Volume 173 — Massachusetts Reports

<p>Contract, to recover SI,622.50, the balance alleged to be due the plaintiff for work and labor performed and furnished in excavating a lot of the defendant on Cedar Street, in Boston. Trial in the Superior Court, before Sheldon, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The work was done under a written contract, by the terms of which the plaintiff agreed to build a cellar upon the defendant’s land, and a drain to connect with the sewer in the street, and also to do the rough grading of the lot, the cellar to be built in accordance with plans or specifications to be furnished to the plaintiff by one Rantin, and the work to be finished on or before July 1, 1895; and the defendant agreed to pay for the same to the plaintiff the sum of $750. Neither party offered any evidence other than that contained in the report of an auditor to whom the case had been referred. The facts found and stated by the auditor, so far as material, were as follows:</p> <p>“At the time of making the contract, the lot owned by the defendant was practically a ledge having a bank wall of about four feet in height on its northerly boundary, next to the street. The ledge rose quite abruptly in height just back of the wall, and over the surface of a considerable part of the lot was over twenty feet in height above the street. The lot was considerably higher along its easterly side than it was on a part of its southerly boundary. The ledge was composed of Roxbury stone, and a great deal of conflicting evidence was introduced as to its quality. Over part of the ledge there was a coating of earth of varying thickness, but in no place was there any great depth of soil. The lot was between forty-five and fifty feet in width, and there were two dwelling-houses on the adjoining lots, and the neighborhood was thickly settled.</p> <p>“ After the making of the contract, the plaintiff went to work under the same. He did not complete the work by July 1, as provided for by the contract, but any objection as to his failure to do this was waived by the defendant. The defendant failed to secure the approval of the inspector of buildings of her plans for the construction of the building, and Rantin, acting for the defendant, told the plaintiff ‘to go slow’ on that account, and told the plaintiff that he, the architect, would have to make a new set of plans in order to get a permit. A new set of plans was made, and the defendant figured on the same, but no new contract was ever made.</p> <p>“ In these details the parties are in substantial accord. The plaintiff about that time stopped work. He claims that he was directed to stop by Rantin. This Rantin denies. It is evident that the defendant acquiesced in the stopping of the work, even if she or her agents did not direct it, as no demands were made upon the plaintiff to complete his contract, and the whole chain of circumstances shows that the defendant could not have desired the completion of the contract. Upon all the evidence, I find thac the defendant, by her duly authorized agent, Rantin, directed the plaintiff to stop work. The plaintiff did not object to stopping work under his contract, and acquiesced in the direction to stop work.</p> <p>“ Considering all the evidence on this question carefully, I find that the work and labor performed and furnished by the plaintiff, including services of his teams and supplies furnished, (after allowing for the value of the stone removed by the plaintiff,) was fairly worth $1,200, independently of the contract.</p> <p>“ I find that to complete the work required to be done under the contract, including the excavating required to build the cellar, grade the lot to its entire width as shown by plans, and build the cellar walls and piers, and also construct a sewer connecting with the main sewer in the street, considering that considerable of the stone required for the walls could be found on the premises, would be fairly worth $925.</p> <p>“ On August 17, 1895, the defendant paid the plaintiff $250 on account.</p> <p>“ The plaintiff contended that, under the circumstances aforesaid, he was, as matter of law, entitled to recover the fair market value of all the work performed and furnished by him, irrespective of the contract price. If his contention is correct, I find that he is entitled to recover said sum of $1,200, less a credit of $250, leaving a balance due of $950, and interest from the date of his writ.</p> <p>“ The defendant contended that, if the plaintiff was entitled to recover at all, his recovery must be with reference to the price that he agreed to perform the entire work for, to wit, $750; and that she was entitled to the benefit, by way of diminution of damages, of the stipulations of the contract, and a deduction for anything remaining undone under the contract proportioned upon the contract price; and that the contract price must be considered upon the question of real value to the defendant of the plaintiff’s services.</p> <p>“ It seems fair to both parties that these considerations should be given great weight in determining the amount, if any, which the plaintiff should receive. Because the plaintiff saw fit, with the acquiescence of the defendant, to stop the work, she should not be compelled to pay more than she would have been if the contract had been completely fulfilled, a cellar built and connected with the sewer, and her land rough graded. It is evident that, if the defendant had required the plaintiff to carry out his contract, he would have lost a large sum of money, and it does not seem right to allow him to avoid the consequences of a bad bargain by reason of an act that prevented a still greater loss to him, was evidently for his benefit, and in which he acquiesced.</p> <p>“ Considering all these things, and determining the fair price of the work done irrespective of any contract to be $1,200, as aforesaid, and estimating the work remaining to be done at $925, the contract price being $750, I find the plaintiff is entitled to recover in this action the sum of $425, less the amount already paid him of $250, leaving a balance now due him of $175, with interest from the date of the writ.”</p> <p>At the trial, the defendant requested the following rulings:</p> <p>“ 1. On the facts found by the auditor, the plaintiff is entitled to recover only pro rata upon the basis of the contract price.</p> <p>“ 2. The plaintiff is not entitled to recover anything more than the amount found by the auditor to be due to the plaintiff, to wit, the sum of one hundred and seventy-five dollars, and interest from the date of the writ.</p> <p>“ 3. There being no evidence offered upon either side to control the auditor’s report, the verdict must be in accordance with the finding therein, to wit, for the plaintiff in the sum of one hundred and seventy-five dollars, and interest from the date of the writ.”</p> <p>The judge refused so to rule, and directed the jury to return a vetdict for the plaintiff in the sum of $950, and interest from the date of the writ; and the defendant alleged exceptions.</p>

<p>Contbact, under St. 1891, c. 210, § 2, to recover damages sustained by Catherine E. Reilly in her property by the acts of the agents of the State Board of Agriculture upon her land in the defendant town, on May 20, 1897, the claim having been assigned by her to the plaintiff. Trial in the Superior Court, without a jury, before Bond, J., who found for the defendant; and, at the request of the parties, reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Contract, for goods sold and delivered. Trial in the Superior Court, without a jury, before Bond, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for personal injuries. Trial in the Superior Court, before Fessenden, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Petition for a writ of certiorari, to quash the proceedings of the respondents in laying out and ordering the construction of a highway in Northampton. Hearing before Field, C. J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Bill in equity, filed June 15,1897, in the Superior Court, by Albert J. Hall and Thomas F. Scanlan, alleging the following facts. On May 9, 1887, the plaintiff Hall was the owner and in possession of certain real estate in Saugus, which on that date he mortgaged for $15,000 to one Eben Hutchinson, and the mortgage was recorded.</p> <p>The plaintiff Hall was the owner and in possession of certain other land lying in Saugus, which he also mortgaged to Hutchinson for $1,000, the mortgage being dated November 3,1888, and recorded; and also by a second mortgage he mortgaged the same land on the same day for $500 to Maud Hutchinson, the daughter of Eben Hutchinson, the mortgage being dated November 3,1888, and recorded. All of these mortgages were given for a valuable consideration, as therein set forth.</p> <p>On March 14,1891, the plaintiff Hall paid Hutchinson the full amount due upon all of the three mortgages, and received from Eben Hutchinson and Maud Hutchinson on that day discharges of the last two mortgages, which discharges were duly recorded on March 16, 1891; and Hutchinson promised to bring or to send to Hall the discharge of the first mortgage, together with the three mortgages and the notes thereby secured.</p> <p>In fact Hutchinson did not deliver to Hall the mortgages, or either of them, but at some time unknown to Hall assigned the first two mortgages, and caused the third mortgage to be assigned to the defendant bank, or to some person in its behalf, by deeds of assignment, which were never recorded; and about July 1, 1892, Hutchinson left this country for parts unknown.</p> <p>On July 8, 1892, the defendant began suit against Hall upon the notes secured by the three mortgages, and without demand or notice to him attached all his real estate, which was practically all of his property, for the sum of $20,000. At that time Hall learned for the first time that the defendant had possession of the notes and mortgages, all of which had at the time of the suit and attachment been paid in full.</p> <p>In consequence of such attachment, Hall was almost totally ruined. His business as a builder and dealer in real estate was broken up, and he was upon the verge of bankruptcy.</p> <p>In order to prevent his total ruin, and to save his business and property. Hall was obliged to make the best settlement of the suit that he possibly could with the defendant, and thereupon an agreement was entered into between the defendant and Hall, by the terms of which it was agreed that Hall should give to the defendant his promissory note for the sum of $2,250; that the defendant would assign, or cause to be assigned, to the plaintiff’s son, one Frank Hall, the first mortgage; that the possession of all the mortgages and notes should be given up by the defendant to Hall; that the defendant should discount for Hall his own notes or notes of his customers, either with or without collateral security, as might be arranged later, in order to put Hall in funds and to re-establish his business, which had been totally suspended for over four months in consequence of the attachment; and that the defendant would renew the notes and continue the arrangement for the benefit of Hall, to keep him in funds for the purpose of his business until such time as the improvement in the business situation should enable him to proceed in business without such assistance.</p> <p>In pursuance of this agreement the defendant did discount notes for the plaintiff Hall, and at one time it was arranged that the collateral then in the bank should be taken out and given to the plaintiff Scanlan, who should then indorse the notes of Hall, and that with such indorsement the defendant should discount Hall’s further notes, and continue the arrangement until the business situation should so improve as to make further continuance of the contract unnecessary for Hall’s accommodation.</p> <p>From time to time, in carrying out this agreement, Hall had to pay many of the notes given to the defendant, and at the time of bringing this bill there were in the bank but three notes given by Hall, all of which bore the indorsement of the plaintiff Scanlan. The defendant refused to renew either of the notes last mentioned, and brought suit upon the same against Hall and Scanlan, and attached their property in such suits, all of which are now pending.</p> <p>Scanlan indorsed the notes with the understanding and agreement that they were to be renewed and continued in accordance with the original agreement, as hereinbefore stated. The plaintiffs cannot set up such contract in defence of the actions at law, and the trial of such actions will involve the trial of this issue three times, and the plaintiffs are remediless at law.</p> <p>The prayer of the bill was that the defendant might be perpetually enjoined from enforcing payment of the notes by such actions, or either of them; that the defendant, pending the determination of the issues raised by this bill, be ordered to continue the actions upon the dockets of the court; that the defendant be ordered specifically to perform and carry out the contract originally made; and for further relief.</p> <p>The defendant demurred to the bill, assigning various causes of demurrer.</p> <p>The demurrer was sustained, and the bill dismissed ; and the plaintiffs appealed to this court.</p>

<p>Tort, for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Personal Injuries — Defective Coal-hole — Landlord and Tenant — Negligence — Action.</p> <p>The owner of premises occupied by a tenant, and which the owner has not agreed generally to keep in repair, is not liable to an action for personal injuries caused to a third person by falling into a coal-hole on the premises through the neglect of the tenant to fasten the cover, which itself is in good condition, although the hole is in a worn condition.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to the plaintiff by an explosion of powder. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion. ’</p>

Tort, for personal injuries sustained by the plaintiff while a passenger in a car operated by the defendant, on January 28,-1896. Writ dated February 12, 1896; the ad damnum being 120,000. The return of the deputy sheriff on the writ recited a service upon the defendant by serving on its assistant treasurer. Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.

<p>Contract, against the principal and sureties upon a replevin bond. The jury, acting under the instructions of Bond, J., returned a verdict for the plaintiff in the penal sum of the bond and interest, and that there was due the plaintiff for the breach of the condition of the bond the sum of one dollar. The plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Personal Injuries — Railroad—Action — Law and Fact.</p> <p>A lamp opposite where a female passenger in a railroad car was sitting blazed up, a bystander and then the conductor tried unsuccessfully to fan out the flame with their hats, and she changed her seat to the other end of the car, next to the baggage car. Then a brakeman tried to smother the flame with oily waste, which caught fire and blazed, part of it dropping on the floor, the flames came out underneath the lamp, the brakeman rushed for the rear end of the car, and it looked as if the car were on fire. Thereupon the passenger rose to go into the baggage car, and in doing so struck her arm, and was injured. In an action for the injury, an expert on lamps, who was a passenger, testified that the lamp needed more care than ordinary lamps, that the means used to put out the fire were dangerous, and that with proper skill the trouble could have been avoided. Held, that the case was rightly submitted to the jury.</p>

<p>Personal Injuries — Master and Servant — Negligence — Assumption of Risk — Action.</p> <p>A workman, who, standing on a ladder, the top of which rests against the front of one of several boilers and the bottom upon the brick floor of the room, while engaged in cleaning the face of the boiler, is injured by falling from the ladder to the floor, cannot maintain an action for the injury, either at common law or under the employers’ liability act, St. 1887, c. 270, on the ground that the floor was uneven and ridgy, causing the ladder to slip, if the floor is then in the same condition as it was when he entered the defendant’s service, but he assumes the risk of working upon it as it was; and if, while working there, the defendant’s engineer in charge of the boilers led him to believe that a new floor would be put in, that would not affect the defendant’s liability.</p>

Tort, for breaking and entering the plaintiff’s close in Quincy, and removing a quantity of gravel, sand, loam, and earth. Writ dated April 15, 1897. Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, in substance as follows. On January 8,1898, the defendant filed an offer of judgment, in accordance with Pub.

<p>Laying out Way—Petition — Order of County Commissioners — Statute — Effect of Action on Former Petition.</p> <p>Under a petition for the laying out of a new way, running southerly from a certain street, and in extension of an old way, and containing no prayer for the alteration of the old way, county commissioners may lay out southerly from the street mentioned a new way, which includes a portion of the old way taken lengthwise.</p> <p>The fact that county commissioners, while a petition for the laying out of a new way was pending before them, acted upon a similar but less extensive petition, and ordered the way therein prayed for, but there was a failure to do anything towards the construction of the way within the two years mentioned in Pub. Sts. c. 49, § 88, does not prevent the commissioners after that period from proceeding under the pending petition.</p>

Contbact, for an alleged breach of a contract to sell and deliver a quantity of lumber. ■ Trial in the Superior Court, without a jury, before Dunbar, J., who excluded certain evidence; found for the defendants; and, at the plaintiff’s request, reported the case for the determination of this court. If such exclusion of evidence was right, the finding was to stand; otherwise, a new trial was to be granted. The facts appear in the opinion.

<p>Tort, for illegal arrest and imprisonment of the plaintiff by the defendants, while acting as police officers in Lowell. The answer alleged that on or about August 15, 1896, the defendants, in consequence of complaints made to them, “ went to the house where the plaintiff and her husband reside, at about eleven o’clock in the evening; found a large crowd collected upon the sidewalk in front of said house, and heard violent, profane, and obscene language used by some person within said house; that thereupon defendants entered the house by an open door, and, finding plaintiff and her husband therein drunk and making the noise and disturbance aforesaid, arrested the plaintiff and her said husband, and retained them in custody until the following morning, when they were brought before the Police Court of Lowell, charged with the crime of drunkenness, of which crime they were adjudged guilty upon their several pleas of guilty.” The answer also, except as above admitted, set up a general denial.</p> <p>At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the defendants ; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p> Authority of Treasurer of Co-operative Bank to accept Order. </p> <p>There is nothing in the nature of the business to be done by co-operative banks, or in the express provisions of the statutes, which indicates that their treasurers can create liabilities on the part of such corporations by their signatures to commercial paper, or by their indorsement or acceptance of such paper; and where, in an action against a co-operative bank as the acceptor of an order, it is plain that its treasurer had no implied authority by virtue of his office, and the bylaws and the oral testimony tended strongly to show that he had no actual authority to bind it by his acceptance of the order, a ruling requested that the plaintiff is not entitled to recover should be given.</p>

<p>Tort, for the conversion of five shares of stock. Answer, a general denial. Trial in the Superior Court, without a jury, before Sheldon, J., who found for the plaintiff, assessing damages in the sum of $1.81; and the plaintiff alleged exceptions, which appear in the opinion.</p> <p>The case was argued at the bar in November, 1898, and after-wards was submitted on briefs to all the justices.</p>

<p>Bill in equity, filed December 5, 1896, and amended April 20, 1897, in the Superior Court, by the plaintiff, in behalf of himself and other shareholders in the United States Steam and Street Railway Advertising Company, a corporation, against the corporation, Lavinia T. Carleton, executrix of the will of William F. Carleton, and others, directors of the corporation, not material to be named, for an account of the sum alleged to be due the corporation from the estate of Carleton by reason of his fraudulent diversion and misappropriation of its property, and to obtain payment of the same from his estate. The defendants demurred to the bill, assigning various grounds of demurrer. At the hearing, the demurrers were sustained, and a decree was entered, dismissing the bill; and the plaintiff appealed to this court. The facts appear in the opinion.</p>

<p>Photograph — Evidence admitted made harmless by Instructions to Jury.</p> <p>Whether a photograph is instructive to the jury is a preliminary question, to be decided by the presiding justice before he admits it as evidence in the cause.</p> <p>At the trial of a bill in equity brought by the heirs of a decedent, alleged to have been an insane person, for the cancellation of certain agreements entered into by him, evidence admitted subject to exception by the plaintiffs that the administrator of the estate of the deceased had made no objection to the validity of the transactions is made harmless by rulings that the rights of the plaintiffs were not affected by the administrator’s conduct.</p>

<p>Contract — Mortgage — Evidence — Construction of Agreement — Exceptions.</p> <p>In an action for the proceeds of some hay alleged to have been converted, the defendant having acted in good faith under a mortgage from A., who, before the plaintiff bought the land, had an agreement with the owner for a conveyance of it, an indenture between A. and a third person, made after the plaintiff’s purchase and assented to in his name by his attorney, by which A. agreed to sell the farm on certain conditions, the plaintiff testifying that he did not know of the agreement, and there being no evidence of the attorney’s authority, is properly excluded, as is also evidence of the attorney’s talk in connection with it.</p> <p>In an action for the proceeds of some hay alleged to have been converted, the defendant having acted in good faith under a mortgage from A., who, before the plaintiff bought the land, had an agreement with the owner for a conveyance of it, the plaintiff testified that he never knew of this agreement; and an agreement between the plaintiff and A. put in evidence provided that, if the plaintiff, "by virtue of an agreement with said A.,” should purchase the land, the plaintiff would sell to A. at an advanced price, which price A. promised to pay. The judge ruled that the words quoted meant an agreement of the plaintiff with A., and refused to rule that the words were evidence that the plaintiff knew of A/s earlier agreement with the owner. Held, that, whatever the words meant, they could not convert the contract between the plaintiff and A. into a mortgage.</p> <p>No exception lies to the refusal to give an instruction in the language requested, if it is given in substance.</p>

<p>Common Lam — Equity — Constitutional Law — Easement — Encumbrance — Restriction — Statute.</p> <p>St. 1889, c. 442, entitled “ An Act to provide for determining the validity, nature, or extent of certain encumbrances upon titles to real estate,” is not unconstitutional on the ground that it fails to provide for a trial by jury. Proceedings under the statute are rather equitable than legal, and if the statute applies to cases where there is an issue of fact it implies that the trial is to be had in such manner as settled practice shows to be proper.</p> <p>An easement is a “ restriction ” and “ encumbrance,” within the meaning of St. 1889, c. 442, entitled “ An Act to provide for determining the validity, nature, or extent of certain encumbrances upon titles to real estate.”</p>

<p>Petition, against the board of aldermen and the superintendent of streets of the city of Boston, for a writ of certiorari to quash alleged erroneous assessments of taxes,, made under St. 1897, c. 419.*</p> <p>The petition alleged that the petitioner was a citizen and a taxpayer of Boston, and was at the time of the acts thereinafter described the owner of several estates enumerated in an exhibit annexed; that the board of aldermen, on April 4, 1898, acting or pretending to act under the statute, passed the following order: “ That all streets or portions of streets lying within the territory in the central portion of the city bounded by a red line on a plan marked ‘ Plan of Street Watering, Benjamin W. Wells, Superintendent of Streets, March 23,1898,’ and filed in the office of said superintendent, to be watered in whole at the expense of the abutters, and that all streets and portions of streets in the remainder of the city, or lying outside the said red line on said plan be watered in whole at the expense of the city ” ; and also on April 25,1898, passed the following order: “ That the superintendent of streets be authorized under the provisions of chapter 419 of the acts of 1897 to determine the amount of the assessment for street watering to be laid upon the estates abutting upon the streets included within the part of the city designated to be watered by assessment, by the order approved April 18,1898 both of which orders were approved by the mayor.</p> <p>The petition further alleged that all the estates belonging to the petitioner described in the exhibit lie within the territory in the central portion of the city bounded by the red line on the plan above referred to, and are of various sizes, shapes, lengths of frontage, depths, and values, and have upon them buildings of various degrees of cost, and adapted for various uses; that certain of the lots are corner lots, and certain are deep lots with narrow frontage, and others are shallow lots with extensive frontage; that subsequently to the passage of these orders the superintendent of streets caused to be made a list of streets which the board of aldermen had determined should be watered, which list specified each estate abutting upon such streets or portion thereof, the number of linear feet of each estate upon such street or portion thereof, the amount per such linear foot of the assessment so authorized, and the amount of such assessment on each estate, and certified and committed such list to the board of assessors of taxes of the city; that the board of assessors assessed and included in the tax list and warrant for the municipal year then current an assessment upon each of the petitioner’s estates as specified in the list committed to the board by the superintendent of streets; that the rate to be assessed upon each linear foot of frontage, as specified by § 2 of the statute, had never been estimated and determined by the board of aldermen, but had been illegally estimated and determined by the superintendent of streets; that such superintendent had illegally attempted to fix, and had fixed, the rate at five cents per linear foot of frontage, and determined the amount of the assessments on the petitioner’s estates by such illegally determined rate; and that the assessments on the petitioner’s several estates were each and all illegal and invalid, for the following reasons:</p> <p>“ First. Because the rate had never been estimated and determined by the board of aldermen, as required by § 2 of the statute.</p> <p>“ Second. Because the method provided by the statute of determining the rate by assessing upon each linear foot of frontage was unreasonable and unjust, and therefore unlawful.</p> <p>“ Third. Because the division made by the board of aldermen between that portion of the streets in the city where the cost of watering should be paid by the city, and that portion where the cost of watering should be assessed upon the abutters, was unreasonable and unjust.</p> <p>“ Fourth. Because the statute provided for no revision of the assessment, either by abatement or appeal or trial by jury.”</p> <p>The copy of the record' of the proceedings of the board of aldermen annexed to its answer, besides containing the two orders set out in the petition, contained a communication from the mayor to the board, dated September 12,1898, recommending an appropriation for street watering, and an order of the board making such appropriation.</p> <p>The answer of the superintendent of streets alleged that he was designated by the board of aldermen, under the provisions of § 3 of the statute, by an order of the board, to make, or cause to be made, within a reasonable time after the first day of May, 1898, a list of the streets or portions of streets which the city had determined should be watered, which list should specify each estate abutting upon such street or portion thereof, the number of linear feet of each estate upon such street or portion thereof, the amount per such linear foot of the assessment so authorized, and the amount of such assessment on each estate, and to certify and commit such list to the board of assessors of taxes of the city; that he attended to such duty as the agent designated by the board of aldermen, and made a return of his doings under such order to the board through the mayor; and that his acts and doings in the premises as such agent were approved by the board.</p> <p>Hearing before Knowlton, J., who reported the case for the consideration of the full court; such order to be made as law and justice might require.</p>

<p>Will — Gift to Town, in Trust for Charity — Town, after a Part of it is set off to another Town, still entitled to Fund.</p> <p>A testator, who died in 1887, gave by will dated in 1885 fifty thousand dollars to the town of S., the income “to be applied for the support of aged men and women, inhabitants of said town, in indigent circumstances and of good moral character, being persons approved by the selectmen as worthy of such provision. It shall not be considered as in lieu of the legal provision for paupers,” etc. The will then directed the establishment of a “ Home for the Aged,” unless such building be furnished by the town or other friends of the aged poor. In 1886, by St. 1886, c. 284, almost the whole of the business portion of the town of S., including the place where the testator was born, was transferred to the town of A. Held, that the town of A. had no claim to the fund, and that the town of S. was entitled to receive it.</p>

<p>Bill in equity, filed November 20, 1896, in the Superior Court, against Charles E. Rice and Edward E. Rice, copartners as C. E. and E. E..Rice, and others not material to be named, to reach and apply property in payment of damages for an alleged breach of a contract of employment. Hearing before Sheldon, J., who ordered a decree to be entered dismissing the bill; and, the plaintiff having appealed, reported the case, at the request of the parties, for the determination of this court. The facts appear in the opinion.</p>

<p>Trademark — Injunction — Equity.</p> <p>A manufacturer of watches in Waltham will be enjoined, upon a bill in equity by another and the first manufacturer there, from using, in advertising his watches, the combined words “ Waltham Watch” or “Waltham Watches,” it having been found at the hearing that the word “ Waltham,” originally used by the plaintiff in a merely geographical sense, by long use in connection with his watches had come to have a secondary meaning as a designation of the watches which the public had become accustomed to associate with the name; and will be enjoined further against using the word “ Waltham ” or “ Waltham, Mass.,” upon the plates of his watches without some accompanying statement which shall distinguish clearly his watches from those made by the plaintiff, it having been found at the hearing that a deceitful diversion of the plaintiff’s custom is the effect and intended effect of the words in question, that it is practicable to distinguish the defendant’s watches from those of the plaintiff, and that it ought to be done.</p>

<p>Unrecorded Agreement to give a Chattel Mortgage — Statute.</p> <p>As against a purchaser of the goods, an unrecorded agreement to give a chattel mortgage stands no better than an unrecorded mortgage, which, when the goods remain in the possession of the mortgagor, is void as against any person other than the parties thereto by the express words of St. 1883, c. 73.</p>

<p>Two actions, the first being replevin of certain personal property, consisting of the stock in trade in a grocery and meat market in Malden, and the second being tort for the conversion of other articles of property used in the business. Writs dated March 6, 1897. The cases were tried together in the Superior Court, before Fessenden, J., who directed the jury to return a verdict for the defendant in each case ; and the plaintiffs alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, for an illegal arrest and imprisonment. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the defendants ; and - the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Will — Intention of Testator not to die Intestate as to any Part of his Property.</p> <p>A testator who died in 1894 leaving a widow and three children, the latter of unsound mind, by will dated in 1875 appointed his wife executrix, gave eacli child a small pecuniary legacy, and directed that his house and land should not be sold during the natural life of his wife, but be held for herself and their cliildren. He also directed that no part of the real estate should be sold during the life of his wife, unless found necessary for the support of his wife and family. He further declared that, having confidence in his wife and knowing that she would consider the welfare of their children, he gave her all his estate, botii real and personal, the income thereof to be expended for her own support and for the maintenance of the home “ for herself and our children during her natural life.” The widow, who died in 1897, the three children surviving her, by will dated in 1896 gave all her property in trust, the net income to be used for the support of the children, with remainder after the death of the last survivor to the trustee in fee, etc. Held, that the testator intended to give his wife absolutely the entire estate of which he died possessed, and that he did not intend to die intestate as to any' part of it, and did not do so.</p>

<p>Land Damages — Evidence.</p> <p>Land taken by the city of L. was situated a few hundred feet from the boundary line between L. and the town of C., and its general character was not materially different from that on the opposite side of the line in C. A. had lived and been an assessor of taxes in C. for many years. He had not dealt in real estate in L., nor near the land taken, but had kept himself informed of values in that section. He knew of no sales in that vicinity before the land was taken, but knew of two sales in the two following years of lands several hundred feet away from that land. He was a contractor and grader, doing business mostly in L., living within five hundred feet of the boundary line, and owned land within fifteen or sixteen hundred feet of the land taken. Held, upon a petition for an - assessment of damages for the land taken, that it could not be said that the refusal to allow A. to testify to the value of the land was erroneous.</p> <p>At the trial of a petition for an assessment of damages for land taken by a city, if the petitioner contends that the value of the land is greatly enhanced by the presence in it of extensive deposits of building sand, for- which there was a steady and continuous demand, and a witness for him is allowed to testify to the value of the sand, it is competent for the respondent to cross-examine the witness for the purpose of showing that the sand is of less value than that stated by him.</p> <p>A memorandum, prepared by the owner of land, showing his valuation of it, and given by him to an assessor of taxes for the city in which the land is situated, during a conversation relating to an abatement of taxes on the land, the valuation so shown being much less than that sought to be established by the owner at the trial of a petition against the city for an assessment of damages for taking the land, is admissible in evidence at such trial.</p> <p>Át the trial of a petition for an assessment of damages for land taken by a city, evidence of an attempted- sale of the land, just after the taking, by the petitidner, who was then unaware of such taking, for a price much less than the value of the land sought to be established by him at the trial, is properly admitted, he being allowed to give his reasons for making the sale, and the jury being instructed that they might consider the fact of the sale and the price received one piece of evidence, “ to be taken along with all the evidence in the case,” and subject to such weight as they thought they ought to give to the explanations made by the petitioner as to the reasons which induced him to make the sale.</p> <p>If, at the trial of a petition for an assessment of damages for land taken by a city, a witness called by the respondent testifies as an expert in regard to the value of the land, placing it lower than that sought to be established by the petitioner, • no exception lies to the exclusion of the question, on cross-examination, as to the prices obtained by him for land which he sold in the year of the taking, it appearing that his land was situated in another part of the city, across a stream of water, about a mile away from the land taken, and reached by a different line of street railway cars and by different streets.</p>

<p>Personal Injuries to Motorman of Street Car — Negligence of Superintendent.</p> <p>In an action for personal injuries occasioned to a motorman after the derailment of his car, there was evidence that the defendant’s superintendent gave an order to the motorman which placed him in a dangerous position if a car should come forward on the other track; that he then, while the motorman was in this position, gave an order to the motorman on a car on the other track, standing at a distance of six or eight feet from the front end of the plaintiff’s car, to come ahead; and that as the car did so the plaintiff, while raising himself from a stooping position, was caught between the guard rails of the two cars and was injured. Held, that the evidence was sufficient to warrant the jury in finding that the superintendent was guilty of negligence which contributed to the injury.</p>

Tort, for personal injuries sustained by the plaintiff through an alleged defect in a highway in the defendant town. At the trial in the Superior Court, before Sheldon, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

<p>Partnership — Equity Practice — Findings of Master — Appeal from Decree.</p> <p>Upon an appeal from a decree of a justice of the Superior Court sitting in equity on questions of fact arising upon exceptions to a master’s report, his findings will not be reversed unless they clearly appear to be erroneous.</p>

<p>Probate Bond — Action — Defence of Insufficiency of Assets — Judgment — Principal and Surety — Administrator's Account— Costs — Execution.</p> <p>To entitle an administrator to defend an action on his probate bond upon the ground of insufficiency of assets, there must be an inventory filed and a settlement of his account in the Probate Court.</p> <p>If the defence set up by the surety in an action upon an administrator’s bond, that the assets of the estate had been exhausted in the payment of charges and preferred claims, was pleaded and relied upon in an action against the administrator by the person for whose benefit the action on the bond is brought, the judgment there obtained is conclusive upon the surety; and, there having been no settlement of the administrator’s account, although one has been filed, it is not open to the surety to contend that the answer of the administrator in the original action was not a proper defence.</p> <p>In an action upon an administrator’s bond for the benefit of a creditor of the estate by whom a judgment has been recovered against the administrator, who has not settled his account, the defendant surety is not entitled to a ruling that, “ if the plaintiff’s original claim was a preferred claim against the estate, the plaintiff could ’ only recover the pro rata amount which the claim bore to the total amount of preferred claims, including the charges of administration, in the assets of tlie estate.”</p> <p>The costs in an action against an administrator by a creditor of the estate, who has recovered a judgment therein, are properly included in the amount for which execution should issue in an action upon the administrator’s bond for the benefit of such creditor.</p>

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. At the trial in the Superior Court on a count in the declaration at common law, before Sheldon, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Person assuming to act as Insurance Agent — Statute— Constitutional Law.</p> <p>Sections 87 and 98 of St. 1894, c. 622, which impose a penalty on a person assuming to act as an insurance agent without license therefor, as provided by law, apply to cases where insurance is effected on property which is not within the Commonwealth, and the sections are constitutional.</p>

<p>Promissory Note — Parties liable as Successive Indorsers.</p> <p>Where parties indorse their names on a promissory note before its delivery for the benefit of the maker, and the maker, who is also the payee, afterwards indorses his name above theirs before the note is delivered, their rights as to each other, in the absence of any special agreement, are those of successive indorsers.</p>

Tort, for alleged false and fraudulent representations in the sale of a horse.

<p>Devise and Legacy — Heir at Law — Termination of Trust.</p> <p>A testator by his will directed that there be deposited with a certain corporation a sum named for each of his three daughters, the income to be paid to each for life, and upon the decease of ea:h the deposit to be paid over to her children then living, and in default of any lawful issue then living of such daughter to be paid over “ to my heirs at law, as part of the residue of my estate, in the manner hereinafter directed concerning the same.” He made a similar provision for each of his two sons, the fund, in default of issue, to be paid over “ to my heirs at law, as hereinafter provided.” One of the sons died after the testator’s death, and his share of the fund was distributed according to a former decision of this court. The testator also directed that the residue of his estate be divided into so many equal shares that there might be one share set aside for “each of my children then living,” giving one share to each of his sons absolutely, and one share for each of his daughters in trust, to pay the income to her during life, and on her decease to convey the trust property to her issue, and in default of issue to convey the same “ to my heirs at law, to hold the same to them, their heirs, executors, administrators, and assigns forever.” The will also contained the following clause: “It is my will that the cesiuis que trust, to whom income is payable under this will for their respective lives, or for any less period, are not to have or exercise any right or power of disposing of their respective interests, title, or property in their respective trust estates by will or testamentary appointment, nor to sell, pledge, assign, or transfer the same; it being my intention that said annuitants or cestuis que trust shall take an interest for life or term of years, as the case may be, with remainder to their or my heirs respectively, as the case may be.” E., one of the daughters, died after the testator’s death, unmarried and without issue, leaving a will, under which C. was the executrix and residuary legatee. Before the death of E. the interest of her deceased brother had been sold to her and to the three other surviving children of the original testator in equal shares. Held, that those persons took the remainders given to the testator’s “ heirs at law " who were his heirs at his decease; that C., as executrix and residuary legatee, and aside from the purchase of the share of the deceased son, was entitled to receive a one fifth part of the fund invested for E., and no more; that the share of the residue held in trust for E. by the trustee before her death was to be divided into four equal shares for the benefit of her surviving brother and two sisters and C.; and that the shares of the two sisters, as well as those of the brother and C., were to go to them absolutely, free of trusts.</p>

<p>Lease — Guaranty — Condition —■ Waiver.</p> <p>Even if, in a guaranty of payments on a lease, a stipulation for an assignment thereof is a condition concurrent with the guarantor’s undertaking to pay, an action on the guaranty is not defeated by a finding that the condition was waived.</p>

<p>Loss of Life — Railroad — Gross Negligence — Law and Fact — Action.</p> <p>Where, in an action against a railroad corporation under Pub. Sts. c. 112, § 218, it is shown that the injured person was guilty of “ gross or wilful negligence ” which contributed to the injury, the case is rightly taken from the jury.</p> <p>Two railroad tracks, one being the southerly used for inward and the other for outward trains, crossed a highway at grade. As an outward bound train approached in the evening, the crossing was guarded by a man who was swinging a lantern, and the head-light on the engine was burning. The distance between a point southerly of the nearest rail of the inward track, beyond which there was an unobstructed view towards the train for a mile, and the southerly rail of the other track was twenty-eight feet. A person who was familiar with the locality approached the railroad from the south, crossed the inward track, walking at a very moderate rate, with his shoulders slightly stooped, stepped upon the outward track, and then, seeing the train, tried to step back, but was struck by the engine and killed. Held, in an action against the corporation under Pub. Sts. c. 112, §§ 212, 213, for causing his death, that, as matter of law, he was guilty of gross negligence which contributed to the injury; and that the action could not be maintained under either section.</p>

<p>Bill in equity, filed May 27, 1893, in the Superior Court, against Lafayette W. Goodell and Wesley M. Goodell, to restrain them from disposing of certain real estate in Belchertown, to set aside the conveyance of the same, and for other relief. At the hearing, a decree was entered for the plaintiff; and the defendants appealed to this court. The facts appear in the opinion.</p>

Bill in equity, filed November 29, 1897, and amended subsequently, against Abram C. Paul, George F. Walker, George A. Wales, Amasa E. Lincoln, Benjamin F. Smith, and Charles G. Smith, to restrain the first three defendants, as water commissioners of Stoughton, from using land purchased from the defendant Lincoln for a water supply, and to set aside the sale of the land and the contract made with the defendants Smith for the construction of water works.

Bill in equity, filed December 10, 1897, and amended subsequently in the Superior Court, by Joseph U. Kimball, William Connon, and Charles S. Herrick, against the Commonwealth Avenue Street Railway Company, Charles H. Richardson, Leonard D. Ahl, and Adams D. Claflin, to enforce a restriction in deeds of land in Newton. Hearing before Mason, C. J., who dismissed the bill, with costs; and the plaintiffs alleged exceptions. The facts appear in the opinion.

Replevin of three printing presses.- Trial in the Superior Court, before Hardy, J., who allowed a bill of exceptions, in substance as follows. The following facts appeared in evidence.

<p>Contract, to recover the amount of eight assessments upon the defendants as policy holders 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. The defendants are residents of Illinois.</p> <p>Prior to January 1, 1895, the plaintiff issued eight policies of insurance to the defendants, on property situated in Illinois, in which State the plaintiff was prohibited from transacting business without complying with certain provisions of the statutes of that State, with which it did not comply. 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 23, 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 as appeared in the schedules annexed to the decree. By such schedules it appeared that the defendants were assessed, on eight different policies, the total sum of $332.06. 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 defendants on June 30, 1896, demanding payment thereof. The office of the plaintiff was in Boston, where it did its business, and it had no office or agent in the State of Illinois, and none outside of Massachusetts except in the State of North Carolina, unless it appears from the agreed facts that it had an agent in Illinois, and there did business.</p> <p>Blake and Taylor were the managers of the plaintiff, receiving for their services a certain per cent of the gross receipts, from which they paid all expenses. E. T. Marshall and Company were insurance brokers in Chicago. Before any of these policies issued, and while Blake and Taylor were the general managers of the plaintiff, they solicited Marshall and Company to forward applications for insurance to the plaintiff, and agreed to pay them a commission on the premiums of all policies issued by the plaintiff on such applications. The plaintiff issued many policies to residents of Illinois upon property there situate, upon application of Marshall and Company.</p> <p>The defendants, wishing insurance upon certain of their property in Chicago, notified Marshall and Company, who thereupon made application to the plaintiff by mail for insurance for the defendants upon properties covered by the policies in question. Before forwarding the applications in each case, Marshall and Company and the defendants agreed upon all the terms, and the rate at which the policies should be written, if the applications were accepted. Blake and Taylor had an open account with Marshall and Company, and in this account the latter was charged with the premiums upon all the policies issued and was credited with a commission on all such premiums, which were paid by Blake and Taylor out of the commission which they received from the plaintiff for their services as managers. When the applications were received in Boston by the plaintiff from Marshall and Company, they were acted upon and accepted, and policies were written, dated and executed by the proper officers in Boston in accordance with the terms of the applications, and sent by mail to Marshall and Company, to whom the premiums were then charged by Blake and Taylor. Marshall and Company subsequently delivered the policies to the defendants in Chicago, having first pasted on them a sticker on which were the words “ Marshall & Co., Insurance, 210 La Salle St., Chicago.” Marshall and Company made no charge to the defendants for services, and the defendants have never paid them for services in these matters, but paid them in Chicago the amount of the premiums. The defendants did not appear before the auditor or the court at any of the hearings on the petitions for the ratification of the assessment.</p>

<p>Three actions oe contract, the first being upon two promissory notes, the second upon two checks, and the third upon one check. The cases were tried together, in the Superior Court, before Hammond, J., who directed the jury to return a verdict for the plaintiff in each case; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Bill m equity, filed July 6, and amended October 14, 1897, in the Superior Court, against Bernard McGuinness, Albert M. Armstrong, and Albert E. Armstrong, for the sale of certain personal property, alleged to have been owned in common by Sumner Fairbanks, from whom the plaintiff derived his title, and the defendant Albert M. Armstrong, and to have been mortgaged fraudulently by the latter to the defendant McGuinness ; and for other relief. Hearing before Hoplcins, J., who entered a decree dismissing the bill, and, the plaintiff having appealed therefrom, reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Waterworks — Statute— Taking of Land — Assessment of Damages — Evidence.</p> <p>The provisions of St. 1894, c. 108, entitled “An Act to confirm a certain agreement between the city of Boston and the town of Soutliborough relating to the building of a water basin in said town, and to authorize the execution of the same,” must be followed in assessing damages for the taking of lands under it, and not the provisions of any previous statute.</p> <p>The St. 1894, c. 108, was entitled an act to confirm a certain agreement between a city and a town relating to the building of a water basin in the town, and to authorize the execution of the same, and authorized the taking of all lands and water rights which the city deemed necessary to carry out the agreement. An instrument of taking recited that the city, by its water board, acting under the power conferred by two earlier statutes, by an agreement with the town, by St. 1894, c. 108, and all other power and authority enabling it, took for the purpose of the water supply of the city certain described lands and water rights in the town, “ all of which lands and water rights said board deems necessary to take in carrying out said agreement.” Held, that the lands were taken under St. 1894, c. 108; and that evidence that it was not necessary to take the lands to carry out the contract was rightly excluded.</p>

<p>Personal Injuries — Railroad — Master and Servant — Negligence — Action — Notice of Injury — Service on Corporation — Employers’ Liability Act.</p> <p>If a person employed by a railroad corporation as a car cleaner takes her place at the proper time in a passenger car for the purpose of doing her work, it being a part of her duty to remain seated in the car until it was attached to the “regular cleaning train,” which is on another track, and a locomotive engine is ' coupled to the car which is then hauled on to the other track, where the engine is reversed and the car is pushed back at an unusual speed and with such force as to collide with the cleaning train, breaking the platforms of the cars and throwing her from her seat near the middle of the car and injuring her, there being an engineer in charge of the engine and a brakeman standing on the front platform of the car as it was being pushed, there is evidence of negligence on the part of the person in charge of the train which will enable her to maintain an action against the corporation for her injury, under the employers’ liability act, St.. 1887, c. 270.</p> <p>Evidence that a notice that a person in the employ of a railroad corporation had been injured was taken to the office of the general superintendent in its principal station, and, inquiry being made for him and he being absent, was left for him there with a person whose dress and manner indicated that he was a clerk in the office, will warrant a finding that due notice of the time, place, and cause of the injury, under St. 1887, c. 270, § 3, was given to the corporation.</p> <p>Without reference to the modes of service prescribed by the law in ordinary cases when notice is to be given, it is enough, under the employers’ liability act, St. 1887, c. 270, if a notice in proper form from the employee comes into the hands of the employer within thirty days after the accident.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the fall of a quantity of earth and gravel which he was engaged in excavating, while in the employ of the defendants. The declaration contained counts at common law, alleging negligence of the defendants, and counts under the employers’ liability act, St. 1887, c. 270, alleging negligence of the defendants’ superintendent. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The evidence showed that the defendants were excavating the cellar of the Union Station on Federal Street in Boston, in February, 1897 ; that the work had progressed so that on the side where the accident to the plaintiff occurred the excavation had reached the depth of nine or ten feet, and had formed a wall or bank of that depth about seventy-five feet long; that along the top of that bank the ground was frozen to a thickness of twelve to twenty inches; that the soft earth below this frozen crust was dug out and loaded into carts, and from time to time the frozen crust was broken off by driving wedges into it; that the custom was to keep the men loading the carts at their work all the time the wedging was going on, and the men doing that work usually gave notice to the men below by saying, “ Look out below,” when the frozen crust was about to fall; that no warning of any kind was given to the plaintiff of the fall of the frozen crust which injured, him, because it went off so suddenly and unexpectedly that the men wedging it off could not give a warning; and that one O’Brien was the superintendent over this work and the men, whose sole or principal duty was that of superintendence.</p> <p>The plaintiff testified, in substance, that he was a common laborer, about forty-six years old; that on February 1, 1897, he was working for the defendants, picking and shovelling to load teams in the cellar of the Union Station, opposite Essex Street in Boston; that there was a line of teams, two-horse tip-carts, backed up to the bank, which was about ten feet high, so that their tail ends were three or four feet from the bank, and placed about two feet apart; that he was engaged in loading one of these teams, and was about four feet from the bank on the off side of the tail end of the cart, having in his hands a lump of dirt weighing about one hundred pounds, and intending to throw it over the side into the cart, when the frozen bank hanging overhead came down upon him and caused the injuries complained of; that he had no knowledge of what was going on at the top of the bank; that he did not know just before the accident that men were engaged there in wedging off the bank; that he was obliged to keep closely to his work, and if he looked around or stopped from his work he would be discharged by the superintendent; that he had been at work in that cellar about a month before the accident; that from where he stood he could see men on the bank, but could not see what they were doing; that his height was about five and a half feet; that when from time to time along this bank the frozen earth was wedged off, there used to be this notice given, “ Look out below ”; that at the time when this bank fell no such notice was given, nor any signal or warning; that when the bank came down upon him his back was turned toward the bank; and that he never received any instructions from the superintendent with respect to looking out for the bank.</p> <p>On cross-examination, the plaintiff testified, in substance, that from the previous December to the day of the accident he had been at work digging, picking, and filling carts at this bank; that during this time parts of the frozen bank were thrown down, and the men on the bank who wedged it off always warned him, except in this instance; that he expected them to warn him ; that O’Brien had a hundred men under his charge scattered over this cellar and bank, which covered a number of acres; that on the same day men on the bank were cutting it on the other side of him, and the bank had fallen there during that day; that he expected the frozen bank over him would come some time, but he did not know what time it would come, because it had been dug under some distance; that he was not paying any attention to the bank, and had not been during his work there; that he and all the workmen understood that the rule was that they should be notified by the men on top of the bank when it would break down ; that there was no other way to notify them; and that the lump of earth weighing about one hundred pounds which he was lifting into the cart at the time of his injury was frozen, and was a piece thrown down some time before.</p> <p>Michael Murphy, called as a witness by the plaintiff, testified that he was a laborer, and in February, 1897, was working for the defendants at the Union Station on Federal Street; that at the time of the accident he and another man were upon the bank opposite where the plaintiff was working below, working with large iron wedges, about twenty inches to two feet thick, driving the wedges down into the bank; that the bank was dug underneath about three or three and a half feet; that they first drove the two wedges in the middle of the bank about four feet from the outer edge, and then drove one wedge on one end and another wedge on the other end, each about two feet from the edge of the bank, and standing about two feet back from those wedges he and the other man each struck the wedges, and the bank gave way before they knew anything about it, and broke down; that O’Brien, the superintendent, directed them to do this work; that on the side where the witness was working the bank was about seventy-five feet long; that there was a string of carts in the cellar nine or ten feet below this bank; that the plaintiff was working underneath where he was, shovelling into one of the carts, opposite the widest part of the bank; that the frozen earth which fell upon the plaintiff weighed about a ton ; that he never received any instructions from the superintendent respecting the giving of any notice to the men below; that the only direction from the superintendent was to go up there and drive the wedges; that he and the other man were the only men doing that work upon the bank; and that at the time this bank fell no outcry or notice was given to the men below by himself or the other man.</p> <p>On cross-examination, the witness testified that he had been working at this place four or five weeks, sometimes on the bank and sometimes digging below; that the excavation covered a large territory, the section where he was working being about seventy-five feet long, which was one section; that O’Brien had charge of at least fifty men, and was always in a great hurry to have the excavation done; that the earth underneath the frozen part was soft, easy digging; that the frozen part detached by these wedges put into it was thrown down to be put into teams; that when he was at work upon the top of the bank on the day of the accident he knew that they were breaking off the bank for the purpose of having it fall down to be put into the carts, that men were beneath digging, and that when they detached a part of this frozen mass and it fell it would go down where men were digging and filling the carts ; that there was nobody there except himself and the other man to give any signal when the bank was to go off and fall among the workmen, and nobody gave him any instructions about it; that he very often heard warnings given whenever the men who were breaking down the bank noticed that it was going; that when the bank started at the time of the accident he did not say anything, because the bank came down before they knew anything at all about it.; that when he was hitting the wedges he was standing about four and a half feet from the edge of the frozen mass; that the accident happened about half past two o’clock; that he had been working all the previous part of the day on this bank, breaking off parts of it from time to time; that several other men besides the plaintiff were loading teams there, backed up about three feet from the bank; that during that day they did not break away a great many pieces, because they were hard to break; and that they might be three hours at one bank before they broke it down.</p> <p>On re-direct examination, the witness testified that the breaking down of the bank was not going on all the time at one place, but would be at one place at one time and at another place at another time; that it might be once a day or three times a day in the same place, according to the progress of the undermining by picking and shovelling at any place along that bank; that on the day of the accident he was engaged about an hour in wedging off the frozen earth which fell down; and that the superintendent, on the day of the accident, directed him to take a sledge and a couple of wedges, and go up on the bank breaking down the frost wherever there was need of breaking it down, and that they followed that direction.</p> <p>Dudley Joyce, called as a witness by the plaintiff, testified that he was a laborer, and at the time of the accident was alongside of the plaintiff, loading the same team; that he was a little farther from the bank than the plaintiff was; that there was no notice of any kind of the coming down of this bank; that the bank that came down was a piece three feet wide and eight or nine feet long, and when broken up filled a double team full; and that he never received from O’Brien any instructions respecting what he should do as to looking out for the bank.</p> <p>On cross-examination, the witness testified that during the time that one team was going out and another was coming in, which would take a minute or two, if he stood still he would be. sent to the office and turned off, and while waiting for a team he would take a pick and go to picking; that everybody -was bound to keep at work; that he understood that he was to be warned when the bank came down; that he understood that by the direction of O’Brien the men would give warning when they broke away the bank; that when this mass of material came down nobody called out at all; and that other pieces of the bank had fallen where he was at work that day.</p> <p>At the close of the plaintiff’s evidence, the judge ruled that he could not recover, and directed the jury to return a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Contract, upon the following written agreement: “ Detroit, Mich., May 25, 1887.

<p>Bill in equity, by the executor of the will of Alonzo Ames Miner, who died on June 14, 1895, to obtain instructions as to its construction, and as to the construction of the will of Maria S. P. Miner, his widow, who died on July 27, 1895. The husband’s will was made on September 20, 1892, and allowed on August 15, 1895. The will of the widow was made on June 20, 1895, and allowed on May 28, 1896.</p> <p>Hearing before Allen, J., who reserved the case for the consideration of the full court, in substance as follows.</p> <p>The will of Dr. Miner nominated the plaintiff and Mrs. Miner as executors and trustees. Mrs. Miner died very shortly after the death of her husband, and the plaintiff is the sole executor of the will of Dr. Miner. During his lifetime Dr. Miner had given to Tufts College an obligation, or bond, for the payment to the college of the sum of $40,000, upon the death of Mrs. Miner, and this bond was outstanding at his death. His will directed that his other debts and his funeral expenses should be paid as soon as convenient after his death, and that a burial lot should be purchased and fitted, a monument erected, and the proprietors of the cemetery be paid for keeping the lot and monument in perpetual repair, unless the testator should have made these provisions in his lifetime. The will then gave legacies of $2,000 to each of the testator’s three sisters who should survive him, and $500 each to Maria L. Field, the testator’s niece, and to four other persons. The next clause is in these words : “ Fifth, I give to my beloved wife, Maria S. P. Miner, the custody and care of all the household furniture, plate, pictures, fuel, provisions, books, watches, jewelry, ornaments, wearing apparel, -and household articles of every description, which shall belong to me at my decease, confiding to her good judgment ultimately to dispose of them, by will or otherwise, giving such memorials to personal friends and namesakes, both hers and mine, as she may think best. Whatever of these articles my said wife shall not have disposed of during her lifetime, by will or otherwise, shall at her decease remain a part of my estate.”</p> <p>The sixth clause gave all the rest and residue of the testator’s property to the plaintiff and to the testator’s wife, and to the survivor of them, in trust for the purposes following, viz. :</p> <p>“ 1. To keep all such property and estate prudently invested, and take the income thereof, and from said income, or property and estate if at any time the income shall be insufficient, pay all taxes, premiums of insurance against loss or damage by fire, and all expenses of repairs on my real estate, and other taxes on and expenses incident to the care, management, and preservation of said trust property and estate.</p> <p>“ 2. To pay the balance of said income to my beloved wife, the said Maria S. P. Miner, who may occupy or otherwise avail herself of the income of our family residence. And since I must leave in her care and protection several persons who might have a right to look to me, were I still living, for aid in their possible necessities, I authorize my said wife to make such drafts from time to time upon the estate itself, over and above the income, for her own comfort and support, or for the comfort and support of others, as she may determine to be necessary. I give and devise to her this authority without any limitation whatever, not impairing the before named obligation to Tufts College. And since her wishes and mine entirely concur, and since circumstances may arise that cannot now be foreseen, I empower her to devise and bequeath by will any and all of said estate, real and personal and mixed, held by said trustees, not impairing the obligation above named to Tufts College, as in her judgment the interests we have at heart shall require. In whatever she may-do in these respects her action shall be final; and her co-trustee shall be held in no wise responsible.”</p> <p>The next clause provided for the management, sale, conveyance, and reinvestment of the trust property. The eighth clause directed the testator’s surviving trustee, upon the death of the testator’s wife, to pay legacies of two thousand dollars each to seven religious or educational or charitable institutions “ provided they [these bequests] shall not have been annulled or modified by any action of my wife during her life, or by any will left by her as authorized by article sixth, paragraph second (2).” The ninth clause is as follows: “ All the rest and residue of my property and estate of every description, real, personal, and mixed, not hereinbefore disposed of, nor disposed of by my wife, I give and bequeath to Tufts College, to be safely invested and kept as a separate fund, the income, and the income only, to be applied to the general purposes of the college.”</p> <p>The will of Mrs. Miner, after appointing her niece, Maria L. Field, and the defendant, Alonzo B. Parker, executors, has the two articles which follow:</p> <p>“ Second. I give and bequeath to my sister, Louisa Sarah Swasey, the sum of one thousand dollars; and to my niece, Maria Louise Field, the sum of four thousand dollars; both of these legacies to be paid out of the residue of the estate of my late husband, Alonzo Ames Miner, D. D., over which, by the terms of his will, I have a power of appointment, which power I hereby exercise.</p> <p>“ Third. All the rest, residue, and remainder of my estate, real and personal, together with the horse, carriages, harnesses, and carriage furnishings, and the household furniture and personal effects, and the library left by my said husband, exercising hereby the power of appointment vested in me, I give, devise, and bequeath to my niece, Maria Louise Field. This bequest is made in perfect confidence that my said niece will make disposal of a portion of the property so coming to her as she knows to be in accordance with my wishes ; but I do not intend that she shall be charged with any trust in regard to the property, nor required to account to the Probate Court for her disposal thereof.”</p> <p>The plaintiff finds that, after the payment of all debts and charges of administration, and the payment of the legacies given by the second, third, fourth, and fifth articles of Dr. Miner’s will, the residue remaining, and consisting of both real and personal property, amounts in value to the sum of $40,000. The executors of the will of Mrs. Miner contend that this residue should be paid to them, to be disposed of under the second and third clauses of her will. The legatees, under the eighth and ninth clauses of the will of Dr. Miner, contend that none of this residue was disposed of by the will of Mrs. Miner, excepting an amount sufficient to pay the two legacies given in the second clause of her will, and the horse, carriages, harnesses, and carriage furnishings, and the household furniture and personal effects and library left by Dr. Miner, mentioned in the third clause of Mrs. Miner’s will; and they claim that, with these exceptions, the residue should be applied by the plaintiff to the payment of the legacies given in the eighth and ninth clauses of Dr. Miner’s will.</p> <p>The answer of the executors of the will of Mrs. Miner alleges that Maria L. Field, the residuary legatee under the will of Mrs. Miner, had resided continuously in the household of Dr. and Mrs. Miner, as a member of their family, for the twenty-eight years next preceding their decease; and that Mrs. Miner had no property of any substantial value on which a will could operate at the time her will was made other than that referred to in the fifth and sixth articles of Dr. Miner’s will.</p> <p>The legatees under the eighth and ninth clauses of Dr. Miner’s will allege in their answer that Mrs. Miner was much prostrated by the sickness and death of her husband, and executed her will six days after his death, while still confined to her bed with sickness ; that Dr. Miner and Mrs. Miner had no children; that they lived together as husband and wife for more than fifty years, and were greatly attached to each other; that they were both members of the Universalist Church, and interested in its charities and enterprises, and during their married life had cooperated together in reference thereto ; and that all of the legacies given in the eighth and ninth clauses of Dr: Miner’s will were to churches, schools, or enterprises founded and conducted under the auspices of the Universalist denomination.</p> <p>The questions of law arising in the cause were reserved on November 16, 1897, for the determination of the full court, the parties having agreed that the allegations of fact, so far as material, contained in the bill and answers, are to be taken as true.</p> <p>The case was first argued on January 28,1898, before Field, C. J., Allen, Lathrop, and Barker, JJ.; and, not having been decided before the retirement of Mr. Justice Allen, was afterward submitted on briefs to Holmes, Knowlton, and Morton, JJ., Mr. Justice Hammond declining to sit because of interest.</p>

<p>Life Insurance — Foreign Corporation doing Business on Assessment Plan —. Lex Loci Contractus—Statute—Misrepresentation—Presumption of Intent to deceive—Understatement of Age — Record of Naturalization—Evidence of Identity — Photograph — Payment into Court of returned Premiums.</p> <p>A policy of life insurance issued by a foreign corporation doing business on the assessment plan in this Commonwealth, under a contract made here through its agent here, and delivered and paid for here, is governed by our laws, and a provision on the back of the policy, that “ this contract shall be governed by and construed only according to the laws of the State ” under which the corporation was organized, does not affect the rights of the parties; and St. 1894, c. 522, § 21, providing that no misrepresentation made in the negotiation of a policy of insurance by the assured shall avoid it, “ unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increased the risk of loss,” is applicable to this policy.</p> <p>The defendant in an action upon a policy of life insurance is not entitled to have the jury instructed that there is a presumption from the falsity of a statement by the insured that there was an intent to deceive the insurer.</p> <p>In an action upon a policy of life insurance, the jury sho'uld be instructed that “an understatement of age increases the risk of loss in a life insurance contract as matter of law.”</p> <p>The record of the naturalization of a person called Fardell Dolan, in the application for which his age is stated as several years greater than that given in an application for life insurance by a person called Farrell Dolan, both of the same city, is admissible in evidence, in an action upon the policy of insurance, in connection with other facts tending to show the identity of the assured with the applicant for naturalization.</p> <p>It is within the discretion of the judge, at the trial of an action upon a policy of life insurance, to exclude a photograph of the assured, which was taken under unfavorable circumstances more than a year after the date of the policy by a person employed by the defendant, and when the condition of his health was different from that at such date.</p> <p>If an insurance company has rescinded a contract of insurance in the lifetime of the assured upon the discovery of an alleged fraud, and refused to accept further premiums, it is not error, in an action upon the policy, to allow the plaintiff to pay into court the amount of the premiums which have been returned by the defendant.</p>

<p>Petition to the Probate Court, by a devisee under the will of Robert H. Peverly, for the construction thereof. A decree • was entered that the land in question passed to the petitioner for life, with remainder on his decease to the respondent and his heirs and assigns, which decree was confirmed, on appeal, by a single justice of this court. The petitioner appealed to the full court. The facts appear in the opinion.</p>

<p>Petition to the Probate Court, by the executor of the will of Mary T. Porter, late of New York in the State of New York, for instructions as to the payment of a collateral inheritance tax. A decree was entered that certain personal property belonging to the estate within this Commonwealth was subject to such tax, and the executor and the legatees under the will appealed to this court. Hearing before Holmes, J., upon the petition and an agreed statement of facts, in substance as follows.</p> <p>The testatrix, Mary T. Porter, was a resident at the time of her death of the city of New York, and had her legal domicil at that place. She died prior to July 23,1894. Her will was proved and allowed by the Surrogate’s Court of the City and County of New York on that day, and the petitioner was appointed executor of the will and qualified in the State of New York. At the date of her death, the testatrix was possessed of certain real estate within this Commonwealth, and also of certain personal property consisting of shares in corporations named in the inventory, as well as other personal property within the State of New York. At the date of her death all the certificates of stock named in the inventory were actually within the city of New York. The shares represented by these certificotes of stock were transferable in the ordinary manner, by indorsement and delivery of the certificates.</p> <p>On September 6, 1895, the will of Mary T. Porter was admitted to probate in the county of Bristol in this Commonwealth, and the petitioner was appointed executor thereof within this Commonwealth. He qualified as such executor, and within three months, as required, filed an inventory in the Probate Court for the County of Bristol. The personal property shown in such inventory was all the personal property possessed by the testatrix at the time of her death within the jurisdiction of this Commonwealth. Previously to September 6, 1895, and to the proof of the will of Mary T. Porter in this . Commonwealth, the petitioner, acting as executor under his appointment in the State of New York, and in execution of the provisions of the will of the testatrix, transferred all of the stock mentioned in the inventory with the exception of eight shares of the Suffolk National Bank of Boston, and two shares of the National Bank of Commerce of Boston.</p> <p>All of the stock so transferred was transferred by the executor under the fourth item of the will, by which the sum of $30,000 was given in trust to Frank H. Gifford. The transfer was made by the executor by filling out the blank prepared for transfer upon the back of the certificates, and by delivering the same to Gifford as trustee, together with a certified copy of the letter of appointment of the executor issued by the Surrogate’s Court for the City of New York.</p> <p>None of the transfers were signed in blank, and all of them were made upon the books of the corporation prior to September 6, 1895. Subsequently to September 6, 1895, the executor transferred the eight shares of the Suffolk National Bank of Boston in the same manner to Gifford as trustee, furnishing to Gifford a certified copy of his appointment as executor by the Probate Court for the County of Bristol; and also subsequently to September 6, 1895, the executor sold two shares of stock in the National Bank of Commerce of Boston, and the stock was afterwards transferred to the purchaser by the corporation, upon being furnished with a certified copy of the executor’s appointment in this Commonwealth.</p> <p>The purpose of the probate of the will in this Commonwealth was to complete the title to the real estate situated here and owned by the testatrix. Upon the real estate the inheritance tax has been paid to the treasurer of the Commonwealth. The inventory was filed by the executor in accordance with the opinion from the Attorney General’s office requiring a full inventory to be filed in such cases. The executor has paid to the State of New York a transfer tax, corresponding to the collateral inheritance tax assessed in this Commonwealth upon the amount of the personal property of the testatrix, represented by the shares in the Massachusetts corporations appearing in the inventory.</p> <p>Of the corporations, the shares in which were inventoried by the executor, the following were corporations duly organized under the laws of this Commonwealth: the New Bedford Copper Company, the New Bedford Gas Company, the New Bedford Gas and Edison Light Company, the Fitchburg Railroad Company, and the Boston and Maine Railroad Company ; the following were corporations duly established under the laws of the United States of America, and located at New Bedford: the First National Bank, the Merchants’ National Bank, the National Bank of Commerce, and the Mechanics’ National Bank; and the following were corporations duly organized under the laws of the United States of America, and located at Boston: the Suffolk National Bank, and the National Bank of Commerce.</p> <p>The case was reserved, at the request of the parties, for the consideration of the full court; such order to be made as justice might require.</p> <p>The case was argued at the bar in October, 1898, and after-wards was submitted on briefs to all the justices.</p>

Contract, upon a promissory note for $25,000, dated at New York, June 27, 1891, payable one year after date to the order of Henry G. Hubbard, and signed by the defendant. Trial in the Superior Court, without a jury, before Hammond, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

<p>Tort, for injuries caused by dogs. At the trial in the Superior Court, the defendant alleged exceptions to the rulings and order of Bond, J., and to his refusal to rule as requested, all of which appears in the opinion.</p>

<p>Bill m equity, brought in the Superior Court by a wife through her next friend against her husband, alleging that by fraud and coercion he obtained her money and was about to squander it. The answer of the husband was that his wife gave him the money to pay his debts with, and that he had paid them. The judge found that the husband had obtained a part of the money by fraud and coercion, and a decree was entered ordering him to return it; and the defendant appealed to this court.</p> <p>The defendant objected to the decree for the reason that, if it could be made, it could be enforced by proceedings in contempt, and by imprisonment if necessary ; that it is not a crime for a man to defraud his wife of her money, and he cannot be punished criminally for so doing; and that this decree, if enforced, would constitute an equitable method of punishing a man for that which the criminal law does not recognize.</p>

<p>Personal Injuries— Convict Labor — Negligence — Action.</p> <p>Assuming that a convict in a penal institution, whose labor is hired by a manufacturer of goods, may maintain an action against the latter for injuries occasioned by his negligence, the fact that the former, who was standing in the course of his employment on a machine upon a platform made of boards fastened to joists resting on the ground, stepped on the end of one of the boards which projected beyond the joists, causing the platform to tip and his foot to go upon the treadle of the machine and set it in motion to his injury, is not evidence of such negligence. Lathrop, J. dissenting.</p>

<p>Tort, for personal injuries sustained by the plaintiff while a passenger on the defendant’s train, which came in collision with another train. At the trial in the Superior Court, before Hardy, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions to certain instructions to the jury, which appear in the opinion.</p> <p>The case was argued at the bar in January, 1898, and after-wards was submitted on briefs to all the justices.</p>

<p>Tax upon House of President of a College— Law and Fact.</p> <p>At the trial of a petition for the abatement of a tax upon the house of the president of a college, upon the ground that it was exempt by Pub. Sts. c. 31, § 5, cl. 8, it appeared that before he occupied the house it had been let for a school, that be lived in it with his family, paid rent to the college and water rates, established a tennis court at his own expense, and some years at least paid for the care of the grounds, and that he paid the inside expenses. He might be found to have exercised the same control over it that he did over another house which lie previously had hired. Held, that it could not be said, as matter of law, that the house was exempt.</p>

<p>Statute of Limitations — Presentment of Claims to Register of Probate for Allowance against insolvent Estate — Dower — Widow’s Share of Rents — Statute — Agreed Facts — Inference.</p> <p>The statute of limitations, Pub. Sts. c. 197, § 1, does not run upon a claim of one tenant in common against another for a just share of the profits of land, when there has been no demand and no termination of the tenancy or of the defendant’s management of the land, or any other event to change the relations between the two; and the right of remaining tenants is not affected by the sale of other shares.</p> <p>Where one tenant in common receives rents and profits on the one side, and on the other pays not merely for repairs, insurance, etc., but for taxes, in respect of which he has a personal claim against his cotenants, the account is “ a mutual and open account current ” within the saving of Pub. Sts. c. 197, § 8.</p> <p>Leaving claims with the Register of Probate, and his indorsement thereon that they were presented for allowance within two years from the filing of the administrator’s bond, is equivalent to beginning suit, and avoids the bar of the special statute of limitations, Pub. Sts. c. 136, § 9.</p> <p>Although inferences cannot be drawn by this court upon an agreed statement of facts, yet, if the statement can be construed to import a material fact which would be the fair inference from the facts stated, it will be so construed.</p>

<p>Bill in EQUITY, filed June 1,1897, under the provisions of Pub. Sts. c. 1.06, § 64, by creditors of the J. B. Parker Machine Company, a corporation organized under the provisions of Gen. Sts. c. 61, against the corporation and against Archelaus C. Dakin, Charles C. Murdock, Mary A. Parker, Jonathan Smith as executor of the will of M. Isadore Parker, deceased, and Charles G. Bancroft as trustee.</p> <p>The bill alleged that the capital stock of the defendant corporation was fixed at $45,000; that on December 2, 1896, its debts exceeded its capital stock; that on that date the plaintiffs brought an action at law against it, and recovered judgment and execution; that due demand was made upon it for the payment of the amount due on the execution, but it neglected for thirty days thereafter to pay such amount, or to exhibit real or personal estate sufficient to satisfy the execution, which was returned unsatisfied; that at a meeting of the stockholders held in January, 1891, Dakin was elected president, and Murdock, Mary A. Parker, and M. Isadore Parker were elected directors of the corporation, and accepted the offices, and, with the exception of M. Isadore Parker, who died on September 4, 1895, continued to hold them and to act as such officers to and through December 2, 1896; that on December 2, 1896, the corporation, and on December 3, Dakin, Murdock, and Mary A. Parker made separate assignments of their property to Charles G. Bancroft as trustee for the benefit of their creditors; that Dakin died on February 4, 1897, but at the date of the filing of the bill administration had not been granted upon his estate. The prayer of the bill was for general relief, and for a decree that such of the defendants or their representatives as were liable for the debts of the corporation should be directed to pay the same.</p> <p>The defendants severally filed answers, and after the parties were at issue the case was referred to a master, who found that the corporation was organized in 1874, under the provisions of Gen. Sts. c. 61, with a capital of $45,000; that at a meeting of the stockholders held on February 8, 1886, Dakin was elected president, and Murdock treasurer, and both they, Mary A. Parker, and M. Isadore Parker were chosen directors; that the records of the corporation showed no meeting of stockholders for the election of officers, nor the election of any officers or any meeting of the board of directors after February, 1886; but that there was a record of a meeting of the stockholders in March, 1894, for the purpose of authorizing a mortgage to the Clinton Savings Bank. The master, against the defendants’ objection and exception, admitted oral testimony of Murdock that in January, 1891, there was a meeting of the stockholders, at which the same officers were elected as in 1886, and that he, as .clerk of the company, made minutes of the meeting on a piece of paper, which was afterward lost, and made no other record of the proceedings; that from January, 1891, to and including December 2,1896, Dakin and Murdock had the active management, direction, and control of the business of the corporation; that Dakin held himself out to the public as president and director, and Murdock held himself out as treasurer and director, and that if not such de jure they were such de facto ; and that Mary A. Parker was not, during any portion of the years 1894, 1895, and 1896 a director de facto or de jure. The master further found that on December 2,1896, the debts of the corporation exceeded its capital by $13,139.91; that on that day the plaintiffs commenced an action at law against it and recovered judgment; that execution was issued, demand for payment made thereunder, and, thirty days thereafter, it was returned unsatisfied; that on December 2, 1896, the corporation made an assignment of its property to Charles G. Bancroft in trust for the benefit of such of its creditors as had claims which could be proved in insolvency, and who should, within sixty days thereafter, assent in writing to its terms, and on the next day the defendants Dakin, Murdock, and Mary A. Parker severally made assignments of their property to Bancroft in trust for the benefit of their creditors, the provisions of which were similar to those of the assignment of the corporation; and that before the commencement of this suit most of the creditors of the corporation assented to the assignment made by it, but the plaintiffs did not assent to it, and on December 31,1897, with another creditor, entered into an agreement with Bancroft by which it was provided that the plaintiffs and the other creditor, as parties of the first part, “ do hereby accept and agree to the provisions of the aforesaid assignment, except that said parties of the first part do not . . . agree to accept and take in full payment, satisfaction, and discharge of their respective debts, claims, demands, and causes of action against the said J. B. Parker Machine Company the dividends which shall be payable to said parties of the first part respectively under the provision of the aforesaid assignment. And said parties of the first part do hereby severally and respectively release, acquit, and forever discharge said J. B. Parker Machine Company from their respective debts, claims, and demands only to the amount of such dividend or dividends as they, the parties of the first part, may respectively receive hereafter under the provisions of said assignment, expressly reserving to the respective parties of the first part all other rights, including the right to proceed to take judgment against the J. B. Parker Machine Company, and to take such other proceedings as they may desire, and especially to enforce against the officers and stockholders of the J. B. Parker Machine Company payment of their respective judgments so to be obtained, to all which the party of the second part hereby assents and agrees.”</p> <p>The master ruled,' as matter of law, that upon the facts found no decree could be framed settling the rights of all the parties, and that the bill could not be maintained. The plaintiffs alleged exceptions.</p> <p>Upon the coming in of the master’s report, the case was heard in the Superior Court, before Dewey, J., who reserved it for the determination of this court.</p>

<p>Personal Injuries — Action — Receivers of Railroad.</p> <p>An action cannot be maintained against the receiver of a railroad after his discharge.</p>

<p>Contract, to recover from the assignees of an insolvent estate the proceeds of a sale of certain mortgaged property, held to await the determination of the question as to the validity of the mortgage given by the insolvent debtors to the plaintiff brewing companies. Trial in the Superior Court, before Eammond, J., who, having directed a verdict for the defendants, reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Contract, upon a judgment recovered in New Hampshire, October 80, 1874. Trial in the Superior Court, without a jury, before GrasTdll, J., who found for the defendant; and the plaintiff alleged exceptions. • The material facts appear in the opinion.</p>

<p>Contract, upon a promissory note for $1,000, dated August 7, 1896, payable in four months after date to the order of Cunningham, Banks, and Company, signed by the defendant, and indorsed to the plaintiff. Trial in the Superior Court, without a jury, before Hammond, J., who found for the plaintiff; and, at the request of both parties, reported the case for the determination of this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1898, and afterwards was submitted on briefs to all the justices except Field, C. J.</p>

<p>Two ACTIONS OP TORT, for the conversion by the defendant, a corporation, of two bonds of the city of Boston. Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptians, in substance as follows.</p> <p>The plaintiff in opening his case to the jury stated that, in August, 1896, the bonds alleged to have been converted were delivered to him in payment of a debt by William Scollans, the original payee thereof, who at the same time signed and acknowledged before a justice of the peace instruments of assignment stamped by a rubber stamp on the reverse side of the bonds, but not containing the name of any person as assignee. The plaintiff then obtained permission of one Gage, a member of a firm of bankers and brokers, in whose office he occupied desk room and of whom he was a customer, to leave the bonds in the firm’s safe for safe keeping. The bonds were placed by Gage, in the plaintiff’s presence, in an envelope which was marked in Gage’s handwriting, “ T. J. Scollans, Private Property,” was sealed by him and placed in the safe where it was seen by the clerks during September and October. Subsequently, Gage, without the knowledge of the plaintiff, pledged them to a bank as security for a loan obtained by his firm, and upon the insolvency of the firm, in November or December,</p> <p>1896, the bank sold them at public auction to the defendant, who purchased them in good faith and for value, filled in with its name the blank in each indorsement, presented the bonds to the city auditor for cancellation, and received in return new certificates payable to itself. In September, 1896, Gage handed to the plaintiff the regular monthly statement of his account, showing stocks bought and sold and carried for him in August, and giving him credit for the two city of Boston bonds. The plaintiff immediately called Gage’s attention to the fact that these bonds were not given as collateral, and protested against their being so regarded. Gage replied that he did not mean to have them so regarded, that they were still in the safe, but as the plaintiff had taken no receipt for them it would be found beneficial “if anything should happen to either” of them to have some record of the fact that the plaintiff owned them.</p> <p>This statement appeared to be satisfactory to the plaintiff, who trusted to the honesty and integrity of Gage, and who made no objection to their being credited in the same manner on the October statement of his account.</p> <p>The following is a copy of the bonds, and of the assignment and acknowledgment on the reverse side:</p> <p>“ Registered Bond. City of Boston. This is to certify that for value received there will be due from the City of Boston, payable at the office of the City Treasurer on the first day of April, 1913, to William Scollans the sum of One Thousand Dollars with interest at the rate of four per cent per annum payable on the first day of April and October in each year.</p> <p>“This obligation being created in pursuance of an order of the City Council passed the tenth day of July, eighteen hundred and ninety-three.</p> <p>“ Transferable only at the office of the City Treasurer. Interest beginning September 7, 1893.”</p> <p>Reverse Side.</p> <p>“ Value received, I assign E. H. Rollins & Sons the within certificate of the City of Boston Stock, and hereby authorize the transfer thereof on the books of the City Treasury. William Scollans.</p> <p>“ State of Massachusetts, County of Suffolk, ss.</p> <p>“Personally appeared before me the above named William Scollans arid acknowledged the foregoing to be his free act and deed. Witness my hand and official signature this 13th day of August, 1896.” (Signed by a justice of the peace.)</p> <p>At the conclusion of the plaintiff’s opening the judge, at the request of the defendant, and, after a negative reply by the plaintiff to his inquiry whether the plaintiff had any further proof than had been outlined to the jury, directed the jury to return a verdict for the defendant in each case, and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in November, 1898, and afterwards was submitted on briefs to all the justices except Meld, C. J.</p>

<p> Petition to quiet Title—Mortgage—Guardian and Ward. </p> <p>At the trial of a petition under St. 1893, c. 310, to compel the respondent to bring an action to try her claim to certain real estate, it appeared that she claimed under a mortgage given to one P., “ as he is guardian of E., a minor,” who was the respondent; that, after the respondent had come of age and had married, P. assigned the mortgage, which was afterward paid to the holder and discharged by him, and that later still the petitioner bought the land. The contention of the respondent, who had entered to foreclose, was that the title to the mortgage and mortgage note vested in her upon the execution of the instruments, and that the assignment by P. and the so called payment did not affect her rights. The judge found that the petitioner, and not the respondent, was in possession, and that the respondent was not the legal owner of the mortgage, and ordered her to bring an action. Held, that, as the respondent had asserted a legal claim, the finding was proper.</p>

<p>Contract, on two promissory notes, each of which was executed October 18, 1890, and was payable two years after date. Writ dated July 1, 1897. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion.</p>

<p>Petition to establish the truth of exceptions alleged by William A. Walton, in an action brought against him on June 29, 1895, by the Clemens Electrical Manufacturing Company, upon two promissory notes, one for $4,000, and the other for $3,714.12, each dated October 15, 1892, payable in two months after date to the Attleborough, North Attleborough, and Wrentham Street Railway Company, signed by that corporation, and indorsed by it and by the defendant; which exceptions were disallowed by HopJcins, J., who presided at the trial in the Superior Court.</p> <p>The bill of exceptions as filed stated that at the trial the plaintiff produced the original notes, copies of which were set out, and put the notes in evidence, and then rested; that the defendant then introduced in evidence the records of the stockholders and directors of the Interstate Street Railway Company and the Attleborough, North Attleborough, and Wrentham Street Railway Company, and portions of the records of the stockholders and directors of the plaintiff corporation ; that such portions of the above named records introduced in evidence as were material to any of the questions raised by the bill of exceptions were thereinafter fully set forth; that no question was raised by the defendant as to the genuineness of the various signatures appearing either on the face or the back of the notes in suit; and that the only evidence introduced as to the signing of the indorsements on the notes, or as to the delivery of the notes to the plaintiff, or as to the time when such indorsements or delivery were made, aside from such evidence, if any, as to these questions as was furnished by the notes themselves, and the admitted genuineness of the signatures thereon, and by the records of the three corporations, and the agreement of October 15, 1892, as thereinafter set forth, came from Homer M. Daggett, Jr., a witness called by the defendant, and Maynard E. Clemens, a witness called in rebuttal by the plaintiff.</p> <p>The evidence of Daggett, who testified that he was present at all the meetings thereinafter referred to, held on October 15, 1892, whether of directors or stockholders of the three corporations above named, was then set out by questions and answers, and occupied about three printed pages.</p> <p>Then followed the portions of the records above mentioned, which covered eleven printed pages.</p> <p>The testimony of Daggett, which was continued, and which was set out partly by questions and answers, and partly in the narrative form, occupied the next three pages. The following three pages were taken up by the recital of a discussion between the judge and the counsel for the defendant upon an offer of proof by the latter, which resulted in the exclusion of the evidence offered, and an exception to such exclusion. The next eight pages consisted of the recital of questions to and answers by the witness, some of which were objected to by the plaintiff and excluded ; several offers of proof by the counsel for the defendant, interspersed with discussions between the judge and the counsel, the exclusion of the evidence offered, and an exception to such exclusion ; and the testimony of Clemens set out by questions and answers.</p> <p>The bill then set forth twenty-eight requests for rulings, which occupied two pages, and thereupon contained the following recitals:</p> <p>“ None of the above requests for rulings were given by the presiding justice, and the presiding justice failed and refused to give any of the above rulings, though expressly requested to give each and all of said rulings; and the defendant duly excepted to the judge’s failure and refusal to give said rulings and each and every thereof. . . .</p> <p>“ In the course of the argument of counsel for the defendant the presiding justice ruled as follows :</p> <p>“I shall rule that the Attleborough Company had the right to purchase the materials belonging to the plaintiff corporation which were purchased, and for which these notes were given, and that they would be a good and sufficient consideration for the notes. In other words, I shall say upon all the evidence the plaintiff is entitled to recover upon all these notes.’</p> <p>“ The defendant duly excepted to these rulings as made by the presiding justice.</p> <p>“ The presiding justice thereupon stated to counsel for the defendant as follows:</p> <p>“' (The Court.) You say the plaintiff is not entitled to recover, and that question is saved to you. My purpose is to find for the plaintiff on these notes. You say on all the evidence you are entitled to a finding for the defendant: I rule otherwise. I do not see why your rights are not all saved in every conceivable aspect.’</p> <p>“ ‘ (Mr. Snow.) Does your honor refuse all the rulings ?’</p> <p>“ ‘ (The Court.) I have not yet seen them; but it is clear, Mr. Snow, that your rights are all saved.’</p> <p>“ ‘ (Mr. Snow.) I think not, unless the claims are all passed upon.’</p> <p>“ ‘ (The Court.) Is there any mystery in this case as to the rights of the adverse parties ? ’</p> <p>“ ‘ (Mr. Snow.) We are entitled to present such propositions of law as we think material, and which are not, as I view it, included in the general proposition.’</p> <p>“' (The Court.) So far as I can conceive that your prayers are in line with your claims that are made from the beginning, the chances are that they will all be overruled. In any phase of the question which has been presented to me, I cannot find for the defendant, but I must find for the plaintiff.’</p> <p>“ ' (Mr. Snow.) We shall request your honor to pass upon each and all rulings in question, and we wish to except to all such rulings as are refused.’</p> <p>“ The presiding justice did not make any rulings of law pertinent to the merits of the case or to the questions raised by the foregoing requests for rulings other than as stated in this bill of exceptions. The presiding justice did not expressly or separately pass upon any of the above requests for rulings, though expressly requested by counsel for defendant so to pass upon each and all of the same, except so far as may be inferred from the rulings made by the presiding justice and the finding for the plaintiff as herein set forth. Without so passing upon any of said requests for rulings except as aforesaid, the presiding justice thereupon found for the plaintiff for the full amount of the notes in suit, and interest thereon, in the sum of nine thousand two hundred and twenty-eight dollars and twenty-nine cents ($9,228.29), and the defendant duly excepted to the judge’s failure to pass upon said requests for rulings as requested as aforesaid.”</p> <p>■ The certificate of the judge, in disallowing the exceptions, was as follows:</p> <p>“ I have examined the foregoing bill of exceptions, and find that in form it does not conform to the rules of law, and that as to the substance it does not conform to the truth ; and I therefore disallow the same.”</p> <p>The petition was referred by this court to a commissioner, to hear the parties and their evidence and report his findings.</p> <p>The report of the commissioner recited that the bill of exceptions set forth sixteen distinct and independent exceptions separately stated, those numbered in the report from one to thirteen inclusive being to the exclusion of evidence offered, the fourteenth to a ruling given, the fifteenth to a refusal to give rulings requested, and the sixteenth to the failure of the judge to pass upon requests for rulings.</p> <p>The commissioner found that the first six exceptions were duly taken, and that the rulings excepted to and the evidence to which they applied are stated with accuracy.</p> <p>In the case of the second exception he reported, at the request</p> <p>of the plaintiff, the following facts, which did not appear in the bill of exceptions.</p> <p>The question put to Daggett, “ What was said at that time, either by the defendant or by the directors, or any of the directors of the plaintiff company, with reference to the consideration of the notes in suit?” was objected to by counsel for the plaintiff.- The judge inquired whether it was meant as a preliminary question merely. Counsel for the defendant answered in the affirmative. The judge then said to the witness, “ You may answer that question Yes or No.”</p> <p>As to the seventh exception, the commissioner found that counsel for the defendant stated to the judge that, in view of a certain agreement, dated October 15,1892, between the plaintiff and the Interstate Street Railway Company, which had previously been introduced in evidence, they offered to show that the defendant and the Attleborough Company both put their signatures on the notes in question without receiving any actual consideration therefor, and that the defendant put his name on the notes in question at the request and for the accommodation of both the maker of the note, the Attleborough Company, and the Interstate Company. The judge thereupon said, “ That I will exclude ”; and to this ruling counsel for the defendant then excepted.</p> <p>It was contended before the commissioner that this exception was not in conformity to the truth, without a qualifying statement that the ruling is to be taken in connection with preceding rulings, and related to the evidence offered, and not to the general proposition contained in the offer; that the ruling was that it was not competent to show by conversations between persons, officers and others, any facts to control the arrangement which appeared by the votes and records of the corporation. The offers of proof and ruling were in fact made in form, as set out in the bill of exceptions.* Upon exception being taken to the ruling, counsel for the plaintiff observed, “ What I suppose your honor excludes is the manner in which they propose to prove?” This elicited, so far as appeared before me, no response from the judge or from counsel for the defendant, and no qualification or explanation of the ruling was offered by the judge. Under the offer in question, counsel for the defendant, as they testified at the hearing before me, were prepared to introduce no evidence touching the question of a lack of consideration moving to the Attleborough Company other than that previously offered and excluded. As to the lack of a consideration moving to the defendant, and as to his signing the notes in question at the request and for the accommodation of the Attleborough Company and the Interstate Company, they were, as they testified at the hearing before me, prepared under said offer to ask the defendant and Homer M. Daggett, Jr., first, whether the defendant had received any consideration for signing said notes; and, secondly, whether he signed them at the request and for the accommodation of the Attleborough Company and the Interstate Company, and they expected the witness to answer the first question No, and the second Yes. But at the trial counsel were not asked, and did not state, what specific evidence they were prepared to introduce under their offer.</p> <p>“ In order that the defendant’s offer of proof and the ruling thereon may be presented in the same aspect as in the trial court, certain statements made by court and counsel in the course of the trial, which have been omitted from the bill of exceptions, should be inserted therein. If this is done, the bill will then contain, as I find, a consecutive account of everything that took place at the trial material to the question whether the ruling under consideration should be construed according to its literal import, as contended by the petitioner, or, as contended by the respondent, in connection with preceding rulings, and as relating to the manner of proof only. The amendments which I find ought to be made for the purpose stated are as follows.” [Then followed the amendments suggested, consisting of the striking out of one paragraph and the substitution of others, and also the addition of several other paragraphs, the new matter containing discussions between the judge and counsel.]</p> <p>The commissioner found that the eighth, ninth, twelfth, and fourteenth exceptions were duly taken, and that the rulings excepted to and the evidence to which they applied are stated with accuracy ; and that, in the case of the tenth and eleventh exceptions, no exceptions were taken, as alleged, to the rulings of the judge. Counsel for the defendant stated before the commissioner that they waived their claim thereto; and it sufficiently appeared at the hearing before him that, in claiming these exceptions, counsel did not act in bad faith.</p> <p>He found that in the ease of the thirteenth exception the counsel for the plaintiff not only offered, but introduced in evidence, the record therein referred to; that the bill of exceptions set out the offer, but not the introduction; that the exception was duly taken; and that the ruling excepted to, and the evidence to which it applied, except as above indicated, are stated with accuracy.</p> <p>The commissioner further reported that upon the fifteenth exception the questions presented were whether or not the judge refused, as alleged, to make the rulings set forth in the defendant’s written request therefor, and, if the judge so refused, whether or not the defendant duly excepted, as alleged, to such refusal; that these questions would appear to be questions of law upon the facts; and that the facts found by him were as follows:</p> <p>“ At the close of the evidence, Mr. Snow, of counsel for the defendant, presented to and left in the possession of the judge the written request for rulings set forth in the bill of exceptions, having first, however, exhibited it to counsel for the plaintiff. So far as appeared before me, the judge did not examine it. Mr. Snow then began his argument. Upon the termination of the arguments, the judge said: ‘I shall rule that the Attleborough Company had the right to purchase the material belonging to the plaintiff corporation, which was purchased, and for which these notes were given, and that it would be a good and sufficient consideration for the notes. In other words, I shall say that, upon all the evidence, the plaintiff is entitled to recover upon all these notes.’</p> <p>“ Exception to this was taken by counsel for the defendant.</p> <p>“ Thereupon the following colloquy ensued between counsel for the defendant and the judge: ‘ (The Judge.) You say the plaintiff is not entitled to recover, and that is saved to you. My purpose is to find for the plaintiff on these notes. You say on all the evidence you are entitled to a finding for the defendant. I rule otherwise. I do not see why your rights are not all saved in every conceivable aspect.’</p> <p>“ ‘ (Mr. Snow.) Does your honor refuse all the rulings ? ’</p> <p>“ ‘ (The Judge.) I have not yet seen them; but it is clear, Mr. Snow, that your rights are all saved.’</p> <p>“ ‘ (Mr. Snow.) I think not, unless the claims are all passed upon.’</p> <p>“ ‘ (The Judge.) Is there any mystery in this case as to the rights of the adverse parties ? ’</p> <p>(Mr. Snow.) We are entitled to present such propositions of law as we think material, and which are not, as I view it, included in the general proposition.’</p> <p>“ (The Judge.) So far as I can conceive that your prayers are in line with your claims that are made from the beginning, the chances are that they will all be overruled. In any phase of the question which has been presented to me, I cannot find for the defendant, but I must find for the plaintiff.’</p> <p>“ ‘ (Mr. Snow.) We shall request your honor to pass upon each and all rulings in question, and we wish to except to all such rulings as are refused.’</p> <p>“ The judge then leaned over to the clerk and told him to figure up the interest on the notes. Mr. Snow asked the clerk as to the interest, and was told what the interest and principal would be.</p> <p>“ Nothing further was said in the case, but subsequently, on the same day (March 24, 1896), the judge handed to the clerk his decision in writing, as follows: '1 find for the plaintiff, and assess damages in the sum of nine thousand two hundred and twenty-eight dollars and twe.nty-nine cents.’ This was duly filed and docketed by the clerk, but counsel for the defendant had no notice or knowledge thereof until the filing of the bill of excep-, tians. The bill of exceptions was filed April 18, 1896, having been prepared and filed on the assumption that the court had found for the plaintiff, and due notice of such filing was on the same day given to the adverse party.</p> <p>“ The rulings requested as aforesaid by counsel for the defendant were given or refused, and if refused, an exception thereto was or was not taken, only as may be shown by the foregoing facts.”</p> <p>The commissioner found, as to the sixteenth exception, that the presiding judge did not, except as may be inferred from his finding for the plaintiff, pass upon any of the requests for rulings, although requested by counsel for the defendant to pass upon each and all of the same ; and that the defendant duly excepted to the judge’s failure expressly to pass upon such requests so far, and only so far, as may be shown by the facts stated with reference to the fifteenth exception, and by the further fact that the exception in question was incorporated in the bill of exceptions.</p>

<p>Partnership Agreement — “ Losses.”</p> <p>Losses must be borne equally where an agreement signed by three partners recites that the two working partners are to receive salaries and the partners contributing capital stock are to receive interest, as a part of the expenses of the business, and, if there are profits, each of the working partners is to receive a little more than one third of them, and if there are losses all are to bear them in equal proportions.</p>

<p>Contract, to recover $318.60, the price of certain soles sold by the plaintiff to the defendant. Trial in the Superior Court, without a jury, before Richardson, J., who found for the plaintiff in the sum of $50.71; and the plaintiff alleged exceptions. The material facts appear in the opinion.</p>

<p>Policy of Insurance — Declaration of Trust — Evidence — Public Policy — Attempted. Testamentary Disposition of Property.</p> <p>A policy of life insurance payable “ to and for the sole and separate use and benefit of A., trustee,” clearly manifests an intention of the insured to create a trust, and after his death his declarations, oral and written, are admissible to show the terms of the trust and the beneficiary thereof.</p> <p>Although an application for a policy of life insurance contains directions to pay to “ A., trustee for self,” it is competent to find that a letter to the general agent of the insurance company, dated the same day as the application, containing later directions as to the payment of the policy, and referring to it as something in futuro, wás sent and received before the policy was issued, and that its directions controlled and modified those of the application.</p> <p>A policy of life insurance payable “to and for the sole and separate use and benefit of A., trustee,” and a sealed letter addressed to A. found among the papers of the insured after his death requesting A. to pay over “any money collected by you as trustee on any policies of insurance on my life to B.,” are not of themselves sufficient to establish the trust; but conversations between the insured and B., some of them shortly before the death of the insured, in which, although the w'ord “trustee ” was not mentioned, the insured said that he had had his life insured for B., and that A., to whom B. was to look, had the matter in charge, constitute a notice by the insured to B. of the existence of a trust in his favor, notwithstanding the fact that the policy was never delivered to him, and that the letter to A. remained in the possession of the insured until his death, and its contents were unknown to A. or B.</p> <p>If, in an action against an insurance company upon a policy issued upon the life of the plaintiffs testator, the company admits its liability, the plaintiff cannot set up against a claimant of the proceeds of the policy, in whose favor a trust has been perfected by the insured, any defence arising out of the by-laws of the company.</p> <p>A trust in the proceeds of a policy of insurance which has been established by the insured is not invalid on grounds of public policy, although at the time when the policy was issued the beneficiary was the wife of a man other than the insured.</p> <p>A trust which has been established in favor of B. in the proceeds of a policy of insurance on the life of C., payable “ to and for the sole and separate use and benefit of A., trustee,” is not inoperative as an attempted testamentary disposition of property by 0.</p>

Tort, for personal injuries occasioned to the plaintiff’s intestate, by an alleged defect in a highway in the defendant city, caused by an accumulation of ice and snow.

<p> Board of Police of Boston—Rules and Regulations—Police Officer—Recovery for back Pay. </p> <p>The board of police for the city of Boston has the right to establish rules and regulations for the government and discipline of the force, and to provide therein for fines and forfeitures in cases of absence from duty; and under the rules and regulations so established, a police officer who was appointed in December, 1873, and continued in office till January 5, 1893, when he was retired on his own petition with a pension, cannot recover for back pay for various periods previous to said January 5, he never having performed any duty or reported for or offered to perform duty during those periods.</p>

Writ oe error, to revei’se a judgment rendered for the Commonwealth, on August 9, 1898, by the Superior Court for the county of Suffolk, upon an indictment charging the plaintiff in error with forging and uttering certain checks.

<p>Evidence — Examination and, Cross-examination.</p> <p>Where nothing is brought out on cross-examination which justice requires to be explained by further immaterial evidence, a question on re-direct examination to a witness as to what was said on the occasion in question is rightly excluded.</p>

<p>Petition, against Harry J. O’Brien and James V. Steele, to enforce a mechanic’s lien, under Pub. Sts. c. 191, for materials furnished for the erection of buildings on land in Boston. The original respondents, O’Brien and Steele, duly filed confessions of judgment, and subsequently John F. Hutchinson as the owner of certain mortgages on the land in question, and George H. Reed, claiming title to three of the four lots into which the land was divided, under the foreclosure of these mortgages, and as the owner of the mortgage on the fourth lot, appeared and filed answers. At the trial in the Superior Court, before Maynard, J., certain issues were submitted to a jury, and answered. Subsequently the case came on to be further heard without a jury, before Mason, C. J., who ordered that the petition be dismissed as against the respondent Reed; and the petitioner alleged exceptions. The facts appear in the opinion.</p>

Contract or tort, for damages to the contents of the plaintiff’s trunk. Trial in the Superior Court, without a jury, before Sherman, J., who reported the case for the determination of this court, in substance as follows.

<p>Mandamus — Appointment by Mayor of Member of Board of Health without Confirmation of City Council.</p> <p>The mayor of Woburn, under the revised charter of the city, St. 1897, c. 172, can make a valid appointment of a member of the board of health without the confirmation of the city council.</p>

<p>Contract, against the executor of the will of Esther L. Robbins, upon a promissory note for $500, dated September 24,1894, payable to the plaintiff on demand, and signed by the testatrix. Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Hattie A. Ray, called as a witness by the plaintiff, testified that the note in suit was signed by the defendant’s testatrix, Esther L. Robbins. On cross-examination the witness testified that Robbins died in Lawrence on June 16, 1895; that the witness had been in her employ for thirteen years before her death, working around the house, keeping books for her, and doing anything she was told to do; that she was on quite intimate terms with her; that the plaintiff never saw the note in suit during the lifetime of its maker, but that the witness delivered the note to the plaintiff on the morning after Robbins died; and that the note was delivered to the witness by Robbins immediately after she wrote it at its date, together with three other notes, payable to different persons, all in one envelope sealed, and marked “ A. D.,” which envelope the witness kept in her possession until the morning after Robbins died, and then opened it and delivered the notes to the persons for whom they were intended.</p> <p>The witness was asked by the plaintiff, “ What did Miss Robbins say to you when she handed this note to you ? ” To the admission of this evidence the defendant objected; but the judge admitted it. The witness thereupon answered, “ She said, ‘ I do not feel as if I have paid Aunt Angie for all she has done for me, so I give her this note to part pay her. After my death, be sure Aunt Angie gets it. Do not leave it around so Simonds can get it, or there will be trouble if he does get it.’ ” And the defendant excepted.</p> <p>The witness was then asked by the plaintiff, “ Do you recall her saying anything a day or two before she died, in the presence of Miss Daggett, about the note?” To the admission of this evidence the defendant objected, but the judge admitted it. The witness answered, “ She said to me,' Be sure and deliver the notes as I told you to.’ ” And the defendant excepted.</p> <p>The witness further testified that Robbins owed her a sum of money at her death; and that the defendant, both as executor and in his individual capacity, owed her something.</p> <p>The defendant thereupon asked the witness, “How much do you claim the defendant, as executor, owes you ?” To the admission of this evidence the plaintiff objected ; the judge excluded it; and the defendant excepted. The defendant then asked the witness, “ What claim do you claim to have against the defendant individually?” To the admission of this evidence the plaintiff objected; the judge excluded it; and the defendant excepted.</p> <p>The plaintiff, called as a witness by the defendant, testified that she first saw the note in suit on the morning after Robbins died; that the note was then in the hands of Miss Ray; that Miss Ray worked for the testatrix up to the time of her death, taking care of her clothes, writing for her, and doing everything required of her; that the testatrix was a niece of the plaintiff; that the witness was present with the testatrix much of the time during the two or three days preceding her death, and did what she could for her, but did it with the expectation of remuneration for her services; that she knew there was a note for her; and that she had been told that fact by Mrs. Jones, her sister, but the testatrix never told her so.</p> <p>On cross-examination, the plaintiff testified that after the testatrix came to Lawrence, the day before she died, she said to the witness, “ There is a note for you,” and, turning to Miss Ray, she said, “Give her the note”; that the plaintiff worked for the testatrix during her lifetime, dressmaking, and at one time spent a week with her and did all the work, housework, dressmaking, and collecting some rents ; and that the note in suit came to her sealed in an envelope with the letters “ A. D.” written on it.</p> <p>Harriet D. Jones, called by the plaintiff as a witness, testified that she was a sister of the plaintiff and aunt of the testatrix, who died in the witness’s house in Lawrence.</p> <p>The plaintiff asked the witness, “ Did you ever learn anything from Miss Robbins about this note ? ” To the admission of this evidence the defendant objected, but the judge admitted it. The witness answered, “ I was at her home some time in the early spring and sat talking with her, and she told me of my sister’s kindness. She said, ‘ I have not half paid her, but I have made her a note for five hundred dollars.’ She had given it to Miss Ray to hold for her.” And the defendant excepted.</p> <p>The witness further testified, subject to the defendant’s exception, that the testatrix spoke of the note several times, and on the day she died asked Miss Ray to give the note to the plaintiff, who was in the room at the time.</p> <p>At the close of the evidence, the defendant requested the judge to instruct the jury as follows:</p> <p>“1. Upon all the evidence the plaintiff is not entitled to recover. 2. If Esther L. Robbins made the note in suit intending to keep it in her possession, either in her personal possession or in the possession of her agent or servant, during her lifetime, and that, should she not change her mind and destroy the note before her death, her agent or servant should deliver the note after her death to the plaintiff; and if Robbins did keep the note in her possession or that of her servant or agent until her death, and if after her death her servant or agent, pursuant to oral directions given her by Robbins, delivered the note to plaintiff, the plaintiff not having theretofore at any time been in possession of the note, the plaintiff cannot recover in this action. 3. If Esther L. Robbins made the note in suit and delivered it in her lifetime to Hattie A. Ray, with directions to keep it during her (said Robbins) lifetime and on her death to deliver it to the plaintiff, Ray held such note as agent of Esther L. Robbins, and not as agent of the plaintiff; and Ray had no right to act as agent of Robbins after her death, and could not lawfully deliver the note to the plaintiff after the death of Robbins. 4. If Esther L. Robbins made the note in suit and delivered it in her lifetime to Hattie A. Ray to keep during her lifetime, and Ray, after the death of Robbins, delivered the note, the plaintiff cannot recover. 5. Delivery of a promissory note, as between the maker and payee thereof, must be made by the maker or his agent. An agent cannot act as such after the death of his principal; and if Esther L. Robbins made the note in her lifetime and delivered it to Hattie A. Ray to deliver to the plaintiff after Robbins’s death, and Ray did not deliver the note during the lifetime of Robbins, but did deliver it after her death, the plaintiff cannot recover in this action. 6. Unless the promissory note in question was delivered to the plaintiff during the lifetime of Esther L. Robbins, the plaintiff cannot recover in this action. 7. If Esther L. Robbins made the promissory note in question during her lifetime, and placed it, together with three other notes, in the custody and keeping of Hattie A. Ray, under such an arrangement with Ray that she (said Robbins) could treat them as her own property during her lifetime, and Ray, after the death of Robbins, delivered the note in suit to the plaintiff, the plaintiff cannot recover. 8. The note not being delivered before the death of Robbins, the direction of Robbins to her servant Ray on the day she died cannot operate as a donatio causa mortis, and Hattie A. Ray had no right to deliver it to the plaintiff, but should have delivered it to the defendant, executor of the will of Robbins.”</p> <p>The judge refused to give any of the rulings requested; and the defendant excepted.</p> <p>The judge instructed the jury, among other things, as follows :</p> <p>“ Then comes the question of delivery, because a paper is good for nothing until it is delivered. In order to have this a good and binding note there must have been a delivery.</p> <p>“ How, it is not essential that this delivery should have been made in the lifetime of the maker of the note; that is, there may be circumstances which would make it a good delivery. How the plaintiff claims in this case that this lady who died, being a niece of the plaintiff, considering that services had been rendered to her for which she had not been paid, in the presence of Miss Ray, who was her servant, made a note for $500 and delivered it to Miss Ray, with the instruction when she was dead to deliver it to the plaintiff. The plaintiff claims further that some time before the maker of the note died, the deceased was talking with Mrs. Jones, the sister of the plaintiff, and that she told Mrs. Jones she had made a $500 note and given it to Miss Ray to keep and to be delivered to the plaintiff when the maker of the note should be dead, and that she gave that information to the plaintiff. So it is claimed here by the plaintiff that this note was made and was given to Miss Ray to keep until the decease of the maker, and that the plaintiff had knowledge of the fact through the telling of it to Mrs. Jones by the party deceased.</p> <p>“Now if all these things are true, under those circumstances it would be competent for this woman who died to recall this note at any time before her death. But if she never recalled that note from Miss Ray, and if you find that to be the circumstance, and that position of things remained until after her decease, and if after her decease Miss Ray did deliver it in pursuance of the instructions to deliver that note to the plaintiff, that would be a good delivery. Now it is suggested and it. is true, of course, that if I put things in my servant’s hands in the ordinary way, his possession is my possession, that is, I put them in his hands to be kept for me. But it does not make any difference what relation my servant bears to me, if I put certain things in his hands to be delivered to somebody else; that is not my possession. ... So if that note was given to Miss Ray for the purpose of keeping it and to be delivered to this party, then she did not hold it in the capacity of a servant of the maker of the note, but held it just the same as any other individual who did not bear that relation would hold it. What I want to impress upon you is that the fact that she was a servant in some things to the person who died did not prevent her from being capable of holding this note just the same as any stranger could have held it.</p> <p>“ In the first place, did the person deceased make this note ? is that her signature ? In the second place, if she made it, was there a consideration for it ? And in the third place, was it delivered and kept upon the theory which the plaintiff has claimed in this case, that is, to be delivered to the aunt after the maker’s death ? And if you find that it was, and that the plaintiff knew about it, and assented to it, then you may find that it was a good delivery. But if, on the other hand, there was no consideration for it, or if it was not delivered in the way that has been claimed by the plaintiff, then you must find for the defendant.”</p> <p>The defendant excepted to so much of the judge’s charge as was inconsistent with the defendant’s requests- for rulings.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Three petitions for writs of certiorari to quash alleged erroneous assessments of taxes by the street commissioners of the city of Boston, made under St. 1897, c. 426, entitled “ An Act relative to the sewerage works of the city of Boston,” The first two cases were heard before Knowlton, J., and reserved by him upon the petitions, answers, and certain testimony for the consideration of the full court.

Contract, for the construction of an equipment for melting brass for the defendant. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions in substance as follows. The contract provided that the plaintiff should furnish to the defendant an apparatus for melting, brass, erecting the same in the defendant’s foundry in Cambridgeport, and use crude oil as fuel, after being treated by the Strait process.

<p>Contract — Instructions — Money Had and Received.</p> <p>Where, in an action for money had and received, it appears that the defendant was to care for the plaintiff as well as to take charge for him of his money, the plaintiff being an old man with no relatives near him, and having gone to spend the remainder of his life with the defendant and under his care, an instruction requested by the defendant that if “ all the money . . . was expended by the defendant in the plaintiff’s presence, and with his knowledge and consent, whether in debauch or otherwise,” the plaintiff cannot recover, would be misleading; and the defendant has no ground of exception to a charge which states that if the - money was spent in that way at the request of the plaintiff, he knowing what he was doing and intending it, that would be such a disposition of the money that the plaintiff could not afterwards claim to have it paid back; but if the plaintiff did not in any way acquiesce in that disposition of the money as a part of the repayment to him, or as a gift to the defendant, then it should not be deducted.</p>

<p>Illness caused by Defective Drain — Negligence.</p> <p>In an action for injuries occasioned to two plaintiffs by the failure of the defendant to repair a defective drain on his premises, which adjoined those of the plaintiffs, it appeared that the drain had been effectively plugged up so as to stop the discharge of water before it was shown to the defendant who was notified; that after this plugging and the removal of the water with which the plaintiffs’ basement was then flooded, and until long after the plaintiff in the first case was taken ill, there was no further flooding of the basement, no further notice or complaint to the defendant, and no evidence to warrant anything but a conjecture that the drain continued to discharge water which could affect the plaintiffs’ premises, and the illness of the plaintiff in the second case did not occur until many months after the first flooding. Held, that the evidence would not justify a finding that the defendant was negligent, or that the plaintiffs’ illness was due to the drain. Held, also, that some evidence as to whether, after the second flooding, which was two years after the plugging, a conductor which took rain-water from the roof down the .exterior wall of the defendant’s house was found so to discharge it into the ground that the water could percolate through the soil into the plaintiffs’ basement would not justify a finding that the defendant was negligent with reference to the conductor, or that the plaintiffs’ illness was occasioned by the presence on the defendant’s premises of water from the conductor.</p>

<p>Two ACTIONS, one of tort for conversion, and the other of contract for a breach thereof. Trial in the Superior Court, without a jury, before Fessenden, J., who found for the plaintiff in the first case and the defendant in the second ; and the defendants in the first case and the plaintiffs in the second alleged exceptions, which appear in the opinion.</p>

Two actions of tart, by the administratrix of Timothy Leary, the first under Pub. Sts. c. 112, § 212, for causing his death, and the second for personal injuries previous thereto. Trial in the Superior Court, before Hammond, J., who, at the close of the testimony, directed a verdict for the defendant in each case; and the plaintiff alleged exceptions, which appear in the opinion.

Petition to the Probate Court, by the executor of the will of Rufus G. A. Sherman, late of Bangor in the State of Maine, for instructions as to the payment of a collateral inheritance tax under St. 1891, c. 425, and acts in amendment thereof and in addition thereto. A decree was entered that certain personal property belonging to the estate was subject to such tax, and the executor and the legatees under the will appealed to this court.

<p>Petition, filed February 14, 1898, by the receivers of the Massachusetts Benefit Life Association, praying for an injunction to restrain one David Cummings from the prosecution of the attachment of certain real estate, and that the attachment be dissolved.</p> <p>The petition alleged that Cummings was the holder by assignment of a death claim arising upon two policies issued by the association to one of its members; that on June 30, 1897, before the filing of the petition in this cause, Cummings brought suit upon the death claim and caused to be made and recorded a general attachment purporting to cover all the real estate of the association in Suffolk County; that there then stood in the name of the association two parcels of land, with buildings thereon, in said, county, each of which had originally been mortgaged to the association; that each of the mortgages so taken represented an investment by the association of moneys accumulated as and for an emergency fund, under the provisions of St. 1885, c. 183, § 8, and St. 1890, c. 421, § 14; and that the association foreclosed these mortgages in 1895, and thereafter to the filing of the bill in this cause held the real estate, as it had held the mortgages, as a portion of its emergency fund.</p> <p>The following decree was entered :</p> <p>“ This cause came on to be further heard upon the petition of the receivers, alleging the attachment by David Cummings of certain property claimed by the receivers to be a portion of the emergency fund of the defendant association accumulated and held by said association under the provisions of St. 1890, c. 421, § 14, and praying that said property be declared a trust fund, and that said Cummings be enjoined from further prosecuting his attachment thereof; and after argument by counsel, and upon consideration thereof, it is ordered, adjudged, and decreed as follows; namely, —</p> <p>“ The property attached by said Cummings is declared by the court to be a portion of the emergency fund of said defendant association, and as such to be trust property to be administered by the receivers under the provisions of St. 1890, c. 421, § 14.</p> <p>“ Said respondent David Cummings, his agents and attorneys, are perpetually restrained and enjoined from further prosecuting his said attachment of said property.”</p> <p>Cummings appealed to the full court.</p> <p>The case was argued at the bar in December, 1898, and afterwards was submitted on briefs to all the justices except Meld, C. J.</p>

Contract, on an account annexed. At the trial in the Superior Court, before Hammond, J., it appeared that the writ was returnable on the first Monday of April, 1898, and was entered on that day, to wit, April 4, 1898; that on April 11 the plaintiff filed a claim of jury trial, and the action was entered on the list of cases for trial by jury, and the usual docket entry, “Jury trial claimed,” made; that on May 23 the plaintiff filed a paper reading as follows: “In the above…

<p>Tort, for breaking and entering the plaintiff’s close in Weymouth and causing certain damage thereto. At the trial in the Superior Court, before Dunbar, J., the jury returned a verdict for the defendants y and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p> Damages for Land alleged to have been taken in Connection with the Abolition of a Grade Crossing. </p> <p>At the trial of a petition for the assessment of damages for land alleged to have been taken in connection with the abolition of a crossing of a highway and rail- , way at grade, the petitioner contended that a provision in the decision of the commission appointed under St. 1890, c. 428, § 1, that “ the right to place and maintain the slopes necessary to construct the approaches to the bridge under said railroad tracks conformable to the grade heretofore described ... is hereby taken on the land adjacent to said approaches,” although it directly followed and was a part of the same sentence as a detailed description of the land taken for highway purposes and immediately preceded a provision relative to the discontinuance of certain highways, referred also to the railroad embankment upon which the railroad tracks approached the bridge, and that if in order to raise the track it was necessary to run the slope upon his land adjoining the location of the railroad, then to that extent his land was taken by necessary implication. Held, that the clause referred only to the taking for highway purposes, and that none of the land of the petitioner had been taken.</p> <p>If on the trial of a petition for the assessment of damages for land alleged to have been taken from the respondent under the provisions of St. 1890, c. 428, it is found that no land of the petitioner was taken, the admission of a deed offered in evidence by the respondent, by which the petitioner conveyed to the respondent a part of the land alleged to have been taken after the alleged taking, has no bearing in determining whether the petitioner was entitled to go to the jury on the question of damages.</p>

<p>Contract, upon an agreement in writing by which the defendants agreed to pay to the plaintiff “ one half of the commissions collected on all sales of property in Brookline and Brighton brought into the office by him.”</p> <p>At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions. The facts appear in the opinion.</p>

<p>Devise and Legacy — Trust — Definiteness as to Beneficiary — Public Policy.</p> <p>A testator, by his will, gave to his son F. all the residue of his estate in trust, to sell and dispose of any or all of the real estate, and to invest the proceeds thereof in his discretion, and to pay from time to time in his discretion so much of the income of the trust property as he should deem necessary for her maintenance to the testator’s niece, J., or, instead of paying her any part of such income, to add it to the principal; and provided that the trust should continue so long as F. should remain the husband of M., then his wife, and for such time thereafter as F. should in his discretion desire and determine, but that it should not continue for more than ten years after he should cease to be M.’s husband; that upon the termination of the trust by the death or divorce of M. and the expiration of ten years thereafter, or of less than ten years if F. should so elect, he should have all the trust property as his own, free from any trust, and in fee; and that, in case F. should die prior to the death or divorce of his wife, all the trust property should go to J. in fee. Held, that the trust was valid.</p>

<p>Appeal from the decision of commissioners appointed by the Probate Court to receive and examine the claims of creditors of the insolvent estate of Michael T. F. O’Donnell, deceased intestate, disallowing a claim for rent of certain premises in Boston. Trial in the Superior Court, without a jury, before Stevens, J., who allowed the claim ; and the appellee alleged exceptions, which appear in the opinion.</p>

<p>Personal Injuries — Employers' Liability Act — Defect in Machinery — Negligence— Action■—Person " intrusted” with Care of Machinery — Evidence.</p> <p>An action may be maintained under the employers’ liability act, St. 1887, <;. 270, § 1, cl. 1, for personal injuries caused by the fall upon the plaintiff, while sitting at work, of shafting consisting of a cone shaft with six pulleys attached to the ceiling by brackets and screws, which had been moved the day before the accident by order of the defendant’s superintendent from another part of the room, where it had been up for a long time without falling, by a carpenter who attended to that kind of work under the superintendent’s orders.</p> <p>The words of the employers’ liability act, St. 1887, c. 270, § 1, cl. 1, “ owing to the negligence of the employer, ... or of any person . . . intrusted by him with the duty of seeing that the ways, works, or machinery were in proper condition,” may include a person who, employed as a carpenter, attends to adjusting machinery under the superintendent’s orders.</p> <p>The mother of the plaintiff, in an action for personal injuries, may testify as to what is a fair charge for services rendered by her to the plaintiff.</p>

<p>Contract, to recover compensation for services rendered as civil engineers in the preparation of a plan and profile of a road in the defendant town, at the request of the selectmen thereof.</p> <p>At the trial in the Superior Court, before Hammond, J., there was evidence tending to show that in August, 1896, the plaintiffs, at the request of the selectmen of the defendant town prepared a plan and profile of two miles of a certain road between Ware and Gilbertville; that at a town meeting held on November 5, 1895, under an article in the warrant “ to see if the town will authorize its board of selectmen to propose to the State Highway Commission to pay for the building of about two miles of macadamized road, the same to be built under the direction of the said commission, between Ware and Gilbertville, the condition to be that said highway commission shall build the one mile of State road already petitioned for between said Ware and Gilbertville in the county of Hampshire and one mile of road in continuation thereof already petitioned for in the village of Gilbertville in the county of Worcester,” the defendants voted “ that the town authorize the selectmen to make the proposal to the State Highway Commission to pay for the building of about two miles of macadamized road, the same to be built under the direction of the said commission, between Ware and Gilbertville, the condition to be that said highway commission shall build the one mile of State road already petitioned for between said Ware and Gilbertville in the county of Hampshire, and one mile of road in continuation thereof, already petitioned for in the village of Gilbertville in the county of Worcester”; that at a town meeting held on July 12, 1897, under an article in the warrant “ to see if the town will vote to expend the sum of eight thousand dollars under the direction of the Massachusetts State Highway Commission in the construction of a State highway in the town of Ware on the road leading from Ware to Gilbertville,” the town voted “ that the town expend the sum of eight thousand dollars, under the direction of the Massachusetts State Highway Commission in the construction of a State highway in the town of Ware, on the road leading from Ware to Gilbertville, provided said commission will expend an equal amount during the year 1897, in the construction and continuance of said State road between said Ware and Gilbertville” ; and under another article in the warrant for the same meeting, “ to see if the town will authorize its treasurer under the approval of the selectmen and in accordance with the laws of the Commonwealth to borrow a sum of money not exceeding eight thousand dollars, to be used in constructing a State highway in the town of Ware on the road leading from Ware to Gilbertville,” the town voted “ that the town treasurer with the approval of the selectmen and in accordance with the laws of the Commonwealth be authorized to borrow the sum of eight thousand dollars to be used in the construction of a State highway in the town of Ware, on the road leading from Ware to Gilbertville, payable in eight years from the date of borrowing, in proportionate annual payments, at a rate of interest not exceeding four per centum per annum, and issue the notes of the town therefor ”; and that all these votes related to the road for which the plaintiffs made the plan and profile at the request of the selectmen.</p> <p>At the close of the case, the judge, at the request of the defendant, ruled that, even if the selectmen did make the contract declared on, the town was not bound by the acts of the selectmen, and directed the jury to return a verdict for the defendant.</p> <p>The plaintiffs alleged exceptions.</p>

<p>Contract. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion.</p>

<p>Personal Injuries — Liability to Trespasser.</p> <p>At the trial of an action for personal injuries the evidence tended to show that the plaintiff entered the defendant’s restaurant on the invitation of another boy, and, finding the defendant engaged with customers, the boys passed into the kitchen attached to the restaurant and seated themselves in front of the stove witli their feet in or on the edge of the oven; that having been ordered by the. defendant to leave the kitchen and having disregarded the order, the defendant went into the kitchen, and, saying, “ I will show you how I get my dog out,” drew a pan of scalding water to and fro across the top of the stove with a scraping noise for the purpose of spilling water on the stove and frightening the boys away, and in so doing spilled water on the stove, and thence on the legs of the plaintiff, unintentionally scalding him. Held, that the action could be maintained.</p>

The action was originally begun in the Municipal Court of the city of Boston, and, after judgment there for the defendant, was carried by the plaintiff to the Superior Court on appeal. After its entry in that court the plaintiff discontinued the action.

<p>The first case was a petition to the Probate Court, by the trustee under the will of Frank C. Fiske, for instructions; and, upon appeal to this court, was reserved, with the consent of all parties, by Hammond, J., for the consideration of the full court. The second case was a petition to the Probate Court by the widow of Frank C. Fiske, praying that certain real estate of which he died seised might be set off to her in fee under Pub. Sts. c. 124, § 3; and came by appeal to this court. The third case was a bill in equity, filed in this court by the widow of Frank C. Fiske, against the trustee under his will, to set aside a conveyance of property in trust, and to obtain a conveyance of the same to the plaintiff. The last two cases were heard together by Hammond, J., and, at the request of the parties, reserved for the consideration of the full court; such decree to be entered in each case as law and justice might require. The facts appear in the opinion.</p>

<p>Bill in equity, filed September 22, 1898, in the Superior Court, to compel the defendant to account to the plaintiff for a sum of money received on deposit. The defendant filed a plea to the bill, alleging that the money was deposited and paid out in accordance with certain orders of the Circuit Court of the United States. At the hearing the plea was adjudged good, and the bill dismissed; and the plaintiff appealed to this court. The facts appear in the opinion.</p>

<p>Devise and Legacy— Trust—Premature Suit—Equity — Decree.</p> <p>A testator, by his will, provided as follows: “ All my real estate remaining at the decease of my wife to be held in trust and the same to be equally divided between my grandchildren; the children of my son N. and M., wife of said N., at such time as they shall arrive at the age of twenty-one years, meaning and intending to include any and all children that may be born to the said N. and M. and are living at the death of my wife. Together with all the income that may accrue from the same, after the decease of my wife.” Two of the children of N. and M. who were living at the death of the testator’s wife died before reaching the age of twenty-one, leaving their parents as their heirs; and another child, a minor, survived. The trustee under the will, after the death of one of the children, brought a bill in equity, making the parents and the surviving children parties, for instructions as to whom belonged the share of the real estate to which the deceased child would have been entitled had he reached twenty-one. This bill was dismissed, on the ground that it was prematurely brought. Held, that the decree was a conclusive adjudication against the right of N. and M. at this time, the surviving child still being a minor, to maintain a bill in equity against the trustee, seeking to have a share of the trust property paid over to them.</p>

<p> Enforcement of Restriction in Deed against Use of Land for Business Purposes. </p> <p>Evidence that the owner of land abutting on a city street divided it into lots which he conveyed to numerous grantees subject to a uniform restriction that no buildings except dwelling-houses at least two and one half stories in height set back six feet from the street should be erected thereon will warrant a finding that the original grantor contemplated a scheme of general improvement, and intended to restrict the use of the land to residential purposes for the benefit of all the grantees; and one of such grantees may maintain a bill in equity to restrain another grantee, who, in violation of such restrictions, and in disregard of a seasonable notice from the plaintiff of such violation, so alters his premises that they may be used for business purposes.</p>

<p>Land Damages — Event determining Time of Assessment —Increase inValue between Passage of Statute and Taking of Land.</p> <p>Where land is taken, under St. 1896, c. 516, § 11, for the extension of a street as a part of a scheme of improvement whicli includes the construction of a union station for passengers on railroads entering the southerly part of Boston, the damages are to be assessed at the market value of the land at the time of the passage of the statute, and not at its market value when it is formally taken, nearly a year afterwards, when the price of land in the vicinity has increased by reason of the expected improvement.</p>

<p>Toet, for personal injuries sustained by coming in contact with a barbed wire fence maintained upon the defendant’s land in Boston. The declaration contained two counts, one under St. 1884, c. 272, § 1, and the other at common law. Trial in the Superior Court, before Blodgett, J., who, at the defendant’s request, ruled that the statute did not apply, and that the action could not be maintained at common law; and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Appeal to the Superior Court from a decree of the Court of Insolvency, upon the petition of certain creditors of George M. Keene, under Pub. Sts. c. 157, § 95, annulling a discharge in insolvency granted to him, on the ground that it was obtained' fraudulently. Trial before Bond, J., who, on the motion of the petitioners, dismissed the appeal for want of jurisdiction; and the respondent alleged exceptions.

<p>Land Damages — Grade Crossing — Want of Jurisdiction.</p> <p>The Superior Court cannot entertain a petition for the assessment of damages caused by the taking of the petitioner's land by a railroad corporation, which petition is not brought, as required by § 5 of St. 1890, c. 428, as amended by St. 1891, c. 123, within one year after the date of the decree of the court confirming the decision of the commission appointed under'§ 1 of the first named statute.</p>

<p>Two ACTIONS oe contract, by the administrator with the will annexed of the estate in this Commonwealth of George M. Jerollman, upon two judgments, one recovered on November 12, 1874, in the Miami County Circuit Court of Indiana, and the other recovered on November 2, 1875, in the Circuit Court of the United States for the District of Indiana, by Jerollman against the defendants. Writs dated July 7 and October 21, 1896, respectively.</p> <p>The cases were tried together in the Superior Court, without a jury, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff offered in evidence a certified copy of the record of the judgment sued upon in each case.</p> <p>The defendant Crosby, who alone defended, objected to these records, not because they were not properly certified, but because they were annexed to the respective declarations and had become a part of the pleadings in the case, and therefore could not be considered as evidence on the trial. The judge overruled the objection, and admitted the records in evidence; and the defendant excepted.</p> <p>The evidence tended to show that, prior to the times when the judgments were obtained, the defendants were copartners, engaged in business in Chicago, Illinois; and that they appeared personally or by counsel in the actions in Indiana and made defence thereto.</p> <p>The plaintiff called the defendant Crosby as a witness, and he testified that he never had paid anything upon the judgments ; and that after they were obtained the copartnership was dissolved and he came to this Commonwealth, where he bad since resided.</p> <p>The plaintiff called as a witness Stewart T. McConnell, who testified that he was an attorney at law practising at Logansport, Indiana, and his firm of attorneys, acting as counsel for Jerollman, obtained the judgments; and that the claims and judgments had always been in his hands, and although he had tried to do so, he had been unable to collect the judgments, or any part of them of any of the defendants named therein up to the present time.</p> <p>This was all the evidence offered upon the question of whether or not the judgments, or any part thereof, had been paid.</p> <p>The defendant asked for the following rulings:</p> <p>“ 1. To overcome the presumption of payment as provided in Pub. Sts. c. 197, § 23, the evidence should be such as to produce conviction that the judgment has not in fact been paid.</p> <p>“ 2. On all the evidence the presumption has not been overcome.”</p> <p>The judge, with the consent of the plaintiff, gave the first request for rulings, but refused the second; and found for the plaintiff in each case. The defendant alleged exceptions.</p>

<p>Promissory Note — Consideration — Notice of DisTionoi--Statute of Limitations — Evidence — Defence.</p> <p>If an insurance company assents to the transfer of a policy on condition that the assignee indorses the premium note, there is sufficient consideration for the indorsement.</p> <p>The Pub. Sts. c. 77, § 15, as to notice of dishonor to indorsers, do not apply to an indorsement by a stranger to the note upon a new consideration after delivery.</p> <p>The running of the statute of limitations upon a premium note payable two months after risk ends is not accelerated by the fact that the insurance company might have cancelled the policy before the risk ended.</p> <p>A party to negotiable paper is not entitled to prove that he understood that he signed “ only in his fiduciary capacity as assignee ” in insolvency.</p> <p>A blank indorsement of a premium note by an assignee of the policy authorizes the holder to write in “ the undersigned, in consideration of the assent to the assignment of the policy, becomes bound by the within contract for the payment of the premiums thereon.”</p>

<p>Scire Facias— Trustee’s Answer — Refusal of Trustee to deliver Properly — Demand, — Service— Waiver of Jury Trial— Validity of Sale.</p> <p>In scire facias against a trustee, he may answer and prove any matter that may be necessary and proper for his defence, notwithstanding that he was charged in the action in which he was originally summoned; and if he has answered previously, he may be allowed to file a new and additional answer at any stage of the case.</p> <p>If the return upon an execution in a trustee process against the trustee, who is out of the Commonwealth, recites that the officer delivered an attested copy of it, with his demand indorsed thereon, to the trustee’s attorney, and tendered him a sum claimed to be due for storage, and also made a like demand on a person who was in charge of the trustee’s storage warehouse, this does not show such a service as is required to create a liability under Pub. Sts. c. 183, § 70.</p> <p>If it does not appear that there was any order of the court for a payment or tender to the trustee in a trustee process of the amount due him, as is required by Pub. Sts. c. 183, § 66, in order to make it his duty to deliver the goods in his possession to the officer who demands them on the execution, no liability, under § 70, for neglect so to deliver them is shown.</p> <p>It is not error to deny a motion for a trial by jury on the issues raised by an amended answer allowed after a waiver of a trial by jury has been filed.</p> <p>The judge, sitting without a jury in a scire facias against a trustee for refusal to deliver goods in his possession, having found that the value of the goods at the time of their sale under an order of court was less than the amount of the defendant’s lien upon them, it was unnecessary to consider whether the order of sale was valid.</p>

<p>Contract, upon a promissory note for $2,500, dated June 19, 1896, payable four months after date to the plaintiff or order, and signed by the defendant. At the trial in the Superior Court, before Braley, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion. . -</p>

Contract, by the holder of five bonds of the Highland Street Railway Company, to recover damages for the defendant’s refusal to deliver its preferred stock in exchange for such bonds at maturity. The case was submitted to this court upon an agreed statement of facts, the material parts of which appear in the opinion.

<p>Contract—Mutually dependent Covenants — Effect of Death and Non-appointment of Administrator within Time limited for Performance—Tender-Action.</p> <p>In the case of mutual covenants for the exchange of land, the presumption is that performance on the two sides is to be concurrent.</p> <p>If, before the time limited in a contract for the performance of covenants mutually dependent, one of the parties dies and no administrator of his estate is appointed before such time has elapsed, the other party is not in default for not having demanded or offered performance within the time, and the contract is not discharged at the end of that time.</p> <p>If one party to a contract dies before the time limited therein for the performance of covenants mutually dependent, and on the last day, no administrator of his estate having been appointed, the other party, to save his rights, tenders performance on his side to the other’s widow and to a person who had been the other’s attorney in other matters and who afterwards is appointed administrator, the deed tendered running to the deceased party, the tender, although defective as such, is evidence that he was ready and willing to perform and that the administrator knew that he was, but it does not put the administrator in default; and the latter is not liable to an action on the contract, it not appearing that he has repudiated it, or that the offer of performance has been renewed since his appointment.</p>

<p>Petition for a writ of mandamus to compel the respondents to proceed with the examination of a poor debtor, under Pub. Sts. c. 162. Hearing before Hammond, J., who, at the request of the parties, reserved the case for the determination of the full court. The facts appear in the opinion.</p>

<p>Tort, for personal injuries caused by an alleged defect in a highway in the defendant town. Trial in the Superior Court, before Sherman, J., who refused to rule, as requested by the defendant, that on all the evidence the plaintiff could not recover.</p> <p>The jury returned a verdict for the plaintiff; and the judge reported the case for the determination of this court. If the ruling requested should have been given, judgment was to be entered for the defendant; otherwise, the verdict was to stand. The facts appear in the opinion.</p> <p>The case was argued at the bar in November, 1898, and afterwards was submitted on briefs to all the justices except Field, C. J.</p>

<p>Contract, upon an account annexed, to recover a balance of §187.50, for services as superintendent of sewer construction in Brockton, from November 12, 1895, to January 4, 1896. Trial in the Superior Court, before Bond, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff testified that he was a contractor; that in the spring of 1895 he and one F. C. Cates, as copartners, made a contract with the city of Brockton to build a system of sewers ; that two or three weeks after work was started, he assigned his interest in the contract to Cates, and thereafter had no pecuniary interest in the contract itself, but continued to work as superintendent, and was paid for his services by Cates up to September 12, 1895; that on or about that date the defendant and Cates came to the work together, and the defendant went with the timekeeper and paid off the men ; that the plaintiff had never seen the defendant before; that a day or two afterwards the defendant came again to settle certain outstanding claims, and consulted with the plaintiff about the progress of the work; that the defendant was there every week, and consulted with the plaintiff from time to time as to how the work was getting along, and went round with the time-keeper on Saturday nights and paid off the men ; that the plaintiff saw the defendant give the time-keeper money to put in envelopes, and go with the timekeeper to deliver the envelopes to the employees; that between September 12 and November 12,1895, the plaintiff received $50 for his own services from the defendant, personally, and the plaintiff got other sums from the time-keeper; that on November 12 the plaintiff went to the defendant, who was with the timekeeper paying off the men, and asked him if he had any money for him, and the defendant said he had not; that the plaintiff thereupon told him that if he did not get any money he should quit; that the plaintiff then went to the city engineer, one Snow, and with the latter drove to the work; that the buggy in which they were was stopped about fifty or seventy-five feet from where the defendant was; that Snow got out of the buggy, went to the defendant and had a conversation with him which the plaintiff did not hear, and Snow then came back and said, “ Brigham, it is all right; you are going to stop; he says he will pay you ”; and that that night the plaintiff received from the time-keeper $25.</p> <p>The defendant objected to the admission of what Snow said to the plaintiff, and the judge said that it did not amount to anything unless he could show authority. The plaintiff said that he proposed to do so. The judge then said, “We will see what use may be made of it, and we will strike it out later if you do not connect it.” There was no further action taken in regard to this; and no request was made by the defendant’s counsel to strike it out.</p> <p>The plaintiff testified further that after the above conversation he drove back to the work, and from that time on continued to work until it was finished, on January 4, 1896;. that besides the $25 last referred to he received two other payments, at different times, of $25 ; that from November 12 to January 4, the plaintiff saw the defendant at the work every Saturday, and talked with him about the progress of the work, and the defend-' ant also came to his room once or twice and asked about the progress of the work; and that for the work which he did from November 12 to January 4 a fair compensation was $35 a week.</p> <p>The plaintiff was asked the following question: “ When you went to work after your conversation with Snow, on November 12,1895, to whom did you give credit in doing that work ? ”</p> <p>In reply to a question by the judge as to what his question meant, the plaintiff’s attorney stated that he meant to whom did the plaintiff give credit for future payments. The judge admitted the question. The witness answered, “James J. Herrick ” ; and the defendant excepted.</p> <p>The plaintiff was then asked, “Did you at that time give credit to or rely upon the credit of Mr. John P. Spaulding? ” To this question the defendant objected, but it was admitted. The witness answered, “ I did not know the man; no, sir; I did not ”; and the defendant excepted.</p> <p>On cross-examination, the plaintiff testified that the first time he met the defendant in Brockton, he did not tell him that he represented John P. Spaulding, or that he went there as Spaulding’s clerk; that the reason the defendant went round to see the creditors was that Cates had made an assignment to the defendant, and the defendant was paying the bills ; that he only knew that, from what Cates had told him, he had assigned the work to the defendant; that the plaintiff and the defendant went round to see the creditors of the firm; that the plaintiff did not hear one Mitchell, one of the creditors, ask the defendant under whose authority he was acting, and did not hear him reply that he was acting under Spaulding’s authority, or that he was Spaulding’s clerk in the business of adjusting these matters; that the plaintiff did not know Spaulding at all, and never saw or heard of him before; that after the defendant came to the work the plaintiff called upon him at the office of Nash, Spaulding, and Company in Boston, after this contract had been made ; that he received $50 from the defendant personally, on the second or third day after the defendant first went down to the work; that he telephoned the defendant, at the office in Boston of Nash, Spaulding, and Company, in regard to the terms of a settlement that the plaintiff had made with Mitchell; that the payments made to the plaintiff and shown in the account annexed as credits, were made by the time-keeper; and that he never had any conversation with the defendant whereby the latter engaged him as superintendent of the work.</p> <p>During the cross-examination of the plaintiff, the defendant offered in evidence the contract between the city of Brockton and Brigham and Cates, and in objecting to the admission of this the plaintiff’s counsel stated that he claimed under a special contract, whereby the plaintiff was employed by the defendant.</p> <p>On re-direct examination, the plaintiff testified that it was after November when he first knew that Spaulding had anything to do with the work.</p> <p>F. Herbert Snow, called as a witness by the plaintiff, testified that he was the city engineer of Brockton in 1895, and clerk of the sewerage commission, and had charge on behalf of the city of the construction of the sewer; that he knew by hearsay only of an assignment from the plaintiff to Cates in the spring of 1895 ; that the firm attempted to assign their contract to the defendant ; that such assignment was not recognized by the commission, except that the city paid the money coming due under the contract to the defendant; that he first saw the defendant in connection with the work about the middle of the summer, and quite frequently after that, and talked with him about the work and payments of money; that he had seen the defendant with a bag containing envelopes, and had seen him at the work with the bag and envelopes, but could not state that he saw him hand the envelopes to the laborers; that one day when the plaintiff was at the city hall the plaintiff came to him, and, in consequence of a conversation, the witness went with the plaintiff and found the defendant at the work; that he told the defendant that it would not do to have the plaintiff leave the work, and the plaintiff would surely do so if he did not receive some money, and after stating the case and talking with the defendant the latter promised the witness that he would pay the plaintiff some money, and that he should remain on the work; that in several ways the witness urged upon the defendant the importance of retaining the plaintiff, and insisted, as city engineer in charge of the work and the person upon whom the responsibility of the work rested, that the plaintiff should be retained on the work, and that meant that the plaintiff must have some money that night, and the defendant promised that he would pay the plaintiff ; that this conversation took place at the work; that the plaintiff had driven him as near to where the defendant was as he could, and the witness had got out and walked the rest of the way, but the plaintiff was near the place where the defendant and the witness had the conversation; that after the conversation the witness went direct to the plaintiff, who was within sight of the place where the defendant was; and that the defendant did not say anything to the witness about communicating with the plaintiff. The witness was then asked what he said to the plaintiff when be returned to him after the conversation with the defendant. To this question the defendant objected, but the question was admitted; and the defendant excepted. The witness answered, “ I said to Mr. Brigham that Mr. Herrick had promised me he would pay him some money, and that he should remain on the work.” The witness further testified that after that conversation the plaintiff continued as superintendent of the work, and that the witness frequently saw the defendant at the work in company with the time-keeper when the employees were being paid.</p> <p>On cross-examination, the witness testified that, as representing the city, he never recognized the defendant as a contractor; that he always held Brigham and Cates responsible for the completion of the work; that the defendant did not authorize the witness to communicate his promise to the plaintiff, and did not authorize him to hire the plaintiff for him; that, as city engineer, he demanded that the plaintiff be retained on the work, and the defendant promised that he would retain him; that the surety on the contractors’ bond admitted that the contractors were unable to complete their contract, and volunteered to carry on the work, and did undertake to complete the work; that the money coming due on the contract was paid to the defendant and receipts taken from him, but the bills were made out in the name of Brigham and Cates; that in the witness’s office they recognized Brigham and Cates, but the witness thought the treasurer’s office recognized the defendant; and that the witness saw money paid over to the defendant in the city treasurer’s office.</p> <p>On re-direct examination, the witness testified that the reason he went to the defendant when the plaintiff told him he was going to leave was that the defendant was the only one there was to go to.</p> <p>The defendant testified that he was, in 1895, a clerk in the employ of Nash, Spaulding, and Company; that he first met the plaintiff at Brockton; that the second time he went to Brockton he went with the plaintiff and Cates to visit certain creditors of the firm, and stated to them, in the presence of the plaintiff, that he was there representing John P. Spaulding; that one day Snow came to him while he was riding round with the paymaster, after he had refused to employ or pay the plaintiff, and said that the plaintiff proposed to leave if he could not get any money; that he did not agree to pay the plaintiff; that he did not authorize Snow to communicate the conversation to the plaintiff; that he never engaged the plaintiff in any capacity to work for him; that in giving the paymaster what money was needed to pay the bills, and in helping the paymaster distribute the money in the envelopes, he was acting as a representative of Spaulding; and that the plaintiff visited him at the office of Nash, Spaulding, and Company in Boston on several occasions, once in regard to the employment of additional men on the work, asked for by Snow, and on one occasion after the work was finished in Brockton for the purpose of borrowing a sum of money, which he asked as a loan and not as a payment on account.</p> <p>On cross-examination, the witness testified that after a certain day he received the money due under the contract from the city of Brockton, and paid it out for the work that was done, but as agent only; that he never gave any directions to the plaintiff in regard to the way the work should be carried out, or in regard to the number of men to be employed; that he did tell the plaintiff to discharge one man, and the witness identified a letter signed by himself, which was put in evidence, in which the defendant directed the plaintiff to discharge a certain employee; that he supplied Cates with what money was necessary to carry on the work of completing the contract; that his instructions were not to give the firm of Brigham and Cates any money except what was necessary; that the plaintiff did have some money after the time of the conversation with Snow; and that he authorized the paymaster to pay the plaintiff what money he considered necessary to pay his board.</p> <p>On re-direct examination, the witness testified that he never paid the plaintiff $50 ; and that the plaintiff received $50 “at that time,” but not from him.</p> <p>On re-cross-examination, he testified that he was present when the $50 was paid.</p> <p>The defendant’s counsel then read to the jury an article of the contract between Brigham and Cates and the city of Brockton, providing, in effect, that the contract should not be assigned without permission of the city.</p> <p>At the close of the evidence, the defendant asked the judge to rule as follows : “ 1. On all the evidence in the ease the plaintiff is not entitled to recover. 2. If the jury find that, in the completion of the work under the original contract between Brigham and Cates and the city of Brockton, the defendant acted as the agent of John P. Spaulding, the plaintiff cannot recover.”</p> <p>The judge refused so to rule ; and the defendant excepted.</p> <p>The judge instructed the jury that the evidence was not such as to warrant them in finding that there was an express contract between the parties, but submitted to them, under instructions not excepted to, the question whether or not there was an implied contract.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Mechanic’s Lien — Exceptions — Laic and Fact — Labor done under Subcontract — Evidence.</p> <p>If a bill of exceptions alleged at the trial of a petition to enforce a mechanic’s lien, under Pub. Sts. c. 191, does not purport to state all the material evidence bearing upon the questions raised, requests for rulings that the petitioner cannot maintain his action, and that eacli item in the account is not supported by sufficient evidence and should he disallowed, will be held to have been properly refused.</p> <p>Where, at the trial of a petition to enforce a mechanic’s lien, under Pub. Sts. c. 191, the evidence is conflicting upon the question whether any labor was performed on a certain day, which was within thirty days prior to the filing of the certificate of lien, it is a question of fact for the judge sitting without a jury to decide between the witnesses, and this court cannot say that there was no evidence that work was not done on that day.</p> <p>A mechanic’s lien may be established for labor done by a person other than the petitioner under a subcontract with him; and, at the trial of a petition to enforce the lien, a paper containing an account of such labor written and given to the petitioner by the subcontractor is admissible in evidence on the issue of the petitioner’s good faith in making the statement contained in the certificate of lien.</p>

<p>Trustee process. William S. Rendle, summoned as trustee, answered that, at the time of the service of the writ upon him, he had not in his hands or possession any goods, effects, or credits of the defendant; that on or about March 1,1897, the defendant entered into a contract with the city of Boston for the building of two wooden piers for the sum of $31,090.35 ; that the defendant applied to the trustee to advance to'him the sum of $500 to secure the contract, which the trustee agreed to do on condition that the moneys coming due under the contract should be assigned to him to secure such payments, and that he should retain the moneys and have one .half the net profits of the transaction for his own labor and personal attention; and that thereupon an assignment was made by the defendant to the trustee, which assignment was set out, and was upon the following trusts:</p> <p>“1. To repay and reimburse himself, the said William S. Rendle, for all moneys advanced or legal liability incurred by him during the progress of said work and in its due execution. 2. To pay and discharge all legal debts incurred in the furnishing of lumber, labor, and materials to the parties furnishing the same. 3. To deduct one half of the profits derived from said contract over and above all costs and expenses incurred in its construction, and retain the same for his own trouble and personal attention. 4. To pay over to the said Alexander Mclnnis ' the balance of said moneys after aforesaid deductions.”</p> <p>The answer further alleged that the assignment was duly recorded in the office of the clerk of the city of Boston on April 3, 1897, and notice thereof given to the city; that at the time of the service of the writ upon him, the trustee had received under the assignment, from the city of Boston, the sum of $22,244.02; that at the time of such service the defendant was indebted to the trustee for cash advanced by the trustee to the defendant, and for labor and materials furnished and provided by the trustee for the defendant in pursuance of the contract and assignment in a sum equal to or in excess of $26,504.31, leaving the defendant indebted to the trustee at the time of service upon the latter; that at the time of service the contract was only partially completed, and it was not completed and final payments received by the trustee from the city of Boston until the early part of December, 1897 ; that the trustee was advised that no moneys were due under the assignment to the defendant until the contract was fully completed and all moneys were paid to the trustee from the city of Boston; and that he had no moneys, goods, or credits of the defendant, with the exception of those from the assignment in his hands at the time of service upon him.</p> <p>In the Superior Court the trustee moved that he be discharged upon his answer. This motion was overruled, and the trustee ordered to answer further.</p> <p>The plaintiffs then filed thirty interrogatories to the trustee, seeking, in substance, an account of all the receipts and disbursements of the trustee in pursuance of the contract and assignment, the fifth interrogatory being as follows: “ Will you annex to your answer to this interrogatory a copy of the contract between said Mclnnis and the city of Boston, referred to in your answer as trustee herein ? ”</p> <p>The answers of the trustee to the first four interrogatories are not material to be stated, the answer to the fifth interrogatory being as follows: “ Answering interrogatory 5, the said trustee says there is embodied in his answer already filed in this cause a copy of said contract, and he is at present unwilling to furnish another.”</p> <p>As to the remaining twenty-five interrogatories, “the said trustee says that he is advised by his counsel that each and every of said interrogatories has relation to an assignment set forth in the answer of the trustee already filed in this cause, and that this court decided it to be a good and valid assignment.</p> <p>“ And he begs to refer to his answer already filed, and says that he is further advised that all said interrogatories are incompetent and irrelevant, and he prays the court whether or not he should be obliged to answer the same.”</p> <p>The trustee again moved that he be discharged upon his answer, and also upon his answers to the interrogatories ; and the plaintiffs moved that the trustee be ordered to make specific answers to the interrogatories not then' answered by him.</p> <p>The trustee’s motion was overruled, and the plaintiffs’ motion was allowed, and the trustee ordered to answer by a day named; and the trustee appealed to this court.</p> <p>Subsequently, upon motion of the plaintiffs, the trustee was defaulted and charged for failure to answer as required; and the trustee appealed to this court.</p>

Contract, upon a poor debtor’s recognizance, entered into by the first named defendant as principal, and by John GL Cooper, the other defendant, as surety. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal by the defendant surety, upon agreed facts, the material parts of which appear in the opinion.

<p>Being present where Implements for smoking Opium are found — Description of Place — Complaint — Statute — Exceptions.</p> <p>It is no objection to a complaint under St. 1895, c. 194, for being present where implements for smoking opium are found, that there is no allegation that the defendant was knowingly, wilfully, and wantonly in the place described; that there is no description of the instrument used for smoking opium; that there is no criminal intent set forth; that the defendant is charged with being present when opium implements were found, with selling opium to be used in an unlawful manner, with unlawfully resorting to the place described, and with unlawfully giving away opium to be unlawfully used; and that the complaint directs the seizure of property, whether used in the smoking of opium or not, but names no owner or keeper of the place.</p> <p>The description of the place in a complaint under St. 1895, c. 194, for being present where implements for smoking opium are found, as “ the rooms designated as suite two in the first story of the building situated and numbered sixty-three in E. Street in said city of B.,” there being also other allegations setting forth that the implements were found in such rooms, is sufficient.</p> <p>It is not necessary in a complaint under St. 1895, e. 194, for being present where implements for smoking opium are found, to allege who is the keeper of the premises, unless a person is charged as keeper.</p> <p>The complaint in this case, which was brought under St. 1895, c. 194, for being present where implements for smoking opium were found, follows the words of the statute, and is sufficient.</p> <p>The objection, that the record in a criminal case fails to show that the defendant ever pleaded to the complaint, if not taken in the Superior Court, is not open on a bill of exceptions.</p>

<p>Will— Codicil — Life Estate during Life or Widowhood—Power to Mortgage.</p> <p>A testator gave by will to his wife a defeasible life estate in his estate real and personal remaining after the payment of certain small bequests, with a remainder to his heirs at law if she married again, and with a remainder to certain of his descendants if she remained unmarried uqfil her death. Six years later he made a codicil, in which, after ratifying and confirming his will except as changed therein, he provided, “ Whereas by said will I gave my wife A. the use, income, and improvement of all residue of my property, on condition she did not marry again, I hereby her eight hundred dollars per year for her comfortable support, and hereby authorize and empower her to mortgage any part of my real estate sufficient to give her the said eight hundred dollars per year, providing the net income of my said estate does not produce said amount of eight hundred dollars per year.” The testator had lived happily many years with his wife, and since the making of his will the net income of his estate, which consisted of both realty and personalty, had decreased, and both he and his wife were advanced in years. Held, that the will and codicil, read as one instrument, said, in substance, so far as related to the wife, that she was to have a life estate during her life or widowhood, and, in case the net income of the estate did not equal eight hundred dollars, she might mortgage to meet the deficiency.</p>

Appeal, by the executors of the will of Reuben Lewis, who was the executor of the will of Sumner Shattuck, from a decree . of the Probate Court, construing the latter will and revising the account of the executor. Hearing before Knowlton, J., who entered two decrees; from each of which the appellants appealed to the full court. The facts appear in the opinion.

<p>Bill in equity, filed April 2, 1898, in the Superior Court, for the dissolution of the firm of J. Baker and Company, composed of Joshua Baker, the plaintiff, and Joshua Baker, Junior; and for the appointment of a receiver. The bill alleged that Joshua Baker had, without the knowledge or subsequent ratification of his partners, and in fraud of their rights, affixed the firm name to sundry promissory notes as maker and indorser, for his own benefit. On April 6, 1898, a decree was entered in accordance with the prayers of the bill.</p> <p>On September 27, 1898, the Monument National Bank filed a petition in the cause, asking to prove against the estate of J. Baker and Company a promissory note for $1,500, dated February 8, 1898, payable four months after date to the order of Joshua Baker, signed by Charles H. Richardson, and indorsed “ Joshua Baker. J. Baker & Co.” Hearing of the petition before Bishop, J., who found the following facts.</p> <p>The note was given in part renewal of another note for the sum of $1,750, dated September 10,1897, signed and indorsed by the same names, and payable to the order of Joshua Baker in four months from date. Upon the maturity of the first note Baker paid the petitioning bank the sum of $250 in cash, and gave the note sought to be proved to the bank for the balance, and took up the first note. Baker indorsed the firm name of J. Baker and Company upon both notes without the knowledge or assent of either of his copartners, and neither of them subsequently ratified the indorsements, and no part of the proceeds of the discount of the notes went to the firm, but the same went to his own use ; and the names of Joshua Baker and J. Baker and Company indorsed upon the notes were both written by Baker. The first note was enclosed in a letter signed by Baker, which was addressed to and received by the cashier of the bank, and which contained the following: “We have good captains in our employ who we frequently assist, and the enclosed I offer you I do not hesitate to say is a strong one for the reason our concern, J. Baker & Co. do not have any notes out of any nature.”</p> <p>The first note was discounted, and the proceeds thereof, less interest, were sent to Baker by a check payable to his order.</p> <p>The bank had no communication with Richardson, the maker of the note; and, in dealing with Baker, understood and supposed that it was dealing with him as a member of the firm of J. Baker and Company.</p> <p>The first note was discounted, by the bank in good faith, for value, under the belief on the part of the bank that the proceeds were for the use and benefit of the firm, without notice that the note was for the benefit or accommodation of any person or persons other than the firm, unless the letter in which the note was enclosed to the bank was, as matter of law, notice that the note was accommodation paper ; and the same finding was made as to the second note sought to be proved in this case. The judge ruled that, as matter of law, the letter was notice to the bank that the first note was accommodation paper and was indorsed by the firm for the benefit and accommodation of a person or persons other than the firm, and that the bank was affected with notice thereof, and was a holder of the second note with the same notice; dismissed the petition ; and reported the case for the determination of this court. If the ruling was wrong, the petition was to be allowed, and the note proved for the sum of' $1,500, with interest from the maturity of the note ; otherwise, the order dismissing the petition was to be affirmed.</p>

<p>Bill in equity, filed November 22, 1895, in the Superior Court, against John J. Merrill, Gusteen I. Kenerson, and Mary J. Kenerson, to rescind a sale of certain personal property. A decree was ordered for the plaintiff; and the defendants appealed to this court. The facts appear in the opinion.</p>

<p>Bill in equity, filed October 8,1898, by the owners of certain lands and flats on the South Bay, so called, in Boston, to restrain the board of harbor and land commissioners from dredging the same. Hearing before Holmes, J., who, at the request of the parties, reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Petition, filed December 28,1898, for a writ of habeas corpus to the keeper of the jail in Suffolk. Hearing before Knowlton, J., who, at the request of the parties, reported the case for the consideration of the full court. The facts appear in the opinion.</p> <p>The case was argued at the bar in January, 1899, and afterwards was submitted on briefs to all the justices, except Field, C. J.</p>

Replevin of two car-loads of lumber. Trial in the Superior Court, before Richardson, J., who reported the case for the determination of this court, in substance as follows.

<p>Land Damages — Diversion of Water Supply in Construction of Sewer — Metropolitan Sewerage Act— Temporary Damage — Bar.</p> <p>If an easement in land is taken by the Metropolitan Sewerage Commissioners under St. 1889, c. 439, and St. 1890, c. 270, for the purpose of constructing and maintaining a main sewer, the owner of the land may maintain a petition, under § 1 of St. 1890, for an assessment of damages caused to his remaining land by the diversion of the water supply in the construction of the sewer, although the water returns undiminished to the premises after the sewer is finished; and the petitioner is not barred by the fact that, after the taking, he conveyed the premises, excepting from the conveyance the damages now sued for, to a person who, in his own name, without objection by the Commonwealth, recovered damages for such taking.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries sustained by the plaintiff while employed as a carpenter by the defendant. Trial in the Superior Court, before Hardy, J., who, at the defendant’s request, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, in two counts, for personal injuries sustained by the plaintiff, and for the aggravation of the injury, through the alleged negligence of the defendant. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the defendant on the first count, and for the plaintiff on the second count; and the defendant alleged exceptions. The facts appear in the opinion.</p>

Contract, upon three promissory notes, made by the defendant, payable to the order of her husband, T. A. Whicher, indorsed by him and others, and delivered to the plaintiff. The indorsements on all the notes, omitting the indorsements of interest, were as follows: “ Waiving demand and notice. T. A. Whicher. Edward Whicher. Waiving demand and notice.

<p>Will — Abatement of Legacies — Agreement without Consideration — Exoneration of Specific Devise — Mortgage — Deficiency of Assets—Public Charities — “ Relationship ” — Residuary Clause.</p> <p>Where the twelfth item of a will and all the items that follow it give legacies only out of the rest, residue, and remainder of the estate, after the payment of the legacies mentioned in the items that precede it, the contention that the payment of legacies under the first eleven items was erroneous, on the ground that the estate was insufficient to pay the legacies in full, and that these should abate proportionally with the others, is unsound.</p> <p>A testator gave by will to the Young Men’s Christian Association in H. “the sum of fifteen thousand dollars in addition to the ten thousand dollars for which I now stand pledged.” He had previously signed and delivered to the officers of the association a writing in these words: “ H., December 2, 1890. Believing in the work of the H. Young Men’s Christian Association, and realizing its need of a building of its own in which to do a more successful work in leading the young men to a right relation to their fellows and their God, I now subscribe the first five and the last five thousand dollars of seventy-five thousand dollars to be raised for the purpose of erecting in our city a building to belong to the Young Men’s Christian Association.” This writing was without any valuable consideration, and only a little more than eleven thousand dollars, exclusive of the subscription by the testator, had at the time of his decease been subscribed or raised for the purposes mentioned in the writing. Held, that the pledge was no longer in force, and that the legacy was for $15,000 only.</p> <p>Where a testator directs his executors and trustees to pay off all mortgages and Other encumbrances on certain real estate specifically devised by him and then convey it to the devisee, the executors and trustees are to pay the whole of the mortgage and not merely such proportional part of it as they pay of the pecuniary legacies, in view of the necessary abatement of them.</p> <p>The general rule in case of a deficiency of assets is, that, unless it appears from the will that the testator otherwise intended, all general pecuniary legacies abate in equal proportion; and there is no legal difference between legacies to individuals and legacies to public charities; nor does relationship furnisli any test, although all such facts may be considered in determining the intention of the testator; and in the case in question there was nothing to justify a finding that the testator intended to give the legacies to individuals precedence over legacies to charities.</p> <p>The words “further” and “then” in the phrase “further, my said executors and trustees shall then pay over the following gifts and bequests, namely,” etc., do not ordinarily denote anything more than an order of sequence; and so far as is known they have never been held, without more, to make the legacies following them residuary; and they have repeatedly been held not to import a preference.</p> <p>The reference in the last item of a will to the fact that “ certain of the legacies and bequests named above are limited to be paid after certain events, as recited,” etc., does not relate to the question of the abatement of legacies, but seems to refer partly to the distinction between legacies payable before the death of a legatee and those payable afterwards.</p>

<p>Writ oe entry, dated February 12,1897, to recover a parcel of land in Swansea. Plea, nul disseisin. Trial in the Superior Court, without a jury, before Hammond, J., who found for the demandant; and the tenant alleged exceptions, which, Hammond, J., having become a justice of this court, were allowed by Dewey, J. The facts appear in the opinion.</p> <p>The case was argued at the bar in October, 1898, and after-wards was submitted on briefs to all the justices, except Field, 0. J.</p>

<p>Land Damages— Challenge to Juror—Evidence — Discretion of Judge.</p> <p>Two petitions for the assessment of damages caused by the taking of land belonging to the same person in different municipalities by the Metropolitan Park Commission, under St. 1893, c. 407, were ordered to be tried together. At the impanelling of the jury, the petitioner peremptorily challenged three jurors. The respondent then challenged three jurors, hut the petitioner objected, and excepted to the third challenge. The challenge was allowed, and afterwards the petitioner challenged one more juror. Held, that no ground for a new trial appeared.</p> <p>At the trial of a petition for the assessment of damages caused by the taking of land, if a question to a witness testifying as an expert as to the value of the land, which was admissible in the discretion of the judge, does not appear to have led to collateral inquiry, the answer to the question, or even the fact that the questian was answered, not appearing in a bill of exceptions alleged by the petitioner, this court cannot assume that he has suffered any harm.</p> <p>It is within the discretion of the judge, at the trial of a petition for the assessment of damages caused by the taking of land, to refuse to allow a witness to be cross-examined as to his opinions or statements covering other lands not before the court and in another municipality.</p>

<p>Town — RepoH of Committee — Vote — Action.</p> <p>Under an article in the warrant for a town meeting, “to see if the town will reimburse the estate of B. for taxes overpaid by said B. between ” certain years named, the town voted “ to refer the subject matter of this article to the present 'Park Committee ’ to consider the same and report to the town at a future meeting.” The committee made a report, setting out the facts relating to the overpayment by B., owing to an error of the assessors, for several years, of taxes upon the “ homestead lot,” and upon land on P. Street and H. Avenue, amounting to a sum named, from which the assessors'made a certain abatement, “still leaving a balance of . . . his due on the P. Street and H. Avenue land, which added to the” sum “claimed to have been overpaid on the homestead lot amounts to . . . the' total amount of the claim of the B. estate against the town, which is the report of your committee.” Under the following article in the warrant for a town meeting, “ to hear the report of the committee to whom was referred the matter of thq claim of the estate of B. against this town, and to act thereon,” the town voted “to accept the report and discharge the committee.” Held, that the action of the town in accepting the report of the committee did not constitute an agreement on its part to pay the amount named therein, nor was it such an acknowledgment of the claim that a promise to pay fairly might be implied.</p>

<p>Tort, against the owners of a building in Boston, for personal injuries occasioned, to the plaintiff by falling into an elevator well. At the trial in the Superior Court, before Hopkins, J., the jury returned a verdict for the defendants; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Embezzlement—Indictment — Statute—“Incorporated Bank” — Savings Bank — Examination of Jurors — Evidence — Exceptions — Specifications — Trial.</p> <p>Under Pub. Sts. c. 203, § 44, an allegation in an indictment under § 41, against an officer of a savings bank for embezzlement of “ a great quantity of money, to wit, the sum of five thousand dollars of the property of the said savings bank," is sufficient.</p> <p>An indictment under Pub. Sts. c. 203, § 41, against the treasurer of a savings bank, for embezzlement of a sum of money, rightly contains an averment that the money was in the possession of the bank; and in an averment that “by virtue of his said office” he received into his possession the money stolen, the words quoted may be rejected as surplusage.</p> <p>The térra “incorporated bank” in Pub. Sts. c. 203, § 41, relating to embezzlement of its funds by an officer or employee, applies to a savings bank.</p> <p>At the trial of an indictment under Pub. Sts. c. 203, § 41, for embezzlement, against the treasurer of a savings bank, who was also the president of a national bank, both banks doing business in the same rooms, in examining jurors, the defendant is not entitled to have them asked whether, at the time of the alleged offence, they were related to any person who was a depositor in either of the banks, or a stockholder in the national bank; whether they were stockholders in any corporation which was a depositor in either bank, or a stockholder in the national bank; and whether their father, mother, brother, sister, uncle, aunt, wife, or child was a depositor in the savings bank.</p> <p>At the trial of an indictment under Pub. Sts. c. 203, § 41, against the treasurer of a savings bank for embezzlement, the records of the bank contained in a book produced by a person who had been appointed receiver of the bank, and found by him in the rooms occupied by the bank, showing its incorporation, and that the defendant, in whose handwriting they were, was duly elected treasurer of the bank, are sufficiently proved and rightly admitted in evidence; the fact that some of them were signed by him as secretary and others as clerk is immaterial; and a witness is rightly permitted to testify that the defendant produced' this book of records at the meetings of the trustees of the bank prior to a certain date.</p> <p>An exception alleged at the trial of an indictment to the admission of evidence under a count, which with all the evidence pertaining to it is taken from the jury, is immaterial.</p> <p>At the trial of an indictment under Pub. Sts. c. 203, § 41, against the treasurer of a savings bank for embezzlement, no exception lies to the admission in evidence of a check signed by him as such treasurer “ payable to order of loan C. E. S.,” and to evidence showing that no money was received on it by C. E. S. of the city in which the bank was located, or by C. E. S. of a neighboring town, who, so far as known, were the only persons of that name in the county, on the ground that it did not appear beyond the possibility of a doubt that some other person of that name might not have received the money.</p> <p>In this case, which was an indictment under Pub. Sts. c. 203, § 41, against the treasurer of a savings bank for embezzlement, the jury might consider that there was a large deficiency in the assets of the bank; that the defendant was the treasurer for many years, and his sworn returns to the commissioners of savings banks were grossly false; that he fled when he heard that the examiner of the national bank, of which he was president, whose business was done in the same rooms as that of the savings bank, and that a commissioner of savings banks were both in the banking rooms to examine the two banks; that he went to a distant State and lived there under an assumed name for several months, until he was discovered and arrested; and that when he went away he left a written statement that the .loss was more than $300,000, in which he admitted that he was guilty of fraud, intimated flight and suicide, and prayed God’s mercy on his soul; and these facts, considered in connection with express testimony in regard to particular transactions, which tended to show that the transactions were irregular, were proper to supply deficiencies in the proof as to these transactions, and to convince the jury that they were fraudulent.</p> <p>Upon a bill of exceptions alleged at the trial of a criminal case, containing ninety-six separate exceptions, an exception having been taken to every material piece of evidence introduced, and a ruling requested under each count and each specification that there was no evidence to warrant a verdict upon it against the defendant, who introduces no evidence and submits the case to the jury without argument, nearly all of the exceptions being general, with no statement of the grounds of the objection, he should be held very strictly to show any error on which he relies, and no inferences will be drawn in his favor.</p> <p>At the trial of an indictment under Pub. Sts. c. 203, § 41, against the treasurer of a savings bank for embezzlement, a witness who has been employed by the receiver upon the books of the bank in ascertaining its condition is properly allowed to testify to the results of his examination, the books being in court for the purpose of verification, if his testimony is doubted.</p> <p>That some of the checks put in evidence at the trial of an indictment under Pub. Sts. c. 203, § 41, against the treasurer of a savings bank for embezzlement, did not correspond exactly to the specifications filed by the government is of no con. sequence, so long as there was enough to establish their identity with the checks intended.</p> <p>It is within the discretion of the judge, at the trial of a criminal case, to admit evidence entirely outside of the specifications filed by the government, if it is pertinent to the indictment and the defendant is given a sufficient opportunity to answer it.</p> <p>The defendant in an indictment under Pub. Sts. c. 203, § 41, for embezzlement, is not entitled to have the jury instructed as to the effect of the evidence introduced under each specification filed by the government, but all the evidence bearing upon each count of the indictment is to be considered on the question whether the defendant is guilty of the charge set forth in the count.</p>

<p>Petition, for a writ of habeas corpus to the superintendent of the State asylum for insane criminals at the State farm in Bridgewater. The petition was brought by Charles Ofria in behalf of Le Donne. Hearing before Lathrop, J., who refused to grant the petitioner’s prayer, and denied him the writ, and, at the request of the petitioner, reported the case for the consideration of the full court. The facts appear in the opinion.</p>

Petition, to the Superior Court, under St. 1896, c. 287, for a jury to assess the damages caused to the petitioner’s estate by the construction and maintenance of a common sewer in front thereof. Trial before Sherman, J., who allowed a bill of exceptions, in substance as follows.

<p>Tort. The declaration contained three counts, the first being for trespass upon the plaintiff’s premises, the second for an assault by “the defendants” upon her, and the third for conversion of one pianoforte, alleged to be her property. Trial in the Superior Court, before Hopkins, J., who allowed a bill of exceptions in substance as follows.</p> <p>It was admitted by the defendants, who did business under the name of Loan Fund Company, that on October 24,1895, the plaintiff and her husband, George H. Bacon, borrowed from the defendants the sum of one hundred dollars, and made and executed to them a chattel mortgage and note in the ordinary form, covering a part of her household goods and the pianoforte mentioned in the declaration, payable in one month, with interest at the rate of five dollars per month, and five dollars for making and securing the loan.</p> <p>The defendant Hooker testified that the defendants had received on the mortgage mentioned twenty-one payments of five dollars each, the first of which payments was made on November 22, 1895, and the last on August 17,1897; that on the day last mentioned, just after the payment had been made, he gave the mortgage and note to one McEvoy and sent three teamsters and a man named Thomas with McEvoy to the plaintiff’s dwelling-house to foreclose the mortgage; that he on the same day instructed McEvoy to deliver to the plaintiff a notice in writing of the intention to foreclose the mortgage and sell the property by auction on August 25 ; that McEvoy took the piano out of the plaintiff’s house; and that the piano was sold, but that he did not sell it on the day fixed for the sale in the notice.</p> <p>John A. Lincoln testified that on August 17, 1897, in consequence of a request made by the plaintiff, he called at her house and found there McEvoy and Thomas and the teamsters mentioned, before the piano was removed from the house; that he knew McEvoy and had seen him in the defendants’ place of business more or less for the last ten or twelve years, but could not tell what kind of work he was doing; and that, while at the plaintiff’s house, and before the piano was removed, he talked with McEvoy ; and in answer to the question, “ What did you say to him ? ” the witness answered, “ I made him a tender.” This answer was excluded; and the plaintiff excepted.</p> <p>The witness testified further that he took six ten-dollar treasury notes out of his pocket and counted them and offered them to McEvoy and he would not accept them; that after that he saw McEvoy take the piano and get on to a team and go away with it; that he saw him serve a paper, that is, the written notice above mentioned ; that McEvoy and the plaintiff had some argument there between themselves, and he pushed her a little out of the way, taking the piano. The plaintiff then asked him, “ State what he said, if anything, before he pushed her.” This question was objected to, and the judge excluded it, ruling ' that he would exclude any evidence offered of an assault committed by any person other than the defendants.</p> <p>The witness further testified that the value of the piano at the time of the taking was $150.</p> <p>The plaintiff testified that she borrowed of the defendants the $100 mentioned, and she had paid $105 ; that she knew McEvoy by sight; that she had seen him in the office of the defendants, but did not notice that he was doing anything in particular while she was there ; that he came to her house on August 17, 1897, and pulled a paper out of his pocket, which was the mortgage, and said he came to foreclose the mortgage, and he took the piano ; that before he took the piano away, she saw Lincoln with $60 in his hand, which was extended towards McEvoy, and Lincoln said that he wanted him to cancel the note and mortgage.</p> <p>George H. Bacon, the husband of the plaintiff, testified for the plaintiff that he signed the mortgage and note; that he had made a greater part of the payments mentioned, and there was paid in all $105; that the piano belonged to the plaintiff; that in consequence of what he had learned on August 17, and of the notice mentioned, he called at the defendants’ place of business on the next day, and saw Hooker ; that he had $60 in his pocket, and he tendered it to Hooker, who refused it, saying that he wanted $100, and that he would take nothing else.</p> <p>It was agreed that under the laws of 1888 and 1892, there would be a balance due on August 17,1897, amounting to $11.47; and that the $60 tendered would cover all expenses of any foreclosure proceedings and the balance mentioned.</p> <p>At the close of the evidence offered by the plaintiff, the judge ruled that she was not entitled to maintain her action; and directed the jury to return a verdict for the defendants. The plaintiff alleged exceptions.</p>

<p>Personal Injuries — Master and Servant — Negligence—Action.</p> <p>An intelligent boy seventeen years old, who is set to work on a machine through which cloth in the process of manufacture passes, whose duty it is to see that the cloth goes smoothly and to smooth it out when the edge is turned over on the way to the machine, and who, having worked on the machine for several weeks, understands the danger of getting his hands drawn into the machine, and knows that if they are drawn in they will get burned, and knows also that the cloth which passes through the machine is made up of different pieces, and that frequently there are tears in it of various sizes and shapes, cannot maintain an action against his employer for injuries caused by having his hand caught in a hole in a seam where two pieces of cloth are stitched together, and drawn into the machine and burned, on the ground that the defendant was negligent in failing to instruct him that there were liable to be such holes in the cloth, he having testified that he had not seen any holes in the cloth, although witnesses called by him said that they were of frequent occurrence.</p>

<p>Contract, upon a lease dated March 20,1894, for three years, of a building in Winthrop used as a hotel. 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 action was to recover the alleged balance due upon a second lease of $654.92. The defendant filed an account in set-off, and the case was sent to an auditor, who reported to the court that there was due the plaintiff $551.69, with interest from the date of the writ. The defendant accepted the report, except as to item. 16 of his account in set-off, which was as follows: “ To three years’ water tax paid by mistake, $182.50.”</p> <p>The report stated:</p> <p>“ As to item 16 of the declaration in set-off, I find that the defendants paid to the town of Winthrop the sum of one hundred eighty-two and 50/100 dollars as the water rates or assessments for the use of the town water upon and in the premises for the years 1895, 1896, and 1897, the defendants supposing that the terms of the lease required them to pay these assessments the same as the prior lease had. The plaintiff knew such rates were being paid by the defendants, but nothing was said by either party about the water rates until after all such payments had been made and the term of the lease had expired. The supply of water so paid for was essential to the use of the premises as a hotel, the only use permitted by the lease.</p> <p>“ Upon these facts, I rule as a matter of law that the defendants cannot recover of the plaintiff the said amounts so paid for water rates, and to this ruling the defendants excepted.”</p> <p>The lease contained no covenant relative to the water rates, and nothing was said therein about water rates.</p>

<p>Indictment, against Joseph St. John, Albert St. Germaine, and Eugene Bernatchez, charging the first named defendant, on May 81,1896, at Springfield, with unlawfully using a certain instrument in and upon the body of a woman named, with intent to procure a miscarriage, and thereby causing her death; and charging the other defendants with being accessories before the fact.</p> <p>In the Superior Court, the defendants St. Germaine and Bernatchez each filed a plea in bar of the indictment, alleging that he was promised and pledged by the prosecuting authority or authorities immunity and protection from the crime charged in the indictment against him, if he would make full disclosure and confession of what he knew with reference to an abortion alleged to have been performed by St. John, as principal, and against whom a complaint had been made and warrant issued from the police court of Springfield for such offence, and if he would hold himself in readiness to testify and would testify whenever requested by such authority or authorities, at any trial or hearing, and before any tribunal, to all the facts and circumstances known by him with reference to the crime charged against St. John; and that he agreed so to do, and did make such full disclosure and confession, and had, since such promise of immunity and protection, always been willing and ready to testify, whenever requested by such authority or authorities.</p> <p>The plea of St. Germaine alleged further that he was used as a witness for the government in the police court at the preliminary hearing of the complaint against St. John.</p> <p>Trial before War dwell, J., and, he having resigned, a bill of exceptions tendered by both defendants was allowed by Mason, 0. J., that of the defendant St. Germaine being in substance as follows.</p> <p>St. Germaine, in support of his plea in bar, offered to show that he was promised and pledged by the city marshal of Springfield, who was at the time at the head of the police department of the city, and by one Boyle, the chief detective of the police department, and who were in the preliminary proceedings the prosecuting officers, and by whom a warrant was obtained for the arrest of St. Germaine, that if he would make full disclosure and confession of what he knew with reference to the abortion alleged to have been performed by St. John, and against whom a complaint had been made and a warrant issued from the police court of Springfield for such offence, as principal, and if St. Germaine would hold himself in readiness to testify and would testify at the preliminary hearing in the police court upon the complaint and warrant against St. John, and if he would hold himself in readiness to testify at any other trial or hearing with reference to the charge against St. John, he should have immunity and protection from the crime charged against him in the indictment; that there was a preliminary hearing in the police court upon the complaint against St. John, at which the city marshal and Boyle were the prosecuting officers ; that the District Attorney did not appear and was not represented at such hearing other than by the city marshal and by Boyle; that by reason of such promise and pledge of immunity, St. Germaine was induced to and did make full disclosure and confession of what he knew with reference to the abortion and of the connection of St. John, Bernatchez, and himself therewith ; that by reason of such promise and pledge of immunity, St. Germaine allowed himself to be used by the Commonwealth as a witness at the preliminary hearing on the complaint against St. John, and gave full evidence of all he knew with reference to the offence charged in the complaint, including the connection of himself and Bernatchez therewith; that because of the testimony so given by him, and upon no other testimony, the police court found that there was probable cause to believe St. John guilty, and thereupon St. John was duly' bound over to the grand jury; that later the grand jury returned this indictment; that St. Germaine was, and since the promise of immunity and protection always has been, willing and ready to make full disclosure and confession whenever called upon by the government in any future hearing or trial upon the matter alleged in the indictment; that upon the day when the grand jury assembled, Boyle asked St. Germaine to be present at the court-house ready to testify whenever called upon of what he knew with reference to the offence charged against St. John, and thereupon again promised him full immunity and protection from the crime charged in the indictment; that at Boyle’s request St. Germaine from day to day reported at the court-house to Boyle while the grand jury were in session, and by reason of the promises of immunity and protection St. Germaine held himself in readiness and was willing to make full disclosure and confession and to repeat in substance the evidence previously given by him at the preliminary hearing; and that relying upon the representations of the city marshal and Boyle, St. Germaine pleaded guilty to the indictment, and was sentenced thereon. It was not contended on behalf of St. Germaine that the city marshal or Boyle made any of the. promises named or held out any of the inducements referred to under the authority of the District Attorney.</p> <p>The exceptions tendered by the defendant Bernatchez did not differ materially from those tendered by St. Germaine, except that the offer of proof was limited to promises made by Boyle, and did not allege attendance as a witness before the police court.</p> <p>The judge ruled that the evidence offered was not competent, and excluded the same; and each of the defendants alleged exceptions.</p>

<p>Personal Injuries — Parent and Child =— Negligence — Due Care — Law and Fact.</p> <p>Whether a mother was negligent in allowing a child two years and ten months old to go out with a sister, who was five years and four months old, to play in a vacant lot at the side of her house, the lot being entirely unfenced and unguarded and fronting on a public street, is a question for the jury in an action against an ice company for injuries caused by a cake of ice falling from the rear end of its wagon in the street upon the younger child; and even if the mother was negligent, it is for the jury to say whether the child was- in the exercise of due care, and also, the position of the wagon at the time of the accident and consequently of the child and what she was doing being in dispute, to say what the facts were.</p>

<p>Agreement not Unconscionable and only to become Void at the Option of the Vendor — Fraud.</p> <p>By the terms of a written agreement, A. agreed to sell and B. to purchase land for 8750, on certain conditions, and A. agreed to deliver a warranty deed when B. should have paid the sum of fifty dollars, and should have made twenty-eight monthly payments of twenty-five dollars each. B. further agreed that, if he should change his place of residence without notice, and thereby or for any other cause default in payment for four weeks, the agreement should become null and void, and all moneys paid by him should be forfeited to the use of A. as liquidated damages. B. paid the fifty dollars and the first two instalments, and an action was brought by A. to recover $150, being six instalments, due and unpaid. Held, that the contract was not unconscionable, there being no suggestion of fraud, and that the provision as to the agreement becoming void meant that it was to become void at the option of the vendor, and that the vendee by making default could not avoid payment of the price.</p>

<p>Specific Performance of Contract to convey Land—Statute of Frauds—Statute of Limitations — Laches.</p> <p>If A. and B. make an oral agreement to exchange land, and A. performs his part of the agreement by conveying his land to B., who immediately puts A. into possession of his land, and A. afterwards exercises acts of ownership, erecting buildings on the land and making other improvements in excess of the value of the land, with the knowledge, consent, and acquiescence, until his death twenty-four years after the agreement, of B., who during that period neither claimed ownership of nor exercised any control over the property, and five years before his death said that the only reason why he had not given A. a deed was his own neglect, and that he was going to do it at once, a bill in equity for specific performance of the agreement, brought three years after B.’s death by A. against B.’s widow and children, who two years previously had brought a writ of entry against A., the children having also received and recorded a quitclaim deed of the property from a grantee of B. made for the purpose of confirming a lost unrecorded deed, is not open to the defences of the statute of frauds, the statute of limitations, or loches, but A. is entitled to a decree.</p>

<p>Contract, by the widow of Frank R. Hadley, to recover $590, alleged to be due under a certificate of membership issued by the defendant to Hadley. The administrators of Hadley’s estate appeared as claimants of the fund. The case was submitted to ■ the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>Personal Injuries — Street Railway — Statute — Evidence — Notice of Injury — Instructions — Exceptions.</p> <p>The provision of Pub. Sts. c. 113, § 32, that every street railway company shall keep in repair, to the satisfaction of certain officials, including road commissioners of towns, the surface material of the portions of streets and roads occupied by its tracks, does not mean that the approval of the road commissioner of a town is a condition precedent to the running of the railway, but merely that, if he directs repairs, they must be made.</p> <p>In an action against a street railway corporation for personal injuries alleged to have been caused by the defendant’s failure to keep in repair the surface material of the portions of a street occupied by its tracks, and by negligence in the construction of its tracks, an assistant road commissioner of the town in which .the accident happened, who had charge of the roads in that part of the town and saw the track as it was laid there by the defendant, may testify that it was done to his satisfaction.</p> <p>In an action against a street railway corporation for personal injuries alleged to have been caused by the defendant's failure to keep in repair the surface material of the portions of a street occupied by its tracks, and by negligence in the construction of its tracks, the jury are properly instructed to consider whether the accident was caused by a defective construction or by a want of repair, and that, if it was caused by a want of repair, the provision of Pub. Sts. c. 52, § 19, and acts in amendment thereof, as to the giving of notice of the time, place, and cause of the injury, applied.</p> <p>If a party to an action desires more specific rulings than those contained in the charge to the jury, he should ask for them, and is not entitled to rely upon a general "exception, taken at the end of the charge, to ail the rulings.</p>

Petition for a writ of certiorari to quash the proceedings of the selectmen of Brookline in levying a betterment assessment on the estates of the respective petitioners for the expense incurred in laying out an improvement of Smelt Brook, under St. 1887, c. 99. Hearing before Knowlton, J., who reported the case for the consideration of the full court. The facts appear in the opinion.