pipe with a public sewer, with nothing to prevent the flow of water back from the sewer. 2. A clause in the lease exempting the landlord from liability to his tenant for injury by "fire, water, or otherwise," is no defense to an action for damage to the tenant by negligently allowing water to flow into the tenant's cellar from the landlord's cellar on an adjoining lot. Fera v. Child, 115 Mass. 32, distinguished. 3. In an action by a tenant against his landlord for negligently allowing water to enter plaintiff's cellar from defendant's cellar on an adjoining lot, there was evidence that the drain pipe of defendant's cellar was so connected with a sewer that water could flow from the sewer into the cellar; that the wall between the cellars was in an improper condition; and that water passed through the wall to plaintiff's cellar. Held, that the question of negligence was for the jury; and, if defendant was negligent, the fact that an extraordinary storm contributed to plaintiff's injury did not exonerate defendant. Exceptions from superior court Suffolk County; JAMES R. DUNBAR, Judge. Action in tort by Henry C. Smith against J. Franklin Faxon. Plaintiff had judgment, and defendant brings exceptions. Exceptions overruled. On a trial it was shown that plaintiff was occupying a part of the basement of the building on Beach street, in the city of Boston, which extended from South street to Utica street; that he hired the same of Potter & Watson, and was a tenant at will; that he occupied the front half of said basement next to Beach street, running back about one half the width of the building, and that his portion was separated from the balance of the basement by a board partition, and that the said balance thereof was occupied by said Potter & Watson; that he was a dealer in bottlers' supplies, and kept his stock in suid premises in barrels and bins; that on the night of August 21, 1888, he found that the water was coming into his basement at the rear of his premises, through said board partition, through and from said Potter & Watson's basement; that then it was raining hard; that he found that a cellar on the land of the defendant, adjacent to Potter & Watson's basement, on which the defendant was then erecting a building, and which bad not then been covered by a roof, was fast filling up with water; that he saw the water bubbling up from said drain pipe in the cellar near South street; that the water came into the plaintiff's premises about 11 inches in depth, and had nearly all gone out at 8 o'clock the next morning, leaving mud and slime of a filthy character deposited upon the floor and the bins, barrels, and goods to the height that the water had risen. Among other requests which were complied with the defendant requested the court to instruct the jury: "First. That the defendant had the right to make the excavation upon his own land, testified to; that he was under no obligation to prevent surface water from accumulating therein upon his own land, and thence flowing into the cellar of the plaintiff, and, if the water complained of was surface water, the plaintiff is not entitled to recover. ""Fifth. That if the water which came into the defendant's cellar was surface water, caused by a heavy rain that flowed into the sewer constructed by the city in its street for the purpose of carrying off such surface water, and thence through a drain which the defendant had connected with said sewer from his said cellar, for the purpose of draining the same into said cellar, and from thence run into the plaintiff's premises through or under the wall, the plaintiff cannot recover. Sixth. That if the intervening wall between the plaintiff's and defendant's premises was properly constructed for the purposes for which it was intended, that is all that the defendant can be required to do, and he is not liable on account of surface water that is collected in his cellar, running or percolating through or under the same into the defendant's cellar." "Eighth. That, the plaintiff being a tenant at will of Potter & Watson, who are tenants of the defendant under a lease in writing, the plaintiff's rights are limited by the agreements and conditions in said lease, and that under the provisions and agreements in said lease the plaintiff cannot recover in this action. Ninth. That upon all the evidence in this case the plaintiff is not entitled to recover, and the verdict must be for the defendant." The court refused to rule and instruct the jury as requested in either of said requests, but ruled that the defendant had the right to make the excavation for the cellar; that he would not be liable for any injury resulting from the condition of the wall unless the same were due to his negligence, and explained what would constitute such negligence, to which instructions no exception was taken; and, further, as to the said first, fifth, and sixth requests, instructed the jury as follows: "There is another consideration which comes into this case, and that is with reference to surface water. There was considerable evidence, as yon remember, from the engineer, who is in the sewer department of the city of Boston, with regard to the construction of these sewers and their capacity, the manner in which they are emptied, and the manner in which water is prevented from coming into the sewers from the sea. His testimony tended to show that when the tide rises to a certain point, the tide gates which are at the mouths of the sewers discharging into the sea are closed by the pressure of the water; that they do not open until the pressure of the water in the sewer is greater than the pressure of the tide upon the mouth of the sewer; and that the water in the sewer, therefore, must be higher than the tide before the gates will open and let any out. And the defendant says that this was all surface water, necessarily, be cause that evidence is uncontroverted; that it could not have been sea water upon that statement of the civil engineer, and upon his further statement that if there was any sea water in there it must have come in by percolation, and would have been a matter of not sufficient consequence to consider; and that he is not liable for surface water which comes upon his land and passes upon the land of another, nor for surface water which passes directly from his land upon the land of another. And as a general statement of a general principle that is true. If you own a piece of land, Mr. Foreman, and your He next-door neighbor owns another piece of Jand, and yours is higher than his, you are not responsible, because when the rain falls upon your land, or the snow gathers upon it and melts, it discharges upon your neighbor's land. You are not responsible for that. Neither would you be responsible if you owned the lower piece and your neighbor owned the higher, and the water had been accustomed from time immemorial to flow from the surface of his land upon the surface of yours, if you built along the line upon your own land, within your own limits, a barrier which prevented it from flowing upon your land. But if you, owning the upper piece of land, construct an artificial channel, and by means of that collect the surface water upon your land and discharge it upon your neighbors' land in a different place and in greater volume than it had been accustomed theretofore to flow, then you would be liable for such an act as that, if it caused injury to your neighbor. And that is the principle, as I understand, upon which the plaintiff relies in this case. says that you should find that this was surface water; that there was nothing else in it; that it did not come in the natural and ordinary manner, but that it came in through a drain pipe, which discharged it in greater quantities than would otherwise have accumulated there, and in a different manner than it would otherwise bave accumulated, and thereby enabled the water to pass through the wall of the building in which he was and cause him injury. The principle I have already stated to you. A man is not liable for surface water which comes in in the ordinary way, whether his land be at a level surface or whether it be dug below the level surface. If the water in this case, for instance, came in from the street, poured over the embankment into this cellar, purely surface water coming in in a natural way, and not in any artificial channel, then the defendant is not responsible for the presence of that water in the cellar, but if some of it came in through a drain pipe in the manner in which the plaintiff claims it did, and came into the cellar in greater quantities than it would otherwise have come, and it caused this injury to the plaintiff because of that, if that was the proximate and efficient cause of the injury, then, although it first passed upon the defendant's land before going to the place where it injured the plaintiff, the defendant might be held liable if the other elements in the case are proven to your satisfaction by a fair preponderance of the evidence. Edgar O. Achorn, for plaintiff. Lund, Jewell & Welch, for defendant. LATHROP, J. As to the first request for rulings the jury were instructed that the defendant had the right to make the excavation upon his own land. They were further instructed that a person was not generally liable for surface water collecting on his land and flowing onto the land of another; that the defendant was not liable if the injury was caused by surface water pouring over from the street into the cellar, but that he would be liable if v.31N.E.no.8-44 the water came in through a drain pipe, which discharged it in greater quantities than would otherwise have accumulated in the cellar, and in a different manner; and that, if that was the proximate and efficient cause of the injury, then, although the water first passed upon the defendant's land before going to the place where it first injured the plaintiff, the defendant might be liable, if the other elements in the case were proven. That a private landholder has no right to collect water into a definite artificial channel, and discharge it upon his neighbor's land, is well settled. See Bates v. Westborough, 151 Mass. 174, 181, 23 N. E. Rep. 1070, and cases cited. The artificial channel in the case at bar was a drain pipe connecting with a public sewer into which surface water flowed. The right of the defendant to build the drain was not disputed, but the plaintiff's contention was that the defendant was negligent in leaving this open without any thing in it to prevent the flow of water back from the sewer. jury were fully instructed upon this point, and by their verdict they have found negligence on the part of the defendant. We are of opinion that the first instruction requested, so far as it was not given, was properly refused. The The second, third, fourth, and seventh requests for instructions were given. The fifth request is disposed of by what we have said as to the first. The sixth request was properly refused So far as it relates to surface water, we have already considered it. So far as it relates to the building of the wall, it omits the element of negligence, which we will consider later. The eighth request relates to the facts that the plaintiff was a tenant at will of Potter & Watson, who hired the building, where the plaintiff did business, of the defendant, and that the defendant's lease to Potter & Watson contained a clause exempting the defendant from liability for loss or damage by fire, "water, or otherwise. A similar clause in a lease was construed in Fera v. Child, 115 Mass. 32; and it was held that under it the lessor was not liable for damage done to the lessee's goods by the bursting of a water pipe in a part of the building not included in the lease. But in the case at bar the action is not brought against the defendant as the owner of the building, but for a tort committed by him as the owner of an adjoining lot of land; and we are of opinion that the clause in question does not apply. The ninth instruction requested was that upon all the evidence the plaintiff was not entitled to recover. We need not consider whether the plaintiff could maintain his action on the doctrine of Rylands v. Fletcher, L. R. 3 H. L. 330, aside from evidence of negligence on the part of the defendant. See Snow v. Whitehead, 27 Ch. Div. 588. The plaintiff's declaration charges negligence, and the case was tried upon this issue, and the jury were instructed that unless the plaintiff proved that the defendant was negligent the verdict must be for the defendant. To show negligence the plaintiff relied upon two facts, about which there does not seem to be any dispute. The first was that the pipe leading from the bottom of the cellar to the sewer was so constructed that there was nothing to prevent water from flowing from the sewer into the cellar. The other ground was that the defendant, in digging his cellar, took out the foundation of the Potter & Watson building, cut off the old piles three feet, rebuilt the foundation with granite laid in cement, built the new wall adjoining, filled in the walls about the piles, but did not fill in the earth about the foundations until after the flooding. There was also evidence that the walls and earth were negligently left in a dangerous and improper condition; that changes had been made in the wall of the Potter & Watson building; that that wall had been negligently left in an improper condition; and that the water had there passed through into the plaintiff's premises. We cannot say that there was no evidence for the consideration of the jury of negligence on the part of the defendant. If such negligence existed, and the jury have found by their verdict that the defendant did not use the same care in the construction and management of his cellar as is usual with men of ordinary care and prudence under similar circumstances, the fact that an extraordinary storm contributed to the plaintiff's injury does not exonerate the defendant. Salisbury v. Herchenroder, 106 Mass. 458, and cases cited. Exceptions overruled. DEVENEY v. BAXTER. (Supreme Judicial Court of Massachusetts. Norfolk. June 23, 1892.) EVIDENCE-DECLARATIONS-RES GESTE. Where the question at issue is whether the plaintiff had money ready at a certain bank to pay for land at the time agreed on for the delivery of the deed, and the plaintiff has introduced evidence tending to prove that the money was to be furnished for him by one R., the testimony of R., to the effect that he had money deposited in the bank for that purpose, and he "took it up and told [the officer of the bank] the money was ready any time when the deed was," is admissible, the declaration constituting part of the res gestæ. Exceptions from superior court, Norfolk county; E. B. MAYNARD, Judge. Action by Michael G. Deveney against Daniel A. Baxter for money had and received. Plaintiff obtained a verdict. Defendant excepts. Exceptions overruled. Geo. R. Swasey, for plaintiff. J. E. & F. A. Tirrell, for defendant. BARKER, J. The action was to recover money which the defendant had a right to retain, unless he had failed to perform his part of an oral agreement, some of the terms of which were in dispute. It appeared that, in consideration of a sum to be paid by the plaintiff to the defendant, three previously existing contracts between them were to be annulled, and that the defendant was to convey to the plaintiff certain land by a deed which the defendant was to leave at the Quincy Savings Bank with Gill, its treasurer. The time when the money was to be paid was in dispute, the defendant contending that it was to be left at the bank on a certain day, on which day he was to leave his deed there, and to receive the money; and he had so testified, and also that he took the deed there on the day and demanded the money, and that none had been left there for him. If the jury should find the agreement to have been as the defendant contended, his defense would be established. But, in rebuttal, the plaintiff contended, and introduced evidence tending to prove, that it was a part of the agreement that one Ramsdell was to furnish him with a portion of the money, for which Ramsdell was to receive from him a mortgage on the land, and that the defendant was first to leave the deed at the bank with Gill, who thereupon was to notify all parties, and that then all were to meet Gill at the bank, and to close the transaction; and also that the money was at the bank ready for the defendant. In support of this contention the plaintiff called Ramsdell as a witness, and was allowed, against the defendant's exception, to introduce his testimony, which is thus stated in the bill of exceptions: "Before the time defendant delivered his deed to said Gill I had money deposited in the said savings bank for that purpose. I took it up, and went and told Mr. Gill the money was ready any time when the deed was. The admissibility of this testimony is the only question for decision. So far as the declaration of Ramsdell to Gill is concerned, it was in the nature either of a notice to Gill, or of a statement accompanying and giving character to an act of which it was part; and so if the notice was relevant to the contract, as claimed by the plaintiff, or if the procurement of the money by Ramsdell and his having it ready to be advanced to the plaintiff, so that the latter might be prepared to make his payment to the defendant, was a part of the transaction to be accomplished by the agreement, as the plaintiff claimed it to be, both Ramsdell's statement to Gill and the other acts of Ramsdell with reference to the money were admissible. The bill of exceptions is far from clear, and the pleadings do not help us to see the bearing of the testimony to which the objection was made. The testimony itself is some. what ambiguous, but we understand it to mean that Ramsdell, having agreed with the plaintiff and the defendant that he would advance to the former on a mortgage of the land money with which to make the promised payment, drew or "took up" from the savings bank the money which he intended to use, and notified Gill that the money was ready at any time when the deed was. This would seem to have been a contemplated step in the performance of the agreement as the plaintiff contended the agreement to have been, and therefore admissible in order to show that the nonperformance of that agreement was upon the part of the defendant. We cannot say from the bill of exceptions that performance of the agreement on the part of the plaintiff did not require that the money should be procured, and notice of that fact given to Gill, to enable him to call the final meeting of al parties. The oral statement falls within the rule that declarations made at the time of the doing of an act, and characterizing it, and showing the intention and purpose of the actor, are a part of the res gestæ, and so admissible in evidence, like other material facts. Lund v. Tyngsboro, 9 Cush. 36; Elmer v. Fessenden, 15] Mass. 359, 361, 24 N. E. Rep. 208; Baring v. Calais, 11 Me. 463; Gorham v. Canton, 5 Greenl. 266; Corinth v. Lincoln, 34 Me. 310, 312. Exceptions overruled. BROWN V. COTTON & WOOLEN MANUF'RS' FIRE INSURANCE-CONDITIONS OF POLICY-ALIEN ATION. 1. Where the title to property insured by a married woman is held by her as security for a debt due from her husband, a conveyance of the property by her to her husband's assignee in insolvency is a breach of a condition in the policy against alienation, even though the wife, as creditor of her husband, has an interest in the property while held by the assignee. 2. A voluntary conveyance of insured property is as much a breach of a condition against alienation as a conveyance for a valuable consideration. Report from supreme judicial court, Suffolk county; JOHN LATHROP, Judge. Action by Martha Brown against the Cotton & Woolen Manufacturers' Mutual Insurance Company of New England upon a policy of fire insurance. The trial judge directed a verdict for the defendant, and reports the case. Judgment on the verdict. L. S. Dabney and E. M. Parker, for plaintiff. J. N. Marshall and Geo. J. Burns, for defendant. HOLMES, J. This is an action on a policy of insurance against fire, issued by the defendant, a Massachusetts company, in 1885, upon the plaintiff's woolen factory in Connecticut. So far as material, the policy was in the Massachusetts standard form, with a rider. Pub. St. c. 119, § 139. At the trial the judge directed a verdict for the defendant, and reported the case to this court. When the policy was issued the plaintiff had the legal title, probably as mortgagee in equity by convey ance from her husband through a third person. We assume her title to have been sufficient, without discussion. The defenses relied on are that before the fire she had broken the condition against sale, that she no longer had an insurable interest, and that she had broken the condition against the factory ceasing operation for more than 30 days. It also is set up that the plaintiff had not rendered a stateinent in writing setting forth the value of the property insured, etc., as required by the policy. The plaintiff replies to this last defense that it was waived, and we shall give it no consideration. For the purposes of our decision, we assume that, if it had stood alone, the plaintiff, at least, would have had a right to go to the jury. The sale relied on was a conveyance by the plaintiff, four days before the fire, to the trustee in insolvency of her husband's estate, by a deed which purported to bo for valuable consideration, but for which the plaintiff testified that she received nothing. The plaintiff proved against her husband's estate, and her claim was allowed, but she received nothing upon it. It is argued that her position as a creditor preserved for her an insurable interest in the factory after the transfer, and that the conveyance was not a sale. In the opinion of a majority of the court, the conveyance was a breach of condition. We are of opinion, in the first place, that it makes no difference whether the consideration of the conveyance is of substantial value, or is merely the technical consideration which is said to be imported by the execution of a deed. If the plaintiff's conveyance was in other respects a breach of the condition, the fact that she received nothing for it will not save it. Essex Sav. Bank v. Meriden Fire Ins. Co., 57 Conn. 335, 338, 17 Atl. Rep. 930, and 18 Atl. Rep. 324. But it is said that the plaintiff did not alienate her whole interest, because she retained an insurable interest after the transfer, as one of the creditors for whom her grantee held the property in trust. We will assume that it is true that a creditor has an insurable interest in the estate of his debtor when conveyed to an assignee in insolvency. Eastern Railroad Co. v. Relief Fire Ins. Co., 98 Mass. 420, 423; Rohrback v. Insurance Co., 62 N. Y. 47, 58. But we think that an interest of that kind would not be a continuation of the former interest of the plaintiff. By her conveyance the plaintiff parted with the whole legal title, and, as her grantee already owned her husband's equity, she extinguished her mortgage. In whatever words we express the fact, she put an end to her preferred right to satisfy her debt out of this land before other creditors could touch it. Her right afterwards was not created by, or reserved or excepted out of, her conveyance. It arose from the independent circumstance that her grantee was an assignee in insolvency, and that the land became part of the fund held by him as such. It was a right in com. mon with other creditors to share in the fund, and in the land only in so far as it was part of the fund. We are of opinion that the condition against sale was broken. Dadmun Manuf'g Co. v. Worcester Mut. Fire Ins. Co., 11 Metc. (Mass.) 429, 435; Oakes v. Insurance Co., 131 Mass. 164, 165; Dailey v. Insurance Co., 131 Mass. 173; Grevemeyer v. Insurance Co., 62 Pa. St. 340, 342; Adams v. Insurance Co., 29 Me. 292, 296, 297; Hazard v. Insurance Co., 7 R. I. 429. See, further, Young v. Insurance Co., 14 Gray, 150, 152, 153. We express no opinion whether there was a breach of the condition against the factory ceasing operation. Judgment on the verdict. JACKSON et al. v. STEVENSON. (Supreme Judicial Court of Massachusetts. Suffolk. June 23, 1892.) INJUNCTION-DEED UPON CONDITION-DAMAGES. 1. Lots in a subdivision in the residence part of a city were sold subject to certain restrictions as to building, which restrictions were designed to preserve the character of the land as residence land. After the lapse of 38 years, the locality having become a business neighborhood, the owner of one of said lots put up a building contrary to the restrictions in his deed. Held, that the erection of such building would not be enjoined at the suit of the owner of another lot, since the reason of the restriction had ceased. 2. In such case, however, the owner of such other lot is entitled to recover for the damage done to his property by the erection of such building. Report from supreme judicial court, Suffolk county; MARCUS P. KNOWLTON, Judge. Bill by Edward Jackson, Samuel Cabot, Arthur T. Cabot, and Godfrey L. Cabot against James Stevenson, to enjoin the erection of certain buildings. The case was heard on the bill, answer, master's report, and plaintiffs' exception thereto, and, at plaintiffs' request, was reserved for the consideration of the full court. Bill retained for the purpose of assessing damages, but injunction denied. Chas. Almy, for complainants. Hayes & Williams, for defendant. BARKER, J. In the year 1853 the city of Boston owned a parcel of land known as the "Arsenal Estate, "in the vicinity of the southerly end of the common. The lot was triangular, but truncated at the northerly end towards the common, and contained an area of about 14,000 square feet, bounded on the west by Pleasant street, now known as "Park Square," and on the other side by lands of private owners. The westerly line was about 232 feet in length, and the greatest depth, perpendicular to this line, was about 100 feet, while at the northerly end the depth was about 24 feet. At this time the estates surrounding the common were chiefly used for the more expensive residences. The city caused the land to be divided into eight lots, and sold. The most northerly and southerly lots, numbered, respective17, 1 and 8, were each about 44 feet wide, and each of the other lots 24 feet. The plaintiffs are the owners of lot No. 8, while the defendant owns the lots numbered 4 and 5. The other lots are owned by different persons, all deriving title through separate deeds from the city. In order to provide a general building scheme, and to effect a uniform plan, certain restrictive clauses were inserted by the city in its deeds, intended for the benefit of the lots and of the neighborhood. The first of these clauses related to partition walls, the second to the front lines of the buildings, and the third required the buildings to be of a width equal to the width of the front of the lot. Each lot was divided, by lines parallel with Pleasant street, into front and rear portions. The front portion of lot No. 1 was 18 feet deep, of lot No. 2, 32 feet, and of the other lots 40 feet. The fourth restrictive clause provided that "no dwelling house or other building, except the necessary outbuildings, shall be erected or placed on the rear of the said lot." The fifth clause was as fol lows: "No building which may be erected on the said lot shall be less than three stories high, exclusive of the basement and attic, nor have exterior walls of any other material than brick, stone, or iron, nor be nsed or occupied for any other purpose or in any other way than as a dwelling house, apothecary's shop, dry goods store, or grocery store, during the term of twenty years from August 25, 1853." The city conveyed the lots No. 4 and 5 in 1856, and the plaintiffs' lot No. 8 in 1858. All the lots were conveyed by the city before the year 1864, and dwelling houses of substantially uniform design were built which now remain upon lots Nos. 3, 4, 5, 6, 7, and 8. The main part of each house is 40 feet deep, four stories high, exclusive of basement and attic, and covers the width of its lot, extending back to the line separating the front and rear portions. On the northerly side of the rear of lot No. 7 is a two-story ell, about 11 feet wide and 15 feet deep, and between 17 and 18 feet in height, the lower story of brick, and the upper of metal, with flat roof. In the rear of this ell, and covering the whole width of the lot, is also a building 7 feet high, of brick, connecting with a store-house on Carver street, which is the next street easterly. The rear building last mentioned was erected in 1886. The upper story of the ell was added in 1878, and the original ell existed before 1877. Since 1886 the structures on the rear of lot No. 7 have been used in a wholesale and retail apothecary business carried on in the buildings on this lot, and in connecting buildings ou Carver street. On the northerly side of lot No. 6 is an ell or extension 32 feet high, 13 feet wide, and 14% feet deep, with a nearly flat roof, used as part of the main building. This extension has been in its preseut shape since 1878, and for some years before that date it was one story lower. On the rear of lot No. 3 is a brick ell 9% feet wide, and 39 feet high, extending to the end of the lot. This ell has existed for many years, and has always been used as part of the main building. Upon the northerly side of the rear of each of the defendant's lots have existed for many years structures about 11 feet wide, extending from the main buildings to the easterly side of the lots, with roofs sloping to the south, the north walls being about 10 feet high. These extensions have been used for kitchens, laundries, and water-closets. On the top of the north wall of the ell, on lot No. 5, there has been for many years a trellis of upright posts. and cross bars, partly covered with live grapevine. No objection had been made by the owners of the plaintiffs' estate to any structure erected on any of the lots until this case arose, in 1891. The master finds that since August 25, 1873, there has been a considerable change in the character of the neighborhood, the houses being no longer used as dwellings exclusively, but devoted to a considerable extent to business purposes, and that the neighborhood is now, to all intents and purposes, a business or mercantile one. The defendant, owning property on Carver street abutting on the rear of lot No. 4, and intending to erect a market on Carver street proposed to build, over the entire rear portion of lot No. 4, a brick structure with a flat roof and raised skylight, for use as |