Volume 167 — Massachusetts Reports

<p>Contract to purchase Land—Unauthorized Act of Agent — Rescission—Sufficiency of Allegations of Bill in Equity — Fraud — Public Policy — Parol A greement — Equity.</p> <p>A hill in equity brought by A. against B. alleged that the agent of B. employed to offer B.’s land for sale, in order to induce A. to buy a lot at a certain price per foot, offered in behalf of B. that, if A. would purchase, B. would not sell any of his land shown on a certain plan at less than that price. A. accepted the offer, agreed to buy a lot on the terms named, and afterwards took a deed therefor. The agent’s offer was not in writing, and he had no authority from B. to make it, either express or implied; but A. never doubted that the agent had authority. Within a little less than a year after A. took his deed, B. offered lots and sold two of them at less than the price named in the sale to A. A., having been informed thereof, notified B. that such sale was a breach of B.’s agreement. B. denied the authority of the agent to make the agreement, and repudiated it. Negotiations ensued, and about five months thereafter A: notified B. of his election to rescind, and demanded back the money paid by him, and the cancellation of a note given in part payment, and a discharge from the covenants of a mortgage given to secure the note. Held, that the averments were sufficient to entitle A. to rescind the purchase, and get back the consideration he had paid, upon reconveying the land to B.</p> <p>Where B. repudiates the means by which A. was brought to contract witli him, which means was the unauthorized act of the agent of B., A. is entitled to give up the contract altogether if it is possible to restore B. to his former position, unless there is some other objection to A.’s rescinding; and the rule in this respect is the same, whether the unauthorized act of the agent was fraudulent, or merely a matter of warranty or promise.</p> <p>There may be a rescission of a purchase of land after the purchaser has been in possession for a considerable length of time, and although the land restored has fallen in value.</p> <p>An agreement by B. that, if A. will purchase a lot of a certain tract of land at a certain price per foot, he will not sell any of the remaining land at less than that price per foot, is to be construed in view of the circumstances, and, no limit of time being fixed, it will only last for a reasonable length of time; and, so construed, it is not open to objection on the ground of public policy.</p> <p>An agreement by paroi which is collateral to a written contract, and on a distinct subject, may be proved.</p> <p>Where A., having purchased a lot of land of B., seeks not only a return of the money which he has paid, but a cancellation of a note given in part payment, and a discharge from the covenants of a mortgage given to secure the note, his remedy is in equity.</p>

<p>Tort, by Charles E. Russell and George W. Martin, copartners as Charles E. Russell, and Company, for the conversion of certain personal property. Writ dated September 2,1893. The defendant, who was a deputy sheriff, justified under a writ against the plaintiff Martin, on which he attached the property in question. Trial in the Superior Court, before Fessenden, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The case was referred to an auditor, who found and reported the following facts.</p> <p>Martin had been carrying on business at two stores for several years, and had become embarrassed, was insolvent, was being pressed by his creditors, and was in immediate expectation of an attachment being put upon his stock. He had, some time before, made some proposition to Russell about going into partnership with him. In pursuance of this idea, an inventory of the stock was taken in the latter part of August, 1893. This inventory, omitting a small amount of book accounts which were included in it, footed up $5,794.72. The prices carried out in it were the prices at which Martin bought the goods. Martin’s offer to Russell was to take him in as an equal partner on the payment of one thousand dollars.</p> <p>On August 31, Russell having decided to accept Martin’s offer, the partnership papers were made and executed in the forenoon, and an order was given by Russell on a savings bank book on which there was nearly a thousand dollars due. The book itself was obtained by Russell when he went home to dinner, and was given to Martin about one o’clock. About two o’clock the attachment was made. The order was soon after transferred to Martin’s wife, and is now held by her, and had been by her presented to the bank, but it was not paid.</p> <p>“ It was admitted that the formation of the partnership and the transfer of the interest in the goods by Martin to Russell as his partner was, on the part of Martin, in contravention of the insolvency laws, and with the purpose of preventing the attachment. There was evidence tending to prove that Russell knew the condition of Martin’s affairs and his purpose in making the transfer, and also that there was an agreement between Martin and Russell that the money should remain in the bank until any difficulty was settled; but on the whole evidence I do not find these facts to be proved. So far as appeared, the partnership was to begin on the delivery of the papers. Russell went back to one of the stores, and was in possession there at the time of the attachment. He had not been in the other store, or taken any actual possession of the goods there, at the time of the attachment. But it seems to me that enough had been done to pass title to all the goods to him as partner.</p> <p>“ It was admitted that, since the attachment, Martin had been declared insolvent, and that his estate was being administered in the Insolvency Court, and that the goods attached by the defendant had been surrendered by him to Martin’s assignee in insolvency.</p> <p>“ As no evidence was offered before me of the damages for such detention, I report that the plaintiff should recover only nominal damages, namely, the sum of one dollar. . . . But if the court should be of the opinion that the plaintiff is entitled to recover the value of the stock attached, then I further report that, to my best judgment, the fair market value of the goods and fixtures at the time of the attachment would be twenty-six hundred dollars.”</p> <p>The plaintiffs put in evidence the auditor’s report, and the defendant put in evidence a certificate of the insolvency proceedings of the plaintiff Martin.</p> <p>It was then agreed that the defendant delivered the property in question to the assignee in insolvency of the estate of Martin on November 1, 1893.</p> <p>It was also agreed that if the court, in the exercise of its discretion, might properly allow the plaintiff Russell to discontinue as to Martin as plaintiff, either by amendment or otherwise, and that, if the action could then proceed in the name of Russell alone, the fact that Martin was joined as plaintiff should not defeat the right of recovery.</p> <p>The defendant then rested his case, and requested the judge to rule that, on the evidence and admissions, the action could not be maintained, because of the fraud in forming the partnership ; but the judge refused so to rule.</p> <p>The defendant also requested the judge to rule that, on the evidence and admissions, only nominal damages could be recovered. The judge refused so to rule, but ruled that, if the plaintiffs were entitled to recover, they could recover the full value of the goods, which it was agreed was $2,600, as found by the auditor.</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</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>Error in Sentence — Habeas Corpus — Writ of Error.</p> <p>Where there is error in a sentence in that it did not include solitary imprisonment, the remedy is by writ of error, and not by petition for a writ of habeas corpus.</p>

Complaint, for maintaining a liquor nuisance, under St. 1887, c. 206, entitled “ An Act to prohibit the unlicensed selling, distributing, or dispensing of intoxicating liquors by clubs.” Trial in the Superior Court, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.

<p>Contract, to recover for extra work in the excavation of stones and boulders in the construction of a new road in the defendant town. Trial in the Superior Court, without a jury, before Dewey, J., who found for the defendant; and the plaintiff alleged exceptions, the ■ nature of which appears in the opinion.</p>

Contract upon a policy of insurance against accident. Trial in the Superior Court, before Graskill, J., who directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant while employed in its wire mill. Trial in the Superior Court, before Braley, J., who, at the defendant’s request, ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. The declaration contained three counts, one at common law and the other two under the employers’ liability act, St. 1887, c. 270, as amended by St. 1894, c. 499.

Tort, for the conversion of certain personal property, consisting of the stock of goods, fixtures, and furniture of a drug store. Trial in the Superior Court, before Graskill, J., who reported the case for the determination of this court, in substance as follows. The plaintiff was the general owner of the property at the time of the alleged conversion.

<p>Foreign Corporation — Insolvency — Filing of Certificate.</p> <p>A foreign corporation may make a voluntary petition in insolvency before appointing the commissioner of corporations as its attorney, or filing the papers required by St. 1884, c. 330.</p>

<p>Pooi• Debtor — Recognizance—Affidavit — Late Entry of Writ — Discharge of Surety.</p> <p>It is no objection to an affidavit for the arrest of a debtor on mesne process, which affidavit purports to be made in behalf of the plaintiffs in the action, that the person making it was one of the plaintiffs.</p> <p>The surety on a poor debtor’s recognizance is not discharged by the fact that the writ in the original action was not entered on the return day, if it was subsequently entered under the rules of the court.</p>

<p>Trespass on Land — Easement, — Former Judgment — Evidence — Deed — Plan.</p> <p>At the trial of an action for trespass on the plaintiff's close, in which the defendant justifies under a right of way, the judgment by default after issue joined in a former action between the same parties for trespass on the same close, in which the defendant justified under a right of way, and the declaration in which alleged not only that the defendant removed the fences, but that he ploughed up the soil and pastured the land, is not conclusive upon the alleged right of way.</p> <p>If both of the parties to an action for trespass on land, in which the defendant justifies under a right of way, derive title from a common grantor, the conveyance to the plaintiff reserving the right and the grant to the defendant of a portion of the grantor’s remaining land being subsequent thereto, a second deed to the defendant of the same land, expressly mentioning the right of way, made after the judgment in a former action for trespass between the same parties as to the same land, which is not conclusive upon the alleged right of way, is admissible in evidence.</p> <p>The deeds under which the parties to an action for trespass on land held their titles, both claiming under a common grantor, referred to a “ plan of lots belonging to G., situate on O. Avenue, surveyed by A., and dated ” a certain day, and stated that copies of the plan were held by the grantor and another. A plan was produced by the defendant which was marked substantially as above, and bore the same date; and he testified that he got it from his grantor, who obtained it at the time or soon after he purchased the land, fourteen years before. Held, that it was admissible in evidence.</p>

<p>Bill in equity, filed in the Superior Court on August 7, 1891, by Chester Marr and Frank W. Forbes, to remove a cloud upon the title to certain real estate in Westborough, conveyed, with other property, by the M. V. Livingston Cycle Manufacturing Company to the plaintiffs, as trustees, for the benefit .of the creditors of the corporation; such cloud consisting of an attachment made by the present defendant in an action against the corporation pending prior to the conveyance. A supplemental bill was allowed .to be filed on March 13, 1895, by Arthur R. Marten and Frederick Goddard, who had acquired the title and interest of the original plaintiffs. The case was referred to a master, who found that the plaintiffs were entitled to the relief prayed for. Hearing before Maynard, J., who entered a decree, ordering the defendant to execute to the plaintiffs a discharge of the attachment; and the defendant appealed to this court. The facts appear in the opinion.</p>

<p>Personal Injuries — Cause of A ccident Conjectural.</p> <p>An action for personal injuries alleged to have been caused to the employee of a railroad company by a defect in the machinery of a hand-car, from which he was thrown while lie was turning one of the cranks thereof, cannot be maintained, if the cause of the injury is wholly conjectural.</p>

<p>Contract, to recover the amount of salary alleged to be due under the terms of a written contract executed by the parties, and upon an account annexed for commissions on sales of goods. Trial in the Superior Court, without a jury, before Maynard, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by being run down by an electric car. At the "trial in the Superior Court, before Braley, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Four bills in equity, each filed April 5, 1894, by the owners of land abutting on Garden Street in Cambridge, to restrain the construction and operation of an overhead single trolley system of electric cars upon that street. The cases were heard together before Barker, J., who entered a decree in each case, denying the injunction prayed for, and dismissing the bill; and the plaintiffs appealed to the full court. The facts appear in the opinion. ,</p>

<p>Personal Injuries — Death — Employers’ Liability Act — Negligence — Due Care.</p> <p>Even if it is assumed, in an action under the employers’ liability act, St. 1887, e. 270, for personal injuries occasioned to the plaintiff’s intestate while coupling cars, and for causing his death, that the fireman who backed the train was' a person in charge or control thereof, and that the intestate’s foreman who gave the signal to back was the superintendent or was acting as superintendent, the action cannot be maintained, if there was no evidence to warrant the jury in finding that the fireman or foreman was negligent in failing to warn the intestate or to give a signal of the backing of the cars, and if the intestate was not in the exercise of due care.</p>

<p>Name in Indictment—Variance— Law and Fact.</p> <p>Evidence that a child named Helen Eva K., whom a person is indicted for assaulting, was on several occasions called by the name of Etta It., which was the name given to her in the indictment, is sufficient to make it the province of the jury to determine whether there was a variance.</p>

<p>Probate of Will — Issues to Jury — Practice — Evidence.</p> <p>Even if an objection to the admission of a will, at the trial of an appeal from a decree allowing it, had any force at the time when it was made, it may be avoided by the fact that the subscribing witnesses were called and testified subsequently.</p>

Bill in equity, to restrain the defendant White, administrator of the estate of Edson Clark, from collecting the proceeds of a certain life insurance policy on the life of the intestate, and asking that the New York Life Insurance Company be ordered to pay the same to the plaintiff. The insurance company filed an answer offering to pay the proceeds to whomsoever the court might direct.

<p>Tort, for personal injuries occasioned to the plaintiff, who was seventeen years old, by the spattering of a mixture of gum and caustic soda into her eye while operating, in the defendant’s employ, a machine used in making envelopes. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Loss of Life — Railroad — Conjectural Cause and Manner of Death — Action.</p> <p>An action cannot be maintained against a railroad corporation for causing the death of a brakeman in its employ, where. the cause and manner of his death .are purely conjectural.</p>

Tort, for personal injuries occasioned to the plaintiff while walking on the sidewalk on Dale Street in the defendant city.

<p>Tobt, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the caving in of the bank of an unshared ditch in which he was working. At the trial in the Superior Court, before HopTcins, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Death,— Negligence — Employers’ Liability Act — Regulations of Railroad inadmissible in Evidence.</p> <p>At the trial of an action against a railroad company for causing the death of the plaintiff’s intestate in the defendant's freight yard by the alleged negligence of a person in charge of the defendant’s train, extracts from the regulations’for the government of employees of the company designed.to regulate the responsibilities and conduct of engineers, conductors, and brakemen in the management of trains out upon the road, and not in the freight yards, are inadmissible.</p>

<p>Insolvent Estate of Deceased Person — Conditional Promise to pay not a Promissory Note —- Statute of Limitations.</p> <p>A promise in writing, duly witnessed, to pay A. or order on a certain day a certain sum of money, “ it being understood that said A. shall allow hereon as part payment hereof such sums of money and such accounts as I may have against him on said day, and until fully paid, and further that I shall not be called upon for the full payment hereof until I am released from all liability as surety for said A.” and another on a certain recognizance named, and “ deducting herefrom such sums as I may in any event be required to pay thereon,” is not an unconditional promise to pay a definite sum, and is not, therefore, within the exception to the limitation of six years made by Pub. Sts. e. 197, § 6, in the case of “a promissory note signed in the presence of an attesting witness.”</p>

<p>Money had and received— Trust — Action.</p> <p>If money is deposited by A. in a savings bank to the credit of “ A. or B., trustee for A.,” for the purpose of A.’s support and burial, and B. draws the money from the bank and appropriates it to his own use without A.’s knowledge or consent, the administrator of A.’s estate may maintain an action against B. for money had and received.</p> <p>Contract, by the administrator of the estate of Elizabeth Henchey, for money had and received by the defendant to the use of the plaintiff’s intestate. At the trial in the Superior Court, before Gaslcill, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Contract, upon a policy of insurance issued by the defendant on the life of Adaline Morelle, and payable to the plaintiff. Trial in the Superior Court, before Sheldon, J., who found for the defendant on the ground that the insured was not in sound health when the policy was issued, as required by its terms; and the plaintiff alleged exceptions.</p>

Bill in equity, filed in the Superior Court on March 18, 1896, alleging the following facts. The plaintiffs, on December 21,1891, were the owners in fee, in trust for Charlotte It. Chamberlin, of a large tract of land in the city of Worcester, and have ever since been the owners thereof.

<p>Bill in equity, filed in the Superior Court on April 16, 1896, to restrain the defendant from levying an execution upon the first named plaintiff’s equity of redemption in certain land in Northampton. Hearing before Dewey, J., who, at the request of the parties, reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Divorce— Cruel and Abusive Treatment — Evidence—Condonation.</p> <p>It is within the discretion of the judge at the trial of a libel for divorce, on the grounds of cruel and abusive treatment and extreme cruelty in the spring of 1893 and later, to admit evidence of bodily violence in the summer of 1892, so far as it bears on the question of animus.</p> <p>An exception to the admission, at the trial of a libel for divorce on the ground of cruel and abusive treatment, of evidence that the libellee applied a certain epithet to the libellant, because not covered by a specification relating to cruel and abusive epithets, will not be sustained if the epithet is not so covered, the judge having subsequently ruled that no divorce could be granted under that specification.</p> <p>At the trial of a libel for divorce on the ground of cruel and abusive treatment, it is within the discretion of the judge to exclude evidence, offered by the libellee, of persons who were neighbors of and saw the parties frequently, that they appeared to live happily together.</p> <p>At the trial of a libel for divorce on the ground of cruel and abusive treatment, the libellee testified that he objected some to his wife being in company with A because it made trouble; and the libellee’s sister also testified to admissions of the libellant which tended to show a suspicious degree of intimacy between the latter and A., which called for explanation. A. was allowed to testify, in rebuttal, that there never bad been anything improper in his relations with the libellant; that the parties dined at his house; and that he had had a conversation with the libellee since the filing of the libel, in which he made no complaint of the atten1 tians of the witness to his wife. Held, that the evidence of A. was properly admitted.</p> <p>Any condonation by a wife of her husband’s cruelty is upon the explicit condition that he will thereafter treat her with conjugal kindness, and a breach of this condition revives the- right to maintain a libel for divorce for the original misconduct; and .such breach may be shown by evidence which would be insufficient to establish the principal charge.</p> <p>If the judge who hears a libel for divorce on the ground of cruel and abusive treatment finds that all acts of the libellee prior to a certain date were condoned, and would not support the libel unless revived by subsequent misconduct of the libellee, evidence that, on that date, he abused and threatened the libellant and expelled her from their home at a late hour of the night will warrant the judge in finding a breach of the condition upon which the condonation was founded, and that such breach revived any right which the libellant had to maintain the libel for the original misconduct.</p> <p>In a case of divorce no exception lies to this court in matter of fact.</p>

<p>Bill in equity, filed December 7, 1894, against fourteen individual defendants and two trades unions, alleging that the plaintiff was engaged in business as a manufacturer of furniture, in the premises numbered 141,143, 145, and 147 North Street, in Boston, and employed a large number of men in carrying on his business there, that there were in Boston certain associations named as defendants, which were composed of persons engaged in similar occupations to that of the individual defendants, of whom the defendant Guntner was agent; that on or about October 11, 1894, the plaintiff received a communication from the defendant unions as follows: “ Your upholsterers do hereby kindly submit enclosed Price-list for your earnest consideration, the object is to institute a more equal competition this we would asked to go into effect on and after Oct. 29, 1894, and we kindly request that after said date Nine hours constitute a day’s work”, that on or about November 21, 1894, without notice and without warning, all of the individual defendants, except Guntner, struck, and left the plaintiff’s employment and premises in a body; that since that date the plaintiff had endeavored to carry on his business, and to employ other men to fill the places of the defendants, but the defendants, their agents and servants, had wilfully and maliciously patrolled the streets in front of his premises in groups and squads continu'ously, and had used indecent language and epithets to those working in his employ in the places made vacant by the defendants, that they had wilfully and maliciously blocked up the doorway and entrance of his premises, and there intercepted, interfered with, and intimidated persons who desired to visit the premises for the purpose of engaging in the employment of the plaintiff, and for the purpose of trading with the plaintiff; that they had wilfully and maliciously intimidated and threatened the persons whom he had employed to take their places with bodily harm if they continued in the plaintiff’s employment, and had caused certain new men so employed to leave his employment, that they had notified the insurance companies that the property there insured was in danger, and had attempted to effect a cancellation of the insurance carried by the plaintiff on his stock of goods; that they had followed the delivery team of the plaintiff in divers places and cities, and had been to several customers of the plaintiff and threatened to injure them and their business if they continued to trade with the plaintiff, and generally to injure the plaintiff in his said business, and to prevent his continuing to carry on his business; that the defendants, their agents and servants, had been and were a nuisance and obstruction to persons travelling on the street, and to persons in the employ of the plaintiff, and to persons intending to trade with the plaintiff at his premises; that all acts of the defendants were a part of a scheme to prevent persons from entering the employment of the plaintiff and from continuing in his employment, that the business carried on by the plaintiff was a large one, and the good will was of considerable value, in both of which the plaintiff had already been injured; and that, if the defendants were permitted to continue their acts, both the business and the good will would be further seriously injured and destroyed.</p> <p>The prayer of the bill was that the defendants might be restrained from visiting, or causing other, persons to visit, the premises occupied by the plaintiff, or from, stopping or remaining in the vicinity of the premises for the purpose of interfering with the workmen of the plaintiff or any person who might desire to enter his employment, or by intimidation, insults, or threats from inducing any person in the employment of the plaintiff to leave, or any person to refrain from entering into, such employment, and from any and all acts within or in the immediate vicinity of the plaintiff’s premises which would tend to obstruct him in the transaction of his business therein, or intimidate or annoy the workmen of the plaintiff as they enter into or depart from the premises, and from annoying and intimidating persons who might desire to work therein; and for further relief.</p> <p>The following decree was entered at a preliminary hearing upon the bill: “ This cause came on to be heard upon the plaintiff’s motion for a temporary injunction; and after due hearing, at which the several defendants were represented by counsel, it is ordered, adjudged, and decreed that an injunction issue pendente lite, to remain in force until the further order of this court, or of some justice thereof, restraining the respondents and each and every of them, their agents and servants, from interfering with the plaintiff’s business by patrolling the sidewalk or street in front or in the vicinity of the premises occupied by him, for the purpose of preventing any person or persons who now are or may hereafter be in his employment, or desirous of entering the same, from entering it, or continuing in it; or by obstructing or interfering with such persons, or any others, in entering or leaving the plaintiff’s said premises ; or by intimidating, by threats or otherwise, any person or persons who now are or may hereafter be in the employment of the plaintiff, or desirous of entering the same, from entering it, or continuing in it; or by any scheme or conspiracy among themselves or with others, organized for the purpose of annoying, hindering, interfering with, or preventing any person or persons who now are or may hereafter be in the employment of the plaintiff, or desirous of entering the same, from entering it, or from continuing therein.”</p> <p>Hearing upon the bill and answers before Holmes, J\, who reported the case for the consideration of the full court, as follows:</p> <p>“ The facts admitted or proved are that, following upon a strike of the plaintiff’s workmen, the defendants have conspired to prevent the plaintiff from getting workmen, and thereby to prevent him from carrying on his business unless and until he will adopt a schedule of prices which has been exhibited to him, and for the purpose of compelling him to accede to that schedule, but for no other purpose. If he adopts that schedule he will not be interfered with further. The means adopted for preventing the plaintiff from getting workmen are, (1) in the first place, persuasion and social pressure. And these means are sufficient to affect the plaintiff disadvantageous^, although it does not appear, if that be material, that they are sufficient to crush him. I ruled that the employment of these means for the said purpose was lawful, and for that reason refused an injunction against the employment of them. If the ruling was wrong, I find that an injunction ought to be granted.</p> <p>“ (2) I find also, that, as a further means for accomplishing the desired end, threats of personal injury or unlawful harm were conveyed to persons seeking employment or employed, although no actual violence was used beyond a technical battery, and although the threats were a good deal disguised, and express words were avoided. It appeared to me that there was danger of similar acts in the future. I ruled that conduct of this kind should be enjoined.</p> <p>“ The defendants established a patrol of two men in front of the plaintiff’s factory, as one of the instrumentalities of their plan. The patrol was changed every hour, and continued from half-past six in the morning until half-past five in the afternoon, on one of the busy streets of Boston. The number of men was greater at times, and at times showed some little inclination to stop the plaintiff’s door, which was not serious, but seemed to me proper to be enjoined. The patrol proper at times went further than simple advice, not obtruded beyond the point where the other person was willing to listen, and conduct of that sort is covered by (2) above, but its main purpose was in? aid of the plan held lawful in (1) above. I was satisfied that there was probability of the patrol being continued if not enjoined. I ruled that the patrol, so far as it confined itself to persuasion and giving notice of the strike, was not unlawful, and limited the injunction accordingly.</p> <p>“ There was some evidence of persuasion to break existing contracts. I ruled that this was unlawful, and should be enjoined.</p> <p>“I made the final decree appended hereto. If, on the foregoing facts, it ought to be reversed or modified, such ■ decree is to be entered as the full court may think proper; otherwise, the decree is to stand.”</p> <p>The final decree was as follows: “This cause came on to be heard, and was argued, by counsel; and thereupon, on consideration thereof, it is ordered, adjudged, and decreed that the defendants, and each and every of them, their agents and servants, be restrained and enjoined from interfering with the plaintiff’s business by obstructing or physically interfering with any persons in entering or leaving the plaintiff’s premises numbered 141, 143, 145, 147 North Street in said Boston, or by intimidating, by threats, express or implied, of violence or physical harm to body or property, any person or persons who now are or hereafter may be in the employment of the plaintiff, or desirous of entering the same, from entering or continuing in it, or by in any way hindering, interfering with, or preventing any person or persons who now are in the employment of the plaintiff from continuing therein, so long as they may be bound so to do by lawful contract.”</p> <p>The case was argued at the bar in March, 1896, and after-wards was submitted on briefs to all the judges.</p>

<p>Contract, upon a policy of insurance for $1,000, issued by the defendant on the life of Fred S. Rainger, and payable to the plaintiff, who was his wife. The answer set up, among other defences, false and fraudulent representations by Rainger in his application for insurance. Trial in the Superior Court, before Dewey, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts material to the points decided appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. At the trial in the Superior Court, before Gaskill, J., the jury returned a verdict for the defendant; and thereafter the plaintiff filed a motion, for a new trial as follows:</p> <p>“ Because the said verdict is against the law and is unlawful for that the same was reached and agreed upon by the jury after the jury were discharged by the court, the court having issued its order to the officer in charge of the jury to discharge said jury at eleven o’clock in the afternoon of June 12, 1896, if the jury had not'at that time agreed upon a verdict; that at said time the jury had not so agreed, and continued their deliberations beyond said time; and afterwards, to wit, on or about three o’clock on the following morning, agreed upon said verdict, which was for the defendant; whereby the plaintiff was aggrieved.”</p> <p>At the hearing on the motion, the plaintiff offered no evidence in support thereof, but his attorney stated in argument that he understood the facts as set forth therein. The judge overruled the motion ; and the plaintiff excepted.</p>

<p>Tort, by the administrator of John Y. Brightman, Jr., to recover damages for causing his death. The declaration contained two counts, one under St. 1886, c. 140, and the other at common law. Trial in the Superior Court, before Bond, J., who, at the close of the plaintiff’s evidence, at the defendant’s request, directed a verdict for the defendant; and the plaintiff alleged exceptions in substance as follows.</p> <p>There was evidence tending to show that the plaintiff’s intestate, who was about seven .years and eleven months old, and a schoolmate named Skiff, were playing together on April 5, 1895, at the corner of Bedford and Fourth Streets in New Bedford; that a car drawn by horses and owned and operated by the defendant was seen by the boys to come around the curve on to Bedford Street, and come up Bedford towards Fourth Street, and towards a switch; that when the boys saw it the intestate put his foot on the switch, and the other boy put a stick on the switch, and both pushed it, so it would be in proper position for the car to go around the curve on to Fourth Street in the regular course of the defendant’s business; that when the car, which was in charge of a driver and conductor, reached the switch, the intestate jumped on to the bottom step of the rear platform on the right hand side of the car, and the Skiff boy got on to the bottom step of the rear platform on the other side; that the conductor was on the platform at the time; that as the car rounded the curve the conductor went into the car and to the forward end of it, so as to look south on Fourth Street and see if any other car was coming; that as soon as the car had got wholly around the curve the conductor came out again on to the rear platform, where the boys were standing ; that at the time the boys got on to the steps of the rear platform the horses were walking; that after the car had gone round the curve, the conductor stood upon the rear platform and saw the intestate and the Skiff boy; that he looked towards them, but did not tell them to get off, and he had not asked them not to jump on the car, and he had no talk with them; that the Skiff boy jumped off the step of the rear platform on his side after the car had gone about fifty feet from the curve, and when the horses were still walking; that as he jumped off he called to the intestate and asked him where he was going ; that after the Skiff boy jumped off the horses began to trot; that after the horses began to trot, and after the car had gone about a hundred and twenty-five to a hundred and fifty feet from the place where it was when he got on, the intestate jumped off; that he had been all the time, while riding on the car, on the bottom step of the rear platform, and the conductor, all the time after the car had ■ passed the curve and for the distance of about a hundred and twenty-five feet, upon the rear platform, and had seen the boys and had looked at them; and that when the intestate jumped off he fell on his back and hit his head against the cobble stones in the road, and received the injuries from which, after conscious suffering, he died.</p>

<p>Bill isr equity, to enforce specific performance of a covenant in an agreement. Hearing before Holmes, J., who, at the request of the parties, reported the case for the consideration of the full court; such decree to be entered as equity might require. The facts appear in the opinion.</p>

Petition for a writ of prohibition, to which the respondents demurred. Hearing upon the petition and demurrer before jKnowlton, J., who, at the request of the parties, reserved the questions of law involved for the consideration of the full court. The facts appear in the opinion.

Petition to this court, alleging that, by St. 1875, c. 138, the respondent was incorporated for the purpose of supplying the town of West Springfield with water; that, acting under the authority of the statute, the respondent had taken land, built reservoirs and other suitable works, and laid pipes through the streets of the town, and had furnished and distributed water to a portion of the inhabitants of the town ■/ that the statute, in § 7, provided as follows : “ The town…

<p>Petition, under Pub. Sts. c. 191, to enforce a mechanic’s lien for labor and materials furnished in the plumbing and heating of a house in Fall River. Trial in the Superior Court, before Richardson, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The contract, which was made in March, 1893, was completed prior to August 23, 1893, except furnishing and putting up in the basement a marble back to the washbowl. This back was furnished and put up on December 2,1893, and the statement of lien was filed on December 18, 1893. The reason why the back was not put up sooner was, that, when the bowl which was ordered of the manufacturers came, the back was not sent. It was a part of the bowl and went with it, and hence was a part of the contract. Backs were not kept in stock, as they were usually made to fit the places where bowls were to be put.</p> <p>At the trial the only question raised was whether the statement of lien. was seasonably filed, the petitioners contending that the furnishing and putting up this back was a part of their contract, and the defendants contending that it was not a part of their contract, but was put up at that time to revive the lien. The judge found that the petitioners were bound to put up this marble back as a part of their contract, though their chief reason for doing so in December was to revive their lien, and found that their statement was seasonably filed and their lien established.</p> <p>If the court was warranted in establishing the lien, the finding was to stand; otherwise, the petition was to be dismissed, and judgment entered for the respondents.</p>

<p>Petition for a writ of certiorari, to quash the proceedings of the county commissioners of Middlesex in determining the boundairies of, and locating anew, a certain road in Lexington and Lincoln, under St. 1895, c. 354, § 6.*</p> <p>The petition alleged that, under the provisions of various statutes, the petitioner was authorized to take certain waters, including the waters of Stony Brook in the towns of Waltham and Weston, and also to take and hold lands necessary for the construction and maintenance of waterworks ; that, by virtue of such authority, the petitioner had taken the water of Stony Brook and of its tributaries, including Hobbs Brook in the towns of Lincoln and Lexington; that the petitioner had also taken large areas of land in Waltham, Lincoln, and Lexington, and was constructing its waterworks thereon; that, in the proper construction of such works, it became necessary to change the grade and to discontinue certain parts of roads in Lincoln and Lexington; that thereupon, under the provisions of the statute of 1895, the petitioner petitioned for changes of grades of certain roads, for discontinuance of certain roads or portions thereof, and for determining the boundaries of and locating anew, in substantially its present position, for the purposes above set forth, the road forming the westerly boundary of land taken or acquired by the petitioner for such purposes from the town line between Lincoln and Waltham and the Concord Turnpike; and that thereupon the commissioners proceeded to and did approve the changes of grade of parts of certain roads, discontinued parts of certain ways, ahd undertook to locate anew the road forming the westerly boundary of land so taken or acquired by the petitioner for such purposes prior to May 9,1895, from the town line between Lincoln and Waltham to the Concord Turnpike, all of which proceedings were shown by the records of the commissioners and by a plan of the road undertaken to be located anew, dated August, 1895, and,forming part of such records; and prayed for a writ of certiorari for the following reasons.</p> <p>1. Because, in the proceedings for determining the boundaries and locating anew the road in question, the commissioners had no jurisdiction so to act beyond the point at which a change of grade in the road was necessary, namely, the distance of fifteen hundred feet southerly from Lincoln Street in Lincoln as determined by the commissioners.</p> <p>2. - Because, in the proceedings for determining the boundaries and locating anew the road in question, it appears by the plan that the present boundaries of the road were definite except in such places as breaks appear in the walls or fences, and that in those places alone was there any necessity for a relocation of the boundaries; and that such relocation of boundaries should have been only to the extent of placing the same so as to be substantially in accordance with its present position.</p> <p>3. Because the commissioners materially increased the width of the road.</p> <p>4. Because determining boundaries and locating anew in substantially its present position does not in law include or allow a widening of the road from ten to seventeen or more feet, as the commissioners in their order now undertake.</p> <p>5. Because the commissioners made material changes in the’ position of the road.</p> <p>6. Because the commissioners, in attempting to determine the boundaries and locate anew the road, abandoned wholly the limits of the old road, and laid out a new road over the land acquired by the city for water purposes.</p> <p>7. Because the new location is not substantially in the position of the old road, and the old boundaries have not been determined, but abandoned.</p> <p>8. Because the commissioners, without authority of law, have ordered the petitioner to take a portion of its land already set apart for water purposes for the further purpose of a road.</p> <p>9. Because the commissioners under the statute in question were limited in the locating anew of the road in substantially its present position to the purposes named in the statute, and for such purposes it was not necessary to enlarge the limits or change the position of the road.</p> <p>10. Because the proceedings of the commissioners, in undertaking to locate anew the road forming the westerly boundary of the land already taken by the city for water purposes, are illegal, unjust, contrary to the statute of 1895, and interfere with vested rights of the city.</p> <p>The answer of the respondents, after setting forth the preliminary proceedings following the filing of the petition, stated that they “found, as matter of fact, and adjudicated, that the changes of grade, discontinuances, and locating anew hereinafter specified and set forth in their return were necessary and proper for the purposes set forth in the statute ”; that, after hearing the parties and their evidence and the arguments of counsel thereon, “ they proceeded to find and determine as follows on matters of fact material to the petition:</p> <p>“That the road from Concord Turnpike to the town line between Lincoln and Waltham is one continuous highway throughout; that in many places on the westerly side of the road steep and rocky hills extend into the location, and nearly to the travelled xvay; that the location of the road is no.t of uniform width, and in some places is very narrow; and that the boundaries of the location are irregular and indeterminate, and in many -places entirely missing ; and that the travelled way is not in the centre of the location, as far as could be determined, and is much wider in some placet than in others.</p> <p>“ That twenty-four feet, exclusive of gutters, is a necessary and proper width for the travelled way of the road, which should properly be uniform throughout its entire length; and that fifty feet is necessary and proper for the width of the location, to enable cuts and fills incident to changes in grade of the travelled way to be properly made in a workmanlike manner within the location, and to make the travelled way, when constructed, reasonably safe and convenient throughout its entire length.</p> <p>“ That in many places, and for long distances, the road is adjacent to and might form a part of the embankment of the reservoir proposed to be constructed by the petitioner.</p> <p>“ That in many places the road is below the high-water mark of the proposed reservoir, and that in such places it is necessary and proper, for the purposes set forth in the statute, that the location should be fifty feet in width, and that the travelled way should be in the centre of the location; and that the width and position of the travelled way in such places rendered it necessary and proper that the same width of the location and the same width and position of the travelled way should be established in all other parts of the road throughout its entire length.</p> <p>“ That on the road from the Concord Turnpike extending along the portions where it lies below high-water mark of the reservoir, and from there on to the Waltham and Lincoln boundary line, there are rises and falls that exceed in incline three degrees with the horizon.</p> <p>“ That of the parts of the road to be changed in grade, it is reasonable and proper that the city of Cambridge should keep in repair only that part lying between Concord Turnpike and a point fifteen hundred feet southerly of Lincoln Street'.</p> <p>“ That the locating anew, as set forth in their return, is in substantially the position of the old road.”</p> <p>The return annexed to the answer set out in detail the changes of grade, discontinuance of ways, and a description of the road as located anew. An amendment to the answer stated that the respondents “ found as a matter of fact, and adjudicated, that the relocation and discontinuances prayed for in the petition of the city of Cambridge were of common convenience and necessity.”</p> <p>Hearing before Morton, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>The road in question is about two miles in length, and is from thirty to thirty-three feet wide, except at the end near the Concord Turnpike where for a few hundred feet it is forty feet wide, having been widened there some time prior to the passage of St. 1895, c. 354. It is a country road, not much travelled, with but few houses on it, and is connected at each end with other streets or roads, and is uneven in its grade, varies in its width, and the boundaries are uncertain. The travelled part of the road is from ten to fifteen feet wide. On the westerly side are hills and rocky ledges. The cost of constructing it as ordered by the commissioners would be considerable.</p> <p>The petitioner has been for the past year, and is now, engaged in the construction of a large reservoir or storage basin on land taken by it under St. 1884, c. 256, and lying easterly of the road and bounded by it.</p> <p>Between Concord Turnpike and Lincoln Street the surface of the old road for a distance of about fifteen hundred feet, and also of another portion south of Lincoln Street of about twelve hundred feet in length, are below the water line of the proposed reservoir, so that at each place the road would be overflowed when the reservoir was filled to the proposed height. The proposed water line of the reservoir will be from fifty to three hundred feet from the road at these places.</p> <p>In July and August, 1895, and prior thereto, the petitioner raised the grade of its land, forming a bank for the reservoir.</p> <p>In making this bank small portions of the filling at a few places rolled into the road, but otherwise the boundaries of the old road were not encroached upon. The raising of the grade of the petitioner’s land interfered with the drainage of the road, and rendered it wet and muddy in places, making a ditch of it, of which the reservoir embankment formed one side, and the hill to the west of the road the other. In one or more places where the road was in this condition the petitioner filled it in for some fifteen hundred feet, and raised the grade from one to three or four feet, but not up to the grade fixed by the commissioners, which was about two or three feet higher. It did not clearly appear when this filling on the road was done, but some portion of it took place after the order of the commissioners. It would have had to be done in carrying out the order of the commissioners, and it improved the road, though not carried to the height or done as required by the commissioners.</p> <p>The judge found, if material, that the taking the land of the city for the widening will not injure the remaining land for reservoir purposes; and that the proposed changes in the courses and width of the road as ordered by the commissioners are not necessary for the purpose of construction, maintenance, and preservation of aqueducts, dams, reservoirs, storage basins, or other works now in process of construction under any act authorizing the petitioner to provide a water supply, but the road itself will be greatly improved thereby, and will assist in some places in making a somewhat better embankment for the storage basin.</p>

<p>Sentence in Criminal Case — Constitutional Law — Obtaining Property by Fraud — False Pretences — Law and Fact — Indictment—Variance — Time — Trial — Effect of Release by Defrauded Person — Pendency of Former Indictment as Defence. .</p> <p>The St. 1895, c. 469, authorizing the imposition of sentence in all criminal cases not capital, notwithstanding exceptions or appeal, is constitutional.</p> <p>The St. 1896, c. 504, entitled “ An Act relative to sentences to the state prison,” and prescribing the establishment of a maximum and a minimum term of imprisonment in certain cases, the former to be not longer than the longest term fixed by law for the punishment of the offence, and the latter to be not less than two and one half years, is constitutional, and applies to all sentences passed after the act went into operation.</p> <p>At the trial of an indictment for obtaining property by false pretences, alleging that A., induced by false representations of the defendant as to the receipts of a business' then carried on by him and the length of time he had occupied his place of business, paid the defendant a certain sum for one half interest in the business, whether what the defendant received became partnership funds at once is a question for the jury,</p> <p>Ealse representations by A. that the daily and weekly receipts of a business then carried on by him at a certain shop were sums named, that he had occupied the shop in carrying on the business for a certain period, and that he had no other shop than this except one named, which induced B. to pay A. a certain sum for one half interest in the business, are sufficient to constitute false pretences.</p> <p>If an indictment against A. for obtaining property by false pretences alleges that B., induced by false representations made by A. as to the amount of a business done by him in a certain shop, gave A. a check of the amount and of the value of three hundred and eighty-five dollars for one half interest in the business, and the evidence shaw's that ten dollars of the amount was for that sum in cash handed back by A., this does not constitute a variance which will prevent conviction.</p> <p>At the trial of an indictment for obtaining property by false pretences, alleging that A., induced by false representations of the defendant as to the receipts of a business then carried on by him and the length of time he had occupied his place of business, paid the defendant a certain sun) for one half interest in the business, the time of the alleged representations need not be proved as laid.</p> <p>It is proper to instruct the jury, at the trial of a criminal case, that the defendant is not to be prejudiced because he has not testified.</p> <p>A release of all demands, given by one who has been defrauded by the releasee, does not purge the latter’s crime, but he may be indicted therefor.</p> <p>The pendency of a previous indictment, the verdict upon which has been set aside on the defendant’s motion and the indictment placed on file, is no defence to a subsequent indictment for the same offence.</p>

Tort, for personal injuries occasioned to the plaintiff by reason of an alleged defect in a highway which the defendant town was bound to keep in repair. Writ dated January 12, 1894. At the trial in the Superior Court, before Sheldon, J., the plaintiff testified that she received the injuries at about five o’clock in the afternoon of December 12, 1893, by tripping on the sidewalk on Cabot Street over frozen snow which she thought was from four to six inches high.

<p>Tort, for seducing the plaintiff’s wife and alienating her affections. The answer contained a general denial, and alleged, among other things, that the plaintiff connived at the relations between his wife and the defendant. Writ dated June 26, 1894.</p> <p>At the trial in the Superior Court, before Maynard, J., without a jury, it appeared that the plaintiff and his wife resided in Orange, and the defendant, who was a physician, resided in Northampton; that the plaintiff and his wife were under the defendant’s treatment, and the latter made frequent visits to Orange in the practice of his profession; that in September or October, 1893, the plaintiff began to suspect that the relations between his wife and the defendant were dishonorable, and that the plaintiff took no action to prevent theocontinuance of such relations. The plaintiff testified that on May 11, 1894, and again on June 26,1894, he saw from an adjoining room his wife and the defendant in the act of sexual intercourse. There was evidence tending to show that after June 26, 1894, the plaintiff and his wife lived apart, but that during the months of July, August, and September, 1894, they had frequent meetings and interviews at the plaintiff’s house, and at the house of his wife’s brother and elsewhere in Orange, at some of which they were alone.</p> <p>Albert E. Robbins, the brother of the plaintiff’s wife, testified that the plaintiff and his wife passed the night of August 13, 1894, at the house of the witness; and that they occupied the same room. This was denied by the plaintiff, who testified that he stayed at home that night; and that he did not cohabit with his wife on any occasion after June 26, 1894.</p> <p>The judge found that the plaintiff did not connive at his wife’s acts of adultery with the defendant; that the plaintiff and his wife cohabited together in August, 1894; and found generally for the plaintiff, and assessed damages in the sum of $1,000.</p> <p>The plaintiff moved'that the finding be set aside, and a new trial granted, on the ground of newly discovered evidence, and in support of the motion filed the affidavits of three witnesses, for the purpose of showing that the plaintiff on the evening of August 13, 1894, between the hours of half past seven and half past ten o’clock, was not at the house of his wife’s brother in Orange, but was at his own house in Orange.</p> <p>At the hearing on the motion, the affidavits introduced by the plaintiff were the only evidence offered.</p> <p>The defendant contended that the evidence set forth in the affidavits was cumulative in its nature, and asked the judge to rule “ that the motion and affidavits do not make a case in law for a new trial.”</p> <p>The judge refused so to rule ; but having been influenced in his finding by the testimony of Robbins in reference to the alleged cohabitation of August 13, 1894, and being of opinion that the evidence, as outlined by the affidavits, if given and believed, would materially change the finding, set the finding aside, and ordered a new trial.</p> <p>The. defendant alleged exceptions.</p> <p>The case was argued at the bar in September, 1896, and after-wards was submitted on briefs to all the judges.</p>

<p>Breach of Contract—Damages — Evidence.</p> <p>At the trial of an action for breach of an agreement to perform for a single night a tragedy of Shakespeare in a certain theatre in the city of N., evidence of the plaintiff, based upon his experience in the management of the theatre and knowledge of the cash receipts of similar plays at the theatre under the same auspices, as to what the attendance would have been and what his share of the receipts under the contract in suit would have amounted to, if the defendant had fulfilled his agreement; and also other evidence to the effect that the defendant was an actor of high repute and popularity, especially in rendering the tragedies of Shakespeare; that during the previous year the defendant had played in the theatre to a large house, and that N. was the seat of an institution of learning, attended by many hundred students who largely patronized representations of Shakespearian plays as a means of education, and by their attendance insured a crowded house, are inadmissible to show substantial damages. /</p>

<p>Writ of entry, dated March 10, 1896, to recover a parcel of land in Springfield. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the demandant by Graskill, J., to this court, on appeal, upon agreed facts, in substance as follows.</p> <p>On March 13, 1871, George T. Wason was the owner of the land in question, and on that day conveyed the same by quitclaim deed to his son, George E. W. Wason, reserving the right to occupy the premises for himself and family so long as he should desire so to do; habendum “ to the said George E. W. Wason for the full time of his natural life, and after his death to the heirs of my (George T. Wason’s) body, to have and to hold to their use and behoof forever.” George T. Wason at the time was twenty-five years old, his wife living, and George E. W. Wason his only child. George T. Wason continued to occupy the premises till he died, November 15, 1880, intestate, leaving-only one child and heir of his body, the said George E. W. Wason. George E. W. Wason then took possession of the premises, and enjoyed the rents and profits. In November, 1888, he mortgaged the premises to Jerome W. Hyde, and on May 15, 1889, the mortgage was duly assigned to the tenant. On December 19, 1889, George E. W. Wason, being in possession of the premises, conveyed the same by warranty deed to the tenant, who thereafter had possession and collected the rents and profits. George E. W. Wason died on February 11, 1893, leaving one child, Cecil W. Wason, the demandant. .</p> <p>The case was submitted on briefs to all the judges.</p>

<p>Promissory Note— Corporation—Street Railway— Ultra Vires — Action.</p> <p>The giving of a promissory note by a street railway corporation in pursuance of a vote of its board of directors is not ultra vires.</p> <p>The indorsee of a promissory note made by a street railway corporation in pursuance of a vote of its board of directors, and given in payment of a claim for services to one of the directors, who indorsed it before maturity, for value, and without notice of how it was given or what it was given for, may recover upon it against the corporation.</p>

<p>Adultery — Indictment — Trial — Identity — Name — Variance.</p> <p>It is within the power of the Superior Court to order, in its discretion, that two persons, who have been indicted separately, each for adultery with the other at the same time and place, shall be tried together without their consent.</p> <p>A. was indicted for adultery with B., and B. was indicted separately for adultery with A., the time and place named in each indictment being the same. The two cases were tried together without the consent of the defendants, and a bill of exceptions alleged at the trial stated that “ it did not appear of record, otherwise than from the names, dates, etc. in the indictments, that the adultery charged was between the same persons and at the same time, but the district attorney stated that to be the fact, and it so appeared in evidence.” Held, that it sufficiently appeared that the parties in both instances were the same, and that the offence with which each was charged was committed at the same time and place.</p> <p>That “ W. H. S.” is indicted as “ W. S.” is not a variance which will prevent conviction of the offence charged, if the evidence shows that he is commonly called and as well known by the name used in the indictment as by his true or full name.</p>

<p>Tort, for personal injuries received by the plaintiff while in the employ of the defendants in their sawmill. Trial in the Superior Court, before Dewey, J., who, at the close of the evidence for.the plaintiff, upon the request of the defendants, ruled that the plaintiff was not entitled to recover, and directed the jury to return a verdict for the defendants ; and the plaintiff alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in September, 1896, and after-wards was submitted on briefs to all the judges.</p>

<p>Tort, against James Jolly and William Jolly, copartners as J. and W. Jolly, for personal injuries sustained by the plaintiff while in the employ of the defendants. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions, which appear in' the opinion.</p>

<p>Intoxicating Liquors — Evidence — Local Offence — Statute — Variance.</p> <p>The Pub. Sts. c. 213, § 19, which provide that “An offence committed on the boundary line of two counties, or within one hundred rods of such line, may be alleged to have been committed, and may be prosecuted and punished, in either county,” have the effect, in the case of an indictment for keeping and maintaining a common nuisance, namely, a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors, of extending not only the county line, but also th'e town line, for the purposes of allegation, prosecution, and punishment, into the county and town adjoining.</p>

<p>Complaint, for the illegal keeping and illegal sale of intoxicating liquors, between January 1 and September 26, 1895, at Brockton.</p> <p>At the trial in the Superior Court, before Mason, C. J., there was evidence tending to show that the premises consisted of a house with a large barn attached thereto, the barn facing the street, and standing from sixty to seventy feet distant from it; that between the dates named men were seen to go into the yard and to the barn sober, and come away intoxicated; that the defendant was often in the driveway between the street and the barn, talking to the people as they went to and came from the barn; that on several occasions in January and February, 1895, one Goodall had gone into the barn and found the defendant and one Campbell there, had called for liquor, received it from Campbell, and had paid the money for it to him; that upon the service of a search-warrant on September 25, 1895, liquors were found in the barn, in the harness-room, and under the floor of the shed, or kitchen; that the defendant owned the premises, and lived in the house from January to May, 1895; that between May 1 and September 26 the defendant was living at his summer home at Onset, but came to his house in Brock-ton every two or three weeks on Saturday evenings and remained until Monday morning; and that on Sundays he was about the place talking to the people going to and coming from the barn.</p> <p>The defendant offered Campbell as a witness, who testified that he hired of the defendant two rooms in the second story of the barn, a stall for his horse, with the privilege of keeping his hay, grain, and carriage in the barn, in common with others to whom the defendant also let stall room, and the privilege of using the harness-room that was connected with the barn ; that for these rooms and privileges he was to take care of the defendant’s horse and do the chores about the barn; that this arrangement continued until May 1, when the defendant went to Onset, after which time he paid to the defendant one dollar per week in addition to the work he did; that soon after he took possession of the rooms he began to sell liquor, keeping it in the cellar of the barn, in the barn, the harness-room, under the floor of the shed or kitchen, and under the eaves in the back part of the second story of the barn ; that he made frequent sales in the barn and harness-room; that the defendant knew that he kept liquor on the premises and sold it there, but had no interest or ownership in the liquors, or in the business of selling them; and that the defendant never made any of the sales.</p> <p>The defendant requested the judge to give the following instruction : “ If the jury find that the defendant had no interest in and no ownership of the intoxicating liquors sold by Campbell, they must return a verdict of not guilty under the form of complaint.”</p> <p>The judge refused to give this instruction, instructed the jury fully in accordance with the doctrine laid down in the case of Commonwealth v. Churehill, 136 Mass. 148, and then instructed the jury “ that if they should find that the defendant kept or maintained said premises, and that any part thereof which was not let to or hired by said Campbell was with the assent of the defendant used for the illegal sale or keeping for sale of intoxicating liquors, and that was one of the purposes for which said premises were kept by the defendant, he should be convicted.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>City — New Bedford Fire Department— Validity of Ordinance — Repeal — Contract.</p> <p>Under St. 1852, c. 177, authorizing the city council of New Bedford to establish a fire department for the city, the powers of the council are not exhausted by the adoption of an ordinance fixing the time of election and term of certain officers of the department, but it may subsequently adopt another ordinance repealing the first one, and changing such time and term.</p> <p>A city council, which has elected an officer of the fire department of the city for a term of four years under an ordinance then in force, providing that he may be removed for cause, may during his term repeal such ordinance and elect another person to the office for a term of two years by a new ordinance, providing that the first election under it shall be for two years and the subsequent elections for four years.</p>

Bill in equity, filed in the Superior Court, by John W. Lawton, Louisa J. Lawton, Charles O. Estes, Joseph D. Estes, and Benjamin F. Estes, to compel the defendant to hold certain land which he purchased at a tax sale in 1880 in trust' for the plaintiffs, and to convey to them their respective undivided interests therein.

<p>Contract, for money had and received. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>In April, 1894, the plaintiff, who was a retail liquor dealer in Fall River, borrowed $400 from the defendant, and gave therefor his promissory note payable three months after date at the B. M. C. Durfee Safe Deposit and Trust Company. The note was discounted by the defendant at the First National Bank, and at its maturity, July 23, 1894, was paid at the B. M. C. Durfee Safe Deposit and Trust Company, where the plaintiff had a deposit, by charging it up to the plaintiff’s account. The two banks did business in the same rooms, and over the same counters, in Fall River.</p> <p>The plaintiff testified that on July 18, 1894, a few days before the note matured, he gave the defendant $400 in cash to pay the note, which was then, as both knew, in the bank; that the defendant agreed to take the note out of the bank; that at the same time he gave the defendant a check for $735 as full payment for liquors sold to date; that the defendant did not take up the note; and that the plaintiff took a receipt for the $735, but not for the $400. This action was brought to recover the latter sum.</p> <p>The plaintiff further testified that he did not know that the note had been paid by charging it off to his account until he saw his book after it was balanced on October 1, 1894; that he was sick in August and September, and his book was not balanced from the time he gave the defendant the $400 until October; and that he was not personally at the bank during that time. It was also in evidence that the defendant was in Europe in September and October.</p> <p>The plaintiff also testified that he did not speak to the defendant about not taking up the note until he met him about November 15, the first time after the plaintiff knew that the note had not been taken up.</p> <p>The defendant, who was a wholesale liquor dealer in New York and a member of the firm of S. C. Boehm and Company, consisting of the defendant, his brother and father, denied that he had been paid the $400 in cash. To show that no claim had ever been made prior to November, 1894, the defendant testified that, after the maturity of the note, the plaintiff had in August and September paid him considerable sums of money for goods sold, and had made no claim of any payment of $400. The defendant also offered in evidence letters written by the plaintiff, and answers of the defendant and of the firm thereto, to show that no payment of $400 or any over payment of the note or account had ever been alluded to by the plaintiff or the defendant, or by the firm, prior to November, 1894, one of which letters related to another note for $125; but nothing was said in any of the ■ letters of any trouble about the note for $400. All the letters were read in evidence, without objection on the part of the plaintiff.</p> <p>Another letter written by the firm to the plaintiff, dated October 3, 1894, and making no reference to the $400, was offered by the defendant, and, upon the plaintiff’s objection, was excluded; and the defendant excepted. The plaintiff did not contend that the defendant or his firm made any allusion to the payment of the $400, or any over payment prior to November, 1894.</p> <p>The defendant also testified, among other things, as .follows:</p> <p>“ Q. Did you make any memorandum on the 18th of July as to what took place, so far as the payment of any business transaction between you and the plaintiff? A. Yes, sir.</p> <p>“ Q. Made at the time? A. Yes, sir.</p> <p>“ Q. Have you that memorandum before you ? A. I have.</p> <p>“ Q. Won’t you turn to it? [Witness did so.]</p> <p>“ Q. Is that the memorandum ?</p> <p>“ Q. Whether that was made in the usual course of business ? A. It was.</p> <p>“ Q. Under what circumstances was this memorandum made ? A. At time of issuance of check by the plaintiff.</p> <p>“ Q. Where and how did you happen to make it? A. Invariably, when a customer pays me, I make a memorandum then and there in the small order and account book I carry with me. “ Q. With every customer? A. With every customer without exception.”</p> <p>This book was then shown to the counsel for the plaintiff, who objected to its being offered in evidence, but did not object to its being used to refresh the witness’s memory.</p> <p>• The book was examined by the judge, who ruled that it might be used by the defendant to refresh his memory, but refused to admit it in evidence, on the ground that it was not in its nature a book of entries kept in a shop or store, but was a personal pocket memorandum book, kept in such manner as to be capable of easy manipulation, and was not a book kept “ in the regular course of business,” within the meaning of thé law.</p> <p>The defendant, to prove his statement as to the amount which he received from the plaintiff, offered in evidence a letter written by the defendant to his father and brother, which contained this sentence: “ Collected as follows: M. Riley, Jr., $785 (in full).” The judge, upon the plaintiff’s objection, refused to admit it as substantive evidence ; and the defendant excepted.</p> <p>The plaintiff, to prove that the $400 was paid by him to the defendant, produced as a witness one Paquin, who testified that on July 18, 1894, he saw the plaintiff give the defendant some money, but did not know the' amount; and that he recalled the date, because he worked part of that day for James Murphy and Mrs. Robinson, and left them and went to the plaintiff’s store. ' 1</p> <p>The defendant admitted, and offered evidence to prove, that on May 11, 1894, the plaintiff gave him $379 in money for a check, and contended that it was this money, if any, that Paquin, who was present at that time, saw the plaintiff pay.</p> <p>To confirm Paquin’s testimony that. he worked for James Murphy and Mrs. Robinson part of July 18, and was absent part of the day, the plaintiff introduced as a witness James Murphy, who testified that Paquin, on July 18, worked part of the day, five and one half hours, for the witness and Mrs. Robinson; and that he could not tell just how much of the time he was absent, but thought it was four or five hours. To the admission of this testimony the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract, upon a policy of insurance issued by the defendant on the life of Charles F. Walker, and payable to the plaintiff, who was his wife. The case was submitted to the Superior Court, and, after judgment for the plaintiff in the sum of $67.60, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, at an ice plant in Haverhill, by the alleged negligence of the defendant in permitting the floor of a building to be in an unsafe condition. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.'</p> <p>The plaintiff testified, among other things, as follows: “ On February 27, 1894, while working for the defendant, I was injured. At that time I had been working for him about a week. At the time I was injured the ice had been filled in so that the westerly entrance in the icehouse could not be used. There was a ladder from the bottom of the open shed to the southerly doorway in [an enclosed] shed; there was a walk of boards from the top of the ladder across the shed to the door on the northerly side. These boards rested upon timbers which looked to be large timbers. As one passed through the northerly doorway they came to an open platform on which the ice was run from the sheds, and from that platform there were entrances into the icehouse. The. open platform was about the same height as the shed floor; and the cellar of the shed' was ten or twelve feet deep. My work was stowing ice away in the house, and also working on the platform. The men at work on the platform, after eating their dinner, would go from the stable through the open shed, up the ladder, and follow the walk through the other shed out to the platform. They also used the westerly entrance into the icehouse until it got filled.</p> <p>After eating my dinner T stayed in the stable until the men got ready to go to work and the whistle blew ; and the defendant’s father was underneath the shed cleaning some wagons, and he told us there was a ladder there, and we went up the ladder, some other men and myself. I went up and got off the ladder, and had got a short distance along when I felt something give way, and I fell, and the floor went with me. I fell ten or twelve feet.”</p> <p>On cross-examination, the plaintiff testified as follows : “ The shed was light the day I was hurt; there was no trouble in seeing, and the floor of the shed looked all right. I could n’t see that it was rotten or decayed in any way; it looked perfectly sound and safe. I never made any examination of the floor before I was hurt; I didn’t know that I needed to. The shed tumbled down a short time after I was injured. There was nothing to prevent making an examination. In places the floor was partly uncovered. I was working for the defendant; he didn’t hire me, but Mr. Cushman did. I was paid at the defendant’s office by a Mr. Sylvester. I don’t know who put the ladder there. I had used that way but once before. There were some holes in the floor of the shed. Neither the defendant, Cushman, nor Abbott ever directed us to go up the ladder and through the shed to get at the entrance to the icehouse.”</p> <p>One Slocum, a witness called by the plaintiff, testified that, in February, 1894, he worked for the defendant, driving a team for him and drawing ice from the pond to the house; and that the men in the defendant’s employ used to pass through the shed when going to and from their work. On cross-examinatian, the witness testified that the defendant employed him in person, but Sylvester paid him ; that the shed was light enough, and the stringers looked safe; that there were no holes in the floor; and that there was nothing to prevent a person from making an examination of the floor, but he would have had to go underneath the floor to do so.</p> <p>Two other witnesses called by the plaintiff testified that they were employed at the icehouse in 1894, when the plaintiff was hurt; that they were working for the defendant, but were hired by Cushman and paid by Sylvester; and they corroborated the former witnesses as to the use of the shed by the men in going to and from their work. One of the witnesses also testified that he had never been directed by any one to make use of this way of approach to the icehouse.</p> <p>Charles H. Cushman, called as a witness by the defendant, testified as follows: “ I was formerly engaged in the ice business in Haverhill, and occupied the premises in question. I had a lease dated November 20, 1888, which I took from the Haverhill Aqueduct Company. ■ The open shed I built to keep my carts under cover. I made no use of the other shed at the time the plaintiff was hurt. In February, 1894, I agreed with the defendant to sell the business to him. He said, 11 will give you SI,200 for your interest there, provided that you will go right ahead and fill those houses just the same as you have done previously, and the price of the ice to come out of the $1,200, and have Mr. Abbott decide when the houses are full.’ So I went to work and carried out my part of the agreement as well as I could. I hired the men to do the work, and I kept the time of all the men and all the teams. Mr. Sylvester paid them. I considered that I paid them; it was my money, but it was in Mr. Sylvester’s safe for safe keeping. There was an agreement between the defendant and me for Sylvester to give the money. The shed was in a very dangerous condition, which any one could see, and no orders had been given to use the shed in going to and coming from the work. I do not know who placed the ladder; it was not done at my request, or by my orders. I did n’t invite, request, or order any one to go through the shed at any time or for any purpose.”</p> <p>On cross-examination, the witness testified as follows: “ To the best of my recollection I told Mr. Jones [the plaintiff’s counsel] that I sold out to the defendant about the first day of February, and I told him that at the time the plaintiff was employed I hired the men, but hired them as agent for the defendant. At the same time I sold my business to him, I sold him all the personal property that I had in the ice business, carts, wagons, harnesses, tools, implements, and fixtures. I gave him a bill of sale of it. I paid the rent up to the first day of January, 1894, and paid no rent afterwards. I don’t remember signing any other papers at the time of giving the bill of sale, but I wont say that there were not any others signed. The defendant, at the time of the sale, assumed the rent from January 1, 1894. All the money that was paid to the men in February, 1894, was money that was handed to Mr. Sylvester by the defendant, and all the horses and all the wagons, carts, and harnesses that were used in that business in February, 1894, were the property of the defendant, excepting some that we had to hire outside.”</p> <p>A. Melville Allen, a witness called by the defendant, testified that he was chairman of the board of water commissioners of the city of Haverhill, and during the month of March, 1894, executed an assent to the assignment of the lease from Cushman to the defendant, and delivered it to him or to Cushman.</p> <p>Enos A. Amberg, a witness called by the defendant, testified, in substance, that he had worked around the icehouse for Cushman, Abbott, and the defendant; that in February, 1894, there was no floor at all in the shed, the beams were all decayed, and the shed was light; and that there was no difficulty in ascertaining the condition of the floors and timbers, if any one had wished to.</p> <p>On cross-examination, he testified, in substance, that it might not have been apparent that the upper part of the beams were rotten, but that the bottom of them was rotten, and any one could see it by looking underneath; and that in February, 1894, he worked for the defendant, delivering ice from the icehouse to the customers both before and after the plaintiff was injured.</p> <p>Alonzo Sylvester, called as a witness in behalf of the defendant, testified that Cushman and the defendant stated their agreement to him, and its terms were as testified to by Cushman; that, at the request of both, he acted as agent between them; and that the defendant furnished the money, and he paid the men upon the order of Cushman.</p> <p>John F. Abbott, called as a witness for the defendant, testified that he carried on the ice business at these same icehouses for a number of years; that the defendant employed him to see that Cushman filled the icehouses in a proper manner; that he was very familiar with the condition of the shed, and it was unsafe to use; that no use was made of it at the time of the accident; that there was no walk of boards across it, and it was very easy for any one to see what its condition was; and that the boards and timbers were pretty much all rotten.</p> <p>The defendant testified in his own behalf, corroborating Cushman, Sylvester, and Abbott as to the various agreements between them," and as to the condition of the shed. He also testified that the teams he purchased from Cushman were used in filling the shed, and that, in the final settlement between them, the price of those teams was deducted from the money coming to Cushman ; and further testified as follows: “ Mr. Cushman hired the men engaged in filling the icehouses, I did not; I only hired my teamsters. I assumed the rent from January 1,1894, to the time I bought him out. Cushman was to fill these houses with good merchantable ice, and Abbott was to be the judge; the ice-houses were to be filled satisfactory to Abbott, and I was to accept them.”</p> <p>On cross-examination, he testified that on February 14, 1894, the date of the bill of sale, he paid $600 for the personal property which Cushman conveyed to him; that the property consisted of horses, harnesses, teams, and ice rigging generally, and was then in the stable; that he continued to keep it in the stable, and paid the grain bills, and paid the teamsters, who used that property in carrying on the ice business ; that Abbott was there to see that the ice was placed properly, and the defendant, being busy elsewhere, could not attend to it himself; that he employed one Slocum to drive the defendant’s team in hauling ice from the pond to the icehouses, and the same was true of another teamster whom he employed; that he understood that the teams and property described in the bill of sale were his absolute property on February 14; that he made a settlement with Cushman about March 22, 1894; and that compensation was allowed him for all work done by his teams or men in filling the icehouses. He also testified that he had an assignment in writing of the lease, but afterwards stated that he would not be positive.</p> <p>The lease from the Haverhill Aqueduct Company to Cushman, which was put in evidence, described the property as “ the frame buildings, sheds, and stable.”</p> <p>At the close of the evidence, the defendant requested the judge to give the following rulings: “1. On the whole case the plaintiff is not entitled to recover. 2. There is not sufficient evidence to warrant the jury in returning a verdict for the plaintiff. 3. The condition of the building and the floor through which the plaintiff fell was open and obvious, and the plaintiff must be held to have assumed the risk of the danger arising from such condition,, and cannot recover in this action. 4. There is not sufficient evidence to warrant the jury in finding that the plaintiff was the servant of the defendant, and therefore the plaintiff cannot recover in this action. 5. There is no evidence to warrant the jury in finding that the defendant was a person occupying the shed in which the plaintiff was injured as a tenant having control of it, and being, as to the plaintiff, under the duty of keeping it in repair and in a safe condition, and therefore the plaintiff cannot recover.”</p> <p>The judge refused to give these rulings, and submitted the case to the jury with instructions which were not excepted to. The jury answered questions submitted to them, as follows :</p> <p>“ Q. Who was the employer of the plaintiff? A. William O. Thompson.</p> <p>“ Q. Was the defendant Thompson in the actual possession and control of the shed wherein the plaintiff was injured ? A. Yes.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p> Motion for New Trial on the Ground of newly discovered Evidence. </p> <p>A motion for a new trial on the ground of newly discovered evidence is rightly overruled, if the party moving therefor failed to use proper diligence to obtain the evidence before the trial and before the opposing party was put to the delay and expense of a hearing in this court upon the exceptions.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, in colliding with the horses attached to a hack and driven by the defendant’s servant.</p> <p>At the trial in the Superior Court, before Blodgett, J„ after the evidence was all in, the defendant requested the judge to rule as follows: “1. Upon all the evidence in the case, the plain-</p> <p>tiff is not entitled to recover. 2. There is no evidence in the case that the plaintiff was herself in the exercise of due care. 3. There is no evidence in the case that the plaintiff’s injuries were due to the negligence of the defendant, or of any agent or servant of the defendant.” But the judge refused so to rule.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts sufficiently appear in the opinion.</p>

<p>Information — Jurisdiction in Equity—Public Charity —11 Definite Body capable of Suing”— Unincorporated Religious Society.</p> <p>This court has no jurisdiction in equity of an information by the Attorney General to compel the custodians of a fund to transfer the same to a church, if the church is a definite body, capable of suing for, receiving, holding, and applying for the purpose for which the fund is alleged to have been raised any interest which it has therein.</p>

<p>Executor’s Account — Trust Deed — Consideration — Recording after Grantor’s Death — Power of Executor to sell Land for Payment of Debts.</p> <p>If, when a deed of land is made, there is an existing debt due from the grantor to the grantee, to whom the deed and an instrument of defeasance give the title in trust to sell the land and reimburse himself out of the proceeds, and subsequent advances are made by him to the grantor as contemplated, the conveyance is for a valuable consideration, and is not void as in fraud of creditors.</p> <p>Land conveyed by a deed not recorded until after the death of the grantor is not assets for the payment of his debts due to creditors who have not attached the land during the grantor’s lifetime.</p>

<p>Bill in equity, filed June 6, 1895, to enforce specific performance of a covenant executed by the defendant to his wife, Kitty T. P. Stewart, who died on December 26, 1893, intestate, and of whose estate the plaintiff, who was her brother, was appointed administrator, he having also acquired the rights of the other heirs in her estate.</p> <p>The bill alleged, in substance, that the plaintiff’s intestate, at the time of her death, and for more than two years previously, owned certain lands in this Commonwealth; that she was married to the defendant on or about January 25, 1892; that during the months of December, 1892, and January, 1893, they had their domicil in the State of Nortli Carolina, and differences arose between them, by reason of which they separated; that the conduct of the defendant was such that, by the laws of that State, his wife was entitled to maintain against him a suit for divorce, and to be decreed a suitable allowance for alimony; that she intended and was about to bring such suit, “ when, in order to induce her to forbear from that intention, and for other good and adequate considerations,” the defendant made with her the agreements hereinafter mentioned ; that, relying upon such agreements, she abandoned the divorce proceedings which she had contemplated; that on or about January 4, 1893, she, with the consent of her husband, “ entered herself as a free trader, and acquired the right of contracting and dealing as if she were sole,” by a written instrument, marked A, “ duly executed, proved, and registered pursuant to the laws of North Carolina,” which instrument purported to have been executed on January 4, and registered on January 7, 1893; that “ immediately after” she “ became a free trader, and had acquired the right to contract as if she were sole,” she released and covenanted to release her rights of dower in all the lands which the defendant then owned or might thereafter acquire, by an instrument in writing, marked B, and which recited that it was entered into on January 4, 1893 ; that, “in consideration of such release of dower, and of other good and adequate considerations,” the defendant executed with his wife an instrument marked C, which was dated January 4, 1893, and which, after reciting that the parties were then living separate and apart, and that Mrs. Stewart owned certain lands in North Carolina and Massachusetts, provided as follows:</p> <p>“ And whereas both parties to this contract are desirous that the said Kitty T. Poison Stewart, Jr.,-shall have full, absolute, and complete possession, management, and control of. all the above described property; now, therefore, in. consideration of the above premises, and in consideration of one dollar this day paid the said Henry Stewart, Jr., doth by these presents covenant and agree to surrender, convey, and transfer to said Kitty T. Poison Stewai-t, Jr., and her heirs, all the rights of him, the said Henry Stewart, in and to the lands and property above described, which he may have acquired by reason of the aforesaid marriage; and the said Kitty T. Poison Stewart, Jr., is to have the free and absolute control and possession of all of said property, free and discharged of all the rights, claims, or demands of every nature whatsoever of the said Henry Stewart, Jr.”</p> <p>The bill further alleged that all the agreements were made, and the instruments were executed and delivered, in North Carolina, where the parties had their domicil at the time, and were valid and effectual instruments, according to their intent under the laws of that State; that when the agreements and instruments were made and delivered the defendant owned valuable real estate in North Carolina and in other States, in which his wife had an inchoate right of dower; that the agreement by the wife to release her dower was a full and adequate consideration for the agreement of the defendant to release and„ surrender his marital rights, and the agreement was fully performed by her; that, “ by reason of his agreement and promises in the instrument marked C,” the defendant became bound to release to the heirs of his wife, upon her death, and to the plaintiff as the purchaser from them, all his right and estate in her property; and that, although requested, the defendant had refused to execute such release, or to perform his agreement in any respect, but contends that he is entitled to the same rights in the real estate of his wife as if the agreement had not been made, and threatens to enforce his claim thereto by legal proceedings.</p> <p>The prayer of the bill was that the defendant might be enjoined from asserting against the plaintiff any title to the real estate in question; and that he might be ordered to convey to the plaintiff all his right, title, and interest therein. Extracts from the statutes of North Carolina relating to husband and wife were annexed to the bill, § 1828 of which provides that the wife shall be a free trader from the time of registration; and § 1835 provides that one of the requisites to the validity of a contract between a husband and wife shall be an examination of her separate and apart from him.</p> <p>The defendant demurred to the bill, assigning several grounds therefor. Hearing before Knowlton, J., who, at the request of the parties, reserved the case upon the bill and demurrer for the consideration of the full court.</p>

<p>Bond to dissolve Attachment — “ Final Judgment ” — Statute.</p> <p>The “ final judgment ” mentioned in the condition of a bond given to dissolve an attachment is the final judgment secured by the attachment for which the bond is a substitute, that is, the final judgment in the original action, and not such as may be rendered upon a writ of error.</p>

<p>Personal Injuries — Due Care — Negligence —Assumption of Risk.</p> <p>An employer is not bound to give notice when a trap door in a passageway used by his workmen is open out of working hours to a workman who knows that the trap door is there and likely to be opened from time tQ time.</p>

<p>Tort, at common law, for personal injuries sustained by the plaintiff while in the defendant’s employ as a slubber tender. The declaration alleged that the defendant negligently maintained in the floor of the room where the plaintiff worked a certain trap and opening, of which she was ignorant; and that, while the plaintiff was in the exercise of due care, and walking along the floor in the course of her employment, she fell into the hole caused by opening the trap door and was injured. Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff, for certain purposes connected with her work, had occasion to pass through an alleyway in the defendant’s mill in Fall River. This alleyway was in the basement of the mill, and in a corner farthest from the windows, and was formed by the wall of the room on one side and by a machine called a slubber on the other side. The slubber was about five feet high, and for its whole length along the alley, at the height of about a yard, had revolving machinery near the line of the alley. In this alleyway was the opening in the floor through which the plaintiff fell.</p> <p>The trap door connected with the opening was nearly as wide as the alley, and had long hinges, which projected a little above the floor. It was lifted by an iron ring two inches in diameter, which was fastened by a staple near the outside edge. When opened, the trap door rested up against the wall of the mill, and was held there by a hook, and the hole in the floor was left entirely unguarded. It was about ten or twelve inches in width, and three and a half feet long, and two and a half feet deep. The alley was two feet and eight inches wide. At the bottom of the hole was a revolving shaft, and the trap door was intended to give access to this shaft for the purpose of oiling it. This duty was performed by a workman named Shay, an employee of the defendant.</p> <p>Shay testified that it was his duty to go down into the hole to oil this shaft four or five times a day, and that he did so; that one of these times was between four and five o’clock in the afternoon ; that no other person had a right to open this door; and that the hole was so small that he had to leave the trap door up while he was in there oiling the bearing. Shay was a tall man, large and heavy. The machinery, trap door, hole, and bearing had remained in the same condition for five or six years prior to the accident complained of, and Shay had during that time performed the same duty in the same way. Shay also testified that he neither saw, heard, nor felt the plaintiff while he was down in the hole.</p> <p>David H. Dyer testified, on behalf of the defendant, that he was a mechanical engineer; that his business was the construction of mills and the placing of machinery therein; that he had constructed about thirty new mills and fixed many old ones; that the sole object of the trap door in question was to furnish access to one of the principal bearings of the defendant’s mill for the purpose of oiling the bearing; that it was necessary to oil bearings, and there was no other way of oiling this one than by such a trap door as this; that it would not have been possible to avoid having this trap door where it was, except by reorganizing the whole machinery scheme of the mill; that the trap door itself was in good condition and good repair; and that it was proper and necessary as the mill was organized.</p> <p>On cross-examination, he testified that such a trap door existed in no other mill in Fall River, so far as he knew, and that he was acquainted with nearly all the mills in the citju</p> <p>One Moffatt, the boss carpenter in the defendant’s mill, testified that this was the only hole under a trap door in that mill.</p> <p>The plaintiff testified that she was not a regular employee of the mill, but at the time of the accident had worked there about two or three weeks in place of an employee who was absent; that she was a slubber tender, and her slubber was in line with the slubber above mentioned as forming one side of the alleyway in question, but upon the opposite side of the room; that part of her work was to doff the slubber, which consisted in removing the full bobbins from the slubber and putting on empty ones; that, when the bobbins on the plaintiff’s slubber were nearly full, it was her duty to pass through the alleyway and wheel in a box which contained empty bobbins; that this box was three and one half by two feet in size and ran on four small wheels; that she removed the empty bobbins from the box, placed the full bobbins from the slubber in it, put the empty bobbins on the slubber, and then wheeled the box with the full bobbins into another room, passing through the alleyway; that she was a married woman about thirty-five years of age, was an experienced slubber tender, and had worked in other mills off and on for about twenty-one years; that she was thus walking along the alley at about half past four o’clock in the afternoon, when she fell into the above mentioned hole, and injured her foot by striking against something therein ; that she then went back and sat down on a window seat, and saw Shay coming out of the hole, but that she did not see or feel him in the hole; that as she was walking along the alley prior to the accident she was paying attention to the revolving machinery on the adjoining slubber in order to avoid getting caught; that she did not know the trap door and hole were there, or that Shay was in the hole, or that he ever went into it; and that there was no artificial light there.</p> <p>On cross-examination, the plaintiff testified that she spent most of her time in that alley; that while she was in the alley she was sometimes fixing bad work or going to get her bobbins; and that she had to go to get her bobbins about twelve times a day.</p> <p>Annie Hurley, who worked on the slubber next to the plaintiff’s, testified that, when this trap door was open, she had stood in the alley "in front of the plaintiff’s slubber, and had no difficulty in seeing the trap door ; that, some time prior to the day of the plaintiff’s accident, the witness, in passing along the alley, had fallen into this same hole when the trap door was open, and Shay was in the hole oiling the machinery, and had landed on his back; that she knew about the hole; and that she happened to fall into it because there was a row going on in the mill tower, and she was running out to see it.</p> <p>The defendant duly requested the judge to rule that there was no evidence of any defect in the ways, works, or machinery of the defendant which entitled the plaintiff to recover. The counsel for the plaintiff said they did not claim that there was any such defect, and the request was thereupon withdrawn.</p> <p>At the close of the evidence the defendant requested the judge to rule as follows:</p> <p>“ 1. On the whole evidence the plaintiff cannot recover. 2. In the absence of evidence showing a better and safer way of oiling this bearing, it was not negligence on the part of the defendant to maintain the trap door as it was at the time of the accident.”</p> <p>The judge refused so to rule; and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in October, 1896, and after-wards was submitted on briefs to all the judges.</p>

<p>Liability of Stockholder in Foreign Corporation — Action—Pleading—Statute of Limitations ■—Damages.</p> <p>An action cannot be maintained to enforce the liability of a stockholder in a foreign corporation, where there is no allegation that the liability is contractual, nor that it has been so construed by the courts of the foreign State, and where there are no allegations from which it can be seen that no injustice to others will be done by entertaining th.e action.</p> <p>No recovery can be had under a supplemental declaration, which sets up as the foundation of the plaintiffs right to recover an alleged rescission, made after the commencement of the action, of the contract upon which the action itself is founded.</p> <p>At the trial of an action, the declaration in which cqntains three counts, one for breach of the defendant’s undertaking to invest the plaintiff’s money safely, one for negligence in putting his money as his agent into worthless securities, and one for fraudulent representations whereby the plaintiff was induced to allow the defendant to place his money in the investments mentioned, if it appears that all of the investments except the last one were made more than six years before the date of the writ, and the defendant contends that the cause of action on account of all the transactions except the last is barred by the statute of limitations, it is error for the judge to withdraw the statute from the consideration of the jury.</p> <p>In an action upon counts for breach of a contract to invest the plaintiff’s money . safely, for negligence in such investment, and for fraudulent representations as to the investment, the measure of damages is the difference in value between the securities delivered and safe securities; and the time as to which damages are to be assessed under the first two counts is the time when the plaintiff acquired the securities; and the same rule is to be followed as to the third count, unless facts appear which warrant the application of a different rule, in which event the rule must depend upon the facts disclosed.</p>

<p>Beneficiary Association — By-Law — Statute — Designation of Beneficiary — Disposition of Fund.</p> <p>A policy issued by a beneficiary association, organized under St. 1890, c. 421, provided that the insured member agreed to be bound by the by-laws of the association, one of which was, that, if the member “ leaves no such designated parties • alive,” the fund should be paid to the widow, children, or parents in specified classes. Section 21 of the statute provided that all policies which contained any reference to the by-laws should contain or have attached to the policy a copy of the portions of the by-laws referred to, and unless so attached and accompanying the policy no such by-law should be received in evidence in any controversy between the parties interested in the policy. No copy of the bylaw above mentioned was contained in, attached to, or accompanied the policy, which stipulated that the insurance should he paid to A., “if living, unless such member shall have designated that it be otherwise paid, in which case it shall be paid to the person or persons named in his last designation as recorded upon the hooks of the . . . association.” The application contained this clause : “I direct that after my decease the moneys to which I may be entitled as such member shall be paid to the person or persons now of record, as my last designation, on the books of said association.” The person so designated on the books was A., who had been the wife of the insured, but had died before the application and policy were made, leaving one child, who was the only child of herself and the insured. The latter also left a widow. Held, in an action on the policy, that the by-law could not be considered a part of the policy, nor received in evidence; and that, as no beneficiary was sufficiently designated, the administrator of the estate of the insured was entitled to the fund.</p>

<p>Bill in equity, filed in the Superior Court on July 30,1892, originally against Samuel F. Otis and the Springfield Safe Deposit and Trust Company, to recover a fund of $10,000 deposited by Otis with the defendant corporation, and alleged to belong to the plaintiff. An injunction against the withdrawal or transfer of the fund was issued on the bill. The bill was amended on April 26, 1895, by joining Ellen Fassaur, Dora Collins, Etta Fisher, and Rosella D. Denney, as parties defendant. The case was referred to a master, who made his report, to which exceptions were taken by the plaintiff. Hearing before Graskill, J., who made certain findings, and entered a decree for the plaintiff against the individual defendants; and they appealed to this court. The facts sufficiently appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiffs by reason of the alleged want of a railing at the side of a highway in the defendant town. Trial in the Superior Court, before Sheldon, J., who reported the cases for the determination of this court, in substance as follows.</p> <p>There was evidence tending to show that at the place where the accident happened there was a good hard smooth gravel road-bed, thirty-seven feet wide, from the inner edge of the sidewalk; that the sidewalk on the west side of the street was between seven and eight feet wide, and made of gravel or coal ashes, slightly raised • above the gutter; that between the roadbed and sidewalk there was no curbing, but a little bank of grass had grown up between the travelled portion of the sidewalk and the gutter; that west of the west line of that sidewalk, and at a distance therefrom varying from nearly two feet to eight feet, was a cellar hole upon land of one Nathan Willis, from three and one half feet to four feet four inches deep, measuring from the level of the sidewalk; that the surface of the land from the west line of the sidewalk to said cellar hole was grassed over, and in places was slightly higher than the sidewalk, perhaps an inch or two; and that the place where the accident occurred was about two hundred feet from and north of Central Square, which is the business centre of . the town, the buildings in the vicinity of the square, especially on the north side, being compact; that on January 22, 1894, four of the plaintiffs, who were females, were riding in a carriage drawn by a horse, which horse and carriage were the property of the male plaintiff, along said street, travelling north; that the horse was trotting along near the middle part of the street wrought for team travel, and nearly opposite the cellar hole; that another carriage passed them at that moment, and just as it passed the driver struck his horse with a whip; that immediately the plaintiffs’ horse began to back, and backed rapidly into this cellar hole, at a place about four feet from the street line, being a steep slope; that when the female plaintiffs were assisted from the team, the rear end of the carriage was in the hole, the forward wheels just west of the outside edge of the sidewalk, the horse standing across the sidewalk, and the driver, Mrs. Alice L. Tisdale, holding the horse with the reins tight; and that the female plaintiffs were injured, and the carriage and horse damaged. There was also evidence, tending to show that there was no fence or other barrier along the westerly line of the sidewalk against the cellar hole.</p> <p>The defendant asked the judge to direct a verdict in its favor, but the judge refused so to do.</p> <p>The cases were submitted to the jury under instructions not objected to, and the jury returned a verdict in favor of each plaintiff. If there was any evidence upon which the jury could find that the defendant should have provided a fence or a barrier at the place, judgment was to be entered on the verdicts; but if the defendant, in the exercise of reasonable care, was not required to erect or maintain such fence or barrier, judgment was to be entered for the defendant in each case.</p> <p>The cases were submitted on briefs to all the judges.</p>

<p>Petition for partition of two parcels of real estate, one in Marblehead, and the other known as Baker’s Island, in Salem harbor. The petitioner claimed to be seised in fee simple of one undivided sixth part of both parcels. Trial in the Superior Court, before Braley, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The respondents claimed exclusive title to the property under the second clause of the will of Francis Courtis. The second and third clauses of the will are as follows :</p> <p>“ Second. All the rest and residue of my estate of every name and nature that I shall die seised of and possessed, or to which I shall be entitled at" the time of my decease, wherever and however the same may be situated, I do give, devise, and bequeath the same and every part and portion thereof to my beloved wife Jane Courtis and my two children Francis Mason Courtis and Robert Harris Courtis. To have and to hold the same in equal portions to them, my said wife Jane Courtis, and my said two children Francis Mason Courtis and Robert Harris Courtis, and their heirs and assigns forever.</p> <p>“ Third. As to my two grandchildren, Rebecca Coombs Courtis and Francis Joshua Courtis, children of my deceased son, Francis Courtis, they already have some little property of their own, and I leave them my best wishes for their spiritual and temporal hap-pin ess, but I do not feel it my duty to make any provision for them in this my last will and testament.”</p> <p>The petitioner claimed a share in the property as an heir at law of the testator, on the ground that, Robert Harris Courtis having died without issue during the life of the testator, the interest so devised to him lapsed. Francis Courtis, Jr., the son and only child of the testator by his first wife, died on December 8, 1845, intestate, leaving as his only issue Francis Joshua Courtis and Rebecca Coombs Courtis, now Rebecca Coombs Frost, the petitioner'. Elsie Courtis, the testator’s first wife, died about the year 1848. Robert Harris Courtis died before the testator, on December 15,1868, intestate, without issue and unmarried. Francis Courtis, the testator, died on June 15, 1870. Francis Joshua Courtis died on September 30,1870, intestate, without issue, unmarried, and leaving the petitioner as his sole heir at law. Francis Mason Courtis died in 1883, intestate, without issue and unmarried. Nathan R. Morse, one of the respondents, claimed by virtue of a conveyance from one of the devisees who survived the testator. Jane Courtis also claimed title by prescription. ■</p> <p>The judge ruled “ that the devise in the second clause of the will was to the devisees therein named as a class, and not per capita, and that the interest devised to Robert Harris Courtis in' the said clause did not lapse upon his death before the testator’s death, but went to the survivors named in the second clause,” and directed.a verdict for the respondent Courtis. If the ruling was right, judgment was to be entered on the verdict; otherwise, a new trial was to be granted to try the issue of title by prescription of Jane Courtis.</p> <p>The case was argued at the bar in January, 1897, and after-wards was submitted on briefs to all the judges.</p>

Petition to establish the truth of exceptions alleged by George Lemery at the trial of an action of tort for personal injuries brought by him against the Boston and Maine Railroad, and disallowed by Lilley, J., who presided at the trial in the Superior Court. The petition was referred to a commissioner, who made his report. The facts appear in the opinion. The case was argued at the bar in November, 1896, and after-wards was submitted on briefs to all the judges.

<p>City — Injury to Properly by Water from Server — Action—Contributory Wrong—Waiver.</p> <p>The fact that a city on several occasions pumped water out of a person’s cellar which had overflowed from a sewer will not justify a finding, in an action against the city for damages caused by such overflow, that a breach by him of the ordinances relating to sewers, in connecting his premises with the sewer, had been waived by the city.</p> <p>A city is not liable to an action for injury occasioned to the plaintiff’s property by the overflow of water from a sewer, if the evidence tends to show no damage which'was not caused in part by the connection of his premises with the sewer, made and maintained by him contrary to the city ordinances.</p>

<p>Contract, for breach of the covenants in a deed from the .defendant to the plaintiff of land in Worcester. After the former decision, reported 161 Mass. 467, the case was tried in the Superior Court, before Bishop, J., who refused to give certain rulings requested by the plaintiff.</p> <p>The jury returned a verdict for the plaintiff; and he alleged exceptions-. The facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while engaged in the defendants’ employ in shovelling coal into a tub in the hold of a coal barge lying next to the defendants’ wharf in Fall River. The declaration was in five counts, two at common law, and three under the employers’ liability act, St. 1887, c. 270. At the trial in the Superior Court, before Bishop, J., it appeared that the tub into which the plaintiff was shovel-ling coal was to be hoisted out of the hold when filled, and that, while he was engaged in filling it, another tub filled with coal, which had just been hoisted out of the same barge, struck against a projecting bulkhead or apron over the defendants’ wharf, and emptied itself of its contents, which fell upon the plaintiff’s head, and caused the injuries complained of. At the close of the evidence for the plaintiff, the judge, at the request of the defendants, directed a verdict for the defendants ; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Bill in equity, filed in the Superior Court on February 7, 1895*, by the heirs at law of Henry Ogden, against Margaret McHugh and the Union Savings Bank, to recover certain real estate alleged to have been acquired by the first named defendant through conveyance from Ogden by fraud and mistake. Hearing before Richardson, J., who found the following facts.

<p>The first case was an appeal by the administrator with the will annexed of the estate of Henry P. Nichols, surety upon the bond of Charles S. Nichols, trustee under "the will of Isaac B. Woodbury, from a decree of the Probate Court dismissing his petition to open the trustee’s final account for the correction of an alleged error therein. Hearing before Morton, J., who found for the appellees, and at the request of the parties reserved the case for the determination of the full court. The facts appear in the opinion.</p> <p>The second case was an action on the probate bond founded on the failure of the trustee to pay over the balance found due by the Probate Court on his accounts. The case, having been referred to a master, to whose report the defendant took exceptions, was heard before Allen, J., who reserved the questions of law for the determination of the full court. The facts appear in the opinion.</p>

<p>Larceny in Building — Receiving Stolen Goods— Evidence—• Guilty Knowledge— Trial — Allegation of Ownership in Indictment.</p> <p>Errors in the admission of evidence affecting only counts of an indictment upon which the defendant'was acquitted cannot be availed of as grounds for a new trial after conviction on other counts.</p> <p>At the trial of an indictment against A. and B. for larceny in shops and receiving stolen goods, upon which A. alone is tried, a searcli of B.’s house and the discovery of a large amount of property there such as is not ordinarily found in a dwelling-house, and the comparison of articles found there with other articles found in A.’s house, are facts competent to be put in evidence against the latter in connection with other evidence in the case.</p> <p>A., who was indicted jointly with B. for larceny in shops and receiving stolen goods, said of goods found in his possession that he obtained them from B. and helped him to take care of them in his employer’s storehouse; that B. would never tell him where he got them, except that he “ stood in with clerks,” whose names he would not tell; that he said that the goods so found were given him by B. for carrying goods to B.’s house from time to time in packages; that he was frequently in the company of B., who was a police officer, on the street evenings, and on one occasion after midnight was found by another officer on the street pushing a handcart, on which was a part of the property described in the indictment; and that B. quickly appeared, and, While the two officers were examining the property, the defendant, upon a hint from B., ran away/ the officers pursuing him in different directions. Held, that this evidence would warrant a finding that the defendant was receiving from B. stolen property, believing it to have been stolen.</p> <p>The defendant is not entitled to have the jury instructed, at the trial of himself alone upon an indictment against him and B. for larceny and receiving stolen goods, that the finding of large quantities of goods in B.’s possession could not be considered against the defendant " unless and until it was affirmatively shown that he participated with B. at some time or place, having guilty knowledge and intent, either in the act of larceny, or of receiving such goods.”</p> <p>Where a trial proceeds against one of two persons indicted jointly for larceny and receiving stolen goods, he may be convicted of the whole or of any part of the offence charged. ,</p> <p>That property found in the possession of a person charged with larceny in a shop and receiving stolen goods is similar to that kept for sale by the person alleged in the indictment to be the owner, without other corroborating circumstances, is not enough to warrant the jury in finding the allegation of ownership to he proved.</p>

<p>Will — Trust — Termination.</p> <p>It seems, that, although the interests created by will under a trust have all vested, and all the parties interested request that the trust be terminated, and the trustee consents, the termination will not be decreed if none of the provisions are repugnant to law or contrary to public policy, and the objects and purposes of the trust have not been accomplished, and their accomplishment has not been made impossible.</p>

<p>License to sell Intoxicating Liquors — Statute — Constitutional Law — Mandamus.</p> <p>The St. 1888, c. 840, entitled “ An Act to limit the number of places licensed for the sale of intoxicating liquors,” is in conflict neither with the Constitution of Massachusetts, Declaration of Rights, art. 6, nor with Art. XIV. sect. 1 of the Amendments to the Constitution of the United States.</p>

<p>Contract, by the administratrix of the estate of William E. Wynn, to recover the legacy given by the forty-first paragraph of the will of Samuel E. Sawyer, late of Gloucester.</p> <p>The testator died on December 15, 1889. The paragraph in question is as follows: “ 41. I give and bequeath to my executors and trustees, the survivors and survivor of them, the sum of four thousand dollars, to be safely invested, and the income only paid over semiannually to my coachman, William Wynn of Gloucester.” The will contained a residuary clause. The plaintiff’s intestate died on June 6,1892, and is the William Wynn named above.</p> <p>The defendants demurred to the declaration, assigning as ground therefor'that the intestate took only the income for life in the fund in question. In the Superior Court, Braley, J. sustained the demurrer, and ordered judgment for the defendants; and the plaintiff appealed to this court.</p>

Petition, filed January 25,1894, as amended, under St. 1889, c. 442, against Mary L. Walker, W. Eliot Fette, Frances W. Simpson, Ralph B. Williams, and Henry P. Bowditch, alleging that the petitioner was in possession of and seised in fee simple of a parcel of land, with the buildings thereon, situated on Chestnut Street in Boston, and subject to the conditions touching the east wall of the estate set forth in a covenant made between Cornelius Coolidge and Titus Welles and…

<p>Contract, by a member of the defendant society, to recover benefits claimed to be due to the plaintiff under its by-laws. At the trial in the Superior Court, before Lille.y, J., without a jury, the defendant asked the judge to rule that, upon the evidence, the plaintiff could not recover. The judge refused so to rule; found for the plaintiff for the amount claimed; and, by agreement of the parties, reported the case for the determination of this court. If the ruling was right and the finding was warranted, judgment was to be entered thereon ; otherwise judgment for the defendant. The facts appear in the opinion.</p>

<p> Ejectment for Recooery of Unexpired Term of Lease. </p> <p>An action of ejectment for the recovery of the unexpired term of a lease can only be maintained by one who has the right of possession.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, on May 18,1894, by a defect in a platform covering the roof of a tenement house on Garfield Place, in Boston. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It was admitted that the defendant was the owner of the building in question, and that one Parker was the defendant’s agent for the letting and care of the premises.</p> <p>Two photographs, taken on May 26, 1894, and two pieces of board, identified as the pieces taken after the accident from the hole into which the plaintiff fell, were put in evidence.</p> <p>The plaintiff’s evidence showed that she was a nurse by occupation, and since May, 1893, when not engaged, boarded with a Mrs. Pray, who occupied, as a tenant of the defendant, the tenement on the third floor of the building in question; that the building was four stories high, and contained four tenements, and there were common hallways and stairways running up to the fourth floor, and a step ladder leading from the fourth floor through a skylight, of which one side lifted up on to the roof; that at the time of hiring by Mrs. Pray, Parker told her that she could use the roof for drying clothes and other purposes in common with other tenants; that she never had any conversation with him afterwards about the roof; that once, when she was beating a carpet on the roof, he saw her, and made no objection; that the platform covering the roof consisted of joists about three or four inches high laid three or four feet apart, running from the front to the rear of the building, and boards of about an inch in thickness, running in the opposite direction, nailed to the joists ; that the roof was fenced around on its four sides with a railing supported by posts; and that lines were stretched for drying clothes across this roof lengthwise of the block.</p> <p>The plaintiff testified that before the accident she had been upon the _ roof only a few times, and never noticed any unsafe condition of the platform; that there was no hole there when she went up that morning; that on the day of the accident she was getting ready to go away and work, and Mrs. Pray was not very well and was cleaning her rooms; that the witness asked her if there was anything she could do to help her before she-went away; that Mrs. Pray replied, “ You are younger than I am, and if you will take my rugs on to the roof and shake them for me, I will be greatly obliged ”; that she took them up on to the roof and shook them, and, as fast as she finished them, threw them down the skylight on to the floor below, and in doing so had to walk around the skylight, and did not see any hole in the platform; and that, while she was beating the last rug, which hung upon a line near the skylight, and was pulling it off the line, standing with her back towards the skylight, she stepped backwards one step without looking, and fell, and her left foot went through the board, and she received the injuries complained of.</p> <p>William H. Tin son "testified that he occupied the top flat of the house, just over the flat occupied by Mrs. Praythat the different floors were occupied by different families; that he had occupied that flat since June, 1893; that he was in the habit of going upon the roof, in good weather, every night, for airing and to smoke a cigar; that the boards of the platform looked well seasoned by the weather and sun, but he considered them to be in good fair condition up to the time of the accident; that he hired his flat of Parker, and in that hiring he was given the privilege of using the roof to hang clothes and for other purposes for which a yard would be used, in common with the other tenants in the building, and his family used the roof for these purposes, and that the other tenants in the building used it for similar purposes; that, to his knowledge, while he lived there before the accident, there was no appearance that any repairs had been made upon the platform; that, within a month after the accident, Parker shut off access to the roof through the skylight by locking it up with a padlock; that on the day of the accident, about noon, he was in his apartment, and heard a noise like something falling on the roof, and immediately went up there and found the plaintiff lying unconscious, and he and his son carried her down to Mrs. Pray’s apartment; that he did not notice any hole there at that time, and on the same day, about five o’clock, he went on to the roof, and observed the hole in the platform shown in one of the photographs, which was a jagged hole broken in the planking; that that hole was not there upon his Visit to the roof a day or two before, and on his visit after the accident it then had the same appearance as shown in the photograph; that he subsequently took out of the hole the broken pieces of board shown in evidence; and that Parker was about the premises almost every day, and he had seen him on the roof when clothes were hung up there.</p> <p>M. Luella Tirnson testified that she was the daughter of Mrs. Pray, and the wife of William H. Timson; that she was the first one to go upon the roof at the time of the accident.to the plaintiff; that she had quite frequently been up to the roof before the accident, and was there within a day or two before the accident, and never noticed any hole in the roof; that she went upon the roof the same day after the accident; that she then saw a hole just back of the skylight, and its appearance was as though it had been broken through ; and that she had no knowledge that, from July, 1893, to the time of the accident, any repairs had been made upon the roof.</p> <p>Emily S. Pray testified that she hired of Parker the tenement in question in September, 1892, and moved in immediately after hiring, and lived there with her family until July, 1894; that she saw Parker about the premises almost every day, and paid her rent to him; that while she lived there she had no knowledge of any repairs being made upon the platform of the roof; that at the time of the hiring of her tenement, and in that hiring, she was allowed the use of the roof for her clothes and other purposes; and that she used it for cleaning her rugs and hanging her clothes, in common with the other tenants of the building.</p> <p>At the close of the plaintiff’s evidence, the judge ruled that it was insufficient to warrant a verdict for the plaintiff; and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Expenditure by Widow of Husband’s Money for a Burial. Lot. </p> <p>An administrator cannot recover of the widow of an intestate money of his which she has expended for a burial lot for his remains and for the perpetual care of tile lot, if the court finds that the expenditure was made in good faith, and was under the circumstances reasonable and proper.</p>

<p>Contract, to recover SI,000 upon the following agreement, signed by the defendant: “ I will pay the bill for kiln built at Revere, but will not pay the |250 for right to use it. If I conclude to build more of your kilns I will pay you SI,000 for the right to use them providing you give me a plan of your kilns plain enough to work by.”</p> <p>The answer was a general denial, and the allegation that the first kiln built did not prove to be as represented by the plaintiff, and an agreement that the second kiln should be built by the defendant as a test of the merits of the plaintiff’s invention.</p> <p>At the trial in the Superior Court, before Bishop, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion, and in a note by the reporter.</p>

<p>Petition for a jury to assess the damages for the taking of the petitioner’s land by the respondent city for a public street. At the trial in the Superior Court, before Dunbar, J., the jury returned a verdict for the petitioner ; and the respondent alleged exceptions, which appear in the opinion.</p>

<p>Petition, filed in September, 1895, for the review of a judgment for S3,563.25 and costs, obtained by the respondent against the petitioner by default, in August, 1895, in an action in the Superior Court. Hearing before Fessenden, J., who refused to rule as requested by the petitioner, and denied the petition; and the petitioner alleged exceptions. The facts appear in the opinion.</p>

<p>Contract, upon a promissory note for $2,500, dated February 2, 1893, payable four months after date to the order of the maker at the plaintiff bank, signed by C. P. Walker, and purporting to be indorsed by the defendant and by H. S. Walker. The answer denied the genuineness of the defendant’s signature. Trial in the Superior Court, without a jury, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>H. J. Jaquith, called as a witness for the plaintiff, testified that he was president of the plaintiff bank during June, 1893 ; that the note in suit was at that time held by the bank; that the note fell due on June 5, 1893, and was protested; that a letter was written by one Wentworth, cashier of the bank, to the defendant, on June 6, demanding payment of the note; that on the next morning, June 7, the defendant called at the bank in response to the letter; that the cashier was at his desk and the witness was inside of the rail talking with him about bank matters; that the defendant said, “ I came to see that note of Walker’s that you notified me of protest, — I would like to look at it that Wentworth handed the note to the defendant, who examined it, threw it down on the cashier’s desk, and turned to leave without saying a word; that Wentworth then spoke and said, “ That is all right, is n’t it ? ” and the defendant replied, “ That note will be paid ” ; that they waited for payment until after the close of banking on that day, and, not having received the payment which they understood would be made, Wentworth wrote a letter to the defendant, notifying him of a payment of $500 on the note, and demanding payment of the balance; that the next morning the defendant came in with a gentleman whom he introduced as H. S. Walker, and said he wanted to look at that note again, and it was again shown to him; that Wentworth and the witness were present at that inter-Ariew; that after examining the note Walker said, “ That is n’t my signature,” and the defendant repeated substantially the same statement, “ The signature isn’t mine”; that the witness said to them, “ You know what that means, — then it is a forgery,” and the defendant said, “ Yes, that is what I mean ” ; that Wentworth inquired of them if they could not arrange to take it up and save the disgrace that would fall on H. S. Walker, who was the brother of the maker of the note, but the reply was made that they had settled up a number of his misdeeds, that he had cost them a great deal of money, that there were a number of other forged notes that were out, that they did not care to do anything about it, and that the matter must rest with the bank ; that Wentworth inquired of the defendant why he had changed his lines from the previous day when he led him to believe he would pay it, and whether it was because he had found there was other forged paper out; that, later in the day, C. P. Walker, the maker of the note, called in and was arrested for forgery; that immediately after C. P. Walker had been removed by the officers, the witness had the property in his store attached and a keeper put in ; that, after Walker was removed from the bank, the witness had a conversation with the defendant, in which the latter said he recognized the signature as a forgery as soon as he saw it; that it was not at all like his own signature, and that he went out to other banks to see if he could find out how much more of the forged paper bearing his indorsement was out; that he then saw Walker, who told him that there were a number of pieces of paper with his forged indorsement upon them; that Walker was indebted to him, and he was Walker’s bondsman in a criminal action against him for embezzlement; and that he had lost all he intended to by him.</p> <p>The witness further testified : “ The bank counsel brought a notice which was shown to me, signed by counsel for Walker, demanding the release of the property held on attachment, as being the property of C. P. Walker’s brother. After examination into the circumstances, I directed the withdrawal of the keeper and the release of the property attached.”</p> <p>On cross-examination, the witness testified that the exact words that the defendant used in their first interview were, “ That note will be paid,” or “ The note will be paid ”; that he said only those words, and left the bank; that he looked at the paper, turned on his heel as the question was asked, and left without further words; that the second conversation, with the defendant and H. S. Walker, lasted for fifteen minutes ; that when the defendant called the first time he was there only two or three minutes; that his appearance at that interview indicated that the note was news to him ; that the witness supposed from his appearance that he liad “ got stuck ” on an accommodation indorsement; and that he supposed the note would be taken care of.</p> <p>Andrew Houghton testified, for the plaintiff, that on June 8, 1893, he, as inspector of police, arrested Charles P. Walker for forgery of the note in suit at the plaintiff bank; that after that he went down to Walker’s place and met the defendant on the sidewalk; and that “ he asked me what I had done with him, and I said I had locked him up. I said, ‘ It is a serious matter,’ and he said, 11 don’t know about that. That matter will be attended to.’ ”</p> <p>On cross-examination, he testified that the defendant did not, in any way, give him to understand that he had authorized Walker to sign his name on that note; and that “he said it would be taken care of, — that is all.”</p> <p>John B. Fitzpatrick testified, for the plaintiff, that he made an attachment in accordance with a return upon a writ dated June 9, 1893, in an action of contract between the Traders’ National Bank and Charles P. Walker upon the note in suit in this action; and that on such writ he attached a small safe, a desk, an ice-chest, some papers and documents which were in the safe, and $5.53 in money, as the property of Walker, at his place of business,</p> <p>Ralph S. Wentworth testified, for the plaintiff, that the note in suit was at the plaintiff bank in June, 1893, when he was the' cashier of the bank; that the note had been discounted by the bank for full value; that it was due June 5, 1893, and was protested on that day for non-payment; that the defendant called at the bank for the first time regarding the note on the morning of June 7, in response to a letter, and asked to see the note, and the witness handed it to him ; that he took it and looked at it, and the witness told him he should have to look to him for payment; that he stated to the witness, “If I would hold the note until later in the day, and give him an opportunity to see C. P. Walker and see if some arrangement could hot be made to take it up, and if C. P. Walker did not pay me he would”; that as the defendant did not appear as he stated he would, the witness wrote a letter demanding payment ; that he came on the following morning, June 8, and asked to see the note again; that the witness handed it to him, and he stated that the indorsement was a forgery; that that was the first intimation the witness had that it was a forgery ; and that he told him that he was very much surprised that he did not so state to him in the first place.</p> <p>James G. Walker testified, for the plaintiff, that he was the brother of Charles P. Walker; that he had a bill of sale from Charles P. Walker to himself, which was made out in lead pencil, in the Tombs, on the night of June 8; and that it contained the fixtures of the store, a safe and desk, some scales and benches, and an ice-chest.</p> <p>■ The defendant testified that he had known Charles P.. Walker for fifteen years, and had had business dealings with him ; that he first saw the note in suit on the morning of June 6, at the plaintiff bank ; that there was no payment on it at that time; that the indorsement on it was not his signature, and that he never authorized any one to write that name; that his first visit to the bank was because of the protest of the note in suit; that he saw there Wentworth, the cashier, but did not know who he was ; that he said, “ I have to deny this signature, I have not seen this note before,” and that was all that was said there to him; that during the conversation he did not say to Jaquith or to Wentworth, either in words or in substance, u The note, or that note, will be paid ”; that he said nothing, “ only what I have just told you, that was all the conversation I had ” ; that, at H. S. Walker’s invitation, the witness went with him to the bank the next morning, and Walker asked for the note, and denied his signature; that Jaquith was not present at this interview ; and that the witness said nothing about this forgery of his name on that morning, but he denied his signature the day before.</p> <p>The witness also denied having any conversation with Jaquith wherein he told him that he was on Walker’s bail bond, and had done all that he was going to do for Walker, or that he had a conversation with Jaquith wherein he stated that he knew this signature was a forgery when he first looked at it, or with Wentworth.</p> <p>On cross-examination, he testified as follows: “ Q. What did you do when you first found out that this note was a forgery, when you first saw the note? A. I denied the signature.”</p> <p>Henry S. Walker testified, for the defendant, that he was a brother of Charles P. Walker; that he went to the plaintiff bank with the defendant on June 7 or 8, and saw Wentworth ; that he saw the note in suit, and told Wentworth that it was n’t his signature; that the defendant looked at the note over his shoulders, but took no part in the conversation, which lasted about five minutes ; that he did not think that the defendant denied his signature during that time ; and that no conversation took place in which the defendant denied his signature, and said it was a forgery, as stated by Jaquith.</p> <p>The plaintiff requested a ruling that, upon all the evidence in the case, the plaintiff, as matter of law, was entitled to recover, and judgment should be given for the plaintiff. The judge refused to give this ruling; found for the defendant; and, upon the plaintiff’s request for special findings, made the following special findings of fact;</p> <p>“ The note fell due June 5,1893. It was duly protested and notice was given.</p> <p>“ The defendant called at the bank, June 7, 1893, and said in substance, ‘ I have come to see that note of Walker’s which has gone to protest.’ The cashier harnded him the note. He looked at it. He said nothing, but threw the note down on the cashier’s desk. The cashier said, 6 It is all right, isn’t it? ’ The defendant said, ‘ The note will be paid.’ On June 8, the defendant came to the bank with H. S. Walker and asked to look at the note again. Upon examining it, he said that his signature thereon was not his, but was a forgery. June 8, 1893, attachment was made by the bank of C. P. Walker’s property, a small safe, a meat bench, and a few fixtures. The property was released from attachment upon demand made by the vendee in a bill of sale, which was by C. P. Walker to J. G. Walker of the same property in part as that attached. The bill of sale was made at the Tombs on the night of June 8.</p> <p>“ The court is not satisfied that the conversation took place on June 7, 1893, as related by Mr. Wentworth. The court is not satisfied that the defendant made the remark, 1 The note will be paid,’ with intent to mislead the plaintiff bank, and give its officers' to understand that the signature in question was his and genuine, or(with intent to induce the bank to assume that his said statement was an admission of the genuineness of the signature. Nor is the court satisfied that the plaintiff bank relied and acted upon his statement as an admission of the genuineness of his signature.”</p> <p>The plaintiff alleged exceptions.</p>

<p>Mortgage or Pledge — Retention of Possession — Maintenance of Lien.</p> <p>A. lent money to B., who was a dealer in merchandise, carrying a stock of goods in his store, and who executed to A. a general collateral agreement, setting forth that all the merchandise transferred or to be transferred by B. to A. should be held only as security for B.’s present or future indebtedness to A. B. also, about once a month, executed to A. a bill of sale of the goods in his store. Soon after the date of each bill, A. took possession of the goods, by touching some of them, by appointing B.’s clerk as his agent to take and hold possession for A., and by his acceptance of such agency. As new bills of sale were received, A. gave written orders to the clerk to deliver to B. in gross amounts portions of the goods included in former bills of sale. B. made sales from all the goods in the store, without regard to whether or not they had been released by A., and this was permitted by the clerk, who, wiienever he thought the amount of an order had been fully drawn, would get a new one. No separation of the goods covered by these orders was made, and new goods as they came in, sometimes between the date of the bill of sale and the day of taking possession, were mingled with the old. The proceeds of the sales went to B., who paid the clerk solely. B. finally went into insolvency, and his assignee took possession of the goods. Held, in an-action of replevin by A., that, whether be was a mortgagee or pledgee, he had failed to retain such possession of the goods as to enable him to maintain his lien.</p>

<p>Contract, upon a poor debtor’s recqgnizance, entered into by the first named defendant as principal, and by the other defendant as surety, and conditioned that the debtor should deliver himself up for examination before some court authorized to act, giving notice of the time and place thereof, “ and appear at the same time and place fixed for his examination, and from time to time until the same is concluded.” An amended an-" swer alleged that a partial examination of the debtor took place, which was continued until a certain day; that, before that date, “a written agreement for a further continuance was made at the creditor’s request, by the parties out of court, and left by the attorney for the creditor with the counsel for the debtor to file with the court, before said date, which he inadvertently failed to do ”; that, on that date, the case was called in the court, and was dismissed; and that the creditor thus waived the conditions of the recognizance. The plaintiff demurred to the amended answer, on the ground that it did not contain any legal defence to the action.</p> <p>In the Superior Court, the demurrer was sustained, and judgment ordered for the plaintiff; and the defendants appealed to this court.</p>

<p>Right to withhold Income from Cestui que Trust — Discretion of Trustee under Will.</p> <p>It sufficiently appears from a clause in a will creating a trust, — in which the net income is directed to be paid to a son " during his life, upon his receipt in writing therefor, at such times, in such manner, and in such sums as to my said trustees shall seem fit; and, at his decease, the principal sum of said several trust fund, with the income, if any, which shall have accrued thereon, shall be paid and distributed among his issue,” — that the testator, intended that the son should liave only a qualified interest in the income of the trust, subject entirely to the discretion of the trustees; and a bill in equity to reach and apply the son’s interest therein in payment of a debt will not lie.</p>

<p>Deed — Restriction —11 Single Dwelling-house ’ ’ — Evidence.</p> <p>If a building is maintained as a single dwelling-house, without structural change, either inside or outside, from its original construction, hut is used also as a private institution for the treatment of persons suffering from the liquor habit and kindred habits, who are boarded and lodged there while undergoing treatment, such use cannot be said to he a violation of a restriction in the deed by which the land was conveyed, that “ no building other than one single dwelling-house . . . shall be . . . maintained on said lot.”</p> <p>Evidence as to the meaning of the words “ single dwelling-house ” among real estate men, is inadmissible at the hearing of a bill in equity to restrain an alleged violation of a restriction upon the use of an estate, it not appearing that the original or subsequent purchasers of the property were dealers in real estate.</p>

Petition, by John Gill, executor of the will of Mary E. Met-calf, late of Orange, New Jersey, and her two minor children, by their father as next friend, to vacate the decree allowing the will of Howard Gill. The plaintiff originally propounded the will. Hearing before Allen, J., who dismissed the petition, and the petitioners appealed, and filed a bill of exceptions. The facts appear in the opinion.

<p>Taking of Water by Town — Description of Taking in Recorded Instrument—■ Validity df Taking.</p> <p>A town was authorized to take the waters of a certain brook for the use of its inhabitants by a statute, which also provided that the town might by vote declare the quantity of water it proposed to take daily, and such quantity should be held to be the limit of the town’s right to take such waters. The town voted to take the waters of the hrook, and declared the quantity which it proposed to take daily, and instructed its water commissioners to take such action as was necessary. The commissioners filed in the registry of deeds an instrument which recited a taking by the town of “ the waters ” in question. Held, upon a bill in equity by an owner of water rights on the brook to restrain an interfer- . ence therewith, that the taking was void.</p>

<p>False Answers by Trustee — Law and Fact — Instructions — Exceptions — 15 Trial.</p> <p>Where the evidence in a case is conflicting, the defendant is not entitled to a ruling that there is not sufficient evidence to warrant a verdict against him.</p> <p>At the trial of an action for making false answers in a case where the present defendant was summoned as trustee, it appeared that the defendant, who was attorney for A. in an action against the present plaintiff, had taken from A. a paper purporting to be an assignment of the judgment obtained by him in that action, dated prior to the service of the trustee writ; and that B„ a broker who was negotiating a sale of the land upon which the execution issued on the judgment was levied, paid a sum of money to the defendant, which was imrnediately attached upon the trustee writ. ' There was evidence from which the jury might find that the purported assignment was never intended hy the parties to he delivered or to take effect as a contract, but was a mere device to be used to deceive any creditors of A.; and that the payment was made by B. to the defendant to discharge the encumbrance on the land created by the judgment. To interrogatories filed to the present defendant as trustee, he had answered that he ceased to act for A. after the date of the assignment; that he did not know whether the execution had been satisfied; and that he was not accountable to A. for the sum paid by B. Held, that the judge rightly refused to rule that there was no evidence to warrant a verdict for the plaintiff, that the jury should render a verdict for the defendant, that there was no evidence to warrant a finding that the defendant knowingly and wilfully answered falsely, and that, even if the assignment was made with fraudulent intent and without adequate consideration, it would be valid between the parties and pass title to the defendant.</p> <p>No exception lies to the refusal to give instructions in the language requested, if they are given in substance; nor to the refusal to give instructions in regard to the effect to be given to different parts of the evidence.</p> <p>Under Pub. Sts. c. 153, § 5, the judge presiding at a trial may state the testimony for the purpose of aiding the jury in comprehending the issues and applying the instructions in matters of law, and if a bill of exceptions alleged at the trial does not disclose any material errors in his statement, or any charge upon the facts within the meaning of the statute, no ground of exception is shown.</p>

<p>Contract, by a cestui que trust, to recover from the executor of a will one thousand dollars, with interest due, by the termination of the trust, and payable to the plaintiff. The defendant demurred to the declaration, assigning various grounds therefor. The Superior Court sustained the demurrer, and ordered judgment for the defendant; and the plaintiff appealed to this court.</p>

<p>Petition to the Superior Court, for a jury to assess the damages for an alleged taking by the respondent of the petitioner’s land in Williamstown. Trial before Maynard, J., who, at the respondent’s request, ruled that, upon the pleadings and evidence, the petitioner could not recover, and directed the jury to return a verdict for the respondent; and the petitioner alleged exceptions. The facts' appear in the opinion.</p> <p>The case was argued at the bar in September, 1896, and after-wards was submitted on briefs to all the judges.</p>

<p>Contract, to recover the amount of a tax paid by the plaintiff to. the defendant under protest. The case was submitted to the Superior Court, and, after judgment for the plaintiff in the sum of ten dollars, to this court, on appeal by both parties, upon agreed facts, in substance as follows.</p> <p>The property taxed consisted of furniture in the house occupied by the plaintiff and his family and boarders. The house comprised twenty-three rooms, all of which, with the furniture therein, were for the common use of the plaintiff’s family and boarders, with the exception of the sleeping-rooms; of these latter fifteen were used by the boarders, and the others by the plaintiff’s family and servants.</p> <p>It is conceded that.the proceedings of the assessors in assessing the taxes were regular, and that the list was filed and other proper steps taken by the plaintiff to preserve his rights if the property is exempt from taxation by law.</p> <p>If the' plaintiff is legally liable to pay the tax upon all of the furniture, judgment was to be entered for the defendant. If the furniture is exempt from taxation to the value of one thousand dollars, judgment was to be entered for the plaintiff in the sum' of sixteen dollars. If the furniture is exempt from taxation, except that used in the sleeping-rooms of the boarders, then judgment was to be rendered for the plaintiff in the sum of ten dollars.</p> <p>The case was argued at the bar in November, 1896, and after-wards was submitted on briefs to all the judges^</p>

<p>Complaint to the First District Court of Eastern Middle-sex, for keeping and maintaining a common nuisance, namely, a tenement used for the illegal keeping and illegal sale of intoxicating liquors, between January 10 and March 9, 1896. Trial in the Superior Court, before Richardson, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant admitted that the building referred to in the evidence was used as a place where liquor was illegally sold during the time covered by the complaint. The evidence, which was uncontradicted, showed that the building was then owned and occupied, and had been for a number of years, by one Hannah Carey, who had used the building as a dwelling-house, and had kept liquor there for sale for a number of years ; that she was a widow, and, during the time covered by the complaint, the defendant, who was her daughter, lived in her house; that the house was known as Carey’s; that the furnishings of the house were the same as before the defendant went there to live with her mother; that the officers, on two occasions covered by the date of the complaint, went to search the premises with warrants, describing the house as the house of Carey; that on the first of these occasions, when the officers came to the house, the defendant opened the door, and, seeing who was there, closed it, and said, “ No, you don’t, Brown, I know you if you have got your moustache shaved off”; that the defendant was seen, when the officers got into the house, at a sink with a pitcher which smelled of whiskey, and the sink smelled of whiskey; that on this occasion Carey was present in the same room with the defendant ; that on a subsequent occasion, February 3, the officers made a raid at the premises, and the defendant was there, and also Carey, who said, in the presence of the defendant, “ If I was running the house, you would not take the pitcher from me that way ”; that on the first occasion, which was January 23, Carey said, in the presence of the defendant, “ I am not running this house ”; and that the defendant said, “ I do not want you to make out warrants against my mother, the second of Janm ary I took possession here, make out your warrants to me.”</p> <p>The witnesses for the government testified on cross-examinatian that they could see no change in the conditions about the premises, from what they had been previously to January 2, or in the manner of conducting them, except the defendant’s statements, as above.</p> <p>The defendant offered no evidence, but asked the judge to rule that, if the jury found.that Carey owned and controlled the premises, and that the defendant was not shown to have been in control of the premises at any time, the jury would not be justified in returning a verdict of guilty ; and that it was necessary to show that the defendant at some portion of the time embraced in the complaint controlled the premises in order to convict the defendant. The judge refused so to rule; and the defendant excepted.</p> <p>The judge instructed the jury as follows : “ This defendant is charged here with keeping what is popularly called a liquor nuisance, that is, a tenement or place used for the illegal sale of intoxicating liquors, and it is admitted by counsel for the defendant that the house or place referred to was in fact such a nuisance during the time mentioned in the complaint, and it appears that the defendant lived there, occupied, in part at least, the house or place during that time. Now the building itself, merely as a structure, is not a nuisance, nor is the title or ownership a nuisance; that which makes a nuisance is the business carried on in it. So the question arises and is in this case, Who was responsible for that business and use of this house ? Who carried it on? Who had control of it? Now, I think that in this kind of crime or offence, as in many others, a person may be guilty if he participates in it, if he is associated and shares in it and in the profit of it, and this defendant may -be liable or guilty if she participated in the work of carrying on this place • or house with the owner, or aided her mother in it, worked with her, and co-operated with her in it. To make one guilty of the offence charged, it is not necessary that it appear that he have the title, or even a lease in writing, or the sole control of the place. If the defendant carried on this business and house jointly with her mother, then, so far as I see, you can find her guilty of this offence, if she did that during any part of the time mentioned in the complaint.”</p> <p>The defendant excepted to these instructions, and asked the judge to limit the meaning of the words “ interest,” “ participate,” and “ co-operate,” as used therein. The judge refused so to do ; and the defendant excepted.</p> <p>The defendant asked the judge to rule that it was the keeping of the tenement or building which the defendant was charged with; and that it was the keeping of the building used as alleged in the complaint that the defendant was being tried for. The judge refused so to do, except so far as stated in the charge given.</p> <p>The defendant asked the judge to read or state the substance of §§ 6, 7, of Pub. Sts. c. 101, to the -jury, as being the chapter and sections under which this complaint was brought. The judge refused so to do.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Bill in equity, filed December 31, 1895, to restrain the defendant, by injunction, from using or occupying certain premises, and the buildings thereon, situated on Aspinwall Avenue in Brookline, for a stable for more than four horses. Hearing before Morton, J., who entered a decree in accordance with the prayer of the bill, and reported the case for the consideration of the full court.

<p>Tort, for personal injuries occasioned to the plaintiff’s testator, Jeremiah R. True, by a collision with a train of cars of the defendant. Trial in the Superior Court, before Graskill, J., who ruled that the plaintiff had offered no evidence which would authorize the jury in finding that his testate was in the exercise of such due care as is required by law to enable the plaintiff to recover; directed the jury to return a verdict for the defendant ; and, at the plaintiff’s request, reported the case for the determination of this court. If the ruling and direction were right, judgment was to be entered on the verdict; otherwise, a new trial was to be granted.</p>

<p>Personal Injuries—Caving in of Sewer Trench—Negligence — Law and Fact.</p> <p>In an action for personal injuries occasioned to the plaintiff by the caving in of the side of a sewer trench in which he was working, where all the facts are before the jury, he is not entitled, at the close of the charge, to a ruling that the fact that the earth fell out was some evidence of negligence, but the case is rightly submitted to the jury on all the evidence.</p>

<p> Unauthorized Sale of Wife’s Personal Property by Husband. </p> <p>The acts of a husband in selling his wife’s personal property during her absence, under an assurance to the purchaser that she is dead, do not deprive her of her title, or of her right to maintain an action to enforce it.</p>

<p>Equity Practice — Decree — Appeal — Report—Voluntary Association — Validity of Vote appropriating Money to Seceding Members.</p> <p>If, in a suit in equity, the evidence is taken and the case reported to this court at the request of the defendants, against some of whom a decree is entered, and as to the others the bill is dismissed, it is not open to the plaintiff, who has not appealed therefrom, to contend that the decree should be modified so as to include among those held liable some of the defendants as to whom the bill was dismissed.</p> <p>A voluntary association cannot, by a vote of a majority of its members voting on the question, lawfully authorize its officers to pay out of the funds of the asso: ciation to certain members who are permitted to secede from it and set up another and a different organization their proportionate share of the property of the association, in the absence of any provision in the constitution and bylaws of the association authorizing such an appropriation of its property, the association not being dissolved by the vote, but continuing to exist the same as before.</p>

<p>Bill in equity, by certain residuary legatees, praying for a partial distribution of the residuary estate of Ezekiel J. M. Hale, late of Haverhill. Hearing before Lathrop, J., who, at the request of the parties, reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

Tort, under the employers’ liability act, St. 1887, c. 270, by the administrator of the estate of Samuel Dewhirst, Junior, for causing his death while in the defendant’s employ as a brakeman on a freight train. Trial in the Superior Court, before' Sherman, J., who, at the defendant’s request, ruled that, on the evidence, the plaintiff was not entitled to recover, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions.

<p>Tort, for personal injuries occasioned to the plaintiff, while employed by the Independent Ice Company in loading ice on a vessel owned by the. defendant corporation, by falling through a hatchway which had been left insecure, owing to the alleged negligence of the defendant and it's servants. At the trial in the Superior Court, before Sherman, J., the defendant asked the judge to rule that, upon the evidence, the plaintiff could not recover ; but the judge refused so to rule.</p> <p>The jury returned a verdict for the plaintiff ; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>On July 20, 1893, the plaintiff, who was a roofer by occupation, was employed by Smith and Howard, a firm of roofers, who in turn were employed by one Hezekiali McLaughlin to do certain work on the roof of a building on Tremont Street, in Boston, with the owners of which McLaughlin had a contract to make repairs thereon.</p> <p>The defendant is a corporation engaged in the business of furnishing electric light in Boston during both the day and the night. For the purpose of the transmission and distribution of electricity for electric lighting, the defendant owned, maintained, and operated lines of wire running through the air over certain of the streets of the city, and over certain of the roofs of buildings therein, some of which lines were attached for their support to buildings, some to standards or fixtures upon buildings, and others to posts or poles placed in the streets.</p> <p>In 1883, the owners of the building in question entered into an agreement with the Brush Electric Lighting- Company, to whose rights, obligations, and property the defendant succeeded, whereby the owners allowed the corporation to attach its wires and structures to the building, and to run its wires above the building. It was admitted that, at the time of the plaintiff’s injury, this agreement was in force, and constituted a subsisting contract between the owners of the building and the defendant. By this agreement the corporation covenanted that it would “ keep the roofs of all buildings on which its wires are attached in repair and free from leakage during the time said wires are so attached, no matter how leakage may be caused.”</p> <p>The defendant, about six years before the accident, had placed on the rear of the roof of the building an outrigger or T-piece, which projected beyond the edge of the roof and overhung the area in the rear of the building. Two electric wires owned and operated by the defendant were attached to and ran from this T-piece to a standard or support upon the next building. The evidence was conflicting as to the exact direction in which the wires ran from the end of the T-piece, the plaintiff's evidence tending to show that they ran backward over the roof at an angle of about forty-five degrees above a portion of the roof of the building; and the defendant’s witnesses testifying that the wires ran'over the area to the structure above mentioned, and at no point passed over or above any portion of the roof of the building. The plaintiff at the time of the accident was engaged in putting on edge flashing, that is, strips of zinc placed on the edge of the gutter and extending down the side of the building, and was working on the right hand side of the T-piece and within three or four feet from it. He testified that the wires ran over his left shoulder as he was facing the area just before his injury. While engaged in his work he came in contact with one of the wires, which was carrying electric current supplied by the defendant, and he received a shock which caused convulsions, and he then fell headlong from the roof to the' bottom of the area, sustaining the injuries complained of. There was evidence that, at the point where the plaintiff came in contact with the wire, it was situated about two inches away from the rear edge of the building over the area.</p> <p>The plaintiff testified that the last thing he remembered before receiving the shock was that he was on his knees, driving a nail into a cleat, and leaning slightly over the edge of the roof ; that he did not think then that, as it was in the daytime, there was any electric current in the wires; and that it was necessary for him to come close to the wires in order to do his work.</p> <p>Other witnesses to the plaintiff’s injury, called by the plaintiff, testified that, immediately before the time of his injury, he was on his knees nailing on a cleat and looking to see where he was driving the nail; that at the time of his injury he was in the act of getting back off his knees when the wire struck him in the neck; that he put up his hand to see what struck him and caught the wire, which doubled him up and threw him off the roof; that in getting up from his knees he got his head in between two wires ten or twelve inches apart, and struck one of them with his neck; that while he was working on his knees the wires were right over his head and the back of his neck; that he had to stoop underneath the wires to get a nail on the outside; and that he was nailing on the outside, and “ drew back to get some more nails, and the wire struck him somewhere on the neck.”</p> <p>One Collins, a witness called by the plaintiff, testified that, at the place where the plaintiff came into contact with the wire, the covering was bleached and worn off the wire; that the covering was in a rough state, and in a worn out condition; and that he could see part of the wire, probably larger than a pinhead, there being little holes in it.</p> <p>One Gettings, a witness called by the plaintiff, testified that, after the accident, he looked at the wire and saw that the cording underneath it was all worn off; that the covering of the wire was dark colored when it was first put on, but that it was at the time of the accident faded out, and the thread was almost worn off; that close to the T-piece, where the wires connected the under part of the wire, the thread was worn off, and on the top part of the wire one could see pinholes; and that on the under part of the wire, at a distance of about four inches from the glass insulators situated on the T-piece, the wire was exposed for a space of two inches.</p> <p>It appeared that the defendant’s wires attached to the T-piece had been so attached for about six years prior to the time of the accident; that the wires were of copper with two coverings of cotton braid, each covering being treated with some kind of a chemical; that such coverings are known as “ insulation ”; that an electric shock from electric light wires comes only through the “ grounding ” of the electric current on both the positive and the negative wires of the circuit; that zinc is a good conductor of electricity, and if a man should stand on a metal floor or on zinc, and should take hold of a wire and the circuit should be grounded at some other point, he would be likely to get a shock, no matter what the insulation might be ; that if zinc on a roof is in contact with a gutter or some other conductor so that the current can get to the ground in any way, and the man is in contact with the zinc, and the electric light circuit is grounded somewhere else, the conditions are such as to render it probable ■ that he will receive an electric shock, no matter what the condition of the insulation may be; and that the defendant’s circuits in Boston are divided into districts, in each of which one or more inspectors employed by the defendant are charged with the duty of going over the lines and districts from time to time in order to see whether the wires and the insulation thereon are in proper condition.</p> <p>One of the inspectors, called by the defendant, testified that within a month prior to the accident he inspected these wires attached to the T-piece, and then found the insulation on them to be in good condition.</p> <p>Hezekiah McLaughlin, a witness called by the plaintiff, testified that he was a mason and builder and contractor; that in July, 1893, he was engaged in work on the building in question, having a contract with the owners to do a certain amount of work there; and that Smith and Howard, the plaintiff’s employers, were employed by him to do some roofing, and to make some repairs on certain parts of the roof.</p> <p>On cross-examination, the witness testified that Smith and Howard had to patch up round some elevators that he removed from the roof; that he “ hired them to do this part of it, patching around the elevators, — not this connected with this suit at all ” ; and that he did not have anything to do with Smith and Howard in relation to the work which was being done by these men at the time of the accident.</p> <p>Russell Gr. Fessenden, a witness called by the plaintiff, testified that his firm was in the real estate business, and were agents for the owners of the building in question. He testified further as follows:</p> <p>“ Q. Did you have a contract with Smith and Howard to do any work upon the roof of this building? A. No contract.</p> <p>“ Q. Did you employ them to do any work upon the roof ? A. Not directly.</p> <p>“ Q. Did you through anybody ? A. Yes.</p> <p>“ Q. And through whom? A. Through Mr. McLaughlin.</p> <p>“ Q. Do you say you don’t remember whether 'these men were employed by you, or the firm was employed by you ? Do you say you can’t remember whether you employed Smith and Howard ? A. I did n’t see -Smith and Howard directly and employ them. I asked Mr. McLaughlin to have some work done which was not in the regular contract.</p> <p>“ Q. In consequence of that were these men employed? A. Yes.</p> <p>“ Q. To repair the roof and stop the leaks ? A. Yes. . . .</p> <p>“ Q. Do you remember at all about this work being done ? A. I do.</p> <p>“ Q. Do you remember about this tin work being done on the edge of the roof ? A. Yes, sir.</p> <p>“ Q. You knew of that personally? A. I did.</p> <p>“ Q. Was it done at that time, about July 20, 1893 ? A. About that time. . . .</p> <p>“ Q. Whether or not you paid Mr. McLaughlin certain items, charges for work done on July 20, 1893, by the plaintiff and others working for Smith and Howard? A. Well, we paid the bill; that was one of the items in this bill.”</p> <p>The plaintiff then offered the bill in evidence, containing the item above referred to, rendered by McLaughlin to the owners of the building.</p> <p>The defendant objected to the admission of the bill, or any part thereof, upon the ground that no connection had been shown, or was offered to be shown, between Hezekiah McLaughlin and Smith and Howard, the plaintiff’s employers, or the plaintiff.</p> <p>The judge ruled that it was competent for the plaintiff to show the item above referred to, and it was accordingly admitted in evidence; and the defendant excepted.</p> <p>The witness, upon referring to the bill, testified that the item was for “ repairing edge flashing,” and included the details of materials furnished and labor performed, and was for the work which had been described by the plaintiff and the other witnesses.</p> <p>At the close of the evidence, the defendant asked the judge to rule that, upon the whole evidence, the plaintiff could not recover, and also presented numerous requests for instructions, all of which were refused. The judge, besides instructing the jury fully upon the questions of reasonable care on the part of the plaintiff, and of negligence on the part of the defendant, instructed them, among other things, as follows:</p> <p>“ Now in this case it is conceded that the defendant corporation had the right to attach its wires to the building, and if the corporation used reasonable care in attaching those wires, and taking care of the wires after they were attached, and the plaintiff was injured, and that injury was simply because there was a necessary danger in the use of the wflres in connection with this building, which could not be avoided by the exercise of reasonable care, the plaintiff cannot maintain this action. That is one of the aspects in which the fact that the wires were there by virtue of a contract entered into between the predecessor of the defendant corporation, to whose rights the defendant has succeeded, and the owners of the building, is important.</p> <p>“ But there is another aspect in which this matter is of importance. If it became by reason of the agreement, as it is not disputed it did, the duty of the defendant corporation to make repairs from time to time upon the roof, so far as repairs were needed for the purpose of preventing leakage, then the defendant corporation had the right to assume that it would be called upon to make those repairs, and the repairs would be made by its employees. Now, suppose this corporation had reason to suppose that nobody would be likely to go upon the roof of that building for the purpose of making repairs, because the corporation assumed that naturally, by reason of its agreement, it would be called upon to make the repairs, then of course the corporation was not required to anticipate that there would ever be upon the roof of that building so many persons as would be likely to go upon it if the owners were to make repairs. And in determining what would be reasonable care on the part of the defendant corporation in looking after the condition of its wires, keeping them covered or insulated, or in the position of the wires as originally attached, the corporation may take into consideration the number of persons likely to go upon the roof who were liable to be injured.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Trustee process. In the Superior Court the trustee, the Hancock National Bank, was charged in the sum of $105.63; and the plaintiff appealed to this court. The facts appear in the opinion.

<p>Tort, for personal injuries occasioned to the plaintiff while on the defendant’s premises. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant was the proprietor of a liquor store. The plaintiff having visited the store first bought a glass of beer of a bar-tender named Moran, and then went to the water-closet, or urinal, in the rear of the saloon, which water-closet or urinal was adapted and intended for the use of customers. While the plaintiff was in the rear of the place the bar-tender, Moran, opened a trap door near the end of the bar, and directly in the path of the plaintiff as he would return from the urinal, and left the trap door open while he, Moran, went into the cellar. As the plaintiff returned, at the third step he took from the urinal he fell into the opening. The plaintiff testified that he heard no warning of any kind; that he did not observe the open door because the counter kept the light from the front of the store from falling upon it, while his own body shut off the light from the rear, and that the light from the front of the store, coming over the counter, dazzled his eyes somewhat; and he further testified that the day was somewhat cloudy.</p> <p>One Flanagan, another bar-tender, testified for the defendant that the plaintiff did not ask for or receive any liquor while in the store; that after Moran had gone into the cellar he, the witness, stood by the trap door; that he did not see the plaintiff until he was within four or five feet of the opening; that he warned the plaintiff that the trap door was open ; that the plaintiff paid no attention to him, but walked into the opening; and that he could have prevented the plaintiff from falling into it if he had stood between it and the plaintiff.</p> <p>Moran was not called as a witness.</p> <p>The counsel for the defendant asked the judge to rule that, upon all the evidence, the plaintiff was not entitled to recover. The judge refused so to rule.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort, against a deputy sheriff, for an alleged trespass upon the plaintiff’s premises. The case was submitted to the Superior Court upon agreed facts, in substance as follows.</p> <p>The case was tried without a jury, before Maynard, J., who, on September 6, 1895, found for the plaintiff; and the defendant alleged exceptions.</p> <p>An extension of the time for filing a bill of exceptions was allowed by the judge, until October 1, 1895. On that day the defendant filed a bill of exceptions in the case. No notice of the filing of such bill of exceptions was ever given to the plaintiff or to his attorney.</p> <p>On October 9, 1895, the plaintiff filed a motion that the bill of exceptions be dismissed, for the reason that notice of the filing thereof was not given to him or to his attorney in accordance with the statutes and the rules of the court.</p> <p>The defendant admits that no notice of the filing of his bill of exceptions has been given to the plaintiff or to his attorney, but contends that, by virtue of St. 1895, c. 153, it was not necessary to give such notice.</p> <p>The plaintiff contends that St. 1895, c. 153, does not abrogate the requirements of Pub. Sts. c. 153, § 8, or of Rule 49 of the Superior Court, so far as concerns the giving of notice to the adverse party of the filing of bills of exceptions.</p> <p>If the court is of opinion that, notwithstanding the enactment of St. 1895, c. 153, the provisions of Pub. Sts. c. 153, § 8, and of Rule 49 of the Superior Court, so far as regards the necessity or requirement for giving notice to the adverse party of the filing of a bill of exceptions, are still in force, the plaintiff’s motion is to be allowed, and the defendant’s exceptions are to be disallowed ; otherwise, the plaintiff’s motion is to be denied.</p> <p>The Superior Court ruled in accordance with the plaintiff’s contention, and allowed his motion ; and the defendant appealed to this court.</p>

<p>Indictment, alleging that the defendant, on July 4, 1895, at Boston, “ with force and arms in the night-time of said day, a certain building, to wit, the warehouse of one James B. Williams, there situate, feloniously, wilfully, and maliciously did burn and consume, 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 empanelled, the defendant moved to quash the indictment, assigning the following reasons:</p> <p>“ 1. The indictment is bad for duplicity, since it charges in a single count the two several statutory felonies described in Pub. Sts. c. 203, §§ 2, 4.</p> <p>“ 2. The indictment is also bad for uncertainty, since it is doubtful from the contents of its averments which, if indeed either, of the several offences contained in the two sections mentioned is intended to be charged.</p> <p>“ 3. And it is no less a matter of uncertainty whether the words ‘ contrary to the form of the statute,’ found at the close of the indictment, have particular reference to one or the other or both of said sections, or to any other penal enactment in our law.</p> <p>“ 4. The indictment, whether based upon the second or the fourth section named, is fatally defective, because it does not directly and positively indicate, but only argumentatively and in an uncertain and illative manner, either the precise offence intended to be charged, or the description of the building said to have been consumed.</p> <p>“ 5. In the same relation the indictment is fatally defective, because it states after a videlicet, namely, after the words 6 to wit,’ a matter of description which should be directly, precisely, and positively averred.</p> <p>“ 6. If the indictment be regarded as a process founded on Pub. Sts. c. 203, § 2, it is defective because it contains no statement of 6 the value of the building burned, with the property therein contained.’ ”</p> <p>The defendant also filed a supplemental motion to quash the indictment, assigning several general grounds therefor.</p> <p>Gaslcill, J., overruled these motions; and the defendant excepted.</p> <p>The government was then allowed, against the defendant’s objection and exception, to enter a nolle prosequi as to such portion of the indictment as charged that the offence was committed in the night-time.</p> <p>The defendant thereupon filed a special plea in bar to the indictment, alleging that he was under seventeen years of age and entitled to be prosecuted under the provisions of law relating to juvenile offenders. To this special plea the government demurred. The demurrer was sustained; and the defendant excepted.</p> <p>The defendant, having peremptorily challenged two of the jurors called to try the cause, peremptorily challenged a third juror, claiming that he was entitled by law. to twenty-two peremptory challenges. But the judge refused to allow the defendant peremptorily to challenge more than two of the jurors, ruling that he was entitled by law to no more than two peremptory challenges; and the defendant excepted.</p> <p>At the trial, before the commencement of the arguments, the defendant asked the judge to instruct the jury, among other things, as follows:</p> <p>“ 1. The indictment is insufficient in point of law to warrant the defendant’s conviction of any criminal offence.</p> <p>“ 2. The testimony is insufficient to warrant the defendant’s conviction of any criminal offence here charged.</p> <p>“ 3. The proof is insufficient to show that the defendant either committed or participated in the commission of any offence here charged. ...</p> <p>“ 5. Before the defendant can be convicted every juror must be convinced, or satisfied beyond a reasonable doubt, of the fact of his guilt. . . .</p> <p>“ 13. There is a further special averment in the indictment relating to the building consumed. The building is said to have been a warehouse, and this particular averment must be proved as stated. The term ‘ warehouse ’ has a specific and definite meaning in the law, and the proof introduced by the Commonwealth is insufficient to show that the building was of the character named.”</p> <p>The judge declined to give the first, second, and third instructions requested, and, with' reference to the fifth request, instructed the jury that, before finding the defendant guilty, they must be satisfied beyond a reasonable doubt of the fact of his guilt; and the defendant excepted.</p> <p>With reference to the thirteenth instruction requested, the witness Williams had testified that, at the time of the alleged offence, the building was occupied and used by him for the storing of his tools and stock, the latter consisting of paints, oils, varnish, shellac, etc., but it did not appear that the building had been occupied by him for any other purpose than as a place for storing such material as was privately used by him in the prosecution of his personal business.</p> <p>The judge gave to the jury all of the thirteenth instructian requested, except the final sentence; and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Information in the nature of a quo warranta, filed August 3, 1894, by the Attorney General “ on relation of the inhabitants of Petersham,” praying that the defendant’s charter might be declared forfeited on the grounds of the non user and misuser of its franchise.

<p>Guaranty — Memorandum—Statute of Frauds — Alteration of Instrument by Promisee after Delivery — Effect of Change in Form of Collateral Security.</p> <p>While A. and B. were negotiating in regard to the making of a loan by A. to a corporation, B. wrote to A. as follows: “The security offered for the temporary loan . . . consists of the bonds of the company to the amount of . . . I am wiiling to make myself responsible for the payment of principal and interest as you request it. ... I enclose mem. to the effect above mentioned.” The memorandum so enclosed was as follows, and was signed by B.: “ If your principal,” naming it, “ and interest at 10 per cent is not paid as stipulated, I hereby make myself responsible for its payment.” A. afterwards made the loan of a certain sum, upon a contract to repay him the money with a bonus .of twenty per cent and interest at ten per cent, for which the following receipt, signed by B., was given: “ Received of A. the sum of . . . for investment according to arrangement.” Seven years later a letter from A. to B. stated that the stipulation was to pay the interest half-yearly and the principal at a time then passed, and that the sum included the bonus as well as the money loaned. In B.'s reply to the letter he said, “ I accept your proposal without hesitation.” Held, that there was a sufficient memorandum in writing, within the statute of frauds, Pub. Sts. c. 78, § 1, to make the contract of guaranty binding.</p> <p>An alteration of the sum named in a memorandum as the principal, the payment of which with interest is guaranteed, which is not an absolutely immaterial one, but which is made in good faith by the promisee, after delivery, with a view to correct an error and to carry out the intention of the guarantor, will not deprive the promisee of his right to rely upon the memorandum to prove the original contract.</p> <p>If A. lends money to a corporation, and takes as collateral security for its payment bonds of the corporation, the whole issue of which is secured by a mortgage of land, and also takes a contract of guaranty from B., a subsequent foreclosure of the mortgage for the benefit of the bondholders does not afiect A.’s right to enforce the guaranty.</p>

<p>Indictment — Evidence—Verdict— Trial— Criminal Pleading — “Assault with intent to commit Larceny ’ ’ •—• Sentence.</p> <p>An indictment under Pub. Sts. c. 202, § 26, alleged that the defendant, at a time and place named, “ with force and arms, with intent to commit larceny, in and upon one A. an assault did make, and him the said A. in a certain building, to wit, . the shop of one B. there situate, feloniously and unlawfully did then and there confine, beat, bruise, wound, and put in fear, for the purpose then and there of feloniously stealing, taking, and carrying away from said building the moneys, goods, and chattels in said building then and there being.” Held, that the indictment contained a valid charge of assault and battery, and that it was not necessary that it should aver the ownership of the goods intended to be stolen.</p> <p>At the trial of an indictment against C., under Pub. Sts. c. 202, § 26, charging an assault upon A., if A. has testified that the defendant struck him, there is no valid objection to the questions, “How do you know it was C. that struck you 1 ” and “ What was C. doing when you turned around 1 ”</p> <p>Evidence as to the property said to have been stolen is competent upon the trial of an indictment, under Pub. Sts. c. 202, § 26, alleging an assault with intent to commit larceny.</p> <p>An indictment under Pub. Sts. c. 202, § 26, in one count alleged that the defendant, at a time and place named, “ with force and arms, with intent to commit larceny, in and upon one A. an assault did make, and him the said A. in a certain building, to wit, the shop of one B. there situate, feloniously and unlawfully did then and there confine, beat, bruise, wound, and put in fear, for the purpose then and there of feloniously stealing, taking, and carrying away from said building the moneys, goods, and chattels in said building then and there being.” At the trial, the judge instructed the jury that, under the indictment, it was possible for them to return one of either four classes of verdicts : 1. Of the full offence. 2. Of an assault with intent to commit larceny. 3. Of assault and battery. 4. Of not guilty. The jury agreed after the adjournment of the court for the day, and, as instructed by the judge, sealed up their verdict before separating. The verdict orally announced in court was as follows : “ Guilty of assault, with intent to commit larceny.” The written verdict returned into court was as follows : “ First count, Not guilty. Second count, Guilty. Third count, Guilty.” In response to a question by the judge, whether by the word “count” they meant “ offence,” as indicated in his charge, the jury replied that they did; that by “ first count ” they meant the full offence; that by “ second count ” they meant assault with intent to commit larceny; and that by “ third count ” they meant assault and battery. Held, that the verdict was properly received and recorded.</p> <p>If the defendant was acquitted of the full offence with which he was charged under Pub. Sts. c: 202, § 26, no question as to the sufficiency of the evidence to support the charge of that offence is open upon exceptions, after conviction of a lesser offence.</p> <p>It seems, that the offence of assault and battery with intent to commit larceny, without more, is not punishable as a distinct offence under any statute of this Commonwealth, or at common law.</p> <p>If a statute specifies “ force and violence ” as an ingredient of an offence, the charge of the offence should include those words, and an averment that it was committed “ with force and arms ” is not an equivalent.</p> <p>A charge of an attempt to commit an offence must be set forth in direct terms.</p> <p>A defendant indicted under Pub. Sts. c. 202, § 26, may be sentenced for assault and battery, although acquitted of the full offence charged in the indictment, and convicted of “'an assault with intent to commit larceny.”</p>

Bill in equity, filed in the Superior Court on April 15,1895, by James H. Stark, Isaac Schurmán, and Annie J. Schurman, and alleging the following facts. On June 27, 1883, Lydia T. Anderson, Benjamin F. Davis, and Mary E. Davis, then the owners of an estate in Boston, conveyed the same to the defendant by warranty deed, recorded July 6, 1883.

<p>Bill in equity, filed August 19, 1895, by the surviving trustee under the will of Joseph Lovering, to obtain the instructions of the court as to the construction of the will.* Hearing before Lathrop, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Bill in equity, filed in the Superior Court, against James Early, a deputy sheriff, Albert K. Page, Luke J. Page, Edward S. Boosa, and, by amendment, against Thomas G. Kent and George T. Dewey, copartners as attorneys at law, to determine the disposition of a certain sum of money, and to restrain the prosecution of an action at law. Hearing before Bishop, J., who reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Contract, to recover $70 as a commission for negotiating a sale of real estate in Wellesley. Trial in the Superior Court, without a jury, before Dunbar, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to prove that the plaintiff was station agent for the Boston and Albany Railroad Company, at Eliot, in the city of Newton; and that he did a real estate business with the consent of the railroad authorities.</p> <p>The plaintiff testified, in substance, as follows: “ Previous to November 14, 1894,1 had been informed that the defendant had some real estate for sale, and I wrote to him to know if such was the fact. In reply to my letter, I received from the defendant a letter, containing the following: ‘ I am not very anxious to sell, but would like to know about what the party you mention is willing to pay for the lot.’ On December 19, 1894, I talked with Mr. Foster’s agent, one Delany ; I sent word by Delany to Foster something in regard to the price of the latid. On the twentieth day of December I went to see the defendant, and told him that I had an offer for the land from Edgar W. Foster. The defendant informed me that Foster had been there about an hour and a half previous to my call. On February 28, 1895, I had an offer from Foster of $175 per acre for the land. On the fourth day of March I wrote to the defendant, but received no reply, and then on March 12th I went to see him. I asked him if he had decided to accept the second offer that Foster had made for the land, and he said that he had not decided, but he would do so in a few days. I saw the defendant three days later. He told me to see Mr. Clapp, at No. 165 High Street, Boston, and, if he said it would be all right to sell at that price, to do so. On the same day I went to see Clapp, and found him at Foster’s office. Foster, who was present, told me that Clapp was writing out the agreement for the sale of the land. I told Clapp that the defendant had sent me to know whether he would accept the offer for the property, and Clapp said that, under the circumstances, he would advise him to sell, and asked me in what way I was connected with the matter, and I told him I was agent for the defendant. I told him that my commission would be two and one half per cent on the sale of the land. This was before I knew that the land was sold. Sometime afterwards, and before the eleventh day of April, I called on the defendant again, and he informed me that the trade had been closed, and the money paid. Something was said about a commission. He told me to make out my bill, and send it to Clapp. I never sent the bill for the commission to the defendant, but did send a bill to Clapp.”</p> <p>On cross-examination, the plaintiff testified that he understood that the defendant referred him to Clapp, so that his opinion might be taken before anything should be done; and that the defendant wanted Clapp’s judgment on the matter.</p> <p>Edgar W. Foster, called as a witness by the plaintiff, testified that he was a dealer in real estate, and purchased the defendant’s estate; that the plaintiff told him about it, and informed him that he thought the property could be bought; that the witness told him to look it up, and make the defendant an offer for it, and to let him know if the offer would be accepted; that on the very day that he talked with the plaintiff about the land, he went to see the defendant; and that he did not say anything to the defendant about the plaintiff sending him, or telling him of the land, and did not mention the plaintiff’s name at all.</p> <p>On cross-examination, the witness testified: “ I looked over the land, and came to the conclusion it was worth $150, so I offered him $150 for it. I said nothing to the plaintiff about that. I did n’t consider that he was acting as agent for me. . . . When I went to see the defendant I did not think anything about the plaintiff as being a broker in the transaction. He simply told me about the property being there, and said he thought it could be bought. When I made the offer of $150 an acre to the defendant, he said he would let me know a little later on whether he would accept that offer or not. I did not hear anything from him until quite a while afterwards, and I spoke to the plaintiff about' it, and he said he would look the matter up further and make another offer for it. I told him that I would give $175 an acre for it. I afterwards made the deal with Clapp, who, as I understood, had the matter in his hands. I dealt with Clapp direct, as he had full authority. ... The plaintiff had no further connection with the transaction, except as I have stated.”</p> <p>Albion E. Clapp, called as a witness by the defendant, testified that he had dealt in real estate, and had acted as agent for others in real estate transactions; that the defendant had left the management of most of his affairs to him; that the witness had been trying to sell the land in question for several years; that he never met the plaintiff until after tie trade for the sale of this land with Foster was closed; that after he had closed the trade with Foster on March 15, 1895, he met the plaintiff for the first time ; that the plaintiff asked him about this property, and he said that he had sold it to Foster, and the plaintiff said he should claim a commission on it then, if it was sold; and that he told the plaintiff that he did not think he was entitled to any commission on the sale, as he had not done anything about it.</p> <p>On cross-examination, the witness testified that he first called on Foster in reference to this trade because the defendant asked him to do so ; that the plaintiff sent him a bill, and in response he wrote the plaintiff a letter, declining to approve the bill for the full amount, and offering to pay him, “ as soon as the trade is consummated,” a commission of $45.93 ; that he had offered since then to pay him one half the commission and divide it with him ; that in a later letter he told him that, when the sale was completed, he would see that he got his share of the commission ; that he offered at one time to pay him $50 commission, in ■ order to avoid any lawsuit; and that he wrote the letter on his own authority only.</p> <p>The defendant requested the judge to rule, as matter of law, that, upon all the evidence, the plaintiff could not maintain his action. The judge refused to rule as requested, and found for the plaintiff in the sum of $52.25.</p> <p>The defendant alleged exceptions.</p>

<p>Tort, for the conversion of personal property. Trial in the Superior Court, without a jury, before Maynard, J., who found for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.</p>

Contract, to recover for work and material furnished in repairing and plumbing the defendant’s houses. At the trial in the Superior Court, before Sheldon, J., the jury returned a verdict for the plaintiff for $69.25. Thereupon the defendant moved to set aside the verdict on the grounds that it was against the evidence, the weight of the evidence, and the law, and that the damages were excessive. The judge overruled the motion ; and the defendant excepted.

<p>Complaint, to the Municipal Court of the Dorchester District of Boston, charging the defendant, on February 28, 1896, at Boston, with the larceny of a one-dollar bill, the property of Margaret Driscoll. Trial in the Superior Court, on appeal, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Margaret Driscoll testified that on February 28,1896, she was employed by a family living in Dorchester; that the defendant came to her and asked her to purchase a ticket entitling her to have one dozen photographs taken for one dollar and a half, twenty-five cents to be paid in advance, at the Revere Studio in Boston; that'she purchased a ticket of the defendant and paid him therefor twenty-five cents; that thereupon the defendant said to her that, if she would give him twenty-five cents more, he would finish off six or seven more photographs for her; that she said to him that she had no more change, and he told her he would change a bill; that she gave him a one-dollar bill, and he put it in his pocket, saying, “There is another man «with me on the road, I have not got the change, I am going out for the change ”; that he gave her two tickets and told her to hold them until he came back, and he never came back; that she did not see him until a week or so later, when he denied that he ever saw her before; that, after handing the one-dollar bill to the defendant, she had no claim upon it, except for the seventy-five cents in change which the defendant agreed to bring back to her; and that she had never visited the Revere Studio, nor applied to have any pictures taken upon the ticket purchased of the defendant.</p> <p>Christopher Karcher, a police officer, testified, subject to the defendant’s exception, that on March 9, 1896, he arrested the defendant; that he then asked him if he was guilty, and he said, “No”; that the defendant also said he had to suffer for some one else; that the defendant gave the witness his name as Andrew Hall; that the witness then took the defendant to the police station, and there asked his name, and he would not give his right name, but said his name was Taylor; and that then he said his name was Daniel Flynn.</p> <p>There was no other evidence tending to prove the defendant guilty of the offence charged. The defendant requested the judge to instruct the jury as follows:</p> <p>“1. There is not sufficient evidence to warrant the jury in finding the defendant guilty.</p> <p>“2. If the defendant fraudulently obtained possession of the . piece of paper described in the complaint as the property of Margaret Driscoll, intending at the time he received it to convert it to his own use, Margaret Driscoll intending to part with her title to the piece of paper, but expecting to receive seventy-five cents in change from the defendant, he cannot be convicted of larceny upon this complaint.</p> <p>“3. If Margaret Driscoll purchased of the defendant a ticket for photographs and paid him twenty-five cents therefor, and the defendant thereupon offered to finish off several extra photographs for Driscoll for twenty-five cents more, and Driscoll accepted the defendant’s offer, and delivered to him in payment a dollar bill, expecting to receive back seventy-five cents in change, and the defendant fraudulently converted said seventy-five cents to his own use, he cannot be convicted of larceny of the dollar bill.</p> <p>“ 4. If Margaret Driscoll made an agreement with the defendant, and paid him pursuant thereto twenty-five cents, but in the form of a dollar bill from which he was to deduct his twenty-five cents, returning to Driscoll the change, the defendant owned an interest in said dollar bill and cannot be convicted of larceny thereof.”</p> <p>The judge refused to rule as requested, but instructed the jury, among other1 things, as follows:</p> <p>“ The jury must be satisfied beyond a reasonable doubt that the defendant was the person who had the transaction with the witness Driscoll; if they are not so satisfied, they must return a verdict of not guilty; if they are so satisfied, they must determine whether the taking of the dollar bill was larceny. Ordinarily, larceny is the unlawful taking of property; but where the taking is by fraud and deceit, that' is an unlawful taking. You have to consider in this case just what took place; you have the testimony of Margaret Driscoll as to what took place. The matter of this complaint does not rest upon the first twenty-five cents. Whether the first twenty-five cents was obtained to get off with it or not has nothing to do with this case. She said that the defendant said to her that if she would pay twenty-five cents more then he would finish six more pictures for her. She said she told him she did not have any more change, and then did he say to her that he would change a bill, and after he got the bill into his possession did he put it in his pocket, and did he then say that he had another man with him on the road, that he did not have the change, that he would go out and get it changed ? More than that, Was that talk about changing the bill merely for the purpose of getting the bill into his possession and going off with it ? If so, then that was larceny. If, on the other hand, he intended to give her the change in good faith, and then went off and made up his mind not to return, that was not larceny. Did he get it into his possession for the purpose of making off with it, or did he get it to change it and afterwards ‘decide not to do so ? What did he say, — that he would give her the change, meaning that then and there he would give her the change? When he got the bill into his possession, was his conduct such as to indicate that he did not intend to return with the change? What was the intent with which he got it into his possession ? If the whole scheme was to get the money from her by fraud and deception, for the purpose of depriving her of it, it was larceny. Before you can return a verdict of guilty, you should be satisfied that he got the bill by deception, with intent to convert it to his own use.”</p> <p>The defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court April 15, 1896, to restrain the defendants from interfering with the plaintiff’s rights, under a lease by them to him of the front portion of the basement under the entrance to the building known as the Tre.mont Theatre, in Boston. The answer set up an entry for breach of the conditions of the lease. Hearing before Braley, J., who entered a decree for the plaintiff; and the defendants appealed to this court. The facts appear in the opinion.</p>

<p>Tobt, for the conversion of three cows and two calves, alleged to be the property of the plaintiff. The answer contained a general denial, and also alleged that the defendant was a deputy sheriff, and, as such, attached the property in question upon a writ brought by one ICorth and another, against James W. Whippie and Louise A. Whippie ; and that the property so taken by him was the property of the defendants in that action, and not the property of the present plaintiff. Trial in the Superior Court, before Fessenden, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to show that the plaintiff lived on a farm with his brother, and had bought in November, 1894, the three cows (the calves being the result of natural increase of the cows) of persons other than his brother, which cows and calves were kept on the farm. In support of his answer, the defendant offered in evidence an attested copy of the writ and the proceedings thereunder, without offering a record of the judgment in the case, or introducing evidence to show any probable cause of action upon which the writ issued.</p> <p>The counsel for the plaintiff admitted that the property was taken regularly on attachment; and that the only question in the case was as to the ownership of. the property.</p> <p>The judge charged the jury, in part as follows: “ The evidence shows that the defendant was a deputy sheriff of Middlesex County, who went to the place with a writ to make an attachment under which he would be justified if the property belonged to the defendant in that writ.”</p> <p>The judge further instructed the jury, that there was no question that the defendant took the cows and calves as a deputy sheriff; and that the plaintiff, in order to recover, must show by a fair preponderance of the evidence that they were his property; and otherwise instructed the jury as to the evidence tending to show that the cows and calves belonged to the plaintiff, and not to his brother, the defendant in the case of JKorth v. Whippie, and on the question of damages; to which instructions no exception was taken by the plaintiff.</p> <p>At the close» of the charge, the plaintiff asked the judge to instruct the jury “ that the defendant as an officer has shown no j ustifieation for taking the plaintiff’s property.” This instruction the judge refused to give.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Appeal from an order of the Superior Court, discontinuing an action with costs upon the defendant’s motion to dismiss, which alleged “ that the plaintiff has attached his property to the amount of one thousand dollars; that no declaration and bill of particulars were inserted in her writ; that the defendant demanded a copy of said declaration of the plaintiff, and the plaintiff did not within three days after said demand furnish to the defendant such copy.” The facts appear in the opinion.</p>

Conteact, to recover damages for the alleged breach of an agreement. The case was referred to an auditor, who found that the plaintiff did not commit the alleged breach, and further found that he was entitled to recover of the defendants one dollar nominal damages. The case was then reported by Sherman, J., at the plaintiff’s request, for the determination of this court, such judgment to be entered as justice might require.

<p>Divorce — Finding — Decree.</p> <p>Evidence that a husband, whose marriage in this Commonwealth was a compulsory one, never lived with his wife, except that he staid with her over night a few times shortly after the marriage, and never did anything for her support, and that about a year afterwards, without saying anything to her about going away, he went into another State, where, soon after he was able to do so under its laws, he applied for and subsequently obtained a divorce from her, and during the following year returned to his former home here and continued to reside here, will warrant a finding, at the hearing of a libel for divorce by her on the ground of his desertion, that he went to the other State for the purpose of obtaining his divorce for a cause which occurred here while the parties resided here, intending to return here to live after it was obtained; and will justify the entry of a decree in her favor.</p>

<p>Information by the Attorney General, in the nature of a quo warranta, alleging that the defendant had usurped the office of superintendent of public buildings in the city of Lowell. At the hearing, before Barker, J., it appeared that the respondent was elected to the office by concurrent vote of the city council on January 15, 1897, having filled the position during the preceding year by the election of that body, and that one Richard Bray was duly nominated by the mayor to the same office on January 4, 1897, and qualified on the following day. The judge reserved the case for the consideration of the full court.</p>

<p>Contract, against the first named defendant as principal, and the other defendants, Hiram N. Lathrop and J. B. Wentworth, as sureties, upon a bond given to dissolve the attachment. Trial in the Superior Court, without a jury, before Mason, C. J., who found for the defendant principal, and for the plaintiff as against the defendant sureties; and they alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, by tbe administrator of the estate of Frederick Hewitt, for causing bis death.</p> <p>At tbe trial in the Superior Court, before Lilley, J., it appeared that the plaintiff’s intestate was a child three years and eight months old, and lived with his parents on Bay Street in Taunton, which was one of the main thoroughfares in the city, and upon which the defendant’s electric railway ran; that, on the day of the accident, the child’s father came home about five o’clock in the afternoon and went directly into the house, leaving the child alone in the yard, where he was then playing ; that the yard adjoined the sidewalk, having a fence with gates opening thereon ; that the child’s mother was also in the house, and both parents remained there, attending to domestic duties and taking no notice of the child for- about fifteen minutes: and that the child was seen to run across the street with a companion, and then start to return, running diagonally across the street with his back turned towards an approaching car, which struck and killed him.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the refusal to rule that, “ as matter of law, the parents of the child were not exercising due care, and so the plaintiff could not recover,” and also to the admission of certain evidence, the nature of which appears in the opinion.</p>

<p>Promissory Note—Corporation■—Lex Loci Contractus — Evidence—■ Want oj Notice to Indorser of Dishonor— Waiver of Notice-—Knowledge by Indorser of Omission of Notice — Agreement after Maturity for Payment of Usury.</p> <p>In an action against the second indorser of a promissory note made by a corporation, the note is rightly admitted in evidence. The indorsement admits the signature and capacity of every prior party, and this includes the existence and capacity of the corporation.</p> <p>If a promissory note made in another State is sold here by the holder, who indorses it here, the contract is governed by the law of this Commonwealth, and, in an action on the note, by the buyer against such indorser, the law of the other State relating to usury is inadmissible in evidence.</p> <p>Where the indorser of a promissory note, who has not had due notice of the dishonor of the note, makes an unqualified promise to pay it, a waiver of such notice will be established, if, in an action on the note, there is evidence which will warrant a finding that he knew that no notice had been sent to him when the promise was made.</p> <p>It is not necessary, in an action against the indorser of a promissory note, to show that he knew that he was released from liability for want of due notice of the dishonor of the note. It is enough if lie knew the fact that no notice had been sent to him, without knowing the legal effect of such omission.</p> <p>In an action upon an agreement by the second indorser of a promissory note, made with the holder after its maturity, to pay interest thereon at a certain rate so long as the note should remain unpaid, there was evidence tending to show that the plaintiff, to whom the note was sold by the second indorser before maturity, and four months before the agreement sued on, agreed as a part consideration for such agreement to go to another State where the note was made, and undertake to bring suit against the maker and the first indorser, and use his best efforts to collect the note. Held, that evidence that, at the time the plaintiff bought the note, he kept it in his possession for several days, and agreed to look up the responsibility of the maker, and did so, and said that he was all right and he would take the note, was properly excluded.</p> <p>If the indorser of a promissory note executes, after its maturity, an agreement to pay the holder of the note interest at a higher rate than six per cent so long as the note shall remain unpaid, in an action for breach of the contract the plaintiff may recover the stipulated rate of interest to the time of the trial.</p> <p>Evidence of circumstances or of conversations between the holder and the second indorser of a promissory note after its maturity, which are equivocal in their character, and which do not import a clear admission of liability or amount to a distinct promise to pay, and are consistent with the view that the indorser was merely seeking to avoid or postpone a suit against himself, is not sufficient, in an action on the note, either to prove actual notice to him of the dishonor of the note, or a waiver of such notice; and a subsequent written agreement by him to pay the holder a certain rate of interest so long as the note should remain unpaid has no greater effect.</p> <p>That the indorser of a promissory note was ignorant of the fact that a demand for payment had been made upon the maker is immaterial, in an action against the former on the note; and the fact that he knew that he had received no notice of the dishonor of the note is sufficient to warrant a finding that he knew . that no notice had been given to him.</p>

<p>French Spoliation Claims — Distribution of Money — Next of Kin — Statute.</p> <p>Next of kin under the U. S. St. of March 3, 1891, § 4, (26 U. S. Sts. at Large, 862, 908,) are not to be determined as of the time of the testator’s death with a limitation upon their rights, and with a right by succession and representation in their descendants living at the date of the act of Congress, but are to be determined as of the date of the act, in view of their relationship to the deceased person, without reference to the time when he died. Allen, J., dissenting.'</p>

<p>Appeal to the Superior Court, from the decision of the respondents, on a petition for an abatement of taxes assessed upon the petitioner’s property in Williamstown. Trial, without a jury, before Maynard, J., who found ,for the petitioner; and the respondents alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in September, 1896, and afterwards was submitted on briefs to all the judges except Barker, J.</p>

<p>Tout, for personal injuries occasioned to the plaintiff by the breaking of one of the steps of an uncovered outside staircase leading from the street into a building owned by the defendant, one tenement in which was occupied by the plaintiff, and the staircase being used in common by all the tenants of the building, it being the only entrance from the street into the house. Trial in the Superior Court, before Dewey. J., who, at the close of the evidence, directed the jury to return a verdict for the defendant; and reported the case for the determination of this court. If such direction was right, judgment was to be entered for the defendant; otherwise, the verdict was to be set aside and a new trial ordered. The facts appear in the opinion.</p>

<p>Contract, to recover the amount of an assessment upon the defendant for the expense of filling his land in the plaintiff city, under the provisions of St. 1890, c. 59. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p> <p>The case was argued at the bar in November, 1896, and after-wards was submitted on briefs to all the judges.</p>

<p>Tax — Abatement — Sufficiency of List — Return —■ Estoppel — Statute — Method of Valuation.</p> <p>A list filed with the assessors of a city by a corporation owning a yarn and cloth mill, having the machinery commonly found in such a mill, describing under the head of real estate the mill buildings and machinery as “ One stone mill and cloth room with water power, 21,744 mule spindles, 21,952 ring frame spindles,” if the word “ spindles ” used in this relation signifies the capacity of the mill and includes all the machinery and appliances necessary to operate the mill, and the meaning of this word is understood by the assessors, who ask for no further or fuller statement, is a sufficient compliance with Pub. Sts. c. 11, § 72.</p> <p>If a manufacturing corporation, upon a petition for the abatement of a tax assessed to it, can in any event be estopped from contending that the valuation put upon its property is excessive, it can be only where the petitioner has made representations of the value of its property to the assessors, with the intention that they should act on them in making the valuation, and the assessors have been misled thereby.</p> <p>The machinery intended to be assessed under Pub. Sts. c. 11, § 20, cl. 2, providing that “ all machinery employed in any branch of manufactures shall be assessed where such machinery is situated or employed,” is not necessarily machinery which has been affixed to land in such a manner as to become a part of the real estate.</p> <p>Where the whole manufacturing plant of land, buildings, and machinery belonging to one corporation, and locally taxable, are of more value if kept together and used for mill purposes than if the machinery is removed from the buildings, or the buildings with the machinery are removed from the land, each of these items should be valued for taxation as it is used in its connection with the others.</p>

<p>Discretion of Single Justice — Issues to Jury— Probate Appeal — Adoption.</p> <p>The order of a single justice, denying in his discretion a motion to frame issues for a jury in the case of an appeal from the decree of a Probate Court which relates to a former decree of that court, fixing the status of two persons as respectively a son and a daughter of another by adoption, will not he reversed, if the discretion was rightly exercised.</p>

<p>Coetract, to recover the amount of a bank check for $163.30, signed by the defendant Weston and indorsed by the defendant Sherrick, dated March 19, 1895, payable to the order of ' the Natick National Bank, and by it indorsed to the plaintiff.</p> <p>At the trial in the Superior Court, before Mason, C. J., the plaintiff contended that the check was given in payment of a claim which he held against the defendant Weston, to secure the payment of which he held a lien on certain horses and a dog, which were delivered up on the acceptance of the check.</p> <p>The defendants set up in their answer, that the “ plaintiff claimed to have boarded, stabled, and broken said horses and dog, and charged for such board, stabling, and breaking an exorbitant and unreasonable price, and refused to deliver said animals to said Weston unless the sum so claimed by him was paid, . . . and the said Weston, denying said liability, and under protest, made the check as alleged in the plaintiff’s declaration, and obtained from said plaintiff said animals as aforesaid.” The answer also set up want of consideration.</p> <p>The defendants admitted that they signed and delivered the check, and obtained the property mentioned therefor, and that the plaintiff claimed at the time to have a lien thereon, as set forth in his declaration, but denied that he had such lien. The judge ruled that, under the defendants’ answer and admission, there remained no legal ground of defence, and directed the jury to return a verdict for the plaintiff for the amount of the check; and'the defendants alleged exceptions.</p>

<p>Contract, for breach of a written agreement, in refusing to accept 252 bales of Manila hemp.. Trial in the Superior Court, without a jury, before Fessenden, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiffs are a firm doing business in New York under the name of Morewood and Company, and the defendants are a firm doing business in Boston under the name of Aaron D. Weld’s Sons.</p> <p>On or about March 16, 1893, the plaintiffs and the defendants entered into a contract, through one John Lund, a broker in hemp then carrying on business in New York under the name of W. S. Daland, and then in the employ of the plaintiffs. Lund acted as agent for both parties in signing the contract. The material part of the contract, which was signed by “ William S. Daland, Broker,” was as follows:</p> <p>“ Sold for account of Messrs. Morewood & Co., Agents for Warner Blodgett & Co., Manila, to Aaron D. Weld’s Sons, Agents, Boston, Mass., (1000) one thousand bales WLB Leyte Manila Hemp. No red hemp. To arrive at the Port of New York, to be shipped at Manila per sailing vessel or vessels direct to New York or via Hong Kong during the months of April &/or May, 1893. Name of vessel or vessels to be declared by sellers when known.”</p> <p>Manila is situated on the west coast of the island of Luzon, one of the Philippines, and Hong Kong is on the southeast coast of China and 650 miles north-northwest from Manila. The usual course of sailing vessels from both places to New York is southerly through the Straits of Sunda, between Sumatra and Java. The length of the voyage by sailing vessel from either place to New York is usually about the same, namely, from four to five months.</p> <p>At the date of the making of this contract there were one or more regular lines of steamers running betxveen Manila and Hong Kong, sailings from Manila to Hong Kong averaging ten per month ; and there was usually a general ship at Hong Kong lying at her berth and bound direct for New York. At this time, it would not have been according to the usual course of trade for sailing vessels at Manila bound for New York to proceed by way of Hong Kong; and when goods were sent from Manila to New York by way of Hong Kong it was the usual practice to send them to Hong Kong by steamer. These facts were known to both parties at .the time the contract was made.</p> <p>After the making of this contract Warner Blodgett and Company shipped at Manila on the sailing ship El Capitan, which on May 5, 1893, sailed from Manila direct to New York, 748 bales of hemp for delivery to the defendants under the contract, which hemp arrived at New York on September 15, 1893, and was accepted and paid for by the defendants. On May 29,1893, Warner Blodgett and Company put on board the steamship Zafiro at Manila 252 bales of hemp of the quality called for by the contract for.delivery to the defendants thereunder, and received therefor a bill of lading. The Zafiro left Manila for Hong Kong on May 31, 1893, with this hemp on board, and arrived at Hong Kong on June 3, 1893. On June 5, 1893, the hemp was shipped on board the sailing ship Iron Duke, then lying at Hong Kong and bound for New York, and a bill of lading was taken therefor. Two hundred and fifty-two bales of hemp woujd not be sufficient to load sailing vessels such as are employed in the trade between Manila and Hong Kong and New York.</p> <p>The Iron Duke sailed from Hong Kong oh July 2, 1893. On July 15, 1893, and as soon as the name of the Iron Duke was known to the plaintiffs, they wrote to Lund as follows: “ We are advised by Messrs. Warner Blodgett & Co., Manila, that the remaining 252 Bales Hemp (of the 1000 Bales) sold to Messrs. Aaron D. Weld’s Sons, on the 16th March, had been shipped to Hong Kong, for transshipment to ship Iron Duke.”</p> <p>The defendants were duly notified by the broker of the contents of this letter. It was in accordance with the usual practice in this trade to declare the name of the vessel, as provided in the contract of March 16, 1893, to the broker. The Iron Duke arrived at New York on February 8, 1894. Upon her arrival the plaintiffs notified Lund that they proposed to deliver the hemp to the defendants in performance of the contract, and on the next day the defendants wrote to the plaintiffs as follows: “We are advised by Mr. Daland that the Iron Duke has arrived with 252 bales in completion of contract made March 16fch. Parties for whom wre made that contract advise they do not think this 252 bales were on board sailing vessel in April or May either in Manila or Hong Kong, and if so, under the contract, this is not a good delivery, and they must decline to receive the same.”</p> <p>This letter was followed by a correspondence between the parties, extending through the month of February, in which the plaintiffs insisted that the shipment of the hemp was in accordance with the contract, and the defendants contended that the delivery was not a good one under the contract and declined to accept the hemp.</p> <p>The average time for loading a general sailing ship at Manila or at Hong Kong bound for New York is from thirty to sixty days, according to the size of the vessel.</p> <p>The defendants knew in September, 1893, the date of the sailing of the Iron Duke from Hong Kong; and they had reason to suppose, some time in October, 1893, that the hemp in controversy had been put on board her at Hong Kong in June, 1893, though they did not absolutely know this until shortly before her arrival in New York.</p> <p>It further appeared that on February 28, 1894, the plaintiffs sold the hemp in New York for the account of the defendants; and the market price thereof having fallen below the price named in the contract, the loss thereon was $1,173.46, which, with interest thereon from that date, the parties agreed were the damages which the plaintiffs were entitled to recover of the defendants in this action, if they were entitled to recover anything.</p> <p>Upon the foregoing facts, the plaintiffs asked the judge to rule as follows:</p> <p>“ 1. On all the evidence the finding must be for the plaintiffs.</p> <p>61 2. The terms of the contract with regard to shipment were satisfied if the hemp was shipped from Manila in May, 1893, and was transshipped and placed on board a sailing vessel at Hong Kong bound for New York, which the plaintiffs had reason to believe would sail within a reasonable time after shipment.</p> <p>“ 3. A delay of a month in the sailing of the Iron Duke was not an unreasonable delay in view of the evidence.</p> <p>“4. The defendants, as matter of law, have waived their rights to insist that the sailing of the Iron Duke was an unreasonable time after the shipment, and that shipment should have been made from Manila to Hong Kong by sailing vessel.”</p> <p>The judge declined so to rule, and found for the defendants.</p> <p>If the judge erred in the finding, or in the refusal to rule as requested, the finding was to be set aside and a new trial ordered; otherwise, judgment was to be entered on the finding.</p>

<p>Estate of Person Deceased— Statute of Limitations — New Assets.</p> <p>A reversionary interest in property conveyed to trustees for the benefit of creditors, which, at the time of the debtor’s death and long afterwards, is supposed to be of no value, and, although known to the administrator and to a creditor whose claim arose after the conveyance, is not included in the inventory of his estate, but which eleven years subsequently turns out to be more than sufficient to pay the creditor’s claim, may be found to be new assets, within Pub. Sts. c. 136, § 11, in an action brought by the creditor nearly twelve years after the administrator gave bond, and within the time limited by the statute.</p>

<p>Personal Injuries—Railroad — Master and Servant — Action.</p> <p>A brakeman in the employ of a railroad corporation, who is experienced and has been working on the same road for a year, and who, while ascending the side ladder of a moving freight car in the discharge of his duty in the daytime, is injured by coming in contact with another car standing on a side track which was parallel with the main track, and which he could have seen, although he testifies that he did not think of looking, neither car differing in width or otherwise from ordinary box freight cars, cannot maintain an action against the corporation for his injury, if there has been no change in the position of either track since his employment.</p>

Motion to DISMISS. In the Police Court of the city of Springfield the respondent was found not guilty, and ordered to be discharged on a complaint under the bastardy act, Pub. Sts. c. 85; and the complainant appealed. The Superior Court allowed the respondent’s motion to dismiss the complaint; and the complainant appealed to this court.

<p>Contract— “ Permanent Employment ” — Statute of Frauds — Restraint of Trade — Pleading — Law and Fact. '•</p> <p>In an action for breach of an oral contract of employment, there was evidente tending to show that the defendant agreed that, if the plaintiff would give ujr his business, whicli was that of an enameller, and enter his service in the same', occupation, he would furnish him with “ permanent employment ” at stipulated \ wages ; and that the plaintiff gave up his business and entered the defendant’s ' employ and continued therein several months, receiving wages at the.' rate agreed, when the defendant suspended his employment and finally ceased altogether to employ him, although he had work of the kind which the plaintiff was to do. Held, that the contract was sufficiently definite to be capable of enforcement ; and that it was not within the statute of frauds.</p> <p>A contract to give up one’s-business and enter the service of another, who agrees to give him “ permanent employment ” in the same occupation, is not unlawful as being in restraint of trade.</p> <p>Where tlie declaration in an action is not demurred to, although the answer raises certain objections to it, the defendant is not entitled, at the close of the evidence, to have the jury instructed that the action cannot be maintained on the declaration, if it is not fatally defective.</p> <p>Whether an oral contract of employment was waived or annulled is rightly submitted to the jury, as a question of fact, in an action for breach of the contract.</p>

<p>Personal Injuries — Negligence — Question for Jury — Evidence of Average Monthly Earnings.</p> <p>In an action for personal injuries occasioned to the plaintiff by a runaway horse, there was evidence that the horse was left standing close behind a wagon, and, it would seem probable, caught its bridle on a T-shaped handle of a door in the rear of the wagon, pulled its bridle off, and started on a run. It also appeared that there was no weight attached to the horse at the moment of the accident. Held, that it could not be said that the jury were not warranted in finding the defendant negligent.</p> <p>In an action for personal injuries, evidence of the plaintiff as to his average monthly earnings is admissible to show the value of the time lost by him.</p>

<p>Bill in equity, filed April 7, 1896, for the specific performance of a written agreement to purchase an estate, “ conveyance to be made by a good and sufficient quitclaim deed giving clear title and free from all encumbrances, . . . title to be good or sale void.” Hearing before Allen, J., who reported the case for the determination of the full court. The facts appear in the opinion.</p>

<p>Intoxicating Liquors — Illegal Keeping and Sale — Law and Fact.</p> <p>At the trial of a complaint for maintaining a tenement used for the illegal keeping and sale of intoxicating liquors, if there is evidence that wine manufactured in this Commonwealth from grapes grown here and seized on the premises of the defendant, who was the manufacturer’s agent, had been reinforced with distilled spirits, that the wine delivered to the defendant by his principal had not been so reinforced when so delivered, and that the defendant kept in his premises material for such reinforcement, it is a question for the jury whether such reinforcement by the defendant has in fact been shown.</p> <p>At tlie trial of a complaint for maintaining a tenement used for the illegal keeping and sale of intoxicating liquors, there was evidence that the premises were fitted with a bar, glasses, etc., and non-intoxicating drinks were sold there; that the defendant was the agent 'of a manufacturer in this Commonwealth of wine from grapes grown here; that wine in different sized bottles, each labelled as “ pure native wine,” seized on the premises, had been reinforced with distilled spirits; that the wine delivered to the defendant by his principal had not been so reinforced when so delivered; that the defendant kept in his premises material for such reinforcement; that an empty bottle similar to the bottles seized and containing only dregs was found on a shelf under the bar ; and that, on one occasion, a drunken man was seen coming out of the premises, but was not seen going in. Held, that the judge rightly refused to rule that there was no sufficient evidence to warrant a conviction.</p>

<p>Personal Injuries — Defective Highway — Due Care — Law and Fact.</p> <p>It cannot be said, as matter of law, that a person who, although he knew that there was ice on the sidewalk in a town, passed over it for a distance of twenty feet until he reached a place where it was more dangerous, was not in the exercise of due care in determining to proceed instead of going back or attempting to cross the street, but it is a question for the jury in an action against the town for injuries sustained by falling on the ice at such place.</p>

<p>Contract, upon four promissory notes and two instruments of guaranty. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the admission of evidence, the nature of which appears in the opinion.</p>

<p>Equity Practice — Findings of Master — Boundary — Decree for Removal of Building — Damages.</p> <p>If the rulings of a master upon the admission or exclusion of evidence, even if wrong, did not materially affect his findings, exceptions to such rulings become immaterial.</p> <p>In a suit growing out of a disputed boundary, if the documentary and oral evidence fails to show where the boundary line was, the master may rely upon the occupation of the land as evidence of the practical construction put by the parties upon their respective deeds, or of prescriptive right.</p> <p>Where buildings are found to have been so placed by the defendant in a suit in equity for their removal as to occupy a small portion of the plaintiff's land, if they in no way interfere with the use, enjoyment, or value of the plaintiff’s remaining land, although one of them was erected after the suit was begun, the plaintiff is not entitled as of right to a decree for their removal if he can be fully compensated in damages.</p>

<p>Petition, filed September 15,1896, for a writ of certiorari, to quash the proceedings of the county commissioners of the county of Worcester in undertaking to revise a refusal or neglect of the city council of the city of Worcester to lay out a public way. The respondents filed an answer in the nature of a demurrer, which averred that the allegations of fact contained in the petition were true, and that they had jurisdiction of the parties and the subject matter therein referred to, and that their action in the premises was warranted by law.</p> <p>Field, C. J. reserved the case, at the request of the parties, for the consideration of the full court.</p> <p>The case was argued at the bar in October, 1896, and after-wards was submitted on briefs to all the judges.</p>

<p>Insolvent Debtor — Evidence — Tax — Subrogation.</p> <p>If a mortgage of land, providing that the mortgagor or those having his estate in the premises shall pay the taxes upon it, is foreclosed under a power of sale therein, a statement made at the sale by the assignee in insolvency of the mortgagor, that a tax assessed on the land liad been or would be taken care of from the insolvent estate, upon the strength of which statement the land is bought, is admissible in evidence at the trial of an appeal from the disallowance of a claim presented against the insolvent estate for the amount of the tax paid by the purchaser, upon the assignee’s refusal to pay it, to prevent a sale for the tax.</p> <p>The purchaser at a sale of land under the foreclosure of a mortgage, who buys upon the strength of the statement by the assignee in insolvency of the mortgagor, that a tax assessed on the land had been or would be taken care of from the insolvent estate, and who subsequently pays the tax, upon the assignee's refusal to do so, to prevent a sale therefor, is entitled to be subrogated to the right of the town to prove the tax in insolvency as a privileged claim.</p>

Appeal by the father of John L. Baber, who died intestate without issue living at the time of his decease, from a decree of the Probate Court assigning to the petitioner, the widow of the intestate, his real estate to an amount not exceeding five thousand dollars in value. The respondent was in possession of the real estate as tenant by the curtesy, and the only interest of the intestate at the time of his decease was a reversion.

<p>Contract upon the following agreements, dated October 25, 1892 :</p> <p>“ To H. J. Langley: I hereby agree to build and erect for you in Oak Grove Cemetery for the estate of California A. Davol one monument as per plans and specifications submitted to me, for the sum of thirteen hundred and fifty dollars. Patrick J. Durkin.”</p> <p>“ I hereby accept your proposition to build for the estate of California A. Davol one monument all to be erected in Oak Grove Cemetery for the sum of $1,350. H. J. Langley.”</p> <p>At the' trial in the Superior Court, before Bishop, J., it appeared that the action was for $1,185, the balance alleged to be due the plaintiff, who contended that Pub. Sts. c. 144, § 6, authorized the executor to expend out of the estate of the testatrix a reasonable sum for the articles furnished; and it was agreed that the amount of the bill was, under the circumstances, reasonable.</p> <p>By her will, California A. Davol devised to “ Henry J. Langley fifteen shares of the Narragansett Mill stock, to be expended by .him in the erection of a monument on my lot in Oak Grove Cemetery.” These fifteen shares, which amounted in value to more than the bill sued for, were, in December, 1891, transferred by Langley to himself as executor; and on or about May or J une, 1893, were sold and disposed of by him to other parties.</p> <p>The defendant set up in his answer, and asked the judge to rule, that, if he owed the plaintiff the amount declared on, the same was due to the plaintiff, not from the estate of California A. Davol nor from the defendant as executor of her will, but from the defendant in his individual capacity. The judge refused so to rule; and the defendant excepted.</p> <p>The jury found for the plaintiff for the amount of the bill; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in October, 1896, and after-wards was submitted on briefs to all the judges.</p>

Contract, for expenses incurred in the care of a pauper alleged by the plaintiff to have had a settlement in the defendant town. The case was submitted to the Superior Court, and, after judgment for the defendant to this court, on appeal, upon agreed facts, in substance as follows.

<p>Replevin— Title — Burden of Proof—Law and Fact.</p> <p>In an action of replevin, the burden is on the plaintiff to. establish his title to the property replevied, and if he introduces evidence tending to show that he acquired by purchase the title of a lessor of the property, and there are also circumstances in evidence which are consistent with the theory of the defendant, who was a mortgagee of the property subject to the lease, that the payment made by the plaintiff to the lessor was in the interest of the lessee, it is for the jury to say whether the plaintiff has sustained the burden of proof.</p>

<p>Personal Injuries — Master and Servant—•Action — Employers’ Liability Act.</p> <p>The temporary dampness of moulds in a foundry, which can be ascertained only at the moment of setting them up, and which causes an explosion when melted iron is poured into them,injuring the servant engaged in the act, is not a defect in the machinery of the foundry which will sustain an action against the master for the injury, either at'common law or under the employers’ liability act, St. 1887, c. 270.</p> <p>The dampness of moulds in a foundry, which were set up by a superintendent, caused an explosion when melted iron was poured into them, injuring the servant engaged in the act. He asked the superintendent if the moulds were all right, and the latter replied, “ Yes, go ahead, Bob.” Held, in an action for the injury, that the superintendent was not, in either instance, “ exercising superintendence,” within the meaning of the employers’ liability act, St. 1887, c. 270, so as to render the master liable for his negligence.</p>

<p>Loss of Life — Employers’ Liability Act — Master and Servant — Negligence — Action.</p> <p>The fact that some of several dynamite cartridges, used in blasting rock by being placed in a series of holes drilled in the rook and discharged by an electric battery, remain undischarged after a blast and subsequently explode and injure a workman while trying to withdraw them, is not a defect in the “ ways, works, or machinery ” of his employer, within the meaning of the employers’ liability act, St. 1887, c. 270, § 1, cl. 1.</p> <p>The employers’ liability act, St. 1887, c. 270, § 2, gives a right of recovery whenever a person is instantly killed or dies without conscious suffering as the result of any negligence of the employer himself, but does not give the right when a death occurs from the negligence of an employee, unless the negligence is of a kind that would subject the employer to a liability under § 1, if the deceased person had been injured and had survived.</p> <p>A. was employed in B.'s quarry, where the rock was blasted by means of placing dynamite cartridges in holes drilled in the rock and discharging them by an electric battery. He had worked there and in another quarry about five years, and was familiar with the use of such cartridges. On one occasion, several of the cartridges failed to explode after a blast, and A. undertook to remove them. He remarked to B. that he had got the cap and one of the cartridges, and that there were two or three more in the hole which were frozen, and he could not get them out. B. told him to get some hot water and pour it into the hole, and also advised him to inquire of C., who, although not a foreman, had had an experience of several years in the use of these cartridges, and knew better than B. how to use them ;°and C. told A. to get some hot water, put it in the hole, and let it thaw out gradually. A. poured the hot water in the hole, and, about fifteen or twenty minutes later, put an iron spoon into the hole, when an explosion followed, and he received injuries which resulted in his death. Held, that an action therefor against B. under the employers’ liability act, St. 1887, c. 270, could not be maintained.</p>

<p>Tort, for personal injuries occasioned to the plaintiff on January 18,1895, by an alleged defect in a highway in the defendant city, caused by an accumulation of snow and ice. Trial in the Superior Court, before Mason, C. J„ who directed a verdict for the defendant; and the plaintiff alleged exceptions, the nature of which appears in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff’s intestate on January 1, 1897, by an alleged defect in a highway in the defendant city, caused by an accumulation of ice and snow. The intestate died on January 14, the plaintiff was appointed administratrix on February 26, and a sufficient legal notice of the time, place, and cause of the accident was served on the defendant on February 27.</p> <p>Trial in the Superior Court, before Mason, C. J., who ruled that the plaintiff was not entitled to recover on account of the failure of her intestate to give notice within the ten days, as required by Pub. Sts. c. 52, §§ 19, 21, and St. 1894, c. 422, and directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>The following order was adopted by the House of Representatives on January 27, 1897, and thereupon transmitted to the Justices of the Supreme Judicial Court, who on</p> <p>returned the opinion which is subjoined.</p> <p>Ordered, That the opinion of the Justices of the Supreme Judicial Court be required upon the following important question of law, namely:</p> <p>“Is a county commissioner an officer of the Commonwealth within the meaning of Article VIII. of Section 2 of Chapter I. of the Constitution, and is a county commissioner subject to the impeachment process provided by the Constitution ? ”</p>