Volume 172 — Massachusetts Reports

<p>Instructions — Exceptions — Evidence for the Jury — Agency—Conversion — Weight of Evidence.</p> <p>Where, in an action of tort for the conversion of certain personal property, it is necessary to submit the question at issue to the jury, there being evidence to support the contention of each party, and it is done in a form not objected to and the only exception taken was to certain portions of the charge, which are set forth in the bill of exceptions, and the whole charge is not reported, but it appears that other instructions not excepted to were given, it must be assumed that appropriate instructions were given if the jury should find that the defendant was acting merely as the agent of the plaintiff.</p> <p>The weight of the evidence is not for this court to determine, nor is the question before it whether there is any evidence for the jury, if this is conceded.</p> <p>Where a party to an action contends that on the evidence reported certain principles of law are involved, upon which the jury should have been instructed, and these do not appear in the instructions given, but it appears that the party has picked out a single paragraph of the charge to insert in the bill of exceptions, and it does not appear that he asked for any instructions, or, if he did ask for them, that they were not given, he shows no ground of exception, as instructions should have been requested.</p>

<p>Petition, under St. 1890, c. 428, as amended, by the mayor and aldermen of Newton, for the abolition of certain grade crossings in that city. Hearing in the Superior Court, before Richardson, J., who reported the case for the determination of this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in December, 1897, and afterwards was submitted on briefs to all the justices except Holmes, J.</p>

<p>Action founded on False and Malicious Statements inducing a Master to .discharge his Servant — Pleading.</p> <p>Whatever may be the form of declaration for inducing masters to discharge their servants, by threats, intimidation, or force, when the cause of action is alleged to be that the defendant by false and malicious statements induced a master to discharge his servant, it is essential that the statements made should be substantially set out in the declaration, so that the court may see whether any such effect as is alleged could reasonably be attributed to the statements, and that the defendant may know what he is called upon to meet. It is not necessary that the statements of themselves should be defamatory. Holmes, ICnowlton, & Morton, JJ. dissenting.</p>

<p>Bill in equity, filed May 4,1896, in the Superior Court, to restrain the prosecution of an action at law. At the hearing a decree was entered for the plaintiff; and the defendant appealed to this court. The facts appear in the opinion.</p>

<p>Petition to the Superior Court, for partition of real estate in Boston. Trial without a jury, before Hammond, J., who found for the respondent ,• and the petitioner alleged exceptions, which appear in the opinion.</p>

<p>Certiorari — Practice — Constitutional Law — Sewer Assessments — Statute.</p> <p>Where a case is set down for hearing on a petition for a writ of certiorari to quash a sewer assessment and on the answer, all material facts well alleged in the answer and all material facts well alleged in the petition which are not denied or put in issue by the answer, if these facts are consistent with the record of the respondent, must be taken to be true.</p> <p>Certiorari is a proper remedy to try the question whether assessments made under St. 1892, c. 402, entitled “ An Act relating to sewers in the city of Boston,” are invalid for any reason disclosed by the record, or because of tl)e unconstitutionality of the statute."</p> <p>Where, under St. 1892, c. 402, entitled “An Act relating to sewers in the city of Boston," a sewer has been laid out in a strip of land which, though called a street, is not a street but is private property, as are the lots of land bordering thereon, the method of laying assessments on such lots prescribed by the statute is unreasonable and disproportionate; and the statute in this respect is unconstitutional.</p>

<p>Alleged Error in Sentence — Habeas Corpus — Writ of Error.</p> <p>It seems that exceptions will not lie in a hearing upon a petition for the writ of habeas corpus.</p> <p>The general rule is that, where the court has jurisdiction and errs merely in regard to the punishment, relief will not be granted by habeas corpus, but the remedy is by a writ of error, in which the mistake can be corrected and such sentence pronounced as should have been imposed; although in exceptional cases relief may be granted by habeas corpus or questions of constitutionality considered.</p>

<p> Appeal from Judgment of a District Court. </p> <p>A plaintiff can appeal to the Superior Court from the judgment of a district court in his favor, if the judgment is less than the amount claimed in the declaration.</p>

<p>. Liability of Stockholder of Corporation organized in another State.</p> <p>By the statutes of Kansas the liahility of a stockholder of a corporation there organized to pay the debts of the corporation is several, and may he enforced by an action against the stockholder in a court of competent jurisdiction in the State where the stockholder resides, and can he served with civil process.</p>

<p>Tort, for personal injuries sustained by the plaintiff while in the defendant’s employ. Trial in the Superior Court, before Bond, 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, against Israel L. Currier and David A. Curry, filed July 12, 1897, in the Superior Court, seeking to have certain conveyances set aside and for other relief. The defendants filed a demurrer, assigning as grounds therefor: 1. That there was a full, adequate, and complete remedy at law. 2. That there was no allegation that the alleged insertion of the name of an attesting witness to the execution of a deed was made in fraud. 3.

<p>Tort, for personal injuries sustained by the plaintiff on June 14, 1897, while in the employ of the defendants as a moulder of sole leather at their factory in Westborough. The declaration contained three counts, the first at common law, and the second and third under the employers’ liability act, St. 1887, c. 270. Trial in the Superior Court, before Bond, J., who ruled that there was no evidence upon which to submit the case to the jury, and directed them to return a verdict for the defendants; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Complaint for the violation of an ordinance of the city of Worcester. At the trial in the Superior Court, before Hopkins, J., the case was submitted to the jury upon an agreed statement of facts. The defendant contended that the ordinance was void.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>“ Literary, Benevolent, Charitable, or Scientific Institution ”—Exemption from Taxation.</p> <p>Where the paramount object of a corporation, organized under Pub. Sts. c. 115, is the dissemination of theosophical ideas, and the procuring of converts thereto, and everything else is subordinate, on an appeal to the Superior Court from the decision of the board of assessors, under St. 1890, c. 127, refusing an abatement of the petitioner’s taxes, the finding of the judge that the petitioner is not a literary, benevolent, charitable, or scientific institution within the meaning of the Pub. Sts. c. 11, § 5, cl. 8, as amended by the St. of 1889, c. 465, will not be disturbed.</p>

<p>Deed — Easement — Equity.</p> <p>A deed of land in fee conveyed also “ the right to a trench or ditch, and to lay pipes therein ” from the granted premises to a certain spring on other land of the grantor, “ and the right to take the water of said spring through said trench and pipes on to said granted premises, leaving at all times a sufficient and convenient watering place of fresh water for cattle and other stock near the head of the spring, . . . meaning hereby to convey all the right which I have to the water at and near the head of said spring, except the aforementioned watering place, which is reserved.” Held, that the deed created an easement in fee for the benefit of and appurtenant to the land conveyed.</p> <p>Upon the subdivision into building lots of land conveyed by a deed which created also an easement in fee for the benefit of and appurtenant to the land, consisting of the right to take the water of a spring, each lot has an interest in the easement, and neither mere non-user nor the use upon the land of water from the city water supply will extinguish the easement.</p> <p>If a deed of land creates also an easement in fee for the benefit of and appurtenant to the land, consisting of the right to take the water of a spring, a deed, made after the land had been subdivided into building lots by an owner of a part of the land, of the right to take the water of the spring cannot extinguish the easement, nor give to his grantee a right as to an easement in gross; nor can the words “ leaving at all times a sufficient and convenient watering place of fresh water for cattle and other stock,” in the original deed, whether a reservation for the grantor’s life or an exception, avail such grantee, who cannot maintain a bill in equity to restrain a grantee of the land on which the spring is located from interference with the same.</p>

<p>Bill in equity, by the receiver of the Stoekbridge Savings Bank, to recover the sum of five thousand dollars, the property of the bank, alleged to have been misappropriated by one Frederick A. Hobbs, a former receiver of the bank, who had been removed from his office. Trial in the Superior Court, before Lilley, J., who found for the defendant Kendrick, who alone defended; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for personal injuries sustained by the plaintiff while a passenger on the defendant’s railroad. Trial in the Superior Court, without a jury, before Richardson, J., who, by agreement of the parties, reported the case for the determination of this court, in substance as follows.</p> <p>The accident occurred on a branch line of the defendant’s railroad, about ten miles in length, extending from South Deer-field to Turner’s Falls in the town of Montague.</p> <p>The plaintiff, who was about seventy years old and in good health for his age, on the day of the accident bought a ticket entitling him to conveyance as a passenger from South Deerfield to Turner’s Falls, and took one of the regular morning trains for the journey. This train was made up, in the manner usual on this branch line, of freight cars and a car known as a combination car, one part of which was fitted with seats for the conveyance of passengers and another part was adapted to carrying baggage.</p> <p>The train stopped at the passenger station at Turner’s Falls, and all passengers had an opportunity to get out. The station is situated about three fourths of a mile from the business centre, where the plaintiff was going for purposes of trade, and the defendant’s track extends from the station into the business portion of Turner’s Falls and a little beyond, to a locality where the defendant has an engine-house and turn-table. It had been the custom of the defendant to carry, without any additional charge, such passengers as chose to remain on its trains to a place known as the “Cutlery Steps,” in the business part of Turner’s Falls, and there to stop and give them an opportunity to leave the train.</p> <p>The plaintiff, on the day of the accident, had the usual opportunity to leave the train at the regular passenger station, but he preferred, for convenience and to save walking the distance of three fourths of a mile to the business portion of the town and carrying a bundle which he had with him, to ride on the train to the Cutlery Steps, and he waited a few minutes while the car was at tile passenger station until some shifting of the freight cars in the train had been done. The train, as it left the passenger station at Turner’s Falls, was made up of the combination car and one freight car ahead of the engine and three freight cars behind the engine, and it proceeded in the same order, and at the time of the accident was unchanged in its arrangement.</p> <p>The conductor was with the train until within about an eighth of a mile of the Cutlery Steps, when he stepped off without stopping the train and proceeded to attend to'his work elsewhere. The engineer did not get word to stop the train at the Cutlery Steps, and did not know there was a passenger on board. As the train approached the Cutlery Steps, the brakeman on the combination car applied the brake on that car, as he expected the train would stop there, and the plaintiff arose from his seat, and with his hand upon some part of the car near the door, waited for the train to stop; but it did not stop. The brakeman on the combination car then signalled the engineer to stop the train. The engineer applied the air brake on the engine, and “ stopped the train as quick as the brake would hold,” as he testified. The brakemen on the freight cars applied the brakes on those cars, and the train was stopped at a road crossing the track about four hundred and thirty feet from the Cutlery Steps. The trainmen testified that, at the time the signal to stop was given, the train was going at the rate of about three miles an hour; but the plaintiff testified that it was going faster ; and in stopping, the link and pin coupling, which was used in the make up of the train, allowed the cars to come together in a jerking and jolting manner, which caused the plaintiff to be jerked backward and forward and thrown against some part of the car, and he received the injuries complained of.</p> <p>The plaintiff had travelled over this branch line many times. He knew that the trains running on the branch were made up of a passenger car and freight cars; that at the time that he was riding from the- passenger station to the Cutlery Steps the train consisted of a passenger car and freight cars; and that Turner’s Falls was the end of the line. The conductor knew him, and that the busitiess portion of Turner’s Falls was his destination.</p> <p>The judge found that the jerking and jolting were greater and more severe than would occur on an ordinary passenger train run under due care; and ruled that, if the liability in respect to preventing injury by jolting and jerking and stopping suddenly is the same, and if the obligations are the same in all these respects on a freight or mixed train, such as this train was, as on an ordinary passenger train, the plaintiff was entitled to recover; but if the defendant was not liable for such jolting and jerking as were ordinarily incident to a train of this kind, the plaintiff was not entitled to recover; and found for the defendant. If the ruling was correct, judgment was to be entered on the finding for the defendant; but if the defendant was under the same obligations to the plaintiff as it would have been if the train had been an ordinary passenger train run with due care, judgment was to be entered for the plaintiff in the sum of $350.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, by the administratrix of the estate of Michael Collins, for causing his death. At the trial in the Superior Court, before Richardson.i J., the jury returned a verdict for the plaintiff j and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Libel, filed November 12, 1896, for divorce on the ground of adultery alleged to have been committed at various times and places in Springfield between April 15, 1892, and September 27, 1896. Trial in the Superior Court, before Graskill, J., who allowed a bill of exceptions in substance as follows.</p> <p>It appeared that the parties were married in 1878, and lived together until November, 1890, when the libellant took possession of a large amount of property deposited in New York, and claimed that it belonged to her absolutely; that the libellee, who at that time was living with her in New York, remained there until early in the year 1891, when he went to their country house in Belchertown, where he remained until about June 1, 1891; that a correspondence having been carried on relating to the family affairs, on May 28, 1891, he called her attention in g letter to' the relations that existed between them growing out of her action in taking the property, and asked her to tell him what she intended to do in the future ; that she answered early in June by stating that he was laboring under erroneous notions concerning her sentiments towards him; that soon after, in June, she went to Belchertown, and thereupon he went to Springfield and remained there; that upon June 19, 1891, she wrote him a letter asking him to return and forget the past, and proposing that they live together; that he at once acquiesced, and went to Belchertown, where he remained for about a month, and then, while absent, his wife went to New York to her apartments, and since that time the parties have not lived together; that thereafter, correspondence took place, he urging her to live in Massachusetts with him, and she replying on December 15, 1891, in the following letter :</p> <p>“ I will answer your questions to the best of my ability, if that will help to straighten matters between us.</p> <p>“ First, it is my wish that you and I, and such of my children as I desire to have with me, shall live together as a family, always excepting the one thing which you voluntarily gave up some six years ago.</p> <p>“ Second, to live in any place which your business interests may require; I should prefer not to live in Springfield, because I know that the climate there has been harmful to Kate, and would be to me; best of all, I should like New York, which agrees so well with us both, in health and pleasure. If you find any business opening which meets with my approval, you may put into it the $25,000 which you now have in your possession, from the sale of the stable, as your capital in business. I shall expect you to abandon all idea of politics for the future, to engage in some genuine business, with an eye to that alone, not asking me to move to such place until you are settled in such business with a fair prospect of being and satisfied with it, and of making it reasonably profitable; meanwhile doing as you did for three years, when you wished to be in Boston, i. e. come down here to spend Sundays with us, and as much oftener as you may find it agreeable and convenient.</p> <p>“ Third, I should wish the life insurance policies, which have been kept up so many years, to be realized on for my benefit.</p> <p>“ That you guarantee me in writing my sole ownership and absolute control of all my property, real and personal.”</p> <p>It appeared that he answered the same by letter dated December 25,1891, declining to accede to her terms; that he wrote her again on April 14, 1892, offering her a home in Springfield, to which she made no reply in a letter which she wrote to him on the 19th; that she ceased to live with him after going to New York in September, 1891; and that at the time when he returned to live with her after the letter of June 19, 1891, she declined any marital relations, and insisted upon such declination ever since.</p> <p>She testified that she did not intend to bring a libel on the ground of adultery until shortly before the same was filed, and that, on account of some controversy arising about the property, she was informed about it, although she had heard rumors in 1893, but had attached no importance to them. The evidence of the libellant tended to show that the libellee had committed acts of adultery as early as the year 1892.</p> <p>The libellee requested the judge to make certain rulings, the nature of which appears in the opinion. The judge declined so to do, found that the libellant had not deserted the libellee, that his offer of a home in Springfield was not made in good faith, and ordered a decree of divorce nisi to be entered against the libellee for adultery. The libellee alleged exceptions.</p>

<p>Contract — Married Woman — A gency — Estoppel — Promissory Note.</p> <p>In an action to recover the price of bricks used in erecting a building upon land of the defendant, it appeared that the bricks were ordered by the defendant’s son in law, and that the defendant, her husband, her daughter, and her son in law lived together on the place where the building was put up. There was evidence that the son in law hired the farm under an oral arrangement, but this was denied by the plaintiff. In April or May the son in law began building, having conveyed his personal property on the place to the defendant in January, and he went into insolvency in November, soon after the work was finished. The value of the work done was estimated by the plaintiff, an expert, at from ten to twelve thousand dollars. There was evidence that the defendant knew of the work while it was going on, and it was not disputed that some painting on the place was paid for by the defendant’s husband, who was her general agent, with her money. He Id, that, while the defendant introduced evidence tending the other way, the jury would be warranted in finding that the building was ordered by the defendant’s authority.</p> <p>The fact that a vendor took the note of a certain person when he supposed that he was dealing with him alone is not a bar to an action against a third person for the pride of the merchandise, the note having been offered back.</p>

Tort, for alleged slander in accusing the plaintiff, a physician, of ravishing the defendant’s wife after a surgical operation. The answer was a general denial, and a justification of truth. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

<p>Pergonal Injuries — Master and Servant — Assumption of Risk — Action — Evidence.</p> <p>An electric lighting corporation owes no duty to the linemen in its employ to inspect, helow the surface of the ground, the poles upon whicii its wires are suspended to see whether they are decayed, but a lineman, when he enters its service, assumes the risk of an old pole breaking and falling when he is working upon it, if he does not take measures to ascertain its condition before going upon it, and he cannot maintain an action against the corporation for personal injuries sustained from that cause; and evidence that the corporation had made no inspection of the pole prior to the accident is immaterial.</p> <p>In an action against an electric lighting corporation for personal injuries occasioned to the plaintiff, while in its employ as a lineman, by the breaking and falling of a pole on which its wires were suspended, the words, “It is not the lineman’s business to do it,” are rightly stricken from the answer to the question, “ That is so simple a man can do it [inspect a pole] who is about to climb a pole as well as anybody ? ” and the questions, whether it is a “ part of the work of a lineman to make that inspection,” and whether linemen “customarily perform that work of inspection,” are also rightly excluded.</p>

<p>Personal Injuries — Railroad — Negligence — Trial.</p> <p>If a passenger, while alighting from a railway car at a station, is injured by a sudden movement of the car, which is not explained, and which the jury, in an action for the injury, therefore has a right to attribute to the negligence of the railroad corporation, the defendant is not entitled to successive rulings that there was no evidence of negligence on the part of the several servants of the corporation by some one of whom the movement must have been caused.</p> <p>If the sudden movement of a railway car, while a passenger is alighting therefrom at a station, and using due care, is caused by letting off the air in the brake, the railroad corporation may be liable to him for the result of the act, unless there was no way to avoid letting the air off in the manner in which it was let off, although the way adopted was the usual and proper way.</p> <p>If one party to an action wishes to rely, as showing an admission by the other party, upon testimony referred to by the judge in his charge and used for another purpose, he should call the attention of the judge to it.</p>

<p>Contract, to recover for the breach of an alleged oral contract to employ the plaintiffs to build a hotel and bottling establishment in Springfield. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the defendants ; and the plaintiffs alleged exceptions, which appear in the opinion.</p>

<p>Loss of Life — Railroad—Grade Crossing — Action — Statute — Law and'. Fact — “ Gross Negligence. ’ ’</p> <p>In an action against a railroad corporation for causing the death of the plaintiff’s intestate at a grade crossing, by failure to give the signals required by Pub. Sts. c. 112, §§ 163,213, it cannot be ruled, as matter of law, that gross negligence on the part of the plaintiff’s intestate was proved, if, while the evidence tended strongly to show that the intestate was negligent, some of the important circumstances bearing on his conduct were in doubt. The jury alone could authoritatively determine them.</p> <p>The use of the words “ gross negligence ” in Pub. Sts. c. 112, § 213, shows that the Legislature intended a materially greater degree of negligence than the mere want of ordinary care.</p>

<p>Bill in equity, filed May 6,1898, in the Superior Court, by a son of P. Emory Aldrich, to establish a trust under the will of his father.</p> <p>The bill alleged that the testator died on March 14, 1895, leaving a will by which he gave “all the rest and residue of my estate, after the payment of debts,” to his wife. After appointing her executrix, and requesting that she be exempt from giving sureties on her bond and be not required to file any schedule of property in the Probate Court, he proceeded, “I give all my estate to n>y said wife to the end that she may be able to maintain a home for herself, and one where she can receive all our dear children, as we have been accustomed to do during our joint lives. I am confident she will manage with good discretion and fidelity what is committed to her, and that when she shall no longer need the property it will be equally divided among all our children, or their representatives.” The widow died on December 25, 1897, leaving a will by which she provided, “After the payment of all debts and charges it is my wish so to provide that the remainder of my property may suffice if possible to maintain the home where we have so long lived happily, for those of my children who may need it, without attempting to control their disposition of it as may to them seem best.” After a few small legacies, including one thousand dollars to Charles F. Aldrich, a son, who was named executor, and one thousand dollars to said Charles in trust for the plaintiff, the testatrix further provided, “ All the rest, residue, and remainder of my property of every nature, I give, devise, and bequeath to my three daughters, Caroline V. Durant, Henrietta Gr. Ward well, and Josephine C. Aldrich, in equal shares, to have and to hold to them their heirs and assigns forever. It is not necessary further to state the reasons for these provisions. My children all know that there is no difference in our affectionate relations, and I know that if occasion arises each one of them is ready to help the others.”</p> <p>These three daughters, the plaintiff, and Charles F. Aldrich are now and were the only children of P. Emory Aldrich and his wife when he made his will. The widow died possessed of the personal property left her by her husband’s will, except the income thereof, which she spent during her life. The plaintiff received during the life of the testatrix no part of the testator’s property, either real or personal, and the one thousand dollars left to him in trust by the will of the testatrix was less than one fifth of the property owned by her when she made her will, and at her death exclusive of what came to her by the will of her husband, and less than one fifth of the personal property so left by him, and less than one fifth of the value of the real estate left by him. The prayer was that an account might be taken, and that the executor might be directed to hold the property as trustee, and to pay over to the plaintiff one fifth of the same.</p> <p>Hearing before Dewey, J., who reserved the case for the consideration of this court.</p>

<p>Personal Injuries — Due Care — Evidence as to Intoxication of Plaintiff— Expert — Question to Jury as to Ground of Verdict.</p> <p>At the trial of an action for personal injuries alleged to have been received from a defect in a highway, testimony relating to the plaintiff’s habits as to temperance and to his reputation for sobriety, offered by him as bearing upon the probability of his intoxication, is rightly excluded; and testimony of witnesses as to whether the plaintiff was intoxicated is rightly admitted.</p> <p>At the trial of an action for personal injuries alleged to have been received from a defect in a highway, the testimony of an alleged expert, offered to show whether the road was safe and convenient for _ travel, relates to a matter on which the common experience and observation of the jury qualifies them to pass, when the actual condition of the way has been described to them, and on which they need no assistance from an expert, and it is properly excluded.</p> <p>At the trial of an action for personal injuries alleged to have been received from a defect in a highway, in answer to a question by the judge as to the ground on which the jury found their verdict, the foreman replied that it was on the ground that the plaintiff was not in the exercise of due care. The circumstances under which the question was put were not fully disclosed, and it was stated in the plaintiff’s brief that the jury had been out twenty-five hours, but that did not appear in the exceptions. Held, that, even if it did appear, it would not render the question improper, nor would the foreman necessarily be unable to state the ground of the verdict.</p>

Two actions of tort, for personal injuries occasioned to the plaintiffs by reason of a defect in a highway in the defendant town.

<p>Tort, for personal injuries sustained by the plaintiff while a passenger on the defendant’s railroad. The declaration alleged that “ at or near the station at South Framingham the defendant’s employee called out in the car in which the plaintiff was seated, 6 South Framingham,’ and thereupon the said car stopped and came to a standstill, and that thereafter the plaintiff, relying upon the said announcement and believing therefrom and from the stopping of said car that the' passenger station had been reached, attempted to alight from said car; that as she was on the point of stepping from said car the train suddenly started and she was thrown with great force to the ground,” and was injured.</p> <p>Trial in the Superior Court, before Graslcill, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that she purchased a ticket, and left Worcester at five minutes past nine o’clock in the evening; that the train did not stop between Worcester and South Framing-ham ; that there was nobody in the car but herself and two girls, and on the way from Westborough to South Framingham the two girls moved into, the car ahead; that she was in the car alone at the rear end thereof from Westborough to South Framingham; that she sat with her arm on the window, and the brakeman came to the front of the car, and said, “ South Framingham,” twice; that she never moved until the car came to a standstill, and then she stepped down on to the third step and was about taking the fourth step on the platform when the car started, and that was all that she knew or remembered; that she was sitting in the second seat from the door at the end of the car, and the brakeman came to the forward end of the-car and made the announcement, and then she got up and went out on the platform; that she had frequently been on the train; that it was the seventh time she had taken this train within a year; that the first knowledge she had that the car was in motion after she got up to go on the platform was when she had taken the first step, and as she was going to step on the last step the car started with full force; and that there were four steps on the car, and she had taken three steps before she knew the car was in motion.</p> <p>On cross-examination, she testified that she knew where the platform was and where the station was; that she got on the rear end of the rear car on that train; that there was no car behind the car that she got on; that she kept, the seat that she took at Worcester all the way, and never moved at all; that she sat on the right hand side of the car; that she got out of the car on the same platform of the car as that on which she entered it; that she knew before the brakeman spoke where she was, or knew pretty well where she was; that she kept watch so that she knew where she was; that all the brakeman said was, “ South Framingham,” twice; that she did not see any electric lights at the station; that she saw the electric lights in the cars; that she did not see where the car was with reference to the South Framing-ham station; that when the brakeman halloed she sat there until the train came to a standstill, and then she got up; that she had to take three or four steps to get on the steps of the car; that she looked to pick her steps, as it was dark when she got out; that when she got out on the platform of the car she did not look to see where the 'car was; and that she saw the platform of the station there.</p> <p>Her examination was continued as follows:</p> <p>“ Q. Did you step out on the platform or not? A. I did not step on the platform. — Q. What did you step on ? A. I stepped on the last step of the car and just my step on the railroad. •—■ Q. What were you going to step on ? A. That is all I know. I don’t know anything what became of me.— Q. You knew what you looked to see, what you were going to step on ? A. I did. — Q. Did you see whether yon were going to step on the platform or going to step off on the track or on the ground? A. I stepped on the track, on the step of the platform. — Q. Which, the track or platform ? A. I could n’t tell you. — Q. You did not know anything what you were going’ to step on? A. I stepped on to the platform of the cars. — Q. You mean the platform of the station ? A. Yes.”</p> <p>She testified further that she tried to step off on the platform; and that when the train started she was stepping on the fourth step and just'stepping on the platform.</p> <p>The defendant bailed ten witnesses, who testified that the train was made up of the engine, baggage car, a smoking car, two common coaches, two parlor cars, and a dining car. All the witnesses but one testified that the two common coaches were ahead of the two parlor cars, and that the dining car was at the rear end of the train next to the two parlor cars. The engineer said the two parlor cars were ahead of the two coaches. All the witnesses who testified as to the whereabouts of the plaintiff after she fell testified that she was found opposite the rear trucks of the dining car, on the earth, where there was no platform, and at a point which was westerly of the Milford Branch track, and at a distance of some two hundred feet from the west end of the station.</p> <p>The plaintiff was found by the rear end brakeman, who was on the rear end of the dining car, after the train had come to a final stop at the station.</p> <p>The plaintiff’s testimony was that she was in a common coach and not in a parlor car.</p> <p>The evidence for the defendant tended to show that the plain-i tiff was in the rear end of the rear common coach; that if the common coaches were in the rear of the parlor cars and next to the dining car, then nearly the whole length of the dining car passed the point where she stepped or was thrown off after she was so thrown off; that if the common coaches were ahead of the two parlor cars, then the whole length of the two parlor cars and nearly the whole length of the dining car passed the point where she stepped or was thrown off after she so stepped or was thrown off; and that the train made no stop until it reached the final stop at the station, and made no start after its final start, until it finally started for Boston, after the plaintiff had been found upon the ground.</p> <p>The defendant asked the judge to rule as follows:</p> <p>“ 1. If the plaintiff undertook to step off the train when it was in motion, and was injured in consequence, she cannot recover.</p> <p>“ 2. If the train had not come to a stop when she attempted to step off, she cannot recover, whether she knew it was in motion or not.</p> <p>“ 3. The plaintiff cannot recover unless the train, at the time she attempted to step off, had come to a stop at the place designed for passengers to alight, unless there is evidence to satisfy the jury that the defendant negligently led the plaintiff to suppose the train had reached and stopped at such place.</p> <p>“ 4. The act of the brakeman in calling the station and the actual stopping of the train are not evidence to warrant a finding that the defendant negligently led the plaintiff to suppose the train had reached the place for her to alight.</p> <p>“ 5. She was bound to use due care to ascertain whether the train had reached the place designed for passengers to alight, and had no right to assume it simply because the brakeman announced the station, and the train had stopped.</p> <p>“ 6. The action of the brakeman in calling the station was not an invitation to alight from the train at all, or, if it was, it was not an invitation to alight from the train until it had come to a stop at the station where it was designed to discharge the passengers.</p> <p>“ 7. On the pleadings and evidence in this case there can be no recovery, unless the train had come to a stop at the place designed for passengers to alight, and while the plaintiff was, in the exercise of due care, in the act of alighting, the train was negligently started.</p> <p>“ 8. The evidence is not sufficient to warrant a finding that the train had, at the time the plaintiff attempted to step off, come to a stop at the place designed for passengers to alight.”</p> <p>The judge gave the first three and the fifth rulings only in the form requested; declined to give the eighth request in any form; and instructed the j ury, among other things, as follows:</p> <p>“ The practical contention comes to this : Had the train come to a standstill, and did the plaintiff, in relying upon that fact and the announcement which had been given of South Framing-ham, attempt to alight, believing the station had been reached, and in the exercise of due care, was she injured by the sudden starting of the train?</p> <p>“First, then, had the train come to a standstill? If it had not, then the plaintiff cannot recover. . ... It is for you to say as between the conflicting testimony whether you are satisfied by a fair preponderance of the evidence that the train had come to a standstill. If it had, then the next question for you to determine, in order that the plaintiff may recover, is whether the train was negligently started by the defendant without notice to her and without any information that would lead her to believe, or lead a reasonable, prudent, and careful person to believe, that the train was about suddenly to start. If you are satisfied of that, then, so far as the negligence of the defendant is concerned, if she, the train having come to a standstill, attempted to alight and was thrown by the sudden starting of that train, she being in the exercise of due care herself, then it is competent for you to consider whether that act of suddenly starting, the train was an act of negligence on the part of the defendant, which was the proximate cause of the injury to her. If she fell off, if she started to get off while that train was in motion, if, supposing that the train had stopped or was about stopping, she suddenly jumped off, then she cannot recover.</p> <p>“Upon the question of the defendant’s negligence, I will further instruct you that the plaintiff cannot recover unless the train, at the time she attempted to step off, had come to a stop at a place designed for passengers to alight, unless there is evidence to satisfy you that the defendant negligently led the plaintiff to suppose that the train had reached and stopped at such a place.</p> <p>“ The act of the brakeman in calling the station and the actual stopping of the train are to be considered by you in connection with the care which it was necessary for her, the plaintiff, to use in the exercise of her senses to determine whether the defendant negligently led the plaintiff to suppose the train had reached the place for her to alight.</p> <p>“ If you are satisfied of those things, then there is one other fact which must be proved by the plaintiff, and that is that she was in the exercise of due care herself in stepping from the train at a proper place. . . .</p> <p>“ She was bound to use due care to ascertain whether the train reached the place designed for passengers to alight, and had no right to assume it, simply because the brakeman had announced the station, and the train had stopped. I think I substantially covered that before. She must use her senses. Simply because somebody said, 6 South Framingham,’ is not enough. She must use her senses about it.</p> <p>“ If the plaintiff fails to satisfy you, either that the train had not come to a standstill, or that she alighted at the proper place or was in the exercise of due care, then the verdict must be for the defendant.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Grade Crossing — Statute — Auditor — Report — Equity Jurisprudence and Rules — Fees of Counsel and Engineers—Town — “ Costs and Expenses.”</p> <p>Although the language of St. 1890, c. 428, entitled “ An Act to promote the abolition of grade crossings,” is that the report of the auditor when confirmed by the court shall be final, still it is not to be construed as taking away the general authority of a single justice to report to the full court questions of law arising in equity.</p> <p>It is too late to raise in this court the point, not taken in the Superior Court, that a town has no standing here because it did not file in the Superior Court objections to the report in accordance with Equity Rules XXXI. and XXXII. of that court.</p> <p>Expenses incurred by a town in employing counsel to appear at hearings in the Superior Court in opposition to the appointment of a commission to make separation of a grade crossing under St. 1890, c. 428, to represent the town in the selection of commissioners after the decision of the court to appoint, to oppose before the commission any abolition whatever, and to advocate before the commission, after its decision to abolish the crossing, a different plan of .separation from that presented by the railroad company, and expenses incurred by it in employing a civil engineer to prepare and present plans to the commission, which were not adopted, it appearing that the town, by vote at a town meeting, appointed a committee with authority to employ counsel and an engineer for the purposes stated, and that the reasonableness of the charges was not in dispute, cannot be allowed.by the auditor as part of the “cost of the hearing,” under § 8 of the statute, or as part of the “ expense incurred by the town,” under § 7, to be apportioned between the railroad company, the Commonwealth, and the town.</p>

<p>Tort, for loss of the society and services of the plaintiff’s wife, Emily W. Johnson, and for expenses incurred by him by reason of her being thrown from a carriage in which she was travelling on a defective highway in the defendant city, and sustaining personal injuries.</p> <p>At the trial in the Superior Court, before Bond, J., it appeared that the defect was caused by a depression in the street through which a water pipe had been laid; that the trench dug for the purpose of laying the pipe had been filled; that a rain storm of thirty-four hours’ duration had immediately preceded the accident, which occurred on October 14, 1895; and that the plaintiff’s wife drove into the depression, which was at the lower end of the refilled trench, about two feet wide and three feet long, and filled with water.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p> Losses from, Insolvency occurring after the Term of a Bond of Indemnity. </p> <p>An action was brought upon a bond of indemnity against loss resulting from insolvency of debtors “ on total gross sales . . . amounting to $120,000 or less ... to be made ” between June 15, 1896, and June 14, 1897, when the bond was to expire. By a rider “ covered losses, occurring after payment of premium, on sales and shipments made” from April 1, 1896, to June 15, 1896, might be proved. By the fourth condition, “ notification of claims must be delivered to this company . . . within ten days after ” information by the indemnified of the debtor’s insolvency and received at the company’s central office at S. during the term of the bond, otherwise to be barred. By another condition there was to be a final statement of all claims filed according to the fourth condition, and it was to be re-. ceived at the office within thirty days after the expiration of the bond, otherwise all claims to be barred; and claims were to be adjusted within sixty days after receipt of such final statement, the amount due to be then payable. By still another condition, “ In case this bond is renewed, . . . loss on sales covered . . . resulting after said date of expiration upon shipments made during the term of this bond, may be proven, . . . subject also to the terms and conditions of such renewal.” Then followed a similar provision in case this bond was a renewal. The loss in respect of which the plaintiff claimed indemnity was upon sales made within the time limited by the instrument, but the insolvency causing the loss in each case occurred after June 14, 1897. Held, on demurrer to the declaration, that the bond did not cover the loss.</p>

<p>Personal Injuries — Railroad — Master and Servant — Action.</p> <p>A railroad corporation is not liable for injuries sustained by an experienced person in its employ, while attempting to couple two cars together by the use of a link and pin, in obedience to orders, because the drawbars of the cars, one of which belonged to another corporation, were of unequal height, causing one drawbar to slide over the other, and such person, who held the link, to be crushed between the sills of the cars.</p>

<p>Trustee Process — Attachment of Property conveyed to Assignee for Benefit of Creditors.</p> <p>At the time of the service of a writ the person sought to be charged as trustee had accepted from the principal defendants a conveyance of all their property not exempt from attachment, consisting mainly of machinery, supplies and stock ,on hand in a shoe factory, and book accounts, in trust for the defendants’ creditors, but had done nothing about taking possession of the property. No creditors had become parties to the deed. Held,, that, the title having passed as between the parties to the deed, and the trustee having the right to the immediate possession, the property was “ intrusted in the hands ” of the trustee within the meaning of Pub. Sts. c. 183, § 21.</p>

Tort, for personal injuries sustained by the plaintiff, while employed in the defendant’s iron foundry as a moulder, through the alleged negligence of the defendant. The declaration contained two counts, one at common law and the other under the employers’ liability act, St. 1887, c. 270. Trial in the Superior Court, before War dwell, J., who allowed a bill of exceptions, in substance as follows. The evidence tended to show the following facts.

Bill in EQUITY, filed in the Superior Court, to restrain the defendants, Trefle Beauvais, Jr., and Marie D. Beauvais, from maintaining a certain fence across Leary Street, so called, and in front of the premises of the plaintiff, in Chicopee.

Contract on a policy of insurance on the life of Sophia W. Carlson for the benefit of her husband, Carl Axel Carlson. The writ was dated August 11,1896, and the insured died at Stockholm, in Sweden, October 2,1894.

<p>Landlord and Tenant — Notice of Termination of Tenancy at Will — Action.</p> <p>If a tenant at will does not give a proper and legal notice sufficient to determine the tenancy, and the- landlord does not accept the surrender of the premises, the tenancy is not determined by the tenant vacating the premises.</p>

Tort, for personal injuries occasioned to the plaintiff by a collision between a baker’s cart driven by him and an electric car of the defendant.

Tort, for personal injuries sustained by the plaintiff, while in the employ of the defendant, through the alleged negligence of the latter in not providing a gang-plank, for use in loading machinery. The declaration contained three counts, two under the employers’ liability act, St. 1887, c. 270, and one at common law. Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.

Contract for beer and ale sold and delivered to the defendant. Writ dated September 30, 1896. The ease was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, in substance as follows. The plaintiff during all the time of the transactions involved in the action was a corporation organized under the laws of Pennsylvania.

<p>Complaint, dated July 27,1897, under the bastardy act, Pub. Sts. c. 85, describing the complainant as of Clarksburg in this Commonwealth. The respondent filed a plea in abatement, alleging that the complainant’s residence was in Readsboro in the State of Vermont, and not in Clarksburg in this Commonwealth. The complainant also filed a supplemental complaint, setting forth the birth of the child since the original complaint, and joined issue upon the plea.</p> <p>The respondent then, by leave of court, filed a second plea, averring that, at the time when the child was alleged to have been begotten by him, both he and the complainant were domiciled in the State of Vermont; that, at the time of making the complaint, the complainant was not, and never had been, a resident of this Commonwealth, but was a resident of the State of Vermont; that no child had ever been born to the complainant in this Commonwealth; and that the court had no jurisdiction of the complaint. The complainant joined issue upon this plea, and the pleas were heard together in the Superior Court, without a jury, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The respondent called the complainant as a witness, and she testified that she was born in Readsboro, Vermont; that she was eighteen years old on August 11, 1897; that her father and mother were living together in Readsboro at the time of the trial, and had so lived there for some years; that she lived at her father’s house from January, 1897, until July 27, 1897, when she came to Clarksburg in this Commonwealth, to the house of Eugene Brown; that she reached his house in the morning of that day, and in the afternoon of the same day made the complaint in this case at his house to the clerk of the District Court of Northern Berkshire; that she had previously arranged with her counsel to meet the clerk there on that day; that before that time she had never lived in Massachusetts; that prior thereto, either early in July, or late in the preceding June, she had also, by arrangement with her counsel, met the clerk of the District Court of Franklin at Monroe Bridge in Franklin County, and there made to him a complaint charging the same facts as in the complaint at bar; that between the time of making such complaint in Franklin County and her coming to Clarksburg she saw her counsel, and was advised by him that, in order to have this prosecution lie in this Commonwealth, she would have to become a resident thereof, and her principal reason for coming here was to institute this complaint; and that she received a letter from the wife of Brown, three or four days before she came, concerning her coming, but had not seen her upon the subject. This letter was later put in evidence, subject to the respondent’s exception. It was dated July 24, and the witness testified that she received it on July 26, and answered it the same day.</p> <p>On cross-examination, she testified, that since she became large enough she had worked out at housework, and, subject to the respondent’s exception, that she had made her own trades for such work, and herself received the pay therefor. She further testified that she discovered in May, 1897, that she was pregnant, and, subject to the respondent’s exception, that she went to him about it, and on the following Tuesday he left Readsboro; also, subject to the respondent’s exception, that at some time between July 12 and 27, her father said to her that his health was very poor, and he could not support her, and she would have to find a home somewhere else; and that she should have the rest of her wages and take care of herself. She testified further that she had known Mr. and Mrs. Brown since she was a small girl, and at one time lived near to them; that when she went to Brown’s, she took her trunk and clothing, and left no personal property or effects of any consequence at her father’s; and, subject to the respondent’s exception, that on her arrival at Brown’s, to whose house her father took her, Mr. and Mrs. Brown said that she could have a home there with them and be one of the family just the same as their own daughter, and that her father said that he had no control of her after that. She also testified that when she went to Brown’s her intention was to make her home there; and, subject to the respondent’s exception, that since she arrived at Brown’s on the morning of July 27, her home had been in Clarksburg, at Brown’s, and that she had since been supported by the Browns, and her father had done nothing for her support.</p> <p>On redirect examination, she testified that she staid continuously at Brown’s from July 27 until August 5, 1897, on which day she went to North Adams to the hearing in the District Court in this case; that upon that day she returned to Clarksburg, and went from there on the same day to her father’s home in Readsboro, where she remained until September 25,1897; that she took with her at that time such clothing as she wished to wear while she was visiting; and that since September 25 she had been in Clarksburg.</p> <p>On recross-examination, she testified as follows:</p> <p>“ Q. How came you to go back to your father’s on the 5th of August ? A. My father was very sick, and so my sister came after me and wanted me to go and make him a visit, and so I went.— Q. How did you find your father after you got there ? A. Quite sick.— Q. Confined to the bed ? A. He had his clothes on, and had been confined to his bed. — Q. What was the matter with him? A. He had sugar diabetes and rheumatism.— Q. And why did you remain so long as you did? A. Because he was sick.— Q. And what was the result to yourself? A. I was taken sick.— Q. Were you taken sick before you expected to be? A. Yes, sir. — Do you know the reason why you were taken sick before you expected to be ? A. Why, I think the excitement. — Q. Of your father’s sickness? A. Yes, sir.— Q. And your child was born there ? A. Yes, sir. — Q. How long after that was it before you were able to go back? A. Six weeks.— Q. And then what did you do ? A. I came back to Clarksburg.”</p> <p>On redirect examination, she testified that her friends did not think it best for her to go back to Clarksburg before September 25; that she paid her father $25 for board between August 14 and September 25, and paid her doctor’s bills; that she did no housework at her father’s house between those dates; that the respondent lived in Readsboro in December, 1896, and down to May, 1897, and had always lived there so far as she knew; and that his father and mother had lived there as long as she had known them.</p> <p>Richard I. Davis, the father of the complainant, testified that he had lived in Readsboro for nine years; that the complainant had worked out for various families in Readsboro since she was twelve years old, except when she was at school; and, subject to the respondent’s exception, that a week or ten days before she came to Clarksburg he told her that he was sick and could not; support her, and she must take her own time and earn her own living, and that he could not support her in the condition he was in, and in the condition she was in; that he took her to Brown’s, and Mrs. Brown said she might come and make her home there; that he said he was perfectly willing she should go there and make it her home; that he could not support her, and that they might have her earnings and look after her the same as their own family; and that he had exercised no control over her since she came to Massachusetts.</p> <p>On cross-examination, he testified that on the Saturday before he took his daughter to Brown’s he and his wife had a talk with Mr. and Mrs. Brown at the latter’s house; that Mr. and Mrs-Brown stated to him and his wife that the complainant might have a home there; that the Browns were to give an invitation to the complainant to come there ; that he saw the letter which his daughter received from Mrs. Brown; and that it was Tuesday, July 27, when he took his daughter to the Browns.</p> <p>The respondent requested the judge to rule, upon all the evidence, that the pleas were sustained, but the judge refused so to rule, and overruled both pleas; and the respondent excepted.</p> <p>The case was then tried before a jury, upon the defendant’s plea of “Not guilty.” Counsel for the respondent offered to admit, for the purposes of the case, that the respondent was the father of the complainant’s child. Counsel for the complainant accepted this admission, but, at the suggestion of the judge, called the complainant as a witness, who testified to facts sufficient to warrant the finding that she was the mother of a living child, born August 14,1897, in Readsboro, Vermont, begotten there in November or December, 1896, by the respondent; and that she and the child were living at the time of the trial, November 5, 1897, at the Browns in Clarksburg, in this Commonwealth.</p> <p>Counsel for the respondent stated that he did not desire to cross-examine the witness upon the question of the parentage of her child, but he proposed to cross-examine her upon the question of her residence, and facts relative thereto, and to the jurisdiction of this court. The judge refused to permit him so to do.</p> <p>The respondent then offered to show that he was twenty-three years old on February 14, 1897; that he was born in Vermont, and resided there until some time in May, 1897 ; that his father and mother still resided there; that the complainant was born in Vermont on August 11, 1879, and resided there until July 27, 1897 ; that her father and mother were both residents of Vermont, living together and keeping house; that from some time in January, 1897, until July 27, 1897, the complainant’s home had been with her father and mother; that on July 12,1897, she came to Monroe Bridge, and made a complaint in the District Court of Franklin against this respondent for bastardy; that the complaint was dismissed in that court for lack of jurisdiction; that between that date and July 27, she saw her counsel at her father’s home in Vermont, and was advised by him that she could not maintain her prosecution in this Commonwealth, unless she acquired a residence here; that on July 24 her father and mother came to Massachusetts, to the house of one Brown, in Clarksburg, and there talked with Brown and his wife in regard to the condition of their daughter and her future home, and the prosecution against the respondent; that it was arranged between them that the Browns should send a written invitation to the complainant to come and make her home with them; that the letter was received by her on July 26; that she replied that she would come, and on July 27 she came, arriving at the house of Brown in the forenoon, and on the afternoon of the same day, by previous arrangement made between her and her attorney, she met him and the clerk of the District Court of Northern Berkshire at the Browns’ house in Clarksburg, and there instituted these proceedings ; that her principal reason for coming into Massachusetts was to qualify herself to maintain this complaint, as she had been advised ; and that on August 5 she returned to the home of her father, in Readsboro, where her child was born on August 14, and where she remained until September'25, 1897.</p> <p>The judge ruled that all the evidence included in this offer was incompetent and immaterial, and excluded the same; and the respondent excepted.</p> <p>The jury returned a verdict of guilty; and the respondent alleged exceptions.</p>

Two indictments, each alleging that the defendant, on August 21, 1897, at Northampton, unlawfully and carnally knew and abused a female child of the age of fourteen years. At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict of guilty in each case; and the defendants alleged exceptions, which appear in the opinion.

Bill in equity, praying that a decree of the judge of insolvency of September 6, 1898, on a petition of the defendants that a warrant issue to a messenger to take possession of the plaintiff’s estate be reversed, that the warrant be recalled and the petition dismissed, and that the messenger be enjoined from interfering with the property of the plaintiff.

<p>Two petitions for damages caused by the abolition of a grade crossing in the town of Natick. Trial in the Superior Court, before Sheldon, J., who ruled that the petitioners could not recover, and directed the jury to return a verdict for the respondent in each case; and the petitioners alleged exceptions. The facts appear in the opinion.</p> <p>The cases were argued at the bar in March, 1898, and after-wards were submitted on briefs to all the justices except Holmes, J.</p>

<p>Fraud — Equity Practice — Appeal from Decree.</p> <p>Upon appeal from a ilecree of a justice of the Superior Court sitting in equity on questions of fact arising upon oral testimony heard before him, his decision will not be reversed unless it is plainly wrong.</p>

Tort, for personal injuries. Trial in the Superior Court, before Blodgett, J., who ruled that the action could not be maintained because notice was not given as required by law, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion. The case was argued at the bar in September, 1898, and after-wards was submitted on briefs to all the justices.

<p>Indictment for arson. At the trial in the Superior Court, before Fessenden, J., the defendant requested a ruling, based on an alleged variance between the averments and the proof, which the judge refused to give, and the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions. The nature of the ruling requested appears in the opinion.</p>

<p>Injury from Kick of Horse — Action — Instructions.</p> <p>If a young boy is injured by the kick of a horse, which he is approaching, not. as a traveller on the way, but for the purpose of reaching and touching him, in an action against the owner of the horse for the injury, it being in dispute whether the accident occurred on the sidewalk of the way or in the defendant’s adjoining barnyard, the defendant is entitled to a ruling that the “ question of the sidewalk ” is immaterial.</p>

Petition to the Probate Court, by the administrator cle bonis non with the will annexed of Bainbridge Hayward, for instructions as to the construction of the will. The judge entered a decree that the legacy of five thousand dollars given to William B. Hayward after the decease of the testator’s widow vested at the decease of the testator; and Henry J. Hayward and others appealed to this court.

Contract. The declaration was founded on an award of the selectmen of Brookfield assessing damages on the plaintiff’s petition against the defendant corporation for the construction of an electric railway in the usual manner along and upon the highway opposite the plaintiff’s land. Section 4 of Pub.

Tort, for an assault and battery committed by the husband of the defendant upon premises owned by her. At the trial in the Superior Court, before Lilley, J., it appeared that the husband of the defendant was her authorized agent for the care of her real estate; that at the time of the alleged assault and in the commission thereof he was acting within the scope of his authority as such agent, and that she was not then present.

Bill in equity, filed January 4, and amended May 12,1897, in the Superior Court, against the Telegram Newspaper Company, a corporation, and Austin P. Cristy, to compel the latter to restore to the corporation money appropriated by him, alleging that Cristy was a majority stockholder in the corporation, the balance of the stock being owned by the plaintiff and one Bassett, and all three being directors therein..

<p>Tax — Evidence of Ownership of Property — Action — Finding.</p> <p>Upon the facts of this case, which was an action to recover the amount of a tax assessed to a firm upon a stock of goods, and demanded of and paid by the plaintiff under protest, the judge, sitting without a jury, was warranted in finding that the plaintiff" was the owner of the goods assessed, or had such an interest in them as to be liable for the tax.</p>

Tort, for personal injuries. Trial in the Superior Court, before Bond, J., who, the defendant having pleaded in bar a judgment in a former action, directed a verdict for the defendant on the plea and record; and the plaintiff alleged exceptions, which appear in the opinion.

<p>Cruelty to Horse—Instructions — Intent.</p> <p>At the trial of a complaint under Puh. Sts. c. 207, § 53, for cruelty to a horse, the defendant took no exceptions to the instructions to the jury, which were, in substance, that severe pain inflicted upon an animal without justifiable cause, and with reasonable cause to know that it is produced by the wanton or reckless conduct of the person occasioning it, is cruel, and the fact that the defendant did not intend to violate the statute is not a defence, if he acted with wanton and reckless disregard of the feelings and suffering of the horse. The defendant excepted to the refusal to give the following rulings which he requested: “1. Tlie motive of a person who inflicts pain upon an animal, in determining the criminality of the act, may be material. Pain inflicted for a lawful purpose, and with a justifiable intent, though severe, does not come<within the statute meaning of 'cruel.’ 2. If a defendant, in the proper exercise of his own judgment, honestly thinks he is not being unnecessarily cruel, he must be acquitted. 3. It must appear that the defendant knowingly and willingly was unnecessarily cruel.” Held, that the first request was rightly refused, the instructions given and not excepted to having dealt properly with the defendant’s intention, though not in the terms of the request. Held, also, that the other requests were also properly refused, as the defendant’s guilt did not depend upon whether he thought he was unnecessarily cruel, but upon whether he was so in fact.</p>

Petition for partition of three parcels of land in Mattapoisett. The respondent claimed sole title to one parcel under a deed from Hannah Hall, a sister of the petitioner and aunt of the respondent, and disclaimed as to the other parcels. At the trial in the Superior Court, before Richardson, J., the jury returned a verdict for the respondent; and the petitioner alleged exceptions, which appear in the opinion.

<p>Personal Injuries — Admission—Weight of Evidence—Negligence — Question for the Jury.</p> <p>In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ, there'was evidence of the plaintiff’s mother that the defendant said to her, “ I do not want to tell you to sue me, but if it was me I should sue. . . . My machines are all insured, and you will have to sue me to get at the insurance company.” Held, that the sentence in which he indicated an opinion that he was liable was in the nature of an admission which was evidence against him; but the weight of it might be affected by the fact, if it was a fact, that lie was insured.</p> <p>Where, in an action for personal injuries occasioned to the plaintiff while in the defendant’s employ, the testimony of the plaintiff was not clear in support of the contention that the defendant failed to perform the duty of keeping the machinery in a condition safe for his employees to work upon it, but some things in his testimony had a slight tendency 'in that direction, the court said that, considering this testimony in connection with certain admissions of the defendant tending to show his liability, it was of opinion that the case was rightly submitted to the jury.</p>

<p>Personal Injuries — Employers’ Liability Act — Negligence.</p> <p>At the trial of an action for personal injuries under the employers’ liability act, St. 1887, c. 270, it appeared that the plaintiff and one P. were engaged in a room about sixty feet long and forty feet wide in the defendant’s cotton house in moving cotton out towards the door, P. being on the top of a pile of cotton bales and the plaintiff being on the floor near the bottom of the pile; that the space was about half filled with cotton; that the work was simple, both being familiar with it; and that while the plaintiff was rolling a bale with his back towards P., another bale which was thrown down by P. struck him and broke his leg. The plaintiff sought to hold the defendant, on the ground that its superintendent, who was eating his breakfast not far from the pile when the accident happened, had told P. a short time before to “ throw down cotton ”; but the plaintiff testified differently in different parts of his testimony as to whether the order to throw down cotton was given when the superintendent first ordered them to do this work, or later just before the bale came down. Eeld, that there was no evidence of any order of the superintendent that was more than a command or request to hurry on the work in a proper way, or which made the superintendent or his employer responsible for P.’s negligence in throwing down the bale upon the plaintiff.</p>

<p>Petition, by the owner of land, to recover compensation for injuries thereto by reason of a change of grade in the adjoining highway. The case was submitted to the Superior Court, and, after judgment for the respondent, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion. If the petition could be maintained, the case was to go to the jury for the assessment of damages 5 otherwise there was to be judgment for the respondent.</p>

<p>Tort, for personal injuries. Trial in the Superior Court, before Richardson, J., who, at the close of the evidence and at the request of the defendant, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion, and in a note thereto by the reporter.</p>

<p>Accepting a preference in payment for goo.ds sold to an insolvent after his creditors have given him an extension of time is not a bar, under Pub. Sts. c. 157, § 33, to proof of a claim upon a note given for an old debt when the extension was granted.</p>

<p>Contract, to recover a balance due for wages. The defendant answered with a general denial, and also filed a declaration in set-off. After the former decision, reported 169 Mass. 578, the case was tried in the Superior Court, without a jury, before Blodgett, J., who found for the defendant; and the plaintiff appealed to this court, and also alleged exceptions. The facts appear in the opinion.</p>

<p>Life Insurance — Law and Fact — Lnstructions — Exceptions.</p> <p>If the only issue at the trial of an action upon a policy of life insurance is whether or not the assured was in sound health at the date of the policy, and the evidence for each party, if believed, would warrant a verdict for such party, a pure question of fact, and not of law, is raised, and a request for a ruling that, upon the whole evidence, the plaintiff is. not entitled to recover, is rightly refused.</p> <p>No exception lies to the refusal to give an instruction in the language requested, if it is given in substance.</p>

<p>Tort, against Edward R. Price and Arthur T. Parker, for false representations in the sale of a bond of the Jacksonville Electric Light Company. After the former decision, reported 169 Mass. 576, the case was tried in the Superior Court, before Richardson, J.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions, which appear in the opinion.</p>

<p>Eviction — Landlord and Tenant — Trial — Exceptions.</p> <p>It is within the discretion of the judge presiding at a trial, when the plaintiff has rested, to entertain a motion by the defendant to direct the jury to return a verdict for him.</p> <p>At the trial of an action by the assignee of a lease for an eviction from the leased premises, consisting of a store and the cellar under it, it appeared that the store was closed by somebody for several days after the assignment of the lease, to which the defendant had assented; and that the door to the cellar from the bulkhead on the outside of the premises was fastened at or about the same time by a bar on the inside, and remained fastened for a longer period of time. There was no evidence that the defendant closed the store as distinguished from the cellar; but the evidence was that he refused to open the cellar door at the foot of the bulkhead, and said that he would not open it until he got a sum named. A witness testified that, when the assignor was moving out, the defendant told the former that the cellar door was open if the assignor wanted to use it; and also testified that the bulkhead was open, but the door at the foot of the stairs was closed and fastened. The assignor testified that he never received any key to this door from the defendant, or anybody representing him, “ and it was always open before the date they say it was closed.” Neither the assignor nor the plaintiff saw the defendant close the door or fasten it, and did not know who did fasten it. Held, that it did not appear that the direction of a verdict for the defendant ' was wrong.</p>

<p>Trustee Process — Premature Appeal.</p> <p>If, where a trustee appeals from orders of the Superior Court overruling his motion that he be discharged on his answer and requiring him to answer certain interrogatories propounded by the plaintiff, it does not appear that the action against the principal defendant has been tried, the appeal is prematurely entered, and must be dismissed.</p>

<p>Present: Field, C. J., Holmes, Knowlton, Barker, & Hammond, JJ.</p> <p>Obtaining Money by False Pretences — Indictment—Defence—Evidence — Common Law and Statute — Criminal Intent — Instructions.</p> <p>An indictment, under Pub. Sts. c. 203, § 59, alleged that the defendant, at a time and place in this Commonwealth named, with intent to cheat and defraud A., falsely pretended that certain properly situated at N. in another State was “ then and there ” solely owned by the defendant, that there was no encumbrance upon it, that he did not owe a dollar to any one, and that lie intended to organize a corporation and become an owner of stock in it by turning over the property to the proposed corporation in exchange for stock; that the defendant “ then and there ” executed and delivered to A. an instrument, which was set out, and which promised to convey twenty shares of the corporation to A. in consideration of $2,000; and that A. “ then and there,” believing the representations, was induced thereby to deliver and did deliver a check for $2,000 to the defendant upon the execution and delivery of such instrument; and negatived most, but not all, of the alleged pretences. Held, that it was sufficiently alleged that the delivery of the instrument was made the condition of the payment, and that the condition was performed and accepted as performed by A.; that the words “ then and there ” in each instance referred to the time and place of the representations, and not to N.; and that it was not necessary to allege that the instrument was falsely made, and enougti of the alleged pretences were negatived to show that the scheme was fraudulent.</p> <p>It is no defence to an indictment for obtaining money by false pretences, that an agreement, upon the execution and delivery of which by the defendant the money was paid, was illegal.</p> <p>At the trial of an indictment for obtaining money from A. by false pretences, evidence of A. that the alleged representations satisfied him and induced him to give the defendant the money, and that he would not have parted with the money but for them, is admissible.</p> <p>At the trial of an indictment for obtaining money by false pretences that certain property was owned by the defendant solely, and that he intended to organize a corporation and become a large owner of stock in it by turning over the property to the proposed corporation in exchange for stock, no exception lies to the refusal to rule that there was no evidence that the defendant did falsely pretend that he proposed and intended to become a large owner of stock in the corporation by turning over the property in exchange for it; the statements testified to being that the defendant stated that he intended to form a corporation and would deliver stock to the witness, who was the defrauded person.</p> <p>If representations of the defendant, in an indictment for obtaining money by false pretences, that he owned certain property solely, that there was no encumbrance upon it, and that he did not owe a dollar to any one, were false, he is not entitled to a ruling that the jury should acquit him, unless they should find the further representations that he intended to form a corporation and exchange the property for stock to have been false, as charged; and, if the evidence shows that A.’s money was obtained by a fraudulent scheme, the jury are warranted in finding that the pretences were false throughout.</p> <p>At the trial of an indictment for obtaining money by false pretences that certain looms and machinery were owned by the defendant solely, and that “ upon said looms and machinery there was no encumbrance,” the defendant requested the ruling that there was no evidence that the property was encumbered on the date when the representations were made. The judge instructed the jury that there was no such evidence, and that the government’s position was not that the defendant owned the property and that it was encumbered, but that he did not own it at all and never had owned it. Held, that the defendant had no ground of exception.</p> <p>If a person is indicted, under Pub. Sts. c. 203, § 59, for obtaining money by false pretences, it is immaterial that by the common law of this Commonwealth the offence charged is not a crime, or what the common law of another State is, where the first conversation between the parties took place.</p> <p>.It is immaterial whether the intent of a person charged with obtaining money by false pretences was consciously directed to law breaking.</p> <p>If it is proved that the defendant in an indictment for obtaining money by false pretences that certain property was owned by him solely, that there was no encumbrance upon it, that he did not owe a dollar to any one, and that he intended to form a corporation and exchange the property for stock, pretended to own the property and did not, he is not entitled to ask that a verdict be directed for him. At the trial of an indictment for obtaining money from A. by false pretences that certain property was owned by the defendant solely, that there was no encumbrance upon it, that he did not owe a dollar to any one, and that he intended to form a corporation and exchange the property for stock, the defendant asked a ruling that the jury might find the false pretences as to the defendant’s ownership and freedom from debt immaterial. The judge instructed the jury that these were the representations upon which the government relied; and that, if the inducement to A. was complete in another State, where the first conversation took place, and the representations made here were not the inducement and operative cause to A. to part with his money, then the defendant should be acquitted, although he repeated the false representations to A. here before the money was delivered. Held, that this was sufficiently favorable to the defendant.</p>

Tort, against Mount Moriah Lodge, Ancient, Free, and Accepted Masons, described as a corporation, Olin C. Towle, George W. Waterman, and Stephen B. Cook, trustees of the same, for injury caused to the plaintiff’s property by the fall of a wall of a building.

<p>Will — Issues to Jury— Undue Influence — Motion for New Trial — Discretion of Presiding Justice.</p> <p>Where, on an issue whether an alleged will was procured through the undue influence of the testator’s son, no exception is taken to any ruling and no request for instructions is made, and the jury returns a verdict in favor of the will, a motion for a new trial, on the ground that the finding of the jury is against the law and the evidence and the weight of the evidence, is addressed to the discretion of the justice who heard the case, and cannot be revised by this court.</p>

<p>Writ of Error — Validity of Sentence— Unconstitutionality of ex post facto Law — Statute.</p> <p>On a petition for a writ of error to reverse a sentence of the Superior Court, by which the petitioner was confined in the State prison, it appeared that the offences of which he was convicted were committed between July 19, 1892, and November 17, 1893, but that he was sentenced on May 28, 1896, under St. 1895, c. 504, entitled “An Act relative to sentences to the state prison,” which took effect on January 1, 1896. As the law stood when the offence was committed, the petitioner was entitled to a deduction for good behavior, and to a permit to be at liberty for the time thus deducted on such terms as the prison commissioners should fix and subject to revocation by them. Held, that, as to the petitioner, the statute of 1895 was void as an ex post facto law, and that the case must be remanded to the Superior Court for sentence, according to the law as it was before the passage of the statute.</p>

<p>Assessment Life Insurance — Statute — Discrepancies between Original Application and Copy—Misrepresentations — Defences.</p> <p>Where, in an action upon a policy of life insurance, there are discrepancies of substance between the original application and the copy annexed to the policy, a finding that the copy so annexed is not a correct copy within the meaning of § 21 of St. 1890, c. 421, entitled “An Act relating to assessment insurance,” and a ruling that defences founded upon alleged misrepresentations in the application are not open to the defendant, are correct.</p>

<p>Petition in equity, filed June 8,1898, by ten taxable inhabitants of the city of Holyoke, to restrain the city treasurer from the payment from the city treasury of any money called for by the following order of the board of aldermen, passed on June 7, 1898: “ Ordered that a committee of five, including the president of the board of aldermen, be authorized to attend the Convention of American Municipalities at Detroit, said committee to be appointed by the president, and the expense to be paid from the contingent account. Voted to include the mayor on the above committee.” Hearing before Knowlton, J., who was of opinion that the injunction ought to be issued, as prayed for, but, at the request of the defendant, reported the case for the consideration" of the full court.</p>

<p>Petition to the Superior Court for an assessment of the damages occasioned by the taking of the petitioner’s land in Clinton by the Metropolitan Water Board, under St. 1895, c. 488. Trial, without a jury, before Graskill, J., who found for the petitioner, and, with the consent of the parties, reported the case for the determination of this court. If there was no error in any of the rulings, judgment was to be entered on the finding; otherwise, judgment was to be entered for the petitioner, in the sum of $3,500, — or of $2,200, — as law and justice required. The facts appear in the opinion.</p>

<p>Corporation—Criminal Contempt — Proceedings for Contempt on Court’s own Motion — Publications in Newspaper — Imposition of Fine on Corporation — Execution.</p> <p>A corporation may be held liable for a criminal contempt in publishing an article in a newspaper which is printed and circulated in the place where a trial is had pending the trial, and which concerns the cause on trial, and is calculated to prejudice the jury in the cause and prevent a fair trial.</p> <p>When it comes in any manner to the knowledge of the presiding justice of a court that articles are published in a newspaper circulated in the place where the court is held which are calculated to prevent a fair trial of a cause then on trial before the court, the court of its own motion can institute proceedings for contempt.</p> <p>It may be rightly adjudged a contempt of court for a newspaper to publish statements of facts, evidence of which was not competent at the trial of a cause and was not introduced at the trial thereof, if they were so made that it was likely that the presiding justice and the jurors would read them during the trial, and their natural and probable effect was improperly to influence the court and jury in the determination of the cause.</p> <p>The proper method of collecting a fine imposed upon a corporation for contempt is by levy of an execution, to be issued by the court.</p>

<p>Conversion — Partnership — Sufficiency of Evidence — Qualification of Expert — Exceptions — Mortgage.</p> <p>Where an exception to a refusal to direct a verdict for the defendants is put on the ground, which appears to be an afterthought, that the evidence that they were partners was insufficient, slight evidence to that effect uncontroverted will be deemed sufficient.</p> <p>At the trial of an action for the conversion of certain bottles, a witness testified to the market value thereof at the time of a conditional sale in question in H. He had been in the bottling business over thirty years, and in H. eleven years, and lie testified that he knew the market value of bottlers’ supplies in H. at the time. He bought these very bottles with his own name blown in them, and previously had often bought bottles with other men’s names blown in them. Held, that it could not be said that the experience of the witness showed that the judge exercised his discretion wrongly in admitting the evidence.</p> <p>It is a sufficient answer to an exception to the exclusion of evidence that the date . of a mortgage of personal property had been changed after recording so as to show, contrary to the fact, that it was recorded in time and was valid, that there was no evidence that the mortgage covered the merchandise in question, and that there was express evidence that it did not cover it.</p>

<p>Bond of Constable good at Common Law — Breach — Action — Answer signed by Attorney informer Action not admissible in Evidence.</p> <p>A bond given by a constable in a city other than Boston to the treasurer thereof is, if it was voluntarily executed and contains nothing in the condition contrary to law, a valid bond at common law.</p> <p>Where it is plain that the obligor in a common law bond given by a constable in a city other than Boston to the treasurer thereof intended to comply with the statute, and therefore, by implication, it was taken in trust for the benefit of the same persons who could take advantage of a bond in the statutory form, the damages will be measured by the interest of the cestui que trust, not by that of the obligee.</p> <p>The answer, signed by attorney in an action against a constable for the conversion of goods, is not admissible in evidence in a subsequent action, brought for the benefit of the same plaintiff against a surety upon the constable's bond, to enforce payment of the judgment recovered in the former action.</p>

<p>Contract, for the benefit of Edward E. Webster and George J. Marsh, administrators of the estate of Mabel A. (Miles) Webster, against Charles E. Ware, administrator with the will annexed of the estate of Mary J. Miles, upon a bond given by her to the Judge of Probate as the former guardian of said Mabel A., and approved on July 3, 1877. Mabel A., who was the wife of Edward E. Webster, died on July 2, 1885, and was then a minor, and the administrators of her estate were appointed on January 4, 1896. Mary J. Miles died on April 3, 1894, and the writ in the present case was dated May 8, 1896.</p> <p>The case was referred to an assessor, and afterwards reserved by Allen, J. for the determination of the full court. The facts appear in the opinion.</p>

<p>Complaint to the Police Court of the city of Brockton, under St. 1897, c. 271, entitled “ An Act to further regulate the transportation of spirituous and intoxicating liquors into no-license cities and towns,” and acts in amendment thereof, for the seizure and forfeiture of certain vessels and intoxicating liquors contained therein for not being marked as required by that statute. At the trial in the Superior Court, before 1Top-kins, J., the following facts were agreed upon.</p> <p>The New York and Boston Despatch Express Company, in whose possession the liquors were found, and from which they were seized, is a corporation regularly and lawfully conducting a general express business between Boston and Brockton. There was delivered to them to be transported into Brockton a barrel containing ten dozen bottles of ale, the barrel being marked on the outside simply, “ T. H. McCarthy, Brockton, Mass.”; and not being marked with the address by street and number of the claimant, nor with the name and address of the seller, nor with the kind and amount of liquor contained therein. Licenses of the first five classes named in the Public Statutes had not at the time of the seizure been granted in Brockton; and the liquors were not intended by McCarthy to be sold in violation of law, but were intended for his private use.</p> <p>The claimant requested the following rulings:</p> <p>“ 1. That St. 1897, c. 271, under which the vessels and liquors complained against were seized, is in violation of the fundamental principles of natural right and justice, which guarantee to every man the right to acquire property and enjoy it in any way consistent with the equal rights of others, free from all restrictions and regulations, unless the same are imperatively required by public necessity for the safety, comfort, and well being of society, and is up constitution al and void. 2. That in making said chapter 271 the Legislature exceeded the power conferred upon it by Article 4 of Chapter 1 of the Constitution of Massachusetts, which gives it full power and authority to pass and make only wholesome and reasonable laws and statutes, and is unconstitutional and void. 3. That said chapter 271 is in violation of Section 1 of Article 14 of the Amendments to the Constitution of the United States, which declares that6 No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law,’ and is unconstitutional and void. 4. That § 3 of chapter 271, which provides that all vessels or packages containing intoxicating liquors addressed and marked contrary to the particular provisions of § 1 of the same chapter, or to a fictitious person, or to a person unknown or who cannot be found, shall, with the liquor contained therein, be seized and adjudged forfeited to the Commonwealth, is in violation of Article 1 of the Declaration of Rights of the Constitution of Massachusetts, which declares that 6 All men . . . have certain natural, essential, and unalienable rights, among which may be reckoned . . . that of acquiring, possessing, and protecting property,’ and is unconstitutional and void. 5. That said § 3 is in violation of Article 12 of the Declaration of Rights of the Constitution of Massachusetts, which declares that ‘No subject shall be . . . deprived of his property, immunities, or privileges, . . . or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land,’ and is unconstitutional and void. 6. That said § 3 is in violation of Article 14 of the Declaration of Rights of the Constitution of Massachusetts, which declares that ‘ Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions,’ and is unconstitutidnal and void. 7. That said § 3 is in violation of Article 26 of the Declaration of Rights of the Constitution of Massachusetts, which declares that ‘ No magistrate or court of law shall . . . impose excessive fines, or inflict cruel or unusual punishments,’ and is unconstitutional and void. 8. That the provisions of Pub. Sts. c. 100, which by § 2 of St. 1897, c. 487, shall apply to the provisions of said chapter 271, and regulates all seizures and forfeitures of packages and liquor under said chapter, do not clearly and unequivocally require and direct such a course of proceedings as must be specifically prescribed in order to satisfy those requirements of the Declaration of Rights in the Constitution of Massachusetts which declares, Article 1, ‘All men . . . have certain natural, essential, and unalienable rights,’ among others ‘that of acquiring, possessing, and protecting property.’ Article 10, ‘ Each individual . . . has a right to be protected by it in the enjoyment of his . . . property, according to standing laws.’ Article 11, 6 Every subject . . . ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice’ freely and without being obliged to purchase it; completely and without any denial; promptly, and without delay; conformably to the laws.’ Article 12, 1 Ho subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to him ; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land,’ and is unconstitutional and void. That for each and all of the above reasons the vessels and liquors complained against were wrongfully seized, and should be ordered returned to the claimant.”</p> <p>The judge refused to give any of the rulings requested, and the claimant alleged exceptions. The jury found upon the issue submitted to them that the package contained intoxicating liquors which were addressed contrary to the provisions of St. 7897, c. 271. The court rendered judgment that the liquor and the vessels containing it were forfeited to the Commonwealth.</p>

<p>Beneficiary Association — Power to amend By-Law — Construction of By-Law.</p> <p>A beneficiary association organized under Pub. Sts. c. 115, which has reserved the power to amend its by-laws without limitation or restriction, may so amend them as to affect the right of a member to future benefits under a disability existing when the amendment is made.</p> <p>A by-law of a beneficiary association, providing that every member should have a right to five dollars a week if he became disabled during a period not exceeding thirteen weeks in each year, was amended so as to provide that “ when a member has received thirty-nine weeks of sick benefits ... he shall not hereafter receive more than one dollar per week, instead of five dollars, for thirteen weeks of each year,” during a period of five years. Held, that the amended bylaw applied to a member who, at the time of its adoption, was under a disability, and had received payment of benefits for thirty-nine weeks.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries received by the plaintiff while engaged in discharging coal. Trial in the Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to show that the plaintiff was injured while in the employ of the defendant, by being caught and jammed between a car used for the transportation of coal from a hopper to bins in which it was to be deposited for delivery when sold, and a certain apparatus called a pick-up; that this car was operated on a track elevated upon a trestle-work above the succession of bins in which the coal was dumped; that the car was propelled by this pick-up when power was communicated to it by the action of a certain apparatus called a triangle, and located beneath the hopper; that this triangle was connected with the pick-up by means of a rope or cable running over pulleys; that when loaded at the hopper the car moved upon this slightly inclined track by force of gravity until it came in contact with the pick-up, which it pushed to the spot where it was intended to dump the load; that at this spot was stationed on- the side of the rail a certain other apparatus so constructed as automatically to open the sides of the car and empty it of its load; that thereupon the car, being thus lightened, was pushed by the pick-up, by reason of the weight of the triangle communicating power to it, for a distance of about fourteen feet, and received an impulse that gave it requisite momentum to return to the hopper for reloading; that on the occasion of the accident to the plaintiff, the triangle, a loose plank having been temporarily caught beneath it, failed to work, so that the pick-up did not start the car, and it remained motionless upon the track at the spot where it was unloaded; that thereupon the plaintiff, who was standing at the time on the south side of the track watching the operation of the mechanism, and in a place of safety, inquired of one Rowe, who was standing at the hopper, what the reason was that it did not work, and was told that the trouble must be at the plaintiff’s end; that, without waiting to ascertain the difficulty, the plaintiff stepped upon the track in the rear of the pick-up and at once commenced to push the car away from the pick-up; that when the car had moved sufficiently, he stepped over the pick-up between that and the car and continued to push it along by hand; that at this moment, while the plaintiff was between the pick-up and the car, pushing the latter forward, and some little distance from the pick-up, the defendant’s foreman observed the plank under the triangle and directed a person to remove the same so that the triangle would work ; and that, upon his so doing, the triangle instantly fell, communicated power to the pick-up through the rope or cable, and caused the pick-up to advance upon the plaintiff, jamming him between it and the car, and causing the injuries complained of.</p> <p>■ On cross-examination, the plaintiff testified, among other things, as follows. He was' employed first in the forenoon of the day before the accident occurred, and went to work about noon of the following day. This accident was at the second time the car was loaded, and the first time it went down after he was assigned his place to work. At the time he was employed, one Witherell, the defendant’s superintendent, asked him if he would run the car for him. The plaintiff replied, “ No, I did not understand running it. I would like to go trimming.” Witherell replied, “ Yes, you do, I would like to have you go and run it; I have trimmers enough”; and further told the plaintiff to go up and run the car, and that he would send one Eowe to help him. At the time of the conversation, the plaintiff did not expect the car to be moved back by machinery, and did not know what trouble there might be in pushing it back before the job was finished. The first time the car was unloaded after the plaintiff went to work, it was not in charge of the plaintiff, who was at the hopper; and the apparatus failing to work, the plaintiff saw the car pushed back by hand. The plaintiff for about two years had been employed in another coal yard, and had seen dump cars operated- and unloaded automatically. He was always employed on the brow, and never at the hopper, and never had anything to do with the apparatus. He knew that there was a weight in a box connected in some way with the pick-up, and that the two together returned the dump car to the hopper. How connected and in what way it operated he did not know.</p> <p>There was other testimony tending to prove that the plaintiff by previous occupation had had experience in connection with a similar device for propelling cars in a similar service.</p> <p>There was evidence tending to show that Witherell was the superintendent of the defendant. There was other evidence tending to show due care on the part of the plaintiff, and negligence on the part of Witherell, at the time the plaintiff was hurt.</p> <p>The defendant asked the judge to instruct the jury as follows: “ If the jury find that the plaintiff engaged to run the car in question, and undertook that employment, and if the jury find the liability of the pick-up to injure a person in the situation in which the plaintiff was hurt to be proven, then that danger was an obvious risk assumed by the plaintiff, for which he cannot recover.” The judge declined to give this instruction.</p> <p>The defendant also requested the judge to instruct the jury that “ if they found that the plaintiff, when he asked the cause of the trouble, was standing in a place of safety, and without waiting to ascertain why the pick-up did not work, voluntarily placed himself in a position of danger and was injured in consequence, he cannot recover.”</p> <p>The judge gave this instruction, but modified it by adding at the conclusion the words, “ if he appreciated the danger, or in the exercise of reasonable diligence ought to have been aware of it.”</p> <p>Full general instructions appropriate to the case were given to the jury, which were not excepted to otherwise than as herein appears.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Use and Occupation — Action — Defence — Termination of Tenancy — Husband and Wife.</p> <p>A married woman, in an action against her for use and occupation of a tenement, lias no ground of exception to a refusal to rule that the tenancy created by a prior agreement between the plaintiff and the defendant’s husband must terminate and cease, either by an eviction or by the husband’s vacating the premises, and that if he was not evicted and did not vacate he was in possession, and the plaintiff could not recover.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, while in the defendant’s employ, by the fall of a part of a staging on which he was sitting while at work as a painter. The declaration contained three counts under the employers’ liability act, St. 1887, c. 270, one of which was subsequently waived; and one at common law, alleging failure to provide the plaintiff with safe instrumentalities for his work. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff under the fourth count; and the defendant alleged exceptions, which appear in the opinion H. Parker G. G. Milton, for the defendant.</p>

Tort, under Pub. Sts. c. 112, § 213, for personal injuries caused by a collision of the defendant’s engine with a sleigh in which the plaintiff was riding at a grade crossing in Franklin. The declaration contained three counts, the first of which alleged failure to give the signals required by statute, and that such failure contributed to the injury. Trial in the Superior Court, before G-ashill, J., who allowed a bill of exceptions, in substance as follows.

<p>Specific Performance of Agreement to buy Land — Cloud upon Title — Equity.</p> <p>If an agreement is made for the conveyance of land by a good and clear title free from all encumbrances, it is immaterial how the title has devolved in the past, if the deed tendered is sufficient to convey the full fee in the whole land free from encumbrances and from such clouds as in equity bar a decree for specific performance.</p> <p>Where the title to a portion of land agreed to be conveyed by a good and clear title free from all encumbrances descends from a deceased person upon whose estate administration has not been taken out, and sufficient time has not elapsed to raise a presumption that administration will not yet be granted, this court will not decree specific performance of the agreement; and the mere failure of the defendant to produce evidence that there are debts against the estate is not enough to show that the risk is so small that he should be compelled to assume it.</p>

<p>City—Sewer — Law and Fact—Action—Contributory Negligence — Damages.</p> <p>A city, in discontinuing a sewer upon building a new one, is bound to proceed with due regard to the fact that the premises of a person are connected with and drain into the old sewer, and if it fails to do so it is liable for the damages resulting to him therefrom, unless there was contributory negligence on his part.</p> <p>Whether the owner and occupant of premises connected with a sewer in a city knew or ought to have known that a new sewer was being constructed in the street, and was negligent in not connecting his premises with it, are questions of fact for the jury, in an action against the city for damages caused by walling up the old sewer.</p> <p>If a person whose premises in a city are connected with a public sewer knew, or by the exercise of reasonable care ought to have known, that a new sewer was being built and that the old sewer was walled up, and negligently omitted to connect his premises with the new sewer, or failed to take such measures of prevention or precaution as ordinary prudence would have required, he cannot recover against the city for any damages to which such negligence contributed.</p> <p>Where a sewer in a city is discontinued and a new one built, if the city trails up the old sewer, causing the water and sewage to set back upon premises connected with it, the owner is entitled to recover for the injury to his estate, including loss of rents and reasonable compensation for his trouble and expense in respect to his property, unless and except to the extent to which by reasonable care and precaution he could have guarded against such injury; but he cannot recover the expense of connecting his premises with the new sewer.</p> <p>In a joint action by the owners of an estate against a city for injuries caused, upon building a new sewer, by the walling up of an old one with which the estate was connected, they cannot recover for injuries to their health.</p>

<p>Contract, upon an account annexed, for work and materials. Trial in the Superior Court, without a jury, before Hopkins, J., who found and ordered judgment for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Contract, upon a judgment obtained in Kansas. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>Contract, to recover the amount of a check. Trial in the Superior Court, without a jury, before QasJcill, J., who found “ that at least after knowledge by the defendant, on- September 8, 1897, that the check in question had not been paid, the defendant treated the same as its property and became a purchaser for value of the same, and by its conduct after such knowledge in other respects, and in balancing the plaintiff’s deposit-book without notice or claim to the plaintiff at or prior to that time, of charging him with the amount thereof, it ratified its action in crediting said amount to him, and the same became and was treated by the defendant as an absolute credit to the plaintiff.”</p> <p>The defendant alleged exceptions. The facts appear in the opinion, and in a note thereto by the reporter.</p>

<p>Two actions OF contract, upon policies of insurance against loss by fire, issued by the defendants respectively in the.sum of SI,400 each, on the plaintiffs “frame building . . . situate at Woodlawn Grove, Lake Quinsigamond, Worcester.” The cases were tried together in the Superior Court, before G-ashill, J.</p> <p>The jury returned a verdict for the plaintiff in each case ; and the defendants alleged exceptions. The facts appear in the opinion.</p>

<p>Petition, filed August 13, 1897, for the assessment of damages caused by the taking of land of the respondent for a town way. At the trial in the Superior Court, before Blodgett, J., the only question open was that of the assessment of damages.</p> <p>The jury viewed the premises, and the parties introduced the testimony of expert witnesses upon the value of the land taken and the effect of such taking upon, the remaining land.</p> <p>Among other expert witnesses offered by the petitioners was John A. Macomber, who testified that he had been town clerk of Westport for twenty-two years, and that he had been a member of the Legislature, and, while such, Chairman of the Committee on Towns.</p> <p>Macomber testified that he was somewhat familiar with the premises from having been through there since the road was built; that he was engaged the previous autumn in appraising an estate located in the vicinity ; that his judgment as to what the land was worth in 1897 was based on what he had heard of the sales of adjoining land ; that he had known land there probably for thirty years, and had been upon it perhaps once or twice a year, sometimes oftener; that he had heard what land similarly situated, where there were certain cottages in a strip, had sold for; that he knew what certain, estates in the vicinity had been appraised for, and that in making his estimate of the land in question he took as a basis of his knowledge partly what land similarly located in the vicinity had been appraised for, and partly what he had learned from viewing the premises.</p> <p>The judge ruled that the witness wa,s not qualified to testify as an expert, and the petitioners excepted.</p> <p>The jury returned a verdict for the respondent; and the petitioners alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ, by the alleged negligence of the defendant. Trial in the Superior Court, before Grashill, J., who allowed a bill of exceptions, in substance as follows.

<p>Mechanic's Lien — Exceptions — Trial — Finding.</p> <p>No exception lies to the refusal to give a ruling which involves a question of law immaterial in view of the facts as determined by the justice, sitting without a ■ jury></p> <p>If tlie state of the evidence at the trial of a petition to enforce a mechanic’s lien, under Pub. Sts. c. 191, is such that upon the questions involved the justice, sitting without a jury, is justified in finding either for the petitioner or the respondent, and finds for the latter, his action cannot be disturbed or reversed.</p>

<p>Petition for a writ of certiorari, praying that the respondents certify their records relating to a certain appeal from an assessment of taxes, to the end that so much thereof as was illegal might be quashed. Hearing before Barker, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>The members of the business partnership of Lot Phillips and Company resided in the town of Hanover, where they had a box factory, wherein they manufactured boxes. In the town of Duxbury the firm owned a permanent sawmill, dam, and mill privilege, and in the sawmill they sawed large quantities of logs into box boards, and used the boards so sawed mainly at their box factory in Hanover in making boxes.</p> <p>On May 25, 1895, the firm made due return of property for taxation, pursuant to St. 1894, c. 294, to the assessors of Duxbury. They were assessed in Duxbury for their real estate situate therein, and also for wood, boards, and slabs at the sawmill. They duly appealed to the county commissioners from the assessment, and so much of the tax assessed upon them for the year 1895 as was assessed upon the wood, boards, and slabs was abated.</p> <p>If, upon the foregoing facts, the wood, boards, and slabs were stock employed in the business of manufacturing in Duxbury, and the sawmill where the logs or wood were sawed into boards and slabs was a manufactory within the provisions of Pub. Sts. c. 11, § 20, cl. 1, or if the sawmill was a place of business within the provisions of Pub. Sts. c. 11, § 24, the writ of certiorari was to issue; otherwise, the petition was to be dismisssd.</p>

<p>Mortgage — Insolvent Debtor ■—• Statute — Equity.</p> <p>A mortgage, which comes within the terms of St. 1888, c. 393, providing that “a mortgage of real estate recorded more than four months after its date shall not be valid as against an assignee in insolvency of the estate of the mortgagor appointed in proceedings in insolvency begun at any time after the date of the mortgage and before the expiration of one year from the recording thereof,” and which is avoided by an assignee in insolvency of the estate of the mortgagor, is void from its inception, and incapable of being the foundation of any rights in any mortgagee or vendee at a foreclosure sale.</p> <p>Bill m equity, filed in the Superior Court, under Pub. Sts. c. 157, § 46,. by the assignee in insolvency of the estate of George M. Buck, to redeem land in Brockton from a mortgage. Hearing before Braley, J., who ruled that the plaintiff was entitled to redeem ; and, at the request of the defendants, reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Petition by the defendant to vacate a judgment. Upon hearing in the Superior Court, before Mason, C. J., the petition was dismissed; and the defendant appealed to this court, both from the order dismissing the petition, and from the entry of judgment therein. The facts appear in the opinion.</p>

Tort, for personal injuries occasioned to the plaintiff by being struck by one of the defendant’s cars. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows.

<p>Writ oe entry, to recover possession of a parcel of land in Lynn. Trial in the Superior Court, without a jury, before Sheldon, J., who found for the tenant; and the demandant alleged exceptions. The facts appear in the opinion.</p>

Two ACTIONS OJF contract, against the administrator of the estate of James Johnson, the first being to recover money paid for taxes and repairs upon the intestate’s real estate, and for the funeral expenses of his wife; and the second being for services rendered to the latter. The cases were tried together in the Superior Court, without a jury, before Bond, J., who found for the defendant in each case ; and the plaintiffs alleged exceptions, which appear in the opinion.

Petition for partition of two parcels of real estate, one in Marblehead, and the other known as Baker’s Island in Salem Harbor. After the former decision, reported 167 Mass. 251, the case was tried in the Superior Court, before Hopkins, J. The jury returned a verdict for the respondents ; and the petitioner alleged exceptions. The facts appear in the opinion.

Bill in equity, by Williard C. Hardy, executor of the will of William N. Sanborn, and Addie M. Hardy and Susan A. Poore, two of the devisees thereunder, against the widow of the testator and others, praying that a deed given by the widow, within a year after the proving of the will, of all the testator’s real estate, might be decreed to be a fraud on the rights of the plaintiffs, that the grantee reconvey the same to the executor, and that the grantee be enjoined from…

<p>Three actions oe tort, the first two being for personal injuries occasioned to the plaintiffs respectively by an alleged defect in a highway in the defendant town ; and the third being for injury to the plaintiff’s property from the same cause. The cases were tried together in the Superior Court, before Bishop, J., who directed the jury to return a verdict for the defendant in each case; and the plaintiffs alleged exceptions, which appear in the opinion.</p>

Tort, for personal injuries occasioned to the plaintiff by the kick of a horse. At the trial in the Superior Court, before Hammond, J., the jury returned a verdict- for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

Action on Pub. Sts. c. 175, to recover possession of certain premises in Boston. Writ dated December 12, 1896. Trial in the Superior Court, before Maynard, J., who directed the jury to return a verdict for the defendant, and the plaintiff alleged exceptions, in substance as follows. The defendant claimed to be a tenant at will of one Edwin Dunlap, the owner of the premises.

Tort, for personal injuries occasioned to the plaintiff, an employee of the defendant, by the alleged negligence of the defendant’s superintendent. The declaration was under the employers’ liability act, St. 1887, e. 270.

<p>City Physician—Board of Health—Statute — Ordinance — Alien.</p> <p>The St. 1878, c. 21, (Pub. Sts. c. 80, § 15,) relating to the office of city physician, is confined to cities which have accepted St. 1877, c. 133, or the corresponding provisions of the Public Statutes, relating to the board of health in cities.</p> <p>In the absence of statutory authority, the city council of a city cannot delegate to the mayor its power to appoint a board of health.</p> <p>Judicial notice cannot be taken of the ordinances of a city, unless they are put in evidence.</p> <p>A person elected, under St. 1873, c. 246, § 13, city physician of Gloucester, which city is not shown to have accepted St. 1877, c. 133, relating to the board of health in cities, appears to have been duly elected, but he is not ex officio a member of the board of health under the provisions of an ordinance which purports to delegate to the mayor the power of the city council to appoint a board of health.</p> <p>An alien is eligible to the office of city physician'of a city, if he is not ex officio a member of the board of health.</p>

<p>False Representations—Evidence — Damages—Instructions.</p> <p>In an action for false representations, by which the plaintiff was induced to buy stock of a corporation, to the effect that a certain amount of the capital had been paid in, the plaintiff testified to the representations, and also put in a letter of the defendant written to a third person soon after the conversation, stating that . the corporation had no stockholders. The defendant was then asked by his • counsel to explain what he meant by the expression; but any explanation was excluded. Held, that the rule requiring the excepting party to show what the testimony was expected to be must be applied.</p> <p>It seems that, if a writing is put in merely as an admission, it may be explained by . the writer, even though the explanation contradict the proper construction of the written words.</p> <p>An instruction to the jury, in an action for false representations in the sale of stock, that if the plaintiff ought to have discovered the truth before he put in the money, they should find for the defendant, is sufficiently favorable to the latter.</p> <p>In an action for false representations, by which the plaintiff was induced to buy stock of a corporation, to the effect that a certain amount of the capital had been paid in, the defendants testified that they had put in the safe connected with the corporation’s office several hundred dollars of their own money which had been spent for rent, tools, and trips to another State in behalf of the corporation. An instruction to the jury was asked, that If the money “ was used by the defendants in the furtherance of the business of the corporation with the intention that it should be applied to the payment of stock as cash, the certificate of stock to be issued later, then they would not be justified in finding that it was a liability of the company.” Held, that the refusal of this instruction afforded no ground of exception.</p>

<p>Poor Debtor’s Recognizance — Agreement by Creditor for Continuance — Default of Principal — Defence to Action.</p> <p>Either the refraining from surrendering the principal in a poor debtor’s recognizance, or the surety’s promise to pay the execution on which the principal was arrested, is a consideration for an agreement by the creditor to continue the matter from week to week.</p> <p>Where the creditor in a poor debtor’s recognizance has agreed to continue the matter from week to week, provided the surety will pay by specified instalments the execution on which the principal was arrested, if at the time when the creditor has the principal defaulted the surety has done all that he was bound to do, it is immaterial that he has not kept his tender good.</p>

<p>Scire facias. Trial in the Superior Court, without a jury, before Richardson, J., who ruled that the legacies to Georgie S. Livermore were void, and went to the heirs at law of the testator as undevised estate, and that as the share of the original debtor, Elisha W. Shaw, in this personal property was $22.50, the plaintiff was entitled to judgment for that amount and costs; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Petition for a writ of certiorari, to quash an order or judgment of the Police Court of Lowell.</p> <p>The petition alleged that the petitioner, who was serving at the state prison a sentence of the Superior Court, was arrested on December 24, 1897, upon a complaint for the larceny of $3,500 upon a warrant issued from the Police Court of Lowell, and entered into a recognizance before a master in chancery, the material parts of which are as follows:</p> <p>“ The condition of this recognizance is such, that whereas, at a Police Court holden at Lowell, on the twenty-fourth day of December, in the year of our Lord one thousand eight hundred and ninety-seven, the said John Greenhalge alias John Reed was brought before said court by virtue of a warrant, issued in due form of law, to answer to the Commonwealth of Massachusetts on the complaint under oath of Charles Sweetser of Chelmsford charging him with the crime of larceny from said Charles Sweetser, and said court having ordered said Greenhalge, otherwise Reed, to recognize with sureties in the sum of seven thousand dollars for.his personal appearance at the said Police Court, next to be holden at Lowell, within the county of Middlesex, on the thirty-first day of December current at ten o’clock in the forenoon, to answer to said complaint, and to whatever else shall then and there be objected against him in behalf of said Commonwealth, and abide the order and the sentence of the court thereon, and also in like manner personally appear at any subsequent term of said Police Court to which the proceedings in the premises may be continued, if not previously surrendered and discharged, and so from term to term until the final decree, sentence, or order of the court thereon, and to abide such final sentence, order, or decree of the court, and not depart without leave. And whereas, for non-compliance with said order, the said Greenhalge, otherwise Reed, now stands committed to the jail in Cambridge, and whereas said Greenhalge, otherwise called Reed, has deposited with me the sum of seven thousand dollars in lieu of giving sureties, —</p> <p>“Now, if the said Greenhalge alias Reed, according to the above mentioned order of said court, shall personally appear before the said Police Court, next to be holden at said Lowell, within and for the county of Middlesex, on the thirty-first day of December current, and then and there answer to said complaint, and to whatever else shall then and there be objected against him in behalf of said Commonwealth, and abide the order and sentence of the court thereon, and also in like manner personally appear at any subsequent term of said court to which the proceedings in the premises may be continued, if not previously surrendered or discharged, and so from term to term until the final decree, sentence, or order of the court thereon, and abide such final sentence, order, or decree of the court thereon, and not depart without leave, then this recognizance to be void, otherwise to be and abide in full force, power, and virtue.”</p> <p>The petition further alleged that the Police Court had no jurisdiction to try or sentence the petitioner for said offence, and could only require him to appear at the next term of the Superior Court for the county, at the February sitting thereof, in accordance with the usual recognizance to the Superior Court, in which court the petitioner was present and was sentenced upon an indictment founded upon the offence charged and the same complaint instituted in the Police Court; that the Police Court had no authority to compel the petitioner to answer as required in the recognizance in that court; that the Police Court on December 31, 1897, the date on which the petitioner was required to appear therein for examination, entered a default upon his nonappearance, and unlawfully declared said sum of $7,000 forfeited, and on January 1,1898, paid over such sum to the county treasury for the county of Middlesex, without authority except such default; that the object of the proceedings was to secure the attendance of the petitioner at the Superior Court; that the petitioner was recaptured on January 14, 1898, and held for trial in the Superior Court at the same term or sitting when proceedings were first instituted to compel his attendance, when and where he would have been tried as required by the recognizance ; that by the terms of the recognizance, the petitioner was bound to appear at the court in which he was sentenced, and his recapture could not be pleaded in the Police Court of Lowell, the proceedings therein being terminated upon the default; that the Police Court had no right to forfeit his bail until after the term of the Superior Court to which the proceedings were instituted to enforce his appearance ; that the proceedings by which the bail was forfeited were beyond the jurisdiction of the Police Court of Lowell; that the adjudication of forfeiture deprived the petitioner of his property without an opportunity to appeal or have the matter determined by a jury, and was in violation of the provisions of the Constitution of the United States, and void; and that the proceedings were also in violation of the provisions of the Constitution of the Commonwealth, and void.</p> <p>The prayer of the petition was that the judgment or order of forfeiture be annulled and quashed; and that the treasurer of the county of Middlesex be directed to repay the sum so deposited to the petitioner, as provided in Pub. Sts. c. 212, § 66.</p> <p>An abstract of the record of the Police Court showed that, upon a copias issued by that court, the petitioner was brought before it, pleaded not guilty, waived an examination, and was ordered to be committed for trial before the Superior Court.</p> <p>The Police Court of Lowell demurred to the petition. Hearing before Barker, J., who, at the request of the parties, reserved the case upon the petition and demurrer for the consideration of the full court.</p>

<p>Contract, for board of Hugh Carberry, from July 11,1892, until May 6, 1896, the time of his death. Trial in the Superior Court, before Sherman, J., who, at the close of the evidence for the plaintiff, ruled that there was no evidence which would authorize the jury to find for the plaintiff, and directed a verdict for the defendant. The plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Complaint, to the Third District Court of Eastern Middlesex' for violating c. 44, § 26 of the Revised Ordinances of the City of Cambridge, which provides that “ No person shall place or cause to be placed upon any sidewalk any lumber, iron, coal, trunk, bale, box,, crate, cask, package, article, or thing whatsoever, whether of the same description or not, so as to obstruct a free passage for travellers for more than fifteen minutes.”</p> <p>The defendant justified under an execution duly issued by said District Court in an action brought therein to recover possession of the house described in the execution, under Pub. Sts. c. 175.</p> <p>Trial in the Superior Court, before Lilley, J., who, at the request of the defendant, reported the case for the determination of this court, in substance as follows.</p> <p>The defendant was a duly appointed constable of Cambridge, qualified to serve the execution which he served by removing the furniture of the defendant in the execution from the house, placing it partly on the street and partly on the sidewalk, and piling the same in as neat and compact a way as possible, and delivered possession of the house to the plaintiff in the execution. The defendant thereupon notified the chief of police and superintendent of streets of Cambridge that the furniture was on the street and sidewalk, and returned the execution into court.</p> <p>The sidewalk was not wholly obstructed, but upon the evidence the jury would have been warranted in finding that a free passage for travellers thereon was obstructed by the furniture so placed as aforesaid, and that the same remained on the sidewalk for more than twelve hours.</p> <p>The judge ruled that the defendant was not justified in placing the furniture, or any part thereof, on the street and sidewalk as alleged in the complaint, and directed a verdict of guilty with the consent of the defendant, which the jury thereupon rendered.</p> <p>If the ruling was right, the verdict was to stand; otherwise the verdict was to be set aside, all further proceedings were to be stayed on the complaint, and the defendant was to be discharged therefrom, or such other order made as to the court should seem proper.</p>

<p>Bill in equity, filed April 10, 1897, against Anton Bender, Caroline Reichardt, Ernst Hormel, and Willard Welch, to redeem certain real estate from a tax sale. A decree was entered in this court “ that the plaintiffs pay to the defendant Caroline Reichardt the original sum paid to the collector of taxes of the city of Boston, together with all intervening sums paid as taxes upon, said estate, with interest to the date of the decree, and the lawful costs, amounting to' §81.26 ; that the defendant Caroline Reichardt execute, acknowledge, and deliver to the plaintiffs a deed of release of the remainder in fee of said estate from the tax sale in said plaintiffs’ bill set forth ; and that the defendant Caroline Reichardt pay to the plaintiffs the costs of this suit, to be taxed by the clerk of this court.” The defendant Reichardt appealed to the full court.</p>

<p>Husband and Wife — Conveyance — Presumption — Gift — Validity; as to Creditors.</p> <p>Where a husband conveys land to his wife, the presumption is that it is a gift to her, and, although the presumption may be rebutted by evidence, the facts that the transfer, which was without pecuniary consideration, was made for the purpose of having the property stand in the wife’s name instead of the husband’s, that after such conveyance the husband and wife joined twice in mortgaging the property to raise money for his business, that at all times the insurance on the house upon the premises was taken out in his name as owner, and was never assigned to her, and that all payments of interest on a prior mortgage were made by the husband’s check, are not sufficient to overcome the presumption.</p> <p>If, at the time when a husband conveys land to his wife without pecuniary consideration he owed business debts, but it does not appear that he was insolvent or in contemplation of insolvency, nor that there were any creditors then existing who had not since been paid whatever at that time was due them, nor that there was not left in his hands sufficient to pay his creditors as their claims matured, and it does appear that he actually did pay until more than a year afterwards, the conclusion that the conveyance was made for the purpose of delaying or defrauding creditors is not warranted, and the conveyance will not be held to be void as to them; and the facts that, after the conveyance, the husband and wife joined twice in mortgaging the property to raise money for his business, that at all times the insurance on the house upon the premises was taken out in his name as owner, and was never assigned to her, and that all payments of interest on a prior mortgage were made by the husband’s check, do not show that the property ever thereafter passed to him.</p>

<p>Bill in equity, filed July 13, 1897, in the Superior Court, against the executrix of the will of Isaac D. Dana and the Atlas National Bank, to recover money alleged to belong to and to be held in trust for the plaintiff by the defendant Dana. A decree was entered for the plaintiff; and the defendant Dana appealed to this court. The facts appear in the opinion.</p>

<p>Judgment — National Bank — Name — Variance — Finding.</p> <p>In an action upon a judgment recovered in another State, the writ described the plaintiff as “the United States National Bank of New York,N. Y., . . . having its usual place of business in the city and State of New York.” The plaintiff put in evidence certified copies from the comptroller of the currency of documents showing the incorporation and existence of a national bank under the name of “The United States National Bank of the City of New York/' and also evidence tending to prove the identity of the bank that recovered the judgment with the present plaintiff, and that there was not in New York any other bank having the same or a similar name. The judgment roll recited that the judgment was rendered in favor of “ The United States National Bank,” and the complaint set forth that the plaintiff therein was organized under the National Bank Act, "and carrying on business in the city of New York as a National Bank.” Held, that no material variance, if any, was shown; and that a finding for the plaintiff was warranted.</p>

Tort, for injuries caused by the bite of a dog, which the plaintiff alleged was kept by the defendants. At the trial in the Superior Court, before Sherman, J., there was evidence tending to show that the injury occurred on July 17, 1897, as the plaintiff was walking along a public highway which passed the defendants’ residence in Medfield.

<p>Tort, for personal injuries. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Contract — Agreement to accept a Part of a Debt in Payment for the Whole — Compromise of Disputed Claim.</p> <p>An agreement to accept a part of a debt in payment for tlie whole is not binding unless it is made by an instrument under seal.</p> <p>Where there is no dispute or uncertainty about the amount of a debt, the rule in regard to the compromise of disputed claims and the settlement of unliquidated and doubtful claims does not apply.</p>

<p>Contract, upon an account annexed, for money had and received. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>Contract, to recover the amount of a tax assessed by the defendant to the plaintiffs on May 1,1896, and paid under protest. Trial in the Superior Court, without a jury, before Sheldon, J., who ruled that, upon the evidence, he was warranted in finding for the plaintiffs, and so found for a sum stated; and reported the case for the determination of this court. • If the ruling was right, judgment was to be entered on the finding for the plaintiffs; otherwise, the finding was to be set aside and a new trial granted. The nature of the evidence appears in the opinion.</p>

<p>Contract, for breach of a written contract to furnish the plaintiff with a quantity of bicycles. Trial in the Superior Court, before Hardy, J., who directed the jury to return a verdict for the plaintiff in the suxn of one dollar; and he alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for personal injuries sustained by the plaintiff on September 22, 1896, while in the employ of the defendant at its quarry in Quincy. The declaration contained several counts. The fourth count, on which alone the jury found for the plaintiff, was under the employers’ liability act, the St. of 1887, c. 270, § 1, els. 1, 2, and alleged, among other things, that the injuries were caused by the negligent manner of moving a stone in the quarry. Answer, a general denial. At the trial in the Superior Court, before Bond, J., the defendant alleged exceptions, which appear in the opinion.</p>

<p>Will— “ Heir by Blood ” —Illegitimate Child.</p> <p>Where a testator plainly intended by the use of the term “ heirs by blood ” to indicate those persons whose relationship was by some tie of consanguinity, and to exclude all others, such as husband, wife, or adopted children, an illegitimate son must be regarded within the meaning of the will as the “ heir by blood ” of bis mother.</p>

Bill in equity, filed March 7, 1898, against George Henry Cooley and Lulu Josephine Cooley, minor children of the plaintiff, to establish a resulting trust in land in favor of the plaintiff. Trial in the Superior Court, before Braley, J., who reported the case for the consideration of this court, in substance as follows.

<p>Contract, upon a bond executed on June 8,1895, by Perry Yarrington as principal, and by the defendants and others as sureties, and conditioned to indemnify the plaintiff for all loss sustained by reason of his becoming bail for Yarrington, who had been arrested upon a requisition from the Governor of the Commonwealth on an indictment against him in the county of Worcester.6 The joint answer of the defendants alleged, in substance, that after the execution of the bond the plaintiff agreed orally with the defendants that, if they would procure Yarrington to be surrendered to the plaintiff in this Commonwealth, in consideration thereof the plaintiff would thereupon discharge all the sureties from liability on the bond, and thereby the condition of the bond should be fully satisfied, and he would waive any further performance of such condition; that the sureties delivered Yarrington to the plaintiff and fully performed their agreement; and that the defendants were entitled in equity to be absolutely relieved against the plaintiff’s cause of action by reason of such agreement and its performance, and, further, that the plaintiff agreed with the defendants to surrender Yarrington to the authorities of the county of Worcester, and the defendants requested the plaintiff to so surrender Yarrington, but the plaintiff let him go at large.</p> <p>Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff offered evidence tending to show that the defendants, with the other obligors on the bond, executed the same; that the plaintiff recognized for the appearance of Yarrington, as recited in the bond; and that in August, 1895, Yarrington made default on the recognizance, and a suit was commenced by the Commonwealth against the plaintiff on his recognizance, and he paid the sum of $2,100 in settlement of that case.</p> <p>The defendants called as a witness one John M. Brennan,, who testified, in substance, that Yarrington was arrested in Providence, Rhode Island, just before the time of making the bond in suit, on a requisition from the Governor of Massachusetts, and was brought from Providence to Worcester and lodged in jail, on an indictment in the Superior Court; that the witness was retained as counsel for Yarrington in the matter of the indictment and requisition, and procured the plaintiff to bail him out, and further procured the bond in suit to be made, the sureties being friends and clients of the witness; that all the sureties signed the bond at his request; that no indemnity or inducement was offered to the sureties for signing the bond; that a consideration of one hundred dollars was to be paid to the plaintiff for going bail for Yarrington ; that, some time after the bond was signed and Yarrington was at large upon bail,6 the latter was arrested again in Providence upon a complaint that he was a fugitive from justice from the State of New York, and was in jail in Cranston, Rhode Island; that thereupon Brennan, acting’ for all the parties, sent for the plaintiff and made an oral agreement with him that Brennan would procure Yarrington to be bailed in Providence upon the complaint, provided the plaintiff would give a power of attorney to a person in Rhode Island authorizing him to take Yarrington upon the Massachusetts bail bond and bring him here; that thereupon the attorney should bring him to Massachusetts and surrender him upon his bail bond to the authorities here, or surrender him to the plaintiff, and that Brennan would pay the expenses of taking Yarrington to Massachusetts, and the plaintiff should, in consideration thereof, discharge the sureties and surrender the bond; that the plaintiff - furnished the power of attorney, and Yarrington was sent to Massachusetts; and that Brennan procured the bail as agreed. The defendants offered evidence tending to show that the attorney under the power of attorney, one Winslow, brought Yarrington to Massachusetts and surrendered him to the plaintiff.</p> <p>The defendants also offered other evidence corroborative of the testimony of Brennan, with reference to the oral agreement with the plaintiff, as to ’the surrender of Yarrington, and as to the agreement to discharge the sureties on the bond.</p> <p>The plaintiff contradicted this evidence of the defendants, and offered evidence tending to show that he furnished the power of attorney at the request of Brennan for a different purpose from that testified to by Brennan, namely, that the sureties on the bond might be protected by having Yarrington in Massachusetts, where the plaintiff could, if he saw fit, take him upon his bail bond, and prevent his being taken to New York by means of requisition papers from that State; and he denied the contract testified to by Brennan and other witnesses for the defendants, and denied also that he ever agreed to receive Yarrington or to surrender him, and that Yarrington was ever surrendered to him in any manner or form.</p> <p>On cross-examination, Brennan testified that he was retained by Yarrington as his attorney. The plaintiff’s counsel asked him how much his retainer was. Upon objection being made, the judge excluded the evidence. The plaintiff then stated that he proposed to show that Brennan received a large sum of money from Yarrington to indemnify the sureties, but the judge excluded the question; and the plaintiff excepted.</p> <p>The plaintiff then asked Brennan how much money he received from Yarrington. The judge excluded the evidence, saying that he would admit the question as to how much he received, if any, to indemnify him or the sureties on the bond ; and the plaintiff excepted. Brennan denied that he received any money from Yarrington to indemnify the sureties on the bond. The plaintiff then asked the witness if Yarrington did not let him have $1,200 or more, stating that he desired to show that the^ witness received a large sum of money from Yarrington, and' submit to the jury the question whether it was not received for some purpose other than that of services as counsel. The judge excluded the evidence, and the plaintiff excepted.</p> <p>At the close of the evidence, the plaintiff asked the judge to rule as follows:</p> <p>“ 1. The instrument sued on in this case, being a written instrument under seal, cannot be released or waived by a mere verbal agreement, and no verbal agreement of the plaintiff to release the bond can have any effect to discharge the defendants from "liability.</p> <p>“ 2. If the defendants executed the bond in suit and delivered it to the plaintiff, and thereafter Yarrington made default in the criminal court of Worcester and failed to indemnify and save harmless the plaintiff according to the condition of the bond, the defendants are liable, notwithstanding the. fact that Yarrington was taken by an attorney of the plaintiff and brought from Rhode Island to this State, and notwithstanding the fact that the plaintiff failed to surrender him.</p> <p>“ 3. If the defendants executed and delivered the bond, and Yarrington made default thereon and failed to indemnify the plaintiff according to the condition of the bond, the defendants are liable in this action, even though the plaintiff verbally agreed with Brennan, or with either of the" defendants, that he would surrender the body of Yarrington to the authorities at W orcester.</p> <p>“ 4. If the defendants executed and delivered the bond in suit, and Yarrington voluntarily defaulted upon his recognizance in Worcester, the facts set out in the joint answer of the defendants do not constitute any defence to this action.”</p> <p>The judge declined to give these rulings, but instructed the jury as follows:</p> <p>“ If the plaintiff agreed substantially with the sureties on the indemnity bond, or the other agents, the people who represented them, if they would procure the release of Yarrington from custody in Rhode Island, and by means of a power of attorney to be given by the plaintiff to some one in Rhode Island, who should at the expense of the sureties on the indemnity bond bring Yarrington from Rhode Island to Massachusetts and there deliver Yarrington to the plaintiff to be delivered up to the authorities by the plaintiff or to be delivered under the power of attorney to the authorities in Worcester County, and that then the plaintiff should surrender to them the indemnity bond, and if the defendants performed their part of that arrangement and did deliver Yarrington to the plaintiff in Massachusetts, and the plaintiff took the control and custody of Yarrington and prevented Winslow from taking Yarrington to Worcester, or accepting Yarrington from Winslow in pursuance of the agreement he had made with the defendants, and then the plaintiff made some arrangements with Yarrington whereby Yarrihgton was to remain in Boston, and by reason of such an arrangement made by the plaintiff with Yarrington, Yarrington was enabled to depart so he did not appear when he was called in Worcester, then the plaintiff is not entitled to recover. In other words, if the arrangement was made, and was fully performed on the part of the defendants, and the plaintiff took the responsibility, in this Commonwealth, of what should be done with Yarrington, and allowed him to depart' for any reason, whether it was by virtue of "some agreement that he had made with him, — if any consideration whatever, it is not material, but if he allowed him to go instead of surrendering him under the arrangement that was made, then it is his fault that there was a loss on his part, and he would not be entitled to recover here.”</p> <p>The plaintiff excepted to the refusal to give the rulings requested, and to the instructions given.</p> <p>The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Personal Injuries — Master and Servant — Railroad — Due Care — Assumption of Risk — Law and Fact — Negligence.</p> <p>If a brakeman in the .employ of a railroad corporation is ordered to couple to a train a flat car loaded with stones which lay on the floor of the car unsecured with cleats, stakes, or blocking, as was customary, and while so coupling it is injured by having his arm caught by one of the stones which was forced over the’edge of the car by the concussion caused by the cars coming together, in an action for his injury it cannot be held, as matter of law, that he was negligent in failing to observe that the stones were unsecured, or that the risk was so obvious that he assumed it, but these questions are for the jury, who will be warranted in finding that he was in the exercise of due care.</p> <p>Where a railroad corporation has in its possession for nearly a week a flat car, originally loaded with stones by it, and then orders the car to be coupled to a freight train for transportation to a point farther along upon its road, if the stones are not secured with cleats, stakes, or blocking, as was customary, and a brakeman in its employ while coupling the car is injured by having his arm caught by one of the stones which was forced over the edge of the car by the concussion caused by the cars coming together, in an action for the injury, the jury are warranted in finding that the corporation was negligent in furnishing for transportation- a car loaded in a dangerous manner.</p>

<p>Tort, for personal injuries sustained by the plaintiff, while a passenger on the defendant’s car, through the alleged negligence of tho defendant. After the former decision, the case was tried in the Superior Court, before Dewey, J.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Equity — Injunction — Decree — Finding.</p> <p>When the evidence is not before the court, and it does not appear as matter of law from the facts set forth in the decree that more relief ought to have been granted, this court cannot revise the finding of the single judge.</p>

<p>Bill in equity, filed May 29, 1897, alleging the following facts.</p> <p>The plaintiff was the owner of a certain parcel of land in Southborough. On July 18, 1896, there was on said parcel a quantity of bricks, the title of which .was partly in one Rooke, an insolvent debtor, and in the plaintiff as mortgagee. By her consent, the same was sold at public auction to the defendant company by the assignee of Rooke, to be removed and taken away in a fortnight’s time from that date, July 18, and she notified the defendant to remove and take away the bricks within that time. Afterwards the defendant promised so to do, and the plaintiff gave the defendant until August 31, 1896, to remove and take away the same, and refused and continued to refuse to give the defendant company permission further to enter upon the premises for any purpose whatsoever, and posted notices against all trespassers according to law.</p> <p>The defendant wholly- neglected to remove the bricks; and notwithstanding the plaintiff’s refusal of permission to enter upon the premises to remove the same after the time set therefor and extended for that purpose as aforesaid, the defendant broke into the premises against the plaintiff’s will and permission and trespassed thereon, and took and carried away therefrom certain bricks, the property of the plaintiff, and threatened to continue so to do for an indefinite period.</p> <p>The prayer was for an injunction, and that the defendant be required to pay the plaintiff the value of the bricks unlawfully removed, and such other damages as were caused by the trespass. The defendant demurred, assigning as ground therefor that the plaintiff had a plain, complete, and adequate remedy at law. The Superior Court sustained the demurrer, and dismissed the bill; and the plaintiff appealed to this court.</p>

<p>Declination of Appointment as Executor — Petition for leave to retract, and for Appointment as Co-executor.</p> <p>J., one of two executors named in the will of T., declined appointment in January. In February, T., the other executor, filed a petition for the probate of the will and for letters testamentary. On March 8 the will was proved, and letters were granted to T, An appeal was taken, and on June 11 the decree of the Probate Court was affirmed. On July 1, J. filed a petition for leave to withdraw his renunciation and to he appointed executor jointly with T. On July 2, T. filed his bond and took out letters. On July 29 the Probate Court made a decree that letters testamentary should issue to J. as co-executor with T. Held, that after June 11 it was too late for J.’s petition to be entertained, supposing that further proceeding upon it would not have been cut off on July 2 by T.’s receipt of his letters after giving bond.</p>

<p>Erroneous Instructions — Action by Executor or Administrator on Life Insurance Policy — Exceptions — Assignment of Life Insurance Policy—Application — Misrepresentations — Questions for Jury — Consumption — Risk of Loss.</p> <p>It cannot be said that verdicts rendered under erroneous instructions shall stand, when it appears that any defence will be open on a new trial.</p> <p>The St. 1894, c. 225, relative to actions on life insurance policies, is construed to allow an executor or administrator to sue when the assent of the beneficiary to whom the policy is payable appears or is to be presumed, no action being instituted by the beneficiary himself.</p> <p>In an action on a life insurance policy there is no ground of exception to the exclusion of questions put to the beneficiary, who had assigned the policy to another as security for money due, as to when that indebtedness was paid, and whether it was paid before the death of the insured, as it is immaterial whether the indebtedness was paid before the death of the insured.</p> <p>As in an action on a life insurance policy the defences which might be made if thS application were part of the contract were in fact on trial by the jury, the evidence as to applications by the insured to other insurers was relevant and competent upon the issue whether his alleged misrepresentations to the defendant company were made with actual intent to deceive.</p> <p>In an action on a life insurance policy there is no error in the ruling that’the jury are to disregard those questions in the applications to which no answer was made.</p> <p>The credibility of witnesses and the weight of evidence are for the jury.</p> <p>Consumption is a disease of such a nature that, as matter of law, a misrepresentation as to it in an application for life insurance is a misrepresentation as to a matter which increases the risk of loss.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries alleged to have been caused by the negligence of the defendant’s superintendent. Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared in evidence that the plaintiff was employed in digging a sewer trench in the defendant town, the trench being dug under the direction of one Brainard Putnam, superintendent of sewers in the town, and that the plaintiff was engaged in blasting rock in a line of the sewer, his occupation being that of holding the drill while two other men were engaged in striking the drill. The plaintiff testified that he, and the men engaged with -him, went to work in the morning" drilling a hole in the rock near the surface of the ground, and a charge of dynamite .had been placed in this hole, and the rock had been blasted at this place; that the only orders that he received from the superintendent were orders to go to work blasting rock, without any direction as to where he should do the work ; that he went to work at another point, where the ditch was from four to six feet deep, and where the earth had fallen in from the sides of the ditch and been thrown out, the falling of the earth being caused by the blasting which had been done; and that he went to work at this particular place of his own motion, and without any direction from the superintendent. It appeared that this earth had fallen, in some places, in such a way that the top or crust of the earth extended over the ditch below. While the plaintiff was engaged in holding the drill at this place, the superintendent walked along upon the bank and stopped there, looking down at the workmen, and while so standing, the earth, with the superintendent upon it, fell into the ditch and against the shoulders and back of the plaintiff, and caused the injuries complained of. It appeared in evidence that the plaintiff had been engaged for many years in digging ditches and blasting rocks, and was familiar with such work. It did not appear that the superintendent at this time gave any directions in regard to the work or had any control of the work at this point,' except as it appeared in evidence that he had general control of the whole work of digging the sewer trench. One of the witnesses, not in any way connected with the work, testified that he saw a crack in the earth ten or twelve feet long, which was extended around the place where the superintendent was standing when looking at the plaintiff and others at work in the ditch, but it did not appear that the superintendent, or any person connected with the work, saw this crack in the earth, or had their attention in any way called to it.</p> <p>At the close of the evidence, the defendant asked the judge to rule that there was no evidence of due care on the part of the plaintiff; and that there was no evidence of negligence on the part of the defendant, the defendant contending that the acts done by the superintendent, as testified to by the plaintiff and other witnesses, were not acts of superintendence, and the defendant was in no way responsible therefor. The judge refused so to rule.</p> <p>The jury were fully instructed as to the duty of the plaintiff, to prove that he was in the exercise of due care, and as to the risk which he assumed while engaged in his work. With reference to the condition of the side of the trench where the evidence tended to show there was a crack, the judge instructed the jury as follows : “ That leads me to call your attention to a matter which perhaps he did not see and did not know of, because he could not see it down in the ditch where he was at work. That is, the condition of the bank, the hard portion of the road-bed — crust, if I may so refer to it — had been cracked away, not that it had fallen, but there was a visible crack in it at the place where it finally broke down, and it was that part that was between the ditch and that crack that finally went down. Now, if the plaintiff did not know that, if he did not understand that was the condition of things, and that added to the danger, then he did not know and appreciate the danger. It is for you to say whether that was the condition, because you can see the importance of that in determining this question, whether that was the truth with reference to that bank at that time. Had the under part of this bank broken down so that there was a portion of the road-bed, the hard firm part of it, hanging over with no support under it, and had it in addition to that a crack, whether from the weight being unsupported or whether "from a jar that was received from the blasting, or from the constant jar that might come there from drilling and to some extent by the use of the road by teams outside of this, had that crack opened so there was but little to hold it, that part which finally fell off ? If so, and that added to the danger, that was not one of the risks that the plaintiff knew and appreciated, and therefore assumed. If it could not be seen down in the ditch, it was not his duty to go outside and inspect, because, as I have already said to you, he had a right to rely upon the duty of the master, and that the master would perform his duty toward him with reference to the place where he was at work. It was his duty to go on and do Ms work, and he had the right to rely upon the master doing what belonged to him to do.”</p> <p>The jury were fully instructed as to the duty of the defendant towards the plaintiff, to which no exception was taken.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Equity — Parties — Mortgage — Bill to redeem — Husband and Wife — Fraud — Accounting.</p> <p>If a bill in equity is brought by a married woman to redeem land -which had been conveyed to her by her husband from a mortgage given by them to one of the defendants and assigned to the other, and a master’s report finds that nothing is due on the mortgage to either defendant, but that a third person has an equitable claim under it as security for an amount due him from the plaintiff and her husband, and the decree entered thereon directs the plaintiff to pay him such sum, and after such payment the mortgage to be discharged, both the third person and the plaintiff’s husband should be made parties to the bill before the case can properly be finally disposed of.</p> <p>Where land has been conveyed by a husband to his wife, and by them mortgaged to a third person in order to prevent it from being reached by the husband’s creditors, it is not necessary, in order to maintain a bill in equity to redeem the land, to show that the transaction has been purged of the fraud which led to the conveyance and mortgage; but if accountings have taken place between the mortgagors and a third person, who is found to have an equitable claim under the mortgage as security for an amount due him from them, such accountings mhst be regarded as settling the amounts due under the .mortgage when they were had, and the objection that they related to sums advanced subsequently to the giving of the mortgage cannot prevail, if it is found that it was understood and agreed between the parties that the mortgage should stand as security for such sums.</p>

Two actions of contract upon promissory notes. The first of the notes in the first case was as follows: “ $2,OOO.ff0-. Grafton, February 1st, 1892. Four months after date we promise- to pay to the order of ourselves two thousand dollars at Grafton National Bank. Value received. Wheeler Cotton Mills, Henry F. Wing, Treas’r.” Indorsements: “ Waiving demand and notice. Wheeler Cotton Mills, Henry F. Wing, Treas.

<p>Contract, upon a bond alleged to have been executed by the Scituate Water Company as principal, and by Samuel Shaw and Harry J. Jaquith as sureties, and given under a petition for the review of a judgment obtained by the plaintiff against the Scituate Water Company. At the trial in the Superior Court, before Braley, J., the jury returned a verdict for the plaintiff; and the defendant sureties alleged exceptions. The facts appear in the opinion.</p>

<p>Petition, for a writ of prohibition, filed December 10,1897. The respondent filed a motion to dismiss the petition, and demurred thereto.</p> <p>At the hearing, before Morton, J., there was evidence tending to show that on or about September 10, 1897, the Wilbur Shoe Company, a foreign corporation, obtained a judgment in an action of contract against the petitioner in the amount of $274.57; that prior to the rendering of the judgment the petitioner was declared an insolvent debtor by the Court of Insolvency on December 11, 1896, and obtained his discharge in composition on March 25, 1897 ; that of the amount included in the judgment, $244.26 was for merchandise and interest, sold by and accruing to the Wilbur Shoe Company prior to the first publication of the notice of the issuing of the warrant in the insolvency proceedings, $24.57 was for merchandise sold by the Wilbur Shoe Company since July 26, 1897, and $5.74 was for costs; that this judgment was obtained in the Second District Court of Bristol; that that court issued a notice under Pub. Sts. c. 162, § 19; that the petitioner appeared in court and was examined, and that the case on the examination was submitted to the respondent, the special and acting justice of said court; that the petition for the certificate authorizing the arrest of the petitioner was based on the grounds specified in Pub. Sts. c. 162, § 17, cl. 1; that the petitioner contended that he could not be arrested upon the judgment; that the respondent herein found that the petitioner had certain personal estate which could not be taken on execution, and ordered the petitioner to convey to the Wilbur Shoe Company the said property, which could not be taken on execution under a conveyance; and that the petitioner refused to make the conveyance, and thereupon the respondent intimated and said that he would issue a certificate authorizing the arrest of the petitioner, and would order his arrest.</p> <p>The prayer was for a writ prohibiting the respondent from proceeding further in the hearing of the petition of the Wilbur Shoe Company for the petitioner’s arrest,, and from ordering his arrest or from issuing a certificate therefor, and prohibiting the respondent pending the hearing from acting further in the proceedings. The order was that a writ of prohibition should issue. The defendant appealed to the full court.</p>

<p>Personal Injuries — Parent and Child — Negligence — A ction — Law and Fact — Evidence — Question for Jury.</p> <p>A-woman and her daughter were invited to join a party upon an excursion, and tlie former accepted the invitation on condition that she might pay one half the cost of the carriage, and made such payment. The party, consisting of four persons, occupied a two-seated carriage drawn by two spirited horses. The daughter, who was nineteen years old and of slight build, and had had very little experience in driving, was allowed to drive the horses. In returning from the excursion the carriage formed part of a long procession of carriages, and upon reaching a level stretch after coming down an incline in the road, the pole of the carriage entered the back of a carriage in front of it and injured a person therein. A by-stander, who knew the mother and daughter, called out to them, “ What are you trying to do 1 ” The daughter replied, “ Well, I can’t hold them,” and the mother said, “ She’s all right.” Subsequently the mother tried to conceal from the injured person the identity of the occupants of the carriage. Held, in an action against the mother and daughter for the injury, that the question of the mother’s liability was rightly submitted to the jury; and that the evidence of the admissions was also for the jury.</p>

<p>Shade Trees located in Highway by Road Commissioners — Personal Injuries — Question for Jury.</p> <p>Where, in an action fpr personal injuries occasioned to the plaintiff by collision with shade trees on a public highway, it is not contended that the accident was due to any defect in the trees themselves, and there is nothing to show that there has been any change since the road commissioners located the trees, the law declares that they do not incommode or endanger the public travel, and this decision cannot be revised by a jury.</p>

<p>Tort, for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. Trial in the Superior Court, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant leased an entire building in Taunton, which consisted of two stores in the lower story and two tenements in the upper story, to one Pierce, who orally let the tenement in the front of the upper story to the plaintiff’s son, with whom she lived. The rear tenement was let to another person. In the rear of the building on the outside was an uncovered wooden stairway consisting of fourteen steps. This was the only entrance of the rear tenement, and was the only means of access to and egress from the plaintiff’s tenement to the yard below, where the outhouses, coal, and fuel boxes were. There was a front entrance or stairway leading from the plaintiff’s tenement to the street, but from this entrance one could not get to the back yard without going on land of another person.</p> <p>This house was one of the oldest houses in Taunton, and in the general condition of an old house, and the steps were in the same general condition.</p> <p>When the tenement was let to the plaintiff’s son by Pierce, there was evidence, not objected to by the defendant, tending to show that it was"stated by Pierce that the defendant, the owner, had made a lease which was still in‘effect, in which it was stated that all the outside repairs of every kind and description were to be made by the owner, and all the interior repairs of the entire building were to be made by the lessee, Pierce; and no evidence was offered by the defendant to contest this statement. The defendant was not present at the trial.</p> <p>The lease was not produced, and no effort was made to account for its absence.</p> <p>Certain inside repairs were mentioned as necessary by the plaintiff’s son at the time of hiring, which were done by Pierce before the former took possession of the tenement.</p> <p>On August 20, 1897, about four o’clock in the afternoon, the plaintiff went down in the back yard to the outhouses, and while returning with three or four sticks of kindling in one hand, and while mounting the steps, having hold of the rail which protected them with the other hand, fell when she got on to the seventh step, which broke or “ slivered off.” Pierce, the plaintiff, her son, and two other witnesses testified that it looked as if the breaking was because of dry rot, as the steps showed every indication such as a board subject to dry rot shows. There was no evidence introduced by the defendant to show that the plaintiff was not in the exercise of due care. The testimony of Pierce showed that the step looked to be rotten when he saw it the day after the accident. The plaintiff testified that the steps showed no outside indication of being dangerous, or rotten; that she was sixt)r-four years of age, and had lived in the tenement for about eight months at the time of the injury; that the steps were in substantially the same condition as when she first moved in ; and that neither she nor her son had ever seen the defendant.</p> <p>All the evidence showed that the steps were in the same condition when the accident to the plaintiff occurred in which they were when the plaintiff’s son hired the tenement.</p> <p>There was no dispute but that the break in the step was of the projecting part of the tread, that it “ slivered off ” about three fourths of the length of the whole tread, and that the rest of the step wras not broken. »</p> <p>The evidence was uncontradicted that the plaintiff used the stairs many times a day while she lived in this tenement; that no complaint was made by the plaintiff-or her son about the stairs during their tenancy; and that so far as outward appearance went there was nothing unsafe about the stairs, except in so far as the age of the stairs indicated such a condition.</p> <p>The judge, at the request of the defendant, ruled that, upon all the evidence, the plaintiff was not entitled to maintain the action, and directed the jury to return a verdict for the defendant.</p> <p>The plaintiff alleged exceptions.</p>

<p>Contbact, upon a covenant contained in a certificate issued by the defendant corporation to the plaintiff. At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Contract, upon a policy of insurance or certificate of membership issued by the defendant to the plaintiff on August 5, 1896, entitling him to a certain sum per week for total disability.</p> <p>At the trial in the Superior Court, before Richardson, J., without a jury, the defendant asked the judge to rule that, upon the whole case, the plaintiff could not maintain his action, and also on account of knowingly concealing a previous injury in his application for insurance; and to find for the defendant. The judge declined to rule as requested,' and found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Replevin of certain articles of personal property. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Personal Injuries — Negligence — Noise caused by Electric Car — Law and Fact.</p> <p>In an action against a street railway company for personal injuries, it appeared that the plaintiff was thrown from a wagon in consequence of the horse attached thereto being frightened by the sounding of a gong on one of the defendant’s cars, and by noise and sparks caused by the wheels of the car running over what the plaintiff believed to be pebble stones. The plaintiff testified that the horse was four or five yards from the car, and that the motorman rang the gong half a dozen or a dozen times. There was nothing to show that the noise and sparks were due _to any defect in construction or negligence in operation, and up to the moment of the accident there was nothing in the behavior of the horse which rendered it negligence on the part of the motorman to ring the gong. Held,, that the judge rightly directed a verdict for the defendant.</p>

Tort, for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. The declaration contained a count under the employers’ liability act, St. 1887, c. 270, and a count at common law. Trial in the Superior Court, before Dewey, J., who directed the jury to return a verdict for the defendant; and, at the plaintiff’s request, reported the case for the determination of this court.

<p>Tort, by the assignee in insolvency of the estate of James McKeon, to recover the value of a quantity of fur garments alleged to have been conveyed by McKeon to the defendants in fraud of the insolvency laws. At the trial in the Superior Court, before Lilley, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions, which appear in the opinion.</p>

Tort, for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. The declaration contained counts at common law and under the employers’ liability act, St. 1887, c. 270. The case was tried in the Superior Court, before Hammond, J., and, he having ceased to be a justice of that court, a bill of exceptions, at the request of the parties, was allowed by Dewey, J., in substance as follows.

<p>Petition to enforce a mechanic’s lien, under Pub. Sts. c. 191, for materials furnished in the erection of a house and barn on land of the respondent McDougall in Newton. Trial in the Superior Court, without a jury, before Richardson, J., who found for the petitioners; and the respondent mortgagees alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for personal injuries-sustained by the plaintiff through the alleged negligence of the defendant. Trial in the Superior Court, before Sherman,- J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The facts appear in the opinion.</p>

<p>Principal and Agent—Unauthorized Contract — Repudiation — Ratification — Estoppel.</p> <p>If a principal, upon learning of an unauthorized contract of his agent, repudiates it, giving an unfounded reason for so doing, such repudiation is not equivalent to a ratification of the contract, in the absence of anything beyond this to work an ‘ estoppel.</p>

<p>Contract, in nine counts, against William M. Snow and Edward A. Snow, copartners as Snow and Company. The ninth count, which is the only one material to be stated, alleged that in 1894 the defendants entered into an agreement with Robert Long, by which he was to ship oranges from Florida to them in Boston, and in consideration therefor the defendants agreed with Long in writing that as shipments of oranges were made he might draw upon the defendants for an amount equal to $1.10 for each box of oranges so shipped, and that they would accept and pay such drafts, and the defendants also promised the plaintiff that they would accept and pay such drafts; and that on December 13 and 15, 1894, Long shipped a large number of boxes of oranges to the defendants, and made seven bills of exchange upon the defendants payable to the order of Long, for a sum amounting to $1.10 for each box of oranges so shipped, and Long indorsed the drafts to the plaintiff, which discounted the same, relying upon the written and verbal promise of the defendants to accept the same, and duly presented the same to the defendants for acceptance and payment, but the defendants refused to accept or to pay them.</p> <p>Trial in the Superior Court, without a jury, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Robert Long testified that he was an orange grower, and was acquainted with the defendants; that he received a letter dated .October 8, 1894, signed “ Snow &' Co.,” and also a letter dated November 30, 1894, signed “Snow & Co.”; that his arrangements with the defendants were oral, except so far as appeared in the correspondence in evidence; that during October, November, and December, 1894, he made no drafts on the defendants ; that he showed the letter’s of October 8 and November 30 to George L. Pace, cashier of the plaintiff bank, and Parker A. Smith, its vice president, soon after receiving them; that the instructions received from the defendant E. A. Snow orally, and the letters of October 8 and November 30, he communicated to the cashier; that he drew many drafts on the defendants without bills of lading attached, which were discounted with the plaintiff bank and paid by Snow and Company during the months of October, November, and December, 1894; that he drew all the drafts in suit, and had them discounted at 'the plaintiff bank; that he made shipments of oranges to the defendants on which he drew the drafts in suit; that up to December 15 he had made various shipments, some under his personal account and some under the accounts of various nonresident growers, represented by his name and different numbers, so that the various shipments and accounts could be distinguished; and that the defendants had never revoked his authority to draw upon them or to discount drafts so drawn.</p> <p>On cross-examination, he testified that the original agreement did not impose upon him the necessity of attaching bills of lading, but that he did so in a great many cases; and that Snow and Company never said anything to him about margining up his various^ accounts.</p> <p>Parker A. Smith testified that he was the vice president of the plaintiff bank at Palatka, Florida, which position he held during October, November, and December, 1894; that he was acquainted with the defendant E. A. Snow, and met him. in November and December many times at the plaintiff bank when he called on business; that he had no conversation with him about Long’s drafts, but was present during a conversation between Pace, the cashier, and Snow, in which Snow said that Long was under contract with his house to purchase and ship the fruit from several orange groves in and around Interlachen, Florida; that Long would draw on the house of Snow and Company at Boston against such shipments, and such drafts would be honored; that it was the understanding that bills of lading should be attached to the drafts, but that any drafts that Long would draw would be all right; that this conversation was on or about November 13, 1894; that Snow said on December 28 or 29, 1894, that the drafts in suit would be paid; that he did not understand why the drafts on the house had been refused, but he would wire the house and find out; that later he told Pace that some of the fruit shipped by Long was in bad order, and that the house proposed to hold Long for a portion of the loss; and that, upon being pressed to take up the drafts, Snow said, “You need not worry. The bank shall not lose a cent. Snow & Co. are good for the drafts. They will be paid.”</p> <p>On cross-examination, he testified that he did not become acquainted with Long until the winter of 1894-95, and considered him a responsible person; that he made no representations to the defendant as to whether he was responsible or not; that Long represented himself to be under contract with Snow and Company, with authority to draw on them; that the rate of SI.10 per box was not known to the witness; that the first lot of drafts was cashed upon receiving telegrams from Snow and Company to do it; that Long did not show his authority at first; that the bank did not rely at all on Long’s statements; that the later drafts were paid by the bank after Snow had been at its office and instructed it to pay them ; and that the bank relied entirely upon Snow and Company’s telegrams, and Snow’s statements made later in person to the bank.</p> <p>The defendants offered in evidence their correspondence with Long, referred to in his testimony, and the material parts of which were as follows.</p> <p>The letter of October 8, 1894, contained the following: “ As regards your oranges, we are willing to do whatever you desire us to do, and we will accept your draft for the amount named, but we think that all this could be arranged when we get there. But, in any event, if you feel like securing this lot, we would like to have you do so.”</p> <p>The letter of November 80, 1894, contained the following: “ Tour esteemed favor of the 27th is received, . . . and notice that you will draw $1.10 per box on these as per arrangement with our Mr. E. A. Snow. ... As to B/L attached to drafts or sent direct to us, it makes no difference. The banks always like to have the B/Ls attached as a guaranty of good faith probably more than anything else; and very often B/Ls are written to the order of shipper and then attached to the draft, which holds the goods to the bank until the drafts are paid. In your case it makes no difference, however. Tou can send the B/Ls direct to us and it will be all right, and perhaps better, as we will no doubt receive a B/L direct from you earlier than it would come through the bank, and give us information that we would like.”</p> <p>E. A. Snow, one of the defendants, called as a witness, testified that he was a resident of Boston and a member of the firm of Snow and Company, which firm was in the fruit business, for the most part selling fruit at auction in large quantities; that he met Long in Florida in the winter of 1894-95 ; that he had had correspondence with him before he saw him in Florida; that he dictated the letter of October 8, 1894, before going to Florida; that one Francis had a lot of oranges to pick from a grove known as “ Hard Bargain Grove ”; that Snow and Company did not buy these oranges, but Long bought them, Snow and Company advancing $500 as a loan to Long to enable him to make the purchase ; that there was an agreement as to the oranges from this grove, that Snow and Company would advance $1.10 per box,' while Long should keep his account “ margined up”; that there was no special agreement as to any other grove; that of the drafts in suit three were on account of the “ Hard Bargain Grove,” at the rate of $1.10 per box; that he had a conversation with Pace, the cashier, at the plaintiff bank; that he thought Long was present; that he did not at the time know Parker A. Smith ; that he told Pace that Long was shipping oranges, and was drawing $1.10 per box, and that his account would be all right so long as he kept his accounts “ margined up ”; that he did not state it as appears in Smith’s testimony; that at the time these drafts came on and were refused, Long’s account was overdrawn ; that when the drafts were returned, Pace asked him why they had been refused; that he told him. there was no trouble with Snow and Company, but that he presumed Long had overdrawn his account; that Pace did not then state in any form of words that he considered Snow and Company liable; that he never said to Pace iu Smith’s presence that Snow and Company were good for the drafts, and that they would be paid; that the term “ margined up ” meant keeping the account so that a man should not draw more than was his due; that they did not credit oranges to the shipper until they are sold; and that if shipments had been made sufficient in value to meet the amount due from the shipper, then the account was “ margined up,” but if the proceeds of the sales were less than the amount drawn, the account was not “ margined up.”</p> <p>On cross-examination, he testified that there was no general arrangement except on “Hard Bargain Grove”; that the only drafts which he gave permission to draw at $1.10 were on that grove; that it made no particular difference to him whether the bills of lading were attached or not; that he never made the claim in January that the reason the drafts were not honored was because bills of lading were not attached; and that he did not remember telling the plaintiff’s attorney that he had told Pace that the drafts would be all right without bills of lading attached.</p> <p>Willis J. Freeman, called as a witness by the defendants, testified, in substance, that he remembered when the drafts in question were presented; that the shortage then on Long’s account was between $2,000 and $2,500; that later some fruit came on and the shortage was reduced to about $437 ; that Long’s account was not “ margined up ” when these drafts were presented, but it was short more than $2,200; and that all the goods had been disposed of at .that time.</p> <p>The defendants asked for the following rulings, among others:</p> <p>“ 1. An. oral promise to accept drafts not then in existence, and not exactly or substantially described or identified, is not an acceptance of drafts thereafter drawn, and gives the holder no right to recover upon drafts subsequently drawn and not accepted in the usual manner.</p> <p>“ 2. There is no sufficient evidence in the case to entitle the plaintiff to recover upon its ninth count.</p> <p>“ 8. An agreement between the defendants and Robert Long, whereby the defendants agreed with Long that Long might draw $1.10 per box, would not entitle the plaintiff to recover upon drafts drawn on the defendants by Long and not accepted by the defendants. Long is the only person, if any, who could sue for breach of such an agreement, and the evidence is that no such agreement was communicated to the plaintiff or relied upon by it.</p> <p>“ 4. The only evidence for the plain biff is that it did not rely upon Long’s statements as to any contract with Snow and Company, and did 6 rely entirely upon Snow’s statements made later in person to the bank.’ The plaintiff cannot, therefore, recover upon the allegations of its eighth or ninth counts, but must recover, if at all, upon its alleged conversation with E. A. Snow, as that conversation, in its aspect most favorable to the plaintiff, created no liability to the plaintiff upon drafts thereafter drawn by Long and discounted by the plaintiff.</p> <p>“ 5. Upon all the evidence in the case upon the pleadings, there must be judgment for the defendants upon all the counts.</p> <p>“ 6. The plaintiff makes no claim that it relied upon any contract or arrangement between the defendants and Long. It therefore cannot recover upon the eighth or ninth counts.</p> <p>“ 7. An agreement to accept bills thereafter to be drawn, to be binding, must describe the bills in specific terms so as to identify them; a general authority to draw bills will not create a liability to third persons upon particular bills afterward drawn.”</p> <p>The judge declined to give the rulings requested; and the defendants excepted. The judge found for the plaintiff on the ninth count, assessing damages at $704.92, being the' amount of the three drafts at $1.10 per box; and the defendants alleged exceptions. x</p>

<p>Contract, upon a judgment of the Circuit Court for Milwaukee County in the State of Wisconsin, recovered on July 30, 1890, by the plaintiff against the defendant in an action on a promissory note for §5,000, dated January 18, 1889, payable in that State to the plaintiff in one day from date, and signed by the defendant, who also executed at the same time an instrument, the material part of which is as follows : “ Now, therefore, in consideration of the premises, I do hereby make, constitute, and appoint E. H. Bottum, Esq., or any attorney of any court of record, to be my true and lawful attorney irrevocably, for me and in my name, place, and stead, to enter my appearance before any court of record, in term time or in vacation, in any of the States or Territories of the United States, at any time after said note becomes due, to waive the service of process, and confess a judgment in favor of the said George B. Van Norman, or his assigns, upon the said note, for the above sum, or for as much as shall appear to be due, according to the tenor and effect of said note, and interest thereon at the rate of seven per cent per annum, to the day of the entry of said judgment, together with costs, and also to file a cognovit for the amount that may be so due, and to release all errors that may intervene in entering up said judgment, or in issuing the execution thereon, hereby ratifying and confirming all which my said attorney may do by virtue hereof.” Annexed to the declaration was a copy of the record of the court in which the judgment was entered, which set out the “ complaint,” reciting the making and delivery of the note, and demanding judgment for the amount due, by “ Winkler, Flanders, Smith, Bottum & Vilas, Plaintiff’s Attorneys ”; an answer as follows: “ And now comes the above named defendant, by Ogden & Hunter, his attorneys, and by virtue of the power of attorney hereto annexed waives the service of process upon the said defendant, and enters his appearance herein, and confesses all the allegations in the plaintiff’s complaint, and that there is due from the defendant to the plaintiff on the note described therein the sum of . . . and hereby confesses and authorizes judgment for that amount, together with costs; and now here releases all errors which may intervene in entering up judgment hereon, and in issuing execution on such judgment,” signed by “ Ogden & Hunter, Defendant’s Attorneys ”; the note and warrant of attorney to confess judgment; the judgment declared on amounting to $5,563.99; and an execution returned unsatisfied; and was authenticated by the clerk of the court, with the seal affixed.</p> <p>The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows.</p> <p>The defendant signed the note on which suit was brought in Wisconsin. He also signed the warrant of attorney to confess judgment, on which judgment was confessed in Wisconsin. At the time he signed the note and warrant of attorney he was in and was a resident of that State. No personal service was made on the defendant in that suit. The defendant never authorized Ogden and Hunter, attorneys at law, to appear or act for him in the suit except as they may have been authorized so to do by the warrant of attorney to confess judgment. The judgment was entered as set forth in the declaration and the record thereto annexed, and has never been vacated or satisfied in any part. Ogden and Hunter, the attorneys who appeared and confessed judgment for the defendant, were attorneys of a court of record.</p>

<p>Contract, for breach of an alleged warranty in the sale of longiflorum lily bulbs. 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, against Edward Russell, Edward B. Russell, and William L. Gage, formerly copartners as Edward Russell and Company, for an alleged breach of an agreement to employ the plaintiff. Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptions, in substance as follows.

<p>Eminent Bomain — Location of Railroad — Trespass.</p> <p>The D, & M. Railroad Company was chartered by St. 1846, c. 228, to construct a railroad, beginning at or near the depot of the O. C. Railroad at N. Village in D., and thence to some convenient point in D. or M. at or near the Upper Milla. On April 15, 1847, the company filed a written instrument and a plan purporting to be a location conformably to the statute. The written location described a line which it declared was the centre line for a single track, and which “ commences at the centre between the track of the O. C. Railroad opposite the southerly corner of N. Depot in D.” From this terminus the line was exactly described by definite courses and distances for a length of some 16,085 feet. The other terminus was not fixed otherwise than by the given courses and distances from the place of beginning; but the instrument stated that the described line conformed to the line described in tile charter, which required that end of the railroad to be at some convenient point at or near the Upper Mills. The written location, after stating that the line described “ is the centre line for a single track,” stated further that “ the width of line taken varies from two to five rods, according as tlie embankments or excavations require.” A., who owned a tract of land through which the railroad was built, brought an action of trespass against B. for removing in 1894 from land by the side of the railroad track a train load of gravel there delivered to him at a place where the railroad bordered on A.’s land. The court ruled that the location constituted a valid location two rods in width and no more, of which the centre line was defined, and found that no act was done by the defendant outside of the railroad location. Held, that there was a valid location two rods in width.</p>

Contract, for breach of the following written agreement: 16Boston, June. Mr. Wal’t Goddard: Dear Sir, — You are booked at Lakeview Park, Lowell, week of June 28, as California Trio, yourself and two people, tenor and bass. Every one works in the afterpiece if required. Salary sixty dollars. Yours, D. H. Morrissey. P. S. Train leaves at 1 p. M. Sunday.” Trial in the Superior Court, without a jury, before Hammond, J., who allowed a bill of exceptions in substance as follows.

<p>Petition, against Herbert A. Fuller, Will S. Fuller, and Granville A. Fuller, to enforce a mechanic’s lien under Pub. Sts. c. 191, for labor performed and materials furnished in the erection of nine dwelling-houses upon land in that part of Boston called Allston, by virtue of an oral contract with the respondent Herbert A. Fuller, on November 18 or 19, 1895. Annexed to the petition was an account upon a quantum meruit. Trial in the Superior Court, before' Braley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The contract under which the lien was sought to be enforced was as follows. The petitioner agreed to do the plumbing for eight houses, according to plans and specifications, for $2,750, and further agreed, as a part of the same contract, to do the plumbing at the same pro rata price on a ninth house which the respondent Herbert A. Fuller expected to build on another lot of land, which he purchased subsequently, the whole contract price amounting to $3,097.50.</p> <p>The nine houses were built respectively upon the nine lots shown on a plan hereinafter mentioned.</p> <p>At the time the contract was made, the legal and record title to a part of the land was in the respondent Will S. Fuller, but the ownership and equitable title of all the land in his name was in the respondent Herbert A. Fuller, who made the contract with the petitioner, and it was admitted that, for the purposes of the ease, Herbert A. Fuller was the real owner of all the land.</p> <p>The petitioner began to furnish labor and materials for plumbing the houses on or about November 25,1895, and ceased to furnish labor and materials for the same on March 12, 1896.</p> <p>The petitioner fully performed all the stipulations of her contract until the same was broken and annulled by Herbert A. Fuller early in March, 1896, and also furnished labor and materials on the houses of the value of $199.97, which were extras not called for by the contract, and in addition thereto. The petitioner contended that she was entitled to maintain a lien for the amount of the quantum meruit account annexed to her petition.</p> <p>The tract of land upon which the lien was sought to be enforced was situated at the corner of Aldie and Everett Streets. At the time of the making of the contract, the land was not enclosed, with the exception of a fence ón the rear of the same parallel to Aldie Street, and several houses were in process of construction upon the different lots shown on two plans recorded on July 22 and November 4,1895, respectively, and there was nothing else on the land to show the division into lots. The petitioner never saw the land until after the contract was made.</p> <p>At the time of the making of the contract, several deeds and mortgages of the whole tract of land, and of several of the individual lots, as shown upon and according to the plans, had been made and duly recorded ; and other conveyances and mortgages of all the different lots of land, as shown on the second plan, were made to different persons at different times between November 20, 1895, and March 12, 1896.</p> <p>All of the premises described in the petition and shown on the second plan, except one lot for a valuable consideration, were conveyed to the respondent Granville A. Fuller, the father of the other respondents, by deed dated May 22, 1896, and duly recorded on June 1, 1896.</p> <p>No separate account was kept by the petitioner of the labor performed on or the material furnished for each of the houses as distinct from the others, and the petitioner was unable to state what labor was performed or material furnished on any particular house.</p> <p>At the time the petitioner ceased working under her contract, four only of the houses were completed, and the other five were in different stages of partial completion. The evidence showed that the cost of doing the work left unfinished by the petitioner, but called for by the contract, would be $400. The respondent paid the petitioner $1,300 on account.</p> <p>During the progress of the work, on or about January 15,1896, the petitioner’s husband, who had charge of her affairs, went to the registry of deeds and personally examined certain mortgages that Herbert A. Fuller had given on several of the lots.</p> <p>Against the objection of the respondents, the judge permitted the petitioner, in support of her quantum meruit account, to show the fair value of the work and materials that she had performed and furnished on all of the houses taken together at the time she ceased work thereon, namely, in March, 1896, ruling that she was not bound or limited by the contract price.</p> <p>The respondents requested the judge to rule as follows :</p> <p>“ 1. The petitioner, on all the evidence in the case, is not entitled to maintain a lien against the whole or any part of the property described in her statement or petition.</p> <p>“ 2. If the jury find that Herbert A. Fuller made a contract with the petitioner, then the petitioner is limited by the contract price, and in no aspect of the case can she have a lien upon the property for more than the difference between said contract price and the amount of credits that should be applied to said contract, adding to said credits the fair market value of finishing the work according to the contract.</p> <p>66 3. In a mechanic’s lien case, the petitioner can in no event recover more than the contract price.</p> <p>“ 4. If the jury find that these houses were built on separate lots of land, a plan of which had been recorded in the registry of deeds and on some of which mortgages had been made before the date of the contract in this case, and if the petitioner is also unable to tell just how much labor and material were furnished on each of these distinct houses, she cannot maintain a lien upon any of the houses for any amount.”</p> <p>The judge declined to rule as requested, and, among other things, instructed the jury as -follows :</p> <p>“ If Herbert A. Fuller broke and annulled this contract, then he cannot rely upon it as against the petitioner’s claim, when the petitioner’s claim for work and materials amounts to more than the sum for the entire contract, that is, amounts to more than $3,097.50. ...</p> <p>“And I further instruct you that in this case, by reason of the annulling and breaking of the contract by Herbert A. Fuller, the petitioner, if entitled to recover at all, is entitled to recover the fair value of the work and materials, even though that sum exceeded $3,097.50, from which fair value of labor and materials is to be deducted all just credits which ought to be given.”</p> <p>The jury answered issues submitted to them as follows:</p> <p>“ 1. Q. What is the amount of the debt due the petitioner with all just credits given ? A. $2,017.30. •— 2. Q. Are the premises described in the petition subject to a lien for the debt due the petitioner ? A. Yes.”</p> <p>The jury stated, in response to a question from the judge, that the above sum of $2,017.30 was composed of $1,831.42 principal, and $185.88 interest.</p> <p>The respondents alleged exceptions.</p>