Volume 174 — Massachusetts Reports

<p>Betterment — Evidence—-Matter within Discretion of Judge — Instructions— Trial.</p> <p>At the trial of a petition for the revision of an assessment levied under statutory authority upon land for benefits arising from improvements in the channel of a brook, for which purpose a part of the land was taken, in the first part of the trial the judge refused to let the petitioner put in a certified copy of the taking, but at the close of the evidence, the respondent consenting, the judge said to the petitioner that he might read to the jury all of the taking except the part relating to the award of damages, but that such award could not be put before the jury. The petitioner declined to avail himself of this permission, and excepted to the exclusion of the record. Held, that the petitioner had no ground of exception.</p> <p>At the trial of a petition by B. for the revision of an assessment levied upon his land for benefits arising from improvements in the channel of a brook, a civil engineer, called as a witness by the petitioner, was asked the following question: “ Are you prepared to tell the jury what the cost of constructing a channel following the original line of this watercourse across B.’s land would be ?</p> <p>State the different kinds of channels which could reasonably carry off the water of the brook, and describe each, and state what it would cost.” Another witness, who had had practical experience in draining lands, was asked, “ Won't you state what, in your judgment, would be a proper size for a drain to drain B.’s property % ” Held,^ that the questions were properly excluded.</p> <p>At the trial of a petition for the revision of a betterment assessment under St. 1887, e. 99, upon land, some of which was taken for the improvement assessed for, the petitioner contended that, after tbe taking, he was obliged to lay out his lots in certain sizes, and offered to show that such lots would not sell so well and were not so valuable as lots oí different dimensions. Held, that the evidence was rightly excluded.</p> <p>It is within the discretion of the judge, at the trial of a petition for the revision of a betterment assessment on land, to admit in evidence photographs of the land taken before any of the work for which the assessment was made had been done.</p> <p>At the trial of a petition for the revision of a betterment assessment on land, no exception lies to the admission in evidence of the record of the assessment including the amount, and to the instruction to the jury that the adjudication as to the amount was to stand unless the petitioner proved by a fair preponderance of the evidence that it was not right.</p> <p>The fact that land is rendered more healthy for occupation by an improvement made by the town may be considered in assessing a betterment upon the land under St. 1887, c. 99, although there is a similar benefit to other real estate in the neighborhood.</p> <p>Where, on a petition for the revision of a betterment assessment on land, the jury have been instructed that the benefit must result solely from the work done under the statute, the petitioner is not entitled to rulings embracing a particular enumeration of possible future contingencies, the respondent making no contention that any of these could properly be considered by the jury as an item of benefit.</p> <p>Where much of the land upon which a betterment assessment has been levied was low and swampy, and by reason of the work done under the statute the surface water, from whatever source it comes, is more speedily or more effectually taken from the land, and that is a benefit, the jury may consider it upon a petition to revise the assessment.</p> <p>It is within the discretion of the judge presiding at a trial to single out any individual fact and rule upon the effect of it alone.</p> <p>It cannot be ruled, as matter of law, that the removal of a pool of water by an improvement made by a town would not of itself be a benefit to land near the water, hut not abutting on it.</p> <p>Upon a petition for the revision of a betterment assessment under St. 1887, c. 99, on land, some of which was taken, the petitioner is not entitled to have the jury instructed that “ if, as claimed by the petitioner, the land as taken by the town leaves the remainder of the petitioner’s estate in such situation that, according to a reasonable and proper plan of development, certain lands would be too deep arid certain lands too shallow to sell to advantage, the jury should consider these circumstances in determining whether the petitioner’s estate has received a benefit as claimed by the town.”</p> <p>Upon a petition for the revision of a betterment assessment on land, the jury are rightly instructed that they cannot reduce the assessment unless satisfied by a fair preponderance of the evidence that it is not right, and that on this question the assessment is “not evidence either prima facie or in any other way.”</p> <p>The fact that a new channel of a brook laid out by a town is covered will not prevent the use of it by a landowner for the purpose of carrying off the surface water by entering a private drain connected with the main channel, and it is to be assumed that such connection will be allowed under proper restrictions and regulations, and at the trial of a petition for the revision of a betterment assessment on land for such laying out of the channel, there being evidence that the estate was benefited by the improvements, the petitioner is not entitled to a ruling that “ upon the evidence no betterment' can be properly assessed under the ” statute authorizing the work.</p> <p>Upon a petition for the revision of a betterment assessment on land by the selectmen of a town under St. 1887, c. 99, the whole proceeding being upon the assumption that the acts of the selectmen were within the statute and valid, the petitioner is not entitled to a ruling that “the statute only authorizes the change of the channel of a watercourse, therefore, if the town has constructed an independent drain, not intended as a channel for the watercourse and not adapted for that purpose, but designed merely to serve as a drain for the adjoining land, sucli drain is not within the authority conferred by the statute.”</p> <p>Under all the circumstances of this case, which was a petition for the revision of a betterment assessment on land, levied under St. 1887, c. 99, the petitioner is’ not entitled to a new trial because of the failure of the judge to give the twelfth ruling requested, relating to catch basins.</p>

Petition, for a writ of certiorari to the selectmen of Brook-line.

<p>Complaint to the justices of the Second District Court of Essex, alleging that the defendant, on November 21, 1898, at Salisbury, “ did take from their beds a certain quantity of shell fish, to wit, five bushels of clams, he, the said Albion P. Hilton, did not then and there take said shell fish for his own family use, and he, the said Albion P. Hilton, did not then and there have permit from the selectmen of said Salisbury to take said shell fish, said selectmen being then and there duly instructed to control and regulate or prohibit the taking of said shell fish in said Salisbury, by a vote of said Salisbury passed at a legal meeting of said Salisbury duly called for that purpose, and held on November 2, 1898, and said selectmen of said Salisbury having thereafter, to wit, on the third day of said November, made regulations prohibiting all persons from taking clams from the flats of said Salisbury without a permit from the selectmen of said Salisbury, against the peace of said Commonwealth and the form of the statute in such case made and provided.”</p> <p>In the Superior Court, upon appeal, the case was submitted to the jury on agreed facts. Hardy, J., refused to give certain rulings requested and ruled that the agreed facts would warrant a verdict of guilty.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Tort, under Pub. Sts. c. 120, § 25, to recover for the alleged refusal and neglect of the defendant to give the plaintiff, who was the owner of the equity in certain real estate in Bridge-water, a discharge of a mortgage to which the real estate was subject. Trial in the Superior Court before Hardy, J., who found for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p> Contract for Services performed for Trustees under Will. </p> <p>In this case, which was an action of contract against A., the surviving trustee, for services performed, it was held that the evidence would warrant a finding that the plaintiff was hired by B., the deceased trustee, in behalf of both trustees, with the knowledge and approval of A., that the services were reasonably necessary for the care and repair of the trust property, and that they were not regarded by either party as gratuitous, and that therefore it was error to direct a verdict for the defendant.</p>

<p>Declaration — Facts not alleged with Substantial Certainty — Demurrer.</p> <p>Where the two contracts described in a declaration are entirely inconsistent with each other in their leading features, the latter entirely superseding the former and being in no sense merely an alteration of or an addition to it, the facts are not alleged with substantial certainty; it is impossible to tell upon which contract the plaintiff relies, and a demurrer to the declaration must be sustained.</p>

<p>Contract, on a written instrument signed by the defendant. Trial in the Superior Court, without a jury, before Bond, J., who refused to rule that the instrument was not a continuing guaranty, a,nd was exhausted and satisfied when goods had been furnished to Coffin, the person named therein, by the plaintiffs, to the amount of two hundred dollars, and they had received their pay therefor, and found for the plaintiffs in the sum of two hundred dollars. The defendant alleged exceptions, which appear in the opinion.</p>

<p>Tort, for the conversion of two buggies and a harness. At the trial in the Superior Court before Sheldon, J., there was evidence tending to show that the defendant, who was an express-man, received the buggies and the harness at his office in Boston, to be delivered to the plaintiff in Stoughton, with no instructions whether they should be taken over the public road or railroad; that the defendant took them over the public road behind his express wagon, first bringing in a load of goods from Stoughton, then getting a return load and putting buggies on behind; that tender of five dollars from the plaintiff to the defendant, at the plaintiff’s place of business, was admitted; that the defendant refused to accept it, and wanted eight dollars, and kept the buggies for his charges; and that two dollars per buggy was a reasonable and fair charge, with the harness, when taking-in a load, and returning with a load and buggies.</p> <p>The defendant and another expressman testified that the railroad charge for taking out a single buggy over the railroad was some four dollars and odd cents, to which evidence the plaintiff excepted. The plaintiff asked the judge to rule that as the defendant never tendered the buggies and harness at the plaintiff’s residence, where he was ordered to deliver them, two miles from the defendant’s place of business, any lien which the defendant might have was dissolved, and this of itself was conversion. The judge refused so to rule; and the plaintiff alleged exceptions.</p>

<p>Lien against a Railroad for Labor performed — Statute—'Amendment of Writ and Declaration.</p> <p>The writ, in an action against a railroad to enforce a lien under Pub. Sts. c. 112, §§ 143-147, for labor performed, bore date August 17, 1895, and was returnable on the first Monday of the following September. On July 7,1896, the plaintiff, by leave of court, amended his writ and declaration by substituting D. as the defendant for the N. C. Railroad Company. D. was the owner of the railroad when the labor was performed, when the statement required by the statute was filed, when the action was brought, and when the amendment was made and allowed. A new summons was issued to him and he accepted service. Held, that the amendment was rightly allowed under Pub. Sts. c. 167, § 42.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries sustained by the plaintiff through the alleged negligence of the defendant’s superintendent. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows :</p> <p>The plaintiff was injured by having his hand crushed in a pile-driver on which he was employed in Northampton by the defendant.</p> <p>The only negligence complained of was that while the plaintiff was in a crib in the ground under the pile-driver on a plank, and while he had his right hand on the end of a pile that had been driven into the ground until it stood in the crib about even with his shoulder, one Bouleau, the superintendent, gave the engineer word to start the hammer, which had been stopped, without waiting for the plaintiff to say “ all right.” The plaintiff contended that he of his own motion put his right hand on top of the pile to move it away from the runs of the driver so that he could get in a cant-hook, which he had in his left hand, so that he could move the pile; and that it was his duty to guide the pile all the way down.</p> <p>The plaintiff testified, among other things, as follows :</p> <p>“ The date of my injury was April 28, 1897; I had been at work thirteen days, I think, on the pile-driver. At the time I was hurt Bouleau gave me my orders; Bouleau told the men what to do, where to go, and we would go by his orders. The day I was hurt nobody else was there giving orders except Bouleau. I was hurt between eight and nine o’clock in the forenoon. I was underneath the spile. Above me was a platform where the engine was standing, and then there were two rolls, one in the front and one in the back, and it was standing on those two rolls. These rolls backed it up, backwards and forwards and sideways, and this was sticking out and he wanted to back it up. This platform was five or six feet above me, on which were all the other men except myself, and on it the engine. The iron thing that drives the pile I call the hammer; and the engine was standing from the uprights that held the hammer, that it fell through, I guess, about four or five feet. The hammer is raised by a rope running from this small upright engine. Bouleau told the engineer when to work his machinery to raise the hammer and let it fall. They had to keep a man down in where I was working right along; that morning it was Bouleau who set me to work under the platform; he set me to keeping that pile straight; at the time the accident occurred, it was kicking one side a little, and I put my hand on so I could get my cant-dog between; you have it in order to cant it up ; there is a piece of iron ; it grabs right in, and one side gets hold under side, and the other gets hold of the other side. I had one of these trying to force that over, and I could not get it between, and I put my hand on top-of the pile. The pile was about six or seven feet out of the ground ; it had been driven into the ground before I was injured; I took hold of the top of the pile; I tried to get my canter between, and just as I put it there, the hammer came down and smashed my fingers; I had been at work there with my canter on this pile trying to straighten it before the hammer came down about a minute or so. It was for me to say all right, then Bouleau would give the signal for the hammer to come down. That had been the customary way of doing the business. During the minute and a half or so that I had been trying to straighten that, Bouleau was standing in front in sight of me, where he could see me.”</p> <p>On cross-examination, the plaintiff testified, among other things, as follows:</p> <p>“ I was alone underneath, and there was one plank; I did not put the planks in position; I don’t know who did; I was sent there; I stood there (showing) and the pile came down in parts, and the hammer came down on to it and drove it down ; my work was to keep it straight. After it got down a long ways, it did n’t keep itself straight; if it would n’t go straight, we had to do some way to make it straight. When it first went down, I guided it. There is sometimes a kick; that is the way it happened; it had gone into the earth about ten feet, I should say, when my fingers were hurt; I couldn’t say exactly how deep the crib was from top to bottom ; I could n’t tell how long it was, nor how wide; the end of this pile above the planks I stood on at the time I was injured was, perhaps, a little higher than my shoulder.”</p> <p>The cross-examination was further continued as follows: “ Q. What occasion was there for you to put your hand on top of this pile ? A. To keep it straight. — Q. Could you keep the pile straight by putting your hand on top ? A. I could shove it. — Q. You could shove that pile that had gone down so many feet that it stood to your shpulders by putting your hand on top of it ? A. Yes, it was like a mud hole there, it was soft. — Q. There had n’t any one told you to move it, it was a part of your duty, and you did it of your own motion ? A. It was my work. — Q. No one told you to at that particular time, it was part of your work, you say ? A. Why, certainly, it was my work. — Q. Nobody told you then to move it? A. I wasn’t going to have him tell me every little while. I was sent there to do it, so I thought I would do it straight.” He also testified as follows: “ I knew if I got my hand under this hammer that came down on it, that it would injure me; Mr. Rivers and the foreman never told me to keep my hands off the top of the pile, and out from under the hammer; I mean to testify that in order to move this pile to get my canter in, I could do it better by putting my hand on top when it was even with my shoulder than by pushing it.” v</p> <p>Arthur St. John, called as a witness' by the plaintiff, testified that, at the time of the accident, he was working for the defendant; and further testified as follows:</p> <p>“ Preceding the time the plaintiff got hurt, and up to the day he got hurt, I saw Bouleau running the gang, telling them what to do, find showing them what to do, and everything, like a foreman, as I call it. The sides of the pile-driver, the uprights in which the hammer ran, went down below the top of the crib two or three feet.”</p> <p>Frank A. Rivers, who was the husband of the defendant, testified, among other things, as follows:</p> <p>“ I was managing this business for Mrs. Rivers at the time, pile-driving and all kinds of heavy work ; I was at Northampton in charge of this work that was in progress there pile-driving for heavy masonry, incident to the change of grades of the railroad. I had been to this place that morning before the plaintiff was hurt. They were driving piles ; I don’t know whether this particular pile. He was down in the crib ; he was right on that platform (showing) ; that was his place where he was supposed to stand, that was his work; his duty was, when they lowered down the piles, to sway them in position ; the piles put in there were forty-five to forty-eight feet long. There is a pulley-block, and the engine sits in this position (showing), and there is a rope goes right on to the pile, and there is what we call the nigger-head, that is a spool, and there is a man whose duty it is to hitch that pile on that rope, and then to hallo to the engineer, or make some motion to him, and he pulls it with this spool on the drum of the engine, and when it is pulled down they lower it down, and this man down in the crib sways it into position, that is, as near as he can, into the centre of the leaders. That was the plaintiff; that was all he had to do about it; he has nothing else to do during the driving of the pile but make his own platform, and there were 4000 feet of plank on the side of the platform ; when they shifted the driver he had to move this plank ; he had a cant-hoolc in there; the use of it is, when they lower down the pile, if the pile happens to be a little crooked, he puts it between the leaders so as to turn it round and get it in position ; when he gets it in position, there is no more use for a cant-hook ; I did not see this particular pile; there was not any pile there so loose that it could be moved with the hand after it got down, so the top of it would be even with a man’s shoulder standing on that platform, five hundred men could not do it. His work there did not call for his putting his hand on top of the pile that was down, so the top was about the top of his shoulder. I am my own superintendent.”</p> <p>On cross-examination, the witness testified: “ It was part of Bouleau’s duty to give the signal to the engineer when to let the hammer drop; he stood ordinarily right in front of the pile; there was nothing across here to obstruct his view.”</p> <p>Peter Bouleau testified for the defendant as follows: “ I was working for the defendant in Northampton when the plaintiff was hurt; I was standing in front there, looking down to the bottom; he was down here back o£ the pile ; I signalled to have the hammer go ; I told him, 1 Go ahead.’ If the engineer could hear, the plaintiff could hear. When I said that, the plaintiff was doing nothing; I can’t tell where he stood, don’t know whether he was standing or sitting; I saw him back in there, I don’t know if he had a cant-hook; I did n’t see it; he had nothing to do with the pile then. His duty was, he started the pile a!t the bottom, standing in back of the pile; when the leader was put on, he had no work; all he had to do was to - sway it in first, then step back, and had no more to do about the pile, he shifted his own floor himself, the planking; when I told the engineer, ‘ All right,’ I did n’t see him ; I stood facing, he says, 6 All right,’ and I told the engineer to go ahead; the engineer did not lift up the hammer to let it go down; it simply dropped from there ; I do not know how he got his hand on top; I told him, every man, not to put their hand on top of the pile ; it was no good to put his hand on.”</p> <p>At the close of the evidence, the defendant requested the judge to rule that, upon all the evidence, the plaintiff could not maintain his action. The judge declined so to rule; and the defendant excepted.</p> <p>The defendant also requested the judge to rule that, if Bouleau did not know, and by the exercise of reasonable care would not have known, that the plaintiff’s fingers were, ór would be, on the top of the pile, it was not negligence on his part to give the signal to the engineer to start the hammer and to take the shelf out from under it to let it descend. But the judge declined so to rule, and, subject to the defendant’s exception,- instructed the jury, in substance, as follows:</p> <p>“ The law is perfectly well settled in this Commonwealth, that in every case of this kind the plaintiff must come into court and show, the burden being upon him and not upon the defendant, that the plaintiff, at the time when he was injured, was careful, and that no carelessness, no negligence on his part, either caused or contributed to cause the injury. He must go further, and not only show that he was not himself careless, but he must show that the superintendent was careless. In other words, he must show that the sole cause of his injury was the carelessness of Bouleau, you having first found that, within the meaning of the statute, Bouleau was exercising superintendence and was the defendant’s superintendent at this time and in this place. And the question whether the plaintiff was himself careful and Bouleau was careless, is of such a kind that I think it may be said to be a narrow and simple one. Up to a certain point all parties agree. It is agreed that the place of the accident was at the bottom of a crib which has been described to you, and that one of the duties of the plaintiff was, when a new pile was to be driven, to stand there in this crib and see that the pile entered the ground at the proper place and where it was intended to be driven, and when the pile was hoisted, to guide it so that it should be at the place where it was the intention that the pile should be driven. That it was his duty to do this is undisputed, and there is no dispute that while this was being done, the machine was not to be set in motion and the hammer was not to fall until the plaintiff gave notice that everything was in readiness by calling out in some way, ‘ All right.’ Now it is not in dispute that the pile had been driven into the earth for a considerable distance. The plaintiff tells you about how high the top of the pile was from the ground. The work was suspended for some reason. You may have no doubt that it was suspended because the pile was not going down exactly in the way it was intended that it should go, that it was inclined a little one way or the other out of the perpendicular. The plaintiff says that he had a duty to perform at that time, and that in the performance of that duty it was proper for him to put his hand upon the top of the pile, and he tells you what he did it for, what he purposed to do after that, and he says that in accordance with the course of the business of driving piles there, the machine was not to be started, the hammer was not to be allowed to fall, until he gave notice. Now, here the parties wholly differ. The defendant says that after the. driving began, after the plaintiff had seen that the pile entered the ground at the place where it should enter, the plaintiff had nothing more to do with the driving of that pile; that his duty after that was to move the planks at the bottom of the crib so as to be in readiness for driving the next pile: and that when the pile did not go down as it was intended that it should, that was regulated by moving the machine upon the top of the crib in the way described, and the plaintiff had nothing to do with that change, and that the plaintiff was not to give notice then when the work should be resumed. This question is a vital question in the case. The plaintiff says that the negligence of the defendant was that the defendant’s superintendent gave notice to start the engine and caused the hammer to be raised and to fall without the signal, without the notice which the superintendent should have waited to receive from the plaintiff, and that is all he specifies as negligence in the case. He does not contend that the superintendent was looking down into the crib or ought to have looked down into the crib to see the position of the plaintiff’s hand. He told you upon the stand, in substance, that he had no reason to suppose that the superintendent knew where his hand was at the time, but he says it was the invariable practice in doing that work, when the work of driving the pile was suspended, and he had something to do in connection with the pile, loosening it or moving it, that the machine should not be started until he gave notice to the superintendent that it might be started, and he says the failure of the superintendent to wait for such notice, and the act of the superintendent in starting it without notice given by him, caused this injury, and there is nothing else which he specifies as having caused the injury. How, that is a very narrow question. It is an important question. You must determine it upon the direct evidence in the case, taking into connection everything else which tends to throw light upon that matter. The burden is upon the plaintiff with respect to this matter to show that the superintendent was in fault in this particular, and unless you are satisfied of that there is no case.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by falling over a pile of iron rails alleged to have been placed negligently in a public street by the defendant. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>On May 28, 1897, about nine o’clock in the evening, the plaintiff, with her daughter, left a drug store, which is situated on the easterly side of Massachusetts Avenue in Cambridge near the grade crossing of the Boston and Maine Railroad, and walked southerly on the easterly sidewalk of Massachusetts Avenue for the purpose of enabling the daughter to take an outward bound electric car at a point near Cameron Street which intersects Massachusetts Avenue a short distance south of the railroad crossing.</p> <p>There lay near the sidewalk, on the easterly side of the street, four iron rails each about sixty feet long, four inches wide, and nine inches deep. Two of these rails lay side by side upon the ground, the other two lay directly on top of them, and all were closely piled together, were parallel to one another, and none projected at the ends further than any other. The southerly end of the pile came within about six feet of the flagging leading across Massachusetts Avenue on the northerly side of . Cameron Street. A white post of the street railway company, indicating that there was a stopping place for outward bound cars in the vicinity, was located on the sid'ewalk opposite the pile of rails, which lay in the gutter about a foot outside of the white post; and the plaintiff’s daughter testified that she had been accustomed to take a car for Arlington at this stopping place, two or three times a week.</p> <p>Northerly from the white pole and on the opposite side of Massachusetts Avenue, at a point about 220 feet distant, was an arc electric light, and in the other direction, at a point opposite the car stable of the defendant company, on the westerly side of the avenue, was another arc electric light distant about 400 feet. Upon the gates at the steam railroad crossing were four or five lighted lanterns which, when the gates were lifted, were some twenty-seven feet from the ground. __ The plaintiff and her daughter and two other witnesses testified that at the time she fell a lighted lantern was standing upon the southerly end of the pile of rails, but that there was no light upon the northerly end; and this evidence was not contradicted. One Clark, who was employed by H. Gore and Company, contractors for street railway work, as “ a lamp and tool man,” testified that he put a lighted lantern upon each end of the pile of rails about dark, and after lighting all his other lanterns, of which there were over two hundred, he went to his supper, and was at his boarding house at the time of the accident; that when he went away, which was about an hour before the accident, he left both the lanterns burning and in their proper places; that when he returned, shortly after the accident, the lantern at the northerly end was lying on the ground with its glass broken and the light extinguished, and that the other lantern on the southerly end of the pile was still burning and in its place. There was no other evidence that there was a light at the northerly end of the rails, lío evidence was offered of any contract between the defendant and H. Gore and Company. Clark testified further that the rails were brought there on May 27 about nine o’clock in the morning, by a firm of teamsters; that these rails were laid in that place by direction of the witness, and that they lay in the gutter close to the white pole ; but the plaintiff’s daughter testified that these rails were there two or three days before May 28, and a police officer, one of the defendant’s witnesses, testified that he thought they were there a day or two before May 28. The evidence was conflicting as to what the conditions as to light and darkness were at the point where the rails were piled. The plaintiff’s witnesses and one of the witnesses for the defendant testified that it was dark; and other witnesses for the defendant testified that it was light enough to observe anything lying in the street if one looked. It was in evidence that there were no trees or intervening objects to obstruct the rays of light from the two arc lights before mentioned, but a witness for the plaintiff testified that the railroad gates when lifted were in direct line between the nearest arc light and the white post.</p> <p>It was in evidence and uncontradicted that work was being done upon the street railway, digging out old rails and putting in new ones, by H. Gore and Company.</p> <p>The defendant admitted that the four rails thus piled, at a time subsequent to the accident, took the place in the track of the defendant corporation on Massachusetts Avenue of certain old rails which at the time of the accident formed a part of its track in that street and which were removed. It also appeared from the evidence that this putting in of new rails instead of old ones had been going on upon Massachusetts Avenue between the Arlington line and the drug store for a considerable time prior to the accident, and was afterwards continued in the direction of Boston.</p> <p>As to the manner in which the accident happened the plaintiff and her daughter testified that the daughter was intending to go to Arlington upon an outward bound car ; that on coming out of the drug store they saw,the car approaching from Boston, and walked toward Cameron Street; that the daughter, who was somewhat in advance of her mother, passed straight over the pile of rails from the white post and approached the car which stood with its rear platform just past Cameron Street; that the body of the car was opposite the white post; that the plaintiff left the sidewalk at the white post, intending to go to the car to see her daughter aboard; and that she did not notice the pile of rails and fell over it, receiving the injuries complained of. There was evidence from the defendant’s witnesses that there was a stopping place on Massachusetts Avenue for outward bound cars northérly of the drug store, at a point nearer to it than the point of the accident; but this fact was denied by the plaintiff, some of whose witnesses testified that this more northerly stopping place was established after the accident.</p> <p>At the conclusion of the evidence, the defendant requested the judge to instruct the jury as follows :</p> <p>“ 1. Upon all the evidence in the case the plaintiff cannot recover. 2. There is no sufficient evidence to warrant a verdict that the plaintiff herself was in the exercise of due care.</p> <p>3. There is no sufficient evidence in the case to warrant the jury in finding that the defendant was guilty of any negligence.</p> <p>4. There is no evidence in the case that the rails belonged to the defendant, or that it left them or suffered them to remain where they were lying when the plaintiff fell. 5. There is no evidence in the case that the defendant placed the rails, or caused them to be placed, in the position where the case shows they were.</p> <p>6. There is no evidence that there was negligence on the part of anybody in placing the rails where they were, or in regard to the manner in which they were laid, or in regard to the means that were taken to warn persons in the street of their being laid there.</p> <p>7. Upon the evidence in the case it does not appear that the defendant owed any duty to the plaintiff so far as regards the rails in question, or violated any duty it owed her. 8. Unless the jury find that the rails in question belonged to the defendant, the plaintiff cannot recover.”</p> <p>But the judge refused to give the instructions asked for, and instructed the jury as follows :</p> <p>“It is conceded that at the time in question the rails— and it is admitted that there were four, which were near the post — were rails which were subsequently used by the defendant corporation, and that these particular rails took the place in the track of the defendant corporation over this highway of certain old rails which had formed part of- the track and which were removed; and there is evidence tending to show that this change, putting in the new rails instead of old rails, had been going on in the immediate neighborhood for a considerable time, and was continued thereafter. ...</p> <p>“ The defendant is a corporation and must act, of course, by servants and agents, and the defendant is responsible for the acts of its servants and agents ; and if there was carelessness on the part of such agents in the performance of the duty intrusted to them, the defendant must respond in damages, if anybody is damaged by reason of the carelessness. So that you have this question to consider: whether this corporation had anything to do respecting these rails, or any responsibility. The burden is upon the plaintiff, upon all the evidence in the case, to satisfy you that these rails were there in that position because the persons who left them there were at the time under the control of the defendant corporation, doing the work of the defendant corporation, and for whose acts the corporation was responsible.</p> <p>“ Were they the property of the defendant corporation? That is a question of fact for you; and it is to be determined in view of some of the matters to which I have called your attention, mainly this: that these identical rails, it is agreed, were put into the track over which the cars of the defendant corporation ran, and took the place of old rails which were removed therefrom. It will be competent for you to find, but-it is still a question of fact for you, that these rails, at the time when they were left upon the highway near the sidewalk, belonged to the defendant corporation. And in view of what was done, the use made of these rails, taken in connection with what you may find upon the evidence was being done in the immediate neighborhood in the way of putting in new rails, it will be competent for you to find, but it is still a question of fact in respect to which the burden is upon the plaintiff, that the depositing of the rails where they were left,, and leaving them there during the time you find upon the evidence they were left, was by the direction or under the authority of the defendant corporation. In other words, that they were there deposited and were there suffered to remain by the servants and agents of the .defendant corporation, acting in its behalf, and for whose acts the defendant is responsible. But unless upon the evidence in the case the plaintiff has sustained the burden of proof which the law imposes upon her, to show that the responsibility for placing the rails where they were, and suffering them to remain where you may find upon the evidence they did remain, was upon the defendant, you have no occasion to go any further in the consideration of this case. . . .</p> <p>“ It is admitted that Massachusetts Avenue, at the time in question, was a public highway. Any unauthorized use of the public highway, which rendered it less safe and convenient than its condition was when left in the condition in which the public authorities put it, is an obstruction ; and the person who makes such unauthorized use of the highway, or otherwise so obstructs it, commits what is known in the law as a nuisance, for which, in the case I have supposed, he may be indicted and punished criminally. And in some cases he not only may be indicted and punished because of the wrong done to the public, it being what is known as a public nuisance, but he may also be responsible in damages to a person who is specially injured by reason of such obstruction, the person so injured being at the time in the exercise of due care.</p> <p>“ The plaintiff says that there was such an obstruction in this case as to amount to a nuisance. You must determine whether the rails as they were placed did, essentially, really interfere with the use of that highway, and the safety and convenience of the public in the use of the highway, provided it were in the condition in which the public authorities had left it. And if you say that they did obstruct the safe and convenient use of the highway, so as to amount to a nuisance, by reason of the size of the rails, or the way in which they were placed one upon the other, then you will come to the question whether the plaintiff, in the exercise of due care on her part, was thrown down and injured.</p> <p>“ She had the right to go from the sidewalk on to what we ordinarily designate as the carriage-way, at any place where she chose. The carriage-way and the sidewalk all together make up the highway. Assume now that she did trip, and that she was thrown down by reason of the fact that the rails were in this position and that her feet came in contact with the rails, she must satisfy you that she was in the exercise of due care. And by saying that she must satisfy you that she was in the exercise of due care, all that is meant is that she must satisfy you that she was in the exercise of such care as persons of ordinary prudence and discretion do in fact use under similar circumstances.</p> <p>“ Now, there are various things to be taken into consideration, her familiarity with the street, what she knew, if anything, as to whether work was going on at that time in relaying the tracks of the railroad corporation, the time of the accident, how light or how dark was it, what would persons of ordinary prudence and discretion have seen at the time? You may take into consideration, if you find it to be true, that the plaintiff left the sidewalk at or near a certain white post, if you find that that white post was in fact marked white for the purpose of denoting that there, or in the immediate neighborhood, was the stopping place of cars. The plaintiff was not a passenger; she did not intend to become a passenger upon the cars of the defendant corporation. The defendant corporation, as to her, was not required to use the extreme care it was required to use as to the daughter, as to passengers upon the cars. But still, if as matter of common knowledge these posts designated the places at which cars ordinarily stopped, and at which people were invited to go from the sidewalk to the- car, you may take that into consideration as bearing upon the question of what the plaintiff had the right to expect as to the condition of the highway immediately in front of and adjacent to the posts.</p> <p>“ Now, consider all the circumstances of the case, so far as they throw light upon the question of whether the plaintiff herself was in the exercise of due care. She must prove that she was. If she was not in the exercise of due care, and you cannot say fairly that upon all the evidence it appears that she was using due care, the care she owed to herself and to this corporation to avoid injury, you have no occasion to go further, but will return a verdict for the defendant. On the other hand, if you find that the plaintiff was in the exercise of due care, and you find that the presence of these rails where they were and in the position in which they were, with reference to each other, ereated an obstruction upon that highway and made travel unsafe and less convenient than it otherwise would have been, and that the defendant is responsible for the condition of things existing at this place, the plaintiff will be entitled to a verdict, and you will come to the question of damages.”</p> <p>At the conclusion of the charge, the counsel for the defendant made the following statement: “ I claim that upon the evidence the white post is not set at all for a person to leave the street at that point, and that all the evidence in the case points to the contrary; that it is simply evidence that the post indicates that the stopping place is in the vicinity at a flagging; and that that is the proper place for a passenger to take a car, especially when there is any obstruction in the street.”</p> <p>The judge then said: “ Very well, I will modify what I have said to conform to that. You will say, gentlemen, what the white post designates upon the evidence in the case; and, I think, also, you will take into consideration the knowledge, which I must assume you have in common with men in general, in respect to that matter. If a white post does not designate that that is a place where persons are invited to leave the sidewalk for the purpose of boarding a car, but that it apprises them that there is a crossing near by, or some place near by, where cars are to be boarded, then it would cease to be material as bearing upon the question of whether the plaintiff was in the exercise of due care.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Mortgage — Equity Practice — Findings of Master — Appeal from Decree — Assignment—Trust—Validity of Agreement after Foreclosure — Right to Redeem.</p> <p>Upon an appeal from a decree of a justice of the Superior Court sitting in equity on questions of fact arising upon exceptions to a master’s report, his findings ■will not be reversed, unless they clearly appear to be erroneous.</p> <p>If a mortgage of land is assigned by the mortgagee, with the knowledge and assent of the beneficial owner of it, to a trustee under a declaration of trust, who holds it and other property as security for the payment of two notes indorsed by A., and who, under the terms of the trust, forecloses the mortgage by sale, and subsequently, the notes having been paid, conveys the property to A. free from all encumbrances, an agreement made after the foreclosure sale between B., a grantee of the mortgagor, and the former beneficial owner of the mortgage, that the sale shall not operate to the prejudice of B., if not authorized or ratified by A., is invalid, and B. cannot maintain a bill in equity against A. to redeem the land from the mortgage.</p>

<p>Appeal, by the defendants in an action of contract, from the taxation of costs in the Superior Court. The items in question were stated in the record as follows: “ Travel for October Term, 1898, of plaintiff from Rhode Island, from State line to court 40 miles each way, $2.64. Travel for January Term, 1899, of plaintiff from Rhode Island, from State line to court 40 miles each way, $2.64.” Braley, J., affirmed the clerk’s taxation; and the defendants appealed to this court.</p>

<p>Conversion — Evidence — Pledge — Lien.</p> <p>In an action for the conversion of certain horses, which had heen hoarded with the defendant, a stable keeper, by the plaintiff, who signed an instrument, by which he relinquished to the defendant all claim on the horses “ until his claim of” a sum named “for hoard and care is paid in full, which I agree to do by weekly payments of ” a certain sum, oral evidence is inadmissible to show that the defendant agreed that, if the plaintiff would have the instrument executed and handed to him, he would then permit the plaintiff to go on using the horses in the ordinary course of business.</p> <p>If the owner of horses which have been boarded with a stable keeper executes an instrument by which he relinquishes to the latter all claim on the horses “ until his claim of ” a sum named “ for hoard and care is paid in full, which I agree to do by weekly payments of ” a certain sum, the transaction is in the nature of a pledge of the horses as security for the payment of the sum named at the weekly rate specified, and upon the failure of the pledgor to pay as agreed, the whole debt becomes due, and the pledgee can enforce his security by a sale of the property; and whether, by accepting payments after a breach of the agreement, he has waived his right to insist upon the payment of the whole debt, is a question for the jury in an action for conversion of the property.</p>

<p>Complaint to the District Court of East Norfolk, for keeping an unlicensed dog, at Weymouth, on August 24, 1898. Trial in the Superior Court, on appeal, before Sherman, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The defendant filed a plea in bar, alleging a former acquittal of the same offence, and “ that the offence charged in said complaint (the former complaint) was the same offence as is charged in this complaint,” to which plea the government filed a replication denying the record of such supposed acquittal, whereupon issue was joined and tried by a jury.</p> <p>The defendant put in evidence a certified copy of a complaint charging him with keeping an unlicensed dog at Weymouth on August 24, 1898, and the record of the trial and acquittal of the defendant upon such charge before the District Court of ,East Norfolk, on September 19, 1898.</p> <p>The defendant called as a witness George B. Bailey, who testified that he was a constable of Weymouth and the complainant in this case; that the defendant in this case and the defendant named in the complaint and record of acquittal introduced in evidence were one and the same person; and that he was present at the District Court of East Norfolk and saw the defendant tried, found not guilty and discharged. On cross-examination, the witness testified, subject to the objection and exception of the defendant, that he was the complainant in three cases, each charging the defendant with keeping an unlicensed dog, at Weymouth, on August 24,1898 ; that on that day the witness visited the” premises of the defendant at Weymouth and there saw three dogs, and was told by the defendant that he kept three dogs; that the defendant was acquitted upon two of the complaints and convicted upon one and appealed; and that he was unable to identify or describe the dogs, or to state which dog the defendant, was convicted of keeping, or which dogs he was acquitted of keeping.</p> <p>Upon the foregoing pleadings and evidence the defendant requested the judge to rule, that if the defendant, upon any evidence that might have been produced, could have been convicted at the trial of the complaint, on which he was found not guilty, of the offence that is charged in the complaint on trial, the plea in bar must be sustained and the defendant discharged. But the judge refused so to rule; and the defendant excepted.</p> <p>The judge ruled that the defendant had been acquitted of keeping some dogs ; that the burden was upon him to satisfy the jury, by a fair preponderance of evidence, that he was acquitted of keeping the same dog which the District Court found was kept unlawfully; and that the burden was upon him to show that this was the same dog of which he was acquitted of keeping. The defendant excepted.</p> <p>The judge submitted to the jury the question, “Is the offence with which the defendant is charged the same offence of which he was acquitted ? ” The jury answered “ No ” ; whereupon the judge overruled the plea in bar; and the defendant excepted.</p> <p>A general plea of not guilty was then entered, and the defendant placed at the bar for trial.</p> <p>Bailey, called as a witness by the government, testified again that on August 24, 1898, he visited the premises of the defendant ; and subject to the objection and exception of the defendant, that the defendant then said he had four male dogs, one of which was a pup ; and that the witness saw three dogs on the defendant’s premises.</p> <p>Charles H. Lovell, called as a witness by the government, testified, subject to the defendant’s objection and exception, that during the time'from July to September 30,1898, the defendant had on his premises “ half a dozen, more or less,” of dogs.</p> <p>The defendant testified that he moved to Weymouth from Boston on August 1,1898, expecting to run a hotel there during the summer and to return to Boston in the fall; that on August 15, he received three dogs from New Hampshire, and kept them until after the date of the complaint; that on August 24, he had some conversation with the complainant, in which he admitted keeping the dogs, and said he would have the licenses transferred to Weymouth; that on August 25, he applied for licenses for the dogs, in Boston, at the police station of the district in which he had previously resided, and to which he expected to return; that he obtained the licenses on August 30, and had them in his pocket when arrested on September 13, and had them transferred and recorded in the town clerk’s office in Weymouth on the day of his trial in the District Court; and that on August 24, the dogs were not licensed in the Commonwealth, having then been here nine days. There was no evidence of the identity of either of the three dogs.</p> <p>The defendant requested the judge to rule as follows: “ 1. Upon all the evidence the government has failed to prove the defendant guilty of the crime charged, and he must be acquitted. 2. If the defendant became the owner or keeper of the dog in question after May 1,1898, and applied within a reasonable time for a license for the dog, and subsequently obtained such license, and within thirty days from the time the defendant took the dog to Weymouth he caused the license to be recorded in the town clerk’s office in Weymouth, he must' be acquitted. 3. If the defendant became the owner or keeper of the dog in question after May 1, 1898, and within a reasonable time applied for and obtained a license for the dog, and caused the license to be recorded in Weymouth as required by law, the defendant must be acquitted.”</p> <p>But the judge refused to rule as requested ; and the defendant excepted. The judge ruled that the burden of proof was on the government to prove all material facts beyond a reasonable doubt; and that if the defendant became the owner and keeper of the dog in question on August 15, 1898, and the dog was not licensed until after August 24, 1898, and the dog was the same for keeping which the defendant was convicted in the District Court, that would authorize the jury to find the defendant guilty.</p> <p>The jury returned a verdict of guilty. If any of the rulings were erroneous, the verdict was to be set aside; otherwise, the verdict was to stand.</p>

Indictment, under Pub. Sts. c. 205, § 15, charging the defendant with taking a bribe as a juror to give his verdict in favor of the defendant in a case on trial in the Superior Criminal Court. At the trial in the Superior Court, before Grasldll, J., the defendant, before the impanelling of the jury, presented a motion to quash the indictment, alleging defects both in form and substance. The judge overruled the motion, and the defendant excepted.

<p>Bill in equity, filed March 4, 1898, against the Boston Gas Light Company, the South Boston Gas Light Company, the Roxbury Gas Light Company, the Bay State Gas Company of Massachusetts, the Massachusetts Pipe Line Gas Company, the Mercantile Trust Company, and the Brookline Gas Light Company, alleging the following facts:</p> <p>The plaintiff is the owner of certain “ United Gas ” bonds of the first and second series, and brings his bill in behalf of others also having similar interest. The Bay State Gas Company of Delaware is the owner of all the stock of the Bay State Gas Company of New Jersey.</p> <p>On or about January 1, 1889, J. Edward Addicks and William E. L. Dillaway were owners of or had agreed to purchase certain shares of stock, being the great majority of all the shares, in certain gas companies, specifically named below, engaged in manufacturing and furnishing gas in Boston.</p> <p>On or about March 25, 1889, Addicks and Dillaway entered into two written agreements with the Bay State Gas Company of New Jersey and the Mercantile Trust Company of New York, each dated January 1, 1889. In the first agreement, it was provided that, whereas Addicks and Dillaway, called therein the owners, had agreed to purchase 4,800 shares out of 5,000 shares of the Boston Gas Light Company, 5,800 shares out of 6,000 shares of the stock of the Roxbury Gas Light Company, 3,900 shares out of 4,400 shares of the stock of the South Boston Gas Light Company, and 4,993 shares out of 5,000 shares of the stock of the Bay State Gas Company of Boston, and proposed to purchase, if they could advantageously, the residue of the stocks of such companies, and the stock of ten other gas companies in Boston and adjoining cities and towns, having an aggregate capital of $3,180,000; and that whereas, to make such purchases the owners required $12,000,000, and had applied to the trust company to issue certificates to that amount to be secured by the transfer to it of such stocks, and the New Jersey Gas Company desired to purchase the stocks subject to the pledge thereof to the trust company to secure the $12,000,000 indebtedness, therefore the parties agreed,</p> <p>First, that the owners should sell their interest in the stocks to the Bay State Gas Company of New Jersey, called in the agreement the gas company, subject to the indebtedness to be created in the purchase thereof; that the Bay State Gas Company of New Jersey would issue to the trust company its bonds in denominations of $1,000 each, to the amount of $12,000,000, with interest at five per cent in gold, each of the bonds to contain a provision for a sinking fund for its redemption at five per cent premium, to be created by a reservation beginning January 1, 1894, by the trust company out of the dividends on the stocks of the companies transferred to it after expenses, taxes, and interest on the bonds, of one per cent of the principal of the bonds; and the bonds to provide further that “ if the residue applicable to such reservation be insufficient in amount, the Bay State Gas Company of New Jersey will, on or before the 1st day of April, yearly, in every year, pay to the trustee such deficit.” Second, that, in consideration of the issue of these bonds by the New Jersey Gas Company, and of the transfer to it by Addicks and Dillaway of the stocks of the Boston Gas Light Company, the Roxbury Gas Light Company, the South Boston Gas Light Company, and the Bay State Gas Company to the amounts above stated, the trust company agreed to execute trust certificates to the amount of $12,000,000 payable in gold, bearing interest at the rate of five per centum per annum, payable semi-annually in gold, and agreeing thereon to pay the amount of such certificates to the holders, provided funds were received under the trust agreement sufficient to pay all outstanding certificates, and reciting that they were “ all equally secured ” by the shares of stock so transferred, and that the holder was entitled to the benefit of the sinking fund to be created in the manner therein set forth, and that if any instalment of interest thereon which becomes payable shall not be paid when demanded, and the default in such payment shall continue for three months, the principal of all such series shall become due and payable in the manner and with the effect provided in the trust agreement, and that the trust company incurred no personal liability.</p> <p>Third, that the trustee should hold the stocks in trust for the common use and .benefit of all certificate holders:</p> <p>1. To transfer and deliver the stock to the owners or their assigns whenever all persons beneficially interested in the trust have been fully paid.</p> <p>2. To demand and receive all dividends declared on such stocks, and any and all interest, income, or other profits, and all money or other things of value which might, until the certificates were paid, come to the owners of the stocks; and to “ apply such dividends to the extent that they shall be paid or declared out of annual profits and such interest and income ” .to the payment of its annual expenses and compensation, the payment of taxes, the payment of coupons annexed to the certificates and bonds, and the creation of the sinking fund, and the surplus, if any, to be paid to the owners or their assigns.</p> <p>3. To purchase certificates for cancellation with the sinking fund.</p> <p>4. In case of default in payment of interest coupons, or of default in the creation of the sinking fund, either continued for three months, or of default in the performance of any condition of the bonds or certificates or in the agreement contained, the trustee might in its discretion, and should upon request in writing of holders of one fourth in nominal amount thereof, declare the principal of all such bonds and certificates to be forthwith due and payable, and if the principal should become due and so remain for thirty days, the trustee might, and upon the requisition in writing duly executed by the holders of such one fourth interest, and upon tender of proper indemnity for counsel fees and expenses, should sell the stocks and other property, transferred to it under the agreement, by public auction.</p> <p>5. Until default other than that of the trustee should occur, the trustee “ shall, at all elections of directors of the various companies, the stocks of which shall have been transferred to it hereunder, and all elections, by the stockholders, of officers of said companies, vote in respect of the stock so held by it for such persons, duly qualified to become such, for directors of said companies respectively, and for officers thereof, as the owners or their assigns shall seasonably, from time to time, before such election, designate for election.”</p> <p>6. If by reason of a default the owners or their assigns should not be entitled to designate the persons for election as directors or officers, the trustee “shall, in the absence of, and until a designation for that purpose of the holders of such certificates hereby secured and then outstanding, to be evidenced by a request in writing signed by the holders of at least one third in nominal amount . . . when it shall vote for the persons so designated, vote for such persons ... as it may select.”</p> <p>7. The voting power on any of the shares held by the trustee should never be so exercised as to authorize, permit, sanction, or concur in the creation of any mortgage or lien of any kind upon the property of any of the companies, or the increase of their capital stock or the issue of obligations, or the creation of floating indebtedness or other impairment or diminution of the rights and interests represented by the stocks, and any proxy given by the trustee should express such limitation on its face ; but the trustee might authorize the declaration of a stock dividend to be held by it on the same trusts as the stocks.</p> <p>8. The trustee might, in respect to stocks held by it, consent to a sale of part of the real estate of any company, provided it be arranged that the proceeds of such sale shall be distributed as dividends on the stock, such dividend to be held by trustees for redemption of certificates.</p> <p>Fourth, that the owners therein covenanted with the trustee that they would not, and their executors, administrators, and assigns should not, permit or suffer the making or creation of any mortgage or lien upon the property of any company, or increase of capital stock except as provided, or any issue of obligations of any company, or the creation of floating indebtedness by any company, or other impairment of rights represented by stocks, and that none of these things should be created or done; and that persons designated to the trustee for election as officers and directors should be duly qualified, should faithfully perform their duties, and not do or permit mismanagement of the respective corporations.</p> <p>Fifth, that the trustee was to execute the trusts upon certain terms and conditions, among which was the provision that all the covenants, etc., “ may be specifically enforced by any court of competent jurisdiction.”</p> <p>Sixth, that the trustee might be removed at any time by the vote of the holders of one third in interest of the certificates outstanding.</p> <p>Seventh, that in case a vacancy should at any time exist in the trusteeship by reason of resignation, incapacity, or removal from office of the trustee, or in case of a vacancy otherwise lawfully occurring, notice of a meeting for the appointment of a new trustee should be given the holders of the certificates, stating the purpose of the meeting, and the time and place of holding the same; that at such meeting a successor to the trustee so resigning or removed should be appointed by the vote of the holders of not less than one tenth in interest thereof, then outstanding who should also be a majority in interest of the holders present and voting at such meeting; and that if a new trustee should, not be appointed within twelve months after a vacancy should have occurred, the owners or their assigns should apply to the Circuit Court of the United States for the Southern District of New York for the appointment of a new trustee, and any trustee so appointed should be a trust company having its office in the city of New York.</p> <p>Eighth, that the owners should transfer to the gas company the stocks subject to the lien to the trustee and all their rights under the agreement.</p> <p>Ninth, that the gas company should perform all the covenants and agreements of the owners, and pay the $12,000,000 when due and payable; also pay to the trustee, if the dividends should be inadequate, the sums necessary for expenses, taxes, interest, and sinking fund, and keep a voting register at the trustee’s office upon which all bonds should be entered; and the registered bondholders were declared entitled to vote at meetings of the gas company, and notice of its meetings to such holders were provided for.</p> <p>At the same time a similar agreement was made between the gas company, the Mercantile Trust Company, and Addicks and Dillaway, as owners of the stocks, reciting the first agreement, and the first lien of the bonds and certificates to be issued thereunder, by which it was provided that $4,000,000 additional bonds should be issued by the gas company to be secured by $4,000,000 certificates to be issued by the trust company, as security for' which a second lien upon the stocks was created in the hands of the trustee. Such bonds and certificates were to contain no provision for a sinking fund, but were in other respects to be issued under the same agreements by the gas company as the $12,000,000 bonds to be issued under the first agreement. The bonds under the first agreement are bonds of the first series, and those under the second agreement bonds of the second series.</p> <p>The New Jersey Company was organized about February 16, 1889, with a capital of $1,000,000, one of its purposes being the acquisition of stocks or bonds of other companies. Ad-dicks and Dillaway transferred and delivered to the Mercantile Trust Company the shares of stock in the various companies, and the Trust Company certified bonds of the first series to the amount of $9,000,000, and of the second series to the amount of $3,000,000, which were sold in the market, and by means of such sale all the money necessary to make the purchases of stock was raised, except $500,000. Addicks and Dillaway, on March 13, 1889, sold and transferred to the New Jersey Company their interest in the stock of the Massachusetts companies, subject to the lien of the trust company, and the New Jersey Company issued to Addicks and Dillaway $995,000 of its capital stock, and its bonds under the agreements above recited.</p> <p>On or about April 29, 1889, a special act of the Legislature of Delaware created a corporation under the name of the Peninsula Investment Company, and immediately upon its organization its name was changed to the Bay State Gas Company.</p> <p>On August 9, 1889, Addicks and Dillaway transferred to the Bay State Gas Company of Delaware the capital stock of the New Jersey Company, and their rights in the agreement of March 13,1889, and the Delaware Company delivered to Addicks $5,000 cash, and its own capital stock to the amount of $1,995,000, and Undertook the performance of the agreements binding on the assignors under such agreements.</p> <p>The Delaware Company is the owner of all the shares of stock of the New Jersey Company, and the New Jersey Company holds the legal title to the shares of the Massachusetts corporations, subject to the lien of the trust company, and the power to demand proxies upon the stock of the Massachusetts corporations. The New Jersey Company had no assets, power, or business, except the voting power and the right to demand proxies on the stock of the Massachusetts corporations; and this power is of great value and is the only method of managing the property out of which the bonds and interest are to be paid, and the Delaware Company, by virtue of its control of the stock of the New Jersey Company, exercised its rights to the management of the Massachusetts corporations up to November 1, 1896.</p> <p>Immediately after November 1, 1896, Albert C. Burrage, Henry H. Rogers, John G. Moore, Frederick W. Whittridge, and William Rockefeller w’ere elected directors of these Massachusetts corporations by virtue of certain proxies given by the trust company, and have ever since acted as directors of all four Boston corporations. On November 1, 1896, they owned 18,000 shares of the total issue of 20,000 shares of the capital stock of the Brookline Gas Light Company, and were also the owners of the floating debt of the Brookline Company to the amount of $1,500,000, and were the directors of that company.</p> <p>. The Brookline Company was the rival in business of and occupied with its pipes the same territory as the four Boston corporations, and the purpose of Burrage, Moore, Rogers, and their associates in obtaining their election as directors of the Boston corporations was to obtain advantages, benefits, and gains to the Brookline Company, and they have administered the same through themselves or their agents or servants who have filled the offices of directors of the Boston corporations in violation of the provisions of the agreements above recited, in that the directors of the Boston Gas Light Company increased its floating debt from $180,000 in the year ending June 30, 1896, to $255,000 in the year 1897, and the floating debt of the Bay State Gas Company from nothing in the year ending June SO, 1897, to $245,000, the present amount.</p> <p>The plaintiff and others, holders of the bonds, bought them relying on the covenants and agreements contained in the trust agreements above recited, and relying on the fact that the management of the four Boston corporations was intrusted to people of character and reputation in the community, and familiar with the business of manufacturing gas, who devoted sufficient of their time and attention to promoting the welfare of the corporations. These corporations had a sufficient plant and equipment for their then present and future business, and the making of the loan was further upon the faith that the corporations should be prudently and conservatively managed in the interests of the bondholders; but by the acts of Burrage, Rogers, Moore, and their associates, and the election of themselves, a management opposed to the plan of caring for the business in the manner contemplated by the agreements above recited has been chosen, and the contracts and business which have been entered into have been made for the benefit of the Brookline Company, with the result that the .property and business held by the Mercantile Trust Company is rapidly deteriorating in value, and if such management is not speedily changed there will be a loss to the holders of the bonds, to the Delaware Company, and the owners of the equity.</p> <p>On April 24,1896, Rogers, Moore, and Burrage entered into an agreement with Henry M. Whitney for the sale to him of a controlling interest in the stock of the Brookline Company and about $1,615,000 of its floating debt; and this agreement, simultaneously with its execution, was indorsed by Whitney to the Delaware Company. Subsequently the directors of the Boston Gas Light Company, acting at the instigation and procurement of Rogers, Moore, and Burrage, made an agreement with the Brook-line Company that, if in any year its profits should be insufficient to pay the interest upon its mortgage bonds and upon its floating debt and dividends of ten per cent upon its capital stock, the Boston Gas Light Company should purchase of the Brookline .Company enough gas at one dollar per thousand feet to enable the Brookline Company to pay such interest and dividends; and the profits of the Brookline Company had not theretofore been sufficient for such purposes, and these agreements were entered into without right or authority and were in violation of the terms of the trust agreements and in fraud and impairment of the rights of the bondholders.</p> <p>In the latter part of October, 1896, a new agreement was made between Rogers, Moore, and Burrage on one side and the Delaware Company on the other, by which the agreement with Whitney was cancelled, and instead of the purchase by the Delaware Company of the controlling interest in the stock of the Brookline Company and its floating debt, Rogers, Moore, and Burrage and their associates agreed to purchase of the Delaware Company a controlling interest in the stock of the Dorchester Gas Light Company, about $1,300,000 of the first series of bonds, and the transfer to them in trust of the voting power on the stock of the New Jersey Company, but the agreement for the sale and purchase of gas between the Boston Gas Light Company and the Brookline Company remained in force.</p> <p>By the voting power thus acquired, Rogers, Moore, Burrage, and their associates became invested with the control of the four Boston corporations, and at the same time have had control of the Brookline Company, and were bound by the provisions of the trust agreements and by the provisions of the proxies under which they were elected to follow and observe, as the agents of the trust company, all the stipulations and conditions relating to the exercise of their powers as such directors contained in the trust agreements.</p> <p>The Boston Gas Light Company during the year ending June 30, 1897, paid to the Brookline Company $67,000 upon the pretence that the Boston Gas Light Company had received gas therefor according to the terms of the agreement. The pipes of those two companies are not so connected as to enable such an amount of gas as would be called for by the money so paid, nor any considerable amount, to be delivered. Such payment was a fraud on the bondholders and the owners of the equity in the stock of the four Boston companies, and the conduct of the directors and officers of the Boston Gas Light Company “must be taken to be, under the provisions of said trust deeds, the acts of the agents of said Mercantile Trust Company,” and render the latter liable for maladministration.</p> <p>A portion of the real estate of the Boston Gas Light Company was sold to the Boston Terminal Company in the year 1897 for $700,000, and of that sum $300,000 was used for the payment of dividends and for improvements and betterments, and $400,000 was kept and retained by the officers and directors of the company in violation of the trust agreements.</p> <p>On or about November 1,1897, Rogers, Moore, Burrage, and their associates,, directors in the four Boston corporations, made an agreement with the Massachusetts Pipe Line Company, which had been incorporated on June 9,1896, for the purpose of manufactoring, buying, selling, and distributing gas, to purchase of it gas for enrichment and distribution at twenty cents per thousand feet for the term of fifty years. The Massachusetts Pipe Line Company has not erected any works or laid any pipes, and does not intend to erect any works or to engage in the manufacture of gas, but intends to purchase gas from the New England Gas and Coke Company, a voluntary association of persons, and receive it into its mains and deliver it to the four Boston corporations.</p> <p>It was the purpose and intent of the trust agreements that the business should be conducted under the laws of Massachusetts in the methods and manner they designate, and that these gas companies should not engage in any new, untried, or experimental schemes whereby they should incur any liability for indebtedness or hazard their assets. By reason of the requirements of the statutes of this Commonwealth and the demands of the consumers of gas, it is impossible to produce gas for illumination by distillation of coal of sufficient candle power to satisfy the demands of the public, and for this reason the contract with the Massachusetts Pipe Line Company provided that the gas to be furnished thereunder should be capable of enrichment to twenty-five candle power and be a merchantable gas. It is an impossibility to produce a merchantable gas from coal enriched so as to produce a light of twenty-five candle power according to well-recognized methods of enrichment; and the introduction of any gas made and enriched in such manner into the pipes of the four Boston corporations would result in incalculable damage to the business by bringing gas for lighting into disrepute, and would result in disuse and impairment in value of a vast amount of real estate and machinery now used in the business, and would seriously endanger the value of the property represented by the stocks of the gas companies, and would impair and diminish the security of the bondholders in a manner prohibited by the terms of the trust agreements. The experiment proposed to be used by the New England Gas and Coke Company is under a new, untried process, and if it should prove a failure the Boston companies are in danger of being put to great loss and damage. Improvements in manufacturing are constantly being made, and by the contract with the Massachusetts Pipe Line Company the opportunity for saving money by the use of improved processes would be lost to them.</p> <p>The principal business of the Bay State Gas Company of Boston is to manufacture and sell to the other gas companies such gas as they needed in excess of what they were able to make with their then existing plant and apparatus, and this contract with the Massachusetts Pipe Line Company will destroy its business and make it impossible for the dividends of the stocks of the other companies to meet the interest payments on the bonds.</p> <p>For all these reasons it is manifest that the contracts of the four Boston companies and Massachusetts Pipe Line Company is the incurring of an obligation and the creation of a floating indebtedness detrimental to the bondholders. The trustee incurs no liability for the acts of the directors of the gas company.</p> <p>■ Rogers, Moore, Burrage, and their associates are interested as stockholders and bondholders in the New England Gas and Coke Company, and that company is the owner of all the stock of the Massachusetts Pipe Line Company, so that, in making the contract between the four Boston corporations and the Pipe Line Company, they acted with a personal interest on both sides of the contract, and for their own advantage and to the injury of the security held by the trustee.</p> <p>The method provided in the trust agreements for the removal of the trustee is by a vote of one third of the bondholders. No record is kept of such holders, and it would take a long time to get together the necessary number, and the greater portion of the holders are unable to see the danger to their security, and the property is being and will continue to be managed in such a manner as to destroy the security of the bondholders, unless the court shall interfere. The plaintiff was ignorant of the matters alleged until a few weeks last past.</p> <p>Any application to the trust company to bring any action would be useless, and a delay to apply for a trustee outside the jurisdiction of this court would result in further loss and injury to the property within the jurisdiction, and the active interference of the court of equity is needed to protect the property from irreparable injury by reason of the acts of the agents intrusted by the trust company with the care and custody of the properties.</p> <p>The prayer of the bill was, among other things, that the Mercantile Trust Company might be removed from the position held by it under the trust agreements and a new trustee appointed.</p> <p>Several persons composing the firm of Brown Brothers and Company, and the owners of “ United Gas ” bonds, were allowed, upon their petition, to intervene as parties defendant; and various other owners of the bonds were allowed, upon their petition, to intervene as parties plaintiff.</p> <p>The several defendants, except the Mercantile Trust Company, demurred to the bill, assigning, among other grounds of demurrer, want of equity, non-joinder of necessary parties, and multifariousness ; and the Mercantile Trust Company appeared specially and moved that the bill be dismissed as against it, for want of jurisdiction. Hearing before Hammond, J., who reserved the case upon the demurrers and the motion to dismiss for the consideration of the full court.</p>

<p>Aldermen of Boston — Elevated Railway Company—Taking of Land—Assessment of Damages-—-Statute.</p> <p>The hoard of aldermen of the city of Boston have jurisdiction by virtue of § 11 of St. 1894, c. 548, entitled “ An Act to incorporate the Boston Elevated Railway Company and to promote rapid transit in the city of Boston and vicinity,” to assess damages suffered by a landowner whose land was taken by said company.</p>

<p>Tobt, for malicious arrest. Trial in the Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance, as follows.</p> <p>It appeared that the plaintiff was a manufacturer of snowplows in Lexington, and the defendant, who was a manufacturer of malleable iron in Worcester, had several times made the iron parts for the plaintiff’s machines ; and that before the time of the trial of this case the defendant had recovered judgment for the sum of $710.50 in an action in which this plaintiff was arrested, which sum was substantially less than the amount claimed by the plaintiff to be due him.</p> <p>The defendant’s evidence tended to show that the plaintiff had been given time for three years or more on his bill for iron parts of snow-plows; that the plaintiff came to the defendant’s place of business in Worcester on September 19, 1896, at about nine o’clock in the morning, and informed the defendant’s bookkeeper that he had sold out his business in Lexington and was going West; that he would like to see the defendant and that he had so much money to give him to settle the account, and had not much time to talk about it; that the defendant was not in his office, and the bookkeeper telephoned to him at his home, repeating to him what the plaintiff had just said; that thereupon the defendant went to his counsel, related to him all the foregoing facts, and was informed by him that the plaintiff could be detained if he was going to leave the State without paying the account; that in the meantime the plaintiff had gone out of the defendant’s office, but came back and waited for the defendant; that thereafter, at about ten o’clock on the same morning, the defendant went to his place of business and there found the plaintiff, who offered him $250 to settle his bill, and said that he had sold out his business and was going West, and that the defendant had better accept this, as it was more than he would otherwise get; that the defendant refused to accept this offer, and the plaintiff left the defendant’s place of business ; that thereupon the defendant’s bookkeeper took the account against the plaintiff to the defendant’s counsel, and stated to him what had just taken place between the plaintiff and the defendant, as above recited; that the attorney made out the proper papers for causing the arrest of the plaintiff upon mesne process, and made the necessary affidavit before a magistrate, without the presence of either the defendant, the bookkeeper, or any other person; that the attorney put the papers into the hands of a deputy sheriff, who arrested the plaintiff at the railroad station; and that the plaintiff was informed by the officer that he could go before a magistrate and recognize, or take the oath that he did not intend to leave the State, or he could settle the bill. The officer testified that he told the plaintiff that he was informed that the plaintiff was going to leave the State; and that the plaintiff replied that he had said he was going West, but that he meant the western part of the State.</p> <p>It appeared that the plaintiff went with the officer to the office of the defendant, and had a further conversation about the bill, and then was taken, at his own request, to see counsel, and then to the telegraph office, where he sent a message to Stone-ham, to get a surety to recognize for him, and then he was taken to the Central District Court of Worcester, where he was represented by counsel, to get a time fixed for a hearing, but the justice of that court was busy holding the session and did not appoint a time. There was evidence tending to show that the plaintiff could have given notice to the defendant or his attorney, both of whom were in town on that afternoon; that he could have had notice issued by other magistrates than the one before whom he was taken; that no effort was made to apply to another magistrate, and the officer, having waited until five o’clock in the afternoon for the surety, took the plaintiff to jail. It appeared further that the surety arrived in Worcester that same evening, but could not be admitted to the jail until noon on the next day, Sunday, when the plaintiff was released; that on the following day, September 21, 1896, at eight o’clock in the morning, the plaintiff gave notice, returnable one hour from that time, that he desired to take the oath that he did not intend to leave the State; and that upon his statement that he did not in fact intend to leave the State he was released. The defendant’s evidence further tended to show that the plaintiff testified before the magistrate that he meant the western part of the State when he said he was going West.</p> <p>The plaintiff denied that he said at any time he was going West, and testified that he said he was going to Westborough, and it was not denied that during the second interview with the bookkeeper, before the defendant had come in, the plaintiff said he was going to Westborough, nor that the bookkeeper examined the time-tables for trains going east from Worcester at the plaintiff’s request. The plaintiff further testified that the account between himself and the defendant was in dispute ; that he had several times prior to September 19 called upon and written to the defendant about the settlement of the account; and that the plaintiff, during most of the time between the contraction of the debt and the arrest, had been in business in Lexington and was the owner of considerable real and personal property.</p> <p>It appeared from the plaintiff’s evidence that he had transferred his business at Lexington to a firm in Stoneham, which was in the same business, and of which he became a member; and that his personal property was mainly in the business of such firm when he was arrested in Worcester. The plaintiff, on cross-examination, admitted that on September 21, the day when he was released from arrest at Worcester, he mortgaged all his real estate for its full assessed valuation. The defendant offered to show that the mortgage was not given for a present consideration and was for a larger sum than the indebtedness of the plaintiff to the mortgagee, for the purpose of showing that the mortgage was fraudulent. The judge, upon objection, excluded the evidence ; and the defendant excepted.</p> <p>The defendant asked the judge to rule that if the defendant laid the facts before his counsel and acted entirely upon his legal advice as to arresting or causing the arrest of the plaintiff he was not liable in this action. The judge declined to make this ruling, but instructed the jury as follows: “ The act of his [the defendant’s] attorney would be his act, . . . that is, he had committed the matter to the hands of his counsel, and his counsel had implied authority from him to do all such things as in his discretion were necessary in the prosecution of the suit, and in the enforcement of the payment of that debt which had been left with him for collection. . . . The defendant as principal would be responsible for the acts of his agent and attorney in the transaction of his business, and if the affidavit for the arrest was made by the defendant’s attorney, the defendant was liable in the same manner and to the same extent as if it were made by the defendant himself.” The judge gave no further instructions upon this subject, but did instruct the jury that if the plaintiff made the statements to the bookkeeper and the defendant, which they testified to, and the jury believed that these statements gave the defendant reasonable cause to believe that the plaintiff intended to leave the State, then the defendant was justified in making the arrest, and the plaintiff could not recover. To the refusal to rule as requested the defendant excepted.</p> <p>The defendant asked the judge to rule further that if the magistrate failed to act or was not asked by the plaintiff to act in giving him a hearing on Saturday afternoon, and the plaintiff was sent to jail because he did not find a magistrate, the defendant would not be liable for the damages resulting by reason of his failure to find the magistrate or to ask to be released upon taking the oath. The judge declined to give this ruling, but instructed the jury as follows: “ And this leads me to say a word concerning one aspect of the case which has been commented upon in the argument. It is contended by the defendant that the plaintiff did not avail himself as he ought of the opportunities which were afforded him to secure his release from arrest; and the claim of the defendant, as I understand it, is, that he ought not to be called upon to pay damages for so much of, or that part of, the plaintiff’s imprisonment which was due to his own failure to avail himself of such opportunities as were presented to him to secure his release from arrest. If the plaintiff was fully informed of his rights and given an opportunity to apply to a magistrate to take the oath before him that he did not intend to leave the State, and if he unreasonably neglected to avail himself of such opportunity, then for so much of his detention as was due to his own neglect the defendant in this action is not responsible. But it is for you to say, upon the evidence in the case, whether he did unreasonably neglect to avail himself of any of the opportunities that were afforded him, and furthermore, whether any opportunities were afforded him, to apply to a magistrate to take the oath to which reference has been made.” To this ruling and refusal to rule the defendant excepted. Upon this subject the judge further instructed the jury as follows: “It is for you to say whether anything more was incumbent upon the plaintiff than he did, whether he did all that could reasonably be required and expected of him. ... If there was no neglect upon the part of the plaintiff then the defendant, if he is liable in this action, is responsible in damages for all the injuries which were sustained by the plaintiff as the consequences of this illegal arrest.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract, upon two policies of insurance, issued by the defendant to William D. Lovett, deceased, upon the ship County of Yarmouth. At the trial in the Superior Court, without a jury, before Dunbar, J., there was evidence tending to show that each policy was for one year, one dated October 22, and the other December 30, 1892, and that each contained the clause printed in the opinion.

Tort, in three counts, for' breaking and entering the plaintiff’s close in Boston and taking away soil and rock which was a part thereof, and for negligence in blasting by which the plaintiff’s real estate was injured. Trial in the Superior Court, before Bond¡ J., who allowed a bill of exceptions, in substance as follows. The plaintiff owned a lot of land with a house on it abutting upon a lot owned by the defendant.

<p>Complaint, under the bastardy act, Pub. Sts. c. 85. At the trial in the Superior Court, before Richardson, J., the jury returned a verdict of guilty; and the respondent alleged exceptions, which appear in the opinion.</p>

<p>Bill in equity, filed May 11, 1898, to recover damages for an alleged breach of the following agreement: “ Dec. 29th, ’97. We, the undersigned, hereby agree to take as our commission in the transaction referred to in an agreement of even date herewith between Sarah E. Cook and Chas. E. Cook, trustees, and Albert L. Jewell, the equity in the Antwerp St. estate mentioned therein, subject to a $3,000 mortgage, and $200 cash, and we, the said trustees, hereby agree to pay commission as above indicated; deed to be delivered and cash paid at the date that the said agreement between said Cooks and said Jewell is carried. into effect. Sarah E. Cook for herself and co-trustee, Henry A. Richards, Alvord Bros, and Co.” Hearing before Knowlton, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>“ The first question arises on the construction of the contract in writing on which the suit is brought. I decline to consider any oral testimony to enlarge, vary, or contradict the writing. I consider the evidence to show the situation of the parties when the writing was made, to obtain from it such aid as we can in the application and interpretation of the contract.</p> <p>“I find that the defendants had employed the plaintiffs as brokers to act for them in obtaining a sale or exchange of their property under such circumstances as would entitle the plaintiffs to a commission on obtaining a satisfactory contract for a purchase or exchange. They obtained a contract which was satisfactory to the defendants, in connection with an arrangement whereby the plaintiffs were to receive their commission in part by a conveyance of the Antwerp Street estate, and in part by a payment of $200, instead of being paid entirely in cash, as is shown by the contract in evidence.” Thereupon the contract between the defendants and Jewell, dated December 29, 1897, was executed, by which Jewell agreed to sell to the defendants certain estates in that part of Boston called Allston, also an estate on Antwerp Street in Alls ton, the same to be subject to a mortgage of $3,000, and the defendants agreed to sell to Jewell a parcel of land in Newton, “ all of said premises to be conveyed on or before February. 3rd, 1898 ”; and on the same occasion the paper in suit was signed. Both parties then expected that the Antwerp Street estate would be conveyed by Jewell to the defendants on February 3,1898, subject to a mortgage of $3,000, in accordance with his agreement. The defendants were ready to perform their contract with Jewell on February 3, but Jewell was not ready, and at his request performance of the contract was postponed until February 15,1898. On this latter date the defendants were ready and offered to perform their contract, but Jewell was not, and at his request the time for performance was again extended, this time to March 1st. At the last date the defendants were again ready and desirous to perform their contract, but Jewell was not. Jewell endeavored to get another extension of the contract, but the defendants refused to agree to it, and declined to hold themselves longer bound to Jewell under .the contract, and abandoned it, and have never since attempted to carry it out or to enforce it.</p> <p>“The first question is whether the writing should be interpreted as making the payment of the plaintiffs’ commission conditional upon the actual carrying into effect of the contract between the defendants and Jewell. I am of opinion that it should not. As the defendants had a contract, which apparently could have been enforced in equity, I am of opinion that on their abandonment of the contract and failure to attempt to enforce it the plaintiffs became entitled to receive their commission.”</p> <p>“ I find that the employment of the plaintiffs by the defendants was such as should have made them exclusively the 2’epre-sentatives of the defendants’ interests, and should have kept them free from any alliance with representatives of the other party to the contract which might subject the brokers on either side to temptation to act adversely to their clie2its’ intei’ests. Jewell was represented by a broker who was employed in such a way as would ordina2’ily entitle him to a commission if an exchange were effected. The plaintiffs before effecting an exchange entered into an arrangement with Richards, the broker of Jewell, that the brokers for the contracting parties should share equally the commissions obtained on both sides.</p> <p>“ The plaintiffs contended that the defendants were informed of this arrangement. I do not find that the contention is established by proof. In a letter to the defendants they said, ‘ Our commission is not nearly as much in this transaction as in a case where we were the only brokers, for we learned of the property through Mr. Jewell’s broker, with whom we shall have to divide, —you can therefore judge of our disinterestedness in recornmending this trade.’</p> <p>“ This did not indicate that they were to have one half of the commissions of Jewell’s broker, but merely that they would retain only one half of their own; I therefore find that the defendants had no knowledge of the real arrangement, and I also find that Jewell had no knowledge of it. There was other evidence which indicated that Jewell’s broker was to receive a substantial commission from Jewell, and that the defendants were told something about it.</p> <p>“I deem an arrangement of this kind under ordinary circumstances to be against public policy. Whether under the circumstances of this case the plaintiffs should be cut off from recovering on this account, I am in doubt. Except in these particulars the plaintiffs’ case is made out.”</p> <p>Such decree was to be entered as law and justice might require.</p>

<p>Adverse Use — Right of Way — Finding of Master to he Final and Conclusive ■—• Practice.</p> <p>Where, on a bill in equity to restrain the defendant from building over a passageway in which the plaintiff claims a right of way, the question whether the use was adverse is one of fact for the master, and his decision is by agreement of parties to he final and conclusive, it is not open to the plaintiff to contend that the finding of the master that the use was not adverse, and under a claim of right was erroneous and not warranted by the evidence or by the facts in his report upon which he based this finding.</p>

<p>The first case was a bill in equity filed April 7, 1898, by the trustees under a trust deed executed by Francis B. Hayes on June 12, 1889, seeking instructions as to their duties thereunder. At the request of the parties, the case was reserved by Barker, J., for the consideration of the full court, upon the bill, answers, and an agreed statement of facts.</p> <p>The second case was a petition by the executor of the will of Francis B. Hayes seeking instructions as to his duties thereunder. At the request of the parties, the case was reserved for the consideration of the full court by Field, C. J., upon the bill, answers, an agreed statement of facts, and a certain stipulation. The facts in each case appear in the opinion.</p>

Petition, to the Probate Court of Suffolk County, by the trustees under a deed of trust of Belinda L. Randall, for instruetians as to the payment of a collateral inheritance tax. The judge entered a decree, the nature of which appears in the opinion, and an appeal was taken. Knowlton, J., reported the case for the consideration of the full court. The facts appear in the opinion.

<p>Petition in equity, filed November 30,1898, under St. 1898, c. 490, by ten taxable inhabitants of Boston, against the treasurer of the city and the members of the Boston Transit Commission, and by amendment filed December 6, 1898, against the Boston Elevated Railway Company and the West End Street Railway Company, to restrain the construction of a tunnel to East Boston, as proposed by said commission, assuming to act under the provisions of St. 1897, c. 500, § 17. Hearing before Hammond, J., who reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Will — Trust — Payment of Income.</p> <p>A testator gave by will the residue of his estate to a trust company, in trust to pay the income to his children G. and J., and to G. as trustee for his daughter S., and to G. as trustee for his daughter E., “in even and equal portions, one fourth to each, for and during the lives and the life of the survivor of them, and likewise during the life of the said S. and E. and the survivor of them, the child or children of either of them deceased, to receive the portion which would have belonged to said deceased child, saving and excepting the child or children of E., until the decease of the last surviving one of my said four children.” Held, that the expression “ child or children of either of them deceased ” referred only to the child or children of G. and J., and that on the death of J. leaving two children surviving him, the children should take the portion payable to J. during his lifetime.</p> <p>The construction of the words “ child or children of either of them deceased ” which was adopted when this will .was before the court in the case of Shattuch v. Balcom, 170 Mass. 216, is reconsidered and rejected.</p>

Petition to the judge of probate of the county of Worcester, by the trustee under certain items of the will of James H. Wall, praying for instructions as to bis duties thereunder. After a decree in that court an appeal was taken, and a trial was bad before Hammond, J., who reserved the case for the consideration of the full court.

<p>Bill in equity, filed in the Superior Court, alleging that, on or about March 31, 1875, the plaintiff paid over to one Lucinda E. Phillips the sum of $1,000 in bank bills, the same, with accumulating interest thereon, to be held in trust by her, for the benefit of the plaintiff, during the lifetime of Lucinda E. Phillips, and she so received the same, and agreed to hold such sum with its accumulations in trust as above set forth; that on January 27, 1894, Lucinda E. Phillips died, leaving a will and a large estate, which will was duly proved and allowed; that the defendant was duly appointed executor under the will; that the testator had never paid over to the plaintiff the trust fund, or any part thereof; that the trust was terminated by the death of the testatrix, and the trust fund had passed, together with the assets of the estate, into the hands of the defendant; that demand had been made upon the defendant by the plaintiff for the payment to her of the trust fund, with the accumulated interest thereon; and that the defendant refused to pay the same over to the plaintiff.</p> <p>The prayer of the bill was that the defendant be ordered to pay over to the plaintiff the trust fund and the accumulated interest thereon; and for further relief.</p> <p>The defendant demurred to the bill, assigning, among other grounds of demurrer, want of equity, and an adequate remedy at law. The demurrer was overruled, and at the hearing on the merits, Mason, 0. J., entered a decree that the defendant pay over to the plaintiff the trust fund of $1,000, together with its accumulations, amounting to $2,600.79, with costs; and that execution issue for the costs.</p> <p>The defendant appealed to this court; and at his request the judge reported the following facts found by him :</p> <p>On or about March 31, 1875, Lucinda E. Phillips made a valid gift of $1,000 to the plaintiff, and gave her possession thereof.</p> <p>On the same day the $1,000, being then the property of the plaintiff, was delivered to Lucinda E. Phillips, to be by her invested and held in trust for the plaintiff until the latter should be of full age, or, at the election of Phillips, until the death of the latter.</p> <p>The trust fund was on the same day, with the knowledge and assent of the plaintiff, deposited in the Provident Institution for Savings in the name of Phillips, as trustee for the plaintiff, and the trust fund subsequently gained $453.13 income from the deposit.</p> <p>On May 2, 1877, Phillips withdrew from the deposit of the trust fund $190.29, and on August 23,1882, withdrew the further sum of $524, and on August 2,1888, withdrew the further sum of $738.84, thereby closing the account with the Provident Institution for Savings; and she commingled with her own estate the several portions of the trust fund so withdrawn, and from the time of such withdrawal did not keep the same, or any part thereof, invested separately in trust for the plaintiff, but such withdrawals and such commingling, with the trustee’s own estate were unknown to the plaintiff until after the death of Lucinda E. Phillips.</p> <p>Phillips died on January 27, 1894. The defendant was appointed and qualified as executor of her will on February 23, 1894, and was not informed of any claim by the plaintiff that a trust had been held for her benefit by Phillips for nearly two years after his appointment as executor.</p> <p>On January 25, 1896, the plaintiff brought an action at law against the defendant as executor of the will of Phillips to recover the trust fund and its accumulations. The pleadings in that action are made part of this finding. That action was brought in the Superior Court, carried upon demurrer to the Supreme Judicial Court, the decision in that court being reported in 167 Mass. 363, and thereafter was determined by judgment for the defendant in the Superior Court on February 1, 1897.</p> <p>At and before the termination of the action at law the plaintiff was in ill health, and not reasonably able to attend to business, and such condition continued until shortly before the bringing of this bill; and as soon as reasonably practicable after she had so far recovered as to be able to attend to business, she instituted this suit, and was guilty of no loches in bringing or prosecuting the same.</p> <p>On accounting to February 23, 1898, there has accrued as simple interest at six per cent upon the portions of the trust fund commingled with the estate of Phillips from the several dates of such commingling the sum of $1,147.66, and the total amount of the trust fund, its accumulations of income and interest, which the plaintiff is now entitled to recover, is $2,600.79.</p>

<p>Contract, for breach of a written agreement. 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 plaintiff, in the years 1896 and 1897, owned and operated a drop forge plant in Worcester, doing business under the name and style of John C. Speirs and Company.</p> <p>The defendant, in the same years, owned and operated a drop forge plant in Chicago, Illinois.</p> <p>On March 24, 1896, the plaintiff and the defendant executed the following agreement:</p> <p>“ This agreement made and entered into this twenty-fourth (24th) day of March, A. D. 1896, by and between the Union Drop Forge Company of Chicago (an Illinois corporation), party of the first part, and John C. Speirs & Company, of the City of Worcester, State of Massachusetts, party of the second part, Witnesseth:</p> <p>“ 1. That the said first party is desirous of employing, and does hereby employ said second party to produce certain drop forgings at his drop forge plant and shop in the City of Worcester, Massachusetts, for and during the period beginning with the first day of June, 1896, and ending with the thirty-first day of May, 1897.</p> <p>“ 2. The said party of the second part hereby agrees to, and does hereby accept said employment, and agrees to give during said period, to the said first party, the full and entire use of his said plant and shop, and to furnish all machinery, tools and implements at their own expense, which shall be required for the purposes of producing said forgings (excepting one drop hammer which said second party desires to reserve for their own use for forging wrench forgings only), and to furnish at actual cost any and all dies required for above forgings.</p> <p>“ 3. The said first party agrees to furnish all of the steel or other material for the manufacture and product of said drop forgings, which said steel and the manufactured product therefrom, and all scrap which shall be produced'by said forging, shall be and remain at all times the property of the said first party.</p> <p>“4. The forgings so produced and manufactured shall be shipped by said second party F. O. B. Worcester, as the said first party shall from time to time direct; and the scrap which shall be produced from said forging shall be sold by said second party for and on account of the party of the first part, and the proceeds thereof shall be fully accounted for to it by them.</p> <p>“ 5. The prices to be paid for the manufacture of said drop forgings shall be determined from time to time by the mutual agreement of the parties hereto.</p> <p>“ 6. The said party of the second part shall render monthly statements of account to the said party of the first part, which shall remit and pay the amount of the same on or before the tenth (10th) of the succeeding month.</p> <p>“ In witness whereof the said party of the first part has caused this instrument to be executed by its president, and attested by its secretary under its corporate seal, and the said second party have hereunto set their hands and seals.</p> <p>“Attest: William Gr. Holbrook, Secretary. Union Drop Forge Company, by Francis W. Holbrook, President. J. C. Speirs & Co., by John C. Speirs.” (Seal.)</p> <p>On June 1, 1896, the plaintiff’s entire plant and shop and all his machinery, tools, and implements necessary for producing forgings, except one drop hammer, which the plaintiff reserved for his own use for forging wrench forgings, as stated in the agreement, were ready to produce forgings for the defendant under the agreement, and the plaintiff notified the defendant of that fact.</p> <p>About April 1, 1896, the defendant met the plaintiff and agreed upon prices to be paid for the manufacture of certain kinds of drop forgings, which might be manufactured by the plaintiff for the defendant under the agreement.</p> <p>The plaintiff was at all times ready and willing to furnish at actual cost any and all dies that might be required for the forgings manufactured under the agreement.</p> <p>Between June 1, 1896, and October 13, 1896, the plaintiff several times asked the defendant to furnish him work, and was at all times willing to perform work under the agreement for the defendant, but the defendant furnished no work, and on October 13, 1896, in a letter to the plaintiff the defendant wrote as follows: "</p> <p>“ In the terribly disturbed condition of finance, and everything else in the country, we have made no effort to get work; and yet we have had. executed contracts' in our hands, some of them for two months, without any specifications to • execute. The fact is, even our best • western manufacturers have been at their wit’s end to know just what to do, or when to begin, and to what extent to employ their plants. But there seems to be a movement of the waters indicating considerable activity in the near future, as soon as the election is over. At any rate, we are: getting ready for a rush of business, and -hope we will not be disappointed.” . ></p> <p>Thereupon, on November 4, 1896, the plaintiff-.'notified the defendant that he would hold the "defendant responsible under the agreement for his damages by reason of" the defendant’s alleged breach -thereof, and the plaintiff immediately went into the market and attempted to get work for "his shop from other parties than the defendant.</p> <p>The case was. argued at the bar in October, 1898, and after-wards was submitted on briefs to all the justices.</p>

<p>Personal Injuries — Defective Way—Presence of Ice on Depression in Sidewalk — Statute — Liability of City.</p> <p>Under St. 1896, e. 540, whenever ice or snow is the sole proximate cause of an accident to a traveller on a highway in a city, there is no liability on the part of the city, but where, at the time of the accident, there is any other defect to which as a proximate cause the accident is in part attributable, there may be a liability notwithstanding the fact that it also may be attributable in part to ice or snow.</p> <p>If a person is injured by falling upon a brick sidewalk having in its surface several depressions covered with ice, and varying from one half of an inch to two inches in depth, caused by some of the bricks being depressed and some being elevated, but there being no sharp corners, and the surface of the depressions being smooth, the jury, in an action for the injury, will not be warranted in finding that the way when bare was not reasonably safe and convenient for public travel.</p>

Tort, for personal injuries occasioned to the plaintiff by an alleged defect in a highway in the defendant city.

<p>Appeal, by the administrator of the estate of Jennie M. Brown, from a decree of the Probate Court, disallowing certain items in his account. Hearing before Barker, J., who affirmed the decree, and the appellant appealed to the full court. The facts appear in the opinion.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, § 1, cl. 2, for personal injuries, alleged to have been caused by the negligence of the defendant’s superintendent. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that the defendant operated a factory in Brighton for the purpose of making fertilizer and animal meal, so called. These products are made from bone, rock, and refuse from the slaughter houses. During the process of manufacture the material, after having been in part ground to the consistency of flour or meal, and mixed in certain proportions, is taken from the ground floor of the building to the top floor, by means of a chain and bucket elevator. This elevator consisted of an endless chain about four inches wide, to which were affixed at intervals of about three feet iron buckets which were about twelve inches long, five inches across the top, and five inches deep. This chain passed over a drum on the top floor, and under a drum set just under the ground floor. It was operated by a shaft on the top floor, which was moved by the usual and common arrangement of a belt with loose and tight pulleys, and a shipping-rod or handle by means of which the belt was thrown from one pulley to the other, all of which apparatus for operating and controlling the elevator was on the top floor. There was a bell on the top floor connected with the ground floor, by which signals were given from the ground to the top floor, two bells being the signal for starting and one bell for stopping, and there was also a bell on the ground floor by which signals could be given from the top floor when, for any reason, those at work at the top wished to have the supply of material on the elevator cease.</p> <p>The elevator itself passed from the bottom to the top floors through the intermediate floors in an almost vertical direction, and throughout the whole distance it was enclosed in a box or well about four feet long by two feet and a half wide. On the ground floor was an opening in the elevator box or well near the floor, provided with a vertical slide controlled by a short handle or lever. The material, after being mixed, was piled against the elevator well, and by means of this hole and slide was allowed to run into the well and be caught by the buckets of the. elevator and carried up. When the elevator was being used a man was put at the pile of material to feed it and control the flow from the pile into the well, so that too much would not get in. It was a frequent occurrence for the material to clog about the elevator chain and buckets and dram and to stop the elevator, and in such cases the belt, by the stopping, would be thrown off the pulleys on the top floor, and would hang on the shafting, and it would be necessary to dig out the accumulated material from the pit about the drum at the bottom of the elevator, so as to free the buckets and chain. In order to do this more easily the section of the front of the elevator box in which was the slide could be taken off, and a similar portion on the back could also be taken off, so that the elevator box for its whole width and -for a height of about four feet could be opened in front and behind.</p> <p>The material being fed into the elevator was like a fine powder or dust which covered the premises and machinery, and was inflammable.</p> <p>The plaintiff testified that on January 9,1896, between one and two o’clock in the afternoon, he was sent to feed this elevator ; and that after doing so for about half an hour the elevator got clogged and stopped, and he had to take off the front of the elevator box and dig out the material, and as he was getting this off, one Sparrow, the defendant’s superintendent, came down and asked him what the trouble was; and further testified as follows: “ I told him the elevator was stopped; I got no bell and did n’t rightly know the cause. I don’t know whether he stayed there or whether he went away. I continued to dig her out, and in a short time after he came along there and asked me, ‘ Did you try the mill ? ’ I said ‘ Ho.’ I rose up to go and give the bell, as it was my usual custom. I saw a man standing in the direction of the bell, and I stooped down again, and at that time I heard the rattle of the buckets or chain, so I saw they were after trying the mill, and she would n’t go; I knew she could n’t. As soon as it stopped still I commenced to shovel again. I could n’t have been a second or two shovelling when the fore- • man came with a lantern around the corner of the mill, and he says, ‘ O’Reilly, take this lantern.’ I took the lantern. I then cleaned a place with my toe, and stood the lantern right down on the level of the floor between my legs; left it there and commenced to shovel again. I found the stuff stiff under the second bucket. I was shovelling with a short-handle shovel. From the level of the floor to the under bucket might be two feet, and this shovel caused me to stoop over like, and while I was in the act of clearing that bucket the elevator started. As the elevator started I heard somebody sing out, 6 Look out, there! ’ and the flash of fire and flame came around me the same. I knew no more. I lost the shovel. Either the lantern or the oil, I can’t account for which, struck me in the face,” and he received the injuries complained of. His evidence showed that the pile of material was five or six feet high.</p> <p>On cross-examination, he testified that at the time of the accident he had been in the employ of the defendant over three years, principally working on this elevator; that the clogging of the elevator was a very common thing; that it would be rare to have it run without getting clogged, and when it got clogged he had to clear it out, just as he was doing at the time of the accident; that when there wasn’t enough daylight he needed a lantern, and for convenience of using a lantern he had some time before driven a nail high enough so he could work comfortably under it without accident; that just before the explosion there was nothing to indicate that the machinery was moving or about to move; and that the machinery when in motion made a strong current of air about it.</p> <p>Timothy J. Lyons, a witness called by the plaintiff, testified that he was at work on the second floor when the elevator stopped; that he was told to go to the top floor and help put on the belt; that he did so, and then went down where the plaintiff was digging out, and was followed at once by Sparrow, the superintendent; that they stood together watching the plaintiff digging out; that the superintendent told him to give two bells to the man on the top floor to start the elevator, and he did so, and the elevator did not start; that a few moments later, after the plaintiff had dug out again, he told him to give two more bells, and he did so, but the elevator did not start; that, a few moments after, the superintendent again gave him orders to give two bells, which he did, and the explosion followed.</p> <p>On cross-examination, the witness testified that he was in this room about two minutes altogether before the explosion occurred; that there was not a minute between the three times he gave the signal; that he was five or six feet away from Sparrow and ten or twelve feet away from the plaintiff; that Sparrow was seven or eight feet away from the plaintiff and on the other side of the pile ; and that the witness was standing on .the pile.</p> <p>It appeared that immediately after the explosion the lantern was found in the pit at the bottom of the elevator well in one of the buckets; that it was upside down, and the chimney out of place; and that the wick was burning, but the lantern seemed to have no oil in it.</p> <p>A witness called by the defendant testified that when the elevator was started at any time after being cleared out it would not start suddenly, but it started gradually.</p> <p>There was evidence that when the signal was given to start the elevator the men on the top floor tried it by pulling on the belt with their hands to see if it was free to move, but that they were unable to do more than tighten the chain, and could not start the buckets moving. There was also evidence tending to show that the elevator could not have moved or started at the time of the accident on account of the condition of the pit about the lower drum and the material packed about the buckets. Except as above stated there was no evidence that the elevator did in fact start or move at the time of the accident. There was no evidence that a lantern had ever been used before in this place except when hung upon the nails above the floor.</p> <p>It was admitted that Sparrow was a person intrusted with superintendence, whose sole or principal duty was that of superintendence, and there was no evidence that there was any other such person. At the close of the evidence, the defendant asked the judge to rule that the plaintiff could not recover, and to direct a verdict for the defendant; but the judge refused so to do.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in January, 1899, and after-wards was submitted on briefs to all the justices.</p>

Trustee process. In the Superior Court, the trustee was discharged; and the plaintiff appealed to this court. The facts appear in the opinion.

<p>Personal Injuries by Contact with Wire charged with Electricity—License — Action.</p> <p>If a lineman employed by a telephone company is injured by contact with an uninsulated wire charged with electricity belonging to an electric lighting company, while upon the roof of a building, and intending to go upon an adjoining building, for the purpose of affixing a wire of the telephone company to a standard erected on the roof of that building by the electric lighting company, in an action against the latter company for his injury, it is not enough to show that the defendant had reasonable cause to expect that the plaintiff in the discharge of his duties would go, rightly or wrongly, upon roofs covered by its wires, but he is bound to show that the defendant had invited or licensed him to go where he was when he was injured.</p>

<p> Libel for Affirmation of Marriage. </p> <p>At a hearing on a libel brought under the provisions of Pub. Sts. c. 145, § 11, and St. 1895, c. 427, for the affirmation of a contract of marriage into which the libellant had entered with knowledge that within two years thereof a decree of divorce from a former wife had been granted against the libellee, it cannot be said that a request by the libellant for a ruling, “ as matter of law, that the said libel should be granted,” was improperly refused by the presiding judge.</p>

<p>Contract, by the administratrix of the estate of Henry G. Wood, to recover $5,000 upon a benefit certificate issued by the defendant to the intestate. At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1899, and after-wards was submitted on briefs to all the justices.</p>

<p> Validity of Contract between Corporation and Director. </p> <p>After services have been rendered by a director of a corporation under votes in which he took no part, and by which he was employed to settle claims against the corporation and was to be allowed a certain commission, a receiver of the corporation is not entitled, as matter of law, to avoid the contract under which they were rendered, it being found that all parties acted in good faith and that the contract was not improvident; and it is immaterial that the director bought up the claims and held them as security for the sums advanced by him.</p>

<p>Fire Insurance — Assessment in Mutual Company — Agency — Locus Contractus — Validity of Contract.</p> <p>This case, which was an action by a mutual insurance company to recover the amount of an assessment levied upon a policy holder, is governed by cases already decided between the same plaintiff and other defendants.</p>

<p>Marine Insurance — Re-insurance— Validity of Contract— Wager Policy.</p> <p>The re-insurance for a certain time and to a certain amount by one insurance company, of such marine risks as another insurance company has when the contract is entered into, or may take during the time that it is to run, is not void as a wager policy, but is a contract which the parties have the power to make.</p>

<p>Contract, for the breach of an agreement executed on October 1, 1895, by the defendants, doing business as Charles E. Hall and Company, as the parties of the first part, and by the plaintiff as the party of the second part, and containing the following provisions:</p> <p>“ That the parties of the first part hereby agree to employ the party of the second part for the term of ten (10) years from the date hereof, at a salary, and upon the terms and conditions hereinafter expressed; and in. consideration thereof the party of the second part hereby agrees to devote his entire time, labor, and ability to the management and conduct of the business carried on by the parties of the first part, in the manufacture and sale of soda water fountains.</p> <p>“ The party of the second part, under this agreement, will receive and obey all instructions given him from time to time by said Charles E. Hall and Company, in the management and conduct of said business; and will, upon the receipt of all money, checks, drafts, notes, and securities whatsoever, turn the same over to said Charles E. Hall and Company, or deposit the same in such Bank, or Banking Institution, as, from time to time, they shall designate.</p> <p>“ As compensation under this agreement, the parties of the first part will pay to the party of the second part, the sum of Two Thousand (2,000) Dollars per annum, in equal weekly instalments, provided, that in any year during the continuance of this agreement, there should be a net profit arising to the parties of the first part, out of said business, then there shall be paid to the said William H. Glynn additional compensation for his services rendered under this agreement, a sum equal to ten (10) per cent of said net profits; provided, further, that said sum so paid as additional compensation, shall not exceed the sum of Two Thousand (2,000) Dollars.</p> <p>“ Should the business, so managed and conducted by the party of the second part, not be successful, then the parties of the first part may determine to give up and discontinue said business at any time; and upon so doing, agree to pay, and the party of the second part agrees to receive, the sum of Fifteen Hundred (1,500) Dollars per annum, payable in equal weekly instalments, for the remaining part of the ten (10) years covered by this agreement.”</p> <p>At the trial in the Superior Court, before Bell. J., the jury answered certain questions submitted to them, and, by direction of the judge, returned a verdict for the plaintiff in the sum of $115.40 ; and he alleged exceptions. The facts material to the point decided appear in the opinion.</p>

<p>Wagering Contract — Intention not to perform — Evidence.</p> <p>At the trial of an action against a member of the Boston Stock Exchange under St. 1890, c. 437, relative to wagering contracts in securities and commodities, evidence of a rule of the exchange prohibiting fictitious sales offered upon the issue of the defendant’s reasonable cause to believe that the plaintiff had no actual intention of performing his contract, is inadmissible if it does not appear that the plaintiff knew of the rule.</p> <p>At the trial of an action under St. 1890, c. 437, relative to wagering contracts in securities and commodities, to recover the value of stock deposited with the defendant, a broker, as collateral security on account of the agent of the plaintiff, who, as such agent, bought and sold stock on margin, with no intention on the part of either himself or the plaintiff of performing the contract of purchase or sale by the actual receipt or delivery of the stock, the judge properly ruled that the plaintiff would be entitled to recover, if he proved that neither he nor his agent intended to perform the contract by the actual receipt and delivery of the stock and the payment of the price, and that the defendant had reasonable cause to believe that no intention to actually perform existed, but that he could not recover unless he proved both these facts, nor if either he or his agent intended such performance to be made by either of them, or by the defendant as the agent of either of them; and that if the plaintiff was entitled to recover, the measure of damage would be the value of the stock when demand for it was made.</p>

<p>Contract for an alleged breach of an agreement to deliver to the plaintiff one hundred thousand shares of stock of the Rawhide Gold Mining Company alleged to have been sold to the plaintiff by the defendants acting through their agent, one George M. Pinney. Trial in the Superior Court, before Blodgett, J., who ruled, upon the facts as stated and agreed by counsel, that the action could not be maintained, and directed a verdict for the defendants; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Indictment, against John H. Chance and Arthur Hagan, for the murder of Charles L. Russell, on April 4, 1898, at Boston. At the trial in the Superior Court, before Bishop and Stevens, JJ., the jury returned a verdict of guilty of murder in the second degree as to Chance, and of not guilty as to Hagan; and Chance alleged exceptions, which appear in the opinion.</p>

<p>Petition to prove Exceptions — Facts warranting Disallowance of whole Bill — Consideration of Conduct of Excepting Parly — Order of Court as to Procedure — Appeal — Disbarment of Attorney — Demurrer.</p> <p>Where a bill of exceptions as tendered is found to be full of errors and generally untrue, and the excepting party declines to amend it in accordance with proper suggestions of the judge, so that the latter has good reason to believe, and does believe, that the former does not desire or intend to make the bill conformable to the truth, it is not the duty of the judge, if it is possible to find in the bill any independent exception correctly stated, to search it out and allow it separately, but he properly may disallow the whole bill; nor in case of such disallowance has the excepting party a right, on a petition to prove the exceptions, to have the single exception separated from the rest of the bill and afterwards considered b)' the court.</p> <p>If the findings of a commissioner, to whom a petition to prove exceptions has been referred, show that one exception stated in the bill as tendered was wholly unfounded, and that another was unfairly stated, and was both preceded and followed by a false statement, the judge will be held to have been well warranted in deciding that the bill was not conformable to the truth, within the meaning of Pub. Sts. c. 153, § 8, and in disallowing it altogether; and the conduct of the party, who has tendered another bill of exceptions on another branch of the case, which is considered at the-same time with the first bill and which is full of errors and generally untrue, in declining to accept proper amendments suggested by the judge, might be considered in connection with the first bill.</p> <p>An order of the Superior Court, providing that all preliminary matters in a cause are to be heard on a day named, and that, unless cause is shown at that time why it should not be heard, the case is to be heard on its merits upon a subsequent day named, no reason appearing why the order was not entirely proper in matters of fact, affords no ground in law for an appeal.</p> <p>The charges, which are proved, that an attorney at law improperly appeared for both the plaintiff and the defendant in actions pending in court which involved the same issue, that he used a legal process in an abusive and oppressive manner, and that he incited, aided, and counselled another person in an attempt to bribe a member of a city council in matters pertaining to his official actions, warrant the disbarment of the attorney.</p> <p>Whether a demurrer to charges in a petition for the disbarment of an attorney at law was rightly filed or not, if the record shows that it was overruled without prejudice as to any question which might be raised by the respondent upon the hearing of the case on its merits, and it could not have been sustained, because the charges on proof of which he was disbarred constituted sufficient grounds for such disbarment, assuming that an appeal from the judgment on the merits opened questions of law on the order overruling the demurrer, no error of law appears of which the respondent can avail himself.</p>

<p>Contract, upon a policy of insurance against loss by fire. Trial in the Superior Court, before Dunbar, J., who directed the jury to return a verdict for the defendant, and reported the case for the consideration of this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1898, and after-wards was submitted on briefs to all the justices.</p>

Petition to the Probate Court for instructions as to the payment of a tax under St. 1891, c. 425. The court ruled that the property was subject to the payment of the tax, and the petitioner appealed. Hearing before Hammond, J., who, at the request of the petitioner, reserved the case upon the pleadings and an agreed statement of facts for the consideration of the full court. The facts appear in the opinion.

<p>Will — Termination of Trust— Gift Over to Children in Fee.</p> <p>A testator provided by will that on the decease of his widow the trust estate held for her benefit should be divided into two equal parts, the trustee, who was his son, to take the income of one moiety and to pay over the income of the other moiety to his daughter during life. “ And on the decease of either of my said son or daughter, then, and not till then, I give and devise the said moiety, the income of which is so given to him or to her for life, to their respective children in fee; but it is my will, and I direct that no division or partition of the moiety shall be made to and among my grandchildren until the youngest child shall reach the age of twenty-one years respectively, excepting, however, the income thereof.” Held, on the death of the son, that in the connection in which they occur the words “ then and not till then ” import that the gift over was not to take effect until his death, and that his children then living took.</p>

<p>Corporation— Trust—Construction of Agreement.</p> <p>A., who owned certain letters patent, and B. entered into a written agreement for the formation by B. of a corporation for the purchase of the patents and the development of the inventions, by which A. agreed to assign to B. certain shares of the stock “ to be held by the said B. in trust for the treasury purposes of the said corporation.” Then followed this clause: “ And the said A. further agrees to assign to himself and the said B. jointly one thousand shares of said stock, to be held by them under a joint trust for use and disposal as they may deem advisable for the general promotion of the interests of the corporation.” On the same day A. and B. executed a further agreement, providing “ that if at the end of three months from tile formation of the said joint trust no disposal of the stock held thereunder shall have been made by said joint trustees, the said joint trust shall be dissolved and said shares returned to said A., who shall forthwith assign three hundred of said shares to said B.” Held, upon a bill in equity to establish a trust as to the shares in question, that it could not be said, as matter of law, that on the face of the two agreements the corporation was a beneficiary as to such shares.</p>

Petition of Helen S. Clapp, the beneficiary named in a certificate of benefit membership, issued October 15, 1887, by the respondent to George S. Clapp, alleging that the claim of the petitioner, which had been reduced to a judgment, was a lien upon all the property, effects, and bills receivable of the association, with priority over all other indebtedness incurred after the date of the certificate, and that the funds of the association exceeded the amount of the…

<p>Bond — Mutual Mistake of Fact — Estoppel— Contract — Evidence.</p> <p>Where the recital as to the existence of buildings upon certain land in a bond conditional that the buildings “ shall be finished in a good and workmanlike manner,” is induced by a mutual mistake of facts without any fault or negligence on the part of the surety, the recital cannot operate by way of estoppel to give validity to the bond, and being untrue in fact, there is nothing left to which the condition of the bond can attach, and there is no binding contract; and in an action on the bond, the agent of the surety, which is a corporation, may testify that he would not have executed the bond if he had not believed the recital to he true, and evidence of what the principal said and did is competent for the purpose of showing the circumstances under which the surety signed the bond, and that the latter was misled and acted in good faith, as is also evidence of the agent of the surety as to what he relied upon in executing the bond.</p>

<p>Marine Insurance— Construction of Policy.</p> <p>In a policy of marine insurance providing for other insurance “ prior in date to this instrument,” and for insurance “ subsequent in date to this policy,” and that “ other insurance upon the premises aforesaid, of date the same day as this instrument, shall he deemed simultaneous herewith, and the said company shall not be liable for more than a ratable contribution in the proportion of the sum by them insured to the aggregate of such simultaneous insurance,” the words, “ of date the same day as this instrument," refer to the date when the instrument was executed, and not to the date when the risk attached.</p>

<p>Two actions OF tort. In the action against Maurice H. O’Connor the plaintiff sought to recover damages for adultery alleged to have been committed with his wife, and for the alienation of her affections; in the action against O’Connor and Merrill he sought to recover damages for an alleged unlawful conspiracy of the defendants to debauch the plaintiff’s wife and to induce her to commit adultery with the defendant O’Connor. Writs dated June 11, 1896.</p> <p>Trial in the Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence for the plaintiff tending to show that on one occasion in August, 1893, while the plaintiff, his wife, and the defendants, with others, were upon a camping trip in New Hampshire, the defendant O’Connor and the plaintiff’s wife were seen lying together at about half-past eight in the evening in a public street between the team travelled portion and the stone wall at the side, the plaintiff’s wife being clad in what was at first described as a night dress, but which was later explained to be an old wrapper or dress which she used as a night dress in- the tents, and called a night dress; that Mrs. Evans at that time spoke to the witness who testified to seeing her there, and said, “ I went in and changed my clothes and put on my night dress, and heard the music, and thought I would come down and hear it ” ; and that the music referred to was a piano which was being played in a house one hundred or one hundred and fifty yards distant from the point where she and O’Connor were seen together in the road. There was also evidence tending to prove that in the summer of 1894, and again in the summer of 1895, Mrs. Evans and O’Connor registered at a summer hotel in New Hampshire as “ M. H. Copeland and wife,” and on both occasions occupied the same sleeping-room together for several days.</p> <p>The wife of the plaintiff, called as a witness for the defence, was asked as to her relations with O’Connor in 1893, and upon being instructed by the judge that she was not obliged to answer if her answer would tend to criminate her, she replied, “ I would rather not answer questions on 1894 and 1895, but I would like to prove myself innocent in the year 1893.” She was then instructed that if she testified as to matters in 1893, she could be cross-examined fully as to matters occurring in 1894 and 1895, and thereupon declined to testify.</p> <p>There was further evidence for the plaintiff tending to show that in 1895 the defendant Merrill, who was a brother of the plaintiff’s wife, was at the same hotel and at the same time as Mrs. Evans and O’Connor; that in June of the same year Merrill met O’Connor at the Union Station in Boston, conducted him to the waiting-room, where Mrs. Evans was seated, and left them there together, after which they went out into the street together and disappeared; that in a conversation between the plaintiff and Merrill the latter, in reply to a question whether there was any truth in the story that Mrs. Evans and O’Connor had been at a hotel in New Hampshire together, said that he did not think it was so, and the talk was a lot of idle gossip, and promised to keep Mrs. Evans away from O’Connor, and in a subsequent conversation between the plaintiff, his wife, and Merrill, after the refusal of Mrs. Evans to return to live with the plaintiff or to see him alone,'the plaintiff said: “ Well, there must be something in it between you and Will Merrill, or you would allow me to see you alone,” to which Merrill replied: “ If you dare me in this manner, Charles Evans, I will pound you.” This was all the material evidence in the case. During the trial the plaintiff discontinued the second action as to O’Connor.</p> <p>The defendant Merrill requested the judge to instruct the jury, 1. That the plaintiff is not entitled to maintain the action against him. 2. That to entitle the plaintiff to maintain his action against him he must prove that Merrill induced Mrs. Evans to commit adultery with O’Connor, or that he alienated or destroyed her affection for the plaintiff; 3. That the evidence does not warrant a finding that Merrill induced Mrs. Evans to commit adultery with O’Connor; 4. That the evidence does not warrant a finding that Merrill alienated or destroyed the affections of Mrs. Evans for the plaintiff; 5. That if O’Connor and Mrs. Evans went to New Hampshire in 1895 for the purpose of committing adultery, and if neither of them induced Merrill to accompany them, he would not be liable for so doing, even if his presence and conduct encouraged O’Connor in their adulterous intercourse if he did not induce Mrs. Evans to commit adultery, and did not alienate and destroy her affections for her husband; 6. That if Merrill merely knew and assented to adultery between Mrs. Evans and O’Connor he would not be liable; 7. That Merrill is not liable unless he or O’Connor induced Mrs. Evans to commit adultery with O’Con-nor, and that if she induced O’Connor to commit adultery, the defendant Merrill is not liable, although he assisted them in arranging to commit the crime; 8. That the evidence does not warrant a finding that O’Connor induced Mrs. Evans to commit adultery, or that she did not induce him so to do.</p> <p>The judge gave instructions to the jury in accordance with the second, fifth, and sixth requests, and refused to give the first, third, fourth, seventh, and eighth, except so far as they were contained in his further instructions to the jury. He further instructed the jury that if certain persons are found acting concurrently, their concurrent action creates a presumption of a concurrence of sentiment, and if upon the evidence the jury were satisfied that O’Connor and Merrill were acting in concurrence to induce Mrs. Evans to commit adultery with O’Connor, and if the natural, usual, and probable consequence of their concurrent action resulted in the commission of such adultery, it would be competent to infer that it was their common purpose and design to accomplish that result; that if the jury were satisfied of the existence of a common purpose, acts and declarations of either defendant designed to promote the common purpose, although done or said in the absence of the other, would be competent evidence against the other; that the basis of these actions was the alienation of the affections of the plaintiff’s wife, and that if Merrill induced her to commit adultery with O’Connor, it was an invasion of the plaintiff’s conjugal rights for which he would' be liable, as well as for the alienation of her affections if that was the natural, usual, and probable consequence of such adultery, but that if Mrs. Evans solicited or induced O'Connor to have intercourse with her, that fact should be considered on the question of damages in mitigation thereof.</p> <p>The jury returned a verdict for the plaintiff in each case; and the defendants alleged exceptions.</p>

<p>Bill in equity, filed January 15,1888, in the Superior Court, to remove a cloud upon the title to land in Lynn. Hearing before Lilley, J., who, at the request of the parties, reported the ease for the determination of this court. The facts appear in the opinion.</p>

Bill in equity, filed May 3, 1898, for the specific performance of an agreement to purchase land.

Bill in equity, filed June 3,1898, in the Superior Court, to restrain the defendant from prosecuting a petition filed May 23, 1898, for an assessment of damages for the taking by the plaintiff, under St. 1895, c. 384, of certain property of the defendant. Hearing before Graslcill, J., who entered a decree for the plaintiff ; and, the defendant having appealed therefrom, reported the case for the determination of this court. The facts appear in the opinion.

<p>Writ of entry, to recover a parcel of land in Worcester. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the demandant by Gashill, J., to this court, on appeal, upon agreed facts, the nature of which appears in the opinion.</p>

<p>Tout, for the alleged alienation of the affections of William Neville, the plaintiff’s husband. At the trial in the Superior • Court, before Braley, J., the defendant requested a ruling that “ on the pleadings, as matter of law, this action for the enticement of the plaintiff’s husband by the defendant cannot be maintained.” The judge refused so to rule.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Contract, against the surety, upon a poor debtor’s recognizance. 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 judgment debtor, who resided in Brookline, in the county of Norfolk, was arrested in Boston in Suffolk county by a constable, on a pluries execution. This execution was issued in an action in which the damages were laid at $500. The original execution issued for $338.62. The amount of the original execution appeared on the face of the pluries, together with a credit of $61. By the pluries execution the officer was directed to “ commit unto our gaol in Dedham or unto any gaol in your precinct in said county aforesaid” [Norfolk], The debtor recognized, with the defendant as surety, to surrender himself for examination within thirty days, before “ some court of record, or police, district, or municipal court.” Within this time he surrendered himself before the police court of Brookline, and the oath for the relief of poor debtors was administered to him.</p>

<p>Tort, for personal injuries. Trial in the Superior Court, before Dewey, J., who reported the case for the determination of this court, in substance as follows.</p> <p>On April 25, 1828, the owners in common of a way then called B Street and now called Byron Street in Boston and its adjacent territory made partition of their lands by an indenture duly recorded, which indenture contained a covenant providing that Byron Street should be forever reserved and kept open for a public street, “ and ceded to the city government as such whenever they will accept the same.” The city council of Boston has never passed any vote or order with reference to Byron Street, except an order passed on September 27, 1847, releasing the right to extend it, and the city has never made any repairs thereon. Signs bearing the words, “ Private way, dangerous passing,” were posted by the city more than thirty years ago on the corner houses on the sides facing upon the street and at each end thereof, and they remained there at the time of the accident to the plaintiff. Byron Street runs east and west, parallel to and next north of Beacon Street, and at the time of the accident connected two public streets running at right angles to it, named Brimmer Street and River Street. On both sides of Byron Street sidewalks extend from Brimmer Street to River Street. The south sidewalk, nearest Beacon Street, is brick throughout its length and adjoins the back yards and ells of houses which face Beacon Street, there being no houses on that side which face Byron Street. The character of the buildings on the north side varies, that is, next to River Street are three dwelling-houses facing Byron Street; next to Brimmer Street is a carriage factory, and between the factory and the dwelling-houses the space is occupied by private stables. The defendants occupied the stable next west of the three dwelling-houses. The sidewalk on this, the north side of Byron Street, consisted of an ordinary brick walk in front of the dwelling-houses, and a plank walk in front of the carriage factory, while in front of each of the stables it was made up of stone flagging, a cobbled driveway, and planks set into the walk which were coverings for manure pits so called; and these pits extended out under the sidewalk from the several stables. The sidewalks on both sides of the street were properly curbed. The defendants occupied as a stable the premises on the north side No. 4 Byron Street, including one of these manure pits, under a written lease of the entire premises. Their lessors obtained title by mesne conveyances from and under the indenture of partition, and held the same subject to the covenant therein contained concerning Byron Street.</p> <p>The plaintiff, wishing to consult the former owner of a stable on Byron Street, entered the street from River Street. She crossed the street diagonally to the stable of the defendants, in the door of which stood a man, and stepping upon the sidewalk inquired the whereabouts of the person she was seeking. She was told that he had moved his stable to an adjoining street further north. She thereupon turned to leave Byron Street, using the sidewalk upon which she was standing, and had advanced only a few steps when she stepped upon a plank over the defendants’ manure pit, and was thrown into the same, receiving the injuries complained of. There was nothing in the outward appearance of the plank to indicate danger, or that it was misplaced. In 1838, the north side of Byron Street was occupied by stables, there were sidewalks on each side, and the street was in common use by the public generally. Since 1838 the conditions have not changed to any material extent, and the street has been used at will not only by people having business there, but by others passing from Brimmer Street to River Street in the same way as other formally laid out public streets in that vicinity.</p> <p>The so-called manure pit into which the plaintiff fell was included in the premises leased to the defendants, and was used by them in connection with their stable, which it adjoined. The pit had been used on the day of and prior to the accident for the purpose of removing the accumulations therein. After the removal of the manure the planks were laid over the opening and left in the condition in which they were at the time of the accident. The pit was five feet in depth, nearly as wide as the sidewalk, and six feet long. It was covered with detached planks, running lengthwise with the street, which were supported in the centre by a beam beneath, at right angles with the planks, and at each end by a stone shelf or rabbet, so cut that the top surface of the planks when in place was level with the surface of the sidewalk. The opening of the pit was longer on its street side than on its stable side, and the outside plank was therefore the longest and the inside plank the shortest. At the time of the accident the planks had been misplaced, and the plaintiff stepped upon the end of a plank which was supported only by the rabbet at the end farthest from her and by the beam in the centre, the farther end of the plank flying up and striking her violently as she fell into the pit.</p> <p>At the request of the defendants, the judge ruled that, upon the whole evidence, the plaintiff was not entitled to recover; and directed the jury to return a verdict for the defendants.</p> <p>If the ruling was right, the verdict was to stand; otherwise a new trial was to be ordered.</p> <p>The case was argued at the bar in January, 1899, and afterwards was submitted on briefs to all the justices except Loving, J.</p>

<p>Tort, for personal injuries sustained by the plaintiff while in the defendant’s employ as a fireman on a locomotive engine, through the alleged negligence of the defendant. At the trial in the Superior Court, before Bishop, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Two ACTIONS OF TORT, the first being for personal injuries sustained by the plaintiff, and the second for causing the death of the plaintiff’s husband, Joseph Reif, through the fall of a derrick, while in the employ of the defendants. At the trial of the cases together in the Superior Court, before Fessenden, J., the jury returned a verdict for the plaintiff in each case; and the defendants alleged exceptions, which appear in the opinion.</p>

<p>Appeal in Criminal Case — Error in Order for Recognizance — Arrest of Judgment.</p> <p>If a person, who is convicted of an offence before a District Court and appeals to the Superior Court, is ordered to recognize with sureties for his appearance before that court at a sitting subsequent to the one at which the appeal by statute is to be entered, and he does so recognize, such error in the order of the court or in the recognizance is no ground for a motion in arrest of judgment.</p>

<p>Draft — Prevalence of Law Merchant in Turkey in Asia — Presumption — Collateral Contract.</p> <p>In an action to recover the equivalent of money paid by the plaintiff to the defendant for a draft in favor of a third person payable in Turkey in Asia, the plain-, tiff’s evidence being that it was agreed orally at the time when the draft was, purchased, that if it was not paid the money should be returned, and it appear-, ing that the drawee refused to pay, but the draft was not protested, there is no presumption that in that country the custom as to protest is the same as it is here, as bearing on the probable construction of the collateral contract relied on by the plaintiff.</p>

<p>Bill in equity, filed October 30, 1898, in the Superior Court, to restrain the defendants from obstructing an alleged right of way over their land in Hull. At the hearing a decree was entered for the plaintiff; and the defendants appealed to this court. The facts appear in the opinion.</p>

<p>Petition in equity, filed December 30,1897, in the Superior Court, against the Commonwealth, S. Casparis, and George H. Smith and Theron H. Burden, copartners as Smith and Burden, to enforce payment of a claim for materials furnished by the petitioner to Smith and Burden, contractors under Casparis, who had a contract with the Metropolitan Water Board for the construction of an aqueduct as a part of the metropolitan water system. The Commonwealth and Casparis demurred to the petition. At the hearing a- decree was entered sustaining the demurrers and dismissing the petitionand the petitioner appealed to this court. The facts appear in the opinion.</p> <p>The ease was argued at the bar in December, 1898, and after-wards was submitted on briefs to all the justices.</p>

<p>Wrongful Conversion by Partner of Asset of Firm — Suit by Copartner against other Persons for Participation in Conversion — Equity.</p> <p>In this bill in equity brought by one member of a firm to recover damages for the wrongful appropriation of partnership property by another member of the firm, it was held, upon demurrer by two of the defendants, not members of the firm, that the allegations of the bill were insufficient to make them answerable in damages.</p>

<p>Bond to dissolve Attachment — '■'■Final Judgment ” — Statute—Rule of United States Courts — Supersedeas Bond — Entry of Judgment nunc pro tune — Allowance of Amendment — Filing of Bond in Appellate Court.</p> <p>If a judgment entered for the plaintiff in an action in the United States Circuit Court is set aside, upon a writ of error, by the Circuit Court of Appeals, and subsequently another judgment for the plaintiff is entered in the former court, the last named judgment is the one intended in a bond given to dissolve an attachment made on the original writ and conditional for the payment of the “final judgment” recovered in the action, and by the provisions of Pub. Sts. c. 161.</p> <p>Under Rule 29 of the Supreme Court of the United States, and U. S. Rev. Sts. § 1000, a supersedeas bond taken upon the allowance of a writ of error to a Circuit Court of the United States by a Circuit Court of Appeals, when the judgment for the defendant in error is for the recovery of money and is secured by an attachment and by a bond to dissolve an attachment, both of which are security for any final judgment to be rendered in the original action, is not a substitute for the attachment or for the previous bond, and does not dissolve the attachment or discharge the bond.</p> <p>It is no objection to the enforcement of a bond given to dissolve an attachment and conditioned for the payment, within thirty days thereafter, of the final judgment recovered in the action, that the judgment was entered as of a previous date.</p> <p>The defence, that a bond given to dissolve an attachment made in an action brought in the United States Circuit Court has been discharged by the allowance of amendments to the declaration, cannot prevail in an action upon the bond, if it appears to this court from an inspection of the declaration and the several amendments that they were all for the cause of action relied on by the plaintiff when the action was commenced.</p> <p>That a bond to dissolve an attachment made in an action begun in the United States Circuit Court, given while a writ of error was pending in the Circuit Court of Appeals, was filed in the latter court, and not in the former, is no defence to an action upon the bond.</p>

<p>Railroad— Construction of Agreement — Equity — Specific Performance.</p> <p>.Pursuant to an agreement executed by A. and by a railroad corporation, a spur track was built at one of its stations in a city, and scales, sheds, a platform, and weighing room, all described as temporary, for use by A. in carrying on a coal business, were erected on the premises of the corporation. The agreement further provided that, when the corporation found it necessary for the accommodation of its business to remove the spur track, no claim for damages or loss by reason of its removal should be made by A. Within a few days after the agreement was entered into, a statute was passed, relating to grade crossings of the corporation in the city, and the corporation proceeded to change the grade, as ordered by the Superior Court, and to make other improvements at the station in question. Held, upon a bill in equity by A. against the corporation, that he was not entitled to specific performance of the agreement.</p>

<p>Declaration — Action by one Woman against another for Alienation of Husband’s Affections.</p> <p>The declaration, in an action by one woman against another, alleged that the defendant ingratiated herself into the affections of the plaintiff’s husband, caused him to frequent her society, to give her large sums of money, to execute to her various conveyances, to make large expenditures of money on her behalf, and to transfer to her the courtesy and affection previously bestowed upon the plaintiff. It was then charged that by reason of these unlawful acts the husband ceased to have affection for the plaintiff, denied her suitable support, and treated her cruelly; that his affections for her were wholly alienated, that her home was broken up, and that he refused to cohabit with her or perform any of tile duties due from him as her husband. It was further alleged that by reason of these matters the plaintiff liad suffered great pain and had lost her home and the society and comfort of her husband. Held, on demurrer, that the declaration set forth no cause of action.</p>

<p>Indictment for embezzlement. After a reversal of the defendant’s sentence upon a writ of error, reported 172 Mass. 264, the case was remanded to the Superior Court, and he was resentenced in that court by Sherman, J., who allowed exceptions, which appear in the opinion.</p>

<p>Insolvent Debtor — Declaration of Trust — Husband and Wife — Validity of Conveyance as to Creditors — Declarations as to Title — Estoppel.</p> <p>A husband conveyed to his wife without consideration the dwelling-house in which they lived and subsequently a store, and at the time of the last conveyance she wrote and signed a statement that he “ transferred a mortgage to me, also the store ... he deeded to me, both to be held in trust for him by me just the same as I hold this house we are now living in, to be held for him in trust by me. He can sell it or do just the same with it as before, as it is his just the same.” This statement was taken by him and placed with other papers in a deposit vault box, to which both had access. She also wrote to her mother that “ yesterday he deeded the store to me to hold in trust for him, only it does not make it any the more mine than it did before, you understand, for he can take it back or sell it at his pleasure same as before. ... In fact, it is just the same as he holds the house, only deeded to me to hold for him.” Held, that these statements in the two writings constituted a valid and sufficient declaration of trust on the part of the wife.</p> <p>In view of a finding that, at the time when a husband conveyed real estate to his wife without consideration, if he “ could have realized a fair market value on the stocks which were then being carried for him, he could have paid his debts in full, without resorting to or realizing upon the said real estate, although in fact he did not so realize upon them,” it cannot be said that the conveyance was invalid as regarded existing creditors, or in fraud of the insolvent laws.</p> <p>A finding that, at the time when a husband conveyed real estate to his wife without consideration, “he bad been losing heavily and was troubled over his financial affairs, and that these conveyances were made by him with the actual purpose and intention of putting said real estate beyond the hazards and risks of the said business in which he was engaged, and to protect it from future creditors and to secure it for the benefit of himself, and that thereafter he continued in said business until all his property, except such interest, if any, as he had in said parcels of real estate, had been lost,” does not require or warrant the conclusion that the conveyances were fraudulent and void as to future creditors.</p> <p>To establish a fraudulent intent in a conveyance without consideration by a husband to his wife, it is not enough to show that he had a general purpose to secure the property from the hazards of future business and the claims of future creditors, but it must appear that at the time of the conveyance he had an actual intent to contract debts and a purpose to avoid the payment of them by the conveyance.</p> <p>Declarations made by a wife, as to her title to property which has been conveyed .to her by her husband, in his absence and without his knowledge or authority, cannot bind him.</p> <p>The facts that a husband, who had conveyed real estate to his wife without consideration, stated orally to two persons, one of whom was a creditor of hers and the other a tenant of the estate under a lease from her, that he had given the property to her, but made no reference to any trust, and that afterwards, when learning from her the extent of his wife’s indebtedness, acting under the advice of his counsel, he requested her to convey the estate to a third person, and no reference was made by him at this time to any declaration of trust by her, will not estop him, upon a bill in equity by the assignee in insolvency of his wife’s estate to recover the real estate, from setting up his right to the property under a trust.</p>

<p>■ Bill in equity, filed August 8, 1898, by the selectmen of Wilmington, under Pub. Sts. c. 112, § 136, to enforce a decree of the county commissioners, ordering the defendant to make certain alterations in a highway over its railroad in that town. The defendant demurred to the bill for want of equity. Hearing before Hammond, J., who, at the request of the parties, reserved the case for the consideration of the full court. If the demurrer was sustained, a final decree was to be entered dismissing the bill; otherwise, a decree was to be entered for the plaintiffs. The facts appear sufficiently in the opinion.</p>

<p>Waterworks — Eminent Domain — Validity of Talcing by Town of Water of Great Pond — Right of Public to continue Cutting of Ice on Pond — Equity.</p> <p>A statute authorized a town to take the water of a certain pond for the purpose of supplying itself and its inhabitants with water; provided that all such authority granted to the town should be vested in commissioners, who should be subject to such instructions as the town might impose by its vote; and required that a certificate signed by the commissioners describing the property taken should be filed in the registry of deeds. The town instructed the commissioners by Vote to take in behalf of the town “ any and all rights of way, water rights, water sources, and easements which may be necessary for the purposes of the town in carrying out the provisions ” of the statute, and also all necessary lands; and the town voted also to “ take the waters of ” the “ pond and its tributaries, and from springs and underground and surface waters adjacent thereto,” and authorized the commissioners “to take necessary steps and do all necessary acts thereto for and in behalf of the town.” The certificate filed by the commissioners, after reciting the acceptance of the statute by the town and the election of the commissioners, stated that the town “did vote to take and hold the waters ' of ” the “ pond . . . and the waters which flow into the same, and the springs and water sheds which supply the same, and the water rights and water sources connected therewith.” Held, that the taking was valid.</p> <p>A town, which by statute is granted the right to take the water of a great pond for the purpose of supplying itself and its inhabitants with water for the extinguishment of fires and for domestic and other purposes, cannot maintain a bill in equity to restrain an owner of land on the shores of the pond from cutting ice thereon, if it is not shown that the exercise of the public right so to cut ice is inconsistent with the purposes of the grant to the town.</p>

<p>Tort, by the assignee in insolvency of the estate of Mark H. Dann, for the conversion of certain personal property. Trial in the Superior Court, without a jury, before Hopkins, J., who refused certain rulings requested by the defendant, and found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Assessment of Tax — Remedy — Petition for Abatement.</p> <p>If a part of a tax assessed to a person upon his real estate is valid, although for the balance of the real estate assessed to him he is not taxable, the remedy is by petition for abatement and not by bill in equity.</p>

<p>Tort, for personal injuries sustained by the plaintiff through the alleged negligence of the defendants while in their employ. At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the plaintiff on the fourth count of the declaration, which was at common law; and the defendants alleged exceptions. The facts appear in the opinion.</p>

<p>Libel for divorce, on the grounds of cruel and abusive treatment and extreme cruelty between October 5,1894, and August 3,1897, inclusive. Trial in the Superior Court, before GfasJcill, J., who ordered a decree for the libellant, on the ground of cruel and abusive treatment; and the libellee alleged exceptions. The facts appear in the opinion.</p>

<p>Complaint, under Pub. Sts. c. 112, § 197, for a fraudulent evasion of the payment of fare on a street railway in Worcester. At the trial in the Superior Court, before Bond, J., the jury returned a verdict of guilty; and the defendant alleged exceptions. The facts appear in the opinion.</p>

Petition, to enforce a mechanic’s lien under Pub. Sts. c. 191. At the trial in the Superior Court, after the findings of the jury upon certain issues, Hopkins, J., found for the petitioner; and the respondent alleged exceptions. The facts appear in the opinion.

<p> Costs upon Petition for Damages caused by raising Grade of Way. </p> <p>If the selectmen of a town make no award upon a petition filed with them for damages caused by raising the grade of a highway on which land of the petitioner abuts, the petitioner, upon application for a jury under the provisions of Pub.</p> <p>Sts. c. 52, § 16, and the recovery of damages, is entitled to costs.</p>

<p>Contract, to recover a commission alleged to be due for negotiating an exchange of the defendant’s farm in Heath for a parcel of real estate in Greenfield. Trial in the Superior Court, without a jury, before Richardson, J., who found for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Bill in Equity to restrain Foreclosure — Failure to effect Sale of Land.</p> <p>A., the grantee of land under a deed, made and delivered on or about May 11,1896, gave a note, secured by a mortgage, for a portion of the purchase price, payable in instalments on November 1, annually, until paid, and B., the grantor, gave to C., a broker, in payment of a commission for his services in negotiating the sale of the land, a note, dated May 11, 1896, payable in instalments on November 1, annually, secured by a mortgage, and containing a provision that “if the sale of my farm to A. falls through before January 1st, 1897, then this note is to be void.” A. refused to pay the first instalment on his note, due November 1,1896, but B. paid C. the first instalment of his note, due at the same time, in April, 1897, at which time, as he testified, he hoped to get the money in arrears on A.’s note, and in May, 1897, A. having continued in possession under the deed and having paid nothing on the note, B. foreclosed his mortgage. Held, upon a bill in equity by B. to restrain C. from foreclosing his mortgage and collecting the note secured thereby, that the judge rightly refused to rule that the sale had fallen through, and that the bill was properly dismissed.</p>

<p>Contract — Warranty — Damages.</p> <p>If A. agrees to supply B. with all the “ common hard brick ” required in the construction of a building, knowing the use to which the brick is to be put, but not knowing the plans or details of the building, and the brick as delivered, many of which are rejected as soft, are inspected by B., whose superintendent knows that soft brick are being used in the walls of the building, and, without unreasonable difficulty on B.’s part, the soft brick can be thrown out, there is no implied warranty that the brick are reasonably fit for the use intended.</p> <p>In an action for the price of a quantity of brick delivered under a contract to furnish all tlie “common hard brick ” required in tlie construction of a building at a certain price per thousand, many of which were soft brick, but were used by the defendant, the plaintiff is entitled to recover for the latter the difference between their value and tlie contract price.</p>

<p>Fire Insurance — Breach of Contract to insure— Construction of Charier — Authority of Agent—Evidence.</p> <p>An insurance company, the charter of which authorizes it to “ make insurance against loss by Are,” and provides that its policies “ may be made with or without the common seal of said corporation, and shall be signed by the president and countersigned by the secretary of said corporation, and being so signed and executed, and the premiums thereon being paid, shall be obligatory on said corporation,” may make a preliminary contract to insure property to be consummated by executing and delivering a policy pursuant thereto.</p> <p>A person, who for many years has been held out by an insurance company as a general agent to negotiate contracts of insurance and agree upon all the terms of the contract, and for that purpose is furnished with policies executed in blank by the president and secretary of the company with authority to fill up and deliver the same to any person with whom he has made a contract, is authorized to make a preliminary contract to insure, binding upon the company, to be consummated by filling up and delivering a policy pursuant thereto.</p> <p>It is no objection to the admission in evidence of the deed under which the grantee claims title to property of which he is in possession when a contract to insure it is made, that it was not properly acknowledged.</p> <p>Conversations with the alleged agent of an insurance company at the time when a contract to insure property was made are admissible, in an action for breach of the contract, to show what the contract was, and it is within the discretion of the judge to admit them before proof of the agency; and a conversation after the loss, in which the plaintiff informed the agent of the loss and asked him for the policy, and the agent replied that he did not have the policy or any record of it, is also admissible.</p> <p>Where the first count of the declaration in an action, upon which the case was submitted to the jury, alleges an agreement to insure the plaintiff’s property, and the second count alleges that the property was insured by the defendant, no exception lies to the admission in evidence of a proof of loss, the receipt of which is admitted by the defendant, if the bill of exceptions does not show that, when the evidence was admitted, the plaintiff did not intend to rely upon the second count.</p> <p>The fact that a person acting as agent of an insurance company did not submit the risks taken by him to the company for its approval before he wrote and delivered the policies is admissible, in an action against the company for breach of a contract made by him to insure property, as bearing upon the nature of his authority.</p> <p>Private instructions given by an insurance company to its agent, and not communicated or known to a person with whom he makes a contract to insure property, are properly excluded in an action against the company for breach of the contract.</p> <p>If an agent of an insurance company makes a contract with the mortgagor of property to insure it, the policy to be made payable, as his interest may appear, to the mortgagee, who is intending, if necessary, to keep it insured himself and to pay for the insurance, conversations between him and the agent upon that subject are admissible in evidence in an action against the company for breach of the contract.</p>

<p>Tort, to recover the amount paid by the plaintiff upon a judgment obtained against it by one Elizabeth Chagnon in an action for personal injuries caused by a defect in a highway. Trial in the Superior Court, before Maynard, J., who directed the jury to return a verdict for the defendant; and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Labor on State Road — Evidence — Action — Independent Contractor.</p> <p>In an action for labor performed on a State road, no exception lies to the exclusion of certain sections of the contract between the defendant and the State Highway Commissioners, by which he agreed to save the Commonwealth harmless from various possible claims and not to sublet his contract.</p> <p>A person who works for a sub-contractor for the building of culverts on a State road cannot maintain an action against the contractor for his wages, there being no evidence of any promise other than such as arose from the plaintiff’s employment by the sub-contractor.</p>

Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of an employee of the water department of the defendant city. 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>Tort, for personal injuries, occasioned to the plaintiff by the alleged negligence of the defendant, while in its employ. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Services rendered — Evidence — Admissions — Corporation — Insolvency — Action.</p> <p>Admissions are evidence against the party making them, although they relate to the contents of a written paper or to a corporate vote.</p> <p>If tlie only election of a person as president of a corporation that appears in evidence was in a certain year, the fact that he continued to act two years later, coupled with his assuming to carry out a vote two years after that, giving authority to “ the president,” tends to show that he still held the office.</p> <p>The record of a special meeting of stockholders of a corporation, authorizing “ the president ” to file a petition in insolvency on behalf of the corporation, and the schedule of creditors filed with the petition, are admissible, in an action against the corporation for services, to show an admission that the plaintiff was a creditor for the amount claimed by him.</p> <p>In an action against a corporation for services as auditor, if it appears that three persons were chosen a committee of the stockholders to engage an accountant, no exception lies to the admission in evidence of a question as to the plaintiff’s talk with one member of the committee, in consequence of which he went to work, it appearing that shortly afterwards the plaintiff received similar direc-</p> <p>. tians from the other two members of the committee jointly.</p> <p>If, in an action against a corporation for services as auditor, the treasurer has testified in effect that, when the plaintiff presented his bill, he spoke of himself as if he were a creditor of B., who was one of a committee of stockholders appointed to engage an accountant, the plaintiff properly is allowed to testify that, on the occasion in question, the treasurer said that he was a little short of money, but hoped to be able to send a check in a few days.</p> <p>Where judgment in an action against a corporation is sought as a first step towards enforcing the directors’ liability, under Pub. Sts. c. 106, § 62, insolvency of the corporation and proof of the plaintiff’s claim do not affect his right to have judgment for the unpaid balance.</p> <p>In an action against a corporation for services rendered, the defendant is not entitled to a ruling that there is not sufficient evidence that the value of the services is the amount claimed, if there is evidence of the extent of the services and the plaintiff testifies, without objection, that they are worth that sum.</p>

<p>Personal Injuries — Escape of Gas from Pipe in Street into House — Negligence — Instructions — Evidence.</p> <p>In an action for personal injuries occasioned to the plaintiff by inhaling gas which escaped from the defendant’s pipe, there was evidence that the plaintiff went to bed at about eleven o’clock in the evening, and was found unconscious by people who broke into his house at about half-past six o’clock on the next evening ; that when he went to bed he noticed nothing unusual, and when he was taken out there was a strong odor of gas in the cellar and in the house; that he used no gas in the house, which was lighted with kerosene; that the street opposite the house was then dug up, and the defendant’s gas pipe running through it was found to be broken; and that there was a strong smell of gas in the street opposite the house before the plaintiff was discovered. The evidence in regard to the condition of the pipe was conflicting; and the defendant introduced evidence tending to show that, over two years before the accident, a sewer was constructed through this street at a depth considerably below the gas pipe, that the earth which was put back was not properly tamped, and that the break in the pipe was caused by the settling of the earth. Held, that there was evidence for the jury on the question whether the defendant was negligent in allowing gas to escape into the plaintiffs house for so long a time.</p> <p>At the trial of an action for personal injuries caused by inhaling gas which escaped into the plaintiff’s house from a broken pipe of the defendant in the street, the judge refused to instruct the jury that “ the breaking of the pipe is not, under the circumstances of this case, in itself evidence that the defendant was negligent,” but instructed them that “ if the plaintiff was suffocated with gas, and if the gas came from the broken pipe, that of itself would not justify you in finding that the defendant was negligent ”; and then submitted to them the question upon all the evidence whether there was negligence in having a broken pipe in that place. Held, that the defendant had no ground of exception.</p> <p>At the trial of an action for personal injuries caused by inhaling gas which escaped into the plaintiff’s house from a broken pipe of the defendant in the street, the judge refused to instruct the jury that “no burden rests on the defendant to show or explain the cause of the accident”; and instructed them as follows: “ If what happened is of such a kind and nature that the power of explanation is in the hands of the party against whom the case is brought, you have a right to say they ought to come forward and explain it, otherwise not. • That is, the burden of proof is upon the plaintiff to show that the fault lies on the part of the defendant, and unless that evidence is brought forward of such a kind and nature that the explanation of how it happened lies wholly within the knowledge of the defendant, then the defendant would not be called upon to explain.” Held, that the instruction was correct and sufficient.</p> <p>In an action for personal injuries caused by inhaling gas which escaped into til© plaintiff’s house from a broken pipe of the defendant in the street, the judge admitted the following evidence: 1. A question to a police officer, who found the plaintiff unconscious, “ Whether or not you know whether any repairs were made on any pipe except the main pipe ? ” 2. The evidence of a witness, who testified that, on the day before the accident, he noticed a strong odor of gas on the premises before the broken pipe was removed, but who, on cross-examination, could not state whether there had been any digging in the street, or not. 3. A question to the defendant’s superintendent, who had testified that he first went into the house on the evening when the plaintiff was discovered there, and found no gas escaping, “Did you find some afterwards, after that evening?” Held, that no error appeared.</p>

<p>Tort, for personal injuries. The declaration contained counts under the employers’ liability act, St. 1887, c. 270, alleging negligence of the defendant’s superintendent, and also a count at common law. After the former decision, reported 172 Mass. 331, the case was tried in the Superior Court, before Maynard, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff was employed by the defendant as a painter during the construction of a building in Worcester, and was injured by the fall of a staging in a large counting-room.</p> <p>The plaintiff testified to the following facts: He went to work on the morning of the accident at seven o’clock. He first went down into the paint shop and got paint. Afterwards he came up on the third floor, from which place he went on to the gallery round the counting-room in the building. This counting-room was on the second floor, and was about one hundred feet long by nearly fifty feet wide, and about thirty-five or forty feet high. He was accustomed to go upon the staging from the gallery below, which was eighteen or twenty feet from the floor, and was made of stucco. It was a rail gallery, which did not extend entirely around the room. The staging itself was an ordinary one, made out of uprights, ledger boards, and braces of all kinds. The uprights were held together by ledger boards. The planks used to walk on rested on the ledger boards and brackets, the latter being made of spruce, and nailed to the uprights. The braces composing these brackets were from three quarters of an inch to an inch and a half in thickness. The staging went all around the room. There were two different tiers of brackets.</p> <p>He had worked for the first time upon the staging during the week before he received his injury, priming and giving the walls the first coat. He went upon the staging on the day of the accident by order of one Douglass, who did not do anything but give orders. He was accustomed to receive orders from Douglass. The plaintiff had nothing to do with the staging itself, or the erection of it. When Douglass gave the order to go to work, the plaintiff was standing on the gallery. There were four or five other men on the gallery at the time. After receiving the order, the plaintiff got over the railing on to the plank where he was going to work. From the top bracket it was about eighteen or twenty feet to the floor. There was no one else on the plank with the plaintiff. Knight and Remilly were on the next plank. The planks were from ten to fourteen or sixteen feet long, and were eight or ten inches wide and two inches thick. . The plank that the plaintiff was on was an ordinary twelve or fourteen foot plank, and extended over and rested on the brackets. The other plank was above that plank. He went right where Douglass told him to go, near the gallery, on the right hand side of the upright, and about two feet from it. He began work by dusting the stucco work, and had been in this position about two minutes, when he found himself on the floor.</p> <p>On cross-examination, the plaintiff testified that Knight and Eemilly were not far away from him, and that all were within four or five feet of one another.</p> <p>Frank Douglass, called as a witness by the plaintiff, testified that he worked in March, 1897, for the defendant in the building in question; that he had no particular work, sometimes he directed, and sometimes he worked; that he painted walls or anything else that wanted painting; that when he was not painting" walls he was looking after the help, and giving them directions what to do; that sometimes he helped to build stagings; that he directed the plaintiff to go to work upon the staging in question; that the accident happened on Monday; that on the previous Saturday he had another man with him, and went up there to brace the top of the staging; that he had examined the staging and found that it was weak and swayed back and forth ; that about six weeks before the painters went to work to put on this coat of paint, he had been upon this staging with the same purpose in view, and found the staging firm ; that between these times a floor had been laid under the staging; that in laying the floor the uprights of the staging planks had to be moved to get the plank under it, there had been lots of braces and ledgers taken out of the . staging, and an upright had been cut off the staging; that there was a staging built in the main staircase, and the stagings were braced from one to the other; that the staging over the main staircase had been taken down before the day of the accident; that one Smith was present, directing the work of the staging; that he directed the carpenters and laid out the work for them; that the witness went upon the top of the staging when he made the examination, and found that the staging was weak and that it swayed; that he then went to one Stevens, who looked after the painters, and told him the .condition of the staging, and he told him to go to Smith; and .that the witness went to Smith and had some talk with him on the Saturday before the accident. The witness was then asked: “ What was the conversation with Smith ? ”</p> <p>Subject to the defendant’s exception, the witness answered as follows: “ I went to Mr. Smith and asked him to fix the staging. He wanted to know the matter with the staging. I told him it was weak. I told him it was not fit to go on. He wanted to know why not. I said, ‘ If you go on top, it will sway back and forth.’ He said it was just the same as before. I said, 1 No, you have since laid the floor.’ He said, ‘ Yes. And taken off the staging from the main staircase, which was braced from one to the other.’ He said, 6 Yes.’ I said, ‘ The staging ought to be fixed up; I calculate to go on Monday with fifteen or twenty men.’ He said it was just like it was before, and it was all right. Said it was just as good as it ever was. I said it was not. I don’t remember whether I spoke about the upright, but I told him he took the braces from one stage to the other, and laid the floor, which weakened the staging. But he insisted on the staging being all right to work on.”</p> <p>The examination of the witness was continued as follows: “ Q. Now, when you first went to work on the staging to clear up this matter, what part of the staging had been laid? A. What we call the top floor. — Q. It was the laying of that floor that necessitated the raising of these uprights? A. Yes, sir. — Q. Did Mr. Smith do anything in response to your request with reference to this staging? A. No, sir. — Q. Now, what did you do, if anything? A. I reported back to Mr. Stevens that Mr. Smith said the staging was all right. — Q. What did you do ? A. I went to brace the stage from the top. I took another» man with me. — Q. What did you do when you say you braced the stage? A. I nailed a piece upon the upright against the iron casing. — Q. What upright ? A. The upright of the stage. — Q. How many pieces did you nail. A. Well, I should judge half a dozen, perhaps more. — Q. Did you do anything at all with reference to this upright that had been cutoff? A. No, sir. — Q. Whereabouts was that upright cut ? A. It was, I should judge, six or eight feet from the floor. — Q. Whether or not there was anything underneath this upright, where it had been cut? A. No, sir. — Q. Whether or not you saw that on the Saturday before the day of the accident ? A. I do not remember whether I spoke to Mr. Smith about this upright being cut or not. — Q. How long before Saturday, to your best recollection, was it that you saw the upright had been cut? A. It might have been a week, or it might have been two. I noticed it was cut when I went through the room. — Q. Whether or not Mr. Smith was round there, after the upright had been cut? A. Yes.” The witness was then asked: “ What effect would the cutting of that upright have on the stage at that point ? ”</p> <p>Subject to the defendant’s exception, the witness answered: “ I should judge it would have the effect of weakening the staging.” The witness also testified that he saw the upright after the accident; that it was just the same as it was before, there was nothing under it where it had been cut off; that the bracket which was nailed to the upright where the plank ran was broken off; that he could not say how the bracket broke, but it broke both lengthwise and crosswise; and that Stevens did manual work, but he could not say how much.</p> <p>Subject to the defendant’s exception, the witness was asked the following question: “ Whether or not there was anybody else in the building that you looked to for orders ? ” To which he answered “No.”</p> <p>On cross-examination, the witness testified that on the Saturday in question it took him between two and three hours to fix up the staging; that he got material to fix the staging out in the yard; that after he "had braced it, it was fairly well braced, and did not sway from the top; and that there was not enough "swaying of the staging to prevent the men from working comfortably upon it.</p> <p>William Pike, called as a witness by the plaintiff, testified that he was working for the defendant on the day of the accident; that he received his orders from Douglass and Stevens; that Douglass directed the men what to do, and showed them what was to be done; that once in a while he did a little himself, but did not spend one third of the time, on an average, in doing manual work; that he went round and looked the stagings over and fixed them up, and fixed planks and got them ready.for the men to work on; that Stevens gave directions to Douglass, and also the rest of the painters; that he did very little manual work; that Smith gave orders and did not do any manual work; that the witness had first worked upon this staging two or three weeks prior to the accident; that on the day of the accident the witness went to work at seven o’clock, and got on the staging from the gallery at the third floor; that Douglass told the plaintiff to go to work on the staging; that the plaintiff went on the east side, and Knight and Remilly were on the same side; that the upright was cut off four or five feet from the floor; that the brackets that were broken were on the upright that was cut off; that the brackets were splintered lengthwise, and crosswise, too, next to the upright, and that a piece of the splinter was hanging on the nails next to it, as if it had ripped out.</p> <p>Edward Knight, called as a witness by the plaintiff, testified that he was on the staging when it fell, about four feet from the plaintiff, on a different plank; that he received his order to go upon the staging from Douglass; that at the time of the accident, the witness was dusting off the wood, getting ready to paint; that after the accident, he saw that two brackets were broken on the upright that was cut off; that when he got down there, the lower bracket was on the floor, and the upper bracket was hanging to the upright; that the lower bracket was broken lengthwise, close to the nail; that Stevens took charge of the painters, gave directions to Douglass, and gave directions to the men to do the work; that Stevens saw that the colors were mixed properly, and the witness did not think he did any manual labor; and that Smith gave orders to the carpenters, and did not do any manual labor.</p> <p>On cross-examination, the witness testified that he had seen Douglass, Smith, and Stevens working with their hands.</p> <p>At the conclusion of the plaintiff’s evidence, the defendant requested the judge to rule as follows:</p> <p>“ 1. There is no evidence to warrant a verdict for the plaintiff on any count in the declaration, and the verdict must be for the defendant. 2. The plaintiff cannot recover on the first count of his declaration. 3. If the jury find that the weight of the plaintiff and his fellow workmen, Knight and Remilly, caused the brackets to break, then the plaintiff cannot recover. 4. There is no evidence of any negligence on the part of either Smith or Douglass, for which the defendant is responsible. 5. If there was a defect in the staging, and that defect was the sole cause of the accident, then the plaintiff cannot recover.”</p> <p>The judge refused to give the rulings requested; and the defendant excepted. The plaintiff waived all the counts of his declaration, with the exception of the first count, and the case was allowed to go to the jury on that count, under the employers’ liability act.</p> <p>The judge instructed the jury, in part, as follows:</p> <p>“ If these two men were too heavy; and if you find it was negligent on their part to get together, if it was their negligence which caused the staging to break, the plaintiff cannot recover, because he must be in the exercise of due care. If it was not negligent for him to go on to that staging with the other men, then was it negligent on the part of Douglass to send them there, and that depends upon what Douglass knew or ought to have known. . . .</p> <p>“ There is one more thing I have been asked to suggest to you, and that is, that if there was any defect in the staging, and that was the sole cause of the accident, the plaintiff cannot recover. If there was any defect in the staging, and that defect caused the injury, and was not known to Douglass or Smith, and could not have been discovered by the exercise of ordinary care and prudence, there can be no recovery; but if that defect was known to them, or if, by the exercise of reasonable care and prudence on their part, they would have discovered it, and they were superintendents, then the plaintiff can recover. If, under these circumstances, they directed the workmen to go upon the stage, and the workmen did not know about it, then it would be negligence of the superintendents; otherwise, it would not.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Petition, under Pub. Sts. c. 52, § 15, to the Superior Court for a jury to assess damages caused by the board of public works in making repairs in the highway in front of the petitioner’s premises in North Adams.</p> <p>At the trial in the Superior Court, before Dewey, J., it appeared that the repairs, which were ordinary and not specific, raised the grade in front of the petitioner’s premises; that the petitioner duly made application to the mayor and the city council for an assessment of damages, but none were assessed; that no application was ever filed with the board of public works, and that the petitioner offered in evidence the original petitions or applications, and they were excluded on the ground that they should have been made to the board of public works. The judge dismissed the petition and directed a verdict for the respondent; and the petitioner alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff while at work in Turner’s Falls in the defendant town. Trial in the Superior Court,' before Bishop, J., who, at the close of the evidence and at the request of the defendant, ruled that the plaintiff was not entitled to recover; and the plaintiff alleged exceptions, which appear in the opinion.

<p>Tort, to recover for the death of the plaintiff’s intestate, Charles S. Knight, and for conscious suffering consequent upon injuries received while in the employ of the defendant. At the trial in the Superior Court, before Maynard, J., the case went to the jury upon the third and fourth counts of the declaration. The third count was under the St. of 1887, c. 270, § 1, cl. 2, as amended by the St. of 1892, c. 260, § 1, and was as follows: “ And the plaintiff says that her intestate was in the employ of the defendant; that by reason of the negligence of some person in the service of the defendant intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence, the plaintiff’s intestate, while in said employ and in the discharge of his duties in said employ, being at the time in the exercise of due care, was hurt and injured, and has suffered great pain of body and anguish of mind, and has since died as a result of said injury; that due notice of the time, place, and cause of said injury and death were given to the defendant; that said intestate left a widow, Susie L. Knight, and one minor child,-Knight, both of whom were dependent upon'the wages of said intestate for support.”</p> <p>The fourth count differs from the third only in alleging, under the St. of 1894, c. 499, that the injury and death were “ by reason of the negligence of some person in the service of the defendant, who at the time was acting as superintendent, with the authority and consent of the defendant, in the absence of the defendant’s superintendent,” instead of alleging the negligence of the superintendent, as in the previous count.</p> <p>The jury returned a verdict for the plaintiff in the sum of $3,250, and apportioned $2,250 to the administratrix, and $1,000 to the widow. The defendant alleged exceptions, which appear in the opinion.</p>

Contract, upon a policy of life insurance. Trial in the Superior Court, before Dewey, J., who, at the conclusion of the plaintiff’s case, ruled, at the request of the defendant, that the plaintiff could not maintain her action, and directed a verdict for the defendant. The plaintiff alleged exceptions, which appear in the opinion.

<p>Right of Way — Deed — Evidence.</p> <p>At the trial of an action for the obstruction of an alleged right of way it appeared that the plaintiff and the defendant purchased their respective premises, by auction, of the same grantor who had previously held the premises in common, and had used the space between the buildings as a way to the rear. Nothing was said in the deed to the defendant about the way, and the deed to the plaintiff was not offered in evidence. Held, that the grantor could not be asked if at the time of the auction and before the sale anything was said about the way as used by him, and, further, if at that time any inquiry was made as to the use of the way.</p>

<p>Bill in EQUITY, filed in the Superior Court, by the indorser of certain promissory notes made by the Haydenville Manufactoring Company and held by the First National Bank of Northampton, the First National Bank of Easthampton, and the First National Bank of Westfield, against John Mayher and George N. Robinson, assignees of the Haydenville Manufacturing Company under an assignment for the benefit of its creditors, and the said corporation, and to which the three banks were made parties defendant, to obtain payment of the plaintiff’s alleged proportionate share of the fund in the hands of the assignees in accordance with the terms of the assignment. Hearing before Bell, J., who entered a decree for the plaintiff; and the several banks alleged exceptions. The facts appear in the opinion.</p>

Information in equity, filed September 11, 1898, by the Attorney General, at the relation of the Museum of Fine Arts, to restrain the erection and maintenance of a building on Copley Square in Boston above the height of ninety feet prescribed by St. 1898, c. 452, entitled “ An Act relative to the height of buildings on and near Copley Square in the city of Boston.” A demurrer and pleas were filed by the defendants.

<p>Damages from Water flowing from one Estate to another — instructions— Care required of Defendant.</p> <p>In an action for damages occasioned by water flowing from the roof of the defendant’s stable into a gutter along the side of the stable and thence discharged upon the plaintiff’s land in large quantities through an aperture in the gutter, a ruling that the defendant was bound to use only ordinary care properly is refused.</p>

Contract, against James W. Longstreet and George Cutler, to recover for professional services as an attorney at law. Answer of the defendant Cutler: 1, a general denial;'2, a denial of partnership with the defendant Longstreet. The defendant Longstreet was defaulted. Trial against the defendant Cutler, in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.

<p>Tort, for the conversion of articles of household furniture. At the trial in the Superior Court, before Braley, J., the only evidence introduced was the report of the auditor, who found that the plaintiffs had sold certain furniture on a so called furniture lease to one Hopkins, who mortgaged it, or a large part of it, to the defendants, by whom, after a foreclosure of the mortgage, it was sold; and that the plaintiffs were entitled to recover.</p> <p>The defendants requested the judge to rule: 1, that the facts found and reported by the auditor, and upon which he based his conclusions, were not sufficient to authorize a verdict for the plaintiffs ; 2, that upon all the evidence in the case the verdict should be for the defendants.</p> <p>The judge declined so to rule.</p> <p>The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions.</p>

Bill in equity, filed October 4, 1897, against Charles W. Morse, Lola C. Sprague, and Martin Taylor, praying for the liquidation of the affairs of the Daggett Building Association, for an account,… Held: by a three fourths vote of all the stock of the association then outstanding. A certificate of that fact signed by two of the directors for the time being, under their seals and acknowledged and recorded in the Essex So. Dist.

Contract, upon a written agreement alleged to have been made by the defendant with the plaintiff. After the former decision, reported 171 Mass. 35*2, (Newton Rubber Works v. Graham,) the declaration was amended by the addition of new counts. The defendant demurred to the amended declaration, assigning various grounds of demurrer. In the Superior Court the demurrer was sustained, and judgment entered for the defendant; and the plaintiff appealed to this court.

<p>Petition for Partition — Will — Estate depending upon the happening of a Contingency.</p> <p>A testator provided by will as follows: “ 4. It is my will . . . that my daughter M. shall have the right to the use and occupation of the house and land [described] during the term of two years after my decease, or for such longer period as the house remains unsold (and of course during her life if she shall live so long), provided the same can be done without detriment to the estate and without causing a depreciation in the saleable value of the property, my said daughter paying the taxes and keeping the premises in good repair and condition, and allowing any purchaser the right to examine the premises and house. 5. I . . . appoint G-. . . . executor, . . . and I grant him power to sell and dispose of my real estate for purposes of distribution or for any other purpose, with full power to use his discretion as to the time and place of sale, and whether the same shall be public or private, provided that he shall as far as possible carry out my wishes as expressed in item fourth, and provided that the expressed wish of three out of four of my heirs shall be sufficient to warrant him in making- a sale at any time, subject, of course, to any provision in item fourth so far as the same can be observed.” By the second clause of the will the testator gave this estate, subject to the above provisions, to his four children, M., H., A., and J. Held, on a petition for partition by J., that M. had an estate for life, terminable upon the happening of a contingency, viz., a sale by the executor under the power, and the estate not having been terminated, partition would not lie.</p>

<p>Order for Payment of Money — Oral Promise — Statute of Frauds.</p> <p>If any credit is given to the person to whom goods are delivered, the oral promise of another to pay for them is collateral and within the statute of frauds.</p>

<p>Petition, filed October 11, 1898, by the selectmen of Revere, a town within a radius of ten miles from the state house in Boston, and within the metropolitan water district as designated by St. 1895, c. 488, entitled “ An Act to provide for a metropolitan water supply.”</p> <p>The petition alleged that within Revere, a corporation known as the Revere Water Company was engaged in the business of supplying the inhabitants thereof with water for domestic and other purposes; that the rates charged to the inhabitants by that company for water supplied for domestic and other purposes was unreasonable, exorbitant, and greatly disproportionate to the prices ordinarily charged for a similar service in the other cities and towns within said metropolitan water district.</p> <p>The prayer was that the court would fix the rate to be charged by the company for water supplied to the inhabitants of Revere at a reasonable sum, measured by the price ordinarily charged for a similar service in the other cities and towns within the metropolitan district.</p> <p>The Revere Water Company, which had been summoned to appear, demurred, assigning as grounds therefor: 1. That the petition did not contain any matter of law or equity whereon the court could ground any decree, or give to the petitioners any relief against the defendant. 2. That the jurisdiction of the court over the matters contained in the petition depended upon the validity of the provisions of St. 1897, c. 336, and that that statute was unconstitutional and void.</p> <p>Hearing before Hammond, J., who reserved the case for the consideration of the full court.</p> <p>The case was argued at the bar in March, 1899, and after-wards was submitted on briefs to all the justices.</p>

<p>Deed — Agreement by Grantee to pay Mortgage — Exoneration of Grantee of another Parcel included in Mortgage — Act operating as Satisfaction of Mortgage — Equity.</p> <p>If one of two parcels of land included in a mortgage is conveyed " subject to a mortgage claim of . . . the payment of which claim is a part of the consideration named,” and subsequently the other parcel is conveyed by a warranty deed, containing no mention of the mortgage, all of the deeds being duly recorded, the words quoted import an undertaking by the grantee in that deed to pay the mortgage, and the effect of the agreement thus made by him by accepting the deed is to throw the burden of the mortgage upon the land conveyed to him, as between him and his grantor, and the duty of exonerating therefrom the other parcel of land.</p> <p>When the owner of one parcel of land, who is required by equity to exonerate the owner of another from a mortgage, pays the amount due or does other acts sufficient to satisfy it, equity will treat the mortgage as satisfied, whatever may have been liis intention or the form of the conveyance from the mortgagee.</p>

<p>Fence — Validity of Proceedings of Fence Viewers — Officer de facto — Instructions — Evidence.</p> <p>It is no objection to the validity of a notice of a hearing to take action upon matters relating to a partition fence that it is given to the parties by one of the fence viewers, and the fact that he describes himself as a deputy sheriff does not make him any the less a fence viewer.</p> <p>In an action, under Pub. Sts. c. 36, § 4, to recover double the value of a partition fence built by the plaintiff after the defendant’s neglect to build it, although no record of the appointment as fence viewers of the persons who acted as such is put in evidence, if the defendant was present personally or represented at the hearings and was duly notified of all the proceedings in the matter and never challenged their authority thus to act, the jury are justified in finding that they were fence viewers de facto at least.</p> <p>The proceedings in this case, which was an action under Pub. Sts. c. 36, § 4, to recover double the value of a partition fence built by the plaintiff after the defendant’s neglect to build it, were authorized by §§ 5, 14, and it was not necessary to act under § 3.</p> <p>It is immaterial that the notices relating to action upon a partition fence given by fence viewers to the parties were prepared by the attorney of one of the parties.</p> <p>The fact that a surveyor employed to run the line by fence viewers in assigning the erection and maintenance of a partition fence was known by them formerly to have been in the employ of one of the parties and to have run the line previously, does not of itself necessarily show partiality on the part of the fence viewers, but it may be taken into account in considering that question.</p> <p>Evidence as to the number of engineers living in a city, the fence viewers of which, in assigning the erection and maintenance of a partition fence, have employed an engineer living in another city to run the division line, is properly rejected as too remote, in an action under Pub. Sts. c. 36, § 4, to recover double the value of the fence built by one of the parties after the other’s neglect to build it.</p> <p>In an action, under Pub. Sts. c. 36, § 4, to recover double the value of a partition fence built by the plaintiff after the defendant’s neglect to build it, the defendant excepted to the admission of the following evidence: 1. The question to one of the persons who acted as fence viewers in assigning the erection and maintenance of the fence, and who could not identify the signature to the certificate of the other, who was dead, “ Whether or not he acted as fence viewer in this matter with you?” 2. The question, “ How did you get the different stations of this line of fence ? ” 3. The question, “ When you went there to appraise the fence . . . how did you find the fence in reference to stakes that had been set by the surveyors ? ” 4. The demand by the plaintiff upon the defendant for payment of double the value of the fence as determined by the fence viewers. 5. The petition by the plaintiff to the fence viewers to view the fence built by him. Held, that no error appeared.</p> <p>The certificates of persons signing themselves as fence viewers, showing their proceedings in assigning the erection and maintenance of a partition fence and in adjudging the sufficiency of the fence erected by one of the parties after the other’s neglect to do so, and in determining the value thereof, although no record of their appointment as fence viewers Is put in, are admissible in evidence as the acts of de facto officers, in an action under Pub. Sts. c. 36, § 4, to recover double the value of the fence.</p> <p>In an action for trespass against a person who had built a partition fence after the plaintiff’s neglect to build it in accordance with an assignment by fence viewers, the answer to which set up the statute of limitations, it appeared- that it had been adjudicated that the true line was not the line which was established by the fence viewers. The judge instructed the jury that if they found that whatever trespass was committed occurred more than six years before the action was brought, the plaintiff could not recover ; that if the acts were dono within six years, the defendant would be liable for the damage suffered; and that if the defendant did not set the fence on the line designated by the fence viewers, his act would be a trespass, if done within the six years, but if he set the fence on such line, there was no trespass, because he had a right to do it under the statute. Held, that the plaintiff had no ground of exception.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by being struck by a locomotive engine of the defendant near Myrick’s Station in the town of Berkley. Trial in the Superior Court, before Bell, J., who, at the conclusion of the evidence for the plaintiff, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Ante-nuptial Agreement — Will—Residuary Clause —Widow as Beneficiary.</p> <p>A man entered into an ante-nuptial agreement with a woman whereby he was to give her $3,000 and to provide for the same by will, provided she would release her rights of dower and all rights in and to his personal property. Two days thereafter they were married, and a few weeks later he died, having made a will, in which he gave his wife $3,000 “ to be in lieu of dower and of any right which she might have in my personal estate as widow,” and gave many legacies, mostly pecuniary, and then gave the residue “ to the several beneficiaries under this will, except to N., share and share alike,” and three other legatees. The widow was not one of those excepted. Held, that she was a beneficiary under the residuary clause.</p>

<p>Contract, upon a policy of insurance in the Massachusetts ' standard form against loss by fire on the plaintiff’s property in Warren, containing the following provision : “ This policy shall be void ... if without such assent, [the assent in writing or in print of the company,] the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency or consent of the insured, be so altered as to cause an increase of such risks.” Trial in the Superior Court, without a jury, before Grashill, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant admitted the issuance of the policy and that the question of damages had been settled by reference to three disinterested persons, but set up in defence, and introduced evidence to support such defence, that the plaintiff had made such changes during the term of the policy in the situation or circumstances affecting the risk without its knowledge or consent in writing as to avoid the policy; namely, that he had given a mortgage to the Worcester County Institution for Savings, that he had left the houses insured open and uncared for, that he had put on other insurance, and that he had made alterations and repairs in the buildings without the defendant’s permission.</p> <p>The judge found against all the contentions of the defendant, except on the matter of the alterations and repairs made by the plaintiff during the term of the policy.</p> <p>It appeared that in the winter and spring of 1897, the plaintiff made the following alterations and repairs in and around the two houses that were destroyed by fire on November 22, 1897.</p> <p>There were four tenements in each house, and the houses were situated on the line of Crescent Street in Warren. The street in front of the houses was raised some fifteen feet and kept in position by a stone embankment. The street curved in front of the houses so that the houses were about twenty-five feet apart at their front and some fifteen feet apart at the rear. The entrances to the two lower tenements in each house were upon an avenue at the back of the houses. Each tenement was originally on a part of two floors.</p> <p>The plaintiff changed the two lower tenements in each house into flats so that the rooms of each tenement were all upon the same floor. He put down some hard wood floors, and changed the location of the doors so far as necessary to make the rooms on each floor open into each other. Outside he built an open plank walk from three to four feet wide from one house to the other on a line and on a level with the street. This walk was supported by two stringers attached to and reaching from one house to the other and also resting on two or more posts set in the ground. The stairs leading from one tenement to the other on the two lower floors of each house were taken out and located on the outside, and so placed as to lead down from such plank walk to another plank walk upon the ground. Between the houses and back of the lower plank walk were two privies for the accommodation of the tenants, each of which was originally divided into four apartments. The partitions between these apartments were either taken out or moved, and there were five apartments made for each, privy, but the outside walls of the privies were not changed. These repairs and alterations were all completed six months before the fire.</p> <p>The judge found as a fact that the risk was increased during the progress of the material alterations, and that the rate of insurance during that time was greater in consequence of the work done ; and that the defendant had no notice of such repairs and alterations during the progress of the work, nor afterwards prior to the fire.</p> <p>At the close of the evidence, the plaintiff asked for the following rulings : “ 1. The repairs or improvements made by the plaintiff were completed before the fire, and were in the nature of ordinary repairs, incidental to the proper use and occupancy of the buildings, and did not increase the risk to any appreciable extent, or to such an extent as to make void the policy. 2. The mortgage which the plaintiff gave to the Worcester County Institution for Savings on the property insured, in connection with the other property, was not in violation of the terms of the policy, and did not incréase the risk with the defendant company in any way. 3. If there was any violation of the terms of the policy by the plaintiff on account of alterations or other insurance, such violation ceased before the fire, and the same did not contribute in any way to the fire itself, and therefore the policy was in full force at the time of the fire.”</p> <p>The judge gave the second ruling asked for ; declined to give the others ; and found for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort, for entering a common sewer into the plaintiff’s private watercourse and causing a nuisance. The answer alleged, among other things, that the sewer was constructed under authority of the Public Statutes. Trial in the Superior Court, without a jury, before Braley, J., who reported the case for the determination of this court, in substance as follows.</p> <p>Prior to 1845, the predecessor in title of the plaintiff owned a mill called the “ Duck Mill,” now situated within the municipal limits of the defendant near the Nashua River, and used for manufacturing purposes. As a part of the power used to run its machinery, the mill used the waters of the river. These waters were conducted on to the land by a channel leading from the river above the dam, thence passing through the channel and over the wheel of the mill, through a private raceway back below the dam into the river. This artificial channel, called a tail-race, was built solely for use in connection with the mill, and has been so used ever since. The tail-race crosses the Bemis Road, through a culvert. This is an old road that has become a public way by prescription. The right so to cross this road was granted by William Bemis, so far as he had any right to make such grant; and this use of the road, that is, by building a culvert under it for the passing of water, has never been interfered with in any way by the town of Lunenburg or the town or city of Fitchburg, within whose municipal limits the tail-race was or now is.</p> <p>The plaintiff succeeds to the property by way of inheritance, and has operated the mill at least since 1890. Bemis Road runs in front of the property of the plaintiff, crossing the Nashua River, and thence easterly to Lunenburg, and westerly to a street called Water Street, and thence across Water Street to the almshouse, that portion of the street above Water Street being known as Wanoosnoc Road. Starting just above the almshouse and flowing southerly and easterly is a brook that empties into the river at quite a distance southerly of Bemis Road. Leading out of Bemis Road southerly is Falulah Street sloping towards the brook. For some distance westerly above Water Street and extending up towards the almshouse, then sloping easterly to the Nashua River, is a large area of land, which, prior to 3891, drained into the Nashua River, the water flowing over the surface to the river on the northerly portion of the tract, and on the southerly portion flowing largely into the brook, and thence into the Nashua River. No portion of this surface water affected in any way the use of the tail-race by the plaintiff.</p> <p>On April 7, 1891, William Baldwin and others petitioned the mayor and aldermen of the defendant city that a sewer be laid out and constructed from the almshouse through Wanoosnoc Road, then across Water Street, thence through Bemis Road to Nashua River. Due proceedings were had on' this petition, and on May 19, 1891, the board of aldermen passed the following order: “ Whereas : it having been and it hereby is adjudged to be necessary for the public health and public convenience that a main drain and common sewer be laid out and constructed in Wanoosnoc and Bemis Roads as follows, to wit: Beginning at the almshouse, thence running through Wanoosnoc and Bemis Roads to the raceway of the Duck mill. Ordered: that the sewer be built of fifteen inch sewer pipe in Bemis Road and of twelve inch pipe in Wanoosnoc Road, and that the work be done under the supervision of the superintendent of streets.” ‘</p> <p>Acting under this order, the superintendent of streets proceeded to construct a sewer from the almshouse through Wanoosnoc Road across Water Street into Bemis Road, and through Bemis Road to the culvert under the road through which the plaintiff’s raceway ran, so that the sewer, though built and discharging within the limits of Bemis Road, emptied into the raceway. The sewer was properly constructed, and it did not appear that it was negligently or defectively built. At the time the sewer was constructed, the superintendent of streets, as the surveyor of highways, for the purpose of repairing and keeping in repair Bemis Road below Water Street, and not as a part of the construction of the sewer, built and constructed catch basins upon each side of Bemis Road and connecting with the sewer.</p> <p>Subsequently, additional catch basins were built by him as surveyor and so connected. By the building of these catch basins in connection with the sewer, surface water to a large and appreciable amount which would otherwise drain into the brook, has been diverted, collected, and passed into the sewer, so that the sewer discharges into the raceway of the plaintiff more water and sand by way of surface drainage than naturally would be discharged there or into the Nashua River by reason of the natural watershed. , -</p> <p>Shortly after the sewer was built, large accumulations of sand • were brought down by the sewer and deposited in the tail-race. In consequence of this, the tail-race was choked up and the water was set back upon the plaintiff’s mill wheel, thereby cans-" ing appreciable diminution and loss of power, and this has continued to a greater or less extent up to the time of bringing this action.</p> <p>On October 15,1895, the plaintiff gave notice to the mayor and aldermen of the defendant city, that the sewer “ constructed on Bemis Road, emptying into the tail-race, a private watercourse leading from her wheels in the Fitchburg Duck Mills, caused great damage to that property by depositing earth and other sediment in the tail-race, and preventing a free discharge of the water from the water wheels,” and asking that the board cause the removal of the sewer outlet. On May 28,1896, a like notice and request was given to the mayor and aldermen.</p> <p>No action was taken thereon, and on May 27, 1897, this action was brought. Under the notice of the plaintiff to the defendant of October 15, 1895, reasonable examination and inspection of the working of the sewer would have made the défendant city or its officials charged with such matters aware of the additional water and sand deposited in the plaintiff’s tail-race by the action of the sewer, which could have been remedied. It was agreed between the parties that if the plaintiff was entitled to recover,' damages should be assessed in the sum of thirty dollars.</p> <p>The defendant asked the judge to rule that, upon the foregoing facts as matter of law, the plaintiff was not entitled to maintain her action. The judge refused so to rule ; and found and ordered judgment for the plaintiff in the sum of thirty dollars.</p> <p>If the ruling was right, the judgment was’to be affirmed; otherwise, judgment was to be entered for the defendant.</p>

<p>Contract, to recover a balance alleged to be due upon a judgment recovered in the Central District Court of Worcester. Writ dated September 24,1897. At the trial in the Superior Court before Hopkins, J., it appeared that the judgment had been rendered for the plaintiffs on January 30, 1889, and that execution was duly issued, and that a deputy sheriff levied it upon the personal property of the defendant, including stock of goods, fixtures, horse, wagon, harnesses, and safe, which property had been held under attachment by him, upon the writ in the original action, and the execution was never returned into court. It appeared also that the property was taken from the premises of the defendant by the deputy upon the writ in the original action in the team of the plaintiffs; and the defendant testified that he afterwards saw the entire property on the plaintiffs’ premises. The defendant’s counsel, to show the value of the property taken by the deputy upon the writ and afterwards levied upon, asked the following question of the defendant: “ Now what was the value of your stock of goods, fixtures, horse and wagon, harnesses and safe.” The judge excluded the question and the defendant excepted. The defendant offered no further evidence but requested the judge to rule that there was not sufficient evidence upon which the plaintiffs could recover, and to order a verdict for the defendant. The judge refused to rule as requested ; and it was agreed that upon the evidence, subject to the defendant’s exception, a verdict might be rendered for the plaintiffs for a sum named. The defendant alleged exceptions.</p>

<p>Personal Injuries — Declaration — Allegation of Negligence.</p> <p>A declaration in an action of tort for personal injuries, which, after alleging that tlie plaintiff on a day named was a passenger of the defendant’s railway, avers, “and that while on said car and while in the exercise of due care, owing to the negligence of the defendant corporation, its servants and agents, said car came in jeopardy of being run into by another car coming in the opposite direction on the same track and belonging to said defendant corporation, and that by reason of this position of both cars, the car on which the plaintiff was riding was stopped so negligently and so suddenly that the plaintiff, as a result thereof, was thrown from the car to the ground,” and injured, contains two distinct averments of negligence: one, the allowing of two ears to be brought into a dangerous position; the other, the sudden stopping of one of them.</p>

<p>Instructions — Saving of Exception.</p> <p>One issue in an action at law for an assault and battery was whether the defendant had used more than reasonable force in endeavoring to expel the plaintiff from the defendant’s 'premises, the judge having instructed the jury that the defendant had the right to use reasonable force. As bearing upon the question the judge gave an instruction to which the defendant’s counsel at the close of the charge excepted. He then further instructed the jury upon this point, and the defendant’s counsel said nothing further. The defendant, after verdict for the plaintiff, excepted; and the exceptions were allowed if the defendant was entitled to an exception to the part of the charge first mentioned. Held, that no exception was saved.</p>

<p>Lowering of a Public Highway by a Street Railway Company — Damages — Action against Town, •</p> <p>At the trial of an action for damages sustained by the plaintiff in his property by the lowering of a public highway in front of his land in the defendant town, it appeared that the lowering was done by a street railway company, acting under authority of a franchise from the defendant’s selectmen granted before the St. of 1898, c. 578, entitled “An Act relative to street railways,” that the selectmen acted within their authority in granting the franchise, and that the case did not come within the Pub. Sts. c. 52, § 15, which provide compensation for damages occasioned by the raising, lowering, etc., of a highway or townway. Held, that there was no ground for holding the defendant liable.</p>

Tort, for personal injuries. At the trial in the Superior Court, before Blodgett, J., the plaintiff testified that she entered the defendant’s store in New Bedford at the entrance on Purchase Street about nine o’clock in the morning; that there was a great crowd in the passageway; that she turned to the right to get round to the silk counter, which was on the south side of the store; that there were so many people there she had to edge her way along; that “ right there was…

<p>Flowage — Mills—Construction of Writing — Action.</p> <p>In order to maintain an action at common law for flowing land it is necessary for the plaintiff to show that the height of the defendant’s dam has been fixed by a verdict or an award, or an agreement clearly intended as a substitute for proceedings under the mill act, Pub. Sts. c. 190.</p> <p>After it had been determined that the respondent in a complaint for flowing land had an easement under the mill act, he filed a paper, not under seal, stating that he “ now utterly and forever refuses to have thrust or forced upon him and utterly disclaims any right whatsoever of raising the water ” above the limit named in the deed to him. An order for a sheriff’s jury to assess damages was stricken off, and afterwards the parties made an agreement of compromise which was shortly carried out, and the case was disposed of by the entry of “neither party.” It did not appear that the complainant ever accepted the disclaimer, or in any way agreed to it, or that the subsequent settlement was based upon it. Held, in an action of tort by the former complainant against the successor of the former respondent for flowing the same land, that the paper so filed by the respondent did not appear to be an agreement which was intended as a substitute for proceedings under the mill act.</p>

<p>Construction of Contract — Instructions.</p> <p>A. and B. executed a contract by which A. agreed to furnish the labor and materials for concreting a bicycle track, and B. agreed to pay A. a certain sum per square yard for the concreting “ in instalments in proportion as the work progresses, but not to exceed at any time eighty-five per cent of the estimated cost of the work executed, and the balance thirty-one days after the said work shall have been completely finished and delivered and accepted, unless some defect shall meanwhile have been discovered on said work.” Held, in an action by A. against B. to recover a balance claimed to be due, that the discovery of a defect in the work within thirty-one days after the completion and delivery of it would not work a forfeiture of the plaintiff’s claim, but that the contract permitted the postponement of the payment for a reasonable time after the expiration of thirty-one days, and allowed a reasonable deduction from the contract price if a defect in the work was discovered.</p>

<p>Tort, against Cornelius Doherty, Ann Doherty, Patrick Doherty, and Joseph Doherty, for personal injuries caused to the plaintiff by being thrown from his wagon while driving along Page Street, a public way in Avon, in consequence of his horse becoming frightened by a sow and pigs alleged to belong to the defendants. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that, as he was driving along Page Street about nine o’clock in the evening of September 1, 1895, opposite the farm of the defendant, Ann Doherty, the sow and pigs ran from some bushes growing within the limits of the highway on the street side of the fence which separated the farm from the highway ; that this caused his horse to shy, and he lost temporary control of it and was thrown from his carriage, receiving the injuries complained of; and that the pigs made no attack, and did not attempt, or make any demonstration, to attack the plaintiff or his horse.</p> <p>The plaintiff put in evidence the deed to the defendant, Ann Doherty, by which it appeared that her land was bounded westerly by Page Street. This street was a country road and was not much travelled. There were no sidewalks, and bushes were growing within the bounds of the highway on both sides of the travelled part. The houses along this street were scattered and at some distance apart. They were occupied by small farmers, and there were no houses very near the place where the alleged injury happened.</p> <p>It appeared in evidence that the farm of the defendant Ann Doherty was separated from the street by a stone wall. There was conflicting evidence as to the condition of this wall at the time of the injury complained of, the plaintiff’s evidence tending to show that it was down. Back from the road, surrounded by a stone wall, was another field used for the keeping of swine. There was also conflicting evidence as to the condition of this wall, the plaintiff’s evidence tending to show that it was down. The nearest point of this field to the road was about two hundred and fifty feet. The plaintiff contended that the swine kept in this field belonged to all the defendants. This they denied, and contended that they belonged to the defendant, Cornelius Doherty. The defendants, Patrick Doherty and Ann Doherty, are husband and wife. The other defendants are their sons, and they lived together about a mile from this farm. There was no direct evidence to connect Ann Doherty with the ownership of the swine, except that she was the owner of the land where they were kept, and the defendants all testified that Cornelius Doherty occupied that land under an oral lease from his mother, Ann Doherty.</p> <p>The plaintiff’s evidence tended to show that there were forty or fifty swine kept here at the time he was injured. The defendants testified that there were seventeen, and that none of them -were out of the pen on the night when the injury is alleged to have occurred.</p> <p>The plaintiff was asked the following question: “ Mow, had you seen those pigs out there before this time ? ”</p> <p>To this question the defendants objected, but it was admitted, and the defendants excepted. The plaintiff answered “Yes.” There was conflicting evidence on this point. The plaintiff’s evidence tended to show that hogs and pigs had been in the street in numbers from one to fifteen on an average of three times a week all summer. The defendants testified they were out but a few times all summer, and then they got out because dogs running in the field where they were kept, for the swill, threw the stones off the wall which surrounded the field.</p> <p>The defendants requested the judge to rule as follows:</p> <p>“ 1. Under the deed to the defendant, Ann Doherty, she was the owner of the fee in the land upon Page Street to the centre of the street, with full right of enjoyment in that portion of the street to herself or any person she might permit to occupy it, within that limit, in any manner not inconsistent with the enjoyment of the public for the purpose of a highway, with the right to depasture it, and to take the herbage and whatever else of value that grew thereon to any extent, not infringing the proper use of the street by the public. This right is exclusive of all other persons, and the plaintiff can have no action against the owner of the swine merely because those animals were in the highway. 2. The plaintiff can maintain his action only against the owner of the swine, and if he was injured by the acts of the swine, which consisted only in their running across the highway in front of the plaintiff’s horse, without attacking, or making any demonstration to touch or attack the plaintiff or his horse, then the plaintiff cannot recover. The jury must find that the animal causing the injury was vicious, that the injury was caused by its viciousness, and that the owner knew it to be vicious. 3. No action can. be maintained against the owner of the swine merely because those animals were in Page Street, but to entitle the plaintiff to recover he must show that the swine causing the injury were vicious, that the owners knew them to be vicious, and that their viciousness caused the injury. 4. The owner of land is under no obligation to fence his land along the highway. 5. To allow swine to be on Page Street unattended by their owner or his servant is not unlawful or such a breach of duty that that fact alone would render the owner liable for injuries caused to another person that may accidentally flow therefrom. 6. If the swine were on Page Street that fact does not give the plaintiff, who was not the owner of the land bounding on Page Street, any right of action against the owners of the swine for trespass, or because the swine in running across the street frightened the plaintiff’s horse. But to entitle the plaintiff to recover for an injury caused by the swine, he must show that the swine causing the injury were vicious, that their viciousness caused the injury, and that the owner knew them to be vicious. 7. Under all the evidence in the case the plaintiff cannot recover. 8. The plaintiff’s declaration sets out no cause of action. 9. In order to constitute the presence of the swine on the defendants’ land within the limits of the "highway wrongful on the part of the owner, it should appear that the circumstances and occasion, or that the character and habits of the animals, were known to the owner to such an extent as to warrant the finding of the fact of carelessness on the part of such owner in reference to the convenience and safety of the travelling public.”</p> <p>The judge gave the first instruction requested, and upon the other requests instructed the jury, among other things, as follows: “ If a horse or pig or any other animal, except a dog, strays into the street and does an injury, that would not ordinarily be considered negligence. In order to make the defendants, or any of them, liable for this injury, you must be satisfied that they either permitted the swine to go into the street without an attendant, and permitted them to graze or run in the street, or that they were negligent about it. That is to say, that they did-not use such care in relation to keeping them in the field or in the pen as an ordinarily prudent person would use, and that on that account they strayed out into the highway.</p> <p>“ I am leaving out of the question who is liable, and only considering whether any one is liable. Whoever was the owner or had the control of the swine, were they negligent in having them on the street at this time ? I have let in some evidence as to what had been seen in relation to the swine prior to this time, and that is not because it is claimed that they did any harm at prior times, the only purpose of that evidence is, and it is restricted to that purpose, to show whether they were out there on this occasion with the knowledge of the defendants or whoever was the owner or had control of them; and if you shall be satisfied that they were at large a good many times in the highway, that would be evidence upon which you might find that they did not take proper care to keep them in the field. So you will consider all the evidence that has been offered, as to the height and the kind of wall, the kind of fence, and the kind of bars or gates, whatever it was, and you are to determine from the evidence as to how these enclosures were cared for. So the first question is: Was proper care taken to keep these animals within the limits of the field, or were they allowed to go into the highway with the knowledge of the owner, or the person in control, or did they go there on this occasion by a pure accident, and not by any fault or lack of due care on the part of that owner ?</p> <p>“ If you find, then, that the defendants were negligent, that the owner or owners knew that the swine were running in the street, and liable to be in the street on account of the condition of the fences, or for any other cause, then you go to the next question, because that does not determine the right to recover. If you find they were not, that it was a mere accident that they got out, that the fences were proper, and that they got out without the fault or negligence of the owner, then the plaintiff cannot recover.</p> <p>“ If you find upon all the evidence and careful consideration of all the facts, in relation to the keeping of these swine, that the defendants knowingly permitted them to be in the highway, then you go to the next question, and you have to consider that for this reason: A person who owns land adjoining upon the highway owns the fee, as it is called, that is, he owns the land to the centre of the street; and so a man may keep his swine on the side of the street, or he may pasture his animals there, provided he does it in such a way as not to interfere with public travel. We have a statute which does not allow animals to be in the street without an attendant, but a man may have his cattle graze in the street if he does it with an attendant and under such proper regulations and with such care as not to interfere with public travel.</p> <p>“ So the next question is, remembering the rights of the defendants, or whoever had the control of the swine, were they in the street because of the negligence of that person, and were they there under such circumstances, in such numbers and at such times, without an attendant, as would be liable to endanger the public travel ? If you find that their presence there would be liable to frighten horses, and you find also that it did on this occasion frighten the plaintiff’s horse, while he was driving it, using due care, then you may find the defendants liable, but not otherwise.</p> <p>“ Now, if Mrs. Doherty was the person who owned the land and kept the swine there, she would be the person who trould be chargeable with the duty of properly taking care of them. If you believe the evidence of these defendants, then she would not be liable; and if the wife let the land, as she claims she did, for the purpose of keeping these swine there, and the husband knew that, and he had no control or took no care of -the pigs, of course he would not be liable. If all Joseph Doherty had to do with the pigs was to bring swill there, and he had no control or management of them otherwise, he would not be liable ; and therefore if you believe this claim of the defendants that no one but Cornelius Doherty owned the pigs, then nobody but Cornelius would be liable. It is all a question of fact for you to determine under the evidence. In order to find for the plaintiff as against anybody but Cornelius Doherty, you must find that they were either the owners, or had control of the swine, so it would be their negligence. But you must determine whether there is any evidence to satisfy you, by a fair preponderance of the evidence, that Ann Doherty was really the owner of these pigs and had control of them; if you find she did, then she is liable, if you find the other facts which I have suggested are sufficient to make any one liable for keeping the swine.”</p> <p>The jury returned a verdict for the plaintiff against the defendants, Ann Doherty and Cornelius Doherty only; and they alleged exceptions.</p>

<p>Way by Necessity — Finding — Obstruction of Way.</p> <p>The conditions which give rise to an implication that a way is granted where none is mentioned, must create a strict necessity for the way in order reasonably to use the property, and the right of way by necessity will continue only so long as the necessity continues.</p> <p>Land had been used most of the time for over two hundred years for pasturage, and the cattle that fed there had always passed over adjoining land, there being no other access to it by land, and the two lots being originally the property of a common owner. A portion of the land had been cultivated some of the time as a farm, and in recent years cottages had been erected upon it along the shore which were occupied by summer residents. A steamer usually ran up and down the river on which the land bordered twice a day in summer, stopping there, and was commonly used by the residents, but no teams with horses or oxen had been carried on the boat, and the only way to get there with a team was to go over the adjoining land. Held, in an action for obstructing an alleged right of way, that a finding that the way by water was not available for general purposes to meet the requirements of the uses to which the property would naturally be put, was warranted; and that it was fairly to be implied that a way by necessity over the adjoining land was intended to be granted.</p> <p>In an action for obstructing a right of way over the defendant’s land, if the testimony indicates that a fence and a ditch were so placed by him as to interfere with the use of any way that might be located or used over his land, and virtu-ally to leave the plaintiff with no place to pass by land to his adjoining property, a finding that it was intended to be and was in fact an obstruction which would prevent the plaintiff from passing with teams over the defendant’s property in the exercise of his right, is warranted.</p>

Tort, for personal injuries. The declaration alleged that the defendant was a corporation operating a telegraph system; that on or about October 1, 1896, the defendant was locating telegraph poles on Western Avenue, in Lynn, “ within ten feet of the building occupied by the plaintiff for a dwelling-house, and for said purpose was engaged in blasting a ledge at said place, and that reasonable care in said work required that the ledge so being blasted should be covered and…

<p>Order of City Council — Vacation to Members of Police Department.</p> <p>It is within the power of the city council of Haverhill to adopt an order granting all members of the police department, including the driver of the patrol wagon, a ten-day vacation without loss of pay, on the condition that it shall be at no extra expense to the department.</p>

<p>Contract, upon a judgment obtained in Florida. Trial in the Superior Court, without a jury, before Sheldon, J., who found for the defendant; and the plaintiffs alleged exceptions. The facts appear in the opinion.</p>

<p>Appeal from a decree of the Probate Court dismissing the petition of Ellen Hill, widow of Charles G. Hill, deceased, intestate and leaving no issue, for the assignment to her, under Pub. Sts. c. 124, § 3, of an estate in fee not exceeding $5,000 in value in lands in which he had a vested remainder. Hearing before Morton, J., who reserved the case on the petition, answer, and agreed facts for the consideration of the full court.</p> <p>The agreed facts recited that Abner Hill died on January 1, 1874, leaving a widow, Martha A. Hill, and four children, Charles G. Hill, Edward L. Hill, Henry M. Hill, and Hermione A. Pike; that by the terms of his will he bequeathed all his personal property to his widow, Martha, and devised his real estate as follows:</p> <p>“ Third. I give, devise, and bequeath to my said wife, Martha A. Hill, the income, use, and improvement of all my real estate, for and during her natural life, with full power to sell and dispose of so much of the said real estate in fee simple, as may be necessary for her support, if the income does not prove sufficient ” ; that one fourth of the real estate was of less value than $5,000; that Martha A. Hill died on March 27, 1898, not having conveyed any part of the real estate; that Charles G. Hill died on August 1, 1896, and the petitioner was appointed administratrix of his estate; that Charles G. Hill left no real estate except his interest, if any, under said will; and that the three other children were living, and were the respondents.</p>

<p>Contract, upon an account annexed, for keeping a pair of the plaintiff’s horses in the defendant’s engine house for use on a steam fire engine. At the trial in the Superior Court, before Richardson, J., the jury returned a verdict for the plaintiff; and both parties alleged exceptions. The facts appear in the opinion.</p>

<p>Tout, in two counts, for slander in accusing the plaintiff of the crime of adultery. At the trial in the Superior Court, before IÁlley, J., the jury returned the following verdict: “ The jury find for the plaintiff and assess the damages in the sum of one thousand and four hundred dollars. The jury find on the second count in the declaration and assess the damages in the sum of one dollar.” The defendant, besides appealing from an order overruling a demurrer to the declaration, alleged exceptions, which appear in the opinion.</p>