Volume 168 — Massachusetts Reports

<p>Personal Injuries — Loss of Life — Defect which Employee ought to have known — Law and Fact—Expert.</p> <p>At the trial of an action against a street railway company for causing the death of a motorman, it appeared that when the electric car upon which he was employed had reached its destination the conductor went to the other end, shifted the trolley and pushed in the fender, and that the motorman took off the motor handles and gong tapper and went to the end which was now the front of the car, and was seen to stoop down and take hold of the fender. Shortly after the car started, and he was caught under the wheels and fatally injured. The cause of the starting was wholly uncertain. Held, that the case was rightly taken from the jury.</p> <p>The finding of a judge presiding at the trial, that a witness was not qualified to express an opinion, is not open to revision by this court, the examination of the witness not having been reported.</p>

<p>Assault and Battery— Evidence.</p> <p>In actions for an assault and battery, one by A. against B., and the other by B. against A., which were tried together, B. testified that A. struck him when he was down, and during the altercation between them a crowd collected; and that, while A. was on top of his back, C., a bystander, asked him to get oif and let B. alone. Held, that the evidence was rightly admitted.</p>

Contract, for breach of an agreement to sell a certain quantity of coal. Trial in the Superior Court, without a jury, before Blodgett, J., who found for the defendants; and the plaintiffs alleged exceptions. The facts material to the point decided appear in the opinion.

Petition to the Superior Court, under Pub. Sts. c. 52, §§ 15, 16, for a jury to assess the damages caused to the petitioners by lowering a highway in the respondent town. At the trial, before Fessenden, J., the jury returned a verdict for the respondent; and the petitioners alleged exceptions. The facts appear in the opinion.

<p>Action— Construction of Contract under which Pupil was placed in Boarding School.</p> <p>If B. refuses to allow A.’s daughter to remain longer in B.’s boarding school unless A. will accept B.’s construction of the contract under which A. placed her daughter as a pupil in the school, which construction is correct, that the officers of the school have absolute discretion to determine when a pupil shall be permitted to be absent, and A. refuses to accept this construction and takes her daughter away, she cannot maintain an action against B. to recover the money which she has advanced for a'half year’s board and tuition.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to the plaintiff while in the defendant’s employ.</p> <p>At the trial in the Superior Court, before Lilley, J., it appeared in evidence that the plaintiff, while employed in the paint shop of the defendant, was engaged with one Hadley, the alleged superintendent, in shifting a car to the elevator for the purpose of taking it out of the shop; that Hadley was operating the car as a motorman, while the plaintiff held and managed the trolley rope; and that, by the movement of the car, the plaintiff was caught between it and the side of the building.</p> <p>In the discussion of a request of the defendant that the judge direct a verdict for the defendant, there was a dispute as to what the plaintiff had testified about Hadley’s moving his hands while the plaintiff was in front of the car, the plaintiff’s attorney claiming that the plaintiff had testified that Hadley moved his hands and the brake and reverser, and ran the car on to the plaintiff. But on reading the stenographer’s report of the evidence, it was found that he had not so testified. Thereupon the plaintiff’s attorney asked to reopen the case, and place the plaintiff upon the stand, for the reason that the attorney had misunderstood the answer. The judge refused the request, and the plaintiff excepted. At the request of the defendant, the judge directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Personal Injuries — Master and Servant — Action.</p> <p>If a servant of A. is sent by his master to repair machinery belonging to B., who directs him what to do, and while so engaged he is wholly under the control of B., although the latter relies largely upon his skill and experience, he is for . the time the servant of B., and not of A., and if through his negligence another servant of B. is injured, an action for such injury cannot be maintained against A.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the shop of the defendants. Trial in the Superior Court, before Mason, C. J., who directed the jury to return a verdict for the defendants; and the plaintiff alleged exceptions. The facts sufficiently appear in the opinion.</p>

Action on Pub. Sts. c. 175, to recover possession of certain premises in Brookline.

<p>Tort, under Pub. Sts. c. 102, § 93, to recover double the amount of the damage sustained from the bite of a dog. At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the exclusion of evidence, the nature of which appears in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff on April 24, 1894, while entering the defendant’s station in Boston for the purpose of becoming a passenger on one of its trains, by the alleged negligence of the defendant in the management of the entrance to the station. Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared in evidence that, in going to the station of the defendant, the plaintiff entered through a porch which was connected with one of the entrances of the station and was about twelve and a half feet wide and about fourteen feet in length; that then she stepped up one step into a passageway, which was about forty feet long and twelve feet wide, having on its right hand side the men’s waiting room, with an entrance thereto about twenty-six feet from the step between the porch and the entry, and in the rear of the waiting room a toilet room connecting therewith ; that on the left of the entry there was a general waiting room for passengers, with doors leading thereto about opposite to the door to the men’s waiting room; that at the extreme end of the entry was a barber’s shop with a door opening into the entry; and that there were swinging doors in the entry about seventeen feet from the entrance to the men’s waiting room.</p> <p>The plaintiff testified that, while she was passing along the entry and between the outer entrance and the swinging doors across the entry, and after she had gone a few feet, she saw a colored man and a white man coming through the swinging doors; that the colored man had the white man by the shoultiers, and was pushing him through the swinging doors; that she turned into the left close to the building, and thought they would have plenty of room to pass her, but they hit her on the side and she fell, receiving the injuries complained of; that they were coming pretty fast; that the colored man helped her up, and said that the white man was drunk ; that she was helped to the waiting room for ladies, and took the train for home ; that she had seen this colored man in the station several times before, and that she should think he was dressed in working clothes, “sometimes with blue clothes on”; that she had seen him one day sweeping out the entrance, and did not remember that she had ever seen him do anything else; and that she had travelled over the defendant’s road for fifteen years, and had passed through this passageway a great many times.</p> <p>Walter Paige, called as a witness by the plaintiff, testified that, during the year prior to the accident, he came to Boston from Stoneham about once a week, arriving at the defendant’s station; that he had seen in April, 1894, before the accident, a colored man in the men’s room, whom he identified in the court room as the person referred to in the plaintiff’s testimony; that he had seen him cleaning the men’s waiting room, polishing boots, and speaking occasionally to people in the seats, who, after he had talked with them, would sit up straighter or go out of ;the room, and his best recollection was that he had seen him put his hands on them and give them a shake and wake them up ; that he spoke to them when in the act of waking them up, but he did not know what he said; and that he did not remember ever seeing him try to pull these men out of their seats, or lead anybody out.</p> <p>Frank E. Trask, a witness called by the plaintiff, testified that he was a police oificer of the city of Boston, and in April, 1894, and for about twelve years before that, his beat was in the vicinity of the defendant’s station; and that while he was about that station he was acquainted with the colored man in question. He was asked what he had seen this colored man do during the two years prior to April, 1894, and he answered, “ He was cleaning the gents’ waiting room and the gents’ toilet room attached to the same. I have seen him go into the closet and wake men up and have conversation with them, and in consequence of that conversation the men went out. I never saw any acts on his part other than shaking them up and waking them up.” He further testified that the colored man would hold the closet door open for them to go out, and sometimes acted as agent for the witness in that matter; that he never saw him eject anybody; and that he could not say that he ever had seen him go to the door with these people.</p> <p>Leonard S. Bean, called as a witness by the defendant, testified that he had been station agent at this station for about ten or twelve years; that he' hired this colored man, whose name was Warren, a year or two before April 24, 1894, and employed him to clean the men’s toilet; that he was carried on the pay roll as “Cleaning of the gents’ toilet”; that nobody had any authority to give him instructions aside from himself, unless it might be one of the witness’s superior officers, but he never knew of instructions being given him other than . what he gave himself; and that all the duties he was told to perform were to keep the men’s waiting room and toilet clean and in proper condition. He was then asked whether there was anything else that he employed Warren to do, or instructed him to do; and he answered, “ I told him, when men got in the closets there asleep and loafing, to wake them up, and also in the gents’ waiting room.” He testified further, that, if they did not go out, Warren’s instructions were to call the officer in front, one of the city officers, or one of the special officers or police of the railroad who were stationed at the gate; that he never saw Warren removing anybody from the station; that he never saw him lay hands upon anybody except to wake them up; and that, prior to April, 1894, he never knew or heard that Warren ever laid hands on people to eject them from the station.</p> <p>On cross-examination, the witness testified that it was a part of Warren’s duty to keep the men’s waiting room and closet clear from loafers.</p> <p>It was not disputed that, at the time of the accident, the station referred to was under the defendant’s control; and that the plaintiff was in the exercise of due care.</p> <p>At the close of the evidence, the defendant asked the judge to rule that the action could not be maintained, and to direct the jury to return a verdict for the defendant, which the judge refused to do ; and the defendant excepted.</p> <p>•The judge submitted the following questions to the jury :</p> <p>“ 1. Did the defendant use reasonable care in the management of the passageway ?</p> <p>“2. Was the defendant’s servant, Warren, acting within the scope of his employment in ejecting the other man?”</p> <p>The jury answered the first question in the negative, and the second question in the affirmative, and returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tort, by the assignee in insolvency of George W. Kendrick, .for the conversion of certain hay which had been cut in the summer of 1891 by Kendrick from the farm of the defendant and a neighboring farm of one Fairbanks in the town of Harvard, and placed in the defendant’s barn on his farm, Kendrick being at the time a tenant at will of the defendant.

<p>Breach of Contract — Finding — Domicil — Discharge in Insolvency.</p> <p>If a case comes to this court on exceptions, with a report of the evidence, consisting of the testimony of witnesses at two former hearings, the first of which was before the same judge who sat in the final hearing, at which no witness testified orally, but the testimony taken at the former hearings was read to him, the evidence before him cannot be treated as merely documentary, and the questions before this court are whether his findings of fact were warranted by the evidence, and whether his conclusion of law therefrom was right.</p> <p>Evidence that a foreigner, who was a teacher of music, came to this Commonwealth under a .contract made in another State, and rendered services thereunder for several months, until the contract was broken by the other party, for which breach an action was brought immediately; thaf, with the exception of two intervals of three and four months respectively, when he was out of the Commonwealth, he remained here until the trial, twenty months after the action was begun, returning after his first absence by the advice of counsel on account of the litigation, and giving music lessons during his whole stay here; and that, according to his testimony, when he first came here he intended, after finishing his contract, to remain here if he could establish a good business, and if he could not to return abroad, will warrant a finding that he had not made up his mind to make this Commonwealth his permanent place of abode, or to change his domicil; and his claim is not barred by a discharge in insolvency obtained after the action was brought.</p>

<p>Contract, for the balance of the salary due the plaintiff as president of the defendant corporation for a part of the month of May and for all of the month of June, 1895, and for his commissions on certain sales made from January 1 to July 1,1895. Writ dated July 26,1895. At the trial in the Superior Court, without a jury, before Sheldon, J., it appeared that the plaintiff was paid his salary for the first four months of 1895 on the basis of two thousand dollars for the year, and that one hundred dollars was also paid to him on account of his salary for the month of May. The judge found for the plaintiff in the sum of $453.27; and the defendant alleged exceptions, the nature of which appears in the opinion.</p>

<p>Contract, for breach of warranty in the sale of a building in Boston. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for injuries occasioned to the plaintiff’s person and bicycle by being run over by a pair of horses attached to a hack and driven by the defendant’s servant.</p> <p>The declaration was as follows: “ And the plaintiff says that on the thirtieth day of May, 1895, while riding his bicycle on Mount Auburn Street in the city of Cambridge, in this Commonwealth, and while in the exercise of due care, he was run over by the defendant’s horses and carriage, negligently driven by a servant of the defendant while acting in the scope of his employment. Whereby the plaintiff was severely injured, made sick, put to great expense and loss of time, and whereby his bicycle was demolished.”</p> <p>The defendant demurred to the declaration, assigning as grounds therefor that it set forth no cause of action in law against the defendant; that it nowhere averred that the alleged injuries were incurred by reason of any fault or negligence or tortious act of the defendant, or for which the defendant was liable; that it nowhere averred that the alleged servant of the defendant was engaged at the time upon the defendant’s business ; and that, if it stated any cause of action, it joined in one count two separate and distinct grounds of action.</p> <p>Not waiving the demurrer, the defendant filed an answer setting up a general denial and want of due care on the part of the plaintiff.</p> <p>In the Superior Court the demurrer was overruled, and the plaintiff appealed. Trial before Blodgett, J., who, in instructing the jury on the matter of damages, ruled, among other things, that, if the plaintiff was entitled to recover at all, he was entitled to compensation for the wages actually lost by him through his inability to work at his trade on account of the injuries sustained by him through the negligence of the defendant’s servant. To this ruling the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for causing the death of the plaintiff’s husband, Stephen L. Willey, while in the defendant’s employ. At the trial in the Superior Court, before Blodgett, J., the jury .returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>City— Contract—Vote of Council — Authority of Committee.</p> <p>A city council passed a vote, purporting to authorize a committee to advertise for bids and to award the contract for the equipping of the city with a system of electric signals. The committee advertised for bids, and passed a vote to award the contract to A., who was the lowest bidder, “ providing that the city government provide the committee with ” a sum named “ to purchase the system,” and made a report to that effect, which was accepted by both branches of the city council.- Held, in an action by A. against the city for breach of the alleged contract, that the power of the committee was exhausted by its action; and that, the city government never having provided the sum to purchase the system, no contract was made by the vote.</p>

<p>Personal Injuries — Landlord and Tenant—Negligence — Evidence — Law and Fact.</p> <p>An action may be maintained against the owner of a tenement house, having a cellar staircase used in common by all the tenants, for injuries sustained in consequence of the stairs giving way as a tenant was passing over them, the probable cause of which was that a contractor employed by the landlord to deepen the cellar had removed the earth which supported the staircase; and the plaintiff’s assent to the question, on cross-examination, “Did not exercise the slightest care ? ” does not warrant the conclusion, as matter of law, that he was negligent.</p> <p>In an action against a landlord for personal injuries sustained by his tenant, while passing over a cellar staircase, in consequence of its collapse, caused by the fact that a contractor employed by the landlord to deepen the cellar had removed the earth which supported the staircase, no exception lies to the exclusion of the question to the contractor whether the defendant had any control over the contractor’s men, the defendant having been permitted to show the facts as to his control.</p>

<p>Life Insurance — Assignment of Policy — Insurable Interest—Instructions — Statute — Interpleader — Mortgage or Pledge.</p> <p>If the assignment of a policy of life insurance by the assured and his wife, to whom it is made payable, is absolute and bona fide, it is not necessary in an action thereon by the assignee that he should have an interest in the life insured, either as between himself and the company, which makes no objection, or as between himself and his assignors.</p> <p>In an action on a policy of life insurance brought by the assignee thereof, a ruling requested by the beneficiary named therein, who intervenes as a claimant, and, who with the assured made the assignment, on the hypothesis that the assignment was for security only, is made immaterial by the finding of the judge that the assignment was absolute and bona fide.</p> <p>The St. 1886, c. 281, in allowing a defendant, when it appears that the amount of his liability, which is not in dispute, is claimed by another party than the plaintiff, to compel the claimant or claimants to interplead, does not exclude an equitable claim any more than interpleader proper; and the assignee of a policy of life insurance standing as a claimant of the residue in equity of the proceeds of the policy, in equity has a right to prove by parol that an assignment made by him to another, although seemingly absolute, in fact was a mortgage or pledge.</p>

Libel for divorce, filed March 16, 1895, upon the grounds of cruel and abusive treatment and of extreme cruelty. Trial in the Superior Court, before Fessenden, J., who ordered that the libel be dismissed, and the libellant alleged exceptions, in substance as follows. The parties were married on April 2, 1878.

<p>Corporation — Right to let Property for Use unauthorized by Charter — Lease to Directors— Fraud — Equity.</p> <p>A corporation, which is authorized by its charter to hold real estate, is not restricted, in leasing it to others, to such a use as the corporation itself may make of the property, in the absence of a prohibition in the charter against a lease for the use in question.</p> <p>A general charge of fraud in a bill in equity, without stating facts in which the fraud consists, is not sufficient.</p> <p>That a lease of its property by a corporation runs to persons who are directors of the corporation, is a suspicious circumstance, which calls for careful scrutiny, but it does not of itself alone necessarily render the transaction void.</p> <p>Although there is constructive fraud in a contract made by all the acting directors of a corporation with themselves as individuals which renders the contract voidable, there is no such fraud in a stockholder’s voting upon a transaction between the corporation and himself; but such transactions will be set aside upon slight evidence of actual fraud.</p>

<p>Bell in equity, filed September 13, 1895, against John H. Collamore and Francis M. Learned, to set aside a sale of land in Boston under a power in a mortgage made by the plaintiff to one Fuller, and assigned to the defendant Collamore, the other defendant being the purchaser at the sale ; and to redeem the premises. Hearing before Morton, J., who dismissed the bill, and reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Mortgage — Covenant of Warranty in Deed — Attachment — Foreclosure — Action.</p> <p>A. conveyed land to B. by a deed which, in the covenant against encumbrances, excepted a mortgage of a certain sum to a third person, but the covenant of warranty was absolute. There were in fact then outstanding two mortgages held by such person amounting to the sum named. B. on the same day executed a mortgage of the land for a smaller sum, containing a power of sale, to A. While the three mortgages were outstanding, C. attached the land as the property of B. A. then sold the premises under the power in his mortgage, for breach of condition, subject to the two prior mortgages, which were afterwards discharged upon payment by the purchaser to the mortgagee. Subsequently to the sale, C. recovered judgment against B., the execution issued thereon was levied on the land, and a deed was made to C. of all B.’s title in the premises on the date of the attachment. Held, that C. could not maintain an action against A. for breach of the covenant of warranty in the latter’s deed to B.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the alleged negligence of the defendant’s superintendent. Trial in the Superior Court, before Bishop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff was working for the defendant in its waterworks department at the time of the accident, and had been so employed in picking, shovelling, and drilling from April, 1895, to the time of the accident, which was on June 25, 1895. It also appeared that he had done the same kind of work for five or six months of the previous year. On the day of the accident he was engaged with other workmen in digging a trench for water pipes. This work was done under the direction of one Lynch,, who acted as foreman and who did nothing but direct the work. Among other appliances used by the defendant in the progress of the work were sheer poles, which consisted of three stakes about five inches square and fourteen feet and one inch high, joined together at one end and capable of being spread out in the form of a tripod. A piece of iron pipe ran through one of the legs of the sheer pole, forming a handle. The sheer poles were extended across the trench when in use, two legs being on one side and one on the other, and from the apex were suspended blocks and a fall which could be lowered into the trench. While they were in this position the plaintiff was ordered by Lynch to steady the leg of the sheer poles that was on one side of the trench. He did so by taking hold of the iron pipe with each hand, putting all his weight on the handles. The foreman then ordered one of the workmen to chain a stone which was in the trench and to hook it on to a block attached to the sheer poles, and ordered other workmen to hoist. When the stone was hoisted a certain distance, he directed other workmen to swing the stone three times for the purpose of landing it on the ground, and on the third swing ordered some of the men who had hold of the fall to slack up and lower the stone, when the sheer poles and the stone tipped over into the ditch, carrying the plaintiff with them, and he received the injuries complained of.</p> <p>The plaintiff testified that he did not have time to let go of the pole and get away; that he did not know there was any danger in holding the pole as he was doing, or that it was liable to fall in that way; and, on cross-examination, that he was performing his work as directed by Lynch.</p> <p>Michael Garrity, who was employed on the same job at the time of the accident, testified that he had been doing trench work six or seven years; that on the day of the accident he was at work in the bottom of the trench barring out stone; that there was a derrick in use at the trench as well as the sheer poles; that this derrick had also three legs, but that two of them were fastened together by a plank, and it was fitted with a wheel to hoist stone, instead of the men hauling by hand; that the derrick could be moved from place to place by the men ; that the derrick could have been moved to the place of the accident with comparative ease; that he had several times seen the derrick in use, and moved from place to place, on that job, under the orders of Lynch; that he had seen the derrick used for lifting out heavy stone; that it was always used for stones of the size of that which was being hoisted at the time of the accident, and he had never before seen an attempt to lift a stone of that size by the sheer poles ; that the derrick was the safest, and was steadier and securer than the sheer poles for lifting any kind of rock; that he helped to load this stone on a gear after the accident, and that it was of granite, and it took five men to put it on the gear; and that from where the plaintiff stood holding the sheer pole he could not see the stone down in the trench. '</p> <p>Dennis Norton testified that he had worked in trenches about two years, and during that time had had occasion to see stones of different sizes lifted from ditches; that he was working on this job; that Lynch was in charge of the work, and had fifty men under him; that the stone in question would weigh somewhere between eight and ten hundred pounds ; that he had seen the sheer poles used there before, but had never seen them used for lifting a rock of that size, the derrick being used for that purpose; that he was one of the men who had hold of the tag rope pulling the rock in, and they were pulling it in the ordinary way; that the ditch there was about eight or nine feet deep; and that from where the plaintiff stood holding the sheer pole he could not see the stone down in the trench.</p> <p>On cross-examination, Norton testified that the pull on the third swing is less than the pull on the first, because they have to pull harder to get the rock started; and that it was the drawing on the sheer poles, landing the rock on the bank, which caused them to tip over. In reply to the question, “ What was the cause of the accident?” the witness replied, “I don’t think the sheer poles were heavy enough for that rock.”</p> <p>Michael Lynch testified, for the defendant, that he had been foreman for the city on this kind of work twenty years; that for sixteen years he had used sheer poles; that he had taken out stones as large as this one, and larger, with them; that he had been accustomed to take out stones with the derrick, the sheer poles, and the tag rope; that this stone was one which it was proper to take out with the sheer poles; that this stone was the only one at that point to take out; that he used the sheer poles to lift out this same stone right after the accident; that at the time of the accident the single leg came over the ditch; that the plaintiff did not come over with it; that he was not on the leg when it went towards the ditch; that he used the derrick for heavy stone and the sheer pole for light stone; and that for a stone weighing one thousand pounds he would use the derrick.</p> <p>On cross-examination, Lynch testified that the single leg which the plaintiff was holding rested on earth that had been thrown up out of the trench, and was about eighteen inches higher than the two legs on the other side, and they were pulling away from the single leg trying to get the stone between the two legs; that they pulled in obedience to his orders; that the witness saw the stone in the bottom of the trench, as he was standing right over it; and that the plaintiff was doing what the witness told him to do, so far as he knew.</p> <p>Quin O’Neil, called by the defendant as a witness, testified that he was holding the fall at the time of the accident; that he was not pulling on it, but holding it still, and the sheer poles did not go into the ditch; that they took out this_ same stone immediately after with the same sheer poles; that he had worked for the city one year; and that during that time he had seen sheer poles used, and had seen stones as large as that one taken out with the sheer poles.</p> <p>James Corrigan, called as a witness by the defendant, testified that he was one of the laborers on the job, and this was the largest stone they took out at that spot; that he had worked for the city ten years; that during that time he had seen sheer poles used; and that he had seen stones as large as this one taken out with sheer poles.</p> <p>Edmond L. Gifford testified, for the defendant, that he had been a contractor and mason, and had worked sheer poles for something like thirty years; and that sheer poles fourteen feet high with legs five inches square were a proper appliance for taking out a stone weighing one thousand pounds.</p> <p>Robert Nicholson, a master mason of twenty-four years’ experience, and admitted to be qualified as an expert in the use of sheer poles, was called as a witness by the defendant and testified on cross-examination as follows:</p> <p>“ Q. Do you think that that appliance as it stood there with the single leg resting on loose earth eighteen inches high, and a stone weighing one thousand pounds on there, was a suitable and proper way to hoist ? A. It is not a suitable way to have the derrick sitting at all.</p> <p>“Q, Shouldn’t there be a skid there, something else to help take the stone up ? A. I can tell you the way I land them.</p> <p>“ Q. Yes, sir; go ahead. A. If I am using the three legs I generally have stuff there to put under the stone when I get it to the bank.</p> <p>“Q. So that you would not have to swing? A. Yes, sir, that is just what ought to be.</p> <p>“ Q. That is what ought to have been done here ? A. Yes, sir.</p> <p>At the close of the evidence, the defendant asked the judge to rule that there was no evidence which would justify a verdict for the plaintiff. 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> Contract neither Express nor Implied for Support of a Child. </p> <p>If a child, having been taken away from his father, without right, by the mother, who has married another man, voluntarily elects, when the choice is given him, to stay with his mother in her new home and her husband chooses to receive him, the husband has no right, without communicating with the father, to look to him for the child's support.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendants’ employ. At the trial in the Superior Court, before Sherman, J., there was evidence tending to show that at the time of the accident the plaintiff was engaged in pulling squares of pasted leather, in size about twenty-four inches by eighteen inches and about an inch thick, through the rollers of a splitting machine, under the immediate personal direction of one of the defendants, who was passing the leather squares between and through the rollers of the machine; that at each end thereof, on the side where the plaintiff was at work when injured, and in plain sight, were cog wheels which were unguarded, the space about the machine being sufficiently lighted ; that the machine, which was similar to a rolling mill machine, consisted of an upper and an under cylinder or roller, each turned by cogwheels on either end of the machine, which were connected with power by ordinary pulley wheels ; that there was also a knife or blade between the rollers which served to split or skive the leather squares as they were put through the rollers; that one of the defendants stood on one side of the rollers and inserted between them the leather square, and the plaintiff, who stood on the opposite side, took hold of the leather square as soon as it appeared through the rollers, and pulled it completely through, the square being split by the knife during the process of going through the rollers, and a portion of it falling to the floor; and that when the square had been pulled entirely through by the plaintiff, it was .her duty to put it on the floor to her left, and while doing this it was natural and reasonable for her to pass her hands very near the cog wheels of the machine.</p> <p>It also appeared that the plaintiff was of ordinary intelligence, and at the time of the accident, which occurred on November 8, 1894, was thirty years old, understood the English language imperfectly, and was unfamiliar with machinery. She had never been in a factory before, and had been in the defendants’ factory one day and a half at the time of the accident.</p> <p>The plaintiff testified that, being called to this machine by one of the defendants in the early afternoon, she was directed by him to take hold of the leather as it came through the rollers, to pull upon it, and to lay it on the floor at her side when she had pulled it through; that she had never observed the machine or its working before; that she knew nothing of its dangers, and was given no warning as to its dangers, and no instructions as to the working of the machine; that she commenced pulling the leather squares through the machine, and was told by the defendant, working on the opposite side of the machine, to work “ quick ”; that thereupon she hurried in her work, and had pulled a few pieces of the leather through, and laid them on the floor, when she caught her hand in the cogs of the wheels of the machine on her left. She further testified that, while she was taking the leather squares from the rollers and putting them on the floor, these cogs were hidden from her view by the leather squares in her hands, and that she had not noticed them during the short time in which she was at work at the machine, and that her hand was caught in the cogs after she had laid a leather square upon the floor and was bringing her hand back to the machine to pull another square through.</p> <p>The judge, at the request of the defendants, directed a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Contract, upon a promissory note for $800, dated August 2, 1893, payable in four months after date to the order of the defendant, signed by Moyses R. Simmons and indorsed by the defendant, by Eben C. Waterman, and by the plaintiff. The answer set up want of consideration, and that the plaintiff was not a bona fide holder for value. Trial in the Superior Court, without a jury, before Mason, O. J., who allowed a bill of exceptions, in substance as follows.

<p>Bill in equity, for specific performance of a contract for the purchase of land. The plaintiffs moved to amend the suit into an action at law. Hearing before Knowlton, J., who granted the motion; and the defendant appealed to the full court. The facts appear in the opinion.</p>

<p>Redemption of Land sold for Non-payment of Taxes — Jurisdiction of Superior Court.</p> <p>The Superior Court has no Jurisdiction of a bill in equity to redeem land sold by the collector of taxes for the non-payment of taxes.</p>

<p>Petition, filed May 1, 1896, by William A. Rust, a creditor of the Globe Investment Company, to obtain an assignment of certain mortgages by the receiver of the corporation. The Boston Safe Deposit and Trust Company filed an answer, setting up a first lien upon the lands conveyed by the mortgages under assignments by the Globe Investment Company of prior mortgages of the same lands; and alleging that the later mortgages should be cancelled, or delivered to the Boston Safe Deposit and Trust Company, and not to the petitioner, or held by the Globe Investment Company or its representatives in trust for the Boston Safe Deposit and Trust Company. Hearing before Allen, J., who entered a decree for the petitioner; and the Boston Safe Deposit and Trust Company appealed to the full court. The material facts appear in the opinion.</p>

<p>Insolvent Bettor — Power of Court to order Officers of Corporation to submit to Examination.</p> <p>It is within the power of the Court of Insolvency, in the exercise of its discretion, to order the officers of an insolvent corporation to submit to an examination at any time.</p>

<p>Promissory Note — Action — Finding.</p> <p>If a promissory note is discounted by a bank for the payee before maturity without any knowledge that the maker of the note has any defence to it as against the payee, to whose credit in his account with the bank the proceeds are passed, in an action on the note by the bank against the maker, evidence that the payee “ ceased to be a depositor ” in the bank on a date before the maturity of the note will justify the inference that at that time he closed his account with the bank, and a finding for the plaintiff is warranted.</p>

<p> Notice of Filing of Exceptions. </p> <p>If no notice of the filing of exceptions is given to the adverse party within twenty days after the verdict in the case, the exceptions will be discharged.</p>

<p>Deed — Trust — Cemetery Corporation — Legality of Organization — Presumption — Lapse — Title — Dissolution — Land Damages — Parlies — Evidence.</p> <p>A deed of land recited that, in consideration of a certain sum paid by three persons named, “ a committee of and in behalf of” a certain cemetery corporation, the grantor conveyed to such persons, “for the use and behoof of said corporation” the land to be held “ in behalf of the said corporation, to their use and behoof foreverand that the land was free from encumbrances, “ except that the ground shall never be used for other purposes than as a cemetery.” Held, that the deed was to be construed as a deed in trust for the corporation, and conveyed a fee. though no words of limitation to heirs were used.</p> <p>No particular words are required to create a trust; and the absence of the words “in trust” or “trustees” does not negative a trust.</p> <p>The St. 1841, c. 114, provided that any ten or more persons might organize as a corporation for the purpose of establishing a cemetery, in the same manner that religious societies were authorized to organize under Rev. Sts. c. 20. By the latter statute religious societies containing ten or more qualified voters might organize as a corporation in the manner specified. Held, that, in the absence of a provision requiring the presence of any particular number of persons at the first meeting, the fact that eleven persons signed the application for a meeting to organize a cemetery corporation, although they did not all attend the first meeting, would warrant the assumption that the corporation was legally organized.</p> <p>The presumption of regularity extends to the proceedings in the organization of a corporation.</p> <p>If a corporation to which land was conveyed has lapsed, mere possession in the heirs of the grantor is not sufficient to show title in them.</p> <p>Where land is conveyed in trust for a cemetery corporation, whose records show that deeds of many burial lots were given for several years, and interments were made, and the land had not ceased to be used as a cemetery, the corporation is not dissolved by the omission to choose officers and to hold meetings; nor will the title to the land revert to the original grantor without due proceedings had for that purpose.</p> <p>If land is conveyed in trust for a cemetery corporation, the trustees are the proper parties to bring a petition for a jury to assess the damages caused by a railroad corporation taking a portion of the land.</p> <p>Ancient books, purporting to be the records of a cemetery corporation, produced from the custody of the last secretary of the corporation, are competent evidence upon the trial of a petition for an assessment of damages caused by the taking of land conveyed in trust for the corporation by the heirs of the grantor claiming title thereto.</p>

<p>Insolvent Debtor — Statute — Prohibition — Remedy — Mandamus — Composition Proceedings.</p> <p>The proper remedy in case of the refusal of a judge of insolvency to order a hearing on a proposal of a composition made by an insolvent debtor is by a bill or petition under Pub. Sts. c. 157, § 15, and not by mandamus.</p> <p>It seems, that a judge of insolvency will not be compelled against his judgment to order a hearing on a proposal for composition so trifling in amount as under no circumstances “ to be consistent with justice and for the interests of the creditors,” within the meaning of St. 1884, c. 236, § 9.</p>

Contbact, upon a poor debtor’s recognizance, entered into by the first named defendant as principal, and by William I. Holmes, the other defendant, as surety. Trial in the Superior Court, without a jury, before Richardson, J., who found for the principal defendant, and for the plaintiff against the defendant surety; and the latter alleged exceptions. The facts appear in the opinion.

Petition, by a creditor of William Bassett, for a writ of prohibition against both the judge and register of probate and insolvency to restrain them from further proceedings relating to a proposal for composition under St. 1884, c. 236. The respondents demurred. Hearing before Allen, J., who treated the petition as brought under Pub.

<p>Service of and Return upon Writ — Jurisdiction of Superior Court — Appeal from Order overruling Motion to Dismiss.</p> <p>S. was described in a writ as “of P. in the county of P. and State of Rhode Island,” the officer’s return of service reciting that he had attached a chip as the property of S., and summoned him “ by delivering in hand, by direction of plaintiff’s attorney, to W., as the attorney of the said S., a summons of this writ.” S. having appeared specially in the Superior Court, and moved to dismiss the action for want of proper service on him, the motion was overruled, and S. appealed. Held, that because the question was one of the jurisdiction of the court, and on the face of the writ and the return of service indorsed thereon the Superior Court acquired no jurisdiction over S., the appeal would lie, and that the action should be dismissed.</p>

<p>Appeal from a decree of the Probate Court, allowing two certain instruments as the last will and codicil of Benjamin F. Tyler.</p> <p>The case was tried in this court, before Knowlton, J., upon the following issues: 1. Did Benjamin F. Tyler duly execute the instrument offered for probate as and for his last will ? 2. Did he duly execute the instrument offered for probate as and for a codicil to his last will? 3. Was he at the time of the execution of the alleged will of sound mind? 4. Was he at the time of the execution of the alleged codicil of sound mind ? 5. Was he unduly influenced in the making and execution of the alleged will by Annie Frances Tyler? 6. Was he unduly influenced in the making and execution of the alleged codicil by Annie Frances Tyler?</p> <p>The judge allowed a bill of exceptions, in substance as follows.</p> <p>There was no contest over the first and second issues.</p> <p>The undisputed evidence showed that Benjamin F. Tyler died in that part of Boston known as Charlestown on February 10, 1895, from saccharine diabetes, at the age of seventy-two years. For many years prior to January 31, 1892, he had been a bookkeeper for Hittinger and Company and the Fresh Pond Ice Company. On that day his employment there ended, and after-wards he was engaged in no other business than to take care of his property, which consisted largely of real estate in the occupation of tenants.</p> <p>He left a widow, whose maiden name was Annie F. Simonds, and three children, Marie L. Tyler, who was unmarried, Emeline B. Simonds, the wife of Calvin Simonds, and John Tyler. John was married, and at the time of his father’s death had two sons; and Emeline had three daughters and one son. He left also a brother and sister, Jonas Tyler and Annie Tyler, who were both unmarried. His first wife, who was the mother of his children, died after a long illness on February 1, 1890, and he wras marrried to Annie F. Simonds, who was a grandniece of his first wife, and was then only about twenty-nine or thirty years of age, on May 1, 1893. There was evidence tending to show that she had formerly been engaged to be married to his son, who died before the testator; that the engagement had been broken off; and that she was in the testator’s family for a while as a nurse during the last illness of his first wife. The appellant, Marie L. Tyler, testified to some things indicating that there were then improper relations between them; and she fur-, ther testified that, after her mother’s death, Annie F. Simonds came to the testator’s house, without invitation, on February 22, 1890, and that the witness saw her the next morning coming from the testator’s room partly undressed, and told her to leave the house and never to return there. The evidence tended to show that she then went away, and did not return until January 13,1892; that in the mean time the testator was accustomed to spend part of his evenings at her rooms in East Cambridge; that during most of his life he had been in the daily habit of using intoxicating liquor, and he occasionally, although infrequently, drank to excess; that on January 12,1892, he was at her rooms, either intoxicated or in a condition resembling intoxication, and almost uncontrollable; that a physician was called, who went with him and Annie F. Simonds to the Quincy House in Boston, whither his son John was summoned, and at a late hour of the night he was carried home by a ruse, and his family physician summoned; that on arriving at the house he was very violent, fighting with his son and daughter with a sword, and attempting to get his pistols; that from that time Annie F. Simonds remained at his house; and that she was sometimes an occupant of his room and his bed.</p> <p>The appellant, Marie L. Tyler, who had for a long time been regularly employed by a business firm, lived at her father’s house, and paid him three dollars per week for her board. For a few weeks during her mother’s last illness she left her regular employment and nursed her mother, for which he afterwards made her a present of one hundred dollars. The evidence tended to show that she was greatly disturbed by the presence of Annie E\ Simonds in her father’s house, and that the other appellant, her brother, strongly objected to it. There was also evidence tending to show that the testator’s relations with John and Marie had previously been friendly and affectionate. She testified that in March, 1892, her father notified her to vacate her room; that on her failing to do so, on September 8, 1892, her bed was taken down and put away; that on November 10, 1892, she received notice in writing from her father to leave the house; that on November 19 he told her he never wanted to see her face again, and on November 20 she went away; that she and he remained estranged during the remainder of his life; and that from about that time neither she nor her brother visited their father, or had any communication with him. He and his daughter Emeline maintained their friendly relations, and were accustomed to visit each other as long as he lived. John Tyler admitted, on cross-examination, that he sent his father an anonymous letter-in the summer of 1892 in reference to his domestic relations; and there was evidence tending to show that there was strong feeling on the part of Emeline against her brother and sister in reference to their conduct towards their father.</p> <p>Marie L. Tyler testified that, on one occasion while she lived at his house, after January, 1892, the testator said he thought his liquor was drugged; that on another occasion, soon after the death of his first wife, some medicine was put into his liquor with a view to administer it without his knowledge, and that he quickly discovered it, and refused to take it. There was also evidence that at another time he said that John and Marie were trying to put him into an insane asylum, and to get his property away from him.</p> <p>His last marriage was by a justice of the peace, in the presence of only two witnesses, both of whom were former friends of Annie F. Simonds, who had not been acquainted with the testator until after she came to live at his house. - He had for many years professed to be an atheist. The marriage was not publicly announced until about May 28, 1893. There was no testimony that Annie F. Simonds ever conversed with him on the subject of making a will, or that she knew of the making of the will or codicil, or of his intention to make either of them until after they were made, except that she was in the room with him and the others a few minutes while the codicil was being executed. The foregoing, and other evidence of a similar kind, was the only evidence relied on as tending to show that she used undue influence upon him to induce the making of either of the instruments.</p> <p>A great many witnesses were called by the executor, who testified to having been acquainted with the testator for many years, and to having seen him from time to time from January, 1892, until about the time of his death, and who said in substance that they never noticed any change in his mode of speech, his manner, or in his conduct in any particular, that attracted their attention as indicating a change in his mental condition. The evidence tended to show that he was suffering for a long time from a very debilitating and painful disease ; and there was testimony that he was less talkative and cheerful during the last part of his life than formerly, and that he showed the effects of weakness and bodily disease in his manner and conversation ; but there was no testimony of any incoherence in his speech, or of any violence, or of any peculiarities of conduct or manner other than what is above stated. The evidence tended to show that he managed his property and financial affairs, with the aid of persons acting under his direction, until a few days before his death. There was also evidence tending to show that his wife nursed him faithfully during his illness, and did what she could to minister to his comfort and happiness. The uncontradicted evidence in regard to the value of the different parts of his estate tended to show that the amount given to the widow by the will and codicil was less in value than she would have been entitled to receive if he had died intestate.</p> <p>At the close of the evidence, the appellants asked the judge to instruct the jury as follows : “ If the jury shall find, upon the evidence, that the relation of man and mistress existed between the testator and Annie Simonds up to the date of the marriage, and if they shall believe upon the evidence that the marriage was brought about for the purpose of unduly influencing the testator to make a will in favor of Annie Simonds, or in accordance with Annie Simonds’s desire, the jury will be justified in rendering a verdict that the will was obtained by undue influence.”</p> <p>The judge declined to give this instruction, and instructed the jury that they had no right to consider, for the purpose of affecting the legal standing of the widow after the death of her husband, any questions as to who or which of the parties was most influential in bringing about the marriage; that they were to consider the question whether the will was procured by undue influence in reference to the relations existing when the will was made ; that in the eye of the law her position at the time when the will was made, and at the time when the codicil was made, in reference to her relation to her husband, was precisely the same as that of the most honored wife in the land; that she had a right, when the will was made and when the codicil was made, to a share of his estate; and that if he had seen fit to make a will depriving her of a very large portion-of his estate, and giving her little or nothing, the law gives her a right to waive the provisions of the will, and to have one third of all his personal property absolutely, and the use of one third of all his real estate for her life. To the refusal to give the instruction prayed for, and to what was said in regard to the widow’s position in reference to her relation to her husband’s estate, the appellants excepted.</p> <p>The judge also said, in the course of the charge: “I am not aware of any direct evidence in this case that either the will or codicil was procured by undue influence of the wife of the testator. If there is any such evidence as that I have n’t it in mind.” To the statement in regard to direct evidence, the appellants excepted.</p> <p>In the course of the charge, after referring to the occasion of January 12 and 13,1892, the judge used the following language: “ I do not remember that any witness has testified to any subsequent occasion when he exhibited conduct of that kind. You will inquire whether any witness has been called as an expert in regard to his mental condition, and has testified to anything indicating that he was afflicted with any form of insanity, at or about the time he made the will or the codicil, or at any time after this occasion in January, 1892, — any witness called as a medical expert upon diseases of the mind to give you an opinion upon any of the evidence which has been introduced, — anything which tends to show that he was afflicted with any kind of insanity. You have had the testimony of a great many witnesses who knew him for a long time, and who saw him more or less frequently nearly to the time of his death, many of them covering a time subsequent to the execution of the codicil. Many of them have testified to his appearance, mode of speech, actions, everything in his conduct that indicated his mental condition, and the substance of the testimony of a great many witnesses is, that, so far as they saw anything in his conduct, his mode of speech, or anything else, there was nothing to attract their attention indicating any change in his mental condition. Many witnesses have testified, as obviously has been proved from other circumstances in the case, that he grew more and more feeble in body up to the time of his death. Well, it is very evident that any feebleness of his body would necessarily affect the strength of his mind, but the substance of the testimony in regard to his mental condition was of the same general character, — that he was the same kind of-a man, with the same soundness of mind, that they had always known and been familiar wifh. Nobody has testified to the contrary.”</p> <p>The judge further instructed the jury as follows : “ Then you have had the introduction of papers before you which he executed, some checks, a letter to his sister written in the year 1892, his memorandum book with more or less of the entries upon it, and other things of that sort, from which you can tell somewhat whether he was a sane man or an insane man at the time of these several occasions, —whether he was in one condition or the other at the time of the execution of the will and codicil. You have had the particulars of those two occasions; a good many conversations have been introduced on oné side and the other by a good many witnesses. You are to judge whether he talked like a man who was of sound mind within the meaning of the law, according to the definition which I have given, when considering that evidence with the other kinds of evidence of which I have already spoken. The case is not necessarily ended, or at least your inquiry is not limited by these considerations. You have the will itself and the codicil, and it is very important for you to look at the will and' to look at the codicil, and all of its provisions, which will tend to indicate whether the man understood what he was doing, and was competent to do such a kind of business as he was then engaged in.”</p> <p>The appellants excepted to the statement that the substance of the testimony of a great many witnesses was that, so far as they saw anything in his conduct, etc., there was nothing to attract their attention indicating any change in his mental condition.</p> <p>After the close of the charge, the appellants asked for the following instruction: “ If the jury shall find that at the time of making the will or the codicil the testator was acting under any hallucination or delusion, or erroneous opinion amounting to delusion, as to facts in the conduct of any of the beneficiaries under the will, this will be evidence that at that time he was not of sound and disposing mind.”</p> <p>This request the judge did not give in terms, but instructed' the jury as follows: “ In regard to the question as to whether this testator was of sound and disposing mind, it is true, of course, that if a person is under an insane delusion in reference to the subject matter, or has an insane delusion concerning a fact which affects his duty and responsibility in preparing a will, if such an insane delusion is proved, that would affect what would otherwise be considered a good will. The question, so far as that is concerned, is whether there is any insane delusion or hallucination which affects his conduct in the making of the will so that the will is not the will of a man of sound mind.”</p> <p>To the refusal to give the instruction as requested, the appellants excepted.</p> <p>The jury returned a verdict in favor of the will upon all the issues; and the appellants alleged exceptions.</p>

Bill in equity, filed in the Superior Court, on August 31, 1891, against William L. Davis, Alice H. Davis, his wife, and Malcolm McLoud, to redeem certain premises in Chelsea from a mortgage given by the plaintiff to the female defendant and held by the defendant McLoud under an assignment. At the hearing, a decree was ordered for the plaintiff; and the defendants appealed to this court. The material facts appear in the opinion.

<p>Bill in equity, filed March 19, 1895, by the receiver of the Debenture Investment Company, against Theodore H. Emerson, Julian A. Roett, the Boston Safe Deposit and Trust Company, and the American Loan and Trust Company, to have discharges executed by the Debenture Investment Company to Roett of three mortgages of land in Cambridge declared void and the mortgages entitled to priority over a mortgage of the same land executed by Roett to Emerson. Hearing before Lathrop, J., who dismissed the bill, and, at the plaintiff’s request, reported the case for the consideration of the full court; such decree to be entered as justice and equity might require. The facts appear in the opinion.</p>

<p>Indictment for manslaughter, in causing the death of John B. Burns by stabbing him with a knife, on May 4, 1895, at Boston. After the former decision, reported 165 Mass. 569, the case was tried in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared in evidence, on the part of the defence, that the defendant and his brother were in the saloon of one Jacobs on the evening of May 4,1895, and that while there the defendant’s, brother David was struck by Bums; that Burns and David fought upon the sidewalk; and that they fell, and Burns, who was on top, struck David several times until they were separated by one Kilduff, one Ward, and others.</p> <p>Ward, a witness for the government, testified that Burns struck David first, while another witness testified that David struck Burns first.</p> <p>John F. Burk, a special police officer, testified that he led Burns to a passageway between Jacobs’s saloon and the railroad; and that Burns said he was going down to go through.</p> <p>While the struggle was going on upon the sidewalk, the defendant was there with others. The evidence was. conflicting as to whether he assisted in separating the two men or not. After the struggle on the sidewalk, the defendant went back into the saloon; and his brother David testified that, after Burns was taken off from him, he ran across to the other side of the street, and heard some one say, “ If we can get him we will murder him ”; and that he then crossed the street, went back into the saloon, and said to the defendant, who was standing in the wholesale department of the saloon, “ If we don’t get out some back way they will murder us.”</p> <p>The defendant testified that, when David came into the door, and before he got near him, David said, “ Dick, look out there, we are going to get murdered; is there any back door that we can get away ? ”</p> <p>The defendant further testified that he was afraid to go out; that he did not know whether it was best to stay in or to go out; that after that he went and got a knife; that he then asked Ward to let them out the side door; that Ward opened the side door, which was but little used, and, looking up and down the street and seeing that the crowd had got over on the other side of the street and away from that corner, told the brothers the place was clear; that thereupon they left the saloon, crossed the tracks of the Boston and Providence Railroad on New Heath Street, and continued along that street, when, near the corner of Bromley and New Heath Streets, on the latter street, “the first thing I knew I saw a man passing me; I looked at him, and when I saw the man I knew it was one of the crowd; I yelled at the top of my voice, 1 Here they are; they will kill us, they will murder us.’ I sang that out as loud as I could; after this man passed, I looked - around to see if there was any one behind me, and the whole crowd were coming right along. They struck me on my head and threw me on my face and hands, and I was thrown a second time. As I was getting up, the man got his arm around my neck, and commenced to hit me in the face; I could not do anything to save myself; I had no chance to get away from him; I was stooping down with his arm around my neck, and he commenced to hit me in the face, split my lip, and choked me, and took away my breath. My wind was right out of me; I could not stand it a second longer. I had this knife in my hand, and I raised it up, when I felt his hold get loose of me. I did n’t intend to kill him, — I did n’t know that I had killed him.”</p> <p>It appeared that the defendant took the knife in question from a table in the saloon after his brother came in from the street and told him that they were going to be murdered.</p> <p>It appeared from the government’s witnesses that, a short time after the trouble had occurred between David and Burns upon the sidewalk, Burns came out of the saloon, went down a passageway parallel to the railroad track and crossed over the railroad and went into á doorway on New Heath Street, where he was standing when the defendant and his brother went by on their way home; that he met in the doorway three young men, and talked with them; that he said, when the defendant and his brother came along, “ There they come now ”; and that he followed them, and the trouble began; and that it was in this locality that Burns was killed.</p> <p>It also appeared that Burns was going in the opposite direction from his home, and that the defendant and his brother, when walking on New Heath Street, were going directly toward their own home ; that Burns weighed between one hundred and eighty and two hundred and ten pounds, and was very muscular; and that the defendant and his brother were smaller men, David weighing about one hundred and fifty pounds.</p> <p>The government contended, and introduced testimony tending to show, that there was no justification or occasion for the use of the knife by the defendant. There was no evidence that Burns was armed in any way.</p> <p>At the beginning of the trial, by order of the judge, the witnesses on both sides were excluded from the court room at-the defendant’s request. The defendant’s counsel offered as a witness Louis N. Bennett, who took the evidence at a former trial of this case, for the purpose of contradicting the testimony of a witness for the government by the name of Mary Swift, she having testified at the former trial upon material points as to which she testified differently at the present trial.</p> <p>The defendant’s counsel stated that, when the witnesses were excluded from the court room, he did not know that it would be necessary to call Bennett to rebut Swift’s testimony; and that he had excluded in good faith all the witnesses at the time of the beginning of the trial that he intended to call, and did not then know that he would be obliged to call any witnesses for the purpose of rebutting the testimony of a witness for the government.</p> <p>The trial lasted for two and one half days, the larger portion of which was occupied by the government in putting in its case. Several of the government’s witnesses were inquired of by the defendant’s counsel if they had not testified at the previous trial differently from what they testified at this. The counsel when putting these questions apparently read from notes of the previous trial, stating especially in each question facts at variance with those last testified to. Bennett sat at the counsel’s table, taking testimony as an assistant, during all the time that the government’s case was going in and during all the time that the defendant’s case was going in, and was the last witness called for the defence, the defendant and his brother being the other witnesses.</p> <p>Mary Swift was one of the last witnesses called by the government in its direct case. The defendant’s counsel did not offer Bennett for the purpose of contradicting any other government witness. The judge excluded the testimony of Bennett; and the defendant excepted.</p> <p>The defendant requested the judge to instruct the jury as follows : “ Where one is attacked by another on the highway, who manifestly attempts by violence to take his life or to do him great bodily harm, and under such circumstances no retreat being practicable, he is not only not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill him in so doing, and in trying to get away, it is justifiable self-defence and he should be acquitted.”</p> <p>The judge declined to give this instruction, and instructed the jury upon this point as follows;</p> <p>“ The issue is, the killing having been proved, whether the killing was lawful or unlawful. The defendant claims that the killing was in self-defence; it is on this ground that it is claimed by the defendant to have been lawful. When a person is assailed and he, acting under a reasonable apprehension that lie is in imminent danger of death or great bodily harm, and that it is necessary for him to strike a fatal blow, that there is no other way to escape, he has the right to protect himself even to the extent of taking the life of his assailant. The person must be assailed. He would not have the right to assume that the deceased intended to assault him, and therefore to give him a fatal blow; there must be some assault upon him at the time $ there must be some overt act by the deceased at the time ; when there has been a prior assault, but no overt act, at the time of the homicide, a killing is not justifiable. With reference to the reasonable apprehension- of the defendant, this is to be considered from the standpoint of the defendant at the time of the homicide. The jury should consider the situation as it looked to him, not necessarily as he says now it looked to him, but as it looked to him then. Consider all that took place in the bar-room and outside on the sidewalk; what he had seen and heard there are to be considered as circumstances bearing on the defendant’s situation. You are also to consider all that took place where the homicide took place: put yourselves in the place of the defendant at the time of the fatal blow, and determine on all the evidence how it looked to him. By imminent danger is meant immediate danger, such as must be met instantly, and cannot be guarded against by retreat or by calling upon others. . . .</p> <p>“By great bodily harm is meant great personal injury. A mere personal indignity, or a mere battery from which great bodily harm cannot reasonably be apprehended, will not excuse a person in taking the life of his assailant.</p> <p>“ It must appear that the defendant endeavored to avoid any further struggle and retreated as far as he could until there was no probable means of escape; then, and not till then, can he kill his assailant. You should determine the facts, — what took place at the saloon, what took place at the corner when Burns was killed, and then determine whether under the law the killing was lawful.”</p> <p>The defendant excepted to the refusal to give the ruling requested.</p> <p>The district attorney, in his closing argument to the jury, made the following statement: “ The defendant upon these facts might well have been indicted for the crime of murder ”; to which statement the defendant’s counsel, at the time the words were spoken, made an objection, upon the ground that the defendant was on trial only for manslaughter. The judge did not stop the district attorney, and thereafterwards he repeated the statement, in substance, several times ; and the defendant excepted. The jury returned a verdict of guilty; and after the verdict and before sentence the defendant filed a motion in arrest of judgment, for the following reasons:</p> <p>“ 1. Because this court has no constitutional power or right to pass judgment and sentence, since the law upon which sentence is now moved for went into effect subsequent to the commission of the offence for which the defendant was tried, and because there is no law now authorizing sentence in this case.</p> <p>“ 2. Because the law under which it is proposed to pass sentence is illegal and void, because the term of imprisonment is indefinite and unusual, and because by sentencing this defendant thereunder he would be deprived of his liberty, contrary to the law of the land, and in violation of the Constitution of the United States and of this State.</p> <p>“3. Because this court now has no right or power to sentence this defendant.</p> <p>“4. Because the defendant took exceptions at his trial which have not yet been passed on by the court.”</p> <p>The judge overruled the motion; and the defendant alleged exceptions.</p>

Indictment, under Pub. Sts. c. 205, § 12, against Jonathan G. Hunton, Fred A. George, Hugh Maguire, Jr., Cleveland J. Cheney, and Charles Clapp, for conspiracy. At the trial in the Superior Court, before Hardy, J,, the jury returned a verdict of guilty against Hunton and Clapp only; and they alleged exceptions, which appear in the opinion.

<p> Statute of Limitations—Acknowledgment of Debt. </p> <p>An account stated gives a new and original cause of action, and the statute of limitations begins to run only from its date.</p> <p>A writing was signed by the debtor underneath a statement of the mutual accounts of tile debtor and creditor in these words: ■' The above statement is correct, and I owe the balance as above due. J. M. D. June 13,1887.” Held, that this was a sufficient acknowledgment to take the debt out of the statute of limitations.</p>

Contract, on an account annexed. Writ dated May 2,1896. 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. On April 8, 1895, the plaintiff’s attorney wrote the defendant substantially as follows: “A bill against you has been placed in my hands for collection. The amount of the bill is $77.91, plus interest.

<p>Deed — Reservation — Basement — Master's Findings — Equity Practice.</p> <p>The reservation of an easement to one not a party to the deed is void.</p> <p>If the finding of a master to whom a suit in equity has been referred is confirmed by the Superior Court, it will not be reversed by this court, unless it clearly appears to be erroneous.</p> <p>If a deed of land reserves to the grantor a right of way over it, unless the grantee shall provide some other and convenient way over his adjoining land in its stead, the subsequent acceptance by the grantee of a deed of other adjoining land containing a reservation to the grantor therein of a right of way over it will not operate as the substitution by the grantee of a new way for the grantor in the first deed.</p> <p>A finding of the master to whom a suit in equity has been referred, which seems to be immaterial, will not be disturbed, especially if the evidence reported shows some testimony in its favor.</p> <p>Under the 31st chancery rule an exception to a master’s report, which is not founded upon an objection filed before the master, will be overruled.</p> <p>The plaintiff in a suit in equity, which has been referred to a master, is not injured by the master’s statement that the plaintiff could not maintain his bill upon the facts reported.</p> <p>An exception to a master’s report, which contains no specification such as is required by the 32d chancery rule, will not be considered.</p>

<p>Bill in eqttitt, filed in the Superior Court, to restrain the use of an alleged trade name. Hearing before Braley, J., who found the following facts.</p> <p>On October 1, 1888, Ethel Atwood organized an orchestra composed exclusively of women musicians, and selected as a name for such organization “ Fadette Ladies’ Orchestra,” and afterwards advertised the services of such orchestra throughout New England. Such organization became well known to the musical profession, and to the public generally, in a favorable manner, under the name “ Fadette Ladies’ Orchestra,” by reason of the character and quality of the musical entertainments given by it; and its success was due to the ability, skill, and personal supervision of said Atwood. It did not appear that prior to the transaction between the plaintiff and Atwood, hereinafter referred to, any organization distinguished by the name of “ Fadette ” existed, except the one organized by Atwood. On October 18, 1895, Atwood, for a valuable consideration, sold and conveyed to the plaintiff “ all my right, title, and interest in and to the organization known as the ‘ Fadette Ladies’ Orchestra,’ . . . together with all rights acquired in and to the establishment, name, and trademark in the words of 1 Fadette Ladies’ Orchestra,’ ” and ceased any further connection with it. Afterwards the plaintiff gave at least one or more entertainments under the name of the “ Fadette Ladies’ Orchestra.” At the time of the sale, and for a short time thereafter, the orchestra was composed substantially of the same membership as before the sale. Subsequently, Caroline B. Nichols, Jenny P. Daniel, and Viola M. Dunn, and others composing the orchestra, left it and organized an association under the name of “ The Fadettes,” which association duly became a corporation, under Pub. Sts. c. 115, and thereafter gave musical concerts, and used in advertising such concerts, as well as holding itself out for engagements, the name “ Fadette Ladies’ Orchestra.”</p> <p>On January 14, 1896, the plaintiff filed this bill to enjoin the defendant organization from using the name “ Fadette.” At the time the bill was filed no member of the original organization, except the plaintiff, remained.</p> <p>The organization formed by Atwood had no place of business ; engagements were made through Atwood, who had a room in Boston, and the different members were notified by her when they were wanted.</p> <p>All of the members of the original organization were hired by Atwood, and .were paid from time to time by her for their services.</p> <p>The members of the orchestra, while knowing of the proposed trade between the plaintiff and Atwood, did not assent or agree to continue under the direction or management of the plaintiff. The judge dismissed the bill; and the plaintiff appealed to this court.</p>

<p>Petition to the Superior Court, for partition of land in Boston. Trial without a jury, before Sheldon, J., who ruled that the petitioner was entitled to partition as prayed for, and reported the case for the determination of this court. If the ruling was right, judgment was to be entered in accordance with the finding; otherwise, such judgment as justice might require. The facts appear in the opinion. The Massachusetts Society for the Prevention of Cruelty to Animals had previously intervened conformably to the provisions of Pub. Sts. c. 178, § 14.</p>

<p>Fire Insurance — Interest of Mortgagee— Subrogation — Action.</p> <p>Where the insurance upon property subject to a mortgage is payable in case of loss to the mortgagee “ as its interest shall appear,” the interest of the mortgagee covered by the policy is that existing at its date, and not under subsequent mortgages in force at the date of the loss.</p> <p>If the mortgagee of property, to whom a policy of insurance thereon is made payable in case of loss as his interest shall appear, has become unable, by his own act, to comply with the terms of the provision in the policy for subrogation, he cannot maintain an action on the policy.</p>

<p>Partnership — Release of Debt by one Partner — Action — Bar.</p> <p>A release by one partner of a debt due to the firm, after the debtor has notice of the dissolution of the firm and has been notified also that any settlement must be made with both partners together, is a bar to an action by both to recover the debt.</p>

<p>Bill in equity, filed in the Superior Court on September 12, 1896, to restrain the infringement of an alleged exclusive right to use a certain package for the plaintiff’s goods. Hearing before Sheldon, J., who ruled that the plaintiff was not entitled to the relief asked, and ordered the bill to be dismissed; and the plaintiff appealed to this court. The facts appear in the opinion.</p>

<p>Bill in equity, against the Cape Cod Ship Canal Company and the Treasurer of the Common wealth, brought originally to have a judgment for land damages obtained by the plaintiff against the corporation paid out of a fund of $200,000 deposited by the corporation with the aforesaid treasurer, as required by St. 1883, c. 259. After the former decision, reported 164 Mass. 235, remanding the case to the county court that an order of notice might issue to all parties interested in the fund to present their claims within a time limited, the case came on to be heard-for the proof of such claims before Holmes, J., who reported it for the consideration of the full court, in substance as follows.</p> <p>The claims were of several classes, and the questions of law with regard to them are stated below.</p> <p>(1.) Land damages. These claims, so far as they have passed to award or judgment, were not disputed.</p> <p>(2.) A claim which had not been prosecuted, and proceedings to establish which in the regular way were barred, was presented on behalf of one Andrew F. Perry. The judge declined to try this claim in this cause. The question whether it ought to be tried here was reported to the full court.</p> <p>(3.) Claims of various employees.</p> <p>(a.) William Seward, Jr. This is a claim for salary as president of the defendant corporation from June, 1884, to June, 1894, at five hundred dollars per annum. He was elected president by the directors at their first meeting after organization, on July 6, 1883.</p> <p>On October 8, 1883, a contract for the building of the canal was made with one Frederick A. Lockwood, whereby he was to build the canal according to the specifications, and was to receive therefor the sum of $7,500,000, payable in monthly instalments at the rate of one million dollars per mile of completed canal, according to the length of the canal completed during the month. The third section of this contract was as follows: “ 3. For the purpose of meeting its payments under this contract, the said company shall from time to time, as required, issue capital stock to the full amount authorized by its charter. Said stock shall be subscribed for by said contractor and the amounts due from the company under the contract shall be offset against the amounts due from said contractor on account of his subscription to said capital stock.”</p> <p>On October 19, 1883, the by-laws of the corporation were amended by striking out the provision that “ the directors must be stockholders,” and on the same day Lockwood made the following subscription to the capital stock of the corporation. “ I hereby subscribe for fifty thousand (50,000) shares of the capital stock of the Cape Cod Ship Canal Company, agreeing to pay therefor the sum of one hundred dollars ($100) per share as per terms of contract. Frederick A. Lockwood.”</p> <p>The directors of the corporation at a regularly called meeting passed a vote cancelling and annulling all subscriptions previously made to the capital stock, and also passed the following vote: “ Voted, That each share of the capital stock of this company be assessed fifty cents (50 c.),and that Frederick A. Lockwood, subscriber therefor, be directed to pay the same (being $25,000) to the treasurer, on or before the 25th day of October.” Accordingly Lockwood paid the assessment of $25,000 and began the construction of the canal, expending large amounts of money thereon. No certificate of stock was ever issued to him.</p> <p>On May 8,1884, at a meeting of the stockholders of the corporation, at which the president, William Seward, the treasurer, Samuel Fessenden, and Frederick A. Lockwood were present, Lockwood presented his subscription above set forth to the president as his credentials as a stockholder. The president “ decided and declared that no meeting of the stockholders of the Cape Cod Ship Canal Company can be held.” Lockwood said, “ The stockholders are present and insist on their rights without any waiver whatever,” and moved that the meeting be adjourned to May 29, at noon, and, on the president declining to entertain the "motion, put the motion himself, and declared it carried unanimously. After several adjournments at meetings where Lockwood was present and voted as the sole stockholder representing the whole .fifty thousand shares, and at which Seward was not present, at an adjourned meeting held on July 10, 1884, at which Seward was not present and at which Lockwood was present as representing the whole fifty thousand shares, a new board of directors omitting Seward was elected by ballot; and on the same day, the directors chosen at that meeting met and elected a new president of the corporation; and from July 10, Seward performed no further actual service as president of the corporation and attended no meetings, although there were frequent meetings of stockholders and directors, and the directors elected as above set forth and at subsequent meetings acted as directors and the president chosen by them acted as such until thp corporation ceased to act in December, 1890.</p> <p>At a meeting of the directors held on November 3, 1883, a committee was appointed with full powers to fix the salaries of the officers of the company at such amounts as the committee and Lockwood should agree upon.</p> <p>On January 26, 1884, the committee made the following report : “ Samuel Fessenden, Esq., Treas. Cape Cod Ship Canal Co. Dear Sir: The committee appointed at the last meeting of the board of directors to fix the salaries of the officers of the company have attended to their duty and have agreed with F. A. Lockwood upon the following salaries for the current corporation year, beginning at the organization of the corporation in July, 1883, and ending on the second Thursday of May, 1884. President, $500; Treasurer, $500; Clerk, $500 ; Chief Engineer, $3000; Counsel, $3000. Yours truly, George S. Hall, Chairman.” “ I assent to the above salaries. F. A. Lockwood.”</p> <p>An agreement with the company was made by Seward and other officers of the company, which was signed by each, and was as follows: “ Resolved, that all officers, employees, and agents of this company be employed with the understanding between them and the company, that no pay is to be received for their services unless and until there shall come into the treasury of the company sufficient money to pay the amount which shall be voted by the board of directors for their compensation, and that all officers and agents of the company sign and assent to this resolution before entering upon their duties.”</p> <p>From and after December 8, 1888, there was no money in the treasury of the corporation, unless this fund of $200,000 deposited, with the Treasurer of the Commonwealth be so considered.</p> <p>Ho meetings of the corporation or of the directors were held and nothing was done by the corporation after December 5,1890.</p> <p>The judge reserved for the full court the questions whether Seward was president after the election of June, 1884; whether, if he was president, he was entitled to salary, as such; and whether such salary is a claim for labor within the charter so as to be a charge upon the fund of $200,000.</p> <p>(b.) Willard Howland, clerk. It appeared by undisputed testimony that Mr. Howland had served as clerk of the corporation until December 5, 1890, at a salary of $500 a year, and that $1000 of this salary remained unpaid. He signed the agreement above set forth. The questions of the effect of this agreement and whether his claim is a claim for labor within the charter, St. 1883, c. 259, § 19, were reserved for the full court. Subject to them his claim was allowed.</p> <p>(d.) P. E. Hostrand. He had a claim for services as against earlier companies, and suggested that in some way this company was subject to their obligations. The judge excluded this claim, and reported the question.</p> <p>■ (e.) George H. Titcomb. He was chief engineer of the company from June 10, 1883, until April 25, 1888. He has a judgment, dated October 16, 1896, against the corporation for $16,350.71 and costs, for his salary during the above time. The judge reserved for the full court the question whether services as chief engineer are labor within the charter. If they are labor within the charter, but if mere occupation of the office sufficient to entitle him to his salary but not contributing to the construction of the canal is not labor within the statute, then, subject to the question of competency, the judge found that he did not do labor at all approaching in value the amount of the judgment, and his claim was to stand for hearing on the question what the labor actually done by him fairly was worth, or on such other form of question as shall seem proper to the court in order to determine the amount of his charge against the fund.</p> <p>(f.) George W. .Wright. He was assistant engineer and has a judgment dated December 2, 1895, for $1580.65. His case raises the same question as Titcomb’s claim.</p> <p>. (g.) John Donovan. He was a clerk of Titcomb. The company denies that it had any contract with or obligation to him. A suit is pending in the Superior Court, but as it would be a useless expense to try the case unless, if he gets a judgment, he can come against this fund, in order to save expense and in view of the fact- that the court will be called on to deal with the questions, the judge ruled pro forma that his services were not labor within the meaning of the charter, and that, if they were, so much of the salary as did not represent actual labor was not a charge upon the fund, dismissed his claim on those grounds, and reported the question to the full court.</p> <p>Thomas L. Livermore files a petition as creditor, and it is not disputed that he. is entitled to the residue of the- fund, if any there is, after the satisfaction of all claims which are a lien upon the fund.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. Trial in the Superior Court, before Fessenden, J., who ruled that the plaintiff was not entitled to recover, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Disbarment of Attorney—Common Law and Statute—Specifications of Charges — Finding of Guilty of Deceit, Malpractice, and Gross Misconduct in Office.</p> <p>If the provision of Pub. Sts. c. 159, § 39, relating to the removal from office of an attorney at law, was intended to cover only deceit or misconduct in the performance of his official duties, it does not limit the power of the court, at common law, to remove an attorney from his office, either permanently or temporarily, for crime or other gross misconduct not connected with any official act.</p> <p>Under Pub. Sts. c. 159, § 39, as well as at common law, the removal of an attorney from office may be absolute, leaving him to apply to the court for readmission •if his offence was of such a kind that, after a lapse of time, he can satisfy the court that he has become trustworthy; or for a stated time, If the court is of opinion that the interests of the public will thereby be sufficiently protected.</p> <p>It is enough if the respondent in a petition for his removal from the office of an attorney at law is reasonably and definitely informed of the matters alleged against him, and given an opportunity of being heard upon them; and if the general charge is in proper form, it is immaterial that the specifications are not proved exactly as alleged.</p> <p>An attorney at law, who was retained to contest the allowance of a will, drew an instrument and signed it in behalf of his clients, by the terms of which A., the other party to it, agreed to aid them to the utmost of her power in the contest, and, in the event of success, A. was to receive a certain sum, and they a certain proportion each of the net amount obtained. In pursuance of this agreement, A., who had lived in the testator’s family for a considerable time before his death, interviewed witnesses and aided in procuring evidence. The attorney, although he had a duplicate of the agreement in his possession, did not make known its existence, but, without disclosing that A. had an interest of this kind, called her as a witness at the trial, and she gave material testimony upon the subject of the testator’s mental condition; and when the existence of the paper was finally shown, on cross-examination, and the judge requested that it be produced by the witness, and understood that she would produce it, the attorney sent her away, telling her that when he wanted her again he would send for her. Four days later, the witness not having returned, the attorney, being called upon -for an explanation, said that he had a duplicate of the original among his papers in court, and he then searched for it, but did not find it; and the paper was not exhibited until two days later, when the witness returned to the court and produced it. Upon the trial of a petition for the disbarment of the attorney, the judge found that he tried to suppress the evidence in question, and that he was guilty of deceit, malpractice, and gross misconduct in his office. Held, that the finding was warranted.</p> <p>An attorney at law, who was counsel for certain legatees under a will, knew when the executor filed his first account that he had failed to charge himself with as much by a certain sum for stock which he had sold as he ought to have done. The executor owed the attorney a sum of money which he declined to pay unless the attorney would assent to the allowance of the account in behalf of his clients. The attorney thereupon signed his assent in their names, obtained his pay, and the account was allowed. Upon the filing of the second account, he wrote to the executor’s counsel, threatening the executor with an attack unless he paid the amount which his clients should receive, and proposing to keep the whole matter a secret- if a payment was made. Upon the trial of a petition for the disbarment of the attorney, he testified that, when he assented to the first account, he intended, if his clients would authorize him so to do, to object to the allowance of the second account when filed, unless the executor would correct, to the extent of the interest of his clients, the first account. The judge found that he was guilty of deceit, malpractice, and gross misconduct in his office. Held,, that the finding was warranted. Field, C. J., Holmes & Mobton, JJ., dissenting upon the ground that the report of the judge showed that his judgment upon the specifications relating to this part of the case went upon a finding that the charges in those specifications were true as alleged, and was not reached from the point of view taken by the decision.</p> <p>If, upon the trial of a petition for the disbarment of an attorney at law, the facts found, with the inferences that may be drawn from them, warrant a finding that he was guilty of deceit and gross misconduct in his office, it is immaterial that, in making his findings of fact, the judge has not attempted to make a complete analysis of the conduct described, nor to state all the particulars in which it was culpable.</p>

<p>Assault—False Imprisonment — International Law — Writ — Jurisdiction.</p> <p>Under Art. 13 of the treaty between the United States and the Kingdom of Sweden and Norway of 1827, 8 U. S. Sts. 346, 352, the courts of this country have no jurisdiction of an action for wages, brought by a seaman against the master of a Norwegian vessel.</p> <p>Where a court has no jurisdiction of the subject matter of the controversy, or over the persons of the parties, an officer who is informed of facts concerning the truth of which he can have no reasonable doubt, which show, as matter of law, that the court has no jurisdiction, proceeds-at his peril in making an arrest in a civil process, although the want of jurisdiction does not appear on the face of the process. Khowlton, J. dissenting.</p>

<p>'Two ACTIONS OF contract, for the alleged breach of two contracts. The cases were tried together in the Superior Court, before Lilley, J., who ruled, as requested by the defendants, that the plaintiffs were not entitled to recover in either action, and directed the jury to return a verdict for the defendants in each case; and the plaintiffs alleged exceptions. The facts appear in the opinion.</p>

Petition, under St. 1893, c. 340, filed October 23, 1895, to quiet the petitioner’s title to certain real estate in Boston. Hearing in this court, before Allen, J., who reported the case for the consideration of the full court, in substance as follows. Sarah Davis, whose will was duly proved and allowed on or about May 15, 1847, died seised of one undivided half interest in the premises in question.

<p>Divorce — Statute—Evidence— “ Drunkenness from the Excessive Use of Opium or other Drugs.”</p> <p>At the trial of a libel for divorce under the St. of 1889, c. 447, for gross and confirmed drunkenness caused by the voluntary and excessive use of opium or other drugs, witnesses, some medical and others not, but who have been with the libellee for a long period of time and were familiar with her habits as to the use of morphine and its effects upon her, may state that, in their opinion, at various times when they saw her, she was under the influence of morphine.</p> <p>A decree in a libel for divorce based on a construction of the St. of 1889, c. 447, as to divorces in case of gross and confirmed drunkenness caused by the voluntary and excessive use of opium or other drugs, to the effect that the libellant would be entitled to a decree if, at any time after the statute was in force, the libellee was in the condition set forth in the statute, although the gross character of the use of the drug bad become modified or had ceased when the libel was brought, is erroneous.</p>

<p>Contract, upon a bond executed to the plaintiff by M. C. Meservey as principal, and by the defendant as surety, and conditioned that, whereas the principal had or might purchase pianos of the plaintiff, if the principal should, within nine months from the time he notified the plaintiff or the plaintiff notified him of a desire to close the account, pay any balance due the plaintiff, or any notes which he might have given in settlement for any pianos purchased of the plaintiff, the obligation was to be void.</p> <p>At the trial in the Superior Court, before Hammond, J., the defendant asked the judge to rule that the plaintiff was bound to notify the defendant of its desire to close the account with the principal; and that the defendant was not liable in an action upon the bond until nine months after such notification had been given. The judge declined so to rule, and directed the jury to return a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Tobt, for personal injuries occasioned to the plaintiff while in the defendant’s employ. Trial in the Superior Court before Lilley, J., who ruled that upon all the evidence the plaintiff could not recover, and directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract, to recover the sum of 11,000, alleged to be due under a certificate of membership issued by the defendant association to one James W. Merrill. Upon the petition of the defendant, Annie C. Merrill, the widow of James W. Merrill, was admitted as a claimant of the funds in its hands. At the hearing in the Superior Court, before Maynard, J., without a jury, the following facts were agreed.

<p> Withdrawal by Guardian from. Bank of Funds due to his Ward as Administrator. </p> <p>A guardian has no authority to withdraw from a bank funds due to his ward as administrator of an estate, and it is immaterial that at the time when the guardian withdrew the funds there were no known debts due from the estate, and that the ward was the sole distributee. Even if the time for proving debts has elapsed, the guardian cannot intermeddle with the estate, but is bound to wait until it is handed over to him by an administrator.</p>

<p>Tort for personal injuries occasioned to the plaintiff, while in the defendants’ employ, by the alleged negligence of the defendants and their superintendent. Trial in the Superior Court, before Bishop, J., who, at the defendants’ request, ruled that the plaintiff could not maintain the action, and directed the jury to return a verdict for the defendants; and the plaintiff alleged exceptions. The facts sufficiently appear in the opinion.</p>

<p>Tort, by the administrator of the estate of Lester N. Young, for causing his death. Trial in the Superior Court, before Fessenden, J., who, at the defendant’s request, ruled that the evidence would not warrant a verdict for the plaintiff, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Criminal Law — Verdict — Motion in Arrest of Judgment.</p> <p>A verdict of guilty of an assault with intent to commit larceny, rendered at the trial of an indictment under Pub. Sts. c. 202, § 26, which cannot be supported in its full extent, is not wholly invalid, but the defendant may properly be sentenced for an assault and battery, which is well charged in the indictment.</p>

Tout, for the conversion of certain personal property. Trial in the Superior Court, without a jury, before Bond, J., who found for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Personal Injuries — Master and Servant — Employers’ Liability Act — Law and Fact.</p> <p>A temporary staging, put up by workmen engaged in slating the roof of a building, is not a part of the employer’s “ ways, works, or machinery,” within the meaning of St. 1887, c. 270, § 1, cl. 1.</p> <p>In an action for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the fall of an overloaded staging upon which he was at work slating the roof of a building, it is a question for the jury whether the principal duty of the foreman in charge of the work was not that of superintendence, notwithstanding the fact that he was engaged in laying slate on the roof when the accident happened, and although he testifies, as a witness for the defendant, that he worked with his hands nine tenths of the time.</p>

<p>Appeal from a decree of the Probate Court, made December 12, 1895, allowing $100 to Mary E. Chase, as the widow of William C. Chase, upon her petition, dated December 12 aforesaid, for an allowance out of the estate of her deceased husband.</p> <p>The appellant, who was the executrix of the will of William C. Chase, filed the following reasons of appeal: “ 1. That it does not appear that the appellee is the widow of William C. Chase. 2. That the appellee was not so placed by reason of the death of William C. Chase as to entitle her, assuming her to have been such widow, to an allowance. 3. That the appellee did not stand in such relation to William C. Chase as to entitle her to a widow’s allowance upon his decease.”</p> <p>Hearing on appeal, before Morton, J., who affirmed the decree of the Probate Court, and reported the case for the determination of the full court, in substance as follows.</p> <p>The petitioner was lawfully married to the testator on May 24, 1891, and was the widow of the testator. For two years, or thereabouts, before the testator’s death they had lived separate and apart, although he had in the meantime contributed to her support. It appeared that he gave her $200 in May, 1895, part of which, she testified, she used to pay bills with and part to pay off a mortgage upon a piano which she subsequently sold for her living. There was no testimony that he either gave her or did not give her anything more. The cause of the separation did not appear, though it was, perhaps, to be inferred. The estate consisted of about nine hundred dollars, all personal property, and there were no children. It did not appear whether there were any debts. The testator left a will by which he devised the estate entirely away from the widow, who duly waived the provisions thereof. At the time of the testator’s death, and at the time of the petition and allowance and of the hearing, the widow was in necessitous circumstances. She had no income or means of support except such as she derived from her precarious way of life. It did not appear what her husband’s occupation or earnings were; nor, if that is essential, that her necessi* tons' circumstances were altogether due to his death, nor how much, if anything, the death really had to do with them. If she was entitled to an allowance, no objection was made that it was unreasonable in amount, and the judge found that it was reasonable.</p> <p>The judge also found, subject to the objection of competency and materiality, that she was a dissolute woman; that at times' she was intoxicated, and that she was a woman of the town, and had depended for a living upon her business as such woman for the last two years, with what her husband gave her as aforesaid. The judge further found, subject to its competency and materiality, that in May, 1895, her husband obtained a divorce nisi from her for adultery, which had not been made absolute at the time of his death in August, 1895. There was no evidence whether the divorce would or would not have been made absolute if the husband had lived. The respondent contended that the above evidence as to her dissolute character was competent, and that, in view of it, the petitioner was not entitled to an allowance. The judge ruled and found that, if it was competent, she was notwithstanding entitled to an allowance.</p> <p>The case was argued at the bar in December, 1896, and after-wards was submitted on briefs to all the justices.</p>

<p>Appeal from a decree of' the Court of Insolvency refusing the discharge of the petitioner under Pub. Sts. c. 157, § 90. Hearing before Hammond, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The only question in dispute was whether the debtor had obtained the assent of the requisite majority of his creditors as required by that section.* It appeared that he had not obtained a majority in value and number of his creditors who had proved their claims within six months from the date of the assignment, but that he had obtained a majority in number and value of his creditors who had proved their claims at the time of this application. The judge ruled that the phrase “ the creditors who have proved their claims ” meant only the creditors who have proved their claims within six months after the date of the assignment, and refused on that ground alone the discharge. If the ruling was correct, the discharge was to be refused; otherwise to be granted.</p>

<p>Action upon a Judgment of a Trial Justice — Statute of Limitations.</p> <p>An action upon a judgment rendered by a trial justice is barred by the statute of limitations, Pub. Sts. c. 197, § 1, cl. 1, if brought after six years from the date of the judgment.</p>

<p>Contract, to recover a reasonable compensation for taking and appropriating certain property of the plaintiff, for establishing and maintaining a quarantine on the plaintiff’s premises, by order of a member of the board of cattle commissioners under St. 1894, c. 491, entitled “ An Act to codify and consolidate the laws relating to contagious diseases among domestic animals,” and acts in amendment thereof, and also for the expense of quarantine in attending and feeding said cattle, and shipping the same from the town by order of the commissioner.</p> <p>The defendant demurred to the declaration, assigning as ground therefor that it did not set forth a legal cause of action. The Superior Court sustained the demurrer; and the plaintiff appealed to this court.</p>

Petition, filed July 18, 1895, for a writ of certiorari, to quash an assessment made by the respondent upon the estates of the petitioners on account of the construction of a sewer in Pond Street in Boston. Hearing before Barker, J., who reserved the case for the determination of the full court; such decree to be entered therein as justice might require. The facts appear in the opinion.

<p>Contract, upon a policy of insurance for $2,000, issued by the defendant on the life of William A. Jones, the plaintiff’s intestate. At the trial in the Superior Court, before Q-askill, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which 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 justices.</p>

<p>Contract, to recover $525, with interest from October 16, 1880, to the date of the writ, August 17,1894. The answer, among other defences, set up the statute of limitations. Trial in the Superior Court, before Hopkins, J., who directed the jury to return a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in October, 1896, and after-wards was submitted on briefs to all the justices.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while travelling on a highway in the defendant town. The answer was a general denial, and also alleged that the denial included the allegation of notice. Trial in the Superior Court, before Sherman, J., who, being of opinion that the notice was insufficient, and that the evidence offered was not sufficient in law to cover all the defects of the notice and give validity to it, directed a verdict for the defendant, and, at the request of the plaintiff, reported the case for the determination of this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1897, and after-wards was submitted on briefs to all the justices.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.

Contract, with a count in tort, for damage caused by the defendant’s negligence in the transportation of the plaintiff’s horses from Chicago to Boston. Trial in the Superior Court, before Sheldon, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts sufficiently appear in the opinion.

Tort, for personal injuries occasioned to the plaintiff, while employed by the defendant in repairing a bridge, by being run over by a derrick car. Trial in the Superior Court, before Blodgett, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts sufficiently appear in the opinion.

Tort, for deceit. The declaration alleged that the plaintiff sold and conveyed to the defendant certain real estate situate in Medford “ for the sum of nineteen hundred dollars, and received in payment thereof fourteen hundred dollars in cash and four certain promissory notes all signed by one H. Joseph, amounting together to the sum of six hundred and fourteen hundredths dollars; that the defendant, to induce the plaintiff to convey said real estate to him, falsely…

Tout, for personal injuries received in consequence of the breaking of a ladder on which the plaintiff was standing while engaged in the defendant’s employ in painting the outside of a house. Trial in the Superior Court, before Sheldon, J., who ruled that the action could not be maintained, and directed .the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion.

Contract, upon an alleged agreement that, if the plaintiff would procure a purchaser for the defendant’s land, he would pay him $1,000 for his services. At the trial in the Superior Court, before Hammond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Tort, for personal injuries received by the plaintiff on October 10, 1894, while in the employ of the defendant. The declaration was under the employers’ liability act, St. 1887, c. 270. Trial in the Superior Court, before Mason, C. J., who allowed a bill of exceptions, which, so far as material, is as follows.

Contract, under St. 1890, c. 437, entitled “ An Act relative to wagering contracts in securities and commodities,” to recover certain sums of money paid by the plaintiff between February 2, 1893, and July 25, 1893, for securities sold to him upon margin by the defendant. The defendant in bar to the action pleaded certain releases under seal signed by the plaintiff.

Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant.

Contract, upon an account annexed, for intoxicating liquors sold in February and March, 1893. The answer contained a general denial, and also alleged that the sale was illegal. Trial in the Superior Court, without a jury, before Bond, J., who allowed a bill of exceptions, in substance as follows.

Two actions OF TORT, that of the female plaintiff being to recover damages for injuries alleged to have been caused her by the throwing of a stone by the defendant through a closed blind into a room in which she then was, and the action of the male plaintiff, who was her husband, being to recover damages for the loss of his wife’s services caused by said act.

<p>Error — Practice — Rule of Superior Court — Default — Entry of Judgment.</p> <p>The plea of in nullo est erratum to a writ of error raises only issues of law, and the case should immediately he transferred to the full court, without a hearing by a single justice.</p> <p>Under the 27th Rule of the Superior Court, it is within the power of that court to enter judgment in an action in which the defendant has been defaulted on the first Monday of the following month, although it is within four legal days after the default.</p>

<p>Tort, for assault and battery and false imprisonment. The defendant, a constable, justified under an execution by virtue of which he arrested the plaintiff. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the defendant ; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p> Motion to Dismiss for Want of Proper Service of Writ. </p> <p>By Pub. Sts. c. 153, § 8, no exception lies to a judgment of the Superior Court overruling a motion to dismiss an action for want of proper service of the writ.</p>

<p>Petition to establish the Truth of Exceptions — Time of Entry — Entry Fee.</p> <p>A petition to this court to establish the truth of exceptions was, on the nineteenth day after notice to the petitioner’s attorney of the disallowance of the exceptions, presented at the office of the clerk of courts for the county of Bristol, with a request that it be immediately entered and filed, and, in the absence of the clerk, it was received by a'person employed in his office, who indorsed thereon that it was filed and entered on that day. No entry fee was then .paid or demanded, but, on the second day thereafter, upon notice received from the clerk that the petition was not filed or entered for the reason that no entry fee had been paid, the petitioner’s attorney, whose office was in Boston, forwarded the entry fee by mail, and stated that it would have been paid when the petition was presented had it been understood that it was required. On the following day the entry fee was received by the clerk, who thereupon made an entry on the docket that the petition was on that day filed and entered. Held, that, on the facts, the petition was properly filed, within the meaning of Common Law Rule XXX., when it was presented and received at the office of the clerk.</p> <p>Under St. 1891, c. 87, § 1, a fee of three dollars is payable to the clerk of courts upon the entry of a petition to establish the truth of exceptions.</p> <p>The provisions of St. 1888, c. 257, § 8, that “ the clerks of the courts shall collect all fees in advance,” and of St. 1891, c. 87, § 1, that “no suit, action, libel for divorce, or petition shall be entered or filed by the clerk until said [entry] fee is paid,” are directory to the clerks, and do not prescribe a condition precedent to the rights of parties under processes which have been duly entered in court without the payment of the proper fees in advance.</p>

<p>Tort, to recover consequential damages arising from personal injuries to the plaintiff’s wife, Mary J. Kelley, occasioned by the defendant’s negligence. Trial in the Superior Court, before jDewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>This action was tried at the same time with an action brought by the plaintiff’s wife to recover for injuries which she herself had suffered.</p> <p>There was evidence tending to show that on October 23,1894, the plaintiff’s wife, while a passenger on a train of the defendant, was injured; and the defendant admitted that her injuries were caused by the negligence of its servants, and that she was at the time in the exercise of due care.</p> <p>There was also evidence tending to show that the plaintiff’s wife, prior to the accident, had been in good health, and had done the housework, cooking, and washing in the plaintiff’s household, and had taken the entire care of two children ; that in the accident referred to she had suffered a fractured shoulder blade, an injury to her womb causing a retroversion and pain for some time, and numerous severe bruises ; that after the injury she had returned to the plaintiff’s home, and for five or six weeks had had one arm bandaged, and had been unable for a considerable length of time to do any work about the plaintiff’s house, and because of her injuries had been compelled to wean her child, which she was then nursing; that her capacity to work was permanently impaired, and she had been made irritable, pallid, thin, and weak ; and that since the accident she had continued to live with the plaintiff, and on October 21, 1895, had borne him a child; and there was no evidence, other than reasonable inferences from the foregoing facts, that any change had occurred in their relations toward one another as husband and wife. There was further evidence that the plaintiff had incurred expenses for medical attendance, nursing, and medicine for his wife, to the amount of over $1,000.</p> <p>At the close of the evidence, the defendant requested the judge to rule as follows :</p> <p>“ 1. Upon all the evidence the plaintiff cannot recover.</p> <p>“ 2. The division of the rights to recover, which by law are made between the husband and the wife, does not in any sense increase the aggregate right of recovery, and the damages which are to be divided between the husband and the wife should not in the aggregate exceed the damages which the wife, if unmarried, would be entitled to recover.”</p> <p>The judge declined to give the first ruling requested, but gave the second, with the qualification that one additional element should be considered, namely, the loss of consortium by the husband ; and the defendant excepted.</p> <p>The judge also instructed the jury that, although the wife’s time and capacity to earn were her own, yet there was a residuum to which the husband was entitled which could best be defined by the word consortium, meaning fellowship, society, or communion, for the loss of which he alone was entitled to recover; and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff in the sum of $616; and the defendant alleged exceptions.</p>

<p>Contract — Evidence — Action—Accord and Satisfaction.</p> <p>In an action to recover the proceeds of sales of goods, the plaintiff testified that he wrote a letter to the defendant and took a press copy of it himself, and also testified to a general course of business in conducting his correspondence which tended to show that he deposited the letter in the post office properly directed to the defendant; and, on cross-examination, he testified that he would not say; as a matter of memory, that he deposited this particular letter, but that he remembered writing and copying it, and that lie did it in the general course of his business and in accordance with his usual custom, in pursuance of which he would naturally deposit the letter in the post office, properly directed and postpaid, soon after writing it. The defendant failed to produce the original letter upon notice; but a subsequent letter from the defendant to the plaintiff, put in evidence, contained indications that a letter referred to in it was the letter in question. Held, that the press copy of the letter was rightly admitted in evidence.</p> <p>At the trial of an action to recover the proceeds of sales of leather, a letter from the plaintiff to the defendant, put in evidence, stated that A. was under a contract to tan a large number of hides for the plaintiff, and to tan exclusively for him until the contract should be completed, and that the plaintiff owned the bark used in the business; and the plaintiff proposed in the letter to furnish information in regard to their relations, should there be occasion to do so. There was evidence that the plaintiff furnished A. money to pay the other expenses of conducting the business; that subsequently the defendant wrote to the plaintiff, proposing, with A.’s consent, to furnish a large number of hides to be tanned by A. on commission, the proceeds of the sale of the leather to be sent to the plaintiff; and that the plaintiff replied, assenting to the arrangement, and repeating in his letter the provision that the proceeds were to be sent to him. Held, that the evidence was sufficient to warrant the finding of a contract between the plaintiff and the defendant; and that the signing of an order by A., at the defendant’s request, to pay the plaintiff the proceeds of sales of leather due from the defendant to A. did not deprive the plaintiff of his rights.</p> <p>The acceptance of a check, enclosed in a letter which refers to the amount as the balance due on the account between the parties, is not a bar to an action upon the account if the plaintiff ascertains from a subsequent statement sent to him at his request that the defendant has credited himself in the account with items which could not be allowed to diminish the amount due the plaintiff, nor does a silence of eighteen months after receiving the account preclude him from recovery ; and there is no accord and satisfaction, if there was no controversy between the parties when the check was accepted by the plaintiff, and no com-. promise, or knowledge on his part that there was anything to be compromised.</p>

<p>Malicious Prosecution — Want of Probable Cause — Malice.</p> <p>At the trial of an action for the malicious prosecution of the plaintiff on a criminal charge, the judge, in effect, instructed the jury that, if they found that the defendant in instituting the prosecution acted with the care and prudence which would have been exercised by a reasonable and ordinarily prudent person under like circumstances, they should then find that there was probable cause, and the defendant would not be liable. Held, that the defendant had no ground of exception.</p> <p>At the trial of an action' for the malicious prosecution of the plaintiff on a criminal charge, the judge instructed the jury that malice might be inferred from the want of probable cause, and told them what would and what would not constitute malice and probable cause, but did not instruct them that want of probable cause could not be inferred from malice. Held, that it was to be presumed that the jury followed the instructions given, instead of drawing inferences about which nothing had been said, and that the defendant had no ground of exception.</p> <p>At the trial of an action for malicious prosecution, the defendant has no ground of exception to remarks of the judge to the jury by way of illustration or definition of probable cause and malice, where he expressly cautions them that it is for them to say how the questions which he suggests are to be answered, and that they are not to infer, from the manner in which the questions are stated, that one answer or another is to be given.</p>

<p>Libel — Damages — Law and Fact — Instructions.</p> <p>An article in a city newspaper contained a picture of B., a practising physician, together with a sensational title and head lines, and the statement, copied from a newspaper published in another city, that'-B., one of the organizers of a certain social club, "had also succumbed to the enticing charms of Caterer C.’s pretty wife, and that, as a result, Mrs. B. was about to bring proceedings for a divorce, in which she would name the pretty Mrs. C. as co-respondent.” This was followed by an account of separate interviews with B. and his wife, in which each denied the truth of the story, and concluded with a tribute to B.’s professional and social standing in the community. Rdd, in an action by B. against the publisher of the newspaper, that the article was libellous.</p> <p>The fact that a libel may not be believed does not excuse the person who publishes it, nor deprive the plaintiff, in an action for its publication, of all except nominal damages; but it is for the jury to determine the damages.</p> <p>Whether the natural consequences of the publication of a libel are of a character to entitle the plaintiff, in an action therefor, to substantial damages or only to nominal damages, is for the jury to decide.</p> <p>The defendant in an action for libel is not entitled to a ruling that, “if the jury find that the article taken as a whole injured the plaintiff in his feelings and character, but find that the injury was slight, they may award nominal damages ; and if they find that the defendant has only just overstepped the line, and that the action should not have been brought, then the damages must be nominal.”</p> <p>At the trial of an action by B., a physician, for libel, the judge instructed the jury upon the question of damages, among other things, as follows: “Now I think this is a good case to submit to twelve men in Suffolk County, to say what damages a plaintiff shall have who has been treated as Dr. B. has. Has he been injured, or has the defendant pursued a proper and justifiable course in which to treat a citizen who is a man of good character, and where the defendant does not set up the truth 1 . . . You are to take into consideration that the defendant had published what was published in N. Y., that the article was not true, so that when the defendant published this article it had not only the fact that Mrs. B., but that Dr. B. also, denied that there was any truth in that accusation. But still the defendant published it with their denial.” Held, that the instructions did not tend unduly to bias and influence the jury.</p>

Bill in equity, filed in the Superior Court on February 27, 1893, to obtain the cancellation of a deed alleged to have been procured by fraud.

<p>Bill in equity, to enforce the specific performance of a written contract.</p> <p>The defendant demurred to the bill, assigning as ground therefor the following arbitration clause contained in the contract:</p> <p>“ It is further mutually agreed that in case of any alleged violation of the promises and agreements herein made by said Schmidt or by said firm, if such alleged violation is continued after thirty days’ notice in writing from the other to the party charged as guilty of such violation, requiring such party to cease such violation, then the party so guilty shall be liable to the other for all damages caused by such violation, to be determined by a board of referees in manner as follows.</p> <p>“ After the expiration of the thirty days’ notice provided for in the above clause, said Schmidt and said firm shall each forthwith appoint a referee, and the two so appointed shall appoint the third. If either party fails to appoint a referee for ten days, after written notice of such appointment by the other party, then the referee so appointed shall appoint a second, and the two so appointed shall appoint a third.</p> <p>“ The referees shall proceed forthwith to hear the parties and to determine whether or not there has been any violation of the agreements herein contained, and whether the same has continued for more than thirty days after notice to discontinue such violation above provided for, and what damage either party has sustained by reason of such violation.</p> <p>“ The decision of a majority of said referees shall be final and binding on said parties, and they hereby agree to abide by, submit to, and forthwith to comply with any decision, or award, of a majority of said referees. The expense of any such reference shall be borne by any or all the parties in such proportion as said referees may determine.”</p> <p>The Superior Court sustained the demurrer, and dismissed the bill; and the plaintiff appealed to this court.</p>

<p>Public Charity — Cy Pres — Lapsed Legacy.</p> <p>A .bequest to trustees for the purpose of purchasing a lot and building a chapel in the town of 0., in Ireland, to “ forever be used for purposes of public worship under the auspices of the Roman Catholic Church,” is a gift for a public charitable use.</p> <p>The fact that a charity is to be administered in a foreign country does not of itself render it invalid.</p> <p>The fact that a bequest is in the nature of a public charity does not require of itself that the court should frame a scheme to carry it out as near as may be to the purpose of the testator, if, for any reason, that has become impossible of performance in the manner which he has provided.</p> <p>If a charitable purpose is limited to a particular object or to a particular institution, and there is no general intent, then if it becomes impossible to carry out the object, or the institution ceases to exist before the gift has taken effect, and possibly in some cases after it has taken effect, the doctrine of cy pres does not apply, and, in the absence of any limitation over, or other provision, the legacy lapses.</p>

<p>Bill in equity, filed March 14,1896, to compel the defendant corporation to issue certificates on certain shares of new capital stock held by the plaintiff.</p> <p>The bill alleged that on March 30, 1889, at a meeting of the directors of the defendant corporation, pursuant to authority given to them by the stockholders, it was voted that the capital stock of the corporation be increased from one hundred thousand to five hundred thousand dollars by the issue of sixteen thousand additional shares of a par value of twenty-five dollars each, and that all shares not taken by the stockholders in accordance with such vote should be sold or issued by the president of the company in such manner as he should see fit, but that no share should be sold or issued for a less amount than the par value thereof; that on May 1, 1889, Francis M. Holbrook applied to Moody Merrill, president of the corporation, for two hundred and fifty shares of such new stock, and paid to him, in part payment therefor, the sum of six thousand dollars, for which he was given a receipt, stipulating that on or after May 1,1889, a certificate for such shares should be issued to the holder thereof upon surrender of the receipt, and payment in full for such shares at the par value thereof; and that on April 29, 1895, Holbrook sold to the plaintiff his interest in such shares, and transferred to him the receipt therefor. The bill, after reciting similar sales on May 1 and September .4, 1889, to Francis M. and Lucy A. Holbrook of two hundred and ninety-two additional shares of such stock, which were paid for in full, for which similar receipts were given, and which were in like manner trans-, ferred to the plaintiff, further alleged that the stock held by the plaintiff was not taken by the stockholders within the time limited by the vote of the directors, and that they were included in those shares which the president of the corporation was authorized to issue and sell; that shortly after May 1, 1889, and at divers other times prior to the assignment of the receipts to the plaintiff, Francis M. Holbrook, for himself and Lucy A. Holbrook, requested the president of the corporation, Moody Merrill, to issue certificates for the shares of stock so sold by him, tendering to him, for the corporation, the balance due for the two hundred and fifty shares of stock first sold to him and offering to surrender all of the receipts given by him; that Merrill in behalf of the corporation promised that such shares of stock would soon be issued and delivered, but that they never were issued and delivered; that until May, 1892, interest was semi-annually paid to Francis M. and Lucy A. Holbrook on the money paid by them; that in May, 1893, Holbrook requested the treasurer of the corporation to issue certificates for the shares of stock for which such receipts were held, and was informed that the treasurer had no authority to issue such certificates or stock,' and that he declined so to do; that after the assignment of the receipts to the plaintiff he tendered to the defendant the balance due on the stocks so sold, and offered to surrender all the receipts given by Merrill, and requested the defendant and its president to issue to him a certificate for five hundred and forty-two shares of such new stock, but the defendant refused so to do.</p> <p>The prayer of the bill was that the defendant might be ordered to issue a certificate for five hundred and forty-two shares of its new capital stock upon payment by the plaintiff of the balance due and the surrender of the receipts.</p> <p>The vote of the directors to which reference was made in the plaintiff’s bill was as follows i “ Voted that, pursuant to the authority given by the stockholders to the directors at a special meeting held March 27, 1889, the capital stock of the corporation be increased from one hundred thousand dollars ($100,000) to five hundred thousand dollars ($500,000) by the issue of sixteen thousand (16,000) shares of a par value of twenty-five dollars ($25) each, and that written notice of this increase be given to each stockholder who was such at the date of the vote to increase (March 27,1889), stating the amount of the increase, the number of shares or fractions of the new stock which said stockholder is entitled to take, and the time (which shall be thirty days) from the giving of such notice within which such new stock shall be taken, and within said time each stockholder may take at par his proportion of such new shares according to the number of his shares at the date of such vote to increase (March 27, 1889), and the shares which are not so taken shall be sold or issued by the president in such manner as he shall see fit, but no shares shall be sold or issued for a less amount than the par value thereof.”</p> <p>The receipts given by the president of the defendant corporation to Francis M. and Lucy A. Holbrook, and the transfers thereon, were, except as to date, amounts paid, and number of shares, identical in form with the receipt given on September 4, 1889, a copy of which is as follows:</p> <p>“ Franklin Park Land and Improvement Co. — Interest allowed on all payments @6%.</p> <p>“ Boston, Sept. 4, 1889.</p> <p>“ Received of Frank M. Holbrook, of Boston, Mass., the sum of five hundred and twenty-five dollars, in full payment for twenty-one (21) shares in the capital stock of the Franklin Park Land and Improvement Company, at the par value of twenty-five dollars per share. On May 1st, 1889, or at any time thereafter, a certificate for said shares will be issued by said Company to the holder of this receipt, upon surrender of the same and payment in full for said shares at the par value named herein.</p> <p>“ Six months interest paid to Nov. 15, 1890. $15.75.</p> <p>“ “ “ May 1891.</p> <p>“ 66 66 Nov. “</p> <p>“ “ “ May 1892.</p> <p>“ Moody Merrill, Prest, and for self.”</p> <p>The following transfer appears on the back of the above receipt:</p> <p>“ Apr. 29, 1895. I hereby sell and transfer this receipt and my interest in the shares named therein to Joseph W. Smith of Boston. Francis M. Holbrook.”</p> <p>The defendant demurred to the bill for want of equity, and on a hearing in the Superior Court the bill was dismissed; and the plaintiff appealed to. this court.</p>

<p>Contract, to recover the price of a dress furnished by the plaintiff to the wife of the defendant.</p> <p>At the trial in the Superior Court, without a jury, before Dunbar, J., there was evidence tending to show that the plaintiff was a dressmaker in Boston; that on or about April 2, 1895, the wife of the defendant ordered from her an imported French costume, consisting of a waist, skirt, and cape, at an agreed price of two hundred dollars; that the cape was delivered to the wife of the defendant on or about April 20, 1895; that she subsequently had the balance of the costume fitted to her two or more times, the last time being on May 6, 1895; that on May 20 the defendant’s wife returned the cape to the plaintiff, at the same time stating in a letter that she had “ waited quite long enough for it,” and that she did not care “to pay two hundred dollars for a gown that has been hanging around your work-rooms for nearly two months ”; that thereupon the plaintiff sent back to the defendant’s wife the entire costume, including the cape, which Mrs. Brooks at once returned to the plaintiff.</p> <p>The plaintiff testified that she had made about a dozen dresses for Mrs. Brooks in the six years preceding this transaction, the prices of which were from one to two hundred dollars apiece; that she gave credit to Mr. Brooks, who had never notified her not to furnish goods to his wife on his credit.</p> <p>On cross-examination, she testified that she made her charges and sent her bills to Mrs. Henry Brooks, and that she never had had any transactions with the defendant.</p> <p>The defendant testified that he never had any business transactions with the plaintiff; that his wife had a separate income, from which, for about ten years, she had paid for her clothing; that she had traded with the plaintiff for three or four years, paying her bills with her own checks; but that he had paid for some clothing contracted for by his wife.</p> <p>On cross-examination, he testified that he paid substantially all of the bills for the maintenance of his household, except the clothing bills for his wife and daughters.</p> <p>Mrs. Henry Brooks, the wife of the defendant, testified that she had had previous dealings with the plaintiff, and that she had always paid her with her own checks, and that the money with which she paid for her clothing was derived from her own income.</p> <p>At the close of the evidence the plaintiff requested the judge to rule: “ 1. That the defendant is liable for goods purchased by his wife, if at the time of purchase the defendant and his wife were living together, and the goods purchased were suitable to her station in life; 2. That the defendant is liable for goods purchased by his wife, if at the time of purchase the defendant and his wife were living together, and the goods purchased were suitable to her station in life, and the defendant at that time, and for some time previous, had not in fact supplied his wife with such goods suitable to her condition in life; 3. That the defendant is liable for goods purchased by his wife, if at the time of purchase the defendant and his wife were living together, and the goods purchased were suitable to her condition in life, even if the wife had a separate income; 4. That the fact that the wife had a separate income — such fact being uncommunicated to the plaintiff — does not release the husband from his liability to pay for goods suitable to the wife’s station in life, supplied by the plaintiff to the wife while husband and wife were living together; 5. That under the pleadings in this case, if the goods purchased were suitable to the wife’s condition in life, and the defendant and his wife were at the time of purchase living together, the defendant is liable; 6. That articles of clothing supplied the wife, if furnished her during cohabitation with the husband, and if suitable to her condition in life, are necessaries.”</p> <p>The judge declined to give the first five rulings requested, ruling in relation to the fourth request that the non-communication to the plaintiff of the fact that the wife had a separate income was immaterial. The judge also refused to give the sixth ruling requested, except in the following modified form: “ Articles of clothing supplied the wife, furnished her during cohabitation with the husband, if actually needed by her and if suitable to her condition in life, are necessaries.” The judge found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract, upon an agreement made by the plaintiff and the defendant on December 1, 1892, which recited that whereas the plaintiff was the holder of a promissory note for the sum of $10,000, made to him by John W. Candler of Brookline, dated February 6,1887, and payable in three years from its date, and held, as security for the payment of the note, a certain mortgage given to Candler by Oramanda H. Drisko and Jacob Pearson, securing their note of $10,000, dated December 15, 1882, and had brought suit against Candler on his note, which was overdue and unpaid, and attached the property of Candler on the writ, and, at the request of the defendant and for his benefit, had filed a petition in insolvency against Candler, and a bill in equity against him and one David S. Baker, Jr., to set aside a certain conveyance made by Candler to Baker, in consideration thereof the defendant guaranteed to the plaintiff the full payment, principal and interest, of the debt of Candler to him, and also agreed to «pay to the plaintiff the amount of his legal expenses and charges theretofore incurred growing out of his claim against Candler, and further agreed to assume and pay all legal expenses and costs in connection with the proceedings against Candler above mentioned, and to save the plaintiff harmless from any payment or expense on account thereof; and it was further agreed that the defendant should have the benefit of the security of the plaintiff, and should assume all risk that the plaintiff’s right to avail himself thereof might be lost or impaired by reason of the proceedings against Candler above mentioned; and that, subject to the rights of Candler or those claiming under him, or the mortgagors or of those claiming under them, the defendant should be entitled to an assignment of the security at any time on paying to the plaintiff the full amount, principal and interest, of his claims against Candler and of all the disbursements and expenses incurred by him either by reason of legal proceedings or in the payment of taxes, or in any other way to protect his lien upon the premises, and also upon delivering to the plaintiff an agreement on his part to indemnify and save him harmless from all costs and expenses in any way growing out of the legal proceedings above mentioned, the defendant or those claiming under him giving to the plaintiff seven days written notice requesting such assignment; and the agreement on the part of the plaintiff was made subject to the right of Candler or those claiming under him to pay his note and require a reassignment of the security, or of the owners of the equity to pay the mortgage debt. The declaration contained no reference to the indemnity as to future costs and expenses mentioned in the agreement.</p> <p>The answer alleged that the defendant made the agreement with the plaintiff set forth in the declaration, relying upon the agreement of the plaintiff to transfer to him the note of Drisko and Pearson ; that the plaintiff, prior to the making of his agreement with the defendant, had released Drisko from further liability on the note, and had thereby become unable to perform his agreement with the defendant; and that the defendant, in consequence thereof, was released from his liability on the agreement.</p> <p>Trial in this court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that the plaintiff was a farmer living in Brook-line ; that in February, 1887, one John W. Candler, also a resident of Brookline, and who was reputed to own considerable real estate both in Norfolk and Suffolk Counties, and to be a person of means, borrowed of the plaintiff the sum of $10,000, and gave therefor his promissory note, and as security for the note indorsed to the plaintiff a mortgage note of A. H. Drisko and Company for $10,000, and assigned to the plaintiff the mortgage securing the note; that in the summer of 1892, the note given by Candler being overdue and unpaid, the plaintiff brought suit thereon and made an attachment of Candler’s real estate in Suffolk and Norfolk Counties, which suit was duly entered in court, and was pending, and the attachment had not been discharged, in December, 1892; that the defendant was a resident of Boston, and had been for years a banker and dealer in ex- ' change, and engaged in financial transactions in large amounts ; that about December 1,1892, and prior thereto, he was also a creditor of Candler to a large amount; that just before that date Candler had made a conveyance of all his real estate to one Baber, his son in law, which was dated May 18, 1892, and was recorded June 28, 1892; that the defendant had learned that fact, and believed the conveyance to be a preference which was void under the insolvent laws of this Commonwealth, and also believed it to be void as being in fraud of creditors, and feared that the creditors of Candler would be defrauded, unless a petition in insolvency against Candler and.a bill in equity to set aside the conveyance were filed at once, but considered that for some reason such proceedings could be had to greater advantage to the creditors on some other claim than his own; that after having inquired and learned of the plaintiff’s claim and suit against Candler, the defendant negotiated with the plaintiff’s attorney, endeavoring to have the plaintiff institute such proceedings, but the plaintiff refused to do this, preferring to rely on his suit and attachment; that thereupon the defendant proposed to guarantee the payment of the plaintiff’s claim if such proceedings were instituted, and the plaintiff agreed to, and at the request of the defendant did, file a petition in insolvency against Candler on December 1, 1896, which alleged that “ said mortgage is for the sum of $10,000, but the property covered thereby is not worth more than the sum of $7,000 to the best of your petitioner’s knowledge and belief, so that your petitioner has a claim under said first mentioned note for an unsecured balance somewhere in the neighborhood of $3,000,” and also on that day, at the request of the defendant, filed a bill in equity against Candler and Baker to set aside the conveyance, and thereupon the defendant and the plaintiff executed the agreement sued on; and that, prior to the execution of such agreement, and before any negotiations between the parties, the plaintiff had received the sum of $400 on the mortgage note of Drisko and Company from Drisko, and on August 1, 1892, in consideration thereof, gave to Drisko an agreement, releasing him from all further liability on the note, which agreement was given with the approval and consent of all parties at that time interested.</p> <p>The defendant, who was called as a witness by the plaintiff, testified that at the time he made the contract with the plaintiff he relied upon the ability of Drisko to pay the note; that he did not at that time have any information that Drisko had been released, or that any agreement had been made by the plaintiff with him about his liability; and that he did not know how long it was after the agreement with the plaintiff that he first learned of the release, but he should say it was “ several weeks, possibly.” He also testified that he relied on the note.</p> <p>It also appeared that the plaintiff and the defendant had never met or had any correspondence before the trial; and that all the negotiations were carried on through the plaintiff’s attorney, Mr. Garret, who testified that, at the time the agreement in suit was made, he was acting for the plaintiff, and the matter was first brought to his attention on November 28, 1892, by the defendant’s attorney; that prior to the signing of the agreement he had talked with the defendant about the matter, and explained to him that the security was not considered good for the amount of the claim, and that they did not look to the Drisko note as good, but looked to the security, and considered that insufficient; that the bill in equity against Baker and the petition in insolvency against Candler were prepared at the request of the defendant or his counsel; that he was acting in association with the defendant’s counsel, and had conferences with them about the proceedings; that before the agreement was signed, the defendant came to his office one or more times about this matter, and so had his counsel; that at that time the various notes and papers were in his office with the indorsements on them; that he could not say‘that the defendant ór his counsel saw them or asked to see them, but that there was no difficulty in their seeing them if they had asked to, and the papers were in no way withheld ; and that, at the time the agreement was made, he had not in his mind the agreement with Drisko, and made no reference to it, and had at no time previously informed the defendant or his counsel of it.</p> <p>Mr. Garret also testified that, prior to the making of the agreement of December 1, 1892, the defendant proposed to him a different agreement with regard to this same affair; and the plaintiff’s counsel then asked him whether, in that agreement, the question of arrears of interest on the mortgage note was discussed with the defendant. On the defendant’s objection, the judge refused to allow this question; and the plaintiff excepted.</p> <p>There was evidence tending to show a demand upon the defendant, on behalf of the plaintiff, for the payment of the note and performance of the agreement, and a readiness on the part of the plaintiff to perform his part of the agreement, and an ability so to do, unless the agreement with Drisko disabled him from so doing. There was no evidence that the defendant had ever made any demand or request for a conveyance or assignment of any of the security described in the agreement sued on, or of any rescission of the contract by the defendant, or of any payment of the plaintiff’s expenses. Evidence was offered by the plaintiff as to the legal and other expenses incurred by him in regard to the insolvency and equity proceedings, and under the agreement.</p> <p>There was no other evidence that the defendant, prior to making the agreement in suit, had any information that Drisko had been discharged from his liability upon the note of O. H. Drisko and Company held by the plaintiff; but there was evidence tending to show that, prior to the bringing of the action, the defendant notified the plaintiff or his attorney that, in consequence of the plaintiff having made an agreement with Drisko discharging him from liability, the defendant did not consider himself liable on the contract.</p> <p>At the close of the plaintiff’s evidence, the defendant’s counsel moved that a verdict be directed for the defendant. After hearing arguments on this motion, the judge stated that he should rule, in substance, “ that, if the defendant signed this agreement relying upon a note as a part of that security, a note upon which Drisko was a party signing it, and if at the time Drisko had been discharged from his liability upon that note, and the defendant was ignorant of that fact, and it was not disclosed to him at the time of the transaction, and he subsequently, upon discovering that, declined to pay the Candler note on the ground that Drisko had been released from his liability and that the plaintiff could no longer perform that stipulation contained in the agreement,—this plaintiff cannot recover under those circumstances.”</p> <p>He then inquired of the plaintiff’s counsel whether, under this ruling, there was any question of fact on which he desired to go to the jury, to which the counsel replied that there were two questions of fact which he considered open under the rulings, and which he desired to have presented to the jury; first, whether the defendant was informed as to the discharge: and secondly, whether he entered into the agreement relying upon the note and the signatures to it referred to in the agreement as part of the security. The judge thereupon declined to submit these questions to the jury, and directed them to return a verdict for the defendant; and the-plaintiff alleged exceptions.</p>

<p>Eminent Domain — Damages — Improvements by Life Tenant.</p> <p>When real estate has been taken under the right of eminent domain, damages will not be allowed either for improvements made by a life tenant for the convenience of his business, so far as they constitute a part of the real estate, or come within the description of fixtures, or for the injury caused to such improvements, so far as they are personal property, or for the loss of their use in his business.</p>

<p>Personal Injuries — Master and Servant — Obvious Risk—Law and Fact.</p> <p>At the trial of an action for personal injuries received by the plaintiff while in the employ of the defendant, there was evidence tending to show that the plaintiff) who had been employed for three or four months prior to the accident in moulding lead, was set to work melting dross, and that while pouring damp dross into a kettle of molten lead the kettle exploded and injured him. There was testimony on the part of the defendant that the plaintiff had been warned of the danger arising from the contact of dampness with molten lead, but the plaintiff denied that he had ever received any such warning. There was also testimony that the plaintiff had been instructed by another workman to pour the dross slowly from the kegs where it was stored into a box, and from the box into the kettle, and to spread his hands out over the dross as it was running from one receptacle into the other, instead of which the plaintiff poured the dross from the box at the moment of the explosion all at once, in a lump, and not slowly. This was not contradicted by the plaintiff, who did not testify in denial of the instructions as to pouring slowly and spreading his hands over the dross, but testified that he poured the dross in the manner lie' was instructed to. Held, that the risk was not of a character so obvious that the plaintiff must be taken to have assumed it; and that there was evidence in the case which the judge erroneously withdrew from the consideration of the jury.</p>

Contract, upon a promissory note. The plaintiff, who was the holder thereof in good faith and for value, attempted to hold the defendant Wilson, who was the special partner in. a limited partnership, as a general partner, for failure to comply with the statutes exempting him from general liability. 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>Petition, filed December 17,1896, for a writ of mandamus to issue to the respondent, as clerk of the Municipal Court of the city of Boston, requiring him to issue an alias execution on a judgment rendered by that court.</p> <p>The petition alleged that on October 2, 1895, the petitioner recovered judgment in the Municipal Court of the city of Boston against Alfred A. Marcus and Simeon Marcus, copartners; that, upon an execution duly issued thereon, Simeon Marcus was arrested and entered into a recognizance in accordance with the statutes for the relief of poor debtors, and that subsequently said Simeon made default on his recognizance, all of which matters and things by the record thereof now remaining in said court will more fully and at large appear; and that, after the return of the original execution and the default of Simeon Marcus on his recognizance, the petitioner applied for another execution wherewith to arrest the said Alfred or levy on his estate, but that the respondent refused to issue it.</p> <p>The prayer of the petition was for a command to issue to the respondent requiring him to issue another execution.</p> <p>The respondent, in his answer, conceding that the facts alleged in the petition appeared of record in the Municipal Court, alleged his belief that such facts were a bar to the issuing of another execution, and submitted himself to the judgment of the court. Hearing before Holmes, J., who entered a decree directing the respondent to issue another execution, subject however to a stay on said execution as to Simeon Marcus, so far as cause may be shown for such stay. To this decree the respondent excepted, and, at his request, the judge reported the case for the consideration of the full court. If the decree was correct it was to stand, and the order was to issue; otherwise, such order was to be made as this court should direct.</p>

<p>Personal Injuries — Market Value of Services — Evidence — Exceptions — Instructions — Damages.</p> <p>Where, in an action for personal injuries, the only ground relied on in support of the exceptions was that it was not competent for the plaintiff to show what his services would be worth in the market to other persons, the court said that, while upon reading the bill of exceptions, it was hardly to be supposed that this question was presented or ruled on at the trial, yet, if it was, the evidence was competent.</p> <p>In an action for personal injuries, the instructions of the judge as to the rule of damages not being stated in the bill of exceptions, and no exception being taken to them, the court said that, if the plaintiff’s services had a market value in the kind of business in which he was engaged, such market value might be proved to the jury as a fact which they might take into consideration in determining the amount of damages to be awarded to him, although he had not actually worked for others, but was engaged in business on his own account.</p>

Tort, for personal injuries occasioned to the plaintiff in consequence of a defect in a public way in the city of Haverhill. Trial in the Superior Court, before Sherman, J., who, after a verdict for the plaintiff, at the request of the defendant, reported the case for the determination of this court, in substance as follows.

<p>Settlement of Title—Undischarged Mortgage — Acts in Recognition of the Mortgage.</p> <p>A petition, under St. 1882, c. 237, to relieve real estate of the encumbrance of an undischarged mortgage cannot be maintained where, within twenty years after the time therein limited for the performance of its conditions, the mortgagor recognizes the existence of the mortgage by a letter written to the mortgagee referring to the mortgage debt and promising payment thereof in time, and later, by buying back from his assignees in bankruptcy the equity of redemption in the mortgaged real estate.</p>

<p>Statute — Erection or Restoration of Building—Permit —License— Ordinance.</p> <p>The superstructure of a building in a city used for the storage, refining, etc. of crude petroleum or its products having burned down, it appeared that the value of the gills, girders, and piling that remained in the erection of a new building was $1200 for the piling and about $250 for the flooring, and that the cost of the original superstructure was $3,000, but that the estimated cost of restoring it was a little less. Held, that the proceeding to restore it was not the erection of a new building, but the repairing of an old one, and that it was not necessary to take out a license under St. 1894, c. 399, entitled, “ An Act concerning the storage of petroleum or any of its products, and the erection and use of buildings therefor,” or a permit under a city ordinance which required such permit except in the case of necessary repairs.</p>

<p>Beneficiary Association— Validity of Designation of Beneficiary — Foreign Corporation — Lex Loci Contractus — Statute.</p> <p>. Under St. 1888, c. 429, § 11, the designation, in a benefit certificate issued by a corporation organized under the laws of another State and transacting business in this Commonwealth conformably to law, of a person resident in this Commonwealth who could not take under a certificate issued by such a corporation organized here, is valid, if permitted by the laws of the other State and of the corporation; and the contention that the corporation was authorized under the laws of the other State to do what is considered in this Commonwealth an accident and life insurance business as well as the business done by fraternal benefit associations, and that the contract is one of life insurance, is immaterial, for, even if the certificate should be regarded as a policy of life insurance, the contract was valid at the time when it was entered into, although the association had not complied with the requirements of Pub. Sts. c. 119.</p>

<p> Motion to set aside Verdict rendered in absence of Parties and Counsel, and after Proclamation of Adjournment. </p> <p>A verdict may be taken in the absence of the parties and their counsel, notwithstanding a proclamation of adjournment of the court until the next day has been made.</p>

<p>Personal Injuries — Employers’ Liability Act — Master and Servant — Owner’s Risk — Evidence.</p> <p>At the trial of an action against a gas light company for personal injuries to the plaintiff, while in its employ, caused by the caving in of the sides of the trench in which the plaintiff was at work, there was evidence that the trench had been dug four days previously by a city in one of its streets, and that although the earth in that vicinity was constantly shaken by the moving of trains and heavy teams, and although the trench was six feet wide and of about the same depth, having earth thrown up on either side to an additional height of eighteen inches, it had not been shored or braced; that by the digging of the trench, over which the defendant had no control, its gas pipe had been exposed, and that, pursuant to orders from the city to remove such pipe from the trench, it set the plaintiff to removing it; that the plaintiff had had two or three years’ experience in digging trenches; and that the accident happened after he had been at work three hours, and just after the defendant’s superintendent had left the trench. Held, that the plaintiff was not entitled to recover, either at common law or under the employers’ liability act, and that evidence offered by him that he made no examination of the trench, but relied on the defendant’s superintendent to provide for his safety, was properly excluded.</p>

<p>Beneficiary Association—Construction of Laws — Forfeiture of Membership — Effect of mailing Money for Reinstatement — Death of Suspended Member before Receipt of Money — Action.</p> <p>Where the laws of a beneficiary association provide that if the secretary of a section fails to forward the monthly collections to the board of control on or before the last day of the month, the section and its members shall stand suspended and their certificates forfeited, and that if the money is paid to the board of control within thirty days after such default the section and its members may be reinstated, the payment does not become effectual until its receipt by the board of control; and if the money of a section is sent by mail on the first day of the month following a default to the board of control in another State, and arrives there on the third day, which is Sunday, and is delivered on the fourth day of the month, and a receipt for the money is sent on that day, which is expressed to be on the condition that all the members for whom the payment is made are living at the date of the receipt, and a member of the section, who has paid all his assessments, dies on the third day of the month, no action can be maintained upon his certificate of membership.</p>

<p>Tort, by the assignee in insolvency of Philip D. Wheatland, to recover the difference between certain sums of money paid to Wheatland by the defendant on October 9,11, and 18,1889, and the/ then market value of certain shares of stock which it was •alleged Wheatland had transferred and delivered on those dates to the defendant, with a view to giving a preference in violation of the insolvent laws. The action was commenced on October 25,1894, and, upon the death of the defendant on November 15, 1895, his executors appeared and defended.</p> <p>At the trial in the Superior Court, before Lilley, J., there was evidence that Wheatland, prior to his insolvency in November, 1889, was a stockbroker, doing business in Boston; that, at various times during the years 1888 and 1889 he had, at the defendant’s request, purchased for him 3,500 shares of stock of the Chicago, Burlington, and Quincy Railroad Company, for which, as purchased, the defendant paid margins of about ten dollars upon each share; that on May 24,1889, of these shares 500 had been sold, and on June 7, 1889, 500 had been fully-paid for by the defendant and delivered to him; that between the latter part of June, 1889, and the following October, the defendant repeatedly asked Wheatland for the remaining shares of stock purchased for him, but that Wheatland put him off with various excuses, generally saying that it was not convenient; that after July 1, 1889, Wheatland ceased to hold the 2,500 shares bought for the defendant, and had no stock of that description under his control except such as passed through his office in consequence of dealings for customers other than the defendant; that in the summer of 1889, subsequent to June 7, he became insolvent, and on November 18, 1889, a petition in insolvency was filed against him, and on December 6, 1889, the plaintiff was chosen assignee, but Wheatland’s credit was not questioned, nor his business paper protested, until after October 30, 1889 ; that on October 9, 11, and 18, 1889, respectively, the defendant paid to Wheatland three several sums of $48,000, $49,000, and $21,227.24, for which, on each of the first two dates, he received 500 shares, and on the last 200 shares of the stock of the Chicago, Burlington, and Quincy Railroad Company; that the market value of the shares so delivered on October 9 and 11 was $54,018.75 and $54,000 respectively, and of those delivered on October 18 was $21,400; and that those prices were paid by Wheatland, who purchased the stock .through other brokers. There was also evidence that between J'yJy 1 and October 9, 1889, the defendant, who insisted upon having' \tlie particular shares purchased by him, had reason to know thatWheatland had ceased to hold any of the 2,500 shares originally purchased for him, but the defendant contended, and there was evidence tending to show, that he supposed that the stock had been pledged.</p> <p>The defendant requested the judge to instruct the jury:</p> <p>“ 1. That upon the evidence the plaintiff was not entitled to recover. 2. That if the defendant’s testator purchased certain shares of stock through Philip D. Wheatland, a stockbroker, giving said Wheatland certain moneys in part payment thereof, with the agreement or understanding that said Wheatland was to hold said stock until the same was fully paid for by the defendant’s testator, or sold by him, the relation between the defendant’s testator and said Wheatland is that of pledgor and pledgee. 3. If the defendant’s testator purchased through Philip D. Wheatland, a stockbroker, and while said Wheatland was solvent, certain shares of stock, giving Wheatland certain moneys in part payment thereof, and if he subsequently paid the balance of the purchase price and took the stock, he is entitled to hold it against said Wheatland’s assignee in insolvency, although he may have had reason to know that said Wheatland was insolvent at the time the shares were so ultimately paid for and taken. 4. That if the defendant’s testator purchased through Philip D. Wheatland, a stockbroker, and while said Wheatland was solvent, certain shares of stock, giving said Wheatland certain moneys in part payment thereof, with the agreement or understanding that said Wheatland was to carry the same until fully paid for by the defendant’s testator, or sold by him, and subsequently the defendant’s testator paid for said shares in full, and received them from said Wheatland, the plaintiff cannot recover in this action without satisfying the jury that the defendant’s testator knew that said Wheatland did not have said shares in his possession or under his control at the time he so transferred them to the defendant’s testator. 5. It is immaterial that Philip D. Wheatland, the broker, did not at the time he transferred the shares of stock in question have them actually in his possession, or under his control, if that fact was not communicated to the defendant’s testator. 6. The plaintiff cannot recover unless he proves to the satisfaction of the jury that at the time of the transactions in question an indebtedness existed, and was recognized to exist, from Wheatland to Jordan, and that something was given in payment or part payment thereof, contrary to the provisions of the Massachusetts insolvent law. 7. In order to recover, the plaintiff must show that at the time of the transaction in question a debt was due from Wheatland to Jordan, or a claim existed of Jordan against Wheatland. 8. The amount claimed here, being the difference between the market price of the stock in question and the balance due upon it, was not a debt from Wheatland to Jordan, nor a claim of Jordan against Wheatland at the time of the transactions in question. 9. If Wheatland in transferring the stock in question to Jordan intended simply to carry out his contract with Jordan, and not to give him a preference, the plaintiff cannot recover.”</p> <p>The judge refused to give the first, second, and eighth requests for instructions, but gave the fourth, fifth, sixth, seventh, and ninth requests, and the third with the following qualification : “ If Jordan, knowing nothing of Wheatland’s disposition of these shares which he had bought for him pursuant to his order, knowing nothing of Wheatland’s inability to deliver those or any other shares to him, supposed at the time when he paid these sums to Wheatland on October 9, 11, and 18, that he was paying the balance of the purchase price of the stocks when they were bought by Wheatland.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries sustained by the plaintiff while in the employ of the defendant, from asphyxiation and burning on board the defendant’s steamship on February 20, 1893.</p> <p>Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff, who was a coast pilot, had been employed by the defendant to pilot its steamship, the- Persian Monarch, from Boston to Gay Head, arid on the morning of February 19,1893, he went aboard the steamship for that purpose. Before he assumed charge of the navigation of the vessel a first class state room in the passenger cabin on the main deck was assigned to him by the chief steward, in which he deposited his bag of clothes. The plaintiff assumed charge of the navigation of the vessel at about eight o’clock in the morning, taking his station for that purpose on the bridge which was situated on the upper deck just forward of the mainmast. At about three o’clock in the afternoon of the same day the vessel encountered snow squalls and mist, and the plaintiff at that time went to his state room and put on the sea clothes which he had left there. At about midnight the third officer went to him on the bridge and informed him that the vessel had a chart room or deck house where he could sit and get warm, and, telling him that he would be called when wanted, took him to the chart room which they both entered. The chart room was situated amidships on the same deck as the bridge, and a few feet aft of it. It was about six feet square, and between six and seven feet in height, and had a door opening outwardly which could be held open four or five inches by a hasp. The room, among other furniture and fixtures, contained a cushioned seat on either side, and a stove in the centre, fastened to the floor. It was lighted by two portholes, and had two ventilators about three inches in diameter placed in the door and ceiling respectively, and capable of being opened from the inside. The stove burned some kind of patent fuel, but had no smoke pipe leading to the outer air. The plaintiff resorted to this chart room on several occasions, and about noon on Monday he again went into it, laid down on one of the seats, fell asleep, and while asleep fell from his couch against the stove, in consequence of which he was severely burned about the body and rendered unconscious by the fumes from the stove. About an hour later he was found unconscious in a kneeling posture over the stove, with his side pressed against it, his arm resting on and partly around it, and his hand thrust into the opening of the stove.</p> <p>The plaintiff testified that soon after he went into the chart room for the first time, the first mate also entered, and tried to open the dead-lights, but could not do so because they were frozen; that he then said, “ Pilot, we are burning a patent fuel here, an American fuel, we do not know what it is, whether there is any danger in it or not, but keep that door hasped back, and there will be no danger ”; that the mate then went out leaving the door hasped open ; and that the plaintiff at no time noticed any fumes from the stove, and that he always kept the door hasped open. He further testified that when he went into the chart room on Monday noon he had to unhook the door, and after entering hasped it partly open as he had found it; that while he was lying down the captain came to get his glasses, and when the plaintiff started up he said, “Pilot, lie still, lie still”; that the fire was then very low, but when he was almost asleep the third mate came in, and ordered one of the crew, who was with him to get some fuel and fill up the stove; that he knew nothing more until after the accident, and that when he went to sleep the door was hooked open, and he did not know that any one closed it. This was all the material evidence in the case.</p> <p>At the close of the plaintiff’s case, the judge, at the defendant’s request, ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Validity of Subscription to Agreement before Withclraioal by Subscriber — Consideration.</p> <p>A written agreement to subscribe money for the erection of a building, signed by A. and others, which agreement is virtually a promise to pay to such person or persons as shall be fixed at a meeting of the subscribers, is at the outset an offer; but when steps are taken in pursuance of a provision thereof that the details of the plan of organization and erection of the building shall be determined by a majority in number and interest of the subscribers at a meeting duly called for the purpose, and a plan is determined as therein provided and trustees are chosen, they become the promisees, and when they proceed to erect a building in reliance upon the subscriptions of A. and others, and before any withdrawal or retraction by A., that supplies a gobd consideration, the promise becomes valid, and A. is bound by his subscription.</p>

<p>Action—Surviving Defendant — Commission to take Depositions — Evidence — Contract — Usage.</p> <p>If, pending an action against several defendants sued on a joint contract, one of them dies, a ruling that the action may proceed against the survivor is correct.</p> <p>It is not necessary that the name of the magistrate should be inserted in a commission to take depositions issued under Pub. Sts. c. 169, § 40, if there is a proper designation by official title of the person who may take the deposition.</p> <p>It is no defence to an action for money had and received by a commission merchant, from the sale of merchandise forwarded to him in the ordinary course of business, that he had some reason to suspect that it belonged to the L. Co., which did business in the former year and sent similar merchandise to him from the same place from which the plaintiff’s merchandise was sent; that the accompanying drafts were made payable to the same person in whose favor drafts were drawn the year before by the L. Co., and were in the same handwriting; that the mark on the merchandise to designate the consignee indicated a succession to the rights of the L. Co., because, as against th/a proprietorship truly asserted by the plaintiff’s business name in which the merchandise was sent, it had no tendency to contradict the plaintiff’s claim of title; that the defendant heard from commercial agencies and from those in the vicinity of the place from which the merchandise was sent that the business was being there carried on in the same manner and by the same parties as in 1889; and that there was a usage for persons whose merchandise of this particular kind did not sell well to change their business name and conceal their identity to mislead the public and avoid the consequences of a bad reputation.</p>

<p> Interest of Husband in Wife’s Lands when they have had no Children. </p> <p>The Pub. Sts. c. 124, § 1, give a fee to an amount not exceeding five thousand dollars in value to a husband in his wife’s lands, when they have had no children.</p>

<p>French Spoliation Claims — Prohate Court — Appointment of Administrator and Settlement of Accounts.</p> <p>Where there is property or a fund or right of action which cannot otherwise be made available, it is competent for the Probate Court to appoint an administrator for the sole purpose of collecting and receiving assets which will not be general assets of the estate of his intestate, or liable for his debts, but which will belong to particular persons who by law or by contract with the deceased will be entitled thereto, and it is also competent for that court to entertain jurisdiction of the settlement of the accounts of such administrator; at least when he has not been called to account by other-judicial proceedings instituted before the jurisdiction of the Probate Court for this purpose is sought.</p>

Contract, upon a check, for $892.50, signed by the defendant Manson, payable to the order of and indorsed by the defendants A. D. Pennycuick and Company, dated December 21, 1895, and containing under the name of the indorser the words, “ Endorsement guaranteed. Pay only through Clearing House to Shawmut National Bank, Boston. J. C. Tufts, Cashier.” The defendants Pennycuick and Company filed a general denial, but did not appear at the trial.

Tort, for slander of title and conspiracy to defraud the plaintiffs of certain land in Belmont, and fraudulently to foreclose a mortgage thereon. Trial in the Superior Court, before Blodgett, J., who ruled that the action could not be maintained, and directed the jury to return a verdict for the defendants; and the plaintiffs alleged exceptions. The facts material to the point decided appear in the opinion.

<p> Damages of Leaseholder for Property taken by Right of Eminent Domain. </p> <p>A lessee of real estate, which has been taken by a railroad company under the right of eminent domain, cannot, after his remedy against the company has been barred by lapse of time, maintain an action against the lessor to recover a part of the sum paid to him by the railroad company when the lessor, acting for himself alone, settled an action for damages brought by him against the railroad company, and gave to it a deed of the property previously taken.</p>

Contract, against one of two owners of the schooner Gertie Winsor, to recover for necessary supplies, mainly rigging and fishing gear, furnished for a fishing voyage. Trial in the Superior Court, before IAlley, J., who directed a verdict for the defendant ; and the plaintiffs alleged exceptions, the nature of which appears in the opinion.

Tort, under Pub. Sts. c. 112, § 212, for causing the death of the plaintiff’s intestate, a passenger, by the gross negligence of the defendant’s servants. Trial in the Superior Court, before Maynard, J., who, at the close of the evidence, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, the nature of which appears in the opinion.

Petition, to enforce a mechanic’s lien, under Pub. Sts. c. 191.

<p> Forcible Entry and Detainer against Lessee of Mortgagor. </p> <p>If a person who purchases an estate at a sale under a power contained in a mortgage, with a provision authorizing the mortgagee to purchase at the sale, is the agent of the mortgagee, and the conveyance to him from the mortgagee and the reconveyance by him to the mortgagee are simultaneous acts, an action against the mortgagor’s lessee to recover possession of the estate may be maintained by the mortgagee, under Pub. Sts. c. 175.</p>

<p>Personal Injuries — Assumption of Risk — Action — Inference from Photographs.</p> <p>If an employee of a railroad corporation, while getting down from the top of a car by a side ladder in the discharge of his duty, is injured by coining in contact with one of the iron pillars of a bridge over the track, the pillar being about four feet from the track, he cannot recover in an action against the corporation for his injuries if he was an experienced hand, and knew that the bridge was there, and that cars might have only side and no end ladders.</p>

<p> Petition to vacate a Judgment—Statute—Answer. </p> <p>Under St. 1895, c. 234, entitled " An Act relative to the vacation of judgments and writs of and petitions for review,” the petitioner cannot require the respondent to file an answer.</p>

<p>Cortract, to recover $100, being the amount of salary due to the plaintiff for services as a travelling salesman for the defendants from December 30,1895, to January 27, 1896.</p> <p>At the trial in the Superior Court, before IAlley, J., there was evidence tending to show that the defendants, who were copart-' ners, carrying on business until the autumn of 1895 under -the firm name of Charles E. Hall and Company, and after that under the name of the National Soda Fountain Company, on October 8,1895, entered into an agreement, under seal, with one Presby, to employ him as a salesman for two years from that date, stipulating that he should devote his entire time, labor, and ability as a salesman to the business of the defendants, in compensation for which he should receive “ the sum of fifteen per cent on the net sales of all soda fountains effected by him, or his agents, which percentage is to include all compensation for travelling, or sales expenses,” and allowing him “ to draw on account the sum of fifty dollars, and such sums as may be necessary for travelling or sales expenses”; that on December 5,1895, Presby made a written contract with the plaintiff, of which the following is a copy.</p> <p>“ Agreement, Dec. 5th, 1895.</p> <p>“ This agreement, entered into between George T. Presby, party of the first part, and John J. Crawford, party of the second part:</p> <p>“ The party of the first part agrees to employ and pay a salary of $25 each week and travelling expenses to the party of the second part. This to take effect on this date; to expire October 1,1896.</p> <p>“ That after the first day of July to be held on waiting orders, and no regular travelling expenses allowed, only such as are necessary in carrying out direct orders from the party of the first part.</p> <p>“ The party of the second part agrees to devote his whole time and attention to the sale of the National Soda Fountains, and only such goods as may be offered him for sale by the party of the first part.</p> <p>[Rubber stamp.]</p> <p>“The National Soda Fountain Co. George T. Presby,</p> <p>John J. Crawford.”</p> <p>The plaintiff introduced in evidence certain checks of Charles E. Hall and Company, drawn to his order, delivered by the defendants to Presby, and by him to the plaintiff, in payment of his salary and expenses. The plaintiff also offered in evidence the following receipt.</p> <p>“ The National Soda Fountain Co.</p> <p>Office 78 Sudbury St.</p> <p>Factory 67 to 93 Charlestown St.</p> <p>“ Boston, Dec. 30,1895.</p> <p>“Rec’d of Chas. E. Hall & Co., check fifteen dollars through hands of George T. Presby to apply on expense account.</p> <p>“John J. Crawford.”</p> <p>The defendants objected to the admission of the receipt, unless it should first be shown that the defendants had knowledge of it when it was taken. The judge admitted it, and the defendants excepted.</p> <p>The plaintiff testified that, when he signed the contract, he knew that Presby had a contract with the defendants, but that he neither knew nor asked the extent of Presby’s authority. He further testified, subject to the exception of the defendants, that when he signed the contract, and acted upon it, “ he relied upon the National Soda Ebuntain Company, knowing them to be Charles B. Hall & Company.”</p> <p>Presby testified that, before hiring the plaintiff, he told the defendants that it was time to force the sale of their goods, and to make a canvass for that purpose, and that they replied they would leave that to him; that he afterwards introduced the plaintiff to them, saying that he was a good man, and was told that he had better hire him. There was other evidence that the defendants had held Presby forth as the general manager of their sales department.</p> <p>One of the defendants testified that the checks given to the plaintiff were made at the request of Presby, and for his convenience, so that he might send money to agents on the road, and that they were charged to him on the cash book of the defendants.</p> <p>At the close of the evidence, the defendants requested the judge to rule that, if the plaintiff when he made the contract knew that Presby was the agent of the defendants, he could not hold the defendants, because the contract, by its terms, was with Presby, and in no way stated that the defendants were to be bound thereby.</p> <p>The judge declined so to rule, and submitted the case to the jury, who returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>Personal Injuries — Employers’ Liability Act — Negligence—Evidence.</p> <p>In an action for personal injuries it appeared that the defendant corporation had a two-story permanent stage extending from its warehouse to the edge of a wharf; that it had a swinging stage, made of heavy planks bolted together strongly by cross-pieces, which was used in connection with the permanent stage, and was run over the decks of vessels, one end resting on the permanent stage, and the other being supported by the ropes fastened to the masts of ves-> seis, from which their cargoes were discharged by being hoisted and delivered upon trucks standing near the outer end of the swinging stage, and thence wheeled into the warehouse; that, while the plaintiff was engaged by the defendant in this work of trucking, a rope which held one corner of the swinging stage, and which was fastened to one of the masts of a vessel, broke, and the stage gave way, and the plaintiff was injured; that the captain of the vessel raised the freight from the hold by tackle and slings, and lowered it into the defendant's trucks, which were about four feet from the outer end of the swinging stage; that the captain employed á stevedore to stand on the swinging stage, manage it, receive the bags and lower them into the trucks; that the ropes and tackle were furnished and operated by the captain and crew of the vessel, and the defendant did nothing in reference to them,'and that several hours before the staging fell the defendant’s foreman, who had engaged the plaintiff and another laborer, told them, “ As soon as the stageman is ready, have your trucks ready to go out.” Held, that it was properly ruled that the action could not be maintained against the defendant, but that it did not follow that the plaintiff was without remedy against the owners of the vessel.</p> <p>In an action for personal injuries occasioned to the plaintiff by the breaking of a rope attached to one corner of a swinging stage and to the mast of a vessel lying at a wharf, while he was engaged in trucking bags of cement and mortar to the defendant’s warehouse, evidence that different kinds of staging were used for unloading sugar elsewhere is immaterial.</p>

<p>Personal Injuries — Railroad — Accumulation of Snow and Ice on Steps of Car — Negligence — Finding — Due Care — Law and Fact.</p> <p>In an action against a railroad corporation for personal injuries occasioned to the plaintiff by slipping upon an accumulation of snow and ice on a step of one of the defendant’s cars, which was part of a train that had run from R. to B., a distance of thirty-five miles, there was evidence of a snow storm which lasted all day in S., about midway between R. and B., and most of the day in B.; that it stopped snowing in B. at nine o’clock in the evening, and was not snowing in S. a little over half an hour later when the plaintiff took the train there for B., where the accident occurred as he was leaving the train; and that the snow was hard, as if it had been there some time. Held, that the jury were warranted in finding that the snow and ice were on the steps of the car before it left R., and that the defendant was liable for not having cleared the step.</p> <p>The question whether a passenger was in the exercise of due care in leaving a railway car, the step of which was covered with an accumulation of snow and ice, upon which she fell and was injured, and who testifies, in an action for her injury, that she saw the condition of the step and fell just as her daughter, who preceded her, warned her, is for the jury.</p>

<p>Divorce—Cruel and Abusive Treatment — Revival of Cause of Divorce after Condonation.</p> <p>At the hearing on a libel for the divorce of a wife from her husband on the ground of cruel and abusive treatment, there was evidence that the libellee had inflicted physical violence on the libellant by striking her with his fist, knocking her down, pushing her about, and pinching her; that he used profane and indecent language to her in the presence of their children, and that this course of treatment continued during a period when the libellee knew that the libellant was pregnant, so that her health was materially affected by his conduct. Held, that the evidence was sufficient to warrant a decree for the libellant.</p> <p>At the hearing on a libel for divorce "on the ground of cruel and abusive treatment, the judge properly ruled that a letter written by the libellant to the libellee condoning his misconduct, “if accepted and acted on by him, is conclusive evidence of condonation of all causes of divorce then known to the libellant, unless the libellee was guilty of such subsequent misconduct as legally to invalidate the same.”</p> <p>To revive a cause of divorce for cruelty, it is not necessary that the misconduct subsequent to condonation should be sufficient of itself to warrant a decree for divorce without regard to the previous cruelty, but it is enough if there are such frequent acts of unkindness or persistent ill treatment as to warrant a well grounded belief that, if the cohabitation continues, the ill feeling will quickly break out in acts of gross cruelty'.</p>

Tort, for personal injuries occasioned to the plaintiff in consequence of being struck by an electric car while crossing the street. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.

<p>Petition, for a writ of mandamus to compel the Clerk of Courts for the county of Middlesex to transfer an action of contract, with the papers therein, from the Superior Court to the Supreme Judicial Court, and to receive and enter the same therein at the charge of the petitioners upon the payment of the entry fee. Hearing before Morton, J., who, at the request of the parties, reported the only question raised for the consideration of the full court. The facts appear in the opinion.</p>

<p>Two actions OF CONTRACT, for goods sold and delivered. At the trial in the Superior Court, before Sheldon, J., the jury returned a verdict for the plaintiff in each case; and the defendant Gay alleged exceptions, the nature of which sufficiently appears in the opinion.</p>

<p>Petition by an architect to enforce a lien, under Pub. Sts. c. 191, for the preparation of plans and specifications, and for the supervision of the erection of a building. Hearing in the Superior Court, without a jury, before Dunbar, J., who found that the usual and ordinary charge for the services of an architect in the preparation of plans and specifications and the supervision of the erection of a building is five per cent upon the actual cost of the building, of which three and one half per cent is for the preparation of plans and specifications, and the remaining one and one half per cent is for the supervision. The judge ruled that the petitioner was entitled to maintain his lien for his services of supervision, and established the lien at S73.27, which was one and one half per cent of the amount actually expended upon the building. To this ruling both parties excepted, and, at their request, the judge reported the case for the determination of this court. If the ruling was right, the petitioner’s lien was to be established for $73.27; otherwise, there was to be a new trial.</p>

Contract, on a recognizance against Maria E. Sprague and Ellen M. Abbott, bail of Nellie McFadden. At the trial in the Superior Court, without a jury, before War dwell, J., it appeared that the original action in which the first recognizance was given was a complaint to the Police Court of Chelsea against McFadden for maintaining a liquor nuisance. The defendants filed special answers in abatement, alleging grounds stated in the opinion.

<p>Contract, on a bond dated March 13, 1895, executed by the Allston Real Estate Company, an unincorporated association of individuals, as principal, and Charles F. Murphy and Joseph Lewenberg, as sureties. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion.</p>

Contract, on a written agreement, and on an account annexed, to recover for services rendered as an engineer in laying out and locating the defendant’s railroad, and in preparing the plans required for its construction.

<p>Two ACTIONS of tort, under St. 1887, e. 270, § 1, as amended by St. 1893, c. 359, and under § 2, brought by the administrator of John Dacey to recover for the conscious suffering of his intestate, and by the next of kin of the intestate to recover for his death without conscious suffering, in consequence of an accident which occurred near a switch in the defendant’s freight yard at Attleborough on the night of March 30,1894, while the deceased was engaged in the performance of his duties as a switchman on a freight train of the defendant.</p> <p>Trial in the Superior Court, before Lilley, J., who ruled that the actions could not be maintained, and directed a verdict in both cases for the defendant; and the plaintiffs alleged exceptions. The material facts appear in the opinion.</p>

Hearing before Barher, J., who reserved the case for the consideration of the full court, in substance as follows. The petition, dated December 16, 1895, was to the Probate Court for the County of Middlesex, for license to sell, for payment of the debts of the intestate and charges of administration, real estate in Malden.

Bill in equity, filed June 4,1896, to restrain the defendant from the violation of the covenants of a mortgage deed. The case was submitted to the Superior Court, and, after a decree for the plaintiff, to this dourt, on appeal, upon agreed facts, in substance as follows. On September 13,1890, Sarah E. Lawrence was the owner in fee of the land shown as lots B, C, D, E, and F, on the subjoined plan.

<p>Bill in EQUITY, filed August 31, 1891, by a husband against his wife, to procure the cancellation of a deed alleged to have been obtained from him by fraud, and to have been executed by him, without consideration, by accident and mistake.</p> <p>In the Superior Court issues-were framed for the jury, which were tried before Hammond, J., and the case was afterwards heard on its merits by the same judge, who dismissed the bill; and the plaintiff alleged exceptions. The material facts appeal-in'the opinion, and in the notes of the reporter thereto.</p>

<p>Bill in equity, to compel the defendant railroad company-to open and perpetually maintain a private way at grade across its track in Milton. The bill alleged that the way was appurtenant to certain premises of the plaintiff described in the bill. The answer denied that the plaintiff owned the way claimed in the bill, and that the defendant had obstructed any right of way belonging to the plaintiff; and also alleged that any right of way appurtenant to the plaintiff’s land described in the bill was taken by a location upon and taking for railroad purposes' of the land over which the right of way existed, and that specific damages were paid for the interruption of the way caused by such taking.</p> <p>The case having been referred to a master, “to find the facts and report the evidence so far as requested by either party,” he found and reported as follows :</p> <p>“ 1. On and before July 9,1887, the plaintiff’s father, Nathaniel F. Safford, possessed a piece of real estate in Milton, containing over fifteen thousand square feet, some ninety odd feet of the westerly side of which abutted on Adams Street, and about thirty feet of the same side abutted on land occupied by the defendant for the old railroad station, which station made a jog in said land ; and the northerly side of said land abutted on the defendant’s railroad tracks and location. The front part of this lot of land was occupied by a dwelling-house, known as the Suffolk Resolves House, which house was on the line of Adams Street, and next southerly to the defendant’s old railroad station ; the rear part of said land, which was considerably lower in grade than the front part, was occupied by stables let to other tenants than those occupying the house.</p> <p>“ 2. The plaintiff’s father had a right of way by prescription, for teams and foot passengers, in a different locus than that now in dispute, appurtenant to said estate. This way was nearly twenty feet wide, and ran from the northerly side of the land, near the stables, in a northerly direction, and crossed the defendant’s railroad tracks nearly eighty feet easterly of Adams Street, and a little over twenty feet easterly of the old railroad station, which station made a jog in the land, as before stated.</p> <p>“ 3. In 1887 the defendant enlarged and extended its terminal facilities, and constructed a new railroad station. For this purpose, on July 9, 1887, it took by due proceedings 'at law a portion of the land belonging to the plaintiff’s father, containing fifteen hundred and forty square feet, adjoining and directly easterly of the old railroad station. On this land thus taken they constructed a new railroad station, which wholly occupied that part of said land which had been the starting point of the prescriptive waj', and wholly blocked up that portion of the defendant’s land over which the way had passed.</p> <p>“ 4. The defendant in 1887, and after July 9 of that year, laid a stone or concrete platform in front of the new station, and parallel with its tracks, which platform extended over and across the locus of the prescriptive way, and continued beyond that point some eighty feet easterly. At the easterly termination of the concrete platform a space of about twelve feet was left, and beyond that space easterly was another wooden platform. Planking was laid down by the defendant between and each side of its tracks opposite and northerly of the space between the concrete and wooden platforms, and, after the prescriptive way had been interrupted, the plaintiff’s father and his tenants, and afterwards the plaintiff and his tenants, made the same use, without objection by the defendant until June 24, 1892, of the land and planking opposite said space, and of the land between the two platforms that previously had been made of the prescriptive way. This new use of what may be called for identification a substituted way commenced immediately after the prescriptive way had been interrupted by the construction of the new station, which was in the autumn of 1887; and this substituted way is the right of way alleged in the present suit. The defendant' on June 24, 1892, obstructed and stopped the substituted way by a fence along the northerly line of its location. The rear portion of the plaintiff’s premises, upon which the stables stand, is of so much lower grade than Adams Street, that the most convenient and economical means of access to such portion is by a way across the defendant’s railroad, and the stables were moved and relocated by the plaintiff’s father so as to be reached by the substituted way at the time its use commenced.</p> <p>“ 5. The plaintiff’s father, being aggrieved at the damages awarded him by the county commissioners for the taking of said land, duly filed a petition, which was entered in July, 1890, in the Superior Court, asking that his damages might be assessed by a jury. Pending that petition, and before a hearing thereon, the plaintiff’s father, in April, 1891, died intestate, leaving a widow, Josephine E. M. Safford, who was appointed-administratrix of his goods and estate, and was admitted to prosecute the petition. The plaintiff was sole heir at law, and said land with its appurtenances descended to him in fee, subject to the widow’s legal rights.</p> <p>“ 6. The said petition for damages was tried in May, 1892, and the jury rendered a verdict for the petitioner for the sum of $746.61, upon which verdict judgment was entered on June 17, 1892, and said judgment was satisfied on June 20, 1892. The presiding justice at the trial of said petition submitted to the jury the three following questions.</p> <p>“First. ‘Was there a right of way appurtenant to the petitioner’s land across the land of the respondent at the time of the taking of a portion of the petitioner’s land by the respondent?’</p> <p>“ Secondly. ‘ If so, state the amount of damages sustained by the petitioner by reason of the interruption to said way or inconvenience caused in its use by the taking by the respondent.’</p> <p>“ Thirdly. ‘ State also where said right of way was, if one existed.’</p> <p>“The jury answered the first question, ‘Yes’; the second question, ‘ One hundred fifteen dollars and fifty one-hundredths (this is included in the verdict) ’; and the third question, ‘ As per plan of Whitman and Breck, dated March 22, 1871.’</p> <p>“ The way laid down on the said plan of Whitman and Breck, which plan was in evidence, is the way described in paragraph two of this report, and called herein a prescriptive way. During the trial of said petition, the jury viewed the premises, saw the location of the old prescriptive way, and the location of the substituted way, and had their attention called by the petitioner’s counsel to the fact that the use of the substituted way had taken the place of the prescriptive way. The admissibility in this case of the record and proceedings in said petition for damages was objected to by the defendant, and was admitted subject to its objection.</p> <p>“ 7. The plaintiff claimed upon all the evidence the right of way alleged in this suit, being that described in paragraph 4 of this report and called a substituted way, and that it had been substituted for and grafted upon the former prescriptive way, and that the plaintiff’s right to this new or substituted way had been in issue, and had been established and determined in the aforesaid petition for damages, and that the jury in that case assessed damages only for the difference in value of the use of the prescriptive way and the substituted way. I find that the plaintiff had no right to the substituted way, and that the use thereof, as hereinbefore stated, was by the implied revocable license of the defendant.</p> <p>“ 8. Upon inspection and perusal of the record and evidence in the said petition for damages, I find:</p> <p>“ First. That the plaintiff was not a party to that suit, and his alleged rights in the substituted way could not have been in issue therein.</p> <p>“ Secondly. That said petition was for the assessment of damages sustained by the estate of Nathaniel F. Salford, on the ninth day of July, 1887, which date was anterior to any use of the substituted way.</p> <p>“ Thirdly. That in fact and in law no right to the alleged sub stituted way was in issue in said petition, or submitted to the jury for consideration.</p> <p>“ 9. I find and report that the plaintiff is not entitled to the •right of way alleged in his bill.</p> <p>“ 10. At the plaintiff’s request, I report and return to court herewith all the evidence taken before me, including three plans.”</p> <p>The plaintiff took sundry exceptions to the finding of the master on the evidence, and moved to recommit the report, with instructions to report only the evidence upon which he based his findings, and such other evidence, taken before him, as either party might request. The court overruled the motion, and the plaintiff appealed. The court entered a decree that ' “ the plaintiff's exceptions to the master’s report be overruled, the master’s report confirmed, and the bill dismissed with costs”; and the plaintiff appealed.</p>

<p>Equity—Creditors’ Bill — Purchaser for Value without Notice.</p> <p>A., the owner of a vessel, conveyed the same by a recorded bill of sale to B. as security for a debt, and B. subsequently conveyed it to C. on payment by him of A.’s debt. C. also paid the vessel’s bills, and the two sums together amounted nearly to what the vessel would have brought on a forced sale. The vessel, which was insured, was subsequently lost, and D., to whom A. was indebted, brought a bill in equity under Pub. Sts. c. 151, § 2, el. 11, against A., C., and the company by which the vessel was insured, to reach and apply the insurance money in payment of his debt. Held, that, as C. was a bona fide purchaser for value, and as it did not appear that A. had any interest in the policy, the bill was properly dismissed.</p>

Tort, for personal injuries occasioned to the plaintiff by the flying apart of the cylinder of a dusting machine in use in the mill where he was employed. The declaration contained two counts, one at common law, and the other under the employers’ liability act, St. 1887, c. 270. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, the nature of which appears in the opinion.

<p>Personal Injuries — Negligence — Due Care.</p> <p>If a person puts his head into an elevator well for the purpose of shouting up the shaft for the car to come down, and it does come down and strikes him, an ac. tion for the injuries occasioned thereby cannot be maintained.</p>

<p>Trust and Trustee—Accumulation of Surplus Income — Interest.</p> <p>On a bill in equity for instructions, brought after the death of the testator’s widow, as to the duties of the trustee, to whom was bequeathed twenty thousand dollars which was to furnish income and interest to be paid to the testator’s surviving son for life after the widow’s death, as well as nearly all the rest of the testator’s property, the court said that the trustee was to pay over the full income of twenty thousand dollars, which was less than half of the trust estate, for life, that the surplus of income was to be accumulated, and that the ultimate disposal of the fund would not now be determined.</p> <p>Giving property in trust to carefully manage and invest it necessarily implies that any income is part of the trust fund, and if such income is in excess of the sums which the trustee is directed to pay out before the final termination of the trust, such excess of income must necessarily be held in the trust and accumulate until it can be paid out in accordance with the directions of the testator; and it cannot be said, therefore, that any part of the income is undevised property.</p> <p>The frequent use of the phrase “ interest and income ” in a will and codicil does not indicate an intention to direct the payment of interest at the rate of six per cent a year, whether earned or not, on the trust fund in question, and any additional income which the fund may yield.</p>

<p> Reduction of Alimony on Remarriage of Libellant. </p> <p>Alimony, though granted by a decree of the court in pursuance of an agreement of the parties, is not a vested right beyond the power of the court to change, and the remarriage of the wife is prima facie cause for its reduction to a nominal sum.</p>

Tort, for personal injuries occasioned to the plaintiff by falling on an artificial formation of ice caused by the dripping of water from defective gutters and conductors on a flight of stairs used in common by the tenants of the defendant. Trial in the Superior Court, before Hammond, J., who ruled that the plaintiff was a mere licensee, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Insolvency — Appeal to Superior Court — Declaration — Issues — Amendment — Statute.</p> <p>The provisions of Pub. Sts. c. 157, § 37,' that upon entering an appeal from a decision of a judge of the Court of Insolvency disallowing a claim to the Superior Court, “ the creditor shall file in court a statement in writing of his claim, setting forth the same substantially as in a declaration for the same cause of action at law,” do not give him the right to file a declaration for a new cause of action, nor does he have under the other words of the section, “ and like proceedings shall be thereupon had in the pleadings, trial, and determination of the cause as in an action at law commenced and prosecuted in the usual manner,” any right to an amendment changing the cause of action which has been so brought up by appeal; and, while the cause remains in the Superior Court, it is competent for the justice before whom the case comes on for hearing to refuse to try the case on issues which have been, as matter of law apparent on the face of the record, erroneously, allowed by another justice, without first changing the order allowing the amendment.</p>

<p>Four petitions to the Superior Court, under St. 1890, c. 428, and acts in amendment thereof, to recover damages to the petitioners’ several estates by reason of the change of grade of West Fourth Street, in Boston. Trial in the Superior Court, before Bichardson, J., who reported the cases for the determination of this court, in substance as follows.</p> <p>After the jury in the Superior Court had returned verdicts in favor of all the petitioners, and judgment had been entered upon them, the petitioners applied to the clerk to have their costs taxed, claiming in addition to the ordinary costs a large sum of money for expenses in the preparation of plans and the employment of experts upon the value of real estate. The clerk declined to tax any costs; the petitioners applied to the judge, who affirmed the decision of the clerk, and the petitioners appealed to this court.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendants’ employ. Trial in the Superior Court, before Maynard, J., who, at the close of the evidence for the plaintiff, directed a verdict for the defendants; and the plaintiff alleged exceptions, the nature of which appears in the opinion.</p>

<p>Contract, brought originally against the Point of Pines Company, Franklin W. Lodge, and Charles H. Thayer, for services rendered in furnishing music at the request of the defendant Thayer. The plaintiff, having discontinued against the first two defendants, proceeded against Thayer, who set up a discharge in insolvency, to obtain a special judgment against him under the statute to enable the plaintiff to proceed against the sureties on a bond given to dissolve an attachment. Trial in the Superior Court, without a jury, before Bond, J., who declined to give any of the rulings asked by the defendant, and found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Bill ik equity, filed February 25, .1896, to have a conveyance of land from the plaintiff to the defendant set aside and annulled, and a reconveyance thereof from the defendant to the plaintiff. The bill alleged that the plaintiff was old,' infirm, and very deaf, and by reason thereof incapacitated from attending properly to business, and that the defendant, on April 30, 1892, fraudulently taking advantage of the plaintiff’s incapacity, procured her to sign a deed of land in Chelsea without paying her any consideration therefor, and without informing her what the writing was, or what its effect was, and by falsely and fraudulently representing said writing to be a mere matter of form; that she was now informed that the deed was a deed of the above described land, and that it had been recorded in the registry of deeds; that there had been no previous agreement to convey the land, and that she had no knowledge that the writing was a conveyance of the land, and that she never intended to make any such conveyance.</p> <p>At the trial in the Superior Court, without a jury, before Sheldon, J., the plaintiff, who was ninety years of age, was called as a witness by her attorney, and testified at length.</p> <p>The plaintiff’s attorney then called as a witness one Mrs. Gleason, a sister of the plaintiff, who had known her intimately all her life, and who had lived with the plaintiff during the two years preceding the date of the trial.</p> <p>The plaintiff’s attorney, expecting to show, and being prepared to show, the mental condition of the plaintiff at the time of the execution of the deed as compared with her mental condition when appearing in court, and that there had been but slight change in said condition, asked the witness the following question : “ Please state whether your sister [the plaintiff] has failed or has not failed in her mental capacity during the past five years.” The question was objected to by the defendant, and excluded, and the plaintiff excepted. ¡No objection was made to the form of the question.</p> <p>At the conclusion of the hearing, the judge entered a decree dismissing the bill; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in September, 1896, and after-wards was submitted on briefs to all the justices.</p>

<p>Tort, for personal injuries, occasioned to the plaintiff while a passenger in Lynn, on a street car belonging to the defendant. At the trial in the Superior Court, before Hammond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.</p>

<p> Termination of Tenancy at Will by Conveyance of Landlord—Rent. </p> <p>At the trial of an action for rent, it appeared that the defendant was a tenant at will of the plaintiff, at a certain monthly rental, “ payable after the termination of each month of the tenancy ”; that the agreement was made on September 15, 1894, and by its terms the defendant forthwith entered upon his tenancy; that on October 14, 1895, at 2.30 p. M., the plaintiff conveyed the premises to a third person, with an understanding between them, unknown to the defendant, that he should occupy until he should receive one month’s notice to quit, and that he remained in possession during the month for which the action was brought. Held, that the conveyance by the plaintiff terminated the tenancy at will, and that the action could not be maintained.</p>

<p>Contract, to recover of a part owner of a schooner for labor and supplies furnished in fitting her out for a fishing voyage. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon the findings of an auditor as an agreed statement of facts, the nature of which appears in the opinion.</p>

<p>Promissory Note — Indorser and Co-maker — Declaration in Set-off—Statute.</p> <p>Though a person who indorses a note before delivery to the payee is entitled to notice as an indorser under the Pub. Sts. c. 77, § 15, he is in all other respects a co-maker, and cannot, under the Pub. Sts. c. 168, § 8, file a declaration in set-off for a debt due to himself alone.</p>

<p>Mechanic's Lien — Rights of Mortgagee.</p> <p>At’ the trial of a petition to enforce a mechanic’s lien, it appeared that the petitioner was under a general contract for service with the prior contractor, and began to work under it upon the respondent’s house before a mortgage thereon was recorded ; that he continued such work regularly until the house was ready for plastering, when he was ordered by his employer to work on a house on an adjacent lot and elsewhere; that on his order he returned to work on the respondent’s house; and that there was nothing to indicate at any time any change in his contract in reference to the house until he finally ceased to work upon it. Held, that the interruption of the petitioner’s work was temporary, that the work itself was done under the same contract, not only in reference to his relations to liis employer, but also in reference to his relation to the building, and that his lien took precedence of the mortgage.</p>

<p>Petition under St. 1894, c. 474, for the appointment of three commissioners to determine the valuation of the petitioner’s water plant purchased by the respondent city.* The court appointed Everett C. Bumpus, John R. Freeman, and John W. Ellis, commissioners, and they made the following report:</p> <p>The company, acting under St. 1880, c. 235, entitled “An Act to incorporate the Newburyport Water Company,” built its water works and supplied water to the inhabitants of the city of Newburyport from 1881 until the transfer of the property to the city on January 29,1895. At this time the company was supplying 2,246 takers, by means of which some seven tenths of the population of the city were receiving water for domestic purposes; and the city, in its municipal capacity, was being supplied for fire purposes under a contract it had made with the company. The water takers connected their respective premises with the system by undergoing the expense of having a pipe run upon their premises to their buildings from the company’s mains and service branches in the streets, the company paying all other expenses in making such connections. The net income derived by the water company from its works in 1894 was $31,180.56. The company, since 1881, had laid in the streets of the city many miles of its piping, its hydrants, and other appliances used in connection with the water plant.</p> <p>The award was made upon the following principles:</p> <p>“ Section 1 of chapter 474 in terms directs us to put a fair value upon the property for the purposes of its use by the city, and further provides that this value shall not be enhanced on account of the future earning capacity or good will, or of the franchise of the company. To determine the fair value of the property for the purpose of its use by the city, as to any part that had any value in use to the city, we have valued the same at its value for that use at the time of the transfer. We have, as we think the statute so directs us, excluded from consideration the future earning capacity and good will of the plant, and have not valued any franchise right whatever which the company owned or held at the time of the transfer, except its rights to take water as acquired and exercised by the taking under St. 1880, c. 285, § 2. Neither have we, for the same reason, taken into consideration the earning capacity, whether past, present, or future, or any income which the company had or might have derived from, its plant.</p> <p>“ Subject, then, to these rules, we have valued the property in its entirety as a plant in full operation, engaged in supplying its water for domestic and municipal purposes, and in so doing we have taken into consideration the following elements of valuation, and excluded all others :</p> <p>“ 1. Cost of reproduction of all that part of the physical plant used in pumping and delivering water, less any depreciation. This method was employed without objection by all the experts who testified.</p> <p>“ We have further valued the following:</p> <p>“ 2. All lands and buildings and easements in and to lands used for piping, and other appliances of the Water Company, not included within the real estate connected with the pumping station.</p> <p>t£ 3. The personal property.</p> <p>“ 4. All books and plans conveyed to the city.</p> <p>“ 5. Water collected in the reservoir and wells upon the date of the transfer.</p> <p>“ 6. The water right of the company, taking into account not only the land, reservoir, dams, and everything else that created the water right, but also the quantity and quality of water that gathers at this point, and its adaptability to the purposes for which it was in use when sold.</p> <p>“ We have valued this right at what we have deemed it was worth for the purposes of its use by the city, taking into account its capacity, adaptability, usefulness, and connection with and relation to the plant, and having regard to the fact that we are valuing, not what income its water had yielded or might yield in conjunction with the rest of the property, but the value of the right to have water gather at this place to be used for such purposes. It appeared upon the evidence presented that there was only one other practicable source of supply that could be availed of to supply the city and its inhabitants with the same quantity of water that had been supplied by the company, and some question was made as to the quality coming from this source. We heard evidence offered as to the probable cost of creating and maintaining a water right at this source to take the place of the water right used by the company, and, with the other elements above referred to, have taken this evidence into consideration in passing upon the value of the water right conveyed to the city.</p> <p>“7. We further find that the plant was a going concern and in full operation at the time of the transfer, — one that had been tested by experience and with which the city could begin the immediate prosecution of the business of supplying water to the established connections for domestic and municipal purposes (including in the latter hydrant service), — and upon an examination of these facts are of opinion that the property had a greater value for the purposes of its use by the city by reason thereof, than if the plant had not been in full operation, and that this should be considered in passing upon the value of the entire plant.</p> <p>This enhancement we have fixed upon as adding to the value of the property the sum of $40,000. In passing upon the same, we have not made the income derived from the business its element or basis, or any other factor than that above stated.”</p> <p>They further report that, “ In estimating the value of the property transferred, we allowed for the cost of reproducing this piping, these hydrants, and other appliances, as appears in clause 1 of our elements of valuation; but we have not, in that element or in other of the elements of valuation, taken into consideration or valued the exercise of this right, or the right itself, to so use the streets up to the time of the transfer; and whether or not we should so value we leave to the determination of the court, further stating that, upon the evidence presented to us, the exercise of this right and the right itself were valuable. It did not appear upon the evidence presented that the company-paid anything to the city for this right, unless it formed part of the consideration of the company’s supply of water to the city under a contract made between the city and the company to so supply, but the evidence upon this question was not so definitely presented as to enable us to determine whether it entered into the consideration or not.”</p> <p>They thereupon found that the fair value of the property, for the purpose of its use by the city, upon January 29, 1895, was $275,000, with interest.</p> <p>After this finding, at the request of the parties, and upon their agreement made in the course of the hearing that an}' questions of law raised by either party should, at the request of such party, be reserved for the consideration of this court upon the question of the acceptance of the award, certain reservations so made by the parties were reserved, all of which were subsequently waived by the parties except the following, which were reserved at the request of the petitioner.</p> <p>1. The petitioner called John E. McCusker, superintendent, clerk, assistant treasurer, and a director of the company, who had always kept or supervised the beeping of its books and accounts, who testified concerning the construction of the work, the business of the company, fitness of the works for the use of the city, value of the personal property, and other subjects, by whom it appeared that the works were originally built by George H. Norman in 1881, under a contract with the company, the contract price being $295,000. The company had an authorized capital of $300,000, divided into 3,000 shares, each with a par value of $100r 2,902 shares of the stock were issued in 1881 to Mr. Norman, who is and always has been the treasurer and the largest stockholder of the company, in payment for the work of construction done under the contract. The respondent, against the petitioner’s objection and exception to the admission of same, was permitted to ask McCusker, as part of his cross-examination and as bearing on the original cost and character of the construction of the works, as to the price at which Norman sold some of his stock in 1882, and how much of his stock was so sold by him, to which he answered that Norman then sold about 2,072 shares at $60 per share. This valuation of the stock was materially less than the value of the property represented by it as claimed by the petitioner in this case. Later, the petitioner, as part of its case in chief, called Norman as a witness, and examined him fully as to the construction of the works, and the business affairs of the company, and as an expert on the1 value of its property ; and in the course of his examination by the petitioner and by reason of the fact that McCusker had testified to the same and in explanation of the same, in reply to inquiries by the petitioner’s counsel, he testified to the same facts relating to the sales of stock as were testified to by McCusker as above stated, and he further testified to the same facts, without objection, in the cross-examination by the respondent.</p> <p>2. In cross-examination of Norman, who had testified to the cost of construction of the works and the value of the company’s property, the respondent was permitted" to identify by him and put in evidence, against the petitioner’s objection and exception to the same, the returns for the years 1882 to 1894 inclusive, made under Pub. Sts. c. 13, § 38, signed and sworn to by the witness, as treasurer of the company, to the tax commissioner of the Commonwealth for the purposes of taxation, in which the market, value of the stock of the company was stated at different amounts in the various years from $33 to $90 a share, on which basis the property of the company was worth much less than the amount claimed and testified to by Norman. Upon redirect examination, Norman stated that at the time that he made these returns the stock was not selling in the market at all.</p> <p>3. The respondent, as bearing on the value of the property of the company, especially with reference to fire protection, called as a witness Nevitt S. Bartow, who testified that the New England Insurance Exchange is an association of insurance companies which fixes the rates of insurance in New England, and that he was a member of the executive committee of such exchange and chairman of the committee thereof which had jurisdiction with regard to the fixing of insurance rates in Newburyport and vicinity. His attention was called to the condition of Newburyport with respect to the five protection after a large fire there, which occurred on October 31, 1894, and that, in consequence of said fire, he visited Newburyport and made a personal investigation of the efficiency of the water plant for fire protection.</p> <p>The respondent then asked the witness, “ Can you tell what the rates of insurance were in Newburyport in January, 1895 ? ” To which he answered that in January, 1895, the insurance rates in Newburyport were based upon the efficiency of the water supply.</p> <p>He was further asked how the insurance rates of Newburyport in January, 1895, compared with the standard rates of the New England Insurance Exchange. He stated that on January 26, 1895, the insurance rates of Newburyport were advanced 25 per cent over the standard rates established on that date by said Exchange in other places in the vicinity of Newburyport.</p> <p>He was further asked, “ Was such increase of 25 per cent in the insurance rates of Newburyport made because of the superior efficiency of the water plant, or because of supposed inefficiency of it ? ” And the witness answered as follows: “ The system developed certain weaknesses which we considered made the system inefficient. Grave defects were discovered, which led to that advance of rate.” And he further stated that such advance took effect upon January 26,1895, and continued in effect until May 1, 1895.</p> <p>It did not appear that the witness was qualified as an expert to testify in the premises, and the foregoing evidence was not permitted on that ground, but for the purpose of showing as a fact that the insurance rates were so advanced for the reasons ' stated in the evidence.</p> <p>To all this testimony of the said Bartow, the petitioner duly and seasonably objected, and excepted to the admission of the same.</p> <p>4. It appeared that there was a water source known as Jade-man Spring, some 1,500 feet distant from the wells and reservoir of the company, and that McOusker, early in 1893, had made an arrangement with one Henry M. Jackman, who did not have a record title to the land, or any title thereto by possession, so far as it appeared, or any ownership in said spring, but who claimed to own it, and who exercised some acts of ownership and of possession over the same, by which the Water Company built a dam and made certain excavations upon said land, and in 1893 and 1894 pumped from time to time water from the said spring into the reservoir of the company, the amount so pumped being estimated or approximately determined in the testimony to have been 42,000,070 gallons per year. The company paid to the said Jackman for the use of the premises, including the water, and for some wood upon the premises, the sum of $275, and took the following receipt therefor: “Newburyport, Jan. 14, ’95. Received of the Newburyport Water Company $275.00 in full of all claims and demands against said company to date. Henry M. Jackman.”</p> <p>The respondent, upon a claim that it appeared already upon the record, or, if not, the evidence would be forthcoming, that $275 per annum was paid to the said Jackman for said water, as bearing upon the value of the water at the company’s works or in its immediate vicinity, against the petitioner’s objection and exception duly taken, and in answer to the petitioner’s evidence that the water at the company’s works was worth from $90 to $150 per million gallons, put the following question to an expert called by it: “ Have you made an estimate or a computation of the value or cost of the water of the Jackman Spring, based on the assumption that the right to what has been pumped there for a particular year cost $275?” And the witness answered, “ I made the computation on the basis that the gauging of the stream, Jackman Spring, showed a flow of 118,000 gallons a day, making a net flow for the year of 42,000,070 gallons, and on a basis of payment for the use of that water of $275, it figures $6.55 per million gallons.”</p> <p>• It further appeared that no other person or persons had been paid by the company for the use of the water at Jackman Spring during the time covered by the receipt.</p> <p>No other evidence bearing on the payment for the use of this water for this time was introduced.</p> <p>5. The respondent, for the same purpose for which it put the above question, put also the following question to the same witness, against the objection and exception of the petitioner: “ Have you made an estimate or computation of the value or cost of the water of Jackman Spring, based on the assumption that the rights to what has been pumped there for a particular year cost $365, or $1 per day?” And the witness answered, “ Eight dollars a million gallons.” This question was allowed on the undertaking of the respondent to show that such an arrangement had been made. The only evidence subsequently offered by the respondent on this subject is stated in paragraph 6.</p> <p>These estimates of value concerning the Jackman Spring were materially less than the estimates for the value of the water from the petitioner’s land, given by its witnesses.</p> <p>6. The respondent called as a witness its superintendent of the water works, and, against the petitioner’s objection and exception, was permitted to prove by him that in the spring of 1895 and subsequently to the conveyance from the petitioner to the defendant, he was sent by the Water Board of the city of Newburyport to make an arrangement with Jackman for the use by said city of the waters of Jackman Spring, and that he made a contract with Jackman for such use. of said water, by which Jackman was to be paid by the city $1 for each and every day that the water was actually pumped by the city from said spring; and the city pumped water from the spring, under the contract, during this year, fqr some 126 days,—an average of 144,000 gallons per day.</p> <p>At the argument before the commissioners, the petitioner asked them to adopt the following propositions :</p> <p>1. The St. 1893, c. 471, entitled “ An Act to supply the city of Newburyport with water,” never took effect, because the city had failed and refused to pass the vote to purchase the property of the Newburyport Water Company, as provided for in § 12. (It was admitted that under that act the city duly passed a vote, on August 25,1893, refusing to purchase the corporate property of the Newburyport Water Company, and that on September 7, 1893, it duly passed a vote to accept said act of 1893. It was claimed by the respondent that the city of Newburyport, by virtue of and upon such vote of acceptance, was thereupon authorized to establish and maintain a system of water supply under and according to said act of 1893.) 2. The city of Newburyport acquired from the -Newburyport Water Company all the incorporeal as well as the corporeal property of said company, including therein all the rights, franchises, easements, and privileges of every description belonging to the company.</p> <p>3. By St. 1894, c. 474, the Water Company was authorized to sell, and the city was bound to buy: (1) all the rights; (2) all the privileges ; (3) all the easements; (4) all the lands ; (5) all the water; (6) all the water rights; and (7) all the structures, pipes, machinery, and other personal property used in supplying the city and its inhabitants with water. That such construction should be given to the statute as that every one of these words should have its full force and meaning; that none of them should be treated as vague and meaningless words; but assuming that they were put into the statute as meaning something, if possible, such construction should be given to the statute as should give force and meaning to every one of these words in connection with the other words of the statute.</p> <p>4. The term “rights and privileges” in St. 1894, c. 474-, § 1, included the right of the company to distribute water and collect water rates; it did not mean or include the franchise of the company to be a corporation ; and the term “ franchise,” as used in the last sentence of § 1, should be construed as meaning only the franchise to be a corporation, or the charter of the corporation.</p> <p>5. The last sentence of said § 1 did not preclude the commissioners from considering either the past or future earning capacity of the Water Company in determining the value of the property for the purposes of its use by the city of Newburyport, and the past earning capacity of the company should properly be considered by the commissioners in determining the value of the corporate property for its use by the city; that the term “ good will,” used in the same sentence of § 1, meant such peculiar and additional value as might pertain to the property by reason of the fact that the city succeeded to the business as conducted by the Water Company.</p> <p>6. The phrase “the fair value of said property for the purposes of its use by said city” entitled and required the commissioners to determine what could fairly be realized by the city from the property, and to award an amount which should represent the fair value of the property, including therein all the incorporeal rights, privileges, and franchises belonging to said company.</p> <p>The commissioners in their report state concerning the same : “We may assume that in so far as the propositions contained in the first three clauses are concerned, they are correct, and the definition of ‘ good will ’ set forth in the fifth clause we accept. Our estimation of the value of the property, however, is based upon the theory that, whether or not the company vested everything in the city described in clause two, we still remain of the opinion that the elements of valuation which we have already herein stated are all that we can take into consideration in making our award, and we have therefore confined ourselves strictly to these elements of valuation, and do not include anything else.”</p> <p>The commissioners further held that they had the power to determine who should pay, and find, as a matter of fact, that the city ought to pay the costs of the reference, and, at the request of the respondent, reserved for the consideration of this court whether they had power in law so to determine.</p> <p>Hearing before Barker, J., who, the petitioner having moved that the report be recommitted to the commissioners, reserved for the determination of the full court the questions whether the award should be recommitted and whether it should be accepted.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the neglect of the defendant to keep a certain highway in repair, whereby the plaintiff, travelling thereon, was hurt. There was no allegation in the declaration, nor was there any proof at the trial, that notice of the time, place, and cause of the injury was given to the defendant within thirty days from the time the injury was received.</p> <p>Trial in the Superior Court, before Mason, C. J., who, at the close of the evidence for the plaintiff, directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract, for boarding a horse. Trial in the Superior Court, before Richardson, J., who reported the case for the determination of this court in substance as follows.

<p>Personal Injuries occasioned to Minor — Negligence—Due Care.</p> <p>At the trial of an action against a street railway company for personal injuries sustained by the plaintiff in consequence of being run overby one of the defendant’s cars, evidence that the car was moving very rapidly through a much frequented street of a city; that the gong was not sounded; that the plaintiff, who was nearly nine years of age, with a companion who was of about the same age, before starting to cross the street looked both ways to see if a car was . approaching, and, seeing none, was crossing the street slowly when the defendant’s car came upon, struck, and ran over her, is competent to be considered by the jury on the question of due care of the plaintiff and negligence on the part of the defendant.</p>

<p>Information in the nature of quo warranto, filed April 12, 1897, for the purpose of trying the title by which the defendants claim to have been elected to the office of selectmen of the town of Newbury.</p> <p>The case was heard by Barker, J., who dismissed the information, and reported the case for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Trustee Process — Principal Defendant — Joint Stock Company — Partnership.</p> <p>A partnership association formed under the laws of Pennsylvania contained in Brightiy’s Pardon’s Digest, (12th ed.) 1086-1088, is not a corporation, and cannot he sued here as such.</p>

<p>Promissory Note — Exclusion of Defence of Maker of Note in Action thereon by Indorsee for Value before Maturity without Notice.</p> <p>The maker of a promissory note cannot, as against an indorsee before maturity, for value, and without knowledge or notice of any defence thereto by the maker, recoup the damages by him sustained in consequence of a breach of warranty by the payee in the sale of merchandise to the maker in payment for which the note was given.</p> <p>In an action by an indorsee a gainst'the maker of a promissory note, upon which there has been a want or failure of consideration in whole or in part, the production of the note by the indorsee and the proof or admission of the genuineness of the signatures make out a prima facie case in his favor, which is not met merely by proof of a want or a failure of consideration, but the burden of also introducing evidence that the indorsee did not take the noto in good faith for value before maturity is on the defendant.</p>

<p>Remedy of Owner of Stock against One to whom it has been Pledged by Another by whom it has been Embezzled— Guardian and Ward—Estoppel.</p> <p>A guardian deposited a certificate of stock owned by and standing in the name of his ward in a bank for safe keeping, and subsequently borrowed money from the bank for his personal use, for which he gave his note and indorsed his ward’s certificate in blank “ A., by B., Guardian,” and deposited it as collateral security for the payment of his note. The note was afterward paid by the guardian, but before its payment, C., the cashier of the bank, fraudulently pledged the certificate as security for his personal debt to D., who took it without notice of C.’s want of authority to pledge it, and supposing him to be in rightful possession thereof. D. then took the certificate to the office of the company issuing it. and asked for a transfer of the stock and for a certificate thereof in his own name, and upon the refusal of the company to make the transfer without the authority of the Probate Court, C., at the request of D., on a petition signed “ B., Guardian, by C.,” of which neither the guardian nor ward had any knowledge, by publication or otherwise, procured such a decree, and the stock was transferred and a new certificate thereof issued to D. Held, that the ward was entitled to a decree against D. for the transfer and delivery of the certificate of stock, and the payment of all the dividends received thereon by D., and, since there was no privity between the bank and D., the fact that the bank was paying the expenses of the plaintiff’s litigation is immaterial.</p> <p>A certificate of stock, although indorsed in blank for the purpose of authorizing the making of an instrument of transfer over the signature, is not a negotiable security.</p> <p>A ward who is the owner of a certificate of stock which his guardian has indorsed in blank and deposited for safe keeping in a bank, whence it is fraudulently abstracted by the cashier and pledged for his personal debt, is not estopped by the negligence of his guardian from reclaiming his certificate of stock from the person to whom it was pledged by the cashier of the bank.</p>

<p>Tort, for personal injuries received by the plaintiff, while in the defendant’s employ, from the blow of a swinging log. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Contract, by Henry H. Pike, surviving partner of the firm of H. H. Pike and Son, for the benefit of Joshua Benshimol, to recover for work done and materials furnished in the construction of a bridge in the defendant city under a written contract. Trial in the Superior Court, without a jury, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff introduced in evidence the report of an auditor, to whom the case had been referred, and rested.</p> <p>The auditor found and reported the following facts.</p> <p>The written contract between the firm, then composed of Henry H. Pike and his son Henry E. Pike, and the defendant city was entered into on May 23, 1888, for the construction of a stone bridge at Prospect Street in Waltham by the Pikes, who were stone masons and contractors; and Joshua Benshimol and one Shea were their sureties thereon for the due performance of the work, which was to be completed by November 1 of that year, and for the price of $38,000.</p> <p>With the contract were connected full printed and written specifications detailing the materials, quality, form, and mode of construction of the bridge, providing fully for the inspection and superintendence of the work on behalf of the city by the city engineer, John F. Moore, and an inspector, one Barton, under the general control of the street commissioners of the city, and that payment should be made monthly of eighty-five per cent of the amount of work done, to be estimated by the city engineer, and the balance in thirty days after the completion of the contract to the satisfaction of the street commissioners. There was also a proviso that the city could determine the contract on the insolvency of the contractors or discontinuance of work by them for ten days after notice from the street commissioners, who could then on behalf of the city relet the work at the contractors’ risk and expense.</p> <p>Benshimol, beside being surety on the contract, was a creditor of the Pikes, and also had furnished all the money to carry on the work, but had no other relation to their contract or interest therein before October, 1888. On October 5, 1888, by an accident at the bridge, Henry E. Pike was killed and Henry H. Pike severely injured, so as to be incapacitated from attending to the work. These facts were at once known to the city and its officials as well as to Benshimol, but no claim was made by either party to the contract to terminate it on this account; on the contrary, Benshimol, by advice of his counsel, kept on with the work under it, the mayor of the city assenting; but the payments for what should be done were to be through Pike. One Connelly was employed by Benshimol to do the necessary stone work, with the knowledge and assent of the city engineer, and under the inspection of Barton ; and one Fifield was, at the suggestion of Benshimol, employed to superintend the construction, but, proving unsatisfactory, was replaced by consent by Dexter Pratt, who continued to act until the work was suspended in January, 1889, as hereinafter stated. Monthly estimates were made by Moore, the city engineer, of the work done in October, November, and December, by the men employed by Benshimol, and were reported to the street commissioners and approved by them ; and these amounts were paid to Benshimol and receipted for by him in the form “ H. H. Pike & Son, by Joshua Benshimol.” The estimate for the October work did not name by whom the work was done, while those for November and December described the work as done by H. H. Pike and Son. On October 18, 1888, an assignment of the contract was executed to Benshimol by Pike, as surviving partner of H. H. Pike and Son, providing however that any profits beyond the reimbursement to Benshimol of his expenditures should belong to Pike. This was never recorded, nor in terms communicated to the city or its officials. On November 19, 1888, however, another assignment was executed, transferring to Benshimol all interest under the contract, and this assignment was duly recorded on February 4,1889. It also appeared that on December 10, 1888, Benshimol petitioned' the board of aldermen of Waltham for reimbursement for insufficient estimates for the two preceding months by the city engineer, and, while he claimed that he was no longer bound as surety, still referred to the Pikes as contractors. A hearing was had before the aldermen, but no action was taken by them on the petition. Early in January, 1889, an agreement was drawn up by the city solicitor and signed by the mayor, providing for a suspension of the stone work until March 15 following. Pike had on January 4, 1889, signed a similar agreement for suspension until April 8 following ; but this extension had not been agreed to by the city. On January 9 and 22 of that year the street commissioners notified Pike to attend to some filling, which was complied with by Benshimol, with the knowledge and to the satisfaction of the city engineer, who so certified on February 6. After the recording of the assignment of November 19, Benshimol, by his counsel, on February 9, 1889, requested the assent of the city thereto, which was refused by the mayor. At the expiration of the agreed suspension of work on March 15, the street commissioners addressed to Pike a notice requiring him to resume the conduct of the work. Pike did not comply with this, on the ground that he had no further interest in the contract; and Benshimol, who was informed of it at the time, denied the right of the city to treat or proceed with Pike, insisted on his own right to proceed independently of the latter, and to complete the work by any competent constructor, and, having made an arrangement with J. H. Leavitt to that effect, proposed him as such to the street commissioners. This proposal was rejected by the street commissioners. Benshimol then attempted to resume work with the same employees as he had had before the suspension, and was compelled by the city to desist, and the street commissioners thereupon offered the contract at Pike’s risk, in pursuance of the provision in the contract above referred to, to Leavitt, and on April 17, 1889, contracted with him to finish the bridge for the sum of $21,865, which he did, and was paid that amount. It was admitted by the city that it had on hand over and above this payment to Leavitt, and $16,032.40, which was the amount paid to the Pikes or to Benshimol, the sum of $2,008.60, the balance of the contract price; but it did not admit Benshimol’s title thereto.</p> <p>The testimony fully established the knowledge by the city through all its officials, mayor, aldermen, street commissioners, and engineer, that after the accident to the Pikes the work was continued at the expense of Benshimol, and by the skilled workmen and superintendent in his employ ; that there was no fraud or invalidity in the assignment to prevent its transferring the right-to all moneys due under the contract for work done, and not lawfully paid out in pursuance thereof; and that there was also no question that the present suit was authorized by Pike.</p> <p>But the amount sought to be recovered by Benshimol was not limited to the balance of $2,008.60. He contended that by the assignment he was entitled to the contract itself thereafter; that this was ratified and confirmed by the recognition of him by the city, especially by its acceptance of the work done by him during October, November, and December, 1888; that therefore the city had no right, as already mentioned, to treat with Pike, or insist on Pike’s personal completion of the work in March, 1889, or to treat the latter’s non-compliance as a breach ; that the employment of Leavitt by the city was unauthorized; and that he, Benshimol, was not bound by the amount paid to Leavitt, but was entitled to recover in this action all that he or Pike had paid out under the contract, namely, $24,700.77, less only what they, or either of them, had received from the city, to wit, the sum of $16,032.40.</p> <p>“ It seemed clear upon the evidence, that, though the continuation of the work went on in the name of Pike and under the terms of the original contract, there was no understanding or expectation that he should resume its conduct personally, or that the skilled superintendence and labor given to it by Benshimol’s employees should not continue to the end. These did in fact continue for upwards of three months, during which time whatever was incurred and paid for the work, including the amount now sought to be recovered, was paid by Benshimol, and it was only after the two months’ suspension by agreement that the street commissioners insisted on Pike’s personal resumption. I report, therefore, subject to the ruling of the court thereon, that the city could not treat a continuation of the performance of the contract by Benshimol and his employees in the same manner as had already been approved of by it for the three months to January, 1889, as a breach entitling it to take the contract from Pike and Benshimol and employ Leavitt to finish the work at the plaintiff’s expense.</p> <p>“ While, therefore, it did not appear but that if the contract had been fully performed by Benshimol, as he claimed the right to perform it, either through Leavitt or any one else, it might have cost him as much as Leavitt was paid by the city, yet the burden of proof appeared to be upon the defendant to establish this as a fact; and it could not, after terminating the contract without any breach on the plaintiff’s part and depriving him of the opportunity of completing the work, charge him with what it expended for that purpose, without showing that he could not have done the work at less expense in the manner required by the specification. This it produced no evidence to show.”</p> <p>After deducting certain items, aggregating $445.87, the auditor found that the plaintiff was entitled to recover the sum of $8,222.50.</p> <p>The defendant called as witnesses Henry FT. Fisher, who was mayor of the defendant city during the entire period in which the bridge was being constructed, and also John F. Moore, who was the city engineer and in supervision of the work of construction under and by direction of the street commissioners of. the city, who testified that on the tenth day after the service of the notice of March 15,1889, to resume work, to wit, on March 25, 1889, Pike, in company with Moore, called on the mayor and asked for an advance of money, and stated that without it he could not proceed with the work, and such advance was refused, and Pike said he should not go on with the construction.</p> <p>The above witnesses admitted that they testified substantially to the same facts before the auditor.</p> <p>In,rebuttal, the plaintiff produced the man who was in charge of the work when the city compelled a suspension of it, and who was acting by direction of Benshimol, and so stated to the inspector;-and he testified that he was on March 25, 1889, performing work required by the contract, when the inspector of the street commissioners ordered- him to desist, whereupon, at his request, the inspector signed a memorandum stating the above facts. The plaintiff also introduced the auditor, who produced his notes of the testimony given by Henry H. Pike, now deceased, and testified that Pike before him testified that no work on the bridge was personally authorized by Pike after March 15, 1889, and that none was done except on March 25,1889, which was being done under Benshimol’s direction when ordered by the inspector to desist.</p> <p>The defendant requested the judge to give the following rulings :</p> <p>“ 1. If Pike, between March 15 and March 25 inclusive, did not do or authorize any work on the bridge, and Benshimol during that time performed work on the bridge, while claiming that he had a right to do so independently of Pike, and while denying the defendant’s right to treat with Pike, such work was not the work of Pike or his agents and would not interfere with the right of the defendant to enter upon the work.</p> <p>“ 2. If Benshimol worked on the bridge between March 15 and March 25, while claiming that he had a right to do so as the assignee of Pike, and while claiming that the defendant had no right to treat with Pike, and when Pike did not authorize any work, such work cannot now be availed of by Pike, on the ground that Pike and Benshimol acted upon a mistaken belief that the assignment to Benshimol and the conduct of the defendant as matter of law substituted Benshimol for Pike.</p> <p>“ 3. If Pike failed to resume work within the ten days’ notice given him under the contract, then the plaintiff is entitled to recover only such sum of money as is found due the plaintiff by the auditor, namely, the sum of $2,008.60, as a balance coming to him after the completion of the contract by the city.</p> <p>“ 4. If Pike on March 25 gave the city notice that he did not intend to resume the construction of the bridge, either by himself or his agents, and did not resume, then the city, acting under the contract, had the right to sublet the contract and charge the same to Pike.”</p> <p>The judge found the facts to be true, as stated by the auditor and witnesses; refused all of the requests for rulings; and found for the plaintiff in the sum of 18,222.50. The defendant alleged exceptions.</p> <p>The case was argued at the bar in March, 1897, and after-wards was submitted on briefs to all the justices.</p>

<p>Contract, against Edward F. Reynolds and Andrew J. Leonard, upon a bond given for the faithful performance by the defendant Reynolds of his duties as an employee of the plaintiff corporation. Trial in the Superior Court, without a jury, before Bond, J., who found for the plaintiff; and the defendants alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1897, and after-wards was submitted on briefs to all the justices.</p>

<p>Broker's Commission— Trial—Law and Fact.</p> <p>If a verdict is ordered for the defendant in an action upon the facts agreed at the trial, the plaintiff’s offer of proof, and the evidence, and there is a view of the evidence which, in connection with the facts agreed and offered in proof, would have justified a verdict for the plaintiff, a new trial will be ordered.</p>

<p>Contract, by a person engaged in negotiating insurance in domestic companies, having no license under St. 1887, c. 214, either as agent or broker, authorizing him to negotiate insurance in foreign insurance companies, against an agent of a foreign insurance company for one half of the commission upon the premiums paid to a foreign insurance company by two individuals for policies upon their lives.</p> <p>Trial in the Superior Court, without a jury, before Hammond, J., who found for the defendant; and the plaintiff alleged exceptions, the nature of which appears in the opinion.</p>

<p>Bill in equity, to set aside a conveyance of an undivided third of certain real estate in New Bedford, alleged to have been obtained by the defendant Thomas Bassett from the defendant Keziah R. Price by means of fraud, undue influence, and misrepresentations, and by a conspiracy between him and Keziah and the defendant Orville Bassett, to deprive the plaintiff of his reversionary interest in the same. Hearing before Morton, J., who ordered the bill to be dismissed with costs, and, at the request of the plaintiff and with the consent of the defendants, reported the case to the full court. The facts appear in the opinion.</p>