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18 V. WINTHEOP. MASON [196
have of the considered the might portion charge already jury
care, than of his deemed the one of Mead’s rather due question
for it should have asked more instruc- incompetency, specific
tions. v. 139 Mass. 177. Wright Wright,
overruled. Exceptions 
Winthrop. Lillian M. Inhabitants of Mason vs.
14, June 18, Suffolk. 1907. January 1907. 
Knowlton, J., Morton, Braley, Sheldon, Loring, & Present: C. JJ.
Way, highway. in Defect
51, by against 18, personal injuries In an a town under R. L. for caused action c. § defendant, depression highway stepping asphalt into a in an of a of the sidewalk
therein, following alleged have the to constituted a defect the defendant asked for
depres- repair complained : of a instruction “If the defect or want of of consisted
asphalt length parallel in in with the sion the about one and one half to two feet
curbstone, right and about and a half in breadth at fourteen inches to a foot
• curbstone, greater angles depth and with the with a than two or two one not
inches, deepest point, gradually sloping to half inches or three with sides the
nearly top, sharp edges, tamped with no and in with in the and filled earth to
jury depression want must find that such did not such a defect or the constitute
conflicting, repair was as the defendant would be liable for.” The evidence of
as it was witnesses of the sidewalk and the defendant’s described the condition
Held, requested. in should have stated to be the instruction that the instruction
given. been
depression highway the a of such a character as to If a sidewalk of a of town is in
knowledge by highway, superintendent a in the of constitute defect the the
depression is a sufficient notice to streets of town of the existence of such the
by stepping into it. injured of the town to make it liable to a traveller reason
18, 51, injuries against personal caused a R. c. for an action town under L. In § presiding right by alleged highway it is for the an defect in a of the defendant
“ must judge jury notice which the defendant to instruct that The to refuse the
have, diligence have had by proper might and it care or which the exercise of
of, the exact defect repair complained must be notice of of the defect or want of
likely in merely to cause the exact defect complained and a situation of not of
liable unless it had question,” that the town is not and to instruct them instead
notice of the defect. reasonable 
the of 12, incurred on July for evening Tort personal injuries
in of into a the sidewalk Charles 1904, from depression stepping
was to be a town of which in the alleged Street Winthrop,
28, 1904. Writ dated defect in that highway. July

V. 19 MASON WINTHROP. Mass.]
Richardson, tried In Court the case before J. the was Superior
warranted the evidence are described in the The findings by
defendant, the the ,the At close of evidence opinion. among
to other asked the instruct the as follows : requests, judge jury
“6. If the defect or want of of consisted of repair complained
in about a the one and one half to two feet asphalt depression
curbstone, in with the and about fourteen inches length parallel
a foot a in to and half breadth at with the curb- right angles
stone, a with not than two or and two one half depth greater
inches or with inches, three sides to the gradually deep- sloping
est and with no and filled in with earth point, sharp edges, tamped
in to the the must find that such did top, nearly jury depression
not constitute such a defect want of or as the defendant repair
be would liable for.”
“ The notice the 10. which defendant must or have, which by
of the exercise care and it have had proper might of diligence
the defect or want of of, must be notice of repair complained the
exact defect of and not of a complained situation merely likely
to cause the exact defect in question.”
to The refused either of and, these judge give instructions,
other instructed the in among things, terms as to jury general
a the of town to exercise reasonable duty in diligence making
travel, its safe for as reasonably to the not ways town’s being
liable unless it had reasonable notice of defect, the as and to the
of the to decide on all the evidence duty jury as to the issues
involved. The returned a verdict for the jury in the plaintiff
; sum of and the defendant 1564.59 alleged exceptions.
Whalen, S. M. for the defendant.
Harlow, F. for S. the plaintiff.
J. Braley, The to the exceptions exclusion of evidence
been the waived, defendant’s having are remaining exceptions
to confined the refusal to sixth the and tenth give requests. In
the of the 51, L. discharge 1, R. duty imposed by the c. town §
to was maintain the required sidewalk where the was plaintiff
and which a of injured, the comprised in a part highway, reason-
safe condition for travel. ably public Fitz v. Boston, 4 Cush.
v. Andover, 365. Bodwell North 110 511, n. Mass. Moynihan
193 Mass. issue, v. 26. This Holyoke, where the location and
of an character defect are in alleged is controversy, ordinarily

V. WINTHROP. 20 MASON [196
it is when there is no one of fact for the and dispute jury, only
therefrom, inferences to be drawn as the of the facts, to proper
Lowell, for of law the court. that it becomes matter Hall v. á
Provincetown, 313, v. 105 Mass. 316. 10 Cush. 260. Ghenn
116 Mass. 93. Marvin v. New 158 Bedford, Dowd v. Chicopee,
271, 464, 466. Harris v. Great 169 Mass. Mass. Barrington,
Tisdale v. 167 Mass. 248. Lamb v. 275. Bridgewater, Worces-
ter, Mass. 82. 177
was that the sidewalk was constructed of as- It undisputed
curbstone, near had the which become depressed although phalt,
extent and as to the condition of the the evidence depression
of if believed, The the testimony was plaintiff, contradictory.
broken, surface had become hol- that the a showed forming
in was in about six inches which low depth, irregular shape,
defendant, for the But the evidence while with sharp edges.
unbroken area of much less also a larger describing depth,
hollow had been filled and entire that the the showed solidly,
even with had been made the street level. surface very nearly
instruction, for asked an that if the The sixth request jury
was believed the defendant’s there no of evidence description,
it held defect for which could be con- responsible. Upon any
was for evidence, it them to the flicting properly open accept
the defendant’s witnesses as of describing testimony correctly
at time of of the street the the accident. If the condition they
the case would then fall this conclusion within present reached
Worcester, 188, in Newton v. Mass. 181, made 174 the decision
to as failed establish matter of law that and, the having plaintiff
use of safe for the travellers, the not street was reasonably the
verdict. In the entitled to a instructions be would defendant
overlooked, and the failure was to distinction the give this given
error. form or was in substance either request
in to that the also was exercise prove required The plaintiff
town should have ascertained the and reasonable diligence of
The defective condition was the hole defect. in the remedied
described, bounded or it be and however the sidewalk, might the
of whom it streets was dis- of the by superintendent knowledge
51, L. notice to the defendant. R. c. sufficient 18. was covered §
7, Boston, Mass. 11. If thereafter he 189 made v. Campbell
occasions, neither would be his acts conclusive two on repairs

21 MORTON’S CASE. Mass.]
the that street was nor the safe relieve defendant reasonably
from of its the would be as performance statutory duty, jury
in warranted the that the surface finding upon plaintiff’s theory
of the sidewalk not was broken but sunk. The tenth had only
under these circumstances the as immaterial, request ignored
444, 442, decisions in Monies 121 Mass. Hutchins and Lynn, v.
Littleton, 124 Mass. 289. But cases v. those were decided under
22, and, 44, c. was in Gen. Sts. as out Post v. pointed Boston, §
189, 141 Mass. are the of 192, since St. 1877, they inapplicable
18, in 234, 52, 51, 18, c. re-enacted Pub. Sts. c. now R. c. L. § §
cities and towns are now to use whereby reasonable required
to defects caused a failure to make diligence remedy by proper
in boundaries, within their instead of repairs public ways being
relieved from such where the defect itself is not liability shown
to existed for have hours to the twenty-four accident. previous
was refused This and the instructions cor- rightly, request given
stated the law. Post Boston v. and rectly Boston, v. Campbell
ubi supra. sustained. Exceptions 
George N. Morton’s Case.
21, 18, Suffolk. 1907. June January 1907. 
Knowlton, J., Morton, Hammond, Present: C. Loring, Braley,
Sheldon, Rugg, & JJ.
Arrest, Corpus. process, Habeas On mesne On execution. Jurisdiction. Poor
Debtor.
action,on judgment brought judgment A creditor an procured bis and the arrest
process upon of the debtor on mesne a writ and proper affidavit in form.
petitioned procured debtor for and corpus, The a seeking writ of habeas his
arrest, contending discharge from that the court in judgment which the sued
Held, jurisdiction. had on was ordered no that petitioner the fact that the
good had a judgment defence to the action on ground the was not a for his
discharge corpus proceedings. in habeas
seems, judgment execution, It that if a debtor procure is arrested on he can his
discharge corpus proceedings by showing in habeas that the court from which
jurisdiction. issued had no the execution
brings alleged and, an against one action an having Where debtor caused his
process, discharges for a arrest on mesne consideration the defendant and dis-