Volume 166 — Massachusetts Reports

Tort, by the mortgagee of personal property, against an officer, for the conversion of goods attached by him as the property of the mortgagor.

<p>Tort, for personal injuries received by the plaintiff while in the defendant’s employ. At the trial in the Superior Court, before G-askill, J., the jury returned a verdict for the plaintiff: and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Petition, filed July 22, 1895, for a writ of mandamus, to Charles Theodore Russell, Jr., Arthur Lord, and Edward P. Wilbur, Civil Service Commissioners of Massachusetts, praying that they be required to restore the petitioner to the highest place upon the list of candidates eligible for certification and appointment to a position on the detective force of the district police of the Commonwealth, a preference for certification and appointment having been given to one Edward D. Bean, conformably to the provisions of St. 1895, c. 501. Hearing before Allen, J., who, at the request of the petitioner, and with the consent of the respondents, reserved the case for the determination of the full court. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1895, and after-wards was submitted on the briefs to all the judges.</p>

Three actions of contract, upon five promissory notes and a bank check. The cases were tried together in the Superior Court, without a jury, before Richardson, J., who found for the plaintiff in each case; and the defendants alleged exceptions. The facts appear in the opinion.

<p>Tort, for personal injuries occasioned to the plaintiff in consequence of an alleged defect in a highway in the defendant town. At the trial in the Superior Court, before Braley, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.</p>

<p>Petition, filed February 14,1896, for a writ of habeas corpus to the sheriff of Suffolk. Hearing before Morton, J., who ordered the petition to be dismissed, and, at the petitioner’s request, reported the case. for the determination of the full court, in substance as follows.</p> <p>One Carey recovered judgment in the Superior Court at Brockton against the petitioner on January 7, 1895, and subsequently took out execution, upon which the petitioner was cited to appear and submit himself to an examination touching his estate before the police court of Brockton. He did not appear for examination, and was defaulted, and a certificate authorizing his arrest was duly affixed to the execution, and a default was had thereon. Afterwards the original execution was duly returned into court, and an alias execution was taken out by Carey on September 21,1895. A certified copy of the original certificate of arrest on the original execution was duly affixed to the alias. The petitioner was arrested on the alias on November 19, 1895, and on the same day recognized with surety for his appearance before some court having jurisdiction .to examine him as a poor debtor. Subsequently the petitioner gave notice of his intention to appear before the Municipal Court of the City of Boston to take the oath for the relief of poor debtors, and appeared and submitted himself to examination from time to time until February 8, 1896, when the court refused to administer to him the oath for the relief of poor debtors, and a mittimus was attached to the alias execution; and thereupon the petitioner was committed to the jail in the county of Suffolk upon the alias execution..</p> <p>If the ruling was correct, the order was to be affirmed; otherwise, the writ was to issue, and the petitioner to be discharged, or such other disposition made of the case as should seem meet.</p>

<p>Contract, upon a bond in the sum of $5,000, executed by the first named defendant as principal, and by the other as surety, the condition of which was that, whereas the plaintiff, as a deputy sheriff, by virtue of a writ in favor of the defendant McDonald against certain persons doing business under the name of Carr Brothers, had, at McDonald’s request, attached certain personal property, McDonald, his heirs, executors, or administrators, should indemnify and save harmless the plaintiff, his heirs, executors, and administrators, “ of and from all suits, damages, and costs whatsoever, whereunto he or they or any of them may be liable or obliged by law to pay to any person or persons by reason of the said attachment, or of any further intermeddling of” the plaintiff “with said personal property by virtue of said process.”</p> <p>In the Superior Court, judgment was entered for the penal sum of the bond, and the case was sent to an assessor to determine the amount for which execution should issue. The assessor made his report, finding that there was due from the defendants to the plaintiff the penal sum of the bond, with interest from the date of the writ. Mason, C. J. confirmed the finding of the assessor; ordered that execution issue for the sum so found to be due ; and, by agreement of the parties, reported the case for the determination of this court. If the finding and order were erroneous, execution was to be ordered for such sum, if any, as equity and good conscience required. The facts appear in the opinion.</p>

<p>Contract, on three promissory notes of $5,000 each, dated respectively July 24, 1890, August 12, 1890, and August 22, 1890, made by the defendant, each payable in eight months after date to its own order and indorsed by it in blank. Trial in the Superior Court, without a jury, before Mason, C. J., who reported the case for the determination of this court, in substance as follows.</p> <p>The notes were delivered to the Potter Lovell Company, a corporation organized and existing under the laws of this Commonwealth, and doing a general banking and note-brokerage business in Boston, for the purpose of having the same sold or procured to be discounted for the defendant, and the proceeds thereof remitted to it. The Potter Lovell Company thereupon, instead of so selling or procuring the notes to be discounted for the benefit of the defendant, in violation of the understanding between them, without the knowledge or authority "of the defendant, and without paying the defendant any consideration therefor, pledged the notes, together with a large amount of other commercial paper, to the plaintiff, for the purpose of securing the payment of certain notes given by the Potter Lovell Company to the plaintiff for loans made by the plaintiff to that company.</p> <p>The Potter Lovell Company had, from time to time, borrowed sums of money of the plaintiff, for which it had given its notes of various dates, and was indebted to the plaintiff on August 27, 1890, the date when the Potter Lovell Company stopped payment, in the sum of $315,453.96. The plaintiff then held, as collateral security for this indebtedness, notes of various corporations and individuals, delivered to it by the Potter Lovell Company, including those in suit, amounting to the sum of $347,717.34. The whole collateral security for the several notes was held under the understanding expressed in the following letter from the Potter Lovell Company to the plaintiff, dated July 2, 1885: “ You are hereby authorized to apply any securities you may have in your hands at any time belonging to us, to any indebtedness of ours to your institution, without regard to the specifications of the notes or memoranda you may hold.”</p> <p>The notes in suit had been delivered by the Potter Lovell Company to the plaintiff in August, 1890, as collateral security for the indebtedness of the Potter Lovell Company to the plaintiff, in exchange for other commercial paper held as such collateral security, and were received by the plaintiff in good faith and in the ordinary course of business, and without knowledge of the circumstances under which the Potter Lovell Company had received the notes from the defendant.</p> <p>Since the failure of the Potter Lovell Company, the plaintiff has received from realization of the collateral security deposited with it by that company, and in the plaintiff’s hands when that company stopped payment, the sum of $324,276.24, which was more than sufficient to pay the debt of. the Potter Lovell Company to it, by the sum of $8,822.28, which sum it still retains.</p> <p>Of this sum so collected by the plaintiff, $264,276.24 were the proceeds of commercial paper which had been received as collateral security by the plaintiff, and had been paid by the makers without question as to the Potter Lovell Company’s ownership of and right to .pledge the paper.</p> <p>The remaining $60,000 of the amount so collected by the plaintiff was received in payment of three notes of $5,000 each, made by David Cummings and Company; one note of $5,000, made by the Suffolk Cordage Company; and eight notes of $5,000 each, made by the Higganum Manufacturing Company.</p> <p>The plaintiff offered to prove that these last mentioned notes,' twelve in number, were received by the Potter Lovell Company from the makers under the same circumstances as the notes in suit were received from the defendant; and that they were paid to the plaintiff by such promisors with a formal notice to the plaintiff by the promisors of their reservation of all legal right in the premises, and of their right to share in any surplus remaining in the hands of the plaintiff after satisfaction of its debt from the Potter Lovell Company.</p> <p>The judge excluded this evidence; and found for the defendant.</p> <p>The case was argued at the bar in January, 1896, and after-wards was submitted on the briefs to all the judges.</p>

<p>Personal Injuries — Employers’ Liability Act — Due Care — Assumption of Risk —Board of Public Works — Statute — Sewer— Certiorari.</p> <p>In an action against a city under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to a laborer in the construction of a sewer by the caving in of one side of a trench in which he was working, the evidence justifying a finding that he was in the exercise of due care, and that the accident was due to a negligent omission to shore up the sides of the trench by those whose sole or principal duty was that of superintendence, the question whether the plaintiff accepted the risk of injury from want of proper shoring was on the evidence for the jury.</p> <p>It is no defence to an action against a city under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to a laborer in the construction of a sewer, that the plaintiff was not an employee of the city but of its board of public works, which was established by St. 1889, c. 167, as amended by St. 1890, c. 342; as those statutes do not so change the law as to make the acts of the board or its officials in the construction of sewers acts of public officers.</p> <p>Having the power to lay and construct sewers, and having allowed a sewer to be put in course of construction as a public sewer by the officials of the city and under an appropriation of its money for the purpose, and having used the sewer as an actual part of its sewer system, the city is not to be excused for a negligent failure to give a laborer a reasonably safe place in which to work by saying, in an action against it for personal injuries occasioned to him while engaged in the construction of the sewer, that it was not legally established.</p> <p>While irregularities and omissions in the laying out or establishment of a sewer may be taken advantage of on a petition for certiorari, they cannot be taken advantage of by a city in a collateral proceeding brought against it for personal injuries by a workman who has been employed by its board of public works upon' the footing that the city had the right to build the sewer.</p>

<p>Petition to the Superior Court for a jury to assess damages for the taking by the respondent city, for a public street, of a tract of land belonging to the petitioner in that part of Boston formerly Dorchester, called Tuttle Street. At the trial, before Hopkins, J., the jury returned a verdict for the respondent; and the petitioner alleged exceptions, which appear in the opinion.</p> <p>The case was argued at the bar in November, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p>Two ACTIONS OP replevin, to recover a quantity of goatskins, sold by the plaintiff to the firm of Phelps and Lombard, and attached by the defendant, a deputy sheriff, on a writ against that firm. The cases were tried together in the Superior Court, "before Hammond, J., who directed the jury to return a verdict for the defendant in each case; and the plaintiff alleged exceptions. The material facts appear in the opinion.</p>

<p>Contract as affected by Death of Partner — Breach of Contract to employ a Person for a Second Year — Evidence.</p> <p>A contract of service is not dissolved by the death of one of the partners with whom it is made, if the business goes on without a break and the parties seem to have assumed that the contract was not ended by the death of the partner.</p> <p>A firm composed of A. and B. entered into a written contract with C. to employ him for a year, with provision as to employment for an additional year. Before the termination of the first year B. died and D. became a partner of A., the new firm taking the assets and assuming the liabilities of the old one. Thereafter C. was paid out of the funds of the new firm, and, in an action by him on the written contract against A. and D., “copartners under the firm name of A. and B.,” for refusing to employ him a second year, testified that he was referred to D. for further discussion of his relations with the firm, and had several interviews with him, in which D. wanted to terminate the contract. Held, that the signature to the contract did not bind D., but that the Superior Court might allow the plaintiff to discontinue as against D., and to take a judgment against A.</p> <p>At the trial of an action on a written contract for failure to employ the plaintiff for an additional year, a letter of his answering the reasons for dissatisfaction given in the notice from his employer, as required by the contract, that he would not be employed beyond the year, is admissible only for what light it may throw on the defendant’s reply and subsequent conduct, and not as evidence of admissions by the defendant.</p> <p>Where the right of refusal to employ a person a second year is placed by a written contract upon special causes, and is restricted more than the implied right to discharge for cause, at the trial of an action on the contract for failure to employ the plaintiff for the additional year the defendant cannot be allowed to prove other causes than those specified in the contract.</p>

<p>Fire Insurance — Damage caused by Smoke from Soot ignited in Ghimney by Fire in Stove and Obstruction of Flue.</p> <p>If a fire lighted in a stove by the occupant of the room containing it, for the purposes of his business, ignites the soot accumulated in the flue of the chimney into which the pipe of the stove enters, and the flue becomes obstructed, at a bend therein, by the falling of the lining of the chimney and scales of soot, causing the smoke from the burning soot to escape into the room and damage property therein, such .damage is covered by a policy of insurance upon the property against all loss or damage by fire.</p>

<p>Personal Injuries — Negligence — Master and Servant — Act done by a Servant not as a Means or for the Purpose of performing the Master's Work.</p> <p>A foreman, while the work on a building undertaken by several men under his direction is necessarily suspended while rolls of paper are being unloaded from a van and rolled into the basement, has no authority to bind his employer by ordering his men to assist in the unloading; and, if he does so order any of his men, the employer is not responsible for their acts while so assisting in unloading.</p>

<p>Bill in equity, filed November 16, 1894, by the trustees under the will of Aaron H. Allen, to obtain the instructions of the court as to the construction of the will. The case was heard by Knowlton, J., and reserved by him for the determination of the full court. The facts appear in the opinion.</p> <p>The case was argued at the bar in December, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p> Constitutionality of Statute relating to Stables in Cities. </p> <p>The provisions of St. 1891, c. 220, prohibiting the erection, occupation, or use of any building in any city for a stable for more than four horses, unless first licensed so to do by the board of health of the city, are an exercise of the police power of the Commonwealth, and are constitutional, although no provision is made for compensation and no right of appeal is given.</p>

<p>Meaning of “ My Wife ” in a Will.</p> <p>The designation “my wife” in a will will be held to mean the woman to whom the testator had been married and with whom he had lived for thirty-five years, down to the time of his death, and whom he had held out to the world as his wife, and not another woman, his lawful wife, whom he had deserted in a foreign country forty years before he died, if that conclusion seems justified by the attendant circumstances in connection with the will.</p>

<p>Petition to the judge of probate of the county of Suffolk, by Joseph S. Bigelow, trustee under the will of Joseph Smith, praying the instructions of the court as to his duties thereunder. The judge decreed that the residue be distributed in equal shares among ninety-three persons named, “ said above named persons being and including all the nephews and nieces of the testator living at the death of Anne, daughter of the testator, being children of the testator’s brother and sisters; also all the grand-nephews and grand-nieces of the testator living at the death of said Anne, being the grandchildren of the testator’s brother and sisters; also all the issue, living at the death of said daughter Anne, of such grandchildren of the testator’s brother and sisters as had died before the death of said Anne.”</p> <p>Harvey Clap and Albert S; Eells appealed to this court. Barker, J. reserved the case for the determination of the full court. The facts appear in the opinion.</p>

<p>Contract, to recover the amounts of two judgments, the defence to which was a discharge in bankruptcy. Trial in the Superior Court, without a jury, before Mason, C. J., who ruled that the discharge was a bar to the actions, and found for the defendant. The plaintiff alleged exceptions, the nature of which appears in the opinion.</p>

<p>Bill in equity, to restrain the defendant from prosecuting an action at law to recover the amount of two judgments. Trial in the Superior Court, before Mason, C. J., who dismissed the bill, on the ground that the plaintiff had a complete remedy at law by pleading his discharge in bankruptcy in the action at law; and the plaintiff appealed to this court. The facts appear in the opinion.</p>

<p>Two BILLS IN EQUITY, each filed July 5, 1893, by the executors of the will of Samuel D. Warren, in behalf of themselves and all other stockholders of the Para Rubber Shoe Company similarly situated; the first being against that corporation, William S. Houghton, George D. Clapp, and Elizabeth E. Coolidge, administratrix of the estate of Albert L. Coolidge, to enforce claims of the corporation against the members of the late firm of Houghton, Coolidge, and Company, founded upon their “'alleged wrongful and fraudulent conduct as selling agents of the corporation; and the second against the corporation and said Coolidge as such administratrix, to enforce in addition claims of the corporation founded upon alleged negligence and want of fidelity on the part of Coolidge in the discharge of his duties as an officer of the corporation. Each bill alleged that a former bill in equity was brought by the corporation against the present individual defendants, demurrers to which were sustained, which bills were, on July 5, 1893, dismissed by consent of the parties. The individual defendants demurred to the bills. Hearing before Barker, J., who reserved the cases for the determination of the full court. The facts appear in the opinion.</p> <p>The cases were argued at the bar in December, 1895, and afterwards were submitted on the briefs to all the judges.</p>

<p>Replevin of a piano. At the trial in the Superior Court, before Hammond, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions! The material facts appear in the opinion.</p>

Tort, for the loss of the hand of the plaintiff, who was a brakeman in the defendant’s employ, occasioned by the alleged improper construction and condition of the defendant’s car. Trial in the Superior Court, before Mason, 0. J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, the nature of which appears in the opinion.

<p>Tort, for the conversion of a quantity of brick.</p> <p>Trial in the Superior Court, without a jury, before Dunbar, J., who found for the plaintiffs; and the defendants alleged exceptions. The material facts appear in the opinion.</p>

<p>Land Damages — Public Park — Taking by Purchase — Equitable Title — Personal Property — Right of Owner of Buildings and Tenant at Will of Land to maintain Petition.</p> <p>A. was contemplating the erection of a new plant for his business, at a cost of sev- ■ eral thousand dollars, on land in a city belonging to the B. heirs, and known as the 0. farm, and was unwilling to put up the plant without an assurance that his investment and improvement should not be affected injuriously by any subsequent act of the B. heirs. The agent of the heirs said to him, “You may go ahead, put the buildings on, and the heirs shall never take any advantage of you.” He then put up his factory. Six years later he asked for a deed of the land under and appurtenant to the buildings, and was answered, “ We don’t want to cut into the farm now, but when we do cut it up you shall have a chance to buy.” Two years afterwards, when he was looking at a plan with reference to a contemplated addition to his buildings, the agent of the B. heirs said to him, “I should think you would want this lot,” pointing out the lot containing A.’s buildings, and mentioned a price, but A. did nothing; and, in the two following years, A. made some additions to his buildings. The land was sold subsequently by the B. heirs to the city for a public park. Held, upon a petition b3r A. against the city for damages under the statute authorizing the laying out of the park, that A. had no equitable title to the land.</p> <p>A tenant at will of land, upon which he lias erected buildings and occupied them for the purposes, of his business, and which is afterwards sold for a public park to a city, which notifies him to vacate the premises and gives him three months in which to remove his buildings, cannot maintain a petition for damages under the statute authorizing the laying out of the park, and requiring the city to pay “ all damages sustained by any person or corporation in property, by the taking of any lands or by any other thing done by said city under the authority of this act,” although the city, in its notice, reserves all rights, and does not admit the tenant’s title to the buildings.</p>

Contract, to recover damages for delay in discharging certain cargoes of coal from vessels sent to the defendant’s coal wharf in Boston by the plaintiff, in November and December, 1893, to be discharged and shipped by the defendant in cars over its road to customers of the plaintiff.

<p>Contract, to recover extra compensation as an expert. 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>

Petition for a writ of mandamus, to require the justices of the Municipal Court of the city of Boston to direct Afred A. and Simeon Marcus to submit to an examination touching their estate, under the proceedings for the relief of poor debtors.

Petition for a writ of mandamus, to command the justices of the Municipal Court of the city of Boston not to terminate the poor debtor proceedings of the petitioners against Frank T. Mason, pending in that court, and not to order his discharge from arrest, and to continue his examination, as required by Pub. Sts. c. 162, § 38, and to continue to hear and determine the petitioners’ charges of fraud, as required by Pub. Sts. c. 162, § 49.

<p> Action between Co-owners for Earnings of Vessel. </p> <p>The relation of quasi partnership between shipowners is, generally, only for the adventure, and, where accounts are settled and a balance struck at the eiid of each voyage, an action at law may be maintained by one part owner against the managing part owner for his share of the earnings of the vessel.</p>

<p> Constitutionality of By-Law of Town. </p> <p>The imposition in a town by a by-law of the duty upon the owners and occupants of estates abutting upon certain kinds of sidewalks only to remove snow and ice therefrom, and the forfeiture for a violation of the by-law, as a fixed penalty, of the maximum penalty authorized by Pub. Sts. c. 58, § 9, do not make the by-law void.</p>

<p>Promissory Note — Fraudulent Representations — Action — Defence — Recoupment — Pleading — Effect of Fraud of one Payee in Joint A ction.</p> <p>The maker of a promissory note given in payment for shares of stock in a corporation may avail himself, in defence to an action on the note by the payee, of false and fraudulent representations, inducing the sale, of the payee, who had all the stock of the corporation in his hands for sale and was negotiating at the same time with the defendant and with A. and B. to sell a part to each, that all the stock (of which all or none was to be sold) which he was selling to either of them was being sold for the same price, which was stated, and that this was the price which B. in particular was paying, such statements being made in answer to specific questions put by the defendant, who told the plaintiff that he would not make the purchase unless these were the facts; and such defence is not cut off by the fact that the shares were worth what the defendant agreed to pay for them.</p> <p>In an action by the payee against the maker of a promissory note given in payment for shares of stock in a corporation, if it appears that the plaintiff, who had all the stock of the corporation in his hands for sale and was negotiating at the same time with the defendant and with A. and B. to sell a part to each, falsely and fraudulently represented to the defendant, who was induced by such representations to buy, that all the stock (of which all or none was to be sold) which he was selling to either of them was being sold for the.same price, which was stated, and that this was the price which B. in particular was paying, such statements being made in answer to specific questions' put by the defendant, who told the plaintiff that he would not make the purchase unless these were the facts, the defendant is entitled to recoup the difference between what he paid for the shares and the price paid by B.; and an answer, which does not set forth in express terms that the defendant would have been able to buy the shares of the plaintiff at the same price that B. was to pay, but which shows that the difference between the two prices was what he claimed the right to recoup, is sufficient.</p> <p>Fraud of one of two payees of a promissory note, in the sale of stock for the price of which the note was given, may be availed of in defence to an action on the note by the payees jointly against the maker.</p>

<p>Equity Practice — Finding of Single Justice — Bona Fide Purchaser.</p> <p>A decree of a justice of the Superior 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>Upon a bill in equity against A. and B., among others, to reopen a foreclosure sale of mortgaged premises, to set aside subsequent conveyances of the same, and to redeem the premises from the mortgage, B. testified that A. ran after him on the street at about eight o’clock in the morning a few days after the foreclosure sale, proposed the purchase of the premises at a price which, if he had known the assessed value or held his present opinion, he should have deemed excessive, wanted the matter decided on the spot, asked for a small sum down and was content to leave the rest of the price on mortgage, told him the story of the premises and read the advertisement of foreclosure aloud, and finished the bargain in eight or ten minutes ; that at the agreed time the deeds were executed and recorded without further examination; and that he had made no further payments, and had had large dealings with A. for seven or eight years. Held,, that this evidence was sufficient to warrant a finding that B. was not a bona fide purchaser.</p>

<p>Party Wall — Deed — Equity.</p> <p>A., who had a house, one wall of which was on the boundary line between his premises and B.’s, made a deed poll authorizing B. to build a party wall as indicated by a plan drawing referred to, which showed a wall going to a height a little above A.’s first floor. The deed provided that “said wall when so built shall be and remain a party wall,” and that A., upon “ the completion of said wall,” shall pay a certain sum “ as full payment for one half of said entire wall ”; “ it being understood that either party may add to said wall in height ... or in case of destruction rebuild said wall, or any wall resting thereon, or any addition thereto, . . . using good materials and workmanship, and conforming to the building laws, and doing work from his own side if the other side is built upon.” B. built a sufficient party wall to the height above mentioned under A.’s wall, which thereafter was supported by it, occupied all of A.’s side of the division line, and in part extended across it. B. was erecting a large building, the intention to erect which was known to A. when he made the deed, and needed a much higher wall on the line. To have carried the party wall higher would have necessitated widening the foundation, which could not have been done on A.’s side of the division line because of a passageway there upon which he had no right to encroach. It"also w'ould have required the removal of A.’s wall, under which the party wall had been built. B. accordingly built a wall, the outer face of which was about four inches on B.’s side of the division line, on top of A.’s wall. Held, that A. could not maintain a bill in equity to compel the removal of the wall built by B. above his half of the party wall.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the fall of a window blind upon her. Trial in the Superior Court, without a jury, before Hammond, J., who found that at the time of the accident the blind was in the exclusive use and control of a tenant of the defendant, and found for the defendant. The plaintiff alleged exceptions, the nature of which appears in the opinion.</p>

<p>Replevin — Action — Title — Husbctnd and Wife — Evidence.</p> <p>Replevin cannot be maintained by one who is not the sole owner of the property replevied.</p> <p>In an action of replevin by a- married woman, if the defendant, who had attached the replevied property upon a writ against the plaintiff’s husband, contends that, although she had filed a certificate that she was carrying on business upon her separate account, the property belonged to her and her husband jointly, and the business was carried on by them jointly, evidence of the husband, on cross-examination, which has some tendency to show what the relations between him and his wife were respecting the business and the attached property is properly admitted; and evidence of the defendant and of the plaintiff in the writ who went with him when he served it, admitted solely as affecting the testimony of the husband, and as part of the conversation with him, and as explaining what he said and failed to say, is competent for that purpose.</p> <p>The writ upon which property was attached with the officer’s return upon it, and the schedule of the attached property, are admissible in evidence, in an action of replevin to recover the property, in justification of the defendant’s title, and are not rendered incompetent by the fact that, at the time when the replevin suit was brought, execution had been issued and levied upon the property attached.</p>

Trustee process. This case, which was brought by the Treasurer of the Common wealth, was heard before Mason, C. J., on two motions, the principal defendant having been defaulted: one, a motion of the plaintiff to charge the alleged .trustee, Mary Meagher, and the other her motion to be discharged.

Contract, for failure safely to transport a car-load of eggs and poultry from Farmington, Iowa, to Boston, via Chicago.

<p>Deceit — Evidence.</p> <p>No exception lies to the admission on cross-examination of evidence which, when admitted, the jury are told in substance to disregard if the facts should turn out to be what afterwards they appear to be.</p>

<p>Two petitions for writs of certiorari to quash the proceedings of the street commissioners of the city of Boston relative to widening and constructing Brighton Avenue, under the provisions of St. 1895, c. 268. The cases were heard on the petitions, the answers, the returns of the street commissioners incorporated therein, and a plan accompanying said returns, of which a copy is given on the foregoing page.</p> <p>The cases were, at the request of the petitioners, reported by Barker, J., for the consideration of the full court. If the decision of the court denying the petitions was correct, it was to be affirmed; otherwise such order was to be entered as law and justice might require. The facts appear in the opinion.</p>

<p>Mortgage — Foreclosure Sale — Equity.</p> <p>If the mortgagee of land, who foreclosed the mortgage under a power of sale therein, acted in good faith, and did all that his duty required in the effort to protect the mortgagor’s rights, the mere fact that the land sold for much less than it was worth is not alone enough to entitle the mortgagor to have the sale set aside.</p> <p>Equity requires a foreclosure of a mortgage of land containing a power of sale to be conducted with entire good faith, and with reasonable regard for the mortgagor’s interests, but it does not require the land to be sold for its value; it only requires reasonable effort to be made to avoid a sacrifice, and to obtain the value of the land.</p> <p>If the mortgagee of land, in foreclosing the mortgage under a power of sale therein, did all that could be expected and more than could be demanded of him, in the way of advertising and personal persuasion, to get bidders at the sale, and the mortgagor knew of the sale and attended it with his attorney, and by his conduct in twice making a bid which he could not make good, and in protesting against the sale, did all in his power to prevent a successful auction, and was the cause of the land being bid off at several thousand dollars less than had been offered before, he is not entitled to have the sale set aside.</p> <p>Where the conditions of a mortgage of land have been broken, the principal, interest, and taxes being overdue and unpaid, and a sale under the power in the mortgage has been advertised, adjournments of which sale have been made at the request .of the mortgagor, who has sufficient notice of the same to protect his interest, he cannot object that the adjournments were not advertised in proper form, no such advertisement, under the circumstances, being necessary; and if, upon the hearing of a bill in equity to redeem the land, it is found that the mortgagee honestly believed that no further reasonable adjournments wmuld be likely to get higher bids, the fact that the land was worth more than the mortgage is not' enough to impeach the sale.</p> <p>If the conditions of a mortgage of land are broken, the fact that the mortgagee, when foreclosing the mortgage under a power of sale therein, had in his possession a check for a part of the principal which the mortgagor had given him more than a year previously, but which the mortgagee had not been able to get paid, will not prevent a foreclosure.</p>

<p>Drilling or Parading with Firearms — Statute — Law and Fact — ° Constitutional Law.</p> <p>An ordinary breech-loading Springfield rifle, which has been altered and bored in the barrel near the breech, and the firing-pin of which has also been filed down so as to make it immovable, and which in this condition is incapable of discharging a missile by means of gunpowder or any other explosive, is a firearm within the meaning of St. 1893, c. 367, § 124, which prohibits all but certain bodies of men from drilling or parading with firearms; and at a trial of a complaint for a violation thereof the- question whether the statute includes the weapon produced and exhibited is for the court, and not for the jury.</p> <p>The provision of St. 1893, c. 367, § 124, which prohibits all but certain bodies of men from drilling or parading with firearms, is constitutional.</p>

<p>Indictment for perjury, as follows:</p> <p>“ The jurors for the Commonwealth of Massachusetts on their oath present, that Joseph Wright, late resident of Maynard, in the county of Middlesex and Commonwealth aforesaid, on the thirteenth day of May in the year of our Lord one thousand eight hundred and ninety-three, with force and arms, at Concord in the county aforesaid, before' the District Court of Central Middlesex, holden at Concord in said county of Middlesex, by John S. Keyes, Esquire, then and there being the standing justice of said court, a certain complaint, then pending in said District Court of Central Middlesex between the Commonwealth of Massachusetts and Edward T. McManus for the illegal keeping of intoxicating liquor for sale in this Commonwealth, came on to be tried and was then and there in due form of law heard and tried before said court, and the jurors aforesaid on their oath aforesaid do further present that upon said trial of said complaint as aforesaid between the parties aforesaid said Joseph Wright was then and there, to wit,- on said thirteenth day of May in the year of our Lord one thousand eight hundred and ninety-three at said Concord in said county of Middlesex, called as a witness, and that said Joseph Wright was then and there duly sworn by said John S. Keyes, then and there being the standing justice of said District Court of Central Middlesex, that the evidence which the said Joseph Wright should give to the said District Court of Central Middlesex then and there between the parties as aforesaid touching the matter then in question between said Commonwealth and the said Edward T. McManus should be the truth, the whole truth, and nothing but the truth; the said John S. Keyes then and there having sufficient and competent power and authority to administer the said oath to the said Joseph Wright in that behalf.</p> <p>“And the jurors aforesaid on their oath aforesaid do further present that at and upon the hearing and trial of the said complaint as aforesaid it then and there became and was a material question, whether certain intoxicating liquors seized at Stow in said county were the property of said McManus, and the said Joseph Wright, being so duly sworn as aforesaid and contriving and intending to prevent the due course of justice and of law, then and there in the said trial of said complaint upon his oath aforesaid before said District Court of Central Middlesex, between said parties as aforesaid falsely, corruptly, knowingly, wilfully, and maliciously did testify among other things in substance and to the effect following, that is to say, that one case of lager beer, a part of said intoxicating liquor seized at Stow as aforesaid, was the property of one James H. Clayton, and was purchased by him the said Wright for said Clayton with one dollar in money given to him the said Wright by the said Clayton for the purpose of purchasing one case of lager beer for him the said Clayton. That one case of lager beer, a part of said intoxicating liquor seized at Stow as aforesaid, was the property of one Michael Walsh, and was purchased by him the said Wright for said Walsh with one dollar in money given to him the said Wright by the said Walsh for the purpose of purchasing one case of lager beer for him the said Walsh.</p> <p>“ That one case of lager beer, a part of said intoxicating liquors seized at Stow as aforesaid, was the property of one Isaac W. Stott, and was purchased by him the said Wright for said Stott with one dollar in money given to him the said Wright by the said Stott for the purpose of purchasing one case of lager beer for him the said Stott. That one case of lager beer, a part of said intoxicating liquors seized at Stow as aforesaid, was the property of one John W. Church, and was purchased by him the said Wright for said Church with one dollar in money given to him the said Wright by the said Church for the purpose of purchasing one case of lager beer for him the said Church.</p> <p>“ That one case of lager beer, a part of said intoxicating liquors seized at Stow as aforesaid, was the property of one Nelson Anderson, and was purchased by him the said Wright for said Anderson with one dollar in money given to him the said Wright by the said Anderson for the purpose of purchasing one case of lager beer for him the said Anderson.</p> <p>“ Whereas in truth and in fact no part of said intoxicating liquors seized at Stow as aforesaid was the property of said James H. Clayton, and whereas in truth and in fact no part of said intoxicating liquor seized at Stow as aforesaid was purchased by him the said Wright for said Clayton, and whereas in truth and in fact said Clayton did not give to said Wright one dollar in money nor any other sum of money for the purpose-of purchasing for him the said Clayton one case of lager beer, and whereas in truth and in fact said Clayton did not give to said Wright one dollar in money nor any other sum of money for the purpose of purchasing for him the said Clayton any part of said intoxicating liquor seized at Stow as aforesaid, all of which he the said Joseph Wright then and there well knew.” There were similar allegations as to Walsh, Stott, and Church. The concluding allegation was as follows:</p> <p>“ Whereas in truth and in fact no part of said intoxicating liquor seized at Stow as aforesaid was the property of said Nelson Anderson, and whereas in truth and in fact no part of said intoxicating liquor seized at Stow as aforesaid was purchased by him the said Wright for said Anderson, and whereas in truth and in fact said Anderson did not give to said Wright one dollar in money nor any other sum of money for the purpose of purchasing for him the said Anderson one case of lager beer, and whereas in truth and in fact said Anderson did not give to said Wright one dollar in money nor any other sum of money for the purpose of purchasing for him the said Anderson any part of said intoxicating liquor seized at Stow as aforesaid, all of which the said Joseph Wright then and there well knew; but said Wright falsely, knowingly, wilfully, and corruptly did then and there on his oath aforesaid commit wilful and corrupt perjury, by then and there on his oath aforesaid and before said District Court for Central Middlesex, swearing to the falsehoods above set forth.</p> <p>“Against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>In the Superior Court, before the jury were impanelled, the defendant moved to qúash the indictment for the following reasons:</p> <p>“ 1. Because it sets forth no offence known to the laws of this Commonwealth.</p> <p>“ 2. Because said indictment fails in due precision and certainty in the allegations therein set forth.</p> <p>“3. Because no good and sufficient assignments are therein set forth or contained, and it does not allege that the defendant was required by law to take an oath according to the statute in such case made and provided. It nowhere sets forth in specific terms, as required by statute, that the alleged offence had been committed in a criminal case or civil suit or other proceedings, or that the testimony given by the defendant was material to the issue to which it is supposed to refer, nor does it sufficiently set forth the subject matter or any part thereof of which alleged statements were made.</p> <p>“ 4. It does not allege that the matter sworn to was material, or that the facts set forth as sworn to and upon which the perjury is assigned were sufficient in themselves to establish the materiality. An allegation or presumption that it might have been material is not sufficient.</p> <p>“ 5. Because it does not allege that the District Court of Central Middlesex was lawfully holden at Concord, in the count; of Middlesex, on the thirteenth day of May, A. D. 1893, or that said court had jurisdiction of the complaint referred to in said indictment.”</p> <p>Bishop,. J. overruled the motion; and the defendant excepted.</p> <p>At the trial, the evidence tended to show that on or about May 1, 1893, a complaint issued from the District Court of Central Middlesex against one Edwin T. McManus, charging him with the illegal sale of intoxicating liquors. At the trial of McManus upon the complaint in the district court, it was shown that during the month of April, 1893, a seizure of liquors had been made upon his premises. The liquors consisted of about two hundred and sixteen bottles filled with lager beer and packed in three barrels, and several quarts of whiskey and rum, the whiskey and rum being in other parts of the premises.</p> <p>The evidence for the government at the trial of McManus tended to prove that such liquors had been found upon his premises ; and that a conversation had been had by McManus with the officers at the time of the seizure, in which he told them that he expected the boys, referring to a new board of selectmen, would treat him as well as the old board of selectmen had done.</p> <p>The present defendant appeared at the trial of McManus as claimant of the lager beer seized, and was put upon the stand as a witness.</p> <p>At the present trial, Herbert P. Underwood, a selectman of the town of Stow during the year 1893, testified that he was present at the trial of McManus at Concord, and was a witness; that he was present at the seizure at the house of McManus; that there were seized three barrels containing a large number of bottles of beer, besides a large quantity of whiskey and rum; that McManus said to him, in substance, “ I hoped that you boys would treat me as well as the old board have done ”; that at the trial of McManus the present defendant testified that he purchased at Waltham the lager beer the day before the seizure, that he had had it sent out to the house of McManus by one George W. Taylor, that before he went to Waltham he had received from certain men living in Maynard one dollar each, and that this beer purchased in Waltham had been purchased for the men who had contributed one dollar each; and that the defendant, when asked, upon cross-examination, to give the names of the persons who had given him one dollar each, gave the names of Stott, Clayton, Walsh, and Anderson. The witness Underwood could not remember distinctly the full names ms given by the defendant, but testified that he thought they were Isaac W. Stott, John W. Church, James H. Clayton, Michael Walsh, and Nelson Anderson. Underwood further testified that the defendant did not claim to have any interest in the liquors other than the lager beer.</p> <p>John S. Keyes, justice of the District Court of Central Middlesex, testified in substance the same as Underwood, as did also Edward Fearns, a police officer of the town of Maynard. Judge Keyes testified that he presided at the trial in the district court; that he duly administered the oath to the present defendant as a witness; and that, after the latter had hesitatingly given four or five of the names as testified to by Underwood, hesitated still further and then gave the name of Anderson, but was not certain whether Anderson was the correct name or not.</p> <p>Isaac W. Stott, John W. Church, James H. Clayton, and Michael Walsh testified that during the year 1893, and for some time previous to that, they had all lived in Maynard; that they knew the defendant and had known him for some time previously to 1893; that they had never at any time given him a dollar or any other sum of money to purchase beer for them at Waltham or any other place ; and that they had never been interested in any beer that he had ever purchased.</p> <p>Patrick Campbell, Patrick J. Corners, Julius Leighton, Theodore Woolershide, and said McManus, called as witnesses for the defendant, testified that they were present at the trial of McManus and had heard the present defendant testify; and that he said that he was not certain that the names given by him of the persons who had advanced a dollar each for the purchase of beer were correct, that the names were in a book which he did not have with him, and that he did not know but he might be mistaken.</p> <p>The defendant testified that neither Clayton, Walsh, Stott, Anderson, nor Church, men whom he knew, had ever given him a dollar for the purchase of beer at Waltham, or at any other place; that when he said that they had done so, it was because he was confused as a witness and was physically exhausted from want of sleep, and because he did not have, when testifying, the book containing the names of the persons who had advanced him money; that he had at first refused to'give the names, because he had not his book which contained them; that, after he had given the names, he said he did not feel sure the names given were correct; and that there were nine persons in all, including himself, who had put in a dollar apiece, and for whom the beer was bought.</p> <p>At the close of the evidence, the defendant requested the judge to rule that there was no evidence sufficient to warrant the jury in finding a verdict of guilty, but the judge refused so to rule; and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Bill IH EQUITY, filed August 20, 1895, against Charles U. Cotting and Francis C. Welch, trustees under the will of Samuel K. Williams, Jonathan A. Lane, John C. Lane, and George S. Winslow, trustees under the will of George S. Winslow, and the Murdock Parlor Grate Company, which corporation was the tenant of Cotting and Welch, to restrain the defendants from forcibly interfering with the plaintiffs in the erection of a bridge across a passageway lying between two parcels of…

Contract, on a policy of insurance against loss by fire. Writ dated March 7, 1894. Trial in the Superior Court, without a jury, before Graskill, J., who found for the plaintiff for the full amount of the policy, and reported the case for the determination of this court. The material facts appear in the opinion.

<p>Indenture of Husband, Wife, and Trustee— General Covenants — Action.</p> <p>A trustee under an indenture, executed by him and a husband and wife after the last two named had separated and were living apart, may enforce for the benefit of the wife the covenant of the husband with him to the effect that the husband would pay to the wife for her support a certain sum of money a month while she so lived apart from him.</p> <p>Where a trustee and a husband and a wife executed an indenture, after the last two named had separated and were living apart, and an action was brought thereon by the trustee, for the benefit of the wife, against the husband, on the covenant of the husband with him to the effect that the husband would pay to the wife for her support a certain sum of money a month while she so lived apart from him, the court said that, whether the provision that the wife “ shall have the sole care and custody of their minor child E. during her minority, without any interference whatsoever on the part of said husband,” was void as against public policy or not, it was separable from the promise of the husband so to pay the money, and it must be taken on the report that the wife had supported the child during her minority, or at least that the husband had not been called upon to support her.</p>

Contract, on an account annexed, to recover the price of a car-load of laths. Answer, a general denial, and payment. Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptions in substance as follows.

<p>Information in equity by the Attorney General, at the relation of the mayor of the city of Lawrence, filed March 18,1895,. to enjoin the town of Methuen from furnishing water to such portions of the buildings and premises of the Arlington Mills as are situated within the city of Lawrence. Afterward, by amendment, the information was changed into a bill in equitjq with the city of Lawrence as complainant, and the Arlington . Mills was made an additional party defendant.</p> <p>The bill alleged that, acting under the authority of St. 1872, e. 79, the city of Lawrence had constructed and maintained a system of waterworks for the use of the city and its inhabitants; that the income from the water rates has not been sufficient to provide for the maintenance of the works and the interest on the water debt, and that the residue of the expense has been met annually by taxation; that the Arlington Mills is a corporation established under the laws of the Commonwealth, and located by its charter in Lawrence; that the land and buildings of the mills are in two parts, their principal tract of real estate, their largest mills, and their principal place of business being situated in Lawrence, and another tract of land with buildings thereon being situated in Methuen, and that they own a tract of real estate connecting the two establishments; that the city of Lawrence has laid water pipes to the buildings of the Arlington Mills situated in Lawrence, and has supplied them with water at the regular established water rates; that by St. 1892, c. 310, the Methuen Water Company was incorporated for the purpose of supplying the inhabitants of Methuen with water, and that thereafter the town of Methuen, acting under the authority of § 9 of that statute, took the franchise and property of the water company, and itself proceeded to construct and operate the waterworks; that the Arlington Mills have laid pipes from their mills in Lawrence through, their land into the town of Methuen, and connected them with the water works of that town, and that the town of Methuen furnishes water for the use of the buildings of the Arlington Mills in Lawrence, and that the mills have substantially ceased to take water from the city of Lawrence; and that in so furnishing water to the buildings of the Arlington Mills located in Lawrence the town of . Methuen is acting in excess of the authority conferred upon it by law, to the injury of the city of Lawrence.</p> <p>The prayer of the bill was that the town of Methuen might be enjoined from furnishing water to be used in any buildings or premises of the Arlington Mills situated in the city of Lawrence.</p> <p>The answer of the town of Methuen, admitting the lawful construction and maintenance of the waterworks by the city of Lawrence, and that it had laid pipes and had supplied water to the Arlington Mills, and reciting its acquisition under St. 1892, c. 310, of the franchise, property, and privileges of the Methuen Water Company, and its construction and maintenance of waterworks and water pipes, alleged that the Arlington Mills had laid pipes from their mills in Lawrence to a point within the town of Methuen, where they had connected them with the water pipes maintained in the streets of that town, and that the city of Lawrence still continues to supply the Arlington Mills with water in considerable quantities ; but that the force of the water supplied by the defendant is so much greater than such as can be supplied by the city of Lawrence as to make it important to the Arlington Mills to obtain a supply of water also from the defendant.</p> <p>Hearing on the bill as amended, and the answer, by Meld, C. J., who, by agreement of the parties, reserved the case for the consideration of the full court.</p>

Contract, on a policy of insurance against loss by fire. The case was submitted to the Superior Court, and, after judg- > ment for the plaintiffs for the full amount of the loss, to this court, on appeal, upon agreed facts, which, so far as material, appear in the opinion and in a note by the reporter.

<p>Certiorari — Abatement of Tax — Statute.</p> <p>The St. 1888, c. 315, § 1, entitledAn Act to enable tenants under obligation to pay taxes assessed on real estate to apply for an abatement thereof,” is not intended to apply to tenants who are also part owners of the real estate for which they pay rent, and the neglect which the statute excuses, saying that it shall not prevent the making of an abatement, is not the personal neglect of the tenant, but of some other owner of the land which the tenant is under obligation to pay taxes upon.</p>

<p>Ultra Vires — Alleged Violation of Statute — - Waiver.</p> <p>An arrangement by which a gas light company undertakes to make, at the risk and expense of a certain person, a full and fair trial of his process for the manufacture of gas, while carrying on its own works, and which is not an arrangement under which the works are to be carried on by that person, does not violate the provisions of § 4 of St. 1886, c. 346, entitled “An Act in relation to gas companies.”</p> <p>By the terms of a contract between a gas light company and A., the last named was to pay a deficiency on demand as soon as a statement certified by the company’s treasurer should be delivered to him. Upon receiving the statement, A. made no objection to it for form, but did object to the amount charged in it for coal, and made no other objection. The formal objection that it was not certified by the treasurer was apparent on its face. Held, in an action by the company against A. for the amount of the deficiency, that it was incumbent on A., in objecting to the document for a specific reason, to mention as well the formal objections which were apparent if he intended to rely upon them, and that the limited objection made and the lack oftother objection amounted under the circumstances to a waiver of any other or further statement.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while a passenger on the defendant’s car. At the trial in the Superior Court, before Lilley, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Certiorari — Taking Land already devoted to Public Use — Eminent Domain.</p> <p>The general words of a statute conferring power upon a City to “ take and hold by purchase or otherwise any and all sucli real estate and lands within said city as it may deem advisable,” and to “ lay out, maintain, and improve the same as a public park or parks,” are not intended to authorize the taking in fee of lands already devoted to public use as parts of the actual location of a railroad; and, the land being taken by metes and bounds, with all the buildings and structures thereon, without any exception, reservation, or proviso, the contention that by the taking the city has only a conditional fee, subject to the use of the land by the railroad for railroad purposes, and that the city, in whatever way it may use the land, has not interfered, does not intend to interfere, and will never interfere with the use of the land by the railroad for railroad purposes, cannot be maintained.</p>

<p>Contract, by a wife against her husband, to recover alimony decreed to her by the Superior Court, after she had been granted a divorce nisi.</p> <p>The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts-, the nature of which appears in the opinion.</p>

Contract, to recover back a portion of the plaintiff’s tax for the year 1894, levied for the construction of a sidewalk along his land, and paid under written protest. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the material portions of which appear in the opinion.

<p>Personal Injuries — Street Railway — Due Care — Negligence — Remoteness of Cause of Injury.</p> <p>A switch-stick flew from the hands of a conductor as he was using it on the top of an electric car and injured a person on the sidewalk of the street. The conductor was using the stick to free the trolley which had caught in a frog at the junction of some overhead wires. Similar accidents had occurred there half a dozen times before. Held, in an action for personal injuries, that there was evidence of the defendant’s negligence, either in defective construction of the trolley wires and pole, or in the conductor’s use of the switch-stick.</p> <p>A person, while either walking or momentarily stopping on the sidewalk of a street in a city, is not bound to take special precautions against his chance of being struck by a switch-stick flying from the hands of a conductor while he is using it upon an electric car.</p>

<p>Bill in equity, filed January 19, 1888, by the members of the firm of Rice, Kendall, and Company, in behalf of themselves and other creditors of Richmond J. Lane similarly situated, against said Lane, Edgar J. Sherman, and Charles U. Bell, trustees of the estate of Arianna Davis, and George H. Hunt, for the appointment of a receiver to take charge of certain trust property originally held in the name of said Lane as trustee, and by him conveyed to the defendant Hunt, to convert the same into money, and to distribute it among the creditors of the trust estate, and any surplus among the beneficiaries named in the trust deed. A receiver was appointed, and the case was afterwards sent to a master to hear and determine the validity of certain contested claims against the trust estate, among which were two presented by said Sherman and Bell as such trustees, and by Lewis Reed, said Hunt, and Charles G. Reed, trustees under the will of Washington Reed. To the master’s report thereon exceptions were filed, and heard before Holmes, J., who entered a decree, from which the excepting parties appealed to the full court. The facts appear in the opinion.</p>

<p>Petition in equity, filed October 4, 1895, by the receiver of the Commonwealth Mutual Fire Insurance Company, to restrain the Shenango Glass Company from enforcing an attachment of the property of the insurance company.</p> <p>At the hearing, before Barker, J., the case, at the request of the respondent, was reserved for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Bill in equity, by the executor of the will of Sally P. Taylor, to obtain the instructions of the court as to the con-, struction of the third article of the will.</p> <p>The case was heard by Morton, J„ and reserved for the consideration of the full court on the bill and answers. The facts appear in the opinion.</p>

<p>Assessment of Taxes — Demand for Payment on Resident Owner of Land — Recovery bach of Price by Purchaser at Tax Sale.</p> <p>Under the St. of 1889, c. 334, § 4, no demand for the payment of an assessment for the expense of the construction of a sidewalk is necessary upon a non-resident owner of real estate.</p> <p>If the owner of land is assessed for more than his due proportion of the expense of the construction of a sidewalk, the assessment is, by the Pub. Sts. c. 11, § 84, “ void only to the extent of the illegal excess," and he can recover damages not greater than the amount of such illegal excess, but a purchaser at a tax sale of such land cannot, by reason of such illegal assessment, be said to have “no claim upon the property sold," within the St. of 1888, c. 390, § 44, which will entitle him, upon seasonable offer to surrender or discharge the deed or to transfer the estate, to recover back the price paid therefor.</p>

Indictment, for burning a building at Cottage City, the property of the defendant, with intent to injure certain insurance companies. The fire was alleged to have occurred on November 13, 1894. At the trial in the Superior Court, before Braley, J., one Howland, called as a witness by the prosecution, testified that during the preceding summer the building alleged to have been burned had been occupied as a summer hotel.

<p>Petitioh, under Pub. Sts. c. 192, § 32, to establish a lien for the boarding and keeping of certain horses belonging to the defendants. Trial in the Superior Court, before Dunbar, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The horses for whose board and keeping a lien is claimed, were left at the stable of the plaintiff by Tobin Brothers, who held the horses under a conditional bill of sale from the defendants, in whom was the legal title.</p> <p>When the plaintiff took possession of the horses under the lien, they were worn out and unfit for use, and he kept them in the stable all the time for several weeks. Subsequently he used them in his own business whenever he had work for them, and during a portion of the time that he held them he used them daily on a hack, and derived therefrom some profit, which he appropriated to himself. During the whole of the time that they were so used they were in good condition, and needed exercise, and it was better for the horses to use them some. In answer to issues submitted to the jury, they replied that the horses were brought to the plaintiff or placed in his care with the consent of the defendants, and that there was due to the plaintiff for the board of the horses the sum of one hundred and one dollars and forty-six cents.</p> <p>The judge ruled that the acts of the plaintiff constituted a conversion, and that if he had ever had a lien he had lost it, and could not maintain the action, and at the request of the plaintiff reported the case for the determination of this court. If the ruling was correct, judgment was to be entered for the defendants ; otherwise for the plaintiff, for the amount found by the jury-</p>

<p> Gift inter Vivos. </p> <p>A. deposited money in a savings bank, and, being unable to sign his name, the</p> <p>liis</p> <p>treasurer of the bank wrote in the books of the bank “A. X , in trust for B., '</p> <p>mark</p> <p>payablé in case of my death to B.” A. also stated to the treasurer that he wanted his son to have it after his death. B., who was A.’s son, testified that, about four months after making the deposit, A. told him to take the book, saying somebody might take it, and that he should take it, and his own, and give it to B.’s niece; that B. took it, looked it over, and saw what it was, and said that he would leave it there until it was called for; and that he left it with his father until he died; that B. knew it was there for him; that his father reserved the right to draw what he saw fit, though B. knew that he would draw only a little at a time; and that his father told him that he could have the money when he wanted it. Held, that the jury were justified in finding that this constituted a valid gift inter vivas.</p>

Tort, for personal injuries. While the case was pending in the Superior Court, an agreement of reference was made. The questions upon the construction thereof, of the rule of court, and of the doings of the referees thereunder, are stated in the opinion.

<p>Promissory Note — Forbearance to Sue.</p> <p>Mere indulgence or delay on the part of the holder of a promissory note towards the payee and indorser in enforcing payment does not discharge him.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendants’ employ. The declaration contained three counts, the first at common law, and the second and third under the employers’ liability act, St. 1887, c. 270. Trial in the Superior Court, before Maynard, J., who, at the close of the testimony for the plaintiff, directed the jury to return a verdict for the defendants; and the plaintiff alleged exceptions, in substance as follows.</p> <p>The defendants had in their building in Boston a freight elevator which ran from the basement to the top story of the building, was enclosed in a brick shaft, and had openings at the basement floor and on the different stories. It consisted of a square platform with upright beams in the four corners, and was, with the exception of the beams, entirely open and unguarded on all sides, the space between the side of the platform and the brick shaft being about three inches in width. It was operated by a continuous rope, which ran between the side of the platform and the shaft.</p> <p>The plaintiff testified that, at the time of the accident, on September 23, 1893, he was fifteen years and four months old; that he entered the defendants’ employment on March 11, 1893; that he was employed at the outset by one Lawson, whom the evidence showed to be the defendants’ superintendent within the meaning of St. 1887, c. 270, and who the day after he came directed him to use the freight and not the passenger elevator in going to the upper floors; that several weeks before the accident Lawson also requested him to run the freight elevator on occasions when the man in charge was at dinner; that up to this time he. had never operated any kind of an elevator, and had received no instructions as to running this elevator; that up to three days before the accident he ran it five or six times during the noon hour, whenever any one called out, which was the only way by which to signal for the elevator ; that by Lawson’s direction, on the third day before the accident, he ran the elevator in the afternoon; that on the second day before the accident he ran it about three hours, morning and afternoon; that on the day before the accident, by Lawson’s direction, he ran it mostly all day in company with a man who had been hired that morning; and that, in his judgment, the elevator would go from the basement to the top of the building in about forty seconds, and the ordinary pull required to start it was a pull from his shoulder to his waist.</p> <p>The plaintiff further testified that on the morning of September 23 he saw the freight elevator in charge of one Kerin and a new man named Brown; that about 10.30 in the morning, by request of Lawson, he went on the elevator with Brown, and remained there until the time of the accident, running the elevator and answering calls, which were sometimes fifteen, sometimes thirty an hour; that he ran the elevator more frequently than Brown, because he was showing Brown how to run it; that when he went on the elevator he did not know what previous experience Brown had had in running an elevator, and that no instructions were given him in reference to teaching Brown ; and that at about half past three in the afternoon the plaintiff and Brown were on the elevator, which was at rest at the first floor, Brown being at the guide rope and the plaintiff in the corner diagonally across from him, leaning against a beam of the elevator, twelve inches wide, tying the lacing of his slipper, they having then been waiting about five minutes.</p> <p>The plaintiff then testified as follows: “ I was standing at this place, with my right leg up, fixing the slipper. Brown’s back was turned to me, and I was looking to Brown. My side was turned to Brown and Brown’s back to me. He started the rope, and the elevator gave a jump, threw me out on my side,” and the accident occurred.</p> <p>On cross-examination, the plaintiff testified that all he knew about running the elevator was to pull the rope, and stop and start it, and that this was all there was about running it; that after an hour’s time he knew that that was all there was to do with the elevator,- and that was what he tried to show Brown; that all the plaintiff was told to do was to start and stop it; that, if the rope was pulled a little harder, the elevator would jerk, would go up about a foot, settle back, and start again; that he was on the elevator in all about twelve times; that at the end of the first hour he knew perfectly well how to start and stop it, though he could not run it fast in the first hour; that a pull of eighteen to twenty inches was required to start it; that of the twelve times he ran it about an hour each time, and the remaining three times for six or seven hours at a time; that the accident happened because Brown started too quick; that he heard no call whatever; that he knew he was liable to be called; that he had shown Brown how to start and stop the elevator, but Brown could not stop at the right place, and used to pull too hard, although he did not do this all the time, but quite often; and that the elevator ran all right except for that jerking movement, which happened, as the plaintiff noticed, whenever the rope was pulled hard.</p>

<p>Personal Injuries — Assumption of Risk — Liability of Municipal Corporation under Employers’ Liability Act — Railroad — Special Servant — Notice.</p> <p>At the trial of an action for personal injuries there was evidence that the defendant, a municipal corporation, while improving its public grounds, was engaged in transporting gravel over a temporary track from a pit on its premises to a dump on the same premises by means of 'a locomotive, open gravel cars, and train hands hired by it from a railroad company, by which the track was owned and laid. While so engaged, the defendant’s foreman at the dump ordered the plaintiff and other laborers to get on the cars and go back to the pit; but whether he said anything as to where they should sit was in dispute. The plaintiff got on one of the cars, and, the floor being wet, sat on the edge, with his feet inside, holding on with both hands until thrown off and injured in consequence of the train passing rapidly over a switch, and then coming to a sudden stop. Held, that the plaintiff did not assume the risk of such negligent management of the train, and was- entitled to recover.</p> <p>The employers’ liability act, St. 1887, c. 270, applies to cities and towns.</p> <p>A short and temporary track built and owned by a railroad company, which, together with a locomotive and cars, is hired from the company by a city for the purpose of transporting gravel over it in connection with public improvements, is a railroad within St. 1887, c. 270.</p> <p>In an action against a municipal corporation for personal injuries, a notice under St. 1887, c. 270, which, after clearly stating the time and place of an accident, recites that the person injured was “ thrown from and run over by a car on a gravel train, and seriously injured by the negligent management of the said train on the said switch by some one then and there in the service of said city, and who was intrusted with and exercising superintendence over the work in which I was then engaged, or who had charge or control of the switch, locomotive engine, or train then and there operated as aforesaid,” with a further statement that the train, temporary track, and switch were defective and unfit for use, and that the injury was caused thereby, is sufficient..</p> <p>A notice under St. 1887, c. 270, is not defective in alleging different causes of the same accident, each of which is adequately stated.</p> <p>At the trial of an action against a municipal corporation for personal injuries received by a laborer in its employ through the negligent operation of a train of gravel cars, it appeared that, for the purpose of transporting gravel from one part of its premises to another, the defendant had made a contract with a railroad company by which the latter was to furnish a locomotive, cars, conductor, and trainmen to manage the same, to keep the locomotive and cars in repair, furnish fuel, supplies, rails, and ties, lay the track, and remove it when the filling was completed. The defendant agreed to pay a stipulated sum for the use of the track, cars, and trainmen, and to assume all risk of injury to the trainmen. The conductor had entire control of the train and trainmen, but it was his duty to have the train ready for the use of the defendant, from whose foreman he took instructions as to the trips he made. The railroad company gave no directions in regard to the work, and exercised no control over the running of the train except so far as the conductor’s oversight constituted such control. Held, that the conductor and other men employed on the train‘were the servants of the defendant.</p>

<p>Declaration — Misstatements by Architect to Owner as to Value of Work done by Builder — Damages.</p> <p>A declaration in an action of tort alleging that the defendant, an architect, falsely, negligently, and acting in collusion with the builder, gave a certificate to the owner of a building for a partial payment under the contract to build, and represented that the value of the labor and materials which liad then gone into the construction of the building would amount to the sum certified, in reliance upon which the owner paid to the builder the amount certified, states a legal cause of action.</p> <p>An architect is liable in damages for negligently erroneous statements to his employer as to the value of work done by a builder on the strength of which his employer overpays the builder, if such statements were independent of the certificate called for by the contract between his employer and the builder.</p>

Bill in equity, filed January 1, 1896, to compel the defendant to place the sum received by her for insurance on certain premises, of which she was life tenant, in trust for the plaintiff, as remainderman, until the decease of the defendant, with income payable to the defendant during life. The defendant demurred to the bill for want of equity. The Supreme Judicial Court sustained the demurrer, and dismissed the bill; and the plaintiff appealed.

Bill in equity, filed March 4, 1895, to obtain possession of premises in which the plaintiff claimed a leasehold, estate, and to enjoin the defendants Augusta Levy, Max Levy, Hermann Weiss, and Herman Greenbaum, from interfering with his occupation of the same. Hearing in the Superior Court, before Dunbar, J., who found the following facts, and reported the case for the determination of this court.

<p>Bill in equity, brought by the widow of Emanuel Nathan, against the executors of and the beneficiaries under his will, to set aside an ante-nuptial contract which she was induced to sign by the alleged fraud and misrepresentations of the said Nathan. The defendants demurred to the bill, on the grounds that the plaintiff had a plain, adequate, and complete remedy at law, and that there was no allegation in the bill that the plaintiff had waived the provisions of the will. The demurrer was overruled by Barker, J., who reported to this court the question whether it should have been overruled. The facts appear in the opinion.</p>

Contract, against a surety upon a poor debtor’s recognizance. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon agreed facts, the nature of which appears in the opinion.

<p>Appeal, under St. 1890, c. 127, from an order of the assessors of the city of Lowell, denying a petition for an abatement of a tax on personal property.</p> <p>Hearing in the Superior Court, before IÁlley, J., on an agreed statement of facts, which stipulated that the court might draw such inferences therefrom as a jury would be entitled to draw, and was in substance as follows.</p> <p>In the year 1894 the assessors of Lowell gave notice to the inhabitants to bring in true lists of their real and personal estates, and, within the proper time, the petitioner, who was a resident of Lowell, brought in, upon a blank form supplied by the assessors for that purpose, a list of her property not exempt from taxation. All the questions of the printed form were answered in writing, and before the list was brought in it was signed by the petitioner. Her property not exempt from taxation, as disclosed by the list, was as follows : “ Deposits in trust companies and national banks, etc., $114.86. 12-] shares Missouri Pacific it. R. 1 share West Michigan Lumber Co., par value $25.”</p> <p>In answer to the printed question, “ Was personal property other than that enumerated in this schedule held for you on the first day of May by other parties, as trustee or otherwise ? ” the list contained the following: “ Certain personal property is held in trust for myself and others under a written instrument by a trustee residing in Brookline, Mass., the details and nature of said property being unknown to me.”</p> <p>The petitioner delivered the list to one of the assessors, who asked her certain questions relating to the trust property, and who wrote her answer in pencil on the face of the list, as follows : “ I know some of the stocks, but don’t intend to tell; the income coming to me is $1,600 per year.”</p> <p>The blank form contained no question as to real estate, and no question relating to real estate was asked by the assessor. The petitioner then made oath before the assessor that the statement subscribed by her was true, and the list was filed.</p> <p>The assessors then made the following valuation of the property of the petitioner:</p> <p>“ Money, income, and all other unspecified per-</p> <p> </p> <p>“ 1 share Michigan Lumber Co...... 25</p> <p>“12J Missouri Pacific R......... 375</p> <p>Total valuation.......$25,400 ”</p> <p>and assessed a tax of $441.96 on the personal estate of the petitioner. The item of $25,000 was fixed by the assessors by computing approximately what capital would be required to produce an income of $1,600 at six per cent.</p> <p>The tax assessed upon the petitioner, was paid on October 20, 1894, under protest, and on December 21, 1894, she applied to the assessors for an abatement.</p> <p>At the hearing on the application, the petitioner being absent, her counsel was asked to disclose the trustee of the property mentioned in the petitioner’s statement, or the nature of the trust, but he declined so to do. After the hearing, the assessors addressed to the petitioner a letter of inquiry, which she received but did not answer, and they subsequently denied her application. At the' time that the petitioner brought in her list she owned a house and lot in Lowell, on which she lived, of which the assessors had a description on their books, and for which she was taxed, but this real estate was not mentioned in her list. The assessors did not provide blanks for the special purpose of making returns of real estate, but when a taxpayer desired to file a list of real estate, a blank intended primarily as an application to the assessors for abatement of taxes was adapted to that purpose, and in their notices the assessors always required taxpayers to include real estate in their lists.</p> <p>The assessors relied for information relating to real estate wholly upon their own observation, upon inquiry made by them, and upon their own records and the records in the registry of deeds.</p> <p>The omission to include real estate in the petitioner’s list of property was not considered by the assessors in assessing her tax, nor was it the ground upon which they refused her petition for an abatement.</p> <p>The judge found that the petitioner was entitled to an abatement, and ordered judgment to be entered for her in the sum of $433; and the respondent appealed to this court.</p>

<p>Petition for a writ of mandamus, requiring the respondents to audit and order payment of certain bills alleged to be due the petitioner for the rent of a building in Medway, occupied by a trial justice for said county as a court room.</p> <p>The respondents demurred to the petition, assigning as cause therefor that a trial justice has no power or authority under Sts. 1890, c. 440, § 11, and 1891, c. 70, as supplemented by St. 1891, c. 325, § 1, to make a county liable under his contract for the rent of a room used for his holding court. The Supreme Judicial Court sustained the demurrer, and denied the petition, and the petitioner appealed to the full court.</p>

<p>Estate of Deceased Person — Decree of Distribution — Assignment of Distributee's Share — Jury Trial on Appeal from Probate Court.</p> <p>If the administrator of an estate, when the distributees are known and their shares' undisputed, pays them what is due without a decree of distribution and credits the payments in the final account, and the distributees assent thereto, or, having notice thereof, make no objection to the allowance of the same, or, having been heard on the allowance, their objections are overruled, there is no reason why the account should not be allowed.</p> <p>An administrator who pays the share of a distributee on his order takes the risk of the genuineness and validity thereof, and in a hearing on the allowance of an account it must be determined by the court passing thereon whether payments made on the order are to be allowed or not; if the order is found to be valid, and the administrator to have paid thereon according to the terms of the order all that was due to the assignor, the payments should be allowed. If the assignor appeal to the Supreme Judicial Court, whether he is entitled to a trial by jury upon the validity of the assignment, qucere.</p>

<p>False Representations — Agency— Fraud.</p> <p>A. represented that he was the duly authorized agent of B. to accept a draft, and C., relying on such representation, which was untrue, gave up a prior security against the drawer, and received in its place a draft on B. accepted by A. Held, that A. was liable irrespective of the question of fraud.</p>

<p>Beneficiary Association — Failure to pay Assessment — “ Mortuary and Disability Purposes ” — Forfeiture of Policy — Waiver.</p> <p>It is no defence to an action upon a certificate of membership issued by a beneficiary association that the plaintiff’s intestate failed to pay an assessment “ for mortuary and disability purposes ” on notice, if it is open to the plaintiff under ■the agreed facts to contest the validity of the assessment, the case being governed by Margesson v. Massachusetts Benefit Association, 165 Mass. 262; and an offer to pay the assessment not accepted by the defendant and withdrawn by the bringing of the suit cannot be regarded as a waiver of any objection to the validity of the assessment.</p>

<p>Mandamus— Order of Board of Aldermen not approved by Mayor or returned to that Body— Charter of City— Order conferring Discretion on Mayor.</p> <p>If the mayor of the city of Waltham, not having approved an order of the board of aldermen for laying out a street, fails to return it to that body within ten days, under the charter of the city, St. 1893, c. 361, the order is in force.</p> <p>If an order of the board of aldermen of a city relative to repairing a street is merely an appropriation of a certain sum, with a requirement that it be expended by the superintendent of streets under the direction of the mayor, a writ of mandamus can only command the mayor to proceed to direct the expenditure upon the designated part of the street in such a way as to him seems best.</p>

<p>Bill in equity, filed July 2,1894, by the assignee in insolvency of Adelaide C. Clark, to set aside an assignment of certain accounts made by the insolvent as security for a debt due to the defendants.</p> <p>The case was heard in the Superior Court, before Dewey, J., who dismissed the bill, and, at the request of the plaintiff, reported the case for the determination of this court, in substance as follows.</p> <p>The insolvent, Adelaide C. Clark, was, in 1893, a dressmaker and milliner doing business in Boston, and being at that time indebted for goods sold to her by the defendants, Shepard, Nor-well, and Company, in the sum of about $1,700, she, on May 6, 1893, assigned to them as security for her indebtedness certain accounts due and owing to her, amounting in all to about $2,100, it being understood that the surplus of such accounts when collected was to be returned to Mrs. Clark if additional credit to that amount had not been furnished to her. Thereafter, on October 12,1893, Mrs. Clark filed a voluntary petition in insolvency, and the plaintiff was appointed assignee.</p> <p>Mrs. Clark testified that she carried on a large business as dressmaker and milliner in Boston; that at the time of the assignment to the defendants her assets were from $9,000 to $11,000, and her liabilities were about $16,500 ; that of the latter amount $6,500 were debts due mostly for merchandise; that her creditors included many of the large dry goods houses in Boston ; that she kept no regular books of account, and she estimated her assets and liabilities from investigations made at the time of the hearing; that most of these liabilities were overdue, and she was unable to pay them; that for several years prior to her assignment she had had an open account with the defendants, which, until the winter of 1893, had not exceeded $500, but at that time, her business increasing, she increased her account to such an extent that the defendants notified her that unless it was reduced they should refuse her further credit; that prior to said assignment one Collirton, representing the defendants, called frequently at her store to sell goods and collect money, and she told him that she could not make any large payment upon her account; that she did not have the money to■ pay it in full because collections were slow, but she occasionally made small payments; that one Webster, who had charge of the credits and financial matters of the defendants’ business, told her that her account must be reduced or further credit would be refused, and inquired as to the prospects of her making collections, to which she replied that the bills were all good, and she expected to collect them, when she would apply them on her account, but that she did not wish her credit stopped as her business was good; that thereupon Webster suggested, as a condition for the continuation of her credit, the assignment of certain accounts which were good; and that after the assignment credit was from time to time given her, but was finally refused, and at the time of filing the petition in insolvency her indebtedness to the defendants had increased. Mrs. Clark further testified that she did not know whether or not she told Webster or Collirton that she had other creditors besides the defendants, or that other creditors were pushing her, though in fact one creditor had brought suit against her; that she did not inform them of a mortgage upon her stock in trade; that she did not at the time of the assignment to the defendants intend or expect to go into insolvency; that her business was good; that she did not wish the defendants to refuse her credit, as she hoped that with it she could go on; that she did not believe herself to be insolvent or fully realize her condition; and that she did not figure her liabilities closely, but had a general idea of what she owed, and that she should be able to pay all her creditors in full.</p> <p>On cross-examination, in answer to the question whether she meant to prefer the defendants, she testified that she did not look'at it in that way, but was anxious to get more credit, and that she had never previously assigned her accounts.</p> <p>There was evidence for the defendants that in 1891 Mrs. Clark’s credit was good, but in the spring of 1893 she became slow in her payments, and in conversations with the defendants or their representatives both, she and her husband said that she was doing a good business, had some of the best trade in the city, and was amply able to pay all her bills, but that collections were slow, and she did not have much ready money; and that accounts due her were good, and that it would be all right. They did not tell the defendants that Mrs. Clark had other accounts, or mention the mortgage on her stock in trade. The defendants at one time refused her further credit, and subsequently ordered it to be continued, and sales were from time to time made to her until her insolvency. This was all the material evidence.</p> <p>The judge found that Mrs. Clark made the assignment within six months prior to filing her petition in insolvency; that at the time of the assignment to the defendants she was not able to pay her debts as they accrued in the ordinary course of business, and was insolvent, and that her total liabilities greatly exceeded her total assets; that the defendants had reasonable cause to believe Mrs. Clark to be insolvent only in the sense of not being able to pay her debts as they accrued in the ordinary course of business; that the assignment was not made in the usual and ordinary course of business, but that Mrs. Clark did not then contemplate going into insolvency, but thought that she would be able to keep on in business and pay.all her debts; that the assignment was not made by her in fraud of the laws relating to insolvency, or with a view to prevent the property from coming to her assignee in insolvency, or to prevent the same from being distributed under the laws relating to insolvency, or to defeat the object of, or in any way impair, hinder, impede, or delay the operation or effect of, or to evade any of the provisions of the insolvency law ; and that the defendants, when the assignment was made, did not have reasonable cause to believe Mrs. Clark was insolvent in the sense of not having sufficient property and assets to pay her debts, or that she was in contemplation of insolvency, and that the assignment was made in fraud of the laws relating to insolvency, or with a view to prevent the property from coming to her assignee in insolvency, or to prevent the same from being distributed under the laws relating to insolvency, or to defeat the object of, or in any way impair, hinder, impede, or delay the operation or effect of the provisions of the insolvency law.</p> <p>The case was argued at the bar in December, 1895, and after-wards was submitted on the briefs to all the judges.</p>

<p>Fraud — Action — Duress — Evidence — Damages.</p> <p>The use by a creditor of promises of assistance to his debtor in his affairs as a device to lure him from another State into this Commonwealth, with intent to cause his arrest and compel him to pay for his release, is a sufficient fraud upon which to found an action.</p> <p>Money paid to be free from a wrongful arrest may be recovered.</p> <p>In an action for fraudulently inducing the plaintiff to come from another State into this Commonwealth, arresting him and compelling him to pay for his release, if the defendant has been allowed to testify that he had no intent to lure the plaintiff here at the time when he made the promises which induced the plaintiff to come, evidence bearing on the defendant’s intent at a later time is immaterial.</p> <p>Where a person was induced fraudulently to come from another State into this Commonwealth by a creditor, who caused his arrest and compelled him to pay a sum of money for his release, the former, in an action against the latter, was permitted to recover, in addition to that sum, a further sum paid by him to settle another suit, in view of the circumstances of the case.</p>

<p>Bill in equity, filed August 2,1893, to obtain the instructions of the court as to the distribution of a fund deposited by the Northwestern Guaranty Loan Company, one of the defendants, in trust with the plaintiff.</p> <p>The case was referred to a master, and upon the coming in of his report was, by Holmes, J., reserved thereon, and the exceptians thereto, for the consideration of the full court. The material facts appear in the opinion, and in notes by the reporter.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the negligence of one Alexander McGilvrey. At the trial in the Superior Court, before Blodgett, J., the only question was whether McGilvrey was acting as a servant of the defendant for whose negligence the defendant was liable. At the close of the evidence, the judge, at the defendant’s request, directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Boston Subway Act — Acceptance of Statute by City — Locus Standi— Constitutionality of Statute — “Public Use” — Eminent Domain — Talcing Land already devoted to Public Use — Waiver of Contract — Municipal Debt Limit — Right to construct Subway on Public Garden — “Building” — “Leave of the General Court” — Substituted Legislation — Consent of Inhabitants of City.</p> <p>Judicial notice should be taken of the acceptance of a statute by the voters of a city at an election held in accordance with its provisions.</p> <p>The vote to accept a statute, at a special election held in a city in accordance with its provisions, is sufficient to give taxpaying inhabitants of the city a standing to maintain a bill in equity, under Pub. Sts. c. 27, § 129, to prevent an alleged illegal use of public money under the authority of the statute.</p> <p>It is no objection to the validity of St. 1894, c. 548, authorizing the construction of a subway in Boston, that it imposes a heavy debt upon the city and to a certain extent takes away from the city the control of its streets; and the acceptance of the statute by the voters of the city is a sufficient consent to its provisions, if such consent were necessary.</p> <p>It is immaterial that by St. 1894, c. 548, authorizing the construction of a subway in Boston, the work is not put in charge of the street commissioners of the city. The Legislature may provide for doing the work at the expense of the city, but through other agents than those regularly appointed by the city, and may impose liability on the city, incur the expense, and require payment by the city; and the acceptance of the statute by the voters of the city precludes objection on this ground by taxpaying inhabitants,, even if such objection would otherwise have been open ; and these considerations apply to the bridge over Charles River provided for in § 30, as well as to the subway itself.</p> <p>The construction of a subway in Boston, under the authority conferred by St. 1894, c. 548, which empowers the Transit Commission to grant a lease of it, when finished, to any street railway company for fifty years, is for a public use; and it is within the constitutional power of the Legislature to order or sanction taxation for it.</p> <p>The St. 1894, c. 548, authorizing the construction of a subway in Boston, is not in violation of the Fourteenth Amendment to the Constitution of the United States.</p> <p>A person cannot be heard to object to the constitutionality of a statute on grounds which only affect others than himself.</p> <p>Land already appropriated to one public use may be taken by authority or direction of the Legislature for another public use.</p> <p>A body of persons in their capacity of taxpaying citizens of Boston, or as voters, or as a constituted part of the public at large, can assert no right to the, continued use of the Common or of the Public Garden as public parks, or to have compensation paid for the surrender of such use, against the combined action of the Legislature in passing St. 1894, c. 648, authorizing the construction of a subway, and of the inhabitants of the city in accepting the statute.</p> <p>If the provision of St. 1859, c. 210, § 3, that no building, except such as are expedient for horticultural purposes, shall thereafter be erected upon the territory in Boston occupied by the Public Garden, constituted a contract between the Commonwealth and the city, the latter, being a party to it, may waive it, and the acceptance by the voters of the city of St. 1894, c. 648, authorizing the construction of a subway thereon shows such waiver.</p> <p>As the same authority which fixes the limit of a municipal indebtedness may change it, and as St. 1894, c. 548, authorizing the construction of a subway in Boston, and requiring, in f 37, the treasurer of the city to issue bonds, also provides that the debt shall not be included in determining the limit of indebtedness, there is no ground for the contention that the statute is invalid because the work to be done under it will increase the debt of the city beyond the limit - of indebtedness fixed by St. 1885, c. 178, § 2; it not appearing that the limit of indebtedness as thus extended will be exceeded by the issue of the bonds.</p> <p>Under Sts. 1894, c. 548, § 29, and 1895, c. 440, § 3, authorizing the construction of a subway in Boston, the Public Garden may be entered upon for such construction so far as is necessary in order to make a suitable connection with surface tracks, but no further. Pield, C. J., dissenting.</p> <p>The permission of the Legislature, given by St. 1894, c. 548, to build in Boston a subway such as is adapted for the uses and purposes described in § 25, by implication authorizes such a structure as is necessary and reasonable for those purposes, and, in the absence of any averment to the contrary in a bill in equity to have the statute declared invalid, it will be assumed that the present structure on the Public Garden is within this implied authority, and, if the subway is a “building,” the “leave of the General Court,” which is required by Pub. Sts. c. 54, § 16, for the erection of a building exceeding certain dimensions upon a public common or park, is given, by the giving of authority to enter with the subway upon the Public Garden for a short distance west of Charles Street.</p> <p>The legislation embodied in St. 1894, c. 548, authorizing the entry upon the Public Garden in Boston for the construction of a subway, and providing that the work shall not be begun until the statute has been accepted by a majority of the voters of the city, is a substitute, so far as the subway on the Common and Public Garden is concerned, for Pub. Sts. c. 54, § 13, providing that no street railway shall be constructed over a public common or park without the consent of the inhabitants of the city or town, and the acceptance of the subway act, by the voters of the city, furnishes all the consent on the part of the inhabitants that is necessary.</p>

Complaint, under St. 1895, c. 419, for being present where gaming implements were found.

<p>Complaint, -for keeping and maintaining a tenement for the illegal keeping and sale of intoxicating liquors.</p> <p>At the trial in the Superior Court, before Sheldon, J., there was evidence tending to show that the building was two stories in height and had five rooms, that the defendant had lived in it for ten years, that it was from seven to ten feet above the ground and rested upon railroad sleepers, which were so arranged in cob-work style as to form six separate supports thereunder, that a chimney rested upon a flat stone lying on the ground, and that there were steps without risers from a door to the ground.</p> <p>The defendant asked the judge to rule that the government had not shown that the building was a “ tenement,” within the meaning, of Pub. Sts. c. 101, §§ 6, 7, and that there was a variance between the allegation and the evidence. The judge refused so to rule, and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Insolvent Debtor — Right of Partnership Creditors to prove against Separate Estate of Insolvent Partner — Release of Cause of Action — “ Thing of Value” — Authority of Attorney to assent to Discharge — Loan to Insolvent for Deposit in Court — “Party aggrieved.”</p> <p>The creditors of a partnership may prove their claims against the separate estate in insolvency of one partner, and vote for an assignee and on the question of discharge, although the firm is solvent, and the insolvent partner has no assets. Knowlton, J. dissenting.</p> <p>A release of a cause of action in tort, obtained by a person within six months prior to his insolvency, upon the giving of a promissory note, the amount of which is afterwards proved against the insolvent estate, is not a “ thing of value,” within the meaning of Pub. Sts. c. 157, § 93.</p> <p>It is not necessary that there should be written evidence of authority on the part of an attorney to assent in the name of his principal to the discharge of an insolvent debtor.</p> <p>A sum of money, lent to a person to be deposited by him in court upon the beginning of proceedings in insolvency, is a debt due to the person advancing it, and he is entitled to prove his claim against the insolvent estate and to vote on the question of discharge.</p> <p>A creditor of an insolvent estate is not a “ party aggrieved," within Pub. Sts. o. 157, § 15, by the refusal of the Court of Insolvency to permit other creditors to withdraw their assent to the debtor’s discharge.</p>

<p>Bill in equity, to enjoin an alleged nuisance, and for damages for its continuance. Hearing before Holmes, J., who, at the request of the parties, reported the case for the determination of the full court, such decree to be made as law and equity might require. The facts appear in the opinion.</p>

<p>Contract, to recover the expenses incurred in filling a portion of the defendant’s flats, under a certain indenture. At the trial in this court, before Allen, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Certiorari — Abatement of Nuisance— Order of Assessment — Service of Notice — Evidence — Laches.</p> <p>If the record of the board of health of a city recites that notice conformably to Pub. Sts. c. 80, §§ 30, 31, of a hearing on the proposed abatement of a nuisance was served upon “ the owners of all land upon which it was necessary to enter, and the owners of all land benefited by the abatement of said nuisance, in person," an owner, although he has stood by and seen the work done without making any objections, and although he does not bring his petition for a writ of certiorari until the work has been completed at large expense, may show by • paroi evidence that the notice was not served upon him, provided that the question is not that of quashing the whole proceedings of the board in abating the nuisance on his land, but of simply quashing the assessment upon him. Holmes, Knowlton, & Barker, JJ. dissenting.</p>

<p>Trespass — Seiver — Injury to adjoining Land by Removal of Subsoil — Action — Negligence — Contractor and Contractee.</p> <p>If, in the proper performance of a contract with the Metropolitan Sewerage Commissioners for the construction of a public sewer, the surface of adjoining land, no part of which is taken by the commissioners, cracks and settles, and buildings thereon are injured by reason of the removal of the subsoil, consisting in part of quicksand, the owner of the land, thus deprived of its lateral support, may maintain an action for his injury against the commissioners; and it is immaterial that the soil was removed by means of pumps from the trench into which it had fallen by its own weight, or had been carried by percolating water. Holmes, Knowlton, & Lathkop, JJ. dissenting.</p>

<p>Two BILLS IE EQUITY, filed September 13, 1894, the first to redeem a parcel of land in Boston from a sale on execution, and the second to redeem the same parcel from a mortgage, and, by an amendment to the bill, to redeem the land from a tax sale. The cases were heard together, before Knowlton, J., who ordered a decree in each case confirming the report of a master to whom the cases had been referred, and dismissing the bill, with costs; and the plaintiff appealed to the full court. The facts appear in the opinion.</p>

<p>Contract. The declaration alleged that' the plaintiff was a creditor of the Commonwealth Loan and Trust Company, a corporation organized under the laws of the State of Kansas ; that in December, 1893, it recovered judgment against said corporation for the sum of $16,136.76, and, execution having been taken out thereon, no property of the corporation could be found to be taken in satisfaction thereof, and the same was returned to the plaintiff wholly unsatisfied; that the General Statutes of the State of Kansas of 1889, paragraph 1192, provide that, “ if any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any 6f the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; but no execution shall issue against any stockholder ” except by order of court, “ or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment ”; that thereafter, in accordance with said law, the plaintiff, not being a railway or a religious or charitable corporation, brought actions of contract against all the solvent stockholders to it known, severally, of said corporation, who were residents of Kansas and within the jurisdiction of its courts, to recover from each one an amount.equal to the stock then owned by him in said corporation, the several liability of stockholders under said paragraph 1192 having been judicially determined by the Supreme’Court of Kansas; that the plaintiff recovered in such actions a total sum of $2,959.13, and applied the same in partial payment of said execution, leaving unpaid thereon the sum of $13,177.63; that the defendant is a stockholder in said corporation, now owning ten shares of the capital stock thereof, of a par value of one hundred dollars each, and appearing as such stockholder upon the books of the corporation, whereby he is conclusively presumed to be a stockholder of said corporation within the meaning and liability of said paragraph 1192, according to the interpretation of said paragraph by the Supreme Court of the State of Kansas; that the defendant has not paid in good faith the just debts of the corporation equal to the amount of the stock held by him therein, or to any part thereof, since the assets of said corporation have been exhausted, which payment would operate pro tanto to discharge him of his stockholder’s liability under paragraphs 1192 and 1206 of the General Statutes of Kansas, of which the last named provides that “ no stockholder shall be liable to pay debts of the corporation, beyond the amount due on his stock, and an additional amount equal to the stock owned by him,” said paragraphs having been judicially interpreted to that effect by the Supreme Court of Kansas; that the defendant has no just claim in set-off against the corporation, which would wholly or in part discharge him of liability under the paragraphs, as interpreted by said court; that no action under paragraph 1192 has been brought against the defendant by any judgment creditor of the corporation prior to this action and been prosecuted to judgment, and said judgment been satisfied in whole or in part by the defendant, which payment would operate to that amount as a discharge of the liability of the defendant under the paragraphs as interpreted by said court, nor is any such prior action under paragraph 1192 now pending against the defendant; that the plaintiff has recovered no judgments which have been satisfied and applied in payment of its said execution, except as above set forth, and that it has brought no action under paragraph 1192 or otherwise, which, if prosecuted to final judgment and satisfaction thereof, will wholly satisfy said execution against the corporation, or reduce the amount unsatisfied on the execution below one thousand dollars, and that it seeks to recover the amount of one thousand dollars against the defendant, and no more, being only an amount equal to the par value of the stock held and owned by the defendant in the corporation; that the defendant owes it the sum of one thousand dollars under and by virtue of his liability as a stockholder of said corporation, as set forth in paragraph 1192, which liability is a contractual liability, and arises upon the contract of subscription to the capital stock of said corporation made by the defendant in becoming a stockholder, and that the defendant, in subscribing to the stock and becoming a stockholder, thereby guaranteed payment to the creditors of the corporation of an amount of the debt of the corporation equal to the par value of the stock held and owned by him, which should be payable to the judgment creditors of the corporation, who first pursued their remedy under paragraph 1192 against the defendant, until the amount as guaranteed has been paid by him, and that an action to enforce the liability is transitory, and may be brought in any court of general jurisdiction in the State where personal service can be made upon the stockholder, according to the interpretation of the liability under said paragraph, by the decisions of the Supreme Court of Kansas; that on July 16, 1894, William S. Hinman and Waldo H. Howard were, by the Circuit Court of the United States for the District of Kansas, appointed receivers for said Commonwealth Loan and Trust Company, and now report that the total indebtedness of the corporation, at the time when its property was wholly exhausted, for which the stockholders were liable to the full amount of the par value of their stock under paragraph 1192, amounted to not less than $300,000, and the total par value of all the shares of stock of the corporation amounted to $100,000; that therefore each stockholder is liable to the creditors of the corporation, in a suit against him, under paragraph 1192, for the full par value of his stock, and for a further, sum, in case any of his shares have not been fully paid for, equal to the amount unpaid upon their par value, but for no more, and that after each stockholder has once paid in full the amount of his liability, the debts of the corporation will not be wholly paid and discharged, so that all the stockholders are charged with said liability to the full amount, and there can be no contribution among the stockholders according to paragraph 1205 of the General Statutes of Kansas for 1889, which provides that, “ if any stockholder pay more than his due proportion of any debt of the corporation, he may compel contribution from the other stockholders by action ” ; that therefore no injustice can be done the defendant by enforcing the liability herein set forth in this action ; and that said statutes of the State of Kansas, as construed in the highest court of that State, impose a liability upon the defendant to the plaintiff as above set forth.</p> <p>The defendant demurred to the declaration, assigning as grounds therefor: 1. That it does not appear by said declaration that under the laws of this Commonwealth the defendant is under any liability to the plaintiff, but that the only liability of the defendant to the plaintiff set forth in the declaration is a liability under the laws of the State of Kansas, and only enforceable by the laws of that State. 2. That it appears from the declaration that on July 16,1894, in the Circuit Court of the United States for the District of Kansas, William S. Hinman and Waldo H. Howard were appointed receivers for the Commonwealth Loan and Trust Company; and that it does not appear therein that the receivers are not still in charge of the company, and have the sole right to sue for the company, and collect all indebtedness due the company by its stockholders, of which the defendant is alleged in the plaintiff’s declaration to be one; and that the plaintiff has not set forth any right vesting in it to sue the defendant in any court while the receivers are still in charge of the company. 3. That it does not appear that, at the date of the incurring of the liability in the declaration alleged, the defendant was the holder and owner of stock in the company.</p> <p>In the Superior Court the demurrer was sustained, and judgment ordered for the defendant; and the plaintiff appealed to this court.</p>

<p>Contract, upon an account annexed, for goods sold and delivered, consisting of certain castings, the items relied on being two charges on February 26, and one charge on March 14,1894. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that the plaintiff was a corporation duly established by law, and located in the State of New Hampshire; that the defendant was a corporation duly established by law, and organized on February 9, 1894; that since its organization it had had its usual place of business in Boston; that prior to February 9,1.894, three persons, namely, F. A. Chandler, Alfred J. Adams, and James H. Butler, were partners doing business in Boston under the name of Chandler Adjustable Chair and Desk Company; and that prior to that date the plaintiff and the above named partners had certain dealings.</p> <p>James H. Butler was called as a witness by the plaintiff, and testified that he was the treasurer of the defendant corporation, and had been since February 9, 1894, and that F. A. Chandler was president, and one Hill was general manager and clerk of the corporation. The plaintiff thereupon offered in evidence a certificate of incorporation of the defendant, showing, among other things, the assets of the corporation at the time it was incorporated. The defendant objected to the admission of the certificate, but the judge admitted it; and the defendant excepted. The witness was then asked, “ What were those assets made up of ? ” and answered, “ Patterns, castings, furniture, etc., of the new corporation.” The witness was then further asked whether he could state from the corporation books how all this was made up, and he testified that he could not; that the corporation had nothing to do with the plaintiff, and never did have; that the corporation had been doing no business before February 9, but that the partners were doing business as a company under the same name, and the manufactured assets referred to in the certificate were the goods of the old company, and were sold to the new company; that the plaintiff and other concerns filled the orders of the old partnership; that the witness acted as general agent of the old partnership; that Chandler was designated as president, and looked after the mechanical part of the business; that the witness also acted as secretary and treasurer of the partnership; and that he always signed his name “ J. H. Butler,” and he did not think that he ever used the name “ treasurer,” but might have done so.</p> <p>The witness was thereupon asked what kind of work he did under the corporation. This question was objected to by the defendant, but the judge admitted it; and the defendant excepted. The witness then testified that he was custodian of the money and paid it out; that he gave orders in the letters when they first started, before Hill came in as general manager ; that Hill came in just after the formation of the corporation; that he made bargains for the new corporation; that he knew Chandler went up to Nashua, but did not know that the goods were shipped down to Cambridge, but did know they were shipped to Somerville; that he knew also they were billed to the partnership ; and that they were billed, as all goods had been, to the Chandler Adjustable Chair and Desk Company.</p> <p>The witness was then asked whether the goods that were shipped down to Somerville were part of the assets that were in the certificate of incorporation; to which the defendant objected. The judge admitted the question; and the defendant excepted. The witness testified that he could not swear whether the castings spoken of were included in the certificate of incorporation or not, but that the things sworn to were the assets of the old partnership; that the account shown in the certificate was made up by their attorney ; that the figures were not made up under his direction; that the corporation had a bookkeeper, and he had kept the records of the partnership; and that the figures in the certificate were made up from the accounts which he kept, and he thought that they included the goods of the plaintiff.</p> <p>Upon cross-examination, the witness testified that the castings which were sent down some time in February were the two items which were given in the declaration as of February 26 ; that they represented approximately about $1,500 ; that the castings were never received by the corporation, and were never accepted by the corporation; and that they were now where they were originally left.</p> <p>The witness further testified that he had examined the records of the corporation, and there was no vote authorizing any officers of the corporation to accept those castings; that the plaintiff was notified by the witness that the castings would not be accepted because they were-defective; that the partnership did not continue in existence after the formation of the corporation, except for a certain purpose, merely for settling up the business; and that he bad written to the plaintiff to that effect.</p> <p>On re-direct examination, the witness testified that the partnership was merged in the corporation, but that all the business of the partnership was not absorbed or carried on by the corporation ; that the plaintiff had two accounts; that since February 9 he had written letters and had given orders for the transaction of business; that he had carried on other correspondence in reference to castings with other people, who were making them for the corporation; that although he did not have authority to do so by the corporation, he had taken that authority, and they had ratified everything that he had done ; and that he could not say whether the partnership had made a bill of sale of their goods and assets to the new corporation, but 'that, if it was necessary to have one, they certainly had.</p> <p>Arthur P. Baker was called as a witness by the plaintiff, and testified that he was treasurer of the plaintiff corporation, and resided at Nashua; that the plaintiff had been a manufacturer of iron and brass castings since 1890; that he was acquainted with Butler, who, in April, 1898, came to New Hampshire to see the plaintiff about the manufacture of some iron castings; that he represented himself to be the secretary and treasurer of the Chandler Adjustable Chair and Desk Company ; that, as the result of that conversation, the plaintiff began to manufacture goods for the Chandler Adjustable Chair and Desk Company ; that he met Butler frequently at the Boston office; that he first learned of the existence of the corporation about February 9 or 10, 1894; and. that, at the time of the formation of the corporafcion, .the plaintiff had on hand a number of sets of school furniture castings, and a miscellaneous lot of castings in different stages of manufacture, in bolts, set screws, and springs that went with them.</p> <p>The plaintiff thereupon offered a letter, dated February 14, 1894. The defendant objected to the admission of the letter. The judge admitted the same ; and the defendant excepted.</p> <p>The letter was as follows •:</p> <p>“ Boston, February 14, 1894.</p> <p>“ Mr. A. P. Baker, — I wrote you fully that we wanted all the full sets sent to F. A. Chandler, and a bill of them sent us. The balance we want a separate bill of, and want you to hold them until it suits our convenience to take them. All we want now is the full sets. According to this bill there are 270 odd of 'the l’s and 298 of the 2’s complete. We want them in a salable condition to sell to the city of Somerville. Sort them out and send them as directed, and you will have no trouble settling with us. I don’t see where the idea of trouble with us entered your mind. We don’t want to buy any goods of you only as we want them. I return this bill and you need not return it to me again. Send the whole sets as ordered, and then a separate itemized bill of the balance. We may conclude to even up some of them afterward. Yours,</p> <p>“ Chandler Adjustable Chair and Desk Company,</p> <p>“ J. H. Butler.</p> <p>“ We want a sight of our money, and do not care to owe you until we are wanting the goods. Two thousand of the lid sup.ports will do now. As to the bill of our stock on hand at your factory, will say: This company to-day is a Massachusetts corporation, $25,000 capital full paid and running according to Massachusetts laws. I am authorized to close up the business of the old company. They do not want to accept this stock in the unsalable condition it is in, therefore I return you this bill. Now they want you to ship them the goods in a salable condition, that is, all full sets 1 and 2 complete, to F. A. Chandler, Somerville, Mass., Freight, East Somerville Depot. Billing them, to company. The balance of stock we want a separate bill of, before accepting which they want a settlement in full, and a payment of the money due them, then they will be satisfied. Yours, J. H. B.”</p> <p>The witness further testified that he received the letters and carried on the correspondence for his company; that he shipped the even sets on February 26, and the miscellaneous lot of castings were shipped on March 14, and that bills were sent on February 26, billed to the Chandler Adjustable Chair and Desk Company ; that he was then dealing with the corporation ; that the condition of the goods shipped was good, the same as that of the goods which had been furnished the whole year; that he met Butler both before and after the goods were shipped ; that he had some conversation with Butler about the payment of the goods; that the plaintiff wanted some money, and he came to see Butler specially about that; that Butler told him that the corporation was responsible; and that it was organized with a capital of $25,000, and would settle when the proper time came, but they wanted time to look over the stock and see that the full amount of it was safe in Somerville. This testimony was offered and admitted against the defendant’s objection; and the defendant excepted.</p> <p>On cross-examination, the witness testified that he first commenced to have business with the partnership known as the Chandler Adjustable Chair and Desk Company in the early 'part of April, 1893; that he had personally met all the gentlemen who composed that firm; that the arrangement under which the plaintiff was to do business and actually did do busi- ' ness with the partnership was that the partnership from their Boston office, through their agents, were to solicit orders, place orders with the plaintiff, and then the plaintiff would manufacture the goods, fill the orders, and collect the money ; that the plaintiff received the money for the different orders, and receipted the bills; and that the plaintiff was keeping on hand :a certain amount of stock all the time, to have enough on hand to fill the orders as they came in, according to agreement.</p> <p>J. Frederick Kimball testified that he was foreman of the 'plaintiff; that he saw Chandler at Nashua, who saw certain goods, and said they were all right, and said, “ You can ship them ”; that he was not sure of the date, but it was not a great while before the goods were shipped; and that he could not say whether it was before or after the 10th of February.</p> <p>‘Edward W. Dowd testified that he was superintendent of the plaintiff, and first spoke to Butler about April, 1893 ; that, as a result of the meeting, the plaintiff commenced to manufacture goods, and concluded to keep a thousand sets on hand; that a letter from the Chandler Adjustable Chair and Desk Company was the first information that the plaintiff got of the formation of the corporation ; that he saw Chandler when he came to Nashua to look at the goods; that he did not know that Chandler - stated definitely whom he represented; that he merely said, “ Ship the goods ”; and that he said he had a place where he thought he could put those castings in Somerville.</p> <p>Upon cross-examination, the witness testified that Chandler had been to Nashua a number of times; that he thought that the two orders composing the $1,500 sued upon were manufactured as early as September, 1893; that the plaintiff carried about a thousand sets on hand all the time; that the partnership knew that the plaintiff had this stock on hand; and that Butler told them to keep a thousand sets on hand.</p> <p>Frederick W. Hill was called as a witness by the defendant, and testified that he was general manager and clerk of the corporation, and was clerk at the time the following vote, dated 'February 15, 1894, was passed :</p> <p>“ Voted, To purchase of Mr. F. A. Chandler his devices for a chair back and ink well, for which applications for patents are now pending, for the sum of forty-eight hundred and forty-one and 92/100 dollars, and that in further consideration for said sum said Chandler shall agree to assign to the Chandler Adjustable Chair and Desk Company all future inventions which shall be made by said Chandler for the term of twenty years now ensuing, and that said sum be paid by assuming all the bills due by the partnership of the Chandler Adjustable Chair and Desk Company in which said Chandler is now liable ”; and that the corporation did not accept the goods in any way.</p> <p>At the suggestion of the judge, the by-laws were read as far as they related to the duties of treasurer, and were as follows :</p> <p>“ The treasurer shall perform all' duties usually pursuant to his office. He shall give such bond for the faithful performance of his duties as the directors may require.”</p> <p>There was no vote of the directors ratifying any "acts which Butler had done.</p> <p>Frederic A. Chandler testified that he was president of the defendant corporation; that he went to Nashua on March 8, 1894, after the first lot of goods referred to by the plaintiff had been shipped; that he had not seen the first lot; that they were packed in a barrel where he could not see them ; that he ordered them shipped to his own order at Somerville: and that he did not have any authority from the corporation to have them shipped to the corporation.</p> <p>Upon crossVexamination, he testified that he did swear to the account filed at the State House; that the stock list was a list of the old company’s stock; that all the stock was transferred from the old company to the new corporation; that he had charge of the mechanical part of the business; and that Butler opened all correspondence of the corporation and answered it, and transacted all the business.</p> <p>Butler, upon being recalled, testified that, when he wrote the letter of February 14, he was acting for the partnership in the matter. On cross-examination, he testified as follows:</p> <p>■ “ Q. You were not acting for Mr. Chandler, were you ? A. Yes, sir.</p> <p>“ Q. Now, which do you say you were acting for? A. It was under the name of the partnership.</p> <p>“ Q. Now, I ask you whether you were acting for Mr. Chandler? A. Yes, sir.</p> <p>“ Q. In the first place you say you were acting for the partnership ? A. Yes, sir.</p> <p>“ Q. You were acting for both of them, were you ? A. Yes, sir.</p> <p>“Q. You were acting for Mr. Chandler and you were acting for the partnership ? A. Yes, sir.</p> <p>“ Q. So, when you signed the ‘ Chandler Adjustable Chair and Desk Company,’ you were acting for Mr. Chandler individually? That is whom you were acting for ? A. Yes, sir.”</p> <p>Frederick W. Hill, upon being recalled, testified that he examined the records, and there was no vote authorizing the president of the company to have the goods shipped, or to purchase the goods.</p> <p>Arthur P. Baker was recalled, and identified a letter of September 20, addressed to “ J. H. Butler, Treasurer Chandler Adjustable Chair and Desk Company ”; and testified that he always addressed his letters in that way. ' „</p> <p>Butler was again recalled, and testified that he received the two bills which were sent on February 26 and 27 ; and that he returned the bills to Baker for the plaintiff, and he sent them back to him, stating that he did not want the bills in that form.</p> <p>At the conclusion of the testimony, the defendant asked the judge to rule, as matter of law, that the letter of February 14, 1894, was not written by Butler as treasurer of the corporation, and did not bind the corporation, or enable the plaintiffs to maintain this action. The judge declined so to rule, but left it to the jury to say in what capacity the letter was written; and the defendant excepted.</p> <p>The defendant thereupon requested the following rulings :</p> <p>“ 1. Upon all the evidence in the case the plaintiff cannot maintain this action against the defendant corporation.</p> <p>“ 2. There is no evidence in this case which would warrant the finding by the jury that any officer of the corporation purchased, or was authorized by the corporation to purchase, the merchandise, so that the corporation would be bound by such alleged purchase. . . .</p> <p>“ 4. If the items in dispute were originally sold to Chandler, or the partnership, any promise to pay for the items not in writing, made by any officer of the corporation, would not be binding upon the corporation. . . .</p> <p>“ 8. This is not an action declaring upon any promise of the defendant corporation pursuant to any vote, of the corporation, and the vote of February 15, 1894, of the corporation is not competent evidence for the purpose of imposing any liability upon the defendant to the plaintiff in this action. . . .</p> <p>“ 10. The plaintiff in this action must prove a delivery of the merchandise in question as essential to the completion of a sale. And as the two items of February 26,1894, ($1,518.86,) were delivered after the passage of the vote of February 15, 1894, there is no evidence that the same were delivered by authority of the defendant corporation, and the defendant cannot be held liable therefor in this action.</p> <p>“ 11. The vote of February 15, 1894, is not sufficient to render the defendant liable to the plaintiff for any claim which might become due from F. A. Chandler, or the partnership, to the plaintiff corporation after the date of passing the vote.”</p> <p>The judge declined to give such rulings, and instructed the jury, among other things, as follows:</p> <p>“ The simple question which you are to decide upon the evidence in this case is whether or- not goods which the plaintiff says were shipped on the 26th of February and the 14th of March of the present year were, in fact, sold to the defendant corporation. That is all there is -in the case. There is no dispute that prior to. the shipment of those goods the plaintiff, a corporation doing business in Mew Hampshire, had, at different times, business dealings with a partnership carrying on business in Massachusetts, and that the members of that partnership adopted as a firm name, under which they had been doing business, the name of the Chandler Adjustable Chair and Desk Company. . . . Those goods were not the property of the partnership, which the partnership would have had the right to take, unless the Mew Hampshire corporation had seen fit to allow them to take them. The Mew Hampshire corporation had the goods ; they had never been delivered; there had been no attempt at delivery; there had been no acceptance. . . .</p> <p>“ Mow, what happened when the corporation was organized ? Your attention has been called, in the first place, to the certificate of payment of its capital stock and its investment in property hs required by the laws of Massachusetts; and you find a statement that there were transferred to the corporation castings, woodwork, and manufactured furniture to the amount of $2,944.20, . . . And the contention of the plaintiff is that the identical goods which the plaintiff says it sold to the corporation make up a part of the goods described in the first item under the head of castings, woodwork, and manufactured furniture, said to be of the value of $2,944.20. Mow you will say, upon all the evidence in the case, bearing in mind especially the testimony of Mr. Butler, who is described as' the treasurer of the partnership, and who was confessedly the treasurer of the new corporation, whether it is-true that these goods are comprised within the description contained in this certificate of castings, woodwork, and manufactured furniture.</p> <p>“ Then, further, the records of the corporation are put in evidence, and there is the record of the vote of the directors, passed on the fifteenth day of February of this year, in which, for a consideration recited, the corporation promised to assume and pay the liabilities of the partnership of which Mr. Chandler had been a member.</p> <p>“ Under that vote, as between the corporation and Mr. Chandler, the corporation was bound to assume and discharge any liability existing on the part of the old partnership to the New Hampshire corporation. . . .</p> <p>“ I have told you the nature of that liability; it was in one sense a contingent liability, because, if the New Hampshire corporation did not see fit to offer or to deliver the goods, there would be no claim which could be enforced against the partnership. But if the corporation did see fit to insist upon the partnership taking those goods off the hands of the corporation, there was a liability, and that liability, for a good consideration, the corporation assumed; and as between the Massachusetts corporation — the defendant corporation — and Chandler, it was the duty of the corporation to pay what was necessary to discharge that liability.</p> <p>“ You might suppose, because of the two things to which I have called your attention, — first, this vote of the corporation undertaking to pay the debts of the partnership, and, secondly, the language used in this certificate, and which you may find shows that as a part of the capital of the corporation these goods on hand in Nashua were included, — you might as business men assume in view of those facts that nothing more was needed to enable the plaintiff to maintain this action. You might say, ‘ Why did not the defendant corporation pay ? It agreed to pay.’ And the defendant corporation, you may say, received the identical goods according to its certificate of incorporation by reason of the action taken by these parties who united in forming a corporation, and saying that the capital had been invested in that way. . . . You may be satisfied that there is no sort of doubt that the Massachusetts corporation stepped into the shoes of the old partnership in every particular, taking not only the name under which the old partnership carried on the business, but taking everything that the old partnership had, — its merchandise on hand, its bills receivable, its patents, and every dollar’s worth of property of every sort and description that the old partnership had, under an agreement to pay all the indebtedness of the old partnership, and yet the plaintiff could not maintain this action. , . . And the reason is, if I may state it so that you will understand it, that in the case I have supposed, with only the two facts which I have called to your attention, there is no contract between the Massachusetts corporation and the New Hampshire corporation. . . .</p> <p>“ Now you will proceed to inquire whether after the formation of. the Massachusetts corporation that corporation bought and received these goods. If it did buy them and received them, it must pay for them; and the only importance of these other matters to which I have called your attention is, mainly, as bearing upon the question of the authority of the officers of the Massachusetts corporation, and as tending to throw light upon the acts of the officers of the new corporation which otherwise might be doubtful in meaning. . . .</p> <p>“ If you are satisfied that Mr. Butler had authority to bind the corporation, and that in writing that letter he referred to the corporation, and the plaintiff reasonably understood it as referring to the corporation, then there is no defence as to that shipment of goods, — the complete sets, — unless you find that the goods were defective, and not such as the plaintiff was required to furnish. . . . Something has been said as to there never being any acceptance of the goods by the partnership or by the corporation. If the goods were shipped pursuant to an order given by somebody who had authority to bind the corporation, and came here, and were taken into the custody of the corporation, that is a sufficient acceptance to enable the plaintiff to maintain this action. In other words, it shows all that is necessary to constitute' a sale and delivery. . . . The letter of the 14th was not written, you will bear in mind, after that vote was passed by which the corporation assumed the indebtedness of the partnership; and so that fact of itself would not constitute authority to the treasurer to bind the partnership. But the goods were not received until a later time, and I cannot exclude the vote wholly from your consideration as bearing upon the authority of the treasurer. But you may consider that vote as bearing upon the authority of Mr. Chandler, the president of the corporation, who went to Nashua and examined these goods, knowing, as he must have known, what the corporation had promised to do, and knowing, as he must have known, if you find it is a fact, that these goods constituted a part of the assets of the corporation because turned over by the partnership to the corporation, in determining whether, he would have, by reason of those two things, authority to direct the shipment of the goods to Massachusetts upon the credit of the corporation, and the corporation would be bound to pay for them.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Two ACTIONS OF CONTBACT. The cases were referred, by agreement of the parties, to referees, who heard them together, and made one award covering both cases, the rule of reference in each case being attached to the award. The cases were then ordered to be recommitted to the referees, with directions to make a separate award in each case. The referees thereupon made a new award in the second case, leaving their first award unchanged. A second order of recommittal was then entered, directing the referees to make a separate award in each case, in conformity with the previous order. Whereupon the referees made a new and separate award in favor of Shaw in each case, that in the first case beginning, “ Pursuant to our appointment as referees under the foregoing rule,” and containing the statement that “said account hereto annexed is the same account set forth in our report recommitted to us”; and that in the second case beginning, “ Pursuant to our appointment as referees under the rule annexed to our report in ” the first case. Preceding the award in the second case, in the printed record, was the rule of reference marked “ Copy,” but not attested. Wise objected to the acceptance of the award in each case, the grounds of objection in the first case being as follows:</p> <p>“ 1. The award is not sufficient in form.</p> <p>“ 2. The award purports to be made pursuant to a rule annexed to said award, when in fact, as appears by the record, there are two rules annexed thereto. It does not appear under which rule the award is made.”</p> <p>The grounds of objection in the second case were as follows:</p> <p>“ 1. The award is not sufficient in form.</p> <p>“ 2. No authority of the referees to act is shown thereby.</p> <p>“3. No submission or rule to referees is attached thereto.</p> <p>“ 4. The award purports to be made under and pursuant to a rule of court not on file in this case, and therefore not of record herein as a part of said award.”</p> <p>In the Superior Court, the objections were overruled, the awards were accepted and confirmed, and judgment entered thereon; and Wise appealed to this court.</p>

Bill in equity, filed in the Superior Court on April 17,1891, and amended February 16,1893, alleging the following facts. The plaintiff and the defendant have for many years been associated together in the business of manufacturing steam regulators at Salem as equal partners, under the style of Locke Brothers ; the partnership has been dissolved by the mutual consent of the parties.

<p>Equity — Multifariousness — Judgment.</p> <p>A bill in equity is multifarious which joins different causes of action that cannot properly be tried together.</p> <p>The validity of a judgment in a former suit cannot be determined collaterally in a subsequent suit between different parties.</p>

Bill lb equity, filed March 5,1895, by the plaintiff, as public administrator of the estate of George P. Hardy, late of Troy, Vermont, against Ezra T. Seaver, of Troy, administrator of the estate of Hardy in Vermont, and Harold Weston,-of Waltham in this Commonwealth, to restrain Seaver from collecting a judgment obtained by him against Weston in this Commonwealth, and to order Weston to pay the amount thereof to the plaintiff.

Petition to the Superior Court, filed January 18, 1896, by the holders of certificates issued by the respondent corporation, an endowment order organized under St. 1888, c. 429, of which a receiver had been appointed, for an order for payment of the same. The petition was denied; and the petitioners appealed to this court. The facts sufficiently appear in the opinion.

<p>Writ of Entry — Evidence — Ancient Plan and Field Notes — Trial — Adverse Possession.</p> <p>Upon the preliminary question whether an ancient plan, offered in evidence, was made in actual transactions, two deeds executed in the two following years, referring to the survey and giving boundaries, reciting that a certain road then building, shown on the plan, ran over the land, and giving an area which corresponded with that on the plan, are admissible in evidence at the trial of a writ of entry to recover a parcel of land lying on one side of the road mentioned.</p> <p>If a deed, which is itself not ancient, but which refers to an ancient plan, is admitted in evidence at the trial of a writ of entry, and bounds the land described on one side of a marsh, of which the demanded premises are alleged to be a part, and the demandant offers to withdraw the deed at the close of the evidence, but the tenant objects to its withdrawal, the latter is not harmed by its remaining in the case, there being abundant evidence without it.</p> <p>Upon the issue of the admissibility in evidence, at the trial of a writ of entry, of an ancient plan and field notes, a question to a surveyor, in whose custody they were, as to the contents of the field notes, and whether they related to a certain marsh, of which the demanded premises _ are alleged to be a part, is a proper preliminary question.</p> <p>It is competent, for the purpose of showing at the trial of a writ of entry the accuracy of an ancient plan offered in evidence, to show its use by other surveyors ' in making their own surveys, and they are entitled to give their opinion upon it as a whole, whether they have resurveyed the parcels in dispute or not.</p> <p>At the trial of a writ of entry, an ancient plan and field notes, offered in evidence, were produced by,a surveyor, who testified that he had had them in his possession since the death of one G., formerly a lawyer; and another surveyor testified that he had seen the plan in the possession of G. twenty years before the trial. Held, that the tenant was not entitled to contend that the plan and field notes were not produced from any proper custody.</p> <p>Upon the preliminary question of the genuineness and accuracy of a plan, not dated or signed but alleged to have been made in 1818 by W., a surveyor, and offered in evidence at the trial of a writ of entry, other plans dated in 1820 and 1828, and signed by W., were admitted in evidence. They represented certain lots in the vicinity of a marsh, of which the demanded premises were alleged to be a part, and were shown on the first named plan; they were drawn on the same scale, and were identical with the same lots shown on that plan; and they came from the custody of one C., who, in 1853, sold the lots to one I). Held, that they were properly admitted. Held, also, that a plan made by W. in 1818, produced from the papers of tue estate of one b\, was admissible for the same purpose.</p> <p>A plan of nearly one hundred acres of land, drawn to a scale, not dated'or bearing the name of any surveyor, but shown to have been made by a surveyor of acknowledged skill and accuracy, long since deceased, and appearing to be well known to surveyors and to have been used and tested by them in their own surveys, and accompanied by field notes showing that the survey was made in 1818, is, together with the field notes, admissible in evidence at the trial of a writ of entry to recover land included in that shown on the plan, the preliminary evidence having authorized the finding that the plan and the field notes were not only ancient, but also genuine and accurate, and prepared for and used in actual transactions.</p> <p>At the trial of a writ of entry, evidence that the taxes on the demanded premises had been assessed to and paid by the tenant or his predecessor in title for more than twenty years, if there is no evidence of actual occupation or possession by the tenant, is properly excluded.</p>

<p>Railroad — Easement — Extinguishment — Filing of Location.</p> <p>If land of a railroad corporation is subject to an easement in favor oí adjoining land, the parties can lawfully adjust the rights and obligations of the two estates by extinguishing all other rights and claims, and establishing one permanent crossing in place of them, and such crossing is not necessarily extinguished by the filing of a location which contains no mention of it.</p> <p>If the location of a railroad corporation, as it existed at a certain date, was subject to a right of way at a crossing, such right cannot be extinguished by a new location, as it existed at that date, filed only in pursuance of a permission given by the statute which confirmed the location.</p>

<p>Equity Practice — Objections to Master’s Report — Lateness of Defence — Abatement of Suit by Death — Former Judgment as Bar — Promissory Note — Composition Settlement — Principal and Agent — Restoration of Status quo ■ — Evidence.</p> <p>If a draft Of the report of a master to whom a suit in equity has been referred is furnished to the defendant’s counsel, and, after more than five days, a hearing is had and amendments are made at their suggestion, and no objections are filed or offered for filing at any time, and the point that the master did not allow the defendant an opportunity to file objections is not taken until the hearing before a single justice of this court, several months after the filing of the report, of which the defendant.had notice, he will be deemed to have waived any objections to the report.</p> <p>The objection of multifariousness, if not set up in the answers to a bill in equity by the indorsee against the holder and the maker of a promissory note, to compel the holder to deliver up the note and to obtain a decree against the maker for payment of the balance due on it, and not taken until the hearing before a master to whom the suit was referred, several years after the filing of the bill and after an action at law on the note had been decided in the defendant’s favor, and when the statute of limitations would have been a bar to a new action on the note, comes too late.</p> <p>A suit in equity, to compel the delivery by A. of a promissory note made by a firm of which B. was a member, and to obtain a decree against the makers for payment of the balance due on it, is not abated by the death of B.</p> <p>The judgment in an action at law upon a promissory note, by the indorsee against the maker, not rendered upon the merits, but upon the ground that the plaintiff did not have possession of the note and his right to it as against the holder could not be tried in that action, is not a bar to a suit in equity by the indorsee against the holder and the maker, to compel the holder to deliver up the note and to obtain a decree against the maker for payment of the balance due on it; and the pendency of that action does not operate to abate the suit in equity.</p> <p>A firm which had failed attempted to effect a compromise with its creditors, and an agreement, by the terms of which the creditors were to accept thirty-five per cent in full satisfaction of their claims, to be paid by notes satisfactorily indorsed, and all creditors were to become parties thereto, was signed by many, but not all, of the creditors, including A. Thereupon the firm executed an agreement with B., a creditor, who by its terms was to settle the liabilities of the firm and its members “under a composition with their creditors,” by selling the partnership property and reimbursing himself from the proceeds for all payments made by him for which he should become liable "under the terms of the composition.” B. took an assignment of all the claims against the firm, for some of which he paid more than thirty-five per cent, indorsed and delivered to some of the creditors, including A., the same notes which had been prepared to be indorsed under the composition agreement, managed and disposed of the property, reimbursed himself, transferred the balance in accordance with the agreement, and delivered up to the firm all the claims which had been assigned to him, except the promissory note which constituted A/s claim. The assignment executed by the creditors recited that they, “ in consideration of thirty-five cents on the dollar of tlie said indebtedness of said firm to us respectively paid by ” B., “ hereby sell and assign to " B. all claims against the firm. Held, on a bill in equity by A. against B. and the members of the firm, to compel B. to deliver up the note and to obtain a decree against the firm for payment of the balancé due on it, that the facts warranted a finding that the transaction by which A. surrendered his note was not a sale by him to B., but was a part of a composition settlement; and that the agreement between B. and the firm was competent evidence against B.</p> <p>A firm which had failed attempted to effect a composition with its creditors: and 0., who had been in its employ, obtained signatures to a paper circulated for that purpose. Afterwards the proposed composition was abandoned, and an agreement was made between the firm and B., one of its creditors, by which he took an assignment of all claims against the firm, indorsed and delivered notes of the firm in payment, and settled the affairs of the firm, reimbursing himself; and G. presented the instrument of assignment to A., a creditor, who signed it and gave the note which constituted his claim to C., who delivered it to B., and afterwards gave A. the notes signed by the firm and indorsed by B. under the agreement. C. also answered certain questions, in relation to the proposed composition, asked by A., who did not know of its abandonment, before he signed the instrument. Held, on a bill in equity by A. against B. and the firm to obtain delivery of the surrendered note and payment of the balance due oh it, that the facts warranted a -finding that C. was the agent of B. and of the firm; and that it was competent for A. to testify to his understanding of the paper which he signed for the purpose of rebutting any inference which might be drawn from his unexplained signature.</p> <p>A firm which had failed attempted to effect a composition with its creditors, and A., among other creditors, signed a paper circulated for that purpose. After-wards the proposed composition was abandoned without A.’s knowledge, and an agreement was made between the firm and B., one of its creditors, by which he took an assignment of all claims against the firm, indorsed and delivered in payment notes of the firm upon the basis of a compromise, and settled the affairs of the firm, reimbursing himself. A., induced by the misrepresentations of the agent of B. and of the firm, signed the instrument of assignment and surrendered the note which constituted his claim to B., who gave him the notes signed by the firm and indorsed by B. under the agreement. A., upon learning the misrepresentation, brought a bill in equity against B. and the firm to obtain delivery of the note and payment of the balance due on it. When the bill was filed there was a large sum due B. under the agreement between him and the firm, which was afterwards paid. Held, that A. was entitled to a decree, without returning or offering to return the notes received from B.</p>

<p>Petition for an assessment of damages occasioned to the petitioner’s property in Chelsea by the construction and operation of a sewer by the Metropolitan Sewerage Commissioners, under Sts. 1889, c. 439, and 1890, c. 270. The alleged damages were occasioned by the drying of a well, from December 19, 1892, to July 25, 1893, during which time pumps were used by the contractors in charge of the construction of the sewer in Marginal Street upon which the petitioner’s premises abutted, in order to keep the sewer trench free from water during construction ; and by the pollution of the water of the well, upon the ground that when the water returned, after July 25, 1893, when the pumping finally ceased, there was a change in the quality of the water, which rendered it less desirable for use in boilers and for other purposes connected with the, business of a foundry, which the petitioner carried on upon the property. No portion of the petitioner’s land was taken.</p> <p>At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the petitioner; and the respondent alleged exceptions.</p>

<p>Equity — Specific Performance of Agreement under Seal — Mutuality of Contract— Fraud — Responsibility of Contracting Party for his Acts.</p> <p>It is no defence to a bill in equity to enforce specific performance of a contract, that at the time of his offer the defendant was mentally and physically depressed, if he was responsible for his acts, understood the contents of the offer, and no fraud was practised upon him, and that the price was inadequate, if the inadequacy was not gross.</p> <p>This court enforces specifically contracts assented to by both parties, and further acted upon by the plaintiff in the bill to enforce, even when he has given only a verbal assent, and but for the offer in his bill could not be held to perform on his own part; but whether it will specifically enforce a contract upon which the plaintiff has not acted except to give a mere assent, which would not enable the defendant to enforce the contract against him, qucere.</p> <p>Because the written offer of A. to sell houses to B. within a certain period is under seal, it is an irrevocable covenant conditional upon acceptance within the time named, and the written acceptance within that time makes it a mutual contract, which B. can enforce in equity.</p>

<p>Five actions oe contract, upon policies of insurance issued by the defendants respectively against loss by fire on the plaintiff’s property in Lisbon, New Hampshire. The cases were referred to an auditor, who found that the policies, which were . procured by the plaintiff through one Hill, a broker, who was secretary of the Prudential Fire Insurance Company of Boston, had been legally cancelled before the loss occurred. The actions were tried together in the Superior Court, before Hopkins, J., who, at the request of the defendants, ruled that the actions could not be maintained, and directed the jury to return verdicts for the defendants; and, at the plaintiff’s request, reported the cases for the determination of this court. If there was any evidence upon which a jury might have found for the plaintiff in any or all of the actions, a new trial was to be ordered in such actions; otherwise, judgment was to be entered on the verdicts. The facts material to the points decided appear in the opinion.</p>

<p>Personal Injuries — Master and Servant — Pleading — Verdict.</p> <p>The averments in one of two counts in a declaration upon which an action for personal injuries occasioned to the plaintiff, while in the defendant's employ, by the falling of a derrick upon him, goes to the jury, that the defendant knew the derrick to be unsafe and deceitfully ordered the plaintiff to work near it, are material, and, if unsupported by proof, the judge having refused to direct a verdict for the defendant on.that count, a general verdict for the plaintiff will be set aside.</p>

Tort, for personal injuries occasioned to the plaintiff’s intestate, Cornelius J. Doyle, by the alleged negligence of the defendant. Trial in the Superior Court, without a jury, before Dunbar, J., who allowed a bill of exceptions, in substance as follows. Cornelius J. Doyle had been for about a year and a half employed as a clerk in the freight department of the defendant at Boston.

<p>Petition for a writ of certiorari, to quash an assessment for the entire expense of the construction of a sidewalk in the city of Springfield, under § 15 of the city charter, St. 1852, c. 94. Hearing before Lathrop, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Cambridge Park Act— Constitutional Law.</p> <p>The St. 1892, c. 341, authorizing the city of Cambridge to lay out and maintain public parks, and providing that the damages sustained by the taking of any lands for that purpose shall be assessed with interest at the rate of four per cent from the date of the actual entry and taking of possession by the city, is constitutional.</p>

<p>Agency — Embezzlement by Treasurer of Investment Company.</p> <p>If the jury are warranted in finding that a note and mortgage guaranteed by a company organized to negotiate loans secured by mortgages were received by it from the owner thereof, with the knowledge of its treasurer, under a special agency to collect them and to pay over the proceeds to the owner, and that the treasurer, instead of paying over the money to the owner, deposited the check received therefor to the credit of the company, with the intent thereby to appropriate it to the company’s uses, he may be convicted of embezzlement.</p>

<p>Wb.it of entry, dated November 14, 1894, to recover possession of a parcel of land in Haverhill. Plea, nul disseisin, with a specification of defence, disclaiming as to a portion of :the demanded premises. A plan of the premises is printed on the opposite page. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The demandant claimed title from Andrew W. Hammond, her deceased husband, under the following instruments:</p> <p>1. A quitclaim deed in common form from Andrew W. Hammond to C. Howard Poor, dated September 12, 1877, in which the description was as follows; “ The brick house now occupied by me on the westerly side of How Street, in said Haverhill, being house No. 12 on said street; together with all the appurtenances thereto belonging, and the furniture and household goods now being therein; together with land under and adjoining said house as now used with it ”; and which purported to convey the premises to Poor upon a trust expressed as follows:</p> <p> </p> <p>“ To convey the same to my wife, Mary L. Hammond, for her use from my decease so long as she remains my widow.”</p> <p>2. A quitclaim deed in common form from C. Howard Poor to the demandant, dated September 12,1877, in which the description was as follows: “ The brick house and now occupied by said Andrew W. Hammond and family on the westerly side of Emerson Street, in said Haverhill, being house No. 12 on said street; together with all the appurtenances thereto belonging, and the furniture and household goods now being therein ; together with land under and adjoining said house as now used with it” ; and which purported to convey the premises to the demandant to hold from and after the' decease of her husband, so long as she remained his widow.</p> <p>8. A lease from Andrew W. Hammond to Benjamin F. Brickett, dated July 29, 1878, of “that brick house with land under and adjoining the same as used with it, situate on the west side of How Street in said Haverhill, and being numbered No. 10 How Street; to hold for the term of the natural life of my wife Mary L. Hammond, from the cjay of date hereof, yielding and paying therefor the rent of one dollar per year ”; and containing the usual covenants. On the back of the lease the following indorsement, dated July 29, 1878, and signed by Brickett, was made : “ Know all men by these presents, that I, Benjamin F. Brickett, lessee within named, in consideration of one dollar to me paid by Mary L. Hammond, the receipt of which is hereby acknowledged, do hereby assign, transfer, and set over unto said Mary L. Hammond the within written lease, the estate therein conveyed, and all my interest therein, subject to all the covenants therein contained.”</p> <p>4. A deed from C. Howard Poor to the demandant, dated August 2, 1894, in which the description was as follows: “All the real estate which was conveyed to me on said 12th day of Sept., 1877, by said Andrew W. Hammond by his deed duly recorded as aforesaid ” ; and in which deed Poor referred to the deed from Andrew W. Hammond to himself first mentioned, and to his own deed to the demandant, and recited that in his deed to the demandant the premises were by mistake described as No. 12 Emerson Street, instead of No. 12 How Street, and that the present convey anee1 was made for the purpose of correcting such error, and effectually executing the trust declared by that deed.</p> <p>Edward H. Hoyt, called as a witness by the demandant, testified, among other things, as follows: “ Am a grandson of Andrew W. Hammond. Have been familiar with the premises in question nearly all my life. Have seen the plan exhibited, and understand it. Andrew W. Hammond lived in the house No. 10 How Street. He kept a horse and carriage in the stable right behind the house, in the building marked ‘ Stable ’ on the plan. The three buildings marked ‘ Woodhouse,’ ‘ Privy,’ and ‘ Stable ’ were all connected at the time of his death the same as now. The building marked ‘ Woodhouse ’ I think he used to put his carriages in. From the time when the Hammond Block was built until the death of Mr. Hammond, in 1879, he used that for a toolhouse, and had a bench in there; don’t think any of those buildings or premises were rented after the block was built. He used the passageway in the rear of the block, and that between the outbuildings and the house, to drive into his stable.”</p> <p>On cross-examination, the witness testified as follows : “ Don’t think he was accustomed during the last years of his life to keep materials for repairing his various buildings in these back buildings. He used that shop as a general workshop; other people did n’t use it. While my grandfather was living, to the best of my knowledge, I will say that the buildings were not let. He used them himself. He kept his horse in the stable, and he used the woodhouse and privy, and he used the toolhouse, and he had a bench. The stores in the Hammond Block are owned by different persons. All the stores have doorways opening on that passageway unless they have been stopped up. The open land between the buildings has been kept open always as a means of access to all these buildings.”</p> <p>Edward H. Livingston testified for the demandant as follows: “ Have been familiar with the premises in question since 1872. Understand the plan. Mr. Hammond lived in the brick house north of the passageway with his family all the time I was acquainted with him. He died January 30 or 31,1879. He owned a horse and carriage all the time I knew him, and there was one kept there by him at the time of his death. He occupied the stable up to 1876, and up to 1875 or 1876 he occupied the privy, that came next. Then this was his woodhouse, and his carriage run right in. The other building used to stand on the corner of How and Merrimack Streets. It was where • it now is when I hired the west store in the Hammond Block of him. From the time I hired the store of him in 1872, and especially in 1877, 1878, and 1879, the building which stood directly behind my store was used by Mr. Hammond for a storehouse, to store old lumber or any such thing as that. Nobody occupied it but him. Don’t recollect of his having any workshop in there. He occupied the driveway here back from the street. The space between the wooden house and No. 10 was used as his clothes yard. The building marked ‘ Privy ’ he tore everything out, and had it one building the same as the woodhouse. I now recollect the number of the house where he lived as No. 10. No. 12 was a two-tenement house.”</p> <p>On cross-examination, the witness testified as follows: “Mine was the store next to the hotel on the west end. The driveway and the building stood right back of my store. Had to use the driveway to get my coal in. There was a front door in the wooden building marked ‘ Toolhouse ’ facing my store. Did n’t have a key to it unless I got one from Mr. Hammond. No one in my employ did. Kept no goods in that building which were usable. The wooden house No. 8 How Street was generally called a boarding-house, occupied by tenants. It had an entrance next Hammond Block, at the east end near How Street. To get into it they used the passageway in the rear of the block. Think the occupants of the boarding-house hung their clothes on lines stretched from No. 8 to the building marked ‘ Tool-house.’ Where the privy stood was all placed into one building. That place was used as a stable and carriage-house, harness-house, and for other little things that he might put in there. I know Mr. Hammond kept one carriage, and he had an old wagon. The buggy carriage he kept for his private use; kept it right south of space' marked ‘ Privy.’ There was a door there opened both ways.”</p> <p>The demandant testified, among other things, as follows: “Was married to Mr. Hammond, May 5, 1875. He resided at No. 10 How Street. It is a brick house, has only one front entrance. Resided there from my marriage until the time of Mr. Hammond’s death, January, 1879. During that time be kept a horse and carriage in the building marked ‘ Stable.’ The carriage was generally run into the next building. He kept his horse there also. This driveway there, this yard, also this passageway in connection with those stables, were used by Mr. Hammond exclusively with No. 10. He kept wood in the building marked ‘ Woodhouse,’ as well as his carriage and wagon. The building marked ‘ Privy ’ as a separate building was taken in with the rest, and at the time of his death was all used as one building. The building marked 1 Toolhouse ’ was used for storing any part of the furniture that we used to dispose of from the house. No other person occupied or used any of those buildings. They were never rented. The area where lines are strung between No. 8 and No. 10 was used with the house No. 10 for drying clothes, and the passageway wholly,as a private passageway. That other passageway was used for wagons, and to convey things to the house, anything that he wished to convey to those buildings and the stables. Didn’t rent the stable or any of those buildings after my husband’s death; they remained vacant. I went to live in Boston soon after my husband’s death, and have remained there ever since. Various parties have occupied house No. 10. I rented it through an agent to persons who have occupied it and paid rent to me. Have been in Haverhill quite frequently since my husband’s death. Know that the stables have been occupied; not through my leave or license, because it was taken right out of my hands.”</p> <p>On cross-examination, the witness testified as follows : “ Have been somewhat familiar with the premises shown on the plan since I first went to Haverhill. My recollection is that those (rear) buildings, except that corner building (marked ‘ Tool-house ’) were there on that same land. That building marked ‘ Woodhouse’ and ‘ Privy ’ was used with the house when I first recollect it, with the homestead and the stables. From the first that I kept house there, we used that (space between No. 8 and No. 10) for a clothes yard. There were posts and lines there. At the time I lived at No. 10, No. 8 was used as a boardinghouse ; the occupants hung their clothes in space north of No. 8, by permission of Mr. Hammond only; it never went with house at all. Mr. Hammond never to my knowledge occupied any other house than No. 10. We were living there at his decease. Knew that Nathan Longfellow was special administrator of my husband’s estate. Understood that he was taking charge of the property that belonged to the estate. All except the portion I pointed out (on the plan) that I claim there. If he took charge of it, it was without my consent. I believe it was Mr. Abbott who succeeded to the care of the Hammond property after Mr. Longfellow gave it up. He took charge of the Hammond Block and No. 12 with the land; No. 8 he took charge of. I took charge of this portion myself, and this house (10). I was n’t allowed to take charge of the buildings in the rear. They were taken from me by Mr. Abbott. I never called on him with reference to the property. Never made any demand on him personally for any portion of the property, or through other parties, until I sent my' counsel in this case, about a year and a half ago, or a year. I knew that those rear buildings were being occupied for various purposes while Mr. Longfellow had charge of them; that people were keeping horses in them, and such things, but they were there by no right. I did n’t make any complaint to Mr. Longfellow on account of it. Was n’t well enough to assert my rights, or take any action of the kind, but I knew the time was coming when I should. I first heard of the conveyance of the property to Mr. Abbott about three or four years ago. I knew that he had let those rear buildings, and was collecting rent from my property. Don’t know anything about his making repairs. I was n’t making any repairs. Did n’t communicate with him when I first heard he had bought the property, because I had n’t engaged counsel. Thought it was necessary to have counsel • before telling Mr. Abbott that I claimed it. Knew, when he ordered my rent not to be paid to me, that it was useless to communicate with him. I did not really think he had bought the property. I began to pay taxes in Haverhill after my husband’s death in 1879. Supposed I paid the Emerson Street property, and also this property ; paid my taxes year after year. Supposed I was paying taxes on the whole of this property. Did n’t know what my tax bills covered. Knew I was getting no income from it, and that somebody else was getting income from it. Mr. Jenness, who was present when the deeds and lease were made, was a lawyer in Haverhill. After Mr. Hammond’s death I engaged him to rent my house No. 10 How Street. Didn’t employ him for any other purpose. Did n’t give him any instructions as to the outbuildings and other places which are in controversy in this suit; simply to rent the house. I did n’t wish the stable and other buildings rented then; I wanted them to remain as they were. I supposed I had a right to have my property remain as I liked when I went to Boston. I allowed Mr. Andrew F. Hammond to keep his horse in the stable before he died. I wished it to remain as it was when Mr. Hammond died. Should think it was about a year or two before I tried to rent it; then I employed Mr. Hoyt to rent it for me. Then Mr. Abbott notified the tenants to pay the rent to him, and not to Mr. Hoyt, and that is how it slipped from me. My mind never changed at all.”</p> <p>Frank Morrill testified for the demandant as follows: “ Am familiar with the premises in question. Mr. Hammond kept a horse and carriage there in the building marked 1 Stable’; in the building marked ‘ Woodhouse ’ there was a bench and tools, also a kind of old wagon. He also kept wood in there. The building marked ‘ Privy ’ is not a separate building, it was all one building during the years 1877,1878, and 1879. During that time the building marked 6 Toolhouse,’ etc., was n’t much used for anything; was n’t rentable, so Mr. Hammond used it to keep planks and boards in there. He used to go in there and work sometimes. Nobody used the building but Mr. Hammond, to my knowledge, except once or twice I think I borrowed the key and put in a broken table. There was a clothes line across from that building to the house No. 8, with a pulley arrangement; at one time Mrs. Hammond’s clothes were hung to dry in the space between the house No. 8 and the house No. 10. There was a pair of stairs on the outside of the building marked ‘ Wood-house,’ next to the one marked ‘ Toolhouse,’ etc., and Mr. Hammond used to keep some paint boxes in the upper part.”</p> <p>On cross-examination, the witness further testified as follows: “ Have seen Mr. Hammond working in both of those buildings, one marked 6 Toolhouse,’ etc., and one marked ‘ Woodhouse.’ The bench was in the one marked 6 Woodhouse.’ Don’t think the buildings were fitted up as workshops; they were n’t worth fitting up. The building marked 6 Toolhouse,’ etc. was never used in connection with the Livingston store while I worked there.”</p> <p>Edward A. Hammond testified for the demandant as follows : “ Andrew W. Hammond was my father. He resided in Haverhill, in the house known as No. 10 How Street, sometimes as No. 12. He occupied the house No. 10 on the plan, and the driveways, garden, and well appurtenant thereto, for more than forty years as a homestead. The stable, privy, storehouse, tool-house, workshop, and woodhouse were used by him for a great many years in connection with the same. I was familiar with the use made by him of the premises No. 10 How Street, and land under and adjoining the same, as shown on the plan, during the years 1877, 1878, and prior thereto. All the land included in the irregular line drawn by me on the plan was used in connection with the house, including the land now covered by the outbuildings referred to at the time of my father’s death, and for more than forty .years prior thereto. My father used in connection with the house all the land around which I have drawn an irregular line, together with the workshop, stable, storehouse, toolhouse, woodhouse, privy, well, private way from How Street adjoining the north of the Hammond Block, as indicated in the plan, and running up to each of the outbuildings I have mentioned, and to his residence as I have indicated on the plan. There was a driveway or passageway used with the house. It was located just north of and adjoining the Hammond Block, as indicated on the plan, corner of Merrimack and How Streets; the entrance was from How Street and on the southern end of the premises, and running up to the stables and the rear of his residence.”</p> <p>On cross-examination, the witness further testified as follows: “ My father generally kept a horse. He might have been without one for a short time, but he always had stables connected with his house. The buildings shown on' the plan referred to were in about the same positions as shown there at my father’s death and for a great many years before. The house in which my father lived had no number on the door for more than twenty-five years; it was sometimes called No. 10, sometimes No. 12, and I think also sometimes No. 8.”</p> <p>James P. Dearborn testified for the tenant as follows: “ I first became acquainted with the property in question in 1861. When.Mr. Hammond built the block in 1871 or 1872 he moved the building marked ‘ Woodhouse ’ and ‘ Privy ’ north about fifteen or twenty feet, I should say, to make room for the building I was occupying to be set in there [building marked 6 Toolhouse,’ etc.]. Those buildings after he moved them back were not used for much of anything. Sometimes the doors were open, and sometimes they were shut. Have seen people from Livingston’s store go in and out of those buildings. Have never seen them carrying anything between the buildings. Mr. Hammond used to keep a horse and wagon in the building marked ‘ Stable.’ ”</p> <p>On cross-examination, the witness further testified as follows: “ After the Hammond Block was built, I couldn’t say these old buildings in the rear were let: generally the only occupant was Mr. Hammond.”</p> <p>Mrs. U. D. Mitchell testified for the tenant as follows: “I hired house No. 8 on plan of Andrew W. Hammond from November, 1877, to May, 1878. Mr. Hammond had clothes posts put up for me north of house, substantially as they are now, and I put out lines, and hung my clothes there to dry. Nobody else used it. There was a back door with a flight of stairs outside leading up to it, and a basement door under it. To reach the back door and basement door we passed through passageway south of the house next to the block.”</p> <p>Orlando Brown testified for the tenant as follows: “ Knew Andrew W. Hammond and was acquainted with the premises in question. The buildings marked ‘ Woodhouse ’ and 1 Privy ’ and the'one marked 1 Stable ’ were all moved towards the north together to make room for the one marked 6 Toolhouse,’ etc. After Mr. Hammond’s decease the building marked ‘ Stable ’ was occupied by Mr. Ramsay. He kept a team there. Think he may have been there nearly a year: he was also a tenant in the Hammond Block. I think Mr. Andrew F. Hammond had a horse there a while. To the best of my recollection, the building marked stable must have come down nearly opposite the end of the house (No. 10) before it was moved back.” .</p> <p>On cross-examination, the witness further testified as follows: “ Don’t know of anybody occupying those old buildings in the rear from the time the tenants who were in them when they were moved back went out, except Mr. Hammond, up to the time of his death. Knew Mr. Hammond kept a horse there during his lifetime, up to the time of his death; he occupied the stable and the woodhouse with his horse and carriage. There was a driveway came in there to drive up to his stables, and this land here back of his house. Up to 1872 Mrs. Hammond used the space north of No. 8 where the clothes lines were strung for her clothes yard. Don’t know who has occupied it since then.”</p> <p>Nathan Longfellow testified for the tenant as follows: “ Was familiar with the property shown on the plan; at one time was special administrator of the estate of Andrew W. Hammond. I took possession of all the property shown on the plan with the exception of No. 10 How Street. Ascertained who I had for tenants, and collected the rents. Buildings not occupied I rented if I could. Found a tenant in No. 8, and collected rents. Land north of No. 8 was used for clothes yard by tenant of No. 8. I let the building marked 1 Stable ’ to Mr. Ramsay; he also occupied in the block. Occupied the stable from June 1, 1884, to December 1,1884, and paid rent to me. Andrew F. Hammond had some occupancy of building marked 1 Woodhouse’; he did n't pay me anything. I let him stay there. No other person occupied any portion of the building marked ‘ Woodhouse ’ and 6 Privy ’ to my knowledge. Let the lower part of building marked 1 Toolhouse,’ etc. to Mr. O. A. Smith for a stable. It was not occupied when I took possession. Let one or two rooms upstairs to a couple of gentlemen, and they stayed there two months. Mr. Smith occupied from August 1,1881, to August 1, 1884; paid rent all the time. Mr. Smith was at the same time hiring a'store in the block. Those buildings were all open, except upstairs, when I took possession. There was a flight of stairs on the south end of the one marked i Woodhouse,’ and I went up those and unlocked the door to gain entrance. I found a carpenter’s bench at one side, and the floor covered -with shavings and chips, as though some one had worked there. I met with the demandant in house No. 10 very soon after I was appointed. I told her Mr. Jenness had sent me in regard to getting a tenant for her house, and I wished to know what it was. I was then in the real estate business, letting houses. She told me what the house consisted of; said she wished to retain the attics to store her furniture until she removed it. She did not at that time say anything to me in reference to the other buildings. Do not recollect that she pointed out any privileges in the other buildings that went with the house No. 10.”</p> <p>Emma M. Drinkwater testified for the tenant as follows: “ I occupied house No. 8 as a tenant from the spring of 1878 about three years. Hired of Andrew W. Hammond. Used the clothes yard directly north of No. 8. Mr. Hammond told me it was for me. Nobody else occupied it while I was there. While I lived in No. 8, I saw some occupation of buildings in the rear by different ones. It was before the decease of Mr. Hammond. I saw Mr. Livingston carrying things in and out there. Other people were passing in and out more or less. Hammond Block was then occupied by stores, liquor saloons mixed in. Should say the building marked 1 Woodhouse ’ was open, and people passing in and out more or less all the time. In some instances they came from Hammond Block. I was living at No. 8 when Mr. Andrew W. Hammond died. I remained in No. 8 after Mr. Longfellow took charge. Mr. Ramsay occupied the buildings marked ‘ Woodhouse ’ and 1 Stable ’ a while. Mr. Smith occupied one marked 1 Toolhouse,’ etc. There was a painter in the second story of the building marked ‘ Woodhouse’ for a while during Mr. Hammond’s life, when I lived at No. 8.” Hannah S. Stickney testified for the tenant as follows: “ Resided in house No. 12 How Street, in about 1875, 1876, and 1877. Andrew W. Hammond was my uncle. Knew that he kept his horse in building marked ‘ Stable.’ Could n’t particularize about other rear buildings. They were open apparently. Mr. Hammond was in and out, and my husband with him. Then other people lived in his tenements. Knew Mr. Livingston then, who occupied a store in the block; saw him in those buildings. Have seen things taken in and out of those buildings frequently. Don’t know of my uncle’s using other rear buildings except the stable for any special purpose; knew he used them all.”</p> <p>The tenant testified as follows: “Am acquainted with the property shown on the plan. Did not become familiar with the premises until the decease of Mr. Hammond, in January, 1879. Was retained shortly after Mr. Hammond’s death to prove the will. When I became acquainted with the property in 1879 it was occupied by tenants, except what Mr. Hammond himself had occupied. Hammond Block, from the way in which it was built and the business conditions prevailing at the time, was occupied largely for liquor saloons. After the will was established in the spring of 1885, I examined the property somewhat minutely preparatory to taking charge of it for the trustee. I found Mr. Longfellow in charge of all the premises shown on the plan except house No. 10, and in addition to that, of all the other real estate which belonged to the estate of Andrew W. Hammond. The land was all connected as one tract, that is, without any intervening ownership. I took charge of the same property, except the two middle stores in the Hammond Block, which were given by Mr. Hammond’s will to his two daughters, and excepting house No. 10, with the land under and adjoining it [naming certain limits]. There were also the various privileges connected with that house which I never undertook to interfere with. The well has been used by tenants of No. 10, if they chose, as well as tenants of the other buildings, without any objection on my part. The land within the limits I have mentioned, with house No. 10, amounts to about 2,000 square feet, including what the house stands on. The path on the south side of the house and the well on the back side, with the amount of land, determined me as to the limits. When I took possession, No. 8 was occupied as a boarding-house; No. 10 was occupied by tenants of Mrs. Hammond. A Mr. Page was occupying the building marked ‘Woodhouse’ and 1 Privy ’ as a stable. The portion of land between the block and what is marked ‘ Toolhouse,’ etc., was not used then, and had not been used at all, for passage purposes, because nobody had occasion to go in except the occupants of the store immediately in front of it. I do not think I had repairs made on the building shown on the plan, except No. 8 and No. 12. There were considerable repairs and changes made on the old buildings in the rear, all of them. I did not bear the expense for the estate of any of them. Mr. Page and Mr. McDonald have paid rent to me in addition to making repairs. Mr. Ray has not paid except by making repairs. When I called on Mr. Page for rent, he made some objection to paying; said he did n’t know but he should have to pay it to Mrs. Hammond. I told him that he would have to pay it to me, that I was representing the trustee. He did not say that he represented Mrs. Hammond or spoke for her at all. The matter was fixed up at the time, and he paid rent to me and never made any further objection. Neither Mrs. Hammond nor any one else, except as I have stated, ever said anything to me with reference to that matter before the commencement of this action. I purchased the property in the fall of 1891, and continued in possession of the property, and gradually notified the tenants that I was the owner; changed the rent receipts to my name. At the time I bought the property neither Mrs. Hammond nor anybody for her had claimed or stated to me that she claimed any more than what she was having, and I knew what she was having. In addition, I had looked at the assessors’ books to see what she was taxed for in the city of Haverhill. I saw what had been assessed to her, and what taxes she had paid, from the time of Mr. Hammond’s death in 1879 to the time I purchased, and, having heard no question raised about it by anybody, I went upon that knowledge in buying. I saw Mrs. Hammond, within a few weeks after I made the purchase, in Boston, and told her I had purchased the property, including the remainder in the Emerson Street house which she had by an ante-nuptial contract. I suggested an exchange of my interest in the Emerson Street property for her interest in the How Street property, which she declined to consider. Then I suggested depositing enough money to yield her whatever income she was getting from the How Street house, speaking of it in that way. She said, 1 You know there is some land.’ I said, 6 Yes, but it is not in shape to be of any use to you that I can see.’ She declined that proposition also; said she would consider nothing but an outright sale, and would have to consult her lawyer about that, and would then let me know what she would do. I heard nothing further from her until in 1894, when her present attorney notified me of her claim. Neither she nor any one who professed to represent her up to that time had given me any notice of any claim which she made to the land which she is now demanding. From the time I took charge of the property all the tenants in the block occupied the passageway north of the block, to a great extent, by things which they set out there, as well as driving in to their back doors. There is a sign, ‘ J. Peterson,’ on the south end of the building marked ‘ Wood-house ’ still. At the time when Mr. Hammond died there was n’t any business in the Hammond Block which made a call for those old buildings in the rear for the tenants in the block, except now and then one.”</p> <p>The demandant, recalled, testified on cross-examination as follows: “I intended, from the time Mr. Abbott took possession there, to assert my rights to the buildings. Considered them my buildings. Authorized Mr. Hoyt to let them. Have been debating with counsel and agitating it since. Had definite intention of asserting my rights. Partly remember conversation which Mr. Abbott has testified to after his purchase of the property. Had but very little conversation with him; was not prepared to make any conversation with him in regal’d to the matter at all. Anything that was to be said would be said By my attorney. Intentionally refrained from saying anything more to him. Have n’t married since the death of my husband.”</p> <p>It was admitted by the demandant that the tenant was the owner of the demanded premises, and entitled to present possession thereof, subject only to the estate and rights of the demandant.</p> <p>It appeared that, in 1871 or 1872, the building marked M was moved to its present position from Merrimack Street, and the buildings marked F, D, and C were moved northerly to make room for M. The tenant offered evidence of a change in the business condition of that part of Haverhill, in the immediate vicinity of the demanded premises, directly after the moving of these buildings; namely, that the shoe industry located on Merrimack Street became depressed, and that by reason thereof there was less call than was expected for the rental or use for business purposes of buildings situated as C, D, F, and M were, as tending to account for the non-occupancy or partial occupancy of these buildings for business purposes, and as bearing on the.question whether the buildings were designed for use or were used in connection with the dwelling-house of Andrew W. Hammond. The judge excluded this evidence, and the tenant excepted.</p> <p>The tenant offered in evidence transcripts of the books of the assessors of taxes of Haverhill, showing the real estate for which Andrew W. Hammond was assessed in 1878, and for which his estate was assessed in 1879, and for which the demandant was assessed for the years 1879 to 1894, both inclusive. The demandant objected to the admission of this evidence. The judge admitted the evidence as to the real estate for which the demand-ant had been assessed in the years named, and refused to admit that as to the real estate for which Andrew W. Hammond was assessed in 1878, and his estate in 1879; and to this refusal the tenant excepted.</p> <p>The tenant requested the following instructions to the jury:</p> <p>“ 1. The demandant is not entitled to judgment against the tenant. 2. The tenant is entitled to judgment against the demandant. 3. The demandant did not take any estate in any portion of the demanded premises under the lease from Andrew W. Hammond to Benjamin F. Brickett, dated July 29, 1878, and assigned to her. 4. As matter of law, the deed from Andrew W. Hammond to C. Howard Poor, dated September 12, 1877, and the deeds from Poor to the demandant, dated September 12,1877, and August 2; 1894, did not convey to the demand-ant any interest in any building or the land under it, except the house No. 10 How Street. 5. Upon the evidence presented, the deed given by Andrew W. Hammond to C. Howard Poor, dated September 12, 1877, and the deeds from Poor to the demandant, dated September 12,1877, and August 2,1894, did not convey to the demandant any interest in any building, or the land under it, except the house No. 10 How Street. 6. As matter of law, the lease from Andrew W. Hammond to Benjamin F. Brickett, dated July 29, 1878, and assigned to the demandant, did not convey to the demandant any interest in any building, or the land under it, except the house No. 10 How Street. 7. Upon the evidence presented, the lease from Andrew W. Hammond to Benjamin F. Brickett, dated July 29, 1878, and assigned to the demandant, did not convey to the demandant any interest in any building, or the land under it, except the house No. 10 How Street. 8. As matter of law, upon the evidence presented, the demandant is not entitled to possession of the wooden building marked D and F on the plan, or to possession of the land under said building. 9. As matter of law, upon the evidence presented, the demandant is not entitled to possession of the wooden building marked C on the plan, or to possession of the land under said building. 10. As matter of law, upon the evidence presented, the demandant is not entitled to possession of any of the land marked O on the plan. 11. As matter of law, upon the evidence presented, the demandant is not entitled to possession of any portion of the parcels of land marked E, G, H, and L, in addition to that which was in her possession at the date of her writ. 12. The demandant is not entitled to any rights in the land included in the passageway in the rear of the Hammond Block, except a right of way to and from the house No. 10 How Street. 13. The demandant is estopped to claim any portion of the demanded premises in the possession of the tenant, because she has knowingly permitted the tenant to expend money upon them, and because she has kept silence as to her own title when it was her duty to speak. 14. The demand-ant, by her conduct in relation to the payment of taxes, and by her acts of occupation, elected what portion of the demanded premises she would claim under the conveyances to her, and is estopped to claim any additional portion. 15. The description of the premises in the conveyances under which the demandant claims title to the demanded premises being indefinite, it was her duty to elect what property she would claim under such conveyances ; and having by her conduct and occupation taken the house No. 10 How Street, with 2,000 square feet of land, she is estopped to claim any other portion of the demanded premises. 16. The deed from Andrew W. Hammond to C. Howard Poor, dated September 12, 1877, and the lease from Andrew W. Hammond to Benjamin F. Brickett, dated July 29, 1878, would only include land used as a yard with the house No. 10 How Street, and would not include land used as a passageway to the house No. 10 How Street and other buildings. 17. Neither the deed to C. Howard Poor nor the lease to Benjamin F. Brickett conveyed any interest in the land included in the passageway in the rear of Hammond Block, except a right of way. 18. Neither the deed to C. Howard Poor, dated September 12, 1877, nor the lease to Benjamin F. Brickett, dated July 29, 1878, conveyed any land or buildings which were then used or designed to be used by tenants.”</p> <p>The demandant ‘requested the judge to instruct the jury as follows:</p> <p>“ There is no evidence in the case from which the jury can find that the demandant ever elected to take or hold as the granted premises any specific portion of the demanded premises less than the amount now claimed by her, which can be set off or described by metes and bounds.”</p> <p>The judge refused to give the first eleven rulings requested by the tenant; and the tenant excepted. As to the remaining requests by the tenant, and the request by the demandant, the judge instructed the jury, among other things, as-follows:</p> <p>“ The deeds in question and the lease use this language, ‘land under and adjoining said house as now used with it,’ that is, according to the proper meaning of the words, land under and adjoining said house used now in connection with the use of the house. In the first place, was the house in which Mr. Hammond then lived No. 10 or No. 12? It is agreed 'that the street mentioned in the second deed was the wrong street, and that the street on which Mr. Hammond lived was How Street, and not Emerson Street. Much of the evidence is to the effect that Mr. Hammond did not live in No. 12, but did live in No. 10, and there is no doubt that he intended to convey the house where he lived, and it will be your duty to determine in which of these houses, No. 10 or No. 12, he lived.</p> <p>“ The next question is, how much land outside of the house was properly included in that description? That phraseology has given rise to the controversy here, and the meaning of the question is this: At the time when those deeds were given, and the next year when the lease was given, how much land outside of the exact limits of the house did Mr. Hammond use in connection with the use of the house? The demandant says that much of it shown on this plan was so used; that a stable, the places marked ‘ Privy ’ and ‘ Woodhouse,’ and the other house near Hammond Block and the passageways, were so used. The tenant says that these were not so used. . . . Some evidence has been introduced as to whether other persons at this time were using these buildings in the rear as tenants. Property which'a person lets, situated as this is, would be used for a different purpose from that use and personal occupation which would be connected with a house where a person lived. A piece of property rented by Mr. Hammond would not be property used by him in connection with the house where he lived.</p> <p>“ The tenant further appeals to the practical construction which he says has been put upon the matter by the demandant. The tenant says that these were deeds and a lease which contained a conveyance of something about which the minds of the parties met, that the language is indefinite, and that the construction which the demandant has put upon what was conveyed by these instruments is indicative of what she understood was conveyed ; that the demandant only took the house and a small amount of land around it. The demandant says that is not so, and her counsel argues that she did all that a woman under the circumstances could be called upon to do. The tenant says that the demandant paid taxes upon a certain limited quantity of land, 2,000 feet, and no more; that the tax lists are open to everybody, and she knew, or ought to have known, that what she paid taxes upon was less than what she now claims. The demandant says that she did whatever she, under those circumstances, ought to be called upon to do, that she paid her tax bills when they came in, that she did not examine, and was not under obligation to examine, how many feet were included in those bills. These are questions of fact for you, that.is, they are incidental questions bearing upon the main question of what was conveyed by those instruments, the language of the instruments being indefinite and obscure, and that depends upon what land adjacent to the house was used with it at that time. However much subsequent events may throw light upon past ones, and whatever inferences you may draw from any evidence in the case, the question is not what was the subsequent usé of those buildings, but what was the use of the buildings at that time by Mr. Hammond ?</p> <p>“ I am also asked to speak to you in regard to an election by the demandant to take a certain piece of this property for her own. There is no evidence in the case showing that the demandant ever elected to take or hold as the granted premises any specific portion of them less than the amount which she now claims, which she set off, or which she specifically claimed by any specific description, the evidence which has been introduced, and which is sought to be availed of in regard to thé demandant’s action not being of that character, but being of a more general character as affecting her rights and her claims. The claim is on the part of the tenant, that by the demandant’s conduct, by the lapse of time which intervened between the date of these instruments or the death of Mr. Hammond and the time she brought her suit without specific and clear claim to the property on her part, by her paying taxes on a limited amount, by various statements which she made, as well as of the absence of a claim for a larger amount, she indicated that the understanding on her part of what was conveyed by these instruments gave a practical construction by her to these deeds that they conveyed a less amount than she now claims; on the other hand, as I have already stated, she says that she has done nothing inconsistent with making a full claim now. These are the claims upon that question upon the one side and the other.” And the tenant excepted.</p> <p>At the close of the charge, at the request of the tenant, the judge added that in what had been said in the charge as to the tenant’s claim that the demandant had put a practical construction upon the grant by her conduct, should be included the tenant’s claim that he had expended money during the time upon some of this, property, and that the demandant knew, or might have known, that fact.</p> <p>The judge also, with the agreement of counsel, directed the jury to answer the following questions:</p> <p>“ 1. Was the house marked No. 10, or the house marked No. 12, on the plan submitted to the jury, the house occupied by Andrew W. Hammond, September 12, 1877, and referred to in his deed of that date to C. Howard Poor ?</p> <p>“ 2. Were any of the parcels marked on said plan A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, respectively land adjoining said house as used with it at the date of said deed, and at the date of the lease from Andrew W. Hammond to Benjamin F. Brickett, July 29, 1878 ; and, if so, which of said parcels?”</p> <p>To the first question the jury answered, “ No. 10 was the number ” ; and to the second question they answered, “ C, D, E, F, G, H, L, N, O ”; and returned a verdict for the demandant.</p> <p>After the verdict, the tenant was allowed to amend his plea by adding a specification of defence, that the demandant “ is estopped in equity and good conscience to maintain this action, because that from the spring of 1879, the time when she claims she bécarne entitled to possession of the demanded premises, until the fall of 1894, she knowingly permitted the tenant to expend money upon the premises, and because she kept silence as to her own title when it was her duty to speak : and that the demandant, by her conduct in relation to the payment of taxes, and by her acts of occupation, elected what portion of the demanded premises she would claim under the conveyances to her, and is estopped to claim any additional portion.”</p> <p>The tenant moved that the verdict be set aside and a new trial granted, on the ground that it was against the law and the evidence, and the weight of evidence. Subsequently, upon the suggestion of the judge, that otherwise the verdict would be set aside, the demandant relinquished all claim under the verdict to the portion of the demanded premises marked If on the plan. The judge then refused to set the verdict aside, and to order a new trial; and the tenant alleged exceptions.</p>

<p>Waterworks — Statute — “ Natural Flow” ■ — • Damages — Petition.</p> <p>The St. 1875, c. 217, entitled “An Act to provide the city of T. with pure water,” authorized in § 1 the taking of the waters of either T. River, or E. and A. Ponds, " provided, however, that if said city of T. take water from said A. Pond the said city shall construct and maintain a dam at the place where the A. Pond flows into N. Biver, not exceeding two and one half feet in height above the mudsill as it now exists, at said place; and provided, further, that if said dam shall not retain sufficient water for one year’s supply for the city of T., then said city shall have the right to, and shall, raise said dam to such a height as will retain sufficient water for one year’s supply for said city of T. It is also provided that the natural flow of said A. Pond into the N. Biver shall at all times be maintained.” Section 2 provided for the assessment of damages to all persons injured in their property by proceedings under the act. Held, upon the petition of the owner of a mill privilege on T. River, into which the waters of N. Biver flow, that the statute limited the quantity of water which the city might divert; that maintaining the “ natural flow ” meant something more than leaving the outlet where it had previously been ; and that the petitioner was entitled to be heard on the question of damages.</p> <p>A petition by the owner of a mill privilege on a river against a city, which was authorized by statute to take the waters of the river or of a certain pond for a water supply, alleged that the city, acting under the authority of the statute, took the waters of the pond and pumped and diverted therefrom very large quantities of water, all of whicli would otherwise have flowed to the petitioner’s mill privilege ; that later the city, by an order of its city council, further took, under the provisions of the statute, the waters of the pond for the purpose of supplying its inhabitants with water; that ever since the city had continued, under these takings, to pump and divert in large quantities the waters of the pond which would otherwise have flowed to the petitioner’s mill privilege; and that, by these takings and diversions of water, the petitioner had suffered great injury for which the city had failed to award him any damages. Held, tiiat the petition did not purport to seek a recovery except for the water lawfully taken; and that a demurrer thereto could not be sustained on the ground that an action of tort was improperly joined with a petition for the assessment of damages.</p>

<p>False and Fraudulent Representations — Damages in Equity — Survival of Remedy.</p> <p>A bill in equity, brought on February 4, 1895, asked for no relief peculiar to courts of equity, but merely for compensation in damages for alleged false and fraudu- . lent representations made by an agent of the defendant’s testate about nine years before the filing of the bill, whereby the plaintiff or his assignor was induced to part with certain equitable interests in lands at less than their value. The testate died on January 11, 1893. There was no allegation in the bill that the estate received by the defendant from his testate had been benefited by the fraud, and there was nothing to show that the testate was more than a naked trustee in fee. Held,, that the cause of action did not survive, and that the bill could not be maintained.</p>

Bill in equity, filed June 25,1894, in behalf of the plaintiff and of all other holders of certain bonds, against the Cape Cod Ship Canal Company, a corporation, Frederic A. Lockwood, Thomas L. Livermore, Quincy A. Shaw, the Farmers’ Loan and Trust Company, a corporation, and Henry M. Phillips, Treasurer of the Commonwealth.

<p>Contract, under the provisions of Pub. Sts. c. 143, § 13, against Susan P. Allen, executrix of the will of Herbert F. Allen, and George K. Nichols and H. Catherine Allen, sureties upon a probate bond given by said Herbert F. Allen, executor of the will of Luke F. Allen. The executor had deceased, and the action was defended by the sureties. The case was reserved for the full court by Field, C. J., upon the pleadings and a report, which was to be treated as a master’s report, such judgment and award of execution to be entered as justice might require. The facts appear in the opinion.</p>

<p> Action upon a Debt due a Partnership after the Debtor has received his Discharge in Insolvency. </p> <p>A discharge in insolvency under the laws of this Commonwealth is not a bar to an action upon a debt due a partnership, one member of which never was a citizen or resident of this Commonwealth. Field, C. J., Allen, & Holmes, JJ., dissenting.</p>

<p>Bill in equity, to compel the defendant to accept a deed of land, and otherwise perform the covenants of a written agreement:</p> <p>The bill alleged that the plaintiff, who was the owner in fee of a lot of land in Boston, on the southeast corner of Beacon and Aberdeen Streets, by an agreement dated September 27, 1895, agreed to sell the lot, and the defendant agreed to purchase the same, which was to be conveyed on or before October 3, 1895, by a good and sufficient warranty deed ” of the plaintiff, “ conveying a good and clear title to the same, free from all encumbrances and liens”; that on October 3, 1895, within the time specified by the agreement, the plaintiff tendered to the defendant a warranty deed of the lot in the required form, and with proper covenants; and that the defendant refused to accept the same. The answer alleged that the board of survey of the city of Boston, acting under the powers conferred upon it by St. 1891, c. 323, as amended by St. 1892, c. 418,* had placed an encumbrance or restriction on the lot, so that the plaintiff was unable to perform his agreement to convey said premises “ free from all encumbrances and liens,” in that the board had- filed in the office of the city surveyor a plan showing the location of Aberdeen Street as fifty feet wide, being an addition- to the present width of said street of five feet on each side of the-street, the present width of Aberdeen Street being only forty feet-;. that, in order to widen Aberdeen Street in accordance with the-plan, a strip of land five feet wide would be taken from the westerly side of the complainant’s land; and that the street had not been widened, and no proceedings had been begun to acquire title to this five-foot strip, or to widen the street.</p> <p>The plaintiff filed a special replication, admitting all the facts as alleged in the respondent’s answer, and alleging that § 4 of St. 1892, c. 418, and also that portion of § 7 of St. 1891, c. 323, ' which provides that “ the preceding sections shall not be construed ... to render said city liable for damages of any kind, except for making entries upon land and for placing and maintaining monuments and marks as provided in section six,” are unconstitutional, for the reason that, inasmuch as the owner is virtually deprived of the right to build upon his lot, and the money value of the lot is thereby greatly lessened, the statute thereby provides for the taking of private property for public use without compensation and without the owner’s consent, in contravention of the Constitution of Massachusetts, Declaration of Rights, Art. 10, and also deprives the owner of his property in contravention of Art. 12, and without due process of law, in contravention of the Fourteenth Amendment of the Constitution of the United. States, and that therefore the statute is to that extent void, and creates no encumbrance of the land agreed to be conveyed.</p> <p>Hearing before Holmes, J;, who reserved the case on the pleadings for the consideration of the full court.</p> <p>The city of Boston, although not a party to the record, was allowed to file a brief.</p>

<p>Four action's op tort. The first was against Lewis H. Plimpton, Edward H. Morrill, and Mary A. Squires, for causing the breach of the plaintiff’s engagement of marriage; the second was against Plimpton, who was a physician, for negligence in making an examination .of the plaintiff; the third was against Morrill for slander; and the fourth was against Plimpton for slander. The cases were tried together in the Superior Court, before Corcoran, J., who directed the jury to return a verdict for the defendants in the first case, and for' the defendant in each of the other cases; and the plaintiff alleged exceptions. The facts sufficiently appear in the opinion.</p>

The following order was passed by the Council on June 16, 1896, and transmitted on June 20, by bis Honor the Acting Governor, to the Justices of the Supreme Judicial Court, who, on September 25, 1896, returned the answer which is subjoined.