Worcester morning daily spy., 1898-01-07
AMONG THE COURTS.

| VS.. Ddnlel >. kennedy, both or Hard
wick in an action of tort to recover for
trespass, the exceptions of the plaintiff
are sustained, the court holding that
the Instructions which We're given did
not direct the attention of the jury suf-
| ficiently to the effect upon the acquisi-
| ton of rights of way of crossing the
| town in different directions The claim
OF the plaintiff was that the defendant
forcibly entered am Enclosure Of hers
and drove a pair of horses and a bob
sleigh over her land. In consequence
of this great damage was done her land
and gate was destroyed. At the first
| trial the verdict was for the plaintiff,
| the jury assessing damages in the sum
of S1s5.90. To this the defendant ex-
cepted, and new trial was ordered, the
1 defendants exceptions being allowed
/ On the second trial of the case verdict
4 for the defendant was returned, to
which the plaintiff excepted, the excep-
( lions being sustained by the decision of
| the full bench A third trial will result.
| Blackmer & Vaughan for the plaintiff;
H. M. Coney, H. c. Davis for the defend
ant
| The second case was that Of the petit
ton Of Danford Johnson VS.. John E.
Kimball ct al, seleetmen Of the town Of
| oxford The petition is dismissed, the
| court ruling that "a janitor Of the Me-
| mortal Hall of the town Of Oxford is
not in the labor service of the town
within the meaning of the statutes OF
| 1896, chapter 517." section reading: In
| towns and cities in which the civil serv-
/ ice act and the rules of the civil serv-
| ice commissioners have not been applied
to the labor service, the selectmen Of the
towns and the city councils Of the cities
| shall take such action as may be neces-
| sary to secure the employment OF Vet
| Grams in the labor service of their re-
spective towns and cities, in preference
| to all other persons, except women"
The case was in the nature of petit
| ton for a mandamus to the selectmen
of the town to appoint the petitioner
| ianitor of Memorial Hall in that town,
| the point involved being the applica-
! ton of the veterans preference act, the
position of janitor being an appointiye
one under the selectmen. The petitioner
! had been janitor of the hall in the years
! 1898 and 1894, and was again appointed
/ In March, 1895, to fill an unexpired term
/ After the town election, April 5, the
| petitioner made application for his re-
! appointment, citing the veterans pref
| erence act in support of his application.
| Chairman Kimball said he had nothing
( to do with the act, and the petitioner
4 was given hearing by the board. The
| petitioner made application before the
| board, and showed that he was a veter-
an and had no physical impairment to
! prevent his performing the duties OF
janitor. May the petitioner was mott
I fled by the chairman of the board OF Sc
/ lectmen that his term of office had ex-
pired by limitation and requesting him
| to turn over the keys Of his office to
/ Patrick Foster, his successor.
The petition for mandamus was to
4 compel the selectAhen to take action
4 necessary to secure the appointment Of
\ the petitioner as janitor of the town
hall: that they be required to formulate
proper rules for the examination of APP
plicants for the position, and that they
be required 20 take steps toward the
! appointment Of veterans in the labor
service of the town.
The claim of the petitioner was that
the position of janitor should belong to
! the labor service Of the town. In this
| connection the statutes provide that
! "in towns or cities in which the civil
service act and the rules of the civil
service commission have not been ap-
piled to the labor service, the selectmen
| of towns and the city council of cities
shall take such action as may be nee
essary to secure the employment OF
| veterans in the labor service of their
| respective towns and cities, in prefer
ence to all other persons except
women"
After the petition for mandamus
was made, the matter was given a
| formal reservation to the supreme
court
Col. William A. Gile appeared for the
petitioner; Hopkins, Smith & Hopkins
| for the defendants.
The full bench has affirmed the decree
of the superior court in the case of the
! Clinton Gas Light Company VS.. Eben
I S. Fuller ct all Diminishing the plaintiff S
bill The plaintiff complained that the
] defendants had built u dam on pond
at Clinton without right, and had inter-
fered with the natural Aow Of the
stream through its land, upon which it
has built an extensive gas and electric
| lighting plant. 1t asked for an injunc-
| ton to restrain the defendants from
maintaining the dam.
The defendants contended, and the
court holds, that they had the right to
erect the dam and to raise the waters
of the pond up to their present height.
Herbert Parker and F. f. Gunnison
for plaintiffs; w. A Gle and Jonathan
Smith for respondents.
In the case of Benjamin p. Clark ct
al VS.. Mary F. Mcmahon, the finding
for the tenant in the lower court is sus-
tanned. This was a writ of entry
brought to try the title to land. 1t APP
pears that Simon Mcmahon made a con-
veyance of the land, through a third
I person, to his wife, the tenant in this
suit, at a time when the conveyance
rendered him insolvent.
Il This conveyance was without consid-
Grafton, but before he married, he had
made an agreement to convey the prop
erty in case she married him. This
agreement was not in writing. The
plaintiffs, who were creditors of Nc
Mahon, contended that the conveyance
was invalid as against them There was
no fraud in fact in the making of the
conveyance.
The court holds that in the absence
of fraud in fact the voluntary convey
ance by Mcmahon to his wife made as;
settlement to her is not as matter of
law fraudulent and void as to existing
creditors and that they cannot upset it.
4 9. G. Bancroft for demandants; T. f.
Il Larkin for tenant.
SUPERIOR CIVIL COURT.
In the superior civil court, before
Judge Bond, Thursday, the case of
Frank D. Gleason vs.. Freedom G.
Smith of Leominster was resumed, and
at the close OF the evidence Judge Bond
4 found that there was insufficient evil
dence to give the case to the jury A
verdict for the defendant was ordered
and returned. The case was an action
of tort to recover for injuries received
while in the defendants mill at Leo
minister, Dec. 10, 1885, it being alleged
that the moulding machine at which the
plaintiff worked was imperfect and de-
fective, and that it was running at a
dangerous rate of speed. CThe expert
testimony of Alderman Henry Brannon
was ruled out, City Solicitor Rugg ex-
cepting) The case will be reported to
the supreme judicial court. Thayer &