RROR to the District Court for Johnson & Eng. Encyclop. Law, 1047; Little v. Phoenix in an action upon a policy of fire insurance. Affirmed. The facts fully appear in the opinion. Messrs. S. P. Davidson and Harwood, Ames & Kelly, for plaintiff in error: Weide, 81 U. S. 14 Wall. 375, 20 L. ed. 894); and must be with willful intent to defraud the insurer (Parker v. Amazon Ins. Co. 34 Wis. 363; Jones v Mechanics F. Ins. Co. 36 N. J. L. 29; Marion v. Great Rep. Ins. Co. supra; 2 Wood, F. Ins. 1004, note 2 et seq.); and these are each questions of fact for the jury. Security Ins. Co. v. Fay, 22 Mich. 467; Repub Under the provision of the policy that "all fraud or attempt at fraud by false swearing or otherwise shall forfeit all claim on this Company, and shall be a complete bar to any re-lic F. Ins. Co. v. Weide, supra; Helbing v. Stea covery for loss under this policy," the policy was void at the time this suit was brought by reason of plaintiff making the false entries and statements as to the amount of his loss. Sleeper v. New Hampshire F. Ins. Co. 56 N. H. 401; Weide v. Germania Ins. Co. 1 Dill. 441; Ferriss v. North American F. Ins. Co. 1 Hill, 71: Geib v. International Ins. Co. 1 Dillon, 143; Wall v. Howard Ins. Co. 51 Me. 32; Regnier v. Louisiana State M. & F. Ins. Co. 12 La. (O. S.) 336; Smith v. Queen Ins. Co. 1 Hannay (N. B.) 311; Lewis v. Council Bluffs Ins. Co. 63 Iowa, 193; Longley v. Northern Ins. Co. 3 Russ. & C. (Nova Sc.) 516; Sibley v. St. Paul F. & M. Ins. Co. 9 Biss. 31; Leach v. Republic F. Ins. Co. 58 N. H. 245; Hansen v. American Ins. Co. 57 Iowa, 741; Mullin v. Vermont Mut. F. Ins. Co. 2 New Eng. Rep. 483, 58 Vt. 113; Claflin v. Commonwealth Ins. Co. 110 U. S. 81 (28 L. ed. 76). The essence of fraud lies in the intention. See Moore v. Virginia F. & M. Ins. Co. 28 Gratt. 508. The proofs were not made in time, and there was no waiver by the Company of the failure to make them. The policy was absolutely void at the time Winn says he sent in the statement. He could not have been prejudiced by the Company's neglect to notify him of its refusal to accept proofs at that time, for he then had no contract with the Company, and his rights were not and could not be prejudiced. See Underwood v. Farmers J. S. Ins. Co. 57 N. Y. 500; Clarke v. New England Mut. F. Ins. Co. 6 Cush. 342; Blossom v. Lycoming F. Ins. Co. 64 N. Y. 162; Brink v. Hanover F. Ins. Co. 70 N. Y. 593; Ripley v. Etna Ins. Co. 30 N. Y. 164; Phoenix Ins. Co. v. Stevenson, 78 Ky. 150; Security Ins. Co. v. Fay, 22 Mich. 467; Ñ. Y. Cent. Ins. Co. v. Watson, 23 Mich. 487; Neely v. Onondaga Co. Mut. Ins. Co. 7 Hill, 49; Diehl v. Adams Co. Mut. Ins. Co. 58 Pa. 443. Messrs. A. M. Appleget and C. K. Chamberlain, for defendants in error: Fraud is an affirmative defense and must be clearly proved. Ahlman v. Meyer, 19 Neb. 63; Clemens v. Brillhart, 17 Neb. 337; Clark v. Tennant, 5 Neb. 549. Admitting that the first proofs of loss were grossly incorrect, they do not show that any fraudulent intent existed; and when fraud in the proofs of loss is pleaded as a defense the burden of proving the intent is upon the party pleading. Wood, F. Ins. 1004; Marion v. Great Rep. Ins. Co. 35 Mo. 148; Franklin F. Ins. Co. v. Updegraff, 43 Pa. 350. The false swearing must be in a matter materially affecting the risk (Claflin v. Commonwealth Ins. Co. 110 U. S. 81, 28 L. ed. 76; Am. Ins. Co. 54 Cal. 156. Corrections may be made at any time before trial in the proofs of loss. 2 Wood, F. Ins. 995 et seq. See McMaster v. North America Ins. Co. 55 N. Y. 222. A claim that insured has forfeited his policy by fraud is a waiver of notice of loss. Peoria M. & F. Ins. Co. v. Whitehill, 25 Ill. 466. A denial of liability upon other grounds than the want of notice is a waiver of notice. 2 Wood, F. Ins. 981, note, 940; Franklin F. Ins. Co. v. Coates, 14 Md. 285; Rogers v. Traders Ins. Co. 6 Paige, 583; McBride v. Republic F. Ins. Co. 30 Wis. 562; Lycoming F. Ins. Co. v. Dunmore, 75 Ill. 14. A full examination under oath of the assured concerning the loss constitutes a waiver of the formal proof of loss. 2 Wood, F. Ins. 951. All information which the insurers gain by going into an investigation inures to the benefit of the assured. Sexton v. Montgomery Co. Mut. Ins. Co. 9 Barb. 191; Maher v. Hiberian Ins. Co. 67 N. Y. 283; West Rockingham Mut. F. Ins. Co. v. Sheets, 26 Gratt. 854. A party desiring to rescind a contract on the ground of fraud must, as soon as the fraud is discovered, place the other party as near as may be in statu quo. Clark v. Tennant, 5 Neb. 549; First Nat. Bank v. Yocum, 11 Neb. 328; Kerr, Fr. and Mis. 52. This principle has been applied to forfeiture of fire policies. Fishbeck v. Phenix Ins. Co. 54 Cal. 422. Maxwell, J., delivered the opinion of the court: On the 25th day of May, 1886, the plaintiff in error issued to the defendants in error a policy of insurance, against loss or damage by fire for one year, upon the general stock of merchandise carried by the latter as retail merchants in their store at Elk Creek, Neb. The policy contained permission for $4,000 concurrent insurance, and a clause limiting the Company's liability in case of loss to its pro rata share of the total loss with other companies issuing; and afterwards on the 29th day of October, 1886, the amount of concurrent insuran ce permitted vas increased to $6,000. The policy contained the usual provision requiring notice and preliminary proofs in case of loss, and the submission by the insured of their books, papers, vouchers, etc., to the inspection of the underwriters, and the submission of themselves to examination, under oath, if required by the latter. It also contained a clause in the following words: "All fraud or attempt at fraud, by false swearing or otherwise, shall forfeit all claim on this Company, and shall be a complete bar to any recovery for loss under this policy." Concurrent insurance amounting in the aggregate, together with the policy in suit, to $7,000, was procured, and was in force when, on the 21st day of December, 1886, a fire occurred, entirely destroying the property insured. One S. F. Holmes was the local agent of the Companies, and knew of the fire at the time of its occurrence, and no formal notice seems to have been given to or required by the insurers; but Winn, who was apparently the sole owner of the property insured, and of the business connected therewith,-Nail, who represented the "Co.," being a nominal partner only,-testified that at the suggestion of one Dale, who was an adjuster of one of the Companies interested, he came to Lincoln two or three weeks after the fire, and submitted his books, or a part of them, to Dale and to William Fulton, the adjuster of the plaintiff in error. Upon inspection of the books discrepan cies were found therein which, it is claimed, aroused the suspicion of both Dale and Fulton, who represented all the interested Companies directly and indirectly, to such a degree that they expressly declined to pay the loss or recognize any liability under the policies until their suspicions should be removed by subsequent investigation. The parties separated with an understanding that there was to be a future meeting at Atchison, Kan., at which Winn was requested to furnish copies of papers, vouchers, invoices, etc., and make a fuller and more satisfactory proof of the amount and value of the property burned. Fulton attended at the time and place appointed for this meetting, but Winn then professed to be unprepared to comply with what had been required of him, and the matter was again postponed, to be taken up again at some future time at Plattsburg, Mo. policies is as follows: The defendant in error, in making out his first proof of loss, increased the amount of a number of the bills of goods purchased by him, for some months before the fire, in the aggregate about $1,700. This proof was duly sworn to, and cannot be justified, and probably would subject the affiant to a prosecution for perjury; but does it forfeit the insurance? If so, why? So far as the testimony shows, the design was not to defraud the Companies, but to exaggerate the loss, and thereby secure, if possible, prompt payment. This is reprehensible, but, if no one is defrauded thereby, it is difficult to perceive any just ground upon which to base a forfeiture. Such exaggeration may furnish a just cause for suspicion that the property burned was not of the value claimed for it; but that question is one of fact, to be submitted to a jury, who are the judges of the credibility of the witnesses. This is a new question in this State, and we desire to establish a rule which, while it will protect insurance companies in their just rights, will also shield the insured from the confiscation of their property upon fanciful or insufficient grounds. In Marion v. Great Rep. Ins. Co. 35 Mo. 148, a case in many respects resembling this, the policy provided that" if there appear any fraud or false swearing the insured shall forfeit all claim under this policy." At the trial, evidence was given tending to prove that the statement of loss made to the defendant by the plaintiff was false in regard to the amount of the loss. An instruction that the company was not liable in such case was refused by the trial court, and the refusal to give the same assigned for error. The supreme court says: "The clause in the policy in respect to false swearing is to be viewed in connection with all the other parts of the policy and the general nature of the contract; and, so, viewing it it is On or about the 21st day of March, 1887, Ful-obvious that it was intended thereby to require ton met Winn at Plattsburg, at which time and place the latter made a statement under oath, showing that according to an inventory made February 1, 1886, witness then had on hand, of the stock insured, $8,245.35, and that he had af terwards purchased goods to the amount in value of $8,028.43. From the aggregate of these two sums the amount of sales was given, to be deducted so as to show the value of the goods burned. The items of the several purchases, purporting to give dates, amounts and names of persons and firms from whom purchased, were included in this sworn statement. There was a verdict and judgment for the plaintiff below, from which the cause is brought into this court by petition in error. The proof clearly shows that at the time of the fire the defendant in error bad in his store at Elk Creek property covered by the policies in this case of greater value than $7,000, and that a notice of the loss was given to a local agent of the Insurance Company immediately after the fire, and that the adjusters of the Insurance Companies appeared to endeavor to adjust the loss. Up to this point no fraud is claimed; and, had the proof of loss conformed to the facts, no objection would be made by the Insurance Companies, so far as we can see, to the payment of the loss. The fraud which is claimed to vitiate the the insured to give the insurer real and reliable information as to the amount of the loss, and that a mistake, or unintentional error, or misstatement of an immaterial matter in the sworn statement, would not avoid the policy; but the false statement must be willfully made in respect to a material matter, and with the purpose to deceive the insurer. Now, this instruction requires that the false statement (that is, the statement made in ignorance of its truth) shall have been knowingly made, but does not require that the jury shall find that it was in respect to a material matter, or made with an intention to deceive the defendant. It might probably be inferred that the matter was material; but under that instruction, if given, the jury would have been required to find for the defendant, notwithstanding that the false statement was not intended to deceive the defendant, and did not deceive it, and that the plaintiff derived and could derive no advantage from it, and the defendant received and could receive no detriment from it. Hoffman v. Western M. & F. Ins. Co. 1 La. Ann. 216. No doubt an indictment for perjury might be supported by proof of a swearing to the truth of matters of which the accused was ignorant (and which might in fact be true), but the prosecution for perjury is distinctly for the offense of false swearing, irrespective of the effect of the falsehood; while here the clause as to false swearing is a part of a contract between two persons, and is important only in its effect, actual, presumed or intended. It is no part of the intention of the parties to punish one of them for an immoral or illegal act, but the provisions of the contract have reference only to their interests in respect to the subject matter of the contract." In Marchesseau v. Merchants Ins. Co. 1 Rob. (La.) 438, the person insured swore that the property was worth $15,549, and the jury found it to be worth $8,000; and in Gerhauser v. North British & M. Ins. Co. 7 Nev. 174, he swore that the value of the property destroyed was $6,000, but the jury found it to be but $3,000; yet in both of those cases verdicts in favor of the insured were sustained. To the same effect are Wolf v. Goodhue F. Ins. Co. 43 Barb. 400; Williams v. Phoenix F. Ins. Co. 61 Me. 67; Unger v. People's F. Ins. Co. 4 Daly, 96; Wood, Ins. 1007, 1008. In all these cases the court held that the disparity between the value, as sworn to by the insured and as found by the jury, did not furnish evidence of fraud, within the conditions of the policies, although it is evident in some of them that the insured must knowingly have overstated the value of the property destroyed. In Wolf v. Goodhue F. Ins. Co. supra, the defenses were that the insured set fire to the property himself, and that he was guilty of fraud and perjury in preparing the preliminary proofs. It was held that the fact that the jury found a sum much less than the amount claimed was no evidence that the jury found the issue of fraud against the plaintiff. In the case cited, the proof of loss stated the value to be $3,041.36, while the jury found the value to be $675.06. In Unger v. People's F. Ins. Co. supra, the insured swore in the preliminary proof of loss that the cash value of the goods insured was $16,336.23, and that his loss of goods totally destroyed was $9,989.03, and $6,347.20 on property damaged. The referee found the value of the goods totally destroyed to be $6,500, and the damage to other goods to be $2,600.15. Daly, J., in delivering the opinion of the court, says: "The fact that the plaintiffs in their preliminary proofs and in their testimony on the trial swore that their loss was about $3,489.03 more than the referees found it to be is not even presumptive evidence of false swearing or of fraud.' Fraud is a question for the jury to determine from the evidence. To constitute fraud, as against the Insurance Companies, there must have been misrepresentations, before the fire, in regard to a material fact or material facts by reason of which the policies were fraudulently procured, or other matter of a fraudulent nat ure which would compel the companies, in case of loss, to pay for property which was not destroyed or not in existence. But if there is no fraud up to the time of the loss, and the rights of the parties were thereby fixed, it is the duty of the insurer, upon due notice and proof thereof, unless these are waived, to perform its contract by paying the insured what is justly due; and a willful misrepresentation by the insured, as to the amount of his loss, provided the actual amount of the same is in excess of the policy, will not cause a forfeiture thereof. A contract of insurance, like any other, is made to be performed. A loss is liable to occur when least expected. The insurer has received and retained the consideration for the contract, and, unless there are good and sufficient reasons for exemption, should perform the same, and any matter which did not affect the risk should not be permitted to work a forfeiture. There is some objection to the final proof of loss,-that it was not served in time, and it is claimed that an instruction on that point is erroneous, as not based on the evidence. There is sufficient in the evidence from which the jury were justified in finding such a waiver, and the jury were properly instructed. It is apparent that justice has been done, and there is no error in the record. The judgment is therefore affirmed. The other Judges concur. Petition for rehearing denied. MASSACHUSETTS SUPREME JUDICIAL COURT. Quincy A. SEWARD, Piff., v. Charles L. HAYDEN. (....Mass.....) The day of the date is to be excluded in reckoning the six years named in the Statute of The decision of Mr. Justice Jackson in Pres Limitations for bringing an action upon a prom-brey v. Williams, 15 Mass. 193 (1818), and the issory note payable on demand. (November 26, 1889.) NOTE.-Computation of time. See Bemis v. Leonard, 118, Mass. 508; Paul v. Stone, 112 Mass. 27; Warren v. Slade, 23 Mich. 1; Ex parte Dean, 2 Cow. 605; Commercial Bank v. Ives, 2 Hill, 355; Cornell v. Moulton, 3 Denio, 12; Owen v. Slatter, 26 Ala. 547; Sims v. Hampton, 1 Serg. & R. dictum of Mr. Justice Wilde in Little v. Blunt. 9 Pick. 488, 491 (1830), have been greatly 411; Weeks v. Hull, 19 Conn. 376; Vandenburgh v. Van Rensselaer, 6 Paige, 147. It is considered as well settled that when an act is to be done within a given number of days from the date, or day of the date or act done, the day of the date is excluded. Seekonk v. Rehoboth, Cush. 371. shaken as authorities by the opinion of Chief | Justice Gray in Bemis v. Leonard, 118 Mass. 502 (1875). As pointed out by Chief Justice Gray, Presbrey v. Williams, supra, was rested on the authority of Norris v. Gautry, Hob. 139. But Norris v. Gantry was not directly in poiut, and, further, it has been overruled by the later English decisions: In construing the words of a statute, if the intention of the Legislature is in doubt, such a construction is to be adopted as will save the plaintiff his remedy rather than take it away. Bigelow v. Willson and Weeks v. Hull, supra. In one case the plaintiff may have a fraction of a day more than the statute time; on the other hand, he will be deprived of the benefit of the full six years. All it is possible for the court to do therefore in this dilemma is to "work out a rough equality and substantial justice" by giving him the benefit of the day the cause of action accrues. Holmes, J., in Stewart v. Griswold, 134 Mass. 391; Cooley, J., in Warren v. Slade, 23 Mich. Mr. Franklin G. Fessenden, for defendant: Lester v. Garland, 15 Ves. 248; Peller v. Wonford, 9 Barn. & C. 134, 4 Man. & Ry. 130; Hardy v. Ryle, 9 Barn. & C. 603, 4 Man. & Ry. 295; Williams v. Burgess, 12 Ad. & El. 635; Webb v. Fairmaner, 3 Mees. & W. 473; Young v. Higgon, 6 Mees. & W. 49; Gorst v. Lowndes, 11 Sim. 434; Robinson v. Waddington, 13 Q.1, 5. B.753; Isaacs v. Royal Ins. Co.L. R. 5 Exch. 296. Other statutes of this Commonwealth, raising analogous questions to the one at bar, as to the computation of time, have been decided in accordance with our claim in this case. Paul v. Stone, 112 Mass. 27; Bigelow v. Willson, 1 Pick. 485; Seekonk v. Rehoboth, 8 Cush. 371; Bemis v. Leonard, 118 Mass. 502. See also, for analogous decisions, Wiggin v. Peters, 1 Met. 127; Bull v. Carke, 2 Met. 588; Farwell v. Rogers, 4 Cush. 460, 466; Buttrick v. Holden, 8 Cush. 233, 236; Fuller v. Russell, 6 Gray, 128; Plummer v. Odiorne, 8 Gray, 246; Johnson v. Stewart, 11 Gray, 181, 183; Atkins v. Sleeper, 7 Allen, 487; Millett v. Lemon, 113 Mass. 355, 361. The general rule as applied in a variety of circumstances, and now well established, is that, in computing the time from the date, or from a certain act or event, the day of the date is to be excluded, unless a different intention is manifested by the instrument or statute under which the question arises. Gray, ch. J., in Bemis v. Leonard, 118 Mass. 502, 506. The general current of the modern authorities on the interpretation of contracts, and also of statutes, where time is to be computed from a particular day or a particular event, as when an act is to be performed within a specified period from or after a day named, is to exclude the day thus designated, and to include the last day of the specified period. The cause of action against the defendant accrued September 7, 1881, and the action might have been brought on that day. If brought September 8, 1881, one day's interest would have been recoverable. Littie v. Blunt, 9 Pick. 488; Hitchings v. Edmands, 132 Mass. 338; Fenno v. Gay, 146 Mass. 118. The action was brought September 7, 1887. There were therefore seven seventh days of September on which the action could be brought, if it can be maintained. It seems hardly necessary to say that there cannot be seven seventh days of September in six years. It has been held that the action cannot be maintained. Little v. Blunt, supra; Presbrey v. Williams, 15 Mass. 193. The authority of these cases has never been questioned in this Commonwealth except by Gray, Ch. J., in Bemis v. Leonard, 118 Mass. 502. The rule laid down in them has repeatedly been approved. Butler v. Fessenden, 12 Cush. 78, per Shaw, Ch. J.; Atkins v. Sleeper, 7 Allen, 487; Perry v. Provident L. Ins. Co. 99 Mass. 162. The adjudications claimed to be adverse to this defendant have proceeded on the ground of giving effect to the true meaning of parties to a contract (see Kendall v. Kingsley, 120 Mass. 294, per Gray, Ch. J., where "until" is held to mean "including"), or to present a loss or forfeiture of a right or property in case of a statute. Field, J., in Sheets v. Selden, 69 U. S. Wall. 177, 190 (17 L. ed. 822). See English cases cited supra; also Cornell v. Moulton, 3 Den. 12; Warren v. Slade, 23 Mich. 1; Blackman v. Nearing, 43 Conn. 56; Weeks v. Hull, 19 Conn. 376, 381; Homes v. Smith, 16 Me. 181; Menges v. Frick, 73 Pa. 137; Ang. Lim. 4th. ed. §§ 43-50; Wood, Lim. Act. § 54, and cases cited. Some of the reasons for the foregoing decisions are as follows: No moment of time can be said to be after a given day until that day has expired. Bigelow v. Willson, I Pick. 485, 494. This appears clearly in the case of a contract; if the time to be computed is one day, to include the day would require an act, which, by the contract, was to be done in one day from date, to be done on the day of the date. Field, J., in Hitchings v. Edmands, 132 Mass. 339. The same reasoning should be applied to a statute as to a contract. Weeks v. Hull, supra. The decisions in other jurisdictions are at variance, the courts in some States following Presbrey v. Williams, 15 Mass. 193, and in other States holding the other way. They cannot be reconciled. No new reasoning is contained in them. See Wood, Lim. chap. 5; Ang. Lim, chap. 6. Many of the cases, however, state that the rule contended for by this defendant is the law of this Commonwealth. See Cornell v. Moulton, 3 Denio, 12; Warren v. Slade, 23 Mich. 1. This court will not change an established rule simply because in other States the law is different. Com. v. Brayman, 136 Mass. 438. The earlier English cases are in accord with the decision of Presbrey v. Williams, supra. The later English cases have qualified the earlier rule somewhat and approve the reason ing of Sir William Grant in Lester v. Garland, | requires actions to be commenced "within six 15 Ves. 248. years next after the cause of action accrues. Moreover, it is said in the opinion in that case that the decision in Presbrey v. Williams “can hardly stand with the later adjudications." Where the act done from which the computation is made is one to which the party against whom the time runs is privy, the day of the act may reasonably be included; but when it is one to which he is a stranger, it ought to be excluded. Hardy v. Ryle, 9 Barn. & C. 603, 4 Man. & Ry. 295. Knowlton, J., delivered the opinion of the court: This case presents for consideration the single question whether, in action upon a promissory note payable on demand, the day of the date is to be excluded or included in reckoning the six years named in the Statute of Limitations. By the first of these modes of reckoning a payee would ordinarily have a few hours more, and by the second a few hours less, than six years, within which to bring his suit. But in computing time under statutes and contracts, the law disregards fractions of a day, unless, on account of the subject matter or for other important reasons, justice requires that they should be regarded. This rule is universally held applicable to computations under the Statute of Limitations. In reckoning from a day or a date the rule generally adopted excludes the day from which the reckoning runs. Many early cases stated a distinction between computations from a day or a date and computations from an act done or from an event. But this distinction does not rest upon a sound principle, and in most jurisdictions it is no longer recognized. The tendency of recent decisions is very strongly towards the adoption of a general rule which excludes the day at the terminus a quo in such cases. But this rule is not inflexible, and in the interpretation of a statute or contract it yields to a manifest purpose or intention in conflict with it. In ordinary cases there is no reason why it should not be held applicable to the Statute of Limitations, as well as to other statutes; and in that particular there is nothing peculiar in the case at bar. Presbrey v. Williams, 15 Mass. 192, laid down the doctrine that in an action upon a promissory note payable immediately the day of the date is to be included in computing time under the Statute of Limitations, and this case has often been referred to by judges and writers of text books as stating the law of Massachusetts, and as having been followed in some other States. But the authorities on which it rested have since been overruled in England, and in this Commonwealth, under other statutes, several decisions have been made which are in conflict with it. In Bemis v. Leonard, 118 Mass. 502, the authorities in England and in Massachusetts were very elaborately reviewed, and it was decided that under Gen. Stat. chap. 123, § 57 (Pub. Stat. chap. 161, § 69), which requires the copy of the writ and of the return of the attachment of bulky personal property to be deposited in the town clerk's office "at any time within three days thereafter," the day of the attachment is to be excluded. The language of the Statute there considered was substantially the same as that which we are considering, which So, in applying the Statute of Limitations in a suit against an executor or administrator, it was held in the case of Paul v. Stone, 112 Mass. 27, that in computing the two years "from the time of his giving bond" the day upon which the bond is given is to be excluded. We think the decisions in these and in some other cases in this court are so inconsistent with that in Presbrey v. Williams as virtually to have overruled it, and it can therefore no longer be considered an authority in this Commonwealth. The language of the opinion in Fenno v. Gay, 146 Mass. 118, had no reference to the question now before the court. The question in that case was whether the note was payable immediately, or not until after a demand, and the language used was applicable to it. For authorities in harmony with our construction of this Statute, see Lester v. Garland, 15 Ves. 248; Hardy v. Ryle, 9 Barn. & C. 603, 4 Man. & Ry. 295; Williams v. Burgess, 12 Ad. & El. 635; Webb v. Fairmaner, 3 Mees. & W. 473; Young v. Higgon, 6 Mees. & W. 49; Gorst v. Lowndes, 11 Sim. 434; Robinson v. Waddington, 13 Q. B. 753; Sheets v. Selden, 69 U. S. 2 Wall. 177, 190 [17 L. ed. 822]; Cornell v. Moulton, 3 Denio, 12; Blackman v. Nearing, 43 Conn. 56; Homes v. Smith, 16 Me. 181-183; Menges v. Frick, 73 Pa. 137; Warner v. Slade, 23 Mich. 1; Kimm v. Osgood, 19 Mo. 60; Smith v. Cassity, 9 B. Mon. 192. Judgment for the plaintiff. Asahel QUIMBY, Piff., v. BOSTON & MAINE R. (....Mass.....) 1. The failure of a passenger to sign an agreement on the back of a free railroad pass, which expressly declares that it is given to him "provided he signs the agreement,” is immaterial where he accepts and uses the pass. 2. An agreement by one who accepts a railroad pass purely as a gratuity, that he will assume all risks of accident of every name and nature, is not against public policy, and will prevent a recovery by him for injuries occasioned by the negligence of the railroad company's servants. (January 1, 1890.) N report. Judgment for defendant. in the Es sex Superior Court, in which plaintiff claimed damages for personal injuries received in a railroad collision while riding on a free pass. Defendant admitted its liability except so far as the agreement on the back of the pass constituted a defense. The facts are stated in the opinion. The conductor accepted the ticket without the plaintiff's signature. This was within the |