described in B.’s deed; and afterwards D., by A.’s direction, conveyed a portion of the premises to his brother, and another portion to his father, retaining the balance in himself. Held, that it would seem that B. took to the centre of the driveway in fee, with a right of way over the other half, the half belonging to him being subject to a similar right of way on the part of all persons having the right to enter upon the driveway; but that, if this were not so, there passed, as appurtenant to the premises conveyed to B., an implied right to use the ways, and that this appertained to every portion of the premises so conveyed. Held, also, that a subsequent grantee of C.’s land had no right, under the reservation in O.’s deed, as against D., to close up the driveway in the rear and the passageway at one end of the block without D.’s consent.</p> <p>A. acquired, either by grant or as appurtenant to his land, a right of way over a driveway to a public street. B., who owned land abutting on the way, obstructed a part of the way by the erection of a fence. A. thereupon brought a bill in equity against B. for an injunction and for damages. During its pendency B. erected another fence which wholly obstructed the way. The judge who heard the case found that no loches were attributable to A. in bringing the suit, or in asserting his rights; that the fence could be easily removed, and without great or disproportionate injury and loss to B.’s property; and that it was the obvious intention of B. to prevent A. from using the way as originally located, and to appropriate the same to the uses and purposes of his premises, to the permanent exclusion of A. therefrom for use as a passageway from his premises to the street. Held, that A. was entitled to a mandatory and perpetual injunction for the removal of the obstructions, and to nominal damages.</p>

<p>Private Drain in Private Way—■■Authority of Board of Health — Statute.</p> <p>Where a nuisance is artificially created by emptying the sewage of dwelling-houses through a private drain in a private way upon abutting private land, there is no right in the board of health of the town to extend the private drain through such private land to a brook thereon, and to clean out the brook that it may be used to carry off the sewage.</p>

<p>Tort, for an alleged libel contained in the following words, published in a newspaper called The Evening Star, on March 23, 1893, in Lowell, which newspaper was owned and published by the defendants: —</p> <p>“ Brutal Treatment of Cows. This morning a Star reporter took a drive out to Chelmsford to see some cattle with Agent Drury of the Humane Society; they went out past the poor farm and stopped at the place of Mr. Loker, who keeps or tries to keep ten head of cattle and four horses in a barn that looks like a hencoop, for there is really as much space between the boards as the boards are wide. ' It is a wonder that the cattle that have been stabled there this winter haven’t frozen to death. To-day is not as cold as it has been this winter, but one should jump around rather lively to keep warm in the structure. Mr. Loker explained it all by saying that he built the barn.</p> <p>“ Mr. Loker has peculiar views in regard to the care of cattle. He says they need no better food than hay, and he does n’t believe in giving them anything' else, and the cows show the result of that peculiar method, as they are as thin as the stanchions that hold them. Besides this, they are suffering from a mange and from lice. These plagues taken together have eaten the hair and flesh off portions of nearly all of them. Mr. Loker when questioned about this said he knew they had the mange, but he did n’t know anything about the lice. The cows and horses that belong to him have n’t been cleaned for some time, and this, together with the disease, the exposure and want of food, makes the poor animals suffer terribly.</p> <p>“ Mr. Drury warned Loker that if he didn’t clean the animals he would prosecute him. The condition of the cows is such that one can pluck a fistful of hair from them without the cow showing by any action that she has felt it. When this hair was examined it was found thick with lice. One cow has a space on her hip a foot square entirely bare of hair. This is the worst case Mr. Drury has ever seen, and he intends to follow up others of these farmers who maltreat their cattle.”</p> <p>The answer was: 1. A general denial. 2. That the publication was true.</p> <p>At the trial in the Superior Court, before Sheldon, J., the jury returned a verdict for the plaintiff, and the defendants alleged exceptions, in substance as follows.</p> <p>After the reading of the pleadings and the opening of the case, the defendants requested the judge to rule that the publication was not actionable. The plaintiff contended that the question could be raised only upon demurrer. The judge refused to rule as requested by the defendants, and ruled that the article was not libellous in charging the plaintiff with furnishing insufficient food, and that he would submit the case to the jury to try whether the article was fairly to be understood as charging the plaintiff with cruel treatment of his cows by unnecessarily failing to provide them with sufficient shelter or protection from the weather, and the further question whether the libel also referred to and charged cruel treatment by failing to furnish sufficient shelter during the winter preceding the date of the libel; and the defendants excepted.</p> <p>Under the defendants’ plea of justification they introduced evidence tending to show the condition of the barn upon the day when the article complained of was published, in that it contained large cracks in its boarding. The plaintiff, in rebuttal, offered testimony tending to show that the cracks in the boarding of the barn prior to the date of the publication complained of, from the early fall to the first day of March, were covered up with hay so that the wind and cold did not penetrate the barn. To the admission of this evidence the defendants objected. The judge overruled their objection and admitted the evidence, instructing the jury that such evidence would not be competent unless they found that the libel covered the period previous to the publication of the article; and to this ruling the defendants also excepted.</p> <p>Witnesses for the defendants testified that on the date of the libel they visited the barn, and that it was cold. The plaintiff, in rebuttal, was allowed, against the objection of the defendants, to ask certain witnesses who had visited the barn and made an examination on and about the date of the publication, the following question: “ State whether or not the barn was cold or warm.” Each of the witnesses answered that it was warm. To the admission of these questions and the answers given thereto the defendants also excepted.</p>

<p>Personal Injuries — Railroad—Passengei Negligence — Action.</p> <p>One who, without the knowledge of any of the trainmen or servants of a railroad corporation, endeavors to get upon a train which has stopped for the purpose of discharging passengers at a station where it is not accustomed to stop for the purpose of receiving them, does not thereby become nor acquire the rights of a passenger, although he has a ticket, and cannot recover damages from the corporation for an injury caused by the sudden starting of the train while he is so endeavoring to get upon it; no negligence on the part of the corporation’s servants being shown.</p>

<p>'ll for Instructions — Claims as to which Executors have no Duty to perform. — Devise and Legacy — Continuance of Trust—Rights of Life Tenants — Vested Interest in Income.</p> <p>le claim of legatees as to the disposition to be made of certain property on the happening of a certain event will not be considered under a bill for instructions brought by the executors of the will, if on the claims made the executors have no present duty to perform with respect thereto.</p> <p>A testator directed by will that his executors should take charge of his estate on S. Street, and that “ so much of the income from this S. Street estate as shall be needed for the payment of the taxes of my real estate and the interest on the mortgage upon said S. Street property shall be used for such taxes and interest, until the estate is disposed of by my executors, . . . and any surplus income shall be used by my executors in reducing the mortgage upon this S. Street estate; . . . Said executors are to keep all the said premises in good repair and pay all taxes levied upon the same, and the net income therefrom shall be equally divided between the heirs of my mother, L., and my wife, E.” The mortgage having been paid off, there was income from the estate in the hands of the executors. The principal provisions of the will in favor of the wife were for her life, and the will gave the executors no power to dispose of the above mentioned estate. Held, that the trust was to continue during the life of E., and that she took one half of the net income.</p>

<p>Insolvent Debtor — Corporation — Statute —• Laches — Assignment of Property for Benefit of Particular Creditors — “ Fraudulent Conveyance.”</p> <p>Proceedings in insolvency against a corporation, under Pub. Sts. c. 157, § 136, are not required to be begun within ninety days from the act relied on, as provided by § 112 in the ease of similar proceedings against a person.</p> <p>A delay of nearly six months in beginning proceedings in insolvency against a corporation, under Pub. Sts. c. 157, § 136, based upon an assignment by the corporation of all its property for the benefit of particular creditors as a fraudulent conveyance, when the creditor “ had full knowledge that the assignees were working in good faith ” under the assignment, is not, in the absence of special circumstances and of statutory limitation, loches as matter of law.</p> <p>An assignment of all its property by a corporation for the benefit of such creditors as shall execute the instrument within thirty days from its date, or within such further time, if any, as the trustees shall allow, is a “ fraudulent conveyance,” within the meaning of Pub. Sts. c. 157, § 136, and a sufficient foundation for insolvency proceedings against the corporation.</p>

<p>Contract, in three counts. The first count was against-the defendant as maker, and the second count was against him as indorser, of a promissorymote for $1,836.17, dated June 1,1891, payable one month after date to his order, signed by M. B. C. Carson, who was the defendant’s wife, and also signed and indorsed by the defendant. Payments were also indorsed on the notes amounting to $1,250. The third count was upon an account annexed for goods sold and delivered. Writ dated January 2,1892.</p> <p>Trial in the Superior Court, without a jury, before Braley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to show that Mary B. C. Carson, the wife of the defendant, had for some years prior to December 15, 1891, and for a time thereafter, - carried on business in Brockton on her sole and separate account; that during this time she from time to time bought of the plaintiffs goods which were used by her in carrying on this business; that goods so bought were charged directly to her on the plaintiffs’ books, and were sold on her sole and exclusive credit; that from time■ to time promissory notes were given by her to the plaintiffs for goods so sold; that on June 1, 1891, she owed the plaintiffs on her notes then overdue and on her account for merchandise the sum of $1,836.17; that on that day the note declared on was given; that on December 15, 1891, she owed the plaintiffs on open account for merchandise the sum of $835.64; that .on that day, and never before that time, a certificate in due form that she was a married woman, and as such proposed to carry on business on her sole and separate account, was duly' recorded in the city clerk’s office in Brockton; and that on December 16, 1891, she gave to the plaintiffs. her individual note for said sum of $835.64, and the plaintiffs. receipted their itemized account of merchandise to that amount as follows: “ Settled by note one month from December 16, 1891. C. A. Browning & Co.” It also appeared that at the time of taking the note and receipting the account the plaintiffs did not know that such certificate was so recorded; that they first learned this fact one or two weeks afterwards, and after this action was begun; that on January 5, 1892, the plaintiffs sent Mrs. Carson a written notice that “ we repudiate the said note as payment in any sense of your indebtedness to us,” and that they had no intention of “ releasing any security we held therefor, or, by accepting said note, of losing or waiving or releasing any rights against your husband ”; that the note was not then tendered to her, and no tender thereof was made to her until, at the time of the trial of this case, the note was tendered her in open court; that she at no time assented to such repudiation or cancellation, or accepted said tender, but refused to accept the same and contended that the note paid the open account; that on January 6,1892, on her petition, she was adjudged an insolvent debtor, and made a composition offer of twenty-five cents on the dollar to her creditors; that the plaintiffs, in the insolvency proceedings, duly proved their account for merchandise sold to her, being the same account for which the notes of June 1, 1891, and December 16, 1891, had been given, as reduced by the payments made, as appears by the indorsements on the note, and on the account annexed and signed, agreeing to accept the offer in composition, and assenting to her discharge in insolvency upon payment of the amount thereof; that the composition offer was duly paid, and the plaintiffs received the sum of $365.29 as their part thereof, and she was duly discharged in insolvency; and that the defendant was during the whole time living with his wife and knew of these various transactions between her and the plaintiffs, and was present with her when she signed the note dated December 16, 1891, and gave it to the plaintiffs. There was no evidence tending to show that the note dated June 1, 1891, was ever protested for non-payment, or that any notice that it had not been paid was given to the defendant by the plaintiffs.</p> <p>The defendant presented numerous requests for rulings not material to be stated.</p> <p>The judge found that at the date of the writ the note declared on amounted to $627.23, and the account amounted to $835.64, making a total of $1,462.87; and that the payment to the plaintiffs of $365.29 left a balance of $1,097.58, which, with interest to the day of the finding, amounted to $1,170.38.</p> <p>The judge also found the following facts. Mary B. C. Carson, during the year 1891, up to and including December 15, carried on business in Brockton, buying goods of the plaintiffs from time to time, the goods being used by her in carrying on said business. ' These goods were sold by the plaintiffs directly to her, charged to her on their books, and sole and exclusive credit was given to her. During this time the defendant was her husband, lived with her, and knew about hen business relation with the plaintiffs. Neither she nor the defendant filed or recorded a certificate that she was a married woman, and as such proposed to do business on her sole and separate account, until December 15, 1891, when such certificate in due form was recorded in thé office of the city clerk of Brockton.</p> <p>On June 1,1891, she was indebted to the plaintiffs in the sum of $519.05 on merchandise account, and $1,517.14 on notes that were overdue. She paid $200 on the gross amount, leaving a balance due to the plaintiffs of $1,836.17. She and the defendant on that day gave the, note, declared on to the plaintiffs; and the defendant indorsed the same in blank. The note was complete as to signatures when delivered. On December 15, 1891, she was indebted to the plaintiffs in the sum of $835.64 on merchandise account, being goods sold to her on. her own credit. On December 16,1891, the plaintiffs received from her a promissory note dated that day for the same amount; this note was. signed by her alone, An itemized account for that amount was receipted at the same time and given by the plaintiffs to the defendant. The form of the receipt was: “ Settled by note one-month from December 16,1891. C. A. Browning & Co.” At the time of taking the last note and receipting the account, the plaintiffs did not know that a certificate had been filed by her on December 15,1891.</p> <p>On January 5, 18.92, having found that such certificate, had been filed, and after consulting counsel, the plaintiffs notified her that “ we repudiate the said note as payment in any sense of your indebtedness, to us.” This notice was in writing, and stated, in substance, that the plaintiffs, at the time of. taking the note, did not know of the filing of the certificate, and that there was “ no intention of releasing any security we held therefor, or by accepting said note of losing or waiving or releasing any rights against your husband.” The note, at the trial of this case, was tendered to. her in open court. She at no time accepted such cancellation or repudiation, and contended that the open account was paid by the note.</p> <p>On January 6, 1892, on her petition, she was adjudicated an insolvent debtor, and thereafter made a composition with her creditors of twenty-five cents on the dollar. The plaintiffs did not prove either note against her estate, but received the sum of $365.29 on their claim ; and she was duly discharged therefrom. This sum of $365.29 is all that the plaintiffs have received from. her or from any source on account of her indebtedness to them since December 16, 1891.</p> <p>It had been the practice of the parties during their business relations from time to time, on the one side to give notes for accrued indebtedness and on the other to take the notes, receipt the open account, and thereafter rely upon the note or notes. The transaction of December 16 did not differ from previous transactions between the parties, and the giving of the note and the receipting of the open account was payment by note of that account, and was at the time so understood and acted on by the plaintiffs and Mrs. Carson. The defendant was present at the time, and no fraud or deceit was practised by the defendant or his wife on the plaintiffs at the time to induce the plaintiffs to take the note and receipt the account. When the note declared on became due it was not protested, and no notice of the failure of Mrs. Carson to pay the same was given to the defendant.</p> <p>The judge refused to rule as requested, and ruled that, under the first count of the declaration, the defendant was liable on the note as maker, and as between him and the plaintiffs it was a valid contract; and that, under Pub. Sts. c. 147, § 11, the liability of the defendant and his wife to the plaintiffs was several, and not joint, and the giving of the note by her to the plaintiffs, the same not having been paid, did not relieve the defendant from his statutory liability to pay the open account declared on in the third count of the declaration; and found and ordered judgment for the plaintiffs on the note and account in the sum of $1,170.38.</p> <p>The defendant alleged exceptions.</p>

<p>Contract, in two counts. The first count alleged that, on February 9, 1893, the plaintiff made a contract with the defendants, a copy of which was annexed, whereby the plaintiff agreed to sell and the defendants agreed to buy two hundred and fifty shares of the capital stock of the plaintiff upon certain terms, with which the defendants had failed and neglected to comply. The second count was upon an account annexed for goods sold and delivered. The copy of the contract annexed to the declaration described the party of the first part as “ the Craig Silver Company, a corporation duly and legally organized under the laws of the State of West Virginia,” and having its principal place of business in Bridgeport in the State of Connecticut. The writ was dated September 13, 1893, and described the plaintiff as “a corporation duly established according to law, and having its usual place of business in Bridgeport in the State of Connecticut.”</p> <p>Trial in this court, without a jury, before Holmes, J., who reported the case for the consideration of the full court; such judgment to be entered as the court might direct. If judgment was entered for the plaintiff, it was to be for $14,395.43 on the first count, and for $4,176.26 on the second count. The questions reserved, and also the facts, appear in the opinion.</p>

<p>Will — Petition, by Devisee for Instructions — Statute—Writ of Entry.</p> <p>On a petition to this court by A., asking for the construction of a provision of a will to the effect that certain real estate on the decease of the life tenant, who was the testatrix’s husband, should go to “my said sister A., and in case of her death before the death of my said husband, then to her heirs at law, and to my niece B. and my nephew C., to have and to hold the same to them equally and as tenants in common,” the court said that the petition would not lie, as this was not a case in which the petitioner had any duties to perform under the will, or needed the instruction of the court as to any duties arising in the administration of the testatrix’s estate, but that as the case had been fully argued, and as all parties desired an opinion, it would say that it was of opinion that A. took only one undivided third part of the real estate, and that B. and C. each took an undivided third part.</p>

Tort, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the fall of a staging on which he was standing when at work. Trial in the Superior Court, before Mason, C. J., who declined to rule, as requested by the defendants, that the plaintiff could not recover. The jury returned a verdict for the plaintiff; and the defendants alleged exceptions. The facts appear in the opinion.

<p>Petition, filed November 2, 1894, by ten citizens of New Bedford, and three citizens of Fairhaven, for a writ of certiorari to the board of railroad commissioners.</p> <p>The petition alleged that on May 15, 1894, chapter 392 of the Acts of that year* went into effect, requiring the Old Colony Railroad Company, a corporation, to provide and operate a ferry across the Acushnet River between New Bedford and Fairhaven on and after August 1, 1894, and with a forfeiture of one hundred dollars a day for each day’s non-performance after August 1; that that period elapsed without any effort or intent of the railroad corporation to obey the statute; that on August 18 the petitioners filed a bill in equity in this court, in the county of Bristol, for the enforcement of the statute and the forfeitures prescribed therein; ■ that due service was made in the equity suit upon the railroad company, which, on September 24, 1894, filed its answer therein, not alleging any intent or effort to obey the statute, but denying its validity; that on October 1, 1894, the Attorney General answered in said suit, confirming the correctness of the petitioners’ allegations therein, and in behalf of the Commonwealth claimed against the railroad company the forfeitures accrued and accruing under the provisions of the statute; that on October 1, 1894, the railroad company had been in default, and had disobeyed the statute for the period of sixty-one days, and had incurred the penalty of $6,100 therefor, and on that day the corporation filed a petition to the board of railroad commissioners, requesting that “ after hearing you will prescribe such further time for delay in operating a ferry between New Bedford and'Fairhaven, under chapter 392 of the acts of the year 1894, as may appear to you to be reasonable”; that that petition came on to be heard before the railroad commissioners on October 15, 1894, and no evidence was offered in support of it, and no assertion of any diligence or effort to obey the statute was made, and the only ground upon which it was pressed was that the railroad company might be enabled to litigate the validity of the statute; and that the present petitioners opposed the request, but on October 29,1894, the railroad commissioners passed the following order:</p> <p>“ Ordered, that, under and pursuant to the provisions of section 2 of the act aforesaid, the first day of February, 1895, be prescribed as the day after which, instead of after the first day of August, 1894, the said Old Colony Railroad Co. shall forfeit to the Commonwealth one hundred dollars a day for each day’s delay in operating a ferry across the Acushnet River between the city of New Bedford and the town of Fairhaven, as provided in said act; with leave to the petitioner to apply for further postponement of time, and with leave to any ten or more citizens of said city or town to apply for a vacation of this order, for respective cause shown, and after notice and hearing on such application.”</p> <p>The petition further alleged that the above order was invalid; that the existence of the order obscured and confused the remedies of the statute in respect of the corporation’s disobedience and default, prejudiced the methods of relief vested in these petitioners in their pending equity suit, and clouded the right of the Commonwealth; and that the order ought not to stand, for various reasons assigned.</p> <p>The prayer of the petition was that a writ of certiorari might issue, commanding the board of railroad commissioners to return to this court a full, true, and perfect record of their proceedings in the premises; and that the same might be quashed.</p> <p>The return and answer of the respondents, after reciting the petition of the railroad company and the order of notice issued thereon, and that there was a hearing, after public notice, on October 15,1894, counsel appearing for the petitioner and for the city of New Bedford and other remonstrants, contained the following statements:</p> <p>“ The statute is mandatory in its terms, and bears the evidence on its face, if the fact did not otherwise appear, that its framers had reason to believe that the railroad company did not, and without an appeal to the courts probably would not, concede the power of the Legislature to impose upon it the duty or service in question. . . .</p> <p>“ Two remedies were thus provided, a forfeiture of $100 for each day’s delay in operating the ferry after a day named, with a discretionary power in the board to postpone the time when the forfeiture should begin to run; and a right to invoke the aid of the Supreme Judicial Court, by petition of any ten citizens of New Bedford or Fair haven, to compel a compliance with the terms of the act. The latter was obviously the more direct and effective remedy in case it were desired as speedily as possible to ascertain the binding force of the statute, and at the same time to secure the establishment of the ferry, if found to be obligatory upon the company; and this remedy was promptly availed of. . . .</p> <p>“ Under these circumstances, the railroad company asks for a suspension of the forfeiture prescribed in the act. The grounds of the request are, in substance, that all the questions touching the obligation of the company to establish and maintain the ferry are in issue in the pending suit; that it has a just and constitutional right to have these questions judicially determined ; and that it ought not, while in the due exercise of this right, and pending such determination to be amenable to an onerous and cumulative penalty as for a default in duty and a contempt of law. . . .</p> <p>“ It is evident that the General Court contemplated the probable occurrence of conditions under which it would be reasonable and proper to suspend the running of the forfeiture. Otherwise, express provision for such suspension would not have been made. The contingencies which were had in mind are not specified in the act. It is the duty of the board to discover as nearly as may be what the intent of the Legislature was, and to be guided by it in the exercise of the discretion to which appeal is now made.</p> <p>“ Two remedies were prescribed in the act, and express provision was made for the suspension of one of them. Why was this done ? The suggestion that the forfeiture was meant to be suspended'only in case of some accident or other miscarriage of such nature as to make it physically impossible to comply with the terms of the act, is not an adequate answer, because, in that view alone, both remedies should have been suspended. The more satisfactory solution appears to be, that, among other contingencies, it was distinctly foreseen and recognized that, in case the remedy by compulsory suit in equity were pursued, it not only would be superfluous, but might be oppressive, to enforce at the same time the forfeiture. This was the condition the most likely to arise under the statute; and, as it seems to the board, it must have been one, and perhaps the most cogent, of the contemplated reasons or occasions for the suspension of the forfeiture.</p> <p>“ By the prescription of two remedies, — the most stringent known to the law, but unlike in their character and appropriate use, — it was doubtless intended to provide for every phase which the subject matter was likely to assume. The one remedy was designed and adapted to supplement the other. In case the obligation to provide and operate the ferry were not called in legal question by the railroad company, or had been established beyond question by judicial decree, the heavy forfeiture prescribed, accumulating at the rate of $36,500 a year, was deemed a suitable penalty for a wilful neglect or contumacious refusal to obey the legislative or judicial mandate. If, on the other hand, the legal obligation of the company were strenuously denied, and resort were had to the court to settle and enforce by summary procedure the rights and duties of the parties under the statute, — as there was good reason to expect would be, and as has been, the case, — it cannot be justly supposed that there was any purpose to deprive the respondents of a full and fair opportunity to be heard, or to subject it to an accruing penalty, as for an established and current offence, while seeking by constitutional methods and in due course of law to ascertain whether or not an offence exists. If there were otherwise room for doubt, a fair interpretation of the language of the statute disproves such intention.</p> <p>“ It is therefore deemed to be in harmony with the just purpose of the Legislature, and within the scope of the discretion given to the board, to postpone the running of the forfeiture for a period which, as now appears, may be sufficient for the determination of the pending suit; giving the parties leave to apply respectively for further postponement, if hereafter shown to be necessary and proper, or for a vacation of the order now granted, if there should appear to be obstruction or undue delay on the part of the respondents in the prosecution of the suit.”</p> <p>Then followed the order which was sought to be quashed.</p> <p>Hearing before Morton, J., who, at the request of the parties, reported the case for the consideration of the full court; such order to be made as law and justice might require.</p>

<p> Valuation of Mill Property for Purposes of Taxation. </p> <p>In valuing the real property of a manufacturing corporation for taxation, when the land must be valued exclusively of the buildings and the buildings exclusively of the land, it is erroneous to value the land as if the buildings were removed from it and then to value the buildings as if they were to remain upon it, if the sum of the values thus obtained is greater than the fair cash value of the land and buildings taken together in the condition they were in at the time to which the valuation relates.</p>

<p>Contract, in three counts, against the administrators of the estate of William P. O’Brien, to recover commissions on sales of goods, and for breach of a written agreement. Trial in the Superior Court, without a jury, before Dunbar, J., who found for the plaintiff; and he alleged exceptions to the ruling on the question of damages. The facts appear in the opinion.</p>

Indictment, on the Pub. Sts. c. 202, § 29, in two counts. The first count alleged that the defendant, on February 10, 1894,-feloniously, knowingly, wilfully, and maliciously did “ threaten an injury to the person of one Lydia A. Williams, to wit: to arrest, imprison, and take into custody, and cause to be arrested, imprisoned, and taken into custody, the body of her, the said Lydia, by then and there feloniously, knowingly, wilfully, and maliciously sending and causing to be…

<p>Appeal from a decree of the judge of insolvency making an allowance to each of two insolvent debtors out of the partnership assets.</p> <p>The cases were submitted to the Superior Court, and, after affirmation of the decree of the Court of Insolvency, to this court, on appeal of the assignees in insolvency, upon agreed facts, the nature of which appears in the opinion.</p>

<p>*Contract—Breach — Rescission — Damages.</p> <p>If a person conveys property to another under an agreement, the terms of which are subsequently broken by the latter, and the former has enjoyed the benefit arising from the transaction for a period of several months, and the parties cannot be restored to their original positions, the former cannot rescind the transaction and recover the value of the property conveyed, but can only recover damages resulting from the breach of the agreement.</p>

<p>Maintenance of Drain — Town — Contract—Fraud — A ction—Ratification of Act of Selectmen.</p> <p>A town has power to widen a common drain,'or to clear it from obstructions, although it is upon private land and outside the limits of any highway.</p> <p>The town of Melrose is bound to maintain and keep in repair, within its own limits, the drain made by the county commissioners under the authority of St. 1869, c. 378.</p> <p>If county commissioners lay out a common drain twelve feet wide in a town, but actually build it at a certain place therein only eight feet wide, the town has power to enlarge the drain to the width of twelve feet, if such enlargement is reasonable and necessary for the purpose of proper drainage.</p> <p>It is lawful for a towm to take from the owner of land therein, through which a common drain is laid, an agreement for reimbursement of the cost to the town of enlarging the drain on his premises.</p> <p>The bringing of an action by a town upon an agreement, taken by its selectmen from the owner of land therein through which a common drain is laid, for reimbursement of the cost to the town of enlarging the drain on his premises, is sufficient evidence of acceptance of the agreement, and of a ratification of the act of the selectmen in taking it.</p>

<p>Devise and Legacy — Contingency — Survivorship — Gift to “ my other Children.”</p> <p>A testator, having provided for his wife by will, directed that during her life the balance of the net income of the residue should be equally divided among his children, and after the wife’s decease all his estate should “ be divided into as many equal parts as the number of my children who survive her shall be (the issue of a deceased child always standing in loco parentis) and the shares ” of the sons to be theirs absolutely. The shares of the daughters were to be held in trust during their respective lives, so as to secure to them the income of their respective shares during life, “ and to their respective husbands, if they shall leave their present ones surviving them, the income and produce during the lives of these husbands respectively; and from and after the decease of my daughters and their husbands respectively the trust premises shall go to their respective issue, if any shall then be living; otherwise, the said trust premises shall go to my other children or their issue respectively.” The testator left surviving him a widow and five children, A., B., C., D., and B., all of whom survived the widow. D., a daughter, died on December 9, 1885, childless, leaving a husband, who was her husband at the date of the will and who died on May- 4, 1894. E. still lived. C. died unmarried before D., on January 18, 1877, leaving a will. A. and B. died after D. and before D.’s husband, testate, and leaving children. Held, that one third of D.’s share went to E., one third to the issue of A., and one third to the issue of B., as purchasers.</p>

<p>Personal Injuries — Master and Servant — Dangerous Machine — Breach oj Duty to give Warning or Instruction— Contributory Negligence — Action.</p> <p>A., who was nearly twenty-one years old, and who two years previously had been employed in a factory for several weeks, working some of the time with a circular saw, applied at B.’s factory for work. B.’s superintendent took him to a workman, and asked the latter if he had any work for A. to do. The man took A. to a circular saw, and asked him if he had ever run a saw ; and A. replied that he had a very little, but was not an experienced hand. The man then set the gouge and ran through two or three sticks, and then told A. to go to work. A. did so, and the man watched him run through two or three sticks and then went away, giving no instructions to A., who asked for none, and who informed no one that he was in need of instructions. He continued to work upon the saw for ten days, when he was injured. Held, in an action by him against B. for his injury, that at the time when the accident occurred he was not so young and inexperienced that it was a breach of duty on B.’s part not to give him warning or instruction.</p> <p>A workman who feeds a circular saw by means of his hand, knowing a safer practicable method, is not in the exercise of due care.</p>

Bill in equity, filed April 18, 1894, for the protection of the plaintiff’s water supply. Hearing before Allen, J., who reported the case for the consideration of the full court, in substance as follows. The premises in question are situated in Needham, on the bank of the Charles River, and were taken by the plaintiff on or about December 17,1889, under and by virtue of the power given to it by Sts. 1872, c. 344; 1873, c. 326; 1876, c. 54; and 1889, c. 302.

<p>Two ACTIONS, the first being replevin of certain personal property, which had been mortgaged by the plaintiff to the defendant, who was Frank E. Chaffee, doing business under the name of the Commonwealth Loan Company; and the second being tort for an assault and battery alleged to have been committed upon the plaintiff by the servants of the defendant when forcibly removing the property from the plaintiff’s premises. The cases were tried together in the Superior Court, before ■Bond, J.</p> <p>The jury returned a verdict for the plaintiff in each case; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Partition — Mortgagee in Possession.</p> <p>A petition for partition of land will not lie if the mortgagee thereof has entered for condition broken, and is in actual possession of the premises at the time of the filing of the petition.</p>

<p>Oral Agreement to make Will — Statute — Foreign Law.</p> <p>An action was brought on an oral agreement, alleged to have been made in Maine, in 1860, by A., the defendant’s testator, to the effect that, if the plaintiff would leave Maine and take care of A., the latter would leave the plaintiff all his property at his death and would also put four thousand dollars into a house which the plaintiff should have; and evidence was introduced at the trial tending to prove the agreement as alleged. Held, that St. 1888, c. 372, which provides that an agreement to make a will or give a legacy or devise by will shall not be binding unless in writing, was a bar to the action, and that the fact that the plaintiff had furnished the stipulated consideration did not prevent the application of the statute.</p>

<p>Loss of Life — Railroad — Public Way by Prescription — Adverse Use — Acquiescence in such Use — Due Diligence.</p> <p>In an action against a railroad corporation for causing the death of a person at a crossing over its railroad, in order to show that the crossing has become a public way by prescription it is necessary for the plaintiff to prove an adverse use continued without interruption for twenty years, and an acquiescence in such .use by the defendant.</p> <p>The fact that there is a private way across a railroad by reservation does not prevent the public from gaining a right to use the way by prescription.</p> <p>From merely using what is open to use, without more, no presumption arises that the use is adverse.</p> <p>In determining whether the unauthorized use of a private way is under a claim of • right, the final test is, not whether it is greater or less in amount than the rightful private use, but whether it is of such a character as to show the assertion or assumption of a right so to use the way, or a use under the belief that such use is a matter of public right.</p> <p>The mere posting up of a sign, " Private way,” by a railroad corporation, at the crossing of its railroad by a way, is not to be deemed a prohibition of passage by others than those entitled as of right to pass along the way.</p> <p>In determining whether there was such acquiescence in the use of a way as is necessary in order to establish a public right, mere permission is not enough, but there must be something to show that such permission was accompanied with knowledge or reason to believe that the way was used under a claim of a public right.</p> <p>A way across a railroad was reserved in the original deed of the premises to the railroad corporation, given in 1834 by J., who owned a large tract of land on the south side of the railroad. The way was never laid out as a public way, but it led from a highway on the north of the railroad to J.’s land on the south ; and the land has since been used for buildings, twenty or thirty houses having been erected upon it, and in 1853 the name of G. Avenue was given to the way, the use of which had much increased, from one hundred to one hundred and fifty persons passing over it daily. It had never been repaired by the city, or treated by it as a public way, on either side of the railroad. Southerly of the railroad there was a steep ascent, which was not kept in such repair as would be expected if it were a charge upon the city. The way on that side passed through an opening less than fourteen feet wide in the fence on the side of the railroad. The general use of the avenue was mainly for the houses situated upon it, but incidentally it was also used by persons going through the avenue to reach some point beyond. Anybody used it who wished so to do, and with teams and vehicles of various descriptions. At the crossing the railroad corporation had put up within its premises a sign, “ Dangerous passing. This is a private way.” On the outside of the fence the city had also put up a sign, “ Not a public way. Dangerous.” There was no sign-board such as is required by statute where a public way and a railroad cross each other on a level. Held, in an action against the railroad corporation for causing the death of a person at the crossing, that the evidence was not sufficient to warrant a finding that the crossing had become a public way by prescription.</p> <p>A young woman, possessing good eyesight and hearing, who had lived for several months in a house about fifty feet distant from the tracks of a railroad, was accustomed to cross over them frequently by a private way, which was used quite generally by the public, and which passed through an opening in the fence at the side of the railroad. An approaching train could not be seen until this opening had been reached, and then could be seen a long distance. She left her house about the time when an express train was due at the crossing, on a stormy day, and hurried along the way, intending to take an electric car which was about to start from a station on the opposite side of the tracks. She passed through the opening in the fence and entered upon the tracks, having her umbrella raised, and, walking rapidly, and without looking to see if a train was coming, attempted to cross the tracks, when she was struck by the locomotive engine of the express train and killed. Held, in an action against the railroad corporation for causing her death, that the evidence showed that she was not in the exercise of due diligence.</p>

<p>Personal Injuries — Master and Servant — Negligence of Superintendent of Streets — Liability of Gity ■—■ Employers’ Liability Act.</p> <p>The charter of a city created a board of street commissioners, and in terms took away the power of the city to superintend and direct the board in detail. By an ordinance of the city the street commissioners were to perform the duties and to have the powers of road superintendents and surveyors of highways, and were to appoint a superintendent and an assistant superintendent, who should be under their direction and control. A person was injured, through the alleged negligence of the assistant superintendent of streets, by the falling upon him of a bank while digging gravel from the city’s land to be used in repairing one of its streets. Held, that he could not maintain an action against the city for his injury.</p>

<p>Obligation of Town to purchase Electric Light Plant — Vote of Town — Right of Town to rescind Vote — Filing of Petition for Adjudication — “Apply by Petition” — Statute.</p> <p>The St. 1891, c. 370, § 1, authorized any city or town to purchase and maintain within its limits a plant for the manufacture or distribution of gas or electricity. Section 3 provided as follows : “No town shall exercise the authority conferred in section one until after a vote that it is expedient to exercise such authority shall have been passed by a vote of not less than two thirds of the voters present and voting at each of two legal town meetings duly called for the purpose, of which meetings the second shall he held at an interval of not less than two nor more than thirteen months after the first.” A warrant for a town meeting contained the following article: “ To see if the town will vote to exercise the authority conferred in section one” of the statute, "or do or act anything respecting the same.” Under this article the town voted “ that the town do exercise the authority conferred in section one” of the statute, more than two thirds of the voters present and voting having voted in the affirmative. Another meeting was held more than two months later, at whicii there was a vote under an article in the same form as the other, and the language of the vote was the same as that at the former meeting, except that the words “ that it is expedient for the town ... to exercise the authority ” were used instead of the words “that the town do exercise the authority.” At this meeting more than two thirds of the voters present and voting voted in the affirmative. Meld, that, considering the whole proceedings together, the first vote taken by the town was sufficient under the statute.</p> <p>After a town has voted at two separate town meetings called as required by St. 1891, c. 370, § 3, that it is expedient to exercise the authority conferred by § 1 to purchase and maintain a plant for the manufacture or distribution of gas or electricity, after the schedule required by § 13 has been filed with the town clerk, and after a petition has been filed in this court under that section, to enforce the obligation of the town to purchase the petitioner’s plant, the town cannot, by a subsequent vote, relieve itself from its liability so to purchase such plant.</p> <p>The filing in the clerk’s office of this court within the time required by St. 1891, c. 370, § 13, of a petition to enforce the obligation of a town to purchase an electric light plant, is an application by petition to this court for “ an adjudication between the parties,” within the statute.</p>

<p>Insolvent Debtor— Conclusiveness of Assignment—Validity of Purchase from Debtor pending Insolvency Proceedings.</p> <p>An assignment in insolvency is conclusive evidence, in an action by the assignee for the conversion of the insolvent’s goods, of the plaintiff’s authority to sue, and it is not open to the defendant to contest the validity of the insolvency proceedings.</p> <p>The title of a purchaser of property in good faith, after the seller has filed a petition in insolvency, is invalid as against that of the latter’s assignee.</p>

<p>Contract, upon a promissory note for $808.91, dated September 16,1887, signed by Paige and Gove, and made payable on demand to the order of the plaintiff. The case was submitted to the Superior Court, and, after judgment for the plaintiff, — execution to issue against the goods and estates of the defendants, but not against their bodies, — to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p> <p>The case was submitted on the briefs to all the judges.</p>

<p>Abolition of Highway and Railroad Crossings at Grade — Confirmation of Report of Commissioners ■—■Right of Landowner to appear and object—Power of Court to revise Decision of Commissioners.</p> <p>An owner of land taken by a decree of commissioners appointed under St. 1890, c. 428, upon a petition for the abolition of the crossing at grade of a highway by a railroad, is entitled, after the report of the commissioners has been filed in the Superior Court, to present in that court objections to the confirmation of the report, and to be heard thereon.</p> <p>The decision of commissioners appointed under St. 1890, c. 428, upon a petition for the abolition of the crossing at grade of a highway by a railroad, on the question whether the quantity of land taken at a particular point is reasonably necessary for the convenient construction of the work, is final, in the absence of irregularity of procedure or of gross error, and cannot be revised by this court upon the petition of the landowner.</p>

Tort, for personal injuries occasioned to the plaintiff, and for damages caused to his horses and wagon, by collision with a street car of the defendant. At the trial in the Superior Court, before Mason, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, in substance as follows.

<p>Contract — Privity— Action — Insanity of one Parly — Right of other Party to avoid Contract.</p> <p>A., an inhabitant of another State, committed an offence here, and was arrested. He retained B., an attorney at law, and telegraphed to C. as follows: “Telegraph at once four hundred dollars to B., my attorney. . . . Am in trouble. Don’t fail.” C. thereupon sent the money to B., who then recognized as surety for A., and obtained his release from arrest. Afterwards a nolle prosequi was entered by reason of A.’s insanity. Held., that there was no contract between C. and B. upon which to found an action for the recovery of the money.</p> <p>The insanity of one contracting party does not give to the other the right to avoid the contract.</p>

<p>Personal Injuries — Master and Servant — Duty to inspect Appliance — Employers’ Liability Act — Negligence.</p> <p>In an action for personal injuries occasioned to the plaintiff, while engaged in blasting in the defendant's quarry, by an explosion of dynamite in a drill-hole which he was loading, it appeared that the method of blasting was to insert in the hole a dynamite cartridge and an “ exploder,” which was made of a copper covering filled with fulminate of mercury and discharged by electricity; that there are several kinds of exploders in general use; that the kind used by the defendant was as good as any made; that the manufacturer of them made from six thousand to eight thousand a day, packed them in boxes containing fifty each, and sold them in the open market ready for use; and that the making of exploders is a business in itself requiring skill, technical knowledge, and special machinery and appliances, and they are never made by quarrymen. The plaintiff testified that one of the exploders furnished him on the day of the accident had a seam through which the mercury could be seen. The manufacturer of them testified, and his testimony was uncontradicted, that he never saw one with a seam in it; that they were tested several times in the process of manufacture; that, when completed, they were dipped in melted wax at a certain heat, which left a glazing of wax over the whole exploder; and that, if there was a seam in an exploder when it was dipped in wax, it would explode. The defendant’s superintendent testified that he had used this kind of exploder for years and never saw one with a seam in it, or one which exposed the mercury. There was no evidence tending to show that up to the time of the accident an exploder of this kind with a seam in it, or with any other defect of construction, had ever been discovered by anybody. Held, that there was no duty on the defendant’s part to inspect the exploders as to their construction before they were used.</p> <p>An exploder made of a copper covering filled with fulminate of mercury and discharged by electricity, which is bought by the owner of a quarry to be used and instantly consumed in producing an explosion for the purpose of blasting rock, is not a part of his “ ways, works, or machinery," within St. 1887, c. 270, § 1, d. 1.</p> <p>An employer is not liable, under St. 1887, c. 270, § 1, cl. 2, for the negligence of his superintendent in furnishing an employee with a defective appliance, if the employer owes no duty to his employee to have the appliance inspected in regard to its construction before use, and if it is no part of the superintendent’s business to make such inspection, unless he assumes so to do, with his employer’s knowledge and consent, as a part of the work which, as superintendent, he is employed to do.</p>

<p>Intoxicating Liquors — Evidence.</p> <p>At the trial of a complaint for keeping and maintaining a liquor nuisance there was evidence that men had been seen going into a side door in the defendant’s house, some of them coming out under the influence of liquor, and that from this side door there was a path to a side door in another house, in a room of which, locked with a brass padlock, was found whiskey, and a key fitting the padlock was in the defendant’s house. On the same day the defendant’s daughter, who was about seventeen years old and lived with her, after looking up and down the street in front of the houses, went from the defendant’s side door to the other several times, in a loose dress, and returned holding her dress as if she had something under it. An officer seized the object from the outside, and found it a hard substance like a quart bottle, and the defendant ordered the officer to let the girl go, the officer saying, “ Let me see what that is,” and the defendant answering, “ No, I won’t.” Held, that the evidence was admissible in connection with the other facts, and that the mode in which the officer got his knowledge of what the girl had in her hand did not make the fact inadmissible.</p>

<p>Fraternal Order — Benefit Certificate — Interpleader — Foreign Law.</p> <p>A fraternal order, which, upon the surrender of a benefit certificate issued by it to a member, issues to him in its place another certificate promising to pay a certain sum upon his death to a different person from the one named in the first certificate, may maintain a bill of interpleader against both beneficiaries and the administrator of the deceased member’s estate to have it determined to whom the fund shall be paid; and it is immaterial that the beneficiary named in the second certificate has paid the assessments and dues of the member since a certain date.</p>

Contract, to recover damages for breach of an agreement to hire the plaintiff as a carriage wood-worker. Trial in the Superior Court, before Sheldon, J., who, after a verdict for the plaintiff, allowed a bill of exceptions, in substance as follows.

<p>Contract, against the executors of the will of Henry Randall, to recover a legacy. Writ dated July 11, 1893. The declaration alleged that the will was duly proved and allowed on November 23, 1891, and that on December 14, 1891, the executors gave bonds, which were approved by the Probate Court, and that the plaintiff had duly demanded payment of the legacy from the executors, who had neglected to pay the same. Answer: 1. A general denial. 2. That administration was not completed, and that the present condition of the estate would not permit the payment of the legacy. Trial in the Superior Court, before Bond, J., who directed the jury to return a verdict for the plaintiff for the amount of the legacy, with interest,* and the defendants alleged exceptions.</p>

<p>Promissory Note taken as Collateral Security for pre-existing Debt — Action.</p> <p>At the trial of an action upon a promissory note, the testimony of the defendant, who was the maker, was that he gave the note, which was made payable to his own order, to a broker at the broker’s request, and under an agreement with him that he should not use it or negotiate it unless the defendant failed to keep his margin good upon stocks bought for him by the broker, or he became indebted to the broker, and not then unless the broker first notified him and gave him a chance to make his margin good or to pay such indebtedness. The broker pledged the note before maturity to the plaintiff, as collateral security for the payment of a pre-existing debt. Held, that the note was taken for value, but that, if it was fraudulently put into circulation, the burden was upon the plaintiff to show that it took the note for value before maturity and without notice or knowledge of the fraud.</p>

<p>Taking of Easement in Land under Metropolitan Sewerage Act—Damages — Evidence.</p> <p>When land or an easement in land is taken under the right of eminent domain, and damages are to be assessed as a compensation to the owner for the value of the land taken and the injury, if any, to his remaining land, the owner may put in evidence the reasonable cost of any necessary adaptation of his land to the new state of things produced by the public work for whicli his land was taken, if the adaptation and the cost are proper, having reference also to the market value of his own estate ; and when such damages are to be assessed, if it is contended by the respondent that the damages are offset in whole or in part by some special and peculiar benefit caused to the petitioner’s property by the public work for which his land was taken, the fair and reasonable cost to the petitioner of making that special and peculiar benefit practically available is to be taken into account in ascertaining the amount of special and peculiar benefit to be offset, and so may be given in evidence by the petitioner upon the assessment of damages.</p> <p>At the trial of a petition for the assessment of damages for the taking of an easement in the petitioner’s land, under the Metropolitan Sewerage Acts (Sts. 1889, c. 439, 1890, c. 270), the petitioner contended that the laying of the State sewer through his land, which was used as slaughtering and rendering works, with drainage into a river, made a new adaptation of his works to the changed condition of affairs necessary and proper; and he introduced in evidence, without objection, an order from the State board of health to discontinue his drainage into the river, and subsequent letters to him from the sewer department of the city and the Metropolitan Sewerage Commission, concerning a plan of a particular or private sewer which he proposed to make to connect his works with the State sewer, which letters tended to show that such plan was satisfactory to both of those authorities; and there had been a view of the premises by the jury. The State sewer had been completed, and the petitioner was then building his proposed sewer upon his land parallel with the State sewer and connecting with it at three points. He was asked to state the expense of his particular sewer, and the question was excluded. Held, that the evidence should have been admitted.</p> <p>At the trial of a petition for the assessment of damages for the taking of an easement in the petitioner’s land, under the Metropolitan Sewerage Acts (Sts. 1889, c. 439, 1890, c. 270), the respondent was allowed to show the mode of construction of the State sewer, and to introduce evidence tending to prove that the sewer would carry a considerable weight of buildings over it, and that, as repairs could be made from the inside through the man-holes, it would never be necessary to disturb the soil in repairing it. Held, that the evidence was competent.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ, by the loss of his left hand in a hay-cutting machine operated by horse power. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Sale — Construction of Contract — Tender — Parol Evidence — Answer — Equitable Defence — Statute.</p> <p>At the trial of an action of contract to recover a sum of money placed in the hands of E., the defendant, to be applied by him, as the agent of S., the plaintiff, upon the purchase of certain premises, it appeared that E. signed an agreement acknowledging the receipt of the money of S., and stating that he agreed to recommend the sale to S. of the premises, and further reciting, “ It is understood that if the sale is not completed within one month, I shall return said money, and it is understood that I do not bind.myself, or attempt to bind any parties, to the completion of said transaction.” Held,, that the agreement must be construed as meaning if the sale was not completed within one month for any cause by either party; that the tender by W., the owner of the premises, within thirty days after the date of the agreement of a deed of the premises to the agent of S. did not complete the sale; and that evidence offered by the defendant to show what took place prior to, at the time of, and subsequent to the making of the agreement was rightly rejected, as it tended to vary and affect the written contract.</p> <p>Even if an answer may be regarded as sufficient under St. 1883, c. 223, § 14, the defendant cannot avail himself thereof, if the facts offered in evidence would not, in view of the construction given by the court to the contract in question, entitle the defendant “ in equity to be absolutely and unconditionally relieved against the plaintiff’s claim.or cause of action.”</p>

<p>Contract, to recover the purchase price of goods sold by the plaintiff to the defendant. Trial in the Superior Court without a jury, before Hammond, J„ who found for the plaintiff in the sum of one dollar, and the plaintiff alleged exceptions, the material portions of which appear in the opinion.</p>

<p>Intoxicating Liquors— Conviction under former Complaint no Bar to Second Complaint.</p> <p>The conviction of the defendant on a complaint for keeping and maintaining a common nuisance on April 1, 1893, and on divers other days and times between that day and December 27, 1893, to wit, a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors, is no bar to a complaint for keeping on April 29, 1893, intoxicating liquors with the intent to sell the same unlawfully in this Commonwealth, although the evidence relied on in the second complaint was a part of the evidence in the former one.</p>

<p>Contract, against Albert W. Cooke and Joseph Lewis, as sureties on a replevin bond.</p> <p>The action of replevin was brought in the Superior Court, and the action on the replevin bond in the Municipal Court of the City of Boston. The defendants set up in their answer, “ that no notice of the judgment or order of court, set forth in the plaintiff’s declaration, was given to said defendants before the bringing of the action, nor any demand made upon them to satisfy the same.” They also answered in abatement, that, if they were indebted to the plaintiff on the bond, they were indebted to him jointly with the principal, Benjamin H. Benton, who was alive and ought to be sued with them in the writ. This answer in abatement was overruled.</p> <p>In the Superior Court the defendants moved that the action be dismissed, for the reason that the court had no jurisdiction of the subject matter. It was also agreed that, if judgment should be entered for the plaintiff, it might be entered for the penal sum of the bond, three hundred dollars, and that execution might issue for the sum of one hundred and fifty-two dollars and seventy-eight cents and the costs of suit; and, further, that the court might find for the plaintiff, if it found that it had jurisdiction. This agreement also recited that “ the defendants wish to be heard only on the question of jurisdiction.”</p> <p>The Superior Court overruled the motion to dismiss, and ordered judgment for the plaintiff for the penal sum of the bond, and assessed damages in the sum of one hundred and fifty-two dollars and seventy-eight cents; and the defendants appealed to this court.</p>

<p>Demurrer — Answer — Judgment.</p> <p>On the overruling of a demurrer the plaintiff is not, as matter of law, entitled to judgment, but the court may direct a trial to be had on the merits on an answer previously filed.</p>

<p>Contract, upon a poor debtor’s recognizance, entered into by Edward C. Mitchell, Jr., as principal, and Edward Carrol-as surety.</p> <p>At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiffs in the amount of the recognizance, and interest from the date of the writ; and the defendants alleged exceptions. The facts appear in the opinion.</p>

Indictment, in three counts, for conspiracy. The second count, upon which the defendants were convicted was as follows: “ And the jurors aforesaid, on their oath aforesaid, do further present that Horace I. Pinkham, Charles H. Cox, Fred H. Cate, George O. Tilton, William W. Ham, Charles H. Croy, and Hadley H. Hoyt, all of Haverhill in said county of Essex, at Haverhill in said county of Essex, on the Tuesday next after the first Monday of December in the year of our Lord one…

<p>Contract, upon a promissory note for $500, dated December 27, 1892, payable in three months after date to the order of the plaintiff, and signed by the defendant. The answer set up want of consideration. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the-opinion.</p>

<p>Evidence — Fraudulent Sale — Docket Entry—Return of Properly and Assessment of Damages in Action of Replevin.</p> <p>At the trial of an action of replevin it appeared that the plaintiff claimed title to the property under a mortgage, subsequently to the recording of which the property was attached by the defendant, a constable, as the property of the mortgagor, upon a writ in favor of a creditor of the mortgagor. On August 13,1888, which was previous to the attachment and subsequent to the recording of the mortgage, the mortgagor sold and delivered the property to A. The defendant contended that the sale was made by the mortgagor in fraud of his creditors, r and that A. participated therein. B., who testified that he was engaged in July and August, 1888, in the manufactory where the property was, was asked, “ Did you see him [the mortgagor and vendor] around there ? ” He replied, “ He was there nearly every day.” There was evidence that after the purchase A. moved to another State, but there was no evidence that he had any knowledge that the vendor was around the manufactory after the purchase. The question and answer were admitted, in connection with other evidence, as tending to show the vendor’s fraudulent purpose in selling the property, and not A.’s participation therein, which participation was found by the judge on other evidence. Held, that they were rightly admitted.</p> <p>In an action of replevin, the judge, on March 9, 1894, found for the defendant, and by his direction the clerk made on the docket a memorandum of the finding. Twenty days thereafter a motion was made for the return of the goods and the assessment of damages, and the finding was amended by adding “ and for the return of goods.” The assessment of damages was postponed until the following June, neither party objecting, but the plaintiff not consenting, except by silence. In July following, when the question of assessment of damages was argued, the plaintiff objected, on-the ground that the judge had then no authority to assess them. The judge overruled the objection, and assessed damages on July 25 as of the preceding March 29; and the plaintiff excepted. Held, that . the original docket entry was in the nature of a memorandum rather than of a final judgment, and that it was competent for the judge at a later stage, upon motion of the defendant, to order a return and assess the damages.</p>

<p>Personal Injuries — Negligence — Municipal Ordinance — Evidence.</p> <p>A street railway company which, after a storm, is engaged in removing snow from its tracks in a city street, using therefor, by permission of the superintendent of streets, snow ploughs which heap the snow at the side of the tracks, is not liable, in the absence of evidence that the work was done negligently, or by improper methods, or that the snow was unnecessarily piled up in the street and not seasonably removed, for injuries occasioned to a traveller on the sidewalk who was struck by a horse belonging to a third person, which, on entering the street where the tracks were from a side street, ran into the pile of snow, tipped over the sleigh to which it was attached, escaped from the control of the driver, and ran away.</p> <p>The Lowell Horse Railroad Company, which, under an ordinance of the city of Lowell, was forbidden under certain conditions to use snow ploughs on its tracks in that city, or to remove snow therefrom, without consent first being obtained of the mayor, or of the superintendent or chairman of the committee on streets, and the Lowell and Draeut Street Railway Company, having under the provisions of St. 1890, c. 163, been consolidated into the Lowell and Suburban Street Railway Company, the consolidated company, though subject, under the operation of the statute, to the provisions of the ordinance, may, with the consent of the superintendent of streets, lawfully remove snow from its tracks in Lowell by means of ploughs or otherwise. Parol evidence of an agreement between the manager of a street railway company and the superintendent of streets of a city, permitting the company to remove snow from the streets with snow ploughs, is competent, where it appears that the written agreement has been mislaid and cannot be produced.</p>

<p>Taxes — Place where Business is carried on.</p> <p>Partners whose principal place of business is in the city of B. ’cannot be taxed in the town of C. as the place where their business is carried on, within the meaning of Pub. Sts. c. 11, § 24, from the fact that, by a contract with the superintendent of the State Reformatory in C., they transact business there wholly incident to work done by the State and in a place under its exclusive control.</p>

<p>Information in, the Nature of a. Quo Warranto—Right to Trial by Jury,— Constitutional Law.</p> <p>The defendant in an information in the nature of a quo warranta brought to try his title to the office of president of the common council of a city has no constitutional right to a trial by jury.</p>

<p>Indictment, on Pub. Sts. c. 207, § 4, alleging that the defendant, on April 3, 1891, at Boston, was lawfully married to one Annie Dillon ; and also that on September 2, 1894, at Boston, he unlawfully married one Emma M. Taylor.</p> <p>At the trial in the Superior Court, before Mason, C. J., the defendant seasonably moved to dismiss the indictment assigning as causes therefor: 1. That the foreman of the grand jury which presented the indictment was a special police officer. 2. That a grand juror testified as a witness before the grand jury of which he was a member at the same sitting of the court at which this indictment was presented.</p> <p>The motion was overruled, and the defendant excepted.</p> <p>The first wife of the defendant, Annie Dillon, called as a witness by the government, testified that she was married to the defendant on April 3, 1891, and an attested copy of the record of her marriage to him from the records of the city registrar of Boston, certified to by the assistant registrar, and a writing, identified as the handwriting of the defendant, purporting to be a letter written by him to one Mrs. William Dillon, mother of Annie Dillon, of Kinsale, Ireland, signed by the defendant, “ Maurice A. Hayden, your son in law,” were introduced in evidence.</p> <p>The government also put in the testimony of a witness who married the defendant to Emma M. Taylor, that he was a clergyman in Boston and an ordained minister and pastor of a Congregational church, and that he had been such pastor for many years. The defendant excepted to the admission of this testimony, on the ground that it was not competent to prove the ordination of the witness, or his authority to bind parties in marriage.</p> <p>Emma M. Taylor testified that she was married to the defendant on September 2, 1894, and that she had read a letter dated February 28, 1894, received by the defendant from Mrs. William Dillon, stating that her daughter Annie Dillon was dead. Another witness testified that the defendant had told him that his first wife, Annie Dillon, was dead, and that he, the defendant, had received a letter from her mother in Ireland saying so.</p> <p>The defendant requested the judge to rule: 1. That, if the jury are satisfied from the declaration of the defendant concerning the death of his first wife that he honestly believed that she was dead, they should return a verdict of not guilty. 2. That the declaration of the defendant that his first wife was dead established and sustained the presumption of innocence, and if the jury believed that he acted in good faith and in furtherance of such belief they should acquit. 3. That if the defendant at the time of contracting the second marriage had a Iona fide and reasonable belief that his first wife was dead, he was entitled to an acquittal.</p> <p>The judge declined so to rule; and the jury returned a verdict of guilty.</p> <p>The defendant alleged exceptions.</p>

<p> Right of Person indicted for Felony to he present when Verdict is rendered. </p> <p>While it is a right of the defendant indicted for a felony to be present when the verdict is rendered as well as during the earlier parts of the trial, and while it is irregular to begin the trial without his presence, yet if he is on bail and is present at the commencement of the trial, and afterwards voluntarily departs without leave and is absent when the verdict is returned, he may be defaulted and a verdict which will be binding upon him may be taken in his absence.</p>

<p>Use of Name in Business— “ Successor ” — Statute.</p> <p>The provisions of Pub. Sts. c. 76, § 6, forbidding any person to “ assume or continue to use in his business the name of a person formerly connected with him in partnership or the name of any other person ” without written Consent do not apply to advertising one’s self as “ formerly with ” or “ successor to ” another.</p> <p>If a business originally carried on by A., and afterwards by A. and his son B. under the name of “ A. & Son,” is purchased by B. and carried on by him under the same name until his death, and is given by him by will including the goodwill and other assets to his wife, and by her sold to C., with the right so- far as she has the power to give it to use the name and description “ C., successor to A. & Son,” C. is a “ successor,” and a bill in equity by the administrator of A. will not lie to enjoin him from using the name and description.</p>

<p>The first case was a petition to the judge of probate of the county of Middlesex, by Edward R. Eager and others, executors of the will of Leonard Whitney, late of Watertown, deceased, to obtain the instructions of the court as to the construction of the will. The judge decreed as follows: “ It appearing that the said Emily F. Brownell died after the testator, intestate, leaving a husband and no issue, it is determined that the said Emily F. Brownell took a vested interest in her distributive share of the estate of said testator, both real and personal, as it existed at the time of his death, subject however to the charges imposed upon it by said will; that the same was in pursuance of the provisions of said will all duly converted into personalty before the death of the said Emily F. Brownell, and that her personal representatives are now entitled to receive from the petitioners the same income she would have been entitled to receive had she been living ”; and “ that the said petitioners pay to the personal representatives of the said Emily F. Brownell one twelfth of the net income of the property of which the wife of the testator is to have two thirds of the income as set forth in said will, from the time of the death of said Emily F. to the date of this decree; and from and after the date hereof to pay her personal representatives said income semiannually until the final distribution of the estate of said deceased or until the further order of court.”</p> <p>Arthur H. Whitney, a son and one of the heirs of the testator, appealed to this court. Hearing before Holmes, J., who, at the request of the parties, reported the case for the determination of the full court. The material facts appear in the opinion.</p> <p>The second case was a petition to the judge of probate of the county of Middlesex, by Andrew S. Brownell, the administrator and sole personal representative of Emily F. Brownell, one of the legatees under the will of the said Leonard Whitney, praying that the executors and trustees be ordered to pay over to the petitioner, discharged of all trust, certain portions of the principal of the estate. The judge decreed “that it was the intention of the said testator that the principal of the ‘ property ’ belonging to the estate of said testator in the hands of said trustees should not by them be paid to those entitled thereto until the year 1901.”</p> <p>The petitioner appealed to this court. Hearing before Holmes, J., who reported the case with the former appeal for the determination of the full court. The material facts appear in the opinion.</p>

<p>The first case was a bill in equity by the executors of the will of Moses Taft to obtain the instructions of the court as to the construction of the will and of the ante-nuptial agreement between the testator and Emeline N, Taft. Hearing before Lathrop, J., who reserved the case upon the bill and answers for the determination of the full court. The material facts appear in the opinion.</p> <p>The second case was a writ of entry to recover one undivided sixth part of one undivided half of a lot of land with a building thereon in Uxbridge. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the demandant, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion.</p>

<p>Revocation of Liquor Licenses by Board of Police — Statute — Certiorari.</p> <p>The board of police of Fall River have the power, under St. 1894, c. 351, § 2, to order licenses of the first and fourth classes for the sale of intoxicating liquors to be forfeited and revoked for a breach of the conditions thereof.</p> <p>Whether certiorari will lie in case it appears that a board of police exceeded their jurisdiction under a statute in forfeiting and revoking a license for the sale of intoxicating liquors, qucere.</p>

<p>Bill in equity, filed April 1, 1893, by J. Frank Stone, as mortgagee, and James Slattery, as owner, to redeem a tract of land in Holliston from a sale to the defendant for non-payment of taxes, and from a judgment for possession of the same land rendered in favor of the defendant in a writ of entry brought by him against the plaintiff Slattery. Hearing in the Superior Court, before Hammond, J., who overruled the defendant’s motion to dismiss the bill, and entered a decree for the plaintiffs; and the defendant appealed to this court.</p>

<p>Action, on Pub. Sts. c. 175, to recover possession of certain premises in Boston. Trial in the Superior Court before Sheldon, J., who ordered a verdict for the plaintiff in each case; and the defendants alleged exceptions. The facts appear in the opinion.</p>

Petition to the Superior Court for the assessment of damages caused by the taking of land by the park commissioners of the city of Boston. Trial in the Superior Court, before Dunbar, J., who, after a verdict for the petitioner, reported the case for the determination of this court. The material facts appear in the opinion.

<p>Contract for an alleged breach of a warranty in the sale of two hundred barrels of flour by the defendants to the plaintiff. The answer was a general denial. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions. The facts appear in the opinion.</p>

<p>Personal Injuries — Negligence — Due Care — Assumption of Risk — Contribution between joint Tortfeasors— “ Tortious Act."</p> <p>In an action of tort against several defendants, where no question of the liability of the defendants among themselves is raised by the pleadings, tried or argued, an order of the court directing a verdict in favor of one of them is not subject to exception by the others.</p> <p>Where it appears that the plaintiff, a traveller in a buggy on the highway, upon entering the crossing of the way by a railroad at grade, found the gates up, that he looked both ways, and heard no bell or whistle, that the first notice he had of danger was when the gates began to be lowered after he was part way across the tracks, that he got across the tracks and cried out to the gate-keeper to raise the gates, which the latter did not do, and that thereupon the plaintiff turned his buggy into the space between the outer track and the gate and it was there struck by an approaching train, and he was either thrown out or lie jumped out, there is some evidence for the jury on the question of the due care of the plaintiff, and of the negligence of the gate-keeper, who was the servant of the railroad company, and a refusal to direct a verdict for the defendant affords no ground of exception.</p> <p>If the plaintiff, a traveller in a buggy on the highway, through the negligence of the gate-keeper is shut within the gates of a railroad crossing, and while there is either thrown from his buggy by an approaching train or jumps out, he suffers a physical injury, though it consists mainly of a nervous shock, and in estimating the damages the jury may take into consideration the fright and the nervous shock.</p> <p>In an action against a railroad company by a traveller on the highway, who through the negligence of a gate-keeper was shut within the gates of a railroad crossing and injured by an approaching train, a request by the defendant for a ruling that “ if the plaintiff knew or in the exercise of reasonable care might have known that the gates were descending or about to descend before he entered upon the crossing, but notwithstanding took the risk of entering upon the crossing, he cannot recover,” was properly refused, since it did not assume that the plaintiff knew that the gates were descending or were about to descend, which in such a case is an essential element to justify the application of the doctrine of the assumption of the risk.</p> <p>The doctrine of the assumption of the risk, as distinguished from the doctrine of reasonable care, in actions not between master and servant or persons having contractual relations, is confined to cases where the plaintiff knew and appreciated the danger, and voluntarily put himself in the way of it.</p> <p>In an action for personal injuries the defendant requested a ruling that “ there was no evidence that the plaintiff had suffered any loss in his business, or any diminution in the income therefrom, or that he has been compelled to relinquish or abandon the same, and that there can be no recovery therefor.” The judge declined so to rule, and instructed the jury, in substance, that as the plaintiff admitted that the evidence would not justify a finding of a payment by him of one thousand dollars for nursing, or an abandonment of a business from which at the time of the accident he was realizing $2,500 a year, as alleged in the declaration, they should not find those specific sums as damages. There was some evidence that the plaintiff was prevented by his injury from attending to his business in the usual manner, and the jury returned a verdict in his favor. Held, that the instructions were correct, and that, as all the evidence of the nature and extent of the plaintiff’s injuries was not set out in the exceptions, it could not be said that the ruling requested by the defendant should have been given.</p>

<p>Contract, with a count in tort for conversion of twenty-one cords of wood, both counts being alleged to be for the same cause of action.</p> <p>The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion. If Adeline Walker, who was the employer of the defendant, had the right to cut and carry away the wood or to authorize it to be done for her, judgment was to be entered for the defendant; if she had not the right, then judgment was to be entered for the plaintiffs for twenty-eight dollars and seventy-seven cents, or forty-nine dollars and seventy-seven cents, as the court should determine, the larger sum including the amount paid for cutting the wood.</p>

Contract, by the executor of the will of Nancy Whitcomb, against the administrator of the estate of Cassander S. Wilkins, upon two promissory notes, which were as follows: “ $1,000. Boston, March 3,1875. For value received I promise to pay to the order of Mrs. Nancy Whitcomb one thousand dollars, with interest. C. S. Wilkins.” “ $500. Boston, January 13, 1875. For value received I promise to pay to the order of Mrs. Nancy Whitcomb five hundred dollars, with interest.

<p>Contract, upon a judgment recovered by the plaintiff, on January 8, 1894, in the Superior Court, in an action against the present defendant upon an account annexed. At the trial in the Superior Court, before Maynard, J., the plaintiff offered in evidence the clerk’s record of the judgment and rested. The defendant offered no evidence, and rested, and asked certain rulings not necessary to be stated. The judge refused to give any of the rulings, and ordered the jury to return a verdict for the plaintiff; and the defendant alleged exceptions. The material facts appear in the opinion.</p>

Tort. The declaration alleged that, on or about March 6, 1894, the defendant McKechnie was the owner of a certain lot of land situated on Dorchester Avenue, in Boston, near the junction of Boston Street with said Dorchester Avenue; that on or about said date the defendant Jobling was constructing for McKechnie a building on the lot, which building fronted on Dorchester Avenue, and was very close to the sidewalk of Dorchester Avenue; that in the course of construction, and…

Contract to recover the sum of five hundred dollars. At the trial in the Superior Court, before Hammond, J., it appeared that the plaintiff and one John L. Sullivan had been partners in a theatrical business; that the defendant was in the receipt of a salary in their employ, as treasurer; that, prior to the above partnership, the plaintiff, said Sullivan, and one Barnett had been partners in a theatrical business during a tour in Australia and up to their return to San…

<p>Adultery — Indictment — Continuando — Duplicity — Surplusage — Trial — Election by Prosecution of Occasion relied on.</p> <p>An indictment charging the defendant with the crime of adultery on July 1, 1894, “ and on divers other days and times between that day ” and June 5, 1894, is bad, because it charges the offence with a continuando, and also because it is objectionable for duplicity; and the allegation of continuance, being sufficient in form, cannot be rejected as surplusage.</p> <p>Where it appeared that, at the trial in the Superior Court of an indictment for adultery, evidence was introduced of a succession of acts of familiarity between the defendant and his paramour extending over more than a year, that the presiding judge declined to compel the prosecution, either at the beginning of the trial or at the close of its testimony, to elect on which occasion it would rely, that at the close of all the testimony it elected to rely on one of the earliest occasions of which there was any evidence, and that the judge treated the evidence relating to subsequent occasions as indicative of an adulterous disposition, without affording an opportunity to the defendant to object to it as too remote, this court deemed it proper to say that the trial was conducted irregularly, and without due regard to the rights of the defendant.</p>

<p>Restriction in Deed—Piazza — Building.</p> <p>A piazza, covered by its owp roof, and attached to the front of a house the front line of which is twenty feet from the street, is a “ building ” within the terms of a restriction that “no building . . . shall be placed at a less distance than twenty feet from” the street.</p>

<p>Equity — Specific Performance — Statute.—Jurisdiction.</p> <p>The provisions of the Pub. Sts. c. 141, § 22, as to selling and conveying in certain cases property held in trust by minors, lunatics, etc., are not applicable to a person who has agreed to purchase land in this Commonwealth, and this court has no power under the statute to compel him to accept a conveyance where it cannot bind him personally by its decree.</p>

<p>Petition in equity, by the- trustee under the will of Charles L. Pitkin, against the widow of the testator and other legatees, to obtain the instructions of the court as to the construction of the will. Hearing before Lathrop, J., who reported the case for the determination of the full court. The facts appear in the opinion.</p>

Tort, for personal injuries occasioned to the plaintiff by an alleged defect in a highway in the defendant city. Trial in the Superior Court, before Maynard, J., who ruled that, upon the whole evidence, the plaintiff could not recover, and directed a verdict for the defendant, and reported the case for the determination of this court. If the ruling was correct, the 'verdict was to stand; otherwise, a new trial was to be ordered. The facts appear in the opinion.

<p>Devise and Legacy—Perpetuity—Valid Public Charities—Trust for Sale of Real Estate — Promissory Notes — Gift — Photographic Copy of Will — Payment of and. Interest upon Legacies — Payment of Expenses of Administration and of Contest over Probate of a Will.</p> <p>A provision in a will giving an estate to trustees in trust to be conveyed in fee simple to A. and his descendants, together with the income of a fund also given in trust, the income to be used by A., his heirs and assigns, exclusively for the purpose of keeping the estate as well as the testator’s cemetery lot and monument always in repair, creates, so far as it is intended for the purpose of keeping the estate in repair a private perpetual trust, and the estate, having been conveyed to A., becomes absolutely his property, and the fund also becomes absolutely his property so far as it is intended to be used in keeping the estate in repair; but the trust to keep the burial lot and monument always in repair is a good perpetual trust under our statutes, and, it being conceded that a certain sum is sufficient for the purpose, the trustees should retain in their hands that sum, or deposit it with the treasurer of the city, the income thereof to be used to keep the burial lot and monument always in good order. '</p> <p>A devise of real estate to trustees to be cut up into " smaller lots and sold for pleasant homes,” and of two wharves to be sold or to be let to the persons who should build on the lots, does not create a charitable trust, but merely a trust tor sale of real estate.</p> <p>A devise of “ The Chapel lot . . . to be retained and used when the growth of the village population will justify the building of a larger and more pretentious Village Chapel,” and bequest of a sum of money for the purpose ultimately of erecting upon the Chapel lot a.chapel to be used by the inhabitants of the village for religious meetings and a Sunday School, are good public charitable gifts.</p> <p>A gift of real and personal property for a public park is a good public charitable gift.</p> <p>A testator by his will gave in trust the sum of one hundred and twenty thousand dollars, including a note of twenty thousand dollars held on demand, the income “ to be paid semi-annually to the Board of Trustees of the Gloucester Lyceum, and Sawyer Free Library as part of the endowment fund for its support.” About five years before the execution of the will the testator delivered to the treasurer of the Lyceum and Library, a corporation, a promissory note for twenty thousand dollars, signed by him and payable on demand to the order of the Board of Trustees of the corporation with interest, which interest was paid by him to the time of his death. Held, that the note, being signed by the testator, could not be the subject of a gift; that it was simply a written promise, without consideration, and could not be enforced against his estate; that the language of the will showed that the bequest was of the sum of $120,000, of which the promise contained in the note should he a part; that the note should be cancelled; and that the bequest of $120,000 was a good public charitable bequest.</p> <p>A bequest “ of Forty .Thousand Dollars, in trust, including the notes of Two Thousand Dollars, already given,” the income to be paid “ to the Treasurer of the Female Charitable Association of Gloucester, ... to be devoted to the charitable and benevolent objects for which this society has so long and so cheerfully labored, relieving the destitute and comforting the sick,” is a good public charitable bequest of forty thousand dollars; and the notes signed by the testator cannot be the subject of a gift, and, being simply written promises, without consideration, cannot be enforced against his estate, and must be cancelled.</p> <p>A bequest to the government of a city of money in trust to be called the “ S. Drawing and Music Fund, and the income only to be used to assist in defraying the expenses of competent teachers in these two departments of our Public Schools under the direction of the School Committee,” and if either or both should be discontinued “ the income shall then be used to establish a branch or Nautical School, to teach young mariners the art or science of Navigation,” is a good public charitable bequest.</p> <p>A bequest to the government of a city of money in trust, the income to be applied by the School Committee in providing medals for meritorious scholars in the High and Grammar Schools, and to be used in setting out ornamental trees on tile waysides, or within the school-house grounds or other public places, is a good public charitable bequest.</p> <p>A bequest of money to the Trustees or the Treasurer of a Public Library in trust to be called the “ S. Fund,” the income to be used for books, is a good public charitable bequest.</p> <p>Bequests of money to the Parish Committee and the Treasurer of the First Parish Unitarian Society of a city in trust, the first to be called “Parsonage Fund,” the income to “be allowed to accumulate until such time as the said officers and the members of said Society shall deem it best, to provide a parsonage Home for their minister,” the second to be called the “ Salary Fund, the income only to be used in paying the minister’s salary,” the third without any particular name, “ the income only to be used in purchasing Sabbath School books,” and the fourth to be called the “ Girls Industrial School Fund,” the income “ to be paid to the chief manager of said School.” are all good public charitable bequests.</p> <p>A bequest of money in trust, “ the income only to be paid semi-annually to my nephew A. and his heirs,” is an attempt to create a private perpetual trust, and the money is to be paid to A. absolutely.</p> <p>The provisions of the paragraphs in the will which have been numbered for convenience from fifty to fifty-two, directing, among other things, the payment of the average annual income in the place of interest to certain institutions, relate only to those institutions mentioned in the forty-eighth and forty-ninth paragraphs, that conclusion being justified by the phraseology of the will and by the aid derived from the examination of a photographic copy of it.</p> <p>A provision in a will which extends the time of payment of legacies to certain institutions, and which was intended to affect only the convenient and most profitable management of the estate, does not take the legacies generally out of the operation of the rule that legacies draw interest at the rate of six per cent per annum from one year from the death of the testator.</p> <p>A bequest in trust, within Pub. Sts. c. 136, §§ 24, 25, which provide that the income shall be payable from the death of the testator, and shall be apportioned in case of the death of the life tenant, draws interest at the rate of six per cent per animm, simple interest, from the death of the testator; and the life tenant having died after the testator, there being no provision as to the termination of the trust, the interest up to the time of his death is payable to his estate, and the principal fund belongs to the residue of the testator’s estate.</p> <p>A testator provided by his will that, if at his decease his property should be depressed in value, the executors were to defer the payment of legacies to certain institutions “until such time as in their good judgment it would seem best to dispose of as much of said properties as would be required to pay these legacies in full, not exceeding five years,” and directed that the average annual income from his property “ shall be considered, if less, an equitable sum to be divided and paid ” to the institutions. Held, that interest on the amounts given from one year from the death of the testator for the next four years was to be reckoned at the rate of the average annual income received from the property if less than six per cent, and after the expiration of five years from the death of the testator at the rate of six per cent, simple interest, per annum.</p> <p>The expenses of administration, including the expenses of the contest over the probate of a will, so far as they are made a charge upon the estate, are to be taken from the corpus thereof.</p>

<p>Equitable Assignment of Mortgaged. Personalty—Action for Conversion of Mortgaged Personalty by Second Mortgagee — Estoppel — Conversion —• Attachment — Evidence— Value.</p> <p>An equitable assignment of a mortgage does not entitle the assignee to maintain an action in his own name for the conversion of the property mortgaged.</p> <p>A second mortgagee who is not in actual possession of the property covered by his mortgage, and is not entitled to the immediate possession thereof, cannot maintain an action for its conversion.</p> <p>If an officer of a corporation, who is also a mortgagee of its property, in reply to inquiries concerning the financial standing of the company, falsely represents that its property is unencumbered, with intent to induce a sale of goods to it on credit, he is later estopped to set up his mortgage against the attachment of one who sold goods to the company relying on his statements, or against an officer who acted for the creditor in making the attachment.</p> <p>In an action by a mortgagee against an officer for the conversion of the mortgaged property, the plaintiff must recover, if at all, upon the strength of his own title, and it is competent for the defendant to introduce evidence to show that the plaintiff had no title to a portion of the property.</p> <p>In an action by a mortgagee of personal property against an officer for the conversion of the mortgaged property, which was attached by him in an action against the mortgagor, the defendant may show that certain articles claimed by the plaintiff were not attached.</p> <p>The price of goods obtained at a sale by auction is competent evidence on the question of value.</p>

<p> Unreasonable Delay in Prosecution of Writ of Review. </p> <p>A writ of review brought ten months after leave of court obtained to bring it is not seasonably prosecuted, and will be dismissed on motion, although, during the greater part of that period, the plaintiff in review, who had left the Commonwealth on business, was detained abroad by illness.</p>

<p>Wife living Apart from her Husband — Attachment on Mesne Process — Insolvency.</p> <p>An attachment by a wife who is living apart from her husband of his property, under the Pub. Sts. c. 147, § 35, is subject to the Pub. Sts. c. 157, § 46, which provides that an assignment made under § 44 of the latter statute dissolves “ any attachment on mesne process made not more than four months prior to the time of the first publication ” of notice of the filing of the petition, in cases of involuntary proceedings in insolvency.</p>

Tort, for personal injuries occasioned to the plaintiff while a passenger upon a car of the defendant company. !

<p>Petition to prone Exceptions — Reduction of Exceptions to Writing in a Summary Mode.</p> <p>A petition to establish the truth of exceptions should contain an exact copy of the bill of exceptions which was filed.</p> <p>A bill of exceptions which, though conformable to the truth, set forth at great length a report of the testimony taken at the trial, and disclosed no attempt to reduce the exceptions to writing in a summary mode, as required by Pub. Sts. c. 153, § 8, was for that reason properly disallowed by the presiding judge. ■</p>

<p>Two COMPLAINTS, under the St. of 1893, c. 417, § 321, the first of which was for falsely making, and the second for filing, knowing the same to be falsely made, a nomination paper.</p> <p>The first count of the first complaint alleged that the defendant, on November 24, 1893, “ unlawfully did falsely make a certain nomination paper for the nomination of a candidate ” for alderman of the city of Fall River. The second count of the first complaint alleged that the defendant “ unlawfully, knowingly, and designedly did falsely make a certain nomination paper, . . . which said nomination paper said John A. Connelly did then and there . . . falsely make, and did then.and there falsely and unlawfully sign by writing and signing on said nomination paper the name Colgan Edward, ... all of which names John A. Connelly aforesaid then and there at the time and place aforesaid did on and to the nomination paper aforesaid falsely and unlawfully sign.”</p> <p>The first count of the second complaint alleged that the defendant, on November 24, 1893, “did file ... a certain nomination paper, . . . which nomination paper aforesaid was falsely made, he the said John A. Connelly aforesaid then and there, . . . when he ... so filed the nomination paper aforesaid, knowing said nomination paper to be falsely made.”</p> <p>The second count differed from the first only in alleging the filing of a “ falsely made nomination paper.” Each complaint contained an averment that both counts therein were different descriptions of the same acts.</p> <p>The defendant seasonably filed motions to quash the complaints, assigning as reasons therefor applicable to the first complaint, 1. that it did not appear that the defendant had any fraudulent intent in making the nomination paper; 2. that it was not averred in what manner or by what means the defendant falsely made the nomination paper; and, as applicable to the second complaint, 1. that it averred no fraudulent intent in filing the nomination paper, and 2. that it did not aver in what respect such paper was falsely made.</p> <p>The defendant also filed a plea to the jurisdiction, in which he alleged that the St. of 1893, c. 417, was unconstitutional, in that the provisions requiring voters signing nomination papers to sign the same in person, and to add thereto their places of residence with street and number, if any, gave to a certain class of citizens political powers and privileges which were denied to another class of citizens, to wit, those who are physically disabled so that they cannot read or write, and those who were citizens prior to the adoption of the twentieth article of Amendment of the Constitution of the Commonwealth, and who cannot write.</p> <p>The motions to quash and the plea to the jurisdiction were overruled; and the defendant excepted.</p> <p>At the trial in the Superior Court, before Maynard, J., the case was submitted to the jury upon an agreed statement of facts, in substance as follows.</p> <p>Of the signatures on the nomination paper all but six were signed in person by the voters to whom the names belonged, and of the six signatures which were made by the defendant four were made by him at the request of the persons bearing those names, and two of them before the defendant had requested the persons having those names to sign the paper. Before filing the nomination paper, however, the defendant notified the last two persons that he had signed their names, stating the character of the nomination paper and the purpose in signing their names, and received from them their assent and authority for so doing. The defendant had no intention to mislead, deceive, cheat, or perpetrate any fraud by signing such names, but believed that it was lawful for him so to do, and he filed the nomination paper not knowing that it was falsely made other than that he had signed the names as stated above, believing that he was authorized so to do, and believed that it was lawful and proper for him to file the paper.</p> <p>The defendant requested the judge to instruct the jury that upon the agreed statement of facts the defendant was entitled to an acquittal; but the judge declined so to do, and instructed the jury to return a verdict of guilty, which was done accordingly; and the defendant alleged exceptions.</p>

<p>Personal Injuries — Defective Highway—Want of Barrier or Railing — Due Care — Negligence — Evidence — Witness.</p> <p>Evidence that a witness of the adverse party had made statements out of court inconsistent with his testimony is admissible without first calling the attention of such witness, when testifying, to the time, place, or circumstances of the alleged contradictory statements.</p> <p>A town may be found to be liable for damages where a heavily loaded four-horse wagon is thrown into the gutter by the passing of the rear wheel over a stone on the surface of a narrow rounded and icy road way at a point not- far from a culvert through which a brook crosses the roadway, and where, in the attempt to get the wagon again upon the usual path without unloading it, it is overturned and carried into the brook.</p> <p>A jury may find that a rounded roadway only eleven feet wide and covered at least in part with smooth hard ice, and with a steep slope at the side into a gutter encumbered with snow, where the roadway is crossed by a brook, and with no railing by the side of the roadway or upon the culvert, is a defective way, even in a sparsely settled locality, and at the season when sleighing has just ended and travel is upon wheels.</p>

<p>Petition of James J. Grace, that the receiver of the American Protective League, a fraternal beneficiary organization incorporated under St. 1888, c. 429, and St. 1890, c. 341, be ordered to fulfil the covenants of a lease given by the petitioner to the League.</p> <p>Trial in the Superior Court, before Hammond, J., who reported the case for the determination of the full court, in substance as follows.</p> <p>The lease, which was of a building on Tremont Street in Boston, was dated July 15,1890, and was for the term of fourteen years and nine and a half months, at a rent varying from twelve to fifteen thousand dollars a year. In September, 1892, the League, which was insolvent, was enjoined from doing further business, and, on November 2, Henry W. Putnam, Esq. was duly appointed receiver, and qualified as such.</p> <p>The League could pay but a small dividend to the beneficiaries, whose lien on the fund in the hands of the receiver was prior to that of the general creditors. The receiver, soon after his appointment, relying upon the verbal promise of the petitioner that he would consent to a sale and assignment of the lease by the receiver for the benefit of the fund, took possession of the demised premises for the purpose of endeavoring to dispose of the lease, and, with the verbal consent of the petitioner and the approval of the judge, entered into a contract, dated December 17, 1893, with one Bradstreet for the sale of the leasehold interest. Thereupon the petitioner refused his consent to the assignment, and notified the receiver that the lease was forfeited by breach of condition; and Bradstreet refused to accept the assignment, and the receiver brought suit to compel specific performance of the contract of purchase, making the petitioner a party defendant. That suit was, in May, 1894, determined by the full court in favor of the defendant Bradstreet, on demurrer, and is reported 161 Mass. 237.</p> <p>Meantime the receiver continued to pay rent under the lease, and otherwise perform the covenants thereof, until October 23, 1893, when, after tendering Bradstreet an assignment and notifying him of his intention, if it was not accepted, of disposing of .the lease for his account, in such manner as the judge might order, he applied to the judge for leave to assign the lease to an irresponsible person, or abandon the same. The judge, at an ex parte hearing of which the petitioner had no notice, declined to authorize such an assignment, but authorized and directed the receiver to abandon the lease and the demised premises, which he did, giving the petitioner notice of the order of the judge, and that he had abandoned the lease and premises in pursuance thereof, and handing him the keys, which, on consulting counsel the next day, he immediately offered to return. The receiver never after the abandonment had any possession, or exercised any act of ownership, or collected any rents. The petitioner declined to take possession, and immediately brought this petition, upon which a hearing and argument was had in November, 1893, and the judge reserved his decision. At the hearing, it was agreed that the petitioner should take possession pending the decision, and collect the rents without prejudice to his claim under the petition, and the petitioner thereupon entered into possession under said arrangement, which lasted till June 16, 1894, and has remained in possession ever since, collecting the rents and profits.</p> <p>In June, 1894, the judge not having rendered a decision on the petition, the receiver renewed the application formerly denied for leave to assign his interest and that of the League in the lease to an irresponsible person, and, after notice to the petitioner and a hearing, the application was granted, and an assignment was made to one Clancy of all the interest of the receiver and the League in the lease and the demised premises. The judge thereupon ruled that the receiver, by reason of the facts above reported, became liable by privity of estate upon the covenants in the lease, and continued so liable until the date of the assignment to Clancy ; and entered a decree accordingly for $5,400, with interest from June 16, 1894; and the defendant appealed. If the above ruling was correct, the decree was to stand; otherwise, a decree was to be entered for the defendant, or for the plaintiff for such part of the above amount as to the court should seem proper.</p>

Two BILLS in EQUITY, filed June 2, 1894, to enforce specific performance of covenants in leases.

<p>Trespass quare Clausum,—Abandonment — Evidence — Res inter alios—Plan.</p> <p>On the issue of the abandonment of part of a railroad location originally five rods wide, evidence was offered that the owner of land adjoining the locus filed a petition to the county commissioners for the assessment of damages for land taken from him, in which it was alleged that the railroad had taken a strip “ four rods in width or thereabouts ”; that damages were awarded, which, by agreement of the parties, were to be paid within a time limited, whereupon the railroad company was to receive a deed of land extending more than two and a half rods on the other side from the centre line of the road and up to the locus; and that the deed was delivered in escrow. The damages were not paid by the company as agreed, nor was the deed delivered to it. Held, that the evidence was inadmissible.</p> <p>On the issue of abandonment of part of a location originally five rods wide, a deed to the railroad company of land eight hundred feet away from the locus, tending to show that the road there was only four rods wide, is inadmissible.</p> <p>On tile same issue, a lithographic plan of house lots, referred to in such deed for the lot conveyed, purporting to show the railroad for a considerable distance including the locus, but not purporting to be drawn to scale, is inadmissible.</p>

Eleven cases for false and fraudulent representations made by the defendant, whereby the plaintiffs were induced to purchase certain bonds whose payment was secured by a mortgage to the defendant of certain real estate in Minneapolis in the State of Minnesota.

<p>The following order was adopted by the House of Representatives on April 15,1895, and thereupon transmitted to the Justices of the Supreme' Judicial Court, who, on May 6, 1895, returned the opinion which is subjoined.</p> <p>Ordered, that the-Justices of the Supreme Judicial Court be required to give their opinion to the House of Representatives upon the following important question of law: Is it within the constitutional power of the Legislature to extend the application of the present law, relative to the weekly payment of wages by corporations, to private individuals and partnerships, as provided in the bill entitled “ An Act relative to the weekly payment of wages,” now pending before the General Court?</p> <p>Ordered, that a copy of said bill be transmitted to said Justices for their information.</p> <p>The copy of the bill was as follows:</p> <p>An Act relative to the weekly payment op wages.</p> <p>Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:</p> <p>Section 1. Sections fifty-one to fifty-four, inclusive, of chapter five hundred and eight of the acts of the year eighteen hundred and ninety-four, relative to the weekly payment of wages by corporations, shall apply to any person or partnership engaged in this Commonwealth in any manufacturing business and having more than twenty-five employees. And the word “ corporation,” as used in said sections, shall include such persons and partnerships.</p> <p>Section 2. This act shall take effect upon its passage.</p>