Volume 164 — Massachusetts Reports

<p>Metropolitan Sewerage Act — Res Judicata — Public and. Private Ways — Prescription— Creation of Additional Servitude — Interruption to Business by Construction of Sewer in Highway — Damages — Hvidence.</p> <p>A relocation of a public way, establishing its termini, is conclusive, and evidence in a subsequent proceeding that a road included in such termini had not originally been a part of the public way, and the testimony of one of the petitioners for the relocation that, when the petition was signed, there was no controversy as to the termini of the public way, is not admissible to impeach the adjudication.</p> <p>A highway by prescription may be relocated as well as a way laid out by a town.</p> <p>The record of the relocation of a highway is admissible in evidence without the production of a plan to which the record refers.</p> <p>The construction by the Commonwealth of a metropolitan system of sewers under a highway in a town does not create an additional servitude for which damages can be claimed by the owner of the fee.</p> <p>Damages cannot be recovered for the temporary interruption of business caused by the construction of a sewer, which the Commonwealth has a right, without a new taking, to construct under a highway.</p> <p>On the issue whether a road over the land of A. was a public or private way, a question to the assessor of taxes for the town in which the land lay, whether in assessing it he had ever deducted a roadway or assessed the land in two parts, is irrelevant, apart from other objections.</p>

<p> Dance Hall as Public Amusement—Statute. </p> <p>A dance hall, to which the public is admitted upon payment of a small fee Is a public amusement, within the meaning of Pub. Sts. c. 102, §§ 115, 116.</p>

<p>Slander by Corporation — Defective Count — Discharge of Servant by Employer —Defamatory Words— Variance.</p> <p>If a count of a declaration in an action of tort for an alleged slander of an employee of the defendant corporation is to be construed as a count for discharging the plaintiff from its employ under such circumstances as to impute to him a charge of dishonesty, it must fail, as an action of tort does not lie against an employer for discharging a servant; nor can it be maintained as a count for slander, if no words are set forth.</p> <p>Even if, in an action of tort for an alleged slander of an employee of the defendant corporation, the words uttered by the defendant's superintendent can be considered defamatory, the action cannot be maintained if there is a variance between the allegations and the proofs.</p> <p>Whether a corporation is liable for slanderous words uttered by an agent or servant in the course of the business in which he is employed, quaere.</p>

<p>Bill in equity, filed November 20, 1894, praying that the defendant corporation be restrained from putting up, selling, or offering for sale any candy or other similar article wrapped and labelled in the manner, or in imitation of the manner employed by the plaintiff. Trial before Morton, J., who entered a decree that the defendant be restrained “ from printing or causing to printed in red upon yellow wrappers, adapted to be used in ffting up molasses candy, substantially in the size, shape, and manner in which said plaintiff, Herbert L. Hildreth, puts up and offers for sale the molasses candy made by him, the name 6 McDonald,’ or any other name, word, mark, or device whereby any candy sold or offered for sale by the defendant shall be caused to resemble in its dress and appearance said candy of the plaintiff, and also from putting up, offering for sale, or selling any molasses candy, or candy similar thereto, put up in yellow wrappers, with the red printing thereon substantially like ” the method employed by the plaintiff, as shown by an exhibit annexed to the bill. The judge, at the defendant’s request, reported the case for the determination of the full court. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1895, and afterwards was submitted on the briefs to all the judges.</p>

Contract, to recover damages awarded by road commissioners in laying out town ways. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, which appear in the opinion. The case was argued at the bar in March, 1895, and afterwards was submitted on the briefs to all the judges.

<p>Action— Co-owners of Steamer — Plea in Abatement — Evidence — Telegraphic Message — Instructions.</p> <p>In an action against two of several owners of a steamer, one of whom was the managing agent, for expenses incurred and services rendered in the superintendence of the building of the steamer, the contention that an action at law will not lie as the plaintiff was a part owner of the steamer cannot be maintained if the jury-are warranted in finding, either that the plaintiff never actually became a part owner, or that, if his ownership was complete, a new arrangement was made which left him as if it had never existed.</p> <p>Two of the owners of a steamer who are sued for expenses incurred and services rendered relative thereto are liable as if they were the sole owners, if they fail to plead in abatement the nonjoinder of the other owners.</p> <p>In an action against A. and B., two of several owners of a steamer, for expenses incurred and services rendered in the superintendence of the building of the steamer, the signing by A. and B. with others of an agreement to take the amounts in the ownership set against their respective names, “ the same to be under the management of A. & Co.,” and of an agreement to pay “ A., managing owner, the sums set opposite our names for the purpose of paying outstanding bills against said boat to date, the surplus amount to be used as working capital for the said boat,” and the testimony that B. visited the steamer and suggested a certain name for her, warrant a finding that both A. and B. were part owners in her.</p> <p>In an action against A. and B., two of several owners of a steamer, for expenses incurred and services rendered in the superintendence of the building of the steamer, it is competent for the plaintiff to show, as bearing upon the defence, that the plaintiff rendered his services and paid his money gratuitously, that he was then engaged in other business at which he was earning a certain amount per day, and also that when he rendered the services he expected to be paid for them; and he may also testify to the price per day that his services were fairly worth.</p> <p>When the sender of a telegraphic message takes the initiative, the message as delivered may, as between him and the person to whom it is sent, be treated as the original, in the absence of evidence to show mistake in the transmission of it, and, on a proper foundation being laid, secondary evidence of the contents of the telegram is admissible.</p> <p>In an action against A. and B., two of several owners of a steamer, for expenses incurred and services rendered in the superintendence of the building of the steamer, an instruction to the j ury, “ that if the plaintiff rendered the services and incurred the expenses in question at the request of A., acting in his own behalf and representing the defendant B., and if the plaintiff rendered said services expecting to be paid for them, he would be entitled to recover the value of his services and the expenses incurred by him,” not given as the whole law of the case, but to be^considered in connection with the other instructions, which required the jury to determine the relation of the plaintiff to the transaction and to the defendant at the time of bringing the suit, is correct.</p>

<p>Statute requiring Railroad Corporation to operate Ferry— Condition Subsequent — Discontinuance of Ferry not an Abandonment — Enforcement of Penalty, which is to go to the Commonwealth.</p> <p>Where a railroad corporation whose charter is subject to alteration by the Legislature has, under legislative sanction, acquired an existing ferry franchise as an extension and part of its railroad line, the Legislature may require such railroad corporation and its successors to operate the ferry, though taken by itself alone the ferry is unprofitable; and may authorize this court specifically to enforce the duty of so operating it.</p> <p>The St. 1894, c. 392, entitled “An Act requiring the Old Colony Railroad Company to operate a ferry across the Acushnet River between the city of New Bedford and the town of Eairhaven,” imposed upon the Old Colony Railroad Company an absolute duty of providing and operating a suitable ferry between New Bedford and Eairhaven, whether profitable or not; and a decree may be made ordering it so to do, without in the first instance specifying what kind of a ferry would be suitable.</p> <p>The St. 1854, c. 124, did not authorize the proprietors of the New Bedford and Eairhaven Eerry to transfer their charter by a deed on condition subsequent; and a deed under said statute is not to be deemed a deed on co idition, although it contains a provision that it is made upon the condition that the grantee and its successors shall at all times discharge the duties and become and remain subject to the liabilities set forth in the charter.</p> <p>A discontinuance for twenty years of a ferry which is a part of a railroad line, without any formal objection, or steps taken by any officer of the Commonwealth or by others to enforce the operation of the ferry, does not show such acquiescence on the part of the Commonwealth in the abandonment of the ferry as to prevent the Legislature from passing a statute requiring the railroad company to operate it.</p> <p>The penalty of one hundred dollars a day for each day’s delay in operating a ferry, provided in St. 1894, c. 392, entitled "An Act requiring the Old Colony Railroad Company to operate a ferry across the Acushnet River between the city of New Bedford and the town of Fairhaven,” cannot be enforced in a suit in equity brought by ten or more citizens of New Bedford or Fairhaven, as therein authorized.</p>

<p>Action — Equity—Co-owners — Disbursements by Ship’s Husband.</p> <p>A ship’s husband made disbursements above earnings for whatever was necessary for the business during a series of voyages. He was a part owner of the vessel at the time, but had sold his share. He sued one part owner at law for his proportion, there being other part owners not settled with. Held, that the action could not be maintained, but that the only remedy was in equity, notwithstanding St. 1887, c. 383.</p>

<p>Where a mortgage upon the real estate of the wife is made by the husband and the wife in her right, to secure their joint and several promissory note, the note will be regarded after his death, upon the petition of his executor to obtain the instructions of the court, as his own personal debt, if that conclusion seems justified by the facts, though meagre, with the inferences that may be drawn from them.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the fall of an iron block from a derrick upon him while in the defendants’ employ. The declaration contained four counts, the first at common law, and the other three under St. 1887, c. 270, § 1, els. 1, 2. At the trial in the Superior Court, before Hammond, J., there was evidence tending to show that the plaintiff, who had been employed by the defendants for about six years, had for the two years previous to the accident been engaged in the quarries of the defendants, assisting about derricks, and doing any work connected with them that was required of him; that at the time of the accident he was working with one Fur-bush in moving a finished stone by means of a boom derrick, and was standing beside the stone to guide it, and almost under the iron block hereinafter mentioned; that the stone, which weighed from two hundred to four hundred pounds, was suspended by a rope attached to a hook at the bottom of the iron block of the derrick, and his back was to the mast of the derrick ; and that this iron block, which weighed about half a ton, was suspended about six or eight feet in the air by means of a rope or fall, which ran from the iron block up to the top of the mast of the derrick to a small block with a sheave in the middle of it, through which it ran, and then ran down the mast to a block at the foot, and then connected with the drum of the engine.</p> <p>While the plaintiff and Furbush were moving the stone, Furbush having his face to the mast and being some distance away from under the block, the fall parted between the end of the boom and the top of the mast, causing the block to fall upon the plaintiff, and to injure him.</p> <p>There was evidence for the defence that this fall rope, which was the best manila, had been purchased in January previous to the accident, which happened in May, and that several weeks before the accident it broke while the derrick was in use lifting a stone which weighed from ten to twelve tons. One Willey, the foreman of the defendants’ stone yard, then discarded part of this fall rope, and spliced another piece on to what was left, and replaced the rope on the derrick. Several witnesses testified that ropes spliced as this one was were as strong as new ropes. It also appeared from the evidence, that, at the time of the accident in which the plaintiff was injured, the rope parted in this splice.</p> <p>The plaintiff contended that the rope or fall had become worn from previous use, and that its parting was due to the negligence of the defendants in not properly inspecting it, and in allowing it to be in a defective and unsafe condition.</p> <p>The defendant contended that all ropes are liable to kink, and that this being a new rope, and at the time having but a light load upon it, was more likely to kink, and that the accident must have happened through the kinking of the rope and its subsequent cutting in the sheave at the head of the mast, and that the position of the block, about six or eight feet above the ground, with reference to that portion of the rope which parted, showed conclusively that it must have parted by being cut by the sheave.</p> <p>The plaintiff testified, that on the day of the accident he was told by Willey to get some stone; that Furbush asked him to help with this particular stone; that at the time he was hurt he was getting on a stone to bring from the stone shed over to the polishing shop to be polished, which stone was two feet square and eight inches thick; that it was about a foot out from under the swing of the derrick; that he was standing between it and the boom of the derrick; that as the stone was a finished one, he was holding it to keep it from striking another stone there; that one man could have turned this stone around alone; that Furbush did not have hold of the stone, but had hold of a tag rope which was fastened to the end of the boom; that the plaintiff had placed a rope around the stone and fastened it to a hook in the iron block which weighed about half a ton; that Furbush sang out to hoist, and the fall rope broke, and the iron block fell and struck him; that there was no tag rope on the iron block or on the stone; that the tag rope on the boom was to pull the boom around after the stone had been lifted high enough ; that if the defendants were hoisting heavy stone they would warn him to look out for a chain breaking or something; and that at the time of the accident he did not know of any defects in the rope.</p> <p>There was evidence for the defendants tending to show that it was the duty of the plaintiff to take stones to the polishing shop, and to and from other places; that it was not a part of his duty either to hoist or to move the stone; that Furbush was at the yard to put stone on to the wagon for the teamsters; that the stones which were put on to a one-horse team weighed from two hundred to two thousand pounds or more, and that the inside purchase or rope was so regulated that the stone would hoist straight; that it would mar the stones to knock against one another; that the teamsters generally helped to load and unload stone, and were permitted so to do; that the plaintiff’s duty was to drive, and he did not have to help load and unload; that the rope, which was made of five strands, and was rove through the block, was an inch and a quarter in diameter, and that the block was about an inch and three quarters in diameter, made of sheet steel, and allowing ample room for the rope or fall to pass through it, even when spliced; that the rope ran from the stone through the snatch block about forty feet to the drum of the engine; that there was a tag rope on the end of the boom; that there was no cut in the rope when the stone was taken out of the wagon, five minutes before the accident happened; that the rope was put in by Willey, or under his directions; that a few weeks before the accident the rope parted when hoisting a very large stone, and Willey got a new piece of rope and spliced it together after taking out about half of the fall rope, which was used up; that the strands were wound in and around one another, so as to make a rope when spliced which would hold as well as a new rope; that this splice was well done; that in putting in new falls they were troubled with kinks and had to take them out; that this rope, being practically a new rope, would be likely to kink if there was any slack in it; that no rope if kinked would stand it when brought against the block at the masthead; that there was no way to guard against these kinks; that the defendants’ theory was that the rope had kinked and the kink had caught in the masthead; that the defendants made no objection to the plaintiff and Furbush hoisting the stone; that the plaintiff was</p> <p>standing almost, but not directly, under the block; that everything was safe and good at the time, including the fall rope; that “ the break looked as though two strands had been cut, or, in other words, as though they had been drawn over a sharp edge or something”; that the thread was pulled out; that these ends “ were just pulled out into a kind of brush end, the same as any rope would part, scraggy ends; that they were not a smooth cut, but practically what one would call kind of a chaw cut, kind of chowed off ”; that this fall rope had been exposed to the weather since January 15, 1893; and that a spliced rope is as strong as a new rope, and a new rope is more liable to kink than an older one.</p> <p>There was also expert evidence tending to show that the rope was as good as could be bought; that the fall, as exhibited, was first class except where it was worn ; that what they call a long splice, made by unravelling and drawing the strands together for a certain distance and then by tucking them under, as in the ease of this fall, made a proper splice, and that the relative strength is usually stronger on the splice; that there are the same number of strands in the splice, but with the ends it makes more strands ; that it would run through a one and three quarters inch sheave all right; that there was no way to prevent kinks, nor to detect them, and that if a rope when kinked caught against anything like the block at the top of the mast it would cut it off; that splices were stronger and would wear longer than the original rope; and that a new rope was a little more likely to kink than an old one.</p> <p>There was also other evidence in support of the plaintiff’s contention that the splice was made in the best possible manner; that there was nothing the matter with the rope; and that the way it was cut showed that there must have been a kink.</p> <p>At the close of the testimony, the defendants requested the judge to rule : 1. That upon all the evidence the plaintiff could not recover. 2. That the mere breaking of the rope was not prima facie evidence of negligence on the part of the defendants.</p> <p>The judge refused so to rule, and, among other things, instructed the jury that, if they found that the rope was defective while in the defendants’ care, that fact was evidence which, unexplained, would warrant them in finding that the defendants were negligent. The defendants alleged exceptions.</p>

<p>Life Interest — Termination of Trust.</p> <p>A bill in equity to compel an absolute transfer to the plaintiff of a fund held for him by the trustee under a will cannot be maintained, if bis interest in the fund is only a life interest coupled with a power of testamentary disposition.</p>

Writ of entry, dated October 13, 1892, to recover a parcel of land in Stoughton. Plea, nul disseisin: The case was submitted to the Superior Court, and, after judgment for the tenant, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion.

<p>Pleading— Constitutionality of Statute — Evidence — Statute — Instructions.</p> <p>An action for money had and received can be maintained under St. 1890, c. 437.</p> <p>The St. 1890, c. 437, entitled “An Act relative to wagering contracts in securities and commodities,” is constitutional.</p> <p>In an action under St. 1890, c. 437, entitled “ An Act relative to wagering contracts in securities and commodities,” against A. and B. to recover money alleged to have been paid first to A., the plaintiff’s agent, who afterwards paid it over to B., a broker, for the purchase of certain securities, it is competent for the plaintiff to show that A. had no intention to perform the purchase by the actual receipt of the securities and payment of the price; and if B. wishes the testimony to be limited to its effect as against A. himself, assuming that it should be so restricted, he should request the court so to limit it.</p> <p>While it is a general rule that separate and distinct acts unconnected with those in suit are not admissible for the purpose of raising an inference that a party did the particular thing which he is charged with doing, yet, in an action under St. 1890, c. 437, relative to wagering contracts to recover money alleged to have been paid to a broker for the purchase of certain securities, evidence may be received of such acts, if so near in time to those in suit and so connected with them that they may fairly be regarded as having some tendency to show that the defendant had reasonable cause to believe that no intention existed actually to perform the contracts.</p>

<p>Contract on a guaranty. Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, in substance as follows.</p> <p>In 1890 certain persons undertook the reorganization and capitalization of the Economo Duplex Stove Company, a corporation formed for the purpose of manufacturing stoves and ranges, with a view to manufacturing a more satisfactory range than the company had theretofore produced.</p> <p>In pursuance of this plan the treasurer of the company, A. J. Webb, on August 8, 1890, wrote to the plaintiff, who was a manufacturer of stove patterns in Troy, New York, enclosing specifications for a new range, and asking for an estimate of the cost of patterns. In this letter he said: “We have some money on hand that would enable us to go part way, at least, with a set of patterns, and I think we can get support that will enable us to complete them.” To this letter the plaintiff replied, on August 4, estimating the cost of wooden patterns of the proposed new range at from six to eight hundred dollars, and suggesting a personal interview.</p> <p>In September of that year there was an informal meeting of the officers and stockholders of the company, at which the defendant was present, and the plans of reorganization and the preparation of new patterns were then considered.</p> <p>The treasurer of the company testified that at this meeting a proposition was made by some one present to be one of several to advance a sum sufficient to order a complete set of wooden and iron patterns, and the president of the company, Walter H. Homans, testified that the defendant said he had a friend who intended to buy a thousand dollars’ worth of stock, and that he, the defendant, would pledge himself $500 on this set of patterns if necessary; that after the informal meeting the defendant withdrew, and a meeting of the directors was held, at which, in reliance upon the defendant’s guaranty of a sum to pay for the patterns, it was voted to send Webb to Troy to order them.</p> <p>On the day following the meeting, the vote of the directors was brought to the attention of the defendant by Homans, who then, or later, obtained from him, out of the proceeds of the sale of certain shares of stock of the company held by him in trust, a sum of money to defray the expenses of Webb’s journey to Troy, the purpose of which was understood by the defendant. On cross-examination, Homans testified that he did not understand that the order was to include wood and iron patterns ; that nothing was said about wooden patterns, but it was understood simply that Webb was to go to Troy and order patterns, which, it was supposed by the witness, would be a complete set.</p> <p>Thereafter Webb went to Troy, and ordered of the plaintiff a set of wooden patterns in case the cost did not exceed $500, and at the same time represented that the defendant, who was financially reliable, was to be the responsible party, and he suggested that the plaintiff write to the defendant to obtain a corroboration of his representations. The plaintiff, therefore, on October 7,1890, wrote to the defendant:</p> <p>“ In minuting the preliminary details for a new set of range patterns for the Duplex Range Co., Mr. Webb mentions your willingness to, in some way, become responsible for work to the amount of $500, and suggests that you will doubtless drop me a note to that effect. Our transactions with Mr. Webb have so indorsed his unchallenged integrity that I regard this letter as superfluous, but I write in harmony with his suggestion, and we hope to get up a real marketable construction.”</p> <p>On October 8, the defendant replied:</p> <p>“ Your esteemed favor of the 7th inst. just received. I feel sure that your confidence in Mr. Webb is well placed, but I hereby signify my willingness and intention to become responsible for the work of the new pattern, size No. 7, of the Duplex Stove Company to the amount of $500, in the event of any such action on my part becoming necessary for any cause. I suppose Mr. Webb has informed you of the approaching dissolution of the old company, under competent legal management, selected at my suggestion, and the prospect of a reorganization with a new charter and a working capital of $25,000; and this to be accomplished in the next few weeks, in season, I have no doubt, for the prompt settlement of your bill in full. The affairs of the company are in experienced and able hands, and with thoroughly enlisted interest, through the assurance of a handsome block of the stock of the new company.</p> <p>“ You give me hope of the ‘ real marketable construction ’; this is essentially necessary to the success of the enterprise. Any failure or deficiency in this matter will block the wheels of. the new company effectually. For a good working stove of well-nigh perfect mechanical construction and adaptation to average drafts of city houses confronts us at this juncture of our affairs, either as a 1 will-o’-the-wisp ’ which cannot be attained, or as a solid fact. Even I myself am shaken in my faith in the enterprise, through the outrageous faults of construction of the range in my own kitchen, size No. 9, sold me by the Economo Duplex Stove Company last spring. Its fire pot is inadequate to heat the oven, even burning soft coal, without adding a fire of wood in the wood fire pot, so I am told by my cook, and its construction is such that it has warped the stove in such a manner that in three months more, at the present rate, I shall be obliged to have it taken out of my kitchen, and the range of any other company substituted, to the scandal of our friends. The present direct draft carries the heat right up the chimney, which should circulate around the stove. I do not pretend to be in the least an adept in this matter, and write you in the most friendly spirit, believing in your ability and interest in the success of our com pony, with the hope that you will labor earnestly (with Mr. Webb) in the correction of the mistakes in range No. 9.</p> <p>“ I have abiding faith in the underlying principles aimed at by the patents of this company, but I wish to see a stove in Boston that I shall not be ashamed to show my wealthy patients and friends, as I am getting to be ashamed of the one in my own kitchen. I presume, without doubt, that the principal trouble with my own stove, as with the five or six last made by you, lies in the fire pot. It is a radical fault, destructive, if continued, to the hopes of the company.</p> <p>“ I presume Mr. Webb is more thoroughly aware of this fault than myself, but I feel too deeply in this matter to remain silent, if any words of mine can help the company.</p> <p>“ It is strange that the range in Lexington, at Mr. Homans’s house, should work so satisfactorily, as I know it does, and all the others of size No. 9 prove such total failures. The difference must lie in the adaptation of the fire pot, I suppose, for it seems to me it cannot be wholly a question of draft. My draft here, on the Back Bay, is fully as strong as his is.”</p> <p>The plaintiff testified that Webb ordered a set of wooden patterns; and stated to him that the sole condition upon which the order was given was that the defendant had guaranteed the expense to the amount of $500, and that the execution of the order was left contingent upon the defendant’s confirmation of bis statement; that the witness wrote to the defendant at Webb’s suggestion, and relied on the defendant’s assurance contained in his letter of October 8.</p> <p>There was evidence that the plaintiff made a set of wooden patterns as ordered by Webb, in accordance with the specifications, at a cost of $500, for which he had not received payment.</p> <p>About October 15, 1890, Webb sent to the defendant the specifications for the patterns, and, later, a letter of the plaintiff to him dated October 11, in which the plaintiff said: “ Unless more work than we can foresee is required, we shall be able to produce the wood patterns, cast the iron patterns, file, joint, wax, and followboard complete for less than $900.”</p> <p>Webb further testified, for the plaintiff, that after his return from Troy he called on the defendant, with whom he talked over the whole matter, and that thereafter he kept him informed of what was going on ; that about October 8 the defendant asked him whether the plaintiff had. sent his bill, and if he had not the defendant requested the witness to ascertain when he would send it, which the witness did; that at one of his interviews with the defendant the latter made a statement signifying that he expected to pay the bill when it came; not in terms, but in a remark to the effect that he would settle the bill if he had to sell a dog, or something of that sort.</p> <p>There was evidence tending to show that, while the proposed reorganization was under consideration, and until after demand made for payment of the bill on February 17, 1891, Homans was in almost daily communication with the defendant, and both Webb and Homans testified that they had never heard any suggestions from him that he expected anything other than a set of wooden patterns to be made.</p> <p>The defendant testified that, at the informal meeting, in response to a request of the president of the company for a statement of his views, he said that he was certain of having $500 paid to him by a friend for new stock of the company as soon as it was reorganized, but that he made no guaranty of any accounts to be opened by the company for new range or patterns, or any other statement in regard to guaranteeing as a basis for the action of the company, except the expression of his hope of selling the new stock ; that although he was a shareholder, he was not an officer of the company; that in 1890 he was authorized by the company to attempt its capitalization, and to sell stock on .commission; that the proceeds of one of such sales were, at the request of Homans, held by the witness in trust for the uses of the company, out of which from time to time he paid to Homans certain sums, including the $25 used by Webb for his expenses to Troy.</p> <p>On October 28, 1890, the defendant wrote to Homans :</p> <p>“ I am feeling much more hopeful of our success ultimately. Mr. Chase called on me, and we had a pleasant chat for two hours last Friday. I guaranteed his stock, and should Mr. Bascom demand payment in advance of our reorganization and replenishment of the treasury by the raising of the $25,000, I shall now meet him as promptly as possible. I hope, however, that we shall be ready for his entire bill in January, thereby saving me any loss through the guarantee of Mr. Chase’s stock. I am hopeful that Mr. Chase will release me from this obligation of personal guarantee as soon as we are reorganized and the money put into the treasury, as promised by Mr. Houghton.”</p> <p>The defendant, in explanation of this letter, testified that he had arranged to sell to one Chase five hundred dollars’ rvorth of stock in the company, with the agreement that he, the defendant would see that Chase suffered no loss thereby, and would make good the five hundred dollars’ worth of stock unless Chase received it in some other way, and that the previous suggestions made by him with regard to furnishing money to the company for the purpose of getting patterns were based on this sale of stock to Chase, from which only he expected to get the money. On cross-examination he testified that his holding out the prospect of his being able to pay $500 was based upon his certainty of deriving that amount from Mr. Chase for the sale of the new stock under the reorganization; that he was promising this as treasurer; that he already held $290; that he was not actually treasurer of the company, but a trustee, and expecting, upon the reorganization, to become treasurer.</p> <p>On February 14, 1891, Webb wrote to the plaintiff:</p> <p>“ From what I have heard indirectly from Dr. Smith I feel convinced that he will argue the matter of your bill. I am also satisfied that he will have nothing important to say to us here. I think he will write to you, and very likely has already.</p> <p>“ In view of what I now understand about the matter, I shall authorize you to state that there is no money in the treasury of the Economo Duplex Stove Company with which to settle your bill, and that the bill falls under the terms of Dr. Smith’s agreement, wherein he assumed responsibility for the bill to the amount of five hundred dollars in case of emergency. I shall also advise you to the effect that, if you fail to hear from Dr. Smith at once, or if he discloses a disposition to delay the matter or evade the payment, you proceed immediately to demand the settlement of the account by him in accordance with the terms of his agreement, and then, if you fail to elicit a satisfactory response, that you proceed to collect the bill by law.</p> <p>“I regret that I did not know of his disposition earlier. He had referred to the matter in conversation with me, and stated explicitly that he should settle the bill. He does not now say that he will not pay it, but does speculate as to whether he must do so. This implication is my ground for the statements of this letter. Dr. Smith is financially good for the bill, and I do not believe he would ever allow himself to be sued for it. I believe that decided yet friendly demand for the settlement would be sufficient. The matter now evidently lies between you and Dr. Smith, and I do not know that I can help the matter along in any way. I have no recommendations to offer other than prompt and decided action upon your part.”</p> <p>On February 16, Homans wrote to the plaintiff:</p> <p>“ I think I owe you a few lines explaining the present state of affairs of the Economo Duplex Stove Company, especially as you have written Mr. Webb that you need a remittance from us for that part of the work on our ne>v range which you have now done. I am carrying the whole enterprise this winter practically alone, and at a great disadvantage on account of having no stove to exhibit. Dr. Smith’s stove is broken down through its imperfect fire pot. We have renewed it several times, but the plates have been badly warped and the stove is not fit to show. I cannot get people out to Lexington to see my own, which is in good order, because it is so far from Boston.</p> <p>“ Dr. Smith tells me that he has been unable to do anything for us whatever in the way of influence, on account of our not having the new range completed and sent to Boston for exhibition, as he expected was to be done. Stock which he had already conditionally sold could not be delivered on this account, as it was subscribed for conditionally upon the reorganization of the old company, and the possession of a complete working range such as we hope you have now under way.</p> <p>“ I am sorry that, through Mr. Webb’s caution in ordering you to go no further than the completion of the wooden patterns, our money affairs have become so embarrassed again; for we were placing stock with every prospect of getting out of the hole we were in when Mr. Webb took this position regarding the new range. It practically trigged our wheels. Mr. Webb is a very cautious and thoroughly honorable man, and meant right. I suppose he thought we should before this have sold some of our stock, and ordered the completion of the new range.</p> <p>“ I have not cared to ask you such a favor without a remittance, and have been doing my best to dispose of an interest in our company in order to start things up. I am negotiating with several parties who have followed me about the past two months, but who offer me too low a figure; perhaps I have been asking too high. We shall come to an understanding, I trust, and as soon as we do you will have the remittance of the amount owed you by our company.</p> <p>“ You have dealt with us enough to know that we are honest, and also capable of paying our debts. If you will only have patience, everything will be all right.</p> <p>“ I hope you will not present your bill to Dr. Smith under all the circumstances, for we have been unable as a company to keep our pledges with him, having failed to reorganize as agreed, on account of our embarrassing situation with the old range and the completion of the new one blocked: neither have we been able to put ourselves in a position to deliver him the block of stock promised him, or to elect him treasurer of the company, as he expected. He is interested and friendly, believing in our range still, notwithstanding his hard experience with the one sold him; and if we can only get a new range under his eye, he will feel that he can conscientiously recommend our stock to his wealthy friends. As it is, he cannot in honor dispose of any of the stock, he says.</p> <p>“ Your correspondence had better be with me, as I am really the working and active representative of the company. I hope this letter will offer you a clear view of the situation of our affairs. I am far from being discouraged, but I am very tired of waiting so long for our affairs to turn towards success, which I believe is just ahead.”</p> <p>The defendant testified that the last letter, purporting to be signed by Homans and addressed to the plaintiff, was dictated by Homans at the defendant’s house and in his presence, and that he was consulted with regard to said letter, and made suggestions, and there was evidence tending to show that the letter was afterwards written out-by the defendant’s stenographer and sent to Homans to be signed, but Homans denied having signed the letter, and the plaintiff denied having received it.</p> <p>There was evidence tending to show that the defendant had in his possession the stock certificate book and all the funds belonging to the corporation, the funds being the proceeds from sales of stock; that the defendant knew the resources of the corporation, and knew that it had no funds except such as might come from the expected sales of stock, and must have known that a complete range, or a set of both wood and iron patterns, would cost more than $500.</p> <p>On February 17, 1891, payment was demanded of the defendant by letter.</p> <p>The defendant contended that the contract between the plaintiff and the corporation, being a contract for wooden patterns alone, was not such a contract as was contemplated or intended either by the company or by himself; that it was not the contract which he understood was to be made, and was a contract so materially at variance with what the parties intended as not fairly to come within the terms of the guaranty, and that therefore he could not be bound.</p> <p>At the close of the testimony the defendant requested the judge to rule that the evidence was insufficient to warrant a verdict for the plaintiff; but the judge declined so to rule, and the defendant excepted.</p> <p>The defendant then requested the judge to rule: “ 1. That the letter of the defendant to the plaintiff, October 8, was not an absolute guaranty, but merely an offer of guaranty on certain conditions therein stated. 2. That acceptance was necessary within a reasonable time to bind the defendant on such guaranty before it could become operative as a subsisting contract between the defendant and the plaintiff. 3. That making the patterns was not an acceptance without notice to the defendant that such action was taken relying on said proposed guaranty, and such notice must be plain and explicit, and brought to the knowledge of the defendant. 4. That a delay of five months before notice to' the defendant of any intention to hold him liable was unreasonable, and such notice after such a lapse of time was not sufficient to bind the defendant on the overture of guaranty in October. 5. That inasmuch as this was, upon the contention of the plaintiff, a promise to pay the debt of another, it comes within the statute of frauds, and the agreement, if any, must be in writing, and therefore oral expressions of a desire or intention to settle the controversy without suit would not be sufficient to bind the defendant to pay the debt of the company. 6. That if the jury find that there was an offer of guaranty to the company, or a contract with the company, such guaranty or contract would not warrant a verdict for the plaintiff in this case, for, in order to recover, the plaintiff must prove a contract between himself and the defendant. 7. That the letters show not an absolute guaranty, but an offer of guaranty, which, to bind the defendant, should have been accepted within a reasonable time; and as there is no evidence of acceptance until the letter of February 17, calling for payment, there is no evidence of an acceptance within a reasonable time, and no evidence of any guaranty on which the defendant became bound to the plaintiff.”</p> <p>The judge declined so to rule,- and the defendant excepted.</p> <p>The judge instructed the jury in substance as follows.</p> <p>The question in this case is, What is the contract? But precedent to that is the inquiry, What was the contract between the plaintiff and the Economo Duplex Stove Company, which, it is agreed, is the party originally responsible for the work done by the plaintiff ? The plaintiff’s theory of the case is, that in September or October, 1890, the Stove Company not having been successful in selling its ranges or in obtaining sufficient capital to carry on its business, an informal meeting of its stockholders was held to consider the prospects of the company, and to take measures to make the business a success; that the defendant was present at that meeting, and consulted with Homans, the president of the company, with reference to raising capital for the purpose, in the first place, of procuring a set of patterns for a new range, which it was hoped would be satisfactory, and a merchantable and effective article in the market. There was evidence that some one present at the meeting offered to be one of six to raise two hundred dollars apiece for the purpose of procuring a set of patterns, but that the offer was not accepted by any of the others; that subsequently the defendant said to Homans that he would be willing to be responsible to the extent of |500 for the purpose of getting a set of patterns made, such as they wanted, and that shortly thereafter the directors of the company voted to accept the proposition, and to authorize Webb to go to Troy to consult with the plaintiff and to contract with him for a set of patterns; that after the meeting Homans went to the defendant and obtained from him the sum of $25 to pay the expenses of Webb in going to Troy, stating to the defendant why the money was wanted, and for what purpose it was to be used; that the money came from the proceeds of certain shares of the stock, said by Homans to have been owned by him and sold with his consent, which the defendant held in trust for the purposes of the company. After that Webb went to Troy and had an interview with the plaintiff, in which they discussed the details of the patterns, and Webb said to the plaintiff that he had come to order a set of patterns for other parties; that he was unwill-, ing, as an officer of the company, to taire the responsibility of ordering them, because there was no money in the treasury of the company to pay for them, but that Dr. Smith, who was financially responsible, had agreed to become responsible for the getting up of the patterns to the extent of $500; and he suggested' that it would be well for the plaintiff, before the work was begun, to obtain a confirmation from Dr. Smith of his statement, whereupon the plaintiff wrote to Dr. Smith: “In minuting the preliminary details for a new set of range patterns for the Duplex Range Co., Mr. Webb mentions your willingness to, in some way, become responsible for work to the amount of $500, and suggests that you will doubtless drop me a note to that effect. Our transactions with Mr. Webb have so indorsed his unchallenged integrity that I regard this letter as superfluous, but I write in harmony with his suggestion, and we hope to get up a real marketable construction.” In reply, the defendant, on October 8, 1890, wrote a letter of which the following is the portion which relates directly to the contention of the plaintiff that the two letters considered together constitute a contract of guaranty: “ Your esteemed favor of the 7th inst. just received. I feel sure that your confidence in Mr. Webb is well placed, but I hereby signify my willingness and intention to become responsible for the work of the new pattern, size No. 7, of the Duplex Stove Company, to the amount of $500, in the event of any such action on my part becoming necessary for any cause.” Thereafter the plaintiff completed a set of wooden patterns in accordance with the terms of the contract made with Webb, the specifications of which, the plaintiff contended, contemplated the manufacture of wooden patterns only, and not iron. Thereafter, on October 28, 1890, the defendant wrote to Homans a letter, a portion of which is as follows: “ I am feeling much more hopeful of our success ultimately. Mr. Chase called on me, and we had a pleasant chat for two hours last Friday. I guaranteed his stock, and should Mr. Bascom demand payment in advance of our reorganization and replenishment of the treasury by the raising of the $25,000, I shall now meet him as promptly as possible. I hope, however, that we shall be ready for his entire bill in January, thereby saving me any loss through the guaranty of Mr. Chase’s stock. I am hopeful that Mr. Chase will release me from this obligation of personal guaranty as soon as we are reorganized and the money put into the treasury, as promised by Mr. Houghton.”</p> <p>There is evidence that, on February 16, 1891, a letter was written which, the defendant says, was dictated in his presence by Homans, to the composition of which he gave certain suggestions, and the contents of which he knew, which was taken subsequently to Homans to be signed, and which, as stated by Stiles, was signed by Homans, and that the letter addressed to Bascom at Troy was mailed. Part of it is as follows: “ I hope you will not present your bill to Dr. Smith under all the circumstances, for we have been unable as a company to keep our pledges with him, having failed to reorganize as agreed, on account of our embarrassing situation with the old range and the completion of the new one blocked; neither have we been able to put ourselves in a position to deliver him the block of stock promised him, or to elect him treasurer of the company, as he expected.” On February 17,1891, the plaintiff demanded payment of his bill, according to the terms of the guaranty, to which no reply was made. In determining what this contract is, some light is thrown upon it by the parties themselves, and by their relations to the enterprise. The plaintiff is a manufacturer of patterns, and the defendant is a physician, who, interested as a stockholder in the company and desirous of its success, was present at the negotiations for a reorganization and capitalization. He had in mind the sale of stock to other persons interested in the company, and as a preliminary to such sale it was desirable that there should be a set of patterns or a complete range in order that the practical success of the enterprise might be demonstrated. These, and other circumstances to which attention has been called, are to be considered in determining what the contract was. It is not disputed that the contract between the plaintiff and the company was for a set of wooden patterns, and if that was so, what was the contract between the plaintiff and the defendant? In other words, is it established that there was a guaranty of the expenses to be incurred in making these patterns? That is the exact question.</p> <p>It is claimed on the part of the plaintiff that this was an absolute contract of guaranty; that upon its face it is as though it were written in this way: “ If you will make a set of patterns for the Economo Duplex Stove Company, I will be responsible for the expense of making them to the amount of $500. If they do not pay, I will.” Or: “ I will guarantee the payment of the bill. ” The defendant says that that is not so; that this is a conditional contract; that it is nothing more than an offer that, upon the happening of a certain contingency, he will be bound to pay it. Upon the face of the papers themselves there is this contingency about it, and only this : that he will be responsible for that bill to the amount of $500, in the event of any such action on his part becoming necessary. If we had nothing but the papers themselves to construe, it might be doubtful what they meant. But when the evidence in the case showing the relations of the parties toward each other, their action with reference to the original contract, and their knowledge of the circumstances and the facts, and the manner in which the parties themselves subsequently treated the contract is taken in connection with the papers themselves, then' the contract, if the facts are such as the evidence, to which reference has been made, tends to establish, means this: “ I will be responsible for the payment of the expense of making a set of patterns to the amount of $500, provided the company becomes unable for any reason, or is unable for any reason, to pay the amount.” That is what it means in the light of those facts. It might be, as contended by the defendant, and it would be the law, that if there were a contingency involved in that letter, or one that could be inferred from it in the light of the circumstances upon a fair construction of it, the happening of which the defendant would not know, he would be entitled to notice of it before he would be bound. But in the light of these facts, if they are established, no possible contingeny could arise except the non-payment of the bill by the company, and that was known to the defendant, who knew the condition of the company and expected to be its treasurer. No notice therefore of facts not within his knowledge, or óf the acceptance of the guaranty, in view of these facts, if established, was necessary. So that the sum and substance of the agreement of the defendant is this: “ I will pay this bill to the amount of $500, the expense of getting out this set of patterns, provided the company does not pay it.” The defendant contends that he did not understand that he was making a guaranty by writing this letter, which was an absolute guaranty, but supposed he was making an offer of guaranty. A paper like that is to be construed most strongly against the man who writes it. If it is capable of two constructions, the court will adopt the on!e which is most favorable to the other party, because the man who writes the language is bound by it to any fair construction, any honest and reasonable construction, that can be put upon it, even although there is another that is more favorable to him.</p> <p>There is another matter to which I ought to refer, and that is the contention of the defendant that there was no guaranty of this contract, because he did not understand that the contract between the company and the plaintiff was a contract to make wooden patterns alone, but that he understood that the contract was to make a complete set of patterns, wood and iron both ; and that inasmuch as he understood it that way, that was the contract, and not the contract to make a set of wooden patterns alone; and he agreed to guarantee a contract which, it appears upon the plaintiff’s own showing now, was not the contract which he understood he was guaranteeing, and that therefore he is not bound. The contention is not correct. If a man undertakes to guarantee a contract which he may know the terms of upon inquiry, and he makes no effort to find out what the terms are, but guarantees it, says, “ I will guarantee that contract,” and nobody misleads him about it, and he has an opportunity to know what it is if he sees fit, but does not take pains to find out, but guarantees it without knowing, he is bound. Now, whether that applies in this case will be determined upon the evidence.</p> <p>No question was made in this case that there was not seasonable demand made for the payment of the bill, provided the guaranty is a guaranty by which the defendant is bound.</p> <p>It is not contended that the defendant is bound to pay this debt because of admissions that he made subsequently. Those were put in for the purpose of showing the situation of the parties, their relations to each other, their knowledge of the circumstances, and their subsequent action in interpreting, the contract which it is contended was made. .</p> <p>The plaintiff must prove between himself and the defendant a contract of guaranty. An offer of guaranty would not be sufficient.</p> <p>At the conclusion of the charge and before the jury retired, the defendant saved exceptions to the charge as to the following points. 1. As to the part of the charge wherein the letters of October 7 and 8 are construed as an absolute guaranty, and that no notice of acceptance was necessary. 2. As to the instructions that said letters are to be construed most strongly against the defendant. 3. As to that part of the charge instructing the jury as to the defendant’s contention that the contract made at Troy for wooden patterns alone was so materially at variance with what the parties intended as not to come fairly within the terms of the alleged guaranty.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract, against the executor of the will of Thomas O. H. P. Burnham, to recover a legacy. Writ dated September 12, 1898.

Tort, for personal injuries occasioned to the plaintiff while in the defendants’ employ as an elevator tender.' Trial in the Superior Court, before Hammond, J., who, at the defendants’ request, ruled that the action could not be maintained, directed a verdict for the defendants, and, at the plaintiff’s request, reported the case for the determination of this court.

<p>Creditor’s Bill — Judgment— Two Suits for the same cause of Action — Equity Jurisdiction — Statute — Amendment.</p> <p>A debt need not be reduced to a judgment in order to maintain a bill in equity, under Pub. Sts. c. 161, § 2, cl. 11, and St. 1884, c. 285, to reach and apply in payment of a debt property of the debtor which cannot be attached or taken on execution at law.</p> <p>A bill in equity, under Pub. Sts. c. 151, § 2, cl. 11, and St. 1884, c. 285, on a legal cause of action, should set out the cause of action as specifically as is required in an action at law.</p> <p>While a court of law will not permit a defendant to be vexed at the same time, in the same jurisdiction, by the prosecution of two suits for the same cause of action by the same plaintiff, a court of equity, instead of dismissing the second suit, usually permits the plaintiff to elect which suit he will proceed with, and when the plaintiff has brought an action at law and afterwards a suit in equity, if the plaintiff - elects to discontinue the action at law, he usually is permitted to prosecute the suit in equity.</p> <p>Whether a bill in equity, under St. 1884, c. 285, to reach and apply property of a debtor in payment of a debt, will lie when the claim is for less than twenty dollars, quasre.</p>

<p>Pleading — Malicious Interference with another's Affairs.</p> <p>The law of slander applies to a case of words privately spoken in order to persuade the person to whom they are spoken to do what he has a legal right to do, namely, to refuse to enter into certain contracts.</p> <p>A demurrer to a declaration in an action of tort, for damages occasioned by words privately spoken by the defendant in order to persuade the person to whom they were spoken to do what he had a legal right to do, namely, to refuse to enter into certain contracts, is rightly sustained, if the declaration does not set out the words spoken in any form, and does not allege that they were falsely spoken.</p>

<p>Land taken for Public Improvement—Damages—Evidence — Experts—Value.</p> <p>Evidence of the distance which a house has been moved is incompetent as a basis for an inference as to its strength and the character of its construction.</p> <p>An expert on real estate values cannot be asked whether a tract of land containing a little less than ten thousand feet is large enough for both a house and a stable.</p> <p>An expert on real estate values, who, on cross-examination, denies that several years previous to the controversy he had said that he was not familiar with land values in a certain locality, cannot be contradicted on that point.</p> <p>An expert on real estate values who has estimated the value of certain land may be asked on cross-examination, for the purpose of controlling the reasons given by him for his opinion, whether he had not for one or two years held for sale other land in the vicinity, and had been instructed to ask therefor a price which was about one third of the valuation placed by him upon the land in question.</p> <p>An expert carpenter and builder who has examined the exterior of a house and has measured its exterior dimensions, but has not been inside of it, is competent to express an opinion as to its value in reply to a hypothetical question describing the interior of the house.</p> <p>At the trial of a petition for the assessment of damages for land taken by the right of eminent domain on the issue of value, evidence is admissible of sales of other land in the vicinity two years before the taking, where it appeared that there had been no more recent sales, and that there had been no great increase in values since then.</p> <p>At the trial of a petition for the assessment of damages for land taken by the right of eminent domain, on the issue of value evidence is admissible of sales of other land in the vicinity, notwithstanding some differences in size and the character of the buildings- thereon between the other estates and the estate in controversy, if, in the opinion of the presiding judge, on all the evidence, there were material considerations common to and affecting the value of all the estates in the vicinity.</p>

<p>Land taken for Public Improvement — Damages — Evidence—Expert.</p> <p>On a petition for a jury to assess damages for the taking of land under a statute for the purposes of a public park, questions were put by the petitioner, on cross-examination, to a witness, A., who owned land near to the land in question, whether there were not restrictions upon his estate, and whether they did not enter into the price, which questions were excluded. Subsequently an attorney testified at length to the state of the title, describing the restrictions, and saying that he never was fully satisfied as to the title, but that he was content for the purchaser to take it. A. testified as to the price which he paid, and the circumstances surrounding the sale, and to his conversation with the seller regarding it. Hdd, that the petitioner was not prejudiced by the exclusion of the questions.</p> <p>On a petition for a jury to assess damages for the taking of land under a statute for the purposes of a public park, the petitioner has no exception to the exclusion of a question, on cross-examination, to a witness who owns land near to the land in question, as to whether there was any topographical resemblance between Ms estate and the estate in question.</p> <p>It is not necessary, in order to qualify a witness as an expert as to value of real estate, that he should have lived in the locality about which he is testifying, or should have bought, or sold, or owned land there. His competency depends upon other considerations, such as his knowledge of values in the particular locality, the extent of his experience regarding real estate in the city or town where the property is situated, and the attention which he has given to the subject generally.</p>

<p>Land taken for Public Improvement — Damages — Evidence — Instructions.</p> <p>On the assessment of damages for the taking of land by a city under a statute for a public park, the petitioner has no ground of exception to the admission of evidence of the sale of a neighboring estate two and a half years before the taking in question, if it cannot be said that the estate was so unlike the petitioner’s estate that the price paid for it would furnish no criterion as to the value of the latter, and that the ruling admitting it was clearly wrong, as it must appear to have been to justify the court in holding that the discretion of the presiding justice was improperly exercised; and if it does not appear that the introduction of electric cars in the neighborhood about a year and a half after the sale had affected prices so much, or that the general rise in values had been so great, as to render the sale misleading as a standard of comparison.</p> <p>On the assessment of damages for the taking of land by a city in December, 1892, under a statute for a public park, the petitioner has no ground of exception to an instruction to the jury that, if the scheme of public improvement existing in April, 1892, when all the land in the neighborhood except the petitioner’s estate and two adjoining estates had been taken, did not contemplate the taking of the petitioner’s land, he would be entitled to recover damages for the enhanced value resulting from such scheme, but that if it did he would not; and it is competent for the jury to find that the scheme contemplated the taking of the petitioner’s land from facts presented and from inferences to be drawn therefrom, although there is no direct evidence to the point.</p>

<p>Contract, against James F. Mullen, upon the following promissory note:</p> <p>“ $1,000. Boston, Feb. 2, 1893. Four months after date, I promise to pay to the order of James F. Mullen one thousand dollars, payable at . Value received. L. H. McDermott. [In pencil] 76 Chauncy Street.”</p> <p>Indorsements: “ James F, Mullen, Theodore Pinkham, Congress Street [in pencil], C. M. Farnsworth, F. & Hoyt [in pencil].”</p> <p>At the trial in the Superior Court, without a jury, before Dimbar, J., the defendant requested the judge to rule that, upon all the evidence, the plaintiff was not entitled to recover, because there was no evidence of demand on the maker, and no legal excuse for the omission thereof. The judge declined so to rule, and ruled, as matter of law, that, there being no dispute as to the facts relating to the question of diligence, due diligence had been used to find the maker, and found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Contract, upon a promissory note, of which the following is a copy: “$500. Boston, May 1, 1891. On demand, after date I promise to pay to the order of Hollis Bowman Page five hundred dollars, payable when payor and payee mutually agree. Value received. ' Grace V. Cook.”</p> <p>Answer: 1. A general denial. 2. That the suit was prematurely brought. 8. That while the plaintiff was a pupil of the defendant he deposited in her hands five hundred dollars, as a payment for instruction in singing, then already and to be thereafter received, as the plaintiff should request, until the entire five hundred dollars should be expended; that the plaintiff had received much valuable instruction, and the defendant had requested him to continue to receive instruction; and that the defendant had been and was ready to fulfil her contract, and had so informed the plaintiff verbally and by written communication.</p> <p>Trial in the Superior Court, before Sheldon, J., who directed the jury to return a verdict for the defendant, and reported the case for the determination of this court, in substance as follows.</p> <p>It appeared that the note was given by the defendant to the plaintiff in consideration of the sum of five hundred dollars, delivered by him to her. There was no evidence that the parties had ever agreed upon a timé when the note should become payable ; but it appeared that the plaintiff had, before the date of the writ, demanded payment of the defendant, and the defendant had refused payment; and it was agreed that thirty dollars had been paid upon the note.</p> <p>If the ruling was wrong, the verdict was to be set aside, and judgment was to be entered for the plaintiff for the amount of the note, with interest from the date of the writ, to wit, June 27, 1893 ; otherwise, judgment was to be entered on the verdict.</p>

<p>Contract, to recover $660.60 received by the defendant to the plaintiffs’ use. Trial in the Superior Court, without a jury, before Mason, C. J., who allowed a bill of exceptions in substance as follows.</p> <p>It appeared in evidence that the defendant’s intestate, Benjamin Low, was the owner of a schooner whereof one McKinnon was master; that on or about February 21, 1893, McKinnon, acting for Low, proceeded to Boston with a part of a cargo of herring belonging to Low then on board the schooner, there to sell the herring if he could find a purchaser, or, if he deemed it advisable, to employ a commission merchant to sell the same, and that upon the arrival of the vessel at Boston the master went to the office of Potter and Wrightington.</p> <p>The plaintiffs called as a witness one Charles W. Wrightington, a member of the firm of Potter and Wrightington, who testified that the master came to his office and offered to sell him the fish; that fifty cents a hundred was the canning price for herring at that time, and that he only bought for canning purposes; that he said he would take some of the fish at half a cent per pound ; that the master told him he might have what he wanted at that price, and that it was agreed that he might send his teams to the vessel, and that whatever fish were delivered to the teams there he might have for half a cent per pound; that orders were given for his teams to be sent to the schooner, but that he knew nothing personally about the delivery of the fish; and that the captain said he thought he might get one dollar a hundred weight for some sold to pedlers and others, but that whatever were delivered to his firm they could have for fifty cents.</p> <p>The plaintiffs also called as a witness H. Staples Potter, of said firm, who testified that he was present in the room at the time Wrightington had his conversation with McKinnon ; that he heard Wrightington make the offer of fifty cents a hundred; that he asked Wrightington in the presence of the captain if he had made the purchase, and he said he had, and told him to tell Mayo, their superintendent, to send for them ; and that he, Potter, then directed Mayo, over the telephone, within hearing of the captain, to send teams to the schooner for the herring.</p> <p>Thereafter the master met the plaintiff Blanchard upon the wharf near the vessel, and employed the plaintiffs to sell said, herring on commission. The captain testified that he said to Blanchard, “ Do the best you can to handle them for me.” He agreed to pay to the plaintiffs ten per cent of the proceeds of the sale, and in consideration thereof the plaintiffs agreed to sell and deliver the herring and guarantee payment for those sold by them, and, after paying the usual charges for wharfage and tow-age and deducting the commission, to remit the balance of the proceeds to Low. It appeared that five per cent was the usual commission charged for selling fish under like circumstances, and that the additional commission was charged on account of the guaranty on the part of the plaintiffs to collect the proceeds of the fish sold by them; that the plaintiffs authorized and instructed Fred Blanchard, one of their employees, to take orders for the fish, to weigh and deliver them, to collect payment at the time of delivery from pedlers and other purchasers whom he did not know to be responsible, but not to require payment at the time of delivery from purchasers of known responsibility, and to use his own judgment as to whom he should sell for cash and to whom he should give credit. It appeared from the testimony of the plaintiff Blanchard, and of McKinnon, that at the time the plaintiffs were employed to sell the cargo nothing was said to them by McKinnon about any previous sale to or conversation with Potter and Wrightington. It also appeared that all the fish were delivered in the following manner. The orders for the same were taken by Fred Blanchard, who then directed the mate of the schooner to pass up some fish; that the fish were then passed in baskets to Fred Blanchard, who weighed them, and delivered them to the purchaser.</p> <p>The drivers of teams belonging to Potter and Wrightington came with the teams to the schooner, and informed Fred Blanchard that they wanted a load of herring; that thereupon Blanchard ordered the mate of the schooner to pass the fish ; that the fish were then passed to Blanchard, who, after weighing them, had them put on to the teams of Potter and Wrightington, and gave to each teamster, when his wagon was full, a memorandum showing the number of pounds of fish in the wagon, written on a printed bill-head of Blanchard and Towle, the latter of whom was Blanchard’s partner. The said Fred Blanchard then charged the fish to Potter and Wrightington on a slate which he had for that purpose, and that slate was afterwards given to the plaintiff Towle, who charged Potter and Wrightington on the books of his firm at the rate of one cent per pound for the fish delivered to their drivers as aforesaid. There were delivered to Potter and Wrightington in the manner aforesaid 73,400 pounds of fish; and one cent a pound was the market price of said herring, and a reasonable and fair price for the same.</p> <p>It did not appear that the master was on board the vessel or anywhere about the place when the fish were delivered, or that he gave any orders to anybody about the delivery thereof, except that he told the mate to deliver the fish to the plaintiffs or their order, and there was no evidence of a delivery to Potter and Wrightington except in the manner aforesaid. It also appeared that, after all the fish were delivered, the plaintiffs settled with Low on the basis of one cent per pound for all fish delivered by them, after deducting a commission of ten per cent and paying wharfage and towage charges advanced by them.</p> <p>It appeared that, some days after the settlement, the plaintiff's sent to Potter and Wrightington a bill for $734 for 73,400 pounds of fish, claimed by them to have been sold by the plaintiffs to said Potter and Wrightington; that Wrightington, of the firm of Potter and Wrightington, told the plaintiff Blanchard that he would not pay the bill because he had purchased the fish from the master of the schooner at half a cent per pound. It further appeared that at the time the fish were put upon Potter and Wrightington’s teams nothing was said about the price thereof, or that they had purchased them of the master, and that the plaintiffs supposed that they were selling to Potter and Wrightington at the market price.</p> <p>The defendant asked the judge to rule that, upon the evidence, the plaintiffs were not entitled to recover. The judge refused so to rule, and found as a fact that a complete sale of the fish received by Potter and Wrightington was made by the captain to Potter and Wrightington, and found for the plaintiffs; and the defendant alleged exceptions. .</p>

<p>Personal Injuries — Assault by Street Railway Conductor — Scope of Employment.</p> <p>A street railway company is not liable for an assault committed by one of its conductors while not acting within the scope of his employment by the company.</p>

<p>Savings Bank charged as Trustee—Bond — Discretion of Justice — Rule as to Deposits.</p> <p>The statutes do not make the liability of a savings bank to be charged as trustee depend upon the plaintiff’s complying with the rules of the bank, which were intended to regulate the conduct of a depositor in his relations with the bank; and it is unnecessary to determine whether it is within the power of the Superior Court to order the plaintiff to give a bond of indemnity to the trustee before entering judgment charging the trustee.</p>

<p>Contract of Charter— Owner of Vessel pro hac vice — Agency.</p> <p>The owner of a vessel is not liable for bait furnished to the master while sailing under a written agreement by him and the crew, whereby they chartered the whole of the vessel for a stated period, and agreed to furnish all necessary fishing gear, including bait, etc., at their own expense, and to pay the owner a certain proportion of the fish which might be caught in the prosecution of the enterprise; and the right of the owner to terminate the charter at any time does not take the case out of the general rule until the right is exercised.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. Trial in the Superior Court before Hopkins, J., who, upon the plaintiff’s offer of proof, ruled that he was not entitled to recover and directed a verdict for the defendant ; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Action by Holder of Bond, — Burden of Proof—Statute — Negotiable Security.</p> <p>In an action to recover interest on the bond of a corporation by the holder thereof, which bond contains an absolute promise to pay interest on certain specified days, the burden of proof is not on the plaintiff to show that income has been earned; and while a provision that “ interest shall be cumulative, and if any of the payments cannot be made on the dates named all interest due shall be paid as soon thereafter as suflicient money has been earned to enable the company to do, so,” may afford a defence to the company, if it can show that income has not been earned, it cannot be regarded as constituting the earning of income a condition precedent to the maintaining of an action, or as imposing the burden of proof upon the holder of the bond.</p> <p>A bond of a corporation, which declares that the corporation is indebted to the bearer in a certain sum which it promises “ to pay to the bearer hereof, or, if it be registered, to the registered holder thereof,” at a certain time and place, “ with interest thereon at the rate of five per cent per annum,” and which contains nothing on its face to show to whom it was originally issued, is a negotiable bond, and the holder thereof may maintain an action in his own name to recover the interest thereon which is due.</p>

Trial in the Superior Court, without a jury, before Mason, C. J., who reported the case for the determination of this court, in substance as follows. On May 15,1893, William W. Winkley and Edwin D. Dresser were, and for some years had been, manufacturers and dealers in stationery, as equal partners, under the firm name of Winkley, Dresser, and Company.

<p>Assault—Rule of Railroad Company — Evidence—Instructions.</p> <p>While, in an action to recover damages for an assault in being ejected from the train of a railroad company, the defendant should be permitted to introduce in evidence one of its rules as to the manner in which passengers should conduct themselves to support its contention that the conductor was justified in ejecting the plaintiff, yet it cannot be said that the defendant is harmed by its exclusion if the rule of law given by the judge to the jury for their guidance was more specific than the rule of the company, but was the same in substance.</p>

Contract, to recover back a tax paid under protest. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows. The plaintiff was the wife of Arthur J. Wellington, and was an inhabitant of the town of Belmont on May 1, 1892.

<p> Jurisdiction of Inferior Court to enforce Mechanic's Lien. </p> <p>A proceeding to enforce a mechanic’s lien in an inferior court must he brought in that court within whose judicial district the land lies.</p>

<p> When Mechanic’s Lien not enforceable. </p> <p>The statutes do not authorize the holier of a mechanic’s lien, at his own option, to establish and enforce it upon a part only of the land subject to the lien.</p>

<p>Writ of Prohibition — Poor Debtor — Postponement of Examination — Presence of Citation at Hearing — Departure without Leave.</p> <p>The magistrate, in pursuance of a previous request of the creditor’s counsel, has a right to postpone the examination of a poor debtor. '</p> <p>The presence of the citation at a poor debtor hearing is not necessary, if the debtor has been ordered to appear and is in court,’and his counsel has entered a general appearance.</p> <p>A debtor departs without leave and without justification if no fact appears in the record of the court or outside of it to justify the departure.</p>

Indictment in eight counts. The first, third, fifth, and seventh counts charged the forging of certain orders; and the second, fourth, sixth, and eighth counts charged the uttering of the same. Trial in the Superior Court, before Mason, C. J., who allowed a bill of exceptions, in substance as follows.

<p>Writ of Prohibition — Discharge in Insolvency — Action — Pleading — Judgment — Execution.</p> <p>Where, after B. has received his discharge in insolvency, A. brings an action against him on a claim which was provable against B.’s insolvent estate, but which A. did not prove against it, the failure of B. to appear and plead his discharge in insolvency under Pub. Sts. c. 167, § 83, is not a waiver of his rights, but after execution has issued the discharge may be set up as a bar to an application for a certificate authorizing the arrest of B.</p>

<p>Intoxicating Liauors — Jurisdiction — Sale and Delivery.</p> <p>On the trial of an indictment for exposing and keeping for sale intoxicating liquors in a town in the neighborhood of Boston, A., a licensed dealer in intoxicating liquor in Boston and the owner of an express run by him between Boston and the town, and B. and C., who were his servants in running the express and were paid by him to deliver liquors in the town, may be properly convicted if there was evidence on which the jury might find that the liquors were not delivered until they reached in the town the hands of those ordering them, and that until then they were at the risk of the defendant A.</p>

<p> Indictment not specifying the Parts of a Booh relied on as Obscene. </p> <p>An indictment under St. 1890, c. 70, charging the defendant with selling a book containing, among other things, obscene language, must be quashed if it does not specify with reasonable certainty the parts of the book relied on as obscene.</p>

Contract, for the value of the materials and labor employed, in taking down certain stables and sheds, and in erecting the same. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon agreed facts, in substance as follows.

<p>Tort, for personal injuries occasioned to the plaintiff by the falling upon him of a door while he was at work in a freight car in the defendant’s employ. The declaration contained two counts, one at common law, and the other under the employers’ liability act, St. 1887, c. 270, § 1, cl. 1.</p> <p>Trial in the Superior Court, before Hammond, J., who ruled that the evidence was insufficient to warrant a verdict for the plaintiff, and directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract, by the administratrix of the estate of Fred L. Keene, upon a policy of insurance against accident, issued by the defendant to the intestate, who was killed while crossing the tracks of the Old Colony Railroad Company at Brockton, on June 4, 1891. At the trial in the Superior Court, before Hopkins, J., it appeared that, by the policy which insured the plaintiff’s intestate against bodily injuries from “ external, violent, and accidental means,” the defendant agreed to pay $5,000 to the beneficiary, who was the insured’s wife, and is the plaintiff, if death should result to the insured from injuries alone; that it provided that no claim should be valid when the death or injury may have happened in consequence “ of any voluntary exposure to unnecessary danger, hazard, or perilous adventure ”; and that it contained a condition that for injuries received while “ walking or being on the road-bed or bridge of any railway, the certificate holder or his beneficiary shall be entitled only to the indemnity or death loss provided in the classification of this association for railway employees insured to cover such risks.” The policy also contained the following provision : “ In the event of a certificate holder being either fatally or otherwise disabled, in consequence of his engaging temporarily or otherwise in any act or occupation of a more hazardous classification than is indicated by the occupation stated in his application, according to the manual in use by this association at the time of injury, or if not specially mentioned in said manual, approximating thereunto, this certificate shall not be wholly forfeited or voided, but the beneficiary or certificate-holder shall be entitled only to the benefit or indemnity provided in said manual for such more hazardous occupation.”</p> <p>There was evidence tending to show that the intestate was employed in Boston as a salesman in a leather house, and on the morning of June 4, 1891, went to Brockton by cars, arriving about 9 A. M.; that he left the cars on the side nearest the station, and, as it was raining, opened his umbrella, passed in front of the engine attached to the train, to the platform No. 2 on the plan which was in evidence; and that, as he stepped from the platform upon the railroad track to the east, in order to cross the track to the street known as Railroad Avenue, upon the east of the railroad tracks, he was struck by the first of two freight cars which had been kicked from the rear of a train consisting of an engine and several freight cars, which had pulled out to the south from the station at the time of the arrival of the passenger train, and which, at the time the plaintiff was struck by the detached cars, was standing still upon the track, at some distance south. The detached cars were in charge of a brakeman who was on the top of the car which struck the plaintiff’s intestate, and this brakeman called out to the plaintiff’s intestate just before he was struck, but not in time to prevent the accident. One of the plaintiff’s witnesses testified “ that, when he first saw Mr. Keene, he was just stepping from platform No. 2 into the middle of the track next east, and that he was walking northeast obliquely across the track so that the freight car hit his right shoulder first.” At the time of the accident the wind was southeast; the passenger engine was blowing off steam, and the plaintiff’s intestate was about five feet back from the forward trucks of the passenger engine when struck first by the freight cars. He was thrown to the ground, and both cars passed over his body. It appeared in evidence that it was the custom of the railroad company to switch freight cars by passenger trains while standing at the station delivering and receiving passengers. It also appeared that it was customary for persons wishing to cross to Railroad Avenue to cross the tracks of the railroad in front of the station; that many hundred persons passed there daily; and that this custom had prevailed for many years. The plaintiff called many witnesses, who testified to their knowledge that the railroad company had never forbidden, prevented, or obstructed the public from so crossing to Railroad Avenue at this point.</p> <p>When the plaintiff’s intestate was struck by the cars, he was holding his umbrella over his head in the direction from which the rain was coming, which was nearly the same as the direction in which the freight cars were coming.</p> <p>The secretary and general manager of the defendant corporation since its organization in 1884 produced the manual in use by the corporation at the date of the policy declared upon, and testified that the amount of death loss provided in the classification for railway employees insured to cover risks for walking or being on road-beds of railroads was under classification D, Inspector of Roadways, or Supervisor, and was in amount $1,500 for death benefit upon a $5,000 policy, and that $1,500 was the highest sum.</p> <p>The defendant asked fourteen requests for rulings, not material to be considered, all of which the judge declined to give except two. The fourteenth request was as follows: “ Mr. Keene was ‘ walking or being ’ upon the road-bed when he met his death, within the terms and conditions of the policy.”</p> <p>The judge, among other instructions to the jury, gave the following : “ There does not seem to be much dispute as to the way and manner in which he came to his death. The place where he received his injury was upon the road-bed of the railway at that point. It is of importance for you to determine, with reference to the place, whether or not he was rightfully there, or whether or not he was there as a trespasser, because, if you should find that he had no right where he was killed, certain consequences would flow which are important to the parties to this suit. His line of travel, as indicated by the evidence, was from the platform diagonally across the tracks of the railroad to a place or street called Bail road avenue, upon the other side. The question is, whether or not he had a right to pass over the railroad at that point. If he had the right to pass over it, then the consequences that flow from the finding of that fact are two at least. In the first place he would not then be walking on or being on the road-bed of any railway within the meaning of the policy, and the right of recovery, if any exists in this case, would be $5,000 and interest. If he was a trespasser in crossing as he did, he would be walking or being on the road-bed of a railway within the meaning of the policy, and the right of recovery, if it exists in this case, would be $1,500 and interest. Then, too, if he had a right to cross where he did cross, that would be a circumstance which you would take into consideration in determining whether or not, under the instructions I shall give you, he at that time wilfully exposed himself to unnecessary danger; and perhaps the inference which you would draw, in case you found he had a right to be where he was, would be other and different from what you would find and draw in case you should find he had no lawful right to be where he was at the time he received the injury. . . . For injuries received while walking or being on the road-bed or bridge of any railway, the certificate holder or his beneficiary shall be entitled only to the indemnity or death loss provided in the classification of this association for -railway employees insured to cover such risks. Under that condition of the policy, evidence has been offered that the amount that would be paid for a death loss for railway employees, insured to cover such risks in this case, would be not more than $1,500. The claim on the part of the defendant is that the deceased was killed while walking or being on the road-bed of a railway, and they invoke that condition of the policy in order to diminish the amount which shall be paid, if, under the rules of law, anything is to be paid on account of his death. He may be said to have been rightfully upon the road-bed, and would not be a trespasser, provided the railway company had expressly granted permission to him, or to the public generally, to cross at that point.”</p> <p>The judge also instructed the jury that, if there had been such a universal, uniform, and long continued use by the general public for a crossing of the land where the deceased was killed as to give it the character of a line of travel, and such that it might fairly be inferred to be known to the railroad company, the deceased would be presumed to have known of the fact, and to be where he was rightfully, and not as a trespasser.</p> <p>The judge, in instructing the jury as to what constituted voluntary exposure to unnecessary danger, followed the former decision, reported 161 Mass. 149.</p> <p>The jury returned a verdict for the plaintiff for the full amount of the policy, $5,000, and interest thereon from October 10, 1891; and the defendant alleged exceptions.</p>

<p>Bill in Equity, filed May 12, 1894, for the specific performance of an agreement to open a four-inch gate at the gate-house at the defendant’s dam at Stony Brook, and allow thereafter a quantity of water to pass through from its reservoir above the dam to the plaintiff’s mill sufficient for washing and steam purposes. Hearing before Lathrop, J., who, at the request of the parties, reported the case for the consideration of the full court, in substance as follows.</p> <p>The plaintiff was, on February 27, 1885, the owner of certain real estate situated partly in Waltham and partly in Weston, and delineated upon a plan used at the hearing, and also of a certain estate south of River or South Street, described upon the plan as the dam, paper-mill, and Stony Brook, together with the lots upon which the paper-mill was situated. The estate consisted of land above the dam bordering upon a basin of water created by the dam, which basin was upon said date of about thirty-five acres in extent, and the property in the water and the right and privilege to dam and hold up the same was in the plaintiff. Below the street the plaintiff owned and used the premises as and for a paper-mill, and had the right and estate to use the water for power, for washing, and for other manufacturing purposes.</p> <p>Upon the same date, the city of Cambridge, acting under the authority of St. 1884, c. 256, authorizing it to take the waters of Stony Brook as set forth in § 1 in said chapter, did take, by a paper taking, all the waters of Stony Brook and its tributa' ries, and all the property comprised within certain white exterior lines set forth in the plan above mentioned, for the purpose of laying, constructing, and maintaining aqueducts, water-courses, reservoirs, storage basins, dams, and other works necessary and proper for collecting, storing, and retaining the waters of Stony Brook and the tributaries thereto, and the discharging, taking, and distributing the same to and among the inhabitants of the city of Cambridge.</p> <p>Subsequently, the city actually took from the plaintiff, among other property, the water of the basin, and by means of a high dam, hereinafter mentioned, which it proceeded to erect across the basin at a point a short distance above the dam belonging to Roberts, has since stored and held the water so as to greatly diminish the water rights of Roberts in the premises. The erection of the dam by the city increased the size of the basin above the dam, and the city since the erection of the dam has held the water as against the rights, privileges, and estate of the plaintiff, other than as hereinafter set forth.</p> <p>Within three years from the time that the water was actually withdrawn by the city, the plaintiff applied to the Superior Court for the assessment of damages, as provided by St. 1884, c. 256, § 5, and the Superior Court appointed three disinterested persons as commissioners.</p> <p>During the hearing before the commissioners, it appeared that the petitioner not only suffered a loss to his mill and property because of a great diminution of the water for power, but that he would be put, by the loss of this water, to great expense on account of his need for water for washing and manufacturing purposes at his mill. He had no other means, and could not without great expense acquire other means to provide water for these purposes, and so would be compelled to close his mill, unless some method could be employed to provide for him a quantity of water for that purpose. The method that he had employed up to that time had furnished him not only a large supply of water for these and for purposes of power during the wet season, but also a sufficient amount for the dry season. And it appeared that the taking by the city would, unless some remedy could be afforded, compel him to abandon his mill.</p> <p>The defendant while it was erecting its dam had, so that the plaintiff could have proper water for washing and purposes other than for power, supplied the plaintiff with water from another source than Stony Brook. Upon December 19, 1887, its water board passed the following votes, which were transmitted to the plaintiff as therein provided :</p> <p>“Voted, That, on December 19, 1887, we will open the four-inch gate at the gate-house of our dam at Stony Brook and allow thereafter a quantity of water to pass through from the reservoir above the dam to Roberts Mills, sufficient for washing and steam purposes, to take the place of the water heretofore furnished to him by us for such purposes.</p> <p>“ Voted, That the president be instructed to write to Mr. William Roberts informing him of the action of the board, and furnish him an attested copy of the foregoing votes.”</p> <p>This action of the defendant was put in evidence before the commissioners, with the assent of all the parties concerned, and such votes were deemed and treated by the commissioners as an agreement and act done by the city that would insure to the plaintiff the use of the water for the future for said purposes. In the assessment of damages in the premises the commissioners entirely eliminated the claim that the plaintiff had made concerning the water on account of washing and for steam purposes, and about August 1, 1888, made a report assessing damages to the plaintiff, which were lessened by this elimination.</p> <p>This report, which recited that “ the petitioner is entitled to recover of the city of Cambridge, as damages sustained by the petitioner in his property by the taking of his water and water rights and injury to his real estate, water, and water rights, . . . the sum of twenty-two thousand four hundred and twenty dollars, including in said sum interest from the time of the actual taking ... to the date of this award, to wit,» August 1, 1888,” was accepted by the Superior Court, and the damages were subsequently paid by the defendant.</p> <p>Shortly after said votes were passed, with the knowledge of the commissioners and with the agreement of the plaintiff and. the defendant, the defendant opened- the four-inch gate at the gate-house of its dam, and allowed sufficient water for washing and steam purposes at the plaintiff’s mill, in accordance with said votes. Everything necessary to be done in order that the water could be communicated from the defendant’s dam to the plaintiff’s mill to be used for the purposes designated was done, and the city, through its water board, since the date of the award and up to on or about July 1, 1893, supplied the water, in accordance with the agreement.</p> <p>The plaintiff assented to this arrangement upon the part of the city to supply him with such water, and the award of the commissioners lessening the amount of his damages in the premises upon the promise, as aforesaid, of the defendant to supply him with such water after December 19, 1887.</p> <p>On or about July 1, 1893, the defendant neglected to supply "the plaintiff with water through said gate, although often requested so to do, and in consequence thereof the plaintiff was put to great expense and inconvenience. The defendant refused to fulfil the contract so to supply water to the plaintiff.</p> <p>In his argument before the commissioners, the counsel for the city said: “We have passed a vote whereby we will open those gates every day when the water does not run over the dam, and supply to him a million gallons of water, which he may use for wash and condensing water, if he can do so, every day.” His argument, however in part at least, presented the vote rather as affecting the probabilities of all the water being used than as conferring a right.</p> <p>Chapter 39, § 3, of the city ordinances of 1880, in relation to the “Water Works,” provided: “ The board, so constituted and organized, shall have and exercise all the powers vested in the city council by an act of the Legislature of Massachusetts, approved on the twenty-fifth day of April, A. D. 1865, entitled £ An Act for supplying the city of Cambridge with pure water,’ and by an act of the said Legislature, approved on the first day of May,. A. D. 1875, entitled £ An Act to provide a further supply of water for the city of Cambridge,’ and by any acts in addition to either of said acts, so far as the same can be legally delegated.” An act of the Legislature was approved on the twenty-first day of May, A. D. 1884, entitled “ An Act to provide a further supply of water for the city of Cambridge.”</p> <p>No vote or order of the city council of Cambridge was passed having any relation to the votes of December 19, 1887.</p> <p>If in any aspect of the case the plaintiff was entitled to relief in equity, such order and decree was to be made as to the court might seem just and proper; otherwise, the bill was to be dismissed.</p>

Tort, by the assignee in insolvency of the estate of John E. McDougall, to recover certain property, or the value thereof, alleged to have been mortgaged by the plaintiff’s insolvent to the defendant, in fraud of the insolvent law. Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptions in substance as follows.

<p>Trust Deed — Perpetuity — Gift to Trust Fund — Valid Public Charity — Right of Reverter in Founder of Trust — Effect of Deed on Trust created by previous Deed — Express Trust — “ Nearest Heir ” and “ Eldest Lineal Male Descendant ” — Accumulation for Benefit of a Charity — Bill in Equity.</p> <p>Where a grantor, by the terms .of a trust deed, confers upon the grantees discretion to apply one half of the income either to the accumulation of the fund, one half of the income of which is intended for the benefit of the grantor or his descendants, or to apply it to charitable or pious uses, there is as to one half of the fund a valid charitable trust, subject to an illegal discretion as to accumulation for the benefit of the grantor or his descendants which will be rejected; and as to the other half of the fund, an invalid trust being created, the beneficial interest results to the donor; and other trust deeds not delivered to the grantees until after the delivery to and acceptance by them of the first deed cannot affect the interpretation of the first deed, or make the invalid trust valid.</p> <p>If a grantor makes a gift of a certain sum of money, to be appropriated for the foundation of a trust fund established by him hy deed nearly two years previous thereto for charitable uses, and the gift is formally accepted by the grantees as a “ donation . . . towards a fund for charitable uses,” the gift becomes a part of the fund, and is subject with it to the legal interpretation of this court.</p> <p>A gift to a library, which first mentions a limited and definite class of beneficiaries, but finally provides that the library is to be used by the public generally, creates a valid charitable trust.</p> <p>A deed does not convey or purport to convey any right of reverter remaining in the founder of a trust, if such appears to be the intention from the construction of the language of the deed as a whole.</p> <p>While the effect of a deed cannot alter a charitable trust created by the grantor by another deed executed more than thirty years before, yet if the intention is clear it may operate as a release as to matters of account, prior to its date, and from the obligation voluntarily entered into by the trustees, in their discretion, by a former deed, to expend a certain part of the income of the original fund for the purchase of books for a library; and, released from such obligation, the trustees are free to apply the income to objects of charity, in their discretion, according to the original deed of trust.</p> <p>Where the possession of property is held by a trustee, not by virtue of any personal right or personally asserted right on his part, but is colored by a trust and confidence in virtue of which he received' it, the identity of the cestui que trust is of very little importance, but the relationship is all important; and, so long as the relation of trust exists, it is a case of express trust, no matter who the cestui que trust may prove to be.</p> <p>S. provided by will that the beneficiary income of a trust fund established by him many years before by deed, which income was to be paid over to “ S. or his nearest heir by the name of S. for the time being who shall demand it,” should be, when demanded, “ the sole property of my heirs having the right to receive the same successively, as described in said trusts.” By a later article he gave the residue of his estate in trust, and by another article provided that in the will and wherever else he had used the like terms, “nearest heir” and "eldest lineal male descendant” should mean first his son S., Jr., and his male issue successively, in order of seniority, in infinitum.. Reid, that the deed could not be construed to mean that S., Jr. took an estate for life with remainder over, and that the question was unimportant, as he had received the income during life with the acquiescence of all parties ; that his eldest son, who was living, was not entitled to a life estate before the beneficial interest under the trust failed and became vested in those entitled to it, and that this interest, the trust being void for remoteness, vested in the trustees under the residuary clause, notwithstanding that the testator in this clause excepted from the residue “ any of the trust funds by me created during my life, or the incomes thereof, which are to be disposed of according to the trusts declared concerning the same, without reference to this item.”</p> <p>The limits of an accumulation for the benefit of a charity are subject to the order of a court of equity, and to justify such equitable interference the accumulation should be unreasonable, unnecessary, and to the public injury.</p> <p>On a bill in equity for instructions as to the interpretation of a deed of trust, questions will not be considered if enough does not appear in the bill to enable the court to pass upon them.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the negligence of the defendant in failing properly to brace the sides of a trench in which it had employed the plaintiff to work in the construction of a sewer in one of its streets. The declaration contained one count under the employers’ liability act, St. 1887, c. 270, § 1, cl. 1. At the trial in the Superior Court, before Bishop, J., the jury returned a verdict for the plaintiff, and the defendant alleged exceptions, the nature of which appears in the opinion.</p>

<p>Writ of Entry — Statute — Levy of an Execution by Sale of Land— Constable — Jurisdiction.</p> <p>A constable cannot make a levy of an execution by sale of land where he has no jurisdiction in the towns where Pub. Sts. c. 172, § 29, require notifications to be posted up.</p>

<p>Contract, for money had and received. Trial in the Superior Court, before Sopkins, J., who allowed a bill of exceptions, in substance as follows.</p> <p>In the years 1884, 1885, and 1886 the plaintiff had been in the habit of borrowing money of the defendants and giving his notes therefor, secured by cash in excess of the face of the notes, deposited in boxes in safety vaults in Boston which were taken in the names of the plaintiff and the defendants. In May, 1886, the parties adjusted the accounts between them, and the plaintiff gave a note to each of the defendants, secured by a pledge of the money so deposited in the vaults, which was the money sought to be recovered in this action. In November, 1888, the plaintiff being under arrest on a criminal charge, the defendants procured from him a power of attorney authorizing them to go to the safety vaults without him, and upon so doing the defendants, as the plaintiff contended, took therefrom a large sum of money; but, as the defendants contended, they found there nothing but scraps of paper and other worthless stuff. There was evidence tending to show that the plaintiff never went to the vaults, or examined their contents, except in company with one of the defendants or their agent. For the purpose of showing that, if any money was taken by them from the vaults, they were entitled to take and to retain it as collateral security, the defendants introduced in evidence the notes given in May, 1886, to the admission of which the plaintiff excepted, on the ground that in another action pending between him and the defendant Child the notes had been pleaded in set-off to the plaintiff's claim, and that in the report of the referee to whom the case had been referred the notes had been allowed. Final judgment had not been entered in that action, and the record thereof, which was offered in evidence by the plaintiff, was excluded, subject to his exception.</p> <p>For the purpose of showing that the plaintiff was attempting to and had defrauded him, the defendant Child, subject to the exception of the plaintiff, introduced evidence tending to show that during the time covered by the transactions described above the plaintiff had borrowed money of him secured by a pledge of tin boxes alleged to contain money, but which, when opened, were found to contain nothing of value; that the plaintiff had borrowed other money of him upon the security of • a ticket issued by the Collateral Loan Company, which recited that the company held as security one hundred dollars in bank bills; that upon presentation of the ticket for redemption it was found that the only bill deposited by the plaintiff was a ten dollar bill so folded as to resemble a one hundred dollar bill, upon which the company had loaned him fifty-two dollars.</p> <p>The defendants also offered evidence, subject to the exception of the'plaintiff, tending to show that during the same period of time the plaintiff had borrowed money of the defendant Mrs. Sunbury upon tumblers which appeared to contain gold pieces, but which contained only pasteboard or gilt pieces made to represent gold.</p> <p>The plaintiff, in rebuttal, offered in evidence the record of a criminal case wherein' he was charged with obtaining money from the Collateral Loan Company under false pretences, for the purpose of showing that, upon the trial of that charge, he was acquitted. The evidence was excluded, and the plaintiff excepted.</p> <p>The jury returned a verdict for the defendants ; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in January, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p>Tort, for personal injuries sustained by the plaintiff while in the employ of the defendant. At the trial in the Superior Court, before Sherman, J., there was evidence tending to show that at the time of the accident the plaintiff was engaged in compounding rubber at the defendant’s factory on a machine which consisted of two smooth heated steel cylinders, each about four feet long and fifteen inches in diameter, set in an iron frame horizontally with the floor, heated, and revolving in opposite directions, one at about three times the speed of the other. At each end of the frame, on the side of the machine where the operator worked, and in plain sight, was an iron screw about three inches in diameter, standing out about fifteen inches from the machine, which was used to push the cylinders nearer together, or separate them, as required.</p> <p>The process of compounding rubber consists of placing a quantity of pure rubber on the cylinders, and, as it is caught between them and ground through, of throwing on it chemicals which are to be combined therewith. The rubber is ordinarily placed endwise in the machine, and is steadied with the hand for a moment until it catches, but small pieces are usually thrown in, and the rubber is frequently given a quick irregular motion as the machine grips it, and sometimes is thrown entirely out. When, for any reason, it does not readily catch in the cylinders, an appliance called a “ hoe ” is used for pressing it into the cylinders. When compounding rubber the cylinders are not over one eighth of an inch apart, but when used for grinding it they are sometimes separated a little more, and when the grinding is finished they are restored to their original position, but any change in their adjustment is discretionary with the operator. As the operator stands in front of the machine, he cannot by looking at the cylinders see how far apart they are, and it is dangerous for him to bend over and look down between them. When the machine is in operation, conversation in an ordinary tone is impossible, unless the voice is exceptionally clear.</p> <p>The plaintiff was an Armenian, of ordinary intelligence, who same to this country in 1889. At the time of the accident, which occurred on June 13, 1893, he was forty-two years old. At that time he understood English very imperfectly, and was unfamiliar with machinery. On Monday, the day before the accident, he was put to work on a compound mill, and an experienced workman, one Healy, was instructed by the foreman to look out for him. For a few days previous to the accident, the plaintiff had been employed in wheeling material from the compound room to the compound mills, during which time he had constantly passed by the compound mills, but he had paid no attention to them, nor to the manner in which they were operated.</p> <p>The plaintiff testified that, on the day before the accident, the foreman took him to the machine where he was injured, and said something to the man in charge of the next machine which the plaintiff did not understand; that .this man, Healy, showed him once with his hands and by signs and motions how to work, after which he, the plaintiff, did it once; that Healy stood by him five or ten minutes going through the operation, and that then he did it himself under the direction of Healy, and the latter went back to his own machine near by, and that he worked on the machine the rest of the day, Healy occasionally showing by signs and sometimes saying, “ Hurry up,” as well as some other things which the plaintiff did not understand ; that sometimes he could not get the rubber off the cylinders, and Healy would come over and cut it off for him ; that during the time he worked on the machine he saw Healy do nothing to his own machine, and no one showed him the screw on the machine for adjusting the cylinders, nor did he see the screws or know their use; that he did not know how far apart the cylinders were or that their position could be changed; and that he worked on his machine the same way all the time until he was injured. The plaintiff further testified, that on the day of the accident he came back from his dinner four or five minutes late, and Healy, with an oath, told him to “ hurry up ” ; that he hurried, took off his coat, and hastened to his work; that he took two pieces of rubber, put them between' the cylinders, and they fell down ; that he turned and looked toward Healy, who laughed; that theretofore he had used other pieces of rubber of the same size, which had never fallen through or gone through so quickly; that these pieces of rubber did not cling to the cylinders as others had done in the morning, but went through quickly and fell into the tray under the cylinders; that Healy said nothing, and made no motion for him to stop; that he put them in again side by side, and tried to hold them pressed together with his hands, but did not press down on them ; that he did just the same as he had done before, and as he had seen Healy do; and that as he put the pieces on the cylinders the second time they again fell through quickly, and his hands and arms were drawn into the machine and injured. On cross-examination he admitted that when he went to work upon the machine he knew that, if he put his fingers between the cylinders, they would be cut or broken; and that he did not understand why the rubber fell through the first time, but that he looked to Healy, who laughed.</p> <p>The defendant’s evidence tended to show that on Monday the plaintiff worked on the same machine with Healy, and under his supervision ; that he was instructed fully as to the management of the machine, including the use of the screws, not only by language and motions, but by the guiding of his hands; and that he was frequently warned by Healy and others, by words and motions, such as pulling away his hands from near the centre of the machine when they were carried there in his efforts to cut the rubber off the cylinder, and there was evidence that he understood the language used. Another Armenian employed in the factory testified, without contradiction, that he told the plaintiff that the machine was dangerous, and that he must be very careful. The defendant’s evidence further tended to show that, after the first few trials, the plaintiff, on Monday and up to the time of the accident on Tuesday, did his work well, and without difficulty, although at times he was reckless, and, when warned, he thought he ought not to be spoken to; that when he began grinding at half past eleven on Tuesday, he opened the cylinders slightly, but soon restored them to their original position, where they remained when he left them at noon ; and that during the noon hour one Boland, in the regular performance of his duty, opened the cylinders for the purpose of oiling the threads of the screw, after which he readjusted them.</p> <p>Boland testified that he oiled the plaintiff’s machine at about one o’clock, and that he told the plaintiff, who did not appear to understand what he said, to keep his hands off the machine, and that he then pulled the plaintiff away from it by the shoulder about two minutes before he was injured, and when the plaintiff was putting two medium-sized pieces of rubber into the machine, and that he then went away, and did not see the accident. On cross-examination he testified that the plaintiff did not speak to him, and that Healy, who was working on the next machine, did not look when the witness pulled the plaintiff away from the machine; that, as he left, he said to Healy, “ It makes me nervous to see a man act like that,” to which Healy made no reply; and that he saw that the plaintiff needed instruction which the witness tried to give him, and that he knew that the plaintiff was under Healy’s charge and direction.</p> <p>Healy testified that he saw the plaintiff from the time he came in at noon on Tuesday until he was injured ; that the plaintiff threw a big lump on, which bit a little and jumped out into the alley ; that the plaintiff threw it in again carelessly, and it jumped out again; that the plaintiff then took a small piece in his hand and made a dart, as if he were vexed “ and wanted to shove it in with terrible force ” ; that the piece jumped up on the box over the small gears, the plaintiff’s left hand went down and he put his right hand after it, and both were caught; that when the piece jumped out the second time the witness put his hand up to the plaintiff to prevent him from going near it until the witness got to him ; that as he jumped for the screw to open the cylinders after the plaintiff was caught he noticed that the screw was about three threads out of adjustment, and he testified that the effect of leaving the cylinders thus wider apart than usual would be that the rubber would go through very quickly, and would indicate to his mind that the cylinders were too far apart; and that he, or any experienced man, or one who had been taught, would at once screw them up.</p> <p>The plaintiff, in rebuttal, testified that he had never seen the “hoe ” used for the purpose of pressing the rubber into the cylinders, or been instructed so to use it, and that, in showing him how to do the work, his teacher had held the rubber with his hands in position to catch between the cylinders. He further testified that neither Boland nor 'any one else had pulled him away from the machine, and that he did not remember having seen Boland previous to the trial. There was no evidence that the plaintiff’s machine was touched by any one during the dinner hour except Boland.</p> <p>At the close of the evidence, the defendant requested the judge to rule that there was no evidence to warrant a verdict for the plaintiff ; but the judge declined so to rule, and submitted the case to the jury, who returned a verdict for the plaintiff, and the judge reserved the case and reported it for the consideration of this court. If the ruling was right, judgment, by consent of the parties, was to be entered on the verdict; otherwise, judgment was to be entered for the defendant.</p> <p>The case was argued at the bar in March, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p>Bill in equity, filed in the Superior Court, for an account under a contract entered into by the parties for the joint operation of their railroads. Hearing before Dewey, J., who reported the case for the determination of this court. The facts material to the points decided appear in the opinion.</p> <p>The case was argued at the bar in March, 1895, and afterwards was submitted on the briefs to all the judges.</p>

<p>Taking of Land and Rights therein by Metropolitan Park Commission — Rights of State as Owner — Effect of Taking on Water Rights—Corporation — Eminent Domain — Statute.</p> <p>The Commonwealth, as owner in fee, after the taking by the Metropolitan Park Commission, under St. 1893, c. 407, § 4, of land and rights in land, including ponds and streams of water within the limits of such land, has the rights which belong to a private owner of land and of ponds and streams on the land.</p> <p>The taking by the Metropolitan Park Commission, under St. 1893, c. 407, § 4, of land and rights in land, including streams of water within the limits of such land, does not take or impair the water rights of those persons who own land not taken, but to or through which the streams of water flow from the land so taken, and such persons have no foundation for a petition for an assessment of damages under § 7.</p> <p>The St. 1818, c. 35, incorporating the proprietors of mills on a river, and authorizing them to make reserves of water in certain great ponds, to erect suitable dams for the purpose of raising the water in the ponds, to lower the outlets of the ponds, and to draw off the waters from the ponds, did not confer upon the corporation the right of eminent domain.</p> <p>A statute incorporated the proprietors of mills on a river, and authorized them to make reserves of water in certain great ponds, to erect suitable dams for the purpose of raising the water in the ponds, to lower the outlets of the ponds, and to draw off the waters from the ponds. Before the corporation had exercised the powers given by the statute as to one of the ponds, the land at the outlet and around the pond, which was never owned by the corporation, was taken by the Metropolitan Park Commission under St. 1893, c. 407, § 4. Held, that the corporation, by the statute creating it, acquired no rights of property in the pond, and could not maintain a petition for an assessment of damages under St. 1893, c. 407, § 7.</p>

<p>Cape Cod Ship Canal Co. —Fund for Benefit of Creditors — Parties to Bill in Equity.</p> <p>The fund deposited by the Cape Cod Ship Canal Company with the Treasurer of the Commonwealth, agreeably to the provisions of St. 1883, c. 259, § 19, which provides that “ the Supreme Judicial Court shall have jurisdiction in equity to apply said deposit to the payment of any damages caused by the laying out, construction, and maintenance of said canal, and for all claims against said company for labor performed or furnished, and for land or materials taken or used in the construction of said canal,” is for the benefit of all persons having claims within the terms of the statute, and, if it is insufficient to pay all in full, it should be divided ratably among them.</p> <p>A bill in equity brought against the Cape Cod Ship Canal Company and the Treasurer of the Commonwealth to have a judgment recovered against the company paid out of the fund deposited with the company, as required by St. 1883, c. 259, § 19, should, as in the case of a creditors’ bill or a suit for the administration of a trust fund, make all persons interested in the fund parties, and, if this is not done, the bill may be treated as brought in behalf of all parties in interest, and an opportunity given them to come in and present their claims.</p>

<p>Contract, upon a policy of insurance on the schooner H. A. De Witt. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows.</p> <p>The defendant issued to the plaintiff its policy, dated June 8, 1890, for “ one thousand dollars on Schooner 6 H. A. De Witt,’ valued at six thousand dollars. At and from the 24th of June, 1890, at noon, until the 24th of June, 1891, at noon. Excluding Gulf of Campeachy.” The words quoted were in writing. Just below appeared in print a prohibition from certain rivers, gulfs, straits, and seas, including the Gulf of Campeachy, the words used being “ prohibited from . . . Gulf of Campeachy.”</p> <p>When the policy was issued, the schooner was at La Guayra, in Venezuela, South America. She sailed from there on June 24, 1890, and, after using various ports not prohibited, she proceeded to a port or ports in the Gulf of Campeachy, and sailed from Alvarado in the Gulf of Campeachy on May 30, 1891. On or about June 14, 1891, in latitude 24° 24' N., longitude 86° 14' W., outside of the Gulf of Campeachy, heavy weather was encountered with squalls, which continued until the 16th, when the vessel was abandoned, and became a total loss by perils of the sea. If the defendant was liable for anything under the policy, it was liable for the total amount thereof; otherwise, judgment was to be entered for the defendant.</p>

<p> Writ of Error to reverse Decree in Equity. </p> <p>A writ of error does not lie to reverse or revise a decree in equity.</p> <p>A bill of review is the customary remedy to reverse a final decree in equity for errors of law apparent on the record, but it is suggested by the court, although not decided, that that remedy is not open where the final decree has been affirmed by the full court, and especially where it has been so affirmed by the consent of all the parties.</p>

<p>Constitutionality of Resolve—Validity of Contract—Employment by State of Agent to prosecute Claim against United States — Statute—Waiver— Obligation of State to perform.</p> <p>It is within the constitutional power of the Legislature to pass a resolve authorizing the Governor and Council “ to employ the agent of the Commonwealth for the prosecution of war claims against the United States to prosecute also the claim of the Commonwealth for a refund of the direct tax paid under act of Congress ” of August 5, 1861, “ also to fix his compensation, which shall be paid out of any amount received therefrom.”</p> <p>A contract made by the Commonwealth, under the authority of a legislative resolve to employ a person who is the agent of the Commonwealth for the prosecution of war claims against the United States to prosecute also the claim of the Commonwealth for a refund of the direct tax paid under an act of Congress, and whose compensation is to be paid out of any amount so collected by him, cannot be declared void as against public policy.</p> <p>The Commonwealth, under the authority of a legislative resolve, employed A., who was the agent of the Commonwealth for the prosecution of war claims against the United States, to prosecute also the claim of the Commonwealth for a refund of the direct tax paid under an act of Congress, and fixed his compensation, which was to be paid out of any amount received therefrom. A. rendered services in procuring the passage of an act of Congress, which appropriated a sum for the refund of the tax, and provided, among other things, that no part of the money so appropriated should be paid out to any agent under any contract for services existing or previously made between any State and agent. A. also rendered further services in preparing the form of a resolve to be passed, in accordance with the requirements of the act, accepting the sum appropriated, and also the form for obtaining payment of the money. The Commonwealth, under a resolve duly passed, accepted the money, and also all trusts imposed by the act. Held, that A., in procuring the passage of the statute and in assenting to the Commonwealth's receiving the money under it, did not waive his claim for compensation; and that the Commonwealth was bound to pay the amount of the compensation agreed upon from any appropriation that might be made for the purpose.</p>

<p>Petition, filed June 2, 1892, for an assessment of damages caused to the petitioner’s mills and mill privileges in Ashland by the taking of the waters of Sudbury River and its tributaries by the respondent city, under the provisions of St. 1872, c. 177. A plan showing the lands and waters in question is printed on the opposite page.</p> <p>Trial in the Superior Court, without a jury, before Bishop, J., who refused to rule, as requested by the respondent, that the petition could not be maintained, and found and assessed damages for the petitioner in the sum of $133,700, as if all the water of the river subject to the restrictions of St. 1872, c. 177, had been actually withdrawn and diverted from the mills of the petitioner. The respondent alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p>Personal Injuries — Master and Servant — Breach of Duty.</p> <p>Where a person is injured by the sudden starting of a machine which he is cleaning, if there is no defect in the machine, and it does not differ from similar machines in use elsewhere, and is in the same condition as it was when he éntered upon his employment, the mere fact that certain contrivances, if on the machine, might have prevented its starting, is not sufficient to show a breach of duty on the part of his employer.</p>

<p>Personal Injuries — Road Commissioners as Public Officers — Liability of Town — Statute.</p> <p>An action of tort was brought against a town for personal injuries occasioned to the plaintiff by the alleged negligence of road commissioners in “ making and repairing” a town way, under Pub. Sts. c. 52, § 3. Held, that the action could not be maintained, as the commissioners acted as public officers, and not as servants of the town.</p>

<p>Devise and Legacy — Revocation— Codicil.</p> <p>A testator gave by will various pecuniary legacies to certain relatives, including three nieces, A., B., and C., to each of whom he gave ten thousand dollars, and then divided the residue among those relatives in proportion to the respective amounts given. By clause second of the codicil he revoked the legacies to A., B., and C., and in place thereof gave each the sum of five thousand dollars, and by clause third of the codicil he gave to three other nieces not named in the will five thousand dollars each. The first clause of the codicil appointed an executor and trustee in place of one deceased, and the fourth ratified the will in all other respects than those named in the codicil. Held, that the change made by the codicil in the legacies to A., B., and C. did not affect their shares under the residuary clause of the will, and that the legacies given by clause third of the codicil to the three other nieces did not entitle them to come in under the residuary clause of the will.</p>

Bill in equity, under Pub. Sts. c. 151, § 2, cl. 11, and St. 1884, c. 285, § 1, to reach and apply, in payment of a debt due from the Great Western Manufacturing Company to the plaintiff, certain of its bonds in the possession of the American Loan and Trust Company.

<p>Two actions OF TORT, for the conversion of certain personal property. The cases were tried together in the Superior Court, before Dewey, J., who reported them for the determination of this court, in substance as follows.</p> <p>The plaintiffs put in evidence the report of an auditor, and rested. The report, which was the same in each case, found the following facts.</p> <p>The plaintiff in the first case was a corporation having its principal place of business in Boston, and dealing in diamonds, watches, and miscellaneous jewelry. In the summer of 1887, one Walter F. Gregg came to the place of business of the plaintiff, and, by means of false and fraudulent representations, succeeded at different times in obtaining a large amount of goods from it. The general method of dealing between the plaintiff and Gregg was to intrust Gregg with diamonds, watches, and other property of the plaintiff, to sell and dispose of on leases or conditional contracts of sale, and to return all such contracts to the plaintiff, which would thereupon pay Gregg a commission on all such leases or contracts so turned in.</p> <p>Gregg, in order to obtain goods from the plaintiff, falsely and fraudulently represented that he had customers who wished to purchase the property he was intrusted with, and, in order to account for the goods, Gregg paid the plaintiff such monthly instalments on the contracts out of his own pocket as he was compelled to do in order to prevent his fraud from being discovered. This course was continued for some three months, until the fraud was discovered by the plaintiff, which thereupon caused the arrest of Gregg on charges of forgery and larceny, to which charges he pleaded guilty and served his sentence.</p> <p>The title to all goods thus taken out by Gregg remained in the plaintiff until the goods were fully paid for, and Gregg, when so intrusted with goods, would pawn them to the best advantage he could for his personal gain, and account for the goods by means of forged and fictitious contracts as above stated.</p> <p>Gregg, at the time of his dealings with the plaintiff, had a small shop on the fourth floor of a building on Bromfield Street in Boston, and a sign upon the door reading “ Oil and Crayon Portraits Co.,’’ and after commencing dealings with the plaintiff he procured a show-case about eight feet long in which he kept some gold plated ware, diamonds, and jewelry, but the defendants never visited the shop or knew of its existence.</p> <p>Gregg received from the plaintiff the goods mentioned in the declaration under the circumstances above recited, which goods he pawned to the defendants, and accounted for the same to the plaintiff by means of forged and fictitious contracts of sale purporting to be signed by third parties, and upon discovery of Gregg’s doings the plaintiff made demand upon the defendants for the goods, which they refused to deliver up, and the plaintiff thereupon brought this action.</p> <p>The defendants offered evidence tending to show the following additional facts. In 1887, Gregg purchased of the plaintiff corporation a diamond ring on a conditional contract of sale, which recited the receipt by him of the ring, and his agreement to pay a certain sum on delivery and the balance of the price in monthly instalments, and that the title to the property should remain in the plaintiff until the full sum had been paid by him to it. He then represented to the plaintiff that he was doing business in a building on Bromfield Street in Boston, such business being the manufacture and sale on conditional contracts of oil and crayon portraits; and that he had a large and reliable number of desirable customers to whom he could sell the property of the plaintiff in the same manner, the title of the property to remain in the plaintiff until paid for.</p> <p>The plaintiff, through its representatives, visited the place of business of Gregg, and was there shown what purported to be a large number of conditional contracts of sale, signed by the customers as before represented, and, after further talk and investigation, the plaintiff entered into an agreement with Gregg substantially as follows: Gregg was to solicit patronage for the plaintiff, and endeavor to make sales for it on conditional contracts of sale, and for the sales made in such manner he was to receive from the plaintiff a sum equal to ten per cent of the face of the contract so made.</p> <p>It appeared in evidence that the plaintiff, in consequence of the supposed successful business conduct of Gregg, trusted hint personally with some two thousand dollars’ worth of merchandise, and charged the same to him in the regular course of business, but that none of the goods alleged to have been converted by the defendants were included in any of these transactions, or had ever been charged to him or purchased by him in any way, but were all delivered to him upon his representation that he had a reliable customer for them, to whom the plaintiff supposed they had been delivered.</p> <p>There was evidence tending to show that the plaintiff intended to retain the title to all goods so intrusted to Gregg until the same were fully paid for; and that Gregg, when he had obtained the goods, would pawn them and account for the same by means of forged contracts.</p> <p>It also appeared in evidence that, when Gregg was intrusted with merchandise to show to a customer whom he pretended to have, Gregg signed a receipt for the same substantially as follows : “ I, the undersigned, have received this day of the H. A. Prentice Company the following articles: [description of the articles]. I promise to return the above named articles on demand.”</p> <p>The facts relating to Gregg’s transactions with the plaintiffs in the second case, who were copartners under the name of J. M. Davis and Company doing business in Boston, were the same as with the plaintiff in the first case, the evidence tending to show that the goods were received and disposed of in the same manner.</p> <p>The defendants asked the judge to rule that, if the jury found that Gregg was intrusted with these goods, either with the power to sell for cash or on conditional contracts of sale, as the agent of the plaintiffs, the defendants were protected by Pub. Sts. c. 71, relating to agents, consignees, and factors, regardless of the fact that Gregg obtained the merchandise by means of forgeries and false and fraudulent representations.</p> <p>The judge declined so to rule, and instructed the jury as follows : “ The provision of Pub. Sts. c. 71, relating to agents, consignees, and factors, means that, in order to protect a bona fide pledgee, the goods or merchandise in the hands of an agent must have been intrusted to him to sell and dispose of in the ordinary course of business, as a common law sale.”</p> <p>The jury returned verdicts for the plaintiffs. If the instruction given was correct, judgment was to be ordered on the verdicts ; otherwise, the verdicts were to be set aside and a new trial granted.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ on December 12, 1892, by striking against a gate post maintained by the defendant at the side of its line. The declaration contained four counts, the first and second at common law, the third under St. 1887, c. 270, § 1, cl. 1, and the fourth under cl. 2 of the same statute and section.

<p>Contract, upon a bond of indemnity. The ease was submitted to the Superior Court, and, after a finding and judgment thereon of $1,671.58 for the plaintiffs, to this court, on their appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

Bill in equity, filed January 30,1895, by Mary J. Cushing, Sarah C. Cushing, and Frances B. Cushing, the first two being widows, to compel specific performance of an agreement in writing, dated December 3, 1894, to purchase three undivided fourths of certain real estate. Hearing before Lathrop, J., on the bill, answer, and replication, the facts set forth in the replication being admitted by the defendant, in substance as follows.

Six actions of contract, upon policies of insurance against loss by fire on the buildings and machinery of the King Brick Manufacturing Company, situated at Columbia Falls, in the State of Maine. The cases were heard in the Superior Court, on an agreed statement of facts, by Hammond, J., who found for the plaintiff in each case, and made certain rulings of law, to which the defendants alleged exceptions. The material facts appear in the opinion.

Tort, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by being scalded with steam and hot water from a locomotive engine.

<p>Life Insurance — Party to sue — Action — Demand of Payment— Satisfactory Proof of Death — Statement of Occupation of Insured — Amendment — Judgment.</p> <p>An action upon a policy of life insurance issued before the passage of St. 1894, c. 225, should be brought by the administrator of the estate of the insured, and not by tlie beneficiary.</p> <p>If the promise in a policy of life insurance is to pay the sum named therein at the office of the insurance company in a certain city within ninety days after satisfactory proof of the death of the insured, a right of action accrues at the expiration of ninety days after such satisfactory proof is furnished, without any formal demand of payment.</p> <p>It is no bar to an action on a promise to pay money that the promisee was not present at the time and place appointed for payment; but it is for the promisor to show in defence that he was ready to pay, and he must make a tender accompanied by a profert in curia.</p> <p>In an action upon a policy of life insurance, by the terms of which the insurance company promised to pay the sum named therein “ at its office in the city of B. . . . ninety days after satisfactory proof, at its said office, of the death of the said insured,” it appeared that the proof of death was made out on blanks furnished by the company, was taken to the office of the company in another city, and there received by a person apparently in charge of the office, who promised to forward it to B.; and it was produced at the trial by the defendant’s counsel. It was admitted that the proof was regularly and properly made out; and no evidence was produced by the defendant to show that it was not received at B. Held, that the jury were warranted in finding that the proof of death had been furnished in accordance with the requirements of the policy.</p> <p>To the question in an application for life insurance, which required the applicant to state his “ occupation or employment,” the answer was, “ Waiter.” In an action upon the policy subsequently issued, the evidence was that the insured had been a calker, but at the time the application was made he was a waiter in a restaurant. In the proof of death signed by the beneficiary, who was the wife of the insured, she stated that he was employed as a waiter, and was also doing jobbing in calking for different persons, and that he was a calker and waiter; and she testified that, although his trade was that of a calker, he did not do any calking at the time of the policy or afterwards, though he tried to get some jobs at calking. Held, that the judge rightly refused to rule that the plaintiff could not recover, because the answer of the insured was not full, complete, and true; and that it was for the jury, upon the evidence, to say what the applicant’s occupation was at the time the answer was made.</p> <p>It is within the power of the Superior Court, after a verdict for the plaintiff in an action upon a policy of life insurance, and after the defendant’s exceptions on the merits have been overruled by this court, to allow an amendment of the writ substituting for the beneficiary’s name as plaintiff the name of the administrator of the insured’s estate, as nominal plaintiff, for her benefit, and, although the defendant’s exception to the refusal to rule that the action could only be maintained by the administrator has been sustained, it is unnecessary that the case should be tried again, but, if such an amendment is allowed, judgment may be entered on the verdict.</p>

<p>Betterment— " Order laying out ” Way — Statute—Constitutional Lazo — Board of Public Works for New Bedford—Validity of Assessment — Description of Estate assessed—Error in Name of Owner— Unceztainty.</p> <p>The board of public works of a city, established by a statute which vested in the board sole jurisdiction of the laying out and altering of streets or ways, passed an order reciting that, in the opinion of the board, common convenience and necessity required that P. Street should be widened for a certain distance, and directing that notice be given to the abutters, naming them, of the intention of the board to lay out P. Street by taking a portion of their land and laying it out as a public street, and that the board intended to assess a portion of the expense on the estates benefited, and would be on the line of the proposed lay-out at a certain time to view it, and to hear any objections to the lay-out or assessment. Three weeks later the board passed another order, which, after repeating that common convenience and necessity required the widening of P. Street, and reciting that due notice had been given of the intention of the board to take for that purpose certain parcels of land described, adjudged that these parcels were taken and laid out as a part of P. Street, and assessed the damages therefor. Held, that the two orders should be taken together, and constituted “ the order laying out” the street, within Pub. Sts. c. 49, § 93; and that, thus construed, it clearly appeared that the order expressly declared that the way was laid out under the provision of law authorizing the assessment of betterments.</p> <p>If a petition for a writ of certiorari to quash a betterment assessment for the widening of a street alleges that the widening was not completed when the assessment was made, and the reservation of the case for the full court contains the stipulation that the facts alleged in the petition and answer are to be taken as true, and a copy of the assessment order annexed to the petition and forming a part of it recites that the work of widening had been completed, it cannot be said that it appears that such widening had not been completed.</p> <p>It is within the constitutional power of the board of public works for New Bedford, established by St. 1889, c. 167, to make a betterment assessment.</p> <p>An order adopted by the board of public works of a city recited that common convenience and necessity required that P. Street should be widened on the east side for a certain distance, and for that purposé it was necessary to take certain parcels of land, among others, " belonging to the C. estate, viz. the heirs of B. and W. C.,” and awarded damages to the “ C. estate.” A subsequent order of the board assessing betterments for the widening of P. Street included among others, the “0. estate, land on the east side of P. Street.” Held, that there was not such indefiniteness in the description of the estate as would invalidate the assessment.</p> <p>A mistake in the middle initial of a name, or giving it a middle initial when it has none, in describing the person whose estate is assessed for a betterment, is not such an error as will defeat the assessment, it not appearing that there is more than one person of the same first and last name who owns land on the street for the widening of which the assessment is laid.</p> <p>It is the estate which is benefited that is to be assessed for a betterment, and, if that is correctly designated in the order laying the assessment, justice does not require that the assessment should be quashed because the name of a former owner has been used in describing the estate, instead of the name of the present owner, when it does not appear that any one has been or will be misled or prejudiced by the error, if it is one.</p> <p>Assessments to A., B., C., and others on two tracts of land, each of which belongs to several owners some of whom own in both, will not be invalid if it appears from the order in which the estates are assessed, to which estate the respective assessments apply.</p>

<p>Two actions OP CONTRACT, upon three promissory notes. In the Superior Court the actions were tried together, before Sheldon, J., who allowed a bill of exceptions, in' substance as follows.</p> <p>The first action was on two promissory notes signed by the defendant, each dated October 24, 1892, and payable thirty days after date to the order of the plaintiff, the first being for $550, and the second for $350. The second action was on the following promissory note signed by the defendant:</p> <p>“ $900.00. Boston, Oct. 24, 1892. Thirty days after date, for value received, I promise to pay to D. S. Burnham, or order, nine hundred dollars, and interest at the rate of six per centum per annum for such further time as said principal sum or any part shall remain unpaid, I having deposited with this obligatiOn, as collateral security, five hundred shares of the capital stock of the Boston Woven Cordage Company, with authority to sell the same without notice, either at public or private sale or otherwise, at the option of the holder or holders hereof, on the non-performance of this promise, he or they giving me credit for any balance of the net proceeds of such sale remaining after paying all sums due from me to the said holder or holders, or to his or their orders. And it is further agreed, that the holder or "holders hereof may purchase at said sale.”</p> <p>The following paper signed by the plaintiff was introduced in evidence:</p> <p>“Boston, Oct. 24, 1892. Received of Harold W. Windram his two notes, this day, payable in thirty days, one for $350.00 and one for $550.00, and, as collateral security for payment of same, his note for $900.00, on thirty days, with five hundred shares of the capital stock of the Boston Woven Cordage Company, and 1 agree, upon payment of the first two mentioned notes, to deliver to him the last described note and the shares of the Boston Woven Cordage Company.”</p> <p>The plaintiff testified that on the day of their date the notes were delivered to him, with the certificate for five hundred shares of stock of the Boston Woven Cordage Company, and in return therefor, at the same time, he gave to the defendant three hundred and fifty dollars in money, surrendered a note for five hundred and fifty dollars, then overdue, (which note was made by the defendant, and indorsed by one Nutter,) and signed and delivered the paper above mentioned. The plaintiff also testified that nothing had been paid on the note, that he had not been able to sell the stock or any part thereof, although he had offered the same for sale at public auction under the terms of the note upon which the second action was brought, and that he still held the original certificate delivered to him as aforesaid, and that the stock was now worthless.</p> <p>The defendant requested the judge to rule:</p> <p>“ 1. That the notes and the paper should be construed together, and, being so construed, showed that the defendant owed the plaintiff only the amount of the two first notes, with interest from the date of maturity thereof; on payment of which the plaintiff was bound to return the third note, and the shares of stock of the Boston Woven Cordage Company. 2. That upon the foregoing evidence the defendant owed the plaintiff only nine hundred dollars, the amount of the two first notes, with interest from the date of maturity thereof. 3. That, upon the evidence, the jury should find for the plaintiff in the first action for the amount of the two first notes, and interest as aforesaid, and should find a verdict for the defendant in the second action.”</p> <p>The judge declined so to rule, and ruled that the plaintiff, on the evidence, was entitled to a verdict in both actions, and instructed the jury to find a verdict in each action for the amount of the notes declared on therein, and interest, not to exceed the ad damnum of the writ in either case.</p> <p>The jury returned a verdict for the plaintiff in the first action for one thousand dollars, which was the amount of the ad damnum of the writ therein, and a verdict in the second action for one thousand dollars, which was also the amount of the ad damnum of the writ therein; and the defendant alleged exceptions.</p>

<p> Bond to Dissolve Attachment. </p> <p>In an action against A. and B., the property of B. was attached, and he gave a bond with sureties to dissolve the attachment which bound him to pay the judgment which the plaintiff might recover “ in said action.” Afterward, by agreement, “ neither party ” was entered as between the plaintiff and B., and judgment was recovered against A. Held, that the sureties on B.’s bond were liable.</p>

<p>Bill iN equity, filed in the Superior Court on February 15, 1894, by the owner of a mill on Mill River in Taunton, against another mill-owner on the same river, to recover one fifth of the sums paid by the plaintiff for flowage damages caused by the reservoir dam above the mills, and for repairs upon the dam, and also one fifth of the compensation for drawing the water from the reservoir. The case was submitted upon an agreed statement of facts, on which the Superior Court ordered that the bill be dismissed ; and the plaintiff appealed to this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in October, 1894, and after-wards was submitted on the briefs to all the judges.</p>

Tort, for breaking and entering the plaintiff’s close in West Stockbridge and digging up the soil, scattering lumber upon the same, and tearing down and removing stone walls and fences.

<p>Itinerant Vendors—Statute—Revenue Act — Police Power— Tax upon Interstate Commerce.</p> <p>Persons who are a part of a travelling troupe composed of Indians, a comedian, and a physician, which troupe gives entertainments consisting of songs, dances, farces, Indian ceremonies, and lectures, the purpose of which and its entertainments is to advertise certain proprietary medicines, and which hires and occupies for two weeks a public hall in a town, and there offers for sale, and sells, both during the entertainments, which are in the evenings, and during the daytime, bottles of the medicines to such parties as call for them, may be found to be itinerant vendors within St. 1890, c. 448, § 1.</p> <p>The St. 1890, c. 448, as to itinerant vendors, as amended by St. 1894, c. 695, is not a revenue act, but a statute passed under the police power of the Commonwealth, and does not impose a tax upon interstate commerce.</p>

<p>Contract, to recover $3,000 for loss of freight of the brigantine Peeress, alleged to have been insured by the defendant under an agreement, the material part of which was as follows: “ About $3,000 insurance is wanted by Scammell Bros., for account of whom, etc. loss, if any, payable to them or order for $ on chartered freight per Brigt ‘ Peeress ’ valued at $ amount of charter at and from Santa Fé to a port in the U. K. or on the Continent. Priv. of port of call for orders. Premium, open for particulars.” Before the signature of each party’s agent appeared the word “ binding ”; and at the bottom were the words, “ Send policy to Walker & Hughes, 63 Wall Street, New York.” Trial in the Superior Court, before Dunbar, J., who, upon the defendant’s motion, at the close of the plaintiffs’ evidence, directed the jury to return a verdict for the defendant; and reported the case for the determination of this court. If the ruling was correct, judgment was to be entered upon the verdict; otherwise, the case was to stand for trial. The facts appear in the opinion.</p> <p>The case was argued at the bar in January, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p>Bill in equity, filed February 3,1894, and amended October 23, 1894, by the beneficiary in a certificate of membership issued by the Massachusetts Benefit Association to Moses H. Schwarzenberg, on May 5, 1855, against the first named defendant as executrix of the will of- Schwarzenberg, her husband, and in her own right, and against the association. After the former decision, reported 162 Mass. 98, the case was heard by BarJcer, J., and, at the request of the parties, reported for the consideration of the full court; such decree to be entered as justice and equity may require. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p>Petition for an assessment of damages occasioned to the petitioner’s property in Chelsea by the laying out and constructing of a sewer by. the Metropolitan Sewerage Commissioners, under Sts. 1889, c. 439, and 1890, c. 270. The case was submitted to the Superior Court, and, after judgment for the petitioner, to this court on appeal, upon agreed facts, in substance as follows.</p> <p>The commissioners, on August 17, 1891, filed in the registry of deeds a description setting forth that they had taken “the right to carry and conduct under the following described lands, and therein to construct, operate, and forever maintain an underground main sewer, ... to wit, that part of Second Street in Chelsea,” describing it.</p> <p>The petitioner was a duly organized and existing corporation, and on or about July 10,1891, it became the owner of certain property on Auburn, Spruce, Arlington, and Williams Streets, in Chelsea, for the purpose of operating a laundry which was situated thereon.</p> <p>On a vacant lot of the petitioner’s land, separated from the laundry buildings by a public street called Spruce Street, was a pond of water, fed by springs from undisclosed underground sources. This pond had been used in connection with the laundry buildings, for laundry purposes, by the petitioner and its predecessors in title for a period of over forty years, and had never failed to furnish a sufficient supply of water for the laundry during the last twenty-five years, except when the city of Chelsea, some years previously, constructed a sewer in Spruce Street, which temporarily dried it up. This pond was considered by the petitioner, when purchasing, to be a valuable part of the property.</p> <p>The petitioner, after purchasing the premises, made large repairs, and commenced a laundry business, for which such a water supply was very important.</p> <p>On or about October 15, 1891, the pond, which the petitioner was using in the daily prosecution of its business, suddenly became dry, and the supply was entirely cut off, by reason of the work of the employees of persons who had contracted with the Metropolitan Sewerage Commissioners in constructing and laying a sewer under and by virtue of the above named statutes. The petitioner’s business was interrupted, and it was put to large expense in providing a fresh supply of water, by driven wells and otherwise.</p> <p>The parties did not agree as to the amount of the damage to the petitioner, whose contention was that the peculiar quality of the water made it indispensable; while the respondent contended that the city water, with which the building was connected, was equally desirable and available for laundry purposes.</p> <p>After the work upon the sewer in that vicinity was finished, the supply returned again, and filled the petitioner’s pond. The drying up of the pond and the cutting off of the water therefrom was not due to any negligent conduct of the work by the Metropolitan Sewerage Commissioners, or by their agents, contractors, or employees, but was a necessary consequence of the construction of the sewer, which lowered the water in many wells in the vicinity.</p> <p>Second Street, through which the sewer was laid, was long before the petitioner purchased its laundry, and has ever since remained, a public highway of the city of Chelsea, and it was the laying of the sewer in that street, and the pumping necessary to keep the sewer trench free from water while the digging was going on for some months after October 15, 1891, which cut off the underground supply from the pond and caused it to become dry.</p> <p>The land upon which the pond is situated does not abut upon Second Street, nor upon any land or highway through which the sewer was laid, and the portion of the petitioner’s land nearest to the sewer is upon Auburn Street, which is parallel with and at least two hundred and sixty-five feet distant from Second Street, or any other point of the sewer ; and other land, owned by private individuals, is situated between the petitioner’s land and the sewer.</p> <p>If, upon the above facts, the petitioner was entitled to recover, judgment was to be entered for it in the sum of $3,000, with interest from October 15, 1891; otherwise, judgment was to be entered for the respondent.</p> <p>The case was argued at the bar in March, 1895, and after-wards was submitted on the briefs to all the judges. ■</p>

<p>Petition, under Sts. 1890, c. 428, § 5, and 1891, c. 123, § 1, for an assessment of damages caused to the property of the petitioners by the abolition of the grade crossing of Everett Street by the tracks of the Boston and Albany Railroad Company in that part of Boston called Allston. Trial in the Superior Court, before Hopkins, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The petitioners offered in evidence the report of the commissioners appointed to act upon the petition of the directors of the railroad corporation for alterations in the crossing. It appeared that the report had been duly confirmed by the Superior Court.</p> <p>The petitioners also offered evidence tending to prove that at the date of the commissioners’ report they bad been for several years, and still were, owners of the premises set out in the petition, which recited that their damages had been assessed at $10,000 by the street commissioners of Boston; that the same were situated on the corner of Everett and Braintree Streets, and consisted of about 140,000 square feet of land, upon which prior to the commissioners’ report the petitioners had erected seventy-one dwelling-houses, all of which were occupied at the time of the report, and that the total rents from the property were then about $34,000 ; that an embankment and bridge, ordered by the commissioners to be built, were erected opposite to the Everett Street front of the petitioners’ premises; that subsequently to the construction of the same, and in consequence thereof, a large part of the petitioners’ houses were vacated, and that they had remained vacant; that the petitioners were obliged to lower their rents, and to accept a different class of tenants; and that the actual diminution in rents received by the petitioners was about one half.</p> <p>The petitioners further offered evidence of persons acquainted with the petitioners’ premises, and with real estate values in that part of the city, to the effect that at the time of the commissioners" report the petitioners’ premises were worth about $300,000 ; and that the market value of the same had been diminished by the work done, as ordered by the commissioners’ report, to the extent of one quarter to one half.</p> <p>The petitioners also offered evidence tending to prove that the erection of this embankment obstructed light and air to the petitioners’ premises, and occasioned dust to be blown into the same, and was on many accounts very objectionable to the tenants of the premises.</p> <p>It was conceded that no land had been taken from the petitioners ; and that no part of Everett Street, as it existed prior to the taking of land under the commissioners’ report, had been changed in grade.</p> <p>Upon this evidence and offer of evidence, the judge ruled that the petition could not be maintained; and directed the jury to return a verdict for the respondent.</p> <p>The case was argued at the bar in January, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p>Petition to the Superior Court, for a jury to assess the damages of the petitioner’s testator, Orray A. Taft, for the taking by the Board of Metropolitan Sewerage Commissioners, in behalf of the Commonwealth, under St. 1889, c. 439, of a triangular parcel of land at Point Shirley, in Winthrop, containing about 12,450 square feet of upland and 9,000 feet of beach, for the purpose, expressed in the instrument of taking, which was recorded on April 30, 1890, of using the same “ for the construction, maintenance, and operation of an underground sewer, or sewers, syphons, gate-chambers, and necessary appurtenances.”</p> <p>After the former decision, reported 158 Mass. 526, (Taft v. Commonwealth,) the case was tried in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>At the time of the taking, the premises to low-water mark were owned by the petitioner’s testator, Orray A. Taft, who died after the first verdict upon this petition, and before the decision in 158 Mass. 526.</p> <p>The plan printed in that case may be referred to for the purpose of showing the triangle taken, the way in controversy, and the hotel and remaining land belonging to the estate of the petitioner’s testator.</p> <p>The petitioner’s testator had owned since 1853, and controlled since 1848, a parcel of land containing about twelve acres, bounded on all sides but one by the salt water, and the extreme end being the northerly shore of Shirley Gut, with Deer Island on the other side. This land was flat and even, with sandy soil, with no trees, fences, or buildings upon it except the buildings used by the petitioner’s testator as a hotel, with its yard, stables, and outbuildings. At the time of the taking there was a way, without fences at the side, which extended from a point on what was conceded by both parties to be Shirley Street, through land of one Hale, formerly of the Revere Copper Company, and thence in a straight line through the land of the petitioner’s testator to his hotel, the corner of which was within about two hundred and twenty-five feet of the high-water mark at Shirley Gut. The judge ruled that the way in question was a public way.*</p> <p>The respondent contended, and offered evidence to show, that the value of the land taken was from $500 to $1,500; and that there was no damage to the remaining land not taken.</p> <p>J. M. Meredith, a witness called by the petitioner, was asked the following question:</p> <p>“ Leaving out of account the buildings, and assuming that there is a public street, 33 feet wide and 1,000 long, through the premises, past the corner of the hotel, what in your judgment was the value of the entire property the 30th of April, 1890, before any taking by the Commonwealth ? ”</p> <p>The respondent objected to this question, upon the ground that the value of the parcel of land on the opposite side of the public street from the triangular parcel taken was incompetent and immaterial, but the objection was overruled, and the witness answered, “ I have always considered that property would have brought $35,000.” The respondent excepted.</p> <p>The testimony of the petitioner’s testator, given at the previous trial, was read by the petitioner; and the respondent excepted to the admission of certain questions and answers as to the rental value of the property, which the witness testified to be $10,000 a year in 1890 and 1891.</p> <p>No evidence of his qualifications as an expert, other than his long ownership and occupation of the property, was introduced.</p> <p>The petitioner read in evidence certain portions of the report of the State board of health to the Legislature of 1889.</p> <p>The petitioner also put in evidence the plan of the North Metropolitan Sewerage System, showing the territory embraced; also a portion of the report of Howard A. Carson, civil engineer, to the State board of health, which was appended to the above mentioned report of the State board of health.</p> <p>The petitioner also read in evidence, from the table of estimates in the report of Carson, the following words: “ Sand sump and overflow, Shirley Gut ”; and to the admission of these words the respondent excepted.</p> <p>The respondent requested the judge to instruct the jury as follows:</p> <p>“ 1. There is no evidence that the construction of an overflow on the land taken is necessary or reasonably probable. 2. There is no evidence that there will be any noise or smoke for which the petitioner may recover damages in this proceeding. 3. The jury are not to consider the possibility of a nuisance resulting from the sewerage works. 4. There is no evidence that any of the purposes for which the land taken may be used will injuriously affect the use of the remaining land for the business of a hotel, as it was used before the taking. 5. The jury should, not include in their verdict any damage to the remaining land on account of the uses to which the land taken may be put. 6. The jury should not consider offensive smells as enhancing damages even if not so offensive as to cause a nuisance. 7. There is no evidence that the uses for which the land was taken are inconsistent with the laying out by the proper authorities of a road or way over the same. 8. The land on the opposite side of the public street cannot be considered as part of the remaining land of the petitioner, for damage to which he can recover in this proceeding. 9. If there is any damage to such land, it is of a kind common to the neighborhood, and not peculiar to the petitioner.”</p> <p>The judge refused to give any of the above instructions, except the third; and instructed the jury, among other things, as follows:</p> <p>“ There has been some controversy here between the parties as to whether it [the property] is to be used for an overflow, as that has been described to you. And it seems that at a time in 1889, before this taking, there had been a scheme which had been prepared by the engineers and reported by the officers of the Commonwealth which contemplated the use of that piece for an overflow. But taking the testimony of the engineer who has had this matter in charge, who has attended to the construction of the sewer, that that plan of constructing an overflow as it was first described has been departed from, and that no overflow has been constructed, and that it is not now the plan of the parties who have it in charge to make any such construction there, to consider any overflow, yet if in the future such an overflow should be needed in the opinion of those who have it in charge at such time, there is the right taken to construct such an overflow. It is not a mere possibility that in the future it may be constructed that you are to consider, because you might concede that anything was possible with reference to it- in the sense that I use that term ; but you are to determine upon the evidence what use is reasonably to be expected with reference to this tract in the future. . . . The difficulty is in a case like this to determine just what elements are to be considered by you in this matter of the depreciation of the value of the remaining land. . .. . What are the elements that ought to be considered? What is the annoyance to that remaining property ? Can it be put into words in any way that you can see what it is, and just what you should consider with reference to it ?</p> <p>“ One suggestion is that the appearance of these structures which are made or which may be made upon this property in the future, as you shall determine that fact, will be unsightly, will be objectionable to people who would otherwise buy property, and they will go away from it on that account. Determine then what is the nature of the structures that are to be there. . . . And of course you ought to try to determine as well as you can from what you saw, and from the testimony which has been introduced here, what will be about the appearance of the property when it is completed upon the plan that it is being constructed with reference to now, and then what change will be made in the appearance there in the future, any future use that you are satisfied will be made of it, reasonable for its purposes. Will there be anything there that will be unsightly, that will be objectionable to people ? If so, determine what that is, and then see if there are any other elements that you can determine which ought to be considered.</p> <p>“ Another suggestion is that there may be odors from the operation of such structures as are there now, or such as may be put there in the future, as will be put there in the future, not amounting to a nuisance, not amounting to anything detrimental to health or to the comfort of persons living in that locality, or to render their habitations unhealthy and uncomfortable, yet may be such that people will so object to them that they will not buy property in that locality. . . . Then, if you are satisfied that an overflow is to be constructed there at some time, what will be the effect of that ? not as creating a nuisance there, because that is not to be considered by you, but in this other way; not amounting to a nuisance, and yet so objectionable that people will not purchase property in that locality.</p> <p>“ Then there is another suggestion: not that an overflow is to be built, not necessarily that any change is to be made in the structures in this locality for the purposes of this work that is to be carried on, but that there does exist the right to make some changes, and that the fear that there will be changes made, people do not know what and do not know when, but that that right existing there will deter people from going to that locality and purchasing property there, and that that dread or fear on the part of people who would otherwise purchase would lead them to go elsewhere and purchase property in another locality rather than to purchase it here; — all of this, you see, affects the demand, and the demand has to do with the value of this remaining property.</p> <p>“ Determine as well as you can just what the fact will be, as to what will be done there, what the effect of the work will be, what is to be feared with reference to that, what view would people take of that. You have had there the opinion of witnesses with reference to it, some saying that in their opinion that would affect it, and others that it would not. In the first place there is the question how far any of these elements are to be considered by you, whether they are any elements, either of them, one or another of them, as I have suggested, that are elements of damage for you to consider with reference to this remaining property. . . .</p> <p>“ If the petitioner sustains other and different damages to his remaining land, by reason of the use to be made of the land taken from him, than he would have sustained if the land had been taken from another and adjoining his, or so near his land, such additional damages, such other and different damages sustained by him by reason of the taking at that place, may be assessed in connection with the value of the land taken there. In other words, it is not to assess the damages resulting to the remaining land from these different elements that occur to all the land in that locality, but it is the difference between some annoyance which is outside the petitioner’s original parcel and the same in its intended place which is the measure of damages; it is the difference between the two, if there is any ; if there are other and additional damages, because of the tract being taken there where it is taken, to the remaining land, it is that increase, that difference, that is to be assessed. You will not assess the damages to the remaining land, or the depreciation in value of the remaining land, resulting to all of the land in that locality whether the property is taken from the petitioner or some one else. And it is upon that theory that you ought to assess the damages and depreciation to this remaining land; adding that, whatever you may find that to be, to the value of the land as you find that to be, the value of the land taken, the triangular piece.”</p> <p>The jury returned a verdict for the petitioner in the sum of $15,262.50, and found specially that the damage to the remaining land of the petitioner not taken was $10,000.</p> <p>The respondent alleged exceptions.</p> <p>The case was argued at the bar in January, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p> Land Damages—Railroad—Division of Tract into Lots. </p> <p>At the trial of a petition for an assessment of damages sustained by the taking, for the purposes of a railroad, of a portion of a large tract of land, if it appears that the other land of the petitioner not taken had been made separate and distinct parcels by transforming the locality into a village with wrought and travelled streets, and making all the land not included in the streets into exactly defined house lots, some of which had been sold to other persons, and each of which then owned by the petitioner was held for separate sale, no special or peculiar damage to his land not taken, except to his lots immediately adjoining the parcels taken or abutting on the same street with the railroad, can be recovered.</p>

<p>Contract, upon a policy of insurance for $1000, issued by the defendant, against loss by fire on the plaintiff’s property in Lynn. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p> <p>The ease was argued at the bar in January, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p>Two actions of tort, for personal injuries occasioned to the plaintiffs respectively, while in the defendant’s employ; the declaration in each case containing counts under the employers’ liability act, St. 1887, c. 270, and also at common law. The cases were tried together in the Superior Court, before Richardson, J., and it appeared that the defendant was engaged in blasting a ledge of rock on his premises by means of dynamite exploded by electricity in deep holes drilled by a steam drill in the top of the ledge, and employed one McDonald as superintendent of the blasting; that one Lyons had charge of the work at the base of the ledge, which consisted of breaking up the large pieces of rock into small stones, either by hand drilling and blasts of powder or by sledge-hammers, loading them on teams, and carting them away ; and that, while the plaintiffs were engaged, by means of a churn drill, in removing the tamping from one of the deep holes, an explosion of dynamite occurred therein, and caused the injuries complained of.</p> <p>The jury returned a verdict for the plaintiff in each case; and the defendant alleged exceptions, which appear in the opinion.</p> <p>The case was argued at the bar in March, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p>Use and Occupation — Action — Defence — Husband and Wife.</p> <p>An action for use and occupation of a tenement does not depend on privity of estate, but on contract, express or implied, between the landlord and tenant, and occupation, actual or constructive, by the latter.</p> <p>In an action against a married woman for use and occupation of a tenement, the fact that she was living there with her husband does not affect her liability, if the jury find that she was occupying as a tenant with his assent under an agreement to pay the rent herself.</p>

<p>Personal Injuries — Defective Way at Grade Crossing — Action — Right of Railroad Corporation to Notice of Injury.</p> <p>A person injured by a defect in a highway, where it is crossed by a railroad at grade, which the railroad corporation is bound, under the Pub. Sts. c. 112, § 124, to keep in repair, cannot maintain an action against the corporation without giving the notice required by the Pub. Sts. c. 52, §§ 19, 21, to be given to the “persons” obliged to keep the same in repair.</p>

<p>Contract, upon a policy of insurance, to recover for loss of the plaintiff’s barn and. shed and personal‘property, destroyed by fire at Conway, Massachusetts, on October 29, 1893. The answer alleged that the fire which caused the loss was set by the plaintiff, and by his procurement and with his consent.</p> <p>Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared in evidence that in April, 1893, the plaintiff’s brother, George R. McDowell, bargained for a farm in Conway, on which was a dwelling-house, the barn which was destroyed by fire, and a mill, and that he also bargained for the personal property. All of the negotiations with the seller were carried on by George R. McDowell, and the consideration therefor was delivered to the seller by said George. The conveyances were made out in the name of the plaintiff, who, it was claimed, furnished the consideration. After the purchase of the property, in April, 1893, the plaintiff and George lived together upon the farm. George R. McDowell testified that he and his brother, the plaintiff, were not partners, but that he helped his brother carry on the farm, helped in the harvesting of the hay which was destroyed by the fire, and helped in repairing the house and mill, and that no compensation had been paid him therefor, and none had been agreed upon, and he did not know as he should recover any, as it was a family matter and he wished to help his brother.</p> <p>The defendant offered to show that on August 2, 1888, at Moores in New York, George and the plaintiff, while in business together, met with a loss by fire, against which they were insured, and that they were paid insurance money thereon; that on September 11, 1891, while associated in business together at the same place, they again met with a loss by fire, against which they were insured, and that they were paid insurance money on that loss. The judge excluded the evidence, and the defendant excepted.</p> <p>The defendant further offered to prove other losses by fire by relatives of the plaintiff, in each of which losses there was insurance and a payment of insurance, namely: April 15, 1886, a loss at said Moores by George R. McDowell; January 27, 1888, a loss at the same place by David Bradford, father in law of George, a loss by the same fire by Anna L. McDowell, wife of George; August 2, 1888, another loss by George at said Moores; May 5, 1891, a loss at the same place by R. J. McDowell, a brother of George; September 11, 1891, at the same place, another loss by George; March 21, 1893, at Boston, losses by a fire in which said George, Carrie L. McDowell, a sister of the plaintiff, Margaret L. McDowell, another sister, Sarah J. Taylor, another sister, and Hiram G. McDowell, a brother, were each insured and recovered insurance money; and September 1, 1893, at Conway, losses by fire in which Hiram D. Griggs, a brother in law of the plaintiff, and George W. Griggs, a nephew of the plaintiff, were each insured, and recovered insurance money.</p> <p>The judge excluded the evidence; and the defendant alleged exceptions.</p>

<p>Indictment for Burning Dwelling-house — Evidence of Ownership.</p> <p>A defendant is rightly convicted of burning a dwelling-house standing on land he-' longing to a woman with whom he is living but to whom he is not married, if there is evidence that the building was the property of the woman.</p>

<p> Allegations in an Indictment for Perjury. </p> <p>If an indictment for perjury clearly alleges that the perjury was committed in the trial of a crime in a certain District Court, before the justice of that court, it is not necessary to allege that the court was then held for criminal business. An allegation in an indictment for perjury that the defendant swore that he did not sign a complaint charging a person with keeping intoxicating liquor for sale without any license therefor, and that the name which was subscribed to it as complainant was not in his handwriting, includes an averment that he denied having signed the complaint as complainant.</p>

<p>Petition to the judge of probate of the county of Worcester, by the trustee under the will of Sophronia W. Fitch, to obtain the instructions of the court as to its construction. From the judge’s decree, which appears in the opinion, Louisa M. Brigham and Harriet L. Wheeler appealed. Hearing before Field, C. J., who reserved the case for the determination of the full court. The material facts appear in the opinion.</p>

Contract, brought for the benefit of the Ware Savings Bank, the plaintiff’s mortgagee, upon a policy of insurance against loss by fire in which the property insured was described as a “ three-story brick building, occupied as pottery, situate in East Brook-field, Mass., known as the Pottery Building.” The case was submitted to the Superior Court, and, after judgment for the defendant to this court, on appeal, upon agreed facts, in substance as follows.

<p>Fire Insurance — Authority of Agent — Permit for Repairs — Increase of Risk — Evidence — Waiver.</p> <p>An agent of an insurance company, to whom the company had intrusted blank policies of the Massachusetts standard form signed by the proper officers, with authority to countersign and issue such policies, and also to grant permits for vacancies and for repairs by attaching written or printed permits to policies and sending copies thereof to the company, has no authority to bind the company by an oral agreement to grant such a permit.</p> <p>If an agent of an insurance company, who has authority to grant permits for vacancies and for repairs by attaching written or printed permits to policies and sending copies thereof to the company, and who, having already granted such a permit for allowing insured premises to remain unoccupied, is told by the insured that he intends to make alterations in the premises and asked if the insurance is all right, and replies, “ When the mechanics begin work we will put on a mechanic’s permit,” this implies that notice shall be given to the agent before the permit will be attached to the policy; and the fact that he, as the agent also of the insured in respect to caring for the property, had the policy in his hands, is immaterial.</p> <p>In an action upon a policy of insurance, the assured cannot contend that, having obtained permission to do one of the things provided against in the policy, he may do another without permission, upon the assumption that it will not change the grade of risk.</p> <p>Evidence of an unaccepted offer of compromise by an agent of an insurance company sent to adjust a loss is inadmissible, in an action upon the policy, for the purpose of showing a waiver of the defence that the risk was increased without the defendant’s assent.</p>

<p>Petition, to enforce a mechanic’s lien, under Pub. Sts. c. 191. Trial in the Superior Court, before Aldrich, J., who overruled the petitioner’s motion to amend, and directed a verdict for the respondent; and the petitioner alleged exceptions, which were allowed by Hopkins, J. The facts appear in the opinion.</p>

Tort for personal injuries occasioned to the plaintiff, on September 19, 1892, by the explosion of gas in the “ Motor Building,” in Lowell.

<p>Petition in equity, under Pub. Sts. c. 27, § 129, filed July 20, 1895, by ten taxable inhabitants of the city of Worcester, to restrain the city council, the mayor, treasurer, and all other officers of the city, from carrying out the orders of the city council as to erecting a city hall upon the “ Old Common,” so called, without leave of the Legislature.</p> <p>Hearing on the pleadings and agreed facts before Allen, J., who entered a decree dismissing the bill, and reported the ease for the determination of the full court. The facts appear in the opinion.</p>

<p>Appeal from a decree of the Probate Court, allowing the first account of James Melanefy, guardian of Margaret M. O’Driscoll, a minor. The case was heard by Barker, J., who affirmed the decree of the Probate Court. The appellant by her next friend appealed therefrom, and the justice at her request reported the case to the full court for its determination upon the following questions.</p> <p>The allowance of item 4 of the account was objected to. This item was a charge for $122.25, paid to the mother of the ward for thirty-five weeks’ board. It appeared that the accountant was, on July 5, 1889, appointed guardian of the ward, who was about twelve years of age; that her only property was an undivided one-sixth interest in some real estate, which was after-wards sold for $2,602.65; that the income of the whole estate belonged for life to one Mary O’Driscoll, who died on May 17, 1889, and that the ward’s estate was a vested remainder after this life estate; that the board was furnished the minor, with the exception of six weeks before the appointment of the guardian, and that the larger portion of the bill accrued before the death of the life tenant; that the payment was made without any order of the Probate Court, or any request from anybody save the mother; that, if the accountant had the right under these circumstances to reimburse the mother, her payment was reasonable in amount, and that the real estate was sold on July 31, 1889, and the bills charged in the account were paid from the proceeds of the sale of the ward’s interest therein.</p> <p>The appellant also objected to the allowance of the following items.</p> <p>Number. Date.</p> <p>7 1889, Oct. 2, Cash, board, and coal, $31.50</p> <p>39 1891, June 6, Wellington, coal, 6.75</p> <p>40 “ July 1, Board and coal, 35.00</p> <p>48 1892, Feb. 1, Coal, 18.75</p> <p>63 1893, Feb., Coal and board, 40.00</p> <p>It appeared that these items, which were paid without any order of the Probate Court, were payments made by the guardian to the mother of the ward, for coal for the kitchen fire, that being the only fire kept by the mother, and no other fire being furnished for the ward. In the opinion of the presiding justice, all the charges for payments by the accountant to the mother were reasonable, when considered together.</p> <p>If the rulings allowing items 4, 7, 39, 40, 48, and 83, or any of them, or any portion of them, were not warranted, the decree of the Probate Court was to be modified, and such of said items as should be disallowed stricken out; otherwise, the account was to stand in its present form, and the case was to be remanded to the Probate Court for further proceedings.</p>

<p>Two actions of tort. The first case was an action to recover for personal injuries to the plaintiff, and for injuries to his property, by a collision with a train on the defendant’s railroad at the crossing at grade of a highway in Northbridge by the railroad. The second case was an action to recover, as administrator of her estate, for the death of the plaintiff’s wife, who was killed by the same accident. The cases were tried together in the Superior Court, before Aldrich, J.</p> <p>The jury returned a verdict for the plaintiff in each case ; and the defendant alleged exceptions, which were allowed by Sherman, J., after the death of Aldrich, J., and which appear in the opinion.</p>

<p>Town — Withdrawal by School Committee of Approval of Attendance of Resident at High School in another Town—Right of Parent of Pupil to Notice of Withdrawal—Action for Tuition — Statute —Damages.</p> <p>The school committee of a town not required by law to maintain a high school may withdraw its approval, given under St. 1891, c. 263, of the attendance of a child residing in that town at the high school in another town, and the child’s parent is entitled to due notice of such withdrawal.</p> <p>A person residing in a town not required by law to maintain a high school, who, having obtained the approval of the school committee of that town, sends his child to the high school in another town, may, after the withdrawal of such approval, the withdrawal not being for misconduct of the child, maintain an action against the former town, under St. 1891, c. 263, to recover the sum paid by him to the latter town for the tuition of the child before he has been notified by the committee of such withdrawal. If the tuition is payable by the term, he is entitled to recover the amount paid for the whole term during which he is notified of the withdrawal; but if the tuition is payable by the day, he is entitled to recover only the sum payable at that rate from the time when the approval is withdrawn to the time when he is notified by the committee of that fact.</p>

<p>Personal Injuries — Railroad — Grade Crossing — Due Care — Negligence — Law and Fact — Trial.</p> <p>There is no absolute rule of law that a traveller approaching the crossing at grade of a highway by a railroad must, under all circumstances, stop to look and listen for a train before entering upon the railroad.</p> <p>The fact that a traveller approaches with a team the crossing at grade of a highway by a railroad at a trot with a heavy load does not of itself render his conduct negligent, it not appearing, in an action by him against the railroad corporation for personal injuries occasioned by being struck by a train, that he could not have stopped if he had had reasonable notice of the coming train.</p> <p>In an action against a railroad corporation for personal injuries occasioned to the plaintiff by being struck by a train at the crossing at grade of a highway by the railroad, it is for the jury to say what was the object of a flag suspended over the railroad track from the gate tower, and whether its presence had or should have had any effect upon the conduct of those in control of the train, or of the gateman.</p> <p>In an action against a railroad corporation for personal injuries, if the plaintiff puts in evidence a rule of the corporation relating to danger signals, and the defendant afterwards puts in a later rule which was in force at the time of the accident, it is competent for the judge to allow the plaintiff to withdraw the rule put in by him, and to direct the evidence relating to it to be stricken out and to be disregarded by the jury.</p>

Tort, for personal injuries occasioned to the plaintiff hy being thrown to a station platform while alighting from the defendant’s train at Port Chester, New York. After the former decision, reported 162 Mass. 326, the case was tried in the Superior Court, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.

<p>Three actions of contract, upon policies of insurance in the standard form, against loss by fire, on January 1, 1894, on certain property in Conway. Trial in the Superior Court, without a jury, before Richardson, J., who found for the plaintiff in each case; and the defendants alleged exceptions, in substance as follows.</p> <p>Each policy contained the regular provision as to submission to arbitration in the case of loss. In none of the cases was there any reference, or any arbitrators appointed, or any step taken by any of the defendants with regard thereto. The only evidence as to any attempt by the plaintiff or in his behalf to secure arbitration was as follows. The plaintiff’s counsel read from a copy-book what purported to be and what he stated to be letter-press copies of letters he had sent to the defendants by mail, in which each of them was requested to appoint arbitrators under the provision for arbitration in the policies issued to the plaintiff, and under which claim was made for payment of loss, and naming as arbitrators three individuals under the Ætna policy, and three others, who were suggested under both the Royal and Phœnix policies. The letter to the .¿Etna company was dated October 9, 1894, and the letters to the Royal and Phoenix companies were each dated December 5, 1894. The defendants admitted that the plaintiff’s counsel would, if testifying, swear that the several letters were sent by mail to the companies therein mentioned on the dates mentioned in the copies postage paid, and the judge so found. The defendants objected to the admission of the copies as evidence of the contents, or as evidence that the defendants had received the letters. The plaintiff’s counsel also read from a copy-book what purported to be press copies of two letters to Mr. W. H. Brooks, who was counsel of record in the cases, but who was not present at the trial, which copies stated that the companies acknowledged receipt of the letters requesting a submission to arbitration, and referred the plaintiff’s counsel to him as their attorney. It was admitted by the defendants that the plaintiff’s counsel would testify that the letters of which these were copies were duly sent, postage prepaid, and the judge so found.</p> <p>The plaintiff’s counsel also read from a copy-book what purported to be a press copy of a letter addressed to Brooks, Hamilton, and Guyott, Holyoke, Massachusetts, who were counsel of record for the defendants, but were not present at the trial, which press copy was as follows : “ Greenfield, Mass., April 13, 1895. Gentlemen, — You are hereby notified to produce at the coming trial of the cases of Brice W. McDowell v. Ætna Ins. Co., Royal Ins. Co., Phœnix Ins. Co., in our Superior Court the present term here, all proofs of loss, written schedules, letters and communications or written memorandum of every kind, received by the above named companies defendant or by you as their attys., each and all of them, received from the said plaintiff or from his attys., at any time since the fire.mentioned in the several declarations in said suits. Very truly, Conant & Conant, Atty’s.”</p> <p>It was admitted that the plaintiff’s counsel would testify that the original was sent postage paid, and the judge found that it was received by Brooks, Hamilton, and Guyott in the regular course of mail. None of the original letters were produced at the trial. The action against the Ætna company Was begun October 29, 1894. The actions against the Royal and Phosnix companies were begun January 9, 1895. The defendants asked the court to rule that the several actions could not be maintained, because there was no sufficient evidence that arbitration as a condition precedent to beginning the actions had been waived by the defendants. The judge declined so to rule; and the defendants alleged exceptions.</p>

<p>Contract, upon a policy of insurance for $150, issued by the defendant on July 11, 1892, upon the life of David W. Hogan, the plaintiff’s intestate. At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the admission of certain evidence, the nature of which appears in the opinion.</p>

<p>Tort, under St. 1886, c. 140, by the administrator of the estate of Robert J. Mullen, for causing his death. At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Personal Injuries— Master and Servant — Employers’ Liability Act — Action.</p> <p>A. was employed by B. under a continuing contract to do from time to time such carpentry as was necessary to be done on the buildings occupied by B. for manufacturing purposes, usually receiving his orders from B.’s superintendent A. furnished the tools and B. the materials required to do the work. A. hired the men to be employed in doing the work, superintended, paid, and discharged them.</p> <p>B. paid A. a certain sum a day for his work, and a further sum a day for each man employed by A. in addition to the amount of wages which A. agreed to pay the men. A. and B. settled the accounts between them monthly, and A. paid his workmen weekly, but their names never appeared on B.’s pay roll.</p> <p>C. , while employed by A. on B.’s premises, was injured by the act of another of A.’s workmen, and brought an action against B. under the employers’ liability act, St. 1887, e. 270. Held, that the relation of employer and employee did not exist between B. and C.; and that the action could not be maintained.</p>

<p>Contract — Construction — Breach — Parties — “ Successor ” — Validity — Restraint of Trade — Lex Loci Contractus — Damages — Penalty.</p> <p>If a contract provides for the use by A. of certain articles to be ordered of B., and, while the contract is in force, B. forms a partnership with C. without A.’s knowledge, articles subsequently ordered by A. and furnished by the partnership must, as between the parties be regarded as furnished by B., acting through the partnership, to A. in pursuance of the contract.</p> <p>A contract recited that “the undersigned, Messrs. A. & B. and Messrs. O. &D..... hereby agree to use all electrotypes ordered from E. . . . only for the purpose of illustrating works to be published by the said A. & B. and the said C. & D., or their heirs or successors in business,” and was signed by the two firms named. The previous correspondence between the parties had informed E. that the two firms were jointly interested in a certain publication, which was an illustrated work in six volumes, of which each firm was to publish at its own expense three volumes; and it was agreed between the two firms that a part of the plates obtained from E. should be used in each of the volumes, that each firm should pay for the plates used in the volumes published by it, and that the plates should be the separate property of the firm which paid for them. E. did not know of this agreement. Held, in an action by E. for breach of the contract, that the contract was a joint agreement by both firms.</p> <p>Two firms executed an agreement to use all electrotypes ordered from a third person only for the purpose of illustrating works to be published by those firms, “ or their heirs or successors in business,” and not to sell the electrotypes to “ any other parties.” Afterwards one of the firms sold all its interest in the work in which the plates were to be used to the other firm, which subsequently dissolved, one of the members continuing to carry on the business. He after-wards sold the whole publication, including the electrotype plates, to A., who had no connection with either firm, and who used the plates only in the publication of the work in question. Held, that A. was not the “successor in business ” of either firm, within the meaning of the agreement; and that the sale to him was a breach of the agreement, for which the damages recoverable were not necessarily nominal.</p> <p>An agreement by the purchaser of electrotypes, to be used only for the purpose of illustrating works to be published by him, “ not to sell these electrotypes to any other parties, nor to multiply them for the purpose of selling them,” is an agreement in restraint of trade, but, in view of the nature of the property, is reasonable, and will be enforced between the parties to it.</p> <p>An agreement, dated and signed in this Commonwealth by A., an inhabitant of the Commonwealth, to use all electrotypes ordered from B. in a foreign country only for the purpose of illustrating works to be published by A. in this country, and sent to B., who cabled to A. his acceptance of it, is to be governed by the law of this Commonwealth in determining the measure of damages in an action for its breach.</p> <p>If an agreement by A. to use all electrotypes ordered from B. only for the purpose of illustrating works to be published by A. provides that he is “ to be responsible for every and all wrong use of said electrotypes to the amount of any damages which may have been caused thereby to” B., “and to pay furthermore a fine to ” B. “ equal to the tenfold price of the wrongly used electrotypes,” the fine is a penalty, which cannot be recovered, but B. is entitled to recover only the amount of damages which have been caused by a breach of the contract.</p>

<p>Contract, for breach of the covenants in a deed from the defendant to the plaintiff of land in Worcester. Writ dated June 12, 1893. Trial in the Superior Court, without a jury, before Hopkins, J., who reported the case for the determination of this court, in substance as follows.</p> <p>On April 1, 1873, Isaac Davis conveyed to the defendant a tract of land described as follows: “A certain lot or parcel of land, with the buildings thereon, situated on the easterly side of Main Street in said city of Worcester, and with the privileges and appurtenances thereto belonging, bounded and described as follows : northerly on land of James Green, one hundred (100) feet; easterly on an open passageway twenty (20) feet wide, sixty-six (66) feet more or less to an open passageway nine (9) feet four (4) inches wide; southerly on said last named passageway one hundred (100) feet, westerly on Main Street sixty-six (66) feet more or less,” and containing the usual covenants.</p> <p>On October 11, 1877, the defendant conveyed to the plaintiff the land in question, the description of which was as follows: “ A certain tract or parcel of land located on the easterly side of Main Street, in said Worcester, bounded and described as follows, to wit: beginning at the southwest corner of the estate hereby conveyed, which is also the southwest corner of the estate conveyed to me by Isaac Davis, by his deed bearing date April 1st, 1873, being recorded in Worcester County Registry of Deeds, book 892, page 519 ; thence northerly by line of said Main Street thirty-five feet, more or less, to a point in the easterly line of said Main Street, which said point would be intersected by a line running parallel to the southerly boundary line described in said Davis’ deed, above referred to, and distant northerly sufficient to pass through a point four inches northerly from the southerly line of the southerly granite pilaster, now standing in front of the store now occupied by Hiram H. Ames; thence easterly, passing through said point, in said pilaster, and parallel to said southerly boundary line referred to in said Davis’ deed, one hundred feet, to a passageway twenty feet wide; thence southerly by line of passageway thirty-five feet, more or less, to a passageway nine feet four inches wide; thence westerly by line of said way one hundred feet, to the line of said Main Street and the place of beginning, meaning and intending to convey all of the southerly portion of said estate, as far northerly as said point on said pilaster, with same distance in the rear,” and containing the usual covenants.</p> <p>" In 1834, the land through which the passageway described in the above deeds ran, and on both sides thereof, was owned by Isaac Davis, and the land on the northerly side of the passageway at the corner of Main Street was occupied by a block known as the Slater block, extending about thirty-six feet in depth and forming to that extent the northern boundary of the way. On the south side of the way a block called the Quinsigamond Bank block was built by him, and sold in 1863 to five grantees, with a right of way in Layard Place, so called, which was the way in question.* Beyond the southeasterly corner of the Slater block the northern line of the passageway was not marked or defined by any structure; but at that time, and for more than twenty years prior thereto, one Starkie as tenant, and the other persons who used the way and had rights of way therein as owners of real estate abutting on said way, as set forth in Starkie v. Richmond, and Green v. Richmond, 155 Mass. 188, had travelled over the open space which extended easterly from the rear of the Slater block in a northeasterly direction around the corner of the Slater block to some buildings in the rear. The Quinsigamond Bank block had an ornamental front, which, at the corner upon Main Street and the passageway above referred to, projected into the way beyond the main line of its wall, and at different intervals along the wall there were projections into the passageway, varying in width from one inch to two feet and a half.</p> <p>In 1878 the plaintiff removed Slater block, and erected the building now standing on the northerly side of the passageway. While he was engaged in that work, the wife of Starkie, who owned buildings in the rear and was authorized to represent him, went to the defendant as soon as the work had progressed enough to show where the walls were to be, and told him that he had gone over the passageway; to which the defendant replied “ that his deeds were all right.” Whereupon Starkie’s wife said that “ her husband’s deeds were before his, and that her husband understood that he had nearly ten feet of the passageway.” The plaintiff’s new building extended easterly from Main Street eighty feet and two tenths, leaving the passageway between it and the Quinsigamond Bank block of a uniform width of nine feet and four inches, measuring from the northerly wall of the bank building.</p> <p>After the notification by Starkie to the plaintiff, the latter took no steps, except as appears in the evidence below, to notify the defendant of the existence of an alleged claim of right in the land now covered by the front corner of his present building, or in the land subsequently enclosed by his fence, or of the suits of Starkie and Green against him. He took no steps to remove the encumbrance, if any existed.</p> <p>He proceeded to build his building, and later to join in the concreting of a portion of the way, and to erect and maintain his fence, as described at the time of the trial reported 155 Mass. 188.</p> <p>The defendant’s husband, who acted as her agent in the management of her property, was present as a witness at that trial. The plaintiff testified as follows:</p> <p>“ Q. With whom did you treat when you were purchasing this land ? A. Hiram Ames.</p> <p>“ Q. Mrs. Ames’s husband ? A. Yes.</p> <p>“ Q. When you were sued, in the equity suits of Green and Starkie against you, did you see Mr. Ames ? did you give him any notice of it? A. I did.</p> <p>“ Q. And he was a witness here at the time of the trial? A. Yes.”</p> <p>The defendant testified as follows:</p> <p>“ Q. You are the defendant in this case ? A. Yes, sir.</p> <p>“ Q. And Hiram Ames was your husband ? A. Yes, sir.</p> <p>“ Q. This is the deed to you, and the deed to Mr. Richmond ? (Deeds produced.) A. Yes.</p> <p>“ Q. Did you have a notification of the pendency of the Green and Starkie suits against Mr. Richmond ? A. No, sir.</p> <p>“ Q. Or any notification that you were to be held responsible for them ? A. I did not.</p> <p>“ Q. Up to the time this suit was brought against you? A. No.</p> <p>“ Q. What did Mr. Ames do, in connection with your real estate ? A. He collected the rents and did the business for me.”</p> <p>On cross-examination, she testified as follows:</p> <p>“ Q. Your husband managed the real estate for you always ? A. Yes.</p> <p>“ Q. You personally did not participate in the management of it at all ? A. I allowed him to do it.</p> <p>“ Q. You allowed him to do it, he was your agent ? A. Yes.”</p> <p>Within a short time after taking his deed from the defendant, and before he made any alteration in the property, the plaintiff discovered that other parties had rights to an open and unobstructed passage over the way which precluded him from a right to build over the way. Without resorting to his grantor, • the plaintiff then made a claim of damage upon Davis, and was paid by him the sum of $2,000 for surrendering the right to build over the way mentioned in the deed from Davis.</p> <p>Upon the above facts, the judge found as follows :</p> <p>“ 1. That the southerly boundary line of the land conveyed by the defendant was a straight line running from the easterly line of Main Street in a southeasterly course to a twenty-foot passageway in the rear; that this line coincided with the northerly line of a tract of land, called a passageway, nine feet and four inches wide, throughout its whole extent; that this northerly line of passageway is parallel with and nine feet and four inches from the building on the south side of Layard Place; and that this passageway or tract of land and its northerly boundary line constitute a monument in the deed.</p> <p>“ 2. That other persons had paramount rights in some portion of the area included in the defendant’s deed to the plaintiff, with its southerly boundary line thus established.</p> <p>“ 3. That in order to remove so much of the encumbrance as is affected by the cases of Starkie and Green against Richmond, the plaintiff had to pay in damages $2,587.86; for reasonable counsel fees, $677.46; and for witness fees, $51; making a total of $3,316.32.</p> <p>“ 4. That by reason of said encumbrance upon a triangular piece of the plaintiff’s land at the southeast corner, the plaintiff’s estate was diminished in value, in 1892, to the extent of $232.54.</p> <p>“ 5. That the plaintiff is entitled to recover the several sums aforesaid, with interest from October, 1892, to date.”</p> <p>Such judgment was to be entered “as shall be deemed proper.”</p> <p>The case was argued at the bar in January, 1895, and after-wards was submitted on the briefs to all the judges.</p>

Complaint charging that the defendant, on September 1, 1893, caught and took three hundred trout from the waters of “ Lee Brook,” so called, in Sheffield, with and by means of a certain net. Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptions in substance as follows. The stream from which the trout were taken was a brook made up of two or three tributaries, having its source in the town of Sheffield and known as Lee Brook.

<p>Promissory Note — Husband and Wife — Pledge — A geney — Evidence — Estoppel — Equity — Practice.</p> <p>If during the trial of a suit in equity exceptions are taken by the defendant to the admission of evidence, and after a decree in favor of the plaintiff, from which no appeal is taken, the case is reported for the determination of this court upon the questions of law presented by the report, the court will not revise the findings of fact necessarily involved in the decree, although all the evidence is reported.</p> <p>If a married woman indorses a promissory note given by her husband to a bank for a loan to him, and pledges to the bank shares of stock owned by her as collateral security for the note, the fact that sire subsequently indorsed other notes of her husband discounted at the same bank, without demanding the delivery to her of the certificate of stock, does not show an agreement on her part that the stock should be security for the general indebtedness of her husband to the bank.</p> <p>If a married woman indorses a promissory note given by her husband to a bank for a loan to him, and pledges to the bank shares of stock owned by her as collateral security for the note, it is competent for her to show, upon a bill in equity to redeem the stock, that her husband had no express authority to write upon another note, given by him to the bank for the amount to which his account had been overdrawn, a statement that the stock is collateral security for that note also, and that the transaction was without her knowledge; and it is also competent for her to show that she never knew that he had overdrawn his account.</p> <p>Oral evidence is admissible to show that an assignment of shares of stock, however absolute in form, is merely a pledge; and the consideration and purpose of the transaction may be shown in the same way.</p> <p>That a married woman, who has indorsed a promissory note given by her husband to a bank for a loan to him and pledged to the bank shares of stock owned by her as collateral security for the note, subsequently indorses other notes of her husband discounted at the same bank, without demanding the delivery to her of the certificate of stock, the assignment of which is signed by her in blank and accompanied by a power of attorney to the bank to sell the stock, does not estop her to maintain a bill in equity against the bank to redeem the stock, without paying the amount of another note given without her knowledge by her husband to the bank for the amount to which his account had been overdrawn, and upon which he wrote a statement that the stock was collateral security for that note also, the fact of such overdraft being unknown to her.</p>

<p>Tort, against the election officers of a ward, in the city of Northampton, to recover damages for wrongfully refusing, as the plaintiff alleges, to allow the ballot offered by him to be deposited in the ballot box at the time of the annual election of city officers on December 4,1894.</p> <p>The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>Contract, to recover the price of goods sold and delivered. Trial in the Superior Court, before Dewey, J., who directed the jury to return a verdict for the plaintiffs; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Personal Injuries — Electric Wire uninsulated — Law and Fact — Due Care — Negligence.</p> <p>If a tinsmith, who, while engaged in placing an iron conductor on a building upon the side of which an electric wire runs, is injured by receiving a shock from the wire by reason of the pipe coming in contact with a place on the wire where the insulating material has become worn off, it cannot be said, as matter of law, in an action for his injury, that the condition of the wire was so apparent that he must or ought to have seen it, although the accident happened in the forenoon; but if there is evidence that he was not an expert, and did not know that an electric light wire would do any hurt, or that such wires ran on the sides of buildings, the question of his due care is for the jury.</p> <p>If the insulation of an electric wire placed on premises by an electric light company is gone, and the wire has been in that condition for such a length of time that the company ought to have known of it, there is evidence of its negligence proper to be submitted to the jury in an action for injuries caused by the wire to a person rightfully using the premises for purposes of business.</p>

<p>Statute — Effect of Amendment— Trespass on Land — Notice to Trespassei--Defence — Evidence.</p> <p>If a statute recites that a previous statute “is hereby amended so as to read as follows,” and then enacts a somewhat different provision from that contained in the prior statute, but upon the same subject matter, the effect of the amendment is to substitute the language of the new statute for that of the old one, and other statutory provisions relating to the old statute, and not inconsistent with the new one, apply to the latter after that statute takes effect.</p> <p>The overseers of the poor of a city, if in control of its poor farm, have authority to post notices on the land forbidding trespass thereon.</p> <p>The notice authorized by St. 1890, c. 410, to be posted on land, forbidding trespass thereon, need not be signed.</p> <p>A belief on the part of a person entering upon land not in his control that the land is his is no defence to a complaint for a violation of St. 1890, c. 410, forbidding an entry without right upon the improved or enclosed land of another. Where a notice forbidding trespass on land is posted by the person having the law'ful control thereof, it is not necessary, in order to convict a person of a violation of St. 1890, c. 410, to prove that he actually saw such notice, if it was reasonably distinct, and was posted in a reasonably suitable place, so that by the exercise .of due care it would be seen by him.</p> <p>In an action for false imprisonment, evidence that the plaintiff was acquitted at the trial of the offence for which he was arrested is not admissible.</p>

<p>Contract, for money had and received. Trial in the Superior Court, without a jury, before Richardson, J., who found for the plaintiff, and the defendant alleged exceptions. Writ dated December 17, 1894. The following facts were proved or admitted.</p> <p>The plaintiff had been insane since 1877. Charles I. Rawson was his guardian from 1877 to March, 1894, when he was removed, and Francis H. Dewey was duly appointed guardian.</p> <p>Charles I. Rawson, guardian, on April 7, 1885, loaned the money of the estate to the defendant, who was his wife, and who was a sister of the ward, and took therefor her note without security, payable to the plaintiff, she then knowing that this money belonged to the ward’s estate. The amount of this money so loaned was the whole of the estate of the ward, but was never recognized or ratified as a lawful loan by the Probate Court, or by the new guardian.</p> <p>In an account called “ the final account of Charles I. Rawson as guardian,” he was adjudged by the Probate Court to have in his hands due the estate $8,821.14, and interest from September 1, 1894, being the money loaned to the defendant, no part of which sum has been paid to the new guardian, Francis</p> <p>H. Dewey, or for the benefit of the estate. No part of the loan to the defendant has been paid by her, though demand was made on her for the money before the action was brought.</p> <p>The defendant was one of the sureties on the bond of Charles</p> <p>I. Rawson, guardian. On or about the date of the writ in this action, the bond was put in suit in the name of the judge of probate, and the action is still pending. The defendant asked the judge to rule that on these facts the plaintiff could not recover. The judge declined so to rule, and found for the plaintiff in the same sum found due in the Probate Court on the account, the plaintiff claiming no larger sum.</p>

<p>Contract, against Herbert B. Church and Fred D. Goode, copartners under the name of Herbert B. Church and Com-pony, upon a written agreement signed by Church in the firm name. After the former decision, reported 162 Mass. 527, overruling the exceptions of the defendant Church, and sustaining the exceptions of the defendant Goode, the defendants filed in the Superior Court motions for a new trial and in arrest of judgment. These motions came on to be heard before Bishop, J., who overruled them. The plaintiff thereupon, by leave of court, discontinued as to the defendant Goode; and the judge, without further hearing or -finding, ordered judgment to be entered against the defendant Church. The defendants alleged exceptions.</p>

<p>Contract, to recover the expenses incurred by the plaintiff for the support in the Northampton lunatic asylum of a pauper, whose settlement was alleged to be in the defendant town. Writ dated June 21, 1894.</p> <p>Trial in the Superior Court, without a jury, before Hopkins, J., who found that the person committed to the hospital was a lunatic pauper; that she was thus committed on October 11, 1892; that she then resided in the plaintiff city; that she had been confined in the hospital continuously from that time to the time of the trial; that her legal settlement was during all that time in the defendant town ; that the treasurer of the hospital had duly demanded of the plaintiff payment of the charges.for the support of the pauper, and the plaintiff had paid every three months since the commitment the legal charges due therefor; that the amount thus paid prior to the commencement of this action was $249.32; that on November 18, 1892, the plaintiff gave due notice to the defendant of the fact of commitment and the date thereof, and that it had incurred and paid the legal charges on account thereof, and requested the defendant to provide for the pauper, and notified the defendant that it would seek reimbursement for such charges as had been paid and that might thereafter become due; and that this was the only notice given by the plaintiff to the defendant.</p> <p>The plaintiff asked the judge to rule that it could recover the entire amount paid by it from the time of the commitment to the date of the writ.</p> <p>The judge refused so to rule, and ruled that the plaintiff could recover only for the expenses incurred within three months next before the notice of November 18, 1892, and interest thereon ; and found for the plaintiff in the sum of $20.40.</p> <p>The plaintiff alleged exceptions.</p>

<p>Contract — Sale — Delivery — Evidence — Deposition — Signature.</p> <p>A. signed a contract by which he agreed, “in consideration of its delivery for me” at a specified express office, to pay B. $35 for an article bought of him, as follows : $10 “ upon delivery at the express office," and the balance in monthly payments, and that, upon A.’s failure to make any of the stipulated payments, all of the instalments remaining unpaid should immediately become due and payable, and B. might take the article from A.’s possession. The article was delivered as agreed at the express office. A. refused to receive it, and the express company after a time left it at B.'s place of business in pursuance of a rule of the company and without B.'s assent, and it was held subject to A.’s order. There was no repudiation of the contract by A. before the delivery at the express office. Held, in an action upon the contract, that the delivery at the express office fixed B.’s right to the price of the article; and that he was entitled to recover that amount. Field, C. J., Allen & Morton, JJ., dissenting.</p> <p>The deposition of a party to an action is not rendered inadmissible because he refused to answer a cross-interrogatory, if it appears to have been immaterial.</p> <p>In an action upon a contract purporting to have been signed by the defendant, his answer to an interrogatory, “ The signature resembles mine. I wish to have the contract identified before answering further,” coupled with the absence of any later denial, affords sufficient evidence of his signature.</p>

<p>Loss of Life—Railroad — Due Care —Assumption of Risk — Employers’ Liability Act—“Train” — “Charge or Control” — Fellow Servant — Negligence — Instructions — Defect in “Ways, Works, or Machinery” — Evidence.</p> <p>Evidence that a person employed by a railroad corporation as the hind end brakeman on a train, whose duty it was to make up the train and put it together and make the couplings, was last seen, before a collision of cars which caused an accident resulting in his death, going along towards the rear end of the train with a pin and one or two links in liis hands, and was found at a place where there was a separation between the cars, there being nothing to show that he had any warning or knowledge that the cars which caused the collision were coming down the track, or that he could see them, it being dark, and it not appearing that the presence of a lantern there would have prevented the accident, or that it was his duty to see that there was a lantern at his end of the train, will justify the jury, in an action against the corporation for causing his death, in finding that he was in the exercise of due care.</p> <p>A person employed by a railroad corporation to make up trains in its yard assumes the risks arising from the ordinary method of transacting its business, but not that from cars which are sent in at the rate of ten or twelve miles an hour, and with such force as to throw off the track one car of a train which he was making up, and to break the draw-bars of others.</p> <p>A number of cars coupled together, forming one connected whole and moving from one point to another upon a railroad, in the ordinary course of its traffic, under an impetus imparted to them by a locomotive engine which has been detached, constitute a “train,” within the meaning of the employers’ liability act, St. 1887, c. 270, § 1, cl. 3.</p> <p>The words in the employers’ liability act, St. 1887, c. 270, § 1, cl. 3, “ any person in the service of the employer who has the charge or control of any . . . train upon a railroad,” mean a person who, for the time being at least, has immediate authority to direct the movements and management of the train as a whole and of the men engaged upon it. It is not necessary that such person should be actually upon the train itself; a laborer or brakeman in such a position that for the moment he physically controls and directs the movements of a train is not in charge or control of it, though, under some circumstances, he may have such charge or control; and it is possible that more than one person may have “ the charge or control ” of a train at the same time.</p> <p>Brakemen, whose duty it is to take care of the brakes on the cars of a train where each is stationed, and to stop it seasonably when it has cleared a switch in the yard in which it is being shifted on to a side track, and after the engine and caboose have been detached, acting under the supervision and direction of the conductor, who is on the ground or in the caboose, are not in “ the charge or control ” of the train, within the meaning of St. 1887, c. 270, § 1, cl. 3, but are fellow servants of a person who, while employed by the railroad corporation in making up another train on the track in question, is killed by a collision of the two trains.</p> <p>Whether the foreman of the switching gang in the yard of a railroad corporation, whose duty it is to direct on which track a train shall be put, it being the conductor’s duty to see that it is switched on to the designated track, and it not appearing that such foreman, after he has given the direction, has anything further to do with the train, has “ the charge or control ” of the train, within the meaning of St. 1887, c. 270, § 1, cl. 3, quaere.</p> <p>In an action against a railroad corporation for causing the death of a person in its employ, by reason of the negligence of some person who had the charge or control of a certain train, in shifting it over upon the track where the former was at work, it appeared that the foreman of the switching gang in the yard said to the head brakeman on the train that there was room for forty cars on the track clear of the switch to the next track. There was nothing to show that this statement was not true, or that it was an improper place to direct the train to. It also appeared that it was customary, while trains were being made up, to switch cars in on the same tracks at the same time from both ends of the yard. Held, that there was no evidence of negligence on the part of the foreman. Whether a dangerous method of doing business constitutes a defect in the “ ways, works, or machinery ” of an employer, within the meaning of the employers’ liability act, St. 1887, c. 270, quaere.</p> <p>A person assumes the risk of such dangers as ordinarily are incident to the service in which he is engaged, and if after he has entered the service no change is made in the mode of doing the business so as to increase its dangers, he cannot be heard to complain that it might have been made safer, or that it was conducted in a hazardous manner.</p> <p>In an action against a railroad corporation for causing the death of the plaintiff’s intestate, while in its employ, by reason of the negligence of some person who had the charge or control of a certain train in shifting it over upon the track where the intestate was at work, the conductor of the train was asked, in cross-examination, the following question : “ Whether or not, after the caboose was cut off, you assumed any management of the trains 1 ” Held, that the question was properly admitted.</p>

<p>Personal Injuries — Evidence—Expert Witness — Exceptions.</p> <p>A question to an expert witness at the trial of an action, which assumes as an absolute fact, and not as a hypothesis, a matter which is in dispute, is properly excluded.</p> <p>In an action for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the breaking of a bolt in a machine upon which he was at work, an expert witness may give his opinion in regard to the relative fitness of steel and iron or other metals for use in the construction of a bolt for such a machine, but he cannot give an opinion which includes his views upon any conflicting evidence.</p> <p>An exception to the exclusion of evidence, offered to contradict the testimony of another witness, will not be sustained if the excepting party fails to show that the excluded evidence, if received, might properly have been considered upon the issue.</p>

<p>Bailment — Negligence of Bailee — A ction — Estoppel — Contract— Acceptance of Offer.</p> <p>If cloth is delivered to a dressmaker to be made into a dress, without any instructions, she is held to that degree of skill and care which will enable her to do the work intrusted to her in a reasonable and proper manner; and an action may be maintained against her for making up the dress on the wrong side of the cloth, if, in the exercise of a proper degree of skill and care, the dress ought not to have been made up in that way.</p> <p>In order to establish an estoppel on the part of the plaintiff in an action, it is necessary that there should be evidence tending to show that the defendant was induced by the plaintiff’s conduct to do something different from what he would otherwise have done, and that the plaintiff knew or had reasonable cause to know that the defendant would so act.</p> <p>If an offer by one party to a contract of bailment is varied in its acceptance by the other party, and the latter’s proposition is not accepted before it is withdrawn by him, he is not bound thereby.</p>

Complaint, charging the defendant with illegally keeping intoxicating liquors with intent to sell the same, at Marblehead, on April 14, 1894.

<p>Complaint, for bringing intoxicating liquors into the town of Amesbury, on August 30,1894, the defendant having reasonable</p> <p>cause to believe that the same were intended for sale in Amesbury, in violation of law.</p> <p>At the trial in the Superior Court, before Lilley, J., the jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Contract. The defendant filed a declaration in set-off, consisting of four counts upon promissory notes, one count upon an I O U, and a sixth count upon an account annexed. The answer to the declaration in set-off was as follows:</p> <p>“ And now comes the plaintiff, and for answer to the defendant’s declaration in set-off and to each count therein contained, says that, if the defendant shall prove that plaintiff ever owed the defendant the amounts set forth in said counts, that he has paid the same in full.”</p> <p>At the trial in the Superior Court, without a jury, before Mason, C. J., the plaintiff offered evidence of payment under this answer, to which the defendant objected, and asked the judge to rule that no evidence of. payment was admissible thereunder. The judge refused so to rule, and ruled that the plaintiff could prove payment thereunder; and the defendant alleged exceptions.</p>

Complaint to the Second District Court of Eastern Middle-sex, chai’ging that the defendant, on the first day of June, 1894, and “ on divers other days and times between that day and the day of making this complaint [which was the 5th of the following December], at Waltham, in said county of Middlesex, and within the judicial district of said court, unlawfully did expose and keep for sale intoxicating liquor with intent unlawfully to sell the same in this Commonwealth, the…

<p>Policy Slips — Evidence — Instructions.</p> <p>The offence of having policy slips in oneVpossession can be committed at any time, and therefore, at the trial of a complaint under St. 1895, c. 419, possession at any time may be proved, although the slips were not found in the defendant's possession when arrested on the complaint, nor when arrested for any violation of law mentioned in § 3 of the statute.</p> <p>An exception to a refusal to give a request for a ruling that a statute is unconstitutional will not be considered if the instruction to the jury, which was sufficiently favorable to the party asking the request, renders the exception immaterial.</p>

<p>"Petition for a writ of certiorari to quash the proceedings of the county commissioners, in ordering certain things to be done to a bridge by which the petitioner’s railroad crosses Main Street in Springfield. The case was heard by Morton, J., upon petition and answer, and reserved for the determination of the full court; such decree to be entered as law and justice might require. The facts sufficiently appear in the opinion.</p> <p>The case was submitted on briefs to all the judges.</p>

<p>Tort, under St. 1887, c. 270, §§ 2, 3, by the plaintiff, as one of the next of kin of Michael Houlihan, for causing his death. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.</p>

<p>Two ACTIONS OF TORT, for personal injuries occasioned to the plaintiffs respectively, while in the defendant’s employ as masons, by the fall, upon a staging on which they were standing while at work, of certain terra-cotta brackets and copings which projected from the wall of a building in process of erection by the defendant, the weight of the brackets and copings breaking the staging and precipitating the plaintiffs to the ground. The declaration in each case contained four counts, the first three at common law, and the fourth under the employers’ liability act, St. 1887, c. 270. The cases were tried together in the Superior Court, before Braley, J., and at the close of the evidence the plaintiffs elected to rely upon the second and fourth counts of the declarations.</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>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. Trial in the Superior Court, before IAUey, J., who, at the close of the evidence, 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>Information in equity, filed June 2,1891, at the relation of the inhabitants of Fairhaven, against George A. Briggs, trustee of a fund created by the will of Abner Pease, deceased, the heirs and next of kin of said Pease, and the Male Overseers of the New Bedford Monthly Meeting of Friends, a corporation, praying that the court would declare and establish the trust created by the will to be a public charity, and to decree its enforcement; and that, if the trust could not be specifically carried out according to the directions of the will, the same might be decreed to be executed as nearly as possible to the intent of the testator, by appropriating the income of the trust fund for certain specified purposes, or that the case might be referred to a master to report a scheme for the administration of the trust as nearly as possible to the intent of the testator. The case was referred to a master, who found and reported the following facts.</p> <p>Abner Pease died on December 23, 1852, leaving a will dated January 18,1847, which was duly proved and allowed, and which contained, among other provisions, the following clauses:</p> <p>“ I give the use and improvement of the remainder of said farm to the school committee of said town of Rochester and successors in that office, in trust for the benefit and use of the two school districts in said Rochester, generally known by the names of Aucute and Pine Island districts, to be divided between said districts as follows.” Then follows a description of the boundaries.</p> <p>“ After the decease of my wife, or when she ceases to be my widow, I give to my said executors during their lives, or the life of the survivor, and after their decease, or should they decline the trust, to the selectmen of Fairhaven in trust, and to their successors in that office, as a fund forever, five thousand dollars, the income of which to be appropriated for the purpose of supporting a school in school district No. 19 in said Fairhaven, called the Pease District. This sum is in addition to a lot of land and schoolhouse thereon which I have already given said district.</p> <p>“ I give, after the decease of my said wife, or when she ceases to be my widow, to the overseers of the Long Plain Friends ‘ Preparatory ’ Meeting, and their successors in that office, in trust forever, the remainder of my personal estate not otherwise disposed of; the income of which to be appropriated for the benefit of the Friends Meeting in said Fairhaven and Rochester.”</p> <p>Mercy Pease, the testator’s wife, died on May 22,1860.</p> <p>On June 25, 1863, the executors having declined the trust, George H. Taber, Jonathan Cowen, and Bartholomew Taber of Fairhaven, at that time selectmen of the town, were duly appointed by the Probate Court, and gave bonds and entered upon the duties of their office. George H. Taber resigned his trust on March 19, 1880, and Bartholomew Taber and Jonathan Cowen resigned their trusts in September, 1880, and George A. Briggs of Fairhaven was duly appointed the trustee on January 23, 1882, gave bond, and entered upon the duties of his office, and still continues to be the trustee of the fund.</p> <p>School District No. 19, afterwards commonly called the Pease District, was established by vote of the town of Fairhaven in 1838, at the special request of Abner Pease, who carefully defined its limits. It comprised about twenty-five acres in a nearly triangular shape, bounded north by Bridge Street, which runs directly east from the New Bedford and Fairhaven Bridge, or rather by a line running just far enough north of Bridge Street to include all the houses standing on that street, west by the harbor, and southeast by Herring River, which runs southwesterly across the line of Bridge Street into the harbor.</p> <p>The first meeting of the district for organization was held on April 16, 1838. On the same day Pease gave to the inhabitants of the district a deed of a lot near the centre of the district, with a schoolhouse upon it already erected by him.</p> <p>From that time until his death Pease took an active interest in the affairs of the district, was at times on its prudential committee, and was one of the committee having charge of the enlarging of the building in 1847 or 1848.</p> <p>In 1869, the school district system in the Commonwealth was abolished by general law. The town of Fairhaven never after that re-established the system under the authority of any subsequent legislation.</p> <p>School was kept in the district, and in the house given to the district by Pease, from the organization of the district in 1838 until the year 1885. There never lias been any other schoolhouse within that district. From the beginning and until the fund provided by Pease in his will became available, the school was maintained by the district in the ordinary manner of a district school. After this fund became available, its income was applied towards supporting the school, the balance necessary for the purpose being paid from the town appropriations as before. From 1855 to 1869 inclusive, the average amount received annually from the town towards the support of the school was $237, and during those years the average attendance of scholars was forty-eight. From the abolishing of the school district system in 1869 until the year 1885, the town, by agreement with the trustee, paid one half the current expenses of the school. During that time the average attendance was twenty-six.</p> <p>In 1885 the town accepted as a gift from Henry H. Rogers an elegant new brick schoolhouse located in a very desirable spot near the centre of the town. This school building is intended and designed for the accommodation of all the scholars in town except those in the rural districts. It will comfortably accommodate 400 pupils. The average number of scholars on the rolls since it was opened has been about 320. The number is not any larger than that at the present time. This is called the Rogers School. It is 3,300 feet distant from the centre of the Pease District. The Rogers School is a graded school, and has every facility for employing the most improved methods in common school instruction; a large proportion of the school children in the town attend this school. Four rural schools from one to three miles away are still maintained. These have an average attendance of twenty-five to thirty scholars.</p> <p>In 1885, as soon as the Rogers School was opened, the school committee of the town proposed to remove to this school the scholars in the Pease District. At a meeting of the inhabitants of the district, called to consider this proposition, at which fifteen or twenty persons were present, the proposition was approved. The scholars were removed to the Rogers School, and have been there ever since. No dissatisfaction with this arrangement has ever manifested itself. There are now twenty-five school children living within the limits of the old Pease District, in ten or twelve families.</p> <p>Since 1885, the trustee has not used the income of the fund for any school purpose, but has allowed it to accumulate until the principal and interest now amount to about $8,000.</p> <p>Since the school has been transferred to the Rogers School, the heirs of Abner Pease have brought a writ of entry and recovered the schoolhouse and lot, by reason of a breach of a condition in the deed requiring that the schoolhouse should be kept and maintained by the inhabitants of the district for the use of a school. Judgment in this suit was obtained by default, the inhabitants of the district, though summoned, making no appearance."</p> <p>“ In the present condition of things I have no doubt it is impracticable to establish and support such a school, and I so find. If the children had no other chance for instruction, I have no doubt it would be both possible and practicable to use the income of this fund within the district in such a way as to be of considerable benefit to them.</p> <p>“ But under the present circumstances, with the town ready to give them good instruction through thirty-eight or forty weeks in the year, and with an excellent school within easy reach, which they are expected to attend, and which they are now attending with perfect satisfaction, to use the income of this fund to maintain a separate school in the old Pease District for the twenty-five scholars in that district would be worse than a waste of money.</p> <p>“ Some of my reasons for this opinion are these: 1. The whole territory within this district lies flat and low. It is not an inviting locality for a school. 2. The probable expense of supporting in the district, outside of the cost of a school building, would be $350 a year; with the present income of the fund it is not probable that a school could be maintained for more than one half of the usual school year. 3. Such a school must necessarily be a mixed school, with all the grades of scholars under one teacher. With the Rogers School open to them, I do not believe any scholars would attend this school unless they were compelled to do so.</p> <p>“ It was suggested by the counsel for the trustee that the trustee might properly and profitably spend the income in providing some kind of instruction which does not come within the usual course of common school instruction, or which at least does not embrace the' whole of such instruction, as, for instance, in a drawing school, or writing school, or school for manual training, or an evening school of some sort.</p> <p>“ If such a disposition of the money would come within the intention of the testator, I think the fact that for these last nine years the trustee has made no attempt to spend the money in this way is good evidence that he has not found it advisable or practicable so to spend it; and I think in this matter he has shown good judgment. There was no evidence before me that there was any field for such instruction among the inhabitants of this district which would justify the use of the income in that way.</p> <p>“ The only other plan for using this fund suggested by the trustee was to hold it, either till the town should build a schoolhouse in the district and assist the trustee to suppdrt a school there, or until the fund should accumulate to such an amount as to be sufficient to support a school without assistance from the town. The trustee frankly stated that he did not expect to see either of these events happen during his lifetime.</p> <p>“ There are now about 175 inhabitants in the Pease District. The territory is already pretty well covered with houses, and it is not likely that the population will greatly increase for many years to come.”</p> <p>In regard to the contention in this case of the Male Overseers of the New Bedford Monthly Meeting of Friends,, that, the particular legacy for a charitable purpose having failed, it should fall into the residuum of the testator’s personal estate, which also creates a valid charity, this residuary clause was passed upon by the Supreme Judicial Court in the case of Dexter v. Gardner, 7 Allen, 243. Ever since that decision was given, and until the present time, the income of the residuary fund has been expended conformably to the terms of the decision. While the Overseers of the New Bedford Monthly Meeting expend some of the income of this fund for charitable purposes other than educational, they expend a fair share of it for the education of children within the particular meetings comprising the Long Plain Preparative Meeting.</p> <p>Hearing upon the information and answers, the master’s report and exceptions thereto, before Morton, J., who reserved the case for the consideration of the full court; such disposition to be made as law and justice might require.</p>

<p>Trover— Conversion — Consignment of Goods with Right of Sale and Payment when sold — Defence — Pendency of previous Action by Consignor against Defendant for Conversion of same Goods.</p> <p>The consignees, who are partners, of goods, having the rightful possession of them, with the right to sell them and to pay for them as they are sold, the title remaining in the consignor until the purchase price has been paid, may maintain trover for the conversion of the goods by an officer, who seizes them upon an execution against one of the consignees ; and the pendency of a previous action in the same court by the consignor against the officer for the conversion of the same goods is no defence.</p>

Tort, for personal injuries occasioned to the plaintiff while crossing the defendant’s tracks in Taunton, by a collision between the horse and tip cart driven by the plaintiff, and a locomotive engine of the defendant. At the trial in the Superior Court, before Hammond, J., the jury returned a verdict'for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

<p>Contract, to recover $2,000 on a certificate of membership issued by the defendant, a beneficiary association, to William C. Waterworth, for the benefit of Sarah Waterworth, his wife. After the beginning of the action, Sarah Waterworth having died, the plaintiff, as her administratrix, was admitted to prosecute the same. Trial in the Superior Court, before Sherman, J., who directed a verdict for the defendant, and, at the request of the parties, reported the case for the determination of this court. If the plaintiff was entitled to recover, judgment was to be entered for her for $1,485, with interest from the date of the writ; otherwise, judgment was to be entered for the defendant. The facts appear in the opinion.</p>

<p>Complaint, under Pub. Sts. c. 207, § 53, charging that the defendant at a time and place named, “ with force and arms, was the person having the charge and custody of a certain animal, to wit, a horse, and that the said horse was then and there unfit for labor by reason of sores upon the back and legs of said horse, and that the said William H. Porter did then and there cruelly drive the said horse when unfit for labor as aforesaid.” In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment, for the reason that there was no allegation therein that “ the defendant knew that the horse named in the complaint was unfit for labor by reason of sores upon his back and legs, or otherwise.” The motion was overruled by Gaskill, J., and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Indictment, for the manslaughter of Gideon W. Lattimer, on- December 13, 1894, at Lynn. At the trial in the Superior Court, before Gaskill, J., the following facts were not in dispute. Lattimer was a single man, and the defendant was a single woman. For some months before December 13,1894, an engagement of marriage had existed between Lattimer and the defendant, and there had been illicit relations between them.

Contract, to recover a deposit in the defendant bank by the executors of the will of Annie M. Pike. Mary L. Hewett intervened as a claimant of the fund under St. 1894, e. 317, § 33. Trial in this court, before Lathrop, J., who found for the plaintiffs for the balance of the amount of the deposit and accrued interest, and, at the request of the claimant, reported the case for the determination of the full court.

<p>Restraint of Trade—Valid Contract — Injunction — Penalty — Damages.</p> <p>B. signed an agreement which recited that for value received of A., and for the further consideration of A. “ taking from me my lease of an apothecary shop in I., . . . my promise herein being the chief inducement leading him to take said lease, and to purchase the property therein, and in said shop and the good will of the business, — I hereby agree with said A. . . . under a penalty of one thousand dollars (to be forfeited and paid said A. or his legal representatives, in the event of my committing any breach of this agreement) not to engage directly or indirectly, or become in any manner interested, in the drug business within at least two miles of said apothecary shop, whose lease said A. takes from me, without first obtaining the written consent of said A. thereto.” Held, on a bill in equity for an injunction for a violation of the contract, and for the payment of one thousand dollars as liquidated damages, that the contract was valid; that, as there was evidence of loches on the part of A., an injunction was rightly refused ; that the sum named was a penalty, and that the judge was warranted in finding substantial damages.</p>

<p>Public Bridge—Property of County — Indictment—Variance.</p> <p>A county in which is located a bridge laid out as a public highway between two towns, the cost of the construction, maintenance, and repair of which is apportioned between the county and the towns, has a qualified or special property in a part of the bridge, which, under Pub. Sts. c. 214, § 14, is sufficient to sustain an indictment for burning the bridge, alleging it to be “ the property of the county.”</p>

<p>Contract, against the executor of the will of James J. McDermott, upon the following instrument, dated May 29, 1889, signed by “James J. McDermott, Treas.,” and sealed: “ In consideration of a license granted the Sacred Heart Society, by the supervisors of highways and bridges of the city of Springfield, to occupy a portion of the street in front of their lot on Chestnut and Linden Streets, where they are erecting a building, I hereby agree that they shall comply strictly with the terms of said license, and indemnify the city from all loss, cost, or expense that it may suffer by reason of the occupancy described in said license, and I further agree, at the end of the term for which said license is granted, that they shall remove all rubbish made or deposited on said street in the erection of said building, and put that portion of the street in as good condition as it was before its occupancy by them.” Indorsed upon it was the approval of the board of supervisors of highways and bridges.</p> <p>The declaration alleged that the defendant’s testator, for a good consideration, executed to the plaintiff the contract above set forth ; that the Sacred Heart Society did not strictly comply with the terms of the license named therein; that the society did not, at the end of the term for which the license was granted, put that portion of Chestnut Street named in the license and the contract in as good condition as it was before its occupancy by the society; that the society had not indemnified the plaintiff from all loss, cost, or expense which it suffered by reason of such occupancy; that, by reason of the use made by the Chestnut Street society, as covered by the license, the same became in a defective condition, and was unsafe for public travel; that one Mary Cullinan, while on her way to attend the church of the society, on March 20, 1892, and while in the exercise of due care on her part, fell, by reason of such defective condition of the street; that she instituted suit to recover damages therefor, and recovered against the plaintiff judgment for $813.60 damages, and $57.16 costs of suit, which sums the plaintiff was obliged to, and did pay her ; and that, by reason of such failure on the part of the society to comply with the terms of the license, the plaintiff had suffered great damage, which the defendant was obligated to it to pay.</p> <p>Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Elijah A. Newell, a witness for the plaintiff, testified that he was the city clerk of Springfield; that he had the contract declared on; that a license was issued in connection with the contract, and was mailed to McDermott; and that the license read as follows:</p> <p>“ City of Springfield. Springfield, May 29, 1889. A license is hereby granted to Sacred Heart Society to occupy a portion of Chestnut and Linden Streets, not to exceed eight feet of their width, in front of their lot on said street, for depositing building materials thereon while building ; provided, said materials shall be in the street no more than three hundred days, and that the said Sacred Heart Society shall conform to Sections 1 and 2 of ‘ Ordinance No. 80, to amend Ordinance No. 44 of said City of Springfield,’ as follows:</p> <p>“ ‘ Section 1. No person, except the superintendent of streets in the performance of his duties, shall break or dig up the pavement or ground in any public street, or any sidewalk or common in the city, or erect any staging for building thereon, or place any materials or rubbish thereon, without first obtaining from the board of supervisors of highways and bridges a written license, stating the space in the street or other public place that may be occupied, and the time allowed for such occupancy, and such other provisions as they may deem best, and filing with the city clerk a written agreement, under seal, approved by said supervisors, to comply strictly with the terms of the license, and indemnify the city from all loss, cost, or expense that it may suffer by reason of such occupancy.</p> <p>“ ' Section 2. Whenever any street, lane, alley, or sidewalk, or other public place in the city, shall, under any license granted, as provided in the preceding section, be dug up, obstructed, encumbered, or otherwise thereby rendered unsafe or inconvenient for travel, the person so licensed shall put, and at all times keep up, a suitable railing. . . . And shall also execute and file with the city clerk a written agreement, under seal, approved by said supervisors, to comply strictly with the terms of this license, and indemnify the city from all loss, cost, or expense that it may sustain by reason of the occupancy of the street above described.’ ”</p> <p>It was signed by the board of supervisors of highways and bridges.</p> <p>The witness further testified that the approval was placed upon the contract two days after it was signed by McDermott, and before the license was mailed to him; that the license had got that; that “we approved it at the same time”; and that, on May 31, 1889, it was read before Edward S. Bradford, mayor, John McFetheries, and L. Z. Cutler, supervisors of highways and bridges.</p> <p>On cross-examination, he testified as follows:</p> <p>“ The license was issued for three hundred days; that was the outside limit; there was no agreement, bond, or any other agreement of indemnity, or anything of that kind except this one; we received no agreement, contract, or any writing whatever from the Sacred Heart Society; the agreement was signed in the office; I was city clerk at that time; I kept no copy of this license; McDermott came in there as other people do, and he signed that bond after looking it over.”</p> <p>Mary Cullinan, a witness for the plaintiff, testified as follows: “ On Sunday, March 20,1892,1 went to church along Chestnut Street, at about seven o’clock in the morning; near the north side of the new Sacred Heart Church, on Chestnut Street, I fell down and broke my arm; the sidewalk was uneven and there was ice on it; I fell forward on my hand; I fell about the middle of the sidewalk; I can’t tell how uneven the sidewalk was; I don’t remember whether there was a hole there; when my foot struck, I knew it was uneven.”</p> <p>Willie Foy, a witness for the plaintiff, testified as follows:</p> <p>“ I was with Mrs. Cullinan on the day she received her injury; when she received the injury she was next the north tower of the new edifice of the Sacred Heart Church; she was about in the centre of the sidewalk; the sidewalk was very uneven; you could see the edges of the brick where there was a depression ; she fell right on the ice; of course, there must be a depression to have ice there ; I suppose the depression of the brick caused the ice to form; the ice was a patch as large as the seat of a chair; it was about in the centre of the walk and nearly to the north entrance of the church.”</p> <p>Melvin H. Strong, a witness for the plaintiff, testified as follows: “ In 1892 I lived at the corner of Chestnut and Everett Streets, the next corner to where this sidewalk was; I think I had lived there nine or ten years previous to March 20, 1892 ; I remember the time when they began the erection of their new edifice, but I don’t remember the year; the building is of brick and stone ; I could n’t tell you how long they were in building the stone work; before they began work, the sidewalk in front of the church was good ; during the erection of the church teams were driven across the walk with brick and stone, and it broke it all up; they made no other use of it in particular that I know of; they had to drive the teams across to get their brick and stone up near the church where they used it; I never saw any material dumped exactly on the sidewalk; this driving of teams occurred along by the church, in front of the church; from that time on nothing was done in repairing or fixing the walk until they got done there.”</p> <p>Edward P. Blake, a witness for the plaintiff, testified as follows: “ In March, 1892, I lived on Carew Street; in going to my work from my house, I would pass the Sacred Heart Church usually four times a day, sometimes six; I recollect about when the church was begun ; the condition of the sidewalk in front of that church, before they began the construction, was good, first class, recently relaid; it was as smooth as any walk I know of in Springfield; they used the walk, during the construction of the church, for the storage of material to a great extent, and I have seen the teams drive across it a great many times; brick and stone were stored on the walk; as near as I can remember, there were two or three places, at least, where they crossed that walk, had planks laid down, and a good portion of the time the walk was so obstructed that materials and teams couldn’t get through except here and there; I should say two years, at least, the walk was in that condition.”</p> <p>On cross-examination, the witness testified as follows :</p> <p>“ I think the cellar was built of brick; I don’t remember whether there was any stone in the cellar; there was a good deal of teaming round when they were digging the cellar; I don’t think the most of the teaming was done at that time.” Waitstill H. Allis, a witness for the plaintiff, testified as follows: “ I live on Carew Street, beyond this church ; I recollect the fact of their beginning the erection of this church ; at the time they began to use it, it was a good sidewalk; it had been recently relaid and was practically a new walk ; along in the early part of the hauling of material there, they would drive in, two of them, get unloaded, drive out down across the walk, and turn out on the north side where there was a regular open driveway; to my recollection there were two or three places where they drove over the walk; that continued up to quite recently, within a year, I should think.”</p> <p>The testimony of the witnesses, Strong, Blake, and Allis, was admitted against the plaintiff’s objection and exception.</p> <p>John M. Keough, a witness for the defendant, testified as follows:</p> <p>“ I am the janitor of the Sacred Heart Church, and have been for nine years; during the nine years I have been there, there has been a sidewalk laid on Chestnut Street; during those nine years there has been no other sidewalk laid there; I could n’t exactly tell just when they began to dig the cellar of the church, and I don’t remember when they began to lay the brown stone; during the progress of the work they used to drive in there at the north side of the church, go back and forth; the brown stone was piled up between the curbstone in Chestnut Street and the sidewalk; the biggest part of the stone was taken from there in a hand-barrow, with two men, and some taken with a little truck, with two handles to it; this was a little two-wheeled truck, with wheels about three or three and a half inches wide; the stone was put on these trucks and drawn in there; during the progress of this work from the beginning, nothing was done to the sidewalk; during all the progress of this work, the walk was never obstructed only when the big stone was coming in there for the steps; when these stones were coming in, the teams backed up to the curbing on Chestnut Street and then they put a plank on a level with the team, slanted it in towards the walk and lifted the steps from the top of the wagon to the outside of the walk; none of this material or timber touched the walk; it was bearing on the blocking, and the blocking rested one end upon the wagon and the other end on the ground inside of the sidewalk; this same thing was done for each of the tower doors.”</p> <p>On cross-examination the witness testified as follows:</p> <p>“ Up to the time they began to build on top of the foundation, the church people had n’t done anything in going over the walk; whatever was done was done after the foundation was up; I could n’t exactly say whether it was after April, 1889, that they began to lay the ashier; when the ashier began to come for that church, they began to store it all along Chestnut Street, between the sidewalk and the curb; they did n’t pile much in front, most of it went round to the back of the church ; they had two ways of getting the ashier over the sidewalk; one was to carry it on a platform and the other was to drag it over on this truck; I never saw them taking more than one at a time; they would wheel it across the walk, then dump it and come back and get some more; in July, 1892, two or three months after the accident, the sidewalk in front of the church was relaid by the parish.”</p> <p>Peter T. McGuire, a witness for the defendant, testified as follows:</p> <p>“ I passed by the church and property of the Sacred Heart Society on Chestnut Street four times a day for fourteen years ; I remember the time they were building the Sacred Heart Church on Chestnut Street; the cellar wall was made of granite, no brick in it; during those years that I was passing through, there was no interference or interruption of travel upon the sidewalk in front of the church oil Chestnut Street; the corner stone of the church was laid the 21st day of October, 1888; when the corner stone was laid, nothing more than what I should call the water-table to the building was erected.”</p> <p>On cross-examination, the witness testified as follows:</p> <p>“ This church is a large brown stone church; there was a good deal of stone out there at the front sometimes ; some of the stone was pretty large ; it was all brown stone; it was piled on what they called the grass plot, between the sidewalk and the curbing; I suppose the large stones were taken over from the street and got in there some way; after the corner stone was on, they did no more work on the church that winter; they waited until the next summer.”</p> <p>Thomas F. Bourke, a witness for the defendant, testified as follows:</p> <p>“ I was employed as a carpenter on the Sacred Heart Church; I began to work late in May or early in June, 1889; I continued to work there until the 30th of December, the same year; the work stopped then for some little time; during the time I was there, at the north side of the church, there was a temporary di’iveway made, and they drove in there with the stone and material for the building ; there was also a driveway at the rear of the church on Linden Street; they also unloaded some of the ashier on the Chestnut Street side, and piled it on the grass plot between the curbing and the bricks ; I think there was no teaming in front of the church on the place where the church stands, on the brick sidewalk; the ashier that was on the grass plot between the brick walk and the curbing was taken into the premises in a hand-barrow, some of it, and some of it was carried in by two men on to the scales and derrick ; there was nothing done to the sidewalk during the progress of the work that I know of.”</p> <p>On cross-examination the witness testified as follows:</p> <p>“We started framing the roof in July or August, 1889 ; they were ready for part of the roof in October, I guess; I doubt if the entire ashier for the roof was finished that winter, when the work was stopped, the 20th of December; they shut everything down the 20th of December, and I think in the spring after-wards they finished the towers and put up the remaining stone; substantially, all the wall was put up in 1889.”</p> <p>Jeremiah It. Driscoll, a witness for the defendant, testified as follows:</p> <p>“ I live on Greenwood Street, near the corner of Chestnut Street, a little south of the Sacred Heart property; I am a contractor and excavator ; I did the excavating for the cellar of the Sacred Heart Church and got the foundations ready; that was commenced the latter part of May, 1888; in 1887 and 1888 I had the contract from the city for laying the sewers; in such capacity, I connected the Sacred Heart property with the Chestnut Street sewer in October, 1888; that was done so as to be about four or five feet south of where the pipe actually was, — four or five feet, I should think, south of the north tower of the church; it was a very deep sewer ; the soil was moist hard-pan over the hard red clay within six or seven feet of the surface, and then a mixture of hard-pan and sand ; I had no shoring for the walls of that trench ; I had to dig down fifteen feet, four and a half feet wide, without any bracing; there was a brick sidewalk at that time; I had to take up the brick; I think the water pipe was put in shortly after; there was no water pipe when I laid the sewer; that was put in the same trench; it was part of the same ditch; the sidewalk settled; it started at the side of the trench; it would naturally commence settling there; this had settled pretty near the width of the trench; in the centre it would naturally settle more; Foy pointed out the place where he said Mrs. Cullinan fell; it was right over this sewer and water pipe; I laid the bricks j there is a brick curbing against the brick walk; the water getting between the bricks and the sidewalk would naturally crowd them out; I never saw any teaming done but what they used to draw their sand from Linden Street in front of the church and then turn in on Chestnut Street; they used to bring the brick on Everett Street, back of the church, and pile it up, and the ashier was mostly laid on Linden Street; a team could n’t get in in front of the church edifice on the brick sidewalk; it would be impossible, so that there would be no teaming in front of the church edifice only on the Linden Street walk; they built a platform, the wagon was backed up across Chestnut Street and the horse was taken out, and then they built a platform with cribs from the wagon level with the wagon, and built it right straight to the steps of the church, and the platform was taken upon that, rolled in upon the rollers from the wagon on to the place in the entrance of the church; they were certainly two feet, and in some places three feet above the sidewalk ; there was no pressure on the sidewalk; after they picked out what they wanted of the ashier on the grass plot, between the brick sidewalk and the curbing, they put it on hand-barrows and carried it in; they don’t do any harm to the sidewalk unless they do it with their feet; I never saw a time when the sidewalk was n’t perfectly clear; I never saw any harm come to the sidewalk from the building operations.”</p> <p>On cross-examination, the witness testified as follows:</p> <p>“ It would be impossible for teams to drive in in front of the church with a load; there were no big stones in the church with the exceptions of the platform and pilasters, no stone that would weigh over 300 pounds in the whole church outside of the pilaster’s and the steps ; all the stone, big and small, that lay between the sidewalk and that church edifice never got in there by being taken in on a wagon in front; my attention was first called to this matter the Sunday the woman fell; that walk had been there probably ten years ; it was not a new walk just laid ; the new walk was laid about two years ago ; that was the first walk that was laid after this accident; the sidewalk settled there, which it does wherever a sewer is laid in Springfield; it had been settling for two years, a little, more or less; it did n’t look like a place in the walk as would be made by crushing in the walk by weight; it looked like a settle, and that is what I know it was, as I passed by it every day.”</p> <p>The defendant testified that he had charge of McDermott’s papers and effects, and did not find any such license as was spoken of among his papers and effects.</p> <p>It was agreed that Chestnut Street was a public highway; that McDermott, who signed the instrument in suit, died July 26, 1891; that there was no question that the Sacred Heart Society existed; that Mary Cullinan recovered in her suit against the city of Springfield the sum of $813.60 ; that judgment was rendered for that sum and paid by the city; that the plaintiff in this action, if entitled to recover anything, was entitled to recover that sum with interest; that the date of the defendant’s appointment as executor was December 16, 1891; and that the Sacred Heart Society was solvent.</p> <p>At the close of the evidence, the defendant asked the judge to give, among other instructions, the following:</p> <p>“ 1. Upon all the evidence, the defendant is entitled to a verdict. 2. Upon the whole evidence, the license issued to the Sacred Heart Society was illegal and void, and the defendant’s testator was not bound by his guaranty of acts done or to be done thereunder. 3. Upon all the evidence, the occupancy of the sidewalk on Chestnut Street by the Sacred Heart Society, during the term of the license, did not cause the injury to Mary Cullinan, and the defendant is not liable for the amount which the plaintiff was obliged to pay to Mary Cullinan. 4. There is no evidence that the plaintiff has made any attempt to collect the amount of said damages from the Sacred Heart Society, and the plaintiff therefore cannot recover in this action. 5. There is no evidence that there was any use or occupancy of the sidewalk by the Sacred Heart Society at the point where Mary Cullinan fell and received her injury, and the plaintiff therefore cannot recover.”</p> <p>The judge refused to give the instructions requested, and instructed the jury, among other things, as follows:</p> <p>“ The plaintiff must satisfy you that at the point where Mrs. Cullinan met with her injury there was a defect in the sidewalk caused by the Sacred Heart people in using the sidewalk in connection with the construction of the church, under the license, and during the period of the license, and they must satisfy you that that defect continued, had not been removed, had not been repaired, but continued down to the time when Mrs. Cullinan fell, and operated to produce her injury. I do not think it is legally necessary, in order that the defendant might be held responsible, if the other conditions of responsibility exist, that the accident should have happened during the period of the license, but it must be made to appear so that you are satisfied of it by the preponderance of the evidence, that during the period of three hundred days the people building the church produced a defect in the sidewalk, caused a state of things which appeared and was found in Mrs. Cullman’s case to be a defect, and that that condition continued unremedied down to the time when she met with her injury, and was the cause of that injury. If the plaintiff satisfies you of these facts, then the plaintiff would be entitled to recover. . . .</p> <p>“ Now, it may occur to you that nobody comes to testify directly to any specific act or acts of the Sacred Heart Society producing the defects. The evidence has been laid before you, the course of events, course of conduct, and you are asked to infer from the nature of the occupancy, which the plaintiff claims to have shown by the evidence, that this defect was produced in this way. And, on the other hand, you have the evidence and the suggestion that, if there was a defect there, it was caused by the laying of the sewer pipe and by the depression of the ground after it. Now, in any matter like this, where you have to find a fact, it is not necessary that there should be some witness called to testify to the precise fact which you are asked to find. It often becomes the duty of the jury, in dealing with a case, to find that a certain thing took place and that a certain thing occurred, a certain thing was done, from evidence of circumstances going before that thing, following after and surrounding it, which naturally and reasonably point to the conclusion that the thing in question or the act in question took place. That is, they may reach the conclusion, as an inference from other facts proved to their satisfaction, which seem in their minds to justify it. . . . So that, as the result of the whole matter, bearing in mind that the burden of proof is upon the plaintiff, it is for you to say whether the evidence satisfies you that this license was issued, and that there was this defect in the street, and that that defect was caused by the use which the Sacred Heart people made of the sidewalk under this license. If so, the plaintiff is entitled to a verdict. If you are not so satisfied, then the defendant is entitled to your verdict.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>