Volume 182 — Massachusetts Reports

<p> Deceit. Evidence. </p> <p>In an action for deceit inducing a conveyance of certain real estate by the plaintiS to the defendant in exchange for certain worthless shares of a defunct company fraudulently represented by the defendant to be shares of another and prosperous company having a name similar but not identical, the defendant excepted to the exclusion of the questions whether the plaintiS had oSered before the action was brought to return the shares and take a deed back and whether he was willing to take back the land for the stock. Held, that the exclusion was right; that the action was for damages and the question whether the plaintiS had oSered or was willing to rescind was immaterial and had no bearing on the question of deceit.</p> <p>The evidence stated by the court was held to be sufficient to justify a finding that the exchange of real estate of the plaintiS for worthless stock of the defendant was procured by false and fraudulent representations of the defendant’s agent, acting within vhis authority, to the plaintiff’s agent and through him to the plaintiS.</p> <p>In an action for deceit inducing a conveyance of certain real estate by the plaintiS to the defendant in exchange for certain worthless shares of a defunct company fraudulently represented by the defendant to be shares of another and prosperous company having a name similar but not identical, it is no evidence of negligence on the part of the plaintiS, that the plaintiff and his agent visited the office of the company whose stock they supposed they-were getting without discovering the fraud, or that the plaintiff’s agent having the certificate for the worthless shares in his possession for a few hours did not examine it and discover the difference in name.</p>

<p>Mortgage, Foreclosure, mortgagee’s expenses for repairs.</p> <p>If a mortgagee in possession, who has entered not intending to keep possession but solely for the purpose of more effectually foreclosing by a sale under the power contained in the mortgage, makes repairs, which are not needed to preserve the estate from loss or injury, solely for the purpose of obtaining a higher price at the sale, it fairly may be said that he has gone beyond his duty and his right as mortgagee, and a finding that he is not entitled to be allowed the expense of the repairs is justified.</p>

<p> Landlord and Tenant. Fixtures. </p> <p>A lessee built a platform on the demised premises and it was agreed between him and his lessor that the structure should remain the property of the lessee and that he should have the right to remove it “ when he got out.” Later the lessor refused to allow the removal and the lease terminated. A new lessee took possession with no notice of the agreement and made various repairs and changes upon the platform. In a suit in equity by the new tenant to restrain the former lessee from replevying the platform, it was held, that the character of the platform was such that it became a part of the realty as soon as it was erected, and, although the former lessee had the right to remove it at any time during his term and the lessor was liable to him in damages for refusing to allow him to do so, this did not affect the rights of the plaintiff who had taken his lease of the premises without notice of the agreement and that he was entitled to an injunction.</p>

<p> Commonwealth. Waterworks. </p> <p>In order to enforce a claim for the price of materials under Pub. Sts. c. 16, § 64, against funds retained from a contractor by the Commonwealth, it is not necessary to give notice before furnishing the materials of an intention to claim a lien, and none of the requirements of c. 191, in regard to enforcing mechanics’ liens, have any application.</p> <p>A contract between the Commonwealth and a contractor for the construction of sections five and six of the Nashua Aqueduct provided that the Commonwealth should withhold from the contractor sufficient moneys to cover “ all claims for labor or materials for the work, notice of which, signed and sworn to by the claimants,” should have been filed in the office of the metropolitan water board. There were two separate contracts, exactly alike in their terms, one for each section. On a petition by one who had furnished to a subcontractor cement which was used partly on section five and partly on section six, seeking the benefit of this reserved fund, it appeared, that the petitioner had filed with the metropolitan water board a sworn notice of a claim for the price of all the cement furnished by him for both sections “ to be used in the construction of the aqueduct and waterworks of the Commonwealth, under the direction of said board, and especially for section five thereof” declaring that the petitioner had learned and believed that all of the cement was actually used in the construction of the waterworks, and that the Commonwealth had had the use and benefit of all the material, and that he therefore claimed of the Commonwealth the full sum named by virtue of a certain section of the “ Contract for Building Section 5 of the Nashua Aqueduct,” “ and by virtue of all other sections thereof, and all other laws, acts, contracts and agreements pertaining to said aqueduct and water works, and material to his said claim.” Held, that this notice did not confine the petitioner’s claim to the price of the cement furnished for section five, but was broad enough to cover all the cement furnished for both sections.</p> <p>A contractor .made a contract with the Commonwealth for the construction of certain sections of an aqueduct containing a provision that the Commonwealth should withhold from the contractor sufficient moneys to cover all claims for labor and material duly presented. A subcontractor failed, and abandoned the portion of the work he had undertaken, and the principal contractor settled with him allowing him in full for the materials on hand. Thereafter one who had furnished the subcontractor with cement for the work filed a petition seeking the benefit of the fund reserved in the hands of the Commonwealth. Held, that the petition was not filed too late, there having been no unreasonable delay; that the principal contractor knew the provision in his contract and by the exercise of reasonable diligence might have known that the subcontractor had bought cement from the petitioner which was delivered and not paid for, and if under the circumstances he chose to settle with the subcontractor in full, he must be held to have done it at his own risk.</p> <p>A contractor made a contract with the Commonwealth for the construction of certain sections of an aqueduct containing a provision that the Commonwealth should withhold from the contractor sufficient moneys to cover all claims for labor and materials duly presented. On a petition by one who had furnished cement to a subcontractor, seeking the benefit of the fund reserved in the hands of the Commonwealth, it appeared, that the petitioner sold all the cement to the subcontractor and delivered it at the site of the work, and that when more than half of the cement had been used the subcontractor failed and abandoned the portion of the work he had undertaken. The principal contractor under his contract with the subcontractor had the right “ by contract or otherwise ” as he might determine, to complete the work covered by the contract and charge the expense to the subcontractor, and to use therefor such of the subcontractor’s “ materials, animals, machinery, implements and tools of every description ” as might be found upon the line of the work. The principal contractor settled with the subcontractor and made a contract with a construction company to complete the work. The principal contractor testified that he bought the cement and other materials left on the line of the work and received from the subcontractor a bill of sale, that he paid the subcontractor and the construction company in turn paid him, and that he immediately transferred the property to the construction company and passed over to it the bill of sale. All of the cement was used in the construction of the aqueduct. Held, that the petitioner was entitled to recover for the price of all the cement and not merely for the portion used by the subcontractor before he failed; that the transfer of the remaining cement, although in the form of a sale, was in substance a taking possession of the cement under the contract, and a use of it thereunder.</p>

<p>Practice, Civil, Assessment of damages on default.</p> <p>Under Pub. Sts. c. 171, § 2, providing, that when a defendant is defaulted the court shall award such judgment for the plaintiff as it shall find to be just and proper, unless the plaintiff or defendant moves to have the damages assessed by a jury, the motion for a jury must be made after the default. A defendant’s claim for a jury under Pub. Sts. c. 167, § 69, before the default, necessary to make his case a jury case at all, cannot supply the want of such a motion.</p>

<p>Intoxicating Liquors, Innholder’s license. Evidence, Burden of proof.</p> <p>Tinder Pub. Sts. c. 100, § 9, cl. 2, (B. L. c. 100, § 17, cl. 2,) permitting a licensed innholder to supply intoxicating liquors on Sundays “ to guests who have resorted to his house for food or lodging ”, an innholder lawfully may sell such liquors to a person resorting there on Sunday, who expects to make and makes a substantial purchase of food and eats it, whether or not his undisclosed reason for wanting the food is that he may get intoxicating liquor witli it.</p> <p>The rule that the burden of proof is on an innholder seeking to justify sales of intoxicating liquor on Sunday to show that the persons to whom the sales were made were guests who resorted to the house for food or lodging, applies where the sales are relied on as evidence of intent on a complaint for illegal keeping as well as to prosecutions for illegal sales.</p> <p>On a complaint against two brothers for unlawfully keeping for sale intoxicating liquors the evidence showed sales on Sunday alleged to be in violation of their inn-holder’s license. It appeared that the license was in the names of both defendants, but both of them testified without contradiction that the second defendant worked for wages and had no interest in the business and that his name was inserted with his brother’s in the license merely in order that the business might go on in case the first defendant died. It appeared that the second defendant was present during the whole of the day when the sales took place. Both defendants were found guilty. Held, that there was some evidence that the second defendant was guilty. The jury might have disbelieved the testimony of the defendants and have inferred a joint interest from the license, coupled with whatever part the second defendant took in the management of the business of the inn.</p>

<p> Judgment. Estoppel. Interest. Auditor. </p> <p>Where a judgment was made up for a principal sum and costs without adding interest from the date of the writ, as should have been done, and the plaintiff in ignorance of the error was paid the amount of the judgment and gave a receipt for it, it was held., that the plaintiff was not precluded from maintaining a writ of error to reform the judgment and that he was entitled to have the mistake corrected.</p> <p>When a claim is liquidated and should have been paid before action brought, and an auditor allowing interest thereon has computed it only to the date of the writ, interest on the amount awarded by the auditor should be computed from that date. Pub. Sts. c. 171, § 8, properly interpreted does not direct otherwise.</p>

<p>Equity Jurisdiction, To enjoin nuisance, Injunction, Damages.</p> <p>In a suit in equity by the owner of an ice pond to restrain a proprietor of greenhouses from burning soft coal to the injury of the plaintiff’s ice, a master found that the damages if any caused by smoke, soot and cinders from the defendant’s chimney were insignificant compared with the damage to the ice resulting'from other causes, and also found that, while the use of soft coal was not a necessity in carrying on the defendant’s business, it saved him between $400 and $500 a year. Held, that the plaintiff was not entitled to an injunction or to damages ; that an injunction would not afford the plaintiff the relief which he sought and would inflict great and unnecessary injury on the defendant, and as the alleged injuries were too slight and uncertain to be a ground for an injunction they could not be made the basis for an assessment of damages.</p>

<p>Conversion, Plaintiff’s right to possession. Sale. Contract, Construction.</p> <p>In an action by a stove company against a constable for the conversion of certain ranges upon the premises of an intending purchaser where they had been placed by the plaintiff under a written agreement, it appeared, that the plaintiff had agreed to “ furnish and lease ” to the purchaser certain ranges “blacked and set up ” and the purchaser agreed to pay the price when the ranges were “ furnished and set up,” and it was further agreed, that the title should remain in the plaintiff until fully paid for and that the plaintiff should have a right to enter and take possession on any breach of the contract. The defendant had attached the ranges as the property of the purchaser before they were set up or paid for. Held, that this was not a lease because when the ranges were furnished and set up they were to be paid for at once, and that the contract was not one of conditional sale where property is delivered before it is paid for, because there had not been a delivery, but that the plaintiff, remaining the owner with the implied right to enter the purchaser’s premises in order to complete its work by setting up the ranges, retained possession and the right of possession, and could maintain its action.</p>

<p>Indictment, found and returned December 7, 1901, jointly against the defendant and one Haley, who was riot apprehended, for robbery from the person of one Galant.</p> <p>At the trial in the Superior Court before Lawton, J., the defendant was found guilty; and thereafter alleged exceptions.</p>

<p>Bill in equity, filed July 11, 1901, by an executrix to restrain the defendant Taylor from prosecuting an action against the plaintiff on a guaranty by the plaintiff’s testator of a certain note mentioned by the court.</p> <p>In the Superior Court the case was heard by Fox, J., who found that the plaintiff was entitled to a decree perpetually enjoining the action on the guaranty, and at the request of the respondent Taylor reported the case for the consideration of this court. If the ruling was right, a decree was to be entered on the finding of the judge; otherwise, such decree was to be entered as justice and equity might require.</p>

<p> Municipal Corporations. Board of Health. </p> <p>A town board of health transcends its powers in attempting to award a contract under R. L. c. 25, § 14, for the removal of ashes and garbage in violation of a direction contained in the vote of the town making the appropriation that the work should “ be let out to the lowest responsible bidder.”</p>

<p>Equity Jurisdiction, Mandatory injunction. Street Railway. Constitutional Law.</p> <p>In a suit in equity by a city against a street railway company to compel the defendant to remove the rails laid by it in a certain street and to substitute rails of a different kind, it appeared, that a condition imposed by the terms of a grant of location, authorizing the defendant to extend its tracks in the street in question, required that all materials used and all details of construction of the tracks should be subject “ to the acceptance of the supervisors of highways and bridges ”, who were given general supervision of all highways by the ordinances of the city, and, that the defendant a short time before, without notice of any intended requirement by the supervisors of a new form of rail, had expended a large sum of money in improving its tracks in that street by laying stronger rails and in doing so had dug up a portion of the street, but had restored it to the same condition as before the change. By accident, and with no intention of violating the law, the defendant, in digging up the street and in substituting the stronger rails, had failed to apply for or obtain the permission of the supervisors. Held, that, if the city had a locus standi, it was not entitled under the circumstances shown to a mandatory injunction compelling the removal of the rails.</p> <p>A condition contained in a grant of location, not original, from a city to a street railway company, requiring a street railway company to macadamize the whole line of location between the rails and eighteen inches outside of them and to keep this surface in repair, is abrogated by St. 1898, c. 578.</p> <p>In St. 1898, c. 678, § 11, providing, that street railway companies shall remain subject to all legal obligations imposed in original grants of location, an original grant of location is the same thing as an “ original location ” which is defined by § 1 of the same statute to mean the first location granted to a railway company by a city or town.</p> <p>St. 1898, c. 578, abrogating conditions as to the repair of highways imposed upon street railway companies in grants of location, not original, is constitutional. Semble, that such locations are not contracts between the city or town and the railway company but are in the nature of licenses to use the public ways, and held, that, if such locations constitute contracts, they are contracts of such a nature that the Legislature can modify or annul them without violating the constitutional provisions. Whatever might be the rights of a railway company having an exceptional charter, at any rate, so far as the city or town is concerned, it must be deemed to have acted in behalf of the public in granting locations in the streets and public ways, and the Legislature has the same right to modify or abrogate the conditions on which the locations were granted, that it would have if the Legislature itself originally had imposed the conditions. •</p>

<p> Street Railway. Constitutional Law. </p> <p>St. 1898, c. 578, freed street railway companies from all obligation to keep any portion of the surface material of streets, roads or bridges in repair, unless the obligation to repair was imposed in a grant of original location, defined in that act to be the first location granted to a railway company by a city or town; and having this effect the act is constitutional. Following Springfield v, Springfield Street Railway, ante, 41.</p>

<p>Insolvency, Unlawful preference. Conversion. Evidence.</p> <p>A firm, for the purpose of making an unlawful preference to a certain bank, transferred all its assets to a corporation which assumed and agreed to pay its debts. This corporation did no business except as to the liabilities of the firm and its only capital consisted of the assets of the firm. In an action by the assignee in insolvency of the firm against the bank for the conversion of certain property delivered to it and for certain sums of money paid to it by the above named corporation and alleged to be fraudulent preferences, it appeared, that both the firm and the corporation were insolvent when the alleged preferences were made, that insolvency was contemplated by the firm, and that when the firm opened an account with the defendant the defendant knew that one of the partners had failed the year before and demanded that $1,000 be placed in the name of its cashier as collateral security for any present or future indebtedness from the firm. This was done, and a few months later an additional $600 in like manner was required and paid. During a period of five months the firm overdrew its account sixteen times, one of the overdrafts being for $468 and two others for over $100 each, and on the last overdraft the defendant closed the account with the firm. In the month following the bank had knowledge that the firm had transferred all its assets to the corporation above mentioned upon the understanding that the corporation should pay all outstanding debts of the firm. Held, that the fact that the legal title to the property and money was in the corporation at the time of the alleged preferences did not affect the plaintiff’s right to recover, as the formation of the corporation was merely a scheme or device of the partnership to give a preference to the bank, and that there was evidence, that both the firm and the bank knew that the firm was not in a solvent condition and that the defendant had reasonable cause to believe that the firm was insolvent.</p> <p>In an action by an assignee in insolvency against a bank for a payment by the insolvent debtor to the defendant of a certain note, alleged to be an unlawful preference, it appeared, that on the day the note was paid the defendant held three notes made or indorsed by the debtor which were due and had been protested more than fourteen days before. Held, that this of itself was an act of insolvency under Pub. Sts. c. 157, § 112, and evidence that the defendant had reasonable cause to believe on that day that the debtor was insolvent.</p> <p>Evidence that a debtor was insolvent at the time of an alleged preference, that he made it with the intention of giving a preference over other creditors and that the person to whom it was made had reasonable cause to believe that the debtor was then insolvent, will justify a finding that the.payment or transfer was made in fraud of the laws relating to insolvency under Pub. Sts. c. 157, § 96.</p> <p>An assignee in insolvency of the joint and separate estates of the members of a partnership was appointed in the county of Suffolk where the partnership did business, the first publication of notice of the proceeding being given on June 17. Before this an involuntary proceeding in insolvency had been begun in the county of Bristol, where one of the partners lived, against that partner individually, the first publication of notice of that proceeding being given on April 23 of the same year. In an action by the assignee appointed in the county of Suffolk to recover as an unlawful preference a payment to the defendant on a note signed by the Bristol County partner payable to the partnership and indorsed in the firm name, it appeared that the payment was made on March 19 of the same year out of the private funds of the Bristol County partner. Held, that the action could not, prevail, as, if the payment was made under such circumstances that it could be set aside, this could be done only by the assignee appointed in the county of Bristol.</p> <p>In an action by an assignee in insolvency against a bank for an alleged unlawful preference, the presiding judge, dealing with the question whether the bank had reasonable cause to believe that a preference was intended, and not then with the intent on the part of the debtor to prefer, instructed the jury among other things as follows : “ If the bank received directly from the insolvent debtor a payment in full, that might authorize you to infer that the hank understood that a preference was intended; but if the property came to the bank through a third person, the question whether they ought to have understood that this was a preference may be a different question. That is a question for you to determine.” Held, that in the connection in which it was used the instruction was correct.</p> <p>In an action by an assignee in insolvency against a bank for the conversion of certain tobacco alleged to have been delivered to the defendant as an unlawful preference, there was evidence, that the tobacco which belonged to the insolvent debtor was substituted for certain mortgages belonging to a third person held by the bank to secure the note of the insolvent. The presiding judge instructed the jury, that if part of the purpose in the transaction was to prefer the bank and if the bank had any reasonable cause to suppose that that was a part of the purpose, then they might find a fraudulent preference, although, as a matter of fact, the bank was not benefited by the substitution. The plaintiff then requested a modification of the charge by a further instruction, that if the substitution was made for the purpose of giving a fraudulent preference to the owner of the surrendered security, and the bank had reasonable cause to believe that such was the purpose, the plaintiff might recover although the transaction was a substitution of collateral. The judge refused to modify the charge. Held, that the refusal of the modification was error; that the release of security belonging to a third person and the substitution for it of property of the insolvent debtor had the effect of diminishing the estate of the insolvent, and the jury might have found that there was a preference under Pub. Sts. c. 157, § 98, and a conversion of the tobacco, without any intent to prefer the bank and although 0 the bank gained nothing by the transaction.</p> <p>In an action by an assignee in insolvency against a bank for an alleged unlawful preference consisting of the delivery by the insolvent debtor to the defendant of the promissory note of a third person, where the action is not for the conversion of the note but to recover the proceeds of it, the defendant may show that it realized all that it could on the note and what that amount was, and cannot be held for more.</p> <p>In an action by an assignee in insolvency against a bank for alleged unlawful preferences made to the defendant by an insolvent partnership and its members, the cashier of the defendant testified that he never at any time before the failure of the partnership or of its members had any information that they intended fraudulently to convey or conceal any part of the assets of the firm. Held, that this evidence was admissible on the issue whether the defendant had reasonable cause to believe that the firm was insolvent or in contemplation of insolvency when the payments to it were made. The knowledge of the defendant being pertinent, the information which its cashier had was pertinent.</p>

<p>Contract with three counts alleging breaches of the agreement stated by the court and a count in tort for slander of, title. Writ dated October 21, 1898.</p> <p>In the Superior Court- the case was tried before Maynard, J. The answer to all the counts was a general denial. On the second day of the trial the defendant was allowed to amend his answer by setting up the statute of frauds. The plaintiff excepted to the allowance of the amendment.</p> <p>The question to the plaintiff referred to in the last paragraph of the opinion of the majority of the court, the exclusion of which became immaterial, was as follows: “ Q. How long had the negotiations or talk been going on between you and Mr. Burnett before you had made the agreement ? ” This was objected to by the counsel for the defendant. The counsel for the plaintiff then stated that he wished.to show." that Mr. Burnett had been negotiating with Hurley with regard to this property right along, and that of course he took advantage of the position that Hurley was in, in consequence of his relations with Donovan.” The judge excluded the question and the plaintiff excepted.</p> <p>At the close of the plaintiff’s case, the judge on motion of the defendant ordered a verdict for the defendant; and the plaintiff, alleged exceptions.</p> <p>The case was argued at the bar in January, 1902, and after-wards was submitted on briefs,to all the justices.</p>

<p>Bill for instructions, filed as amended November 12, 1901, by the trustees under the will of Sidney Homer, late of Brookline.</p> <p>Contract by the daughter of a niece of Sidney Homer, late of Brookline, more than twenty-five years of age and born more than three years after the death of Homer, for a legacy of $1,000 under a certain provision of his will. Writ dated September 21, 1901.</p> <p>The suit in equity was reserved by Barker, J. on the amended bill and answers for the consideration of the full court.</p> <p>The action at law came on to be heard in the Superior Court before Fessenden, J., who found pro forma for the defendants on an agreed statement of facts and reported the case for the consideration of this court.</p> <p>The first codicil, in regard to the provisions of which instructions were sought by the bill in equity, omitting the last two paragraphs, was as follows:</p> <p>“ Confirming the will by me made in Boston, April 6, 1869, I Sidney Homer, of Brookline, add thereto this codicil, viz.:</p> <p>“ That in said will I have made certain bequests and annuities; the bequests are to be paid out of the capital of my estate, and the annuities out of the income for each year. 1</p> <p>“ In case the income falls short of enough to pay said annuities therein mentioned and hereafter devised, the deficiency is to be paid out of the capital fund of the estate, and whenever the income of the estate exceeds the annuities to be paid in any one year, then the surplus income is to be divided by my executors and trustees, among my heirs at law, in such way and in such proportion as may seem to them most in accordance with my wishes, devoting the sum or sums in preference to the purchase of land and homestead for the young married persons among my heirs; and I appoint Mr. Samuel B. Pierce, Mr. Franklin Evans and Mr. William C. Appleton as referees and arbitrators, whose decision, or that of a majority of them,- shall be final and binding upon all parties, in case of any doubts or misunderstandings in reference to said will of April 6, 1869, or this codicil.”</p> <p>The general provisions of the will are described by the court.</p> <p>The action for the legacy was founded on the last clause of the following paragraph of the will, in connection with the introductory provision of the first codicil, quoted above, that bequests should be paid out of capital: “ From any surplus that may be left from the income of each year, after paying the annuities above described I direct "the following payments to be made from the first funds in the hands of the trustees, viz. To each of the children of my brother, Peter T. Homer and of my sister, Mrs. Hannah R Pierce, who are otherwise amply provided for, $1,000, as a token of remembrance and to each of the children of my nephews or nieces, I give $1,000 to be paid to each when twenty-five years of age.”</p> <p>The case was argued at the bar in January, 1902, and after-wards was submitted on briefs to all the justices.</p>

<p> Flats. Wharf. Grant. Harbor and Land Commissioners. </p> <p>St. 1851, c. 26, authorizing Donald McKay, the proprietor of a wharf on Border Street in that part of Boston called East Boston, “ to extend and maintain his wharf into the harbor channel as far as the line established by the act entitled ‘an act concerning the harbor of Boston,’ passed on the seventeenth day of March, in the year one thousand eight hundred and forty,” was a legislative grant and not merely a revocable license, and, whether or not a wharf built since the passage of St. 1866, c. 149, under authority of the original grant is subject to regulation by the harbor and land commissioners, at any rate the owner of such a wharf cannot be required to make compensation under Pub. Sts. c. 19, § 14, for the displacement of tide water in its construction, such a requirement being in derogation of the original grant.</p> <p>Semble, that the establishment of a new harbor line may be one of the things that the Legislature can do without violating a legislative grant made before the passage of St. 1866, c. 149, authorizing the extension of a wharf to a former harbor line farther out.</p> <p>The question, whether one, who has erected a structure in tide water under a license granted by the secretary of war under a statute of the United States, is subject to the provisions of Pub. Sts. c. 19, § 8, (R. L. c. 96, § 16,) raised but not passed upon.</p>

<p>Negligence, Contributory, On railroad. Employers’ Liability Act, Dependent for support under. Evidence, Competency, to show death, in rebuttal.</p> <p>By a decision reported in 176 Mass. 393, this court held, that at the first trial of this case, where a verdict was ordered for the defendant, there was evidence of due care on the part of the plaintiff’s intestate, and it is now held, that the same is true upon the evidence as presented at the new trial which took place after that decision. The plaintiffs intestate was a switchman employed by the defendant and was run over and killed on a dark stormy night in consequence of the mistake of a tower man in turning a freight train upon the wrong track. At the first trial there was evidence that.the intestate gave the right signal with his lantern as well as by calling to the tower man, and that the tower man acknowledged the order by a motion of his hand. At the new trial there was on this point merely evidence that the intestate gave the right signal to the tower man by calling out the number of the track on which the train should have gone. The tower man testified that he got the signal from the intestate, but that it was for the wrong track on which he turned the train. Held, that on the evidence in the case the jury could have found that the intestate had a right to assume that the tower man heard his signal, that if the tower man had made the usual motion in acknowledgment, it would not have indicated that he understood the signal but merely that he had got some signal, that the jury could have found that the tower man heard the signal and then threw the wrong switch by mistake and that the intestate had the right to assume that no train would come upon the track where he was struck and killed.</p> <p>Evidence, that a switching train in a freight yard was running at the rate of from eighteen to twenty miles an hour and that the usual rate of speed at that place was six miles an hour, is evidence of negligence on the part of the railroad company as against a brakeman employed in the yard.'</p> <p>In an action, by the mother and administratrix of an intestate under St. 1887, c. 270, as amended by St. 1892, c. 260, for the conscious suffering and death of "the intestate, the jury gave a verdict for the plaintiff" of $4,000, apportioned $500 to the plaintiff as the legal representative of the deceased, and $3,500 to the father of the deceased and husband of the plaintiff “ who at the time of the death of the deceased was next of kin, and dependent upon the wages of said deceased for support.” It appeared, that the intestate, who was twenty years of age, had been in the habit of giving substantially all his wages to his mother, and that she used them for the support of the family consisting of the father and mother and seven children including the intestate, that the father was earning $1.25 a day, and that he also gave his wages to his wife, the intestate’s mother, except what was necessary to pay the water rates and taxes on the house the family lived in, and $10.10 a month toward paying for the house, which was bought on the instalment plan for from twelve to fourteen hundred dollars and partially-paid for. The expenses of the family, including food and clothing of some of the children, were paid for by the mother out of the combined earnings of the father and son and of two daughters when they had work. Held, that on these facts the father could be found to have been dependent on the intestate, as the jury could have found that the mother acted for the father in receiving and expending his wages and those of his minor children. Held, also, that the father properly might testify, that he took out $10.10 a month to pay the instalments due on the house, this evidence being competent to prove how all the money put in the common purse was expended.</p> <p>Where it is material to show that a certain person is dead, a witness may testify that “ from general repute ” he knew that he was dead, if afterwards it is shown by another witness that the report of the death was brought home to the family of the deceased.</p> <p>In an action under St. 1887, c. 270, as amended by St. 1892, c. 260, for the death of the plaintiff’s intestate, a brakeman in a freight yard, run over and killed by a freight train of the defendant, the plaintiff called as a witness the conductor of the freight train. On cross-examination this witness was shown what purported to be a report of the accident with the witness’s name written on the back of it. The report stated that the train was going five miles an hour. The witness denied that the report was his, and at first admitted and afterwards denied that the signature was his. Later, called by the plaintiff in rebuttal, this witness was allowed to testify that neither the report nor the signature was his, that it was liis duty to make out a report in his own handwriting, and that in the report which he did make out he had stated that the train was going from eighteen to twenty miles an hour. Held, that the evidence was competent, and that its admission in rebuttal was within the discretion of the presiding judge.</p>

<p>Negligence, Employer’s liability, appliances, assumption of risk, Contributory. Evidence, Hearsay, Materiality, Admissions. Employers’ Liability Act, Dependent for support under. Master and Servant.</p> <p>If a contractor, who has put a platform hoist in a building to carry up materials for construction, adopts a rule forbidding men to ride upon the hoist and posts signs on or near it reading “ Dangerous. Keep out,” yet if the notice is so openly disregarded by the contractor’s superintendent and acting superintendent and by others in their presence as to become a dead letter and if the contractor and his agents know that his employees commonly disregard the notice and openly ride upon the hoist with the sanction of the contractor’s representatives, this justifies a finding that employees of the contractor killed by the falling of the hoist when they were riding on it were doing so by the contractor’s invitation.</p> <p>If a question calling for hearsay is asked and answered without objection, and another question then is asked and answered, it is too late to object to the first question or to ask to have the answer to it stricken out, as the answer although hearsay has become evidence by its admission without objection.</p> <p>In an action for the death of a workman of the defendant caused by the falling of a hoist for materials on which the defendant contended that workmen were forbidden to ride, evidence, that the hoist was used by the defendant’s superintendent and acting superintendent and by workmen riding with them as a means of access to the different parts of the building, is admissible as tending to show an implied invitation by the defendant’s representatives to use the hoist for this purpose. Further evidence that the foreman also used the hoist in the same way and that other workmen often were seen riding with him, also is admissible, as, if it was a common practice for workmen to use the hoist in this way, the jury might infer that it was known to the defendant, and, if so, it was evidence of an invitation.</p> <p>In an action under St. 1887, c. 270, § 2, for the death of the plaintiff’s intestate, the intestate’s mother testified that the intestate said to her ten days before the accident: “ Mother, don’t feel troubled. I will help you all I can. I will see to send you money every two weeks.” Held, that the evidence was admissible, the fact that the statement and promise were made and accepted being some evidence that the mother depended upon the intestate for support.</p> <p>In an action against one of several contractors engaged in constructing a building for the death of a workman caused by the falling of a hoist for materials on which the defendant contended that workmen were forbidden to ride, a witness called by the defendant testified, on cross-examination, that the defendant’s superintendent had told him about two weeks before the accident not “ to take up any more men on this elevator outside of my own men ” except the foremen of two other contractors mentioned, and that after this the witness had taken up the defendant’s workmen at work under the superintendent and had taken up the plaintiff's intestate in the presence of the superintendent and acting superintendent, with loads and without loads, and that when they went up without loads in the presence of the superintendent and acting superintendent no objection was made to it. Held, that this was evidence of invitation, and also evidence that the notice not to ride on the hoist did not apply to the defendant’s “ own men ” but to men employed by other contractors except the two foremen mentioned.</p> <p>In actions under St. 1887, c. 270, § 2, each for the death of an employee, it was held that each of the following persons could be found to be next of kin “ dependent upon the wages of such employee for support ”, namely, the mother of the employee, a poor widow, who had other sons living with her and'paying board, to whom the employee sent $10 before his father’s recent death and whom he had promised after that death to help all he could and to send money every two weeks; — the father of the employee in Ireland, destitute, feeble and not able to work, living with a married son to whom he had conveyed his farm, the employee having at several times sent his father money; — the father of the employee in Nova Scotia having a mortgaged place, owning two steers and two cows, and living with a wife and three sons, working at farming and fishing, the three sons working about the place, and to whom the intestate who had been away from home four years had sent money five or six times a year about $8 at a time.</p> <p>It cannot be said as matter of law that a hoist for materials in a building in process of construction is overloaded, when it has upon it two wheelbarrows weighing about one hundred and eighty-five pounds each and eight men, and no more men could have got on, and therefore if the hoist falls under these circumstances, it cannot be said as matter of law that the last man who got on was wanting in due care on account of an overloading being apparent.</p> <p>It is not as matter of law want of due care for a workman in a building in process of construction to use a hoi$t for materials in going from the upper to the lower part of the building instead of descending by ladders, if going up and down by the hoist was one of the ordinary ways, although the ladders might have been safer.</p> <p>In an action for the death of a workman of the defendant caused by the fall of a hoist for materials on which he was riding, it appeared, that the wire rope supporting the hoist parted near the eye bolt, having been weakened first by hammering the wire into shape in passing it through the eye and secondly by the want of a thimble in the eye over which the rope passed to protect the wire from wearing on the eye bolt and on itself. Held, that the risk of the hoist falling was not an obvious one which the workman assumed in going upon it; that so far as the defect consisted in the wire having been injured by hammering the defect was not obvious, and so far as it consisted in not using a thimble, although this was apparent to the eye, the lack of a thimble was not such an imperfection as would be known to an ordinary workman of the usual intelligence, and therefore was not a risk which he assumed.</p> <p>A workman employed by a contractor in the construction of a building is in the contractor’s employ while going at the noon hour from the eighth floor to the basement in order to eat his dinner.</p> <p>It is evidence of negligence in causing the fall of an elevator or hoist for materials, that the wire rope supporting it parted near the eye bolt and that the rope had been weakened first by hammering the wire into shape in passing it through the eye and secondly by the want of a thimble in the eye over which the rope passed to protect the wire from wearing on the eye bolt and on itself.</p> <p>If there is evidence that certain wooden signs warning persons not to ride on a hoist for materials, produced in court by a defendant sued for a death caused by the fall of the hoist, are not the signs that were posted on or near the hoist at the time of the accident, although testified to be such, the presiding judge would be justified in instructing the jury that if either of the parties had put in testimony knowing it to be false they had a right to take that into consideration when they came to weigh the testimony. The jury might decide that fraud and deceit would not be made use of in support of an honest defence.</p>

<p> Judgment. Bond. </p> <p>In a bond given under St. 1888, c. 325, upon the removal of summary proceedings for the possession of land to the Superior Court on the ground that the title was concerned, the condition was to “ pay to the plaintiff, if the final judgment is in his favor ” all rent, intervening rent and damage from the withholding of possession of the premises. After judgment in the Superior Court for the plaintiff, he brought an action on the bond against the principal and sureties. The defendants admitted a breach of the condition, but asked for a ruling that the action could not be maintained because it appeared that the plaintiff had no interest in the land. Held, that the judgment in the former suit conclusively established that the principal defendant wrongfully withheld possession from the plaintiff and that the contention of the defendants was not open to them.</p>

<p> Disseisin. Adverse Possession. </p> <p>A trustee held under a will certain real estate, to apply two thirds of the income to the support of the testator’s widow and one third to the support of the testator’s daughter. There were alternative contingent remainders to the heirs of the body of the daughter and to the trustee. The trustee conveyed to the widow and the daughter all his right, title and interest in the estate of the testator devised to him “ actually or contingently in trust or otherwise,” and the grantees entered, or already were in possession, and made two mortgages, assuming that they were seised of the land. Held, that the grantees were in of a fee, whether by right or wrong, and held adversely to the trustee, and to all persons claiming under the will.</p>

<p>Equity Pleading and Practice, Report of findings of fact. Trust, Creation. Savings Bank.</p> <p>If a report by a judge of the Superior Court under E. L. c. 159, § 23, of facte found by him in a suit in equity, does not purport to be a report of the evidence or to set it all forth, but merely states certain facts and the general finding of the judge, the only question before this court is whether the specific facts stated are inconsistent with the general conclusion reached.</p> <p>One making a deposit in a savings bank declared in the bank book to be in trust for another does not thereby create a trust if he had not the intent of doing so, and here the evidence warranted a finding that there was no such intent.</p>

<p>Negligence, Employer’s liability, duty to warn.</p> <p>A new hand in a cotton mill, who tries to free the feed rolls of a picker machine which are clogged with cotton by putting ins arm into the beater box where the beater knives are making fifteen hundred revolutions a minute and are not more than a quarter of an inch away from the feed rolls, cannot recover from his employer for having his arm cut off by the knives, and he is not excused for incurring this obvious danger by having seen a workman appointed to instruct him in the use of the machine thrust in his arm in a similar way when the machine was stopped and by the fact that the instructing workman did not tell him that the machine ought to be stopped when this was done. De Costa v. Margraves Mills, 170 Mass. 376, distinguished.</p> <p>It is not the duty of an employer to warn even a stupid foreigner who is dull and slow in learning to use a machine that he must not put his arm where it will come in contact with knives making fifteen hundred revolutions a minute.</p> <p>In an action by a new hand in a-cotton mill for injuries from a dangerous machine, where the plaintiff contends that it was the duty of the defendant to warn him of a danger obvious to an intelligent person because he was not of average intelligence, this court is not precluded from holding, that the presiding judge should have instructed the jury that the risk was an obvious one assumed by the plaintiff, by the fact that the court cannot know how stupid the plaintiff appeared to be when he was on the stand as a witness.</p>

<p>Tort for personal injuries sustained by the plaintiff on the night of March 4,1899, from an alleged defect in a certain highway leading from Sturbridge through Brimfield, the defendant, to the town of Wales. Writ dated April 12, 1899.</p> <p>At the trial in the Superior Court before Maynard, J., the plaintiff, at the close of the evidence, asked the judge to rule, that the defendant could not avail itself of any omission to state in the written notice given to the defendant, the place of the injury, because there was no evidence that the defendant complied with the provisions of St. 1894, c. 389. The judge refused to make the ruling requested, and gave the jury certain other instructions upon the subject. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The other questions raised are stated by the court.</p>

<p>Bill in equity seeking to establish a resulting trust in the plaintiff under the instrument stated by the court, amended from an action of contract. Writ dated February 15, 1901, and bill filed by amendment allowed by the Superior Court October 10, 1901.</p> <p>In the Superior Court the case was heard by Maynard, J., who ordered that the bill be dismissed with costs, and made the further orders, mentioned at the end of the opinion, that the trustee’s account be allowed and that the remaining funds in his hands be held to be expended by him for the support and care of Charles M. Scofield. The plaintiff appealed.</p>

<p> Street Railway. </p> <p>In an action for an assault and battery by a conductor of a street railway company in putting the plaintiff off a car on which he had refused to pay the fare demanded, it appeared, that the ear ran between a place called Mountain Park and the post office in Holyoke, and had on it the sign “ Mountain Park ”, but that when the plaintiff boarded the car it was going from the park to the post office, that the plaintiff desiring to go to the park asked the conductor if this was a Mountain Park car and the conductor said that it was, that the plaintiff then got on the car, paid a fare and rode to the terminus at the post office, that the car was then reversed and the plaintiff took the same seat he had occupied before, facing the other way, that after the car started on its return trip the conductor demanded another fare which the plaintiff refused to pay, whereupon the conductor put him off the car. It appeared that the plaintiff had noticed on other cars operated by the defendant that the signs were changed when the cars were reversed, indicating the terminus for which they were bound.' Held, that the plaintiff was wrong in refusing to pay the second fare and that the conductor was justified in putting him off, using no more force than was necessary ; that the plaintiff had asked a plain question to whicli the conductor gave a correct answer, and that the plaintiff was not justified in thinking that the car was on the way to the park because it had on it the sign “ Mountain Park ”, the defendant not being bound to adopt the same system of signs on all its cars.</p> <p>On the issue whether a conductor on a street railway used more force than was necessary in putting the plaintiff off his car on his refusal to pay his fare, if it appears that the conductor had to use force to put the plaintiff off and that the plaintiff was resisting, the mere fact that the plaintiff landed in the street on his' head is not sufficient to warrant a finding that undue force was used; nor is the additional fact that the car had not altogether cometo a stop when the conductor laid hold of the plaintiff, the plaintiff admitting that it had almost stopped and that by the time the conductor had him off he “guessed” it had stopped, sufficient to warrant such a finding.</p>

<p>Poor Debtor, Recognizance.</p> <p>A creditor who is present at the hour appointed for the examination of a poor debtor, ready to proceed with the debtor’s examination, cannot be held to have waived his rights, if he sees the debtor leave and makes no objection to his doing so, and, if the debtor does not return until after the time appointed for the examination has expired, the creditor has the right to rely on the debtor’s default in not appearing at the time appointed, and is not bound to proceed with the examination at the later hour.</p>

Contract, by the First National Bank of Minneapolis in the State of Minnesota against the City National Bank of Holyoke in this Commonwealth, for the amount of a judgment recovered in Minnesota against the plaintiff by the drawer of a certain check, on which the indorsement of the payee, one George Raymond, had been forged by another person of the same name, and which was sent by the defendant to the plaintiff for payment and paid by the plaintiff to the defendant, also for…

<p>Tort by the owner of letters patent covering certain improvements in switch operating mechanism, for alleged false and malicious libel of the plaintiff’s title, by reason of which an offer of certain persons to purchase the patent from the plaintiff was withdrawn. Writ dated September 26, 1900.</p> <p>In the Superior Court Maynard, J. ruled that the plaintiff could not recover, and ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Indictment, found January 20,1902, under R. L. c. 208, § 61. At the trial in the Superior Court before Pierce, J., the jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Two actions, one of contract or tort against M. Frank Eastman, a deputy sheriff, for money retained by him as charges out of the proceeds of a sale on execution, and the other by Eastman against the plaintiff in the first action for further charges for keeper’s fees and custody of property under an alleged agreement. Writs dated respectively April 28 and May 11,1901.</p> <p>In the Superior Court the cases were tried together before Hardy, J., without a jury. The judge made the ruling stated by the court and ordered a verdict for the plaintiff in the first case in the sum of $265.22 and a verdict for the defendant in the second case. Eastman, the defendant in the first case and the plaintiff in the second case, alleged exceptions.</p>

<p>Corporation, Ultra vires. Partnership. Hotel.</p> <p>If a steamboat company exceeds its powers by the purchase of a hotel, yet having a good title against all the world, except perhaps the Commonwealth, it can lease the hotel to another and can sue a third person on a guaranty that the rent shall be paid.</p> <p>Here assumed, that the enumeration of certain powers in the charter of a corporation excludes and forbids the exercise of others except so far as incidental and necessary to those granted.</p> <p>The fact, that the owner of a hotel in letting it to another provides for an additional rent of a certain percentage of the gross receipts in excess of a sum named, does not make the lessor a partner in the hotel business nor give him such an interest that he rightly can be said to be engaged in carrying on a hotel.</p>

<p>Three petitions, filed respectively December 20,1895, January 30, 1896, and February 4, 1896, to enforce mechanics’ liens for labor and materials furnished under contracts made with the respondent Rockwood and used in the erection of a certain building on Capen Street in that part of Boston called Dorchester.</p> <p>In the Superior Court the cases were tried before Richardson, J. The respondent Rockwood was defaulted and the suits were defended by the respondent Conant claiming title under a mortgage given to him by Rockwood and subsequently foreclosed. It appeared that after the making of the three contracts in question and after part of the labor and materials had been furnished, the respondent Rockwood acquired the premises by a deed from Helen F. King.</p> <p>The following issues were framed by the judge and submitted to the jury:</p> <p>1. Were the labor or materials of the petitioners which were furnished before the delivery of the deed from King to Rockwood furnished with the consent of the owner or of any person having authority from or rightfully acting for the owner in procuring or furnishing such labor or materials ?</p> <p>2. Were the labor or materials of the petitioners which were furnished after the delivery of the deed from King to Rockwood furnished with the consent, given prior to the delivery of that deed, of the owner at the time of such consent, or of any person having authority from or rightfully acting for such owner in procuring or furnishing such labor or materials ?</p> <p>3. Were the labor and materials of the petitioners furnished with the consent of the respondent Conant or of any person having authority from or rightfully acting for him in procuring or furnishing such labor and materials?</p> <p>After the first two issues had been framed the cases were sent to an auditor, who answered the first and second issues in the negative. The third issue was framed on motion of the petitioners after the auditor’s report had been filed. The respondent objected to the framing of this issue on the ground that it was immaterial, and appealed from the allowance of the motion. Later the respondent objected to the admission of any evidence relating to the third issue and to the submission of that issue to the jury, on the ground that the issue was immaterial, but the judge admitted the evidence and submitted the issue to the jury, and the respondent excepted.</p> <p>The jury answered each of the issues in the affirmative. The judge refused a ruling requested by the respondent, which is stated by the court, gave a ruling also stated by the court, and ordered the liens established and the premises sold for the purpose of satisfying them. The respondent Conant alleged exceptions.</p> <p>The case was argued at the bar in March, 1902, and after-wards was submitted on briefs to all the justices.</p>

<p> Trust. </p> <p>A provision that the income of a trust fund shall be paid to the testator’s daughter during her life at such times and in such sums as the trustees deem judicious gives the trustees no such power to withhold payments as to make the daughter’s life estate inalienable.</p>

<p>Negligence, Contributory. Street Railway. Evidence.</p> <p>A passenger who boards an open electric car in which there are plenty of vacant seats and chooses to pass along the running board while the car is in motion on the side on which other cars pass assumes the risk of injury from being struck by a car passing on the neighboring track.</p> <p>In an action by a passenger for injuries while passing along the running board of an open electric car from being struck by another car on the neighboring track, evidence that the plaintiff on previous occasions had been on the running board of other cars on the side next to passing cars and had not been injured is not admissible, having no tendency to show that the plaintiff did not assume the risk of injury or that he was in the exercise of reasonable care. So of evidence that the car that struck the plaintiff was a new kind of car and that the old cars were narrower, and also of evidence that on tlife car that struck the plaintiff a guard rail was used upon the side on which other cars passed.</p>

Five petitions of creditors to be joined as parties plaintiff in a pending suit in equity, to enforce against officers of the Bullard Camera Company, an insolvent Massachusetts corporation, their statutory liability for its debts.

<p>Evidence, Relevancy, Bes gestee, Best and secondary, Extrinsic affecting writings. Practice, Civil, Exceptions.</p> <p>In order to show that a person is the owner of certain chattels, evidence that he offered to purchase them and that afterwards a bill of sale of them was given to him is relevant and admissible.</p> <p>Where it was material for the plaintiff to show that the defendant was the owner of certain chattels at a certain time, the plaintiff put in evidence a bill of sale to the defendant of the chattels in question dated at a time when the defendant held a mortgage upon them. The defendant later offered in evidence a letter from himself to the mortgagor which contained a draft of the bill of sale and the letter in answer to it in which the bill of sale was enclosed, in Order to show that the purpose of the bill of sale was to give the defendant authority to sell the chattels as the property of the mortgagor and not to make him the owner. The letters were excluded. Held, that the exclusion was wrong, as the correspondence was part of the transaction of the giving of the bill of sale and was relevant to show the legal effect of that instrument upon the ownership of the chattels.</p> <p>On an exception to the exclusion of letter press copies of certain letters, the party in whose favor the ruling was made cannot at the argument take the ground that the copies were inadmissible because no notice to produce the originals had been given unless it appears that that objection was taken at the trial.</p> <p>Whether letter press copies are admissible without calling for the production of the originals, qumre.</p> <p>A party to an action wishing to show that a certain bill of sale was sent to him in order to give him the power to sell the chattels covered by it and not for the purpose of making him the owner of the chattels, cannot be allowed to state what the purpose of the bill of sale was.</p> <p>To prove that the defendant was the owner of certain chattels at a certain time, a bill of sale from the defendant to a third person is admissible, having a tendency to show that the defendant was the owner of the chattels when he executed it. For the same purpose and for the same reason the record of a suit brought by the defendant against a third party for breach of a contract with the defendant to purchase the chattels is admissible.</p> <p>No exception lies to the exclusion of questions so broad that incompetent evidence might be given in answer to them, especially if the bill of exceptions does not show what the answers would have been.</p>

<p>Negligence, Employer’s liability.</p> <p>A workman in a shoddy factory cannot recover from his employer for injuries caused by the starting of a machine while he was trying to mend a broken belt by drawing the ends together, if the accident would not have happened had the spinner who had been operating the machine drawn back the lever and fastened it in the place provided for it when the machine was stopped. In such a case the negligence of a fellow workman is the proximate cause of the injury, and semble, that it is want of due care for a workman thus to attempt to mend a belt without taking any precautions to see whether the machine is likely to start.</p>

<p>Contract, Parties. Corporation.</p> <p>A corporation cannot be sued on a contract made for its benefit by its projectors before its incorporation. But setnble, that a contract so made might amount to an offer addressed to the new company when it came into being and then could be accepted by the corporation, or that the corporation by accepting a conveyance of property in accordance with and in contemplation of the terms of a contract made by its projectors might be found to have made a new contract upon those terms.</p>

Bill in equity, filed September 5, 1901, to restrain the defendants from removing or interfering with a certain monument erected by the plaintiff in a burial lot in the town of Hampden owned in common by the plaintiff and the defendants. The defendants demurred to the bill. The Superior Court sustained the demurrer; and the plaintiff appealed.

<p> Agency. Mortgage. Payment. </p> <p>If a mortgagee assigns the note and mortgage and the assignee authorizes the mortgagee, his assignor, to collect both interest and principal on this and other mortgages for him, and thereafter revokes the authority as to principal, continuing it as to interest, but giving no notice of such revocation to the mortgagor, the mortgagor on a bill to redeem is entitled to credit for two payments of principal made to the original mortgagee relying on his apparent authority after his authority to collect principal had been revoked.</p>

Contract upon an account annexed for rent unpaid under the covenants of a lease of a mill privilege and water power. Writ dated July 1, 1901. In the Superior Court it was admitted that the rent sued for had not been paid and that payment was refused on the ground that it had accrued since the drawing down of the waters of the mill pond by the removal of the gates by the county commissioners under the circumstances stated by the court.

<p>Tort for personal injuries caused by being run over by a team of the defendant negligently driven by the defendant’s servant. Writ dated July 16, 1901.</p> <p>In the Superior Court Crashill, J. refused to rule that the plaintiff was not entitled to recover and to give the other rulings requested by the defendant. The jury returned a verdict for the plaintiff in the sum of $500; and the defendant alleged exceptions.</p> <p>The accident occurred on June 29, 1901. The testimony of the defendant in regard to the boy Eddie Morrow, referred to by the court, was as follows : “ There was no boy in my employ during the month of June from the twelfth of June to the first of September who receipted for goods to be delivered by my teams. The boy or person whose initials 4 E. M.’ have been mentioned by the previous witnesses was Eddie Morrow.”</p> <p>On cross-examination the defendant further testified as follows : “ I could not tell you how old Eddie Morrow is ; he is in his teens. He has worked for me part of the time through three or four weeks near the first of September. He did not work for me before June only on Saturday. Saturdays and holidays he worked. I did not employ Eddie Morrow and other boys to drive my team and deliver parcels on Saturdays and holidays. I don’t know whether he worked for mé last spring, but he has worked for me before June, and he has worked since, about a month ago. I have been in stores with Morrow when he was in my employ. He was in my employ, I don’t remember what he did. After the twelfth of June he was not in my employ. I was only here two or three days the latter part of June.”</p>

<p>Tort for personal injuries while employed in the screw factory of the defendant. Writ dated September 17, 1900.</p> <p>In the Superior Court O-askill, J. at the close of the plaintiff’s evidence ordered a verdict for the defendant; and the plaintiff alleged' exceptions.</p>

<p>Tort for the óonversion of two tons of hay. Writ dated April 9, 1901.</p> <p>In the Superior Court Craskill, J. ruled as matter of law that the plaintiff was entitled to recover and ordered a verdict for the plaintiff in the sum of $38.91. The defendant alleged exceptions.</p>

<p>Metropolitan Water Supply Act. Words, “Business.”</p> <p>A widow whose eight children working in a mill live with her paying board and whose two nieces and their aunt occasionally board with her during their summer vacations is not an individual “ owning an established business ” within the meaning of St. 1895, c. 488, § 14.</p>

<p>Negligence, Employer’s liability. Animal.</p> <p>In an action for injuries from being kicked by a horse which the plaintiff was driving for the defendant there is no sufficient evidence that the defendant knew or ought to have known that the horse had a vicious habit of kicking, if it appears that the defendant had been in possession of the horse only a month and a half and that during that time the horse had only kicked once and then under such circumstances that the viciousness of the kick was only a conjecture.</p> <p>From the facts that a horse of the defendant driven by the plaintiff in a laundry wagon switched his tail over the reins knocking them out of the plaintiff’s hands and ran away kicking continuously until he hit the plaintiff on the leg it reasonably cannot be inferred that the horse before the accident had a vicious habit of kicking or that the defendant should be charged with a knowledge of such a habit.</p>

<p> Tax. Executor. </p> <p>Pub. Sts. c. 11, § 20, cl. 7, (R. L. c. 12, § 23, cl. 7,) directing that a tax on the estate of a deceased person shall be assessed to the executor or administrator “ for the space of three years, unless the same has been distributed and notice of such distribution has been given to the assessors stating the name, residence, and amount paid to the several parties interested in the estate who are inhabitants of the commonwealth,” requires a notice to be given in every case, whether the distributees are inhabitants of the Commonwealth or not. In case they are such inhabitants the further requirement applies.</p>

<p>Petition, filed June 3, 1901, under St. 1895, c. 488, § 13, for damages from a change of grade and alteration of Boylston Street in the town of Clinton.</p> <p>In the Superior Court before Grashill, J. the jury assessed damages in the sum of $1,250.49; and the petitioner alleged exceptions, raising the questions stated by the court.</p>

<p> Municipal Corporations. Tax. Constable. Evidence. </p> <p>Under Pub. Sts. c. 50, § 5, it is the official duty of a town treasurer who also is collector of taxes to collect sewer assessments in the same way that ordinary taxes are collected and he has no authority to pay a constable from the town treasury for serving demands for the payment of such assessments.</p> <p>Demands for the payment of sewer assessments are not warrants or other processes within the meaning of Pub. Sts. c. 27, § 119, which it is the duty of constables to serve when directed to them by the selectmen of their town.</p> <p>A part payment made to a constable by a town treasurer out of the money of the town, never authorized or ratified by vote of the town, for compensation for serving demands for the payment bf sewer assessments, does not tend to show, that the treasurer, the road commissioners or the town solicitor had authority from the town to employ the constable for that purpose at its expense.</p>

<p>Tort for personal injuries. Writ dated October 30, 1901.</p> <p>In the Superior Court Hopkins, J. refused to give certain instructions requested by the plaintiff and gave other instructions which are described by the court. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which after the death of Hopkins, J., were allowed by Graskill, J.</p>

<p>Two ACTIONS of contract, by different plaintiffs against the same defendants, under St. 1890, c. 437, § 2, for payments alleged to have been made upon wagering contracts. Writs dated May 15 and 18, 1900.</p> <p>In the Superior Court the cases were tried before Fox, J., who refused to order verdicts for the defendants and also refused certain rulings requested by the defendants. The jury returned a verdict for the plaintiff in each case, in the first case in the sum of $4,487.10, and in the second case in the sum of $11,409.53. The defendants alleged exceptions.</p>

<p> Judgment. Probate Court. Executor. </p> <p>The validity of the appointment of an administrator by a probate court having jurisdiction cannot be called in question by a railroad company in an action brought against it by the administrator under Pub. Sts. c. 112, § 212, for causing the death of his intestate.</p> <p>Where a record of a probate court recites that the widow of the deceased and the guardian ad litem of the next of kin assented to the appointment of a certain administrator and on the petition and the writings upon and annexed to it no assent .of the widow appears, but there is no proof that the probate court at the hearing upon the petition did not have before it other evidence, it will be presumed, under St. 1891, c. 415, § 4, R. L. c. 162, § 2, unless the contrary is shown, that a request in writing of the widow for the appointment of the administrator was before the probate court as the foundation of the recital in its decree.</p>

<p>Compromise, Of controversies concerning wills. Probate Court. Judgment.</p> <p>An indorsement "I approve of the foregoing compromise ” signed by a guardian ad litem is good as a signature.</p> <p>A decree of a probate court admitting a will to probate to be executed according to the terms of a compromise under R. L. c. 148, § 15, approved by a previous decree of the same court void for want of jurisdiction, even if it is technically operative as a decree simply establishing the will until formally revoked, at any rate will be vacated on motion of a contestant, and the controversy to which the attempted compromise related is not affected by the entry of the decree.</p> <p>Where a decree has been entered in a probate court admitting a will to probate to be executed according to the terms of a compromise under R. L. c. 148, § 15, approved by a previous decree of the same court void for want of jurisdiction, and later a new compromise agreement concerning the same controversy has been confirmed by a single justice of this court, it is the duty of the probate court upon exhibition to it of the new compromise and decree, to declare its old decree void and to admit the will to probate to be executed in accordance with the valid compromise agreement.</p>

<p> Negligence, Res ipso loquitur. Street Railway. </p> <p>In an action against a street railway company for personal injuries, after a plaintiff has shown that the car in which he was being carried was derailed by a large stone which had rolled upon the track from a neighboring embankment, it is too late for him to rely on the mere derailment as evidence of negligence.</p> <p>Where the tracks of a street railway company are laid upon a portion of a public highway not used for common travel and excavated for the purpose through a ledge leaving an embankment from eight to ten feet high from four to six feet from the nearer rail, the company as to its passengers is bound to exercise the same degree of care to prevent the rolling of stones from the embankment upon its track that it would be bound to use if the embankment were part of a location on the company’s own land or of one taken from private owners under the right of eminent domain, and this degree of care is the same that is required in regard to the equipment and management of the company’s cars and the construction of its tracks.</p>

<p>Contract for an amount alleged to be due as compensation and commissions under an agreement in writing. Writ dated April 22, 1901. *</p> <p>The answer contained a general denial, and also alleged that the plaintiffs were employed to take orders for shoes and turn over the orders to the defendant, and that they did that work so negligently and so failed to turn over the orders at the proper time that the defendant lost the sale of the goods ordered, and thereby suffered great loss.</p> <p>In the Superior Court Fox, J. ruled that the damages sought to be recouped by the defendant were too remote, and ordered a verdict for the plaintiffs for the whole amount claimed. The defendant alleged exceptions.</p>

<p>Tort for malicious prosecution. Writ dated November 27, 1901.</p> <p>At the trial in the Superior Court before Hardy, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the exclusion of certain evidence and the refusal of a certain ruling which are stated by the court.</p>

<p>Tort for damages caused by water overflowing from a gutter which it was alleged the defendant allowed to be obstructed in the construction of the railway of the Blue Hill Street Railway Company under a location granted by the selectmen of the defendant. Writ dated April 6, 1900.</p> <p>The defendant demurred to the declaration.</p> <p>In the Superior Court the demurrer was overruled by Eardy, J., and the defendant appealed. Thereafter the case was tried before Sherman, J.,- and the jury returned a verdict for the plaintiff in the sum of $200. At the request of the defendant the judge reported the case for determination by this court upon the terms stated by the court.</p> <p>The case was argued at the bar in January, 1902, and after-wards was submitted on briefs to all the justices.</p>

<p>Trust, Construction. Words, “Legal debts.”</p> <p>An unmarried woman owning two parcels of land conveyed the first parcel to a trustee for the benefit of her sister after the grantor’s death “subject to a mortgage ” and covenanted against all incumbrances “ except as aforesaid.” On the same day she conveyed the second parcel to the same trustee with a direction to sell it after the grantor’s death and from the proceeds to “ pay her legal debts and funeral expenses ” and after deducting charges, to pay the balance to the grantor’s brother, or if he were then dead, to her sister. After the grantor’s death it turned out that the proceeds from the sale of the second parcel would be less than sufficient to pay all the debts of the grantor if the debt secured by the mortgage on the first parcel was included. Held, that the mortgage debt must be so included, the facts not, being sufficient to show that the words “ her legal debts ” were used in other than their natural meaning.</p>

<p>Tort by a passenger for injuries alleged to have been caused by the sudden starting of a train of the defendant when the plaintiff was about to alight therefrom. Writ dated March 19, 1900.</p> <p>By a decision of this court reported in 179 Mass. 535, the exceptions of the defendant taken at the first trial of this case were sustained. At the new trial in the Superior Court Aiken, J., at the close of the evidence on both sides, ruled that upon the whole evidence the plaintiff was not in the exercise of due care, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Evidence, Remoteness. Conversion.</p> <p>In an action for the alleged conversion of $200 intrusted by the plaintiff to the defendant for safe keeping, evidence that at the time of the conversion the defendant owed the plaintiff $100, is inadmissible as too remote.</p>

<p>Evidence, Extrinsic affecting writings. Landlord and Tenant.</p> <p>The lessee of a store, sued for rent upon a lease in writing, cannot vary and contradict the instrument by showing an oral agreement made between the parties before the execution of the lease that if during the term the lessee should take from the lessor a lease of another store and should vacate the first one the lessor would surrender all his rights under the first lease.</p>

<p> Constitutional Law. Tax. </p> <p>St. 1867, c. 106, concerning sewers and drains in the city of Worcester providing in § 4 that “ Every person owning real estate upon any street in which any drain or sewer may be laid under or by virtue of this act, and upon the line thereof, or whose real estate may be benefited thereby, shall pay to said city such sum as the mayor and aldermen shall assess upon him as his proportionate share of the expenditure of the city for drains and sewers,” is constitutional. The Legislature in enacting it contemplated a specific region and must be taken to have had in mind a specific scheme and to have adjudicated that the real estate on the line of the sewers with possibly some other land would be benefited as a whole to the extent of the charge put upon it.</p>

<p>Negligence, Employer’s liability, assumption of risk, statutory notice. Railroad.</p> <p>A freight handler does not assume the risk of the failure of a conductor of a freight train to give a customary warning of its approach, nor does he assume the risk of an approaching train being driven in on a track at an unreasonable rate of speed.</p> <p>St. 1894, c. 389, relating to notices of the time, place and cause of bodily injuries, does not by the provision that the notice shall “ claim damages or payment therefor ” require the notice to claim damages in terms if it appears from the notice that it is intended as a basis of a claim against the person to whom the notice is given.</p> <p>The conductor of a freight train may be found to be in charge of it although temporarily absent upon a duty incident to the proper management of the train if meanwhile nothing is done contrary to his orders or expectation. Still more can he be found to be in charge of the train when he testifies “ I was directing the train by motion. The engineer responded to the motion I gave him.”</p>

<p>Tort with one count in the nature of trespass quart clausum and another count for injury alleged to have been caused by the defendant’s negligence in removing wood and timber. Writ dated March 30, 1901.</p> <p>In the Superior Court the case was tried before Richardson, J. The defendant’s sixth request for a ruling, which was refused by the judge, was as follows: “ That the written grant by A. S. Jefts and E. D. Blood to the defendant Garno of a right to enter upon the described real estate and cut and remove the wood and timber thereon, authorized the defendant to cross their other real estate between that lot and the public highway in the natural and usual way, and to use for that purpose any road, driveway or cart path across their land affording a reasonable means of ingress and egress and commonly used by other persons in passing between that lot and the public highway.”</p> <p>The judge made the rulings stated by the court. The jury returned a verdict for the plaintiff in the sum of $100; and the defendant alleged exceptions.</p>

<p>Metropolitan Water Supply A ct. Constitutional Law. Words, “ Property.”</p> <p>A person whose established business on land in the town of West Boylston was decreased in value by the carrying out of the metropolitan water supply act, St. 1895, c. 488, within the provisions of § 14, is not a person “ whose property is taken'under the right of eminent domain, or entered upon or injured by the taking of said water ” within the meaning of § 15 of that act and therefore is not given a right to have his damages determined by a jury. Barker, J. dissenting, on the grounds that § 15 gives the water board the right to a jury in every case and so should be construed to cover the cases of all persons aggrieved by a decision of commissioners appointed under § 14, and that liberally construed the words a person whose property is “injured by the taking of said water ” include a person whose business is decreased in value by the carrying out of the act.</p> <p>Semble, that the diminution of the value of a business by taking under right of eminent domain the land on which the business is carried on and the adjoining land where customers dwell is not an injury for which the constitution requires compensation to be made.</p>

<p> Joint Tortfeasors. Damages. </p> <p>The two defendants, each mounted on a motor tricycle with a gasoline engine making a loud noise and emitting steam, came up behind the plaintiff who was driving slowly in a wagon and passed him at a high rate of speed, one on each side, causing his horse to shy so that his wagon wheel struck another wagon and the plaintiff and his wagon were injured. He brought a separate action against each defendant, and obtained a verdict against each. Held, that, both of the defendants having been found to be wrongdoers, it made no difference that there was no concert between them or that it was impossible to determine what portion of the injury was caused by each, that if each contributed to the injury both were bound and that whether each contributed was a question for the 3ury-</p> <p>If two wrongdoers contribute to an injury they may be sued either jointly or severally, and in the latter case the plaintiff is entitled to judgment against each defendant for the full amount, although it can be satisfied but once.</p>

<p>Contract for money deposited by the plaintiff in the Whitman Savings Bank and paid by that bank to another person. Writ dated August 7, 1901.</p> <p>At the trial in the Superior Court before Bell, J., without a jury, the defendant relied on the following by-law: “Article XXI. Identification of Depositors. As the officers of this institution may be unable to identify every depositor transacting business at the Bank, the Institution will not be responsible for loss sustained where the depositors have not given notice that their books have been stolen or lost, if the sums of money entered in such book shall have been paid in whole or in part on presentation of said book.”</p> <p>It appeared that on January 4,1900, the plaintiff made a deposit in the defendant bank of $600, and received a deposit book, having printed in it the by-laws. At the same time he signed the books of the defendant, agreeing to be bound by the bylaws. The deposit book was kept by the plaintiff in his trunk at his house, and frequently he looked to see if it was there, but he never looked into the book itself. So far as he knew, no person except his wife and himself knew of the book or where it was kept. In August, 1901, his wife left him, and some time after that he took the book to the bank to have the interest on his deposit added to it. Upon presenting the book which he had, he learned that it was not the original book, and that the original had been paid in full and taken up by the bank. The defendant introduced orders, which purported to be signed by the plaintiff, calling for the payment of different sums of money to persons therein named, which sums had been paid to and receipted for by the persons presenting the orders. The last order called for the payment of the balance due, which amount was paid and receipted for, whereupon the book had been surrendered. The person presenting the orders in each case also presented the book, and the withdrawals were entered in the book at the times of payment. The plaintiff denied having signed any of the orders, and testified that he had no knowledge of them until he went to the bank and learned that his deposit had been withdrawn.</p> <p>The judge found that the plaintiff was entitled to recover his deposit of $600 and also the dividends declared by the bank to the date of demand, and after that interest at six per cent. The defendant alleged exceptions.</p>

<p>Contract, Implied. Attachment.</p> <p>A deputy sheriff who after an attachment has been dissolved refuses to deliver to the owner the money in his hands, from a sale by agreement of the property attached by him, is liable in an action for money had and received.</p>

<p> Devise and Legacy. </p> <p>A legacy of a certain number of shares of a certain stock is a general legacy and not specific, unless otherwise shown to be so, especially when the number of shares owned by the testator is less than the number named, and in this case the executor must purchase the shares necessary to make up the number bequeathed.</p>

<p>Negligence, Employer’s liability, Contributory.</p> <p>Where the undertaking of laying an iron conduit in the bed of a stream was under the general charge of "a person called the master mechanic, but the foreman in charge of laying certain sections of the pipe while not constantly present was very often there, and the orders under which the work was done came from him, and he employed and discharged the men engaged in the work, and any manual labor which he performed was in order to show how such work should be done, and where the plaintiff was injured from the breaking of a chain selected by this foreman and in use by .his order, a jury was held to be justified in finding that the foreman was a superintendent exercising superintendence within the meaning of the employers’ liability act.</p> <p>For a superintendent in charge of the laying of sections of iron pipe, to overload the chain of a hoisting machine and to give an order to hoist while the chain is overloaded, is evidence of negligence, especially where also there is evidence that there was a noise as of the breaking of some portion of the apparatus, whereupon the man who was hauling told the superintendent that he thought some part was giving way and that there was something cracking, that the superintendent in reply told him to go on and pull it right up, that he did so and the accident occurred.</p> <p>A laborer who is ordered by a superintendent to block up a piece of iron pipe being laid in a trench, and who does so directly under a hoisting apparatus which owing to the breaking of an overloaded chain falls upon and injures him, may be found to be in the exercise of due care.</p> <p>A workman blocking up a piece of iron pipe in a trench by order of a superintendent does not assume the risk of a hoisting apparatus falling on him by reason of the negligence of the superintendent in overloading a chain.</p>

<p> Equity Pleading and Practice. Way. </p> <p>Where there has been an appeal from a decree in equity of the Superior Court, the judge of that court having found certain facts, the parties cannot by agreement add to the record a fact not found by the judge. If one of the parties wishes to bring to this court all questions of fact he should have a commissioner appointed to take the evidence, or, having failed to do so, if he wishes to introduce a new fact he must apply to the judge who heard the case in the Superior Court to make a finding on the desired point under R. L. c. 159, § 23.</p> <p>An abutter on a public way cannot maintain an action for an obstruction to the way in a part of it not opposite his land, and if the obstruction is opposite land adjoining his that does not help his case, as the injury although greater in degree by reason of proximity does not differ in kind from that suifered by the public.</p>

<p>Will, Undue Influence. Evidence. Practice, Civil, Instructions.</p> <p>The fact that the provisions of a will are unreasonable does not in itself justify a finding that it was the product of an unsound mind or of undue influence, but on those issues evidence is admisible tending to show that the will was not such a reasonable one as a person of sound mind and free from undue influence would have made.</p> <p>On the issues whether a testatrix, who was a widow, was of sound mind and executed her will free from undue influence, the contestants may introduce evidence not only of the amount of her estate but also of the amount of her husband’s estate, and may show that the person alleged to have exercised the undue influence was entitled to receive a large amount under her husband’s will, that both he and the testatrix knew the contents of the husband’s will before his death and at the time of the execution of the will of the testatrix and knew approximately the amount of his estate, and that the person alleged to have exercised the undue influence induced the testatrix not to waive the provisions of her husband’s will and thereby reduce the amount which he would receive under it.</p> <p>To show that the execution of the will and codicil of a testatrix was procured by the undue influence of a certain person, the contestants called that person as a witness and asked him whether at any time after the execution of the codicil to the will he kept the relatives of the testatrix from seeing her, and whether he gave directions to persons of his household not to let some of her relatives see her. The witness answered the first question in the afiirmative, and in answer to the second question said that there was one relative -whom he had given directions not to let in while the testatrix was in her feeble condition. The executor excepted to the admission of this evidence. It did not appear when the events referred to took place. Held, that for aught that appeared the events referred to might have happened at or about the time when the codicil was executed, and in that case the evidence clearly was admissible, and semble, that if the events occurred later the evidence still would be admissible.</p> <p>A statement of assumptions of fact which, if found by a jury to be true, would warrant a finding, that the will of a woman of eighty-four years of age enfeebled by disease was procured by the undue influence of her confidential adviser and manager of her business in whose family she lived, made by the presiding justice in this case, was approved by the court as correct.</p> <p>When at a trial instructions are requested which correctly state the law applicable to the case, the presiding judge can give them in the exact language requested or in his own language, and there is no valid objection to either course.</p>

<p> Equity Jurisdiction. Mortgage. Wagering Contracts. </p> <p>In a bill in equity to restrain the foreclosure of a mortgage, an offer to pay what if anything shall be found due, makes the bill good as a bill to redeem.</p> <p>A bill in equity will lie to restrain the foreclosure of a mortgage and compel the surrender and cancellation of a note given to secure margin accounts on wagering contracts within St. 1890, c. 437, § 2.</p>

<p>Intoxicating Liquors. Witness, Cross-examination.</p> <p>The evidence stated by the court was held to be sufficient to warrant the inference that the defendant, a druggist with no license to sell intoxicating liquor, kept such liquor with the intent to sell it unlawfully and to justify the presiding judge in refusing to instruct the jury that the defendant should be acquitted of that oSence.</p> <p>On the trial of a complaint against a druggist with no license to sell intoxicating liquor, for keeping such liquor with intent to sell it unlawfully, where it appeared that certain casks of whiskey were found upon the premises, it was held to be right to instruct the jury upon the question of intent, that they might consider the amount of liquor found and all the circumstances under which it was found and if they came to the conclusion beyond a reasonable doubt that the liquor was kept with intent to sell it as a beverage they should return a verdict of guilty, otherwise, a verdict of not guilty.</p> <p>On the trial of a complaint against a druggist with no license to sell intoxicating liquor, for keeping such liquor with intent to sell it unlawfully, where it appeared that certain casks of whiskey were found on the premises under circumstances tending to show an intent to sell it unlawfully, it was held that it would have been error to instruct the jury that “ there is no inference of guilt to be drawn from the mere finding of intoxicating liquor in an unlicensed druggist’s store ” and that “ the presumption of law, on the contrary, is that such keeping is a legal keeping.”</p> <p>On the trial of a complaint for keeping intoxicating liquor with the intent to sell it unlawfully, a government witness who testified to watching the defendant’s store, and seeing men go in and out and clerks repeatedly come to the door and look up and down the street, on cross-examination declined to answer a question as to where he was hiding while watching the store. The judge refused to compel him to answer the specific question, but permitted questions as to how far away the witness was, whether on a level with the street and whether in a building or outdoors, and the witness answered that he was four or five hundred feet away on the second floor of a building looking through a closed window. Held, that the refusal to compel the defendant to disclose his hiding place was matter of discretion as to the regulation and restriction of the cross-examinatian, and moreover, as the defendant was permitted to follow up the subject by inquiring as to direction and distance, it did not appear that he had not pursued the examination as far as he desired, and if he still intended to insist on his alleged right to put the question as to the exact hiding place he should have renewed his objection to the exclusion of that question.</p>

<p>Deed, Construction. Boundary. Way.</p> <p>The words in a deed “ thence easterly by a way twenty feet wide nineteen rods ”, describing a boundary of the land conveyed on other land of the grantor, pass a right of way twenty feet wide, and this application of the ordinary rule of construction is not affected by the facts, that the measurement of the boundary preceding the word “thence” in the deed does not quite reach the twenty foot strip, that the way was not laid out at the time the deed was given, that it was not necessary to the grantee, that along the further side of the strip ran a ditch which made the strip less available for a way, that the end of the strip on the street was stopped by a wall and a gully, and that nothing was done for many years to make the strip available. And semble, that the other part of the general rule also applies, and that the above words pass the fee to the middle line of the twenty foot strip and no more, although the grantor’s land ended on the further side of the strip.</p>

<p>Writ of entry, dated June 1, 1901.</p> <p>In the Superior Court Sherman, J. found for the demandant; and the tenant alleged exceptions.</p>

<p>Tort, by a consignee of horses transported by the defendant, for personal injuries caused by falling from a platform attached to a freight house of the defendant at New Bedford alleged to have been unguarded by barriers and insufficiently lighted, while the plaintiff at night was looking for the car in which his horses had arrived. Writ dated November 15, 1900.</p> <p>In the Superior Court Fessenden, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract or tort against a carrier for damage to goods. Writ in the Third District Court of Bristol, dated May 22,1901.</p> <p>On appeal to the Superior Court the case was heard upon an agreed statement of facts by Braley, J., who made the following finding and ruling: “At the argument of this case upon the agreed facts, the counsel for the defendant asked me to rule, that the claim of the plaintiff being for goods carried as freight, the case of Moore v. New York, New Haven, <f* Hartford Railroad Go. 173 Mass. 335, did not govern, and stated that if I ruled that that case applied to lost goods carried as freight, as well as to lost goods carried as luggage, he had no defence to the action. No other question of fact or law was raised or argued.</p> <p>“ I rule that said case is the law governing this case and that there is no distinction between goods lost when carried as freight and those lost when carried as luggage, and find and order judgment for the plaintiff in the sum of $20.80.” The defendant appealed.</p>

Two ACTIONS OF tort, the first by Eliza L. Macy for personal injuries alleged to have been caused by the negligence of the defendant in the operation of its road, and the second by George I. Macy,. husband of Eliza, for loss of her services. Writs dated November 21, 1899.

<p>Practice, Civil, Exceptions, Order of trial, Decree. Devise and Legacy, Omission to provide for issue, Construction.</p> <p>Since St. 1880, c. 118, (R. L. c. 173, § 108,) imposing upon clerks of court the duty of presenting exceptions to the court, a party who has filed his exceptions seasonably does not lose his rights by a failure of the clerk to present the exceptions “ immediately on the filing ” as required by the statute.</p> <p>On an appeal from a decree of a probate court allowing the account of an executor, appellants claiming under Pub. Sts. c. 127, § 21, (R. L. c. 135, § 19,) as issue of a deceased child for whom the testator omitted to provide by accident or mistake, may be required by the presiding justice in his discretion to prove their locus standi by establishing not only that they are such issue but that they were omitted unintentionally, before going into matters relating to the account, although the burden of proof is on the executor to show that the omission was intentional.</p> <p>The scrivener who drew a will testified that the testator said “I want to give J.’s daughters four thousand dollars, but I shall not give it to them directly. I shall give it to A., their mother,” and, on being asked whether it would not be better ' to mention them by name in the will, said “ No, I have every confidence in A. that she will do the right thing.” Held, that a finding was warranted that there was no mistake and that an omission otherwise to provide in the will for the daughters of J. was intentional.</p> <p>Semble, that a bequest of the residue of an estate to the testator’s son with the requirement that he shall provide for the testator during the testator's life and “in consideration of such filial duties well and truly performed ” does not create a condition precedent.</p> <p>It is irregular to enter a decree while exceptions are pending.</p>

<p>Libel against Charles C. Stratton and John E. Kellogg, co-partners and publishers of the Fitchburg Daily Sentinel. Writ dated June 22, 1900.</p> <p>The case came up on appeal from an order of the Superior Court granting a motion to dismiss the action made by the defendant Kellogg on the ground that the defendant Stratton had died.</p>

<p>Conte,act upon an account annexed for the price of intoxicating liquors-sold to William R. Hunt, James R. Aylward and Robert Blaisdell, doing business under the name of W. R. Hunt and Company, between June 1, 1895, and May 1, 1896. Writ dated July 22, 1898.</p> <p>The answer of the defendant Blaisdell, besides a general denial, set up that the plaintiff sold and delivered the liquors to him knowing and having reasonable cause to believe that he intended to make an illegal sale of them and with a view to that end and to enable him to do so, that the liquors were in fact sold by him contrary to law, and that the sale by the plaintiff to the defendant Blaisdell was void. The other defendants filed no answers.</p> <p>At the trial in the Superior Court before Pierce, J., the following facts appeared : The plaintiff was a wholesale dealer in intoxicating liquors in the city of Boston, under a license granted to him by that city. In May, 1895, the city of Lynn granted a license to the defendants Hunt and Aylward. It appeared from the evidence that some time before the application for this license the defendant Blaisdell called upon Hunt and persuaded him to apply for a license, representing that if Hunt did not obtain a license Blaisdell’s business would go to pieces, and that he, Blaisdell, would provide money to pay the license fee. It appeared that Hunt and Aylward did apply for the license and that one Thomas F. Daly, a stepson of Blaisdell, produced $1,500 to pay the license fee. The license was granted to Hunt and Aylward doing business as W. R. Hunt and Company, and immediately thereafter a partnership was formed with Blaisdell, and a place of business was opened at the corner of Blake and Mulberry Streets in Lynn.</p> <p>It was stipulated by counsel at the trial, that the goods sued for were sold by the plaintiff and were received by W. R. Hunt and Company at their place of business in Lynn, and that there was no controversy as to the prices charged.</p> <p>The defendant Aylward was not in court, nor was he represented by counsel. The defendant Hunt was in court, being called as a witness by the plaintiff, but was not represented by counsel. The defendant Blaisdell was .represented by counsel, and upon the completion of the plaintiff’s testimony asked the judge to order a verdict for the defendants.</p> <p>The judge, stating that he already had offered to default the other two defendants, ruled that the plaintiff was not entitled to recover against any of the defendants, and ordered a verdict for all of the defendants. The plaintiff alleged exceptions.</p>

<p>Landlord and Tenant. Contract, Implied.</p> <p>Whether a tenant who has hired an entire house and entered it is in possession of the interior of a locked room of which the landlord has retained the key, quaere. A tenant hired an entire house.by a paroi lease and took possession. The attic was locked and contained goods belonging to the landlord. The tenant did not know this at first. Later he found it out and asked for the key and the use of the attic but never got either while he occupied the house. Held, that the landlord could not recover rent. ' The tenant having entered without knowing that the room was locked there was no waiver on his part and the landlord could not recover on the express contract because he had not furnished the stipulated consideration. Nor could he recover on an implied contract for the benefit actually received, because the failure to furnish the whole was due to his own wilful fault.</p> <p>One who by his wilful fault has failed to ftirnish a part of something which he has agreed to furnish under an entire contract cannot recover on an implied contract for the benefit actually received from the part furnished.</p>

<p>Practice, Civil, New trial. Jurisdiction.</p> <p>If after a verdict for the plaintiff in an action brought by the receiver of a foreign corporation, and after exceptions have been sustained, the writ and declaration are amended by the substitution of the name of the corporation for that of the receiver, and it appears that the amendment has not changed the issue tried or any question of evidence raised at the trial and there are no good grounds for a new trial, judgment may be ordered on the verdict.</p> <p>Where in an action originally brought by the receiver of a corporation, in which the defendant appeared generally, the writ and declaration are amended by substituting the name of the corporation for that of the receiver, the defendant cannot raise the objection that the defendant is a foreign corporation with no usual place of business in the county and that the trustee has been discharged by a bond which runs in favor of the original plaintiff. The court having acquired jurisdiction over the defendant by the original attachment and the general appearance, the allowance of the amendment effects no change in the jurisdiction.</p>

<p>Tort for injuries from falling down 'an elevator well in a tenement house of the defendants to which the plaintiff had gone for his washing, seeking the tenement of one Andrews. Writ dated February 14, 1900.</p> <p>In the Superior Court Maynard, J. ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p> Junk Dealer. </p> <p>One who has no shop, but buys, to sell again, from a certain number of carriage manufacturers the odds and ends i>f new iron left from larger pieces used in the manufacture of carriages and not available for that use, is not a junk dealer.</p>

Two actions OE tort as stated by the court. Writs dated June 29, 1900. In the Superior Court Pierce, J. refused to order verdicts for the defendant. The jury returned a verdict for the plaintiff in each case, in the first case in the sum of $1,500 and in the second case in the sum of $500. The defendant alleged exceptions.

<p>Way, Defect in highway.</p> <p>A road which is reasonably safe for travel of the ordinary kinds is not defective merely because it is not fit for use with bicycles.</p> <p>A stone, consisting of the top of a ledge protruding through the surface of a country road, six inches high, ten inches wide and fifteen inches in length running with the road, not in the wheel track but near it, and with sixteen feet of unobstructed path on one side of it, cannot be found to be a defect in the highway.</p>

<p>Tort for the conversion of manure. Writ dated June 7,1901.</p> <p>■ In the Superior Court Richardson, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Practice, Civil, Exception, Appeal.</p> <p>No exception lies to the refusal of a judge to stop a witness who is about to answer a question in regard to a conversation a part of which is competent. The judge may permit the question to be answered in order to determine whether the evidence is admissible or not, and after it is answered the objecting party can ask to have the portion that he objects to stricken out.</p> <p>No appeal lies from a judgment entered under R. L. c. 173, § 109, authorizing a judge to order judgment and award execution notwithstanding the allowance of exceptions.</p>

<p>' Contract, Implied. Mechanic’s Lien. Relation Back.</p> <p>An action for money had and received will lie when the plaintiff has an equitable title to money in the hands of the defendant.</p> <p>The plaintiff and his partner jointly held a mechanic’s lien on certain premises subject to a mortgage. After proper proceedings they got a decree of sale and a sale thereunder, at which the plaintiff purchased. The underlying mortgage then was foreclosed, the proceeds of the foreclosure sale being more than sufficient to satisfy the mortgage debt. After this the plaintiff received the deed representing his purchase at the lien sale, and sued the mortgagee for money had and received to recover the surplus proceeds of the foreclosure sale. Held, that the plaintiff was entitled to recover. By the lien sale the plaintiff got an equitable title to the premises subject to the mortgage, which by the foreclosure sale was transferred to the surplus proceeds, and the deed to the plaintiff, if necessary in order to give him the right to sue alone, related back to the time of the lien sale, the rights of the mortgagee not being affected injuriously by his being sued by one plaintiff instead of two.</p>

<p>Contract by an attorney at law for fees and disbursements, before the court at a previous stage as reported in 181 Mass. 377. Writ dated January 25, 1901.</p> <p>The character of the exceptions is stated by the court. In the Superior Court Bishop, J., being of the opinion that the exceptions were immaterial, frivolous and intended for delay, ordered judgment to be entered and execution to be issued, notwithstanding the exceptions. The defendants appealed.</p>

<p>Two ACTIONS by different plaintiffs against the same defendant under St. 1890, c. 437, § 2, (R. L. c. 99, § 4,) for margins paid on wagering contracts. Writs dated May 25,1901.</p> <p>In the Superior Court the cases were tried together before Sherman, J. The judge refused to order verdicts for the defendant, and the jury returned a verdict for the plaintiff in each case, in the first case in the sum of $944.35, and in the second case in the sum of $1,042.68. The defendant alleged exceptions.</p>

Two ACTIONS OF CONTRACT by the same plaintiff against different defendants each for an alleged breach of a recognizance by a poor debtor. Writs in the Municipal Court of the City of Boston dated respectively August 2 and July 26, 1901. 1 On appeal to the Superior Court both cases were tried before Bond, J., who refused to give the instructions requested by the defendants. The jury in each case returned a verdict for the plaintiff; and the defendants alleged exceptions.

<p>Petition, filed March 8, 1901, for a writ of certiorari to quash' the proceedings of the board of street commissioners of the city of Boston in making an assessment upon real estate of the petitioners under the south terminal act, St. 1896, c. 516.</p> <p>The case was heard by Morton, J. The respondents moved that the petition be dismissed, because of the decision of this court in 8'ears v. Street Commissioners, 180 Mass. 274. The petitioners asked the justice to disallow the motion, on the ground that the act above mentioned is in violation of the Constitution of the United States, and asked the justice so to rule. The justice refused to do so. The petitioners also asked the justice to disallow the motion, because the board of street commissioners omitted to make any finding as to the nature and amount of general advantage received by all real estate in the city from the location and construction of the Union Station, Summer Street, and Cove Street; and because the board had omitted to make any finding as to the nature and source of the benefit and advantage received by the real estate of the petitioners beyond that received by all real estate in the city of Boston from such location and construction, and asked the justice so to rule. The justice refused to do so, and dismissed the petition. The petitioners alleged exceptions.</p> <p>The petitioners did not argue or present a brief upon the points passed on by this court in Sears v. Street Commissioners, but contended, that, assuming the act to be constitutional as to the matters passed on in that case, the proceedings of the board of street commissioners had not been such that the assessments could be enforced without revision, and that revision could be secured only by certiorari.</p>

<p>Contract against an express company for money paid to it by the plaintiffs for goods shipped from France C. O. D. Writ dated July 1,1899.</p> <p>In the Superior Court Hopkins, J. ordered a verdict for the defendant on the count for money had and received, on which the plaintiffs elected to stand. The plaintiffs alleged exceptions, which after the death of Hopkins, J. were allowed by Richardson, J.</p>

<p> Guardian. Bond. </p> <p>Under R. L. c. 149, § 29, which through successive statutes is a re-enactment of St. 1786, c. 65, § 2, a creditor of a ward cannot maintain an action on the bond given by his guardian until the debt has been reduced to judgment.</p>

Two appeals from decrees of the Probate Court for the County of Nantucket, the first upon a petition of the executor under the will of John Murray for leave to sell real estate to pay debts, charges and legacies under that will, opposed by Harriet E. Murray, widow of the testator, on the ground that she had waived the provisions of the will and was entitled to all the real estate of the testator in fee, it being less than $5,000 in value, the second upon a petition of…

<p>Tort for the death and conscious suffering of the plaintiff’s intestate alleged to have been caused by the negligence of the defendant. Writ dated February 3, 1900.</p> <p>At the trial in the Superior Court before Graskill, J., the jury returned a verdict for the plaintiff on the fifth count of the declaration, for conscious suffering of the intestate, in the sum of $500, and on the sixth count, for the death, in the sum of $1,200, and found for the defendant on the other counts. The defendant alleged exceptions.</p>

<p>Complaint, received and sworn to April 10, 1900, for keeping oleomargarine with intent to sell it unlawfully.</p> <p>The defendant was arrested on a warrant issued from the District Court of Northern Berkshire. In that court a plea in abatement was overruled and the defendant was found guilty. On appeal to the Superior Court the case was tried before Aiken, J. It appeared that the complaint was received and sworn to before the clerk pro tempore of the District Court mentioned above, when that court was not in session, and that the clerk pro tempore issued a warrant of the District Court and not his own warrant for the arrest of the defendant. A plea in abatement setting forth these facts was overruled by the judge, who also denied a motion to dismiss made on the same ground.</p> <p>The jury returned a verdict of guilty; and at the request of the defendant the judge reported the case for determination by this court. If the rulings were right the verdict was to stand ; otherwise, the verdict was to be set aside and the defendant’s motion to dismiss was to be allowed.</p>

<p> Insurance, Life. Interpleader. Estoppel. </p> <p>A married woman took out an insurance policy upon the life of her husband which contained the provision “ that if, after the receipt by this company of not less than two or more annual premiums, this policy should cease in consequence of the non-payment of premiums then, upon a surrender of the same, the company will issue a new policy for the full value acquired under the old one ” and provided for the proportion of the face value which should constitute the surrender value to he represented by the new paid up policy. After the woman who took out this policy had paid premiums on it for more than two years, she gave it to her husband for safe keeping. He without her consent or knowledge surrendered the policy, and took in exchange a new policy payable to his legal representatives, which he assigned to another. The wife knew nothing of this policy until the death of the assured, when she brought an action on the first policy surrendered by her husband. Held, that she could not recover the face value of the policy, which liad been forfeited for non-payment of premiums, but that under the terms of the contract she was entitled to a paid up policy, representing the surrender value, which now would be payable.</p> <p>One, before accepting as security an insurance policy on the life of another person, went to the insurance company to inquire and was told that the policy was valid and could be assigned. The company assented to the assignment, which was made, and money was advanced upon it by the assignee. The policy had been substituted without authority for one previously taken out by the wife of the assured. In an action by the assignee on the policy, the defendant moved that the widow be required to interplead under St. 1886, c. 281. The trial judge denied this motion and found for the plaintiff Held, that this was not a ease for interpleader, one liability not being an alternative of the other. Whether the substitution was invalid or not as to the widow did not matter as affecting the liability of the company to the assignee, as a finding was justified that the defendant as to him was estopped to deny the validity of the policy on which he advanced his money.</p>

<p>Easement, Right to support and shelter.</p> <p>If the owner in severalty of one half of a double house has acquired by grant or otherwise a right of support and shelter on the dividing line, his right is ended when a board of health by a lawful order compels the destruction of the other half of the building, and he has no remedy against the adjoining owner who has obeyed such command.</p>

<p> Railroad. </p> <p>The tender of a locomotive is not a car within the meaning of St. 1895, c. 362, § 2, (R. L. c. Ill, § 203,) requiring cars to be equipped with automatic couplers.</p>

<p>Petition, filed March 13,1899, under St. 1896, c. 516, § 23, making applicable Pub. Sts. c. 112, §§ 95, 100, to recover damages for injury to certain land of the petitioners on Lehigh Street in Boston caused by the acts of the Boston and Providence Railroad Corporation in raising the grade of Lehigh Street, beginning at a point twenty-five feet from the petitioners’ land between that land and Albany Street.</p> <p>In the Superior Court the case came on to be heard before Fessenden, J., upon an auditor’s report. The judge ruled fro forma that the petitioners could not recover, ordered judgment for the respondents, and reported the case for determination by this court, such order to be made therein as this court should direct.</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>Practice, Civil, Parties. Estoppel.</p> <p>There can be no recovery on a contract under seal against a person not a party to it.</p> <p>The plaintiff constructed a building on land of the defendant and for the defendant’s benefit, but under a contract under seal with a third person, the defendant from time to time making the payments required by the contract. The plaintiff having filed a mechanic’s lien on the property and being about to file a petition to enforce it, the defendant gave to the plaintiff a bond to dissolve the lien and prevent the filing of the petition. The bond recited that the third person, who • made the contract with the plaintiff, was the agent of the defendant in making the contract and in constructing the building, and that there were disputed items, and the condition of the bond in substance provided that, if anything was found due to the plaintiff either under the contract with the third person or otherwise, the defendant was liable for it and should pay it. In an action for a balance due for the construction of the building, it was held, that although the plaintiff could not recover on the contract under seal to which he was not a party, yet the defendant was estopped by the bond and the recitals contained in it, and the circumstances under which it was given, to deny his liability for anything that should be found due to the plaintiff on account of the construction of the building, and that the plaintiff could recover the balance due to him on a count upon an account annexed.</p>

<p>. Contract for work and labor. Writ dated April 20, 1900.</p> <p>In the Superior Court the case was tried before Hardy, J. The judge ordered a verdict for the defendant Clark W. Holcomb. The jury returned a verdict for the plaintiff against the defendant Henry A. Holcomb in the sum of $565.61, and at the request of the parties the judge reported the case for determination by this court. If the rulings were correct the verdict was to stand; if the defendant Henry A. Holcomb was entitled to-avail himself of his discharge in bankruptcy, under the circumstances which are stated in the opinion of the court, the verdict was to be reduced to the sum of $39.47.</p>

<p>Tort for flowing the plaintiff’s land. Writ dated November 20, 1900.</p> <p>The case was tried in the Superior Court before Hardy, J. The defendant claimed the right to flow the land under the deed of one Patrick Luddy, dated November 2, 1886, when the title to the land stood in the names of Patrick Luddy and of his wife, who did not join in the deed. The land had been conveyed by one Faxon on October 18, 1883, to Patrick Luddy and Katherine Luddy his wife. After the death of Patrick his widow Katherine conveyed the premises to the plaintiff.</p> <p>The judge refused to give the rulings requested by the defendant. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Evidence, Admissions. Contract.</p> <p>An offer of compromise is not admissible as an admission of liability.</p> <p>Upon the issue of the terms of an oral contract, the question is not what the respective parties understood the contract to be, but what they ought to have understood it to be in view of what was said and done, under the circumstances in which they were placed.</p>

<p>Negligence, Employer’s liability, Contributory.</p> <p>If the owner of an unfinished ice house causes tie beams and uprights, which are to form part of it, to be used as the support of a temporary flooring for workmen to stand upon in putting up the rafters for the roof, and if he personally with the assistance of a workman places the uprights under the beams, and one of the uprights is spliced so as to be a dangerous appliance, he may be found to be liable for an injury to one of his workmen ignorant of the splice, caused by the splice breaking and the platform in consequence giving way.</p> <p>Whether a workman assisting in laying the temporary flooring of a staging, on which he is about to work, is. negligent in failing to satisfy himself of the sufficiency of the uprights supporting the structure, which were placed by his employer personally, his employer being present and in general charge when the temporary flooring is laid, or whether he is justified in relying upon his employer as to what the latter has done in person, is a question of fact for the jury. So is the question whether the injured workman assumed the risk of such an injury.</p>

<p>Disseisin. Adverse Possession. Boundary. Deed, Construction.</p> <p>Discussion by Loking, J. of the respective rights of owners of adjoining lots of real estate where the line of occupation for a period of twenty years has been other than the deed line, including the questions whether the possession has been adverse and whether rights outside of the paper title acquired by adverse possession have been transferred.</p> <p>The fact, that the predecessors in title of an owner of real estate acquired by adverse possession a title to a strip of land extending beyond the boundary line as defined by their deeds, does not give the present owner any right or title to the strip, not included in the deed to him, unless the possession of his predecessors has been transferred to him.</p> <p>The land of an adjoining proprietor is a monument within the rule that monuments govern measurements in a deed, and semble, that if such a monument is changed by adverse possession the deed line changes also.</p> <p>The court in construing a deed or succession of deeds in a chain of title to land, where a new division line has become established by adverse user, will adopt a liberal construction to avoid holding that title to the land covered by the adverse user has become separated from the title to the original lot.</p>

Tort for personal injuries caused by the plaintiff slipping on an accumulation of ice and snow on the step of a car of the defendant while alighting therefrom. Writ dated March 15,1901.

<p>Negligence, Contributory.</p> <p>A child who is playing in the street has a right not to be run over through the negligence of a traveller, if the child is in the exercise of due care.</p> <p>A mother allowing a child eight years old to go out with her older sister to play in the yard of the house where she lives is not guilty of contributory negligence if the child at the suggestion of her older sister leaves the yard to play in the street and there is run over.</p> <p>A girl eight years old who was standing in the gutter of a street when struck by a horse and wagon driven at a fast trot on the left side of the road may be found to have been in the exercise of due care if she turned around and started to run away as soon as she saw the horse coming.</p>

Contract for breach of an agreement in writing concerning certain mining rights in Nova Scotia. Writ in the Municipal Court of the City of Boston dated October 12, 1901. On appeal to the Superior Court the case was tried before Maynard, J., who ordered - a verdict for the defendants. The plaintiff alleged exceptions.

<p>Contract for $1,000 alleged to be due the plaintiff for salary as salesman of the defendants for one year beginning January 5, 1899. Writ dated March 14, 1900.</p> <p>In the Superior Court Mason, C. J. ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Contract on an alleged oral contract of insurance upon the life of William J. Cameron, the plaintiff’s intestate. Writ dated April 2, 1895. The case was tried in the Superior Court before Fessenden, J. At the close of the plaintiff’s case, the judge ruled that upon all the evidence the plaintiff was not entitled to recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.

<p>Practice, Civil, Discontinuance, Assessor’s report.</p> <p>Where, in an action against the principal and sureties on a guardian’s bond, there has been a finding for the plaintiff and an assessment of damages in the amount of the penal sum of the bond, and the case has been sent to an assessor to determine the sum for which execution should issue, and the assessor has filed his report, and a motion to confirm the report has been made but not acted on, and there also is pending a motion for an amendment, the case is not ripe for judgment under Buie 25 of the Superior Court, and, there having been no judgment, the presiding judge under Pub. Sts. c. 167, § 42, may allow the plaintiff to discontinue as against one defendant.</p> <p>Where, on a motion to recommit the report of an assessor as to the amount for which execution should issue after a finding for a plaintiff in the amount of the penal sum of a bond, no error appears on the face of the report, and there has been no request to the assessor to state evidence, to make rulings of law or to find specific facts, and no exceptions to the report have been filed, the motion to recommit should be dismissed and an order should be made confirming the report.</p>

<p>Two petitions, filed December 24, 1897, and January 3, 1898, respectively by the New England Telephone and Telegraph Company and the Boston Electric Light Company against the Boston Terminal Company, for assessment of damages under St. 1896, c. 516, § 23.</p> <p>The first case was submitted in the Superior Court upon an agreed statement of facts to Bell, J., who found for the respondent and reported the case for determination by this court. If his finding was justified by the agreed facts, judgment was to be entered for the respondent; otherwise, the case was to stand for trial. In the second case, the Superior Court found for the respondent upon agreed facts; and the petitioner appealed.</p>

<p> Voluntary Association. </p> <p>A change in the constitution of a voluntary association is not made invalid by a failure to follow the exact formalities required by a by-law, the purpose of which is to provide against changes without full notice to the members of the action proposed, if the substance of the by-law was complied with and its essential spirit observed.</p>

<p>Master and Servant. Corporation, By-law.</p> <p>If a corporation, holding a lease of a building, executes an assignment of the lease to trustees, under authority of a vote in proper form, giving to the trustees full power and authority to hold, manage and control the building for the remainder of the term upon certain trusts named, and the trustees enter under the assignment and assume control of the building, a janitor of the building employed by the trustees is not the servant of the corporation, and the corporation is not liable for an injury caused by his negligence.</p> <p>A by-law of an incorporated art students' association provided, that the legal title to its property should be in the board of government " except that the title to any real estate which may be acquired may be taken and held by trustees appointed for the purpose by the association.” The corporation, holding a lease of a building for fifteen years, assigned the lease to certain trustees giving them exclusive control of the building during the remainder of the term. In an action against the corporation for injuries caused by the negligence of a janitor of the building appointed by the trustees, it was held, that the defendant having assumed to make an assignment which all parties treated as valid, and the ' trustees under it having managed and controlled the building with the defendant’s consent, and having appointed the janitor, he was their servant and not the servant of the defendant, whether the defendant had the right to make the assignment or not, and, semble, that, if it had been necessary to construe the by-law, it might be that, in view of the purposes and conduct of the defendant before and after the assignment, the words “title to any real estate ” could be construed to mean the title or interest that the corporation might acquire in real estate owned by another, and so to include a term for fifteen years which could not in itself be real estate.</p>

<p>Pleading, General denial. Judgment, When a bar.</p> <p>In an action for goods sold and delivered the defendant may sho.w under a general denial that the goods were bought upon a credit that had not expired when the action was brought.</p> <p>Where a former judgment in favor of the .defendant for the same cause of action is set up in bar of an action for goods sold and delivered, the plaintiff may show that the goods were sold upon a credit which had not expired when the former action was begun, and that the judgment was entered for the defendant in the former action solely on the ground that it was prematurely brought.</p> <p>Whether oral evidence would be admissible to show that a former judgment was given solely upon an issue which strictly could not have been tried upon the pleadings as they stood, but which in fact was tried with the assent of all parties, qurnre.</p>

<p>Way, Defect in highway.</p> <p>A gravel heater left standing unused for a week in the gutter of a street of a city, with its handle raised and tied to the smoke stack by a rotten and unsafe wire, may he found to he a defect in the highway for which the city is liable to a traveller who is injured by the handle falling upon him as he is crossing the street in the exercise of due care.</p>

<p>Negligence, Employer’s liability, Ways, works and machinery, Superintendence.</p> <p>An employer is not liable for the injury or death of a workman caused by the breaking of a chain, bought by the employer from a reputable firm, from its being overloaded by the workman’s fellow servants.</p> <p>It is not negligence on the part of a superintendent to leave to the men working under him the loading of a chain by which planks are hoisted in the construction of a building, and if the workmen, seeing that the planks are wet and on that account much heavier, negligently load the chain with the usual number of planks and the chain breaks from overloading, the negligence of the workmen cannot be imputed to the superintendent.</p>

<p> Insurance, Life. </p> <p>Former decision in this case affirmed, that, although a policy of life insurance is avoided by a material understatement of age by the assured, under St. 1894, c. 522, § 21, a false statement by the assured as to his age does not avoid the policy unless it is made with intent to deceive or increases the risk. Now, after a new trial, held, that conflicting evidence as to whether the assured made a material understatement of his age properly was left to the jury.</p>

<p> Joint Tenants and Tenants in Common. Waste. </p> <p>Under Pub. Sts. c. 179, §§ 6, 7, a tenant in common oí a wood lot can recover from a cotenant, who has cut and carried away wood from the lot without giving notice to the plaintiff, three times the amount of the damage to the whole lot, irrespective of the amount of the plaintiff’s interest, the damage to be appropriated as provided in § 7, one half to the plaintiff and the other half to - all other cotenants except the defendant.</p>

<p> Bills and Notes. Alteration of Instruments. Limitations, Statute of. Mortgage. Damages. </p> <p>An indorsement on a mortgage note by a purchaser of the equity of redemption, agreeing to pay a higher rate of interest, made without the knowledge or consent of the maker of the note, does not bind the maker and is not an alteration of the note.</p> <p>Pub. Sts. c. 197, § 6, exempting from the six year period of limitation an action on a witnessed promissory note if the action is brought by the original payee or by his executor or administrator, applies to an action brought in the name of; the executor of the original payee with the executor’s consent.</p> <p>In an action against a mortgagor upon the mortgage note for the balance due after a foreclosure sale, where the defendant was not the owner of the equity at the time of the sale, he can show in reduction of damages, that the sale was not conducted as it should have been and that more should have been realized, especially if the holder of the mortgage was the purchaser.</p>

<p>Negligence, Contributory, Employer’s liability, Superintendence.</p> <p>If an experienced lineman, engaged with others in stringing a trolley wire at the end of the horizontal arm or bracket of a supporting pole, makes use of a ladder leaning against the wire in such a way as to bring the greatest strain upon the bracket, instead of placing the ladder against the wire as nearly upright as safely can be done in order to relieve the strain on the wire and bracket as much as possible, and if he then mounts to the top of the ladder above the wire and leans over to pull out an iron spindle which has been inserted in the end of the bracket to make more purchase in pulling up the wire, and extracts the spindle by pulling it away from him, thus subjecting the bracket to a strain it was not constructed to withstand, whereupon the bracket breaks and throws the lineman to the ground, he is not in the exercise of due care, and cannot recover from his employer for injuries thus sustained.</p> <p>If one of a gang of four linemen, engaged in the common work of digging holes, setting poles, putting on brackets and stringing wires, receives the same wages as the others and does the same work, but owing to his greater experience acts as foreman of the gang and gives such directions as the nature of the work requires, both when his employer is present and when he is not, this does not make him a person whose sole or principal duty is that of superintendence.</p>

<p>Contract, Performance and breach, Constrnction.</p> <p>The plaintiff agreed to construct a passenger elevator in the defendant's building with a ten horse power motor, wound for five hundred volts “ to be left in satisfactory running manner ” for a price named. Held, that this contract was performed by the plaintiff furnishing a suitable elevator of ten horse power, and that it was no defence to an action for the price, that a motor of fifteen horse power was needed to make the elevator satisfactory for the uses to which the defendant desired to put it.</p>

<p>Tort for jamming the plaintiff’s finger by opening the sliding door of a car of the defendant, against which the plaintiff was resting his hand to steady himself, before the car had come to a full stop. Writ in the Municipal Court of the City of Boston dated November 12, 1901.</p> <p>On appeal to the Superior Court the case was tried before Maynard, J. At the close of the plaintiff’s case the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Petition, filed January 31,1900, under Pub. Sts. c. 49, §§ 79, 105, for determination by a jury of damages for the taking of eighty-four square feet of the petitioner’s land for the laying out of Crescent Avenue, a town way in the town of Revere. At the trial in the Superior Court before Wait, J., the jury returned a verdict for the petitioner in the sum of $735; and the respondent alleged exceptions.

<p>Tort for damages paid by the plaintiff town to one Susan M. Atherton for an injury from a defect in a sidewalk alleged to have been caused by the negligence of the defendant. Writ dated August 15,' 1900.</p> <p>The trial in the Superior Court before Sheldon, J., took the course described in the opinion. The jury returned a verdict for the defendant in the manner described in the opinion; and the plaintiff alleged exceptions.</p>

Tort by a woman fifty-four years old for Injuries caused by her skirts being caught on a bolt in a coupling of a revolving shaft in the shoe factory of the defendant in which she was employed. Writ dated March 16, 1901. In the Superior Court Fessenden, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.

<p> Fire District. Elections. Estoppel. </p> <p>A warrant in writing for a meeting of a fire district signed by the chief engineer is a sufficient compliance with the provision of R. L. c. 32, § 55, that such a meeting shall be called when requested in writing by the chief engineer.</p> <p>An act creating a fire district provided that it might “ adopt by-laws prescribing by whom and how meetings may be called and notified.” One of the by-laws of the district provided that “ the annual meeting shall be called according to law.” The district passed a vote requiring copies of the warrant calling a meeting to be posted at various places named, but this vote did not operate as an amendment to the by-law because not adopted in the manner required for such an amendment. A meeting of the district was notified in accordance with R. L. c. 32, § 65, but the vote requiring the posting of copies of the warrant was not complied with. Held, that the meeting was notified properly "according to law” as required by the by-laws.</p> <p>Under R. L. c. 32, § 55, if a declaration by the moderator of a meeting of a fire district is necessary in order to complete an election of an officer, a declaration made by tellers in the presence of the moderator and received by the meeting is a declaration by the moderator within the meaning of the statute.</p> <p>Semble, that where oral evidence of the doings of a meeting of a fire district has been put in without objection, it is too late to take the ground that the declaration by the moderator of the vote of the meeting must appear by the records of the clerk alone, but, if such a record is required, a record stating, that there was a declaration of the election accepted by the meeting, imports a declaration by the moderator, if such a declaration is necessary.</p> <p>If one who has been declared elected chief engineer at a meeting of a fire district is present at a recount, to guard his interests, he is not estopped thereby from setting up the illegality of the recount.</p> <p>Where, as in case of the election of a chief engineer by a fire district under R. L. c. 32, § 54, there is no provision for a recount, the original count is final. In such a case the clerk should destroy the ballots, and, if illegally he preserves them, they cannot be used to invalidate the election.</p>

<p>Equity Pleading and Practice, Costs, Master’s report.</p> <p>In contemplation of law the taxable costs prescribed by the Legislature are full indemnity for the expenses of a suit.'</p> <p>A finding made by a master at the request of one party to a suit and prejudicial to the interests of the other party, but not material to any issue involved in the suit, is ground for sustaining an exception to the master’s report.</p>

<p>Equity Pleading and Practice, Coats.</p> <p>An appeal, by a plaintiff from a decree in his favor on a bill to redeem, because the decree did not give him costs, no ground being shown for his contention, was dismissed with double costs to the defendant from the time when the appeal was taken.</p>

<p>Equity Pleading and Practice, Discontinuance. Grade Crossing.</p> <p>The rule, that a bill in equity can be discontinued as of right, only obtains where no person other than the plaintiff has an interest in the maintenance of the suit.</p> <p>A petition filed by the directors of a railroad company under St. 1890, c. 428, § 1, for the abolition of a grade crossing between the railroad of the petitioner and a highway of a town, after commissioners have been appointed and the town has appeared, cannot be discontinued by the petitioner as of right.</p>

<p>Bill in equity, filed in the Superior Court December 13, 1900, to enjoin the enforcement of a judgment in an action at law.</p> <p>In the Superior Court Braley J. overruled a demurrer to the bill, and made the final decree which is stated in the next to the last paragraph of the opinion. The defendant appealed.</p>

<p>Bill in equity, filed in the Superior Court August 6, 1901, to redeem, or for a reconveyance of certain real estate on the payment of certain indebtedness of the plaintiff to the defendant.</p> <p>Upon a hearing on a master’s report and exceptions thereto the Superior Court overruled the exceptions and confirmed the report, and, in accordance with the findings of the master, ordered that the plaintiff pay to the defendant within ninety days the sum of $9,702.43 with interest thereon from June 24, 1901, and that thereupon the defendant reconvey to the plaintiff the real estate described in the bill, or, if the plaintiff should fail to pay the sum named within the required time, that the bill should be dismissed.</p> <p>The plaintiff appealed, stating as grounds of appeal, that the Superior Court had failed to sustain the plaintiff’s exceptions to the master’s report, and had denied the plaintiff’s motion to send the report back to the master with instructions to the master to report the evidence, if any, upon which certain findings of fact by the master were based, and that the plaintiff was aggrieved by the final decree.</p>

<p>Tort, by an employee in the defendant’s paper mill, for injuries from the fall of a step ladder on which the plaintiff was standing while at work, owing to the splitting of a cleat, nailed to the floor to prevent the ladder from slipping and alleged to have been nailed insufficiently. Writ dated October 22, 1900.</p> <p>In the Superior Court Mason, C. J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort, at common law, for personal injuries while in the employ of the defendants. Writ dated October 7, 1899.</p> <p>In the Superior Court Pierce, J. ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Two ACTIONS OF tort, the first by Josephine Lee for personal injuries alleged to have been caused by the negligence of the defendant, and the second by George Lee, the husband of Josephine, for loss of her services. Writs dated October 31, 1899. At the trial in the Superior Court before Pierce, J., the following facts appeared in addition to those stated by the court: The conductor said nothing to the plaintiff as she left the car.

<p>Contract for money had and received for taxes paid under protest alleged to have been assessed illegally on real estate of the plaintiff on May 1, 1901. Writ dated January 29, 1902.</p> <p>In the Superior Court the case was heard by Mason, C. J., who refused to rule as matter of law that the plaintiff was entitled to recover. He found for the defendant, and by agreement of parties reported the case for determination by this court. If the ruling requested should have been made, judgment was to be entered for the plaintiff in the sum of $327 with interest from January 7, 1902; otherwise, judgment was to be entered for the defendant.</p> <p>The facts stated by the report were as follows: The real estate in question consisted of a lot of land on Beacon Street in Boston with a house thereon containing about eighteen rooms, to which the plaintiff acquired title by deed on April 30, 1901. The amount paid for the property was contributed by graduates of the Massachusetts Institute of Technology. The plaintiff corporation was organized in 1896 under Pub. Sts. c. 115. The purpose of the corporation, expressed in its certificate of incorporation, “is to encourage and pursue literary and scientific work, and to provide for its members a place for holding literary and scientific meetings, and to provide for its members, while they shall continue to be students, a place for study.” Article 3 of the by-laws provides that active members shall be students who are members of the Phi Beta Epsilon Fraternity of the Massachusetts Institute of Technology, and that active membership shall cease upon a member ceasing to be a student at the Institute of Technology.</p> <p>The building and rooms were arranged and furnished for the purpose of being used as dormitory, kitchen, dining room, rooms for study, receptions and lectures, and one large room for a library. The library consisted principally of scientific books, among the rest upwards of a thousand volumes formerly owned by the late General F. A. Walker, the former president of the institute, and given to the plaintiff for its use by his widow. The building was used exclusively by students of the institute, for the above purposes, for meetings for debating and the practice of parliamentary law, for lectures, and for the reading of essays on literary and scientific subjects. Receptions occasionally were given,. which were attended by the president and members of the faculty of the institute; and members of the faculty and others gave lectures from time to time to the students, but these lectures did not constitute any regular part of any course of study established by the institute.</p> <p>The property was not occupied on May 1, 1901, but was purchased with the purpose of removal thereto, and was first occupied by the corporation in the autumn of 1901. One person, a graduate of the institute of some years standing, was appointed by the corporation to lodge at the building for the purpose of exercising a general oversight over the property and the conduct of the students in possession of it, and with a view of exercising such beneficial influence on the students as naturally would be exercised upon them by a person of more mature years. The amount paid by the student members to the plaintiff corporation for the use of the building was fixed at such amount as should be necessary to maintain the building and pay the interest on incumbrances. No income or profit was divided among the members. The student members had entire charge of furnishing food and servants and of managing the building, and the expenses were assessed upon and paid by the active members who enjoyed the privileges of the house at cost. The plaintiff corporation did not itself provide any teachers or instruction, except to the extent and in the manner above mentioned. It was admifcted that the Massachusetts Institute of Technology is a literary and scientific corporation.</p>

<p>Deed, Acceptance. Contract, Making.</p> <p>A deed from a landowner, conveying land to a city for the construction of a street, and containing a provision making it a condition of the acceptance of the deed that no betterments shall be assessed, on any land of the grantor for the construction of the street, can be found to have been accepted by the city, if there is evidence, that the deed was delivered to the street commissioners who sent it to the city auditor, that he received it, sent it to be recorded and paid the registration fee, that thereafter it was returned to him and he had ever since retained it during a period of six years, and that it was listed upon the records of deeds belonging to the city in the office of the auditor, and where also it appears, that at the time the deed was given it was and long had been the custom of the street commissioners to take such deeds, and that in dealing with this deed the usual course was taken,</p>

<p>Contract for professional services. Writ dated October 27, 1900.</p> <p>At the trial in the Superior Court Mason, C. J. gave the instructions quoted in the opinion. The jury returned a verdict for the plaintiff in the full amount claimed; and the defendant alleged exceptions.</p>

<p>Evidence, Admissions and confessions.</p> <p>The fact that an officer to whom'a confession was made gave the prisoner twenty-five cents and some pieces of tobacco, is no reason for excluding the confession, if the presiding judge found and was justified in finding that the gift was made some time after the confession and not before.</p> <p>The mere fact that a defendant was under arrest when a confession was made is no ground for excluding it.</p>

<p>Contract by a real estate broker for a commission alleged to be due to him for effecting an exchange of a house belonging to one Lewis J. Bird for a yacht belonging to the defendant. Writ dated June 14, 1902.</p> <p>In the Superior Court the case was tried before Wait, J., without a jury. The judge refused the defendant’s requests for rulings, and ruled in substance that on the facts shown there was an implied obligation on the part of the defendant to pay the plaintiff the commission claimed by him. He found for the plaintiff in the sum of $153.67; and the defendant alleged exceptions.</p> <p>In addition to the facts stated by the court the following only are necessary : Smythe, referred to near the end of the opinion, was a person not a broker who acted as the defendant’s agent in the transaction. Barton, the plaintiff, testified that on one occasion Smythe called him up on the telephone and said “ I want you to hurry that matter up. It is hanging, and if it don’t go through before a certain time, I shall call it off. I want you to look out for my interest in the matter.” Smythe, called as a witness for the plaintiff, admitted that he said he wanted Barton to hurry things up, but not particularly in his interest, that his purpose in hurrying the matter was due to the season being late, and that he had another customer who was negotiating for the boat.</p>

<p>Tort against the owner of a house on Pembroke Street in Boston, leased by the plaintiff as a dwelling and boarding house, thereto induced by the alleged false and fraudulent representations of the defendant’s agent, that the premises were habitable and in good condition and that the plumbing and sewer connections were perfect and all right, further alleging, that by reason of the defective condition of the plumbing and sewer connections the plaintiff was made ill and suffered loss and damage, with two other counts now immaterial. Writ dated October 21, 1898.</p> <p>At the trial in the Superior Court Sheldon, J. refused to order a verdict for the defendant or to give the instructions requested by the defendant, and allowed the case to go to the jury on the first count, the substance of which is stated above. The jury returned a verdict for the plaintiff in the sum of $5,634.64; and the defendant alleged exceptions.</p>

<p> Fence. </p> <p>The part of a stone wall assigned by fence viewers to one of two owners of adjoining lands, to keep in repair, lawfully may be taken down by him for the purpose of repairing it or of replacing it by some other lawful partition fence.</p>

Petition, filed in the Probate Court for the County of Suffolk April 13, 1901, by Mary A. Lufkin, to be appointed administratrix of the estate of Richard Lufkin, late of Chelsea, alleging the petitioner to be the widow of the intestate. On appeal to this court the case was tried before Loving, J., who submitted issues to a jury. The jury answered the three following issues in the affirmative : “1.

<p>Bill in equity, filed in November, 1901, under Pub. Sts. c. 16, § 64, (B. L. c. 6, § 77,) to enforce a claim, against funds retained by the Commonwealth under a contract made by the metropolitan water board with one McNeil, for the price of lumber furnished to the defendants Harries and Letteney, subcontractors, who agreed to furnish the material for and to construct all the concrete foundations and arches required under McNeil’s contract with the Commonwealth for the construction of a pumping station and gate house at Spot Pond in Stoneham.</p> <p>In the Superior Court the case came on to be heard before Fox, J., who reserved it upon the pleadings and a master’s report for determination by this court.</p>

<p>Practice, Civil, Construction of agreement as to issues for jury.</p> <p>On the question what credits should be allowed to a respondent against whom a petitioner had established a mechanic’s lien, it appeared, that six notes had been given by the respondent to the petitioner, that one of them had been paid by the respondent before the petition was filed, that the other notes had been disposed of by "the petitioner and at maturity had been renewed by the respondent, that upon one or two of these renewals payments had been made by the respondent, and that one of the renewal notes had been proved by the holder against the estate of the respondent in bankruptcy. The trial judge submitted to the jury six issues, one as to each of the notes, each consisting of the single question whether the petitioner accepted the note in payment or part payment of his claim. The parties agreed in writing, that all questions not submitted to the jury should be tried before the judge alone. The jury answered “No” to each of the six questions. The respondent then sought to raise the question as to each note and its renewals whether, if not originally given and received in part payment, it should not be credited to the respondent by reason of subsequent transactions. The judge refused to allow the question to be raised, and found for the petitioner for the full amount claimed. Held, that the ruling was erroneous; that the agreement of the parties fairly construed meant, that if the jury found on each issue for the respondent there would be no need of further inquiry, but if they found that the notes or some of them originally were not received in part payment then the question, whether there should be credits by reason of subsequent transactions, was left open to be dealt with by the judge.</p>

<p> Will. Burden of Proof. </p> <p>In this case, where the judge had fully and clearly instructed the jury that the burden of proof was upon the executor offering a will for probate to show by a fair preponderance of evidence that the testator was of sound mind and capable of making a will, it was held, that there was nothing in another part of his charge, relating to the effect of delusions upon testamentary capacity, which contradicted or qualified the above correct instruction.</p>

<p>Equity Jurisdiction, Plaintiff’s conduct.</p> <p>If, after the death of an intestate leaving certain land as his only property, his son and widow make a mortgage of this land, the proceeds of which are used to pay debts of the estate, one who, knowing of the mortgage, procures from the son as administrator a deed of the land under a sale ordered by the Probate Court to pay debts, the order being, obtained without notice to the mortgagee and on a representation that the son is the only person interested, paying a price based on the value of the land after deducting the amount of the mortgage, cannot maintain a bill in equity to have the mortgage cancelled as a cloud upon his title.</p>

<p>Bill in equity, filed April 15, 1902, by the trustees under a certain deed of trust from Joseph S. Leavitt to William D. Pickman and Joseph S. Fay, trustees, dated March 31, 1847, and supplemental deeds, praying for instructions as to the conveyance of the trust estate, the trust under the deed otherwise having terminated upon the death of Catherine S. Fay on November 26, 1901.</p> <p>The case came on to be heard on the bill and- answers before Loving, J., who at the request of the parties reserved it for determination by the full court, such decree to be entered as justice and equity might require.</p>

<p>Bill in equity, filed October 27, 1902, to restrain the defendant from erecting a building within five feet of Hartwell Street and four feet of Cheney Street in Boston, in violation of a restriction in a certain deed dated July 23, 1879, requiring all buildings to be set back at least twenty feet from the lines of those streets, to which the defendant’s land was alleged to be subject.</p> <p>A single justice of this court made a decree dismissing the bill with costs. The plaintiff appealed.</p>

<p>Negligence, Contributory.</p> <p>In an action by an administrator for the death of his intestate, who was run over and killed by an electric car of the defendant, if it appears, that the intestate was not seen for several minutes before the accident, was last seen alive on one side of the road, and was found dead on the other side lying across the track after the car had struck and killed him, so that the manner in which he got on the track and under the car is purely conjectural, there is no evidence to go to the jury that the plaintiff’s intestate was in the exercise of due care at the time of the accident.</p>

<p>Tort by a workman in a cotton mill, under St. 1887, c. 270, § 1, for personal injuries. Writ dated October 12, 1900.</p> <p>In the Superior Court Mason, O. J. refused to order a verdict for the defendant. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability, Contributory. Evidence, Materiality, Experts.</p> <p>In an action for the death of the plaintiffs intestate caused by the falling of a bank of earth which the intestate was undermining with a pick, it appeared, that the method of excavating used was unsafe unless the men at work were watched and warned when the bank was about to fall, that a superintendent was in the habit of giving such warning, and that when the accident happened this superintendent had left his post and had gone to a point forty-five feet distant, without telling any one he was going away or giving any warning. Held, that there was evidence of negligence of the superintendent to go to the jury.</p> <p>It is not, as matter of law, want of due care for a laborer working with a pick on a horizontal undercutting, intended to make a section of a bank of earth fall, to work on one or both knees instead of on his feet, in order to use his pick more effectively.</p> <p>A laborer working with a pick on a horizontal undercutting, intended to make a section of a bank of earth fall, does not assume the risk of a superintendent failing to give a customary warning when the earth is about to fall.</p> <p>If a preliminary question, too broad in form, is narrowed to a material inquiry by the question to which it leads, it cannot be objected to as calling for immaterial matter.</p> <p>Where an expert has heard the evidence as to the way in which certain work was being done at the time of an accident, and there is no conflict in regard to it, it is not error, as matter of law, for the presiding judge to allow the expert to give an opinion founded on the evidence as heard by him, instead of requiring a hypothetical question.</p>

Contract by a commission dealer in bricks and other building materials, against a manufacturer of bricks, for failure to deliver five hundred and fifty thousand bricks under an alleged agreement. Writ dated September 9, 1901.

<p>Tort by a freight brakeman for injuries received while at work in the freight yard of the defendant at Taunton. Writ dated February 4, 1898.</p> <p>In the Superior Court Sherman, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract, under Pub. Sts. c. 84, § 14, for $60 paid by the town of Palmer for the relief of one Mary A. Walker, alleged to have a lawful settlement in the town of Hampden, when she stood in need of immediate relief. Writ dated May 1,1901. In the Superior Court the case was tried without a jury by Maynard, J., who found for the plaintiff, and assessed damages in the sum of $62, The defendant alleged exceptions.

<p>Equity Pleading and Practice, Appeal. Fraud, As against creditors.</p> <p>On an appeal in equity a decree will not be reversed in matters of fact unless clearly erroneous.</p> <p>If one, to whom an equity of redemption in certain land has been conveyed by a quitclaim deed as security for a certain note of the grantor, conveys the equity to the wife of the grantor as a wedding present, and later cancels the note, and there is no evidence as to the value of the equity or to show that it exceeded the amount of the cancelled note, the conveyance of the equity to the wife can be found to be good as against the creditors of her husband.</p>

<p> Damages. Way. County Commissioners. </p> <p>An order of county commissioners, that damages for the alteration and widening of a certain highway under Pub. Sts. c. 49, § 1, shall be paid by the town in which the land lies, contrary to Pub. Sts. c. 49, § 58, which provides that all such damages shall be paid by the county, is wholly void and of no effect, and can be impeached in any proceeding in which it is material.</p>

Bill for instructions, filed July 28, 1902, by the trustee under the will of James S. Savage. The case came on to be heard before Hammond, J., who at the request of the parties reserved it upon the pleadings for determination by the full court; such decree to be made as equity and justice might require.

<p> Elections. Haverhill. Mandamus. Certiorari. </p> <p>Under R. L. c. 11, § 238, a cross marked on a ballot in the square opposite a blank, and next below the square opposite the name of a candidate, cannot be counted as a vote for that candidate, although the person who marked it voted by a cross in the proper square for each of the other nominees of the same political party, eleven in number, whose names were on the ballot..</p> <p>The provision of R. L. c. 11, § 267, relating to recounts of ballots cast at a city or town election, that “ the records so amended shall stand as the true records of the election,” does not take away the jurisdiction of this court to correct errors of law appearing upon the face of the record.</p> <p>Under St. 1867, c. 251, § 9, although the aldermen of Haverhill are the final judges of the election of aldermen, they are not the final judges of the election of the mayor.</p> <p>Mandamus will lie against the registrars of voters of a city commanding them, upon a recount under R. L. c. 11, § 267, not to count certain ballots cast for mayor on which the voter’s choice cannot be determined, to make and sign a statement of the questions raised by the application for a recount of the votes cast for mayor, omitting the ballots thus defective as votes for any person for that office, and to return this statement to the city clerk.</p> <p>In this case it was found unnecessary to determine whether the action of a board of registrars of voters in recounting votes under R. L. c. 11, § 267, is purely ministerial, so that certiorari will not lie to correct an error in their returns.</p>

<p>Bill in equity, filed October 29, 1900, by a creditor of a foreign corporation, for himself and other creditors, to enforce the liability of the defendants as officers and directors under Pub. Sts. c. 106, § 60, made applicable to foreign corporations by St. 1895, c. 311, and now embodied in R. L. c. 110, § 58.</p> <p>In the Superior Court the case was heard upon the pleadings and a master’s report by Hardy, J., who reported it for determination by this court.</p>

<p>Executors and Administrators, Petition to sell real estate.</p> <p>The real estate of an intestate liable to be sold, under R. L. c. 146, § 1, when the personal estate is insufficient to pay debts, includes any interest which the intestate, had in the premises described in the petition for leave to sell, and the administrator is not obliged to set out the precise character of that interest in his petition. Therefore it is not necessary to allege that the property is subject to the rights of the husband of the intestate as tenant by the curtesy, or to taxes, or that- the record title is in a third person to whom it has been conveyed fraudulently.</p> <p>On a petition to. sell1 real estate of an intestate under R. L. c. 146, § 1, the real estate liable to be. sold includes lands fraudulently conveyed to another, and in such a case it is right to refuse to rule that the petition is for a license to sell the estate of a stranger.</p> <p>On a petition to sell real estate of an intestate under R. L. c. 146, § 1, there is no obligation upon the administrator to pay off incumbrances or to settle with incumbrancers, and therefore it is right to refuse to rule, as matter of law, that it is inexpedient to grant a license on account of the condition of the title. As to incumbrances the purchaser must look out for himself.</p> <p>On an application to sell real estate of an intestate under R. L. c. 146, § 1, where the real estate stands in the name of a third person, to whom the administrator contends that it has been conveyed fraudulently, it is not necessary for the petition to contain an allegation that the premises were conveyed fraudulently, as the question cannot be determined in that proceeding, but, after leave to sell has been obtained, can be tried in the way provided by R. L. c. 146, § 17.</p>

Two petitions, dated respectively December 16, 1898, and March 6, 1899, the first for damages for the taking of land of the petitioner at the corner of Harrison Avenue and Way Street in Boston by the respondent railroad company on March 17, 1898, under the provisions of St. 1896, e. 516, and the second for damages to the lessees .of the premises from the taking above named and from the laying out, construction and maintenance of the road of the respondent under the…

<p>Appeal from a decree of the Probate Court for the County of Middlesex allowing the will of Martha E. Wyman, late of Chelmsford, upon a petition filed in that court on November 13, 1900.</p> <p>Three issues were sent by a justice of this court to the Superior Court for trial, and were tried in that court before Aiken, J.</p> <p>The following is a copy of the instrument allowed by the Probate Court as the will of Martha E. Wyman, the portions quoted in the findings of the jury being enclosed in brackets:</p> <p>“Be it remembered, that I, Martha E. Wyman of Chelmsford in the County of Middlesex and Commonwealth of Massachusetts, being of sound mind and memory, but knowing the uncertainty of this life, do make this my last will and testament.</p> <p>“ After the payment of my just debts and funeral charges, I bequeath and devise as follows:</p> <p>“ To Lenore A. Dow of Waltham, Mass., the sum of five dollars.</p> <p>“ To Fernando A. Dow of Strong, Me., the sum of five dollars. Said Lenore A. Dow and Fernando A. Dow being my two sons and only children.</p> <p>“ To Bertha L. Nickless formerly Teabo all my dresses, clothes, jewelry and wearing apparel.</p> <p>“ To the City of Lowell a municipal corporation in said county the sum of one hundred dollars to pay for perpetual care of my lot in the Edson Cemetery in said Lowell and to be applied to no other purpose.</p> <p>“ I hereby order that my executors pay the sum of three hundred dollars for a proper monument to be erected on my said lot in said Edson Cemetery and I hereby devise and bequeath that sum for that purpose.</p> <p>“ To my brother William H. Webster of said Chelmsford all my real estate and the horse, cow, carriages, harnesses, wagons and all the personal property to be found on said real estate not otherwise disposed of. Said William H. Webster -asd-his- heire may sell or dispose of said real and personal property as he sees fit [only so far as may be necessary for his support.]</p> <p>“To my said brother William H. Webster eleven shares of stock in the Cooperative Store of said Lowell, Mass., whose place of business is now on Middlesex Street in said Lowell; Also Seven Shares of Stock of the Erie Telephone Company, having its place of business in said Lowell.</p> <p>“ To Miss Orena L. Webster of said Chelmsford all my silver spoons.</p> <p>[“ Said William H. Webster shall not sell any part of said property unless such sale is necessary for his support.]</p> <p>“ I hereby appoint Bernard D. O’Connell of New York city, but formerly of Lowell, Mass., to be the executor of this my last Will and testament.</p> <p>["To Saint John’s Hospital a body corporate having its place of business in said Lowell j hereby devise and bequeath any and all remainder of my property and any remainder of property devised and bequeathed to said William H. Webster that may not be sold at the time of his death and I now limit the previous devise and bequest to said to said William H. Webster so that any and all remaining at the time of his death shall go to said Saint John’s Hospital.</p> <p>“ The words ' and his heirs ’ stricken out before signing; also ‘ to said.’ The word ‘ Lowell ’ inserted.]</p> <p>“ In testimony whereof, I hereunto set my hand, and in the presence of three witnesses declare this to be my last will, this thirtieth day of October in the year one thousand nine hundred.</p> <p>her</p> <p>Martha E. X Wyman.</p> <p>“ On this thirtieth day of October A. D. 1900. Martha E. Wyman of Chelmsford, Massachusetts, has signed the foregoing instrument by making her mark in our presence, declaring it to be her last will, and as witnesses thereof, we three do now, at her request, in her presence, and in the presence of each other, hereto subscribe our names. John Howland. William H. Shedd. Grace Carleton Shedd. Bernard D. O’Connell. Orrin Pierce.”</p> <p>The issues and the findings of the jury were as follows:</p> <p>1. At the time óf the execution of the will, was Martha E. Wyman a woman of sound and disposing mind and memory ?</p> <p>The jury answer “ Yes.”</p> <p>2. Was the making and execution of the instrument offered for probate secured by the fraud and undue influence of Bernard D. O’Connell, in part or in whole, and if in part, what part ?</p> <p>The jury answer “ Yes, in part.”</p> <p>“ Only so far as may be necessary for his support.” “ Said William H. Webster shall not sell any part of such propertyi unless such sale is necessary for his support.”</p> <p>“To St. John’s Hospital a body corporate, having its place of business in said Lowell, I hereby devise and bequeath, any and all remainder of my property, devised and bequeathed to William H. Webster that may not be sold at the time of his death, and I now limit the previous devise and bequest to said William H. Webster so that any, and all remaining at the time of his death go to said St. John’s Hospital.</p> <p>“ The words 6 and his heirs ’ stricken out before signing; also ‘to said’ the word Lowell inserted.”</p> <p>3. Was the instrument offered for probate executed by Martha E. Wyman as and for her last will and testament?</p> <p>The jury answer “Yes. With the exception of that portion claimed to be added by undue influence in answer to question two.”</p> <p>The petitioner, and the St. John’s Hospital, named in the instrument as residuary legatee, alleged exceptions.</p>

<p>Bill in equity, filed J une 20, 1902, against the trustee in bankruptcy of A. H. Zunz to restrain him from enforcing an attachment against four shares of the capital stock of the Boston and Albany Railroad Company, attached as the property of Rosa W. Zunz, who sold the shares to the plaintiffs.</p> <p>The bill alleged, that the plaintiffs were copartners carrying on a banking business in the city of New York, that on March 1 or 2, 1900, Rosa W. Zunz, being the owner of the certificate representing the four shares of stock in question and having owned it since October 17, 1899, sold and delivered it to the plaintiffs, together with a written transfer of it signed by her on the back of the certificate, and that the plaintiffs purchased the certificate from her in good faith and paid her for it the full market value of $239.75 per share; that on March 3, 1900, the plaintiffs caused the certificate to be presented to the railroad company for transfer to them, and the plaintiffs then for the first time learned, that on February 20, 1900, the defendant, Friedman, as trustee in bankruptcy of one A. H. Zunz, had brought an action in the Superior Court against Rosa W. Zunz, for $5,000, and on February 21, 1900, had caused the writ in that action to be served upon the railroad company by an attachment of the four shares of stock standing in her name; and that the railroad company refused to make the requested transfer to the. plaintiffs unless and until the attachment should be dissolved.</p> <p>The answer admitted all the allegations of the bill.</p> <p>It was agreed that the following was a by-law of the Boston and Albany Railroad Company: “ Art. VII. The directors shall be, and they are hereby authorized to determine the form of the certificates for the capital stock of the corporation, and the manner of transferring and recording the same. They shall also establish a corporate seal, and determine the form thereof.”</p> <p>It also was agreed: “ if competent and material, that by custom the certificates of stock in Massachusetts corporations, when endorsed in blank and delivered by the owner, are accepted by transferees like negotiable instruments, without inquiry as to the rights, if any, of third parties.”</p> <p>The case came on to be heard before Hammond, J., who reserved it for determination by the full court.</p>

<p>Complaint, received and sworn to on January 8,1902, in the Second District Court of Eastern Worcester, charging that the defendant on Sunday, January 5,1902, at Clinton, did expose and beep for sale intoxicating liquors with intent unlawfully to sell the same.</p> <p>At the trial in the Superior Court before Fox, J., it appeared, that the defendant was the keeper of a hotel in Clinton known as the Clinton House, and that he held for a term expiring on April 30, 1902, an innholder’s license, and licenses to sell intoxicating liquors of the first and fourth classes, upon the Clinton House premises.</p> <p>At the close of the evidence, the defendant presented the following requests for rulings:</p> <p>“ 1. If the keeping complained of was made by a servant of the defendant and contrary to the express orders given to him by the defendant concerning the conduct of the defendant’s business, then said keeping was not made by the defendant contrary to the terms of his license and contrary to law.</p> <p>“ 2. The jury must find beyond a reasonable doubt that the keeping complained of was made by a servant of the defendant by the authority of the defendant or with his consent in order to find the defendant guilty under this complaint.</p> <p>“ 3. If the jury do not find that the crime charged in the complaint was committed after eleven o’clock on the day alleged, evidence relating to this point being the only evidence introduced at the trial in the court below, the defendant must be acquitted.</p> <p>“ 4. The defendant cannot be convicted of the crime charged, on the evidence of the witnesses, Jacobs and Thompson, as to what occurred in the morning or the afternoon of the day in the complaint prior to eleven o’clock P. M., no evidence relating to any time earlier than eleven o’clock having been introduced at the trial in the court below.</p> <p>“ 5. If the defendant having a license as an innholder and to sell intoxicating liquors of the first class had given orders to his servants and agents not to sell any liquor after eleven o’clock in the afternoon, and a servant or agent of the defendant honestly believing it was then eleven o’clock did close the room in which the acts complained of were alleged to have taken place, although by reason of an error in the time-piece of said agent, which was unknown to him, it was four or five minutes after eleven o’clock, the defendant must be acquitted.</p> <p>“ 6. If the servant or agent of the defendant in honestly attempting to conduct the business of the defendant in accordance with the express orders given him by the defendant, owing to an honest mistake as to the exact time of day which it then was, which mistake was caused by an error in the time-piece which he had, did not close the room in which the acts complained of were alleged to have taken place until four or five minutes after eleven o’clock, then the defendant cannot be held guilty under this complaint.</p> <p>“ 7. If the acts alleged in this complaint were committed by a servant of the defendant in the absence of the defendant and without the knowledge of the defendant and contrary to the express orders of the defendant concerning the conduct of his business, then said acts do not constitute a keeping of intoxicating liquors by the defendant with the intent to sell contrary to law.</p> <p>“ 8. The master cannot be held criminally for what a servant does contrary to his orders and without any authority express or implied, merely because it is in the course of his business and within the scope of the servant’s employment.</p> <p>“ 9. If there is any evidence that the keeping complained of was made by an agent of the defendant contrary to the express instructions of the defendant concerning the conduct of his business, although said keeping was made by said agent of the defendant in the course of the defendant’s business, there is no presumption that said keeping was made with the consent of the defendant.</p> <p>“ 10. If the jury find that sales were made unlawfully by the regular employees of the defendant, the burden of proof is not upon the defendant to show that he did in good faith give instructions to his employees, intended to be obeyed and enforced, that no sale should be made contrary to the provisions of the license, but the burden is upon the Commonwealth upon this as upon and as a part of the general issue.”</p> <p>At the close of the evidence the defendant also requested the judge to direct the Commonwealth to elect whether it contended that the alleged illegal keeping was after eleven o’clock on the day in question or during the forenoon and afternoon of that day. The Commonwealth refused to elect, and the judge refused to order it to do so.</p> <p>The judge refused to make any of the foregoing rulings. Such portions of the judge’s charge as are material are stated by the court. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability, duty to warn.</p> <p>A girl fifteen years of age, by permission of the superintendent of a cotton mill, was for four months under the tuition of her cousin, a weaver in the mill, who ' taught her how to weave, but did- not let her clean a loom, because he could do it quicker himself, and did not explain to her the danger of being caught in the cog wheels, in plain sight at the end of each loom, because he “ never thought about it.” Later the girl was put to work and ran four looms for two weeks, and then was injured while attempting to clean the end of a loom by using a brush, the bristles being caught in the cog wheels and drawing in one finger, crushing it. The officer of the mill who set the girl to work did not undertake to instruct her, being informed by her cousin that she could run four looms. In an action for the injury, the jury found specially, that the plaintiff did not know that if her hand came in contact with the moving cog wheels she would be injured, and that the exercise of due care did not require her to know this. Held, that there was no evidence to warrant a finding that the mill owner, or the officer who set the plaintiff to work, believed or had reason to believe that she was in ignorance of the cog wheels and of the danger to one who should get her finger caught, or that she needed to be warned against such danger.</p>

<p>Way, Defect in highway. Evidence, Remoteness.</p> <p>Where there is nothing on the surface of a highway to indicate that a culvert under it is out of repair or to indicate that' an examination is necessary, the failure of the city in which the highway lies to make an examination during a period of twenty years does not justify a finding that the city by the exercise of proper care and diligence might have had notice that the culvert was out of repair, so as to make the city liable to a traveller whose horse breaks through the roadway into the culvert.</p> <p>In an action against a city for an injury from an alleged defect in a highway, caused by the rotten condition of the timbers of a culvert under the roadway, if there is evidence tending to show that the culvert and the roadway remained practically in the same condition for ten or twelve days after the accident, evidence as to the condition of the timbers at the expiration of that time is admissible.</p>

<p>Tort by a passenger in an electric car of the defendant for an injury caused in the manner described'by the court. Writ in the Municipal Court of the City of Boston dated June 26,1901.</p> <p>On appeal to the Superior Court the case was tried before Maynard, J., who refused to rule that as a matter of law the plaintiff could not recover, and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $425; and the defendant alleged exceptions.</p>

<p>Pleading, Declaration.</p> <p>The objection that a count of a declaration embraces two causes of action must be taken by demurrer.</p>

Tort against a deputy sheriff for wrongfully entering the hat shop of the plaintiff and remaining there for twenty-four hours after being requested to leave, thereby greatly interfering with the plaintiff’s business, with a count for the conversion of five hundred hats. Writ dated April 17,1899. In the Superior Court Pierce, J. refused to rule that upon all the evidence the plaintiff was not entitled to recover, or to make certain other rulings requested by the defendant.

<p>Bill in equity, filed November 8, 1901, to hold the defendant Chase, the president and a director of the defendant Gazette Company, liable for the debts of that corporation, under Pub. Sts. c. 106, § 60, on the ground that he signed a certificate required by law knowing it to be false.</p> <p>The case came on to be heard before Lathrop, J., who at the request of the parties reserved it upon the pleadings and an agreed statement of facts for the consideration of the full court, such decree to be entered as equity and justice might require.</p> <p>The agreed facts were as follows: In 1896 the defendant Chase and other persons acquired the stock of the Gazette Company of Maine, a Maine corporation, having a paid in capital stock of $55,000. In April, 1898, it was determined by the stockholders of this Maine corporation, to be for the best interest of the company and its stockholders, to change the company into a Massachusetts corporation, and by unanimous consent of the stockholders of the Maine corporation the change was effected as follows: The Massachusetts company was organized under the name of The Gazette Company, with a capital stock of $14,000, divided into four hundred and forty shares of $100 each. The defendant Chase borrowed from the Worcester National Bank $44,000 on his personal promissory note. At the same time an account was opened in the Worcester National Bank for The Gazette Company of Massachusetts, and the $44,000, the proceeds of the note, were credited to that account in payment for the four hundred and forty shares of the Gazette Company of Massachusetts. These things were done on April 26, 1898. David B. Howland was treasurer of the Maine corporation and also of the Massachusetts corporation. The defendant Chase was a director of the Worcester National Bank, a director and stockholder of the Maine corporation, and a director and- stockholder and president of the Massachusetts corporation. The certificate of payment of capital in cash was filed in the office of the secretary of the Commonwealth on April 27, 1898.</p> <p>The Gazette Company of Maine then made a bill of sale to Charles A. Chase, David B. Howland, and John H. Jewett of all its assets, consisting of printing appliances, machinery, materials, supplies, and business and good-will, subject to debts of about $19,000. The directors of the Gazette Company of Massachusetts, at a meeting on April 29, 1898, passed the following vote: “Voted to purchase of C. A. Chase, D. B. Howland, and J. H. Jewett, all of Worcester, all their right, title, and interest in certain presses, type, type-setting machines, and other machinery, fixtures, furniture, paper, stock, materials, supplies, cash, accounts due and credits, franchises, and good-will of business and all the personal property and assets of every name and nature, recently purchased by said parties from ‘ The Gazette Company,’ a corporation of the State of Maine; and to pay therefor the sum of $44,000 and to agree in consideration of such sale and transfer to assume and pa)r all existing debts of The Gazette Company, the said Maine Corporation, and to assume and perform all existing contracts of said Maine Corporation, as far as said Maine Corporation is legally bound to perform the same; and the President and Treasurer are hereby authorized and directed to make said payment and in the name of the Company to execute all papers necessary to carry out this vote.” In accordance with this vote a bill of sale was made to the Gazette Company of Massachusetts, and on April 29, 1898, a check was drawn on the Worcester National Bank to the order of Charles A. Chase for $44,000 signed “ The Gazette Company of Massachusetts, David B. Howland, Treasurer.” This check was not presented for payment to the Worcester National Bank until May 17, 1898. It was indorsed, “pay to the order of the Gazette Company of Maine, Charles A. Chase,” and given to David B. Howland, treasurer of the Gazette Company of Maine, by the defendant Chase. Mr. Howland indorsed the check, “ The Gazette Company of Maine, David B. How-land, Treasurer,” and gave it to the defendant Chase, who passed it to the Worcester National Bank in settlement of his note for that amount. The stockholders of the Maine company then received from the defendant Chase four shares of the Massachusetts company for every five shares held by them in the Maine company. No payment of the capital stock of the Gazette Company of Massachusetts was made except as above stated, and no check was drawn by the Gazette Company of Massachusetts against the credit of $44,000 other than the check above mentioned. It was agreed, that the defendant Chase might be considered to have proved, if admissible, against the objection of the plaintiff, that he acted under and in accordance with the advice of counsel in all these transactions.</p>

<p>Contract for 1691.02 for goods sold and delivered according to an account annexed. Writ dated November 2, 1900.</p> <p>At the trial in the Superior Court Sheldon, J. ordered a verdict for the defendant on the ground stated in the opinion; and the plaintiff alleged exceptions.</p>

<p>Practice, Civil, Exceptions,</p> <p>Under Pub. Sts. c. 163, § 8, St. 1895, c. 153, § 1, notice of the filing of exceptions must be given to the adverse party within twenty days after the verdict.</p>

Contract against the maker of a promissory note for a balance alleged to be due after a foreclosure sale and application of the proceeds. Writ dated November 27, 1899.

Contract for alleged breach of an agreement of the defendant, a corporation called P. and F. Corbin, to sell and deliver to the plaintiff all its production of steel scrap for one year from March 1,1901. Writ dated October 9, 1901. In the Superior Court the case was tried before Aiken, J., without a jury. It was agreed that, if the plaintiff was entitled to recover, it was entitled to the sum of $487.79.

<p>Contract for a balance of $733.65 for plate glass alleged to have been furnished for the defendant by the plaintiff, used principally in the Hotel Somerset in Boston and a small part of it in the Hotel Boulevard in Newton, for both of which buildings the defendant had sub-contracts including the window glass. Writ dated May 9, 1899.</p> <p>In the Superior Court the case was heard by Lawton, J., without a jury, upon an auditor’s report. The judge refused to make the rulings requested by the plaintiff, and found for the plaintiff in the sum of $21.81, for the glass furnished for the hotel in Newton, for which the defendant had filed an offer of judgment. The plaintiff alleged exceptions.</p>

<p>Tort, under St. 1886, c. 140, (R. L. c. Ill, § 267,) for causing the death of the plaintiff’s intestate by reason of the gross negligence of the agents or servants of the defendant, with a count at common law for conscious suffering of the intestate. Writ dated November 29, 1899.</p> <p>At the trial in the Superior Court Pierce, J., at the close of the plaintiff’s evidence, ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

Appeal, under St. 1890,> e. 127, and acts in amendment thereof, from a decision of the assessors of taxes of the town of Revere upon a petition filed November 3, 1900. In the Superior Court the case was heard by Bond, J., upon the report of a commissioner appointed under the statute. The judge refused to make the rulings requested by the respondent, and found for the petitioner in the sum of $244.68.

<p>. The following order was passed by the House of Representatives on January 14, 1903, and on January'16 was transmitted to the Justices of the Supreme Judicial Court. On January 28 the Justices returned the answer which is subjoined.</p>