Volume 171 — Massachusetts Reports

<p>Contract, for breach of an agreement to extinguish the plaintiffs’ debts and to relieve their goods from attachment, and tort for the conversion of certain articles belonging to the plaintiffs’ stock in trade. Writ dated June 19,1894.</p> <p>The declaration annexed to the defendant’s bill of exceptions was substituted for the original declaration, and alleged that prior to November, 1892, the plaintiffs, Solomon Banewur and Aaron Waterman, were copartners in the clothing business, having a stock in trade of the value of $4,000; that they were then indebted to the amount of about $2,200, and that they were unable to meet said obligations; that on or about November 17, 1892, one of said creditors caused an attachment of the plaintiffs’ goods and fixtures to be made; that the plaintiffs, being unable to procure funds necessary to settle with their creditors, for the purpose of dissolving said attachment and paying all their creditors “ entered into a certain agreement with the defendant, ■whereby the defendant agreed with the plaintiffs that, if the •plaintiffs would convey to him, the defendant, all their right, title, and interest in and to said stock of goods and fixtures, he, the defendant, would thereupon immediately raise a sum of money, not exceeding eight hundred dollars ($800), to pay the said attaching creditor and discharge said attachment, and would thereafter assume to pay and would pay immediately as soon.as might be to the remaining creditors the respective debts of the plaintiffs to each of said creditors, and after deducting the sum of two hundred dollars ($200) for his own services and disbursements, that he, the defendant, would then pay to the plaintiffs in equal parts, share and share alike, the balance of the proceeds of said goods; that the plaintiffs thereupon did convey unto the "defendant all their right, title, and interest in and to said stock of goods and fixtures, which stock of goods and fixtures he had received; but the defendant has utterly failed to keep his part of said agreement, to wit, in that he, the defendant, has failed to pay any of the- creditors of the plaintiffs, and has failed to account to or pay over to the plaintiffs any sum or sums of money due to them.”</p> <p>This declaration was subsequently amended by the addition of a second and third count. The second count was as follows :</p> <p>“ Prior to the 17th day of November, 1892, the plaintiffs had been copartners carrying on the business of clothing and dry goods dealers under the firm name of the Columbia ¿Supply Company at Canton, Massachusetts. On said 17th day of November their stock of goods and fixtures were attached upon a writ against them in favor of Charles Green and Company, who were creditors of the plaintiffs to the amount of about six hundred dollars ($600), on which writ a deputy sheriff took and held all of said plaintiffs’ goods and fixtures. The plaintiffs were without ready funds to liquidate the claim upon which said attachment was made, and were unable to meet other obligations which had matured and were maturing. Thereupon, by advice of the defendant, the plaintiffs procured from all their creditors an oral agreement to accept 33J per centunj of their respective claims against the plaintiffs in full settlement and discharge thereof; that the sum of money required to effect said settlement with creditors was about eight hundred dollars ($800) ; in order to raise said $800 immediately for the purpose of settlement with creditors the plaintiffs entered into a certain agreement with the defendant whereby the defendant agreed with the plaintiffs that he would advance to them, the plaintiffs, or on their account, the sum of $800 for the purpose of settlement with all the creditors, thereby securing the dissolution of the attachment already on said goods, and the full and complete discharge of the plaintiffs from their said debts; that the defendant should then receive said goods discharged from attachment as aforesaid, and hold the same in pledge to secure the repayment to him by the plaintiffs of said sum of $800, and an additional sum of $200, and that he, the defendant, would not proceed to sell the same without the consent of the plaintiffs, and would give the plaintiffs reasonable opportunity to redeem the same; that after payment to him' by the plaintiffs of said $1,000 he would return to the plaintiffs said goods and fixtures; the plaintiffs agreed .that the defendant should advance, the sums aforesaid for the purposes aforesaid, and that the defendant thereafter should hold said goods in pledge as security for the repayment to him of said aggregate sum of $1,000 ; but the defendant has utterly failed to keep his part of said agreement, to wit, he has utterly failed to advance said sum of $800 or to pay any of the creditors of the plaintiffs the stipulated dividend of 38-| per cent, or any part thereof, and has failed to release said attachment of Green and Company by the payment of the percentage of the debt as agreed, and has failed to keep in his possession or to turn over to the plaintiffs said stock of goods and fixtures, or any part thereof; but has converted the same to his own use. Whereby the plaintiffs have been greatly damaged to the extent of the value of their said goods and fixtures, and have otherwise been greatly damaged.”</p> <p>The third count was for the conversion of the plaintiffs’ stock in 'trade. Answer, a general denial.</p> <p>The case was referred to an auditor, who found that on November 4, 1892, the plaintiffs made a mortgage of all their goods and chattels to one Woronoff for $2,000, without consideration, for the purpose of deterring their creditors from attaching them; that on November 17, 1892, their goods were attached; that thereafter the defendant agreed to pay to the plaintiffs’ creditors, and the creditors agreed to accept, the sum of 33-1- cents on a dollar on their debts, in satisfaction of their respective claims; that the defendant further agreed with the plaintiffs to hold their goods as security for the money he should advance and pay to their creditors, and for the incidental expenses thereof, until he should be reimbursed by the plaintiffs, whereupon the goods should be returned to them; that, at the request of the defendant, the plaintiffs caused their mortgage to Worónoff to be assigned to the defendant; that on April 15, 1893, the defendant, not having paid or tendered to the plaintiffs’ creditors the percentage they had agreed to accept, and while the plaintiffs’ goods were under attachment, brought a writ of replevin against the attaching officer, and removed them to his store in Boston, and, although prior to the commencement of this action judgment had been rendered in favor of the defendant in the replevin suit, the defendant refused to deliver the goods to the plaintiffs or to pay to their creditors the percentage as agreed; and that the defendant owed the plaintiffs the sum of $3,117.26 and interest.</p> <p>Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiffs offered evidence tending to show that, on or about the 4th day of November, 1892, they had contracted an indebtedness amounting to about $2,400, and that among their creditors they owed the defendant for goods purchased of him; that they gave a mortgage of $2,000 upon their stock of goods, without consideration, to one Woronoff; that on November 17, 1892, their goods were attached by Charles Green .and Company, and subsequently by various other creditors, whereupon the plaintiffs obtained from the majority of such creditors an agreement to accept 33£ cents on the dollar of their respective claims ; that, a disagreement arising between the plaintiffs, the matters in controversy were referred to five friends, of whom the defendant was one, who decided in! writing that “ all the creditors should be settled, and after subtracting the amount to be paid out, the surplus should be divided into two equal parts between Banewur and Waterman. Mr. Levenson undertakes to furnish $800. The goods of Banewur and Waterman, Mr. Levenson should take. But if Banewur should want to take the aforesaid goods, he may have it by paying to Levenson 75 per cent of its value. Waterman was to take the goods by paying full value. Levenson is to get $100 for his services in settling the estate, $100 for his probable expenses. As soon as Levenson receives the goods from Banewur and Waterman he must divide it into two equal parts, and'Banewur may redeem his half and Waterman his half. Waterman is to pay full value in redeeming goods. The expenses to be paid by Banewur and Waterman equally. Levenson must get amount due him in full”; — that this.writing was assented to by the plaintiffs, and signed both by them and by the defendant, and thereupon the defendant stated orally that he would furnish the necessary $800 for settlement with the creditors; that subsequently, no settlement having been made with the creditors under the oral agreement the defendant gave to Charles Green, the first attaching creditor, his covenant to pay each of the plaintiffs’ creditors the percentage of his claim and his legal expenses, and all but three of the plaintiffs’ creditors gave their covenant to the defendant to accept such percentage in settlement of their claims; that the defendant made no. settlement with the creditors under the composition agreement, but on Feburary 20, 1893, he took from Woronoff an assignment of the plaintiffs’ mortgage.</p> <p>The defendant testified that he bought the Woronoff mortgage and took an assignment of it to himself, and that he was informed by the plaintiffs and the mortgagee that it was a good mortgage; but the plaintiffs testified that the defendant was informed that the mortgage was without consideration, was invalid, and was to be discharged. Evidence was also introduced tending to show that on February 24,1893, the plaintiffs and the defendant signed an indenture under seal of three parts, in which the plaintiffs were the party of the first part, the defendant was the party of the second part, and the creditors were the party of the third part, purporting to convey all the plaintiffs’ property to the defendant in trust to reduce it to money, pay the preferred claims, distribute the rest ratably among the creditors, and release the plaintiffs from their debts, but no creditor signed this indenture; that on April 15, 1893, the defendant replevied the plaintiffs’ goods from the attaching officer, and although in October, 1894, he was adjudged to return the goods, he refused so to do, and at the commencement of this action an action was pending against him on his replevin bond, to recover the value of the goods. Evidence was also introduced in support of the count for conversion, but the judge ruled that the plaintiffs could not recover theréon.</p> <p>At the close of the evidence the defendant reqtiested the judge to rule: 1. that upon all the evidence the plaintiffs cannot recover; 2. that the plaintiffs cannot set up or in any way avail themselves of the invalidity of the mortgage, although it might be avoided by their creditors ; 3. that, the mortgage being valid and undischarged, the plaintiffs cannot maintain an action for the conversion of the goods covered by it; 4. that the plaintiffs cannot maintain this action by reason of the alleged failure of the defendant to execute the trust by settling with their creditors, but that their remedy, if any, is in equity, to compel the execution of the trust; 5. that the plaintiffs have shown no title to the goods, and cannot maintain an action for their conversion ; 6. that if the jury find the defendant has become liable to the attaching officer by reason of the judgment against him in the action of replevin, the amount of such liability is to be allowed in reduction of damages in this action; 7. that it appearing that the trust is not settled, and that the plaintiffs’ action is not brought for the purpose of repudiating it, the action cannot be maintained; 8. that if the plaintiffs’ contention is true, that the defendant agreed to settle with their creditors, and he received the property for such purpose, then the defendant is liable to each of said creditors, and the amount for which he is so liable should be allowed in reduction of damages; 9. that if the jury find that the assignment of the plaintiffs’ property was made to the defendant for the benefit of their creditors, oral evidence is inadmissible to vary its terms, and the rights of the parties must be determined by the assignment itself.</p> <p>The judge declined to rule in terms as requested, and instructed the jury, in substance, that if, as the plaintiffs testified, when they gave a mortgage and note for $2,000 to Woronoff it was without consideration, because they owed him nothing and he paid nothing, and that it was made to prevent creditors from attaching their property, then, as matter of law, the mortgagee could not enforce the mortgage; that the plaintiffs testified that the defendant made a contract with them which is the basis of this action, by which he agreed to furnish $800 to be used in the settlement of their debts, amounting, as it is estimated, to $2,400; that it was a part of the contract that the defendant should receive $100 for his services and $100 more for his expenses, and that when he had furnished the money, settled the debts, and released the attachments, he was to hold the goods as security for his reimbursement of $1,000; that in this transaction the defendant assumed to stand in the attitude of a friend, and in this agreement or arrangement which they say they made, it is not claimed that Levenson took upon himself the responsibility of prevailing upon the creditors to settle for 381 per cent. The arrangement with him went along upon the assumption that the creditors were willing; the plaintiffs claimed that the creditors had all been seen, and had expressed their willingness, . and that most of them, if not all, had signed a paper to that effect, which has been put in evidence; and it is not claimed that Levenson undertook that the creditors should be willing to take 33J cents. ' He left that for the plaintiffs, but he undertook to pay them 33J per cent upon the assumption that they, the creditors, were and would be willing to take it And so the plaintiffs, if they have a case against Levenson, have upon them the duty of satisfying the jury that, as matter of fact, the creditors were willing.to take the 33-1 per cent, and that no obstacle, serious obstacle, existed on that score, and to the settlement being made in the manner proposed. The plaintiffs say that was the condition of things: “ We found our creditors willing to assent, we had had the advice of our friends that that was a proper settlement to make; Levenson agreed with us to furnish the money, $800, to settle with the creditors, and thereupon take our property into his hands and hold it as security for the $800 which he advanced, for the $100 which he was to receive for his compensation, and for the $100 which was reckoned as probable or as to be incurred in the way of costs.” They must satisfy the jury, by the preponderance of the evidence, that such a state of things existed. The judge then further instructed the jury, that, if the defendant’s failure or omission within a reasonable time to carry out his contract was caused by the refusal of the creditors to accept the percentage, that would constitute a defence; *that the defendant relied upon the assignment of the mortgage, and contended that the plaintiffs could not maintain the action for not returning the property because he held an assignment of their mortgage; that the plaintiffs contended that the mortgage was originally without consideration, which the defendant knew when he took it; that if the facts were as stated by the plaintiffs, the mortgage was invalid and could not be relied upon by the defendant, but if it was valid he could rely upon it as a ground for refusing to hand back the property to the plaintiffs; that the assignment for the benefit of creditors, which was intended to be a tripartite instrument, which was signed only by the plaintiffs and the defendant, but was not signed or assented to by any of the creditors, could not be relied upon in defence as superseding his oral agreement; and that the replevin suit brought by the defendant did not constitute any defence to this action. The judge then said, in substance: “ Now if under these simple instructions you find the plaintiffs entitled to recover on the count in contract, what are the damages? Well, the plaintiffs say that they were in debt $2,400, that Levenson was to pay one third of it, by which that would have been settled, and that they were to pay him in addition to their debts $200; so that this settlement, if it had been carried out by Levenson, would have cost them ultimately $1,000, and by an outlay of $1,000 they would have wiped out $2,400 of debts, so that there they lost $1,400. And they say that they would have had back their property besides, and they have lost whatever those goods were worth.. I do not see but that is a fair statement of the rule of damages, provided the plaintiffs are entitled to recover, with an exception or two to which I am going to allude. Of course you have got to determine the value of the goods upon the evidence. Levenson says, ‘ Even if I am liable to the plaintiffs for these goods, I am not liable for their full value, for Waterman has had $450 worth of the goods, and I ought not to be held liable to him and his partner over again for goods which they have had and carried off.’ Well, that is true if they took the goods in a certain way, as for .instance if they went to the defendant’s premises without his knowledge and took off $450 worth of these goods, or if, recognizing that Waterman had some interest in the goods under the written plan of settlement, he allowed him to have that amount of the goods as one of the original part owners, and not upon terms of payment to him, then he would not, if liable at all, be liable for the value of those goods ; but if, on the contrary, he merely made a sale of them to Waterman, he could not rely upon that in reduction of damages, because that was an independent matter which he must settle with Waterman alone. If Levenson took the goods and did not return them when he ought to, he would be liable for nominal damages, and if the goods went to either of the plaintiffs by their action, and not by contract of sale, he would be liable merely for nominal damages.”</p> <p>The judge submitted to the jury the following questions: “ 1. Did the defendant enter into a contract with the plaintiffs whereby he agreed to furnish money to the extent of $800 for settlement with the plaintiffs’ creditors, and a further sum of $100 for expenses of said settlement? 2. Was the defendant unable to carry out such settlement by reason of the refusal of the creditors of the plaintiffs, or any of them, to accept a dividend of 33£ per cent?” The first question was answered in the affirmative, and the second in the negative.</p> <p>The jury on October 19, 1896, returned the following verdict: “ The jury find for the plaintiffs, and assess damages in the sum of $1,500, and interest to date, $315.10, making $1,815.10 ”; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in March, 1897, and afterwards was submitted on briefs to Ml the justices.</p>

<p>Bill in equity, filed November 16, 1896, praying that the defendant be enjoined from the transaction of business, and that a receiver be appointed to take possession of the property, collect debts, and distribute the funds ratably among the creditors who should prove their claims. Trial in the Superior Court, before Sheldon, J., who, at the request of the parties, reported the case for the determination of this court, in substance as follows.</p> <p>The defendant published the monthly magazine called The Arena, 30,000 copies of which were printed each month, and also printed books, having accounts with many authors. In November, 1896, one Jones, an employee of the company, obtained a judgment against it for $690.97, and for $7.82 costs of suit, on which exécution issued and was served; and the same being wholly unsatisfied, Jones filed a bill in equity for relief against the company, reciting that it was brought “ in behalf of himself and all other unsatisfied creditors of the defendant corporation, who shall join herein and become a party plaintiff to this bill.”</p> <p>The bill further recited that the defendant owed about $58,000 upon notes, and about $7,800 on sundry current bills, mostly to citizens of Massachusetts; that it was “ practically insolvent ” ; that the peculiar nature of the assets of the company justified a continuance of the monthly publication of the magazine, and the protection of its contracts with various authors, in order to maintain the good will of the business, whether for' purposes of a reorganization of the company, or for a sale of its assets to satisfy the outstanding debts of the company ; that divers suits were about to be instituted against the company, as a result of which the assets of the company would be of little or no value “ if sought to be reached at law, and if the said corporation should cease to do business and its assets should be disposed of by proceedings in insolvency, or under execution at law; and that if a receiver should be appointed to take charge of the business and assets of the corporation, and continue, subject to the approval of this court,The publication of the magazine,” and divers books, it would be more advantageous for all concerned.</p> <p>No attachment of property was made by the.plaintiff, either under the bill or under the proceedings in the court, when obtaining judgment against the defendant. An order of notice was issued on November 23,1896, to show cause why a temporary injunction should not be granted, and why a receiver should not be appointed as prayed for in the bill, the order being made returnable on December 1, 1896, which order of notice was duly complied with. No answer was filed by the defendant, but it was represented by counsel at the hearing to show cause. An injunction was issued, and Mr. Alfred D. Chandler was appointed receiver, on December 1, 1896, and duly qualified, and took possession of the company’s property on December 2, 1896.</p> <p>Under orders of the court the receiver continued the publication of the magazine for the two months of January and February, 1897, and under orders of the court, on January 23, 1897, he sold the property at public auction for $13,400.</p> <p>The decree for the proof of claims was made on December 24, 1896, extended on January 29, 1897, and expired, by extension, on March 1, 1897. About one hundred and .sixty claims were filed, representing about $65,000.</p> <p>On March 23, 1897, the receiver filed his petition in the Superior Court for instructions upon certain questions necessary for determination before a final distribution of the funds on deposit could be made.</p> <p>• 1. What date shall be taken to fix the rights of the parties., the date of the filing of the bill, November 16,1896, or the date of the appointment of the receiver, December 1, 1896?</p> <p>The judge directed a decree that the date of the appointment of the receiver, December 1, 1.896, was to be taken to fix the rights of the parties.</p> <p>2. Shall unpaid taxes on the personal property of the defendant, assessed prior to the receivership, be entitled to priority?</p> <p>The city of Boston duly filed its proof of claims with tho receiver for these taxes, amounting to $64.50, on February 25, 1897, the said proof containing' no claim for a priority in favor of the State, county, or city.</p> <p>On January 23, 1897, all the property of the defendant was sold by public auction, and the receiver’s bill of sale therefor was duly executed and delivered to the purchaser on February 3, 1897, who thereupon took possession of the property, no action by way of suit or distress for the collection of the taxes upon the personal estate of the company having been at any time taken by the city of Boston.</p> <p>The judge directed a decree that unpaid taxes on the personal property of the defendant,, assessed prior to the receivership, were to be entitled to priority.</p> <p>3. Shall salaries, wages, or compensation, due to an employee of the Arena Publishing Company prior to the receivership, be entitled to priority, and if so to what amount and for how long-a period preceding the receivership?</p> <p>The judge directed a decree that unpaid wages due to operatives, clerks, and servants,, to an amount not exceeding one hundred dollars for labor performed within one year of the appointment of the receiver, but no other wages to employees of the defendant were to be entitled to priority.</p> <p>4. Shall' a promissory note of the defendant, made between the date of the filing of the bill and the date of the appointment' of the receiver, be proved and allowed ?</p> <p>5. Shall a promissory note of the defendant, which matured on the date of the tiling of the bill, or which matured between the date of the filing of the bill and the date of the appointment of :the receiver, or which matured at any time thereafter, be proved and allowed ?</p> <p>The greater part of the indebtedness of the company was in the form of. promissory notes aggregating over $50,000. One or more notes were issued by the company in the interim between the filing of the bill .in equity, on. November 16,1896, and the date of the appointment of the receiver, on December 1, 1896. Most of the notes issued by the company matured at or after the date of the filing of the bill, many of them being notes given in renewal of old notes.</p> <p>Upon the fourth and fifth questions the judge directed a decree that promissory notes of the defendant, made between the date of the filing of the bill and the date of the appointment of the receiver, or which matured on the date of the filing of the bill, -or at any time thereafter, if made before the appointment of the receiver, were to be proved and allowed like other claims, but with adjustment of interest to the date of the appointment of. the. receiver.</p> <p>6. Shall a claim of Skinner, Bartlett, and Company, for $1,068.29 for printing and binding 30,000 copies of the Arena magazine for December, 1896, be entitled to priority, the said claim not being presented in this specific form to the court until April 27,1897, the time for filing claims having expired on March 1,1897, but the said claim being included in the general claim of said Skinner, Bartlett, and Company for $7,801.68, duly filed prior to March 1, 1897, of which general claim $6,092.62 are in promissory notes of the defendant?</p> <p>The magazines were delivered by Skinner, Bartlett, and Com-, pany in November, 1896, prior to the appointment of the receiver, in accordance with a written contract, partly to the defendant, and partly to the New England News Company in Boston, as a purchaser from the defendant. Many of the magazines so delivered to the defendant were sent to subscribers prior to the appointment of the receiver, and the remainder became a part of the assets in the hands of the receiver, which were sold by him under the order of the court. The New England News Company paid the receiver for that portion of the magazines which were sold and delivered to the said News Company prior to the receiver’s appointment. If Skinner, Bartlett, and Company had not delivered the magazines, the continuous publication of the Arena magazine would have been prevented or materially delayed, and the value of the assets correspondingly affected.</p> <p>The judge directed a decree that the claim of Skinner, Bartlett, and Company was not entitled to priority.</p> <p>From the decrees entered in accordance with the above directions, Skinner, Bartlett, and Company appealed.</p> <p>The case was argued at the bar in December, 1897, and after-wards was submitted on briefs to all the justices.</p>

<p>Personal Injuries — Due Care — Negligence — Death — Statute — Passenger.</p> <p>A person who runs across a railroad track from the station to the opposite platform on the walk provided for passengers, in front of an approaching train, which is . in plain sight and which he must see, and by which he is struck and injured, is riot in tiie exercise of due care.</p> <p>In an action against a railroad corporation, under Pub. Sts. c. 112, § 212, for causing the death of a person who was a passenger, there was evidence tending to show that he crossed a railroad track from the station to the opposite platform on the walk provided for passengers in order to take an approaching train for Boston; that the platform was narrow and the space insufficient for the accommodation of passengers who were accustomed to use it in taking trains ; that on this occasion the platform was crowded with passengers who intended to take the train; that he got one foot on the platform when he was struck by the train, being somewhat obstructed by the crowd, and but for the crowd might perhaps have saved himself; that the platform was so constructed that the locomotive and cars running on the track next to it overhung the edge of the platform; and that the approaching train was running at an extraordinary rate of speed up to and beyond the walk referred to. There was also evidence tending strongly to show that he had not abandoned his intention of taking the train and of proceeding in it. Held, that the intestate was a passenger within the meaning of the statute, and that there was evidence for the jury of the negligence or carelessness of the corporation, or of the unfitness or gross negligence or carelessness of its servants or agents while engaged in its business.</p>

<p>Personal Injuries — Employers' Liability Act— Superintendence — Negligence — Evidence — Wages — Damages — Expert.</p> <p>At the trial of an action under the employers’ liability act, evidence that a foreman of the defendant employed and discharged men, that he had seventeen or eighteen men working under him and subject to his orders as to the time of beginning and quitting work and as to the manner of its performance, and that he received higher wages than the others because he was the boss or foreman, is sufficient to show that his principal duty in the service of the defendant was that of superintendence.</p> <p>The fact that a foreman is paid higher wages than the ordinary laborers is a circumstance to be considered in connection with other evidence upon the question whether his sole or principal duty is that of superintendence.</p> <p>At the trial of an action for personal injuries occasioned by the falling of a fore and after, so called, through the hatch of a vessel into the'hold below, and striking the plaintiff, evidence that the plaintiff had been ordered by the defendant’s superintendent to spread a tarpaulin over a part of the cargo in the hold to protect it from falling rain ; that other laborers with a winch undertook to ship the lore and after over the combings of the hatch; that in so doing they attached to it the fall of the winch, whereupon the superintendent told the man in charge of the winch' to go ahead; that, as the winchman started it, the whelps on the barrel of the winch slipped because it was wet; that the superintendent then took the bite of the fall on the winch head, took three turns, and lifted the fore and after over the combings; and that when some one called out to lower, he unwound the rope from -the drumhead with his own hands in such a way that he could not control the fore and after, and it fell on the plaintiff, is sufficient to show negligence of the superintendent in the performance of his duty as superintendent.</p> <p>In an action for personal injuries received by the plaintiff while in the employ of the defendant, the wages that" the plaintiff was receiving as an employee at the time of the accident may be shown as bearing on the question of damages.</p> <p>At the trial of an action for personal injuries occasioned by the fall into the hold of a vessel of a fore and after, which the servants of the defendant were attempting to place over the combings of the hatch, an expert may answer a hypothetical question as to whether the method adopted of lowering the fore and after was proper.</p>

<p>Bill in equity, by the trustees under the will of Augustus Hemenway, to obtain the instructions of the court. Hearing before Allen, J., who reserved the case upon the bill and the answers for the consideration of the full court. The facts appear in the opinion.</p>

<p>Quieting Title — Statute.</p> <p>Where it appears that the petitioner was a purchaser of land at a sale on execution against the former owner and received a sheriff’s deed, that the time for redemption has expired, that no defect in the proceedings relating to the sale or in the sheriff’s deed are shown, and that no conveyance or assertion of claim to the land has been made by the former owner, the petitioner alleging that the former owner has disappeared and that his residence is unknown to the petitioner, who has reason to believe that he will not return, the petitioner’s title does not appear to be clouded by an adverse claim or by the possibility of such claim, within the meaning of St. 1893, c. 340, entitled “ An Act relative to quieting title to real estate.”</p>

<p>Contract, to recover the amount alleged to be due under the terms of a written agreement- made by the plaintiff with Edward P. Bliss and Henry W. Bliss, partners under the firm name of Cushing and Bliss, and by them assigned to the Massachusetts Mohair Plush Company. Trial in the Superior Court, without a jury, before Gfaskiü, J., who found for the plaintiff; and the defendants alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1898, and after-wards was submitted on briefs to all the justices.</p>

<p>Tort, under Pub. Sts. c. 112, §§ 212, 213, by the administrator of the estate of John Walsh, to recover damages for the death of his intestate on August 22, 1895. Writ dated November 15, 1895.</p> <p>The first count of the declaration alleged that on or about August 22, 1895, at about a quarter past nine in the evening, the plaintiff’s intestate was lawfully travelling on Winn Street, a highway in Woburn which is crossed by the railroad tracks of the defendant at grade, and forms a crossing such as is described in Pub. Sts. c. 112, § 163; that while the plaintiff’s intestate was in the exercise of due care, and while the gates were raised and there was no indication of danger, he undertook to cross the railroad tracks at such crossing, when he was struck by one of the defendant’s locomotive engines and received injuries which caused his death; that the accident happened through the gross negligence, carelessness, and unfitness of the defendant’s servants in failing to have the gates lowered when the train was about to cross the street, or in giving proper warning or signals at the crossing.</p> <p>The second count, after stating the manner of the accident substantially as in the first count, alleged that the accident was caused by the servants of the defendant, who neglected to give the signals when approaching said crossing by bell or whistle as required by Pub. Sts. c. 112, § 163, and that such negligence contributed to the injuries and death of the plaintiff’s intestate. Answer: a general denial.</p> <p>Trial in the Superior Court, before Hardy, J., who allowed a bill of exceptions in substance as follows.</p> <p>The plaintiff’s intestate was killed at about half past nine o’clock in the evening of August 22,1895, on the tracks of the defendant, at a place where Winn Street in Woburn crosses the railroad tracks at grade. When last seen by any one but the gateman, he was slowly approaching the crossing and seated in an open two-seated carriage, driving a safe horse, which he had driven for two years before the accident.</p> <p>The plaintiff introduced evidence tending to show that the railroad and Winn Street cross each other nearly at right angles; that from Winn Street an approaching train cannot be seen until it has passed under a bridge at Kilby Street, distant about four hundred and twenty-five yards; that from the direction in which the deceased approached the crossing no part of the track between Winn and Kilby Streets is visible, until the junction of Winn and Middlesex Streets, about one hundred and sixty feet from the crossing, is reached; and that trees on Middlesex Street, and a bill board and other structures parallel with Winn Street between Middlesex Street and the crossing, obstruct a view of the track.</p> <p>The plaintiff further introduced evidence tending to show that the crossing was equipped with gates, but that they were not operated later than a quarter past seven in the evening, after which lanterns were hung upon the upraised gates, and the gateman usually signalled the approach of trains by swinging a lighted lantern upon the crossing; that although the gateman was seen outside his gatehouse a few minutes before the accident, no light could at that time be seen either inside or outside the gatehouse, about the crossing or on the gates, and that he gave no light or signal of any kind; and that no whistle was blown by the locomotive between Kilby Street and the crossing, nor within a distance of at least eighty rods from the crossing.</p> <p>The defendant admitted that at the time of the accident the gates at the crossing were not lowered, and the engineer of the locomotive, called by the defendant, testified that he did not blow the whistle as he had orders not to do so.</p> <p>Various witnesses called; by the plaintiff testified that they were either standing near or approaching the same crossing in an opposite direction from the deceased, had an unobstructed view of the crossing and the approaching train, and that they saw no light or lantern swung by the gateman at the crossing, . which when the train approached was in darkness.</p> <p>One Mrs. Curry testified for the plaintiff that on the evening of the accident she and her husband had been with a friend to the railroad station at Woburn Centre, and in returning home they reached the Winn Street crossing just as the train which caused the accident was approaching; that she asked her husband to turn and see the train; and that they stopped and faced the train, ,had an unobstructed view of it, and her attention was concentrated on it all the time. Both Mrs. Curry and her husband testified that they heard the usual noise of an approaching train, but that they heard no whistle blown or bell rung before the train reached the crossing; and that after it had passed the crossing they turned and went home, unaware of the accident.</p> <p>One Horner, a gateman of the defendant, testified for the defendant that he attended the gates from half past six in the morning until a quarter past seven at night; that at half past nine he returned and flagged this train, which was an extra and ran regularly only in the summer, with a hand light; that on the night of the accident, when he received the electric signal of the approaching train, he took his white light, crossed the street, stood in the middle of it, and gave the signals to the cars as they were coming down ; that he then saw the deceased, perhaps three rods off, coming along quickly in a carriage; that, knowing that the train was coming, he swung the lantern in the horse’s face, and said, “ You won’t have tizne to cross,” or, “ You won’t have time to go through, you are too close ”; that not knowing who was in the carriage he did not take hold of the rein; and that the deceased, replying, “ I’m going through,” drove right along and was struck by the engine. On cross-examination he testified that the deceased was driving at a “ pretty smart trot, . . . from four to five miles an hour.”</p> <p>One Hill, a fireman, testified for the defendant that as the train approached the crossing he was sitting in his seat on the left hand side of the cab, and had his head out of the side window, and that he saw no light or signal of any kind at the crossing, nor gateman nor lantern, before the accident, but saw the gate-man after the accident, and that he then had a lantern. Both he and the engineer testified that he began to ring the bell as soon as they passed the Kilby Street bridge, and that they had been running this train only eleven days.</p> <p>Other witnesses who were driving towards the crossing testified that they saw no light or signal there before the accident.</p> <p>The foregoing was all the material evidence in the case, at the close of which the judge ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Equity — Mortgage — Bond for a Deed — Foreclosure — Rights of New Intending Purchaser.</p> <p>Where the title of the obligor of a bond for a deed has been foreclosed by a valid mortgage sale, and the land has been thereafter sold to bona fide purchasers, who took for value and without knowledge or notice of the claim of the obligee, he cannot charge a new intending purchaser with any duty to himself by notifying him before his purchase of the facts with reference to the bond for a deed.</p>

<p>Bill in equity, filed August 18, 1897, by a judgment creditor, praying for the application of the earnings of the defendant street railway company to the payment of his judgment, for the appointment of a receiver for that purpose, and for an injunction to restrain William M. Butler and Frederick L. Benson, two alleged creditors who had commenced actions, from causing to be taken on execution the franchise or other property of the company necessary to enable it to perform its public duties, all of which they had caused to be attached on mesne process.</p> <p>The bill alleged that, on August 2, 1897, the plaintiff recovered judgment in an action brought against the defendant company for $2,014.53 damages and costs of suit. The next day an execution was issued on the judgment, and delivered to a deputy sheriff, who on August 14, 1897, returned to court thereon that there were no goods, chattels, or lands whereof he could cause to be satisfied the judgment debt; and the judgment was still in force, and in no part satisfied.</p> <p>On June 24, 1897, during the pendency of the plaintiff’s action, the defendant Butler commenced an action in contract against the company, which was subsequently entered in court, and caused certain tangible personal property of the railway company to be attached, said property so attached being all the horses, harnesses, and tools then belonging to or possessed by the company, and also by the same writ attaching the franchise, and all the rights and privileges thereof of said company. This action was still pending.</p> <p>On July 2, 1897, the defendant Benson brought an action in contract against the defendant company, which was subsequently entered in court. Benson caused the same tangible personal property'to be attached that was attached on the writ in favor of Butler. These actions were both commenced after the verdict was rendered upon which the judgment in favor of the plaintiff against the defendant company was afterwards entered. Butler had been acting as counsel for the company, and Benson, when the bill was brought, was a director and manager thereof. There was no charge that their claims or either of them are fraudulent or dishonest, but the bill alleged that it was the intention of the defendant company to submit to judgments, and that it is the intention of attaching creditors “ that the property so attached under color of said writs should be sold under color of executions to be issued upon judgments to be recovered by Butler and Benson, so that the street railway company would be without any means of carrying on its business, or of earning any profits by means thereof, in case proceedings should be instituted by the plaintiff for the application of the earnings to the satisfaction of his judgment.” And that it is the further intention of the parties defendant that at such sale the property was to be purchased at a nominal price by and in the names of persons interested in and acting on behalf of the street railway company, upon an understanding that the company might use the same so long as there should be no such proceedings. The bill further alleged that, “ in pursuance of said purpose and intention of the said parties,” who were the defendants Butler and Benson, and the unrevealed persons “ acting for and in behalf of the railway company,” with whom also must be joined the deputy sheriff making the attachment, “ the property so attached by the said deputy sheriff, of which he retained possession, was placed by him in the custody of certain keepers who were servants of the street railway company, designated by said parties for that purpose, and the said street railway company, notwithstanding the said seizures and attachments, is continuing to use said property in its business as if no such attachment had been made.”</p> <p>The bill further alleged that the property attached was substantially all the personal property of the defendant company that is or can be used in its business, that its use was necessary to enable the defendant company to perform the public service for which it was incorporated, and that therefore the sale and transfer of the personal property by the company or under color of any execution or other process of law would be contrary to law and invalid; that the railway was receiving a large amount of earnings above all expenses, and inasmuch as the said street railway aud franchise and other property could not be taken on execution, the earnings ought to'be taken and sequestered by means of a receiver.</p> <p>The defendants demurred to the bill, assigning as grounds therefor: 1. want of equity; 2. that the plaintiff had a plain and adequate remedy at law; 3. want of title and interest in the plaintiff; 4. multifariousness.</p>

<p>Equity — Specific Performance — Law and Fact.</p> <p>Where an appeal is taken from a decree of a justice of the Superior Court dismissing a bill in equity, and there are no rulings of law or findings of fact by the justice making the decree, the only question for this court is whether such decree could properly have been entered upon any view which the presiding justice might have taken of the evidence.</p> <p>Where a bill in equity was brought for the specific performance of a written agreement for the conveyance of real estate, the testimony showed that the agreement was signed by the defendant and placed by him in the hands of an intervening broker, by whom it was subsequently handed to the plaintiff, and tlie evidence upon the question whether the delivery of the agreement was authorized by the defendant was conflicting. The presiding justice made a decree dismissing the bill, and made no finding of fact or ruling of law. Held, that it could not be said as matter of law that upon the evidence the presiding justice properly could not enter a decree dismissing the bill with costs.</p>

<p>Bill in equity, against the Merchants’ National Bank of Boston and John G. Stetson, to obtain from the bank a sum of money received on deposit. The defendant bank demurred thereto, assigning various grounds therefor. A decree was entered sustaining the demurrer and dismissing the- bill; and the plaintiff appealed to this court. The facts appear in the opinion.</p>

<p>Bill in equity, filed August 26,1897, in the Superior Court, for the specific performance of an agreement for the sale and purchase of certain real estate. Hearing on the bill, answer, and an agreed statement of facts before Lilley, J., who, having ordered that a decree be entered dismissing the bill and the plaintiffs having, appealed, at the request of the plaintiffs and with the consent of the defendant, reported the case for the determination of this court. If the ruling was correct, the decree was to be affirmed ; otherwise, such decree was to be entered as justice might require. The facts appear in the opinion.</p>

<p>Insolvency—Promissory Note — Mortgage — Preference.</p> <p>A., who was in an insolvent condition, on being pressed by a creditor, B., got 0., who was in B.’s employ, to indorse, on giving C. security, his (A.’s) note to B. for the debt, and gave C. a mortgage of nearly all his property. C. knew that A. was insolvent, and that A.’s. only motive for executing the mortgage, other than that of delaying creditors, which also was avowed by A., was to give further security to B., without receiving any new consideration from him. Held, ' on a bill in equity by the assignees in insolvency of A., brought three months and a half after the date of the mortgage and two- months after A. was petitioned into insolvency, that the mortgage was a preference, and that it made no difference that the attempt was in the manner described instead of the more direct one of a mortgage to B, '</p>

<p>Bill in equity, by the owners of the buildings 164 and 169 Tremont Street, Boston, to enjoin the defendant, as owner of 163 Tremont Street, from building out the front of his building over, the space about four feet wide between the front wall of his building and the line of the sidewalk, and in front of the line of the front walls of the plaintiffs’ building and other buildings in the block, on the ground of a condition in a vote and deed of the town of Boston in 1795 and 1796, and of a public right of way, by dedication or prescription, over said space. West Street and Mason Street intersect Tremont Street, one to the north and the other to the south of the place in question.</p> <p>Hearing before Allen, J., who ordered the bill.dismissed, with costs, and, at the request of the plaintiffs and with the consent of the defendant, reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Petition in equity, filed December 15,1897, by the receiver of the Commonwealth Mutual Fire Insurance, Company, for instructions as to the allowance and payment of certain claims.</p> <p>The petition alleged that on March 19,1895, an injunction was issued enjoining the company from proceeding with its business till further order of the court; that on March 26 the. injunction was modified so that the corporation and its officers might collect all moneys, cancel its policies without payment of return premiums, and make upon its members and collect from them an assessment as provided by law ; that on May 28, 1895, the petitioner was appointed receiver, and the injunction was modified so that the corporation and its officers should have no further authority to collect moneys, cancel its policies without payment of return premiums, and make upon its members and collect from them an assessment as provided by law, and the injunction, so far modified, was made absolute and perpetual; that subsequently to said March 19 certain losses by fire occurred on property insured on policies theretofore issued by the company, proofs of which had been filed but had not been allowed, among the parties being Washington G. Benedict, and Finlay and Macaulay; that an assessment was laid by the officers of the company before the injunction was issued, and notice thereof was sent by mail to the policy'holders liable to the assessment, demanding payment thereof, and notifying. them that, unless the assessment was paid within fifteen days after notice, all liability of the company for loss wmuld cease, such a vote having been passed by the directors of the company on January 28, 1895, and that among those so notified were Finlay and Macaulay, who failed to pay the assessment within fifteen days after notice thereof, and have never paid it.</p> <p>At the hearing before Holmes, J., appeared Benedict, Finlay and Macaulay, and the National Wall Paper Company, represented by counsel, and claimed the right to be allowed to prove their claims and to share in the assets of the defendant corporation under some appropriate order of the court. Benedict and Finlay and Macaulay had previously appeared before the auditor to whom was referred the question of the amount of the proposed assessment, and had prayed that their claims might be included therein. In accordance with the recommendation of the auditor, an assessment of $250,000 was afterwards levied under an order of this court dated March 5, 1896, in respect of losses existing before the petition was filed. The funds in the receiver’s hands were raised by this assessment. The parties mentioned in the petition paid their shares of the assessment, except as therein set forth. The judge ruled that no losses incurred after the filing of the bill were entitled to share íq the dividend, and ordered a decree to that effect upon the petition. The parties represented by counsel excepted, and, at their request, the judge reported the case for the consideration of the full court, such decree to be entered as equity might require.</p>

Bill in equity,' by the executor of the will of Ann White Dickinson, to obtain the instructions of the court as to the construction thereof and two codicils thereto. Held: and to whom paid over ? “ 14. Is the sum of five thousand dollars,- mentioned in section twenty-third of said memorandum or codicil of June 10, 1895, a trust fund? and if so, how shall the same be held, and to whom paid over ? “ 15.

<p>Two petitions to the Probate Court to revoke decrees of adoption of the respondents by John H. Collamore. The eases were heard in this court on appeals taken by the petitioners before Knowlton, J., who refused to admit certain evidence and to give certain rulings, and dismissed the petitions; and the petitioners alleged exceptions. The first named petitioner was a nephew and the second named was the only child of a deceased nephew of the adopter. The respondents were the children of a brother of the adopter. The facts appear in the opinion and in a note thereto by the reporter.</p>

<p>Valid Agreement not to compete in Business — Public Policy.</p> <p>H., M., and R., each of whom was the business manager of a corporation and a shareholder therein, on September 29, 1894, agreed in writing to form a new corporation, of which they were to be officers and directors. Each corporation was to sell its assets and good will to the new corporation, and each of these persons was to take one third of the capital stock of the new corporation and devote himself unreservedly to its interests. There was also a stipulation as to salaries, the allowance for assets of the three corporations, and as to the agreement being binding on approval of a majority of the shareholders or boards of directors of the three corporations. The A. Company was duly incorporated in accordance with the contract. On October 12, 1894, a written agreement was made between the A. Company and the other three corporations, whereby the assets and good will of the three were transferred to the A. Company, and the three agreed to discontinue business. The agreement, which was signed by each of the four corporations and by their officers, H., M., and R, contained the following stipulation: “ 6. It is further agreed by all the persons whose names are set hereunder, officers of the corporations herein above described, that they will not hereafter at any time, directly or indirectly, as partner, agent, officer of a corporation, or in any other wise, enter into or conduct or assist in conducting any business that shall in any way interfere with or compete with the proposed business of said A. Company for a period of five years; except that any one of said persons sever connection with said A. Company as provided by paragraph six of said agreement of September 29,1894.” The A. Company brought a bill in equity to restrain H. from competing with it contrary to article 6. The judge found that the instrument had been executed except this article, and had been adopted by the corporations; that the defendant sold his stock in the new corporation and withdrew from it, contrary to an article in the contract of September 29, to the effect that any one off the three could, in a certain event, sell his stock in the new corporation to the others at a price to be agreed upon or fixed by arbitration; that the defendant had violated and intended to violate article 6 of the contract of October 12; that all the allegations of the bill as to the validity of this article were proved; that, so far as he could find, this article was reasonable and necessary for carrying out the agreement; that the value of the stock of H.’s company was largely dependent upon the keeping of this agreement and the business of the A. Company was of a nature that might extend over the whole country. Held, that the stipulation of article 6 of the contract of October 12 was valid.</p>

<p>Partnership — A ccounting — Interest — Evidence of Surviving Partner — Finding of Master.</p> <p>Where, in a suit for an accounting, the testimony of the surviving partner on his contention that he is entitled to interest on a certain share of the partnership assets is discredited by the master, if there is nothing to outweigh the master’s ' finding and the accounts, a decree is properly entered for the administrators of the deceased partner.</p>

<p>Bill in equity, filed in the Superior Court, January 15, 1895, against James F. Mullen and Peter Williams, to compel the defendants to refund the residue of the proceeds of certain property conveyed by the plaintiff to them. A decree was entered dismissing the bill, by consent of all parties, against the defendant Williams, and adjudging that the defendant Mullen held in trust a certain sum for the use and benefit of the plaintiff, and ordering payment of the same; and Mullen appealed to this court. The facts appear in the opinion.</p>

<p>Contract, upon a policy of insurance for $10,000, against loss by fire on property of the plaintiffs in Boston, for one year from July 31, 1895. Trial in the Superior Court, before Hopkins, J., who directed the jury to return a verdict for the plaintiffs; and, at the defendant’s request, reported the case for the consideration of this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1897, and afterwards was submitted on briefs to all the justices.</p>

The case was submitted to this court, and, after a decree affirming the decree of the Probate Court, to the full court, on appeal, upon agreed facts, in substance as follows. On January 1,1880, the Massachusetts Central Railroad Company issued certain bonds, to secure the payment of which it gave a trust deed or mortgage of its property to three trustees.

<p>Contract, to recover the amount of a judgment paid by the plaintiff in an action brought against it, together with counsel fees and costs incurred in defending. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions, which appear in the opinion.</p>

<p>Petition, filed December 10, 1896, for a writ of certiorari to quash certain proceedings of the respondent.</p> <p>The petition alleged that, on April 3, 1896, the selectmen of the town of Blackstone filed a petition with the board of county commissioners of the county of Worcester, wherein they recited that St. Paul Street in said town was crossed by the location of the New England Railroad Company, and also by the location of the Providence and Worcester Railroad Company, not at grade in either case, but by separate bridges passing above St. Paul Street, and praying that said street might be widened, and alterations made in the bridges by lengthening the same and moving back the abutments thereof.</p> <p>After a hearing, the board, on July 14, 1896, made a return, granting in part the prayer of the petitioners; and the petitioner in the present case appealed to the Board of Railroad Commissioners, stating as l'easons therefor, “ first, that said alterations are not required by public convenience or necessity; secondly, that the expense of such alterations would be disproportionate to any advantage to be gained thereby; thirdly, that if any considerable proportion of said expense should be put upon your petitioners, it will be an expense not warranted by its financial condition ; fourthly, that the manner and limits in which the work should be done, as prescribed by the commissioners, is unnecessarily expensive, even if the alterations are necessary to be made.”</p> <p>At the hearing before the board, it appeared that, before the laying out of either of the railroads, all the land covered by and in the vicinity of the two crossings of St. Paul Street was in the possession of one owner, and that no highway or other. way existed where St. Paul Street now is. About 1846 this owner-sold to the Providence and Worcester Railroad a strip forming its present location over the present St. Paul Street, being south of and adjoining the location of the petitioner. The grantor-reserved in his deed a private way twenty feet wide. In 1847 the owner sold the Norfolk County Railroad Company, a predecessor of the New England Railroad Company, the strip forming its present location over the present St. Paul Street. In the deed no way was reserved. When the Norfolk County Railroad was constructed, however, a space twenty feet wide was left open through the raised bank or “ fill” over which the railroad was built at that point, this space being continuous with the private way reserved under the deed to the Providence and Worcester Railroad. At this point there was no public way until the year 1869, when the' present St. Paul Street was laid out as a town way twenty feet wide at the point in question, where it passed under the railroad bridge of the petitioner. In other words. St. Paul Street was laid out of such width as to include all of the land contained in the abutments of the railroad bridge, and no more. There was no change in the situation, with reference to St. Paul Street or the railroad bridge, from the time of the laying out to the present date, and the petition of the selectmen of Blackstoue was for the widening of said street so as to include the land now occupied by the northerly abutment of the. bridge passing over the street.</p> <p>The petitioner requested the board to rule, as matter of law, that it was not competent for it to order the widening of St. Paul Street as prayed for.</p> <p>The board refused so to rule, and ordered in writing that St. Paul Street be widened on the northerly side thereof, and that the northerly abutments of the railroad bridge be set back a distance of thirteen feet, and that the bridge be lengthened so as to conform to the widening of the street.</p> <p>The respondent demurred to the petition, on the ground that it did not set forth any legal cause for granting its prayer.</p> <p>Hearing before Knowlton, J., who, at the request of the parties, reserved the case on the petition and demurrer for the consideration of the full court.</p>

<p>Mandamus — Statute — Appointment of Registrars of Voters from the Two leading' Political Parties.</p> <p>The only test given in St. 1893, c. 417, as to the appointment of registrars of voters from the two political parties which at the next preceding State election were the two leading political parties is, that the registrar shall act with that one of the leading political parties which he was appointed to represent; and it is not required that he shall he recognized as in regular standing by, or shall in all things act with, the predominant faction or division of that leading political party.</p>

<p>Eminent Domain — Witness — Evidence — Damages— Discretion of Presiding Justice — Expert.</p> <p>If, at the trial of a petition for the assessment of damages for the taking of land by a city, an understanding between court and counsel is arrived at by which all inquiry as to the crops thereon, except as they are an element in the value of the land on the day of the taking, becomes immaterial, then the answer to a previous question that the witness, who was the husband of the petitioner, raised them by consent of the city after the taking, and the exception to that answer, also become immaterial.</p> <p>Where, at the trial of a petition for the assessment of damages for the taking of land by a city, a person who carries on a large market garden farm in a neighboring town, who has written and lectured upon agricultural subjects, and who examined the crops standing upon the land a few days after the taking, is not offered as a witness to the value of the land taken, it is. within the discretion of the presiding justice to exclude his opinion of the value of the crops as they stood upon the soil.</p>

<p>Libel for divorce, for the cause of gross and confirmed habits of intoxication. The libellee did not appear. Trial in the Superior Court, before Sherman, J., who ordered the libel dismissed, and, at the request of the libellant, reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Evidence — Poor Debtor — Record of Police Court.</p> <p>The record of a police court may not be controlled by oral evidence.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendants’ employ, by the explosion of a stick of frozen dualin held over a forge fire by one McMahon, another employee of the defendants. Trial in the Superior Court, before Sheldon, J., who, at the request of the defendants, directed the jury to return a verdict for the defendants; and the plaintiff alleged exceptions, which appear in the opinion.

<p>Bill in equity, for specific performance of an agreement to purchase a tract of land of the plaintiff. Trial before Holmes, J., who reported the case for the consideration of the full court, the plaintiff to have a decree unless the report disclosed grounds for denying specific performance. The facts appear in the opinion.</p>

<p>Carrier — Negligence in Transportation of Live Stock— Conflict of Laws — Lex Loci Contractus.</p> <p>The general rule that contracts are to be governed as to their nature, validity, and interpretation by the law of the place where they are made, unless it clearly appears that the contracting parties had some other law in view, is applicable to contracts of common carriers for the transportation of merchandise.</p> <p>At the trial of an action against an express company for negligence in the transportation of the plaintiff’s horses from a point in the State of I,, through several other States, to a point in this Commonwealth, there was evidence that the contract was made in the State of I., on a printed blank form in general use by the defendant, and in terms exempted the defendant from liability arising “ from any fault, negligence, or carelessness, gross or otherwise, on the part of said company, its agents or servants.” On the back of this contract was another one for the transportation of a custodian of the horses, containing a stipulation that “ any question arising under this contract shall be determined by the law of the State of N.,” in which State the alleged act of negligence occurred. Held, that these were separate contracts, and the stipulation of the second above quoted did not apply to the first, or indicate an intention that it should be governed by the law of N.; that evidence of the validity under the law of the State of N. of the provisions of the first contract exempting the defendant from liability, was properly excluded; and that the first contract was governed by the lex loci contractus.</p>

<p>Two actions of tort, for personal injuries occasioned to the plaintiffs by the explosion of blasting powder spilled from a can which one Labelle, who was in the defendant’s employ, had put down on the solid ledge on the side of the pit in the defendant’s quarry, above the place where the plaintiffs were working. The can was overturned by a tag rope attached to a derrick; and the declaration was under the employers’ liability act, St. 1887, c. 270.</p> <p>At the trial in the Superior Court, before Lilley, J., the jury returned verdicts for the plaintiffs, which the judge set aside as not warranted in law; and, at the request of the parties, he reported the cases for the determination of this court. If the ruling was right, judgment was to be entered for the defendant; otherwise, judgment on the verdict for the plaintiff in each case.</p>

Tort, under St. 1886, c. 140, to recover damages for the death of the plaintiff’s intestate, Thomas Raymond Austin, whose life was alleged to have been lost by reason of the gross negligence of the defendant’s motorman, while he himself was in the exercise of due care.

<p>Contract — Agency — Evidence — Admissions.</p> <p>At the trial of an action of contract for the price of goods sold to the defendant upon a verbal order given by his agent, evidence as to how the goods were directed is admissible, not only in proof of the delivery of the goods, but, in connection with the bill for the goods and the correspondence of the parties, as an admission by the defendant.</p> <p>At the trial of an action for the price of goods sold to the defendant in October, 1805, there was evidence tending to show that they were sold to him as receiver of the company on the verbal order of an agent; that as such receiver he had previously purchased like goods of the plaintiff; that the goods were shipped to him as receiver, and letters were sent to him addressed “ A. T. M., Receiver C. & IC. Co./’ asking for “ your check ” and for settlement of “ your account,” to which he replied on paper headed “ M. Brothers Company,” promising payment and signing it ‘‘A. T. M.” Payment having been delayed, the plaintiff again wrote, asking the defendant to “ let us have your check by return mail.” This was answered on paper of the “ B. Manufacturing Company,” of which, when the goods in controversy were ordered, the defendant was treasurer, and to which he had sold the assets of the C. & IC. Company. A subsequent letter, signed by the B. Manufacturing Company was sent, saying, “ We will send you a check on Saturday.” The plaintiff replied that he knew nothing of the company, and looked to the defendant for payment. Subsequently a check for a partial payment was sent in a letter signed “ B. Mfg. Co., A. T. M., Treas.,” which stated that the company had always regarded this account as belonging to it as sudcessor of the C. & K. Co., but added, “ However, this is a matter of little importance.” Held, that the jury were warranted in finding that the defendant was liable.</p>

<p>Personal Injuries — Negligence — Assumption of Risk — Breach of Employer's Duly to Employee.</p> <p>In an action for personal injuries occasioned to the "plaintiff while in the defendant’s employ as a salesgirl, it appeared that she had been sent up stairs to a room in a new part of the shop, to which the public had not had access ; that on her return she took a different way from that by which she went, and started down a winding staircase which also was not open to the public at the time; that the stairs were new and had been treated with oil or shellac; that to protect them while drying a loose piece of pasteboard had been placed upon each step, not covering it quite equally, the step not being of equal width throughout; that the plaintiff tripped or slipped on one of the pieces of pasteboard when part way down the stairs, fell, and broke her ankle; and that the staircase was light, and she understood the arrangement and its purpose. Held, that the defendant was not guilty of any breach of duty, and that the presiding judge rightly directed a verdict for the defendant.</p>

Contract, for a breach of an agreement by the defendants’ intestate, an attorney at law, to preserve the plaintiff’s rights and protect his interests in reference to the taking of a strip of land by the town of Framingham for the construction of a sewer. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions, the nature of which appears in the opinion.

<p>Goods sold. — A gtion —" Finding.</p> <p>A., who was the agent of a corporation in a certain city, and also had the exclusive sale of B.’s bicycles in that place,asked B.to have “my tires” (meaning the tires made by the corporation) put on the wheels which he ordered, B. giving him credit for the tires, and said that for his own accommodation he would like to have the tires come from the corporation, and to have them charged to B., because he would like to keep the tire account separate. Accordingly it was arranged that A. should send the goods from the corporation, billed by the latter to B., and that they should be credited to the corporation and be charged off by a draft of B. on A. in favor of the corporation, and the bicycles sent to A. were to be charged to him by B.; and this course of business was pursued. Bills were sent by the corporation to B. without objection on the part of the latter, who, upon request by the corporation for payment, sent it a draft in settlement of account, requesting that it be placed to his credit. Held, in an action by the corporation against B. for tires sold and delivered, that a finding for the plaintiff was warranted.</p>

Contract, upon a covenant against encumbrances in a deed conveying land in the town of Revere.

<p>Tort, for personal injuries. Trial in the Superior Court, before Sherman, J., who ruled that the plaintiff could not maintain his action, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion.</p>

<p>Mortgage — Future Advances — Interest.</p> <p>A mortgage was given upon a building partially erected, and the mortgagee advanced at the time of taking the mortgage a part only of the consideration named in the mortgage. The mortgagor agréed to complete the building before a certain date; and it was further agreed between the parties that if the work on the building should not be completed by the time agreed, the mortgagee might take charge of and complete the work, and that all sums so expended should be considered a part of the balance to be advanced on account of the mortgage. The mortgagee agreed to pay the balance of the loan thirty-five days after the completion of the building, provided there were no liens, etc.; and the mortgagor by his own fault did not complete the building within the required time, and the mortgagee did not take charge of or complete the work, and was not asked to, and did not offer to advance the balance of the mortgage, though he was always ready and able to advance the balance upon the completion of the building according to the agreement. Held, that the mortgagee was not entitled to interest on the money not advanced.</p> <p>Interest upon interest cannot be recovered simply on the strength of a demand.</p>

<p>Assessment Insurance Company — Receiver— Time at which Rights are fixed — Emergency Fund — Accrued Claims.</p> <p>The date when claims against the Massachusetts Benefit Life Association must have accrued, in order to be entitled to priority of payment, is the date of the filing of the bill in equity by the Attorney General for the winding up of its affairs.</p> <p>Cases where death occurred before the date of the filing of the bill in equity by the Attorney General against the Massachusetts Benefit Life Association for the winding up of its affairs, though not allowed or presented to the company before that time, are to be deemed accrued claims within' the meaning of St. 1890, c. 421, § 14, which provides that any unexhausted portion of the emergency fund shall be used, “ first, in the payment of accrued claims upon certificates or policies, or if insufficient to pay such claims in full, they shall be paid pro rata; second, if a balance remain, in the payment of like claims thereafter accruing in the order of their occurrence.”</p>

<p>Bill in equity, filed in the Superior Court, February 7,1898, praying for a reconveyance to the plaintiff of certain real estate which he had conveyed to the defendant Pfaff as trustee, to secure certain indebtedness due from the plaintiff to certain parties, and praying also that the defendant Pfaff be enjoined from making any conveyance of the real estate to any other person or persons, and for an accounting.</p> <p>The bill alleged that on January 8, 1897, the plaintiff conveyed to the defendant Pfaff, subject to mortgages amounting to $75,686, six certain parcels of land described, in trust, the deed, after the habendum clause, containing the following provisions, among others:</p> <p>“ Whereas the said grantor is jointly indebted to the H. & J. Pfaff Brewing Company, being a corporation duly organized by law and having its usual place of business in said Boston, and to Joaquin K. Souther and Clarence V. Souther, doing business under the firm name of J. K. Souther & Sons, in said Boston, in the sum of fifteen thousand one hundred dollars ; and</p> <p>“ Whereas the said grantor has requested the said H. & J. Pfaff Brewing Company and J. K. Souther & Sons to hereafter advance him seventy-nine hundred dollars, which they hereby jointly obligate themselves to do.</p> <p>“ Now, therefore, as and for security for the aggregate of said indebtedness and advance, to wit, the sum of twenty-three thousand dollars, the said grantee, his heirs and assigns, shall hold said property in trust, as follows :</p> <p>“ I. To hold, manage, and take care of the same as a trust estate or fund, with the following special powers, as well as the ordinary powers of management, to wit: . . .</p> <p>“ (5) To sell, partition, exchange, or release any of the 'property, real or personal, at any time belonging to the trust estate as a whole or in parcels, for cash or on credit, at public or private sale, at such time or times and subject to such terms, restrictions, conditions, and agreements as he shall see fit to give deeds accordingly, and with or" without covenants; and such sale, partition, exchange, or release shall forever bar me and all persons claiming under me from all right and interest in said premises, whether at law or in equity, and that the same may be made without further notice to me or permission of the court to sell, and I hereby for myself, my heirs, and assigns, covenant with the grantor and his heirs and assigns that 'in case a sale or sales shall be made I or they will upon request execute, acknowledge, and deliver to the purchaser or purchasers a deed or deeds of release confirming such sale; provided, however, that no sale as aforesaid shall be made within one year from the date of these presents.</p> <p>“ (c) To convert realty into personalty, and personalty into realty.</p> <p>“ (d) To use such cash as may at any time belong to the trust fund for the purpose of reducing or paying off mortgages or other encumbrances upon it, or to employ such cash to the reduction of the said indebtedness of twenty-three thousand dollars of the grantor to the H. & J. Pfaff Brewing Company and J. K. Souther & Sons.</p> <p>“ (e) To borrow money on such terms as they see fit, either for the purpose of reducing, paying off, taking up, or extending mortgages or other encumbrances at any time existing upon the trust estate, or any part thereof, or for the purpose of building or making permanent improvements upon any real estate at any time belonging to the trust, or to apply the same to the reduction of the said indebtedness of twenty-three thousand dollars; to secure such loans by notes, bonds, deeds, power of sale, mortgages, or other obligations binding the trust estate, or any part thereof, in mortgage, pledge, or otherwise, as he shall deem fit; to extend or renew any existing mortgage if he sees fit, and with the following special duties, to wit:</p> <p>“ (a) To pay out of the principal of the trust estate all brokers’ commission, counsel fees, and other expenses connected with loans to or by the trustee, of sales, exchanges, partitions, or releases made by him, or of purchases or investments, or any expenses incurred in the management of said property and the employment of agents. . . .</p> <p>“ (5) To pay all taxes, assessment's, disbursements, charges, and expenses connected with said trust estate. . . .</p> <p>“ IV. And after retaining whatever sums he shall see fit to provide for the payment of mortgages or other encumbrances on the estate, and after deducting all expenses from the income received, to pay out the balance of the residue or net income of the trust estate for the purpose of paying the interest on and of reducing the principal of the aforesaid indebtedness of twenty- r three thousand dollars. ...</p> <p>“ VIII. At any time during the continuation of this trust the provisions may be altered or annulled by any instrument signed by me and the trustee, and duly recorded with Suffolk Deeds, the intention of this provision being to reserve to myself, with the consent of the trustee, which he is to exercise according to his discretion, a power of revocation. Unless sooner terminated, this trust shall continue until the said indebtedness of the said grantor to the said H. & J. Pfaff Brewing Company and J. K. Souther & Sons shall have been paid in full, and upon such payment this said trust shall terminate, and the said trustee shall pay over and convey the trust property remaining in his hands to the said grantor, his heirs, administrators, and assigns, or to whomsoever he shall in writing designate, or by his last will, duly probated, appoint.”</p> <p>The bill further alleged that the plaintiff had asked the defendant Pfaff to account, but that he had refused so to do; that the plaintiff had reason to believe that the defendant Pfaff was about to convey the real estate, and the plaintiff offered to pay to the defendant Pfaff whatever amount should be due from the plaintiff to the H. and J. Pfaff Brewing Company and J. K. Souther and Sons.</p> <p>The answer alleged that the plaintiff had no right by the deed to a reconveyance of any of the property except such as should remain subject to the trust, and unconveyed at the time of payment; that the sales provided for in the deed gave to the trustee the most ample powers to sell in his discretion, the only limitation being that the same should not be exercised within one year from the date of the conveyance; that on December 7, 1897, the plaintiff was notified in writing that the trustee would sell part or the whole of the estate, and that after the expiration of the year, on January 8, 1898, the plaintiff and his attorney were repeatedly notified orally that the trustee proposed to sell; that on January 20, 1898, the defendant entered into a written agreement, a copy of which was annexed, to sell all the premises to William K. Porter for -$88,000, which sum was in excess of the tax valuation, and was as large a price as by any reasonable expectation the trustee could obtain for the property. The bill also alleged that the defendant had never, until the filing of the bill, offered to pay the indebtedness due under the trust agreement, nor had he until that date ever asked for an accounting, and that the defendant was and always had been ready to account.</p> <p>William K. Porter, who was on motion admitted a party defendant, filed an answer, in which he alleged that he entered into the agreement to purchase the property in good faith, and that the same was legal and binding.</p> <p>Hearing before Mason, C. J., who entered a decree that, it being conceded by counsel that the right to redeem subject to the agreement between the defendant Pfaff and William K. Porter would be of no value and was not desired, and that, unless the plaintiff was entitled to redeem free from an obligation to convey pursuant to said agreement, there was no occasion to ask for an accounting at the time, the said agreement between Pfaff and Porter was a valid contract, and by reason thereof the plaintiff could redeem only subject to the obligation to convey under the agreement, and the bill was dismissed, with costs. The plaintiff appealed to this court.</p>

<p>Rule to Commissioners—Report to the Court—Statute — Reservation or Report of Questions of Law arising upon an Award — Division of the Corporate Property of a Town upon the Division of the Town into separate Townships.</p> <p>Questions of law arising upon an award may be reserved or reported, under general provisions of statute, although the statute under which the commissioners are appointed provides that their award, when accepted by the court, shall be binding on all parties.</p> <p>The St. of 1892, c. 216, entitled “An Act to incorporate the town of West Tisbury,” requires an equal division of the corporate property.</p>

<p>Contract, for rent, under a written lease. Trial in the Superior Court, before Mason, C. J., who held that there was not sufficient evidence to warrant a verdict for the plaintiff as his case was presented by the declaration, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Evidence — Agreement as to Building on Leased Land remaining Personal Property.</p> <p>Evidence tending to show an agreement between the lessor and the lessee, outside of the lease, that a building on the premises should be and remain the personal property of the lessee, is rightly admitted; and such agreement is not inconsistent with a phrase following the description of the land, “to be occupied by a building erected thereon by said R.,” the lessee, or with a covenant that at the termination of the lease the lessee should deliver up the premises in as good order and condition as they then were or should be put into by the lessor. Where a lease itself shows the lessor’s assent that the lessee should erect a building, evidence that the lessor directed that it should be so built that it could be moved when the lease expired, that he made no reply when told by the lessee that he would have to mortgage the building to pay for it, and that the lessor told the lessee that he did not want him to put up any wall or anything that would obstruct the place, justifies a finding that there was an agreement that the building should be the personal property of the lessee.</p>

<p>Petition, for an assessment of damages occasioned to the land and buildings of the petitioner in Boston by a taking by the respondent, under St. 1892, c. 433, entitled “ An Act relating to the abolition of certain grade crossings of the Boston and Providence Railroad,” and St. 1893, c. 126, entitled “ An Act in relation to raising the grade and changing the location of the Providence Division of the Old Colony Railroad in the city of Boston.”</p> <p>Trial in the Superior Court, before Dewey, J., who ruled that the petitioner was entitled to interest from the date of the taking, and, after a verdict for the petitioner, reported the case for the determination of this court. If the ruling was right, judgment was to be entered upon the verdict; otherwise, interest upon the damages awarded was to be deducted from the amount of the verdict, and judgment was to be entered for the remainder. The facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The defendant admitted its liability for any injuries to the plaintiff which were due to the accident hereinafter described.</p> <p>The plaintiff testified, in substance, that on May 7, 1896, while he was a passenger on a train of the defendant, at about 7.30 P. M., the car in which he was riding, near its station in Boston, was derailed and tipped over; that the plaintiff was thrown against the back of the seat behind him, and then against the back of the seat in front, and then against the opposite side of the car, on which side the car tipped over and his left leg went through the window, and this side of the car, with his leg under it, was scraped along the ground for some distance ; that he was unconscious for a time, and, when he recovered his senses, was put in a hack at the defendant’s station and sent to the Emergency Hospital; that he stayed there under the direction of the doctors until they found time to examine him; that then one of them examined him and dressed his injured leg, and put a bandage on it; that he remained there about two hours, and from there he went outside and got a hack, as he was told at the hospital that they had no accommodations for him to stay over night, and he must find a place for himself; that his leg along the shin bone was cut and bruised, and the skin scraped off; that he then went to the home of a cousin in Readville ; that on the next day he came to Boston about eight o’clock in the morning, for the' purpose of going to the Massachusetts General Hospital 'for treatment, and on his way to the hospital stopped at the defendant’s station, the scene of the accident, for the purpose of recovering property which he had lost at the time he was injured; and that while there his leg began to swell and pain him so much that he went to a house in Boston where a cousin lived, and went to bed and sent for a doctor.</p> <p>Dr. Coxwell, called as a witness by the plaintiff, testified that he was called to attend the plaintiff some time during the day, and visited him at about six o’clock in the evening, on May 8, 1896; that he found a wound on the plaintiffs left leg, which was inflamed and tender, and in which blood poisoning had already set in; that the leg had an antiseptic dressing over the wound and a surgical bandage from the instep to the knee wound around the leg;.that this bandage thoroughly protected the wound and supported the leg in case the patient used it; that the witness cleansed it and applied antiseptic dressing, and raised the leg; that the blood poisoning was probably due to the dirt, or glass, or rusty iron, or germs that entered the flesh at the time of the accident; that blood poisoning began immediately, and it was not possible at the time he examined the wound thoroughly to disinfect it; that erysipelas had set in, and the whole system was infected; that the plaintiff’s head, right hip, pelvis, and lower part of the back were found to be injured; that his heart was examined with the stethoscope and found to be sound; that the witness visited him professionally up to the day of the trial; that periostitis of the left leg, which was a poisonous disease, set in a. few days after the injury; that upon consultation with another physician, whom he called in on account of the plaintiffs dangerous condition, he decided to operate on the leg, and on May 16, 1896, he made an incision through the periosteum down to the bone; that after that he dressed the wound two or three times daily, as he did before; that, as a result of the poisoned condition of the wound, septic endocarditis set in, which produced organic lesions of the heart, and resulted in severe valvular disease of the heart; that the injury to the leg caused a shrinking of all the tissues of the leg, and weakened the limb, and this condition existed at the time of the trial; that there was an inflammation of the hip joint, a swelling of the joint, and the parts and ligaments surrounding it were swollen , that this inflammation increased during the first three weeks, continued for several months, and gradually subsided until the plaintiff got out of bed and went around on crutches; that since then the progress had been slower, and there was pain upon use in this joint, and would be for an indefinite time in the future; and that the pelvis was wrenched and sprained, and this condition vvas one of the reasons why he used a cane in getting about, and from which he would probably never recover.</p> <p>Upon, cross-examination this witness, and several other medical witnesses, testified that blood poisoning was not an ordinary incident of wounds, if they were treated by antiseptic cleansing and dressing, or were cleansed and dressed in a proper manner.</p> <p>The plaintiff testified that for two years previously to the injury he had been studying law in an office in Providence, Rhode Island, but he did not testify as to what the amount of his earnings were at any time.</p> <p>A witness called by the plaintiff testified that he bad employed him to make repairs on real estate a short time before the injury, and described what the plaintiff did.</p> <p>There was testimony by Dr. Coxwell that he had attended the plaintiff some two hundred times during his illness.</p> <p>There was also evidence that Dr. Coxwell had been surgeon to the Worthing Hospital in England for fifteen years, city physician of Worthing for eighteen years, and medical esxaminer for a number of large life insurance companies in London for twenty-five years; that he had practised medicine and surgery in England for twenty-seven years, and probably had between three thousand and five thousand cases a year; and that since April, 1893, he had been practising medicine and surgery in Boston.</p> <p>Mary Young, who was the plaintiff's cousin, testified that he came to her house the day after the accident, and remained there five weeks; that he was confined to the bed all the time; that she took care of him during the first week; that his condition was very bad, and he got so she could not take care of him, and then she got a male nurse; and that he was delirious “ most all night.”</p> <p>James J. Mulvey testified that he was a second cousin of the plaintiff; that he had known him ten or twelve years, and been in the habit of seeing him two or three times a year; that after the accident he took care of him at' Mrs. Young’s house, beginning after the first week, for four weeks; and that his condition nights was very poor, and when talking he seemed to be out of his mind.</p> <p>Mrs. Lane testified that the plaintiff came' to her house in June, 1896, and remained there until September 19,1896 ; that she took care of him; that he was very ill during the first three or four weeks, and he was confined to his bed for several weeks; and that Dr. Coxwell arranged for him to come to her house, as the house in which he had been staying was sold and the inmates were ordered to leave it.</p> <p>There was testimony that the plaintiff might live an indefinite period if he used proper care, but that he would never be able to work physically or mentally in the future, and would have to have medical attendance as long as he lived.</p> <p>Dr. George H. Monks, a witness called by the defendant, testified that occasionally cases of periostitis develop after such injuries without any cause being apparent; that it was rather uncommon for periostitis to develop after a wound; that it might develop after such a wound as this was said to have been, as a result of the fact that the wound had not been kept or made surgically clean ; and that that was the principal reason, or from the fact that the leg had not been properly rested.</p> <p>The defendant requested the judge to rule as follows:</p> <p>“ 1. If the jury find that blood poisoning was not the natural and ordinary consequence of the wound on the plaintiff’s leg, but was due to improper or imperfect cleansing or dressing of the wound, the defendant would not be liable for the blood poisoning, or for its effect upon the plaintiff.</p> <p>"2. It was the plaintiff’s duty, having been injured, to use reasonable diligence to obtain suitable medical treatment, and if the treatment which he obtained was improper or negligently applied, or if the person giving such treatment was negligent in applying or omitting to apply proper treatment, the defendant is not liable for the consequences thereof.</p> <p>“ 3. There is no evidence of what the plaintiff was earning at the time of the injury, or of what his earning capacity was, and the jury cannot award damages for the loss either of his earnings, or capacity to earn.</p> <p>“ 4. There is no evidence that the plaintiff has been put to any expense by reason of his injuries, and the jury can award him no damages upon that ground.”</p> <p>The judge declined so to rule, and instructed the jury, among other things, as follows:</p> <p>“ The test whether the relation of cause and effect exists between two things — because that is the question here, whether the injury is the cause of the present condition of the plaintiff — is not whether such a condition of things as you may find now exists with this plaintiff commonly and ordinarily follows, but whether it does sometimes follow, and as a matter of common knowledge and experience may be expected sometimes, in rare cases possibly, to follow from an injury of that kind. The question for you is a practical one, whether, using language as it is ordinarily used and understood, the condition of the plaintiff to-day, for which he seeks to recover damages, was the effect of an injury received by him in May, 1896. If it was, then there is the relation of cause and effect such as to subject the defendant to liability for those consequences which ensued from the injury so received by the plaintiff.</p> <p>“ The burden is upon the plaintiff to satisfy you that the illness with which he is now afflicted, and from which it seems to be conceded by all the experts he will never entirely recover, is due to the injury received at the time when this accident occurred, either wholly or in part. If you find-upon the evidence that he has sustained the burden of proof in this respect, and that his present physical condition is due wholly to the injury received at that time, then he is to be compensated- by having what you say will afford reasonable compensation for his present condition. If upon the evidence you find that his present condition is not due wholly to the injury received, but that that condition of things existed in' part before the injury, and still you are of the opinion that this particular trouble was aggravated and intensified by the injury, then so far as it was so aggravated — and the burden is upon the plaintiff to show you how far it was aggravated — he is to have damages only sufficient to compensate for the increase or aggravation of the illness in this respect. . . .</p> <p>“ What are those elements which ordinarily are to be considered by the jury in assessing damages in a case of personal injury? One of them is the impaired capacity to earn money in the. performance of manual or mental labor, and of course in the determination of that question the jury must take into consideration the age of the plaintiff, his probable expectation of life, how far he has capacity to earn money as men ordinarily do in the performance of work which they are fitted or accustomed to perform, whether that work is physical or mental labor, and the jury must say how much the plaintiff should have by reason of this impairment of capacity in the use of physical powers to earn money.</p> <p>“Then, again, the plaintiff is entitled to recover the sum which you find he has reasonably and properly expended in endeavoring to effect a cure. What he has reasonably paid for medical attendance and nursing and medicine, so far as the evidence in the case enables you to determine, in an attempt to effect a cure, he is entitled to recover in this case. And if the evidence shows that to some extent" it would be necessary for him to incur similar like expenses in the future for medical attendance and nursing, he is to have that taken into consideration at the present time. ...</p> <p>“ The plaintiff might have shown, had he seen fit to do so, what he had actually expended up to the present time, what liability he had actually incurred, and he might have offered evidence to show that the expense he had incurred up to the present time was reasonable and proper. But the plaintiff is not required to furnish so definite proof as that unless he sees fit to do it. There is evidence in the case as to medical attendance. Dr. Coxwell told you the number of visits he had made to the plaintiff for the purpose of treating him. There is no evidence as to what the ordinary charge for such a visit is. There is no evidence as to what the charges of Dr. Coxwell ordinarily are. ... I must assume that you have some knowledge in common with men in general as to the charges ordinarily made by physicians for attendance and services such as you find upon the evidence in this case have been rendered, and you may avail yourselves of that knowledge for the purpose of determining what sum the plaintiff should have by reason of the expense he has properly and reasonably incurred in endeavoring to effect a cure.</p> <p>“ The contention of the plaintiff is that the heart disease, as existing at the present time, is fairly attributable to the injury. . . . And the plaintiff says that upon the evidence of the experts you ought to be satisfied that the present condition of the heart is due to that injury. There was the injury, then, as the plaintiff claims, of blood poisoning, and then different conditions of things finally resulting in the present condition of the plaintiff’s heart, a condition which it is conceded incapacitates the plaintiff for the performance of ordinary work, and a condition from which it is conceded that there is not likely to be a recovery.</p> <p>“ Suppose that condition of things, the injurious results of blood poisoning might have been averted by proper medical treatment; it is the contention of the defendant, among other things, that the injury received did not naturally result in the condition of things now existing. In other words, that there is not the relation of cause and effect between the injury confessedly received in May of last year and the physical condition of the plaintiff to-day, and for a considerable time prior to the present time.</p> <p>“ It is said upon the evidence you may find, or ought to find, that he did not receive proper medical treatment, and that the poisoning by the entrance of germs into this wound might have been prevented by proper treatment. Suppose that to be so, how is the plaintiff affected ? The plaintiff was required to use reasonable care in order to effect a cure; he must use reasonable care to secure proper medical and surgical treatment after he was injured; he must use that degree of care in respect to securing proper professional treatment that men of ordinary prudence and discretion do use in similar cases, and if in fact the plaintiff did use such a degree of care, he did all in the first instance that the law required him to do. If in the exercise of reasonable care he properly called in the services of Dr. Coxwell, then the plaintiff would not be responsible for the consequences of a mistake made by his attending physician, however serious that mistake might be. Suppose a case, one where upon the evidence you were satisfied that the condition of the plaintiff as it is to-day was due to the fact that he did not have from his attending physician or surgeon proper treatment, and that it was due wholly or mainly to that. Still, if the plaintiff in the selection of the physician or surgeon, and in compliance with the directions of his physician, was in the exercise of reasonable care, the defendant is still responsible in damages for the injurious results to the plaintiff of the injury, although those results are more serious than they would have been had he had better treatment.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Equity — Obstruction oj Easement.</p> <p>A. owned a mansion house, the land appurtenant to which was bounded easterly by T. Street, southerly by B. Street, and northerly by an open court about twenty feet wide, extending to his western boundary, and also owned by A. On the northerly side of the court he owned three dwelling-houses, facing southerly, and occupied by his married daughters. His mansion house, having an ell extending westwardly, stood about three feet from the court, separated from it by a fence six feet high, in which was no opening. Five windows of the mansion house opened on the court, in which was a drain used by all four houses. At his death A. devised the three dwelling-houses on the court to his daughters severally in fee, with the “ respective privileges and appurtenances by them at the day of the signing of this will respectively occupied and improved,'/ and devised his mansion-house to liis wife for life, remainder to his son W., subject to the condition that they should personally occupy the same, “ it being my design that the family establishment shall continue as much as possible unchanged,” and the residue of his estate, including the open court, equally to his children. A.'s son W. having died, the mansion-house estate was conveyed by his administrator to D., who subdivided the estate, and conveyed two of the lots created by such subdivision and fronting on B. Street to E. and E. The lots owned by E. and E. both bounded northerly on the open court, and both were west of the most westerly of the windows of the mansion-house, which, before its removal, had opened on the court, and no other buildings formerly standing on the mansion-house estate had depended oh the court for light or air. The owners of the open court and of the land devised to A.’s daughters proceeded to erect a building over the court, leaving open only a covered foot passageway, and thereupon E. and E. sought to restrain such erections. Held, that the testator A. created no further easement in respect to keeping the court open above the surface of the ground than the ordinary easement of light and air for the benefit of the mansion-house estate, and that this easement was limited to the mansion-house itself, and did not extend to the land owned by E. and F.</p> <p>An administrator who, under leave of the Probate Court, conveys land of his intestate, bounding it “ in part on a court,” which was owned by his intestate with others as tenants in common, does not create by estoppel a right to have the court left open.</p>

<p>Petition to the Superior Court for the assessment of damages sustained by the petitioners by the taking of land for changing the grade of Cochituate Street in front of their premises in Natick, for the purpose of abolishing the grade crossing of said street with the Saxonville Branch Railroad, so called, under the provisions of St. 1890, c. 428, and acts in amendment thereof. The crossing was abolished by the decision of the three commissioners appointed by the court on the joint petition of the selectmen of Natick and the directors of the Boston and Albany Railroad Company, which decision was duly confirmed, and the findings thereof adopted by the Superior Court.</p> <p>At the trial in the Superior.Court, before Mason, C. J., the respondent, at the close of the evidence requested the Chief Justice to instruct the jury that the only right or easement acquired in the petitioners’ land by the taking was the right to slope the filling so far as it might be necessary to hold the embankment and that the damages should be limited to the injury which such an easement would occasion to the land taken.</p> <p>The Chief Justice refused so to rule, and instructed the jury that, under the taking, the respondent would have the right to make any use of the land which can be made of any land taken for a highway, and that the jury in assessing the damages might have reference to all uses to which land taken for a highway may be put; and the respondent excepted.</p> <p>The jury returned a verdict for the petitioners; and the respondent alleged exceptions.</p>

<p>Petition, to enforce a mechanic’s lien. Trial in the Superior Court, without a jury, before Hardy, J., who found for the respondent; and the petitioner alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while a passenger on the defendant’s train. Trial in the Superior Court, without a jury, before Blodgett, J., who found for the plaintiff in the sum of $15,000; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Contract — Liability of Father for Debt of Minor Son — Exception.</p> <p>At the trial of an action to recover for services as a dentist rendered to the minor son of the defendant, it appeared that the son, who was a boy nineteen or twenty years of age and lived in his father’s family, went to the plaintiff while suffering from a toothache and had his teeth' filled. After the services were rendered he told the plaintiff to make the charge to his father. There was evidence that twice during the lifetime of the minor the plaintiff sent a statement of his charge for the services to the defendant, and received no reply. Once a statement was sent by mail, postage paid, with a request printed on the corner of the envelope to return to the plaintiff if not called for within five days, and this letter did not come back to the plaintiff. The jury returned a verdict for the plaintiff. Held, that the defendant had no ground of exception to the refusal of the judge to rule “ that upon all the evidence the plaintiff was not entitled to recover."</p>

<p>Mortgage of Railroad — Transfer to Individual — Appeal from Decree of Court of Insolvency — Equity— Statute.</p> <p>A railroad company, pursuant to St. 1874, c. 372, § 57, (Pub. Sts. c. 112, § 80,) gave its negotiable promissory note to a connecting railroad company, secured by a mortgage on its property and franchises, made to two persons as trustees for the promisee, containing a power to the mortgagees to sell the property and franchises at auction for a breach of the condition of the mortgage. Subsequently, the mortgagees and the promisee entered into an agreement with A., a natural person, that upon certain payments made by him from time to time they would transfer the note and assign the mortgage to him, and until the final payment they should hold the note and mortgage and enforce the same for his benefit. A., after making two partial payments under the agreement, became insolvent, and his assignee in insolvency brought an action against the original promisee to recover back the money paid to it. Held, that the action could not be maintained.</p> <p>A railroad company which was, pursuant to St. 1874, c. 372, § 57, (Pub. Sts. c. 112, § 80,) the holder of a mortgage of the property and franchises of another railroad company, entered into an agreement with A., a natural person, upon the payment of a certain sum by him, to assign and transfer to him the mortgage and the note secured thereby, A., having paid a portion of the sum, became insolvent, and upon the petition of the mortgagee the Court of Insolvency directed a sale of the mortgaged property and franchises, and authorized the mortgagee to prove its claim as a creditor for any balance of the debt, and the assignee appealed to the Superior Court, and, on the affirmation of the decree, to this court. Held, that the proper remedy was by an application to this court under Pub. Sts. c. 157, § 15; that the Superior Court had no jurisdiction, and that the appeal should be dismissed.</p>

<p>Tort, for damages occasioned by the loss of the plaintiff’s mill and grain elevator, on January 18,1891, by a fire communicated by one of the defendant’s locomotives. Writ dated August 12, 1896. The plaintiff alleged in the declaration that she brought the action for the insurance companies to the extent of the amounts paid by them, and for her own use and for the excess of her loss over said amounts and interest. Trial in the Superior Court, before Braley, J., who allowed the following bill of exceptions.</p> <p>The plaintiff’s mill was in Billerica, and its westerly end stood about fifteen feet from the defendant’s railroad track. It was a wooden building, two stories high, upon stone foundations. On the side nearest to the railroad there were four basement windows, in one of which, for two or three days previous to the fire, there had been, to the knowledge of the occupants, a broken pane of glass. There was an office containing a stove, and an engine in the building, and in a shed or “ lean to ” a boiler; but there was no fire in the office stove on the day of the fire, and there had been none in the boiler furnace for two days prior thereto. The basement was stored with merchandise, and near the broken window pane was a quantity of hay.</p> <p>At about noon on the day of the fire the defendant’s locomotive engine passed the plaintiff’s mill with a train of cars, puffing hard and throwing smoke and sparks, and a wind was blowing at that time across the track toward the mill, and the weather was misty and sleety. The fire was discovered a short time thereafter, and when first seen was in the hay under or nearly under the broken window. The building and contents were destroyed, and the plaintiff afterward received $4,500 insurance thereon.</p> <p>At the close of the plaintiff’s case the defendant requested the judge to rule that the plaintiff was not entitled to recover, but, the judge refused so to rule, unless the defendant would also rest. The defendant declined so to do, and excepted to the judge’s refusal to rule as requested.</p> <p>The defendant then offered evidence tending to prove that rain was falling on the day of the fire; that the engine was equipped with a spark arrester, and had a heavy netting in the smokestack, and was not known to throw sparks; that when passing the plaintiff’s mill the fire of the engine was not being stirred, nor was the engine throwing sparks.</p> <p>The defendant requested the judge to rule: 1, that upon all the evidence the plaintiff was not entitled to recover; 2, that the conduct of the plaintiff, either by way of contributory negligence or else as furnishing proximate cause for the fire, was such that she was not upon the evidence entitled to recover; 3, that, under the St. 1895, c. 293, relative to damages from fires communicated by locomotive engines, the measure of damages was the fair value of the property, as shown by the evidence, upon the day of the fire, less the amount received by the plaintiff for insurance thereon.</p> <p>The judge declined to rule as requested, and ruled that, if the action could be maintained, the plaintiff was entitled to recover the fair value of the property at the time it was burned.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by reason of the alleged negligence of the motorman of a street car operated by electricity belonging to the defendant, of. which car the plaintiff was conductor. Trial in the Superior Court, before Hardy, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Tort, to recover the penalty imposed by Pub. Sts. c. 100, § 24, for selling or giving intoxicating liquors to a minor. The defendant demurred to the declaration, and the demurrer was overruled by Wardwell, J.</p> <p>The jury returned a verdict for the plaintiff, and the defendant, being aggrieved by the exclusion of certain evidence and the refusal to give certain instructions, alleged exceptions. The grounds of demurrer and the material facts are stated in the opinion.</p>

Tort, by the assignees in insolvency of Fred A. Houdlette, for the conversion of a quantity of iron.

<p>'Personal Injuries — Falling Fence — Liability of Owners of Dioision Fence.</p> <p>If as between two adjoining owners the duty to maintain a partition fence is upon one of them exclusively, the other owner is not liable to a third person for a personal injury caused by the fall of the fence.</p> <p>If the owner of a partition fence uses the care of a prudent man in maintaining it, he is not liable to a third person for a personal injury caused by its fall.</p>

<p>Two ACTIONS OF CONTRACT, one for the price of horses alleged to have been sold by the plaintiff to the defendant, and the other a cross action for the board of the same horses from the time of the alleged sale and delivery to the date of the writ. The writ in the second case was dated November 25, 1896. The answer in the first case was a general denial.</p> <p>The cases were tried together in the Superior Court, before Braley, J., and a verdict was returned for Allin in each case. Whittemore alleged exceptions. The material facts appear in the opinion, and in a note by the reporter.</p>

<p>Tort, for an assault and battery. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Contract, to recover the amount of six assessments upon the defendant as a policy holder in the plaintiff corporation. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, in substance as follows.</p> <p>The plaintiff was a mutual fire insurance company organized under the laws of this Commonwealth, and was authorized by statute to make insurance upon property located in any part of the United States or Canada. It issued six policies of insuranee to the defendant on property situated in Maryland, in which State the plaintiff was not authorized to do business under its laws. On March 19, 1895, the plaintiff was enjoined by this court from doing further business, and subsequently a receiver was appointed. On July 19, 1895, a petition was filed in this court by the president of the plaintiff, praying that the court would examine an assessment previously voted by the directors *of the company and matters connected therewith, and would ratify the assessment with such amendments as might be necessary. Upon this petition an order of notice was issued, returnable in three weeks, and published as therein directed. At the hearing upon the petition on August 19, 1895, the application was referred to an auditor, who was directed to appoint a time and place to hear all parties in the matter of the assessment, and to give personal notice thereof in writing to the insurance commissioner, and, through the post office or by publication, as he deemed practicable, to all parties liable to such assessment, and to report upon the correctness of the assessment and all matters connected therewith. Thereupon due notice was given by the auditor as directed, hearings were had, and a report was made by him. Whereupon, after due notice to all parties in interest, giving them an opportunity to be heard, this court, by a decree of March 5, 1896, among other things, ordered an assessment of $250,000, and directed the officers of the company to vote the same in legal form, which the directors proceeded to do.</p> <p>Afterwards, on March 25, 1896, the court confirmed the assessment of $250,000, which was subsequently made up in detail against the different policy holders of the company subject to assessment; and by a decree dated December 9, 1896, the assessment was ratified, confirmed, and established as computed and made up upon the persons and for the amounts which appeared in the schedules annexed to the decree. By such schedules it appeared that the defendant was assessed, on six different policies, the total sum of $474.05. The decrees ordering and confirming the assessment were made after the usual publication of notices as directed by the court. Written notices of the assessments were duly sent to the defendant on July 2, 1896, demanding payment thereof. The office of the plaintiff was situated in Boston, where it did its business, and it had no office or agent in the State of Maryland, and none outside of Massachusetts, except in the State of North Carolina, unless it otherwise appears from the agreed facts. The insurance was effected through Tate and Cornwall, insurance brokers of New York City. The plaintiff was not admitted to do business in the State of New York. Blake and Taylor were the managers of the plaintiff, receiving for their services a certain per cent of the gross receipts, out of which they paid all expenses.</p> <p>The defendant requested Glover and Company, insurance brokers of New York, to obtain for it insurance on the property described in the policies. Glover and Company applied in turn to Tate and Cornwall, requesting them to obtain such insurance for the defendant in the plaintiff company, and as a result of the requests Tate and Cornwall, with the knowledge of Glover and Company, sent applications for insurance by mail to Blake and Taylor, directed to the office in Boston, these applications stating the amount of insurance desired, the rates at which the risks were to be written if accepted, the premiums to be paid, the dates upon which the risks were to begin, and the time for which they were to continue. These applications also contained descriptions of the property upon which the insurance was to be placed, which applications were received in Boston by Blake and Taylor, acted upon and accepted by the plaintiff, whereupon policies were written in accordance with the terms set forth in the applications, dated and executed by the proper officers of the company in Boston, and transmitted by mail to Tate and Cornwall in New York.</p> <p>The policies contained the following provision: “ In consideration of dollars, to them paid by the insured, hereinafter named, the receipt whereof is hereby acknowledged, and the agreement by the insured, as a condition of this policy, that the said insured, or their legal representatives, shall pay in addition to said cash premium all such sums as may be assessed by the directors of said company, pursuant to the laws of the Commonwealth of Massachusetts, but not in any event to exceed three times the amount of said cash premium, do insure the William Knabe & Co. Manufacturing Company, of Baltimore City, and their legal representatives, against loss or damage by fire, to the amount of ' dollars ”; which provision was uniform in all policies issued by the plaintiff; and in one policy was stamped the following additional provision : “ It is a condition of this policy that, if at the time of loss the' assured shall hold any policy of this or any other company on the property hereby insured subject to conditions of co-insurance or average, this company’s liability herein shall be limited thereby to the same extent as though such clause were contained in this policy.” This last provision is one that is frequently, but not uniformly, inserted in insurance policies.</p> <p>The broker knew at the time the applications were sent what would be the uniform provisions in the policies not named in the applications, and also knew that the additional provision inserted in one of the policies as above quoted was frequently inserted in policies. The applications were signed by Tate and Cornwall, the signature being impressed with a rubber stamp, and being in the following form: “ Tate & Cornwall, 59 William St., New York.”</p> <p>At the time the policies were made out the premiums were charged to Tate and Cornwall, with whom Blake and Taylor had an open account, and Tate and Cornwall were accustomed at intervals to send checks to Blake and Taylor in payment of balances due and to receive such checks from them. Tate and Cornwall received the policies from the mail in New York and delivered them to Glover and Company, who sent them from New York by mail to the defendant in Baltimore. The first policy was issued on January 1,1894; the second and third were issued on March 27, and the last three on March 28,1894.</p> <p>The defendant, some time after receiving the policies, sent checks to Glover and Company in payment of the premiums, and Glover and Company subsequently sent to Tate and Cornwall checks payable to the order of the plaintiff in payment of the pre.miums. These checks were transmitted by mail from New York to Blake and Taylor in Boston, and received by the latter, the one in the payment of the premium on the first policy on February 28, 1894, the one in payment of premiums on the second and third policies on June 29,1894, and the one in payment of premiums on the last three policies on June 30, 1894. Blake and Taylor paid Tate and Cornwall for their services in obtaining and forwarding such applications a commission on the premiums of all policies issued by the plaintiff on the applications, the commissions allowed such brokers being taken out of the commission allowed them by the plaintiff in compensation for their services, and Glover and Company were paid for their services by the defendant.</p> <p>The defendant is a corporation organized under the laws of Maryland, having its usual place of business in Baltimore in that State, but having property in this Commonwealth.</p>

<p>Tort, for personal injuries sustained by the plaintiff while in the employ of the defendant. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The material facts appear in the opinion.</p>

<p>Contract, against the surety upon a poor debtor’s recognizance. At the trial in the Superior Court, before Sherman, J., it was agreed that the plaintiff recovered judgment against one Hayes on March 2,1896; that, execution having issued thereon, Hayes was cited to appear at the Municipal Court of Boston at the poor debtor session thereof, and was defaulted and arrested by the order of the court, and he thereupon entered into a recognizance with the defendant as his surety, which is the recognizance declared upon; that Hayes applied to take the oath for the relief of poor debtors at said Municipal Court on March 26, 1897; that a hearing was continued from time to time; that upon May 21, 1897, at 10 a. m., he was defaulted; that he filed his petition in the Court of Insolvency for the county of Suffolk on April 8, 1897, and that the warrant was issued returnable on April 30, 1897; that the warrant was returned on that day without service, and a new warrant was issued returnable on May 14, 1897; that Hayes filed his schedule of property and creditors on April 28, 1897; that the first publication of the new warrant was on May 6, 1897; that the first meeting of the creditors was held on May 14, 1897, when the plaintiff proved the judgment against Hayes, and that the same was allowed; that the second meeting was' held on July 2, 1897, and the third meeting had been ordered for November 12, 1897, and the question uf k:s discharge in insolvency had not yet been reached.</p> <p>The judge directed the jury to return a verdict for the plaintiff ; and the defendant alleged exceptions.</p>

<p>Contract — Liability of Owner of Fishing Vessel for Supplies — Statute of Frauds.</p> <p>At the trial of an action of contract against one of two owners of a vessel to recover for supplies furnished for a fishing voyage, there was evidence that the vessel was sailed on a certain lay, by which the master received a commission from the proceeds of the fish caught, after which, subject to certain deductions known as great generals, the balance of the proceeds was divided between the owners and the crew in a fixed proportion ; that certain articles selected by the defendant and the captain were bought by the defendant, and others were subsequently bought by the captain in the absence of the defendant; that some payments on account were made by the captain, and others by the manager for the owners; that the defendant urged the plaintiff to get his money out of the captain, and said, “ Every dollar that you get out of that captain saves me one ”; that according to the understanding between the parties all the articles, with one or two exceptions which were charged to the vessel and owners, were charged to the great generals ; and that the plaintiff looked to the owners for his pay. Held, that under that lay the master was not owner pro hac vice. Held, also, that there was evidence that the defendant made himself a debtor for the goods, and that his oral promise to pay therefor was not within the statute of frauds.</p>

Contract, by the surviving partner of the firm of Hayden and Thayer, to recover a balance alleged to be due from the defendant, as administrator of the estate of his deceased partner, on the settlement of the firm’s affairs.

<p>Tort, against a deputy sheriff, for making a false return upon an execution against one Underwood and others, in favor of one Kellogg. At the trial in the Superior Court, before Braley, J., it appeared that Underwood was arrested by the defendant on the execution and the plaintiff recognized for his appearance, and that Underwood defaulted, and a judgment was obtained against the plaintiff upon the recognizance. The defendant requested the judge to rule that, upon all the evidence, the plaintiff was not entitled to recover; the judge refused so to rule, and, the jury having returned a verdict for the plaintiff, reported the case for the determination of this court. If the ruling was right, judgment was to be entered upon the verdict; otherwise, judgment was to be entered for the defendant. The facts appear in the opinion.</p>

<p>Contract, upon an account annexed, for labor and’ materials furnished in the erection and repair of buildings on land of the defendant in Cambridge. Writ dated January 22,1895. Trial in the Superior Court, without a jury, before Richardson, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The case was referred to an auditor, who found and reported the following facts.</p> <p>The plaintiff is a carpenter and builder, and has been engaged in that business from thirty-five to forty years. He was employed by one Sortwell in Cambridge for fifteen or twenty years in building houses for him, and doing his work in connection with the distillery business, which he carried on in the location of the defendant company, and to which company he sold the property now owned by it. After this conveyance the defendant determined to enlarge its works and. increase its business, and it was in the enlargement of the plant by repairs and by the erection of new buildings that the labor was performed and the materials furnished which are the subject of this action. The work was performed and the materials furnished between October, 1893, and January, 1895. The account annexed to the original declaration commenced in October, 1894, and contained debit items down to and including January, 1895, but no credit items, and claimed an indebtedness by the defendant to the plaintiff of #17,979.54.</p> <p>Early in the hearing it appeared that there had been labor and materials furnished by the plaintiff to the defendant running over a period of about one year prior to the date of the first item in his original account annexed, and that large sums of money, aggregating more than #50,000, had been paid thereon; and it was discovered that no just accounting could be had between the parties without going back to the examination of the work, and taking the amount of all the labor performed and materials furnished, and also an account of all moneys paid by the defendant to the plaintiff théreon ; and it was agreed by the parties that the plaintiff should amend his declaration so as to cover all items from the beginning of the work, on or about November 1, 1898. Thereupon the plaintiff filed an amended account annexed, covering the different items of labor and materials from November 1, 1893, and embracing 1,857 items, but without any items of credit.</p> <p>The case for the plaintiff was opened, and the testimony proceeded through several hearings upon the theory that the plaintiff was to do this work and render a monthly account to the defendant for merchandise purchased and labor performed at the cost price, the plaintiff to receive pay by the day; and the items in the account annexed, so far as they were proved item by item, were proved upon that theory.</p> <p>After hearings upon the first amended declaration it was discovered that the charges made for labor and .materials in such amended declaration were not made upon that basis, but were made upon the basis of an ordinary jobber’s contract; that is, the plaintiff had charged the profit upon the lumber and materials that he had purchased, and also a profit on the labor furnished by him. It then appeared that the original understanding and contract, so far as there was any between the parties, was that the work should be done on that basis. It appeared subsequently that that understanding or contract was modified verbally between one Sibley, representing the defendant, and the plaintiff, and that such modified contract should date from the beginning of the work. “ This modification left the contract in substance and legal effect that the plaintiff, under the directions of Mr. Sibley and an architect whom the defendant had employed (Mr. Breden), should go ahead and make such repairs and erections as they should order at cost price, and that he, the plaintiff, should have a commission upon the expenditures for his services. This commission was left indefinite, and never agreed upon in terms, except that the plaintiff, after several conversations with Mr. Sibley, told him that he, the plaintiff, thought that ten per cent upon the expenditures would be a fair compensation. To this Mr. Sibley neither assented nor dissented, and thereafter the plaintiff proceeded with his work with no other or further understanding as to compensation, and' it is upon such a contract between the parties that this case was finally presented to me.”</p> <p>This required a recasting and reforming of the entire account, which was done, resulting in a second amended account annexed. Hearings were had upon this account, until it was discovered that a large number of items covering the whole period, notably labor items, were still charged upon a different basis; and a third amendment, called Schedule A, was thereupon made. Further hearings were had, and it was discovered that the plaintiff bad not given the defendant the benefit of discounts allowed on the purchase of materials, and that there were a large number of unexplained charges not in conformity with the agreement. By the auditor’s direction a fourth amendment, called Schedule B, was thereupon prepared, showing all such discounts and charges. The case then proceeded for four days, when the auditor found the account so incorrect that he suspended the hearings until all the accounts should be re-examined and restated by competent persons. The plaintiff’s son, who had kept the books, and the stenographer, who had reported the evidence, performed this work between March 20 and November 10, 1896, and as a result a revision of the items in the second amended declaration was presented, giving a classification of the accounts.</p> <p>Subsequently it was discovered that certain items for work and materials included in the second amended declaration were furnished on and after the date of the writ, and it was agreed that a schedule of those items should be made, which was done. These items were disallowed by the auditor.</p> <p>Afterwards cross-examination elicited the fact that a large part of the materials for which the plaintiff seeks to recover had not been paid for by the plaintiff prior to the date of his writ, and it was agreed that a schedule of those items should be prepared, which was done, and the same was presented to the auditor and admitted in evidence. These items amounted to $9,669.10, and were allowed. This was called Schedule C.</p> <p>The plaintiff was familiar with Sortwell’s business, and to a certain extent with the buildings necessary for the transaction of such business. He was found there by the defendant when it purchased the property, and so far as appears was the only person who was well acquainted with the property, and to a certain extent with the needs of the business. He retained his position, and when the defendant determined to enlarge its plant he was given such instructions as would imply to his mind that he was to continue practically the same as he had been doing in the employ of Sortwell; at least, so he understood it. When the change in the form of the employment was made, a reason given was that Sibley did not like the appearance of a large amount of bills coming from the superintendent of the company in his name. It was distinctly stated that the work was to be done at cost by the plaintiff. The plaintiff understood from that that he was to charge the ordinary contractor’s profit upon the labor of his men, and the cost to him of his merchandise. He understood also that he was to hire carpenters and laborers, and purchase the necessary materials and become responsible for them, the same as under the former arrangement.</p> <p>“ From all the evidence I find that this contract was to make such repairs and erect such buildings as the defendant or its agents, duly authorized, should instruct the plaintiff to prepare and erect; that he should employ labor and furnish the materials at cost, and that this means that he should charge no profit thereon, and that he should receive some suitable sum for superintendence of this work.</p> <p>“ From all the testimony I find that it was understood between the parties that he should receive ten per cent of the amount expended for his services as superintendent in the repair and erection of the works, and that this sum included bookkeeping, whether done by himself or by any other person.”</p> <p>The auditor, after making certain deductions for errors and overcharges, found that the plaintiff was entitled to recover $14,381.02, with interest from the date of the writ.</p> <p>In addition to the facts stated in the auditor’s report, the following facts appeared.</p> <p>From bills introduced in evidence, and the schedules annexed to the auditor’s report, it appeared that the bills rendered under date of September 1, 1894, were a revised statement of accounts covering all transactions prior to that date. The accounts rendered thereafter by the plaintiff to the defendant on or about the first day of each month covered the transactions during the preceding month. These accounts, so far as they covered the expenditures for labor or articles from the plaintiff’s own shop, and similar purchases of merchandise, were rendered in the name of the plaintiff to the defendant. So far as these bills covered merchandise furnished in large quantities, as lumber or bricks, the bills were rendered to the defendant in the name of the dealer who furnished such materials.</p> <p>At the time of the commencement of this action, no bill whatever had been rendered for labor or materials furnished after December 31,1894. It also appeared that bills for all the aforesaid merchandise were rendered to the plaintiff, with a few exceptions, mostly of small amount. The first account rendered to the defendant for the plaintiff’s services was rendered after the date of the writ.</p> <p>The original declaration corresponded with the accounts rendered by the plaintiff to the defendant, covering items from October, 1894, to December 31, 1894. The first amended declaration corresponded with the revised accounts rendered by the plaintiff from September 1, 1894, after the modification of the contract, and those subsequently rendered to the defendant from time to time up to January 1, 1895. The first amended declaration differed from the original declaration only in that it covered also items from the beginning up to the date of the first item in the original declaration.--</p> <p>It appeared that the account, so far as rendered prior to the commencement of the suit, and as set forth in the original and first amended declarations, was not a correct account of the labor and materials furnished the defendant, and that the extensive accounting undertaken before the master, and at his suggestion, by the accountants, was necessary to ascertain the actual cost of the labor and materials furnished to the defendant by and through the plaintiff.</p> <p>The second amended declaration, and the several schedules amendatory thereof, were designed to present the corrections of the original bills so as to conform with the facts as actually found; but the second amended declaration and the amendatory schedules, like the first amended declaration, were found to state incorrectly, in very many particulars, the cost of labor and materials.</p> <p>Upon the facts found by the auditor, and the additional facts appearing at the trial as above stated, the defendant requested the judge to rule as follows:</p> <p>“1. The action cannot be maintained, having been brought prematurely.</p> <p>“ 2. The plaintiff cannot recover on the items of merchandise which were not paid for (if at all) until after the date of the writ, appearing by Schedule C, revising second amended declaration and aggregating $9,669.10.</p> <p>“ 3. If the plaintiff could otherwise recover on the items contained in Schedule C, revising second amended declaration, aggregating $9,669.10, they cannot be recovered under this declaration, which contains only a count upon an account annexed.</p> <p>“ 4. The plaintiff cannot recover for his services in this action, because it was commenced before the work had been completed or abandoned, and also because the plaintiff had not prior to the date of the writ rendered a proper account, and made a demand for payment on account of services.</p> <p>“ 5. The plaintiff cannot recover for his own services in this action, because he did not prior to the date of the writ render a proper account of the money received from the defendant, and of the indebtedness incurred.</p> <p>“6. Even if the court should find that the compensation agreed to be paid to the plaintiff was ten per cent, he cannot recover the full amount, because it appears from the auditor’s report and the undisputed testimony that it was a part of the duty assumed by the plaintiff to keep and render proper accounts, and this had not been done prior to the accounting before the master.</p> <p>“ 7. The plaintiff cannot recover interest on the amount found to be due from the date of the writ, because, as appears by the auditor’s report and the undisputed testimony, it was a part of the duty assumed by the plaintiff to keep and render proper accounts, and the plaintiff had not rendered any proper account showing moneys due, and the extensive accounting before the auditor was necessary in order to ascertain the amounts actually due the plaintiff.”</p> <p>The judge declined to give any of the rulings requested, and ruled that the plaintiff could not recover for any services rendered or goods sold after the date of the writ, and found for the plaintiff in the sum of $16,684.28, being the amount found by the auditor, and interest thereon to the date of the finding.</p> <p>The defendant alleged exceptions.</p>

<p>Municipal Court of Boston — Petition to vacate Judgment—Writ of Review — Appeal—Practice.</p> <p>All the considerations in favor of holding that an appeal may be taken from a judgment of the Municipal Court of Boston dismissing a petition to have a judgment vacated under Sts. 1893, c. 396, and 1894, c. 431, are equally applicable to cases under St. 1895, c. 234, relative to vacating judgments and writs of and petitions for review.</p> <p>On a petition, on appeal, from the Municipal Court of Boston to have a judgment vacated, it is error for the Superior Court to order a writ of review to be issued instead of ordering the judgment to be vacated.</p>

<p> Mechanic's Lien for Labor in Erection of Schoolhouse. </p> <p>The general words of Pub. Sts. o. 191, § 1, do not give a lien for labor upon a schoolhouse held by a town for public school purposes.</p>

Two actions OF tort, for personal injuries. Trial in the Superior Court, before Graskill, J., who, at the defendant’s request, directed verdicts in each case for the defendant; and the plaintiffs alleged exceptions, which appear in the opinion.

<p>Two actions of Tort, the first being for loss of the services and society of the plaintiff's wife, Sarah Fox, and for expenses incurred by him, by reason of her falling into a trench in Everett Avenue in the defendant city; and the second being for personal injuries sustained by her at the time of such accident, which resulted in her death. The cases were tried together in the Superior Court, before Hardy, J.</p> <p>The jury returned a verdict for the plaintiff in each case; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by riding a bicycle into a train. Trial in the Superior Court before Blodgett, J., who, at the close of the evidence, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Guardian and Ward — Writ of Error — Service of Writ— Guardian ad Litem.</p> <p>A petition for a writ of error to reverse a judgment against a ward should be brought in the name of the ward, by his guardian or next friend.</p> <p>There is no statute which permits the service of a writ against an insane person who is under guardianship to be made upon the guardian instead of upon the ward.</p> <p>The practice is to require the same service upon infants, or upon persons under guardianship or of unsound mind, as upon other defendants, and then to give notice of the proceedings to the guardian, if there be any, and he does not appear without notice ; and if the guardian does not appear and defend the action in the name of his ward, or if there is no guardian, a guardian ad litem should be appointed for that purpose.</p> <p>The practice of appointing guardians ad litem prevails in this Commonwealth in actions at law as well as in suits in equity.</p>

<p>Tort, for deceit. Trial in the Superior Court, before Lilley, J., who, at the conclusion of the evidence, ruled, at the request of the defendant, that the action could not be maintained, and directed the jury to return a verdict for the defendant, and the plaintiff having alleged exceptions, reported the case for the determination of this court. If the ruling was right, judgment was to be entered on the verdict; otherwise, the case was to stand for trial. The facts appear in the opinion.</p>

<p>Bill in Equity to reach and apply Corpus of Trust Estate — Power of Appointment.</p> <p>Under an indenture which provides that A., having conveyed his property to trustees, is to have the power of disposal of the estate by will, and, in default of appointment by will, the property is to go to his heirs, and that the trustees may retain as principal or pay over to him, discharged of all trust, the proceeds of any real estate which they may seli, A. has no interest in the corpus of the estate which can be reached by a creditor in equity under the Pub. Sts. c. 151, § 2, cl. 11, as amended by the" St. of 1884, c. 285.</p>

<p>Bill in equity, praying that, by reason of her inchoate right of dower, a portion of the proceeds received from land taken by the right of eminent domain be set apart for the plaintiff’s benefit in case she should survive her husband. David Flynn, the husband, and William J. Flynn, the other defendant, to whom it was alleged David had assigned his claim for damages by reason of the taking, demurred to the bill for want of equity. Hearing before Lathrop, J., who reserved the bill and the demurrers for the consideration of the full court. If the demurrers were sustained, the bill was to be dismissed, with costs ; otherwise, the defendants were to have leave to answer. The facts appear in the opinion.</p>

<p>Bill in equity, filed April 2, 1896, against James F. Brown, administrator of the estate of James W. Brown, and the Walker Stetson Sawyer Company, a corporation, to compel the specific performance of a written agreement. Hearing before Morton, J., who ordered a decree for the plaintiffs; and the defendant Brown appealed to the full court. The facts appear in the opinion.</p>

<p>Bill in equity, filed November 4, 1896, by the trustee under the will of Samuel Cutter, to obtain the instructions of the court as to the construction of the will. The following are the material portions of the will:</p> <p>“ After the payment of my just debts and funeral expenses and expenses of administration, I give and bequeath to my wife,</p> <p>Charlotte Cutter, all the household furniture which may be in my dwelling-house at the time of my decease, and my wearing apparel.</p> <p>“ I also give, bequeath, and devise to my said wife Charlotte the use and improvement of all my estate, real and personal, during her life.</p> <p>“ Item. At the decease of my said wife, I give, bequeath, and devise the use and improvement of all my estate, real and personal, to my children, viz. Charlotte P. Hall, wife of Osborn B. Hall, Samuel W. Cutter, Louisa M. Carter, wife of John H. Carter, Sarah Ann Hunnewell, wife of Edwin Hunnewell, Benjamin L. Cutter, Theodore A. Cutter, Henry E. Cutter, and William S. Cutter; and on the decease of either of the above named children leaving a child or childi*en, the proportion of such deceased child’s income shall be given to said child or children, and on the decease of either of the above named children leaving a widow but no child, the proportion of such deceased child’s income shall be given to said widow while she remains the widow of such deceased child, and on the decease of either of the above named children leaving no lawful issue or widow, the proportion of such deceased child’s income shall be given to the surviving brothers and sisters in equal propertions, and on the decease of all the above named children I give, bequeath, and devise all my estate, real and personal, to my grandchildren who may be then living, to be equally divided between them:</p> <p>“ Provided, however, that the proportion to be paid to any widow of a deceased son shall continue to be paid from the income of the whole estate, each share contributing its equal part so long as she or they remain such widow.”</p> <p>The testator appointed an executor “ to carry out the provisions of this will,” giving him power to sell any portion of the real estate: “ such sale of real estate is to be deemed by my said executor to be for the benefit of my family, and consent to such sale must be first given in writing by my said wife if living and by a majority of my before named children who may be living at the time of such sale.” The executor is further directed to “ invest the proceeds of such sale in some safe manner, or in other real estate for the benefit of my family.”</p> <p>The bill alleged that the testator died in 1864, leaving a widow, since deceased, and as his only heirs and next of kin Charlotte P. Hall, who has since died leaving no issue, Samuel W. Cutter, now deceased, Louisa M. Carter, Sarah Ann Hunnewell, who has since died leaving as her only issue a daughter, Charlotte Wellington, Benjamin L. Cutter, who has since died leaving no issue, Theodore A. Cutter, Henry E. Cutter, and William S. Cutter; that Samuel W. Cutter had died leaving a son, Samuel Cutter, and a daughter, now Mary E. McMahon; that the last named Samuel Cutter, being a grandson of the testator, had died leaving a widow, Maud Estelle Cutter, and three minor children, viz. the said Frank Revenue Cutter, Mary Cutter, and Samuel Wheelock Cutter, said last named minor children being great-grandchildren of the testator; that it was contended in behalf of the last named great-grandchildren that they were entitled to receive the share of the income of the trust estate to which their father, Samuel Cutter, would be entitled if living ; that it was also contended that such share should be paid to the children of the testator now living; and that there was a possibility that said share should be paid to Mary E. McMahon, and that Maud Estelle Cutter might make some claim thereto.</p> <p>A decree was entered by a single justice “ that the respondent Mary E. McMahon is entitled to receive the whole of that share in the income of the trust estate to which her father, Samuel W. Cutter, would be entitled were he living, such share being now one sixth of the entire income of the trust estate; that it is the duty of the trustee to pay over to said Mary E. McMahon one sixth part of the annual income of the trust estate; that Samuel W. Cutter, May Cutter, and Frank R. Cutter, minor children of Samuel Cutter, deceased, are not entitled to receive any part of the income of the trust estate ” ; and “ that the sum of fifty dollars be allowed to counsel for Mary E. McMahon, and the sum of fifty dollars to counsel for Arthur H. Brooks, guardian ad litem for Samuel W. Cutter, May Cutter, and Frank R. Cutter, minor children, as counsel fees and expenses, said sums to be paid to them by the petitioner out of the funds of the estate in his hands.”</p> <p>The minor respondents, Frank Revenue Cutter, May Cutter, and Samuel Wheelock Cutter, by their guardian ad litem, Arthur H. Brooks, appealed to the full court.</p>

Bill IN equity, filed February 5, 1897, to compel the defendant to supply the plaintiff with water, and to restrain it from preventing him from securing a suitable supply thereof.

<p>Petition, filed May 3,1897, against Samuel Dalton, Adjutant General in charge of the records, and' the board of examiners under § 53 of c. 367 of the Acts of 1893, entitled “ An Act concerning the volunteer militia,” for a writ of certiorari to quash the proceedings of that board in discharging the petitioner from his position as a captain in Company F of the Sixth Regiment of the Massachusetts Volunteer Militia. Hearing before Holmes, J., who ruled that the petitioner was subject to examination, and denied the motion for a further return or answer, and reported the case at the request of the petitioner for the consideration of the full court. The facts appear in the opinion.</p>

<p>Tout, in three counts, by the assignee in insolvency of the estate of A. Anderson and Company, to recover property alleged to have been conveyed to the defendant in fraud of the insolvent law, the third count alleging conversion of the proceeds. Trial in the Superior Court, without a jury, before Hardy, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that the plaintiff was appointed assignee by the Court of Insolvency for the County of Middlesex on May 23, 1895, upon the petition of creditors of the firm of A. Anderson and Company, filed April 10, 1895; and that the assignment covered all property belonging to the firm on April 11, 1895, the date of the first publication of the notice of the filing of the petition to have the firm adjudged insolvent.</p> <p>The defendant testified that, at the time of the transactions in question, he lived in Dover, New Hampshire; that his firm, Charles H. Seavey and Company, were creditors of A. Anderson and Company to the amount of $3,842.02; that there was an instrument of assignment made on February 25,1895, by A. Anderson and Company to him of all of their property, for the benefit of such creditors as should become parties to it; that at the time of the assignment A. Anderson and Company had a place of business in Boston, and one in New Hampshire; that the assignment was completed on the day of its date; that the firm of Charles H. Seavey and Company were the only creditors who signed it on that day; that as soon as he.took the assignment he sent out notices to all the known creditors, enclosing a paper for them to sign in assent thereto; that after the assignment there was a creditors’ meeting held in Boston; that the creditors were notified of that meeting on March 6, 1895; that at that meeting the creditors whose names appear on the original assignment, excepting Charles H. Seavey, signed; that they took further steps to get assents some time in April upon separate requests for signatures, which were signed by the creditors and returned to him; that all of the creditors whom they knew of were served with a notice of the first meeting; that all of the assents, although they came back at different times, were practically returned in the same week; that when he made up the lists of the creditors who had assented to the assignment, he did so by taking their names from these papers; that he understood on April 4 that some creditors were agitating the question of putting the firm into insolvency; that at the first meeting there was an investigating committee appointed by the creditors, which reported to the creditors on March 28; that as a matter of fact at that, second meeting insolvency was talked of; that the committee made an elaborate report of the condition of things at that meeting, at which he was present; that he did not know that he heard the question of putting them into insolvency agitated at that time; that he was present in Massachusetts when insolvency proceedings were instituted; that hearings were had from time to time; that he was present at the hearings which were held in reference to insolvency proceedings ; that after the messenger was appointed he came to the witness and told him that he was to go ahead and close matters up and turn the money over to the assignee, and that the messenger would not interfere; that he went ahead and closed matters up without any interference from the messenger or any one; that the assignment to him covered not only the stock on hand, but the book accounts that were then due to the firm; that he collected those accounts; that he worked up the lumber on hand by the creditors’ order; that at the first meeting he was ordered by the creditors to go on with the business, and buy lumber and continue to manufacture; that he did go on and buy additional lumber, and kept the business going about two months; that at the second meeting of creditors he reported that he had not made money to warrant the continuing of the business, and recommended it tq be stopped; that there was a little balance in his favor; that the business of A. Anderson and Company was the manufacture of boxes; that the goods were all sold to Massachusetts parties; that he received a demand at some time to pay over the money in his hands; that he did not know the exact date; that it was not immediately after the appointment of the assignee; that he was allowed to continue this business and wind it up; that the messenger was appointed on May 1, and the order for the assignee was not until May 21; that, as he recollected, it was within a week or two after May 21 that demand was made on him; that he did not pay over; that he continued the business of Anderson and Company in Boston ; and that the books were kept at the Boston office.</p> <p>On cross-examination, the defendant testified that, before the time of the demand for the money by the assignee upon him, he was served with a trustee writ issuing out of the Supreme Court of New Hampshire on February 27, 1895, in an action brought by Samuel S. Felker and Henry W. Felker against A. Anderson and Company; that before the time of such demand upon him by the assignee, he had transferred the money remaining in his hands after winding up the business to New Hampshire, and it was deposited in a Dover bank; that at the time of the service of the trustee writ all of such funds were in his hands in New Hampshire; that previously to the time of the demand by the assignee in Massachusetts he received notice in regard to proceedings in insolvency brought by A. Anderson and Company in New Hampshire, and the messenger from the Court of Insolvency in New Hampshire made demand on him to turn over the books, and everything else that he had, on May 24, 1895; that at the time of the insolvency proceedings in New Hampshire the insolvents lived in Nashua; and that the petition was a voluntary petition by them. The records of the Insolvency Court in New Hampshire, introduced in evidence, showed that the petition was dated May 21, 1895, was returnable on June 20, 1895, was continued to July 11,1895, and then continued to September 17, 1895, and then continued nisi. The defendant further testified that all of the money was deposited in a bank in Dover, New Hampshire, when the New Hampshire messenger in insolvency made demand upon him; that the money was also in the same bank at the time when the writ of Felker Brothers was served upon him; and that the bank account was kept in his name as trustee.</p> <p>The defendant, in answer to interrogatories by the plaintiff, stated that, at the time of the making of the assignment to him, he did not pay to the firm of A. Anderson and Company any consideration therefor; that the firm was at the time insolvent, and he knew that it was insolvent; that the instrument was made for the purpose of collecting and dividing the property of the firm among the creditors who should become parties to it outside of the Insolvency Court; that there was a majority in number and amount of the creditors who assented in writing to the assignment; that the larger part of the property when it came into his possession was situated in Nashua, New Hampshire, and consisted of unmanufactured lumber; that, at the time of the execution of the assignment, the firm had an office, where it kept its books and conducted its correspondence and took orders for manufactured goods, in Boston, and lie took possession of the office and books, and continued the business under the direction of the majority of the creditors for the term of about two months; that the firm, at the time of the execution of the instrument, had a manufactory in Nashua, and a stock of lumber there, manufactured, in process of manufacture, and unmanufactured ; that the property in Nashua came into his possession after the execution of the instrument, and there were about two hundred thousand feet of lumber, a large part of which, under the direction of the creditors, he manufactured and sold; that the property was sold principally to persons, firms, and "corporations doing business in Boston and vicinity; and he gave a detailed statement of the amounts received by him and paid out in due course of his instructions from the creditors and under the instrument of assignment.</p> <p>He further answered that, at the time of the insolvency in this Commonwealth, he had disposed of the property that was received under the assignment by the firm, had collected the amounts for the sale of the property, and had paid out sums of money for expenses in the manufacture of the articles and putting them into salable shape under the direction of the creditors, and at that time held a balance in money'in his hands which was not distributed, and which had not yet been distributed ; that the messenger of the Insolvency Court took formal possession, and notified him that he could go on and do business as he had been doing it, and collect any money outstanding; that a demand was made upon him by the plaintiff, as assignee, for the money that remained in his hands, but it had not been turned over, for the reason that, prior to the time of the appointment of the assignee, the funds which he held were trusteed by writs brought in New Hampshire against the insolvent firm; and for the further reason that all of the balance remaining in his hands was in New Hampshire at the date of the insolvency proceedings in Massachusetts, and the cash, after the time of its collection, all of which was done before the time of the insolvency proceedings in Massachusetts, had not been within this State, and thereafter the firm of A. Anderson and Company filed a voluntary petition praying that they should be declared insolvent in New Hampshire; and that a messenger was appointed there to take possession of the goods, effects, and credits of the insolvents in that State.</p> <p>A schedule, commencing on February 26,1895, and ending on June 12, 1895, most of the receipts being prior to May 1, 1895, showed a balance in the hands of the defendant of $1,332.36. In addition to payments to his counsel, the account showed payments to the defendant for services of $600, and for expenses of $200, which the plaintiff contended were excessive in amount, if the defendant was entitled to retain anything for these items.</p> <p>At the conclusion of the evidence, the defendant asked the judge to rule that the plaintiff could not recover. The judge refused so to rule; and found for the plaintiff upon the first and third counts in the sum of $1,687.13, and for the defendant on the second count. The defendant alleged exceptions.</p>

Contract, upon a promissory note. The case was submitted to the Superior Court, and, after judgment for the defendant rendered by Wardwell, J., to this court on appeal, upon agreed facts, in substance as follows. The defendant was the maker and the plaintiff the payee of the note, which was for one hundred dollars, and was dated December 6, 1870.

Contract, upon a policy of insurance against loss by fire on premises situated in Lynn.

Contract, upon a written agreement alleged to have been made by the defendant with the plaintiff.

<p>Contract, to recover a commission as broker for alleged services in giving information to the defendant which enabled it to find a customer for its goods. At the trial in the Superior Court, before Hammond, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The material facts appear in the opinion.</p>

<p>Insurance — Notice of Loss.</p> <p>Where a policy of insurance against loss from liability to employees injured in the course of their employment contains a proviso that the assured shall give the company “immediate written notice” of the happening of an accident within its terms, a notice of such accident given twenty-six days after it occurred is not a compliance with the condition, and the fact that the intention of the assured to send notice was interrupted by a strike of his employees, which gave him a great deal of trouble, and caused him for the time to forget the notice, is not an excuse for not complying with the condition of the policy.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ, by the alleged negligence of a person in such employ intrusted with and exercising superintendence, and whose sole or principal duty was that of superintendence. Trial in the Superior Court, before Hardy, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that he was a laborer, and in April, 1895, was working for the defendant on a building in Boston; that he had been working on this building for two or three months prior to the accident; that on the day of the accident he was carrying bricks and mortar from the elevator to the masons at work on the walls ; that he had taken a wheelbarrow full of bricks from the elevator, which had brought it up from the basement to the floor on which he was working, had emptied the wheelbarrow and was bringing it back to the elevator ; that one Smith, the defendant’s superintendent, was-standing on the elevator as he approached it; that the plaintiff asked Smith if he had any room on the elevator to put his wheelbarrow; that Smith replied that there- was not much room on the elevator at the time; that he put the wheelbarrow on the elevator, and had one foot on the elevator when it started down with Smith on it, causing him to fall; that nobody spoke to him at that time about the elevator starting; that the usual method of starting the elevator up and down was for any one of the laborers to press the button placed near the elevator well, which rung an electric bell down below for the engineer; that the elevator was operated by steam, and the signal for moving it was to ring the bell once to go down ; that when the foreman or some of the laborers went down on it, they used to ring the bell three times; that when he saw Smith on the elevator there was another man, a laborer, standing beside him; and that the plaintiff did not hear the bell rung or anything said to him.</p> <p>On cross-examination, he testified that he had used this elevator more than twenty times that day before the accident; that he had worked about four weeks on work that required him to use this elevator;. and that during this period he had used it every day.</p> <p>On re-direct examination, the plaintiff testified that he used the elevator wdien he had to send the wheelbarrows down; that he did not go down on the elevator to get the bricks, but that he did go up on the elevator when he went to woific in the morning, also at dinner time and in the evening wdien he got through work; that when he wanted to go up, he used to ask the engineer to carry him up; and that sometimes he used to ring the bell.</p> <p>Patrick Connors, called as a witness by the plaintiff, testified that he was employed by the defendant as a hod carrier at the time of the accident; that just before the accident he had carried a hod off the elevator; that Smith was on the elevator and had been there about two minutes; that the witness rang the bell three times because Smith told him to “ ring the bell and let him off at the second floor”; that Smith was the foreman, and just before the plaintiff fell “ was bossing all of us” ; and' that Smith said nothing except for the .witness to ring him down, and let him off at the first floor.</p> <p>On cross-examination, he testified that he had worked on the building for a month or six weeks; that the plaintiff was working there when he came ; that the plaintiff used the elevator in bringing his wheelbarrows up, as well as every other man; that he used to use the elevator every day, and rang the bell if it was necessary to have the elevator come down or go up; that he had seen him doing that a great many times; that all the men, including the plaintiff and himself, used the elevator to go up on in the morning and down at noon ; that any man who wanted the elevator would ring this bell; that they shouted, when they rang the bell, to stand clear from under; that Smith was standing on the elevator near the witness, and the hods on the elevator were above his head so that Smith could not see through them; that the witness could not see through them, and Smith was standing “ right up to him ”; that Smith told him to ring the bell, and to leave him at the second floor; that he rang the bell once, and then the elevator started; and that if he had rung it again he could have stopped the elevator, but he was excited, and did not ring it because he saw the plaintiff falling.</p> <p>On re-direct examination, the witness testified that after the elevator had started and after he saw the plaintiff fall, or at the moment he saw him do anything, he did not hear Smith say anything.</p> <p>Jeremiah Murphy, called as a witness by the plaintiff, testified that, at the time of the accident, he was employed as a hod carrier by the defendant on the building in question, and was working on the floor underneath the floor which the plaintiff fell from, and saw the plaintiff falling as the elevator descended carrying Smith, whose head was above the hods ; that he very often rang the bell to ring the elevator up and down; that every man on the floor used it to get stock up on the floor; that the signals of the bell were three bells to go down when there was a man on it, and one bell to stop it if it was going down, and two bells when there was nobody on it.</p> <p>On cross-examination, he testified that he used the elevator as he came up in the morning, when he went down at noon, and at five o’clock when he stopped work, and at any other time when he needed it.</p> <p>James Reardon, called as a witness by the plaintiff, testified that, at the time of the accident, he was employed by the defendant as a hod carrier in the building in question; that he was working on the same floor that the plaintiff fell from; that the elevator was generally used to hoist up stock; that the laborers used the elevator in going to and from their work, and also through the day, riding up or down with their loads ; that anybody who was near it would press the bell; that just before the accident, while Smith was standing on the elevator, the witness had put a hod on it and had walked away five or six feet; that he then turned round and saw the plaintiff falling and Smith going down in the elevator, Smith’s back being turned towards the witness and away from the side of the floor on which the witness and the plaintiff had been working; and that neither just before nor at the time of the accident did he hear anything.</p> <p>On cross-examination, he testified that he used the elevator morning, noontime, and evening, and sometimes through the day; that if he was next to the bell, and there was a man on the elevator, the latter would tell him to ring the bell; and that it would not make any difference whether it was Smith on the elevator or anybody else.</p> <p>George H. Smith, called as a witness by the defendant, testified that he was employed as foreman by the defendant at the time of the accident, and laid out the work for the men, saw it was done properly, and kept them in stock; that he was standing in the elevator with his back towards Washington Street, and had his arm on the rack for the hods when it started down at the time of the accident; that he had no conversation with the plaintiff, who approached the elevator from the Washington Street side of the building; that the first thing he knew of the plaintiff’s being near the elevator was when he turned round and saw him falling; that he saw the barrow coming just ahead of the plaintiff, but did not think it was wholly on the elevator; that the elevator stopped within two stories of the bottom, he thought; that as to calling the elevator to send it down, generally the last man who took his hod off did it, but “ when they see it is all unloaded and wants to go down, the man that stands nearest to that button will send it down ”; that as the witness approached the elevator, Connors was standing near the button ; and that the witness jumped on the elevator and said, “ Let her go,” and thereupon Connors rang three bells and shouted, “ Stand clear,” and a minute or so later the elevator started down.</p> <p>On cross-examination, after testifying that he attempted to catch hold of the plaintiff as he fell towards the elevator, he testified, among other things, as follows: “ Q. Why did n’t you call to Connors, ‘Stop this elevator’? A. Well, when that starts, you hardly have time to do anything. I didn’t think, and if I had, it would n’t have made any difference. — Q. And after jumping on and saying, ‘ Let her go,’ and resting with your arm on the rack facing towards Boylston Street, you did not see the plaintiff? A. No, I wasn’t facing that way.— Q. And the elevator immediately started ? A. No, sir; it did not immediately. — Q. How long after the push button ? A. I could n’t tell. It might have been a half a minute or a minute perhaps. I don’t know. — Q. Or it may have been immediately ? A. I hardly think ; no, it could n’t have been, not right off. — Q. Did you say ‘ Let her go,’ before you got on the elevator or after ? A. I said ‘ Let her go ’ before I got on; run right to it and said ‘ Let her go,’ and jumped on. — Q. And after you said ‘ Let her go,’ did you look at Connors ? A. He rang the bell; I know he was there; I saw him.— Q. Was n’t it a rather slow elevator ? A. Yes; slow running.— Q. And when three bells were rung it went down more slowly than it did at other times ? A. Yes. — Q. Then it was going slowly? A. Yes,sir.— Q. Didn’t that give you plenty of time to yell back to Connors as soon as you saw the plaintiff, ‘ Stop ’ ? A. Perhaps it might, but it would n’t have done any good. — Q. You thought it wouldn’t do any good ? A. I did n’t think anything about it. All I thought of was trying to catch this man.”</p> <p>At the conclusion of the evidence, the defendant requested the judge to rule that, upon all the evidence, the plaintiff could not recover; that Smith at the time of his alleged negligence was not exercising superintendence; and that the plaintiff could not recover, even if the jury should find that Smith was negligent. The judge refused so to rule ; and the defendant excepted.</p> <p>The judge instructed the jury, among other things, as follows:</p> <p>“ The principal question for you to consider is whether or not Smith was exercising superintendence at the time of this accident. Now, what is it to exercise superintendence ? Certain acts have to be considered, and if you find that those acts were performed by this superintendent, it would be the duty of the court to instruct you that he would be a superintendent within the meaning of the law. Now, the question is, was Smith engaged in controlling the actions of men who were in the employment of the defendant? [Was he engaged at the time of the accident in exercising control or directing the actions of the employees of the defendant ? You have heard the testimony as to what he was doing just previous to the time that he entered upon the elevator. Was he then controlling the men and ordering them and directing them to do certain things by reason of their employment by the defendant and by reason of his position as superintendent? When he entered upon the elevator, it is for you to consider whether he was then directing the movements of this elevator by reason of his position as a superintendent. If you find from all these facts that he was directing the action of the fellow servants of the plaintiff at that time, and by reason of his acts he so far controlled their action that he set any dangerous machinery in motion, it is an issue on which you are to pass, whether or not he was acting in controlling and directing the movements of this machinery at the time. If you find that he was controlling the action of these fellow employees and directing them, it would be your duty to find that he was exercising an act of superintendence at that time.]</p> <p>“ The next question is whether or not he was acting as a fellow servant of the plaintiff. A man may be a superintendent with reference to controlling men in the same common employment with the plaintiff, and in other instances he may be simply a fellow servant. For instance, if you should find on all the facts here that he simply went on to that elevator the same as any other servant in the employment of the defendant, and simply went on there to ride down the elevator without any act of control on his part, it would be your duty to find that he was acting simply as a fellow servant. For instance, if he should get on there and should not act in any such way as to order the elevator to be moved by reason of the fact that he was acting as superintendent, that would be the act of a fellow servant. It is for you to consider whether when he went down that elevator he was acting as a fellow servant, or whether he did exercise any control which would be that of a superintendent in directing the movements of the elevator. If you find he did not exercise any control as a superintendent in directing its movements, his action would be that of a fellow servant, and you would have to find for the defendant.”</p> <p>The defendant excepted to that portion of the charge enclosed in brackets.</p> <p>The jury returned a verdict for the plaintiff ; and the defendant alleged exceptions.</p>

<p>Petition to quiet Title — Easement.</p> <p>One who has only an easement, and who does not complain that his rights have been interfered with, cannot be compelled, under St. 1893, c. 310, to bring an ' action at law or a suit in equity to try his alleged right.</p>

<p>Guaranty— Construction ■—• Consideration — Notice of Acceptance — Performance — Action.</p> <p>B. executed to A. a guaranty “to the extent of ten thousand dollars, on obligations contracted and to be contracted by C. with A. for a period of three years, with the understanding that A. give C. a permanent credit of at least twenty thousand dollars in leather for the above period of three years.” Before B. signed the guaranty C. exhibited to him an instrument to be signed by A. and told him the contents of it, and told him also that, if he would sign the guaranty, it would keep C. on his feet and keep him going. A. signed the instrument, which was as follows : “ For one dollar and other considerations, I, A., guarantee C. a permanent credit for three years to the amount of twenty thousand dollars in leather, and agree that C. shall not owe A. less than twenty thousand dollars at any time during this period, except at his own option, and C. agrees to buy leather from A. to the extent of at least twenty-five thousand dollars per annum, and A. agrees to sell C. as cheap as any reliable shoe manufacturer. This agreement to be null and void in case C. becomes insolvent during this period.” Held, in an action by A. against B. on the guaranty, that, when the instrument was signed, the consideration for the guaranty was furnished; that the circumstances might be considered in aid of the interpretation; and that the words “ with the understanding” referred to the instrument so signed.</p> <p>If a guaranty by B. to A. of obligations to an amount named to be contracted by C. with A. for a certain period is executed on the understanding that, if it is signed, A. will sign an instrument, which is exhibited to B., agreeing to give C. a credit for that period, it is not necessary that B. should be notified of the acceptance of the guaranty by A.</p> <p>It is no objection to an action upon a guaranty to a certain amount “ on obligations contracted and to be contracted ” by C. with A., with the understanding that A. give C.-a credit of a sum named in merchandise, that, although C. owes A. more than that sum, only a portion of it is in the form of a debt for merchandise, and the rest is in the form of notes, which were given for merchandise.</p> <p>A guaranty executed by B. to A. to a certain amount on obligations to be contracted by 0. with A. “ for a period of three years,” with the understanding that A. give C. a credit of a sum named “ for the above period of three years,” may be sued upon before the expiration of the three years.</p>

<p>Bill in equity, by the trustees under the will of John W. Trull, to obtain the instructions of the court as to its construction. After preliminary provisions he gave the residue in trust:</p> <p>“ To receive and collect the income and produce thereof, and, after deducting all needful and proper costs, charges, and expenses, to pay the residue of said income from time to time, into the proper hand, or upon the written order of my said daughter, Mrs. Elizabeth Eldredge, for her sole and separate use, free from the control or interference of any husband, or liability for his debts or engagements.</p> <p>“ At and after the decease of my said daughter, I give the said trust premises to her issue, equally to be divided between and among them, if more than one, in fee simple, the children of any deceased child of my said daughter to take the parent’s share by representation.</p> <p>“ If my said daughter shall leave no issue surviving her, the trust premises shall, at her decease, be divided into two equal parts or portions, one of which parts shall go to and be held by the said John T. Heard and his heirs in fee forever, and the other part shall be divided among my heirs at law, as though I died intestate.</p> <p>“ I give my said trustees and their successors, and any persons acting as trustees under this will, full power and authority to sell any and all real estate of which the trust premises shall be at any time composed, and to make any and all deeds, and do any and all acts necessary or proper for carrying into full effect any and all such sales; and the purchasers from such trustees shall not be bound to see tó the application of the purchase money.</p> <p>“ And I give my said trustees, and their successors, and any persons acting as trustees under this will, full power and authority to invest, reinvest, and change any and all property of which the trust premises shall be at any time composed, in such manner as they may deem most beneficial for the parties interested in the fund, but I recommend them, whenever a good opportunity offers, to invest the trust moneys in real estate, situate in the city of Boston, which I consider the best and safest investment, or in notes secured by mortgages of real estate in said city.”</p> <p>After the hearing reported 169 Mass. 216, the case was submitted upon the bill, answers, and an agreed statement of facts to Allen J., who reserved for the consideration of the full court the question, undecided in the former opinion, whether the trustees had power to sell the real estate, the life tenant having deceased, and divide the proceeds among those entitled thereto.</p>

<p>Duress— Conveyance by Woman through Fear of Effect on Husband’s Health of threatened Disclosure — Ratification — Law and Fact. v</p> <p>A woman’s son had been accused of stealing his employer’s money, had made a confession, and agreed to give security for a certain sum. Upon the employer, with whom she previously had talked about her husband’s condition, saying that he should have to tell her husband, who at that time was melancholy, very irritable, and unable to sleep, she said, “ Don’t do that, you know what his condition is ”; and fearing that, if her husband was told of his son’s crime, the knowledge would make him insane, in order to prevent the employer from doing so, she executed to him an assignment of her share in her father’s estate, under which he collected the money. Held, in an action by her to recover it, that it could not be said that the jury would not be warranted in finding that the assignment was obtained by duress. Field, C. J., Knowlton & Lathrop, JJ., dissenting.</p> <p>An act done under duress, which is formally valid, may be ratified when the restraint is removed, and the question of ratification is for the jury.</p>

<p>Bill in equity, brought under Pub. Sts. c. 136, §§ 26 et seq., to reach real estate of Samuel P. Harrington, a deceased surety on a probate bond, in the possession of Leonard Harrington, devisee for life, and of William T. Harrington, devisee in remainder.</p> <p>Hearing before Holmes, J., who entered a decree dismissing the bill, and, the plaintiff having appealed, reported the case for the determination of the full court.</p>

<p>Personal Injuries — Employers’ Liability Act — Superintendence — Fellow Servant — Expert — Testimony.</p> <p>The plaintiff, a lineman in the defendant’s employ, while engaged in stringing an overhead electric light wire which ran through and was obstructed by the branches of a tree, was ordered by one G., who was the foreman of the gang at work upon the wire, and who was accustomed to assist the men under him by performing various acts of manual labor when occasion required it, to cut off a limb of the tree; and after the limb had been cut, G. gave orders to the other men upon the ground to pull the wire back through the tree, and himself took hold of the wire with some of the others and pulled it, and the wire caught upon the limb of the tree upon which the plaintiff was standing, and which seemed to the plaintiff to be sound, and before the plaintiff had time to get into a safe position the limb broke and he fell and was injured. Held, that G.’s act in pulling on the wire was not an act of superintendency within the meaning of the employers’ liability act, St. 1887, c. 270, and that the defendant was not liable.</p> <p>The work of stringing wires from one pole to another through branches of an intervening tree is one within the range of ordinary knowledge, experience, and observation; and it is not a matter as to which expert testimony will be admitted.</p>

<p>Tort, for personal injuries. At the trial in the Superior Court, before Hardy, J., there was evidence tending to show that the plaintiff, a girl twelve years of age, with her brother who was fifteen years of age, entered the defendant’s carpenter shop to purchase a basket of wood, for which she paid five cents to one of the defendant’s workmen; that she and others had bought wood at the plaintiff’s shop on numerous occasions prior to the accident, and that the defendant’s workman had placed the money received therefor in a drawer where change was kept with which to buy small supplies for the shop; that the plaintiff and her brother entered a bin about three feet high partly filled with wood, for the purpose of filling her basket, by a step which she had been in the habit of using whenever she had bought wood at the shop ; that while they were in the bin a workman of the defendant placed some boards diagonally across the top of the bin obstructing the plaintiff’s access to the step by which she entered it; that about eighteen inches from one side of the bin, parallel with it, and extending a large part of the length of the bin was a table, on which there was a revolving knife, projecting about a sixteenth of an inch above the surface thereof; that when in rapid motion the knife might look as if it were at rest; that the plaintiff left the bin by climbing over it at the corner next to this table, which seemed to her to be the best way to get out; and that in so doing she rested her hand on the knife, which she thought was a piece of iron at rest, and was injured. The defendant’s evidence tended to show that he did not know that wood had been sold to the plaintiff or others h}' the basket; that he had given express orders to his foreman and workmen to sell no wood by the basket, and to allow no children in the shop ; that the bin was easily accessible on a side other than that by which the plaintiff left it; and that it was impracticable to cover the knife because it was in such constant use.</p> <p>The defendant requested that the following rulings be given :</p> <p>“ 1. There is no evidence on the part of the plaintiff to show that she was anything more than a licensee at the most.</p> <p>“ 2. There is no evidence sufficient to warrant the jury in finding that the plaintiff was in the exercise of due care when she was injured.</p> <p>“ 3. There is no evidence sufficient to warrant the jury in finding that the defendant or his servants were negligent.</p> <p>“ 4. Upon all the evidence in the case, the plaintiff is not entitled to recover.”</p> <p>The judge refused to give the first ruling, but gave the second, third, and fourth rulings, and directed a verdict for the defendant ; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in March, 1898, and after-wards was submitted on briefs to all the justices.</p>

<p>Trust Deed — Power of Appointment by Will— Time at which Appointees are entitled to be Paid — Interest.</p> <p>On a bill in equity for instructions, brought by trustees under a trust deed of H., it appeared that the deed gave property in trust to the use of such persons and corporations as H. might appoint by will; that H. died on February 9,1895, and by his will and codicil appointed legacies to different persons and corporations, and the residue to the M. Society; that the will and codicil were proved after a contest on May 17, 1897, and that then there was a contest whether the prop erty was assets to be administered by H.’s executor, or was to be distributed by the plaintiffs, which was decided for the plaintiffs on January 25, 1898, and on February 5, 1898, the legacies other than the residue were paid. The words in tlie trust deed were “ upon and after the death of said H. then in trust to hold the said trust property ” to the use of the appointees, and “ the trustees shah take such time, not exceeding three years from the death of H., as they may think best, for the most judicious conversion of the trust estate and to prevent * tlie sacrifice thereof.” Held, that the appointees were to be treated as if they had been entitled to be paid at H.’s death, and that they must be paid interest from that date.</p>

Libel, for a sentence of nullity of marriage. Trial before Sheldon, J., who ordered a decree of nullity to be entered, and reported the case for the determination of this court. If, on his findings, he had power to enter such decree, the same was to stand; otherwise, the libel was to be dismissed. The facts appear in the opinion.

<p>Petition to the Probate Court of Suffolk County, by the executors of the will of George W. Wales, for instructions concerning the sums, if any, due the Commonwealth from the estate of said Wales on account of St. 1891, c. 425, entitled “An Act imposing a tax on collateral legacies and successions.” The judge entered a decree declaring the estate subject to the tax; and the executors appealed.</p> <p>Hearing before Knowlton, J., who, at the request of the parties, reserved for the consideration of the full court the question whether, upon the agreed statement of facts, any taxes were leviable under the statute upon the several interests in the undivided half of Wales Wharf, appointed under the will of George W. Wales.</p> <p>It was agreed that Thomas B. Wales devised by his will, proved in 1853, an undivided half of a wharf in Boston to his son George W. Wales for life, and subject to his disposal by will; that a portion of said undivided half was sold during the life of George under leave of court, and the proceeds reinvested under its order; and that George died in 1896, having executed the power of appointment by his will and codicil, duly proved in favor of certain relatives.</p> <p>The case was argued at the bar in December, 1897, and after-wards was submitted on briefs to all the justices.</p>

<p>Bill in equity, filed May 26,1896, against the inhabitants of Canton and its board of water commissioners, to have the acts of the defendants in taking or claiming to take the waters of Beaver Brook and its tributaries, and of York Pond and its tributaries, in the towns of Canton and Stoughton, and in filing an instrument descriptive of such taking, declared to be void, and to enjoin the defendants from further diverting the waters above named; and also for damages. After the former decision, the case came on to be heard, upon the pleadings and the plaintiff’s motion for the appointment of a master to assess the damages, before Knowlton, J., who ordered the appointment of a master; and reserved for the consideration of the full court the question as to what rule should be adopted in the assessment of damages. The facts appear in the opinion.</p> <p>The case was argued at the bar in December, 1897, and after-wards was submitted on briefs to all the justices.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, by the widow of John A. Gunn, to recover for his death, on November 1, 1895, while he was standing in a repair shop of the defendant in South Boston, upon a step-ladder and was varnishing a tender, then upon one of the tracks in the shop, with his back to a locomotive then being repaired upon an adjoining track. At the trial in the Superior Court, before Hopkins, J., it appeared that the locomotive was blocked up at each end upon trucks which rested each upon four wheels of cast iron weighing about thirty pounds each; that in moving the locomotive a wheel of the truck was broken at a point where it came in contact with something with which it had been trigged, and of which there was testimony that it looked like a hexagon nut, and that the locomotive fell over upon Gunn and killed him.</p> <p>The judge directed the jury to return a verdict for the defendant ; and the plaintiff alleged exceptions. The remaining facts appear in the opinion.</p>

Contract, on a promissory note signed by the defendant, John W. Keith, dated December 13, 1895, for $116.33, payable one month after date to his own order, and indorsed by him in his own name and in the firm name of “ Forbush & Keith.” At the trial in the Superior Court, before Sheldon, J., it appeared that Forbush and Keith were practising lawyers in the city of Boston, under the firm name of “ Forbush & Keith,” and that Keith indorsed the firm name of “ Forbush & Keith ”…

<p>Trustee process. The Chicago Title and Trust Company, a corporation organized under the laws of the State of Illinois, petitioned to be allowed to intervene as a claimant of the funds. The plaintiff was an inhabitant of Vermont.</p> <p>The case was submitted to the Superior Court, and, after judgment charging the trustee and dismissing the petitioner’s claim, to this court, on appeal, upon agreed facts, which appear in the opinion.</p>

<p>Tout, for personal injuries occasioned to the plaintiff by the fall of a derrick while he was at work on a section of the subway in the city of Boston. The declaration was under the employers’ liability act, St. 1887, c. 270.</p> <p>Trial in the Superior Court, before Maynard, J., who ruled that the action could not be maintained, and directed a verdict for the defendant. The plaintiff alleged exceptions, and the judge reported the case for the determination of this court. If the ruling was right, the verdict was to stand; otherwise, it was to be set aside, and a new trial granted.</p> <p>The case was argued at the bar in March, 1898, and after-wards was submitted on briefs to all the justices.</p>

Tort, for malicious prosecution. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions, which appear in the opinion.

<p>CONTRACT, upon a policy of insurance for $10,000, against loss by fire on the plaintiff’s “ leasehold interest ” in its various systems of store service in the United States, for one year from December 3,1890. Trial in the Superior Court, before Blodgett, J., who, at the defendant’s request, ruled that the plaintiff was not entitled to recover, a,nd directed the jury to return a verdict for the defendant, and the plaintiff alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1898, and after-wards was submitted on briefs to all the justices.</p>

<p>Patent — License—Compensation for Use — Inference of Promise to Pay — Ruling of A uditoi— Evidence — Expert — Trial.</p> <p>Before the granting of a patent an inventor has a qualified property in his invention which is assignable and which may have a value and serve as a consideration for a promise to pay for a transfer and sale.</p> <p>A license to use an invention may be given before the granting of a patent therefor, and, if acted on by applying the invention to machines or mechanisms constructed before the granting of the patent, will avail to protect the licensee in their use afterwards. Such license, and an implied promise to pay reasonable compensation therefor, may be inferred from circumstances.</p> <p>Evidence that the plaintiff’s brother, who was a director and officer of a corporation employing the plaintiff, was aware of the use by the corporation of the plaintiff’s inventions and of his claim for reasonable compensation for their use; that officers of the corporation wrote to and talked with the plaintiff with reference to such use and claim ; that directors of the corporation knew that it was using his inventions and that he would claim compensation therefor; that the plaintiff, at the request of officers of the corporation, while still in its employ, assigned to-it his patents afterwards obtained for the inventions and was paid the expense of perfecting the inventions and procuring the patents; and that the plaintiff then asserted that he did not waive his right to royalty for the former use of the inventions, but should insist upon future payment, and was assured that his claim would be adjusted later, will warrant the inference, in an action against the corporation, of an implied promise to pay compensation for the use of his inventions, in the absence of evidence that he agreed to license such use gratuitously.</p> <p>The report of an auditor, in an action to recover compensation for the use of inventions, stated that he ruled that the plaintiff was entitled to recover reasonable compensation. He had been asked to rule, as matter of law, that the plaintiff could not recover any compensation for the use of his inventions while he was in the defendant’s employ. Held, that the ruling was to be taken to mean that the plaintiff was not debarred from recovery on the ground stated; and that, if it meant more than that, it must be treated as a finding of fact, or as a statement that the plaintiff was entitled to recover provided the facts reported would warrant it.</p> <p>An expert witness is rightly allowed to explain, in an action to recover compensation for the use of inventions, the operation and supposed advantages of the inventions, the letters patent and models of which are before the jury.</p> <p>It is within the discretion of the judge, in an action to recover compensation for the use of inventions in the construction of stock cars, to permit a witness to give an opinion of the value of the use of such inventions, if he testifies that he has taken out between forty and fifty patents for stock and cattle cars, has made out specifications for these patents, is pretty familiar with the devices used on stock cars, has had ten or twelve years’ experience with stock cars outside of his experience as an inventor, has held several offices in the defendant stock car company, and had full charge of the construction of its cars for five or six years, and is familiar with other kinds of stock cars.</p> <p>That the letters patent for inventions were not actually issued when the defendant . used the inventions can be considered by the jury in estimating the weight to be given to the opinion of an expert witness as to the value of such use, even if the defendant did not choose to call the attention of the witness to the fact.</p>

<p>Appeal from, Municipal Court — Discontinuance.</p> <p>In an action in the Municipal Court of the city of Boston the judge found for the defendant and judgment was entered in his favor, from which the plaintiff appealed to the Superior Court to be held on the first Monday of July, 1896. On October 14 following, the plaintiff filed a discontinuance. Two days thereafter the defendant moved that the judgment of the Municipal Court be affirmed, on the ground that the plaintiff had failed to prosecute his appeal; and judgment was so affirmed. Held, that the appellant had a right to discontinue as lie did, and that in entering the appeal and prosecuting it to the discontinuance he prosecuted it with effect as required by the statute.</p>

<p>Voluntary Trust — Alleged Cestui que Trust — Ignorance, Mistake, or Fraud — Equity— Evidence.</p> <p>Where, so far as a declaration of trust goes, nothing can be plainer than the persons for whose benefit the trust is declared, and it is competent for the presiding justice to find on the evidence before him, and for aught that appears he does so find, that the contents of the instrument were known to the settlor and were assented to by him as correctly setting forth the terms of the trust on which the money was paid by him to and was received by the trustee, the contention of a person that the object was to benefit the heirs of A., of whom he was one, and that by ignorance, mistake, or fraud his name was omitted from the list of heirs found in the possession of the settlor, and that the instrument should be reformed so as to admit him as a beneficiary, cannot be maintained.</p> <p>The terms of a declaration of trust cannot be varied or affected by statements made by the creator of the trust after it has been executed and carried into effect, and in the absence and without the knowledge or assent of the other parties interested.</p>

<p>Bill in equity, praying for an injunction against further interference with the plaintiff’s water, and for damages. The case, having been previously reported 165 Mass. 186, was now reported by Richardson, J., for the determination of this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1898, and after-wards was submitted on briefs to all the justices.</p>

<p>Petition in equity, by the receivers of the defendant association, praying for the instructions of the court as to their duties. Hearing before Lathrop, J., who reserved the case upon the pleadings and the intervening petition of one James A. Shaw for the consideration of the full court. The facts appear in the opinion.</p>

<p>Indictment, for murder. The hearing was on a special plea and the replication thereto, before Hopkins, J., who overruled the same, and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Homicide — Evidence.</p> <p>At the trial of an indictment for murder, it appeared that early in the morning of a certain day the house of the man alleged to have been murdered was burned down, and the remains of a human body of uncertain sex were found in the ruins. There was no identification of the body otherwise than by the place where it was found, by the fact that the man had been seen at his house the previous evening and was seen no more, and by a clasp of a pocket-book like his found near the remains ; and there was no direct evidence of the commission of a crime. Held, that the other evidence in the case, relating mainly to the appearance and conduct of the defendant after the fire, to the articles found in his room, and to the habits of the missing man, taken with the facts above mentioned, warranted the jury in finding it proved beyond a reasonable doubt that the man was murdered, and was murdered by the defendant.</p> <p>At the trial of an indictment for the murder, in July, of a man whose house was burned down, the remains of a human body supposed to be his being found in the ruins, it appeared that officers who searched the defendant’s room found two secreted twenty-dollar gold pieces; and that the missing man had no bank account, but apparently kept his money as he earned it, except the very small sums which he had to spend for his living. Held, that evidence that the man was paid one twenty-dollar gold pieee in December preceding the fire, that he exhibited four such pieces in the following March, and exchanged one for paper money, and that he had three such pieces at Easter and in May, was not open to the objection of remoteness, having regard to his habits.</p> <p>A person who was under arrest upon suspicion of robbery and murder, and whose room had been searched by an officer and bloody clothing and two secreted gold pieces found there, and who previously had told of having been assaulted and having found some money, was asked by the officer, “ How is it that that blood came on your drawers 1 ” to which he replied, “ This morning when I came into my room my hands were all bloody and I took the first thing that I could find to wipe them off, and that was the pair of drawers.” He was then asked by the officer, who exhibited the gold pieces, “ Do you know where I got those 1 ” and answered in the negative. The officer then said, “ I got them up in your room under the carpet on the floor ” ; to which he replied, “ I know it, I put them there.” Held, upon an indictment for murder, that the evidence of what he . said to the officer was admissible.</p>

<p>Contbaot OB TOBT. The first count was for money had and received, and the second was for conversion. The action being against Elbridge G. Wood, trustee under the will of Edmund Gage, Lydia W. Gage, the widow, who was also a trustee, having deceased, Clara G. Eaton, and Rebecca A. Covelle, who was also a trustee, were, on motion, made parties defendant. The plaintiff was the residuary legatee under the will. The case was submitted to the Superior Court, and, after judgment by Sheldon, J. that the net sum received from ground rents be paid by the defendant Wood to the plaintiff, and to the defendants Clara G. Eaton and Rebecca A. Covelle, in equal shares, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion.</p>

Contract. The original declaration contained two counts, each for money had and received; and was amended by the addition of thirteen counts for the recovery of amounts paid on alleged purchases of stock, and of the profits resulting from the transactions.

<p>Personal Injuries — Exclusion of Photographs as Evidence — State Valuation of Defendant City — Burden of Proof— Instructions.</p> <p>No exception lies to the exclusion of photographs as evidence, if, so far as appears, their rejection was on the ground that the party offering them failed to make out the preliminary matters of fact necessary to make them admissible.</p> <p>In an action for personal injuries occasioned to the plaintiff by reason of an alleged defect in a highway in the defendant city, it is not injured by a refusal to rule that the plaintiff has not made out his case because he has offered no evidence of the State valuation of the defendant, as referred to in Pub. Sts. c. 52, § 20, and to a statement that it was fair for the jury to assume in the absence of evidence that one fifth of one per cent of the valuation would amount to more than four thousand dollars. Apart from the burden of proving a valuation which would cut down its liability below four thousand dollars, which burden was upon the defendant, the court had a right to take notice of St. 1895, c. 90, which established the valuation in question and showed that the statement to the jury was correct.</p>

<p>Will — Undue Influence.</p> <p>Where it appears that whether the contents of an alleged will were known to the testatrix and whether they expressed her intentions depend wholly upon the testimony of the son, in whose handwriting the instrument is and in whose interest it is mainly drawn, it having been executed without the knowledge of the rest of the family or a word of counsel from any one but himself, and when the testatrix was of advanced years, and where the court is unable to believe his account of the interviews between himself and his mother which resulted in the execution of the instrument, a decree affirming a decree of the Probate Court disallowing the instrument as the last will of the testatrix will not be disturbed.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, by reason of an alleged defect in the sidewalk of a street in the defendant city. At the trial in the Superior Court, before Richardson, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Personal Injuries — Master and Servant — Action—Due Care — Negligence — Law and Fact.</p> <p>An employee in a shoe factory, who, in going from the floor on which he works to the engine-room on the floor below to get some oil for the machine of which he has charge, is injured by falling through an open trap-door in a dark passageway leading to the engine-room, of the existence of which he is ignorant, although he has worked there about four weeks, and used the passageway daily, and is walking quickly without looking at the floor, is entitled, in an action against his employer for his injuries, to go to the jury upon the questions of his due care and his employer’s negligence.</p> <p>It cannot be ruled, as matter of law, in an action for personal injuries occasioned to the plaintiff while in the defendant’s employ, by falling through an open trap-door left unguarded by a fellow servant who opened it, that the latter was negligent, if it does not appear that any guards were furnished by the defendant.</p>

Contract, to recover the amount of two assessments upon the defendant as a policy holder in the plaintiff corporation. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, in substance' as follows.

<p>Conversion — Landlord and Tenant — Reasonable Time — Lazo and Fact — Action — Agency — Evidence.</p> <p>Whether a tenant at sufferance is entitled to a reasonable time to remove his goods after a notice to quit from his landlord, a ruling to that effect is not required in an action by the tenant against the landlord for conversion of the tenant’s goods which the landlord has removed, if the judge cannot, as requested, rule, as matter of law, that the time which elapsed between the notice and the removal was not a reasonable time. Where the facts are not disputed, what is reasonable time is a question for tlie court.</p> <p>A landlord is entitled, at least after the lapse of a reasonable time from the giving to a tenant at sufferance of a notice to quit, if the tenant does not remove his goods, to remove them himself, and, having offered to take them where the tenant wishes, and received no directions in the matter, if he stores them subject to the tenant’s order he is not liable to an action for conversion of the goods.</p> <p>In an action by a tenant at sufferance against his landlord for the conversion of goods which, after a notice to quit, the latter removed, the defendant testified that he had several conversations with A., in which A. told him that the occupant of the building was the husband of one of the beneficiaries under a trust held by A., and in order to carry through the sale of the building to the defendant, and get the occupant, who was the plaintiff, to vacate the premises, it would be necessary to pay him a certain sum of money. The plaintiff, when asked, “ Then you did authorize A. to deal with the question when you should get out,” answered, “ Certainly, I ordered him to.” He further testified that among the controversies was one about moving out; and that “A. consulted with us all through, and we acquiesced in everything.” Reid, that the judge was warranted in finding that A. acted as the plaintiff’s agent; and that the defendant’s testimony was rightly admitted in evidence.</p>

<p>CONTRACT, upon an account annexed, for services rendered. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the defendants; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Petition, to the Superior Court, under the statutes relating to the abolition of crossings at grade by railroads and other' roads, for an assessment of damages caused to the petitioner’s property in Boston. The respondent appeared specially, and moved to dismiss the petition for want of jurisdiction.

<p>Appointment of Trustee—Waiver of Will by Widow — Funeral Expenses, Burial Lot, and, Monument — Perpetuity — Termination of Trust — Nearest of Kin — Nearest Blood Relations — Contingent Remainder.</p> <p>Where a will contains no devise or bequest to any one as a trustee of the testator’s estate, but appoints his brother to be executor and trustee, and the ultimate division which the testator contemplates is not to be made until all the provisions of the will have been carried out, and this will require action on the part of an executor or trustee after the death of the survivor of his widow and his sister, the word “ trustee ” must be regarded as used not merely as a synonym for “ executor,” and the brother may be appointed trustee.</p> <p>While a testamentary provision for the preservation, adornment, and repair of a private monument may be void as creating a perpetuity for a use not charitable, a provision which will be completely performed upon the decease of the testator’s widow is not open to that objection.</p> <p>While, after the waiver by a widow of the provisions made for her in her husband’s will she cannot demand that funds, as directed therein, shall be kept to pay the expenses of her funeral, and to erect a suitable tablet at the bead of her grave, it is the duty of the executor, notwithstanding the objections of the widow, to retain funds sufficient for those purposes, until, upon her death, the funds shall be so expended, or their use, as the testator has willed that they should be used, shall have been shown to be impossible.</p> <p>The words, “ when my wife has deceased and her funeral expenses have been paid, and all the provisions named in this will have been carried out, I -will what is left of my estate be devided among my nearest of kin,” there being a provision for the use of a certain one of the testator’s tenements by a sister during her whole natural life, indicate, when considered with the whole scope of the will, the intention that those who shall be the testator’s nearest blood relations at the death of the survivor of his wife and sister shall then take what shall be left of his property.</p>

<p>Contract, under St. 1894, c. 436, to recover money paid by the plaintiff to the town of Danvers for the tuition of his' daughter in its high school. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, in substance as follows. ■</p> <p>The defendant town is not required to maintain a high school under Pub. Sts. c. 44, § 2, as it does not contain five hundred families or householders. The plaintiff’s minor daughter resided with him in Boxford, which does not itself maintain a high school or any school of corresponding grade, but there is maintained therein a school of corresponding grade by the trustees of a fund created by the will of Jonathan T. Barker, the school being free to all the inhabitants of Boxford and elsewhere, and the curriculum thereof and the instruction therein being equal to that of high schools as prescribed by law.</p> <p>The plaintiff’s child attended the high school in Danvers, being properly qualified to enter the same, the school committee of Boxford having first refused to approve such attendance upon the sole ground that the “ Barker Free School ” was a school of corresponding grade to a high school maintained in the town. The town of Danvers charged a reasonable amount for the tuition of the child.</p> <p>The defendant town appropriates nothing for the support of the Barker Free School, and exercises no control over it, and it has never been approved by the State Board of Education.</p>

Dallagher, as administrator of the estate of Bridget Dallagher, for a license to sell one undivided third part of certain real estate for the payment of debts. The appellant, who was a son of the intestate, contended that she was the owner of an undivided half, and that a sale of an undivided third would injure the property, and cause loss to all interested.

<p>Bill in equity, filed February 15, 1897, in the Superior Court, to remove an alleged cloud upon the title to certain land in Boston. After a hearing on the agreed facts, a decree was entered dismissing the bill; and the plaintiff appealed to this court. The facts appear in the opinion.</p>

<p>Deed — Condition — Restriction.</p> <p>Land was conveyed by a deed reciting as follows: “ Provided that no building shall ever be erected on said lots of land or either of them within ten feet of the streets as exhibited on said plan.” A subsequent deed of the land contained the following clause: “ On condition that no building shall ever be erected on said lot within ten feet on said ” street “ as laid down on said plan.” A later conveyance of the land recited that “ the premises are sold subject to the condition that no building shall ever be erected on the granted premises within less than ten feet from said street.” Held, that the clauses in the several deeds were not to be considered as conditions, a breach of which would work a forfeiture, but as restrictions.</p>

<p>Bill in equity, filed May 28, 1897, by a child of. Henry A. Thomas and Nellie. D. Thomas, his second wife, he having been divorced from his first wife, Mary E. Thomas, against D. Morgan Crosby, trustee, said Henry A. Thomas and Mary E. Thomas, and Fannie E. Fiske, their daughter, to review and vacate a decree of this court entered on August 28, 1896, terminating a trust created by said Henry A. Thomas. Hearing before Morton, J., who reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Officer — Neglect to arrest on Execution issued on Void Judgment.</p> <p>In an action against an officer to recover damages for neglect to arrest a person on an execution, it is open to the defendant to prove that the judgment and execution were void.</p>

<p>Contract, on seven promissory notes. Trial in the Superior Court, before Hardy, J., who, at the close of the testimony, directed the jury to return a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Contract, to recover the amount of two checks payable to the plaintiff and signed by the defendant. Trial in the Superior Court, without a jury, before Dunbar, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1897, and after-wards was submitted on briefs to all the justices.</p>

<p>Contract, to recover $618.87, deposited by the plaintiffs with the defendant, with a count for refusing to honor a check for the same amount. Trial in the Superior Court, without a jury, before Hardy, J., who found for the plaintiffs; and the defendant alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1897, and after-wards was submitted on briefs to all the justices.</p>

<p>Loss of Property Toy Fire—Railroad — Negligence — Remoteness of Cause— Action.</p> <p>Although a railroad corporation is negligent in storing oil on the platform of its freight house in a town, it is not liable for the loss of adjacent buildings by fire caused by the careless act of a person not in its employ and rightfully on its premises, and which ignites the oil and spreads to the buildings. Knowlton, J. dissenting.</p>

<p>Contract, upon an account annexed, for labor and materials furnished in laying a drain in Boston. Trial in the Superior Court, without a jury, before Hopkins, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Personal Injuries — Assumption of Risk — Action — Master and Servant.</p> <p>A boy, who had had two years’ experience in riding colts which were being trained, was injured by the breaking of a stirrup strap on the saddle which he was using when so employed. In an action against his employer for his injury, he testified that, when he went to work, A., the defendant’s foreman, handed him a saddle on which the stirrup strap was too short; that he called A.’s attention to this, and A-. said, “ Here is a pair of old stirrup straps hanging in the case that you will have to use,” taking them down and handing one to the plaintiff, who noticed a bad place in it, and told A. that it did not look right; that A. took it out of his hand, got hold of it and pulled it; that he then put it on the floor and pulled it up, and said it was strong enough to hold him, and that it had got to hold the plaintiff until he got a new one; that the plaintiff believed the strap was strong enough after A. tested it and told him it was strong enough; and that he used it several days, when it broke at the point to which A.’s attention had been called. Held, that the plaintiff assumed the risk of using the strap in the condition in which it was; and that the action could not be maintained. Knowlton, J. dissenting.</p> <p>An employer is under no legal obligation to furnish his injured employee with medical attendance.</p>

<p>Marriage — Divorce — Statute.</p> <p>Section 10 of c. 145 of the Public Statutes, which declares that, when persons resident in this Commonwealth, in order to evade the provisions of certain statutes as to prohibited marriages, and with an intention of returning to reside in this Commonwealth, go into another State or country, and there have their marriage solemnized, and afterwards return and reside here, the marriage shall be deemed void in this Commonwealth, requires that both parties should have the intention to evade the provisions of the statute.</p>

<p>Writ oe error, to reverse a judgment of the police court of Chelsea, rendered in an action of contract brought by the defendant in error against the plaintiff in error. Plea, in nullo est erratum. At the hearing in this court, before Knowlton, J., it appeared that, on November 7,1896, the summons in the original action was delivered to the plaintiff in error by an officer, who testified that he then told her when she was to appear at court, and that she told him what the suit was for. The plaintiff in error admitted that, at about ten o’clock on November 14,1896, she, with her husband and her attorney, was on the stairway of the building in which the police court of Chelsea is regularly held, which stairway leads to the hall adjacent to the police court room, and that she was then told by the attorney that the writ in the original action against her was returnable before the police court on that day and at about that hour, and that the date intended to be inserted in the summons served upon her was October 29, 1890, instead of October 29, 1896. It also appeared that the attorney went into court and examined the writ, and came' away without informing the court or the attorney of the plaintiff in the original action of the mistake in the date of the summons. The return of the officer was in the usual form, setting forth due service of a summons upon the defendant.</p> <p>The justice found as a fact that the plaintiff in error knew of the mistake in the date of the summons before the time for appearance, and that she purposely refrained from appearing in answer to the suit on account of the mistake.</p> <p>The counsel for the plaintiff in error contended as follows:</p> <p>“ 1. That the plaintiff in error had not been served with original process in contemplation of law. 2. That she had in no degree waived her right thereto by appearance or otherwise. 3. That, as matter of law, neither the said so called summons, which was lacking in not containing precise and correct notice of the time of the holding of the court at which she was called upon to appear, nor the information obtained as aforesaid in contradiction of that contained in the so called summons, made her responsible to the police court of Chelsea; that there was absence of notice to her to attend, such as she was bound in law to respect; and that she was entitled to have the judgment reversed.”</p> <p>Inasmuch as the record showed due service, and no error was apparent of record, the justice was of opinion that the plaintiff in error had a remedy against the officer who served the writ in an action at law for making a false return, to recover the damages caused thereby, if any, and that she was not entitled to a remedy in this form of proceeding, and refused to rule as requested ; and the plaintiff in error alleged exceptions.</p>

<p>Bill in equity, filed July 29, 1897, in the Superior Court, against the Equitable Life Assurance Society of the United States, a corporation, Frank A. Russell, individually and as trustee, and the executors of the will of Daniel W. Russell, for the redemption and reassignment to the plaintiff of a policy of insurance. Hearing before Richardson, J., who found the following facts.</p> <p>On or about September 29, 1893, Josiah B. Kendall, whose life was insured in the defendant corporation, borrowed for his own use of Daniel W. Russell the sum of $1,900, and gave his note therefor payable in six months from date, with interest after maturity at the rate of two per cent per month.</p> <p>The policy was issued on July 29, 1882, by which the company promised to pay to the plaintiff, who was the wife of Kendall, for her sole use if living, and, if not living, to his children, or, if there were no children living, to his executors, administrators, or assigns, the sum of $10,000 ; and contained the following provision: “ That upon the completion of the tontine dividend period, on July 25,1897, provided this policy shall not have been terminated previously by lapse or death, the said Josiah B. Kendall shall have the option either, first, to withdraw in cash this policy’s entire share of the assets, i. e. the accumulated reserve, which shall be thirty-five hundred and thirty-five dollars, in addition thereto the surplus apportioned by this society to this policy; secondly, to convert the same into a' paid up policy for an equivalent amount.’.’</p> <p>On the same date, September 29, 1893, an assignment of the policy was made by the plaintiff and her husband to Frank A. Russell, trustee for Daniel W. Russell, of all their right, title, and interest in the policy, guaranteeing the validity and sufficiency of the assignment. The premiums upon the policy were payable quarterly, and upon the failure of Kendall to pay the premiums, Daniel W. Russell paid the premiums which became due in October, 1893, and in January and April, 1894; and thereafter, in June, 1894, Kendall having failed to pay the note for $1,900 at maturity, and also to pay the premiums so paid by Daniel W. Russell, entered into an agreement with the latter by which a new note was given by Kendall for the amount of the first note and interest, and the amount of the three premiums paid by Russell, which new note bore interest at the rate of two per cent per month, and recited that the assignment of the policy of insurance was held as collateral security therefor; and the original note of $1,900 was given up to Kendall. When the new note became due, Kendall and Russell agreed .that another note should be given by Kendall in substantially the same form, the principal of which should be made up by computing the interest at the rate named in the existing note, namely, two per cent per month, adding thereto the amount paid for the quarterly premiums and the principal sum of the existing note, which new note should recite that the insurance policy was collateral security for the new note, in the same manner as provided by the original note. Russell thereafter paid all the premiums upon the policy quarterly, after demanding of Kendall that he should pay the same, and took new notes quarterly from time to time, made up in the manner above set forth, until the death of Russell, in 1895; and after his death the executors of his will, having made demand on Kendall for payment of the sum then due, continued to take his new notes quarterly at the same rate of interest, and pay the premiums to the insurance company, and each new note recited that the assignment of the policy to Frank A. Russell, trustee, was collateral security for the payment of the note, until April, 1897, when the last note was given, which was payable on demand, with “ interest at the rate of two per centum per month for such further time as said principal sum or any part shall remain unpaid,” and recited that the policy was deposited as collateral security.</p> <p>Kendall died in June, 1897. Neither the defendants nor Daniel W. Russell in his lifetime, ever saw the plaintiff about this matter, or had any communication or dealings with her therein, and were ignorant as to any representations that were made to her by her husband, or by her to him, in respect to the assignment of the policy, and were also ignorant of the fact, “ which I find as a fact, that she did not ever consent or agree that the policy should be pledged or held by said Russell as security for any debt other than the note of $1,900 and interest thereon. She had no knowledge or notice that the said Russell claimed to hold said policy as security for any debt other than the original debt of $1,900 and interest thereon, until after the death of said Josiah B. Kendall, nor did she authorize her husband to pledge it for any other debt.”</p> <p>The plaintiff contended, first, that, upon the foregoing facts, she was .entitled to a reassignment of the policy without paying any amount to the defendants or any of them ; secondly, that, if she was liable to pay anything to redeem the policy, she was entitled to an assignment upon paying the aggregate amount of the quarterly premiums paid by Russell, together with interest thereon from the date of the payment thereof, at six per cent per annum ; or, thirdly, that in no event was she bound to pay more than the amount of the original loan with interest at six per cent and the quarterly premiums, with interest thereon at six per cent per annum from the date of payment.</p> <p>The defendants contended that they were not bound to reassign the policy except upon payment to them of the full amount of the last note given by Kendall. The amount of this note was made up from the original loan of $1,900, together with interest thereon at the rate of two per cent per month, compounded quarterly from the date of the maturity of the loan, together with the amount of the quarterly premiums, with interest on each amount from the date of its payment at two per cent per month compounded quarterly. The defendant corporation is willing and ready to pay the amount of the policy to the person or persons entitled to the same.</p> <p>The judge ruled, on these facts, that the plaintiff was entitled to a reassignment of the policy on payment to the defendant executors of the amount of the original loan, with interest at the rate of six per cent since the date of that loan, and the amount of all the premiums paid by Daniel W. Russell or his estate, with interest on each premium from the date of the payment of it to the date it was repaid, at the rate of six per cent per annum; and ordered a decree to be entered accordingly. Both the plaintiff and the defendants appealed therefrom ; and thereupon, at the request of all the parties, the judge reported the case for the determination of this court.</p>

<p>Writ of Entry — Amendment — ‘ ‘ Boulevard ’ ’ — Deed — Condition — Breach— Waiver.</p> <p>At the trial of a writ of entry to recover land conveyed to a city upon the conditions that a portion of it should be laid out as a highway and the remainder used as a park or boulevard, and that a failure to do either should work a forfeiture, it is within the power of the judge to allow an amendment of the description of the land contained in the writ, which did not include the part laid out as a highway, so as to include all the land described in the deed.</p> <p>A speedway or driveway seventy-five feet wide running parallel with a public street and distant twenty-five feet therefrom, the intervening space being turfed over and planted with shade, trees, the northerly line of the street and the southerly line of the speedway being also planted with trees, is a “boulevard, ” within the meaning of the condition in a deed that the land “ shall be improved, dedicated, and forever used by the grantee as and for a common, park, or boulevard, and for no other purpose.”</p> <p>The grantee of land in fee is entitled to make any use of it not prohibited by the conditions in the deed, whether the parties thought of it or not.</p> <p>The construction and maintenance by a city of a system of pipes below the surface of the ground, for the purpose of obtaining and distributing water to its inhabitants, do not constitute a breach of the condition in the deed of the land to the city, that it “shall be improved, dedicated, and forever used by the grantee as and for a common, park, or boulevard, and for no other purpose ”; nor do the experiments made on the land incidental to the subsequent use and temporary in character, by driving iron pipes into the ground, the surface of which is left in a disturbed condition to some extent, constitute such a breach.</p> <p>The erection and maintenance by a city, for supplying its inhabitants with water, of a pumping station composed of a steam pump, engine, and boiler placed in a building upon land conveyed to the city by a deed containing the condition that it “ shall be improved, dedicated, and forever used by the grantee as and for a common, park, or boulevard, and for no other purpose,” are a breach of the condition.</p> <p>If the judge presiding at the trial of a writ of entry to recover land alleged to have been forfeited rules that, on the facts found, there was no waiver by or estoppel against the demandant, whether this is a ruling of law or a finding of fact, it is to be sustained, unless the facts found, as matter of law, require a different ruling or finding; and on the facts before it in the present case, this court cannot say that the rulings or findings upon this part of the case are erroneous.</p> <p>If land is conveyed to a city upon the conditions that a portion of it shall be laid out as a highway-and the remainder used as a park or boulevard, and that a failure to do either shall work a forfeiture, the bringing of a writ of entry to recover the land, the description of which does not include the part laid out as a highway, and which is cured afterwards by an amendment containing such description, is not a waiver of the breach of the conditions in the deed.</p>

Bill in equity, by Henry L. Higginson and six others, all of Boston, against the treasurer of the city of Boston and the city of Boston, to obtain possession of a certain trust fund.

Petition, to the Probate Court, by the executor of the will of James A. Winslow, late of Binghamton, in the State of New York, for instructions as to the payment of a collateral inheritance tax. A decree was entered that the residuary estate devised to Mary E. Woodbridge was liable to pay such tax, and Mary E. Woodbridge appealed to this court. The facts appear in the opinion.

<p>Bill in equity, under Pub. Sts. c. 151, § 2, cl. 11, and St. 1884, c. 285, to reach and apply in payment- of a debt a verdict for personal injuries before judgment has been entered upon it. The defendant Sweet, who was an inhabitant of Rhode Island and who was not served with process within this Commonwealth, appeared specially by attorney and filed a motion to dismiss the bill, and also a,plea to the jurisdiction. The plaintiffs traversed the plea, and, after a hearing on evidence, the Superior Court entered a decree dismissing, the bill, with costs; and -the plaintiffs appealed to this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1898, and after-wards was submitted on briefs to all the justices.</p>