Volume 181 — Massachusetts Reports

Bill fob instructions, filed November 9, 1901, by the executors and trustees under the will of James M. Smith, late of Boston, who died on February 8, 1894. The case came on to be heard before Loring, J., who reserved it upon the amended bill and answers for the consideration of the full court. The only question was whether the residuary clause provided for a time of distribution that might occur beyond the limit allowed by the rule against perpetuities.

<p>Negligence, On railroad. Evidence, Prima facie case.</p> <p>Assuming that in an action for negligence by a passenger against a railroad company, if the plaintiff shows that the car in which he was being carried was derailed, he may rest as having made out a prima facie case, yet if he goes on and shows by his witnesses the exact cause of the accident and discloses no negligence on the part of the defendant, he is not entitled to go to the jury.</p> <p>A carrier of passengers is not responsible for hidden defects in a switching apparatus which could not be discovered by the most careful inspection.</p> <p>A railroad company is not liable for an injury to a passenger from the derailment of a car caused by the breaking of a pin within a pipe of a switch holding a rod which moved a pair of frogs connected with the track, if the appliance was one in universal use and of the best kind and the switch had been carefully inspected at proper intervals.</p>

<p>Assessments, For benefits. Statute. ,Municipal Corporations.</p> <p>Where a statute authorizing^ the extension and construction of a city street provides, that when about to do any work or make any purchase the estimated cost of which amounts to or exceeds $2,000, the superintendent of streets “shall, unless the mayor give a written authority to do otherwise, invite proposals therefor by advertisements ” published in a certain way, an indorsement of approval by the mayor on the contract after it is made and a similar indorsement at that time on the request for permission to dispense with advertising for bids, are not a sufficient compliance with the statute.</p> <p>If an assessment for betterments from the widening and extension of a city street is invalid, because a large part of the expense was incurred in violation of the provisions of the act authorizing it, it is immaterial whether or not the cost was greater than it would have been if the act had been complied with, and it also is immaterial that a sum considerably in excess of the amount of the betterment assessments was expended legally, as the assessment in such a case is for the benefit from the whole widening and extension and is not confined to the benefit from the money expended legally.</p>

<p>Bill fob instbuctions, filed December 3 and amended December 10, 1900, by the trustees under the will of Joseph Ballister.</p> <p>The case came on to be heard before Lathrop, J., who, at the request of the parties, reserved it for the consideration of the full court upon the bill and amendment thereof and the answers of the several defendants; such decree to be entered as law and justice might require.</p>

<p>Petition, filed June 28, 1901, for a writ of mandamus to order the judge and clerk of the Municipal Court of the City of Boston to allow and enter the appeal of the defendant in a criminal case.</p> <p>The case was heard by Hammond, J. It appeared, that the petitioner on June 27, 1901, was tried in the Municipal Court of the City of Boston on a charge of non-support of his wife and minor children, that he was found guilty and sentenced to serve a term of two months at the house of correction at Deer Island, that a mittimus warrant was issued directed to the jailer at that house of correction; and that between 12 M. and 2 P. M. on the same day and before the adjournment of the court, .the defendant’s counsel claimed an appeal, which was refused by the judge of the court because the mittimus warrant had been issued and the prisoner was on his way to serve his sentence. The justice denied the petition; and the defendant appealed.</p> <p>On November 20, 1901, the counsel for the respondents, before the full court, moved that the petition be dismissed on the ground that the petitioner had served his sentence and there was no occasion for the order. On November 21, 1901, the motion was denied.</p>

<p>Will, Undue influence. Evidence, Burden of proof.</p> <p>Where a will is contested on the grounds of unsoundness of mind and undue influence the burden is on the executor to prove soundness of mind and on the contestant to prove undue influence.</p> <p>Some influence may be exercised upon a testator by a devisee or legatee which is not undue.</p>

<p>Bill in equity, filed February 19, 1901, to restrain the defendant Dunbar from buying milk for use in his business from any person other than the plaintiff.</p> <p>The first paragraph of the bill was as follows: “1. On or about the first day of January, A. D. 1901, the plaintiff was possessed of a certain valuable interest and right of property, viz.: the exclusive right, by virtue of a contract between himself and the defendant Dunbar, to sell the said Dunbar milk that the said Dunbar should use or require in his business.”</p> <p>The eleventh paragraph was as follows: “ 11. The plaintiff, as consideration for the exclusive right to supply the defendant Dunbar with milk, as set out in paragraph one, paid said Dunbar the sura of one hundred dollars ($100).” There was no further statement of the contract.</p> <p>The defendants demurred, and as causes of demurrer among others alleged: 1. While the plaintiff bases his right to equitable relief upon a contract referred to in paragraph one of the bill, there is no allegation therein of the duration of the contract or statement that the contract migh not be and was not properly and legally terminated by the defendants. 2. While the bill alleges in substance that the plaintiff was possessed of an exclusive right to supply the defendant Dunbar with milk that he should require in his business, there is no allegation that the defendant Dunbar requires any milk in his business in any way whatsoever, and therefore his neglect and refusal to receive any milk is not in contravention of the terms of any contract which is set forth.</p> <p>The Superior Court sustained the demurrer and dismissed the bill; and the plaintiff appealed.</p>

<p>Equity Pleading and Practice, Refusal to frame issues. Discretion of Court.</p> <p>A party to a suit in equity asking this court to revise the discretion of a judge of the Superior Court in refusing to frame issues for a jury in order to prevail must show that the issues of fact could be more satisfactorily tried by a jury than by the judge and that the judge in refusing to frame issues did not exercise . his discretion rightly.</p> <p>In a suit in equity the answers were filed June 12. Two days later the judge ordered the pleadings completed forthwith and the cause set down for hearing on the merits for the week beginning June 18. The plaintiff filed replications on July 5, and on August 8 filed a motion for the framing of issues for a jury. The motion was denied. Held, that the delay in making the motion alone was enough to justify the denial.</p>

<p>Contract, Implied, Performance.</p> <p>The plaintiff conveyed certain land to the defendant under an oral agreement, by which the defendant agreed to pay off a certain mortgage thereon, and, on the plaintiff paying him the amount paid on the mortgage and $150, to reconvey the land to the plaintiff. An agreement to reconvey was drawn up and the defendant said he was satisfied with it, but, after he had obtained the deed from the plaintiff, he refused to sign the agreement and did not offer to sign any paper, and sold and conveyed the land to the mortgagee. Held, that these facts would warrant a jury in finding, that the defendant deliberately broke his promise to sign the agreement on the ground that it was not enforceable, and, if so, a right of action at once accrued to the plaintiff to recover the value of the property he had parted with. If the right of action did not accrue until the defendant sold the land, it would be a question for the jury whether the plaintiff had failed in the performance of any conditions precedent before that time. After the sale, the plaintiff was not obliged to do anything.</p>

<p>Petition, filed August 13, 1901, for a writ of mandamus to be issued to the selectmen of Petersham commanding them to receive the petitioner as one of their board and commanding Edwin 0. Dexter to refrain from acting as a member of that board.</p> <p>The case was heard by Barker, J., who ruled that the informalities in the nomination papers of Edwin C. Dexter would not invalidate his election, and that the petitioner, by making no protest after his signing the certificate on the nomination papers on May 7,1901, and by participation in the meeting at which Dexter was elected, and by acquiescence in its results, was precluded from maintaining his present petition.</p> <p>The justice ordered the petition dismissed; and the petitioner alleged exceptions.</p>

<p>Tide water, Compensation for displacement. Statute, Construction.</p> <p>Semble, that the provisions of Pub. Sts. c. 19, § 14, requiring compensation for tide water displaced by structures or filling below high water mark, apply only to structures voluntarily erected under some authority or license, but, however that may be, those provisions are not applicable to the displacement of tide water by the Old Colony Railroad Company in performing its part of the requirements of St. 1897, c. 519, providing for the abolition of the grade crossing of Dorchester Avenue in Boston and the railroad of that company.</p>

<p>Witness, Impeachment. Evidence, Communications between attorney and client.</p> <p>Where an attempt is made in cross-examining a plaintiff to impeach her credibility by showing that she is a spiritualist, and she says in answer, that she is not a spiritualist, it does not matter whether this was admissible or not, as the attempt failed and did the plaintiff no harm.</p> <p>The counsel for a plaintiff was allowed to testify to conversations between the plaintiff, himself and the defendant, when they were all together, with a stenographer, in his office. He was acting at the time for the defendant as well as for the plaintiff. Held., that the conversations were not privileged.</p>

The case was heard by Hammond, J. The respondents asked for a ruling, that on the whole evidence the petitioner was not entitled to an allowance. The justice refused so to rule and affirmed the decree of the Probate Court, with costs to neither party; and the respondents alleged exceptions.

<p>Devise and Legacy, Construction.</p> <p>A single woman, having no kin nearer than cousins, by her will left $100 to the trustees of the Lowell cemetery, the income to be used in keeping the cemetery lot in proper condition, and all the rest and residue of her property “ to be converted into money as soon after my decease as may be deemed expedient and advisable by my executor, and to be expended in fitting up the burial lot owned by me in the Lowell Cemetery, and in erecting a suitable and proper monument thereon.” The residue of the property amounted to $8,000. The will was dated twelve years before the death of the testatrix. Held, that the express requirement that all the residue be expended upon the lot and monument was not limited by the description of the monument as “ suitable and proper.” Moreover, if the testatrix, being a single woman otherwise undistinguished, wished to prolong the remembrance of the family name by a beautiful monument over her grave, the court could not say as matter of law that it was not suitable and proper.</p>

<p>Equity Jurisdiction, To compel new execution of mutilated instrument. Contract, Construction.</p> <p>In a suit in equity to compel the defendant to execute anew an assignment to the plaintiff which the defendant wrongfully had mutilated, it appeared, that by an agreement in writing the defendant gave the plaintiff an equal interest in a certain patent and in return the plaintiff agreed to furnish capital as needed. It was agreed, that the patent should be assigned to the plaintiff to be held by him in trust and assigned by him “ to a corporation now organized or to be organized whenever the parties may deem it advisable for the purpose of carrying on the business,” and that the capital stock of the corporation to which the patent should be assigned should be divided in equal shares between the plaintiff and the defendant, but that the amount to be contributed by each to be sold for working capital should be fixed by the plaintiff. No other details were agreed upon by the parties. It further appeared, that in accordance with the agreement the defendant executed and delivered to the plaintiff an assignment of the patent, and thereafter wrongfully obtained possession of it and mutilated it by tearing off the signature and seal, thereby preventing the plaintiff from having the assignment recorded at the patent office, and thereafter refused to recognize his agreement as binding. Held, that the plaintiff was entitled to relief; that the provision that the plaintiff should assign the patent to a corporation “ whenever the parties may deem it advisable for the purpose of carrying on the business ” did not give the defendant the right to terminate the whole arrangement at any time he saw fit; that, when the defendant had transferred the patent to the plaintiff, the plaintiff was under an obligation to furnish within a reasonable time the capital needed and the defendant under a corresponding obligation to give him a reasonable time to do so; that the defendant, wrongfully having mutilated the assignment, should execute it anew, and, upon his doing so, the plaintiff either must assign the patent to an existing corporation reasonably fitted for the purpose, or must organize such a corporation as was reasonably proper and furnish such capital as was reasonably necessary, the plaintiff and defendant having equal shares in the capital stock of the corporation whether existing or to be formed.</p> <p>Since St. 1877, c. 178, this court has had full equity jurisdiction.</p>

<p>Bill in equity, filed June 9, 1899, to redeem from two mortgages, the first for $5,000 covering three parcels of land, and the second for $1,700 covering the same parcels and three others adjacent thereto, all on the shores of Chebacco Lake in Hamilton in the county of Essex and the first three parcels having thereon a hotel known as the Winnepoyken House.</p> <p>At the trial in the Superior Court, before Pierce, J., without a jury, the plaintiff asked the judge to make the following rulings:</p> <p>1. That upon all the evidence the plaintiff is entitled to redeem. 2. That the plaintiff, as of right, is entitled to redeem by having brought his bill and offering therein to pay what is due, previous to the conveyance of the property to the purchaser. 3. That the evidence discloses that the defendant, Wentworth, the mortgagee, in view of the location and character of the property, failed to exercise proper diligence and fairness in the sale thereof. 4. That the attempted sale of the six lots included in the second mortgage after an attempted sale of the first three therein embraced under the power of sale in the first mortgage, is an invalid execution of the power of sale, and rendered the sales void. 5. That when the defendant Wentworth advertised to foreclose under both mortgages simultaneously, he was confined to a sale under the second mortgage. 6. That a sale of the three lots under the power in the first mortgage rendered void the sale of the same premises under the second mortgage. 7. That the conduct of the purchaser at the sale in inducing an intended purchaser to refrain from bidding, rendered the sale invalid.</p> <p>The judge refused to make any of these rulings, and made the following findings of fact: 1. That Wentworth exercised all proper and reasonable diligence in the matter of the publication of the notice of the foreclosure, and acted in entire good faith and with a reasonable regard to the rights of the mortgagor. 2. That the property was fairly and properly sold and brought a fair price. 3. That Oliver F. Kilham did not intend to become a bona fide purchaser of the property sold under the second mortgage, but did intend to intimidate would-be purchasers by threatening to run up the property and to extort a money payment as a condition of his refraining from bidding thereon and that the payment to him by Allen, one of the purchasers at the sale, was made under such pressure and was not intended by Allen to interfere or deter Kilham from making any honest bid. 4. That the sum bid upon the second sale was a fair price for the lots not included in the sale under the first mortgage.</p> <p>The judge ordered the bill dismissed without costs, and the plaintiff appealed. At the request of the plaintiff, the judge reported the case for the consideration of this court. If the decree entered was right, it was to be affirmed; otherwise, such decree was to be entered as law and justice might require.</p> <p>In regard to the publication of the Wenham-Hamilton Times, in which the sale was advertised, one Vittum, a witness for the plaintiff, testified as follows:</p> <p>“I live in Beverly and publish the Wenham-Hamilton Times, and also publish the Beverly Evening Times, the Essex County Mercury and the Beverly Weekly Times; all weeklies except the Beverly Evening Times; in May and June, 1899, there were twenty-four subscribers to the Wenham-Hamilton Times in the town of Hamilton; I could n’t say how many in the town of Wenham; one hundred and twenty-five copies of the paper were printed; it goes to Wenham and outside subscribers, but mostly to Hamilton and Wenham; all these papers were printed in the same place in Beverly, Mass.; in May and June of 1899, there were four hundred copies of the Essex County Mercury printed; this is a home paper and sent through the county to the different homes; I have no office in either Hamilton or Wenham; ... I received directions to insert advertisement in reference to foreclosure of mortgages on Winnepoyken property from Pettingell’s Advertising Agency in Boston; order was to print it in the Wenham-Hamilton Times; the advertisement appeared in the Mercury and the Beverly Weekly Times, because they are practically the same paper, the only changes being made are the headings, the place of publication and those advertisements which are ordered changed, and they are all printed and published in the office in Beverly.”</p> <p>On cross-examination, the witness testified: “I should say that Hamilton has not more than one thousand inhabitants and Wenham about the same ; there is no paper published in either of these towns at all; Beverly papers are the nearest to this land of any that are published, and the notice was published in the three weeklies referred to.”</p>

Mandell, deceased, and William W. Crapo, as trustees under the will of , Sylvia Ann Howland, William W. Crapo also being the executor under the will of Edward D. Mandell. The case was heard by Hammond, J., who made a decree allowing the accounts except as to certain objections which were sustained by consent. From this decree an appeal was taken by the life tenant under the will and by her son, one of the present trustees. Later a bill of exceptions was allowed.

<p> Negligence. Railroad. </p> <p>It is not negligence for an engineer to sound the whistle of a locomotive engine as he is passing under a bridge which is part of a highway, unless something more is shown.</p> <p>It is not negligence for a railroad company to build and maintain an open bridge with a plank floor carrying a highway over its tracks with slight cracks between the planks, so that steam comes up through the cracks when an engine is passing beneath, if the bridge is built in accordance with orders of the county commissioners.</p> <p>If a railroad company when building an open bridge to carry a highway over its tracks, is required by an order of the county commissioners to put in certain timbers to protect the edges of the planking from any injury from wheels, a failure to do this does not make the railroad company liable for an accident caused by a horse taking fright from steam coming up through cracks between the planks of the bridge, which could not in any way have been prevented by having the required timbers.</p>

<p>Bills and Notes, Reasonable time for demand. Negotiable Instruments Act. Evidence, Burden of proof.</p> <p>In the absence of any evidence of usage of trade or facts of the particular case to bring it within St. 1898, c. 533, § 193, a demand on a promissory note payable on demand must be made within sixty days of the date in order to hold an indorser. Semble, that, if there is any such usage or any fact or circumstance to excuse a delay in making the demand, the burden is on the holder to show it.</p>

<p>Mortgage, Of Chattels, Priority. Assignment, Equitable.</p> <p>As between two mortgages of tlie same personal property executed on the same day, without delivery of the property, under St. 1883, c. 73, the one first recorded has priority, irrespective of the order of execution.</p> <p>One who takes a mortgage of personal property without delivery of the property, in consideration of his lending the money to pay off a previous mortgage on the same property for the same amount, and receives a discharge of the previous mortgage just before his own mortgage is delivered to him, does not become thereby an equitable assignee of the previous mortgage, and his lien as against third persons begins when his own mortgage is recorded.</p>

Petition, filed December 21,1899, and amended January 17, 1901, to the Superior Court under St. 1896, c. 516, § 23, for damages to property of the petitioner by the respondent’s changing the grade of Buckingham Street in Boston in connection with its construction of the Back Bay station in that city. The original petition alleged a filing on March 17, 1898, by the respondent of a location of its taking under the act.

<p>Evidence, Relevancy and materiality, to show fraud. Bankruptcy. Practice, Civil, Verdict.</p> <p>In an action by an attorney at law on an account annexed for a balance alleged to be due him upon a bill for professional services, the defendant filed a declaration in set-off. To this the plaintiff pleaded in bar a discharge in bankruptcy. The defendant filed an answer to the plea in bar, alleging, that the discharge of the plaintiff was not a bar to the defendant’s claim as the plaintiff’s indebtedness to the defendant was created by the plaintiff’s fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity. It appeared, that the plaintiff had been one of two trustees for the benefit of the defendant’s creditors. The defendant offered to show that the trustees received about $12,000 from assets assigned to them, that they paid creditors only about $2,400 and that the plaintiff's co-trustee charged $8,000 for his services, the charge being known to the plaintiff. The evidence was excluded. Held, that the exclusion was right, as the evidence had no tendency to prove the allegations of the answer to the plea of discharge. Also, the defendant offered in evidence the record in the case of Cooke v. Barrett reported in 155 Mass. 413, a suit in equity in which the plaintiff failed by reason of loches. The evidence was excluded. Held, that the exclusion was right, as the plaintiff’s failure in that suit had no tendency to show that his indebtedness to the defendant was created by fraud in the manner alleged. Held, also, that evidence of an overcharge and of a sum of money received and not accounted for, neither of which were alleged in the declaration in set-off, rightly was excluded. Held, also, that evidence, tending to show the plaintiff’s connection with the adoption by the defendant of a person as his child in order to obtain a bequest, and of a will of the defendant made in favor of the plaintiff, was immaterial to the issue and excluded rightly. Also, it appeared, that at one time the plaintiff attempted to discontinue this action and brought another action against the defendant on a promissory note for $1,500 which he alleged had been given by the defendant in settlement of this action. The jury found in that case that the note was not given in settlement of this action and the defendant had judgment. Held, that the record of the other action was immaterial and properly was excluded.</p> <p>Where a discharge in bankruptcy is pleaded in bar to a claim made up of many items, and an answer to the plea alleges that the discharge is not a bar to the claim because the indebtedness was created by fraud of the bankrupt while acting in a fiduciary capacity, and it appears, that some of the items in the account were created by such fraud and some were not, and a jury gives a general verdict for a part of the claim only, there being nothing to show what items were included in the verdict, a judgment on the verdict is barred by the discharge.</p>

<p>Tort by a brakeman for injuries received in the defendant’s freight yard at Worcester by a freight train starting while the plaintiff by order of the conductor of the train was between two of the cars putting in order a coupling on one of them. Writ dated June 30, 1900.</p> <p>The first count of the declaration alleged, that the plaintiff was injured “ by reason of the negligence of some person in the service of the defendant, who had charge or control of a train upon the railroad of the defendant.” The second count alleged, that he was injured “ by reason of the negligence of some person in the service of the defendant, who had charge or control of a locomotive engine upon the railroad of the defendant.”</p> <p>At the trial in the Superior Court before Fox, J., at the close of the evidence, the plaintiff elected to go to the jury on the first count. The plaintiff’s counsel argued to the jury, that the plaintiff was entitled to a verdict.if the engineer was negligent, on the ground that the engineer was the person in charge or control of the train.</p> <p>The defendant asked the judge to give the following instructions: 1, there was no sufficient evidence to warrant a verdict for the plaintiff on the pleadings and evidence in this case; 2, that there was no evidence of any negligence of the conductor causing the accident; 3, that there was no evidence of any negligence of the engineer causing the accident; 4, that the only person whose negligence was material upon the count elected by the plaintiff, and upon the evidence in the case, was the conductor.</p> <p>The judge refused to give these rulings, but upon the matters involved in the fourth request, ruled as follows: “The plaintiff has elected to go to the jui’y upon the first count, which, in substance, charges the neglect of the person in charge of the train. You, therefore, will bring in a verdict for the defendant on the second count, which charges neglect upon the engineer, in substance, in any event. If you find for the plaintiff, you will find for the plaintiff only on the first count.”</p> <p>The jury returned a verdict for the plaintiff on the first count in the sum of $2,500; and the defendant alleged exceptions.</p>

<p>Issues framed by a justice of this court in a probate appeal and sent to the Superior Court to be tried by a jury.</p> <p>The issues framed for the jury were as follows:</p> <p>“ First issue. Was the instrument propounded as the last will and testament of Chester A. Dresser, duly executed in accordance with law?</p> <p>“ Second issue. Is the said instrument the will of said Chester A. Dresser, and did he, at the time of its execution, understand its contents ?</p> <p>“Third issue. Was the said Chester A. Dresser induced to execute the said instrument through [duress, or] undue influence exercised upon him by Hannah M. Dresser, or any other person ? ”</p> <p>At the trial of the issues in the Superior Court before Bell, J., by order of the judge and with the agreement of the contestants, the first two issues were answered in the affirmative, and the third issue was tried, the words “ duress or ” being stricken from it.</p> <p>At the close of the evidence, the executors, among other requests, asked the judge to rule that there was no evidence to warrant a verdict for the contestants on the third issue. The judge refused so to rule. On that issue the contestants presented their case to the jury on the question, whether the instrument was procured by the undue influence of Hannah M. Dresser. They did not contend that it was procured by the undue influence of any other person.</p> <p>The jury answered the third issue in the affirmative; and the executors alleged exceptions, only one of which was argued.</p>

<p>Will, Sanity, Undue influence. Practice, Cioil, Rulings and Instructions.</p> <p>In the absence of evidence to the contrary there is a presumption of the sanity of a testator. If evidence is introduced to rebut this presumption the burden of proof is on the executor to prove sanity on all the evidence including the presumption.</p> <p>The fact that a certain person was at the same time the friend, housekeeper and nurse of a testator does not as matter of law create a suspicion of undue influence.</p> <p>When a request for a ruling is so drawn that to give it as written might be taken by the jury to convey some intimation from the judge in favor of the party requesting it, the judge for this reason alone may decline to give the ruling in the form requested.</p>

<p>Contract on a fire insurance policy in the Massachusetts standard form on property destroyed by fire on October 7, 1898. Amended from a bill in equity which was filed April 15, 1899.</p> <p>At the trial in the Superior Court before Richardson, J., the jury returned a verdict for the plaintiff in the sum of $1,852.13; and the defendant alleged exceptions.</p>

<p>Appeal to the Superior Court from a decision of commissioners appointed by the Probate Court of the County of Norfolk, to receive and examine claims against the estate of the late Edward Avery.</p> <p>At the trial in the Superior Court, before Hardy, J., it appeared that the creditor’s claim disallowed by the commissioners was on a note for $155 and a draft for $185. The note was as follows:</p> <p>16 $155. Boston, May 6th, 1895. Four months after date I promise to pay to the order of Edward Avery One Hundred and Fifty-five dollars. Payable at any Bank in Boston. Value received. James T. Moore.”</p> <p>The note was indorsed as follows :</p> <p>“ Pay to the order of William B. Avery. Edw. Avery.</p> <p>“ Pay to the order of Miss Ida Avery. Wm. B. Avery.</p> <p>46 Pay to the order of Mr. E. J. Nelier. Ida Avery.</p> <p>44 For deposit in the National Bank of the State of Florida, Jacksonville, Fla., to credit of E. J. Neher.</p> <p>44 For collection account National Bank, State of Florida, Jacksonville, Fla. Thos. P. Denham, Cashier.”</p> <p>The draft was as follows :</p> <p>“ $185.00. Keuka, Fla., April 7th, 1894. At (10) ten days sight pay to the order of E. J. Neher $185. One Hundred and Eighty-five Dollars. Value received and charge the same to account of Wm. B. Avery. To Hon. Edward Avery, Exchange Building, State St., Boston.” Across the face was written: “Accepted. Edw. Avery.”</p> <p>The draft was indorsed as follows :</p> <p>“ E. J. Neher.</p> <p>“ For deposit in National Bank of the State of Florida, Jacksonville, Fla., to credit of E. J. Neher.</p> <p>■ “ Pay American Exchange Nat’l Bank, New York, or order for credit acct. Nat’l Bank of the State of Fla., Jacksonville, Fla. Thos. P. Denham, Cashier.</p> <p>“ For collection account Amer. Exch’ge National B’k, New York. Edward Burns, Cashier. Apr. 12, 1894.”</p> <p>It seemed to have been admitted or assumed that Elmer E. Haskell, the alleged creditor, was the lawful holder of the note and draft.</p> <p>The judge affirmed the finding' of the commissioners and disallowed the claim ; and the appellant alleged exceptions.</p>

<p>Petition, filed May 28, 1901, to the Probate Court for the County of Suffolk by one of the executors under the will of Albert Pitts, late of Boston, for the allowance of a personal claim against the estate upon a promissory note signed by the testator, for $11,500, and $2,873.40 interest thereon.</p> <p>In the Probate Court the case was heard by McKim, J., upon agreed facts. It appeared, that Albert Pitts died on December 19, 1898, that his will was proved on January 12, 1899, and that Alice S. Pitts and Allen A. Brown, the petitioner, were appointed executors, gave bonds and gave notice of their appointment, and that on February 10, 1899, affidavit of notice of appointment was filed. On February 28, 1901, the estate was represented insolvent and there was a decree of insolvency and a warrant issued to commissioners. On May 28, 1901, this petition was filed. The judge made a decree dismissing the petition; and the petitioner appealed.</p> <p>The case came on to be heard before BarTcer, J., who reserved it, upon the agreed facts, the record, and the requests for rulings of the petitioner and the respondent, for determination by the full court.</p>

<p>Fraternal Benefit Association. Contract, Construction.</p> <p>A certificate of membership in a fraternal benefit association contained a promise to pay $5,000 to the wife of the member on proof of the death of the member in good standing, and the promise was declared to be made “ in consideration of the full compliance with all the by-laws . . . now existing or hereafter adopted.” The certificate contained conditions, that all assessments should be paid and that all advances for sick or disability benefits should be deducted. After the issuing of the certificate and before the death of the member, the association changed its by-laws, cutting down the highest amount to be paid upon any benefit certificate to $2,000, and also providing that five per cent should be deducted from the face value of certificates for an emergency fund. In an action on the certificate, all its conditions having been performed, it was held, that the express promise to pay $5,000 could not be changed by the association; that the words “ full compliance with all the by-laws,” if they meant more than compliance with the conditions in regard to payment of assessments and deduction for advances, meant doing what the by-laws required the member to do, and did not mean that the sum promised in return for the consideration could be diminished.</p>

<p>Equity Pleading and Practice, Final decree.</p> <p>On June 1,1900, the Superior Court made an order, that a certain bill in equity be dismissed for want of prosecution unless the master’s report should be filed on or before January 1,1901. On February 28,1901, a motion was made to extend the time for filing the master’s report. This was denied, and the plaintiff appealed. He also filed a motion or petition asking that the order of June 1 be vacated or modified. This was denied “ without prejudice,” and the plaintiff appealed. The Superior Court was asked to report the facts, but did not do so, apparently assuming that the bill..was dismissed. On an application, treated as a petition for leave to file a bill of review, it was held, that there was no final judgment in the Superior Court, and consequently that a writ of review would not lie, and also that the appeals on the interlocutory orders, if before this court, must be dismissed as prematurely entered. Semble, that, so far as appeared, the case ought to be on the docket of the Superior Court.</p>

<p>Equity Pleading and Practice. Discretion of Court. Practice, Civil, Double costs.</p> <p>The refusal of leave to file an amendment to an answer in a suit in equity is within the discretion of the court.</p> <p>Where it appears on the record of a case reported from the Superior Court that a final decree was entered for the plaintiff from which the defendant did not appeal, the decree of the Superior Court must stand.</p> <p>R. L. c. 156, § 13, providing for double costs on frivolous appeal or exceptions, probably does not apply to a case coming up on report.</p>

<p>Contract, Implied. 'Frauds, Statute of.</p> <p>In an action on a note for $500 payable in two years from date, the defendant declared in set-off for $381 had and received as “ discount on milk at four cents per can,” and offered to show an oral agreement made at the time the note was given whereby the defendant was to buy milk of the plaintiff paying twenty-eight cents a can and the plaintiff was to allow the defendant a discount of four cents a can when the note was paid. The evidence was excluded. Held, that the exclusion was right. The four cents a can rebate stipulated for by the oral agreement could not be recovered in any event, since such recovery would involve the enforcement of a contract within the statute of frauds where the statute had not been complied with; and the only ground on which anything could be recovered under the declaration in set-off would be, that the oral contract was repudiated by the plaintiff because incapable of proof by reason of the statute of frauds, and that the defendant under it had paid the plaintiff more than the market value of the milk, the excess being paid for something which the defendant had not received. There having been no offer to show that twenty-eight cents was more than the market value of a can of milk, there was no ground for admitting the evidence offered.</p>

CONTRACT on a promissory note for $100 dated March 28, 1899, and payable six months from date. Writ in the First District Court of Salem, dated March 29, 1900. On appeal to the Superior Court the case was tried before Bell, J., who refused the defendant’s requests for rulings and gave the instructions stated by the court. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

<p> Schools and School Committee. Damages. </p> <p>In an action against a city for the alleged unlawful exclusion of the plaintiff from its public schools, a record of the school committee was put in evidence which stated that the plaintiff had had an opportunity to be heard on the charges against him. Oral evidence was introduced as to the proceedings at the hearing. In holding that the finding of the school committee made in good faith after a hearing could not be revised, the court assumed that the plaintiff was not precluded by the record from showing the proceedings at the hearing so far as they were pertinent.</p> <p>In an action against a city under Pub. Sts. c. 47, § 12, St. 1898, c. 496, § 9, for the alleged unlawful exclusion of the plaintiff from its public schools, it appeared, that there was a hearing, at which the school committee refused to permit pupils of a school to be called as witnesses to testify in regard to a question between the principal of the school and one of the pupils, although the principal had read a statement in which he referred to these same pupils as the source of part of his information. The chairman then said, that if any boy wished to volunteer a statement or to contradict anything said of him by the principal, he might do so. No boy volunteered. It was admitted that the school committee acted in good faith. Held, that it was error to leave the question to the jury whether the school committee gave the plaintiff a fair, reasonable opportunity to present his case before them, and that a verdict should have been ordered for the defendant. Latiikop, J, dissenting.</p> <p>In an action against a city for the unlawful exclusion of the plaintiff from its public schools, the plaintiff cannot recover for expenses of tuition elsewhere unless paid out offhis own property or funds, but may recover for suffering from the disgrace of his exclusion from school.</p>

<p>Contract for alleged breach of a contract in writing by which the defendants agreed to ship to the plaintiff about forty thousand sides of leather, the entire product of the defendants’ tannery, in weekly shipments for ten successive weeks, at certain prices named for the different kinds, the quantity of each kind being stated, and the writing being signed by the defendants. Writ dated January 23, 1895.</p> <p>At the trial in the Superior Court before Lawton, J., without a jury, the judge found for the plaintiff in the sum of $5,000; and the defendants alleged exceptions.</p>

<p>Evidence, Opinion, Materiality. Negligence.</p> <p>On the issue of due care of the plaintiff in an action for injuries caused by a collision of a street car with the plaintiff's wagon, the plaintiff cannot be asked, what his judgment was as to whether there was a chance for him to cross the track, he having already testified that he had formed such a judgment. His judgment is immaterial on the question whether he was negligent.*</p>

Contract on a policy of insurance for the loss of a barn and its contents, destroyed by fire on April 19, 1897, brought by the plaintiff for his own benefit and also for the benefit of Kate W. Rice, as administratrix of the estate of Richard Wood, deceased, the mortgagee named in the policy and to whom it was made payable in case of loss as his interest might appear. Writ in the District Court of Southern Berkshire dated September 17, 1897.

<p>Petition, filed February 19, 1898, under St. 1889, c. 442, to determine and define the nature and extent of the respondents’ easements in a passageway five feet wide and sixty-two feet long, running easterly from Carver Street in Boston at the rear of buildings fronting on Boylston Street belonging to the petitioners and the respondents.</p> <p>The case was heard by Hammond, J., who reported it for determination by the full court. The facts reported are stated by the court. A reduced copy of a sketch used as a chalk at the argument is printed on the opposite page.</p> <p>The respondents offered to prove by witnesses, that in 1840 a passageway in the rear of a row of houses parallel to the street in front of them was and long had been a common form of rear entrance in Boston, that there existed a uniform public usage and custom to leave such rear passageways open to the sky, whatever their width and length, and that such passageways are now common and they still are usually open to the sky; that</p> <p> </p> <p>it was in 1840 a common thing in schemes for laying out land to establish such a rear passageway parallel to the street on which the lots fronted ; that by uniform public usage such passageways so laid out were open to the sky, and that the scheme shown by the plan made by Alexander Wadsworth, according to which the conveyances were made, was one of this character.</p> <p>The justice excluded the evidence offered, under the objection and exception of the respondents.</p> <p>The questions involved in the case and reserved for the full court were:</p> <p>1. Whether the passageway might be built over by the owner of the fee thereof, the stipulation of the parties on file governing the height at which the same might be covered, if at all.</p> <p>2. Whether the petitioner was entitled to have the questions raised by the amendment to the petition, as to the right of the defendants Getting and Welch to use the passageway in connection with their rear lot, determined in this proceeding. If the court was of opinion that those questions must be determined, then,—</p> <p>3. Whether the deed of the Townsend heirs to Williams, the predecessor in title of Cotting and Welch, conveyed rights in the passageway appurtenant to the rear lot.</p> <p>4. Whether the owners of the rear lot acquired a prescriptive right in the passageway, and whether such prescriptive right could be availed of in this proceeding.</p> <p>In case the court was of the opinion that the evidence excluded should have been admitted, the case was to stand for further hearing; otherwise, such decree was to be entered as justice and equity required.</p>

<p>Agency. Master and Servant. Negligence, Contributory.</p> <p>The plaintiff’s shop was in a building separated by a passageway six feet wide from the defendant’s bank building, the boundary line running through the centre of the passageway. The cashier of the defendant employed one S. to repair the cellar wall of the bank on the side next the passageway in order to stop water from flowing into the cellar. Workmen employed and paid by S. negligently left extending across the passageway a pile of earth from the excavation made in repairing the wall. After the pile of earth had remained there for a week, a snow storm followed by rain occurred, and the pile of earth dammed the water in the passageway and caused it to flow in at the plaintiff’s window and injure his goods. Held, that there was no evidence that the workmen of S. whose negligence caused the injury were the servants of the defendant. Knowlton, J. dissenting. Held, also, that the plaintiff was not as matter of law negligent in allowing the pile of earth to remain for a week where it was, one half of it on his own land.</p>

<p>Appeal, filed May 7, 1900, to the Superior Court, under St. 1890, c. 127, from a refusal of the assessors of the town of Brookline to abate a tax assessed upon the petitioner on May 1, 1899.</p> <p>At the hearing before Stevens, J., it was admitted that the petitioner was liable to taxation on his real estate in Brookline, and on some cows kept there. The taxes sought to be abated were a poll tax and a tax on his personal property, the petitioner claiming a domicil at Newcastle in the State of Maine. The judge found in favor of the petitioner; and the respondent alleged exceptions.</p>

<p>Bill in equity, filed January 19, 1901, to restrain the obstruction of an alleged right of way by prescription from a gate in the plaintiff’s back fence along a path over the defendant’s land to a railroad station of the defendant in Somerville.</p> <p>In the Superior Court the case was heard by Braley, J., without a jury. He found that the plaintiff was entitled to a foot-way or path from her land along the location of the defendant of at least two feet and six inches in width with a gutter upon the side next to her land, and a railing on the side next to the railroad track at least forty-six inches high as theretofore constructed, and to enter upon the path by a gate, the path or foot-way running between the gate in the fence on the rear line of the plaintiff’s land next to the railroad location and' thence along the location to the edge of the concrete next the defendant’s station.</p> <p>The defendant asked the judge to find and rule, that the tenants of the plaintiff occupying the apartment houses constructed by the plaintiff on her land were not entitled to the use of the way, and that the use of the way was confined to the plaintiff and those succeeding to her rights in the estate as it existed in 1869 at the time when the dwelling house was built and occupied by herself and husband and those who might live with them in the dwelling house. The judge declined so to find and rule, and held that the way was appurtenant to the estate of the plaintiff and to each and every part of it, and that there had been no change in the character of the use of it, and that no greater burden had been imposed on the servient estate, and entered a decree accordingly. The defendant appealed.</p>

<p>Writ of entry, dated July 20,1899, by Frank S. Ham, son and heir at law of Foster Ham, and writ of dower of the same date by Mary Jane Ham, widow of Foster, against Jennie S. Twombly, devisee under the will of Cyrus Ham, father of Foster.</p> <p>In the Superior Court Lawton, J. ordered a verdict for the tenant; and the demandants alleged exceptions. The sixth clause of the will of Cyrus Ham, under which the tenant claimed, is printed in Cowley v. Twombly, 173 Mass. 393.</p>

Tort for injuries from an accident caused by an alleged defect in Salem Street in the town of Revere, consisting of the absence of a sufficient barrier. Writ dated June 29, 1898.

' Four actions of TORT, by three members of the same family and the administrator of another, deceased, for alleged false representations made by one Hancock, agent of the defendant, that a certain tenement at 22 Austin Street in Cambridge was in good condition as to drainage and plumbing, thereby inducing the plaintiffs to occupy it, in consequence of which three of the plaintiffs were alleged to have suffered from illness and the intestate of the other to have died, with a…

<p>Mechanic’s Lien, Enforcement of bond to dissolve lien, parties. Practice, Civil, Parties.</p> <p>The respondent to a petition to enforce a mechanic’s lien filed a bond signed by himself as principal and by three sureties, to dissolve the lien under the provisions of Pub. Sts. c. 191, §§ 42, 43. Later he conveyed away all his interest in the real estate which had been subject to the lien. He then died intestate and the administrator of his estate filed a final account, which was allowed, by which it appeared that there were no assets. Later the administrator died. Nine years after the filing of the original petition, a motion was made that the present owners of the real estate, the sureties on the bond and the heirs at law of the respondent be summoned in to take on themselves the defence of the suit. This motion was allowed only as to the heirs at law, who appeared and answered. The case was reported to this court on the question whether the case was ripe for further proceedings without summoning other parties as respondents. Held, that the proceedings must be stayed until the proper parties had been summoned to appear and defend; that the case should then proceed for the purpose of enforcing the judgment obtained by a suit on the bond, and that the principal and sureties on the bond stood in the place that would have been held by the heirs and assignees of the original respondent if the lien had not been discharged by giving the bond; therefore that the heirs at law and the present owners of the real estate had no interest in the suit, which should be against the administrator of the principal and the sureties on the bond. Whether, the estate of the principal having been without assets and finally settled and the administrator being dead, if an administrator de bonis non could not be appointed, the case might proceed against the sureties alone when made parties, was not before the court and therefore not passed upon.</p>

<p>Constitutional Law, Caucus laws. Elections, Caucus. Conspiracy. Pleading, Criminal, Indictment. Practice, Criminal, Preliminary finding of fact, Exceptions. Evidence, Admissions and Confessions, Testimony of fellow conspirator.</p> <p>Those provisions of the election act, St. 1898, c. 548, which regulate caucuses and voting at them are constitutional.</p> <p>The provision of St. 1898, c. 548, § 91, that no person having voted in the caucus of one political party shall be entitled to vote or take part in the caucus of an- . other political party within the ensuing twelve months, is valid.</p> <p>St. 1898, c. 548, § 92, requiring voting lists to be used as cheek lists in balloting at caucuses, is valid.</p> <p>A count for conspiracy to procure illegal voting and a count for aiding and abetting illegal voting are for offences similar in their nature, mode of trial and punishment and may be joined in one indictment at common law.</p> <p>On an indictment for a conspiracy to procure persons to vote at a caucus who were not entitled to vote there, the conspiracy might be completed before any of the persons to be procured had been agreed upon, and the particular nature of the disqualification is not material to the offence and need not be alleged in the indictment.</p> <p>However it may be as to an indictment for illegal voting, semble, that on an indictment for abetting certain persons not entitled to vote in voting at a caucus, it -is not necessary to allege the particular disqualification, but, if the failure to do so is a defect, it is one of form and can only be taken advantage of by special assignment.</p> <p>An indictment, for conspiring to procure persons to vote at a certain caucus who were not entitled to vote there, is not bad because under its charges the conspiracy might bé to procure votes which were illegal for diSerent reasons under St. 1898, c. 548, §§ 377, 378, and to abet contrary to § 390 of that statute, the offences punished under these sections being different, since the conspiracy alleged is one, and properly might be alleged to intend them all.</p> <p>Under St. 1899, c. 409, § 10, an indictment, for conspiring to procure persons to vote illegally at a certain caucus, need not state the place of the offence.</p> <p>On the trial of an indictment for conspiracy to procure persons to vote illegally at a caucus, there is no variance if it appears that when the conspiracy was formed the conspirators did not know any of the persons named in the indictment as the persons to be procured, and that one of them was not spoken to until twelve o’clock on the day of the caucus when all the plans were complete. In such a</p> <p>, case the fact that the conspiracy is indictable in its initial stages does not prevent its being indicted in the shape which it ultimately assumes.</p> <p>If a caucus is called for a certain hour, and, it being known that the regularly elected warden will be absent, a temporary warden is elected a few minutes before the hour named to fill the vacancy and when the caucus opens and thereafter acts as warden, semble, that the election of the warden is good under St. 1898, c. 648, § 129, giving the power to fill vacancies “ at a caucus.” At any rate, there is a warden de facto, and the votes cast at the caucus will not be affected by the irregularity.</p> <p>An indictment for aiding and abetting illegal voting at a caucus is none the less sustained because it appears that there were informalities at the caucus, if they did not make the vote of the caucus void.</p> <p>At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, an exception was taken to a refusal to rule, that no unfavorable inference should be drawn against one of the defendants, who acted as de facto warden at the caucus, because he delayed for half an hour in opening the caucus, if that delay was on account of the enclosures or pens outside the guard rail. There was independent evidence, that the delay was for the purpose of facilitating the carrying off of certain ballots and giving time to take them to the place where the fraudulent voters were assembled. Held, that the ruling rightly was refused.</p> <p>At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, the presiding judge, as the ground for admitting the declarations of one defendant as evidence against the others stated his ruling that there was sufficient evidence of a conspiracy agains’t all the defendants. Held, that the ruling was right and the statement of it proper. When a preliminary finding of fact on the part of the judge is necessary for such a purpose there is no duty to conceal it from the jury.</p> <p>On a trial for conspiracy, declarations of the several defendants, admissible against themselves but not against the others, may be admitted, the jury being cautioned that statements made after the conspiracy had been carried out are admissible only against the party making them.</p> <p>At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, evidence that fraudulent voters were spoken to by one of the conspirators before all of .them had come into the scheme is admissible, in connection with proof that the others did come in and by implication adopted the act, and because the usual way of proving a conspiracy is by showing a series of acts on the part of the several defendants all converging to one point.</p> <p>A remark of a district attorney in the course of a trial is not the subject of exception.</p> <p>On a trial for conspiracy the weight of the testimony of fellow conspirators properly js left to the jury.</p> <p>At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, it was held, that there was sufficient evidence to go to the . jury of the guilt of one of the defendants, who was present at the preliminary meetings, which were held in his .house, and who contributed money toward the illegal scheme and helped at the time of the caucus.</p>

<p>Contract for taxes for the year 1899, paid under protest on the ground that the plaintiff was not an inhabitant of Brookline on May 1 of that year. Writ dated April 21, 1900.</p> <p>In the Superior Court Stevens, J. refused to order a verdict for the plaintiff and submitted the case to the jury, who returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Contributory of employee.</p> <p>One of a yard gang of a railroad company is not in the exercise of due care, if after jumping from the cab of a switching engine he steps or walks upon a parallel track six feet away, without looking to see whether a train is coming, and is struck by a freight train moving from seven to nine miles an hour, and his failure to look in the direction of the approaching train is not excused if the bell of the engine striking him was not rung.</p>

<p>Assignment, For the benefit of creditors. Bills and Notes. Surety. De minimis.</p> <p>Where the maker of a promissory note has made a voluntary assignment for the benefit of creditors, and the holder of the note on receipt of dividends amounting to sixty-seven per cent of his claim gives the trustee a release of all demands against him, this does not release the maker from his liability for the unpaid balance of the note, and the liability of a surety on the note is diminished only so far as he may have suffered loss by the release.</p> <p>In an action against a surety on a note, the judge directed a verdict for the plaintiff for the full amount claimed, whereas, to have been strictly accurate, he should have left to the jury the question, whether the defendant had been prejudiced, and if so how much, by a release given by the plaintiff to an assignee for the benefit of creditors of the maker of the note on receipt of a part of his claim. But it appeared, that the only possible loss to the defendant from this cause was such proportional part of twelve or fifteen dollars as the plaintiff’s claim of about $8,000 bore to the whole fund of $1,660,000 which had been received and disbursed by the trustee, and it did not appear that the attention of the judge had been directed to this possibility of loss. Held, that the defendant’s loss, if any, from the error was too trifling to be of consequence and an exception to the ordering of the verdict was overruled.</p>

Tort for injuries alleged to have been caused by a collision of an electric car of the defendant with a wagon in which the plaintiff was driving, on September 27, 1898. Writ dated June 12, 1899. At the trial in the Superior Court before Bond, J., Dr. Frank C. Richardson of Boston was called as a witness by the plaintiff and qualified as an expert who had made a specialty of nervous diseases.

<p>Contract for -121,780.04 expended by the city of Boston in the years 1900 and 1901 in repairing the portions of Atlantic Avenue and Commercial Street occupied by the tracks of the defendant. Writ dated October 23, 1901.</p> <p>In the Superior Court the case was heard on agreed facts by Stevens, J., who found for the defendant, and, at the request of the plaintiff with the consent of the defendant, reported the case for the consideration of this court.</p> <p>If this finding was right, judgment was to be entered thereon; otherwise, judgment was to be entered for the plaintiff for the full amount claimed, with interest from the date of the writ, or for such other sum as this court might find it to be entitled to.</p>

<p>Libel fob divobce, filed December 29, 1898, before the court at a previous stage in 180 Mass. 150.</p>

<p>Appeal, filed April 1, 1901, to the Superior Court under St. 1890, c. 127, by a Maine corporation from a decision of the assessors of the city of Boston refusing to abate a tax paid under protest by the appellant on certain lanterns belonging to it and used in lighting the streets of that city.</p> <p>In the Superior Court the case was heard by Fessenden, J., who found for. the appellant in the sum of $632.30 and ordered judgment to be entered against the city of Boston for that amount and costs. At the request of the parties the judge reported the case for the determination of this court. If on the evidence and law the judge was authorized to find for the appellant, the finding and judgment were to stand; otherwise, judgment was to be entered for the city.</p> <p>St. 1889, c. 446, now incorporated in R. L. c. 12, § 23, cl. 2, is as follows: “All personal property within the Commonwealth leased for profit shall be assessed for taxation in the city or town where such property is situated on the first day of May to the owner or the person having possession of the same.”</p>

Petition, filed in the Probate Court for the County of Suffolk February 25,1901, to determine the construction of the will of Hannah Barry as to whether certain real estate numbered 9 on West Cottage Street in that part of Boston called Roxbury owned by the testatrix at the time of her death was included in a trust created by the fourth article of her will. In the.

<p>Contract by the widow of Julius A. Gunther against the father of her late husband on an alleged oral agreement to pay the plaintiff $1,000. Writ dated November 8, 1900.</p> <p>In the Superior Court Richardson, J. refused to rule that the plaintiff could not recover and also refused other rulings requested by the defendant which are referred to by the court.</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,028.50; and the defendant alleged exceptions.</p>

<p>Practice, Civil, Exceptions. Landlord and Tenant, Tenant at Sufferance. Deed, Registration,</p> <p>The admission of immaterial evidence which does the excepting party no harm will not sustain an exception.</p> <p>A tenant at sufferance made such by a conveyance of which he had no notice or knowledge is not liable in an action for rent under Pub. Sts. c. 121, §§ 3, 6, 8.</p> <p>The recording of a deed is not constructive notice to one having an antecedent interest in the land conveyed.</p>

<p>Tort by a freight brakeman employed by the defendant for injuries alleged to have been caused by the negligence of the defendant in placing and leaving a car on an intersecting track so near the junction with the track on which the plaintiff’s car was moving that the plaintiff was knocked from the car and injured, with a second count, alleging that the defendant provided a freight yard insufficient in capacity and area and so laid out as to be dangerous, and negligently allowed cars to stand too near the junction of intersecting tracks so as to make it dangerous for trains to pass, whereby the plaintiff was injured. Writ dated June 10,1896.</p> <p>In the Superior Court the case was tried before Lilley, J., who at the close of the evidence ruled that the action could not be maintained and ordered a verdict for the defendant. The plaintiff alleged exceptions, which after the resignation of Lilley, J., were allowed by Fessenden, J.</p> <p>The case was argued at the bar in November, 1901, and after-wards was submitted on briefs to all the justices.</p>

Tort in the nature of trespass quare clausum fregit for entering the plaintiff’s oyster bed in that part of Wareham called' Bourne’s Cove, licensed by the selectmen of Wareham under Pub. Sts. c. 91, § 97, and digging in the soil thereof and injuring the oysters growing thereon and removing quahaugs therefrom. Writ dated November 5, 1901. In the Superior Court the case was heard upon agreed facts by Mason, C. J., who found for the plaintiff in the sum of $1 without costs.

<p>Bill in EQUITY, filed August 20,1901, to restrain the defendant from prosecuting against the plaintiffs an action at law under St. 1890, c. 437, for money paid as margins on wagering contracts.</p> <p>The defendant demurred. The Superior Court sustained the demurrer and made a decree dismissing the bill; and the plaintiffs appealed.</p> <p>The instrument under seal, mentioned by the court, on which the plaintiffs relied was as follows:</p> <p>“ Boston, February 6, 1901. Messrs. Corey, Milliken & Company, Bankers and Brokers, 53 State St., Boston. Gentlemen: I desire to carry an account with you for the purchase and sale of stocks, bonds and other securities and commodities. While I intend finally to execute all contracts by actual receipt or delivery of the securities or commodities, and payment of the price therefor, I may desire from time to time to have you carry them for me, temporarily, upon credit.</p> <p>“I may also desire.to make sales of securities or commodities purchased and carried for me without actual receipt and re-delivcry of the same by me, and to repurchase securities and commodities which I have ordered sold without actual delivery and receipt by me. In order to protect you from the annoyance of-litigation involving the burden of proving the existence of my intention at the time of the respective transactions, to perform my contract by actual receipt or delivery and payment of price, I beg to say that I, for myself, my heirs, executors or administrators, hez’eby agree and bind myself and them to protect you and to save you harmless from all claims and demands founded wholly or in part upon the fact that at the time of the transactions hereinabove desczúbed, and your employment in connection therewith, I had, or have, or may have hereafter, no intention to perform the same by actual receipt or delivery of the securities or commodities and payment of price, and I further bind myself, my lzeiz's, executors or administrators, to indeznnify you for any loss or damage incurred or suffered by you on account of the non-existence of such intezition. In witness whereof I have hereunto set my hand and seal this 6th day of February, 1901. Youz’s very truly, John H. Griffin.” (Seal.)</p>

<p>Contract and tort, with a count in each, for the alleged wrongful ejection of the plaintiff from certain land and a wharf and buildings in that part of Boston called Charlestown, alleged to have been let to the plaintiff by the transit commissioners of the defendant, and for the destruction of the buildings by them before the plaintiff’s alleged right of occupation expired. Writ dated February 15, 1899.</p> <p>At the trial in the Superior Court before Maynard, J., it appeared, that in July, 1896, the transit commissioners under St. 1894, c. 548, took the land, wharf and buildings, then belonging to the plaintiff, for the purposes of a new bridge to Charlestown. In January, 1900, the plaintiff recovered judgment for $10,000 as damages for such taking.</p> <p>After the taking and until shortly before January 13, 1897, the plaintiff remained in possession of the premises without interruption.</p> <p>On January 13, 1897, the transit commissioners passed the following vote which was transmitted to the plaintiff:</p> <p>“ Voted, That W. O. Wiley be notified to pay for the occupancy of the portion of Lockwood’s Wharf in Charlestown one hundred dollars per month from August 1, 1896, to January 1, 1897, to be paid forthwith, and at the rate of one hundred dollars per month from January 1, 1897, as long as his occupancy of the premises is not disturbed, or until he vacates the premises, and at a proportionate rate if his occupancy is disturbed, either party to have the privilege of terminating this agreement on giving one month’s notice in writing; and that if these terms are not accepted on or before January 16, 1897, he must vacate the premises forthwith or immediate possession will be taken.”</p> <p>Upon receiving a copy of this vote the plaintiff forthwith paid $500 in accordance with its terms and paid $100 on or about the first day of every month up to and including October 1, 1897.</p> <p>On October 22, 1897, the city of Boston by its transit commissioners made a contract with one O’Connell for the construction of an approach to the Charlestown bridge over the premises, whereby the contractor was to remove existing structures and the materials thereof were to become his property. On October 28 and 29 there were communications between O’Connell, the plaintiff and the commissioners. On October 30 the commissioners made a lease dated November 1 to O’Connell, who demanded possession from the last named day, and on November 4, after an unsuccessful attempt the day before, entered and took possession and tore down the buildings against the objection and protest of the plaintiff.</p> <p>At the close of the evidence the judge directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Devise and Legacy, Construction.</p> <p>On an appeal from a decree as to the interpretation of a will and codicil, it appeared, that the original will, after various gifts to other persons, gave to the appellant an interest in certain real estate and $5,000 in money. After other gifts, the rest and residue of the estate was given to four persons, of whom the appellant was one, in equal shares. The codicil was made four years later. It recited that by his original will the testator had given the appellant one fourth of the residue and the sum of $5,000, and, revoking this gift, gave to trustees one fifth of the residue and $5,000, to pay the income to the appellant during her life and at her death to distribute the trust property as therein provided. Then, after other changes, the testator revoked the residuary clause in his original will, which divided the residue among four persons of whom the appellant was one, and instead divided it among five persons of whom the appellant was one. The appellant contended, that she was entitled, first to a life estate in one fifth of the residue, and then to one fifth of the remaining residue outright, Held, that she was not so entitled ; that the provisions of the will and the two provisions of the codicil in regard to the appellant must be taken together, and so construed there was only one residue, one fifth of which was to go to trustees for the benefit of the appellant during her life.</p>

Bill in equity, filed January 19, 1898, and amended February 12,1901, by an infant, by his mother and next friend, having a judgment against the defendant Atkins for §7,000, wholly unsatisfied, to reach and apply insurance of §5,000 under a policy issued to the defendant Atkins by the defendant the Union Casualty aud Surety Company toward the payment of the plaintiff’s judgment.

<p>Tort for libel. Writ dated October 25,1899.</p> <p>At the trial in the Superior Court before Hardy, J., the jury returned a verdict for the plaintiff in the sum of $4,500; and the defendant alleged exceptions.</p>

<p> Wagering Contracts. Evidence. </p> <p>Semble, that in an action under St. 1890, c. 437, for payments made on wagering contracts, a plaintiff’s testimony that “ she meant to buy the stock on margin ” and that “ she did n’t mean to buy it outright, but just to speculate ” imports a real transaction and not a wager.</p> <p>In an action under St. 1890, c. 437, for payments made on wagering contracts, if it appears that the plaintiff put money into the hands of her husband, expecting him to speculate with it in actual transactions by employing a broker to buy stock for her and carry it on a margin and that the stock should be received and paid for, but left the whole"matter to her husband, and her husband entered into a transaction with the defendant which both of them knew to be a wager under the guise of a purchase and sale, there is evidence that the plaintiff had no intention to perform the contract in question and that the defendant had reasonable cause to believe that no intention to perform existed; and testimony of the plaintiff that she intended her husband to enter into an actual transaction is immaterial, such intention not having been disclosed to the defendant. In an action under St. 1890, c. 437, for payments made on wagering contracts, it appeared, that the plaintiff, through her husband as agent, made a contract which purported to be for the purchase and sale of a certain stock, that no stock was in fact delivered under the contract, and that the contract was terminated by the fall of the market price of the stock to a point where by the terms of the contract the plaintiff’s deposit of cash was forfeited and became the absolute property of the defendant. Held, that this was a “ settlement ” within the meaning of § 4 of the statute and under that section was prima facie evidence that the plaintiff had no intention to perform the contract and that the defendant had reasonable cause to believe that she had no such intention.</p>

<p>.Contract upon an account annexed of forty-seven items, twenty-five for ten per cent of the gross receipts of a restaurant amounting to $430.43, ten for money paid for gas bills amounting to $218.76, nine for electric light bills amounting to $89.03, one for money paid as salary of a porter amounting to $128, one for extra help employed for the benefit of the defendants amounting to $287, and one for labor performed and furnished by the plaintiff as superintendent at the request of the defendants amounting to $375. Writ dated August 21, 1899.</p> <p>The answer consisted of a general denial and an allegation of payment. There was also a declaration in set-off.</p> <p>At the trial in the Superior Court before Aticen, J., the jury returned a verdict for the plaintiff in the sum of $506.15; and the defendants alleged exceptions.</p>

<p>Insurance Commissioner. Insurance, Life, Valuation of assets of foreign company.</p> <p>So long at least as the insurance commissioner acts in good faith intending to obey the law, this court by writ of mandamus cannot compel him to change his conclusions either of law or fact in the valuation of the policies or assets of a foreign life insurance company.</p>

<p>Tort in the nature of trespass quare clausum fregit. Writ dated December 15, 1899.</p> <p>At the trial in the Superior Court before Gaskill, J., the judge ruled that the plaintiff was entitled to recover at least nominal damages, and left the case to the jury upon the question of damages. The jury returned a verdict for the plaintiff assessing the damages in the sum of $285; and the defendant alleged exceptions.</p> <p>Six rulings were requested by the defendant and refused by the judge. The substance of the first five is stated by the court. The sixth ruling, for the refusal of which the defendant’s exceptions are now sustained, was as follows: “ If the plaintiff had any rights in the premises after the surrender by Brown, it was only as tenant in common with the defendant, and this fact should be taken into consideration by the jury in assessing damages.”</p>

<p>Mortgage, Of chattels. Assignment. Estoppel.</p> <p>If an acknowledgment of satisfaction and discharge of a chattel mortgage signed by the mortgagee on the margin of the record in the city clerk’s office is to be treated as an assignment of the title to the goods to the mortgagor, it does not become operative until brought to his knowledge. If it is to be treated as an acknowledgment of payment, it can only operate by way of estoppel after some one lias acted on it. Therefore, if such an entry on the margin of the record is made by mistake by a mortgagee, he may revoke it at any time before it is known to the mortgagor, and may show in an action brought against him for taking the goods under his mortgage, that the debt secured by the mortgage was never paid, that the discharge on the margin was made by mistake, and that he cancelled it on the margin before the mortgagor learned of its existence.</p> <p>A mortgagee under a chattel mortgage signed by mistake a discharge of it upon the record in the city clerk’s office which he afterwards revoked before it was known to the mortgagor. Between the time of the writing of the discharge and its revocation the mortgagor had given to another a bill of sale of the mortgaged chattels stating them to be “subject to one mortgage”, the only mortgage to which the property was subject being the one already named. In an action by the holder of the bill of sale against the mortgagee for taking possession of the chattels under his mortgage, the plaintiff offered to show that the mortgagor when he gave the bill of sale to the plaintiff told him that the mortgage on the chattels had been fully paid. In fact no part of it had been paid. The evidence was excluded. Held, that the exclusion was right. The offer was not to prove a statement that the mortgage had been discharged upon the record, and the mortgagor then did not know of the defendant’s entry on the record, which afterwards was revoked before he heard of it, and it did not appear that the plaintiff took the transfer relying on the statement. The fact that the mortgagor told the plaintiff that the mortgage was paid when it was not was immaterial.</p>

Contract by a corporation manufacturing machinery, especially shoe machinery, against a corporation selling shoe machinery, with two counts for work done and for work and materials, and a third count for damages from the defendant’s alleged breach of a contract under which the plaintiff agreed to manufacture for the defendant certain parts of a patented machine, called the Bay State Lock Stitch Machine, at prices amounting in all to $12,529.70. Writ dated May 31, 1900.

<p>Practice, Civil. Contract, Implied.</p> <p>A motion to recommit a case to an auditor is addressed to the discretion of the court, and an order granting or refusing it is not the subject of an exception or of an appeal.</p> <p>By a contract in writing the plaintiff agreed to perform all the labor necessary for the erection of certain plumbing fixtures in the house of the defendant for a sum named, and to supply all the materials used at an advance of ten per cent over the cost of the stock. An auditor found that the plaintiff had performed the terms of the contract, but that most of the prices charged for the materials were excessive and not justified by the contract, and restated the account changing the prices as required by the evidence. The judge found the facts to be as stated by the auditor and found for the plaintiff. The defendant contended that the plaintiff could not recover on the contract, but only on a common count under which he must prove that his work benefited the defendant, and that he could recover only the increased market value of the defendant’s house by reason of his work in accordance with the rule in Gillis v. Cobe, 177 Mass. 584. Held, that the rule in Gillis v. Cobe did not apply to the case, as the plaintiff had performed his contract.</p>

Tort for injuries from a fall caused by the plaintiff stepping from the floor of a room of the Tremont Temple Building in Boston, used for the exhibition and sale of certain pictures, to the adjoining corridor alleged negligently to be constructed and maintained by the defendant four and seven eighths inches lower than the floors of the rooms opening upon it. Writ dated December 15,,1899.

<p>Negligence, Employer’s liability, defective machine, assumption of risk, plaintiff’s due care. Witness. Practice, Civil, Conduct of trial. Discretion of Court.</p> <p>In an action by an employee of the defendant, injured-while operating a circular saw by the machine throwing a piece of board against him, there was evidence tending to show, that the machine “ wobbled ” and that the accident was caused by the wobbling, that the saw might have been sprung or that it might have been set improperly on the arbor or the arbor set improperly in the boxes or the boxes so worn that the saw would not run smoothly, and that these things could have been discerned by proper care on the part of the defendant, also that the man whose duty it was to set the saw and who did set it admitted on cross-examination that “ he did not pay any particular attention in order to ascertain whether the saw was true and in perfect funning order.” Held, that this warranted a finding that the defendant was negligent in regard to keeping the machine in proper condition.</p> <p>In an action by an employee of the defendant, injured while operating a circular saw by the machine throwing a piece of board against him, there was evidence tending to show, that the plaintiff put the board in the saw as he always had put it in and that the saw “ kicked and threw it back at him”, and there was nothing to show that he knew or by the exercise of reasonable care ought to liaye known that the saw was out of order or that he did not possess ordinary skill. Held, that this warranted a finding that the plaintiff was in the exercise of due care and that he did not assume the risk of such an accident.</p> <p>A witness called by a defendant was cross-examined in regard to conversations with a certain witness for the plaintiff, and stated fully all the conversations. He then was asked if he made certain specific statements to the plaintiff’s witness, which he denied. The plaintiff’s witness then testified in rebuttal that the defendant’s witness had made to her the statements which he denied making. Thereupon the defendant’s witness was recalled and was asked to state what conversations he had had with the plaintiff’s witness. This on objection was excluded. Held, that the exclusion was no ground for exception; that, whether the witness should be allowed on surrebuttal to testify again to conversations already given, was a matter within the discretion of the presiding judge as to the conduct of the trial.</p>

<p>Contract against the executors under the will of Margaret Court of Lowell, for a legacy of $500. Writ in the Police Court of Lowell dated July 13, 1901.</p> <p>On appeal to the Superior Court the case was tried before Braley, J., who found for the plaintiff, and assessed damages in the sum of $583.75. The case came to this court on an appeal by the plaintiff from an order of the Superior Court denying a motion for entry of judgment under the circumstances stated by the court.</p>

<p>Evidence, Competency, to show possession of personal property. Replevin.</p> <p>Semble, that to show that a person is the tenant and actual occupant of a building is evidence that he is in possession of chattels in use in the building.</p> <p>In an action of replevin against a deputy sheriff for attaching goods on certain premises, there was only one witness and only by picking out particular expressions used by him and depriving them of their context or the reasonable explanations by which they were followed could even the form of a case be made out, to show that the plaintiff was the tenant of the premises and in consequence in possession of the goods when attached. Held, that the evidence was not sufficient to submit to the jury.</p>

<p>Negligence, In building in process of construction. Practice, Civil, Order of trial, Exceptions.</p> <p>In an action under St. 1898, c. 565, for the death of the plaintiff’s intestate caused by the falling of the roof of an engine room, owned and to be operated by the defendant and then in process of construction, it appeared, that the roof consisted of steel trusses then partly covered with terra cotta, that these trusses rested on steel columns, that the columns gave way, bending inward and causing the accident, that the columns were to have been enclosed in brick work, but that this only partly had been done, so that the brick wall was about ten feet short of two steel runway girders one on each side of the room, supporting a steel crane with a movable hoist which extended from one side of the room to the other, that the crane was worked by electricity, lifted fifteen tons, and itself weighed forty-eight tons, that it was furnished by the same contractor that made the steel work of the roof, that the crane was to be ready for use before the completion of the building, and that one of the uses to be made of it was in hoisting and moving various heavy articles needed to complete and equip the building, that the steel work was done, except some connecting pieces that could not be put in until the brick work was more complete, that the plaintiff’s intestate was at work in the employ of a contractor doing the mason work, that the crane was not under the control of the plaintiff's employer and its operator was not in his employ. There was evidence that the crane was used to move stones for the engine foundations not a part of the work of that contractor, and in moving machinery and steam pipes not shown to be covered by any contract with an independent contractor, and the defendant offered no explanation as to how it happened that the crane which it had caused to be placed in position was used for these various purposes. Neld, that the jury were warranted in finding that the accident was due in part to the operation of the crane before the steel work had been strengthened by the brick wall, that the crane was so operated by the defendant, and that this was negligence.</p> <p>An action under St. 1898, c. 565, for the death of the plaintiff's intestate caused by the falling of the roof of an engine room, owned and to be operated by the defendant and then in process of construction, was tried at the same time with an action by the same plaintiff for the same death against the steel company which made the steel trusses of the roof that fell and also made the steel columns that failed to support the trusses. At the close of the plaintiff’s evidence, the defendant owner elected to rest on the plaintiff’s case and put in no evidence. The judge refused to order a verdict for the defendant owner, and also refused to allow him to go to the jury immediately and before the defendant steel company had put in its evidence in the other case, and the steel company proceeded to introduce evidence tending to show that it was not liable and to cast the liability on the owner. At the conclusion of the evidence, the argumerits in both cases were made, and the judge submitted both cases to the jury, instructing them, that as against the defendant owner they could consider no evidence introduced after he rested his case. The jury found against the defendant owner. Meld, that, the questions, whether the cases should be tried together, and at what stage of the trial the case of the resting defendant should be submitted to tire jury, were within the discretion of the presiding judge, and that, if the defendant owner was prejudiced, his only remedy was by a motion for a new trial.</p> <p>Where two cases were tried together and the judge left it to the jury to say whether certain plans had been introduced against both of the defendants or only against one of tiiem, when probably he ought to have decided that question for himself, this v/ill not sustain an exception, if it nowhere appears that the plans contained anything prejudicial to the objecting defendant.</p>

<p>Costs, Taxation. Witness.</p> <p>When a case is in order for trial with a prospect that it will be reached speedily, and a person who may be wanted as a witness actually attends at a place in close proximity to the court house, with the purpose and expectation of going thence if necessary to the court house to be present at the trial of the case as a witness, and is then suffered to depart for the rest of the day, he fairly may be said to have attended as a witness on that day, and a witness fee for his attendance may be taxed.</p>

<p>Writ of entry, dated March 26, 1900, for certain premises on Wood Street in Woburn. r-.</p> <p>At the trial in the Superior Court before Hardy, J., without a jury, it appeared, that the tenant claimed title to the premises under a deed from one John Kovarik of Woburn to the tenant, dated October 27, 1899. The demandant claimed title under a sheriff’s deed dated February 14, 1900, and by virtue of an attachment, made in the suit of one Alexander Ellis against the grantor of the tenant, on October 16, 1899.</p> <p>The evidence tended to show that John Kovarik, on September 28, 1899, orally agreed to convey to the tenant the premises in question, the deed to be delivered on October 16; that on October 16, the time for passing the papers was postponed to October 27, at which time the tenant took his deed from John Kovarik.</p> <p>The tenant before taking the deed employed Mr. W. J. Hennessey, an attorney at law, to examine the records and to pass upon the question of the title of John Kovarik. Mr. Hennessey examined the records in the registry of deeds in the county of Middlesex and reported, among other things, that the property was free from attachment, and, as a result of his investigation and report, the tenant took the deed from John Kovarik, reciting that the property was free from any incumbrances by way of attachment.</p> <p>It appeared, however, that one Alexander Ellis had brought a suit returnable before the Fourth District Court of Eastern Middlesex, in which the defendant was named as John Kavarik, the writ being dated October 13, 1899, and on this writ one Ward well, a deputy sheriff, made an attachment and stated in his return that on October 16,1899, he had attached all the real estate of John Kavarik in the Southern District of the County of Middlesex, in which Woburn is situated, and that within three days thereafter he had deposited in the Registry of Deeds for the Southern District of the County of Middlesex a certified copy of the writ with so much of his return thereon as related to the attachment. The writ was returnable to the Fourth District Court of Eastern Middlesex on December 9, 1899. On the return day the plaintiff named in that writ, Alexander Ellis, by his attorney, George W. Norris, the demandant in this case, moved to amend his writ by changing the name of the defendant from Kavarik to Kovarik, and this motion was allowed by the court without notice to any other person interested.</p> <p>It appeared also, that Kovarik, the grantor of the tenant, was the defendant actually sued and served upon and had actually received notice of the suit by Ellis in which he was named as Kavarik.</p> <p>It appeared also, that the tenant was not aware of the inception of the suit, of the amendment made on the date of entry, or of the fact that there was a claim by any one, that the attachment existed on the property of his grantor, John Kovarik.</p> <p>It appeared, that in the records of attachments in the Southern District of Middlesex County, on October 27, 1899, there was a page in the book of attachments at the head of which appeared .the name Kovarik, and that neither on this page nor on any other page in the book of attachments was there any record of any attachment having been made on the property of any person under the name of Kovarik.</p> <p>Mr. Hennessey, who had examined the records and reported to the tenant that there was no attachment on the property of any Kovarik made in the year 1899, had his attention called to the claim of the demandant sometime after the entry of the suit of Ellis by his client handing to him a letter from the demandant, and immediately repaired to the Middlesex registry of deeds to verify the report which he had made before, and on finding the condition to be the same as he had reported to his client, the tenant, notified the demandant of his action and of the fact that there had been no attachment made on the property of Kovarik. Whereupon the demandant wrote to Mr. Hennessey a postal card, telling him to look under the name spelled Kavarib and he would find a record of an attachment made in favor of Alexander Ellis. On the receipt of this postal card Mr. Hennessey went again to the registry, and on a page more than forty pages in advance of the page set apart for attachments against the property of persons named Kovarik found a page on which a place had been set apart for attachments of property of persons by the name of Kavarik, and there found a record of the attachment upon the writ of Ellis filed within three days after October 16, 1899.</p> <p>It further appeared, that the suit of Ellis against the tenant’s grantor was brought upon a promissory note signed by him, and that the error in spelling the name of the defendant was due to an erroneous reading of the signature to the note; that the mistake in spelling the name was innocently made and with no intent to mislead or deceive any one; that although he had actual notice of the suit and called and talked with the demandant about it, the tenant’s grantor entered no appearance in the action and suffered it to be defaulted ; that judgment was entered against him on such default and execution was issued on the judgment; that the premises in question were sold on execution to the demandant and the proceedings on the sale were in conformity with the requirements of the statutes.</p> <p>It further appeared, that the tenant had been in possession of the premises ever since the date of his deed and that the fair rental value of the premises was $200 a year.</p> <p>Upon all these facts the tenant asked the judge to rule as follows : ,</p> <p>1. On all the evidence a verdict should be ordered for the tenant.</p> <p>2. The amendment to the writ in favor of Ellis, plaintiff, against Kavarik vacated the attachment.</p> <p>3. The name Kovarik is not the same name as the name Kavarik.</p> <p>4. The records of attachments in the registry of deeds were not sufficient in law to create an attachment on the property of Kovarik and the tenant, Anderson, took title free from the attachment on which the levy and sale were based.</p> <p>5. The estate of Kovarik, if ever attached, was not under legal attachment on October 29, 1899, in favor of Ellis.</p> <p>6. The levy and sale on the execution were not sufficient in law to give title to the demandant as against the tenant.</p> <p>7. The title of the tenant is good as against any one claiming under the alleged attachment of October 16, 1899, on the writ in favor of Ellis and under the judgment, levy, execution and sale put in evidence in this case.</p> <p>8. The amendment to the writ in the case of Ellis v. Kovarik was in the nature of the introduction of a new party.</p> <p>9. No notice of the amendment to the writ having been given to the tenant, he cannot be affected by it.</p> <p>The finding of the judge was as follows: “I find that John Kavarik and John Kovarik was the same person and no question as to such identity was made at the trial. I find that Ellis, or his attorney, in bringing the original suit did not use the name of another person nor did they fraudulently use a fictitious name, nor did they fraudulently attempt to conceal the fact that an attachment had been made.</p> <p>“ I find that John Kovarik had actual notice of the service of the writ upon him, and that he admitted that he had received such service before the entry of the writ.</p> <p>“ I grant the tenant’s third request for rulings with the addition of the words, 6 but I find that both names were used by the plaintiff as intended for the same person.’</p> <p>“I deny the other requests of the tenant.”</p> <p>The judge found for the demandant, and, at the request of the tenant, reported the case for determination by this court.</p> <p>If on all the evidence and findings the finding for the demandant and the rulings and refusals to rule were warranted, judgment was to be entered for the demandant accordingly; otherwise, the case was to stand for trial.</p>

<p>Contract against the treasurer of the Commonwealth for $5,200 certified by the metropolitan water board to be due to the plaintiff for real estate in Boylston in the county of Worcester taken under St. 1895, c. 488, and conveyed by the plaintiff to the Commonwealth. Writ in the Superior Court in the county of Worcester dated March 7, 1901.</p> <p>The Superior Court on motion of the Attorney General dismissed the action; and the plaintiff appealed.</p>

<p>Sale, Delivery. Contract, Substituted performance. Lien.</p> <p>The owner of a brick yard in the town of Harvard agreed to furnish two hundred thousand bricks at $5 per thousand to be delivered in Worcester. A few days later he gave the buyer a bill of sale of the bricks, in which they were described as two hundred thousand bricks, more or less as desired, to be shipped from the northerly end of a certain kiln consisting of the first ten arches. The buyer thought he was buying merchantable bricks ready for delivery, and paid for them at once $800, retaining $200 to pay the freight. By agreement the buyer went to the brick yard where there were nine and a half arches of bricks set up and connected together but not burned. They were at the southerly end of the kiln named. The seller said, “ These are your brick,” and placed his hand on the arches, saying “ Here are nine and one half arches, and there should be ten arches, which they are drawing in at the present time.” The buyer said he was not ready to use the bricks, and the seller informed him that he could let them lie there as long as he pleased. Held, that this evidence would warrant a finding, that there was a sale and delivery of the bricks; that although the buyer when he took the bill of sale supposed he was buying merchantable bricks and the arches were described as being ten at the northerly end of the kiln, he finally accepted in performance of this contract a delivery of nine and a half arches of unfinished bricks at the southerly end, with the understanding that they were to be completed by the seller, the delivery being such as the nature of the property allowed.</p> <p>One who takes a lease of a brick yard and a mortgage on all the personal property contained in it, purporting to include certain arches of unburned bricks belonging to a third person, does not acquire any lien on those bricks or right to their possession by burning and completing them.</p>

<p>Gift. Estoppel, By conduct. Savinys Bank.</p> <p>A husband made deposits represented by five different bank books in his wife’s name individually and as trustee in two savings banks, in which lie had also ten other accounts. The deposits consisted principally of checks drawn by the husband on an account kept by him in a national bank and made payable to the savings bank. The wife died, and the husband as her administrator filed an inventory of her estate in which the five deposits were scheduled as her property and then as administrator transferred the deposits to himself as his own property and so accounted for them. The wife before dying had executed assignments of the five accounts to her husband, but these had never been presented at the savings banks. Held, that the fact that the husband had inventoried the deposits as the property of his wife did not preclude him from claiming them as his own, and that his account as administrator treating the deposits as his own property rightly was allowed.</p>

<p>Tort by an infant by his father and next friend for personal injuries. Writ dated December 8, 1890.</p> <p>In the Superior Court the case was tried before Lilley, J., who ordered a verdict for the defendant. Later, Lilley, J. having resigned, the case was reported by Bell, J. for the consideration of this court. If the ruling of the judge ordering a verdict for the defendant was correct, judgment was to be entered on the verdict; otherwise, the case was to stand for trial.</p>

<p>Tort by the holder of an excursion ticket for leaving him at the Salem Willows on the afternoon of a Sunday by reason of the steamer starting before the advertised time. Writ in the Municipal Court of the City of Boston dated September 7, 1900.</p> <p>On appeal to the Superior Court the case was tried before Stevens, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action for personal injuries by one employed as a helper in the defendant’s iron works, it appeared, that the plaintiff was ordered by a person, who he said was "boss” and had six or seven and perhaps more men under him, to carry pieces of pipe to a part of an unfinished building of the defendant which was reached by passing over a temporary bridge laid that morning, formed by three planks side by side fastened together by a piece of wood nailed underneath in the middle, that as the plaintiff after leaving a piece of pipe was returning over the planks, one of them tipped or bent, his toes caught and he fell and broke one of his legs, and that after the accident he noticed that some of the nails had come out of the cleat. Seld, that, if the person called “ boss ” was acting as superintendent and was not merely a foreman in charge of a gang, it did not appear that he had anything to do with the planks ; also, that the planks could not be considered ways or works within the meaning of the employers’ liability act, being used only for a temporary purpose; also, that the evidence would not warrant a jury in finding that the defendant was negligent in failing to furnish the plaintiff with a suitable and safe way over which to pass in doing his work.</p>

<p>Practice, Civil, Exceptions. Negligence, Employer’s liability.</p> <p>A declaration at common law by a workman in a stone yard alleged that the plaintiff was injured by the negligence of the defendant in not furnishing suitable and proper dunnage to be placed between the stones of a pile of curbstones which fell upon the plaintiff. The presiding judge refused a request of the defendant to rule that upon all the evidence the plaintiff was not entitled to recover. The request refused did not refer to the pleadings. The jury returned a verdict for the plaintiff. Held, that on the argument of an exception taken by the defendant to the refusal of the ruling, it was open to the plaintiff to contend that the fall of the stones was due not only to the want of proper dunnage but to the stones being piled improperly, as an amendment of the declaration might have been allowed if the attention of the judge had been called to the matter.</p> <p>A workman in a stone yard cannot recover at common law against his employer for injuries from the falling of a pile of curbstones caused by improper dunnage or by improper piling, if the stones were piled by his fellow servants and the dunnage placed between them was selected by those servants.</p>

<p>Practice, Civil, Amendment after verdict, Costs.</p> <p>It is within the power of a trial court to allow the attaching officer after verdict and before judgment to amend his return on the writ by adding thereto certain charges and fees for the care and custody of the property, this being especially permissible where the amendment relates to matters that occurred after the entry of the writ. If the defendant wishes to object to the officer’s charges he must appeal from the taxation of costs by the clerk.</p>

<p>Tort by a married woman, carrying on a milk business, against a deputy sheriff, with a count for the conversion of, and another count for unlawfully taking and carrying away, certain cows, horses, wagons, hay, straw and other property belonging to the plaintiff, with a third count for failure to remove the keeper and property without delay after notice to do so and for continuing to occupy the premises of the plaintiff after a reasonable time. Writ dated December 18, 1899.</p> <p>In the Superior Court Sherman, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Petition, filed October 18 and amended December 17, 1901, for a writ of mandamus addressed to the officers of the Contractors Plant Company, a corporation organized under the laws of the State of Maine, authorized to do business in this Commonwealth and having its usual place of business in Boston, commanding the respondents Buzzell and Buffum to refrain from attempting to act as directors of that corporation, and commanding the respondents Cross, Gilbreth and Webber to recognize and receive the petitioners as directors, and to act with them as such in the business of the corporation.</p> <p>The case was heard by Barker, J., who sustained a demurrer of the respondents to the amended petition on the ground stated by the court and ordered that the petition be dismissed; and reported the case for the determination of the full court, such disposition to be made thereof as law and justice might require.</p>

<p>Tort with two counts for, malicious prosecution and two for abuse of criminal process. Writ dated April 4, 1898.</p> <p>At the trial in the Superior Court before Blodgett, J., it appeared, that the plaintiff was in charge of a boarding house belonging to the president of the defendant and used for its employees, the furniture belonging to the defendant; that the defendant wished to remove the plaintiff and put in his place a family named Gray; and that the Grays took possession of the kitchen and proposed to make use of the cooking stove, whereupon the plaintiff took the stove covers and carried them to his own room, so that the stove could not be used. One Bailey, an agent of the defendant, procured a warrant for the plaintiff’s arrest on the charge of wilfully and maliciously injuring personal property of the defendant, by the removal and concealment of the lids or covers of a certain cooking stove. The plaintiff was arrested by an officer who came with Bailey, and finally was released on agreeing to move out of the house. This he did, taking his family and belongings. On the order of the officer he brought back the stove covers, which were not injured. The warrant was never returned into court, and no further proceedings were had.</p> <p>The judge ordered a verdict for the defendant; and the plaintiff alleged' exceptions, which, after the resignation of Blodgett, J., were allowed by Fessenden, J. '</p>

<p>Pleading. Insurance, Life. Bankruptcy.</p> <p>In an action by a trustee in bankruptcy to recover the cash surrender value of an insurance policy on the life of the bankrupt, the declaration must contain averments showing that the policy has a cash surrender value, and if issued in another State the laws of that State giving such a policy a cash surrender value must be stated as facts. An averment that “ said policy was an asset, it having at the time a cash surrender value of §692.50,” is bad on demurrer, being either a conclusion of law or a deduction of fact from primary facts not stated and necessary to set forth a cause of action.</p> <p>If a bankrupt at the time of his bankruptcy holds a life insurance policy providing that, if he dies within twenty years, the company shall pay the amount of the policy to his mother if living or if she is dead to his estate, and at the end of twenty years, if he survives, the company shall pay it to him, he has a valuable interest in the policy which passes to his trustee; but the trustee cannot surrender the policy without the consent of the mother, and in suing for the cash surrender value of the policy must allege that such consent of the beneficiary has been given.</p>

<p>Witness, Waiver of privilege. Evidence, Relevancy. House of 111 Fame.</p> <p>At the trial of a man and woman on a complaint for keeping a house of ill fame, the man testified on direct examination that he was the husband of the other defendant. On cross-examination he testified, against his objection, that at the time of his marriage to the defendant he was married to another woman still living from whom he had not been divorced. Held, that the cross-examination properly was allowed; that the witness by testifying in his own behalf had submitted himself to cross-examination on all matters relevant to the issue, arid that the question whether the two defendants were married or not was relevant to the issue, and therefore the evidence was competent, even if it was not also competent for the purpose of showing the actual relation between the two defendants with a view to repelling any presumption of coercion that might arise if the woman defendant was the wife of the other.</p>

<p>Contract by a lessee against the administrator of the estate of his assignee of the lease to recover rent and costs paid by the plaintiff in an action brought against him by the lessors. Writ dated November 3, 1899.</p> <p>The answer contained a general denial and also set up the statute of frauds.</p> <p>At the trial in the Superior Court before Stevens, J., without a jury, the defendant requested the judge to rule, that the mere acceptance by the defendant’s intestate of an assignment of the lease, whether the assignment was under seal or not, in the absence of any evidence that the defendant’s intestate or the plaintiff ever occupied the premises or had the beneficial use thereof, would not create such privity of estate as would entitle the lessors to maintain an action against the defendant’s intestate for the rent reserved under the lease, and that the judge therefore must find for the defendant.</p> <p>The judge refused to make this and other rulings requested by the defendant.- He found for the plaintiff, and also found that the assignment of the lease, which was not produced in court, was under seal. The defendant alleged exceptions.</p>

Tort for injuries caused by the plaintiff stumbling over a step at the entrance of the staircase leading to Arcanum Hall in that part of Boston called Jamaica Plain, against the owner of the building, alleging faulty construction and insufficient lighting. Writ dated October 12, 1898. In the Superior Court Maynard, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.

<p>Infant. Contract, Construction.</p> <p>An infant on coming of age cannot affirm part of a contract without ratifying the whole of it.</p> <p>The owner of a lot of land agreed to sell it to a minor and to build him a house upon it. The minor was to pay to the vendor a certain sum in cash and to give a mortgage for the balance of the purchase money to another person who was to furnish the money from time to time for building the house. These things were done, and the minor gave an assignment to the vendor of all the money to be furnished under the mortgage. When the house was completed the minor moved into it, then, coming of age, conveyed it to the plaintiff, telling him that there was a mortgage upon it which he did not consider valid, because he made it when a minor. The defendant, having acquired the mortgage, proceeded to foreclose it, and the plaintiff brought a bill in equity to restrain iiim from doing so. Held, that the transaction was all one contract, and that the minor on coming of age could not affirm part of it without ratifying the whole, and, having kept the land, could not avoid the mortgage given for the purchase money.</p>

<p>Contract upon an account annexed amounting in all to $2,038.67 for professional services as an expert electrical engineer and for expenses. Writ dated March 1, 1901.</p> <p>In the Superior Court Hardy, J. ordered a verdict for the plaintiff for two items only, amounting to $77.61; and the plaintiff alleged exceptions.</p> <p>The bill of exceptions stated the following evidence in regard to the contract between the parties and the facts relied upon by the plaintiff as constituting a breach on the part of the defendant: The plaintiff testified, that the defendant was a promoter, investor and contractor in connection with lines for electric lighting and electric street railways, that the plaintiff, being an electrical engineer, the defendant spoke to him of various projects he had on hand, asked him if he was in a position to go to Ohio, and offered him $2,500 a year for this work ; that, under reasonable conditions, it would take perhaps six months to build a proposed road, and for a proposed power station possibly a year. The plaintiff, in reply,-told him he could arrange to go to Ohio, but there were one or two things to be considered, and that the plaintiff would have to make a report for the Shawinigan Water and Power Company, which he had already contracted to do, and in which matter he had already made a preliminary report; that he stated to the defendant that this would take him away for about a week, the company being located ninety miles north of Montreal; that he further stated to the defendant that he was under obligation to the Boston Gas Light Company to continue to furnish it expert services in the matter of the subway explosion cases when they were reached in court, and that it was impossible to tell how long this would take; also, that for family reasons it would be necessary for him to be in Boston about January' 1, 1901. The plaintiff testified, that after these conversations, on or about September 7, 1900, the arrangement was closed, and a few days later he started for Springfield, Ohio, and there and elsewhere performed various services. He further testified, that shortly before November 1 he notified the defendant that he should have to go away for a little while to complete the Shawinigan report, and that in reply he received a letter from the defendant dated October 30, 1900, as follow's:</p> <p>“ In regard to your trip to Montreal I may say from what I have seen of the time it takes to make one of these reports, I think if you intend to go it would be better to take a leave of absence without pay for thirty days, as that would give you sufficient time to make your report without interfering with our business. This would be the only w'ay that I should be willing that you should do this work.</p> <p>“ Under these circumstances you can commence your leave of absence with the first day of November, reporting back again the first of December. Of course, I would much prefer that you did not go, but as long as I said you might I feel that this will be the only satisfactory way for me to arrange it.”</p> <p>The plaintiff testified, that previous to this letter there never had been any talk of his being laid off for thirty days without pay ; that the time actually taken in Canada in connection with this report was but three or four days, that the plaintiff's total absence on that account was not over five days, and that the plaintiff never agreed or assented to be laid off for thirty days without pay on this account; that the plaintiff immediately wrote the defendant from Ohio on November 1 as follows:</p> <p>“ I do not think your Montreal arrangement is best for the work out here, nor is it in accordance with my ideas of our understanding. I am under obligations to the Shawinigan people, however, as I have already been up there and given them a preliminary report, and promised them one of my complete reports as soon as their plant was in proper condition. I will come to Boston, therefore, and try and see you on Saturday.”</p> <p>The plaintiff testified, that he came to Boston and saw the defendant on November 3, and told him that he did not consider the defendant’s proposition in accordance with the agreement; that he was obliged to go to Montreal and Shawinigan, and that he did not recollect what answer the defendant made; that he got" back to Boston on Friday, November 9, and saw the defendant the next day; that they had a long conversation on the new signal system, and that the defendant submitted some papers to the plaintiff and wished his'ideas upon them ; that the plaintiff took them, looked them over, and the next day wTrote the defendant a letter, giving him such an opinion; that in their conversations on November 10, the plaintiff told the defendant that he had finished the work in Montreal, that there was nothing further in that connection for him then to do, and that he was ready to do anything the defendant desired; that he saw the defendant several times up to December 12, and had conversations with him; that at these conversations the plaintiff told the defendant that the machinery for the new power station ought to be ordered, the designs made and the work started, and that he, the plaintiff, stood ready to begin work at any time as soon as notified by the defendant; that the plaintiff had a telephone at his house and his office and was accessible at any moment; and that at these conversations the matter of the proposed power station was discussed.</p> <p>The plaintiff further testified: “About the first of December I saw him again and the question came up of getting out and starting the plans of the power station, and getting out the specifications for machinery in order that there might be no delay when the machinery was needed. At that time Mr. Appleyard said he wanted me to take the whole thing off from his hands as he was too busy with other matters to give it any attention, and I then proceeded to, started to make preparations for drawing plans of the power station.” He also testified, that they had some discussion as to where the work should be done; that the plaintiff made preparations by cleaning out an old room formerly used as a testing laboratory at his office, buying drafting tables, drawing materials, catalogues, etc., getting ready to begin drafting ; that this was early in December, 1900. Referring to this time the plaintiff was asked: “ What was the conversation you had that day with Mr. Appleyard ? ” and answered: “ I told him I was going ahead with the plans of the power station, and wanted to consider the question of machinery that he had on hand, and, in general, had a consultation with him on the subject. I remember he still considered me on leave of absence.”</p>

<p>Contract against the town of Brookline for $61.25 alleged to be due the plaintiff for services as a member of the fire department of that town during one week from February 5 to February 12, 1900, and two weeks from August 20 to September 3, 1900. Writ in the Municipal Court of Brookline dated July 2, 1901.</p> <p>On appeal to the Superior Court the case was heard on the following agreed facts: Before February 5,1900, complaint having been made against the plaintiff for leaving his horses while in the discharge of his duty, and attempting to assault a motorman, a hearing was given by the fire commissioner on January 27, 1900, at which the plaintiff was present; and the fire commissioner found that the plaintiff was in the wrong, and notified him that he would lose a week’s pay. The plaintiff made no objection of any kind, and continued to perform his duties as usual.</p> <p>Thereafter before August 20, the plaintiff having been complained of by the assistant chief for intoxication, another hearing was given him by the commissioner on August 18, 1900, at which he was present and admitted the charge. The commissioner thereupon notified him that he would lose two weeks’ pay, be reduced to the ranks from the position of lieutenant which he then held, and be transferred to another station. The plaintiff made no objection to the loss of pay, but asked for remission of the loss of his rank, which was not granted.</p> <p>The plaintiff thereafter continued to serve as a member of the fire department, until he resigned at the suggestion of the fire commissioner, on or about May 14, 1901, and made no claim for the pay in question until after his resignation.</p> <p>No question was raised by the plaintiff as to the fairness of the hearings, or the merits of the charges, but his contention was that these amounts were fines, which the fire commissioner had no right to impose, and that therefore the sums declared forfeited were due to him.</p> <p>It was further agreed, that the fire commissioner was the head of the fire department, and as such had the right to employ such persons as might be required for that department, to determine their duties, and to discharge them at any time for cause which he deemed sufficient. St. 1899, c. 135.</p> <p>The plaintiff served as a member of the fire department for about two years and during all the time of his employment, and subsequently, it had been the custom of the department, with which the plaintiff was familiar, instead of discharging men for minor offences, to stop their pay for short periods at a time.</p> <p>If upon the above facts the plaintiff was entitled to maintain this action, judgment was to be entered in his favor for such amount as lie might be entitled to and costs; otherwise, judgment was to be entered for the defendant, with costs. The Superior Court gave judgment for the defendant; and the plaintiff appealed.</p>

Tort for injuries caused by the plaintiff falling by reason of the alleged negligence of the defendant in starting its train while the plaintiff was alighting therefrom at North Abington. Writ dated August 24, 1899.

<p>Contracts with counts in special contract, for money paid and work done, and on an account annexed. Writ dated November 17, 1900.</p> <p>At the trial in the Superior Court before Hardy, J., neither party desired to go to the jury on any issue, and the judge ruled that there should be a verdict for the plaintiffs. He so directed, and damages were assessed in the sum of $1,422.42. The defendants alleged exceptions.</p>

<p>Kansas. Corporation. Practice, Civil, Amendment, Equitable defence. Limitations, Statute of.</p> <p>Under the law of Kansas, it is a good eqnitable defence to an action to enforce a stockholder’s liability under the statutes of that State, that the defendant purchased in good faith and for full value exceeding in amount his liability a note guaranteed by the corporation, and the fact that the note and the mortgage securing it were not transferred to the ñatee of the defendant is immaterial.</p> <p>In an action to enforce against a resident of Massachusetts a statutory liability as a stockholder of a Kansas corporation, the defendant set up as an equitable defence, that he purchased for full value exceeding in amount his liability a note guaranteed by the Kansas corporation. It was contended by the plaintiff that this note was barred by the statute of limitations. Held, that the equitable defence did not depend on the defendant’s right to maintain an action at law against the corporation, but were it otherwise, a suit on the note would not be barred by lapse of time because, first, the Kansas statute of limitations has no force here, and secondly, our statute of limitations does not run in favor of a foreign corporation which could not be sued in this Commonwealth.</p> <p>The fact that a defendant has pleaded in set-off as the holder of a certain note is no reason for refusing to allow him to amend his answer by setting up an equitable defence, averring payment of the note by him • in discharge of a guaranty thereon.</p>

<p>Petition, filed September 6, 1898, for the assessment of damages from the limitation of the height of buildings on and near Copley Square in Boston by St. 1898, c. 452.</p> <p>At the trial in the Superior Court before Sherman, J., Edward H. Eldredge, a witness for the petitioner, who had been for thirteen years engaged in the real estate business in Boston, and was familiar with the value of land in Copley Square, testifled that about January 1, 1900, the Hotel Cluny, an apartment hotel, adjoining the petitioner’s premises, sold for $230,000. The petitioner then offered to show by this witness, that the passage of the act affected the price at which the Hotel Cluny was sold, to the detriment of the vendor. The judge excluded the evidence and the petitioner excepted. The witness further testified that the act damaged the property of the petitioner to the amount of $25,000, and that he came to this opinion by his knowledge of sales before that date and sales of adjoining property since.</p> <p>At the close of the evidence, the judge refused to give three rulings requested by the petitioner, which are stated by the court, and instructed the jury, that, if the petitioner was damaged, the jury should give her compensation, but if she was not, they should give her nothing. Adding “ in other words, if you find her property was worth just as much the next day after this restriction was put on as it was the day before, why then she is not damaged and your verdict is to be for the city.”</p> <p>The jury returned a verdict for the respondent; and the petitioner alleged exceptions.</p>

Contract by an attorney at law for fees and disbursements. Writ in the Municipal Court of the City of Boston-dated January 25, 1901. On appeal to the Superior Court the case was referred to an auditor, who found for the plaintiff, and later was tried before J'lardy, J., on the auditor’s report and oral evidence. Mr, Thomson, mentioned by the court, was the attorney for the creditor in whose suit the defendants had been arrested.

<p> Way. Practice, Civil. </p> <p>• A petition for damages from the Widening and alterations of a highway, under Pub. Sts. c. 49, §§ 68, 69, 79, St. 1892, c. 415, if land is taken, must be filed within one year from the day the way is entered upon and possession taken, and, in all other cases, within one year from the date of the order. Assuming that the defence that a petition was not filed in time under these provisions must be pleaded, and that it may be waived, yet, in a case where no answer has been filed and none demanded, the objection may be taken by an oral motion to dismiss made when the jury is impanelled, by consent reduced to writing during the trial and “ formally filed in writing ” some days after the verdict.</p>

<p>Constitutional Law, Remedial statutes. Boston Terminal Act.</p> <p>The constitutional provisions for the protection of property allow a certain limited degree of latitude in regard to the restoration of remedies that have been extinguished by lapse of time when the seeming infraction is not very great and when justice requires relief. On this principle, St. 1899, c. 386, extending until January 1, 1900, the time for filing petitions for damages from changes of grade made under the Boston terminal company act, St. 1896, c. 516, was held to be constitutional. The doctrine of Campbell v. Holt, 115 U. S. 620, was not passed upon.</p>

<p>Tort for injuries caused by the plaintiff tripping over an obstruction on the floor of a car of the defendant. Writ dated February 9, 1900.</p> <p>At the trial in the Superior Court before Sheldon, J., the jury returned a verdict for the plaintiff in the sum of $1,150; and the defendant alleged exceptions.</p> <p>The following is a statement of the case made by Barker, J.:</p> <p>The plaintiff entered as a passenger one of the defendant’s electric street uars. She went in through the front door and .finding the car very full stood near the door with a number of parcels upon her arm. After the car started' she walked toward the rear to take a seat. The floor surface was of wooden slats in which was an iron ring used to lift a trap. The ring when not raised for that purpose was so designed as to lie flat even with or a little below the surface of the floor in a depression toward the front door from the point at which the ring was attached. When up the ring could be put down only toward the front door. While the plaintiff was walking to her seat she tripped, fell and was injured. She testified that as she started she caught her toe in the ring and that it threw her down. Another witness testified that when the plaintiff started forward the ring stood up and that when the plaintiff stepped over it she went headlong and the bundles flew and the conductor came in and helped her up, and that after the plaintiff fell a lady with an umbrella poked the ring back. The plaintiff also testified that she did not see the ring until after she caught her toe, that when she sat down she looked to see what it was she tripped over, that she saw the ring and that a lady took an umbrella and pushed it down in place. Another passenger testified that she saw the plaintiff enter the car and stand by the door, and that just as the car started a lady beckoned to the plaintiff to go to a seat, and the plaintiff went in that direction and caught her foot in the ring and fell, and that after the accident the ring was pushed down by a lady who had an umbrella.</p> <p>Each of these three witnesses testified under exception that they did not notice the ring before the time of the accident and that they did notice it during the time they were in the car after the accident. The first witness testified under exception that the ring would fly up almost every time the car started after stopping. The plaintiff testified under exception that the ring would come up when the car started, that the lady pushed it down three or four times and that the conductor came in then and kicked it dowjti, and also, upon cross-examination, that after the accident she saw the ring coming up a number of times, and that the woman put it down with her umbrella, that the passengers were all talking about it, and that when the car would start the ring -would go up. Her testimony that after she sat down she looked to see what she tripped over and saw the ring was also under exception. The testimony excepted to from the third witness was to the effect that the conductor pushed the ring down with his foot at another time after the accident and that the ring rose every time the car started after a stop. This witness also testified upon cross-examination that she noticed the ring come up frequently after the accident and that it was pushed down by a lady after the plaintiff fell and that the witness saw the conductor come in and push it down and saw it pushed down more than once by a lady with an umbrella.</p> <p>The defendant introduced the testimony of a civil engineer who described the car and testified to a plan of the flooring. It then called its electrician, its assistant electrician, its employee who had charge of the repairs of cars, its master mechanic, a superintendent and another electrician, all of whom were familiar with the car except one and he had been present at certain experiments made with the car to ascertain whether the ring could be made to rise by starting the car. The evidence of these witnesses tended to show that the car originally had been purchased of a reputable maker, and had been changed by the defendant from a horse car to an electric car; that the traps were put in to give access to the electrical apparatus; that the ring was a device in common use and as safe as any known, and that the car had been inspected daily, and had been found all right in the morning both on the day of the accident and the day before, that none of these witnesses had ever heard or known of a ring coming up because of any motion of the car and that the rings remained in place when the car had been stopped and started in the course of experiments tried with a view to ascertain whether the rings could be made to rise by starting the car, that there was no known appliance so good for the purpose as the ring, and that the witnesses knew of no connection which could possibly be made between the electric motor and the ring to cause the ring to rise in the operation of the car.</p> <p>The defendant then called the person who was the conductor of the car on the day of the accident, November 28, 1899. He testified that he thought the plaintiff fell from stepping on her dress; that she had not reached the place where the rings were when she fell; that he did not go and push down the rings, did not see any woman with an umbrella pushing them down, and never after the accident saw any rings rise in the operation of the car. Upon cross-examination he testified that he never saw one of the rings rise when the car started, never knew of any other person hitting his toe against the ring in his car and falling, and did not remember a woman with a little girl riding in his car previous to the time of this accident who caught her toe in the ring of this car and was thrown; that he had operated this car and other cars of the same pattern for some time before, and had never known of any passenger being thrown down by a ring coming up in the car. The defendant also called the motorman, who testified that he opened the front door for the plaintiff, that she stood up and held the car handle after he had started the car, and he saw no more of her after that, and that he started the car easily and there was no unusual jerking of the car.</p> <p>In rebuttal the plaintiff called a witness whose testimony was objected to as incompetent at that stage of the case and was admitted in the discretion of the presiding judge. The bill of exceptions did not state that an exception was taken to the admission of this testimony. The testimony was to the effect that in the fall of 1898 the witness was riding on this car in charge of the same conductor and with her little girl; that they entered the car at the front door, her daughter preceding her, and that when she had just left the door the daughter caught her foot in the ring and fell.</p> <p>The plaintiff then called one Welch, formerly a conductor of the defendant upon this car, but no longer in the defendant’s service. Under a ruling that the witness could not testify as to whether he saw the ring rise once or twice, but might as to whether there was a general practice or rule as to cars of that pattern, the witness said he could speak as to cars of that kind, and then followed this question and answer: Q. “At what time — when would they rise, at what point in the movement of the cars?” A. “Either starting or stopping I have observed it.” Upon cross-examination the witness said that he could not tell whether the rings rose once a month, once a week or once a year, and that he should say they rose only occasionally.</p> <p>At the close of the testimony of this witness the defendant asked that all his testimony be stricken out. The judge said there was an inconsistency, but that it should be left to the jury, and the defendant excepted to the ruling.</p> <p>At the close of all the evidence the defendant asked the judge to rule that there was no evidence in the case to warrant the jury in finding that the defendant or its servants or agents were negligent, and excepted to a refusal so to rule.</p>

Tort for libel, being one of five actions by the same plaintiff against different newspapers which were tried together by an order of a judge of the Superior Court under St. 1897, c. 525, § 3. Writ dated January 5, 1898. At the trial in the Superior Court before Richardson, J., the plaintiff relied only on publications of January 7 and 9, 1896. It appeared that a.t the time of the publications the plaintiff was a physician living at West Springfield and practising in Holyoke.

Tort by a boy in a machine shop against his employers for the loss of two fingers cut off by a steam power punch press which the plaintiff was engaged in operating. Writ in the Municipal Court of the City of Boston dated October 12, 1900.

<p>Trust, Resulting. Frauds, Statute of.</p> <p>A bill in equity to compel the defendant to convey certain laud to the plaintiff alleged, that the plaintiff and defendant were brothers and that in pursuance of a plan of their mother to divide her property between them she gave certain other land to the defendant and intended to give this land to the plaintiff, that this land was paid for with money raised by a mortgage on other land then standing in the name of the defendant, that the land in question was conveyed to the defendant, the deed being placed in the possession of the plaintiff, and that the defendant accepted the conveyance with the oral agreement made with his mother and the plaintiff, that whenever requested to do so by his mother he should convey the land to the plaintiff, and that in the meantime he should permit the plaintiff to occupy the land free of rent on paying taxes and for repairs on the house and buildings, that under this agreement the plaintiff entered and occupied tile premises openly and exclusively and made expenditures and improvements upon the estate with the knowledge of the defendant, that the mother requested the defendant to convey the land to the plaintiff which he refused to do, and, the mother having died, the plaintiff demanded a conveyance of the land from the defendant. On demurrer held, that the bill could not be sustained; that the facts alleged did not establish a resulting trust, nor any trust, in favor of the plaintiff, and that there was no such performance on the plaintiff’s part as to take the case out of the statute of frauds. Semble, that on the facts alleged there might have been no trust in favor of the mother and no consideration for the alleged agreement of the defendant.</p>

<p> Capital and Income. </p> <p>The stockholders of a coal company, the par value of whose shares was $50, accepted an offer of $276 a share for all their stock with an arrangement that the purchase should not include a surplus called “ treasury assets,” which was to be liquidated and distributed to the stockholders' of record on a certain day as an extraordinary dividend. These assets besides cash, coal and accounts receivable included $3,000,000 of railroad bonds used as working capital. The dividend was declared by the directors as “representing accumulated and undivided profits of the company.” The total amount of the dividend was between two and three times as much as the par value of all the capital stock. On a bill for instructions by a trustee under a will, to determine whether the dividend should be treated as capital or income or as in part capital and in part income, it was held, that the directors treated the assets as income and properly could do so, and that the dividend was one wholly of income.</p>

<p>Bill in EQUITY, filed November 8, 1900, to restrain the defendant from continuing the erection of his house within ten feet of the line of Calumet Street in Boston and for an order requiring the defendant to move back his house and to pay the plaintiffs damages.</p> <p>At the hearing in the Superior Court before Bell, J., it appeared, that the plaintiffs’ deed was dated May 16, 1893, and the defendant’s deed April 25,1896. Both contained restrictions requiring that no building should be erected or maintained within ten feet of Calumet Street. The restrictions in the defendant’s deed were to remain in force for fifteen years from June 1,1894. The houses both of the plaintiffs and the defendant projected into the restricted space and in a similar manner. The plaintiffs did not know this until after the filing of their bill. The plaintiffs built in 1893, and the defendant in 1900, his house being nearly completed when the bill was filed. In both cases the architects and builders were instructed to erect the houses ten feet back from the street, and in both cases the violation of the restriction was unintentional.</p> <p>The judge signed a statement of the facts found by him, and made a decree dismissing the bill; and the plaintiffs appéaled.</p>

<p> Mortgage. Equity Pleading and Practice. </p> <p>A court, having made a decree in equity ordering a foreclosure sale, may make an order postponing the sale without notice to the parties. The rights of all parties would be protected sufficiently by notice of the time to which the sale was adjourned.</p> <p>A departure by a special master conducting a foreclosure sale from the terms of the decree ordering the sale, does not require that the sale should be set aside, unless also it appears, or there is good reason to believe, that the party complaining has been injured thereby, and has a right to be heard concerning the matter of which he complains. In such a case the court can change or modify the decree at any time before it is carried into effect, and, after it is carried into effect, can confirm the doings of its agent, provided the rights of parties interested have not been affected to their injury.</p>

<p>Tort for injuries from being struck and knocked down by some part of a horse or wagon of the defendant through the negligence of the driver alleged to be the defendant’s servant, while the plaintiff was returning to the sidewalk after picking up a handkerchief dropped by the driver of a coal team. Writ dated October 21, 1899.</p> <p>In the Superior Court the case was tried before Maynard, J. At the close of the plaintiff’s evidence, the judge, at the request of the defendant, ruled that the plaintiff could not maintain his action, and directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Evidence, Burden of proof. Bills and Notes.</p> <p>A ruling, that the maker and indorser sued on a promissory note must establish the fact that the plaintiff took the note without paying value for it before they can show fraud in the inception and delivery of the note, is wrong. The reverse is correct, that upon proof that a note was obtained or put into circulation by fraud, the indorsee, in order to recover, must show that he gave value for it in good faith before maturity.</p>

<p>Tort for personal injuries. Writ in the Municipal Court of the City of Boston dated February 2, 1901.</p> <p>On appeal to the Superior Court the case was tried before Hardy, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Practice, Civil, Issues of fact, Parties. Abatement. Pleading, Variance.</p> <p>Conflicting evidence is for the jury.</p> <p>One of two persons owning a horse and wagon in common may recover for an injury to the property in a separate action, where nonjoinder of the other owner is not pleaded in abatement.</p> <p>The allegations in a declaration of injury to “ the plaintiff’s carriage ” and “ the plaintiff’s horse ” are satisfied by proof of any interest sufficient to support an action.</p>

<p>Agency, Ratification. Practice, Civil, New trial. Discretion of Court.</p> <p>In order that the act of another may become binding by ratification, it is necessary that the act should have been done by one who in fact was acting as an agent, but it is not necessary that he should have been understood to be such by the party with whom he was dealing.</p> <p>In deciding that no ground appeared on which it could be held as matter of law that the presiding judge erred in denying a certain motion for a new trial, it was assumed, without deciding, that the discretion in such a case is not unlimited, and that circumstances might arise under which the exercise of the discretion could be revised, although the general rule is that it is not subject to revision on exception or appeal.</p>

<p>Tort by one woman against another for criminal "conversation with the plaintiff’s husband and consequent loss by the plaintiff of his society. Writ dated February 17, 1899.</p> <p>In the Superior Court the executor under the will of the defendant, who had been cited in and appeared specially, suggested the death of the defendant since the bringing of the action, and moved that the action be dismissed. The motion was heard by Braley, J., who granted the motion and made an order that the action be dismissed; and the plaintiff alleged exceptions.</p>

<p> Certiorari. Assessments. </p> <p>A writ of certiorari can issue only to correct errors of law apparent on the face of the record when properly extended. A respondent may be allowed to show hy matter outside the record that justice requires the refusal of the writ, and if he does so the petitioner may reply to such extraneous facts, but he can do no more.</p> <p>On a petition for a writ of certiorari directed to the aldermen of a city to quash assessments for street watering under St. 1897, c. 419, § 2, an allegation in the answer of the respondents, that they based their assessment upon a determination that it was less than the cost and less than the benefit conferred, cannot he controverted, and the fact that the answer goes on to allege facts justifying the judgment of the respondents does not make admissible evidence on the part of the petitioner to vary the record, the judgment of the board being conclusive except so far as the record may disclose that it was beyond their power or involved error of law.</p>

<p>Evidence, Admission by silence. Practice, Civil, Exceptions.</p> <p>In an action for being knocked down and run over by a pair of horses of the defendant in charge of a driver in his employ, a police officer may be allowed to testify, that after the accident he told the defendant that the driver had said to him that one of the horses was vicious and had run away before. The defendant fairly might be presumed to know whether the horse was vicious and if he suffered the statement to go uncontradicted the jury would be justified in treating his silence as an admission of what was said.</p> <p>After a conversation a part of which is admissible has been given in evidence, an exception will not lie to the admission of the conversation as a whole. If the other part of the conversation is inadmissible, the objecting party must ask to have that part of it stricken out.</p>

<p> Executor. Pledge. </p> <p>An executor has power to pledge the property of the estate in his charge, and if he unlawfully applies the proceeds to his own use this does not affect the rights of a bona fide pledgee.</p> <p>If an executor borrows money from a bank pledging property of the estate in his charge to secure it and the money is placed to the credit of that estate, his drawing out the money by a check payable to his own order gives no notice to the bank of an intent to misapply the fund.</p>

<p>Two PETITIONS, filed April 1, 1895, and June 30, 1890, for the assessment of damages for land and flats including a wharf and berth for vessels, taken in behalf of the Commonwealth by the metropolitan sewerage commissioners under St. 1889, c. 439, and St. 1890, c. 270, on June 24, 1893, and July 13, 1895, and for damage to the petitioners’ remaining land not taken.</p> <p>The petitioners were the same or in the same interest in both cases, the second petition relating to the taking of an additional parcel of land and flats adjoining the first taking.</p> <p>At the trial in the Superior Court before Richardson, J., the jury returned verdicts for the petitioners, upon the first petition in the sum of $24,065.64 and upon the second petition in the sum of $8,021.27 ; and the respondent alleged exceptions.</p>

<p>Mortgage, Of real estate. Equity Jurisdiction. Equity Pleading and Practice, Master’s report.</p> <p>The performance of the condition of a mortgage by payment before maturity leaves the mortgagee with no estate in the premises, and the mortgagor without any assignment or discharge is in of his old estate.</p> <p>One who, knowing that a mortgage has been paid before its maturity, takes the satisfied mortgage from the mortgagor as security for a new debt, whatever may be his equitable rights as against th.e mortgagor, has no right to maintain a bill to redeem or to restrain foreclosure against the holder for value of a prior mortgage given by the same mortgagor upon the same property.</p> <p>When a master, directed to hear two cases together, embodies in his report in one case facts and findings which relate to the other, this furnishes no ground for an exception, but the case in hand is to be decided upon such facts stated in the report as properly pertain to it.</p>

<p>Equity Pleading and Practice, Amendment.</p> <p>A plaintiff in equity after a master has filed his report may be allowed to amend his bill in any manner that will enable him to maintain it for the cause for which it was brought. Such an amendment properly may be allowed where the bill originally sought to restrain the foreclosure of a mortgage of personal property and to redeem from the mortgage, and by agreement of parties the property was sold while the case was pending.</p>

<p>Landlord and Tenant, Assent to assignment. Practice, Civil, Exceptions. Equity Jurisdiction, Fraud. Waiver.</p> <p>In a suit in equity founded on an alleged false and fraudulent representation of the defendant, that he would procure the consent of his lessor to an assignment of his lease to the plaintiff, a letter from the lessor to the defendant contained the following: “ In regard to your selling out the lease, etc., I hardly know what to say. I think that a party who could not pay you when purchasing your furniture would hardly be a good tenant for me. I hope that you will decide to remain for a year. If you should sell out I should expect that it would be to a good, reliable party.” The defendant excepted to the finding of a master that, the letter contained “ no positive promise to accept even a responsible tenant.” Held, that the finding was right; that the letter, at most, meant that the writer was considering the matter, and might consent to a transfer if the tenant was satisfactory, but was not ready to make and did not make any positive agreement to do so. Held, also, that a refusal by the master to find that the plaintiff was a responsible party, would not sustain an exception, as under the above interpretation of the lessor’s letter it was immaterial whether the plaintiff was responsible.</p> <p>In a suit in equity for the cancellation of a mortgage of furniture and carpets in a boarding and lodging house, on the ground that the mortgage was given to pay a balance due for the furniture and carpets and for the good will of the defendant, the purchase having been induced by the false and fraudulent representations of the defendant that he would procure the consent in writing of his lessor to an assignment of his lease to the plaintiff, it appeared, that the defendant failed to procure such consent, and the defendant’s lessor brought an ejectment suit against the plaintiff, and that thereafter the plaintiff applied to the defendant for leave to remove the mortgaged property from the premises and the defendant consented to such removal. The mortgage contained a clause prohibiting removal of the property without the consent of the mortgagee. Held, that it could not be said, as matter of law, that the action of the plaintiff, in applying for the defendant’s consent to the removal, constituted a ratification of the purchase or a waiver of the false and fraudulent representations. It further appeared, in the same suit, that the defendant was notified to take upon himself the defence of the ejectment suit but did not do so, and that the owner of the house paid the plaintiff a sum of money to secure his removal by a certain day. It did not appear that this was not before final judgment could have been obtained and execution issued, and it did not appear that there was any good defence to the ejectment suit. The defendant contended, that the plaintiff had yielded possession for a valuable consideration. Held, that as the plaintiff ultimately would have been obliged to vacate, he was not to be prejudiced because he made the best terms he could.</p>

<p>Equity Pleading and Practice, Master’s report. Partnership.</p> <p>In a suit for an accounting between partners, a motion was made to recommit a master’s report to the master, directing him to make specific findings upon twelve questions concerning matters which were considered or might have been considered in making up the account. The original rule to the master, which was not appealed from, did not require such findings. The report was long and elaborate and stated very fully the considerations on which the master’s decision was founded. The motion was denied by the judge. Held,, that his discretion was exercised rightly.</p> <p>In a suit for an accounting between partners, it appeared, that when the partnership was formed the defendant, a coal dealer, turned over his stock on hand without any inventory or ascertainment of its value to the partnership which thenceforth carried on the same business. The plaintiff, the defendant and several teamsters of the firm gave their estimates of the amount of coal on hand when the firm began business, which differed widely. The master, finding this evidence unsatisfactory, made calculations based on the amount of coal bought and sold by the firm from time to time, as it was shown by their books, and the amount on hand at the close of business. There was also before the master the testimony of an expert accountant employed by the plaintiff to examine the books and exhibits. The master found the accountant’s computations and estimate to be correct. Held, that no error appeared, and that the court could not say that the master was wrong in relying on the computations of the expert founded on the books and vouchers.</p>

<p> Estoppel. Conversion. </p> <p>If a wholesale dealer lets a piano upon a written lease to a retail dealer in musical instruments, who sells it without authority to one having no notice of the lease, the lessor is not estopped from asserting his title and maintaining tort against the purchaser for the conversion.</p>

Bill in equity, filed November 17, 1899, and amended January 1 and May 10, 1900, by the widow of George E. Leonard, late of Foxborough, to set aside a conveyance of real estate made by her late husband to James W. Leonard, his nephew since deceased, and gifts of personal property made to the defendant then the wife and now the widow of James.

<p>Way. Certiorari. Assessments, For benefits. Revere. Words, “Highway.”</p> <p>In St. 1896, c. 417, authorizing the town of Revere to elect a board of survey to have charge of the location of highways, the word “ highway ” includes a town way.</p> <p>On a petition for a writ of certiorari against the selectmen of a town to quash the assessment of a betterment for the laying out of a way, an answer of the selectmen, stating facts which do not appear by the vote of assessment and which if true show a full compliance with the requirements of Pub. Sts. c. 51, § 1, is conclusive, and cannot be contradicted by evidence.</p> <p>If on a petition for a writ of certiorari against the selectmen of a town, to quash a betterment assessment for laying out a highway, the answer of the selectmen alleges that the work of laying out and grading the way had been completed at the time of the assessment, evidence cannot be received to contradict this statement.</p> <p>Under the provisions of St. 1896, c. 417, authorizing the town of Revere to elect a board of survey, a town way is not laid out until the town has voted that the way as laid out by the board of survey be accepted as a public town way, and the two years within which a betterment must be assessed under Pub. Sts. c. 51, § 1, run from the date of the vote of acceptance and not from the date of the previous order of the board of survey.</p> <p>On a petition for a writ of certiorari against the selectmen of a town to quash a betterment assessment for the laying out of a highway, the petitioner cannot introduce evidence of an oral agreement of the selectmen, in awarding damages for land of the petitioner taken for the way, that betterments were not to be assessed on his remaining land, as such agreements are required to be in writing by St. 1884, c. 226. R. L. c. 50, § 11.</p> <p>On a petition for a writ of certiorari against the selectmen of a town to quash a betterment assessment for the laying out of a highway, evidence of want of good faith on the part of the selectmen is not admissible.</p>

<p>Action, Survival. Abatement. Limitations, Statute of, Special. Practice, Civil, Amendment. Receiver.</p> <p>Two partners were sued jointly in an action of contract for goods sold. One died, his death was suggested, and his administrator appeared to defend the suit. Three years later the administrator moved to withdraw his appearance. While this motion was pending the plaintiff was allowed to amend by discontinuing against the surviving partner. Immediately thereafter, the administrator moved that the action be dismissed. Both his motions were denied. The administrator appealed, and asked for a ruling, that the action abated against his intestate and could not be prosecuted against the estate. The ruling was refused. Held, that the refusal was right. Pub. Sts. c. 136, § 8, preserved the liability of the intestate’s estate, and by the amendment allowed the suit begun as joint had become several. The administrator by appearing merely brought himself before the court in a matter in which the estate already was liable and thus laid the foundation for an amendment which put the case into its proper form. Held, also, that the fact that the discontinuance against the surviving partner was after the special statute of limitations would have run to bar the action against the administrator had he not appeared, was immaterial.</p> <p>If an action for goods sold is brought in the name of a corporation when it should have been brought in the name of a receiver of its property, the defect can be cured by amendment.</p>

<p>Contract for work done by the plaintiff for the defendant for twelve years from August, 1888, to August, 1900, at $2 per week. Writ dated February 26, 1901.</p> <p>At the trial in the Superior Court before Hoplcins, J., it appeared, that the plaintiff was an unmarried woman and a sister of the defendant, who was a wool sorter by trade. The plaintiff offered evidence tending to show, that the defendant’s wife died in 1885, leaving him with four children, the oldest being then ten years of age; that the defendant requested the plaintiff to come and live with him, to keep his house and take care of his children, and agreed to pay her therefor $2 per week; that she went as requested and worked for him and he paid her in full at the promised rate for two and one half years, until in 1888 an illness incapacitated him for further labor at his trade; that she continued to live in his house and work for him until she left, in August, 1900, and that no further payments were made to her except one of $5, in December, 1900; that after the illness of the defendant she w7ent out to work, sometimes two, sometimes three, and sometimes four days a week, and that she used the money so earned for the support of the defendant and his children; that on the days when she went out to work, she did the work of the defendant’s household before and after returning from work outside.</p> <p>There was evidence offered by the defendant tending to show, that after the death of his wife, in 1885, his sister, the plaintiff, said she wanted a home and did not want his children to have a stepmother; that he engaged her as she testified, and paid her in full up to the time he was taken sick with hemorrhages from, the lungs, which incapacitated him for work at his trade ; that •he had no income from which to pay the plaintiff after he ceased to work at his trade, except the rent of his houses, and that she knew of that fact; that he never paid her anything after that and that he did not pay her $5 in December, 1900 ; that several years after he was taken sick the plaintiff was angry with him and he sent his son with $8 to her which she refused to take; that from the time of his sickness to the time she left his house in August, 1900, she never asked or demanded of him any sum of money for her work; that during all that time she occupied exclusively and kept the key of a room in his house; that during all that time she went out at her pleasure to work for others, sometimes during the spring and fall, the whole week at a time, at other times of the year not so often, but doing all the work she could get, sometimes three, four or five days in the week, going after breakfast in the early morning and returning according to where she was working, sometimes at eight o’clock at night; that he had nothing to do about this work or her earnings ; that after his sickness, in 1888, he was about the house and able, with the assistance of his children, to do all that was necessary to be done, and that his sister, the plaintiff, did only that which she saw fit to do.</p> <p>The judge ruled that the plaintiff could not recover for any services rendered more than six years before the date of the writ, and among other instructions, to which no exception was taken, instructed the jury that, in an action for services rendered the plaintiff could not recover unless the jury found that the person rendering the services expected to be paid for them, and believed that the person receiving them knew that payment was expected for them, and also, that the person receiving the services expected to pay for them and believed that the person rendering the services expected to have pay for them.</p> <p>The jury found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort by a porter and shipper employed in the storeroom of the defendants for injuries caused by the fall of a steel bar through the alleged negligence of one Stimpson a superintendent of the defendants. Writ dated August 4, 1900.</p> <p>In the Superior Court Sherman, J. ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Tort for the alleged conversion of twenty shares of the capital stock of the Continental Brewing Company against Charles A. King and that corporation. Writ dated July 3, 1899.</p> <p>In the Superior Court Hophins, J. ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p> <p>The face of the certificate for the shares in question contained the following: “ This Certifies that William A. Holmes, of Boston, Mass., is the owner of twenty (20) Shares of the capital stock of the Continental Brewing Company, and said shares are transferable only in person, or by attorney duly constituted, on the books of the Company on the surrender of this certificate, duly executed, and are only transferable in accordance with the By-Laws of the Company which are hereon indorsed, and with such other By-Laws rules and regulations as the stockholders shall for such purpose ordain and publish.”</p> <p>On the back of the certificate were the following extracts from by-laws:</p> <p>“ Section 2. No transfer of any stock of this Corporation shall be of any effect as concerns the Corporation until the certificate therefor has been duly executed and surrendered for cancellation, and the transfer has been registered upon the books of the Company.”</p> <p>“ Section 4. No stockholder shall sell or otherwise dispose of the whole or any part of his stock unless he shall, at least thirty days previous thereto, have offered in writing to sell the same to the Board of Directors upon the same terms and for the same price as he shall have been offered by his prospective purchaser, and such offer to said directors shall not have been accepted within that period.</p> <p>“ In case any stock so offered under this provision of this ByLaw is accepted by the Board of Directors, said Board may sell said stock, either in whole or in part, for a price not less than the market value of said stock, to any stockholder, or to any persons engaged in the business of bottling or of vending beer or ale or other malt beverage, or dealing in malt or malt extracts. If said offer to said directors shall not have been accepted within said period of thirty days, no sale by said stockholder at a less price than the price mentioned in his said offer to the directors shall be valid, and no transfer shall in such case be made by the Company.”</p>

<p>Tort by a workman in the defendant’s bleachery for injuries received while tightening certain cylinders called binders connected with a washing machine operated by the plaintiff, by reason of the negligence of one Royer, the defendant’s superintendent, in starting the plaintiff’s machine. Writ dated June 18, 1900.</p> <p>In the Superior Court before Hardy, J., the defendant requested the judge to rule, that there was no act of Royer as superintendent which caused the injury or contributed to it, and that the act of Royer in starting the machine was the act of a fellow servant and not an act of superintendence under the statute.</p> <p>The judge refused to give these and other rulings requested by the defendant. The jury returned a verdict for the plaintiff in the sum of $4,000 ; and the defendant alleged exceptions.</p>

<p> Incumbrance. Boston. Way. </p> <p>Under St. 1891, c. 323, providing for a board of survey in the city of Boston, and acts in amendment thereof, no incumbrance is created on land over which it is proposed to lay out a street until a plan is filed under the provisions of that act.</p>

<p>Contract by a real estate broker to recover a commission. Writ dated July 16, 1900.</p> <p>At the trial in the Superior Court before Stevens, J., the jury returned a verdict for the plaintiff in the sum of §218.94; and the defendant alleged exceptions.</p>

<p>Practice, Civil, Exceptions. Evidence, Materiality, Conversations between husband and wife.</p> <p>The exclusion of a question is no ground for exception if there is nothing to show what the answer would have been, or if the testimony which it was intended to bring out was in fact brought out by the next question.</p> <p>In an action by brokers against a married woman for a balance alleged to be due on account of the purchase and sale by them for her of certain stocks, where the defence is that the transactions were those not of the defendant but of her husband, the defendant cannot be asked whether the purchase of any of the stocks was in accordance with her wishes, since her intention is not in issue and therefore her undisclosed wishes are immaterial.</p> <p>In an action by brokers against a married woman for a balance alleged to be due on account of the purchase and sale by them for her of certain stocks, the defence was that the transactions were those not of the defendant but of her husband. The defendant was allowed to introduce evidence that she had authorized no one other than her husband to purchase stocks for her. She then wished to show, that, while she had had conversations with her husband in regard to the stocks, she had not authorized him to purchase them for her, and that he was not her agent. There was no offer to show that any third person was present at any conversation between her and her husband. The evidence was excluded. Held, that the exclusion was right. The effect of allowing the evidence would have been to enable the defendant to give either her construction of or the result of conversations between her and her husband, inadmissible under Pub. Sts. c. 169, § 18, cl. 1. R. L. c. 175, § 20, cl. 1.</p>

<p> Partition. Joint Tenants and Tenants in Common. Estoppel. </p> <p>The parties to a partition agreed that the commissioners might make the partition in the manner set forth in their report and requested them to do so, and agreed that it was the most advantageous division of the premises, but did not agree that no other division was possible. In determining which of the two larger portions should be allotted to each of two of the parties, each of whom had made a bid of the amount that he was willing to pay as owelty, the commissioners allotted the larger portion to the one making the higher bid, and ordered him to make certain payments to the other parties. Whereupon the party who had made the lower bid objected, denying the right of the commissioners to find that any owelty should be paid by one of the tenants in common to any other. Held, that by requesting the commissioners to make the partition and by agreeing that it was the most advantageous one that could be made, the lower bidder had waived his right to insist on formal findings by the commissioners that a more equal division was not possible or that the part set off to the higher bidder was not capable of division without great inconvenience to the owners, and that by taking part without objection in the method adopted by the commissioners for the purpose of ascertaining the sum to be paid as owelty he lost any right that he otherwise might have had to object to it.</p>

<p>Contract for $2,260, lent to a partnership of which the defendant was a member. Writ dated February 13, 1897.</p> <p>At the trial in the Superior Court before Lawton, J., the jury returned a verdict for the plaintiff; arid the defendant alleged exceptions.</p>

<p>Petition, filed June 7, 1901, for a writ of certiorari directed to the metropolitan park commissioners, to quash certain betterment assessments for the locating and laying out of a section of Revere Beach Parkway from Broadway to the Everett line.</p> <p>The case came on to be heard before Barker, J., who, at the request of the parties, reserved it for the determination of the full court upon the pleadings and the statement of facts agreed, so far as competent; such decree to be entered as justice might require.</p>

<p>Petition, filed August 27,1901, for registration of title to certain land in Falmouth.</p> <p>At the hearing in the Court of Registration before Davis, J., it appeared, that the petitioners claimed under Lorenzo Eldred who died on October 18, 1888, devising to them all his real estate, and under a deed procured by the petitioners from Mary A. Eldred and Jennie L. Minor, respectively the widow and so called adopted daughter of Frederick A. Eldred, brother of Lorenzo. Both Lorenzo and Frederick were the sons of William Eldred.</p> <p>One undivided half of the title to the premises claimed by the petitioners was, at the time of his death, in William Eldred, who died at Falmouth, testate, between November, 1859, and March, 1860, leaving as his heirs at law four sons, one daughter, and the children of a deceased daughter. The title to the other undivided half was, at the time of William’s death, in his son, Lorenzo.</p> <p>After the death of Frederick, Lorenzo procured deeds to himself from all the living heirs of his father William. These deeds were all in the same form of limited warranty, and the description in each was as follows: “ All my right, title, and interest to certain real estate situate in Falmouth aforesaid, as contained in the last will and testament of William Eldred, late of Falmouth, made and signed the 18th day of November, 1859; it being the eighth and last item of that will, which reads as follows : 4 8th. I give and bequeath to my son Lorenzo Eldred the use, income, and improvement of all my real estate during his natural life, and at his decease, to my children and to the issue of any deceased child.’ ” The clause was correctly quoted from the will.</p> <p>Frederick died on March 14, 1874, testate, leaving a widow, Mary A. Eldred, and a so called adopted daughter,-Jennie L. Minor, who were named as devisees in his will, proved at Worcester on April 7, 1874.</p> <p>On July 3, 1893, the petitioners procured from Mary A. Eldred and Jennie L. Minor a deed in which exactly the same description was used as in the above-mentioned deeds to Lorenzo, there being added at the end of the description, following the quotation from the will of William Eldred, “Our interest, if any, being derived from the will of Frederick A. Eldred, late of Worcester, Mass., intending hereby to release all our interest in any real estate in said Falmouth in which said William Eldred had any interest at the time of his death.”</p> <p>On November 12, 1897, the petitioners procured a further deed from Mary A. Eldred, executrix under the will of Frederick A. Eldred, which the court found it unnecessary to pass upon. =</p> <p>Among other rulings, which the decision of the court has made immaterial, the judge ruled as follows: That the several deeds to Lorenzo Eldred from the heirs of William Eldred were sufficient to convey, and did convey, to Lorenzo any and all interest owned by the several grantors in the locus, whether acquired by inheritance from, or as purchasers by devise under the wills of both William Eldred and Frederick A. Eldred.</p> <p>The judge ordered a decree for the petitioners; and the respondents alleged exceptions.</p>

<p> Probate Court. Jurisdiction. Compromise. </p> <p>The Probate Court has no jurisdiction to confirm agreements of compromise under Pub. Sts. c. 142, § 14, and a decree of that court purporting to confirm such an agreement is void.</p> <p>In a suit in equity to enforce a contract to purchase certain land from the plaintiff, where the only defence was that the plaintiff could not give a good title, it appeared, that tlie plaintiff claimed under a deed from the executors under a certain will and that the will had been allowed by the Probate Court in pursuance of an agreement of compromise under Pub. Sts. c. 142, § 14, which had been confirmed by another decree of the same Probate Court immediately preceding. The decree allowing the will provided that the will was to be administered in accordance with the agreement of compromise confirmed by the preceding decree. The will gave the executors power to sell real estate. Held, that the plaintiff had no title because the Probate Court had no jurisdiction to confirm an agreement of compromise under Pub. Sts. c. 142, § 14; and the bill was dismissed.</p>

<p>Vineyard Grove Company. Statute, Construction. Easement, Dedication, Adverse possession.</p> <p>St. 1870, c. 110, creating the Vineyard Grove Company and authorizing it to hold land, and with the approval of the harbor commissioners to construct and maintain a wharf or wharves in tide water, and St. 1896, c. 299, confirming the right of that company to hold real estate theretofore conveyed to it and to maintain structures in tide water, do not enlarge the rights of that company as against the public and permit it to maintain a structure in violation of a dedication to the public made by its predecessor in title. Still less can a license granted by the harbor and land commissioners in pursuance of those statutes have that effect, the license containing a provision that nothing in it “ shall be so construed as to impair the legal rights of any person.”</p> <p>The right to have land unbuilt upon within reasonable limits for purposes of light, air and prospect can be acquired by dedication.</p> <p>If the right of the public acquired by dedication to use a certain beach and to have the view from the bluffs above it kept clear, could be barred by adverse possession, the maintenance of a building on the bluff called a pavilion or pagoda, and of bathing houses and a wharf on the beach below, all contemplated in the plan of dedication, not substantially interfering with the tract or the view from above it and naturally incidental to the public use, does not show an intent to exclude the public from any portion of the tract which the structures do not occupy, and the existence of the structures, however long maintained, could not be made the foundation of a right more extensive than over the ground actually occupied by them.</p>

<p> Municipal Corporations. Lowell. </p> <p>Under St. 1896, c. 416, the city council of Lowell has no power to make contracts for the city, but it has the power to make appropriations, and by § 8 it is provided, that “ no liability shall be incurred . . . until the city council has duly voted an appropriation sufficient to meet such expenditure or liability,” and that no sum “ appropriated for a specific purpose ” shall be expended for any other purpose. Under § 6 the hoard of health as the head of a department have authority to make contracts for that department. The city council voted, to borrow $25,000 for the purchase and erection of a “ Smith Improved Garbage Cremator,” and appropriated the sum named for that purpose, to be expended under the direction of the mayor and the board of health. The record of a meeting of the board of health showed a vote to ask the Smith company for plans and specifications and a refusal by a majority of the board to ask for bids from other companies because after the action of the city council it would be useless. Later, at a regular meeting of the board, it was voted, that the record be amended by striking out the statement of the reason for the refusal, and by stating tlie true reason, that the majority of the board after investigation of the merits of the rival cremators, decided that the best interest of the city would be served by the selection of the Smith Cremator. On a petition of ten taxable inhabitants to enjoin the expenditure, it was held, that the appropriation by the city council was in lawful form, and that the court could not go behind the amended record of the board of health, and, at any rate, that the adoption of the amendment declared by necessary implication that in the present opinion of the board it was desirable to purchase the Smith Cremator on grounds independent of the vote of the city council, therefore, that the purchase was authorized by the unbiassed action of the board having authority to make it and the bill must be dismissed.</p>

<p>Devise and Legacy, Construction.</p> <p>A will contained the following bequest: “ I give and bequeath to my brother Stephen Salisbury the sum of one thousand dollars, in trust, for my nephew Samuel Salisbury, to invest the same and pay the interest of the same to said Samuel or expend the same for his benefit as said trustee may deem best, and with full power to expend any part or the whole of the principal sum for the benefit of said Samuel, said trustee to be accountable to no one, for the administration of the trust, and not to give bonds.” This was preceded and followed in the will by a number of simple absolute bequests of sums of money. In the rest of the will this $1,000 was not mentioned again. In the clauses relating to real estate, equitable estates for life with remainders in fee were created by apt and appropriate language. The will concluded with a residuary clause. Held, that Samuel Salisbury was the sole equitable owner of the fund subject to the directions as to its management during his life, and that on his death it went to the representative of his estate and not to the residuary legatee.</p>

<p>Devise and Legacy, Construction.</p> <p>A testatrix began her will by declaring her intention of disposing of her whole property. She then created a life estate in her whole property, divided the remainder into two equal parts, and fully provided for the final disposition of the first part. She then provided, that the other half should be equally divided among six nephews and nieces named, and added “ the sum I bequeath to William Salisbury and the sum I bequeath to Sam Salisbury I wish put in trust to Elihu Chauncey and they should have the income only.” The persons thus named were two of the six. Held, that the bequest to “ Sam Salisbury ” was an absolute gift, subject to the provision that he should be entitled only to the income during his life, and that upon his death the fund went to the administrator of his estate.</p>

<p>Insurance, Foreign companies.</p> <p>The prohibition contained in R. L. c. 118, § 20, that “no insurance company shall insure in a single risk a larger amount than one tenth of its net assets,” does not apply to insurance made by a foreign company outside of this Commonwealth,</p>

<p>Equity Jurisdiction. Agency. Evidence, Conversations between husband and wife. Deed, Delivery. Alteration of Instruments.</p> <p>Semble, that one seeking equitable relief on a charge of fraud must maintain his case on that ground or lose it.</p> <p>Testimony by a wife that her husband acted by her authority is not necessarily made incompetent by her statement that her conversations with him were private.</p> <p>Where a loan is to be made upon a mortgage, and a time is appointed for passing the papers, and the mortgage and note are handed to the mortgagee’s lawyer and remain in his custody for a day before the time fixed for passing the papers, there is no delivery in the technical sense until that time arrives, and an alteration in the mortgage note made before the papers are passed is made before delivery.</p>

<p>Tort by a passenger for injuries caused by the alleged negligence of. the defendant whereby the plaintiff was thrown from the step of one of its cars. Writ dated June 22, 1900.</p> <p>At the trial in the Superior Court Bell, J. refused to rule, at the request of the defendant, that on all the evidence the plaintiff was not entitled to recover. This was the request mentioned by the court as the first, the exceptions to the refusal to give five others having been waived. The statement in writing of the witness Bryant described by the court was offered in evidence for the purpose of contradicting his previous testimony. Bryant was a witness for the plaintiff and the paper was offered and excluded upon his cross-examination.</p> <p>The jury returned a verdict for the plaintiff in the sum of $4,000, of which the plaintiff on requirement of the judge after-wards remitted $1,000. The defendant alleged exceptions.</p>

<p>Stock Exchange.. Assignment. Contract, Construction. Equity Jurisdiction.</p> <p>A seat in the Boston stock exchange, which can be transferred under certain restrictions and on the member’s death can be sold by a committee and the balance of the proceeds given to the legal representatives of the deceased, is property on which a lien can be enforced in equity.</p> <p>An assignment to a bank of certain property, executed by W. and his wife, to secure their joint and several note for $4,500 contained the words “ This assignment is voluntary on our part and shall remain in full force until all the indebtedness of said W. to the said bank shall have been paid." Later the note was renewed by a like joint and several note for $5,000 including another loan of $500, and upon the new note was a statement that it was secured by the property assigned. Between the making of the original note and the renewal W. borrowed an additional $2,300 from the same bank, giving his personal note with the indorsement of a third person. After a part payment on this note, a like note for $2,000 similarly indorsed was given for the balance due. Neither of the last named notes mentioned the assignment. Held, that by the language used in the assignment it was not intended to give the bank a lien for all possible future indebtedness, and that the note for $2,000 was not entitled to share in the security of the assignment.</p> <p>Where a seat in the Boston stock exchange was assigned to a bank by a member to secure his note, and after his death the seat was sold under the rules of the exchange and the balance of the proceeds paid to the administrator of his estate, notice of the assignment having been given by the bank both to the exchange and the administrator, it was held, that the bank’s lien could be enforced by a suit in equity against the administrator who held the proceeds of the sale subject to the lien, and, having in his hands more than enough to discharge it, he could be ordered to pay the required sum to the plaintiff.</p> <p>One having a lien on certain property of a person deceased insolvent created by an assignment securing a note of the deceased, does not lose his lien by failing to sue on the note or to prove it before the commissioners within the two years fixed by the special statute of limitations, or by an attempt afterwards abandoned to enforce his claim on the note in equity under Pub. Sts. c. 136, § 10. Neither the debt nor the lien are affected by these things, and, if the assignee has been guilty of no loches in insisting on his lien, he can enforce it in equity against the property, or against its proceeds in the hands of one holding them with notice of the lien.</p>

<p>Appeal from a decree of the Probate Court of the County of Essex upon the allowance of the account of a guardian.</p> <p>The case was heard on appeal by a single justice of this court. It appeared, that by the guardian’s account he charged himself with deposits of $2,000 in two savings banks and the interest of $1,208.98 paid by those banks, making a total of $3,208.98. He credited himself with $2,452 for board, clothes and education, leaving a balance at the ward’s majority of $756.98.</p> <p>It appeared, that the guardian had drawn from the banks $1,425, of which $1,000 was lent and lost, its collection being barred by the statute of limitations. The guardian was a currier by trade, paid by the week when he could get work. The ward was his son, who when about four years old lost a foot by a railroad accident, for which he received the $2,000 that created the fund.</p> <p>The Probate Court had made a decree, that the guardian be charged with $48, as interest on an uninvested balance in his hands for several years, that the item of $1,092 for seven years’ board be allowed for $710 only, and that the account so changed be allowed, leaving the accountant charged with a balance of $1,178.98. The ward appealed.</p> <p>The single justice made a decree, that the decree of the Probate Court be amended by crediting the appellant with the sum of $63.50 for money earned by him and paid to the appellee during the guardianship, that the decree thus amended be affirmed, and the case be remanded to the Probate Court for further proceedings. The ward appealed.</p>

Petition, filed June 21, 1901, in the Probate Court for the County of Suffolk for the removal of Henry K. Wirth as administrator with the will annexed of the estate of Jacob Wirth. The respondent demurred to the petition. In the Probate Court McKim, J. made the following decree: “Demurrer sustained, but the petitioners may file specifications upon the allegations affecting the conduct of the administrator since his appointment.” The petitioners appealed.

<p>Contract by tenants against their landlord for an alleged breach of an oral agreement to make certain repairs upon the premises. Writ dated June 14, 1901.</p> <p>At the trial in the Superior Court before Hardy, J., the jury returned a verdict for the plaintiffs in the sum of $1,500; and the defendant alleged exceptions.</p> <p>The ruling requested at the close of the case referred to by the court, and held to have been given in substance, was as follows: “ If there was no specific agreement between the parties entered into for specific inside repairs at the time the leasing or contract of lease was made, the presumption of law is that the plaintiffs took the premises in the condition in which they then were.”</p>

Indictment for the murder of one George E. Bailey, returned January 25,1901. The decision of the court overruling the exceptions in this case is reported in 180 Mass. 492.

<p>Bill in equity, filed January 18, 1901, for an accounting between the plaintiff and the defendant, former partners, to determine their respective rights under an agreement by which the defendant sold out all his half interest in the Hume Carriage Company to the plaintiff at the prices named in a certain invoice.</p> <p>The defendant filed an answer containing a demurrer, averring, that there was no equity in the plaintiff’s bill, and that all matters therein averred were matters of common law.</p> <p>In the Superior Court Maynard, J. made a decree sustaining the demurrer and dismissing the bill.</p> <p>The bill alleged, that the plaintiff and the defendant had for ten years carried on the business of manufacturing carriages at Amesbury, as copartners, doing business under the name of the Hume Carriage Company, and that on October 6, 1898, the defendant sold out to the plaintiff all his interest in the firm as shown by an invoice of September 1, 1898. The contract was addressed to the plaintiff, signed by the defendant, and read, as follows:</p> <p>“ I will sell you all my interest — same being one undivided one half part — in stock and finished and unfinished carriages of the Hume Carriage Co. at invoice price taken Sept. 1st, 1898, less 5 per cent on finished carriages, together with my good will giving you a right to continue business under the firm name of Hume Carriage Co., if wished.</p> <p>“ You to collect all outstanding bills of every kind, and in case of any failures you will deduct my proportional part, or one half of the loss on same from last payment, I to be notified at the time the amount of "each loss, and in case last payment is insufficient to cover loss, I agree to pay you an amount sufficient therefor.</p> <p>“ The amount I have overdrawn in excess to Wm. M. Hume shall be deducted by you in making payment, also the amount of Geo.-T. Walker’s indebtedness — with interest on the latter — to be deducted.</p> <p>After the aforesaid amounts are deducted, leaving the amount due me as per invoice, $29,300.50.</p> <p>“ Payments to be made as follows :</p> <p>“ One-fifth of Geo. Walker’s net interest in said firm to be paid said Walker in cash, less $1,000.00, which shall be applied to a $4,000.00 note held against said Walker by James Hume. One-fifth to be paid by 4 mos. note, without interest less $1,000.00 to be paid or applied to the said $4,000.00 note held by James Hume. One-fifth to be paid by a 5 mos. note, without interest less $1,000.00 to be paid or applied to $4,000.00 note held by James Hume. One-fifth to be paid by a 6 mos. note, without interest less $1,000.00 to be applied to said $4,000.00 note held by James Hume, and interest due on said note to date. The balance shall remain an open account, without interest, for one year, and after deducting the afore-mentioned losses you to pay the balance in cash.</p> <p>“ The books and accounts to be and remain in possession of Wm. M. Hume.”</p> <p>The invoice of September 1, 1898, named in the contract contained in the list of assets the item “ Bills owing us, $54,943.58.” The bill alleged, that these bills were not only for carriages actually sold, but also for carriages that had been consigned for sale, and out of said $54,943.58 bills owing the Hume Carriage Company, $38,253.94 were bills thus owing for carriages that had been consigned for sale; and that such consignees were properly considered as the purchasers, subject only to the understanding that they were neither the owners of the carriages consigned nor liable to pay for them until they had succeeded in finding a purchaser, inasmuch as the consignees had a right to sell as principals in their own name, to such parties, at such prices, and on such terms as they saw fit, and the carriages so consigned were invoiced to such consignees at fixed prices, and on a sale by the consignee the consignee himself became the purchaser and principal debtor for the carriages so consigned; that accordingly in the agreement and sale of October 6, 1898, these bills were treated as bills owing the company.; that if the. carriages that had thus been consigned had been treated as carriages of the Hume Carriage Company, and the five per cent reduction allowed thereon, the amount due the defendant would and should have been several thousand dollars less than agreed; and if the carriages thus consigned had been treated as carriages of the Hume Carriage Company, and included at practically cost price, as were all carriages included as such, the amount due the defendant would and should have been many thousands of dollars less ; that they were not so treated, and no attempt was made either on September 1, or on October 6, to ascertain what carriages so consigned had or had not actually been sold by the consignees respectively; that on the contrary, for the purposes of the invoice of September 1, and of the agreement and sale of October 6, all the carriages so consigned were treated as in effect sold and the whole account in every instance as an outstanding bill; and that such treatment was in effect a part of the agreement between the defendant and the plaintiff, and alleged that the defendant was estopped to deny the validity of such treatment.</p> <p>The bill further alleged, that on July 17, 1899, one Gilbert, doing business under the firm name and style of the Gilbert Carriage Company, failed, owing a comparatively large amount on one of the outstanding bills of the Hume Carriage Company ; that the plaintiff immediately gave the defendant notice of the failure, and afterwards, at the request of the defendant and on the defendant’s agreement to pay half the expense, caused to be replevied certain carriages that had been consigned to the Gilbert Carriage Company for sale and were found in the possession of that company ; that while, under the contract and agreement of October 6,1898, the consignees were treated as purchasers and the accounts as outstanding bills, nevertheless the parties, especially in the provision allowing the last payment to remain an open account without interest for one year as security against losses, took into consideration that the sale to and liability of the consignee was not absolute, but conditional upon his finding a purchaser, and it was not the intention of the parties to change the sale into an absolute sale, or the liability of the consignee into an absolute debt, but rather that the right to replevy the carriages should be preserved in order that the loss might thus be reduced in case of failures; that no provision, however, was made or express understanding had as to how such replevied carriages should be disposed of or the amount of the loss ascertained in case of any such failure and consequent replevin; that hence out of the failure of the Gilbert Carriage Company and the replevin of the carriages there had arisen a complication and controversy which the defendant and the plaintiff had been unable to adjust amicably, and such that the rights and equities of the parties could not be adequately and completely protected and adjusted in an action at law, but only in equity, permitting a sale of the replevied carriages under the order and direction of the court, and the ascertainment of the net loss on the Gilbert Carriage Company-bill, one half of which the defendant agreed to stand.</p> <p>The bill also alleged that, as the plaintiff was informed and believed, the defendant by mistake erroneously stated the amount of the defendant’s net interest in the firm, as shown by the invoice of September 1, 1898, to be $29,300.50, and further failed to take out in any form the five per cent on finished carriages, as agreed; that the plaintiff, being unfamiliar with the figures, and knowing that the defendant was familiar with them, believed the figures to be as stated by the defendant; that it was only recently, and after the making of the payments named, that the plaintiff discovered the mistake, and that the plaintiff had accordingly overpaid the defendant.</p> <p>The bill also alleged, that the defendant had brought an action at law against the plaintiff on the- contract, which action was pending.</p> <p>The bill prayed, (1) for an accounting, (2) that the replevied carriages might be sold under order of the court and the plaintiff from the proceeds reimbursed for the expenses of replevying the carriages and the balance divided, (3) that the defendant might be ordered to return the amount overpaid by the plaintiff by reason of the defendant’s failure to deduct five per cent on finished carriages, (4) that an injunction might be issued to restrain the defendant from further prosecuting his action at law on the contract, and (5) for further relief.</p> <p>The case was argued at the bar in November, 1901, and after-wards was submitted on briefs to all the justices.</p>

<p>Tort, under the statutes named by the court, for the burning of the house and barn and certain personal property of the plaintiff by fire communicated by a locomotive engine of the defendant. Writ dated September 25, 1896.</p> <p>In the Superior Court the case was tried before Dewey, J., without a jury. It appeared, that the plaintiff owned the buildings and that they were burned on June 15, 1895; that the buildings were subject to a mortgage to the Arlington Savings Bank, and were insured against fire in the Middlesex Mutual Fire Insurance Company, by a policy dated September 1,1893, the house for $1,500 and the barn for $1,000, and the insurance was made payable to the savings bank above named in case of loss, to the amount of its claim as mortgagee ; that the loss had been adjusted and payments made by the insurance company, on September 11,1895, to the amount of $1,000 on the barn and $1,375 on the house; and that the plaintiff on August 5, 1895, executed an assignment to the insurance company of all claims and right to recover against the Boston and Maine Railroad or any other person or corporation for his loss by fire, and delivered it to the insurance company on September 11, 1895. ^The policy was in the Massachusetts standard form then prescribed by statute, and contained the following clause: “And whenever the company shall pay any loss, the insured shall assign to it, to the extent of the amount so paid, all rights to recover satisfaction for the loss or damage from any person, town, or other corporation, excepting other insurers; or the insured, if requested, shall prosecute therefor at the charge and for the account of the company.” The cost of insurance premium was $43.75, and there was no expense of recovery. ' This action was brought for the benefit of the insurance company.</p> <p>The defendant asked the judge to rule that, if he found for the plaintiff for damages in burning the house and the barn, the railroad corporation was entitled to the benefit of any insurance upon such property, less the cost of premium and expense of recovery, and that such amount should be deducted from the amount found as damages for such burning of the house and barn. The judge refused to rule as requested, and found for the plaintiff in the sum of $3,859 as follows: for injury or destruction of barn, $1,100; for injury or destruction of house, $1,600; personal property not insured, $450; interest on the above from the time of the fire, June 15,1895, $709. The defendant alleged exceptions, which, after the death of Dewey, J., were allowed by Sherman, J.</p> <p>St. 1895, c. 293, amending Pub. Sts. c. 112, § 214, was approved April 18, 1895, and in § 2 it was provided that the act should take effect upon its passage. Section 1 concludes as follows: “ In case such railroad corporation is held responsible in damages it shall be entitled to the benefit of any insurance effected upon such property by the owner thereof, less the cost of premium and expense of recovery. The money received as insurance shall be deducted from the damages, if recovered before the damages are assessed; if not so recovered the policy of insurance shall be assigned to the corporation held responsible in damages, and such corporation may maintain an action thereon.”</p> <p>The case was argued at the bar in November, 1901, and after-wards was submitted on briefs to all the justices.</p>

<p>Negligence, Employer’s liability.</p> <p>The existence of oil on the floor of a mill, causing an operative to slip and receive an injury when walking through a passageway between two machines, is not evidence of negligence on the part of the mill owner, if there is nothing to show how long the oil had been there or what caused it to be there.</p> <p>There is no duty on the part of a mill owner, to warn a boy between fourteen and fifteen years old, who has worked in the room for two months, as to the danger, • if'any, of using a passageway between the machine on which he works and another machine, or of getting his hand caught in the gears in case he does so.</p>

<p> Trust. </p> <p>A trust, created by will for a granddaughter, providing, that the income shall be paid into her hand, or upon receipts or orders signed by her immediately before the payment, and that the trustees may iu their discretion decline to pay her anything, and apply only so much as they see fit to her maintenance and support, or the education, maintenance or support of her children, and accumulate the balance until after her death, gives the beneficiary no absolute right of control or alienation, and so no interest which can be reached by creditors.</p> <p>In a trust created by a charge upon land, to pay an annuity to a beneficiary, a provision, that the payments shall be made only upon “ receipts or orders therefor signed by her at or immediately before the payment thereon, and not by way of anticipation,” is equivalent to saying that the beneficiary shall have no power to alienate the annuity, and she therefore has no interest in it that can be reached by creditors.</p>

<p> Board of Health. License. Municipal Corporations. </p> <p>St. 1894, c. 491, § 18, providing for the granting of licenses to slaughter houses by the mayor and aldermen of cities and the selectmen of towns, or such" other board of officers as they shall designate, does not take away the power of the board of health of a city under Pub. Sts. c. 80, § 84, to forbid the carrying on of a slaughter house as dangerous to the public health, and the maintenance of a slaughter house so licensed may be prohibited by that board. This power is in no way affected by St. 1897, c. 428, § 2, providing that in towns having a population of more than five thousand, the board of health instead of the selectmen shall have charge of licensing slaughter houses.</p>

<p>Petition, filed November 22,1901, by ten taxable inhabitants of Chelsea under St. 1898, c. 490, for an order restraining the mayor and other officers of that city from raising or expending money or incurring obligations for the purpose of constructing a grammar schoolhouse on the “Dr. Forsyth lot” and building a new high school on land already owned by the city, and doing other things alleged not to be authorized by St. 1900, c. 202.</p> <p>St. 1900, c. 202, provided, that “ The city of Chelsea, for the purpose of purchasing land and erecting thereon a high school building, for furnishing the same, and for other school purposes, and for erecting a fire station and enlarging the Spencer Avenue schoolhouse, may incur indebtedness beyond the limit fixed by law to an amount not exceeding two hundred thousand dollars.”</p> <p>The case was heard by Barker, J. It appeared, that the sum of $22,000 had already been raised by the issue of bonds under the act, and had been used for the erection of a fire station, concerning the legality of which no question was raised ; and that the board of aldermen had undertaken to provide for the expenditure of the entire balance of the fund by passing the following order;</p> <p>“ Ordered, that His Honor the Mayor be and he hereby is authorized to purchase the lot of land on Everett Avenue and West Third Street, owned by the heirs of Dr. Forsyth, and the vacant lot of land on the northerly side of Library Street, and lying between Chestnut and Cherry Streets.</p> <p>“ Ordered, that a new Grammar School Building be erected on the Dr. Forsyth lot and a new High School Building be erected on the so-called Broadway lot, both buildings to be built according to plans and specifications by W. Hart Taylor now before the Board of Aldermen which are hereby approved.</p> <p>“ Ordered, that the present Broadway School-house be moved on to the aforesaid lot, northerly of Library Street, and it be placed on a substantial foundation and be refitted and furnished for manual training purposes, and that in the basement of said building, as relocated, the heating apparatus for the new High School-house shall be placed.</p> <p>“ Ordered, that said High School building shall be furnished and fitted for occupancy, that the grounds about the Grammar School, the grounds about the Manual Training School and the High School building shall be graded and seeded.</p> <p>“ Ordered, that the sum of $48,000 be and is hereby'appropriated for, purchasing land and erecting the Grammar School-house and that the sum of $130,000 be and is hereby appropriated for the purchase of land, relocating and remodelling the present Broadway Building and erecting and furnishing a new High School-house.</p> <p>“ All sums of money called for by these orders to he charged to the loan authorized by chapter 202, Acts of 1900, when made.”</p> <p>By a further order the board directed the preparation and sale of bonds for the purpose of raising the $178,000 under the act for the purposes prescribed in the foregoing orders providing for the construction of school buildings, which bonds were in the course of preparation when the petition was filed but had not been executed nor issued.</p> <p>It further appeared, that no part of the authorized $200,000 had been employed for the purpose of enlarging the. Spencer Avenue schoolhouse, and that all of the fund had been appropriated, so that there was then no money available for that purpose. It appeared in evidence that an order for the enlargement of the Spencer Avenue school at a cost of $15,000 had been presented to the board, and its adoption refused; and it further appeared, that the Spencer Avenue schoolhouse was used for primary school purposes and was situated upon the opposite side of the city and more than a mile from the proposed site for the new grammar school upon the Dr. Forsyth lot. It appeared also that the Broadway lot, upon which the city proposed to erect a high school building, was then occupied by a primary school building which was in actual use by a primary school.</p> <p>The respondents denied in their answer that the persons intended to be benefited by the enlargement of the Spencer Avenue school would not be benefited by the proposed new school upon the Dr. Forsyth lot. Ho evidence was offered by the respondents.</p> <p>At the close of the evidence, the petitioners requested the justice to rule as follows:</p> <p>1. The orders providing for the construction of the grammar schoolhouse on the “ Dr. Forsyth ” lot and the high schoolhouse on the “ Broadway ” lot commit the city to an illegal expenditure of the money authorized to be borrowed under St. 1900, c. 202.</p> <p>2. The city of Chelsea cannot use money borrowed under St. 1900, c. 202, for the purpose of building a schoolhouse not specified in the act, if the effect of that use be to render it impossible to provide for a purpose which is specified in the act.</p> <p>3. The words “ other school purposes ” in that act relate to purposes connected with the high school.</p> <p>The justice declined so to rule, and ordered a decree to be entered in favor of the respondents, dismissing the petition; and the petitioners alleged exceptions.</p>

<p>Equity Jurisdiction, Bill for instructions. Executor.</p> <p>The executor under the will of one who was the executor and residuary legatee under the will of another has no locus standi to maintain a bill for instructions as to whether his testator as residuary legatee under the earlier will took absolutely or only for life.</p>

<p>Evidence, Opinion.</p> <p>On the issue of soundness of mind a witness not an expert cannot he asked whether an alleged testator was subject to delusions or hallucinations.</p>

<p>Evidence, Of foreign law. Joint Owners and Owners in Common. Perpetuities. Heirlooms. Equity Pleading and Practice, Parties. Limitations, Statute of, Special of two years. Words, “ Joint owners.”</p> <p>A dictum of the highest court of another State is evidence of the law of that State.</p> <p>The will of Ann Haven, of New Hampshire, who died there in 1849, contained the following provision: “It is also my will that the portraits of my late husband and of myself, which were painted by Stuart, shall remain in the mansion house, the use of which was bequeathed to me by my late husband during my life, so long as any of my lineal descendants shall occupy the same; and when said house shall cease to be occupied by any of my said descendants, I give said portraits to such of my four sons as shall then be alive, and if none of them shall then survive, I give said portraits to the male descendants of my said sons.” The house continued to be occupied by lineal descendants of Ann Haven until some time in 1895, and apparently until 1898, up to which time the portraits remained there. In 1896 a petition was filed in the Probate Court in New Hampshire in which Ann Haven’s estate had been settled, praying for the appointment of an administrator de bonis non of her estate on the ground that the portraits were unadministered assets. This case came by appeal and reservation to tile full bench of the Supreme Court of New Hampshire, who affirmed a decree dismissing the petition and declared in the opinion of the court, that “ Tiie rights of parties in the portraits furnish no occasion for further administration of Ann’s estate. The only parties having such rights are the plaintiff, the defendant, and George G. Haven, who are tenants in common of the portraits.” The three persons thus designated were the male descendants of the sons of Ann Haven, all of those sons being dead. The same plaintiff filed a bill in equity in this Commonwealth under St. 1891, c. 383, praying the court to order a sale of the portraits and a proper disposition of the proceeds. A demurrer to the bill was overruled. Held, that the demurrer was overruled rightly and that the plaintiff was entitled to the order prayed for; that, although the portion of the above quoted opinion in regard to the title to the portraits might be obiter dictum, it was evidence of the law of New Hampshire, and disposed of the case, so that it was not necessary for this court to consider, whether under our law the gift to the male descendants of the four sons would be valid, or whether the direction, that the portraits should remain in the mansion house so long as it was occupied by any of Ann Haven’s lineal descendants, could be supported as a disposition of the portraits as heirlooms. Held, also, that the plaintiff was guilty of no loches, as the decision of the Supreme Court of New Hampshire gave full effect to the clause giving the portraits to the male descendants of the four sons, and by that clause the plaintiff and the other two male descendants did not become entitled to the possession of the portraits until the mansion house had ceased to be occupied by a lineal descendant of Ann Haven, and there was nothing to show loches since that time, or to show tl&t if there had been delay the defendant was prejudiced by it. Held, also, that it was not necessary, that the legatees, distributees and heirs at law of the children of Ann Haven should be made defendants, the executors and administrators of the estates of those children having been made defendants and representing them.</p> <p>A bill in equity under St. 1891, c. 383, praying for a sale of personal property owned in common and a proper disposition of the proceeds, is not barred by the special statute of limitations set up by the executor of one of the owners in common. Such a proceeding is not to enforce a claim or liability against the estate, but to determine the rights, if any, of various parties and estates in the property in question.</p> <p>In St. 1891, c. 383, providing for the determination of “all questions and controversies arising between joint owners of personal property, and their legal representatives, relating to such property ”, the words “joint owners ” include owners in common.</p>

<p>Equity Jurisdiction, Over foreign corporations. Receiver. Corporation, Foreign.</p> <p>A bill in equity may be maintained by a stockholder of a corporation organized in another State aqd doing business here, against.the corporation and its president and directors, to restrain the directors from carrying on in this Commonwealth a business not authorized by the company’s charter, and also to compel the directors to account for property of the corporation misappropriated by them, this being.in the nature of a suit by the corporation against wrongdoers whose persons and property are in the Commonwealth rather than a regulation of the internal affairs of the foreign corporation.</p> <p>In a suit by stockholders to enjoin the directors of a foreign corporation from doing business ultra vires and to compel them to account for property of the corporation misappropriated by them, the appointment of a receiver generally is not necessary or proper, although it is possible that a special case might arise in which such an appointment would be justified.</p>

<p>Street Railway, Condition in location. Contract, Implied.</p> <p>If a town grants to a street railway company a location, to reach which it is necessary to construct a railway in an adjoining town, and the last named town refuses a location, this does not relieve the railway company from the performance of a condition in the location granted by the first named town, that the company shall build ten miles of road within one year, if under the location more than ten miles of , road can be built in that town alone, and, for the same reason, it is immaterial, that a railway company, in another State adjoining the town, under substantially the same management had expended a large sum of money in grading, preparatory to constructing a road to meet the proposed railway at the State line.</p> <p>A street railway company asked a town for a location, and presented a draft of a location containing a condition that the railway company should deposit the sum of $2,000, which should be paid to the treasurer of the town if ten miles of road were not built within one year. The location was granted on the terms asked, and the railway company made the deposit. The road was never built, and the railway company brought a bill in equity to restrain the payment of tile $2,000 to the town treasurer. Held, that the payment being voluntary the court would not assist the plaintiff in recovering it, whether the condition proposed by the plaintiff and accepted by the town was against public policy or not.</p>

<p>Practice, Civil, Rulings. Street Railway. Nuisance. Evidence, Circumstantial, of negligence.</p> <p>If a declaration contains three counts on one of which the plaintiff is not entitled to recover, and the defendant asks for no separate ruling on that count but asks fora general ruling that upon the evidence the plaintiff is not entitled to recover, the ruling should be refused if upon the evidence the plaintiff is entitled to go to the jury on either of the other counts.</p> <p>In an action against a street railway company for injuries caused by an excavation in a highway between the tracks of the defendant, alleged to have been made and maintained by the defendant in the repair of its tracks contrary to the duty imposed by St. 1898, a 578, § 11, with a count at common law for creating and maintaining a dangerous excavation in the highway, there was no testimony that any workman of the defendant was seen to make the excavation or that it was ordered to be made by any one in the defendant’s service, but it appeared. that before the ditch was made water ran from a point near themorth rail to a switch of the defendant near by, carrying sand and gravel into the switch and impeding its operation, that the excavation started at the north rail and went toward the south rail connecting with a gutter beyond it, that it gradually deepened in its course from the north rail and presented the appearance of having been made by digging and not of having been washed out, and that while it was there employees of the defendant were at work upon the track replacing old ties with new ones within a few yards of the excavation. The defendant, although it introduced evidence, made no attempt to show that it did not cause the excavation to be made or by whom it was made, except by cross-examining one of the plaintiff’s witnesses in regard to a hydrant near the excavation that had been repaired several weeks before the accident. Held, that this evidence justified a finding that the defendant made and maintained the excavation for its own purposes, and that there was evidence to go to the jury of the defendant’s liability both under the statute and at common law.</p>

<p>Tort against a street railway company for injuries from the collision of a car of the defendant with a covered wagon in which the plaintiff was driving on Central Street in Lowell. Writ dated May 14, 1901.</p> <p>At the trial in the Superior Court before Gashill, J., it appeared, that the accident occurred on March 12, 1901. The plaintiff was in the grocery business, and was driving home on the night of the accident, at about six o’clock in the evening, in a covered grocery wagon. It was then daylight. He testified, that he drove up the westerly side of Central Street and continued on the westerly side, going south until he came opposite to Warren Street, which runs at a right angle from Central Street in an easterly direction, when he turned his team and drove at right angles across the tracks of the defendant toward Warren Street; that when he was about two hundred feet from Warren Street he saw the car which subsequently struck his wagon coming toward him on the easterly track. At that time the car was about four hundred feet from Warren Street. He testified that he had the car in sight from the time when he first saw it until he turned his horse to cross into Warren Streetr While crossing the tracks the horse he drove was walking. He then testified, that as he turned his horse toward Warren Street the car was coming toward him quite fast and was about one hundred feet distant from him; that he judged it to be a safe distance away; that when his team was at right angles to and was crossing the tracks, he was so far from the front of the team that the curtain hid the car from his view; that he then did not see the car again until he looked out around the curtain and saw that the car was approaching his wagon and was not more than twenty feet distant therefrom and coming fast; that he heard no bell or gong on the car at any time ; that until that time the horse had been walking across the track; that then for the first time in crossing the track he attempted to make the horse go faster than a walk; that he was unable to get the wagon out of the way of the car. The car struck the rear of the wagon and threw the plaintiff out, and the wagon was carried along by the car to a distance variously stated at from fifteen to seventy-five feet.</p> <p>One Martin, a witness for the plaintiff, testified, that when the plaintiff turned toward Warren Street the car was then all of seventy or seventy-five feet distant from the plaintiff’s team.</p> <p>Harry Ferguson, the motorman, testified, that the plaintiff crossed in front of his car about fifty feet northerly from Warren Street; that the plaintiff’s team was then about sixty feet from the car, and the car was going not much faster than a walk; that the plaintiff before he had gone completely across the tracks turned his horse toward the car, thereby causing the accident. He stated on cross-examination that he could have stopped the car instantly if the rails had been dry ; that at this timé the rails were wet, and that under these circumstances he could have stopped his car within a few feet. The conductor was not called as a witness.</p> <p>At the close of the evidence, the defendant asked the judge to rule that the action could not be maintained, and to order a verdict for the defendant. This the judge refused to do. The jury found for the plaintiff in the sum of $1,100; and the defendant alleged exceptions.</p>

<p>Corporation, Foreign, assessment of shareholders. Jurisdiction. Contract. Attorney. Accord and Satisfaction. Evidence, Proof of foreign law, Burden of proof.</p> <p>An action to recover an assessment on shares not fully paid can be maintained here by a foreign corporation against a stockholder resident in this Commonwealth.</p> <p>Tlie statute under which a foreign corporation was organized provided that the memorandum of association and the articles of association should bind each member to the same extent as if he had subscribed his name thereto and that all moneys payable by any member of the company in pursuance of any condition or regulation of the company should be deemed to constitute a debt due from such member to the company. The articles of association provided that the directors from time to time might make calls upon the members in respect of all moneys unpaid on their shares and that each member should pay the amount of every call so made on him to the persons and at the times and places appointed by the directors. The certificates of shares contained a provision that the holders took them subject to the articles of association and the rules and regulations of the company. Held, that these various provisions created a valid and binding contract with the stockholders of the corporation to pay assessments for the amounts unpaid on their shares, which could he enforced against them in the courts of this Commonwealth or of any other State or country where service could be obtained upon them and jurisdiction over them acquired.</p> <p>The memorandum of association of a foreign corporation contained the provision1 “ The nominal capital of the company is £500,000, divided into 50,000 shares " of £10 each, of which the first issue shall be 25,000 shares, with power to increase such capital, and to issue all or any part of the original or increased capital at a premium or at a discount.” Held, that one who subscribed for the shares of this corporation had waived the right, if otherwise he would have had it, to object that the whole fifty thousand shares had not been subscribed for and therefore that an assessment for the unpaid portion of the shares issued could not be enforced.</p> <p>Where the shares of a corporation are liable to an assessment and the directors have power to make it, the necessity or wisdom of the assessment cannot be controverted, unless in case of fraud.</p> <p>Whether an attorney at law has authority by virtue of his employment as such to agree without his client’s sanction to a compromise of his client’s suit, may be regarded as still an open question in this Commonwealth. Per Morton, J.</p> <p>The attorney of a corporation, whose shareholders were liable to an assessment made, arranged a compromise by which the shareholders were to be released on payment of a part of the amount assessed. This afterwards was rejected by the directors as ultra vires as to the creditors of the company. The money paid by the shareholders under the attempted compromise was returned to them. A shareholder thus receiving his money wrote to the corporation that he did not wish his money returned, as he was undetermined what to do, and that he held the money subject to the order of the company. But he kept the money. Later he resisted the payment of the full assessment on the ground, that a compromise had been made. Held, without considering whether the attorney had authority to make the compromise, that the attempted compromise was at most an accord without satisfaction, that the shareholder was bound by his acceptance of the return of the money in spite of his attempt to qualify his action, and also, that as to creditors at least the proposed compromise was ultra vires. Whether such a contract would be valid between the corporation and its stockholders if duly entered into and executed, was not considered.</p> <p>Under Pub. Sts. c. 169, § 73, the law of a foreign country may be proved without authenticated copies if a witness who has examined the copy and compared it with the original testifies that it is correct.</p> <p>Semble, that where one objects to the certificate of a public official that a company is incorporated, because it is not under an official seal, it is incumbent upon him to show that there is an official seal.</p>

<p>Practice, Civil, Charge.</p> <p>In an action for injuries caused by horses attached to a cart running away and striking the plaintiff, the counsel for the plaintiff in his argument assumed in accordance with the testimony of the eye-witnesses that the driver was at the tail of the cart when the horses started, and the judge in charging the jury made the same assumption. At the end of the charge the counsel for the plaintiff objected to this assumption and asked the judge to call the jury’s attention to the contention of the plaintiff that the driver was not by his cart when the horses started. The only evidence from which the absence of the driver in any way could be inferred was testimony that the driver'did not appear on the scene of the accident until fifteen or twenty minutes after it occurred, the place being eight hundred and fifty feet away from where the horses started. The judge refused to charge as requested. Held, that the judge was justified in refusing to suggest a new argument in behalf of the plaintiff at the end of the charge especially as there was the merest scintilla of evidence on the subject if there could be said to be any at all.</p>