Volume 169 — Massachusetts Reports

<p> Trust not Revolcad and Superseded by New Trust. </p> <p>A voluntary trust completely established, with no power of revocation reserved, cannot be revoked or set aside at the will of the person by whom and with whose property it was set on foot.</p> <p>Where an absolute discretion is not clearly given, to be exercised at the will of the person empowered to make a sale or appropriation of principal, an exercise of the power, to be valid, must be founded upon a reasonable judgment dealing with existing facts and reasonable anticipations of the future, and having due regard for the purposes for which the power was given, and also for the rights of those whose interests are injuriously affected by its exercise.</p> <p>A woman placed funds in the hands of A., in trust to pay over the income for her support and maintenance “as she shall require it, and such portion of the principal as she in her judgment may deem necessary for her comfort and support, and at her death, after the payment of her just debts and funeral expenses, to divide ” what remained “ equally between her two children, . . . share and share alike, if they be then living, and if either or both of them be dead then to their children by right of representation.” After having paid over the income for five years, A. received from the settler a letter stating, “ I hereby request of you at this time ” a certain sum, “ or whatever may be the value of the principal, and which I deem necessary at this time for my comfort and support.” A few days thereafter a new trust instrument was signed hy him and the settler in duplicate, and he was informed that the letter and this new trust agreement constituted a revocation of the first trust, and that the property held hy him thereunder had been revested in him under the second trust. Held, on the death of the settler, that the first trust was not revoked, and the second trust was not substituted therefor.</p>

<p>Bill in equity, filed September 4, 1890, against the PotterLovell Company, the Second National Bank of Boston, and, by amendment, against John Brooks and George S. Bullens, assignees in insolvency of the Potter-Lovell Company, and against the North Star Boot and Shoe Company, and divers other defendants, makers of certain promissory notes, which, with promissory notes made by the plaintiffs, the bill alleged, had been fraudulently pledged by the Potter-Lovell Company as security for its own debt to the Second National Bank of Boston. The prayer of the bill was that the assets might be marshalled; that each of the makers of the notes named as defendants should be directed to contribute his equitable share to the payment of the indebtedness of thePotter-Lovell Company to the Second National Bank; for the appointment of a receiver; for an injunction; and for other relief.</p> <p>The case was heard on the pleadings, the report of a master, and an agreed statement of facts by Barker, J., who reserved it for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Petition in equity, filed January 14, 1897, to establish- a claim on an insurance policy in the defendant company, which was disallowed by W. O. Underwood, the receiver. Hearing before Barker, J., who reserved the case, on the petition and an agreed statement of facts, for the determination of the full court. 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 — Action — Mistrial.</p> <p>In an action by a broker against A., another broker, and B., the former owner of land, to recover a commission on the sale of the land, it was held that the evidence disclosed no special contract which bound A., and as the jury had been allowed to consider a payment made by A. for the purpose of bringing about the sale as a payment by a joint party to B.’s contract with the plaintiff, and thus as not having brought about the sale as against the plaintiff, it was held that there was a mistrial with regard to B.</p>

<p>Three informations in the nature of a quo warranto, alleging that the defendants, Donahue; Callahan, and Cahill, had usurped the office of city solicitor, superintendent of streets, and city messenger of the city of Lowell, respectively.</p> <p>The cases were heard by Allen, J., on the pleadings and agreed statements of facts; and, in the cases of Donahue and Cahill, evidence that the action of the city council in removing them from office was based on partisan grounds was offered by the defendants, and excluded.</p> <p>In the first case, the statement of agreed facts alleged, in substance, that on January 6, 1896, Francis W. Qua was, by the city council of the city of Lowell, duly elected city solicitor of that city pursuant to an ordinance of the city of Lowell, which provided “ there shall be chosen annually in the month of January or February, and whenever a vacancy occurs, by concurrent vote of both branches of the city council, a city solicitor who shall enter upon the duties of' his office on the first day of March in each year, and he shall hold his office for the term of one year from the time of entering upon the duties thereof, and until his successor is appointed or he is removed; and the said city solicitor may be removed at the pleasure of the city council ”; that on the first day of March, 1896, Qua entered upon the performance of his official duties, which he had continued to perform until the time of filing of the information; that on January 4, 1897, the city council, pursuant to the same ordinance, by a concurrent vote of both branches re-elected Qua city solicitor for one year from the first; day of March thereafter ; that on February 19, 1897, the mayor, purporting to act pursuant to the authority of St. 1896, c. 415, § 1, appointed the defendant to be city solicitor for one year from the first day of March, 1897; that on March 9, 1897, by a joint order originating in the board of aldermen, and adopted in concurrence by the common council, the defendant was by a two thirds yea and nay vote removed from the office of city solicitor; and that, although on March 10, 1897, the defendant was notified by the city clerk of such removal, he claimed to be the duly authorized city solicitor, and under such claim he made a demand upon Qua for the books and records pertaining to the office, and interfered with the management and conduct of actions pending in the courts to which the city of Lowell was a party.</p> <p>In the second case, the agreed statement of facts alleged, in substance, that, acting under authority of St. 1896, c. 415, the mayor of the city of Lowell on February 19, 1897, appointed the defendant to the office of superintendent of streets, and that thereafter on March 2, 1897, the city council, purporting to act under the authority of an ordinance of the city of Lowell, which provided that “ there shall be chosen annually in the month of January or February, and whenever a vacancy occurs, by concurrent vote of both branches of the city council, a superintendent of streets, . . . who shall hold their respective offices until their successors are chosen or they are removed, and the said superintendent of streets . . . may be removed at the pleasure of the city council,” by a joint order originating in the common council and adopted in concurrence in the board of aldermen, by a two thirds yea and nay vote removed the defendant from the office of superintendent of streets, and on March 9,1897, by concurrent vote of the city council elected one Fowler to be superintendent of streets; but that the defendant, although notified of his removal, assumed to perform the duties of such office, and refused to surrender the same to Fowler.</p> <p>In both the first and second cases it appeared that, upon the introduction into the common council of the order for the removal of Donahue, the objection was raised that a copy of the order had not been posted in accordance with a rule of that board that any joint order originating there, except an order for a joint convention “ shall be copied, and shall, previous to the hour for calling the meeting to order, be posted in some prominent place in the council chamber, where it may be open to the inspection of the members.” The point was sustained in Callahan’s case, and thereupon the council took a recess, during which, by direction of the president, the order for the removal of officers was posted in the hallway outside the council chamber upon the bulletin board. After the recess, the point was overruled in Donahue’s case, and the orders of removal in both cases were then adopted.</p> <p>In the third case the statement of agreed facts alleged that on January 4,1897, the mayor of the city of Lowell, acting pursuant to the St. 1896, c. 415, appointed the defendant to the office of city messenger; that on March 9, 1897, by an affirmative two thirds vote of the city council, the defendant was, upon a joint order introduced in the common council, and adopted in concurrence by the board of aldermen, removed from the office of city messenger, and on the same day one Going was, by a concurrent vote of both branches of the city council, elected to the office of city messenger; that in making such removal the city council purported to act under the authority of an ordinance of the city of Lowell, which provided “ there shall be chosen annually by ballot in the.month of January, by concurrent vote of both branches of the city council, a city messenger, who shall enter upon his duties on the first Monday of February, and he shall be removable at the pleasure of the city council ”; that, although the defendant had been notified of his removal, he refused to deliver the keys of his office and the property in his custody to his successor ; that if competent, it could be shown by evidence dehors the records, that the order for the removal of the defendant was not copied and posted in the council chamber prior to the meeting at which it was introduced, pursuant to a rule of that body, but that it was copied and posted during a recess of the common council before action had been taken thereon ; and that the objection was not raised while the order was under consideration, although it had previously been raised while a similar order for the removal of another officer was under consideration at the same meeting, and had been overruled by the chair.</p> <p>The presiding judge reserved the cases for the consideration of the full court.</p>

<p>Assault — False Imprisonment — Evidence — Exceptions — Law and Fact — Arrest by Private Person — Principal and Agent.</p> <p>A verdict for the defendant in an action for an assault and battery and false imprisonment renders immaterial exceptions to the exclusion of evidence directed to the question of damages.</p> <p>An exception to the exclusion of a question put to a witness will not be sustained, if no offer of proof was made of what the excepting party expected to prove by the answer.</p> <p>In an action for false imprisonment, declarations, after the plaintiff’s arrest, of the defendant’s servant, who made the arrest, are inadmissible in evidence.</p> <p>Evidence that the plaintiff in an action for false imprisonment had never, prior to his present arrest, been arrested or complained of for any crime, and that he had a good reputation, is properly excluded.</p> <p>If tlie plaintiff in an action for false imprisonment was innocent of the charge upon which he was arrested by the defendant’s servant, and the latter, in making the arrest, was acting solely under the defendant’s authority, the defendant will be liable, but if the servant was acting solely under the direction of a police officer, and had no authority from the defendant to make the arrest, the latter will not be liable.</p> <p>At the trial of an action for false imprisonment, the plaintiff having been arrested by the defendant’s servant, if there is evidence that the servant for the time being was acting under the direction and control of a police officer, the judge cannot rule, as matter of law, that the servant in what he did was acting as the servant of the defendant, but the question is properly submitted to the jury.</p> <p>No exception lies to the refusal to give instructions in the terms requested, if they are fully covered by the instructions given.</p> <p>In an action for false imprisonment, the plaintiff, who was arrested by the defendant’s servant while leaving the defendant’s premises, is not entitled to have the jury instructed that, if the servant “arrested the plaintiff, complained of him to the officer on the street, and at the station house caused him to be imprisoned for the purpose of carrying out his employer’s instructions to look out for the thieves and protect the property, he was acting within the scope of his employment, and the defendant is liable.”</p>

<p> Construction of Contract. </p> <p>A city took A.’s property for the purpose of a public park, and granted him permission to occupy the premises until a certain date, upon condition that interest on the damages to be recovered should be waived from the date of the taking to such other date. A. then executed an indenture with B., by which A. covenanted that B. might occupy the premises in A.’s place for such time as the city had agreed or might agree with A. that they might be so occupied; and B. covenanted that he would pay A. a sum equal to six per cent per annum upon the amount of the damages sustained by A. by the taking of his property, computed from a day named to the end of any term for which the city might agree with A. that the premises might be so occupied. Afterwards the city extended the time during which A., might occupy the premises free from rent, and the damages for the taking were agreed upon between the city and A., judgment was entered for the same, and they were paid before the expiration of such time. Held, in an action upon the indenture by A. against B., that the indenture was not to be so construed as to add to the amount of damages determined by the judgment an estimated value of the occupation permitted by the city after the payment of the damages as the total on which the six per cent rental to be paid by B. to A. was to be computed.</p>

<p>“ While there was not what could be called an agreement definitely formulated to that effect, yet there was an understanding between the parties, as shown by their conversations, and in an indefinite way, that Eugene was to get his money when they should sell their land. The three women were desirous of laying out a street through the land, and of cutting up the land into house lots, and of realizing money from the sale thereof, which was done, and some of the house lots were sold before the death of said Nancy. No lots have been sold since her death. He, Eugene, paid taxes on the real estate and interest on the mortgage note before, and he paid taxes on the real estate after, he bought the mortgage and note, at the request of one or the other of the parties, and for their joint benefit. In brief, he advanced money from time to time to one or the other of the women, as the case might be, or for taxes or interest, or other purposes, and there was no specific agreement made as to when or how he was to be repaid. The interest, as shown by the schedules, on the advances I have calculated at six per cent, on the ground that an agreement simply that the advance should be secured by the mortgage, and there being no agreement as to the rate of interest thereon, cannot be construed as an agreement to pay more than the legal rate of interest on such advances, although a larger rate of interest is, by the terms of the mortgage, to be paid on the money originally secured thereby.</p> <p>“ The three women made sale of lot No. 29 for $4,000. They agreed with Eugene, in consideration of his releasing said lot from the lien of the mortgage, to pay him $2,000 of amount received by them on said sale. Eugene gave the release of the mortgage, but the three women never paid said $2,000 to him.”</p> <p>As the defendant has been allowed in account all the advanees and payments of money for taxes made after he became the owner of the mortgage, his argument is now confined to the advances and payments of money for taxes made before his purchase of the mortgage, and to advances and payments of money made for other purposes, both before and after that purchase. The substance of the findings of the master is that, although there was no agreement that the advances and payments made by the defendant, whether made before or after his purchase of the mortgage, should be secured by the mortgage, yet there was an understanding in an indefinite way that the defendant should get his money when the plaintiffs should sell their land. Only one agreement is found, and that is the agreement of Nancy Brooks and the plaintiffs with the defendant that, if he would release lot No. 29 from the mortgage, they would pay him $2,000 of the $4,000 which they were to receive from a sale of the lot. He gave the release, they sold the lot and received $4,000, and never paid the defendant the $2,000 promised.</p>

<p>Bill in equity, filed in the Superior Court December 16, 1895, to redeem land in Chelsea from a mortgage. A decree was entered for the plaintiff; and the defendant appealed to this court. The facts appear in the opinion.</p>

<p>Appeal from a decision of the Court of Insolvency, allowing a claim of the appellee against the insolvent estate of the firm of Ceiley and Wright, composed of Herbert H. Ceiley, Warren I. Wright, and Nathaniel D. Whitney, upon a promissory note signed in the firm name. Trial in the Superior Court, without a jury, before Hammond, J., who found for the appellants; and the appellee alleged exceptions. The facts appear in the opinion.</p>

<p>Equity Practice — Partnership — Receiver — Insolvent Debtor — Jurisdiction — Intervention of Creditor holding Collateral Security — Order for Sale of Security — Decree.</p> <p>It is within the discretion of the Superior Court, after the report of a receiver appointed in a suit in equity to dissolve a partnership has been confirmed, and his account allowed, and a dividend ordered to be paid to creditors whose claims have been allowed, to refuse to vacate a decree taking the bill for confessed against the defendant, and permit him to file an answer. Even if such discretion could in any event be revised by this court, no facts appear in this case to warrant a revision.</p> <p>Upon an appeal by the defendant from a decree of the Superior Court sitting in equity, where the evidence is not reported,v if the findings of fact support the decree, and negative all the objections of fact on the part, of the defendant, there is nothing for him to argue before this court except that the decree could not lawfully be passed on the facts found.</p> <p>The Superior Court, having taken jurisdiction of a bill in equity by one partner against another to dissolve the copartnership, and for the appointment of a receiver to collect the assets and convert the property into money and pay the debts, and having proceeded to do this without objection, is not deprived of its jurisdiction by the mere fact that it turns out that the partnership cannot pay its debts in full.</p> <p>In a suit in equity to dissolve a partnership and for the appointment of a receiver, a creditor of the firm holding collateral security for his debt, consisting of a promissory note containing a power of sale, may intervene by a petition, asking that the security may be sold and the proceeds applied to the payment of his debt, and that he may be admitted to prove his claim for the residue, and an order for the sale of the security is within the authority of the court.</p>

<p>Tort, against a hospital for causing an autopsy to be made upon the dead body of the plaintiff’s child without the plaintiff’s consent. The defendant demurred to the declaration, assigning as ground therefor that the matters contained therein “ are not sufficient in law for the plaintiff to have his action against this defendant.” The Superior Court sustained the demurrer; and the plaintiff appealed.</p>

<p>Bond to dissolve Attachment — Poor Debtor’s Recognizance — Evidence — Arrest — A ction — Defence — Waiver.</p> <p>Oral evidence is incompetent to contradict the records of a court.</p> <p>It is no defence to an action upon a poor debtor’s recognizance that the creditor made no attempt to find property of the debtor upon which the execution on which he was arrested could be levied before so arresting him.</p> <p>The arrest of a debtor upon an execution, within thirty days from the date of the judgment on which the execution issued, is not a waiver of the right to sue, after the arrest, on a bond given to dissolve the attachment made in the action in which the judgment was obtained, but the creditor may maintain at the same time actions upon the bond, and upon a recognizance given by the debtor to relieve himself from the arrest.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. At the trial in the S.uper rior Court, before Hammond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the alleged negligence of the defendant. At the trial in the Superior Court, before Bishop, J., the jury returned a verdict for the plaintiff, and the defendant alleged exceptions, in substance as follows.</p> <p>The plaintiff was injured by having the -fingers of his right hand caught between two revolving wheels of a machine used in hoisting and piling cotton. It appeared that this machine was located in the yard of the defendant’s mill, the left of the machine being very near the walls of one of its buildings, through a window of which ran a belt over the tight and loose pulleys, and the power was furnished thereby. There was a little shed built over the machine large enough to enable a man to do his work upon the machine, and open on the right hand side, which was the side towards the cotton bales. There was on the right of the machine a sloping bank, six or seven feet high. The bales of cotton which the plaintiff was engaged in raising and lowering were on the same bank, about forty or fifty feet away from the machine. There was a hydrant somewhere between the cotton bales and the place where the plaintiff stood. It was admitted that the plaintiff was a man of ordinary intelligence. The plaintiff testified that he was twenty-seven years of age and brought up on a farm in Maine; that he came to Lowell in 1885, and after working for a week in another mill went to work for the defendant corporation, where he continued to work to the date of the accident, December 22, 1891. He first shovelled coal for about two weeks, was then for two months a yard hand doing work in the mill yard, then a watchman, part of the time day watchman and part night watchman ; during the time he was a yard hand he had nothing to do with operating machinery, but assisted to unload and take inside machinery which came to the mill; while he was night watchman he used to run a machine some, hoisting cotton that was in the storehouse. The gearing of this machine was covered or boxed, and in using it he stood in front of it instead of on the side, and the two levers of the machine were one on his right and the other on his left as he stood facing the machine; in other respects the machine was like the one upon which he was injured; when he was put to work upon the machine in the storehouse he was instructed how to run it; but he had never had any experience at work in operating any machine other than these two.</p> <p>The plaintiff testified that he was set to work upon the machine on which he was injured on December 22, 1891, by the overseer and third hand; he wras given no instructions how to operate it, was told to go down and run the machine; the machine was kind of down in the bank on the right side of the mill, side of the weave room down at the foot of the embankment, there was a kind of a little shed built there over it; it was a kind of dark cloudy day; there was a belt going from the speed in the mill around a pulley and out through the window to the machine in the shed; the cogs were running very fast, and there were noises, and he could not hear anything except the machine; the place where he stood was, he should think, six or seven feet from the top of the bank and forty or fifty feet away from the cotton bales which were being moved, which were also on the top of the bank; he had to watch when the men at the bales hooked on to the bales, and watch when the bales got up high enough to stop them, and when to let them down, and a hydrant intervened between the place where he stood and the cotton bales, so that sometimes they would get up so far he would have to kind of lean over to see when they were hooked on. The witness illustrated to the jury the operation of the machine, which was in the court room, and it appeared that when operating it he stood at the side of the machine instead of in front, and that this brought both levers in front of him instead of one on each side. In describing the manner in which he received his injury he testified that the bale was going up after having been hooked on to the top of the bale to pile it up, and he was getting hold of lever No. 2 to stop it; that he was hoisting the bale with lever No. 1, and was watching to see how the bale got up “ and get hold of this, you know, to let it down after it got up, and my hand went right in there when I reached after this lever,” that he had to be watching this cotton to see when it got up; and “ I had to kind of look over this way ” (leaning). He testified that the man at the bales called out to him when to hoist, but after that he got no orders and would have to say when the time came to stop, shift his belt by the lever, and lower; that he ran the machine, piling cotton about an hour and a half in the forenoon and about an hour and a half in the afternoon, to the time of the accident.</p> <p>The defendant asked the judge to rule that, upon all the evidence, the plaintiff could not maintain his action; but the judge declined so to rule.</p> <p>The judge instructed the jury that the plaintiff could not recover unless he was put to work under circumstances of peculiar danger, and was not apprised of the danger; that if an employer puts a servant to the use of machinery under circumstances which impose a peculiar risk, and the servant is inexperienced in operating machinery under such or similar risks, it is the duty of the employer to apprise the servant of the dangerous character of the undertaking in which he is about to engage; and that if the use of the machinery under the circumstances testified to by the plaintiff, and in a situation he had never worked in before, imposed a peculiar risk, arising from the fact that his attention had to be placed on the cotton as a part of his duty, and his mind was fixed upon that part of the work and was thereby distracted from the machinery and gearing, and by reason thereof the injury occurred, he might recover; to which instruction, and the refusal to rule as requested, the defendant excepted. In other respects the instructions given were not objected to by the defendant.</p>

Contract, in two counts, upon a special promise and upon an account annexed. Trial in the Superior Court, before Lilley, J., who, at the defendant’s request, ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts sufficiently appear in the opinion.

<p>Appeal, by the executor of and certain legatees under the will of. Eugene F. Dunbar, from a decree of the Probate Court disallowing it. Hearing before Holmes, J., who reported the case for the determination of the full court, in substance as follows. The testator was ill in bed and unable to leave it. He signed his will .in the presence of the subscribing witnesses, who thereupon withdrew to another room in the house, no part of which was visible from any part of the room where the testator remained, and there subscribed as witnesses. They then returned to the presence of the testator, and one of them, with the assent of the others, said that they had signed his will, and showed him. the signatures, and he assented thereto. The judge ruled that these facts did not satisfy the requirements of the statute, and disallowed the will. The appellants from the decree of the Probate Court appealed to the full court. If the ruling was right, the decree of the Probate Court was to stand; if wrong, the will was to be established.</p>

<p>Devise and Legacy — Construction of Will.</p> <p>A testator, by his will, gave to trustees $300,000, and directed that this sura be set apart as soon as possible, and the income thereof paid to his wife during her life. He also gave a like sum to trustees, and directed that it be set apart as soon as possible, and the income thereof paid to his daughter during her life; and after the decease of either the principal of her trust fund, “as it shall then consist,” was to be paid over to certain charities. The will then provided as follows : “ But if, by losses or depreciation of my property, it shall be found at my decease insufficient for the setting apart of both the trust funds in full, I direct that, if my wife should first decease, so much of her trust fund shall be then transferred to the principal of the trust fund for my daughter as will make up that deficiency of her fund. . . . The following legacies are to be paid only after full provision of income for my wife and daughter during their respective lives.” The executors set apart both trust funds in full, partly in money and partly in securities, and transferred them to the trustees for the benefit of the wife and daughter. The wife died, and the securities held in trust for the daughter depreciated in value, after such transfer, so that the fund became less than $300,000. Held, that the daughter was not entitled to have the deficiency in her trust fund made up out of the principal of the fund which was held for the benefit of the wife during her life, before such principal was distributed among the charities named as legatees.</p>

<p>Bill in equity, by the executors of the will and codicil of Edward L. S. Hammond, to obtain the instructions of the court as to whether certain legacies were to be paid out of the income or out of the principal. Hearing before BarJcer, J., who, at the request of the parties, reserved the case for the determination of the full court upon the bill and answers. The facts appear in the opinion.</p>

<p>Contract, to recover a broker’s commission. Trial in the Superior Court, without a jury, before Hardy, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Obtaining Property by False Pretences — Indictment—Motion to Quash —Defence — Evidence.</p> <p>A motion to quash an indictment, the objections stated in which are general, and not assigned specifically, as required by Pub. Sts. c. 214, § 25, is rightly overruled.</p> <p>It is no defence to an indictment for obtaining property by false pretences that the title to such property, which came into the defendant’s possession as treasurer of a corporation, did not pass to himself, but to the corporation.</p> <p>At the trial of an indictment for obtaining property by false pretences, evidence that the money obtained by the defendant’s fraud was disbursed by a corporation of which he was treasurer, and that he personally received no benefit from it, is incompetent.</p>

<p>Bill in equity, filed in this court October 14, 1895. The bill alleged that the plaintiff, a resident of Chattanooga, Tennessee, was in the year 1891 appointed by the United States Circuit Court for the Eastern District of Tennessee, receiver of the Cardiff Coal and Iron Company, a corporation duly organized under the laws of Tennessee; that he was duly qualified as such receiver, and had ever since held that office; that among the assets which came into the hands and ownership of the plaintiff as such receiver was a book account for $1,000, and two notes, each for $4,275, dated April 24, 1890, both signed by Stillman B. King as trustee, and both payable to the order of the Cardiff Coal and Iron Company; that upon the second of these notes partial payments of principal, amounting to $3,100, were made during the year 1890, leaving $1,175 due upon principal; that each note stated that it was “ given in part consideration for land this day bought of the said Cardiff Coal and Iron Company, and a lien is retained on said land to secure the payment of this note ”; that King, as the plaintiff was informed and believed, and therefore averred, in making the notes and in purchasing the land for which they were given, was acting as trustee or agent for certain persons, but for what persons the plaintiff was not informed; and that, by making and delivering the notes in the manner and form in which they were made, he became personally liable for the payment thereof; that on or about August 1,1891, the plaintiff brought suit in the United States Circuit Court for the Eastern District of Tennessee against King to enforce the payment of the notes ; that personal service of process was duly made upon him within the district and jurisdiction of said court, and he appeared by counsel, and filed an answer which was sworn to by himself personally ; that the suit was also brought against a large number of other persons, who had bought land of the company, and given their notes in payment of the same; that it was contested by King and the other defendants, not only in the United States Circuit Court for the Eastern District of Tennessee, but also in the United States Circuit Court of Appeals and in the United States Supreme Court; that at all stages of the suit the plaintiff prevailed against King and the other defendants, and finally, on September 3, 1895, obtained a final decree against him for the sum of $9,488.10 debt, and the costs; that at no stage of the suit was the death of King suggested by his attorneys, or by the present defendant, or by any one else, and it was not until after the decree was entered that the plaintiff ascertained that King had died some time in the fall of the year 1892; that on December 15, 1892, the defendant was appointed by the Probate Court for the County of Suffolk administratrix of his estate, and thereafter gave due notice of her appointment by publication, and on March 2, 1893, filed in the Probate Court an affidavit setting forth such notice; that the petitioner was informed and believed, and therefore averred, that the defendant, at the time of her appointment as administratrix as aforesaid, was cognizant of the proceedings in the Circuit Court for the Eastern District of Tennessee between the plaintiff in this suit as plaintiff and the said Stillman B. King and others as defendants; and that she had from that time forward, until the decree was entered in said suit in Tennessee, employed and continued to employ counsel to represent the interests of the estate of Still-man B. King in said litigation in Tennessee ; that substantially all the estate left by King was situated in Massachusetts, which, according to the inventory filed on March 2, 1895, showed realty to the amount of $10,550, and personalty to the amount of $12,955.90 ; that no account had been filed in the Probate Court by the defendant; that King left no estate in Tennessee except the lots of land purchased of the Cardiff Coal and Iron Company, which had been sold under an order of court, and the proceeds applied in part payment of the notes; that the two years allowed by Pub. Sts. c. 136, § 9, for bringing suits against the defendant as administratrix expired before he had any notice or knowledge of the death of King; that the defendant, by omitting to suggest the death of King, although she was cognizant of said suit, was guilty of a fraudulent concealment of the same; that the plaintiff was not chargeable with culpable neglect in not prosecuting his claim by a suit in Massachusetts within the next two years, and justice and equity required that he should now have judgment for the amount of his claim against the estate of King; and that this proceeding had been begun and was prosecuted by the plaintiff, not only for general creditors, but for the benefit of persons who, upon the security of the notes mentioned in the bill, in good faith and before maturity thereof, advanced to the Cardiff Coal and Iron Company sums of money fully equal to the amount of the notes; and that after crediting all partial payments and proceeds of land sold, as stated in the bill, there still remained due to the pledgees or their representatives a sum equal to the amount sought to be collected from the defendant.</p> <p>The prayer was that judgment might be rendered for the plaintiff for the amount of his said claim against the estate of King.</p> <p>The defendant demurred to the bill, assigning as grounds therefor, want of equity, that the plaintiff had not stated a good and valid claim against the defendant, and that the cause of action was barred by the statute of limitations, and no sufficient cause was stated in the bill to take the case out of the statute. The Supreme Judicial'Court sustained the demurrer; and the plaintiff appealed to the full court.</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>Petition for the- assessment of damages for the taking of an easement in the petitioner’s land in the Brighton district of Boston, under the Metropolitan Sewerage Acts, Sts. 1889, c. 439, and 1890, c. 270. After the former decision, reported 163 Mass. 386, the case was tried in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The rights described in the takings were as follows: “ The right to carry and conduct under the following described lands, and therein to construct, operate, and forever maintain an underground main sewer, and connecting sewers, drains, manholes, and underground appurtenances, and to repair and renew the same,” the premises therein described being a strip of land 3,295 feet long, through the petitioner’s premises in the Brighton district, from Western Avenue to North Beacon Street, containing 81,564 square feet of land, and particularly described by metes and bounds, and shown on plans recorded in the registry of deeds with the takings.</p> <p>The first taking described a strip of the above length and twenty feet in width, and was filed on March 26, 1891; and the second described certain strips lying by the side of the twenty-foot strip, and was filed on November 7, 1891. These takings were treated as one at the trial.</p> <p>The petitioner owned a tract of land containing forty-six acres, bounded on the north by the Charles River, on the east by Western Avenue, on the south by Market Street, Wexford Street, and the location of the Boston and Albany Railroad, and on the west by land of one Livermore and by North Beacon Street.</p> <p>At the time of the trial, the State sewer had been completed through the premises and covered over, and the petitioner had built 1,685 feet of sewer upon its premises, parallel to the State sewer, and connected with it at three different points.</p> <p>The petitioner called experts, who testified that the injury to the petitioner’s land in which the easement was taken was fifteen cents a foot on the average, amounting to $12,225; and that the damage to its remaining land was from $40,000 to $50,000. The principal buildings were especially adapted to slaughtering and melting purposes. There was no evidence of physical injury to the buildings; but one expert testified that their value was depreciated ten per cent by the taking.</p> <p>The petitioner also contended, and introduced evidence to show, that the various wells on the premises were either dried up or reduced in depth by the building of the sewer; and that it had been forced to expend about $500, to extend the pipes connecting with the water supply of the city, which was already on a part of the premises, to get a supply to take the place of the water from the wells.</p> <p>The petitioner also claimed damages for the annoyance to and interference with its business occasioned by the work of construction, which obliged it to discontinue the use of the way in which the sewer was constructed, and to use a different and less convenient road for driving in cattle and other purposes; but it was admitted that business went on during the construction without other interruption.</p> <p>Webster F. Warren, called as a witness by the petitioner, testified that he was treasurer of the petitioner corporation, and had been such since 1873; that the petitioner’s buildings, eleven or twelve in number, were mostly built in 1872 and 1873, the last building being completed in 1880; that the construction of the sewer was begun in April, 1891, on the North Beacon Street side, and in August, 1891, on the Western Avenue side; that the work continued until February or March of the following year; that from August, 1891, the work constantly occupied all of the passageway in the rear of the buildings on the river side, so that the petitioner was deprived of the use of it entirely for six or eight months; that much more than the twenty-foot strip was occupied; that the petitioner paid, under protest, an entrance fee of $1,400 to the city to enter the State sewer, saving any rights the petitioner might have to recover it back; that the expense of constructing the connecting sewer built by the petitioner was $2,455.42, not including the entrance fee above mentioned; that the petitioner continued to drain into the river for some time after the State sewer was completed, until they received a letter, dated October 31,1892, from the secretary of the board of health, .containing the following: “ I am directed by the board of health to say that it will be obliged to insist that you proceed at once to discontinue the discharge of drainage from the abattoir into the river”; that it was in consequence of the action of the board of health that the petitioner stopped draining into the river ; and that the business was not in fact stopped at any time.</p> <p>Horace H. Moses, called as a witness by the petitioner, testified that he was a civil engineer, and had had long experience in cutting up tracts of land for various building and mercantile purposes for many years ; and that he had been superintendent of sewers of the city of Boston for two years. After testifying generally to the • effect of the taking by the State upon the development of the land and upon its value, he stated that it was an encumbrance upon the title of all the property covered by it, and if the strip taken was not adapted to any line of public highway it impaired the value of all the property traversed by it to the width of one hundred feet; that he had built sewers in all parts of the city, and had made for the city some unimportant takings; that he considered himself qualified to testify as an expert with regard to the effect of the building of a sewer upon a piece of land like the petitioner’s; that he was not a real estate expert, and did not know the value in dollars and cents of the petitioner’s land; and that he had had occasion to consider the effect of the location of sewers upon the value of tracts of land which he was developing. The witness was then asked by the petitioner the following question: “ To what percentage of its value is this one hundred foot strip affected by that sewer?” Upon objection by the respondent, the judge ruled that the witness was not qualified to answer the question, and excluded it; and the petitioner excepted.</p> <p>In the cross-examination of a witness for the petitioner, the counsel for the respondent, in reply to’a statement by the petitioner’s counsel that “ You are stating an entirely incorrect proposition of law if you are stating that the Commonwealth is bound to keep a sewer there,” made the following remark: “ I think they have obligated themselves by the strongest sanctity of an act of the Legislature to keep this in; they are morally bound to keep it up and repair it.”</p> <p>The counsel’s position upon this question was reiterated in his closing argument. Various experts called by the petitioner testified that the twenty-foot strip taken for the sewer was in a disadvantageous place for a permanent roadway and for the development of the property.</p> <p>William H. Whitney, called as a witness by the respondent, testified that he had been a civil engineer a little over thirty years; that he had had experience in improving lands, building streets, lotting up lands in Boston and vicinity, mostly in Back Bay lands; that he had been consulted as an expert in regard to such matters constantly; that he knew the petitioner’s land in Brighton; that he had made an examination of that land, and had spent one afternoon there two years ago in looking it all over, — looked the deeds over, and consulted plans at that time and some since; that he had made accurate drawings of the land from data furnished by the deeds and other sources, and made a study of the method of development of this tract of land in case it should cease to be used for the present purpose, and studied its possibilities; that in his judgment the best point of entrance for a street upon that territory, and practically the only one, on account of the grade of the land, was at the end nearest to Boston, very close to the river, at the point where the existing roadway goes in, because the front was very narrow, and because of the grade of the other streets it would be impracticable to enter anywhere else in that part of the land; that, in his judgment, the best point of departure of a road upon North Beacon Street was substantially the sanie thing because of the marsh land; that he had plotted the sewer location in the existing road in the course of his studies ; that the location of the sewer was an advantageous line for a road for the development of that property; that considering the property as adaptable for manufacturing purposes, or for development for other purposes, the effect generally of the taking for the sewer made by the Commonwealth was certainly an advantage; that the advantage was clearly seen in the fact that it furnished ample drainage for the land and removed the filth, the accumulation of the filth in the river, which was a great injury to it; that on that point alone it more than overbalanced any trifling waste of the land that might occur; that he certainly saw an advantage, on the whole, to this land; that he had always been interested in the existing drainage scheme of the city of Boston, which was discharged at Moon Island before this sewer was built, and had made a study of it; that as a member of the board of health of Cambridge he became greatly interested in it and its duplication on the north side of the river; that he had nothing to do with designing this system of sewerage or with the construction of it; that he did not think he could recall the sizes of the sewer through the abattoir property; that he did not know about what the size was nor how it was constructed; that he knew what the sizes were between the abattoir property and Moon Island; that where the west side intercepting sewer meets it at Gainsborough Street it had a capacity of seven feet in diameter virtually, and it increased somewhat in going towards Moon Island; that he had no personal knowledge of the size of the sewer above the abattoir property; that he did not know how the interior of that was constructed; that he had made a special study as to what ought to be done if it was necessary to supplement that sewer; that he had been called upon to make special investigation to determine what should be done in the way of increasing or supplementing this sewer, with reference to Cambridge, when he was a member of the board of health ; and that that was after the lower part of the sewer was built, and after the sewer was opened for use for Boston proper, but before the sewer for its entire length was opened and before it was used by the “ abattoir people.” The witness was then asked by the respondent the following question: “ Assuming that the sewer was constructed of the sizes shown on the plan before you and at the grades there shown from the point in Watertown to the connection with the city system at Huntington Avenue, for what length of time would it be adequate for the purpose for which it was designed ? ” The petitioner objected to this question upon two grounds; first, that the witness was not qualified as an expert upon the subject, and, secondly, that the question was not competent. The judge admitted the question, and the petitioner excepted. The witness answered: “ I cannot fix it. Perhaps twenty years from this time it will have to be supplemented by something else, from my knowledge of the capacity of the sewer below Gainsborough Street.” The witness was then asked by the respondent the following question: “ Whether or not, in case that drainage scheme should become inadequate for the territory through which it goes, it would be reasonable or probable that this sewer should be enlarged in that portion which goes through the petitioner’s property ? ” to which question the petitioner objected. The judge overruled the objection, and the witness answered: “ Both the location and the elevation of the new supplementing sewer would require it to be put in another place, and make a second sewer necessary at a higher elevation and in another part of Brighton, not in connection with this taking ”; and the petitioner excepted.</p> <p>Sidney Smith, called as a witness for the respondent, testified that he was city engineer of Rutland, Vermont, and had been an engineer in charge of the construction of this sewer, and had occasion to go to the ground of the petitioner nearly every day, sometimes twice a day, and was familiar with the grades; that in his judgment the sewer would safely sustain a weight of three tons per square foot; that the necessity for repairs was very remote, — he should not expect it to be repaired inside of thirty or perhaps fifty years; that work was done at night by direction of the commission in order to facilitate matters; that the petitioner’s business was slightly interrupted when the sewer was built through the entrance from Western Avenue, when the petitioner’s teams had to come through a private way ; that all the drains of the abattoir were so arranged as to slope towards the Charles River; that if they had located the sewer through the road on the south of the buildings it would have been necessary either to change .their entire arrangement of drainage and plumbing, so as to discharge on the south side of the buildings, or else build a sewer in the road, where the State sewer is built now, and lead that to the south ; that the work began in the petitioner’s grounds about the 1st of July, and the entire work was not cleared up until April, but the sewer was in use and completed before that time; that he should say that there was not a very large amount of territory of the petitioner occupied during the progress of the work; that usually the work was confined to the roadway through which the sewer was built; and that, while the work was going on, there was very little outside the twenty-foot strip occupied during the whole time.</p> <p>The petitioner requested the judge to give the following instructions, which the judge refused to do, except so far as they appear in the instructions given :</p> <p>“ 1. Under the taking of the casement in the petitioner’s land, which the Commonwealth made, it acquired the right, not only to construct, operate, and maintain an underground main sewer, and connecting sewers, drains, manholes, and underground appurtenances, and to repair and renew the same in any part of the strip described in the taking, but also the right at any time to alter and change the surface of the land within the said strip, to dig up the surface and to appropriate the soil and gravel so far as reasonably necessary to carry out the plan and construct the work contemplated by the statute, to remove the said soil a,nd gravel to any other part of the said system of sewers constructed under the statute, and to keep the surface of said strip in any condition which might be reasonably necessary or convenient for the maintenance of an underground sewer, and also the right to exclude the petitioner from the strip described in the taking, to fence the same if it should be at any time reasonably necessary or convenient so to do for the purpose for which the easement was taken.</p> <p>“ 2. The petitioner, at the time of this taking, in March, 1891, had no right to enter such sewer as the Commonwealth might construct in its land. Whether it would or would not acquire the right would depend upon what terms, conditions, and regulations the city of Boston might establish in reference to entering the sewer, and whether it could agree with the city in reference to the sum which the city might require for the permission to enter. Under these circumstances it cannot be found that the petitioner has sustained any peculiar or special benefit by reason of the location of the sewer through its land which can be set off against the damages caused by the taking.</p> <p>“ 3. (In case No. 2 is refused.) If the petitioner’s right or opportunity of entering the sewer is the same kind of right or opportunity, and none other, which other people in the neighborhood may have who have no land taken, such right or opportunity would not constitute a special or peculiar benefit which should be set off against the damages caused by the taking.</p> <p>“ 4. Special and peculiar benefit is not to be found from the special use which the petitioner makes of its property, or the business which it carries on.</p> <p>“ 5. The Commonwealth is under no contract or obligation to maintain that sewer through the petitioner’s land.</p> <p>“ 6. If the petitioner’s drain into Charles River and the sewers of the territory of the Brighton district emptied into the same river, and by the adoption of this metropolitan drainage system the petitioner’s sewage and that of Brighton district were turned into this sewer, the petitioner derived no special and peculiar benefit which can be set off against its damages.</p> <p>“ 7. If the benefit to the petitioner from the sewer was in having entrance to a permanent system of sewage disposal at tide water, and if this benefit was also received by estates generally in Brighton and adjoining towns, then there is no special or peculiar benefit which can be set off against the petitioner’s damages. 11</p> <p>“ 8. As to the strip of land through which the sewer runs, or any lots which include any portion of said strip, the petitioner cannot legally make a conveyance free and clear of encumbrance, but must convey subject to the easement acquired by the Commonwealth, and this easement is a cloud upon the title to any such lots.”</p> <p>The judge instructed the jury, among other things, as follows:</p> <p>“ You ought to say that the Commonwealth will always act reasonably about it [the sewer], and that in making repairs or doing anything upon it they can do whatever is reasonable and proper in doing it, and that they will do nothing to molest or trouble the petitioners, except what is proper and reasonable, and that is the view you ought to take of the condition of the two parties. If there should be at any time a break in the sewer, they would have a right to go there and repair it; if necessary to stop people’s going across the place where the repairs were in progress, to fence it up temporarily for that purpose, or to do anything which you would appreciate would be reasonable and proper in making those repairs. You ought also, in considering how the interruption will be liable to be, to consider what the sewer is and how it is constructed; its permanence or its lack of permanence; the material of which it is constructed, and the manner in which it is constructed. That all bears upon the question of liability to interruption or otherwise. . . .</p> <p>“ The respondent takes the ground that there was a peculiar and special benefit to the petitioner, not shared in by the general community, and in order to give you any aid on that subject I ought to state that so far as the community there have had the benefit of the sewer which they needed, so far as they have all had that benefit generally shared in by that community, no benefits by way of set-off can be set up or allowed, and it is only the peculiar and special benefits which the petitioner has received that can be considered. . . .</p> <p>“ The Commonwealth claims, this being a piece of land of forty-five acres, that that sewer has been so placed in it, and is so run through it, that it has given it a peculiar and special benefit, and that it is worth a great deal more to the petitioner than if it had been put to one side or run through one corner, or run off from the land, and therefore in that manner it has made the land more valuable, and is a peculiar and special benefit. On the other hand, the petitioner says that is all wrong, that it is not so at all, that it would have been a great deal better if it had gone outside of the entire land, and would not have damaged them half so much. Now, all I have to say is, if you find that the Commonwealth’s contention is the true one, — that must be first settled, — and that by going through this land they have conferred a peculiar and special benefit upon the land, and therefore upon the petitioner, then you may consider it as a peculiar and special benefit; but first you must determine how you find on that question. If you take the petitioner’s view of it, then there is no special and peculiar benefit. If you take the Commonwealth’s view of it, then you may find a special and peculiar benefit.</p> <p>“ There is one other ground upon which the Commonwealth claims there should be a set-off by way of a benefit. It claims that this corporation had erected large and valuable works there for the purpose of slaughtering and melting, and that they needed great facilities for sewerage, and that there was every reason to believe that in the near future that would be cut off from them, they could not have them, they would have to stop their work, and they could not go on, and it claims that putting through this sewer there upon their land which it has appropriated for this work under this street, which they were actually using, gave to that business which they were conducting a peculiar and special benefit, and it holds that that is entitled to be considered a benefit. The petitioner says, oil the other hand, that is all a fallacy; that there is nothing in it; that they had all the accommodations they wanted before, and as to this talk about the Legislature complaining and people complaining about a nuisance, they had plenty of conveniences for sewerage purposes by going through different sewers into the Charles River, and they had a right to anticipate that, whenever that would be stopped, the city of Boston would furnish them other sewerage. The respondent says, ‘You required this; you could not carry on your business until you had this accommodation with sewers, and at just the right time the Commonwealth came on and put in a sewer, not only to accommodate you to-day, but to accommodate you for all time with this business, and to get rid of the nuisance which you were creating.’ Now, if you take the petitioner’s view, and find that it has the correct view of it, then there are no special and peculiar benefits to the petitioner. If, on the other hand, you take the Commonwealth’s view, and find that by the manner of constructing this sewer through the petitioner’s ground, that was a special and peculiar benefit to their business where it was constructed, in the manner and way it was constructed, which helped them to get rid of sewage, and thereby became a special benefit to them, then you may consider it as within that class.”</p> <p>The following questions were submitted to the jury:</p> <p>“ 1. Was the location of the sewer through the petitioner’s land a special and peculiar benefit to it by reason of the way and direction in which it ran through its land from one end of its length to the other ?</p> <p>“2. Was the location of the sewer through the petitioner’s land a special and peculiar benefit to it beyond that generally enjoyed by others, by reason of the fact of the peculiar business to which its buildings were adapted?”</p> <p>The jury answered these questions in the affirmative, and returned a verdict for the petitioner in the sum of one dollar; and the petitioner 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>Bill in EQUITY, filed December 9, 1896, by the trustee under the. will of Caroline S. Eckley, to obtain the instructions of the court as to the construction of the will. Hearing before Barker, J., who reserved the case for the determination of the full court, upon the petition and answers. 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>Assignment in Trust for Benefit of Creditors— Construction of Assent— “ Security ” — Executor and Trustee.</p> <p>A. made an assignment of his property in trust for the benefit of his creditors, which provided for their assent thereto. The executors of the will of A.’s father had, as authorized by the will, lent money of the estate to A., and held, as evidence of the loans, two promissory notes, one being the personal note of A. and the other the note of a firm composed of A. and B. and indorsed by A. before delivery ; and the executors assented to the assignment as follows: “ We signify our assent to the terms of said assignment as creditors of said A., expressly reserving all rights and remedies against any and all persons liable on our claim as maker, indorser, guarantor, or otherwise.” Held, that the assent of the executors was to be construed as showing their intention to release A., but to reserve their rights against B. and to any security which they had.</p> <p>A. made an assignment of his property in trust for the benefit of his creditors, which provided that, if any creditor held security which under the insolvency law would be applicable to his claim, he should be entitled to a dividend on only so much as might remain after deducting from it the proceeds received from a sale of the security. By the will of A.’s father, be became entitled on its final distribution to one third of the estate, which was held in trust under the will; and the estate was inventoried at more than $20,000. The will authorized the executor to loan to A. a sum not exceeding an amount named, “ such sum so loaned . . . with interest thereon not paid upon the final distribution of my estate, to be deducted from his share thereof ”; and nominated the executor as trustee also, and authorized the trustee to continue the loans. The executor, who had not been appointed trustee by the Probate Court, lent certain sums to A., with the knowledge and consent of all parties interested in the estate, and took promissory notes of A. therefor. Held, that the lien which the executor, by such loans, acquired on A.’s interest in his father’s estate was “ security ” on the estate of A. within the meaning of the insolvency law ; and that whether the executor acted as such in matters pertaining to the loans, or as trustee, was immaterial.</p>

Tort, or contract. Trial in the Superior Court, without a jury, before LilUy, J., who, at the request of the parties, reported the case for the determination of this court. The facts appear in the opinion. »

Contract, in two counts, to recover the value of a house and land in Adams, alleged to have been sold by the plaintiff to the defendant under an oral agreement. The answer, among other defences, set up the statute of frauds. Writ dated August 30, 1895. Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptions, in substance as follows.

<p>Eminent Domain—“Land not clearly held in its Entirety by any known Person or Persons” — Statute — Compensation for Damages—Constitutional Law.</p> <p>The intention of St. 1895, c. 442, entitled “ An Act to authorize the town of Nantucket to take the island of Muskeget, or certain portions thereof, for public purposes,” was not to empower the selectmen to take any land held in its entirety by a clear title by any known person or persons, but to empower them to take any specific part or all of the land of the island which was not clearly held in its entirety by any known person or persons.</p> <p>The St. of 1895, c. 442, entitled “ An Act to authorize the town of Nantucket to take the island of Muskeget, or certain portions thereof, for public purposes,” is adequate in its provisions for compensation; and it is constitutional.</p>

<p>Landlord and Tenant — Implied Grant of Right to use Elevator.</p> <p>A. became the lessee of a basement room in a building which was entered from the street by doors and steps, and was separated by a brick partition from the engine room, which had an elevator well in the corner next to the sidewalk, and was entered therefrom by a door and steps. In accordance with a provision in the lease, a door was cut through the partition. The lease also provided that A. was to have the use of the elevator for bringing his goods from the chambers of an adjoining estate, which he was expecting to occupy, to the basement. When this lease expired, a new lease was made to A. of the basement room, “ also, with one horse power only,” (which referred to the elevator,) “ rooms numbered 29 and 30 in said building.” A. occupied those rooms, which were in the upper part of the building, for the purpose of manufacturing his goods, which were lowered by the elevator to the engine room, and thence carried across to the basement room. The tenancy of rooms 29 and 30 was terminated under a provision in the lease, and after that the lessor prevented A. from using the elevator. Held, in an action therefor, that there was no implied grant of a right in A. to use the elevator for hoisting goods from the basement room to the sidewalk and lowering them from the sidewalk to the basement room.</p>

<p>Bill of review, filed in the Superior Court on November 23,1895, to review a decree of that court, made on October 31, 1895, in a suit in equity, for error of law apparent on the face of the record. A decree was entered dismissing the bill; and the plaintiff appealed to this court. The facts appear in the opinion.</p>

<p>Bill in equity, filed March 14, 1896, by the administrator with the will annexed of the estate of Eliza M. Ripley, to obtain the instructions of the court as to the construction of the will. Hearing before Barker, J., who reported the case for the consideration of this court, in substance as follows.</p> <p>At the time of her death, on September 6, 1889, Eliza M. Ripley was a widow without children, and of the age of sixty years. Her heirs at law and next of kin were her three brothers, Charles Mayhew, of Edgartown, Massachusetts, William E. Mayhew and Henry H. Mayhew, both of San Francisco, California ; her sister, Mary W. Sprague, of Edgartown ; and the following nephews and niece: Sarah J. Eldridge and John L. Mayhew, both of Cottage City, children of Joseph M. Mayhew, a brother of the testatrix, who died before her will was made; and Frank B. Norton, of San Francisco, California, a son of Sarah Norton, a deceased sister of the testatrix, who had died before the testatrix’s will was made. When Mrs. Ripley, the testatrix, made her will, and when she died, her three brothers and the sister above named as living at the time of her death, were her nearest relatives, but she had other heirs at law, as above stated. When the will was made, both the testatrix and her sister, Mary W. Sprague, were so old that the testatrix knew that neither of them could thereafter have children. Mary W. Sprague had a husband alive, with whom she did not usually live, and she had never had a child. The husband of Mrs. Sprague died after the death of the testatrix and before the death of Mrs. Sprague, which occurred on October 12, 1895, when she was sixty-two years of age. She died intestate.</p> <p>After a pecuniary bequest to a church, the will provided as follows: “ I also do give and bequeath to my husband’s nearest relatives $1,000 (one thousand dollars) to be divided equally between them. Should my sister Mary W. Sprague survive me I do give and bequeath to her for her personal benefit during her lifetime all the remainder of my property either in' moneys, real estate, or personal property, and to be disposed of at her discretion, at her decease to go to my nearest of kin.”</p> <p>Mrs. Ripley left several pieces of land, comprising a dwelling or homestead, worth about $2,000, and certain wharf property; also the furniture of the homestead, worth about $500. After the proof of her will, Mrs. Sprague entered into possession of the homestead, received the furniture from the administrator, and had possession of the wharf property. She used the homestead and furniture until her death, made no disposition of either in her lifetime, and died intestate. More than five years before her death, she sold the wharf property by a warranty deed for the sum of $3,000, which she deposited in the New Bedford Institution for Savings, on May 6, 1890, in three deposits of $1,000 each, — one in her own name, one in the name of Mary W. Sprague in trust for Charles Mayhew, and one in the name of Mary W. Sprague in trust for Nancy B. Mayhew. On April 10, 1895, the first mentioned deposit amounted with accrued interest to $1,227.91, and on that day Mrs. Sprague drew on the deposit on that account the sum of $500, leaving $727.91, upon which interest had since accrued. She drew nothing on account of either of the deposits except the $500. Beyond this, nothing was shown to indicate the purpose of putting one deposit in her own name as trustee for Charles Mayhew, and one in her own name as trustee for Nancy B. Mayhew, and the parties agreed that the only act done by Mrs. Sprague indicating an intention to give the deposits to Charles and Nancy B. was the form of the deposit indicated by the' book.</p> <p>After the death of Mrs. Sprague, the homestead and the furniture came back to the possession of the plaintiff as administrator with the will annexed. After the deatli of Mrs. Ripley and before the death of Mrs. Sprague, Henry H. Mayhew, their brother, died on November 28, 1891, intestate, leaving a widow, Georgie E. Mayhew, and children, Henry C. Mayhew, Joseph R. Mayhew, William W. Mayhew, and Lizzie Mayhew, all minors, and wards of Littleton C. Wimpenny, who was the special administrator of the estate of Henry H. Mayhew.</p>

<p>Personal Injuries—Railroad — Negligence—Law and Fact — Exceptions — Employers’ Liability Act — “ Charge or Control” of Train — Evidence — Trial — Verdict.</p> <p>It cannot be said, as matter of law, in an action against a railroad corporation for personal injuries occasioned to a fireman on a locomotive engine by a collision between the engine and a snowplough, that he was negligent in not seeing a signal, if the evidence is that, at the time of the collision, the air was filled with driving snow, so that it was impossible at times to see anything.</p> <p>Under an exception to the instructions given at a trial, “ in so far as they conflict with the instructions prayed for,” an objection to a particular portion of the charge, to which the attention of the judge was not called, is not open.</p> <p>A railroad had two main tracks, one called the north track, which was regularly used for trains going west, and the other the south track. On the occasion of a severe snowstorm, the north track was blocked with snow between B. and W., and the trains going each way were using the south track between those stations. C. had charge of the single tracking between such stations, and had given an order, which was obeyed, to hold all east-bound trains at W., west of a crossover switch leading from the south track to the north track, several hundred feet west of W. He then gave an order in writing to the engineer of a westbound train which allowed him to go only to W. The cross-over switch was not in position to allow a train to pass from the south track to the north track, and the train proceeded without stopping and collided with a snowplough standing on the south track, and the fireman on the engine was injured. There was evidence that the air was filled with driving snow so that at times a signal could not be seen. Held., in an action against the railroad corporation for the injury, that, although there was not a literal compliance with the rules of the corporation, it could not be said that there was any negligence on C.’s part which contributed to the accident, nor anything to show that he was bound to give minute directions to the person in charge of the switch at W. as to the setting of the switch. Held, also, that the jury might have found that the engineer of the train was negligent, in continuing to run upon the south track without seeing whether or not a proper signal was out, showing that track to be safe.</p> <p>A person on a railroad having control of a switch, or of a signal, is not in “ charge or control ” of a train, within the meaning pf the employers’ liability act, St. 18.87, c. 270, § 1, cl. 3.</p> <p>In an action against a railroad corporation for personal injuries occasioned to a fireman by reason of the engine on which he was employed colliding with a snowplough standing on the track, one count in the declaration charged negligence of some person in the defendant’s service who had the charge or control of a switch upon its railroad, specifying the negligence as not notifying the plaintiff, or the person who had the charge or control of the train, that the switch was not properly set to cross from one track to another, called the north and south tracks. The evidence showed that C., who had charge of the switch house, after a preceding train had passed from the south track to the north track, changed the switch so that a train going in the same direction would not cross over to the north track, but would continue on the south track, and there was also evidence that this was negligence on his part; but it appeared that the act of changing the switch showed a signal that a train could not cross over. Held, that the defendant was entitled to a ruling that the plaintiff could not recover on that count.</p> <p>A station agent on a railroad, whose duty it is to transmit to the men in charge of the trains as they arrive at the station on a certain occasion the orders of a person in charge of the single tracking at this point, is not in “ charge or control” of a train, within the meaning of the St. of 1887, c. 270, § 1, cl. 3, if there is nothing to show that he gave any orders or assumed any control.</p> <p>In an action against a railroad corporation for personal injuries occasioned to a fireman in its employ by a collision, a general exception to the admission in evidence of the rules of the corporation will not be sustained, but if any particular rule was inapplicable, the attention of the judge should have been called to it.</p> <p>If the verdict in an action the declaration in which contains several counts, is a general one, and the defendant was entitled to have some of his requests for instructions granted, which were refused, a new trial will be ordered.</p>

<p>Mortgage — Wrongful Execution of Power of Sale — Action — Pleading — Damages.</p> <p>An action for the wrongful execution of a power of sale in a mortgage of land is transitory.</p> <p>The allegation in a declaration in an action for the wrongful execution of a power of sale in a mortgage of land, that the person to whom the defendant conveyed the premises was a purchaser in good faith, if material, is material only on the question of damages.</p> <p>A mortgagee of land, when there has been no default or breach of the conditions of the mortgage, cannot sell the land under the usual power of sale contained in a mortgage, so as to pass a good title even to a bona fide purchaser for value, or to any subsequent purchaser from him.</p> <p>An action may be maintained by a mortgagor of land against the mortgagee for the wrongful execution of a power of sale in the mortgage, whether a subsequent purchaser from the purchaser at the sale took a good absolute title or not; and the plaintiff, if he so elects, may recover full damages of the defendant, whether he can or cannot redeem the premises from such purchaser. Allen, Holmes, & Knowlton, JJ., dissenting.</p>

<p>Statute — Written Consent of Husband to Wife’s Will — Ante-nuptial Agreement.</p> <p>There is no provision of statute which requires the consent of a husband to his wife’s will to be written thereon, and such consent may be shown by an ante-nuptial agreement, executed by him, although it is inartificially drawn and its meaning is not free from doubt; and it is immaterial that the agreement contained no schedule of property, and was not recorded.</p>

<p>Bill in equity, by the administrator with the will annexed of the estate of Benjamin S. Botch, to obtain the instructions of the court as to the construction of the will. Hearing before Morton, J., who reserved the case upon the bill, answers, and an agreed statement of facts, for the consideration of the full court.</p> <p>The facts appear in the opinion.</p>

<p>Tort, against the owners of a vessel, for personal injuries occasioned to the plaintiff by the breaking of a triangle on which he was sitting and scraping a mast. After the former decision, reported 161 Mass. 469, the case was tried in the Superior ■ Court, before Hammond, J., who 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.</p> <p>The facts appear in the opinion.</p>

<p>Bill in equity, by the trustee under the will of Martin Brimmer, Senior, to obtain the instructions of the court as to the construction of the will, the material portions of which are as follows:</p> <p>“ I give to my son Martin the income and produce of one full moiety of the estate real, personal, and mixed, which shall belong to me at the time of my decease, or in or to which I shall die possessed of any title, interest, or claim, and direct that so much of such income and produce as shall be required or necessary to afford my said son suitable support and maintenance and to furnish him with a liberal education shall, from time to time during his minority, be expended for his use, and the excess of such income and produce beyond the amount of money expended for his use, as aforesaid, shall annually, or as often as convenient, be invested with the principal fund and accumulate for the benefit of my said son. From and after the time when my said son shall attain full age and until he shall arrive at the age of twenty-three years he shall receive the whole income and produce of said moiety of my estate with its accumulation. And upon my said son’s attaining the age of twenty-three years he shall be put in possession of said moiety of my estate, with the accumulation thereof, and shall hold the same to him and his heirs forever. Provided, however, that in case my said son shall die having no issue him surviving, or such issue shall decease during minority, then, and in either of such cases, my will is that my sister Eliza Oliver shall have and take the said moiety of my estate and its accumulations hereinbefore given to my said son; and if the said Eliza O. shall not then be living, I give said estate, with its accumulations, to the person or persons who shall be my heir or heirs at law.</p> <p>“ And the other moiety of my estate, real, personal, and mixed, I give and devise unto my said sister, to hold to her during her natural life, and at the decease of said Eliza, or in case she shall not survive me, I give and devise her share of the moiety of my estate unto my said son Martin, if he shall then be living, or to his issue if he shall have deceased. Provided, however, that this moiety of my estate shall, in case of the decease of my said son without issue, or such issue shall not attain majority, then at my said son’s death, or at the decease of his issue during minority, as the case may be, go to my heir or heirs at law. And also in case my said son shall not have attained the age of twenty-three years at the time of the decease of the said Eliza O., the income of this second moiety of my estate, or any part thereof, shall be disposed of in the same manner as I have directed in respect of the income from the first moiety of my estate and its accumulations.”</p> <p>The prayer of the bill was: 1. What person or persons are entitled to the principal of the trust estate, and in what proportions? 2. Whether the plaintiff has the power to sell the trust property, and to pay over the net proceeds thereof in cash to the person or persons entitled thereto, or whether he is to divide the trust property, so far as it is possible to do so, among the person or persons entitled thereto, selling only sufficient thereof to raise the cash to make the division just and equal. The case was reserved by Meld, C. J., at the request of the parties, upon the pleadings and an agreed statement of facts, for the consideration of the full court. The facts appear in the opinion.</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>Bill iít equity, by the trustees under the will of John W. Trull, to obtain the instructions of the court as to its construction. After giving his daughter, Mrs. Elizabeth Eldredge, his household furniture, etc. absolutely, and the improvement during her life of his dwelling-house in Beacon Street, Boston, and making a pecuniary provision for his stepson, John T. Heard, and John Theodore Heard, the son of his stepson, he gave the residue, including the reversion of the dwelling-house, to trustees, to pay the net income to Mrs. Elizabeth Eldredge for life, and “ At and after the decease of my said daughter, I give the said trust premises to her issue, equally to be divided between and among them, if more than one, in fee simple, the children of any deceased child of my said daughter to take the parent’s share by representation. If my said daughter shall leave no issue surviving her, the trust premises shall, at her decease, be divided into two equal parts or portions, one of which parts shall go to and be held by the said John T. Heard and his heirs in fee forever, and the other part shall be divided among my heirs at law, as though I died intestate. I give my said trustees and their successors, and any persons acting as trustees under this will, full power and authority to sell any and all real estate, of which the trust premises shall be at any time composed, and to-make any and all deeds, and do any and all acts necessary or proper for carrying into full effect any and all such sales; and the purchasers from such trustees shall not be bound to see to the application of the purchase money. And I give my said trustees, and their successors, and any persons acting as trustees under this will, full power and authority to invest, reinvest, and change any and all property of which the trust premises shall be at any time composed.”</p> <p>The prayer was for instructions upon the following points:</p> <p>“ 1. What person or persons are entitled to the principal of the trust estate now in your petitioners’ hands, and in what proportions ?</p> <p>“ 2. Whether your petitioners have the power to sell the said trust property both real and personal, and to pay over the net proceeds thereof in cash to the persons entitled thereto, or “ 3. Whether they are to divide the personal, so far as it is possible so to do, among the persons entitled thereto, selling only sufficient thereof to raise the cash to make the division just and equal, or</p> <p>“ 4. Whether the real estate passes by the will to the persons entitled thereto, and in the proportion which the court in this case shall adjudge, or</p> <p>“ 5. Whether they are to convey the said real estate to said persons as tenants in common in said proportion, or</p> <p>“ 6. Whether they are to make partition thereof and then convey the several parcels or portions of parcels to such persons.” The case was reserved by Knowlton, J., at the request of the parties upon the bill and answers for the consideration of the full court. The facts appear in the opinion.</p> <p>The case was argued at the bar in January, 1897, and after-wards was submitted on briefs to all the justices.</p>

Bill in equity, filed in the Superior Court, October 26,1896, to restrain the defendant Putnam from foreclosing a mortgage held by him as trustee for the inhabitants of Deerfield. The inhabitants of Deerfield made no answer, and as to them the bill was taken as confessed.

<p>Quo Warranto — Private Corporation—Usurpation of Franchise — Injury • to Private Right — Remedy.</p> <p>A corporation was chartered under Pub. Sts. c. 115, for the purposes of “ promoting pleasant relations among its members; discussing, arbitrating, and settling all matters pertaining to the prosperity and promotion of the jobbing plumbers’ supply business; and establishing and maintaining a place for social meetings.” It consisted of about twenty firms engaged in selling plumbers’ supplies, and, claiming to act under its franchises, took proceedings against persons whom its members might represent to it as owing them overdue bills for plumbers’ supplies, sending notices to such persons, and also notices to its members other than the creditor, as a method of compelling the alleged debtors to pay what its members demanded, by means of threatening to expose to certain dealers their alleged delinquencies, by actually informing such dealers that those persons owed overdue accounts, and by preventing them from obtaining credit from a number of dealers in goods needed in their business; and also required such persons, where the correctness of the claim was disputed, to submit the controversy to arbitration. Held, that a plumber against whom the corporation had so proceeded was entitled to file an information in the nature of a quo warranto against the corporation. Allen, Knowlton, & Lathrop, JJ., dissenting.</p>

<p>Broker’s Commission — A ction — Instructions.</p> <p>If a broker, who is employed by the owner to sell an estate, brings it to the attention of the person who finally buys it, and obtains from him an offer which is rejected by the owner, and the broker thereupon suspends his efforts, and after-wards another broker, in ignorance of the former’s employment, procures from the same person another and substantially different offer, which is accepted by the owner, in an action by the first broker to recover a commission of the owner, exceptions taken by the latter to instructions which did not point out sufficiently the difference between the two offers, and may have misled the jury to find for the plaintiff, will be sustained.</p>

<p>Betterment — Validity of Assessment — Agreement between Landowner and City as to Damages and Betterments — Amendment of Order— Certiorari.</p> <p>Contributions made by landowners under an agreement with the city by authority of St. 1884, c. 226, by which they release the damages caused by taking their lands for the construction of a way, and pay a part of the cost of such construction and a part of the damages recovered by other landowners, and the city' assumes their betterment assessments, are not voluntary gifts to be deducted from the cost of the way.</p> <p>An agreement made under St. 1884, c. 226, by which landowners agree to release the damages caused by taking their lands for the construction of a way and to contribute and pay to the city one third of the cost of such construction, “ being credited, how'ever, with the betterments assessed on land of those abutters who do not sign this proposal,” and further to save the city harmless from damages which any owner who does not sign the offer may recover, “ upon being subrogated to and credited with the betterments assessed or to be assessed by said city on such owners respectively,” and the city agrees to assume the betterment assessments, does not invalidate such assessment.</p> <p>An order of a city council for the assessment of a betterment, which, by a clerical error, misstates the amount of the total expense on which the assessment is based, may be amended by substituting the amount of the actual expense, and it is not necessary to give any notice of the amendment, or to reassess the betterment.</p> <p>Persons who lie by and permit great expenditures to be made, the benefits of which they will enjoy, are not to be allowed to avoid responsibility for the payment of any. share of such expenditures by afterwards having the proceedings under which they were incurred quashed on certiorari.</p>

<p>Unauthorized Use of Name in Partnership — Equity — Profits — Damages.</p> <p>A., who, with three others, composed the firm of A., B., and Company, executed with them an instrument, by which he agreed to sell his interest to them, and they agreed “ to make a copartnership contract, to commence on ” a day named, “for the term of five years, under the firm name of” A., B., and Company, and he was to receive five promissory notes for a certain sum each, running one, two, three, four, and five years from the beginning of the new partnership. On the day named for the formation of the new firm, A. executed another instrument, by which he sold to his former partners, “ at this date constituting the firm of ” A., B., and Company, “ all my right, title, and interest to and in any and all things and property of whatsoever name or nature, in which I have an undivided interest witli said ” former partners, “as a member of the late firm of” A., B., and Company, “ which copartnership expired by limitation on the ” preceding day. Held, that a bill in equity, under Pub. Sts. c. 76, §§ 6, 7, to enjoin the use of A.’s name in the partnership business after the expiration of the five years, could be maintained; and that he was not entitled to recover profits, but was not limited necessarily to nominal damages,.</p>

<p>Tort, in two counts, under Pub. Sts. c. 112, §§ 212, 213, by the administrator of the estate of Ralph Martin, for causing his death. At the trial in .the Superior Court, before Bishop, J., the jury returned a verdict for the plaintiff on the first count, and for the defendant on the second count; and the defendant alleged exceptions. The facts appear in the opinion,</p>

<p>Two petition's to enforce mechanic’s liens, under Pub. Sts. c. 191. In the Superior Court, the cases were referred to an auditor to “ hear the parties, examine their vouchers and evidence, and state the accounts, and make report thereof to the court, the finding of the auditor to be final on questions of fact.” The auditor found and reported the following facts in the first case.</p> <p>The petitioner had been employed by one D. J. Crowley for about two years before be did the work mentioned in this case. Crowley was engaged in stonework, so called, and carried on a yard at North Adams for doing such work for monumental and building purposes, The petitioner commenced work as an apprentice to learn the stonecutter’s trade and received in addition to instruction at first $1 a day. Afterwards, as he became more skilful, his wages in money were advanced to $1.50 a day, then to $2 a day, and finally to $2.50 a day, the price that he was to receive from Crowley when he did the work for which he seeks pay in this case. He was employed to do any work that should be given him by Crowley, in the yard or away from the yard, in the erection of buildings or placing of monuments. His employment contemplated no particular kind of work, except that it was to be work in Crowley’s business and line, namely, that of stonecutting. He testified that he believed nearly all of the work for which he charged in this case, and which was done in Crowley’s yard, was done on materials intended to be used and actually used in the erection of the respondents’ building, and that he knew the materials were to be so used when he did the work upon them. This work consisted in dressing the rough stone into forms expressly designed and made according to plans for use on said building. The petitioner admitted that he had done some work during the time in other places and on other materials than those used in the respondents’ building, but claimed that the amount of such other work was very little.</p> <p>"The petitioner also testified that he had done three days’ work on the respondents’ building, these three days being a part of the twenty-five days charged in his petition. He had been paid $5.66 towards this work, and it did not appear that he had credited this amount except generally on his account. No evidence was offered as to the actual value of the plaintiff’s services.</p> <p>The respondents had contracted with one Fleming to furnish the materials and build a block on their lot in Adams, described in the petition, and Fleming sublet to Crowley the granite-work on the building for a round price for materials and labor, Crowley agreeing to “ cut all granite in buildings and set same in place above cellar wall.” Crowley had been fully paid by Fleming for all work and materials furnished by Crowley under his contract, Fleming having, as the last payment, accepted an order in writing given by Crowley, which order covered the amount due Crowley for all work done by the petitioner, as well as for other work of Crowley’s hands on the job.</p> <p>It was agreed that the petitioner had filed a statement in the registry of deeds within thirty days after he ceased to labor, and had done all things necessary to establish a lien for the wages due him, if he was entitled to such lien; and that Crowley was insolvent and had not paid the petitioner for the services charged in his petition.</p> <p>The facts in the second case did not differ materially from those in the first case.</p> <p>The auditor stated the account in each case, and referred to the court the question of the right of the petitioner to maintain a lien on the building and lot described in his petition.</p> <p>Maynard, J. found for the petitioner in each case, and ordered judgment accordingly; and the respondents appealed to this court.</p>

<p>Bill in equity, filed in the Superior Court, May 21, 1897, to restrain an alleged trespass upon certain land in Great Barrington, which the plaintiff averred that it was entitled to úse and occupy for railroad purposes. The answer alleged that the defendant was the owner in fee of the land, upon which he was excavating the soil and laying the foundation for the erection of a building thereon. A temporary injunction was granted, and the case was referred to a master, who found and reported the following facts.</p> <p>The land occupied and claimed by the defendant consists of a parcel about seventy feet long north and south, and thirty-two feet wide east and west, situated on the easterly side of the plaintiff’s railroad, and immediately south of land used by the plaintiff for depot purposes in Great Barrington. The defendant claims title by virtue of certain deeds of conveyance from Silas Sprague, and intermediate conveyances to himself.</p> <p>The plaintiff claims that a portion of the premises along the westerly side of the same, measuring six feet wide at the south end and eight feet wide at the north end, is covered by and included in the description of land taken by the Berkshire Railroad Company (the plaintiff’s lessor) for depot purposes.</p> <p>On September 3, 1841, the Berkshire Railroad Company, a corporation duly organized by law under a charter granted in 1837, filed with the county commissioners of Berkshire a petition for the assessment of damages for the taking of certain lands therein described for railroad purposes in Great Barrington; and on September 29, 1841, the corporation filed with the commissioners an amendment to its petition, describing therein certain other lands which it had taken for depot purposes adjoining land described in its petition. The commissioners thereafter duly assessed damages for the taking of all of the land described in both the petition and the amendment thereto.</p> <p>These descriptions so filed state the distances and courses of the centre line of the roadway and the width of land taken extending each way from the centre line, but they do not define or refer to boundaries, and no map or plan is referred to therein. “ I find that the land described in the above mentioned amended description covers and includes a portion of the premises claimed and occupied by the defendant, which portion extends over and along its westerly side, and is three and three tenths feet wide at the south end and five feet wide at the north end. I find that the true centre line of said roadway as described by the petition filed by said railroad company is located to the west of the premises claimed by the defendant, and is distant from the western line of the same twenty-two and forty-seven one-hundredths feet at its south end and twenty-two and ninety one-hundredths feet at its north end.” On May 19,1843, one Silas Sprague gave a warranty deed, describing and purporting to convey the premises now claimed and occupied, by the defendant to Gilbert L. Granger and others, from whom, by mesne conveyances, the premises came to the defendant, who was in possession of the same at the time of the bringing of this suit. The defendant and his predecessors in title had continuously occupied and used the whole of the premises openly and adversely, claiming title thereto, from the date of the conveyance of Sprague to Granger and others, up to the commencement of this suit. During most of that period the premises were entirely covered by buildings erected thereon, standing upon stone foundations, the outside face of which came even with the boundary lines of the land. On March 21,1844, Sprague gave the Berkshire Railroad Company a warranty deed, describing and purporting to convey to the corporation in fee all the land included in the description of its location across the premises of Sprague (a portion of which is that part of the tract claimed by the defendant covered by the location as above stated), and also other land adjoining thereto, now used by the plaintiff for depot purposes. About October 11,1896, the buildings standing upon the land claimed by the defendant were destroyed by fire, and he was proceeding and intending to rebuild upon the same foundation at the time he was enjoined therefrom by the proceedings in this case. JSTo evidence was introduced tending to show that either the Berkshire Railroad Company or its lessee, the plaintiff, ever claimed title to or an easement over any portion of the premises occupied by the defendant and his grantors until subsequently to the burning of the buildings thereon, as above stated. It was agreed by the parties that the plaintiff is the lessee of the Berkshire Railroad Company, and entitled to all lands, rights, easements, and franchises belonging to the lessor, or to which the lessor was legally entitled at the time of the execution of the lease.</p> <p>It was agreed that the records of the county commissioners of Berkshire show that the Berkshire Railroad Company filed with the county commissioners on December 1,1840, the time named in their charter, a survey and location of their railroad, with maps of the same; that the survey commences at a monument standing in the line separating the States of Massachusetts and Connecticut, this being the southern terminus of this railroad, and then runs, giving courses and distances, to a point in the town of West Stockbridge, being the northern terminus of the railroad; that the survey mentions no boundaries of the route, but that three maps were filed accompanying the survey; that no such maps are now on file, and there is no evidence whether they have been on file since December 1, 1840, except what appears in the records, and there is evidence that they have not been on file during at least forty years last past; that on May 18, 1841, and June 7, 1841, petitions were filed amending the location as filed December 1, 1840; and that when, on September 3, 1841, the railroad company filed a petition for the assessment of damages, the lands petitioned for were described with reference only to the centre line of the railroad and the boundary lines of adjoining landowners, and the centre line was described in courses and distances, but without reference to boundaries or to any map or plan, except as above stated.</p> <p>A copy of the record in the registry of deeds of the following instrument, dated April 3, 1849, and signed, sealed, and acknowledged by G. L. Granger, Henry L. Hill, and Rodney Hill, was admitted in evidence, against the plaintiff’s objection: “ Whereas our own convenience indues [sfc] the use and occupancy of premises owned by the Berkshire Railroad Company, particularly those premises situated westerly of the stores and buildings of ours erected on Railroad Street in Great Barrington ; How therefore, Be it known that we, the subscribers, do for ourselves, our heirs, and others claiming from or under us or either of us, hereby disclaim all right, title, or demand to premises or land of said company which we now occupy of may hereafter occupy as aforesaid, by the permission or non-objection of the officers or stockholders of said railroad, and now admit that the stone walls or underpinning on which our buildings stand, is the westerly line of our premises as purchased of Silas Sprague.”</p> <p>Hearing before Maynard, J., who admitted in evidence the paper above set forth, against the plaintiff’s exception, found, upon the facts stated in the master’s report, that whatever easement, if any, the plaintiff or its lessor gained, by its taking as shown by the record of location, if not merged in its deed, was abandoned by the plaintiff; that the defendant had gained title to the land in dispute by prescription ; ordered the injunction dissolved and the bill dismissed; and reported the case for the determination of this court.</p> <p>If the findings and the ruling admitting in evidence the paper excepted to were right, the judgment was to be affirmed ,• otherwise, such entry was to be made as law and justice require.</p>

Tort, for personal injuries occasioned to the plaintiff while in the employ of the defendant as a brabeman. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.

<p>Personal Injuries—Defective Highway—Due Care — Absence of Railing— Law and Fact.</p> <p>In an action against a town for personal injuries occasioned to the plaintiff hy an alleged defect in a highway while driving thereon, he testified that, hearing a team coming behind him, he turned to the right side of the travelled part of the way to let it pass; that his horse, which was a gentle one, shied at something, sprang back, and jumped off the road into a ditch at the side; and that, seeing that his wagon was likely to upset, he turned the horse sjiort across the ditch so as to go off straight and not sideways. Held, that it was for the jury to say whether, if there was any loss of control of the horse, it was or was not momentary, and whether the plaintiff was in the exercise of due care.</p> <p>If the wrought part of a highway is seventeen feet wide from shoulder to shoulder, having a ditch three feet deep descending from the roadbed at an angle of about forty-five degrees, and the space between the travelled part of the way and the shoulder where the slope of the ditch begins is not more than six or eight inches wide, the way is not defective by reason of its narrowness; but, in an action against the town for personal injuries occasioned to a traveller on the way, it cannot be said, as matter of law, that there was not evidence for tho jury that the way was defective for want of a sufficient railing.</p>

<p>Will — Life Estate or Fee—Partition of Real Estate — Bona.Fide Purchaser without Notice.</p> <p>E., who was tenant in common of land with his wife R., and who died in 1880, gave her by will his entire estate “ to hold to her during her lifetime, with full power to use and dispose of the same as she shall deem right and proper. And after the decease of the said R., I give, devise, and bequeath all the remainder of my said estate to my son, W., to hold to him, his heirs and assigns forever.” W., who died in 1893 intestate, left a widow, M., and no issue living, and no real estate except that in controversy, the value of which did not exceed $5,000. R., who died in 1896, gave by will, after a small legacy, the residue of her estate “ to my brother H. . . . and his heirs forever.” M, having brought a petition for partition against H., who died while the proceedings were pending, T. suggested H.'s death, claiming that H. had conveyed to him the premises, and he was admitted a party defendant. It appeared that T. acted for another, that he had notice of the true state of the title, and that H. and the person for whom T. acted knew all the facts. Held, that the power of disposal in R. did not extend to a disposal by will, that a certain deed given by her in 1890 was not an exercise of the power as it was never delivered, that the grantee of H. was his agent and not a bona fide purchaser without notice, and that the judgment for partition by the Superior Court should be affirmed.</p>

<p>Action — Payment of Check by Mistake—Tender.</p> <p>Where a bank pays money by mistake to the payee of a check which the bank has been instructed by the drawer not to pay, and there is no suggestion that the check was given to the payee as a gratuity or merely for his accommodation, the bank must first tender the check to the payee before bringing an action to recover the money so paid.</p>

Tort, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the falling of a stone arch. The declaration was under the employers’ liability act, St. 1887, c. 270. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts material to the points decided appear in the opinion.

Contract, upon an account annexed, against the executor of the will of Henry B. Graves, to recover $146. The defendant set up the defence that all the items except the last two were barred by the statute of limitations. The first item in the account annexed was dated January 17, 1862, and the last was dated January 12,1894. Writ dated October 27, 1896. Trial in the Superior Court before Dewey, J., who allowed a bill of exceptions in substance as follows.

Contract, upon a certificate of membership, wherein the defendant promised to pay the plaintiff the sum of twenty-five dollars per week for a period not exceeding fifty-two consecutive weeks, as indemnity for loss of time resulting from bodily injury caused through external violent and accidental means, within the meaning of the conditions of the certificate.

Contract, or tort, under Pub. Sts. c. 157, § 96, by the assignee of the estate of George M. Underwood, in insolvency, to recover $400, alleged to have been received as an unlawful preference by the defendants from the debtor within six months before the filing of the petition in insolvency. Trial in the Superior Court, without a jury, before Bishop, J., who allowed a bill of exceptions, in substance as follows.

Two actions OE CONTRACT, by deputy sheriffs, to recover for services and disbursements in connection with certain seizures of liquor. At the trial in the Superior Court, without a jury, before Wardwell, J., the defendant requested a ruling that the actions could not be maintained because his promise was without consideration, and because the contract was illegal and void.

<p>Contract upon a promissory note, of which the following is a copy:</p> <p>“ $250. Enfield, April 14,1890. Four months after date I promise to pay to the order of Wm. B. Downing two hundred and fifty dollars at the Agawam National Bank, Springfield. For value received. E. B. Downing.”</p> <p>Indorsed, Wm. B. Downing.</p> <p>Trial in the Superior Court, without a jury, before War dwell, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The cashier of the plaintiff bank testified that the note was discounted as an original transaction on April 14, 1890, for William B. Downing, who brought it there; that it had been held in the bank continuously ever since ; that not being paid at maturity, William B. Downing was notified; that it had lain in the past-due files until September 27, 1890, when William B. Downing gave his note for $450, which included the amount of the note in question, and another note of $200 given by William H. Downing, which was also in the same condition, overdue, and had. been discounted for William B. Downing; that the bank retained said overdue note of William H. Downing; that the new note of $450 was renewed from time to time, and occasionally reduced by William B. Downing until October 2,1895, when it was renewed for four months for the sum of $175, which has never been paid, and was the amount now due the bank; that at the time of the last renewal, on October 2, 1895, the bank delivered up to William B. Downing the aforesaid old note of William H. Downing; that no indorsements of partial payments were made on the original note of Edward B. Downing, now in suit; that that note was held as collateral for the debt of William B. Downing ; that he did not consider that he had authority to make an indorsement on this collateral note; and, in answer to a question by the judge, stated that the note in suit was considered as collateral for the $175 due from William B. Downing.</p> <p>The cashier mailed to the defendant’s attorneys a letter, dated March 12, 1896, which stated that “ the note of E. B. Downing, $250, was given April 14th, 1890, indorsed by W. B. Downing and discounted by us at that time. It was taken up by W. B. D. with this note and the E. B. D. note left as collateral in connection with other matters, and W. B. D. has reduced his note to $175, which we now hold. W. B. D. told us when we renewed the last time that the E. B. D. note was good, and that his note would probably be paid when due. You will see that the E. B. D. note will soon be outlawed, so we must have something done.”</p> <p>The cashier testified that he meant that the $450 note included some other debt than that which Edward B. Downing’s note covered, namely, the debt of $200 on the William H. Downing note, and that they did not carry the $250 note in suit in their account of receivables, but held it only as collateral, and at each renewal between April 14, 1890, and the date of the last renewal, the new note was entered in the account of bills receivable as the property of the bank ; that the balance claimed of $175 was all that was left of the amount of the two notes originally discounted for W. B. Downing: one of $250, the E. B. Downing note in suit, and the other of $200, the W. H. Downing note ; that by the expression in the letter, “ It was taken up by W. B. Downing,” he meant that it was taken out of the past-due files; that W. B. Downing never had it in his hands; and that he meant that the note was transferred from the regular discount list to the collateral.</p> <p>It appeared that Edward B. Downing never did any business with the bank, and that the bank never communicated with him about the condition of this note from the time that it was originally taken ; and it was agree’d that Edward B. and William H. were sons of William B. Downing.</p> <p>Edward B. Downing testified that at the time when the note was given he was living in his own home and not with his father; that he was not indebted to his father; that his father came to his house, bringing the note, and said that he had got some money to make out; that he could turn his railroad sleepers and lumber into money within a few months ; that he wished the son would help him by signing the note; -that the defendant looked at the note, knowing that his father was so situated that he could turn the money within the time stated; that his father stated plainly that he would take care of the note at the end of four months; that he never authorized the use of the note as collateral to other notes; and that he did not know until after his father’s death, which occurred soon after the last renewal of October 2, 1895, that the bank made any claim to hold him on the note in suit.</p> <p>In rebuttal, the cashier testified that the bank never had any information that the note in suit was an accommodation note, and that it was discounted as a business note.</p> <p>The defendant asked the judge to rule that, on all the evidence, the findings must be for the defendant.</p> <p>The defendant asked the judge to find, on the evidence, that the note in suit was given for the accommodation of W. B. Downing, and that the defendant was not, as between himself and W. B. Downing, indebted thereon; that the only authority which E. B. Downing gave W. B. Downing was that he might get the note discounted; that W. B. Downing had no authority to use this note as collateral security; that the plaintiff bank, since the time the $450 note was given, had only claimed to hold this note as collateral for other notes of William B. Downing given by him on time with discount paid in advance ; that for more than four years before William B. Downing died, on November 15, 1895, the plaintiff hank had treated this note as William B. Downing’s collateral to notes on time and renewed from time to time ; that the new note of $450, given after the note in suit was due, was intended as payment of the note in suit, and that thereafter the plaintiff bank and William B. Downing treated the note in suit as collateral only; that the plaintiff bank only held the note in suit subject to the equities between the defendant and his father, W. B. Downing, and that E. B. Downing was not at any time indebted thereon.</p> <p>The judge did not rule in accordance with the defendant’s prayer, but found that no new contract or agreement was made by the bank with W. B. Downing concerning the note in suit, and, at the defendant’s request, found that the note was at its inception given for the accommodation of W. B. Downing, but did not make the other findings requested, and found for the plaintiff in the amount of $183.04, being the. whole amount claimed by the plaintiff as due upon the note in suit, the same also being the amount of the note of W. B. Downing, dated October 2, 1895, for which the plaintiff held the note in suit as collateral.</p> <p>The following is a copy of the note of October 2,1895:</p> <p>“$175. Springfield, Mass., October 2, 1895. Four months after date, for value received, I promise to pay to the order of Agawam National Bank one hundred seventy-five dollars. Payable at the Agawam National Bank. Wm. B. Downing.”</p> <p>The defendant alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ by being thrown from the bumper of a street car in the evening of May 3,1896, while he was adjusting the trolley pole to the wire overhead. The declaration contained four counts, one at common law and three under the employers’ liability act, St. 1887, c. 270.

<p>Tort, for obstructing an alleged right of way appurtenant to land in Chester. At the trial in the Superior Court, before jHopkins, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Tort, for injuries occasioned to the plaintiff’s person and property by the alleged negligence of the defendant’s servants in blowing the whistle on a locomotive engine “in an unsafe, improper, and careless manner.” Trial in the Superior Court, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that on May 18,1895, the plaintiff was employed, with his horse and cart, by the town of Westfield on the “ State road,” so called, between Westfield and Mittineague; that his work consisted in filling his cart with dirt at an embankment and dumping it on the highway, which was parallel to and about seventy feet distant from the defendant’s railroad at this point; that the plaintiff’s horse was frightened by whistles blown on a locomotive engine, and started to run, and the plaintiff, in trying to control him, was thrown against a post and received the injuries complained of; and that the horse fell, and died soon after.</p> <p>The plaintiff introduced evidence tending to show that he had taken out his second load and had dumped it; that a gravel train was standing on the defendant’s railroad, and that a whistle was blown four times, giving three sharp blasts and then a long one, two of the witnesses testifying that the whistling lasted about five minutes, and another that it lasted ten or twelve minutes; that the men working on the way, of whom there were seven or eight besides the plaintiff, were seen by the train hands when the whistle was blown ; and that the plaintiff’s horse had worked there for two weeks, and he had not been afraid of the whistling before this occasion.</p> <p>The defendant introduced evidence tending to show that the train in question consisted of an engine and fifty cars loaded with gravel which was dumped at a certain point; that the four whistles were short, sharp blasts lasting only a few seconds, and given, in accordance with a rule established by the corporation, to call in a brakeman who had been left at some distance from the place of unloading with a flag to guard the track from approaching trains ; that the order to blow the whistle was given by the conductor to the engineer, and the train started at once ; and that the men working on the highway had not been seen before the accident to the plaintiff.</p> <p>At the close of the evidence, the defendant requested the judge to give the following rulings : “ 1. Upon the whole evidence, and the pleadings, the plaintiff cannot recover. 2. There is no sufficient evidence that the engineer negligently or heedlessly blew the whistle, and the plaintiff cannot recover. 3. There is no sufficient evidence that the plaintiff was in the exercise of due care, and he cannot recover. 4. It was no part of the duty of the engineer on the train to be on the lookout for the plaintiff or the other men working on the highway. 5. The plaintiff cannot recover other than the value of his horse because of any long continued blowing of the whistle after the horse got away from him.”</p> <p>The judge refused to give these rulings, and, among other things, instructed the jury as follows:</p> <p>“How, what were the rights of the parties at the timé with reference to one another ? They were strangers, as you see, to one another, that is, there was no contractual relation between them. The plaintiff was not in the employ of the defendant, and so owed the defendant no duty as an employee, and the corporation owed the plaintiff no duty as his master. They were precisely in the same condition as if one of you were passing over some highway, driving a horse, for pleasure or upon business in which you might be engaged, and the rights of the plaintiff are to be determined by the same rules of law that would have to be applied in case one of you had an injury in passing over that way through a fright caused his horse by the blowing of a whistle. How, the defendant corporation had a right to run this gravel train upon its road. It had a right to run it according to such rules as it might adopt, provided those rules were reasonable and proper, having reference to the conditions under which it was occupying its road-bed and with regard to the rights of all other persons upon it in any employment or adjacent to it; so it would be entirely competent for the railroad corporation to establish rules which would govern the action of its servants in the way and manner in which the defendant’s witnesses now say their conduct was governed. . . .</p> <p>“ Now, it is obvious that necessarily, in the operation of trains upon railroads, many things will take place calculated to cause fright to horses, and for that matter to people, — disturbance, annoyance to people. Smoke escapes, there is a vibration of passing trains which communicates itself to buildings near by, there is the noise of the bell, and the noise of the whistle, all of which are calculated, perhaps, to cause annoyance and sometimes fright, and the danger, of course, of disturbance and of fright, increases with the proximity of the person to be affected by it, so that where we get a railroad and a highway running parallel and near by, there must be causes of fright and disturbance to persons and animals passing along upon the highway, and for any injury that results from the fright that is caused in that way no recovery can be had against the railroad, because it is only doing that which it is organized and incorporated to do, which public policy authorizes it to do, desires to have done, and therefore an injury which results solely because of fright which is brought about by noises and disturbances caused by passing trains is not in and of itself a cause of action for which recovery can be had against the railroad corporation causing it, but it is only in the event that that which is complained of results from some wrongful, negligent act on the part of the defendant corporation that recovery can be had. . . .</p> <p>“ The plaintiff comes with the burden upon him of proving what he alleges, and the allegation which he makes is that the negligent act consisted of unsafe, improper, and careless whistling. That is the negligent thing that is complained of, so that you see the question of fact is a very simple one. He does not claim that they had not a right to whistle. That is admitted, and he puts his case on the proposition that the act which wrought him the injury was a careless, negligent, and improper one. Did the defendant’s servant, the engine man, carelessly and negligently blow the whistle upon that occasion ? That is a question of fact. Now, I say to you in the outset that if it was a prudent and proper thing to leave the brakeman in the rear to guard that east bound track until the train was removed from it, and if under those circumstances it was a prudent and proper thing to establish a signal to give him notice of the fact, and that the signal which was established, namely, four sharp short whistles, was, in your judgment, a proper signal to give, then the giving of such a signal would not be a negligent blowing of the whistle, and if that was all that was done, and if it frightened the horse, no matter how severe the fright and how distressing it became ultimately to the horse or man or both, then the defendant cannot be said to have performed the negligent act complained of, and this plaintiff would have no right of recovery. It would be an accident. The misfortune would have to lie where it fell upon the unfortunate victim of it; but he puts his case upon the proposition that there was a different blowing of the whistle. He says that he heard three blasts of the locomotive whistle, and they startled his horse, and the duration of them he characterizes as four or five minutes for those three blasts. It is not for me to say that that is absurd. It is for you to consider whether that can be so or not, in the nature of things. Counsel say that, of course, he is mistaken as to the time. That is a suggestion for you to take into consideration ; but he says there were three short blasts of the whistle, as distinguishing the blasts from the blast which followed; then he says the fright was completed by the fourth blast of the whistle, which he says was in duration ten or twelve minutes. The same remark that I made with reference to the first statement as to time, you recall here, and in the nature of things, can it be possible that there should be a ten or twelve minutes’ blast of the whistle at that time ? Well, if you should find that there were three blasts which, in their duration, blasts and intervals, occupied four or five minutes, and that they were followed by a blast which in duration occupied ten or twelve minutes, what would you say about such whistling as that? Was it reasonably necessary to do that in order to warn and call the brakeman who is detached to guard that track ? It is not for me to say that that would be a careless, negligent use of the whistle. It is not for me to say that the plaintiff commits himself to the proposition that it did take as long as that. I only recall your attention to the evidence in which he states the time in that way. Now, what is the story of the defendant, what is the nature of the evidence upon which it bases its claim ? The claim is that the blasts which were given were four in number, and that they were determined by the rules which have been put before you, which establishes that signal for calling in a brakeman. How were they given ? It is said by those who have spoken to it that they occupied, blasts and intervals, about four seconds, a short space of time, so that, according to the claim of the defendant, the signal was short, sharp, clear, and decisive, occupying but a brief space of time. Now, if you should find that it occupied a short space of time, and that it took place under such circumstances, then it is, of course, a question for you whether that was a negligent use of the whistle under the circumstances. . . .</p> <p>“ Now, it is said by the plaintiff in his testimony, and it is argued to you by counsel, that the servants of the defendant saw the plaintiff as he was crossing the road, — were looking at him. It is said on the part of the defendant’s servants that they did not see or observe him. Now, the mere fact that they saw him, if it be a fact, does not necessarily sustain the proposition that they were negligent in the act of whistling, for reasons I have already given. They would have a right to whistle, although they saw a man passing on the highway, but it is a fact that you are to take into consideration whether or not they did so. Now, if the engineer saw this man upon the highway, and then wilfully, maliciously, knowing that the act would cause fright, blew that whistle, and blew it for the purpose of causing fright, this defendant was not liable for the engineer’s act, because it would not be what we know as a negligent act on the part of the defendant’s servants, but a wilful act on his part, contrary to the rules of the corporation, and for the wilful act of the servant under those circumstances the master is not responsible. . . .</p> <p>“ The plaintiff must prove affirmatively the fact alleged of negligence. If he fails of that, he fails of a right of recovery. If he sustains that position, then he must also prove that he himself was in the exercise of due care. Counsel have addressed you upon that question, upon both sides. I can add little to what has been said about it. I will say this, however, that his care must extend not only to his own person, but to his own property, so that if he had a horse that was unfamiliar with the disturbing noises that surrounded him there, and which, when brought in contact with them, was likely to become unmanageable, and did become unmanageable, then, inasmuch as the care of the owner extended to his property, there would be imputed to the owner negligence for the use of such an animal under such circumstances and in such a place, or there might be. . . .</p> <p>“ If he was in the exercise of due care, and the defendant was wanting in care, then it is a question of compensation for that injury. He says he lost his horse of a certain value. If, through the negligent act of the defendant, he lost his horse, then he is entitled to the fair market value of the horse at the time. He says he received certain injuries to his person which caused him to lose a certain amount of time, and time is money, and caused him pain and suffering, which he says permanently interfered with the use of one of his legs. You heard the evidence upon the one side and the other, what the chances are for ultimate recovery, how far he has progressed towards recovery, what the nature and extent of the pain have been, and I cannot add anything with reference to the measure of damages to that which so often I have stated to you in cases that have been before you, — reasonable compensation, estimated by your good judgment and knowledge of affairs, and the way in which men are accustomed to suffer by injury to their person.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ, by having his hand caught in a machine upon which he was working. At the trial in the Superior Cour,t, before Dewey, J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions. The facts sufficiently appear in the opinion.

<p>Carrier — Loss of Passenger’s Property in Sleeping Cat--Action — Negligence — Due Care — Law and Fact.</p> <p>A palace car company is bound so to manage its cars as not unreasonably to expose the property of a passenger to an unusual risk of loss by theft or otherwise. In an action against a palace car company for the loss of a passenger’s property by theft, if there is evidence that, while a ear of the defendant was standing in the station in a large city in the evening, the porter of the car entered with the plaintiff, and, after putting his travelling bag and other property on the seat of the section for which he had a ticket on the side of the car opposite to that on which passengers were received, opened the window opposite the seat without request and in violation of a local rule of the defendant, and then left the car, the question of the defendant’s negligence is properly submitted to the jury; and if it appears that the plaintiff immediately left the car, his wife remaining behind near the seat, and then walking the length of the car and back again, sitting down in the section forward of her own, tiien walking to the platform of the car to speak to the porter, and then sitting down again in the section forward of and facing her own until the train started, when the loss of the property was first discovered, the question whether the plaintiff and his wife were in the exercise of due care, is also rightly submitted to the jury; and it is not the duty of the judge to instruct the jury that the travelling bag was not in the custody of the defendant, but of the plaintiff.</p>

Tort, in two counts, to recover damages for the defendant’s failure to deliver at Enfield in this Commonwealth with reasonable despatch two steel boilers and fittings and castings, which were shipped to the plaintiff from Fitchburg over the defendant’s railroad. Trial in the Superior Court, without a jury, before Wardwell, J., who allowed a bill of exceptions, in substance as follows.

<p>Indictment, alleging that the defendant, on July 16,1896, at Worcester, with intent to cheat and defraud George L. Stevens, did then and there falsely pretend and represent to him that she “ had theretofore secured and had positive evidence that moneys of one George H. Hill to the amount of forty-seven thousand dollars were deposited and held at the time aforesaid in some certain bank or banking institution or trust company in Providence, in the State of Rhode Island,” and that she “ had theretofore made some certain arrangement whereby, upon the payment of five thousand dollars to 'her ” by Stevens, “ the president of said bank or banking institution, or of said trust company, would hold said moneys of said George H. Hill subject to attachment thereof on a certain petition for separate maintenance of one Ella L. Hill,” the daughter of Stevens, which petition was then pending in the Probate Court for the County of Worcester against George H. Hill; that Stevens, “ believing the said false pretences and representations, . . . and being deceived thereby,” was induced by reason thereof to deliver, and did on said sixteenth day of July at Worcester deliver, to the defendant “ sundry United States Treasury Notes of the aggregate value of five thousand dollars, sundry National Bank notes of the aggregate value of five thousand dollars, sundry silver certificates of the United States of the aggregate value of five thousand dollars, sundry gold certificates of the United States of the aggregate value of five thousand dollars, of the moneys and effects of ” Stevens; and that the defendant then and there received and obtained the same by means of the false pretences and representations, and with intent to cheat and defraud Stevens of the same. “ Whereas, in truth and in fact,” as she then and there well knew, she “ had not theretofore secured and had not positive evidence that moneys of said George H. Hill to the amount of forty-seven thousand dollars were at the time aforesaid deposited and held in any bank or banking institution, or in any trust company in Providence in the State of Rhode Island,” and she “ had not theretofore made any certain arrangement whereby, upon the payment of five thousand dollars to her” by Stevens, “the president of said bank or banking institution, or of said trust company, in said Providence would hold said moneys of ” George H. Hill subject to attachment thereof on the petition of Ella L. Hill.</p> <p>In the Superior Court, before the jury were impannelled, the defendant moved to quash the indictment, for the following reasons:</p> <p>“ 1. There is no allegation in the indictment that there yas not forty-seven thousand (47,000) dollars in a Providence bank or trust company, as alleged. 2. The indictment does not allege that the defendant had not such evidence as it is alleged she represented was in her possession. 3. The indictment does not allege that the said evidence was not delivered to Stevens. 4. The indictment does not allege that the defendant did not deliver the evidence or has ever refused to do so. 5. The indictment does not allege that Stevens did not receive such evidence and that the arrangements were not made. 6. The indictment does not allege that Stevens ever requested the defendant to deliver to him said evidence. 7. The indictment does not allege that any or all the pretences or representations were not true. 8. The indictment does not allege that Stevens believed the pretences or representations to be true. 9. The indictment does not allege that by reason of the representations he was induced to part with any property. 10. The indictment does not allege that Stevens ever accepted or received the evidence and was thereby induced to part with property. 11. The indictment does not allege that Stevens, believing the pretences and representations to be true, parted with any property. 12. The indictment does not allege that the defendant asked, requested, or demanded any moneys or effects from Stevens, 13, The representations are too remote from the payment of the money. 14. The indictment does not allege a past or present offence, but at most a promise or an opinion or a statement as to something which may happen. 15. The indictment does not allege the pretences or representations to be of an existing or material fact. 16. The indictment does not set forth a crime by proper affirmative allegation, but consists merely of inferences and argument. 17. The indictment does not contain all the material facts and circumstances which the Commonwealth would be bound to prove in order to produce a conviction. 18. The pretences alleged are not squarely negatived, as required by the rules of criminal pleading. 19. The defendant has not been fully and fairly informed of the nature of the charge against her, so as to afford ample opportunity for every meritorious defence. 20. One of the allegations consists of a representation whereby, on the payment of five thousand dollars to the defendant, she would deliver certain evidence, while another allegation is that Stevens delivered to the defendant twenty thousand dollars. 21. The indictment does not allege a crime punishable by the laws of this Commonwealth.”</p> <p>G-aslcill, J., overruled this motion ; and the defendant excepted.</p> <p>At the trial, there was evidence that Stevens was in poor circumstances, and had no large sums of money and no real estate, and had had no income since July 1,1896, except his wages as a common mechanic ,• and that, on July 16,1896, he received a sum supposed to be $5,000 from one Durrell, of Boston, and gave the same immediately to the defendant. The defendant denied ever having received this money, or any portion of the same ; and offered to show that Stevens had been, since July 1,1896, employing persons to look up evidence in another case, and had been paying large sums of money to them. This evidence the judge excluded; and the defendant excepted.</p> <p>The defendant testified in her own behalf, and denied that she had ever secured any evidence that money belonging to George H. Hill was deposited in any bank or trust company in Providence, Rhode Island, or that she had ever made any arrangement whereby the president of “ said bank or trust company ” should hold any money of George H. Hill subject to the order of the Probate Court in Worcester upon the petition of Ella L. Hill for separate maintenance against George H. Hill; and there was no evidence tending to show that the representations alleged in the indictment were true. Hill testified that he never had any money, securities, or property in the State of Rhode Island, or under the control of the president of any bank, banking institution, or trust company in that State.</p> <p>Stevens testified that the defendant made the representations to him, as alleged in the indictment, in Worcester; that he, relying upon them and believing them to be true, went to Boston the next day after the representations were made, that is, on July 14, 1896, procured a check from Durr ell for $5,000, returned to Worcester and met the defendant, who declined to accept the check, but demanded the money in cash,.and repeated in substance the representations made on the previous day, as alleged in the indictment; that he thereupon arranged with the defendant to meet her in Boston on the next day, July 16, and pay her the money ; that he procured the money of Durrell, who sent the check to a bank and got it cashed, met the defendant in Boston as arranged, and paid her the money, and when the money was so paid no one was present except himself and the defendant; that before he handed her the money he asked her to inform him as to the name of the president of the bank, and she replied that she would not tell; and that he thereupon, without further request, handed her the money, and never after that asked her in reference to the false pretences or representations alleged.</p> <p>Upon this evidence the defendant asked the judge to rule “ that there were no representations or false pretences when the money was paid, and that the variance is fatal.”</p> <p>The judge refused so to rule ; and the defendant excepted.</p> <p>At the close of the evidence, the defendant requested the following rulings :</p> <p>“ 1. If the jury find that the amount paid or given to the defendant does not agree with the amount alleged in the indictment, they must return a verdict "of ‘ Not guilty.’ 2. If the jury find that the place where the money was given to the defendant is described in the evidence as at Boston, they must return a verdict for the defendant. 3. The allegation that said money was paid at Worcester is not supported by the evidence, and therefore the jury should return a verdict for the defendant. 4. There is a variance in the allegations in the indictment, in regard to the representations as to the amount to be given the defendant and the amount received, and therefore there must be a verdict for the defendant. 5. If the jury find that the defendant did not receive §20,000, there must be a verdict for the defendant. 6. If the jury find that the money was not given at Worcester, there must be a verdict for the defendant. 7. If the jury find that Stevens did not give the defendant $20,000 at Worcester, July 16, 1896, they must return a verdict for the defendant. 8. If the jury find that the representations of positive evidence, as alleged in the indictment, were true, they must return a verdict for the defendant.</p> <p>The judge refused to give these rulings; and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Three actions of tort, under Pub. Sts. c. 112, § 213, by the administrator of the estates of Alfred Lamoureux, Rosilda Lamoureux, and Edmond Lamoureux, respectively, for causing their deaths.

<p>Contract, by the administratrix of the estate of James B. Rumrill, upon a promissory note for $3,400 or $3,500, alleged to have been made by the defendant on November 30,1894, payable on demand to the plaintiff’s intestate, and to have been lost. Answer: 1. A general denial. 2. Payment. Trial in the Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that the plaintiff’s intestate was without property until about October 1, 1894, when he came into possession, by inheritance, of about $9,000, mostly in cash; that he had lived apart from his family for the ten years next preceding his death; that he boarded at a hotel in Chicopee kept by the defendant from about October 1, 1894, until January 6,1895, when, owing to some trouble between him and the defendant, he removed to a neighboring hotel, and there died on January 19,1895, after a short illness; and that the plaintiff is his widow.</p> <p>To prove the consideration for the note, the plaintiff called Arthur B. West and Edward Pynchon, cashier and teller respectively of the Chicopee National Bank of Springfield, each of whom testified that the plaintiff’s intestate had an account at that bank from October 12, 1894, until his death, and identified two checks drawn by him to the order of the defendant, one for $500, dated November 9, 1894, and one for $3,000, dated November 30, 1894, both indorsed by the defendant; and that the defendant deposited both checks, each on the day of its date, to his own credit, in the same bank, where he also had an account.</p> <p>The witness West testified, against the defendant’s objection, that the plaintiff’s intestate made a deposit of $7,000 on October 12, 1894, in said bank.</p> <p>William G. Rumrill, a son of the plaintiff’s intestate, testified that, on the morning of his father’s death, he called on the defendant and asked him “ if he knew where my father’s deeds and notes and bank-book were, and he said he didn’t know where his notes were; but his deeds were locked up in his (defendant’s) safe ” ; and that he also said, “ There is that note of mine for thirty-five hundred dollars, and one of John Sullivan’s for fifty dollars, I don’t know where they are.” Upon cross-examination, the witness testified that the defendant told him at the same interview that the last he knew of the notes and bankbook they were in the safe of one Frank Morton, a few minutes” walk from the place where the interview took place; and that the witness did not go to Morton’s to look for them. Upon redirect examination, the witness was asked, “ Why didn’t you go to Frank Morton’s safe?” The defendant objected, and, in answer to a question by the judge, stated that he should contend that there was significance in the failure to go to Morton’s. The witness was then permitted to answer, against the defendant’s objection, “ The day my father took the papers away from Mr. Morton’s safe he told me he had been over there and got them from Mr. Morton, and he said he and Mr. Morton had a few words. That’s why I did n’t go there, and I told the defendant they were n’t there because my father told me so.” It did not appear at what time this conversation between the witness and his father occurred, and the defendant did not ask to have the evidence restricted to any particular purpose.</p> <p>The defendant testified that he paid back to the plaintiff’s intestate $100 at the time he received from him the check for $3,000, and gave his note for $3,400 ; that he paid the note to the intestate in bank bills in three instalments, the last being at the defendant’s barn on January 11, 1895; that his brother, Thomas J. Ash, was present at the last payment; that the note was delivered up to him when the last payment was made; and that he immediately afterwards showed it to his wife, Annie C. Ash, and destroyed it in her presence. The defendant’s brother and wife corroborated respectively his testimony in regard to this last payment and the destruction of the note. Thomas J. Ash also testified that the plaintiff’s intestate told him about one of the other payments, and one Kelley corroborated Thomas J. Ash in respect thereto. The defendant also testified that some deeds belonging to the plaintiff’s intestate were delivered to him by the latter prior to the making of the note in suit, and were kept in his safe until after the intestate died; but that he never had the conversation with the witness Rumrill which the latter testified as occurring on the morning of the intestate’s death.</p> <p>In rebuttal, one Fitzgerald, an employee of the defendant during all the time the intestate was boarding at the defendant’s hotel and for several months thereafter, and who knew before the intestate’s death that he had lent a considerable sum to the defendant, testified that on several occasions shortly after the intestate’s death the defendant made statements to the witness to the effect that the sum was $3,500 ; that he had not repaid it; and that he had got the note for $3,500 which he gave for it and had destroyed it, and cautioned Fitzgerald to keep still about it. The defendant denied that he ever made such statements; and there was other testimony tending to prove that, since this action was commenced, Fitzgerald had stated, “ The note has been paid. I did n’t see the monejr paid, but I remember the time when it was paid.” Fitzgerald denied making such statement.</p> <p>Sidney Sanders, the attorney who brought the action, also testified, in rebuttal, that, at an interview with the defendant shortly after the intestate’s death, he demanded payment of the $3,500, whereupon the defendant stated that the note was for only $3,400, and that he had paid it to the intestate; that, in answer to questions by the witness, the defendant stated that he paid it a few days after the intestate left his hotel; that he paid it “ on the bridge,” which was not the place where the defendant testified that he paid either of the instalments; that he paid it in bills; that no one was present; and that the note was then and there delivered up to him and destroyed by him. The witness was then asked, “ Before the defendant left your office that day did you say you would sue him?” and, against the defendant’s objection, was permitted to answer, “ I have forgotten, so I could not say absolutely, but I presume I told him, when he said he was n’t going to pay it, that I should sue him if it was not paid.” The defendant had previously testified, without objection, upon cross-examination, in relation to this interview, that Sanders told him at the close of the interview that he should sue him.</p> <p>At the close of the evidence, the defendant requested the judge to instruct the jury as follows:</p> <p>“ 1. Evidence of verbal admissions should be received by the jury with great caution. 2. Admissions and declarations should be scrutinized and received by the jury with caution, as that is the most dangerous evidence that can be admitted in a court of justice, and the most liable to abuse. 3. Evidence of admissions by the defendant should precisely identify the admissions, and show such admissions deliberately made by the defendant.”</p> <p>The judge refused to give the instructions requested, and upon the point covered by these requests instructed the jury as follows:</p> <p>“ There is evidence with reference to conversations between William G. Rumrill, who is the son of James, and the defendant, which would tend to show, provided you are satisfied of the truth of the evidence, that the defendant did not at that time assert that he had paid the note, but on the contrary made statements which would lead to the inference that he had not paid the note. But you understand that the defendant denies that he had such conversation. Then there is evidence in the case to which your attention has been directed in argument, and which you ought to consider together with all the other evidence in the case, coming mainly from Fitzgerald. Fitzgerald says that soon after Rumrill died, if not on the same day then the next day, he had a conversation with the defendant, in which he said to him in effect,—I do not undertake to state it precisely, — but in effect that he was indebted to Rumrill in a considerable sum; he did not name the sum; that he, however, had the note which he had given to Rumrill and that nobody would know anything about it, and that he, Fitzgerald, should not say anything about it to anybody. And the plaintiff relies to some extent upon this statement then made, and upon a subsequent occasion by the defendant to Fitzgerald. Fitzgerald relates another conversation at a later time, which he had with the defendant, in the course of which he made substantially the same statement, that he owed Rumrill this money, but that he had acquired possession of the promissory note, and that the Rumrills could not prove that he owed the father and husband, and that he, Fitzgerald, should say nothing about it. As I say, the plaintiff relies upon that evidence, as well as the other evidence in the case. Now, if you are satisfied upon the evidence in the case that Fitzgerald has related to you the substance of what the defendant said to him upon those occasions to which reference has been made, and you are first to be satisfied that he has given you the substance of those statements, why then that will be evidence that will be entitled to consideration; it will be evidence in the nature of an admission of indebtedness upon the part of the defendant to James B. Rum-rill, and, furthermore, evidence of an assertion upon his part that he owed Rumrill. It sometimes happens, as you know, as we all know, that where one man undertakes to repeat something which some other person has said to him, he, through not using the correct equivalent of the words which were employed in the conversation, gives a different complexion and color to what has been said than it ought really to have, and therefore it is important that you should be satisfied, as I have already said, that Fitzgerald has repeated correctly in substance what the defendant said to him. If you are satisfied that he has given the substance correctly of what the defendant said, then, as it has been suggested, that would be in the nature of an admission upon the part of the defendant, in the nature even of an assertion, that he owed Bumrill this money and that he was undertaking to escape from the payment of the debt to the estate by suppressing the evidence of the debt, that is, the promissory note. I do not mean, by referring to these particular pieces of evidence, to give to them undue prominence over the other testimony in the case. It is for you to say what significance the evidence shall have. It is for you to say how much more important one piece of evidence is than another, if there is a difference in the effect and significance of one as against another.”</p> <p>The jury found specially that the note was for S3,500, and that it was destroyed without right by the defendant, and returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. The declaration was at common law.

<p>Petition, to enforce a mechanic’s lien, under Pub. Sts. c. 191, for labor furnished under a subcontract in the erection of a building on the respondent’s land in Worcester. Trial in the Superior Court, without a jury, before Dewey, J., who found for the petitioner; and, at the respondent’s request, reported the case for the determination of this court. The facts appear in the opinion.</p>

Complaint, for keeping an unlicensed dog. The complainfc alleged “ that Henry T. Coates of Leominster in said county of Worcester on the first day of May in the year of our Lord one thousand eight hundred and ninety-seven at Leominster in said county of Worcester and on divers other days and times between that day and the nineteenth day of July, A. D. 1897, at said Leominster unlawfully did keep a certain male dog, said dog not being then and there registered, numbered,…

<p>Bill in equity, filed in the Superior Court, against Paul Pelland, Josephine P. Pelland, Joseph Martin, and also Henry E. Gajdord, as assignee in insolvency of the estate of said Paul Pelland, alleging the following facts.</p> <p>The defendant Paul Pelland, to secure payment of his promissory note for $2,450, on or about January 31,1885, executed and delivered to the Glasgow Company a mortgage of real estate in South Hadley, which was duly recorded.</p> <p>By a sealed instrument, duly recorded, the Glasgow Company assigned the mortgage to Stephen C. Weld, who, in consideration of |1,650, assigned the mortgage to the plaintiff, by an instrument under seal and duly recorded, and the plaintiff is now the owner of said mortgage.</p> <p>On or about January 20, 1886, the defendant Paul Pelland gave to the defendant Martin a second mortgage of the premises, subject to the encumbrance of the mortgage to the Glasgow Company, and Martin is now the owner of such second mortgage.</p> <p>The defendant Paul Pelland, on or about July 20, 1887, by the intervention of Henry W. Taylor and by deeds duly recorded, conveyed to the defendant Josephine P. Pelland, who since January 31, 1885, had become his wife, one undivided half of the premises, subject to the mortgage given by him to the Glasgow Company, and Josephine P. Pelland is now the owner of such undivided half of the premises.</p> <p>On or about February 21,1894, the defendant Henry E. Gay-lord was appointed assignee in insolvency of the estate of the defendant Paul Pelland, and as such assignee now holds the right, title, and interest of the defendant Paul Pelland in the mortgaged premises.</p> <p>When the mortgage so assigned by Weld was delivered to the plaintiff, it was duly sealed, but it has recently been discovered that, by accident or mistake, no seal was affixed to the mortgage at the time it was signed, acknowledged, and delivered by the defendant Paul Pelland.</p> <p>The several defendants, being all the persons who have had any interest in the premises since the execution of the intended mortgage, have treated the same as a valid and subsisting lien and encumbrance upon the premises, and have received and taken all their rights and interests in the premises with that understanding, and the same ought to be so regarded.</p> <p>They, however, pretend and claim that no right or title has accrued to the plaintiff under the mortgage, and that it cannot and ought not to be used by him to convey title to the premises according to the power therein contained.</p> <p>The defendant Martin has commenced proceedings to foreclose the mortgage so given him by the defendant Paul Pelland, with intent effectually to deprive the plaintiff of all right, title, and interest in and to the premises by virtue of the intended mortgage.</p> <p>The prayer of the bill was that the instrument might be reformed so as to be the deed of the defendant Paul Pelland; that the seal of Paul Pelland might be affixed thereto with like force and effect as if it had been attached before the delivery of the instrument; that the defendant Martin might be enjoined from proceeding with the foreclosure of his mortgage, and from assigning the same; and that the defendant Josephine P. Pelland might be restrained from conveying, leasing, or in any way transferring the premises or her title thereto; and for other and further relief.</p> <p>The answer alleged that all the questions involved in this suit had already been determined by a suit in equity between the same parties, in which the present plaintiff was defendant, and the present defendants, except the assignee in insolvency, were plaintiffs ; that the last named suit in equity was referred to a master, who, after hearing the parties, found among other things that “the instrument purporting to be a mortgage under which the defendant made his foreclosure sale, and by virtue of which he now claims title, as offered in evidence before me, appears to be properly sealed. But I find as facts under the third amendment to the plaintiff’s bill, that at the time this instrument was originally signed, acknowledged, delivered, and recorded, it was not sealed, and that the seal now on it was attached some time after its execution and without the knowledge or consent of Paul Pelland, the only party who signed it, although in the testimonium clause he purports to set his hand and seal thereto; and consequently this instrument could have no effect, either as a conveyance of, or as a power to convey, real estate ; that the so called foreclosure sale was a nullity ”; that the instrument therein referred to is the same instrument which the plaintiff seeks to have reformed in the present suit; and that a decree for the plaintiffs was entered in the former suit, which recited that the instrument in question was invalid and void, and ineffectual either as a conveyance or as a power to convey the real estate therein described; that “ the seal now upon said mortgage was placed thereon after its execution and delivery and without the knowledge or consent of said Pelland ”; and that the attempted foreclosure of the same and sale of the real estate thereunder were nullities and void.</p> <p>An amendment to the answer alleged “that the instrument purporting to be a mortgage, and annexed to the plaintiff’s bill of complaint, was materially altered and changed subsequently to its delivery by said Pelland to the Glasgow Company, and without his knowledge, consent, or authorization, and that therefore the plaintiff is not entitled to the relief prayed for in his bill of complaint.”</p> <p>The third amendment to the bill in the former suit, referred to in the quotation from the master’s report in the answer to the present bill, contained the following allegation: “ The plaintiffs farther say that the alleged first mortgage, of which the defendant became assignee, and which he afterwards went through the form of foreclosing, was not a valid mortgage, but was invalid, void, and of no effect, because at its execution and delivery there was no seal upon said mortgage.”</p> <p>At the hearing, before Dewey, J., no evidence was introduced upon either side except the pleadings, master’s report, and the decree in the former suit. The plaintiff offered evidence tending to show that it was the intention of Paul Pelland, at the time of the execution of the mortgage, that there should be a seal upon it opposite his name. To the admission of this evidence the defendants objected, and contended that the decree and master’s report in the former case, and the subsequent alteration of the alleged mortgage by affixing a seal thereto, as set forth therein, rendered the offered evidence incompetent and immaterial.</p> <p>The judge reported the case for the determination of this court, by agreement of the parties. If the evidence was not competent and material, the bill was to be dismissed; otherwise, the case was to stand for further hearing.</p>

<p>Tort, for erecting and maintaining a barrier in a certain channel, whereby the water was caused to flow upon the plaintiff’s premises. Trial in the Superior Court, before Hardy, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff put in evidence a deed of her premises from one Nixon, dated May 1, 1890, and duly recorded. The premises were situated on the southerly side of Main Street, at the corner of Putnam Street, and on the easterly side of Putnam Street, in Fitchburg.</p> <p>The defendant was the owner of a block situated on Main Street easterly of the plaintiff’s premises, the land of one Cutler however intervening between the plaintiff’s land and that of the defendant. The channel in question extended from the wheel pit of the Putnam Machine Company, a point some distance westerly of Putnam Street, through land of the Putnam Machine Company to Putnam Street and under that street by a culvert, and then along the southerly side of the plaintiff’s premises, past the Cutler premises, across the lot of the defendant underneath the block of buildings erected by him, through a stone cemented channel, which there was evidence tending to show that the defendant had constructed.</p> <p>Next southerly of the plaintiff’s premises and extending easterly to the defendant’s premises was a lot, formerly of one Joseph Cushing, extending westerly to Putnam Street. Four or five years before the action was brought, Cushing had built on the northerly side of the channel a wall, which was all or nearly all on Cushing’s land. There was evidence tending to show that before the wall was built the channel flowed next to the plaintiff’s land.</p> <p>Charles A. Babbitt, called as a witness by the plaintiff, testified that the plaintiff’s block was on Main and Putnam Streets, and extended back to Putnam’s raceway, so called; that there was a large wall that separated the plaintiff’s premises from the raceway as it now runs; that that wall was built about five years ago; that it extended from Putnam Street to the end of the plaintiff’s estate and by it; that before that wall was built the raceway ran right along, washing the shores of the plaintiff’s estate until it passed it; that there was a grate on the defendant’s land “ that went down,” and a large timber was put across the whole of the stream, and the bottom of the grate rested on the timber; ‘that the grating leaned up against the wall of the defendant’s building; that there were fifty bars in the grating; that when the plaintiff bought the premises the raceway, after it passed her premises, spread out and was wider after it got on to one Crocker’s land, Crocker being the grantor of the defendant; that a year or two before Crocker sold to the defendant he put in a wall on each side of the raceway, so that it confined it between two walls; that the defendant took those walls out and put in new ones; that they were very nearly in the same place as the new walls which the defendant put in; that the channel was narrower as the defendant constructed it than as Crocker left it; that the log on which the bottom of the grate rested was imbedded in the bed of the channel; that the top of the log was flush with the bottom of the channel outside of the grating; that the bars in the grating were about a quarter of an inch wide and about an inch thick, and about an inch and a half apart; that the grating covered the whole entrance to the opening under the defendant’s block; that the surface water from Putnam Street went into the raceway; that there was an iron grate in Putnam Street through which the surface water from that street would run into the raceway; that before the erection of the grating at the defendant’s block, which was in 1894, there never was any trouble with the raceway or canal; that boards, paper, chips, and all sorts of stuff, came down and lodged on these bars, and the result was that the refuse, striking against the bars and the boards and whatever there was, would make a dam there and not let water flow through it, but raise the water, which set back and flowed into the cellar of the “old house,” so called, on the plaintiff’s premises ; that that happened very frequently before the time alleged in the declaration, and it was cleaned off by the defendant and the witness; that the defendant, whenever notified, would go there and rake off the grating, and just as soon as the grating was raked off the water would come through and become lower; that the defendant took charge of the grating; that he had seen the defendant’s officers at the grating many times; that he had requested the defendant’s president and cashier to clean off the grating, and they had done it; that he had cleaned it off himself more than one hundred times; that he had seen the plaintiff’s tenants cleaning it off; that there was a general undertaking to keep it clean; that on March 21, 1895, the date alleged in the declaration, between eleven and twelve o’clock in the forenoon, the witness was notified that there was trouble with the grating; that he went there and found that the water was up to the top of the grate, and that it was flowing back and had gone into all the plaintiff’s cellars; that the grating was not totally obstructed, but at the top the obstruction was so large it could not get through the grate, and the witness took hold and pulled off some boards and a lot of stuff, and the water lowered considerably; that he had a rake which finally caught down low, and he pulled the rake out, and a big canvas that had followed and lodged up against the grating came out; that he would not undertake to say how large the canvas was, but it was large enough to cover the whole grate; that the canvas came from the defendant’s building, which was in process of erection at this time; that the canvas was used for the purpose of covering the brick, as the witness supposed; and that, after the canvas was pulled up, the water lowered instantly.</p> <p>On cross-examination, the witness testified that there was rubbish of various kinds on the grating; that he did not know who put it there or where it came from; that he could not tell whether the plaintiff’s tenants put it there or not, but they might have done so; that after the injury complained of the city had cleaned out the channel between Putnam Street and the defendant’s building; and that he saw them take out a great many cartloads of stuff, but did not know how much.</p> <p>The plaintiff called John W. Hart, who was a tenant of one of her buildings, and occupied one of the cellars that was overflowed by the water setting back on March 21. He testified that before the grating was put in the cellar was all right; that after this grating was erected the water came into his cellar, and when the water came in he found rubbish collected on the grating ; that he had seen paper, boards, and rubbish lodge there, but he did not know where the rubbish cam^ from; that on March 21, about ten o’clock, his attention was called to the cellar, and the water in it was quite high, — two or three feet; that he went to the defendant bank and notified the president, and he sent a man there; that the grate was covered with water, and it ran against the building ; that the water was much higher than its normal height; that they cleaned the grating off, raking off chips, paper, and stuff that had collected there; that he saw them pull off a large canvas which covered the grating ; that he saw the canvas about the building before that time; that he had seen them use the canvas at various places on the building; that the water went down immediately after the canvas was removed, and was all out of his cellar in half an hour; that the grating rested on a timber twelve inches square in the bottom of the trench; that he thought the timber was above the bed of the stream; that he thought it was stuck in the bed of the stream very little; and that on that day he saw no other obstruction in the canal than the grating and the things collected on it.</p> <p>The plaintiff called several other witnesses, who corroborated the testimony of Babbitt and Hart as to the accumulation of rubbish on the grating and the flowing back of the water upon the plaintiff’s premises, the removal of the rubbish, and the immediate subsidence of the water.</p> <p>The defendant put in evidence a deed from the Putnam Machine Company to Joseph Cushing, which conveyed the land next southerly of the plaintiff’s premises and of the Cutler lot, and extending from Putnam Street easterly to the land and block of the defendant, and some distance south of the premises in question. This deed was dated August 16,1884, and was duly-recorded, and contained the following stipulations:</p> <p>“ Together with all rights, interests, and privileges, if any, which it may have in respect to the racecourse which passes through said land; excepting, however, and expressly reserving the right to use and enjoy a racecourse across said land and to flow water through the same in an aqueduct or channel of the same dimensions as, and in continuation of, the aqueduct now used by it under said Putnam Street; and this deed is upon the express condition that no building or other erection shall be put upon said land so as to interfere with the said right, or with the flow of water áforesaid.”</p> <p>The defendant also put in evidence a deed from Charles T. Crocker to the defendant, dated February 5, 1894, and duly recorded. This deed conveyed a parcel of land bounding northerly on Main Street, easterly on land of one Brigham, southerly on land of Joseph Cushing, and westerly on land formerly of the Putnam Machine Company, now of Cushing, “subject to the right of the Putnam Machine Company to maintain their racecourse across said land and to flow water through the same; and this deed is upon the condition that no building or other erection shall be put upon said land so as to interfere with the said right, or with the flow of water aforesaid.”</p> <p>The defendant called as a witness George Raymond, a civil engineer, who testified that he had lived in Fitchburg forty years, and was city engineer in the years of 1873 and 1874; that there was a sewer put in by the city a few years before, extending from Main Street through Putnam Street to this channel, and emptying into the channel in the Putnam Street culvert; that the grating in question was composed of fifty bars, which were one quarter of an inch thick and one inch wide, and one and a half inches apart; that the bars were so placed that the thin dimension was in the direction of the flow of water; that the bars were five feet in length, and ran up and down; that when the gates at the Putnam Mill wheel were shut the water fell sixteen-inches ; that on June 16,1897, he put the grate in, it having been taken out before that time, and that when the mill was running it raised the water one quarter of an inch in the stream; that in June, 1896, he made a survey and profile of the channel, and found it filled with various rubbish and mud above Putnam Street on the west, in the Putnam Street culvert, and below the Putnam Street culvert to and into the channel under the defendant’s building; and that since June, 1896, the city had taken out a large quantity of that rubbish and material.</p> <p>On cross-examination, he testified that before the pond was filled there was no defined bed for the channel below Putnam, Street; that before the defendant’s building was put up, Crocker, the former owner, had enclosed the channel across the lot with two walls, leaving it open at the top ; that the north bank along the plaintiff’s land was indicated by a low cobble wall, which was buried under rubbish; and that in June, 1897, when he made the measurements referred to, the bed of the channel had been materially deepened and widened by the removal of the rubbish.</p> <p>The defendant called as a witness Edgar S. Moulton, who testified that he built the defendant’s building above the foundation, by a contract furnishing the labor and material therefor, and took possession thereof for that purpose in September, 1894, and retained possession until July, 1895; that Crocker put walls in, in 1893, of granite stone; that above the walls the channel was full of rubbish of all kinds; that he himself put the wall on the northerly side of the channel along the Cutler land and the plaintiff’s land for Cushing, in 1891; and that he built a solid wall there.</p> <p>On cross-examination, he testified that he had nothing to do with the foundation of the defendant’s building, but he took it after the foundation was built; and that the channel constructed by the defendant over its lot was in the foundation of the building.</p> <p>The defendant called David A. Hartwell, city engineer of Fitchburg, who testified that the overflow sewer extended from Main Street through Putnam Street and emptied into this channel under Putnam Street; that this was an extension of a Sewer through Oliver Street, entering Main Street on the north side of Putnam Street; that this was intended for an overflow sewer, and there was a catch-basin at Main Street with a ten-inch pipe designed to carry the sewage coming down Main Street and Oliver Street from points west and north of the junction of Putnam and Main Streets into the Main Street sewer which runs easterly from Putnam Street; and that when this ten-inch pipe was clogged up, as he had seen it clogged up, the sewage would flow over down Putnam Street into the channel in question.</p> <p>It was agreed that the wheel in use at the Putnam privilege on March 21, 1895, was a wheel that discharged practically the same amount of water as the wheel in use at the time of the deeds from the Putnam Machine Company to Cushing, and from Crocker to the defendant.</p> <p>Charles A. Babbitt was recalled, and, in rebuttal, testified that the grating was in place when Moulton began to build; and that he knew the man who had charge of the foundation put in the grating.</p> <p>The plaintiff also put in evidence in regard to the effect of the water on March 21, 1895, upon her premises.</p> <p>The defendant asked the judge to rule as follows:</p> <p>“ 1. On the evidence in this case the only obligation the defendant was under, with respect to the canal or channel referred to in the plaintiff’s declaration, was to allow the Putnam Machine Company to maintain it as a racecourse across the land, and to flow water through the same; and if the defendant provided a sufficient aperture and channel to carry off the water which ordinarily flowed from the wheel and tail-race of the Putnam Machine Company’s mill, it would not be liable for any flooding of the plaintiff’s premises by water coming from any other source.</p> <p>“ 2. If the defendant’s channel under its building was of sufficient dimensions, at the time complained of, to carry off the water then flowing from the Putnam wheel through the racecourse, the defendant is not liable to the plaintiff by reason of any flooding caused by water coming from any other source, whether from sewers of the city of Fitchburg or from surface water flowing in the streets or on the surface of the ground and discharged into said channel.</p> <p>“ 3. If the dimensions of the channel provided by the defendant were sufficient to carry the water from the mill of the Putnam Machine Company, as it existed in 1884, the defendant is not liable for any obstruction of the stream caused by the discharge into it, above the plaintiff’s premises, of sewage or surface water from the sewers of the city or from the streets of the city, or by rubbish thrown or carried into the stream by third persons or by causes over which the defendant had no control; and in order to recover, the plaintiff must show that the defendant, by the obstruction alleged, contributed appreciably to the plaintiff's damage.</p> <p>“ 4. If the plaintiff suffered any damage by the flooding of her premises, it is necessary for her to show, in order to recover damages in this, case of the defendant, precisely what part of her damages was caused by the negligent and unlawful act of the defendant, and if the facts do not disclose what part of the whole damage was caused by the defendant’s negligent act, there can be no recovery in this case.</p> <p>“ 5. The defendant was in no way bound to provide for the discharge of water thrown or carried into said channel by the sewers of the city, or by the channels on the surface of the streets, nor for water discharged from the premises other than the Putnam Machine Company’s mill; and if water was discharged from said sewers or from streets or other premises, or if obstructions in the nature of rubbish thrown into said stream actually caused the water to set back upon the plaintiff’s premises in any appreciable degree, the plaintiff cannot recover in this case unless she shows what portion of the flooding was caused by the negligent acts of the defendant.</p> <p>“ 6. There is no evidence that the screen or grating in and of itself caused the water to set back on the plaintiff’s premises, but only that rubbish of various kinds accumulated against the screen or grating caused it; and there is no obligation of the defendant shown to keep the stream clear, or to provide for the passage of rubbish thrown or carried into the stream without its fault, and therefore the plaintiff cannot recover.</p> <p>“ 7. If the defendant would be liable for any negligent failure to remove obstructions placed by third persons upon the grating or screen, there is in this case no evidence of any neglect on the part of the defendant to remove the obstructions, which, on the evidence, caused the water to rise and overflow the plaintiff’s premises.’’</p> <p>The judge declined to give the rulings requested, and instructed the jury, among other things, as follows:</p> <p>“ It is for you to find whether this was a watercourse, and I instruct you, as a matter of law, that, so far as the facts are concerned in this case, her [the plaintiff’s] rights would be the same under an artificial watercourse as under a natural watercourse; that she would be entitled to be protected from any obstruction of this artificial watercourse by the wrongful act, or negligent act, of the proprietors of land below.</p> <p>“ Now, the next question that arises in this case is, What has the defendant done with reference to the use of this artificial watercourse ? Has the defendant erected a barrier, or anything that could be called a barrier, to obstruct the flow of this stream ? Has the defendant, in connection with the keeping of an aperture open for the passage of water, done anything which would have a tendency to obstruct the natural flow of the stream, and has the defendant maintained that structure ? Was this grating erected or maintained by the defendant previous to March 21, 1895 ? The court, as you heard, was called upon to say there was no evidence for you to consider upon that point. That is a question of fact. It is not a question before you simply whether or not the defendant has erected this grating or screen, but also you are to consider, if you do not find that the defendant by its actual officers or agents erected it, whether or not the defendant has maintained that screen. If you should find it maintained it, even though it had not erected it, on that issue it would be your duty to find for the plaintiff. . . .</p> <p>“ If you are satisfied, upon all this evidence, that there is no evidence which did connect the defendant with the maintenance or erection of the dam, then it will be your duty upon that issue to find for the defendant. . . .</p> <p>“ The next proposition is, if you find that the defendant did erect or maintain this structure, whether the defendant did anything that was wrong in its nature, and whether by the act of the erection of the screen, together with the acts of any other parties, or by reason of the fact that rubbish collected here, the defendant is liable. And that is one of the very important things in this case, and depends mostly upon questions of law. ...</p> <p>“ Now, if you find that the defendant was the owner of this building, (and there seems to be no doubt upon that point,) or if you find that the defendant was maintaining this screen, it is for you to say, under the instructions of the court, whether or not the defendant caused damage to the plaintiff by such maintenance.</p> <p>“You have evidence here tending to show that the defendant undertook certain obligations with reference to the Putnam Machine Works. That obligation is an obligation created by contract. If you find that the plaintiff was the owner, upon the bank of the stream above, the defendant not only undertook an obligation by contract with the Putnam Machine Works, but it was its duty to see to and manage its property so as not to affect or injure the rights of others upon the same stream above. It had no right, by reason of the fact that it was under certain contract, obligations with the Putnam Machine Works, to so manage this opening as to cause the artificial stream ... to overflow to the injury of the plaintiff. . . .</p> <p>“ Now the first question is, Was the method of maintaining this opening by the screen a proper method ? Was this grate a proper aperture or opening, under the circumstances? It is argued by the defendant, that it had the right to protect its own land from the various substances being carried under that building. That is true. It had the right to do that, but it did also undertake to become liable to anything that might occur if it attempted to carry out that right. If it chooses to put that screen there for the purpose of protecting itself from dead animals that might float down the stream, it has no right, under the circumstances, to do it in such a way as may cause an overflow of the water to the damage of the proprietors above. It has to take the expense of settling all liabilities for damage that may arise. . . .</p> <p>“If you find on that evidence that the defendant did have some knowledge and some reason to believe that such obstructions would occur, that is proper evidence for you to consider on the question whether or not this was a proper method, if the defendant was under the duty to protect the rights of others upon the same stream.</p> <p>“ Now, your attention has been called here to the liability of the defendant, by reason of the fact that other parties may have put obstructions into that stream. It would be possible for you to find, and very probable that you would find, on this evidence, that the act of erecting the screen alone would cause no damage to this plaintiff. It may also be probable and possible for you to find, if there were no screen there, that these foreign substances, or rubbish, would have floated down and would have caused no damage to the plaintiff.</p> <p>“ It is a question for you to find, whether or not, by the combination of circumstances, that is, by the location of the screen across this stream, and by the lodging of rubbish against it, whether that combination has caused injury to the plaintiff. Those are the main questions in the case, whether or not this defendant is liable by reason of the fact that some other parties have combined with it, and by the result of that combination, not by any accident or arranged plan beforehand, but by the result of certain facts, that is, the effect of the screen and the result of the fact that certain articles went into the stream that caused this obstruction, the defendant would be liable. . . .</p> <p>“If the injury was caused to the plaintiff by the erection of this barrier, taken in connection with the act of a third party, the acts of the defendant and the third party acting in their effect together, then, although no injury would have happened by the acts of either alone, the defendant would be liable. The defendant has no right so to maintain this opening, or permit it to be so continued, as to flood the land of the plaintiff, but is bound to keep open sufficient outlet for such waters. If, after the defendant had made this culvert, with the necessary outlet for waters sufficient, other parties with the knowledge of the corporation officers did close such outlet, and damage was thereby occasioned to the plaintiff which she would not have suffered but for the existence of the grate as allowed to be maintained by the defendant, then the defendant would be liable. . . .</p> <p>“Then, an important question for you to consider is, if you find that this obstruction was caused by the rubbish that collected against this grate, whether or not the defendant used due diligence to remove the same. ... If you find that the defendant or its officers have used the diligence of a man of ordinary and average prudence under the circumstances, it would be your duty to find for the defendant. But if the defendant has not used that diligence, or has not used that care which men of ordinary prudence would use under the circumstances, then it would be your duty, if you found for the plaintiff on the other issues in the case, to find for the plaintiff.</p> <p>“ A question has arisen in this case, if you find for the plaintiff on the other issues, as to the question of damage. Upon that point your attention has been called to the condition of the bed of that stream, as to its connection with the sewer of the city, or as to the chances of its connection with any surface drainage that may arise. If you should find, on the evidence in this case, that the damage to these premises was caused by the condition of the channel, that is, if it was so filled up with ashes or other matter on March 21 as to affect the rights of the plaintiff, or if you find that on that date there was any discharge to a great amount from the sewer of the city so as to cause this overflow upon the plaintiff’s land, or any discharge of surface water, the plaintiff would not be entitled to recover for damages suffered by reason of her own conduct in filling up that stream, nor would she be entitled to recover any damages by reason of the discharge of the sewers or of surface water into that stream so as to fill up her cellar. ... If you find there was evidence of such a discharge, and that the defendant contributed by its act to the increase of the volume of water that was discharged upon the plaintiff’s land, then the plaintiff would be entitled to recover the precise amount of damage caused by the defendant’s act. The plaintiff would not be entitled to recover from the defendant what damage was caused to it by the acts of the city or the fact that sewers passed through that street and discharged its sewage in such a way as to fill up the stream.”</p> <p>The jury returned a verdict, for the plaintiff; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed September 6, 1895, for specific performance of a contract, and for an injunction. Hearing before' Barker, J., who entered a decree, denying the prayers for specific performance and for an injunction, and retaining the cause for the purpose of assessing damages for breach of the contract by the defendant, and of enforcing payment thereof; and both parties appealed to the full court. The facts appear in the opinion.</p>

<p>Six actions of contract, upon policies of insurance against loss by fire- on property of the plaintiff in Springfield. After the former decision, reported 165 Mass. 541, the cases were tried together in the Superior Court, before Sherman, J.</p> <p>The jury returned a verdict for the plaintiff in each case ; and the defendants alleged exceptions, which appear in the opinion. W. H. Brooks, ( W. Hamilton with him,) for the defendants.</p>

<p>Habeas Corpus — Statute — Constitutional Law — Commitment of the Insane.</p> <p>The provisions of Pub. Sts. c. 87, § 12, as amended by St. 1894, c. 195, and § 13, as amended by St. 1894, c. 493, and St. 1895, cc. 286, 429, relating to the commitment of the insane, do not violate the provisions of the Declaration of Rights, Article 12, or the Fourteenth Amendment to the Constitution of the United States, and are constitutional.</p>

<p>City — Way — Specific Repairs — Order of City Council.</p> <p>A mere change of grade in an existing way, or change in the material of which the way is constructed, is not an alteration of the way, within the meaning of Pub. Sts. c. 49, but “ specific repairs ” on the way; and an order authorizing the work, passed by a city council, which is given by statute exclusive jurisdiction to make such repairs within the limits of the city, is not open to objection, in the absence of a provision of statute or ordinance requiring any particular form of proceeding as preliminary to the adoption of such an order.</p>

<p> Homicide—Evidence. </p> <p>At the trial of an indictment for the murder of a woman, there was evidence that, within about two hours after the murder, the defendant had in his possession money consisting of a ten-dollar bill, a five-dollar bill, and fifty cents in silver; that within about one hour before the murder, and for some time previously, he had no money of any kind; that he gave false and contradictory accounts of the way in which he obtained the bills and silver; and that, while talking of the death of the woman to a prisoner in the jail, he admitted that he had ten dollars of her money. Held, that evidence that the deceased, on the day before the murder, received a check of a certain amount and from its proceeds paid bills and made purchases, leaving a balance in her possession consisting of a ten-dollar bill, a five-dollar bill, and some change, and that a search of her house by her sister two days after the murder disclosed only a few cents in money, was proper for the consideration of the jury in connection with the other evidence in the case.</p>

<p>Tort, under Pub. Sts. c. 112, § 214, against Thomas C. Platt and Marsden J. Perry, receivers of the New York and New England Railroad Company, to recover for the loss of the plaintiff’s buildings and their contents, and other property in Norfolk, by lire communicated by a locomotive engine on May 16, 1894. At the trial in the Superior Court, before Sheldon, J., the jury returned a verdict for the plaintiff; and the judge reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Assessment upon Members of Mutual Fire Insurance Company — Statute.</p> <p>On a petition by the receiver of a mutual fire insurance company, praying that an assessment upon the members might be revoked, and that the directors might be required to make a new one under St. 1894, c. 522, § 49, which authorizes this court to make sucli decrees as under the circumstances justice and equity may require, it appeared that the previous assessment was made in good faith ; that no policy holder ever objected to its validity; that the company had issued many policies to non-residents; that nearly all the resident policy holders had paid their assessments before the appointment of the receiver, but only a few of the non-residents had so paid; that the receiver had'collected a small sum on the assessments and believed that little more could be collected; that there had been no finding that the assessment was illegal, although the receiver doubted its validity; and that the new assessment, if ordered, would be designed to meet the same losses as the first assessment. Held, that justice and equity did not require a new assessment to be made.</p>

Contbact, in three counts, to recover fifty dollars. The first count was for breach of the covenant against encumbrances in a warranty deed of land in Northampton, the breach being an alleged lien of the city on the granted premises for the amount of an entrance fee to a sewer. The second count was for money had and received ; and the third count was for money paid.

<p>Tort, for personal injuries occasioned to the plaintiff on November 10, 1894, by reason of a defect in a set of wooden steps or stairs attached to a tenement house owned by the defendant, of whom the plaintiff was a tenant. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, the nature of which appears in the opinion.</p> <p>The case was argued at the bar in September, 1897, and after-wards was submitted on briefs to all the justices.</p>

Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to the plaintiff while in the defendant’s employ. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions, the nature of which appears in the opinion.

<p>Metropolitan Water Act — Equity Practice— Taking of Right to fill Land — Sufficiency of Description of Land — Constitutionality of Statute — Sea Level — Boston Water Board Datum—“Rights” — Easement—Validity of Taking.</p> <p>If an exception to the sufficiency of an answer in a suit in equity is overruled, and no appeal from the order is taken, upon an appeal to this court from the final ■ decree such exception will be considered only so far as it appears that the final decree is affected by the order overruling it.</p> <p>The St. 1895, c. 488, entitled “ An Act to provide for a Metropolitan Water Supply,” is not in violation of the Constitution of the United States, or of this Commonwealth.</p> <p>So far as this court has any judicial knowledge on the subject, the level of the sea at mean low water in Boston Harbor is a certain and stable level for determining grades or heights in the vicinity of Boston.</p> <p>The “ rights ” which St. 1895, c. 488, in the last clause of § 4, authorizes the Metropolitan Water Board to take, in carrying out the powers and duties conferred by the statute, are rights in land.</p> <p>Section 4 of St. 1895, c. 488, after enumerating the waters, water rights, lands, and other property which the Metropolitan Water Board may take by purchase or . otherwise, “ any or all of the aforesaid lands to be taken in fee or otherwise, as said board may determine,” concludes as follows: “ Said board may take any other lands in fee, easements, rights, and other property that said board may deem necessary or desirable for carrying out the powers and duties conferred upon them by this act.” Held, that the board was empowered, when it did not deem it necessary to take lands other than those before described in fee, to take such new easements or rights in other lands as it deemed necessary or desirable for carrying out its powers and duties.</p> <p>The right taken by the Metropolitan Water Board to fill to a specified grade and perpetually to maintain the filling of certain lands, reserving to the owners thereof the right to dig and maintain below such grade necessary cellars, and to lay and maintain necessary pipes for gas, water, or drainage, in such a manner as not to affect injuriously the water in a reservoir, is a right in land which may be taken under St. 1895, c. 488, § 4.</p>

<p>Real Estate inherited by Heir—Set-off—Statute — Debt due Intestate Estate.</p> <p>The Pub. Sts. c. 136, §§ 22, 23, which provide that a debt due to the estate of a deceased person from an heir, devisee, legatee, or distributee of such estate shall be set off against and deducted from the share or claim of such heir, devisee, legatee, or distributee, do not relate to real estate inherited by an heir.</p>

<p>Bill m equity, filed October 20, 1894, against Edgar O. Silver, said Silver, Henry C. Deane, Elmer E. Silver, and Frank W. Burdett, “ now or lately copartners ” under the firm name of Silver, Burdett, and Company, Silver, Burdett, and Company, a corporation, and John W. Tufts, alleging the following facts.</p> <p>In the four years prior to September 1, 1886, the plaintiff and the defendant Tufts, as joint authors, composed, prepared, and edited a series of books and charts for instruction in music, especially designed for use in public schools and educational institutions, all of which bore the general title of the “ Normal Music Course.” These books and charts were composed, printed, electrotyped, and published under an agreement between the plaintiff and Tufts, associating themselves together for the purpose of editing and publishing such works, and declaring themselves equal owners of the copyrights of the books and charts and of the plates, and agreeing to continue the editing and publishing of the remaining books and charts of the course, sharing the cost and dividing the profits equally. The plaintiff and Tufts were equal owners in all the books and charts, and the copyrights thereof, and had paid equally the cost of the electrotype plates therefor.</p> <p>In February, 1883, the plaintiff and Tufts made a contract in writing with D. Appleton and Company, leading publishers in New York City, for the publication of their proposed series of musical books and charts, which contract gave to the publishers the exclusive right of publication for the whole term of copyrights and renewals. Down to March 28, 1885, D. Appleton and Company, as assigns of the plaintiff and Tufts, entered the titles of the books up to that date composed in the office of the Librarian of Congress, and did all other acts and things required by law for securing, perfecting, and maintaining the copyrights on the books.</p> <p>On or about March 28, 1885, the plaintiff, with the .consent and at the request of Tufts, purchased of D. Appleton and Company, for the sum of $6,200, paid wholly by himself, all the interest of D. Appleton and Company in the plates and good will of the Normal Music Course or Series, and also, for the sum of $3,871.26-, all the stock of the series or books remaining in the hands of D. Appleton and Company, the latter directing that all the plates and stock on hand at their store and at their several agencies be delivered to the plaintiff immediately, or upon his order.</p> <p>In this way, and by the consent, understanding, and agreement of Tufts, the plaintiff succeeded to the rights held by D. Appleton and Company as sole publishers of the series, under the contract with them, and for the term named therein ; and the plaintiff became the sole publisher of the series of books and charts from that date, and alone continued the publication and sale of the same as had been done by D. Appleton and Company. After bis purchase from them of their publishing interest and rights and their stock of books, the plaintiff, in carrying on the publishing of the series, expended very large sums of money in the introduction, advertising, and sale of the publications above the sums he received, before September 1, 1886.</p> <p>During this time, from March 28, 1885, to September 1, 1886, while the plaintiff alone was publishing the series, he and Tufts continued to labor as co-authors, and wrote, edited, and prepared certain of the books included in the Normal Music Course.</p> <p>On or about September 1, 1886, the plaintiff and the defendant Edgar O. Silver entered into a contract in writing, which recited in the first article that the plaintiff, “ as he is joint author” with Tufts of certain publications known as the Normal Music Course, “ and coequal owner of the copyrights and electrotype plates, etc.” of these publications, “ and as he is also at present the sole publisher of the same,” agrees that Silver ■“ shall have the exclusive right to print and publish the said series during the term of three years from the date hereof, with the use of all capital invested, appliances, and the like, heretofore used by him in said publishing business; that he will not, without the consent in writing of said Silver, write, print, or publish, or cause to be written, printed, or published during the continuance of this agreement, any other edition of the said series, revised, corrected, or enlarged, abridged, or otherwise, or of any series or books of a similar character tending to interfere with or injure the sales of the said series of music books ”; in the second article Silver agrees to print and publish the same, to pay all expenses of such printing and publishing, and to pay the plaintiff “ a sum of money equal to not less than five or more than fifteen per cent, as may be agreed upon, on the net proceeds of said publications, it being understood that such net proceeds are the receipts from all sales after deducting fifteen per cent therefrom as the sum due to said Holt and said Tufts as joint authors and coequal owners of the copyrights and electrotype plates, etc., as well as the cost of manufacture; and that he will contribute the sum of two thousand dollars as further capital to be secured by said Holt, and returned to said Silver at the termination of this agreement ”; and in the third article, that the plaintiff and Silver agree “ that to terminate this agreement at the end of three years from the date hereof a notice in writing must be given thirty days at least before the expiration of the first year from the date hereof, and that in default of such notice at the end of the first year a period of one year shall be added to the term of this agreement, and also that in default of such notice at the end of the second or any succeeding year a further period of one year shall be added to the term of this agreement as then existing, so that in any event this agreement cannot be terminated absolutely until the end of two years after that year in which such notice may be given.”</p> <p>At or about the same time, another contract, bearing the same date, was entered into between Tufts, the plaintiff, and Silver, in which Tufts and the plaintiff, as joint authors and coequal owners of the copyrights, electrotypes, etc., of the Normal Music Course, agreed that Silver should have the exclusive right of publication of the same, upon terms therein stated, for the same time as was agreed to in the contract last mentioned, and in which Silver agreed to print and publish the same and pay all expenses of such printing and publishing, and to render aim ually on the first day of February to Tufts and the plaintiff a statement in writing of the number of copies of the series printed and sold to the first day of January next preceding, and thereupon to pay to Tufts and the plaintiff a sum of money equal to fifteen per cent of the net wholesale prices of the publications, to be determined in a specified manner, and containing a provision as to termination of the contract by notice similar to that in the other contract, and also a similar provision as to the publication of competitive books.</p> <p>Subsequently to September 1, 1886, Tufts and the plaintiff' prepared new and revised editions of some of the before mentioned publications, and added others to the same.</p> <p>Silver received all the assets and accounts previously belonging to the plaintiff and used in the publication, and entered! upon the publication and introduction of the books in various, schools and cities of the United States, and made payments to-the plaintiff and Tufts of the fifteen per .cent upon net wholesale prices, as specified in the agreement, and to the plaintiff of." five per cent upon the net proceeds of the publications, under-the terms of the agreement between them.</p> <p>During such publication Silver associated with himself one Rogers, under the firm name of Silver, Rogers, and Company, and continued the publication of the books. At the time when Rogers was admitted to the firm he was fully informed of the terms upon which Silver was publishing the works, and was familiar with the contracts hereinbefore specified. Thereafter Rogers retired from the partnership, and the defendants Burdett, Deane, and Elmer E. Silver became members thereof in the place of Rogers, and the name of the firm became Silver, Burdett, and Company. At the time Burdett, Deane, and Elmer E. Silver entered into such partnership they were familiar with all the terms of the agreements hereinbefore referred to, and as members of the firm with Edgar 0. Silver entered upon and proceeded to perform the same ; and the plaintiff did not object to the admission of Burdett, Deane, and Elmer E. Silver to the partnership, or any of them, or to their interest in the publication under the contracts, but accepted them as joint publishers with Edgar O. Silver and bound by the terms of the agreements ; and the copartners of Edgar O. Silver, as they successively became such, adopted, and thereby agreed to fulfil, the undertakings and agreements of Edgar O. Silver contained in the contracts above mentioned.</p> <p>The firm of Silver, Burdett, and Company made statements of the number of books sold, and of the percentages to which Tufts and the plaintiff were entitled under such contracts, and made payments to the plaintiff in accordance with such statements, down to the year 1893.</p> <p>The copyrights upon the first books published in the Normal Music Course Series were in the names of Tufts and the plaintiff, and upon some of the later publications and revisions in the name of Silver, Rogers, and Company, and of yet later ones in the name of Silver, Burdett, and Company. The plaintiff is unable to state in what name or names each particular book as last published may have been copyrighted, but says that the copyright of every book and chart hereinbefore mentioned belongs one half to himself, and one half to Tufts, or the assigns of Tufts, in whosesoever name or names the same may have been obtained.</p> <p>On or about December, 1890, Tufts, without the knowledge or consent of the plaintiff, and in violation of good faith as well as of his express agreement with the plaintiff, conveyed all his interest in the Normal Music Course, and in all the electrotypes, plates, and cuts belonging to the authors of such publications, to Edgar O. Silver, either alone or in conjunction with his co-partners, all of whom knew that such conveyance was in conflict with the terms of the agreement and of the relations subsisting between Tufts and the plaintiff.</p> <p>In or during the years 1891 and 1892, Tufts composed or arranged, and the other defendants published and placed upon the market, another series or course of musical instruction, consisting of four books called the “ Cecilian Series of Study and Song.” Such series is a rival and competing course, and its publication is in violation, on the part of the defendants, of the contracts hereinbefore mentioned made by the parties in relation to the publication of the Normal Music Course.</p> <p>At some time not long prior to March, 1893, the individuals and copartners made defendants in this case caused themselves to be incorporated under the laws of the State of New Jersey, under the name of Silver, Burdett, and Company. In further violation of their agreements and of the course of such publication, the firm of Silver, Burdett, and Company then conveyed or attempted to convey to the corporation all the copyrights upon the works composing the Normal Music Course, all the plates, dies, etc., used in its publication, and all the bound stock and materials, and the rights of publication, resulting from their agreements.</p> <p>The plaintiff was not informed of this transfer until March, 1893, when he was apprised of the same at the time of receiving the annual sum due him for copyrights. He immediately and in writing notified the defendants of his astonishment at the transfer, or attempted transfer, and that he did not assent to but protested against the same, and to the publication of the series by the corporation, as an abandonment of the contracts made by Edgar O. Silver.</p> <p>The defendants have paid no heed to the plaintiff’s protest or rights under the contracts, all of which are personal and not assignable; but the corporation is at the present time, and ever since January 1, 1893, has been, publishing and selling the Normal Music Course as had before been done by the firm of Silver, Burdett, and Company, and has made even greater sales of such works than were made by the firm in any equal length of time, all without regard to the plaintiff’s rights therein, or to his dissent and protest, and without reporting to him in any respect since the beginning of the year 1893.</p> <p>On July 26, 1892, the plaintiff gave to the defendant Silver, and to the defendant copartners, Silver, Burdett, and Company, the following notice:</p> <p>“ You are hereby notified that I do elect to terminate, and hereby do terminate and end, in two years from the first day of September next,1 a certain written agreement or obligation’ made by and between myself, as the publisher of the Normal Music Course, so called, and said Edgar 0. Silver, dated September 1, 1886, and also a certain other written agreement or obligation, also dated September 1,1886, made by and between said Silver as one party, and John W. Tufts and myself, being the joint authors and then coequal owners of the copyright, etc. of said Normal Music Course; both said agreements or obligations having reference to the publication of said Course, so called, and being all the written agreements between said Silver and myself, either alone or with Mr. Tufts, relating to said Normal Music Course and the publication thereof in any way.</p> <p>“ This notice is given to unquestionably terminate said written agreements, contracts, or obligations, as provided in terms in the' same, and is given by me alone, because said Tufts has no longer any ownership or interest in said Normal Music Course, or the copyrights, plates, or attending properties thereof; and by giving this notice I do not admit or intend to concede that either of said written obligations has not been already violated, superseded, and abandoned by said Silver or said Tufts, or both of them, so as to release me therefrom, and I do not waive such violations and abandonment.”</p> <p>Under the “ Holt-Silver contract,” it has never been agreed by the parties what the percentage between five and fifteen to be paid the plaintiff on the net proceeds of the publications should be; but the defendant copartners paid the plaintiff annually five per cent, and no more, for the time which ended January 1, 1893. For the time subsequent to January 1, 1893, nothing has been paid to the plaintiff under the contract, and no statement of account has been rendered, and no accounting has been had whatsoever.</p> <p>Under the “ Tufts-Holt-Silver contract,” the plaintiff received fi-om the defendants his one half share of the fifteen per cent agreed upon as copyright money, with annual statements, as in the contract provided, up to the 1st of January, 1893, and has received no statement of the number of copies of the series printed, or of the number of copies thereof sold, or any account, or any money whatever, for any time since such date, under the contract, the report and payment to him up to that date having been made in March, 1893.</p> <p>The plaintiff is advised that, as well by the acts of the defendants as by the force and terms of the notice, the contracts heretofore existing between him and the defendants, or any of them, were terminated, and that a settlement of accounts under the contracts, and disposition of the assets used in the publication business, alone remain to be made between the parties to this cause. Upon the termination of the contracts between him and the defendants, the sole right of publication of the Normal Music Course and Series' revested in the plaintiff.</p> <p>Under the “ Holt-Silver contract,” he is entitled to receive at least five per cent on the net proceeds of all the publications constituting the series, to be computed as in the contract provided, resulting from the sales and business of the defendants since January 1, 1893, and to an accounting and adjustment respecting what in the contract is called “ capital,” contributed by himself and by Edgar O. Silver in the business.</p> <p>Under the “ Tufts-Holt-Silver contract,” he is entitled to receive in money one half of fifteen per cent of the net wholesale prices of the publications, to be computed as in the contract provided, with statements of the number of the books printed and the number of books sold by the defendants since January 1, 1893; and he is the owner of an undivided half, with the defendants, of the electrotype and other plates used in printing and preparing the publications, all in the hands of the defendants.</p> <p>The prayer of the bill was that it be adjudged and decreed that the contracts called the “ Holt-Silver contract ” and the “ Tufts-Holt-Silver contract” were terminated on September 1, 1894, and that the plaintiff and Tufts, or his assigns, are coequal owners of the copyrights of all the books and charts constituting the Normal Music Course, and that the plaintiff has the sole right of publishing the same for the term named in the contract of D. Appleton and Company; that the defendants other than Tufts be ordered to pay to the plaintiff five per cent of the net proceeds of all the publications constituting the Normal Music Course, original or revised, to be computed as provided in the second section of the “ Holt-Silver contract,” from January 1, 1893, to September 1, 1894, or the termination of the contract; that the defendants other than Tufts be ordered to render to the plaintiff a statement in writing of the number of copies of the series of books and charts printed, and also of the number of copies thereof sold, from January 1, 1893, to September 1, 1894, or until the termination of the contract, and to pay to the plaintiff one half of fifteen per cent of the net wholesale prices of the publications, such prices to be computed and such payment to be made as provided in the “Tufts-Holt-Silver contract,” and to deliver to the plaintiff the electrotype and other plates of the publications; and that the defendants be permanently enjoined from publishing or selling any of the books and charts constituting the Normal Music Course or Series, in order that the plaintiff might resume the publication of the same alone, and account to Tufts or his assigns for his portion of the copyright money or percentage, as provided in the contract of Tufts and the plaintiff with D. Appleton and Company.</p> <p>The defendants filed a plea and demurrer to the jurisdiction, on the grounds that a suit brought by the present defendants against the present plaintiff, and involving the same subject matter as that of the present suit, was pending in the Circuit Court of the United States for this district; and that the present suit was based upon the copyright laws of the United States, and was exclusively within the jurisdiction of the courts of the United States. The plea and demurrer were overruled; and the defendants appealed to the full court.</p> <p>The case then came on to be heard, and an interlocutory decree was entered, adjudging that the contract made by the defendant Tufts and the plaintiff with D. Appleton and Company was cancelled by the parties, and not assigned by D. Appleton and Company, and that no other contract was made which would give to the plaintiff the exclusive right of publishing the Normal Music Course ; that the contracts made between the plaintiff and the defendant Edgar O. Silver, and between Tufts and the plaintiff as parties of the first part, and Silver as party of the second part, were terminated on September 1,1894, by the notice given to Silver and to Silver, Burdett, and Company, in July, 1892; that the plaintiff on the one hand, and the defendant Edgar O. Silver as the assignee and equitable owner of the interest of Tufts on the other hand, were respectively each the owner of one half of each and all of the copyrights of all- the books and charts constituting the Normal Music Course, and that each half owner had an equal right of publishing under such copyrights ; and the defendants were ordered to transfer, assign, and convey to the plaintiff one half of each and all of such copyrights standing in their names or in the name of either of them; that the contracts did not debar the defendants from the right of publishing the Cecilian Series of Study and Song, written by Tufts, and published by the other defendants; that the publication and sale by the plaintiff, to the extent which was done, of his book and charts entitled “ H. E. Holt’s New and Improved Normal Course in Music, First Reader,” and charts published under the general title or as a part of H. E. Holt’s New and Improved Normal Course in Music, before the termination of the contracts on September 1, 1894, was such a breach of the contracts as would be a ground of recoupment in an accounting for copyright percentages under the contracts, but not such a breach or wrong as would deprive the plaintiff of the benefit of his notice to terminate the contracts; and referring the case to a master, to state the amounts due to the plaintiff from the defendants, or either of them, under the contracts dated September 1, 1886, stating the amount due to September 1, 1894; to state the amount of injury sustained by the defendants prior to September 1,1894, from the publication by the plaintiff of the book entitled “ H. E. Holt’s New and Improved Normal Course in Music, First Reader,” and his charts, or other breach of the contract; and to state the number of sets of stereotype plates in the possession of the defendants, and used in or for the publication of the Normal Music Course, and the value thereof.</p> <p>From this decree the defendants appealed to the full court.</p> <p>The master found and reported the following facts.</p> <p>■ The plaintiff, in conjunction with the defendant Tufts, was an author and joint owner of a series of music publications, consisting of nine books, graded from a first reader for children to a manual for teachers, and two sets of charts, all of which, constituted what was called “ The Normal Music Course.” The series was designed to embody a system of teaching music invented by the plaintiff, originally set forth in the books and charts, but afterwards more or less changed by the plaintiff. The defendant Silver was a publisher, whose rights under the contracts referred to in the bill had been assigned to a corporation known as Silver, Burdett, and Company.</p> <p>From the transactions between the plaintiff and this corporation under these contracts, it appears that the plaintiff assented to this assignment so far as to make him responsible to the corporation for any breach of the contracts on his part, and the corporation is responsible to the plaintiff for the royalties due under them.</p> <p>A notice to terminate was given by the plaintiff in July, 1889, but this was subsequently waived. On July 26, 1892, he gave another notice to terminate the contract upon September 1,1894, which was not waived.</p> <p>The defendant Silver, upon December 10, 1890, purchased the interest of the defendant Tufts, which purchase gave to him an equal right with the plaintiff to publish under the copyrights, and entitled him to seven and one half per cent of the net wholesale price under the “ Tufts-Holt-Silver contract.”</p> <p>Subsequently to September 1, 1894, the date of the expiration of the contract, the defendant Silver, JBurdett, and Company continued to publish and is still publishing the series by virtue of the authority given to it under the assignment by Tufts of his interest in the copyrights; and still has in its possession and uses the sets of stereotype plates formerly paid for and owned jointly by the plaintiff and the defendant Tufts.</p> <p>The amount of royalties due to the plaintiff up to September 1, 1894, was $7,488.25.</p> <p>At the request of the defendants, the master found that the amount of royalties due the plaintiff upon August 1, 1893, at which time the first edition of the plaintiff’s alleged infringing book was published, was $1,677.70.</p> <p>The evidence in support of the defendant corporation’s contention that the plaintiff had broken his contract with it, and that it was therefore entitled to damages by way of recoupment, was substantially as follows.</p> <p>The plaintiff commenced work in the spring of 1893 upon the preparation of a new First Reader, over eighty per cent of which was in and taken from the original publication, being assisted in his work by a well known professor of music. The plaintiff had printed one edition of 1,053 copies of this reader prior to August 1,1893, and a second edition of 2,000 copies between August 1, 1893, and January 1,1894. Of the total edition of 3,053 copies, 2,054 copies were sold by him between September 14, 1893, and September 1, 1894, the balance not being disposed of in any way prior to September 1, 1894. Of this number sold, about 100 were exchanged at Lexington for the First Reader of the Normal Music Course.</p> <p>Some time in 1892 the plaintiff invented and had printed three so called drill charts; these consisted of three sheets bound with the sheets in the book of charts. These new drill charts were invented to carry out different new ideas. They were made for the Normal Music Course, and were not competing charts. In addition, however, to these drill charts, the plaintiff had printed other sheets, one half of the material of which was in the old chart. ■</p> <p>Of the bound sheets called “ Book of Charts,” he had printed 511 copies, which were delivered to him in October, 1893. In the summer of 1893 he had received a -few specimen pages of the new chart, some of which he exhibited in Chicago later in the same year to one of the leading public school music teachers, and which he had used in his teaching. Of the 511 sets of charts, the plaintiff sold 100 copies prior to September 1,1894, the rest of the edition remaining in his possession.</p> <p>The purchasers of the books and the charts consisted of music teachers, school committees, booksellers, and others, who resided in various parts of the country.</p> <p>There was also evidence that as early as 1890 the plaintiff had spoken about getting out a new course, and from 1891 to 1893 there was a general understanding among the possible purchasers of the series that he was to get out a new course.</p> <p>It further appeared in evidence that three or four pages of the new book were distributed before its publication to seventy-five or one hundred of the plaintiff’s pupils to help them in the study of intervals ; and that in 1891 circulars had been printed and distributed by the plaintiff announcing the opening of his summer and winter schools, and calling attention to the plaintiff’s “New and Original Normal System of Teaching Vocal Harmony.”</p> <p>The plaintiff testified that he was continually improving his method and system of teaching, and that the changes of the charts and books were necessary in order to carry out his latest ideas; that the old charts were still in use in the Boston schools; that he had never advertised his new course, or had it reviewed, nor had he put any of his publications on public sale, and that he had not commenced the preparation of his book until the spring of 1893; that he always advocated and used the old course, even after September 1, 1894, in his summer schools; and that the copies so used were furnished by the defendants.</p> <p>The defendant corporation contended that the plaintiff was responsible in damages, not only for the writing, printing, and publishing of the book and charts, but also for the general understanding among possible purchasers of a future publication by him of a rival boob, which understanding was caused by the wide dissemination of his books and charts, and by his oral utterances from the platform, and which resulted in a decreased sale of the books and charts published under the contracts.</p> <p>“ It is evident from the evidence that the plaintiff did break his contract in writing, printing, and publishing 3,000 copies of the First Reader, and 511 copies of the chart referred to, prior to September 1, 1894; and I so find.</p> <p>“ It may also be true that he broke his contract with the defendant corporation in exhibiting the advance pages of his new chart and book, or in publishing them in any way. But, so far as such actions were concerned, the defendant corporation did not satisfy me that it had or could have been damaged in any way thereby. The publication of the circulars was not a breach of the contract, as they referred to a system of teaching, and not to any publication connected with the Normal Music Course, and the plaintiff was under no obligation to desist from improving his method of teaching, and of advertising the same.</p> <p>“ The defendant corporation did not satisfy me that the general understanding among possible purchasers of the series, from 1891 to 1893, had reference to the publication of the plaintiff’s new book before September 1, 1894, (and he had a legal right to publish after September 1, 1894, and to advertise the same,) or that the plaintiff was in any way legally responsible for such understanding. According to the eyidence, I find, therefore, that the plaintiff had done nothing in violation of the contract until the spring of 1893, when he commenced work upon the new First Reader and chart.”</p> <p>The defendant corporation contended that the damages to which it was entitled by reason of the plaintiff’s action should be measured: 1. By loss of profits upon sales of the new series admitted to have been made by the plaintiff, and estimated by the defendant corporation at $941.67. 2. By the damage to the interest of the defendant corporation in the Normal Music Course as a publishing property, estimated at $7,222.26. 3. By the loss of profits, January 1 to September 1, 1894, due to falling off in sales, estimated at $3,232.72. 4. By the extra expense to the defendant corporation incurred during the period prior to September 1, 1894, while the plaintiff was preparing, printing, and publishing his new publication, on account of the efforts of employees to counteract the damaging effects due to the plaintiff’s actions and rumors thereof, estimated at $6,206.09. 5. By the extra expense in the employment of a special expert from February 1, 1891, to September 1, 1893, necessitated in order to protect the interest of the defendant corporation in the Normal Music Course from the doings of the plaintiff during that period, in preparing, printing, and publishing a new edition, estimated at $6,192.66. 6. By the expense incurred in maintaining summer schools in 1892, 1893, and 1894, for the same-purpose, estimated at $3,327.56. 7. A further sum of $2,000' was claimed under article two of the “ Holt-Silver contract.”</p> <p>Evidence bearing upon the second, third, fourth, fifth, and! sixth claims was admitted, and the master found as follows:</p> <p>“ 1. The defendant corporation is undoubtedly entitled to loss of profits upon the admitted sales, that is, 2,054 books and 100 charts. In estimating these profits I have adopted the rule generally accepted in ascertaining common law damages for breach of copyright; that is, the plaintiff is to account for every copy of his book and chart sold as if it had been a copy of the defendant corporation’s, and to pay the defendant corporation the profit which it would have received from the sale of so many additional copies. The total amount of profit upon the 2,054 books sold I find to be $323.50, and upon the charts sold, $539.</p> <p>“ 2. The defendant corporation is not entitled to any damages for injury to its property as publishing property. The damage claimed was the diminution in the market value of the property as publishing property upon September 1, 1894, caused by the falling off in the profits shown to have been incurred during the year 1894 prior to September 1, and claimed to have been due to the plaintiff’s action. The rights of the defendant corporation to publish under the contract ceased upon September 1, 1894. The defendant corporation had a right to publish after September 1,1894, acquired from Tufts, but the plaintiff was under no obligation to Tufts, nor liable under the contract, for any damage to his right to publish. I find, therefore, as matter of law, that there was no market value upon September 1,1894, of the right to publish under the contract, and that therefore there was no damage to the market value of the publishing rights as a piece of property. Even assuming that there was such a market value, and that it was damaged, the defendant corporation did not satisfy me that the decrease was in any way due to the actions of the plaintiff. The decrease was based upon the falling off of the sales in 1894, as compared with the average rate of increase of sales in the years preceding. In two of the preceding years the sales had decreased through no fault of the plaintiff, and for no given reason.</p> <p>“ 3. The defendant corporation is, for the reasons above given, not entitled to any loss of profits upon sales which would have been made had the same ratio of increase continued during the year 1894 as held on the average for the years preceding, during which the contract was in force.</p> <p>“ 4 and 5. The defendant corporation is not entitled to recover for extra expense during the period up to September 1, 1894, claimed to be due on account of services of regular employees, or of the special expert, in counteracting the damaging effect alleged to be due to the plaintiff's actions, and rumors thereof. As has already been found, the plaintiff was not legally responsible for such rumors; but if he had been responsible, the defendant corporation failed to satisfy me that such expense was reasonably necessary to protect its interests under the contract against any action of the plaintiff, or was a natural or probable result of any breach of the contract.</p> <p>“ 6. The defendant corporation is not entitled to expense incurred in maintaining summer schools, for the reasons above mentioned.</p> <p>“ 7. The defendant corporation is not entitled to recover the $2,000 referred to in the ‘ Holt-Silver contract.’ It was contributed by the defendant Silver as further capital; was to be ‘ secured ’ by the plaintiff, and was to be ‘ returned’ at the termination of the agreement. At the time when the contract was made, the plaintiff supposed, as appears upon the face of the con-</p> <p>tract, that he had the sole right to publish. In my opinion, the parties then contemplated that upon the termination of the contract the sole right to publish would return to the plaintiff. If this had been the result, it is apparent that the $2,000 extra capital which had been used in extending the business of publishing the series, and which to that extent had increased the value of the right to publish, would have inured to the plaintiff’s sole benefit. The sole right to publish did not return to the plaintiff. The defendant corporation, by virtue of the assignment from Tufts, continues to publish the series, and is receiving the benefit of the $2,000 extra "capital, so far as it has increased in value the right to publish jointly with the plaintiff.</p> <p>He does not therefore seem to me to be entitled to receive the $2,000.”</p> <p>The only evidence as to the number of sets of stereotype plates in the possession of the defendant corporation, and their value, used in and for the publication of the Normal Music Course, consisted of estimates of an expert who had examined the plates; and the details of these estimates were recited in the report.</p> <p>Annexed to the master’s report was a partial report of the evidence offered before him by the defendants “ upon the qnestion of recoupment of damages,” and the printed record also contained a condensed report of evidence “ relating to the validity of the notice given by the plaintiff to the defendants to terminate the Holt-Silver contract and the Holt-Tufts-Silver contract,” and “ relating to the transfer to the defendant corporation of the rights of Edgar O. Silver under said contracts,” being all the evidence “ which the parties desire to have reported.”</p> <p>The defendant Silver, among other things, testified as follows:</p> <p>“ Q. Now, by reason of the writing, printing, and publishing by Mr. Holt of his new publication prior to September 1, 1894, was your house involved in expense in the way of salaries and travelling expenses of agents or otherwise ? A. We were obliged to increase those expenses by a considerable amount.</p> <p>“ Q. What expenses are directly attributable to the action of Mr. Holt? A. In the first place, the regular agents and representatives of the house were called upon to devote a considerable amount of their time to making extra journeys, and to carrying on a large amount of extra correspondence, by reason of the fact that they came constantly in contact with the impression in the minds of customers of the house and others that Mr. Holt had begun to publish a revised and improved edition of the Normal Music Course.</p> <p>“ Q. Well, now, can you estimate the additional expenses and salaries which you were put to? A. Well, as I have figured, the extra expenses, that is, salaries and travelling expenses, etc., of Silver, Burdett, and Company during the period when Mr. Holt was preparing, printing, and publishing his new publication prior to September 1, 1894, which were incurred on account of the efforts of the regular agents and employees to counteract the effect of the impression which was spread abroad, and to protect the Normal Music Course from damage on that account, amount to — leaving out very many items which I think were actually matters of expense directly due in that way —$6,206.</p> <p>“ Q. Did you employ any special persons, or make any special efforts, outside of the ordinary business efforts which the house would make, to meet this publication of Mr. Holt; if so, whom did you employ, and what did you do ? A. In addition to the efforts of our regular agents and representatives and employees, we employed Professor Russell from February 1, 1891, to September 1,1893, I think; we also carried on summer schools for the instruction of teachers on lines similar to those which Mr. Holt was carrying on in his own classes.</p> <p>“ Q. Was Professor Russell employed and were your summer schools instituted by reason of Mr. Holt’s publication ? A. Professor Russell was employed entirely because we were told that Mr. Holt was preparing and about to publish this, and the summer schools were started for the same reason, and have been continued ever since.”</p> <p>On the question of market value, the defendant Silver put in the following evidence: “ This diagram shows the whole length of time of the duration of the contract, beginning September 1, 1886, and assuming that it terminated September 1, 1894. The first full copyright year began January 1, 1887; during that year the royalties amounted to $1,363.96, and as that figure would be exactly fifteen per cent of the net sales, assuming that the sales were made at wholesale prices, and reckoning those sales made at wholesale prices, the net sales for that year would have amounted at that rate to $9,093.06. For the next copyright year, 1888, the copyright royalty amounted to $1,274.60, a very slight falling off, and the sales, on the basis of the wholesale price, amounted to $8,497.33. For the next copyright year, 1889, the copyright royalties amounted to $2,718.66, and the sales to $18,124.60. For the next copyright year, 1890, the royalties were $3,209.55, and the sales were $21,397. For the next copyright year, 1891, the royalties were $4,529.48, and the sales were $30,196.53. For the next copyright year, 1892, the royalties show a very slight falling off, being $4,451.99, and the sales amounted to $29,679.93. For the year 1893 the royalties amounted to $7,692.57, and the sales to $51,283.80. For the year 1894, the next full copyright year, the royalties amounted to $6,580.64, and the sales amounted to $43,870.93.” The defendants filed seven exceptions to the master’s report, all of which, at the hearing before Allen, J., were overruled, except the seventh, which was sustained, and was as follows: “ The master erred in finding that the defendants were not entitled to recover the $2,000 referred to in the 6 Holt-Silver contract,’ for the reason that, having found the said sum of $2,000 had been contributed by the defendant Silver in accordance with the terms of the contract, he should have found that upon the termination of the contract the defendant was entitled to a return of the said $2,000 in accordance with the provisions of the contract.”</p> <p>A final decree was thereupon entered, adjudging as follows.</p> <p>1. That the contract made by the defendant Tufts and the plaintiff with D. Appleton and Company was cancelled by the parties, and not assigned by D. Appleton and Com pan j7; and that no other contract was made which would give to the plaintiff the exclusive right of publishing the Normal Music Course.</p> <p>2. That the contracts made between the plaintiff and the" defendant Edgar O. Silver, and between Tufts and the plaintiff, as parties of the first part, and Silver as party of the second part, were terminated on September 1, 1894, by the notice given to Silver and to Silver, Burdett and Company in July, 1892.</p> <p>3. That the plaintiff on the one hand, and the defendant Edgar 0. Silver as the assignee and equitable owner of the interest of Tufts .on the other hand, are respectively each the owner of one half of each and all of the copyrights of all the books and charts constituting the Normal Music Course, and that each half owner has an equal right of publishing under such copyrights.</p> <p>4. That the defendants and each of them are ordered to transfer, assign, and convey to the plaintiff one half of each and all of such copyrights standing in their names or in the names of either or any of them.</p> <p>5. That the publication and sale by the plaintiff to the extent which was done of his books and charts entitled “,H. E. Holt’s New and Improved Normal Course in Music,” and of charts published under the general title or as a part of “ H. E. Holt’s New and Improved Normal Course in Music,” before the termination of the contracts on September 1, 1894, was such a breach of the contracts as would be a ground of recoupment in an accounting for copyright percentages under the contracts, but not such a breach or wrong as would deprive the plaintiff of the benefit of his notice to terminate the contracts; and that the defendants are entitled to recoup the sum of $862.50, together with interest from September 1, 1894, amounting on May 1, 1896, to $86.26, namely, $948.76.</p> <p>6. That the plaintiff is entitled to recover royalties and percentages from the defendants, other than and excepting the defendant Tufts, under said contracts, with interest thereon to May 1,1896, amounting to $8,405.02. .</p> <p>7. That the plates from which the books and charts of the Normal Music Course were printed are of the value of $2,877.68, to one half of which value the plaintiff is entitled; and that the defendants other than Tufts pay to him one half of such value, namely, $1,438.84, with interest from September 1, 1894, such interest amounting, on May 1, 1896, to $143.88, making the entire sum of $1,582.72.</p> <p>8. That the seventh exception of the defendants to the report of the master be sustained, and the defendants recover of the plaintiff, under the second paragraph of the “ Holt-Silver contract,” the sum of $2,000, with interest thereon from September 1, 1894, such interest to May 1, 1896, amounting to $200, and making a total of $2,200 ; and that all the other exceptions to said report be overruled.</p> <p>9. That the defendants, excepting the defendant Tufts, pay to the plaintiff the sums hereinabove awarded him, less the recoupment and $2,000 item, to wit, the sum of $6,838.98, together with his costs of suit.</p> <p>The defendants appealed from this decree, and the plaintiff also appealed from the eighth clause thereof, to the full court.</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>New Trial — Verdict — Rule of Superior Court — Action—Contract — Instructions — Statute of Limitations.</p> <p>If a bill of exceptions does not disclose what evidence, if any, was produced at the hearing of a motion for a new trial, made upon the ground that the jury in assessing damages for the plaintiff did not adopt the rule given by the judge in his instructions, and shows that the judge ordered the verdict to be set aside unless the plaintiff would remit a certain sum, which remittitur was made, and does not disclose that the defendant requested any rulings of law or excepted to any given by the judge, the exception alleged on the ground that he was entitled to a new trial as a matter of right will be overruled.</p> <p>Whether the 45th Rule of the Superior Court, allowing a general verdict to be amended and entered upon one of several counts, is applicable to a case where the declaration contains several counts which are good and are not for the same cause of action, quaere.</p> <p>In an action for breach of a contract to invest the plaintiff s money safely, for fraudulent representations as to the investment, and for negligence in such investment, it appeared that the plaintiff, having a less sum in the bank than the whole amount dealt with in the alleged contract, was asked by the defendant if she did not wish to invest her money, and she replied that she did and asked him to get for her some of the investments which he had described to her; that when, from time to time after this interview, he notified her that he had securities for her, she gave him bank checks, sometimes for amounts larger than the face of the securities, until the whole face amount of the securities and of the bank checks was a certain sum on a day named, and that only one of these investments was made within six years next before the date of the writ. Held, that instructions which allowed the jury to find that there was an entire contract to invest the whole sum, which was not to be completed until after the date so named, were erroneous.</p> <p>At the trial of an action for breach of a contract to invest the plaintiff’s money safely, for fraudulent representations as to the investment, and for negligence in such investment, the defence to which is the statute of limitations, if there is no evidence of any concealment of the cause of action by the defendant, except his failure to disclose from the outset certain matters which it is contended the relation in which he stood to the plaintiff made it his duty to disclose, instructions from which the jury must have understood that their finding upon this matter should be in favor of the defendant, unless they found that he had fraudulently concealed from the plaintiff Iris cause of action, are not open to objection.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, by the alleged negligence of the defendant, while transporting a horse from Boston to Springfield over the defendant’s railroad. The plaintiff’s specifications of negligence alleged “ that said train was stopped and started in so sudden and violent a manner that the plaintiff was thrown over against a certain seat in the caboose in which he was riding at the time, with great force and violence.”</p> <p>Trial in the Superior Court, before Dewey, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff testified that he was seventy years old and lived in Springfield; that in January, 1896, he had occasion to go to Boston to get a horse for one Harris : that he brought the horse to the defendant’s yard in Boston and led him into a car; that the horse was put into a house car, and he got into the car with the horse; that the train left Boston at half past eleven o’clock in the forenoon; that when the train was at a standstill about one half or two thirds of the distance between Boston and Worcester, the conductor asked him why he was riding in the car with the horse, and told him that it was too cold to ride there, and to get out and go back and get into the caboose, which he did; that the caboose had seats on each side, a stove, and a desk; that after he got into the caboose the train started; that he thought the train reached the lower end of the yard at Worcester about five o’clock in the afternoon; that he asked the rear end brakeman how near the despatcher’s office they stopped, and lie said, “Why, do you want to go in there?” and the plaintiff replied, “Yes”; that the brakeman said, “ Sometimes they stop right close to it, and sometimes down this side of it”; that the train stopped, and he got up and started to go out, when the brakeman said, “ Yoii don’t want to get out here, for we are away to the lower end of the yard, — you sit down, and they will pull us up in a few minutes ” ; that the train started soon and went a little ways and stopped, and the plaintiff started to get out, when the brakeman said, “ Sit still, I will tell you when it is time to get out ” ; that the plaintiff sat down again, and the train started and went a short distance further and then stopped, and the brakeman said, “ Here is where you want to get out ”; that the train was then at a standstill, and the plaintiff got up to go out,; that he had been sitting on the seat that runs along the side of the car some five or six feet from the rear door ; that he had got almost to the door, when there came a sudden jerk, and he was thrown off his feet and over backwards and sideways; and that he struck on the edge of the seat on the opposite side of the car, between the desk and the stove, and fell to the floor, receiving the injuries complained of.</p> <p>On cross-examination the plaintiff testified that, before the time of his injury, he had accompanied horses on railroads upon a good many occasions; that he had been over the defendant’s railroad with horses several times, and had ridden in the caboose before ; that on the occasion of his injury the train made various stops between Boston and Worcester, and at various places cars were taken off and on, and the train stopped and switched ; that he noticed a jolt on these occasions; that when the accident occurred he was walking near the middle of the caboose towards the door, without having hold of anything; and that, when he made the contract for the transportation of the horse, he paid six dollars and signed a paper, which was put in evidence and contained the following:</p> <p>“ Boston and Albany Railroad Company. Uniform Live Stock Contract. Boston Station, Jan. 4,1896. This Agreement, made this 4th day of January, 1896, by and between the Boston and Albany Railroad Company, hereinafter called the carrier, and . . . hereinafter called the shipper, Witnesseth: That the said shipper has delivered to the said carrier Live Stock of the kind and number, and consigned and destined by said shipper as follows : One (1) Horse. H. H. Harris, Springfield, Mass. . . .</p> <p>“ That whenever the person or persons accompanying said stock under this contract to take care of the same shall leave the caboose and pass over or along the cars or track of said carrier, or of connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause, and neither the said carrier, nor its connecting carriers, shall be required to stop or start their trains or caboose cars at or from the depots or platforms, or to furnish lights for the accommodation or safety of the persons accompanying said stock to take care of the same under this contract. . . .</p> <p>“ In consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract without charge, other than the sum paid or to be paid for the carriage upon said freight train of the live stock mentioned in said contract, of which live stock I am in charge, the undersigned does hereby voluntarily assume all risk of accidents or damage to his person or property, and does hereby release and discharge the said carrier or carriers from every and all claims, liabilities, and demands of every kind, nature, and description for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be caused by the negligence of the said carrier or carriers, or any of its or their employees or otherwise.” .</p> <p>At the close of the plaintiff’s evidence, the judge, at the request of the defendant, directed the jury to return a verdict forth e defendant. If, upon the evidence, the case should have been submitted to the jury, judgment was to be entered for the plaintiff in the sum of $350; if the ruling was correct, the verdict was to stand.</p>

<p>Personal Injuries—Master and Servant — Negligence — Evidence.</p> <p>At the trial of an action for personal injuries occasioned to the plaintiff while ihthe defendant’s employ' by the starting of the power by which a machine was run, while the plaintiff, who was familiar with the machine, was inside of it making an examination after a fire had been discovered in it, the evidence showed that a woman who was running the machine when the fire broke out gave the alarm by running part way to the superintendent’s desk, which was in the room, without first shifting the belt from a tight pulley to a loose pulley on the overhead shaft; that she often shifted the belt in running the machine, and was perfectly competent to do so; and that the superintendent shut off the power from the room, and then started it again without knowing the plaintiff’s position. Held, that there was no evidence that the defendant was negligent in employing an incompetent servant.</p> <p>In an action for-personal injuries occasioned to the plaintiff while in the defendant’s employ by the starting of the power by which a machine was run, while the plaintiff was examining it after a fire had been discovered in it, a question to a witness, who was running the machine at the time of the fire, whether she had ever been instructed concerning the running of it, is rightly excluded, if there is nothing to show that she needed any instructions for the proper performance of her regular duties.</p> <p>An employer is not called upon to instruct his ordinary employees in regard to their conduct in so unexpected an emergency as the discovery of a fire.</p> <p>The admissions of the general manager and treasurer of a corporation, not made in the performance of his duty as such officer, are incompetent in an action against the corporation for personal injuries received by an employee.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ by the starting of the power by which a machine was run, while the plaintiff was examining it after a fire had been discovered in it, an offer to show that turning on or shutting off the power was an act of superintendence under the employers’ liability act, St. 1887, c. 270, is rightly excluded, it appearing that, at the time of the accident, the witness called to prove it had worked in the room only one day, and did not know the defendant’s custom and method of business in this particular.</p>

<p>Contract — Fire Insurance — Insurable Interest — Evidence — Exceptions.</p> <p>The vendee of goods has an insurable interest therein, although the title remains in the vendor until delivery.</p> <p>If, after a proposal by A. to B., the latter’s silence in respect thereto and his subsequent letters and conduct warrant the inference, in an action upon the alleged contract, that he assented to the proposal, and the jury find that such is the fair import of his correspondence and acts, or that A. believed and had reason to believe that B. did assent to it, his secret intention not to do so is immaterial.</p> <p>No exception lies to the refusal to give instructions in the language requested, if they are given in substance and with a qualification which adds nothing that is injurious to the excepting party.</p>

<p>Injuries occasioned by a Dog — Evidence — Instructions—Rights of Plaintiffs when Cases are tried together.</p> <p>It is competent to prove that a dog has a habit of attacking passing teams, in support of a disputed allegation that he attacked a passing team on a particular occasion.</p> <p>At the trial together of two actions of tort, brought one by the husband and the other by his wife, to recover damages for injuries occasioned by a dog, there was evidence of admissions made by the husband, but there was no evidence that the wife was present when they were made, or that she had made such admissions herself. The judge charged the jury that both cases were dependent on one state of facts, and the principles of law applicable to one were applicable to the other, and that, the cases being tried together, the rights of the wife were dependent entirely upon the rights of the husband, and the rights of the husband were dependent upon the rights of the wife; so that if one could prevail the other could prevail. The plaintiffs’ counsel asked the judge to rule that “any admissions which the husband may have made not in the presence of his wife cannot affect her rights to maintain her action unless” they should “find such admissions were true ”; and that “ his evidence and admissions are to be treated the same as the evidence and admissions of any other witness in the case, so far as her rights are concerned.” The judge refused so to rule. Held, that the ruling requested was correct, and that the ruling given was erroneous.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for causing the death of William Green, who was the plaintiff's husband. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Green was in the employ of the defendants, and was engaged as a laborer in the construction of a tunnel at West Berlin. This tunnel was constructed through solid rock, and was a part of a series of tunnels which the defendants were building for the Metropolitan Water Board. The tunnel was reached by a shaft sunk into the earth one hundred and twenty-seven feet, and the head of the tunnel in which the accident occurred was distant about one hundred and fifty feet from the shaft. The plan of operations was to sink a shaft the requisite depth, and then start tunnels in either direction from the bottom of the shaft. These tunnels had a flat floor and an arched roof, and were constructed by first blowing out by means of dynamite the upper half of the tunnel, leaving the lower part unblasted. The top of the tunnel, including the arch first blown out, was called the heading. The lower part of the tunnel, left unblasted until a later time, was known as the bench. The men worked in the daytime drilling holes with compressed air drills, and the blasts were made at the end of the day’s work. On the day of the accident, the men, including Green, had been engaged in drilling holes for blasting into the heading. One blast had already been exploded. When a blast was exploded the men were obliged to go to the top of the shaft until after the blast. In this case, after the explosion, the men, accompanied by one Kelley, who from the evidence shown was a foreman and in superintendence of the work, so as to make him a superintendent under the employers’ liability act, returned down the shaft to the tunnel. Of the men engaged in work in the heading where the explosion occurred, only one, Thomas Foley, survived the explosion. His evidence, being the only evidence in regard to how the accident occurred, was as follows:</p> <p>“We went down right soon as he pulled the battery; the foreman hollered to get into the cage and go down. The men got into the cage and we did go down. It did not take us more than four or five minutes to go down. I was a little later than the other men in getting into the heading. The first thing that happened after I got into the heading was that Kelley told me to go and get the loading stick, and he said there was one bottom hole down in the heading on the right hand side, and I went in and got the loading stick and gave it to Perry. Kelley was there; he was standing right in the heading at the left hand side near Perry. Green was making connection with wires on the other side of the heading and in front of Kelley. I saw the dynamite placed in those holes. The hole looked as though a part of it was broken off on one side. The dynamite was put in the back part of the hole. There was a cap on the dynamite. After the dynamite was put in the holes we got orders to go after the main wire to the heading. The boss, Kelley, gave us these orders. I went after the main wire. I guess I went fifteen or twenty feet. This must have been some ten or twelve or fifteen minutes after we started down from the top. I picked up the wire and just held it in my hand and was going to make the connection with another piece of wire to this piece of main wires when the explosion occurred. I had a wire in my hand at the time the explosion occurred. I was going to put another piece of wire on to it to make it long enough to take it into the heading. It had not been connected with the main wire. Then the explosion occurred. I had got away fifteen or twenty feet from Green and Perry at the time of the explosion. It took me only as long as it would take to run that distance. Green was connecting up the wires when I saw him. As a result of the explosion Green was killed, and all except me.”</p> <p>On cross-examination, he testified: “ The gang, when they went down into the tunnel at the time ,of the accident, carried some dynamite with them in their hands. Perry was carrying some. After I got the loading stick I gave it to Perry, and then I went back to fix the wires.”</p> <p>William Knowles, called as a witness by the plaintiff, testified that he was a sewer contractor; that for fifteen or sixteen years he had used dynamite in his business; and that his work was mostly making house connections. The judge ruled that the witness was competent to testify as an expert. He was then asked: “ In your experience, what do you say, will dynamite explode from heat ? ” To which he answered: “ Well, we never had any accident. If it was heated too hot it would explode, no doubt about that, though I never have seen it explode from heat.” The rest of his evidence was to the effect that an explosion of dynamite in a hole drilled in a rock heated the rock; that it was dangerous to place dynamite in a rock which was so heated; and that, in his opinion, the second explosion was caused by the heated holes.</p> <p>The evidence as to whether or not Green was instantly killed or died without conscious suffering was as follows.</p> <p>Richard Miller, called as a witness by the plaintiff, testified that he was working in the other heading of this same tunnel; that he went down into the shaft with Green, and then went to work in the east heading; that Green and the others were working in the west heading ; and that he heard the explosion. Being asked how soon he got in there, he said, “ As soon as we could get into the cage and come up on top and see what caused the explosion.” He further testified as follows: “We took a light and went down into the shaft and into the west heading. When we got into the west heading, we found four men bio wed to the left hand side as you go in, partly covered with muck and stones. I saw Green. His leg was cut here [the witness indicating a point in the thigh, about half way above the knee] and broken, and his body was in pretty bad condition. I did not notice particularly whether he was breathing or not. I could not tell whether there were any signs of life. After we got to the top I saw Green. His leg was all torn to pieces. I did not examine him to see how he was, but I just merely looked at him. He did not seem to be very much hurt about the head. His body appeared to be cut up by stones.”</p> <p>Henry Stanton, called as a witness by the plaintiff, testified that he was at work at the time of the accident for the defendants ; that he knew Green and was one of the men who took him out; that he found Green lying on the left hand side covered with muck, meaning by muck stone and dirt; that he helped to carry him out; that he found his leg broken, and he was badly bruised about his body; that his face was not torn much; that he did not take any notice of his breathing; and that he did not hear him speak.</p> <p>Lemuel F. Woodward, a physician, called as a witness by the plaintiff, was asked the following hypothetical question : “ Suppose a man was found in a tunnel one hundred and twenty-seven feet underground, inside of ten or fifteen minutes after an explosion, covered with muck, which means stone and dirt and the débris after the explosion, that both his legs were broken, or, as one witness has put it, were shattered, cut in two places; some mentioned it, and, as one witness says, his body was full of holes, and another says badly bruised, and that there was no evidence that the man breathed or that he spoke, whether or not in your opinion the man died without conscious suffering.” The witness answered that he should say that he died without conscious suffering. On cross-examination, he stated that his reason for giving this opinion was not so much the amount of muck that was on his body, but the force of the explosion; that the fact that Green was covered with muck and his body and legs shattered showed the force of the explosion; that he assumed that the man was killed by the force of the explosion; that he could not say he did not live, but that there was no conscious suffering; and that this man was evidently killed outright, and the others were injured and died.</p> <p>Frederick H. Baker, a physician, called as a witness by the defendants, was asked the following hypothetical question: “ Assuming that a man in a tunnel one hundred and twenty-seven feet underground is subjected to a blast of dynamite of great strength and force, that he is blown to one side of the tunnel, and that he is covered with muck which is rock blown out by the blast, that his body is badly bruised and that one or both legs are broken or shattered, as termed by one of the witnesses, that his head is not particularly bruised and that he is found ten or fifteen minutes after the explosion, and for the purpose of this question, assume he was not breathing, and life was extinct, can you say, what do you say as an expert whether or not he lived and consciously suffered during that ten or fifteen minutes?” To this he answered, “I cannot say whether he did or did not. It is possible he suffered, and it is possible he was killed outright.” He was then asked, “ Is it any more possible he was killed outright than that he would suffer ? ” and answered, “ I do not see how that question can be settled positively. It is perfectly possible he suffered during that ten or fifteen minutes.” And, on cross-examination, he said it was perfectly possible that he died instantly.</p> <p>Warren E. Gilman, a practising physician, was asked the following hypothetical question : “ Assume that a man in a tunnel one hundred and twenty-seven feet underground is subjected to an explosion of dynamite of great force, and that he is thrown to one side of the tunnel, and a quantity of muck or loose stone is thrown on him, and he is found ten or fifteen minutes after the accident, and that at that time he is found with this muck, upon him, that one of his legs is broken or badly shattered, that his body is badly bruised, that, as one witness puts it, stone is blown into his body to some extent, and that he is not particularly injured about the head. Assume that state of facts and whether you would say as a medical expert that man suffered consciously or not during the ten or fifteen minutes before.” He answered as follows: “I think it is impossible to say whether he suffered or whether he did not suffer.” On cross-examination, being asked if it was quite possible that an explosion of that kind would cause or deprive him immediately of his senses and his consciousness, and that he would lie there without knowing anything for those fifteen minutes, he answered that it was possible. Being asked whether or not on the hypothetical question asked in the cross-examination it was not quite probable that the man did not suffer at all, he said, “ I cannot say that.”</p> <p>James McAtee, called as a witness by the defendant, testified that at the time of the explosion he was in the other heading, about forty feet from the shaft; that their lights were put out by the explosion; that they went on top, that is, up the shaft, and relighted their lamps; and that they then went down into the heading where the explosion occurred. He further testified as follows : “ I saw Green when he was taken out. He was lying on the left hand side of the tunnel, partly covered up by muck. He was breathing. We took him on top, and laid him out on a pile of lumber. I should say that he lived about twenty minutes. He groaned very plainly, but he did not speak. He seemed to be suffering. It seemed as though he wanted something, and could not make us understand what he did want.” On cross-examination, he testified that one of Green’s legs, he did not remember which, was almost cut off and only hanging; that the other appeared to be all right; that his body must have been cut up, as his clothing was torn off; that it appeared as if stones had been driven into his body; that if holes were hot, water should be poured into the holes; and that dynamite is likely to explode from hot holes.</p> <p>James F. Maher, called as a witness by the defendant, testified that, at the time of the accident, he drove the ambulance for the town of Clinton, and went to the shaft and saw Green there ; that it might have been half an hour after the accident; and that he did not get off the seat of his ambulance, but he knew “he was alive and groaning.” On cross-examination, he testified that he could hear him breathing, but did not hear him say anything ; and that he took him to an undertaker’s rooms, and he died on the way.</p> <p>At the conclusion of the evidence, the defendants asked the judge to rule that, on all the evidence, the plaintiff was not entitled to recover; but the judge refused so to rule.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>Equity—Injunction—Boundary—Decree for Removal of Parts of Building — Damages — Laches —. Remedy at Law.</p> <p>If B. constructs a wooden building with a cornice, which at the front corner of the building projects over A.’s land a distance of eighteen inches, some of the window sills also slightly projecting, and B. is under no mistake in regard to the boundary line, except as to whether the line at one end runs to the centre or to one side of a monument about four inches wide, and if when B. is putting in the foundation stones, A. calls his attention to his duty by telling him that he thinks the wall is over the line, A., having brought a bill in equity and given notice'of its filing to B. before the house is completed, is entitled to an injunction against the maintenance of any part of the building over his land; and it is immaterial that A.’s land is used as a driveway, and that he has not suffered any actual damage in the use of his property; and the case shows no such laches as to deprive him of his remedy.</p> <p>Where it was held that A. was entitled to an injunction against the maintenance of any part of B.’s wooden building over A/s land, the court said, in view of the fact that the encroachment of B.’s foundation wall upon A.’s land was unintentional and very slight, that B. when he discovered it after the building was nearly completed, “ offered to pay A. any sum he might claim,” and A. refused to accept anything but removal, and in view of the further fact that the judge found that no appreciable damage resulted to A., while the removal of the projecting portions of the foundation stones might be difficult and expensive, that equity did not require it to order an injunction on this part of the case, and that A. was left to his remedy at law.</p>

<p>Petition, under St. 1890, c. 428, by the Selectmen of the town of Westborough and the Directors of the Boston and Albany Railroad Company, for the abolition of certain grade crossings in said town. Hearing in the Superior Court, before Richardson, J., who reported the case for the determination of this court. The facts appear in the opinion, and in a note of the reporter thereto.</p>

<p>Bond— Treasurer of Savings Bank — Approval by Trustees — Action — Defence — Delivery and Acceptance.</p> <p>The treasurer of a savings bank was also treasurer of a town and the proprietor of a store, in the rear room of which was the office of the bank. In the front room was a desk at which lie was accustomed to do business of the bank and of the town, as well as of himself. He embezzled moneys of the bank and absconded, and afterwards a bond, properly executed nearly five years previously, given to secure the faithful performance of his duties as treasurer of the bank, was found with other papers behind the desk on a shelf where he often put papers and books belonging to the bank, as well as others. The shelf was not intended as a permanent place of deposit for valuable papers, but was ordinarily used as a place where articles were left temporarily. In an action by the receiver of the bank on the bond, the treasurer testified that he left the bond on the shelf soon after it was executed, that it passed out of his memory, and that it remained there until it was found after he had absconded. Held, that the evidence warranted a finding that the bond was delivered so as to take effect as a binding contract.</p> <p>A bond of the treasurer of a savings bank may become binding without a formal vote of approval by the trustees of the bank.</p> <p>It is no defence to an action on a bond given by the treasurer of a savings bank, that an attested copy of the bond sent to the commissioners of savings banks was not accompanied by a certificate of the custodian of the bond that the original was in his possession, as required by St. 1889, c. 180.</p> <p>A bond, properly executed, given to secure the faithful performance of the duties of the treasurer of a savings bank, and dated one day before the expiration of five years from the time when a statute took effect requiring such treasurers to give a new bond as often as once in five years, remained in the hands of the treasurer for nearly five years after he returned a copy of it to the commissioners of savings banks, as required by statute, and two of the trustees of the bank signed it as sureties.. In an action on the bond, some of the trustees testified that the bond was not presented for approval at any meeting at which they were present; and there was evidence indicating that the memory of some of the witnesses was imperfect and unreliable. Held, that there was circumstantial evidence proper for the consideration of the jury tending to show that the bond was to the satisfaction of the trustees.</p> <p>If a bond, properly executed, given to secure the faithful performance of the duties of the treasurer of a savings bank, remains in his custody for nearly five years, and is found after he has absconded in the place where he kept it with other papers, by the receiver of the bank, although there has been no formal approval of the bond by the trustees of the bank, the bringing of an action on the bond by the receiver is a ratification, if ratification is necessary, of the act of the treasurer in accepting and holding the bond after delivery which may give it effect as a binding contract, there being no evidence that his action was ever objected to by the corporation, or by any member of the board of trustees.</p>

Tort, for personal injuries, occasioned to the plaintiff by an alleged defect in a highway in the defendant town. Trial in the Superior Court, without a jury, before Hardy, J., who allowed a bill of exceptions, in substance as follows.

<p>Contract, by the beneficiary named in a policy of life insurance issued by the defendant company on January 4, 1884, upon the life of William M. Hyland. The case was submitted to the Superior Court, and, after judgment for the defendant by Gaskill, J., to this court, on appeal, upon agreed facts, the nature of which appears in the opinion.</p>

Tort, for alleged libels, contained in two articles printed on July 3 and October 22, 1896, respectively, in a newspaper owned and published by the defendant in Clinton. The declaration, as amended, contained four counts, numbered sixth, seventh, eighth, and ninth. The defendant demurred to the declaration, assigning various grounds of demurrer.

<p>Defective Highway — Statute — Exceptions — Rule of Court.</p> <p>Under St. 1896, c. 540, entitled “An Act relative to injuries received on highways resulting from snow or ice,” a public way is not to be deemed unsafe by reason of snow or ice thereon, if it would be reasonably safe and convenient for travellers but for the presence of snow or ice thereon.</p> <p>If it appears to have been well understood on all hands that one of the parties to an action wished to have the construction of a statute determined by this court, in case the ruling of the presiding justice should be adverse to his contention, it is right to allow his exception, even though no statement was made in express terms that an exception was taken.</p>

<p>Contract, upon two drafts discounted by the plaintiff. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the defendants; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Will — “In Equal Shares by Right of Representation'” — Per Stirpes.</p> <p>Where little aid was to be derived from other parts of the will, the court said that the words “ in equal shares by right of representation ” must be construed to mean in equal shares, taking the bequest per stirpes.</p>

<p>Deed—Fraud — Sale on Execution — Valid Title.</p> <p>Where a wife’s possibly fraudulent title obtained from her husband has been devested by a sale on execution, in an action against her husband, to one who conveys the land to the wife, the title which she thus acquires, and which she conveys by mortgage and again obtains by foreclosure, is not a fraudulent but a valid title, and a writ of entry by a creditor of her husband, who has attached all the husband’s interest in the land after the foreclosure and purchased the same at the sale on execution, will not lie against the wife.</p>

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

Tobt, for personal injuries occasioned to the plaintiff while in the defendant’s employ. The declaration was under the employers’ liability act, St. 1887, c. 270. Trial in the Superior Court, before Sheldon, J., who allowed a bill of exceptions, in substance-as follows.

Information, in the nature of a quo warranto, filed July 13, 1897, by the Attorney General, to try the title to membership in the Democratic City Committee of the city of Boston. Hearing before Lathrop, J., who reserved the case upon the information, answer, and an agreed statement of facts, for the consideration of the full court. The facts appear in the opinion.

Two actions OF contract, upon judgments rendered by the District Court of the Third Judicial District of Nebraska, in actions on certificates of membership issued by the defendants respectively to John C. McMahon, and payable in case of death to the plaintiff. The cases were tried together in the Superior Court, without a jury, before Graskill, J., who found for the plaintiff in each case; and the defendants alleged exceptions. The facts appear in the opinion.

<p>Tort, for personal injuries received by the plaintiff while in the defendant’s employ. The declaration contained three counts; the first at common law, for negligently putting the plaintiff to work in an unsafe place; and the second and third counts, under the employers’ liability act, St. 1887, c. 270, alleging a defect in the ways, works, or machinery of the defendant, and the negligence of a person in the defendant’s service, intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence.</p> <p>Trial in the Superior Court, before Dewey, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff was an experienced carpenter, and had been employed by the defendant for several months prior to the accident, which happened on November 12, 1895. The defendant had a contract to do the carpentry upon an addition to the Lyman Mills in Holyoke, under one Dodge, who was the general contractor; and one Prew had the contract for concreting the basement of the building. About six or eight weeks before the accident, Prew cut a hole through the covering of the first floor of the building, near the centre of the floor, for the purpose of getting through the materials for the concreting of the cellar. The cutting of this hole was authorized by Dodge. At about seven o’clock on the night of the accident, the defendant’s superintendent told the plaintiff and another workman that it was necessary to put in some windows on the first floor, and they proceeded down stairs from the floor above, the superintendent leading the way with a lighted lantern. Upon reaching the lower floor the superintendent was called away, and left "his lantern there. The plaintiff then started to go across the floor and get the window sashes to put in place, and fell through the hole, sustaining the injuries complained of. The plaintiff testified that the superintendent told him to “ go and get the windows ” ; that it was rather dark there; and that he did not know of the existence of the hole. The defendant and his superintendent each testified that they knew that the hole was in the floor for several weeks before the accident; and the latter also testified that, during that time, he had sometimes seen the plaintiff around the hole.</p> <p>At the close of the evidence, the judge, at the defendant’s request, directed the jury to return a verdict for the defendant.</p> <p>If the case should have been submitted to the jury, it was to stand for trial; if the ruling was correct, judgment was to be ■ entered on the verdict.</p>

<p>Personal Injuries — Employers’ Liability Act — Master and Servant — Negligence— Due Care — Assumption of Risk — Law and Fact — Damages.</p> <p>In an action for personal injuries sustained by the plaintiff, while in the defendant’s employ, by an elevator coming down upon him while he was picking up some papers which had been spilled from an upper story of the building on the bottom of the elevator well, if the defendant’s superintendent sent the plaintiff there to do this work, and promised to look out for him while he was so engaged, the plaintiff is entitled to go to the jury upon the questions of negligence on the part of the superintendent, of due care on his own part, and of his assumption of the risk.</p> <p>In an action for personal injuries sustained by the plaintiff, while in the defendant’s employ, by an elevator coming down upon him while he was picking up some' papers which had been spilled from an upper story of the building on the boty tom of the elevator well, there was some evidence tending to show that the plaintiff had been responsible for the upsetting of the paper; that the defendant’s superintendent came to the place where this had happened, and saw the plaintiff and others at work picking up paper; that his purpose was to have the entire matter remedied before lie went away; that lie knew that some of the paper had been spilled down the elevator well, and that the plaintiff was the person who had spilled it; that he knew that somebody would have to go down stairs and pick up the paper in the well; that he saw the plaintiff go off; lhat the plaintiff went down stairs and began to pick up the paper in the well; and that after some minutes, and before the superintendent himself went down stairs, the elevator was lowered and came down upon the plaintiff while lie was at work there. Held, that there was sufficient evidence to entitle the plaintiff to go to the jury upon the question of the superintendent’s negligence.</p> <p>Although there is no distinct proof, in an action for personal injuries, of the amount of the expenses of the plaintiff’s sickness or medical attendance, if it appears that a physician treated him eight times at the plaintiff’s house and eleven times at his own office, an allowance by the jury of forty dollars is reasonable.</p>

Tort, to recover damages for the death of a horse, caused by an alleged defect in a highway in the defendant town.

<p>Contract, in five counts. The first count alleged an agreement by the defendant not to interfere with the plaintiffs’ sale of oil in Worcester and its vicinity, by itself selling certain brands named within the same territory, from tank wagons or otherwise, to retailers and consumers of the defendant’s oil. The second count alleged an agreement by the defendant to sell the plaintiffs all kinds of refined oils at such a price as to make the price to the plaintiffs one fourth of a cent per gallon less than the price at which it should sell the same quality of oil to E. T. Smith and Company, the plaintiffs’ competitor. The third count alleged an agreement by the defendant not to interfere with the plaintiffs’ trade, nor sell nor offer for sale refined oils to persons or corporations who were customers of the plaintiffs. The fourth count alleged an agreement by the defendant to pay the plaintiffs one fourth of a cent per gallon for all oil which the defendant should sell to any of the customers of the plaintiffs. The fifth count alleged an agreement by the defendant not to interfere in any manner with the plaintiffs’ trade in connection with a certain brand of oil, nor to sell or offer for sale this particular brand to any of the plaintiffs’ customers, so long as the plaintiffs continued to sell such brand. The considerations stated in the several counts were substantially that the plaintiffs would purchase all their kerosene or refined oil-, or purchase exclusively oil of the defendant, and sell their customers only oil purchased of the defendant. All the counts alleged breaches by failure to perform the respective agreements.</p> <p>Trial in the Superior Court, before Hopkins, J., who reported the case for the determination of this court, in substance as follows.</p> <p>Joseph R. Marble, called as a witness by the plaintiffs, testified that he was a member of the firm of Jerome Marble and Company, and a plaintiff in this case; that he entered the firm as a partner in 1886; that he was a salesman for the firm on the road in 1884; and that at that time the sales business of the firm in the petroleum line covered every town or station, and some towns two miles from the stations, on the Boston and Albany Railroad east from Worcester as far as Newton, and went as far as Woonsocket, Rhode Island, including that, city, on the Providence and Worcester Railroad; as far as Danielsonville, Connecticut, on the Norwich and Worcester Railroad; as far west as Adams on the Boston and Albany Railroad and its branch, leaving out Springfield; on the Ware River Railroad up to and including Winchendon; on the Athol branch of the Boston and Albany Railroad up to and including Athol; and including also all towns between Worcester and Fitchburg and between Worcester and Ayer on the Worcester and Nashua Railroad, and taking in Shrewsbury and Leicester and other towns not reached by railroads.</p> <p>The examination of the witness was then continued as follows:</p> <p>“ Q. Do you know who was the representative in fact of the Standard Oil Company in New England — in Massachusetts or Rhode Island — at the time I mention ? A. I do. — Q. Who was that person? A. George B. Burton.— Q. Of where? A. Of Providence. — Q. Did you have any conversation at or about the time I allude to, and either before or after you were a member of the firm, with Mr. Burton, with regard to furnishing oil to Jerome Marble and Company? A. I did.”</p> <p>The witness further testified that the conversation was in the latter part of 1884, — he could not state accurately, — at the office of the defendant in Providence, Burton’s office; that he had known him as a representative in fact of the defendant during 1884 and up to the time of his withdrawal, which was 'before the commencement of this action ; and that he had known Burton in that position from 1884 to 1892, to the best of his knowledge and belief.</p> <p>The witness was then further interrogated as to this and other conversations with Burton, and he testified as follows: “ He said, ‘ This is a nice arrangement for your people; you must be very careful to keep the matter of the price quiet; E. T. Smith and Company must not understand that we sell you at less price.’ I said, ‘Is the oil as good as that made by Luke, Holmes, and Adams? Will it stand 100 flash test? ’ He said, ‘ What do you want to know for ? 110 fire test is perfectly good.’ I said, ‘ Our city inspector, Mr. Brophy, is very particular, and insists on 100 flash test.’ Soon after this, within three months, I had another conversation at Providence. Burton said, ‘ How are things working in Worcester? ’ I replied, ‘Fairly well; the great thing is to keep the quality of the oil right.’ He said, ‘ The Standard Oil Company can make oil as well as any one. We have arranged about the 100 dash test. Brophy is too particular; be very careful not to say a word about the quarter of a cent a gallon that you have over E. T. Smith and Company. It would not do at all if that got out.’ ”</p> <p>The witness also testified that subsequently he had talks with Burton frequently at his office, occasionally at Worcester, frequently on the cars, and once or twice in Boston; and continued as follows: “ In 1887 I had a conversation with Burton in his office in Providence. I said, ‘ Mr. Burton, the price at which we are buying oil of you does not allow us to hold our trade in Athol. If it were not for this agreement with you by which we are to buy all our oil of you, we could buy oil of other parties and hold our trade in Athol.’ He said, 1 Under the agreement, you cannot buy oil of other parties; our arrangement is that you shall buy all the oil of us. We have all your trade, and we will protect you in your trade. Now, Athol is rather out of your territory; the Springfield people want that trade; you had better let them have it, holding your trade in Worcester under our agreement, by which you buy all your oil of us, and we will protect you in your trade, because we are also selling under the agreement one quarter of a cent less than E. T. Smith and Company;' and, by the way, don’t let that fact get out.’ I replied that if that was the case we would yield the Athol territory. We did cease doing business there, we dropped out of Athol, which in itself was a large trade, taking several car loads per month. About the same time we had another conversation about the trade in the vicinity of Danielsonville, Connecticut. I said we ought to have a price low enough to hold that trade, and Burton said, ‘The Standard Oil Company want Lee and Osgood to have that trade; we can get into Norwich by water more advantageously than we can by rail through Worcester.’ I said that it was very hard for us to give up that trade, to give up any of our territory or trade, that it had cost us a great deal of time, money, and trouble to establish it. He replied, 6 The tendency of trade is to localize. Under our agreement, by which you buy all your oil of us, and under which we give you a lower price than is given to E. T„ Smith and Company, you are making more money, and will make more money in Worcester than if you try to fight Lee and Osgood in this territory.’ I said, ‘ All right. We want to work in harmony with you as agreed upon.’</p> <p>“ I had a conversation with Burton in Boston, in the Boston and Albany Railroad station, in January or February, 1890, possibly in December, 1889, with reference to the sale of naphtha to the Worcester Gas Light Company. I said, ‘ You are not using us right to let the Maverick Oil Company take the trade of the Worcester Gas Light Company from us; we have worked it up, and held it at a small profit, reasonably expecting that you would continue to let us have it.’ He said, ‘ That is all right; you’ve had it and you’ve made money on it. I do not do m uch with the naphtha business. You must not be too grasping. We are holding to the understanding arrived at with Mr. Drury and with you about the oil trade, and the Maverick Oil Works will have to have that business.’ I said I thought it was not the right kind of treatment, but we should have to acquiesce. The last of the year 1889 in Providence I had a talk with Burton. I said, ‘ You are shipping us wretched oil into Clinton. We have no end of trouble with the water white oil.’ He said, 6 Well, the Standard Oil Company can make and will make the best water white oil on earth; we have had a little trouble; that oil is too heavy; you make the best settlement you can; you won’t have to allow them very much.’ I said, ‘ We could buy a great deal better oil of other people except for our arrangement with them.’ Burton said, ‘ The Standard Oil Company will make oil as good as anybody, and the arrangement with us and you shall be to your benefit.’ I said, ‘ I ’ll go back and make the best arrangement I can with the trade in Clinton.’ I had conversations with Burton averaging once in three months.”</p> <p>The witness further testified as follows : “ During any of the times mentioned the Standard Oil Company had no office or tank for doing business in Worcester. They established a place of business of that character in Worcester in 1891. Up to that time we bought our oil of them.”</p> <p>The examination of the witness was continued as follows: “ Q- In any of the conversations you had with Burton at any time since 1884, was there anything said definitely about their selling oil ? A. There was. — Q. Give the conversation. A. I said, ‘ Mr. Burton, a man in Fitchburg has built a tank station.’ — Q. Did you mention the man’s name? A. 1 Mr. Gross of Fitch-burg has built a tank station on the line of the Fitchburg Railroad tracks in Fitchburg. I think that would be a very good thing for us.’ Burton said, ‘Don’t you do it; it is the most expensive way of handling oil; we never did it except as a last ■resort; the Standard Oil Company have built one in Nashua, and they wish they had not built it; you don’t need it; your arrangement with us protects you now; you are handling your oil cheaper than you could if you put up a tank station; we never should build one in Worcester except as a last resort.’ I said, ‘Very well.’— Q. When was that? A. In 1886, as I remember it. — Q. Is that all that you can recollect that was ever said in any conversation with Burton touching their selling in Worcester? A. No. I said, ‘You are building a tank station in Springfield?’ — Q. When was that ? A. I cannot fix the date; 'it was after the Fitchburg conversation. I should say within a year. I said, ‘ You are building a tank station in Springfield ? ’ He said, ‘ Yes; things are all mixed up there ; we are going to have that trade.’ I said, ‘ You won’t encroach upon our territory?’ Burton said, ‘No; the trade is being handled well in Worcester; we never expect to build a tank station there.’”</p> <p>The witness was asked the following question : “ I will renew my question regarding the establishment of sales from tank wagons in Worcester. At any time since their establishment of a tank here in 1891, has the Standard Oil Company put road wagons on the road in Worcester ? ” This question was objected to. The judge excluded it; and the plaintiffs excepted.</p> <p>The judge directed the jury to return a verdict for the defendant. If the direction was right, judgment was to be entered upon the verdict; otherwise, the verdict was to be set aside and a new trial ordered.</p>

Trustee process. Writ dated July 9,1895. The principal defendants were James E. Gilman and Frederick N. Cheney; and Hamilton Mayo, as executor of the will of Asula P. Goddard, was named as trustee. Judgment by default was entered against Cheney, and on July 10,1895, Mayo indorsed his acceptance of service on the writ, and filed an answer.

<p>Tort, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by having his hand caught in a machine. The declaration contained three counts, the first two at common law, and the third under the employers’ liability act, St. 1887, c. 270. Trial in the Superior Court, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The machine on which the plaintiff was injured was called a duster or feeder, and was a device connected with a picker, consisting of an apron which carried wool laid upon it up to and under a roller, whence it was carried into the beater of the picker. The apron travelled over and under two horizontal rolls, and was made of strips of wood about one and a half inches wide, presenting about two and a half feet of upper surface as it rolled, and was about two and a half feet long and about one and a half feet wide, and was moved by belting and gearing, which also moved the roller. The apron moved between two cast-iron sides, which served to keep the wool upon it, and was so placed that it ascended as it approached the roller. The roller was about the same length as the width of the apron, made of wood, about six inches in diameter, and with teeth or prongs of iron projecting all over it, about an inch and a half above the surface of. the roller. These teeth were designed to pull the wool in, and carry it into the beater of the picker.</p> <p>The plaintiff, while spreading wool upon the apron, had his left hand caught by the projecting prongs of the roller, and his arm drawn into the beater, and he received the injuries complained of.</p> <p>The plaintiff testified that he was fifteen years and about eight months old at the time of the accident; that he had never worked in a factory or on any kind of a machine before; that he went to work on the afternoon of July 15, 1895; that one Mort, who was the boss of the carding room, took him to the machine and told him to take the wool from bags and put it on the apron, and keep the apron full and spread it all over; that Mort opened the doors under the picker, and told him how to take the dust from under the, machine and throw it out of doors everyday; that Mort put a little wool on the apron and ran it through; that he filled it half full and ran it through; that then the plaintiff did the same; that there was half a bag full of wool there at the time; that what was in the bag at the time would fill the apron about half full; that when Mort told him how to fill the apron and run it through, he said, Look out for the roll ”; that the plaintiff said, “ All right ”; that when the wool was run through the beater he was told to take it, put it in bags and drop it out of the window, and then take it to the store room; that Mort was not in the room over fifteen or twenty minutes; that after that Mort took him to the carding room, where there was a large picker, and told him that at five o’clock in the afternoon he was to run what waste there was through and take it up into the dusting room, then in the morning he was to mix it with the wool and run it through the duster; that in the morning he was to. collect all the wool waste in the carding room, which wbuld be five or six bags full, take it to the dusting room and run it through the duster; that one Delaney, a boy who had worked on the machine, was with him.when Mort was there, and stayed about fifteen or twenty minutes; that Delaney used to run up to see how he was getting along, and stayed five or ten minutes, during the next three days when he worked on the machine; that otherwise he worked alone in the room on the machine; that he worked three days running through the amount of wool that was to be run through, both in the afternoon and in the forenoon; that the machine was stopped by a lever that threw a belt off a pulley; that this lever was on the left hand as he faced toward the machine; that he was told that by kicking a belt off on the opposite side of the machine, and on the right hand as he faced the machine, the duster could be stopped separately from the picker; that the lever would stop the whole machine; that the roller on the duster moved slow; that he went to work on the fourth day, taking the wool waste from the carding room, and putting it through the duster, as he had done on the previous days; that while he was putting the wool through and spreading it over the duster, the accident happened; that the beater of the machine was covered with a hood, and revolved with great rapidity; and that the roller of the duster was uncovered.</p> <p>On cross-examination, the plaintiff testified that he could stand in front of the machine at the end of the apron; that he ■\yas told to stand at the corner, and was standing there at the time of the accident; that he was told that if the wool got lumps in it to let it go; that the day before he was hurt he stopped the machine and went to get some wool, and then tried to start the machine, and it would not go, and he called one Dinsdale and Delaney, who fixed it; that Delaney was there when Mort was there, and showed him how to put the wool in the same as Mort did, but Delaney did not run it the first day; that Delaney told him what Mort told him, if it ever got the wool caught to kick the band off; that Delaney did not tell him to put his hand up by the teeth, he told him to keep the apron full of wool and spread it all over all the time; that Delaney came up two or three times and looked on, and went out; that this was the first work he had ever done; that he had been in school up to the time he went to work; that he was studious and stood well in his class; that he got caught by spreading the wool all over; that he reached the bar which stopped the machine, but never thought of kicking the belt off; and that there were no-other instructions given to him, and nothing else said about the machine to him.</p> <p>The defendant called as a witness Alfred Thomas, who testified that he was a partner with the defendant, and that they owned and ran the mill as a partnership, and employed the plaintiff at the time of the accident; that he saw the machine directly after the accident; and that it was in good order.</p> <p>The defendant also called Mort as a witness, who testified that he told the plaintiff to stand in front of the machine, and if. there were any lumps to let them go and take no notice; to take another piece, not to spread it all over, but to lay it on at the lower end of the apron, and .that he was never to stand at the side of the machine ; that there was nobody there with him at the time but the plaintiff; and that he told him to keep out of danger.</p> <p>On cross-examination, Mort testified that he had suffered an injury since the accident, and had lost his memory, and finally said that he could not swear to anything that he told the plaintiff about the machine, and all he remembered was that he took him to the machine and showed him the same, but that he could not testify as to what he said to him.</p> <p>George Layng, called as a witness by the defendant, testified that he built machines similar to this, but did not build this machine nor any of the same make; that he saw it three or four days after the accident, and it was then in perfect condition; and that a guard could not be put on there so as to have sufficient material pass through to do the work.</p> <p>On cross-examination, he testified that a guard might be put: four inches above the iron sides, but he thought it would be o£ no account; that there would be no difficulty in having an irom guard a few inches away from the roll, and even a guard might be put within two inches of the roll; and that, if put high-, enough to allow the wool to pass under, it would not interfere with the working of the machine.</p> <p>William Delaney testified, for the defendant, that he had a talk with the plaintiff the day he came; that* he went to the machine with him; that there was no one with them at first; that Mort came up afterwards; that he showed the plaintiff where to put the waste, to place it in front of the machine, and take his wool and put it on the apron at the lower end, to bold it on until it got to travelling, and to keep the apron full; that he told him to take the dirt out from under the machine, and to put the sheet in behind the beater for the wool to come out on ; that if anything happened, to stop the machine and go down stairs and let him know; that Mort came up and told the plaintiff to do just as Delaney had said and he would be all right; that he could not say that he saw Mort near the machine; that he himself handled the machine for the plaintiff five minutes; then the plaintiff did the same that he did; that he stayed an hour and a half and watched him; and that the plaintiff did it properly. The witness showed the jury where he told the plaintiff to stand, and in doing so placed himself at the corner of the machine with his left hand towards the roller and facing towards the apron, but not facing directly towards the roller, placing himself in substantially the position that the plaintiff testified he was in when the accident happened.</p> <p>On cross-examination, he testified that he told the plaintiff, if anything happened, to kick the belt off; that sometimes too much wool might get in and it would stop, and then he was to kick the belt off, if he could get to it; that he might not be able to get to that side of the machine; that he told the plaintiff to put the wool on all over, and no higher on one side than on the other; that that was what he showed him; and that he should tell anybody whom he instructed to do it to put it even all over.</p> <p>The defendant called as a witness one Campbell, who testified that he asked the plaintiff how the accident happened, and he said that he was pushing in wool.</p> <p>The plaintiff, in rebuttal, testified that he did not tell Campbell that he was pushing in wool; and that Delaney was in the room on the first day not more than fifteen minutes in all.</p> <p>The judge, at the defendant’s request, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort, for personal injuries received by the plaintiff, while in the defendants’ employ. The declaration contained three counts, the first and third at common law, alleging negligence of the defendants, and the second under the employers’ liability act, St. 1887, c. 270, alleging negligence of a person in the defendants’ service, intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence.</p> <p>Trial in the Superior Court, before Gaslcill, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendants were contractors engaged in building an underground conduit in the construction of the Metropolitan Waterworks at Berlin. The shaft at “shaft No. 2 ” had reached the level of the conduit, which consisted at that point of a tunnel running each way from the shaft. It was in this tunnel that the plaintiff was injured by an explosion of dynamite on August 10,1896, which was Monday.</p> <p>The plaintiff testified that he was taken into the employ of the defendants in April, 1896, by one McAttee, who hired him for drilling; that he worked there up to the time of the accident; that on the day of the accident he was drilling on the bench, which is that part of the shaft below the heading; that McAttee did not do anything but give orders; and that McAttee was there on the day when he was hurt and put him to ■work ; and further testified as follows : “ When he came up I was standing on the bench with a lamp in my hand, and he told me, ‘ Get your drill and put a hole in down here.’ That was down on the side of the bench. It was a rock at the foot of the bench like a step at the left side of the conduit or tunnel. He told me to put in a lifting hole to blast this rock or step away. That is a hole to run slanting with the ground or bottom of the tunnel. He kicked the rock and told me where to put my machine, . . . and said let her go there right into the rock. . . . After he told me which way he wanted the hole to go, he went off somewhere, having told me to put the hole in four feet. I kept drilling about fifteen or twenty minutes before it blew up. ... I knew nothing about there being any dynamite in the rock. ... I had no orders to work there except from McAttee.”</p> <p>Daniel M. Hawkins, called as a witness by the plaintiff, testified that he was engaged on the same work for the defendants, and was in the tunnel the same night in which the plaintiff was hurt; that he was helping him on the drill; that he did not see McAttee at the time, but knew that he was there seeing to the drilling; that “he told us where to drill”; that they drilled fifteen or twenty minutes before the explosion; and that McAttee directed the plaintiff and himself all the time he was drilling before the explosion occurred, and the last he saw of him was five minutes prior to the explosion.</p> <p>Thomas Scott, called as a witness by the plaintiff, testified that he was working with the plaintiff the night he was injured ; that he saw McAttee around there; that he “ was boss ”; and that he came in and told the plaintiff where he wanted him to drill.</p> <p>Luke Moore, called as a witness by the plaintiff, testified as follows: “ I worked in shaft No. 2 the Saturday before the accident at the east end all day. Five holes were drilled across the bench and loaded. When they were filled with dynamite the next thing was to put an exploder into them. . . . Then we connected the wires. I put wires into each of these five holes. . . . The second hole from the left hand rib the wires were not connected with. The wire in that hole was broken off so we could not connect it. The tamping was all on the powder when I saw that the wire in that hole was broken off. . . . McAttee went to all those holes before they were exploded. I told him those wires were pulled off so we could not connect that hole. He said, ‘ Leave it and go to the others.’ We connected the first with the third, skipping the second. After that the main wires were put on and fired the holes.”</p> <p>Robert Wells, called as a witness by the plaintiff, testified as follows: “ I worked in shaft No. 2 on Saturday before the plaintiff was hurt. . . . McAttee called me to help Moore tamp the hole. When we got to the second hole, the wire was broken. Moore told me to go and tell the foreman that a wire was broken in the hole, and we could not connect. I went and told McAttee, and he came and looked at it. Said, ‘ Let her go.’ ”</p> <p>Carey Dean testified, for the plaintiff, as follows: “ I worked in the west heading in the forenoon, and partly in the afternoon, Saturday before the accident. I went to the east -heading about a quarter of five Saturday afternoon. I walked in after Mc-Attee. When I got there he was standing up on top of the bench, six or seven feet up, and when I was standing up with an arm full of powder I saw the wire hanging out the second hole from the rib. Three holes had been exploded. . . . The second one had not stirred at all, only the wires were hanging down off the bench. I said, ‘ McAttee, this hole did not go off.’ He said, ‘ No, the wire was cut in that hole’ I said, ‘ Was the powder exploded in it? ’ He said,6 No, leave it-,’ and he stood with a stick and shoved the powder in the first hole. Then I connected the first hole and skipped the second ; then we all went up on top and exploded the blast. McAttee told me not to interfere with that hole, and I asked him particularly, as I thought he did not see it, as he was standing on top, and I said, ‘ Here is a miss-hole,’ and he said he knew it. I says, ‘ I will put an exploder in,’ and he says, ‘No, leave it go.’ ... I was cleaning the west heading when I heard the explosion. I then went to the east heading and ran to the face of the bench. . . . The drill was pointed diagonally. I do not suppose the foot of it was any farther from the rib than two feet pr three feet, and then it would run right into a hole that was left there. . . . This hole was fired twice Saturday.”</p> <p>McAttee, called as a witness for the defendants, testified: “I was foreman in shaft No. 2. ... I have known holes not connected by the powder to be fired. When a hole is not connected with the powder, it is left to the judgment of the foreman. I left that hole off and connected the other four and fired them. I went back and saw that the holes did not do the execution the}' ought to have done. I reloaded every one of those holes, and put the powder down and fired them. The miss-hole was the one where the wire broke, and I left it. I did not put the powder in that hole. After firing the second time I went home Saturday night. ... I went in there again Monday evening. ... I saw right away there was some bottom about a foot and a half all the way across the tunnel, so I had that cleaned up, and looked around to see if there were any holes that had missed. I could not find any anywhere, so I put the plaintiff and Hawkins on the left hand side of the tunnel with their machines, and Scott and Williams on the right to drill lifting holes. . . . The first thing I did when I went to work on Monday night was to look after the miss-fired holes.”</p> <p>William E. Gibbs, called as a witness by the defendants, testified that he had made a special study of and had had special experience in the use of dynamite in rock; and after the circumstances prior to the accident had been referred to, he was asked the following question: “ I suppose if the drill reached the dynamite in the rock it would explode ? ” to which he answered, “ Always, if it struck it.”</p> <p>Robert Hosley testified for the plaintiff, in rebuttal, that he worked in shaft No. 2 on the Saturday night prior to the accident ; that one Wilson was foreman that night; that they did not do any work on the bench until they had drilled the east heading above the bench; that they drilled the heading and fired it on Sunday morning; that he worked in that heading again on Monday morning; that Wilson was foreman, and was there; that when Wilson came in he walked up to the bench, and the witness told him he had missed a hole there and asked him what he was going to do about it, whether he was going to fire it or not, and he said, “ No, leave it alone and stay up in the heading ”; and that they did not blast on that bench Monday.</p> <p>The evidence in the case showed McAttee to be a superintendent, under the statute.</p> <p>At the conclusion of the evidence, the defendants asked the judge to rule that, upon all the evidence in the case, the plaintiff was not entitled to recover ; but the judge declined so to rule.</p> <p>The jury returned a verdict for the plaintiff under the second count; and. the defendants alleged exceptions.</p>

<p>Personal Injuries — Assumption of Risk — Employers’ Liability Act — “ Ways, Works, or Machinery.”</p> <p>At the trial of an action for personal injuries occasioned to an employee, it appeared that his glove got caught on a coach or set screw, when he reached in his hand, in a manner not clearly explained, to cut the wire in order to take the reel of wire from the block, and that he had worked for six weeks on the machine, and for two years previously on another machine which differed only in making fewer revolutions a minute and in having a larger diameter. There was nothing to show that the plaintiff was not of full age and average understanding. Held, that the risk was an obvious one, and that he assumed it.</p> <p>It seems, that a set screw which is not out of order, which is a common device for the purpose for which it is used, and which was put on in the usual manner, does not of itself constitute a defect in the “ ways, works, or machinery,” within the meaning of the employers’ liability act, St. 1887, o. 270.</p>

<p>Tort, for false representations. The declaration alleged that the defendants sold to the plaintiff “ a bond purporting to be a first mortgage bond, duly issued by the Jacksonville Electric Light Company, County of Duval, State of Florida, said bond being for the sum of one thousand dollars and interest, and being numbered ten; and to induce said plaintiff to buy, the said defendants falsely represented to him that said bond was good, of full value, a good investment, and secured by the machinery and real estate of the Jacksonville Electric Light Company, and of other companies, of the value of half a million dollars. And said plaintiff, believing that said representations were true, was thereby induced to purchase, and did purchase said bond, and paid therefor to the defendants the sum of one thousand and two dollars and seventy-two cents. And said bond was not good, of full value, a good investment, nor was it secured by the machinery and real estate of the value of half a million dollars of the Jacksonville Electric Light Company, or of any other companies, all of which said defendants then knew, said facts being within their means of knowledge; that said bond was and is of little or no value.”</p> <p>Afc the trial in the Superior Court, before Bishop, J., the plaintiff did not contend that the representations were intentionally fraudulent, and the defendants asked the judge to rule that the declaration would not support a verdict for the plaintiff, on the ground that the representations set out were matters of opinion. The judge so ruled, and directed a verdict for the defendants. The plaintiff alleged exceptions.</p>

<p>Case Stated — Inferences of Fact.</p> <p>If a case is submitted to the Superior Court, or to this court, on agreed facts, in- ■ ferences of fact cannot be drawn by the court.</p>

<p>Contract, against William H. M. Macomber as principal, and John G. Shaw and William F. ISTye as sureties, on a bond. In the Superior Court judgment was entered for the plaintiff in the penal sum of the bond, with interest from the date of the writ; and the sureties appealed to this court. The facts appear in the opinion.</p>

<p>Tort, for breaking and entering the plaintiff’s close in Beverly, and tearing down and carrying awaj' a fence and erecting a building thereon. Trial in the Superior Court, before Hammond, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the' opinion.</p>

<p>Tort, for the conversion of a carryall. At the trial in the Superior Court, before Sammond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.</p>

<p>Tort, in two counts. The first count alleged that the defendant, on August 18, 1895, falsely and maliciously, and without any reasonable cause, procured the plaintiff to be complained against for the alleged embezzlement of one dollar and sixty cents, the property of the defendant; and that the defendant, without any probable cause, prosecuted the complaint against the plaintiff, who on August 14 was acquitted of the charge in such complaint.</p> <p>The second count alleged that the defendant caused to be published in a newspaper called the Daily Evening Item, published in Lynn, a false and malicious libel concerning the plaintiff, a copy of which was as follows:</p> <p>“ Notice. Isaac Call has been in our employ as driver. He left Sunday, August 11, without notice. Early Monday morning he went over our route, collected our work as usual, and turned it over to the Excelsior Laundry, Albany Street, Kelley and Batchelder. He also collected money on our account. We had confidence in this man, as he was well recommended. We hope and expect that most of our customers will return, as we do not believe they would be a party to any such ‘ scoop ’ if they knew the circumstances. We understand that negotiations for this deal have been in progress for some time. The public can form their own opinion of a man who will do this, or a firm who will employ him to do it. Pay no money to Isaac Call on our account. Respectfully, The City Laundry, J. E. Hayes, Proprietor.”</p> <p>Trial in the Superior Court, before Braley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that he was twenty-six years of age, a married man, living with his wife and child in Lynn ; that he had been at work for the defendant for about a year prior to August 11, 1895; that his business was that of driving a team and collecting laundry work, and delivering the same and collecting money for the same; that about two weeks prior to August 11, he took a man by the name of Bowley on his team with him for the purpose of teaching him the route; that it was his intention to take a vacation of two weeks; that he saw the defendant on August 11, and told him that he came to get his bills, so as to fix them for Bowley the next day, and that he would go with Bowley on Monday, the following day, to help him; that the defendant said, “ I guess I won’t need you any longer that he asked the reason, and the defendant said, “ You have n’t been as good a man as I wish I had on the route ”; that he replied, “ All right, Mr. Hayes, then I shall consider myself discharged, will I not?” and the defendant replied, “ Yes”; that he said, “ All right, I would like to have a settlement ” ; that the-defendant replied that he did not make any settlements on Sundays, that Tuesday afternoon was the regular time that he had to make a settlement, and was the time" when he would settle with him, and the plaintiff said, “Very well.” ; and that the defendant said, “ I shall hold you responsible for every cent that there is on my books.”</p> <p>The plaintiff further testified, against the objection and under the exception of the defendant, as follows:</p> <p>“ Q. I want to know if on Monday you sent any communication to the defendant ? A. I did, sir, Monday noon.</p> <p>“ Q. By whom did you send it? A. By Albert Bowley.</p> <p>“ Q. What was that communication? A. I asked Mr. Bowley to ask Mr. Hayes if I could make a settlement with him Monday evening, either at his house or office, whichever was most satisfactory to him. I told Mr. Bowley to tell him the reason was that I was working for Kelley and Batchelder, and did not want to infringe on their time.”</p> <p>Bowley testified, without objection, that he communicated this language to the defendant on Monday afternoon; that the defendant replied that he would not settle with the plaintiff until Tuesday noon; and that the witness so told the plaintiff, as a reply from the defendant.</p> <p>The plaintiff further testified that he made arrangements with Kelley and Batchelder on the same Sunday, namely, August 11, to go to work for them in the same line of business that he had been engaged in before for the defendant; that he was arrested, upon the complaint referred to in the first count of the declara-tion, on Tuesday morning, August 13; and that he was discharged upon the complaint on the next day.</p> <p>The plaintiff introduced in evidence the complaint, and also the record of the Police Court of Lynn, showing that upon a hearing the plaintiff was discharged; and that the proceedings in that court were terminated before the present action was begun.</p> <p>The plaintiff testified, on cross-examination, that, about two weeks prior to August 11, he spoke to the defendant about going on a vacation, and the defendant told him that he did not want him to go; that, on Monday morning, while he was at work for Kelley and Batchelder, he collected money belonging to the defendant, substantially the amount charged in the complaint referred to in the declaration; and that he did not turn over this money until after he was arrested, but at the time of collecting it he informed the persons who paid it that he was not in the employ of the defendant.</p> <p>The plaintiff further testified that on Monday morning, when he went to work for Kelley and Batchelder, he went over some part of the route which he had formerly covered when at work for the defendant, and got as many of the customers’ laundry as he could get, and brought the work to the shop of Kelley and Batchelder, but that he informed every customer of his discharge, and solicited the work for Kelley and Batchelder.</p> <p>John M. Kelley, a witness for the plaintiff, testified that on Sunday, August 11, he saw the plaintiff, and made arrangements with him to go to work for his firm, namely, Kelley and Batch-elder; and that prior to that day there had been no negotiations whatever between the plaintiff and his firm for the plaintiff to go to work for them.</p> <p>Albert R. Bowley, a witness called by the plaintiff, testified that he was on the team with the plaintiff for about two weeks prior to August 11, learning the route ; that on Monday, August 12, he saw the defendant, who told him that he had discharged the plaintiff, and asked him if he was willing to go on the route and help him ; and that he went on the route Monday morning, in place of the plaintiff, taking the defendant’s team, and collecting for him all the laundry work he could get.</p> <p>The witness testified, on cross-examination, that the plaintiff told him that he had got through work for the defendant Sunday afternoon; and that the reason for it was because the plaintiff insisted upon having his vacation.</p> <p>The defendant, on cross-examination, admitted that he instituted the prosecution of the plaintiff for the purpose of getting back his money and his customers. One Wadleigh, a witness called by the plaintiff, testified that the defendant testified in the Police Court of Lynn that his object in instituting the prosecution was to get back his customers and accounts; and that the defendant also testified that he held the plaintiff responsible for all the accounts on the book.</p> <p>It was admitted that the defendant published the alleged libel, set forth in the second count of the declaration, in the Daily Evening Item; and that that paper had a daily circulation of about ten thousand copies.</p> <p>The defendant asked the judge to instruct the jury that, upon the evidence offered by the plaintiff, he had failed to prove want of probable cause, and to return a verdict for the defendant upon the first count; and also to instruct the jury that no cause of action was set out in the second count of the declaration, and to return a verdict for the defendant on that count. The judge refused to rule as requested ; and the defendant excepted. The case was submitted to the jury, with full instructions, to which no exceptions were taken.</p> <p>The jury returned a verdict for the plaintiff on both counts; and the defendant alleged exceptions.</p>

<p>Divorce—Imprisonment for more than Five Years — Statute.</p> <p>The libellee, in a libel for divorce, who was sentenced to imprisonment at hard labor in the state prison for not more than six years nor less than three years, was sentenced to imprisonment for more than five years within the meaning of Pub. Sts. c. 146, § 2.</p>

<p>Contract — Statute of Frauds.</p> <p>Of three writings, addressed to A. and signed by B., the first contained the following : “ I hereby agree . . . to loan three thousand dollars on second mortgage above twelve thousand dollar mortgage held by D. as trustee for one year at 10% interest”; the second, “Don’t forget to mention in the mortgage the right of way over the new property you spoke of”; and the third, “I wrote last night about the driveway you said would go with the mortgage, and some other things that I suggested.” Held, in an action by A. against B. for breach of contract, the declaration in which showed that the mortgage to B. was to cover, in addition to the land, a right of way appurtenant to adjoining land to be acquired by A., which easement was a material element in the contract, that the writings did not constitute a sufficient memorandum under the statute of frauds, Pub. Sts. c. 78, § 1, cl. 4.</p>

<p>Tort, for, personal injuries occasioned to the plaintiff by being struck by the defendant’s locomotive engine and tender at Charlestown, in Boston. Trial in the Superior Court, before Bishop, J., who directed the jury to render a verdict for the defendant; and the plaintiff alleged exceptions, the nature of which appears in the opinion.</p>