Volume 179 — Massachusetts Reports

<p>Municipal Corporations, Officers and Agents. Negligence.</p> <p>If a city or town, instead of leaving the repair of its ways to the public officers designated by the statutes, undertakes to make the repairs by its own agents, it is liable for injuries caused by their negligence.</p> <p>The city of Newton by ordinance provided, that, under the supervision of a joint standing committee of the common council and board of aldermen, the superintendent of streets should have the charge of the making, widening and altering of streets and ways. Held, that this made the superintendent of streets the agent of the city, and that the city was liable for an injury caused by the negligence of workmen under his direction operating a stone crusher to prepare material to be used in constructing a new street.</p> <p>When city authorities are repairing or constructing a street, one who drives between wooden horses bearing the sign “No passing through,” which have been placed.across the way or are temporarily standing lengthwise at the side of the road in such a position as plainly to indicate that it is not open to travel, does so at his own risk. In this case, however, the evidence was conflicting and would justify a finding that the part of the way on which the plaintiff was driving was open to travel. »</p> <p>To dump a load of stone on the wooden platform of a stone crusher and start up the engine of the crusher letting off steam just as a horse which is being driven on a roadway twenty-five feet away and in plain sight is opposite to it, may be found to be a negligent act on the part of the agents of a city operating the crusher.</p>

<p>Insurance, Fire, Mutual companies, Assessments. Limitations, Statute of, Rule of construction.</p> <p>The receiver of an insolvent mutual fire insurance company filed a petition to levy an assessment on policy holders including the defendant, a former policy holder whose policy had expired more than one year but less than two years before he was notified of the assessment. When the petition for an assessment was filed the provision of St. 1894, c. 522, § 48, was in force, that no assessment should be valid against a person who had not been notified thereof within two years after the expiration or cancellation of his policy. While the matter of the assessment was before an auditor, St. 1897, c. 197, § 2 was passed amending this provision by changing the words “ two years ” to “ one year.” Held, that the change in the limitation could not have been intended to apply to pending assessments and that this assessment could be enforced.</p> <p>It is the uniform rule of construction for statutes of limitation, that a statute short-erring the period for enforcing a liability is not held applicable where the result would be to deprive one of the right to enforce a claim without a reasonable time to act before being barred. Per Hammond, J.</p>

Information by the Attorney General at the relation of the Treasurer of the Commonwealth under Pub. Sts. c. 13, § 54, to collect from the defendant a franchise tax assessed upon it as of May 1, 1898, amounting to $15,690 with interest thereon from December 10, 1898, filed January 25, 1900. The case came on to be heard before Hammond, J., who reserved it upon the pleadings and agreed facts for the consideration of the full court.

Contract on a promissory note made by Carl F. Monk and Agnes C. Monk for $370 with interest thereon. Writ dated September 25, 1899. At the trial in the Superior Court, before Bond, J., the plaintiff introduced evidence tending to show that the defendants signed the note, and that it was given for money lent by the plaintiff to the defendants, and introduced the note in evidence.

<p>Tort under Pub. Sts. c. 52, § 18, to recover for personal injuries caused by the caving in of a sidewalk on which the plaintiff was walking on Dudley Street in that part of Boston called Roxbmy. Writ dated April 7, 1900.</p> <p>At the trial in the Superior Court, before Aiken, J., the plaintiff introduced evidence tending to show that on December 24, 1899, at 8 P. M., he was walking upon the sidewalk of Dudley Street in the Roxbury district of Boston; that when he reached a point in front of No. 126, close to the curb, the surface of the sidewalk suddenly sank beneath his weight; that he went into the hole, which was about one and one half feet square, nearly up to his knees, and was thrown forward upon his face and injured.</p> <p>The plaintiff also introduced evidence tending to show that the place where the accident happened was in the immediate vicinity of the new Dudley Street station of the Boston Elevated Railway Company; that Dudley Street was one of the principal streets in the Roxbury district and was the most travelled of any street in that district; that a short time before the accident a great deal of digging and excavating had been done between the lines of the sidewalk in front of No. 126; that a large hole ten or twelve feet deep had been dug in order to lay the foundation for a post near by supporting the structure of the elevated railroad and in connection with this work some blasting had been done in the sidewalk; that a trolley wire pole had formerly stood near this post and had been taken up a short time before the accident and shifted to its present position on the other side of the place of the accident; that an electric light pole had been placed in the sidewalk in the immediate vicinity of the spot where the plaintiff fell; that it had been taken up within a month before the accident and removed to the other side of the street, and the hole filled in and the earth stamped down; that a hydrant or water meter which had been, placed in the sidewalk within a few feet of the spot where the plaintiff fell had also been taken up and removed, and the hole filled in a short time before the accident. It did not appear who removed the hydrant.</p> <p>One Nelson, an employee of one McGrath, who occupied the store, and basement of No. 126, testified that he saw the hole in the sidewalk where the plaintiff fell, on the morning after the plaintiff broke through; that three or four days before the day on which plaintiff was injured, the witness discovered water rushing into the cellar of No. 126; that it came through the front foundation wall of the building adjacent to the sidewalk and at a point opposite to the spot where the plaintiff broke through; that it covered the cellar floor to a depth of from one to two inches, and that he at once notified the agent of the owner of the building that the cellar was flooded with water which was coming through the front wall of the building. One Macy, the janitor of the building, testified that immediately upon receipt of this notice he notified the water department of the city of Boston that water was coming into the cellar of No. 126. Macy and Nelson both testified that employees of the water department of the city of Boston came to the building on the day when these notices were sent, and entered the cellar and made an examination and saw the water coming in through the front wall; that these men wore badges of the water department of the city of Boston. They also testified that nothing was done by these men, or by any one else, inside of the building, in order to keep the water out, but that on the day following the day when the above notices were given, the employees of the water department took up the pavement and performed some work in the street, in front of the place where the plaintiff fell. The patch of pavement thus taken up and replaced, where the work was done, was about eight feet in length along the curb and a few feet wide extending out from the curb. Nelson testified that as soon as this work was done in the street the water stopped coming into the cellar, and that while he remained in the employ of McGrath, until June, 1900, no more water came into the cellar. And this was corroborated by Macy.</p> <p>Nelson also testified that there had been an aperture between the curb and the street pavement, about two or three feet long, in front of the post supporting the elevated structure above referred to, and that this aperture was filled with cement a few days before the accident; that, the sidewalk was in a very poor condition; and that he noticed, when sweeping the sidewalk, that pools of water gathered upon the surface.</p> <p>The plaintiff testified that the soil under his feet in the hole was soft and muddy, and that his shoes and his trousers below the knees were covered with mud. He also testified that it had been raining quite hard off and on that day.</p> <p>The foregoing is in substance all the evidence that appeared by the report.</p> <p>The defendant offered no evidence, and at the close of the plaintiff’s case requested the judge to direct a verdict for the defendant on the ground that it did not appear from the evidence that the defendant had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on its part. This was the only question raised.</p> <p>The judge ruled as requested and ordered the jury to return a verdict for the defendant, and reported the case for the consideration of this court. If the ruling was correct, judgment was to be entered for the defendant upon the verdict. If not, the verdict was to be set aside and a new trial ordered.</p>

<p>Bill in' equity, by amendment from an action of contract, to enforce an agreement contained in a letter of Nancy J. Ball, the defendant Watson’s intestate, to leave to the plaintiff all the intestate’s property, the heirs at law of the intestate being joined as defendants. Writ in the original action at law dated September 12, 1895.</p> <p>In the Superior Court the case was heard by Braley, J., who reserved it upon the pleadings and the master’s report for the consideration of this court.</p> <p>The letter containing the agreement sought to be enforced was as follows:</p> <p>“ Springfield, April 16, 1894. Dear Sister Ellen: I don’t think I am getting any better I am feeling very bad. Will you and Minnie come and stay with me as long as I live I will pay all your expenses, and what property I have left will be yours Ellen, my expenses are very large but all that I leave shall be yours. Should like to have you come just as soon as you can My nurse cannot stay very much longer and Mr. Jenkins is going to move. Try and get here before they move. Yours with love your far off sister. Nancy J. Ball, Per Mary E. Chapman.</p> <p>“ P. S. Dear Cousin I write this letter for Mrs. Ball she is not able to write, come just as soon as you can. The Doctor says Mrs. Ball cannot live long she is failing fast. M. E. C.”</p> <p>Henry W. Bosworth, Esquire, appointed special master in the case reported as follows:</p> <p>“I find that Nancy J. Ball,late of Springfield, Massachusetts, died on May 21,1894, seised and possessed of real and personal estate ; that in July, 1894, the defendant, Emery C. Watson, was duly appointed administrator of her estate; that his inventory filed therein shows personal estate valued at $2,243.86, and real estate valued at $4,000. . . .</p> <p>“I find"that on the sixteenth day of April, 1894, Ball, at her home in Springfield, authorized and directed the sending of the letter, a copy of which is annexed to the bill of complaint, to the plaintiff then at Orlando, Florida; that on receiving the same the plaintiff communicated to Ball her consent to coming with her daughter Minnie from Orlando to Springfield, if Ball would advance money to cover the expense; that Ball afterward, on May 4, 1894, sent the plaintiff a draft for $100, which the plaintiff received, and that the plaintiff with her daughter came from Orlando to Springfield, arriving at the home of Ball on May 19, 1894, where tliey remained till after the death.of Ball, which occurred about thirty-eight hours after their arrival.</p> <p>“ Evidence was introduced at the hearing tending to show that Ball was on April 16, 1894, and ever thereafter, and for several months before, so weakened in mind by age and disease, she then being in her eighty-sixth year, and having suffered much from illness, as to be incapable of making a binding contract. But I find on the whole evidence that Ball, though enfeebled ' somewhat in mind by age and. illness, had at the time sufficient mental capacity for making a valid will or a valid contract.</p> <p>“ It appeared from the evidence that the letter in evidence with statements previously made by Ball to the plaintiff led the plaintiff to believe that Ball would leave a will giving her property to the jfiaintiff, that after diligent search by the plaintiff and others, when no will of Ball could be found, the administrator was appointed ; that afterward the plaintiff, with some of the other heirs of Ball, executed a power of attorney to the administrator, giving him charge of the real estate and authorizing him to sell it; that in August, 1894, the administrator made four payments to the plaintiff in cash, in rents she had collected and in personal articles of the estate, amounting in all to $227.13, and she gave a receipt to him for each payment as being part of her distributive share in the estate of Ball ; that in the same month she was paid by the administrator, seventy-five dollars as from the distributive share of Clara Fraser in the estate, and one hundred dollars as from the distributive share of Laura A. Watson, these sums being paid on orders from those next of kin respectively, and being duly receipted for by the plaintiff as from such distributive shares respectively, and that all these things were transacted before the plaintiff had taken legal counsel as to her rights now in question.”</p> <p>The defendant filed two exceptions to the special masters report. 1. To the master’s finding that the letter, of which a copy was annexed to the bill of complaint, was authorized or directed to be sent by Nancy J. Ball to the plaintiff, and averring that this finding was not warranted by the evidence. 2. To the master’s finding that Nancy J. Ball, at the time the letter was written, had sufficient mental capacity for making a valid will or valid contract, and averring that this finding was not warranted by the evidence.</p> <p>When the case was reserved the following decree was entered in the Superior Court: “ This case came on to b§ heard this day, upon the coming in of the Special Master’s lleport, and was argued by counsel, and by consent the exceptions to said Master’s Report, filed by the defendants, are overruled, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the Master’s Report be affirmed.”</p> <p>The evidence reported by the special master was set forth in the report to this court and the material portions of it are described in the opinion of the court.</p>

<p>Pleading, Civil. Replevin, General denial.</p> <p>In replevin under our practice there may be a judgment for a return under a general denial, which is broader than the old plea of non cepit and puts in issue the plaintiff’s right of possession.</p>

<p>Bill in equity by a mortgagee, who had redeemed a parcel of land in Boston from a sale for taxes, to recover from the city the proceeds received from the sale after deducting the amount of the tax due and expenses, and also against George H. Reed, holding under the mortgagor, filed April 27,1900.</p> <p>The case was heard on the bill and answers and evidence by Lathrop, J., who found the following facts:</p> <p>1. On or about June 30,1897, one Adolph Rissell, being then seised in fee of the parcel of land before mentioned, borrowed from the plaintiff the sum of $3,000, and gave the plaintiff his promissory note therefor, payable in three years after that date, and as security therefor mortgaged to the plaintiff the land in question. The mortgage was recorded on or about July 2,1897.</p> <p>2. On or about July 8, 1897, Rissell conveyed the premises in fee, subject to the mortgage, to one John Anderson, by deed duly recorded, and on or about January 6, 1898, Anderson, by deed duly recorded, conveyed the premises in fee, subject to the mortgage, to the George Woodman Company, a corporation organized under the laws of this Commonwealth.</p> <p>3. On May 1, 1898, the George Woodman Company was seised in fee of the premises subject to the mortgage, and a tax was duly assessed to that corporation, as the owner thereof, for the year 1898, of $54.40, which' tax thereupon became a lien on the premises.</p> <p>4. On or about September 12, 1898, the George Woodman Company conveyed the premises, subject to the mortgage, to one Cyrus C. Mayberry, by deed duly recorded, and Mayberry remained seised in fee thereof subject to the mortgage until the tax sale and the conveyance hereinafter mentioned.</p> <p>5. On or about December 28, 1899, the tax assessed to the George Woodman Company as owner of the premises then remaining unpaid, one Nathaniel H. Taylor, being then the collector of taxes for the city of Boston, and having taken all steps required by law to authorize and enable him legally to sell the premises for non-payment of the tax, sold the same at public auction, pursuant to law, to one William W. Reed, the brother of the defendant George H. Reed, for the sum of $850, being $785.80 in excess of the amount of the tax and the interest thereon, and incidental costs and expenses; and pursuant to the sale Taylor, as such collector, by deed dated January 11,1900, and duly recorded, conveyed the premises to William W. Reed, the purchaser.</p> <p>6. The semi-annual instalments of interest on the mortgage to the plaintiff were promptly paid to her by the successive owners from time to time of the premises until the instalment due December 30, 1899, which was not, and never has been, paid or tendered to the plaintiff, or to any person entitled to receive it. The plaintiff had no notice that the tax assessed for the year 1898 on the George Woodman Company as owner of the premises was unpaid, or that the premises were about to be sold for the non-payment thereof, or of the sale on December 28, 1899, until on or about January 22, 1900, when she received a letter from William W. Reed, informing her that the property had been sold to him for $850, and that he held a tax title thereon.</p> <p>7. On or about February 24,1900, the plaintiff redeemed the premises from the tax sale by the payment of $869.45 to William W. Reed, and received a release thereof from him; and on or about March 21,1900, the instalment of interest due December 30,1899, then remaining unpaid, and the plaintiff not having received payment of the amount of the tax from any person owning, or claiming to own, the equity of redemption in the premises, after due notice by publication as required by law and by the terms of the mortgage, sold the premises, pursuant to the power of sale contained in the mortgage deed, to one James Richard Carter, who bought the premises in her behalf for the sum of $3,100, a sum less than the amount of the principal and the interest due thereon, and by deed dated March 21, 1900, conveyed the premises, by agreement with Carter, to him for the use of the plaintiff, and the plaintiff is now seised in fee thereof; and the balance of the principal and interest due thereon remaining after applying the purchase money, and the costs of said foreclosure, and the amount paid by the plaintiff for the redemption of' the premises as aforesaid, remain wholly unpaid.</p> <p>8. On or about January 19,1900, Cyrus C. Mayberry, by deed duly recorded, conveyed the premises to the défendant George H. Reed for $151.62, and by deed purported also to assign to the defendant Reed all right to receive from the defendant the city of Boston the surplus proceeds of the tax sale of the premises on December 28,1899. The conveyance was made subject to encumbrances of record, and Mayberry and the defendant Reed knew that the premises were subject to the mortgage to the plaintiff, and that the plaintiff was ignorant that the premises had been sold for taxes.</p> <p>9. No evidence of conspiracy, as charged in the bill, was introduced.</p> <p>10. The defendant George H. Reed claimed the surplus of the tax sale in the hands of the city, under the St. 1888, c. 390, § 40. The plaintiff claimed the surplus under this and other sections of the same statute.</p> <p>11. The city, in its answer, admitted that it had in its possession the surplus of the tax sale, amounting to $785.80, and was ready to pay it to the person or persons entitled thereto, and asked that, as it was a mere stakeholder, it might be allowed its costs..</p> <p>The mortgage deed, a copy of which was annexed to the bill, provided that until the mortgage debt was paid the mortgagor, his heirs, executors, administrators or assigns, “ shall pay all taxes and assessments, to whomsoever levied or assessed, whether on the granted premises or on any interest therein, or on the debt secured hereby, and whether in the nature of taxes and assessments now in being or not, ... or in default thereof shall pay to the grantee, her heirs, executors, administrators or assigns, all such sums as she or they shall reasonably pay for such taxes, assessments and insurance, with interest; . . . Said grantor hereby covenants and agrees for the consideration aforesaid to punctually pay said taxes and assessments, and not to make claim to any reimbursement whatever therefor, and the non-payment of such taxes and assessments when due shall be deemed a breach of this mortgage.”</p> <p>The power of sale clause contained the provision, that in case of a sale under the power the mortgagee shall “ out of the proceeds of such sale retain all sums then secured by this deed (whether then or thereafter payable), with interest and all costs and expenses.”</p> <p>At the request of the parties, the justice reported the case for the consideration of the full court, such order or decree to be entered as to the court should seem meet.</p>

Tort by a passenger to recover for injuries from a fall caused by stepping on a banana skin on an artificial stone platform at the North Union Station in Boston. Writ dated April 27, 1900. At the trial in the Superior Court, before Aiken, J., there was no evidence showing how long the banana skin had lain where the plaintiff stepped on it or how it got there.

Contract to recover the price of certain intoxicating liquors sold by the plaintiffs to the defendant from September, 1888, to March, 1889. Writ dated December 21, 1889. The second trial of this case in the Superior Court was before Hammond, J., without a jury, and the exceptions were allowed by Fessenden, J., after Hammond, J., became a justice of this court. The exceptions taken at the first trial were sustained in a decision reported in 156 Mass. 211.

<p>Sewer. Contract, Rescission. Estoppel.</p> <p>One owning land on the line of a proposed sewer in Boston agreed with the street commissioners and the head of the sewer department that he would convey to the city his land within the lines of a new street where the sewer was to run, in consideration that nothing should be paid for sewer assessments on his adjoining property or for the right to enter the sewer therefrom, and conveyed the land. Subsequently it was voted by the aldermen, with the approval of the mayor, that the assessments for this sewer be assumed by the city on account of the adjoining estates not being benefited by the sewer. A permit to connect the premises with the sewer was issued by the sewer department and the connection was made. A purchaser of this land, on inquiring before his purchase at the collector’s office and the sewer department, was informed that there were no assessments or charges against the land. Later this purchaser sued the city for injuries from an overflow of the sewer caused by the alleged negligence of the city. The defence relied upon was that the plaintiff’s drain was not lawfully connected, because there was no payment before entering the drain at the rate of two cents per square foot of all land benefited by the connection, as required by the Rev. Ord. of Boston of 1885, c. 27, § 15. Held, that, even if for any reason the city had a right to repudiate its bargain, and if the issue of the permit was beyond the power of the sewer department, the city could not repudiate its agreement while still holding the land conveyed to it, and that until he had notice to the contrary the plaintiff had a right to rely on the information which he had received from the city and to assume that he was entitled to protection as one lawfully connected with the sewer.</p>

<p>Corporation, Officers.</p> <p>Pub. Sts. c. 106, § 24, providing for officers of corporations holding over until their successors are chosen and qualified, does not prevent the termination of the holding by mutual understanding before a permanent successor is appointed.</p> <p>A treasurer of a corporation is bound to keep the money of the corporation distinct, and, if he appropriates it and makes himself a debtor by wrong instead of an agent, he may be sued by the corporation at once, whether his office continues or not.</p>

<p>Four PETITIONS under § 3 of St. 1900, e. 426, entitled “ An Act to ratify and confirm the contract of lease between the Boston and Maine Railroad and the Fitchburg Railroad Company,” brought by the Boston and Maine Railroad, the lessee, severally against John M. Graham, the International Trust Company, Marcus Morton, and Alfred C. Vinton, executor under the will of Stephen H. Cutter, holders of preferred stock of the Fitchburg Railroad Company, the lessor, filed at different dates from October 27, 1900, to February 12, 1901.</p> <p>In each case the respondent demurred.</p> <p>The cases were heard by Lathrop, J., who at the request of the parties reserved them upon the petitions and demurrers for the consideration and determination of the full court.</p> <p>St. 1900, c. 426, by its terms was made to take effect upon its passage.</p> <p>The first sentence of the first section of that statute is as follows : “ The contract of lease between the Boston and Maine Railroad and the Fitchburg Railroad Company, as heretofore approved by a majority of the stockholders of each corporation at meetings called for the purpose, is ratified and confirmed, and the lessor and lessee and each of them are hereby granted all power and authority necessary and proper to give the terms of said contract full operation and effect.”</p> <p>In the contract of lease the Fitchburg Railroad Company was the lessor, and the Boston and Maine Railroad the lessee. The second section of the statute authorized the sale to the lessee, for $5,000,000, payable in three per cent bonds, of fifty thousand shares of the common stock of the lessor owned by the Commonwealth, and also sanctioned the issue, pursuant to the terms of the lease, of bonds by the lessee for the purchase by the lessee, upon the same terms, of the remainder of the common stock of the lessor held by private owners.</p> <p>In the third section of the statute it was provided that “ Every stockholder of either the lessor or the lessee shall be deemed to assent to the contract of lease authorized by this act, unless within ninety days from the first day of July in the year nineteen hundred he shall file with the clerk of the lessee a writing declaring his dissent therefrom and stating the number of shares held by him and the number of the certificate or certificates evidencing the same: . . . The shares of any stockholder dissenting as above specified shall be acquired by the lessee and shall be valued and the value thereof be paid or tendered or deposited to or for the account of such stockholder in the manner following: ” This section further made it the duty of the lessee, within thirty days from the filing of any such dissent, to file its petition with the Supreme Judicial Court for the county of Suffolk, setting forth the material facts, and praying that the value of such dissenting stockholder’s shares might be determined, followed by further provisions in the same section establishing a method for a valuation of such dissenting stock, first by three commissioners, and after their report, upon the request of either party, by a jury, and for the payment by the lessee of such value of such dissenting stock when thus finally ascertained to the respective holders thereof, and the acquisition thereby of such stock by the lessee as its own property. Among other powers conferred by this section upon the court was the following: “ Said court may make all such orders for the enforcement of the rights of any party to the proceeding, —for the consolidation of two or more petitions and their reference to the same commissioners or for the consolidation of claims for a jury and the trial of two or more cases by the same jury ; and for the payment of interest upon the value of the stockholder’s shares, as determined, and the payment of costs by one party to the other, — as justice and equity and the speedy settlement of the matters in controversy may require.”</p> <p>Each of the petitions alleged that the respondent therein named had filed, as a holder of the preferred stock of the lessor, with the petitioner’s clerk, within the time limited in the statute, his writing declaring his dissent from the contract of lease, and further proceeded to set forth facts, by reason whereof it was alleged by the petitioner that the respondent in each case was not entitled to the benefits of the third section of the statute, which required the petitioner in effect to become the' purchaser of the shares of dissenting stockholders of either the lessor or the lessee.</p> <p>The petition against Graham alleged as the reason why he was not entitled to dissent, that the lease was approved by a majority of the stockholders of the Fitchburg Railroad Company, at a meeting held for the purpose on March 21 and 22, 1900, and that Graham was present at this meeting and voted his stock in favor of approving the lease.</p> <p>The petition against the International Trust Company alleged as the reasons why that company was not entitled to dissent, that on June 30, 1900, the day when the statute took effect, the trust company was not the registered holder of any shares of the Fitchburg Railroad Company, and did not become the registered holder of the three hundred and fifty shares specified in its notice of dissent until September 27,1900; that on March 21, 1900, the registered holder of these three hundred and fifty shares was the Treasurer and Receiver General of the Commonwealth, from whom the title passed by assignment dated June 4, 1900, to trustees for the National Assurance Company of Ireland, and from these trustees to the International Trust Company by assignment dated June 5, 1900; also that the lease was approved by a majority of the stockholders of the Fitchburg Railroad Company, at a meeting held for the purpose on March 21 and 22, 1900, and that the Treasurer and Receiver General of the Commonwealth, the then holder of the three hundred and fifty shares, was present at this meeting and voted these shares in favor of approving the lease.</p> <p>The petition against Morton alleged as the reason why he was not entitled to dissent, that on June 30, 1900, the day when the statute took effect, Morton was not the registered holder of any shares of the Fitchburg Railroad Company, and did not become the holder of the fifty shares specified in his notice of dissent until August 25, 1900; also that the lease was approved by a majority of the stockholders of the Fitchburg Railroad Company, at a meeting held for the purpose on March 21 and 22,1900, and that the then holders of these fifty shares, since acquired by Morton, were present at this meeting and voted these shares in favor of approving the lease.</p> <p>The petition against Vinton, executor, alleged as the reason why he was not entitled to dissent, that the lease was approved by a majority of the stockholders of the Fitchburg Railroad Company, at a meeting held for the purpose on March 21 and 22, 1900; and that neither Vinton, executor, nor his testator was then the registered holder of any of the twenty shares of stock specified in his notice of dissent, but that these shares since had been transferred to Vinton as such executor; also that the then holders of thirteen of the twenty shares were present at the meeting of the stockholders and voted these thirteen shares in favor of approving the lease. It was not alleged that Vinton, executor, was not the owner of the thirteen shares on June 30, 1900, nor that he first became the registered holder thereof after that date.</p> <p>The respondents severally demurred to the petitions, substantially on two grounds:</p> <p>First: That the court had no jurisdiction to determine whether the respondents were or were not entitled to dissent from the contract of lease ; but had under the statute jurisdiction only to appoint commissioners to ascertain the value of the shares.</p> <p>Second: That the facts set forth by the petitioner in each case, as the reasons why the several respondents had no right to dissent from the contract of lease, were not sufficient in law to deprive them of that right.</p>

Petition to prove exceptions of the defendant in the case of Norman Y. Brintnall v. John Keohane, an action on a replevin bond. Writ in the Municipal Court of the city of Boston dated May 10, 1900, case entered in the Superior Court on appeal August 1, 1900, petition filed January 11, 1901. The case was tried in.the Superior Court by Hardy, J., without a jury.

<p>Tax, Sale, Enforcement in trustee process of lien of mortgagee on surplus proceeds.</p> <p>A mortgagee of land sold for taxes may enforce as claimant in a trustee process his equitable lien upon the surplus proceeds of the sale in the hands of the city or town. If the mortgage does not cover the whole of the proceeds, an attaching creditor of the mortgagor, plaintiff in the trustee process, is entitled to the balance in the hands of the trustee after the claim of the mortgagee is satisfied.</p>

Bill in equity by eight creditors of Benjamin F. Kenerson against John B. B'allon, Benjamin F. Kenerson, Royal B. Kenerson and Ellen P. Kenerson, for an account of the surplus proceeds of a foreclosure sale in the hands of the defendant Fallon, as mortgagee under a mortgage made by the defendant Benjamin F. Kenerson and foreclosed by Fallon, and a distribution of such balance of purchase money among the plaintiffs in proportion to their respective claims, filed August…

<p>Bill for instructions by the trustees under the will of Jeanne Philomene Amory, late of Braintree, filed November 18, 1899.</p> <p>The instructions prayed for related to the disposition of certain real estate in Braintree called Seven Oaks held by the plaintiffs for the charitable trust set forth in the will.</p> <p>The case came on to be heard before Hammond, J., who made the following decree: “ That the trust upon which the testatrix, Jeanne Philomene Amory, mentioned in the bill of complaint in this case, devised to the plaintiffs as trustees, the real estate called Seven Oaks, therein mentioned, is a valid public charitable trust; and it appearing that it is doubtful whether the objects and purposes which the testatrix intended to carry out can be attained in the mode particularly prescribed by her in her will and codicil, it is ordered that the cause be referred to Charles A. Williams, Esq., of Brookline, in said county, as master, to hear the parties and report whether such objects and purposes can be attained in the mode particularly prescribed by the testatrix ; and if said objects cannot be so attained, then to report a scheme for the accomplishment of the general purpose and intent of the testatrix, having such regard to her directions as to the mode of appropriating said trust property as may be convenient with the efficacious promotion of her general design. And this case is retained for further directions.”</p> <p>The heirs at law of the testatrix appealed from this interlocutory decree.</p> <p>The will contained the following provisions:</p> <p>6< Fifth : I give and devise my estate in Braintree aforesaid, called Seven Oaks, and used and occupied by me as a summer residence, to my husband, William Amory, junior, to have and enjoy for his life.</p> <p>11 Sixth: Upon the death of my husband, the said William Amory, junior, I give and devise the said estate of Seven Oaks to Francis I. Amory, Sigourney Butler and one other to be by them chosen as is hereinafter provided, to them and to their heirs, successors and assigns, in trust, nevertheless, to hold for the following object, to wit: a Temporary Home for poor women and their young children, and for invalid women both young and old; the said Home to be under the superintendence and control of the Sisters of St. Margaret, a Protestant Episcopal charitable and religious society in Boston in said Commonwealth, and to be conducted by them in accordance with the broadest principles of Christian Charity, the poor, the sick and the weary of any Christian denomination finding a temporary resting-place there; it being my express desire that no beneficiary or applicant shall be preferred to another because of any particular form of her religious belief, and furthermore, that, although this is to be a home essentially for females, yet young boys shall not be precluded from coming with their mothers.</p> <p>“ Seventh: All the rest and residue of my real property I give and devise to the said Francis I. Amory, Sigourney Butler, and the one other to be by them chosen as is hereinafter provided, and their heirs, successors and assigns, in trust nevertheless, to hold, or in any manner dispose of, for the benefit of the above-mentioned Temporary Home.</p> <p>“ Eighth : In the event of my surviving my husband, I give and bequeath all the rest and residue of my personal property after the payment of the legacies above-mentioned in the first, second and third clauses, to the said Francis I. Amory, Sigourney Butler and the one other to be by them chosen as is hereinafter provided, to them, their successors and assigns, in trust, nevertheless, to hold, or in any manner dispose of, for the benefit of the above-mentioned Temporary Home.”</p> <p>The ninth article contained provisions relating to the trustees and their powers, and provided that they should receive no compensation for their services. It concluded as follows:</p> <p>“ They [the trustees].shall have no power to sell any part of the above-mentioned estate known as Seven Oaks. They shall keep all the buildings thereon in good repair and well insured. They may use for improvements so much of the capital of any Fund for the benefit of said Home that may be in their control, as may be recommended by the Sisters in charge and approved by themselves.</p> <p>“ The said Trustees and their successors shall forever hold and manage the real and personal estate hereinbefore devoted to the purpose, under the direction and charge of the said Sisters of St. Margaret only so long as the said Sisters shall choose to occupy and use the same for these or similar purposes, and, upon the termination of such occupancy and use by the said Sisters of St. Margaret, then under the direction of any similar religious or charitable association of Sisters of the Protestant Episcopalian faith existing in the United States either as an American institution or as an American branch of an English institution that' they may select, and, if there be no such association or branch that will occupy and use the said estate for the above-named charitable purposes, then all the said real and personal estate shall be conveyed by the said Trustees to the Trustees of the Massachusetts General Hospital, and their successors and assigns, for the benefit of the said Hospital, and by said Hospital to be used for the above-named or similar charitable purposes. All the foregoing provisions for the benefit of the said Home under the charge of the Sisters of St. Margaret shall apply in all respects to any institution or association that may succeed to them under the trust herein constituted.”</p> <p>The eleventh article was as follows: “ Subject to the approval of the said Sisters, I wish and suggest that the Home may be called ‘ Saint Margaret’s.’ In giving this Home as above and in making provision for its maintenance, I do not desire to limit in any way its usefulness. I wish the Sisters to occupy it as a winter home, school or hospital, or in any way that they can make it useful; but chiefly as a summer home, so as to offer to the mothers and young children of the deserving poor a few weeks respite from their cares and an opportunity to enjoy the bathing and the fresh air of the country and derive benefit therefrom; to young girls, a temporary home, and, if possible, instruction in their several vocations; to convalescents from the Hospital and elsewhere, rest before resuming their regular occupations; to invalids, care and nursing which in their poor homes they cannot have; to teachers, working-women and nurses for the sick, rest and change from their vocations. To all an opportunity to see and appreciate the self sacrificing lives of the Sisters; so that each may adopt a higher standard of right and duty. It is my fervent hope that many lives may be helped by the instructions of these good women and that the occupants of the Home may learn from them the reason for the faith that is in them.”</p> <p>A codicil to the will contained the following: “ I hereby cancel everything in my said Will, which limits the charitable uses to which my Real Estate and other property in Braintree shall be put by the beneficiaries therein named and described; and I now direct that said beneficiaries may use such Estate and the Income of the Trust Fund, for all and any such purposes as shall be approved and sanctioned by the Trustees holding for them. I hereby authorize and direct said Trustees to lease or to sell any portion of said Real Estate at Braintree with the written assent and approval of the beneficiaries, as cannot be used advantageously, and to use the proceeds of said renting or sale for improvements or for other needs of same charity.”</p> <p>The testatrix left no real estate except Seven Oaks, and no personal property above the amount of the cash legacies and charges of administration, and no property passed to the trustees under the seventh and eighth articles of the will.</p> <p>The husband of the testatrix, who survived her, relinquished his life estate in Seven Oaks.</p> <p>The Sisters of St. Margaret declined to accept Seven Oaks under the terms of the will, for the reason among others that the sisterhood had no funds with which to maintain the property. The plaintiffs then offered the property successively to other sisterhoods and to the Massachusetts General Hospital, all of whom declined to accept it under the terms of the will.</p> <p>The following are extracts from the master’s report:</p> <p>“ Of the various charitable organizations which are parties, the following named offered evidence before me, namely: The Sisters of St. Margaret, the Massachusetts General Hospital, the Church Home for Orphan and Destitute Children, the Boston Florence Crittenton Home Society, and the Salvation Army. . . . I find, that the sisterhood of St. Margaret is a body of women organized under the ordinary rules of sisterhoods for benevolent purposes, nursing and taking care of the poor. It is a branch of the well known sisterhood at East Grinsted in England. The sisterhood in England is very large and does a great deal of charitable work there and in India. The society was founded in England in 1854. In this country there are about fifty professed sisters and about fifteen novices, and the principal house of the society, which is practically a hospital, is located at 17 Louisburg Square in Boston, is known as St. Margaret’s Home, and the Mother Superior, Sister Louisa Mary, the head of the society in this country, resides there. . . .</p> <p>“ The sisters also have another hospital in Boston at No. 2 Louisburg Square, known as St. Margaret’s Infirmary, and carry on St. Monica’s Home for Colored Children on Joy Street in Boston; . . . and summer homes for children and working women at Lowell Island in Salem Harbor, at Wellesley, Sea View, Humerock, New Ipswich, N. H., Cape May, and Tenaliytown, D. C. . . . The three houses in Louisburg Square known as St. Margaret’s Home and St. Margaret’s Infirmary, and the two houses in Joy Street known as St. Monica’s Home, are owned by a corporation known as the Society of St. Margaret’s, organized in 1882 under Chapter 115 of the Public Statutes of this Commonwealth. This corporation consists of 'three men and about twenty members of the sisterhood. The corporation was organized for the purpose of holding any real estate that might be given for the purposes of the sisterhood. It owns but a small amount of personal property. The summer homes above mentioned are not the property of the sisterhood or of the corporation, but are owned by other charitable corporations and are managed by the sisters without any compensation. The only return which the sisters get is their board. . . . This society [the Sisters of St. Margaret] has need of a summer home for working women by the seashore, but has not sufficient funds to enable it to carry on a home at Seven Oaks.</p> <p>“ There was testimony on behalf of the society that if Seven Oaks could be sold, and if a part of the proceeds could be invested in the purchase by the trustees under the will of. a cheaper house, and lot of land, somewhere on Cape Cod, and the remainder of the purchase money to be put at interest, and the income be paid to the sisters, they would put one of the sisters in charge, and would carry out the wishes of the testatrix so far as they could with the money thus received and. such other funds as they could obtain; that they think that such a home could be procured for not exceeding $5,000; that they would expect to charge the working women for their board while they were at the home according to their ability to pay, in order to prevent the occupants of the home from feeling that they were objects of charity, and from their past experience in obtaining money from persons interested in their society, the sisters are confident that they would be able to support such a home.</p> <p>“ There was testimony on behalf of the Massachusetts General Hospital, and I find, that it is a corporation existing under the laws of Massachusetts, founded in 1811, and located in Boston; that it is possessed of a very large property, both of real and personal estate, devoted to the purposes of a hospital in a large degree, both for the benefit of those who can pay and for the benefit of those who cannot pay. There is attached to the hospital, and under the charge of its governors, a convalescent home located at Waverly, Mass. The hospital appropriated some years ago about thirty acres of land for the purposes' of this convalescent home. Independent of the general fund of the hospital sums have been contributed to the convalescent home from time to time, which now amount to $145,620.66, the income of which goes for the benefit of the patients or occupants of the home. Under the rules of the trustees regarding the convalescent home in Waverly, it is provided: First, ‘the convalescent home in Waverly shall receive patients from the general hospital.’ Second, 6 patients from other hospitals, hotels and private houses may be received with the consent of the resident physician of the general hospital.’ _ Third, ‘ the home shall be under the general superintendence of the resident physician of the general hospital, and under the immediate management of a matron who shall be nominated annually by the resident physician and appointed by the trustees.’ 'There is no discrimination made in the persons refeeived at the home if their physical condition is suitable. It may and does receive men, women and children. Poor women, young children and invalid women are cared for when the occasion arises. It is a temporary home. Upon the receipt from the trustees under the will of Mrs. Amory of information that there was possibly at the disposal of the hospital this estate of Seven Oaks in Braintree, the resident physician visited Seven Oaks, and afterwards went again with some of the trustees, and the conclusion they arrived at was that Seven Oaks was an unfit place, unfit and unhealthy for the objects in any way connected with the convalescent home; that therefore they are unwilling to take the estate of Seven Oaks as it stands. As the property now stands 'they could not use it, and would not wish to use it. It could only be used advantageously by them in case it could be sold. There is generally a small deficit in the annual expenses of the convalescent home. The expenses exceed the amount applicable fronr the income and any little receipts they may have from charges to those who are able to pay for the care they receive there, and this deficit is a charge upon and is made up from the general fund of the Massachusetts General Hospital. There is no limitation upon the amount of property which the convalescent home can hold. The hospital is willing, if Seven Oaks'can be sold, and converted into money, to take the proceeds and devote the income to the purposes of the convalescent home. It would also be willing to have the trustees under the will hold the proceeds, and pay tire income to the hospital to be devoted by the hospital to the purposes of the home.</p> <p>“ There was evidence tending to show, and I find as a fact, that the Salvation Arlny is a religious and charitable organization, being an American branch of an English organization, and is incorporated under the laws of New York. The army expends in charitable work in Boston annually not less than $20,000. It has in Boston a home for poor homeless women, one for working women, and one for_ fallen women. The members of the army, who are of both sexes, profess to be neither Protestant nor Catholic. The army is connected with no particular religious sect, and in its charitable work does not discriminate in any way between persons of different religions denominations, or inquire as to the religious belief of those whom it assists. . . . The army is authorized to hold real estate. In the homes of the army they have religious services, but no one is" required to attend them. There was testimony on behalf of the army tending to show that it stands ready to take Seven Oaks, and to conduct a home there for women and children in accordance with the terms of Mrs. Amory’s will; that it is willing to do this under an advisory board of the Protestant Episcopal Church; that no fallen women would be admitted to this home, the home which the society already has for that purpose being sufficient; that no men would be admitted. The men relieved by the army are put on the farm colonies of the army in Ohio, California and Colorado. That the ordinary conduct of such a home by the army would involve the allowing of women and children that might be admitted, to remain there until homes could be found for them elsewhere, and that in the ordinary administration of such a home children would be taken from the slums in the summer season from time to time, to the home grounds, for excursions, but that the army is willing so far to modify its ordinary conduct of such a home as to make the conduct of the home conform to the wishes of the testatrix as expressed in her will, as the same are understood by the army’s managers.</p> <p>“ On behalf of the Florence Crittenton Home Society there was testimony tending to show, and I find, that this society is located in Boston, and is an outgrowth or organic part of the general system of Florence Crittenton homes throughout the United States, of which there are in all fifty-two. A Mr. Crittentoii, a very wealthy druggist of New York City, is the President of the associated Crittenton homes of the United States. Mr. Crittenton is a member of the Episcopal church in New York, and his business manager is the widow of a deceased rector of the Episcopal church. The Boston home is a Massachusetts organization incorporated in 1896 under the general law. It is a temporary home for women. The other homes are organized as corporations in the respective States in which they are located. Some of them have State aid. All of these homes are temporary homes for destitute and friendless women. All of these homes, including the Boston home, are supported by voluntary contributions. The Boston home has no permanent fund. The management of all these homes is local, but all of them, including the Boston home, are under the supervision of Mr. Crittenton’s business manager. The Boston corporation is made up almost exclusively of ladies, they having the direct management of the home and being responsible for the finances. The matron and president of the home are both women. The home is connected with no particular religious sect, but in the board of women managers practically all the churches in Boston are represented except the Catholic church, the home being a Protestant organization. The Boston home is now located at 54 Munroe Street, in Roxbury. No distinction is ever made as to the religious belief of those who are given the benefits of the home. The ladies who manage the home are connected with it only so long as they see fit to be, being at liberty to retire at any time. At the Boston home there is a very efficient laundry which is operated by the inmates, and this laundry has paid nearly all the house expenses. . . . There was evidence on behalf of this home that the corporation would like to take the estate of Seven Oaks, and remove its present home to this spot, and would in this case conduct the home substantially on the lines of its present work, receiving poor and sick women and girls and small children with their mothers, and caring for them until they were able to care for themselves or get work elsewhere. ^ It is the opinion of the managers of the society that the laundry could be as successfully conducted at the Seven Oaks estate as in Boston. It is the intention of this home, if it can obtain the Seven Oaks estate, to sell its present Boston home and to remove to Seven Oaks.</p> <p>“ On the part of the Church Home for Orphan and Destitute Children there was testimony tending to show, and I find, that this home was organized in 1855, and incorporated in Massachusetts under a special charter in 1858. The object for which the charity was organized was to provide a home and education for orphan and destitute children under the direction of the Protestant Episcopal Church. . . . The society is of the opinion that the estate of Seven Oaks is a suitable place for carrying on the work for the purposes for which the society was started, and is willing to take this place if it shall be given to them by decree of the Court, and to run it according to the purposes named in the charter of the corporation, and the corporation has so voted. If the society were to take Seven Oaks, they would expect to sell certainly one of their present homes, and probably both. The probabilities are that they would sell both and remove to Seven Oaks. If this society were to take Seven Oaks they would necessarily be limited to the use of it for the purposes mentioned in their charter, which would preclude the admission of women.</p> <p>“ At the hearing before me, the counsel for the husband and heirs at law of the testatrix stated that in addition to the other questions saved by them in this cause, they wished to have a definite ruling made by me ‘ as to the power of the master to find for such husband and heirs at law under the terms of the decree by which the case was referred to the master.’ I accordingly ruled, as matter of law, and without regard to the facts found by me or otherwise appearing in the hearing before me, that by the terms of the decree, I was not at liberty to make any finding in favor of the husband or heirs at law of the testatrix.</p> <p>“ I find that the testatrix left no real estate except said estate known as Seven Oaks, and no residuum of personal property remaining after the payment of the money legacies and charges of administration, so that no property of any kind, either real or personal, has ever been received by the trustees under the will of the testatrix to hold as a fund as contemplated in the seventh and eighth clauses of her said will.</p> <p>“ I visited the estate known as Seven Oaks, and made an examination of the property. The estate is situated in Brain-tree, and contains between twenty and twenty-five.acres of land. It is valued by the assessors of Braintree for the purposes of taxation at $15,300. There is a dwelling house on the land, formerly occupied by the testatrix and her husband as a summer residence, containing some fifteen or sixteen rooms. This house is in good condition, but was built for a summer house, and does not appear to have adequate heating arrangements for a winter residence. There are two other small houses on the estate, one of which was built by Mrs. Amory for the accommodation of poor children whom she had there as guests for their recreation in the summer season. The other buildings are a cow stable, horse stable, carriage house, sheds, and a hay barn. These buildings are in a fair state of repair. The land has been carefully worked over and is laid down in grass, and there are a great many shade trees upon the estate, and a good deal of money has evidently been expended upon the estate to fit it for a residence of a person of means. The buildings are all of wood, and the expense of keeping them in repair and of keeping up the grounds would be considerable.</p> <p>“ I have carefully considered the provisions of the will and codicil of the testatrix, and all the evidence presented to me, and the arguments of the counsel representing the different parties, and I find and report to the Court that the objects and purposes which the testatrix intended to carry out cannot be attained in the mode particularly prescribed by the testatrix in her will and codicil, for the reason that the Sisters of St. Margaret have declined to take the estate of Seven Oaks as it stands to-day; no similar organization has been found that will take it; the Massachusetts General Hospital has declined to take it upon the' trusts declared in the will; and I find it to be impracticable to divide the estate, and by renting or selling a part of it, to realize sufficient money to enable the sisters to conduct a home on the remaining land, even if they were willing to do so. To undertake thus to divide the land, and to rent or sell a part of it, in the hope of obtaining funds sufficient for the carrying on of such a home as the testatrix contemplated, on a part of the estate to '.be reserved for the purpose, would be a course too speculative to be countenanced, and was not suggested by any of the parties, and would not have been alluded to by me but for the suggestion in the codicil to the will.</p> <p>“I may add that none of the charitable organizations which have appeared in this cause, and signified their willingness to take the estate as it now stands, appear to me to come within the class designated by the testatrix in the ninth clause of her will, to take by way of substitution in case of the failure of the Sisters of St. Margaret to,take the estate or to carry on a home there, and therefore the willingness of these organizations to take the estate as it stands cannot affect my finding on this first question submitted by the decree.</p> <p>Upon the second question submitted by the decree of the Court, without going into the facts and arguments advanced by the several parties, all of which I have carefully considered, I report that upon reading the will and codicil, it seems clear that the primary object of the testatrix was to aid not necessarily absolutely destitute, but poor and invalid, working women and girls, a class not very easily reached by our ordinary public charitable organizations; and to do this through the instrumentality of the Sisters of St. Margaret (with whose aims and methods of working the testatrix must be presumed to have been familiar), or by the aid of some similar organization of the Protestant Episcopal Church; and that the moral and religious influence which the sisters were expected to exert by their example over the persons coming under their care, formed an essential part of the scheme of the testatrix.</p> <p>“ Undoubtedly the testatrix believed the best way to accomplish this general purpose to be the method pointed out by her, of converting the estate of Seven Oaks into a temporary resting place or home, to be under the charge of the sisters, and which they themselves to some extent could occupy.</p> <p>“ But circumstances having arisen which make it impossible to carry out the plan of the testatrix in its entirety, it appears to me that it would be a greater departure from the general purpose and object of the testatrix to turn over the estate to any of the charitable organizations which are parties to this suit, to be used for the relief of persons not very closely resembling the class intended by the testatrix, or to be administered by a very different class of persons, or by persons who, however much they may resemble the Sisters of St. Margaret in their methods of working, are nevertheless of a different religious sect, than would be the case if the property were to be sold, and the proceeds devoted to the general charitable purposes of the Sisters of St. Margaret. As the property must be sold and converted into money before the Massachusetts General Hospital is willing to avail itself of the gift, and the hospital would then apply the income to the general purposes of its home at Waverly, which admits persons of both sexes, and is not under the management of the sisters or any kindred society, it seems to me that the general purposes of the testatrix will not be so well met by giving the income of the fund to be obtained from the sale of the estate to that institution as would be the case if it were to be given to the Sisters of St. Margaret for their general charitable work. At the same time, I think that the establishment of a seashore home was a prominent feature in the mind of the testatrix, and that such a home should be established if it be found to be practicable.</p> <p>“I accordingly report for the consideration of the Court, the-following scheme for the administration of the charity created by the testatrix, as the one which seems to me to be most in accord with the general purpose and intent of the testatrix, and as nearly consistent with her directions as to the mode of accomplishing such general purpose and intent as is possible in the circumstances which have arisen, and which make some departure from the strict letter of her directions absolutely necessary.</p> <p>“ Scheme: That the trustees under the will be directed to sell the estate known as Seven Oaks at public or private sale, for such price and upon such terms of payment as they in the exercise of their discretion may deem best, and to convey the same to the purchaser in fee simple, free and clear of all trusts, and without any obligation on the part of the purchaser to see to the application of the purchase money. That the proceeds of such sale, less the cost of making the same, and after deducting therefrom the expenses, hitherto and up to the time of such sale incurred or to be incurred by the trustees in caring for and maintaining said pi’operty, including the taxes thereon paid by them, together with a reasonable allowance as compensation to said trustees for their trouble in effecting said sale (if the Court shall see fit to make such allowance in view of the fact that circumstances not contemplated by the testatrix have made a sale of the property necessary, thus entailing trouble and work for the trustees not contemplated by the testatrix), and after deducting therefrom the costs and disbursements of the plaintiffs incurred by them in prosecuting this suit to be taxed as between solicitor and client, and all such costs and disbursements of the other parties to this suit, if any, as the Court may see fit to make a charge upon the fund, be invested and held by said trustees under said will, and their successors, with authority to vary investments from time to time at their discretion, upon the trust to pay over the net annual income of the fund thus obtained as often as may be convenient to the society known as the Sisters of St. Margaret, to be by the said sisters devoted to the general charitable work of the said sisters; provided, however, that the trustees for the time being administering the trusts declared by the testatrix may invest not more than $6,000 of the proceeds of said sale in the purchase of a house and land on or near the seashore, in this Commonwealth, and hold the same for said sisters, whenever the said trustees are satisfied that with the aid of the income of the remainder of the fund in the hands of the trustees, and such other resources as the sisters may have, said sisters are financially able and willing permanently to establish, maintain and conduct upon the estate so to be purchased, a temporary home for women and girls, in accordance with the directions contained in the will of the testatrix; and in the event of the-establishment of such a home, the income of so much of the fund in the hands of the trustees as shall remain after the purchase of said home, shall no longer be applied by the said sisters to their general charitable work, but shall all be applied by said sisters to the uses and purposes of said home.”</p> <p>Exceptions to the master’s report were filed by the heirs at law of the testatrix, and by the Florence Crittenton Home, the Church Home for Orphan and Destitute Children and the Woman’s Home Missionary Society of the Methodist Episcopal Church.</p> <p>At the request of the parties, the ease was reserved by Morton, J., for the consideration of the full court, upon the pleadings, the interlocutory decree and the appeal therefrom, and upon the master’s report and the exceptions thereto, so far as they raised questions of law, the exceptions being overruled so far as they raised questions of fact; such decree or other disposition of the case to be made as to the full court should seem meet.</p>

<p>Judgment, Effect of.</p> <p>In an action on a bond given under St. 1895, c. 234, § 4, upon a petition to vacate a judgment, the judgment against the principal in the absence of fraud or collusion is conclusive evidence of the amount of the judgment debt against both principal and surety.</p>

Petition for a writ of certiorari to correct the proceedings of the board of registration in pharmacy in revoking the petitioner’s certificate of registration as a registered pharmacist on a charge of keeping intoxicating liquors for the purpose of unlawful sale, filed January 8, 1901.

<p>Tax, Sale, Right of mortgagee to redeem. Constitutional Laio, Class legislation.</p> <p>The right of a purchaser at a foreclosure sale and of his assignee to redeem from a tax sale is settled; and this right exists although the mortgage was given after the lien for taxes had attached and the foreclosure was before the tax sale.</p> <p>The clause of St. 1888, c. 390, § 57, giving mortgagees of record the right to redeem from a tax sale within two years after actual notice of the sale, is not unconstitutional as class legislation.</p> <p>Where the holder of a tax title has evaded one holding under a mortgagee and thus prevented a .redemption, a bill in equity to redeem the land may be brought under St. 1888, c. 390, § 76, at any time within five years from the tax sale. The remedy, by paying the city treasurer, given by §§ 58, 59 of the same chapter, is cumulative and does not exclude the right to equitable relief. Following Clark y. Lancy, 178 Mass. 460, on both points.</p>

<p>Contract, Consideration, Damages after notice by defendant of intended breach, Parties.</p> <p>The defendants, being leather manufacturers, signed the following agreement which also was signed by nine other leather manufacturers: “ We, the undersigned, manufacturers of leather, promise to contribute the sum of $500 each, and such additional sums as a committee appointed by the Massachusetts Morocco Manufacturers Association may require; in no case shall the committee demand from any manufacturer or firm a total of subscriptions to exceed the sum of .$2,000, such sum to be employed for legal and other expenses under the direction of the committee in defending and protecting our interests against any demands or suits growing out of Letters Patent for Chrome Tanning, and in case of suit against any of us the committee shall take charge thereof and apply as much of the fund as may be needed to the expense of the same.” The plaintiffs were the committee referred to in the agreement and subscribers to it. They did some work before the agreement and after its execution did more, undertook the defence of suits and levied assessments, which were paid, the defendants paying $750. Thereafter the defendants’ firm was dissolved and went out of business, and the defendants notified the plaintiffs thereof. Later upon a demand for the rest of their subscription the defendants refused to pay it. Held, that the committee by signing the agreement promised not only to accept the subscribers’ money but to perform the duties named, and that either this promise or the subsequent work of the committee invited by the agreement was a good consideration for the defendants’ subscription, the court inclining to the view, that the plaintiffs’ promise alone was the consideration, but declaring that, if the acts and not the promise constituted the consideration, the defendants’ promise became binding upon the first substantial act done by the committee, and, that the defendants’ promise was entire and not a series of promises to pay successive sums upon successive steps by the committee. Held, also, on the question of damages, that the defendants did not notify the plaintiffs to stop performance until the defendants' liability had been fixed by a demand under the contract, and, even if such a notice had been given in advance, the plaintiffs would have had the right to go on with this contract where there was a common interest in the performance and where the part done and that which remained to be done appeared to be largely interdependent.</p> <p>Semble, that, where a defendant has announced his intention of breaking a contract and ordered the plaintiff to stop work under it, in cases where the continuance of the work would be merely a useless enhancement of damages, the plaintiff cannot recover damages occasioned by his continuing work after the order to stop.</p> <p>Comment by Holmes, C. J., on the fact that the repudiation of the notion, that tlie subscription of others than the plaintiff might be a consideration for the subscription of the defendant, seems not to have been extended to agreements</p> <p>of creditors to accept a composition.</p> <p>A binding subscription to pay such sums as a committee appointed by a certain association may require is a contract made with such a committee subsequently . appointed.</p>

Bill in equity by the trustee in bankruptcy of Joseph F. Merrill to have certain real estate in the name of the bankrupt’s wife declared to be a part of his estate in bankruptcy, and also to establish title to certain machinery contained in the bankrupt’s factory at No. 22 Norfolk Avenue in Boston, filed June 6, 1900. In the Superior Court the case was referred to Lewis Gr.

<p>CORTRAOT to recover $4,000, the balance of the agreed price for two hundred shares of stock of the Mercer Cell Company alleged to have beeti purchased from the plaintiff by the defendant. Writ dated October 23, 1899.</p> <p>At the trial in the Superior Court, before GasJdll, J., it appeared that the plaintiff signed in duplicate the following agreement under seal:</p> <p>“ In consideration of one dollar and other valuable consideratians to me in hand paid by W. V. Lander of Rumford Falls, Maine, I hereby offer to sell and deliver on demand to said Lander the capital stock of the Mercer Cell Company I now own, consisting of two hundred shares and represented by certificates numbered 30, 31, 32, 33 and 34 respectively, and comprising in all five thousand dollars par value. And in furtherance of this option I hereby agree to at once indorse said certificates in blank and deliver the same to George D. Bisbee of Rumford Falls, Maine, to be by him held in escrow and delivered to said Lander in manner and condition following:</p> <p>“ On payment by said Lander of one thousand dollars ($1,000) within fifteen days from the date hereof, said Bisbee is to deliver to said Lander or. his legal representatives forty shares, and on payment of two thousand (2,000) dollars within thirty days thereafter, said Bisbee is to deliver eighty shares, and on a further payment of two thousand (2,000) dollars within thirty days after the second payment, said Bisbee shall deliver the balance of said shares. Said Bisbee to remit to me by cashier’s check * the amount received from said Lander, as above, from time to time.</p> <p>“ It is understood and agreed that this option expires and becomes null and void if not accepted within fifteen days and in that event said Bisbee is to immediately return to me said certificates delivered to him in escrow.</p> <p>“ It is further agreed and understood that certain other shares not exceeding five hundred dollars ($500) par valúe of which I am the owner, but title to which may be disputed by other parties, shall come within this option and as soon as a proper transfer can be made the same shall be transferred to said Lander, and in that event said Lander shall pay me a further payment of twenty-five dollars ($25.00) for each share so transferred. It is the meaning and intention of this option that I am to receive twenty-five dollars ($25.00) for each and every share transferred, and it is agreed and understood that in the event of any adjustment between myself and the other present stockholders in which adjustment I may transfer shares to other said present stockholders, this option shall not cover any stocks so transferred.</p> <p>“ In witness whereof I have hereunto set my hand and seal this second day of August, A. D. 1899.”</p> <p>One of the duplicate originals of this agreement was sent to</p> <p>defendant in Maine and the other was sent to Bisbee, pained in the agreement, together with the certificates of stock indorsed in blank by the plaintiff in accordance with the terms of the agreement. On August 22, 1899, Bisbee sent to the plaintiff Lander’s check for $1,000 in the following letter: “ I hand you herewith Wentworth V. Lander’s check duly certified for one thousand dollars, in payment of the first instalment of 40 shares of capital stock Mercer Cell Co. I should have sent it several days ago as it was in my hands.”</p> <p>Mr. Irwin, attorney for the plaintiff, testified that on September 6,1899, he mailed to Bisbee the following letter: “ Several weeks ago I forwarded you certificates No. 30, 31,32, 33 and 34, being (in the total) 200 shares of the capital stock of the Mercer Cell Company, together with an option to W. Y. Lander for the purchase of the same. The time within which the said option was to be accepted expired some time since. My client, Mr. Robert Obery, owner of the stock, left word at my office several days ago asking me to write for the return of the certificates, but I have been away on a vacation and have but just returned here. In view of this delay on my part I ask that you will be good enough to send me the certificates by return mail, as my client has an opportunity to sell the stock at this time. Kindly send the certificates by registered mail, and oblige, very truly yours, J. J. Irwin.”</p> <p>Mr. Irwin further testified as follows : “ Mr. Bisbee never returned the stock certificates. As the result of the correspondence between Mr. Bisbee and myself I called at the defendant’s office in Boston some time in October, 1899. I told the defendant that I had received the first payment in accordance with the terms of the contract, for the plaintiff; that I had turned the same over to the plaintiff and that the second payment was now past due, and I wanted to know whether he was going to pay, or not. I told him that I had reason to believe that at the meeting of the stockholders of the Mercer Cell Company, held in the meantime, that he had voted on this stock that is recited in the option and I asked him to show me the stock certificate book and he refused to do so, stating that he did not have it. I told him that I had a letter, which I think I produced from my pocket at the time and read from the letter in which Mr. Bisbee advised me that the stock certificate book was in the hands of the defendant; the defendant hesitated, when I showed him the letter, and then said that he had just sent the book back. I read the following portion of the letter to the defendant: 1 Mr. Lander is treasurer and has the stock book. I have again written him and asked him to examine and see what certificates Mr. Obery had and what record he has of them. His office is . room 504, John Hancock Bldg., Boston.’</p> <p>“ We had further conversation respecting one of the certificotes of stock. I cannot say which certificate, it was probably 31 or 32. I told the defendant that be must have (from the information that I had from Mr. Bisbeé) two of these certificates of stock. He had paid for one. I also stated that I had been in correspondence with Mr. Bisbee respecting the matter and that he must have this second certificate of stock, and he denied having it and said he had received but one from Mr. Bisbee, and that he did not have the second one; that he would not be forced to pay for the certificates; that he would pay for them when he got good and ready.”</p> <p>The defendant admitted that $1,000 had been paid by him. Sewall A. Dinsmore, a witness for the plaintiff, on cross-examination testified that the contract price of the stock, $25 per share, was supposed to be ,a fair value for the stock at that time. He was then asked the two following questions which were objected to by the plaintiff and excluded by the judge, the defendant excepting: “ Now what was it worth here in the market two months after that time?” and “Was there any change in value ? ” The defendant’s counsel stated that he offered this evidence on the ground that, if the plaintiff should be entitled to recover anything, he would be entitled to recover only the difference between the market value here and the contract value. The judge then said : “ He does not sue to recover for a breach of the contract at all, as I recall it, in his declaratian, except as far as there was a breach of the payment of the specific sum agreed to be paid. So it is either that, or nothing, is it not ? ” This was assented to by the plaintiff’s counsel.</p> <p>At the close of the evidence, the defendant asked the judge to instruct the jury to bring in a verdict for the defendant on the ground that there was no evidence for a jury to consider of the acceptance of the option by the defendant. The judge refused to give this instruction but left to the jury, by consent of parties, the single question whether or not there had been an acceptance of the option by the defendant, or some one expressly authorized for that purpose; the defendant by his counsel not waiving his exception to the refusal of the court to direct a verdict for him.</p> <p>The jury returned a verdict for the plaintiff in the sum of $4,240; and the defendant alleged exceptions to the ruling of the judge excluding the questions to show the market value of the stock, and to his refusal to instruct the jury to bring in a verdict for the defendant.</p>

<p>Constitutional Law, Provisions securing personal liberty. Insane Person, Appointment of temporary guardian without notice.</p> <p>Assuming, that the constitutional provisions securing personal liberty apply to proceedings for the protection of persons alleged to be insane, and that a law authorizing the appointment of a permanent guardian of an insane person without notice would be void, — St. 1900, c. 345, providing for the appointment of temporary guardians of insane persons without notice is constitutional. Such an appointment is founded on necessity and is limited to the time necessary to determine whether a permanent guardian should be appointed.</p> <p>Semble, that under St. 1900, 6. 345, providing for the appointment of temporary guardians of insane persons, although the appointment may be made without notice, it cannot take effect without the knowledge of the party concerned, who may apply at once to have the decree revoked and is entitled to a hearing if he wants it — a right implied from the nature of the case.</p>

<p>Damages, For Breach of Contract, Consequential contemplated by the parties.</p> <p>If goods sold and paid for are not delivered, the measure of damages usually is their market value at the time and place at which they should have been delivered, but special circumstances may make the vendee’s actual loss greater than the sum given by this common rule. When the special circumstances are known to both parties and each has contracted with reference to them, the party in fault justly may be held to make good to the other whatever damages he has sustained as the reasonable and natural consequences of a breach under the circumstances contemplated by the parties. Semble, that a vendor may always avoid such consequential liability by expressly declining to assume it, as in order to hold him his assent must be found from the facts. Whether one who like a common carrier is compelled to render the service for which he contracts would be held to the same liability from his undertaking to do the service</p> <p>with knowledge of the special circumstances and without a protest, quaere. One who agrees to deliver drain pipe to a contractor for use in a ditch already dug, and who is notified that delay in delivery will result in the washing in of the ditch in case of rain, may be found liable for the expense incurred by the contractor in re-digging the ditch, which by reason of delay caused by non-delivery of the pipe had been washed in by rain as anticipated.</p>

<p>Bill in equity by the respective owners of two houses on Woodlawn Street in that part of Boston called Jamaica Plain, to enforce against the defendant, who was constructing on that street a house adjoining that of one of the plaintiffs and opposite that of the other plaintiff, certain restrictions contained in the defendant’s deed, filed September 27, 1899.</p> <p>In the Superior Court the case was referred to a master, who reported, that the defendant had violated one of the restrictions in his deed by constructing a house for more than two families, but by reason of the fact that the restriction would continue in force only until January. 1,1902, and of other facts stated in the report, the plaintiffs were not entitled to equitable relief for the violation of the restriction by way of an injunction ordering the defendant to discontinue and remove his house, but were entitled to equitable relief by way of compensation in damages. The case was recommitted to the master to find and state what sum of money by way of damages, if any, should be assessed against the defendant and in favor of the plaintiffs, as compensation for the defendant’s breach of the restriction, and the master, in a second report, found that there should be assessed against the defendant $168 in favor of the plaintiff McNulty and $224 in favor of the plaintiff Ivarson. The Superior Court by decree ordered the defendant to pay the sums named to the plaintiffs respectively, and the defendant appealed.</p> <p>The material facts found by the master are stated in the opinion of the court.</p>

<p>Sale, Rescission.</p> <p>The defendant in Gloucester gave to a salesman of the plaintiff, a corporation having a cash register factory in Ohio, a written order to ship to him one of the plaintiff’s No. 14 cash registers as soon as possible, and agreed "on the fulfilment of the above” to pay $130, ten dollars in cash and the remainder in twelve notes for ten dollars each payable in successive months. The title was not to pass until the last payment was made. The plaintiff’s Boston agent wrote to the defendant “ This register will he shipped you as soon as received from the factory.” Six days after this and eight days after the original order, the plaintiff's salesman delivered to the defendant one of the No. 14 cash registers, whereupon the defendant paid $10 in cash and gave twelve notes for $10 each as agreed. Three days later the defendant returned the register with a letter stating that it was not what he had ordered, which was true, and demanding the return of his money and notes, and bought elsewhere a cash register of another make. The plaintiff by letter then acknowledged that the register was sent by a mistake and added “This error we will correct in a few days.” Whereupon the defendant refused to receive any register from the plaintiff and demanded the cancellation of the order and the return of the money and notes. Thereafter the plaintiff tendered to the defendant and the defendant refused to receive a register in all respects in accordance with the -order. The plaintiff retained the money and notes, and sued the defendant in contract, alleging that default had been made on one or more of the notes whereby all of them had become due. At the trial by a judge without a jury, the plaintiff contended that the first delivery was intended by the plaintiff as a loan for temporary use until the register ordered could be made at its factory and shipped. The judge found that, whether the first delivery was intended as a loan or not, the defendant did not so understand it but supposed the register was delivered in performance of the order, and, upon ascertaining that it was not such a machine as he had ordered, was justified in returning it and supplying his need elsewhere, and ruled, that the plaintiff did not have the right to compel the defendant to take and pay for the machine tendered later,'and found for the defendant. Held, that this ruling was correct and the finding justified by the facts, and that, even upon the plaintiff’s theory, it had no right upon the first delivery, which by its own account was either a mistake or a temporary loan, to receive the money and notes, and ought to have returned them upon request, and, if the defendant was liable at all for his refusal to receive the machine tendered later, his liability would be for a breach of the agreement to purchase, and not upon the notes which were without consideration.</p>

<p>Petition against the city of Everett for an assessment, undef the provisions of Pub. Sts. c. 51, of the damages sustained by the petitioners by the widening of Ferry Street in Everett, and the taking of certain portions of their land for that purpose, filed August 31, 1898.</p> <p>At the trial in the Superior Court, before Hardy, J., it appeared, that the petitioners were the owners of three large tracts of land at the junction of Broadway and Ferry Street in Everett, consisting of the westerly, northerly and easterly corners. The taking was made September 21, 1897, pursuant to the betterment acts.</p> <p>The petitioners’ evidence tended to show that the damages sustained by the taking of the land and buildings, and consequent damage to the remaining land, amounted to $12,000 or more. The respondent’s evidence tended to show that the damages amounted to $7,000 or less.</p> <p>The petitioners offered to show by evidence, to the form of which no objection was taken, that on April 25, 1899, the city council of Everett accepted a proposal of the petitioners to settle them claim against the city for the takings for the sum of $7,800, with an agreement to abate the betterments then to be assessed upon their property, and that this agreement was passed over the mayor’s veto by the board of aldermen May 8, 1899, and by the common council June 13, 1899; that the petitioners had been willing and offered to settle accgrding to this agreement, but that the city government had neglected and refused to make the appropriation necessary to carry it into effect. This evidence was excluded, and the petitioners excepted.</p> <p>The petitioners offered to show by evidence, to the form of which no objection was taken, that on September 18, 1899, betterments to the amount of $4,232.04 were assessed upon the petitioners’ land. Upon the respondent’s objection this evidence was excluded, and the petitioners excepted.</p> <p>The jury returned a verdict for the petitioners in the sum of $7,599.90; and the petitioners alleged exceptions.</p> <p>St. 1892, c. 355, is the charter of the city of Everett. The material sections are as follows:</p> <p>“ Section 23. The city council shall, subject always to the approval of the mayor, have exclusive authority and power to order the laying out, locating anew and discontinuing of and the making of specific repairs in all streets and ways and all highways within the limits of the "city; to assess the damages sustained thereby by any person and, except as herein otherwise provided, to act in matters relating to such laying out, locating anew, altering, discontinuing or repairing, but in all such matters action shall first be taken .by the board of aldermen. Any person aggrieved by the action of the city council hereunder shall have all the rights and privileges now by law in similar cases allowed in appeals from decisions of selectmen.”</p> <p>“Section 21. Neither the city council nor either branch thereof, nor any committee or member thereof, shall directly or indirectly take part in the employment of labor, the expenditure of public money, the making of contracts, the purchase of materials or supplies, the construction, alteration or repair of any public works or other property, or in the care, custody or management of the same, or in general in the conduct of the executive or administrative business of the city, except as herein required in providing for the appointment and removal of subordinate officers and assistants, and as may be necessary for defraying the contingent and incidental expenses of the city council or of either branch thereof.”</p> <p>“ Section 26. The mayor shall be the chief executive officer of the city, and the executive powers of the city shall be vested in him and be exercised by him either personally or through the several officers and boards in their respective departments, under his general supervision and control.”</p> <p>“ Section 33. Ho sum appropriated for a specific purpose shall be expended for any other purpose, and no expenditure shall be made and no liability incurred by or in behalf of the city until the city council has duly voted an appropriation sufficient to meet such expenditure or liability together with all prior unpaid liabilities which are payable therefrom. . . .”</p> <p>St. 1884, c. 226, referred to in the opinion, is as follows:</p> <p>“ Whenever the authorities empowered to locate, lay out or construct streets, ways or public parks in a city or towm, shall take by purchase or otherwise any land therefor, such authorities may make an agreement in writing with the owner of such land that the city or town shall assume any betterments assessed upon the remainder of such owner’s lands or any portion thereof, for such location, laying out and construction, and such agreement shall be binding on such city or town: provided, such owner shall, on such terms as may be agreed upon with said authorities, release to the city or town all claims for damages on account of locating, laying out and constructing such street, way or park.”</p>

<p>Auditor's Report, Pmna facie evidence. Mechanic's Lien, Construction of finding, Unnecessary joinder of assignee as party, Lien for work under a contract substantially but not completely performed, Assignment of contract without novation.</p> <p>Auditors’ reports are made prima fade evidence by Pub. Sts. c. 159, § 51, and are therefore always admissible upon matters embraced in the order of appointment.</p> <p>On a petition to enforce a mechanic’s lien, the first issue was “Did the petitioners perform the labor and furnish the materials set forth in the petition under the contract therein set forth?” Upon this issue the jury answered “No,” but their answers upon the other issues showed that they meant by this answer merely that the contract had not been fully performed. Held, that the answer should be thus interpreted and was no bar to the establishment of the lien.</p> <p>A builder, who had partly constructed a house under a contract, assigned the contract, and the work thereafter was done by the builder for his assignee. A petition to establish a mechanic’s lien was filed in the names of and verified and signed by both the builder and the assignee. The respondent took no objection to the form of the petition except by a request made at the trial to order judgment for the respondent. The judge ordered the lien established in the name of the builder. Held, that the respondent was not harmed by the fact that the petition was made in both names, that the respondent’s relation to the builder was not changed by the assignment, and, if the assignee ought not to have joined in the petition, his joining was no ground for giving a judgment for the respondent.</p> <p>On a petition to enforce a mechanic’s lien, it appeared by the findings, that a contract for the erection of a building, made by the petitioner with the owner of the land, had been substantially but not completely performed, and also that extra</p> <p>. work had been done in connection with the erection of the building at the request of the owner. A request to enter judgment for the respondent was refused. Held, that the refusal was right, there being clearly a lien for the extra work, and, also, that the petitioner might establish his lien for the amount due him in equity and good conscience for the benefit conferred by him on the landowner by placing the structure on the land, that the claim was within the language of Pub. Sts. c. 191, § 1, a debt for labor and materials furnished, and that the provisions of § 2 in regard to a lien for labor alone had no effect upon it.</p> <p>On a petition by two petitioners to enforce a mechanic’s lien, it appeared, that the labor and materials for which the lien was claimed were performed and furnished under a written contract between a builder, one of the petitioners, and the respondent ; that the work was begun and carried on by the builder up to a certain time, when he assigned his contract to the other petitioner. The assignee employed the builder to complete the contract, and from that date, until work upon the contract ceased, all labor and materials were furnished to the builder by the assignee. Held, that the assignment was not a bar to the lien; that as to the respondent, there being no novation, the builder remained the contractor, and the assignee, in doing or furnishing the work after the assignment, acted under the authority which the contract gave to the builder, so that in effect the builder performed the work, and his lien could he enforced for the benefit of his assignee.</p>

<p>Contract to recover the cost of lumber and labor required in the building of a board sign for advertising purposes, furnislied by the plaintiff under a written contract. Writ dated July 25,1899.</p> <p>At the trial in the Superior Court, before Hopkins, J., it appeared, that the defendant was a retail dealer in liquors, and occupied a building on the corner of Columbus Avenue, Church and Tennyson Streets, in Boston, having a lease of the entire building, and it was on the roof of the building that the sign in question was erected. A letter of the defendant containing the alleged contract was put in evidence and read as follows :</p> <p>“ June 23, 1896. W. B. Holloway, Manager, Rochester Brewing Co. Dear Sir, — Believing it to our mutual advantage that a large display sign be erected on top of building now occupied by me, to read 1 Headquarters for Rochester Brewing Co.’s Lager Beer,’ with this end in view I have been granted permission by the owners of the building to have such a sign erected, and would request that you have a tight board sign placed on roof of building, showing the four sides, to stand erect about fifteen feet, reading as stated above. It is, of course, understood that I draw no other domestic lager beer than that brewed by the Rochester Brewing Co. during the period of my present license. I also understand that this sign, as well as all other signs placed on or in the building occupied by me under the firm name of L. J. Killian & Co., advertising Rochester beer, remain the property of your company and can be removed by you or them at any time which you may elect. Should you find it necessary át any time, by reason of my not drawing your beer, to remove the special board sign in question and should objections of any kind be raised by the owners of the building to having said sign torn down, I hereby agree to reimburse you or your company to the amount of the cost of the labor and lumber required in the building of such a sign, and hereby grant you the privilege to obliterate the sign matter by repainting. I would thank you to give this matter your immediate attention. Respectfully, L. J. Killian.</p> <p>“ P. S. In reference to my reimbursing your company for the labor and lumber used in the within mentioned sign, I mean to convey the idea that only in case I should use the board for new sign or advertising purposes, that you are then to be reimbursed to the extent of its cost as above stated. L. J. Killian.”</p> <p>There was evidence for the plaintiff that it provided a sigh of the kind stipulated for in the written contract, and paid for- the complete sign, including the paint, $365; that subsequently in May, 1899, the defendant, being still the lessee of the entire building, but not the occupant of the whole, ceased to purchase beer brewed by the plaintiff company, and began to purchase other beer made by the Harvard Brewing Company, and that some time before the date of the writ the original advertisement on the sign was obliterated and words advertising the Harvard Company’s beer were substituted.</p> <p>The defendant, called as a witness by the plaintiff, testified in substance as follows: That he was the lessee of a building on the corner of Columbus Avenue, Church and Tennyson Streets, upon which the sign in question was erected ; that he made arrangements for the sign through one Holloway, who was, at the date of the contract in question, the Boston manager for the plaintiff company; that he signed the contract in suit; that the sign in question was erected on three sides of the building, and that subsequently, during his absence in Europe, between May 31 and July 1,1899, the words originally on the sign were obliterated and the advertisement of the Harvard Company’s beer was painted on; that the Harvard Brewing Company’s beer is not the Rochester beer ; that during his absence in Europe his brother, Thomas Killian, acted as his agent and representative; that he never had permission from the plaintiff to change the advertisement; that on May 31, 1899, when leaving for Europe, he had not exactly severed his relations with the plaintiff, but had made arrangements to take Harvard beer and expected to cease to use the Rochester beer; that he ceased to buy beer from the Rochester Brewing Company about the 27th or 28th of May, but did not stop using it then as he had quite a lot on hand ; that at the same time he began buying Harvard beer, and had continued using Harvard beer down to the present time; that on the day he left for Europe he bad a conversation over the telephone with one Albrecht on behalf of the plaintiff company, in which Albrecht requested that the plaintiff be allowed to take its signs, but the defendant told him he was going away, and asked him to let the matter remain until he returned on the first of July, to which Albrecht agreed; that the defendant had no conversation with Albrecht since his coming home ; that the first he knew of the new advertisement was seeing the sign from the street when he came back; that he then saw his brother and had a talk with him about it; and that he thought he could do anything about the sign he saw fit.</p> <p>Holloway, called as a witness by the plaintiff, testified on cross-examination, that the sign in question was placed there to advertise the beer of the Rochester Brewing Company. He was then asked the following question by the defendant’s counsel: “ And it was considered then, was it not, as being a place of value as an advertising place?”</p> <p>This was objected to and excluded by the judge, and the defendant’s counsel excepted to the exclusion. This evidence was offered to show that the sign was for the benefit of the plaintiff, and was of no benefit to the defendant whatever, and that it was a valuable space for advertising purposes.</p> <p>At the conclusion of the evidence, the defendant offered to prove, by the witness Holloway, that at the end of the fiscal year of 1896, which was the month of September of that year, the cost of the sign in question was charged off on the plaintiff’s books, and that it was no longer considered an asset of the company. This testimony was excluded, and the defendant excepted.</p> <p>The defendant requested the judge^to rule that the question as to whether or not the conditions of the contract were broken by the defendant and complied with by the plaintiff to an extent that would allow the plaintiff to recover, should be left to the jury, and further asked the court to make the following rulings: 1st. That this contract expired the first day of May, 1897, the license year mentioned therein. 2d. That the plaintiff can recover in this suit only for a breach of the contract during that year. 3d. That the sign in question, by the terms of the contract, became on May 1, 1897, the property of the defendant. 4th. That the defendant, if liable at all, is liable only for the cost of the carpenter’s labor and the lumber used in the erection of the sign.</p> <p>The judge refused to give any of these rulings, but in reference to the fourth request instructed the jury that the plaintiff, if entitled to recover, could recover for the cost of the complete sign, less the cost of the paint stock. The defendant’s counsel excepted to this refusal and instruction.</p> <p>The jury returned a verdict for the plaintiff in the sum of $341.25 ; and the defendant alleged exceptions.</p>

<p>Writ op Entry, Tenant’s compensation for improvements, Tenant’s liability for net rental value during occupation. Practice, Civil, Double costs.</p> <p>Under Pub. Sts. c. 173, § 18, giving the tenant in a writ of entry compensation for improvements if he has held the premises under a title which he had reason to believe to be good, a tenant cannot be allowed for improvements made after the bringing of the writ.</p> <p>Under Pub. Sts. c. 173, § 14, a demandant prevailing is entitled to the net rental value of the premises during the time they are detained by the tenant, including their detention pending the tenant’s motion for a new trial.</p> <p>In this case it was adjudged that the exceptions were frivolous and appeared to have been intended for delay, and double costs were awarded against the tenant *v!'- from the time when the exceptions were alleged by him, with interest from the same time at the rate of twelve per cent a year upon the damages.</p>

<p>Conversion, Recoupment of damages. Fixtures. Damages, Remoteness.</p> <p>In an action of tort for the conversion of articles of plumbing taken from an unfinished house of the plaintiff by a plumber on the failure of the contractor who employed him, it appeared that, after work upon the house had been abandoned by the contractor, the plaintiff caused the house to be completed, and that §1,500 of the contract price had not been paid by the plaintiff to the contractor. The defendant offered to show, that all the cost of plumbing work done under the plaintiff’s direction after he took possession, including the replacing of the articles removed by the defendant, was paid for out of this §1,500. The evidence was excluded. The defendant contended that the plaintiff by the application of the §1,500 to the plumbing had recouped his damage from the contractor and could not recover it again. Held, that the evidence rightly was excluded. The §1,500 belonged to the plaintiff and not to the contractor and its application to one purpose or another was immaterial.</p> <p>Where, as part of the construction of a new house, articles of plumbing are affixed to the structure by a plumber, under a contract to put in the plumbing, they become a part of the realty and cannot be removed by the plumber on the failure of the contractor who employed him.</p> <p>In an action of tort for the conversion of articles of plumbing taken from a house, which is in process of erection for the purpose of letting it to tenants, the plaintiff may recover the rental value of the house during any period of delay which was caused by the acts of the defendant.</p>

<p>Pleading, Form of demurrer. Contract, Construction.</p> <p>Under Pub. Sts. c. 167, § 12, it is sufficient to allege as a cause of demurrer for a defect of substance, that the declaration does not state a legal cause of action. The words “substantially in accordance with the rules contained in this chapter” need not be added unless the defect relied on is one of form.</p> <p>The following provision, omitting unessential words, was printed on the back of all the certificates of stock of a certain company: “ Should the person to whom this certificate is issued desire to sell any of his shares of stock, he shall cause such sitares to be appraised by the directors of this company, which it shall be their duty to do on request, and shall thereupon offer the same to them for the use of the company at such appraised value; and if said directors shall choose to take such shares for the use of the company, such person shall, upon the payment or tender to him of such appraised value thereof, and the dividends due thereon, transfer and assign such share or shares to said company; provided that the said directors shall not be obliged to take such shares at the appraised value aforesaid, unless they shall think it for the interests of the company; and if they shall not, within fifteen days after such shares are offered to them in writing, take the same and pay such person, therefor the price at which the same shall have been appraised, such person shall be at liberty to sell and dispose of the same shares to any person whomsoever.” One of the original stockholders requested the directors of the company to appraise his shares under the foregoing provision. They refused to do so, whereupon the stockholder sold his shares at auction and sued the company on its alleged contract to have the shares appraised on such request, alleging that by reason of the refusal of the directors to appraise his shares they had sold for much less than their true value. Held, on demurrer, that the defendant had not made the agreement alleged, but that the plaintiff had agreed to cause his shares to be appraised by the directors, and, what the declaration alleged had not been done, was the thing that the plaintiff agreed to cause to be done. Held, also, that the purpose of the appraisal was to fix the price to be paid for the stock, if the company should elect to take it, and that the stockholder had no right to an appraisal unless the stock was to be taken for the company.</p>

<p>Frauds, Statute of, Representations concerning the credit of another. Evidence, Materiality, To show damages in action of deceit.</p> <p>The requirement by Pub. Sts. c. 78, § 4, of a writing, to charge one upon a representation concerning the character or credit of another, applies only when the purpose of the representation is to enable the person recommended to obtain credit, money or goods.</p> <p>An action can be maintained for oral misrepresentations made by an investment broker concerning the credit of a certain investment association in order to induce the plaintiff to place a sum of money in the defendant’s hands for investment.</p> <p>In an action for false representations of the defendant whereby the plaintiff was induced to place $5,000 in the defendant’s hands for investment; it appeared, that the plaintiff intrusted the sum named to the defendant for investment and thereafter received from him certificates purporting to represent shares in an investment association. The plaintiff was allowed to testify that she received $20 in July, $100 in October and $100 the next January on her investment, and nothing more; also that she had endeavored in every manner to realize on her investment, by way of collection, without success. She'was also allowed to testify, that thereafter the defendant advised her to employ a New York lawyer to compel one S. to return to her her money, this evidence being admitted to show an admission by the defendant as to the value of the certificates. Held, that, on the question of damages, it was competent for the plaintiff to show what she had paid the defendant and what she had received in return, and that the admission of the defendant was competent on the question of' the value of the certificates.</p>

<p>Writ op ENTRY to recover a certain parcel of land on Marsh Street in that part of Boston called Dorchester, dated September 13,1899.</p> <p>In the Superior Court the case was heard by Bráley, J., on an agreed statement of facts substantially as follows :</p> <p>The tenant claimed title to the premises by a tax deed duly recorded, and it was agreed that all of the proceedings of the assessment and sale were valid, and that the sale took place on October 12, 1893. The demandant waived all claim to damages.</p> <p>It was agreed that on January 21, 1897, the demandant was the holder of a recorded mortgage upon the premises, given by Cornelius and Margaret Deasy to Samuel Babcock, dated March 28,1878, which mortgage had been assigned to the demandant by sundry mesne conveyances duly recorded ; that, on January 21,1897, the demandant for the first time had actual notice of the existence of the tax title through receiving a postal card, which read as follows : “ 55 Richfield Street, Dorchester, January 21. I find you have a mortgage on a piece of marsh land on Marsh Street for $1,000. The property was sold for tax. I suppose you know of it, but tell me if you want to redeem. I would like to hear from you at once. The mortgage was given as much as twenty years ago, but by different assignments was at last held by you. Benjamin Lancy.”</p> <p>It was further agreed that on March 1, 1898, the demandant foreclosed his mortgage and sold his premises to Walter H. Baldwin, and made a conveyance to Baldwin under the power of sale contained in the mortgage ; that on May 17,1898, Baldwin conveyed the premises, by deed duly recorded, to the demandant; and that on June 7, 1898, the demandant wrote to the tenant as follows: “ Benjamin Lancy, Esq., Provincetown, Mass.: Dear Sir, — I wrote you some time ago in regard to redeeming a certain estate from tax title on which I hold a mortgage on estate Glide Street, Dorchester. I have received no reply and have sent to the house twice and could not find you. Will you kindly let me hear from you when I can see you, so that the matter can be settled. Yours respectfully, Frank M. Perry, 194 Washington Street, Boston.”</p> <p>On June 27, 1898, the demandant wrote the tenant as follows: “Mr. Benjamin Lancy: My dear Mr. Lancy^— Your letter received. In reply would say that I did not know that you had paid the intervening taxes. I supposed that they had been paid by the owner of the estate. If you will send me the amount in total that is due you up to a week from to-day, and will have the deed that I sent you executed, I will send you the funds. In regard to your calling here, would say that I sent a messenger to your house with ample funds, four times, to pay any claims that you may have on this estate, but was unable to find you, so that all I could do-was to request you to call, which I did. Please advise me as soon as you can the amount due so that I can send a check and close the matter. Yours respectfully, Frank M. Perry.”</p> <p>Thereafter the demandant received from the tenant the following letter: “East Barnard, Vermont. F. M. Perry: I can sell you the marsh land, but you are not entitled to redeem. July 15,1898. Benj. Lancy.”</p> <p>It was also agreed, that the demandant had not made any conveyance of his title, neither had the tenant made any conveyance of his tax- title; that the tenant had had no possession of the premises other than arises by force of law from the existence and holding of his tax title ; that the demandant had necessary funds at all times since July 15, 1898, to pay to the tenant all sums paid by him for the tax title, together with interest thereon, and legal costs, and any and all sums paid by the tenant for accruing taxes, with interest; and that the demandant had never made any effort to pay to the city treasurer of Boston any sum which the tenant was entitled to receive under his tax title.</p> <p>The case was tried without a jury, and it was agreed between the parties, that the judge should determine only the questions whether the writ should abate upon the foregoing facts as to possession, and whether the demandant, on the foregoing facts, had made a tender on July 15, 1898, sufficient to entitle him to a release of the premises from the tax title, or stood in the same position as if he had actually made such a tender or payment; and that if the court should give judgment for the demandant, the demandant should pay the tenant $175.</p> <p>The Superior Court gave judgment for the demandant; and "the tenant appealed.</p>

<p>Devise and Legacy, Construction.</p> <p>A testator died seised ot four parcels of land, leaving a widow, one son and one daughter. One half of one parcel of land, on which was his house, he gave to his son when he should arrive at the age of twenty-one years and gave him the remaining half on the death of the testator’s widow. He also gave his son another parcel either outright or on the same terms. The remaining two parcels he gave to his daughter when she should arrive at the age of twenty years. Then followed this clause: “My personal estate to be divided in the manner following after my estate is settled, my wife to have one half, and my two children the remainder in equal shares, if they live to the age of twenty-one years, and if my children should die childless what remains of my estate both real and personal, after the decease of my wife, to descend to the heirs of G. D.” Both the son and daughter survived the widow and both died childless after reaching the age of twenty-one years. Held, that the contingency intended to he described was the event of the testator’s children dying childless before reaching the age of twenty-one years, and that G. D. took nothing.</p>

Tort under the employers’ liability act, St. 1887, c. 270, for injuries to the plaintiff while in the defendant’s employ by reason of alleged defective ways and works of the defendant furnished for doing certain work in the erection of a building at the corner of Brimmer and Pinckney Streets in Boston. Writ in the Municipal Court of the City of Boston dated May 2,1898.

<p>Fraud, as against creditors. Evidence, Relevancy, Burden of proof. Practice, Civil, Rulings and Instructions.</p> <p>In a real action to recover land conveyed to the tenant through a third person by her husband, on the ground that the conveyance was fraudulent as against creditors, the demandant asked the tenant’s husband “ How much were you indebted in 1898 at the time of your examination as a poor debtor 1 ” and stated that his offer was, to show that the witness at the time of the examination referred to had no debts other than the claim of the bank represented by the demandant. Held, that the question properly was excluded, the fact sought to be proved having no legitimate bearing on the question in issue.</p> <p>In a real action, by a judgment creditor representing a debt established by a suit in Kansas, to recover land conveyed to the tenant through a third person by her husband, on the ground that the conveyance was fraudulent as against creditors, there was evidence, that at the time of the conveyance the grantor had other property worth several times the amount of the claim of the demandant’s predecessor in title, that his other indebtedness was small, that some of his property worth several thousand dollars stood recorded in his name, and that the conveyance was made in pursuance of a promise to his wife, given before the bringing of the original suit in Kansas by the demandant’s predecessor, at which time the land stood in the grantor’s name and could have been attached here, the demandant’s predecessor electing to sue in Kansas and to attach the grantor’s real estate there. Held, that, on this evidence, a request for a ruling that the demandant was entitled to a verdict as a matter of law rightly was refused, the question of fraud-being one not of law but of fact for the jury.</p> <p>It is not as a matter of law fraudulent as against a creditor, for the owner of certain land who has no other real estate of sufficient value to satisfy the creditor’s claim, but who has other property consisting of stocks, bonds or money in his possession, to convey the land to his wife without informing the creditor of his ownership of the personal property. The law does not compel him to go to his creditor and tell him just what bonds and securities he has. Whether in such a case there was any fraudulent concealment is a question of fact for the jury.</p> <p>The fact, that the demandant in a real action has made out a case sufficient to entitle him to go to the jury, does not throw the burden of proof upon the tenant.</p> <p>A judge properly may refuse to give a ruling which requires him to pick out particular facts and instruct the jury as to their effect.</p>

Contract by an actress for breach of an alleged oral agreement to employ the plaintiff at the defendants’ theatre, for the fall and winter season of 1898 and 1899, thirty-five weeks, at a salary of $100 a week. Writ dated September 19,1898.

Petition by one of the two heirs at law of Dennis Mahoney against the other for partition of certain real estate in Hyde Park, filed in the Probate Court for the County of Norfolk April 1, 1898. In the Probate Court, Flint, J., ordered partition as prayed, and the respondent appealed.

Tort to recover for injuries to the plaintiff, by being thrown out of a wagon of the defendants through the alleged negligence of the defendants’ driver. Writ dated June 15,1899. At the trial in the Superior Court, before Q-askill, J., it appeared, that at the time of the accident the plaintiff was a carpenter in the employ of one Bates, a jobbing carpenter, who was the proprietor of a carpenter shop at 64 Broad Street in Boston.

<p>Tort for injuries alleged to have been incurred by the plaintiff from the negligence of the conductor of the defendant while removing a drunken passenger from a car of the defendant in which the plaintiff was a passenger. Writ dated January 18, 1900'</p> <p>In the Superior Court, Sherman, J., refused to rule, at the request of the defendant, that there was no evidence which would warrant a jury in finding a verdict for the plaintiff, and left the case to the jury, who returned a verdict for the plaintiff in the sum of $600. The defendant alleged exceptions. The case is fully stated by the court.</p>

<p>Petition to enforce a mechanic’s lien for services performed by the petitioner as an architect on a building on Massachusetts Avenue in Cambridge owned by the respondent, filed December 7, 1899.</p> <p>The Superior Court made a decree establishing the lien for $2,325 damages and $131.98 costs. From this decree the respondent appealed.</p> <p>The issues submitted to the jury in the Superior Court and the answers to them were as follows:</p> <p>“ 1. Did the respondent enter into a contract with the petitioner as set forth in the petitioner’s petition ? The jury answer, Yes. 2. Was the labor performed as set forth in the petitioner’s account annexed? The jury answer, Yes. 3. What is the value of said labor ? The jury answer, $2,325. 4. Did the</p> <p>petitioner within thirty days from the twenty-fifth day of October, 1899, file in the Middlesex South District Deeds a statement of a just and true account of the amount due him with all just credits given ? The jury answer, Yes. 5. At the time said statement was filed by said petitioner did he knowingly and wilfully claim more than was his due? The jury answer, No.”</p> <p>The only contention of the respondent was that the answers to the above issues alone were not sufficient to justify the decree.</p>

<p>Marriage, Between slaves. Child, Statutory legitimation. Conflict of Laws, Exterritorial effect of law affecting personal status. Slave, Escaping to free State. Disseisin.</p> <p>Whatever may be the presumption as to the common law in this country concerning marriages between free persons, there is no presumption that the common law of Virginia in 1846 gave any effect to a ceremony of marriage between slaves performed by the master of one of them followed by a cohabitation of eight years.</p> <p>The statutory legitimation of a child can be brought about without the fact or fiction of a marriage,' by a simple fiat. Per Holmes, C. J.</p> <p>A statute of Virginia legalizing the marriages of colored persons living together as husband and wife on February 27, 1866, provided, that, where the parties had ceased to cohabit before that date, all the children of the woman recognized by the man to be his should be deemed legitimate. Before the date named in the statute a man slave left his slave wife in Virginia and acquired a domicil in Massachusetts. Later he visited Virginia and there recognized as his a child of his slave marriage domiciled there. The father died intestate, domiciled in Massachusetts and leaving property here. Whether the Virginia child was entitled to the distributive share of a legitimate child in Massachusetts, or whether in order that the statute should have such exterritorial effect both parties must have been domiciled in Virginia when the act of recognition was performed, even if the domicil of the child and the bodily presence of the father would be sufficient to make the statute operative in Virginia, quaere.</p> <p>By the common law a disseisor got a title, although by wrong, and left only a right of action to the disseisee. So, a runaway slave, so long as he was defacto free, though liable to recapture, had the civil rights of a free person in a free State to which he had escaped. Per Holmes, C. J.</p> <p>Before the abolition of slavery a marriage in this Commonwealth of a fugitive slave was lawful while he remained here, whatever effect recapture might have had upon it. Such a marriage continuing after the abolition of slavery is not to be disturbed.</p>

<p>Devise, Construction. Trust, Resulting, Powers of trustee.</p> <p>A devise to the testator’s children gives a vested interest unless the will shows a contrary intention.</p> <p>When by a will real property is given to several persons by name to be shared equally among them, they take as tenants in common and not as joint tenants or as a class, and if one of them dies before the testator his share lapses and does not go to the survivors, unless they are the heirs at law of the testator.</p> <p>A testator devised all his real estate to a trustee, for the equal benefit of his five children named, who were to receive the net income equally during a certain period, at the termination of which, the trustee was to divide the property held by him under the trust equally among the testator’s “ said children and their respective heirs and assigns.” One of the children died before the testator, and another of them died after the testator but before the time of distribution. Held, that the gift was not to the children as a class with right of survivorship, but that the children took a vested interest as tenants in common. Consequently, that the share of the child who died after the testator went to the executor of that child, and that the share of the child who died before the testator lapsed, and was held by the trustee upon a resulting trust for the benefit of the testator’s heirs at law.</p> <p>A testatrix having one son and four daughters devised all her real estate to her son, in trust, to hold, manage and improve the same for twenty years, to distribute the net income equally among all her children, and at the termination of the twenty years to divide the property equally among her children. The will also contained this clause: “ And I hereby further authorize and empower my said trustee at any time before the said period of distribution, if he deems it for the best interest of all concerned so to do, to divide the trust property of whatsoever consisting, or the same or any portion thereof to sell at public or private sale and the proceeds to divide equally among my said children and their respeclive heirs and assigns, and to terminate this trust.” The will, after naming the son as devisee of the residue of the estate in trust, did not mention him again by name as trustee, but gave the powers thereunder to “ my trustee,” “ my said trustee,” “ such trustee ” or “ the trustee under the trust." The will contained numerous other powers attached to the trust and not personal to the trustee named in the will. The son died nearly ten years before the testatrix, who died without making any change in her will. Trustees under the will, appointed by the Probate Court, asked for instructions as to their power to divide the property before the expiration of the twenty years, alleging that they deemed it for the best interest of ail concerned to make the division, the children being all of age and all but one desiring it. Held, that the trustees had the power to make immediate distribution of the property, having, under Pub. Sts. c. 141, § 6, the same powers, rights and duties as if they had been originally appointed. The cases holding, that a power given to the executor of a will cannot be exercised by an administrator de bonis non with the will annexed, have no application to this case.</p>

<p>Replevin for a car load of lumber sold by the plaintiff to one George A. Paul and claimed by right of stoppage in transitu, the action being defended by the trustee in bankruptcy of Paul. Writ dated August 30, 1898.</p> <p>In the Superior Court the case was tried without a jury before Richardson, J., who found for the plaintiff, and, with the assent of both parties, reported the case for the determination of this court. The terms of the reservation, as well / as all the material facts and rulings, are stated in the opinion ■of the court.</p>

<p>Bill in equity by ten taxpayers of the town of Scituate, to restrain the members of a committee appointed by the town to build a new schoolhouse, the treasurer of Scituate, and the inhabitants of that town, from carrying out a contract with Thomas F. Bailey and Son, for building a new schoolhouse in the town, and from paying any money on account of the contract, filed November 5, 1900.</p> <p>At the trial in the Superior Court, before Bráley, J., without a jury, it appeared, that at the time the contract was made Thomas F. Bailey, one of the contractors, was a selectman and one of the building committee of the town of Scituate, and by his vote in the committee made a majority of one accepting the bid of Thomas F. Bailey and Son to build the schoolhouse, that firm consisting of himself and his son, and their bid not being the lowest.</p> <p>The plaintiffs asked for a ruling, that the contract made by the committee with Thomas F. Bailey and Son was void as against public policy. The judge refused so to rule, and made the following findings: That the town had not exceeded the limit of its indebtedness ; that it had duly accepted the gift of Emeline S. Jenkins [to give land and money for the schoolhouse] ; that the town had ratified the action of the committee appointed to complete the schoolhouse, and appropriated sufficient money to cover the contract made by the committee; that the action of the committee and of Thomas F. Bailey in the making of the contract was not corrupt; and that there was no intention on the part of any of the parties to act otherwise than for the best interests of the town. He made a decree dismissing the bill, and, at the request of the plaintiffs, reported the case for the consideration of this court, such decree to be entered as law and justice might require. The facts appearing by the report are stated in the opinion of the court.</p>

<p>Tort for an alleged assault upon and unlawful arrest and imprisonment of the plaintiff on July 28, 1896, at'Waterbury, in the State of Connecticut. Writ dated September 14, 1896.</p> <p>At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the defendant, and the plaintiff alleged exceptions, which are described in the opinion of the court as also are the evidence and rulings to which they relate.</p>

<p>Tort for breaking and entering the plaintiff’s close. Writ dated May 28, 1898.</p> <p>At the trial in the Superior Court, before Stevens, J., without a jury, it appeared that the issue was as to the true boundary line between the adjoining lots of the plaintiff and the defendant on Jewett Street in Lowell. The tract in dispute contained about three hundred and thirty-seven square feet, and was a long wedge-shaped piece of land, nine feet across at the westerly end and coming to a point at the easterly end. The plaintiff alleged the true boundary to be the southerly line of the wedge running westerly and the defendant alleged it to be the northerly line running westerly after they diverged from a point in the westerly line of Jewett Street, which was conceded by both parties to be the true point of division between them on Jewett Street. On the line as claimed by the defendant there stood at the time of the trial the fence hereafter referred to.</p> <p>The lots of the plaintiff and defendant were formerly parts of a lot of land owned by one Varnum under whom both the plaintiff and defendant claimed. On May 7, 1878, Varnum conveyed the plaintiff’s. lot to one Mrs. Hargrave, who owned and occupied it until September 17, 1891, when she conveyed it to the plaintiff. The defendant took his deed from Varnum May 10, 1878, three days later than the plaintiff’s grantor.</p> <p>The description in the deed from Varnum to Hargrave was as follows: “ A certain parcel of land with the buildings thereon situated on the westerly side of Jewett Street in said Lowell, being bounded as follows, to wit: beginning at the northeasterly corner of the premises on Jewett Street, thence running southerly along said Jewett Street thirty-six feet and six inches to land of my own; thence westerly along land of my own about seventy-five feet to land of McNabb ; thence northerly along said McNabb’s about thirty-two feet to Durant’s land; thence easterly along Durant’s land about eighty-three feet to the point of beginning.”</p> <p>The description in the deed from Hargrave to the plaintiff was in substance the same, including the words: “ thence northerly along said McNabb land about thirty-two feet to land now or formerly of Durant ”; describing the westerly line of the lot.</p> <p>It appeared, from the plan used at the trial and other evidence, that if the westerly line of the plaintiff’s lot was made thirty-two feet, it would begin nine feet on the defendant’s side of the fence mentioned above and would establish the plaintiff’s claim to the disputed wedge-shaped portion of the lot.</p> <p>The plaintiff introduced evidence tending to show that shortly after his purchase in 1891, he notified the defendant that he claimed title to the tract of land in dispute, and in April, 1898, entered upon it and moved the fence then standing on the line as claimed by the defendant to the line as claimed by the plaintiff. In the following May the defendant forcibly entered upon the tract, took down the fence and replaced it on the old line, as it stood before it was moved by the plaintiff.</p> <p>The defendant testified that at the time of the conveyance to him a fence stood on the old line running westerly from Jewett Street, the entire length of -the lot, that he and Mrs. Hargrave had always treated this fence as the division line between the two lots, that both had repaired it at different times, and that lie and Mrs. Hargrave had filled in their respective lots up to the line of the fence and had raised the fence but had not changed the location. The plaintiff objected to the admission of this evidence for the purpose of showing the construction, put by the defendant and plaintiff’s grantor upon the deeds, and requested that, if admitted, it should be considered only on the question of adverse use. The judge refused to rule as requested, and admitted the evidence to show the construction placed upon the deeds by the defendant and the plaintiff’s grantor. To this admission and the refusal the plaintiff excepted.</p> <p>The defendant also testified that his deed from Varnum was delivered to him on May 10, 1878, elsewhere than on the premises, but that a few days before its delivery, in company with Varnum, he went upon the premises, and through the house and yard, and that Varnum then pointed out to him the fence as the boundary. He moved into the house the day after the delivery of the deed. The plaintiff objected to this evidence, and on its admission excepted.</p> <p>Mrs. Hargrave, the plaintiff’s grantor, was called as a witness by the defendant, and among other things testified that she moved into the house two or three days before her deed was delivered to her; that the fence then was on the old line, and had remained there up to the time she sold to the plaintiff; that her deed was delivered on the premises; that she had always treated the fence as the division line between her land, and the land of the defendant; that she had repaired it at various times; that she had filled in her land up to the fence at the time the defendant filled in his, and that the defendant with her consent had raised the fence at that time, but had not changed the location. The plaintiff objected to the admission of this evidence for the purpose of showing the construction put by the witness and the defendant upon the deeds of Varnum to Hargrave and Varnum to the defendant, and requested that, if admitted, it should be considered only on the question of adverse use. The judge refused to rule as requested, and admitted the evidence to show the construction placed upon the deeds by the defendant and the plaintiff’s grantor. To this admission and refusal to rule the plaintiff excepted. There was no other evidence bearing upon the position of the fence, or material to the issue involved.</p> <p>At the close of the evidence, the plaintiff asked for five rulings, two of which the judge gave, and refused to give the following: 1. That on all the evidence in this case the plaintiff’s lot is bounded on the south by the new line claimed by the plaintiff. 3. That the language of the deeds of Yarn am to Hargrave and Hargrave to the plaintiff is not of doubtful construction or ambiguous, and the acts of the parties at the time of conveyance and subsequently are not admissible to show-intention. 5. The language in the deed from Yarnum to Hargrave which defines the westerly line of the Hargrave, or plaintiff’s lot, at “ about thirty-two ” feet established that line as thirty-two feet from Durant’s land, unless from other portions of the deed it is clear that it was the intention to carry that line only as far as the old fence, and that no such intention can be gathered from the deed.</p> <p>The rulings requested by the plaintiff which were given by the j udge were as follows : 2. That no such use of the land in dispute is shown by the defendant as to warrant a finding that he had acquired title to the same by adverse possession. 4. That paroi evidence of the acts and declarations of the defendant’s grantor made to him at the time of transfer is inadmissible and cannot aid the court in fixing the disputed line.</p> <p>The judge found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract to recover the amount paid by the plaintiff to one Andrews, a livery stable keeper, on a judgment obtained by him against her in Andrews v. Keith, reported in 168 Mass. 558, with a count on an account annexed to recover a reasonable amount for the board of a horse from July 23,1895, to February 6,1896. Writ dated January 20, 1898.</p> <p>At the trial in the Superior Court, before Bond, J., the following facts appeared: The defendants were husband and wife and were the owners of the horse, which they delivered to the plaintiff under the following agreement, signed by both defendants : “ Memorandum of Agreement made this day of September the 17th, 1894, between C. S. Keith and Mr. and Mrs. Henry de Bussigney. Miss C. S. Keith hereby agrees to take one horse belonging to said Mr. and Mrs. de Bussigney to keep and board from the said above date to the first day of June, 1895, provided said horse is suitable for ordinary family use. Said horse at all times to be properly fed and cared for, and it is further agreed that the said C. S. Keith is to be in no way responsible for the safety of said horse except in case of neglect or abuse, and to report any sickness or trouble that may occur to its owners, Mr. and Mrs. Henry de Bussigney, within a reasonable time. Compensation to Miss C. S. Keith to be the use of said horse during the above specified time and none other. Sharon, September 17, 1894.”</p> <p>At the end of the term the plaintiff sent the horse back to the defendants, who refused to receive it, declaring that the plaintiff had injured it by want of proper food and care and by over use; and after some correspondence with the defendants the plaintiff on July 28, 1895, put the horse in the livery stable of Andrews, and notified the defendants that they would be responsible for its board. The defendants refused to be responsible for any expense whatever in keeping the horse and suggested that the plaintiff should kill it. Andrews kept the horse until February 6, 1896, and then brought action against the plaintiff for its keep, and recovered in Andrews v. Keith, mentioned above.</p> <p>The defendants introduced evidence of one Richards, who was employed by the plaintiff and had charge of the hortfe under the plaintiff’s direction, who testified to the use he had made of the horse in ploughing greensward and driving it with heavy loads to Boston on successive days.</p> <p>The defendants excepted to the admission of the record of the suit of Andrews v. Keith, to the exclusion of evidence offered by the defendants in regard to the condition of the horse when left with the plaintiff and when offered back to the defendants, to the refusal of the judge to order a verdict for the defendants, and his refusal to give the following rulings:</p> <p>1. The plaintiff, when she took the horse under the agreement, must keep within the terms of the bailment as set out in the agreement. If she violated its terms, and the horse was injured, she can have no action against the defendants for consequences that grew out of her violation of the agreement, and if the horse, by her putting it to service not contemplated in the agreement, depreciated in value, the defendants would be under no obligation to receive it at the end of the term of hiring, and no action could be maintained against them by the plaintiff for the care, custody or keeping of the horse, after the expiration of the time mentioned in the agreement. 2. One provision in the agreement on the part of the defendants is that the horse should be suitable for ordinary family use. The plaintiffs use of the horse was, therefore, limited to that purpose, and as there was no agreement that it was suitable for any other purpose, if it was used for any other purpose, and through that use depreciated in value, although such use might be no harder or more severe than the family use would be, the defendants would be under no obligations to take it back, and no action could be maintained against them for its board or care, after the expiration of the time mentioned in the agreement. 3. The plaintiff, after the defendants refused to receive the horse, even if there was no fault on her part, and she had performed all the obligations imposed upon her by law or by the contract, should do with it as persons with ordinary experience and prudence would have done with it, having reference to its value and all other circumstances. If the horse was of little value, the fact that the defendants refused to receive it would not justify the plaintiff in keeping or boarding it for a long time, or at a relatively great expense, either in her own stable or elsewhere. She should, after a reasonable time, have taken further steps to determine what disposition should be made of the horse, or have taken means to dispose of it as she could have done under the statutes of this Commonwealth.</p> <p>The judge refused so to instruct the jury, and stated to counsel that the only question for the jury to determine was what was a reasonable sum for the keeping of the horse after the time when the plaintiff offered to return it and the defendants refused to receive it back, which sum was thereupon agreed on by the parties. Also, that the plaintiff could not recover the costs which she had been obliged to pay in the suit of Andrews v. Keith. The judge also ruled that no evidence had been introduced which showed any change in the title to the horse, to which counsel for the defendants assented.</p> <p>The jury returned a verdict for the plaintiff for the amount agreed; and the defendants alleged exceptions.</p> <p>The case was submitted on briefs at the sitting of the court in November, 1900, and afterwards was submitted on briefs to all the justices.</p>

<p>Award, Validity of submission, of award. Practice, Civil, Appeal.</p> <p>The decision in Miles v. Schmidt, 168 Mass. 339, that an agreement to submit all disputes to a tribunal constituted by the parties themselves is void, has no application to an agreement of submission to arbitration under Pub. Sts. c. 188.- On the contrary, submissions under the statute are favored by the court.</p> <p>One having claims against various insurance companies arising from the destruction by fire of a building and its contents may make a valid agreement with all the companies for submission to arbitration under Pub. Sts. c. 188 providing for an award adjusting all the rights of the parties.</p> <p>A submission to arbitration under Pub. Sts. c. 188 provided, that the award of the arbitrators when filed in the Superior Court should be final, that no appeal therefrom should be taken and that the benefit of any appeal from or revision of tlie award was expressly waived by tlie parties. There also was a provision, that tlie person to whom tlie award was made might take out execution thereon or might at his election procure a decree in equity for the immediate payment of the sum so awarded. Semble, that, if there was any objection to tlie parties waiving a portion of their rights, their attempting to do so did not make the submission invalid. Moreover, that the provision in regard to waiving an appeal could not be construed to exclude an appeal to the court in case of dishonest dealing or to prevent the arbitrators from presenting a question of law to the court, and that the provision for a decree in equity was at most simply invalid.</p> <p>A single award upon two submissions under Pub. Sts. c. 188 is bad.</p> <p>In case of a submission to arbitration under Pub. Sts. c. 188, including claims of one plaintiff against several insurance companies who are parties to tlie submission, tlie award should state definitely tlie requirements imposed upon the various companies, so that a separate judgment for a sum of money may be entered against each defendant found answerable to the plaintiff.</p> <p>An appeal from an order or judgment of the Superior Court on an award, under Pub. Sts. c. 188, § 12, must be founded on matter of law apparent upon the record, and one wishing to object to the ground on whicli a judge of the Superior Court granted or denied a motion to confirm an award must raise the question by exception, and not by appeal, unless the ground of tlie decision appears upon the record.</p>

<p> Malicious Prosecution. False Imprisonment. </p> <p>One who, believing that a crime has been committed, sends for a police inspector and fairly and truthfully discloses to him all matters within the speaker’s knowledge which he supposes to have a material bearing upon the question of the innocence or guilt of the person suspected, and leaves it to the officer to act upon his own judgment and responsibility as to whether or not there shall be a criminal prosecution, and does no more, cannot be held answerable in an action for malicious prosecution, in case the officer comes to the wrong conclusion and prosecutes when he ought not to do so. It makes no difference that the person who sends for the officer and gives him the information is in the habit of doing this in similar cases.</p> <p>In an action against a pawnbroker for alleged malicious prosecution and causing the unlawful arrest of the plaintiff, it appeared, that the plaintiff represented herself to the defendant as the owner of certain articles which she pledged to him, whereas she held them under a contract of conditional sale, the title being in the vendor, and that the defendant learning of the facts called in a police inspector and informed him of them. The plaintiff offered to show that the defendant held other property of hers more than sufficient to cover all loans which the defendant had made to her and which he had a right to apply to the payment of the loans, and that the defendant did not investigate and report to the officer the state of the general account between him and the plaintiff. Held, that the evidence properly was excluded as immaterial, having no bearing whatever upon the pledging of the property of another which was the only thing that the defendant was reporting to the officer. Held, also, that evidence to show an offer of the plaintiff to pay the defendant after her discharge from arrest was likewise immaterial, as also was evidence that the plaintiff gave the pawn ticket to the owner of the pledged articles and had no intention of committing a fraud, neither of these facts being known to the defendant at the time he called in the officer.</p>

<p>Evidence, Presumptions and Burden oí Proof. Auditor's Report. Practice, Civil, Rulings and Instructions.</p> <p>An auditor’s report without changing the burden of proof makes it incumbent upon the other party to go forward with evidence to rebut and control it, but, after evidence has been put in on both sides upon the matters dealt with by the auditor, it would be error to instruct a jury, that there was a presumption of fact that the auditor’s report was right. In such a case it is for the jury to consider the evidence anew and to settle for themselves how far they should be influenced by the report.</p> <p>A request for a ruling not incorrect in law but put in such a form as to amount to an argument, and otherwise unnecessary, properly may be refused for that reason.</p>

<p>Devise, Execution of power of appointment.</p> <p>It is a familiar rule of law, that a donee of a power of appointment, who is given authority to choose and appoint an object of the power according to his judgment and discretion, cannot delegate the exercise of that discretion to another. But one having an estate with a power of appointment, under which he may give an absolute interest, or may put limitations on the use and enjoyment of that which otherwise would be such an interest, properly may exercise the power by giving one substantially the whole interest in the property and the whole control of it, in the form of a right of personal use and enjoyment during his life, with a right to appoint who shall have it after his death.</p> <p>A will giving to the testator’s children life estates with power of testamentary appointment contained this provision: “It is my will that my daughters and 'son shall have power of disposing of their respective shares of my estate among my lineal heirs, to have and enjoy the same upon such terms and provisions as may be prescribed by my children,” A daughter of the testator, in attempted execution of this power, gave life estates to such of two nieces and a nephew as should survive her, and after their respective deaths the trustee was directed to convey the proportion or share of the trust fund which had been enjoyed for life by the decedent to such person or persons except the husband of one of the nieces as the decedent might by will appoint; and, in default of such appointment, to convey the share to the issue of the decedent. The nephew survived his aunt and died leaving a widow and two children, and by his will appointed his share of the property to his wife for life and after her death to his children in equal shares. Held, that the appointment by the daughter of life estates to ' her two nieces and her nephew was good, but that the attempted gift to her nieces and nephew of'the power to appoint anybody except the husband of one niece was void, because, whether or not it was void for other reasons, it purported to authorize an appointment to others than the lineal heirs of the original testator and thus exceeded the terms of the power under which she attempted to act. Therefore the attempted appointment in the will of the nephew under the invalid authority was as if it had never been made, and his share of the property went to his children under the appointment in his aunt’s will providing that in default of appointment by him it should go to his issue.</p>

Bill of interpleader brought by an insurance company against different claimants to the sum payable under a policy of insurance issued upon the life of one Bridget Lawler, filed April 24, 1900.

Tort for deceit, alleging that, relying upon the false and fraudulent representations of the defendant, a broker, that certain sales of the stock of the Franklin Park Land Improvement Company in the Boston Stock Exchange from January 1 to March 27, 1893, were genuine transactions, the plaintiff revoked an order for the sale of certain shares of that stock held for him by the defendant, whereby the plaintiff suffered loss. Writ dated February 17,1896.

<p>Contract on an order accepted by the defendant to pay the plaintiff the sum of $993.83 on or before November 1, 1899. Writ dated May 26, 1900.</p> <p>At the trial in the Superior Court, before Hopkins, J., the following facts appeared. The order sued upon was as follows: “ Brookline, July 24, 1899. E. M. Abbott, Esq., As be is Conveyancer for Lot 8 5 Lancaster Terrace, Brookline, Mass. Dear Sir, — Please except [sz'e] and pay to Shephard, Farmer & Co. the sum of $993.83, nine ninety-three 83/100 dollars, the above being the amount of Bill for Lumber furnished by said firm in full for Lot 5 Lancaster Terrace, Brookline, and charge the same to the $1,800 payment, said order is as per agreement of order furnished by me, and charge the same to my account. Bespectfully, Charles T. Hill. Said order to be paid on or before November 1st, ’99.”</p> <p>The following was indorsed upon the back of the order: “Boston, July 24/1899. Accepted as I am conveyancer for the mortgagee of Lot 85, Lancaster Terrace, Brookline, Mass. Edward Miles Abbott, Conveyor.”</p> <p>There was testimony in behalf of the plaintiff tending to show that before July 11, 1899, the plaintiff had been requested to furnish lumber to Charles T. Hill, the maker of the order; that on July 11, 1899, the plaintiff wrote to the defendant the following letter: “Dear Sir,—.Under the agreement that you would guarantee that we would be' paid for same, the late Mr. O. B. Hill placed with us an order for lumber as follows: [Specifications.] All this lumber will come to about $900. One car of the spruce dimension is now on the way to Boston, and will be ready for teaming to the job some day this week, but before making such delivery, we must have from you a writing to the effect that we shall be paid for this lumber sometime before November 1, 1899, with interest after 30 days from time of delivery, the time of such payment, either in one or two instalments, to be agreed upon between the parties interested.”</p> <p>That on the receipt of this letter the defendant telephoned to the plaintiff, that it was all right; that no lumber was shipped to Hill until after the receipt of that message; that between the time of the receipt of that message and July 24, 1899, the plaintiff furnished to Hill lumber to the value of about $210.46, and that the balance of his bill to the amount of the order was for lumber furnished after the acceptance of July 24, 1899 ;• that on July 24, 1899, one Packard, acting for and on behalf of the plaintiff, presented to the defendant the order dated July 24, 1899; that before accepting it, the defendant wrote in the words after his name, “ as he is conveyancer for lot No. 5, Lancaster Terrace, Brookline, Mass.,” and then wrote and signed the acceptance indorsed on the back of the order; that subsequently the defendant gave the letter of July 11, 1899, to Packard and requested him to go to the premises and check up the lumber; and that the plaintiff on February 1, 1900, had been paid upon account of the order by the defendant the sum of $400 by a check upon the National Bank of the Republic, signed “ Edward Miles Abbott, Trustee.”</p> <p>The defendant admitted that he signed the acceptance on the back of the order. The defendant further testified, under objections on the part of the plaintiff’s counsel, and under a ruling of the judge that the same might be admitted de bene, as follows: That he was a real estate agent and insurance broker, and that he had no interest whatever in either lot No. 5 Lancaster Terrace, Brookline, or the building thereon; that on or about May 15, 1899, O. B. Hill, now deceased, father of Charles T. Hill who signed the order, applied to the defendant to "procure a loan of $10,500 on the lot No. 5, and on a proposed building to be erected at a cost of $11,000 above the land; that he then negotiated with one William E. Stowe to advance to Hill the sum of $10,500, and thereafter, on May 25, 1899, Elmina D. Hill, in her own right, and Charles T. Hill, her husband, executed and delivered to Stowe, a mortgage on lot No. 5 Lancaster Terrace, and it was recorded in Norfolk Deeds on July 18,1899; that thereafter the $10,500 was paid over by Stowe, the mortgagee, as follows: $4,500 to the mortgagor, and $6,000 to the defendant; that of the sum of $6,000 paid over to the defendant, he paid out for and on account of the mortgagor for building material, lumber and otherwise, the sum of $5,915; that there was now in his hands, out of the moneys advanced to him by Stowe, the sum of $85 and no more; that the funds so advanced to him were deposited in the National Bank of the Republic, in the name of Edward Miles Abbott, trustee, and were paid out by checks signed “ Edward Miles Abbott, Trustee ”; that the defendant paid to the plaintiff on February 1, 1900, $400, by a check on the National Bank of the Republic in the sum of $400, and signed “ Edward Miles Abbott, Trustee.” The defendant was asked by the judge if he had authority to sign the acceptance in the form in which it was signed and delivered, and answered that he did not know. He further stated, however, that he had from time to time paid out money on bills, and had paid other orders executed in the same form, and that Stowe had made no objection thereto. The defendant further testified under objection, the evidence being admitted de bene, that before signing the order, the plaintff’s agent had informed him that Hill had applied for lumber, and he understood that the funds would be furnished through the defendant’s office; that the defendant replied that the funds were placed there by the mortgagee; that he was not personally responsible; that as "the funds were placed in his hands, he could pay them, but in no other way; that it could be paid through his office only as he was furnished with funds.. x</p> <p>The defendant further testified, that the $1,800 payment referred to in the order was the last payment due upon the building contract,- and did not become due and payable under the terms of that contract until the house was fully completed and ready for occupancy; that' the house was not completed on November 1, 1899, nor was it completed at the time of the trial in the following respects, among others: The papering was not done; the gas fixtures were not in; the grading was not done; and the walks were not laid; and that it would cost about $800 to complete the building, and make it ready for occupancy as required by the contract. The defendant was asked by his counsel whether he ever intended to bind himself personally on the acceptance, the defendant’s counsel intending to show that the defendant never had any such intention. The judge excluded the question, and the defendant excepted.</p> <p>Upon cross-examination the defendant testified, that he did not know that he ever told the plaintiff the name of the mortgagee ; that he had been paid a commission by Charles T. Hill for his work in connection with the mortgage and transaction; that he had been paid nothing by Stowe, the mortgagee, and was to be paid nothing by him; that he did not consult the mortgagee about signing the acceptance in suit; that after accepting the order in question he accepted other orders in favor of people having claims for work or materials furnished for the house, and had paid them; that his account at the National Bank of the Republic stood in the name of “Edward Miles Abbott, Trustee”; that before and since this transaction he had other funds in that bank in that account; that the mortgagee himself paid some bills contracted in connection with the erection of the building which were to be considered as advances on account of the mortgage. In rebuttal the plaintiff testified that he never knew who the mortgagee was, until the trial. William E. Stowe, the mortgagee, testified, that he had paid upon the mortgage, either by giving cash to the defendant or by paying bills contracted in the erection of the house, at least $10,500.</p> <p>At the conclusion of the evidence, the judge struck out all the evidence admitted de bene, and the defendant excepted; and thereupon the plaintiff asked the judge to direct a verdict for the plaintiff for the amount of the order, less the sum of $400 <paid on February 1,1900.</p> <p>The defendant asked the judge to, rule as follows: 1. Upon the evidence, the action cannot be maintained. 2. There is a variance between the declaration and the proof in that the declaration alleges a personal obligation of the defendant, while the acceptance shows that any promise made by him was made in a representative capacity. 3. The acceptance declared on, being a simple contract, oral evidence is competent to charge the defendant’s principal. 4. The acceptance not being negotiable, the rule applicable to commercial paper does not apply, and it is immaterial that Mr. Stowe is not named in the acceptance, or whether Ire is or not liable thereon. The question is whether or not the defendant has used apt words to bind himself personally. 5. If the defendant was without authority to make the acceptance so as to bind his principal, Mr. Stowe, the mortgagee of the lot in question, then the plaintiff’s remedy is by an action of tort for false representations. -6. In order to recover, the burden is upon the plaintiff, to show by a fair preponderance of “the evidence that the defendant has in his hands, in his capacity as agent or conveyancer for Mr. Stowe, the mortgagee of the lot in question, sufficient funds to pay the acceptance declared on in this action, and that the $1,800 payment referred to in the acceptance had become due. 7. If the defendant had authority from the mortgagee to make the acceptance in the form in which it was made, this action cannot be maintained, and the burden is upon the plaintiff to show the want of such authority.</p> <p>The judge declined to make the rulings, and ruled, that if the defendant signed the indorsement on the back of the order, he was personally liable. The defendant thereupon excepted to the ruling of the judge, and to his refusal of the defendant’s requests for instructions.</p> <p>The jury returned a verdict for the plaintiff; and, at the request of the defendant, the judge reported the case for the consideration of this court. If the above rulings and refusals to rule were correct, judgment was to be entered upon the verdict; otherwise a new trial might be had or such order made as justice might require.</p>

<p>Tort by a moulder employed in the defendant’s factory for injuries received while operating a Ridgway oil governed air hoist, the first count of the declaration alleging a defect in machinery under St. 1887, c. 270, and the second count being at common law. Writ dated October 11, 1899.</p> <p>At the trial in the Superior Court, before GrasJdll, J., it appeared that the plaintiff was forty-five years of age, that he had been a moulder by trade for twenty-eight years before the accident, and that he had been employed by the defendant as a moulder from 1872 to 1879, and again from 1884 until the time of his accident, which occurred on April 21,1899; that he was employed in the heavy moulding work, and that at the time of the accident he was preparing to lift what he called the top box, weighing about four hundred pounds; that in order to lift this load by means of the hoist it was necessary for him to fasten two iron hooks which were attached to the piston rod of the hoist on to two knobs or projections on the box made for this purpose, which in the factory were usually called “trunnions” ; that he had put one hook in place and was holding the other hook in his left hand and was about to hook it to the load when the piston rod of the hoist shot or jumped suddenly into the air; that the hook in his left hand caught him in the left wrist and caused the injury for which he brought this suit; that the air pressure was turned on by him and that the piston rod and the hook in his left hand were both slowly rising when he was attempting to fasten the second hook to the load to be lifted.</p> <p>It appeared that the accident was caused by the splitting of a check valve, which had been placed in the machine by one Inslee, the assistant superintendent of the defendant’s works at Watertown, who had charge of the mechanical department of the works. The evidence, in regard to this and all other material facts, is .stated in the opinion of the court.</p> <p>At the conclusion of the evidence, the defendant asked the judge to direct a verdict for the defendant. The judge refused to do so, but instructed the jury that the plaintiff could not recover upon the first count, based on the employers’ liability act. The judge gave full instructions, to which no exceptions were taken, the only exception being to the refusal of the judge to direct a verdict for the defendant.</p> <p>The jury returned a verdict for the plaintiff in the sum of $6,500 ; and the defendant ■ alleged exceptions.</p>

<p>Contract, Common counts. Pleading, Declaration. Agency, Broker.</p> <p>In an action on an account annexed to recover for services rendered at the request of the defendant in the settlement of a claim against a city for damages for land taken under the right of eminent domain, if the amount named in the declaration is the amount which it was agreed the plaintiff should receive, if successful in making the settlement, this does not prevent him from recovering the reasonable value of his services although the settlement was not made by him, if on the evidence the jury could have found that he was entitled to be paid for his services if they were not successful.</p> <p>A business man employed to perfonm services, usually performed by a lawyer, in obtaining compensation for property taken by a city under the right of eminent domain, and who at the time he is employed says that he shall charge five per cent upon the amount of money received, is not employed as a broker, and the stipulation fixing his compensation at five per cent, if successful, leaves the compensation to be received by him, if unsuccessful, to be determined by the value of the services rendered.</p>

Tort under St. 1887, c. 348, to recover damages caused by the malicious erection and maintenance of a fence unnecessarily exceeding six feet in height. Writ dated June 3, 1899.

<p>Contract, What constitutes. Sale, Order for goods.</p> <p>The plaintiff, a dealer in nursery stock, wrote to the defendant in England, who had previously filled orders for him, stating that he should want certain rhododendrons and other plants for the coming season, enumerating the sizes of the plants and the number of each size wanted, adding “Kindly inform us by return mail the cost of these plants and we will cable as to filling order.” The defendant answered giving the prices of the plants wanted, except of one size of rhododendrons which he could not supply. In this letter the defendant suggested a cable code by which, if the plaintiff should cable the words “ Light,” “ Medium ” and “ Extra,” he would be understood to order respectively three of the sizes of rhododendrons at the prices named in the letter. In reply the plaintiff cabled “ Ship as ordered.” The defendant made no reply and shipped no goods. The plaintiff procured rhododendrons in this country at higher prices than those named by the defendant, and sued the defendant for failure to ship the rhododendrons named in the defendant’s letter. Held, that there was no contract, that the message was not equivalent to an order to the defendant to ship such of the rhododendrons mentioned in the plaintiff’s letter as the defendant had stated prices for, and there had been no order to which the message “Ship as ordered ” might refer, and it naturally might refer to an order by mail on its way or to be sent.</p>

<p>Municipal Corporations, Limitation of indebtedness. Boston, St. 1885, c. 178.</p> <p>The city authorities of Boston desired to acquire certain land adjoining land of the city used for a hospital. The price of the land was $226,000. The borrowing ' capacity of the city under St. 1885, c. 178, limiting its indebtedness was but little over §24,000, and it had no money in its treasury available for the purchase of the land. It was arranged with the owners of the land that they should mortgage it to third parties for §202,000 and the city should buy it subject to the mortgages for §24,000. The mortgages were to be payable three years after the conveyance to the city, with a privilege to the owners, their grantees and assigns to pay them off before maturity. The city was not to be mentioned in the mortgages and the deeds to the city were to contain the statement, that the city was not to be held liable in any way for the payment of the mortgages or the interest thereon. Upon a petition of more than ten taxable inhabitants of Boston, under St. 1898, c. 490, to enjoin the city from carrying out the transaction, it was held, that the proposed action of the city must be enjoined as an attempted evasion of St. 1885, c. 178, and within its prohibition; that the transaction was in substance and effect a purchase of the land by the city for the sum of §226,000 of which it was to pay $24,000 in cash and the rest in three years with interest, with the privilege of paying sooner, and this notwithstanding the fact that' the city could not be sued for the balance of the purchase money, the manner in which the indebtedness was created being immaterial, if the result was to subject the city to a present liability, direct or indirect, which the taxpayers eventually would be called upon to meet.</p>

<p>Petition under St. 1889, c. 442, to determine the nature and extent of encumbrances in Townsend Place, a private way-leading out of Carver Street in Boston, filed May 26, 1900.</p> <p>The respondents demurred to the petition, the principal ground of demurrer being that the petitioners had not a freehold estate in the premises within the meaning of the statute. The case was heard by Barker, J., who sustained the demurrer and ordered the bill to be dismissed, and, with the consent of the parties, reported the case to the full court to.be determined on the pleadings.</p>

<p>Tort under Pub. Sts. c. 73, § 6, to recover for the loss of life of the plaintiff’s intestate by reason of the negligence of the defendant, alleged to be a common carrier of passengers, operating a passenger elevator in the building owned and managed by him as trustee numbered 171 A on Tremont Street in Boston. Writ dated December 7, 1898.</p> <p>At the trial in the Superior Court, before Sheldon, J., the counsel for the plaintiff, in his opening to the jury, stated that he proposed to show that the building was an office building, consisting of six floors occupied by various tenants; that an elevator ran from the street floor to the top of the building, and was maintained by and under the control and management of the defendant, for the use of the tenants and their employees, and those who for any purpose desired to visit them; that the plaintiff’s intestate worked for one of the tenants on the fifth floor of the building, and the accident happened while the plaintiff’s intestate, being in the exercise of due care, was in the elevator being carried up to his place of business; that he was instantly killed by reason of the gross negligence of the defendant’s servant or agent in operating the elevator, and on account of the gross negligence of the defendant in allowing the elevator to get out of repair so as to render it dangerous for passengers therein in the exercise of due care; and that the elevator had been out of repair and defective for a long time and was dangerous for passengers riding therein, all of which the defendant well knew.</p> <p>At the conclusion of the opening, the judge asked the plaintiff’s counsel if he contended that he could recover if the defendant was held not to be a common carrier of passengers. The plaintiff’s counsel answered that unless the defendant was held to be a common carrier of passengers, at least as far as the plaintiff’s intestate was concerned, he could not recover. The judge thereupon ruled that the defendant was not a common carrier of passengers, and ordered the jury to render a verdict for the defendant.</p> <p>The jury returned their verdict as directed ; and the plaintiff alleged exceptions.</p>

<p>Petition by the executor under tbe will of Nancy Pierce, late of Grafton, to have the amount of indebtedness of Silas A. Pierce, a legatee under the will, to the testatrix determined and deducted in ascertaining the part to which the said Silas legally would be entitled under the will, filed in the Probate Court for the county of Worcester October 12, 1898.</p> <p>In the Probate Court, Forbes, J. made a decree dismissing the petition, and the petitioner appealed. The case came on to be heard before Morton, J., who reserved it upon the pleadings and agreed facts for the consideration and determination of the full court, such decree to be entered as should seem meet.</p> <p>By the agreed facts, it appeared, that Nancy Pierce, of Grafton, died on the fifth day of May, 1894, leaving as her heirs at law and next of kin, Charles A. Pierce, a brother, Silas A. Pierce, a brother, George B. Pierce and James W. Bigelow, nephews, Sarah Pierce, Adaline L. Green, Harriet A. Mann and Mary W. Sawyer, nieces, Carrie Baker and Mary E. Bigelow, grandnieces, and Charles F. Bigelow and Frank A. Bigelow, grandnephews. Her will, executed on October 4, 1878, was allowed by the Probate Court for the -county of Worcester on May 24, 1895, and the executor therein named, James W. Bigelow, qualified by giving bond which was approved on May 26, 1896. The inventory filed by the executor showed personal estate amounting to $931.42, and real estate amounting to $2,300.</p> <p>The clause of the will on which the petition was founded, and all other material facts, are fully stated in the opinion of the court.</p>

<p>Negligence, In driving, Contributory negligence and due care.</p> <p>It is no evidence of negligence on the part of the driver of a coal team, backing it towards a pile of coal and knowing the plaintiff to be behind the wagon, that as the team approached the pile of coal the horses backed more quickly and that, from some unexplained cause, the wagon swerved and caught the plaintiff between it and a post and injured him. Horses backing as these were cannot be expected to move at the same rate of speed all the time.</p> <p>A coal shoveller, about to unload a team which is backing towards a pile of coal, who places himself behind the wagon and walks backwards with his hands on the doors at the end of the wagon, and in so doing is caught between the wagon and a post which lie knew was there and could have seen by looking around, has voluntarily assumed the risk of injuries so caused and is not in the exercise of due care.</p>

<p>Bill in equity by certain creditors of the estate of Allen S. Weeks, deceased intestate, under Pub. Sts. c. 136, § 10, praying to be allowed to share in the assets of that estate and be given ' judgments for the amounts of their respective claims against it, they having failed to bring suit upon their claims within two years from the time that the administrator of the estate gave bond for the discharge of his trust, filed August 28, 1900.</p> <p>The defendants were John E. Abbott, administrator of the estate of Weeks, and four creditors whose claims had been allowed. The defendants, except the administrator, demurred to the bill, among other grounds, for want of equity and because it failed to allege with sufficient particularity in what the alleged mutual mistake of the plaintiffs and the defendant Abbott consisted.</p> <p>The bill alleged, that Weeks died on August 8,'1897, and on Augustl9, 1897, the defendant John E. Abbott, an attorney and counsellor at law, was appointed administrator of the estate and on the same day gave bond as such administrator; that the defendant administrator found the estate to be greatly confused, and that there were many questions of fact and law requiring much time for their adjustment and requiring the prosecution and defence by him of sundry suits concerning the title to a part of the assets, and found, during the early part of his administration, that the estate was insolvent and insufficient to pay the claims of creditors in full; that the plaintiffs presented their claims to the defendant administrator after the expiration of one year and before the expiration of two years from his appointment; and that the defendant administrator then informed the plaintiffs that the estate was insolvent, that there were many collateral matters to be adjusted by him, that he was engaged in considerable litigation involving the assets of the estate, and that it was not wise, nor would it be beneficial to the creditors, nor to the estate, to have a multiplicity of suits instituted for the collection of the claims of the plaintiffs, that he intended to represent the estate insolvent, so that commissioners, to whom the claims of the creditors might be presented, would be duly appointed by the Probate Court, that the rights of the creditors would thus be protected, and that for that reason it would be a waste of the assets to bring suit against the estate; that the defendant administrator intended to represent the estate insolvent, and that notice of the fact should be received by the plaintiffs, giving them ample time in which to present their claims to the commissioners before the expiration of the period limited by the statute, but that, through mutual mistake of the administrator and of the plaintiffs, such representation was made so late that it was impossible for the plaintiffs to present their claims to the commissioners until after the expiration of two years from the time when the administrator filed his official bond; that the plaintiffs, and each of them, relying upon the statements of the defendant administrator, and being desirous not to increase the costs of the estate, and relying upon the insolvency of the estate and upon its due representation as insolvent, and upon the appointment of commissioners in due course by the Probate Court, and notice to them of such appointment, refrained from bringing suit, and had not before the date of the filing of the bill brought' action upon their several claims; that on August 17, 1899, the defendant administrator represented the estate insolvent, and on the same day a warrant was issued by the Probate Court appointing the defendants C. P. Weston and F. K. Linscott commissioners; that the warrant did not reach the commissioners until after August 19, 1899, two years from the date when bond was given by the defendant Abbott as administrator, and the commissioners qualified as such on September 21, 1899; that meetings of creditors were held by the commissioners on October 14, 1899, and February 7, 1900, and the claims of the plaintiffs were found to be just claims and correct as to amount, but upon the objection of the defendants Ruggles, Chase, and Thomas, and their attorneys, the claims of the plaintiffs were not allowed ; that the commissioners, on July 30, 1900, by permission of the Probate Court, filed their report, stating therein the reason for which they disallowed the plaintiffs’ claims, namely, that their claims were barred by the statute of limitations, no suit having been brought on them, nor presentation made of the claims to the commissioners within two years from the time when bond was given by Abbott as administrator; that the only claims allowed by the commissioners were those of the four respondents, Buggies, Chase, Emeline Thomas, and Harry Thomas, amounting in the aggregate to $37,854.26 ; that the total assets of the estate, without deducting charges and commissions, amounted to about and not exceeding $15,000 ; that the claims of the plaintiffs and of those creditors in like position, being twelve in number, amounted, to $82,902.70; that at the time of bringing the bill no order of distribution of the estate of Weeks had been made by the Probate Court and no distribution had in fact been made; that the entire estate would therefore in any event be divided among creditors, and that unless the relief prayed for was granted the whole estate would be divided among the four creditors whose claims aggregated $37,854.26, to the exclusion of the twelve creditors whose claims aggregated $82,902.70.</p> <p>The case came on to be heard on the bill and the demurrers of the defendant creditors before Lathrop, J., who, at the request of the parties, reserved it for the consideration of the full court. If the demurrers were sustained the bill was to be dismissed ; otherwise the cause was to stand for further hearing.</p> <p>The case was argued at the bar in March, 1901, and after-wards was submitted on briefs to all the justices.</p>

<p>Negligence, Contributory negligence and due care.</p> <p>A tenant in a building having a right to use a water closet in the basement, who goes into the closet in the dark without a light and bumps his head against a protruding gas pipe which has been in the same place during the whole of the two months that he has occupied his premises, is not in the exercise of due care and cannot recover for an injury thus incurred.</p>

<p>Tort to recover for injuries from a fall caused by the plaintiff, an employee of the Peoples Telephone Company, receiving an electric shock while lawfully on a pole owned and maintained by the defendant the Haverhill and Amesbury Street Railway Company, the electric power being furnished by the defendant the Lowell, Lawrence and Haverhill Street Railway Company. Writ dated August 31, 1899.</p> <p>At the trial in the Superior Court, before Q-asTciTl, J., it appeared, that the pole in question was one of a series of poles belonging to the defendant the Haverhill and Amesbury Street Railway Company, which owned and operated an electric street railway line running from Washington Square in Haverhill through Emerson and White Streets to Charles Street toward Amesbury, and which controlled the continuous system of guard and span wires over its trolley wire for the support and protection of the latter; but the electric power used for propelling the cars was furnished to it by the defendant the Lowell, Lawrence and Haverhill Street Railway Company under a contract.</p> <p>It further appeared, that these poles were used by the Peoples Telephone Company under a written agreement, dated October 27, 1897, which, omitting the introductory and attesting paragraphs, was as follows: “ That the said Haverhill & Amesbury Street Railway Co. hereby agrees to allow said Peoples Telephone Co. the right to use its poles for the purpose of conveying wires and cables from Washington Square to Kaulbacks. Said Telephone Company agrees to pay said Railway Company the sum of ■$ .25 per pole annually for the use of said poles. The said Peoples Telephone Company also agrees to furnish said Haverhill & Amesbury St. Railway Co. one telephone at $24. per year. The rental in both instances to be payable -annually on the first day of January, and to put in a telephone at Kaulbacks and at Holden’s Drug Store for the use of said Railway Co. And it is further agreed that the Peoples Telephone Co. will assume all risks as to any damages which might arise from or to their employees while working on the poles of said Railway Company.”</p> <p>The plaintiff objected to the admissibility of the part of the agreement in the last sentence printed above. The judge admitted it, and the plaintiff excepted. The decision of the court has made this exception immaterial.</p> <p>Evidence was introduced of which the substance is stated in the opinion of the court. At the conclusion of the evidence, the judge ruled that the plaintiff could not recover and ordered a verdict for the defendants. The verdict was returned as directed; and the plaintiff alleged exceptions.</p>

Two actions OP tort originally brought in the Municipal Court of the city of Boston, each for the alleged conversion of a registered certificate of the city of Boston for the sum of $1,000 with an assignment on the back signed in blank by one William Scollans, the defendant, E. H. Rollins and Sons, being a corporation. Writs dated December 29, 1896.

Tort against the city of Boston to recover damages for injury to the plaintiffs’ house and property alleged to have been caused by water overflowing into the plaintiffs’ cellar on account of the defendant stopping the outlet of Orient Lake, so called, in that part of Boston called East Boston.- Writ, in the Municipal Court of the city of Boston, dated March 12, 1900.

<p>Contract for Í57.79 had and received by the defendant to the plaintiff’s use, paid in discharge of a mechanic’s lien upon certain real estate of one Yates, the lien being the property of the plaintiff by assignment from one McKenna. Writ, in the Second District Court of Bristol in the city of Fall River, dated December 15, 1899.</p> <p>The case, coming by appeal to the Superior Court, was there heard upon an agreed statement of facts by Pierce, J., without a jury.</p> <p>The agreed facts were . as follows: That on November 14, 1898, one McKenna had a valid claim of mechanic’s lien upon the realty of one Yates, and had no other claim against Yates ; that for a valuable consideration on November 14, 1898, McKenna executed and delivered to the plaintiff the following instrument:</p> <p>“ For and in consideration of one dollar and other considerations I hereby assign, transfer and set over to I. H. Wiley of Boston, Massachusetts, all my claims and demands of whatsoever name or nature against Thomas Ches worth and against Samuel Yates, both of said Fall River, together with all my interest in and to any and all suits and actions now pending to enforce said demands. And I hereby appoint said Wiley my attorney irrevocable in the premises, generally to say and to do all that I might or could if personally present. In witness whereof, I have hereto set my hand and seal, this fourteenth day of November, 1898. Frank T. McKenna, (l. s.) Witness, Charles E. Read, Jr.”</p> <p>That the Yates named in the foregoing instrument was the same Yates against whose realty McKenna had his lien; that on November 16, 1898, McKenna made an assignment to the defendant for the benefit of his creditors; that on November 15, 1898, a statement of the lien was executed by McKenna, and on November 16,1898, was filed in the proper registry of deeds.</p> <p>The statement was as follows: “ I hereby certify that the following is a just and true account, with all just credits given, of the amount due me for labor performed and furnished in the painting during erection of a building situated on a lot of land in Fall River in said Commonwealth, which lot is described as follows: [Description] said lot of land being owned, to the best of my knowledge and belief, by Samuel Yates. [Account against Yates with eight items amounting in all to $57.79.] I further certify that I ceased to furnish labor on said building on the seventeenth day of October, 1898, and that Thomas F. McNulty and Frank W. Hoag, copartners as McNulty & Hoag agreed by and with the consent of Samuel Yates to pay the said Frank T. McKenna $140 to paint the said building and I hereby claim a lien upon said building and upon the interest of the owner thereof in the lot of land upon which the same is situated, to secure the payment of the debt due me as aforesaid, and of the costs which may arise in enforcing said lien. Frank T. McKenna.”</p> <p>That in the drawing and filing of the foregoing statement the defendant, who is an attorney at law, acted as McKenna’s counsel; but that he never discharged the lien of Record or otherwise, even after the payment hereafter mentioned ; that on December 16, 1898, Yates paid to the defendant as assignee for the benefit of creditors $57.79, which was the full amount of the claim of lien ; that the defendant had been informed by McKenna before accepting the payment that the assignment of November 14, 1898, to the plaintiff had been executed and delivered, but he had never seen the instrument before the money was paid, and did not know its exact contents. The plaintiff claimed under the assignment of November 14, 1898.</p> <p>The court was to find such facts and draw such inferences as might be deemed proper from the foregoing agreed statement, and to enter such judgment as the law might require.</p> <p>The defendant requested the following rulings: 1. The plaintiff is not entitled to recover. 2. The plaintiff’s assignment from McKenna did not give him any rights to the mechanic’s lien of McKenna v. Yates. 3. If the defendant’s assignment for the benefit of creditors did not authorize him to receive the money paid him by Yates, then the payment of such money by Yates was not a discharge, and the plaintiff under the facts stated could, through McKenna, prosecute the lien. 4. There is no express or implied promise of the defendant to the plaintiff on the facts stated to pay the sum claimed. 5. The defendant cannot apply the money received by him in any other way than his assignment states. 6. The mechanic’s lien of McKenna v. Yates was not assignable, but even if it was assignable, the plaintiff as such assignee could not recover in his own name in this action. 7. The court should enter judgment for the defendant.</p> <p>The judge refused to rule as requested by the defendant, and made the following findings and rulings: “ Upon the agreed facts and drawing such inferences as may be drawn from said facts I find that the instrument marked 6 A ’ [the' assignment of November 14, 1898, from McKenna to the plaintiff] operated to assign to the plaintiff the debt due and unpaid from Thomas F. McNulty and Frank W. Hoag to Frank T. McKenna and carried with it the right to maintain an action in the name of said McKenna to enforce said lien against the real estate of said Samuel Yates. I find that said Yates paid to said John W. Connelly in ignorance of the assignment to the plaintiff, and in good faith, the amount of money chargeable, by virtue of said lien upon his real estate and that by reason of said payment his estate was relieved and discharged therefrom. I find that John W. Connelly, the defendant, by reason of the fact that he was an assignee solely for the benefit of creditors and because he had knowledge of the prior assignment of the lien debt received the lien debt from Samuel Yates under a trust for the benefit of the plaintiff, and that an action for money had and received to the use of the plaintiff is an appropriate remedy for the recovery thereof. I refuse to make any of the rulings requested by the defendant.”</p> <p>'The judge found for the plaintiff in the sum of $64.32; and the defendant alleged exceptions.</p>

<p> Eminent Domain. Waterworks. Estoppel. Easement. Ancient Grant. Mill Privilege. Gloucester. </p> <p>When land is taken for a reservoir “ to take and hold water,” all water which gathers in the reservoir from springs or by percolation, not flowing in a stream, by necessary implication also is taken.</p> <p>Cases holding that the owner of water rights may treat the actual diversion of the water by a municipality or corporation having a statutory right to take water as a legal taking of it, may rest upon the ground that the defendant is estopped to deny that there has been a legal taking, and are not decisive of the question, whether a man can he deprived of his property by an act in pais purporting to be done under the right of eminent' domain unaccompanied by a writing or other declaration defining the measure of interference with his ownership of the property. Per Loring, J.</p> <p>A corporation created for the purpose of supplying a city with water was given the right to take water from ponds. The charter contained a provision, that the corporation within a certain time “ after the taking of any land or water rights ” should file in the registry of deeds “ a description of any land so taken ” and a further provision, that no application should be made for the assessment of water rights until the water was “actually taken and diverted ” by the corporation. The corporation took and diverted the water of a certain pond for less than a year, supplying the city with water therefrom while its principal reservoirs were in process of construction and then abandoned the use of the water of the pond and never resumed it. No description of the water taken was filed in the registry of deeds. Held, that, without deciding whether the actual diversion of water would be a legal taking of it within the meaning of the statute authorizing the taking, such a temporary use of the water for less than a year, then abandoned and never resumed, was not a legal taking of the water within the meaning of the act as against a person who had rights in that water and who had not elected to treat it as a taking of it.</p> <p>An easement created by grant is not lost by non-user.</p> <p>St. 1881, c. 167, created a corporation for the purpose of supplying the city of Gloucester with water. Section 3 required the corporation, after the taking of any land or water rights under the provisions of the act “ otherwise than by purchase ” to file in the registry of deeds a description of the land so taken. Held, that the corporation had the power, recognized as above, to acquire land and water rights by purchase, as an incident to its business of securing and selling water, and that under this power it could purchase and hold a privilege of damming and flooding formerly used by a saw mill, although the running of a mill was beyond its charter powers.</p> <p>In 1682 the town of Gloucester voted at a town meeting that. “Jacob Davis and others joyninge along with him hath liberty of the streame at the head of the Little River to sett up a saw milne.” Held, that by this grant, though without words of inheritance, a fee in the easement passed to the grantees. The rigid rules of construction applicable to modern conveyances are not to be applied to transactions of this kind, which took place soon after the settlement of the country when conveyancing was little understood. For the same reason the easement granted was not limited to damming the waters of the stream for the purpose of running a saw mill.</p> <p>The ownership of a mill privilege, giving the right to dam a certain stream and flood a certain meadow, does not give the right to withdraw all the water that collects in the pond thus formed and sell it to the inhabitants of a city.</p> <p>St. 1895, c. 451, § 16, provided for the purchase by the city of Gloucester from the Gloucester Water Supply Company of all the corporate property rights, privileges, easements, lands, waters, water rights, dams, reservoirs and appliances owned by that company and used in supplying the city with water. The water company had acquired by deed a mill privilege in a certain stream and a pond created by damming it. It had used the waters of the pond temporarily to supply the city with water while constructing its reservoirs, and had then discontinued the use. It did not own the land under the pond. The city objected to paying for the mill privilege on the grounds, that the waters of the pond were not in actual use when the property of the water company was transferred to the city, that the mill privilege did not give the right to use the pond as a water supply and that the waters of the pond could not so be used without acquiring a fee jn the bottom of the pond. Held, that the city had the right to acquire the fee in the bottom of the pond, that without acquiring the mill privilege the pond could not be used as a water supply, that the mill privilege was of value as a step towards the ownership of the pond as an auxiliary water supply, and that the mill privilege was the property of the water company owned and used by it within the meaning of the section above named.</p> <p>St. 1895, c. 451, an act enabling the city of Gloucester to supply itself and its inhabitants with water, by § 16 made that right conditional on the city’s purchasing the property of the Gloucester Water Supply Company, if that company should elect to sell its property to the city, and in that case provided) that “said city shall pay to said company the fair value thereof ” and that “ such value shall be estimated without enhancement on account of the future earning capaci ity, or future good will, or on account of the franchise of said company.” Commissioners, appointed to value the property under the provisions of the act, excluded evidence of past earnings of the water company, and allowed the sum of $75,000 in addition to the cost of duplication of the plant less depreciation, in consideration of the fact that the plant was a going concern and in full operation at the time of the transfer. They allowed nothing for the powers of the water company which had never been exercised, to take additional sources of water supply, but considered the existence of such supplementary sources so far as they prevented impairment of the property on the ground that the company’s sources shortly might be exhausted. The commissioners found “ the fair value ” of the property transferred by the company to the city September 24, 1895, “ to be the sum of $600,500, with interest from September 24, 1895.” They fixed the amount of costs, including their own fees, and apportioned them between the parties. Held, that the evidence of past earnings rightly was excluded. The franchise of the water company was not exclusive, but so long as it had no competitor it was practically in the enjoyment of an exclusive franchise, so that the earnings during this period were not proper evidence of the “ fair value ” of the property. Held, also, that the allowance above the cost of duplication, less depreciation because the corporation was sold as a going concern was justified, and that there was nothing in St. 1895, c. 451, forbidding it. Whether the provisions of the act, excluding future earning capacity and future good will, would allow present earning capacity and present good will to be taken into account or not, the element of value that came from the property being sold as a going concern was not excluded from consideration by the provisions of the act. Held, also, that the commissioners rightly allowed nothing for the unused powers of the water company to acquire additional sources of water supply. These rights could be revoked and were in fact revoked by St. 1895, c. 451. Held, also, that the commissioners properly could adopt, as a basis of their valuation, the value of the property at the date of its transfer to the city adding interest to the date of payment. Held, also, that any objection to the reasonableness of the fees charged by the commissioners must be made before a single justice.</p>

<p> Board of Health. Superior Court. Equity Jurisdiction. Nuisance. Water Supply. </p> <p>The jurisdiction over nuisances given to town boards of health by Pub. Sts. c. 80, §§ 20-27, is summary in its nature, and the orders made thereunder are not subject to judicial examination and revision at the instance of parties affected by them before they are carried out. After they are carried out, however, the questions whether there was a nuisance, and, if so, whether it was caused or maintained by the parties charged therewith, may be litigated.</p> <p>The Superior Court has no power, either under its general equity jurisdiction or under Pub. Sts. c. 80, § 26, to grant an injunction to restrain a town board of health from exercising the summary jurisdiction to abate nuisances given to it by Pub. Sts. c. 80, §§ 20-27.</p> <p>St. 1897, c. 510, does not give the State board of health exclusive jurisdiction of nuisances affecting the purity of the sources of water supply. There is nothing in that statute which takes away or limits the power of local boards of health to deal with nuisances in their respective jurisdictions.</p> <p>Under Pub. Sts. c. 80, § 20, giving town boards of health the power to examine into, destroy, remove or prevent “ all nuisances, sources of filth, and causes of sickness ” within the town, those boards have jurisdiction over nuisances affecting the purity of the water supply as well as other causes of sickness.</p> <p>When a town board of health has adjudged that a nuisance exists, the question what influences or motives may have set the board in motion is immaterial.</p> <p>It furnishes no ground for interference with a town board of health, who have adjudged certain deposits on land of the plaintiff to be a nuisance as creating danger of pollution to the water supply of the town, that the action of the board was taken with a view to affecting proceedings in a suit pending in the Superior Court between the plaintiff and the company supplying the town with water.</p> <p>Where a town board of health adjudged certain deposits on land of the plaintiff to be a nuisance, and the plaintiff’s land and deposits thereon of the character complained of lay partly in the town to which the board belonged and partly in an adjoining town, it was held, that the order of the board must be taken as limited in its scope to the town to which the board belonged, and an objection that it was in excess of their jurisdiction was not well founded.</p>

<p>Practice, Civil, Election of alternate remedy. Contract, Common counts. Evidence, Conclusions of fact, Declarations of deceased persons.</p> <p>The payee of an indorsed promissory note brought an action against the maker with counts on the note and for money lent and money had and received. While this action was pending he brought an action against the indorser. This court deciding that the note was void but that the payee had a cause of action on the common counts, the payee discontinued his suit against the indorser on the note and proceeded in his suit against the maker on the count for money lent. Held, that the plaintiff’s concurrent pursuit of his alternate and inconsistent remedies waived neither of them, and that, by suing the indorser on the note while his suit against the maker was pending, he had not elected to rely on the note so as to prevent him from recovering on the common counts when the note was held to be invalid.</p> <p>In an action by a bank for money lent, the cashier of the plaintiff was asked, what transaction took place between the plaintiff and the defendant, and answered “ We on December 29th made a loan to ” the defendant, and further stated that lie personally attended to the transaction. The answer was objected to on the ground that the witness was permitted to state a conclusion in describing the transaction as a loan, and that whether a loan was made was a question solely for the jury. Reid, that the answer was the statement of a fact within the personal cognizance of the witness, and properly admitted.</p> <p>In an action by a bank for money lent upon a note held to be void because made by the defendant to her husband, the defendant died between two trials of the case. At the new trial, the administrator of her estate, then the defendant, offered in evidence the declarations made by his intestate after the action was brought, to the effect that she never borrowed any money of the plaintiff. The declarations were offered under St. 1896, c. 445, as in an action against the administrator of a deceased declarant in which the cause of action was supported by oral testimony of a promise or statement made by the deceased person. Held, that the declarations were not admissible under St. 1896, c. 445, because it did not appear that the action was supported by oral testimony of a promise or statement made by the intestate. Whether, the declarations were admissible under St. 1898, c. 535, was not considered, because they were not so offered.</p>

<p>Easement, Equitable restriction. Equity Pleading and Practice, Laches.</p> <p>Where an owner divides a tract of land into building lots and as part of a general scheme for its improvement inserts in the deeds of sale restrictions as to the purposes for which the land may be used, if it sufficiently appears that the intent of the grantor was to benefit the lot owners generally, it is not necessary, in order that the restrictions should be enforceable, that they should be exactly the same in all the deeds, if the differences are not substantial. Also, the fact that two of the lots, one sold before the plan was made, and the other a very small one, were sold without restrictions is not inconsistent with a general scheme of the grantor imposing restrictions on the remaining lots.</p> <p>In a suit to enforce an equitable restriction in the deed of the defendant, as to the place and manner m which he might build upon his lot, it appeared, that the defendant obtained a permit to build on May 9, and that the building was finished about June 10 or 12, that on May 17 a petition was circulated to stop the work and presented to the mayor of the city, that about May 20 one of the plaintiffs had a conversation with the defendant and objected to the building on the ground of restrictions, that on May 27 and June 1 letters complaining of the building were written to the defendant, that on June 5 or 6 the plaintiffs’ attorney had an interview with the defendant in which the defendant said he would .let the plaintiffs know in a short time whether he would remove the building or not, that the building was not removed, and on June 14 the bill was filed. Held, that there was nothing in these facts to show unreasonable delay on the part of the plaintiffs in bringing their bill, or anything showing either actual consent or passive acquiescence on their part, and that the defence of loches was wholly unsupported.</p> <p>It appears to be settled in this Commonwealth, that a plaintiff is not prevented from enforcing in equity a building restriction by the fact that he has not objected to a violation of the restriction’by some one in the neighborhood other than the defendant. But, when the plaintiff has violated the restriction himself, the question whether he is entitled to relief depends largely on whether the plaintiff’s breach of the restriction was so material and substantial as to enable the court to say that it ought not to interfere in his behalf.</p> <p>In a suit to enforce an equitable restriction in the deed of the defendant, that no building or structure should be placed within thirteen feet of a certain street, it appeared, that the defendant had put up a one story building the whole of which was within the prohibited thirteen feet, and that the plaintiffs had violated the same restriction in their own deeds by projecting from their respective houses bay windows, piazzas and steps into the restricted space. Held, that, although the plaintiffs could not invoke the aid of a court of equity to prevent the defendant from erecting a piazza, bay window or steps extending into the restricted space, the building of a separate house in this space was something which they had not done, and they were entitled to a decree ordering the defendant to remove the structure thus erected by him.</p>

<p>Contract to recover a commission for services as a real estate broker in effecting an exchange of certain lands of the defendant, situated in that part of Boston called Brighton, for the real estate known as the Hotel Langham, in Boston. Writ dated September 22, 1898.</p> <p>At the trial in the Superior Court, before Lawton, J., it appeared, that the exchange was made in the summer of 1897, and that the Hotel Langham was then owned by George W. Morse, John W. Weeks and Jonathan D. Lane, as trustees of the Newton Land and Improvement Company. The plaintiff claimed a commission, as a real estate broker, for effecting this exchange. The defendant paid a commission for effecting the exchange to other real estate brokers, Whitcomb, Wead and Company, E. H. Eldredge and Company, and Pierce J. Grace, who acted jointly in the matter, and contended that these latter brokers were entitled to the commission, and that the plaintiff was not. The plaintiff did not contend that he had an exclusive right to act for the defendant, and stated that he knew that other brokers could have acted for the defendant if they desired. The evidence so far as necessary to an understanding of the exceptions is stated in the opinion of the court.</p> <p>At the close of the evidence, the defendant asked the judge to rule, that the plaintiff upon all the evidence was not entitled to recover as a matter of law. The judge refused to make this ruling, and, after instructions from the judge, to which no exception was taken, the jury returned a verdict for the plaintiff in the sum of $7,215.62 ; and the defendant alleged exceptions to the refusal of the judge to rule as requested and to the exclusion of certain evidence which is described in the opinion of the court.</p>

<p>Equity Jurisdiction, Specific performance. Contract, Construction, Consideration. Frauds, Statute of, Part payment, Acceptance.and receipt. Insolvency.</p> <p>The plaintiff had transferred certain stocks to the defendant, a bank, as security for his note for $5,000. Thereafter the plaintiff was adjudged an insolvent. The defendant on its own petition was ordered by the Court of Insolvency to sell the securities and apply the proceeds upon the note. Thereupon the plaintiff and defendant made an oral agreement, that the plaintiff should procure some one to purchase certain of the securities for $1,000, which sum when paid should be credited upon the note, that the defendant should bid in the remaining.securities for §2,700 in all if no higher bid was made for them and the amount of the bids should be indorsed upon the note, that the defendant should hold and carry the securities thus bid in, and, upon receiving from the plaintiff the amount of its bids with interest, and the balance of the §5,000 of the note with interest, should convey the securities to the plaintiff. In pursuance of this agreement the plaintiff procured a purchaser who paid §1,000 for the securities to be sold for that sum, and the defendant delivered those securities and indorsed the payment on the note and on the sanie day bid in at auction the remaining securities for §2,700 and indorsed that amount on the note. The defendant proved for the balance of its claim in insolvency and received a dividend. The plaintiff received his discharge. In a bill for a specific enforcement of this contract, by ordering the defendant to deliver the securities to the plaintiff on his paying to the defendant the balance of his indebtedness, it was held, that the contract was entire, embodying a single scheme, each part having reference to the others, by which the plaintiff might save his collateral; that, assuming the contract to be within the statute of frauds, the statute was satisfied by the payment of the §1,000 by the purchaser procured by the plaintiff and the acceptance and receipt by him of the securities thereby purchased; that the plaintiff’s agreeing to procure and procuring such purchaser could be found to be a good consideration for the promise of the defendant; and that the contract was one which the court would specifically enforce in spite of there being no mutuality of remedy when the contract was made, as the plaintiff must perform his part of the contract by tendering the balance of his indebtedness before the time for performance by the defendant could arise.</p> <p>A part payment made by a purchaser procured by one of the parties to an oral contract of sale in accordance with the terms of the contract satisfies the statute of frauds as much as if made by one of the parties to the contract. So also of an acceptance and receipt of part of the goods by such purchaser.</p> <p>The assent of an assignee in insolvency to the maintenance of a suit by the insolvent after his discharge, to enforce a contract to deliver to him certain securities, is sufficiently shown by the assignee acting as counsel for the plaintiff.</p>

<p>Civil Service Act. Veteran. Contract, Validity. Evidence, Extrinsic to vary writings.</p> <p>St. 1896, c. 517, § 5, forbidding the removal or suspension except after hearing of any “ veteran holding an office or employment in the public service of any city or town,” does not apply to a veteran, certified by the civil service commissioners for employment as a plumber, who is employed by the chief of the repair division of the public buildings department of a city to do plumbing by the job from time to time when plumbing work is needed.</p> <p>If one signs a lawful contract in the absence of fraud, duress or imposition he is bound, whatever his voluntary ignorance or involuntary misinterpretation of its words.</p>

<p>Tort against the inhabitants of the town of Revere to recover for in j uries caused by falling on the slope of an embankment in process of construction under an order prescribing the manner of changing the grade at a railroad crossing of Beach Street in that town. Writ dated April 3, 1897.</p> <p>At the trial in the Superior Court, Sherman, J. refused to direct a verdict for the defendant, and left the case to the jury, who found for the plaintiff in the sum of $2,500. The defendant alleged exceptions. The facts are stated in the opinion of the court.</p>

<p>Assignment, For benefit of creditors.</p> <p>In this Commonwealth the time named in a common law assignment for the benefit of creditors within which creditors may sign is regarded as of the essence of the contract, and the creditors who sign within that time acquire thereby the right to have the property distributed among them.</p> <p>An assignment for the benefit of creditors contained a provision, that no creditor should be deemed a party to it or entitled to the benefit of its provisions who failed to assent in writing to its terms within thirty days from its date, provided, that one who was a creditor at the date of the assignment might become a party after thirty days with the written consent of the assignee. The assignee by a writing indorsed on the assignment extended the time within which creditors might become parties to a period of four months from the date of the instrument. One of the creditors, knowing when the time of signing expired, neglected to sign until after the expiration of the four months and on application to the assignee was refused permission to sign. In a suit in equity brought by this creditor, to have the assignee ordered to give his written consent to the plaintiff's becoming a party to the assignment, a demurrer to the bill was sustained, on the ground that the defendant was justified in refusing his consent. The fact, that the assignment contemplated a pro rata distribution among the creditors of the assignor and that the plaintiff was a creditor, was not enough to entitle the plaintiff to relief. The assignment also contemplated that only those creditors who signed it within the required time should become parties to it, and the plaintiff had not become a party in the manner provided.</p>

<p>Contract by the widow of Calvin Heyward Sawin for alleged breach of an agreement to purchase from her a certain lot of land acquired by her under the will of her late husband. Writ dated March 18,1901.</p> <p>The answmr admitted the agreement and that the plaintiff offered to perform as alleged, but alleged that the only title of the plaintiff to the premises she agreed to convey was derived from the will of Calvin Heyward Sawin, and that her title was not such as to enable her to convey to the defendant a clear title in fee simple, and that for that reason the defendant refused to perform.</p> <p>The Superior Court upon agreed facts gave judgment for the plaintiff; and the defendant appealed.</p>

Bill in equity by a mortgagee of certain land, to enjoin the enforcement of mechanics’ liens thereon, filed March 1,1901.

<p>Bill in equity by the owner of certain land in Walpole crossed by a small stream running into the Neponset River and used by the Massachusetts Chemical Company, one of the defendants, as a raceway, alleging, that nearly an acre-of the plaintiff’s land lay between the stream and the Neponset River, and to obtain access to this piece of land, the plaintiff for a long time had maintained, across the stream a bridge suitable for the passage of teams, and that the defendant company wrongfully entered with a large force of men upon the land of the plaintiff, removed the bridge, cut down the trees and underwood growing upon the banks of the stream, and excavated and dug away the bed and the banks of the stream and deposited the earth and the stones so excavated upon the plaintiff’s land, and in so doing increased the depth of the stream by about two feet and its width by over ten feet and deprived the plaintiff of all means of access to the acre of land mentioned above, and praying, first,' that an injunction issue perpetually restraining the defendant company, its officers and agents, from repeating the wrongful acts alleged, or trespassing upon the plaintiff’s land, or injuring or disturbing the plaintiff’s property; second, that the defendant company be ordered to restore the land and property of the plaintiff to its original condition; third, that adequate damages be awarded to the plaintiff for the injury to her property; and, fourth, for such other relief as the case might require, filed October 11, 1900.</p> <p>The defendant company in its answer relied upon a deed from one Oliver Clap to the Union Manufacturing Company, the defendant’s predecessor in title, dated December 22,1814. It also alleged that whatever it had done upon the land of the plaintiff was done' lawfully by virtue of its title and mill privilege, and under the authority derived from Pub. Sts. c. 190. The deed from Clap conveyed a strip of land “ eleven feet wide to the Neponset River so called, said land is occupied as a raceway for the water which carries said factory”; that is, the factory of the grantee, the Union Manufacturing Company, the defendant’s predecessor in title.</p> <p>The case was heard in the Superior Court, by Bell, J., who made a decree dismissing the bill without costs; and the plaintiff appealed. The judge, at the plaintiff’s request, made the following statement of facts found by him:</p> <p>There was an old raceway leading across the plaintiff’s land from the defendant’s mill to the river below. The right to maintain this raceway had been conveyed to the defendant’s predecessors in title early in the century. The width fixed by the deed was eleven feet. This raceway had become narrowed and stopped up in places and was wider than eleven feet in others. The river below its mouth had become partly filled by sand and stones washed down by a freshet. The defendant corporation at the time of filing the bill had substantially com-</p> <p>pleted the work of clearing out the raceway and the river below it. In doing so it had widened the raceway to twenty feet or more. The officers of the defendant corporation testified that it was their intention to put in retaining walls leaving a width of fifteen feet. In addition to widening the raceway beyond eleven feet, they deposited some of the materials removed upon the banks. The value of the plaintiff’s land interfered with was very small, not exceeding $25. There is no difficulty in restoring the soil. But the advantage to the plaintiff would be very small while the expense would be very much more than the advantage. The injury to the plaintiff can be fully compensated by damages.</p>

<p>Two BILLS IN equity, one, to compel the defendant Edward B. Dahlquist to convey to the plaintiff certain lots of land numbered 15, 17 and 19 on Bolton Street in that part of Boston c%lled South Boston belonging to the said defendant and conveyed to him by an unrecorded deed of the defendant the Dahlquist Manufacturing Company, and to compel the defendant, Mary E. Dahlquist, wife of said Edward, to execute a release of dower in the said land, and the other, to compel Mary E. Dahlquist to convey to the plaintiff a certain lot numbered 40 on Third Street in said part of Boston belonging to the said Mary, and to compel Edward B. Dahlquist to join in said conveyance as her husband, filed respectively January 6, 1899, and December 8,1898.</p> <p>The answers in both cases set up, that there was no memorandum in writing of the contract of sale alleged in the plaintiff’s bill signed by the party to be charged therewith or by some person thereto by him lawfully authorized, as required by Pub. Sts. c. 78, § 1.</p> <p>The Superior Court gave a decree for the plaintiff in each case, ordering the performance of both contracts alleged; and . in each case the defendants Edward B. and Mary E. Dahlquist appealed.</p> <p>It appeared by the evidence which was printed by agreement, that in each case the land in question was offered at auction through one Hogan as auctioneer and that the plaintiff was the highest bidder and complied with the terms of the sale. As to the sale of the lots on Bolton Street, Hogan testified, that the following instrument was signed by him and by the plaintiff, and that no change was made in the instrument after it was signed, except that “ James M. White”, the plaintiff’s name, in the first line of the agreement, was filled in afterwards by a girl in the office. The instrument was as follows: “ South Boston, November 22, 1898. I Hereby Acknowledge, That James M. White has been this day declared the highest bidder and purchaser of a certain piece or,parcel of land with building thereon situated in that part of Boston called South Boston, being numbered 15, 17, 19 Bolton street, in said South Boston. Building of brick two stories high. Lot of land .40 X 55 for the sum of Twenty-seven Hundred Dollars; and that he has paid into my hands the sum of One Hundred Dollars, as a deposit, and in part payment of the purchase money; and I hereby agree that the vendor shall in all respects fulfil the conditions of sale. John Hogan. -</p> <p>“And I hereby agree to pay remaining sum of Twenty-six hundred Dollars, unto the vendor, on or before the 30th day of December, 1898. James M. White.”</p> <p>The plaintiff testified, that at the time of one of the interviews described by him he received from the defendants’ counsel an unexecuted draft of a deed of the Bolton Street property from Edward B. Dahlquist, to the plaintiff, with a clause releasing the dower of Mary E. Dahlquist. The plaintiff testified to a subsequent tender of the balance of the purchase money due under the agreement made by him to Dahlquist and to Dahlquist’s counsel, Mr. French, at Mr. French’s office, and that he demanded a deed of the property. On cross-examination he testified, that the first time he went to Mr. French’s office, Mr. French had the draft of the deed mentioned above and submitted it to the plaintiff, to take to his conveyancer to examine the title, and that he never returned it to Mr. French; also, that as far as he knew nobody had ever expressed any opinion with reference to the title or with reference to the deed, either to Mr. French or to Mr. Dahlquist, and as far as he knew he or his counsel had kept ■ this draft of a deed ever since that time, and that he did not have the draft of the deed in his possession at the time he called at Mr. French’s the day he made the tender.</p> <p>There also was evidence of a tender by the plaintiff of the balance of the purchase money for the Third Street property. The memorandum of the sale of this property delivered to the plaintiff by the auctioneer was as follows: “Nov. 23d 1898. Received of James M. White One hundred dollars deposit on sale by auction of No. 40 Third street, South Boston. John Hogan.”</p> <p>Hogan testified among other matters as follows: “ The Third Street property and the Bolton Street property are really adjoining property and are connected. There were about the same number of people at the sale on Third Street. Most of the people stayed from the beginning to the end of the sales. There were six bids on the property at 40 Third Street. Mr. White was the highest bidder, and his bid was $900. I declared him to be the purchaser at that sale. Nothing was said at that sale when, the papers were to be passed. I received a check for $100 from Mr. White on the first purchase, the Bolton Street property. I indorsed the check and have the money in the bank. I did not receive any money from him for 40 Third Street at the time of the sale, and Mr. White said he would get me a check. I told him he had no need to as I had already received $100 that bound it. I said, ‘You can bring that up in the morning.’ It was a November day and it was getting a little late, and I was supposed to sell all the machinery in the buildr ing, after selling the building. I told Mr. White I did not want him to bother to run down to his office and back, and that in the morning it would be time enough to bring up the $100. The next morning I received, at my office, a check for $100, ' and have obtained the money on both of these checks. On the next following morning I gave Mr. White no papers at my office. I gave him a paper at the sale, after knocking down 15, 17 and 19 Bolton Street to him. This paper was an agreement that he was the highest bidder, and I had so declared him [identifying the memorandum in regard to the Bolton Street lots printed above]. The next morning I gave him the paper marked [the" memorandum in regard to the Third Street lot], when he gave me his check for $100. At time of sale of 15, 17 and 19 Bolton Street, I stated that buyer had until on or before December 30.”</p> <p>On behalf of the defendants, it was contended: 1. That the auctioneer exceeded his authority' by accepting a check; that, whether the auctioneer was instructed to receive only “ cash ” or no instruction was given as to mode of payment, he could only accept cash, and a check is not cash; and that for this reason both contracts were void. 2. That the memoranda were not sufficient because they did not name or describe the owner of the premises. 3. That the memoranda were not sufficient because they did not contain the material terms of the contract. "4. That the memorandum of the sale of the Third Street property was not sufficient, because not signed on the spot and at the time of the sale, and was not signed until the following morning. 5. As to the sale of the Bolton Street property described in the first entitled cause, the defendant Edward B. Dahlquist contended that, in addition to the other defences above specified, the retention of the draft of the deed, furnished to the plaintiff by the defendant through his counsel, excused him from making the conveyance of that parcel. 6. As to the sale of the property described in the second entitled cause, the defendant Mary E. Dahlquist contended that her knowledge of and acquiescence in the sale was not enough under the circumstances to estop her from repudiating the subsequent acts of the auctioneer.</p>

Two ACTIONS OF CONTRACT upon policies of insurance against fire in the form prescribed by St. 1894, c. 522, § 60, upon a dwelling house and building materials of the plaintiff. Writs dated September 1, 1900. The answer in each case alleged, that in violation of the provisions of the policy the insured property had been sold without the assent in writing of the company, whereby the policy became void.

Contract brought in the name of the plaintiff for the benefit of the C. W. Leatlierbee Lumber Company, to which the plaintiff had assigned all his claims against the defendant before the bringing of this action, upon a written building contract, dated September 6? 1898, set forth in the declaration, together with certain specifications and plans, whereby the plaintiff “ under the direction and to the satisfaction of Frank M. Churchill, architect, acting for the purposes of…

<p>Petition by the selectmen of Dedham under Pub. Sts. c. 113, § 63, for an order compelling the Norfolk Western Street-Railway Company to water High Street in that town in accordance with a restriction contained in a grant of location to the respondent, filed May 24, 1900.</p> <p>The respondent demurred to the petition and the case was heard by Lathrop, J., who was of the opinion that the demurrer should be overruled; and at the request of the i-espondent reported the case for the consideration of the full court. The respondent admitted at the hearing, that if the demurrer was overruled there was no defence to the petition on the merits, and the justice therefore reported, that, if the demurrer was overruled, an injunction was to issue in accordance with the prayer of the petition, with costs. If the demurrer was sustained, the petition was to be dismissed, with costs.</p> <p>By the report it appeared, that the order of location granted by the petitioners to the respondent to lay its tracks in High Street in Dedham was granted on September 19, 1898.</p> <p>Section 23 of the grant of location was as follows: “ Said Company shall water said High Street from curb to curb between the fifteenth day of April and the fifteenth day of November in each year from Memorial Square to the point South of Lowder and High Streets, where paving ceases as herein prescribed : such watering shall be done to the satisfaction of the Superintendent of Streets.”</p> <p>The case was submitted on briefs at the sitting of the court in January, 1901, and afterwards was submitted on briefs to all the •justices.</p>

<p>Probate Court, Jurisdiction. Equity Jurisdiction, Equitable assignment. Real Action, Equitable defence.</p> <p>The Probate Court has no jurisdiction to make a decree, under Pub. Sts. c. 142, § 1, against the administrator of a party to an agreement to convey real estate, for the specific performance of the agreement, without first giving notice to all persons interested.</p> <p>A deed was given by an administrator in obedience to a decree of the Probate Court, under Pub. Sts. c. 142, § 4, for the specific performance of an agreement to convey the land. All parties acted in good faith, but the deed was void, because the decree was made without notice to persons interested. The grantee paid the purchase money in accordance with the agreement, occupied the premises for about twelve years with the knowledge of the heirs at law of the grantor’s intestate and without objection from anybody, made substantial repairs and additions and paid the taxes. In a writ of entry brought by one claiming under an heir at law of the grantor’s intestate, to recover the premises, it was held, that, as an equitable defence under St. 1883, c. 223, § 14, the tenant had a title in the property that would be enforced in equity, being in the position of an equitable assignee of the original contract of sale. In this case the original contract of sale ran to the husband of the tenant. Held, that the tenant’s rights as equitable assignee were not affected by the marital relation.</p>

<p>Evidence, Best and secondary. Real Action. Bankruptcy Act, Section 67 f. Execution, Deed to purchaser at sale, Validity of sale and levy.</p> <p>A writ and an execution and the officer’s return thereon, material to show the demandant’s title in a real action, may be proved by certified copies without producing the originals.</p> <p>A demandant in a real action claiming title'under a sale on execution must prove that there was a valid judgment on which the execution issued, and the recital of the judgment in the execution is not the best or proper evidence to prove it as against a tenant who is a stranger to the proceedings on the execution, whatever might be the case if the judgment debtor were the tenant.</p> <p>In this Commonwealth a certified copy from a registry of deeds is sufficient evidence of the execution of the deed of which it is a copy. A copy of a certificate of entry to foreclose comes under the same rule.</p> <p>Where a deed was proved by a certified copy from the registry of deeds and a copy of a plan referred to in the deed was permitted to be used at the trial, it was assumed that it was used to show the general locality of the premises, and thus was matter within the discretion of the presiding judge.</p> <p>The effect o£ section 67 f of the United States bankruptcy act of 1898 is not to avoid the levies and liens therein referred to against all the'world, but only as against the trustee in bankruptcy and those claiming under him, so that the property may pass to and be distributed by him among the creditors of the bankrupt.</p> <p>A deed to a purchaser at a sale on execution conveying “all the right, title and interest which the said D. had, at the time when the same was attached as aforesaid,” is not bad on the ground that it does not appear that there was any attachment, if earlier in the deed the right, title and interest of the debtor in certain land is spoken of as having been seized on execution.</p> <p>Where all of a debtor’s right, title and interest in certain land is sold on execution and a deed is given by the officer to the purchaser at the sale, it need not appear either in the officer’s return or in the deed, whether the property sold was free from or subject to encumbrances.</p> <p>An officer levied an execution on six different parcels of land and afterwards abandoned the levies on all the lots but one, which he sold on execution. He gave no notice before the time of the sale of the abandonment of the liens on the other lots. Held, that the failure to give notice of the abandonment was no ground for invalidating the sale, as it could not have operated to the prejudice of the debtor. More bidders rather than fewer would have been present in consequence of the failure to give such notice.</p> <p>An obvious mistake in an officer’s return on a levy of execution does not defeat the levy.</p> <p>Pub. Sts. c. 172, §"46, provides that, in giving notice to a debtor of a sale of his property on execution, if the debtor does not reside within the precinct of the officer serving the execution and is not found by him therein, such officer shall send by mail post-paid a copy of the notice addressed to the debtor at his place of residence as described in the execution. An execution served by a deputy sheriff of Middlesex County described the debtor as having a usual place of business in Boston. The return of the officer showed that lie made diligent search for the debtor within his precinct but was unable to find him or that he had any agent or attorney or any abode last and usual or otherwise therein, and that he sent by mail post-paid a notice of the time and place of the sale and a copy of the execution to the debtor addressed to a certain number on a certain street in South Boston, but did not state that the debtor resided at the street and number named. The debtor was present at the time and place appointed for the sale and at the successive adjournments thereof. Semble, that if the notice had been addressed to the debtor at Boston, without adding the street and number, it probably would have been good. Whether, if so, the addition of the street and number and the part of Boston would invalidate the notice, the court did not consider, as the return could be amended by stating, if that was the fact, that the debtor resided at the street and number in South Boston named.</p> <p>Where an officer’s return sets out that a sale on execution was adjourned from time to time by direction of the plaintiff’s attorney, the court cannot say that such adjournments were not adjournments for “ good cause ” within the meaning of Pub. Sts. c. 172, § 30.</p>

<p>Bill in equity by Elizabeth H. Pearson, executrix under the will of William H. Treadwell, and Willard Q. Phillips, executor under the will of Emily Treadwell Phillips, against Robert O. Treadwell, George L. Treadwell and John P. Treadwell, the trustees under the will of Daniel H. Treadwell, to enforce a trust arising from an agreement in writing among the heirs at law and legatees under the will of said Daniel, including the three trustees above named, filed July 12, 1898, and amended February 10, 1899.</p> <p>The agreement sought to be enforced was as follows :</p> <p>“ Know all Men by these Presents that we Robert O. Tread-well, William H. Treadwell, George L. Treadwell, John P. Treadwell, and Emily T. Phillips, children and heirs at law of Daniel H. Treadwell, Esq., late of Portsmouth in the state of New Hampshire, deceased testate, being the legatees under the Will of said Daniel H. hereby mutually agree with each other —•</p> <p>“First, that the income from the Estate of said Daniel H. which has already been received by us, since the seventeenth day of July A. D. 1864 has been properly paid to us, and shall be severally retained by us, anything in the terms of said will to the contrary notwithstanding.</p> <p>“ Second, that the amount of income from said Estate which has never yet been paid to us, and which is still remaining in the hands of the Trustees of said Estate undivided, appears on the books of account of said Estate as ‘ undivided income account,’ and is the property of us individually free and clear of any trust, in equal proportions, to wit one fifth part of said undivided income belonging to each one of us, and forms no part of said Trust Estate and shall not go to the last survivor of us, but shall be paid to each of us upon demand or to our Executors or Administrators; and if any share of said 6 undivided income’ as aforesaid or any other accrued income shall be paid after the decease of any one of us, it shall carry interest from the day of the death of that one of us, to be paid out of the said trust estate; the share of said Geo. L. being applied upon his promissory notes now held by said Trustees agreeably with the terms of an agreement signed by him, dated March 8th, 1872, and now in the hands of said Trustees.</p> <p>“ Third, that the whole income from said trust estate for the year 1874 and for each and every year subsequent thereto, shall each year be paid over by the said Trustees to the person or persons entitled to receive the same by the terms of said Will.</p> <p>“Fourth, that the trust Estate which shall pass to the last survivor of us shall be, and shall be limited to the capital sum which said Trustees received in trust at the death of said Daniel H. with the natural increase thereof, but not any income derived therefrom up to the time when the last survivor shall become entitled to the whole of said estate by the terms of said will.</p> <p>“ Fifth, that the mortgage debt of Thirty five thousand dollars $35000 created by said Daniel H. and secured on land purchased of Thomas Wigglesworth, shall be paid as soon as possible, and shall be paid out of the capital sum destined for the last survivor of us as aforesaid, and not out of any income derived from said trust estate.</p> <p>“ This agreement shall have no binding force and effect upon our rights except it be signed by all of us above named.</p> <p>“ Heidelberg Decern. 10th, 1874. Robert O. Treadwell, W. H. Treadwell. Portsmouth, N. H., February 6th, 1875. Geo. L. Treadwell, John P. Treadwell. Boston, Feb. 17th, 1875. E. T. Phillips. Florence, Dec. 21st, 1874. W. Q. Phillips.”</p> <p>The case came on to be heard before Lathrop, J., who, at the request and with the consent of the parties reserved it for the consideration of the full court upon the pleadings, a master’s report, the exceptions of the defendant John P. Treadwell thereto, which the justice overruled pro forma, and an agreement of the parties relating to such exceptions; such decree to be entered as law and justice might require.</p>

<p>Negligence, Collision of vessels, Violation of statutory regulations, Contributory. Ship, Regulations in case of fog. Agency, Scope of authority.</p> <p>In an action against a steamboat company to recover for injuries alleged to have been received from a steamboat of the defendant running down the plaintiff’s fishing boat while at anchor, it appeared,"that the plaintiff’s boat was a fourteen-foot boat propelled by oars, that the plaintiff and a companion anchored their boat close to the outer edge of the channel in Hull Gut in Boston harbor, and began to fish; that there was fog'or haze in the Gut at the time; that the defendant’s steamboat coming through the Gut on its regular trip when not far distant from its landing place at Hull came into collision with the plaintiff’s boat or passed so near it as to cause the plaintiff to jump out and receive the injuries complained of; that the steamer was running at a low rate of speed and was giving the signals and warning prescribed by the United States statutory regulations in case of fog; and that the plaintiff gave no signal and had no means on board his boat of giving any signal. The regulations provide that in fog or mist, whether by day or night, a vessel when at anchor shall, at intervals of not more than one minute, ring the bell rapidly for about five seconds, and another provision requires, that “All rafts or other water craft, not herein provided for, navigating by hand power, horse power, or by the current of the river, shall sound a blast of the fog-horn, or equivalent signal, at intervals of not more than one minute.” Held, that on all the evidence the plaintiff was not entitled to recover, as it was impossible to say that his violation of the statutory regulation by his lack of signals did not contribute to the accident. Semble, also, that the plaintiff was negligent in anchoring his boat in an improper place and in doing nothing when he saw the steamboat coming, he having made no effort to cut his anchor rope or to row out of danger, and that it could not be said that anchoring his boat in an improper place did not contribute to the collision.</p> <p>The statutory regulations enacted by Congress to prevent collision of vessels are to be interpreted in the same way in the common law courts of a State as they are in the courts of the United States, if the action is for a maritime tort committed upon navigable waters within the admiralty jurisdiction of the United States. These are not mere prudential regulations, but binding enactments; and, when a vessel has committed a positive breach of statute, she must show, not only that her fault probably did not contribute to the disaster, but that it could not have done so.</p> <p>In an action against a steamboat company for injuries caused by a steamboat of the defendant coming into collision in a fog with a boat in which the plaintiff was fishing anchored close to the edge of the channel through a certain gut which was part of the steamer’s regular course, there was evidence of a conversation between the plaintiff and a wharfinger of the defendant who was on his way to strike a triangle on a point of land for the purpose of guiding the steamboat in the fog. A man in the boat with the plaintiff testified, that the plaintiff cried out to the wharfinger “ Are we all right here ? ” and that the wharfinger said “ Yes.” The wharfinger testified, that the plaintiff cried out “ Do you think they can see us t ” and that he replied “ that he thought they could, but they would n’t expect anybody anchored right in the Gut.” Held, that, whatever the conversation was, there was nothing in it which could bind the defendant, there being nothing to show that the wharfinger could give any authority to any one to anchor in the path of the approaching steamboat, or that the plaintiff had a right to rely on the wharfinger’s opinion as to whether his boat could be seen.</p>

<p>Contract to recover a commission for services as a real estate broker, in negotiating a lease of certain property of the defendant in Boston known as the Hotel Reynolds, and in procuring purchasers for that property and an adjacent property known as the Park Theatre, to whom the defendant refused to sell when offered the price agreed upon. Writ in the Supreme Judicial Court dated July 29, 1899.</p> <p>The declaration as amended contained six counts. The first count alleged that the plaintiff procured a customer to purchase from the defendant the Hotel Reynolds and the Park Theatre for an agreed price of $800,000, but that the defendant refused to carry out the terms of the sale or to convey the property, and that the plaintiff thereby earned a commission of $8,000. The second count was for the same cause of action stated in an account annexed. The third count alleged that the defendant employed the plaintiff to procure a tenant for the property in question, and that the plaintiff at once undertook negotiations in her behalf for the leasing of the property, and that on or about January 1, 1899, he procured a tenant for the property at an agreed rental, but that the defendant wholly neglected and refused to carry out the agreement, and thereafter made a lease of the property to the same person through another real estate broker; and that the plaintiff thereby earned his commission upon the leasing of the property, which amounted to $2,750. The fourth count was upon an account annexed, for $2,750 as a commission upon the lease of the property, and for interest thereon from January 1,1898, to the date of the writ. The fifth count alleged that on or about October 1, 1898, the defendant employed the plaintiff to negotiate for her a sale of the properties known as the Park Theatre and the Hotel Reynolds; that the defendant gave to the plaintiff the exclusive right to negotiate the sale of those properties, it being thereby impliedly agreed and understood as a condition of the employment that the properties should be sold at a reasonable price and should remain in his hands as broker, exclusively, for a reasonable time, in order to enable the plaintiff to negotiate and effect a sale thereof; that thereafter the plaintiff expended a large amount of time and money in advertising and in obtaining customers therefor; that while the plaintiff was negotiating with customers for the purchase of the property at the price of $815,-000, the sale price at which it was placed in the plaintiff’s hands, and before the plaintiff had a reasonable opportunity to effect and carry out the sale at that price, the defendant notifled the plaintiff that she would not sell the property at that price, and thereupon established a new price of $1,100,000 for the sale of the property, and notified the plaintiff thereof. Whereby, by the defendant’s refusal to carry out the terms of her agreement with the plaintiff, the plaintiff was unable to effect and completely carry out the sale which he was negotiating. That thereafter the plaintiff’s exclusive services as broker were continued in an attempt to sell the property at the price of $1,100,000; that thereafter, the defendant being made to understand that the price of $1,100,000 was ridiculously excessive, again continued the exclusive services of the plaintiff as broker in an attempt to accomplish a sale of the property at $850,000 net; that while the plaintiff was negotiating the sale of the property to various parties, and before he had had a reasonable time to effect and complete a sale of the same at the price of $850,000 net, the defendant, entirely without excuse, and in violation of her contract of employment with the plaintiff, notified the plaintiff that she thereby withdrew the property from the hands of the plaintiff, and placed it in the hands of another broker. Whereby the negotiations of the plaintiff with various customers being interrupted, and the sale being prevented by the actions of the defendant, in violation of her agreement of employment with the plaintiff as a broker, the plaintiff became entitled to the sum of $8,000 as compensation for his services as broker, rendered at the request of the defendant, the money paid by him for advertising already having been repaid to him by the defendant. The sixth count was on an account annexed for $8,000 for services rendered under a contract of employment as broker for the sale of the Park Theatre and the Hotel Reynolds.</p> <p>At the trial before Morton, J., the first and second counts were stricken out with the consent of the plaintiff’s counsel. The justice against the exception of the plaintiff ordered a verdict for the defendant on the fifth and sixth counts, and against the exception of the defendant submitted the case to the jury on the third and fourth counts.</p> <p>The jury returned a general verdict for the plaintiff in the sum of $2,847.38. Both the plaintiff and the defendant alleged exceptions.</p> <p>The evidence is sufficiently stated in the opinion of the court except upon the defendant’s exception, sustained by the court, to the refusal of the justice to direct a verdict for the defendant on the fourth count. The following extract from the cross-examination of the plaintiff is material under this exception upon the question, whether there was any evidence that, at the time the defendant had changed her mind and refused to let the Hotel Reynolds, the plaintiff had received from Gould and Polio or communicated to the defendant an offer made by them to take the Hotel Reynolds on the terms of the Mann lease:</p> <p>“ Q. Did you ever get any offer from Gould and Polio for that property [the Hotel Reynolds] ? A. No, because I gave them the terms at that time, the same terms given to Mann, and just at that time Miss Crabtree said she would not do anything about the property. — Q. Then I understand you never got from them any offer of what they would give ? A. No. They always talked about hiring it on the same plan that Mann was to hire it on. — Q. And did you ever communicate to Miss Crabtree or to Mr. Gil-man [the defendant’s agent] any offer of- Gould and Polio, — did you ever communicate any offer of theirs ? A. No, sir. —Q. You never had any to communicate, did you ? A. No, sir, there was n’t any offer to be made. — Q. Do you remember this : do you remember that Mr. Gould told you that he might give $25,000 a year for the property if the owner would spend $30,000 in repairs? A. Yes, sir. — Q. And you remember he said, ‘ You understand that is not an offer’? A. Yes, sir. — Q. When did he make that suggestion to you ? A. I think that was in December; I am not sure about it now. — Q. That is the only suggestion of an offer ever made by Gould and Polio, was it not ? A. That was not an offer. — Q. Did you ever state or communicate to Miss Crabtree that Mr. Gould might give $25,000 a year, if she would spend $30,000 ? A. No, I never made that proposition. — Q. Did you ever make, that proposition in any form to Miss Crabtree or to Mr. Gilman? A. Yes, sir. I called on January 2,1899, at five o’clock, and saw Miss Crabtree at the Adams House; she said she was going away and would do nothing about letting the Reynolds until she came back. I told her Mr. Gould would like to hire it, and also Mr. Kraft. That is a memorandum I made shortly after coming back from the Adams House. — Q. What is the memorandum ? A. That is in my diary in the office.— Q. You mean you copied this from your diary? A. Yes, sir. — Q. There is nothing there telling Miss Crabtree what they would give? A. There was no question of what they would give; they would have to take it at her terms or not get it. — Q. That • is what I ask you, if you made any suggestions ? A. They were ready to take it on the terms. — Q. I ask you if you gave her any idea.at that interview of what they would give ? A. No. They were ready to hire the hotel on the terms already talked about. That is the way I understood it. — Q. Did you ever tell her, or tell Mr. Gilman, — name any figure that Gould and Polio said they might give? A. No, except that they would like to hire the hotel.”</p> <p>The plaintiff further testified, on cross-examination, that on November 23,1898, he wrote a letter to Mr. Gilman, stating that he had a tenant for the Hotel Reynolds who would pay $25,000 a year rent, the owner to make repairs and any necessary alterations. [It had appeared by other evidence that this offer had been refused by the defendant.] The plaintiff then testified as follows: “ The party that I was speaking of in that letter, and whom I did not name, was Mr. Gould. — Q. And that is the only proposition that you made to Miss Crabtree, and it is only through her attorney, as to what Mr. Gould might do, is it not ? A. That is the only direct proposition.”</p> <p>Later the plaintiff testified, .as follows: “A. He [Gould] always intimated to me that he would hire it if he could get it, when she decided to rent it. — Q. You were going in there from time to time to get your supper, and he would ask you if there was anything new? A. Yes.— Q. And you did not try to do anything about leasing that property to Gould and Polio after the first of January, no more than to go in and get your supper, and ask if there was anything new? A. Nothing. They were ready to hire when Miss Crabtree was ready to let it, and I kept writing her to know if she would let it.”</p> <p>On re-direct examination, the plaintiff testified: “ I never submitted any offer other than that of $25,000 a year to Miss Crabtree or Mr. Gilman. The proposition of Mr. Mann was substantially that of the terms stated in the lease to Gould and Pollo. I told Gould and Polio that those were the terms, $25,000 for the first five years and $30,000 for the second five years, and the lessor to spend $35,000 in alterations and repairs, and to get six per cent interest on the $35,000. After the Mann lease fell through I saw Gould and Polio that same night. They started right in to look up the details of lease. I told them the terms of the Mann lease. On January 2, I told Miss Crabtree at the Adams House that I had Gould and Pollo and also Mr. Kraft who would like to hire the hotel. She said she was tired and was going away, and would not take the matter up until she came back. I told her they were ready to hire on the same terms as the Mann lease.”</p>

Contract by the collector of taxes of the city of Lowell to recover the sum of $2,576 and interest alleged to be a legal tax for the year 1889 upon the defendant, as trustee, he being a resident and inhabitant of that city. Writ dated July 6,1895.

<p>Petition under Sfc. 1898, c. 490, by more than ten taxable inhabitants of the city of Lowell, the first named being the lowest bidder hereafter mentioned, against that city, its treasurer, its board of health and the Courier-Citizen Company, to enjoin the payment of money by the city to the company named under a contract made with that company by the board of health and alleged to be illegal, filed February 21, 1901.</p> <p>In the Superior Court, the case was heard by Sheldon, J., who, at the request of the parties, reported it for the determination of this court, such decree to be entered as justice and equity might require.</p> <p>It appeared by the report, that, a demurrer to the petition having been overruled, the respondents by their answer and by subsequent agreement admitted the truth of the following allegations of fact contained in the petition :</p> <p>That the City Council of Lowell passed an ordinance approved by the mayor on December 15, 1900, entitled “ An Ordinance providing for the printing of the Union Label on all printing for the City of Lowell,” which ordinance was as follows:</p> <p>“ Section 1. That all printed matter for the City of Lowell shall hereafter bear the imprint of the Union Label of the Allied. Printing Trades Council of Lowell, Mass.</p> <p>“ Section 2. That in calling for bids for city printing hereafter, the Chief of the Department of Supplies shall make stipulation in accordance with Section 1 of this ordinance.</p> <p>“ Section 3. This ordinance shall take effect upon its passage.” ¡</p> <p>That the “ Union Label ” referred to in the foregoing ordinance was a device the use of which in Lowell was" controlled or assumed to be controlled, by a voluntary association called the “ Allied Printing Trades Council, Lowell, Mass.,” which permits the use of the label only by printers and printing houses who employ exclusively as compositors and pressmen members of “ The Typographical Union,” so called, and thé “ Printing Pressmen’s Union,” so called, and that, if the terms of the ordinance are observed and enforced, the effect of the ordinance is that no printing for the city of Lowell can be done except by printers who employ exclusively as compositors and pressmen members of the two last named voluntary associations ; that on or about February 7, 1901, the board of health of Lowell, by one Horace H. Knapp, their agent, solicited certain printers in Lowell, including the defendant Courier-Citizen Company and the plaintiff Charles R, Goddard, doing business under the name of The Butterfield Printing Company, to submit bids for the printing of sundry blanks, letter-heads and note-heads, and the Courier-Citizen Company, in response to this solicitation offered to do the printing for the sum of $24.50, and the Butterfield Printing Company, in response to the solieitation offered to do the same printing for the sum of $16.55, which last named offer was the lowest bid received for the printing by the board of health; that the Courier-Citizen Company employs exclusively as compositors and pressmen members of the two unions last named and has the right to use the label above mentioned, while the Butterfield Printing Company does not employ exclusively members of those unions and does not have the right to use the label; and that on February 19, 1901, the board of health awarded the contract to the Courier-Citizen Company.</p> <p>In addition to the allegations of fact admitted as above, the judge reported the following evidence: The petitioners introduced in evidence the record of a meeting of the board of health of the city of Lowell, held February 19, 1901. This record was as follows:</p> <p>“ Lowell, Mass., February 19, 1901, 4.30 P. m. Regular meeting of board,, all members present. Records of last meeting read and approved. The following bids for printing the following articles were read: 500 Blanks, sample No. 1 ; 500 Blanks, sample No. 2; 500 Blanks, sample No. 3; 2 Reams Letter Heads, No. 4; 1 Ream Letter Heads, No. 4; 2 Reams Letter Heads, No. 5; 1 Ream Letter Heads, No. 6; 1 Ream Letter Heads, N. 6; 1,000 Plumbing Applications, No. 7.</p> <p>“ The Union Printing Company, $33.80; The Lawler Printing Company, $30.65; O. A. Libby, $29.35; Lowell Sun, $24.50 ; Courier-Citizen Company, $24.50; Butterfield Printing Company, $16.55.</p> <p>“ On motion it was voted to award the printing to the Courier-Citizen Company, as they use the Union Label, prescribed and voted by the Lowell City Council, Dec. 15,1900. Approved, John H. McGuinness, Secretary.”</p> <p>It was agreed that the Lawler Printing Company and the Courier-Citizen Company above named were authorized by the “ Allied Printing Trades Council of Lowell, Mass.,” to use the “ Union Label,” so called, and that the other printers and printing companies above named were not so authorized.</p> <p>The respondents introduced evidence tending to show, that the actual cost of doing the work under the contract in question would have exceeded the sum of $16.55; but the judge found that not to have been the fact.</p> <p>It was agreed by counsel, that in calling for bids there was no discrimination by the board of health against the non-union printing offices.</p> <p>St. 1896, c. 415, is an act to amend the charter of the city of Lowell.</p> <p>Section 3 creates a department of supplies and provides for the election of the chief of this department by the voters of the city at the annual municipal election.</p> <p>Section 6 begins as follows : “Theheads of the several departments and offices shall have the general charge and management of all matters pertaining to their respective departments, and shall make and execute all contracts necessary therefor, except for the purchase of material and supplies; but every contract made as aforesaid in which the amount involved exceeds three hundred dollars shall be approved by the mayor before going into effect.”</p> <p>Section 7 is as follows: “ Neither the city council nor either branch thereof, nor any committee or member thereof, shall directly or indirectly take part in the employment of labor, the purchase of material, the construction, alteration or repair of any public works or other property, or in the care, custody or management of the same, or in general in the expenditure of public money or in the conduct of the executive or administrative business of the city, except as may be necessary for defraying the contingent and incidental expenses of the city, council or of either branch thereof; nor shall they or either of them take part in the making of contracts.”</p>

<p>Two actions OF tort, one by a wife for injuries and the other by her husband for loss of her companionship and services, by reason of the plaintiff in the first case catching her foot in a rubber mat curled up in the middle by wear and fastened down at both ends, as_ she turned after passing through a door with portiéres, and falling down a flight of stairs. Writs dated respectively September 22, 1897, and March 24, 1899.</p> <p>The first case was before the court on exceptions taken at a former trial, which were sustained by this court in a decision reported in 175 Mass. 476. Later the two cases were tried before Aiken, J., who refused to order verdicts for the defendant, and the jury returned verdicts for the plaintiff in the first case for $5,500 and in the second case for $750.</p> <p>The judge reported the cases for the determination of the questions of law by this court. If verdicts for the defendant should have been ordered on the evidence as it stood, or if verdicts for the defendant should have been ordered on the evidence after striking out what should have been excluded, judgments were to be entered for the defendant. If there was error in any other rulings of the judge, new trials were to be ■ ordered. If there was no error in the rulings then judgments were to be entered on the verdicts.</p> <p>There was also a bill of exceptions allowed by Fessenden, J., to an order of the Superior Court to the president of the defendant to answer certain interrogatories. The questions raised by the report and that raised by the bill of exceptions are stated in the opinion of the court.</p>

<p> Alteration of Instruments. Negotiable Instruments Act. Equity Jurisdiction. </p> <p>Semble, that a bill in equity seeking relief on the ground that an alteration was made in a certain negotiable instrument should describe the alteration, in order that the court may see whether as matter of law it was a material alteration under St. 1898, c. 533, § 125. Whether, such defect could be taken advantage of on a general demurrer for want of equity, quaere.</p> <p>Whether § 124 of the negotiable instruments act, St. 1898, c. 533, which is copied from § 64 of the English bills of exchange act, should be construed as the original section probably would be in England, that the effect of a material alteration by whomsoever made would be to avoid the note as to all parties except those consenting to it and subsequent indorsers, or whether the rule in this Commonwealth as laid down in Drum v. Drum, 133 Mass. 566, would be applied, that a material alteration of a note by a stranger will not avoid it, quaere.</p> <p>Semble, that under St. 1898, c. 533, § 124, where a loan of money is secured by a note and mortgage, a material alteration of the note without fraud may not cancel the debt or avoid the mortgage.</p> <p>A bill in equity, to restrain the foreclosure of a mortgage on the ground that after the delivery of the mortgage and note there was a material alteration of the note without the plaintiff’s assent, contained no allegation of fraud or of fault on the part of the mortgagee, and no allegation that the note or the debt which the mortgage was given to secure had been paid or that there was any tender or offer of payment. Held, that the bill did not state a case which entitled the plaintiff to relief in equity.</p>

<p>Evidence, Opinion, Cross-examination.</p> <p>On the issue of the soundness of mind of a testatrix, each of four witnesses was asked whether he or she, during the time mentioned, observed in the testatrix “ any peculiarity of manner, speech or conduct.” The witnesses answered “ No ” or “ Never.” Held, that the question did not call for an opinion but for a fact, and was admissible.</p> <p>On the issue of the soundness of mind of a testatrix, a witness for the contestants testified to peculiar actions of the testatrix. It had appeared in evidence that six years before the date of the will, the testatrix made a present of $1,000 to a son of the witness. On cross-examination the witness was asked “ Do you think that at that time — did you at that time think that the testatrix had suf, fieient mental capacity to give that money to your son 1 ” He answered “ I suppose she had.” Another witness, who had testified to peculiar actions of the testatrix, was asked on cross-examination about a certain remark made to the witness by the testatrix, and was then asked “Do you think she knew what she was about when she said that ? ” and answered “ I don’t know,” and then being asked “ What is your opinion ? ” answered “ I think she was all right at that time.” To the further question “ Did you think at that time she knew what she was talking about 1 ” the witness answered “ I think she did,” and to the question “ Do you think so now 1 ” gave an affirmative answer. Held, that in spite of the rule that a witness, who is not an expert or a subscribing witness to the will, is not allowed to give his opinion as to the soundness of mind of a testator, the questions put in this case afforded the contestants no ground for exception ; that tlie whole object of the questions was to show how the testatrix appeared to the witnesses at the times in question and thus to show the improbability of the previous statements made by the witnesses, and that for this purpose the cross-examination was legitimate, although the result might have been reached in a less questionable manner.</p> <p>When evidence admissible for one purpose is inadmissible for another, upon which it would have a bearing if not excluded by rules of law, it must be assumed that a justice passing upon the facts considers it only upon those issues which it legitimately affects. Thus expressions of opinion as to the sanity of a testator at the time he did certain acts, admitted on cross-examination for the purpose of showing the improbability of the statements made by the same witnesses on their direct examinations, will be assumed to have been taken into account, by tlie justice who allowed the will, only so far as they tended to contradict premises seeming to lead to a different conclusion, and not as evidence tending in itself to establish sanity.</p> <p>On the issue of tlie soundness of mind of a testatrix who had been a domestic servant, a niece of the testatrix who was a servant in the same house testified as a witness for the contestants to many peculiar actions of the testatrix, and as to her using disrespectful language in the presence of her employer and disobeying his orders. She was asked on cross-examination “ Did you ever hear Dr. G. find any fault with your aunt during all the time you were there, and if so, what did-he say f ’’ The question was admitted for the purpose of contradicting the story told by the witness on her direct examination. Tlie witness in answer testified to a number of times when the employer had found fault with the testatrix. Held, that the question was admissible.</p>

Contract for breach of an ageement to convey to the plaintiff certain real estate in Belcher town in the county of Hampshire and certain personal property contained in the house and barn on the premises for the price of $6,000. Writ dated June 3, 1896. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff in the sum of $7,271; and the defendant alleged exceptions, which are stated in the opinion of the court.

<p>Bill in EQUITY in the Superior Court by the town of Middle-borough -praying for a decree, that the value of certain land, buildings and appliances purchased and held by the town for the purpose of its gas and electric light plant, and later taken for a highway by it in carrying out a decree of the Superior Court on the petition of its selectmen for the abolition of a grade crossing under St. 1890, c. 428, and the damages incident to such taking, are items of expense incurred by the plaintiff which it is entitled to have ascertained and apportioned under the act, filed June 19, 1900.</p> <p>In the Superior Court the defendants demurred, and the case was reserved by Brdley, J., for the determination of this court on the bill and demurrers.</p> <p>The petition alleged, that commissioners duly appointed by the court'filed their report, in which they stated that to make the alterations prescribed required the taking of certain parcels of land for highway purposes, including a portion of the land and buildings belonging to the municipal lighting plant, and changing very materially the grade of the street on which those premises abutted; and that the report of the commissioners, with the town’s assent, on June 19, 1899, was affirmed by a decree of the Superior Court. On the ground that § 5 of St. 1890, c. 428, gave no remedy for the assessment of damages in such a case, the bill prayed for relief under the general equity powers conferred by the act.</p> <p>The case was argued at the bar in January, 1901, an'd after-wards was submitted on briefs to all the justices.</p>

<p>Tort to recover damages on account of the destruction by fire of the grist mill of the plaintiffs with its additions and fixtures and the personal property therein contained, alleged to have been caused by a spark from a locomotive engine of the defendant, the first count being at common law and the second under Pub. Sts. c. 112, § 214. Writ dated June 11, 1898.</p> <p>At the trial in the Superior Court, before Maynard, J., the case was submitted to the jury upon the second count on the sole question whether the fire was caused by sparks from the defendant’s engine. The jury found for the plaintiffs. The question of damages was not submitted to them. The defendant alleged exceptions, of which those relied upon at the argument are stated in the opinion of the court.</p>

<p>Two ACTIONS OF CONTRACT by the same plaintiff against two different insurance companies, each to recover on a policy of fire insurance in the Massachusetts standard form for the loss by fire of a dwelling house and contents and barns in the town of Sandisfield. Writs dated-April 8, 1899.</p> <p>At the trial in the Superior Court, before Dewey, J., the judge refused to order verdicts for the defendants, but, after having read to the jury a portion of the opinion in Hamden v. Milwaukee Mechanics' Ins. Oo. 164 Mass. 882, ruled that there was no evidence to warrant a finding that either of the defendants had waived its right to require the filing of proofs of loss in accordance with the terms of the policy, and that in each case the burden was upon the plaintiff to prove that she complied with the provisions in the policy according to the legal meaning of it. “ And, of course, according to this decision which I have read to you, she must prove that in the sense of the policy, she furnished the proofs of loss ‘ forthwith ’; provided she used due and reasonable diligence in regard to it, and in furnishing it.”</p> <p>The jury found for the plaintiff in the sum of $783.85 in each case; and the defendant alleged exceptions which, after the death of Dewey, J., were allowed by Fox, J., under St. 1894, c. 412.</p> <p>The requirement of proof of loss in each of the policies was in accordance with St. 1894, c. 522, § 60, in the following form: “ In case of any loss or damage under this policy, a statement in writing, signed and sworn to by the insured, shall be forthwith rendered to the company, setting forth the value of the property insured, the interest of the insured therein, all other insurance thereon, in detail, the purposes for which and the persons by whom the building insured, or containing the property insured, was used, and the time at which and manner in which the fire originated, so far as known to the insured.”</p> <p>The plaintiff relied on the following facts to excuse her delay in presenting the required statements. The fire occurred on October 3, 1898. The plaintiff’s husband was somewhat of an invalid, and the plaintiff was troubled with asthma and heart difficulty and suffered much at the time of the fire from excitement and her efforts in saving her property. She and her husband went home with a neighbor and the furniture which was saved was moved to his house. On October 4, the day after the fire, the plaintiff sent a telegram to each of the defendants notifying it of the loss. The plaintiff testified, that on October 7 she received a telegram from her son saying that his child was ill, and that he wanted her to go to his home in Dresden, New York; that she went on the morning of the 8th, and the child died on the morning of the 9th ; that she stayed at her son’s in Dresden, New York, until some time in the latter part of October, to care for her daughter who was very ill, not thinking it prudent to leave her sooner; that she then returned to New Marlborough in this Commonwealth, which is the nearest village to the property that was burned; that she remained at New Marlborough until the day after election in November, 1898, when she moved her goods and went to Dresden, New York, where she was ill for about two weeks.</p> <p>The sworn statements were mailed by the,plaintiff on December 8, 1898, and were received by the defendants respectively on December 10 and 12.</p>

<p>Lewd, Wanton and Lascivious Person. Evidence, Admissions.</p> <p>Where on a complaint, under Pub. Sts. c. 207, § 29, charging the defendant with being a “ lewd, wanton and lascivious person in speech and behavior ” the proof is confined to the conduct of the defendant on a single occasion, the conduct proved is not the offence but only a ground of inference that the defendant is a person of the kind described, and everything that bears upon the inference to be drawn from his conduct should be admitted. If, therefore, a defendant is shown to have been guilty of lascivious conduct in a room with women, he is entitled to prove that he went to the room with innocent intent.</p> <p>On the trial of a complaint, under Pub. Sts. c. 207, § 29, against a married man for being a “ lewd, wanton and lascivious person,” the evidence related to the conduct of the defendant on a single occasion and warranted the inference that he was then practising personal familiarities or having intercourse with a certain woman. Whether he should have been allowed to show a judgment of his acquittal upon an indictment for adultery on this same occasion, quaere.</p> <p>In a criminal case the defendant’s failure to reply to a statement made in his presence concerning a material matter and under such circumstances as to call for a reply or denial, is evidence against him.</p>

Tort by a passenger for injuries alleged to have been caused by the sudden starting of a train of the defendant when the plaintiff was about to alight therefrom. Writ dated March 19, 1900. At the trial in the Superior Court, before Mason, C. J., the judge refused to rule that the plaintiff was not entitled to recover, and submitted the- case to the jury who returned a verdict for the plaintiff in the sum of $4,000.

<p>Contract upon a bond given to dissolve an attachment of land of the principal obligor on a writ against third persons. Writ dated May 9, 1900.</p> <p>The bond was dated January 3, 1900, and ran to the plaintiff, Charles F. Berry. The recital and condition were as follows: “The condition of this obligation is such, that whereas said Berry has caused the goods and estate of said Frank Wasserman, to the value of two thousand, dollars, to be attached on special precept in a civil action, by virtue of a writ bearing date the 25th day of April, A. D. 1899, and returnable to the Municipal Court of the City of Boston for Civil Business, to be holden at Boston, within the county of Suffolk in said Commonwealth, on the sixth day of May, A. D. 1899; in which writ said Berry is plaintiff, and Rebecca Wasserman and David Wasserman are defendants. And whereas said Frank Wasserman wishes to dissolve the said attachment according to law.</p> <p>“ Now, therefore, if the above bounden Frank Wasserman shall pay to the plaintiff in said action the amount, if any, that he may recover in the action of Berry versus Rebecca Wasserman et al., within thirty days after the final judgment in said action; and after said Berry shall establish his title to the land in a writ of entry against said Frank Wasserman, he, said Frank, having the record title thereto at the time of said attachment, the sum ascertained to be the value of the land, less the sum unpaid on the mortgages outstanding thereon at' the time of said attachment, or so much thereof as shall satisfy the amount, if any, which said Berry shall recover upon final or special judgment after said Berry shall establish his title to said land as aforesaid, under Chapter 171 of the Public Statutes, in the suit of said Berry against said Rebecca and David Wasserman ; the sum, if any, for which said judgment shall be entered; and also, if the above-named sureties shall pay to the said Berry within thirty days after the entry of any special judgment in said action, after said Berry shall establish his title to said land as aforesaid, in accordance with Section 1 of Chapter 405 of the acts of the Commonwealth of Massachusetts, of the year eighteen hundred and eighty-eight, the sum, if any, for which said judgment shall be entered, and after said Berry shall establish his title as aforesaid, then the above written obligation shall be null and void ; otherwise to remain in full force and virtue.”</p> <p>The Superior Court sustained a demurrer to the declaration and gave the plaintiff leave to amend. The amended "declaration contained the following: “ And the plaintiff further says that no sum has been ascertained to be the value of any land or estate attached in said action the record title whereof stood in the name of Frank Wasserman at the time of attachment; and that there is no court or tribunal wherein a writ of entry to establish his right to recover on said bond can be maintained; and that by reason of the failure and omission of the defendants to have the value of the land ascertained and to have the sum ascertained to be the value of such land inserted in the condition of said bond, the defendants have waived the bringing of any writ of entry by the plaintiff before suing on said bond; and have made the bringing of an effective writ of entry impossible.”</p> <p>The declaration further averred, that on April 2, 1900, the plaintiff recovered judgment in the action named in the sum of $1,367.67 damages and $38.99 costs, that the judgment had never been satisfied or reversed and that no part thereof had been paid for more than thirty days after the final judgment in said action or up to the bringing of this action.</p> <p>The defendants demurred to the amended declaration and among other causes for demurrer alleged, “ that it does not from said declaration appear that the plaintiff has performed the conditions precedent to the right of the plaintiff relying thereon in said bond contained, nor does the plaintiff set forth his excuse for the non-performance thereof, nor does the plaintiff set forth such facts as would be a waiver of said conditions.”</p> <p>■ The Superior Court sustained the demurrer and gave judgment for the defendants; and the plaintiff appealed.</p> <p>The case was argued at the bar in January, 1901, and after-wards was submitted on briefs to all the justices.</p>

<p>Negligence, In driving, Contributory.</p> <p>In an action against a street railway company for injuries caused by the plaintiS being run into by a car of the defendant, it appeared by the plaintiS’s evidence, that the plaintiS was driving in an open wagon approaching a street along which the defendant’s tracks ran; that when eighty feet distant from the tracks he had a clear view of the tracks for a distance of from three hundred to three hundred and fifty feet from the corner he was approaching,; that he looked in both directions and no car was in sight; that from this point until his horse was actually upon the track his view was so obstructed by trees that he could not see a car coming from the right; that when on the track he saw a car ten or twelve feet away coming from the right at the rate of from ten to sixteen miles an hour; that the horse turned or was turned by the plaintiS to the left and was struck on his hind quarters by the car and the plaintiS thrown out and injured; that the plaintiS drove over the eighty feet intervening between his view of the tracks and the point of collision at the rate of from four to five miles an hour, which was the usual rate of speed of the defendant’s cars at this place; that while so driving the plaintiS listened but heard no gong and no noise indicating the approach of a car; that it was shortly after seven o’clock on the evening of November 24, and a light snow was falling with a little rain. Held, that there was evidence to go to the jury that the plaintiS was in the exercise of due care ; that it might have been more prudent, to drive over the eighty feet where the plaintiS’s view to the right was obstructed at the usual rate of speed of the defendant’s cars at that point, than to have driven more slowly and thus have given a car which was more than three hundred feet away when the plaintiS saw the tracks more time to get to the crossing, and the court could not say as a matter of law that the plaintiS should have got down from his wagon, gone forward in advance of his horse and looked to see whether a car was coming before driving on to the crossing.</p>

<p>Tax, On collateral legacies. Limitations, Statute of.</p> <p>St. 1891, c. 425, imposing a tax on collateral legacies and successions, provides in § 4 that all taxes imposed thereby shall be payable by executors, administrators or trustees “ at the expiration of two years from the date of their giving bond,” and in § 18 provides that “ The treasurer of the Commonwealth shall within six months after the same shall be due and payable, bring suit in his own name for the recovery of all taxes remaining unpaid.” Held, that the provision in regard to the treasurer bringing suit is directory merely, and does not limit the right of recovery to two years and six months after the giving of bonds by executors, administrators or trustees. Whether the general statute of limitations would be applicable to a suit brought by the treasurer after six years from the time when the tax was due and payable, was not before the court and was not considered.</p> <p>Collateral legacies of future and contingent interests are taxable under St. 1891, c. 425. The tax is to be paid when the contingency occurs and the determinatian of tlie value of the future interest is to be postponed until the happening of the event. It is then to be valued as of the time of the testator’s death.</p> <p>In valuing future and contingent interests for taxation as collateral legacies under St. 1891, c. 425, when the contingency has happened, a preceding life interest to be deducted must be valued as of the time of the death of the testator and is to be determined by the actuaries’ combined experience tables and four per cent compound interest, as required by the last sentence of § 13 of the act, without regard to the actual length of life in the particular case.</p> <p>St. 1895, c. 307, exempting from the tax on collateral legacies bequests not exceeding §500, does not apply to legacies to which persons became entitled before it took effect.</p> <p>A testator directed his trustees to pay to his sister quarter yearly during her life such sums as with the rents and income of her own property would give her a net annual income of §10,000, and left remainders which were subject to taxation as collateral legacies under St. 1891, c. 425. The net annual income of the testator’s sister from her own property at the time of the testator’s death was $1,453.20, leaving §8,646.80 to be paid to her by the executors and trustees. Eor the purpose of deducting the sister’s life interest in valuing the collateral legacies, the Probate Court ruled, that she was to be regarded as entitled to an annuity of §8,546.80 during her life. The treasurer of the Commonwealth objected that the amount that was to be paid to her was not an annuity or life estate that could be appraised by the combined experience tables, as required by § 13 of the act, because it was of uncertain amount and might fluctuate from year to year. Held, that for aught that appeared the net income from the sister’s own property had remained and would remain substantially the same from year to year and, if that was so, the annuity fairly might be said to be §8,546.80 during her life, or, as the intention of the testator manifestly was that his sister should receive a net income of §10,000 during her life, the annuity might be regarded as one of §10,000 a year, subject to reduction by the amount of the net income if any received from her own property, so that in computing the value of her interest the annuity properly might be reckoned as one of §10,000 a year, and that in any case the treasurer had no ground for complaint.</p>

<p>Evidence, Admission. Deed, Construction.</p> <p>One who claimed under a deed of release, wishing to show that it convej'ed a certain lot of land belonging to the grantor which was not expressly described in it, testified as follows : “ I showed him [the grantor] that release, and asked him what it meant, and he said, ‘ I don’t know.’ I said, ‘ That is your signature.’ He said, ‘ Yes,’ and I said, ‘ You made it out,’ and he said, ‘ Yes, I made it out,’ and then said, ‘ I don't remember about it.’ ” It appeared that at this time the grantor seemed to be failing and his memory to be very poor. Held, that the evidence did not warrant a finding of a master, that when the deed was shown to the grantor “ he did not attempt to repudiate it or deny that it applied to the property ” which was the subject of the suit, as there was nothing in the evidence which showed that the question, whether the release applied to the land in dispute, was ever presented to the mind of the grantor.</p> <p>In the case of Gerrish v. Gary, 120 Mass. 132, the true boundary on the southeast of the “Penny Ferry lot” in Charlestown, mentioned therein and in this ease, was not in issue, and for that reason it may be doubted whether the statement by the court in Gerrish v. Gari/ as to that boundary line is decisive of the rights of the parties to that suit; but, however that may be, neither Amos nor Phineas Stone, whose rights were involved in the present case, was a party to Gerrish v. Gary or concluded by the decision therein, if it can be taken as concluding anybody as to the southeasterly boundary line of the “ Penny Ferry lot.”</p> <p>In 1860 and thereafter two brothers P. and A. held each one undivided quarter of certain land. J. the son of P. acquired a mortgage on this land. In 1891 P. died leaving his interest to J. Four years later J. produced an unrecorded release from A. to P. dated February 1, 1880, by which he contended that A. had conveyed to P. all his interest in the land. J. recorded this release in 1895, and entered to foreclose his mortgage. In 1896 A. died, and thereafter his heirs brought a bill against J. to redeem from the mortgage. J. set up the release of February 1, 1880, in defence to the bill. The release, after referring to a deed of other land not material, referred to a certain deed from one G. to A., the grantor, dated December 19, 1854, and continued as follows: “ Now therefore the said P. did verbally agree to and with A. now of said Everett that if he the said A. would pay one half of the purchase money with all other incidental ex- ' penses connected with said parcels, and pay one half the costs of all improvements connected with or on said parcels he would convey to him an undivided half part of his interest in the same, I, the said A., having failed in every particular to perform my part of the conditions to be done and performed by me to entitle me to the same do hereby absolutely release all my right, title and interest in and to said parcels of real estate that I may have acquired in any way whatever, and I do hereby remise, release and quitclaim unto the said P. and his heirs and assigns and do absolve him from all obligations under his promise.” There was a deed from G. to A. dated December 19, 1854, but it did not convey the land in question. The mortgaged land was conveyed by another deed from G. to A. dated June 1, 1854, and was not named in the release. It appeared, that the recitals in the release were not in accordance with the facts; also, that after the date of the release no change was macle in the treatment of the property and that after that date as before A. was treated as the owner of a one quarter interest in the land, for eleven years during which P. lived, and for four years after P.’s death during which P.’s clerk was living, and that in 1891 J. in a letter to certain park commissioners offered to sell the land, stating that he was duly authorized by the owners, P. one quarter interest, A. one quarter interest, and two others mentioned. Reid, that the release of February 1, 1880, if it ever took effect at all, applied to the land conveyed to A. by the deed of December 19, 1854, and not to the land sought to be redeemed from the mortgage, which was conveyed to him by the deed of June 1, 1854.</p>

<p> School. Municipal Corporations. </p> <p>St. 1898, c. 496, § 3, provides as follows: “ No member of the school committee of a town in which a public high school or a school of corresponding grade is not maintained shall refuse to approve the attendance of any child residing in sucli town in the high school of some other town or city if such child has completed the course of instruction provided by the former town, and, in the opinion of the superintendent of schools or the school committee of said former town, is properly qualified to enter such high school. If the school committee of such town refuses to grant such approval such town shall be liable for the tuition of such child, in the same manner and to the same extent as if the parent or guardian of such child had obtained the approval of the school committee.” Under this statute a parent made a request of the school committee of a town of the class described in the statute maintaining no high school or school of corresponding grade, for their approval of the attendance of his child at the high school of a neighboring town. The request was not granted and no reason was given for not granting it. The child had completed the course of instruction provided by the home town, The father sent his child to the high school in the neighboring town and sued the home town under the statute for the sum paid for tuition. It appeared, that the child might have gone on with his studies in the home town in some unusual way and probably have been as far advanced as he was by attending the high school in the neighboring town, and thus have been ready to enter the high school which was established the next year in the home town. Held, that these facts warranted, if they did not require, a finding that the school committee refused to grant their approval of the attendance, and that such refusal made the town liable under the statute.</p> <p>Article 18 of the Amendments to the Constitution is as follows: “ All moneys raised by taxation in the towns and cities for the support of public schools, and all moneys which may be appropriated by the State for the support of common schools, shall be applied to, and expended in, no other schools than those which are conducted according to law, under the order and superintendence of the authorities of the town or city in which the money is to be expended; and such moneys shall never be appropriated to any religious sect for the maintenance, exclusively, of its own school.” St. 1898, c. 496, § 3, provides that “ Any town of less than five hundred families or householders in which a public high school or a school of corresponding grade is not maintained shall pay for the tuition of any child who resides in said town and who attends the high school of another town or city, provided the approval of such attendance by the school committee of the town in which the child resides is first obtained. If any town in which a public high school or a school of corresponding grade is not maintained neglects or refuses to pay for tuition as provided in this section such town shall be liable therefor to the parent or guardian of the child furnished with such tuition, if tile parent or guardian has paid for the same, and otherwise to the town or city furnishing the same, in an action of contract.” There is a further provision making the town liable if the school committee refuses its approval of such attendance in a case covered by the statute. Held, that the statute is constitutional. The words of the amendment requiring expenditures to be confined to schools “ which are conducted according to law, under the order and superin- ' tendence of the authorities of the town or city in which the money is to be expended ” as applied to this statute mean the town or city in which the school is where the tuition is given and where payment for it is to be made.</p>

Tort to recover for loss of services of Lilla B. Cook, the plaintiff’s adopted daughter, by reason of her alleged seduction by the defendant. Writ dated July 14, 1900. At the trial in the Superior Court, before Bond, J., the defendant asked for the following instructions: 1. Upon all the evidence the plaintiff is not entitled to recover. 2.

<p>Dog, Statutory liability for injuries by. Constitutional Law.</p> <p>In St. 1889, c. 454, giving damages for sheep killed or injured by dogs, § 1 provides, that when the damages are appraised, the county treasurer shall submit the certificate of damages to the county commissioners, who within thirty days shall examine the bill for damages and make such investigation as they think proper, and issue an order upon the county treasurer for all or any part of the damage. Held, that the requirement in regard to the time of the examination is for the benefit of persons claiming damages, and, in the absence of a request by an interested party for an early examination, is only directory, and the failure of the commissioners to act within thirty days does not render their subsequent action in favor of un injured party invalid.</p> <p>Under St. 1889, c. 454, giving damages for sheep killed or injured by dogs, the return under § 1 of a certificate of damages which contains a slight inaccuracy as to the ownership of the sheep but complies with the essential requirement of an oath as a preliminary to the appraisal, and which contains enougii to identify the proceedings and justify the introduction of oral testimony to correct the error as to the title, does not leave the case as if there were no certificate but satisfies the statutory requirement that a certificate shall be returned.</p> <p>St. 1889, c. 454, and St. 1894, c. 309, giving damages for sheep killed or injured by dogs, are constitutional.</p>

■ Tort to recover damages for an alleged, conspiracy of the defendant, an attorney at law, with his client under examination as a poor debtor, to prevent, by false testimony of the client, the plaintiff’s intestate from obtaining an order for the application of certain money of the client in satisfaction of an execution held by the plaintiff’s intestate against her.

Petition under Pub. Sts. c. 192, § 24, to enforce a lien under § 32 of the same chapter for boarding and keeping certain horses of the defendant, filed in the District Court of Eastern Hampden, April 14, 1900.

<p> Equity Pleading and Practice. Equity Jurisdiction. Trade-mark. </p> <p>Where a bill in equity contains no averment of any fraudulent act or conduct on the part of the defendant, the use of the word “ fraudulently ” in characterizing his acts, adds nothing to the averments of fact in the bill.</p> <p>In a suit in equity by the owner and manufacturer of a proprietary medicine, the trade-mark of which was registered in the patent office of the United States and in the office of the secretary of this Commonwealth, against a retail dealer in drugs and medicines, to restrain him from selling the medicine below a certain price, it appeared, that the medicine was sold by the plaintiff under a written contract by which the' purchaser agreed that he would not sell nor allow any one in his employ to sell the medicine at less than a certain price per box, which was a higher price than that at which the defendant was selling it to the public, that the defendant bought the medicine knowing the conditions on which it was sold by the plaintiff, but did not buy it from the plaintiff or from one who purchased it from him. There was nothing to show that the defendant had fraudulently induced or procured the breach of a contract between the plaintiff and any of his vendees. Held, that the contracts made with the plaintiff by the original purchasers could he enforced only against them, and that a purchaser from a purchaser had an absolute right to dispose of the property as he pleased.</p> <p>A trade-mark does not give the proprietor the right to control the sale by others of articles of his manufacture. It is merely to secure him and the public from deception and fraud as to the origin and source of his goods and of similar goods sold in the market.</p>

<p>Mortgage, Power of sale.</p> <p>A power of sale in a mortgage is a power coupled with au interest, which cannot be revoked by the mortgagor, and is not affected by a decree of a United States court, in a suit to which the mortgagee is not a party, enjoining the mortgagor from transferring any equitable or other interest in the mortgaged property.</p>

<p>Tort against the receivers of a railroad company for alleged negligence. Writ dated October 1, 1897.</p> <p>In the Superior Court, Hardy, J., ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Three petitions to enforce mechanic’s liens brought by Heman Osborne against Frank D. Barnes, as owner, and the Northampton Co-operative Bank, as mortgagee, George S. Whit-beck intervening in each case, the original petitions filed in the District Court of Hampshire on June 28, 1900, and the intervening petitions on August 14, 1900.</p> <p>On appeal to the Superior Court the cases were heard by Maynard, J., on an auditor’s report. The judge refused the rulings requested by the respondents and made a decree establishing the liens of both Osborne and Whitbeck in each case; and the respondents alleged exceptions. The appeal from the judgment of the District Court of Hampshire was taken only by the respondent Barnes, but both respondents appeared in the Superior Court and both joined in the exceptions to the decree of that court.</p> <p>The exceptions and the matters to which they relate are stated in the opinion of the court, except the ninth request for a ruling, referred to in the last paragraph of the opinion, which was as follows: “ The respondent Barnes asks the court to rule that if the respondent, the Northampton Co-operative Bank, is not properly before this court on appeal, that the record of the case as sent up from the District Court of Hampshire shows no record of any judgment of the District Court affecting its rights as mortgagee.”</p>

<p>Tort, at common law, for personal injuries sustained by the plaintiff while in the employ of the defendant. Writ dated August 10, 1900.</p> <p>The declaration was as follows: “ And the plaintiff says that he was in the employ of the defendant as his servant, and that it was the duty of the defendant to furnish him with safe and suitable tools, machinery and appliances for his work, while so in his employ; but the defendant carelessly and negligently failed so to do, but did furnish him with unsafe, defective, and dangerous tools and machinery, whereby, and while himself in the exercise of due care, the plaintiff was hurt and injured.” Subsequently the plaintiff was allowed to file an amended count alleging ignorance of the danger, and want of proper in-, structions.</p> <p>At the trial in the Superior Court, before Pierce, J., at the close of the plaintiff’s evidence, the judge ruled that the action could not be maintained, and directed a verdict for the defendant. To this ruling and to rulings excluding certain evidence, the plaintiff alleged exceptions. The case is stated in the opinion.</p>