W. B. Harding, for plaintiff. F. P. Goulding, for defendant.

sewer construction, and having had a large ex-| fies to, is it proper construction to leave an perience therein, and being admitted to be an ex- open sewer pipe at cellar end, as was done in pert, the following question: "Suppose the premises to be constructed as plaintiff testifies to, is it this case?" The plaintiff objected to the proper construction to leave an open sewer pipe at question, but the court overruled the objeccellar end, as was done in this case?" The subject tion, and the witness was permitted to anwas a proper one for expert testimony. swer, and did answer, as follows: "No, sir; Exceptions from superior court, Worcester I do not consider it proper. It was admitcounty; STAPLES, Judge. ted by the plaintiff that the witness was This is an action of tort to recover damages qualified as an expert on hydraulic engineerfor the alleged negligence of the defendant ing, but claimed that the question was for in allowing one of its common sewers to be- the jury, and not one proper for expert testicome choked up and obstructed by dirt and mony. The court, after instructions to the filth in such a manner as to prevent the sew-jury, which were not excepted to, directed age from flowing freely in the same, whereby them to answer specially whether the plainthe sewage and water was forced back and tiff was negligent in leaving the end of his up through a private drain of the plaintiff drain-pipe open at grade at the cellar end. into his cellar, causing damage to his real The jury answered the question in the affirmaand personal property. It appeared from the tive, and returned a verdict for the defendevidence introduced by the plaintiff that the ant. Plaintiff excepts. sewer was built in 1881, under St. 1867, c. 106, and was maintained by the defendant; that the plaintiff owned a shop and storehouse situated on the street in which said sewer was laid; and that underneath said shop and store-house was a cellar used by the plaintiff for storing merchandise. It appeared that in 1884 the plaintiff constructed a private drain, leading from his cellar out and down to the common sewer, which drain, the plaintiff claimed, was designed to drain and carry off any water that might accumulate in said cellar; and that said drain, from the cellar to the sewer, was good and sufficient. The plaintiff, when he constructed said private drain, left the cellar end of the drain-pipe open, at grade with the cellar bottom, with nothing to prevent the water from flowing into the drain, or to prevent the sewage from flowing back through the same. It appeared in evidence for the plaintiff that in July, 1887, the sewage and water from the common sewer was set back and up through the private drain into the plaintiff's cellar, to a height of about 15 inches above the drain-pipe, causing damage to plaintiff's personal and real property. It also appeared that the end of the drain-pipe had remained open, and in the same condition, from the time of the construction of said drain, in March, 1884, to the time of the injury complained of, in July, 1887, and that no trouble or set back of sewage had occurred during said time. The defendant city denied any negligence on its part, and further claimed that the plaintiff was guilty of negligence in leaving his drain-pipe open at grade, at the cellar end; that the same was an unfinished drain-pipe, and was intended to be carried up into the story above the cellar, to be connected with a water-closet. Charles A. Allen, the city engineer of said city, a hydraulic engineer, having general direction of sewer construction and water-works, and having had a large experience therein, and said Allen being admitted to be an expert, was asked the following question: "Suppose a cellar is dug where the shop of the plaintiff is, and of the depth described. Suppose the premises to be constructed as plaintiff testi

KNOWLTON, J. The objection to the question to the witness Allen was not to its form, nor to its mode of bringing to his attention the facts upon which he was asked for an opinion, but that expert testimony could not be received upon the subject to which the question related. The witness was admitted to be an expert of large experience in the construction of sewers and water-works, and he must be presumed to have known whether gates, flaps, or other appliances could be used to prevent the influx of water from a drain into a cellar; and, if they could, whether they would work satisfactorily, and whether it would be easy or difficult to put them in. His study and experience may be presumed to have also taught him the probability or improbability that, from sewers constructed as those in that neighborhood, the water would set back into house drains during a flood. We are of opinion that these are not matters of common knowledge, and that the opinion of an intelligent expert may have been valuable at the trial, upon the question what precautions were reasonably necessary on the part of the plaintiff to prevent a flow of water from the drain into his cellar. Hand v. Brookline, 126 Mass. 324; Kershaw v. Wright, 115 Mass. 361; Com. v. Choate, 105 Mass. 451; Moulton v. McOwen, 103 Mass. 587. Exceptions overruled.

(150 Mass. 262)

SHAPINE V. SHAW. (Supreme Judicial Court of Massachusetts. Essex. Nov. 29, 1889.)

TITLE TO LAND.

An entry upon, and a continued occupation of, land, with the use of a way as appurtenant thereto, under a warranty deed which purports to convey the land and the right of way, as appurtenant to it, are some evidence of title to the land, and of a right to use the way, against one who shows no right to interfere with this use.

Exceptions from superior court, Essex county; DEWEY, Judge.

This was an action of tort, to recover damages resulting to the plaintiff's prop

erty because of the raising of the grade of evidence against him that there was in fact a private way by the defendant, upon which a private way to Broadway, such as the plainthe plaintiff was bounded, and in which he tiff described in his declaration, which perclaimed the right to pass and repass, on sons other than himself had a right to use in foot and with teams, to and from his prop-common with him. The actual use of this erty; said change of grade making the plain-way by the plaintiff's wife and by the plaintiff's use of the way less convenient. Judg- tiff, in connection with the occupation of ment for plaintiff, and defendant excepts. their land, in accordance with the grant conN. C. Bartlett, for plaintiff. Brickett & Poor, for defendant.

(150 Mass. 255)

GUILD V. SHEDD et al.

(Supreme Judicial Court of Massachusetts. Worcester. Nov. 29, 1889.)

TOWNS-WAYS-DEDICATION.

pressed by this court, and we are of opinion that it was correct. Bowers v. Manufacturing Co., 4 Cush. 332, 342; Hayden v. Attleborough, 7 Gray, 343; Morse v. Stocker, 1. Allen, 150; Jennings v. Tisbury, 5 Gray, 73; Hayden v. Stone, 112 Mass. 346; Com. v. Coupe, 128 Mass. 63 Veale Boston, 135 Mass. 187. Exceptions overruled.

་

Pub. St. Mass. c. 49, § 94, which is a re-enactment of St. 1846, c. 203, § 1, (Gen. St. Mass. c. 43, § 82,) declares that "no way opened and dedicated to the public use, which has not become a public way, shall be chargeable upon a city or town as a highway or town way, unless the same is laid out and established by said city or town in the manner prescribed by the statutes of the commonwealth." Held, that the effect of this statute was FELKER, Collector, v. STANDARD YARN Co.

not limited to an exemption of the town or city from the charge of supporting the ways therein mentioned, and liability to damages to a person injured by reason of defects in such ways; but that no act of acceptance by the public, or by a town or city, of a way dedicated to public use, could make it a public way, unless such way should be laid out and established by the town or city in the manner prescribed by the statutes of the commonwealth.

et al.

(150 Mass. 264)

(Supreme Judicial Court of Massachusetts. Essex. Nov. 29, 1889.) CORPORATIONS-PERSONAL LIABILITY OF DIRECT

ORS.

In a suit to enforce the penalty under Pub. St. Mass. c. 106, § 60, which makes the directors of a corporation personally liable for the corporate indebtedness, where the certificate as to the con

Exceptions from superior court, Worces-dition of the corporation, required to be made and

ter county; JOHN W. HAMMOND, Judge.

This is a suit in equity to determine the rights of plaintiff and defendants in an alleged way in the city of Worcester, claimed by the defendants, appurtenant to plaintiff's land. There was judgment for plaintiff, and defendants except.

C. A. Merrill, for plaintiff. F. P. Goulding and Joseph Mason, for defendants.

filed by law, is false, it must appear that the statements in the certificate were willfully made, with a purpose to deceive, in order to make defendants

liable.

Appeal from superior court, Essex county; JOHN W. HAMMOND, Judge.

Action by James V. Felker, collector of taxes of the city of Newburyport, in behalf of himself and all other unsatisfied creditors of the Standard Yarn Company who might join therein, against the corporation and Elisha P. Dodge, Henry B. Little, John L. Dodge, and Eben Sumner, officers and directors of the corporation, under Pub. St. Mass. c. 106, § 60, which makes directors of a corporation liable for the corporate indebtedness where the certificate as to the condition of the corporation, required to be made and filed by law, is false. Judgment for defendants. Plaintiff appeals.

F. W. Hale, for plaintiff. J. P. & B. B. Jones, for defendants.

The

KNOWLTON, J. Pub. St. c. 49, § 94, which is a re-enactment of St. 1846, c. 203, § 1, (Gen. St. c. 43, § 82,) is as follows: "No way opened and dedicated to the public use, which has not become a public way, shall be chargeable upon a city or town as a highway or town-way, unless the same is laid out and established by such city or town in the manner prescribed by the statutes of the commonwealth." Since the passage of this act, a public highway or town-way cannot be created by dedication, in this commonwealth. The statute says, in effect, that the acceptance by the public authorities, which has always been an element essential to the creation of a highway or town-way by dedication, in Massachusetts, can be shown only by a laying out or establishment of the way by the city or town in the manner prescribed by the statutes. The defendants contend that the effect of this section is limited to an exemption of the town or city from the charge of supporting the ways therein mentioned, and from liability for damages to a person injured by reason of defects in such ways. But so to hold would be to disregard and nullify the provisions of Pub. St. c. 52, which re-tificate was signed by them; that at the time quire highways and town-ways to be kept in repair at the expense of the town, city, or place in which they are situated, and which create a liability in a city or town for damages caused by a want of repair in such ways. Such a construction of the law would permit the existence of public highways and townways, the entrances to which it would be the duty of the authorities of the city or town, under Pub. St. c. 49, § 95, to close up or designate as dangerous. The ruling at the trial was in accordance with views repeatedly ex

FIELD, J. The demurrer having been overruled, in accordance with the decision in this case reported in 148 Mass. 226, 19 N. E. Rep. 220, the defendants filed an answer, and the cause was referred to a master. bill has been dismissed as to the defendants John L. Dodge and Sumner, and it is prosecuted only against the defendants Elisha P. Dodge and Little. The master reports "that the existence and non-payment of the aforesaid tax assessed in 1884 had been brought to the knowledge and attention of the defendants Little and Elisha P. Dodge before said cer

they signed and swore to the certificate the fact that the tax existed and was unpaid had escaped their recollection, and they acted in good faith, and without any intention of deceiving, in signing and swearing to the truth of said certificate. Except their forgetfulness, as aforesaid, they knew that said tax was due and unpaid;" that "if the said Little and said Dodge had given the matter consideration they would have remembered that the tax was due and unpaid. They were, however, men whose time was fully

occupied with other business." The master | present to his mind, would have convinced also reports that the business of the corpora-him that it was false. We think that the tion had been closed up in 1884; that à de- statute we are construing requires that the mand for the payment of the tax had been false statement in the certificate must be made as late as March, 1885; that Little willfully made, in order to made the defenddrew the certificate, which was signed by ants liable. Decree affirmed. both the defendants, and was sworn to by them on May 4, 1885, and was filed in the office of the secretary of the commonwealth on HORRIGAN v. INHABITANTS OF CLARKSMay 6, 1885. This certificate was required by Pub. St. c. 106, § 54.

were to determine whether the sleigh was safe and suitable to be used by travelers on a highway. The court left this to be determined by the practical judgment of the jury. As no specific exception was taken to this course, this contention, whether there is anything in it or not, is not open to the plaintiff.

99

either, or that any substantial injury would have been received but for the negligence of the plaintiff, we think that the action cannot be maintained. It does not appear from the exceptions that the present is not such a case. Exceptions overruled.

DAY v. JONES.

(150 Mass. 231)

(Supreme Judicial Court of Massachusetts. Franklin. Nov. 29, 1889.)

COMPOSITION WITH CREDITORS-PRINCIPAL AND

SURETY.

The signing by a creditor of an insolvent of a compromise agreement, by the terms of which it was not to be binding unless all of the known creditors of the insolvent, whose individual debt exceeded the sum of $20, should sign the agreement, does not release a surety on a note of the insolvent held by the creditor, where the compromise agreement is abandoned for failure to obtain the requisite signatures.

Exceptions from superior court, Franklin county; HAMMOND, Judge.

It does not appear from the exceptions that it was possible for the jury to distinguish the damage received from being thrown from the sleigh from that received from falling upon the brace, or that, if the brace had not been broken and misplaced, any substantial damage would have been received by the plaintiff. The case, we think, does not require us to consider whether in actions at common law against persons, on the ground of their negligence, the rule of law is as stated in Greenland v. Chaplin, 5 Exch. 248, namely, "that where the negligence of the party injured did not in any degree contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action. This statement Action to recover upon a promissory note is cited as accurate, except so far as it relates payable upon demand, dated June 25, 1883, to the burden of proof in Murphy v. Deane, for $1,000, given by the defendants, George 101 Mass. 455, 465. In Greenland v. Chap- W. Jones and Edwin J. Jones, to the plainlin, POLLOCK, C. B., also said: "I entirely tiff. As between the defendants themselves, concur with the rest of the court that a per- George W. Jones was the principal whose son who is guilty of negligence, and there- duty it was to pay the note in full, and Edby produces injury to another, has no right win J. Jones was a surety, and that fact was to say, Part of that mischief would not known to the plaintiff. George W. Jones have arisen if you yourself had not been was defaulted. In March, 1887, George W. guilty of some negligence.' ** *But Jones presented to his creditors an agreement at the same time I am desirous that it may of compromise, at 50 cents on the dollar, to be understood that I entertain considerable be paid on or before the 10th day of June doubt whether a person who is guilty of neg- next, and releasing said George W. Jones ligence is responsible for all the consequences from all liability. The agreement provided, which may, under any circumstances, arise, however, that it should not be binding upon and in respect to mischief which could by no the creditors "unless all of the known credpossibility have been foreseen, and which no itors of said Geo. W. Jones, whose individual reasonable person would have anticipated." debt exceeds the sum of twenty dollars, shall Certainly, if a plaintiff by his own fault ag- sign this agreement. The agreement was gravates the injury he has received, he ought signed by plaintiff and some 27 other creditnot to recover for the injury he has himself ors of said George Jones. The latter made caused, if it is practicable to distinguish it efforts to carry out the agreement of comprofrom the injury caused by the fault of the mise, but did not secure the signatures of all defendant. Whether, if it is impossible to of his known creditors whose individual debt apportion the damages, the plaintiff can re- exceeded the sum of $20, and the compromise cover at all at common law, need not now was abandoned. Edwin J. Jones asked the be considered. See Sherman v. Iron Works court to rule that the plaintiff's signing said Co., 2 Allen, 524; Holly v. Gas-Light Co., 8 agreement of compromise operated as an Gray, 123; Eastman v. Sanborn, 3 Allen, 594. agreement to give said George W. Jones time, This is an action against the inhabitants and not to sue him within such time. of a town, under Pub. St. c. 52, § 18, which court declined so to rule, and found for the provides that "if a person receives or suffers plaintiff as against both defendants. Defendbodily injury * * *through a defect ant Edwin J. Jones excepts. *. * in or upon a highway * ** S. T. Field, for plaintiff he may recover * *the amount of for defendant. damage sustained thereby," etc. In actions under this provision of the statute, the injury must have been received solely in consequence of the defect in the highway. If between the cause and the effect the negligence of the plaintiff intervenes, so that the injury received is the direct consequence of this negligence, as well as of the defect in the way, and if it is impossible to determine what portion of the injury is caused by

*

*

The

J. A. Aiken,

FIELD, J. The compositron agreement under seal which was signed by the plaintiff never took effect, because by its terms it was "not to be binding" upon those who signed it, "unless all of the known creditors of George W. Jones, whose individual debt exceeds the sum of twenty dollars, shall sign this agreement." The exceptions state that Mr. Jones did not "secure the signatures of