Volume 175 — Massachusetts Reports

<p>Writ of entry, dated August 11, 1898, to recover a parcel of land in Haverhill. Plea, nul disseisin. Trial in the Superior Court, without a jury, before Sherman, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The demandant offered the following evidence.</p> <p>A warranty deed from William M. Bowley and others to the tenant, dated May 15, 1897, and recorded, conveying five undivided sixth parts of the demanded premises, and a deed from George A. Hall, guardian, to the tenant, dated May 29,1897, and recorded, conveying one Undivided sixth part of the demanded premises, and being in the form commonly used by guardians. In both of these deeds the grantee was described as George Ward Cook, trustee, and the habendum was “ to the said George Ward Cook, trustee, and his heirs and assigns, to their own use and behoof forever.” Neither of these deeds contained any words indicating a trust, excepting the description of the grantee as George Ward Cook, trustee. An execution issued on a judgment recovered by the demandant on April 22, 1898, against the tenant, described as George Ward Cook, in an action brought in the police court of Haverhill. ' It appeared- by the officer’s return on the execution that on February 19, 1898, he had attached all the interest of the tenant in real estate in the Southern District of Essex County, in which Haverhill is situated ; and that on May 21, 1898, he levied the execution on the tenant’s right in equity of redeeming the demanded premises. Further service of this execution was then suspended on account of prior attachments. On June 21,1898, the prior attachments having been dissolved, the officer proceeded with and completed the levy, as required by law. On July 28,1898, he sold the tenant’s right in equity of redeeming the demanded premises to Harriett L. Jewett. A deed from Fred O. Raymond, Jr., deputy sheriff, to Jewett, dated July 28, 1898, and recorded, conveying all the tenant’s right in equity of redeeming the demanded premises which he had on February 19,1898, when the same was attached. A quitclaim deed in common form of the demanded premises from Jewett to the demandant, dated August 10,1898, and recorded. A mortgage of the demanded premises given by the tenant, described as George Ward Cook, trustee, to Bowley, dated May 29, 1897, and recorded, containing covenants of warranty and seisin, and also containing a- power of sale in the ordinary form. A deed of the demanded premises under the power in the mortgage above mentioned to the tenant, described as George Ward Cook, agent, dated June 22,1898, and recorded, and an affidavit stating that the sale under the mortgage was made on June 22,1898. The habendum in the deed was “to have ■ and to hold the same to the said George Ward Cook, agent, and his heirs and assigns, to their own use and behoof forever.”</p> <p>The tenant offered in evidence a certificate of an entry to foreclose the mortgage given by the tenant to Bowley, above mentioned.</p> <p>The demandant requested the following rulings: “ 1. The deeds from George A. Hall, guardian, and from William M. Bowley and others to George W. Cook, trustee, did not create an estate in trust. 2. The deeds from George A. Hall, guardian, and from William M. Bowley and others to George Ward Cook, trustee, conveyed an absolute title to George Ward Cook. 3. The evidence is not sufficient to establish a trust estate. 4. The deed from William M. Bowley to George Ward. Cook, agent, dated June 22, 1898, and recorded with Essex South District Deeds, operated as a discharge of the mortgage given by George Ward Cook and mentioned in said deed. 5. The words ‘ trustee’ and ‘ agent ’ in the deeds do not affect the construction of the deeds. 6. The words 1 trustee’ and ‘ agent’ as used in the deeds have no significance, and must be rejected as surplusage. 7. As matter of law, upon the evidence the demandant is entitled to judgment. 8. As matter of law, upon the evidence .the tenant is not entitled to judgment.”</p> <p>The judge made all the rulings requested by the demandant, except the fourth, seventh, and eighth; and being of opinion that when the levy became complete it took effect as of May 21, 1898, and that from that date the tenant could acquire an independent title to the property by purchase from the mortgagee, found for the tenant.</p> <p>The demandant excepted to the refusal to give the fourth, seventh, and eighth rulings, as requested.</p> <p>If those requests were properly refused, and the finding for the tenant was correct, judgment was to be entered for him; otherwise, judgment was to be ordered for the demandant.</p>

<p>Petition to the Probate Court by the administrator de bonis non with the will annexed of the estate of Edward C. Taft for the examination of the respondent under Pub. Sts. c. 133, § 1, relating to persons suspected of having fraudulently received, concealed, embezzled, or conveyed away any estate, real or personal, of a deceased person, as to certain real property of Edward C. Taft, alleged to have been “ fraudulently received, concealed, and conveyed away ” by the defendant.</p> <p>The respondent filed a motion to dismiss on the ground that the statute did not apply to lands. The Probate Court denied the motion and ordered the respondent to appear for examination ; and the respondent appealed. Hearing before Knowlton, J., who by agreement of the parties reported the case for the consideration of the full court.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. The declaration contained three counts, the first at common law and the other two under the employers’ liability act, St. 1887, c. 270. Trial in the Superior Court, before IÁlley, J., who, at the close of the plaintiff’s case, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Libel for Divorce — Acts not amounting to Cruel and Abusive Treatment.</p> <p>At the trial of a libel for divorce for cruel and abusive treatment within the meaning of Pub. Sts. c. 146, § 1, it appeared that the libellee failed to stay at home and take care of her husband or to consent to his hiring a nurse' or housekeeper so to do, threatening to leave him if he did hire one, that he was not dependent solely upon his wife, that he was under the care of a physician and had the money with which-, to procure nursing and proper food, which food he did in fact procure when he got up from his sick bed by boarding with the occupants of another tenement in the same house, and that he afterwards went away in search of health. There was no pretence that the hiring of a nurse could not have been done through the physician. Held, that under these circumstances the fact that the libellant’s health was temporarily injured by the libellee’s failure to comply with the doctor’s orders as to the libellant’s diet and medicines was not sufficient.</p>

<p>Broker’s Commission — Double Employment — Exceptions — Option.</p> <p>In an action against the buyer of land for a broker’s commission, if the plaintiff's evidence leaves it doubtful whether, while acting for the defendant, he also was employed by A., the owner of the land, to sell it, or simply had an option on the property at a price named, the defendant is entitled to have the jury instructed that “ if the plaintiff acted as agent for A., without disclosing the fact that he was such agent to the defendant, he cannot recover a commission from the defendant.” '</p> <p>The fact that in an offer by B. for property which A. claims made him B.’s broker B. named the price which he was willing to pay the owner of the property and the sum which he was willing to pay A. is immaterial, in an action by A. against B. for a broker’s commission.</p> <p>A question of pleading not raised at the trial is not open on exceptions in this court, although the bill of exceptions states that the pleadings are made a part thereof.</p> <p>If’ A. is given by B. merely an option on the latter’s land at a price named, A., without violating any duty to B., may elect not to exercise such option and undertake the duties incident to acting as a broker for C. in the purchase of the land, and in that event the existence of the prior option is not a material fact which A. in good faith is bound to disclose to C.</p>

<p>Contract upon a bond to dissolve an attachment executed by the first named defendant as principal, and by David F. Inglis and James J. Mehan as sureties. Trial in the Superior Court without a jury, before Richardson, J., who found for the plaintiff; and Mehan, who alone defended, alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in January, 1899, and after- • wards was submitted on briefs to all the justices.</p>

<p>Tort, for causing the death, and for the conscious suffering of the plaintiff’s intestate, who was a motorman in the employ of the defendant. The declaration was under the employers’ liability act, St. 1887, c. 270, and at common law. Trial in the Superior Court before Bell, J., who ruled that the plaintiff’s intestate was not in the exercise of due care, and directed a verdict for the defendant; and the plaintiff alleged exceptions. If the ruling was right, judgment was to be entered for the defendant ; if wrong, the verdict was to be set aside and a new trial granted. The facts appear in the opinion.</p>

<p>Personal Injuries — Unsafe Condition of Premises filed for Use of Public — Liability of Owner — Action.</p> <p>The front line of a building situated at the corner of A. Street and B. Street, which ran at right angles to each other, in the business section of a town, was set back from each street line. The whole space from the face of the building to the curbing of the sidewalk on each street was covered with concrete and presented a uniform appearance, there being nothing to distinguish the part maintained by tlie town from the part owned and maintained by the owner of the building, and both parts were used openly and freely for public travel. The only exception to the uniformity of appearance was that on B. Street, a short distance from the corner of the building, there being a difference in grade in the concreted area, which terminated abruptly, a retaining wall separating the two grades was built two feet high where it began on the face of the building and ran about seven feet until it met the grade of the sidewalk, where it ended, and it had no fence or guard. A woman, who, on a dark night, had been transacting business at a store in a building owned and controlled by the defendant, the entrance to which was on A. Street, and who was unfamiliar with the premises, after leaving the building, proceeded along the concreted area on A. Street to the corner, and then round the corner on the concreted area on B. Street, stepped over the wall at a point about six feet from the building and within the part maintained by the owner, and fell, receiving injuries. Held, that she could maintain an action against the owner of the building for her injury.</p>

<p>Mechanic’s Lien — Consideration of Cases together — Order of Sale — Pendency of Exceptions — Distribution of Proceeds— Costs.</p> <p>Where the parties to several petitions to enforce mechanics’ liens, under Pub. Sts. c. 191, are the same, although no order of consolidation is made, it is within the power of the Superior Court, upon appeal from a District Court, to consider the cases as one, and to enter an order of sale in one of the cases, and to recite in that case the names of the lienors who have established their liens in either one of the cases, and the amount due on each as established by the judgments of the lower court, from which no appeal was taken, or by the Superior Court; and separate costs are properly allowed in each case.</p> <p>Where several petitions to enforce mechanics’ liens under Pub. Sts. c. 191, are tried together, if exceptions taken at the trial as to one of the claims are undisposed of, the proceeds of a sale ordered upon the establishment of the liens cannot be distributed under § 28, but must be held and disposed of under § 29, making provision for cases where all the claims are not ascertained.</p> <p>An order of the Superior Court for the sale of property against which a mechanic’s lien is established, and an order for distribution of the proceeds under Pub. Sts. c. 191, § 28, arc so far separate and distinct that the order of sale may be valid and effective although the order of distribution may be invalid, and the judgment as to one of several claims of lien considered together may be valid notwithstanding the judgment upon another may be wrong.</p>

<p>Modifying Original Sentence — Imposing Sentence at a Sitting of the Court for Civil Business.</p> <p>On December 3, 1897, a person, having been found guilty of obtaining property by false pretences on October 31,1894, was immediately sentenced to imprisonment in the state prison for not less than three or more than five years. After announcing the sentence the clerk said, “ Mr. Sheriff, the prisoner at the bar is in your custody under sentence.” Exceptions having beeii taken, the judge soon after, at the defendant’s request, made an order staying the execution of the sentence, and the prisoner, who had remained in the court-room with the sheriff, was admitted to bail. No transcript under Pub. Sts. c. 215, § 25, was ever delivered or made out. The exceptions, having been argued in this court in October, 1898, were overruled in November, 1898. On the receipt of the rescript the defendant was not present in the Superior Court and was defaulted. A copias was issued, on which he was arrested and brought before the court on January 16, 1899, at a regular sitting for the transaction of civil business, the District Attorney moving that such sentence should be imposed as would be applicable, having informed the judge that the original sentence was under St. 1895, c. 504, which had been held by this court inapplicable to offences committed before January 1, 1896. The judge, against the defendant’s objection and subject to his exception, sentenced him to a term of three years in the state prison, the first day of which was to be in solitary confinement, and the balance at hard labor. Held, that the judge had the power to modify the original sentence and make it conform to the law, and that the objections that the sentence could not be imposed at a sitting of the court for the transaction of civil business, and that the judge was engaged in the transaction of civil business a little before and a little after imposing it, could not avail.</p>

Tort, for personal injuries occasioned to the plaintiff while in the employ of the defendant. At the trial in the Superior Court, before Maynard, J., the case was submitted to the jury on a count in the declaration under the employers’ liability act, St. 1887, c. 270, alleging negligence of a superintendent, and on a count at common law, alleging failure to give the plaintiff proper and sufficient instructions and warnings in regard to the danger of his work.

Complaint, under St. 1894, c. 458, § 10, entitled “An Act to provide for the registration of physicians and surgeons,” as amended by St. 1895, c. 412, to the Second District Court of Bristol, alleging that the defendant, on January 1, 1898, “ and on divers other days and times between that day and the day of making this complaint,” at Fall River, “ did hold himself out to the public as a physician and surgeon, without being then and on the said other days and times duly…

<p>Tort, for personal injuries occasioned to the plaintiff, a minor, while a passenger on an electric car of the defendant. Trial in the Superior Court, without a jury, before Maynard, J., who found for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

Petition, to establish the truth of exceptions alleged by-Frances W. Fitch in an action of tort brought by he'r against Marietta R. Jefferson, and disallowed by Sherman, J., who presided at the trial in the Superior Court.

<p>Petition, to the Probate Court, by the executor of the will of Joseph Frothingham, for instructions as to the payment of a collateral inheritance tax on the residuary legacies. The case was heard on agreed facts, and came here by successive appeals from decrees of the Probate Court and of a single justice of this court finding that the tax was payable, and directing the executor to pay the same. The facts appear in the opinion.</p>

<p>Devise and Legacy — Prescription — Easement — Equity Practice.</p> <p>A,, by his will, devised to B. for life the dwelling-house occupied by B., together with the land on which it stood, the lines of which were described; and also devised his own adjacent dwelling-house and the land on which it stood, after his wife’s death, to his grandson, C. A walk constructed of artificial stone ran from the street along the northerly side of B.’s house to a side door and to the back part of the house, in such a position that the boundary line of his lot as described in the will ran longitudinally through the walk, one foot in width of the stone being on B.’s side of the line and two feet on C.’s side. There was also a paved driveway leading back from the street to a barn on C.’s property in such a position that the northerly side of the driveway was twenty-six feet distant from the line described in the will. B.’s house was built by A., who was his father-in-law, and had been occupied ever since by B. and his family. A walk was constructed from this house through the grounds to A.’s dwelling-house on the adjacent lot. The driveway was used occasionally by B., and he and A. and their families passed back and forth in daily intercourse between the houses. The portion of the grounds between B.’s house and the driveway was occupied by him. A. paid the taxes on B.’s house and lot, the house was insured in A.’s name, a man in his employ was accustomed to mow the grass on both lots, and there was nothing before A.’s death to indicate that B. made any adverse claim to the property. Held, on a bill in equity by B. against C., that B. had not acquired by prescription any rights in the land northerly of the boundary described in the will; and that there was no such connection shown between the driveway and B.’s house, or between his house and the land between the stone walk and the driveway as to create an easement in favor of his lot.</p> <p>After an exception has been taken to an order dismissing a bill in equity, and before the expiration of the time for filing a bill of exceptions, a formal final decree properly cannot be entered, but the case should be left open upon the order for a final decree until the time for filing a bill of exceptions has passed, or until the decision of the question of law raised by the exception.</p>

<p>Court of Registration — Report before Entry of Decree — Statute — Deed — Restriction.</p> <p>Under St. 1899, c. 131, § 2, the Court of Registration may report a cáse for the consideration of this court, although no order or decree has been entered, if the case is ripe for judgment or decree, and the report shows that a decree would be entered if it were not for the question of law, and provides for a decree when the doubt upon that question is resolved.</p> <p>A deed contained the restrictions, “ that the said grantee or his heirs or assigns shall not for a period of ten years erect on the granted premises any buildings or parts thereof which shall be used or occupied for any other purposes than dwelling-houses, and private stables, and buildings usually appurtenant to dwelling-houses, except the corner "lots, which may be used for store purposes, and said dwellings to be occupied by none but respectable families, and that no building, or part of any shall be erected within fifteen feet of the front line of each lot, and that no dwelling-house shall be erected thereon to cost less than ” a sum named. Held, that the words “ for a period of ten years ” governed the entire clause.</p>

Petition, for a writ of prohibition against the judges of the Court of Registration established by St. 1898, c. 562, entitled “An Act to provide for registering and confirming titles to land,” to prohibit them from proceeding further in registering the title to a certain parcel of land and determining the boundaries between it and an adjoining parcel of land belonging to the petitioner.

<p>Two ACTIONS OE contract upon the following instrument, dated September 22,1894, and executed by J. A. Beauvais and by the defendants respectively:</p> <p>“ Whereas, 1,360 shares in the capital stock of the Union Street Railway Company, in New Bedford, have been, or are about to be, under an agreement dated Sept. 4,1894, taken and purchased by a syndicate composed of J. A. Beauvais, J. N. Beckley and others ;</p> <p>“ And Whereas Frank W. Brightman of Fall River has been largely instrumental in organizing said syndicate, and he considers that for his services therein in case the syndicate is formed, and the aforesaid shares purchased, he should receive for his compensation the sum of ($5,000) five thousand dollars in the stock of said Company at $169 a share, at its present capitalization;</p> <p>“ Now, the said Frank W. Brightman agrees to use his best endeavors to obtain that compensation from the said syndicate as a whole, and the said J. A. Beauvais agrees to use his influence to secure to the said Brightman the aforesaid compensation. If the efforts of the said Brightman and the said Beauvais shall be unsuccessful, -in that behalf, we whose names are hereto subscribed, agree, severally, to pay said Brightman, in stock of said Company, at $169 a share, a commission of $4 per share upon the number of shares of said stock we sell to said syndicate, less the number of shares we have severally subscribed as members of said syndicate, and less, also, on such shares as we, or either of us have assumed certain obligations to induce parties to become members of said syndicate. In case said Brightman should receive from said syndicate a part of said compensation, then the subscribers hereto are not to be required to contribute and pay the commission as above to said Brightman on more shares than will be sufficient to make up said sum of ($5,000) five thousand dollars ; in which case, the proportionate part that they severally pay as members of the syndicate, shall be credited them in the proposed settlement as above set forth.”</p> <p>The material provisions of the agreement referred to in the above-named instrument were as follows:</p> <p>“ Whereas, 1,360 shares of the capital stock of the Union Street Railway Company, of New Bedford, Mass., can be purchased, out of a total capital stock of 2,600 shares, by the subscribers hereto at the price of $169 per share;</p> <p>“ And Whereas, the undersigned are desirous of becoming members of the syndicate for the purchase of such stock, to the end that thereby control may be obtained of said railway company and gain and advantage accrue to the several subscribers hereto ;</p> <p>“ Now therefore, in consideration of the premises, and of one dollar paid by each of the subscribers hereto to the others, the receipt whereof is hereby acknowledged, we, whose names are hereunto subscribed, do severally agree to take, and, on demand, pay for the number of shares of stock of said railway company set opposite our respective names, at the price of $169 per share; and after the purchase of such stock to enter into a pooling contract under the provisions of which all such stock so purchased shall be voted at each annual meeting for a period of not less than three years, for such Board of Directors as shall be named by ” five persons enumerated, “ara majority of them, with power granted to a majority of the persons so named, as pooling committee, to fill any vacancy which may occur from any cause in the membership of such committee.</p> <p>“ The payment of such stock to be made to J. A. Beauvais ten days after notice to the subscriber from him to the effect that the whole 1,360 shares of said stock proposed to be purchased has been subscribed for.</p> <p>“ Said J. A. Beauvais agrees to obtain and deliver to the several subscribers hereto the number of shares of said stock subscribed for by each of the signers hereof upon the payment to him of the purchase price of the same. This obligation is assumed, however, on the mutual understanding that the said J. A. Beauvais has now in his possession a majority of the said 1,360 shares, and that on a minority thereof he holds good and valid written contracts, from the owners thereof, for its sale and delivery to him, upon the payment to them of the said purchase price of $169 per share; and that he shall not be held personally responsible in respect to the delivery of the stock not in his possession except, for the faithful enforcement of the written contracts he holds as aforesaid; and to which enforcement he pledges his best efforts. ■</p> <p>“ This contract shall not be binding upon any subscriber unless the whole number of 1,360 shares of stock has been hereto subscribed for, on or before the 5th day of October, 1894.”</p> <p>The cases were tried together in the Superior Court, without a jury, before Hardy, J., who found for the plaintiff in eachcase; and, at the request of the defendants, reported the cases for the determination of this court. The facts appear in the opinion.</p>

<p>Bill in equity, filed December 7, 1898, in the Superior Court, alleging that on or about May 15, 1894, Samuel W. Forrest executed to the defendant a mortgage, containing a power of sale, of his interest in certain real estate in Lynn ; that the mortgage was conditioned to pay the sum of $2,100, with interest, and provided that, in case of a default and subsequent sale, the proceeds should be applied first to the legal indebtedness of the defendant, and that the surplus should be paid to the mortgagor ; that there had been a default in the conditions of the mortgage, and the property was duly sold according to its terms, on or about April 9, 1898, to Ralph W. Putnam, for the sum of $2,571, which sum exceeded all the indebtedness of the defendant by the amount of $219.27; that subsequently to the execution of the mortgage to the defendant, and prior to the foreclosure sale, namely, on June 19,1897, the plaintiff made an attachment of Forrest’s interest in the real estate described in the mortgage, and the attachment was duly recorded, as required by law, and was the first of numerous attachments and other liens recorded on Forrest’s equity in the premises ; that the plaintiff recovered judgment in his action against Forrest for the sum of $215, and execution was issued thereon on November 9, 1898, which had never been satisfied, in whole or in part; that within thirty days from the date of the judgment, namely, on December 7, 1898, the plaintiff had maintained his lien on the surplus proceeds of the sale of the land by filing this bill and causing a demand to be made on the defendant for the share of such surplus belonging to Forrest; and that the plaintiff was entitled to have the defendant pay over the share of Forrest in such surplus.</p> <p>The prayer of the bill was that the defendant be ordered to account to the plaintiff for the proceeds of sale, and to pay over to the plaintiff the share of Forrest in such proceeds, or so much thereof as should satisfy the plaintiff’s claim, after deducting the indebtedness of the defendant.</p> <p>The answer alleged that, on April 29, 1898, the defendant, without notice of any legal proceedings by the plaintiff against Forrest, and upon the latter’s order, paid $200 of the surplus proceeds in its hands to one Holcombe, an execution creditor of Forrest, of whose claim it had notice before the sale, and paid the balance of $19.27 to Forrest.</p> <p>Hearing before Sheldon, J., who dismissed the bill, with costs; and the plaintiff appealed to this court.</p>

<p>Forcible Entry and Detainei Effect of Assignment of Mortgage to Mortgagor after Sale of Premises subject to Mortgage — Evidence.</p> <p>The transfer of the mortgage note and the assignment of the mortgage to the original mortgagor after the premises have been sold subject to the mortgage, the grantee not assuming to pay it, do not constitute a discharge of the mortgage so thafit cannot be enforced against the property.</p> <p>If the mortgagor of land which has been conveyed subject to the mortgage, the payment of which is not assumed, upon the mortgagee threatening to foreclose the mortgage if the mortgage note is not paid, and to hold the mortgagor responsible for any deficiency, causes the amount of the note to be furnished to the grantee of the land, and subsequently takes an assignment of the mortgage and forecloses it, evidence showing that the mortgagor’s intention in paying the money was to obtain the benefit of the mortgage security for a debt which was a charge upon the land, is competent in an action on Pub. Sts. c. 175, by the purchaser at the foreclosure sale to recover possession of the premises.</p>

<p>Appeal where no Exception was taken to Findings of Master — Allowance of Further Time for Redemption of Mortgage.</p> <p>If, on a bill in equity to redeem real estate from a mortgage, no exception was taken to the findings of the master which the plaintiff seeks to have reviewed by this court, there is no question properly before it, and the decree of the Superior Court must be affirmed; but, the time allowed for redemption having expired pending the appeal, that court may, if it sees fit, allow a further time for that purpose.</p>

<p>¡Tax — Occupancy of Property of Literary Institution exempting it from Taxation— Statute—Agreed Facts -7- Assessment for Street Watering—Constitutional Laxo — Vote of Town.</p> <p>The occupancy contemplated by Pub. Sts. c. 11, § 5, cl. 3, as amended by St. 1889, c. 465, exempting from taxation the real estate belonging to literary institutions “ occupied by them or their officers for the purposes for which they were incorporated,”-means something more than that which results from ownership and possession on the part of the institution, or the use of the property for investment purposes. It must have, or be supposed to have, direct reference to the purposes for which the institution was incorporated, and must tend, or be supposed to tend, directly to promote them.</p> <p>The agreed facts in this case, which was an appeal from a decision on a petition for the abatement of a tax assessed upon the petitioner’s property, are not stated with sufficient fulness to enable this court to pass satisfactorily upon the questions involved, and are therefore discharged, and the case is sent back to the Superior Court for another trial.</p> <p>The St. 1895, c. 186, authorizing any town the population of which exceeds three thousand, which shall adopt the provisions of the act, to appropriate and spend money for watering its public streets, and to assess upon the estates abutting on the streets so watered the whole or any portion of the cost of such watering, is constitutional.</p> <p>Where the vote of a town appropriating'money for watering streets contains an express reference to St. 1895, c. 186, authorizing such an appropriation, and states that the money is appropriated under that act, the plain meaning of the vote is that the. provisions of the act are to be applied in regard to the expenditure that is authorized, and in the absence of anything limiting the amount of the assessment, the fair inference is that the whole cost is to be assessed on the estates which abut upon the streets that are watered.</p>

Contract, upon an account annexed, to recover salary as principal of the defendant’s high school for three weeks and four days, at the rate of $800 per year, during which time the school was closed. At the trial in the Superior Court, before CrasTdll, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Contract, to recover money paid by the plaintiff bank upon a judgment against it. The case was submitted to the Superior Court, and, after judgment for the defendant, by Aiken, J., to this court, on appeal, upon agreed facts, in substance as follows.

<p>“ Prosecution ” of Civil Actions — Authority of Law Board of Town to bring Suits in its behalf.</p> <p>As applied to proceedings upon the civil side of a court, the ordinary meaning of the word “ prosecution ” includes the institution of a suit, and is not confined to the mere pursuit of a remedy after proceedings have been instituted.</p> <p>If the fact that a town is so populous that its legal voters cannot be warned and assembled in town meeting without expense and great loss of time, whenever it may be necessary -for the town to prosecute its rights in court, is matter of common knowledge, it tends to confirm the view that when, by an elaborate chapter of its by-laws, the town provided for a law board of the principal town officers, and authorized them to choose a town solicitor and “ to prosecute ,all litigation to which the town is a party,” the town thereby authorized the board to bring suits in the name and behalf of the town; and therefore the bringing of a suit under votes of that board, authorizing the town solicitor to serve notices on the bondsmen of the’ defaulting town treasurer, giving them two weeks for settlement, and further authorizing the solicitor, if unable to make arrangements towards a settlement, at the end of that time to take legal, measures to collect the amount due the town, and the vote engaging counsel for the town in the prosecution, make the action that of the town.</p>

<p>Estates'of Persons Deceased — Evidence — Declarations of Deceased — Statute — Attorney and Client.</p> <p>The St. 1890, c. 445, relative to evidence in an action against the personal representative of a deceased person, in which the cause of action is supported by oral testimony of a promise or statement made by the deceased person, is not restricted to actions begun after the decease, but applies to an action begun during the lifetime of the deceased, and in which, after his death, the administrator of his estate appears and takes upon himself its defence.</p> <p>The St. 1898, c. 535, relative to the declarations of deceased persons, does not limit the operation of St. 1896, c. 445, relative to evidence in actions against the representatives of deceased persons.</p> <p>The personal representative of a deceased client may exercise in favor of the client’s estate the right to waive the privilege which the client had in his lifetime for his own benefit, and may call upon the latter’s attorney to disclose as a witness communications made to him by the client</p>

<p> Expert'Testimony. </p> <p>In an action for the conversion of a lounge, evidence having been introduced as to its construction and age, a witness who has qualified as an expert may, to the question, “ What would be the fair market value of that sofa in July, 1897 1 ” answer, “ To anybody that liked antique furniture it was worth fifty dollars, but if it was sold at auction, or to a person who did n’t care for antique furniture, it-would be probably from fifteen dollars to twenty dollars.”</p>

<p>Contract, in which chattels were attached as the property of the defendants, and the mortgagee of the chattels was summoned as trustee under Pub. Sts. c. 161, § 79, which provides that personal property of a debtor subject to a mortgage and in the possession of the mortgagor may be attached as if unencumbered and the mortgagee or his assigns summoned as trustee. The answer of the alleged trustee disclosed him to be in actual possession as mortgagee of the chattels for the purpose of foreclosure. In the Superior Court the plaintiff filed a motion for a trial by jury and the framing of issues as to the validity of the mortgage under Pub. Sts. c. 161, § 81, which motion was denied, and the trustee was discharged.</p> <p>The plaintiff appealed from the decree denying the motion, and also from the decree discharging the trustee.</p>

Appeal to the Superior Court, from a decision of the respondents on a petition for an abatement of taxes assessed upon the petitioner’s property in Cambridge. Trial, without a jury, before Bell, J., who found for the petitioner; and, with the consent of the parties, reported the case for the determination of this court. The facts appear in the opinion.

<p>Personal Injuries — Railroad—Action— Contract — Statute.</p> <p>A brakeman in the employ of a railroad corporation, while sitting on the top of a fruit car with bis legs hanging over the side, had his head struck by the cornice of a roof over a station platform about one foot and five inches from the line of the nearest rail, and about fourteen and a half feet above the rail, and was injured. He knew that the car was larger than usual, that there was this roof at this place, that there was danger from it, and that he was approaching the place. By his written application for employment he undertook as soon as possible to make a careful examination of all things near the tracks so that he might understand the dangers attending them. Held, that he could not maintain an action against the corporation for his injury.</p> <p>An agreement, in a written application to a railroad corporation for employment, to make as soon as possible a careful examination of all things near the tracks, so that the dangers attending them may be understood, is not contrary to St. 1894, c. 508, § 6, (Pub. Sts. c. 74, § 3,) forbidding an employer to contract with an employee for exemption from liability for "injury.</p> <p>The provision of Pub. Sts. c. 112, § 160, requiring railroad coporations to maintain guards at every structure, any portion of which crosses the railroad above the track, does not apply to the cornice of a roof over a station platform about a foot and a half from the line of the nearest rail and about fourteen and a half feet above the rail.</p>

<p>Perjury — Indictment — Witness.</p> <p>If the defendant in a criminal case offers himself as a witness, he may he asked if he has ever been arrested before the arrest on the charge for which he is then on trial, if he has ever been convicted of any offence, and if he has ever served a sentence in prison or for a crime; and if he answers such questions falsely, he may be convicted of perjury.</p> <p>An indictment for perjury, in answering falsely certain questions asked for the purpose of showing a previous conviction of crime, need not set fortli that when the questions were asked a copy of a previous conviction had been offered in evidence or was in the possession of the District Attorney.</p> <p>Where the record only in a criminal case is before this court on appeal, no question whether the verdict was against the evidence is open.</p>

<p>Foreign Insurance — Constitutional Law — Statute.</p> <p>The Legislature has power to prohibit agents of foreign insurers and brokers from soliciting or acting in regard to foreign insurance, in this Commonwealth, even though they shall agree with the assured that they are his agents.</p>

<p>Nullity of Marriage — Fraud.</p> <p>A woman, whose husband, by whom she had a child, had procured a divorce from her in another State, became a bona fide resident of this Commonwealth, where she became pregnant by another man. In a conversation between them respecting marriage, she represented to him that she was unmarried, that she had never been married, that she had never before been in the family way, and that she had never had sexual intercourse with any one other than him. She gave birth to a child, of which he acknowledged the paternity, and afterwards they were married here. Subsequently he learned of the earlier marriage and that the offspring was living, but, upon being told that the first husband had died before her second marriage, he continued to cohabit with her. Later, upon learning that the first husband was living and had been divorced from his wife, he ceased to cohabit with her, and brought a libel for a sentence of nullity of the marriage. Held, that no such fraud had been practised upon him as to entitle him to a decree.</p>

Scire facias, on a judgment of the Superior Court, against the administrator of the estate of Hannah Kelley, who had been summoned in the original action as trustee of Richard L. Kelley, an heir at law of the intestate, and defaulted.

Information, in the nature of a quo warranta, to try the respondent’s title to the office of constable of the town of Avon. Hearing, before Morton, J., who filed a paper called a “ Memorandum of Decision,” which concluded as follows: “I find on the evidence before me that the respondent was duly elected, and I think that the petition should be dismissed.

<p>Bill in EQUITY, asking for the cancellation and delivering up of a promissory note and mortgage of personal property securing the same, given by the plaintiff to the defendant’s intestate, on the ground that no consideration was ever received by the plaintiff, and that the conveyance was in effect a trust transaction.</p> <p>At the trial in the Superior Court, before Lilley, J., there was evidence of several witnesses tending to show that the note was without consideration, and, against the defendant’s objection and exception, the following evidence was admitted: “ I asked Miss Dunn if it was a mortgage she had made out. She said, ‘ Oh, no; it is just simply a matter of form between she and I. There has no money passed between us, simply I am to help her out in the case of her death,’. ” the contention being that the note and mortgage were given to the intestate for the purpose of giving her such a hold on the property and business as would allow her to sell the same on the death of the plaintiff and give the proceeds to her niece.</p> <p>The judge found that the note and mortgage were without consideration, and only constituted the intestate a trustee to manage the property in the event of the plaintiff’s death, and entered a decree that the note and mortgage be cancelled and delivered up to the plaintiff. The defendant appealed to this court.</p>

<p>Tort, for personal injuries. Trial in the Superior Court, before Blodgett, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

Petition, to enforce a mechanic’s lien, under Pub. Sts. c. 191. Trial in the Superior Court, without a jury, before Dewey, J., who allowed a bill of exceptions, in substance as follows. The petitioner, in September, 1897, made an oral contract with the respondent to do all the carpenter work on the respondent’s building.

<p>Conversion — Attachment — Trial — Evidence.</p> <p>In an action against an officer for the conversion of personal property, which either he personally removed or permitted to be removed while he held it under attachment, to a house where the plaintiff had no rights, it appearing that upon two occasions when there was no attachment upon the goods the plaintiff ineffectually demanded a return of them, the defendant is not entitled to a ruling that if “ at the dissolution of the attachment the keeper was removed, and the goods were left where they were found when the attachment was made, the defendant is not liable,” or that he “ was not bound, upon dissolution of the attachment, to do anything more than to remove his keeper and leave the goods where he found them.”</p> <p>After the defendant’s counsel, in an action against an attaching officer for the conversion of personal property, had cross-examined the plaintiff for about two hours as to the general evidence, and had also examined her in detail in regard to many items of the declaration in such a way as to indicate that little if anything more of importance could be elicited by further examination, the judge informed the counsel that only one hour more would be allowed him for the cross-examination of that witness. Held, that this direction appeared to be entirely reasonable.</p> <p>Upon the facts of this case, which was an action for the conversion of a quantity of furniture in a lodging-house, the witnesses properly were allowed to testify to its value as a whole.</p> <p>The declarations and conduct of a witness, in an action for the conversion of personal property, when trying to sell the property, which tend to contradict his testimony in regard to its value, are competent.</p>

<p>Petition, to enforce a mechanic’s lien, under Pub. Sts. c. 191, for labor performed upon land in Malden. Trial in the Superior Court, without a jury, before Hardy, J., who found for the respondents; and the petitioner alleged exceptions. The facts appear in the opinion.</p>

<p>Evidence — Private Conversations between Husband and Wife — Statute.</p> <p>The St. of 1896, c. 445, entitled “ An Act relative to evidence in actions against the estates of deceased persons,” does not repeal the law as it previously stood as to private conversations between husband and wife.</p>

Petition, by creditors of the Nortlirup-Braslan-Goodwin Company, an insolvent corporation, organized under the laws of the State of Illinois, and having its usual place of business in the city of Chicago, in said State, praying to have the respondent adjudged in contempt for refusing to answer interrogatories and to produce certain documents.

<p>Loss of Life — Street Railway— Unfitness of Servants — Passengei-Negligence. '</p> <p>In an action against a street railway corporation under St. 1886, c. 140, for causing the death of a person who, while in the act of boarding a car, which had stopped, was thrown to the ground by reason of the conductor starting the car too quickly, the judge instructed the. jury, as requested, that there was no evidence that the deceased lost his life by reason of the unfitness of the defendant’s servants, and then added, “ except so far as you may think their conduct on this occasion shows unfitness.” Held, that the defendant had good ground of exception.</p> <p>A person is a passenger if a street car has stopped for him and he is in the act of getting aboard when the car starts.</p> <p>If a person first attempts to get upon a street car after it has started, the question whether he was negligent is for the jury, in an action for injuries caused by being thrown from the ear.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ by reason of the defendant’s alleged negligence in the piling of a lot of lumber. The declaration contained two counts, the first at common law, and the second under the employers’ liability act, St. 1887, c. 270. Trial in the Superior Court, before Hardy, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Tort, for injury to the plaintiffs’ building by the blasting of rocks on adjoining land of the defendant. Trial in the Superior Court, before Bond, J., who, at the close of the evidence, refused to give the following rulings requested by the defendant, and he excepted. 1. Upon all the evidence in the case the plaintiffs are not entitled to .recover as matter of law. 2. The owner of real estate is not liable for the acts of an independent contractor under the conditions testified to, upon all the evidence in this case, and a verdict should be ordered for the defendant as matter of law.</p>

<p>Mrs Insurance — Declaration — Demurrer — Assent of Insurer to Removal of Property.</p> <p>The ground that counts of a declaration are inconsistent with each other is not the same as the ground of misjoinder of counts, and Pub. Sts. c. 167, § 67, do not apply.</p> <p>The first count of a declaration alleged a written policy of insurance upon goods in a certain place, with a condition against removal, a waiver of the condition, a removal of the goods to another place consented to, and a loss. The second count alleged a “ surrender ” of the policy at the defendant’s request that it might be modified so as to cover the goods in the new place, an agreement to. insure until the policy was modified, and a loss before the modification was made. The third count alleged a waiver of the condition against removal and an agreement that “ until modification thereof ” the policy should attach to the goods until all stored in their new place, and a further agreement thereafter to attach a permanent modification to the policy; and that the policy was delivered to the defendant, which, in violation- of its agreement, modified the policy so that it covered a part only of the goods, and thereby cancelled the policy as to the other goods. Held, on demurrer, that the counts were not inconsistent.</p> <p>Upon an appeal from the judgment of the Superior Court on a demurrer to a declaration, this court will not affirm the judgment upon a ground contended for different from that assigned for the judgment, without giving the plaintiff the same opportunity to amend his declaration which he would have liad in the Superior Court, if the argument addressed to this court had prevailed there.</p> <p>It is not necessary that the declaration in an action upon a policy of fire insurance in the standard form should allege that the assent of the defendant to the removal of the insured property was in writing.</p>

<p>Estates of Persons Deceased — Administrator and Heir — Decree against Latter as Adjudication against Former — Answer.</p> <p>A decree, dismissing a suit in equity brought by the heirs of a deceased person to set aside a contract made by him, on the grounds of insanity and fraud, to which suit the administrator of his estate is not a party, is not an adjudication -which will bind the administrator, in an action against him upon such contract, the defences to which are insanity and fraud; and the pendency at that time of the suit in equity is not a material fact to be alleged in the answer to the action, and the allegation cannot affect in any way the defendant’s rights.</p>

<p>Mechanic's Lien — Time of Filing Statement of Lien — Certificate and Conduct of Register of Deeds.</p> <p>A person went to the registry of deeds with a statement of a mechanic’s lien to be filed, within one hour after the usual time for closing the office on Saturday afternoon, which was the last day of the time allowed for filing such statements by Pub. Sts. c. 191, § 6. He got into the office after it was closed, tendered the statement and the fee to the register, who was there, hut refused to receive it. By tlie register’s suggestion, he put the statement and fee into an envelope which the register gave him, went outside of the office and pushed the envelope under the closed door, through the glass panel of which he was watched by a clerk. The envelope was on the register’s desk on Monday morning, and the statement was marked as filed on that day. Held, that the statement was filed on Saturday afternoon.</p> <p>It seems, that the certificate of a register of deeds is conclusive as to the time of filing an instrument, hut may be amended by him.</p>

<p>Assessment Insurance — “ Accrued Claims ” —Emergency Fund.</p> <p>A person was insured in an assessment insurance company against loss of time by reason of accidental bodily injuries at a certain rate per week, or, in case of death resulting from the injuries within ninety daj'S thereafter, for a stated sum. He received accidental bodily injuries on June 28, and died as a result thereof on August 31; a receiver of the company having been appointed in the interim on August 12, on a bill filed August 9. Section 14 of St. 1890, c. 421, provides that in case of insolvency any unexpended portion of the emergency fund is to be first applied in the payment of “ accrued claims.” Held, that the claim for death was not an accrued claim, and that claims for disability were divisible and had accrued only to the time of the filing of the bill.</p>

<p>Petition in equity, to the judge of the Probate Court, praying that the respondent’s appointment as administratrix of the estate of Oliver S. Foster be declared void, the letter of administration cancelled, an injunction issued, and a receiver or some other similar official appointed. The respondent demurred, assigning as ground therefor that “ the petitioners have a plain, adequate, and complete remedy at law by petition to vacate said appointment and said decree of the Probate Court appointing the respondent administratrix is conclusive, and cannot be set aside in equity.” The demurrer was sustained, and the petitioners appealed to this court. The decree sustaining the demurrer was affirmed, the bill was dismissed without prejudice, and the case was remitted to the Probate Court for further proceedings. The petitioners appealed to the full-court.</p>

<p>Labor performed on Public Building — Statute — Constitutional Law.</p> <p>The St. of 1892, c. 270, entitled “ An Act relating to the payment for labor performed on buildings or public works owned by cities or towns,” is constitutional.</p>

<p>Indictment — Exceptions — Habitual Criminal •— Continuous Imprisonment under previous Commitments.</p> <p>Exceptions to the refusal to give rulings requested, which relate to the duty of the jury upon all the evidence, will be overruled, if the bill of exceptions states no evidence.</p> <p>It is no objection to the sufficiency of an indictment under the habitual criminal act, St. 1887, c. 485, that the sentence imposed upon the second previous conviction alleged in the indictment took effect from the expiration of the sentence imposed upon the first previous conviction alleged, so that there was no interval of liberty between the two terms of imprisonment.</p>

<p>Land Damages — New Trial — Photograph.</p> <p>At the trial of a petition for an assessment of the damages caused hy taking land near the junction of two streets in a city, the evidence was conflicting as to whether or not the streets were on the same level at such junction. After verdict, the petitioner moved for a new trial, on the ground of newly discovered evidence, and filed with the motion a photograph showing the grades of the locality in question, accompanied by affidavits of the photographer and a civil engineer, stating that the photograph was a correct representation of the locality, and that the grades were on the same level; also other affidavits, stating.that the buildings on the petitioner’s land had been removed before the time when an expert witness for the respondent testified at the trial that he was inside of them. The judge found that the photograph was discovered after the trial, and that the expert witness was mistaken in his testimony as to when he saw the buildings; and denied the motion. Held, that it did not appear that the judge exceeded his powers in refusing a new trial.</p>

<p>Personal-Injuries — Due Care — Assumption of Risk.</p> <p>At- the trial of an action for personal injuries it appeared that workmen who were fitting up the defendant’s vessel with sheep-pens had placed an unfinished trough near a hatch, and that the plaintiff, who was coming up a ladder, took hold of the trough on reaching the hatch and the trough yielded and fell. The trough did not appear to have been put there for the use he made of it. If the evidence showed that the plaintiff’s ordinary mode of egress was barred, which was doubtful, it did not appear that he could not get out without using the trough as he did, and even if that had appeared, still he knew that the work was unfinished. Held, that the plaintiff relied upon the trough at his own risk.</p>

<p>Forcible Entry and Detainer — Guardian ad litem — Discontinuance — Eight of Administrator to maintain Action—Mortgage—Foreclosure—Evidence —' Payment — Limitation of Action — Instructions.</p> <p>If, while a case is pending in a police court, the attorney for the other defendants is appointed guardian ad litem to represent the interest of an insane defendant, in the absence of anything appearing to the contrary, it may fairly be assumed that in the proceedings in an appellate court he was acting in the same capacity’, • so far as the interests of that defendant were involved.</p> <p>It'is within the discretion of the judge, in an action on Pub. Sts. c. 175, for forcible entry and detainer, to allow the plaintiff to discontinue as_ to one of the defendants who is shown by the evidence not to have resided on the premises for several years before the trial.</p> <p>The administrator de bonis non of the estate of a mortgagee of land may maintain an action on Pub. Sts. c. 175, for forcible entry and detainer, when the mortgage has been foreclosed by entry without the exercise of a power of sale.</p> <p>A mortgage deed more than thirty years old is admissible in evidence without proof of its execution, although a witness is living and in court, and without proof of possession under it.</p> <p>Upon a witnessed mortgage note, more than twenty years after it was due, was an indorsement signed by the payee of the receipt on a day named of a note for a certain sum, “ being balance of the within note and interest to date ”; and a new note bearing that date for the sum so named was signed by the mortgagor, payable in six years to the mortgagee, and witnessed. The first note showed no further payments, but there were two indorsements on the second note, the last one being within twenty years of the date of an action on Pub. Sts. c. 175, by the mortgagee to recover possession of the premises. As to this last indorsement the payee’s daughter testified that she made it in the maker’s presence at the request of her mother, to whom the money was claimed to have been paid, the money being then on a table; but she did not testify to the amount of the money, and there was no other evidence that the maker knew the contents of the paper on which the indorsement was made, or that he ever saw it after it was made. A computation of the sum due on the first note showed that the sum named in the last indorsement thereon was a fair statement of the balance; and the second note and the mortgage were kept by the mortgagee. Held, that the indorsement on the original note was rightly admitted in evidence; and that the judge was justified in finding that the second note was a renewal of the balance due on the first note, and that the payment last indorsed on the second note was made in part payment of the mortgage debt.</p> <p>After an entry to foreclose a mortgage, the mortgagor and those claiming under him become tenants at sufferance of the mortgagee, and in the absence of any evidence of an adverse holding they are assumed to hold under him, and their possession is his during the three years until the completion of the foreclosure.</p> <p>An action on Pub. Sts. c. 175, for forcible entry and detainer, brought by the administrator of the estate of a mortgagee of the land before the expiration of three years from the foreclosure of the mortgage, is within the time prescribed by § 10.</p> <p>A request for a ruling, which is not applicable to the facts appearing in the exceptions or to the state of the case as finally submitted to the court, is rightly refused.</p>

<p>Contract, upon an account annexed, to recover twenty dollars for services in singing at a funeral. Trial in the Superior Court, before Stevens, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Gustave W. Ulmer, one of the plaintiffs, testified that the plaintiffs formed a male quartette called the Dalhousie Quartette ; that on October 20, 1897, the defendant called at the witness’ house and informed him of the death of one Trow-bridge, and wished the services of the quartette at her funeral, which was to take place on October 21, at three o’clock P. M.; that the defendant asked the witness if he knew where he, the defendant, lived, and that witness said that he did; that the defendant told the witness that Mrs. Trowbridge had left money, and that the defendant would be the administrator of her estate; and that the plaintiffs were late at the funeral, owing to a mistake as to the house, not arriving until twelve minutes past three o’clock, but performed the services declared for.</p> <p>The defendant testified that Mrs. Trowbridge had been for some years a member of his household; that on October 20 he saw the plaintiff Ulmer at his house and informed him of Mrs. Trowbridge’s death, and that the services of the quartette were wished for at the funeral; that he asked Ulmer what price was charged by the quartette, and was told twenty dollars; that he told Ulmer that Mrs. Trowbridge had left some estate and he should probably be administrator, and also told Ulmer to send the bill to the estate of Mrs. Trowbridge (which last statement Ulmer denied), and further told Ulmer where the defendant lived; that the quartette were late in arriving at the house, not getting there until twenty-five minutes past three o’clock, and were all out of breath, as they had run to get to the house, and the first song was poorly sung; that on December 18, 1897, he sent to Ulmer a check for fifteen dollars for the services of the plaintiffs, signed by him personally, and indorsed on the margin of the face, “ Adm’r of the estate of S. H. T.,” inclosed in a letter stating that it “ is all I think you are entitled to after we had to keep everything waiting so long for you ”; that this check was returned to the defendant by Ulmer, who wrote demanding payment of twenty dollars; that the matter was placed in the hands of counsel, between whom and the defendant considerable correspondence passed; and that the defendant was duly appointed administrator of the estate of Mrs. Trowbridge.</p> <p>The defendant asked the' judge to rule that there was no contract between the plaintiffs' and the defendant; but the judge declined so to rule.</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

<p>,Trust — Patent — Assignment—United States Statute—“Legal Representatives ” — Contract — Equity — Demurrer.</p> <p>A., the owner of a patent, assigned it, together with all his right and title in and to any claims for past infringement thereof, to B., who prosecuted against certain agents of the United States a suit in his own name in the Circuit Court and obtained a decree on the merits ordering an accounting, no question having been raised as to the validity of his title under the assignment. Afterwards A. executed a contract with B. and C., an attorney, to share equally with them the sum realized from the prosecution of the claim after deducting all expenses' incurred in such prosecution. A. died, and his daughter, who was appointed administratrix of his estate, contracted with B. and C. that if they would continue to prosecute the claim she would, transfer the treasury warrant for the payment of the proceeds as soon as it should be issued, to joint trustees to collect the same and make distribution. Subsequently an act of Congress was enacted, authorizing the Secretary of the Treasury to pay to the “legal representatives ” of A. a certain sum as “ compensation in full for the use by the United States ” of the patented invention, “ as appears in the findings of law and of facts made by the United States Circuit Court ” in the suit above named. B.’s administrator and C. brought a bill in equity against A.’s administratrix to enforce a trust in this money. Held, on demurrer, that the bill could be maintained.</p> <p>In a bill in equity, by the assignee of a patent and of all right and title in and to any claims for past infringement thereof, to enforce a trust in a sum of money directed by a statute of the United States to be paid for such infringement, it is not necessary to annex a copy of the assignment nor to state the substance of its provisions in detail, but it is sufficient if the plaintiff states that he is the owner of an assignment in writing from the patentee of all his right, title, and interest in and to any and all claims for past infringement, and shows that the fund was appropriated by Congress as compensation for an infringement of the patent.</p>

<p>Petition" to the Probate Court under St. 1898, c. 65, entitled “ An Act relative to the distribution of trust estates.” Hearing before Hammond, J., who entered a decree, and an appeal was had to the full court. The facts appéar in the opinion.</p>

<p>Petition for a writ of certiorari to quash an assessment upon the petitioner’s property in Brockton for the use of a common sewer. The respondents demurred to the petition. Hearing upon the petition and demurrer, before Barker, J., who, at the request of the parties, reserved the case for the consideration of the full court; such order to be made as law and justice might require. The facts appear in the opinion.</p>

<p>Abolition of Grade Crossings — Alteration of Grade — Discontinuance of Way— Taking of Land — Statute — Damages.</p> <p>A gas company cannot maintain a petition under St. 1890, c. 428, § 5, as amended by St. 1891, c. 123, § 1, relating to the abolition of grade crossings, against a town to recover the expense incurred by the petitioner in taking up and relaying its main pipe in a street, the grade of which has been altered by proceedings under those statutes.</p> <p>Under St. 1890, c. 428, § 5, as amended by St. 1891, c. 123, § 1, relating to the abolition of grade crossings, and providing for the recovery of damages sustained by an abutter on a way by the discontinuance of such way “ to the same extent as damages are now recoverable by law by abutters on ways discontinued by towns,” a gas company, which owns land abutting on a street discontinued by proceedings under those statutes, cannot recover against the town, if it is not - shown that the loss of the right to keep its main pipe in the street diminished the valine of its land; but it may recover against the railroad corporation the value of so much of the pipe as lay in its land which was taken by the proceedings in question.</p>

<p> Continuing Bond. </p> <p>A bond, after reciting that the obligor had been chosen by the association as treasurer, and- as such would receive the property of the association and was bound to keep accurate accounts of money in his hands and to be received by him as treasurer, declared that if he “shall well and truly perform and singular the duties of treasurer of said association for and during the term for which he lias been elected and during such further time as he may continue to hold said office and until he shall deliver all the property which he may receive as such treasurer to his successor in office, or to such other person or persons as said association or its authorized officers may direct according to the provisions of the constitution, by-law, rules and regulations of said association now existing or which may be by said association adopted, then this obligation shall be void; otherwise to be and remain in full force.” The election was for one year, and by the by-laws the office of treasurer was an annual one. At the time the bond was given, the obligor was holding office under his first election. Held, in an action on the bond, that the phrase “ during such further time as he may continue to hold said office ” must be held to apply to such further time beyond the term of one year as the principal might hold the office by virtue of his first election, and that it was not intended to cover the time under which be might hold office under any subsequent election.</p>

<p>Tax — Abatement — Appeal — Objection to Jurisdiction — Commissions--Law and Fact — National Bank —- Value of Shares — Evidence — Estoppel.</p> <p>It is no bar to the jurisdiction of the court that an appeal to. the Superior Court, under St. 1890, c. 127, for an abatement of taxes, was entered less than thirty days after the assessors had given the appellant notice of their decision under § 2, providing that the entry shall be made “ at the return day first occurring not less than thirty days after ” such notice of the decision; nor that the appeal was not tried at the first trial term, as provided in § 4, if the objections are not seasonably taken.</p> <p>A commissioner appointed under St. 1890, c. 127, § 5, upon an appeal to the Superior Court for an abatement of taxes assessed on shares of a national bank, is authorized to find the fair cash value of such shares, and his judgment in matters of fact is not open to revision by this court on exceptions.</p> <p>An expert may testify to value, although his knowledge of details is chiefly derived from inadmissible sources, but the fact that he may use hearsay as a ground of opinion does not make the hearsay admissible.</p> <p>The excess of the assets over the liabilities of a national bank at a stated time is of no importance in determining the fair cash value of its shares for the purposes of taxation, where there is sufficient evidence of a sum for which the shares could have been sold on that date.</p> <p>A national bank, at the trial of a petition for the abatement of a tax assessed upon its shares, supported the report of a commissioner that the fair cash value of its shares for the purposes of taxation was their market value as found by him. Subsequently the bank voted to petition for an abatement of the tax for 1897 upon the basis of the difierence between the assessed valuation and the fair cash value of its shares based on the cash sales on or about May 1 of that year. The assessors had requested the bank to submit a statement of the price at which its shares were actually sold at the last sale prior to May 1, mentioning that the last quoted sale before that day was at a certain rate, to which the bank made no reply. Held, that the bank was not estopped to set up that the fair cash value of its shares for the purposes of assessment was less than the cash sales on or about May 1, 1897.</p>

Indictment, for adultery. At the trial in the Superior Court, before Stevens, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.

<p>Equity Jurisdiction of the Prohate Courts — Right of Trustees to have Accounts adjusted in Prohate Court.</p> <p>The equity jurisdiction given by statute to the Probate Courts over all cases relating to trusts created by will and the termination thereof is a concurrent jurisdiction shared by the Superior Court and by this court; and while the fact that in the records of the Probate Courts are found the wills under which such trusts arise and the inventories and accounts of the trustees, with their official bonds, the proceedings under which they were appointed and other matters affecting the trust, may have been a reason for conferring this concurrent jurisdiction, it does not enlarge that jurisdiction or enable those courts to entertain any bill which could not also be entertained by the Superior Court or by this court; nor does it enable a Probate Court upon its equity side to do any of those things upon a bill in equity with reference to such a trust which can be done by a Probate Court under its probate jurisdiction only.</p> <p>Trustees appointed by a Probate Court, as well as guardians, administrators, and executors so appointed, have a right to have their accounts adjusted and the amounts due to or from them as trustees determined in the Probate Court, on its probate side and in the usual probate proceedings, and they cannot be compelled first to render their accounts or made to pay over the fund, by proceedings in equity or at law, save after and in pursuance of such an adjustment and determination on the probate side of the court.</p>

<p>Personal Injuries — Master and Servant — Action — Evidence.</p> <p>In an action against an electric corporation for personal injuries occasioned to the plaintiff by being struck in the eye, as he was driving along a street, by a burnt carbon thrown by A., who, as a servant of the defendant, had removed it from a lamp for the purpose of replacing it by a new carbon, A. testified that he ordinarily dropped the disused pieces of carbon somewhere near the base of the post on which the lamp was; that if there was any good reason why he could not drop them there, he tossed them out into the street; and that he intended to be careful not to drop them on a passer by. He further testified as follows: “I wanted to attract his attention so as to speak to him, and I threw the carbon at the team so as to attract his attention, so that I might speak to him, and not for any business connected with the company.” Held, that it was a question for the jury whether the explanation given by A. of the purpose which he had in throwing the carbon was true or not. Held, also, that the evidence of a witness, who testified that A., when taxed by the plaintiff with having through carelessness injured his eye, said, “I am sorry; it was an accident; I did n't mean to do it,” was rightly admitted.</p>

<p>Bill in equity, filed in the Superior Court, to have a trust declared for the benefit of the plaintiff in certain property devised by his father to the first named defendant. The case was referred to ¡a master, and afterwards was recommitted to him. A decree was entered, overruling the plaintiff’s exceptions to the original and supplemental reports of the master, confirming the reports, and dismissing the bill; and from the order of recommittal and the decree the plaintiff appealed to this court. The facts appear in the opinion.</p>

<p>Tort, to recover the amount paid by the plaintiff upon a judgment obtained against it by one Blessington in an action for personal injuries caused by a defect in a highway. Trial in the Superior Court before Bell, J., who directed the jury to return a verdict for the plaintiff; and the defendants alleged exceptions. The facts appear in the opinion.</p>

<p>Personal Injuries — Master, and Servant — Assuinirtion of Risk — . Action — Evidence.</p> <p>A person, who has been employed in one die-shop for eleven months, during which be was engaged in grinding for one-third of the time, including, during a part of that time, “ truing ” the grindstone, and who has worked for the defendant for eight months, and during that time was employed in grinding dies and " truing” the grindstone whenever there was any grinding to be done, will be held to have assumed the risks arising from the position of the stone in relation to the rest which supported the “ truing iron ” and from the facts that there was a spring to the rest, that the straps of the groove in the top of the timbers were loose, that the threads of the nuts screwed on the tops of the bolts attached to the ends of the rest were worn, and that he was furnished with a gas pipe in place of a quarter-inch wire, or a roll, for use in “ truing ” the grindstone, and such a person cannot maintain an action against his employer for injuries sustained, while “ truing ” the stone, by having his hand carried with the point of the pipe down between the rest and the stone, though there is evidence that he is not an experienced grinder.</p> <p>The facts, that when a person suing for an injury, who previously had been employed to work on a grindstone, was employed a second time, four months after his first employment terminated, he was employed not to grind but to help the finishers, and that it was not until three months later that he was set to grinding, do not take his previous experience out of the ease ; and the danger arising from the stone being swung over five inches above the beams on which the rest supporting the die travelled, is an obvious risk of his employment assumed by him. -</p> <p>In an action for personal injuries sustained while working on a certain machine where the above facts were disclosed, the question whether a person who formerly worked on the machine did or did not do something for the purpose of making it safer when using it, is immaterial and properly excluded.</p> <p>Where the risk arising from the position of a machine is obvious and must be held to have been assumed by a workman using it, it is of' no consequence that the business might have been conducted more safely by his employer.</p>

Tort, for personal injuries. The plaintiff contended that on July 18, 1894, while descending the stairs in a building owned by the defendant he was precipitated to the floor below and sustained injuries by reason of the negligence of the defendant, his agents atid servants, in permitting a tread on the stairs to become defective and unsafe.

Contract for money had and received. Trial in the Superior Court before Braley, J., who reported the case for the consideration of this court in substance as follows.

<p>Personal Injuries — Railroad — Due Care — Action — Evidence.</p> <p>A woman, having good sight and hearing, and intending to take a train for another station, attempted in the daytime to cross from one side of a railroad station to the other, where she could take the train, from which station there was an unobstructed view of the track to the south for nearly half a mile, and was struck by an express train coming from the south which did not stop there, and injured. In an action for her injury, she testified that she looked up and down the track, but did not see or hear anything of the train which struck her. Held, that she failed to show that she was in the exercise of due care; and that the fact that the baggage master at the station told her that the train which she intended to take would be along in six minutes and to go across to the other side, did not justify her in assuming that she could cross safely.</p> <p>In an action against a railroad corporation for injuries caused by being struck by a train while crossing the tracks from one side of a station to the other, in which the plaintiff testifies that he noticed a freight train standing on the tracks, it is within the discretion of the judge to exclude evidence as to the situation of freight cars at other times.</p>

<p>Petition to the Superior Court for a jury to assess the damages caused by the taking by the Board of Metropolitan Sewerage Commissioners, in behalf of the Commonwealth, under St. 1895, c. 406, of the right to maintain a sewer through the petitioner’s land in Dedham. At the trial before Fessenden, J., the jury returned a verdict for the petitioner; and the respondent alleged exceptions to the admission of certain evidence, the nature of which appears in the opinion.</p>

<p>Personal Injuries — Master and Servant — Evidence — Trial.</p> <p>In an action for personal injuries sustained by the plaintiff while employed in the defendant’s mill, if the plaintiff testifies that a certain passageway was not a safe and convenient way for use, and the defendant introduces evidence to the contrary, it is not open to the plaintiff to contend that such evidence should be limited to those witnesses who were present while he was employed in the mill, if there is no evidence of any change in the general conditions and character of the way from the time the machinery was placed in the mill to the time of the plaintiff’s injury, which occurred within a few months afterwards.</p> <p>If evidence on a question is in a case without objection, the judge is not bound to limit its effect to a question which is a different issue.</p> <p>A party is not entitled to single out some of several disputed facts in a case hnd ask an instruction to the jury upon them.</p> <p>A request for a ruling based upon a fact of which there is no evidence, or assuming a fact which is in dispute, is rightly refused.</p>

<p>Contract. The declaration, as amended, contained four counts, each of which alleged in the opening sentence that the defendant made to the plaintiff “ a bond, a copy of which is hereto annexed marked ‘ A,’ in the action of replevin hereinafter referred to.” The first and third counts each alleged also that, on September 5, 1894, Catherine Riley, as principal and the defendant as one of the sureties “ gave and entered into and delivered to the plaintiff a joint and several bond, a copy of which is hereto annexed marked ‘ A,’ with condition,” etc., and that the condition had been broken ; and the second and fourth counts contained similar allegations, but described the copy of the bond annexed as marked “ B.” _ Annexed to the declaration were copies of two bonds precisely alike and marked respectively “ A ” and “ B.”</p> <p>Trial in the ¡Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance as follows.</p> <p>On September 4, Í894, Michael Tally brought an action by writ returnable to the Police Court of Lowell, against John Lamb, and the plaintiff in the present action, who was a constable of Lowell, to whom the writ was delivered for service, made an attachment thereon of a horse and wagon.</p> <p>On the same day Edward N. Wood and George C. Evans, copartners as E. N. Wood and Company, also brought an action, by writ also returnable to the same court, against Lamb, and the present plaintiff attached the same horse and wagon on the writ.</p> <p>On the following day, Catherine Riley, claiming to be the owner of the horse and wagon, procured two replevin writs to be issued from that court for the purpose of regaining possession of the property from the present plaintiff. Both of these replevin writs were delivered for service to George F. Stiles, a deputy sheriff, who, before taking the property from the present plaintiff, took from Riley the two bonds in suit. The horse and wagon were then taken by Stiles, and delivered into the possession of Riley, or her agent.</p> <p>It appeared in evidence that judgments were recovered by Tally and by E. N. Wood and Company against Lamb, which have never been satisfied in any part, and that the two replevin suits were both prosecuted to final judgment, the judgment in each being for a return of the property, with damages for its detention, which judgments have never been satisfied.</p> <p>The plaintiff testified as a witness at the present trial, but, except only by directly contradicting the terms of both of his returns upon the two writs, in respect both to the order of priority of the two attachments of the horse and wagon, and also in respect to the time when the horse and wagon were taken from him under the writs of replevin, was unable to specify in any way which one of the two bonds applied to either of the two replevin writs.</p> <p>Stiles also testified as a witness, but, except, only by directly contradicting the terms of both of his returns upon the writs of replevin, in respect to the approval of the sureties upon the two bonds, and excepting further by directly contradicting the terms of the returns of the present plaintiff, in the respects as above mentioned, upon the two writs, was unable to specify in any way which one of the bonds applied to either of the two replevin writs. The defendant contended that the plaintiff could in no event recover upon more than one of the bonds; that in order to prevail upon that, he must show by legal proof a continuous relationship, the same at the time of trial as at the time of the taking on replevin, existing between one of the two bonds to the exclusion of the other, and one of two replevin writs to the exclusion of the other; and that legal proof of such relationship could not be made in contradiction of the returns of the officer upon the replevin writs, so far as the returns bore upon the subject of the relationship.</p> <p>Upon the issue as to the relationship at the time of the original taking on replevin and at the time of the trial, between the bonds and writs, Stiles was asked, on cross-examination, to indicate which of the two bonds he accepted and relied upon when making the replevin upon each of the two writs, and thereupon he connected with one replevin writ a bond approved by himself as being the bond given and accepted in support of that particular writ; and with the other writ a bond approved by the attorney of the defendant named in the replevin writ as the one given and accepted in support of that writ.</p> <p>The judge thereupon, in order to avoid confusion ordered the clerk to permanently attach to each writ as indicated by Stiles the bond which the latter designated as belonging with it. This the clerk then did, by pasting upon each of the replevin writs the bonds so associated by Stiles in his evidence. No objection was made by the defendant to such order of the court, or of the clerk’s complying therewith, and the two writs, each with the bond so attached thereto by the clerk, were given to the jury without objection upon their retiring to consider their verdict.</p> <p>There was no other evidence in the case to distinguish which of the two bonds applied to each writ of replevin. It was undisputed that both of the bonds were executed by the defendant at the same time and before the same had been accepted by Stiles.</p> <p>Upon the close of all the evidence, the defendant asked the judge to rule that the plaintiff, by reason of his inability to show to which of the replevin writs either of the bonds related except by testimony varying the terms of the returns upon each writ, had failed to prove such a breach of the conditions of the bonds as to entitle him to recover, and that therefore a verdict should be ordered for the defendant. The judge declined so to rule.</p> <p>The trial of the case proceeded until the close of the evidence upon the assumption, so far as the defendant was concerned, that a recovery was sought upon one only of the bonds, and after the close of the evidence the defendant requested the judge to require the plaintiff to elect upon which of the replevin writs he relied; but upon the plaintiff informing the judge that he would consent to a judgment for costs for the defendant in another action between the same parties upon one of the bonds, which action was originally instituted at the same time as the action at bar, and was then pending in the Supreme Judicial Court, for the Commonwealth, upon appeal, the Judge declined to require the plaintiff so to elect.</p> <p>The defendant requested the judge to instruct the jury as follows:</p> <p>“ The plaintiff is bound in this action by the returns of himself, and the deputy sheriff, upon the two writs of replevin, and upon the two earlier writs under which the property in question was attached, and, unless it affirmatively appears from the several returns, independent of extraneous evidence, to which particular one of the two replevin writs each of the two bonds relate, the verdict must be for the defendant.” The judge declined to give such instruction.</p> <p>The jury returned a verdict for the plaintiff for the penal sum of both bonds; and the defendant alleged exceptions.</p>

<p>Four actions oe tort, for personal injuries occasioned to the plaintiffs respectively by falling into a trench, through the alleged negligence of the defendants. At the trial of the cases together in the Superior Court, before Bell, J., the jury returned a verdict for the plaintiff in each case; and the defendants alleged exceptions, which appear in the opinion.</p>

<p>Contract, for board furnished the defendant’s wife. Trial in the Superior Court, without a jury, before Bishop, J., who refused to give a ruling requested by the defendant and found for the plaintiff; and the defendant alleged exceptions. If the ruling and refusal to rule were erroneous the finding was to be set aside and judgment entered for the defendant; otherwise, judgment on the finding.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries sustained by the plaintiff, who was eighteen years old, through the alleged negligence of the defendant, by having bis hand come in contact with the teeth of a band saw, on which he had been at work several days. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in'the opinion.</p>

Contract, to recover the value of a mortgage given by Albert H. Greenough upon certain real estate in Boston, to secure the payment of a promissory note for $1,300, with counts in tort for the conversion of the same. Trial in the Superior Court, without a jury, before Graskill, J., who allowed a bill of exceptions, in substance as follows.

<p>Two complaints. The first complaint, under Pub. Sts. c. 68, § 16, alleged that the defendant, on July 21, 1898, at Boston, “ did go from place to place carrying and exposing for sale certain goods, wares, and merchandise, to wit, ice, without then and there having a license from the Secretary of said x Commonwealth so to do.”</p> <p>The second complaint, under Rev. Ord. of Boston, of 1890, c. 43, § 35, alleged that the defendant, on July 21, 1898, at Boston, “did sell to the complainant in West Second street, near E street, a certain article to wit: a piece of ice, said complainant being then and there on said street, and said defendant not then and there having a permit from the Superintendent of Streets of said City of Boston, to sell as aforesaid.”</p> <p>In the Superior Court, before the jury were empanelled, the defendant moved to quash the complaint in each case, for the following reasons : “ 1. No offence known to the law is plainly and substantially set forth in said complaint. 2. It does not plainly appear from said complaint whether the prosecution is under Pub. Sts. c. 68, or under St. 1890, c. 448.”</p> <p>These motions were overruled; and the defendant excepted.</p> <p>The cases were tried together, before Stevens, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The evidence showed that on July 21, 1898, the defendant, then an employee of the Boston Ice Company, was driving one of that company’s ice wagons along West Second Street in Boston. The complainant testified for the government, that as the wagon approached the place where he was standing, near the corner of West Second and E Streets, he heard the defendant shout “ Ice, ice,” several times, and saw the defendant deliver ice at several houses ; that when the wagon reached that corner, the witness purchased a piece of ice and paid ten cents therefor to the defendant, and when the wagon had proceeded about half a block further, he bought another piece of ice of the defendant and paid him another ten cents therefor; that both pieces of ice were delivered by the direction of the witness at the house No. 301 West Second Street; and that-before buying the second piece of ice, the witness told the defendant that his intention was to test the question whether the defendant could sell without a license, but that the latter did not know him, and the two had never seen each other before.</p> <p>The defendant introduced evidence showing that the Boston Ice Company was a solvent corporation, established for many years, and continuously occupying business premises in Boston ; that the custom of its business was at the beginning of the year to cause its solicitors to procure orders for the delivery of ice upon its routes; that such orders were transmitted to the office of the company, where lists of the houses at which ice was so ordered to be delivered were made up and given to the different drivers of its wagons; that the list of customers given by the company to the defendant included the occupants of the house No. 301 West Second Street, and of the houses adjoining it on each side; and that the ice delivered by the defendant was the property of the company, and all proceeds received therefor were transmitted to the office of the company. It appeared also that the defendant was for some months in the employ of the company, but had ceased to be in its employ after the sales in question.</p> <p>The defendant requested the judge to instruct the jury in each case as follows :</p> <p>“ 1. The government has not alleged and proved any offence under the law. 2. The government has not plainly set forth in the complaint the offence intended to be alleged; and whether it was intended to charge the defendant as a peddler or an itinerant vendor. 3. The offence and the penalty of selling as an itinerant vendor and of selling as a peddler being now different, the defendant cannot be convicted under this complaint, which fails to state which offence is intended to be alleged. 4. If the defendant was a selling agent in the usual course of business of a trader occupying a building for the sale of his goods, the complaint cannot be maintained. 5. There is no sufficient evidence that the defendant was a peddler to sustain a conviction as such under the Public Statutes. 6. If the defendant’s occupation was a temporary or transient business, and any building was occupied for the sale of his goods, he cannot be convicted under these complaints. 7. The evidence tends to prove that the defendant was an ‘ itinerant vendor’ within the definition in St. 1890, c. 448, § 1, and as to such itinerant vendors, Pub. Sts. c. 68, is repealed.”</p> <p>But the judge refused so to instruct the jury; and the defendant excepted.</p> <p>The jury returned a verdict of guilty in each case; and the defendant alleged exceptions..</p>

Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. At the trial in the Superior Court, before Hardy, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion. .

<p> Competency of Child as Witness. </p> <p>When it is objected that by reason of insanity or youthfulness a witness does not understand the nature of the oath and is therefore incompetent, it is the duty of the judge to examine into the question of his competency, and to reject him unless he is satisfied that he is competent.</p>

<p>Fire Insurance — Action — Award — Conduct of Arbitrators'?</p> <p>The writ in an action upon an award made under a policy of fire insurance was dated three days before the expiration of the time limited in the policy for bringing an action, but it was not served until about fifty days afterwards, and was duly entered at the next entry day. Two witnesses testified that they saw the writ on the day of its date. Held, that the action was seasonably commenced.</p> <p>In this case, which was an action upon an award made under a policy of fire insurance, signed by two only of the arbitrators, the award was not invalidated by the acts of these arbitrators in the absence of the other one, consisting of experiments with articles similar to those insured, a visit to the scene of the fire and examination of the déhris, conversations with other persons in relation to the case, talks with each other, and an examination of the books of one of them in regard to prices of goods.</p>

<p>Memorandum of Contract— Letter — Signature — Statute of Frauds — Contract to transfer Property in Consideration of Marriage — Allegations of Bill in Equity.</p> <p>It is immaterial that the memorandum of an alleged contract is in the form of a letter, if it is sufficient in other respects to satisfy the statute of frauds.</p> <p>The signing by the defendant by his Christian name only is as binding upon him, within the statute of frauds, as if his signature were written in full.</p> <p>The fact that an alleged antenuptial contract did not contain a schedule of the property to be affected by it, and was not recorded in the registry of deeds, does not affect its validity as between the original parties to it, the requirements of tlie statutes in regard to schedules and recording being for the protection of creditors.</p> <p>The averments of the bill in equity in this case, brought by a husband against his wife to enforce an alleged antenuptial agreement made by her, are not sufficient to entitle the "plaintiff to an interest in his wife’s estate while they are living apart after a permanent separation.</p>

<p>Writ of Entry — Tax Title — Disseissin — Statute — Constitutional Law.</p> <p>The grantee in a deed, made since St. 1891, c. 354, from the purchaser at a sale of the land for taxes assessed upon the whole estate to one of two joint owners thereof, may maintain a writ of entry to recover the same against a person, who, having been in occupation as a paying tenant of the owner, upon condemnation of the premises by the board of health, vacates them and afterwards repairs them at his own expense to the satisfaction of such board, and then moves back and occupies them without paying rent for several years.</p> <p>The St. 1891, c. 354, providing that “ notwithstanding disseisin or adverse possession, any conveyance of real estate otherwise valid shall be as effectual to transfer the title as if the owner of the title were actually seized and possessed of such real estate, and shall vest in the grantee the rights of entry and of action for recovery of the estate incident to such title,” is constitutional.</p>

Bill in equity, to restrain the conveyance, maintenance, and occupation of a building until the same should be made to conform to the provisions of St. 1892, c. 419, §§ 116,117, forbidding among other things the placing of a boiler or furnace in any building in the city of Boston without a permit. The case was submitted to the Superior Court, and, after the bill was dismissed, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion.

<p>Contract, to recover compensation alleged to be due under a written contract between the parties. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Personal Injuries — Railroad — Master and Servant — Action.</p> <p>If a railroad corporation furnishes for the use of its servants a sufficient supply of suitable links for connecting its cars, it is not bound to keep the links used in proper condition, or to prevent the use of dangerous and unsuitable links.</p>

Tort, by the assignees in insolvency of the estate of the Beacon Cycle Manufacturing Company, for the conversion of five hundred bicycles. Trial in the Superior Court, without a jury, before IAlley, J., who allowed a bill of exceptions, in substance as follows.

<p>Absent• Defendant — Service — Foreign Corporation — Constitutional Law — Set-off of Judgments — Jurisdiction — Amendment.</p> <p>Foreign corporations are within Pub. Sts. c. 164, §§ 2, 4, providing that the plaintiff in an action, who' is not an inhabitant of or cannot be found within the Commonwealth, shall be held to answer to a cross action by the defendant, if the demands in the two cases are such that the judgments or executions can be set off against each other and that the writ in sucli cross action may be served on the person who appears as the attorney of the plaintiff in the original suit; and such provisions are constitutional.</p> <p>That the cause of action in a cross action brought against a non-inhabitant under Pub. Sts. c. 164, § 2, was for unliquidated damages does not make the judgment recovered therein any the less proper for set-off against the judgment in the original action.</p> <p>The refusal of the Superior Court to order a continuance under Pub. Sts. c. 164, § 5, of the original action brought by a non-inhabitant, where a cross action has been brought, is not an adjudication that the judgment when reached will not be proper to be set off, under § 2.</p> <p>The fact that the claim in the original action brought by a non-inhabitant, where a cross action has been brought under Pub. Sts. c. 164, § 2, has been satisfied since the service of the writ in the cross action cannot affect the jurisdiction after it has attached.</p> <p>It is not necessary that the writ in a cross action brought against a non-inhabitant under Pub. Sts. c. 164, § 2, should be served over again after an amendment showing that the mode of service adopted was justified by the facts.</p>

<p>.Writ oe' entry, to recover certain parcels of land in Framingham. At the trial in the Superior Court, before Hardy, J., the jury returned a verdict for the demandant; and the tenant alleged exceptions, which appear in the opinion.</p>

<p>Tort, for the conversion of eighty pamphlets called “ Stock Folio No. 7.” Trial in the Superior Court, before Sheldon, J., w.ho reported the case for the determination of this court, in substance as follows.</p> <p>The defendant is a wholesale granite and monument dealer, and the plaintiff .is in the engraving business. On January 8, 1897, the plaintiff submitted to the defendant a bid for making eighty-seven cuts or dies from the defendant’s drawings or photographs of monuments. On January 11 he submitted another bid for printing from the cuts five” thousand copies of “ Folio No. 7.” The defendant subsequently accepted both bids, the two contracts being separate. The price for printing was about four cents a copy. When the cuts were finished, proofs of them were submitted to the defendant, who approved them. The plaintiff then delivered the cuts to a third person with whom he had contracted for the printing. He ordered printed eighty-copies in excess of the five thousand for the defendant, intending at the time of contracting to use the dies for the purpose of printing these extra copies for himself, and quoting a lower price in order to get these extra copies for himself; but he did not at that time, nor at any time before the alleged conversion, inform the defendant of this intention, nor secure permission from him to use the cuts for this purpose. He intended to use these sample copies for the purpose of advertising his own business, (cutting them up so that one or two illustrations should be used as samples,) and sending them with other advertising matter to marble dealers throughout the United States, and also to use them in soliciting trade, showing them as samples of the kind of work he did. By mistake at the bindery, the whole five thousand and eighty copies were delivered to the defendant; but the plaintiff immediately notified the defendant of this fact, and requested him to deliver possession of the eighty copies to the plaintiff’s agent. This the defendant refused to do, but used these pamphlets as he did the others, sending them out through the mails to retail marble dealers throughout the country. Subsequently he offered to pay the plaintiff for the eighty copies at the same rate at which he paid for the five thousand, and before this action was brought, the defendant’s attorney tendered to the plaintiff’s attorney five dollars as payment for the eighty copies. This tender was refused.</p> <p>The plaintiff requested the judge to rule as follows: “ 1. The rule of damages in this case is not, as in ordinary cases, the fair market value of the goods converted, but tbe plaintiff is entitled to recover their value to him. 2. In this case there was no contract, express or implied, between the plaintiff and the defendant, that the plaintiff should not print and use copies of the cuts made on the defendant’s order, for his own advertising purposes. 3. The ownership of the plaintiff in the property converted by the defendant was rightful, and the plaintiff was entitled to make such use of it as he desired.”</p> <p>The defendant requested the judge to rule as follows: “1. On all the evidence the plaintiff is not entitled to recover. 2. In no event can the plaintiff recover more than nominal damages. 3. In no event can the plaintiff recover more than a fair market value, of the property converted.”</p> <p>The judge submitted issues to the jury, which, with the answers returned, were as follows:</p> <p>“1. Is the plaintiff entitled to hold the defendant for a conversion of the pamphlets? A. Yes.— 2. What was the value of the pamphlets to the plaintiff, irrespective of any special value for advertising or other purposes ? A. $5.00. — 3. What was the total value of these pamphlets to the plaintiff, including with the value as found in answer to the second interrogatory, also any special value which these pamphlets had to the plaintiff? A. $71.25.”</p> <p>The defendant admitted that if, on the facts above stated, the plaintiff was the owner of the eighty pamphlets sued for, and was also entitled to their possession, the evidence showed a conversion ; whereupon the judge ruled that “the plaintiff was so entitled, to which ruling the defendant excepted; and the judge instructed the jury to answer the first interrogatory in the affirmative.</p> <p>After the jury had returned their answers to these interrogatories, the plaintiff, not contending that the pamphlets had any other special value to him than their value for advertising purposes, the judge ordered the jury to return a general verdict for the plaintiff in the sum of $5.</p> <p>To the rulings and refusals to rule, so far as inconsistent with the requests made, both the plaintiff and the defendant excepted. If, on the facts stated, the plaintiff had no right of possession, judgment was to be entered for the defendant. If the first request of the plaintiff should have been given, judg- . ment was to'be entered for the plaintiff for $71.25 ; otherwise, judgment was to be entered on the verdict as rendered.</p>

<p>Authority of President and Treasurer of Savings Bank to make Building Loan — Action — Estoppel.</p> <p>The president and treasurer of a savings bank, in the absence of a by-law or vote of the trustees, have no authority to purchase or contract in the name of the bank for work and material to be furnished in completing buildings on land subject to a building-loan mortgage; and the bank is not estopped, in an action against it for materials furnished, to deny the debt, although the transaction took the form of a sale of the materials to the bank.</p>

<p>Libel, for a sentence of nullity of marriage. Trial in the Superior Court, before Fessenden, J., who ruled that the libel could not be maintained, and entered a decree dismissing the same; and the libellant alleged exceptions, which appear in the opinion.</p>

<p>Contract, for use and occupation of a store on Columbia Street in Boston from October 1, 1897, to April 1, 1898. Trial in the Superior Court, before Braley, J., who allowed a bill of exceptions, in substance as follows,</p> <p>The defendant had been in possession of the premises under a lease from the plaintiff which expired on October 1, 1897; and thereafter he continued to hold over. The street commissioners on May 28, 1897, ordered that due notice be given that the board was of the opinion that “ the public necessity and convenience require that Columbia Street ... be widened and laid out over parts of” certain ways, “and private lands from Franklin Park to the Marine Park, as'a public way to be known as Columbia Road, . . . and that a part, or parts, of said public way be designated as a parkway, substantially as shown on a plan of said highway in the office of ” the board; and that they intended “ to take the action so required under the provisions of ” St. 1891, c. 323, “ and acts in amendment or addition thereto, and of” St. 1897, c. 391; and they appointed a time and place for a hearing in the matter.</p> <p>On August 31, 1897, the board passed an order, which, after reciting that a public hearing had been had in the matter, determined that the public necessity and convenience required, and ordered, “ that the said highway be ” widened and laid out under the provisions of the statutes named in the order of May 28, over the streets and private lands thereinafter described from Franklin Park to the Marine Park, “ as a public way to be known as Columbia Road,” according to a certain plan therein described. Then followed a detailed description of the road as thus widened and laid out. Then under the authority conferred by St. 1894, c. 324, the board ordered certain parts of the way to be reserved for the use of street railways and for trees, grass, and planting. The order further proceeded as follows: “ And this- board designate the following described parts of said Columbia Road to be under the authority of the Board of Park Commissioners of the city of B.oston as a parkway, subject to the reservation aforesaid.” This was followed by a description of the parts to be placed under the control of the park commissioners. The entire premises of the plaintiff were taken as a part of such territory ; and on or about September 9, 1897, a notice to quit from the board of street commissioners was given the plaintiff. On or about October 1, 1897, the defendant received from the city of Boston a notice to quit. The defendant refused after the expiration of the lease on October 1, 1897, to pay the plaintiff rent, and remained in possession. The city of Boston on or about September 9, 1897, entered upon a part of the territory taken under the above named order, but not of any portion of the occupied premises.- The mayor and street commissioners were present, and a building was torn down and some work on the earth was done; and on October 2, 1897, another entry was made by the city, and excavating and blasting was done, and continued on that part of the territory taken under the order near Blue Hill Avenue. On or about January 21, 1898, work was commenced near that part of the territory taken by the order which the defendant occupied •, and on April 1, 1898, the defendant vacated the premises, and shortly after the plaintiff, at the request of the city, removed his building from the land.</p> <p>The city was ready and offered to pay for the premises of the plaintiff so taken by the order immediately after the taking; but there was a dispute as to the amount which the plaintiff should receive for his premises, and that dispute continued to about April 1, 1898,-when the city and the plaintiff agreed, and he executed and delivered to the qjty a deed of the premises in fee, which contained the following recital: “ The above granted premises were taken by a Resolve and Order of the Board of Street Commissioners of the said city of Boston, to lay out Columbia Road, passed August 31, A. D. 1897, reference t-o which is hereby had, and are to be used for the purposes of a public street of said city of Boston ; and the above consideration has been received in full satisfaction and discharge of all claims and demands for damages, costs, expenses, and compensation by reason of said taking.”</p> <p>The defendant requested the judge to instruct the jury as follows : “1. Upon all the evidence the plaintiff is not entitled to recover. 2. By the order of August 31, 1897, under the statute of 1897, the city of Boston acquired a fee in the premises taken, and the plaintiff’s estate was thereby terminated. 3. The taking by the city on August 31, 1897, and the entry of the city of September 9, 1897, October 1, 1897, and January 21, 1898, and the work commenced by the city upon parts of the territory taken under said order, of which the premises of the plaintiff was a part, were such an entry and possession as would terminate the estate of the plaintiff. 4. Payment to the plaintiff by the city of the value of his premises by reason of said taking would prevent the plaintiff from recovering in this action, notwithstanding the plaintiff did not receive the money for some time after said taking. 5. By the terms of the deed of the plaintiff of the premises to the city, the title in fee, stated in said deed, related back to the time of the taking in August, 1897. 6. The plaintiff is estopped by the declaration in his deed to claim title after August 31, 1897.” • The judge refused to give the instructions requested.</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 while engaged with others in the defendant’s employ in taking down a coal run. The declaration contained two counts under the employers’ liability act, St. 1887, c. 270, and three counts at common law.</p> <p>At the trial in the Superior Court, before Sherman, J., the question whether the plaintiff, who did not give notice of the injury within the time required by the statute, was incapacitated from giving the notice until he did, was submitted to the jury under instructions which were excepted to by the plaintiff; and the jury answered it in the negative. Thereupon the judge directed the jury to return a verdict- for the defendant on the common law counts ; and, at the plaintiff’s request, reported the case for the determination of this court. If there was error, a new trial was to be granted; otherwise, judgment was to be entered on the verdict. The facts appear in the opinion.</p>

Petition, filed May 2, 1899, for a writ of mandamus to issue to the respondent, as building- commissioner of the city of Boston, being the same officer as inspector of buildings, designated by St. 1892, c. 419, § 2, commanding him to grant a permit to the petitioner to make certain alterations in a building owned by him. Hearing before Morton, J., who dismissed the petition, and reported the case for the consideration of the full court.

<p>Mutual Benefit Association — Judgment founded on Death Benefit Certificate — Trustee Process.</p> <p>The fund of a mutual benefit association set aside for the payment of death benefits, and paid in by members for that express purpose, cannot be trusteed in an action against the association to enforce a judgment founded on a death benefit , certificate.</p>

<p>Two actions OE CONTRACT, upon a bond executed by E. Everett Crosby as principal and by Elijah Crosby and Horatio S. Soule as sureties, and conditioned for the faithful performance by the principal of the duties of collector of taxes of the plaintiff town. Writs dated November 4 and 9, 1896, respectively. The cases were tried together in the Superior Court, before Sheldon, J., who allowed a bill of exceptions in each case, in substance as follows.</p> <p>The defendant E. Everett Crosby was duly elected collector of taxes of the plaintiff town on March 5, 1894, and on August 15, 1894, gave the bond in suit.</p> <p>On August 20, 1894, the- assessors of the town duly committed to Crosby a warrant and tax list for a total assessment of $75,039.07. Crosby entered upon the performance of his duties as collector, and continued as such collector until about the middle of October, 1896, when he disappeared. At the time of his disappearance he had collected of the taxes so committed to him $72,660.34, and had paid over to the town treasurer $66,398.06, leaving a balance of $6,262.28 collected by him and not accounted for. Crosby failed to collect of the taxes on the tax list which had been committed to him, taxes amounting to $2,507.94. By vote of the town passed March 5,1894, it was voted that six per cent interest be charged upon all taxes remaining unpaid November 1, 1894, and interest was due upon the uncollected taxes of $302.20 at the date of each writ. Of this amount of uncollected taxes and interest the sum of $1,464.34 was collected by David Floyd after Crosby’s disappearance, Floyd having been elected collector by the town, and charged with the collection of the balance of the taxes of 1894 not collected by Crosby. The only evidence introduced by the plaintiff was the report of an auditor in its favor, which was filed October 8, 1898. The defendants on February 27,1899, before trial, duly moved to recommit the auditor’s report for amendment, but this motion was denied. The defendants objected to the admission of this report in evidence, on the ground that it appeared that certain evidence was admitted and considered by the auditor which they contended was inadmissible, but failed to set out this evidence, so that the defendants were unable to have the matter duly passed upon by the court. The judge overruled the objection, and admitted the report; and the defendants excepted.</p> <p>The defendants offered to prove that the following by-laws of the plaintiff town were in force during the period from March, 1894, to the date of each writ:</p> <p>“ On the first secular day of each month, and as often as the amount in his hands reaches two hundred dollars or upwards, the collector shall pay over to the treasurer of the town all taxes by him collected, and shall, on or before the seventh day of February in each year, make up his annual account and render the same to the selectmen.</p> <p>“ At each annual meeting the town shall choose two auditors, whose duty it shall be to examine the books and accounts of the selectmen, treasurer, collector, and all other special committees or officers having the charge of the expenditure of money, as soon as possible after the close of the financial year of the town, and report at the next town meeting in detail, under their respective heads, all the receipts and expenditures by the town for the previous year. Said report, with the annual reports of the selectmen, assessors, overseers of the poor, surveyors of highways, school committee, town treasurer, town clerk, collector of taxes, sinking fund commissioners, board of health, and superintendent of the cemetery, shall be printed by the selectmen, and a copy thereof left at every dwelling-house in town, four days at least, before the annual meeting, and twenty-five copies shall be delivered to the town clerk.”</p> <p>The defendants further offered to prove that the collector did. not turn over the amounts collected by him in the manner required by the by-laws, nor did the treasurer require it or make demand therefor; that the town elected auditors for the year 1894, who, in the spring of 1895, took from Crosby a statement of collections and receipts that he had made upon the taxes of 1894; that the auditors made no examination whatsoever of the books of the collector, although if such an examination had been made it would have shown that the statement then made by Crosby was untrue, and that a larger amount of the taxes had been collected by him and had not been turned over to the town treasurer; that a book called “ The Forty-third Annual Report of the Officers of the Town of Winthrop, Massachusetts, for the year ending January 1, 1895,” published in accordance with the by-laws, and also in accordance therewith delivered at every inhabited house in the town, contained a report of the auditors dated February 14, 1895, the material •part of which was as follows:</p> <p>“ We hereby certify that we have carefully examined and ■compared the books and accounts of the selectmen, overseers of the poor, treasurer, collector of taxes, town clerk, and trustees of the public library of the town of Winthrop, and all original bills and vouchers on which moneys have been paid from the treasury of said town during the past year, and find the same to be correct.”</p> <p>This book also contained the report of the collector, dated January 9, 1895, which was identical with the statement submitted by him as above stated to the auditors, in which he charged himself with the following items: “ Amount of assessors’ warrant, $75,010.67; added assessments, $53.64; interest, $49.77 ”; and credited himself with the following items: Ci Cash paid treasurer, $49,531; abatements, $610.10; balance of unpaid taxes, $24,972.98.”</p> <p>The defendants further offered to prove that a copy of this book was sent to the defendant, Elijah Crosby, at his request, at his home in Chatham, and was examined by him, and he relied upon the statements therein ; that another copy of this book was sent to Soule, the other surety, in Florida, where he then was, and was examined by him; that Soule died in the spring of 1895, and the defendant Eliza M. Soule was appointed executrix of his will; that in the year 1895 the plaintiff town elected auditors, who, in the spring of 1896, took from E. Everett Crosby a statement similar to that taken by the auditors of the previous year, but made no examination of his books, although if such an examination had been made it would have appeared that the statement was entirely untrue, and that more money had been collected than was set out in the statement •, that a book called “ The Forty-fourth Annual Report of the Officers of the Town of Winthrop, Massachusetts, for the year ending ' January 1, 1896,” published and delivered in the same manner as the “Forty-third Annual Report,” contained the report of the collector, dated January 8, 1896, which was identical with the statement made by him to the auditors as above stated, in which he charged himself with the following items: “Balance of unpaid taxes, $24,972.98; interest, $493.60”; and credited himself with the following items: “ Cash' paid treasurer, $13,365.60; abatements, $231.57; balance of unpaid taxes, $11,878.41 ”; and also contained a certificate of the auditors, the material part of which was as follows: “ We hereby certify that we have examined the accounts of the selectmen, treasurer, collector of taxes, trustees of public library, and sinking fund commissioners, and find same to be correct.”</p> <p>The defendants further offered to prove that E. Everett Crosby was possessed of certain property, real and personal, prior to the issuing of the reports above mentioned; that before he absconded he encumbered such property by the execution of mortgages, and made conveyances of the property to persons other than the sureties; that the sureties and the defendant executrix relied upon the statements published by the town in the reports, and so relying took no steps to provide for the proper performance of his duties as collector by Crosby and to protect themselves against the consequence of his default; that he did not disappear until the lien for taxes for the year 1894 upon the estate of the persons taxed had expired; that until his disappearance the defendants and the testator had no notice or knowledge of any defalcation or improper action by him; that the defendants and the testator were induced by the false statements published by the town to remain quiet until the time of Crosby’s disappearance, and were thus deprived of the benefit of enforcing the collection of unpaid taxes while a lien for the enforcement thereof existed, and of the benefit of the property of Crosby to make good any loss caused to them by his defalcation ; and that citizens of the plaintiff town assessed for taxes for the year 1894, alienated their property after the first day of October, 1894, and before action could be taken by Floyd to collect the same, so that any lien upon such property was lost.</p> <p>The judge ruled that these facts, if established by evidence, would not constitute a defence in law; and directed the jury to return a verdict for the plaintiff, in each case. The defendants alleged exceptions.</p>

<p>Promissory Note — Partnership — Action — Variance — Agency — Indorsement — Insolvency — Evidence.</p> <p>An action may be maintained against the members of a partnership on a promissory note signed by one member and indorsed by him in the firm name, given in renewal of a note delivered to carry out a contract whereby the plaintiff made an agreement with the maker of the note who undertook to act for the firm to lend to the firm, and the firm agreed to borrow of him, a certain sum; and the fact that the maker of the note put the money into his own account instead of into that of the firm will not affect the plaintiff’s rights, if he was ignorant of it.</p> <p>Proof of the original promissory note, made as a step in showing the character of a renewal note, will not support a claim of variance under a declaration counting on the renewal note.</p> <p>If, in an action on a promissory note given for money lent by the payee to the maker, the evidence shows that A. acted as the go-between in making the contract, it is competent for him to testify to the agreement made through him, and it is immaterial whether he was anybody’s agent, and, if so, whose.</p> <p>If a promissory note bears an indorsement when delivered to the payee, an indorsement made by him when he puts the note in the hank for collection does not make him the first indorser.</p> <p>In an action on a promissory note signed by A., one member of a firm, and indorsed by the firm, and which was given for a loan of money negotiated by B., if there is evidence that statements were made by the firm to B. to be transmitted and which were transmitted by him to the lender, which statements prove the plaintiff's case, the defendants are not entitled to a ruling that “no statements were ever made by A. to the plaintiff touching the note in suit, according to the plaintiff’s case, and the partnership cannot therefore be bound.”</p> <p>The holder of a promissory note bearing the valid indorsement of a partnership made by one partner may prove it against both the latter’s estate and that of the firm in insolvency.</p> <p>Evidence of the person who negotiated a loan of money for which a promissory note was given, as to the statements made to him by the borrower, and of the lender as to the farmer’s statements to him in relation to the matter, is admissible in an action on the note.</p>

<p>Personal Injuries — Collision between Bicycle and Carriage — Evidence — Due Care — Negligence — Instructions.</p> <p>A person who, after an accident caused by a collision between a bicycle and a horse and carriage, injuring the rider of the bicycle, followed the occupant of the carriage as he drove rapidly away, may testify, in an action against the latter for the injury, that when he overtook the defendant he told him that he was sent to see who he was, and the defendant refused to give his name; and the witness may testify also that the defendant drove away and did not turn back until requested so to do by him, although this is denied by the defendant.</p> <p>In an action for personal injuries caused by a collision between a bicycle ridden by the plaintiff and a horse and carriage driven by the defendant, the plaintiff having passed A.’s team going in the same direction before the collision, and the evidence upon the question whetlier the plaintiff or the defendant was complying with the rule of the road, and as to the speed at which the defendant was driving, being conflicting, the defendant is not entitled to have the jury instructed that “ if the plaintiff came round from behind A.’s team and the defendant had not the opportunity to perceive the plaintiff until it was too late to stop or change the direction of the defendant’s horse, the defendant would not be liable.”</p> <p>At the trial of an action for personal injuries caused by a collision between a bicycle ridden by the plaintiff and a horse and carriage driven by the defendant, the request for a ruling that “if the plaintiff was travelling on his wheel at a rate faster than seven miles an hour just before and up to the instant of the accident, and that was .one of the causes of the accident, he was not in the exercise of due care,” is in conflict with St. 1894, c. 479, and is rightly refused.</p>

<p>Bill in equity, filed December 5, 1898, against the Hub Brewing Company, the United States Trust Company, and Adolph Segal, to prevent the use of a refrigerating plant constructed by the plaintiff for Segal and delivered upon the premises of the Hub Brewing Company under a contract with Segal, until the payments provided for by the contract had been made. The bill was taken for confessed against Segal. Hearing, as between the plaintiff and the Hub Brewing Company, before Holmes, C. J., who reserved and reported the case for the consideration of the full court. The facts material to the point decided appear in the opinion.</p>

<p>Personal Injuries — Negligence — .Due Care — Questions for the Jury — Evidence as to the Use of Intoxicating Liquors before the Accident.</p> <p>If, in an action for personal injuries occasioned to the plaintiff by being caught in an elevator, there is evidence that the plaintiff had given a signal for the elevator to come to the floor where he was waiting and that the defendant, operating the elevator himself, opened the door and asked the plaintiff to step in and that he thereupon attempted so to do, that the floor of the car was then six or seven inches above the floor on which the plaintiff stood, and was only two inches thick, and that the car was of such dimensions that when its floor was at the same level as the floor of the hall there was a considerable open space between the threshold of the door giving access to the elevator and the floor of the car, the questions of the care or negligence of both plaintiff and defendant are for the jury.</p> <p>In an action for personal injuries the defendant offered to show, as affecting the damages only, that prior and up to the time of the accident the plaintiff had been addicted to the excessive use of intoxicating liquors, but the judge excluded the evidence and allowed the defendant to offer evidence that since the time of the injury the plaintiff had been addicted to the use of intoxicating liquors. Hdd, that the evidence rejected was rightly rejected.</p>

<p>Tort, for personal injuries sustained by the plaintiff, while in the defendant’s employ as a locomotive fireman, by the bursting of the glass tube of an oiler attached to the boiler of a locomotive engine, through the alleged negligence of the defendant. Trial in the Superior Court, before Gtaskill, J., who, at the defendant’s request, ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear sufficiently in the opinion.</p>

Tort, for malicious prosecution and arrest. Trial in the Superior Court, without a jury, before Blodgett, J., who found for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Promissory Note — Evidence — Statute of Frauds.</p> <p>In an action on a promissory note payable in two years, given in payment for the good will in a milk route and personal property used in connection therewith, the maker also agreeing to buy all his milk from the payee at a certain rate a can, which agreement he kept, and paid bills rendered monthly for it at that rate, evidence of an oral agreement that when the note was settled a discount of a certain sum a can on all milk bought after the date of the note should be made and applied thereon contradicts the written agreement contained in the promissory note and is inadmissible; and the statute of frauds, Pub. Sts. c. 78, § 1, cl. 5, is a defence to a declaration in set-off for the amount of such discount.</p>

<p>Petition to the Superior Court under the statute relating to abolition of crossings at grade by railroads and other roads. Trial in the Superior Court, before Stevens, J., who ruled that St. 1890, c. 428, does not confer jurisdiction on the Superior Court to further alter a crossing like that referred to in the petition which had been altered by proceedings under Pub. Sts. c. 112, §§ 129 et seq., before the St. of 1890 was enacted, dismissed the petition and reported the case for the determination of this court.</p>

<p>Petition, to enforce a mechanic’s lien under Pub. Sts. c. 191, upon a building in that part of Boston called South Boston, and upon the respondent’s interest in the land on which the same was situated. Trial in the Superior Court, without a jury, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The petitioners introduced in evidence a lease of the land in question from the Board of Park Commissioners of Boston to the respondent, dated May 24, 1898, and recorded, and which contained the following provisions: “ To have and to hold the same to the said Mosquito Fleet Yacht Club and its successors for the term of ten years from the first day of January, A. D. 1898, yielding and paying therefor the rent of one dollar, payable on the last day of said term if demanded.</p> <p>“ And the said Mosquito Fleet Yacht Club, for itself and its successors, hereby covenants with the said Board of Park Commissioners and its successors that it will pay the said sum of one dollar as aforesaid, if demanded; that it will within one year from the date of this agreement erect on the demised premises a club house to cost not less than five thousand dollars, the plans of which shall be approved by said Board, and that it will grade, loam and plant the demised premises and maintain them when planted in good condition and order to the satisfaction of said Board; that it will not without the consent of said Board, assign this lease or underlet said premises or any part thereof j that it will use said premises for no other purposes than those of a yacht club, and will erect thereon no club-house buildings, signs, fences, or structures except such as may be approved by said Board, and except also such dolphins, piers and walls and the necessary approaches thereto as may be reasonable and proper for landing facilities and yacht club purposes and as may be approved by said Board; that it will allow said Board of Park Commissioners and its agents, at seasonable times, to enter upon said premises and examine the condition thereof; that it will keep the buildings and structures upon said premises in good repair and condition. . . .</p> <p>“ It is agreed that the club house, piers, lockers and other structures which may be erected by the said lessee upon the said premises shall remain the property of the said lessee, unless at the expiration of six months after the determination of this lease as aforesaid, or after the end of the term of this lease or of any extension or renewal thereof, they have not been removed from said premises, and that such of them as have not. then been removed shall become the property of the city of Boston.”</p> <p>The petitioners further introduced evidence tending to prove that the respondent after it leased the land entered into a contract in writing with one Rayner to build on the land a club house for the respondent for a sum exceeding $4,700 ; that thereupon Rayner began the erection of the club house in accordance with the plans and specifications of the contract; that the petitioners were mechanics who were employed by Rayner in the erection of the building, and had performed labor thereon; that Rayner failed to complete the work, and abandoned the same, owing the petitioners for their labor certain sums which have never been paid; that Rayner was fully paid by the respondent all that was due him under the contract; and that within thirty days from the dates respectively when they ceased to labor, each of the petitioners filed his ■ claim of lien in the registry of deeds, and brought this petition within sixty days thereafter.</p> <p>At the close of the evidence, the respondent requested the judge to rule as' follows: “1. Upon all the evidence the petitioners are not entitled to maintain their petition, and no lien is established. 2. If the building on which the labor was performed by the petitioners is personal property, the lien claimed cannot be established, and the petition must be dismissed. 3. The building on which the petitioners claim to have performed labor is, and always has been, personal property.”</p> <p>The judge refused so to rule, and found for the petitioners, and ordered that the liens be established for the sums named ; and the respondent alleged exceptions.</p>

Tort, under the employers’ liability act, St. 1887, c. 270, against Patrick Shields and- Arthur E. Shields, copartners under the firm name of the Shields Foundry Company, for personal injuries alleged to have been caused by “ the negligence of the person in the service of the defendants intrusted with and exercising superintendence.” Trial in the Superior Court, before Fessenden, J., who allowed a bill of exceptions, in substance as follows.

<p>Goods sold-—Instructions — Exceptions — Matter within Discretion of Judge.</p> <p>No exception lies to the refusal to give instructions in the language requested, if the instructions given sufficiently cover the matter of the requests.</p> <p>Whether a special question shall be submitted to the jury is a matter in the discretion of the judge, as is also the question whether an account book put in evidence shall go to the jury room.</p>

<p>Contract, to recover a balance alleged to be due for money-advanced by the plaintiff to the defendants. At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions, which appear in the opinion.</p>

<p>Contract, against the surety upon a poor debtor’s recognizance. Trial in the Superior Court, without a jury, before Richardson, J., who refused to make a ruling requested and ruled that a constable had authority to serve the notice; and the defendant alleged exceptions, which appear in the opinion.</p>

Writ oe error, to reverse a judgment of the Superior Court in a writ of entry. Hearing before Barker, J., who reserved, the case for the consideration of the full court. The facts appear in the opinion.

Tort, for libel. At the trial in the Superior Court, before Dunbar, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Raising of a Public Highway by a Street Railway Company — Petition for Damages — Action against City.</p> <p>On a petition, under Pub. Sts. c. 52, §§ 15, 16, for a jury to assess damages occasioned by raising the grade of a street in front of the petitioner’s premises by a street railway company in the construction of its railway, it appeared that the act of raising was that of the railway company alone and was not something done for the purpose of keeping the way safe and convenient for travel; and the evidence did not even show that it was done to the satisfaction of the superintendent of streets, much less that it was done by bim or by the city. Held. that the judge rightly ordered a verdict for the respondent.</p>

<p>COMPLAINT, to the Third District Court of Eastern Middle-sex, for the larceny of milk cans. At the trial in the Superior Court, on appeal, before Bond, J., the jury returned a verdict of guilty ; and the defendant alleged exceptions to the admission of certain evidence, the nature of which appears in the opinion.</p>

<p>Taking of Land — Assessment — Equity — Mistake of Fact — Rescission or Reformation of Contract.</p> <p>A mistake, not with reference to the existence at the time of a certain fact, but simply as to the probability of the occurrence of a future event, is not a mistake of fact within the meaning of that term in the rules in equity concerning the rescission or reformation of a contract. The mistake must be with reference to a fact past or present.</p>

<p>Personal Injuries — Master and Servant — Evidence — Due Care.</p> <p>At the trial of an action for injuries occasioned by an alleged defective step evidence offered by the plaintiff of the condition of the step a montli before and a week after the accident, in the absence of evidence that its condition then and at the time of the accident was the same, was properly excluded; and if, after the introduction of evidence that the condition- of the step during that period remained unchanged, the offer was-not renewed, the plaintiff had no ground of exception.</p> <p>At the trial of an action for injuries occasioned by an alleged defective step on the side of a locomotive engine the testimony of a master mechanic employed by the defendant as to the condition of the step on the day of the accident was plainly admissible.</p> <p>At the trial of an action for injuries occasioned by an alleged defective step on the side of a locomotive engine upon which the plaintiff, an experienced brakeman in the employ of the defendant in obedience to an order of the conductor under whose direction he was working, stepped while the engine was in motion, the judge properly instructed the jury that the plaintiff must show that he was in the exercise of due care; that if he undertook to get on the side step of a moving engine he should have taken such a position as due care required of a prudent person in view of the danger to be apprehended from a misstep or any mistake in obtaining a foothold upon the engine ; and that if, knowing that there was a safer way to ride upon the engine, he placed himself unnecessarily and without the prudence of an ordinarily careful man in a dangerous position and thereby contributed to the injury, he would not be entitled to recover.</p>

<p>Complaint under the bastardy act, Pub. Sts. c. 85, by a minor sixteen years of age.</p> <p>At the trial in the Superior Court before Blodgett, J., it appeared that in the Fourth District Court of Eastern Middlesex the action was assigned for hearing on November 15, 1897, at which time neither party appearing, it was continued nisi, and that on February 17, 1898, it was marked for trial on February 26,1898, on which day the respondent filed the following motion to dismiss. “ First. For the re'ason that it is improperly marked and assigned for trial here to-day in that on some date after November 15, 1897, said case was continued nisi, whereupon said action became discontinued. Second. For the reason that the complainant is a minor and has brought the proceedings in said case in her own name and not by her next friend.” The motion was overruled .and the defendant was ordered to give sureties for his appearance in the Superior Court. At the trial in that court after said facts appeared, the motion was renewed. The judge overruled the motion; and the defendant alleged exceptions.</p>

<p>Breach of Contract — Evidence — Letters as Admissions and as affecting Credibility of Witnesses — Damages.</p> <p>In an action for breach of an agreement, letters written, after the controversy had arisen, by the plaintiff to the defendant, a corporation, and letters in reply thereto written in its behalf by the defendant’s general manager, who in its behalf took part in and conducted the correspondence with respect to the transaction in controversy, are rightly admitted in evidence, those written by the plaintiff being competent so far as they tend to qualify, explain, or aid in the construction of those written in the defendant’s behalf, and the latter being competent as its admissions; and the defendant is not prejudiced by the instruction that the letters are to be considered by the jury only so far as they contain statements inconsistent with the testimony of the writers, both of whom were witnesses, and that the jury may consider the letters so far as they affect the credibility of those witnesses.</p> <p>If A. is employed by B. to sell machines made by the latter, and is to be paid as a commission the difference between the selling price which is fixed by him and a price named by the defendant, and B agrees not to sell machines to A.’s customers without his consent at prices less than those named by him to them, and after A. has brought the machine to the notice of C-, B sells to C. an incomplete machine for a price a little more than that named by A. for a complete machine without his consent, thus depriving him of a portion of his commission, in an action by A. against B. for breach of the agreement, B is not entitled to have the jury instructed “ that there was no evidence that the machine could have been sold for more than the price for which the defendant sold it, and that if they should find for the plaintiff their finding must be for no more than nominal damages.”</p>

Tort, for personal injuries occasioned to the plaintiff by falling down a flight of stairs, through the alleged negligence of the defendant in permitting the covering of the floor in its store in Boston, which the plaintiff was invited to enter, to be in a defective condition. At the trial in the Superior Court, before Gasldll, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

<p>Bill in EQUITY, filed February 18, 1899, in the Superior Court, to restrain the New England Trust Company from exchanging certain mortgage bonds for debenture bonds of the plaintiff corporation. The Woodstock National Bank was allowed to intervene as a party defendant.</p> <p>The following facts were agreed: The plaintiff, which is a corporation engaged in the business of furnishing water to the inhabitants of the towns of Wakefield and Stoneham, on or about July 1, 1892, pursuant to a vote of its stockholders, executed and delivered to the defendant trust company a third mortgage of all its property in the sum of $800,000, payable July 1, 1912. The then outstanding indebtedness consisted of a first mortgage for $200,000, dated July 2, 1883, and payable July 1,1903, to secure an issue of bonds for a like amount; a second mortgage for $300,000, dated May 1, 1886, and payable February 1, 1906, to secure an additional issue of bonds for $100,000 and to provide for the refunding of the first mortgage bonds; and five per cent coupon debenture bonds for $300,000, in three issues of $100,000 each, dated March 1, 1887, September 1, 1889, and October 1, 1889, respectively.</p> <p>The third mortgage contained, among other things, the following- recitals and provisions:</p> <p>“ And whereas, in order to carry out the foregoing arrangement, it has been deemed desirable that the obligations to be issued under this indenture shall be sufficient to fairly represent the present total bonded indebtedness of said Wakefield Water Company, to wit, the sum of six hundred thousand (600,000) dollars, together with the sum of two hundred thousand (200,000) dollars for the additions and extensions to the works and capacity of the company, present and future, and for payment of any indebtedness or liability of the company now or hereafter existing, in all amounting to the sum of eight hundred thousand (800,000) dollars;</p> <p>“And whereas, it is a part of this arrangement that three hundred thousand (300,000) dollars of the bonds to be issued hereunder shall be issued only upon the deposit with said trust company of the said three hundred thousand (300,000) dollars of said mortgage bonds as hereinbefore set forth;</p> <p>“ And whereas, it is a part of the arrangement that three hundred thousand (300,000) dollars of the bonds to be issued hereunder shall be set apart for the retirement of said amount of three hundred thousand (300,000) dollars in the five (5) per cent coupon debenture bonds of said company, outstanding as aforesaid, which said bonds shall be exchangeable bond for bond, with equalization of interest, through the said New England Trust Company, the present outstanding five (5) per cent coupon debenture bonds being cancelled by said trust company as soon as received and exchanged.</p> <p>“ The bonds shall be certified and issued by the party of the second part as follows: (1) Three hundred thousand (300,000) dollars as the five (5) per cent coupon debenture bonds herein-before specified shall be presented for exchange and cancelled. (2) Two hundred thousand (200,000) dollars as the two hundred thousand (200,000) dollars first mortgage bonds of July 2, 1883, shall be successively deposited with the party of the second part. (3) One hundred thousand (100,000) dollars as the one hundred thousand (100,000) dollars five (5) per cent mortgage bonds of May 1, 1886, shall be successively deposited with the party of the second part. (4) The remainder as they shall be requested by votes of the directors of the party of the first part, stating the purposes as hereinbefore set forth, for which said bonds are required, and upon receiving a copy of said votes duly certified the party of the second part shall be under no further or other responsibility whatever as to the issue of said bonds.”</p> <p>On or about July 1, 1892, the plaintiff duly executed its eight hundred coupon bonds of $1,000 each, to the amount in all at par of $800,000, payable to the New England Trust Company, or bearer, in twenty years from that day, and bearing interest at the rate of five per cent per annum, payable semi-annually, being the bonds secured by the third mortgage above mentioned.</p> <p>On January 9, 1893, the plaintiff executed and delivered $800,000 of new bonds to the defendant trust company, in accordance with the terms of the third mortgage, of which six hundred were for the purpose of refunding the above described outstanding indebtedness of the plaintiff. Since the time of the delivery of the bonds to the trust company, two hundred and seventy-two of the three hundred debenture bonds have been presented to the trust company for exchange for the third mortgage bonds, and the trust company, after executing the certificate above referred to, has made such exchanges. No first ' mortgage bonds have been exchanged for second mortgage bonds, and no first or second mortgage bonds have been exchanged for third mortgage bonds. The trust company as trustee, and under the terms of' the mortgage, now has in its possession three hundred and twenty-eight of the third mortgage bonds.</p> <p>Of the eight hundred new bonds embraced in the third mortgage, six hundred were intended to replace bonds previously issued and outstanding, and two hundred to provide for the extension of the works or additional construction, and a large part of these two hundred new bonds were issued or negotiated prior to 1897, thereby largely increasing the bonded debt and interest charges of the corporation, so that the interest charges were thereafter in excess of the net income of the corporation.</p> <p>The directors, in June, 1897, issued a circular to the holders of bonds not secured by the first and second ■ mortgages, requesting them to assent to a reduction of interest on their bonds from five per cent to four per cent, and the holders of all but' $15,000 of such bonds assented to such reduction. In November, 1897, the directors issued a circular to the first and second mortgage bondholders, asking them to assent to a like reduction of interest on their bonds to four per cent, and informing them that thereafter only four per cent interest would be paid on such bonds as the coupons matured.</p> <p>The first and second mortgage bondholders refused to accept this reduced rate, and the second mortgage bondholders thereupon procured the New England Trust Company, as mortgagee, to bring a suit against the plaintiff, praying for an injunction to restrain the payment of any interest whatever on the third mortgage bonds until full interest was first paid, and provided for on the first and second bonds, and praying also for the appointment of a receiver, and the trust company obtained such an injunction on June 1,1898, and caused the same to be served upon the plaintiff.</p> <p>The Woodstock National Bank, on August 6, 1898, became, and has since been, the legal owner and holder of twenty-five of the debenture bonds of $1,000 each, dated March 1, 1887. On or about September 30, 1898, the bank delivered the bonds to the trust company for the purpose of exchanging the same for an equal number of the third mortgage bonds then and now in the hands of the trust company, and demanded such an exchange of bonds, prior to the passing of the vote hereinafter mentioned.</p> <p>On or about December 27, 1898, the directors of the plaintiff corporation passed the following vote, and gave the trust company notice thereof on the same day: 11 Voted, In view of the changes which have occurred in the financial condition of the Wakefield Water Company, since the execution by it of its third mortgage, so called, dated July 1,1892, that the privilege therein given to the then holders of the debenture bonds of said corporation of converting the same into bonds secured by said third mortgage be and the same hereby is withdrawn, and that no more third mortgage bonds be issued by the New England Trust Company in exchange for outstanding debenture bonds; and that the New England Trust Company, named as mortgagee in said third mortgage, be requested to cause the third mortgage bonds still remaining in its possession to be cancelled; also, voted, That any authority heretofore given by this corporation to said trust company to exchange said third mortgage bonds as aforesaid be and the same is hereby revoked.”</p> <p>On February 13, 1899, the trust company informed the plaintiff that it had been advised by counsel that it was bound in law to make the exchange of third mortgage bonds for debenture bonds as requested by the bank, and that it should make such exchange as “ debenture bonds are presented,” and also informed the plaintiff-that it already had an application for the exchange of some $30,000 of the debenture bonds. The plaintiff thereupon notified the trust company that it would at once apply for an injunction to prevent it from carrying out its intention to make the exchange proposed, and brought this suit for that purpose.</p> <p>The words following are printed on the face of all the third mortgage bonds: “ This bond shall not become obligatory until, it shall have been authenticated by a certificate indorsed thereon, duly executed by the New England Trust Company.” No such indorsement has yet been made upon the bonds remaining in the possession of the trust company.</p> <p>At the hearing a decree was entered dismissing the bill with costs; and the plaintiff appealed to this court.</p>

<p>Will — Appeal — Suit by Creditor against Executor — Statute of Limitations.</p> <p>In case of an appeal from a decree of the Probate Court allowing a will, the two years, within which an executor shall be held to answer to the suit of a creditor of the deceased under Pub. Sts. c. 136, § 9, begin to run from the date when the decree of the Probate Court is affirmed.</p>

<p>Writ of entry to recover a parcel of land in Boston. Trial in the Superior Court, before Bell, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence tending to show that the land in question was, on October 3,1889, conveyed to the demandant by one O’Connor; that on September 17, 1890, it was sold by public auction to the tenant for the non-payment of the taxes assessed thereon for 1889; that the demandant, within two years after the sale, tendered to the tenant the amount due for the unpaid taxes; and that from October 3, 1889, until July, 1895, the demandant was in possession of the demanded premises and collected the rents thereof.</p> <p>For the purpose of showing that the tenant was in possession of the demanded premises from July, 1895, until the trial of the action the demandant, subject to the exception of the tenant, offered in evidence a conversation between the demandant’s daughter who had been sent by her mother to collect the rent and the tenant’s husband on the demanded premises in which he told her that she had no right there, that he wanted her to get out, and that she had no right to collect the rent.</p> <p>For the purpose of showing that the tenant’s husband acted as her agent, the demandant offered evidence tending to show that the property was bid off at the tax sale by him with her knowledge and consent; that he borrowed for her money with which to pay for the tax title which she subsequently repaid ; that she consulted him when the tender was made by the demandant and again, upon his return from abroad, after she had in his absence paid the taxes in 1891, and that after the conversation between him and the demandant’s daughter, and while the tenant still held the tax title, he caused the house on the land to be put in repair for occupancy.</p> <p>The tenant denied that her husband was her agent, and her husband testified that she refused to have anything to do with the property until the title should be settled ; that he expended his own money in putting the house in repair, and held the rent which he received for whomsoever might be determined to be the owner.</p> <p>At the close of the evidence the judge excluded as immaterial certain evidence which had been earlier admitted in support of the claim made by the demandant in Her opening that the husband of the demandant had conveyed the premises to the husband of the tenant upon an oral agreement to convey them to the demandant, and that the tenant, at the time the land was sold for taxes, had money belonging to the demandant which she ought to have used to pay the taxes, and refused to let the demandant go to the jury on the issues raised thereby. The tenant requested the judge to rule that the action could not be maintained since the remedy was by a bill in equity in the Supreme Judicial Court, but the judge refused so to rule, and the tenant excepted.</p> <p>The jury returned a verdict for the demandant; and the tenant alleged exceptions.</p>

<p>Petition, filed May 1, 1899, against the mayor, the seven aldermen, the city clerk and city treasurer of the city of Everett, and William W. Partridge, for a writ of mandamus to determine whether the petitioner or Partridge was an assessor of that city. At the hearing before Morton, J., it appeared that the petitioner, a veteran of the civil war, was duly appointed and confirmed as an assessor of Everett for the term of three years, and that he entered upon his duties on April 21, 1897, and continued therein until January 16, 1899, when the respondent Hatch, the mayor, removed him, without a hearing, by the following order: “ I have this day removed you from the Board of Assessors. I do this for the good of the service.”</p> <p>The judge reported the case for the consideration of the full ' court, such disposition to be made of it as should seem meet.</p>

<p>Contract, to recover damages for an alleged wrongful dismissal from the defendant’s employ. Answer: a general denial. The defendant, on motion of the plaintiff, also filed two specifications of defence as follows: 1. Intoxication of the plaintiff, and a visit by him to a house of ill-fame in Cincinnati, Ohio, and public association with a prostitute between August 8 and 15, 1896, thereby rendering him an unfit person to continue in the defendant’s employ, and incapable of performing his duties under the contract during that period. 2. Failure of the plaintiff to perform his duties under the contract between August 17 and 19, 1896, in consequence of the misconduct alleged in the first specification. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant employed the plaintiff under a written contract, which provided that he was to enter its service as its chief salesman on or before April 22, 1896, and continue therein until the first Saturday of December, 1897, at a salary of $3,300 a year. On December 7, 1896, the defendant terminated the contract and dismissed the plaintiff, but paid him his salary for December, 1896. January, and a part of February, 1897. There was evidence tending to show that on Sunday, August 9, 1896, the plaintiff, while in the defendant’s employ, visited a house of ill-fame in Cincinnati, drove publicly through the streets with one of its occupants, and drank freely of intoxicating liquors; but that the knowledge of his misconduct did not come to the defendant until after the final payment to the plaintiff in February, 1897.</p> <p>The defendant requested the judge to rule, 1. If there is in fact a good cause of discharge, the employer is justified in discharging his servant, although at the time of the discharge he does not know of the .existence of such cause for discharge. 2. Misconduct exhibiting moral turpitude, although causing no damage to the employer, is a good cause, for discharge. 3. Moral misconduct, although causing no special pecuniary damage to the employer, is a good cause for discharge. ■ 4. If the plaintiff, while in the employ of the defendant, visited a house of ill-fame in Cincinnati on Sunday, and was seen, before or after the visit, publicly driving with one of its occupants who was a woman of bad repute, his discharge from the service of the defendant was justified, although at the time of the discharge the defendant had no knowledge of such misconduct.</p> <p>The judge gave the first ruling requested, but refused to give the others; instructed the jury that, as matter of law, the conduct of the plaintiff did not justify his discharge, and gave full instructions relative to causes relied on in the second specification of defence, and to other issues, to which no exception was taken.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Personal Injuries — Master and Servant — Defective Machine—Assumption of Risk — Evidence — Negligence — Trial — Instructions.</p> <p>If experienced experts testify for the defendant in an action for personal injuries that a certain movement of a machine which caused the injury was impossible, the plaintiff cannot be said, as matter of law, to have assumed the risk of its happening.</p> <p>If a question to a witness is objected to, no reason being given for the objection, and an exception taken, and no objection is made to the answer, a ground for the objection being taken in this court which was not taken at the trial nor in any way called to the judge’s attention, the question itself not being objectionable, and no motion being made then or afterwards to strike out the answer, the exception will be overruled.</p> <p>Evidence that a machine, which was so constructed that it would not repeat its movement without coming to a full stop or start from a full stop, if it were in order, was out of order and not safe to run, that it started from a full stop after it had repeated, and that the repeating was reported by the person who was employed on the machine and was injured by such movement, will warrant a finding of negligence on the part of the employer in an action for the injury.</p> <p>It is not the duty of the judge presiding at a trial to select the undisputed facts in the case and state to the jury what their verdict should be upon those facts, unless the disputed facts are immaterial to the issue.</p> <p>In an action for personal injuries caused by an alleged defective machine, A., who examined the machine soon after the accident, testified that he found several specified defects in it; that, taking the condition in which he found it, he should say that it was an unfit machine to be used just then; and that “ it was not safe to run it, as it would not stop at every revolution.” The defendant’s witnesses testified that these defects would not cause the machine to start from a full stop, but there was evidence that the machine with these defects did so start, and caused the injury. Held, that the jury could not properly be instructed that “ if the defects in the machine, as ascertained and described by A., were all that existed at the time of the accident, the plaintiff cannot recover.”</p>

<p>Tort, for .personal injuries occasioned to the plaintiff by an alleged defect in Buggies Street, a highway in Boston. Trial in the Superior Court, before Ailcen, J., who. directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

Tort, under St. 1887, c. 270, §§ 1, 2, as amended by St. 1892, c. 260, to recovér damages for the death of Richard L. Martin, while in the employ of the defendant. The plaintiffs were the next of kin of the deceased, and were dependent upon him for support. The plaintiff, Peter A. Martin, was the administrator of his estate.

<p>Assignment of Legacy as Collateral Security — Promissory Note — Rate of Interest — Request for Instructions — Payment — Tender — Mortgage — Defeasible Assignment of Chose in Action.</p> <p>On December 24, 1895, A., having lent B. a sum of money, took his promissory note for $100 payable one year after date, to the order of A. with interest thereon payable monthly at the rate of one and a half per cent per month, and at the same rate after maturity, until paid, and also took, as collateral security, an assignment of B.'s interest in the estate of C. deceased, the assignment providing that if B. should pay to A. §100, “ with interest, as provided in a certain note of this date, in one year from this day, then this assignment and said note shall be void, otherwise of full force and effect." A. brought an action on December 27,1897, upon the assignment against C.’s executor under St. 1897, c. 402, which relates to actions upon assigned claims. Shortly before A. notified the executor that the note and interest were unpaid and the executor paid A.’s attorney $100, and was informed that $34.50 of interest was due. After this B.’s attorney tendered to A. $7. The executor offered to prove that the amount of the loan was $75, and not $100, and that the tender of §7, together with the S100 paid, equalled the amount of money actually lent, with interest at eighteen per cent per annum, and a sum not exceeding $5 for the expense of making papers. The executor requested rulings, first, that if the jury found in accordance with the offer of proof, the payment and tender would operate as an extinguishment of the debt and a discharge of the assignment and note given as security, and, secondly, that the executor not having been notified of the rate of interest which the note carried, he would be liable for no more than the $100 referred to in the assignment. Held, that the first request should have been given, and that the second was rightly refused.</p> <p>It is not necessary to foreclose an instrument, which is not a mortgage, but a defeasible assignment of a chose in action, which the assignee has a right to collect in case of breach.</p>

<p>Contract, on a written order. The defendant filed a declaration in set-off. At the trial in the Superior Court before Hardy, J., the jury found in each verdict the full amount claimed by each party with interest; and the defendant alleged exceptions. The facts appear in the opinion.</p>

Tort, for personal injuries occasioned to a brakeman employed by the New York, New Haven, & Hartford Railroad Company, while at work upon a train of that road at Stoning-ton, Connecticut, a station twelve miles east of New London. Trial in the Superior Court, before Aiken, J., who, at the request of the defendant, directed a verdict for the defendant; and the plaintiff alleged exceptions.

<p>Tort, for deceit and for conversion. Trial in the Superior Court, before Blodgett, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion, and in a note by the reporter.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by falling into an excavation between the rails of a street railway track in the defendant city. Trial in the Superior Court, before ¡Sherman, J., who declined to give, among other rulings requested by the defendant, the following: “ There is no evidence to warrant the jury in finding that the defendant was negligent, and the verdict must be for the defendant.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Jurisdiction.— Revision of Rulings of Railroad Commissioners — Extension of Street Railway Location.</p> <p>It seems, that a bill in equity under St. 1898, c. 578, § 25, may be maintained to the extent of revising the rulings of the board of railroad commissioners.</p> <p>An extension of the location of the tracks of a street railway company, approved by the board of railroad commissioners, will not be declared void upon a bill in equity filed under St. 1898, c. 578, §§ 13,15, for the reason that it is granted over the tracks of another street railway company continuous with the first, the use of which by the defendant is permitted under a contract with the other company, approved by the railroad commissioners, and sanctioned, but not expressly authorized under the Pub. Sts. c. 113, § 48, by the board of aldermen of the city in which the tracks are located; nor for the reason that the location granted is temporary only, and is to terminate upon the abolition of a crossing at grade of a railroad and a way over which it is intended that the defendant’s track shall subsequently be laid.</p>

<p>Bill in equity, filed October 5, 1899, against George Fair and the Fair Loom Attachment Company, a corporation, alleging the following facts.</p> <p>The defendant Fair, being the inventor of certain new and useful improvements in loom attachments for which he applied for letters patent of the United States on August 27, 1897, entered into an agreement in writing with one T. Henry Pearse, for the purpose of forming a corporation to own and operate the letters patent when granted; and pursuant thereto a corporation under the laws of the State of Maine was organized on October 9.1897, for the purpose of manufacturing devices containing the invention and described in the application, and selling the same, of-which corporation the defendant and three other persons were the incorporators. The defendant Fair was elected director and president of the corporation, which offices he has ever since held. On October 9, 1897, a vote of the stockholders was passed, authorizing the directors “ to purchase such patents and interest in patents on the subject of loom attachments as the directors may deem for the best interests of the company, and especially such as are now owned applied for by George Fair, of Boston, Mass., and to pay therefor a sum not exceeding four hundred and ninety-nine thousand, nine hundred and sixty dollars ($499,960) either in cash or in the capital stock of this corporation in not exceeding four hundred and ninety-nine thousand, nine hundred and sixty shares ; also to receive suitable deeds and assignments of the property so purchased, and to issue shares of 'stock in pursuance of this vote.” The whole amount of the capital stock of the corporation was five hundred thousand shares of the par value of one dollar each, of which forty shares were sold, or supposed to be sold, for one dollar each.</p> <p>Pursuant to the above named vote, the board of directors, consisting of the defendant Fair and two other persons, on October 29.1897, voted “to purchase the patent, patent rights, and pro-' cesses upon the subject of attachments to looms and shuttles and kindred subjects which now belong to or vested in George Fair, of Boston, or for which he contemplates taking out or applying for patents for the following countries: United States, Canada, England, France, and Germany, and all improvements thereof and therein, and to pay therefor four hundred and ninety-nine thousand, nine hundred and sixty (499,960) shares in the stock of this corporation, the said George Fair executing all suitable assignments and conveyances of the said patent, patent rights, processes, and .property, and to issue certificates for such shares in the name of the said George Fair or his nominees.” In pursuance of such vote, 499,960 shares of stock of the corporation were issued in payment for the inventions, patents, and interests.</p> <p>At a meeting of the directors of the corporation, the defendant Fair being present and acting as chairman, it was voted to sell the patents, patent rights, and processes for the United States belonging to the corporation upon the subject of attachments to looms and shuttles and kindred subjects, to the American Fair Loom Attachment Company, a corporation duly incorporated under the laws of Maine, and to receive in payment therefor 499,940 shares, in the stock of that corporation, such stock to be issued in the name of the Fair Loom Attachment Company, or its nominees ; and accordingly the patents, patent rights, and processes were sold for such consideration.</p> <p>At some time subsequent to the organization of the Fair Loom Attachment Company the defendant invented a certain improvement on the loom attachment for which he had applied for letters patent in August, 1897, and having reported the fact of his invention to the directors of the Fair Loom Attachment Company, who at that time were the defendant, the plaintiff, and one other person, it was voted that “ the president be and hereby is authorized to procure United States patent on the actuating at7 tachment to looms in connection with the shuttle attachment, and also to see that the description of said actuating attachment is made part of the specifications in the applications for foreign patents, in which this company is interested ; also the papers of assignment from said Fair inventor to be prepared, executed, and forwarded with application for Canadian patent; also that an assignment be made to the American Fair Loom' Attachment Company of the right to use, manufacture, and sell in the United States of America the said actuating attachment to looms in connection with the said shuttle attachment.” Application for letters patent for this last-mentioned invention was accordingly made by the defendant Fair at the cost of the Fair Loom Attachment Company, by which all the charges and costs thereof were paid, but the applications were not assigned to the corporation by the defendant Fair, and he refuses so to assign them.</p> <p>The defendant Fair caused an assignment to be made by him to the corporation of the first-named invention, and letters patent, and inserted therein an agreement by the corporation to pay him $200 monthly during the life of the patent, a copy whereof “ is hereto annexed marked F ” ; * and thereunder large sums have been paid by the corporation to him, and received by him without any consideration whatever.</p> <p>On August 19, 1898, at a meeting of the director’s, consisting of the plaintiff, the defendant Fair, and one other person, the defendant Fair with the other person, and against the protest of the plaintiff, voted that the patent for the invention first above named, which had been allowed by the United States Patent Office, be issued to the defendant Fair, and held by him until payment of the indebtedness to him had been made by the corporation. The vote recited “ that the consideration of two hundred dollars ($200) per month, as named in an assignment of patent given by George Fair to this Company and dated Jan’y 25, 1898, is an obligation of this Company.”</p> <p>At a meeting "of the directors of the Fair Loom Attachment Company, consisting of the plaintiff, the defendant Fair, and one other person, held on September 8, 1898, the defendant Fair and the other person voted that the first-named invention be reassigned to the defendant Fair, and he caused the letters patent to be sent to him, and he now holds them.</p> <p>The defendant Fair, subsequently to October 29,1897, made a certain invention other than that above referred to, which is an improvement in the invention first above described, for which he has applied for letters patent, and which he is bound to assign to the Fair Loom Attachment Company, together with his application for a patent therefor, but which he refuses to do.</p> <p>The plaintiff is a stockholder in both the Fair Loom Attachment Company and the American Fair Loom Attachment Company, and has paid for his stock a large sum of money, relying entirely upon the supposed value of the inventions which had been conveyed to the corporation, and he still believes that the inventions are of great value, and without them both the corporations are unable to do the business for which they were organized, and his stock therein is worthless.</p> <p>The plaintiff has requested the defendant Fair, as president of the Fair Loom Attachment Company, and the clerk of the corporation, in writing, to call a meeting of the stockholders of the corporation for the purpose of taking proper action as to the matters and things above set forth, and particularly to begin suit against the defendant Fair in order to protect the interests of the corporation and its stockholders ; but no meeting of the stockholders has been called for such purpose.</p> <p>The prayer of the bill was that the defendant Fair be required to disclose whether he had caused an assignment, or what purports to be such, to be made from the Fair Loom Attachment Company to him of the letters patent; that if he had caused sucfi an assignment to be made to him he be ordered to reconvey the same to the corporation ; that he be ordered to execute and deliver to the corporation an assignment of the second invention and the application for letters patent therefor filed January 25, 1898; that if there had been no conveyance made by the corporation to him of the letters patent first named he be restrained from asserting any claim to the patent under the vote of the directors of August 19, 1898, or September 8, 1898 ; that he be ordered to deliver such letters patent to the clerk of the corporation ; that he be ordered to assign to the corporation patents granted to him for the inventions in Canada, Great Britain, France, and Germany, and also the second invention referred to in the bill and the application for a patent therefor ; and that he be ordered to release the corporation from all liability to pay him the sum of $200 a month or anything else under the assignment by him to the corporation, and to return to the treasurer of the corporation all sums received by him under such assignment.</p> <p>At the hearing, before Hammond, J., the following decree was entered.</p> <p>“ This cause came on to be heard, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz.:</p> <p>“ First, That the terms and agreements severally set forth in the instrument of assignment dated the 25th day of January, A. D. 1898, a copy whereof marked F is annexed to the plaintiff’s bill of complaint, are severally binding upon the defendant Fair Loom Attachment Company and the defendant George Fair, and, so far as inconsistent with the other instruments or agreements named in the bill of complaint or annexed thereto, are a substitute therefor.</p> <p>“ Second. And it appearing that the defendant George Fair has not been unwilling, upon his part, to do whatever was required of him by virtue of said instrument of assignment whenever called upon so to do by the Fair Loom Attachment Company, there was no necessity for the plaintiff to bring his bill of complaint against the defendants; wherefore • this court doth order that the plaintiff’s bill do stand dismissed out of this court, with costs to -be paid by the plaintiff Edwin W. Gay to the said defendant George Fair and the defendant Fair Loom Attachment Company, to be taxed by the clerk of the court.”</p> <p>The plaintiff appealed to the full court.</p> <p>The facts appearing in evidence and material to the decision are stated in the opinion.</p>

<p>Contract, upon a policy of insurance against loss by fire, upon a building used as a grocery store and upon stock and fixtures therein owned by the plaintiff, in Natick. The evidence showed a total loss on October 15, 1897, and was within the time covered by the policy. At the trial in the Superior Court, before Sherman, J., the plaintiff testified that he had lived in Natick for some years, but was obliged to move his wife from that place because of her health to Fitchburg, on June 8, 1897, but returned to Natick on the following day ; that he went back to Fitchburg on June 11, having locked the store at Natick and having left no one in charge; that in a week he returned and went to the store, collected bills, and slept there for a couple of nights; that he shut the store again and went to Fitchburg, where he remained about a week; that he again returned to Natick and remained at the store two or three days; that he thus continued to divide his time between Fitchburg and Natick up to the time of the fire, October 15, 1897, at which time he was at Fitchburg; that when at Fitchburg he left no one in charge of the store; that he was at the store nearly every week from June 10 to October 13, and usually stayed two or three days before returning to Fitchburg; that from June 8,1897, to the time of the fire, he did some grocery business, selling perhaps five dollars’ worth of tobacco; that his books were burned at the time of the fire and that at no time was he away from the store for thirty days.</p> <p>There was also other testimony tending to show that the store had been open, and that the plaintiff was there within ten days of the time of the fire.</p> <p>The plaintiff had never had the assent of the defendant, in writing or in print, that the premises might become vacant by the removal of the occupant and so remain vacant for more than thirty days.</p> <p>The defendant requested the judge to rule that according to the terms of the policy, relating to vacancy, the plaintiff was not entitled to recover. The judge refused so to rule as matter of law, and submitted the question to the jury with appropriate instructions.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract, to recover the price of 155 squares of slate. The declaration contained two counts : the first on an account annexed, for goods sold and delivered by the plaintiff to the defendants, and the second, a special count, as follows:</p> <p>“ The plaintiff says that on or about June 7, 1897, one G. J. Williams ordered of the plaintiff one hundred and fifty-five (155) squares of 16 x 12 No. 1 Brownville slate, not drilled, for roofing a church at Beverly in Massachusetts, at the price of five dollars and eighty-two cents ($5.82) per square, amounting in all to nine hundred and two dollars and ten cents ($902.10), the said slate to be shipped from the plaintiff’s, works in Maine to the defendants at Beverly. The plaintiff, on or about July 3, 1897, caused fifty (50) squares of the said slate to be shipped to the defendants at Beverly, and on or about July 6,1897, caused one hundred and five (105) squares to be shipped to the defendants at Beverly. The said slate were thereupon delivered to the defendants and by them carried away with the understanding and agreement between them and the plaintiff that the property in the said slate should remain in the plaintiff until the plaintiff had been furnished an order for the amount of the contract price of the slate drawn by said Williams upon the defendants and accepted by them. Thereafter the said slate being at Beverly and in the possession of the defendants, they represented to the plaintiff that they desired to use the said slate, and thereupon on or about September 18,1897, it was agreed between the plaintiff and the defendants that the defendants might acquire title and use the said slate without an accepted order upon them as above set forth, provided that the defendants would promise to pay the contract price thereof; and the defendants did thereupon, in consideration of the agreement of the plaintiff and the acquirement of title and use of said slate, promise the plaintiff that they would pay the said contract price. The said promises and agreements being mutually made by the plaintiff and the defendants, the defendants thereupon acquired the title of and used the slate for the purpose of roofing a church at Beverly.</p> <p>“ And the plaintiff further says that the defendants, by virtue of their said promise, became liable for the contract price of the said slate ; but although often requested, they have neglected and refused to pay the same, and they now owe the plaintiff the sum of nine hundred and two dollars and ten cents (§902.10), together with interest thereon.”</p> <p>Trial in the Superior Court, before Richardson, J., who refused to rule "that the evidence did not support the declaration, and that upon the whole evidence the plaintiff was not entitled to recover; and the defendants excepted.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions. The facts appear in the opinion.</p>

<p>Contract, to recover certain commissions under an alleged oral contract. Trial without a jury, before Barker, J., who found for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Equity—Multifariousness — Allegation that Officers of Corporation mismanaged it for Personal Gain, Ground for Equitable Relief—Argumentative Allegations — Discovery.</p> <p>The objection that a bill in equity is multifarious is one upon which there is no inflexible rule, and the question whether the objection shall be sustained must . be determined largely by the circumstances of the particular case; and in this case all the matters charged are so related to the general ground of complaint that the objection cannot be sustained.</p> <p>The general ground of complaint in a bill in equity by the receivers of a corporation that the defendants, as officers in charge of the business of the corporation, mismanaged it for their personal gain, is a ground for equitable relief.</p> <p>While there are in this bill in equity, by the receivers of a corporation, some matters which are pleaded argumentatively and are not plainly and directly charged, as, for instance, some statements that officers of the association, and the defendants “ conspiring to defraud,” or “ conspiring to appropriate unlawfully,” or “ further conspiring to defraud,” did certain acts, in the main the allegations are plain and direct, and are not open to the objection that they are argumentatively stated; and this ground of demurrer being addressed to the bill as a whole is unsound and must be overruled.</p> <p>A demurrer to a bill in equity on the ground that it seeks discovery of matters within the knowledge of the plaintiff must be overruled, if it does not appear from the bill that the matters concerning which discovery is sought are within the knowledge of the plaintiff.</p>

<p>Claim, against Insolvent Estate — Mortgage as Security to Note.</p> <p>A. made a promissory note to B. and gave him a mortgage of real estate as security therefor. B. indorsed the note and assigned the mortgage to C. Held, on the insolvency of B., that C., who declined to deliver up the mortgage, had no mortgage or pledge of the estate of B., and hence was not forbidden or restrained in his proof by Pub. Sts. c. 157, § 28, or by any other provision of the statute.</p>

<p>Petition to vacate Judgment — Matter apparent on Record — Appeal.</p> <p>A petition under St. 1895, c. 234, to vacate a judgment of the Superior Court is properly denied, and the judgment must be affirmed, if there is nothing on the record which this court can consider under the appeal.</p>

<p>A ction — Suggestion of Bankruptcy — Stay of Proceedings — Special Judgment■—Bond— Sureties.</p> <p>After a verdict and before judgment the defendants in an action were adjudicated bankrupts under U. S. St. of July 1, 1898, and thereafter they filed a suggestion of that fact and moved that all proceedings be stayed. This motion was denied and a special judgment entered to enable the plaintiff to proceed against the sureties upon a bond, given more than four months before the bankruptcy, to dissolve an attachment. Held, that the court had power to overrule the motion for a stay, and to direct the entry of a special judgment.</p>

<p>Injunction — Abatement of Nuisance — Record, of Conviction — Plea of Nolo contendere — Evidence.</p> <p>While a sentence imposed after a plea of nolo contendere amounts to a conviction in the case in which the plea is entered, a record showing a conviction on such a plea is not admissible in another proceeding to show that the defendant was guilty.</p>

<p> Liability of Stockholder of Corporation organized in another State. </p> <p>A shareholder, who is a citizen of this State, in a State bank of Washington is bound by the constitution and laws of that State which entered into the contract by which he took his shares; and a receiver of the bank duly appointed and authorized there, may recover in Massachusetts the amount of an assessment laid by the Superior Court of Washington upon the defendant as such shareholder.</p>

<p>Bill in equity, by the plaintiff Wilkinson, and two others, on behalf of themselves and other members of the Thistle Road Club, against the defendant Stitt, and four others, and all other members of the New Bedford Cycle Club and the Crescent Cycle Club, the bill alleging that the Thistle Road Club and the New Bedford Cycle Club “ are both voluntary associations or clubs, each having a large number of members, too numerous to name in this bill of complaint;” and that the Crescent Cycle Club “ is a corporation duly organized according to law and located in said New Bedford.” The prayer was that the New Bedford Cycle Club might be decreed to carry out and execute the trusts and agreement by which it held a certain cup and to deliver the same to the Thistle Road Club, and for an injunction. The defendants demurred, assigning various grounds therefor. The Superior Court sustained the demurrer, and the plaintiffs appealed. The facts appear in the opinion.</p>

<p>Bill in EQUITY, by Harrington A. Pine, the Massachusetts Universalist Convention, and Frank W. Grinnell, trustee, against Edwin M. White and Fanny F. White to charge the said Edwin M. for delinquency in management of a trust under the following residuary clause of the will of James A. Pine.</p> <p>“ After deducting the aforesaid expenditures, I give, bequeath, and devise all the residue of my estate to said Jeremiah L. Newton, his heirs and assigns, nevertheless in trust for the use and benefit of my son Harrington A. Pine during his natural life to be paid in the manner following, viz.: After deducting all necessary expenses, charges of administration and taxes, I direct my said executor and trustee to pay over to or expend for the benefit of my said son the income of my said estate at such times and in such manner as in his- judgment he shall think best for the interest and welfare of my said son so long as he shall live ; and at his decease, after the payment of all burial charges and suitable expenses, connected therewith, to pay over or assign the residue of said estate to the Massachusetts Convention of Universalists so called to be made use of by that body at their discretion either for Home Missionary work or for helping weak societies. And to make my said executor and trustee to manage and control my said estate for the purposes and uses aforesaid, I hereby empower and give him the right and power to lease or dispose of, if necessary in his judgment, any part or all of my said estate, and execute all deeds and papers necessary to pass title to the same, and invest and reinvest the proceeds derived therefrom in such manner and in such securities as he may think best for the uses and purposes aforesaid.”</p> <p>Trial in the Superior Court before Hardy, J., who found for the defendants and reported the case for the determination of this coui’t. The facts appear in the opinion.</p> <p>The case was argued at the bar in December, 1899, and after-wards was submitted on briefs to all the justices.</p>

<p>Petition, under Pub. Sts. c. 52, §§ 15,16, for damages caused by the raising of the grade of Lincoln Avenue in Fall River. Trial in the Superior Court, before Fessenden, J., who stated that a single question which in certain aspects might be considered by the full court as material to the case was whether the surveyor of highways, when he made the change of grade, intended to perform that act in his official capacity to repair the way, or as specific repairs under and by authority of the orders introduced in evidence, and submitted the following question to the jury, “ Was the work done by the surveyor of highways for the purpose of repairing the way ? ” The jury answered the question in the negative. The judge, at the request of the respondent, directed the jury to return a verdict for the respondent; and the petitioner alleged exceptions, which appear in the opinion.</p>

<p>Contract, on a bond of Charles W. Parrish of St. Louis, with William H. Stacy as surety, dated August 17,1894, for the payment of $2,500 to the plaintiff, on the following condition :</p> <p>“ Whereas, the said Charles W. Parrish has heretofore leased of one Mrs. Riley, the building known as No. 409 North Broadway, in said city of St. Louis, and has sublet to Fitz W. Guerin, the fourth and fifth floors thereof; and whereas, said Guerin has expended a large sum of money in improving and arranging said floors for a photograph gallery; and whereas in the lease from the said Mrs. Riley to said Parrish, the right is reserved on the part of Mrs. Riley and her heirs, representatives or assigns, upon the happening or not happening of certain contingencies, to declare a forfeiture of said lease, in which event the term granted by said Parrish to said Guerin would also terminate and expire, and the said Guerin would lose the benefit of said expenditures; and whereas, to indemnify the said Guerin in such event, the said Parrish heretofore executed to him a bond of indemnity with one Edward B. Wolff, as surety, and whereas the said 'Wolff desires to have the said bond cancelled, and the said Guerin has agreed so to do upon being furnished with these presents in lieu thereof.</p> <p>“ Now, therefore, if through any act or acts on the part of • said Parrish, or his heirs, legal representatives or assigns, the said lease should become forfeited or terminated before the expiration of the term for which the said fourth and fifth floors were let to said Guerin, or if through any fault of the said Parrish, the said Guerin should be ousted from said premises before the expiration of his said term (other than the destruction of said building by accidental fire or by the elements), then this obligation shall remain in full force and effect and the said Parrish and his surety hereto shall pay the said Guerin, the sum of twenty-five hundred dollars as liquidated damages.”</p> <p>At the trial in the Superior Court, before Aiken, J., the jury returned a verdict for the plaintiff in the sum of $25; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>On May 22, 1900, the following order was adopted by the Senate and was transmitted on the following day to the Justices of the Supreme Judicial Court, who, on June 5,1900, returned the answer which is subjoined.</p>