Volume 176 — Massachusetts Reports

<p>Two ACTIONS OE CONTRACT, upon guaranties, one to William J. Botch and the other to A. H. Seabury, in similar form, of the same date, and signed by William A. French, E. A. Potter, W. Herbert Wilson, and H. 0. French. Writs dated June 29,1896. The guaranty to Botch is given in the opinion.</p> <p>At the trial in the Superior Court before Fessenden, J., the defendant requested the judge to direct a verdict for him in each case, contending that there was no evidence that the guaranties were given for the consideration claimed by the plaintiffs; that they did not cover more than one dividend which it was agreed had been paid, and that they did not run to the executors of Rotch who died in 1893, and of Seabury who died in 1887. The judge ruled otherwise and submitted to the jury the following question: “ Was the consideration, if any, of the guaranty, an agreement on the part of the plaintiffs’ testator to take and pay for one hundred shares in the capital stock of the French, Potter, & Wilson corporation?” The answer was “ Yes.” The judge directed the jury to return verdicts for the plaintiffs for the amounts due upon their respective guaranties; and, at the request of the parties, reported the cases for the determination of this court. If the rulings were wrong, the verdicts were to be set aside and new trials granted ; otherwise, judgment was to be entered on the verdicts. The facts appear in the opinion.</p>

<p> Sale of Cigars on the Lord’s Day by Common Victualler. </p> <p>If one of the purposes for which a common victualler keeps open his restaurant on the Lord’s day is the sale of cigars, the keeping of that place open for that purpose is unlawful under St. 1895, c. 434, § 2.</p>

Petition in equity, by the administrator de-bonis non with the will annexed of Susan B. Lyman, asking instructions as to the construction thereof. Hearing before Lathrop, J., who reserved the ease for the consideration of the full court.

<p>Boston Subway — Construction of Tunnel to East Boston — Constitutional Law.</p> <p>Section 17 of St. 1897, c. 500, authorizing the construction of a tunnel from Boston to East Boston and the execution of a lease of the tunnel, when completed, to the Boston Elevated Railway Company, for twenty-five years from the date of that act, at the rental specified in the same section, and § 18 of the same statute, authorizing the city treasurer to issue bonds of the city to pay the cost of construction of the incline, etc., and other bonds to a certain amount, the proceeds thereof and of $7,000,000 in bonds authorized by St. 1894, c. 548, to be applied to the payment of the expenses of constructing, etc. the subways authorized by said St. 1894, c. 548, § 25, and of the tunnels, etc. provided for in the preceding section, are not unconstitutional, as calling for an unwarranted exercise of the power of taxation, as taking the property of the city without reasonable compensation or due process of law when a lease, as provided by statute, is executed to the Boston Elevated Railway Company, or as impairing the obligation of a contract already made by the Boston Transit Commissioners with the West End Street Railway.</p>

<p>Eminent Domain — Damages— Talcing without Injury to Petitioner.</p> <p>A petitioner to recover damages for the taking by the respondent city under the St. of 1888, c. 309, of his dam, water rights, and other real estate, having conveyed his dam to the respondent, which the respondent may at any time take down, has lost the means of flowing the lands above, and the taking has done him no injury.</p>

<p>Indictment — Abortion — Evidence — Argument of District Attorney to Jury.</p> <p>At the trial of an indictment for an unlawful attempt to procure the miscarriage of a woman and for causing her death, certain cards found in the defendant's trunk in the room occupied by him tending to show that he held himself out as a person whose business it is to procure abortions, although not stating the fact in precise terms, are admissible in evidence against him; and the District Attorney is properly allowed to argue to the jury what their meaning is.</p>

<p>Complaint, to the Municipal Court of the city of Boston under St. 1898, c. 577. Trial in the Superior Court, on appeal, before Hardy, J., who overruled certain motions to quash made before the impanelling of the jury; and the defendants excepted.</p> <p>The jury returned a verdict of guilty against each defendant ; and they alleged exceptions. They then filed a motion in arrest of judgment, which was overruled, and they excepted. The nature of all the exceptions appears in the opinion.</p>

<p>Petition, for a writ of certiorari, to quash the proceedings of the respondents in exceeding their authority in locating Belmont Street and in laying out the same by taking land lying within the limits of the town of Watertown, and by ordering the town of Watertown to pay for the land so taken and to construct a portion of the street, the petition alleging that the proceedings and the relocating, widening, and laying out were wholly erroneous. Hearing before Knowlton, J., who reserved the case for the consideration of the full court. If the proceedings showed such error of law as to entitle the petitioner to the writ, it was to issue; otherwise the petition was to be dismissed.</p>

<p>Resulting Trust — Finding by Justice after Verdict on Issues of Fact submitted to Jury.</p> <p>A resulting trust will not be declared in favor of a person who causes land to be conveyed to a woman, not his wife or related to him, in consideration of a cash payment by him of a part of the purchase price and of a note and mortgage given by her to the grantor to secure the balance, although he intends, and she agrees, but not in writing, that the title taken by her in her own name shall be held by her for his benefit.</p> <p>Although a verdict rendered upon issues of fact submitted to a jury in a suit in equity, if not set aside, is regarded as settling the facts so put in issue and is conclusive upon those issues, yet a justice who afterwards hears the case may, upon the evidence before him, find other material facts not inconsistent with the findings of the jury.</p>

<p>Bill nr equity, praying for an account. Trial in the Superior Court, before Sheldon, J., who reported the case for the determination of this court, in substance as follows.</p> <p>Between the years 1882 and 1888 the firm of Smith and Townsend, composed of Silvanus Smith and James L. Townsend, were ship’s husbands and agents of the barque Nehemiah Gibson. Silvanus Smith was also one of the co-owners of the barque. The owners of the barque during that period were twenty-three in number, among them being Benjamin F. Butler, Joseph L. and R. H. McLauthlin, copartners under the firm name of J. L. and R. H. McLauthlin, and one Morton Bradford.</p> <p>In the year 1888 Smith and Townsend ceased to become the ship’s husbands, and on January 1,1888, there was, according to their account, due to them from the owners the sum of $8,729.18. The account not being settled on April 6,1888, they began three separate actions at law, the first against Benjamin F. Butler, the second against Joseph L. and R. H. McLauthlin, copartners, and the third against Morton Bradford, in each action setting up their entire account against the owners, and seeking to recover from each of the parties a judgment for the full amount of the sum, or such part thereof as the defendant in the cause should be found to be indebted to them. An agreement was entered into in the cases against the McLauthlins and Bradford that these cases should abide the result of the judgment in the case of Smith v. Butler. That case was tried in the Superior Court, and judgment entered against the defendant Butler for his part of the indebtedness in the proportion of his ownership in the barque. The case was taken to the full court, and in Smith v. Butler, 164 Mass. 37, it was held that the plaintiffs’ remedy was not by action at law against each of the joint owners separately, but by bill in equity joining all of the owners. Thereupon the plaintiffs filed a motion in each of the three actions in the Superior Court to amend by changing the action into a bill in equity, in which all of the co-owners were named as parties defendant, and stating in the motion that a new action “ might be barred by the statute of limitations.” The motion was allowed in each action, and one bill in equity was filed in amendment of the three actions. Subpoenas were issued summoning in the additional parties defendant; service was duly made on all of the parties defendant, except such as were out of the State and except one owner, Edward Powers, who had deceased, and of whose estate there was no administrator. The additional parties defendant summoned in were William Waters, Jr., Alfred Cox, executor of the estate of Mark Googins, Susan Wadsworth, administratrix of the estate of Peleg Wadsworth, and Josephus Dawes. The motion in each action was allowed, and the case was referred to a master, to whose findings certain exceptions were taken. “ I find that the ship’s husbands provided from time to time, under an agreement with the owners, funds for fitting out and disbursing said vessel; that they insured freights to cover all sums thus advanced by them. ... I find that it was the custom of ship’s husbands in the port of Boston to insure freights to cover advances made by them, and to charge to the owners the premiums of such insurance, and that as ship’s husbands they had a right in accordance with said custom to charge to the defendants the premiums for such insurance paid by them.” The exceptions to the master’s report stated, “it not appearing that plaintiffs were charging insuranee in said manner.”</p> <p>“ There was no evidence that the defendant McLauthlin knew that the plaintiffs were charging insurance, and charging and crediting interest as alleged. The defendant McLauthlin testified not only that he did not know such custom, but that there was no such custom; but I find that such was the custom, and that the defendant McLauthlin had owned in a large number of vessels sailing from the port of Boston. I find that it was the custom of the port of Boston for ship’s husbands to make advances for disbursing vessels managed by them and credit interest on all sums received by them from the date of the receipt, and debit interest on all sums paid out by them from date of payment. I find that the charges of interest made by the plaintiff were in accordance with this custom, and that there was an implied agreement between the plaintiffs and the defendants that the plaintiffs should so charge and allow interest. I find that annual rests were taken in the plaintiffs’ accounts on the thirty-first day of December of each year, and the balance carried forward as an item of next year’s account, but that in each year the amount received by the plaintiffs and credited and duly applied in their account with the owners of said vessel exceeded the amount of interest charges for that year. ... I find as a matter of law that the cause of action set forth in the plaintiffs’ bill of complaint is not barred by the statute of limitations.”</p> <p>One of the exceptions to the master’s report was that the claim was barred by the statute of limitations.</p> <p>The master found for the plaintiffs against each of .the defendants, except one Weston, for his proportional part of the indebtedness of the barque. The defendants’ exceptions to the master’s report were overruled; the report was confirmed by the Superior Court and a decree entered in accordance with the report. The defendants Butler, the McLauthlins, Bradford, Waters, Jr., Dawes, Wadsworth, and Cox appealed from the decree; and the case was by the agreement of the parties reported for the determination of this court by Sheldon, J. If the decree was correct it was to be affirmed; otherwise such order was to be made as justice and equity might require.</p>

<p>Set-off— Contribution — Equity — Practice — Judgment — Decree.</p> <p>Part owners of a vessel brought an action at law against a ship’s husband to recover their share of a dividend. The defendant was the survivor of two partners who had acted as ship’s husbands of a barque, whicii had been on voyages resulting in a loss, six sixty-fourths of which was due from the plaintiffs'as owners of that undivided share in the vessel. Held, that the defendant’s claim against the plaintiffs could not be availed of in set-off.</p> <p>If, when an action is brought to collect a debt due from the defendant, there is pending in the same court a bill in equity brought by the defendant against the plaintiff to enforce contribution, the defendant should move to have the action at law continued until the bill in equity reaches a decree, and then move to have the judgment and decree set off one against the other and execution issued or a final decree entered for the balance due him or his adversary, as the case may be.</p>

<p>Writ of Error — Joinder of Issues of Law and Fact — Hearing by Single Justice on Issues of Fad — Report — Jurisdiction acquired over Nonresident by Attachment of Debt due him from Resident Debtor— Submission to Jurisdiction by Voluntary Appearance — Amendments— Consent of Attorney not of Record — Action for Forfeiture — Certificate of Witness — Entry of Judgment.</p> <p>Issues of law and issues of fact maybe joined in the pleadings upon a writ of error. A single justice of this court may hear the evidence relative to issues of fact upon a writ of error, and, if he chooses, may report the case to the full court.</p> <p>An attachment by the trustee process of a debt due to a non-resident defendant from a resident debtor gives jurisdiction to render a judgment which will be valid everywhere as against the property attached, although the defendant has not been served with process.</p> <p>The voluntary general appearance in a personal action of a non-resident defendant who has not been served with process gives jurisdiction to render a personal judgment against him.</p> <p>There is no necessary inconsistency between different counts of a declaration in an action by the assignee of an insolvent debtor, the first of which is upon an account annexed for “goods delivered” to the defendant by the insolvent debtor, the second of which alleges that the goods were conveyed to the defendant by the insolvent debtor to prevent them from coming to his assignee in insolvency, and the third of which alleges that the goods were so conveyed with a view to give the defendant a preference, and there is no such irregularity or imperfection as to affect the validity of a judgment for the plaintiff.</p> <p>If amendments to pleadings have been regularly allowed by the court with the consent of the duly authorized attorneys of the adverse parties, the fact that an attorney who consented to one of the amendments, although regularly employed, did not enter his appearance of record until later is immaterial.</p> <p>An action by the assignee of an insolvent debtor to recover the value of goods alleged to have been conveyed by the debtor to the defendant for the purpose of giving him a preference and of preventing them from coming to the assignee is not an action for the recovery of a penalty, but for the recovery of the value of the goods conveyed in fraud of the laws relative to insolvency, and may be commenced by the trustee process.</p> <p>The allowance of fees to a witness in the taxation of costs upon a certificate signed in his name by his duly authorized agent and not by his own hand, is not erroneous, and, if it were, it is at least doubtful whether the mistake could be taken advantage of by a writ of error.</p> <p>The entry of judgment charging trustees in the Superior Court, made by the clerk on the first Monday of the month without a special order of the court, is in accordance with the statutes and the 27th rule of the court.</p>

Replevin of certain personal property, including fixtures. Trial in the Superior Court, before Bishop, J., who reported the case for the determination of this court, in substance as follows.

<p>Trust — Principal — Income — Fund not passing to Assignees in Insolvency.</p> <p>A testator gave the residue of his estate to trustees “ to collect the income thereof, and, after deducting the necessary expenses, to pay over the balance thereof as follows: To my wife, L., the sum of five thousand dollars a year during her natural life ... to pay over the residue and remainder in equal shares to my said children S., J., B., F., and W. In the event of the death of my said wife, L., I direct that the whole of the income shall be paid over to my said children [named] share and share alike. I direct that the lawful issue of a deceased child, or grandchild, shall take the parent’s share by right of representation, but to continue in trust until they shall have arrived to the full age of twenty-one years, the income during minority to be applied for their support and education. In the event of the death of the issue of a deceased child before arriving to the full age of twenty-one years, I give . . . the principal and any accumulated interest thereon to my surviving children, share and share alike.” There was also a provision that the daughters’ share in the income should not be subject to the control of their husbands or be liable for their debts. The wife died in 1888 and the son F. in August, 1898, having just before been adjudged an insolvent debtor, and leaving four children. Held, that the assignees in insolvency of F. were not entitled to any part of the fund, but that a part of the principal of the fund, proportionate to the share of the income received by F. during life, should be divided into four parts, one to be transferred to the oldest child, who had reached his majority, and the other three to be set aside, one for each of the three children, and to be severally held in trust during the minority of each child, and to be transferred to him or her upon coming of age.</p>

<p>Recovery of Money paid for Licenses — Agency.</p> <p>A person who receives a license for the sale of intoxicating liquors must be assumed to have taken it upon the conditions of Pub. Sts. c. 100, and the acts in amendment thereof, so far as respects his rights upon a revocation of the license; and there is no provision in any such statute authorizing a recovery in a case where the license not void in its inception is revoked on the ground that notices of the application were not posted on the premises described in the application as required by the sixth section of the statute.</p> <p>Although the question whether licenses shall be granted in any city or town is determined by the vote of the inhabitants thereof, still the licensing board, whether a special commission or the mayor and aldermen or the selectmen, do not act as the agents of the city or town, but as public officers specially designated in that behalf, and, in the absence of any statute to' the contrary, the city or town is not answerable for their acts as such officers.</p>

<p>Personal Injuries — Negligence — Action against Landlord by Visitor of Tenant— Condition of Way.</p> <p>An action cannot be maintained against a landlord for personal injuries occasioned to a visitor of one of the tenants by falling into an opening or cellar way while passing along a walk separating the two rows of tenements, if the walk was in good repair and in the same condition in which it was when the tenant hired his tenement, and the danger arising from the proximity of the opening was not concealed but apparent. The plaintiff being the guest of the tenant and using the walk under his authority had no greater claim to protection than he had.</p>

<p>Park Commissioners — Action — Damages — Surface Water — Discharge of Contents of Drain — Statute.</p> <p>The remedy for damages to property for changes in the flow of surface water caused by certain acts of the park commissioners of the city of Boston and o£ the city itself, and also for discharging the contents of an old cellar drain from a building within the park limits, is under St. 1875, c. 185, and not by an action of tort.</p>

<p>Two actions of contract, by the collector of taxes of the city of Cambridge, to recover the taxes assessed upon the personal property of the defendants’ testator, under the provisions of Pub. Sts. c. 11, § 20, cl. 7. Trial in the Superior Court, without a jury, before Maynard, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The defendants’ testator, William A. Richardson, died in Washington, D. C., on October 19, 1896, leaving a will in which he described himself as “ a citizen and inhabitant of Cambridge in the county of Middlesex and Commonwealth of Massachusetts.” The defendants applied to the Probate Court for the county of Middlesex for probate of the will by a petition which described the deceased as “ William A. Richardson, who last dwelt in Cambridge,” and the decree admitting the will to probate described the testator as “ late of Cambridge.” Evidence was offered and admitted, subject to the exception of the plaintiff, that the deceased was born, educated, and admitted to the bar in this Commonwealth; that he resided for several years in Lowell, during which time he held offices under the city and the Commonwealth; that he was appointed judge of probate and insolvency for the county of Middlesex, and then removed his residence to Cambridge, where he acquired a domicil and lived in a house which he owned. In 1872 he was appointed assistant secretary of the treasury of the United States, and resigned his office of judge of probate and insolvency. In 1873 he was appointed secretary of the treasury. While holding.the two offices last named he retained his domicil and residence in Cambridge. In 1874 he was appointed a judge of the Court of Claims, and held that office until 1885, when he was appointed chief justice of the same court, and continued to hold that office until his death. In 1875 the deceased sold his house in Cambridge, and thereafter had no property of any kind in that city, performed no acts of citizenship therein, never remained there over night, and visited it only three or four times when he attended the reunion of his class on Commencement Day at Harvard University, and when he deposited his will in the registry of probate. In 1885 he erected a house in Washington, where he lived with his family until his death. He also purchased a burial lot there, in which the bodies of members of his family were buried. He told the register of probate for the county of Middlesex, in June, 1892, that he had never given up his residence in Cambridge, and did not consider himself a resident of Washington, and he made some other declarations tending to show that his domicil was in Washington. The defendants, after the assessment of the taxes, gave notice in writing to the assessors of Cambridge that pursuant to an order of the Probate Court they had paid over the estate of the testator to trustees appointed under the will by the Supreme Court of the District of Columbia, and that they had no property whatsoever in their possession as executors, nor had any part been paid or distributed to any persons who were inhabitants of Massachusetts.</p> <p>The plaintiff offered in rebuttal of the foregoing evidence various conveyances of land by the deceased between 1885 and 1896, in which he described himself as “ of Cambridge, Massachusetts, Chief Justice of the Court of Claims at Washington, D. C.,” and a receipt given to him upon the deposit of his will in the registry of probate in which he was described as of Cambridge.</p> <p>At the close of the evidence the plaintiff requested the judge to rule, 1. That the plaintiff is entitled to recover; 2. That the domicil of the testator at the time of his death was in Cambridge; 3. That the defendants are estopped to deny that the residence of the deceased was not in Cambridge.</p> <p>The judge declined so to rule, and the plaintiff excepted. The judge found that “ for many years prior to and up to the time of his death he (the testator) had the intention and purpose of not returning to Cambridge to live, but of always remaining, living, and having his home in Washington,” ruled that the testator was not an inhabitant of Cambridge at the time of his death, and found for the defendants.</p> <p>If the evidence was admissible, and the finding and ruling were correct, judgment was to be entered on the finding.</p>

<p>Lien on Buildings and Land — Inaccuracy of Description in Statement and Petition — Amendment of Petition — Evidence of Intention.</p> <p>The grantee of two adjoining lots of land, who, after the purchase of the second lot, builds a permanent fence westerly of the division line between them, extends a portion of a building on the first lot upon the second lot east of the fence, concretes the space between that building and the fence, and subsequently erects a building on the second lot west of the fence, may testify at the trial of a petition to enforce a lien against the second lot which describes the lot as it was described in the deed to him, that it was his intention by the erection of the fence to establish a new permanent division line between the lots.</p> <p>A petition to enforce a lien on buildings and land should be dismissed if the land is described therein in the language of the deed conveying it to the respondent and not according to different and 'permanent bounds established by the respondent after the conveyance; but the Superior Court may allow the petition to be so amended as to describe the land correctly and the lien to be thereupon established.</p> <p>If an inaccuracy in the description of land in a petition to enforce a lien against buildings and land is amended, a similar inaccuracy in the statement filed in the registry of deeds, which cannot be amended, will be considered as within the provisions of Pub. Sts. c. 191, § 8, and not fatal.</p>

Contract, to recover $300, alleged to be due the plaintiff, an attorney at law, for professional services.

<p>Validity of Divorce obtained in another State — Foreign Laws — Estoppel.</p> <p>The statute of South Dakota requiring a libellant to reside in the Territory for ninety days before beginning proceedings for divorce requires domicil and not merely bodily presence. Qurnre, what would be the effect in other States of a decree under a statute substituting bodily presence for domicil.</p> <p>A South Dakota decree of divorce may be held void under Pub. Sts. c. 146, § 41, in a collateral proceeding in this State, upon a finding here that the parties were not domiciled in South Dakota, although the court granting the divorce found the other way and the libellee had appeared. The libellee in the divorce proceedings had withdrawn and the finding was on ex parte evidence.</p> <p>A libellee in divorce who withdraws her appearance for money is not estopped subsequently to deny the validity of the divorce as against a second wife in collateral proceedings.</p>

<p>Assessment of Land Damages — Evidence — Plan.</p> <p>■At the trial of a petition for the assessment of damages to land from a change of grade of an adjacent public way, made under an order passed by the board of aldermen of the city of Boston in 1884, the petitioner was properly allowed to introduce in evidence the St. 1894, c. 439, by which the respondent was directed to lay out certain ways in a territory including the petitioner’s land in accordance with a certain plan prepared in 1894, and also the plan referred to in the statute, for the purpose of aiding the jury in understanding the evidence introduced when they viewed the land, and of showing the changes made after the date of the order, and of presenting a desirable scheme for the use and improvement of the petitioner’s land.</p> <p>At the trial of a petition for the assessment of damages to land from a change of grade of an adjacent public way, made under an order passed by the board of aldermen of the city of Boston in 1884, the judge properly excluded evidence offered by the respondent that the petitioner, in accordance with an order of the board of health of Boston, acting under St. 1893, c. 342, had filled the land to a grade much below the grade to which he would have been obliged to fill in order to use his land had not the grade of the way been raised.</p> <p>At the trial of a petition for the assessment of damages to land of the petitioner from a change of grade of an adjacent public way, made under an order passed by the board of aldermen of the city of Boston in 1884, the judge properly refused to rule as requested by the respondent, that if any ways in the vicinity of the petitioner’s land were laid out by the respondent under St. 1894, c. 439, the value of the land taken therefor, and any damages caused to the remaining land of the petitioner by the laying out of such ways at the grades at which they were laid out, could then be recovered by the owner of the land.</p>

Conteact, to recover a ■ commission for services as broker. At the trial in the Superior Court, before Ailcen, J., the jury returned a verdict for the plaintiff ,• and the defendant alleged exceptions, which appear in the opinion.

<p>Eminent Domain — Evidence as to Value of Property taken — Set-off of Value of Petitioner's Occupation after Taking — Damages of Landlord and Tenant — Cancellation of Lease — Interest.</p> <p>Upon the trial of a petition for the assessment of damages for the taking for a pub-lie purpose of a leasehold estate in property used for greenhouses, evidence of the value of the plants, flowers, and potted soil of the petitioner on the premises, and of the amount of business done by him, is admissible only as bearing upon tlie question of the capacity of the real estate for use, the view of the premises taken by the jury not enabling them to see the property as it was at the time of taking, as the greenhouses had been taken down and a part of the land had been filled up.</p> <p>On a petition for the assessment of damages for the taking of property for a public purpose, the respondent cannot set off against the petitioner’s claim for damages the value of the petitioner’s occupation of the property for a time after the taking.</p> <p>If, in the case of the taking of an estate for a public purpose, the landlord is only paid his damages as reversioner, the lessee is entitled to receive compensation" for the injury to his interest; and the cancellation of the lease is tot to be considered in estimating his damages; and under the 'statute, which applies to the case, interest does not begin to run until the land is entered upon for the purpose of construction.</p>

Complaint, under § 2 of St. 1895, c. 434, relating to the observance of the Lord’s day. At the trial in the Superior Court, before Sheldon, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.

<p>Tort, for personal injuries occasioned to the plaintiff by falling over a fender projecting from the rear of an electric car from which she had just alighted. At the trial in the Superior Court, before Richardson, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Limited Partnership — Liability as General Partners.</p> <p>If, in the case of a limited partnership, the certificate of renewal is made upon the theory that the continuation of the interest of the special partner in the assets of the expiring firm is a contribution to the capital of the new firm equal in amount to that originally contributed, and it appears that the capital has been substantially impaired by losses in business and no fresh capital is then contributed, the St. of 1887, c. 248, is not complied with, and all the members of the new firm are subject to the liabilities of general partners.</p>

Tort, begun by trustee process. The declaration alleged that the plaintiff was the owner of certain real estate in Boston; that on October 15, 1897, he executed and delivered to one Israel JSTesson a mortgage of the real estate to secure the payment of $3,000, of which $500 was to be paid on demand, and $100 every three months thereafter until the full amount of principal should be paid, together with interest; that on April 8, 1898, Nesson assigned the mortgage to the…

<p>Eminent Domain — Taking of Leasehold Estate — Lease to terminate at Election of Lessors or Successors— Covenant for Quiet Enjoyment.</p> <p>On a petition to recover damages for the taking of a leasehold estate by the Boston Terminal Company, it appeared that on January 5,1897, the respondent, being already the owner by purchase of the reversion of the land in question, filed a location under the authority of St. 1896, c. 516, purporting to take in fee (by the right of eminent domain) a tract of land including the premises, and that three days later, on January 8, it served a notice on the petitioner that, whereas the lease was terminable by the lessor upon such a taking, it elected to terminate it. The lease provided that “ in case the premises, or any part thereof, shall be taken for any street or other public use, or by the action of the city or other authorities, . . . then this lease and the term demised shall terminate at the election of the lessors or those having their estate in the premises.” Held, that the meaning of the lease was that the landlord could end the right of the tenant to share in the damages; that the taking was within the terms of the proviso; that it was not a breach of the covenant for quiet enjoyment; and that the fact that it was done through the landlord made no difference.</p>

<p>Assessment of Damages — Application for Jury— County Commissioners — Statute — Motion to dismiss.</p> <p>One whose water rights are taken under St. 1897, o. 338, incorporating the Groton Water Company, cannot apply directly to the Superior Court for a jury without first making application to the county commissioners for an assessment of damages.</p>

<p>Contract, upon a policy of insurance issued by the defendant against the liability of the plaintiff, for “ accidental bodily injuries under circumstances which shall impose upon the insured a common law or statutory liability therefor.” At the trial in the Superior Court, before Lilley, J., the jury returned a verdict for the plaintiff, and the defendant alleged exceptions, which, Lilley, J., having resigned, were allowed by Mason, C. J., under St. 1894, c. 412. The facts appear in the opinion.</p>

<p>Trustee Process — Costs.</p> <p>The provisions of Pub. Sts. c. 183, § 86, do not give a discretion as to the right of the trustee to receive costs.</p>

Tort, under St. 1887, c. 270, for damages for the death of the plaintiff’s husband, caused by the alleged negligence of the defendant. Trial in the Superior Court, before Gaskill, J., who allowed a bill of exceptions, in substance as follows.

Complaint, for using counterfeit trade-marks on cigars. Trial in the Superior Court, before Bond, J., who refused to direct a verdict for the defendants, and to rule that St. 1893, c. 443, was unconstitutional. The jury returned a verdict of guilty; and the defendants alleged exceptions, which appear in the opinion.

Complaint to the police court of Chelsea, alleging that the defendant “ did have in his possession, with intent to sell, a certain quantity, to wit: one pound of a certain product commonly called oleomargarine, made partly out of oleaginous substance not produced from unadulterated milk or cream from the same, and that said product, in his possession, as aforesaid, was then and there, in imitation of yellow butter, produced from pure unadulterated milk or cream of the same.”…

<p>Personal Injuries — Evidence — Expert — Negligence — Assumption of Risk.</p> <p>If the difficulty with a question put to an expert is that the ability of the witness and his own opinion of it are immaterial to the questions upon trial, the question is rightly excluded.</p> <p>An employee, having accepted the responsibility of arranging and moving a staging from which he falls and is injured, cannot be heard to say that it was negligence in the defendant to clothe him with the responsibility.</p>

Tort, for an eviction or an unlawful exclusion of the plaintiff from her rooms in the Hotel Huntington in Boston. At the trial in the Superior Court, before Maynard, J., the jury-returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.*

<p>Right of Action not accruing until after Two Years from giving of Administration Bond — Statute.</p> <p>A promissory note secured by mortgage upon real and personal estate, which matures more than two years after the giving of bond by the administrator of the deceased maker, is a debt for which provision is made by Pub. Sts. c. 136, § 13, and therefore is not within the provisions of §§ 26 and 27, whether the personal estate be sufficient or not to pay it.</p>

<p>Petition, by the selectmen of North Attleborough, filed April 11,1899, praying that the respondent be held to answer for contempt. Hearing before Morton, J., who entered a decree with which both parties were dissatisfied, and at their request and before entry of the same reported the case for the consideration of the full court. The nature of the decree and the facts appear in the opinion.</p>

<p>Bill in equity, to restrain the foreclosure of a mortgage or trust deed executed by the first named defendant to Eugene A. Bascom, and praying for the appointment of a receiver of the first named defendant, and that the trust under the mortgage be executed by applying the proceeds of the property to the payment of the outstanding indebtedness of the first named defendant. Trial in the Superior Court, before Braley, J., who ordered a decree directing the receivers to pay a certain sum incurred by them in carrying on the business, certain promissory notes, and a certain sum for counsel fees, and reported the case for the determination of this court, such decree to be entered as justice might require. The facts appear in the opinion.</p>

<p>Contract to recover $500, as liquidated royalty, under a written contract dated March 1* 1898. Trial in the Superior Court, before Hardy, J., who excluded from evidence certain letters written before the execution of the contract and all other testimony offered by either side for the purpose of removing or explaining any supposed ambiguities in the contract, found that, if the excluded evidence were admissible, it confirmed the construction of the contract contended for by the defendant and found for the defendant. The judge reported the case for the determination of this court. If the finding was right, judgment was to be entered for the defendant; if wrong, judgment was to be entered for the plaintiffs in the sum of $500 with interest. The facts appear in the opinion.</p>

<p>Conditional Sale — Delivery — Title — Waiver — Custom — Usage — Carrier.</p> <p>If, in an' action of replevin against a carrier, it appears that the sale of the merchandise was conditioned on the sending of a note by the buyer to the seller, the question whether there was a waiver of the condition is a question of fact; and the fact that it was not the custom to send the note until after the buyer should verify the quality and count of the merchandise as compared with his order is immaterial, a delivery to the buyer not necessarily being a waiver of the condi- - tian, and it making no difference that the buyer could, to a certain extent, suit his own convenience in removing the merchandise from the custody of the carrier; and a usage for the buyer to sell directly from the warehouse, subject to the carrier’s lien for charges, does not go far enough, it not appearing that a buyer may sell and pass a good title without acquiring a good title himself.</p>

<p>Judgment — Attorney’s Lien — Exceptions.</p> <p>At the trial of an action brought by an assignee in insolvency upon a judgment recovered by the insolvent, it appeared that the first publication of notice was on June 8,1898; and that two days later the insolvent’s attorney, who had had charge of the case in which the judgment was recovered, took out a third execution for the amount remaining unpaid, namely, $298.77, and the next day collected $200, agreeing to receive that sum in full satisfaction, and surrendering the execution to the defendant. The jury were instructed that they should allow the defendant the fees and disbursements of the attorney in the former case, which the jury fixed at $50, but that they should not allow the residue of the payment, as the defendant had no right to settle witli the attorney after June 8. The defendant did not contest his liability for the amount of the execution in excess of the settlement, but excepted to the refusal to allow him the full amount paid. Held, that the instruction was correct.</p>

<p>Two petitions to enforce liens on buildings and land under Pub. Sts. c. 191. At the trial in the Superior Court, before Bell, J., the jury returned a verdict for the petitioner in each case, and the respondents alleged exceptions. The material facts appear in the opinion.</p>

<p>Petition to the Superior Court for a jury to assess damages for the taking of land by the respondent, for the widening of Brook Road in Milton. Trial in the Superior Court, before Richardson, J., who reported the case for the consideration of this court upon a certain ruling stated in the opinion; and the petitioners alleged exceptions. If the ruling was right, judgment was to be entered for the petitioners for $1,765.82; otherwise for $2,472.06 and interest.</p>

<p>Personal Injuries — Assumption of Risk — Instructions — Evidence — Care of Reasonably Prudent Person — Credibility of Witness — Conviction of Witness under Statute afterwards declared Unconstitutional.</p> <p>At the trial of an action for personal injuries occasioned to the plaintiff by a collision of the wagon in which he was riding and an electric car of the defendant at the junction of C. and N. streets, the defendant requested a ruling that if the plaintiff attempted to hurry across the street in front of a rapidly approaching electric car he assumed the risk of collision. In support of this request the defendant contended that the plaintiff was aware, before he turned to cross the tracks, that the car was approaching and that it was running very fast. Reference was made to the plaintiff’s testimony on cross-examination that, when he started to turn, the ear was “just west of the corner of A. Street; that he did not know whether it had stopped at the corner or not; that he should judge it was moving; that he could not say how fast it was then going; that when the car was about at D.’s liquor store it was going very fast; and that the seat on which lie was sitting was then over the space between the two lines of track.” The distance between A. Street and N. Street was one hundred and ninety-eight feet, and the liquor store was about opposite S. Place, which was about half way between A. Street and N. Street. There was nothing to impede the view of both the motorman and the plaintiff as they approached each other. Held, that the theory of the defendant was not supported by the evidence.</p> <p>If, in an action for personal injuries occasioned to the plaintiff by a collision of the wagon in which he was riding and an electric car of the defendant, the judge instructs the jury that the care required of the plaintiff or the defendant is that care which a reasonably prudent person would exercise under like circumstances, and the situation is clearly pointed out to the jury, a request by the defendant for a ruling that the driver of a wagon on a street where electric cars run must use more care than when he drives on a street where they do. not run, is rightly refused.</p> <p>To affect the credibility of a witness under Pub. Sts. c. 169, § 19, the defendant was allowed, against the objection of the plaintiff, to put in evidence the record of the conviction of the witness in the Circuit Court of the United States, in 1878, for fraudulently violating a registered trade-mark. The next day the attention of the court was called to the fact that shortly after the conviction the statute was declared to be unconstitutional. The judge instructed the jury that the effect of the conviction was for them, and that the fact that the statute had been declared unconstitutional could be taken into consideration. Held, that the defendant had no ground of exception.</p>

<p>Malicious Prosecution — Exceptions — Evidence — Malice.</p> <p>If no exception is taken to the admission of testimony, the question whether it was admissible or not is not open.</p> <p>In an action for a malicious prosecution of a former suit brought by the defendant against the plaintiff, it is competent to prove what was said by the defendant in the original action and by his wife to the officer who made the attachment, as to the wife’s ownership of the property attached, this being communicated to the plaintiff. It was notice to the plaintiff in that action that the property belonged to the wife, and his answer that “they would not stay without their furniture; they would come around and settle,” was admissible to show malice on his part.</p> <p>If, in an action for a malicious prosecution of a former suit brought by the defendant against the plaintiff, the answer to a question put to a witness, as to what he heard and saw after he arrived at the place where the officer had just attached the alleged property of the defendant in the original action, disclosed anything immaterial or incompetent, the defendant in this action should have asked to have it stricken out; and this not having been done, and no exception having been taken to the answer, he has no ground of complaint.</p>

Tort, for personal injuries occasioned to the plaintiff by reason of the alleged negligence of Dr. Rufus P. Hubbard, who, as the plaintiff contended, was employed by the defendant to make a physical examination of the plaintiff for the benefit and information of the defendant. , Trial in the Superior Court, before Bell, J., who, at the close of the evidence for the plaintiff, directed the jury to return a verdict for the defendant, and, at the request of the plaintiff,…

<p>Bill in equity for the specific performance of a written agreement, by which the parties undertook to exchange certain parcels of real estate, the plaintiff’s being known as the “ Hotel Alexandra ” in Boston. At the trial in the Superior Court, before Gasldll, J., the defendants requested a ruling that they were not required to take the offered title ; but the court ruled otherwise; and ordered a decree requiring specific performance of the contract. The facts appear in the opinion.</p>

Bill in equity for instructions as to the construction of the will of Eustace C. Fitz. Hearing before Knowlton, 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>Petition in equity, by the administrator de bonis non with the will annexed of the estate of Oliver Bacon, for instructions as to the construction of his will as to the distribution of the personal estate in his hands, being the unexpended balance of proceeds of real estate sold under license of the Probate Court by him as administrator to pay debts and charges of administration. The value of the real estate remaining unsold was $11,750. Hearing before Enowlton, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Two PETITIONS to the Probate Court by the executors of the will of Edward Austin, asking instructions as to the payment of a succession tax under St. 1891, c. 425. Decrees were entered and a hearing was had in this court on appeal, before Knowlton, J., who reserved the cases for the consideration of the full court. The facts appear in the opinion.</p>

<p>The first CASE was a bill in equity by the trustees under the will qf Calvin Ellis to obtain the instructions of the court as to the construction thereof. The will provided that the trustees should pay the net income of certain property to the sister of the testator Lucy Ellis, during her life, and upon her death without issue living at her decease should pay to the president and fellows of Harvard College $50,000 for certain purposes set forth in the opinion, and should convey the residue to the said president and fellows for certain other purposes set forth in the opinion. The testator’s will was proved in 1884. Lucy Ellis died on June 22, 1899, without issue living at the time of her decease and never having been married. She left a will which was proved on August 17,1899.</p> <p>The second CASE was a bill in equity by the administrator with the will annexed of "the will of Lucy Ellis, to obtain the instructions of the court as to the construction thereof. The cases were heard together upon the bill and answer in each case, and, at the request of the parties, were reserved by Knowlton, J. for the consideration of the full court. The facts appear in the opinion.</p>

<p>Tort, against Charles C. Hutchinson the lessor, and E. A. Carlisle and S. A. Pope the lessees, of a building on Sudbury Street in Boston, for personal injuries sustained by the plaintiff while walking on the sidewalk in front of the defendants’ building by the fall of a piece of stone from the capstone of a window in the third story of the building. At the trial in the Superior Court, before Aiken, J., the jury returned a verdict for the plaintiff, and the defendant Hutchinson alleged exceptions. After the trial the plaintiff moved for judgment against the defendants, Carlisle and Pope, the motion was allowed, and those defendants appealed to this court. The material facts appear in the opinion.</p>

<p>Personal Injuries — Evidence — Witness— View by Jury — Exceptions — Assumption of Risk — Negligence — Due Care.</p> <p>A written paper signed before the time of the trial by a person called as a witness and under cross-examination may be put in evidence to show that he had made statements different from his testimony.</p> <p>In an action for personal injuries occasioned to the plaintiff by falling through a hole in the floor of the room in which he was employed, evidence tending to show that the plaintiff had said, soon after the accident, that he knew that the hole was there, he having testified that he did not know that the floor was taken up at that place, is admissible both as a contradiction and as an admission of his knowledge of the existence of the opening, that knowledge being itself material upon the question whether he was careful or negligent.</p> <p>It is proper to allow evidence to show, if such a matter is in dispute, how far, if at all, the conditions due to temporary causes at the time of the view by the jury differed from those which existed at the time of the accident.</p> <p>At the trial of an action for personal injuries a witness for the defendant, who for some years had been in charge of the room in which the accident occurred, was allowed to testify as to whether there would have been steam enough in the room at the time of the accident to obstruct the view of a man of ordinary eyesight. The witness was in the room shortly before and shortly after the accident, but not when it occurred. The bill of exceptions did not disclose enough to show that the matter was not one upon which the opinion of a qualified expert was admissible, nor make it clear that the witness was not so qualified. Held., that upon both these matters much must be left to the judge who controls the trial.</p> <p>If no exception to the course of the presiding judge with respect to a plan is shown by the bill of exceptions to have been taken, and before the plan was allowed to go to the jury it was sworn to by the engineer who made it, no error in dealing with the plan is shown.</p> <p>A person cannot be allowed to make a contention in this court which the bill of exceptions does not show that he made at the trial.</p> <p>If, in an action for personal injuries occasioned to the plaintiff by falling through a hole in the floor of the room in which he was employed, the substance of the instruction given as to the assumption of the risk is that if the plaintiff knew that the hole was there, or would have known of it in the exercise of proper care with reference to what was going on there so far as he knew it, he could not recover, and that if he did not know of the opening and would not have known of it in the exercise of proper care, the jury must inquire whether the injury was due solely to some neglect of duty on the defendant’s part, the plaintiff has no ground of complaint.</p>

Tout, for slander and assault. The defendant was the proprietor of the Hotel Huntington, situated on Huntington Avenue in Boston, and the plaintiff occupied as tenant of the defendant certain rooms on the first floor. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.*

Petition for a writ of certiorari to quash an assessment for betterments made under St. 1893, c. 339, and St. 1894, c. 439, for the construction of Boylston Street, a public way in the city of Boston. Hearing before Knowlton, J., who was of opinion that the petition should be dismissed, but, at the request of the petitioners, reported the case for the consideration of the full court. The material facts appear in the opinion.

Appeal, from a decree of the Judge of Probate, allowing an instrument as the will of Mary Caroline Mason and disallowing two later instruments, each of which the witnesses signed first in the presence of the testatrix, she signing immediately afterwards in their presence. Hearing before Barker, J., who reported the case for the determination of the full court.

<p>Tobt, for personal injuries sustained by the plaintiff while participating in a sport at the amusement ground of the defendant. Writ dated September 1,1897. Answer, a general denial. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The material facts appear in the opinion and in a note by the reporter.</p>

<p>Petition, to set aside a decree of divorce for adultery of the petitioner, brought against the executors of the will of the petitioner’s husband, Robert B. Brigham, and his next of kin and sole heirs at law. The executors demurred to the petition, assigning, among other grounds therefor, loches and lack of due diligence in bringing the petition. Hearing before Hammond, J., who reserved the case upon the demurrer for the consideration of the full court. The facts appear in the opinion.</p>

<p>Petitios to the Probate Court, under Pub. Sts. c. 147, § 33, for separate support. The case was submitted on appeal to the Superior Court, and, after an order to the respondent to pay certain sums at certain times to the petitioner, to this court, on appeal, upon an agreed statement of facts, the nature of which appears in the opinion.</p>

Contract, against the principal and sureties on á bond given under the bastardy act. Trial in the Superior Court, before Blodgett, J., who found for the defendants, and at the request of the plaintiff reported the case for the consideration of this, court. If the finding was wrong, the case was to be sent to an assessor to determine the amount recoverable by the plaintiff; otherwise judgment was to be entered for the defendants.

<p>Petition, to enforce a mechanic’s lien. Trial in the Superior Court, before Aiken, J., who found the lien to be established; and the respondents alleged exceptions. The material facts appear in the opinion and in a note by the reporter.</p>

<p>Municipal Court — Appeal — Indorsement on Bond.</p> <p>The indorsement on a bond given on taking an appeal from a municipal court, “Bond and Surety approved. Bond filed. N. T. M., Jr., Clerk,” in the absence of anything further, sufficiently shows that the bond was approved by the court as required by St. 1888, c. 325, § 1.</p>

<p>Bill nr equity, filed March 8, 1898, by William H. Staples of Lowell, against the city of Somerville, Edward F. Staples, William A. Sanborn, John Harrington, William J. McCarthy, T. Fred Berry, and E. Rhodes Ferguson, to compel the first named defendant to pay the balance alleged to be due under a contract for the erection of a schoolhouse, to determine how much, if any, of such fund is due to the defendant Harrington, and to restrain the individual defendants from prosecuting certain actions at law.</p> <p>The bill alleged that the defendant Staples, on October 3, 1896, made a contract to erect a schoolhouse for the city of Somerville for the sum of $23,000, and gave a bond with the American Surety Company as surety for the faithful performance of the contract; that before the execution of such bond by the surety the plaintiff gave to it a bond for $8,000 to indemnify it against loss from its undertaking as surety; that the defendant Staples began the work but was unable to finish"it, and on April 10, 1897, assigned the contract and all moneys, benefits, and emoluments to be derived therefrom to his father, the plaintiff, who, at the suggestion of the city solicitor of Somerville and others, assumed charge of the work for his own protection; that at the date of the assignment the defendant Staples had been paid by the city of Somerville under the contract the sum of $8,500, and he had no further claim against the city thereunder; that on April 21, 1897, notice of the assignment was given to the city of Somerville, and the assignment was afterward recorded in the office of the city clerk of Somerville and in the office of the city clerk of Lowell; that the city or its representatives did not consent in writing to the assignment to the plaintiff pursuant to the terms of the contract, but that the plaintiff completed the contract at his own expense without objection from the city, which accepted the building in September, 1897; that the plaintiff expended for labor and materials the sum of $18,540, and received from the city of Somerville the sum of $10,500, being the proceeds of checks payable to the joint order of himself and his. son, Edward F. Staples, which were receipted for by their joint receipts; that a balance of $4,000, due under the contract, remained in the possession of the city, which the city was ready to pay to the person entitled thereto; that subsequent to February 17, 1897, an order for the payment of the sum of $1,000.50 was handed to the city treasurer by John Harrington, the payee, which the treasurer refused to accept; that on July 30,1897, the defendant McCarthy filed in the registry of deeds a statement of a lien for $450, for labor furnished on the building; that on November 29, 1897, the defendant Staples filed a voluntary petition in insolvency, and on December 21, 1897, the defendant Sanborn was appointed assignee of his insolvent estate, and, as such, claimed the balance of $4,000, due under the contract; and that, on August 3, 1897, and on subsequent dates, actions were commenced by the defendants Berry, Ferguson, Sanborn, and McCarthy against the defendant Staples, in which the city of Somerville was summoned as trustee of the goods, effects, and credits of the principal defendants therein, which were pending at the date of the bill.</p> <p>. The prayer of the bill was that the assignment to the plaintiff be declared valid; that a decree be entered requiring the city of Somerville to pay to the plaintiff the balance of $4,000, due under the contract; that it may be determined to what proportion if any of the $4,000 the defendant Harrington is entitled ; and that the defendants Sanborn, McCarthy, Berry, and Ferguson be enjoined from prosecuting their actions and be ordered to discontinue them as against the trustee, and be further enjoined from prosecuting any action for the same cause of action in which the city of Somerville shall be summoned as trustee.</p> <p>The order referred to in the bill, dated February 18, 1897, was signed “ E. F. Staples, Contractor,” and requested the city of Somerville to “ pay to the order of John Harrington one thousand $1000fVo dollars being part payment of stone furnished by him for the Ward One schoolhouse and charge the same to second payment on contract from this date for said school.”</p> <p>By article 10 of the contract it was provided that the builder “ shall not assign this contract . . . without the consent in writing given by the Committee on Public Property of the City Council of said city.”</p> <p>The city of Somerville filed an answer by which it offered to pay the balance af $4,000 to the party equitably entitled thereto, and asked that the parties be required to interplead, and that the court order and decree to whom the payments should be made.</p> <p>At the trial in the Superior Court, before Fessenden, J., there was evidence tending to show that the defendant Edward F. Staples received the first four payments, amounting to $8,500, at the times stipulated in the contract, and that no other payment was earned by him; that in the order given by him to Harrington the phrase the “ second payment on the contract from this date ” referred to the fifth payment mentioned in the contract ; and that the order was not accepted by the city, but was held by the treasurer, to be paid if money should come into his hands belonging to Edward F. Staples with which to pay it.</p> <p>The defendant Harrington requested the judge to rule that he was entitled to a decree for $1,000.50, being the amount of the order given to him by the defendant Staples, with interest from September, 1897, to be paid by the city of Somerville out of the balance of $4,000 then held by it. The judge declined so to rule; and the defendant Harrington excepted.</p> <p>The judge entered a decree that the city of Somerville pay to the plaintiff the sum of $4,000 ; that the defendant Harrington was not entitled to any portion thereof; that the defendants Sanborn, McCarthy, Berry, and Ferguson discontinue their actions as against the city of Somerville as trustee, and be further enjoined from prosecuting any action in which the city of Somerville shall be summoned to answer as trustee of the defendant Staples by reason of its possession of the sum of $4,000 or any portion thereof.</p> <p>All the defendants except the city of Somerville appealed to this court.</p>

<p>Will — “ Children of my Deceased Brothers and Sisters ” — Statute of Distributions.</p> <p>A legacy “ to the children of my deceased brothers and sisters ” of “ all the rest of said stock or securities, to be divided among them as provided in the statutes of the Commonwealth in such cases made and provided,” means a division according to the statute of distributions.</p>

Tout, for personal injuries sustained by the plaintiff on November 3, 1896, by reason of a fall occasioned by the alleged defective, dangerous, and improper construction of a flight of stairs and the entrance thereto, in a building owned by the defendant. Trial in the Superior Court, before Hardy, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

<p>Statute — Constitutional Law — Contract to recover a Portion of Sewer A ssessment — A ction — R emedy.</p> <p>In determining whether a statute is unconstitutional, the question is not whether the result is harmful in the particular case, but whether the statute, according to its terms, will violate the provisions of the Constitution in its application to cases which may be expected to arise.</p> <p>An assessment under St. 1892, c. 402, entitled “ An Act relating to sewers in the. city of Boston,” being required to be made according to the lineal measurement of the land along the sewer, that parcel, which receives but slight additional benefit from a turn in the sewer, is doubly assessed; and the statute in this respect is unconstitutional.</p> <p>The decision in Weed v. Boston, 172 Mass. 28, as to the unconstitutionality in certain respects of St. 1892, c. 402, entitled “An Act relating to sewers in the city of Boston,” is reaffirmed.</p> <p>An assessment under St. 1892, c. 402, relating to sewers in the city of Boston, being void, and the payment by the plaintiff having been induced by compulsory process and made under protest, it may be recovered back in an action of contract; and the fact that the collection was made under St. 1891, c. 323, §§ 16, 18, by adding part of the assessment to the general tax of the plaintiff, does not affect his right.</p>

<p>Will— Codicil— Previous Declarations of Testator — Exercise of Discretion by Presiding Justice — Contradiction of Testimony of Witness — Statute — Alterations and Interlineations — Presumption of Law — Burden of Proof.</p> <p>If an offer is in substance to show by a previous declaration of the testator in regard to the disposition of his property by a will then existing, that he understood the will in a way which would make it improbable that he would refer to it as he did in the codicil as it was finally written, the judge, in the exercise of his discretion, may well hold, in view of other facts, that the evidence is too remote.</p> <p>If a person is called as a witness, evidence offered of statements made by him tending to contradict his testimony, without previously calling his attention to the statements, is rightly excluded under Pub. Sts. c. 169, § 22; and it is a sufficient answer to the contention that, because the witness was a witness to the will and codicil in question, the statute should not apply to him, that he was not called as a witness to prove the will and codicil, they having been proved and allowed many years before, but to show that the decree of the Probate Court was erroneous.</p> <p>At the trial of a petition for revocation of probate of a codicil, on the ground that certain words materially altering the legal effect were added after execution, the petitioner is not entitled to a ruling “ that the words in the margin being unnoted, and being in different ink, the presumption of law in this case is that they were added after execution,” there being no presumption of law in a case of this kind as to the time when the disputed words were written, but the question being one of fact to be determined on all the evidence; and another reason which justifies the refusal to give the ruling is that all presumptions are in favor of the decree, and it cannot be set aside without clear proof, the burden being on the petitioner.</p> <p>The burden of proof is on a party presenting a will to show that alterations or interlineations in it were made before its execution, and unless there is something in the nature of them, as applied to other parts of the writing, or unless there is other evidence to show that they were a part of the will when it was executed, they will be rejected for want of proof; and anything in the paper itself, as well as in the evidence from outside, which makes it more probable that the changes were made before the execution than that they were made after execution, is sufficient to give the alterations validity.</p>

Tort, for personal injuries occasioned to the plaintiff on February 4, 1897, by an explosion of dynamite in a trench in which he was working at shovelling and picking. The declaration was at common law. At the trial in the Superior Court, before Blodgett, J., the defendant requested the judge to instruct the jury as follows : “ 1. There is no evidence which entitles the plaintiff to recover under the first count of his declaration. 2.

<p>Findings of Fact by Single Justice on Appeal in Equity — Auditor's Report.</p> <p>On an appeal in equity a judge's findings of fact, founded in part upon the oral testimony of witnesses heard before him, will not be set aside unless they are clearly wrong; and an auditor’s report being part of the evidence makes, under the statute, a prima facie case in favor of the party whose claims it supports.</p>

<p>Death without Conscious Suffering — Employers’ Liability Act — Evidence — Dependency— Question for Jury — Right of Alien to Sue.</p> <p>A statute cannot impose duties upon a non-resident alien, but it may confer rights upon him. The St. of 1887, c. 270, § 2, confers a right to sue upon the next of kin who is a non-resident alien.</p> <p>A plaintiff in an action under St. 1887, c. 270, § 2, for causing the death of her son, properly may he asked to what extent, if at all, she was dependent upon him for support.</p> <p>Partial dependence for the necessaries of life is enough under St. 1887, c. 270, § 2.</p>

<p>Tort, in several counts, for libel. At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict for the defendant; and the plaintiffs alleged exceptions, which appear in the opinion.</p>

<p>Carrier — Due Care — Loss of Passenger's Property in Sleeping Car — Breach of Duty — Action — Evidence.</p> <p>At the trial of an action against the B. & A. Railroad Company and the W. Palace Car Company for the loss of a travelling bag, it appeared that the plaintiff was a passenger on a sleeping car of the W. Company, which was hauled with other cars from Albany to Boston by the B. & A. Company, leaving Albany at three o’clock in the afternoon and arriving at Boston at nine in the evening; that the W. Company had no control of the car in so far as its movement over the roadbed was concerned, but retained the internal management thereof and hired the porter and conductor for the car; that the porter carried the bag to the section nearest the front door of the car; that the plaintiff remained by it for ten minutes and then went into the smoking compartment of the car at the rear end; that he remained there half an hour, and then returned to his section, took something out of his bag, and returned to the smoking compartment and remained there until the train was approaching Boston; that he then went to his section but the bag was gone, search was made for it but it could not be found; that the train made three stops between Albany and Boston; that the porter testified that he received one passenger at the first stopping-place but none at the other two ; that two passengers left the car at the second stopping-place, neither of whom had a hand bag; that no passengers left at the other stations, and that while the train was in motion passengers walked back and forth from the other coaches. He further testified that there were three sleeping cars on the train, and it appeared that there were also ordinary cars. Held, that the plaintiff was not in the exercise of due care, and that there was no evidence of a breach of any duty which either of the defendants owed the plaintiff.</p>

<p>Contract, in the name of the plaintiff, for the benefit of B. Dazzi, to recover the value of a box alleged to have contained two paintings of the value of $3,000, and to have been delivered by the plaintiff to the defendant in Boston for carriage and delivery to Dazzi in New York city, and to have been lost by the defendant and not delivered. The answer admitted the receipt by the defendant from the plaintiff of a box to be forwarded and delivered to Dazzi in New York city, and alleged, among other ,things, that the box was delivered to the defendant without any statement of its value or contents ; that it bore no indication on the outside of the nature of its contents or of their value; that the defendant was and had remained ignorant of such contents and value; and that the box was received by the defendant to be forwarded and delivered only under and upon the terms of an agreement in writing made and accepted in that behalf by the plaintiff, by which it was, among other things, provided that the value of the box was $50, and that the plaintiff should not in any event demand beyond that sum for it. The answer further alleged a tender of $55 by the defendant to the plaintiff before action brought, and the $55 was brought into court under the common rule by the defendant with its answer.</p> <p>Trial in the Superior Court, before Fessenden, J., who ruled that the action could not be maintained to recover more than the amount tendered and paid into court by the defendant, and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions, which appear ip the opinion.</p>

Bill in equity, by the trustee of a trust deed made by the Worcester Brewing Company, praying for the appointment of a receiver, and the sale of the property by the court. A receiver was appointed, and- all the property, real and personal, was sold by a commissioner under a decree of the court, being subject to mortgages and attachments.

<p>Beneficiary Association — Substitution of Second Certificate for First — Invalid Designation — Right of Executrix to Sue.</p> <p>The substitution of the second certificate for the first issued by a benefit association being effective as between the member and the corporation, an invalid designation in the second has no different effect from what it would have had in the first, and an action may be maintained on the second certificate by the executrix of the member.</p>

<p>Contract, to recover $500 “ received from .Morris Bravman and Mark Lewis to the use of the plaintiff.” Trial in the Superior Court, without a jury, before Hardy, J., who refused to give certain rulings requested by the defendants Bravman and Lewis, and they alleged exceptions. The' facts appear in the opinion and in a note by the reporter.</p>

<p>Complaint, under St. 1895, c. 497, entitled “ An Act to regulate the making of loans upon deposits or pledges of personal property,” to the Municipal Court of the city of Boston, alleging that Max Danziger “ on the ninth day of October in the year of our Lord one thousand eight hundred and ninety-nine and on divers other days and times between that day and the day of making this complaint, at the City of Boston aforesaid, and within the judicial district of said Court (the said city being then and on said other days and times a city of more than ten thousand inhabitants) did engage in and cony on the business of loaning money upon mortgages, deposits and pledges of wearing apparel, jewelry, ornaments, household goods and other personal property; the said Danziger not being then and on said other days and times there duly licensed as a pawnbroker.’.’ The defendant moved to quash the complaint: 1. Because no crime or offence is fully, plainly, substantially, and formally described or set out therein. 2. Because it sets out no offence or crime against the laws of the land or the statutes of this Commonwealth. 3. Because the statute on which said complaint is founded is unconstitutional and void. 4. Because that statute is against public policy and in restraint of trade.</p> <p>The motion was overruled ; the defendant was found guilty, and he appealed.</p>

<p>Complaint, under St. 1899, c. 223. At the trial in the Superior Court, before Sheldon, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear" in the opinion.</p>

<p>Liability of Stockholder in Foreign Corporation — Judgment — Action — Statute of Limitations — Laches — Equitable Defence — Husband cund Wife — Guaranty.</p> <p>Stockholders in corporations organized under the laws of Kansas are liable severally, and not jointly, to the judgment creditors of the corporation who pursue the remedy provided by Gen. Sts. of Kansas of 1889, par. 1192. This liability is transitory, and may be enforced in any court of general jurisdiction in a State where personal service can be made upon a stockholder; and the failure of such a creditor to recover judgment against a resident stockholder in this Commonwealth, and to have the execution returned unsatisfied here, is no bar to an action on the judgment recovered in Kansas.</p> <p>In this case, which was an action against a stockholder in a corporation organized under the laws of Kansas, upon a judgment recovered against the corporation there, the statute of limitations of that State is not a bar.</p> <p>The doctrine of loches does not apply in an action at law in reference to which there is an express statute of limitations.</p> <p>A stockholder in a corporation organized under the laws of Kansas, who holds claims against the corporation, may, in accordance with the law in that State, avail himself of the same as an equitable defence to an action against him here upon a judgment recovered against the corporation there; but although by the law of that State he also may be allowed to set off the amount paid by him in' good faith for claims purchased after the insolvency of the corporation, if such a claim is one owned originally by his wife, he cannot set it off in the absence of evidence that the arrangement was such a purchase in good faitli or such a payment as entitles him to use the claim as an equitable defence to this action.</p> <p>A loan and trust company, upon the sale by it of a bond of another corporation, has power to guarantee the payment of such bond to the purchaser.</p>

<p>Promissory Note — National Bank— Clearing-house Settlement— Custom — Finding.</p> <p>In an action by one national bank against another, both being members of a clearing-house association, to recover the amount of a promissory note included in the account in the clearing-house of the defendant bank against the plaintiff bank, at which it was payable, and returned by the plaintiff to the defendant after the close of business hours, if there is evidence of a universal custom among the members of the association, which choose to clear their notes through the clearing-house in place of presenting them for payment at the banks where they are payable, that if notes included in the clearing-house settlement which turn out not to be good are not returned before the time of closing of the paying bank, the conditional payment becomes absolute, a finding for the plaintiff is not warranted.</p>

<p>Corporation — Secret Profits made by Promoters — Fraud — Damages — Parties.</p> <p>Promoters of a corporation, who, before any capital stock has been issued to the public, cause to be issued to themselves, as a remuneration for their services as such promoters, by the vote of all persons who then had any interest in the corporation, they being the promoters, one third of the whole capital stock, and then issue a prospectus to the public inviting subscriptions to the stock without disclosing that fact, are guilty of a fraud, and are liable to a suit in equity, which should be brought in the name of the corporation and not in that of the receiver, to account for the net profits received by them, less the expenses of the formation of the corporation paid by them, the plaintiff having the option to follow the shares or the proceeds or to recover damages, and not being obliged to tender back the lands acquired by the corporation under a contract executed in pursuance of the vote above named; and the objections that the suit was being prosecuted for the benefit of certain persons to the exclusion of other creditors of the corporation, arid that it was not proved that the persons named were creditors, are not tenable on the facts in this case.</p>

<p>Tort, in three counts, for libel and malicious injury to the plaintiff’s business. The answer contained a general denial, and set out that the alleged libellous matter was true, and was published without malice, and also that it was a privileged communication. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>It appeared that the defendant was a member of the Plumbers’ Supply Association of New England, a corporation formed under the laws of this Commonwealth for the purpose, as stated in its certificate of incorporation, “ of promoting pleasant relations among its members; discussing, arbitrating, and settling all matters pertaining to the prosperity and promotion of the jobbing plumbers’ supply business ; and establishing and maintaining a place for social meetings ”; that among its by-laws was the following: “Usage and Custom. It shall be the duty of members of this association, in order to promote uniformity and certainty in the usage and custom in the trade, and to conform to the same, to sell only for cash paid before delivery, to customers who have unjustly failed to meet their trade contracts and obligations, and so long as that failure continues ”; and that the association had established an elaborate system of notices, letters, and circulars concerning delinquent debtors of members of the association, to compel them to settle their accounts with the members, substantially as follows: (1) A letter to be addressed by the member to his debtor, calling his attention to the unpaid account and notifying him that if it is not paid in ten days it will be referred to the association; (2) a letter to be addressed by such member to the secretary of the association, calling attention to the fact that a designated debtor of the member is delinquent and has been notified of his delinquency; (3) a letter of the secretary to the delinquent debtor, notifying him that unless he pays up within ten days from date the members of the association will be notified of the same, and in consequence thereof the debtor may be unable to purchase any goods from any of them except for cash before delivery; and (4) such delinquency continuing the time mentioned, and the debtor making no response, a letter from the creditor to the secretary of the association requesting him to notify every member. Thereupon the secretary gives such notice, and the name of such delinquent debtor is entered upon a book of delinquents to be kept by each member for that purpose, who thereafter refuse to deal with the delinquent except for cash before delivery.</p> <p>It also appeared that the plaintiff was a retail plumber, who had previously traded with the defendant, and had paid'his previous accounts with the defendant; and that in November, 1895, he was owing the defendant on a subsequent account a balance of $500 and over, when a question arose between the parties, which formed the basis of the defendant’s acts, of which the plaintiff complains.</p> <p>There was evidence tending to show that the plaintiff had been in his business for many years; that in 1889 he met with reverses which compelled him to compromise with his creditors, and had recovered in part from such reverses at the time he traded with the defendant, with all of which the defendant made himself acquainted by investigation before trading with him; that the plaintiff’s total business at the time, and for some time prior to the transactions with the defendant, was about $7,000 or $8,000 a year; and that since the acts of the defendant complained of, the plaintiff’s business had dwindled to nothing. There was conflicting testimony as to whether the plaintiff’s loss of business was or was not ascribable to the defendant’s acts.</p> <p>The defendant, who was called as a witness by the plaintiff, was asked by his own counsel the following question: “You were one of the original members of the Plumbers’ Supply Association, were you?” To which he answered, “Yes.”</p> <p>The defendant was then asked, against the plaintiff’s objection, the following questions: “ Was there any ulterior purpose on your part in forming the association beyond what was stated in the by-laws and charter ? Whether or not, after the association was formed, and down to the time when you sent the notices, which appear in evidence, to Mr. Dupee concerning Mr. Hartnett, from the time Mr. Dupee sent out the other notices to Mr. Hartnett, anything had occurred which had led you to think that what you were doing was illegal or unlawful ? ”</p> <p>Each question was answered in the negative; and the plaintiff excepted to its admission.</p> <p>The following question was put to the defendant: “ What was your understanding from what you knew of the business of the association and the way in which it was conducted, and the practices of the association and its by-laws, — what would be the course of business in case Mr. Hartnett, in response to this circular sent out by Mr. Dupee [circular exhibited], and the one of similar tenor previously sent, had notified Mr. Dupee that he disputed the account? What would then be the course about sending out any notice to the members of the association?” This question was objected to by the plaintiff, but was allowed; and the defendant answered, “ I would be notified by Mr. Dupee that the account was disputed, and no notices would be sent out to the members till the account was finally adjusted.” The plaintiff excepted.</p> <p>During the course of the defendant’s examination by the plaintiff he was asked if his proceedings, through the association, were not intended to compel the plaintiff to pay the defendant’s demand, by depriving the plaintiff of his credit and bringing him into disrepute among other members of the association; and the defendant answered affirmatively.</p> <p>. His counsel then asked him: “You answered, in response to Mr. Dudley’s questions as to what you intended should be understood by the members of the association on receipt of the notice; whether or not you intended that the members of the association should do anything more than was provided by the by-laws of the association, namely, cease to supply him with goods except for cash.” The plaintiff objected to this question, but the judge admitted it. The defendant answered in the negative; and the plaintiff excepted.</p> <p>John B. Dupee, who was the secretary of the association, was called as a witness for the plaintiff, and identified several circulars and letters referred to in the plaintiff’s declaration, as well as others, relating to the process of dealing with the plaintiff through that association. The defendant was then permitted to examine him upon the practice of the association in regard to arbitration between the retail plumbers and the members of the association in case of differences, though no evidence had been put in on either side that either of the parties had requested or submitted to arbitration in regard to such differences; and the plaintiff excepted.</p> <p>The case was submitted to the jury under instructions not excepted to.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Bill in equity, for an injunction to restrain the defendants from building an addition to their store building, in violation of a provision in a deed of land in Leominster. The case was submitted to the Superior Court on an agreed statement of facts, in substance as follows.

<p>Valid Public Charity — Agreed Facts — Legacies not Void if General Charitable Intent appears.</p> <p>A testator gave devises by will to “a Rest Home for worthy working girls” and to an “ Old Ladies’ Home.” The agreed facts recited that in neither are the advantages of the institution furnished to the inmates for profit, and in neither is there any provision made for making dividends or profits; that when incorporated they have no capital stock; that their funds are derived from voluntary contributions from benevolent persons, supplemented by such sums as may be received from the inmates, and whatever funds are received are devoted to the purposes of the institution; that a “ Rest Home ” is a place of rest for girls who are working for small wages, where they may go and board in the country at a low price; that some are endowed, some are under the general management of charitable organizations, and some are managed by trustees; that they are not usually incorporated; that the object of an “Old Ladies’ Home” is to provide a home for aged, homeless, and indigent women; that inmates are received and provided with a home during life, including clothing, sometimes without any payment, and sometimes upon the payment of a small fee fixed by the by-laws; that the control is usually vested in managers who serve gratuitously, and that old ladies’ homes are usually incorporated. Held, that the institutions constituted valid public charities, and that the clause in the will making the devises “the plan to be hereafter devised or left in care of said executor,” manifested a general charitable intent, leaving undetermined the particular manner in which it should be carried into effect.</p> <p>The rel'erence in certain clause's of this will to a “Rest Home” is to a valid public charity created by a previous clause in the will, and the gift is valid in each case.</p> <p>In case of a gift for charitable uses, the general charitable intent being clear, the court will carry it into effect notwithstanding there may be uncertainty in regard to the particular persons or objects intended to be benefited by the testator’s bounty ; and in this case the gift “to W. C. T. U. or Rest Home in Chicopee Street, Mass.,” being to the Massachusetts Woman’s Christian Temperance Union, and a Rest Home in Chicopee for worthy working girls, both valid public charities, the legacy is to be divided equally between them.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, who was fifty-eight years of age, on March 8,1897, while in the defendant’s employ. The declaration was at common law. The plaintiff was employed to run a freight elevator in the “ weaving mill ” of the defendant, and as a part of his regular work was required to oil once a week the pulleys and the shafting which operated the elevator. As these were attached to the ceiling, about twelve feet above the surface of the third or upper floor of the mill, the plaintiff, to reach them, used a ladder which had been spliced.</p> <p>At the trial in the Superior Court, before Sherman, J., the defendant requested the judge to rule as follows:</p> <p>“ 1. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>“2. Upon the evidence in this case you will find that the plaintiff, at the time he sustained the injuries alleged, was not in the exercise of due and reasonable care, and is not entitled to recover.</p> <p>“ 3. There is no evidence of any negligence on the part of the defendant company, and the plaintiff, is not entitled to recover. . . .</p> <p>“ 6. If you find that the ladder which broke on the occasion in question was a ladder which'had been in use by the plaintiff for the purpose of oiling the pulleys for a period of several months prior to the accident, and that said ladder during said period of use had been in the same condition that it was in at the time of the accident, you will find that the plaintiff assumed all risk arising from the use of said ladder, and is not entitled to recover in this action.</p> <p>“ 7. There is no evidence in this case that the breaking of the ladder was the direct and proximate cause of the plaintiff’s falling and sustaining the injuries claimed, and the plaintiff is not entitled to recover.</p> <p>“ 8. The breaking of the ladder is not, of itself, evidence of negligence on the part of the defendant company, and the plaintiff is not entitled to recover.”</p> <p>The judge declined so to rule, and the defendant excepted.</p> <p>The judge submitted the case to the jury upon the issue of whether or not the plaintiff knew and appreciated the danger of using this ladder, which appeared to have been made, spliced, and repaired by the defendant, and ruled that, if he did, he could not recover, and the judge gave instructions concerning the due care of, and assumption of-risk by, the plaintiff, and negligence of the defendant, and gave other instructions not objected to, and also instructed the jury that if the plaintiff did not use the ladder as he was instructed to use it, and that caused or contributed to the injury, he could not recover.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Contract, on an account annexed for moving buildings in Cambridge. The answer set up, among other things, non-performance due to the destruction of the building by fire, by reason of the negligence of the plaintiffs. At the trial in the Superior Court before Stevens, J., the jury returned a verdict for the plaintiffs; and the defendant alleged exceptions, which appear in the opinion.</p>

Bill in equity, to restrain the defendant from maintaining a fence on each side of its railroad across an alleged right of way, and to compel it to replace-the planks removed by it from said way.

Contract, upon a promissory note. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Employers' Liability Act — Evidence justifying a Verdict for the Plaintiff.</p> <p>In an action for personal injuries under the employers’ liability act, St. 1887, c. 270, evidence which, though contradictory, justifies a finding that T. was a person whose principal duty was that of a superintendent; that as such superintendent he gave to the plaintiff the order to start up the machine; that at the time of the order he had reason to know that the plaintiff might understand it as a command to try to ascertain by resuming his work whether the machine was all right; that he so understood the order and was justified in so understanding; that, acting thereon, he attempted to resume work; that while so doing and in the exercise of due care, by reason of the violent and unusual shaking of the machine, his hands were thrown from their usual place and the presser came down upon his fingers and crushed, them, and that under the circumstances the order was negligent, makes a case for the plaintiff.</p>

<p>Contract, to recover a balance of $2,681.21 for services rendered as an attorney, and cash paid by the plaintiff for the defendant. The answer set up, among other things, that the employment of the plaintiff was for the limited purposes of getting the defendant a discharge from his debts, and of litigation with the defendant’s wife; that the defendant was mentally unsound, and incapable of making a contract; and that the plaintiff and one John A. Fowle had conspired together to defraud him of his property. The defendant also filed a declaration in set-off.</p> <p>At the trial in' the Superior Court, before Blodgett, J., it appeared that from April, 1889, to December, 1892, the plaintiff was attorney for the defendant, and was, with Fowle, from April 20, 1889, to January 2, 1890, trustee for the defendant under an assignment for the benefit of the defendant’s creditors. Certain moneys received by the plaintiff from the defendant personally, and in the settlement of his business, were credited.</p> <p>There was evidence that the plaintiff did in fact render legal services for the defendant relating to matters growing out of the settlement of his business; that he acted for the defendant in several suits arising from complications with his wife, with reference to his real estate, but otherwise did nothing in the active settlement of his business affairs ; but Fowle, the co-trustee under the assignment of April 20, 1889, testified that the plaintiff knew and concurred in all that was done, being in constant communication with him, and the defendant testified similarly ; that from said April 20, 1889, to January 2, 1890, funds realized from the sale and collections of the defendant’s assets were in bank in the joint names of the plaintiff and Fowle, as trustees, and the plaintiff jointly, and with Fowle as co-trustee, signed checks against this deposit; and that this was his performance relating to the settlement of the business affairs of the defendant. There was evidence that on said January 2, 1890, all of the assets of the defendant had been realized upon except two or three claims against third persons, all of his creditors had been paid, and that the trust was then closed, but the defendant testified that he had never been informed of any termination of it.</p> <p>No charge was ever made by the plaintiff againt the defendant for services as his trustee, except that contained in the following, which is item 239 in the plaintiff’s account •: “ July 28, 1892. Consultation ■ and advice, correspondence and services in various other matters, including my services as your trustee in assignment for the benefit of your creditors, not heretofore charged, $100.” Among the assets of the defendant’s estate, and included in the assignment, was a claim against one Barrett and Company, who. had gone into insolvency, and had offered in composition to pay ten cents on each dollar of their indebtedness. The defendant’s claim against Barrett consisted of promissory notes made by Barrett, and indorsed and paid by the defendant. One of these notes the defendant proved against Barrett’s estate in insolvency in his own name, and there was evidence tending to prove that the defendant was frequently in attendance upon the insolvency court when the Barrett case was before it. One of the notes was proved in the name of the plaintiff. Upon this offer of composition a discharge was granted to Barrett and Company on July 24,1890,-and on November 17, 1890', the plaintiff appealed therefrom to the Supreme Judicial Court. This court dismissed the appeal. Cooke v. Barrett, 155 Mass. 413. Among the assets of the defendant was a chose in action against one Matthew Robson, who in the lifetime of the defendant’s father had been engaged with him and the defendant in tanning hides and leather. The elder Plaisted, in the name of his son and himself as copartners, had filed a bill in equity against Robson for an accounting; the matter had been referred to a master. At the defendant’s request the plaintiff, in July, 1899, entered his appearance in the suit. After doing so, there was evidence that he performed the services charged in his account, and also tending to show that the defendant had knowledge of all that the plaintiff did, approved it, and promised to pay for it. The defendant produced evidence tending to show that the plaintiff had agreed to conduct this litigation to its end, and rely upon the proceeds, if any, for his pay and the expenses. This the plaintiff denied. The bill was dismissed.</p> <p>There was evidence that the mother of the defendant, as executrix of her husband’s will, was interested in the outcome of this suit, and that other persons who had received an assignment of one half part of the claim alleged to be due from Robson were likewise interested, and that a verdict against Robson would inure to their benefit.</p> <p>Before the date of his assignment to the plaintiff and Fowle, the defendant had owned a house, numbered 1 Taylor Street, in Boston. Through one Kingsbury he had conveyed this property by deed or deeds, which had never been recorded, to his wife. Subsequently, and prior to the assignment to the plaintiff and Fowle, the defendant had obtained possession thereof, and it had been destroyed. One of the results of the litigation with the wife, conducted by the plaintiff for the defendant, was that she, in January, 1890, relinquished all rights in this property to the plaintiff and Fowle, as trustees. The property was subject to a mortgage to one Heald. This mortgage was assigned to one White, who, on September 2, 1892, by advice of the plaintiff, foreclosed, and the property was conveyed to Fowle. The plaintiff testified that this transaction was for the purpose of relieving the property of an incumbrance held by the city of Boston. The defendant testified that he did not understand the purpose and effect of it. The defendant offered to prove foreclosure proceedings and the deed under power contained in the mortgage, services for these proceedings having been charged in the plaintiff’s account annexed.' The plaintiff objected. The judge admitted the evidence, and the plaintiff excepted.</p> <p>The defendant introduced, as tending to show his mental condition, the deposition of one Cutter, a physician, to whom he was taken by Fowle, on April 3,1889, for examination of his physical condition. Cutter deposed that he had made an examination of the defendant; that he had had a large and varied experience in mental diseases and conditions extending over thirty-five years; that he had been a qualified examiner of New York for two years, and during his experience he had probably examined upwards of a hundred persons, not including hospital cases. The plaintiff objected to the introduction of the deposition, and particularly to the answers to interrogatories six, eight, and nine. The deposition was admitted, and the plaintiff excepted.</p> <p>Interrogatories six and eight, and the answers thereto, are as follows: ilQ. 6. Did you examine Mr. Plaisted, when you first saw him, with reference to his mental condition, and if so, what did you find it to be? A. I did, quite thoroughly, though his mental weakness was very apparent. He was brought to me by Mr. Fowle, as I have said, as one would bring a child, and appeared to be under the influence of Mr. Fowle as a child might be. This weakness was very clear. He was very much depressed. He had no confidence in himself whatever, but wanted to rely upon others and to confide in others. This inclination was very manifest, both from his action and his talk. He was fickle, and seeking guidance and influence, and with a strong inclination to lean on some one. He talked much of his family wrongs, and wanted to confide in some one as to them, and to be helped out of them. In every way, in his personal appearance, his face, in his actions and in his words, this mental weakness, lack of independence, and inclination to confide in and lean on others "was unmistakable. — Q. 8. What would you say as- to Mr. Plaisted’s ability to manage business affairs, as we generally understand business, either for himself or others, — to carry on a trade, or to buy and sell real estate, for instance, — and if you consider his business ability good or bad, why so? A. I should say he was at that time utterly unfit to manage a regular business of any kind, if I understand your question as involving reasonably large affairs and personal responsibility. I would not consider a child competent to carry on business, or to buy and sell land; and I have said Mr. Plaisted was, mentally, like a child. He was weak-minded, vacillating, had no sound, permanent judgment. He wanted protection and guidance, and to have the opinion of some one else, and to have some one else to lean on. When a person is brought to me by some one else, as Mr. Plaisted was, I judge he is incompetent to manage his own affairs, and if his own, surely others’. His mental weakness was such as to' make him unreliable and of poor judgment.”</p> <p>In interrogatory nine the witness was asked : “ Did Mr. Fowle make any statement to you as to Mr. Plaisted’s mental competence to manage his own affairs, and if so, what? ” To this question the plaintiff objected. The objection was overruled, the judge stating that the question was admissible for the purpose of contradicting Fowle, who had previously been asked, upon cross-examination, as to the mental condition of the defendant. To this admission the plaintiff excepted. The witness answered: “ Mr. Fowle said he was not competent to manage his own business, and that, as he had a good deal of money, he felt that he wanted to help him along, and so took him under his own protection.”</p> <p>The plaintiff asked the judge to instruct the jury: 1. If the jury find that the plaintiff accepted the trust created by the assignment of April 20,1889, and acted under it, that acceptanee and action does not preclude him from acting as attorney for the defendant in matters pertaining to the assignment, and receiving from the defendant, personally, reasonable compensation therefor. 2. Notwithstanding the assignment' to the plaintiff and John A. Fowle, the defendant still had a right to a voice in the management of his affairs, the collection of his assets, and the settlement of his debts. ' If in such management he acted independently of his assignees, and caused action to be taken by the plaintiff as an attorney, the plaintiff may recover from him the sums of money paid out by him in pursuance of such action, and a reasonable compensation for his services therein. 3. Notwithstanding the recital in the deed of April 20, 1889, that the expenses of the settlement of tli(e defendant’s business should be deducted from the assets collected, this plaintiff may have his election, either to recover from the assignees the value of his services rendered in such settlement, or he may recover from the defendant such sums as his services are worth. 4. If the possession of the property covered by the deed of April 20, 1889, was retained by the defendant, sold by him, and the proceeds diverted by him to his own or another’s use, he is personally liable to this plaintiff for services rendered and expenditures made by the plaintiff at the request of the defendant in reference thereto, notwithstanding that this deed provides that payment of the expenses and charges shall be made out of the proceeds of the trust property. 5. If the defendant, after executing the trust deed, kept possession and disposed of the property covered by the assignment of April 20, spending and investing the proceeds for his own use and benefit, he cannot avoid the plaintiff’s claim for services and expenditures rendered and paid at the defendant’s request, although the terms of that conveyance may have otherwise provided. 6. If the jury shall find that the sums mentioned in the defendant’s declaration in set-off, or any of them, were received by the plaintiff as a part of the defendant’s assets, passing by.virtue of the assignment of April 20, 1889, I rule, as a matter of law, that they were received by the plaintiff; together with John A. Fowlethat they are not a proper subject of set-off in this action, and the verdict of the jury as to such items, or any of them so received, must be for the plaintiff. 7. The termination of a trust created by writing need not be in writing. It may be determined by agreement or consent, or by the acts of the parties in interest. 8. If the jury shall find that the trust relations created by the deed of April 20, 1889, terminated between the plaintiff and defendant by consent, or otherwise, on or about January 2, 1890, or at any time, and the defendant thereafter requested the plaintiff to render service or expend money, the defendant is liable to the plaintiff, notwithstanding such services and expenditures related to property claims or assets covered by the assignment. 9. If the jury shall find that one of the notes in the Barrett insolvency matter was proved by the defendant as his own property and in his own name, he thereby became personally interested in the result of the insolvency litigation, and is liable to the plaintiff for all services done and expenditures made by the plaintiff relating to this note. The verdict of the jury upon such services and expenditures on said note so found to have been proved must be for the plaintiff, even if this note was originally included in the assets covered by the assignment of April 20. 11. If the jury shall find that the services for the Hobson suit were rendered in whole or in part for the real benefit of others in connection with the defendant, yet if he promised to pay the plaintiff for them he must be charged for what they were reasonably worth. 13. The rule to the auditor required him, among other things, to “ state the account between the parties.” ,/As his report is not in compliance with this order, it is not prima facie evidence of the right of recovery in the party in whose favor it is made.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Petition to the assessors of the city of Cambridge for the abutment of certain taxes assessed to the executors of the estate of Alfred F. Washburn upon certain personal property, and an appeal from their decision to the Superior Court. The case was submitted to that court, and, after judgment for the petitioners, to this court, on appeal, upon agreed facts, in substance as follows.

<p>Petition for the assessment of damages under St. 1896, c. 321, for the taking of land of the respondents on April 24, 1897, and for damage to other land of theirs, caused' by the widening and change of grade of Lagrange Street, a public way in that part of Boston formerly known as West Roxbury. The land actually taken was a strip of vacant land about ten feet wide and about three hundred and twenty-one feet long, lying on the northerly side of Lagrange Street.</p> <p>At the trial .in the Superior Court, before Blodgett, J., the respondents introduced in evidence, without objection, the testimony of one Park of a sale made to him in August, 1895, by one Nichols, of a parcel of land with a dwelling-house and stable thereon situated on the southerly side of Lagrange Street, directly opposite the land taken. The area of the land sold was 8,967 square feet, and the price received for the property was 14,500. It did not appear that either, the seller or the purchaser placed a separate value upon either the land or the buildings at the time of the sale, or that at the time any apportionment of the purchase price between the land and buildings was made by either of them. Park was still the owner of the property; and the counsel for the respondents asked him what was the fair value of the buildings at the time of the sale, but the petitioner objected, and the judge excluded the evidence.</p> <p>One Spear, called by the respondents, testified that he lived near their land; that his occupation was that of a carpenter, builder, and contractor; that he had followed that occupation for forty-five years; that he knew the house bought by Park; that he knew when it was built, he having worked on it as an apprentice; that he knew about when the stable was built; and that he was well acquainted with the character and condition of the house and stable at the time of the purchase by Park. He was asked by the counsel for the respondents, “ At the time of the sale to Park in 1895, in August, what in your judgment was the fair value of the house and stable?” The counsel for petitioner objected that the evidence was incompetent, but made no objection to the qualification of the witness. The judge decided that the question might be asked, and the petitioner excepted. Counsel for the petitioner said: “We object to that question for that purpose, and we suggest the value in connection with the property, the foundation, and everything that is there. I think he ought to understand that, and not what it was worth to be moved off.” The judge observed, “Yes, I think he ought to understand that it is not a question of what it would be worth to be moved off.” The counsel for the respondents then said, “ I assumed that, and did not put in the words ‘ market value,’ for that reason,” and then asked the witness, “ What, in your judgment, was the fair value of the house and stable as they were there on the land at the time of the sale, to be used with the land?” The witness answered: “ To be used with the land ? SI,500.”</p> <p>The jury returned a verdict for the respondents in the sum of $8,874.76; and the petitioner alleged exceptions.</p>

<p>Appeal from a decree of the Probate Court allowing the report of commissioners upon the insolvent estate of William H. Perkins, deceased, and from the disallowance of the claim of the appellant presented to the commissioners.</p> <p>The case was submitted to this court, and after a finding for the appellees, by Barker, J., to the full bench on appeal, upon agreed facts, in substance as follows.</p> <p>On July 20,1896, Perkins made a promissory note for $5,000, and had it discounted at the Union Market Rational Bank of Watertown, it having been indorsed by Thomas P. Emerson, the appellant. Perkins, prior to and in consideration of such indorsement, and as collateral security therefor, gave Emerson a second mortgage on certain real estate in Watertown, and a mortgage note dated July 17, 1896, for $5,000. The first mortgage thereon, held by the Waltham Savings Bank, was subsequently foreclosed and the property under it sold, so that the collateral security to the mortgage note held by Emerson was rendered of no value, and he had no collateral which he was obliged to surrender or offer to surrender before offer of proof of claim. It was agreed that the collateral security should apply to renewals of the note, and the original note discounted by the Union Market National Bank of Watertown when it fell due on November 23,1896, was taken up with a new note for the same amount with the same maker and indorser. This second note when it fell due was taken up with a new note for the same amount with the same maker and indorser. This third note was paid before maturity," the money to pay it being obtained by the discount of still another note for $5,000, with the same maker and indorser, at the Newton National Bank in Newton. Before this last note fell due Perkins died, and the note had not been paid at the time of the hearing before the commissioners, though Emerson had waived demand and notice thereon, and had pledged collateral of his own upon it, at the request of the Newton National Bank. This last note was offered by the Newton National Bank for proof before the commissioners, and by them allowed for its full amount. Emerson testified before the commissioners that the mortgage note of July 17, 1896, was held by him as collateral for his indorsement, as herein stated.</p>

Tort, under the employers’ liability act, St. 1887, c. 270, as amended by St. 1892, c. 260, to recover for the death of the plaintiff’s intestate, Richard Welch, and for conscious suffering consequent upon injuries received while in the employ of the defendant. Trial in the Superior Court, before Lilley, J., who allowed a bill of exceptions, in substance as follows.

Four actions of tort, for personal injuries. Trial in the Superior Court, before Cfaskill, J., who, at the conclusion of the evidence for the plaintiffs, at the request of the defendants, directed the jury to return verdicts in the four cases for the defendants ; and the plaintiffs alleged exceptions, which appear in the opinion.

<p>Eminent Domain — Rights of Water Company and Railroad in Waters of Pond and River— Specific Performance — Injunction.</p> <p>The Framingham Water Company has no right under the St. of 1884, c. 271, incorporating it, and by the taking, as against the Old Colony Railroad Company, to all the waters of Farm Pond and Sudbury River within certain limits and to determine the question of necessity, but only has the right to so much of them as is necessary for the purposes specified in § 1 of the statute.</p> <p>The Old Colony Railroad Company has the right to pump water from Farm Pond for the necessary use of its railroad, so far as that use does not interfere with the use of the same by'the Framingham Water Company for supplying the town of Framingham with water under the St. of 1884, c. 271. Whether that company would have the right to use the water so as to interfere with the corporate purposes of the railroad company, qucere.</p> <p>Two bills in equity were brought, one by a water company against a railroad company for an injunction to restrain it from using any of the waters of a certain pond, and the other by the railroad company against the water company to compel it to specifically perform its agreement as to supplying the railroad company with water from the pond. In the first case this ?curt decided that the railroad company had the right to pump water from the pond for its own use. In the second case the railroad company did not contend that if it had the right so to pump water it could maintain the bill for specific performance. Held, that there was no occasion, by the admission of the railroad company, to consider the matter of specific performance further.</p> <p>Two bills in equity were brought, one by a water company against a railroad company for an injunction to restrain it from using any of the waters of a certain pond, and the other by the railroad company against the water company to compel it to specifically perform its agreement as to supplying the railroad company with water from the pond, and to restrain it from prosecuting two actions at law already brought against the railroad company, one to recover for all the water which the water company had furnished the railroad company from its pumping station, and the other alleging that the railroad company had taken water from the pond without its consent, claiming damages. Held, at the trial of the second bill in equity, that as to the two actions at law, the first depended upon whether the contract was made, and this could more properly be determined in the first action; that the second action at law would seem to be governed by what this court had decided in the first bill in equity as to the right of the railroad company to pump water from the pond for the necessary use of its railroad; and that an inj unction should not issue to restrain the further prosecution of that action, if the water company should see fit to continue to go on with it.</p>

<p>Personal Injuries — Bicycle — Highway.</p> <p>A bicycle is not a carriage within the meaning of that term in the Pub. Sts. c. 52, § 1.</p>

<p> Continuing Guaranty. </p> <p>On April 29 the plaintiff corporation wrote to the defendant, who was the treasurer of the D. Co., “If he [the defendant] will give us his written guarantee to pay hills of one month upon the 15th of succeeding month, -if not already paid by the company [D. Co.], we will accept it and extend credit to extent of §200.” On May 1 the defendant answered, “As you have requested me to have me guarantee the payment of the D. Co.’s account by the middle of the month, I hereby agree to pay the current month’s account of the D. Co. on the 15th of the following month, if not paid by them before.” Several months later the plaintiff corporation having notified the defendant that the D. Co. had not responded, and having called upon the defendant to make good his guaranty,’ he did not deny, but in substance admitted, his liability. Held, that the guaranty was a continuing one.</p>

<p>Contract, by the widow of William M. Moore, to recover the sum of $5,000, by the terms of a certificate or policy of insurance issued by the defendant' company to Moore, and- providing for the payment of the above named sum to the plaintiff as beneficiary named therein in case of the death of Moore by such accident and under such terms and conditions as in said certificate or policy were fully set forth.</p> <p>The conditions of the certificate or policy material to the deter-ruination of the questions involved are as follows:</p> <p>1. Upon the question of notice the following conditions are set out upon the back of said certificate or policy.</p> <p>“ Fifth. Written notice shall be given the said company at Boston, Mass., within ten days of the date of the accident and injury, for which claim of indemnity or benefit is made, with full particulars thereof, including a statement of the time, place and cause of the accident, the nature of the injury and the full name and address of the insured and beneficiary, and unless such notice and statement is received as aforesaid, all claim to indemnity or benefit under this certificate shall be forfeited to the company.</p> <p>“ Sixth. This certificate will not entitle the beneficiary herein named or any party in interest to death benefits unless death results from the accident within ninety days from the date of the accident, of which accident the company shall have had notice within the ten days mentioned of the happening thereof. . . .</p> <p>“ Fourteenth. The provisions and conditions aforesaid, and a strict compliance therewith during the continuance of this contract, are conditions precedent to the insurance hereof and to its validity and enforcement, and no waiver shall be claimed by reason of the acts of any person, unless such acts shall be specially authorized in writing over the signature of the secretary of this company.”</p> <p>2. Upon the question of the character of the injuries for which indemnity was payable under the terms and conditions of the certificate, the following are the material portions of said certificate as set forth in the body thereof.</p> <p>“ 1- The sum of $25 per week for a period not exceeding fifty-two consecutive weeks as indemnity for loss of time resulting from bodily injury so effected during the life of this certificate through external, violent and accidental means which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation above stated.</p> <p>“2. Or, if such injury alone shall not cause total disability as described in Provision one (1), but shall immediately and continuously disable and prevent the insured from performing one or more important duty or duties pertaining to his occupation, the company will pay him, during continuance of such disability for not exceeding sixteen consecutive weeks an amount to be determined by the company, based upon the nature and severity of the injuries and consequent effects upon the occupation of the insured, the maximum of such amount not to exceed fifty per cent of the sum named in Provision one (1), and the minimum not less than ten per cent of such sum. . . .</p> <p>“ 5. And the said company agree to pay to Emma J. Moore, wife, if living, if not, to the executors or administrators of said member, in trust, however, for and to be forthwith paid over to his heirs at law the sum of $5,000, if the death of the certificate holder shall result from such injuries alone within ninety days from the date of said accident.”</p> <p>At the trial in the Superior Court, before Sheldon, J., the defendant requested a ruling that, upon the evidence, proper written notice of the accident of March 31, 1898, was not given to the defendant within the time limited by the certificate or policy, and that the defendant had not waived such notice, and therefore the plaintiff cannot recover.</p> <p>The judge declined so to rule, and instructed the jury, that proper notice was not given to the defendant, but that there was evidence upon which they might find as a question of fact whether or not said requirement was waived by the defendant.</p> <p>The defendant also requested the judge to give the jury the following instruction : “ If you find that the accident of March 31,1898, did not, independently of all other causes, immediately and wholly disable said William M. Moore from- transacting any and every kind of business pertaining to his occupation, or immediately and continuously disable and prevent him from performing one or more important duty or duties pertaining to his occupation, then it was not such injury as would entitle thé plaintiff to recover under the certificate in suit, and you must bring in your verdict for the defendant.” The judge refused so to rule; the jury found for the plaintiff, and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for the conscious suffering and death of the plaintiff’s intestate. Trial in the Superior Court, before Gaskill, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion and in a note by the reporter.</p>

<p>Contract fSr the breach of an alleged agreement between the plaintiff and the defendants, copartners under the firm name of M. S. Ayer and Company, by which the defendants were to lease of the plaintiff the basement and the first, fifth, and sixth floors of a building in Boston for a term of years. The answer set up the statute of frauds. At the trial in the Superior Court, before Bishop, J., it appeared that M. S. Ayer, one of the defendants, applied to one Redding, a real estate agent in Boston, employed by the plaintiff, who resided in New York, to lease the premises, and presented to him an offer in writing, as follows:</p> <p>“ Boston, Dec. 21, 1897. Ralph W. Redding, Esq., 7 Water St., Room 407, Boston: In reply to your request for an offer in writing for the rent of a portion of the new brick building, corner Portland & Travers Sts., will say, we will give for the cellar, first floor, fifth floor, sixth floor, on a lease of ten five years (10) (5) — providing a few slight changes such as have been mentioned are made — Six thousand five hundred dollars, $6,500 — per year, payable quarterly. The above offer includes heating each floor in a satisfactory manner and also use of the elevator free of extra charge: rent to commence the first of Mch 1898 and we can commence at once to put premises in shape for occupancy and occupy same when ready. M. S. Ayer & Co.</p> <p>“ P. S. We to have the top of the building for our signs exclusively, also the lower part occupied by us. M. S. Ayer & Co.”</p> <p>“ Dec. 22-97. Our offer now is as above only on a lease of five years, four of which is at the rate of sixty-five hundred per year & one year at seven thousand per year. M. S. Ayer & Co.”</p> <p>Redding, called by the plaintiff, testified that, one or two days after the receipt of this offer, he had a conversation with M. S. Ayer by telephone, and told him “that the plaintiff was willing to accept his offer, only that he wanted the rent payable monthly, in advance, instead of quarterly as his offer mentioned”; and that Ayer said “ he had never paid rent that way, and would not do it even if that was the New York custom”; that “finally, after considerable conversation, Mr. Ayer saidgthat, by way of compromise, he would make it the 15th of each month, and explained himself by saying that the first payment should be on the 15th of March for the month of March, and each month following, in the middle of the month ”; that the witness told him that he would communicate with the plaintiff and find out if he accepted the compromise, and then left Ayer at the telephone; that the witness next saw Ayer in regard to the transaction on December 27, at the office of the witness; that Ayer entered the office about four o’clock in the afternoon, and asked the witness if he had heard from the plaintiff; that the witness said, “Yes. Your offer is accepted. I was going to write you; I will do so to-night ”; that the witness wrote and mailed the following letter the same night, which it was admitted the defendants received:</p> <p>“ Boston, December 27,1897. Messrs. M. S. Ayer & Co., 209 & 211 State Street, Boston. Gentlemen : Your offer of December 21st, 1897, with supplementary amendment of December 22d, 1897, and amendment by telephone message of December 24th, 1897, whereby the rent shall be paid in semi-advance monthly instalments, the first payment to be made March 15th, 1898, all in reference to taking a lease of a portion of a building situate on the southeast corner of Portland and Travers Streets, Boston, Mass., is hereby accepted. I wish to have our verbal agreement, which you desired should be separate from the lease, wherein you are to supply the labor for running the heating plant, and oiling the elevator guides and motor, understood. Yours, Ralph W. Redding, Agent for Oscar E. A. Wiessner.”</p> <p>M. S. Ayer, called by the defendants, testified that in the talk over the telephone Redding tried to get him to agree to pay the rent in advance, or in the middle of the month, but that he refused to do so, and told Redding that he had never paid rent in advance in all his business life and was not going to begin then, and told Redding to submit the proposition as it stood, meaning the written proposition to the plaintiff, and, if possible, get an answer by telegraph; that on the 27th when he (Ayer) called upon Redding he asked, “ Have you heard from New York?” that Redding said he had, and said, “ Your proposition is accepted,” to which he replied, “ I am glad of it,” and told him to send the lease at once for execution, and turned to go out, when Redding followed him out of the door and told him, “ In my offer I said to Mr. Wiessner that you would do the firing and take care of the elevator; it will only require a little time ”; and that he (Ayer) said, “ Who authorized you to say so ? Did I make an offer of that kind, that you should inject into my offer, or our offer, that we should run the elevator, take care of the elevator, do the firing or anything of that kind ? I will say to you I never made any offer of that kind. I will now withdraw my offer for the building; I will not have anything more to do with the building, or any other building that you have anything to do with.”</p> <p>The defendants asked the court to rule that the plaintiff could not maintain the action upon the foregoing evidence.</p> <p>The judge ruled that if the transaction took place as described by Redding, it constituted the acceptance of a proposition partly in writing and partly oral; if it took place as stated by Ayer, it was the acceptance of a proposition not made by him in full, and that in either case there was no sufficient memorandum in writing of the contract sued upon to bind the defendants under the statute of frauds, and directed a verdict for the defendants ; and the plaintiff alleged exceptions.</p>

<p>Personal Injuries — Collision of Carriage and Bicycle — Negligence — Due Care — Instructions.</p> <p>At the trial of an action for personal injuries, there was testimony tending to show that the plaintiff came down C. Street on the right hand side towards W. Street, and that he was riding slowly and ringing the bell of his bicycle, and that before crossing W. Street lie looked northerly and saw the hack driven by the defendant’s servant, and “ tried to make a sharp turn to get out of the way of the carriage, but he (meaning evidently the driver) made a turn quickly, then the pole caught me and knocked me off my bicycle and threw me underneath the horses’ feet.” The plaintiff had no lamp on his bicycle, and O. Street was dark but W. Street was light. There was testimony for the defendant that the plaintiff was riding very fast, and that he was on the left hand side of C. Street. There was also testimony for the plaintiff that the defendant’s servant was driving very fast, and, as tending to corroborate that, that the hack went forty or fifty feet after the collision before it stopped, and that after the driver had dismounted the passenger told him to get on and go where he was going, that he wanted to get there in a hurry. The driver also testified on cross-examination that if the plaintiff was on the right hand side of O. Street and riding slowly, he would have seen him if he had looked. Held, that the questions of the due care of the plaintiff and of the negligence of the defendant’s driver were for the jury.</p> <p>In an action for personal injuries a ruling requested by the defendant “ that the whole evidence is as consistent with plaintiff’s want of due care as with his exercise of due care, and he is not entitled to recover,” is rightly refused, whether it was so or not being a question of fact, under proper instructions, for the jury.</p>

<p>Bill in equity, by an administrator, against the widow of an intestate, praying that she be ordered to execute and deliver to the plaintiff a release and discharge of a mortgage. Hearing in the Superior Court, before IAlley, J., who entered a decree dismissing the bill with costs; and the plaintiff appealed. He also filed a motion, which was denied; and he appealed. The hature of the bill and of the motion appears in the opinion.</p>

<p>Tobt, for the conversion of certain horses and carriages, with a count in contract for the alleged breach of an agreement. After the former decision, reported 174 Mass. 68, the case was tried in the Superior Court, before Hopkins, J., who allowed a bill of exceptions, in substance as follows.</p> <p>There was evidence that the plaintiff was the owner of certain horses and carriages used in conveying passengers in the city of Boston ; that the defendant was a livery-stable keeper, at whose stable the plaintiff kept her horses and carriages; and that on October 9, 1897, the plaintiff was indebted to the defendant in the sum of $439.99 for board and care of her horses.</p> <p>On October 10, 1897, the defendant asserted a claim of statutory lien upon the horses in question, and refused to allow them to be taken from the stable. On October 11, the parties signed an instrument, of which the following is a copy: “Boston, October 9,1897. I relinquish to S. F. Johnson all claim on the three horses (3), one Kimball landau, and one Bennett coupé, now in his possession, until his claim of $439.99 for board and care is paid in full, which I agree to do by weekly payments of $15. The board from this (October 9) date to be paid weekly. E. F. Radigan, Julia A. Radigan.”</p> <p>The plaintiff testified that after she had signed the above paper the defendant told her not to worry, that she had seven months to pay the bill; that she could “ have the horses and continue just the same,” and he would do all he could to help her; that if he needed more money, he would ask her for it, and she said that if she could let him have it she would give it to him; that he then told her husband to get his horses and go to work; that her husband did so, and that beginning with that evening there was no change in her method of using the horses, but when she wanted them she took them, just the same as ever.</p> <p>The defendant, on cross-examination, testified that, after the paper of October 9 was signed, the plaintiff went on in her business in the usual way; and that he did not interfere with or exercise any control over these horses and carriages until he detained them again on January 21, 1898, as hereinafter stated.</p> <p>The defendant further testified, on re-direct examination, that the horses and carriages were brought back to his stable every night; that his understanding was that, under that paper, he could hold the horses and carriages until his bill was paid ; and that he was still holding them under that paper.</p> <p>The plaintiff continued to keep the horses and carriages in question at the defendant’s stable, and the payments of $15 a week were treated separately from the newly accruing account for board of the horses. The plaintiff from time to time paid money to the defendant, and it was agreed that he was allowed to apply these payments as he chose either to the old or to the new board. No bills were rendered on account of the old board after October 11, but bills were regularly rendered for the new board. The first payment applied upon the old board was made on October 15,1897, amounting to $15; the second, on October 25, of the same amount; the third, on October 29, of $100; the fourth, on November 10, of $15; and the fifth, on December 16, of $25, making a total of $170. The receipts for these payments read, “ Received-■ dollars for use of horses and carriages,” excepting the last two, -which read, “ On account.”</p> <p>The plaintiff further testified that she had never paid the defendant the whole amount of the bill of October 9, 1897. After October 11, the plaintiff paid the bills for the new board from time to time; but after a while, payment on that account became overdue, until, on January 15, 1898, the sum so overdue amounted to $128.</p> <p>On January 21, 1898, the payments of $15 a week on account of the old board were also behind, the above named sum of $170 only having been paid, and on that day the defendant refused to allow the property mentioned in the instrument of October 9 to be taken from his stable, and the plaintiff has never had possession of any of the property since; but the defendant testified that it has since been in his possession, and that he was holding it under the agreement and had never sold the same, either under a claim of pledge or of a stable-keeper’s lien.</p> <p>The plaintiff testified that she got $100, and sent it to the defendant on February 5, 1898, to pay the board. It further appeared that upon receiving this sum the defendant instead of applying it to the new board, gave the plaintiff’s husband a receipt for it upon account, using the same sort of receipt blank that he had used in all cases where he had applied payments to the old board.</p> <p>On re-direct examination, the plaintiff testified as to the payments made by her as follows: “ Q. Will you explain what you mean when you say you were not behind? A. After I had signed that paper the defendant came to me and asked me for a hundred dollars ; I gave it to him. He said he would not push me weekly, as I had never paid a bill before weekly; my bills were always paid before monthly.”</p> <p>Adding the payment of $100, made on February 5, to $170, then already paid on the old board, made the amount of $15 per week for eighteen weeks, and thus applied paid the old board account to and including February 12, 1898.</p> <p>Edward F. Radigan, husband of the plaintiff, testified that after the paper of October 9 had been signed and delivered to the defendant, the latter said to him that he could go ahead and take the carriages out and go on with the business; that thereafter he did take out the horses and carriages and continued so to do until January 21 following, when they were stopped again; that he did nothing about it until a week or so afterwards, when the defendant called upon him, and the witness said that he was trying to raise some money and would see the defendant as soon as he got it, to which the defendant replied, “ Very well, every little helps;” that subsequently, on February 5, he received $100 from his wife and took it to the defendant on the day following the conversation referred to and gave it to the defendant, telling him to apply it on account; and that, after the defendant had taken the money and given a receipt for it on account, the witness asked him if he could take out one of the teams, and the defendant replied, “ No, you can’t have any carriage until that board bill is paid, and I want that paid, and then you can take him out of here and take him where you like.”</p> <p>Eadigan testified further that he was present at an interview which took place at the office of the defendant’s attorney on February 11; that there were present the attorneys for both parties, Mr. Davis, an attorney, and the defendant; that the parties there figured what was due on the board bill; that the defendant was paid just exactly what was agreed to be due on account of the new board at that time and a day or two in advance ; and that with reference to the $270 which had been paid on account of the $15 per week instalments on the old board, the defendant’s attorney had said, in answer to an inquiry whether or not all payments due under the agreement of October 9 had been paid, “ Well, whether or not all the payments due have been made is a matter of computation.”</p> <p>In regard to what transpired at this interview, after that answer, the witness further testified that he remembered that the plaintiff’s attorney said, “ Now, I understand we can take the carriages,” and “ they said we could n’t; they claimed to own them ; ” that he remembered the words of the defendant’s attorney were, “ Furthermore, we now notify you that we own these carriages and horses ” ; and that the defendant was then present, and his attorney turned to him and said, “ You understand, Mr. Johnson, that you refuse to let Mr. Eadigan have the three horses and two carriages.”</p> <p>On cross-examination, the witness testified, among other things, as follows:</p> <p>“ Q. Now, do you remember at my office that Mr. Noble (the plaintiff’s attorney), said, ‘I understand that Mrs. Radigan has permission to take all her property excepting what is mentioned in the paper that we call the mortgage,’ and that I said, ‘ You have a right to take everything but the three horses, landau, and coupé, and we want you to take them at once, although of course you have a right to leave them here to-morrow ’ ? A. Yes, sir. — Q. Now, do you remember Mr. Noble saying, ‘ Now, we want to know whether or not you claim anything to be due under your paper of October 9,’ and that I said, ‘ We claim that the sum of $169.99, that is, the whole balance, is due us, and is due us to-day ’ ? A. Yes, sir.”</p> <p>Arthur S. Davis, a witness called by the plaintiff, testified that he was an attorney at law, associated with the plaintiff’s attorney in practice, and that he had been requested on February 11 to go to the office of Mr. Russell, the defendant’s attorney, in relation to this case, and did so. As to what there took place, he testified that, upon the plaintiff’s attorney asking Mr. Russell if there was any doubt about all the amounts that were due under the agreement of October 9 having been paid, Mr. Russell replied that $270 had been paid under that, but the payments had not been regularly made; that the plaintiff’s attorney then called his attention to the fact that there were just eighteen weeks between October 9 and February 12, and that $270 made just eighteen payments at $15 a week, and he replied that that amount had been paid, and whether all that was due had been paid was a matter of computation, that the inference was correct if the payments were applied that way; that the matter of the board of the horses since October 9 was then taken up, and the plaintiff’s attorney asked Mr. Russell practically what the amount due was, and he stated that there was $182 due on the previous Saturday, this conversation occurring on a Friday, that on the following day, February 12, there would be due another week’s board at'$18, but that the horses had earned $15 during that week, and he gave the plaintiff credit for that $15, leaving $3 to be added to the $182, making $185 due for board up to and including February 12; that the plaintiff’s attorney then took out a package of money, saying to Mr. Russell that it contained $185, and that he paid it entirely on the new board, that is, the debt due under the agreement of October 9, and handed the money to him, which he counted and acknowledged to be $185; that the plaintiff’s attorney then said, “ Now, we understand that Mrs. Radigan has a right to take out all her property, and that it is to be taken out under that agreement of October 9, just as it has been taken out ever since the dealings of the parties began under it ” ; that Mr. Russell said, “ That is, you want to take them when and as you please ” ; that the plaintiff’s attorney replied, “ No,” reiterating the statement that it was to be taken out only for use in the ordinary course of business, and as it had always been done under the agreement of October 9 ; that Mr. Russell then said, “We decline to let you take them at all,” and, “ furthermore, we claim to own this property ” ; that the plaintiff’s attorney then asked him, “ If that is so, how is it that you are charging us board?” and Mr. Russell replied, “ Well, no matter what I have said, we claim to own the property ; we shall continue to hold it until it is taken away from us by process of law ”; and that Mr. Russell then turned to the defendant and said, “ You understand, Mr. Johnson, that Mrs. Radigan demands this property of you, and that we refuse to let her have it,” and the defendant said “ Yes.”</p> <p>The defendant requested the judge to rule that on all the evidence the plaintiff was not entitled to recover. The judge so ruled,' and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tort, for personal injuries occasioned to the plaintiff while a passenger on one of the defendant company’s cars. Trial in the Superior Court, before Maynard, J., who allowed a bill of exceptions, in substance as follows. The accident happened while the plaintiff was going home from work on December 27, 1897.

<p>Mandamus — Matter of Discretion— Certificate of Shares held as Collateral — Assignment of Equitable Interest in Shares.</p> <p>The form of the stock certificate is conclusive as to the name in which a vote must be offered.</p> <p>In Pub. Sts. c. 105, § 25, providing that the name of the “ pledger ” of stock held as collateral security shall be set forth in the certificate, and that he shall be responsible as stockholder, “ pledger ” means the general owner of the stock at the date when the certificate is issued.</p> <p>When the statute is complied with, the “ pledger ” is entitled to vote.</p> <p>A certificate of stock running to A., but stating on its face that it is held as collateral for the note of B. for $10,000, issued after B. has sold his rights to C., does not satisfy Pub. Sts. c. 105, § 25. Under such a certificate A. is the stockholder and entitled to vote.</p> <p>It appearing that the equities were against the party having the legal right to vote and claiming an office by virtue of his exercise of the right, a writ of mandamus was refused.</p>

<p>Appear from an order of the Probate Court dismissing a petition by Myra E. Starkey for a revision of the order of distribution of the estate of Daniel P. Kingsley, who died testate in 1886. Hearing before Knowlton, J., who reported the case for the consideration of the full court, such decree to be entered as law and justice might require. The facts appear in the opinion.</p>

<p>Mortgage — Validity of Foreclosure Sale — Failure to advertise Adjournment of Sale — Mistake in stating Amount due on Prior Mortgage — Equity.</p> <p>It is no objection to the validity of a sale of land under a power in a mortgage, after several adjournments, that the adjournments were not advertised, if it does not appear that the failure so to advertise resulted in any sacrifice of the property or involved any injury to the owner of the equity of redemption.</p> <p>The owner of the equity of redemption in land sold under a power in the mortgage, after several adjournments, has no standing, nineteen months after the sale, to object to its validity on the ground that the adjournments were not advertised, if they were all made at the request of the person who represented him and the title in all matters relating to the foreclosure, and who consented to the notices in the form in which they were given, and knew of the sale and made no objection to it.</p> <p>A mistake in an advertisement of a sale of land under a power in a mortgage, in overstating the amount due on a prior mortgage, cannot affect a purchaser in good faith and for a valuable consideration after the foreclosure and without any actual or constructive knowledge of the error.</p>

<p>Will— Codicil— Termination of Trust.</p> <p>A testator provided that the residue of his property should he invested “for the term of ten years after my decease, the income to be equally divided between my sons and grandchildren.” A codicil provided as follows: “ Whereas, by my last will and testament dated the eleventh day of April, 1888, in article 10th I gave to my sons and grandchildren the income of rest and residue of my property, after paying my debts and legacies, to be equally divided between them. I do hereby revoke the said legacy, and instead thereof I give and bequeath the income of the said rest and residue of my property as follows: One eighth of the same to my son J., the other seven eighths to my son A. and my grandchildren to be divided equally between them.” A new legacy was added, and the codicil concluded as follows: “ And I do hereby ratify and confirm my aforesaid will in all respects, except so far as changed or altered by this codicil.” Held, that there was nothing in the codicil that changed the nature of the trust or the term of its continuance, and that the trust terminated at the end of the ten years after the testator’s decease.</p>

<p>Bill ih equity, to establish a resulting trust. The defendants set up a plea in bar, the nature of which appears in the opinion; and the plaintiff filed a motion to set aside the plea on the ground that the same was insufficient to meet the allegations of the plaintiff’s bill. Hearing before Fessenden, J., who allowed the plaintiff’s motion, ordered that the plea be set aside as insufficient, and reported the case for the determination of this court, such decree to be entered as law and justice require. The facts appear in the opinion.</p>

<p>Will— Waiver iy Widow — Residue in Trust — Acceleration — Disappointed Legatees — Sequestration of Income.</p> <p>A testator gave by will the residue of his estate, in trust, the income of one half to be paid to his son 0., and the income of the other half “to my wife, or they [the trustees] shall apply the income and interest as they may judge best to the support and maintenance of my wife and children by her begotten, till there is no child surviving under twenty-one years of age, or till all shall have died before arriving at the age of twenty-one years. After they shall have arrived at twenty-one years of age, one half of the income shall be paid to my wife, during her lifetime. And tlie other half (and the whole, in case my wife shall have deceased) shall be applied to the support and maintenance of the children mentioned in this part of my will and the whole income at the death of my wife.” The testator was twice married, and left as his only issue two sons, 0. by his first wife, and H., a minor of eighteen, by his second and surviving wife, who waived the provisions of the will. Held, that before H. became of age the income of one half of the residue being payable to the widow and H. jointly became, under the ‘doctrine of Plympton v. Plympton, 6 Allen, 178, payable to H. alone, and that after H. became of age the income payable to the widow was sequestered to compensate the disappointed legatees O. and H., and was payable to them severally in the ratio in which they were respectively disappointed.</p>

<p>Action for Money Fraudulently obtained — Election as to Mode of Procedure — Proof in Insolvency of Claim created by Fraud — Law and Fact — Waiver — Promissory Note — Evidence as to Undisclosed Intention.</p> <p>In this case, which was an action to recover money fraudulently converted by the defendant to his own use, it having been intrusted to him for the purchase of certain shares of stock, it cannot be fairly held that the acceptance of a certain sum of money, it being the equivalent of the dividend then due upon the shares, sent by the defendant in a letter, and of certain similar subsequent instalments, and the acceptance of two agreements signed by the defendant, one whereby he promised to pay the plaintiff the amount due with interest, and the other whereby he agreed to deliver to the plaintiff or his legal representatives the shares of stock in question, on condition that for each share so delivered a certain sum should be indorsed on a note of even date, the plaintiff not being compelled to accept the stock but having the right to demand payment in money, were an election by the plaintiff to hold the defendant liable to make restitution by transferring to the plaintiff the shares, with the dividends thereon, until the stock should be handed to him, and to relinquish his right to demand from the defendant the amount due, with interest, until repaid.</p> <p>By proving in insolvency proceedings a claim created by fraud, the creditor does not lose his right to sue the insolvent under Pub. Sts. c. 157, § 84, and even if his testimony is taken literally to mean that, in making his proof in insolvency, he went on a note and not on the fraud, he is not thereby, as matter of law, to be taken to have waived the fraud.</p> <p>On the issue, in an action to recover money fraudulently converted by the defendant to his own use, whether there was an agreement between the plaintiff and the defendant that certain promises of the defendant were taken in satisfaction of the plaintiff’s claim against the defendant for his fraud, it is not competent to put in evidence the undisclosed intention of the plaintiff not to accept the written promises of the defendant in satisfaction of his original claim.</p>

<p> Termination of Trust at Will of Cestui que trust. </p> <p>An active trust, requiring the exercise of discretion on the part of the trustee, is not to be terminated at the will of the cestui que trust.</p>

<p>Bill in equity, by the widow of Louis H. Clark, against a fraternal beneficiary association incorporated under the laws of this Commonwealth and the children of said Louis H. Clark. The prayer was for an injunction restraining the society from paying out the benefit fund until it might be determined to whom it was payable, or that it should pay the same into court to await its further order ; that it might be decreed that the death benefit should be made payable to the "plaintiff, or that the society or said other defendants should repay to her out of the fund the amount of assessments she had paid. The defendants demurred, assigning as ground therefor want of equity. The case was reserved by Lathrop, J. for the consideration of the full court upon the bill and the demurrers thereto. If the demurrers were sustained, the bill was to be dismissed ; otherwise it was to stand for hearing. The facts appear in the opinion.</p>

<p>Petition for a writ of mandamus to the school committee of the town of Deerfield, and to Chester M. Barton, commanding them not to interfere with the petitioner in the performance of his duties as superintendent of schools in the district composed of the towns of Deerfield, Hatfield, and Leverett. Hearing before jKnowlton, J., who reported the case for the consideration of the full court, in substance as follows.</p> <p>The towns of Hatfield, Leverett, and Deerfield united for the purpose of employing a superintendent of schools under the provisions of St. 1898, c. 466. The school committees of the towns of Hatfield and Leverett consisted of three members each, and that of the town of Deerfield of three members until the year 1900, when by vote of the town the committee was increased to nine members.</p> <p>'In accordance with an arrangement duly made by the chairmen, the committees of the several towns met at Deerfield in joint convention on April 7, 1900. At this meeting thirteen members of the joint committee were present, three from Hatfield, three from Leverett, and seven from Deerfield. The convention organized by the choice of a chairman and secretary. For the purpose of equalizing the vote of the committee from Deerfield with the votes of the committees of the other towns, it was agreed without objection that the vote of each member present from Deerfield should count for a three-sevenths vote, giving the seven members from Deerfield together three votes, the same as the three members from each of the other towns, it being known that no other members of the committee from Deerfield could attend the convention on that day.</p> <p>The names of Chester M. Barton and Frank Kennedy were presented as candidates for the office of superintendent of schools for the district. A formal ballot was then taken, and the tellers reported that Barton had received four and five-sevenths votes and Kennedy four and two-sevenths votes. Every member of the convention voted, seven voting for Barton, of whom three were from Hatfield and four from Deerfield, and six voting for Kennedy, of whom three were from Leverett and three from Deerfield.</p> <p>A controversy arose over the question whether a person should be declared elected who had received only a fractional majority, and the chairman declared that there had been no election, and the meeting adjourned until April 21,1900.</p> <p>Barton had been elected and served as superintendent of schools for the district for five consecutive years prior to 1900, and he continued to serve as such superintendent to the time of filing the petition in this case.</p> <p>On April 21, 1900, an adjourned meeting of the convention was held, at which fourteen members of the several school committees were present, three from Hatfield, three from Leverett, and eight from Deerfield. It was then voted to rescind the vote at the previous meeting whereby the convention voted to elect a superintendent of schools, seven voting in the affirmative and six in the negative.</p> <p>The convention then voted to proceed to the election of a superintendent of schools, and it was agreed unanimously that, in voting, each of the members from Hatfield and Leverett should have three votes, and each of those from Deerfield one vote, making possible twenty-seven votes if all were present. Of the Deerfield members eight only were present, making twenty-six votes in the convention.</p> <p>A formal ballot was taken for superintendent of schools, and the petitioner received twelve votes and Barton eleven votes. The chairman declared the petitioner elected, and no objection was made thereto. Upon this ballot, thirteen votes were cast, seven members of the convention voting for Barton, of whom two were from Hatfield and five from Deerfield, and six voting for the petitioner, of whom three were from Leverett and three from Deerfield, and one member cast a blank ballot.</p> <p>The petitioner was informed of his election as superintendent of schools, and he accepted'the position; and the secretary of the convention subsequently forwarded to him a notification, of his election.</p> <p>On April 26, 1900, the petitioner began the discharge of his duties, but on May 7,1900, he received a notice from the Deer-field committee that they should recognize Barton as superintendent.</p>

<p>Contract, to recover a broker’s commission. Trial in the Superior Court, before Sheldon, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by the fall of brick and mortar from a chimney on the house of the defendants in Taunton upon the plaintiff while she was passing below on the sidewalk. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff; and the defendants alleged exceptions, which appear in the opinion.</p>

Contract, upon a policy of insurance. Writ dated February 10,1897. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows. On and before January 1,1894, the plaintiff was .the owner in fee of a certain parcel of real estate, consisting of land containing thirty-one acres and four rods, with a dwelling-house and barn thereon, in Canton.

<p>Bill in equity, filed in the Superior Court, by the officers and members “ of the voluntary association known as Union 257, Painters and Decorators of America of Springfield, Massachusetts, which Union is affiliated with a national organization of the same name, with headquarters at Lafayette in the State of Indiana,” against the officers and members “ of the voluntary association known as Union 257, Painters and Decorators of America, which Union is affiliated with a national organization of the same name, with headquarters at Baltimore in the State of Maryland,” to restrain the defendants from any acts or the use of any methods tending to prevent the members of the plaintiff association from securing employment or continuing in their employment. Hearing before Dewey, J., who entered the following decree:</p> <p>“ This cause came on to be heard, and was argued by counsel; and thereupon, on consideration thereof, it is ordered, adjudged, and decreed that the defendant association, the defendants, and each and every of them, their committees, agents, and servants, be restrained and strictly enjoined from interfering and from combining, conspiring, or attempting to interfere, with the employment of members of the plaintiffs’ said association, by representing or causing to be represented in express or implied terms, to any employer of said members of plaintiffs’ association, or to any person or persons or corporation who might become employers of any of the plaintiffs, that such employers will suffer or are likely to suffer some loss or trouble in their business for employing or continuing to employ said members of plaintiffs’ said association; or by representing, directly or indirectly, for the purpose of interfering with the employment of members of the plaintiffs’ said association, to any who have contracts or may have contracts for services to be performed by employers of members of plaintiffs’ said association, that such persons will or are likely to suffer some loss or trouble in their business for allowing such employers of members of plaintiffs’ said association (and because they are such employers) to obtain or perform such contracts; or by intimidating, or attempting to intimidate, by threats, direct or indirect, express or implied, of loss or trouble in business, or otherwise, any person or persons or corporation who now are employing or may hereafter employ or desire to employ any of the members of the plaintiffs’ said association; or by attempting by any scheme or conspiracy, among themselves or with others, to annoy, hinder, or interfere with, or prevent any person or persons or corporation from employing or continuing to employ a member or members of plaintiffs’ said association ; or by causing, or attempting to cause, any person to discriminate against any employer of members of plaintiffs’ said association (because he is such employer) in giving or allowing the performance of contracts to or by such employer; and from ¡iny and all acts, or the use of any methods, which by putting or attempting to put any person or persons or corporation in fear of loss or trouble, will tend to hinder, impede, or obstruct members, or any member, of the plaintiffs’ said association from securing employment or continuing in employment. And that the plaintiffs recover their costs, taxed as in an action of law.”</p> <p>The case was reported, at the request of both parties, for the determination of this court. ’ The facts appear in the opinion.</p>

<p>Bill in equity, filed in the Superior Court, by the sisters and next of kin of Herbert H. Ceiley, a member of Menotomy Assembly, a subordinate lodge of the defendant corporation, against that corporation and Joel Barnard, an uncle and next of kin of the wife of Ceiley, and his executor and sole legatee. The prayer was for a decree that the plaintiffs were entitled to the sum due on a benefit certificate for $3,000 issued to Ceiley; that Barnard surrender the certificate and be enjoined from bringing suit thereon ; and that the defendant corporation, upon the surrender of the certificate, pay the plaintiffs the amount due thereunder. A decree was entered for the plaintiffs; and Barnard appealed to this court.</p>

<p>Writ of entry, to recover possession of a certain farm in Natick consisting of about fifty acres of land, with a dwelling-house thereon. The answer was a general denial.</p> <p>The case was submitted to the Superior Court, and, after judgment for the demandants, to this court, on appeal, upon agreed facts, in substance as follows.</p> <p>At the time of his death, in 1887, Collins Morse owned the farm in question, and left a will, the material portion of which is as follows:</p> <p>“ Fifth. I give, devise and bequeath what is not otherwise disposed of by me, all the rest and residue of my estate, to my sister, Louisa M. Rockwood, for and during her natural life, and she is empowered to sell and dispose of so much of my estate as will ensure her a comfortable living, and to that end she is authorized to sell such portion of my real estate by public or private sale, giving good and sufficient deeds therefor, meaning and intending to give her full control of the same, with fui] power to deed to her grantees, their heirs and assigns forever.</p> <p>“ And at her decease, I give and devise the balance of my estate, of whatever name or nature, to the town of Natick, but in trust nevertheless, the income of which is to be used for the preservation of the monument which my executor is hereby authorized to erect at my grave, and for the care and beautifying of my lot in the cemetery. A report of the expenditure shall be made in the annual report of the proceedings of said town.</p> <p>“ That the town shall not expend a greater sum than four per cent per annum, deeming that as large an amount as the town ought to pay.”</p> <p>The testator left as his only heirs at law Louisa M. Rock-wood, a sister, the three children of a deceased sister, and Isaac D. Morse, a brother, who died intestate after the testator and before his sister Louisa, leaving no heirs other than those named herein as heirs of his brother. Louisa M. Rockwood took possession of the farm after the death of her brother Collins, and continued to use and enjoy it until the time of her death, on March 21, 1895. She did not under the power contained in the will sell or convey during her lifetime any part of it, and made no disposition of it, unless such disposition was made by the following clause of her will: “ Tenth. All the rest, residue and remainder of my estate of every kind I give to Mrs. Edwin Gale and Mrs. James W. Morse, both of Natick, share and share alike to them, their heirs and assigns forever.”</p> <p>Theresa H. Morse and Isabella D. Gale, the demandants, who are the legatees just named above, contend that they are entitled to recover the farm as devisees under the will. The town of Natick has been in possession of the farm since the death of Louisa M. Lockwood, and contends that it is entitled to hold the same as devisee under the will of Collins Morse. At no time did Collins Morse own any lot in any cemetery, and he was buried in the lot owned by Louisa M. Lockwood in Dell Park Cemetery in Natick. She provided for the care of the same in her will, but the amount realized by the cemetery thereunder was only $55. This cemetery was at the time of the death of Collins Morse owned by the town of Natick, but at the time of the death of Mrs. Lockwood was owned by a corporation known as Dell Park Cemetery Association, incorporated under a special act of the Legislature in 1890.</p> <p>If the demandants are entitled to recover the whole or any part of the demanded premises, judgment may be entered for such part; otherwise judgment may be entered for the tenant.</p>

<p>Easement — Railroad Crossing — Plea in Bar — Deed — Right to maintain Gates at Crossing.</p> <p>A bill in equity to restrain the obstruction of a right of way over a railroad, and the proceedings thereon, which leave open the question whether the defendant has a right to maintain gates at the crossing, cannot be pleaded in bar of a bill in equity to restrain the maintenance of gates subsequently erected at such crossing.</p> <p>A landowner who has granted a right of way of a definite width cannot narrow that width by building a permanent fence upon it.</p> <p>Upon the facts of this case, which was a suit in equity to restrain the obstruction of a right of way over a railroad, the defendant had no right to maintain gates or bars at the crossing in question.</p>

<p>Personal Injuries— Shut-off Box a Defect in Highway.</p> <p>It seems that a shut-off box in the middle of a sidewalk much used for foot travel, projecting on one side an inch and a quarter above the surrounding gravel, constitutes a defect in the highway.</p>

<p>Contract, to recover the balance due on a deposit made by the defendant’s intestate. At the trial in the Superior Court, without a jury, before Bond, J., the following by-laws of the defendant were put in evidence:</p> <p>Art. 3. The corporation establishes the following by-laws ; and the trustees may at any meeting, at which at least seven of them shall be present, and after due notice of such intention, at a previous meeting, make such further regulations or by-laws, or alterations of those already made, as they may deem necessary; provided that the same may be re-examined and disallowed by the corporation, at their next meeting; and all such regulations, by-laws, and alterations shall be equally binding on all depositors, as those by them subscribed, after the same shall have been duly made known.</p> <p>Art. 14. On making the first deposit the depositor shall be required to subscribe, and thereby signify assent, to the regulations and by-laws of the institution.</p> <p>Art. 18. Dividends may be received either personally, by the order, in writing, of the depositors, or by letter of attorney. Money deposited shall only be drawn out by the depositor, or some person by him legally authorized; but no person shall receive any part of his principal or interest without producing the original boob, that such payments may be entered therein.</p> <p>Art. 19. All deposits shall be" entered in the books of the corporation, and a duplicate shall be given to each depositor, in which the sum paid by him shall be entered, and which shall be his voucher and the evidence of his property in said institution.</p> <p>Art. 21. Money deposited shall only be drawn out by the depositor, or by some person legally authorized ; but no person shall receive any part of .the principal or interest without producing the original book, that such payment may be entered therein. Nor shall he be entitled to withdraw his principal or any part thereof until sixty days after he shall have given notice to the treasurer of his intention to make such withdrawal. The treasurer may, however, at his option, make payment upon any shorter notice.</p> <p>Art. 24. Depositors may receive their dividends either personally or by written order, or by letter of attorney, on production of the book of deposit.</p> <p>Art. 26. As the officers of this institution may be unable to identify every depositor transacting business at the office, the institution will not be responsible for loss sustained, when the depositor has not given notice of his book being lost or stolen, if such book be paid in whole or in part on presentment; provided, however, upon satisfactory proof of the loss or destruction of a book, the investing committee may order the payment of the amount due without the book; provided, also, if they think proper, they may require a bond to indemnify the institution.</p> <p>Art. 30. Upon the death of any depositor, the moneys standing in the name and to the credit of such depositor shall be paid to his legatee or heir at law or legal representative, conformably to the laws of the State ; and if the sum shall be under one hundred dollars, the same shall be paid to the legatee or next of kin, or legal representative, without expense of the probate of any will, or letters of administration; and it is agreed that such payment shall discharge the corporation.</p> <p>Art. 31. On making the first deposit the depositor shall be required to subscribe, and thereby signify his assent, to the regulations and by-laws of the institution.</p> <p>Articles 14, 21, 24, and 26 were amendments adopted in 1876.</p> <p>The defendant requested the judge to rule substantially as follows: 1. That the original contract embraced the conditions in the by-laws of the defendant in force when the contract was made, and that in order to maintain the action the plaintiff must prove compliance with such terms of his intestate’s contract with the defendant as are conditions precedent to a right of action; 2. That in view of Article 18 of the by-laws in force when the contract was made, providing that “no person shall receive any part of his principal or interest without producing the original book, that such payments may be entered therein,” if the plaintiff or his intestate did not before the bringing of the action make a demand upon the defendant for the payment of all or of part of the moneys to the credit of the account with the defendant, and accompany the demand with the presentation of the book of deposit, the action cannot be maintained ; 3. That there was no evidence that the deposit book had ever been presented to the defendant, and a demand made for the moneys due upon account of the same and a refusal by the defendant to comply, and that the plaintiff could not recover; 4. That the evidence was, that at no time before bringing the action had there been a presentation of the book and a demand of payment, and that the plaintiff could not recover; 5. That the plaintiff’s intestate was bound by such further regulations or by-laws, or alterations of those already made, as the trustees of the defendant might deem necessary, and, in conformity with the defendant’s by-laws, make, although made after the intestate entered into his contract with the defendant; 6. That the intestate and the plaintiff were not entitled to withdraw the principal or any part thereof until sixty days after notice given to the defendant’s treasurer of the intention, unless the treasurer should, at his option, make payment upon shorter notice, and there was no evidence that such notice was ever given or that it was waived, and the plaintiff could not maintain his action; 7. That there was no evidence that the defendant had ever received satisfactory proof of the loss or destruction of the deposit book, or that the investing committee had ever ordered payment without the production of the book, or that the defendant had ever been tendered a bond of indemnity, and that therefore the plaintiff could not recover; 8. That the nature of the contract was such that the plaintiff could not maintain the action unless, before bringing the action, a demand was made upon the defendant, and such demand was accompanied by a presentation of the deposit book, or unless satisfactory proof of the loss or destruction of the book was given to the defendant and the investing committee ordered payment without the production of the book, and that there was no evidence of compliance with any such terms, and that the plaintiff could not recover; 9. That upon all the evidence the plaintiff could not maintain his action.</p> <p>The judge made the first and fifth rulings as requested, but refused to make the second, third, fourth, sixth, seventh, eighth, and ninth; and the defendant excepted.</p> <p>The judge made the following special findings: “ I find that the deposits in the defendant bank, May 3 and 6, 1861, were made by James Crosby, of Roxbury, the plaintiff’s intestate; that the pass book relating to the deposits was destroyed by fire in 1867; that the amendments to the by-laws of the defendant, made after such deposits, were not made known to James Crosby or to any one claiming under him; that the conduct of the treasurer of the bank, during the interviews with reference to the withdrawal of the deposit and as to the commencement of this suit, was a waiver of any right of the bank to insist, as a defence to this action, upon any other or further notice of an intention to withdraw said deposit than such as was given of such intention before the commencement of this action.”</p> <p>He then ruled, 1. That the agreement which Crosby signed under Article 31 of the by-laws in existence at the time of the deposit was not a consent to be bound by any amendments to such by-laws except as the amendments were made in pursuance to the power granted in the third article of said by-laws. 2. That no amendment to the by-laws in existence at the time of the deposit could affect the contract between the bank and Crosby, or those claiming under him, until such amendments were duly made known to him or them. 3. That the amended by-laws did not affect the contract between Crosby and the bank, and those claiming under him, as no notice was ever given of such amended by-laws. 4. That the loss or destruction of the pass book did not work a forfeiture of, or destroy the title to, the deposit in the bank; and that such deposit did not thereby become the property of the bank. 5. That it was the intent of Article 18 of the bylaws in force at the time of the deposit by Crosby, that the pass book should be produced when it was possible to do so; that, when the party having the title to the deposit cannot produce the pass book because of its loss or destruction, it is sufficient if he prove -the loss or destruction of the pass' book as the reason why it is not produced, and he is entitled to receive the deposit upon a tender, in a proper case, of a sufficient indemnity to the bank against loss by reason of the payment of the deposit to him. 6. That the plaintiff is entitled to recover in this case the amount standing to the credit of Crosby upon the books of the bank at the date of the writ, under Article 30 of the by-laws in force at the time of the deposit; he having proved that said pass book has been destroyed and that for this reason he is unable to produce it; that as administrator he ought not to be compelled to give a bond of indemnity to said bank as a condition of his recovery in this suit.</p> <p>The defendant excepted to the special findings and rulings. The judge found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Present: Holmes, C. J., Knowlton, Morton, Barker, & Loring, JJV</p> <p>Personal Injuries — Evidence justifying a Finding of Due Care.</p> <p>In an action for personal injuries occasioned to the driver of a covered express wagon and his employee by the collision thereof with an electric car, evidence on which the jury could find that both plaintiffs looked to see if a car was coming when, seated as they were in the wagon, they were fifteen feet from the track; that their view was obstructed until they reached that point; that they saw the car and each thought that it was then one hundred to one hundred and five feet away, and that in fact the car was then about one hundred feet away; that they thought they had ample time to cross the tracks, and for that reason drove across at a walk; and, finally, that the car was being driven at the rate of fifteen to seventeen miles an hour, in place of eight miles an hour as the city ordinance required, authorizes a finding that the plaintiffs thought that the motorman saw them and would look out for them, and that they were in the exercise of due care, whether their estimates were right or not; their estimates, as a matter of fact, being right.</p>

<p>Partnership — Construction of A greement — Equity — Discovery.</p> <p>A partnership, consisting of A., B., and C., which was a continuation of a previous partnership between A. and B., was formed for two years, each partner contributing a certain sum to the capital, and the profits and losses to be shared in certain proportions. The articles of partnership provided that the several contributions to the capital should be paid by the transfer to the new firm of the property belonging to the old firm ; and that if either of the partners should die during the continuance of the partnership, the business might be carried on by the survivors, and the interest of the deceased partner in the property of the firm for all purposes should be taken to he “the balance standing to his credit as of the next preceding annual account taking of the stock, assets, and debts owing to and by the said firm.” An annual account of the stock, assets, and debts of the old firm was taken on the day the new partnership began, showing a balance to the credit of each partner, 'and a portion of these assets was transferred to the new firm. A. died during the first year of the new partnership, and the business of the firm was continued by the other partners as the contributions of A. and B. The contribution to the new partnership made by C. was the amount then due to him as an employee of the old firm. Held, on a bill in equity to obtain A.’s share of the profits upon the basis of the proportional percentage fix'ed by the articles of partnership, that the account taken on the day the new firm was formed was adopted by that firm as its first “ annual account taking,” and was the “ next preceding annual account taking ” of that firm, within the meaning of the partnership articles, and determined the amount of A.’s interest in the partnership property.</p> <p>A bill in equity by the administrator of the estate of a'deceased partner against the other partners, to obtain the, intestate’s share of the profits of the partnership, will not lie also to obtain the exhibition of the books and papers of the firm, upon an allegation that the firm did business here and in another State, and that an official named threatened to assess and collect a tax from the plaintiff on the interest of the deceased partner in the property of the firm in that State on the day of his death, and in order to ascertain the amount of such tax threatened to appraise the property there.</p> <p>A bill for discovery of evidence to be used in defence of an action does not ordinarily lie against a person not a party to that action, and whose only relation to it is that of a witness.</p>

<p>Construction of Order for Payment of Money — Effect of Acceptance — Consignment.</p> <p>A written order addressed to A., who accepts it, directing him to pay to B., “from equities on hosiery consigned to you,” a sum named, “and charge the same to our account,” and signed by C., is a direction to pay only from the fund designated, which is the sum to become due to C. by reason of the consignment made by him to A. when the transaction shall be closed, and is not limited by the net proceeds of sales improperly made, but includes whatever sum should have been realized from sales made in accordance with the terms of the consignment.</p>

Bill in equity, filed August 19,1898, against Levi A. Dame, Oliver H. Flanders, and Jason E. Bailey, to redeem land in Milton and Quincy from a mortgage. Hearing before Hammond, J., who entered a decree, from which the plaintiff appealed to the full court. The facts appear sufficiently in the opinion.

<p>Tort, by the trustee of the estate of a bankrupt, under U. S. St. July 1, 1898, for the conversion of nine horses, the property of the bankrupt. The horses were attached within four months next prior to the filing of the petition and to the adjudication in bankruptcy.</p> <p>At the trial in the Superior Court, before Hopkins, J., the defendant requested rulings that upon all the evidence the plaintiff could not recover, and that having been discharged as trustee, and the estate having been closed up and settled, he could not maintain the action. The defendant also asked a ruling that, if the plaintiff could recover at all, he could not recover for four horses, in which the bankrupt had a special property.</p> <p>The judge refused to give any of the requests, and ruled that the plaintiff might recover the market value of all the horses; and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and the' defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Promissory Note made by Wife to Order of Husband — Original Contract — Money lent or Money had and received — Equity — Estoppel — Allegations of Bill.</p> <p>A promissory note, signed by a married woman, payable to the order of her husband, and indorsed by him, having been avoided by her, the holder can resort to the original contract and maintain an action on the common counts for money lent or money had and received.</p> <p>Equity will not enforce, by means of the doctrine of equitable estoppel, a contract between husband and wife in the case of a promissory note signed by her, payable to his order and indorsed by him; and in this bill in equity there are no sufficient allegations to constitute the ground of an estoppel.</p> <p>A party cannot be relieved in equity, by reason of an estoppel, any more than at law from the effects of a positive rule of law.</p>

<p>Promissory Note — Action — Transferrer — Bona fide Holder before Maturity for Value — Guarantor — Indorser — Action in Name of Person to whom, Promise is made.</p> <p>Even if it be true that a promissory note was transferred to the plaintiff after maturity and without consideration, for the purpose of bringing an action in this State, still he can maintain the action in the right of his transferrer, if the latter is a bona fid.e holder, before maturity, for value.</p> <p>One who writes on the back of a promissory note, “I hereby guarantee the payment within note,” is a guarantor and cannot be sued as an indorser. To maintain the action against him as guarantor it must be brought in the name of the person to whom the promise was made.</p> <p>Whether St. 1897, c. 402, entitled “An Act relative to actions upon assigned claims,” is applicable to this case, which is one of guaranty of payment of a promissory note, the question not having been raised in the court below or in tnis court, and the statute having been passed subsequently to the guaranty and alter the date of the writ, qucere.</p>

Bill in equity, inserted in writ and brought in this court, dated May 13, 1895, to require the defendant to render an account of his administration of a trust and to pay over to the plaintiff the principal thereof and all income which had or should have been derived therefrom. The case was referred to a master, the exceptions to whose report were overruled, and the report was confirmed on October 24, 1898. The bill was thereafter dismissed; and the plaintiff appealed.

<p>Petition to the Probate Court by the trustee under a will for instructions as to the disposition of certain bonds and a sum of money. A decree was entered, to the effect that they were income of the trust fund; and an appeal was taken. Knowlton, J., reserved 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 March, 1900, and afterwards was submitted on briefs to all the justices.</p>

<p>Bill in equity, filed July 29,1898, in the Superior Court, by Samuel L. Gross, Alonzo Stouch, and Kurwin L. Eisenhart, doing business under the name of La Buta Cigar Company, Sylvester G. Bennett and Sarah A. Bennett, his wife, to obtain the execution of a release of certain lots of land in Everett from a mortgage. At the hearing a decree for the plaintiffs was entered; and the defendant appealed to this court. The facts appear in the opinion.</p>

<p>Contract, by John W. Weeks and John C. Holman. The declaration contained seven counts, each for money paid by the plaintiffs to the defendant’s use in taking up, after maturity, seven promissory notes, upon which the plaintiffs, the defendant, and others were accommodation indorsers, and also an eighth count upon an account annexed, for the same causes of action set forth in the other counts. Answer: 1. A general denial. 2. The statute of frauds. Trial in the Superior Court, without a jury, before Lilley, J., who reported the case for the determination of this court, in substance as follows.</p> <p>The plaintiff Holman died since the beginning of the action, and the case was prosecuted by the plaintiff Weeks in his own behalf and in behalf of the estate of Holman.</p> <p>There was evidence that the Davidson Ventilating Fan Company was a corporation organized under the laws of the State of Maine in 1891, doing business in Boston, of which the plaintiff Weeks was the president. The defendant was the treasurer and general manager, and these two, together with Holman, Frank Q. Browne, and Henry C. .Hall, were directors, and held such offices respectively from the organization of the corporation until January 7, 1895, when the defendant resigned the offices of treasurer, director, and general manager; and the others continued in office until the corporation ceased to do business in May, 1895.</p> <p>In 1892 and 1898, the corporation being in need of funds with which to carry on its business, the plaintiff Weeks, at a meeting of the directors held for the purpose of considering what action should be taken to raise money to carry on the corporation’s affairs, at which all were present, stated that he was ready to indorse the corporation’s paper jointly with the other directors for the purpose of raising the necessary funds; and thereafter a note or notes were drawn by the corporation, signed by the defendant in the corporate name, payable to the corporation, indorsed by the five directors and the corporation, and discounted. The proceeds of such notes were placed in the treasury and applied for the use and benefit of the corporation; such note or notes as they became due were renewed in like form and manner, and other notes were given for additional sums from time to time, and the seven notes referred to in the declaration were the last renewals of the notes heretofore mentioned, and all outstanding at the time the corporation was unable to meet its liabilities.</p> <p>The defendant either prepared such notes and the renewals thereof from time to time, and offered them for signature to the various directors, or instructed his assistants in the corporation’s office to prepare such notes and the renewals thereof, and to present them to the directors for signature, which was done; and the signatures of the directors upon the seven notes in question appear on no two notes in the same order of signing, and no direction was ever given by the defendant as treasurer to his assistants as to the order in which the directors should affix their signatures as accommodation indorsers, but his instructions to them were to get the signatures of the directors. The defendant testified that he never heard the plaintiff Weeks make the original proposition, or any other proposition, in relation to the indorsing of the notes, except on some occasions when he himself handed some of the notes to Weeks, indorsed by the other directors; that then Weeks stated to him that he, the defendant, should sign the notes, as the bank required that all the directors should indorse the notes before they could be discounted, and the defendant thereupon indorsed those notes.</p> <p>The corporation made an assignment for the benefit of its creditors. The seven notes referred to in the declaration were not paid by the corporation at maturity, and were duly protested by the respective holders thereof, and due notice was given to all the indorsers thereon. The notes were paid shortly after maturity by check of Hornblower and Weeks, a copartnership of which the plaintiff Weeks was a member. The plaintiff Holman was then in the employ of Weeks, and the amounts as paid were charged by the firm, to Weeks and Holman in their respective accounts, or were put on a special account for which both the plaintiffs were responsible. Weeks testified as to this point: “ I do not know whether or not Holman had provided the money to pay one half the amount' of each note before such note was paid, but he provided it then or later to pay one half the notes.” The corporation, through an assignee for the benefit of its creditors, paid the plaintiffs a small dividend, but the plaintiffs received no other payment from the corporation or on its account.</p> <p>At a sale by the assignee at public auction of the assets of the corporation, the plaintiff Weeks bought, or caused to be bought, a portion thereof, and paid for the same with his own money, and afterwards sold the same for $2,500. He testified that he did not know the value of the assets bought by him, and could not describe them, and did not remember what he paid for them; and testified further as follows : “ My agent, if you want to put it that way, bought the assets (referring to a portion thereof) at public sale, and they were afterwards sold, and the $2,500 I have received since was on account of the sale of those assets.” This had nothing to. do with the dividend paid by the assignee, save as the amount which Weeks paid for such portion constituted a part of the fund from which the dividend was paid, and such sum has not been accounted for nor applied on the notes referred to in this action. The directors, Brown and Hall, contributed to the plaintiffs their respective proportions, as claimed by the plaintiffs, of the money paid by them, after the payment of the notes by the latter, but the defendant has never paid any portion of the sum so paid by the plaintiffs.</p> <p>The defendant objected to the admission of any evidence tending to show an agreement and understanding other than that expressed in the notes which were introduced in evidence; and requested the judge to rule that such testimony was not competent under the declaration, but the judge declined so to rule ; and the defendant excepted.</p> <p>The defendant requested the judge to rule that as the declaration alleged joint liability by indorsement, while the notes showed only successive and several indorsements, there was a fatal variance, and the plaintiff could not recover; that the declaration and each count thereof being framed in indebitatus assumpsit,' this action could not be maintained on evidence showing an express promise, agreement, or understanding between the directors as to their mutual liability, “because where there is a special contract still subsisting, upon which the action might be brought, indebitatus assumpsit will not lie, and the cause of action must be set forth in a special count ”; and that payment by the plaintiffs, they being prior indorsers, and there being no evidence of any express request by the defendant, would raise no assumpsit as against the defendant so far as he might appear on any of the notes introduced in evidence as a subsequent indorser, and, therefore, on the pleadings and evidence, the plaintiffs could not recover. The judge declined so to rule; and the defendant excepted.</p> <p>The defendant objected to the admission of the evidence offered to show by paroi an agreement or understanding as to indorsing the notes, on the ground that there was an attempt to establish by oral testimony an express promise to answer for the debt, default, or miscarriage of the corporation without any note or memorandum thereof in writing; and asked the judge to rule that the statute of frauds would be a bar to maintaining this action upon paroi evidence of such promise, understanding, or agreement. The judge admitted the evidence, declined to give the ruling requested, and ruled that the understanding as to joint liability among the indorsers was not such an agreement as would fall within the statute of frauds; and the defendant excepted.</p> <p>The defendant also asked the judge to rule that the plaintiffs were not entitled on the pleadings and evidence to maintain this action jointly, and, at the close of the evidence, that the plaintiffs were not entitled to recover in this action; that, assuming the relation of the indorsers to be that of co-sureties, as claimed by the plaintiffs, any profit made out of the assets of the corporation by one must enure to the benefit of all, and a portion of the value of or profit on the assets bought by the plaintiff Weeks must be accounted for in this action for contribution ; and that this action could not be maintained, because it did not appear from the evidence how much the plaintiffs have paid more than their proportion or share of the common debt, assuming the obligation to be joint, nor that the plaintiffs have paid more than upon a fair accounting they can ever be called upon to pay. The judge declined so to rule; and the defendant excepted.</p> <p>The defendant further requested the judge to make a special finding as to whether or not there was an express contract as to the indorsement of the notes, which the judge declined to do, stating that he found that there was an understanding among the directors by which they were to indorse jointly, and that in his view of the law applicable to the case it was not necessary to show an express agreement; and the defendant excepted.</p> <p>Upon all the facts the judge found that there was an understanding between all the directors that they indorsed the notes for a common purpose for the benefit of the corporation, in which they were commonly interested, and that it was understood and intended by them that the -indorsement was a joint and not a several indorsement; and found that the plaintiffs were entitled to recover from the defendant his proportion of the sum expended by them, with interest.</p> <p>If the rulings were correct, judgment was to be entered for the plaintiffs on the finding; otherwise, the finding was to be set aside and the case to stand for trial.</p>

<p>Three ACTIONS oe contract upon promissory notes, tried together in the Superior Court, before Hophins, J.</p> <p>The jury returned a verdict for the plaintiff in each case ; and the defendants alleged exceptions, which appear in the opinion.</p>

<p>Agreement to exchange Land — Defeclwe Title — Commission earned by Broker acting in Good Faith.</p> <p>If a broker is employed to find a person to convey land to be paid for by a conveyance of other land, that is to say, to effect an exchange, and the principal makes a valid agreement with the customer produced by the broker, the broker has earned his commission, even if it turns out that the customer cannot make a good title and the land is not conveyed, provided the broker acted in good faith in the matter.</p>

<p>Personal Injuries — Defective Way — City — Contract — Negligence — Action — Notice.</p> <p>If a city takes by right of eminent domain for a water basin land in a town within ■ the limits of a highway which is at the same time discontinued, and contracts with the town to provide for the public a safe and convenient way for travel over or around the discontinued way until the completion of a new way to be substituted therefor, which contract is ratified by statute, a person who, while travelling on the old way, which is continually in use by the public before the completion of the new way, no temporary way around the old way being constructed, is injured by a defect in the old way, may maintain an action against the city for his injury, and he is not bound to give the notice required by Pub. Sts. c. 52, § 19.</p>