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off. It further appeared, also by uncontradicted testimony, that the switch was in the same place, and was the same in all respects as when he entered the defendant's employment, and that there had been no change in the adjacent tracks. The condition of things was perfectly obvious, and there was nothing in the nature of a trap or a hidden defect, and at the time of the injury he was engaged in service growing out of the nature of his employment, and with which he was familiar, and which he had been accustomed to do. Under such circumstances he must be held to have assumed the risk of injury from the proximity of the switch to the track, and the rulings asked for by the defendant to that effect should have been given. Lovejoy v. Railroad, 125 Mass. 79; Fisk v. Railroad Co., 158 Mass. 278, 33 N E. 510; O'Maley v. Light Co., 158 Mass. 135, 32 N. E. 1119; Kleinest v. Kunhardt, 160 Mass. 230, 35 N. E. 458; Goldthwait v. Railway Co., 160 Mass. 554, 36 N. E. 486; Coombs v. Railroad Co., 156 Mass. 200, 30 N. E. 1140; Thain v. Railroad Co. (Mass.) 37 N. E. 309; Feely v. Cordage Co., Id. 368; Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322; Tuttle v. Railway, 122 U. S. 189, 7 Sup. Ct. 1166. As the case stands, we find nothing in the exceptions calling for instructions on the question whether the emergency was such that the plaintiff's intestate fairly could be said to have voluntarily assumed the risk. As already observed, the accident happened in the ordinary course of his employment, and while he was engaged in the performance of duties to which he was accustomed, and under circumstances which were not unusual. The testimony that was objected to was rightly admitted. It all bore upon the question of whether or not the plaintiff's intestate was in the exercise of due care. Exceptions sustained.

NICHOLS v. INHABITANTS OF RICHMOND.

(Supreme Judicial Court of Massachusetts. Berkshire. Oct. 18, 1894.)

VACATION OF HIGHWAY-DAMAGES.

Damages are not recoverable for the vacation of a portion of a highway used by petitioner in passing from one portion of her lands to another, where no part of such lands abuts on the portion of the highway vacated.

Report from superior court, Berkshire county; Albert Mason, Judge.

Action by Catherine E. P. Nichols against the inhabitants of Richmond. The case was heard on the following report of the chief justice of the superior court, and judgment rendered for plaintiff:

"This was a petition for assessment of damages under chapter 428 of the Acts of 1890, as amended by chapter 123 of the Acts of 1891. By due proceedings in this court, upon petition of the respondent town and the Bos

ton & Albany Railroad Company, certain grade crossings in said town were abolished, an overhead crossing constructed, and a new way laid out over land of the petitioner. By the proceedings aforesaid, so much of an ancient public way which crossed said railroad as lay within the location of the railroad was discontinued. At the trial it appeared that the petitioner's farm abutted, on the northerly side thereof, upon said ancient public way, and comprised about sixty-five acres; that, before the railroad was located, Eleazor Williams, the father of the petitioner, owned said farm, together with the land now within the railroad location through it, and used the whole as one farm. In 1838 said Williams conveyed to said railroad company the land now occupied by the railroad location through said farm. This conveyance left the farm in two portions. both abutting on said ancient public way, and both also abutting on the land now occupied by said railroad location. The portion on the westerly side of the railroad comprised about two acres, and had upon it the dwelling house and farm buildings, and the portion on the easterly side comprised the remainder of the farm. The petitioner's title was by descent and mesne conveyances from said Williams. It also appeared that, from the construction of said railroad to the discontinuance of said portion of said ancient public way, said farm had been owned and used as one; that the stock kept thereon was housed on the westerly side of the railroad, and, in the season for pasturage, was driven night and morning over the portion of said way now discontinued; that the crops of said farm, and the manure used in its cultivation, were hauled over it; and that travel over said discontinued portion of said way was constant and continuous, as occasion existed, for all purposes required in the operation of said farm, and there was no private crossing of said railroad between said portions of said farm. By the proceedings aforesaid a new public way was laid out over the land of the petitioner, by which new way a more circuitous and less convenient route between the two portions of said farm was provided. The petitioner claimed damages for injury to her farm by the laying out and construction of the new way, and also for injury to said farm from the discontinuance of said portion of said ancient public way, but no other or different element of damage from such discontinuance than herein stated was presented. Under the direction of the court the jury assessed the damages separately; those for laying out and constructing the new way at one hundred and twenty-five dollars. and those for discontinuing the old way at one thousand dollars. The court ruled that the petitioner could not recover as damages for discontinuance of that portion of the highway within the railroad location the injury to her farm resulting from the fact that the travel on the highway required in its opera

tion must, in consequence of such discontinuance, be by a longer and more inconvenient route, and ordered judgment for the petitioner in the smaller sum. Thereupon the case is reported for determination by the supreme judicial court, and by consent of parties, if the ruling or order was erroneous, judgment for the petitioner is to be entered in the sum of eleven hundred and twenty-five dollars with interest; otherwise, in the sum of one hundred and twenty-five dollars, with interest. The maps and plans used at the trial are made part of this report."

J. F. Noxon, for plaintiff. C. E. Hibbard, for defendant.

MORTON, J. The petitioner's premises were situated on both sides of, and adjoined, the railroad, and were on the northerly side of the way. They touched only at two corners that portion of the way within the railroad location which was discontinued. They did not, therefore, in any proper sense, abut upon the discontinued portion of the way, though they did upon other portions of it; and the case presented is that of a party who has been obliged, in passing from one portion of her premises to another, to use a way of which a part, on which her premises do not abut, has been discontinued, and who is compelled, in consequence of such discontinuance, to use a longer and more circuitous and less convenient route, over a new way, substituted for, and provided in place of, the discontinued, portion. It is well settled we think, in this state. that under such circumstances a party cannot recover damages for the inconvenience resulting from the discontinuance. Quincy Canal v. Newcomb, 7 Metc. (Mass.) 276; Smith v. Boston, 7 Cush. 254; Brainard v. Railroad, Id. 506; Hartshorn v. South Reading, 3 Allen, 501; Willard v. Cambridge, Id. 574; Blackwell v. Railroad, 122 Mass. 1; Davis v. Com'rs, 153 Mass. 218, 26 N. E. 848; Hammond v. Com'rs, 154 Mass. 509, 28 N. E. 902; Shaw v. Railroad Co., 159 Mass. 597, 35 N. E. 92, and cases cited. The line has to be drawn somewhere. for practical reasons, between those who may and those who may not recover for damages caused by the discontinuance, in whole or in part, of a street or way; and it has been drawn so as to limit the right of recovery to damages which are special and peculiar, and different in kind from those suffered by the public at large. In the present case, although, owing to the proximity of her premises to the discontinued portion of the way, and to the use which she made of them, the inconvenience and damage to the petitioner was greater than to others having occasion to use the way, the difference was one of degree, and not of kind. She was obliged to travel further than before in passing to and fro between the different portions of her farm. But every one who passed over the way was subjected to a similar incon

venience. The fact that she had no farm crossing over the railroad cannot affect the result. The absence of such a crossing obliged her to use the way more than she otherwise would have done, but it did not change the character of her user, as compared with that of the public at large. According to the terms of the report, the entry must be, judgment for petitioner for $125 and interest, and it is so ordered.

TOWN OF EASTHAMPTON v. HILL. (Supreme Judicial Court of Massachusetts. Hampshire. Oct. 20, 1894.) TOWN BY-LAW-CONSTRUCTION- CLEARING SNOW FROM PREMISES-TENEMEnt Buildings.

1. The word "building," as used alone in a town by-law requiring the tenant of a "building" to remove the snow from in front of the premises, is broad enough to include "tenement."

2. Where the tenants of two tenement buildings agree with the owner to clear snow from the sidewalk, and no limits are fixed as to how much each shall attend to, the removal of one tenant does not impose upon the remaining one the duty of attending to the sidewalk in front of the tenement so vacated, the town by-law providing that if there be no tenant of premises it shall be the duty of the owner to clear the sidewalk.

Report from superior court, Hampshire county; Justin Dewey, Judge.

Action by the town of Easthampton against David Hill to recover a penalty imposed for failure to clean a sidewalk. There was a finding for defendant, and the case was reported for the decision of the supreme court. New trial ordered.

The material part of plaintiff's by-law was as follows: "The tenant, occupant, and in case there shall be no tenant, the owner, or person, or corporation having the care of any land or building fronting on any street in the village where there is a concrete, stone, brick or plank sidewalk, shall after the ceasing to fall of any snow, ice or sleet, within twenty-four hours cause the same to be removed from such sidewalks."

A. J. Fargo, for plaintiff. Charles N. Clark, for defendant.

LATHROP, J. We have no doubt that the word "building," in the by-law of the plaintiff town, is sufficient to describe the part of the house which had been vacated by the defendant's tenant, and which was then in the care of the defendant, as owner. If the by-law in question had contained the words "building or tenement," the word "building" might have to be construed as meaning the entire building, in order to give effect to the word, as was held in Com. v. McCaughey, 9 Gray, 296. But, where the word "building" alone is used, it is broad enough to include a tenement. See Com. V. Lee, 148 Mass. 8, 18 N. E. 586; Com. v. Quinlan, 153 Mass. 483, 27 N. E. 8. The de

fendant's house was divided into two tenements, one of which was occupied by a tenant, and the other was vacant. The tenant, as tenant, had no control over the vacant tenement, and it was conceded at the argument that he had no control over the land in front. It was the owner's duty to attend to the sidewalk, and his failure to do so renders him liable. And the by-law in terms applies to a person having the care of any land fronting on a street, as well as to the person having the care of the building.

It is stated in the report that, by an understanding and agreement with the owner, the tenants were to clear the snow and ice from the sidewalk, and there were no limits fixed as to how much each should clear off. We do not understand by this that if one tenement became vacant it was the duty of the remaining tenant, as tenant, to clear the entire sidewalk. In Com. v. Watson, 97 Mass. 562, there were two tenants, who occupied separate parts of one estate, and had the sole control of it, the owner being merely a boarder with one of them. The case differs from the one at bar. According to the terms of the report, there must be a new trial.

ration, answer, or replication has been filed. a supplemental one may be made by leave of court, alleging material facts that have occurred since the former declaration, answer, or replication. Id. The statute is wider in its scope than the plea of puis darrein continuance. Strictly speaking, that can only be availed of in regard to matters occurring since the last continuance. The statute is not so limited. The suit in New York, on the judgment in which the defendant relies, was begun on the same day as this action, viz. June 27, 1893. Judgment in that suit was entered in the plaintiff's favor on July 15, 1893, after the commencement of these proceedings. There can be no doubt that the defendant had the right to set up the judgment so obtained in bar of the plaintiff's right to recover in this action. It is equally clear, we think, that it was competent for the court, upon the plaintiff's application, to reopen this case after the hearing, and before the finding, and allow him to file a replication setting up that the judgment had been vacated and was no longer in force, and to introduce evidence of that fact, and to find, if the evidence warranted it, that the judgment in that case had been vacated, and that the plaintiff was entitled to judgment in this action. Exceptions overruled.

GRAEF v. BERNARD.

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 19, 1894.) ABATEMENT OF ACTION-JUDGMENT ON SAME CAUSE OF ACTION.

1. Under Pub. St. c. 167, § 26, providing that "an answer or replication may allege facts which have occurred since the institution of the suit." defendant may set up. in bar of plaintiff's right to recover, a judgment on the same cause of action, rendered in favor of plaintiff, in another state, since the pending action was begun.

2. Where defendant pleads a former judg ment in bar of plaintiff's claim, plaintiff may show that such judgment has been vacated.

Exceptions from superior court, Worcester county; Franklin G. Fessenden, Judge.

Action by Walter H. Graef against Henry O. Bernard on contract. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

F. P. Goulding and F. L. Dean, for plaintiff. J. E. Beeman, for defendant.

MORTON, J. The rights of parties are generally determined as of the time when the action is begun. And it is necessary that it should be so. That the rule is not an invariable one, however, is shown by the numerous instances in which, by the plea of puis darrein continuance, facts occurring after the commencement of the action are set up, and allowed to operate in bar of it. And it is expressly provided by section 26, c. 167, Pub. St., that "an answer or replication may allege facts which have occurred since the institution of the suit." if a decla

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1. Where a policy was issued by defendant on the life ot plaintiff's husband, without his knowledge, but on the solicitation of defendant's agent, and in a manner contrary to defendant's rules, if plaintiff was innocent of any fraud, and was induced by the fraudulent representation of the agent to make the application, plaintiff may rescind the contract on discovering the fraud, and recover the premiums paid.

2. Where a regulation of a life insurance company required that the examination on the back of the application must be personally signed by the insured, but such rule was not on the paper signed by plaintiff in securing a policy on her husband's life, there is no presumption of knowledge by her of the rule.

3. The fact that such rule was embodied in a receipt book given plaintiff after taking out the policy, and before making the payments sought to be recovered, raises no presumption that plaintiff read the rule before making the payments.

Exceptions from superior court, Worcester county; John Hopkins, Judge.

Action by Mary F. Fisher against the Metropolitan Insurance Company to recover money paid as premiums. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

John R. Thayer and Arthur P. Rug for plaintiff. W. A. Gile and Arthur M. Taft, for defendant.

KNOWLTON, J. This case has once before been considered by this court, and it is reported in 160 Mass. 386, 35 N. E. 849. The evidence at the former trial is substantially the same as that now before us, and the questions of law already decided in the case leave little open to the defendant on this bill of exceptions.

The exception to the refusal of the court to give the first two rulings requested by the defendant is covered by the former decision, in which it was said "that if the plaintiff was innocent of any fraudulent intent, and was deceived by Bannigan, and induced by his fraudulent representations to make the application, she could rescind the contract of insurance when she discovered the fraud, and recover the amount of premiums which she had paid out." It is now argued that under St. 1892, c. 372, the policy was binding upon the company, and that, therefore, she cannot recover. But if this statute (passed after the policy was issued) applies to the case, which we do not intimate, the policy is still void or voidable, under the rules of the company, which require an examination of the form on the back of an application to be personally sigued by the insured, and provide that, if it was not so signed, the policy shall be void.

All but one of the other instructions requested by the defendant were given in terms, with an addition which permitted the jury to find for the plaintiff if they found that she was innocent of any fraudulent intent, and was induced to sign the application by Bannigan's fraudulent representations. This addition to the instructions requested was warrated by the evidence, and was in accordance with our former decision.

The only other exception was to the refusal of the judge to rule that the plaintiff was presumed to know the defendant's rules and regulations. These rules were not contained in the paper signed by her, and she testified that she did not know them until she had made all the payments that she made at all. These rules were printed in a small receipt book, which came into her possession after the policy was issued, and there is no presumption of law that she read them before making her payments. Exceptions overruled.

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divorce was granted, and had not returned for business purposes. Held, that the evidence justifies a finding that defendant was a resident of Massachusetts at the time the divorce was granted.

Exceptions from superior court, Worcester county; Elisha B. Maynard, Judge.

William R. Kendall was convicted of adultery, and excepts. Exceptions overruled.

F. A. Gaskill, Dist. Atty., for the Commonwealth. F. P. Goulding, W. E. Sibley, and F. L. Dean, for defendant.

The

MORTON, J. The defendant finds no fault with the construction put by the court upon the statute relating to foreign divorces (Pub. St. c. 146, § 41), nor with the instructions as to what was necessary to constitute a change of domicile. There is no occasion, therefore, for us to examine into or express an opinion upon the correctness or incorrectness of the charge of the presiding justice in relation to these matters, though we have some doubts as to their correctness. only objection which the defendant now makes is to the refusal of the court to rule as requested, in effect, by him, that the jury were not justified upon the evidence in finding him guilty, the evidence failing to show beyond a reasonable doubt, as he contends, that he was an inhabitant of this state when the divorce was granted. A reasonable doubt is not a mere possible doubt. "It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." Com. v. Webster, 5 Cush. 320. Proof beyond a reasonable doubt is such evidence as establishes "the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it." Id. Applying these definitions to the evidence, we think that the verdict was well warranted. The defendant does not deny that the jury were justified in finding that he went to Dakota for the purpose of getting a divorce. That question need not be considered, therefore, except as it bears upon the question of his inhabitancy. For many years before he went to Sioux Falls the defendant's home had been in Worcester. He had car ried on business there, though he had sold it out in 1890, and presumably had formed such connections as one naturally would who had lived there for some time, and had been in business there. He left November 1 or 2, 1891, and reached Sioux Falls on the 5th or 6th. His departure was not accompanied, so far as appears, by any declaration that he intended to abandon Worcester as his home, though he testified that when he went away he did not intend to return. There was evidence that he had said some time previously that if he could not get a divorce here. he

would go west and get one, and he admitted on cross-examination that when he left Worcester he did not intend to live with his wife again, and that in general he wanted to get a divorce from her. Soon after his arrival at Sioux Falls he consulted an attorney about getting a divorce, and was told that it would require a residence of 90 days before the libel could be brought. On February 5, 1892, the ninety-first or ninety-second day after his arrival, the libel was filed, and the divorce was granted on the 14th May following. In the meantime he had bought an hotel business, which he sold, and then a candy business, which he also sold out. At the time when the divorce was granted, he was engaged in no business in Sioux Falls. In fact, soon after obtaining his divorce, he left Sioux Falls, and came to Worcester, where he remained, with the exception of about four weeks, when he went to Chicopee, till his marriage to Emeline Holman, in March, 1893, which took place in Philadelphia, and after which he went with her to California and Colorado. He testified that he was seeking for a permanent home while in California and Colorado, and that his home was in Sioux Falls. It appeared at the trial that after leaving Sioux Falls in June, 1892, he had not been there since, except to stop over night in passing through with said Emeline Holman after his marriage to her, and that he had had no business that called him there. It did not appear that before going there in November, 1891, he had ever been there before, or had had any business there. This evidence, with its legitimate inferences, well might satisfy the reason and judgment of the jury, and convince them to a reasonable and moral certainty that the defendant's domicile remained in Worcester, and that his purpose in going to Sioux Falls was to get a divorce, and not to change his home. The jury were not bound as matter of law to believe what he said about abandoning his residence at Worcester. They could accept some portions of his testimony and reject other portions, according to what seemed to them, upon other facts and circumstances, to be the truth. The jury may properly enough have thought that the hotel business and the candy business were mere side issues, not interfering with the main purpose for which he went to Sioux Falls, and affording but slight evidence, under the circumstances, of a change of domicile. Exceptions overruled.

CARY & MOEN CO. v. MOEN. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 19, 1894.) JURISDICTION IN EQUITY.

Equity will not take jurisdiction of an action to recover a simple debt on the ground that a pretended payment thereof was frauduJent.

Appeal from superior court, Worcester county; P. Emory Aldrich, Judge.

Bill by Cary & Moen Co., through L. H. Andrews, receiver, against Philip W. Moen, administrator, to recover unpaid subscriptions of stock. A demurrer to the bill was sustained, and plaintiff appeals. Bill dismissed.

F. P. Goulding and F. L. Dean, for appellant. Rice, King & Rice and W. S. B. Hopkins, for appellee.

HOLMES, J. This bill is brought to compel the payment of part of a subscription for stock in the company of which the plaintiff is receiver. It does not appear sufficiently that the receiver has a locus standi outside of New York; but, if it be assumed that he has, the claim is a simple claim for a debt, and is made nothing more by the allegations that there has been a fraudulent but vain pretense of paying it, of a kind which does not need the aid of equity to set it aside. That is all that the other allegations of the bill amount to. It is averred that the defendant's intestate attempted to defraud future creditors of the corporation and the corporation, by turning over worthless notes and claims in satisfaction of the balance remaining due for the stock, but that the attempt was so far vain that there was no valid satisfaction. In fact, it is alleged in terms that the estate in the defendant's hands "remains liable in law and in equity to pay" the balance. This being so, there is no ground for taking jurisdiction in equity. The claim does not arise out of the alleged frauds. It simply has failed to be defeated by them, either at law or in equity. If, in New York, equity might take jurisdiction, we presume that it would be only a means of winding up and adjusting the relations between the company, the creditors, and the stockholders under the local statutes,-a matter which we are not asked to attempt, and should not attempt. What remedies might be open in the courts of that state to protect the rights of creditors we have no occasion to consider.

We may add that, as we understand the bill, the claims turned over were valid claims against the partnership which the corporation succeeded, and they were worthless only in the sense that the partnership was insolvent, and that the whole transaction by which the corporation assumed its assets and liabilities was a fraud. But the bill does not attempt to undo that transaction, and it is hard to see how the plaintiff can repudiate the satisfaction accepted from the defendant's intestate without returning what the corporation received. However, as the bill goes on the footing of such a repudiation, there is no jurisdiction on the ground of an account to be taken of the sums, if any, properly to be allowed the defendant for the notes and claims transferred by his intestate,

Bill dismissed.

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