Volume 170 — Massachusetts Reports

<p>Petition, under Pub. Sts, c. 191, to enforce a mechanic’s lien, against Charles J. Lord, Hannah E. Young, and Hattie C. Ham-burgher. Trial in the Superior Court, without a jury, before Hardy, J., who found for the respondents; and the petitioners alleged exceptions to the overruling of a motion that issues be framed for a jury. The facts material to the point decided appear in the opinion.</p>

<p>Contract, upon an account annexed, against the executors of the will of L. C. Durkee, for goods alleged to have been sold and delivered, in May, 1894, to the firm of L. C. Durkee and Company. Trial in the Superior Court, without a jury, before Hardy, J., who allowed a bill of exceptions, in substance as follows.»</p> <p>The items of the bill of particulars, and the sale and the delivery of the goods to J. C. Murray, assuming to do business as L. C. Durkee and Company, were not in dispute. The following facts were in evidence. L. C. Durkee, the defendants’ testate, was the owner of a one and a half story building at 259 Friend Street, Boston, and had for seven or eight years carried on the business of a retail liquor dealer at that place. Before and at the time of the sale of the goods by the plaintiffs, there was on the upper part of the store a sign of “ L. C. Durkee, Importer of Montrose Gin ”; on each of the window panes was the name of “ L. C. Durkee ” ; and in full view, hanging on the wall, was a liquor license dated May 1, 1893, and expiring May 1, 1894, issued by the Board of Police Commissioners of Boston, bearing the name of “ L. C. Durkee ” as licensee.</p> <p>Horace J. Gray, one of the defendants,, was called as a witness by the plaintiffs, and testified that he was the “ business manager ” for L. C. Durkee in connection with the business 'in this store prior to May, 1894; that he “ attended to his matters for him at his request”; that he took care of the financial part of Durkee’s business entirely during the last few months of his life, and took care of all of the Boston business for him, and he appeared to leave everything with him; that he was employed at 259 Friend Street until March 26, 1894, and continued to stay there until about April 30, 1894, as manager in the interest of Durkee; that on March 26, Durkee signed a bill of sale of the business and stock at the store, and executed a lease of the store for five years to J. C. Murray, who paid SI,000 down; that the trade was not consummated until April 30, until which time Gray was instructed to look after Durkee’s interests, and be did so; that Murray might have called in the store between those dates; that the witness never took any steps toward removing the signs upon the building and the windows; that he collected the rent of the store for Durkee from Murray afterwards, and was by the store several times in May, 1894; that he never gave notice to anybody that Durkee had ceased to do business at that store; that there was nothing upon the building or in the store to show that Murray was the proprietor of' the store; that in the spring of 1894, Durkee was unable to attend to business, and had been residing som„e years at North field, and had been blind for eight or nine years prior to his death, which occurred in August, 1894; that when the witness signed an application for a license for the year 1894, as hereinafter stated, he did so as manager, without specific instructions from Durkee; that he told Durkee that he had made an application for a license, but it did not appear that the terms of the application were communicated to Durkee; and that subsequently to March 26 Durkee resided at Northfield, and did not return to Boston, and the witness did not take any active charge of this business until his death.</p> <p>David H. DeBoer, a salesman for the plaintiffs, testified that he had seen Durkee'in the store at 259 Friend Street in 1893, and had sold him one bill of goods there about January or February, 1893; that he had been in the store several times during the year 1894; that he was there a couple of times in April, and saw a city license in that store, upon which the name L. C. Durkee appeared, in May; and that in April he saw the sign of L. C. Durkee over the door, and of L. C. Durkee upon the window, and the same signs were there when he went into the store about the 1st or 2d of May, 1894, and when he sold the goods in question about May 6.</p> <p>Upon this evidence, the plaintiffs asked the judge to rule as follows: “ If L. C. Durkee permitted his name and sign to remain on his store, he is responsible to all persons who gave credit to him on that account in the usual course of business as carried on at that place.” This request was refused, because “ in the form presented it does not apply to the facts in the case.”</p> <p>Gray also testified that, prior to the execution of the bill of sale and the lease of the premises from Durkee to Murray, and while negotiations between them were pending relative to the transfer of the store, he had made an application to the Board of Police Commissioners for a license to carry on the liquor business at this store, and signed the names of L. C. Durkee, Oscar F. Durkee, and J. C. Murray on the application to do business as L. C. Durkee and Company; and that he made this application under what he supposed were the general instructions of Durkee to protect the business, in order that, the application being “a blanket application,” in case of the death of L. 0. Durkee, the survivor might carry on the business, or in case of sale the purchaser might carry it on. The clerk of the Board of Police Commissioners produced the books and records of that board, and the application, which was received on March 14, 1894, and testified that the application was granted on April 27, 1894, and the license delivered some time in the latter part of May or first part of June, 1894.</p> <p>Upon this point, the plaintiffs requested the judge to rule as follows: “ The fact that Durkee took out a license is evidence of partnership, if his name appears upon it.” This request was refused by the judge, “ because I do not find that he took out a license.”</p> <p>Gray testified further, that he ran the store for Durkee until April 80, 1894, charging Murray for rent from March 26, 1894, and collected the rent for it afterwards, and told Durkee; that from May, 1893, to the time of Durkee’s death he was employed by Durkee; and that Durkee told him to remain in the store until Murray had paid the full amount of money, and that he was to run the business until Murray should pay, and Durkee also told him to buy the goods the same as he always had, and, if Murray paid the remainder of the cash, to turn over the profits to him, deducting the expenses, which was done on April 30, 1894.</p> <p>The plaintiffs asked the judge to rule as. follows: “If Gray was Durkee’s agent, the signing of the application in the name of L. C. Durkee and others, doing business as L. C. Durkee and Company, is evidence of a partnership.” The judge refused this request, “ because I do not find that Gray had authority as agent to bind Durkee as a partner with Murray in the application for a license.”</p> <p>DeBoer, the plaintiffs’ agent, also testified that he was in the store a couple of times or more in April, and asked for Durkee, and somebody in the store informed him that Durkee was away, and said that Murray was running the business; and that lie asked for Durkee, and was told by some one in the store that Murray was a partner.</p> <p>The plaintiffs asked the judge to rule as follows: “ If DeBoer was told in the store in April, 1894, at that time carried on by Durkee, that Murray was a partner, he has a right to rely upon it.” This request was refused by the judge, “ because I do not find that any one in the store had authority to make such a statement as would bind Durkee.”</p> <p>The plaintiffs also requested the judge to rule, “If Durkee held himself out as an ostensible partner, he is bound by the statements and acts of Murray,” which request was allowed.</p> <p>It was in evidence that the plaintiffs’ agent received a card in the store, at the time of making the sale, upon which was L. C. Durkee, J. C. Murray, L. C. Durkee & Co. Gray testified that he first learned of the use of this card by Murray on J une 18, 1894, and on such information at once notified Murray to discontinue such use, and also gave public notice in newspapers that Murray had no right to use such names; and that this was done by order of Durkee, who was first informed of such use of his name on June 18, 1894.</p> <p>The plaintiffs requested the judge to rule as follows: “ The signing of the application for a license, the name on the building, the name on the windows, the statements by people in Durkee’s store to DeBoer, and the neglect to remove the signs or give notice, is sufficient evidence to hold L. C. Durkee as an ostensible partner.” This request was disallowed, on the ground that the judge did not find the facts such as to bind Durkee by reason of the acts of Gray or others in the store.</p> <p>The judge found for the defendants; and the plaintiffs alleged exceptions.</p>

<p>Contract, for money had and received. The declaration alleged that the plaintiff, having filed a petition in insolvency, made a composition with his creditors and obtained his discharge on April 12, 1892 ; that by force of the statutes all his rights and estate which were vested in the assignees, and not lawfully used in carrying out the composition, reverted to and revested in him, and were now vested in him absolutely; that prior to said April 12,1892, his assignees, the defendant bank, and “ one J. N. Thompson entered into an agreement to give to the defendant, with intent to procure its assent to said composition, five thousand three hundred fifty-nine and dollars in excess of twenty cents on each dollar of its just claim; and in pursuance of said agreement, the defendant, through said Thompson as its attorney, assented to said composition, and thereafterwards, on the 25th day of said April, in consideration of its said assent and in pursuance of said agreement, was paid by and received from said assignees, out of moneys of the plaintiff in their hands as assignees, said sum of five thousand three hundred fifty-nine and dollars in excess of twenty cents on each dollar of its just claim, and that the aforesaid agreement and payment were made without his knowledge or assent.” The declaration further alleged that the agreement and payment were in fraud of the plaintiff’s rights, a preference, and in violation of the statutes relating to insolvency and to composition by insolvent debtors.</p> <p>The defendant demurred to the declaration, assigning as ground therefor, among other things, that it was nowhere alleged' in the declaration that any account of the assignees as such had been filed or allowed in the insolvent court.</p> <p>Morton, J. sustained the demurrer, ordered judgment for the defendant, and, at the plaintiff’s request, reported the case to the full court. If the ruling was right, judgment was to be affirmed; otherwise, the demurrer was to be overruled, the defendant was to answer, and the case was to stand for trial.</p>

Two ACTIONS OF tort, for slander, originally brought in the Municipal Court of Boston. At the trial in the Superior Court, before Blodgett, J., the plaintiff called her husband as a witness, who was surety on the appeal bonds given by the plaintiff; and the defendants, for the purpose of affecting his credibility, sought to show this, and offered the bonds in evidence, but' the judge excluded them, and the defendants excepted.

<p>Indictment, for an assault with intent to kill. At the trial in the Superior Court, before Dewey, J., the defendant James F. Quigley having testified in his own behalf, the District Attorney, to affect his credibility under the Pub. Sts. c. 169, § 19, offered a certain paper, the nature of which appears in the opinion. The judge admitted the paper in evidence; and the defendant Quigley alleged exceptions.</p>

<p>Complaint, for keeping and maintaining a liquor nuisance in Brockton. At the February term, 1896, of the Superior Court, the defendant was convicted of keeping and maintaining a nuisance. He alleged exceptions, which were duly allowed. On the day of the conviction, sentence was asked for and imposed. The defendant asked for a stay of execution of sentence, which' was granted by Mason, C. J. The exceptions were duly argued, and in November, 1896, were overruled. At the next term of the Superior Court, in February, 1897, the District Attorney moved that the order of stay be vacated. The defendant thereupon offered to show to the court that he was not in physical condition to endure imprisonment, and asked the court, in the exercise of its discretion, not to grant the order of vacation.</p> <p>Sheldon, J. declined to hear the evidence, and granted the motion of the District Attorney. The judge, in refusing to receive the evidence offered, ruled that he had no discretion in the matter, as the evidence, while competent upon the question of fixing sentence originally, was not competent upon the question of granting the motion for vacation of the order of stay.</p> <p>The defendant alleged exceptions.</p>

Indictment, in two counts. The first count alleged that the defendant, on November 6,1896, at Danvers, feloniously, wilfully, and maliciously mingled a teaspoonful of powder, known as “ rough on rats,” the same being, and known by the defendant to be, a deadly poison, with one pint of tea, with the intent that the tea, so mingled with the poison, should be swallowed by one Albert F. Learoyd, with the intent to kill him.

<p>Landlord and Tenant— Wrongful Eviction from. Part of Premises — Rent — Covenant to Repair.</p> <p>A wrongful eviction of a tenant by bis landlord from a part of the demised premises suspends the rent under the lease, but does not necessarily end the lease or other obligations of the tenant under it, such as a covenant to repair.</p>

<p>Action on Pub. Sts. c. 175, to recover possession of a house and land in South Hadley, alleged to be held by the defendant unlawfully, and against the right of the plaintiff. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Arson — Confession.</p> <p>At the trial of an indictment of a boy sixteen years of age, and of less than average intelligence, for setting fire to a barn, the court said that, while, not to speak of an earlier examination, the manner in which the written confession was prepared deserved criticism, as every word was put into the boy's mouth by one in whose power he probably seemed to himself to be, yet it could not say, as matter of law, that the confession was wrongly admitted, as it purported on its face to be made of his own free will without hope of favor and after having been duly warned, and as the judge who tried the case and saw the parties was satisfied to let it in; and the court must presume that the jury were of his opinion.</p>

<p>Injury to Cattle during Transportation on Railroad — Duty to unload and feed Cattle ■— Instructions —• Statute — Order of Cattle Commissioners — Law and Fact — Negligence — Due Care — Damages — Evidence.</p> <p>The finding of the jury, in an action for injuries to cattle during transportation on a railroad, that no contract in writing between the parties was signed at the time of shipping the cattle renders immaterial all requests for rulings made and rulings given on the assumption of the existence of such a contract.</p> <p>In an action for injuries to cattle during transportation on a railroad, a request for an instruction that if a contract for the shipment of the cattle relied on by the defendant to establish its defence was signed by the plaintiff some months after such shipment, and if he signed it at the request of the agent at the place of shipment, he cannot recover, is rightly refused.</p> <p>The Pub. Sts. c. 207, § 55, in regard to the confinement of animals in railroad cars for longer than a certain period without unloading them for rest, food, and water, are not superseded by orders of the cattle commissioners, providing that animals in transit, or neat cattle brought from without the limits of the Commonwealth, shall not be unloaded therein for any purpose whatsoever, except in case of accident, at any place other than a quarantine station designated, or upon a written permit signed, by the commissioners, and apply to a case where a part of the time of confinement was on railroads outside of the Commonwealth.</p> <p>It cannot properly be ruled, at the trial of an action for injuries to cattle during transportation on a railroad, that if failure to comply with Pub. Sts. c. 207, § 55, is evidence of negligence, it is evidence of negligence on the part of the plaintiff, as well as on the part of the defendant. Whether the plaintiff, who accompanied the cattle, was in such a relation to the business of carrying the cattle as to be affected by the statute is a question of fact for the jury.</p> <p>In an action against a railroad corporation for injuries to cattle which were received from a connecting railroad during transportation, it is proper to show the general course of business of the defendant in shipping cattle received from the connecting railroad, as bearing upon the questions whether the defendant was negligent, and whether the plaintiff was in the exercise of due care.</p> <p>Proof that cattle were in good condition when they were shipped is competent in an action for injuries received by them during transportation, in connection with the other evidence in the case.</p> <p>In an action for injuries to cattle during transportation on a railroad, evidence of the price paid for them in the place of shipment and of the market value of such cattle in a city near the place of delivery is immaterial; but their value at the latter place is the standard by which the damage is to be measured.</p> <p>Cattle were shipped on two cars, one of which was detained several hours for repairs at A., the other being forwarded from A. over a connecting road to its destination. In an action against the railroad corporation for injuries to the cattle during transportation, the plaintiff, who remained in A. until the first car was repaired and forwarded, was allowed to testify that the train despatcher at A., of whom he inquired about the missing car, told him that nothing would keep the car back unless it was broken, and that he telephoned and then told him that “ there was a broken car.” Held, that this evidence was competent on the question whether the plaintiff was negligent. Held, also, that evidence in regard to the time when the plaintiff signed a contract of shipment relied upon by the defendant to establish its defence, which time was several months after the shipment, and what was said in connection with the signing, was competent.</p> <p>As bearing on the question whether cattle were shipped on a railroad under a contract in writing containing provisions referring to two different rates, it is proper to prove, in an action for injuries to the cattle during.transportation, that the defendant never gave the plaintiff but one rate for freight on cattle from the place of shipment to the place of delivery.</p> <p>The plaintiff in an action for injuries to cattle during transportation on a railroad may testify, to show his due care, that he did not know that a permit to unload the cattle in this Commonwealth was necessary.</p> <p>Whether the plaintiff in an action for injuries to cattle during transportation on a railroad had trouble with the defendant about another transaction is immaterial.</p>

<p>Petition to enforce a mechanic’s lien, under Pub. Sts. c. 191. The case was submitted to the Superior Court; and, after judgment. for the petitioner, to this court, on appeal, upon agreed facts, in substance as follows.</p> <p>The petitioner was employed by the Worcester Engineering Company, which was under a contract with the respondent to build its railroad and equip the same, under date of October 16, 1895. The petitioner performed and furnished labor, under an entire contract, on the car barn. The statement, duly filed in the registry of deeds, is conceded to be true; and if the petitioner is entitled to enforce his lien, the sum of $2,359.50, and interest thereon from the date of the writ, August 24, 1896, would be the amount thereof. The description of the property intended to be covered was also duly filed in the registry of deeds. If the petitioner is entitled to recover only the amount for labor after the delivery of the deeds mentioned below, then the amount should be $25. The heirs of Bridget Mulcahy owned the land, and in November, 1895, orally made a contract with the Worcester Engineering Company to sell the land to the respondent for $362.20. The deeds to convey the title were dated and acknowledged on December 5 and 19, 1895, but were not delivered to the respondent, nor was the land paid for, until June 2, 1896. In November, 1895, the heirs of Bridget Mulcahy knew of the survey for the erection of the barn on the premises, and lived during the wdiole time of its erection within two hundred feet therefrom, with an unobstructed view of the same. The deeds were held as security for the purchase money by the grantors during the whole progress of its erection, from their date to their recording, with full knowledge that the barn was being built thereon. The contract under which the petitioner did the work was dated December 3, 1895, and work was begun on December 5,1895, and concluded on August 1,1896., The claim of lien was filed on August 22, 1896. The labor was performed and furnished in the construction of the barn with the knowledge and consent of the Worcester Engineering Company, both before and after the deeds were delivered. The respondent knew that the work was being performed, and on July 1, 1896, the president of the respondent had the barn opened to allow the petitioner to do work for the purpose of completing the barn and extending the time for filing his claim of lien for work thereon.</p>

<p>Tort, for breaking and entering the plaintiff’s close in Hard-wick, and doing certain acts thereon. At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Veterans’ Preference Act — “Labor Service of a Town.”</p> <p>A janitor of the Memorial Hall of the town of Oxford is not in the labor service of the town, within the meaning of § 6 cff St. 1896, c. 617, entitled “An Act relative to the public service of the Commonwealth and the cities and towns thereof, and the employment of veterans therein.”</p>

Contract to recover money deposited with the defendant. Trial in the Superior Court, before Hopkins, J., who directed the jury to return a verdict for the plaintiff for the amount claimed, with interest from the date of demand; and the defendant alleged exceptions, the nature of which appears in the opinion.

<p>Partition — Implication — Land subject to Easement—Statute.</p> <p>The purchase in common of land subject to the easement of a passageway already belonging to the purchasers does not raise an implication that the land shall remain in common, nor render a partition of it inequitable.</p> <p>The Pub. Sts. c. 178, § 1, providing.that “ persons holding lands as . . . tenants in common may be compelled to divide such lands either by writ of partition at the common law or in the manner provided in this chapter,” apply to land subject to a right of way.</p>

<p>Petition for leave to file an information in the nature of a quo warranto. The respondents demurred thereto, assigning as grounds therefor that persons were improperly joined as petitioners having several distinct and separate interests and claims which could not be properly litigated in one proceeding, and that there were no facts set out in the petition which entitled the petitioners, in their own names, to file an information in the nature of a quo warranto. Knowlton, J. reserved the questions of law raised by the demurrer for the full court. The facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while employed in the defendant’s wire mill, by falling into a vat of vitriol. The declaration contained three counts, one at common law alleging negligence of the defendant in not furnishing suitable machinery and appliances, and in not keeping machinery and appliances in proper condition and repair, and two under the employers’ liability act, St. 1887, c. 270, one alleging negligence of the superintendent, and the other negligence of a person in charge of the ways, works, or machinery. Trial in the Superior Court, before Hopkins, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Bill in equity, filed February 29, 1896, in the Superior Court, to restrain the defendants from maintaining a dam and obstructing a watercourse, and causing it to flow back upon the plaintiff’s land. The case was referred to a master, who found and reported the following facts, among others. The plaintiff is a corporation, having its usual place of business at Clinton, and has a title by deed to the land described in the bill.

<p>Fraud — Deed by Husband to Wife through Third Party — Consideration — Law and Fact.</p> <p>In the absence of any finding of fraud on the part of a husband in conveying through a third person a lot of land to his wife soon after marriage, conform-ably to his promise so to do made just before marriage, and in consideration of which she promised to marry him, it cannot be held that the conveyance was void, as matter of law, as to his creditors.</p>

<p>Will — Appeal — “ Person aggrieved ” — Ruling — Evidence as to Marriage.</p> <p>Where the appellant from a decree of the Probate Court allowing a certain instrument as a last will claims her appeal as the widow of the testator, and the executor files an answer denying that she is his widow or that she is aggrieved by the decree, at a trial of that issue a request for a ruling that,, “for the purposes of the hearing, she is not required to establish more than a prima facie case,” is rightly overruled, and a ruling “ that she is not bound to establish conclusively that there was a valid marriage subsisting at the death of the testator, but that, taking all of the testimony into account, it should appear with at least a reasonable degree of certainty that such was the case,” is correct.</p>

<p>Betterment—Assessment on Land of Railroad within Location — Statute.</p> <p>The land of a railroad corporation lying within its location is not liable to assessment for the cost of the construction of a sidewalk and a sewer in public streets upon which such location abuts, the assessment in the first instance being made under a statute providing that the cost of construction shall be assessed upon the abutting lands, “ provided, however, that, if any such parcel is devoted to public use, said city may assume and pay the whole or part of the amount assessed thereto, if said city shall deem proper so to do ”; and in the second instance, under a statute providing that, “ when an assessment is made for a parcel of land for which the owner is by la w exempt from being taxed,” the collection of the assessment shall be suspended, but if “ the parcel ceases to be owned by a person or corporation so exempt,” the assessment shall be collected subsequently.</p>

<p>Obtaining Money by False Pretences — Indictment — Motion to Quash — Principal and Agent— Conspiracy — Evidence.</p> <p>An indictment charged A. and B. with obtaining money by false pretences, consisting of a series of representations, extending over a period of ten months, that B. had furnished a certain city specified numbers of horses, wagons, and men, and that the city owed him stated sums of money for them. It appeared at the trial that A. was teaming clerk in the paving division of the street department of the city; and that it was his business to make returns, from reports of foremen, of horses, wagons, and drivers employed, and of the amounts due for them. These returns, it was alleged, “ when duly approved by certain other agents and employees of said city,” were presented to the treasurer of the city and paid by him. Held., that it was no defence that the city, through its agencies, ought to have found out the discrepancy.</p> <p>When a corporation is to be informed by one agent of the state of accounts of another, it is not chargeable, as against the former, with knowledge of the very facts of which it was his duty to inform it.</p> <p>An indictment against A. and B. for obtaining money by false pretences, A. being teaming clerk in the paving division of the street department of a city, whose business it was to make returns, from reports of foremen, of horses, wagons, and drivers employed, and of the amounts due for them, alleged that these returns, “ when duly approved by certain other agents and employees of said city,” were presented to the treasurer of the city and paid by him; that A. caused the entries to be duly approved; and that the city was induced to pay by his false representations that the approved returns were true. The alleged false pretences consisted of a series of representations that B. had furnished the city specified numbers of horses, wagons, and men, and that the city owed him stated sums of money for them. Held, that an objection that the city appeared to have paid its money on the strength of the approval by other agents, and not on the strength of the defendant’s false entries, was untenable. Held, also, that it was not necessary to allege the names of the approving officers or of the other agents through whom the city was deceived, or to allege any representations to the treasurer. Held, also, that it was immaterial whether the foremen’s reports were or were not forwarded by them, and whether their reports did or did not credit B. with the,same sums as A.’s‘return.</p> <p>A. was teaming clerk in the paving division of the street department of a city, whose business it was to make returns, from reports of foremen, of horses, wagons, and drivers employed, and of the amounts due for them. Certain counts of an indictment against A. and B. alleged false pretences made by the defendants to the city, with intent to obtain the city’s money, that B. had furnished to the city in a certain district within a certain time a certain number of horses, carts, and men, and that the city owed B. a certain sum on that account; that the defendants requested the city to pay that sum for the teams so furnished ; and that the city, believing these false representations, was induced by them to pay and did pay said sum to B.; and denied that B. had furnished any teams, and that the city owed him any money on that account, all of which, it was alleged, the defendants then knew. Held, that these counts were sufficient. Held, also, that the allegation in the indictment that the city owed B. no sum whatever need not be proved.</p> <p>An indictment for obtaining money by false pretences need not set out the words used by the defendant, but it is sufficient to state the effect of the pretence.</p> <p>To an indictment against A. and B. for obtaining money by false pretences, A. being teaming clerk in the paving division of the street department of a city, whose business it was to make returns, from reports of foremen, of horses, wagons, and drivers employed, and of the amounts' due for them, and the alleged false pretences consisting of a series of representations that B. had furnished the city specified numbers of horses, wagons, and men, and that the city owed him stated sums of money for them, it is no defence that the treasurer of the city had no authority, or was not shown to have authority, to make the payments to B.; it appearing that the return, after it was sent by A. to the deputy superintendent of paving, was approved successively by him, by the superintendent of streets, and by the auditor, each relying on the previous signatures.</p> <p>If A., who was a clerk in tire street department of a city, by means of false returns represented that the city owed B. money which it did not owe, and thereafter B. drew the amount, the jury, at the trial of an indictment against A. and B. for obtaining money by false pretences, are warranted in finding that it was by previous agreement, and the judge properly may instruct the jury that there is evidence of a conspiracy for their consideration.</p> <p>At the trial of an indictment against A. and B. for obtaining money by false pretences, A. being teaming clerk in the paving division of the street department of a city, whose business it was to make returns of horses, wagons, and drivers employed, and of the amount due for them, and the alleged false pretences consisting of a series of representations that B. had furnished the city specified numbers of horses, wagons, and men, and that the city owed him stated sums of money for them, evidence of deposits of money by A., between the dates of tlie first and last payment made to B., of an amount much too large to be accounted for by his salary is admissible, in connection with independent evidence tending to show a successful fraudulent conspiracy between A. and B.</p>

<p>Motion, by the Metropolitan Sewerage Commissioners, for the acceptance and confirmation of the report and award of the commissioners appointed under St. 1895, c. 406, relating to the Neponset River Valley system of sewage disposal, to make the apportionment therein provided for. The town of Milton objected to such acceptance and confirmation, and moved that the report and award be recommitted to the commissioners. Hearing in this court, before Morton, J., who entered a decree accepting and confirming the report and award ; and, at the request of the town, reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Bill in equity, filed April 16, 1889, in the Superior Court, by the second mortgagee of land in Hull, against Albin M. Richards, to redeem the same from the first mortgage. The plaintiff having died, the executrix of his will was allowed to come in and prosecute the suit. William J. Hanrahan, a grantee of Richards, and Charles S. Reynolds, a grantee of Hanrahan, were joined as parties defendant. Hearing before Dewey, J., who entered an interlocutory decree, adjudging that the plaintiff was entitled to redeem, and referring the case to a master to state the account. Upon the coming in of the master’s report, exceptions taken thereto by the defendants were heard and overruled, and the report confirmed. Thereupon a final decree was entered in favor of the plaintiff, from which the defendants appealed; and, at their request, the case was reported for the determination of this court. The facts material to the points decided appear in the opinion.</p>

<p>Twelve ACTIONS, the declaration in each of which contained four counts, two in contract and two in tort, the first three being against the defendant as a common carrier, and the fourth, upon which the cases were tried, being against the defendant as a warehouseman for the loss by fire of a quantity of grain while in the defendant’s elevator at Ogdensburg, New York. At the trial of the cases together in the Superior Court, before Hopkins, J., the jury returned verdicts for the plaintiffs in the first, eleven cases; and the defendant alleged exceptions. In the twelfth case, the judge directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Complaint to the First District Court of Northern Worcester for a violation of the statutes relating to the weekly payment of wages.</p> <p>In the Superior Court, before the jury were impanelled, the defendant moved to quash the complaint, assigning, among other things, as grounds therefor, that it failed to set forth that any wages were due at the times when it was alleged that the defendant neglected to pay them, and that the statutes were in violation of the Constitution of the Commonwealth and of that of the United States. The motion was overruled by Fessenden, J., and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Replevin — Married Woman doing Business on Separate Account — Attachment — Statute — Law and Fact.</p> <p>In an action by a married woman against a deputy sheriff for attaching wood as the property of her husband, the court said that even if it be assumed that she was carrying on the farm, which was several miles distant from the lot from which the wood was cut, on her separate account, yet it did not appear, as matter of law, that the wood was employed in the business within the meaning of Pub. Sts. c. 147, § 11.</p> <p>An attachment of wood in the manner prescribed by Pub. Sts. c. 161, § 69, although it purports to be only of the right, title, and interest of the husband therein, he having no right, title, and interest.in it, must be held to be an assertion of a lien thereon, and of the right of possession, and, as the attachment was void, the wife is entitled to maintain replevin for the wood against the officer who attached it.</p>

<p>Bet on an Election — Action — Statute.</p> <p>Section 11 of St. 1895, c. 419, entitled “ An Act relative to gaming,” does not apply to a mere stakeholder who pays over the money in accordance with the terms on which he received it, and before he receives any notice that the authority given him to pay it over has been revoked.</p>

Tort, under the employers’ liability act, St. 1887, c. 270, for causing the death of Albert W. Dyer, who was the plaintiff’s husband. Trial in the Superior Court, before Gaskill, J., who allowed a bill of exceptions, in substance as follows. Dyer was one of a section gang in the defendant’s employ. The accident occurred on December 15, 1893, in Leominster, between twenty minutes past and half past one o’clock in the afternoon.

Libel for divorce, on the ground of extreme cruelty. At the trial in the Superior Court, before Fessenden, J., the following facts were agreed between the parties. The libellant was formerly the wife of George Wilton of Lawrence, and lived there with him. Upon his application for a divorce on the ground of desertion, a decree nisi was entered on April 19, 1885, which was made absolute on October 12. 1887.

<p>Writ of error, to reverse a judgment of the Second District Court of Bristol, rendered in an action of replevin by the defendant in error against the plaintiff in error. The errors assigned were that, at the time of the rendering of the judgment the plaintiff in error was a minor; that, at the time of the commencing of the action in which the judgment was rendered, he did not have and never had had any probate guardian ; and that no guardian ad litem was appointed to defend him in the action ; and a copy of the record of the action was annexed.</p> <p>Plea, in nullo est erratum. To this plea the plaintiff in error filed a replication. Hearing in this court, before Morton, J., who made the following report:</p> <p>“ This case was heard by me on the petition and exhibits and the answer in nullo est erratum, and the express admission of the defendant in error, in addition to the effect of the pleading, that the plaintiff in error was a minor at the time .the judgment was rendered against him. I ordered the entry to be made, ‘Judgment reversed,’ but afterwards, upon seeing Tufts v. Newton, 119 Mass. 476, doubted my power to do so, and, the sitting having adjourned, also doubted my power to vacate the entry, as the defendant in error asked me to do.</p> <p>“ With the consent of the parties, I reserve and report the case for the full court; such disposition to be made of it as may seem fit.”'</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. The declaration contained counts at common law alleging negligence of the defendant, and under the employers’ liability act, St. 1887, c. 270, alleging negligence of a person in the service of the defendant, intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence.

<p>Ownership by City of Land in another City — Exemption from Taxation.</p> <p>Land purchased by a city within the limits of another city for the purpose of obtaining therefrom gravel for the construction and repair of streets in the city so purchasing, and thereafter used for that purpose, is appropriated to a public use and is exempt from taxation.</p>

The Superior Court affirmed the taxation of costs; and the defendant appealed to this court. The facts appear in the opinion.

<p>Death — Due Care of Plaintiff’s Intestate.</p> <p>Where, in an action against a railroad company for causing the death of the plaintiff’s intestate, who, while in the employ of a switch and signal company, was with his fellow workmen engaged at dusk in making changes in the switches and apparatus connecting them with a signal tower on the defendant’s railroad, the place being one of great danger even in the daytime, the evidence shows that the intestate and his fellow workmen were taking no precautions whatever to guard against being run over, although a locomotive engine might be there at any moment, the plaintiff fails to sustain the burden of proof which rests upon him of showing that his intestate was in the exercise of due diligence.</p>

<p>Tort, for the conversion of certain articles of personal property. The case was submitted to the Superior Court, and, after-judgment for the plaintiff, to this court, on appeal, upon agreed facts, in substance as follows.</p> <p>The plaintiff, residing in Boston, desired to go to St. John, New Brunswick; she bought her ticket on June 27, 1896, which entitled her to have her baggage carried with her, consisting of one valise. On that day, which was Saturday, she sent by an expressman the valise containing the articles named in the declaration. The expressman took the valise to the office of the defendant, and showed its agent a receipt, and requested him to sign it.</p> <p>It does not appear that the defendant had any other evidence of the destination of the valise than what is shown on the paper above referred to, and the valise itself, which was marked with the name of the owner and the place of destination, St. John, New Brunswick. The agent of the defendant declined to sign the receipt, not upon the ground that he was not the proper person to whom it was delivered, "but took the valise.</p> <p>On the following Monday morning, at 8.30 o’clock, being the day named for the vessel to sail, and known to the plaintiff as the day, she went in time to get her valise checked, inquired for the valise, was told that they could not find it, and has never seen it or received any other information with reference to it since. In order to have the valise checked, the rules of the defendant required a ticket to be presented, which she did present when she asked for her valise. The contents of the valise were valued at $28.30. The usual precautions were taken by the defendant for the protection of baggage.</p>

<p>Tort, under the St. of 1887, e. 270, § 2, by the next of kin of William F. Foss, to recover for his instantaneous death while in the employ of the defendant, alleged to have been caused by the negligent act of a servant of the defendant in charge of a locomotive engine.</p> <p>At the trial in the Superior Court, before Lilley, J., at the close of the evidence for the plaintiffs, the judge directed the jury to return a verdict for the defendant; and the plaintiffs alleged exceptions, which appear in the opinion.</p>

<p>Contract, upon a policy of insurance issued by the defendant against the liability of the plaintiff for injuries resulting from accidents caused by the horses and vehicles used in his business of transporting merchandise in Boston. At the trial in the Superior Court, before Lilley, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Bond to dissolve Attachment — Liability of Sureties—Judgment — Insolvency — Discharge.</p> <p>The liability of the sureties on a bond to dissolve an attachment, the action having gone to a judgment before proceedings in composition with creditors in insolvency are begun by the principal, is not changed by the principal’s subsequent discharge.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the inhalation of illuminating gas, which escaped in the night time from a leak in a gas pipe of a chandelier in a room occupied by the plaintiff, through the alleged negligence of the defendant.</p> <p>Trial in the Superior Court, before Mason, C. J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff introduced evidence tending to show the following facts. The house in which the plaintiff lodged was situated at No. 11 Dartmouth Street, Boston, and was supplied with gas by the defendant. The plaintiff’s room was the back parlor on the first floor above the basement. The only gas fixtures in the plaintiff’s room were a chandelier, which hung from the centre of the room, and a one-bracket side light. This chandelier was constructed of a small gas pipe running down from the ceiling, called the distributor, from the lower end of which three very small pipes branched at right angles, which were called the arms, each arm having a burner at the end and a metal stopcock near the burner, and all these pipes were incased with ornamental bronze coverings, the casing of the arms having openings along the top of about the width of a finger, but not wide enough to allow fingers to reach around or under the pipes. The plaintiff never made use of this chandelier, but used only the side light and a kerosene lamp. She used this room as a living and sleeping room, and for her business of dressmaking. The pipes of the defendant extended from the street only to the line of the house. The pipes and the fixtures within the house were not maintained by the defendant.</p> <p>The plaintiff put in evidence a gas bill of the defendant for gas used at No. 11 Dartmouth Street, dated November 1, 1895,. which had at the bottom the following printed words, namely,, a heading in large letters, “ Notice to Gas Consumers,” and below, in smaller type, “ To avoid unnecessary complaints, and to prevent accidents, regard should be given to the following rules: 6 As soon as a leak of gas is perceived, whether by day or night, immediate notice should be sent to the West Street office of the company. When the smell of gas is apparent in a room, no light or fire should be permitted, and especially no match should be lighted ; the windows should be opened, and the room left unoccupied.’ ”</p> <p>There was also evidence tending to prove that the defendant carried on in the fourth story of its offices at 24 West Street, a jobbing department, where complaints of leaks inside the buildings of its customers were sometimes received, and jobbers were employed and sometimes sent out to repair leaks in fixtures; and that, about seven o’clock on the morning of December 14, 1895, the plaintiff’s room was discovered to be full of gas, and the plaintiff was found in bed asphyxiated by gas to such a degree as to be unconscious, and she received the injuries complained of.</p> <p>Helen C. Hildreth, a witness called by the plaintiff, testified that she carried on No. 11 Dartmouth Street as a lodging house, and the plaintiff was one of her lodgers and occupied the back parlor for her business as a dressmaker and for her living and sleeping room, and had so occupied it for about two months prior to December 18, 1895; that the bed in the room was in the form of a sofa by day and a bed at night; that she was familiar with the above notice, having frequently read it upon her gas bills ; that two or three days before the accident the plaintiff reported to her that there was a slight odor of gas in her room; that a man from the defendant’s office called at the house about the meter, and she told him there was a slight odor of gas in the back parlor, and he said he would send a man to attend to it; that on December 13, about four o’clock in the afternoon, a man came to the house, and said that he came from the defendant in regard to a leakage of gas; that she took him immediately into the plaintiff’s room, and went in with him; that he went to the chandelier, took out all the stops, put them back, and said they were all right, then took out his tools and went to work at the chandelier; that then she was called out of the room, and when she came back she asked him if he had found the leak, and he said he had, and, as she remembered, he said it was in the joint; that she asked him if it was safe, and he said it was perfectly safe, and that it was safe for a person to sleep in the room, but also said, “ I will come in the morning early and look after it again ” ; that he never called again; that he had a bag with him containing his tools ; that he worked upon the chandelier with a small tool, and stood on a chair while so working; that the next morning the plaintiff’s sister came down and said the gas was leaking very badly; that she went up, and found the room was full of gas; that she sent immediately to the Brookline Gas Light Company, and two men came from that company, reaching the house about ten o’clock ; that the gas had been pouring out all the time; that it was not from the stops, which were all correct, as she examined them herself; that the gas came from the chandelier; that the men said the chandelier could not be repaired there, it would have to be taken to the shop; and that they took it down and carried it away in their wagon.</p> <p>On cross-examination, she testified that, when she first had the conversation with the messenger who came from the defendant, the leak was so slight as not to interfere with a person occupying the room; that the first visit of any messenger from the defendant was not for the purpose of repairing any leak, but for the purpose of examining the meter, because she thought her gas bills were too large; that there was no 'odor of gas after the man went away; that she was in the room in the evening for the purpose of seeing whether there was any odor, and there was none; that she noticed the slight smell of gas nowhere else in the house except in this room; that the man who did something to the chandelier went to the side light and examined that with a match and examined the stop, and said the leak was not there; that when he took out his tools and went to work on the chandelier, he began on one of the arms; and that he told the witness that he found the leak in the chandelier.</p> <p>The plaintiff testified that she was a dressmaker, and had occupied the back parlor of No. 11 Dartmouth Street for about two months before the accident; that on the morning of December 13 she smelt a slight odor of gas, and notified Mrs. Hildreth ; that between four and five o’clock of that day she was in her room, and her door was partly open, and the door bell rang, and, Mrs. Hildreth having answered it, she heard a man say, “ I am sent by the Boston Gas Light Company to repair the leak in the chandelier ”; that he came into her room with Mrs. Hildreth; that he had a bag with him and there were tools in the bag; that he took something out of the bag, and standing on a table under the chandelier worked on the chandelier with some tool, from twenty minutes to half an hour; that he had something in a paper, but she could not say whether he put it into the chandelier or not; that when he finished he picked up his tools and said it was all right; that she asked him, “Are you sure?” and he said, “ Yes” ; that after he left, the windows were raised and the room was aired; that she occupied the room during the evening, and retired about eleven o’clock; that there was no odor of gas after the man left until she retired; that she did not use the chandelier after the man fixed it, and she saw no one else touch it or interfere with it in any way; that before she retired she turned the gas off of the side light; and that that was the last she knew until the next morning, when her first recollection was that she was sitting by an open window in a chair.</p> <p>On cross-examination, she testified that the trouble before the man came was a very slight one, and did not prevent her occupation of the room; and that it did not amount to much on the morning of December 13.</p> <p>Flora Ferguson, a sister of the plaintiff, called by her as a witness, testified that she was in her sister’s room on December 13 when the man came to fix the gas; that he went to the side light, examined it, and said the leak was not there; that then he set his bag on a table, stepped up in a chair beside the table, and examined the chandelier all around the arms, then he took tools out of the bag, 'and picked at the chandelier in one place more than another; that he had a paper in the bag, and he took it out, and he had something in the paper, and he put one foot on the table and worked in that way; that he picked with a tool and said that he had discovered the leak; that he took something out of the paper, put it in his hand, and put it on the chandelier at the part at which he was picking; that she did not see what the substance was in the paper; that he worked at the chandelier about twenty minutes, then he got down from the table and said it was all right; that her sister asked if it was all safe now, and he said that it was; that she asked whether it was all right to stay in the room, and he said it was, that there was no danger; that after he left they opened the windows and aired the room ; that she and her sister remained in the room during the evening; and that she left about half past eight o’clock, and up to that time she perceived no odor of gas whatever.</p> <p>On cross-examination, she testified that she did not remember whether or not she saw him take the cocks out of the chandelier; that she was walking about the room getting things in order; that he had a tool in his hand and kept working at the chandelier, picking into it; that he would blow his breath on it and rub it with his finger; that he was picking on the chandelier at that part of the arm which was near the light; and that she could not say whether he dug anything out of the chandelier.</p> <p>John Holsterman, a witness called by the plaintiff, testified that he was a steam fitter by trade, now working for the defendant, but in December, 1895, he was working for the Brookline Gas Light Company; that at that time his duties were setting meters, fixing leaks, and doing general repairing; that he had worked for the Brookline Gas Company about two years ; that during that time he had been in something over a hundred houses, repairing leaks in fixtures, leaks in gas pipes, and leaks in services, where they come into the houses, and was familiar with the methods of repairing by practical experience; that about December 16, 1895, he thought, this chandelier, by orders of his foreman, was taken by him to No. 11 Dartmouth Street, and hung up there ; that recently he was present at No. 11 Dartmouth Street, and saw one Dowling take down this chandelier, and take the casing off, and saw the solderings pointed out by Dowling as his work, which were on the outside of each of the cocks on the arm, where the arm makes into the cock; that the brass casing came pretty close around the arm and formed a kind of covering for it, with an opening at the top wide enough to get a screw-driver down to get at the cock if one wanted to tighten it up, but one could not get his fingers around the pipe, but only right on top of the pipe; that there were two substances, cement and soap, that a skilled workman would undertake to repair a leak in a gas pipe with; that there were not ‘ any more than those two that he knew of, and that it required heat to use cement; that soap was only- used in a slight leak; that in order successfully to use it a workman would take the soap and work it into the joint with his fingers ; that it was the working in with the finger that is the important part; that soap could not have been properly used to repair this leak, because, on account of the metal casing around the pipe, the fingers could not reach around the pipe, so as to do the working in of the soap that was necessary properly to stop a leak in it; that in order to stop a leak there it would be necessary to take the casing off; that, if this leak could not be properly stopped with soap, the proper thing to be done by a workman would be to shut the gas off, take the fixture down and cap it up; and that, if they would not let him cap it, to shut the gas off altogether, or let them take the responsibility themselves.</p> <p>Edward S. Dowling, a witness called by the plaintiff, testified that he was a gas fitter and jobber, and worked for the Brook-line Gas Company in December, 1895; that recently he went to No. 11 Dartmouth Street, took this chandelier down, and took the casing off, and recognized the place where he had soldered it in December, 1895; that his memory served to recall the kind of hole he soldered; that before he soldered it, he tested it, and found a slight leak on the arm away back of the stopcock; that the arm of the gas fixture was not broken off; that there was some stripping off of the threads, where the cock had been screwed on the arm fixture; that after he soldered it, he again tested it, and found it tight; that these arms are one eighth of an inch pipes, and very small; and that he could disable the fixture with his hand in a very few minutes.</p> <p>On cross-examination, he testified that the leak in this chandelier was directly back of the stopcock; that the hole in the pipe was like a stripped thread or slight break ; that it was very small, about one sixteenth of an inch long, and just about wide enough to pass a pin into; and that it would be fairly described as a crack in the pipe.</p> <p>James J. Lovett, a witness called by the plaintiff, testified that about the middle of December, 1895, he was sent by the superintendent of the Brookline Gas Light Company to No. 11 Dartmouth Street, to see about a leak there; that he found a leak in the chandelier on the first floor in the rear room, and the smell of gas was strong when he went into the room; that he found it defective, and found there was a strong odor of gas coming from it, or from one of the arms; and that he took the chandelier down, capped it, and brought the chandelier out to the works at Brookline.</p> <p>Frank E. Smith, a witness called by the defendant, testified that he was in its employ as auditor at 24 West Street; and that on December 13, 1895, he made out a written order to go to No. 11 Dartmouth Street, “ To find out and see what accounts for large bills,” and “ Follow this up,” and gave it to the foreman of the jobbing department.</p> <p>On cross-examination, he testified that the superintendent of the jobbing department had charge of all the men who are sent out to make repairs of leaks in buildings.</p> <p>Andrew P. Richardson, a witness called by the defendant, testified that he was employed in the jobbing department of the defendant; that on December 13 he was sent to No. 11 Dartmouth Street, with the written order made out and signed by the auditor; that instructions were given him at the time to take the state of the meter, to see if any mistake had been made in taking the state of the meter; that it was about ten o’clock in the forenoon when he was there; that while at the house, Mrs. Hildreth informed him that there was a leak of gas in the back room on the first floor, but the lady was out and they could not get in, as the door was locked; that then Mrs. Hildreth called his attention to a leak in the chandelier in the front room, and said it had been leaking a long time, and that there was a slight smell of gas when they passed under the chandelier ; that he did not go into the back room at all; that he found a slight smell of gas under the chandelier in the front room; that the odor was very slight, and might come from a loose key or stopcock which wanted tightening up; that in his judgment the leak was very small, by the odor of the gas which escaped; that he did not examine it, and in his judgment no injurious results would have been effected by a leak of this description; that he told Mrs. Hildreth that he would report to the office, and some one would probably come up that afternoon and look at it; that while he was at Mrs. Hildreth’s he made a memorandum on the back of the written order given him to go there (which order was put in evidence by the defendant) in these words, “ Leak — Chandelier ” ; that at about a quarter past one on the same day he reported in writing to one Vialle, the regular officer to receive complaints at the defendant’s West Street offices ; and that he made out an order and stamped it with a time stamp.</p> <p>On cross-examination, he testified that the report he made to Vialle was that there was a leak in the chandelier at No. 11 Dartmouth Street requiring attention; that he asked him to send up that afternoon; that Vialle entered it upon a book, and that an order was made out and stamped with a time stamp, which every order was stamped with; and that he was the man by whom Mrs. Hildreth sent the notice to the defendant that there was a leak in the chandelier, and he reported it to the office.</p> <p>Lewis H. Lawrence, a witness called by the defendant, testified that he was in the employ of the defendant in December, 1895, doing jobbing work and attending to leaks; that on December 13, 1895, about one o’clock in the afternoon, he received an order to go to No. 11 Dartmouth Street; that he arrived there about five o’clock, he should judge; that he rang the bell and was admitted by Mrs. Hildreth; that he said he came about a gas leak, and asked her where it was; that Mrs. Hildreth directed him to the front room on the first floor above the basement ; that he entered the room, and no odor of gas was perceptible ; that he got upon a chair and found a slight odor of gas in the chandelier; that he greased the cocks, and then examined the fixture and smelled of it to see if he could get any odor of gas; that there seemed to be a slight odor at the distributor, which is the central part of the fixture where the arms come out from the centre of the fixture; that the leak was a very slight one, and he did not believe that it would have made the room uninhabitable; that he could not have got at the leak without taking off the arms so as to get at the distributor; that he told Mrs. Hildreth that they would fix it if she could wait, if not she would have to get a gas fitter and have it fixed; that he had grease with him to grease the cocks, but had no soap with him and made no use of any soap about the chandelier; that he did not go into any room in the house other than the front parlor, and when he went away he had not undertaken to do anything with the small leak which he thought he found; that when he left the room there was nothing about the fixture which was in any manner dangerous or that permitted an escape of the gas, and that she called his attention to no other leaks; that he fixed chandeliers and fixtures, and did anything he was sent out to do, so far as finding out where a leak was; that he had been at a great many houses and done a good deal of similar work; that he used no tools except a screw-driver and took nothing from a paper, and used nothing but grease; and that he had no bag with him.</p> <p>On cross-examination, he testified that the order he had with him was a “ regular leak order,” printed ; that he was there about twenty minutes, although it might have been half an hour; that it was at least three months after December 13 when he was first called upon to remember what he did respecting this fixture ; and that in the mean time he had gone to a great many houses and had done a good deal of similar kind of work, and had never been up there since.</p> <p>Dr. Jernegan, called as a witness by the plaintiff, testified that the gas used in this case, being water gas, contained carbonic oxide, which is the dangerous element of the gas, mixed with naphtha fumes among other elements; that the carbonic oxide is comparatively inodorous, and is the heaviest element, and descends while naphtha fumes rise; and that the odorous part of this gas is not dangerous. There was also evidence that the defendant’s gas contained about twenty-five per cent of carbonic oxide, and that carbonic oxide is a deadly poison. No witness testified directly that any soap had been used in the repair of this chandelier, or was at any time found anywhere about it.</p> <p>At the close of the evidence, the judge ruled that the plaintiff could not recover; and directed a verdict for the defendant.</p> <p>The plaintiff alleged exceptions.</p>

<p>Idle and Disorderly Person — Arrest — Jurisdiction — Married Woman.</p> <p>The Superior Court has jurisdiction, on appeal, to try, upon a complaint under Pub. Sts. c. 207, § 29, as an idle and disorderly person, one arrested without a warrant, whether his arrest was legal or illegal.</p> <p>A married woman, although she is supported by her husband, or by some other person, may be convicted of being an idle and disorderly person under Pub. Sts. c. 207, § 29.</p>

<p>Rape — Age of Consent — Statute.</p> <p>An indictment alleged that the defendant, on June 1, 1895, at C., in and upon a female child named, under the age of sixteen years, to wit, of the age of twelve years, “ feloniously did make an assault,” and her the said child “ then and there feloniously did unlawfully and carnally know and abuse.” The defendant moved to quash, for the reasons that there is set forth and described more than one offence; and that there is not described fully and plainly, substantially and formally, any offence known to the law. Held, that the motion was rightly overruled.</p> <p>The fact that the jury failed to return a verdict upon certain counts of an indictment does not prevent a judgment being entered against the defendant upon the counts upon which he was found guilty. The effect of the acceptance of the verdict and the judgment consequent thereon operate either as an acquittal on the counts upon which no judgment is rendered, or as a discontinuance of them.</p>

<p>Complaint on the St. of 1887, c. 314, entitled “ An Act for the protection of lobsters,” to the Municipal Court of Boston, alleging that the defendant on October 25, 1897, at Boston, “ did have in his possession six lobsters, each of said lobsters being then and there less than ten and one half inches in length, measuring from the extremity of the bone projecting from the head to the end of the bone of the middle flipper of the tail of each of said lobsters, extended on its back its natural length,” etc.</p> <p>At the trial in the Superior Court, before Fessenden, J., it appeared that on, said October 25 the defendant had in his possession six dead lobsters, each of which was less than ten and one half inches in length, measured from the extremity of the bone projecting from the head to the end of the bone of the middle flipper of the tail of each of said lobsters extended on its back its natural length.</p> <p>The defendant asked the judge to instruct the jury that, if they found that the lobsters mentioned in the complaint were not alive at any time while in the possession of the defendant, he was entitled to a verdict. The judge refused so to rule; the jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed May 12, 1894, for the specific performance of an agreement to open a four-inch gate at the gate-house of the defendant’s dam at Stony Brook, and allow thereafter a quantity of water to pass through from its reservoir above the dam to the plaintiff’s mill sufficient for washing and steam purposes.</p> <p>After the former decision, reported 164 Mass. 176, the case came on before Holmes, J., for reference to a master, and the defendant moved that an order of reference be issued in the following form:</p> <p>“ In the above entitled case it is hereby ordered that Alfred Hemenway, Esq. be and is hereby appointed special master to hear the evidence and report: 1. As to the amount of damages, if any, that the plaintiff may have sustained by the defendant’s failure to furnish water. 2. What amount of water, if any, the defendant shall be directed to furnish the plaintiff from its reservoir. 3. What the damages will be to the defendant if it shall be compelled to supply water from its reservoir to the plaintiff. 4. What the damages will be to the plaintiff-if the defendant shall not furnish water from its reservoir. 5. To find such other facts bearing upon the case, and report such evidence as either party may request.”</p> <p>The judge ruled that the plaintiff was entitled to specific performance of his contract, (being that set forth in 164 Mass. 176,) whatever the proportion between the damage which would be suffered by the plaintiff in consequence of non-performance, and that which would be suffered by the defendant in consequence of performance and on that ground only; and, subject to the defendant’s exceptions, made an order of reference in the following form:</p> <p>“ In the above entitled case it is hereby ordered that Alfred Hemenway, Esq. be and is hereby appointed special master to hear the evidence and report: 1. As to the amount of damages, if any, that the plaintiff may have sustained by the defendant’s failure to furnish water to the plaintiff’s mill under the contract referred to in the opinion of this court since July 1, 1893. 2. To report any plan or plans to regulate the flow of water through the said gate so that the Roberts Mill, so called, may be supplied with water sufficient for washing and for steam purposes, to take the place of the water heretofore furnished to him by the defendant for such purposes. 3. To find such other facts bearing upon the motion made by the plaintiff for a decree in the premises, and report such evidence bearing upon the same as either party may request, and to make report in thirty days unless good cause be shown for further delay.”</p> <p>The case was reported to the full court; and subsequently, upon the coming in of the master’s report, a final decree was entered, from which the defendant appealed. The facts appear in the opinion.</p>

<p>Bill in equity, to enjoin a sale of the franchise of the Plymouth County Railroad Company on execution, under the provisions of Pub. Sts. c. 105, § 31. Hearing before Knowlton, J., who reported the case for the determination of the full court. The facts appear in the opinion.</p>

<p>Equity Practice—Finding of Master — Promissory Note.</p> <p>In order to warrant this court in sustaining an exception to the report of a master, to whom a suit in equity has been referred, and in overruling an order of the Superior Court confirming the report, it must appear that the finding of the master was clearly wrong.</p>

<p>Lien for Storage of Goods — Notice — Owner—Statute.</p> <p>Where a husband places his wife’s goods together with his own in his name, with her full knowledge and approval, in the custody of a third person who does not know that the wife has any interest therein, her contention that she is entitled to notice of a petition by the third person for an order for the sale of the goods, under Pub. Sts. c. 192, §§ 24, 25, cannot avail.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries sustained by the plaintiff by being struck by a train. Trial in the Superior Court, before Mason, C. J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff offered evidence tending to show that on January 8,1896, he was in the employ of the defendant as a track repairer, at a place called Summit Station, near Worcester, on a branch of its railroad called the Worcester, Nashua, and Portland Division; that he had been employed by the defendant about a month; that of that time all but five or six days had been spent in laying side tracks elsewhere; that at the time of the accident he had been working five or six days repairing tracks on the stretch of track beginning some eighteen hundred or two thousand feet westerly from the place where he was then at work, and continuing easterly along such stretch of track up to that place; that one Bowles was in charge of a gang of twelve men, including the plaintiff, who were repairing the tracks at different points in the vicinity where the plaintiff was injured, but at the time of the accident Bowles was at the Summit Station, fourteen hundred and forty feet in a westerly direction from the place where the plaintiff was hurt; and that at the time of the accident, and for some fifteen or twenty minutes prior to that time, the plaintiff was at work unscrewing nuts from the bolts in an old rail which had been placed eighteen inches outside the rail of the track upon which the train that injured him came.</p> <p>There was evidence tending to show that it was the custom of the workmen to place the old rails upon the ends of the ties when performing labor upon them such as that in which the plaintiff was then engaged ; that in the course of this employment the plaintiff used a wrench about two feet long, and an iron hammer that weighed eight or nine pounds, and that it was not possible for him to have remained so at work that no part of his body would have been exposed to a train upon the tracks; that the Summit Station was a flag station and east of it was a crossing without gates, and at a curve some thirteen hundred and forty feet in a westerly direction from the station, the rules required the engineer to whistle for the purpose of warning persons at the station or at the crossing of the approach of a train ; that from the whistling post in such curve to the place where the plaintiff was injured was about twenty-eight hundred feet; that the engine did whistle while on the curve, and at a point where the plaintiff and those at work near him could not have seen it; that the train was not then in sight; that it was going about twenty-five or thirty miles an hour, and did not stop at the station; that there was a down grade from the station to the place where the plaintiff was at work; that from the time of the whistle on the curve the engine did not whistle, neither did the bell ring; and that, for a distance of fourteen hundred and eighty feet in the direction from which the train came, there was a straight stretch of track and no obstruction to view.</p> <p>A witness, who was farther from the place from which the train came than the plaintiff, testified that at the time he heard the whistle he looked and saw the plaintiff at work unscrewing nuts from an old rail; and that he looked at the plaintiff again when the train was some three or four hundred feet away, and the plaintiff was still at the same work. It appeared that the-plaintiff kept constantly at work until the train struck him that the train did not slacken its speed or stop after the plaintiff was struck; and that the rules of the defendant required the-engineer to give warning to persons or animals on its tracks of the approach of the train by blowing consecutively short sharp¡ blasts of the whistle.</p> <p>Xavier Jean, called as a witness by the plaintiff, testified that he was at work at the time of the accident on the same track as the plaintiff, but on a different rail, and farther than he from the approaching train by the distance of one hundred and fifty feet; that they had worked at that place five or six days repairing the track; that the plaintiff was at work unscrewing nuts from old rails and taking off old bolts; that the old rail was on the outside of the track, eighteen or twenty inches from the rail upon which the train came; that the plaintiff was bent over, with a wrench a foot and a half long, and his head was over the rail; that it was not possible for him to do that work so as to prevent some part of his body from being exposed to a train upon the tracks ; that the train by which the plaintiff was injured was a regular train, always running at the same hour; that he heard it coming when it was at the station; that he heard it whistle for the crossing at the Summit Station and before it came in sight, there being four whistles,' two long and two short ones; that five persons were working there at that time; that the engine did not whistle, neither did the bell ring, after the train came into sight; that as the train came along the plaintiff was still unscrewing nuts, as when the witness first saw him before the train came into sight; that the kind of work which the plaintiff was doing made it more difficult to hear the approach of trains ; that there was snow on the ground, and snow deafens the hearing of the approach of trains ; that the train came fast, and the front part of the engine struck the plaintiff on the right :side of the head; that the witness did not call to him because he was afraid that he would jump in front of the train and get killed; that the plaintiff did not look up at any time, but kept doing the same work ; that the plaintiff’s hearing was good, and he had no difficulty in understanding the witness when he spoke English ; that he knew, aside from the signal, that it was time for the train to come, and knew no reason why the plaintiff should not have known that too; and that it was part of the witness’s business to watch and listen for signals.</p> <p>Albert S. Davis testified that he was in the gang with the plaintiff, putting in steel rails below the crossing, and came along up to the place where the plaintiff was injured; that he was sixty feet nearer the station than the plaintiff when he was hurt; that he heard the train coming, and heard it blow for the crossing before it came around the curve; that he saw the engine all the time as it came along; that after hearing the whistle, he kept watch for it; that it was not possible for a man to do the work which he and the plaintiff were doing without having some part of the body exposed to a train on the tracks; that the whistle was not blown nor the bell rung after the train came in sight; that it was a down grade, and the train was going forty miles an hour ; that he saw the plaintiff all the time as the train came along; that he was still at work upon the old rail; that when the train came along the witness got up, and when it was about up to him he called to the plaintiff to look out, that the train was coming'; that the wind was blowing against him at the time; that the plaintiff never moved, but kept right on at work; that he heard the plaintiff’s brother call to him in French when the train was about at the crossing; that the train was in plain sight for a quarter of a mile; that there was no obstruction between the crossing and their place of work; that it was the witness’s business when he heard a signal to get out of the way of the coming train; that he did not know what the signal was to warn people on the track ; and that it did not blow that day.</p> <p>Frank Landry testified that he was about three hundred and thirty-seven feet nearer to the crossing than the plaintiff, going towards the station ; that he heard the bell ring and whistle blow before the engine came around the curve, and before it was in sight; that he heard the bell and whistle for the crossing without difficulty; and that the bell did not ring nor whistle blow after the train came into sight.</p> <p>One Ladre testified that he was working on this track from two hundred and twenty-four to two hundred and forty feet farther from the station than the plaintiff; that he saw the train coming and heard the whistle before it reached the curve; that after it came in sight he heard neither whistle nor bell; that the plaintiff was at work outside the track on an old rail which had been taken off; that the witness did not think he was in any danger; that Bowles told the witness and others to look out for the trains when the work commenced; and that he did not remember whether the plaintiff was there or not.</p> <p>Albert S. Davis, recalled, testified that Bowles always told everybody in the gang to look out for trains; and that at the time of the accident, nobody was in charge of the men, Bowles having been up at the station for about half an hour.</p> <p>The plaintiff’s wife testified that her husband spoke good English.</p> <p>Upon all this evidence, the judge ruled, as matter of law, that the plaintiff could not recover; and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Contract, by the administrator of the estate of William Brierly, to recover $950 under a certificate of membership issued by the defendant to the intestate. Mary F. Rich appeared as claimant of the fund. Trial in the Superior Court, without a jury, before Hopkins, J., who ruled that the claimant was not entitled to recover; found for the plaintiff; and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Evidence — Expert.</p> <p>In an action for injuries to person and property occasioned by a collision between an electric car of the defendant and the horse and wagon of the plaintiff while the plaintiff was driving, questions to the conductor of the car are rightly excluded, even if it is assumed that he was an expert, the first of which asks for his judgment as to whether the car might have been stopped before it reached the wagon, and the second of which asks in how many feet “ do you think this car might have been stopped by this motorman, running at the rate of speed it was when the gong sounded 1 ”</p>

<p>Assessment Insurance — Misrepresentation — Statute.</p> <p>The provisions of section 21 of St. 1887, c. 214, that no misrepresentation by the assured shall avoid the policy or prevent its attaching, unless made with actual intent to deceive, or unless the matter misrepresented increases the risk of loss, applies to an insurance company incorporated under St. 1890, c. 421, entitled “ An Act relating to assessment insurance.”</p>

<p>Indictment, in three counts, under Pub. Sts. c. 205, § 9, as amended by St. 1891, c. 349, charging James C. Donovan with bribery, and Edward It. Donovan and Bernard D. O’Connell with being accessories thereto. At the trial.in the Superior Court, before Bond, J., the jury returned a verdict of guilty against each defendant upon the first count, and of not guilty upon the other counts; and the defendants alleged exceptions, and also appealed from the overruling of certain motions. The facts appear in the opinion.</p>

Contract, upon a policy of insurance against loss by fire, in which one count of the declaration was for the full amount of the policy, to wit, $1,000, and the other was for one half the award made by arbitrators, to wit, $380.84. Trial in the Superior Court, without a jury, before Richardson, J., who allowed a bill of exceptions in substance as follows.

<p>Will— Trust — Payment of Income.</p> <p>A testator gave by will the residue of his estate to a trust company, in trust to pay the income to his children G. and J., and to G. as trustee for his daughter S., and to G. as trustee for his daughter E., “ in even and equal portions, one fourth to each for and during the lives and the life of the survivor of them, and likewise during the life of the said S. and E. and the survivor of them, the child or children of either of them deceased to receive the portion which would have belonged to said deceased child, saving and excepting the child or children of E., until the decease of the last surviving one of my said four children ”; and at the decease of the last surviving child “ to pay over what may then remain unexpended thereof in the hands of the ” trust company “ to and among the children of G., S., and J., share and share alike, the child or children of any child of said G., S., and J. to take by right of representation.” By a later item the testator gave a fourth part of the income above mentioned to G., in trust to invest and pay the income arising therefrom to S. during life, at his discretion, and to pay over to her, as he might deem expedient, any portion of the accrued principal resulting from the investment of a fourth part of the original income, and upon the decease of S. “to pay over the unexpended balance to the children of” G., S., and J., “ share and share alike, the child or children of any child or children of the said G., S., and J. to take by right of representation, and from and after the decease of the said S. I order and direct that the income herein ordered to be paid to her be paid by my said trustee or his successor in said ratio until the death of the last of my four said children, at which time the residuum of my estate will be divided in the manner hereinbefore directed.” Held, on the death of S. leaving an only surviving child, D., that from the whole will it appeared that it was the intention of the testator that the income which the trust company was directed to pay to the sub-trustee for the benefit of S. during her life should continue to be paid to the sub-trustee, and should be divided by him as received, share and share alike, between her child D. and the children of G. and J.</p>

<p>Life Insurance — Non-forfeiture Law — “ Surrender Value” of Policy — Obligation of Insurer to Pay — Action by Assured.</p> <p>A policy of insurance was issued in 1884 upon the life of A., the premiums to he paid in twenty annual payments. The insurance was payable to A.’s executors, administrators, or assigns “ for the express benefit of B., his wife, and his surviving children, if neither wife (the said B.) nor children are living, then to the executors, administrators, or assigns of” A. After having paid thirteen annual premiums, A. offered to surrender the policy and demanded of the insurer payment of its surrender value, his wife and children, all of whom were of full age, joining in the application; but the insurer refused to pay it. Held, that, under Pub. Sts. c. 119, §§ 164, 165, an obligation to pay the surrender value in cash arose upon A.’s offer; and that A. could maintain an action to recover the same.</p>

Conteact upon the following instrument: “ Boston, Jan. 3, 1891. I hereby agree by and with Carlos Wilson, of Boston, to reimburse him for any loss of the hundred shares of the International Port Electric Stock purchased by him of me this day, Jan. 3,1891, at or before the expiration of five years from this date, at six per cent interest. Witness: Edward H. Pierce, Thomas W. Bicknell (seal).” Writ dated September 4, 1895.

<p>Tort, by the assignee of the estate of George W. Field, to recover the value of certain goods. The declaration contained two counts, the first of which alleged that the defendant had reasonable cause to believe Field to be insolvent, and that the conveyance was in contravention of the laws relating to insolvency, and was fraudulent and void; and that the plaintiff was entitled to recover from the defendant the value of the property. The second count was for the conversion of the goods.</p> <p>At the trial in the Superior Court, without a jury, before Gaskill, J., the plaintiff moved to amend the declaration by adding thereto a count for a fraudulent assignment of certain accounts receivable, and the judge, against the objection of the defendant, allowed the amendment; and the defendant excepted.</p> <p>Upon all the evidence, including that on the count added by the amendment, the judge found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract, on a bond to dissolve an attachment dated October 17,1893, executed by Anson A. Holt, as principal, and Amos T. White and Alonzo G. Trafton, as sureties. Trial in the Superior Court, without a jury, before Lilley, J., who found for the plaintiff against the sureties for the penal sum of the bond, they alone defending; and the sureties alleged exceptions. The facts appear in the opinion.</p>

<p>Bill in equity, filed April 29,1897, in the Superior Court, by the plaintiff as Vice President of the Cigar Makers’ International Union of America, to restrain the defendant from using a label on boxes of cigars manufactured by him.</p> <p>Hearing before Sheldon, J., who found the following facts.</p> <p>The Cigar Makers’ International Union is a voluntary association of cigar makers. The plaintiff is a member and officer thereof. The objects and operations of the association prior to September, 1896, are as stated in its constitution of 1893, and subsequent to that time as stated in its constitution of 1896. In September, 1880, the union adopted for its protection a label or form of advertisement not previously adopted or owned by any other person, firm, association, or union, announcing that the goods to which it was attached were manufactured by members of the union, and on August 22, 1893, filed copies thereof in the office of the Secretary of the Commonwealth, in accordance with the provisions of St. 1893, c. 443, § 4, and received a duly attested certificate of the record thereof.</p> <p>In January, 1894, the union altered such label by making some changes in the printed matter thereof, and on April 27, 1894, duly filed copies of the label as altered with the Secretary of the Commonwealth, all proper certificates being made and all necessary formalities complied with. Such label has been in use in its original form from September, 1880, to January, 1894, and in its amended form from January, 1894, to the present time, and has been of considerable value and benefit to the union and to its members. These labels are printed upon specially prepared paper for the union in Chicago, Illinois, and are distributed by its officers to the different local unions in the different States, these local unions being branches of the Chicago union, and are distributed by the officers of these local unions to those manufacturers whom the unions allow to receive them, in the following manner. A member of the union in the factory of each such manufacturer is appointed shop collector, and at stated short intervals, usually of a week, receives from the local union just enough labels to supply one for each box of cigars manufactured or to be manufactured during such interval, with the agreement and upon the condition that such labels shall be used only by placing them upon the boxes of cigars manufactured in such factory. Each separate factory or place of business used for the manufacture of cigars has a particular number assigned to it under the revenue laws of the United States; and whenever labels are issued to any one, the local union issuing them stamps upon each label so issued the number of the union issuing the label, and the factory number of the manufacturer to whom the issue is made. The defendant knows, and has known since the last part of December, 1893, that the labels of the union are distributed and issued in this way, and upon this agreement and condition.</p> <p>The union itself does not manufacture or sell, and never has manufactured or sold, any cigars, and does not intend to do so, and its sole revenue is from the dues paid to it by its members; and the union itself derives no pecuniary advantage from the use of the label.</p> <p>The defendant is a manufacturer of cigars, having a factory in Boston. He did not use the labels issued by the union, or labels similar to them, before November, 1893. At that time, he applied to officers of the local union for permission to use the labels, and received such permission, upon condition that he should make certain sanitary improvements in his factory, which he did. Thereupon he received from the local union these labels until about January 4, 1894, when disputes arose between him and the local union, the right to use the label was taken from him by the union, he discharged those employees of his who were members of the union, and since then he has not employed any members of the union, and has had no right to use the labels other than such right, if any, as may belong to each and every manufacturer of cigars. But he is now using, and since a time early in 1894 has been using, upon the cigars made and sold by him, labels which are exact copies of those of the union. He has procured all the labels so used by him by purchasing them from persons to whom he believed they had been issued by local unions, branches of the International Union, in the manner and upon the condition above stated, and he has mutilated them by erasing the stamped number of the factory to which they purported to have been issued. Some of the labels which he has so purchased and used were really issued in this way, and were used by him in intentional violation of the agreement and condition upon which the union had issued them; but the others of the labels were mere counterfeits of the labels of the union. The statements on the labels, as applied to the cigars made by the defendant, are false, and he knows that they are false.</p> <p>The officers of the union have for more than two years known of the actions of the defendant above stated. The secretary of the local union, on April 23,1895, sent to the defendant a letter, warning him that he was liable to be prosecuted criminally, and on January 30,1895, distributed in Boston and the neighborhood circulars stating that certain brands of cigars which were being sold bore a counterfeit or imitation of the label of the International Union. It also appeared that the officers of the union in 1897, shortly before the filing of this bill, distributed extensively in Boston and vicinity another circular, stating that certain cigars were “ scab made ” and bore “ copy of union label.”</p> <p>The officers of the union were aware of the decision in the case of Weener v. Brayton, 152 Mass. 101, and until early in 1897, when they consulted new counsel, supposed they could have no remedy in equity against the defendant.</p> <p>“ I find, if the fact is competent to be proved, that though they were aware of the passage of Sts. 1893, c. 443, and 1895, c. 462, their attention had been called merely to the penal provisions of these statutes, and they were not aware that any redress in equity was given by these statutes, or either of them.”</p> <p>Upon these facts, at the request of both parties, the case was reported for the determination of this court; such decree to be entered therein as justice and equity might require.</p>

Tort, for personal injuries occasioned to the plaintiff on August 30, 1895, while acting as a brakeman upon the freight cars of the Norwich and Worcester Railroad Company. The answer was a general denial. Trial in the Superior Court, before Hopkins, J., who directed a verdict for the defendant, and reported the case for the determination of this court, in substance as follows.

Contract, by the administratrix of the estate of Julia Carey, upon a policy of insurance issued by the defendant on the life of the plaintiff’s intestate. At the trial in the Superior Court, before Braley, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Use and Occupation — Agency—Contract — Partnership — Action.</p> <p>If A. makes a contract with B., who is his agent for the sale of his goods, and who is also a member of a partnership into the business of which he turns the proceeds of his agency, to pay a certain sum as rent for premises used by B. as showrooms for A.’s goods, and which are a part of the premises occupied by the firm for its business, the firm, with which A. has had no dealings, cannot maintain an action against A. for use and occupation of the premises.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the fall of an elevator upon which he was riding while in the defendant’s employ. Trial in the Superior Court, before Mason, C. J., who directed the jury to return a verdict for the defendant; and reported the case for the determination of this court. If the case should have been submitted to the jury, judgment was to be entered for the plaintiff in a sum named ; otherwise, judgment on the verdict. The facts sufficiently appear in the opinion.</p> <p>The case was submitted on briefs to all the justices.</p>

<p>Administrator’s Bond — Action — Account — Statute of Limitations.</p> <p>Where, in an action on an administrator’s bond for not accounting, the effect of the proceedings was a requirement by the Probate Court, within the meaning of the terms of the bond, that the administrator should file an account, its finding that he neglected so to do must be regarded as conclusive; and the fact that no decree requiring an account to be filed had been entered from which the administrator or the sureties could appeal is immaterial.</p> <p>Even if it is assumed that an action for the breach arising from the failure on the part of an administrator to render an account within one year has been barred by the statute of limitations, his neglect to render an account when thereto cited by the Probate Court constitutes an independent breach, which has not been barred even if it occurred more than twenty years after the date of the bond.</p>

<p>Union of Towns for Employment of Superintendent of Schools — Power of Dismissal — Authority of Committee — Sufficient Cause of Dismissal.</p> <p>Where several towns unite for the purpose of the employment of a superintendent of schools, under the authority of a statute which provides that the school committees of the towns comprising the union shall form a joint committee, which shall be the agents of each of the towns, such committee has the power of dismissing a superintendent, if the power of dismissal exists.</p> <p>The tenure of a superintendent of schools, chosen by a joint committee formed by the school committees of towns uniting for the purpose of the employment of a superintendent of schools under statutory authority, depends upon the terms of his employment, and by construction the contract of his employment is deemed to be for a year, unless there is something to show that it is for a less term; but in the selection and employment of such an officer there is an implied condition which authorizes his dismissal, if circumstances arise which render him no longer able or fit to perform the duties of his position.</p> <p>The pendency of an indictment for adultery against a superintendent of schools, chosen by a joint committee formed by the school committees of towns uniting for the purpose of the employment of a superintendent under statutory authority, and a verdict of guilty thereon, warrant the committee in declaring his office vacant, and in choosing his successor.</p>

<p>Appeal, by the guardian ad litem of possible lineal next of kin who are unascertained of Paul Gardner, late of Nantucket from a decree of the Probate Court ordering distribution of a French Spoliation award made by the Congress of the United States to the administrator of the estate of said Gardner.</p> <p>The appeal was reserved by Field, C. J., for the consideration of the full court, on the agreed statement of facts, the petition to the Probate Court for the decree of distribution, the order of notice thereon, and the service thereof and the decree thereon, such decree to be entered as justice might require.</p> <p>The following facts were agreed.</p> <p>The fund to be distributed was the proceeds of an award on account of French Spoliations, under the Act of Congress of March 3, 1891, (26 U. S. Sts. at Large, 862, 908,) being for a captured ship of which Paul Gardner was part owner, and the next of kin of the said Paul Gardner were entitled to the distribution. Paul Gardner died at Nantucket in the year 1835. His only child was a daughter, Lydia, who married one Seth Swift. Seth Swift and his wife Lydia had five children, and they all left Nantucket for Texas about the year 1832, but to what particular place in Texas was not known. Since then none of the family have returned to Nantucket, and no positive knowledge of them has ever come to their relatives or friends in Nantucket. There was a report not long after the departure of the family of the marriage of one of the daughters, but now for a period of more than fifty years no knowledge of the family or reports concerning them have reached their relatives or friends here.</p> <p>In the year 1896 notice was ordered by the Superior Court, under proceedings in that court for the distribution prior to the decision of the case of Sargent v. Sargent, and was published by this administrator in The Statesman, a newspaper published in Austin, the capital of Texas, for six consecutive weeks, for the next of kin of Paul Gardner, giving information of this French Spoliation award, but no response was elicited.* Paul Gardner’s claim on the government on account of French Spoliations was well known to his family and friends, and was valued in the inventory filed by his administrator at five thousand dollars. The persons to whom distribution is now ordered are descendants of a brother of the said Paul Gardner, and they are entitled to receive the fund in the absence of any lineal descendant.</p> <p>Notice of the petition for distribution was ordered by the Probate Court, and published as ordered. If the Probate Court had authority to make this decree of distribution, and its decree shall be a protection to the administrator in ease there should prove to be lineal descendants of Paul Gardner, then the decree of the Probate Court is to be affirmed ; otherwise, the case is to be remitted to the Probate Court for such proceedings as this court may direct.</p>

<p>Loss of Life — Master and Servant■—-Action — Negligence — Assumption of Risk — Employers’ Liability Act — Superintendent — Evidence.</p> <p>An action cannot be maintained against a street railway corporation for causing the death of an employee of mature years, who, besides an earlier experience in work of various kinds, has been for some time in the defendant’s service, and who, while engaged in lowering the truck of an electric car in the defendant’s repair shop on skids or rails from an elevated platform to the street several feet away, is injured by being struck by the handle of a windlass used in lowering the car, which is without a clutch or ratchet; but he must be held to have assumed the risk incident to the use of the windlass in the condition in which it was.</p> <p>Evidence that the foreman in a repair shop of a street railway corporation ordered two of its employees to take the truck of an electric car out of the shop, and, though directing their movements, assisted them in so doing, performing the same work that they did, will not justify a finding, in an action against the corporation for causing the death of one of them while so working, that the foreman was a superintendent or a person whose sole or principal duty was that of superintendence, under the employers’ liability act, St. 1887, c. 270.</p>

<p>Bill in equity, filed March 21, 1896, in the Superior Court, to redeem land in Springfield from a mortgage. The answer, among other defences, set up laches.</p> <p>The case was referred to a master, who found and reported the following facts. The plaintiffs are the heirs at law and devisees of one Catherine M. Fennyery, deceased, and the defendant is the administratrix de bonis non with the will annexed of one Henry E. Ransom, deceased, and is the owner, or claims to be the owner, of the lot of land described in the bill.</p> <p>The land in question was owned by Fennyery at the beginning of the year 1874, and was conveyed by her to Ransom by a deed dated February 19,1874, and duly recorded, in which the consideration was expressed to be $1,000. Ransom reconveyed the property to Fennyery by a deed dated January 24, 1877, and duly recorded, in which deed the property was expressed to be free from all encumbrances except a mortgage for $500 to Fennyery, and the consideration in the deed was expressed to be $500. On the same day, Fennyery, together with her husband, gave a mortgage, which is the mortgage mentioned in the bill and the mortgage in question, to Ransom, to secure the payment of her promissory note for $500, payable to Ransom in five years from date, with interest at the rate of six per cent per annum, payable annually; and the mortgage contained a power of sale in case default should be made in the payment of any portion of the note or interest.</p> <p>Default was made in the payment of the interest on the note, no interest having been paid thereon, and while the default continued Ransom caused to be published in a newspaper printed in Springfield, and admitted to be a suitable newspaper for the purpose, on July 1, 8, and 15,1879, a notice that, for a breach of the condition of the mortgage, the premises would be sold at public auction on August 4, 1879.</p> <p>On July 2, two copies of the published notice were cut from the newspaper and posted up in two public places in Springfield, one on the bulletin board at the city hall, and one on the bulletin board at the court house, each of the places being distant about a mile and a half from the premises. No notice of the intended sale was given to Fennyery other than by the publication and posting. Fennyery was unable to read English, but could read German, and her husband was able to read both English and German. The mortgage and note were written in English, and the notices of the intended sale were printed in English. No newspaper was taken by Fennyery, or in her family, except one printed in the German language. Neither Fennyery nor any of her family knew of the intended sale prior to the time of the sale.</p> <p>Pursuant to the notice above described the premises were sold by public auction upon the premises, on August 4, 1879, to one Dickinson, for $200, which sura was less than the fair value of the lot. At the time of the sale there were but few houses and dwellings in that portion of the city, but new streets had been laid out in that vicinity, and a fair value of the premises at the time of the sale was from $400 to $500. There were present at the auction sale only four persons ; namely, Ransom, the mortgagee, his attorney, the auctioneer’, and Dickinson, the last being there at the request and in the interest of the mortgagee. These parties arrived at the premises at about the hour advertised for the sale, and waited a little time to see if other persons would come.</p> <p>Only two bids were made for the property, the first one by the attorney of the mortgagee, who bid a sum less than $200, and the second one by Dickinson, who bid $200, under instructions from the mortgagee not to bid any larger sum, and who made the bid not for himself, but in the interest of the mortgagee. Fennyery was not present at the sale, but she was «at her residence, which was distant from the premises about two hundred or three hundred yards, and from which the premises and any persons thereon could be readily seen, but there was no satisfactory evidence that she did see any persons on the premises at the time of the auction. At about the time of the sale, but whether before or after it occurred is uncertain, she was informed by a neighbor that the lot was sold or was being sold.</p> <p>Directly after the sale, and on the same day, the mortgagee, Dickinson, and the attorney went to the office of the attorney, and a deed of the premises was made and executed by Ransom, acting as attorney for Fennyery, and in his own right under the mortgage conveying the premises to Dickinson, who at the same time executed and delivered a quitclaim deed of the premises to Ransom. No money passed in the transaction. No indorsement of any sum was made upon the note described in the. condition of the mortgage. The deeds were dated and acknowledged on August 4, 1879, and duly recorded. Whatever title Ransom took to the premises by the sale and deeds of August 4, continued in his name until his death, and passed by his will to the defendant in this suit. ‘</p> <p>“ Upon the question of the good faith of the mortgagee in foreclosing the mortgage, I find as follows : 1. All the requirements of the power of sale contained in the mortgage were literally complied with. 2. No effort was made by the mortgagee to inform the mortgagor of the intended sale, although the premises were situated in the immediate vicinity of the residence of the mortgagor, and the mortgagor did not in fact know of the intended sale before the time thereof. 3. The sum for which the premises were sold was less than the fair value thereof. 4. No person was present at the sale except those who came in the interest and at the request of the mortgagee. 5. The property was purchased in the interest of the mortgagee, and afterwards, and as a part of the same transaction, was conveyed to the mortgagee.”</p> <p>Subsequently, on February 5, 1882, and after the note had become due, an action at law was commenced by Ransom against Fennyery and her husband, to recover the balance due on the note.</p> <p>The defendants in that case appeared and filed an answer. Judgment was rendered therein on July 8,1882,' for the plaintiff, in .the sum of $471.60 damages, and $19.11 costs of suit. Execution was issued upon the judgment on August 4, 1882. After the issuing of the execution, the attorney for the defendants made to the attorney for the plaintiff a proposition to satisfy the judgment and execution if the plaintiff would deduct the sum of $40 therefrom. This proposition was accepted and the execution was satisfied by the payment by the defendants of the sum of $477.77. In the course of the negotiations for the settlement, a statement of the account of the sale was made to the attorney for Fennyery, and no objection appears to have been made thereto.</p> <p>Ransom continued to reside within the Commonwealth for more than one year after the recovery of the judgment above mentioned.</p> <p>A decree was entered, dismissing the bill; and the plaintiffs appealed to this court.</p>

Contract, on two promissory notes, dated June 13, 1893, each for $300, drawn by Harry C. Gaylord to the order of the defendant, and by him indorsed, the first being payable on June 14, 1895, and the second on June 14,1896. Trial in the Superior Court, before Wardwell, J., who allowed a bill of exceptions, in substance as follows.

<p>Petition, to enforce a mechanic’s lien. At the trial in the Superior Court, before Bishop, J., the jury returned a verdict for the petitioners ; and the judge reported the case for the determination of this court. If a petition of the North Adams Savings Bank to be admitted as a party should have been granted, or a motion of the respondent that the bank be summoned in as a party allowed, a new trial was to be ordered; otherwise, judgment was to be entered on the verdict. The facts appear in the opinion.</p>

<p>Two bills in equity, filed June 7, 1897, by shareholders in the defendant corporation, who had sold their shares to the defendant according to a written agreement providing for the appraisal and the sale of the shares, alleging fraud in the appraisal and praying for an accounting; for the ascertaining of the value of the good will of the business of the defendant; and for a decree compelling the defendant to pay to the plaintiffs the excess of the value of the shares over the amount per share which they had received.</p> <p>The cases were heard on that part of the answer in each case which was in the nature of a demurrer. It stated that the plaintiffs had a full, complete, and adequate remedy at law; that they were not entitled to a specific performance of the contract, in that it had been executed and that the prayer in each case was for an assessment of damages, and that they were not entitled to equitable relief; and that further they had alleged fraud and did not pray for a rescission of the contract, nor had they tendered or offered to return the consideration received thereunder, and on this ground were entitled to no relief.</p> <p>Hearing before Knowlton, J., who was of opinion that the remedy was in another form of proceeding, and, the plaintiffs not desiring to amend, reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Personal Injuries — Due Care — Negligence — Trespasser.</p> <p>At the trial of an action for personal injuries occasioned to the plaintiff while stealing a ride between two cars of one of the defendant’s freight trains, he testified that he was discovered by a brakeman and told to get off, but kept his position; that as the train was entering a station, it being the duty of another brakeman to uncouple the cars and divide the train at the point where the plaintiff was standing, the brakeman came down the ladder at the end of one of the cars for that purpose, and in a rough way told the plaintiff to get off; that the plaintiff moved his position and held to the ladder at the end of one of the cars, having one foot on a rod and one on some part of the other car; that there was a ladder of iron rods at the end of each car, one on, the right hand and the other on the left hand side of the train; that the brakeman said, “ Let go of that car,” and turned round and stepped towards the other side of the train and uncoupled the cars; and that the plaintiff did not see what he did, and when the cars separated the plaintiff fell down and was injured. From one part of his testimony it would seem that the words, “Let go of that car,” were spoken just after the brakeman uncoupled the cars, and from another part that they were spoken just before. The plaintiff knew that there was a ladder there of sufficient size and strength to hold him, and that there was nothing to prevent his holding on to it with both hands. Held, that there was no evidence of negligence on the part of the defendant, nor of due care on the part of the plaintiff.</p>

<p>Tort, against the Chelmsford Foundry Company, a corporation, and Rufus E. Lord and David D. Lord, copartners as Lord Brothers, for personal injuries received by the plaintiff upon premises owned by the Massachusetts General Hospital, in whose employ he was, in that part of Belmont called Waverly, through the alleged negligence of the defendants. Trial in the Superior Court, before Mason, C. J., who directed the jury to return a verdict for the defendants; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Loss of Life — Master and Servant — Assumption of Risk — Action — Evidence.</p> <p>A person, who has worked for his employer as a carpenter for ten years, and in another factory as a carpenter previously, and has also worked on a circular saw for three years, and who is injured, while sawing hard pine boards longitudinally with this saw, by a narrow strip which remained after sawing from the board all the strips of the desired width coming upon the teeth on top of the saw and being thrown violently forward upon him, the saw having no guard, must be held to have known and appreciated the risk of using the saw, and to hav e voluntarily assumed such risk; and no action can be maintained against his employer for the loss of his life resulting from liis injuries.</p> <p>Ka person knew and appreciated the risk of using a circular saw without a guard, and voluntarily assumed such risk, at the trial of an action for the loss of his life resulting from injuries received while using the saw, evidence offered to show what kind of guards are sometimes used on circular saws is immaterial.</p> <p>In an action for causing the death of a person, who was injured while using a circular saw without a guard, the question “ whether or not the possibility that the stick will connect with a saw where there is no guard is something that a person who is not skilled in the use of saws of this description would know,” is rightly excluded, it not appearing that the plaintiff's intestate was not skilled in the use of such saws.</p>

<p>Personal Injuries — Employers’ Liability Act — Liability of Municipal Corporation.</p> <p>Where, in an action for injuries occasioned to the plaintiff’s intestate while employed under the direction of the superintendent of streets and surveyor of highways of the defendant city in the construction of a street through a large tract of unimproved land owned by the defendant, there is no reason for holding the defendant responsible on the ground that it had taken the work out of the hands of the superintendent and surveyor upon whom the duty of performing it was cast by law, or on the ground that the city would derive an incidental advantage or profit from an increase in the value of its land, the case falls within the general rule, that cities and towns are not liable to private actions for omissions or neglect unless they are given by statute.</p>

<p>Quieting Title — Constitutionality of Statute — Trust Deed — Declaration of Trust — Equity Jurisdiction.</p> <p>The St. 1897, c. 522, "relative to suits to quiet the title to real estate,” is constitutional.</p> <p>The execution and recording of a deed of trust, which is not delivered, do not amount to a sufficient declaration of trust, where the deed shows no intention to create a trust except in the manner provided therein.</p> <p>This court has jurisdiction in equity to enter a decree removing a cloud upon the title to land, consisting of the execution and recording of a deed of trust which was never delivered, there being no adequate remedy at law; and the fact that the defendant in the suit has not done or threatened to do anything in opposition to the title of the plaintiff does not prevent the giving of the relief prayed for.</p>

<p>City — Water Rates — Statute — Equity.</p> <p>The owner of a building to which water is furnished by a city, who has been accustomed to have the water measured by a meter and to pay for it under the rules applying to water furnished through meters, cannot maintain a bill in equity against the city to restrain it from removing the meter and compelling him to pay for the water under the rules applying to unmeasured water, which is charged for at an established rate for each fixture through which it is used, and alleging that, if the meter is removed, the plaintiff “ will be obliged to pay more than twenty times as much as other water takers pay for the same quantity of water”; and the rights of the parties are not affected by the fact that the plaintiff was using a meter when he put in his fixtures.</p>

<p>Mortgage — Principal and Agent — Authority of Agent to receive Payment oj Loan — Equity — Finding — Decree.</p> <p>An attorney at law, who had been employed by B. in respect of loans of money by her and as her legal adviser, made a loan for her to A., for which a promissory note secured by a mortgage of land was given. A portion of the principal was paid by A. to the attorney, who was not expressly authorized to receive such payments, but who indorsed it on the note and paid it over to B., who did not call A.’s attention to the attorney’s want of authority to receive payments of principal; and payments of interest were also made to the attorney and indorsed by him or by B. on the note. After the maturity of the note, a further payment of principal was made by A. to the attorney, who did not hold the note at the time, and who received it for B., but concealed it from her and misappropriated the money. In many other instances the attorney had collected for B. both principal and interest on mortgage notes held by her and not in his possession at the time of payment, and she had never required notice of payments, though he generally told her within a reasonable time; and his authority to receive payments of principal or interest on A.’s mortgage was not questioned by B. until eighteen months after the second payment of principal. Held, in a suit in equity by A. against B. to redeem the land from the mortgage, that the evidence warranted a finding that the attorney was authorized to receive the payment in question for B., or at least that he was held out by her as having such authority.</p>

<p>. Contract, to recover $556, upon an account annexed, for stone furnished by the plaintiff and used by the defendant in the construction of a dwelling-house in Chelsea. Trial in the Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff contended that the stone furnished was at the request and on the account of the defendant. The defendant contended that the stone was furnished at the request and on the account of one Gibson, who-had a contract with the defendant to build the foundations in which the stone was used, and which contract included both labor and material.</p> <p>There was evidence that the plaintiff, who was the owner of a quarry at Saugus, furnished and delivered at the site of the defendant’s building, then in process of erection in Chelsea, three hundred and eighteen perch of stone during the months of August, September, and October, 1895; that the defendant made a contract with one Gibson to furnish the labor and materials necessary for building the foundations, and doing the necessary stone and brick work called for by the specifications under which the building was being erected; that this contract was dated July 29, 1895, and was signed by the defendant and Gibson on July 30,1895 ; and that one Taylor was employed by the defendant as her architect in drafting the plans and specifications, and for the usual oversight of architects, and no more.</p> <p>There was also evidence that Taylor, prior to the execution of the contract between the defendant and Gibson, and subsequently to his employment by the defendant, obtained from the plaintiff a writing dated July 29, 1895, in which he agreed to furnish the stone for the defendant’s house at a price named, and which was signed by him.</p> <p>Otherwise than as herein appears, there was no evidence that any authority had ever been given Gibson or Taylor to make any contract with the plaintiff on behalf of the defendant for the stone, the price of which was sought to be recovered in this action.</p> <p>There was evidence that Taylor supervised the work on the defendant’s premises in the erection of the house, and the preparations for the construction of the foundations; that prior to the making of the contract between the defendant and Gibson, and subsequently to the employment of Taylor by the defendant, the defendant in company with Taylor called upon the plaintiff, and in the presence of Taylor asked the plaintiff to figure upon the stone to be used in the foundations of her house, the defendant having previously left the plans of the house with the plaintiff ; and that the defendant called on the plaintiff at various times in the months of July, August, Septem¿er, October, and November, 1895, and ordered him to deliver the stone to be used in the foundations as speedily as possible, and promised to pay him therefor.</p> <p>The defendant admitted calling on the plaintiff with Taylor at the time claimed by the plaintiff, and also calling on him a number of times while the stone was being delivered, and requesting him to hurry the stone along, but contended that she did so at Gibson’s request, and denied having promised to pay for the stone; and she further denied having given either Gibson or Taylor any authority whatever to make any contract with the plaintiff in her behalf.</p> <p>On cross-examination the defendant testified that she sent Taylor to the plaintiff concerning the stone for the foundations.</p> <p>There was evidence that prior to July 30, 1895, and subsequently to the visit made by the defendant and Taylor to the plaintiff, Taylor drew up the writing above mentioned and signed by the plaintiff, and in company with Gibson visited the plaintiff for the purpose of obtaining his signature to the same, but in consequence of some dispute between Taylor and the plaintiff did not obtain the latter’s signature; that subsequently, and prior to July 30, 1895, Taylor requested Gibson to take the paper to the plaintiff to see if he could obtain the plaintiff’s signature to the same; that Gibson did so, and obtained the plaintiff’s signature, and returned the paper to Taylor; that, on the evening of July 30,1895, the defendant, Taylor, and Gibson met at the defendant’s bouse, and the paper so signed by the plaintiff was considered by them, and the contract was signed by the defendant and Gibson, who was the lowest bidder.</p> <p>Taylor testified that he procured the paper from the plaintiff for the benefit of whoever should be awarded the contract for building the foundations.</p> <p>With reference to the visit of Taylor and Gibson to the plaintiff, the plaintiff’s counsel asked him, “ At the time Taylor and: Gibson came there, what was the conversation ? ” To which the-witness replied, “ Taylor asked me if I would furnish the good-quality of stone, and said he would get the rough stone at some: other place.”</p> <p>To this question and answer the defendant objected, but the judge admitted the same; and the defendant excepted.</p> <p>The witness further testified, subject to the defendant’s objection and exception, that in this conversation Taylor said he came for the defendant.</p> <p>With reference to the above mentioned visit of Gibson to the plaintiff on July 30,1895, the plaintiff, on re-direct examination, was asked the following question : “ Whether or not Gibson said he brought this contract for the architect the day he came down there?” To this the witness answered in the affirmative.</p> <p>The defendant objected to this question and answer, but the judge admitted them; and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Money paid—Broker — Conversion—Verdict—Action — Defence.</p> <p>A verdict for the plaintiff in an action for the conversion of stock which the defendant had bought as a broker for the plaintiff and afterwards sold, crediting the proceeds to the plaintiff, is to be regarded as establishing conclusively the plaintiff’s right to the stock, and that the sale was unwarranted.</p> <p>If A. repudiates the sale by B. of stock which the latter had bought as a broker for him, and sues for and recovers the value of the stock, A. cannot, in an action against him by B. to recover back money which he has paid for him, be permitted to allege that the sale ■yas a valid one, or, because B. has wrongfully sold his stock, to avoid liability to him for money which he has paid on his account.</p>

<p>Personal Injuries — Employers’ Liability Act — Notice of Injury — Negligence — Master and Servant—Law and Fad—Evidence.</p> <p>In an "action under the employers’ liability act, St. 1887, c. 270, it appeared that notice of the plaintiff’s injury was not given within the thirty days required by § 3. His wife testified that he was in bed almost two months after the accident, that during most of this time he knew her and talked to her, and that a good deal of the time he was conscious and knew what he was doing; and his son also testified that he saw his father almost every day after the accident, and that he was conscious nearly all the time. Held, that there was no sufficient proof that from physical or mental incapacity, within St. 1888, c. 155, it was impossible for him to give the notice within the thirty days.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ, through the careless management of an elevator in allowing it to come down upon him while he was at work by order of the defendant’s agent in cleaning out the elevator pit, several witnesses testified that the man in charge of the elevator was under certain physical disabilities. The evidence also tended to show that, on some ground not disclosed, he had been discharged about a year before the accident, but came back in about two months ; that his peculiarities and infirmities were open to observation ; that his general reputation was that of being infirm bodily and mentally, and weak, nervous, and excitable ; and that the plaintiff told him to take the elevator up to the upper hall, and told him what he, the plaintiff, bad to do in the pit. Held, that there was sufficient evidence to entitle the plaintiff to go to the jury</p> <p>Where a person is injured while cleaning out an elevator pit by the elevator coming down upon him, in an action against his employer for his injury, alleged to have been caused by careless management of the elevator, evidence that it was common knowledge in the building that complaints were made that A., the man in charge of the elevator, was not running it properly; that the janitor of the building had a talk with the defendant’s manager about such complaints ; that another employee talked with A. before the accident about the plaintiff being in the pit; and that A. was forgetful, and had a habit of screaming, if it was without cause, is improperly excluded.</p>

<p>Promissory Note — Deposition — Amendment of Writ and Declaration — Evidence.</p> <p>An objection to the admission of a deposition on account of changes made in the writ and declaration after the issue of the commission cannot avail, if, under Pub. Sts. c. 167, § 42, the court in allowing the amendments must have found that there was no change in the cause for which the action was intended to be brought.</p> <p>In an action against the maker of a promissory note he excepted to the admissibility of certain answers in a deposition which were to the effect that, shortly before the date of the note the witness sold to the defendant a windmill, tower, pump, and fixtures; that the defendant made to him certain payments in cash on the note, and that, if he had the note in his possession when the payments were made he indorsed them, but not having the note to examine he could not state positively; and that in all these matters he acted as agent for the plaintiff. In another answer, to which no objection appeared to be made at the trial, the witness said that the note was given for the windmill, etc., and he gave a full account of the transaction and circumstances. In his answer to the declaration the defendant had denied everything including the signature, and had set up a want of consideration and a failure of consideration. Held, that the defendant had no ground of exception to the admission of the answers.</p> <p>Where the plaintiff, in an action upon a promissory note, is the payee thereof, the production of the note is sufficient; and the objection of the defendant to its admission because no witness testified as to who was the holder of it cannot avail.</p>

Contract, to recover the amount of a tax assessed upon personal property of the plaintiff, a corporation organized under the laws of the State of New Jersey, for the year 1893, and paid under protest. The case was submitted to the Superior Court and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion, and in the reporter’s note thereto.

<p>Promissory Note — Foreign Law — Liability of Indorser —' ‘ Continuing Security”— Demand and Notice — Reasonable Time — Finding.</p> <p>Where, in a case tried without a jury, to show the law of another State bearing upon a particular question, certain statutes and decisions of courts in that State are put in evidence, the finding of the judge on this part of the case will not be revised, unless the statutes and decisions conclusively show, in spite of any possible inference of fact or doubts in the interpretation of them, that his finding is wrong.</p> <p>In an action against the indorser of a promissory note made and delivered in New York, payable on demand without interest, the consideration of which was a sum already due and a further sum to be advanced, where demand was made and notice given more than a year and a half after the date of the note, it cannot be said, as matter of law, that a finding of the judge, who tried the case without a jury, for the defendant was erroneous.</p> <p>If the rule applicable to an ordinary indorser of a promissory note payable on demand without interest is to be applied to an indorser before delivery of a promissory note made in another State, the consideration of which was a sum already due and a further sum to be advanced, a demand made fourteen months after the last advancement of the consideration is not within a reasonable time.</p>

<p>Petition, for the review of a judgment for costs, obtained by the respondent against the petitioner in June, 1893, in an action of tort in the Superior Court. Hearing before Barker, J., who denied the petition; and the petitioner alleged exceptions. The facts appear in the opinion.</p>

<p>Preliminary Question of Fact — Handwriting — Expert — Record of Docket Entries not Extended — Burden of Proof .</p> <p>The preliminary question, whether a witness is competent to give an opinion upon handwriting shown him, is largely a question of fact, and the determination of it by the presiding justice cannot be set aside unless it is plainly wrong.</p> <p>A copy of the record of docket entries is competent to prove the facts stated in it, if it has not been extended.</p> <p>While the question whether the burden of proving that there is or is not an extended record is upon the party offering or upon the party objecting to the docket entries does not appear to have been decided in this Commonwealth, yet, in this case, which was a complaint for larceny, the court, having assumed in favor of the defendant that the burden was upon the party offering the docket entries, stated that under the circumstances the judge was warranted in taking the statement of the District Attorney as true, and in finding from what he said and from the form of the certificate of the clerk that the record of the Police Court had not been extended.</p>

<p>Tort, for personal injuries sustained by the plaintiff in consequence of his horse becoming frightened, through the alleged negligence of the defendant’s servants in the management of a car. 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 appear sufficiently in the opinion.</p>

<p> Appeal dismissed, as there was no Judgment in Superior Court. </p> <p>In this case the appeal was dismissed, on the ground that there had been no judgment in the Superior Court, and there might be reasons why a judgment should not be entered on the finding in that court.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, while employed in the defendant’s mill in Fall River, by having his hand caught in a finishing machine upon which he was at work, through the alleged negligence of the defendant. The declaration was at common law. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for damage by fire to the plaintiff’s house in Chelsea and the furniture therein, alleged to have been caused by the obstruction of a hydrant in front of the house by the defendant company, which was engaged at the time in the construction of a sewer.</p> <p>At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the nature of which appears in the opinion.</p> <p>The case was argued at the bar in November, 1897, and afterwards was submitted on briefs to all the justices.</p>

<p>Contract, upon an account annexed, for bottles made by the plaintiff for the defendant, at the defendant’s request, at a price exceeding fifty dollars. The answer set up the statute of frauds, Pub. Sts. c. 78, § 5.</p> <p>At the trial in the Superior Court, before Hammond, J., there was no evidence of any note or memorandum in writing of the bargain signed by the defendant or by any person lawfully authorized by him, or that the defendant accepted or received any part of the goods ordered, or gave anything in earnest to bind the bargain, or in part payment. At the close of the evidence, the judge, at the request of the defendant, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Removal of Cause to Circuit Court of United States — Statute — Affidavit.</p> <p>A writ was dated October 2, 1896, and was made returnable “on the first Monday of November next.” The answer was filed on December 24, 1896, and on December 28 the plaintiff claimed a trial by jury. At the session of the Superior Court held on the first Monday of May, 1897, the defendant presented a petition for the removal of the action to the Circuit Court of the United States. There had been a previous session of the Superior Court for trials by jury, beginning on the first Monday of the preceding February, at which the action could have been tried. Held, that, under U. S. St. of August 13, 1888, § 3, 25 U. S. Sts. at Large, 433, the petition was filed too late.</p> <p>On a petition by a defendant corporation for removal of a cause from the Superior Court to the Circuit Court of the United States, the affidavit of the defendant’s president, that from prejudice and local influence the corporation would not be able to obtain justice in the State court, should have been filed under U. S. St. of August 13, 1888, § 2, 25 U. S. Sts. at Large, 433, in the Circuit Court of the United States, if any action thereon was desired.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by an alleged defect in a highway in the defendant city. At the trial in the Superior Court, before Mason, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Tenants in Common—'Partition— Will — Perpetuity — Fee Simple.</p> <p>A testator provided by will, “ All the rest, residue, and remainder of my property I give, devise, and bequeath to E., to be distributed by her among her descendants, children and grandchildren, according to her discretion.” E. brought a petition for partition of certain land owned by the testator in common with others, the testator’s interest therein being included in the residuary clause. Held, that that clause did not violate the rule against perpetuities, and that, without deciding whether E. took a fee, she had an undivided interest in the land, and was entitled to partition.</p>

<p>Sale— Conditional Contract — Action— Vendor and Vendee— “ Strike.”</p> <p>Where a contract is made for the delivery of a cargo of coal at G. for shipment, upon the condition that the seller is not to be “ responsible for loss of coal en route, nor for damages from delays of transportation, strikes, or causes beyond ” his control, if, before the coal reaches G., and while it is on a railroad, the railroad corporation seizes and consumes it, there being at the time a great scarcity of coal caused by a serious strike at the mines, although the corporation afterwards pays the seller for the coal the same price which the buyer lias agreed to pay for it, the buyer cannot maintain an action against the seller for the non-delivery of the coal.</p> <p>Where a contract is made by which the seller of goods agrees to deliver them free on board at a certain place, it is ordinarily the duty of the buyer to furnish a vessel, and the seller is under no obligation to act if the buyer does not procure the vessel.</p> <p>If a contract for the sale of coal is made upon the condition that the seller is not to be responsible for damages from delays of transportation or “ strikes,” this word is not to be restricted so as to apply merely to the case of a strike at the seller’s own mines, but includes any strike having a legitimate tendency to prevent the execution of the contract, if the seller was in the exercise of due care and diligence.</p>

<p>Equity — Fraud — Rescission of Contract — Recovery of Consideration — Mismanagement of Trust Fund — Multifariousness — Parties.</p> <p>If a person was induced by fraud to enter into a contract which, upon discovery of the fraud, he has rescinded, he may maintain a bill in equity to recover the money which he has paid and to have the contract declared void, and if he is interested as a cestui que trust in a fund which the trustee has mismanaged for his own gain, he may also maintain a bill for that; but he cannot require the court to investigate the two grounds of equitable relief in one bill which contains no averments connecting the two sets of equities, and none which show that the alleged malfeasance of the trustee prejudices his relief upon his demand for the repayment of the money so paid by him.</p> <p>A bill in equity brought by a shareholder against the trustees of an association, alleging mismanagement by them for their own gain of a fund belonging to the association, and praying for the appointment of a receiver to take possession of its property and to convert it into money and distribute it, must be brought for the benefit of all having like interests with himself, so that they may come in and share in the conduct of the suit, or they must be made defendants; and if they are so numerous as to make it impracticable to join all as parties, enough shareholders who are not also trustees should be made parties to have the interests of the shareholders as a class represented before'the court.</p>

<p>Statute — Revocation of Will by Marriage.</p> <p>The meaning of St. 1892, c. 118, entitled “An Act relative to the revocation of a will on the marriage of the testator,” is that, when the will is not made in the exercise of a power of appointment, it must be apparent on the face of the will itself that it was made in contemplation of “such marriage,” either by an express declaration in the will to that effect, or by language in the will from which such contemplation may fairly be inferred; otherwise, a subsequent marriage operates “ as a revocation.”</p>

Bill in equity, filed March 22,1897, in the Superior Court, against William C. Brennan “ and another whose name is unknown, designated Richard Roe for the purposes of this suit, copartners under the name of the American Furniture Company,” alleging that, on December 4, 1896, the plaintiff, doing business under the name of the Crescent Table Works in Jamestown, New York, recovered judgment in the Municipal Court of the city of Boston against the defendant Brennan, formerly…

<p>Incomplete Voluntary Trust — Will.</p> <p>A voluntary trust or gift, where the settlor or donor has kept the property in his own hands, subject to his own disposal, and never has informed the beneficiary of it, is not fully completed and executed, and cannot be enforced.</p>

<p>Personal Injuries — Defective Exhibition Hall — Liability of Owner to Spectator — Due Care — Negligence—Contributory Acts of Others — Action.</p> <p>An action may be maintained against the owner of a ball, who is licensed to give public exhibitions in it, and who receives from the manager of a polo team a certain sum for the use of the hall and one half of the net receipts for admissions, for personal injuries occasioned to a spectator of a game of polo by the falling of the guard rail in front of the gallery, upon which he with other spectators was leaning during the progress of the game in the hall, the rail being improperly constructed and fastened and insufficient in strength to withstand the pressure of great numbers leaning upon it, and the owner being aware that they were accustomed to do so; and the question whether the plaintiff, who acted as the others did, having no knowledge or notice of the insufficiency of the rail, was using due care, is for the jury.</p> <p>The owner of a hall in which public exhibitions are given cannot escape liability if he was negligent in the manner in which the guard rail in front of the gallery in the hall was constructed and maintained, and if a spectator who was injured by the falling of the guard rail during the progress of an exhibition there was in the exercise of due care, on the ground that other persons may have contributed to the injury.</p> <p>A person erecting and maintaining a hall for public exhibitions must use reasonable care in the construction, maintenance, and management of it, having regard to the character of the exhibitions given and the customary conduct of spectators who witness them; and the act of a spectator, who is injured by the falling of the guard rail in front of the gallery in the hall upon which he was leaning with others during the progress of an exhibition, must be judged of according to the conduct which ordinarily prudent people show under like circumstances.</p>

<p>Mechanic’s Lien — Auditor’s Report—Trial — Description of Land — Formal Objection—Conveyance of Land during Continuance of Contract—Finding of Auditor— Waste Material — Instructions.</p> <p>A petition to enforce a mechanic’s lien had been referred to an auditor, who made his report, whereupon issues were framed to be tried by a jury, and then the case was recommitted to the auditor with instructions to hear the parties and make report to the court as to all questions raised between them under such issues. The auditor afterwards made a new report, which in form was complete in itself and not merely supplemental to the original report. The first nine paragraphs contained a general statement of the case, with findings relevant to questions presented by the pleadings, but not included within the issues framed for the jury, unless within one, namely, “ Is the petitioner entitled to maintain a lien 1 ” At the trial the respondent objected to having these paragraphs laid before the jury, but the judge allowed the whole report to be put in evidence. Held, that no error appeared.</p> <p>If in the description of the land in a petition to enforce a mechanic’s lien the northern and southern boundaries are given, and the length of the northern, southern, eastern, and western lines, as well as the whole number of feet contained in the lot, and it also sufficiently appears that the lot is rectangular, or nearly so, it does not appear that the lot cannot be identified without reference to the plan of it.</p> <p>An objection to the sufficiency of the description of the land in a petition to enforce a mechanic’s lien must be taken by demurrer, and the particulars of the alleged defect pointed out.</p> <p>If the materials for which a mechanic’s lien is sought to be enforced are furnished under a contract with the owner of the land when the contract is made, by the terms of which the petitioner is to furnish such materials as shall be required in the construction of the house, a conveyance of the land by the owner while the work is going on will not defeat the lien, but it will continue until all that is called for by the contract has been done.</p> <p>The finding of an auditor, to whom a petition to enforce a mechanic’s lien has been referred, that “ the petitioner in his statement filed in the registry of deeds made a just and true statement of the amount due him for materials furnished and used in the erection of said house (which includes necessary waste), with certain exceptions,” does not show prima facie that the petitioner’s statement was not just and true.</p> <p>An instruction to the jury, at the trial of a petition to enforce a mechanic’s lien, that “ the petitioner is not entitled to any lien for materials furnished by him which were not actually incorporated in the building, he is not entitled to claim a lien for that portion of any materials furnished by him which was wasted, otherwise than as would be properly incident to the preparation of the materials for the construction of the house, and through being wrought into the house, or which were thrown away or rejected as useless or needless in erecting the building, and the burden of proof is on the petitioner to show that the materials were furnished by him as alleged in his petition, and that such materials were substantially actually used in the construction of the house,” is sufficient and correct.</p> <p>At the trial of a petition to enforce a mechanic’s lien, which has been referred to an auditor, the judge is not required, in his instructions to the jury, to rule upon the effect of findings or omissions in the auditor’s report, there being other evidence upon the several issues in the case.</p>

<p>Purchase and Sale on Margin '—Account Stated — Evidence — Wagering Contract — Action.</p> <p>It is competent to show that an account stated originated in an illegal transaction. In an action to recover a balance due upon the purchase and sale of wheat on margin, the defence to which is that the contract was a wagering contract, at common law, if there is evidence that the defendant, a broker in Boston, as principal, dealt with the plaintiff, although he carried out his contracts through his correspondent in Chicago, the plaintiff is not entitled to a ruling that “ the defendant has not shown that the contract in Chicago was a wagering contract, and therefore the plaintiff should recover.”</p> <p>In an action to recover a balance due upon the purchase and sale of wheat on margin, the defence to which is that the contract was a wagering contract, if the evidence is such as to warrant a finding that the defendant, a broker in Boston, was a principal in dealing with the plaintiff, although he carried out his contracts through his correspondent in Chicago, each keeping an account witli the other, in which the profits and losses were debited and credited, the balances being paid monthly, the plaintiff is not entitled to a ruling that “the defendant was an agent, and as such is not entitled to set up the transaction by which the money came to his hands, and therefore the plaintiff should recover.”</p> <p>If A. gives to B., a broker in Boston, an order to buy a quantity of wheat, depositing a sum as a margin, and B. buys it through C., his correspondent in Chicago, “ deliverable seller's option ” two months later, and A. shortly after the purchase orders B. to sell the wheat, which B. does at a profit, sending A. a statement of account showing a balance due the latter, in an action by A. against B. to recover such balance, the defence to which is that the contract was a wagering contract, the judge, who tries the case without a jury, is not required to find for the plaintiff, if there is evidence that the transaction was intended as a wager.</p>

<p>Bond — Genuineness of Signature — Expert ^fitness — Trial — Matter within the Discretion of Presiding Judge.</p> <p>In an action against the surety upon a bond, when the genuineness of the signature is denied, the plaintiff’s counsel may be permitted, in his argument to the jury, to comment on the failure of the defendant to call as witnesses two experts in handwriting whom he has admitted that he has consulted with reference to his alleged signature.</p>

<p>Poor Debtor,— Breach of Recognizance — Discharge in Insolvency — Execution — Surety.</p> <p>On March 20, B. was arrested on mesne process in -favor of A., returnable in a municipal court on March 30, and on the same day before a master entered into a recognizance, with C. as surety, that on or before March 30 he would deliver himself up for examination. B. afterwards gave notice that he desired to take the oath that he did not intend to leave the State, and, after partial hearing, he made a default; after which, on March 26, he filed his petition in insolvency, the first publication being on March 30, and after due proceedings obtained his discharge, which prevented A. from obtaining judgment against him, and the action was discontinued. The present action was brought by A. upon the recognizance against C. alone. Held, that the execution was properly ordered to be issued for only nominal damages.</p>

<p>Tort, for personal injuries to the plaintiff’s intestate, James Stewart, resulting in death, occasioned by his being struck by a train upon the defendant’s railroad. Trial in the Superior Court, before War dwell, J., who, at the close of the evidence for the plaintiff, directed the jury, at the request of the defendant, to return a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Indictment, alleging that the defendant, on May 11, 1897, at Randolph, in and upon Carrie E. Goldthwaite, a female child under the age of sixteen years, “ feloniously did make an assault with the intent then and there her, the said Carrie E. Goldthwaite then and there feloniously to ravish and carnally known [sic] by force and against her will, and her the said Carrie E. Goldthwaite then and there by force and against her will feloniously did ravish and carnally know.” Trial…

<p>Personal Injuries — Law and Fact — Due Care a Question for the Jury.</p> <p>In an action for personal injuries occasioned to the plaintiff by falling on a sidewalk of the defendant town, it is a question of fact for the jury whether, in view of all the circumstances disclosed by the evidence, the plaintiff was in the exercise of due care; and whether the sidewalk was in a defective condition, and whether the defendant had reasonable notice of the defect (if there was one) or with proper care and diligence ought to have known of it, are also questions of fact for the jury, who are entitled to consider the nature of the alleged defect, the amount of travel over the place where the accident occurred, its nearness to the business portion of the town, and such other circumstances as will tend to throw light on the questions at issue.</p>

<p>’ Tort, for injuries caused by the bite of a dog. The declaration was in two counts, the first of which alleged the defendant to be the owner, and the second the keeper of the dog. Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions in substance as follows.</p> <p>The plaintiff testified that he was bitten by the dog on August 9, 1895, while working in the field for William H. Winn, a farmer in Burlington.</p> <p>Winn, called by the plaintiff, testified that the plaintiff was bitten while working on his farm; that he, his son, and one Donovan were present at the time ; that he saw the dog for the first time that day at the defendant’s house, whence it followed him to his house; that he afterward saw the dog running around in the field and barking; that he commanded it twice to lie down; and that he had seen the dog fed at the defendant’s house, and thought that it was kept there, for he went there frequently and nearly always saw the dog there. On cross-examination, he testified that the dog was in the habit of following him from the defendant’s house, was often at his place, was sometimes kept in bis house for an hour at a time, and played with his children ; that he had allowed it to follow him ; and that on the day when the plaintiff was bitten he had not attempted to drive the dog home, but had allowed it to remain on his place an hour or more before the biting.</p> <p>One Donovan, called by the plaintiff, testified that he saw the dog come into the field where he and the" plaintiff were working ahead of Winn, and looking as if it came from bis house; that the dog ran around the field barking, and he heard Winn command it once to lie down; and that he had seen the dog before at Winn’s house, and also once or twice at the defendant’s house.</p> <p>Winn’s son, called by the plaintiff, testified that he saw the dog bite the plaintiff; that he heard his father call out two or three times to the dog to lie down; that he had seen the dog at the defendant’s house three or four times a week for a year or more; and that he had heard the defendant call the dog by its name, and thought be had seen her feed it.</p> <p>There was also evidence for the plaintiff that the license for the dog for 3894 and 1895 was issued in the name of the defendant, on the application of her brother in law.</p> <p>There was evidence for the defendant that the dog in question had been given to the plaintiff’s daughters by one Linnell, in consideration of their having taken care of his dog; that they accepted the gift, and owned and took care of the dog from that time until it was killed.</p> <p>The defendant testified that she knew of the dog being brought to her house, but that she had never seen the license, and had never authorized her brother in law to have the dog licensed in her name, and did not know that it had been done.</p> <p>She was then asked by her attorney, “Who kept that dog on this place, if any one?” The judge excluded the question, and said, “ She may state any facts, and then the jury may say who kept the dog under the statute.” The defendant excepted; and her attorney then asked, “Whether or not you kept the dog upon this place ? ” The judge excluded this question, and the defendant excepted. On cross-examination the defendant testified that she had occasionally spoken to the dog, and might sometimes have petted and fed it, and that the dog was kept in the house at night.</p> <p>At the close of the evidence the defendant requested the judge to instruct the jury: 1. that the averment that the defendant is the “ owner ” of the dog which produced the injury is to be strictly proved; 2. that the averment that the defendant is the “ keeper ” of the dog which produced the injury is to be strictly proved; 3. that by the word “ owner ” in the statute is intended only the one in whom the legal title is vested ; 4. that by the word “ keeper” in the statute is intended, not the owner, but some person who harbors the dog; 5. that a person therefore cannot be liable as both the “ owner ” and the “ keeper ” ; 6. that the question whether one is the “ owner ” is a mixed question of law and fact; 7. that the question whether one is the “ keeper ” is purely a question of fact; 8. that one injured by a dog is entitled only to exact compensation doubled; 9. that where the action is brought by a minor there can be no recovery for the loss of his time or services, for medical attendance, or for the expenses of treating the injury, or caring for or maintaining him during the continuance of the injury; 10. that the plaintiff is entitled to recover for the actual pain and suffering, both physical and mental, and for any loss in his physical capacity directly attributable to the injury; 11. that the plaintiff is not entitled to recover for apprehended results which have never happened; 12. that even if the defendant had been at any other time the “ keeper ” of the dog, she would not be liable as the “ keeper ” for the damages occasioned in this action, for the reason that the dog was then upon the premises of another, and being there harbored, in her absence, by one or more of the persons there.</p> <p>The judge gave the first, second, third, sixth, eighth, ninth, tenth, and eleventh prayers for instructions, and refused to give the fourth, fifth, seventh, and twelfth; and the defendant excepted. The judge ruled that there was no evidence which would warrant a jury in finding that the dog was kept by Winn; and the defendant excepted.</p> <p>The jury returned a verdict for the defendant on the first count, and for the plaintiff on the second count; and the defendant alleged exceptions.</p>

<p>Tort, for the conversion of wearing apparel and of household furniture given to the plaintiff by Caroline M. Richardson. The case was referred to an auditor, who found in substance that the plaintiff had been employed for many years as a domestic in the house of Mrs. Caroline M. Richardson, who, on September 28, 1888, in anticipation of her decease, which occurred on October 31, 1888, requested the plaintiff to bring into her chamber from the various places where they were kept the articles of wearing apparel in question ; that she and the plaintiff looked them over together; that Mrs. Richardson, after telling the plaintiff how sick she was, that she should not live long and that the plaintiff had been good and faithful to her, and that she wanted to give to the plaintiff her clothes and some other things, then and there gave to the plaintiff the wearing apparel and the furniture in her sitting room outright as and for the property of the plaintiff, subject only to her recovery from her illness, and that the plaintiff never lost her title to the property nor the right to its posession, although she allowed it to remain there until after Mrs. Richardson’s death; that Mrs. Richardson left a will, from the probate of which an appeal was taken on April 23, 1889, and dismissed on May 19, 1890; that Sara Richardson, one of the defendants and a daughter of Caroline, living in the same house with her, and Brooks, one of the executors, wrongfully refused to allow the plaintiff, upon leaving the house in November, 1888, to take away the property in question, although it then belonged to her, and she had the right to its possession, and had made demand therefor on both of them; and that there was no evidence sufficient to justify a finding against the defendant Gedney K. Richardson, but that there was a conversion of the property of the plaintiff by the other two defendants.</p> <p>At the trial in the Superior Court, before Hammond, J., the plaintiff testified that on the morning of September 28, 1888, at the request of Mrs. Richardson, all the articles of wearing apparel were brought from the various places where they were kept into her chamber, and, she after looking them over with the plaintiff one by one, pointed out the articles of furniture, asked the plaintiff to examine each, and then said that she would not live long, that the plaintiff had been faithful to her, and that she could have all the clothing and furniture, and that if she had any trouble in getting the things to go to Mr. Brooks, who had sworn to the donor to see that her gifts were carried out; that after the gift the furniture remained substantially as it was before, but the clothing was replaced in closets and drawers, although one or two articles of wearing apparel were afterward worn by the donor. The plaintiff further testified that a few days after the death of Mrs. Richardson she obtained permission of Brooks to take the things away, and after Sara Richardson’s refusal to allow her to take them away, she saw him again and he refused to let her have the things, because, as he alleged, she had induced certain persons to contest the will of Mrs. Richardson ; that in a conversation with Sara Richardson she said that Mrs. Richardson “gave me all her things already; they are all mine; I am to take them ”; — to which Miss Richardson replied, “ No, you shall not take them ” ; —and in another conversation, when Miss Richardson had some underclothes and collars, she said, “ Lizzie, I wish to give you those” ; — to which the plaintiff replied, “ Miss Sara, all those things are mine ; I shall take them; Mrs. Richardson gave them to me, and I am going to take them —and that Miss Richardson then said, “ No, you will .not.”</p> <p>Julia Scollard, a sister of the plaintiff, testified that she was present during the conversation and heard Mrs. Richardson say she could not get well; that her sister had been faithful many years, and therefore gave her all the things, saying, “ They are yours, and you can take them away when I die”; and she was with her sister when Brooks told her she could not have the things “ because of the part she took in the will contest.”</p> <p>Sara F. Richardson, one of the defendants, testified that no mention of the gift was made to her; that for two months preceding her mother’s death there was no change in the disposition or arrangement of the things claimed by the plaintiff; that so far as she knew they were all in their usual places; and that she never refused to let the plaintiff take them, but simply refused to give them to her.</p> <p>Gedney K. Richardson testified that previous to Mrs. Richardson’s death he and she lived in adjoining houses; that the goods claimed by the plaintiff were never in his possession or in his house; that he consulted frequently with Mrs. Richardson in the month preceding her death, and never noticed any change in the arrangement of the furniture or other things claimed by the plaintiff; that Mrs. Richardson’s condition was not considered serious until two weeks before her death; and that her condition about the time of the alleged gift was one of cheerfulness.</p> <p>The will of Mrs. Richardson gave to the plaintiff and to her sister Julia five hundred dollars each, and to Sara F. Richardson - her house “ with all the furniture and articles of ornament therein.”</p> <p>At the conclusion of the case the defendants requested the judge to instruct the jury: “ 1. that upon the evidence the plaintiff cannot recover against Gedney K. Richardson; 2. that upon the evidence the plaintiff cannot recover against Francis A. Brooks; 3. that upon the evidence the plaintiff cannot recover against Sara F. Richardson; 4. that there is no evidence that Gedney K. Richardson ever had possession of these goods; 5. that the evidence will not justify a finding that Francis A. Brooks ever had possession of these goods; 6. that the evidence will not justify a finding that Sara F. Richardson ever had possession of these goods; 7. that there is no evidence of a demand and refusal as against Gedney K. Richardson; 8. that the evidence will not justify a finding that a demand for the goods was ever made on the defendant Brooks, and that he ever refused to deliver them; 9. that the evidence will not .justify a finding that a demand for the goods was ever made on Sara F. Richardson which she unreasonably and wrongfully refused to grant; 10. that the evidence will not justify a finding that there was a completed gift to the plaintiff.”</p> <p>The judge declined so to do, and submitted, the case to the jury, who returned a verdict for the plaintiff; and the defendants alleged exceptions.</p> <p>At the argument in this court it was orally admitted by the plaintiff that the verdict against Gedney K. Richardson had been set aside, and that the action had been discontinued as to him.</p>

<p>Petition, to enforce a mechanic’s lien, filed by Charles E. Nutter and another, intervening petitioners, in a suit commenced by Joseph H. Davis to enforce a like lien against the same estate, notice of which was given by him to the owner of the building, and to all other creditors having liens of the same kind upon the same estate.</p> <p>At the hearing in the Superior Court on a motion to dismiss the petition, before Richardson, J., it appeared that the intervening petitioners ceased to labor on or to furnish labor for the building on February 13, 1897; that on May 10, 1897, their attorney entered an appearance for them in the suit of Davis v. Arthur, and that on June 28,1897, they filed a petition claiming a lien.</p> <p>The judge dismissed the petition, the petitioners appealed, and, at the request of the parties, the judge reported the case for the determination of this court.</p> <p>If the' order dismissing the petition was correct, it was to be affirmed; otherwise the motion to dismiss the petition was to be overruled.</p>

Contract, to recover the amount of a deposit. The case was submitted to the Superior Court, and, after judgment for the plaintiff in the sum of $464.77, to this court, on appeal, upon agreed facts, in substance as follows.

<p>Tobt, for personal injuries occasioned to the plaintiff, through the alleged negligence of the defendant in placing in front of his premises in Boston a pile of stones, one of which fell upon the plaintiff, who was ten years old at the time of the accident. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions, which appear in the opinion.</p>

Contract, by the administratrix of the estate of James E. Farwell, upon an account annexed, to recover the price of labor on certain books. Trial in the Superior Court, without a jury, before Richardson, J., who allowed a bill of exceptions, in substance as follows. The books in question were prepared by the defendant for advertising his business as a dentist.

Indictment, for the alleged bribery of a police officer. After verdict of guilty and before judgment the defendant moved in arrest of judgment, assigning various reasons therein. The Superior Court overruled the motion ; and the defendant appealed.

Contract, upon an account annexed, by a real estate broker, to recover commissions for services alleged to have been rendered the defendant in relation to three parcels of land in Somerville, designated as the Hanley, Linnehan, and Sanborn estates, respectively. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Tort, for personal injuries occasioned to the plaintiff while upon the platform of the defendant’s station at Quincy. Trial in the Superior Court, before Bishop, J., who ruled that the plaintiff was not entitled to recover; directed the jury to return a verdict for the defendant; and reported the case for the determination of this court. If the ruling was right, judgment was to be entered on the verdict; otherwise, the case was to stand for trial. The facts appear in the opinion.</p> <p>The case was argued at the bar in December, 1897, and after-wards was submitted on briefs to all the justices.</p>

<p>Composition Proceedings — Laches — Statute — Equity — Pleading.</p> <p>In this case, which was a bill in equity praying that the court would order a meeting of the creditors of an insolvent debtor for the proof of claims, the court said that, even were it in its power so to do, the bill might well be dismissed on demurrer on the ground of the plaintiff’s failure to aver due diligence, or an excuse for the want of it.</p> <p>If a creditor fails to present his claim at a hearing conformably to the provisions of St. 1890, c. 387, entitled “ An Act relating to composition with creditors in insolvency,” he loses his right to have it proved, and the debtor, or person depositing the money with the register, is entitled to have the money refunded.</p>

Tort, by the mortgagee of personal property, against Joseph H. Blatt and Christian Zahner, for the conversion of the property, which was attached by Blatt, a constable, on a writ against the mortgagor. Zahner was defaulted. Trial in the Superior Court, without a jury, before Sheldon, J., who found for the plaintiff; and the defendant Blatt alleged exceptions. The facts appear in the opinion.

<p>Personal Injuries—Defective Hoisting Apparatus erected by Landlord for Use of Tenants — Evidence — Due Care — Action.</p> <p>In an action for personal injuries occasioned to the plaintiff, while hoisting coal for a tenant of the defendant’s building, by the breaking of the hoisting apparatus which was attached to the rear of the building as a part of the original structure by the defendant and intended to be used by all the tenants of the building, evidence that, within a few days after the accident, the defendant put another apparatus in place of the broken one and had ever since maintained it for the use of the tenants, is admissible upon the question of control of the apparatus; and evidence directed to the question whether the defendant made repairs on the building is also admissible. Holmes, Knowlton, & Lathrop, JJ., dissenting.</p> <p>If a hoisting apparatus is attached to the rear of a building as a part of the original structure by the owner, who retains general control of it, and is intended to be used by all the tenants of the building, and if there is evidence that the apparatus was not suitable, a person who, while hoisting coal for one of the tenants, is injured by the breaking of the apparatus, is entitled, in an action against the owner for his injury, to go to the jury upon the question whether the defendant had exercised due care in maintaining a proper apparatus. Holmes,</p> <p>Knowlton, & Lathrop, JJ., dissenting.</p>

<p>Contract, to recover a commission on a sale of real estate in Boston. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>About July 20, 1895, the defendant employed the plaintiffs to sell a certain building in Boston, telling them that he wished to sell it within ten days, as he needed money for a special purpose, and that he would put it exclusively in their hands for sale. At the end of the ten days, a sale not having been made, the defendant told the plaintiffs he had obtained the money he needed for the special purpose, but that he wished the plaintiffs to continue to try to sell the property, fixing no limit as to time. Thereafter the plaintiffs, or their employee, made various efforts to sell the property, particularly to one Arioch Wentworth, who was a large owner of real estate, and well known to brokers as a man likely to buy real estate like that in question. Finally, an employee of the plaintiffs, one Parker, who had the matter in hand, told the defendant that he thought Wentworth would give $66,000 for the property. The defendant said he would take $66,000. This was communicated to Wentworth, who told Parker that he had examined the building, and found that it was not as available for use in connection with an adjoining building owned by him as he had supposed, and that therefore he would not give $66,000 for it, but possibly might give $63,000 if the property were offered to him at that price. The defendant refused to sell at that price. This was during the last of August. Nothing further was done by the plaintiffs, or their employees, with Wentworth, except that Parker afterward, when seeing him in regard to another piece of property, told Wentworth, who brought up the subject of the defendant’s property, that he thought he was about to make a sale of the latter; that he had an offer of $65,000 for it, and that he expected the seller and buyer would meet half way, and that there seemed to be only $1,000 between them. He had no other interview with Wentworth after this, prior to the sale of the property. The property was sold on September 12 to Wentworth by a broker named Bowker, who had been familiar with the property for years, and had known Wentworth for a long time. Bowker testified, and this was uncontradicted, that, having learned the property was for sale, he saw the defendant, and afterward Wentworth, with whom he had several interviews. Finally, Wentworth told Bowker that, if he could get the property for $63,000, to come and see him. Bowker then saw the defendant, and told him he could get $63,000 if the defendant would sign an agreement of sale. The defendant did so; the sale was consummated; and the defendant paid Bowker a commission. This took place on September 11 and 12. Wentworth testified that, when he had his last interview with Parker, the latter said that another man stood ready to take the property, and Wentworth replied, “ Very well, I am done ”; and that he never gave Parker any price which he would pay for the property. The plaintiffs received from the defendant, on September 13, a letter stating that he withdrew the property from their hands.</p> <p>The judge refused to give certain rulings requested by the defendant, and gave certain instructions to the jury which are recited in the opinion.</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

Bill in equity, filed February 19, 1896, by Charles H. Goulding and five others, the school committee of Peabody, alleging that on May 9, 1844, at a meeting of the town of Danvers, it was voted to convey the sum of $9,220, being the town’s share of surplus revenue deposited with it under St. 1837, c. 85, to trustees to hold the same in trust, and, in each year in which the town of Danvers should raise by taxation and appropriate for its town schools an amount equal to three…

<p>Writ of entry, to recover a parcel of land in Lincoln. Plea, nul disseisin, with a specification of defence that the tenant, acting under St. 1872, c. 188, took and held the land for the purposes of its waterworks, and had acquired a prescriptive right therein. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the tenant; and the demandant alleged exceptions. The facts appear in the opinion.</p>

<p>Fire Insurance—Insurable Interest — Description of Subject Matter—Gaming Policy— Other Insurance — Defence — Premature Action — Arbitration.</p> <p>A. made a contract with the B. insurance company, by virtue of which he was constituted its sole agent, and was to receive as compensation for his services a sum equal to a certain percentage of the gross receipts, and also a sum equal to a certain percentage of the net profits of the business of the company. While this contract was in force, the C. insurance company issued to A. a policy of insurance against loss by fire or lightning to a certain amount, also “ on his interest in profits under contract with the ” B. company, provided, among other conditions, that the latter company sustained losses by fire between certain dates of an amount stated. Held, in an action on the policy, that A. had an insurable interest in the property insured by it; that the subject matter of the insurance was sufficiently described; and that the policy was not a gaming or wager policy.</p> <p>It is no defence to an action on a policy of insurance, providing that the policy shall be void if the insured then has or shall thereafter make any other insurance on the property without the consent of the insurer, that the assured took a policy in another company, either before or after the policy sued on, and containing the same provision as that policy; and the fact that the assured has a suit pending against the other company is immaterial.</p> <p>If there is no dispute between the insurer and the insured as to the loss incurred until more than sixty days after the latter has rendered his statement of loss, the insurer cannot contend that an action on the policy is prematurely brought because no proceedings have been had under the arbitration clause of the policy.</p>

<p> Second 'Deposition of same Witness. </p> <p>A second deposition of a witness may be admitted in evidence, although it contains testimony on some of the same subjects as are contained in the first deposition.</p>

<p>Writ of entry, to recover possession of a parcel of land in Somerville. Plea, nul disseisin. Trial in the Superior Court, before Wardwell, J., who directed the jury to return a verdict for the demandants; and the tenant alleged exceptions, which appear in the opinion.</p>

<p> Equity—Decree warranted by Pleadings. </p> <p>On an appeal from a decree entered by a single justice, dismissing a bill in equity with costs, the evidence was not before the court; the only papers before it were the pleadings, the only question of law was whether such a decree properly could be entered under the pleadings, and there were no such admissions in the answer as would prevent the entering of such a decree. Held, that the decree was warranted by the pleadings, and must be affirmed.</p>

<p>Petition, to establish the truth of exceptions. The Bar Association of the city of Boston had filed in the Superior Court a petition against the present petitioner, seeking for his removal from his office of attorney at law. The hearing was before Dunbar, J., who granted the petition, and entered an order of removal. The present petition to prove exceptions did not set forth that there was any request for rulings on matters of law, but an argument was addressed to the court, supported by citations of authorities, and a brief of the argument was handed to the court. There was no statement that the counsel desired to save any exception, or that the court understood that it was so desired. The decision was rendered June 15, 1896. After this the respondent (the present petitioner) moved for a rehearing, on the grounds that the finding was against the evidence and the weight of the evidence, and against the law. The court declined to hear an argument on this motion, and an exception was taken. The court then ordered a decree of removal from the bar to be entered, and an exception was taken.</p>

<p>Two ACTIONS of contract, brought by George M. Woodward, administrator de bonis non with the will annexed of Elijah Wilbur, the first against the administrator of the estate of Pella L. Wilbur, who was executrix of the will of Elijah Wilbur, and the second against a surety upon her bond, which bond was given to the plaintiff as judge of the Probate Court for the County of Bristol.</p> <p>The material portions of Elijah Wilbur’s will were as follows : “ First, I give and bequeath to my children, Elijah M. Wilbur, Zibeon W. Wilbur, Mary L. Wilbur, and Pella L. Wilbur, ten dollars each, to be paid to them by the executrix in six months after my decease. Second, I give and bequeath to my beloved wife, Pella L. Wilbur, all my real and personal estate of whatever name, for her sole use and benefit so long as she remains my widow, except the legacies to my children. Third, I ordain and appoint my wife, Pella L. Wilbur, as executrix of this my last will and testament.”</p> <p>Hearing before Field, C. J., who reserved the case for the consideration of the full court. If the actions could be maintained, judgment was to be entered in each case for the penal sum of the bond, and the amount for which execution should issue was to be referred to an assessor, with such directions, if any, as the full court might think proper to give. The facts appear in the opinion.</p> <p>The case was argued at the bar in October, 1897, and after-wards was submitted on briefs to all the justices.</p>

<p>Trespass on Land—Equity Jurisdiction—Finding of Master—Way by Prescription and Dedication — Great Pond — Colony Ordinance — Right of Access to Pond over Private Land.</p> <p>A bill in equity, in aid of an action at law for trespass on the plaintiff’s land, alleging that the defendant has so trespassed on many occasions, and threatens to continue such acts regardless of the plaintiff’s rights, and is insolvent and unable to satisfy an execution for damages, may be maintained to restrain the defendant from committing further acts of trespass.</p> <p>The master, to whom a suit in equity to restrain the defendant from trespassing on the plaintiff’s land bordering upon a great pond had been referred, found that for more than one hundred years there had been a well known and defined roadway extending from the town or public way across a certain railroad location over and along the plaintiff’s land to a larger tract, which with his land constituted a certain point, so called; that said roadway had been used and travelled by hunters, fishermen, picnic parties, celebrators on public occasions, and by whomsoever chose, without objection and without obstruction, until the plaintiff erected a barrier across the road and prevented the defendant from entering thereon; and then stated that he did not find that this travel had been of a nature, or an extent, or under a claim of right, which would give the public an easement by prescription over said roadway as a public way. Held, that the facts found by the master were not inconsistent with a finding that the public had not acquired a right of way by prescription, and did not, as matter of law, show that there was a public way by dedication.</p> <p>The provision of the Colony ordinances of 1641 and 1649, that “ it shall be free for any man to fish and fowl ” on great ponds, and to “ pass and repass on foot through any man's propriety for that end, so they trespass not upon any man’s corn or meadow,” was intended to limit the passing and repassing to unimproved and unenclosed lands lying on the ponds, and is to be construed with reference to the condition of things existing when the ordinances were adopted.</p> <p>A person has no right to cross, without permission, the land of another for the purpose of gaining access to a great pond upon which it borders, in order to cut and carry away ice therefrom, without being deemed guilty of trespass.</p>

Tort, by the mortgagee of certain personal property, for its conversion. At the trial in the Superior Court, before Lilley, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Sale — Agency — Instructions — Evidence — Interest.</p> <p>At the trial of an action for the price of certain goods, the defendant contended that the goods were furnished by the plaintiff through the defendant as his agent, to be used by a third person under an arrangement that the defendant should not pay for the goods until he had collected the price from such person. The judge, after submitting this contention to the jury, with the statement that, if the defendant bought the goods for the third person, they could not find that payment was to be postponed until after he had made his collection from such person unless there was an agreement to that effect, instructed them that “ it would not follow that, because he was acting as an agent, he was not to pay for the goods until he collected his money ”; but that, if he was an agent only and sold the goods for the plaintiff to a third person, who was disclosed to the plaintiff, the latter should look to the buyer and not to the defendant for his pay. Held, that the defendant showed no ground of exception.</p> <p>The answer to an action for the price of certain ropes alleged that the defendant did not buy the ropes from the plaintiff, but sold them as the plaintiff's agent to a third person as being suitable in quality to do certain work; that through the plaintiff’s fault the ropes were unsuitable in quality to do such work; that the buyer was dissatisfied with the ropes, and had not accepted them as fulfiling the contract; and that the defendant had not settled with the buyer for the goods, and nothing would be due the plaintiff until such settlement. At the trial, the defendant offered to prove “ that two-inch diameter ropes are unfit to run in a one-and-three-quarter-inch diameter groove, and that the delivery of two-inch ropes is not a good delivery of ropes one and three quarters inches diameter.” Held, that the evidence offered was rightly excluded.</p> <p>Where a bill for goods sold contains on its face the words, “ Terms thirty days,” and the buyer makes no objection, his assent to such terms will be implied, and interest will begin to run after the expiration of the thirty days if the amount of the bill is not paid, in the absence of any express agreement as to the time when payment shall be made or when interest shall begin to run ; and the fact that in a subsequent statement of account interest is not charged will not, in the absence of a settlement upon the statement, deprive the seller of the right, in an action for the price of the goods, to recover interest according to the terms of the original contract.</p>

<p>Tort, by the mortgagee of certain personal property for its conversion. Trial in the Superior Court, before Sherman, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions. If the notice required by Pub. Sts. c. 161, § 75, was sufficient, or if the defendant had authority to waive it and the evidence was sufficient to authorize the jury to find a waiver, the verdict was to be set aside; otherwise, it was to stand.</p>

<p>Pleading'—Amendment — Discretion of Presiding Judge — Equitable Defence at Law — Statute — Evidence.</p> <p>When an equitable defence, under St. 1883, c. 223, § 14, is not pleaded at law within the time allowed for filing an answer, and a request is made to allow an amendment to the answer setting up such a defence, the power of the court to allow such an amendment is governed by the Pub. Sts. c. 167, §§ 42,43; but the allowance of amendments, however, is within the discretion of the court, and no exceptions lie to the refusal of the court to allow an amendment in the exercise of this discretion.</p> <p>Where there is nothing in the exceptions which enables the court to say that certain questions put by counsel and excluded by the court called for evidence which would have been admissible under the issues raised by the pleadings, the exceptions must be overruled.</p>

<p>County Commissioners — Proposal for Public Work — Award — Contract — Vote — Agreement to make Contract.</p> <p>Where a proposal for doing a public work, and an award made thereon, look to the future execution of the contract, such award is not necessarily a contract of any kind, nor an agreement to enter into a contract based upon the proposal; it is at most a matter to be determined whether such an agreement exists, upon a consideration of the terms and purposes of the award construed in the light of the existing circumstances.</p> <p>County commissioners advertised for proposals for building a bridge, specifying, among other provisions referring to the contract, that the person to whom the contract should be awarded would be required to “execute the contract within six days from the date of notification of such award and the preparation and readiness for signature of the contract,” and in case of failure to do so the certified bank check which was required to accompany the proposal should be forfeited to the county; and providing for a contract according to a form furnished to the bidders. A. submitted a proposal to the commissioners, who voted “ that the bid of A. is accepted, and that the contract thereon be awarded to ” him. Held, in an action by A. against the county, that the vote was not an agreement to enter into a contract with him.</p> <p>Whether, since St. 1897, cc. 137, 153, it is in the power of county commissioners to bind a county by a preliminary agreement to enter into a future contract for the construction of a public work, queere.</p>

<p>Contract, to recover damages for the refusal of the defendant to allow the plaintiff to perform the duties of architect in the erection of a building. The case was sent by the Superior Court to a referee.</p> <p>At the hearing before him, it was admitted that the defendant was a corporation and, at a duly called meeting, appointed a building committee, with full power of obtaining plans and specifications for a new building in Springfield, and also to make all contracts for the erection and completion of such building. The referee, after hearing certain evidence, directed that the plaintiff make an offer of proof of the whole case in writing, in order that such ruling might be made thereon as to bring conveniently before the court the questions of law involved.</p> <p>The plaintiff thereupon submitted an offer of proof, upon which-the referee ruled that, as matter of law, it was not sufficient to maintain the plaintiff’s case; and reported such question of law." to the court.</p> <p>The award of the referee was returned into court, and the-defendant moved that such award be accepted and confirmed. Mason, C. J. so ordered, and directed judgment thereon for the defendant; and the plaintiff alleged exceptions.</p> <p>The facts appear in the opinion.</p>

<p>Appeal, from the order of a judge of the Superior Court, overruling the defendant’s motion to dismiss for want of proper service upon him. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1897, and after-wards was submitted on briefs to all the justices.</p>

Bill in equity, filed September 26, 1896, by the trustee under the will of Catherine Johnson, to obtain the instructions of the court as to the construction of the will. The material portions of the will are as follows: “ First. It is my will that all my just debts and funeral expenses be paid by my executor hereinafter named as soon after my decease as can conveniently be done. “ Second.

<p>Use and Occupation—Husband and Wife—Parent and Child—Contract— Law and Fact — Services Rendered — Action — Evidence.</p> <p>A man who marries a widow, whose first husband died seised of certain premises which at his death he was occupying with his wife and two children, is not liable to an action for use and occupation of the premises brought by one of the children after the death of her mother, who survived the other child, the latter dying intestate and without issue, and who never had dower assigned to her, there being no children born of the second marriage, and no express contract on his part before his wife’s death to pay for the use of the premises, which he occupied from their marriage until her death.</p> <p>Where a step-child is cared for, supported, and treated in all respects as one of her step-father’s family, and the relation between him and her is that of parent and child and not that of master and servant, she is not entitled, as matter of law, to maintain an action against him for services rendered by her.</p> <p>In order to warrant the submission to the jury of the question whether there was an understanding or agreement between a step-father and his step-child, who is a member of his family, to pay for services rendered by her, there must be circumstances from which they fairly would be justified in finding that there was such an understanding or agreement. If there are no such circumstances it is the duty of the court to take the case from the jury.</p> <p>Evidence tending to show that, while a step-daughter, who had formerly lived as one of her step-father’s family, was away from home working for a dressmaker, her mother said to her in the presence of her step-father, “ that she did not need to work there because she would get just as much at home,” and that thereupon she left the dressmaker and came home and did housework, is not sufficient, with nothing more, to show a contract upon which to found an action by her against her step-father for services rendered.</p> <p>At the trial of an action by a step-daughter against her step-father for use and occupation of the premises where he lived with her and her mother from the time of his marriage to the latter until her death, the premises having been owned by her first husband and occupied by the family until his death, and also for services rendered by the plaintiff as a domestic, the judge excluded evidence offered to show that no married woman’s certificate that the defendant’s wife was doing or proposed to do business on her separate account (the premises being used for a boarding house business) was filed; that the defendant had said that, during the time the plaintiff worked in the house, there was a substantial sum of money put in the bank for her in his name, in trust for her mother, and that after she made a claim for wages he drew it out; and that since he came to Boston he had received property and had money in the bank as a result of the business; and also the fair rental value of the house during the time it was occupied by the defendant. Held, that no error appeared.</p>

<p>Two petitions, praying that the defendants suffer such judgment as the court might impose as a penalty for contempt. Hearing before Holmes, J., who reported the cases for the consideration of the full court. The facts appear in the opinion.</p>

<p>Bill in equity, filed May 29, 1897, in the Superior Court, by Seymour W. Stevens and Sarah E. Stevens, his wife, against Esther Cohen and George Cohen, her husband, to remove a cloud upon the title to certain land in Boston. At the hearing, a decree was entered for the plaintiffs; and they appealed to this court. The facts appear in the opinion.</p>

<p>Contract, to recover for professional services. The case was submitted to the Superior Court, and, after a pro forma finding for the defendant by Fessenden, J., to this court, on appeal, upon agreed facts, the nature of which appears in the opinion. If the plaintiff was entitled to recover, judgment was to be entered for the amount of his account, with interest; otherwise, judgment for the defendant.,</p>

<p>Contract, upon a policy of insurance issued by the defendant to the plaintiff, doing business under the firm name of James O. Gray and Company. At the trial in this court, before Lathrop, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Contract, upon an account annexed, for services rendered by the plaintiff in furnishing music to the defendant. After the former decision, reported 168 Mass. 519, the case was tried in the Superior Court, without a jury, before Sheldon, J., who found for the defendant; and both parties alleged exceptions. The facts appear in the opinion.</p>

<p>Three actions of tort, for personal injuries sustained by the plaintiffs respectively, and for damage to a pair of horses and a wagon owned by the plaintiff Le Blanc, by reason of a collision with an electric car of the defendant. The cases were tried together in the Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant is the owner of an electric street railway between the cities of Lowell and Lawrence, and maintains a pleasure resort on the line of the railway known as Glen Forest. The plaintiff Blanchard ran the plaintiff Le Blanc’s job wagon on a share of what he, Blanchard, made, and the plaintiff Raymond was in the employ of Blanchard.</p> <p>On July 11, 1896, the plaintiffs had been to Lowell to deliver a load of furniture and were returning to Lawrence. At a point about five miles from Lawrence the tracks of the defendant come upon the highway from private land, and continue on the highway to Lawrence. The plaintiffs testified that between five o’clock and nine o’clock in the evening, at which latter hour they left Lowell, they each drank two glasses of beer, but the evidence was that they were sober. The plaintiffs Le Blanc and Blanchard testified that they lay down upon some bagging in the wagon and slept during a part of the journey. Shortly before they reached the place of the accident, Le Blanc and Blanchard rose from the floor of the wagon and were sitting on the sides of the wagon at the time of the accident and Raymond was driving the horses. The plaintiffs also admitted that they were perfectly familiar with the road, having driven over, it often; and that, as they passed Glen Forest on the night in question, they heal’d and saw people at the grove, and knew that the cars of the defendant were likely to follow them. The night was still and bright but not moonlight, and within fifty feet of the place where the accident occurred a large electric arc light was burning.</p> <p>The scene of the accident was on Lowell Street about fifty feet east of Margin Street, which crosses Lowell Street at right angles. The general direction of Lowell Street is east and west, and from Milton Street, which is three or four streets west of Margin Street and parallel therewith, there is a sharp descent on Lowell Street and for a short distance after a level stretch, and just west of Margin Street and at the- place where the accident occurred there is another sharp descent on Lowell Street. Between Margin Street and the place where the accident occurred, there are, on the right hand side of Lowell Street, three or four shade trees, the branches of which overhang the street, the lowest branch being about eight feet above the street.</p> <p>At the place of the accident the defendant maintains a double line of tracks in the middle of the street, and the distance from the nearest rail to the curbstone on the right hand side of Lowell Street at the place of the accident, looking towards the east, is ten feet. The outside width of the wagon was six feet six inches, and the defendant’s car, which was an open one, projected beyond the rail about seventeen inches. At the time of the accident the plaintiffs were driving on the right hand side of the street and their horses were walking, when the defendant’s car, which was proceeding in the direction in which the plaintiffs were travel-ling, struck a corner of the wagon and threw the plaintiffs to the ground, causing the injuries complained of, and killed one of the horses and injured the other.</p> <p>Evidence was introduced in behalf of the plaintiffs, but contradicted by the witnesses for the defendant, from which the' jury would be justified in finding that the car of the defendant was being negligently run at a high rate of speed.</p> <p>The plaintiffs and some of the plaintiffs’ witnesses, who were passengers on the car, testified that they did not hear the noise of the car, nor any signals of warning from the gong on the car.</p> <p>The motorman and conductor testified that, from the time the car turned from Milton Street on to Lowell Street, the gong was sounded at intervals at the street crossings, and they and another witness for the defendant, who was a passenger, testified that from a point three hundred feet from the place of the accident the gong was sounded continuously; and that the motorman shouted a warning to the occupants of the wagon.</p> <p>The plaintiff Raymond, who was driving, admitted that he was sleepy and drowsy, and the plaintiff Le Blanc, who was sitting on the side of the wagon behind Raymond, and who testified that Raymond was under his direction and control, testified, on cross-examination, that he did not hear the car coming until he saw it when it was about one hundred yards away; that he looked at the wagon and thought it was clear of the track; that, thinking there was plenty of room for the car to go by without striking the wagon, he said nothing to the driver; and that he did not hear the motorman shout.</p> <p>The plaintiff Blanchard, who was sitting on the other side of the wagon and behind Raymond, testified, on cross-examination, that he was looking toward the way the horses were going, and did not see the car until just as it was upon them; that he did not hear any noise; that he should say when he saw the car it was “ about a yard or an acre away or so ”; that it was “ probably as far as from here to Essex Street ” (which is about one hundred and twenty-five feet) ; that he thought the driver had time enough to get out of the way; that he knew he was in the way, and told him to get out of the way; and that he heard Le Blanc tell him so, and he attempted to pull out of the way, but he did not “get out of the way when he was struck.”</p> <p>The accident occurred at about eleven o’clock at night, the street was unpaved except between the tracks, and there was testimony that the singing of the trolley wires could be heard for a distance of six hundred feet. There was evidence that the arc light emitted a sound that would, to some extent, counteract the noise of the trolley wire. There were no other vehicles or obstructions of any kind in the street at the place of the accident, nor was there anything which obliged the plaintiffs to drive upon the tracks of the street railway.</p> <p>The evidence tended to show, and the motorman admitted, that he made no attempt to stop his car except when the car was about to strike the wagon ; and that his intention was to run right by the wagon without stopping his car, but the car was stopped within sixty feet of the place where the accident occurred.</p> <p>Upon these facts, the defendant asked the judge to rule that there was not sufficient evidence of due care upon the part of the plaintiffs, and that the plaintiffs assumed the risk of the injuries which they sustained; but the judge refused so to rule.</p> <p>The jury returned a verdict for each of the plaintiffs; and the defendant alleged exceptions.</p>

<p>Tax — Non-residents — Statute — Notice of Assessors to bring in Lists.</p> <p>The only persons to whom the notice of the assessors to bring in lists is to be given, under Pub. Sts. c. 11, § 38, are inhabitants of the Commonwealth; and under § 72, any time before filing a petition for abatement is seasonable as to non-residents.</p>

Appeal, from the order of a judge of the Superior Court, allowing the defendant’s motion to dismiss for want of proper service upon him. The facts appear in the opinion.

<p>Larceny — Evidence.</p> <p>At the trial of an indictment for breaking and entering a shop with intent to commit larceny and for committing larceny therein, evidence that the owner of the shop found the stick broken with which one part of the door had been fastened is competent, because it tends to show that the shop had been broken into by somebody.</p> <p>At the trial of an indictment for breaking and entering a shop with intent to commit larceny and for committing larceny therein, the district attorney, after putting questions relating to the defendant and in connection therewith, asked a witness, “What was the defendant doing when you got off the carl” The question was objected to in form and substance. Held, that, while it did not appear what the answer was, and therefore the court did not know that it was prejudicial to the defendant, yet the question in the connection in which it was put apparently related to the conduct of the defendant, and therefore it could not be said that the court erred in allowing it to be put.</p>

<p>Petition, filed January 4, 1898, for a writ of mandamus to issue to the respondent, as Treasurer of the Commonwealth, compelling him to receive from the petitioner a deposit of one hundred and fifty thousand dollars, pursuant to § 23 of St. 1895, c. 464, entitled “ An Act to incorporate the Massachusetts Ship Canal Company.”</p> <p>Hearing before Holmes, J., who, at the request of the parties, reserved the case for the consideration of the full court upon the petition, return, and the agreed statement of facts. The facts appear in the opinion.</p>

<p>Tort? for personal injuries sustained by the plaintiff, through the alleged negligence of the defendant. Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The evidence tended to establish the following facts. The defendant was the owner of an electric street railway between the cities of Lowell and Lawrence, arid owned and maintained a grove as a pleasure resort on the line of the railway. The grove was fitted up by the defendant as a place of public recreation and amusement, with certain permanent fixtures, among which were a pavilion used for band concerts, a large platform or stage for amusement exhibitions, and a large number of benches situated north of the stage for the accommodation of those who witnessed the exhibitions. The stage was seven feet in height, and the benches, the nearest of which was about twelve feet from the stage, were arranged in sections, with aisles between, and were situated upon rising ground which sloped up and away from the stage, so that each bench was raised a little higher than the one in front of it. The defendant entered into a written contract with one Gorman, a theatrical and amusement manager, under which the latter furnished and managed certain attractions at the grove for a period of ten weeks during the summer of 1896, a different attraction being presented each week, and the materials, instruments, and appliances used in the exhibitions other than the permanent fixtures were furnished either by Gorman or by the exhibitors employed by him. In addition to the money consideration named in the contract, the defendant paid for newspaper advertising, the copy for which was furnished by Gorman, for placarding certain posters also furnished by the latter, and carried posters upon its cars, the object of the advertising and posters being to attract people to the grove. No admission fee was charged, the defendant getting its profit from carrying the people who attended these exhibitions, which were given in the afternoon and evening of each day.</p> <p>During the week beginning on August 10, 1896, one of the attractions so announced and advertised, and furnished under the contract, consisted of an exhibition by a man named Unthan, who was born without hands, and who, among other things, was advertised to give and did give an exhibition of marksmanship. The performer sat in a chair at the west end of the stage, and at the east end of the stage, directly opposite him and about twenty feet away, was a table upon which rested a butt to receive the bullets which the performer discharged from a rifle at various small objects, which were either placed on the table or held in the fingers of Unthan’s assistant a few inches in front of the butt. This butt consisted of a steel plate about half an inch thick and about a foot square, to which was fastened a spruce plank about two inches thick and of the same size as the plate, and the butt rested in an iron easel which was provided with three or four legs a few inches in length, the rear legs being a little shorter than the others so that the butt inclined slightly away from the performer. The easel was not fastened to the table, nor was the table fastened to the stage. The wooden and metallic parts of the butt were fastened together by two iron screws near the top of the butt, which were inserted through holes in the steel plate and screwed into the wood, and by a round steel or wrought iron spike, which was inserted through a hole in the steel plate near the bottom of the butt, and driven through the wood, and which was bent down and clamped on to the wooden surface of the butt for about two inches. All of the appliances, such as the butt, rifle, easel, and table, used in the exhibition, and the person who acted as stage assistant, were furnished by Unthan under his contract with Gorman. The exhibition consisted of various feats of marksmanship, such as shooting at the bowl of a clay pipe, then at the stem of the pipe, knocking the ashes off a cigar, and shooting first at the flat side of a playing card, and afterwards at a playing card so placed that its edge would be towards the performer. The marksman loaded, managed, and fired the rifle with his lower limbs, the legs, feet, and toes doing the work ordinarily done by arms, hands, and fingers, and the exhibition was one that had been given at various theatres and places of amusement, in and out of doors, in this country and in Europe, for ten years and upwards.</p> <p>The plaintiff testified that he had been at the grove on three or four other occasions to witness other exhibitions than this, and was familiar with the location of the stage and seats; that he saw the advertisement of the exhibition to be given by Unthan, and knew it was to be an exhibition of shooting; that on the evening of August 12, 1896, he went to the grove in one of the cars of the defendant, and selected his seat upon one of the benches; that there was a large number of people present; that he sat on either the fifth or seventh bench from the front, and was either thirty-three feet or thirty-eight feet north from the end of the stage on which the table and butt were placed, and was so situated with reference to the butt, which was a foot or a foot and a half above his head, that a line drawn from him to the butt would intercept the line of fire at a little less than a right angle; that he had a full view of the performance on the stage; that he saw the performer come on the stage, and saw the assistant arrange the butt on the stage, and knew the shooting was about to begin; that he saw the position of the butt and the position of the performer, saw him shoot first at the bowl of the clay pipe, and then at the stem of the pipe, which was hit and broken by the bullets, and then saw the performer shoot at a playing card, which was placed in such a position as to bring its edge towards the performer, and heard it announced by the assistant, and knew that the performer was going to try to hit the edge of the card.</p> <p>There was evidence that the butt was so placed that the side farthest from the seats was slightly nearest to the performer; that two or three shots had been fired at the pipe ; that when a bullet missed the object it made a noise as it struck the butt; that the first shot fired at the card missed the card and was heard to strike the butt; and that immediately after the firing of this shot the plaintiff felt a pain in his eye, jumped from his seat, put his hand to one of his eyes, and exclaimed that he was hurt. The plaintiff testified that he did not hear or see any missile. A medical witness for the plaintiff testified that he found a cut one third of an inch long on the plaintiff’s eye, of such a nature as to indicate that it was done by a very thin, sharp object; that the cut was- on the under edge of the upper lid; that at the extreme edge of the lid and just under the lashes the skin was shaved off clean, as if with a knife; that underneath he found a cut in the sclerotic coat extending over the eye; that it was a clean cut through the coats of the eye; and that then he examined with an ophthalmoscope and saw some blood, and he thought he saw a small foreign object inside of the eye. On cross-examination, he testified that he could not swear that there was a foreign body in the eye, but that the condition might be caused by a foreign body, or by other things, such as .inflammation; and that the eye might have been cut and the object not have gone in, and it might have been caused by an object cutting across the eye.</p> <p>The wooden part of the butt was put in evidence at the trial. It had been used three times before, twice on the day preceding. The bullets after penetrating the wood were flattened against the steel plate, and it was possible to run the blade of a case knife between the wood and metal parts of the butt. On the morning after the accident the butt was taken apart, and pieces of flattened bullets fell out from between the two parts of the butt and on to the stage. The medical witness for the plaintiff testified that, on the. morning after the accident, he saw upon the stage what he should call thin shavings of bullets, none of them more than two or three feet away from the table; and that a piece of these shavings might be an adequate cause of the injury to the plaintiff’s eye. The defendant provided two or three special police officers, whose duty was to move about the grounds and preserve order; but the only persons upon the stage were the performer and the assistant who managed the exhibition, and who were both in the employ of Gorman. Nobody in the employ of the defendant exercised any supervision or control over the performance.</p> <p>The defendant asked the judge to rule as follows:</p> <p>“ 1. Upon all the evidence in the case, the plaintiff is not entitled to recover. 2. There is no evidence in the case upon which the jury would be justified in finding that the plaintiff was injured by the negligent act or omission of the defendant, or of any servant or agent of the defendant. 3. The contract between the defendant and Gorman, by virtue of which the latter furnished and managed the exhibition and provided the appliances, was a lawful contract, and the defendant was not responsible unless the exhibition was in its nature such that it would necessarily bring wrongful consequences to pass, unless guarded against, and the defendant failed to exercise due care to prevent harm.”</p> <p>The judge refused to give the first and second rulings requested, and, instead of the third ruling requested, instructed the jury as follows:</p> <p>“ The contract between the defendant and Gorman, by virtue of which the latter furnished and managed the exhibition and provided the appliances, was a lawful contract, and the defendant is not responsible unless the exhibition was in its nature such that it would necessarily or probably cause injury to some person present under the defendant’s invitation, unless guarded against, and the defendant failed to exercise due care to prevent harm.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract or tort, for negligence in the sale of certain articles of personal property. Writ dated September 21,1895.</p> <p>The first count of the declaration alleged that, in February or March, 1892, the defendants, as copartners, were real estate agents and brokers in Boston, and were then employed as such by the plaintiff to sell certain furniture belonging to her; that they, acting as her agents, notified her that one Patten would purchase the property for $1,200, and she informed them that she would accept the offer; whereby they became bound to exercise due care, and to exercise their best ability, skill, and experience in completing the sale and protecting the plaintiff’s interests; that she, believing them to be exercising care, ability, and skill and relying thereon, at their request sold the furniture to Patten for the aforesaid sum, receiving as security a mortgage of certain land in Revere, signed by one McNamara as grantor; that Patten was irresponsible and unable to pay his debts, and the mortgage was nearly worthless because the land subject to it was then subject to an earlier mortgage amounting to nearly its whole value; and that these facts were known or might have been known to the defendants had they exercised proper care and diligence.</p> <p>The second count, after stating the offer of Patten made to the plaintiff through the defendants as her agents, alleged that the plaintiff, believing that the offer was a cash offer, notified the defendants that she would accept it; that the defendants, to induce her to sell the furniture to Patten on credit, fraudulently represented that he was the owner of a house and land in Revere; that he had spent all his ready money in constructing said house, and that he would give her a mortgage thereon which would be ample security for the payment of the purchase money, although the land was subject to a small first mortgage; that the plaintiff, believing the representations were true, was thereby induced to sell her furniture to Patten, receiving as security for the price thereof a mortgage on land in Revere signed by one McNamara ; that the mortgage was not ample security for the payment of the price, because the land was subject to a prior mortgage amounting to nearly its whole value; that thereafter the plaintiff borrowed $300 from the defendants, whereupon the defendant Bartlett offered her a paper which he falsely represented was a receipt for the money loaned ; and that the plaintiff, relying on said representations and believing that said paper was a receipt, entirely surrendered her judgment to the defendant Bartlett, and signed the paper, which was not a receipt, as the defendants well knew, but was an' assignment of the mortgage to Bartlett. The declaration further contained a statement that both counts were for the same cause of action.</p> <p>Answer: 1. a general denial; 2. that in September, 1892, the plaintiff filed a bill in equity in the Supreme Judicial Court for the county of Suffolk, in which the same facts alleged in the two counts of the declaration were set forth and pleaded; that thereafter the bill was dismissed; and that by the decree in that suit, all of the matters contained in the bill being the same as those contained in the declaration in the case at bar, were fully adjudicated and decided.</p> <p>Trial in the Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that, in 1892, she conducted a lodging house on Washington Street in Boston, and owned the furniture therein ; that, having advertised to sell the furniture, one of the defendants, Everett, called on her on February 12, 1892, looked over the furniture, and asked her what she valued it at, to which she replied that it cost about $1,700, but that she would leave it to him to do the best he could for her for cash, as she was compelled to sell; that about a month later one Patten, accompanied by one McNamara, came to look the house over, and two or three days later he was there with the defendant Bartlett, who did all the business ; that he said Patten had concluded to take the house and would pay $1,200, and the plaintiff said she would accept it; that Bartlett then said, “ There are conditions; he cannot pay you all cash now, for he has built him a fine house down at the beach, and in finishing it up he has put a small mortgage on it, but he is in business; he took all he could afford to from his business, and had to put on a very small first mortgage ” ; and in answer to the plaintiff’s question whether it was anything that would interfere with her security he replied, “ Not at all, she was perfectly secure ”; that in reply to her statement that she must have some money for rent he replied, “ I will pay the rent and let you have $100 ”; that he further said that he would collect the money when due and forward it to her; that he knew the mortgaged property well, and had sold houses of the same character and could sell that one for $3,800; that he said it was Patten’s property, and said nothing about McNamara; and that, in answer to the plaintiff’s question whether Patten was a responsible and reliable man, he said, “ Yes, perfectly so.”</p> <p>The plaintiff also testified that she did not inquire about Patten, or look at the land, for her business was with Bartlett, from whom she derived all her knowledge of the property; that she signed two or three papers in the presence of Bartlett, Patten, and a Mrs. Hall. Subject to the exception of the defendant, the plaintiff was asked, “ Whether or not in making this trade or performing the transactions which were performed you relied at all upon the skill and judgment of Mr. Bartlett with regard to the value of the real estate and the mortgage in Revere ? ” To this question she replied, “ Entirely; I relied entirely on him.”</p> <p>The plaintiff further testified that in June, 1892, she called on Bartlett at his office to know why the agreement was not kept, and was told that Patten had sickness in his family and had failed in business, and that McNamara was insane, but that her security was perfectly good, and that in a few days Bartlett would foreclose and settle all bills; that late in August, not having heard from him meanwhile, she saw him again, when he told her that he had taken a deed of the property which was perfectly secure ; that he had a prospect of selling it at private sale, which would avoid a sacrifice; and that after her last conversation with him she brought a suit in equity in this court against him, the other defendant, Everett, and one Llewellyn H. Bartlett.</p> <p>The bill alleged in substance that the defendants in the case at bar, purporting to act as agents of the plaintiff in regard to the sale of certain property, and in regard to certain transactions relating thereto, described in the bill, conspired together by means of false and fraudulent representations and dealings in regard to those transactions to defraud her, and did defraud her, out of her property and the proceeds thereof, of which it was alleged that they and Patten, McNamara, and Llewellyn H. Bartlett, who were their instruments, had possession, and which in equity and good conscience they held as trustees for the plaintiff. The prayer of the bill was that they should be compelled to transfer and assign the property to the plaintiff.</p> <p>After a hearing in this court, the bill was dismissed, on December 29, 1893.</p> <p>The plaintiff further testified that, at the hearing on her bill in equity, she gave substantially the same evidence as at the trial of the present action, and that the present defendants, Patten and McNamara, and one Watson, who examined the property for her in Revere, also testified at the same hearing ; that she then testified that she signed the assignment of the mortgage, which she could have read, although she did not so do; that the paper was doubled over, but there was no attempt at concealing the contents ; that when the mortgage was brought to her by Bartlett, she asked why it was for $1,200, and not for $900, and he replied, “ Sign this receipt for $300, and it is all the same,” and she signed it, as well as a bill of sale of her property, which she delivered to Patten, and from him received the McNamara mortgage and the note for $1,200; that she then testified that she had inquired as to the responsibility of Patten, and whether the first mortgage would interfere with her security, how the mortgage came to be given by McNamara and who he was, but did not ask whether he was worth anything; that she also testified at that trial that she understood that Patten could not pay her $1,200 in cash, but was to give her a second mortgage, and that the first mortgage was small; that she did not know where the $300 came from as to which Bartlett said, “ I will get you $300, of which $100 will be for you and $200 for rent, if that will last you ”; and that she knew the mortgage was given by McNamara, but supposed that he was a copartner of Patten.</p> <p>One Watson, a real estate broker, testified for the plaintiff that the value of the McNamara property inRevere was about $2,300.</p> <p>The defendant Bartlett testified that at the time of the transaction with the plaintiff a part of his business was the buying and selling of lodging houses; that he supposed Patten to be doing a fair and comfortable business, but did not know how much he was worth, although, so far as he knew, Patten’s financial standing was good, and he had a good business reputation as an honest man; that McNamara, was in some kind of business in a store outside of Boston, and subsequently became insane ; that Patten took possession of the plaintiff’s house, and after a short time sold the furniture to one Florentine for $1,000; that in August, 1892, McNamara, at the request of the witness, transferred his equity in the real estate at Revere to the witness’s brother, Llewellyn H. Bartlett, a travelling salesman, who had previously bought mortgages on lodging houses.</p> <p>On cross-examination he testified that he gave evidence at the hearing on the bill in equity; that at that hearing he was asked as to his agency for the plaintiff, as to what he was to sell to her and what he had sold for, as to Patten and his financial standing, as to the purchase of property for $1,200, as to the signing of the papers and the transactions at his office regarding the same, as to the collateral note and the raising of $300, as to the length of time he had been familiar with the property at Revere, as to his belief as to its 'value, as to the condition of the property and its title, as to the assignment of the mortgage, as to the first mortgage and the amount thereof, as to his conversation with the plaintiff regarding it, as to whether Patten was at that time the owner of any property in Revere, as to the conversation in which he stated that Patten had spent all his ready money in constructing a house, and as to the conversation in which he was alleged to have stated that there was only a small first mortgage which amounted to nothing on the house.</p> <p>Bartlett further testified that at the previous trial evidence was introduced as to the value of the property in Revere; that there was a false representation that the note was a receipt, and that when the plaintiff signed it she believed it to be a receipt, and had been defrauded in that way; that at the former trial he testified that when he called on the plaintiff to submit Patten’s offer he told her that Patten had no ready money, but that a friend of his would give a second mortgage on a piece of property in Revere for the furniture for Patten ; that the plaintiff said she could not accept the mortgage because she needed ready money,- that the witness said he could raise her $300 on the mortgage, and in reply to her inquiry as to the size of the first mortgage told her that it was $1,800, and that in his opinion there was margin enough on the value of the property to secure the payment of $1,200; that he offered to take her to the place and show it to her, but she declined to go; that he never made the statement that Patten was building a house for himself upon the property, or that there was only a small first mortgage upon it which amounted to nothing, or that the property was worth $3,800; that the plaintiff, at the office of the witness, signed the assignment of the mortgage to Llewellyn H. Bartlett and the collateral note, both of which were read to her, and that she said nothing; and that he did not state to her that the paper which she signed was a receipt, and would in no way affect the title to the mortgage.</p> <p>Llewellyn H. Bartlett testified for the defendant that in 1892 he received an assignment of the mortgage of the property at Revere and advanced $300 for it, and that he testified to the same effect at the previous trial, except that there he testified that he took the mortgage at his brother’s request.</p> <p>The plaintiff, in rebuttal, denied that at the former trial she testified that she did not think the defendants exercised proper skill, ability, or care in protecting her interest in the sale, or that she had saidxthat Bartlett did not properly investigate the financial responsibility of Patten or McNamara, or that she testified that she said Bartlett ought to have procured a mortgage on her own property, and that he was negligent in not so doing, and that so far as she remembered the testimony at that trial in regard to the matters set forth in the declaration as constituting a fraud upon her was substantially the same as in the present case.</p> <p>This was all the evidence material to be reported. At the close of the evidence the defendants requested the judge to rule: 1. that upon all the evidence in the case the plaintiff could not recover; 2. that the decree in the suit in equity was a bar to the present action. The judge ruled that the decree was a bar to the count in tort, but not to the count in contract, declined otherwise to rule as requested, and, under instructions to which no exception was taken, submitted the case to the jury upon the count in contract.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>Petition for Damages caused by Change of Grade of Highway—Statute — Question for the Jury.</p> <p>Where specific repairs of a highway in changes of grade and structural formation were ordered by the board of aldermen of the city in which the highway is located in proceedings which specifically determined the nature and extent of the changes to be made, a petition by the owner of land situated near but not adjoining the highway for damages done to his land thereby is to be considered as brought under and to be governed by the provisions of Pub. Sts. c. 49, §§ 68, 69, and should be submitted to the jury.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by falling into a coal hole in Eliot Street, in Boston. Trial in the Superior Court, before Fessenden, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The coal hole was situated about eighteen inches in front of a house held by the defendant under a lease, and upon land embraced in the lease. The house and the adjoining buildings for a considerable distance towards the west stood back from the line of the street about three feet and eight inches, and the coal hole was two feet or more outside the street line. The buildings in the other direction, with their projections, came out to the line of the street. The space in front of the defendant’s building, and of the adjoining buildings towards the west, was paved with the same kind of material, and on the same level, all the way from the buildings to the curbstone, and was used as a sidewalk, and there was nothing in the usual conditions to give notice that it was not part of the street except the way in which it generally was used by the tenants for the deposit of barrels, etc., and the fact that the steps of the house next to it on the side from which the plaintiff was coming came out to the line of the street.</p> <p>At the time of the accident, a coal wagon was backed up to the side of the wall in front of the premises, and coal, which had been ordered by the defendant, was being delivered from it by the servants of a coal dealer. One of these had uncovered the coal hole and was shovelling the last of the coal out of the wagon upon the sidewalk. The other stood by the hole, doing such work as was necessary to help the coal pour down the hole. There was testimony from several witnesses that the coal covered the sidewalk from the curbstone to the coal hole, and two others testified that it extended from the curbstone to the line of the defendant’s house. The plaintiff, a Spanish woman, who according to her own testimony had just come from Spain and had never seen coal put through a coal hole before, stepped upon the steps of the next building above mentioned, thence stepped upon the coal, and then with her other leg went into the coal hole, which was thirty inches from the corner of the steps.</p> <p>The accident occurred at a little before six o’clock on the evening of November 15, and there was testimony that it was dark, and that there was no daylight. There was evidence from the plaintiff and from another witness who was present, that they saw nobody about the coal hole before the accident. One of the two men who were delivering the coal was in the wagon from which he had just shovelled the last of the coal, and was busy with his team, and he did not see the plaintiff until she was being lifted out of the hole. The other testified that he was about three feet from the coal hole, that he could not say what he was doing, that he thought his head was turned around looking up Eliot Street towards Tremont Street, which was in the direction opposite to that from which the plaintiff was coming. He also said in his testimony, “ I was not shovelling coal at that time; I was trying to keep myself on my feet. There was a throng of people going up there each way.”</p> <p>The defendant requested the judge to direct a verdict for the defendant. The judge refused so to do, and the defendant excepted.</p> <p>The defendant requested the judge to rule as follows:</p> <p>“ 1. Upon all the evidence the plaintiff was a trespasser, and cannot recover. 2. There is not sufficient evidence of negligence on the part of the defendant to warrant the jury in finding a verdict for the plaintiff, and they should return a verdict for the defendant. 8. That the defendant is not liable for injuries caused by the existence of an unguarded hole upon the premises in question if the plaintiff’s injuries were due to the fact of its proximity to the highway where the plaintiff was a traveller, and from which she wandered without invitation of the defendant. 4. If the plaintiff went upon the premises in the defendant’s control without invitation, express or implied, and fell into the coal hole in question, she cannot recover for injuries caused thereby. 5. That the defendant had the right to use the sidewalk with the coal hole in question for the purposes of having coal put into her cellar, and might have maintained trespass for any interruption of such enjoyment of it; that the plaintiff had no right to walk upon the coal discharged there for that purpose, .and in so doing interfered with the defendant’s proper enjoyment of her easement, was a trespasser, and cannot recover, if it is found that the defendant at the time of the injury was in possession of the premises in question. 6. That if the coal dealer was still in possession of the coal discharged upon the sidewalk there at the coal hole, and the control of the coal hole remained with the defendant, the plaintiff in walking upon the coal at and about the hole was a trespasser, and cannot recover. 7. That the plaintiff was bound to travel, if she continued on her way, in that part of the highway at the time not in use by the coal delivery, and remaining open to travel, and in not doing so proceeded at her peril, and cannot recover.”</p> <p>The judge gave rulings numbered 3 and 4, and declined to give rulings 1, 2, 5, 6, and 7; and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in November, 1897, and after-wards was submitted on briefs to all the justices.</p>