provides that the application shall be by mo- | through the negligence of the defendant. tion, and a motion is an application to a court. The defendant operated a railroad terminatBouv. Law Dict.; Rap. & L. Law Dict., see ing in Springfield. Among the tracks adja"Motion." In the drainage act of 1883 it is cent to its depot was a spur track, used for provided that the owners of lands affected by loading and unloading freight-cars. No obthe work may remonstrate against the report structions or bunters were placed at the end of the drainage commissioners, and it is held of this track to prevent cars from running in the case of Gilbert v. Hall, 115 Ind. 549, off. About six feet from the end of the track 18 N. E. Rep. 28, that filing a remonstrance was a telegraph pole. This track, as well as in the clerk's office within 10 days, without the other tracks of the freight-yard, joined having presented the remonstrance to the the main-line track at a point quite a distance court, where there was ample opportunity to to the east, where the main-line track had a do so, was not remonstrating against the re-downward grade. On the day of the accident port of the commissioners, within the mean- the plaintiff drove up to the platform at the ing of the statute. If it be true that it be front of the depot, alighted from his hack, necessary to present a remonstrance to the and was at the door thereof, in the act of colcourt within the time allowed, it seems to us lecting the hack-fare of the passenger, when it must certainly be necessary to present a some freight cars, which stood at the end of motion for new trial to the court. In the the spur track, were driven against the pole case of Gilbert v. Hall, supra, the court says: with sufficient force to break the same, and "Ten days are allowed by statute within cause one or more wires to fall upon the which to remonstrate against the report, not horses; so frightening them that they ran to file a remonstrance with the clerk. The away, and injured the plaintiff. It appears report of the commissioners, like the verdict that the cause of the cars being thus driven of a jury, is made or returned to the court, into the pole was as follows: The employes and a remonstrance, like a motion for a new of the defendant had attached a locomotive trial or for a continuance or any other simi- to a train of about 12 cars, and were drawlar motion, must be made to the court." The ing it on to the main-line track, for the purstatute declares it shall be by motion, upon pose of shifting out an empty flat-car, which written cause filed at the time of making the was at the rear end of the train. They had motion; clearly contemplating that the mo- drawn the cars onto the main-line track, tion shall be made or presented to the court, when one of the brakemen gave the engineer and also that the cause or reason for the mo- the signal to give them "the slack," that is, tion shall be reduced to writing, and filed at back sufficiently to relieve the tension and the same time of making the motion; the admit of drawing the pin of the car to be motion to be entered by the court, and the shifted out, so that it could be run onto the written reasons filed by the clerk. In this track where it was to be placed. The encase there was no motion made for a new gineer gave "the slack," and, as soon as he trial within the time fixed by the statute, and stopped his engine, and the train straightened the court erred in allowing the motion filed out, a draw-bar pulled out of the fifth car with the clerk to be substituted. There is from the engine, causing that car, with seven no question presented on the motion for new others in the rear thereof, to run down the trial. Judgment affirmed, with costs. spur track, into the cars standing at the foot thereof. As soon as said cars broke away, the defendant's servants tried to stop them by setting the brakes, and were able to set all the brakes but those on two cars before they struck the other cars. There was no evidence but that the cars that broke away were provided with suitable brakes, or that the company was guilty of any negligence in the management thereof after they broke away. It appeared that the draw-bar which pulled out, causing the train to break away, was held in position on the car to which it was annexed by an iron key, which, passing through the bar, in a slot made for the purpose, prevented the bar drawing out; that this key, as well as the entire draw-bar apparatus, was of the kind in general use on freight-cars by the railroads of the country; and that the pulling out of the draw-bar was caused by the key stripping off, allowing the bar to pull through an iron collar against which the key rested. It appeared that there was no way of discovering any defect in the key, except by an inspection thereof, while the draw-bar was on the car and the key was in its position, and that the defendant em (150 Mass. 182) SHAW v. NEW YORK & N. E. R. Co. (Supreme Judicial Court of Massachusetts. Hampden. Nov. 27, 1889.) RAILROAD COMPANIES-NEGLIGENCE. 1. In an action for personal injuries, it appeared that a railway company had not put up a bunter, or other obstruction, at the end of a spur track; that in consequence thereof cars ran off the end of the track, and, striking a telegraph pole, loosened the wires attached to the pole so that they fell down on plaintiff's horses causing them to run away, whereby plaintiff was injured. Held, that it was a question for the jury whether the failure to put up a bunter, or other obstruction, at the end of the track was negligence for which the railway company was liable. 2. An exception to the instructions of the court on the ground that they were not covered by the pleadings cannot be maintained on appeal, where it does not appear that the instructions were based on the pleadings. Exceptions from superior court, Hampden county; CHARLES P. THOMPSON, Judge. This was an action of tort, brought by Henry W. Shaw against the New York & New England Railroad Company, to recover damages for personal injuries received ployed a competent inspector, who inspected the same on the arrival of the car that day, and did not find any imperfections therein. The defendant requested the court to rule (1) That, on all of the evidence of the case, the plaintiff could not recover. (2) that if, without the fault or negligence of the defendant, the draw-bar key broke, and the drawbar pulled out, causing the train to break away, and the defendant, by its servants, made due, reasonable, and proper exertions to control it after it had thus broken away, the plaintiff cannot recover; (3) that if, without the fault or neglect of the defendant, the draw-bar of the freight-car pulled out, and by reason thereof the train escaped from the control of the defendant's servants, and, while thus beyond their control, ran into the telegraph pole causing the wires thereon to be dislodged or broken, so they fell upon the horses of the plaintiff, by reason of which said horses escaped from his control and he was injured, the plaintiff cannot recover; (4) that if the train escaped from the control of the defendant's servants, without fault or negligence on their part, the defendant is not liable, although, had a bunter or other obstruction existed at the end of the track, the pole would not have been hit, and the wires thereon dislodged. The court refused to give the instructions as requested, but gave them with this modification: "Unless there was a defect in the construction of the road that rendered it probable that the cars would go off of the end of the track, "--and instructed the jury that the defendant was under no legal obligation to put up a bunter; that it was for them to say whether they would have a bunter or not; but, if they did not, they were held to such care as would be necessary to the management of their cars, to make the management of them reasonably safe without a bunter. The court gave appropriate instructions as to what constituted ordinary care, not excepted to. The jury found for the plaintiff, and the defendant excepted. J B. Carroll, for plaintiff. Chas. L. Long and R. M. Saltonstall, for defendant. C. ALLEN, J. The injury for which the plaintiff seeks to recover arose in this manner: The railroad track was laid upon a descending grade, which at its lower end stopped at a street. There was no bunter, or other obstruction, to prevent cars from going beyond the end of the track. There was a telegraph pole near the end of the track, and, as we infer, in the street; and the injury to the plaintiff was caused by cars which accidentally, and apparently without the defendant's fault, had become detached from a train running beyond the end of the track, and striking against the telegraph pole, which was thereby broken, and one or more of the wires fell upon the plaintiff's horses, and frightened them. The want of a bunter or other obstruction at the lower end of the track was the defect relied on. We cannot say that this was not such a defect as to warrant a verdict for the plaintiff. The jury might properly find that a bunter should have been put up, in order to guard against just such accidents. The defendant now objects that the want of a bunter was not a defect covered by the declaration. But the request for instructions, and the ruling given, did not rest upon the pleadings at all. If the request had rested on this ground, the plaintiff might have had leave to amend, if an amendment was necessary, which is doubtful. This objection is not now open to the defendants. Exceptions overruled. (150 Mass. 168) WAINWRIGHT v. SAWYER. (Supreme Judicial Court of Massachusetts. Hampshire. Nov. 27, 1889.) WILLS-ESTATE CONVEYED-DEEDS-DESCRIPTION. 1. Where a testator by will devises all his property, real and personal, to his wife, in trust for herself and her children, with a provision that when the youngest living child arrives at his majority one-half of the estate shall be divided equally among the children then living, each child takes an absolute, alienable interest in the estate, which can be defeated only by his death before the distribution, or by a disposal of the estate by the trustee. 2. In such case, when one of the children, by an instrument in writing, sells and assigns to the trustee, her heirs, executors, administrators, and assigns, all his right, title, and interest in and to tion which has been, is, or may be in the possesthe estate, and in any property of every descripsion of such trustee under the will, such instrument is sufficient to pass to the grantee all the grantor's share in the estate, real or personal, that may be coming to him upon the majority of the youngest child. 3. Such instrument cannot be avoided on the ground that it does not sufficiently describe the real estate granted thereby. Exceptions from superior court, Hampshire county; P EMERY ALDRICH, Judge. This was a writ of entry, brought by J. Arthur Wainwright, as trustee, against Sarah J. Sawyer, to recover an undivided one-eighth of a parcel of land in Easthampton. There was a plea of nul disseisin, and trial to the court without a jury. The demandant, to establish his title, offered in evidence an execution issued on a judgment in favor of one W. Meeker Littell v. Henry H. Sawyer, and the sheriff's deed conveying said interest to the demandant. The attachment on the writ, on which the judgment was obtained and the execution levied, was made January 28, 1887. It appeared in evidence that Edmund H. Sawyer died in 1879, leaving a widow, the tenant in this action, and four children, one of whom, Henry H. Sawyer, was the defendant against whom the judgment was obtained. Henry H. became of age before his father died. The will of Edmund H. Sawyer was duly probated, and was as follows: "I give and bequeath to my beloved wife, Sarah J. Sawyer, in trust for herself and children, all my real and personal estate of every description. It is my will that she have the care and education of the children, using for that purpose whatever sums she may deem necessary, and, when the youngest living child arrives to the age of twenty Hill & Wainwright, for demandant. T. G. Spaulding, for tenant. one years, then one-half of the property shall | for her; that there was no intimation that the be divided equally among all the children liv-conveyance of April 9, 1885, was in fraud of ing. The remaining half shall belong and the creditors of Henry H. Sawyer; that there be given to my wife, for her sole use and dis- was no suggestion of any want of bona fides posal." The real estate attached and sold un-between the trustee and the cestui que trust; der the judgment was a part of the estate of and that it was the intention of the parties to Edmund H. Sawyer, mentioned in the will. include the title to, and interest in, the real The four children are living, and the young-estate of Henry H. Sawyer as cestui que trust est child became of age January 28, 1887. under the will, which was then in possession The tenant introduced in evidence an instru- of the trustee, nor was any claim made by the ment under seal, purporting to be a deed from demandant that the tenant might not rightHenry H. Sawyer to her. The instrument fully take a conveyance directly from the cesand signature thereto are in the handwriting tui que trust. The court stated in its decisof said Henry H., and is as follows: "East- ion of the cause that "it was a question of hampton, Mass., 9th April, 1885. In con- fact, to be answered by the court, whether sideration of one dollar to me in hand paid the grantor intended to convey his real as by Mrs. Sarah J. Sawyer, the receipt of which well as personal estate; and, that is to be deis hereby acknowledged, and for other valua- termined by the words used in the instrument ble considerations, I hereby sell and assign to of conveyance, read in the light of surroundher, her heirs, executors, administrators, and ing circumstances, the situation of the parassigns, all my right, title, interest, and share ties, and the property." And the court ruled, in and to the estate of my father, Edmund as matter of law, that the instrument of April H. Sawyer, deceased, and in any property of 9, 1885, when so read, was effective, and sufevery description whatever there has been, is ficient to convey to the tenant the real estate now, or may hereafter be in the possession of described in the demandant's writ. The court the said Sarah J. Sawyer, as trustee of said found generally for the tenant in this action, estate, under the will of said Edmund H. to which findings and rulings the demandant Sawyer, deceased, to her and their sole use excepted. and behoof forever. Witness my hand and seal at Easthampton, Massachusetts, this 9th day of April, A. D. 1885. HENRY H. SAWYER, [and Seal.] Witness: Wм. B. HALE." This instrument was duly acknowledged March 6, 1886, and recorded March 11, 1886. The tenant testified that the above instrument was delivered to her, or to William B. Hale, who advised her as to taking it, and acted as her agent. It further appeared that the tenant qualified as trustee under her husband's will in 1879, and was in possession as trustee of all the real estate left by the will, and was acting in that capacity when the instrument was executed and delivered; and that since the time of the conveyance she has been in possession of the undivided eighth part thereof described in the demandant's writ. The demandant then introduced in evidence, against the objection of the tenant, an instrument in the handwriting of Henry H. Sawyer purporting to be a quitclaim deed from him to Sarah J. Sawyer of all his right, title, and interest in several parcels of land therein fully described, and including the parcel in controversy. This instrument was delivered and recorded January 29th,-the day after the attachment in the original suit was made. The demandant claimed that under the will of Edmund H. Sawyer Henry H. took no title to the real estate in question until the youngest child became of age; that the instrument bearing date April 9th, 1885, was of no validity as a deed of real estate, and passed nothing, unless it was a release of his contingent interest in the personal estate of his father; and that the instrument was never delivered to the tenant. The judge before whom the case was tried found as facts that the instrument of April 9, 1885, was duly delivered to the tenant, or to William B. Hale, C. ALLEN, J. According to numerous recent decisions, each child of Mr. Sawyer took an interest in his estate which was alienable before the youngest child became of age. It was not a mere possibility, but a fixed right, to take as purchaser under the devise, which could be defeated only by his death before the time for distribution, or by Mrs. Sawyer's disposing of the property. Assuming that she had an implied power to sell and use the proceeds, this did not defeat the alienability of the son's interest. The alienation, of course, would be subject to all contingencies. See Welsh v. Woodbury, 144 Mass. 545, 11 N. E. Rep. 762, and cases cited; Dodd v. Winship, 144 Mass. 461, 11 N. E. Rep. 588; Whipple v. Fairchild, 139 Mass. 262; Putnam v. Story, 132 Mass. 205, and cases cited. Looking at the language of the deed in the light of the circumstances, it appears to have been the son's intention to convey his whole interest in his father's estate, both real and personal. The want of a detailed description of the real estate is but a slight circumstance to the contrary. might be uncertain in his mind what particular pieces of real estate would be in his mother's possession when the youngest child should become of age. The instrument of conveyance was a deed under seal. He appears by the date to have taken pains to acknowledge it some time after its execution. It ran to the grantee, her heirs, executors, administrators, and assigns. The habendum was to her and their sole use and behoof, forever. The words of description of the subject of the grant are as broad as the words of the devise. He sells and assigns all his right, It (150 Mass. 166) SHAW v. SMITH. (Supreme Judicial Court of Massachusetts. A promissory note, in the ordinary form, payable to the estate of a named person or order, has a sufficiently certain payee to constitute it a promissory note, within the meaning of Pub. St. Mass. c. 197, §§ 6, 7, providing that an action on a promissory note, signed in the presence of an attesting witness, may be brought within 20 years. Exceptions from superior court, Hampshire county; CALEB BLODGETT, Judge. title, interest, and share in and to the estate | shall be six years, it is enacted in Pub. St. c. of his father, "and in any property of every 197, § 6, that "none of the foregoing provisdescription whatever there has been, is now, ions shall apply to an action brought upon a or may hereafter be in the possession of the promissory note signed in the presence of an said Sarah J. Sawyer, as trustee," etc. We attesting witness, if the action is brought by think his intention to transfer his whole in- the original payee, or by his executor or adterest is plainly to be inferred, and the words ministrator;" and by section 7 such an acof the deed are sufficient in form. There are tion may be brought within 20 years. The no special and exclusive words of grant defendant contends that the instrument sued which must necessarily be used. The words on is not a promissory note, for want of a "sell and assign" are sufficient, (Russell v. sufficiently definite payee, and he cites two Coffin, 8 Pick. 143, 151, 152; Bridge v. Wel- decisions which sustain him in this contenlington, 1 Mass. 219; Aqueduct Corp. v. tion. Lyon v. Marshall, 11 Barb. 241; Tittle Chandler, 9 Allen, 159, 167; 3 Washb. Real v. Thomas, 30 Miss. 122. But we think this Prop. 330; 4 Kent, Comm. 461;) and it was not is too strict an application of the doctrine necessary to specify particular pieces of real that the person to whom a note is payable estate, (Litchfield v. Cudworth, 15 Pick. 23; must be clearly expressed. It is an equally Shep. Touch. 250.) Exceptions overruled. general rule that it is sufficient if there is in fact a payee, who is so designated that he can be ascertained. Story, Prom. Notes, S 36. The illustrations of the manner in which this rule has been applied are numerous. Thus, written promises have been held to be valid notes or bills of exchange, though made payable to bearer, (Grant v. Vaughan, 3 Burrows, 1516;) or to persons designated simply by their office, without naming them, e. g. the treasurer of the first parish in H., or his successor in said office, (Buck v. Merrick, 8 Allen, 123;) the trustees of a particular church, (Noxon v. Smith, 127 Mass. 485; Holmes v. Jaques, L. R. 1 Q. B. 376;) the manager of the Provincial Bank of England, This was an action brought by A. C. Shaw, (Robertson v. Sheward, 1 Man. & G. 511;) as special administrator of the estate of F. the treasurer general of the royal treasury B. Bridgman, against Loman A. Smith, ad- of Portugal, (Soares v. Glyn, 8 Q. B. 24;) the ministrator of the estate of Eugene Bridg-executors of the late W. B., (Hamilton v. man, upon an instrument in writing, which Aston, 1 Car. & K. 679;) the administrators was in the following words and figures: of a particular estate, (Moody v. Threlkeld, "$126.00. Belchertown, July 19, 1873. For 13 Ga. 55; Adams v. King, 16 Ill. 169;) the value received, I promise to pay F. B. Bridg-trustees acting under the will of the late Mr. man's estate or order one hundred and twen- W. B., (Megginson v. Harper, 2 Cromp. & ty-six dollars, on demand, with interest an- M. 322;) also to the heirs of a particular pernually. EUGENE BRIDGMAN. Witness: A. son, even though that person was living at BRIDGMAN." On the trial to the court with- the time, (Bacon v. Fitch, 1 Root, 181; out a jury the instrument was offered in ev- Lock wood v. Jesup, 9 Conn. 272; Cox v. idence after due proof that it had been signed Beltzhoover, 11 Mo. 142;) to a business by defendant in the presence of A. Bridg-name adopted by the person in interest, man, the attesting witness. It also appeared (Bryant v. Eastman, 7 Cush. 111; Brown v. that R. S. Bridgman and H. S. Bridgman Parker, 7 Allen, 337;) and to the steamboat had been appointed administrators of the es- Juda, and owners, (Moore v. Anderson, 8 tate of F. B. Bridgman before the execution Ind. 18.) So a bill which was indorsed to a of the above instrument; that on March 13, person who was already deceased was held 1886, prior to the date this action had been valid in the hands of his legal representabegun, they had died, and on the same day tives. Murray v. East India Co., 5 Barn. & plaintiff had been appointed special adminis- Ald. 204. More literally in point in the trator of such estate; that on April 6, 1886, present case, and directly opposed to the two he had been appointed administrator de bonis decisions relied on by the defendant are Pelnon, and as such admitted as plaintiff in tier v. Babillion, 45 Mich. 384, 8 N. W. Rep. this case. The court gave judgment for de- 99, where a written promise, payable to the fendant, on the ground that the above in-order of J. V. Mebling's estate, was held to strument was not a promissory note, within be a good note; and McKinney v. Harter, 7 the meaning of the statute, and consequently Blackf. 385, which is substantially similar. barred by the statute of limitations. The plaintiff excepted. R. W. Lyman, for plaintiff. C. ALLEN, J. After providing that the ordinary limitation of actions of contract See, also, Storm v. Stirling, 3 El. & Bl. 832; same case, nom. Cowie v. Stirling, 6 El. & Bl. 333; Yates v. Nash, 8 C. B. (N. S.) 581, where a promise to the officer for the time being of a society was held too indefinite, though the general rule, as applied in other cases, was recognized. In the case before among the several creditors, in accordance us, the promise was to pay to F. B. Bridg- with the order of the court. There was no man's estate or order. He was dead, and ad-record of the insolvency court showing that ministrators had been appointed. There plaintiff had made any deposit, and plaintiff could be no doubt that the promise was in- never notified defendant that he had made tended to be one of which the administrator's such deposit, or that he had any claim therecould avail themselves. They were in exist- for. Defendant was ignorant thereof until ence, and were ascertainable. If the admin-after the final distribution had been ordered istrators of his estate had been made the by the court, and the proceedings had been payees, without naming them, there can be no closed, except the payment of the balance of shadow of question that it would have been the dividend. The amount of assets orsufficient. It savors of too much refinement dered distributed was $1,800, all of which, to hold that the instrument was not a valid except the sum of $200, had been paid out by promissory note, for want of a sufficiently the defendant at the time of the notice to dedefinite payee. This is the only question fendant of plaintiff's claim to said $40. presented by the bill of exceptions. Excep- Upon this statement of the facts the court tions sustained. ruled that the action could not be maintained, and ordered judgment for the defendant. Plaintiff appealed. (150 Mass. 180) ROGERS v. SIBLEY. (Supreme Judicial Court of Massachusetts. Hampden. Nov 27, 1889.) INSOLVENCY-PRACTICE. In proceedings in insolvency, where the petitioner deposits with the register the sum required by law to cover the cost of such proceedings, and fails to make any claim therefor of the assignee, he cannot, after the final accounting and order for the distribution of the assets, maintain an action against the assignee for the recovery of the amount he deposited. Appeal from superior court, Hampden county; LINCOLN F. BRIGHAM, Judge. On C. ALLEN, J. The assignee.in insolvency not only never had in his own possession the money deposited by the plaintiff with the register of insolvency, but was ignorant of the fact of the deposit till after final distribution of the funds in his hands had been ordered, and nearly completed. The plaintiff LIVELY . RICE. (150 Mass. 171) (Supreme Judicial Court of Massachusetts. Franklin. Nov. 27, 1889.) WARRANTY-EXCEPTIONS. should have obtained an order of court for the assignee to make the payment to him. If the order for a final distribution to the This is an action brought by John H. creditors was inadvertently made, without Rogers against Lawson Sibley, as assignee of providing for the repayment of the money W. H. Lewis & Co. The facts are as follows: advanced by the plaintiff, the plaintiff himPlaintiff was a creditor of the firm of W. H. self was to blame, and not the assignee. It Lewis & Co. On August 4, 1887, plaintiff On August 4, 1887, plaintiff would not be a reasonable construction of filed in the court of insolvency for said county the statute (Pub. St. c. 157, § 137) to hold the his petition as creditor against said firm, ask-assignee liable, and bound to make such paying that the firm he adjudged insolvent debt-ment, under the circumstances mentioned in ors, and deposited with the register the sum the agreed statement of facts. Judgment of $40 for the payment of the court fees in for defendant affirmed. the proceeding, as required by law. August 13, 1887, the petition was granted, W. H. Lewis & Co. were adjudged insolvent debtors, and a warrant in insolvency issued. On September 17, 1887, defendant was duly chosen as assignee of the estate, and accepted the trust. On the same day, plainDefendant conveyed certain lands, covetiff proved his claim as creditor. On Novem-nanting that the premises were "free from incumbrances, except two mortgages, [describing them] ber 5, 1887, a second meeting of the creditors which mortgages [the grantee] assumes and agrees was held, of which plaintiff was duly notified, to pay; and a dividend was ordered paid on preferred to the grantee, and his heirs and assigns, forever, claims of creditors as they appeared of record. against the lawful claims and demands of all persons. Held, that this warranty could not be conOn February 4, 1888, a third meeting of the strued to include the claims under the mortgages creditors was held, and the account of the as- described therein, it being the evident intention of signee was filed, of which meeting, and of the parties to except them from the warranty. the filing of the account, due notice was given plaintiff. Adjourned third meetings were held April 7, 1888, June 2, 1888, and June 9, 1888, of all of which meetings plaintiff had due notice. At the last-named meeting defendant filed his final account, and the same, together with his first account, was allowed by the court, and an order of distribution made by the court of the balance remaining in the assignee's hands, to which plaintiff made no objection. Defendant thereupon proceeded to distribute the assets in his hands * * * and that I will warrant the same Exceptions from superior court, Franklin county. This was an action for breach of a covenant of warranty brought by Joseph Lively against Jason A. Rice. There was judgment for defendant, and plaintiff excepts. S. Sanders, for plaintiff. S. T. Field, for defendant. MORTON, C. J. On May 10, 1888, the defendant was the owner of a piece of land in Rowe, which was subject to two mortgages |