Volume 165 — Massachusetts Reports

<p>Two MOTIONS, filed by the plaintiff in the Superior Court, that issues to a jury be framed in two suits in equity, one brought to have a deed executed by the plaintiff declared void, and the other to have his written consent to his wife’s will declared void. The motions were heard together, and denied; and the plaintiff appealed to this court.</p>

<p>Loss of Life — Master and Servant — Due Care — Action.</p> <p>An action under the employers’ liability act, St. 1887, c. 270, as amended by St. 1892, c. 260, for causing the death of the plaintiff’s intestate after a period of conscious suffering, cannot be maintained if the plaintiff fails to sustain the burden of showing that his intestate, at the time he was injured, was in the exercise of due care.</p>

<p>Intoxicating Liquors—Evidence— Question for Jury.</p> <p>If, at the trial of a complaint for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors with intent to sell the same, there is evidence that the defendant had been seen about the premises from the day when he testified that he had sold out to another to the day which closed the period covered by the complaint, acting as he had done before the alleged sale, it is a question for the jury whether the sale was a pretence or whether he still owned and kept the place.</p> <p>If, at the trial of a complaint for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors with intent to sell the same, it does not appear whether the defendant was or was not present when two men came to the door with liquor and bottles of beer, it is for the jury to say from the description of what took place whether the manner in which the men came showed that they were accustomed to come there and deliver liquor and beer; and if they were so accustomed, that fact would have some tendency to prove that the place was kept for the illegal sale of intoxicating liquors.</p> <p>At the trial of a complaint for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors with intent to sell the same, evidence that a fortnight before the trial, which was about a month after the period covered by the complaint, a person to whom the defendant asserted that the entire stock in trade had been sold on the day which was the first day of the period covered by the complaint, directed an officer to arrest the defendant for attempting to take away a sewing-machine, which the purchaser claimed was a part of the stock in trade, has no legitimate tendency to prove that the sale was not a pretence, or that the defendant did not keep the place during the period covered by the complaint.</p>

<p>Intoxicating Liquor — Notice — Evidence.</p> <p>At the trial of a complaint for keeping and maintaining a certain tenement used for the illegal sale and illegal keeping for sale of intoxicating liquor, a police officer, who had testified to facts tending to show that the tenement was under the control of the defendant, and who with other officers had taken from the premises intoxicating liquor, was asked, on cross-examination, whether a copy of a notice issued under Pub. Sts. c. 100, § 34, by the clerk of the court to A., who was not the defendant, and to “all other persons claiming any interest ” in the liquor, describing it as having been seized at the house of A. and attested to by the officer, was in his handwriting. The defendant offered to prove that the copy was in the handwriting of the witness, and offered the copy in evidence to show ownership and to affect the evidence of the witness. The judge excluded the question, rejected the offer of proof, and excluded the copy. Held, that the defendant had no ground of exception.</p> <p>At the trial of a complaint for keeping and maintaining a certain tenement used for the illegal sale and illegal keeping for sale of intoxicating liquor, the contention of the defendant that there w;as no evidence that the officers had a search-warrant, and that he had a right to hide a bottle of liquor as they had no right to take it, cannot be maintained, there being no evidence that the search was without a warrant, or that he supposed this to be the case; and even if the officers had had no warrant to search the premises, this fact of itself was immaterial.</p>

<p>Indictment, in two counts, the first of which alleged that the defendant Noble, on April 30, 1895, 66 did use a certain instrument, the name of which instrument is to the jurors aforesaid unknown, by then and there forcing and thrusting the instrument aforesaid into the body and womb of a certain woman whose name was Laura A. Atwood, with intent thereby then and there to cause and procure the miscarriage of the said Laura A. Atwood,” whereof she died; and the second of which charged the defendant Kelley with being an accessory before the fact.</p> <p>At the trial in the Superior Court, before Braley, J., the defendant Noble pleaded not guilty, and the defendant Kelley pleaded nolo contendere ; and the plea of Kelley was accepted by the District Attorney.</p> <p>The defendant Kelley, called by the government as a witness, testified that Laura A. Atwood was pregnant by him, and had been about four months, when they went to the office of the defendant, where an abortion was performed on her, and he described the operation as follows.</p> <p>He placed her in a chair with some iron rests under her feet with loops to hold the feet. He took a hollow instrument which was sort of funnel-shaped at one end and put it into her womb. He took some rubber tube out of a drawer, cut a piece off and fastened it with a string to a bunch of cotton. He also took out an instrument something like a poker, only it was not bent at the end straight like a poker, but was curved (witness indicating with his hand how it was curved). He put the rubber tube and cotton into the hollow instrument he had put in her and then took the poker-shaped instrument, pushed it in behind the cotton, then pulled it out, and took out the funnel-shaped instrument, and she got out of the chair. When he pushed the instrument in her she winced, and shut her mouth tightly as if in pain.</p> <p>The defendant told her to pull out the cotton and rubber tube when the pain became unbearable, and on May 2 Mrs. Clark, a sister of the deceased, at the request of Atwood, pulled out the cotton, string, and tube ; that it was bloody, and shortly after a mass came away from the womb, which Mrs. Clark burned. Said Atwood lingered until June 4th, when she died.</p> <p>On cross-examination Kelley was asked, by the counsel for the defendant Noble, if he had testified before the grand jury the same as he had testified at the trial, and Kelley answered, “ Yes.”</p> <p>At the close of the evidence, and before the arguments, the defendant Noble moved to dismiss the indictment, for the reason that there was a variance between the allegation therein and the proof, the indictment alleging that the name of the instrument was to the jurors unknown, whereas the proof was that the name of the instrument and a more particular description of it were known to the grand jurors through the testimony of Kelley.</p> <p>The judge overruled the motion, and the defendant Noble excepted.</p> <p>The case was submitted to the jury, with full and proper instructions to which no exception was taken. Among other things the judge instructed the jury fully as to the grand jury charging the instrument being unknown at the time of finding the indictment, and that if they found a variance under such allegation they must return a verdict of not guilty by reason of such variance.</p> <p>The jury returned' a verdict of guilty; and the defendant Noble alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. At the trial in the Superior Court, before Lilley, J., it appeared that, while the plaintiff was driving the defendant’s horse, the back strap of the harness broke and the rear portion of the harness fell upon the horse’s heels, which caused him to kick and inflict the injuries complained of.

Complaint, for unlawfully keeping intoxicating liquor with intent unlawfully to sell the same, at Lynn, on December 8, 1894. At the trial in the Superior Court, before Braley, J., the jury returned a verdict of guilty, and the defendant alleged exceptions, in substance as follows.

Coktbaot, for breach of the covenant against encumbrances in a deed of land in Bradford, given by the defendant to the plaintiff, on May 31, 1890. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, in substance as follows.

<p>Trespass upon Land — Passageway — Ruling.</p> <p>In an action for trespass upon land, it appeared that the land and a dwelling-house thereon were partitioned between the parties as tenants in common by commissioners, whose report described a way from a street to be used in common by both as a “ passageway six feet wide along the back of the house.” There was no evidence tending to show that before the partition there had been a similar way there which had been used both for foot travel and carriage travel, or that after the partition the parties had actually used it in that manner, but there was evidence tending to show the driving of teams generally on the land for some distance in the rear of the house. It also appeared that the width of teams varies from five and a half to seven feet. Prom the report of the commissioners and a plan of the premises it further appeared that the passageway went by the back door of the house and two feet beyond the cellar door, in both of which the parties had common rights. The judge ruled that the passageway was a footway, and 'was not designed for a carriageway. Held, that the ruling was right.</p>

<p>Personal Injuries — Street Railway — Due Care — Negligence — Law and Fact — Evidence — Trial.</p> <p>In an action against a street railway corporation for personal injuries occasioned to the plaintiff, who was seventy-nine years old, blind in one eye, and partially deaf in one ear, by a collision with an electric car while driving a horse attached to a wagon diagonally over the railway track in crossing from one side of the street 'to the other, he testified that he did not see the car, although he looked both ways before he entered upon the track, and that he did not hear the gong on the car sounded; and he introduced evidence tending to show that the car was running at a high rate of speed. The defendant’s evidence tended to show that the car was only ten or twelve feet away when the plaintiff drove upon the track ; that the gong was sounded repeatedly before, the collision; that the plaintiff did not seem to heed the ringing of the gong; and that the car was running at the ordinary rate of speed, which was from four to six miles an hour. Held, that the questions of the plaintiff’s due care and of the defendant’s negligenpe were for the jury.</p> <p>A man nearly eighty years old, blind in one eye and partially deaf, has a right to drive unattended a horse attached to a wagon upon a street in a city on which an electric railway runs, and to enter upon the railway in attempting to cross from one side of the street to the other, but in so doing he must use a degree of care and caution commensurate with the circumstances of the case.</p> <p>There is no absolute rule of law that a person driving along a street in a city must look and listen for an approaching car before entering upon the tracks of an electric railway.</p> <p>It is in the discretion of the judge presiding at a trial to permit a witness for the plaintiff to be recalled at the close of the evidence for the defendant.</p> <p>In an action against a street railway corporation for personal injuries occasioned to the plaintiff by a collision with an electric car, if the defendant’s witnesses have testified that the car, at the time of the accident, was going at the usual rate of speed, a witness for the plaintiff, who has been recalled at the close of the evidence for the defendant, may testify what that rate was, if there was a usual rate and he knew what it was.</p>

<p>Indictment, alleging that George McCarty, Edward Acton, and Peter La Chance, at Fall River, on January 31, 1895, “in and upon one Catherine Webb, otherwise called Catherine E. Webb, violently and feloniously did make an assault, with intent her, the said Catherine Webb, otherwise called as aforesaid, then and there, by force and against her will, violently and feloniously to ravish and carnally know.”</p> <p>Trial in the Superior Court, before Sheldon, J., who overruled the defendant’s motion, made before the jury were empanelled, to quash the indictment, on the grounds that it was bad for duplicity, for misjoinder of defendants, and for uncertainty.</p> <p>The jury returned a verdict of guilty of simple assault against McCarty and Acton; and the latter alleged exceptions.</p>

<p>Complaint, alleging that the defendant, on July 21, 1894, “ did have in his custody and possession a certain quantity, that is to say one pint, of milk not of good standard quality, that is to say milk containing less than thirteen per cent of milk solids, with intent then and there unlawfully to sell the same within . this Commonwealth.” At the trial in the Superior Court, before Q-askill, J., there was evidence tending to show that on the day named in the complaint one James Gollinger, who was then and there in the employ of the defendant and engaged in his service, had in his custody and possession at Lynn a certain quantity of milk not of good standard quality, that is to say, one pint of milk containing less than thirteen per cent of milk solids, with intent on the part of Gollinger and of the defendant then and there unlawfully to sell the same within the Commonwealth ; that the defendant was a producer of the milk in questian, and was at his farm in Beverly at the time of the seizure; that the milk was seized by an inspector of milk from the possession of Gollinger, and that a sealed sample of the milk was given to and accepted by the defendant.</p> <p>The defendant requested the judge to rule as follows :</p> <p>“1. That there was a variance between the complaint and the proof, in that the complaint alleged that the defendant £ did have in his custody and possession a certain quantity,’ etc., while the evidence showed that the milk was in the custody and possession of the defendant’s servant or agent, and that the allegation should have set forth that fact. 2. That the evidence would not warrant a verdict of guilty.”</p> <p>The judge refused so to rule, and submitted the case to the jury, with appropriate instructions, that were not excepted to.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Complaint, under St. 1887, c. 448, § 2, to the Police Court of Brockton, charging the defendants with being present where gaming implements were found.

Tort, for injuries occasioned to the horse and buggy of the plaintiff by a collision with a horse and carriage driven by the defendant. At the trial in the Superior Court, without a jury, before Braley, J., the plaintiff was asked by his counsel what was the value of his horse before the accident, and what was the value of his carriage.

<p>Homicide— Trial—Influence of Liquor as Excuse for Crime — Extreme Atrocity or Cruelty.</p> <p>An hysterical outbreak of a mother, while on the stand as a witness at the trial of an indictment against a third person for the murder of her child, in which she accuses him of the crime, but not in response to any question, is not sufficient ground for stopping the trial, and the jury, in the charge to them, having been fully cautioned to disregard the accusation by the witness, the defendant is afforded no ground of exception.</p> <p>The mere fact that a person is slightly under the influence of liquor is no legal excuse for crime, even though the liquor was taken involuntarily.</p> <p>A murder committed with malice aforethought may be found to have been committed with extreme atrocity or cruelty, although the murderer did not know that his act was extremely atrocious or cruel.</p>

Indictment, in four counts, under Pub. Sts. c. 207, § 9, for an attempt to procure the miscarriage of a certain woman, by reason of which she died. At the trial in the Superior Court, before Hopkins, J., before the jury were empanelled, the defendant moved the court to examine the jurors, with a view to a challenge, with reference to their bias or prejudice, and asked that the following questions might be put to them: “1.

Complaint, for keeping and maintaining at Fall River a common nuisance, to wit, a tenement used for the illegal sale and illegal keeping of intoxicating liquors between July 1, 1894, and November 6, 1894. Trial in the Superior Court, before Sheldon, J., who allowed a bill of exceptions, in substance as follows.

<p>Rape — Statute — Constitutional Law — Knowledge of Age of Consent.</p> <p>Under St. 1893, c. 466, entitled “ An Act relative to the punishment for rape,” one may be convicted for an assault with an intent to commit rape upon a female child under the age of sixteen years if she consents so far as she is capable of consenting.</p> <p>The St. of 1893, c. 466, entitled “ An Act relative to the punishment for rape,” is not unconstitutional on the ground that it prescribes a cruel and unusual punishment.</p> <p>On the trial of an indictment for rape, under St. 1893, c. 466, the defendant has no ground of exception to a refusal to instruct the jury that unless the defendant knew or had good reason to believe that the girl was under sixteen years of age he could not be convicted.</p>

<p>Personal Injuries — Master and Servant—Negligence — Due Care — Assumption of Risk — Instructions — Evidence.</p> <p>In an action for personal injuries occasioned to the plaintiff, while employed in the defendant’s mine, by a large piece of overhanging rock falling upon him, evidence that the defendant’s superintendent, for whose negligence it was agreed that the defendant was liable, knew of this loose stone before he told the plaintiff to work there, and that he made an unsuccessful attempt to dislodge it, will. warrant the jury in finding that the superintendent was negligent.</p> <p>In an action for personal injuries occasioned to the plaintiff, while employed in the defendant’s mine, by a large piece of overhanging rock falling upon him, he testified that the superintendent told him where to go to work, and, in reply to the question whether the wall of the rock above was all right, said, “ Yes, it is all right, — we tried to bar down some rock and it would not come ”; and that there was smoke there from a blast, so that he and his companions could hardly see their work, which was drilling; and it appeared that the only light which they had was from oil lamps carried in their hats. Held, that the questions whether the plaintiff was reasonably careful in working where he did at the time of the accident, and whether he assumed the risk of the accident, were for the jury.</p> <p>If, at the trial of an action for personal injuries, instructions requested by the defendant and refused are, so far as they embody correct propositions of law, covered by the instructions given, and the jury could not have failed to understand the application of these principles to the facts hypothetically stated in the requests, the defendant shows no ground of exception.</p> <p>In giving some of the instructions requested by the defendant, at the trial of an action for personal injuries, which relate to the evidence relied upon by him, the judge is right in referring to other evidence of what was said or done by the defendant which properly might affect the plaintiff’s conduct, and, if the terms in which these references are made could not have misled the jury, the defend ant has no ground of exception.</p> <p>At the trial of an action for personal injuries occasioned to the plaintiff, while employed in the defendant’s mine, by a large piece of overhanging rock falling upon him, evidence of witnesses, who were employed with the plaintiff, that, after blasting on the night before the accident, a piece,of loose rock hanging above the place where they were working was discovered, and the men did no more work that night, is competent.</p> <p>The refusal, in an action for personal injuries occasioned to the plaintiff while employed in the defendant’s mine, to admit evidence of a direction given by the superintendent to the foreman of the gang, affords the defendant no ground of exception, there being no offer to show that anything was done under the direction, and it not appearing that the direction had any reference to the safety of the place.</p> <p>In an action for personal injuries occasioned to the plaintiff, while employed in the defendant’s mine, by a large piece of overhanging rock falling upon him, the defendant’s superintendent, while testifying as a witness, was permitted to show all the facts and conditions from which the duty of the workmen would appear, and answered without objection the question what would be the duty of a miner if he found a piece of loose ground over the top bench of rock, and lie introduced the written contract under which A., a fellow servant of the plaintiff, was working. Held, that the defendant had no. ground of complaint because the witness was not permitted to testify what A.’s duty was under the circumstances above stated.</p> <p>It is not competent for the defendant, in an action for personal injuries occasioned to the plaintiff while employed in the defendant’s mine, to show that no accident had ever before happened in the mine.</p> <p>After one party to an action has introduced in evidence a portion of the affidavit of a witness, the other party is rightly permitted to read the next sentence, which tends to qualify that which precedes it.</p>

<p>Bill in equity, filed in the Superior Court on December 18, 1894, 'by the executrix of the will of Reuben Champion, to compel the defendant, as trustee under the. will of Warren McFarland, to deliver and surrender to her a certain policy of insurance on the life oi Reuben Champion. Hearing before Maynard, J., who reported the case for the determination of this court, in substance as follows.</p> <p>Reuben Champion, who was the husband of the plaintiff, took out a certain policy of insurance on his life for the sum of $1,000, payable on his death to the plaintiff in her own right, in the State Mutual Life Assurance Company.</p> <p>Champion died testate on or about February 15, 1894. At the time of his death the policy was a valid and subsisting policy of insurance, on which the sum of $1,000 was thereupon due and payable to such person as is found upon this proceeding to be lawfully entitled thereto.</p> <p>The defendant has now in his possession the policy of insuranee. The plaintiff made due demand upon the defendant to deliver the policy to her, and the defendant, through his authorized agents and attorneys, before the filing of the plaintiff’s bill, refused to deliver the policy to the plaintiff, or to inform her where or in whose custody it was.</p> <p>On December 15, 1870, the plaintiff and Reuben Champion executed and delivered to the defendant’s testator, Warren McFarland, a transfer and assignment of the policy of insurance in the following language:</p> <p>“ For value received of Warren McFarland, we hereby transfer and assign to him the policy of life assurance within written, with all the privileges and benefits secured to Martha E. Champion thereby, as collateral security for the amount of his demands subsisting against Reuben Champion at his decease, as creditor or as surety, the balance if any for the benefit of said Martha E. Champion.”</p> <p>The assignment was duly accepted, and recorded upon the books of the insurance company. Mo question was made as to the validity of this assignment.</p> <p>On December 16, 1870, Reuben Champion made a promissory note for $330, payable on demand to the order of McFarland; and, on February 8, 1871, Champion made another promissory note for $500, payable on demand to McFarland or his order.</p> <p>The note for $500 is still unpaid, unless the facts found and stated herein operate as payment or extinguishment of the note. After the making of these notes, Champion was duly adjudged a bankrupt by proceedings under the bankruptcy laws then in force; and under such proceedings he received a full discharge of his then existing debts and liabilities, on March 18, 1876. The above notes were due and provable in bankruptcy against him.</p> <p>The defendant’s testator proved against Champion, in such bankruptcy proceedings, the note for $330, for which the testator held, at the time of such proof, the policy of insurance as security, by virtue of the assignment above mentioned. The testator, when making proof of his claim against Champion in the bankruptcy proceedings, did not surrender for the benefit of the bankrupt’s estate or creditors the policy of insurance, or release or assign for the benefit of the bankrupt’s estate or creditors the policy, or the testator’s interest therein j but the testator did, in his proof of claim, make oath that “ for which said sum of $298.29 and interest as aforesaid, (which was the balance due on the note proved, deducting the sum of $125.34, the amount of a debt due from McFarland to Champion,) or any part thereof, this deponent says he has not, nor has any person by his order, or to this deponent’s knowledge or belief, for his use, had or received any manner of satisfaction or security whatsoever. ”</p> <p>The defendant’s testator signed his assent to the discharge of Champion.</p> <p>A decree was entered dismissing the bill. If the decree was erroneous, it was to be set aside, and the case remanded to the Superior Court for such further decree as this court might order; otherwise, the decree was to be affirmed.</p>

<p>Contract. The .declaration was as follows: “ The plaintiff says that on or about the second day of June last he was the holder and owner of two certain mortgages, one given by one Louis Picard on certain personal property then in a store No. 66 East Main Street, Fall River, the other given by Mary Picard on certain real estate situate in said Fall River, and both said mortgages having been given to secure the payment of two certain notes of $ 1135.00, the principal of which notes amounted to $863.20 at said date ; that on or about said date, in consideration that the plaintiff release the said Louis and Mary Picard from the said notes and debt secured by said mortgages, the defendant agreed with the plaintiff to pay him said amount of $863.20 in the manner following, namely, $263.20 cash at that date, and also at said date $600 by note payable in weekly instalments of $10, with interest; and in consequence of said agreement on or about said second day of June last the plaintiff did release the said Louis and Mary Picard from said debt and notes, but the defendant has neglected and refused to make his payments as aforesaid, and to give bis note as aforesaid, although often requested by the plaintiff so to do, to the great damage of the plaintiff.” The answer contained a general denial, and also set up the statute of frauds.</p> <p>Trial in the Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff, a practising physician in Fall River, formerly owned in partnership with one Louis Picard the stock and fixturcs in a drug store No. 66 East Main Street in Fall River. The plaintiff sold his interest in the store to Picard, and took a note therefor from Picard, on which $863.20 was due on June 2, 1894, which was secured by a mortgage on the stock and fixturcs of the drug store, and by a note and mortgage on real estate in Fall River from one Mary Picard.</p> <p>The plaintiff testified that he was the defendant’s family doctor; that the defendant came to him on the first day of June to consult him about some medicine, and said he wanted to buy Picard’s store; that Picard wanted $1,000 for it; that it was his intention to pay Picard the balance over the mortgage, and then he would have only to deal with the plaintiff; that the next morning Picard and the defendant came together to the plaintiff’s office ; that Picard said he had sold the store to the defendant for $1,000, and the defendant had given him ten dollars the evening before to bind the bargain; that the defendant agreed to pay Picard the balance of the $1,000 over the amount due on the mortgage note; that he would pay the plaintiff $263.20 in cash and give a note for $600 payable in weekly instalments of ten dollars; that he would give the plaintiff a mortgage on the drug store to secure the $600 note, and also a mortgage on real estate for the same purpose; that if he did not pay the $263.20 in cash, he would give a note for it indorsed by one Murphy ; that Picard asked the plaintiff to release him and take the defendant in his place, and the plaintiff said, “ Yes, by this agreement I will take Poutre in place of you ” : that after that the plaintiff, the defendant, and Picard went to the law office of Edward Higginson and asked Mr. Higginson “ to pass a bill of sale ”; that Mr. Higginson “ passed the bill of sale ” ; the defendant gave the plaintiff a mortgage on the drug store for the sum of $600, and a note of that amount to be paid in sums of ten dollars a week; that, before leaving the office, the plaintiff signed discharges drawn up by Mr. Higginson on each of the mortgages which he had from Picard and his wife; and that then the plaintiff, the defendant, and Picard left the office together, leaving all the papers there, and Picard asked the defendant for his money, which he paid.</p> <p>The plaintiff further testified as follows : “ I saw the defendant the second day after that, and asked him for my money, and he said, ‘ No, I want to wait until I get my transfer.’ I told him I had nothing to do with the transfer. He kept coming about two or three days a week to my place, and almost every time I asked him for my money, and he put me always off. He was always telling me that he was waiting for the transfer that Picard promised to get for him. I told him that I had nothing to do with that; that if Mr. Picard promised the transfer, it was none of my business. I.told him that he made me discharge Picard, and he was responsible for it.”</p> <p>The plaintiff also testified that he got the Picard mortgages back from Mr. Higginson twice ; that the first time he took them on a promise to Mr. Higginson to return them, showed them to his counsel, and returned them to Mr. Higginson ; and that they remained with Mr. Higginson until July 14, when he went with Picard to Mr. Higginson’s, took these mortgages, and gave a receipt for them.</p> <p>The plaintiff offered evidence to show that Picard at that time, the defendant not being present, but the plaintiff being present, asked Mr. Higginson to give him these mortgages, with the discharges written and signed on them. Upon the defendant’s objection, the judge excluded the evidence; and the plaintiff excepted. The plaintiff was further asked, “ What was the reason you took these papers ? ” which question, upon the defendant’s objection, was excluded; and the plaintiff excepted.</p> <p>On cross-examination, the plaintiff testified that, after signing the releases, he left them with Mr. Higginson from the day they were signed until July 14, with the single exception that the plaintiff obtained them one day to show them to his attorney and that was all he did with them on that day, and that all the papers were left with Mr. Higginson ; that, on the first day when he saw the defendant, the plaintiff told him that he wanted some money, and that he wanted security for the rest; that, on the next day, when the defendant and Picard saw the plaintiff, Picard asked the plaintiff if he would take the defendant to replace Picard, and the plaintiff said, “ Yes, as long as I have security for my money, I don’t care who will pay me ”; that Picard said then, “You will discharge me and take Poutre in my place? ” and the plaintiff said, “ Yes, as long as he is willing to do what he stated,” and the defendant said it was all right; that the plaintiff said that he would agree to the payment by the defendant of $263.20, either in cash or by his note indorsed by one Murphy, and as to the balance that the defendant was to give him as security for the $600 a mortgage on his drug store and a mortgage on his real estate, and the defendant said he would give him that security; that at last the defendant said that he would rather give the plaintiff a note indorsed by Murphy for the $263.20, and the plaintiff said it was all right as long as he would be secured for his money; that Picard said, “Yon will discharge me and my wife ? ” and the plaintiff said, “ Yes, I will take Poutre to replace you, as long as Poutre will fulfil what he said now” ; and that the defendant said it was all right, that he gave his word and it was all right.</p> <p>Picard testified that the defendant, about June 1, 1894, came to him to buy the drug store; that he agreed with the defendant on the price, which was to be $1,000; that the defendant gave him ten dollars to bind the bargain ; that he said to the defendant, “ I cannot make a bargain that way, because Dr. Trudeau has a mortgage ; we will have to see him first; I cannot make any bargain alone ”; that they agreed to see the plaintiff in the morning; that they saw him the next morning; and that he told the plaintiff, in the presence of the defendant, that he had sold his place to the defendant for $1,000.</p> <p>The witness further testified as follows: “ I said,1 Will you ' take Poutre in my place for payment ? ’ Poutre was there; I asked him if he wanted to take Poutre in my place and relieve me. He says, ‘ Any of you, as long as you pay me, will be good.’ So I told the bargain to the doctor and then made the bargain in the presence of the doctor and Poutre. I told him (defendant) I wanted money — cash — for my part; it was very little, and I wanted it. He said, ‘ Doctor, will you take that $263.20 cash, and then so much a month ? ’ The doctor says, ‘ Yes, it will be $10 ; pay him $263.20 cash, and $10 a month, and give him security, and it will be all right.’ We went to Mr. Higginson after that; I told Mr. Higginson that I had sold my drug store to Poutre. . . . After that they made the papers. . . . When we were downstairs I said, ‘Look here, I want my money.’ Poutre said, ‘ Would there be any objection to my transfer ? ’ I said, ‘ I don’t see none, I am sure there will be no objection against me and my man.’ He says, ‘ That will be all right then.’ So he gave me my money.”</p> <p>There was no evidence other than such as herein appears of any delivery or tender by the plaintiff, or any one in his behalf, of the Picard mortgage on the stock and fixtures of the drug store with the release thereof, or of Picard’s note secured thereby, to either Picard or the defendant; nor of any authority from the plaintiff to Mr. Higginson to deliver the Picard mortgage with the release thereof, or the note secured thereby, to either Picard or the defendant; nor that the defendant gave Mr. Higginson any authority to receive the Picard mortgage with the release thereof, or the note secured thereby, from the plaintiff for the defendant; nor that Picard gave Mr. Higginson any authority to receive his mortgage with the release thereof, or the note secured thereby, from the plaintiff for Picard.</p> <p>At the close of the plaintiff’s evidence, at the request of the defendant and against the plaintiff’s objection, the judge directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Petition to the Superior Court, for a jury to assess damages for the taking, on June 26, 1891, of land in that part of Boston called Dorchester for a public park, by the Park Commissioners of the city of Boston, under St. 1875, c. 185. At the trial, before Richardson, J., the jury returned a verdict for the petitioners; and they alleged exceptions, which appear in the opinion.</p>

<p>Contract, upon an account annexed, to recover a balance of $114 for “ labor and services in putting in gas plant at Rock-land, Maine, from February 12 to April 7, 1894.” Answer: 1. A general denial. 2. That the defendant “ never employed the plaintiff tó perform any work whatever.” Trial in the Superior Court, before Mason, C. J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that he performed labor in putting in a gas plant in Rockland, Maine; that one Rowe employed him; that he asked Rowe whom it was for, and he said for the defendant; that the plaintiff went to Rockland on February 12, 1894 ; that he first saw the defendant at the cars, and the latter told him “ to go ahead, — go down and do the best you can, and I will see that you come out all right ” ; that he went to work in Rockland the next morning, and worked until March 21, when the defendant came there, and he asked him, “ Did you send my wife any money yet ? ” and he said, “ No ”; that the plain tiff then said, “ I am going home in the morning then ” ; that the defendant told him he wanted him to run that afternoon, and the plaintiff told him he would not, and said he wanted to see where his money was coming from before he ran ; that the defendant said, “ If you go to work, I will pay you what is due you, and see that you receive it in the future.”</p> <p>The plaintiff further testified as follows : “ He asked me then what it was. I told him $84 was the balance, at $20 a week. He says, ‘ I ain’t got much money with me, but I will give you five dollars,’ and he paid me five dollars. He asked me what was due, and I told him $84. He says, ‘ Do you want your wife to receive it all?’ I says, ‘ No, I want enough to clear me down here,’ and he said, 11 will send the balance to your wife.’ He then gave me the five dollars, and said, ‘ Just as soon as I get home, I will send you enough to clear you here, and send the balance to your wife,’ and repeated it over. Then I told him on those conditions I would stay, and no other. Then I said to him, ‘ Is Mr. Ricker coming down ? ’ He said, ¡ He said he was coming down here, but I don’t see what good he can do down here. I will tell him to wait till I get home.’ He spoke out to me and said, 1 Go ahead, and wait until I get back.’ ”</p> <p>The plaintiff also testified that he was employed there eight weeks in all; that he quit work because parties concerned in the acceptance of .the plant refused to have anything more to do with the gas; that they stopped the running of the plant and he had to stop with it; that the amount then due was $160; that he received on account of it the sum of $51; that there was $109 due instead of $114; and that he had never received any part of that balance.</p> <p>On cross-examination, he testified that, previously to February 12, he was working for the Wilder Gas Company ; that Rowe, the man who told him to go to Rockland, was supposed to be the superintendent of the Wilder Gas Company; that he was given to understand, the week previously to his going to Rockland, by Dr. Wilder, when he was paid his wages, that that was the last money he would receive; that he saw Wilder the morning he went to Rockland, but that he gave him no instructions; that he received his instructions from the defendant; that he gave him a letter and told him to give it to Ricker, and said, “ Do the best you can, and I will see that you come out all right ” ; that was all the instruction he had; that his wages, when employed by the Wilder Gas Company, were two dollars a day; that Rowe told him the wages he would receive at Rockland would be $20 a week ; and that the first money he received at Rockland was five dollars from Ricker, who made him in all four payments, amounting to $31.</p> <p>John Rowe, Jr., testified that he had been superintendent of the Wilder Gas Company Process for the last four or five years; that he engaged the plaintiff to go to Rockland; that he was expected to go down, but was taken sick; that he sent for the plaintiff and told him that he was to go down; that the plaintiff wanted to know what the price would be, and he told him he was to get $20 a week and he was to pay his own expenses ; that it was understood by the witness and by the plaintiff that the defendant was to pay ; that he told the plaintiff that the defendant was to pay him; and that the defendant wanted the witness to go to Rockland, and advanced some money for him to go with.</p> <p>The witness further testified as follows: “ I told the defendant that the plaintiff had n’t his pay and needed it; he said, 11 have given Mr. Ricker sufficient to pay all labor bills, and I will look into it to see why it was n’t done,’ but had no further talk about the plaintiff. I met the defendant at Rockland; he came to Rockland and wanted the plant run so a gentleman he had brought with him could see it; the plant was not running at that time; it had been running, and had stopped for the day. The defendant wanted to know if we could get steam up for that afternoon. I told him the plaintiff had left, and it would require two to do it, and he said, ‘ Find him.’ I found him, and we went to the works. The plaintiff then told the defendant he would not go to work until he paid him for what he had done and what he was told to do, and the defendant said, 1 Go to work; I will pay you.’ . . . The talk between the plaintiff and the defendant in my presence was that he was to pay for what he had done and for the future, and to keep on. The plaintiff said he would not work any more unless he could get his pay. He said, ‘ I will pay you for the past and pay you for the future if you will keep at work.’ The plaintiff said, 1 All right, I will go to work.’ ”</p> <p>On cross-examination, the witness testified that he employed the plaintiff to go to Rockland, as he had employed others.; that his relation to the Rockland matter was “ supposed to be superintendent of construction for all plants that were put up ” ; that he was superintendent of the Process for the Wilder Gas Company. His examination was continued as follows:</p> <p>“ Q. As superintendent of the Wilder Gas Company you employed the plaintiff to go to Rockland; is not that so ? A. I cannot say it was the Wilder Gas Company because I do not think — yes, it was a company.</p> <p>“ Q. You were superintendent for somebody? A. According to my agreement I was superintendent for L. A. & C. H. Wilder.</p> <p>“ Q. And by virtue of that agreement you employed the plaintiff ? A. Yes, since my connection with the Process.</p> <p>“ Q. Did you ever see the defendant in relation to the employment of the plaintiff? A. No, sir ; I was sick.</p> <p>“ Q. Did the defendant ever authorize you to employ the plaintiff to go to Rockland? A. No, sir.</p> <p>“ Q. You employed the plaintiff? A. I did; told him he was to be paid by the defendant.</p> <p>“ Q. Without authority from the defendant? A. No, not personally from him.”</p> <p>The defendant testified that he was a manufacturer and dealer in shoe machinery; that he saw the plaintiff on the morning of February 12, but had no extended conversation with him; that he said to him, “ Do the best you can” ; that he did not employ him to go to Rockland ; that he had no interest in this business; that he went to Rockland on March 21 to inspect the plant, in company with one Averill, who was acting in the interest of a party of gentlemen ; that he did not have the conversation with the plaintiff at Rockland, as testified to by him ; that Ricker was in no way acting for the defendant or in his interest; and that he had no interest in the Wilder Gas Process nor any privileges in it, nor any contract with anybody that he was to put up that plant, nor any understanding in regard to it.</p> <p>Luke A. Wilder testified that he knew the plaintiff; that he was employed by the Wilder Gas Company from February 12 to April 9, 1894; that.he had no remembrance of any conversation with the plaintiff to the effect that the Wilder Gas Com-pony would pay him no more money; that the plaintiff went to Rockland at the suggestion and wish of the witness; that the witness instructed him in regard to his duties at Rockland and paid his fare to Rockland; and that nothing was said about his wages at Rockland.</p> <p>Oliver P. Ricker testified that in February, 1894, lie undertook to put in a plant at Rockland under a contract with people there ; that the plaintiff worked on this plant; that the defendant had nothing to do with it in any way; that he paid the plaintiff some money for the reason that he had sent to the company for money and failed to get it, and had nothing to pay his board with; that the plant was furnished by the Wilder Gas Company; and that the plaintiff’s occupation at Rockland was to put the plant in order to run.</p> <p>At the close of the evidence, the defendant requested the judge to instruct the jury as follows :</p> <p>“1. Upon all the evidence the plaintiff is not entitled to recover in this action, and the verdict must be for the defendant.</p> <p>“ 2. If the Wilder Gas Company or L. A. Wilder still remains liable to the plaintiff for the labor performed at Rockland, then the defendant is not liable.”</p> <p>The judge refused to instruct the jury as requested, but instructed them as follows :</p> <p>“ Upon the pleadings as this case stands, and upon the evidence that has been introduced in it, there can be no recovery against the defendant for the debt of the Wilder Gas Company. If the Wilder Gas Company employed the plaintiff, and the services in question were rendered for the Wilder Gas Company, there can be no recovery in this case.</p> <p>“Now the plaintiff contends that, although he had been at work for the Wilder Gas Company when this matter of going to Rockland came up, he was employed by Rowe to go to Rock-land for the defendant, and, although it is stated now that Rowe had not then authority to make that contract for the defendant, it is claimed that the defendant’s conduct ratified that act of Rowe and made it binding upon him; and it is such an act on the part of an agent to act for him as can be ratified, if it was not in fact ratified by him. If his conduct after that showed that he expressly ratified the act of Rowe, or gave this plaintiff tp understand that he ratified it, then he was just as much bound by it as though Rowe had a power of attorney under seal. Now it is contended that, although he may not have given Rowe the authority, and although he may not have, in terms and by explicit words or by explicit action, ratified the agreement which Rowe made in his behalf, that still service was rendered for him, and thus, by application of law, he must pay a reasonable sum.</p> <p>“ Now, if the evidence satisfies you that this service was rendered for the defendant, then he must pay for it ,• if he ratified the agreement of Rowe, he must pay for it upon the special agreement that Rowe made. Otherwise, he must pay what it is shown to be reasonably worth, not exceeding the amount claimed, $20 a week. The claim on the part of the plaintiff is that, although he had been receiving $12 a week for work of a similar character done under different conditions when at home, when he went out to a distant place to take charge of the work and be responsible directly for it, to perform it under a different state of things, being obliged to be away from home and at the expense of board, that $20 a week charged is not beyond what it is reasonably worth even measured by what had been paid him for services of the same character performed under different conditions. But that is a question for you. The question is simply this. If he. made a special contract, which it is claimed was made through Rowe and ratified subsequently by the defendant, to pay $20, then it is of no consequence whether it was worth $20 or not, or whether it was worth many times $20, that is all he could have. But if he did not make a special contract, but did perform the service for the defendant, then he is to have what it is worth, not exceeding the amount claimed in the declaration.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff, while a passenger on the defendant’s railroad, by the alleged negligence of the defendant.

<p>Poor Debtor Hearing — Defective Service of Notice.</p> <p>The provisions of Pub. Sts. c. 162, § 28, by implication put upon the debtor the duty of furnishing to the court or magistrate such evidence of the service of the notice as will make it the duty of the tribunal to take jurisdiction and conduct an examination, if the creditor desires to examine, or administer the oath for the relief of poor debtors if there is no examination; and if the debtor fails to furnish proof of service, judgment will be entered for the plaintiff.</p>

<p>Contract, to recover damages alleged to have been sustained by the plaintiff by the refusal of the building committee of the defendant town to award to him, as the lowest bidder therefor, the contract for the construction of a schoolhouse. Trial in the Superior Court, before Blodgett, J., who' allowed a bill of exceptions, in substance as follows.</p> <p>At a meeting of the defendant town, held on March 13,1893, it was “ Voted, that a committee of three be appointed by the chair to prepare, plans and specifications for an addition of four rooms to the Walnut Avenue School with hall above, and report at the April meeting.” There was evidence tending to show that the chairman of the meeting subsequently appointed as such committee D. D. Poole, Thomas P. Somes, and B. F. Flinn, and that they duly accepted the appointments and acted as such committee; that they forthwith, pursuant to the above vote, requested certain architects to prepare and present plans and specifications for their approval, and, on April 21,1893, accepted the plans presented by one A. W. Call, and employed him as architect for the town to complete the same for presentation, with the committee’s report, at the meeting of the town to be held on April 28; and that the committee made a report of its doings at the April meeting of the town, and presented at the meeting the plans and specifications which had been prepared by Call.</p> <p>At a meeting of the town held on April 28,1893, it was voted to accept and adopt the report of the committee, ánd to borrow a certain sum of money for enlarging the schoolhouse. It was also “ Voted, that the same committee carry the vote into effect, D. D. Poole, Thomas P. Somes, and B. F. Flinn.”</p> <p>There was evidence tending to show that the persons named in the votes of the April meeting were the same who had been appointed by the chairman under the vote at the March meeting of the town; that, subsequently to the April meeting, the persons named as its committee proceeded to further carry out the votes of the town; that they continued to employ Call as their architect, and directed him to prepare full plans and specifications for the construction of the schoolhouse, and to obtain bids for the work; that the committee had frequent meetings up to and including June 20,1893 ; that it accepted and adopted plans and specifications prepared by Call as architect; that one of the provisions, hereafter designated as “ Provision A,” put into the specifications by Call as such architect, was as follows: “ Eights reserved: The right to reject any or all proposals, or to waive defects, is reserved if it is deemed by the committee for the town’s best interest ”; that on or about June 7,1893, the plaintiff received from Flinn the following communication, signed by the latter: “ Plans for the new Walnut Avenue School addition will be ready next Monday at A. W. Call, architect, 25 Belling-ham avenue, Beachmont. All bids must be in by June 20 at 6 o’clock”; that, pursuant to the notice contained in the above communication, the plaintiff proceeded to Call’s office and examined the plans and specifications, and was requested by Call to furnish a bid only for the foundations of the building; that he and three others, at the request of Call, made bids therefor; that the committee refused to accept any bid for constructing the foundations, and asked for bidders to furnish bids for performing the entire construction of the schoolhouse according to the plans and specifications ; that the plaintiff was one of the bidders who was requested to furnish such bids; and that he thereupon said to Call that he would not make any further bid for the work unless “ Provision A ” should be waived, “if they will award it to the lowest bidder, I will figure the job.”</p> <p>The plaintiff testified that on or about June 8 or 9 he saw Flinn at his office, and asked him if the job was going to be let to the lowest bidder, and Flinn replied that it should be let to the lowest bidder; that afterwards he saw Call and reported to him the above conversation with Flinn; and that Call said to the plaintiff, “ I will see Mr. Poole for you if you can’t stop, and see what he says about it.” Call testified that the plaintiff asked him, before the plaintiff figured, if the job was to be let to the lowest bidder; that the plaintiff said he had seen the specifications, but that one of the committee had told him it was to be let to the lowest bidder; that the witness said to the plaintiff, “I should judge that they have waived the clause, then, and if you wish I will see Mr. Poole, the chairman, and find out definitely and let you know ” ; that he subsequently saw Poole, and informed him that the plaintiff had stated that he would not “ figure these plans ” unless the job was to be awarded to the lowest bidder; that he showed Poole the objectionable clause in the specifications, “ Provision A”; that Poole said, “ Tell Mr. Mnrdough to go ahead and figure, that it is all right, that the job shall be let to the lowest bidder”; and that Call so informed the plaintiff. The plaintiff testified that, being so informed, he thereupon went to work and made up his estimate; and that he relied on the above statement from Flinn, and that from Poole, communicated through Call to him, in making his bid for this job.</p> <p>There was also evidence tending to show that the committee subsequently had several meetings in regard to the construction of the schoolhouse; that they invited several contractors to figure; that three bids to do the work were received by Call as such architect, in separate sealed envelopes addressed to him, one of which was the plaintiff’s; that such bids were handed by him to Poole, at the latter’s request, at about seven o’clock in the evetoing of June 20; that thereafter, on the same evening, the committee held a meeting in Poole’s house, at which the three members of the committee were present, and they opened the bids, and then and there awarded the contract to one Graham, and ordered Call to prepare a form of contract, which he did, and the contract was subsequently executed between the committee, in behalf of the town, and Graham ; that the plaintiff’s bid was the lowest of all bids; that he was ready and able and willing to construct the building and perform the contract for the amount of his bid; that the building could have been constructed by the plaintiff at a substantial profit, and he was damaged by the rejection of his bid; and that the building was subsequently constructed under the direction of the committee, substantially according to the plans and specifications, under the contract with Graham.</p> <p>Upon the above evidence, the judge ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Petition, under Pub. Sts. c. 191, to enforce a mechanic’s lien against John H. Wetherell and Jacob H. McLeod.</p> <p>The case was submitted to the Superior Court, and, after judgment for the respondent, to this court, on appeal, upon agreed facts, in substance as follows.</p> <p>The respondent McLeod, who was a builder, made, early in 1893, a contract with the respondent Wetherell to build a dwelling-house for the latter, on his land described in the petition, for a fixed price, the inside finish of which was to be like that of a certain other house then owned by Wetherell. About July 1, 1893, McLeod made a verbal contract with the petitioners, who were manufacturers of fine finished lumber, by which they were to furnish and deliver to him at the first mentioned house all the floorings, sheathings, materials for stairs, and all other materials for interior wood finish, to be used in the construction of the house, all milled, turned, wrought, and otherwise prepared in the same shapes and forms as the finish used in Wetherell’s other house, for the sum of $534. Afterwards McLeod requested the petitioners to furnish and deliver to him at the first mentioned house, to be used in the construction thereof, other articles of wood-work, viz. certain specified wood columns, 450 ft. Scotia, one door frame and finish for one door, as set forth in their petition, all prepared in the shapes and forms for the purposes for which they were ordered. The petitioners, acting under their contract with McLeod and under his request, prepared the floorings, sheathings, and all other articles embraced in the contract and request, in the shapes and forms stipulated, out of their own lumber for said house, and delivered the same to McLeod at said house, and he afterwards applied them to the house, and they were all actually used in the construction thereof, although a considerable portion of them could have been used elsewhere than in the house. The contract did not require the petitioners to prepare the articles themselves; but all the labor performed and furnished as aforesaid by the petitioners in the preparation of the same for the house was done in their own mill and shops in Cambridge, away from the house and land, covering sixty-seven days, and was worth $263. The value of the last named articles of wood-work was $43.63. The amount still due the petitioners from McLeod under his contract with them, and for the last named articles of woodwork, was $374.15. The respondent McLeod was defaulted.</p> <p>If, on the foregoing facts, the petitioners were entitled to enforce a lien on the house and land for the labor performed and furnished by them as aforesaid, judgment was to be entered in their favor for $263, the value thereof, with interest from September 18,1893, the time of the filing of the petition, for their costs, and for the usual order of sale; otherwise, the petition was to be dismissed, and judgment entered for the respondent Wetherell for his costs.</p>

<p>Creditors’ Bill — Foreign Corporation — Equity Jurisdiction.</p> <p>To a foreign corporation having a place of business here and suing a citizen of another State, the courts of equity in this Commonwealth are not open as matter of strict right, but as matter of comity.</p> <p>If it appears, in a suit in equity in the nature of a creditors’ bill, brought by a foreign corporation having a place of business here against a citizen of another State, that complete justice cannot be done here, or that the amount involved is small, and the defendant will be subjected to great and unnecessary expense and inconvenience, and that the investigation required will be surrounded, if conducted here, with many and great if not insuperable difficulties, which will all be avoided without special hardships to the plaintiff if suit is brought against the defendant in the State where he lives and where the alleged debt was contracted, and where personal service can be made on him, our courts should decline to take jurisdiction.</p>

<p>Equity — Master’s Report — Decree.</p> <p>If a suit in equity is sent to a master, who reports that it was agreed before him that all the items in a book produced were correct as to dates and amounts, and that it was not disputed that there was a certain balance in the plaintiff’s favor, unless certain items were entered in such a way as to constitute a double charge against the defendant, and no exceptions are taken to the report, and the master’s explanation of the matter of the supposed double charge appears to this court to be correct, a decree for the amount found due by him in the plaintiff’s favor will be affirmed.</p>

<p>National Bank— Contract— Ultra Vires.</p> <p>A contract whereby a person is to furnish a national bank with a certain customer, in consideration of which and of the advantage and profit thereby to accrue to the bank it agrees to turn over to him a certain amount of fire insurance which would be greatly to his profit, is one not within the power of a national bank to make, and the bank may avail itself of the defence of ultra vires, if sued upon the contract.</p>

<p>■ Bill IN equity, filed in the Superior Court on September 20, 1889, alleging that the defendant, on September 12, 1871, made a promissory note for $2,300, payable on demand to the order of Joseph W. Smith, and secured by a mortgage of land in Lawrence, duly recorded, and which did not .contain .a power of sale; that, on February 7, 1889, Smith executed a deed of assignment of all his property, including said note and mortgage, to the plaintiff, for the benefit of the creditors of Smith; and that the plaintiff had demanded of the defendant payment of said sum of $2,300, and of the interest thereon, but the defendant had refused to pay the same. The prayer of the bill was that the land conveyed by the mortgage might be sold under the direction of the court, and the proceeds of the sale applied to the payment of said $2,300 and interest, and for general relief. The defendant demurred to the bill, for want of equity. The demurrer was sustained, and the bill dismissed; and the plaintiff appealed to this court.</p>

<p> Contract by A. to pay B. for becoming a Director in a Corporation not void as against Public Policy. </p> <p>An open contract by A. to give B. for becoming a director in a street railway company a stated number of shares of its stock is not unlawful as against public policy if it appears that A. owned or represented all the shares, that B. took his office unhampered, and that A.’s inducement to make the bargain lay wholly in the local importance of B., the strength which it would give the company to have B. connected with it, and a legitimate expectation of help in carrying out plans of consolidation and extension from B.’s known views.</p>

<p>Conversion—Conditional Sale of 11 Furniture or other Household Effects" — Piano — Statute — Waiver— License — Instructions.</p> <p>The St. 1884, c. 313, concerning conditional sales of “ furniture or other household effects,” applies to a piano.</p> <p>At the trial of an action for conversion of a piano, delivered to the plaintiff under a contract of conditional sale and taken possession of by the defendant upon a default in payment by the plaintiff, if the defendant testifies that he mailed a copy of the contract to the plaintiff, as required by St. 1884, c. 313, § 1, and the plaintiff testifies that he did not receive it, the judge cannot rule that there is no evidence to warrant a verdict for the plaintiff.</p> <p>The power given to the lessor, in a contract of conditional sale in the form of a lease of an article of furniture, to retake possession on default in payment by the lessee, is not a waiver of St. 1884, c. 313, if the statute can be waived.</p> <p>The expression in a letter by the lessee to the lessor of an article of furniture, after default in payment by the former, “ Now, if you wish to take it away, you can do so,” does not amount to a license.</p> <p>In an action for the conversion of a piano, delivered to the plaintiff under a contract of conditional sale in the form of a lease and taken possession of by the defendant upon default in payment by the plaintiff, the defendant testified that he mailed a copy of the contract to the plaintiff, as required by St. 1884, c. 313, § 1, and the plaintiff testified that he did not receive it. A bill of exceptions stated that the judge refused to give the rulings requested by the defendant, that the statute did not apply to a piano, and that there was no evidence to warrant a verdict for the plaintiff, but ruled that the statute applied to a piano, “ and that if the jury should find that a copy of the lease was not furnished the plaintiff, etc., the rights of the defendant under the lease were suspended during such default.” Held, that no error appeared.</p>

<p>Goods sold — Partnership—Vendor and Vendee — Action— Tender.</p> <p>If goods of a partnership are sold under an arrangement, made between the managing member of the firm and the vendee, that a certain portion of the price fixed shall be applied to a private debt owed by the former to the latter, an action cannot be maintained by the members of the partnership to recover of the vendee such portion of the price, the rest having been paid; and it is immaterial whether or not the vendee acted in good faith.</p> <p>A plea of tender in an action for goods sold is bad, if not made until after an appeal from the judgment of the court where it was originally brought.</p>

<p>Petition to prove Exceptions — Criminal Procedure — Indictment — Constitutional Law—Trial—Presence of De fendant at Hearing to prove Exceptions.</p> <p>The judge, in his discretion, may discharge a jury in a criminal case where it is unable to agree, and the defendant may be tried again by another jury.</p> <p>The pendency of an indictment is no ground for a plea in abatement to another indictment in the same court for the same cause ; nor is it a ground for a plea in bar, nor for a motion in arrest of judgment.</p> <p>In an indictment under Pub. Sts. c. 202, § 22, for robbery, the defendant being “ armed with a dangerous weapon, to wit, a pistol, with intent,” if resisted, to maim and kill, it is not necessary to allege how the weapon was used or intended to be used.</p> <p>It is sufficient, in an indictment under Pub. Sts. c. 202, § 22, for robbery, to allege that the defendant was “ armed with a dangerous weapon, to wit, a pistol,” without other allegations to show in what way it was dangerous.</p> <p>The provisions of Article XII. of the Declaration of Rights, which secure to the accused person the right to have his crime or offence “fully and plainly, substantially and formally, described to him,” only require such particularity of allegation as may be of service to him in enabling him to understand the charge and to prepare his defence.</p> <p>If an indictment contains three counts, the first charging robbery, the second charging larceny in a building, and the third charging the defendant with being an habitual criminal, and at the trial evidence relating to the third count is introduced by the government and then withdrawn from the consideration of the jury, who are carefully instructed not to regard any of it, and the case goes to the jury on the first count only, upon which a verdict of guilty is returned, the defendant has no ground for a new trial.</p> <p>That the defendant in a criminal case was not present personally at the hearing, before a commissioner appointed by this court, of a petition to prove .exceptions alleged by him at the trial, is not error, unless he desired to be present, or to be heard in person, or to testify in his own behalf.</p> <p>If, after this court has passed upon the questions of law raised by a bill of exceptions, the truth of which is sought to be proved, it appears that the bill alleges exceptions to be saved where none were taken at the. trial, omits important qualifying statements where exceptions were taken at the trial, and differs materially from that proved and is manifestly unfair, the court is not called upon to consider the matter further.</p>

Indictment alleging that the defendant, on March 3, 1895, at Malden, “ the dwelling-house of one Ella F. R. Downes feloniously, wilfully, and maliciously did burn.” At the trial in the Superior Court, before Sherman, J., there was evidence tending to show that the dwelling-house had stood in the name of Margaret Mallon, a married sister of the .defendant, having been purchased by the combined earnings of the defendant and other members of the family; that the title had been…

<p>Complaint, charging the defendant with unlawfully keeping intoxicating liquor with intent unlawfully to sell the same at Maynard, on December 81, 1894.</p> <p>At the trial in the Superior Court, before Bond, J., there was evidence tending to show that, on the evening of December 31, one of the police officers who visited the premises with a search-warrant, found the defendant with a bottle containing whiskey in his hand and a person standing beside him holding a tumbler; that after a struggle with one Matthews, to whom the defendant handed the bottle, the officer took it; that while there was no bar in the room, there were four jugs, two of which smelled of whiskey, and glasses which smelled of or were wet with whiskey; that in the stable were five ten-gallon kegs smelling of whiskey, and that on several occasions in July and August men who entered the premises sober afterwards came out drank.</p> <p>The defendant introduced evidence tending to show that the bottle was brought to the place by Matthews, and belonged to him; that the defendant, Matthews, and a friend had had two or three drinks each out of the bottle, and had used glasses belonging to the defendant; that he hired the premises of one Farrell, and did not live there; that he kept no intoxicating liquors, but sold sweet beer, cigars, etc.; and that some of the jugs had contained vinegar, but none of them had ever contained whiskey.</p> <p>The defendant requested the judge to rule that the defendant could not be convicted of unlawfully keeping intoxicating liquor for sale unless there was some evidence that he actually sold it, or offered or exposed it for sale.</p> <p>The judge refused so to rule; the jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Complaint to the District Court of Central Middlesex, charging the defendant with maintaining a common nuisance at Maynard, between July 7, 1894, and January 9, 1895. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict of guilty; and the defendant alleged exceptions. The only point argued appears in the opinion.</p>

Complaint, alleging a single illegal sale of intoxicating liquors in Boston, to one Thomas M. Keenan, on February 17, 1895. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.

Complaint to the Municipal Court of the City of Boston, for a violation of the provisions of St. 1884, c. 277, entitled “ An Act to prevent the sale or exchange of property under the inducement that a gift or prize is to be part of the transaction,” the first section of which statute is as follows: “ No person shall sell, exchange, or dispose of any property, or offer or attempt to do so upon any representation, advertisement, notice, or inducement that anything other than…

<p>Abortion — Separate Trials — Accomplice — Evidence — Trial — Discretion of Judge — Finding of Fact — Dying Declarations.</p> <p>No exception lies to the refusal of the presiding judge to order separate trials upon an indictment containing two counts, each charging the commission of a similar offence upon different persons.</p> <p>If, at the trial of a criminal case, the judge instructs the jury that a witness for the government was an accomplice of the defendant, who had turned “ state’s evidence ” to avoid the consequences of his part in the affair, and that they are to take these circumstances into consideration in weighing his testimony, tlie defendant is not entitled, at the close of the charge, to ask for fuller instructions as to the uncorroborated testimony of an accomplice, especially if the evidence is not wholly uncorroborated.</p> <p>At the trial of an indictment for procuring an abortion upon A., a witness for the government, who was an accomplice of the defendant, testified that the defendant gave him a slip of paper to take to a certain address along with A.; and that he took it and delivered it to B., who was tried at the same time upon another indictment. B.’s counsel declined to ask her whether she admitted the receipt of the paper. Held, that the judge was warranted in admitting secondary evidence of its contents, which appeared to be directions in the case of A. after the operation.</p> <p>At the trial of an indictment for procuring an abortion, a witness for the government, who was an accomplice of the defendant, testified that he went to a newspaper office and bought a paper, looked at the advertisements, and, in consequence of seeing an advertisement, went to the defendant’s office, where he had testified before that he asked the defendant to procure the abortion. The defendant testified in his own behalf, and admitted that he advertised in that paper, and stated what he advertised, his advertisements being of such a nature that they might be understood to bold out that he was ready to do acts of the kind charged. Held, that the evidence of the witness was admissible.</p> <p>If, at the trial of an indictment against A., another indictment against B., an alleged accomplice of A., is tried also, and, on every occasion when evidence is admitted against B. which is not admissible against A., the judge instructs the jury that it is not to be considered against A., such a course appears to be within the discretion of the judge, and A. is afforded no ground of exception.</p> <p>When a witness has testified directly to a fact from the experience of his own senses, the extent to which he shall be allowed to testify to circumstances corroborative of the truth of what he has sworn rests in the discretion of the judge who tries the case.</p> <p>The finding of the judge presiding at the trial of an indictment for procuring an abortion, that the woman operated upon, at the time she made certain declarations, offered in evidence as dying declarations under St. 1889, c. 100, believed that her end was near, and that her chance of recovery was slight, but that she then had some hope of recovery, cannot be revised by this court.</p> <p>The existence .of any expectation of recovery, however slight, makes dying declarations inadmissible.</p>

<p>Indictment, against John M. Flynn and James Droney, for robbery. Trial in the Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The government called Florence Meakin, who testified that she was assaulted and robbed by the defendants acting together, at five minutes past eight o’clock, on the evening of August 1, 1894, on May Street, in that part of Boston called Jamaica Plain. She was then asked by the district attorney, “ Who were your assailants ? ” In reply she named and designated the defendants.</p> <p>The defence was an alibi, and an issue of fact raised was the identity of the defendants.</p> <p>The government also called Dr. James P. Broderick, who testified that he attended Miss Meakin after nine o’clock on the evening of the robbery, and she was then in a hysterical condition ; that he attended her the morning after the robbery, and also attended her the next morning thereafter; and that she was hysterical on both occasions. To the admission of this evidence the defendants excepted.</p> <p>William Schneider, a witness for the government, testified that he had known Miss Meakin for some time before the robbery, and just before it occurred “ she looked very well ” ; that he saw her several times after the robbery, and saw her at her house after her return from an asylum; and that on this occasion her health was poor and her condition was hysterical. To the admission of this evidence the defendants excepted.</p> <p>The defendants called one James T. Kelley, who testified, in substance, that he was with the defendant Flynn on the night of the robbery shortly before eight o’clock at a place so far remote from the scene thereof as to make it impossible for Flynn to have participated therein.</p> <p>On cross-examination as to his means of fixing the time of the occurrence and the time of the robbery, the district attorney, against the defendants’ objections, was allowed to ask this witness the question, “ Did you associate Flynn with the robbery ? ” to which the witness replied, “ Tes ” ; the witness having previously said, on cross-examination, that his attention was called to the robbery on the day succeeding it, and that he then thought of Flynn. To the admission of this question and answer the defendants excepted.</p> <p>One Albert Brown, a witness for the defendants, testified that he was with the defendant Droney, at the time of the robbery, in the city of Worcester. It appeared from the evidence in chief of this witness, that he had been arrested for complicity in this offence and held in the lock-up at Jamaica Plain, and brought before Miss Meakin there by the officers for identification.</p> <p>On cross-examination, against the defendants’ objection, the following question was put: “Miss Meakin did not identify you as the man who assaulted her? ” and he answered “ No. I don’t know as she saw me. I saw her. She could have seen me if she looked.” To the admission of this evidence the defendants excepted.</p> <p>In rebuttal, the government called John H. Connor, a police officer, who testified that on the day of the robbery he saw the defendant Flynn and the witness Brown together, on Centre Street in Jamaica Plain ; that he fixed the time from the circumstance of the stealing of some electric wire which he reported to the police station at or about the time of the robbery; that his attention was called to the robbery in January; and that then, at the police station, he looked at a book of records of the police station. A book was then shown to the witness, whereupon he was asked, against the defendants’ objection, “ Is this the book you looked at ? Is the report you made contained in that book ? ” To both of which questions he answered, “ Yes.” Neither the book nor report which it was said to contain was read to the jury. To these questions and answers the defendants excepted.</p> <p>In the course of his charge to the jury, and referring to the evidence of Miss Meakin and the matter of the identity of the defendants, the judge said, “ She identifies them here at the trial without hesitation.”</p> <p>At the end of the charge the defendants excepted to so much thereof as is comprised in the words above quoted. The judge thereupon, and referring to the use of the words to which the defendants took exception, instructed the jury as follows: ‘“I was then depending upon my recollection. It is for you to say what the evidence is.” Whereupon the defendants renewed their exception.</p> <p>The jury returned a verdict of guilty; and the defendants alleged exceptions.</p>

Appeal, by Robert D. Porter, from a decree of the Probate Court making a second allowance, under Pub. Sts. c. 135, § 2, of two hundred dollars, upon the petition of Caroline E. S. Porter, the widow of Robert Porter, deceased, intestate. At the hearing in this court, before Morton, J., it appeared that upon this second allowance the appellant, who was the intestate’s administrator, assigned as reasons for the appeal : 1.

<p>Personal Injuries ■—■ Railroad — Public Way by Prescription — Evidence — Exceptions.</p> <p>W. Street in’a city ran east and west to a river, and a railroad ran north and south. The railroad location was filed in 1845, and W. Street across the location appeared on it. The right to construct the railroad over the land was conveyed by W. and another to the corporation, by a deed dated more than three months after the location was filed, containing the following: “ Reserving, however, the right to the use of W. Street as a street two rods in width where it now is. Also the right at their own cost to remove said street farther south and to make it three rods in width." W- Street was never laid out across the railroad location or westerly of the location to the river as a public way, but was laid out by the city authorities for a portion of the distance in 1854, and the balance of the distance in 1867, to the easterly side of the railroad location. There were no signs of any kind at the entrance of the way over the location. The houses westerly of the railroad were few in number. There was some travel across the railroad location to and from boats and boat-houses on the river bank as far back as 1852 or 1853, and also travel for ten or twelve years prior to 1893 to a public dump on the river. Held, in an action for personal injuries sustained in 1893 at the crossing of W. Street by the railroad, that there was some evidence for the jury that the street had then become a public way by prescription.</p> <p>If the issue in an action is whether a street had become a public way by prescription, an ancient deed of land in which the street is mentioned and a plan referred to in the deed are admissible in evidence, in tile discretion of the judge, to show the origin and history of the way; and an exception, which does not appear distinctly to have been alleged to the instruction of the judge upon the effect of the deed and plan taken by themselves, will not be sustained.</p>

<p>Personal Injuries — Master and Servant — Defective Appliance — Evidence — Expert.</p> <p>A question which calls for the opinion of a witness upon the effect of evidence in establishing facts which do not depend upon his knowledge as an expert is properly excluded.</p> <p>If the subject to which a question related that was put to a witness and excluded seems to have been so far explained in the evidence of the witness subsequently admitted that no injury resulted from the exclusion of the question, an exception to such exclusion will not be sustained.</p> <p>In an action for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by being struck by a belt on a machine which broke at the point where it was fastened together by an iron plate, if the principal issue is whether the defendant had used reasonable care in furnishing a proper belt, it is within the discretion of the judge to exclude evidence offered to show that there were other kinds of fastening which could have been used by the defendant to better advantage, but not amounting to an offer to show that such other fastenings were in common use as fastenings for belts.</p>

<p>Petition in equity, filed January 16, 1895, by six citizens of New Bedford, to compel the defendant, as treasurer of a political committee, to file a statement in conformity with the .provisions of St. 1893, c. 417, and to produce certain books and records. The defendant demurred to the petition, assigning various grounds of demurrer. Hearing before Lathrop, J., who sustained the demurrer, and dismissed the petition; and the petitioners appealed to the full court. The facts appear in the opinion.</p>

Contract, upon a promissory note for |100, dated December 1, 1891, and made payable six months thereafter to the order of the defendants’ testator.

Complaint, for keeping a common nuisance, to wit, a tenement in Framingham for the illegal sale and illegal keeping of intoxicating liquor. At the trial in the Superior Court, before Sherman, J., it appeared that the case had been tried once before, and that the jury were unable to agreé.

<p> Statute—Revocation of Will by Marriage. </p> <p>The St. 1892, c. 118, entitled “ An Act relative to the revocation of a will on the marriage of the testator,” does not operate upon marriages which took place before the statute took effect, and the fact that the statute was approved on March 31, 1892, but was not to take effect until July 1, 1892, does not affect the construction to be given to it.</p>

<p> .Bill in Equity to enjoin Enforcement of Judgment. </p> <p>A bill in equity to enjoin the enforcement of a judgment at law will not lie, if it appears that the defendant in the action at law failed to make a proper defence through the negligence of his attorney, and there was no fraud on the part of the plaintiff in that action, and no accident or mistake.</p>

Bill is equity, by the trustees under the will of David Joy, against Moses Joy, Jr., Frederick J. Greene, and David J. Greene, the last two named being the children of Elizabeth Greene, deceased, and Antioch College, to obtain the instructions of the court as to the construction of the fifth article of the will.

<p>Indictment, against Patrick Sullivan, Patrick J. Foley, and Cornelius Nagle, for the murder of Duroy S. Foster, on September 11,1894, at Billerica. At the trial in the Superior Court, before Sherman and Lilley, JJ., the jury returned a verdict of murder in the second degree; and the defendants alleged exceptions, which appear in the opinion.</p>

<p>Taking of Water and Water Rights — Sufficiency of Description in Instrument of Taking — Equity.</p> <p>Whether a statute authorizing the taking of the water of a certain brook, “or of any springs, natural ponds, brooks, or other water sources,” includes the waters of an artificial pond, qucere.</p> <p>A corporation, which was authorized by statute to take and hold certain water and water rights, and also all necessary lands for raising, holding, and preserving such water, filed in the registry of deeds, as required by the statute, an instrument which, after stating that it was necessary that a pumping station and its appurtenances be constructed, and that certain lands be taken therefor and for the preserving of its waters in the vicinity thereof, recited that “for the purposes hereinbefore specified ” the corporation had “ taken the lands hereinafter described,” and contained a description of the lands taken. The corporation dug wells on the land taken, from which it pumped water drawn from the pond of a third person. Held, on a bill in equity to restrain interference with the water, that there was no description of the water taken sufficient to justify its withdrawal.</p>

<p> Action by Administrator on Personal Covenant. </p> <p>The following covenant was appended to a lease : “ In consideration of the letting of the above described premises, and one dollar to me paid, the receipt of which is hereby acknowledged, I do hereby become surety for the prompt and full payment of the rent and performance of the covenants as specified in the above lease.” Held, in an action against the covenantor by the administrator of the lessor and covenantee that the covenant was a personal one, and did not run with the land, and that the administrator was the proper person to sue.</p>

<p>Bill in equity, in the nature of a bill of interpleader, filed January 9, 1883, against the city of Salem and the town of Marblehead, and the respective collector of taxes of each, to determine which of them has the right to assess taxes on a certain parcel of land, with the buildings thereon, situated-on and near the lower bridge on Forest River at its outlet into Salem Harbar, as appears on the following plan, A representing the line as claimed by Marblehead and B the line as claimed by Salem.</p> <p> </p> <p>The case was referred to a master, who found and reported the following facts.</p> <p>The decision of the controversy turns upon the location of the boundary line between the parties at the lower bridge on Forest River. There are two bridges on Forest River; the upper and older was built after 1649 and before 1667, and the lower bridge, on and near which the plaintiff’s mills are situated, was built about 1735. The undisputed lines run from the cliff by the sea at or near the line formerly dividing Salem and Lynn, now Marblehead and Swampscott, then by sundry lines to a stone bound near Legg’s Hill. From that point to the lower bridge and thence to the harbor the boundary is in dispute. The line, as claimed by Salem, runs from the stone bound at Legg’s Hill along the bank of the river on the Marblehead side to a painted mark on the rail fence on the same side, which is on the road a few feet above the bridge, and twenty feet above high-water mark, thence across the road to a cedar tree, thence northeasterly in a straight line through the pump in the rear of the plaintiff’s mills to Salem Harbor.</p> <p>The line, as claimed by Marblehead, runs from the same stone bound at Legg’s Hill in continuation of the line as it reaches that bound to Forest River, a distance of about forty feet at high water, and thence by the middle of the river to Salem Harbor. The property in question lies between these lines.</p> <p>Salem has assessed this property as being in that city for about fifty years. Before 1882, it was taxed but once by Marblehead, viz. in 1832, and that assessment was abated in whole or in part.</p> <p>After 1875 Marblehead was advised that the true line was as the town now claims it, and it assessed the property in 1882, as did Salem, and hence this suit.</p> <p>The tide flows in Forest River to the upper bridge. At low tide it has a channel about five or six feet wide at the upper bridge, and thirty to forty feet wide at the lower bridge. At high water its width between the bridges varies from two hundred and fifty to three hundred feet.</p> <p>In 1649, when Marblehead was set off from Salem and made a town “ by itselfe,” the river was probably used at high tide by small vessels, for it was ordered by the selectmen of Salem in 1667 that no vessel should be made fast to the bridge under a penalty of twenty shillings.</p> <p>In May, 1635, it was ordered by the General Court “ that there shall be a plantation at Marblehead, and that as the plantation increaseth, the inhabitants of Salem shall pt’e [part] with the ground.” “ Further it is ordered that the land betwixt the clifte and the Forest River near Marblehead shall for the present be improved by John Humphrey, Esqr. and that as the inhabitants shall stand in need of it, the said John Humphrey shall pt’e with it, the said inhabitants allowing him equall recompence for his lab’r and cost bestowed thereupon ; provided, that if in the meantime the inhabitants of Salem can satisfy the Court that they have true right unto it, that then it shall belong to the inhabitants thereof.”</p> <p>In March, 1637—8, Humphrey was granted land beginning “ at the clifte in the way to Marblehead w’ch is the bound betwixt Salem and Lynn, and so along the line between said townes to the rocks, one mile by estimation, to a great red cake marked, from said which marked tree, all over and under theise rocks upon a straight line to the running brooke by Thomas Smyth’s house, all w’ch ground we allow him for his owne, and so from Thomas Smyth’s to the sea, in case the ground appears to bee Mr. Humphrey’s upon w’ch Thomas Smyth’s and Willie Witter’s houses stand, with the ground w’ch they have broken up by their houses.”</p> <p>In January, 1648, at a town meeting of Salem, it was ordered that Marblehead with the allowance of the General Court should be a town, and the bounds to be the utmost extent of that land which was Mr. Humphrey’s farm, and sold to Marblehead, and so all the neck to the sea; reserving the disposing of the ferry and appointing of the ferryman to Salem.</p> <p>In May, 1649, the General Court granted the petition of the inhabitants of Marblehead “ to be a towne of themselves, Salem having granted them to be a town of themselves, and appointed them the bounds of their towne w’ch the Corte doth grant.”</p> <p>The resolve of Salem refers to Humphrey’s farm as sold to Marblehead. The deed to Marblehead therein referred to has not been found. A memorandum on file in the registry of deeds, made in 1655 by William Hathorne on behalf of Lydia Bankes, supposed to be the heir or an heir of John Humphrey, describes the land as “ all that fiarme called ye playnes forme lying in Salem & adjoyning to Mr. Peters forme, being 400 acres more or less, with all ye housing, fencing, & appurtinances wtsoeever, excepting 50 acres & 2 ponds formerly granted to Mr. Downing as p an Instrument bearing date ye 24th of ye 7 mo. 1645 appeareth.” The two ponds are what are called the “ Coye ponds.”</p> <p>The Coye ponds are a short distance above Forest River, and the overflow from them forms part of its supply. They were sold by John Humphrey to Emanuel Downing with so much high ground about them, not above fifty acres, “ as is needful to keep the duck cove private from the disturbance of plowmen, herdsmen,” etc.</p> <p>The first perambulation was in 1679, thirty years after the incorporation of Marblehead. The description is:</p> <p>“ From a stump of a white oak tree southward of George Darling’s about twenty pole ; and thence along southerly of the Coye ponds to a red oak, and from the red oak and a warnutt tree something near the same range, from the warnutt tree to the side of a rock where there is a stump of a white oak, and from thence to an old red oak tree by the side of Tho. Pitman’s salt marsh, unto all which bounds we have laid stones, and are the bounds between Mr. Humphreys forme and the fifty acres belonging to the cove ponds, which fifty acres lies in Salem township. Likewise we do affirme the antient bounds of the forme, viz. from the white oak stump southward of George Darling’s to the clift or run of water by the sea, and do settle it as the utmost extent of Marblehead township on that side or part.”</p> <p>These lines or bounds were confirmed in 1684 and 1694. In 1697 these bounds were confirmed, but in the description the perambulation began on the Lynn side, and ended at a red oak tree by the side of Thomas Pitman’s marsh. The perambulations of 1703, 1706, 1712, 1715, and 1718 were like that of 1697.</p> <p>In 1747, the description begins at the cliff and runs on the lines now undisputed to a heap of stones on the north side of a road that leads from Forest River to Marblehead against the corner of Norden’s farm, so called, and thence on the same course down to the river. This was followed in 1757,1763,1766, 1769, 1772, 1788, 1793, and 1799; in 1804 the bound stone at Legg’s Hill appears to have been placed in the ground instead of a heap of stones, and the line was said to run thence north seven degrees west to Forest River. The above lines, says the return, were run by Gideon Foster, Esq. The description in Gideon Foster’s report stops at the stone bound, and says nothing about Forest River.</p> <p>In 1810 the description begins “ near Forest River at the bottom of Legg’s Hill,” where was found a stone marked S. for Salem and M. for Marblehead, and runs thence by the undisputed lines to the seaside at Lynn.</p> <p>This description is repeated in the several perambulations down to and including 1870.</p> <p>In the perambulation of 1875, signed by both parties, the description, so far as material to this case, is as follows:</p> <p>“ Beginning at a point in the road from' Marblehead to Salem, near the Forest River Lead Mills, so called, and on the southern side of Forest River, where we found no stone nor any mark indicating the true bounds, excepting a mark painted on the railing of the bridge over said river, said mark being between the last round iron support or post to said rail, passing northwardly and the first square iron support or post to said rail passing in the same direction, thence running in a S. W. direction to.a place near Forest River at the bottom of Legg’s Hill (so called), where we found a stone marked S. for Salem and M. for Marble-head,” etc.</p> <p>The last perambulation given in evidence was in 1880, and is not signed on the part of Marblehead.</p> <p>No stone bound has ever been placed at the angle where the mark on the rail is found.</p> <p>The St. 1826, c. 117, § 1, requires permanent stone monuments to be placed at each and every angle of the line between towns, where the lines are not bounded by the ocean or some permanent stream of water. .</p> <p>In 1794, a map was filed with the Secretary of the Commonwealth, and with it a description of Salem : “ The Town of Salem joins Marblehead, on the south side of the water of Forest River, which communicates with South River, and the line runs from a point on that river below Legg’s Mill, so called, to Bartlet Beach on Lynn Bay. . . . Forest River at the lower bridge is three hundred and forty-six links wide upon the bridge, and contracts greatly at the upper, from which its course is N. 285,50. It receives waters from Great Swamp and other smaller swamps, from Coy and Deep Ponds, and from Peckman’s Brook.”</p> <p>The plan shows the line as running by the river, but the scale is so small that it cannot be seen whether the middle or the south bank of the stream is intended.</p> <p>In 1735, John Gardner and Jeremiah Gatchell petitioned the selectmen of Salem to grant them the right to dam the river where the lower bridge now is. This petition was granted on condition that the petitioners should give and maintain a suitable way through their own land, and make and maintain a good cart bridge over the river at their own cost and charge. A bond was given to the town of Salem to meet this obligation of repair, and the duty is mentioned in the deeds of the property down to the present time.</p> <p>In 1736, the lower bridge was laid out by the Court of Sessions as a part of a highway between Salem and Marblehead, but the boundaries between the towns did not come into consideration.</p> <p>Salem has always repaired the whole of the bridge, and up to the iron posts; Marblehead has repaired the road down to those posts. In 1681 the towns agreed to repair the bridge and the causeway belonging thereto at their joint expense. This was the upper bridge, as there was then no other.</p> <p>In 1806, a committee reported to a meeting of the inhabitants of Marblehead that Mr. Dane of Beverly had given an opinion in “ wrighting ” that Marblehead was not obliged to build or repair any part of the bridge or causeway, or to be at any expense about it, it being wholly in the town of Salem; and the town voted to do nothing further about it. Whether this opinion and vote refer to the upper or the lower bridge is uncertain.</p> <p>In 1743, Salem was indicted for not keeping the bridge in repair. This is the lower bridge.</p> <p>There is no evidence when, or by whom, or for what purpose, the mark on the rail, which is called by Salem a monument, was made, or the iron posts were put up. They are not mentioned in any perambulation until 1875. One witness had heard that Salem put up the posts. The commissioners appointed under St. 1881, c. 196, established the line between Salem and Marble-head on tide water below the lower bridge, beginning “at the point at or near the mouth of Forest River where the channel of said river is crossed by the Marblehead Branch Railroad Bridge, thence by certain lines to the sea.”</p> <p>“ Upon the evidence, I find that the true line between Salem and Marblehead is Forest River. At the time Marblehead was set off, the river was navigable at the part in controversy. When the dam and lower bridge were built, about 1735, and since, this part of the river has been a tidal mill-pond. If the mark on the rail above mentioned is a monument, there is no evidence how the line runs from that point to the harbor. Three witnesses spoke of perambulators having gone down from the rail to the well on the line claimed by Salem, but when they did this does not appear. I infer from the facts above recited that the general repute in both towns was, that, while Forest River was the boundary, the river itself was in Salem. This view appears to have been acquiesced in for a great number of years by Marble-head, by permitting Salem to tax the now disputed territory and to repair the bridge. I have already said that, if the line claimed by either party is the true one, the disputed territory belongs to that party. But there may possibly be a different line from either. If the true line is low-water mark on the Marblehead side, most of the locus is in that town. If the line is at high-water mark on the Marblehead side, some part of it is in that town.”</p> <p>In the evidence reported by the master was that of Benjamin Parmiter, who testified in 1681 that the “ plain ffarme now in controversy was bought of Majf Hathorne about the year 1615 by Mr. Morse Maverick, David Corwithen & severall other Proprietours.”</p> <p>Hearing before Holmes, J., who, at the request of the parties, reported the case for the consideration of the full court, upon the master’s report. If the court was of opinion that the boundary is low-water mark, the case was to stand for further hearing as to how much, if any, of the plaintiff’s property lies below low-water mark.</p>

<p>Personal Injuries — Employers’ Liability Act — Defective Appliance—Assumption of Risk — “Superintendence”—Unsuitableness of “Ways, Works, or Machinery ’ ’ — Evidence.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ by the falling upon him of a large iron pump, which, loaded upon a truck, he with others was moving from one part of the defendant’s works to another, the question whether the plaintiff had assumed the risk of the accident is a question for the jury, in view of his contention that there were no washers on the truck, and that their absence constituted a defect.</p> <p>Whether A., employed by the defendant as foreman of its yard, but who at times worked with his own hands, is one whose “ principal duty is that of superintendence,” within the meaning of the employers’ liability act, St. 1887, e. 270, § 1, cl. 2, is a question for the jury in an action for personal injuries occasioned to the plaintiff while in the defendant’s employ by the falling upon him of a large iron pump, which, loaded upon a truck, he witli others was moving from one place to another in the defendant’s works, in accordance with A.’s directions.</p> <p>An unsuitableness of “ ways, works, or machinery ” for work intended to be done and actually done by means of them is a defect, within the meaning of St. 1887, c. 270, § 1, cl. 1, although they are perfect of their kind, in good repair, and suitable for some work done in the employer’s business other than the work in doing which their uusuitableness causes injury.</p> <p>In an action under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to the plaintiff by the falling upon him of a large iron pump, which, loaded upon a truck, he with others was moving from one part of the defendant’s works to another, evidence as to other appliances which were at hand and other methods which might have been used to move the pump is admissible upon the question whether the defendant’s superintendent was at fault in causing it to he moved as he did.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ by the falling upon him of a large iron pump, which, loaded upon a truck, he with others was moving from one part of the defendant’s works to another, if the plaintiff contends that the absence of washers on the truck constituted a defect, evidence that the purpose of washers was to prevent the wheels from rubbing against and working out the pins, and not to prevent the truck or its load from shaking, is rightly excluded as immaterial.</p>

Contract, upon a promissory note, of which the following is a copy: “1250.00. Chicago, Nov. 2, 1886. On demand after date, I promise to pay to the order of W. Libbey Eaton, Two Hundred and Fifty Dollars, at with interest until paid. Value received.

<p>Personal Injuries — Employers’ Liability Act—“ Ways” — Assumption of Risk — Negligence — Due Care — Law and Fact.</p> <p>If, at the trial of an action under the employers’ liability act, St. 1887, c. 270, there is evidence tending to show that the defendant’s superintendent was negligent in other matters than suffering a road on the defendant’s premises where the plaintiff’s injuries occurred to be defective, a general ruling that the plaintiff cannot recover will not be justified by the consideration that the road was not a part of the defendant’s “ ways,” within the meaning of the statute; and, if no request was made for particular instructions applicable to that question, it is not open to the defendant in this court.</p> <p>In an action under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to the plaintiff by the falling upon him of a long square timber which was being hauled along a defective road on the defendant’s premises on a low gear, with its narrower sides at the top and bottom, if the evidence tends to show that the timber was loaded upon the gear and moved under the personal direction of the defendant’s superintendent, who was experienced in such matters, that, the timber beginning to tip up, he ordered the plaintiff and others to get upon it and hold it down, and that it was the plaintiff’s first experience with the transportation of such a timber upon such a gear, the questions to what extent the plaintiff’s experience of many years in farming, hauling stone, and logging made the danger to which compliance with the superintendent’s order would subject him known and appreciated by him, whether he was in the exercise of ordinary care in obeying the order, and whether the superintendent was negligent in giving the order, are for the jury.</p>

Contract against the makers and indorsers of a promissory note for $390, dated November 18, 1892, and indorsed to John M. Way, the plaintiff’s testator. Trial in the Superior Court, before Blodgett, J., who allowed á bill of exceptions, in substance as follows. This action was brought originally by the payee of the note, John M. Way, who subsequently died, and his widow, the plaintiff, who was the executrix of his will, was duly admitted to prosecute the action.

Two actions OE contract, each upon an account annexed, for money had and received. The cases were tried together in the Superior Court, without a jury, before Dunbar, J., who found for the defendant in each case; and the plaintiffs alleged exceptions. The facts appear in the opinion.

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. The declaration contained two counts under the employers’ liability act, St. 1887, c. 270. Trial in the Superior Court, before Dunbar, J., who refused to rule, as requested by the defendant, that, upon all the evidence, the plaintiff could not maintain his action.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.</p>

<p>Review—Jurisdiction — Discretion of Judge.</p> <p>The denial by the Superior Court of a motion for a new trial of an action does not, as matter of law, deprive this court of its jurisdiction, under Pub. Sts. c. 187, § 22, to grant a petition for review.</p> <p>If, at the trial of an action in the Superior Court, certain evidence was excluded, and the party offering it omitted, through inadvertence, to take an exception to its exclusion, this court is not bound to grant a review of the judgment, and no exception lies to its refusal so to do.</p> <p>If a petition for the review of a judgment shows that, at the trial of the action, without a jury, there was evidence on both sides, and that the defendant was a witness in Ms own behalf, and the decision was in his favor, and the particular grounds upon which it rested are not stated, the refusal of a justice of this court to order a review presents no question of law, but is a matter resting in his discretion, to the exercise of which no exception lies.</p>

<p>Loss of Life — Railroad — Due Care — Negligence — Action.</p> <p>An action cannot be maintained against a railroad corporation for causing the death of a girl thirteen years old, who is killed by being caught between two cars of a long freight train, while attempting to pass through an opening about six or eight feet wide between the cars, which are on tracks nearly in the usual line of travel to the platform used by passengers, and to the station beyond on the opposite side of the main tracks, after the forward part of the train has begun to be backed up, no emergency being shown which would justify her in taking any risk.</p>

<p> Municipal Court of Boston—Petition to vacate Judgment—Appeal—Practice. </p> <p>Under St. 1893, c. 396, § 24, a petitioner to the Municipal Court of Boston to have a judgment vacated under Sts. 1893, c. 390, § 38, and 1894, c. 431, has a right of appeal from the judgment dismissing the petition.</p>

<p>Appeal, by the administrator of the estate of Jennie C. Chase, from a decree of the Probate Court, disallowing certain items in his first account as administrator.</p> <p>Hearing before Field, C. J., who reported the case for the determination of the full court. The facts appear in the opinion.</p>

<p>Promissory Notes—Deed with Written Agreement of Grantee regarded as Morlgage — Evidence that Consideration of Deed was Extinguishment of Liability on Notes.</p> <p>At the trial of an action upon three promissory notes, it was assumed in favor of the plaintiff’s contention that certain deeds given by the defendant to the plaintiff on the day on which the last of the three notes was executed, and a written agreement given by the plaintiff to the defendant to the effect that, if the piaintiff sold the property for more than enough to pay him, he would pay over the balance to the defendant, constituted a mortgage. Held, that it was competent for the defendant to show that the consideration of the deeds was the extinguishment of his personal liability on the notes.</p>

<p>Life Tenant with Power of Disposition — Eminent Domain—Damages— Election.</p> <p>If, during the pendency of a suit for damages for the taking of land by the right of eminent domain, A., who is the life tenant, with power of disposition which has never been executed, dies, and thereafter a settlement of the suit is effected, the money received as damages is to be paid to A.’s estate, if his acts, in the absence of anything to limit or control the natural inference to be drawn from them, are sufficient to show an election by him to avail himself of his right to the proceeds of the land.</p>

<p>Contract, upon an account annexed, to recover the amount expended by the plaintiff town for the support of Elicia King and her two minor children, paupers, whose settlement was alleged to be in the defendant city. Trial in the Superior Court, without a jury, before Dewey, J., who reported the case for the determination of this court, in substance as follows.</p> <p>Elicia King and her two minor children, while in Stoughton, fell into distress, and stood in need of immediate relief, and the overseers of the poor of Stoughton provided such relief at an expense of $156.50, as set out in the declaration.</p> <p>The statutory notice required to charge Cambridge for said expenses, if it was liable, was duly given, and Elicia King and her minor children were not removed by the overseers of Cambridge. Elicia King never had a settlement in Cambridge, unless one results from the following facts. On November 5, 1874, being then known as Elicia Young, and having no settlement in this Commonwealth at that time, and being more than twenty-one years old, she married Thomas King, a hostler by occupation, who resided in Cambridge from April, 1872, until his death in October, 1885. Neither on November 5, 1874, nor at any time since, did he have any settlement in this Commonwealth. King paid taxes assessed on him in Cambridge in the years 1875, 1876, 1883, and 1884, and in no other years. He and Elicia kept house together in Cambridge for several months in 1875 and 1876, and again in 1883. During the rest of their married life King boarded in Cambridge and lodged there in a room in the stable of Samuel Tufts, his employer; and his wife worked out at service in ■ various places, going occasionally to Cambridge to visit her husband. There was no evidence that she ever cohabited with him after 1883. From the time of her marriage to King until April 30, 1887, there was no evidence that she received relief as a pauper in Cambridge. They had two children, being the children mentioned in the declaration, one born in Stoughton on May 18, 1877, and the other in Boston on July 10, 1881. These children, when the parents were not keeping house together, were boarded with the wife’s sister in Stoughton, both parents contributing' toward the expense of their board. Elicia King, when not with her husband at Cambridge, as above set forth, and when not out at service, boarded a part of the time in Boston and a part of the time in Stoughton. At Boston she was in the almshouse.</p> <p>On the foregoing facts the judge ruled and found that Elicia King had her settlement in Cambridge; and found for the plaintiff. If the ruling and finding were correct, judgment was to be entered on the finding; otherwise, it was to be set aside, and judgment entered for the defendant.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the falling of a platform on premises owned by the defendant in Woburn. At the trial in the Superior Court, before Bishop, J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions. The facts appear in the opinion.</p>

Tort, for false imprisonment. At the trial in the Superior Court, before Sheldon, J., it appeared in evidence that the plaintiff was duly sentenced by the Police Court of Lowell for drunkenness,.on September 9, 1893, to six months’ imprisonment at the workhouse in Lowell; that the court issued a precept or mittimus upon the sentence in due form, and committed the same for service to one Cawley, an officer authorized to serve it, who by virtue thereof took the plaintiff to…

<p>Statute — Mortgage — Interest on small Loan.</p> <p>Where an action for conversion is brought by the mortgagee against one who has purchased personal property from the mortgagor while the mortgage was in force, interest on the note secured by the mortgage being at the rate of sixty per cent per annum, and the same being for a small loan, such as is provided for in St. 1892, c. 428, the measure of damages is the principal sum borrowed and interest at the rate of eighteen per cent per annum from the time the nioney was borrowed, together with a small sum for expenses as provided in the statute.</p>

<p>Breach of Contract — Evidence — Damages.</p> <p>If it appears from a bill of exceptions alleged at the trial of an action that, by a misunderstanding between the judge and the plaintiff’s counsel as to the nature of certain evidence offered, the evidence was excluded, and that under a subsequent ruling the counsel seemingly put in what he was seeking to introduce, the plaintiff shows no ground of exception.</p> <p>A verdict for the defendant in an action for breach of contract renders immaterial the exclusion of evidence as to the amount of damages.</p>

Contract, by the administratrix of the estate of Alexander Margesson, to recover on a certificate of membership in the defendant association. Trial in the Superior Court, before Thompson, J., who ordered a verdict for the plaintiff for the full amount claimed; and the defendant alleged exceptions, which were allowed by Dunbar, J. The facts appear in the opinion.

Tort, for personal injuries occasioned to the plaintiff by being struck by the defendant’s locomotive engine at Swampscott. Trial in the Superior Court, before Blodgett, J., who ruled, at the request of the defendant, that upon the whole evidence the plaintiff was not entitled to recover, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

Petition to the Superior Court, under St. 1890, c. 127, for a reduction of the valuation of the petitioner’s property in Lowell, and an abatement of the tax assessed thereon.

<p>Personal Injuries— Assumption of Risk — Action.</p> <p>If an employee of a railroad corporation, while starting down the side ladder of a moving freight car in the discharge of his duty, is injured by coming in contact with a car which was wider than the ordinary cars, and was standing on a side track which was parallel with the main track, he cannot recover in an action against the corporation for his injuries, if the position of the tracks was open and visible, and it was customary to receive and store such cars on the side track,-and their use and size were known to the plaintiff.</p>

<p>Personal Injuries — Negligence—Evidence.</p> <p>An employee has no right of action against his employer for an injury received by him, if it resulted from a pure accident, and the employer’s omission to guard against it was not negligence.</p> <p>In an action for personal injuries occasioned to the plaintiff while he was working for the defendant in a trench, evidence of what was usually done a]j other places and under different circumstances is rightly excluded.</p>

<p>Foreclosure of Mortgage — Publication, of Notice — Oral Promise to sell Land.</p> <p>The Pub. Sts. c. 181, § 17, provide for the publication of notice of foreclosure by sale under a power of sale mortgage in a “ newspaper, if there is any, published in the city or town wherein the mortgaged premises are situated.” A newspaper called the Dighton Rock, which had the same contents as a newspaper called the Fall River Advertiser, but a different heading and date line, was printed in Fall River, and a few copies of it were sent to Dighton to regular subscribers or for sale and distribution. Meld, that the newspaper was published in Fall River.</p> <p>An oral promise by a purchaser at a foreclosure sale under a power of sale mortgage made to the mortgagor before the purchaser has received a deed from the mortgagee, that, if the mortgagor wishes, the purchaser will sell the premises back to the mortgagor for what they cost, does not bind the purchaser by way either of contract or of trust.</p>

<p>Landlord and Tenant — Lease — Injunction — Nuisance — Law and Equity.</p> <p>Where the lessee of a building cuts apertures in the floors, removing the cross timbers and flooring and covering the apertures by trap doors with hinges, and using the apertures to give passage to articles raised by a tackle and fall, even if these acts constitute a violation of the terms of the lease, the lessor is not entitled to have the lessee enjoined from using or continuing the openings, no substantial injury being shown, but he will be left to his legal remedies.</p> <p>If the lease of a building is made with full knowledge of the lessee’s business, which was then being carried on in the same premises, and of the uses to which the premises would continue to be put, and the actual use of the premises is no worse than is necessarily incident to the business which was contemplated when the lease was made, but the effects of the business are to create a nuisance on the premises, the lessor is not entitled to have the lessee enjoined from continuing such nuisance, if the effect of the injunction will be either to compel the lessee to stop the business or to make expensive alterations in the premises, but the lessor will be left to his legal remedies.</p>

<p>Personal Injuries — Social and Charitable Organization — Negligence.</p> <p>If, while much of the work of a corporation, which has no capital stock and applies all its revenues to the purposes of its organization, is of a charitable nature, its purposes are also social and include the giving of lectures and of theatrical and other entertainments for the benefit of its members, the provision of a gymnasium and of athletic sports for promoting their health and the sale of food at a coffee or lunch counter, it has no right to exemption from liability for injuries occasioned by its own negligence to persons rightly on its premises.</p>

<p>City — Contract — Permit to move Building through Streets — Ratification.</p> <p>The authorities of the city of Boston having charge of the sale of buildings cannot bind the city by a guaranty giving to the purchaser of a building a permit to move it through the streets in any other form or on any other conditions than those prescribed by the city ordinances and the regulations of the board of aldermen ; and, if such persons assume to guarantee the granting of a permit in any other way, or of any other kind, the purchaser is bound to know that they are acting without authority, and is not entitled to treat as a ratification of the unauthorized guaranty an order of the board of aldermen authorizing the issue of a permit “ on the terms and conditions expressed in the ordinances of the city relating thereto.”</p>

The declaration alleged that, on July 7, 1893, the defendant executed and delivered to the plaintiff a deed wherein the defendant covenanted with the plaintiff that the premises described therein were “ free from all encumbrances made or suffered by it except the taxes assessed for the year 1893,” and that the plaintiff, relying on the covenant, received the deed and paid the agreed consideration therefor; that the premises were not free from all encumbrances, as the…

Three actions of contract, by the collector of taxes of the town of Braintree for 1898, to recover the amount of a tax assessed to the defendants respectively. The cases were tried together in the Superior Court, without a jury, before Hammond, J., who reported them for the determination of this court, in ' substance as follows.

Contract, against the administrator of the estate of Judas M. Josephson, for money had and received. Writ dated May 10, 1894. Trial in the Superior Court, without a jury, before G-asJdll, J., who reported the case for the determination of this court, in substance as follows.

Petition for a writ of mandamus, requiring the respondents to draw an order in favor of the petitioner upon the county treasury for the sum of $800, or such part thereof as should seem proper to the court. Hearing before Lathrop, J., who reported the case for the consideration of the full court, in substance as follows.

Contract, to recover money paid by the plaintiff, a minor. Trial in the Superior Court, without a jury, before Sheldon, J., who found for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.

<p>Tort, for the conversion of certain household furniture. Trial in the Superior Court, without a jury, before Mason, C. J., who found for the defendants, and reported the case for the determination of this court. If the finding was correct, judgment was to be entered thereon; otherwise, it was to be set aside, and judgment entered for the plaintiff for the sum of three hundred dollars, which was the value of the furniture. The facts appear in the opinion.</p>

<p>Work and Materials — Contract— Action.</p> <p>A. contracted to build a machine for B., according to plans and specifications, for $400, which was to be completed under the supervision of C., the inventor, who was desirous of getting it introduced into B.'s manufactory. When the machine was completed according to the contract, A. sent a bill for the balance of the $400 then unpaid to B., who wrote to C. as follows: “ Are we now to understand that this machine is completed in every respect as per contract, and ready to be set up for operation i ” C. replied as follows: “ While A.’s agreement is fulfilled, the machine is not ready to send, as I am putting it in shape and running it in at my expense, as I told him I would do when he took it at $400.'” Work was afterwards done and materials furnished by A. in changing and reconstructing the machine, to recover for which he brought an action against B. There was nothing to show that C. ever directed A. to work upon the machine after the contract was completed in any other way than as represented in C.’s letter to B. Held., that the action could not be maintained.</p>

<p>Sale — Passing of Title —Vendor’s Lien — Finding.</p> <p>If the vendor, upon receipt of the vendee’s acceptance of an offer to sell goods at a certain price for cash, weighs the goods, sets them apart and marks them for the purpose of designating them as the vendee’s property, and at once sends the vendee a bill of them marked “ Cash on demand,” the sale is completed, and the title passes, subject to the vendor’s lien for the price.</p> <p>If the vendor, upon receipt of the vendee’s acceptance of an offer to sell sixty tubs of butter of a certain quality, appropriates to the vendee sixty tubs as butter of the quality called for, and sends the vendee a bill giving the separate weight and tare of each tub, and afterwards shipments are made from time to time of forty tubs, which are accepted and paid for without objection by the vendee, who directs the shipping to him of the remaining twenty tubs, which is not done on account of a dispute between the parties as to the terms of payment, in an action for the price, a finding that the butter answered the requirements of the contract will be warranted.</p>

<p>Partnership — Personal Liability of Ostensible Partner — Estoppel — Equity — Rights of Creditors of Ostensible and Actual Partners.</p> <p>Although an ostensible partner in a firm may be personally liable, on the ground of estoppel, to a creditor who has trusted the firm on the strength of the farmer’s supposed membership, the latter is not entitled to have the property which was in the possession and use of the firm applied to the satisfaction of his claim in priority to the creditors whose claims are only against the actual partners.</p>

<p>Insolvency Court — Record—General Warrant— Composition — Assignee.</p> <p>The record as made up or amended by direction of the judge of insolvency is conclusive evidence of the doings of the court, and paroi evidence is inadmissible to contradict it.</p> <p>Where, a debtor having filed a voluntary petition in insolvency and two days thereafter a proposition for composition, certain creditors then make application to the judge of insolvency for the issuing of a warrant in the interest of the creditors for the preservation of the property pending proceedings for a composition, it is entirely proper for him, in the exercise of the jurisdiction conferred by the filing of the debtor’s original petition, to issue a general warrant, as if no proposition for composition had been filed.</p> <p>Where an offer of composition is filed and an assignee is not appointed at the first meeting, the judge of insolvency may appoint one at a subsequent meeting.</p>

<p>Contract upon a policy of insurance upon a horse owned by the plaintiffs. Trial in the Superior Court, without a jury, before Blodgett, J., who reported the case for the determination of this court, in substance as follows.</p> <p>On October 3, 1893, the plaintiffs were resident in Concord, New Hampshire. The horse was in charge of a trainer, named Cox, resident in Manchester in that State, and was kept at a race track in Pittsfield, in the same State, in charge of an agent of Cox. At about five o’clock in the afternoon of October 3, 1893, Cox was notified by telephone that the horse was unwell, and thereupon he procured a competent veterinary surgeon in Manchester and drove about twenty-eight miles to Pittsfield, arriving at ten or eleven o’clock at night, and was with the surgeon in attendance all night on the horse at the stable where he was kept, some two miles from any telegraph or telephone station. At about six or seven o’clock in the morning, Cox went to the telephone station and notified Mudgett, one of the owners of the horse at Concord, that the horse was very sick. Mudgett thereupon procurred another competent veterinary surgeon and drove some twenty miles across country to Pittsfield, arriving there at about ten o’clock in the morning. The horse died at about one o’clock, having been sick more than fifteen hours. Pittsfield is-a town connected by railroad and telegraph with Boston, but it did not appear at what times trains for Boston left Pittsfield. It did not appear that either of the owners of the horse knew how long the horse had been sick until Mudgett arrived at Pitts-field, about three hours before the horse’s death ; nor did it appear whether Cox had any knowledge concerning the conditions and agreements of the policy, or in what company the horse was insured. No notice was given to the defendant, a Massachusetts corporation, whose home office was in Boston, until after the horse was dead, and there was no evidence beyond what is stated above why such notice was not given.</p> <p>The plaintiffs contended, and the judge found, that the horse during his sickness was treated by competent veterinary surgeons.</p> <p>The fourth of the conditions and agreements in the policy was as follows : “ If the animal shall become sick or disabled, the insured shall notify the company within fifteen hours, and the company may send one of its veterinarians to treat the case, if in its -discretion it is deemed necessary or expedient.”</p> <p>The judge ruled that the plaintiffs could not maintain their action, and the plaintiffs excepted. If the ruling was right, judgment was to be entered for the defendant corporation; otherwise, judgment was to be entered for the plaintiffs.</p>

<p>Two actions OF contract, the first being against the surviving partner of the firm of James O. Safford and Company, and the second against the administrators of the estate of James O. Safford, to recover for work and materials furnished by the plaintiffs to the Grahamite and Trinidad Asphalt Pavement Company of the city of New York in repairing the pavement of Pennsylvania Avenue in the city of Washington. The cases were tried together in the Superior Court, without a jury, before Hammond, J., who found for the plaintiffs in each case; and the defendants alleged exceptions. The facts appear in the opinion.</p>

<p>Contract, to recover the price of 5,014 pounds of “ F C wool,” alleged to have been sold by the plaintiff to the defendant. The answer, among other defences, set up the statute of frauds. At the trial in the Superior Court, before Mason, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Equity Practice — Finding of Single Justice — Failure of Consideration.</p> <p>A decree of a single justice of this court sitting in equity, in a cause heard before him on oral evidence, and which is heard in this court on appeal upon a report of the same evidence only, will not be reversed on a question of fact, unless it clearly appears to be erroneous.</p> <p>Where a conditional promise is a consideration, the failure of the condition is not a failure of the consideration.</p>

<p>Contract, for breach of the following agreement under seal, dated June 14, 1893, and executed by the defendant as the party of the first part, and the plaintiff as the party of the second part: “ Whereas the party of the first part is desirous of having the party of the second part extend to John Berry . . . certain credits byway of furnishing the said John Berry with groceries, provisions, and comestibles at Cordaville, Mass., and along the line of the Portland and Rumford Falls Railroad Company, in the State of Maine, during the continuance of the works to be at those places performed by the said John Berry. Now, therefore, I, Luigi Missocchi, party of the first part, in consideration of the sum of one dollar to me in hand paid by Luigi Silvestri, party of the second part, hereby guarantee the payment of any and all accounts contracted by the said John Berry with the said party of the second part, arising out of any and all credits extended by the said party of the second part to the said John Berry for goods furnished as aforesaid to either Cordaville, Mass., and along the line of the Portland and Rumford Railroad Company, in the State of Maine. The said bill or bills, account or accounts, to be paid by the party of the first part to the party of the second part on presentation and demand of payment. And the said party of the second part, for the consideration of the above guarantee, hereby agrees to furnish the said John Berry above mentioned with such'groceries, provisions, and merchandise as the said John Berry may order to be sent to the places and destinations above set forth, and will present to the said John Berry and the party of the first part monthly statements of all gopds sent thereto.”</p> <p>The declaration alleged that “ by the terms of the agreement the defendant agreed with the plaintiff to pay for all goods furnished by the plaintiff to one John Berry, at Cordaville, and at points along the Portland and Rumford Falls Railroad, in Maine. And the plaintiff says that under and by reason of said agreement, and on the strength thereof, he furnished to said Berry at such places certain goods, according to the account annexed; that he has demanded payment for said goods from said Berry, who neglects and refuses to pay the same, and he has demanded payment of said goods from the defendant, and the defendant has refused and still refuses to pay for the same, and to carry out his part of said agreement.”</p> <p>The answer was: 1. A denial that by the terms of the agreement the defendant agreed to pay for all goods furnished by the plaintiff to Berry. 2. That the defendant was ignorant whether the plaintiff furnished goods to Berry in accordance with the terms of the agreement, and left the plaintiff to prove the same. 3. That, by the terms of the agreement, the plaintiff agreed to present to the defendant monthly statements of all goods sent to Berry to the places set forth in the agreement, but that the plaintiff had failed so to do.</p> <p>The case was referred to an auditor, who made the following report:</p> <p>“ The defendant contended that the plaintiff was not entitled to recover upon the .pleadings, as there was no allegation of any demand on Berry, or of any neglect or refusal on his part to pay the bill; and, further, that the declaration was inconsistent with the guaranty, in that the declaration alleges that the defendant agreed to be responsible for all goods furnished, while the guaranty was limited to goods furnished at Cordaville, and at points along the Portland and Rumford Falls Railroad, in the State of Maine; but I ruled that the declaration was sufficient. It appeared in evidence that Berry was a contractor and employer of Italian laborers; that in June, 1893, he was desirous to obtain supplies from the plaintiff and get credit therefor; and that on or about June 14,1893, the plaintiff and defendant executed the agreement under seal. I find that the plaintiff, after the execution of the agreement, furnished to Berry, under the same, at Lewiston and Mechanics Falls, both of which are on the line of the Portland and Rumford Falls Railroad, in the State of Maine, all of the goods described in the bill of particulars annexed to the declaration, except that the amount11 of item 11 should be $392.83 instead of $393.83; that the prices charged are reasonable and proper; that shortly after each shipment the plaintiff sent a bill or statement thereof to both the defendant and Berry; that all credits have been given; and that the defendant owes the plaintiff the sum of $1,941.79 therefor, with interest from the date of the writ.</p> <p>“ The defendant contended that there was no evidence to justify a finding that the goods had been delivered in accordance with the terms of the guaranty. It appeared that the goods were ordered by Berry; that they were packed in the store of the plaintiff in Boston, and marked for John Berry, at Lewiston or Mechanics Falls; that bills of lading were made out by the plaintiff or his clerk; that the packages and bills of lading were given to an expressman to take to the freight office in Boston ; and that the bills of lading, with what purported to be a receipt from some one at the freight office, were returned to the plaintiff by the expressman ; and that no complaint that the goods were not received was ever made by Berry. I ruled that this evidence justified a finding that the goods were furnished according to the terms of the guaranty, and so found. The plaintiff did not pay any freight charges. The plaintiff included in his bill the charges for cartage of the goods by the expressman to the freight station. The defendant contended that these charges were not within the guaranty; but I ruled that the guaranty would cover the reasonable and proper charges for forwarding the goods, and allowed the items. If this ruling was erroneous, the above finding for the plaintiff should be reduced eight dollars and ninety cents.</p> <p>“ Among the goods charged for by the plaintiff were cigars and tobacco, which the defendant contended were not covered by the guaranty. On this question the following agreement was made: ‘ If evidence is competent, it is agreed that the plaintiff’s witnesses would testify that contractors, like John Berry, furnished and were in the habit of furnishing to their employees in the line of the work, and from the “ Commissary ” so called, tobacco and cigars, as they furnished macaroni, cheese, and sausages; that where contractors like Berry ordered goods from dealers like Silvestri, they included and were in the habit of including in such orders cigars and tobacco, as they included macaroni, cheese, and sausages; and that Missocchi when he signed the guaranty knew this.’ I was of opinion that the evidence was not competent, and excluded it, but ruled that cigars and tobacco were within the terms of the guaranty, and allowed the items therefor. If this ruling was erroneous, the amount due from the defendant to the plaintiff should be reduced by the sum of one hundred and twenty-eight dollars and ten cents.”</p> <p>At the trial in the Superior Court, without a jury, before Richardson, J., the plaintiff put in the auditor’s report and guaranty, and rested. The defendant, who offered no evidence, requested the judge to rule that the plaintiff could not maintain his action. The judge refused so to rule, and found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ as a freight conductor. At the trial in the Superior Court, before Blodgett, J., there was evidence tending to show that the plaintiff, while in the exercise of due care, and in the performance of his duties, stepped on to the railroad track in Newburyport, in front of a coal car, for the purpose of unsetting a brake; that after he had effected this he turned to step off the track, caught his foot in an unblocked guard-rail, was thrown down and run over by one or more wheels of the car, on account of which it was necessary to amputate his leg ; that after the accident the train was divided, and the plaintiff, who remained on the ground for a few minutes, was then removed to the side of the track, and was afterwards taken to the hospital in Newburyport; and that while he was so lying on the ground, or about the time when he was taken up, he made a statement to one Holland as to how the accident happened. Holland, who was a brakeman and saw the accident, testified that he got to the plaintiff within a minute after the accident.</p> <p>“ Q. Before he got up, and while he was there, did he state to you how it occurred ? A. Not before I got to him.</p> <p>“ Q. When you got there, I say. A. No, sir.</p> <p>“ Q. Did he at any time make a statement of how it happened? A. He did.</p> <p>“ Q. Now, I want to know when that was? A. Well, it was n’t more than — time flies very quick — it was n’t more than five minutes after I split the cars and took him out.</p> <p>“ Q. Not more than five minutes ? A. No, sir, I don’t think it was.</p> <p>“ Q. Was it before you had taken him up, or after you had taken him up? A. I think it was about the time we were taking him up.</p> <p>“ Q. Now I want to refresh your memory a little. I want to know now if you told me in the court-room yesterday, in the anteroom yesterday, that he made the statement to you within a half-minute after the accident happened? A. No, sir, I don’t think I did; I might have said it, but I don’t think I did. Half a minute after it happened is a very short time.</p> <p>“ Q. Now, you put it how long after it happened ? A. About five minutes, I should, judge; time flies very quick.</p> <p>“ Q. You say it was about the time he was taken up from the track ? A. Yes, about the time we were taking him out.”</p> <p>The witness would have testified that the plaintiff stated that the accident was caused by catching his foot in an unblocked guard-rail, and was asked what the statement of the plaintiff was; but it was excluded, and the plaintiff excepted.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract, upon a policy of insurance for $200, issued by the defendant upon the life of a horse. Trial in the Superior Court, before Dunbar, J., who, after a verdict for the plaintiff, directed that the plaintiff be nonsuited because the action was prematurely begun, and, with the consent of the parties, reported the case for the determination of this court. If the ruling was correct, the nonsuit was to stand; otherwise, judgment was to be entered on the verdict.

Tort, for personal injuries occasioned to the plaintiff, on Sunday, August 13, 1893, by falling through a hole in the floor of a room in the defendant’s station in Holbrook. 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.

Tobt for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant’s servant. Trial in the Superior Court, before Sherman, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Libel — False Imprisonment — Malicious Prosecution — Probable Cause — Pleading — Practice.</p> <p>A complaint made to a court of competent jurisdiction in the regular course of justice, and containing no impertinent allegations, is not deemed an actionable libel.</p> <p>Arrest and detention upon due process of law are not assault and false imprisonment.</p> <p>Conviction in the court to which a complaint is made shows conclusively that the complaint was made with probable cause.</p> <p>A plaintiff who cannot maintain his action against either one or both of two defendants is not harmed by being compelled to elect to discontinue as to one defendant, or by having a verdict ordered for the other defendant.</p>

<p>Two ACTIONS OE CONTRACT, for use and 'occupation of a store in Boston, the first being to recover rent from August to December, 1893, inclusive, and the second for the months of January and February, 1894. The cases were tried together in the Superior Court, before Blodgett, J., who reported them for the determination of this court, in substance as follows.</p> <p>The plaintiff testified that he first let the premises in question, 34 Dearborn Street, to the defendant in 1881 or 1882, under an oral agreement, at $37.50 per month ; that in August, 1893, the defendant was his tenant; that it was his custom to collect the rent every month at the store; that he collected $32.50 for the month of August, 1893, which left a balance of five dollars; that for the months of September, October, November, and December, 1893, and of January and February, 1894, he collected nothing; that the defendant in June, 1893, gave or sent him a notice, dated April 5, 1893, in regard to these premises: “ From this date you will please collect your rent from Mr. J. D. Mc-Bain, as I have disposed of my store to said McBain ”; and that he received from the defendant after he had sent the defendant a bill, a second notice, which was dated December 7, 1893, and was as follows: “ I have just received by mail a bill sent, I presume, by you, and which appears upon its face to be a claim for store rent of $117.50. When I sold my business to Mr. McBain in April last, I notified you that my tenancy ceased. You have since collected your rents from Mr. McBain, who occupies the store and owns the business conducted therein. I therefore very respectfully decline to recognize your claim.” The plaintiff also testified that he received a further notice from the defendant, which was dated February 23,1894, and was as follows: “ Without admitting any liability for back or future rent but to protect my rights pending the appeal of the suit brought by you against me, I hereby notify you that I shall, on March 31st, 1894, quit and deliver up the premises now alleged by you to be held by me as your tenant at 34 Dearborn Street in this city ”; that, as he recollected, he received no other communications from the defendant; and that he presented bills for rent at the store every month.</p> <p>Upon cross-examination, the plaintiff testified that he lived next door to the store, and had so lived for at least twenty-five years prior to the time of the trial; that he got the rent for the month of April, 1893, the last of the month of May, 1893; that the rent for the month of April was due on the 1st of May; that the April rent “ was paid in the store by Mr. McBain, who was a young man that the defendant claimed to sell out to”; that he knew at the time he received the first notice that the defendant then claimed to have sold out on the 1st of April, 1893, to McBain; that when McBain paid the April rent he told the witness either that he had bought the defendant out, or was going to buy him out, and said something about having given a mortgage to the defendant in part payment; that McBain paid the May rent somewhere from the first to the middle of June; that McBain paid all the rent that was paid there after the 1st of April, 1893, and the June rent was paid about the 1st of July; that when he received the first notice he had a conversation with the defendant, who himself handed the notice to the witness, who was at the time in the store, and that McBain was present; that on the day the notice was received by the witness the defendant wanted to know if the witness had not got the notice, and the witness told him he had not; that the defendant turned to a drawer and took the notice out, and handed it to the witness; that at the time the witness received the notice he read it; that after the rent was not paid at the store, he sent a bill to the defendant in the fall of the year; and that he “ often went into the store and asked the question if they had no money for ” him.</p> <p>James B. McBain was called as a witness by the plaintiff, and testified, in substance, that he was a druggist, and on April 4, 1893, took charge of the store at 34 Dearborn Street, and remained there until February, 1894, and during this period received rent bills for the store from the plaintiff every month; that he had not in his possession the rent bills for the months of May, June, July, or August, 1893; that they had been in bis possession, but had become lost in some way; that he had in his possession a bill presented to him after the 1st of August; and that the bill in question ran to the defendant, as did the other bills throughout the time that the witness was in the store, and the bill was in the same form as the other bills.</p> <p>Upon cross-examination, the witness testified, among other things, that the bill spoken of as presented to him after the 1st of August was not receipted, and he never paid a cent of rent after that bill was made out; that he executed a mortgage and note, which were put in evidence by the defendant, the note being for $1,500, dated April 4, 1893, signed by the witness, and payable to the order of the defendant, and on which there were various indorsements of payments, and the mortgage being in ordinary form to secure the above note and covering the personal property contained in the store, signed by the witness and running to the defendant; and that the witness thought that the defendant was in the store from the 4th of April up to ¡November or December, 1893, as often as once a week.</p> <p>The defendant testified, in substance, that he had occupied the store in question since about 1882 up to the time he made a sale of the store and his business to McBain, which was on April 4,1893 ; that McBain gave the note and mortgage already referred to; that after the sale to McBain he wrote to the plaintiff the first notice above set out, and went to the plaintiff’s house to deliver it; that he rang the bell three different times, and, as no one appeared at the door, he then carried the note into the store and instructed one of the clerks to deliver it to the plaintiff; that he first saw the plaintiff after that on the first day of May, 1893, at the store; that the plaintiff said, “ Have you sold out here?” and he answered, “Yes, didn’t you get your notice?” to which the plaintiff replied, “ This is the first I have heard of it”; that the witness then spoke to his clerk and asked him if he had n’t delivered the notice, and he said he had not seen the plaintiff; that the witness then went to a drawer and took the notice and delivered it to the plaintiff; that the plaintiff read it, but didn’t say anything; that there was no other conversation with reference to this matter; that he did not receive any kind of notification or information from the plaintiff that the rent was in arrears until he got the bill in December, 1893; that the plaintiff did not in any way inform him, between the time he got that notice and this time, that he was looking to him for the payment of the rent; that he had not received any rent bills; that he delivered the keys of the store to McBain at the time of the sale; and that they were the same keys which the plaintiff gave to the witness when he went into the store in 1882.</p> <p>Upon cross-examination, the witness testified, among other things, that McBain had formerly worked for him as clerk; that when the bill of sale was given to McBain the witness did not remove his sign from the building; that the sign remained there from the last of April, 1893, until the following March; that the witness did not remember seeing any other sign on the outside of the premises, and he made no objection to McBain to his sign remaining there; that when he sold out he had in the store bill-heads or prescription blanks with his name on them, and that he did not remove these.</p> <p>At the conclusion of the evidence, the defendant admitting that the amount claimed was due if he was a tenant of the plaintiff during the time, the judge directed the jury to return a verdict for the plaintiff in both cases. If the ruling was right, judgment was to be entered for the plaintiff in each case; otherwise, judgment was to be entered for the defendant.</p>

<p>Complaints to the Police Court of Lowell, under St. 1893, c. 262, entitled “ An Act relative to evidence in proceedings for neglect to support a wife or minor child.” The first complaint was made December 17, 1894, and charged that the defendant unreasonably neglected to support his wife, Sarah Ella Simmons, from November 3, 1894, to that date. The second was made January 9, 1895, and contained three counts. By the first count the defendant was charged with unreasonably neglecting to support his minor son, Warren H. Simmons, from December 18, 1894, to January 9, 1895; by the second, his minor son, Herbert A. Simmons, during the same time; and by the third, his wife, also during the same time.</p> <p>At the trial in the Superior Court, before Richardson, J., it appeared that on December 13, 1894, the defendant filed in that court his libel for a divorce from the complainant in these prosecutions; that she was served with notice thereof on December 15, 1894, and defended the same; and that after a hearing on February 18, 1895, the libel was dismissed. The complainant and defendant had not lived together since October 30,1894. The defendant offered in evidence a motion filed by the libellee in the suit for divorce on January 18, 1895, praying for “ an order directing the libellant to pay to her a suitable sum for the support of herself and their children during the pendency of this libel; also that he may be ordered to pay into court a suitable sum to enable her to defend said libel.” Upon this motion, after a hearing on February 1, 1895, the judge made the following order : “ Motion for alimony denied. $30 ordered to be paid into court on February 11,” to enable her to defend the libel.</p> <p>The defendant also offered evidence tending to show that upon the dismissal of the libel the libellee orally moved for an allowance of alimony pendente lite, and for costs of suit, but that the court denied both parts of the motion. The court excluded the motion and the other evidence, on the ground that the proceeding on the libel for divorce was not a bar to the prosecution of these complaints.</p> <p>The defendant asked the judge to rule that the jurisdiction of the Superior Court over him and his wife and children at the times of the making of these complaints was complete and exclusive, and that the police court had then no authority to receive the complaints ; also, that the question whether the defendant had unreasonably neglected to support his wife or either of his minor children, as alleged in the complaints, had been decided in his favor by the denial of said motions for alimony pendente lite. The judge refused so to rule, and the jury returned a verdict of guilty on both complaints, and on each of the counts in the second complaint.</p>

Writ of entry, dated December 22, 1894, to recover a parcel of land in Cottage City. Plea, nul disseisin. Trial in the Superior Court, without a jury, before Hopkins, J., who allowed a bill of exceptions, in substance as follows. The demandants produced and offered in evidence a promissory note, a mortgage deed of the demanded premises given to secure payment of the note, and a certificate of entry made upon the premises for the purpose of foreclosing the mortgage.

<p>Contract, upon a guaranty signed by the defendant. 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>Personal Injuries — Master and Servant — Dangerous Machine — Risks of Employment — Action.</p> <p>If an employer places a guard on a machine in order to make its operation safer, although it may not have that effect, a person who has for nearly three years been employed upon the machine, which had the guard on it when he entered upon his employment, and which is not itself defective, and who is injured while so operating it by the alleged action of the guard, must be held to have assumed the risk of operating the machine with the guard on, and cannot recover for his injuries.</p>

<p>Contract. The declaration was a count upon an account annexed for work done and materials furnished. The answer was: 1. A general denial. 2. That the plaintiff made an oral agreement with the defendants to build for them a perfect working “ shank machine,” the plaintiff to furnish all drawings, materials, labor, etc., and deliver the machine in perfect working order at the defendants’ factory for the sum of two hundred and twenty-five dollars, in three weeks from the date of the agreement; but that the plaintiff failed to build or deliver the machine to the defendants according to the agreement.</p> <p>The case was referred to an auditor, and was tried in the Superior Court, without a jury, before Lilley, J., upon the report of the auditor, who found for the plaintiff. The evidence introduced by the plaintiff tended to show that he never agreed to build a shank machine which would do the work, but that the agreement was that he would build a machine according to certain drawings made by his draughtsman, of which the defendants had approved; and that introduced by the defendants tended to show that the plaintiff agreed to build a shank machine which would do the work, that is, cut shanks such as those which .were shown to and left with the plaintiff. There was evidence that the plaintiff built the machine according to the drawings, but that it would not do the work. The defendants requested the judge to rule that the plaintiff could not recover. The judge refused so to rule, and found for the plaintiff; and the defendants alleged exceptions.</p>

<p>Assessment and Abatement of Poll Tax — Mandamus.</p> <p>If a poll tax is assessed upon a person who is in the judgment of the assessors unable to contribute fully towards the public charges, within the meaning of Pub. Sts. c. 11, § 5, cl. 12, or upon a person not an inhabitant of the city or town, it is within the power of the assessors of their own motion to abate the tax, as a tax which ought not to have been assessed; and them right so to abate it for the purpose of preventing the person from gaining a settlement in the city or town cannot be tried in a petition for a writ of mandamus brought against the collector of taxes to compel him to receive payment of the tax after it has been abated.</p>

<p>Tort, against George E. Rogers and P. Briggs Wadsworth, to recover the value of twenty-five shares of the stock of the Union Pacific Railway Company, and the value of a promissory note of one C. C. Homer for $269.90, alleged to have been wrongfully withheld from the plaintiff, and converted by the defendants to their own use. Writ dated June 15,1891.</p> <p>After the former decision, reported 162 Mass. 47, the case was tried in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that, in June, 1888, he was engaged in building a block of brick houses on Dalton Street in Boston; that he asked the defendant Rogers, who was a real estate broker, if he could get him a customer for some of his buildings, and Rogers said that he could; that shortly afterwards Rogers informed him that he had a customer for the house 25 Dalton Street, who would, among other things, give some land in Chelsea and Melrose in exchange, and wanted him to look it up ; that the plaintiff looked over the property in question, and told Rogers that he would trade for it; and that Rogers then brought him a paper to sign, which he did sign. By this instrument, which was dated August 28, 1888, and w-hich is referred to as “ Exhibit 2,” the plaintiff agreed to sell and convey “to the order of George E. Rogers and P. Briggs Wadsworth ” a parcel of land with the buildings thereon, situated on Dalton Street in Boston, receiving in payment therefor the real estate and personal property named and described in a memorandum annexed to the agreement, and “ to pay to George E. Rogers and P. Briggs Wadsworth a brokerage commission of three hundred and fifty dollars.”</p> <p>The several parcels of real estate and articles of personal property named in the memorandum annexed to the agreement, with their respective values, were: 18,400 feet of land, Summer Street, Chelsea, $2,300; 14,080 feet of land, Melrose, $2,112; 5,000 feet of land, Orange Street, Chelsea, $2,000; lease on Chestnut Street, Boston, guaranteed to net $925 ; 2 shares Leavenworth and Topeka Railroad stock, $200; amounting in all to $7,537.</p> <p>On September 5, 1888, the plaintiff signed another paper, referred to as “ Agreement C,” which recited that he agreed “ to accept in payment for said lot and building ” the parcels of real estate and the personal property named in the above memorandum, and which also contained a statement, signed by the defendants, that they “ hereby agree to place mortgage, one year at six per cent, one thousand dollars on Orange Street land as soon as it is available, and meantime to advance one thousand dollars on agreement to give said mortgage, taking temporarily said lease and stock as collateral that mortgage shall be given.”</p> <p>On August 28, 1888, one Alfred Blanchard also agreed in writing to sell and convey “ to the order of ” the defendants certain parcels of real estate and certain articles of personal property, agreeing to receive in payment therefor the house of the plaintiff, on Dalton Street in Boston, and to pay to the defendants “the usual brokerage commission of two and one half per cent on value of land as per above schedule.”</p> <p>The schedule referred to was as follows: 18,400 feet land, Summer Street, Chelsea, $1,840 ; 5,000 feet land, Orange Street, Chelsea, $2,000; 25 shares Union Pacific OI^q-, $1,537.50; 14,080 feet land, Melrose, $1,408; lease, Chestnut Street, Boston (guaranteed), $925; note due September 29 (guaranteed), $269.90; amounting in all to $7,980.40.</p> <p>The plaintiff further testified as follows: “ I carried out the agreement or agreements that are in Exhibit 2, and received the conveyance of all the property described therein, including the Chelsea and Melrose property, and the two shares of Leavenworth and Topeka stock, and conveyed the Dalton Street house to Alfred Blanchard’s wife. Subsequently, at Rogers’s request, I signed an order on Blanchard for the personal property described in Exhibit 2. I paid a commission of $350 to the defendants, being the amount required by Exhibit 2. I did not know, until informed by Blanchard about a year afterwards, that the defendants had received as part of the purchase money of said house the 25 shares of Union Pacific Railroad stock and the Homer note. Shortly after I learned this I demanded the stock and note of Rogers. He declined to deliver them, and said that they did not belong to me. My counsel made a formal demand, on July 10,1890, on the defendants, for the stock and note. I did not meet Blanchard until a considerable time after the trade was carried out. The defendants performed everything which they in Exhibit 2 agreed to perform, about placing a mortgage and advancing $1,000. I have never given up or offered to give up to the defendants the Leavenworth and Topeka stock, or to pay them any compensation for their services in taking the mortgage on the property referred to in Exhibit 2. I did not consider the Leavenworth and Topeka stock worth anything when I took it, and did not know that Rogers owned it, but supposed, until a long time afterwards, that Blanchard owned it.”</p> <p>Upon the order for the delivery of the personal property the defendant Rogers wrote: “ Received of Alfred Blanchard, in compliance of this order, 25 shares of stock of Union Pacific Railroad, at $61.50 per share, $1,537.50 ; lease of estate, 43 Chestnut Street, Boston, $925.00; note of C. C. Homer, Maiden, Mass., due Sept. 29 - Oct. 2,1888, $266.90. Same being in full to cover the personal property described in an agreement of Alfred Blanchard to purchase of Wm. Bassett estate of Dalton Street, Boston. Geo. E. Rogers, and for P. Briggs Wadsworth.”</p> <p>Alfred Blanchard, a witness called by the plaintiff, testified that he carried out his part of the trade, and delivered to Rogers all the property which he agreed to transfer in exchange for the house, and paid him the commission called for by the agreement; that, when Rogers brought the order from the plaintiff for the delivery of the property, the witness said he did not care to deliver on that, and wanted to enumerate what he was to deliver; that he then wrote across the face of it a detail of the property, and Rogers signed it; that he then delivered to him the twenty-five shares of Union Pacific stock and the Homer note ; and that in February, 1889, the witness informed the plaintiff that the Union Pacific stock and the Homer note were a part of the property which he had given in exchange for the house.</p> <p>The defendant Rogers, after testifying to an interview with Blanchard in relation to trading for the plaintiff’s house on Dalton Street, further testified, among other things, as follows: “ I sent for the plaintiff and told him that I had a friend who was thinking of buying an apartment house; that I could sell him one of several, or I could sell him his. He asked me what he would give, and I said, ‘ There .are some things which he will give that I will give you, and some things I won’t give you.’ He asked if there was any cash in it. I said no, but that there were some things as good as cash, and that I should keep them myself if the trade was put through. I made a minute on an envelope, and showed him a list of the different items of property which I proposed to give him, which list included all on the Blanchard list, except the Union Pacific stock and note, and added thereto the Leavenworth and Topeka stock. In a day or two he came in and said that he would like to make the trade, and was willing to pay me a double commission, as he would have to pay it to some one. I sent for Blanchard and told him that I could put the sale through. The plaintiff asked me what I was going to get out of it; I told him that I should tell him when the papers were signed. In my conversation with Blanchard I told him that some of the items which he exchanged or gave in trade I should keep, and some I should give to the plaintiff. I said that I thought I should keep the Chestnut Street lease, the Union Pacific stock, and the Homer note. The papers were exchanged shortly afterwards. . . . The Leavenworth and Topeka stock was not stock which I received from Blanchard, but was some of my own.”</p> <p>The plaintiff called an expert witness, and offered to prove by him the value of Leavenworth and Topeka stock; but the defendants objected to the introduction of such evidence, and it was excluded.</p> <p>The defendant Rogers, being asked on cross-examination if he regarded Leavenworth and Topeka stock as of much value, replied, “ I do not think it has much value.” While this defendant was on the stand the plaintiff handed to him the certificate of the two shares of that stock in question, duly assigned in blank, and offered to make him a present of it, but he rejected it, and cast it upon the floor.</p> <p>The defendants requested the judge to instruct the jury as follows:</p> <p>“ 1. Exhibit 2, with its accompanying papers, if accepted by the defendants, constituted a contract between the plaintiff and the defendants, binding the plaintiff to sell to the order of the defendants the Dalton Street house for certain considerations therein named. If the defendants had fully performed their part of said contract, and the plaintiff has received all the benefits of the contract, the plaintiff cannot now repudiate the contract without -returning, or offering to return, the considerations which he has received.</p> <p>“ 2. As the plaintiff has not returned, or offered to return, to the defendants the Leavenworth and Topeka stock, or to make compensation in any way to the defendants for the benefits sustained by the plaintiff for the loan of $1,000, he is not entitled to maintain this action.</p> <p>“ 3. The plaintiff’s action cannot be maintained because he has not rescinded or offered to rescind the contract shown in Exhibit 2.”</p> <p>The judge declined so to rule, and instructed the jury in terms to which no exception was taken.</p> <p>The jury returned a verdict for the plaintiff in the sum of $2,201.73 ; and the defendants alleged exceptions.</p>

<p>Contract, upon a promissory note, made “ payable at any bank in Boston,” to the order of the defendant, and by him indorsed. Trial in the Superior Court, without a jury, before Mason, C. J., who, at the defendant’s request, ruled that the Massachusetts Loan and Trust Company, at whose office in Boston the note was presented for payment, was not a “ bank ” within the meaning of the note, and that the defendant could not be held as indorser. The plaintiff alleged exceptions.</p>

<p>Will—Sanity of Testator—Examination of Witnesses — Exception — Discretion of Judge — Expert Witness — Evidence.</p> <p>While, at the trial of the issue of a testator’s sanity, it is necessary for the executors to call all the attesting witnesses, if they are accessible, there is no rule of law which requires them all to be examined at the outset, and the order in which they shall be called is a matter within the discretion of the presiding justice; and if it appears that two days after the first attesting witness had been called, and while the executors were engaged in putting in their case in chief, the contestants objected to their proceeding further until they should call the other attesting witnesses or account for their absence, which objection was overruled, and that the executors agreed that the contestants should have the same benefit of this objection, which was taken on the third day of the trial, that they would have had if they had made it at the conclusion of the testimony of the first attesting witness, the counsel for the contestants cannot argue that he now has an exception to the reading of the will to the jury at the time it was read, which he contends was after the testimony of only one attesting witness, although the will was actually read without exception or objection.</p> <p>At the trial of the issue of a testator’s sanity, it is within the discretion of the judge to fix the limits of time before and after the making of the will within which evidence tending to show specific acts of unsoundness of mind on the part of the testator should be confined, and to exclude testimony outside of those limits.</p> <p>At the trial of the issue of a testator’s sanity, after a long hypothetical question has been put to an expert witness in direct examination and he has answered it, it is proper in cross-examination to bring out clearly to the jury that the answer rested simply on a one-sided statement of assumed facts, and that no facts which might have been proved to the satisfaction of the jury or the other side were or could have been taken into account by the witness.</p> <p>An exception to the exclusion of evidence to contradict a witness will not be sustained, if, at the stage of the case when the evidence is excluded, the matter is entirely within the discretion of the judge.</p>

<p>Bill in equity, filed in the Superior Court, April 30, 1895, under Pub. Sts. c. 151, § 2, cl. 11, and St. 1884, c. 285, against Carl 'E. Steere and James H. Wheeler, Jr., partners under the firm name of Stedman, Steere, and Wheeler, the National Bank of the Republic, the Blacks tone National Bank, the National Hide and Leather Bank, the National Bank of Redemption, the Hamilton National Bank, and Marshall A. Phillips, to reach and apply property of Phillips, which could not be attached or taken on execution in an action at law.</p> <p>The bill alleged that the plaintiff recovered judgment against Phillips to a certain amount, and held certain notes against him which were overdue and unpaid; that Phillips, at the time of making the agreements and conveyances hereinafter set out, was financially embarrassed and insolvent, and was then known to the defendants to be insolvent; that Phillips, in November, 1892, was indebted to the defendant banks, and to other parties to the plaintiff unknown, upon certain promissory notes and drafts which Phillips had procured to be discounted by the banks and the other parties, through the agency of Stedman, Steere, and Wheeler, who were a firm of note brokers; that the discounts had been procured by means of representations made in writing and signed by Phillips, purporting to be a correct statement of his financial condition, which statement was given by him to Stedman, Steere, and Wheeler to be used by them in disposing of his said notes and drafts; that the statement was so used and shown by them, and on the faith of it the defendant banks took the notes and drafts, and parted with their money to Phillips; that the statement and the representations therein were false, and were made and used as false and fraudulent pretences by Phillips to procure money; that Phillips in November, 1892, knew that he was insolvent, and agreed with the plaintiff to make a distribution of his assets ratably among all his creditors, including the plaintiff, and to assign all his property for the equal benefit of all his creditors, and promised the plaintiff that he would not prefer any creditor; that Phillips thereafter, because and in pursuance of the illegal agreement made with the defendant banks and others, as hereinafter set forth, did not make an assignment for the equal benefit of all his creditors, including the plaintiff, but did transfer to the defendants all his property upon the agreements and in the manner hereinafter set forth; that in December, 1892, Phillips agreed with Stedman, Steere, and Wheeler, and the defendant banks, and the other parties unknown, to make conveyance to the banks and other parties of real estate owned by Phillips situated without the Commonwealth, and also to transfer to the banks and other parties stocks and bonds in certain corporations named, and certain other choses in action; and in consideration of said transfers and conveyances Stedman, Steere, and Wheeler, and the banks and other parties, severally agreed to surrender to Phillips, or his agents, the notes and drafts, and the signed statement containing the false representations as to his condition, which were in the possession of Stedman, Steere, and Wheeler, and the banks, and other parties, and to conceal the false and fraudulent representations which Phillips had made, and never to prosecute Phillips or procure his prosecution for obtaining money by false pretences, or for any other offence committed by him in the transactions, but to deliver over to Phillips or his agents all evidences held by Stedman, Steere, and Wheeler, and the banks and other parties, of said false and fraudulent pretences and representations, and never to give evidence thereof; that Phillips did make the transfers and conveyances to the banks and other parties as agreed upon; that the banks and other parties received the title to the real estate, bonds, and choses in action, and surrendered to Phillips all the notes and drafts by them held, and procured the surrender by Stedman, Steere, and Wheeler of said statement, and surrendered to Phillips all evidences of false and fraudulent pretences and representations, as agreed upon; that the banks and other parties mutually agreed to divide the real estate, bonds, and choses in action ratably between the banks and the other parties severally who participated in the agreement ; that the banks and unknown parties, or some of them, now hold the title to the real estate, or the proceeds thereof, and the choses in action, and bonds, or the proceeds thereof ; that the transfers and conveyances and the agreement between Phillips and the banks and unknown parties were illegal and prohibited, and in fraud of the plaintiff’s rights in the premises, and as a creditor of Phillips ; and that the plaintiff was entitled to take the title to the real estate, bonds, and choses in action, now held by the banks and unknown parties as the property of Phillips, and to apply the same on the promissory notes and the judgment.</p> <p>The prayer was, among other things, for a decree that the banks should hold the title to the property as trustees for the plaintiff; that the banks should transfer the same and any proceeds therefrom to a master, whom the court should appoint, and that the master should take title to the property and sell the same, and out of the proceeds pay the plaintiff the amount of Phillips’s indebtedness, returning any surplus to the banks.</p> <p>The defendants demurred to the bill, and assigned as grounds therefor want of certainty, want of equity, that the remedy was at law, that the equity of the plaintiff was not superior to that of the defendants, and that there was no sufficient allegation of fraud.</p> <p>At the hearing, the demurrer was sustained, and the bill dismissed; and the plaintiff appealed.</p>

<p>Short Lobsters — Inferences from Agreed Facts — Statute.</p> <p>If, on a complaint for having in one’s possession “ short lobsters,” in violation of the provisions of Pub. Sts. c. 91, § 84, as amended by St. 1887, c. 314, § 1, the case is submitted to the jury upon a written statement of facts admitted to be true, to the effect that the lobsters, which were in barrels in the defendant’s store, had arrived in the morning from Nova Scotia, consigned by parties there to the defendant in Boston, had been opened and repacked, but had not been offered or intended for sale in this Commonwealth, and that each barrel, marked with the name of a person addressed in New York City, was placed where it was found for an express company to take, the agreed facts, if unexplained, will warrant a finding that the defendant was in possession of the lobsters within the meaning of the statutes.</p> <p>The provisions of St. 1887, c. 314, § 1, entitled “ An Act for the protection of lobsters,” apply to lobsters caught out of the Commonwealth.</p>

<p>Railroad — Facilities for Express Business — Statute — Equity.</p> <p>A person who, when St. 1894, c. 469, was enacted, was engaged in a local express business between points within the Commonwealth on the freight trains of a railroad corporation, is entitled to have the privilege qf doing ■ his express business on the passenger trains of the corporation upon terms, and with facilities and accommodations, which shall be reasonable, and equal to those furnished to others doing a like business over the railroad, having regard to the amount and character of the service, and also to such reasonable regulations of the business as may be required for the public interest and the efficient operation of the railroad.</p>

<p>Bill in equity, filed in the Superior Court on March 9, 1891, by Nathaniel B. Stevens, alleging that on March 1, 1887, and prior to that date, the plaintiff Stevens was in copartnership with one D. J. T. Oldham, doing business in Boston under the firm name of the New England Paint and Varnish Company i that on or about March 1, 1887, the firm became indebted to the defendants, doing business under the firm name of Wiley and Richardson, in a large sum of money, the exact amount of which indebtedness was not known to the plaintiff, but claimed by the defendants to be the sum of $4,594.80; that subsequently the plaintiff became indebted to the defendants for merchandise in the further sum of $624.87; that between March 1, 1887, and May 1, 1889, the plaintiff paid the defendants at sundry times, on account of such indebtedness, $897 ,22 in cash, and $2,866.19 in merchandise; that from time to time since March 1,1887, the plaintiff indorsed, transferred, and delivered to the defendants twenty promissory notes for various sums, held by himself against sundry persons, amounting in all to the sum of $1,509.23; that some of the notes were payable to the New England Paint and "Varnish Company, and some to Oldham, and indorsed to the plaintiff, and some were payable to the plaintiff; that the notes were delivered to the defendants with the understanding and agreement that the defendants should collect the same and apply the proceeds thereof on account of the plaintiff’s indebtedness to them; that the defendants did collect the notes, and received thereon the above named sum of $1,509.23; that from time to time after March 1,1887, the plaintiff became the owner and holder of twenty other notes for various sums, against sundry persons, amounting in all to the sum of $2,104.79; that some of the notes were payable to the firm, some to Oldham, and some to the plaintiff; that he was not able to state which were payable to the firm and which to Oldham, but they were all indorsed to the plaintiff, and were his individual property; that he indorsed and transferred the notes to the defendants, with the understanding and agreement that they should collect the same as far as possible, apply the proceeds thereof on account of the plaintiff’s indebtedness to them, and, upon the payment in full of such indebtedness, the defendants were to transfer and redeliver to the plaintiff all notes which were then in their hands, and also account to the plaintiff for any balance of money so collected, after the payment to themselves of such indebtedness; that the defendants have credited the plaintiff with the sum of $260.19 collected on the notes above mentioned ; that on or about August 19, 1887, the plaintiff turned over and delivered to the defendants twenty-nine book accounts for various sums of money of the New England Paint and Varnish Company, but which were the exclusive property of the plaintiff, such accounts being against sundry persons for merchandise sold and delivered to them; that the defendants took these accounts upon the same understanding and agreement above set forth, with reference to the notes; that the defendants have credited the plaintiff with money collected on such accounts to the amount of $38.27; that on or about October 8, 1887, the plaintiff sold and delivered to the defendants a yacht, at an agreed price of $500, which the defendants received and accepted, and agreed to credit him therefor, on account of his indebtedness, said sum of $500; that the plaintiff had frequently requested the defendants to render him an account of the amounts collected by them on the several notes and accounts, and to pay over to him any balance which should be found due him, and to redeliver to him all the notes and accounts remaining uncollected in their hands; that he had frequently offered, and was ready, to pay the defendants any balance which might be found due from him to them upon accounting together; that the defendants had neglected and refused to render any account, or to pay over the balance which would be found due to the plaintiff on accounting together, or to return to him the uncollected notes and accounts in their hands; and that the defendants had collected a large sum of money on the notes and accounts which they had not accounted for, and had not credited to the plaintiff, or paid to him, as they undertook and agreed to do.</p> <p>The prayer of the bill was for an account, and for payment of the amount found due on such account; and for general relief. By an amendment to the bill, Oldham was joined as a party, and in the subsequent proceedings was treated as a joint plaintiff.</p> <p>The case was referred to a master, who found and reported the following facts, among others. The defendants, who were importers and manufacturers of paint and varnish, sold and delivered goods to the plaintiffs, who were copartners under the firm name and style of the New England Paint and Varnish Company. The plaintiffs were in the habit of turning over to the defendants notes and accounts held by the plaintiffs against various customers, which the defendants were- to collect and were to apply the proceeds thereof towards the payment of the goods so sold and delivered. Some of these notes and accounts have been collected by the defendants,; and the others which have not been collected, and about which there is no dispute, the defendants are ready to return to the plaintiffs. The defendants filed a statement of accounts consisting of a large number of items. Among the items about which there was a dispute were the following: “ Item 171. To G. M. Bohndell notes unpaid and due, $176.12.” “ Item 314. By Yacht on account, $500.” On October 8, 1887, the plaintiff Stevens conveyed the yacht to the defendants by a bill of sale. At the same time the bill of sale was drawn, the defendants gave to Stevens a paper, signed by them, as follows: “ Received of Nathaniel B. Stevens, yacht Ida, by bill of sale of even date, and we are to credit Stevens five hundred dollars on our account against Stevens and Oldham, doing business under the style of New England Paint and Varnish Co.”</p> <p>This credit was actually given as it was agreed. The master ruled that evidence was admissible to show that the yacht was thus sold to the defendants as collateral security, and also to show the real value of the yacht; and found that the yacht was turned over or sold to the defendants as collateral security, and that the defendants were entitled to charge back to the plaintiffs the difference between the nominal and the real value of the yacht, which was the sum of $250.</p> <p>It was agreed that Stevens let Wiley have a Bohndell note. The weight of the evidence was that this note was not to be credited as cash at its face value, but that it was taken as security, like all the other notes, and to be charged back if not paid. The evidence introduced before the master, touching the defendants’ method of treating this note, was substantially as follow’s.</p> <p>On February 7, 1888, the plaintiff Stevens indorsed and delivered to the defendants a note of $146, signed by Bohndell as maker, and payable to the order of Stevens, it being then overdue. Upon receiving the note, the defendants entered it on their books in the account with the plaintiff as a credit. On the same date the defendants charged it to Bohndell, with $1.20 interest due thereon, in an account which they had in their books with Bohndell, and which contained other items of charges. In renewal of this note the defendants took two notes from Bohndell, payable to their order. These notes were renewed from time to time, small payments being made thereon, until February 20, 1889, when one note for $48.71 was taken, and on July 10, 1889, another note for $80.82 was taken, both payable to the order of the defendants. These two notes represented the amount due on the renewals of the original Bohndell note. No further payments have been made on them.</p> <p>The defendants held another note for $51.82 against Bohndell, in no way connected with the original note. This third note was combined with the one for $48.71, interest added, and a new note taken for the two from Bohndell for $95.30, dated September 3, 1889, on three months, payable to the order of the defendants; and these notes were duly entered in the defendants’ account with Bohndell, but not in their account with Stevens until December 31, 1891, when they rendered their final account with him. The defendants claimed the right to charge back the note for $80.82, and also the one for $48.71, which constituted a part of the consideration of the note for $95.30 above mentioned, making $129.53 in all.</p> <p>The original note was delivered up to Bohndell when the two notes were taken in renewal, and the defendants are ready to deliver to the plaintiff the note for $80.82, and the note for $95.30, in place of the original Bohndell note.</p> <p>A decree was entered for the plaintiffs, among other things, disallowing the item in the defendants’ account as to the Bohndell notes, and allowing $500 as the value of the yacht; and the defendants appealed to this court.</p>

Contract, to recover a balance of the purchase price for horses sold by the plaintiff to the defendants. Answer, payment. Trial in the Superior Court, without a jury, before Blodgett, J., who reported the case for the determination of this court, in substance as follows. The following facts were agreed. In May, 1893, the plaintiff, at Fredonia, in the State of New York, sold to the defendant Childs certain horses, and promised to deliver the horses at Fredonia.

<p>Injury to Building by Explosion of Gas — Evidence.</p> <p>In an action against a gas company for injuries occasioned to the plaintiffs building by an explosion of gas that escaped from the defendant’s main pipe, which had been laid in the street and which was found broken, the,break having been caused by the subsidence of the soil under the pipe at the place of fracture, evidence having some tendency to show that the defendant knew that the gas pipe at this place frequently leaked, and that these leaks might be caused by the settling of the pipe in consequence of the subsidence of the soil in which the pipe had been laid, is properly admitted.</p> <p>At the trial of an action against a gas company for injuries occasioned to the plaintiffs building by an explosion of gas that escaped from the defendant’s main pipe, which had been laid in the street and which was found broken, the break having been caused by the subsidence of the soil under the pipe at the place of fracture, a witness called by the defendant as an expert testified, on direct examination, that he superintended the laying of the pipes in this street, and gave his opinion upon the propriety of digging down under the bed of a pipe when laying it to see what was under it, and on cross-examination gave his reasons for his opinion. Held, that it was within the discretion of the judge, for the purpose of affecting the value of the witness’s opinions and his credibility, to permit a question to be put to him, on cross-examination, the object of which was to show that he took a different course in laying pipes on another street from the course taken on the street where the explosion occurred.</p>

Petition to enforce a mechanic’s lien, under Pub, Sts., c. 191. After trial of issues before a jury and a finding in favor of the petitioner, the lien was established in his favor for the amount found by the jury. The petitioner thereupon moved that an order of sale of the premises covered by the lien be issued. In an affidavit filed in opposition to this motion, the respondent set out a certain bond given for the purpose of dissolving the attachment, and duly recorded.

<p>Two actions OP tort, for making false answers in two cases where the present defendant had been summoned as trustee. The cases were tried together in the Superior Court, before SopJcins, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiffs put in evidence the executions which issued in the cases in question, and the judge, in his instructions to the jury, exhibited these executions, and pointed out a certain date upon each, and directed them that, in case their findings were for the plaintiffs, the amounts of their verdicts should be, respectively, certain sums named in the executions, with interest thereon at six per cent per annum from the date so pointed out to them to the day of their verdicts.</p> <p>To these instructions no exception was taken. After the jury retired they sent to the judge a note by the officer having them in charge, of which the following is a copy: “ Shall the jury compute interest from April 23,1890 ? John R. Poor, Foreman.”</p> <p>The judge thereupon directed the officer to bring from the jury room the two executions. The officer procured the executions and delivered them to the judge, who thereupon pointed out to the officer, on each execution, the date which had been pointed out to the jury, and directed him to return the executions to the foreman, and to point out to him the dates which had been thus indicated. The officer returned the executions to the foreman, and pointed out to him the dates, as instructed by the judge.</p> <p>The jury returned a verdict for the plaintiff in each case, with interest computed according to their instructions.</p> <p>Thereupon the defendant duly filed a motion for a new trial in each case, and requested the judge to rule, as matter of law, that the further instruction given to the jury in the cases, in the absence of counsel and after the jury had retired to the jury room, the instruction not having been given in open court, entitled the defendant to a new trial.</p> <p>The judge declined so to rule, and overruled the motion for a new trial; and the defendant alleged exceptions.</p>

Petition, under Pub. Sts. c. 27, § 129, by ten and more taxable inhabitants of the city of Lowell, for an injunction to restrain the city and its officers from negotiating a loan authorized by a joint resolution of the city council on August 6, 1895, and from the payment of the money of the city to the “ Lowell Textile School,” created under St. 1895, c. 475, entitled “ An Act relative to the establishment of textile schools.” The case was submitted to this court on the…

<p>Bill in equity, in the nature of a bill of interpleader, to ascertain to whom the plaintiff should pay $2,000, which became payable by it on the death of one Clementine N. Towne, on September 30, 1893. Hearing in the Superior Court, before Richardson, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff is a beneficiary corporation, incorporated under the laws of Tennessee, and has established a Grand Commandery and subordinate lodges in Massachusetts, called “ commanderies,” through which, in the manner provided in its charter,* constitution, and general laws, it receives members and issues benefit certificates to members, on the assessment plan, and. without paid agents.</p> <p>It was admitted by the insurance department to do business in this Commonwealth prior to January 1, 1888, and has continued to carry on its affairs here in the manner above named, and to do all things incident to the management of its affairs, as set forth in its charter, constitution, and general laws, to the present time.</p> <p>In accordance with its charter, constitution, and general laws, Wachusett Commandery, No. 56, was lawfully instituted at Clinton prior to January 1, 1889, and on January 25, 1889, Clementine N. Towne, of Clinton, became a member of said commandery, naming as her beneficiaries her sisters, Love A. Nye and Abby P. Plummer, and her brothers, Eben W. Gerald and Alexander P. Gerald; and a benefit certificate was issued to her by the plaintiff, payable to the above named beneficiaries. The officers who attested the delivery of this certificate lived in Clinton, and were officers of Wachusett Commandery, as described in the certificate. It is under this certificate of her rights as a member of Wachusett Commandery, and as heirs at law and next of kin of Clementine N. Towne, that her sisters and brothers above named claim this fund.</p> <p>Clementine N. Towne was a widow, and her occupation or business was that of a nurse. She had for fifteen years prior to her death stayed with her sister, Abby P. Plummer, in Clinton, except when engaged in nursing or visiting, but was away nursing most of the time, and with this sister she kept her furniture, bedding, and such of her personal effects as she did not desire to take with her from place to place. During almost all the time for two years prior to her death she had been employed as a nurse in Nashua, New Hampshire, and had been in Nashua all that time except when away for a short period. At the time of her death she had been about one month at the house of her sister, in Clinton, intending to return to Nashua soon. Prior to November 28, 1892, and in that month, and while in Nashua engaged in nursing, she wrote to Emma I. Chase, one of the defendants, offering to make her and her husband, Joseph W. Chase, another defendant, her beneficiaries of the fund in controversy. This letter was lost, but it said nothing about the Chases paying the dues or assessments. In answer to this letter, Joseph W. Chase wrote a letter to her, thanking her for making him a beneficiary, saying that he would pay the assessments, and giving her directions about sending her certificate, and getting a new one in exchange.</p> <p>On November 28, 1892, Clementine N. Towne, then being in Nashua, returned her benefit certificate, and directed that a new one be issued to her, “ Payable to Joseph W. Chase, $1,000, Emma I. Chase, $1,000. Not any relation.” The names of the Chases in the application, and the words, “ Not any relation,” are in the handwriting of Joseph W. Chase, who had formerly been an officer in Wachusett Commandery, but in 1892 he was not an officer. The application and old certificate were sent by Clementine N. Towne by mail, and received at Clinton by Sarah A. Seaward, the Keeper of Records of Wachusett Commandery, and by her forwarded to the Supreme Keeper of Records at Knoxville, Tennessee. A benefit certificate was returned to Seaward, reciting that it was “ issued to Clementine N. Towne,” and naming as beneficiaries Joseph W. Chase and Emma I. Chase. The officers who attested the delivery of this certificate lived in Clinton, and were officers of Wachusett Commandery, as described in the certificate. It is under this certificate that Joseph W. Chase and Emma I. Chase claim this fund. Mrs. Seaward and the other witnesses signed the certificate, and she then sent it by mail to Clementine N. Towne, at Nashua. At the time the witnesses signed the certificate, and prior to its being mailed in Clinton, Clementine N. Towne had not signed it; she signed it in Nashua, and subsequently sent it by mail to Joseph W. Chase, by whom it was received. Clementine N. Towne did not come to Clinton during the transaction, but remained in Nashua.</p> <p>Since the time of the issuing of the certificate in favor of the Chases, they have paid the assessments becoming due, because of the interest of Clementine N. Towne in the benefit fund of the Supreme Commandery. At the time of the issuing of the certificate, Clementine N. Towne was indebted to Joseph W. Chase to the amount of about forty dollars for payments of assessments and dues. Joseph W. Chase had borrowed $300 of Clementine N. Towne before the certificate was issued to him and his wife, and given his promissory note therefor, and still owed Clementine N. Towne about $25 on this note at the time of her death. Clementine N. Towne was not a relative of the Chases, or a member of their family; nor were they, or either of them, dependent upon her.</p> <p>The defendant Merrick was duly appointed administrator of the estate of Clementine N. Towne, and as such claims the fund in question.</p> <p>Such decree was to be entered as this court should order.</p>

Indictment, alleging that the defendant, on August 2, 1895, at Everett, “ in and upon one Mabel Blanche Lovejoy did make an assault, and did then and there unlawfully, indecently, and against the will of her the said Mabel Blanche Lovejoy put and place the hands of him the said Charles Robinson upon and against the private parts of her the said Mabel Blanche Love-joy, and other wrongs to the said Mabel Blanche Lovejoy then and there did.” In the Superior Court, before the…

Petition, by Charly Wahlstrom, Carl Bergman, and William Lambstrom, copartners as Charly Wahlstrom and Company, to enforce a mechanic’s lien, under Pub. Sts. c. 191, for labor performed by the petitioners upon a house belonging to the respondent. Trial in the Superior Court, before Aldrich, J., after whose death a bill of exceptions was allowed by GrasMll, J., in substance as follows.

<p>Tort, by the administratrix of the estate of Daniel O’Brien, for personal injuries occasioned to her intestate while he was in the defendant’s employ by being caught by a rope connected with the drum of an engine at one end, the other end of which ran through a block nearly a hundred feet from the engine to another engine and was fastened to a scoop which was used for levelling off coal between two runs in the coal yard. The declaration was under the employers’ liability act, St. 1887, c. 270.</p> <p>Trial in the Superior Court, before Hopkins, J., who, at the close of the plaintiff’s testimony, and at the defendant’s request, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p> Employers’ Liability Act—“Superintendence”—Law and Fact■—Due Care. </p> <p>A person must be considered as intrusted with and exercising superintendence whose sole or principal duty is that of superintendence, within the meaning of St. 1887, c. 270, notwithstanding he does some slight manual labor.</p> <p>H an employee, as he testified, placed his hand on the side of a stone to steady it, as he had been ordered to do while the stone, to which dogs were attached, was ascending, and he had no reason to suppose that it was going to fall, and had a right to rely on the presumption that it was properly fastened, it cannot be said, as matter of law, that he was careless, but the question of his due care is for the jury.</p>

<p>Construction of Contract — Finding — Usage of Trade — Evidence.</p> <p>If, by the terms of an agreement in writing, A. is to build an ice-house of certain dimensions, and B. is to have all the ice in the house at a certain rate per ton, a ton to consist of a certain measurement, and A. builds a house, the outside dimensions of which are larger than, but the inside dimensions correspond with, those stated in the contract, a finding of the judge, in an action to recover the price of the ice, that B. accepted and used the house as built under the contract, disposes of an exception to a refusal to rule that the dimensions stated in the contract were outside dimensions, and that A., not having built the house according to the contract, could not recover.</p> <p>A. and B. executed an agreement in writing, by which A. was to build an ice-house of certain dimensions, and B. was to have all the ice in the house at a certain rate per ton, “a ton to be forty-five cubic feet of ice.” After the house was filled, the ice was measured by A. and B.’s agent, without deducting for air spaces between the cakes of ice, the amount of cubic feet so obtained was divided by forty-five, and the number of tons was thus ascertained. There was a custom in the ice trade, well known to A. and B. when they made their contract, in buying and selling ice, to measure ice in the way above stated. Held, in an action for the price of the ice, tried without a jury, that the judge was warranted in adopting the measurement so made.</p> <p>A usage of trade, known to the parties to a contract when they made it, is admissible in evidence in an action thereon, and a finding that they entered into the contract in contemplation of the usage will be warranted.</p>

<p>Report of Evidence by Master — Discretion of Judge — Absent Defendant — Equity — Practice.</p> <p>Under a rule to a master to hear the parties and report the facts, the master is not bound to report the evidence bearing upon any finding of fact, and, a motion to recommit for that purpose having been denied, a decree for the defendant will be affirmed; and it is entirely within the discretion of a single justice of this court before whom the case afterwards came to decline to order the evidence, or any part of it, reported.</p> <p>If the plaintiff in a bill in equity, being informed by the answer of one of the defendants of the death of the other leaving a will in another State in which he resided, elects to proceed with the case, without taking any steps to summon in the devisees under the will, there is no reason after the bill has been dismissed, nearly five years having elapsed since it was filed, why it should be retained to give the plaintiff the opportunity of making the devisees parties.</p>

Tort, for personal injuries occasioned to the plaintiff’s intestate, Adolph Adasken, and for causing his death while in the defendant’s employ. Trial in the Superior Court, before Dewey, J., who, at the close of the plaintiff’s 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>Writ op error, to reverse a judgment rendered for the Commonwealth, at the January sitting, 1894, of the Superior Court for the County of Essex, upon an indictment charging James E. O’Neil with an assault with intent to kill on one Mary J. O’Neil. Plea, in nullo est erratum. The facts appear in the opinion.</p>

<p>Personal Injuries — Loss of Life — Law and Fact—Due Care—Negligence.</p> <p>In an action against a railroad corporation by an administrator for personal injuries occasioned to his intestate, and, under Pub. Sts. c. 112, § 212, for causing his death by being crushed while attempting in the performance of his duty to pass through a small space between a bunting post and the end of a car which was one of several cars coupled and standing together, the questions whether the defendant’s servants were not grossly negligent in causing the accident by pushing back a car against the standing cars with too much force, and whether the plaintiffs intestate was in the exercise of due care, are for the jury.</p>

<p>Contract, upon a promissory note for $1,000, dated January 1, 1889, payable in twenty-four months after date, to the order of James G. Crawford, signed by the defendant, and indorsed to the plaintiff. Trial in the Superior Court, before Dunbar, J., who directed the jury to return a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Indictment for the larceny, on May 4, 1895, at Natick, of a horse, the property and in the possession of Robert F. Perkins. At the trial in the Superior Court, before Bishop, J., the jury returned a verdict of guilty ; and the defendants alleged exceptions. The facts sufficiently appear in the opinion.</p>

<p>Indictment — Duplicity —Verdict.</p> <p>An indictment under Pub. Sts. c. 202, § 26, alleged in one count that the defendant, at a time arid place named, “ with intent to commit larceny, to wit, with intent feloniously to steal, take, and carry away the property,” etc. of A., “ then in a certain building, to wit, the dwelling-house of the said A., there situate, feloniously and unlawfully, in said building, did then confine, injure, beat, bruise, wound, and put in fear the said A., who was then and there in said building, by then and there seizing and holding the said A., for the purpose then and there of feloniously stealing, taking, and carrying away from the said building the property,” etc. of A., “ then in said building being ”; and in another count that the defendant, at the same time and place, “ with the intent to commit larceny in and upon one A. an assault did make and him the said A. in a certain building, to wit, the dwelling-house of the said A. there situate, feloniously and unlawfully did then and there confine, beat, bruise, wound, and put in fear, for the purpose then and there of feloniously stealing, taking, and carrying away from the said building the moneys, goods, and chattels of the said A. in said building then and there being.” Held, that the indictment was not open to the objection of duplicity, and the unnecessary averments did not render it bad; and that a verdict of guilty on both counts was not inconsistent.</p>

<p>Exclusion of Pupil from Public School—Authority of School Committee — Action — Finding.</p> <p>If the school committee of a town exclude permanently from a public school a pupil, who has been suspended therefrom by his teacher for alleged misconduct, without giving the pupil an opportunity, which is applied for and refused, to be heard upon the question of fact involved in his alleged misconduct, such exclusion is unlawful, and an action therefor may be maintained against the town ; and such action is not defeated by a finding of the court that the pupil was disrespectful to the teacher.</p>

<p>Contract. The first case was upon a policy of insurance for $500, issued by the defendant upon the life of Michael Considine, and the second case was upon a policy for $500, issued by the defendant upon the life of William Langan. At the trial in the Superior Court, before Sherman, J., it appeared that the insured were of full age, knew of and consented to the policies, and were examined by a physician on behalf of the company before the policies were issued. In the first case, the judge, at the close of the testimony for the plaintiff, the defendant introducing no evidence, directed the jury to return a verdict for the plaintiff, and the defendant excepted. In the second case, the defendant asked certain rulings, which the judge declined to give, and the defendant excepted. The jury returned a verdict for the plaintiff; and the judge reported both cases for the determination of this court.</p> <p>If the rulings were wrong, the verdicts were to be set aside and new trials granted; otherwise, the verdicts were to stand.</p>

<p>Bill in equity, to establish the plaintiff’s ownership of stock in the defendant corporation. Trial in the Superior Court, before Richardson, J., who reported the case for the determination of this court, in substance as follows.</p> <p>On or about April 4,1892, the defendant corporation, which was organized under the laws of Massachusetts with a capital stock of $16,000, and had its usual place of business in Boston, for a valuable consideration, gave the I. B. Kleinert Rubber Company, a corporation established under the laws of New York, and having its usual place of business in New York City, the following promissory note :</p> <p>“ New York, April 4,1892. On demand we promise to pay to the order of ourselves, five thousand dollars, at 148 Tremont Street, Boston, Mass., with interest from date at 6% per annum.”</p> <p>The note was signed by the H. W. Downs Company, H. W. Downs, Treasurer, and indorsed by H. W. Downs, Treasurer, and also by H. W. Downs, A. W. Downs, and E. A. Guinzburg, said H. W. Downs, A. W..Downs, and E. A. Guinzburg being then the stockholders and officers of the defendant corporation. The note was signed and delivered in Boston to the vice-president and secretary of the I. B. Kleinert Rubber Company. It was given for two previous notes, aggregating $5,000, which had also been given for still earlier notes of that amount for a loan of $5,000. The original notes were dated New York, though expressly made payable in Boston. At the time and place of the signing and delivery of the note, on April 4, 1892, the defendant corporation, by its treasurer, delivered, as collateral security for the payment thereof, two certificates of stock in the defendant corporation for twenty-seven shares each. These certificates were owned by H. W. Downs, and no question was made that H. W. Downs, Treasurer, had the right to pledge them as security for payment of the note. The blank form for transfer on the back was properly signed. The defendant corporation made payments upon the note from time to time, and on July 18, 1894, the I. B. Kleinert Rubber Company, having already made several demands for payment of the balance and interest, sent by mail the following notice of its intention to sell the stock by auction :</p> <p>“ This notice should be served a reasonable time before the sale. Unless notice is waived, a reasonable time is held to be about four or five days., To H. W. Downs Company: We hereby notify you that you are indebted to us for sum of principal, $489.61; interest accrued on your demand note for $5,000, dated April 4, 1892, $16.32; total, $505.93. We further notify you that we hold as security for the payment of the above sum 54 shares of the capital stock of the H. W. Downs Company, of the nominal par value of fifty-four hundred dollars, which, in default of your paying the above indebtedness and redeeming said securities on or before the time hereinafter mentioned, we will sell such securities at public auction at the Real Estate Exchange Salesroom, No. 59 to 65 Liberty Street, in the city of New York, by Richard V. Harnett & Co., as auctioneers, on Tuesday the 24 (twentj^-fourth) day of July, 1891, at half past twelve o’clock in the afternoon, for your account, to satisfy our lien thereon and the expenses of the sale, and that we will hold you for the payment of any deficiency arising on sale.”</p> <p>The defendant corporation received this notice on July 20, 1894. At the time and place mentioned in the notice, which was a place where sales of bonds, stocks, and real estate were usually made in New York, and by a regular auctioneer, the certificates of stock were, by the said auctioneer, put up for sale by auction. The auctioneer, by a clerk or agent duly authorized to act for him, asked for a bid in cash “ and his expenses ” as the auctioneer in respect to the sale. James A. Hudson, Esq., the attorney of the I. B. Kleinert Company, was present at the sale at the request of and for the plaintiff, and bid for the stock $50 and the auctioneer’s expenses. There was no other bid, and the stock was struck off to Hudson as attorney for the plaintiff. He paid $50 and the auctioneer’s expenses, amounting to $16, and received for the plaintiff the certificates. None of the stock had ever been sold by auction in New York, and it did not appear that the stock was known in New York, and it was not what is called a “ listed ” stock. A list of stocks and property sold by the auctioneer on that day was printed, copies of which were in the auction rooms. Hudson testified that he saw the stock advertised in a newspaper in New York, but how advertised, or in what paper, or when, did not appear. In the auction room were other auctioneers selling other property at the same time, twenty-five to thirty people in all being present. After the receipt by the defendant corporation and its officers of the notice on July 20, 1894, they did not communicate with the I. B. Kleinert Company, or take any action in regard to the proposed sale. The judge found that there is no statute in New York regulating the sales of pledges, or of personal property, held as collateral security, but that such sales are regulated and governed by the rules of the common law. After the alleged purchase of the stock by the plaintiff, he made demand upon the defendant corporation to have the shares transferred to him upon the books of the corporation, and to have a new certificate of fifty-four shares of stock issued to him. The demand was refused by the defendant corporation, and the plaintiff’s title to the stock was denied by it, and he was excluded from partid-, patíng in the management of the corporation.</p> <p>If there was a valid sale of the stock, the relief sought for was to be granted, namely, that the corporation be enjoined from transacting any business at its meetings until a new certificate had been properly issued, and that H. W. Downs be restrained from voting upon the fifty-four shares, and that the officers of the corporation be required to issue a new certificate; if there was not a valid sale of the stock, then the bill was to be dismissed.</p>

Bill in equity, filed in the Superior Court on August 31, 1891, to set aside a conveyance of real estate, effected by means of two deeds executed simultaneously on September 11, 1871, the first from the plaintiff to one Hugh McDevott, and the second from McDevott to the defendant, who was the plaintiff’s wife.

<p>Contract — Law and Fact — Rescission — Fraud—Action.</p> <p>Where the terms of a contract, to be gathered from talk between the parties on more than one occasion, are not so clear and distinct as to be uncontroverted, tlie question what the contract was should be submitted to the jury as one of fact.</p> <p>An action, the declaration in which contains a count in tort based on fraud in a contract of sale, the averment of which is limited to a misrepresentation of the cost to the defendant of the property sold, and a count in contract for breach of the contract of sale, both of which counts rest on the ground of an attempted rescission of the contract, and seek to recover back the whole of the purchase money, if the defendant cannot be restored to his original position, cannot be maintained.</p>

<p>Action on Pub. Sts. c. 175, to recover possession of a house and land in Reading, alleged to be held by the defendant unlawfully and against the right of the plaintiff, and described as follows: “ A certain lot of land with the buildings thereon situated on the easterly side of Hancock Street in said Reading, being lot numbered forty-nine on a plan by James A. Bancroft, dated April 29th, 1866, recorded in the Middlesex South District Registry of Deeds, book of plans 48, plan 41. The house on said lot is the second one north of Mineral Street on the easterly side of said Hancock Street.” Writ dated November 6, 1893. In the Superior Court the defendant demurred to the declaration, on the following grounds: “ 1. There is no sufficient description in said declaration of the alleged premises purporting to be described therein. 2. The premises in question are not described as required by law, and with legal certainty, in said declaration.” Bishop, J. sustained the demurrer;</p> <p>The plaintiff then moved to amend his declaration by filing a further description of the premises attempted to be described therein.</p> <p>Upon the hearing of this motion, the defendant asked the ' judge to rule that he had no power to grant the motion, for the reason that it did not appear upon the face of the declaration for possession of what premises the action was intended to be brought.</p> <p>The judge refused so to rule, and allowed the motion; and the defendant excepted.</p> <p>The declaration, as amended, described the premises by metes and bounds.</p> <p>The answer admitted that the defendant was in possession of the premises attempted to be described in the declaration, but denied every other allegation therein, and set up title in the defendant.</p> <p>At the trial, the plaintiff offered in evidence a deed from Oscar Foote to Charles W. Hatch, dated August 18, 1887, and duly recorded. This was admitted without objection. He then offered in evidence a deed of mortgage containing a power of sale in the usual form, dated November 10, 1887, and duly recorded, the material part of which was as follows: “ Know all men by these presents that I, Charles W. Hatch of Lawrence in the county of Essex and State of Massachusetts, in consideration of three thousand dollars paid by Hattie B. Lewis, Ellen T. Lewis, both single women, and John B. Lewis, Junior, as he is trustee for Mary U. Lewis, John B. Lewis, 3d, Hattie B. Lewis, and Clarence H. Lewis, all of Reading in the county of Middlesex and State aforesaid, the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said Hattie B. Lewis, Ellen T. Lewis, and John B. Lewis, Jr., trustee as aforesaid, and their heirs and assigns, a certain parcel of land.” The habendum was “ to the said Hattie B. Lewis, Ellen T. Lewis, and John B. Lewis, Jr., trustee as aforesaid, and their heirs and assigns.” This was objected to by the defendant, on the ground that it was void, being ambiguous on its face as to the parties who were intended to be described as grantees therein, it not being clear whether John B. Lewis, Jr., one of the grantees, was intended to be described as trustee for Mary W. Lewis only, or for all the persons whose names followed after hers in the granting clause, or whether these other persons were not cestuis que trust, but separate parties to the deed. The objection was overruled, and the mortgage admitted in evidence; and the defendant excepted.</p> <p>The plaintiff then offered in evidence a deed dated April 1, 1893, and duly recorded, purporting to be made under the power of sale in the mortgage, the material part of which was as follows : “ Know all men by these presents, whereas Charles W. Hatch of Lawrence in the county of Essex and Commonwealth of Massachusetts did by mortgage deed, dated Nov. 10, 1887, and recorded in Middlesex (So. Dist.) Registry of Deeds, book 1825, page 564, convey the real estate hereinafter described to Hattie B. Lewis (now Hattie B. Swett), Ellen T. Lewis, and John B. Lewis, Jr., as he is trustee for Mary U. Lewis, John B. Lewis, 3d, Hattie B. Lewis, and Clarence A. Lewis, all of Reading.” After the recital of a default in the performance of the conditions of the mortgage, a notice by publication, and a sale by public auction,- the deed continued as follows: “ Now therefore know all men, that we, the said Hattie B. Swett, Ellen T. Lewis, and John B. Lewis, Jr., trustee, by virtue and in execution of the power contained in said mortgage deed as aforesaid, and of every other power us hereto enabling, and in consideration of the sum of thirty-one hundred dollars to us paid by John B. Lewis, Junior, of- said Reading, do hereby grant, bargain, sell, and convey unto the said John B. Lewis, Junior, his heirs and assigns forever, all and singular, the premises conveyed by the aforesaid mortgage deed.” It was executed by “ Hattie B. Swett, Ellen T. Lewis, and John B. Lewis, Jr., trustee.” This w,as objected to by the defendant on the following grounds: “ 1. That it was void by reason of containing the same patent ambiguity as to its grantors that the above mentioned mortgage deed contained as to its grantees. 2. That, if the preceding objection was unsound, then this deed was void because not executed by the following of its grantors: John B. Lewis, 3d, Hattie B. Lewis, and Clarence H. Lewis.” Both of these objections were overruled, and the deed admitted in evidence; and the defendant excepted.</p> <p>The plaintiff then offered in evidence an affidavit of sale, dated April 1,1893, and duly recorded as follows: “We, Hattie B. Lewis, Ellen T. Lewis, and John B. Lewis, Jr., trustee, the mortgagees named in the foregoing deed, on oath depose and say, that default has been made in the payment of the interest and principal and taxes mentioned in the condition of the mortgage deed above referred to, the said sums' when it became payable not having been at that time, or at any other time, paid or tendered to any person authorized to receive the same.” This was signed by “ Hattie B. Swett, Ellen T. Lewis, John B. Lewis, Jr.” This was objected to by the defendant, on the same grounds that the above named deed was objected to, and on the further ground that the affidavit of sale failed to show that the Hattie B. Swett whose name purported to be signed to it w.as the same person described as “ Hattie B. Lewis, now Hattie B. Swett,” in the deed; also that it was not competent as evidence that default had been made in the payment of interest and principal and taxes mentioned in the condition of the mortgage deed. The defendant’s objection was overruled, and the affidavit of sale admitted in evidence; and the defendant excepted.</p> <p>The defendant made no objection to the identity of the premises in suit with those described in each of the several instruments offered in evidence.</p> <p>The defendant offered no evidence, and asked the judge to instruct the jury as follows: “ 1. The plaintiff is not entitled, upon all the evidence in the case, to maintain his action or complaint. 2. The deed to the plaintiff from Hattie B. Swett and others, purporting to be executed by virtue and in execution of the power contained in the mortgage deed from Charles W. Hatch, is invalid; and the plaintiff did not and could not derive any such right or title thereunder as to enable him to sustain this action or complaint, for the reason that the deed to the plaintiff is not joined in nor executed by all the parties named as grantees or mortgagees in the mortgage deed, either in their own names, or as the attorney of Hatch; and because the deed to the plaintiff is not made and executed pursuant to and in conformity with the requirements of the mortgage deed, or of any power or authority therein contained or thereby conferred. 8. The plaintiff is bound to prove that the defendant has been, ever since the date of the complaint, and still is, in possession of the premises described in the complaint1 as amended, and of every portion of said premises. 4. The plaintiff is also bound to prove that the defendant held and holds such possession as grantee or tenant, under some title, lease, or claim derived or obtained from Hatch or his grantee, and of a nature to be defeated by a sale and conveyance under the power of sale in the mortgage. 5. The affidavit of sale here offered in evidence by the plaintiff is not competent evidence of all the facts therein set forth and alleged, and proof of all of said facts is essential and indispensable to enable the plaintiff to maintain this action or complaint. 6. The alleged affidavit of sale is of no validity, nor competent as evidence in this case, for the reason that the same does not show a full, complete, and legal compliance with all the requirements of the power of sale. 7. It was the duty of the plaintiff, before commencing this proceeding, to give to the defendant a reasonable notice of his claim of title, here set up, together with reasonable notice and opportunity to vacate said premises; and the giving of such notice and opportunity was a necessary and indispensable condition precedent to the right of the plaintiff to maintain this action or complaint.”</p> <p>The judge refused to give the instructions requested, and ruled that the evidence was sufficient to support the plaintiff’s case.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff, who was fourteen years old and a French Canadian, while in the defendant’s employ. At the trial in the Superior Court, before Mason, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Contract, against George Morrill, William E. Carleton, and Eliphas W. Arnold, trustees of the estate of William Carleton, to recover a commission on a sale of real estate in Boston. Trial in the Superior Court, before Fessenden, J., who ruled that the action could not be maintained against the defendants Morrill and Carleton, and directed a verdict for them. The plaintiff thereupon was allowed to amend his declaration, alleging an employment by the defendant Arnold alone.</p> <p>The jury returned a verdict for the plaintiff; and Arnold alleged exceptions. The material facts appear in the opinion.</p>

<p>Appeal from a decree of the Probate Court, allowing the will of Howard Gill. Trial in this court, without a jury, before Morton, J., who found in favor of the will, and affirmed the decree; and the appellants alleged exceptions, which appear in the opinion.</p>

<p>Metropolitan Park Act—Constitutional Law — Award of Commissioners.</p> <p>The commissioners appointed by this court under § 10 of the Metropolitan Park Act, (St. 1893, c. 407,) who, after due notice and hearing, and in such manner as they shall deem just and equitable, are to determine the proportion in which each of the cities and towns named in the act as constituting the Metropolitan Parks District shall annually pay money into the treasury of the Commonwealth for the term of five years to meet the expenses incurred under the act, are authorized to determine the proportions to be paid by the several cities and towns before the construction of any parks in the district, or before the expenses are actually incurred ; and, so construed, the statute is constitutional.</p> <p>That a certain city named in the Metropolitan Park Act (St. 1893, c. 407) will derive no advantage from a connection with that park system, and ought not to be included in it, is a question for the Legislature, and not for this court.</p> <p>Upon an appeal, by a city named in the Metropolitan Park Act (St. 1893, c. 407) as included in the district created therein, from a decree accepting the award of the commissioners appointed under § 10 to determine the proportions to be paid by the several cities and towns, this court cannot consider the objection that the proportion assessed upon the appellant will carry its municipal debt beyond the limit fixed by statute, if the amount of its existing debt, or any facts bearing on the question, are not before the court.</p> <p>It is not essential that it should appear in the report of the commissioners appointed under § 10 of the Metropolitan Park Act (St. 1893, c. 407) to determine the proportions to be paid by the several cities and towns named therein as constituting the Metropolitan Parks District, that the assessment was made on the principle that a certain city is benefited by the constructed work, and does not exceed the benefit conferred; nor is it necessary that the special benefits received, if any, must be confined to the benefits received from any of the open spaces or parks in the condition they were in at the time the assessment was made.</p> <p>It is no objection to the report of commissioners appointed under § 10 of the Metropolitan Park Act (St. 1893, c. 407) to determine the proportions to be paid by the several cities and towns named therein, that it does not show what amount has been expended under the statute ; nor is it any objection to their apportionment that it is made up by including within the total amounts appropriated a sum which the Metropolitan Park Commission were authorized by a subsequent statute to expend in a particular place, and that the apportionment is varied thereby.</p> <p>That the commissioners appointed under § 10 of the Metropolitan Park Act (St. 1893, c. 407) to determine the proportions to be paid by the several cities and towns named therein, made a mistake in their award, by calling the unapplied balance appropriated by a subsequent statute a certain sum instead of a larger one, is immaterial, if the mistake did not affect the award as to the proportion for each city and town to pay.</p>

<p>Contract, upon a written instrument executed by the defendant. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiffs; and the defendant alleged exceptions. The facts sufficiently appear in the opinion.</p>

Contract, against Cyrus Cobb and Darius Cobb, upon a promissory note for $413.40, dated April 16, 1892, payable in three months after date to the order of the plaintiff. Writ dated July 9,1894. Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, in substance as follows.

<p>Contract, or tort, against a deputy of the sheriff of Suffolk, for refusing to serve a replevin writ. Trial in the Superior Court, without a jury, before Hammond, J., who found for the plaintiffs, assessing nominal damages; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Two ACTIONS OE tort. The first case was for personal injuries occasioned to the plaintiff, a minor, while in the defendant’s employ, and the second case was by her father for loss of services and expenses resulting from the injuries. Trial in the Superior Court, before Braley, J., who, at the close of the evidence, at the request of the defendant, directed the jury to return verdicts for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Petition for the assessment of damages caused by the taking of a portion of the petitioner’s farm in Southborough for an additional water supply for the respondent city, on April 30, 1894. Trial in the Superior Court, before Fessenden, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The petitioner was the owner of a farm, containing about fifty acres, with a house, barn, and other buildings ordinarily found on a farm, about a quarter of a mile from a village in Southborough called Fayville. The respondent took about fifteen acres from the front of the farm nearest the highway, on which it bounded, and also took all the buildings on the fifteen acres.</p> <p>One Webster, a witness for the petitioner, qualified as an expert on the values of land, testified to his opinion of the value of the farm, and the damage done by the respondent’s taking, and gave his reasons therefor. He was then asked, in his direct examination, as to the neighborhood of the petitioner’s farm, and what kind of places there were in the neighborhood, the kind of farms, and their character; and he replied that there were a number of good farms and dwellings within a short distance, and mentioned one belonging to one Ball, and showed it to the jury on a plan.</p> <p>The petitioner, who testified in his own behalf, gave as his estimate of the value of the farm before the taking $8,500, and was asked, in his direct examination, with reference to the neighborhood in which his farm was situated, and said that it was a good neighborhood, and referred to the farms of Ball, Paige, and Robertson, which he pointed out to the jury on the plan as being nice places and valuable farms. On cross-examination, he was asked if he knew the Lavelle house, near his own, the location of which was shown on the plan, and he replied that he did. He was then asked if there was not scarlet fever in it in the winter of 1893-94, and if it was not burned by the town in June or July, 1894, on this account; to which questions he replied in the affirmative. He was also asked if there was not living in this house at the time of the taking a man named Russell, if it was not supposed to be a place where liquor was sold, where rough people went to buy liquor, and was not a resort for thieves, and if Russell had not assaulted him; to all of which questions the witness answered in the affirmative. The petitioner seasonably objected to all these questions, but the judge admitted them; and the petitioner excepted.</p> <p>One Bird, an expert on values, called by the respondent, testified that he knew of sales of land in the neighborhood, and had kept himself posted on sales in the town of Southborough. He gave his opinion of the value of the petitioner’s land, and the damage done by the taking. He was then asked, “ What are your reasons for thinking his damages are thirty-eight or thirty-nine hundred dollars, and the whole value of the farm before the taking five thousand ? ” And he answered, “ I think five thousand compares with the other sales that I know of in that vicinity, that section.” He was then asked to mention some of the sales that he knew of without giving the price, and he mentioned the Scheerer farm, the Harvey farm, the Lowell farm, and the Smith farm, as sales which he had heard of, but had not been a party to. On cross-examination, he testified that the Harvey farm was on the opposite side of the town from the petitioner’s, but was near enough to help fix a value, and was about the same size; that he thought if you took a farm of about the same size, about the same kind of buildings, and about the same distance from the centre, it did not make very much difference on which side of the town it was; and that this was a rule you could apply in a general way. He was then asked if he knew of the sale of W. H. Buck’s place, a farm of about forty-five acres, with a house and barn, on the same side of the town as the Harvey place, and about the same distance from the centre. He answered that he had heard of it, and how much it sold for. He was then asked what he had heard it sold for, the petitioner’s counsel stating that the question was not asked to introduce the answer as substantive testimony, but to test the knowledge of the witness. The respondent objected to the question. The judge, after stating that he should exclude the question, to which the petitioner excepted, said that the witness might be asked if he based his judgment on this sale. The counsel for the petitioner consented to put the question, stating at the time that he did not waive his rights by so doing. The witness then said that he did not base his judgment on what he had heard of the sale of the W. H. Buck place, and did not take it into consideration at all, although he knew of it.</p> <p>The petitioner then again offered to ask the witness the price for which the Buck farm had sold, not as substantive evidence, but to test the knowledge of the witness, and to show his bias. The judge excluded the question ; and the petitioner excepted.</p> <p>The jury returned a verdict for the petitioner in the sum of $5,300; and he alleged exceptions.</p>

Tort, for the conversion of personal property. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.

<p>Tort, for forcibly entering within the limits of the location of the Old Colony Railroad Company, the plaintiff’s predecessor in title, and removing a fence. Trial in the Superior Court, before Braley, J., who reported the case for the determination of this court, in substance as follows.</p> <p>In 1872 the Old Colony Railroad Company, in laying out and constructing a branch railroad from Buzzard’s Bay to Wood’s Holl, included in the location a strip of land belonging to the defendant, situated in West Falmouth. No right of way was reserved to the defendant by the railroad company across this strip, which strip divided the defendant’s land, and left one portion lying on the westerly side of the location, and entirely inaccessible except by crossing the location or by trespassing upon lands of others. This tract of land contained about five acres, was used by the defendant for agricultural purposes, being meadow land from which he cut hay, and also included the whole of his orchard. It had upon it ice-houses, in which he stored all his ice, which be gathered from a pond that bounded the land upon the west. No right of way across this location has ever been laid out by the county commissioners; but at the time of the original taking an award was made the defendant by them under due proceedings, from which an appeal was taken to the Superior Court. At the trial of that case, damages were assessed upon the ground, among other things, that no right of crossing the location had been reserved or shown. Upon exceptions of the petitioner, the case came to this court, and is Old Colony Railroad v. Miller, 125 Mass. 1, and may be referred to, and so far as any statement of fact is contained therein may be considered as undisputed evidence in this case.</p> <p>Since the taking and the award of damages, which were duly paid, the defendant has passed and repassed across the location in one place, and as a way across the location, but not uninterruptedly, and has acquired no right of way by prescription, either as against the Old Colony Railroad Company or the plaintiff, its lessee. In Match, 1895, the plaintiff placed fences and obstructions across the way at different- times, which the defendant removed. This action was brought to recover nominal damages for the removal of the fences, and to settle the rights of the parties. The defendant contended that, notwithstanding no right of way was reserved in the original location or had been granted by the county commissioners, the right of way arose from necessity, and that not being able to make any use of the portion lying westerly of the location unless he had such right of way, he was entitled to have access to it across the tracks of the plaintiff. The plaintiff contended that a way of necessity did not exist under the taking; that there was no way by necessity, and there could be no right of way acquired, except by prescription, or unless the same was laid out by the county commissioners at the time of making the award, and that the defendant could not set up a way by necessity as a defence to the action.</p> <p>The judge ruled, as matter of law, that no right of way by necessity in favor of the defendant existed across the location to connect the easterly and westerly portions of the farm, and ordered judgment for the plaintiff for nominal damages, in the sum of one dollar. If the ruling was right, the judgment was to be affirmed; otherwise, judgment was to be entered for the defendant.</p>

Contract, to recover 11,200 and interest, the balance alleged to be due on a policy of insurance for $2,000, issued by the defendant on October 14, 1885, on the life of Martha M. Moore, to the plaintiff, who was her husband.

<p>Contract, upon three promissory notes for $5,000 each, dated April 1, 1892, payable to the order of the plaintiff in six months, nine months, and one year, respectively, and signed by the defendant. The answer set up that the notes were given without consideration, and that the defendant was induced to give the notes by the false and fraudulent representations of the plaintiff. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The notes were given as consideration for the purchase of the stock in a corporation called the “ Metropolitan Duplex Fire and Police Signal Company,” the principal assets of which the plaintiff alleged and presented evidence to show were certain patents for police signal apparatus. The defendant, having given in his direct examination evidence tending to show that the stock and patents were worthless, because the patents were infringements upon the patents of a certain other system known as the “ Municipal Signal System,” the bulk of the stock in which was purchased by the defendant subsequently to the making of the notes, and were therefore of no value, was asked *by the plaintiff’s counsel, on cross-examination, the following questions:</p> <p>“ Q. Did you ever compare it (i. e. the Metropolitan Duplex Fire and Police Signal Company) with the Municipal, and tell him (Mr. Chapman) which you thought was the more valuable ? A. No, sir; I don’t remember of my ever saying so to Mr. Chapman.</p> <p>“ Q. Did you ever tell Mr. Chapman that you asked one hundred and fifty thousand dollars for the Duplex, and one hundred thousand dollars for the Municipal Company ? A. No, sir.</p> <p>“ Q. Do you know of the city of Boston having made offers for apparatus of the Duplex Company since you have owned it, and which you have not filled ? A. I do not."</p> <p>To all these questions and answers the defendant objected, but the judge admitted them; and the defendant excepted.</p> <p>At various times during the progress of the trial the judge stated to the counsel and jury that, so far as the first ground of defence was concerned, he should rule and instruct the jury that, as matter of law, there was ample consideration for the notes, it not being the case of a purchase of certain invalid rights themselves, but being in fact a purchase of stock in a company whose principal assets, and it may be sole assets, were certain invalid patent rights. During the cross-examination by the defendant of one Churchill, a patent expert, who had given testimony in his direct examination by the plaintiff as to the validity and usefulness of the patent rights, the judge ordered the defendant’s counsel to restrict the trial to the branch of the case concerning the charges of fraudulent representation, for the reasons above stated; thereupon the defendant excepted, and thereafter no further attempt was made to introduce evidence of the invalidity of the patents or their lack of value.</p> <p>After the plaintiff and defendant had rested their cases, and at the beginning of the argument for the defence, upon certain remarks being made by the judge, the plaintiff consented that the case should be treated as if it had been the purchase of the patents instead of stock in the corporation. Upon the counsel for the defendant protesting that, owing to the ruling of the judge during the .course of the trial, much of the evidence relating to the validity and usefulness of the patents had been excluded, the judge consented that the case might be reopened for any further evidence on that subject. The defendant’s counsel stated that, owing to the absence of many of the witnesses, who had been dismissed upon the closing of the testimony, and the undue prejudice to his case by such a changed form and course in the conduct of the case, the defendant declined to accept the offer then to reopen the case, and elected to go on with his argument; and excepted to the action of the judge.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract, with a count in tort, both counts being alleged to be for the same cause of action, for personal injuries occasioned to the plaintiff from the failure of the defendant to stop one of its cars, on which the plaintiff was a passenger, at one of its regular stopping places, on reasonable notice of the plaintiff that he desired it stopped at such stopping place, and from failure to use all necessary care and skill in the management of the ear. Trial in the Superior Courf, before Bond, J., who allowed a bill of exceptions as follows.</p> <p>The plaintiff testified that there was a white post on the southerly side of Broadway, at the corner of P Street and Broadway, South Boston, and he knew that there was a regular stopping place of the line at that point. On June 20,1894, at about 6 p. m., he became a passenger on one of the defendant’s cars. At the corner of P and Fourth Streets he asked the conductor if he would stop at Broadway. The conductor said, “ Yes, sir.” When they were about half of the distance from Fourth Street to Broadway, the plaintiff got out of his seat and got on to the running board, and stood there about a minute or so with his hand on the standard, and looked at the conductor, supposing that he was going to stop. About twenty feet from the flagstone of Broadway, the plaintiff stepped off the car as carefully as he could into the gravelled street, and struck on his right shoulder and received the injuries complained of. The car was then running at about four miles an hour.</p> <p>He further testified that he was forty-six years of age; that he had always engaged in out-door occupations; and that since he canse to Boston he had ridden frequently on the street cars, and used to go twice a day from South Boston up to E Street, and was very apt to jump on and off the cars when they were in motion, and always came out all right.</p> <p>The judge, at the defendant’s request, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Savings-bank Book— Title to Deposit— Claimant— Gift — Evidence.</p> <p>If, upon the bill of interpleader by the administrator of A. against a savings bank and B., to determine the ownership of a deposit of money in the bank in the names of “A. and B., payable to either or the survivor,” a witness, to support the contention that there was a gift of the deposit-book by A. to B., testifies that he obtained his knowledge of the book by seeing it in the possession of B., evidence of his statements to the effect that he obtained his knowledge of the book by seeing it in the possession of A. is admissible in contradiction.</p> <p>In an action to determine the ownership of a deposit of money in a savings bank in the names of “A. and B., payable to either or the survivor,” B. has no ground of exception to the introduction of evidence which justifies a finding that the deposit was made in the names of A., who has deceased, and B., for the reason that A. had already deposited the full amount upon which he could be allowed interest, and that there was no gift to B.</p>

Indictment, under Pub. Sts. c. 203, § 40, alleging that the defendant, on May 1,1894, at Springfield, “ being then and there the clerk, servant, and agent of the New York, New Haven, and Hartford Railroad Company, a corporation then and there duly and legally established ” under the laws of said Commonwealth, “ did then and there, by virtue of his said employment, have, receive, and take into his possession certain goods, chattels, and property, to wit, fifty pieces of…

<p>Seven actions of contract, upon policies of insurance against loss by fire on property of the plaintiff in Springfield. The cases were tried together in the Superior Court, before Hopkins, J., who, at the defendants’ request, directed the jury to return a verdict for the defendant in each case, and reported the cases for the determination of this court. The facts appear in the opinion.</p>

<p>Bill in equity, filed July 19, 1895, to set aside a trust deed executed by the plaintiff to the defendant. Hearing before Holmes, J., who dismissed the bill; and, at the plaintiff’s request, reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Replevin—Pledge — Statute.</p> <p>If A., who is the salesman of B., obtains goods of him, not by false and fraudulent representations, but pursuant to a custom of B. to deliver goods to A. with authority to sell them either for cash or on conditional contracts of sale, and A. pledges them to C. as security for the payment of money lent to him by C., B. cannot replevy the goods of C.; A. must be regarded as a person intrusted with merchandise, and having authority to sell the same, within the meaning of Pub. Sts. c. 71, § 3.</p>

Contract by Charles E. Legg and Bruce W. Hobbs, copartners as Legg, Hobbs, and Company, against William L. Vinal, J. Benjamin Palmer, and Thomas W. Lawson, upon a promissory note for $3,791.20, dated December 7, 1892, payable in four months after date to the order of the plaintiffs, signed by the defendant Vinal, and indorsed by the other defendants, who were alleged to have written “ their names upon the back of the note before the delivery thereof to the plaintiffs ”; and…

<p>Contract, by the treasurer of the Worcester Lunatic Hospital, for the support therein of Joseph V. Torrey. The plaintiff demurred to the answer. In the Superior Court the demurrer was sustained, and judgment ordered for the plaintiff; and the defendant appealed to this court. The facts appear in the opinion.</p>

Contract on an account annexed, to recover certain sums of money alleged to have been paid by the plaintiff at the defendant’s request. Trial in the Superior Court, without a jury, before Hammond, J., who found for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.

<p>Fire Insurance — Mutual Company — Oral Contract of Insurance — Evidence — Usage —Principal and Agent — Secret Limitation of Agent’s Authority.</p> <p>In an action against a mutual fire insurance company upon an alleged oral contract of insurance, evidence of a general custom and usage, to the effect that persons authorized by such a company in this Commonwealth to solicit insurance can bind the company until notice of the refusal of the risk by the company is received by the agent and communicated to the person desiring insurance, is admissible.</p> <p>There is nothing in St. 1887, c. 214, §§ 44, 45, relating to mutual fire insurance companies, nor in the by-law of such a company providing that “ the directors may authorize the president and secretary to make insurance, and will issue policies at such rates of insurance and under such limitations and restrictions as they shall prescribe,” which prevents the company from making an oral contract of insurance.</p> <p>A limitation upon the authority of an agent of an insurance company, by private instructions given to him by the officers of the company, cannot bind a person with whom he makes an oral contract of insurance, if such person has no knowledge of the limitation.</p>

<p>Indictment for manslaughter, in causing the death of John E. Burns by stabbing him with a knife-, on May 4, 1895, at Boston. At the trial in the Superior Court, before Sheldon, J., the jury returned a verdict of guilty; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Loss of Life — Street Railway — Rights of Traveller and Railway in Street — Due Diligence — Law of the Road — “ Gross Negligence ” — Instructions to Jury.</p> <p>In an action against a street railway corporation for the death of G., whose cart attached to a horse which he was driving was struck by an electric car while he was attempting to cross the railway tracks, the plaintiff requested the judge to instruct the jury that, “when the motorman saw that G. was proceeding as though to cross the track, it would be his duty, so far as lie was able, to reduce the speed of his car, and stop the same before reaching the point where G. was crossing.” There was conflicting evidence as to the speed with which the car was coming and as to what was done by the motorman, and the jury were fully instructed upon this branch of the case. Held, that the request was properly refused.</p> <p>While a traveller driving upon a street on which an electric railway runs has a right to cross the street, an electric car has also a right to proceed on its course, and both the traveller and the motorman in charge of the car are bound to use proper care to avoid a collision.</p> <p>It is incumbent on the plaintiff, in an action under St. 1886, c. 140, against a street railway corporation for the death of his intestate, who was injured by an electric car while he was attempting to cross the railway tracks, to show that the intestate, at the time of the accident, was in the exercise of “ due diligence ”; and, if there is no evidence that the motorman was unfit, it is a question for the jury whether the intestate exercised due diligence and whether the motorman was grossly negligent or careless.</p> <p>A person driving along a street which leads into, but does not cross, another street upon which an electric railway runs, is not bound, after entering upon the latter street, to cross over to the right hand side of that street in the direction in whicli he is going, but is entitled to use the left hand side of the street, unless and until he meets a vehicle coming from the opposite direction.</p> <p>The term “ gross negligence,” as used in St. 1886, c. 140, giving a right of action against a street railway corporation for causing the death of a person, means something more than a want of ordinary care.</p> <p>At the trial of an action against a street railway corporation for the death of a person who was injured by an electric car while he was attempting to cross the railway tracks, the judge instructed the jury as follows: “ Something should be said in a general way as to the speed of street cars. I can better illustrate what I mean by referring, perhaps, to steam railway cars. . . . Now a steam railroad as to its passengers, and its duty is a very rigid one, for it is required to use the highest degree of care and diligence to avoid injury to them, is not required to use a degree of care which is inconsistent with the prosecution of the business in which it is engaged. And notwithstanding, by reason of the rapid rate at which the cars move, injuries are inflicted, yet there can be no recovery for those injuries, unless something other than the rate of speed is shown as the alleged negligence of the railway corporation. To some extent the same consideration applies to the movement of the street cars.” The jury were further instructed, that they were to inquire whether the car, at and before the time of the collision, was moving at an excessive rate of speed, in view of the situation; that they were to take into consideration the character of the street, whether there were dwellings along the line of it, and whether other streets crossed the street in question or came into it; and that they were to determine, upon all the evidence, what the rate of speed was, and whether it was an excessive rate, and whether the motorman was or was not in fault in not checking the speed of the car. Held, that the plaintiff had no ground of exception.</p> <p>G. drove his team from another street, which did not cross it, into M. Street, upon which an electric railway ran, and, in attempting to cross the railway tracks so as to be on the right hand side of the street in the direction in which he was going, was injured by an electric car. In an action against the street railway corporation for his death caused by such injury, the judge instructed the jury as follows: “ Was there a necessity that G. as he came upon M. Street should cross the railroad track then and there, at that moment 1 What would a person of ordinary prudence and discretion have done, as he came where the car could he seen, as to driving his horse 1 Would he have attempted to cross the street then, or would he have turned to the left, and gone down upon the left hand side of M. Street until there was an opportunity to cross, if he desired on the whole to be upon the right hand side of the street so as to avoid the necessity of turning when he met a vehicle 1 You will say what the evidence is as to there being anything in the way to prevent G., instead of crossing the track, from turning for the time to the left; and, on the whole, you will say what, in the exercise of reasonable care, he ought to have done. What would a man of ordinary prudence and discretion have done at the same time 1 What was the room within which he could move ? ” Held, that the plaintiff had no ground of exception.</p>

<p>Composition Proceedings — Proof of Claims.</p> <p>If, by reason of errors in the allowance of claims, the Court of Insolvency confirms a composition which ought not to be confirmed, the interests of other creditors or of the debtor are injuriously affected, and, under Pub. Sts. c. 157, § 15, the proceedings can be revised and the errors corrected; and this court .will not only determine whether the confirmation of the composition should be set aside, but will determine according to the usual proceedings in equity the validity of the claims in dispute, and how far, if at all, the proofs of them should be altered or expunged; and the decree of this court upon these claims will be certified to the Court of Insolvency for its direction, as well as the decree upon the confirmation of the composition.</p>

<p>Disorderly House — Instructions —■ Common Law and Statute.</p> <p>At the trial of a complaint for keeping a disorderly house, the judge refused to rule, as requested by the defendant, that “the jury, in order to convict, must be satisfied that, while the defendant kept the house, it was habitually resorted to by drunkards, thieves, and prostitutes, who were either drinking, tippling, cursing, swearing, quarrelling, or otherwise misbehaving themselves, and it is not sufficient to support a conviction to prove that during a part of the time women whose reputation for chastity was bad frequented or resorted to the house”; and instructed the jury as follows: “A disorderly house is a house kept in such a way as to disturb, annoy, or scandalize the public generally, or the neighbors and passers by, or for the purpose of public resort for thieves, drunkards, prostitutes, or other idle and vicious people; and if the defendant kept the house for the harboring of prostitutes that they might resort to it and frequent it for the purpose of prostitution, and if she did so harbor prostitutes and they did so resort to it, frequent, and use it, the jury may convict.” Held, that the defendant had no ground of exception.</p> <p>The common law offence of keeping a disorderly house has not been in any part repealed or modified by Pub. Sts. c. 101, § 6, or by c. 207, § 13, and a conviction may be had although, at the trial of a complaint for such offence, the evidence shows that the house is not disorderly otherwise than as a place resorted to for immoral practices. Knowlton, J. dissenting.</p>

The following order was adopted by the House of Representatives on April 8, 1896, and thereupon transmitted to the Justices of^lie Supreme Judicial Court, who, on April 29, 1896, returned the opinion which is subjoined.